EXHIBIT 10.4
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$100,000,000
C$35,000,000
CREDIT AGREEMENT
Dated as of August 13, 1996
XXXXXX XXXXX CORP.
and
XXXXXX XXXXX COMMAND COMPANY,
as Borrowers
The Several Lenders
from Time to Time Parties Hereto
CANADIAN IMPERIAL BANK OF COMMERCE
as Canadian Administrative Agent
and
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY
as US Administrative Agent
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS............................................................. 1
1.1 Defined Terms............................................................. 1
1.2 Other Definitional Provisions............................................. 26
SECTION 2. THE US COMMITMENTS...................................................... 26
2.1 The US Commitments........................................................ 26
2.2 Procedure for US$ Loan Borrowing.......................................... 27
2.3 Conversion and Continuation Options....................................... 27
2.4 Minimum Amounts and Maximum Number of Eurodollar Tranches................. 28
SECTION 3. THE CANADIAN COMMITMENTS................................................ 28
3.1 The Canadian Commitments.................................................. 28
3.2 Procedure for C$ Loan Borrowing........................................... 28
3.3 Bankers' Acceptances...................................................... 29
3.4 Conversion Option......................................................... 32
3.5 Circumstances Making Bankers' Acceptances Unavailable..................... 33
SECTION 4. GENERAL PROVISIONS...................................................... 33
4.1 Repayment of Loans; Evidence of Debt...................................... 33
4.2 Commitment Fee............................................................ 34
4.3 Termination or Reduction of Commitments................................... 35
4.4 Optional and Mandatory Prepayments........................................ 36
4.5 Interest Rates and Payment Dates.......................................... 39
4.6 Computation of Interest and Fees.......................................... 41
4.7 Inability to Determine Eurodollar Rate.................................... 41
4.8 Pro Rata Treatment and Payments........................................... 42
4.9 Illegality................................................................ 43
4.10 Requirements of Law...................................................... 43
4.11 Taxes.................................................................... 45
4.12 Indemnity................................................................ 46
4.13 Change of Lending Office................................................. 47
SECTION 5. REPRESENTATIONS AND WARRANTIES.......................................... 47
5.1 Financial Condition....................................................... 47
5.2 No Change................................................................. 48
5.3 Corporate Existence; Compliance with Law.................................. 48
5.4 Corporate Power; Authorization; Enforceable Obligations................... 48
5.5 No Legal Bar.............................................................. 49
5.6 No Material Litigation.................................................... 49
5.7 No Default................................................................ 49
5.8 Ownership of Property; Liens.............................................. 49
5.9 Intellectual Property..................................................... 49
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5.10 No Burdensome Restrictions............................................ 50
5.11 Taxes................................................................. 50
5.12 Margin Regulations.................................................... 50
5.13 ERISA................................................................. 50
5.14 Investment Company Act; Other Regulations............................. 51
5.15 Environmental Matters................................................. 52
5.16 Regulation H.......................................................... 52
5.17 Capitalization........................................................ 53
5.18 Subsidiaries.......................................................... 53
5.19 Restrictions on or Relating to Subsidiaries........................... 53
5.20 Subchapter S Status................................................... 53
5.21 Leases................................................................ 53
5.22 Related Agreements.................................................... 54
SECTION 6. CONDITIONS PRECEDENT................................................. 54
6.1 Conditions to Effectiveness............................................ 54
6.2 Conditions to Initial Loans............................................ 56
6.3 Additional Conditions for Acquisition Loans............................ 57
6.4 Conditions to Each Loan................................................ 59
SECTION 7. AFFIRMATIVE COVENANTS................................................ 59
7.1 Financial Statements, Etc.............................................. 60
7.2 Certificates; Other Information........................................ 60
7.3 Books, Records and Inspections......................................... 61
7.4 Maintenance of Property, Insurance..................................... 62
7.5 Corporate Franchises................................................... 62
7.6 Compliance with Statutes, etc.......................................... 62
7.7 Compliance with Environmental Laws..................................... 62
7.8 ERISA; Canadian Pension Plans.......................................... 63
7.9 End of Fiscal Years; Fiscal Quarters................................... 65
7.10 Performance of Obligations............................................ 65
7.11 Payment of Taxes...................................................... 65
7.12 Use of Proceeds....................................................... 65
7.13 Notices............................................................... 65
7.14 Tax Status............................................................ 66
7.15 Additional Mortgages.................................................. 66
7.16 Additional Stock Pledges.............................................. 67
7.17 Additional Guarantee and Security Agreements.......................... 68
7.18 Mortgaged Properties Documentation.................................... 69
SECTION 8. NEGATIVE COVENANTS................................................... 70
8.1 Liens.................................................................. 70
8.2 Consolidation, Merger, Purchase or Sale of Assets, etc................. 72
8.3 Limitation on Restricted Payments...................................... 73
8.4 Indebtedness........................................................... 73
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8.5 Advances, Investments and Loans.......................................... 74
8.6 Transactions with Affiliates............................................. 74
8.7 Capital Expenditures..................................................... 75
8.8 Fixed Charge Coverage Ratio.............................................. 76
8.9 Interest Coverage Ratio.................................................. 76
8.10 Leverage Ratio.......................................................... 76
8.11 Limitation on Voluntary Payments and Modifications of Indebtedness
and Certain Other Agreements; etc....................................... 77
8.12 Limitation on Issuance of Capital Stock................................. 77
8.13 Business................................................................ 78
8.14 Designation of "Designated Senior Indebtedness"......................... 78
SECTION 9. EVENTS OF DEFAULT...................................................... 78
SECTION 10. THE ADMINISTRATIVE AGENTS............................................. 81
10.1 Appointment............................................................. 81
10.2 Delegation of Duties.................................................... 81
10.3 Exculpatory Provisions.................................................. 82
10.4 Reliance by Administrative Agent........................................ 82
10.5 Notice of Default....................................................... 82
10.6 Non-Reliance on Administrative Agents and Other Lenders................. 83
10.7 Indemnification......................................................... 83
10.8 Administrative Agents in Their Individual Capacity...................... 84
10.9 Successor Administrative Agent.......................................... 84
SECTION 11. MISCELLANEOUS......................................................... 84
11.1 Amendments and Waivers.................................................. 84
11.2 Notices................................................................. 86
11.3 No Waiver; Cumulative Remedies.......................................... 87
11.4 Survival of Representations and Warranties.............................. 87
11.5 Payment of Expenses and Taxes........................................... 87
11.6 Successors and Assigns; Participations and Assignments.................. 88
11.7 Adjustments; Set-off.................................................... 90
11.8 Counterparts............................................................ 91
11.9 Severability............................................................ 91
11.10 Integration............................................................ 91
11.11 GOVERNING LAW.......................................................... 91
11.12 Submission To Jurisdiction; Waivers.................................... 91
11.13 Foreign Currency Judgments............................................. 92
11.14 Acknowledgements....................................................... 92
11.15 WAIVERS OF JURY TRIAL.................................................. 93
11.16 Confidentiality...................................................... 93
11.17 Conflicts............................................................ 93
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SCHEDULES:
Schedule 1.1 Lenders, Commitments and Addresses for Notices
Schedule 5.1 Financial Condition
Schedule 5.2 No Change
Schedule 5.3 Jurisdictions
Schedule 5.8 Real Property
Schedule 5.11 Tax Matters
Schedule 5.15 Environmental Matters
Schedule 5.17 Shareholders
Schedule 5.18 Subsidiaries
Schedule 6.1 Existing Indebtedness
Schedule 7.4 Insurance
Schedule 8.1 Existing Liens
EXHIBITS:
Exhibit A-1 Form of US$ Note
Exhibit A-2 Form of C$ Note
Exhibit B Form of Draft
Exhibit C-1 Form of US$ Borrowing Certificate
Exhibit C-2 Form of C$ Borrowing Certificate
Exhibit D Form of US Global Guarantee and Security Agreement
Exhibit E-1 Form of Canadian Security Agreement
Exhibit E-2 Form of Canadian Demand Debenture
Exhibit E-3 Form of Canadian Debenture Pledge Agreement
Exhibit E-4 Form of Canadian Hypothec
Exhibit F Form of US Mortgage
Exhibit G Form of Pledge and Intercreditor Agreement
Exhibit H-1 Form of Opinion of Special Counsel to Borrowers and Shareholders
Exhibit H-2 Form of Opinion of Canadian Counsel to Canadian Borrower
Exhibit I Form of Assignment and Acceptance
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CREDIT AGREEMENT, dated as of August 13, 1996, among XXXXXX XXXXX
CORP., a New York corporation (the "Company"), XXXXXX XXXXX COMMAND COMPANY, a
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company organized and existing under the laws of the Province of Nova Scotia
(the "Canadian Borrower" and, together with the Company, the "Borrowers"), the
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several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"), Canadian Imperial Bank of Commerce, New York Agency,
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as US Administrative Agent (as hereinafter defined) for the US$ Lenders
hereunder and Canadian Imperial Bank of Commerce, as Canadian Administrative
Agent (as hereinafter defined) for the C$ Lenders hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings:
"Acceptance Fee": the fee payable in C$ to each C$ Lender in respect
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of Bankers' Acceptances computed in accordance with subsection 3.3(e).
"Acquisition Documents": in connection with any Permitted Acquisition,
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any asset purchase agreement, stock purchase agreement, merger agreement or
similar agreement and all other documents entered into or delivered in
connection therewith.
"Acquisition Loan": any Loan the proceeds of which are used to
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finance all or any portion of the purchase price of (and to pay fees and
expenses, and refinance existing Indebtedness in connection with) a
Permitted Acquisition.
"Adjusted EBITDA": for any period, with respect to the Company and
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its Subsidiaries on a consolidated basis, EBITDA of the Company and its
Subsidiaries for such period determined on a pro forma basis after giving
effect to the following adjustments:
(a) any business acquired during such period pursuant to a
Permitted Acquisition shall be deemed to have been acquired on the
first day of such period (and EBITDA attributable to such business
shall be calculated on the basis of the available financial statements
of such business);
(b) any business disposed of during such period pursuant to a
Disposition shall be deemed to have been disposed of on the first day
of such period; and
(c) if, in connection with any Permitted Acquisition, the Company
shall in good faith adopt a program which can reasonably be expected
to result in quantifiable improvements in the operating results of the
acquired
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business, the Company (so long as (i) it shall have delivered to the
Lenders a description of such program, setting forth in reasonable
detail the terms and conditions thereof and (ii) the aggregate amount
of such quantifiable improvements in operating results from such
Permitted Acquisition shall not exceed 15% of the Company's EBITDA for
the then most recently ended period of twelve consecutive months for
which financial statements shall have been delivered to the Lenders
pursuant to the subsection 7.1(a), (b) or (c)) shall be entitled to
assume that the improved operating results projected to result from
such program shall have occurred from the first day of such period to
the date of such Permitted Acquisition.
"Adjustment Date": the second Business Day following receipt by the
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US Administrative Agent of both (a) the financial statements required to be
delivered pursuant to subsection 7.1(a) or 7.1(b), as the case may be, for
the most recently completed fiscal period and (b) the related Compliance
Certificate required to be delivered pursuant to subsection 7.2(b) with
respect to such fiscal period.
"Administrative Agents": the collective reference to the US
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Administrative Agent and the Canadian Administrative Agent.
"Administrative Office": the Canadian Administrative Office or the US
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Administrative Office, as applicable.
"Affiliate": with respect to any Person, any other Person directly or
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indirectly controlling (including but not limited to all directors and
officers of such Person), controlled by, or under direct or indirect common
control with, such Person; provided, however, that for purposes of
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subsection 8.6, an Affiliate of the Company shall include (a) any
Shareholder and any member of the Xxxxxx Group, any spouse of such
Shareholder or such member, such Shareholder's or such member's issue and
any lineal descendants of any such Shareholder or such member or any trust
for the benefit of any such Shareholder or such member or for any spouse,
issue or lineal descendant of such Shareholder or such member and (b) any
Person that directly or indirectly owns more than 5% of any class of the
voting Capital Stock of the Company. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies of such
other Person, whether through the ownership of voting securities, by
contract or otherwise.
"Affiliate Contracts": collectively, all contracts or agreements
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entered into between the Company or any of its Subsidiaries, on the one
hand, and any of its Affiliates, on the other hand.
"Agreement": this Credit Agreement, as amended, supplemented,
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restated or otherwise modified from time to time.
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"Applicable BA Discount Rate": with respect to any C$ Lender, as
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applicable to a Bankers' Acceptance being purchased by such C$ Lender on
any day, the CDOR Rate in effect on such day with respect to such Bankers'
Acceptance.
"Applicable Margin": the rate for the respective Type of Loan set
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forth opposite the range in which the Leverage Ratio in effect on the
initial Borrowing Date (as determined from the certificate delivered on
such Borrowing Date pursuant to subsection 6.2(a)) shall fall, provided
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that if on any Adjustment Date occurring after the initial Borrowing Date
the Leverage Ratio determined from the financial statements relating to
such Adjustment Date (and based upon the Total Net Debt on the date of the
balance sheet included in such financial statements) shall fall within any
of the ranges set forth below then the Applicable Margin for all Loans will
be adjusted on such Adjustment Date (each such adjustment to be effective
until the next succeeding Adjustment Date) to the rate for the respective
Type of Loan set forth opposite the range in which such Leverage Ratio
falls:
Applicable Margin (% per annum)
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Range of
Leverage Ratio Base Rate Loans/ Eurodollar Loans/
-------------- C$ Prime Bankers'
Loans Acceptances
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greater than 5.50
to 1.00 1.75% 2.50%
greater than 5.00 to 1.00
but less than or equal to
5.50 to 1.00 1.50% 2.25%
greater than 4.25 to 1.00
but less than or equal to
5.00 to 1.00 1.25% 2.00%
greater than 3.75 to 1.00
but less than or equal to
4.25 to 1.00 1.00% 1.75%
greater than 3.25 to 1.00
but less than or equal to
3.75 to 1.00 0.75% 1.50%
less than or equal
to 3.25 to 1.00 0.50% 1.25%;
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provided, however, that, the Applicable Margin for any Loan shall not be
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reduced pursuant to the immediately preceding proviso for any period during
which a Default or Event of Default shall have occurred and be continuing;
provided, further that:
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(a) if on or prior to the thirtieth day following the occurrence
of a Default or Event of Default which arises under subsection 9(b),
(c) or (d), such Default or Event of Default has been cured or waived,
then the Applicable Margin during the thirty-day period during which
such Default or Event of Default existed shall be deemed to have been
the Applicable Margin with the applicable reduction determined in
accordance with the table set forth above absent such Default or Event
of Default, and any excess payments of interest made by the applicable
Borrower as a result of the unavailability of the reduction in the
Applicable Margin pursuant to the immediately preceding proviso, so
long as there exists no other Default or Event of Default, shall be
credited by the applicable Lenders to the next interest payment due
from such Borrower in the amount of such excess; and
(b) if any Default or Event of Default referred to in paragraph
(a) above shall not have been cured or waived prior to the thirtieth
day following its occurrence, then, for the period from the date upon
which such Default or Event of Default shall have occurred until two
Business Days following the date upon which such Default or Event of
Default is cured, the Applicable Margin in respect of Loans shall be
1.75% per annum, in the case of Base Rate Loans and C$ Prime Loans,
and 2.50% per annum, in the case of Eurodollar Loans and Bankers'
Acceptances.
"Assignee": as defined in subsection 11.6(c).
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"Available Canadian Commitment": as to any C$ Lender, at a particular
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time, an amount equal to the excess, if any, of (a) the amount of such
Lender's Canadian Commitment at such time over (b) the aggregate principal
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amount of all C$ Loans made by such Lender then outstanding.
"Available US Commitment": as to any US$ Lender, at a particular
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time, an amount equal to the excess, if any, of (a) the amount of such
Lender's US Commitment at such time over (b) the aggregate principal amount
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of all US$ Loans made by such Lender then outstanding.
"BA Discount Proceeds": in respect of any Bankers' Acceptance to be
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purchased by a C$ Lender on any day under subsection 3.3, an amount
(rounded to the nearest whole Canadian cent, and with one-half of one
Canadian cent being rounded up) calculated on such day by dividing:
(a) the face amount of such Bankers' Acceptance; by
(b) the sum of one plus the product of:
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(i) the Applicable BA Discount Rate (expressed as a decimal)
applicable to such Bankers' Acceptance; and
(ii) a fraction, the numerator of which is the number of days
remaining in the term of such Bankers' Acceptance and the
denominator of which is 365;
with such product being rounded up or down to the fifth
decimal place and .000005 being rounded up.
"Bankers' Acceptance": a xxxx of exchange denominated in C$ drawn by
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the Canadian Borrower and accepted by a C$ Lender pursuant to subsection
3.3.
"Base Rate": on any particular date, a rate of interest per annum
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equal to the higher of: (a) the rate of interest most recently announced
by CIBC as its prime rate (which rate is not necessarily intended to be the
lowest rate of interest charged by CIBC in connection with extensions of
credit) for loans denominated in US Dollars; and (b) the Federal Funds Rate
for such date plus .50%.
"Base Rate Loans": US$ Loans the rate of interest applicable to which
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is based upon the Base Rate.
"Borrowing Date": any Business Day specified in a notice pursuant to
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subsection 2.2, 3.2 or 3.3(b)(1) as a date on which a Borrower requests the
relevant Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New York City are authorized or required by law
to close, except that (a) when used in connection with a Eurodollar Loan,
"Business Day" shall mean any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London, England
and New York, New York and (b) when used in connection with a C$ Loan,
"Business Day" shall mean a day on which banks are open for business in
Xxxxxxx, Xxxxxxx, Xxxxxx but excludes Saturday, Sunday and any other day
which is a legal holiday in Xxxxxxx, Xxxxxxx, Xxxxxx.
"Canadian Administrative Agent": Canadian Imperial Bank of Commerce,
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together with its affiliates, as the agent for the C$ Lenders under this
Agreement and the other Loan Documents.
"Canadian Administrative Office": the Canadian Administrative Agent's
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office located at Xxxxxxxx Xxxxx Xxxx 0, Xxxxxxx, Xxxxxxx, Xxxxxx or such
other office in Canada as may be designated as such by the Canadian
Administrative Agent by written notice to the Borrower and the Lenders.
6
"Canadian Commitment": as to any C$ Lender, its obligation to make C$
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Loans to and purchase Bankers' Acceptances from the Canadian Borrower
hereunder in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Lender's name on Schedule 1.1
as such Lender's "Canadian Commitment", as such amount may be changed from
time to time as provided herein. The original aggregate principal amount of
the Canadian Commitments is C$35,000,000.
"Canadian Debenture Pledge Agreements": the Debenture Pledge
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Agreements to be executed and delivered by the Canadian Borrower,
substantially in the form of Exhibit E-3, as the same may be amended,
supplemented or otherwise modified from time to time.
"Canadian Demand Debentures": the Demand Debentures to be executed
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and delivered by the Canadian Borrower, substantially in the form of
Exhibit E-2, as the same may be amended, supplemented or otherwise modified
from time to time.
"Canadian Dollars" or "C$": lawful currency of Canada.
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"Canadian Exchange Rate": on a particular date, the rate at which C$
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may be exchanged into US Dollars, determined by reference to the Bank of
Canada noon rate as published on the Reuters Screen page BOFC. In the
event that such rate does not appear on such Reuters page, the "Canadian
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Exchange Rate" shall be determined by reference to any other means (as
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selected by the Canadian Administrative Agent) by which such rate is quoted
or published from time to time by the Bank of Canada (in each case as in
effect at or about 12:00 Noon, Toronto time, on the Business Day
immediately preceding the relevant date of determination); provided, that
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if at the time of any such determination, for any reason, no such exchange
rate is being quoted or published, the Canadian Administrative Agent may
use any reasonable method as it deems applicable to determine such rate,
and such determination shall be prima facie evidence of the accuracy
thereof.
"Canadian Hypothec": the moveable hypothec to be executed and
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delivered by the Canadian Borrower, substantially in the form of Exhibit X-
0, as the same may be amended, supplemented or otherwise modified from time
to time.
"Canadian Lending Office": as to each C$ Lender, the office in Canada
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specified as the "Canadian Lending Office" of such Lender on Schedule 1.1
or in an Assignment and Acceptance or such other office in Canada as may be
designated by such Lender by written notice to the Company and the Canadian
Administrative Agent.
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"Canadian Mortgage": a mortgage to be provided by the Canadian
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Borrower or a Subsidiary thereof with respect to a Canadian Mortgaged
Property pursuant to the provisions set forth in the relevant Canadian
Demand Debenture and Canadian Debenture Pledge Agreement.
"Canadian Mortgaged Properties": all real property listed and
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identified as such in Part B of Schedule 5.8 and designated as such.
"Canadian Pension Plan": any plan, program, arrangement or
---------------------
understanding that is a pension plan for the purposes of any applicable
pension benefits or tax laws of Canada (whether or not registered under any
such laws) which is maintained or contributed to by (or to which there is
or may be an obligation to contribute of), any Borrower or any Subsidiary
of the Company in respect of any person's employment in Canada or a
province or territory thereof with the Company or any Subsidiary of the
Company and all related agreements, arrangements and understandings in
respect of, or related to, any benefits to be provided thereunder or the
effect thereof on any other compensation or remuneration of any employee.
"Canadian Security Agreement": the Canadian Security Agreement to be
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executed and delivered by the Canadian Borrower, substantially in the form
of Exhibit E-1, as the same may be amended, supplemented or otherwise
modified from time to time.
"Canadian Security Documents": the collective reference to the
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Canadian Demand Debentures, Canadian Debenture Pledge Agreements, the
Canadian Hypothec, and the Canadian Security Agreement and all other
security documents hereafter delivered to the Canadian Administrative Agent
granting a Lien on any asset or assets of the Canadian Borrower or any
Canadian Subsidiary to secure the obligations and liabilities of the
Canadian Borrower hereunder and under any of the other Loan Documents or to
secure any guarantee by any Canadian Subsidiary of any such obligations and
liabilities.
"Canadian Subsidiary": any Subsidiary that is incorporated or
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organized under the laws of Canada or any province thereof.
"Capital Expenditures": as defined in subsection 8.7.
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"Capital Stock": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Capitalized Lease Obligations": Indebtedness represented by
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obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP; the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in
accordance with GAAP.
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"Cash Equivalents": (i) securities issued or directly and fully
----------------
guaranteed or insured by the United States or any agency or instrumentality
thereof or Canada or any province thereof (provided that the full faith and
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credit of the United States or Canada or any province thereof is pledged in
support thereof) having maturities of not more than six months from the
date of acquisition, (ii) time deposits and certificates of deposit of any
Lender or any commercial bank incorporated in the United States or Canada
of recognized standing having capital and surplus in excess of
US$200,000,000 and having, or which is the principal banking subsidiary of
a bank holding company having, a long-term unsecured debt rating of at
least "A" or the equivalent thereof from Standard and Poor's Ratings
Services ("S&P") or "A-2" or the equivalent thereof from Xxxxx'x Investors
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Service, Inc. ("Moody's"), or at least A or the equivalent thereof by
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Canadian Bond Rating Service Limited or at least A Middle or the equivalent
thereof by Dominion Bond Rating Service Limited with maturities of not more
than six months from the date of acquisition by such Person, (iii)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (i) above entered
into with any bank meeting the qualifications specified in clause (ii)
above, (iv) commercial paper issued by any Lender or any Person
incorporated in the United States or Canada rated at least A-1+ or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moody's or at least A-1+ or the equivalent thereof by Canadian Bond Rating
Service Limited or at least R-I (Middle or High) or the equivalent thereof
by Dominion Bond Rating Service Limited and in each case maturing not more
than six months after the date of acquisition by such Person and (v)
investments in money market funds substantially all of the assets of which
are comprised of securities of the types described in clauses (i) through
(iv) above.
"Casualty Event": with respect to any property or assets of any
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Person, any loss of or damage to, or any condemnation or other taking of,
such property (other than in the ordinary course of business) for which
such Person or any of its Subsidiaries receives insurance proceeds, or
proceeds of a condemnation award or other compensation.
"C$ Commitment Percentage": as to any C$ Lender at any time, the
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percentage of the aggregate Canadian Commitments then constituted by such
Lender's Canadian Commitment.
"C$ Equivalent": on any date of determination, with respect to any
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amount in US$, the equivalent in C$ of such amount determined by the
Canadian Administrative Agent using the US$ Exchange Rate then in effect.
"C$ Lender": each Lender designated as a "C$ Lender" on Schedule 1.1,
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as such Schedule may be modified from time to time as provided herein.
"C$ Loans": the collective reference to C$ Prime Loans and Bankers'
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Acceptances; for the purposes of this Agreement, the principal amount of
any C$
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Loan constituting a Bankers' Acceptance shall be deemed to be the
undiscounted face amount of such Bankers' Acceptance.
"C$ Note": as defined in subsection 4.1(g).
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"C$ Prime Loans": C$ Loans at such time as they bear interest at a
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rate based upon the C$ Prime Rate.
"C$ Prime Rate": with respect to a C$ Prime Loan, on any day, the
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greater of (a) the annual rate of interest announced from time to time by
CIBC as its reference rate then in effect for determining interest rates on
C$ denominated commercial loans in Canada and (b) the annual rate of
interest equal to the sum of (i) the CDOR Rate and (ii) 0.50% per annum.
"CDOR Rate": on any date, the per annum rate of interest which is the
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rate based on the rate applicable to C$ bankers' acceptances for a term of
30 days (in the case of the definition of "C$ Prime Rate") or for a term
equivalent to the term of, and for amounts comparable to the amount of, the
relevant Bankers' Acceptances (in the case of the definition of "Applicable
BA Discount Rate") appearing on the "Reuters Screen CDOR Page" (as defined
in the International Swap Dealer Association, Inc. definitions, as modified
and amended from time to time) for acceptances of Schedule I banks under
the Bank Act (Canada) as of 10:00 A.M., Toronto time, on such date, or if
such date is not a Business Day, then on the immediately preceding Business
Day; provided, however, that if no such rate appears on the Reuters Screen
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CDOR Page as contemplated, then the CDOR Rate on any date shall be
calculated as the arithmetic mean of the rates for the term and amount
referred to above applicable to C$ bankers' acceptances quoted by CIBC as
of 10:00 A.M., Toronto time, on such date or, if such date is not a
Business Day, then on the immediately preceding Business Day.
"CERCLA": the Comprehensive Environmental Response Compensation and
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Liability Act of 1980, as the same may be amended from time to time, 42
U.S.C. (S)9601 et seq.
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"Change of Control": with respect to the Company: (a) any Person
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(including a Person's Affiliates and associates), other than a Permitted
Holder, becomes the beneficial owner (as defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of more
than 50% of the total voting power of the Company's Common Stock;
(b) any Person (including a Person's Affiliates and associates), other
than a Permitted Holder, becomes the beneficial owner of more than 33-1/3%
of the total voting power of the Company's Common Stock, and the Permitted
Holders beneficially own, in the aggregate, a lesser percentage of the
total voting power of the Common Stock of the Company than such other
Person and do not have the
10
right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Company;
or
(c) J. Xxxxx Xxxxxx shall cease to be the President of the Company;
provided, however, that such event will not constitute a Change of Control
-------- -------
if the Company appoints a successor to J. Xxxxx Xxxxxx within 60 days of
the occurrence of such event and such successor is satisfactory to the
Required Lenders.
"CIBC": Canadian Imperial Bank of Commerce, a Canadian chartered
----
bank, or one or more of its agencies, branches or affiliates in its or
their respective capacity or capacities, as the case may be, as a Lender or
Lenders hereunder.
"Claims": as defined in the definition of "Environmental Claims."
------
"Class A Common Stock" as defined in subsection 5.17.
--------------------
"Class B Common Stock" as defined in subsection 5.17.
--------------------
"Client Acquisition Costs": the capitalized unreimbursed costs of
------------------------
acquiring and moving records of new clients into the facilities of either
Borrower or any Subsidiary thereof.
"Closing Date": the date on which the conditions precedent set forth
------------
in subsection 6.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral": all assets of the Loan Parties, now owned or
----------
hereinafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment": with respect to any Lender, such Lender's US Commitment
----------
or Canadian Commitment, as the case may be.
"Commitment Percentage": as to any Lender at any time, the percentage
---------------------
which such Lender's Commitment then constitutes of the aggregate
Commitments (or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such
Lender's Loans then outstanding constitutes of the aggregate principal
amount of the Loans then outstanding); all amounts denominated in C$ shall
be included in any computations pursuant to this definition at the US$
Equivalent thereof.
"Commitment Period": as to the Commitment of any Lender, the period
-----------------
from and including the Closing Date to but not including the Termination
Date or such earlier date as the Commitments shall terminate as provided
herein.
11
"Common Stock": all Capital Stock of such Person that is generally
------------
entitled to (i) vote in the election of directors of such Person or (ii) if
such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will
control the management and policies of such Person.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with the Company within the meaning of
Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": as defined in subsection 7.2(b).
----------------------
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Corporate Buy-Sell Agreement": the Amended and Restated Corporate
----------------------------
Buy-Sell Agreement between the Company and Xxxxxxxxx X. Xxxxxxx, Xxxxxxxx
Xxx, Xxxxxxx X. Xxx, Xx., Xxxxxxxxxxx Xxxxxx, J. Xxxxx Xxxxxx, Xxx X.
Xxxxxx, Xx., Xxxx X. Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxxx X. Xxxxx,
individually and, if applicable, for the benefit of their respective
children, dated as of July 19, 1996, amending and restating the Corporate
Buy-Sell Agreement dated as of October 25, 1985 and as further amended,
supplemented or otherwise modified in accordance with subsection 8.11.
"Current Disposition": as defined in subsection 4.4(b).
-------------------
"Default": any of the events specified in Section 9, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Disposition": any transaction, or series of related transactions,
-----------
pursuant to which either Borrower and/or any of its Subsidiaries sells,
assigns, transfers or otherwise disposes (other than sales of equipment or
inventory in the ordinary course of business) of any property (whether now
owned or hereafter acquired) to any other Person, in each case whether or
not the consideration therefor to be received by such Borrower or a
Subsidiary consists of cash, securities or the swap or exchange of assets
owned by the acquiring Person, except any such transaction between or among
the Borrowers and their Subsidiaries or between or among any such
Subsidiaries of the Borrowers.
"Domestic Subsidiary": with respect to any Person, any Subsidiary of
-------------------
such Person that is incorporated or organized under the laws of the United
States or any state thereof.
12
"Draft": a xxxxx xxxx of exchange, within the meaning of the Bills of
-----
Exchange Act (Canada), in substantially the form set forth in Exhibit B
hereto, drawn by the Canadian Borrower on a C$ Lender, denominated in C$
and bearing such distinguishing letters and numbers as such Lender may
determine, but which at such time, except as otherwise provided herein, has
not been completed or accepted by such Lender.
"Drawing": the creation and purchase of Bankers' Acceptances and/or
-------
the purchase of completed Drafts, by the C$ Lenders pursuant to subsection
3.2.
"EBITDA": for any period for any Person, the consolidated Net Income
------
of such Person and its Subsidiaries, plus, to the extent deducted in
determining such Net Income for such period, (a) Interest Expense, (b)
amortization of intangibles and deferred financing fees, (c) depreciation,
(d) provisions for taxes, and, in the case of the Company, all Tax
Distributions, (e) any extraordinary, unusual or non-recurring gains or
losses or charges, (f) any other non-cash items reducing such Net Income,
all as determined on a consolidated basis in accordance with GAAP and (g)
any amounts charged against such Net Income with respect to payments to
Permitted Holders not exceeding of US$700,000 in any period of twelve
consecutive months; provided that, for purposes of determining EBITDA for
--------
any period that includes any one or more of the calendar months occurring
during the period from August 1, 1995 through July 31, 0000, XXXXXX for
such period shall be increased for each such calendar month by an amount
equal to US$170,000.
"Environmental Claims": any and all administrative, regulatory or
--------------------
judicial actions, suits, written directives, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any
way to any Environmental Law or any permit issued, or any approval given,
under any such Environmental Law (hereafter, "Claims"), including, without
------
limitation, (a) any and all Claims by Governmental Authorities for
enforcement, cleanup, removal, response, remedial or other actions or
damages pursuant to any applicable Environmental Laws and (b) Claims by any
third party pursuant to Environmental Laws seeking damages, contributions,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising from alleged injury or threat of injury
to health, safety or the environment.
"Environmental Costs": any and all costs, fines, penalties, expenses,
-------------------
damages and liabilities, including, without limitation, the fees of
attorneys and environmental consultants, arising directly under
Environmental Laws.
"Environmental Law": any Federal, state, provincial, foreign or local
-----------------
statute, law, rule, regulation, ordinance or rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgment, relating to the
environment, or Hazardous Materials, including, without limitation, CERCLA;
RCRA; the Hazardous Materials Transportation Act, as amended, 49
13
U.S.C. (S) 1801 et seq.; the Federal Water Pollution Control Act, as
-- ---
amended, 33 U.S.C. (S) 1251 et seq.; the Toxic Substances Control Act, 15
-- ---
U.S.C. (S) 2601 et seq.; the Clean Air Act, 42 U.S.C. (S) 7401 et seq.; the
-- --- -- ---
Safe Drinking Water Act, 42 U.S.C. (S) 3808 et seq.; the Oil Pollution Act
-- ---
of 1990, 33 U.S.C. (S) 2701 et seq.; the Emergency Planning and Community
-- ---
Right-To-Know-Act of 1986, 42 U.S.C. (S) 11001 et seq.; any applicable
-- ---
state and local or foreign counterparts or equivalents; and any Canadian
federal, provincial, municipal or local counterparts or equivalents
thereof, including the Canadian Environmental Protection Act, as amended,
the Environmental Protection Act (Ontario), as amended, and the Ontario
Water Resources Act and any foreign counterparts or equivalents thereof;
and the terms and conditions of any environmental permit issued pursuant to
any Environmental Law to either Borrower or its Subsidiaries or any
facility owned or operated by such Borrower or its Subsidiaries.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest
--------------------
Period pertaining to a Eurodollar Loan, the rate per annum determined by
the US Administrative Agent to be the arithmetic mean (rounded to the
nearest 1/100th of 1%) of the offered rates for deposits in US Dollars with
a term comparable to such Interest Period that appears on the Telerate
British Bankers Assoc. Interest Settlement Rates Page (as defined below) at
approximately 11:00 A.M., London time, on the second full Business Day
preceding the first day of such Interest Period; provided, however, that if
-------- -------
there shall at any time no longer exist a Telerate British Bankers Assoc.
Interest Settlement Rates Page, "Eurodollar Base Rate" shall mean, with
respect to each day during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum equal to the rate at which CIBC is offered US
Dollar deposits at or about 10:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Loans are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period. "Telerate
--------
British Bankers Assoc. Interest Settlement Rates Page" shall mean the
-----------------------------------------------------
display designated as Page 3750 on the Telerate System Incorporated Service
(or
14
such other page as may replace such page on such service for the purpose of
displaying the rates at which US Dollar deposits are offered by leading
banks in the London interbank deposit market).
"Eurodollar Loans": US$ Loans the rate of interest applicable to
----------------
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
------------------
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Section 9,
----------------
provided that any requirement for the giving of notice, the lapse of time,
--------
or both, or any other condition, has been satisfied.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated thereunder.
"Existing Credit Agreement": the Second Amended and Restated Credit
-------------------------
Agreement, dated as of February 4, 1993, as amended and restated as of June
30, 1994 and further amended and restated as of October 27, 1995, among the
Borrowers, the banks parties thereto and Banque Paribas, New York Branch,
as agent thereunder.
"Federal Funds Rate": for any particular date, an interest rate per
------------------
annum equal to the interest rate (rounded upward to the nearest 1/16th of
1%) offered in the interbank market to CIBC as the overnight Federal Funds
Rate at or about 10:00 A.M., New York City time, on such day (or, if such
day is not a Business Day, for the next preceding Business Day).
"Fixed Charge Coverage Ratio": for any period, the ratio of (a)
---------------------------
EBITDA of the Company for such period to (b) Fixed Charges for such period.
"Fixed Charges": for any period, the sum of the following for such
-------------
period: (a) Interest Expense, (b) the excess, if any, of the aggregate
principal amount of Loans outstanding on the first day of such period over
the maximum aggregate amount of the Commitments on the last day of such
period, giving effect to the
15
scheduled reductions required under subsection 4.3(a) and 4.3(b), (c)
income taxes paid by the Company and its Subsidiaries, (d) Tax
Distributions and (e) the amount of Capital Expenditures relating to the
Company's normal maintenance program.
"Foreign Subsidiary": any Subsidiary organized under the laws of any
------------------
jurisdiction outside the United States of America.
"GAAP": generally accepted accounting principles in the United States
----
of America in effect from time to time.
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
-------------------- -------------------
without duplication, any obligation of (a) the guaranteeing person or (b)
another Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has issued
a reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
-------------------
(the "primary obligor") in any manner, whether directly or indirectly,
---------------
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
--------
however, that the term Guarantee Obligation shall not include endorsements
-------
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in
good faith.
"Hazardous Materials": (a) any petroleum or petroleum products,
-------------------
radioactive materials, asbestos in any form that is friable, urea
formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of
16
polychlorinated biphenyls, and radon gas in excess of four picocuries per
liter; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," or "pollutants," or
words of similar import, under any applicable Environmental Law; and (c)
any other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority.
"Indebtedness": of any Person at any date, without duplication, (a)
------------
all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than accounts payable or
trade payables and other accrued liabilities incurred in the ordinary
course of business and payable in accordance with customary practices),
provided that amounts deferred and owing with respect to non-competition or
--------
consulting agreements with respect to Permitted Acquisitions or existing on
the Closing Date up to an aggregate amount of $5,000,000 at any one time
outstanding shall not constitute Indebtedness, (b) any other indebtedness
of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (d) all
Capitalized Lease Obligations of such Person, (e) for purposes of
subsection 8.4 and Section 9(e), all obligations of such Person in respect
of any Interest Rate Protection Agreements, and (f) all liabilities secured
by any Lien on any property owned by such Person in circumstances where
such Person has not assumed or otherwise become liable for the payment
thereof, which Indebtedness shall be limited to the lesser of the value of
the property or the amount of the liability.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Interest Expense": for any period for any Person, the total
----------------
consolidated interest expense of such Person and its Subsidiaries for such
period (calculated on an accrual basis without regard to any limitations on
the payment thereof and excluding amortization of deferred financing costs)
in respect of all Indebtedness of such Person for such period plus, without
duplication, that portion of Capitalized Lease Obligations of such Person
and its Subsidiaries representing the interest factor for such period.
"Interest Payment Date": (a) as to any Base Rate Loan or C$ Prime
---------------------
Loan, the last day of each March, June, September and December, (b) as to
any Eurodollar Loan having an Interest Period of three months or less, the
last day of such Interest Period and (c) as to any Eurodollar Loan having
an Interest Period longer than three months, the day which is three months
after the first day of such Interest Period and the last day of such
Interest Period.
17
"Interest Period": with respect to any Eurodollar Loan:
---------------
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Company in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(b) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar Loan
and ending one, two, three or six months thereafter, as selected by
the Company by irrevocable notice to the US Administrative Agent not
less than three Business Days prior to the last day of the then
current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
--------
are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar Loan would
otherwise end on a day that is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Interest Period
into another calendar month in which event such Interest Period shall
end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
(iii) any Interest Period pertaining to a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month; and
(iv) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Interest Rate Protection Agreement": any interest rate protection
----------------------------------
agreement, interest rate future, interest rate option, interest rate cap or
collar or other interest rate hedge arrangement, to or under which the
Company or any of its Subsidiaries is a party or a beneficiary.
"Leverage Ratio": at any date of determination thereof, the ratio of
--------------
(a) Total Net Debt at such date to (b) Adjusted EBITDA for the then most
recently ended period of (i) in the case of the calculation of the
Applicable Margin, four consecutive fiscal quarters, or (ii) in the case of
subsection 8.10(a), twelve
18
consecutive calendar months, for which financial statements shall have been
delivered to the Lenders pursuant to subsection 5.1, 7.1(a), 7.1(b) or
7.1(c), as the case may be.
"Lien": any mortgage or deed of trust, pledge, hypothecation,
----
assignment, deposit arrangement, security interest, lien, charge, easement,
encumbrance, preference, priority, or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with
respect to such property or assets (including without limitation, any
Capitalized Lease Obligation, conditional sale, or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
"Limited Partnership": collectively, PLC Command I, L.P. and PLC
-------------------
Command II, L.P., each a limited partnership organized and existing under
the laws of the Commonwealth of Pennsylvania.
"Loan Documents": this Agreement, each Draft, each Bankers'
--------------
Acceptance, any Notes, the Security Documents and any document, agreement
or certificate executed or delivered in connection herewith.
"Loan Parties": each Borrower, each Shareholder and each Subsidiary
------------
of the Company which is a party to a Loan Document.
"Loans": the collective reference to the US$ Loans and the C$ Loans.
-----
"Local Time": (a) in the case of matters relating to US$ Loans, New
----------
York City time, and (b) in the case of matters relating to C$ Loans,
Toronto time.
"Management Services Agreement": collectively, the Management and
-----------------------------
Administrative Services Agreement and the Software and Technology Services
Agreement, each dated as of October 27, 1995, between the Company and the
Canadian Borrower pursuant to which certain services are obligated to be
provided by the Company to the Canadian Borrower for which services the
Canadian Borrower is obligated to pay to the Company certain fees as
provided in such Agreements, as such Agreements may be amended,
supplemented or otherwise modified in accordance with subsection 8.11.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, operations, property, condition (financial or otherwise) or
prospects of the Company and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this or any of the other Loan Documents or
the rights or remedies of the Administrative Agents or the Lenders
hereunder or thereunder.
"Montreal Property": the real property located at 0000 Xxxxxxxxx,
-----------------
Xxxxx, Xxxxxx, Xxxxxx.
19
"Mortgages": the collective reference to all US Mortgages and all
---------
Canadian Mortgages.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Net Income": with respect to any Person for any period, the
----------
consolidated net income of such Person and its Subsidiaries for such period
determined in accordance with GAAP, excluding any foreign currency
translation gains or losses added or deducted, as applicable, in the
computation of Net Income.
"Net Proceeds":
------------
(a) in the case of any Disposition, the aggregate amount of all
cash payments received by the relevant Borrower and its Subsidiaries
directly or indirectly in connection with such Disposition; provided
--------
that (i) Net Proceeds shall be net of (x) the amount of any legal,
title and recording tax expenses, commissions and other fees and
expenses paid by such Borrower and its Subsidiaries in connection with
such Disposition and (y) any federal, state, provincial and local
income or other taxes estimated to be payable by such Borrower and its
Subsidiaries (or, to the extent such Borrower is a Subchapter S
corporation, by such Borrower and/or the Shareholders) as a result of
such Disposition (but only to the extent that such estimated taxes are
in fact paid to the relevant federal, state, provincial or local
Governmental Authority) and (ii) Net Proceeds shall be net of any
repayments by such Borrower or any of its Subsidiaries of Indebtedness
to the extent that (x) such Indebtedness is secured by a Lien on the
property that is subject to such Disposition (which Indebtedness shall
be valued at the lesser of the value of the property or the amount of
the Indebtedness) and (y) the transferee of (or holder of a Lien on)
such property requires that such Indebtedness be repaid as a condition
to the purchase of such property; and
(b) in the case of any Casualty Event, the aggregate amount of
proceeds of insurance (other than business interruption insurance),
condemnation awards and other compensation received by the relevant
Borrower and its Subsidiaries in respect of such Casualty Event net of
(i) reasonable expenses incurred by such Borrower and its Subsidiaries
in connection therewith, (ii) contractually required repayments on
Indebtedness (other than Indebtedness hereunder) to the extent secured
by a Lien on such property, (iii) any income and transfer taxes
payable by such Borrower or any of its Subsidiaries (or, to the extent
such Borrower is a Subchapter S corporation, by such Borrower and/or
its Shareholders) in respect of such Casualty Event and (iv) costs
resulting from the use of alternate facilities or warehouses by such
Borrower and/or any Subsidiaries as a result of such Casualty Event.
20
"Non-Excluded Taxes": as defined in subsection 4.11.
------------------
"Notes": the collective reference to the US$ Notes and C$ Notes.
-----
"Participant": as defined in subsection 11.6(b).
-----------
"Partnership Agreement": the PLC Command I, L.P. Limited Partnership
---------------------
Agreement dated as of October 23, 1995 between PLC Command I, Inc. as
general partner and the Company as limited partner, as amended,
supplemented or modified thereto, and the PLC Command II, L.P. Limited
Partnership Agreement dated as of October 23, 1995 between PLC Command II,
Inc. as general partner and the Company as general partner, as amended,
supplemented or modified thereto.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA.
"Permitted Acquisition": any acquisition by the Company or any Wholly
---------------------
Owned Subsidiary, on or after the Closing Date, whether through a purchase
of Capital Stock or assets or through a merger, consolidation or
amalgamation, of another Person or the assets constituting an entire
business or operating business unit of another Person, provided that:
--------
(a) the assets so acquired or, as the case may be, the assets of the
Person so acquired shall be in or related to the archives records
management business;
(b) no Default or Event of Default shall have occurred and be
continuing at the time thereof or would result therefrom;
(c) the Company shall have delivered to the US Administrative Agent,
as soon as available but in no event later than the earlier of (i) 10
days after the execution thereof and (ii) 3 Business Days prior the
closing of such acquisition, a copy of the executed purchase agreement
with respect thereto (without exhibits, except to the extent available
and requested by the US Administrative Agent) or the most recent draft
thereof;
(d) if the Purchase Price of such Permitted Acquisition would exceed
US$25,000,000 (or the equivalent thereof in other currencies), the
Required Lenders shall have consented in writing to such Permitted
Acquisition, provided, however, that no consent shall be required for
-------- -------
an acquisition consummated by a Borrower prior to the initial
borrowing hereunder;
(e) if, after giving effect to such acquisition, the aggregate amount
of the proceeds of Acquisition Loans made in any fiscal year of the
Company that are used to fund Permitted Acquisitions shall exceed
US$65,000,000, (i) the Required Lenders shall have consented in
writing to such Permitted
21
Acquisition and (ii) the Company shall, not less than five Business
Days prior to the closing of such Permitted Acquisition, have provided
updated financial projections for the then remaining life of this
Agreement and delivered a compliance certificate of a Responsible
Officer demonstrating pro forma compliance with subsections 8.8, 8.9
and 8.10 for the then remaining life of this Agreement; and
(f) such acquisition shall be effected in such manner so that the
acquired Capital Stock or assets are owned either by the Company or a
Wholly Owned Subsidiary and, if effected by merger, consolidation or
amalgamation, the Company or a Wholly Owned Subsidiary shall be the
continuing, surviving or resulting entity.
"Permitted Holders": collectively, Xxx X. Xxxxxx, Xx., his children
-----------------
or other lineal descendants (whether adoptive or biological), the spouses
of any of the foregoing and any probate estate of any such individual and
any trust, so long as one or more of the foregoing individuals is the
principal beneficiary of such trust, and any partnership, corporation or
other entity all of the partners, shareholders, members or owners of which
are any one or more of the foregoing.
"Permitted Intercompany Indebtedness": (a) loans and advances from
-----------------------------------
the Company to the Canadian Borrower, (b) loans and advances from the
Canadian Borrower to the Company, and (c) accrued but unpaid fees owing by
the Canadian Borrower to the Company pursuant to the Management Services
Agreement.
"Permitted Mortgage Debt": Indebtedness of the Company permitted by
-----------------------
subsection 8.4(c).
"Person": an individual, partnership, corporation, business trust,
------
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Xxxxxx Family Partnership": Xxxxxx Family Partnership Ltd., a
-------------------------
limited partnership created under the laws of the Commonwealth of
Pennsylvania.
"Xxxxxx Group": include one or more of each of Xxxxxxxxx X. Xxxxxxx,
------------
Xxxxxxxx Xxx, Xxxxxxx X. Xxx, Xx., J. Xxxxx Xxxxxx, Xxx X. Xxxxxx, Xx., Xxx
X. Xxxxxx, Xx., Xxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx
Xxx Xxxxxx, Xxxxxxxxx Xxx, Xxxxxx X. Xxx, Xxxxxxx Xxx, Xxxxxxx Xxx, III,
Xxxxxxx Xxx, Xxxxxxxxxxx Xxx, Xxxxxx Xxx, Xxxxxxx Xxx, Xxxxxxx Xxx, Xxxxx
Xxx, Xxxxxxx Xxx, Xxxxx Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxx X.
Xxxxx, Xx., Xxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxx, Xxxx Xxxxxx, Xxxxxxxxx X.
Xxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xx., Xxxxx Xxxxx, Xxxxxx X.
Xxxxxxx, and Xxxxxx X. Xxxxxxx.
"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
22
(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.
"Pledged Securities": as defined in the U.S. Global Guarantee and
------------------
Security Agreement.
"PPSA": the Personal Property Security Act (Ontario).
----
"Purchase Price": with respect to any Permitted Acquisition, an
--------------
amount equal to the sum of (i) the aggregate consideration, whether cash,
property (at the fair market value thereof determined in good faith by the
Board of Directors) or securities (including, without limitation, any
Indebtedness incurred pursuant to subsection 8.4(f) and the fair market
value of any Capital Stock of the Company issued to the seller in such
Permitted Acquisition), paid or delivered by the Company and its
Subsidiaries in connection with such Permitted Acquisition plus (ii) the
aggregate amount of liabilities of the acquired business (net of current
assets of the acquired business) that would be reflected on a balance sheet
(if such were to be prepared) of the Company and its Subsidiaries after
giving effect to such Permitted Acquisition.
"RCRA": shall mean the Resource Conservation and Recovery Act, as the
----
same may be amended from time to time, 42 U.S.C. (S) 6901 et seq.
-- ---
"Refunding Bankers' Acceptance": as defined in subsection 3.3(d).
-----------------------------
"Registers": as defined in subsection 11.6(d).
---------
"Regulation D, G, T, U or X": Regulation D, G, T, U or X of the Board
--------------------------
of Governors of the Federal Reserve System as in effect from time to time.
"Reinvestable Proceeds": as defined in subsection 4.1(b).
---------------------
"Release": disposing, discharging, injecting, spilling, pumping,
-------
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
----------------
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. (S)
2615.
"Required C$ Lenders": at any date, C$ Lenders the C$ Commitment
-------------------
Percentages of which aggregate at least 66-2/3% at such date.
23
"Required Lenders": at any date, Lenders the Commitment Percentages
----------------
of which aggregate at least 66-2/3% at such date.
"Required US$ Lenders": at any date, US$ Lenders the US Commitment
--------------------
Percentages of which aggregate at least 66-2/3% at such date.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": with respect to either Borrower, the chief
-------------------
executive officer, the president, the chief financial officer or the
treasurer of such Borrower.
"Restricted Payment": as defined in the Senior Subordinated Notes
------------------
Indenture, as in effect on the date hereof.
"Securities Act": the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder.
"Security Documents": the collective reference to the US Security
------------------
Documents and the Canadian Security Documents.
"Senior Subordinated Notes": the Senior Subordinated Notes due 2006
-------------------------
of the Company in an aggregate principal amount of US$200,000,000 issued
pursuant to the Senior Subordinated Notes Indenture, as the same may be
amended, sup-plemented or otherwise modified from time to time in
accordance with subsection 8.11.
"Senior Subordinated Notes Indenture": the Senior Subordinated Notes
-----------------------------------
Indenture, dated as of July 15, 1996, between the Company and United States
Trust Company of New York, as trustee, as amended, supplemented or
otherwise modified from time to time in accordance with subsection 8.11.
"Shareholders": as defined in subsection 5.17.
------------
"Shareholders' Agreements": collectively, all agreements entered into
------------------------
by the Company or its Subsidiaries, on the one hand, and any Affiliate of
the Company, on the other hand, governing the terms and relative rights of
its Capital Stock and any agreements entered into by Affiliates of the
Company with respect to the capital stock or other equity interest of the
Company or any of its Subsidiaries.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
24
"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.
"Tax Distributions": for so long as the Company is taxed as an S
-----------------
corporation or other pass-through entity for federal income tax purposes,
distributions to the holders of Capital Stock of the Company based on
estimates of the highest amount of federal, state and local income tax per
share of Capital Stock that any holder of Capital Stock of the Company
would be required to pay as a result of the Company's being treated as a
pass-through entity for income tax purposes.
"Tax Refund": with respect to either Borrower, any cash payment
----------
received by such Borrower as a rebate or refund of any federal, state,
provincial or local income taxes paid by such Borrower or of any taxes with
respect to the assets or properties of such Borrower.
"Tax Sharing Agreements": collectively, all tax sharing, tax
----------------------
allocation and other similar agreements entered into by the Company or any
of its Subsidiaries.
"Termination Date": June 30, 2002.
----------------
"Texas Avenue Property": that certain real property leased by the
---------------------
Company pursuant to a Ground Lease, dated as of August 1, 1922, between the
Company and S. Xxxxxxx Xxxxx, as Trustee, located at 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx.
"Total Net Debt": at any date of determination, without duplication,
--------------
the excess, if any, of all Indebtedness of the Company and its Subsidiaries
(excluding (a) all Indebtedness of the type described in clause (e) of the
definition thereof, except to the extent amounts are owing with respect
thereto upon the termination of the respective agreement constituting such
Indebtedness) and all Guarantee Obligations of the Company and its
Subsidiaries in respect of Indebtedness of third Persons over (b) any cash
balances in excess of US$500,000 then standing to the credit of the Company
and its Subsidiaries in their respective operating accounts and the
aggregate amount of Cash Equivalents then owned by the Company and its
Subsidiaries.
"Transferee": as defined in subsection 11.6(f).
----------
"Travelers Corporation Building Archives": the real property located
---------------------------------------
at 0000 Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxxx.
25
"Type": (a) as to any US$ Loan, its nature as an Base Rate Loan or a
----
Eurodollar Loan and (b) as to any C$ Loan, its nature as a C$ Prime Loan or
a Bankers' Acceptance.
"US Administrative Agent": Canadian Imperial Bank of Commerce, New
-----------------------
York Agency, together with its affiliates, as the arranger of the
Commitments and as the agent for the Lenders under this Agreement and the
other Loan Documents.
"US Administrative Office": the US Administrative Agent's office
------------------------
located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other
office in the United States as may be designated by the US Administrative
Agent by written notice to the Company and the Lenders.
"US Commitment": as to any US$ Lender, its obligation to make US$
-------------
Loans to the Company hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 1.1 as such Lender's "US Commitment", as such amount may
be changed from time to time as provided herein. The original aggregate
principal amount of the US Commitments is US$100,000,000.
"US Commitment Percentage": as to any US$ Lender at any time, the
------------------------
percentage of the aggregate US Commitments then constituted by such
Lender's US Commitment.
"US$ Equivalent": on any date of determination, with respect to any
--------------
amount in C$, the equivalent in US Dollars of such amount, determined by
the US Administrative Agent using the Canadian Exchange Rate then in
effect.
"US$ Exchange Rate": on a particular date, the rate at which US$
-----------------
may be exchanged into C$, determined by reference to the Bank of Canada
noon rate as published on the Reuters Screen page BOFC on the immediately
preceding Business Day. In the event that such rate does not appear on such
Reuters page, the "US$ Exchange Rate" shall be determined by reference to
-----------------
any other means (as selected by the relevant Administrative Agent) by which
such rate is quoted or published from time to time by the Bank of Canada
(in each case as in effect at or about 12:00 Noon, Toronto time, on the
Business Day immediately preceding the relevant date of determination);
provided, that if at the time of any such determination, for any reason,
--------
no such exchange rate is being quoted or published, the relevant
Administrative Agent may use any reasonable method as it deems applicable
to determine such rate, and such determination shall be conclusive absent
manifest error.
"US$ Lender": each Lender designated as a "US$ Lender" on Schedule
----------
1.1, as such Schedule may be modified from time to time as provided herein.
"US$ Loans": as defined in subsection 2.1(a).
---------
26
"US Dollars" and "US$": dollars in lawful currency of the United
---------- ---
States of America.
"US Global Guarantee and Security Agreement": the US Global Guarantee
------------------------------------------
and Security Agreement, substantially in the form of Exhibit D.
"US Lending Office": as to each US$ Lender, the office in the United
-----------------
States specified as the "US Lending Office" of such Lender on Schedule 1.1
or in an Assignment and Acceptance, as the case may be, or such other
office in the United States as may be designated by such Lender by written
notice to Company and the US Administrative Agent.
"US Mortgage": a mortgage to be executed and delivered by a domestic
-----------
Loan Party, with respect to a US Mortgaged Property, substantially in the
form of Exhibit F-2, as the same may be amended, supplemented or otherwise
modified from time to time.
"US Mortgaged Properties": all real property listed and identified as
-----------------------
such in Part B of Schedule 5.8 and designated as such.
"US$ Notes": as defined in subsection 4.1(f).
---------
"US Register": as defined in subsection 11.6(d).
-----------
"US Security Documents": the collective reference to the US Global
---------------------
Guarantee and Security Agreement, the US Mortgages and all other security
documents hereafter delivered to the US Administrative Agent granting a
Lien on any asset or assets of the Company or any Domestic Subsidiary to
secure the obligations and liabilities of the Company hereunder and under
any of the other Loan Documents or to secure any guarantee by any
subsidiary of any such obligations and liabilities.
"Wholly Owned Subsidiary": any Subsidiary, 99% or more of the
-----------------------
outstanding Capital Stock (other than directors' qualifying shares or
shares held pursuant to similar requirements of law in respect of Foreign
Subsidiaries) of which are owned, directly or indirectly, by the Company.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
27
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. THE US COMMITMENTS
2.1 The US Commitments. (a) Subject to the terms and conditions
------------------
hereof, each US$ Lender severally agrees to make revolving credit loans ("US$
---
Loans") to the Company from time to time during the Commitment Period in an
-----
aggregate principal amount at any one time outstanding not to exceed the amount
of such Lender's US Commitment. During the Commitment Period the Company may
use the US Commitments by borrowing, prepaying or repaying the US$ Loans of such
Lender in whole or in part, and reborrowing, all in accordance with the terms
and conditions hereof.
(b) The US$ Loans may from time to time be (i) Eurodollar Loans, (ii)
Base Rate Loans or (iii) a combination thereof, as determined by the Company and
notified to the US Administrative Agent in accordance with subsections 2.2 and
2.3, provided that no US$ Loan shall be made as a Eurodollar Loan after the day
--------
that is one month prior to the Termination Date.
2.2 Procedure for US$ Loan Borrowing. The Company may borrow under
--------------------------------
the US Commitments during the Commitment Period on any Business Day, provided
--------
that the Company shall give the US Administrative Agent irrevocable written or
telephonic notice (in the case of telephonic notice, to be promptly confirmed in
writing) (which notice must be received by the US Administrative Agent prior to
10:00 A.M., New York City time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested US$ Loans are to be
initially Eurodollar Loans, or (b) one Business Day prior to the requested
Borrowing Date, in the case of Base Rate Loans), specifying (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, Base Rate Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the amount of such
Type of Loan and the length of the initial Interest Period or Interest Periods
therefor. Each borrowing under the US Commitments shall be in an amount equal to
(x) in the case of Base Rate Loans, US$300,000 or a whole multiple of $100,000
in excess thereof (or, if the then Available Commitments are less than
US$300,000, such lesser amount) and (y) in the case of Eurodollar Loans,
US$1,000,000 or a whole multiple of US$100,000 in excess thereof (or, if the
then Available Commitments are less then US$1,000,000, such lesser amount). Upon
receipt of any such notice from the Company, the US Administrative Agent shall
promptly notify each US$ Lender thereof. Each US$ Lender will make the amount of
its pro rata share of each borrowing available to the US Administrative Agent
for the account of the Company at the US Administrative Office prior to 11:00
A.M., New York City time, on the
28
Borrowing Date requested by the Company in funds immediately available to the US
Administrative Agent. Such borrowing will then be made available to the Company
by the US Administrative Agent crediting the account of the Company on the books
of such office with the aggregate of the amounts made available to the US
Administrative Agent by the US$ Lenders and in like funds as received by the US
Administrative Agent.
2.3 Conversion and Continuation Options. (a) The Company may elect
-----------------------------------
from time to time to convert Eurodollar Loans to Base Rate Loans by giving the
US Administrative Agent at least one Business Day's prior irrevocable written or
telephonic notice (in the case of telephonic notice, to be promptly confirmed in
writing) of such election, provided that if any such conversion of Eurodollar
--------
Loans occurs on a day other than the last day of an Interest Period with respect
thereto the Company shall pay any breakage costs in connection with such
conversion. The Company may elect from time to time to convert Base Rate Loans
to Eurodollar Loans by giving the US Administrative Agent at least three
Business Days' prior irrevocable written or telephonic notice (in the case of
telephonic notice, to be promptly confirmed in writing) of such election. Any
such notice of conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the US Administrative Agent shall promptly notify each US$ Lender
thereof. All or any part of outstanding Eurodollar Loans and Base Rate Loans
may be converted as provided herein, provided that (i) no Base Rate Loan may be
--------
converted into a Eurodollar Loan when any Event of Default has occurred and is
continuing and the US Administrative Agent has or the Required US$ Lenders have
determined that such a conversion is not appropriate and (ii) no Base Rate Loan
may be converted into a Eurodollar Loan after the date that is one month prior
to the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Company giving,
at least three Business Days prior, irrevocable written or telephonic notice (in
the case of telephonic notice, to be promptly confirmed in writing) to the US
Administrative Agent, in accordance with the applicable provisions of the term
"Interest Period" set forth in subsection 1.1, of the length of the next
Interest Period to be applicable to such Loans, provided that no Eurodollar Loan
--------
may be continued as such (i) when any Event of Default has occurred and is
continuing and the US Administrative Agent has or the Required US$ Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one month prior to the Termination Date in accordance with the terms
described above and provided, further, that if the Company shall fail to give
-------- -------
such notice or if such continuation is not permitted such Loans shall be
automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period. Upon receipt of any notice given by the Company pursuant to
this subsection 2.3(b), the US Administrative Agent shall promptly notify each
US$ Lender thereof.
2.4 Minimum Amounts and Maximum Number of Eurodollar Tranches.
---------------------------------------------------------
Notwithstanding anything to the contrary in this Agreement, all borrowings,
payments, prepayments, conversions and continuations of US$ Loans hereunder and
all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections
29
so that, after giving effect thereto, the aggregate principal amount of the
Loans comprising each Eurodollar Tranche shall be equal to US$1,000,000 or a
whole multiple of US$100,000 in excess thereof. More than one borrowing may
occur on the same date, but in no event shall there be more than five Eurodollar
Tranches outstanding at any time.
SECTION 3. THE CANADIAN COMMITMENTS
3.1 The Canadian Commitments. Subject to the terms and conditions
------------------------
hereof, each C$ Lender severally agrees to make revolving credit loans (which
shall be C$ Prime Loans) to, and to accept and, at the option of the Canadian
Borrower, purchase Bankers' Acceptances from, the Canadian Borrower from time to
time during the Commitment Period in an aggregate principal amount at any one
time outstanding not to exceed such Lender's Canadian Commitment. During the
Commitment Period, the Canadian Borrower may use the Canadian Commitments by
borrowing, prepaying or repaying the C$ Prime Loans or Bankers' Acceptances, in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
3.2 Procedure for C$ Loan Borrowing. The Canadian Borrower may
-------------------------------
borrow C$ Prime Loans during the Commitment Period on any Business Day, provided
--------
that the Canadian Borrower shall give the Canadian Administrative Agent
irrevocable written or telephonic notice (in the case of telephonic notice, to
be promptly confirmed in writing) (which notice must be received by the Canadian
Administrative Agent prior to 10:00 A.M., Toronto time, one Business Day prior
to the requested Borrowing Date), specifying (a) the amount to be borrowed and
(b) the requested Borrowing Date. Each borrowing of C$ Prime Loans shall be in
an amount equal to C$300,000 or a whole multiple of C$100,000 in excess thereof.
Upon receipt of any such irrevocable notice from the Canadian Borrower, the
Canadian Administrative Agent shall promptly notify each C$ Lender thereof.
Each C$ Lender will make the amount of its pro rata share of each such borrowing
available to the Canadian Administrative Agent for the account of the Canadian
Borrower at the Canadian Administrative Office prior to 11:00 A.M., Toronto
time, on the Borrowing Date requested by the Canadian Borrower in funds
immediately available to the Canadian Administrative Agent. Such borrowing will
then be made available, on such Borrowing Date to the Canadian Borrower by the
Canadian Administrative Agent crediting the account of the Canadian Borrower on
the books of the Canadian Administrative Office with the aggregate of the
amounts made available to the Canadian Administrative Agent by the C$ Lenders
and in like funds as received by the Canadian Administrative Agent.
3.3 Bankers' Acceptances. (a) The Canadian Borrower may issue
--------------------
Bankers' Acceptances denominated in C$, for acceptance and, at the Canadian
Borrower's option, purchase by the C$ Lenders, each in accordance with the
provisions of this subsection 3.3.
30
(b) Procedures.
----------
(1) Notice. The Canadian Borrower shall notify the Canadian
------
Administrative Agent by irrevocable written or telephonic notice (in the
case of telephonic notice, to be promptly confirmed in writing) by 10:00
A.M., Toronto time, one Business Day prior to the Borrowing Date in respect
of any borrowing by way of Bankers' Acceptances.
(2) Minimum Borrowing Amount. Each borrowing by way of Bankers'
------------------------
Acceptances shall be in a minimum aggregate face amount of C$1,000,000 or a
whole multiple of C$100,000 in excess thereof.
(3) Face Amounts. The face amount of each Bankers' Acceptance shall
------------
be C$100,000 or any whole multiple thereof.
(4) Term. Bankers' Acceptances shall be issued and shall mature on a
----
Business Day. Each Bankers' Acceptance shall have a term of 30, 60, 90 or
180 days (or such shorter or longer term as shall be agreed to by all of
the C$ Lenders), shall mature on or before the Termination Date and shall
be in form and substance reasonably satisfactory to each C$ Lender.
(5) Bankers' Acceptances in Blank. To facilitate the acceptance of
-----------------------------
Bankers' Acceptances under this Agreement, the Canadian Borrower shall,
from time to time as required, provide to the Canadian Administrative Agent
Drafts duly executed and endorsed in blank by the Canadian Borrower in
quantities sufficient for each C$ Lender to fulfill its obligations
hereunder. Each C$ Lender is hereby authorized to accept such Drafts
endorsed in blank in such face amounts as may be determined by such C$
Lender in accordance with the terms of this Agreement, provided that the
--------
aggregate amount thereof is less than or equal to the aggregate amount of
Bankers' Acceptances required to be accepted by such C$ Lender. No C$
Lender shall be responsible or liable for its failure to accept a Bankers'
Acceptance if the cause of such failure is, in whole or in part, due to the
failure of the Canadian Borrower to provide duly executed and endorsed
Drafts to the Canadian Administrative Agent on a timely basis, nor shall
any C$ Lender be liable for any damage, loss or other claim arising by
reason of any loss or improper use of any such instrument except loss or
improper use arising by reason of the gross negligence or willful
misconduct of such C$ Lender, its officers, employees, agents or
representatives. The Canadian Administrative Agent and each C$ Lender
shall exercise such care in the custody and safekeeping of Drafts as it
would exercise in the custody and safekeeping of similar property owned by
it. Each C$ Lender will, upon the request of the Canadian Borrower,
promptly advise the Canadian Borrower of the number and designation, if
any, of Drafts then held by it for the Canadian Borrower. Each C$ Lender
shall maintain a record with respect to Drafts and Bankers' Acceptances (i)
received by it from the Canadian Administrative Agent in blank hereunder,
(ii) voided by it for any reason, (iii) accepted by it hereunder, (iv)
purchased by it hereunder and (v) cancelled at their respective maturities.
Each C$ Lender further
31
agrees to retain such records in the manner and for the statutory periods
provided in the various Canadian provincial or federal statutes and
regulations which apply to such C$ Lender.
(6) Execution of Bankers' Acceptances. Drafts of the Canadian
---------------------------------
Borrower to be accepted as Bankers' Acceptances hereunder shall be duly
executed on behalf of the Canadian Borrower. Notwithstanding that any
person whose signature appears on any Bankers' Acceptance as a signatory
for the Canadian Borrower may no longer be an authorized signatory for the
Canadian Borrower at the date of issuance of a Bankers' Acceptance, such
signature shall nevertheless be valid and sufficient for all purposes as if
such authority had remained in force at the time of such issuance, and any
such Bankers' Acceptance so signed shall be binding on the Canadian
Borrower.
(7) Issuance of Bankers' Acceptances. Promptly following receipt of
--------------------------------
a notice of borrowing by way of Bankers' Acceptances, the Canadian
Administrative Agent shall so advise the C$ Lenders and shall advise each
C$ Lender of the face amount of each Draft to be accepted by it and the
term thereof. The aggregate face amount of Drafts to be accepted by a C$
Lender shall be determined by the Canadian Administrative Agent on a pro
rata basis by reference to the respective Canadian Commitments of the C$
Lenders, except that, if the face amount of a Draft which would otherwise
be accepted by a C$ Lender, would not be C$100,000 or a whole multiple
thereof, such face amount shall be increased or reduced by the Canadian
Administrative Agent in its sole and unfettered discretion to the nearest
whole multiple of C$100,000.
(8) Acceptance of Bankers' Acceptances. Each Draft to be accepted by
----------------------------------
a C$ Lender shall be accepted at such C$ Lender's Canadian Lending Office.
(9) Purchase of Bankers' Acceptances. Each C$ Lender shall be
--------------------------------
required to purchase (subject to the commercial availability of a resale
market in the case of Bankers' Acceptances with a term of approximately 30,
60, 90 or 180 days, as the case may be) from the Canadian Borrower on such
Borrowing Date, at the Applicable BA Discount Rate, the Bankers'
Acceptances accepted by it on such Borrowing Date and to provide to the
Canadian Administrative Agent the BA Discount Proceeds thereof not later
than 12:00 Noon, Toronto time, on such Borrowing Date for the account of
the Canadian Borrower. The Acceptance Fee payable by the Canadian Borrower
to such C$ Lender under subsection 3.3(e) in respect of each Bankers'
Acceptance accepted and purchased by such C$ Lender from the Canadian
Borrower shall be set off against the BA Discount Proceeds payable by such
C$ Lender under this subsection 3.3(b)(9). Not later than 2:00 P.M.,
Toronto time, on such Borrowing Date the Canadian Administrative Agent
shall make such BA Discount Proceeds available to the Canadian Borrower by
crediting the account of the Canadian Borrower on the books of the Canadian
Administrative Office with the aggregate of the amounts made available to
the
32
Canadian Administrative Agent by the C$ Lenders and in like funds as
received by the Canadian Administrative Agent.
(10) Sale of Bankers' Acceptances. Each C$ Lender may at any time
----------------------------
and from time to time hold, sell, rediscount or otherwise dispose of any or
all Bankers' Acceptances accepted and purchased by it.
(11) Waiver of Presentment and Other Conditions. To the extent
------------------------------------------
permitted by applicable law, the Canadian Borrower waives presentment for
payment and any other defense to payment of any amounts due to a C$ Lender
in respect of a Bankers' Acceptance accepted by it pursuant to this
Agreement which might exist solely by reason of such Bankers' Acceptance
being held, at the maturity thereof, by such C$ Lender in its own right,
and the Canadian Borrower agrees not to claim any days of grace if such C$
Lender as holder sues the Canadian Borrower on the Bankers' Acceptances for
payment of the amount payable by the Canadian Borrower thereunder.
(c) The Canadian Borrower shall reimburse the C$ Lender for, and
there shall become due and payable at 10:00 a.m., Toronto time, on the contract
maturity date for each Bankers' Acceptance, an amount in Canadian Dollars in
same day funds equal to the face amount of such Bankers' Acceptance. The
Canadian Borrower shall make each such reimbursement payment (i) by causing any
proceeds of a Refunding Bankers' Acceptance issued in accordance with subsection
3.3(d) or conversion of such Bankers' Acceptance in accordance with subsection
3.4 to be applied in reduction of such reimbursement payment; and (ii) by
depositing the amount of such reimbursement payment (or any portion thereof
remaining unpaid after application of any proceeds referred to in clause (i))
with the Canadian Administrative Office in accordance with subsection 4.8. The
Canadian Borrower's payment in accordance with this Section shall satisfy its
obligations under any Bankers' Acceptance to which it relates, and the C$ Lender
which has accepted such Bankers' Acceptance shall thereafter be solely
responsible for the payment of such Bankers' Acceptance.
(d) The Canadian Borrower shall give irrevocable written or telephonic
notice (in the case of telephonic notice, to be promptly confirmed in writing)
(or such other method of notification as may be agreed upon between the Canadian
Administrative Agent and the Canadian Borrower) to the Canadian Administrative
Agent at or before 10:00 A.M., Toronto time, one Business Day prior to the
maturity date of each Bankers' Acceptance of the Canadian Borrower's intention
to issue a Bankers' Acceptance on such maturity date (a "Refunding Bankers'
-----------------
Acceptance") to provide for the payment of such maturing Bankers' Acceptance (it
----------
being understood that payments by the Canadian Borrower and fundings by the C$
Lenders in respect of each maturing Bankers' Acceptance and the related
Refunding Bankers' Acceptance shall be made on a net basis reflecting the
difference between the face amount of such maturing Bankers' Acceptance and the
BA Discount Proceeds (net of the applicable Acceptance Fee) of such Refunding
Bankers' Acceptance). If the Canadian Borrower fails to give such notice or does
not have sufficient funds on deposit in the amount of reimbursement payment in
accordance with subsection 3.3(c)(ii), the Canadian
33
Borrower shall be deemed to have requested that such maturing Bankers'
Acceptances be repaid with the proceeds of C$ Prime Loans (without any
requirement to give notice with respect thereto), commencing on the maturity
date of such maturing Bankers' Acceptances.
(e) An Acceptance Fee shall be payable by the Canadian Borrower to
each C$ Lender in advance (in the manner specified in subsection 3.3(b)(9)) upon
the issuance of a Bankers' Acceptance to be accepted by such C$ Lender
calculated at the rate per annum equal to the Applicable Margin, such Acceptance
Fee to be calculated on the face amount of such Bankers' Acceptance and to be
computed on the basis of the number of days in the term of such Bankers'
Acceptance.
(f) Upon the occurrence of any Event of Default which is continuing,
and in addition to any other rights or remedies of any C$ Lender and the
Canadian Administrative Agent hereunder, any C$ Lender or the Canadian
Administrative Agent (or such alternate arrangement as may be agreed upon by the
Canadian Borrower and such C$ Lender or the Canadian Administrative Agent, as
applicable) shall be entitled to deposit and retain in an account to be
maintained by the Canadian Administrative Agent (bearing interest at the
Canadian Administrative Agent's rates as may be applicable in respect of other
deposits of similar amounts for similar terms), for the ratable benefit of the
C$ Lenders, amounts which are received by such C$ Lender or the Canadian
Administrative Agent from the Canadian Borrower hereunder or as proceeds of the
exercise of any rights or remedies of any C$ Lender or the Canadian
Administrative Agent hereunder against the Canadian Borrower, to the extent such
amounts may be required to satisfy any contingent or unmatured obligations or
liabilities of the Canadian Borrower to the C$ Lenders or the Canadian
Administrative Agent, or any of them hereunder.
3.4 Conversion Option. Subject to the provisions of this Agreement,
-----------------
the Canadian Borrower may, prior to the Termination Date, effective on any
Business Day, convert, in whole or in part, C$ Prime Loans into Bankers'
Acceptances or vice versa upon giving to the Canadian Administrative Agent prior
irrevocable written or telephonic notice (in the case of telephonic notice, to
be promptly confirmed in writing) within the notice period and in the form which
would be required to be given to the Canadian Administrative Agent in respect of
the category of C$ Loan into which the outstanding C$ Loan is to be converted in
accordance with the provisions of subsection 3.2 or 3.3, as applicable, provided
--------
that:
(a) no C$ Prime Loan may be converted into a Bankers'
Acceptance when any Event of Default has occurred and is continuing;
(b) each conversion to Bankers' Acceptances shall be for an aggregate
amount of C$1,000,000 (and whole multiples of C$100,000 in excess
thereof), and each conversion to C$ Prime Loans shall be in a minimum
aggregate amount of C$100,000; and
34
(c) Bankers' Acceptances may be converted only on the maturity date of
such Bankers' Acceptances and, provided that, if less than all
--------
Bankers' Acceptances are converted, then after such conversion not
less than C$1,000,000 (and whole multiples of C$100,000 in excess
thereof) shall remain as Bankers' Acceptances.
3.5 Circumstances Making Bankers' Acceptances Unavailable. (a) If
-----------------------------------------------------
the Canadian Administrative Agent determines in good faith, which determination
shall be final, conclusive and binding upon the Canadian Borrower, and notifies
the Canadian Borrower that, by reason of circumstances affecting the money
market, there is no market for Bankers' Acceptances, then:
(i) the right of the Canadian Borrower to request a borrowing by way
of Bankers' Acceptance shall be suspended until the Canadian Administrative
Agent determines that the circumstances causing such suspension no longer
exist and the Canadian Administrative Agent so notifies the Canadian
Borrower; and
(ii) any notice relating to a borrowing by way of Bankers' Acceptance
which is outstanding at such time shall be deemed to be a notice requesting
a borrowing by way of C$ Prime Loan (all as if it were a notice given
pursuant to subsection 3.2).
(b) The Canadian Administrative Agent shall promptly notify the
Canadian Borrower and the C$ Lenders of the suspension of the Canadian
Borrower's right to request a borrowing by way of Bankers' Acceptance and of the
termination of such suspension.
SECTION 4. GENERAL PROVISIONS
4.1 Repayment of Loans; Evidence of Debt. (a) The Company hereby
------------------------------------
unconditionally promises to pay to the US Administrative Agent for the account
of each US$ Lender the then unpaid principal amount of each US$ Loan of such US$
Lender on the Termination Date (or such earlier date on which the US$ Loans
become due and payable pursuant to Section 9). The Company hereby further
agrees to pay interest on the unpaid principal amount of the US$ Loans from time
to time outstanding from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in subsection 4.5.
(b) The Canadian Borrower hereby unconditionally promises to pay to
the Canadian Administrative Agent for the account of each C$ Lender the then
unpaid principal amount of each C$ Loan of such C$ Lender on the Termination
Date (or such earlier date on which the C$ Loans become due and payable pursuant
to Section 9). The Canadian Borrower hereby further agrees to pay interest on
the unpaid principal amount of the C$ Loans from time to time outstanding from
the date hereof until payment in full thereof at the rates per annum, and on the
dates, set forth in subsection 4.5.
35
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the relevant Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(d) Each Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a subaccount therein for each relevant Lender, in which
shall be recorded (i) the amount of each relevant Loan made hereunder, whether
such Loan is, as applicable, a US$ Loan, a C$ Prime Loan or a Bankers'
Acceptance, the Type of each US$ Loan made and each Interest Period applicable
to any Eurodollar Loan, (ii) the amount of any principal or interest due and
payable or to become due and payable from the relevant Borrower to each relevant
Lender hereunder and (iii) both the amount of any sum received by such
Administrative Agent hereunder from the relevant Borrower and each relevant
Lender's share thereof.
(e) The entries made in the Registers and the accounts of each Lender
maintained pursuant to subsection 4.1(c) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the relevant Borrower therein recorded; provided, however, that
-------- -------
the failure of any Lender or either Administrative Agent to maintain such
Register or any such account, or any error therein, shall not in any manner
affect the obligation of each Borrower to repay (with applicable interest and
all other amounts owing with respect thereto) the Loans made to such Borrower by
such Lender in accordance with the terms of this Agreement.
(f) The Company agrees that, upon the request to the US
Administrative Agent by any US$ Lender, the Company will execute and deliver to
such Lender a promissory note of the Company evidencing the US$ Loans of such
Lender, substantially in the form of Exhibit A-1 with appropriate insertions as
to date and principal amount (a "US$ Note").
--------
(g) The Canadian Borrower agrees that, upon the request to the
Canadian Administrative Agent by any C$ Lender, the Canadian Borrower will
execute and deliver to such Lender a promissory note of the Canadian Borrower
evidencing the C$ Prime Loans of such Lender, substantially in the form of
Exhibit A-2 with appropriate insertions as to date and principal amount (a "C$
--
Note").
----
4.2 Commitment Fee. (a) The Company agrees to pay to the US
--------------
Administrative Agent for the account of each US$ Lender a commitment fee for the
period from and including the first day of the Commitment Period to the
Termination Date, computed at the rate of 3/8ths of 1% per annum on the average
daily amount of the Available US Commitment of such US$ Lender during the period
for which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Termination Date or such earlier
date as the US Commitments shall terminate as provided herein, commencing on the
first of such dates to occur after the date hereof.
36
(b) The Canadian Borrower agrees to pay to the Canadian
Administrative Agent for the account of each C$ Lender a commitment fee for the
period from and including the first day of the Commitment Period to the
Termination Date, computed at the rate of 3/8ths of 1% per annum on the average
daily amount of the Available Canadian Commitment of such C$ Lender during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination Date or such
earlier date as the Canadian Commitments shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof.
(c) The Borrowers agree to pay to the US Administrative Agent and the
Canadian Administrative Agent, for their own accounts, the fees in the amounts
and on the dates previously agreed to in the Fee Letter dated August, 1996 among
the Borrowers, the US Administrative Agent and the Canadian Administrative
Agent.
4.3 Termination or Reduction of Commitments. (a) The aggregate
---------------------------------------
amount of the US Commitments shall be automatically reduced to zero on the
Termination Date. The aggregate amount of the US Commitments shall also reduce
on the last day of March, June, September and December of each year, commencing
September 30, 1999, each of which reductions on any such date shall be in an
amount equal to the amount set forth below opposite such date:
Date Amount
---- ------
September 30, 1999 $ 6,250,000
December 31, 1999 6,250,000
March 31, 2000 6,250,000
June 30, 2000 6,250,000
September 30, 2000 8,750,000
December 31, 2000 8,750,000
March 31, 2001 8,750,000
June 30, 2001 8,750,000
September 30, 2001 10,000,000
December 31, 2001 10,000,000
March 31, 2002 10,000,000
June 30, 2002 10,000,000
(b) The aggregate amount of the Canadian Commitments shall be
automatically reduced to zero on the Termination Date. The aggregate amount of
the Canadian Commitments shall also reduce on the last day of March, June,
September and December of each year, commencing September 30, 1999, each of
which reductions on any such date shall be in an amount equal to the amount set
forth below opposite such date:
37
Date Amount
---- ------
September 30, 1999 C$2,187,500
December 31, 1999 2,187,500
March 31, 2000 2,187,500
June 30, 2000 2,187,500
September 30, 2000 3,062,500
December 31, 2000 3,062,500
March 31, 2001 3,062,500
June 30, 2001 3,062,500
September 30, 2001 3,500,000
December 31, 2001 3,500,000
March 31, 2002 3,500,000
June 30, 2002 3,500,000
(c) The Company shall have the right, upon not less than two Business
Days' notice to the applicable Administrative Agent, without premium or penalty,
to terminate the Commitments or, from time to time, to reduce the amount of the
US Commitments (so long as, after giving effect thereto and to any
contemporaneous prepayment of the Loans, the then outstanding US$ Loans of each
US$ Lender shall be no greater than such Lender's US Commitment) or reduce the
amount of the Canadian Commitments (so long as, after giving effect thereto and
to any contemporaneous prepayment of the C$ Loans, the then outstanding C$ Loans
of each C$ Lender shall be no greater than such Lender's Canadian Commitment).
Upon receipt of such notice the applicable Administrative Agent shall promptly
notify each relevant Lender thereof. Any such reduction shall be in an amount
of at least US$500,000 and, if greater, in integral multiples of US$100,000 (in
the case of the US Commitments) or C$500,000 and, if greater, in integral
multiples of C$100,000 (in the case of the Canadian Commitments) and shall
reduce permanently the amount of the affected Commitments then in effect. Any
termination of the Commitments shall be accompanied by prepayment in full of the
Loans, together with accrued interest thereon to the date of such prepayment.
4.4 Optional and Mandatory Prepayments. (a) Each Borrower may at
----------------------------------
any time and from time to time prepay the relevant Loans, in whole or in part,
without premium or penalty, upon at least three Business Days' irrevocable
notice to the relevant Administrative Agent (in the case of Eurodollar Loans),
or one Business Day's irrevocable notice to the relevant Administrative Agent
(otherwise), specifying the date and amount of prepayment, and the Type of Loan
to be prepaid, and, if of a combination thereof, the amount allocable to each.
Upon receipt of any such notice the relevant Administrative Agent shall promptly
notify each relevant Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
together with, in the case of Eurodollar Loans, any interest accrued thereon,
and in the case of all loans, any amounts payable pursuant to subsection 4.12.
Partial prepayments shall be in an aggregate principal amount of US$1,000,000 or
C$1,000,000, as the case may be, or a whole multiple of US$100,000 or C$100,000,
as the case may be, in excess thereof.
38
Notwithstanding anything to the contrary above, C$ Loans consisting of Bankers'
Acceptances may not be prepaid pursuant to this subsection.
(b) Without limiting the obligation of the Company to obtain the
consent of the Required Lenders pursuant to subsection 8.2 to any Disposition
not otherwise permitted hereunder, in the event that the Net Proceeds of any
Disposition by either Borrower or any of its Subsidiaries (the "Current
-------
Disposition"), and of all prior Dispositions of the Borrowers and their
-----------
Subsidiaries as to which a prepayment has not yet been made under this
subsection 4.4(b), but excluding any Reinvestable Proceeds (as defined below),
shall exceed US$2,500,000 then, no later than five Business Days after the
occurrence of the Current Disposition, the relevant Borrower will deliver to the
US Administrative Agent a statement, certified by a Responsible Officer of such
Borrower, in form and detail reasonably satisfactory to the US Administrative
Agent, of the amount of the Net Proceeds of the Current Disposition and of all
such prior Dispositions and shall prepay its Loans, and its Commitments shall be
subject to automatic reduction (and, if required, such Borrower shall provide
cash collateral in connection with such reduction, which cash collateral shall
be invested in Cash Equivalents), in an aggregate amount equal to the excess of
100% of the Net Proceeds of the Current Disposition and such prior Dispositions
(but excluding the amount of any Reinvestable Proceeds) over US$2,500,000 (or
the C$ Equivalent thereof, as the case may be), such prepayment and reduction to
be effected in each case in the manner and order specified in subsection 4.4(g);
provided that, at the option of such Borrower and so long as no Default or Event
--------
of Default shall have occurred and be continuing or would be caused thereby and
subject to the consent of the Required Lenders in connection with any
Disposition not otherwise permitted hereunder, such Net Proceeds shall not be
required to be applied on such date so long a such Borrower delivers a
certificate of a Responsible Officer to the US Administrative Agent prior to
such date stating that such Borrower intends to use all or a portion of the Net
Proceeds of any Disposition (the "Reinvestable Proceeds" of such Disposition) to
---------------------
purchase assets to be used by such Borrower or such Subsidiary in its business
(the "Qualified Assets") within 270 days after receipt of such proceeds and
----------------
setting forth an estimate of the Reinvestable Proceeds to be so expended. After
such election to use the Reinvestable Proceeds, on the date which is 270 days
after the relevant Disposition, such Borrower shall (I) deliver a certificate of
a Responsible Officer to the US Administrative Agent certifying as to the amount
and use of such Reinvestable Proceeds actually used to purchase Qualified Assets
and (II) deliver to the US Administrative Agent, for application in accordance
with this subsection 4.4(b), an amount equal to the remaining unused
Reinvestable Proceeds.
(c) On the date of the receipt thereof by either Borrower or any of
its Subsidiaries, such Borrower shall prepay its Loans (but the Commitments
shall not be subject to any reduction) in an aggregate amount equal to (i) 100%
of the proceeds (net of underwriting discounts and commissions and other costs
associated therewith) from any sale or issuance of equity of such Borrower or
any of its Subsidiaries other than to either Borrower or any of its Subsidiaries
and (ii) 100% of the proceeds (net of underwriting discounts and commissions and
other costs associated therewith) from any incurrence of any Indebtedness for
borrowed money by such Borrower or any of its Subsidiaries (other than
Indebtedness permitted by subsection 8.4), such prepayment to be effected in
each case
39
in the manner and order specified in subsection 4.4(g). The provisions of this
paragraph shall not limit the obligation of the Company to obtain the consent of
the Required Lenders to any action referred to in this paragraph that is not
otherwise permitted hereunder.
(d) In the event that the Net Proceeds of any Casualty Event of
either Borrower or any of its Subsidiaries (the "Current Casualty Event"), and
----------------------
of all prior Casualty Events of the Borrowers and their Subsidiaries as to which
a prepayment has not yet been made under this subsection 4.4(d), but excluding
any Casualty Reinvestable Proceeds (as defined below), shall exceed
US$2,500,000, then, no later than five Business Days after the occurrence of the
Current Casualty Event, the relevant Borrower will deliver to the US
Administrative Agent a statement, certified by a Responsible Officer of such
Borrower, in form and detail reasonably satisfactory to the relevant
Administrative Agent, of the amount of the Net Proceeds of the Current Casualty
Event and of all such prior Casualty Events and shall prepay its Loans, and its
Commitments shall be subject to automatic reduction (and, if required, such
Borrower shall provide cash collateral in connection with such reduction, which
cash collateral shall be invested in Cash Equivalents), in an aggregate amount
equal to the excess of 100% of the Net Proceeds of the Current Casualty Event
and such prior Casualty Events (but excluding the amount of any Casualty
Reinvestable Proceeds) over US$2,500,000 (or the C$ Equivalent thereof, as the
case may be), such prepayment and reduction to be effected in each case in the
manner and order specified in subsection 4.4(g); provided, that such Net
--------
Proceeds shall not be required to be applied on such date (other than if such
Net Proceeds are required to be applied pursuant to the terms of any Mortgage or
lease) so long as (i) such Borrower delivers a certificate of a Responsible
Officer to the US Administrative Agent prior to such date stating that such
Borrower intends to use or cause the appropriate Subsidiary to use such Net
Proceeds (the "Casualty Reinvestable Proceeds" of such Casualty Event) to repair
------------------------------
or replace the property affected by such Casualty Event (the "Affected
--------
Property") within 270 days after receipt of such Net Proceeds and setting forth
--------
an estimate of the Casualty Reinvestable Proceeds to be so expended and (ii) no
Event of Default shall have occurred and be continuing or would be caused
thereby. After such election to reinvest, on the date which is 270 days after
the relevant Casualty Event, such Borrower shall (I) deliver a certificate of a
Responsible Officer to the relevant Administrative Agent certifying as to the
amount and use of such Casualty Reinvestable Proceeds actually used to purchase
or replace the Affected Property and (II) deliver to the relevant Administrative
Agent, for application in accordance with this subsection 4.4(d), an amount
equal to the remaining unused Casualty Reinvestable Proceeds.
(e) On the date of the receipt thereof by either Borrower or any of
its Subsidiaries, such Borrower shall prepay its Loans (but its Commitments
shall not be subject to any reduction) in an aggregate amount equal to 100% of
the proceeds of any Tax Refund (net of any marginal increase in income taxes
payable as a result of the receipt by such Borrower and/or any of its
Subsidiaries of such Tax Refund or so long as at the time of such receipt of
proceeds such Borrower is a Subchapter S corporation, the Shareholders), such
prepayment to be effected in each case in the manner and order specified in
subsection 4.4(g).
40
(f) On the date of the receipt thereof by either Borrower or any of
its Subsidiaries, such Borrower shall prepay its Loans (but its Commitments
shall not be subject to any reduction) in an aggregate amount equal to 100% of
the Net Proceeds of any Disposition of property acquired as part of a Permitted
Acquisition but not used or useful to the business of such Borrower or such
Subsidiary so long as such Disposition is made within 270 days of the date of
the consummation of such Permitted Acquisition, such prepayment to be effected
in each case in the manner and order specified in subsection 4.4(g).
(g) Prepayments of the Loans pursuant to subsections 4.4(b), (c),
(d), (e) and (f) and permanent reductions of Commitments pursuant to subsections
4.4(b) and (d) shall be applied in the following manner:
(i) to the extent such prepayment is required to be made by the
Company, such prepayment shall be applied to reduce (ratably among the US
Lenders) such of the then outstanding US$ Loans as the Company shall
determine in its sole discretion, and any reduction of the Commitments
required pursuant thereto shall be applied ratably to reduce the US
Commitments (which reduction of US Commitments shall reduce the remaining
scheduled commitment reductions thereof in inverse order of maturity); and
(ii) to the extent that such prepayment is required to be made by the
Canadian Borrower, such prepayment shall be applied to reduce (ratably
among the Canadian Lenders) such of the then outstanding C$ Loans (or, in
the case of Bankers' Acceptances, cash collateralization of such Bankers'
Acceptances on terms satisfactory to the Canadian Administrative Agent,
which cash collateral shall be invested in Cash Equivalents) as the
Canadian Borrower shall determine in its sole discretion, and any reduction
of the Canadian Commitments required pursuant thereto shall be applied
ratably to reduce the Canadian Commitments (which reduction of Canadian
Commitments shall reduce the remaining scheduled commitment reductions
thereof in inverse order of maturity).
(h) Notwithstanding anything to the contrary contained above, all
prepayments of each Loan shall be made in the currency in which such Loans were
made, and all cash collateralization of Bankers Acceptances shall be made in
Canadian Dollars. For purposes of determining the amounts required to be
applied, conversions of one currency to another are assumed to be made by using
the C$ Equivalent or US$ Equivalent, as the case may be, of amounts received in
the other currency. However, it shall remain the responsibility of the
respective Borrower to convert amounts received in one currency into the other
to the extent needed to repay, or cash collateralize, Loans or Bankers
Acceptances maintained in the other such currency.
4.5 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
--------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin.
41
(b) Each Base Rate Loan shall bear interest for each day on the unpaid
principal amount thereof, at a rate per annum equal to the Base Rate determined
for such day plus the Applicable Margin.
(c) Each C$ Prime Loan shall bear interest for each day on the unpaid
principal amount thereof, at a rate per annum equal to the C$ Prime Rate
determined for such day plus the Applicable Margin.
(d) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any acceptance fee or any commitment fee or (iv)
any other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of principal, the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this subsection plus 2% or (y) in the case of any such overdue interest,
acceptance fee or commitment fee or other amount, the rate described in
paragraph (b) of this subsection (in the case of amounts payable in US Dollars)
or paragraph (c) of this subsection (in the case of amounts payable in Canadian
Dollars) plus 2%, in each case from the date of such non-payment until such
overdue principal, interest, acceptance fee or commitment fee or other amount is
paid in full (after as well as before judgment).
(e) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (d) of this
--------
subsection shall be payable from time to time on demand. Interest in respect of
US$ Loans (and all other amounts denominated in US$) shall be payable in US$,
and interest in respect of C$ Loans (and all other amounts denominated in C$)
shall be payable in C$.
(f) (i) If any provision of this Agreement would obligate any Loan
Party to make any payment of interest or other amount payable to any C$ Lender
in an amount or calculated at a rate which would be prohibited by law or would
result in a receipt by such C$ Lender of interest at a criminal rate (as such
terms are construed under the Criminal Code (Canada)), then notwithstanding such
-------------
provision, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by law or so result in a receipt by such C$
Lender of interest at a criminal rate, such adjustment to be effected, to the
extent necessary, as follows:
(x) first, by reducing the amount or rates of interest required to
be paid under this subsection 4.5; and
(y) thereafter, by reducing any fees, commissions, premiums and
other amounts which would constitute interest for purposes of
Section 347 of the Criminal Code (Canada).
-------------
(ii) If, notwithstanding the provisions of clause (i) of this
subsection 4.5.(f), and after giving effect to all adjustments contemplated
thereby, any C$ Lender shall have
42
received an amount in excess of the maximum permitted by such clause, then the
applicable Loan Party shall be entitled, by notice in writing to such C$ Lender,
to obtain reimbursement from such C$ Lender of an amount equal to such excess,
and, pending such reimbursement, such amount shall be deemed to be an amount
payable by such C$ Lender to such Loan Party.
(iii) Any amount or rate of interest referred to in this subsection
4.5(f) shall be determined in accordance with generally accepted actuarial
practices and principles as an effective annual rate of interest over the term
of any C$ Loan on the assumption that any charges, fees or expenses that fall
within the meaning of "interest" (as defined in the Criminal Code (Canada))
-------------
shall, if they relate to a specific period of time, be prorated over that period
of time and otherwise be prorated over the period from the Closing Date to the
Termination Date and, in the event of dispute, a certificate of a Fellow of the
Canadian Institute of Actuaries appointed by the Canadian Administrative Agent
shall be conclusive for the purposes of such determination absent manifest
error.
4.6 Computation of Interest and Fees. (a) Interest calculated on
--------------------------------
the basis of the Eurodollar Rate and Federal Funds Rate shall be calculated on
the basis of a 360-day year for the actual days elapsed; Acceptance fees and
commitment fees and interest calculated on the basis of the CDOR Rate shall be
calculated on the basis of a 365-day year for the actual days elapsed; and
interest calculated on any other basis shall be calculated on the basis of a
365- or 366- day year, as the case may be, for the actual days elapsed. The
relevant Administrative Agent shall as soon as practicable notify the relevant
Borrower and the relevant Lenders of each determination of Eurodollar Rates or
the Applicable BA Discount Rate. Any change in the interest rate on a Loan
resulting from a change in the Base Rate, the C$ Prime Rate or the Applicable
Margin shall become effective as of the opening of business on the day on which
such change becomes effective. The relevant Administrative Agent shall as soon
as practicable notify the relevant Lenders and the relevant Borrower of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the relevant
Administrative Agent pursuant to any provision of this Agreement shall be prima
facie evidence of the accuracy thereof on the Borrowers and the Lenders in the
absence of manifest error. When applicable, each determination by CIBC of a
rate to be notified to the relevant Administrative Agent pursuant to the
definition of "CDOR Rate" shall be prima facie evidence of the accuracy thereof.
The relevant Administrative Agent shall, at the request of the relevant
Borrower, deliver to such Borrower a statement showing any quotations and the
computations used by the relevant Administrative Agent in determining any CDOR
Rate.
(c) For the purposes of the Interest Act (Canada), in any case in
------------
which an interest rate is stated in this Agreement to be calculated on the basis
of a year of 360 days or 365 days, as the case may be, the yearly rate of
interest to which such interest rate is equivalent is equal to such interest
rate multiplied by the number of days in the year in which the relevant interest
payment accrues and divided by 360 or 365, respectively. In addition, the
principles of deemed investment of interest do not apply to any interest
43
calculations under this Agreement and the rates of interest stipulated in this
Agreement are intended to be nominal rates and not effective rates or yields.
4.7 Inability to Determine Eurodollar Rate. If prior to the first
--------------------------------------
day of any Interest Period:
(a) the US Administrative Agent shall have determined (which
determination shall be prima facie evidence of the accuracy thereof) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the US Administrative Agent shall have received notice from the
Required US$ Lenders that the Eurodollar Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect
the cost to such US$ Lenders (as conclusively certified by such US$
Lenders) of making or maintaining their affected Loans during such Interest
Period,
the US Administrative Agent shall give telecopy or telephonic notice (to be
confirmed in writing) thereof to the Company and the US$ Lenders as soon as
practicable thereafter. If such notice is given (x) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as
Base Rate Loans, (y) any Base Rate Loans that were to have been converted on the
first day of such Interest Period to Eurodollar Loans shall be converted to or
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans shall be
converted, on the first day of such Interest Period, to Base Rate Loans. Until
such notice has been withdrawn by the US Administrative Agent, no further
Eurodollar Loans shall be made or continued as such, nor shall the Company have
the right to convert Loans to Eurodollar Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing by each
-------------------------------
Borrower from the Lenders hereunder, each payment by each Borrower on account of
any commitment fee or acceptance fee hereunder and any reduction of the US
Commitments or the Canadian Commitments, of the Lenders shall be made pro rata
according to the respective US Commitment Percentages, in the case of the US$
Lenders, and the respective C$ Commitment Percentages, in the case of the C$
Lenders. Each payment (excluding prepayments pursuant to subsection 4.4(g)) by
each Borrower on account of principal of and interest on the Loans shall be made
pro rata according to the respective outstanding principal amounts of the
relevant Loans then held by the relevant Lenders. All payments (including
prepayments) to be made by each Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made prior to 11:00 A.M., Local Time, on the due date
thereof to the relevant Administrative Agent, for the account of the Lenders, at
the relevant Administrative Office, in US Dollars or C$, as the case may be, and
in immediately available funds. The relevant Administrative Agent shall
distribute such payments to the relevant Lenders promptly upon receipt in like
funds as received, but the relevant Borrower shall have satisfied its payment
obligation hereunder upon payment to the relevant Administrative Agent,
regardless of whether such Administrative Agent distributes such payments as
required hereunder. If any
44
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day, and, with
respect to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the relevant Administrative Agent shall have received
notice from a Lender prior to 11:00 A.M., Local Time, on any Borrowing Date that
such Lender will not make available to such Administrative Agent such Lender's
share of the borrowing requested to be made on such Borrowing Date, such
Administrative Agent may assume that such Lender has made its share of such
borrowing available to such Administrative Agent on such Borrowing Date, and
such Administrative Agent may, in reliance upon such assumption, make available
to the relevant Borrower on such Borrowing Date a corresponding amount. If such
Administrative Agent does, in such circumstances, make available to such
Borrower such amount, such Lender shall within three Business Days following
such Borrowing Date make its share of such borrowing available to such
Administrative Agent, together with interest thereon for each day from and
including such Borrowing Date that its share of such borrowing was not made
available, to but excluding the date such Lender makes its share of such
borrowing available to such Administrative Agent, at the Federal Funds Rate (in
the case of US$ Loans) or at the then effective CDOR Rate (in the case of C$
Loans). If such amount is so made available, such payment to such Administrative
Agent shall constitute such Lender's Loan on such Borrowing Date for all
purposes of this Agreement. A certificate of such Administrative Agent submitted
to any Lender with respect to any amounts owing under this subsection shall be
prima facie evidence of such amounts. If such amount is not so made available to
such Administrative Agent by such Lender within three Business Days of such
Borrowing Date, such Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate Loans
hereunder, on demand, from the relevant Lender. Nothing contained in this
subsection 4.8(b) shall relieve any Lender which has failed to make available
its share of any borrowing hereunder from its obligation to do so in accordance
with the terms hereof or prejudice any rights which the relevant Borrower may
have against any Lender as a result of any default by such Lender to make loans.
(c) The failure of any Lender to make the Loan to be made by it on
any Borrowing Date shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on such Borrowing Date, but no Lender shall be
responsible for the failure of any other Lender to make the Loan to be made by
such other Lender on such Borrowing Date.
4.9 Illegality. Notwithstanding any other provision herein, if the
----------
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be cancelled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within
45
such earlier period as required by law. If any such conversion of a Eurodollar
Loan occurs on a day which is not the last day of the then current Interest
Period with respect thereto, the Company shall pay to such Lender such amounts,
if any, as may be required pursuant to subsection 4.12.
4.10 Requirements of Law. (a) If the adoption of or any change in
-------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to, or cause the withdrawal or
termination of a previously granted exemption with respect to, any tax of
any kind whatsoever, or change the basis of taxation of, or increase any
existing tax on, payments of principal, interest, fees or other amounts
payable by either Borrower to such Lender under this Agreement (except for
taxes on the overall receipts or overall net income or capital of such
Lender, and any related surtaxes, or taxes for which such Lender is being
fully compensated under subsection 4.11);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the relevant Borrower
shall promptly pay such Lender, upon written demand therefor, such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable; provided, that such Borrower shall not be required to
--------
pay any Lender any such additional amount if such additional amount arises (x)
in the case of US$ Loans made to the Company, as a consequence of such Lender's
failure to meet the requirements of subsection 4.11(b) or (y) in the case of C$
Loans made to the Canadian Borrower, as a result of such Lender's failure to be
a Person resident in Canada for the purposes of the Income Tax Act (Canada).
--------------
(b) If the adoption of or any change in any Requirement of Law
regarding capital adequacy or in the interpretation or application thereof by
any Governmental Authority or compliance by any Lender or any corporation
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of
return on such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or compliance
(taking into
46
consideration such Lender's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time, the Borrowers shall promptly pay to such Lender, upon written
demand therefor, such additional amount or amounts as will compensate such
Lender for such reduced rate of return. In determining such additional amounts,
each Lender will act reasonably and in good faith and will use averaging and
attribution methods which are reasonable and which will, to the extent the
reduced rate of return relates to such Lender's loans or commitments in general
and are not specifically attributable to Loans or Commitments hereunder, be
calculated with respect to all loans or commitments similar to the Loans or
Commitments made by such Lender hereunder whether or not the loan documentation
for such other loans or commitments permits the Lender to charge the respective
borrower on a basis similar to that provided in this subsection 4.10.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the relevant Borrower
(with a copy to the relevant Administrative Agent) of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender to such Borrower
(with a copy to the relevant Administrative Agent) showing in reasonable detail
the basis for the calculation thereof, shall be prima facie evidence of such
additional amounts payable. The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
4.11 Taxes. (a) All payments made by any Loan Party under this
-----
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding gross or net income or gross receipts taxes,
ad valorem taxes, personal property and/or sales taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on either Administrative Agent or
any Lender as a result of a present or former connection between either
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from such
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
------------------
from any amounts payable to either Administrative Agent or any Lender hereunder
or under any Note, the amounts so payable to such Administrative Agent or such
Lender shall be increased to the extent necessary to yield to such
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in the
amounts specified in this Agreement, provided, however, that no Loan Party shall
-------- -------
be required to increase any such amounts payable to either Administrative Agent,
any Lender or any holder of Bankers' Acceptance if such increased amount arises
as a result of (i) in the case of amounts payable by the Company with respect to
US$ Loans, such Lender's failure to comply with any applicable
47
requirements of subsection 4.11(b), including a material failure of any
statement or certification given pursuant to subsection 4.11(b) to be true for
any reason other than a change in United States federal income tax law or an
amendment, modification or revocation of an applicable double tax treaty or (ii)
in the case of amounts payable by any Canadian Borrower with respect to C$
Loans, the failure of such C$ Lender, the Canadian Administrative Agent or any
holder of Bankers' Acceptance to be a Person resident in Canada for the purposes
of the Income Tax Act (Canada). Each Loan Party shall also indemnify each
--------------
Administrative Agent and each Lender on an after-tax basis for any additional
taxes on net income which such Administrative Agent or such Lender, as the case
may be, may be obligated to pay as a result of the receipt of additional amounts
under this subsection 4.11(a). Whenever any Non-Excluded Taxes are payable by
any Loan Party, as promptly as possible thereafter but in any event within 45
days after the date of payment such Loan Party shall send to the relevant
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
such Loan Party showing payment thereof. If any Loan Party fails to pay any Non-
Excluded Taxes when due to the appropriate taxing authority or fails to remit to
the relevant Administrative Agent the required receipts or other required
documentary evidence, such Loan Party shall indemnify such Administrative Agent
and the Lenders for any incremental taxes, interest or penalties that may become
payable by such Administrative Agent or any Lender as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(i) deliver to the Company and the US Administrative Agent (A)
two original signed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be, and (B) two
accurate and complete original signed copies of Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may be;
(ii) deliver to the Company and the US Administrative Agent two
further copies of any such form or certification on or before the date that
any such form or certification expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recent form
previously delivered by it to the Company; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the Company
or the US Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so
48
advises the Company and the US Administrative Agent. Such Lender shall certify
(i) in the case of a Form 1001 or 4224, that it is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes and (ii) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax. Each Person
that shall become a Lender or a Participant pursuant to subsection 11.6 shall,
upon the effectiveness of the related transfer, be required to provide all of
the forms and statements required pursuant to this subsection, provided that in
the case of a Participant such Participant shall furnish all such required forms
and statements to the Lender from which the related participation shall have
been purchased.
4.12 Indemnity. Each Borrower agrees to indemnify each Lender and to
---------
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by such Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after such Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by such Borrower in making any prepayment of Eurodollar
Loans after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement, (c) the making of a prepayment of Eurodollar Loans
on a day which is not the last day of an Interest Period with respect thereto or
(d) repayment of any Bankers' Acceptance prior to its maturity date. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
4.13 Change of Lending Office. Each Lender agrees that if it makes
------------------------
any demand for payment under subsection 4.10 or 4.11(a), or if any adoption or
change of the type described in subsection 4.9 shall occur with respect to it,
it will use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions and so long as such efforts would not be
disadvantageous to it, as determined in its sole discretion) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Company to make payments under subsection 4.10 or
4.11(a), or would eliminate or reduce the effect of any adoption or change
described in subsection 4.9.
49
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agents and the Lenders to enter into this
Agreement and to make the Loans, the Company hereby represents and warrants to
the Administrative Agents and each Lender that:
5.1 Financial Condition. The consolidated balance sheet of the
-------------------
Company and its consolidated Subsidiaries as at December 31, 1995 and the
related consolidated statements of income and retained earnings and changes in
cash flows for the fiscal year ended on such date, reported on by Xxxxxx
Xxxxxxxx LLP, copies of which have heretofore been furnished to each Lender, are
complete and correct and present fairly in accordance with GAAP the consolidated
financial position of the Company and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the fiscal year then ended. The unaudited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at March 31, 1996, and
the related unaudited consolidated statements of income and retained earnings
and changes in cash flows for the three-month period ended on such date,
certified by a Responsible Officer, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly in
accordance with GAAP the consolidated financial position of the Company and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the three-month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein). Neither the Company nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto. Except as set forth on Schedule 5.1, during the period
from December 31, 1995 to and including the date hereof there has been no sale,
transfer or other disposition by the Company or any of its consolidated
Subsidiaries of any material part of its business or property and no purchase or
other acquisition of any business or property (including any Capital Stock of
any other Person) material in relation to the consolidated financial condition
of the Company and its consolidated Subsidiaries at December 31, 1995.
5.2 No Change. Except as set forth on Schedule 5.2, (a) Since
---------
December 31, 1995 there has been no development or event which has had or could
reasonably be expected to have a Material Adverse Effect, and (b) during the
period from December 31, 1995 to and including the date hereof no dividends or
other distributions have been declared, paid or made upon the Capital Stock of
the Company nor has any of the Capital Stock of the Company been redeemed,
retired, purchased or otherwise acquired for value by the Company or any of its
Subsidiaries.
50
5.3 Corporate Existence; Compliance with Law. Each of the Company
----------------------------------------
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization or formation,
(b) has the power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or an extraprovincial corporation and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification (each of which
jurisdictions are listed on Schedule 5.3), except where the failure to be so
qualified could not have a Material Adverse Effect and (d) is in compliance with
all Requirements of Law except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each of
-------------------------------------------------------
the Company and its Subsidiaries has the corporate or partnership power and
authority, as applicable, and the legal right, to execute, deliver and perform
the Loan Documents to which it is a party and, in the case of each Borrower, to
borrow hereunder, and each of the Company and its Subsidiaries has taken all
necessary corporate or partnership action, as applicable, to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents to which
the Company or any of its Subsidiaries is a party. This Agreement has been, and
each other Loan Document to which it is a party will be, duly executed and
delivered on behalf of each Loan Party. This Agreement constitutes, and each
other Loan Document when executed and delivered will constitute, a legal, valid
and binding obligation of each Loan Party which is a party thereto enforceable
against such Loan Party in accordance with its terms, except to the extent that
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
5.5 No Legal Bar. The execution, delivery and performance of the
------------
Loan Documents to which each Loan Party is a party, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of such Loan Party or of any of its Subsidiaries and will
not result in, or require, the creation or imposition of any Lien (except
pursuant to the Loan Documents to which it is a party) on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
5.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrowers, threatened by or against either Borrower or
any of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any of the Loan
51
Documents or any of the transactions contemplated hereby or thereby, or (b)
which could reasonably be expected to have a Material Adverse Effect.
5.7 No Default. Neither Borrower nor any of its Subsidiaries is in
----------
default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect.
No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. All real property owned or leased
----------------------------
by either Borrower or any of its Subsidiaries and the nature of the interest
therein, is correctly set forth on Schedule 5.8. The Company and its
Subsidiaries have good and valid title to all real property owned by them and
good and merchantable title to all other properties owned by them, in each case,
including all property reflected in the balance sheets referred to in subsection
5.1 (except as sold or otherwise disposed of as permitted by this Agreement),
free and clear of all Liens, other than (i) as referred to in such balance
sheets or in the notes thereto or (ii) as otherwise permitted by subsection 8.1.
5.9 Intellectual Property. The Company and each of its Subsidiaries
---------------------
owns, or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "Intellectual
------------
Property"). Neither the Company nor any of its Subsidiaries has any knowledge
--------
that any claim has been asserted and is pending by any Person challenging or
questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Company know of
any valid basis for any such claim. The use of such Intellectual Property by
the Company and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
5.10 No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation of either Borrower or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
5.11 Taxes. Each of the Company and its Subsidiaries has filed or
-----
caused to be filed all tax returns which, to the knowledge of the Company, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than as set forth on Schedule 5.11 and any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its Subsidiaries, as the
case may be); no tax Lien has been filed, and, to the knowledge of the Company,
no claim is being asserted, with respect to any such tax, fee or other charge.
52
5.12 Margin Regulations. No part of the proceeds of any Loans will
------------------
be used to purchase or carry any Margin Stock (as defined in Regulation G, T, U
or X) or to extend credit for the purpose of purchasing or carrying any Margin
Stock. Neither the making of any Loan, the creation of any Bankers Acceptance
or the purchase of any Draft nor the use of the proceeds thereof will violate or
be inconsistent with the provisions of Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
5.13 ERISA. (a) Neither a Reportable Event nor an "accumulated
-----
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred,
and no Lien in favor of the PBGC or a Plan has arisen, during such five-year
period. The present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither the Company nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Company nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Company or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans in which it
participates as of the valuation date most closely preceding the date on which
this representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
(b) Each Canadian Pension Plan is in substantial compliance with all
applicable pension benefits and tax laws; no Canadian Pension Plan has any
unfunded liabilities (either on a "going concern" or on a "winding up" basis and
determined in accordance with all applicable laws and using assumptions and
methods that are appropriate in the circumstances and in accordance with
generally accepted actuarial principles and practices in Canada), all
contributions (including any special payments to amortize any unfunded
liabilities) required to be made in accordance with all applicable laws and the
terms of each Canadian Pension Plan have been made; no event has occurred and no
condition exists with respect to any Canadian Pension Plan that has resulted or
could result in any Canadian Pension Plan being ordered or required to be wound
up in whole or in part pursuant to any applicable pension benefits laws or
having its registration revoked or refused for the purposes of any applicable
pension benefits or tax laws or being placed under the administration of any
relevant pension benefits regulatory authority or being required to pay any
taxes or penalties under any applicable pension benefits or tax laws, other than
events or conditions that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; no order has been made
and no notice has been given pursuant to any applicable pension benefits or tax
laws in respect of any Canadian Pension Plan requiring (or proposing to require)
any Person to take or to refrain from taking any action in respect thereof or
that there has (or there are circumstances that indicate that there has) been a
contravention of any such applicable laws, other than in respect of matters
that, individually or in the aggregate, could not reasonably be expected to
53
have a Material Adverse Effect; no event has occurred and no condition exists
which has resulted or could result in the Company or any Subsidiary of the
Company being required to pay, repay or refund any amount (other than
contributions required to be made or expenses required to be paid in the
ordinary course) to or on account of any Canadian Pension Plan or a current or
former member thereof, other than events or conditions that, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect; and no event has occurred and no condition exists that has resulted or
could result in a payment being made out of a guarantee fund established under
any applicable pension benefits laws in respect of a Canadian Pension Plan.
(c) With respect to any pension, retirement or other deferred
compensation plan maintained by the Canadian Borrower or any of its Subsidiaries
which is not a Canadian Pension Plan, all required contributions have been made,
and there are no unfunded liabilities in respect of such plans (either on a
"going concern" or on a "winding up'" basis and determined in accordance with
all applicable laws and using assumptions and methods that are appropriate in
the circumstances and in accordance with generally accepted actuarial principles
and practices in Canada).
5.14 Investment Company Act; Other Regulations. No Loan Party is an
-----------------------------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of the Board of Governors of the Federal Reserve
System) which limits its ability to incur Indebtedness.
5.15 Environmental Matters. (a) Except as set forth on Schedule
---------------------
5.15: The Company and its Subsidiaries are in compliance in all material
respects with, and on the Closing Date and on the date of each Loan will be in
compliance in all material respects with, all applicable Environmental Laws; to
the best knowledge of the Company, there are no past, pending or threatened
Environmental Claims against the Company or any of its Subsidiaries or any real
property owned or operated by such Persons; there are no facts, circumstances,
conditions or occurrences on any real property owned or operated at any time by
the Company or any of its Subsidiaries that could reasonably be expected (i) to
form the basis of an Environmental Claim against the Company or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect, or (ii) in the case of real property owned or operated by the Company or
any of its Subsidiaries, to cause such real property to be subject to any
material restrictions on the ownership, occupancy, use or transferability of
such real property under any Environmental Law.
(b) The Company and its Subsidiaries have not at any time generated,
used, treated or stored Hazardous Materials on, or transported Hazardous
Materials to or from, any real property owned or operated at any time by the
Company or any of its Subsidiaries, except for (i) Hazardous Materials used in
the ordinary course of such Person's business and (ii) petroleum products
contained in underground storage tanks at the Canadian Borrower's facility in
Xxxxx Xxxxxxx, Xxxxxx, in each case, in compliance in all material respects with
all Environmental Laws. The Company and its Subsidiaries have not at any
54
time Released or disposed of Hazardous Materials on or from any real property
owned or operated at any time by the Company or any of its Subsidiaries, except
in compliance in all material respects with Environmental Laws.
(c) Except as set forth on Schedule 5.15, there are no underground
storage tanks located on any real property owned or operated by the Company or
any of its Subsidiaries.
(d) Except for asbestos and asbestos-containing materials located at
the Texas Avenue Property and also in Xxxxxx St., Montreal, Ville Xxxxx,
Montreal, St. Xxxxxx, St. Xxxxxxx, Xxxxxxxxx Road, Brampton, Wolfdale Road,
Mississauga, Coronation Drive, Scarborough, 27th St. N.E., Calgary, all of which
are in compliance in all material respects with all Environmental Laws, to the
best of the Company's knowledge there is no friable asbestos in any form present
or suspected to be present at any real property owned or operated by the Company
or any of its Subsidiaries.
5.16 Regulation H. No Mortgage encumbers improved real property
------------
which is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of
1968.
5.17 Capitalization. On the Closing Date, the authorized Capital
--------------
Stock of the Company will consist of (i) 1,000,000 shares of Class A Common
Stock, US$.01 par value per share ("Class A Common Stock"), of which 900 shares
--------------------
will be outstanding and (ii) 1,000,000 shares of Class B Common Stock, US$.01
per value per share ("Class B Common Stock"), of which 9,000 shares will be
--------------------
outstanding. On the Closing Date, the authorized Capital Stock of the Canadian
Borrower will consist of 10,000 common shares, without nominal or par value, of
which 1,000 will be issued and outstanding. All of such outstanding shares will
have been duly and validly issued, will be fully paid and nonassessable and will
be free of preemptive rights. On the Closing Date, Schedule 5.17 will contain a
true and complete list of each shareholder of the Company (each, a
"Shareholder"), together with the number of shares of Class A Common Stock and
-----------
Class B Common Stock held by such Shareholder.
5.18 Subsidiaries. Schedule 5.18 correctly sets forth, as of the
------------
Closing Date, the percentage ownership (direct and indirect) of the Company in
each class of Capital Stock or partnership interest, as the case may be, of each
of its Subsidiaries and also identifies the direct owner thereof.
5.19 Restrictions on or Relating to Subsidiaries. There does not
-------------------------------------------
exist any encumbrance or restriction on the ability of (i) any Subsidiary of the
Company to pay dividends or make any other distributions on its Capital Stock or
any other interest or participation in its profits owned by the Company or any
Subsidiary of the Company, or to pay any Indebtedness owed to the Company or a
Subsidiary of the Company, (ii) any Subsidiary of the Company to make loans or
advances to the Company or any of its Subsidiaries or (iii) the Company or any
Subsidiary of the Company to transfer any of its
55
properties or assets to the Company or any Subsidiary of the Company, except, in
each case, for such encumbrances or restrictions existing under or by reason of
(w) applicable law, (x) this Agreement or the other Loan Documents, (y)
customary provisions restricting subletting or assignment of any lease governing
a leasehold interest or leases of equipment of the Company or any Subsidiary of
the Company and (z) the Senior Subordinated Notes and Senior Subordinated Notes
Indenture.
5.20 Subchapter S Status. The Company has validly elected to be
-------------------
treated as a Subchapter S corporation within the meaning of Section 1361 of the
Code. The Company has at all times since March 1, 1990 qualified to be treated
as a Subchapter S corporation within the meaning of Section 1361 of the Code.
5.21 Leases. With respect to any lease or rental agreement regarding
------
any real property to which the Company or any of its Subsidiaries is a party,
(i) such lease or rental agreement is in full force and effect, (ii) the Company
and its Subsidiaries have complied in all material respects with all of the
terms of such lease or rental agreement, (iii) there exists no event of default
or to the best of the Company's knowledge, any event, act or condition which
with notice or lapse of time, or both, would constitute an event of default
thereunder by the Company or any of its Subsidiaries, or to the best knowledge
of the Company, the landlord thereunder and (iv) the Company or its Subsidiaries
as the case may be, is in possession of the premises demised under all such
leases and rental agreements and is conducting business on such premises.
5.22 Related Agreements. The Company has delivered to the US
------------------
Administrative Agent true and correct copies of:
(a) any agreement evidencing or relating to material Indebtedness
of the Company or any of its Subsidiaries (excluding the Loans) which shall
remain outstanding on and after the Closing Date, including the Senior
Subordinated Notes Indenture;
(b) any Tax Sharing Agreements;
(c) the Management Services Agreement; and
(d) the Affiliate Contracts.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The agreement of each Lender to
---------------------------
make Loans hereunder shall not become effective until the following conditions
precedent shall have been satisfied:
(a) Loan Documents. The US Administrative Agent shall have received
--------------
(i) this Agreement, executed and delivered by a duly authorized officer of
each
56
Borrower, with a counterpart for each Lender, (ii) any Notes requested by the
Lenders, each executed and delivered by a duly authorized officer of the
relevant Borrower, and each of the other Loan Documents, each executed and
delivered by a duly authorized officer of the party thereto, with a counterpart
or a conformed copy for each Lender, (iii) the US Global Guarantee and Security
Agreement, executed and delivered by a duly authorized officer of each party
thereto, with a counterpart or a conformed copy for each Lender and (iv) the
Canadian Security Agreement, executed and delivered by a duly authorized officer
of each party thereto, with a counterpart or a conformed copy for each Lender.
(b) Proceeds of Issuance of Senior Subordinated Notes. The Company
-------------------------------------------------
shall have received at least US$200,000,000 in gross cash proceeds from the
issuance of the Senior Subordinated Notes.
(c) Termination of the Existing Credit Agreement. (i) All loans and
--------------------------------------------
other amounts outstanding under, and in respect of, the Existing Credit
Agreement shall have been repaid in full, (ii) the commitments under the
Existing Credit Agreement shall have been permanently terminated and all
obligations under the Existing Credit Agreement and the security interests
relating thereto shall have been discharged or transferred to the
Administrative Agents and the Lenders and (iii) the US Administrative Agent
shall have received satisfactory evidence of such repayment, termination
and discharge or transfer.
(d) Existing Indebtedness. Except as set forth below, the US
---------------------
Administrative Agent shall have received, with a copy for each Lender,
evidence, in form and substance reasonably satisfactory to the US
Administrative Agent that the Company and its Subsidiaries shall have
repaid all Indebtedness so that, on the Closing Date, the Company and its
Subsidiaries shall have no Indebtedness or preferred stock outstanding
except for (i) any Loans to be made on the Closing Date, (ii) the Senior
Subordinated Notes and (iii) Indebtedness set forth on Schedule 6.1.
57
(e) Corporate Proceedings of the Loan Parties. The US Administrative
-----------------------------------------
Agent shall have received, with a counterpart for each Lender, a copy of
the resolutions, in form and substance reasonably satisfactory to the US
Administrative Agent, of the Boards of Directors of each of the Loan
Parties authorizing (i) the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party, (ii) the
borrowings contemplated hereunder and (iii) the granting by it of the Liens
created pursuant to its respective Security Documents, certified by its
respective Secretary or an Assistant Secretary as of the Closing Date, each
of which certificates shall be in form and substance reasonably
satisfactory to the US Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(f) Incumbency Certificates of the Loan Parties. The US
-------------------------------------------
Administrative Agent shall have received, with a counterpart for each
Lender, a certificate of each of the Loan Parties, dated the Closing Date,
as to the incumbency and signature of the officers of such Loan Party
executing any Loan Document, each of which certificates shall be reasonably
satisfactory in form and substance to the US Administrative Agent, executed
by the President or any Vice President and the Secretary or any Assistant
Secretary of such Loan Party.
(g) Corporate Documents. The US Administrative Agent shall have
-------------------
received, with a counterpart for each Lender, true and complete copies of
(i) the certificate of incorporation and by-laws of each of the Loan
Parties, certified as of the Closing Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of such Loan Party and
(ii) the limited partnership agreement of each Limited Partnership,
certified as of the Closing Date as complete and correct copies thereof by
a duly authorized officer of the general partner of such Limited
Partnership.
(h) Fees. The US Administrative Agent shall have received the fees
----
to be received on the Closing Date referred to in subsection 4.2(c).
6.2 Conditions to Initial Loans. The agreement of each Lender to
---------------------------
make the initial Loan requested to be made by it is subject to the satisfaction,
immediately prior to or concurrently with the making of such Loan on the initial
Borrowing Date, of the following conditions precedent:
(a) Canadian Security Documents. The US Administrative Agent shall
---------------------------
have received, with a counterpart for each Lender, the Demand Debenture and
Debenture Pledge Agreement for the province of Nova Scotia and the Canadian
Hypothec, each executed and delivered by a duly authorized officer of the
Canadian Borrower.
(b) Leverage Ratio Certificate. The US Administrative Agent shall
--------------------------
have received, with a counterpart for each Lender, a certificate of the
Company, dated the
58
initial Borrowing Date, stating that after giving effect to all
transactions and borrowings on the initial Borrowing Date, the Leverage
Ratio on the initial Borrowing Date is not greater than 5.75 to 1.00.
(c) Borrowing Certificate. The relevant Administrative Agent shall
---------------------
have received, with a counterpart for each Lender, a certificate of the
relevant Borrower, dated the initial Borrowing Date, substantially in the
form of Exhibit C-1 and Exhibit C-2, respectively, with appropriate
insertions and attachments, satisfactory in form and substance to the
relevant Administrative Agent, executed by the President or any Vice
President and the Secretary or any Assistant Secretary of the relevant
Borrower.
(d) Legal Opinions. The US Administrative Agent shall have received,
--------------
with a counterpart for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Cozen and X'Xxxxxx,
counsel to the Borrowers and the Shareholders, substantially in the
form of Exhibit H-1; and
(ii) the executed legal opinion of Xxxxxx, Xxxx & Xxxx,
Canadian counsel to the Canadian Borrower, substantially in the form
of Exhibit H-2.
(e) Pledged Stock, Stock Powers, Etc. The US Administrative Agent
--------------------------------
shall have received the certificates representing the shares pledged
pursuant to the US Global Guarantee and Security Agreement together with an
undated stock power for each such stock certificate, executed in blank by a
duly authorized officer of the pledgor thereof (which undated stock powers,
in the case of certificates representing shares pledged pursuant to the
Canadian Security Agreement, shall be required only if such Agreement so
requires). In addition, each spouse of any Shareholder executing the US
Global Guarantee and Security Agreement and who resides in a state which
has community property laws, shall have confirmed such spouse's waiver of
all special rights to the Pledged Securities pledged by such Shareholder.
(f) Actions to Perfect Liens. The US Administrative Agent shall have
------------------------
received evidence in form and substance reasonably satisfactory to it that
all filings, recordings, registrations and other actions, including,
without limitation, the filing of duly executed financing statements on
Form UCC-1, PPSA Form 1-C or the appropriate equivalent thereof, necessary
or, in the opinion of the US Administrative Agent, desirable to perfect the
Liens created by the Security Documents shall have been completed or that
all such financing statements and other documents with respect to such
filings, recordings, registrations and other actions shall have been
delivered to the applicable Administrative Agent.
59
(g) Lien Searches. The US Administrative Agent shall have received
-------------
(i) the results of a recent search by a Person satisfactory to the US
Administrative Agent of the Uniform Commercial Code, judgment and tax lien
filings and (ii) PPSA search results certified by the Ontario Registrar of
Personal Property or equivalent certificate in any other province or
territory with PPSA-type legislation which may have been filed, with
respect to personal property of either Borrower and its Subsidiaries, and
the results of such searches in clauses (i) and (ii) above shall be
reasonably satisfactory to the US Administrative Agent.
(h) Insurance. The US Administrative Agent shall have received
---------
evidence in form and substance reasonably satisfactory to it that all of
the requirements of subsection 5.3 of the US Global Guarantee and Security
Agreement and subsection 6.1 of the Canadian Security Agreement shall have
been satisfied.
6.3 Additional Conditions for Acquisition Loans. The agreement of
-------------------------------------------
each Lender to make any Acquisition Loan requested to be made by it on any
Borrowing Date is subject to the satisfaction of the following conditions
precedent:
(a) Acquisition Documents. The US Administrative Agent shall have
---------------------
received, prior to the proposed borrowing date for such Acquisition Loan,
true and correct copies, certified as to authenticity by the relevant
Borrower, of each Acquisition Document (unless requested by the US
Administrative Agent, without exhibits) (or the most recent form thereof)
pursuant to which the Permitted Acquisition financed with such Acquisition
Loan (the "Relevant Permitted Acquisition") is to be consummated, and such
------------------------------
other documents or instruments as may be reasonably requested by the US
Administrative Agent, including, without limitation, a copy of any debt,
instrument, security agreement or other material contract to which such
Borrower or its Subsidiaries may be a party upon the consummation of such
Relevant Permitted Acquisition. The Relevant Permitted Acquisition shall
have been (or shall concurrently be) consummated in accordance with such
agreements or an agreement substantially similar to the form presented to
the US Administrative Agent.
(b) Pro Forma Compliance. The Company shall be in compliance, on a
--------------------
pro forma basis after giving effect to the Relevant Permitted Acquisition,
--- -----
with the covenants contained in subsection 8.10 recomputed as at the last
day of the most recently ended calendar month of the Company for which
financial statements shall have been delivered to the Lenders pursuant to
subsection 7.1(a), (b) or (c) as if such Relevant Permitted Acquisition had
occurred on the first day of each relevant period for testing such
compliance, and the Borrower shall have delivered to the US Administrative
Agent a certificate of a Responsible Officer to such effect, together with
all relevant financial information for such Subsidiary or assets, and,
after giving effect to such transaction, any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for
Indebtedness permitted by subsection 8.4).
60
(c) Corporate Documents. The US Administrative Agent shall have
-------------------
received true and complete copies of the certificate of incorporation and
by-laws of any new Subsidiary executing any Loan Document to be delivered
on such Borrowing Date, certified as of such Borrowing Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary of such
new Subsidiary.
(d) Litigation. No litigation, investigation, injunction or
----------
restraining order shall be pending, entered or threatened (including any
proposed statute, rule or regulation) in respect of the Relevant Permitted
Acquisition which could reasonably be expected to have a Material Adverse
Effect.
(e) Filings. All filings and other actions required to create and
-------
perfect a Lien in favor of the relevant Administrative Agent for the
benefit of the relevant Lenders in all property to be acquired pursuant to
the Relevant Permitted Acquisition shall have been duly made or taken or
all necessary financing statements and other documents with respect to such
filing and other actions shall have been delivered to the relevant
Administrative Agent, and all such property shall be free and clear of
other Liens except Liens permitted under the Loan Documents; provided,
however, that no such Liens shall be granted with respect to any real
property acquired in a Permitted Acquisition with respect to which a Lien
permitted by subsection 8.1(l) exists.
(f) Lien Searches. The US Administrative Agent shall have received
-------------
copies of the results of any search conducted in connection with the
Relevant Permitted Acquisition on behalf of or at the request of any Loan
Party for any Uniform Commercial Code, judgment, tax lien or PPSA filings,
which may have been filed with respect to personal property which is to be
acquired (or which is owned by any Person to be acquired) in connection
with such Permitted Acquisition.
(g) Pledged Stock; Stock Powers. The relevant Administrative Agent
---------------------------
shall have received the certificates representing any additional shares of
Capital Stock to be pledged pursuant to the Security Documents in
connection with the Relevant Permitted Acquisition, together with an
undated stock power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and each addendum or supplement
as required under subsections 7.15, 7.16 and 7.17.
(h) Legal Opinions. The US Administrative Agent shall have received,
--------------
with a counterpart for each Lender, such executed legal opinions of counsel
to the Loan Parties, covering substantially the same matters as the opinion
delivered pursuant to subsection 6.1(i) or (ii), as the case may be, with
respect to any Person acquired in connection with the Relevant Permitted
Acquisition which shall become a party to a Loan Document.
(i) Environmental Assessment. The US Administrative Agent shall have
------------------------
received to the extent available or prepared on behalf of the Company one
or more environmental assessments with respect to the Relevant Permitted
Acquisition, in
61
form and substance reasonably satisfactory to it, concerning environmental
compliance and liability issues affecting either Borrower and the other
Loan Parties.
6.4 Conditions to Each Loan. The agreement of each Lender to make
-----------------------
any Loan requested to be made by it on any date (including, without limitation,
its initial Loan) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by either Borrower and any other Loan Party in or pursuant
to the Loan Documents shall be true and correct in all material respects on
and as of such date as if made on and as of such date, except for
representations and warranties stated to relate to a specific earlier date,
in which case such representations and warranties shall be true and correct
in all material respects on and as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the Loans
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 and the other Loan Documents
shall be reasonably satisfactory in form and substance to the US
Administrative Agent, and the US Administrative Agent shall have received
such other documents and legal opinions in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as they
shall reasonably request.
Each borrowing by either Borrower hereunder shall constitute a representation
and warranty by the Borrowers as of the date thereof that the conditions
contained in this subsection have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or any Administrative Agent
hereunder or under any other Loan Document, the Company shall and (except in the
case of delivery of financial information, reports and notices) shall cause each
of its Subsidiaries to:
7.1 Financial Statements, Etc. Furnish to the US Administrative
-------------------------
Agent for distribution to each Lender:
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Company, a copy of the consolidated and
consolidating balance sheets of the Company and its consolidated
Subsidiaries as at the end of such year and the related consolidated and
consolidating statements of income,
62
retained earnings and cash flows for such fiscal year and setting forth
comparative figures for the preceding fiscal year and, in the case of the
consolidated statements, certified by Xxxxxx Xxxxxxxx LLP or other
independent certified public accountants of recognized national standing
reasonably acceptable to the Required Lenders, together with comparative
figures for the preceding fiscal year prepared by the Company and an
unaudited schedule prepared by the Company containing comparable budgeted
figures for such period;
(b) as soon as available, but in any event within 45 days after the
end of each of the first three quarterly periods of each fiscal year of the
Company, the unaudited consolidated balance sheets of the Company and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income, retained earnings and of cash
flows of the Company and its consolidated Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter, setting
forth (i) in the case of such consolidated balance sheet, in comparative
form the figures as at the end of the previous fiscal year and (ii) in the
case of such consolidated statements of income and of cash flows, in
comparative form the budgeted figures for such quarter and the figures for
the corresponding quarter of the previous fiscal year, certified by a
Responsible Officer as being fairly stated in accordance with GAAP in all
material respects (subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event within 45 days after the
end of each calendar month, the consolidated statement of income for such
month and the fiscal year to date and the figures for the corresponding
month and year to date of the previous fiscal year;
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or Responsible Officer, as the
case may be, and disclosed therein).
7.2 Certificates; Other Information. Furnish to the US
-------------------------------
Administrative Agent for distribution to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 7.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in connection with their audit nothing has come to their attention to
cause them to believe that the Company or any of its Subsidiaries failed to
comply with the covenants contained in Sections 7 and 8; provided, however,
-------- -------
that such audit shall not have been directed primarily toward obtaining
knowledge of such noncompliance, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and (b), a certificate of a Responsible
Officer ("Compliance
----------
63
Certificate") stating that, to the best of such Officer's knowledge, during
-----------
such period (i) no Subsidiary has been formed or acquired (or, if any such
Subsidiary has been formed or acquired, the Company has complied with the
requirements of subsections 7.15, 7.16 and 7.17 with respect thereto), (ii)
neither the Company nor any of its Subsidiaries has changed its name, its
principal place of business, its chief executive office or the location of
any material item of tangible Collateral without complying with the
requirements of this Agreement and the Security Documents with respect
thereto, (iii) the Company in all material respects has observed or
performed all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and the other Loan Documents to be
observed, performed or satisfied by it, except as specified in such
certificate, and (iv) the Company has set forth in reasonable detail any
and all calculations necessary to show compliance with all of the financial
condition covenants set forth in subsections 8.3 through 8.5 inclusive, and
8.7 through 8.10 inclusive, including, without limitation, calculations and
reconciliations, if any, necessary to show compliance with such financial
condition covenants on the basis of GAAP consistent with those utilized in
preparing the audited financial statements referred to in subsection 5.1,
and such Officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate;
(c) no later than 15 days after the first day of each fiscal year of
the Company, a budget for the Company and its Subsidiaries using a format
reasonably satisfactory to the Administrative Agents and the Required
Lenders (including budgeted statements of income and sources and uses of
cash and balance sheets) prepared by the Company for each fiscal quarter of
such fiscal year, prepared in reasonable detail with appropriate
presentation and discussion of the principal assumptions upon which such
budgets are based, accompanied by the statement of a Responsible Officer of
the Company to the effect that, to the best of his knowledge, the budget is
a reasonable estimate for the period covered thereby.
(d) within five days after the same are filed, copies of all
financial statements and reports which either Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(e) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Books, Records and Inspections. The Company and its Subsidiaries
------------------------------
will keep proper books of record and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities. The
Company and its Subsidiaries will permit officers and designated representatives
of either Administrative Agent or any Lender to visit and inspect, under
guidance of officers of the Company or such Subsidiaries, any of the properties
of the Company and its Subsidiaries, and to examine the books of account of
the Company and its Subsidiaries and discuss the affairs, finances and accounts
of the
64
Company and its Subsidiaries with, and be advised as to the same by, its
and their respective officers, all at such reasonable times and intervals and to
such reasonable extent as either Administrative Agent or such Lender may
request.
7.4 Maintenance of Property, Insurance. (a) Part A of Schedule 7.4
----------------------------------
sets forth a true and complete listing of all insurance maintained by the
Company and its Subsidiaries with respect to its property as of the Closing
Date. The Company and its Subsidiaries will (i) keep all property necessary in
its business in good working order and condition (ordinary wear and tear
excepted), (ii) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as is consistent and in accordance with industry practice for
companies similarly situated and (iii) furnish to each Lender, upon written
request, full information as to the insurance carried. In addition, Part B of
Schedule 7.4 sets forth a true and complete listing of all insurance maintained
by the Company with respect to its Shareholders as of the Closing Date.
(b) The Company will (i) maintain with a financially sound and
reputable insurance company key-man insurance on J. Xxxxx Xxxxxx of at least
US$1,000,000 and (ii) furnish to each Lender, upon written request, full
information as to the insurance carried.
(c) At any time that insurance at levels described in Schedule 7.4 or
at the level described in subsection 7.4(b) is not being maintained by the
Company, the Company will notify the Lenders in writing within two Business Days
thereof. The provisions of this subsection 7.4 shall be deemed to be
supplemental to, but not duplicative of, the provisions of any Security Document
that require the maintenance of insurance.
7.5 Corporate Franchises. The Company and its Subsidiaries will do
--------------------
all things necessary to preserve and keep in full force and effect its existence
and all of its rights, franchises, licenses and patents, except where the
failure to do so could not have been reasonably expected to have a Material
Adverse Effect; provided, however, nothing in this subsection 7.5 shall prevent
-------- -------
the withdrawal by the Company or any of its Subsidiaries of its qualification as
a foreign corporation in a jurisdiction in which such withdrawal could not be
reasonably expected to have a Material Adverse Effect.
7.6 Compliance with Statutes, etc. The Company and its Subsidiaries
------------------------------
will comply with all applicable statutes, regulations and orders of, and all
applicable restrictions imposed by, all Governmental Authorities, domestic or
foreign, in respect of the conduct of its business and the ownership of its
property except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.7 Compliance with Environmental Laws. (a) The Company and its
----------------------------------
Subsidiaries will comply in all material respects with all Environmental Laws
applicable to ownership or use of their real property (including, without
limitation, state laws applicable to underground storage tanks), will promptly
pay or cause to be paid by other responsible parties all costs and expenses
incurred in such compliance, and will keep or cause to be kept all such real
properties free and clear of any Liens or any restrictions on the
65
ownership, occupancy, use or transferability of such real property imposed
pursuant to such Environmental Laws, except where the failure to do so could not
have been reasonably expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries will use or store or knowingly permit the
use or storage of Hazardous Materials on any of its respective real property, or
transport or knowingly permit the transportation of Hazardous Materials to or
from any of its respective real property except in material compliance with
Environmental Laws. Neither the Company nor any of its Subsidiaries will
generate, treat, release or dispose of, or permit the generation, treatment,
release or disposal of, Hazardous Materials on any of its respective real
property except in material compliance with Environmental Laws.
(b) At the reasonable request of either Administrative Agent or the
Required Lenders that at any time there exists a condition or set of
circumstances or facts which has given rise to a material Environmental Claim,
material noncompliance with an Environmental Law or an Event of Default exists
with respect to this Section 7.7, the Company will provide, at its sole cost and
expense, an environmental site assessment report concerning such real property
of the Company or its Subsidiaries which is affected by any Environmental Claim,
or noncompliance with an Environmental Law or material Event of Default,
prepared by an environmental consulting firm approved by the US Administrative
Agent or the Required Lenders, indicating the presence or Release or absence of
Hazardous Materials and the potential cost of any required removal or remedial
action in connection with any Hazardous Materials on such real property. If the
Company fails to provide the same within sixty (60) days after such request is
made or within a reasonable time thereafter, the US Administrative Agent or the
Required Lenders may upon ten (10) days' prior notice order the same or
undertake such an assessment all at the expense of the Company, and the Company
or its Subsidiary shall grant and hereby grants to the US Administrative Agent
and the Lenders and their agents access to such real property.
7.8 ERISA; Canadian Pension Plans. (a) As soon as possible and, in
-----------------------------
any event, within 10 days after the Company or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, the Company will
deliver to each of the Lenders a certificate of a Responsible Officer of the
Company setting forth details as to such occurrence and the action, if any,
which the Company or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by the Company, the ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator with respect thereto: that a Reportable Event has occurred; that
an accumulated funding deficiency has been incurred or an application may be or
has been made to the Secretary of the Treasury for a waiver or modification of
the minimum funding standard (including any required installment payments) or an
extension of any amortization period under Section 412 of the Code with respect
to a Plan; that a Plan has been or may be terminated, reorganized, partitioned
or declared insolvent under Title IV of ERISA; that a Plan has an Unfunded
Current Liability giving rise to a lien under ERISA or the Code; that
proceedings may be or have been instituted to terminate a Plan; that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; or that the Company or any ERISA Affiliate
will or may incur any liability (including any contingent or secondary
liability) to or on account of the termination of or withdrawal
66
from a Plan under Section 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or with
respect to a Plan under Section 4971 or 4975 of the Code or Section 409 or
502(i) or 502(1) of ERISA. The Company will deliver to each of the Lenders a
complete copy of the annual report (Form 5500) of each Plan required to be filed
with the Internal Revenue Service. In addition to any certificates or notices
delivered to the Lenders pursuant to the first sentence hereof, copies of annual
reports and any notices received by the Company or any ERISA Affiliate with
respect to any Plan shall be delivered to the Lenders no later than 10 days
after the later of the date such report or notice has been filed with the
Internal Revenue Service or received by the Company or the ERISA Affiliate.
(b) As soon as possible and, in any event, within 10 days after the
Company or any Subsidiary of the Company knows of any of the following, the
Company will deliver to the US Administrative Agent a certificate setting forth
the details of any such occurrence or condition and such action, if any, which
is required or proposed to be taken, together with any notices required or
proposed to be given to or filed with or by the Company or such Subsidiary, the
relevant pension or tax regulatory authority, a current or former member of a
Canadian Pension Plan, an administrator or member of an advisory committee of a
Canadian Pension Plan or a union representing current or former members of a
Canadian Pension Plan with respect thereto: that a Canadian Pension Plan is not
in substantial compliance with any applicable pension benefits and tax laws;
that a Canadian Pension Plan has an unfunded liability (either on a "going
concern" or on a "winding up" basis and determined in accordance with all
applicable laws and using assumptions and methods that are appropriate in the
circumstances and in accordance with generally accepted actuarial principles and
practices in Canada); that any contribution (including any special payment to
amortize any unfunded liability) required to be made in accordance with any
applicable law or the terms of a Canadian Pension Plan has not been made; that
an event has occurred or a condition exists with respect to a Canadian Pension
Plan that has resulted or could result in the Canadian Pension Plan being
ordered or required to be wound up in whole or in part pursuant to any
applicable pension benefits laws or having its registration revoked or refused
for the purposes of any applicable pension benefits and tax laws or being placed
under the administration of any relevant pension benefits regulatory authority
or being required to pay any taxes or penalties under any applicable pension
benefits and tax laws; that an order has been made or notice has been given
pursuant to any applicable pension benefits and tax laws in respect of any
Canadian Pension Plan requiring (or proposing to require) any person to take or
refrain from taking any action in respect thereof or that there has (or there
are circumstances that indicate that there has) been a contravention of any such
applicable laws; or that an event has occurred or a condition exists that has
resulted or could result in the Company or any Subsidiary of the Company being
required to pay, repay or refund any amount (other than contributions required
to be made or expenses required to be paid in the ordinary course) to or on
account of any Canadian Pension Plan or a current or former member thereof; or
that an event has occurred or a condition exists that has resulted or could
result in a payment being made out of a guarantee fund established under the
applicable pension benefits laws in respect of a Canadian Pension Plan.
67
(c) The Company will, and will cause each of its Subsidiaries, to
make all contributions (including any special payments to amortize any unfunded
liabilities) required to be made in accordance with all applicable laws and the
terms of each Canadian Pension Plan in a timely manner.
7.9 End of Fiscal Years; Fiscal Quarters. The Company will cause its
------------------------------------
and each of its Subsidiaries' fiscal years to end on December 31, and each of
its and its Subsidiaries' first three fiscal quarters to end on March 31, June
30 and September 30.
7.10 Performance of Obligations. The Company will, and will cause
--------------------------
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, indenture, security agreement and other debt instrument by which
it is bound and each other agreement or contract to which it is a party, except
such non-performances as could not reasonably be expected to individually or in
the aggregate have a Material Adverse Effect.
7.11 Payment of Taxes. Each of the Company and its Subsidiaries will
----------------
pay and discharge all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a Lien upon any properties of such Person;
provided, that such Person shall not be required to pay any such tax,
--------
assessment, charge, levy or claim which is being contested in good faith and by
proper proceedings if it has maintained adequate reserves with respect thereto
in accordance with GAAP.
7.12 Use of Proceeds. The proceeds of Loans shall be used by the
---------------
Borrowers (i) to fund Permitted Acquisitions, (ii) to provide funds in an
aggregate amount not to exceed US$10,000,000 for the purchase, repurchase,
redemption or other payment in respect of the Capital Stock of the Company,
(iii) to provide funds in an aggregate amount not to exceed US$20,000,000 for
the purchase, repurchase, redemption or other payment in respect of the Senior
Subordinated Notes and (iv) for general corporate purposes, including to finance
the working capital needs of the Borrowers.
7.13 Notices. Promptly give notice to the US Administrative Agent
-------
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries, including, without
limitation, under the Senior Subordinated Notes or (ii) litigation,
investigation or proceeding which may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely deter mined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
68
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries (i) in which the amount involved is US$1,000,000 or more and
not covered by insurance or (ii) in which injunctive or similar relief is
sought which could reasonably be expected to have a Material Adverse
Effect;
(d) any material adverse change in the business, operations,
property, condition (financial or otherwise) or prospects of the Borrower
and its Subsidiaries taken as a whole; and
(e) as soon as possible after a Responsible Officer of the Company
knows or reasonably should know thereof, (i) any Release by the Company or
any of its Subsidiaries of any Hazardous Materials required to be reported
under applicable Environmental Laws to any Governmental Authority, unless
the Company reasonably determines that the total Environmental Costs
arising out of such release or discharge are unlikely to exceed
US$1,000,000 or to have a Material Adverse Effect; (ii) any condition,
circumstance, occurrence or event not previously disclosed in writing to
the US Administrative Agent that could result in liability under applicable
Environmental Laws unless the Company reasonably determines that the total
Environmental Costs arising out of such condition, circumstance, occurrence
or event are unlikely to exceed US$1,000,000 or to have a Material Adverse
Effect, or could result in the imposition of any Lien or other restriction
on the title, ownership or transferability of any facilities and properties
owned, leased or operated by the Company or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect; and (iii)
any proposed action to be taken by the Company or any of its Subsidiaries
that would reasonably be expected to subject the Company or any of its
Subsidiaries to any material additional or different requirements or
liabilities under Environmental Laws, unless the Company determines that
the total Environmental Costs arising out of such proposed action are
unlikely to exceed US$1,000,000 or to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
7.14 Tax Status. The Company will comply in all respects with the
----------
Code to maintain its status as an S corporation as defined in Section 1361 of
the Code and will take all actions necessary so that the Company continues to
qualify as an S corporation (as defined in Section 1361 of the Code); provided,
however, the Company shall not be required to continue its status as an S
corporation in the event (a) the Company completes a public offering of its
Capital Stock or (b) the Company shall have provided to the US Administrative
Agent financial projections for the then remaining life of this Agreement
demonstrating pro forma compliance (after giving effect to the conversion of the
Company to a "C" corporation) with subsections 8.8, 8.9 and 8.10 for the then
remaining life of this Agreement.
69
7.15 Additional Mortgages. (a) The Company shall grant, and shall
--------------------
cause its Subsidiaries to grant, to the relevant Administrative Agent, for the
benefit of the relevant Lenders a lien and security interest in any real
property of such Person not covered by a Mortgage (including, without
limitation, any real property acquired by such Loan Party pursuant to a
Permitted Acquisition, but excluding any property that has a Lien thereon
permitted by subsection 8.1(l)) so long as the fair market value of such
property exceeds US$2,500,000 (or the C$ Equivalent thereof) an "Additional
----------
Mortgaged Property"), and shall take all actions reasonably requested by the US
------------------
Administrative Agent (including, without limitation, the obtaining of title
insurance policies and title surveys) in connection with the granting of such
security interest, provided, however, that no such Mortgage shall be required to
-----------------
be created with respect to any real property that is subject to a Lien permitted
by subsection 8.1(l).
(b) The liens and security interests required to be granted pursuant
to clause (a) above shall be granted pursuant to security documentation (which
shall be substantially similar to the Security Documents) reasonably
satisfactory in form and substance to the US Administrative Agent and shall
constitute valid and enforceable perfected security interests prior to the
rights of all third Persons and subject to no other Liens except such Liens as
are permitted by subsection 8.1. The Mortgages and other instruments related
thereto shall be duly recorded or filed in such manner and in such places and at
such times as are required by law to establish, perfect, preserve and protect
the Liens, in favor of the relevant Administrative Agent for the benefit of the
relevant Lenders, required to be granted pursuant to the Mortgages, as the case
may be, and, all taxes, fees and other charges payable in connection therewith
shall be paid in full by the respective Borrower. At the time of the execution
and delivery of the Mortgages, such Borrower shall cause to be delivered to the
relevant Administrative Agent such opinions of counsel, title insurance, title
surveys and other related documents other than real estate appraisals as may be
reasonably requested by such Administrative Agent or the relevant Required
Lenders to assure themselves that this subsection has been complied with.
(c) Each Borrower agrees that each action required by subsections (a)
or (b) with respect to any Mortgages, as the case may be, shall be completed
within 60 days of the later of (i) the date such action is requested to be taken
and (ii) the date of the Relevant Permitted Acquisition.
7.16 Additional Stock Pledges. (a) The Company will, and will cause
------------------------
each of its Subsidiaries to, pledge to the US Administrative Agent 100% of the
issued and outstanding Capital Stock (other than directors' qualifying shares)
which it or such Subsidiary holds of each Domestic Subsidiary of the Company
which has not previously been pledged hereunder. Such pledge shall be granted
pursuant to an addendum to the US Guarantee and Security Agreement substantially
in the form of Exhibit A thereto.
(b) The Company will, and will cause each of its US Subsidiaries to,
pledge (or grant analogous security interests) to the US Administrative Agent in
accordance with the laws of the jurisdiction of organization of the issuer
thereof 65% (rounded downward to eliminate any fraction of a share) of the
issued and outstanding shares of each class of
70
Capital Stock entitled to vote (within the meaning of Treasury Regulations
(S)1.956-2(c)(2)) ("Voting Stock") and 100% of the issued and outstanding shares
------------
of each class of Capital Stock not entitled to vote (within the meaning of such
Regulation) ("Non-Voting Stock") of each first-tier Foreign Subsidiary from time
----------------
to time of the Company which (in each case) is owned of record by the Company or
any Domestic Subsidiary of the Company and which has not previously been pledged
hereunder. Each such pledge shall, unless otherwise agreed to by the US
Administrative Agent, be granted pursuant to an addendum to the US Guarantee and
Security Agreement in such form as (x) may be reasonably required in order to
perfect a security interest in the pledged stock delivered thereto as defined
therein under the laws of the jurisdiction in which the issuer of such pledged
stock is organized and (y) is in form and substance reasonably satisfactory to
the US Administrative Agent.
(c) The Company will, and will cause each of the US Subsidiaries to,
execute and deliver each addendum required to be executed and delivered pursuant
to this subsection 7.16 promptly following the organization, acquisition or
identification of any such Subsidiary or first-tier Foreign Subsidiary. Each
such addendum shall be accompanied by (i) share certificates evidencing the
pledged stock thereunder (to the extent that such pledged stock is certificated)
as defined therein, together with an undated stock power for each such share
certificate (duly executed in blank and delivered by a duly authorized officer
of the pledgor of the pledged stock represented by such certificate), (ii) in
the case of the pledge of Capital Stock of any Foreign Subsidiary, evidence of
the taking of all such other actions as may be necessary or appropriate for the
perfection and first priority of such pledge and (iii) in the case of any
Subsidiary, such resolutions, incumbency certificates and legal opinions as are
reasonably requested by the US Administrative Agent and shall otherwise be in
form and substance reasonably satisfactory to the US Administrative Agent.
(d) The Canadian Borrower will, and will cause each of its
Subsidiaries to, pledge to the Canadian Administrative Agent 100% of the issued
and outstanding Capital Stock or other equity interests (other than directors'
qualifying shares) which it or such Subsidiary holds of each of its Subsidiaries
which has not previously been pledged hereunder. Such pledge shall, unless
otherwise agreed to by the Canadian Administrative Agent, be granted pursuant to
an addendum to the Canadian Security Agreement substantially in the form of
Exhibit A thereto.
(e) The Canadian Borrower will, and will cause each of its
Subsidiaries to, execute and deliver each addendum required to be executed and
delivered pursuant to this subsection 7.16 promptly following the organization,
acquisition or identification of any such Subsidiary. Each such addendum shall
be accompanied by (i) share certificates, if any, evidencing the pledged stock
thereunder (to the extent that such pledged stock is certificated) as defined
therein, together with an undated stock power for each such share certificate
(duly executed in blank and delivered by a duly authorized officer of the
pledgor of the pledged stock represented by such certificate), (ii) in the case
of the pledge of Capital Stock of any Foreign Subsidiary, evidence of the taking
of all such other actions as may be necessary or appropriate for the perfection
and first priority of such pledge and (iii) in the case of any Subsidiary, such
resolutions, incumbency certificates and legal opinions
71
as are reasonably requested by the Canadian Administrative Agent and shall
otherwise be in form and substance reasonably satisfactory to the Canadian
Administrative Agent.
7.17 Additional Guarantee and Security Agreements. Each Borrower
--------------------------------------------
will cause each of its respective Subsidiaries which has not previously done so
to execute and deliver to the relevant Administrative Agent an addendum to, and
thereby become a party to, the respective US Global Guarantee and Security
Agreement or Canadian Security Agreement and to take such other action as
reasonably shall be necessary or as the relevant Administrative Agent reasonably
shall request to grant to such Administrative Agent a perfected (to the extent
required in the US Global Guarantee and Security Agreement or Canadian Security
Agreement) security interest in all Collateral described in the US Global
Guarantee and Security Agreement or Canadian Security Agreement (subject to any
Liens permitted to encumber such Collateral pursuant to subsection 8.1). Each
such addendum to the relevant US Global Guarantee and Security Agreement or
Canadian Security Agreement shall be accompanied by such evidence of the taking
of all actions as may be necessary or appropriate for the perfection (to the
extent required in such US Global Guarantee and Security Agreement or Canadian
Security Agreement) of such security interest (including, without limitation,
the filing of any necessary Uniform Commercial Code or PPSA financing
statements) and such resolutions, incumbency certificates and legal opinions as
are reasonably requested by such Administrative Agent, all of which shall be in
form and substance reasonably satisfactory to such Administrative Agent.
7.18 Mortgaged Properties Documentation. The Company shall, within
----------------------------------
60 days after the Closing Date:
(a) Mortgages. Furnish to the US Administrative Agent each Mortgage,
---------
each executed and delivered by a duly authorized officer of the party
thereto, with a counterpart or a conformed copy for each Lender.
(b) Surveys. Furnish to the US Administrative Agent and the title
-------
insurance company issuing the policy referred to in subsection 7.18(b) (the
"Title Insurance Company") maps or plats of an as-built survey of the sites
-----------------------
of the US Mortgaged Properties and the Canadian Mortgaged Properties
certified to the US Administrative Agent and the Title Insurance Company in
a manner reasonably satisfactory to them, dated a date satisfactory to the
US Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor satisfactory to the US Administrative
Agent and the Title Insurance Company, which maps or plats and the surveys
on which they are based shall be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 1962 or such other certification reasonably
acceptable to the US Administrative Agent, and, without limiting the
generality of the foregoing, there shall be or is, as of a recent date,
surveyed and shown on such maps, plats or surveys the following: (i) the
locations on such sites of all the buildings, structures and other
improvements and the established building setback lines; (ii) the lines of
streets abutting the sites and width thereof; (iii) all access and other
easements
72
appurtenant to the sites or necessary or desirable to use the sites; (iv)
all roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the site, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the
surveyor; (v) any encroachments on any adjoining property by the building
structures and improvements on the sites; and (vi) if the site is described
as being on a filed map, a legend relating the survey to said map.
(c) Title Insurance Policy or Opinion. Furnish to the US
---------------------------------
Administrative Agent (i) in respect of each parcel covered by each
Mortgage, a mortgagee's title policy (or policies) or marked up
unconditional binder for such insurance dated the Closing Date and each
such policy shall (A) be in an amount satisfactory to the US Administrative
Agent; (B) be issued at ordinary rates; (C) 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 US
Administrative Agent; (D) name the US Administrative Agent for the benefit
of the Lenders as the insured thereunder; (E) be in the then current form
of ALTA Loan Policy approved by the state in which the parcel is located or
the comparable form in Canada, as the case may be; (F) contain such
endorsements and affirmative coverage as the US Administrative Agent may
reasonably request and (G) be issued by title companies satisfactory to the
US Administrative Agent (including any such title companies acting as co-
insurers or reinsurers, at the option of the US Administrative Agent), and
evidence satisfactory to the US Administrative Agent that all premiums in
respect of each such policy, and all charges for mortgage recording tax, if
any, have been paid, or (ii) in respect of each parcel covered by the
Canadian Mortgage, a title opinion in form and substance reasonably
satisfactory to the US Administrative Agent.
(d) Copies of Documents. Furnish to the US Administrative Agent a
-------------------
copy of all recorded documents referred to, or listed as exceptions to
title in, the title policy or policies or title opinion or opinion referred
to in subsection 7.18(b) and a copy, certified by such parties as the US
Administrative Agent may deem appropriate, of all other documents affecting
the property covered by each Mortgage.
SECTION 8. NEGATIVE COVENANTS
Each Borrower covenants and agrees with the Lenders and the
Administrative Agents that, so long as any Commitment or Loan is outstanding and
until payment in full of all amounts payable by such Borrower hereunder:
8.1 Liens. Such Borrower will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any of its property or assets (real or personal, tangible or
intangible), whether now owned or hereafter acquired, except:
73
(a) inchoate Liens for taxes not yet due or Liens for taxes being
contested in good faith and by appropriate proceedings for which adequate
reserves have been established in accordance with GAAP;
(b) Liens imposed by law, which were incurred in the ordinary course
of business and do not secure Indebtedness, such as carriers',
warehousemen's, materialmen's, mechanics' and similar Liens arising in the
ordinary course of business, and (x) which do not in the aggregate
materially detract from the value of such Person's property or assets or
materially impair the use thereof in the operation of the business of such
Person or (y) which are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or assets subject to any such Lien;
(c) Liens in existence on the Closing Date and listed on Schedule
8.1;
(d) Liens created pursuant to the Security Documents;
(e) easements, rights-of-way, restrictions, encroachments and other
similar charges, encumbrances or defects or irregulations of title not
materially interfering with the conduct of the business of such Borrower or
such Subsidiary;
(f) any attachment or judgment Lien so long as no Event of Default
shall have arisen under subsection 9(h) in connection therewith;
(g) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security
benefits as required by law, or securing leases incurred in the ordinary
course of business;
(h) Liens created by leases or subleases granted to others not
interfering in any material respect with the business of such Borrower or
such Subsidiary;
(i) Liens on property of such Borrower or any of its Subsidiaries
securing Capitalized Lease Obligations permitted by subsection 8.4(f),
provided that such Liens only secure the payment of such Capitalized Lease
--------
Obligation and encumber only the asset giving rise to the Capitalized Lease
Obligation;
(j) Liens placed upon equipment or machinery used in the ordinary
course of business of such Borrower or such Subsidiary at the time of the
acquisition thereof to secure Indebtedness incurred to pay all or a portion
of the purchase price thereof; provided that the Indebtedness secured by
--------
Liens permitted by this clause is permitted to be pursuant to subsection
8.4(f) and that such Liens do not encumber any other asset or property of
such Borrower or any of its Subsidiaries;
(k) Liens on real property acquired in connection with a Permitted
Acquisition, or which is owned by a Person acquired in connection with a
Permitted
74
Acquisition which becomes a Subsidiary after the date hereof, in
either case, securing Indebtedness permitted by subsection 8.4(f), provided
--------
that (i) such Liens existed at the time of such Permitted Acquisition and
were not created in anticipation thereof, (ii) any such Lien is not spread
to cover any other property or assets after the date of such Permitted
Acquisition and (iii) the amount of Indebtedness secured thereby is not
increased;
(l) Liens arising pursuant to purchase money mortgages securing
Indebtedness representing a portion of the purchase price of real property
acquired by such Borrower or such Subsidiary in accordance with subsection
8.2(d) or (e), provided, that (i) any such Liens attach only to the real
--------
property so purchased, (ii) the Indebtedness secured by any such Lien does
not exceed 100% of the lesser of the fair market value or the purchase
price of such real property at the time of the incurrence of such
Indebtedness and (iii) the Indebtedness secured by Liens permitted by this
clause is permitted pursuant to subsection 8.4(f);
(m) Liens created by applicable by-laws and other governmental
regulations and restrictions provided that the same do not materially
interfere with the conduct of the business of the owner of the property
subject thereto; and
(n) reservations, limitations and conditions expressed in any
original grants from the Crown.
8.2 Consolidation, Merger, Purchase or Sale of Assets, etc. Such
-------------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger,
amalgamation or consolidation, nor convey, sell, lease or otherwise dispose of
(or agree to do any of the foregoing at any future time) all or any part of its
property or assets (including, without limitation, stock of any Subsidiary), nor
enter into any partnerships, joint ventures or sale-leaseback transactions, nor
purchase or otherwise acquire (in one or a series of related transactions) any
part of the property or assets (other than purchases or other acquisitions by
such Borrower or such Subsidiary of inventory, materials and equipment in the
ordinary course of business) of any Person, except:
(a) Capital Expenditures permitted by subsection 8.7;
(b) sales of inventory and other assets in the ordinary course of
business;
(c) investments permitted by subsection 8.5;
(d) Permitted Acquisitions;
(e) so long as prior to and after giving effect thereto, there shall
not be a Default or Event of Default in existence, (i) the purchase of the
Travelers Corporation Building Archives, provided that the aggregate
--------
consideration paid in connection therewith shall not exceed US$6,000,000,
(ii) the purchase of the
75
Montreal Property, provided that the aggregate consideration paid in
--------
connection therewith shall not exceed C$5,250,000, (iii) the Real Estate
Transactions (as defined in the offering memorandum for the Senior
Subordinated Notes), provided that the aggregate consideration paid in
--------
connection therewith shall not exceed US$15,000,000 and (iv) other
purchases of real property in the ordinary course of business, provided
--------
that the aggregate consideration paid during any fiscal year of the Company
in connection with all such other purchases (excluding any purchases in
connection with a Permitted Acquisition) shall not exceed US$5,000,000;
(f) other Dispositions of property or assets (i) which do not exceed
US$2,500,000 in the aggregate or (ii) with respect to which (x) the Company
or a Subsidiary, as the case may be, receives consideration at the time of
such Disposition at least equal to the fair market value thereof; (y) not
less than 85% of such consideration is in the form of cash; and (z) the Net
Cash Proceeds thereof are applied in accordance with subsection 4.4;
(g) leases (as lessee) of real or personal property (so long as such
lease does not create Capitalized Lease Obligations);
(h) mergers, consolidations or amalgamations of one or more
Subsidiaries (i) with and into the Company or another Subsidiary or (ii) in
which any Subsidiary is the surviving or resulting company; and
(i) Restricted Payments to the extent permitted by subsection 8.3.
8.3 Limitation on Restricted Payments. The Company will not make any
---------------------------------
"Restricted Payments" (as defined in the Senior Subordinated Notes Indenture)
other than in accordance with the provisions of Section 4.09 of the Senior
Subordinated Notes Indenture (relating to "Limitation on Restricted Payments")
as such provisions are in effect on the date hereof without giving effect to any
amendments, supplements or other modifications thereto or any termination
thereof, which provisions, together with related definitions, are deemed
incorporated herein by reference, as if set forth at length herein.
8.4 Indebtedness. Such Borrower will not, and will not permit any of
------------
its Subsidiaries to, contract, create, incur, assume nor suffer to exist any
Indebtedness, except:
(a) Indebtedness in respect of the Loans, any Notes, the Security
Documents and the other obligations of the Loan Parties under this
Agreement and the other Loan Documents;
(b) Indebtedness outstanding on the Closing Date (including
Indebtedness evidenced by the Senior Subordinated Notes) and listed on
Schedule 6.1(d), and any subsequent extension, renewal or refinancing
thereof which does not increase the amount thereof or result in any
advancement in the maturity date of any portion of the principal thereof;
76
(c) so long as prior to, and after giving effect thereto, there shall
not be a Default or Event of Default then in existence, Indebtedness of the
Company incurred to finance the purchase by the Company of (i) the
Travelers Corporation Building Archives, in an aggregate principal amount
not to exceed US$4,000,000 and (ii) the Montreal Property, in an aggregate
principal amount not to exceed C$4,000,000;
(d) Permitted Intercompany Indebtedness;
(e) Indebtedness under Interest Rate Protection Agreements entered
into in the ordinary course of business; and
(f) additional Indebtedness (including, without limitation, (i)
Capitalized Lease Obligations and other Indebtedness secured by Liens
permitted under subsection 8.1(j) or 8.1(k), (ii) Indebtedness assumed in
connection with any Permitted Acquisition and (iii) Indebtedness incurred
to finance the acquisition of any real property in accordance with
subsection 8.2(e)(iv)) up to but not exceeding US$20,000,000 at any one
time outstanding.
8.5 Advances, Investments and Loans. Such Borrower will not, and
-------------------------------
will not permit any of its Subsidiaries to, directly or indirectly lend money or
credit or make advances to any Person, nor purchase or acquire any stock,
obligations or securities of, or any other interest in, nor make any capital
contribution to, any other Person, except:
(a) receivables created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary terms;
(b) Permitted Acquisitions;
(c) such Borrower may make and maintain travel, relocation and other
expense advances to employees for business-related activities in the
ordinary course of business and consistent with past practice, in an
aggregate outstanding principal amount not to exceed US$500,000 at any
time;
(d) loans and advances which create Indebtedness permitted by
subsection 8.4(d);
(e) the Company may enter into Interest Rate Protection Agreements to
the extent permitted pursuant to subsection 8.4(e);
(f) Permitted Intercompany Indebtedness; and
(g) reasonable and customary loans made to employees not to exceed
$500,000 in the aggregate at any one time outstanding, plus any loans which
may be required to be made under the Company's Nonqualified Stock Option
Plan in an amount not to exceed US$2,000,000.
77
8.6 Transactions with Affiliates. Such Borrower will not, and will
----------------------------
not permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate except that:
(a) the Company may enter into transactions permitted by subsection
8.5(g);
(b) the Company may pay customary and reasonable fees to any directors
of the Company who would not be Affiliates of the Company if they were not
directors;
(c) the Company and the Canadian Borrower shall be permitted to
perform the Management Services Agreement;
(d) the Company may make any Restricted Payment that is not prohibited
by the provisions described under "Limitations on Restricted Payments"
contained in Section 4.09 of the Senior Subordinated Notes Indenture and
incorporated by reference in subsection 8.3, including, without limitation,
the distributions or other payments permitted to be made to the Permitted
Holders in the aggregate amount of up to US$700,000 in any one fiscal year
and payments made to Xxx X. Xxxxxx, Xx. or his spouse pursuant to a pension
obligation of the Company in the annual amount of $96,000; or
(e) the Company or any Subsidiary of the Company may pay customary
investment banking, underwriting, placement agent or financial advisor fees
paid in connection with services rendered to the Company or any Subsidiary
of the Company;
(f) the Company may enter into any transaction, approved by the Board
of Directors of the Company in good faith, with an officer, director,
employee or consultant of the Company or of any Subsidiary in his or her
capacity as an officer, director, employee or consultant entered into in
the ordinary course of business, including compensation, indemnity and
employee benefit arrangements with any officer, director, employee or
consultant of the Company or of any Subsidiary;
(g) the Company may enter into transactions creating Permitted
Intercompany Indebtedness; and
(h) the Company may make rental or lease payments and perform its
obligations under existing leases with Affiliates in accordance with the
terms thereof;
provided, however, that the Company and its Subsidiaries may renew any of the
-------- -------
existing Affiliate Contracts through either a renewal option or upon expiration
of an arrangement on substantially similar terms to those in effect immediately
preceding such expiration.
78
8.7 Capital Expenditures. Such Borrower will not, and will not
--------------------
permit any of its Subsidiaries to, make any expenditure (collectively, "Capital
-------
Expenditures") for fixed or capital assets (including, without limitation,
------------
expenditures for maintenance and repairs which should be capitalized in
accordance with GAAP and including Capitalized Lease Obligations and including
Client Acquisition Costs (whether or not such costs would be classified as
capital expenditures in accordance with GAAP) but excluding (a) Capital
Expenditures related to a Permitted Acquisition, provided that such amounts
--------
expended in 1996 relating to any Permitted Acquisition shall not exceed 10% of
the Purchase Price of such Permitted Acquisition; (b) insurance proceeds
received in connection with any Casualty Event used as and permitted by
subsection 4.4(d) to effect the repair, construction or rebuilding of the asset
which is the subject of to such Casualty Event; (c) amounts expended to purchase
the Travelers Corporation Building Archives and the Montreal Property in
accordance with subsections 8.2(e)(i) and 8.2(e)(ii), respectively; and (d)
amounts expended to purchase real property pursuant to subsection 8.2(e)(iii)
and (iv)) which should be capitalized in accordance with GAAP; provided that the
--------
Company and its Subsidiaries may make Capital Expenditures so long as the
aggregate amount thereof (other than those described in clauses (a) through (d)
above) does not exceed (i) during the 1996 fiscal year of the Company,
US$20,000,000, or (ii) during any fiscal year of the Company thereafter, an
amount equal to the sum of (x) 15% of total consolidated revenues of the Company
and its Subsidiaries during the 12-month period ending on September 30 of such
year plus (y) to the extent not included in clause (x) above, 15% of the total
revenues for such 12-month period of all businesses acquired by the Company and
its Subsidiaries during such 12-month period (including the revenues of each
such business for the period from the beginning of such 12-month period through
the date of the acquisition thereof).
8.8 Fixed Charge Coverage Ratio. Commencing on September 30, 1997,
---------------------------
the Company will not permit its Fixed Charge Coverage Ratio for any period of
four consecutive fiscal quarters ending on and after such date, in each case
taken as one accounting period, to be less than 1.0:1.0.
8.9 Interest Coverage Ratio. The Company will not permit its ratio
-----------------------
of EBITDA to Interest Expense for any period of four consecutive fiscal quarters
ending during any period set forth below, in each case taken as one accounting
period, to be less than the ratio set forth opposite such period below:
------------------------------------------------------------------------------------------
Period Ratio
------ -----
------------------------------------------------------------------------------------------
From and including the Closing Date through June 30, 1998 1.50 to 1.00
------------------------------------------------------------------------------------------
From and including July 1, 1998 through June 30, 1999 1.75 to 1.00
------------------------------------------------------------------------------------------
From and including July 1, 1999 and thereafter 2.00 to 1.00
------------------------------------------------------------------------------------------
8.10 Leverage Ratio. (a) The Company will not permit the Leverage
--------------
Ratio at any time during any period set forth below to exceed the ratio set
forth opposite such period below:
79
-----------------------------------------------------------------------------------
Period Ratio
------ -----
-----------------------------------------------------------------------------------
From and including the Closing Date through June 30, 1999 5.75 to 1.00
-----------------------------------------------------------------------------------
From and including July 1, 1999 and thereafter 5.50 to 1.00
-----------------------------------------------------------------------------------
(b) The Company will not at any time during any period set forth below
permit the ratio of (i) the aggregate principal amount of Loans then
outstanding, less any cash balances in excess of US$500,000 then outstanding to
the credit of the Company and its Subsidiaries in their operating accounts to
(ii) Adjusted EBITDA of the Company for the then most recently ended period of
four consecutive fiscal quarters for which financial statements shall have been
delivered to the Lenders pursuant to subsection 7.1(a) or 7.1(b):
-----------------------------------------------------------------------------------
Period Ratio
------ -----
-----------------------------------------------------------------------------------
From and including the Closing Date through June 30, 1999 2.75 to 1.00
-----------------------------------------------------------------------------------
From and including July 1, 1999 through June 30, 2000 2.50 to 1.00
-----------------------------------------------------------------------------------
From and including July 1, 2000 through June 30, 2001 2.25 to 1.00
-----------------------------------------------------------------------------------
From and including July 1, 2001 through June 30, 2002 2.00 to 1.00
-----------------------------------------------------------------------------------
From and including July 1, 2002 and thereafter 1.75 to 1.00
------------------------------------------------------------------------------------
8.11 Limitation on Voluntary Payments and Modifications of
-----------------------------------------------------
Indebtedness and Certain Other Agreements; etc. The Company will not, and will
-----------------------------------------------
not permit any of its Subsidiaries to:
(a) make (or give any notice in respect of) any voluntary or optional
payment or prepayment or redemption or acquisition for value of any
Indebtedness (other than the Loans), other than the redemption of the
Senior Subordinated Notes with the net proceeds or one or more Public
Equity Offering (as defined in the Senior Subordinated Notes Indenture) to
the extent permitted under the Senior Subordinated Notes Indenture;
(b) amend or modify, or permit the amendment or modification of, or
relating to the payment or prepayment of the principal of or interest on
any Indebtedness (other than any such amendment or modification which would
extend the maturity or reduce the amount of any payment of principal
thereof or which would reduce the rate or extend the date for payment of
interest thereon);
(c) amend or modify, or permit the amendment or modification of, any
of the terms and conditions of the Senior Subordinated Note Indenture or
the Senior Subordinated Notes (other than (i) as permitted by clause (b)
above and (ii) those that would relax any restriction on the Company
imposed thereby and would not have an adverse effect upon the Lenders); or
80
(d) amend, modify or change, or enter into any new Shareholders'
Agreement (including the Corporate Buy Sell Agreement), Affiliate Contract,
Management Services Agreement or Tax Sharing Agreement, except for any such
amendment, modification or change which is beneficial to the Company and
its Subsidiaries.
8.12 Limitation on Issuance of Capital Stock. The Company will not
---------------------------------------
permit any of its Subsidiaries to issue any Capital Stock (including by way of
sales of treasury stock) or any options or warrants to purchase, or securities
convertible into, Capital Stock, except for issuances which do not decrease the
percentage of the ownership of any Subsidiary currently held, directly or
indirectly, by the Company.
8.13 Business. The Company will not, and will not permit any of its
--------
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which it is engaged on the date hereof and any other reasonably
related businesses. The Limited Partnerships shall engage in no business other
than owning the stock of the Canadian Borrower.
8.14 Designation of "Designated Senior Indebtedness". The Company
-----------------------------------------------
will not, without the prior written consent of the Required Lenders, designate
any Indebtedness as "Designated Senior Indebtedness" within the meaning of such
term as used in the Senior Subordinated Note Indenture.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) Either Borrower shall fail to pay any principal of any Loan 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 the Company
or any other Loan Party herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) The Company or any other Loan Party shall default in the
observance or due performance of any agreement contained in Section 8,
Sections 6 and 7 of the US Mortgage, and Article 2 of the Canadian Security
Agreement; or
81
(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 after the earlier of (i) the date upon
which written notice thereof is given to the Company by either
Administrative Agent or any Lender or (ii) the date upon which either
Borrower obtains knowledge of such default; or
(e) The Company or any of its Subsidiaries shall (i) default (unless
such default has been waived by the relevant creditor) in any payment of
principal of or interest on any Indebtedness (other than the Loans) or in
the payment of any Guarantee Obligation, beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness
or Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event
-------- -------
of Default shall exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any default
or other event or condition referred to in this paragraph shall have
occurred shall be equal to at least US$1,000,000; or
(f) (i) The Company or any of its material Subsidiaries shall
commence any voluntary case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Company or
any of its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Company or any
of its material Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Subsidiaries any
case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its 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
82
entry thereof; or (iv) the Company or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Company or any of its Subsidiaries shall generally not,
or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any non-exempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise
on the assets of the Company or any Commonly Controlled Entity, (iii) a
Reportable Event shall occur with respect to, or proceedings shall commence
to have a trustee appointed, or a trustee shall be appointed, to administer
or to terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Company or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
a Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; but only if, in each case in clauses (i)
through (vi) above, such event or condition, together with all other such
events or conditions, if any, involve an aggregate amount in excess of
US$3,000,000; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of US$3,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) (i) Any of the Security Documents shall cease, for any reason, to
be in full force and effect, or the Company or any other Loan Party which
is a party to any of the Security Documents shall so assert; or (ii) the
Lien created by any of the Security Documents shall cease to be enforceable
and of the same effect and priority purported to be created thereby; or
(iii) any guarantee in any of the Security Documents shall cease, for any
reason, to be in full force and effect or any Loan Party which is a
guarantor thereunder shall so assert; or
(j) Any Change of Control shall occur; or
(k) Any "Dissolution Event", as defined in the Articles of
Association of the Canadian Borrower shall occur;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to either
Borrower, automatically the
83
Commitments shall immediately terminate and the Loans hereunder (including the
face amount of all Bankers' Acceptances accepted by any C$ Lender), with accrued
interest thereon, and all other amounts owing under this Agreement shall
immediately become due and payable, and (B) if such event is any other Event of
Default, either or both of the following actions may be taken:
(i) (x) with the consent of the Required US$ Lenders, the US
Administrative Agent may, or upon the request of the Required US$ Lenders,
the US Administrative Agent shall, by notice to the Company declare the US
Commitments to be terminated forthwith, whereupon the US Commitments shall
immediately terminate; and (y) with the consent of the Required US$
Lenders, the US Administrative Agent may, or upon the request of the
Required US$ Lenders, the US Administrative Agent shall, by notice to the
Company, declare the US$ Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement to the US$ Lenders to be
due and payable forthwith, whereupon the same shall immediately become due
and payable; and
(ii) (x) with the consent of the Required C$ Lenders, the Canadian
Administrative Agent may, or upon the request of the Required C$ Lenders,
the Canadian Administrative Agent shall, by notice to the Canadian Borrower
declare the Canadian Commitments to be terminated forthwith, whereupon the
Canadian Commitments shall immediately terminate; and (y) with the consent
of the Required C$ Lenders, the Canadian Administrative Agent may, or upon
the request of the Required C$ Lenders, the Canadian Administrative Agent
shall, by notice to the Canadian Borrower declare the C$ Loans hereunder
(including the face amount of all Bankers' Acceptances accepted by any C$
Lender), with accrued interest thereon, and all other amounts owing under
this Agreement to the Canadian Lenders to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints the Administrative Agents as the agents of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agents, in such capacities, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agents by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agents shall not have any duties or responsibilities, except
those expressly set forth in this Agreement, or any fiduciary relationship with
any Lender, and no implied
84
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against either Administrative Agent. The Borrowers shall be entitled to
conclusively rely upon any statement made by either Administrative Agent that it
has received the approval of the Required Lenders, the Required US$ Lenders, the
Required C$ Lenders, all of the Lenders, all of the US$ Lenders or all of the C$
Lenders.
10.2 Delegation of Duties. Each Administrative Agent may execute any
--------------------
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Neither Administrative Agent
shall be responsible to any Lender for the negligence or misconduct of any
agents or attorneys in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither Administrative Agent nor any of
----------------------
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by such Administrative Agent under or in connection with,
this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party to perform its
obligations hereunder or thereunder. Neither Administrative Agent shall be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of any Loan Party.
10.4 Reliance by Administrative Agent. Each Administrative Agent
--------------------------------
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation reasonably believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts selected by the
Administrative Agent. Each Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with such
Administrative Agent. Each Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan
85
Documents in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
10.5 Notice of Default. Neither Administrative Agent shall be deemed
-----------------
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Administrative Agent has received notice from a Lender or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." In the event
that either Administrative Agent receives such a notice, such Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agents shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders; provided that unless and until the
--------
Administrative Agents shall have received such directions, the Administrative
Agents may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as they
shall deem advisable and in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agents and Other Lenders. Each
-------------------------------------------------------
Lender expressly acknowledges that neither Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by either Administrative
Agent hereinafter taken, including any review of the affairs of either Borrower,
shall be deemed to constitute any representation or warranty by such
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agents that it has, independently and without reliance upon either
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of either Borrower and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon either
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of any Loan Party. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agents hereunder, neither Administrative Agent
shall have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party which
may come into the possession of such Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agents in their respective capacities as such (to the extent not
reimbursed by the Borrowers and without limiting the obligation of either
Borrower to do so), ratably according to their respective Commitment Percentages
in effect on the date on which indemnification is
86
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 the Administrative Agents in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agents under or in connection with any of the foregoing; provided
--------
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from an Administrative Agent's
gross negligence or willful misconduct. The agreements in this subsection shall
survive the payment of the Loans and all other amounts payable hereunder.
10.8 Administrative Agents in Their Individual Capacity. The
--------------------------------------------------
Administrative Agents and their Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with either Borrower as though
the Administrative Agents were not the Administrative Agents hereunder and under
the other Loan Documents. With respect to the Loans made by it, each
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms "Lender" and "Lenders" shall
include such Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. Each Administrative Agent may
------------------------------
resign as Administrative Agent upon 15 Business Days' prior written notice to
the Borrowers and the Lenders. If either Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders, which successor agent (provided that it shall have been approved by the
Company), shall succeed to the rights, powers and duties of such Administrative
Agent hereunder. Such resignation shall take effect upon the appointment of a
successor agent. Effective upon such appointment and approval, the term
"Administrative Agent" shall mean such successor agent, and such former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
87
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. (a) Neither this Agreement nor any
----------------------
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Required Lenders may, or, with the written consent of the
Required Lenders, the US Administrative Agent may, from time to time, (1) enter
into with the Borrowers written amendments, supplements or modifications hereto
and to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Borrowers hereunder or thereunder or (2) waive, on such
terms and conditions as the Required Lenders or the Administrative Agents, as
the case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
-------- -------
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan or of any installment thereof, or reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Lender's Commitments, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders or consent
to the assignment or transfer by either Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents or release all or
substantially all of the Collateral, in each case without the written consent of
all the Lenders, or (iii) reduce the percentage specified in the definition of
Required US$ Lenders or Required C$ Lenders without the written consent of all
the US$ Lenders or C$ Lenders, respectively, or (iv) amend, modify or waive any
provision of Section 10 without the written consent of the then Administrative
Agents, or (v) amend, modify or waive any provision of this Agreement regarding
the allocation of prepayment amounts among the US$ Loans and the C$ Loans or the
application of such prepayment amounts to the respective installments of
principal under the respective US$ Loans and C$ Loans without the written
consent of the Required US$ Lenders and the Required C$ Lenders; or (vi) subject
to clause (i) of this proviso as it relates to reducing the amount or extending
the scheduled date of maturity of any Loan or any installment thereof, amend,
modify or waive any provision of (x) Section 2 without the written consent of
the Required US$ Lenders or (y) Section 3 without the written consent of the
Required C$ Lenders. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrowers, the Lenders, the Administrative Agents and all future
holders of the Loans. In the case of any waiver, the Borrowers, the Lenders and
the Administrative Agents shall be restored to their former positions and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereon.
(b) If in connection with any proposed amendment, supplement, waiver
or other modification of any of the provisions of this Agreement as contemplated
by subsection 11.1(a), the consent of the Required Lenders or of all of the
Lenders, as the case
88
may be, for the relevant level of consent required, is not obtained, the
Borrowers shall have the rights as follows. In matters requiring the consent of
all Lenders or the consent of the Required Lenders, the Borrowers shall have the
right to require any nonconsenting Lender to transfer or assign, in whole or in
part, without recourse (in accordance with subsection 11.6) all or part of its
interest, rights and obligations under this Agreement to another Person
(provided that the relevant Borrower with the reasonable cooperation of such
Lender identifies a Person which is ready, willing and able to be an Assignee
with respect to thereto which shall assume such assigned obligations (which
Assignee may be another Lender, if such Assignee Lender accepts such
assignment); provided that (A) the Assignee shall have paid to such Lender in
--------
immediately available funds an amount equal to the principal of and interest
accrued to the date of such payment on the Loans made by it hereunder and all
other amounts owed to it hereunder, including, without limitation, any amounts
that would be owing under subsection 4.12 if such Loans were prepaid on the date
of such assignment, and (B) such assignment of the Commitment of such Lender and
prepayment of Loans does not conflict with any law, rule or regulation or order
of any Governmental Authority. In cases where the consent referred to above is
only with respect to the Required C$ Lenders or Required US$ Lenders, the
foregoing provisions shall only apply to the Required C$ Lenders or Required US$
Lenders, as the case may be.
11.2 Notices. Unless otherwise expressly provided herein, all
-------
notices, requests and demands to or upon the respective parties hereto to be
effective shall be in writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made (a) in the case of delivery by hand, when delivered, (b) in the case of
delivery by mail, three days after being deposited in the mails, postage
prepaid, or (c) in the case of delivery by facsimile transmission, when sent and
receipt has been confirmed, addressed as follows in the case of the Borrowers
and the Administrative Agents, and as set forth in Schedule 1.1 in the case of
the other parties hereto, or to such other address as may be hereafter notified
by the respective parties hereto:
Company: Xxxxxx Xxxxx Corp.
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
Canadian
Borrower: Xxxxxx Xxxxx Command Company
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxx, Xxxxxxx, X0X 0X0
Fax: (000) 000-0000
89
with a copy to:
--------------
Xxxxxx Xxxxx Corp.
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
US Administrative
Agent: Canadian Imperial Bank of Commerce,
New York Agency, Syndications
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
with a copy to:
---------------
CIBC Wood Gundy Securities Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
Canadian
Administrative
Agent: Canadian Imperial Bank of Commerce,
Commerce Court West 7
Toronto, Ontario, Canada N5L 1A2
Attention: Xxxxx Xxxxxxxx
Fax: 000-000-0000
provided that any notice, request or demand to or upon the Administrative Agents
--------
or the Lenders pursuant to Section 2, 3 or 4 shall not be effective until
received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of either Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, in the other Loan Documents and in any document,
certificate
90
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.
11.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
-----------------------------
reimburse each Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agents, (b) to pay or reimburse each Lender and each
Administrative Agent for all of its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents following an Event of Default,
including, without limitation, the fees and disbursements of counsel to each
Lender and of counsel to each Administrative Agent, (c) to pay, indemnify, and
hold each Lender and each Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay (other than delay caused by any Administrative Agent or
Lender) in paying, stamp, excise and other taxes, if any, which may be payable
or determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any other documents prepared in
connection herewith, and (d) to pay, indemnify, and hold each Lender and each
Administrative Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, and performance of this Agreement, the other
Loan Documents and any such other documents, including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of either Borrower,
any of their Subsidiaries or any of their properties (all the foregoing in this
clause (d), collectively, the "indemnified liabilities"), provided that neither
--------
Borrower shall have any obligation hereunder to either Administrative Agent or
any Lender with respect to indemnified liabilities arising from the gross
negligence or willful misconduct of either Administrative Agent or any such
Lender. The agreements in this subsection shall survive repayment of the Loans
and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments. (a)
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrowers,
the Lenders, the Administrative Agents and their respective successors and
assigns, except that neither Borrower may assign or transfer any of its rights
or obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, with the consent of the relevant Borrower and the
relevant Administrative Agent (which in each case shall not be unreasonably
withheld), in the ordinary course of its commercial banking business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
------------
Lender, any Commitment of such Lender or any other
91
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrowers and the Administrative Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. No Lender shall
be entitled to create in favor of any Participant, in the participation
agreement pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any matter
relating to this Agreement or any other Loan Document except for those specified
in clauses (i) and (ii) of the proviso to subsection 11.1(a). Each Borrower
agrees that if amounts outstanding under this Agreement are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, provided that, in purchasing such
--------
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in subsection 11.7(a) as fully
as if it were a Lender hereunder. The Company also agrees that each Participant
shall be entitled to the benefits of subsections 4.10, 4.11 and 4.12 with
respect to its participation in the Commitments and the Loans outstanding from
time to time as if it was a Lender; provided that, in the case of subsection
--------
4.11, such Participant shall have complied with the requirements of said
subsection and provided, further, that no Participant shall be entitled to
-------- -------
receive any greater amount pursuant to any such subsection than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any affiliate thereof or, with the consent of the relevant Borrower
and the relevant Administrative Agent (which in each case shall not be
unreasonably withheld), to an additional bank or financial institution (an
"Assignee") all or any part of its rights and obligations under this Agreement
---------
and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit I, executed by such Assignee, such
assigning Lender (and, in the case of an Assignee that is not then a Lender or
an affiliate thereof, by the Company and the relevant Administrative Agent) and
delivered to the relevant Administrative Agent for its acceptance and recording
in the relevant Register, provided that, in the case of any such assignment to
--------
an additional bank or financial institution, the sum of the aggregate principal
amount of the Loans and the aggregate amount of the Available US Commitment or
Available Canadian Commitment, as the case may be, being assigned is equal to at
least US$10,000,000 and C$10,000,000, respectively (or such lesser amount as may
be agreed to by the relevant Borrower and the relevant Administrative Agent).
Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Assignee thereunder shall be a party hereto and,
92
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder with a Commitment as set forth therein, and
(y) the assigning Lender thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) and paragraph (e) of this subsection, the
consent of either Borrower shall not be required, and, unless requested by the
Assignee and/or the assigning Lender, new Notes shall not be required to be
executed and delivered by the relevant Borrower, for any assignment which occurs
at any time when any of the events described in subsection 9(f) shall have
occurred and be continuing.
(d) Each Administrative Agent, on behalf of the relevant Borrower
shall maintain at the address of such Administrative Agent referred to in
subsection 11.2 a copy of each Assignment and Acceptance delivered to it and a
register (each a "Register") for the recordation of the names and addresses of
--------
the Lenders and the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrowers, the Administrative Agents
and the Lenders may (and, in the case of any Loan or other obligation hereunder
not evidenced by a Note, shall) treat each Person whose name is recorded in the
Registers as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the relevant Register.
The Registers shall be available for inspection by either Borrower or any Lender
at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the relevant Borrower and the relevant
Administrative Agent) together with payment by the Assignee and/or the assigning
Lender to the US Administrative Agent of a registration and processing fee of
US$3,500, the US Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the relevant Borrower.
(f) Each Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
----------
approved by the Company any and all financial information in such Lender's
possession concerning such Borrower and its Subsidiaries which has been
delivered to such Lender by or on behalf of such Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of such
Borrower in connection with such Lender's credit evaluation of such Borrower and
its Subsidiaries prior to becoming a party to this Agreement; provided that
--------
93
such Transferee or prospective Transferee agrees to be bound by the provisions
of subsection 11.16.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this subsection concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
11.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
-------------------- ----------
Lender") shall at any time receive any payment of all or part of its Loans which
------
shall have been made under either Commitment, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by set-
off, pursuant to events or proceedings of the nature referred to in subsection
9(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans made under such Commitment, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders
which hold Loans made under such Commitment; provided, however, that if all or
-------- -------
any portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to either Borrower,
any such notice being expressly waived by such Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by such Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set-
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of such Borrower. Each Lender agrees promptly to notify
the relevant Borrower and the relevant US Administrative Agent after any such
set-off and application made by such Lender, provided that the failure to give
--------
such notice shall not affect the validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with each Borrower and each
Administrative Agent.
94
11.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the Borrowers, the Administrative Agents and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by either Administrative Agent,
either Borrower or any Lender relative to subject matter hereof not expressly
set forth or referred to herein or in the other Loan Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission To Jurisdiction; Waivers. Each Borrower hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Borrower at its address set forth in subsection 11.2 or at such other
address of which the Administrative Agents shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
95
11.13 Foreign Currency Judgments. (a) If, for the purpose of
--------------------------
obtaining judgment in any court, it is necessary to convert a sum due hereunder
in one currency into another currency, each Loan Party agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures in the relevant
jurisdiction the relevant Lender (or agent acting on its behalf) or the relevant
Administrative Agent could purchase the first currency with such other currency
for the first currency on the Business Day immediately preceding the day on
which final judgment is given.
(b) The obligations of each Loan Party in respect of any sum due
hereunder shall, notwithstanding any judgment in a currency (the "Judgment
--------
Currency") other than that in which such sum is denominated in accordance with
--------
this Agreement (the "Agreement Currency"), be discharged only to the extent
------------------
that, on the Business Day following receipt by any Lender (or agent acting on
its behalf) (the "Applicable Creditor") of any sum adjudged to be so due in the
-------------------
Judgment Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency with the
Judgment Currency; if the amount of the Agreement Currency so purchased is less
than the sum originally due to the Applicable Creditor in the Agreement
Currency, such Loan Party agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify the Applicable Creditor against such loss,
provided that if the amount of the Agreement Currency so purchased exceeds the
--------
sum originally due to the Applicable Creditor, the Applicable Creditor agrees to
remit such excess to such Loan Party. The obligations of each Loan Party and
Lender contained in this subsection shall survive the termination of this
Agreement and the payment of all amounts owing hereunder.
11.14 Acknowledgements. Each Borrower hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) none of either Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrowers arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and the
Borrowers, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrowers and the Lenders.
11.15 WAIVERS OF JURY TRIAL. THE BORROWERS, THE ADMINISTRATIVE
---------------------
AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
96
11.16 Confidentiality. Each Lender agrees to keep confidential all
---------------
non-public information provided to it by the Company or any of its Subsidiaries
pursuant to this Agreement or any other Loan Document and to use such
information solely for the purposes contemplated by this Agreement; provided
--------
that nothing herein shall prevent any Lender from disclosing any such
information (i) to either Administrative Agent or any other Lender, (ii) to any
Transferee which receives such information having been made aware of the
confidential nature thereof and which agrees to comply with the provisions of
this subsection, (iii) to its employees, directors, agents, attorneys,
accountants and other professional advisors who are advised of the confidential
nature of such information, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (vi) which has been publicly disclosed other
than in breach of this Agreement, or (vii) in connection with the exercise of
any remedy hereunder.
11.17 Conflicts. In case of any conflict or inconsistency between
---------
the provisions of this Agreement and the provisions of any other Loan Document,
the provisions of this Agreement shall control.
97
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXX XXXXX CORP.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Title: Vice President
XXXXXX XXXXX COMMAND COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK
AGENCY,
as US Administrative Agent and US$ Lender
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------------
Title: Director, CIBC Wood Gundy
Securities Corp. AS AGENT
BANK OF IRELAND GRAND CAYMAN
as a Lender
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Title: Account Manager
CREDIT LYONNAIS NEW YORK BRANCH
as a Lender
By: /s/ Xxxxxx Xxx
---------------------------------------------
Title: Vice President
FLEET NATIONAL BANK
as a Lender
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Title: Senior Vice President
THE FIRST NATIONAL BANK OF MARYLAND
as a Lender
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Title: Assistant Vice President
XXXXXX FINANCIAL
as a Lender
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Title: Assistant Vice President
STATE STREET BANK AND TRUST COMPANY
as a Lender
By: /s/ Xxxxxxxx X. Xxxx, Xx.
---------------------------------------------
Title: Vice President
THE BANK OF NEW YORK
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Title: Assistant Vice President
EXHIBIT A-1
TO CREDIT AGREEMENT
-------------------
[FORM OF US$ NOTE]
$_________ New York, New York
________ ___, 1996
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXX CORP., a New York
corporation (the "Borrower"), hereby unconditionally promises to pay to the
--------
order of ________________ (the "Lender") at the office of Canadian Imperial Bank
------
of Commerce, New York Agency, located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in lawful money of the United States of America and in immediately
available funds, on the Termination Date the principal amount of (a)
________________ US DOLLARS (US$__________), or, if less, (b) the aggregate
unpaid principal amount of all US$ Loans made by the US$ Lender to the Borrower
pursuant to subsection 2.1 of the Credit Agreement, as hereinafter defined. The
Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in subsections 4.5 of such Credit Agreement.
The holder of this US$ Note is authorized to endorse on the schedule
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each US$
Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period with respect thereto. Each
such endorsement shall constitute prima facie evidence of the accuracy of the
----- -----
information endorsed. The failure to make any such endorsement shall not affect
the obligations of the Borrower in respect of such US$ Loan.
This US$ Note (a) is one of the US$ Notes referred to in the Credit
Agreement dated as of August 13, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Canadian Borrower, the Lender, the other banks and financial institutions from
time to time parties thereto and Canadian Imperial Bank of Commerce, New York
Agency as US administrative agent and Canadian Imperial Bank of Commerce, as
Canadian administrative agent, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement. This US$ Note is secured and
guaranteed as provided in the Loan Documents. Reference is hereby made to the
Loan Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this US$ Note in
respect thereof.
2
In case an Event of Default shall occur and be continuing, all amounts
then remaining unpaid on this US$ Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest and all other
notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS US$ NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
XXXXXX XXXXX CORP.
By: ________________________________
Name: ______________________________
Title: _____________________________
US$ Note
--------
Schedule A
to US$ Note
-----------
LOANS, CONVERSIONS AND REPAYMENTS OF Base Rate LOANS
------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of Base Rate
Amount of Base Rate Converted to Amount of Principal of Loans Converted to Unpaid Principal Balance Notation
Date Loans Base Rate Loans Base Rate Loans Repaid Eurodollar Loans of Base Rate Loans Made By
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Schedule B
to US$ Note
-----------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
-----------------------------------------------------------------------------------------------------------------------------------
Interest Period and Amount of Principal Amount of Eurodollar
Amount of Amount Converted Eurodollar Rate with of Eurodollar Loans Loans Converted to
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid Base Rate Loans
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------
Unpaid Principal
Balance of Eurodollar Notation
Date Loans Made By
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
---------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
EXHIBIT A-2
TO CREDIT AGREEMENT
-------------------
[FORM OF C$ NOTE]
C$___________ New York, New York
_______________ ___, 1996
FOR VALUE RECEIVED, the undersigned, XXXXXX XXXXX COMMAND COMPANY, (the
"Canadian Borrower"), hereby unconditionally promises to pay to the order of
------------------
________________ (the "Lender") at the office of Canadian Imperial Bank of
------
Commerce, located at Xxxxxxxx Xxxxx Xxxx 0, Xxxxxxx, Xxxxxx, X0X 0X0, in lawful
money of Canada and in immediately available funds, on the Termination Date the
principal amount of (a) ________________ CANADIAN DOLLARS (C$__________), or, if
less, (b) the aggregate unpaid principal amount of all C$ Loans made by the
Lender to the Canadian Borrower pursuant to subsection 3.1 of the Credit
Agreement, as hereinafter defined. The Canadian Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof from
time to time outstanding at the rates and on the dates specified in subsections
4.5 of such Credit Agreement.
The holder of this C$ Note is authorized to endorse on the schedule annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date and amount of each C$ Prime Loan
made pursuant to the Credit Agreement and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof, each conversion of
all or a portion thereof to a Bankers Acceptance. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed. The
----- -----
failure to make any such endorsement shall not affect the obligations of the
Borrower in respect of such C$ Prime Loan.
This C$ Note (a) is one of the C$ Notes referred to in the Credit Agreement
dated as of August 13, 1996 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Xxxxxx Xxxxx Corp., the Canadian
----------------
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto and Canadian Imperial Bank of Canada, New York Agency, as
US administrative agent and Canadian Imperial Bank of Canada, as Canadian
administrative agent, (b) is subject to the provisions of the Credit Agreement
and (c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. This C$ Note is secured and guaranteed as
provided in the Loan Documents. Reference is hereby made to the Loan Documents
for a description of the properties and assets in which a security interest has
been granted, the nature and extent of the security and the guarantees, the
terms and conditions upon which the security interests and each guarantee were
granted and the rights of the holder of this C$ Note in respect thereof.
In case an Event of Default shall occur and be continuing, all amounts then
remianing unpaid on this C$ Note shall become, or may be be declared to be,
immediately due and payable, all as provided in the Credit Agreement.
The Canadian Borrower hereby waives presentment, demand, protest and all
other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS C$ NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
XXXXXX XXXXX COMMAND COMPANY
By:________________________________
Name:______________________________
Title:_____________________________
C$ Note
-------
Schedule A
to C$ Note
----------
LOANS, CONVERSIONS, AND REPAYMENTS OF C$ PRIME LOANS
------------------------------------------------------------------------------------------------------------------------------------
Amount Amount of C$ Prime
Amount of C$ Prime Converted to Amount of Principal of C$ Loans Converted to Unpaid Principal Balance Notation
Date Loans C$ Prime Loans Prime Loans Repaid Bankers' Acceptance of C$ Prime Loans Made By
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
====================================================================================================================================
Schedule B
to C$ Note
----------
REFUNDINGS, CONVERSIONS AND REIMBURSEMENTS OF BANKERS' ACCEPTANCES
------------------------------------------------------------------------------------------------------------------------------------
Amount of Amount of Bankers'
Purchased Amount Converted Amount of Bankers' Acceptances Unpaid Principal
Bankers' to Bankers' Acceptances Converted to C$ Balance of Bankers' Notation
Date Acceptances Acceptances Reimbursed Prime Loans Acceptances Made By
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
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====================================================================================================================================
EXHIBIT D TO
CREDIT AGREEMENT
----------------
================================================================================
US GLOBAL GUARANTEE AND SECURITY AGREEMENT
made by
XXXXXX XXXXX CORP.,
certain of its Affiliates and Subsidiaries
and
its Shareholders
in favor of
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY,
as US Administrative Agent
Dated as of August 13, 1996
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. DEFINED TERMS.................................................... 2
1.1 Definitions 2
1.2 Other Definitional Provisions...................................... 5
SECTION 2. GUARANTEE........................................................ 6
2.1 Guarantee 6
2.2 Right of Contribution.............................................. 7
2.3 No Subrogation..................................................... 7
2.4 Amendments, etc. with respect to the Guarantor Obligations......... 7
2.5 Guarantee Absolute and Unconditional............................... 8
2.6 Reinstatement...................................................... 9
2.7 Payments 9
SECTION 3. GRANT OF SECURITY INTEREST....................................... 9
3.1 Security Interests from Guarantors................................. 9
3.2 Security Interests from Shareholders............................... 10
SECTION 4. REPRESENTATIONS AND WARRANTIES OF GUARANTORS..................... 10
4.1 Representations.................................................... 10
4.2 Title; No Other Liens.............................................. 12
4.3 Perfected Liens.................................................... 12
4.4 Chief Executive Office............................................. 12
4.5 Inventory and Equipment............................................ 12
4.6 Farm Products...................................................... 12
4.7 Pledged Securities................................................. 12
4.8 Receivables........................................................ 13
4.9 Intellectual Property.............................................. 13
4.10 Vehicles 13
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS................... 13
5.1 Shareholders' Representations...................................... 13
5.2 Title; No Other Liens.............................................. 14
5.3 Perfected Liens.................................................... 14
5.4 Residence.......................................................... 15
5.5 Pledged Securities................................................. 15
SECTION 6. COVENANTS OF GUARANTORS.......................................... 15
6.1 Covenants in Credit Agreement...................................... 15
6.2 Delivery of Instruments and Chattel Paper.......................... 15
6.3 Maintenance of Insurance........................................... 16
6.4 Maintenance of Perfected Security Interest; Further Documentation.. 16
i
Page
----
6.6 Notices............................................................ 17
6.7 Pledged Securities................................................. 17
6.8 Receivables........................................................ 18
6.9 Intellectual Property.............................................. 19
SECTION 7. COVENANTS OF SHAREHOLDERS........................................ 19
7.1 Covenants in Credit Agreement...................................... 20
7.2 Maintenance of Perfected Security Interest; Further Documentation.. 20
7.3 Changes in Locations, Name, etc.................................... 20
7.4 Notices............................................................ 20
7.5 Pledged Securities................................................. 21
SECTION 8. REMEDIAL PROVISIONS.............................................. 22
8.1 Certain Matters Relating to Receivables............................ 22
8.2 Communications with Obligors; Guarantors Remain Liable............. 22
8.3 Pledged Stock...................................................... 23
8.4 Proceeds to be Turned Over To US Administrative Agent.............. 24
8.5 Application of Proceeds............................................ 24
8.6 Code and Other Remedies............................................ 24
8.7 Registration Rights................................................ 25
8.8 Waiver; Deficiency................................................. 27
SECTION 9. THE US ADMINISTRATIVE AGENT...................................... 27
9.1 US Administrative Agent's Appointment as Attorney-in-Fact, etc..... 27
9.2 Duty of Administrative Agent....................................... 29
9.3 Execution of Financing Statements.................................. 29
9.4 Authority of Administrative Agent.................................. 29
SECTION 10. MISCELLANEOUS................................................... 29
10.1 Amendments in Writing............................................. 29
10.2 Notices........................................................... 30
10.3 No Waiver by Course of Conduct; Cumulative Remedies............... 30
10.4 Enforcement Expenses; Indemnification............................. 30
10.5 Successors and Assigns............................................ 31
10.6 Set-Off........................................................... 31
10.7 Counterparts...................................................... 31
10.8 Severability...................................................... 31
10.9 Section Headings.................................................. 31
10.10 Integration...................................................... 31
10.11 GOVERNING LAW.................................................... 32
10.12 Submission To Jurisdiction; Waivers.............................. 32
10.13 Acknowledgements................................................. 32
10.14 WAIVER OF JURY TRIAL............................................. 33
10.15 Additional Grantors; Pledged Stock............................... 33
10.16 Releases......................................................... 33
ii
Page
----
SCHEDULES:
Schedule 1 Notice Addresses of Grantors
Schedule 2 Description of Pledged Securities
Schedule 3 Filings and Other Actions Required to Perfect Security Interests
Schedule 4 Location of Jurisdiction of Organization and Chief Executive
Office
Schedule 5 Location of Inventory and Equipment
Schedule 6 Copyrights, Patents and Trademarks
Schedule 7 Vehicles
Schedule 8 Existing Prior Liens
iii
FORM OF
US GLOBAL GUARANTEE AND SECURITY AGREEMENT
US GLOBAL GUARANTEE AND SECURITY AGREEMENT, dated as of August 13,
1996, made by each of the signatories hereto (together with any other entity
that may become a party hereto as provided herein, the "Grantors"), in favor of
--------
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as US administrative agent
(in such capacity, the "US Administrative Agent") for the banks and other
-----------------------
financial institutions (the "Lenders") from time to time parties to the Credit
-------
Agreement, dated as of August 13, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among XXXXXX XXXXX CORP., a
----------------
New York corporation (the "Company"), XXXXXX XXXXX COMMAND COMPANY, a company
-------
organized under the laws of the Province of Nova Scotia (the"Canadian Borrower",
-----------------
and together with the Company, the "Borrowers"), the Lenders, the US
---------
Administrative Agent and the Canadian Administrative Agent named therein
(together with the US Administrative Agent, the "Administrative Agents").
---------------------
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrowers upon the terms and subject
to the conditions set forth therein;
WHEREAS, each Borrower is a member of an affiliated group of companies
that includes each other Guarantor or entities owned by such Grantor;
WHEREAS, each Borrower and each such Grantor will derive substantial
direct and indirect benefit from the making of the extensions of credit under
the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective extensions of credit to the Borrowers under the Credit
Agreement that the Grantors shall have executed and delivered this Agreement to
the US Administrative Agent for the benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agents and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the
Borrowers thereunder, each Grantor hereby agrees with the US Administrative
Agent, for the benefit of the Lenders, as follows:
2
SECTION 1. DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined
-----------
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms which are defined in the Uniform
Commercial Code in effect in the State of New York on the date hereof are used
herein as so defined: Accounts, Chattel Paper, Documents, Equipment, Farm
Products, Instruments and Inventory.
(b) The following terms shall have the
following meanings:
"Agreement": this US Global Guarantee and Security Agreement, as the
---------
same may be amended, supplemented or otherwise modified from time to time.
"Canadian Borrower Obligations": the collective reference to the
-----------------------------
unpaid principal of and interest on the C$ Loans and all other obligations
and liabilities of the Canadian Borrower (including, without limitation,
interest accruing at the then applicable rate provided in the Credit
Agreement after the maturity of the C$ Loans and interest accruing at the
then applicable rate provided in the Credit Agreement 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) to either Administrative Agent or any Canadian Lender
(or, in the case of any Interest Rate Protection Agreement referred to
below, 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, the Credit Agreement,
this Agreement, the other Loan Documents, or any Interest Rate Protection
Agreement entered into by the Canadian Borrower with any Lender (or any
Affiliate of any Lender) or any other document made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise with respect to the foregoing (including, without limitation, all
fees and disbursements of counsel to either Administrative Agent or to the
Lenders that are required to be paid by the Canadian Borrower pursuant to
the terms of any of the foregoing agreements).
"Code": the Uniform Commercial Code as from time to time in effect in
----
the State of New York.
"Collateral": collectively, the Guarantor Collateral and the
----------
Shareholder Collateral.
"Collateral Account": any collateral account established by the US
------------------
Administrative Agent as provided in Section 8.1 or 8.4.
3
"Company Obligations": the collective reference to the unpaid
-------------------
principal of and interest on the US$ Loans and all other obligations and
liabilities of the Company (including, without limitation, interest
accruing at the then applicable rate provided in the Credit Agreement after
the maturity of the US$ Loans and interest accruing at the then applicable
rate provided in the Credit Agreement after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding) to either
Administrative Agent or any US$ Lender (or, in the case of any Interest
Rate Protection Agreement referred to below, 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, the Credit Agreement, this Agreement (including, without
limitation, pursuant to the guarantee by the Company of the Canadian
Borrower Obligations provided for in Section 2 hereof), the other Loan
Documents, or any Interest Rate Protection Agreement entered into by the
Borrower with any Lender (or any Affiliate of any Lender) or any other
document made, delivered or given in connection therewith, in each case
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation,
all fees and disbursements of counsel to either Administrative Agent or to
the Lenders that are required to be paid by the Company pursuant to the
terms of any of the foregoing agreements).
"Copyrights": (i) all copyrights owned by a Guarantor (including,
----------
without limitation, those listed in Schedule 6), all registration and
----------
recordings thereof, and all applications in connection therewith,
including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, and (ii) all renewals
thereof.
"General Intangibles": all "general intangibles" as such term is
-------------------
defined in Section 9-106 of the Uniform Commercial Code in effect in the
State of New York on the date hereof.
"General Partners": (i) PLC Command I, Inc., a Pennsylvania
----------------
corporation, in its capacity as the general partner of PLC Command I, L.P.,
and (ii) PLC Command II, Inc., a Pennsylvania corporation, in its capacity
as the general partner of PLC Command II, L.P.
"Guarantor Collateral": as defined in subsection 3.1.
--------------------
"Guarantor Obligations": with respect to any Guarantor, the
---------------------
collective reference to (i) (x) with respect to the Company, the Canadian
Borrower Obligations and (y) with respect to any other Guarantor, the
Company Obligations and (ii) all obligations and liabilities of such
Guarantor which may arise under or in connection with this Agreement or any
other Loan Document to which such Guarantor is a party, in each case
whether on account of guarantee obligations, reimbursement
4
obligations, fees, indemnities, costs, expenses or otherwise relating
thereto (including, without limitation, all fees and disbursements of
counsel to either Administrative Agent or to the Lenders that are required
to be paid by such Guarantor pursuant to the terms of this Agreement or any
other Loan Document).
"Guarantors": the collective reference to the Company, each General
----------
Partner, the Limited Partnerships and each other Domestic Subsidiary of the
Company.
"Intellectual Property": the collective reference to the Copyrights,
---------------------
the Patents, and the Trademarks.
"Intercompany Note": any promissory note evidencing loans made by any
-----------------
Guarantor to the Company or any of its Domestic Subsidiaries.
"Interest Rate Protection Agreement": any interest rate protection
----------------------------------
agreement, interest rate future, interest rate option, interest rate cap or
collar or other interest rate hedge arrangement, to or under which the
Company or any of its Subsidiaries is a party or a beneficiary.
"Issuers": the collective reference to the Persons identified on
-------
Schedule 2 as the issuers of the Pledged Securities.
----------
"Limited Partnerships": (i) PLC Command I, L.P., a Pennsylvania
--------------------
limited partnership, and (ii) PLC Command II, L.P., a Pennsylvania limited
partnership.
"Obligations": (i) in the case of each Guarantor other than the
-----------
Company, its Guarantor Obligations, (ii) in the case of the Company, its
Guarantor Obligations and the Company Obligations and (iii) in the case of
each Shareholder, the Company Obligations.
"Patents": (i) all letters patent of a Guarantor issued by the United
-------
States or any other country, all reissues and extensions thereof and all
goodwill associated therewith, including, without limitation, any of the
foregoing referred to in Schedule 6, and (ii) all applications for letters
----------
patent of a Guarantor issued by the United States or any other country and
all divisions, continuations and continuations-in-part thereof, including,
without limitation, any of the foregoing referred to in Schedule 6.
----------
"Pledged Notes": all promissory notes listed on Schedule 2, all
------------- ----------
Intercompany Notes at any time issued to any Guarantor and all other
promissory notes issued to or held by any Guarantor (other than promissory
notes issued in connection with extensions of trade credit by any Guarantor
in the ordinary course of business).
"Pledged Securities": the collective reference to (i) the Pledged
------------------
Stock, (ii) the Pledged Notes and (iii) any and all partnership interests
(including any and all general partnership interests) any Grantor may hold
in either Borrower or any of its
5
Domestic Subsidiaries, as set forth in Schedule 2 attached hereto
----------
including, without limitation, all of such Grantor's rights to properties,
assets, and partnership interests under their respective Partnership
Agreements, including, without limitation, any liquidating distributions,
in respect of such partnership interest.
"Pledged Stock": with respect to each Grantor, the shares of Capital
-------------
Stock of such Grantor listed on Schedule 2, together with any other shares,
----------
stock certificates, options or rights of any nature whatsoever in respect
of the Capital Stock of any Issuer that may be issued or granted to, or
held by, such Grantor while this Agreement is in effect.
"Proceeds": all "proceeds" as such term is defined in Section 9-
--------
306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof.
"Receivable": any right to payment for goods sold or leased or for
----------
services rendered, whether or not such right is evidenced by an Instrument
or Chattel Paper and whether or not it has been earned by performance
(including, without limitation, any Account).
"Securities Act": the Securities Act of 1933, as amended.
--------------
"Shareholder Collateral": as defined in Section 3.2.
----------------------
"Shareholders": each shareholder of the Company listed on Schedule
------------ --------
2(c).
----
"Trademarks": (i) all trademarks, trade names, corporate names,
----------
company names, business names, fictitious business names, trade styles,
service marks, logos and other source of business identifiers, and all
goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any State
thereof or any other country or any political subdivision thereof, or
otherwise, including, without limitation, any of the foregoing referred to
in Schedule 6, and (ii) all renewals thereof.
----------
"Vehicles": all cars, trucks, trailers, construction and earth moving
--------
equipment and other vehicles owned by a Guarantor (with purchase price in
excess of US $50,000) and covered by a certificate of title law of any
state and, in any event including, without limitation, the vehicles listed
on Schedule 7 and all tires and other
----------
appurtenances to any of the foregoing.
1.2 Other Definitional Provisions. (a) The words "hereof,"
-----------------------------
"herein," "hereto," and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section and Schedule references are
to this Agreement unless otherwise specified.
6
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(c) Where the context requires, terms relating to the Collateral or
any part thereof, when used in relation to a Grantor, shall refer to such
Grantor's Collateral or the relevant part thereof.
SECTION 2. GUARANTEE
2.1 Guarantee. (a)(i) The Company hereby, unconditionally and
---------
irrevocably, guarantees to the US Administrative Agent, for the benefit of the
C$ Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Canadian Borrower when
due (whether at the stated maturity, by acceleration or otherwise) of the
Canadian Borrower Obligations, and (ii) each of the Guarantors other than the
Company hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the US Administrative Agent, for the benefit of the Lenders and
their respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Company when due (whether at the stated
maturity, by acceleration or otherwise) of the Company Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor (other than the
Company) hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under applicable federal
and state laws relating to the insolvency of debtors (after giving effect to the
right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Company Obligations or the
Canadian Borrower Obligations, as the case may be, may at any time and from time
to time exceed the amount of the liability of such Guarantor hereunder without
impairing the guarantee contained in this Section 2 or affecting the rights and
remedies of the US Administrative Agent or any Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Company Obligations and the Canadian Borrower
Obligations, and the obligations of each Guarantor under the guarantee contained
in this Section 2 shall have been satisfied by payment in full, no Bankers'
Acceptance shall be outstanding, and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
either Borrower may be free from any Company Obligations or Canadian Borrower
Obligations, as the case may be.
(e) No payment made by either Borrower, any of the Guarantors, any
other guarantor or any other Person or received or collected by the US
Administrative Agent or any Lender from either Borrower, any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding or
any set-off or appropriation or application
7
at any time or from time to time in reduction of or in payment of the Company
Obligations or the Canadian Borrower Obligations, as the case may be, shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Company Obligations or the
Canadian Borrower Obligations or any payment received or collected from such
Guarantor in respect of the Company Obligations or Canadian Borrower
Obligations, as the case may be), remain liable for the Company Obligations or
the Canadian Borrower Obligations, as the case may be, up to the maximum
liability of such Guarantor hereunder until the Company Obligations and the
Canadian Borrower Obligations are paid in full, no Bankers' Acceptance shall be
outstanding, and the Commitments are terminated.
2.2 Right of Contribution. Each Guarantor (other than the Company)
---------------------
hereby agrees that to the extent that a Guarantor (other than the Company) shall
have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from and against
any other Guarantor hereunder which has not paid its proportionate share of such
payment. Each Guarantor's right of contribution shall be subject to the terms
and conditions of Section 2.3. The provisions of this Section 2.2 shall in no
respect limit the obligations and liabilities of any Guarantor to the US
Administrative Agent and the US$ Lenders or C$ Lenders, as the case may be, and
each Guarantor shall remain liable to the US Administrative Agent and the US$
Lenders or C$ Lenders, as the case may be, for the full amount guaranteed by
such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any
--------------
Guarantor hereunder or any set-off or application of funds of any Guarantor by
the US Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the US Administrative Agent or any US$ Lender
or C$ Lender, as the case may be, against the Company or the Canadian Borrower,
as the case may be, or any other Guarantor or any collateral security or
guarantee or right of offset held by the US Administrative Agent or any US$
Lender or C$ Lenders, as the case may be, for the payment of the Company
Obligations or the Canadian Borrower Obligations, as the case may be, nor shall
any Guarantor seek or be entitled to seek any contribution or reimbursement from
the relevant Borrower or any other Guarantor in respect of payments made by such
Guarantor hereunder, until all amounts owing to the US Administrative Agent and
the US$ Lenders or the C$ Lenders, as the case may be, by the relevant Borrower
on account of the Company Obligations or the Canadian Borrower Obligations, as
the case may be, are paid in full, no Bankers' Acceptance shall be outstanding
and the Commitments are terminated. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the
Company Obligations or the Canadian Borrower Obligations, as the case may be,
shall not have been paid in full, such amount shall be held by such Guarantor in
trust for the US Administrative Agent and the US$ Lenders or the C$ Lenders, as
the case may be, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the US
Administrative Agent in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the US Administrative Agent, if required), to be applied
against the Company Obligations, or the Canadian
8
Borrower Obligations, as the case may be, whether matured or unmatured, in such
order as the US Administrative Agent may determine.
2.4 Amendments, etc. with respect to the Guarantor Obligations. Each
----------------------------------------------------------
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Company
Obligations or the Canadian Borrower Obligations, as the case may be, made by
the US Administrative Agent or any Lender may be rescinded by the US
Administrative Agent or such Lender and any of the Company Obligations or the
Canadian Borrower Obligations, as the case may be, may be continued, and the
Company Obligations, the Canadian Borrower Obligations or the liability of any
other Person 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 the US Administrative Agent or
any Lender, and the Credit Agreement and the other Loan Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the US
Administrative Agent (or the Required Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the US Administrative Agent or any Lender for the
payment of the Company Obligations or the Canadian Borrower Obligations, as the
case may be, may be sold, exchanged, waived, surrendered or released. Neither
the US Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Company Obligations, the Canadian Borrower Obligations or for the guarantee
contained in this Section 2 or any property subject thereto, except as provided
in Section 9.2.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any
------------------------------------
and all notice of the creation, renewal, extension or accrual of any of the
Company Obligations or the Canadian Borrower Obligations, as the case may be,
and notice of or proof of reliance by the US Administrative Agent or any Lender
upon the guarantee contained in this Section 2 or acceptance of the guarantee
contained in this Section 2; the Company Obligations, the Canadian Borrower
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 2; and all dealings between either
Borrower and any of the Guarantors, on the one hand, and the US Administrative
Agent and the Lenders, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon the guarantee
contained in this Section 2. Each Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon
either Borrower or any of the Guarantors with respect to the Company Obligations
or the Canadian Borrower Obligations, as the case may be. Each Guarantor
understands and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the Credit Agreement or
any other Loan Document, any of the Company Obligations or the Canadian Borrower
Obligations, as the case may be, or any other collateral security therefor or
guarantee or right of offset with respect thereto
9
at any time or from time to time held by the US Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
either Borrower against the US Administrative Agent or any Lender, or (c) any
other circumstance whatsoever (with or without notice to or knowledge of either
Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of either Borrower for the Company
Obligations or the Canadian Borrower Obligations, as the case may be, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or in
any other instance. When making any demand hereunder or otherwise pursuing its
rights and remedies hereunder against any Guarantor, the US Administrative Agent
or any Lender may, but shall be under no obligation to, make a similar demand on
or otherwise pursue such rights and remedies as it may have against either
Borrower, any other Guarantor or any other Person or against any collateral
security or guarantee for the Company Obligations or the Canadian Borrower
Obligations, as the case may be, or any right of offset with respect thereto,
and any failure by the US Administrative Agent or any Lender to make any such
demand, to pursue such other rights or remedies or to collect any payments from
either Borrower, any other Guarantor or any other Person or to realize upon any
such collateral security or guarantee or to exercise any such right of offset,
or any release of either Borrower, any other Guarantor or any other Person or
any such collateral security, guarantee or right of offset, shall not relieve
any Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the US Administrative Agent or any Lender against any
Guarantor. For the purposes hereof "demand" shall include the commencement and
continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 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 Company Obligations or the Canadian
Borrower Obligations is rescinded or must otherwise be restored or returned by
the US Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of either Borrower or any Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, either Borrower or any
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments
--------
hereunder will be paid to the US Administrative Agent without set-off or
counterclaim in Dollars at the office of the US Administrative Agent located at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 3. GRANT OF SECURITY INTEREST
3.1 Security Interests from Guarantors. Each Guarantor hereby grants
----------------------------------
to the US Administrative Agent, for the benefit of the Lenders, a security
interest in, all of the following property now owned or at any time hereafter
acquired by such Guarantor or in which such Guarantor now has or at any time in
the future may acquire any right, title or
10
interest (collectively, the "Guarantor Collateral"), as collateral security for
--------------------
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of such Guarantor's Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment;
(e) all General Intangibles;
(f) all Instruments;
(g) all Intellectual Property;
(h) all Inventory;
(i) all Pledged Securities;
(j) all Vehicles; and
(k) all books and records pertaining to the Guarantor Collateral; and
(l) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing and all collateral security and guarantees
given by any Person with respect to any of the foregoing (except to the
extent the creation of such Lien would cause a breach or termination of
such collateral security or guarantees under the terms thereof and of any
applicable law).
3.2 Security Interests from Shareholders. Each Shareholder
-------------------------------------
hereby assigns and transfers to the US Administrative Agent, for the ratable
benefit of the US$ Lenders, a security interest in, all of the following
property now owned or at any time hereafter acquired by such Shareholder or in
which such Shareholder now has or at any time in the future may acquire any
right, title or interest (collectively, the "Shareholder Collateral"), as
----------------------
collateral security for the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of such
Shareholder's Obligations:
(a) all Pledged Securities; and
(b) to the extent not otherwise included, all Proceeds and products
of any and all of the foregoing.
11
SECTION 4. REPRESENTATIONS AND WARRANTIES OF GUARANTORS
To induce the Administrative Agents and the Lenders to enter into the
Credit Agreement and to induce the Lenders to make their respective extensions
of credit to the applicable Borrower thereunder, each Guarantor hereby
represents and warrants severally, not jointly, to each Administrative Agent and
each Lender that:
4.1 Representations. (a) General Partners' Representations. (i)
--------------- ---------------------------------
Each General Partner (w) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (x) 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, (y) 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, except where the failure to qualify could not
reasonably be expected to have a Material Adverse Effect and (z) 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.
(ii) Each General Partner 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 has taken all necessary corporate action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is
required in connection with the execution, delivery, performance, validity
or enforceability of the Loan Documents to which the General Partner is a
party, except for any filings required to perfect the Liens created hereby.
This Agreement has been, and each other Loan Document to which it is a
party will be, duly executed and delivered on behalf of such General
Partner. 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 such General Partner enforceable against such
General Partner 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.
(iii) Each General Partner has the right, subject to the terms and
provisions of its Partnership Agreement, the Credit Agreement and the other
Loan Documents (x) to vote its Pledged Securities and (y) to pledge and
grant a security interest in all or any of its Pledged Securities.
(iv) The execution, delivery and performance of the Loan Documents to
which each General Partner is a party will not violate any Requirement of
Law or material Contractual Obligation of such General Partner and will not
result in, or
12
require, the creation or imposition of any Lien on any of its properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation
(other than pursuant to this Agreement or the Loan Documents).
(v) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of
each General Partner, threatened by or against such General Partner or
against any of its properties or revenues (x) with respect to any of the
Loan Documents or any of the transactions contemplated hereby or thereby,
or (y) which could reasonably be expected to have a Material Adverse
Effect.
4.2 Title; No Other Liens. Except for the security interest granted
---------------------
to the US Administrative Agent for the benefit of the Lenders pursuant to this
Agreement and the other Liens permitted to exist on the Collateral by the Credit
Agreement, such Guarantor owns each item of the Guarantor Collateral, free and
clear of any and all Liens or claims of others. No financing statement or other
public notice with respect to all or any part of the Collateral is on file or of
record in any public office, except such as have been filed in favor of the US
Administrative Agent, for the benefit of the Lenders, pursuant to this Agreement
or as are permitted by the Credit Agreement.
4.3 Perfected Liens. The security interests granted pursuant to this
---------------
Agreement (a) (i) upon giving of appropriate notices pursuant to Article 8 of
the Code in the form of Annexes 2 and 3 to this Agreement with respect to each
--------- -
partnership interest and (ii) upon completion of the filings and other actions
specified on Schedule 3 (which, in the case of all filings and other documents
----------
referred to on said Schedule, have been delivered to the US Administrative Agent
in completed and duly executed form) will constitute valid perfected security
interests in all of the Guarantor Collateral in favor of the US Administrative
Agent, for the benefit of the Lenders, as collateral security for such
Guarantor's Obligations, enforceable in accordance with the terms hereof against
all creditors of such Guarantor and any Persons purporting to purchase any
Collateral from such Guarantor and (b) will be prior to all other Liens on the
Guarantor Collateral in existence on the date hereof except for Liens permitted
by the Credit Agreement which have priority over the Liens on the Collateral by
operation of law.
4.4 Chief Executive Office. On the date hereof, such Guarantor's
----------------------
jurisdiction of organization and the location of such Guarantor's chief
executive office or, if such Guarantor has only one place of business, such
place of business are specified on Schedule 4.
----------
4.5 Inventory and Equipment. On the date hereof, the Inventory and
-----------------------
the Equipment (other than mobile goods) of the Guarantors are kept at the
locations listed on Schedule 5.
----------
4.6 Farm Products. None of the Collateral constitutes, or is the
-------------
Proceeds of, Farm Products.
13
4.7 Pledged Securities. (a) The Pledged Securities of each Issuer
------------------
pledged by such Guarantor constitutes (i) all the issued and outstanding shares
of all classes of the Capital Stock of each domestic Issuer owned by such
Guarantor and (ii) 65% of the issued and outstanding shares of the voting class
of Capital Stock and all of the non-voting class of Capital Stock of each
foreign Issuer owned by such Guarantor.
(b) All the shares of the Pledged Stock have been duly and validly
issued and are fully paid and nonassessable.
(c) Such Guarantor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Securities pledged by it hereunder,
free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement or any of the
Loan Documents.
(d) None of the Pledged Securities are evidenced by any certificates
or other instruments which have not been delivered to the US Administrative
Agent, and none of the Partnership Agreements make any provision for the
issuance of any such certificates or instruments.
(e) None of the Pledged Securities are subject to any options to
purchase or similar rights, except as provided in the Corporate Buy/Sell
Agreement.
(f) There are no restrictions, other than those contained in the
Partnership Agreements, the Credit Agreement, the Corporate Buy/Sell Agreement
and the other Loan Documents, upon any of the voting rights associated with, or
the transfer of, any of the Pledged Securities.
4.8 Receivables. (a) No amount payable to such Guarantor under or
-----------
in connection with any Receivable is evidenced by any Instrument or Chattel
Paper which has not been delivered to the US Administrative Agent.
(b) The amounts represented by such Guarantor to the Lenders from
time to time as owing to such Guarantor in respect of the Receivables will at
such times be accurate in all material respects.
4.9 Intellectual Property. Schedule 6 lists all Intellectual
--------------------- ----------
Property owned by such Guarantor in its own name on the date hereof.
4.10 Vehicles. Schedule 7 is a complete and correct list of all
-------- ----------
Vehicles owned by such Guarantor on the date hereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
To induce the US Administrative Agent and the US$ Lenders to
enter into the Credit Agreement and to induce the US$ Lenders to make their
respective extensions of
14
credit to the Company thereunder, each Shareholder hereby represents and
warrants severally, not jointly, to the US Administrative Agent and each US$
Lender that:
5.1 Shareholders' Representations.
-----------------------------
(a) Each Shareholder signing this Agreement in his or her capacity as
a custodian represents and warrants that he or she has the legal right,
power and authority to pledge such shares as to which he or she is a
custodian (the "Custodial Shares") and that he or she has the power to
----------------
execute and deliver all written instruments, covenants or agreements of any
duration which are necessary to carry out his or her powers to pledge as a
custodian.
(b) Such Shareholder is, or at the time when pledged hereunder will
be, the legal, record and beneficial owner of, except that the beneficial
owners of the Custodial Shares are the beneficiaries of such custodial
arrangements, and has good and marketable title to, all Pledged Securities
pledged by it hereunder.
(c) Such Shareholder has the full personal power, authority and legal
right to pledge all the Pledged Securities pursuant to this Agreement, and
this Agreement has been duly authorized, executed and delivered by such
Shareholder and constitutes a legal, valid and binding obligation of such
Shareholder enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, reorganization,
moratorium or similar laws relating to or affecting creditors' rights
generally (whether considered in a proceeding in law or at equity) and an
implied covenant of good faith and fair dealing.
(d) Except to the extent already obtained, no consent of any other
party (including, without limitation, any creditor of such Shareholder) and
no consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
Governmental Authority is required to be obtained by such Shareholder in
connection with the execution, delivery or performance of this Agreement.
(e) The execution, delivery and performance of this Agreement will not
violate any Requirement of Law or material Contractual Obligation to which
such Shareholder is a party or which purports to be binding upon such
Shareholder or upon any of its assets and will not result in the creation
or imposition of any Lien on any of the assets of such Shareholder except
as contemplated by this Agreement.
5.2 Title; No Other Liens. Except for the security interest granted
---------------------
to the US Administrative Agent for the benefit of the US$ Lenders pursuant to
this Agreement and the other Liens permitted to exist on the Collateral by the
Credit Agreement, such Shareholder owns each item of the Shareholder Collateral
free and clear of any and all Liens or claims of others.
5.3 Perfected Liens. The security interests granted pursuant to this
---------------
Agreement upon completion of the actions specified on Schedule 3 will constitute
----------
valid,
15
perfected security interests in the Shareholder Collateral of such Shareholder,
in favor of the US Administrative Agent, for the benefit of the Lenders, as
collateral security for such Shareholder's Obligations, enforceable in
accordance with the terms hereof against all creditors of such Shareholder and
any Persons purporting to purchase any Shareholder Collateral from such
Shareholder and are prior to all other Liens on such Shareholder Collateral in
existence on the date hereof except for Liens permitted by the Credit Agreement
which have priority over the Liens on such Shareholder Collateral by operation
of law.
5.4 Pledged Securities. (a) The Pledged Securities of the Company
------------------
pledged by such Shareholder constitutes all the issued and outstanding shares of
all classes of the Capital Stock of the Company owned by such Shareholder.
(b) All the shares of the Pledged Stock of such Shareholder have
been duly and validly issued and are fully paid and nonassessable.
(c) The Pledged Securities pledged by such Shareholder hereunder,
are free of any and all Liens or options in favor of, or claims of, any other
Person, except the security interest created by this Agreement or any of the
Loan Documents.
(d) None of the Pledged Securities of such Shareholder are evidenced
by any certificates or other instruments which have not been delivered to the US
Administrative Agent.
(e) None of the Pledged Securities of such Shareholder are subject
to any options to purchase or similar rights, except as provided in the
Corporate Buy/Sell Agreement.
(f) There are no restrictions, other than those contained in the
Credit Agreement, the Corporate Buy/Sell Agreement and the other Loan Documents,
upon any of the voting rights associated with, or the transfer of, any of the
Pledged Securities.
SECTION 6. COVENANTS OF GUARANTORS
Each Guarantor covenants and agrees with each Administrative Agent and
the Lenders that, from and after the date of this Agreement until the
Obligations shall have been paid in full, no Bankers' Acceptance shall be
outstanding and the Commitments shall have terminated:
6.1 Covenants in Credit Agreement. Such Guarantor shall take, or
-----------------------------
shall refrain from taking, as the case may be, each action that is necessary to
be taken or not taken, as the case may be, so that no Default or Event of
Default is caused by the failure to take such action or to refrain from taking
such action by such Guarantor or any of its Subsidiaries.
16
6.2 Delivery of Instruments and Chattel Paper. If any amount payable
-----------------------------------------
under or in connection with any of the Collateral shall be or become evidenced
by any Instrument (other than checks acquired in the ordinary course of
business) or Chattel Paper, such Instrument or Chattel Paper shall be
immediately delivered to the US Administrative Agent, duly indorsed in a manner
reasonably satisfactory to the US Administrative Agent, to be held as Collateral
pursuant to this Agreement.
6.3 Maintenance of Insurance. (a) Such Guarantor will maintain,
------------------------
with financially sound and reputable companies, insurance policies (i) insuring
the Inventory, Equipment and Vehicles against loss by fire, explosion, theft and
such other casualties as may be reasonably satisfactory to the US Administrative
Agent and (ii) insuring such Guarantor, the US Administrative Agent and the
Lenders against liability for personal injury and insuring against property
damage relating to such Inventory, Equipment and Vehicles, such policies to be
in such form and amounts and having such coverage as may be reasonably
satisfactory to the US Administrative Agent.
(b) All insurance maintained by the Guarantors shall (i) name the US
Administrative Agent as insured party or loss payee, (ii) if reasonably
requested by the US Administrative Agent, include a breach of warranty clause
and (iii) be reasonably satisfactory in all other respects to the US
Administrative Agent.
(c) The Borrowers shall deliver to the US Administrative Agent such
reports of a reputable insurance broker with respect to such insurance as the US
Administrative Agent may from time to time reasonably request.
6.4 Maintenance of Perfected Security Interest; Further
---------------------------------------------------
Documentation. (a) Such Guarantor shall not take any action inconsistent with
maintaining the security interest created by this Agreement as a perfected
security interest and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Such Guarantor will furnish to the US Administrative Agent and
the Lenders from time to time statements and schedules further identifying and
describing the Collateral and such other reports in connection with the
Collateral as the US Administrative Agent may reasonably request, all in
reasonable detail.
(c) At any time and from time to time, upon the written request of
the US Administrative Agent, and at the sole expense of such Guarantor, such
Guarantor will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the US Administrative Agent may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted, including,
without limitation, the filing of any financing or continuation statements under
the Uniform Commercial Code (or other similar laws) in effect in any
jurisdiction with respect to the security interests created hereby.
6.5 Changes in Locations, Name, etc. Such Guarantor will not, except
--------------------------------
upon 15 days' prior written notice to the US Administrative Agent:
17
(i) permit any material amount of the Inventory or Equipment to be
kept at a location other than those listed on Schedule 5, as the same shall
----------
be supplemented from time to time, and those with respect to which
financing statements and other documents reasonably requested by the US
Administrative Agent to maintain the validity, perfection and priority of
the security interests provided for herein shall have been filed;
(ii) change the location of its chief executive office or, if such
Guarantor has only one place of business, such sole place of business from
that referred to in Section 4.4; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed by the US Administrative Agent in
connection with this Agreement would become misleading.
Such Guarantor will deliver to the US Administrative Agent (a) all additional
executed financing statements and other documents reasonably requested by the US
Administrative Agent to maintain the validity, perfection and priority of the
security interests provided for herein and (b) together with each set of
financial statements delivered pursuant to subsection 7.1(a) and (b) of the
Credit Agreement, a written supplement to Schedule 5 showing any additional
----------
location at which Inventory or Equipment shall be kept.
6.6 Notices. Such Guarantor will advise the US Administrative Agent
-------
and the Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Collateral which would
materially adversely affect the ability of the US Administrative Agent to
exercise any of its remedies hereunder; and
(b) the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereby.
6.7 Pledged Securities. (a) If such Guarantor shall become entitled
------------------
to receive or shall receive any certificate, instrument or other document
(including, without limitation, any certificate representing a stock dividend or
a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights in respect of the Capital Stock of any Issuer, whether in addition to,
in substitution of, as a conversion of, or in exchange for, any shares of the
Pledged Securities, such Guarantor shall accept the same as the agent of the US
Administrative Agent and the Lenders, hold the same in trust for the US
Administrative Agent and deliver the same forthwith to the US Administrative
Agent in the exact form received, duly indorsed by such Guarantor to the US
Administrative Agent, if required, together with an undated stock or bond power
covering such certificate duly executed in blank by such Guarantor and with, if
the US Administrative Agent so requests, signature
18
guaranteed, to be held by the US Administrative Agent, subject to the terms
hereof, as additional collateral security for the Obligations. Any sums paid
upon or in respect of the Pledged Securities upon the liquidation or dissolution
of any Issuer shall be paid over to the US Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the Pledged Securities
or any property shall be distributed upon or with respect to the Pledged
Securities pursuant to the recapitalization or reclassification of the capital
of any Issuer or pursuant to the reorganization thereof, the property so
distributed shall, unless otherwise subject to a perfected security interest in
favor of the US Administrative Agent, be delivered to the US Administrative
Agent to be held by it hereunder as additional collateral security for the
Obligations. If any sums of money or property so paid or distributed in respect
of the Pledged Securities shall be received by such Guarantor, such Guarantor
shall, until such money or property is paid or delivered to the US
Administrative Agent, hold such money or property in trust for the Lenders,
segregated from other funds of such Guarantor, as additional collateral security
for the Obligations.
(b) Without the prior written consent of the US Administrative Agent,
such Guarantor will not (i) vote to enable, or take any other action to permit,
any Issuer to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any Issuer
(except the issuance of options pursuant to the Company's Nonqualified Stock
Option Plan and any option exercises thereunder), (ii) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Pledged Securities or Proceeds thereof (except pursuant to a transaction
expressly permitted by the Credit Agreement or the Corporate Buy/Sell
Agreement), (iii) create, incur or permit to exist any Lien or option in favor
of, or any claim of any Person with respect to, any of the Pledged Securities or
Proceeds thereof, or any interest therein, except for the security interests
created by this Agreement, any of the Loan Documents or the Corporate Buy/Sell
Agreement or (iv) enter into any agreement or undertaking restricting the right
or ability of such Guarantor or the US Administrative Agent to sell, assign or
transfer any of the Pledged Securities or Proceeds thereof (except pursuant to
any Loan Document or the Corporate Buy/Sell Agreement).
(c) In the case of each Grantor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this Agreement relating to the
Pledged Securities issued by it and will comply with such terms insofar as such
terms are applicable to it, (ii) it will notify the US Administrative Agent
promptly in writing of the occurrence of any of the events described in Section
6.7(a) with respect to the Pledged Securities issued by it and (iii) the terms
of Sections 8.3(c) and 8.7 shall apply to it, mutatis mutandis, with respect to
------- --------
all actions that may be required of it pursuant to Section 8.3(c) or 8.7 with
respect to the Pledged Securities issued by it.
6.8 Receivables. (a) Other than in the ordinary course of business
-----------
consistent with its past practice, such Guarantor will not (i) grant any
extension of the time of payment of any Receivable, (ii) compromise or settle
any Receivable for less than the full amount thereof, (iii) release, wholly or
partially, any Person liable for the payment of
19
any Receivable, (iv) allow any credit or discount whatsoever on any Receivable
or (v) amend, supplement or modify any Receivable in any manner that could
adversely affect the value thereof.
(b) Such Guarantor will deliver to the US Administrative Agent a copy
of each material demand, notice or document received by it that questions or
calls into doubt the validity or enforceability of more than 5% of the aggregate
amount of the then outstanding Receivables.
6.9 Intellectual Property. (a) Such Guarantor is the true and
---------------------
lawful owner of all rights to the Patents, Trademarks and Copyrights and such
Patents, Trademarks and Copyrights constitute all of the United States Patents,
Trademarks and Copyrights and applications for United States Patents, Trademarks
and Copyrights that such Guarantor now owns. The Guarantor has no knowledge of
any third party claim that any aspect of such Guarantor's present business
operations or business operations contemplated as of the date hereof infringes
or will infringe any patent, trademark or copyright.
(b) Such Guarantor agrees, promptly upon learning thereof, to furnish
the US Administrative Agent in writing all pertinent information available to
such Guarantor with respect to any infringement, contributing infringement or
active inducement to infringe in any material Patent or Trademark or to any
claim that practice of any material Patent or Trademark violates any property
right of a third party, or with respect to any misappropriation of any material
Patent or Trademark. Such Guarantor agrees, absent direction from the US
Administrative Agent to the contrary, to diligently prosecute any Person
infringing or misappropriating any Patent or Trademark.
(c) At its own expense, such Guarantor shall make timely payment of
all post-issuance fees required to maintain in force rights under each Patent
absent prior written consent of the US Administrative Agent.
(d) At its own expense, such Guarantor shall diligently prosecute all
applications for United States Patents or Trademarks and shall not abandon any
such application prior to exhaustion of all administrative judicial remedies,
absent written consent of the US Administrative Agent.
(e) Prior to the later to occur of (i) 30 days of acquisition of a
United States Patent or Trademark, or of filing of an application for a United
States Patent or Trademark or (ii) five Business Days after the last day of the
fiscal quarter in which such acquisition or filing occurs, such Guarantor shall
report such acquisition or filing to the US Administrative Agent, and upon
request of the US Administrative Agent, such Guarantor shall execute and deliver
any and all agreements, instruments, documents and papers as the US
Administrative Agent may request to evidence the US Administrative Agent's and
the Lender's security interest in any Patent or Trademark.
SECTION 7. COVENANTS OF SHAREHOLDERS
20
Each Shareholder covenants and agrees with the US Administrative Agent
and the US$ Lenders that, from and after the date of this Agreement until the
Obligations shall have been paid in full and the Commitments shall have
terminated:
7.1 Maintenance of Perfected Security Interest; Further
---------------------------------------------------
Documentation. (a) Such Shareholder shall not take any action inconsistent with
-------------
maintaining the security interest created by this Agreement as a perfected
security interest and shall defend such security interest against the claims and
demands of all Persons whomsoever.
(b) Such Shareholder shall furnish to the US Administrative Agent and
the US$ Lenders from time to time statements and schedules further identifying
and describing the Shareholder Collateral and such other reports in connection
with the Shareholder Collateral as the US Administrative Agent may reasonably
request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of
the US Administrative Agent, and at the sole expense of such Shareholder, such
Shareholder will promptly and duly execute and deliver such further instruments
and documents and take such further actions as the US Administrative Agent may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and of the rights and powers herein granted.
7.2 Notices. Such Shareholder will advise the US Administrative
-------
Agent and the US$ Lenders promptly, in reasonable detail, of:
(a) any Lien (other than security interests created hereby or Liens
permitted under the Credit Agreement) on any of the Shareholder Collateral which
would materially adversely affect the ability of the US Administrative Agent to
exercise any of its remedies hereunder; and
(b) the occurrence of any other event which could reasonably be
expected to have a material adverse effect on the aggregate value of the
Shareholder Collateral or on the security interests created hereby.
7.3 Pledged Securities. (a) If such Shareholder shall become
------------------
entitled to receive or shall receive any certificate, instrument or other
document (including, without limitation, any certificate representing a stock
dividend or a distribution in connection with any reclassification, increase or
reduction of capital or any certificate issued in connection with any
reorganization), option or rights in respect of the Capital Stock of the
Company, whether in addition to, in substitution of, as a conversion of, or in
exchange for, any shares of the Pledged Securities, such Shareholder shall
accept the same as the agent of the US Administrative Agent and the US$ Lenders,
hold the same in trust for the US Administrative Agent and deliver the same
forthwith to the US Administrative Agent in the exact form received, duly
indorsed by such Shareholder to the US Administrative Agent, if required,
together with an undated stock power covering such certificate duly executed in
blank by such Shareholder and with, if the US Administrative Agent so requests,
signature guaranteed, to be held by the US Administrative Agent, subject to the
terms hereof, as
21
additional collateral security for the Obligations. Any sums paid upon or in
respect of the Pledged Securities upon the liquidation or dissolution of the
Company shall be paid over to the US Administrative Agent to be held by it
hereunder as additional collateral security for the Obligations, and in case any
distribution of capital shall be made on or in respect of the Pledged Securities
or any property shall be distributed upon or with respect to the Pledged
Securities pursuant to the recapitalization or reclassification of the capital
of the Company or pursuant to the reorganization thereof, the property so
distributed shall, unless otherwise subject to a perfected security interest in
favor of the US Administrative Agent, be delivered to the US Administrative
Agent to be held by it hereunder as additional collateral security for the
Obligations. If any sums of money or property so paid or distributed in respect
of the Pledged Securities shall be received by such Shareholder, such
Shareholder shall, until such money or property is paid or delivered to the US
Administrative Agent, hold such money or property in trust for the Lenders,
segregated from other funds of such Shareholder, as additional collateral
security for the Obligations.
(b) Without the prior written consent of the US Administrative Agent,
such Shareholder will not (i) vote to enable, or take any other action to
permit, the Company to issue any stock or other equity securities of any nature
or to issue any other securities convertible into or granting the right to
purchase or exchange for any stock or other equity securities of any nature of
the Company (except the issuance of options pursuant to the Company's
Nonqualified Stock Option Plan and any option exercises thereunder), (ii) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Pledged Securities or Proceeds thereof (except pursuant to a
transaction expressly permitted by the Credit Agreement or the Corporate
Buy/Sell Agreement), (iii) create, incur or permit to exist any Lien or option
in favor of, or any claim of any Person with respect to, any of the Pledged
Securities or Proceeds thereof, or any interest therein, except for the security
interests created by this Agreement, any of the Loan Documents or the Corporate
Buy/Sell Agreement or (iv) enter into any agreement or undertaking restricting
the right or ability of such Shareholder or the US Administrative Agent to sell,
assign or transfer any of the Pledged Securities or Proceeds thereof (except
pursuant to any Loan Document or the Corporate Buy/Sell Agreement).
SECTION 8. REMEDIAL PROVISIONS
8.1 Certain Matters Relating to Receivables. (a) The US
---------------------------------------
Administrative Agent shall have the right, at its own cost and expense, to make
test verifications of the Receivables in any manner and through any medium that
it reasonably considers advisable, and each Guarantor shall furnish all such
assistance and information as the US Administrative Agent may reasonably require
in connection with such test verifications. At any time after an Event of
Default which is continuing, upon the US Administrative Agent's request and at
the expense of the relevant Guarantor, such Guarantor shall cause independent
public accountants or others satisfactory to the US Administrative Agent to
furnish to the US Administrative Agent reports showing reconciliations, aging
and test verifications of, and trial balances for, the Receivables.
22
(b) If required by the US Administrative Agent at any time during the
continuance of an Event of Default, any payments of Receivables, when collected
by any Guarantor, (i) shall be forthwith (and, in any event, within two Business
Days) deposited by such Guarantor in the exact form received, duly indorsed by
such Guarantor to the US Administrative Agent if required, in a Collateral
Account maintained under the sole dominion and control of the US Administrative
Agent, subject to withdrawal by the US Administrative Agent for the account of
the Lenders only as provided in Section 8.5, and (ii) until so turned over,
shall be held by such Guarantor in trust for the US Administrative Agent and the
Lenders, segregated from other funds of such Guarantor. Each such deposit of
Proceeds of Receivables shall be accompanied by a report identifying in
reasonable detail the nature and source of the payments included in the deposit.
(c) At the US Administrative Agent's request, each Guarantor shall
make available to the US Administrative Agent all original and other documents
evidencing, and relating to, the agreements and transactions which gave rise to
the Receivables, including, without limitation, all original invoices.
8.2 Communications with Obligors; Guarantors Remain Liable. (a)
------------------------------------------------------
The US Administrative Agent in its own name or in the name of others may at any
time during the continuance of an Event of Default communicate with obligors
under the Receivables to verify with them to the US Administrative Agent's
satisfaction the existence, amount and terms of any Receivables.
(b) Upon the request of the US Administrative Agent at any time
during the continuance of an Event of Default, each Guarantor shall notify
obligors on the Receivables that the Receivables have been assigned to the US
Administrative Agent for the benefit of the Lenders and that payments in respect
thereof shall be made directly to the US Administrative Agent.
(c) Anything herein to the contrary notwithstanding, each Guarantor
shall remain liable under each agreement relating to a Receivable to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto. Neither the US Administrative Agent nor any Lender shall have any
obligation or liability under any agreement relating to a Receivable by reason
of or arising out of this Agreement or the receipt by the US Administrative
Agent or any Lender of any payment relating thereto, nor shall the US
Administrative Agent or any Lender be obligated in any manner to perform any of
the obligations of any Guarantor under or pursuant to any Receivable (or any
agreement giving rise thereto), to make any payment, to make any inquiry as to
the nature or the sufficiency of any payment received by it or as to the
sufficiency of any performance by any party thereunder, to present or file any
claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled
at any time or times.
8.3 Pledged Stock. (a) Unless an Event of Default shall have
-------------
occurred and be continuing and the US Administrative Agent shall have given
notice to the relevant
23
Grantor of the US Administrative Agent's intent to exercise its corresponding
rights pursuant to Section 8.3(b), each Grantor shall be permitted to receive
all cash dividends and other distributions paid in respect of the Pledged Stock
and all payments made in respect of the Pledged Notes, and to exercise all
voting and corporate or partnership rights with respect to the Pledged
Securities; provided, however, that no vote shall be cast or corporate or
-------- -------
partnership right exercised or other action taken which, in the US
Administrative Agent's reasonable judgment, would impair the Collateral or which
would be inconsistent with or result in any violation of any provision of the
Credit Agreement, this Agreement or any other Loan Document.
(b) If an Event of Default shall occur and be continuing and the US
Administrative Agent shall give notice of its intent to exercise such rights to
the relevant Grantor or Grantors, (i) the US Administrative Agent shall have the
right to receive any and all cash dividends, payments or other Proceeds paid in
respect of the Pledged Securities and make application thereof to the
Obligations in such order as the US Administrative Agent may determine, and (ii)
any or all of the Pledged Securities shall be registered in the name of the US
Administrative Agent or its nominee, and the US Administrative Agent or its
nominee may thereafter exercise (x) all voting, corporate and other rights
pertaining to such Pledged Securities at any meeting of shareholders of the
relevant Issuer or Issuers or otherwise and (y) any and all rights of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such Pledged Securities as if it were the absolute owner thereof
(including, without limitation, the right to exchange at its discretion any and
all of the Pledged Securities upon the merger, consolidation, reorganization,
recapitalization or other fundamental change in the corporate structure of any
Issuer, or upon the exercise by any Grantor or the US Administrative Agent of
any right, privilege or option pertaining to such Pledged Securities, and in
connection therewith, the right to deposit and deliver any and all of the
Pledged Securities with any committee, depositary, transfer agent, registrar or
other designated agency upon such terms and conditions as the US Administrative
Agent may determine), all without liability except to account for property
actually received by it, but the US Administrative Agent shall have no duty to
any Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
(c) Each Grantor hereby authorizes and instructs each Issuer of any
Pledged Securities pledged by such Grantor hereunder to (i) comply with any
instruction received by it from the US Administrative Agent in writing that (x)
states that an Event of Default has occurred and is continuing and (y) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from such Grantor, and each Grantor agrees that each Issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Securities directly to the US Administrative Agent.
8.4 Proceeds to be Turned Over To US Administrative Agent. In
-----------------------------------------------------
addition to the rights of the US Administrative Agent and the Lenders specified
in Section 8.1 with respect to payments of Receivables, if an Event of Default
shall occur and be continuing, all Proceeds received by any Grantor consisting
of cash, checks and other near-cash items
24
shall be held by such Grantor in trust for the US Administrative Agent and the
Lenders, segregated from other funds of such Grantor, and shall, forthwith upon
receipt by such Grantor, be turned over to the US Administrative Agent in the
exact form received by such Grantor (duly indorsed by such Grantor to the US
Administrative Agent, if required). All Proceeds received by the US
Administrative Agent hereunder shall be held by the US Administrative Agent in a
Collateral Account maintained under its sole dominion and control. All Proceeds
while held by the US Administrative Agent in a Collateral Account (or by such
Grantor in trust for the US Administrative Agent and the Lenders) shall continue
to be held as collateral security for all the Obligations and shall not
constitute payment thereof until applied as provided in Section 8.5
8.5 Application of Proceeds. At such intervals as may be agreed upon
-----------------------
by the Borrowers and the US Administrative Agent, or, if an Event of Default
shall have occurred and be continuing, at any time at the US Administrative
Agent's election, the US Administrative Agent may apply all or any part of
Proceeds held in any Collateral Account in payment of the Obligations in such
order as the US Administrative Agent may elect (provided that all such payments
in respect of principal, interest, fees and other amounts then due and payable
hereunder shall in each case be applied pro rata among those Lenders to which
--------
such types of amounts are payable), and any part of such funds which the US
Administrative Agent elects not so to apply and deems not required as collateral
security for the Obligations shall be paid over from time to time by the US
Administrative Agent to the Borrowers or to whomsoever may be lawfully entitled
to receive the same. Any balance of such Proceeds remaining after the
Obligations shall have been paid in full, no Bankers' Acceptances shall be
outstanding and the Commitments shall have terminated shall be paid over to the
Borrowers or to whomsoever may be lawfully entitled to receive the same.
8.6 Code and Other Remedies. If an Event of Default shall occur and
-----------------------
be continuing, the US Administrative Agent, on behalf of the Lenders, may
exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, all rights and remedies of a secured party under
the Code or any other applicable law. Without limiting the generality of the
foregoing, the US Administrative Agent, without demand of performance or other
demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon any Grantor or any other
Person (all and each of which demands, defenses, advertisements and notices are
hereby waived), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any
of the foregoing), in one or more parcels at public or private sale or sales, at
any exchange, broker's board or office of the US Administrative Agent or any
Lender or elsewhere upon such terms and conditions as it may deem commercially
reasonable and at such prices as it may for cash or on credit or for future
delivery without assumption of any credit risk. The US Administrative Agent or
any Lender shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any
25
right or equity of redemption in any Grantor, which right or equity is hereby
waived or released. Each Grantor further agrees, at the US Administrative
Agent's request, to assemble the Collateral and make it available to the US
Administrative Agent at places which the US Administrative Agent shall
reasonably select, whether at such Grantor's premises or elsewhere. The US
Administrative Agent shall apply the net proceeds of any action taken by it
pursuant to this Section 6.6, after deducting all reasonable costs and expenses
of every kind incurred in connection therewith or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the US Administrative Agent and the Lenders hereunder, including,
without limitation, reasonable attorneys' fees and disbursements, to the payment
in whole or in part of the Obligations, in such order as the US Administrative
Agent may elect (provided that such application shall in each case be applied
--------
pro rata among those Lenders to which such types of amounts are payable), and
--------
only after such application and after the payment by the US Administrative Agent
of any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Code, need the US Administrative Agent
account for the surplus, if any, to any Grantor. To the extent permitted by
applicable law, each Grantor waives all claims, damages and demands it may
acquire against the US Administrative Agent or any Lender arising out of the
exercise by them of any rights hereunder. If any notice of a proposed sale or
other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or other
disposition.
8.7 Registration Rights. (a) If the Administrative Agent shall
-------------------
determine to exercise its right to sell any or all of the Pledged Stock pursuant
to Section 8.6, and if in the opinion of the Administrative Agent it is
necessary or advisable to have the Pledged Stock, or that portion thereof to be
sold, registered under the provisions of the Securities Act, upon written
request, the relevant Grantor will use its best efforts to cause the Issuer
thereof to (i) execute and deliver, and cause the directors and officers of such
Issuer to execute and deliver, all such instruments and documents, and do or
cause to be done all such other acts as may be, in the opinion of the
Administrative Agent, necessary or advisable to register the Pledged Stock, or
that portion thereof to be sold, under the provisions of the Securities Act,
(ii) use its best efforts to cause the registration statement relating thereto
to become effective and to remain effective for a period of one year from the
date of the first public offering of the Pledged Stock, or that portion thereof
to be sold, and (iii) make all amendments thereto and/or to the related
prospectus which, in the opinion of the Administrative Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto; provided, that the Grantor shall not be required to effect such
--------
registration under the Securities Act or with applicable state securities laws
if the Grantor delivers to the US Administrative Agent an opinion of counsel
(who shall be satisfactory to the US Administrative Agent) satisfactory to the
US Administrative Agent that such sale may be made pursuant to an exemption from
the Securities Act and such state securities laws, and provided further, that
----------------
the US Administrative Agent shall furnish to such Grantor such information
regarding the US Administrative Agent and the Lenders as such Grantor may
request in writing and as shall be required in connection with any such
registration, qualification or compliance. Each Grantor agrees to use its best
efforts to
26
cause the such Issuer to comply with the provisions of the securities or "Blue
Sky" laws of any and all jurisdictions which the US Administrative Agent shall
designate and, except where the US Administrative Agent does not deem it
necessary or desirable to do so under the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto, to
make available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) Each Grantor recognizes that the Administrative Agent may be
unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to agree, among other things, to acquire such securities for their own account
for investment and not with a view to the distribution or resale thereof. Each
Grantor acknowledges and agrees that the mere fact that any such private sale
may result in prices and other terms less favorable than if such sale were a
public sale and agrees that the mere fact that such sale is a private sale shall
not be deemed to have made such sale one not made in a commercially reasonable
manner, provided that such Pledged Stock is sold at a price that the US
--------
Administrative Agent has determined in good faith, is reasonable under the
circumstances. The US Administrative Agent shall be under no obligation to
delay a sale of any of the Pledged Stock for the period of time necessary to
permit the Issuer thereof to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if such Issuer
would agree to do so.
(c) Each Grantor agrees to use its best efforts to do or cause to be
done all such other acts as may be necessary to make such sale or sales of all
or any portion of the Pledged Stock pledged by it pursuant to this Section 8.7
valid and binding and in compliance with any and all other applicable
Requirements of Law. Each Grantor further agrees that a breach of any of the
covenants contained in this Section 8.7 will cause irreparable injury to the US
Administrative Agent and the Lenders, that the US Administrative Agent and the
Lenders have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this Section 8.7 shall be
specifically enforceable against such Guarantor, and such Guarantor hereby
waives and agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of Default has
occurred and is continuing under the Credit Agreement.
8.8 Waiver; Deficiency. Each Guarantor waives and agrees not to
------------------
assert any rights or privileges which it may acquire under Section 9-112 of the
Code. Each Guarantor shall remain liable for any deficiency if the proceeds of
any sale or other disposition of the Collateral are insufficient to pay its
Obligations and the fees and disbursements of any attorneys employed by the US
Administrative Agent or any Lender to collect such deficiency.
27
SECTION 9. THE US ADMINISTRATIVE AGENT
9.1 US Administrative Agent's Appointment as Attorney-in-Fact, etc.
--------------------------------------------------------------
(a) Each Grantor hereby irrevocably constitutes and appoints the US
Administrative Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Grantor and in the name of
such Grantor or in its own name, for the purpose of carrying out the terms of
this Agreement, to take any and all appropriate action and to execute any and
all documents and instruments which may be reasonably necessary or desirable to
accomplish the purposes of this Agreement, and, without limiting the generality
of the foregoing, each Grantor hereby gives the US Administrative Agent the
power and right, on behalf of such Grantor, without notice to or assent by such
Grantor, to do any or all of the following:
(i) in the name of such Guarantor or its own name, or otherwise, take
possession of and indorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Receivable or with respect to any other Collateral and file any claim or
take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the US Administrative Agent for the purpose
of collecting any and all such moneys due under any Receivable or with
respect to any other Collateral whenever payable;
(ii) in the case of any Copyright, Patent or Trademark, execute and
deliver any and all agreements, instruments, documents and papers as the US
Administrative Agent may request to evidence the US Administrative Agent's
and the Lenders' security interest in such Copyright, Patent or Trademark
and the goodwill and general intangibles of such Guarantor relating thereto
or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral, effect any repairs or any insurance
called for by the terms of this Agreement and pay all or any part of the
premiums therefor and the costs thereof;
(iv) execute, in connection with any sale provided for in Section 8.6
or 8.7, any indorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral; and
(v) (1) direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the US Administrative Agent or as the US
Administrative Agent shall direct; (2) ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and other amounts
due or to become due at any time in respect of or arising out of any
Collateral; (3) sign and indorse any invoices, freight or express bills,
bills of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications, notices and other documents in connection with
any of the Collateral; (4) commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof
28
and to enforce any other right in respect of any Collateral; (5) defend any
suit, action or proceeding brought against such Grantor with respect to any
Collateral; (6) settle, compromise or adjust any such suit, action or
proceeding and, in connection therewith, to give such discharges or
releases as the US Administrative Agent may deem appropriate; (7) assign
any Copyright, Patent or Trademark (along with the goodwill of the business
to which any such Copyright, Patent or Trademark pertains), throughout the
world for such term or terms, on such conditions, and in such manner, as
the US Administrative Agent shall in its sole discretion determine; and (8)
generally, sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though
the US Administrative Agent were the absolute owner thereof for all
purposes, and do, at the US Administrative Agent's option and such
Grantor's expense, at any time, or from time to time, all acts and things
which the US Administrative Agent deems necessary to protect, preserve or
realize upon the Collateral and the US Administrative Agent's and the
Lenders' security interests therein and to effect the intent of this
Agreement, all as fully and effectively as such Grantor might do.
Anything in this Section 9.1(a) to the contrary notwithstanding, the US
Administrative Agent agrees that it will not exercise any rights under the power
of attorney provided for in this Section 9.1(a) unless an Event of Default shall
have occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its
agreements contained herein, the US Administrative Agent, at its option, but
without any obligation so to do, may perform or comply, or otherwise cause
performance or compliance, with such agreement.
(c) The expenses of the US Administrative Agent incurred in
connection with actions undertaken as provided in this Section 9.1, together
with interest thereon at a rate per annum equal to the rate per annum at which
interest would then be payable on past due Base Rate Loans in the case of
expenses paid in US$ or C$ Prime Loans, in the case of expenses paid in C$ under
the Credit Agreement, from the date of payment by the US Administrative Agent to
the date reimbursed by the relevant Grantor, shall be payable by such Grantor to
the US Administrative Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers, authorizations
and agencies contained in this Agreement are coupled with an interest and are
irrevocable until this Agreement is terminated and the security interests
created hereby are released.
9.2 Duty of Administrative Agent. The US Administrative Agent's sole
----------------------------
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the US Administrative Agent deals
with similar property for its own account. Neither the US Administrative Agent,
any Lender nor any of their respective officers, directors, employees or agents
shall be liable for failure to demand, collect or
29
realize upon any of the Collateral or for any delay in doing so or shall be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of any Grantor or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof. The powers
conferred on the US Administrative Agent and the Lenders hereunder are solely to
protect the US Administrative Agent's and the Lenders' interests in the
Collateral and shall not impose any duty upon the US Administrative Agent or any
Lender to exercise any such powers. The US Administrative Agent and the Lenders
shall be accountable only for amounts that they actually receive as a result of
the exercise of such powers, and neither they nor any of their officers,
directors, employees or agents shall be responsible to any Grantor for any act
or failure to act hereunder, except for their own gross negligence or willful
misconduct.
9.3 Execution of Financing Statements. Pursuant to Section 9-402 of
---------------------------------
the Code and any other applicable law, each Grantor authorizes the US
Administrative Agent to file or record financing statements and other filing or
recording documents or instruments with respect to the Collateral without the
signature of such Grantor in such form and in such offices as the US
Administrative Agent reasonably determines appropriate to perfect the security
interests of the US Administrative Agent under this Agreement. A photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement or other filing or recording document or instrument for filing or
recording in any jurisdiction.
9.4 Authority of Administrative Agent. Each Grantor acknowledges
---------------------------------
that the rights and responsibilities of the US Administrative Agent under this
Agreement with respect to any action taken by the US Administrative Agent or the
exercise or non-exercise by the US Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the US
Administrative Agent and the Lenders, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the US Administrative Agent and the Grantors, the US
Administrative Agent shall be conclusively presumed to be acting as agent for
the Lenders with full and valid authority so to act or refrain from acting as
provided herein, and no Grantor shall be under any obligation, or entitlement,
to make any inquiry respecting such authority.
SECTION 10. MISCELLANEOUS
10.1 Amendments in Writing. None of the terms or provisions of this
---------------------
Agreement may be waived, amended, supplemented or otherwise modified except by a
written instrument executed by each affected Grantor and the US Administrative
Agent, provided that any provision of this Agreement imposing obligations on any
--------
Grantor may be waived by the US Administrative Agent in a written instrument
executed by the US Administrative Agent.
30
10.2 Notices. All notices, requests and demands to or upon the US
-------
Administrative Agent or any Grantor hereunder shall be effected in the manner
provided for in subsection 11.2 of the Credit Agreement; provided that any such
--------
notice, request or demand to or upon any Grantor shall be addressed to such
Grantor at its notice address set forth on Schedule 1 as such Schedule may be
----------
revised from time to time.
10.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither
---------------------------------------------------
the US Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 10.1), delay, indulgence, omission or otherwise
be deemed to have waived any right or remedy hereunder or to have acquiesced in
any Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the US Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the US Administrative Agent or any Lender of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the US Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
10.4 Enforcement Expenses; Indemnification. (a) Each Guarantor
-------------------------------------
agrees to pay or reimburse each Lender and the US Administrative Agent for all
its costs and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 or otherwise enforcing or preserving any rights
under this Agreement and the other Loan Documents to which such Guarantor is a
party, including, without limitation, the fees and disbursements of counsel to
each Lender and of counsel to the US Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the US Administrative
Agent and the Lenders harmless from, any and all liabilities with respect to, or
resulting from any delay (except for any delay caused by the US Administrative
Agent or any Lender) in paying, any and all stamp, excise, sales or other taxes
which may be payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions contemplated by this
Agreement.
(c) Each Guarantor agrees to pay, and to save the US Administrative
Agent and the Lenders harmless from, any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement and performance of this Agreement (collectively, the
"indemnified liabilities") to the extent the Borrower would be required to do so
-----------------------
pursuant to subsection 11.5 of the Credit Agreement.
(d) The agreements in this Section 10.4 shall survive repayment of
the Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
31
10.5 Successors and Assigns. This Agreement shall be binding upon
----------------------
the successors and assigns of each Grantor and shall inure to the benefit of the
US Administrative Agent and the Lenders and their successors and assigns;
provided that no Grantor may assign, transfer or delegate any of its rights or
--------
obligations under this Agreement without the prior written consent of the US
Administrative Agent.
10.6 Set-Off. In addition to any rights and remedies of the Lenders
-------
provided by law, each Lender shall have the right, without prior notice to
either Borrower, any such notice being expressly waived by such Borrower to the
extent permitted by applicable law, upon any amount becoming due and payable by
such Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by such Lender or any branch or agency thereof to or
for the credit or the account of such Borrower. Each Lender agrees promptly to
notify the relevant Borrower and the relevant Administrative Agent after any
such set-off and application made by such Lender, provided that the failure to
--------
give such notice shall not affect the validity of such set-off and application.
10.7 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
10.8 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.
10.9 Section Headings. The Section headings used in this Agreement
----------------
are for convenience of reference only and are not to affect the construction
hereof or be taken into consideration in the interpretation hereof.
10.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the Grantors, the US Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the US Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents. In the event of any conflict between
the provisions of this Agreement and the Credit Agreement, the provisions of the
Credit Agreement shall be controlling.
10.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
32
10.12 Submission To Jurisdiction; Waivers. Each Grantor hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgement in
respect thereof, to the non-exclusive general jurisdiction of the Courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such
Grantor at its address referred to in Section 10.2 or at such other address
of which the US Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
10.13 Acknowledgements. Each Grantor hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a
party;
(b) neither the US Administrative Agent nor any Lender has any
fiduciary relationship with or duty to any Grantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Grantors, on the one hand, and the US
Administrative Agent and Lenders, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Grantors and the Lenders.
33
10.14 WAIVER OF JURY TRIAL. EACH GRANTOR 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.
10.15 Additional Grantors; Pledged Stock. (a) Each Domestic
----------------------------------
Subsidiary of the Company that is required to become a party to this Agreement
pursuant to subsection 7.17 of the Credit Agreement shall become a Grantor for
all purposes of this Agreement upon execution and delivery by such Domestic
Subsidiary of an Assumption Agreement in the form of Annex 1A hereto.
(b) Subsection 7.16 of the Credit Agreement also require that the
Company or any Domestic Subsidiary of the Company which holds the Capital Stock
of any new Subsidiary (including a foreign Subsidiary) of the Company created or
acquired after the Closing Date, pledge 100% of the issued and outstanding
Capital Stock of such new Subsidiary (provided, that in no event shall Capital
--------
Stock representing more than 65% of the voting power of the Capital Stock of any
such new Subsidiary which is not a Domestic Subsidiary be so pledged) to the US
Administrative Agent for the benefit of the Lenders by executing and delivering
a Supplement to this Agreement in the form of Annex 1B hereto. From and after
the date any Grantor executes and delivers a Supplement to this Agreement, the
pledged stock set forth on Schedule 1 to such Supplement shall be deemed to be
Pledged Stock for all purposes under this Agreement and the issuer of such
pledged stock shall be deemed to be an Issuer for all purposes under this
Agreement.
10.16 Releases. (a) At such time as the Loans and the other
--------
Obligations shall have been paid in full and the Commitments have been
terminated and no Bankers' Acceptances shall be outstanding, the Collateral
shall be released from the Liens created hereby, and this Agreement and all
obligations (other than those expressly stated to survive such termination) of
the US Administrative Agent and each Grantor hereunder shall terminate, all
without delivery of any instrument or performance of any act by any party, and
all rights to the Collateral shall revert to the Grantors. At the request and
sole expense of the Company following any such termination, the US
Administrative Agent shall promptly, assign, transfer and deliver to such
Grantor any Collateral held by the US Administrative Agent hereunder, and
execute and deliver to such Grantor such documents as such Grantor shall
reasonably request to evidence such termination.
(b) If any of the Collateral shall be sold, transferred or otherwise
disposed of by any Grantor in a transaction permitted by the Credit Agreement,
then the US Administrative Agent, at the request of such Grantor and sole
expense of the Company, shall execute and deliver to such Grantor all releases
or other documents reasonably necessary or desirable for the release of the
Liens created hereby on such Collateral. At the request and sole expense of the
Company, a Grantor shall be released from its obligations hereunder in the event
that all the Capital Stock of such Grantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Company shall have delivered to the US Administrative Agent,
--------
at least ten Business Days prior to the date of the proposed release, a written
request for release identifying the
34
relevant Grantor and the terms of the sale or other disposition in reasonable
detail, including the price thereof and any expenses in connection therewith,
together with a certification by the Company stating that such transaction is in
compliance with the Credit Agreement and the other Loan Documents.
Notwithstanding anything contained herein to the contrary, the
recourse of each Shareholder hereunder shall be limited solely to the Pledged
Securities of such Shareholder. No Shareholder shall have any monetary
liability hereunder (other than any monetary liability which arises as a result
of any realization of the securities by the US Administrative Agent) of any kind
or nature whatsoever nor shall any assets of any Shareholder (except for the
Pledged Securities) be subject to any claim by the US Administrative Agent.
35
IN WITNESS WHEREOF, each of the undersigned has caused this US Global
Guarantee and Security Agreement to be duly executed and delivered as of the
date first above written.
XXXXXX XXXXX CORP.
By:_____________________________________________
Title:
PLC COMMAND I, INC.
By:_____________________________________________
Title:
PLC COMMAND II, INC.
By:_____________________________________________
Title:
PLC COMMAND I, L.P.
By PLC Command I, Inc., as its general partner
By:_____________________________________________
Title:
PLC COMMAND II, L.P.
By PLC Command II, Inc., as its general partner
By:_______________________________________________
Title:
__________________________________________________
Xxx X. Xxxxxx, Xx.
__________________________________________________
Xxxxxxx Xxx
Individually and as Custodian for Xxxxxxx Xxx,
Xxxxxx Xxx, Xxxxxxx Xxx, Xxxxxxx Xxx, Xxxxxxxxxxx
Xxx and Xxxxx Xxx
__________________________________________________
Xxxxxxx Xxx, Xx.
__________________________________________________
Xxx X. Xxxxxx, Xx.
Individually and as Custodian for Xxxx Xxxxxx,
Xxxxxxxxx Xxxxxx and Xxxxx Xxxxxx
__________________________________________________
J. Xxxxx Xxxxxx
Individually and as Custodian for Xxxxxxx Xxxxxx
and Xxxx Xxxxx Xxxxxx, Xx.
__________________________________________________
Xxxxxxx X. Xxxxxx
Individually and as Custodian for Xxxxxxx X.
Xxxxxx
__________________________________________________
Xxxx X. Xxxxxx
__________________________________________________
Xxxxxxxx X. Xxxxxx
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the US Global
Guarantee and Security Agreement dated as of August ___, 1996 (the "Agreement"),
---------
made by the Grantors parties thereto for the benefit of Canadian Imperial Bank
of Commerce, New York Agency as US Administrative Agent. The undersigned agrees
for the benefit of the US Administrative Agent and the Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the US Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 6.7(a) of
the Agreement.
3. The terms of Sections 8.3(a) and 8.7 of the Agreement shall apply to
it, mutatis mutandis, with respect to all actions that may be required of it
------- --------
pursuant to Section 6.3(a) or 6.7 of the Agreement.
By:_________________________________
Title:____________________________
Address for Notices:
____________________________________
____________________________________
Fax:________________________________
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the US Global
Guarantee and Security Agreement dated as of August , 1996 (the
------
"Agreement"), made by the Grantors parties thereto for the benefit of Canadian
-----------
Imperial Bank of Commerce, New York Agency as US Administrative Agent. The
undersigned agrees for the benefit of the US Administrative Agent and the
Lenders as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the US Administrative Agent promptly in
writing of the occurrence of any of the events described in Section 6.7 (a) of
the Agreement.
3. The terms of Sections 8.3(a) and 8.7 of the Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
----------------
pursuant to Section 6.3(a) or 6.7 of the Agreement.
By:
-----------------------------
Title:
------------------------
Address for Notices:
--------------------------------
--------------------------------
--------------------------------
Fax:
----------------------------
Annex 1 to
US Global Guarantee
and Security Agreement
----------------------
ASSUMPTION AGREEMENT, dated as of __________________, 199_, made by
________________________, a ____________________ corporation (the "Additional
----------
Grantor"), in favor of CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as
-------
US administrative agent (in such capacity, the "US Administrative Agent") for
-----------------------
the banks and other financial institutions (the "Lenders") parties to the Credit
-------
Agreement referred to below. All capitalized terms not defined herein shall
have the meaning ascribed to them in such Credit Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, XXXXXX XXXXX CORP. (the "Borrower"), the Lenders and the US
--------
Administrative Agent have entered into a Credit Agreement, dated as of August
__, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS, in connection with the Credit Agreement, the Borrowers and
certain of Company's Affiliates (other than the Additional Grantor) have entered
into the US Global Guarantee and Security Agreement, dated as of August __, 1996
(as amended, supplemented or otherwise modified from time to time, the
"Guarantee and Security Agreement") in favor of the US Administrative Agent for
---------------------------------
benefit of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Grantor to become
a party to the Guarantee and Collateral Agreement; and
WHEREAS, the Additional Grantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee and Security
Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee and Security Agreement. By executing and delivering this
--------------------------------
Assumption Agreement, the Additional Grantor, as provided in Section 8.15 of the
Guarantee and Security Agreement, hereby becomes a party to the Guarantee and
Security Agreement as a Grantor thereunder with the same force and effect as if
originally named therein as a Grantor and, without limiting the generality of
the foregoing, hereby expressly assumes all obligations and liabilities of a
Grantor thereunder. The information set forth in
2
Annex 1-A hereto is hereby added to the information set forth in Schedules
__________________to the Guarantee and Security Agreement. The Additional
Grantor hereby represents and warrants that each of the representations and
warranties contained in Section 4 of the Guarantee and Security Agreement is
true and correct on and as the date hereof (after giving effect to this
Assumption Agreement) as if made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GRANTOR]
By:________________________________
Name:
Title:
Annex 2 to US
Global Guarantee
and Security
Agreement
[Form of Instruction to Register Pledge]
TO: [Name of Partnership]
You are hereby instructed to register the pledge of the following
uncertificated security as follows:
____% of the [limited partnership] [general partnership] interest of
the undersigned in [name of partnership].
Pledgor Pledgee
------------------- -----------------------------------
Canadian Imperial Bank of Commerce,
New York Agency
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Very truly yours,
By:_____________________
Title
Annex 3 to US
Global Guarantee
and Security
Agreement
[Form of Initial Transaction Statement]
August __, 1996
To: Canadian Imperial Bank of Commerce,
New York Agency
as US Administrative Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
This statement is to advise you that a pledge of the following
uncertificated security has been registered in the name of Canadian Imperial
Bank of Commerce, New York Agency as follows:
1. Uncertificated Security:
2. Registered Owner:
Taxpayer Identification Number:
3. Registered Pledgee:
Canadian Imperial Bank of Commerce
Taxpayer Identification Number:
4. There are no liens or restrictions of the undersigned partnership
and no adverse claims to which such uncertificated security is or may
be subject known to the undersigned partnership.
5. The pledge was registered on August __, 1996.
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE AS OF
THE TIME OF ITS ISSUANCE. DELIVERY OF THIS
2
STATEMENT, OF ITSELF, CONFERS NO RIGHTS ON THE RECIPIENT. THIS STATEMENT IS
NEITHER A NEGOTIABLE INSTRUMENT NOR A SECURITY.
Very truly yours,
[NAME OF PARTNERSHIP]
BY:________________________
Title:
Exhibit E-1 to Credit Agreement
-------------------------------
CANADIAN SECURITY AGREEMENT
between
XXXXXX XXXXX COMMAND COMPANY
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Canadian Administrative Agent
Dated as of August 13, 1996
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1
SECURITY INTERESTS
1.1. Grant of Security Interests............................. 2
1.2. Power of Attorney....................................... 2
1.3. Attachment.............................................. 2
1.4. Exception for Last Day of Real Property Leases.......... 2
1.5. Exception for Contractual Rights........................ 3
1.6. Transfer of Title....................................... 3
ARTICLE 2
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. Representations in the Credit Agreement................. 3
2.2. Covenants in the Credit Agreement....................... 3
2.3. Necessary Filings....................................... 4
2.4. No Liens................................................ 4
2.5. Other Financial Statements.............................. 4
2.6. Chief Executive Office; Records......................... 4
2.7. Location of Inventory and Equipment..................... 5
2.8. Recourse................................................ 5
2.9. Trade Names; Change of Name............................. 5
ARTICLE 3
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. Additional Representations and Warranties................ 6
3.2. Maintenance of Records................................... 6
3.3. Modification of Terms; etc............................... 7
3.4. Collection............................................... 7
3.5. Instruments.............................................. 7
3.6. Further Actions.......................................... 7
ARTICLE 4
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. Additional Representations and Warranties................ 8
4.2. Licenses and Assignments................................. 8
4.3. Infringements............................................ 8
4.4. Preservation of Marks.................................... 8
4.5. Maintenance of Registration.............................. 8
4.6. Future Registered Marks.................................. 9
4.7. Remedies................................................. 9
ARTICLE 5
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. Additional Representations and Warranties............... 10
5.2. Licenses and Assignments................................ 10
5.3. Infringements........................................... 10
5.4. Maintenance of Patents.................................. 10
5.5. Prosecution of Patent Application....................... 10
5.6. Other Patents and Copyrights............................ 11
5.7. Remedies................................................ 11
ARTICLE 6
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Canadian Administrative Agent's Security 11
6.2. Warehouse Receipts Non-Negotiable..................... 12
6.3. Further Actions....................................... 12
6.4. Financing Statements.................................. 12
ARTICLE 7
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies: Obtaining the Collateral Upon Default....... 12
7.1.A. Acting in Accordance with Commercial Practice......... 15
7.2. Remedies; Disposition of the Collateral............... 15
7.3. Waiver of Claims...................................... 15
7.4. Application of Proceeds............................... 16
7.5. Remedies Cumulative................................... 18
7.6. Discontinuance of Proceedings......................... 18
ARTICLE 8
INDEMNITY
8.1. Indemnity............................................. 19
8.2. Indemnity Obligations Secured by Collateral: Survival. 20
ARTICLE 9
DEFINITIONS
ARTICLE 10
MISCELLANEOUS
10.1. Notices............................................... 24
10.2. Waiver; Amendment..................................... 25
10.3. Obligations Absolute.................................. 25
10.4. Successors and Assigns................................ 26
10.5. Headings Descriptive.................................. 26
10.6. Severability.......................................... 26
10.7. Governing Law......................................... 26
10.8. Assignor's Duties..................................... 26
10.9. Termination: Release.................................. 26
10.10. Counterparts.......................................... 27
10.11. The Canadian Administrative Agent..................... 27
10.12. Acknowledgements...................................... 27
CANADIAN SECURITY AGREEMENT
SECURITY AGREEMENT dated as of August 13, 1996 between XXXXXX XXXXX
COMMAND COMPANY, a company amalgamated and existing under the laws of the
Province of Nova Scotia (the "Assignor"), and CANADIAN IMPERIAL BANK OF COMMERCE
(the "Canadian Administrative Agent"), in its capacity as Canadian
administrative agent, for the benefit of (x) the C$ Lenders under the Credit
Agreement hereinafter referred to (such C$ Lenders to which the Assignor has
obligations under the Credit Agreement are hereinafter called the "Lender
Creditors") and (y) if one or more Lenders, or an Affiliate thereof, enter into
one or more Interest Rate Protection Agreements with the Assignor, any such
Lender, or Affiliate thereof, (even if any such Lender ceases to be a Lender
under the Credit Agreement for any reason) so long as any such Lender or
Affiliate participates in the extension of such Interest Rate Protection
Agreements, and their subsequent assigns, if any (collectively, the "Other
Creditors" and, together with the Lender Creditors, the "Secured Creditors").
Except as otherwise defined herein, terms used herein and defined in the Credit
Agreement (defined below) shall be used herein as so defined.
W I T N E S S E T H:
--------------------
WHEREAS Xxxxxx Xxxxx Corp. (the "Company"), the Assignor, the
financial institutions party to the Credit Agreement hereinafter referred to
from time to time (the "Lenders"), Canadian Imperial Bank of Commerce, New York
Branch, and the Canadian Administrative Agent have entered into a credit
agreement dated as of August 13, 1996 providing for the making of Loans to the
Company and the Assignor as contemplated therein (as such agreement may be
amended, supplemented, restated or otherwise modified from time to time, the
"Credit Agreement");
WHEREAS the Assignor may at any time and from time to time enter into
one or more Interest Rate Protection Agreements with one or more Other
Creditors;
WHEREAS it was a condition to each of the above-described extensions
of credit to the Assignor that the Assignor shall execute and deliver this
Agreement;
NOW THEREFORE, in consideration of the extensions of credit to be made
to the Assignor and other benefits accruing to the Assignor, the receipt and
sufficiency of which are hereby acknowledged, the Assignor hereby makes the
following representations and warranties to the Canadian Administrative Agent
and hereby covenants and agrees with the Canadian Administrative Agent, in each
case as agent for and for the benefit of the Secured Creditors as follows:
-2-
ARTICLE 1
SECURITY INTERESTS
1.1. Grant of Security Interests. (a) As security for the prompt and
---------------------------
complete payment and performance when due of all of the Obligations, the
Assignor does hereby sell, assign and transfer unto the Canadian Administrative
Agent, and does hereby grant to the Canadian Administrative Agent for the
benefit of the Secured Creditors, a continuing security interest of first
priority (subject to Liens not prohibited by the Credit Agreement) in, all of
the right, title and interest of the Assignor in and to all of the personal
property and undertaking of the Assignor, whether now existing or hereafter from
time to time acquired including, without limitation, the following: (i) each and
every Receivable, (ii) all Contracts, together with all Contract Rights arising
thereunder, (iii) all Inventory, (iv) all Money, (v) all Equipment, (vi) all
Marks, together with the registrations and right to all renewals thereof, and
the goodwill of the business of the Assignor symbolized by the Marks, (vii) all
Patents and Copyrights, (viii) all computer programs of the Assignor and all
intellectual property rights therein and all other proprietary information of
the Assignor, including, but not limited to, trade secrets, (ix) all other
Goods, Intangibles, Chattel Paper, Documents and Instruments, and (x) all
Proceeds and products of any and all of the foregoing, but excluding, in each
case, any of the foregoing which constitute Consumer Goods (all of the
unexcluded above, collectively, the "Collateral").
(b) The security interest of the Canadian Administrative Agent under
this Agreement extends to all Collateral of the kind which is the subject of
this Agreement which the Assignor may acquire at any time during the
continuation of this Agreement.
1.2. Power of Attorney. The Assignor hereby constitutes and appoints the
-----------------
Canadian Administrative Agent its true and lawful attorney, irrevocably, with
full power after the occurrence of and during the continuance of an Event of
Default (in the name of the Assignor or otherwise) to act, require, demand,
receive, compound and give acquittance for any and all monies and claims for
monies due or to become due to the Assignor under or arising out of the
Collateral, to endorse any checks or other instruments or orders in connection
therewith and to file any claims or take any action or institute any proceedings
which the Canadian Administrative Agent may deem to be necessary or advisable to
protect the interests of the Secured Creditors, which appointment as attorney is
coupled with an interest.
1.3. Attachment. The Assignor and the Canadian Administrative Agent
----------
acknowledge and agree that value has been given for the granting of the security
interest granted hereby and that they have not agreed to postpone the time for
attachment, except for after-acquired property forming part of the Collateral
the attachment to which will occur forthwith upon the Assignor acquiring rights
thereto.
-3-
1.4. Exception for Last Day of Real Property Leases. Notwithstanding any
----------------------------------------------
other provision of this Agreement, the security interest granted hereby does not
and shall not extend to, and Collateral shall not include, the last day of the
term of any real property lease or sub-lease, oral or written, or any agreement
therefor, now held or hereafter acquired by the Assignor, but upon the sale of
the leasehold interest or any part thereof the Assignor shall stand possessed of
such last day in trust to assign the same as the Canadian Administrative Agent
shall direct.
1.5. Exception for Contractual Rights. Notwithstanding any other provision
--------------------------------
of this Agreement, the security interest hereby granted does not and shall not
extend to, and Collateral shall not include, any agreement, right, franchise,
license or permit (the "Contractual Rights") to which the Assignor is a party or
of which the Assignor has the benefit, to the extent that the creation of the
security interest therein would constitute a breach of the terms of or permit
any person to terminate the Contractual Rights, but the Assignor shall hold its
interest therein in trust for the Canadian Administrative Agent and shall assign
such Contractual Rights to the Canadian Administrative Agent forthwith upon
obtaining the consent of the other party thereto. The Assignor agrees that it
shall, upon the request of the Canadian Administrative Agent, use all
commercially reasonable efforts to obtain any consent required to permit any
material Contractual Rights to be subjected to the security interest.
1.6. Transfer of Title. As further continuing security for the due and
-----------------
timely payment and performance by the Assignor of the Obligations, the Assignor,
subject to Sections 1.4 and 1.5, hereby grants, bargains, sells, assigns and
transfers to the Canadian Administrative Agent all Collateral such that title
thereto and ownership therein shall belong to and be vested in the Canadian
Administrative Agent, provided that the Canadian Administrative Agent shall not
thereby assume or be liable for any obligations or payments in respect of any of
the Collateral and provided further that, upon the sale of any Collateral by the
Assignor in accordance with Section 7.2 of this Agreement, title thereto and
ownership therein shall be divested automatically from the Canadian
Administrative Agent and provided further that, upon the termination of this
Agreement in accordance with its terms, title to and ownership in the Collateral
shall be revested automatically in the Assignor without any further act of the
Canadian Administrative Agent or the Assignor.
-4-
ARTICLE 2
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Assignor represents, warrants and covenants, which
representations, warranties and covenants shall survive execution and delivery
of this Agreement, as follows:
2.1. Representations in the Credit Agreement. The representations and
---------------------------------------
warranties set forth in Section 5 of the Credit Agreement as they relate to the
Assignor or to the Loan Documents to which the Assignor is a party, each of
which is hereby incorporated herein by reference, are true and correct, and the
Canadian Administrative Agent and each Lender shall be entitled to rely on each
of them as if they were fully set forth herein, provided that each reference in
each such representation and warranty to the Company's knowledge shall, for the
purposes of this subsection 2.1, be deemed to be a reference to the Assignor's
knowledge.
2.2. Covenants in the Credit Agreement. The Assignor shall take, or shall
---------------------------------
refrain from taking, as the case may be, each action that is necessary to be
taken or not taken, as the case may be, so that no Default or Event of Default
is caused by the failure to take such action or to refrain from taking such
action by the Assignor.
2.3. Necessary Filings. All filings, registrations and recordings necessary
-----------------
or appropriate under the PPSA to create, preserve, protect and perfect the
security interest granted by the Assignor to the Canadian Administrative Agent
hereby in respect of the Collateral have been accomplished and the security
interest granted to the Canadian Administrative Agent pursuant to this Agreement
in and to the Collateral constitutes a perfected security interest therein prior
to the rights of all other Persons therein and subject to no other Liens (except
Liens not prohibited by the Credit Agreement) and is entitled to all the rights,
priorities and benefits afforded by the PPSA as enacted in any relevant
jurisdiction to perfected security interests.
2.4. No Liens. The Assignor is, and as to Collateral acquired by it from
--------
time to time after the date hereof the Assignor will be, the owner of all
Collateral free from any Lien, security interest, encumbrance or other right,
title or interest of any Person (other than Liens created hereby or otherwise
permitted under the Credit Agreement), and the Assignor shall defend the
Collateral against all claims and demands of all Persons at any time claiming
the same or any interest therein adverse to the Canadian Administrative Agent.
2.5. Other Financing Statements. As of the date hereof, there is no
--------------------------
financing statement (or similar statement or instrument of registration under
the law of any jurisdiction) covering or purporting to cover any interest of any
kind in the Collateral except as disclosed in Annex A hereto and so long as each
of the Canadian Commitments has not been terminated, any C$ Note remains unpaid,
any Interest Rate Protection Agreement entered into by the Assignor
-5-
remains in effect or any other Obligations remain unpaid or are owed with
respect thereto, the Assignor will not execute or authorize to be filed in any
public office any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or statements relating to the
Collateral, except financing statements filed or to be filed in respect of and
covering (i) the security interests granted hereby by the Assignor or (ii) Liens
not prohibited by the Credit Agreement.
2.6. Chief Executive Office; Records. The chief executive office of the
-------------------------------
Assignor is located at 000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx.
The Assignor will not move its chief executive office except to such new
location as the Assignor may establish in accordance with the last sentence of
this Section 2.6. The originals of all documents evidencing all Receivables and
Contract Rights of the Assignor and the only original books of account and
records of the Assignor relating thereto are, and will continue to be, kept at
such chief executive office, at such other locations shown on Annex B hereto or
at such new locations as the Assignor may establish in accordance with the last
sentence of this Section 2.6. All Receivables and Contract Rights of the
Assignor are, and will continue to be, maintained at, and controlled and
directed (including, without limitation, for general accounting purposes) from,
the office locations described above or such new location established in
accordance with the last sentence of this Section 2.6. The Assignor shall not
establish new locations for such offices until (i) it shall have given to the
Canadian Administrative Agent not less than 15 days' prior written notice of its
intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Canadian Administrative Agent
may request, (ii) with respect to such new location, it shall have taken all
action, satisfactory to the Canadian Administrative Agent, to maintain the
security interest of the Canadian Administrative Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect, and (iii) at the request of the Canadian Administrative Agent, it shall
have furnished an opinion of counsel acceptable to the Canadian Administrative
Agent to the effect that all financing or continuation statements and amendments
or supplements thereto have been filed in the appropriate filing office or
offices, and all other actions (including, without limitation, the payment of
all filing fees and taxes, if any, payable in connection with such filings) have
been taken, in order to perfect (and maintain the perfection and priority of)
the security interest granted hereby.
2.7. Location of Inventory and Equipment. All Inventory and Equipment held
-----------------------------------
on the date hereof by the Assignor (with the exception of Inventory in transit)
is located at one of the locations shown on Annex C hereto. The Assignor agrees
that all Inventory and Equipment now held or subsequently acquired by it (with
the exception of Inventory in transit) shall be kept at any one of the locations
shown on Annex C hereto, or such new location as the Assignor may establish in
accordance with the last sentence of this Section 2.7. The Assignor may
establish a new location for Inventory and Equipment only if (i) it shall have
given to the Canadian Administrative Agent not less than 15 days' prior written
notice of its intention so to do, clearly describing such new location and
providing such other information in connection therewith as
-6-
the Canadian Administrative Agent may request, (ii) with respect to such new
location, it shall have taken all action satisfactory to the Canadian
Administrative Agent to maintain the security interest of the Canadian
Administrative Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect, and (iii) at the request of
the Canadian Administrative Agent, it shall have furnished an opinion of counsel
acceptable to the Canadian Administrative Agent to the effect that all financing
or continuation statements and amendments or supplements thereto have been filed
in the appropriate filing office or offices, and all other actions (including,
without limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken, in order to perfect (and maintain
the perfection and priority of) the security interest granted hereby.
2.8. Recourse. This Agreement is made with full recourse to the Assignor and
--------
pursuant to and upon all the warranties, representations, covenants and
agreements on the part of the Assignor contained herein, in the other Loan
Documents, in the Interest Rate Protection Agreements entered into by the
Assignor and otherwise in writing in connection herewith or therewith.
2.9. Trade Names; Change of Name. The Assignor does not have or operate in
---------------------------
any jurisdiction under, or in the preceding 12 months has not had or has not
operated in any jurisdiction under, any trade names, fictitious names or other
names except its legal name, the names of its predecessors, Xxxxxx Xxxxx Command
Company and Command Records Services Limited, and such other trade or fictitious
names as are listed on Annex D hereto. The Assignor does not have or use a
French form of name or a combined English and French form of name. The Assignor
shall not change its legal name or assume or operate in any jurisdiction under
any trade, fictitious or other name except those names listed on Annex D hereto
and new names established in accordance with the last sentence of this Section
2.9. The Assignor shall not assume or operate in any jurisdiction under any new
trade, fictitious or other name until (i) it shall have given to the Canadian
Administrative Agent not less than 15 days' prior written notice of its
intention so to do, clearly describing such new name and the jurisdictions in
which such new name shall be used and providing such other information in
connection therewith as the Canadian Administrative Agent may request, (ii) with
respect to such new name, it shall have taken all action, requested by the
Canadian Administrative Agent, to maintain the security interest of the Canadian
Administrative Agent in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect, and (iii) at the request of
the Canadian Administrative Agent, it shall have furnished an opinion of counsel
acceptable to the Canadian Administrative Agent to the effect that all financing
or continuation statements and amendments or supplements thereto have been filed
in the appropriate filing office or offices, and all other actions (including,
without limitation, the payment of all filing fees and taxes, if any, payable in
connection with such filings) have been taken, in order to perfect (and maintain
the perfection and priority of) the security interest granted hereby.
-7-
ARTICLE 3
SPECIAL PROVISIONS CONCERNING
RECEIVABLES; CONTRACT RIGHTS; INSTRUMENTS
3.1. Additional Representations and Warranties. As of the time when each of
-----------------------------------------
its Receivables arises, the Assignor shall be deemed to have represented and
warranted that such Receivable, and all records, papers and documents relating
thereto (if any) are genuine and in all respects what they purport to be, and
that all papers and documents (if any) relating thereto (i) will represent the
genuine obligation of the account debtor evidencing indebtedness unpaid and owed
by the respective account debtor arising out of the performance of labour or
services or the sale or lease and delivery of the merchandise listed therein, or
both, (ii) will be the only original writings evidencing and embodying such
obligation of the account debtor named therein (other than copies created for
general accounting purposes), (iii) to the best of its knowledge, will evidence
true and valid obligations, enforceable in accordance with their respective
terms, except that the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law), and (iv) will be in compliance and will conform in all material
respects with all applicable federal, provincial, state and local laws and
applicable laws of any relevant foreign jurisdiction.
3.2. Maintenance of Records. The Assignor will keep and maintain at its own
----------------------
cost and expense satisfactory and complete records of its Receivables and
Contracts, including, but not limited to, the originals of all documentation
(including each Contract) with respect thereto, records of all payments
received, all credits granted thereon, all merchandise returned and all other
dealings therewith, and the Assignor will make the same available on the
Assignor's premises to the Canadian Administrative Agent for inspection, at the
Assignor's own cost and expense, at reasonable times and intervals upon request
by the Administrative Agent. Upon the occurrence and during the continuance of
an Event of Default and at the request of the Canadian Administrative Agent, the
Assignor shall, at its own cost and expense, deliver all tangible evidence of
its Receivables and Contract Rights (including, without limitation, all
documents evidencing the Receivables and all Contracts) and such books and
records to the Canadian Administrative Agent or to its representatives (copies
of which evidence and books and records may be retained by the Assignor). Upon
the occurrence and during the continuance of an Event of Default, if the
Canadian Administrative Agent so directs, the Assignor shall legend, in form and
manner satisfactory to the Canadian Administrative Agent, the Receivables and
the Contracts, as well as books, records and documents of the Assignor
evidencing or pertaining to such Receivables and Contracts with an appropriate
reference to the fact that such Receivables and Contracts have been assigned to
the Canadian Administrative Agent and that the Canadian Administrative Agent has
a security interest therein.
-8-
3.3. Modification of Terms; etc. The Assignor shall not rescind or cancel
---------------------------
any indebtedness evidenced by any Receivable or under any Contract, or modify
any term thereof or make any adjustment with respect thereto, or extend or renew
the same, or compromise or settle any material dispute, claim, suit or legal
proceeding relating thereto, or sell any Receivable or Contract, or interest
therein, without the prior written consent of the Canadian Administrative Agent,
except as permitted by Section 3.4. The Assignor will duly fulfil all
obligations on its part to be fulfilled under or in connection with the
Receivables and Contracts and will do nothing to impair the rights of the
Canadian Administrative Agent in the Receivables or Contracts.
3.4. Collection. The Assignor shall endeavour to cause to be collected from
----------
the account debtor named in each of its Receivables or obligor under any
Contract, as and when due (including, without limitation, amounts which are
delinquent, such amounts to be collected in accordance with generally accepted
lawful collection procedures) any and all amounts owing under or on account of
such Receivable or Contract, and apply forthwith upon receipt thereof all such
amounts as are so collected to the outstanding balance of such Receivable or
under such Contract, except that, prior to the occurrence of an Event of
Default, the Assignor may allow in the ordinary course of business as
adjustments to amounts owing under its Receivables and Contracts (i) adjustments
consistent with its past practice or consistent with adjustments being offered
by its competition, (ii) an extension or renewal of the time or times of
payment, or settlement for less than the total unpaid balance, which the
Assignor finds appropriate in accordance with sound business judgment, and (iii)
a refund or credit due as a result of returned or damaged merchandise or
improperly performed services. The reasonable costs and expenses (including,
without limitation, attorneys' fees) of collection, whether incurred by the
Assignor or the Canadian Administrative Agent, shall be borne by the Assignor.
3.5. Instruments. If the Assignor owns or acquires any Instrument (other
-----------
than cheques acquired in the ordinary course of business and deposited in a bank
account of Assignor for collection) constituting Collateral, the Assignor will
within 10 Business Days notify the Canadian Administrative Agent thereof, and,
upon request by the Canadian Administrative Agent, will promptly deliver such
Instrument to the Canadian Administrative Agent appropriately endorsed to the
order of the Canadian Administrative Agent as further security hereunder.
3.6. Further Actions. The Assignor will, at its own expense, make, execute,
---------------
endorse, acknowledge, file and/or deliver to the Canadian Administrative Agent
from time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to its Receivables, Contracts, Instruments and other property or
rights covered by the security interest hereby, granted, as the Canadian
Administrative Agent may reasonably require.
-9-
ARTICLE 4
SPECIAL PROVISIONS CONCERNING TRADEMARKS
4.1. Additional Representations and Warranties. The Assignor represents and
-----------------------------------------
warrants that it is the true and lawful owner of or otherwise has the right to
use the registered Marks listed in Annex E hereto and that said listed Marks
constitute all Canadian marks and applications for Canadian marks registered in
the Canadian Trademark office that the Assignor presently owns or uses in
connection with its business. The Assignor represents and warrants that it
owns, is licensed to use or otherwise has the right to use all Marks that it
uses. The Assignor further warrants that, except as set forth in Annex F
hereto, it has no knowledge as of the date hereof, of any third party claim that
any aspect of the Assignor's present business operations or business operations
contemplated as of the date hereof infringes or will infringe any trademark,
service xxxx or trade name. The Assignor represents and warrants that it is the
beneficial and record owner of all Canadian trademark registrations and
applications listed in Annex E hereto and that said registrations are valid,
subsisting, have not been cancelled and that the Assignor is not aware of any
third-party claim that any of said registrations is invalid or unenforceable,
or, except as set forth in Annex F hereto, that there is any reason that any of
said applications will not pass to registration. The Assignor hereby grants to
the Canadian Administrative Agent an absolute power of attorney to sign, upon
the occurrence and during the continuance of an Event of Default, any document
which may be required by the Canadian Trademark office in order to effect an
absolute assignment of all right, title and interest in each Xxxx, and record
the same.
4.2. Licenses and Assignments. Other than the license agreements listed on
------------------------
Annex G hereto and any extensions or renewals thereof, or as otherwise permitted
by the Credit Agreement, the Assignor hereby agrees not to divest itself of any
right under any Xxxx absent prior written approval of the Canadian
Administrative Agent.
4.3. Infringements. The Assignor agrees, promptly upon learning thereof, to
-------------
notify the Canadian Administrative Agent in writing of the name and address of,
and to furnish such pertinent information that may be available with respect to,
any party who the Assignor believes is infringing or diluting or otherwise
violating in any respect any of the Assignor's rights in and to any material
Xxxx, or with respect to any party claiming that the Assignor's use of any
material Xxxx violates in any material respect any property right of that party.
The Assignor further agrees, unless otherwise agreed by the Canadian
Administrative Agent, to prosecute diligently any Person infringing any material
Xxxx.
4.4. Preservation of Marks. The Assignor agrees to use its Marks during the
---------------------
time in which this Agreement is in effect, sufficiently to preserve such Marks
as trademarks or service marks under the laws of Canada (unless the Assignor, in
its sound business judgment, determines that the preservation of such Marks is
no longer necessary or desirable in the conduct
-10-
of its business).
4.5. Maintenance of Registration. The Assignor shall, at its own expense,
---------------------------
diligently process all documents required by the Trademark Act (Canada) to
maintain trademark registration, including but not limited to affidavits of use
and applications for renewals of registration in the Canadian Trademark office
for all of its registered Canadian Marks, and shall pay all fees and
disbursements in connection therewith and shall not abandon any such filing of
affidavit of use or any such application of renewal prior to the exhaustion of
all administrative and judicial remedies without prior written consent of the
Canadian Administrative Agent (unless the Assignor, in its sound business
judgment, determines that the maintenance of such Marks is no longer necessary
or desirable in the conduct of its business). The Assignor agrees to notify the
Canadian Administrative Agent three (3) months prior to the dates on which the
affidavits of use or the applications for renewal registration are due with
respect to any registered Xxxx that the affidavits of use or the renewal is
being processed.
4.6. Future Registered Marks. If any Xxxx registration issues hereafter to
-----------------------
the Assignor as a result of any application now or hereafter pending before the
Canadian Trademark office, within 30 days of receipt of such certificate the
Assignor shall deliver to the Canadian Administrative Agent a copy of such
certificate, and an assignment for security in such Xxxx, to the Canadian
Administrative Agent and at the expense of the Assignor, confirming the
assignment for security in such Xxxx to the Canadian Administrative Agent
hereunder, the form of such security to be substantially the same as the form
hereof.
4.7. Remedies. If an Event of Default shall occur and be continuing, the
--------
Canadian Administrative Agent may, by written notice to the Assignor, take any
or all of the following actions: (i) declare the entire right, title and
interest of the Assignor in and to each of the Marks, together with all
trademark rights and rights of protection to the same, vested in the Canadian
Administrative Agent for the benefit of the Secured Creditors, in which event
such rights, title and interest shall immediately vest in the Canadian
Administrative Agent for the benefit of the Secured Creditors, and the Canadian
Administrative Agent shall be entitled to exercise the power of attorney
referred to in Section 4.1 to execute, cause to be acknowledged and notarized
and record said absolute assignment with the applicable agency; (ii) take and
use or sell the Marks and the goodwill of the Assignor's business symbolized by
the Marks and the right to carry on the business and use the assets of the
Assignor in connection with which the Marks have been used; and (iii) direct the
Assignor to refrain, in which event the Assignor shall refrain, from using the
Marks in any manner whatsoever, directly or indirectly, and, if requested by the
Canadian Administrative Agent, change the Assignor's corporate name to eliminate
therefrom any use of any Xxxx and execute such other and further documents that
the Canadian Administrative Agent may request to further confirm this and to
transfer ownership of the Marks and registrations and any pending trademark
application in the Canadian Trademark office to the Canadian Administrative
Agent. By its execution of this Agreement, the Assignor hereby agrees that if
an Event of Default shall occur and be continuing and at the Canadian
Administrative
-11-
Agent's written request, that it will refrain from using the Marks in any manner
whatsoever, directly or indirectly, and, if requested by the Canadian
Administrative Agent, it will change its corporate name to eliminate therefrom
any use of any Xxxx and execute such other and further documents that the
Canadian Administrative Agent may request to further confirm this.
ARTICLE 5
SPECIAL PROVISIONS CONCERNING
PATENTS, COPYRIGHTS AND TRADE SECRETS
5.1. Additional Representations and Warranties. The Assignor represents and
-----------------------------------------
warrants that it is the true and lawful owner of all rights in (x) all Canadian
trade secrets and proprietary information necessary to operate the business of
the Assignor (the "Trade Secret Rights"), (y) in the Patents listed in Annex H
hereto and (z) the Copyrights listed in Annex I hereto, that said Patents
constitute all the Canadian patents and applications for Canadian patents that
the Assignor now owns and that said Copyrights constitute all the Canadian
copyrights and applications for Canadian copyrights that the Assignor now owns.
The Assignor further warrants that, except as set forth in Annex J hereto, as of
the date hereof it has no knowledge of any third party claim that any aspect of
the Assignor's present business operations or business operations contemplated
as of the date hereof infringes or will infringe any patent or any copyright or
that Assignor has misappropriated any trade secret or proprietary information.
The Assignor hereby grants to the Canadian Administrative Agent an absolute
power of attorney to sign, upon the occurrence and during the continuance of any
Event of Default, any document which may be required by the Canadian Patent
office or the Canadian Copyright office in order to effect an absolute
assignment of all right, title and interest in each Patent and Copyright, and to
record the same.
5.2. Licenses and Assignments. Other than the license agreements listed on
------------------------
Annex G hereto and any extensions or renewal thereof or as otherwise permitted
by the Credit Agreement, the Assignor hereby agrees not to divest itself of any
right under any Patent or Copyright absent prior written approval of the
Canadian Administrative Agent.
5.3. Infringements. The Assignor agrees, promptly upon learning thereof, to
-------------
furnish the Canadian Administrative Agent in writing with all pertinent
information available to the Assignor with respect to any infringement,
contributing infringement or active inducement to infringe in any material
Patent or Copyright or to any claim that practice of any material Patent or
Copyright violates any property right of a third party, or with respect to any
misappropriation of any material Trade Secret Right or any claim that practice
of any material Trade Secret Right violates any property right of a third party.
The Assignor further agrees, absent direction of the Canadian Administrative
Agent to the contrary, diligently to prosecute any Person infringing any
material Patent or Copyright or any Person misappropriating any material Trade
Secret Right.
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5.4. Maintenance of Patents. At its own expense, the Assignor shall make
----------------------
timely payment of all post-issuance fees required pursuant to Canadian patent
law to maintain in force rights under each Patent absent prior written consent
of the Canadian Administrative Agent.
5.5. Prosecution of Patent Application. At its own expense, the Assignor
---------------------------------
shall diligently prosecute all applications for Canadian Patents listed in Annex
H hereto and shall not abandon any such application prior to exhaustion of all
administrative and judicial remedies, absent written consent of the Canadian
Administrative Agent.
5.6. Other Patents and Copyrights. Within 30 days of acquisition of a
----------------------------
Canadian Patent or registered Copyright, or of filing of an application for a
Canadian Patent or Copyright, the Assignor shall deliver to the Canadian
Administrative Agent a copy of said Patent or Copyright, as the case may be,
with an assignment for security as to such Patent or Copyright, as the case may
be, to the Canadian Administrative Agent and at the expense of the Assignor,
confirming the assignment for security, the form of such assignment for security
to be substantially the same as the form hereof.
5.7. Remedies. If an Event of Default shall occur and be continuing, the
--------
Canadian Administrative Agent may by written notice to the Assignor, take any or
all of the following actions: (i) declare the entire right, title, and interest
of the Assignor in each of the Patents and Copyrights vested in the Canadian
Administrative Agent for the benefit of the Secured Creditors, in which event
such right, title, and interest shall immediately vest in the Canadian
Administrative Agent for the benefit of the Secured Creditors, in which case the
Canadian Administrative Agent shall be entitled to exercise the power of
attorney referred to in Section 5.1 to execute, cause to be acknowledged and
notarized and record said absolute assignment with the applicable agency; (ii)
take and practice or sell the Patents and Copyrights; and (iii) direct the
Assignor to refrain, in which event the Assignor shall refrain, from practising
the Patents and using the Copyrights, directly or indirectly, and the Assignor
shall execute such other and further documents as the Canadian Administrative
Agent may request further to confirm this and to transfer ownership of the
Patents and Copyrights to the Canadian Administrative Agent for the benefit of
the Secured Creditors.
ARTICLE 6
PROVISIONS CONCERNING ALL COLLATERAL
6.1. Protection of Canadian Administrative Agent's Security. The Assignor
------------------------------------------------------
will do nothing to impair the rights of the Canadian Administrative Agent in the
Collateral. The Assignor will at all times keep its Inventory and Equipment
insured in favour of the Canadian Administrative Agent, at the Assignor's own
expense to the extent and in the manner provided in the Credit Agreement; all
policies or certificates with respect to such insurance; (i) shall be
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endorsed to the Canadian Administrative Agent's satisfaction for the benefit of
the Canadian Administrative Agent (including, without limitation, by naming the
Canadian Administrative Agent as loss payee), (ii) shall state that such
insurance policies shall not be cancelled or revised without 30 days' prior
written notice thereof by the insurer to the Canadian Administrative Agent, and
(iii) certified copies of such policies or certificates shall be deposited with
the Canadian Administrative Agent. If the Assignor shall fail to insure its
Inventory and Equipment in accordance with the preceding sentence, or if the
Assignor shall fail to so endorse and deposit all policies or certificates with
respect thereto, the Canadian Administrative Agent shall have the right (but
shall be under no obligation) to procure such insurance and the Assignor agrees
to promptly reimburse the Canadian Administrative Agent for all costs and
expenses of procuring such insurance. The Canadian Administrative Agent may
apply any proceeds of such insurance obtained by the Canadian Administrative
Agent in accordance with Section 7.4. The Assignor assumes all liability and
responsibility in connection with the Collateral acquired by it and the
liability of the Assignor to pay the Obligations shall in no way be affected or
diminished by reason of the fact that such Collateral may be lost, destroyed,
stolen, damaged or for any reason whatsoever unavailable to the Assignor.
6.2. Warehouse Receipts Non-Negotiable. The Assignor agrees that if any
---------------------------------
warehouse receipt or receipt in the nature of a warehouse receipt is issued with
respect to any of its Inventory, such warehouse receipt or receipt in the nature
thereof shall not be "negotiable" (as such term is used under relevant law).
6.3. Further Actions. The Assignor will, at its own expense, make, execute,
---------------
endorse, acknowledge, file and/or deliver to the Canadian Administrative Agent
from time to time such lists, descriptions and designations of its Collateral,
warehouse receipts, receipts in the nature of warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Canadian
Administrative Agent deems reasonably appropriate or advisable to perfect,
preserve or protect its security interest in the Collateral.
6.4. Financing Statements. The Assignor agrees to execute and deliver to the
--------------------
Canadian Administrative Agent such financing statements and financing change
statements or other similar filings, in form reasonably acceptable to the
Canadian Administrative Agent, as the Canadian Administrative Agent may from
time to time reasonably request or as are necessary or desirable in the opinion
of the Canadian Administrative Agent to establish and maintain a valid,
enforceable, first priority perfected security interest in the Collateral as
provided herein and the other rights and security contemplated hereby all in
accordance with the PPSA as enacted in any and all relevant jurisdictions or any
other relevant law. The Assignor will pay any applicable filing fees,
recordation taxes and related expenses. The Assignor authorizes the Canadian
Administrative Agent to file any such financing statements and financing change
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statements or other similar filings without the signature of the Assignor where
permitted by law.
ARTICLE 7
REMEDIES UPON OCCURRENCE OF EVENT OF DEFAULT
7.1. Remedies: Obtaining the Collateral Upon Default. Subject to Section 7.2
-----------------------------------------------
and the mandatory provisions of any applicable law, the Assignor agrees that, if
any Event of Default shall have occurred and be continuing, then and in every
such case, subject to any mandatory requirements of applicable law then in
effect, the Canadian Administrative Agent, in addition to any rights now or
hereafter existing under applicable law, shall have all rights as a secured
creditor under the PPSA in all relevant jurisdictions and may:
(a) personally, or by agents or attorneys, immediately take possession
of the Collateral or any part thereof, from the Assignor or any other Person who
then has possession of any part thereof with or without notice or process of
law, and for the purpose may enter upon the Assignor's premises where any of the
Collateral is located and remove the same and use in connection with such
removal any and all services, supplies, aids and other facilities of the
Assignor;
(b) instruct the obligor or obligors on any agreement, instrument or
other obligation (including, without limitation, the Receivables and the
Contracts) constituting the Collateral to make any payment required by the terms
of such agreement, instrument or other obligation directly to the Canadian
Administrative Agent;
(c) sell, assign or otherwise liquidate, or direct the Assignor to
sell, assign or otherwise liquidate, any or all of the Collateral or any part
thereof, and take possession of the proceeds of any such sale or liquidation;
(d) take possession of the Collateral or any part thereof, by
directing the Assignor in writing to deliver the same to the Canadian
Administrative Agent at any place or places designated by the Canadian
Administrative Agent, in which event the Assignor shall at its own expense:
(i) forthwith cause the same to be moved to the place or places so
designated by the Canadian Administrative Agent and there
delivered to the Canadian Administrative Agent;
(ii) store and keep any Collateral so delivered to the Canadian
Administrative Agent at such place or places pending further
action by the Canadian Administrative Agent as provided in
Section 7.2; and
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(iii) while the Collateral shall be so stored and kept, provide such
guards and maintenance services as shall be necessary to protect the same and to
preserve and maintain them in good condition;
(e) license or sublicense, whether on an exclusive or nonexclusive basis,
any Marks, Patents or Copyrights included in the Collateral for such term and on
such conditions and in such manner as the Canadian Administrative Agent shall in
its sole judgment determine;
(f) repair, process, complete, modify or otherwise deal with the Collateral
and prepare for the disposition of the Collateral, whether on the premises of
the Assignor or otherwise and in connection with any such action utilize any of
the Assignor's property without charge;
(g) carry on all or any part of the business or businesses of the Assignor
and, to the exclusion of all others including the Assignor, enter upon, occupy
and, subject to any requirements of law and subject to any leases or agreements
then in place, use all or any of the premises, buildings, plant, undertaking and
other property of, or used by, the Assignor for such time and in such manner as
the Canadian Administrative Agent sees fit, free of charge, and except to the
extent required by law, the Canadian Administrative Agent shall not be liable to
the Assignor for any act, omission or negligence in so doing or for any rent,
charges, depreciation or damages or other amount incurred in connection
therewith or resulting therefrom;
(h) file such proofs of claim or other documents as may be necessary or
desirable to have its claim lodged in any bankruptcy, winding-up, liquidation,
dissolution or other proceedings (voluntary or otherwise) relating to the
Assignor;
(i) borrow money for the purpose of carrying on the business of the
Assignor or for the maintenance, preservation or protection of the Collateral
and mortgage, charge, pledge or grant a security interest in the Collateral,
whether or not in priority to the security interest hereby created and granted,
to secure repayment of any money so borrowed;
(j) where the Collateral has been disposed of by the Canadian
Administrative Agent as provided in Section 7.1(c), commence legal action
against the Assignor for any deficiency, if any;
(k) appoint, by an instrument in writing delivered to the Assignor, a
receiver, manager or a receiver and manager (a "Receiver") to collect the
Proceeds, and remove any Receiver so appointed and appoint another or others in
its stead, or institute proceedings in any court of competent jurisdiction of
the appointment of a Receiver, it being understood and agreed that:
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(i) the Canadian Administrative Agent may appoint any person as
Receiver, including an officer or employee of the Canadian
Administrative Agent;
(ii) such appointment may be made at any time after an Event of
Default either before or after the Canadian Administrative
Agent shall have taken possession of the Collateral;
(iii) the Canadian Administrative Agent may from time to time fix the
reasonable remuneration of the Receiver and direct the payment
thereof out of the Collateral or Proceeds; and
(iv) the Receiver shall, except as otherwise provided under
applicable law, be deemed to be the agent of the Assignor for
all purposes and, for greater certainty, the Canadian
Administrative Agent shall not be, in any way, responsible for
any actions, whether wilful, negligent or otherwise, of any
Receiver, and the Assignor hereby agrees to indemnify and save
harmless the Canadian Administrative Agent from and against any
and all claims, demands, actions, costs, damages, expenses or
payments which the Canadian Administrative Agent may hereafter
suffer, incur or be required to pay as a result of, in whole or
in part, any action taken by the Receiver or any failure of the
Receiver to do any act or thing;
(l) pay or discharge any Lien claimed by any person in the Collateral and
ranking in priority to the security interest granted herein (except Liens not
prohibited by the Credit Agreement);
(m) take any other action, suit, remedy or proceeding authorized or
permitted by this Agreement, the PPSA or by law or equity;
it being understood that the Assignor's obligation so to deliver the Collateral
is of the essence of this Agreement and that, accordingly, upon application to a
court of equity having jurisdiction, the Canadian Administrative Agent shall be
entitled to a decree requiring specific performance by the Assignor of said
obligation.
7.1.A. Acting in Accordance with Commercial Practice. In enforcing its rights
---------------------------------------------
hereunder, the Canadian Administrative Agent and any Receiver shall be required
to act at least to the standards which are consistent with the commercial
practices of a person carrying on a business in a distress, default or
liquidation situation.
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7.2. Remedies; Disposition of the Collateral. Any Collateral repossessed
---------------------------------------
by the Canadian Administrative Agent under or pursuant to Section 7.1 and any
other Collateral whether or not so repossessed by the Canadian Administrative
Agent, may be sold, assigned, leased or otherwise disposed of under one or more
contracts or as an entirety, and without the necessity of gathering at the place
of sale the property to be sold, and in general in such manner, at such time or
times, at such place or places and on such terms as the Canadian Administrative
Agent may, in compliance with any mandatory requirements of applicable law,
determine to be commercially reasonable. Any of the Collateral may be sold,
leased or otherwise disposed of, in the condition in which the same existed when
taken by the Canadian Administrative Agent or after any overhaul or repair at
the expense of the Assignor which the Canadian Administrative Agent shall
determine to be commercially reasonable. Any such disposition which shall be a
private sale or other private proceedings permitted by such requirements shall
be made upon not less than 15 days' written notice to the Assignor specifying
the time at which such disposition is to be made and the intended sale price or
other consideration therefor and such other matters as required by applicable
law, and shall be subject, for the 15 days after the giving of such notice, to
the right of the Assignor, any nominee of the Assignor or any other Person
provided under applicable law to acquire the Collateral involved at a price or
for such other consideration at least equal to the intended sale price or other
consideration so specified. Any such disposition which shall be a public sale
permitted by such requirements shall be made upon not less than 15 days' written
notice to the Assignor specifying the time and place of such sale and, in the
absence of applicable requirements of law, shall be by public auction (which
may, at the Canadian Administrative Agent's option, be subject to reserve),
after publication of notice of such auction not less than 15 days prior thereto
in two newspapers in general circulation in the Municipality of Metropolitan
Toronto. To the extent permitted by any such requirement of law, the Canadian
Administrative Agent may bid for and become the purchaser of the Collateral or
any item thereof, offered for sale in accordance with this Section without
accountability to the Assignor. If, under mandatory requirements of applicable
law, the Canadian Administrative Agent shall be required to make disposition of
the Collateral within a period of time which does not permit the giving of
notice to the Assignor as hereinabove specified, the Canadian Administrative
Agent need give the Assignor only such notice of disposition as shall be
reasonably practicable in view of such mandatory requirements of applicable law.
7.3. Waiver of Claims. Except as otherwise provided in this Agreement, THE
----------------
ASSIGNOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOTICE AND
JUDICIAL HEARING IN CONNECTION WITH THE CANADIAN ADMINISTRATIVE AGENT'S TAKING
POSSESSION OR THE CANADIAN ADMINISTRATIVE AGENT'S DISPOSITION OF ANY OF THE
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING
FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT WHICH ASSIGNOR WOULD
OTHERWISE HAVE UNDER THE LAWS OF CANADA OR OF A PROVINCE THEREOF, and the
Assignor hereby further waives, to the extent permitted by law:
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(a) all damages occasioned by such taking of possession except any damages
which are the direct result of the Canadian Administrative Agent's gross
negligence or wilful misconduct;
(b) all other requirements as to the time, place and terms of sale or
other requirements with respect to the enforcement of the Canadian
Administrative Agent's rights hereunder; and
(c) all rights of redemption, appraisement, valuation, stay, extension or
moratorium now or hereafter in force under any applicable law in order to
prevent or delay the enforcement of this Agreement or the absolute sale of the
Collateral or any portion thereof, and the Assignor, for itself and all who may
claim under it, insofar as it or they now or hereafter lawfully may, hereby
waives the benefit of all such laws.
Any sale of, or the grant of options to purchase, or any other realization upon,
any Collateral shall operate to divest all right, title, interest, claim and
demand, either at law or in equity, of the Assignor therein and thereto, and
shall be a perpetual bar both at law and in equity against the Assignor and
against any and all Persons claiming or attempting to claim the Collateral so
sold, optioned or realized upon, or any part thereof, from, through and under
the Assignor.
7.4. Application of Proceeds. (a) All monies collected by the Canadian
-----------------------
Administrative Agent upon any sale or other disposition of the Collateral,
together with all other monies received by the Canadian Administrative Agent
hereunder, shall be applied as follows:
(i) first, to the payment of all Obligations owing the Canadian
Administrative Agent of the type provided in clauses (iii) and
(iv) of the definition of Obligations;
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the
outstanding Primary Obligations shall be paid to the Secured
Creditors as provided in Section 7.4(d), with each Secured
Creditor receiving an amount equal to its outstanding Primary
Obligations or, if the proceeds are insufficient to pay in full
all such Primary Obligations, its Pro Rata Share of the amount
remaining to be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal
to the outstanding Secondary Obligations shall be paid to the
Secured Creditors as provided in Section 7.4(d), with each
Secured Creditor receiving an amount equal to its outstanding
Secondary Obligations or, if the proceeds are insufficient to
pay in full all such Secondary Obligations,
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its Pro Rata Share of the amount remaining to be distributed;
and
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i), (ii) and (iii), to the
Assignor or to whomever may be lawfully entitled to receive
such surplus.
(b) For purposes of this Agreement, (x) "Pro Rata Share" shall mean, when
calculating a Secured Creditor's portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction, the numerator of which
is the then unpaid amount of such Secured Creditor's Primary Obligations or
Secondary Obligations, as the case may be, and the denominator of which is the
then outstanding amount of all Primary Obligations or Secondary Obligations, as
the case may be, (y) "Primary Obligations" shall mean (i) all of the Credit
Agreement Obligations consisting of all principal of, and interest on, all C$
Loans under the Credit Agreement (together with all interest accrued thereon),
and all regularly accruing Fees owing to the C$ Lenders under the Credit
Agreement, and (ii) all of the Other Obligations consisting of all amounts due
under the Interest Rate Protection Agreements entered into by the Assignor
(other than indemnities, attorneys' fees and similar obligations and
liabilities), and (z) "Secondary Obligations" shall mean all Obligations other
than Primary Obligations.
(c) When payments to Secured Creditors are based upon their respective Pro
Rata Shares, the amounts received by such Secured Creditors hereunder shall be
applied (for purposes of making determinations under this Section 7.4 only) (i)
first, to their Primary Obligations and (ii) second, to their Secondary
Obligations. If any payment to any Secured Creditor of its Pro Rata Share of
any distribution would result in overpayment to such Secured Creditor, such
excess amount shall instead be distributed in respect of the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or Secondary
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction, the numerator of which is
the unpaid Primary Obligations or Secondary Obligations, as the case may be, of
such Secured Creditors and the denominator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors.
(d) All payments required to be made to the Lender Creditors hereunder
shall be made to the Canadian Administrative Agent for the account of the Lender
Creditors and all payments required to be made to the Other Creditors hereunder
shall be made to the trustee, paying agent or similar representative under the
applicable Interest Rate Protection Agreement, or in the case of Interest Rate
Protection Agreements without a trustee, paying agent or similar representative,
all payments required to be made hereunder shall be made directly to the Other
Creditors.
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(e) For purposes of applying payments received in accordance with this
Section 7.4, the Canadian Administrative Agent shall be entitled to rely upon
(i) the U.S. Administrative Agent under the Credit Agreement, and (ii) the Other
Creditors for a determination (which the U.S. Administrative Agent, the
Assignor, each Other Creditor and the Secured Creditors agree (or shall agree)
to provide upon request of the Canadian Administrative Agent) of the outstanding
Primary Obligations and Secondary Obligations owing to the Lender Creditors or
the Other Creditors, as the case may be.
(f) It is understood that the Assignor shall remain liable to the extent
of any deficiency between the amount of the proceeds of the Collateral and the
aggregate amount of the sums referred to in clause (a) of this Section with
respect to the Assignor.
7.5. Remedies Cumulative. Each and every right, power and remedy hereby
-------------------
specifically given to the Canadian Administrative Agent shall be in addition to
every other right, power and remedy specifically given under this Agreement, the
Interest Rate Protection Agreements entered into by the Assignor, the other Loan
Documents and now or hereafter existing at law, in equity or by statute and each
and every right, power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time or simultaneously and as often and
in such order as may be deemed expedient by the Canadian Administrative Agent.
All such rights, powers and remedies shall be cumulative and the exercise or the
beginning of the exercise of one shall not be deemed a waiver of the right to
exercise any other or others. No delay or omission of the Canadian
Administrative Agent in the exercise of any such right, power or remedy and no
renewal or extension of any of the Obligations shall impair any such right,
power or remedy or shall be construed to be a waiver of any Default or Event of
Default or an acquiescence therein. No notice to or demand on the Assignor in
any case shall entitle it to any other or further notice or demand in similar or
other circumstances or constitute a waiver of any of the rights of the Canadian
Administrative Agent to any other or further action in any circumstances without
notice or demand. In the event that the Canadian Administrative Agent shall
bring any suit to enforce any of its rights hereunder and shall be entitled to
judgment, then in such suit the Canadian Administrative Agent may recover
reasonable expenses, including attorneys' fees, and the amounts thereof shall be
included in such judgment.
7.6. Discontinuance of Proceedings. In case the Canadian Administrative
-----------------------------
Agent shall have instituted any proceeding to enforce any right, power or remedy
under this Agreement by foreclosure, sale, entry or otherwise, and such
proceeding shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Canadian Administrative Agent, then and in
every such case the Assignor, the Canadian Administrative Agent and each holder
of any of the Obligations shall be restored to their former positions and rights
hereunder with respect to the Collateral subject to the security interest
created under this Agreement, and all rights, remedies and powers of the
Canadian Administrative Agent shall continue as if no such proceeding had been
instituted.
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ARTICLE 8
INDEMNITY
8.1. Indemnity. (a) The Assignor agrees to indemnify, reimburse and hold
---------
the Canadian Administrative Agent, each Secured Creditor and their respective
successors, permitted assigns, employees, agents and servants (hereinafter in
this Section 8.1 referred to individually as "Indemnitee," and collectively as
"Indemnitees") harmless from any and all liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and any and all
costs, expenses or disbursements (including reasonable attorneys' fees and
expenses) (for the purposes of this Section 8.1 the foregoing are collectively
called "expenses") of whatsoever kind and nature imposed on, asserted against or
incurred by any of the Indemnitees in any way relating to or arising out of this
Agreement, any Interest Rate Protection Agreement entered into by the Assignor,
any other Loan Document or any other document executed in connection herewith or
therewith or in any other way connected with the administration of the
transactions contemplated hereby or thereby or the enforcement of any of the
terms of, or the preservation of any rights under any thereof, or in any way
relating to or arising out of the manufacture, ownership, ordering, purchase,
delivery, control, acceptance, lease, financing, possession, operation,
condition, sale, return or other disposition, or use of the Collateral
(including, without limitation, latent or other defects, whether or not
discoverable), the violation of the laws of any country, state or other
governmental body or unit, any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or on account
of injury to or the death of any Person (including any Indemnitee), or property
damage), or contract claim; provided that no Indemnitee shall be indemnified
pursuant to this Section 8.1(a) for losses, damages or liabilities to the extent
caused by the gross negligence or wilful misconduct of such Indemnitee. The
Assignor agrees that upon written notice by any Indemnitee of the assertion of
such a liability, obligation, damage, injury, penalty, claim, demand, action,
suit or judgment, the Assignor shall assume full responsibility for the defense
thereof. Each Indemnitee agrees to use its best efforts to promptly notify the
Assignor of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of Section 8.1(a), the Assignor
agrees to pay, or reimburse the Canadian Administrative Agent for any and all
fees, costs and expenses of whatever kind or nature incurred in connection with
the creation, preservation or protection of the Canadian Administrative Agent's
Liens on, and security interest in, the Collateral, including, without
limitation, all fees and taxes in connection with the recording or filing of
instruments and documents in public offices, payment or discharge of any taxes
or Liens upon or in respect of the Collateral, premiums for insurance with
respect to the Collateral and all other fees, costs and expenses in connection
with protecting, maintaining or preserving the Collateral and the Canadian
Administrative Agent's interest therein, whether through judicial proceedings or
otherwise, or in defending or prosecuting any actions, suits or proceedings
arising out of or
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relating to the Collateral.
(c) Without limiting the application of Section 8.1(a) or (b), the
Assignor agrees to pay, indemnify and hold each Indemnitee harmless from and
against any loss, costs, damages and expenses which such Indemnitee may suffer,
expend or incur in consequence of or growing out of any misrepresentation by the
Assignor in this Agreement, any Interest Rate Protection Agreement entered into
by the Assignor, any other Loan Document or in any writing contemplated by or
made or delivered pursuant to or in connection with this Agreement, any such
Interest Rate Protection Agreement or any other Loan Document.
(d) If and to the extent that the obligations of the Assignor under this
Section 8.1 are unenforceable for any reason, the Assignor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law.
8.2. Indemnity Obligations Secured by Collateral: Survival. Any amounts
-----------------------------------------------------
paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of the Assignor contained in this Article 8 shall continue
in full force and effect notwithstanding the full payment of all the C$ Loans,
the termination of all Interest Rate Protection Agreements entered into by the
Assignor and the payment of all other Obligations and notwithstanding the
discharge thereof.
ARTICLE 9
DEFINITIONS
The following terms shall have the meanings herein specified. Such
definitions shall be equally applicable to the singular and plural forms of the
terms defined.
"Accounts" shall have the meaning provided in the PPSA.
"Agreement" shall mean this Security Agreement as the same may be
modified, supplemented or amended from time to time in accordance with its
terms.
"Assignor" shall have the meaning provided in the preamble to this
Agreement.
"Canadian Administrative Agent" shall have the meaning provided in the
recitals to this Agreement.
"Chattel Paper" shall have the meaning provided in the PPSA.
"Collateral" shall have the meaning provided in Section 1.1(a) of this
Agreement.
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"Consumer Goods" shall have the meaning provided in the PPSA.
"Contracts" shall mean all contracts between the Assignor and one or
more additional parties (including, without limitation any Interest Rate
Protection Agreements).
"Contract Rights" shall mean all rights of the Assignor (including
without limitation all rights to payment) under each Contract.
"Copyrights" shall mean any Canadian or foreign copyright owned by
Assignor, including any registrations of any Copyrights, in the Canadian
Copyright office or the equivalent thereof in any foreign country, as well as
any application for a Canadian copyright registration now or hereafter made with
the Canadian Copyright office by the Assignor.
"Credit Agreement" shall have the meaning provided in the recitals to
this Agreement.
"Credit Agreement Obligations" shall have the meaning provided in the
definition of "Obligations" in this Article 9.
"Default" shall mean any event which, with notice or lapse of time, or
both, would constitute an Event of Default.
"Documents of Title" shall have the meaning provided in the PPSA.
"Equipment" shall mean any "equipment," as such term is defined in the
PPSA, now or hereafter owned by the Assignor and, in any event, shall include,
but shall not be limited to, all machinery, equipment, furnishings, movable
trade fixtures and vehicles now or hereafter owned by the Assignor and any and
all additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
"Event of Default" shall mean any Event of Default under and as
defined in, the Credit Agreement and shall in any event, without limitation,
include any payment default on any of the Obligations after the expiration of
any applicable grace period.
"Goods" shall have the meaning provided in the PPSA.
"Indemnitee" shall have the meaning provided in Section 8.1 of this
Agreement.
"Instrument" shall have the meaning provided in the PPSA.
"Intangibles" shall have the meaning provided in the PPSA.
-24-
"Inventory" shall mean merchandise, inventory and goods, and all
additions, substitutions and replacements thereof, wherever located, together
with all goods, supplies, incidentals, packaging materials, labels, materials
and any other items used or usable in manufacturing, processing, packaging or
shipping same; in all stages of production -- from raw materials through work-
in-process to finished goods -- and all product and proceeds of whatever sort
and wherever located and any portion thereof which will be returned, rejected,
reclaimed or repossessed by the Canadian Administrative Agent from the
Assignor's customers, and shall specifically include all "inventory" as such
term is defined in the PPSA.
"Lender Creditors" shall have the meaning provided in the preamble to
this Agreement.
"Lenders" shall have the meaning provided in the recitals to this
Agreement.
"Marks" shall mean all right, title and interest in and to any
Canadian or foreign trademarks, service marks and trade names now held or
hereafter acquired by the Assignor, including any registration of any trademarks
and service marks, or the equivalent thereof in any foreign country in the
Canadian Trademark office and any trade dress including logos and/or designs
used by Assignor in Canada or any foreign country.
"Money" shall have the meaning provided in the PPSA.
"Obligations" shall mean (i) (x) the principal of and interest on the
C$ Loans made to the Assignor under the Credit Agreement and (y) all other
obligations and indebtedness (including, without limitation, indemnities, Fees
and interest thereon) of the Assignor to the C$ Lenders now existing or
hereafter incurred under, arising out of, or in connection with the Credit
Agreement and the other Loan Documents and the due performance and compliance by
the Assignor with the terms, conditions and agreements contained in the Credit
Agreement and the other Loan Documents (all such principal, interest,
obligations and liabilities being herein collectively called the "Credit
Agreement Obligations"); (ii) all obligations and liabilities owing by the
Assignor under, or with respect to, any Interest Rate Protection Agreement,
whether such Interest Rate Protection Agreement is now in existence or hereafter
arising, and the due performance and compliance by the Assignor with the terms,
conditions and agreements contained therein (all such obligations and
liabilities described in this clause (ii) being herein collectively called the
"Other Obligations"); (iii) any and all sums advanced by the Canadian
Administrative Agent in order to preserve the Collateral or preserve its
security interest in the Collateral; (iv) in the event of any proceeding for the
collection or enforcement of any indebtedness, obligations, or liabilities of
the Assignor referred to in clauses (i) and (ii) after an Event of Default shall
have occurred and be continuing, the reasonable expenses of re-taking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing on
the Collateral, or of any exercise by the Canadian Administrative Agent of its
right hereunder,
-25-
together with reasonable attorneys' fees and court costs; and (v) all amounts
paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement under Section 8.1 of this Agreement.
"Other Creditors" shall have the meaning provided in the preamble to
this Agreement.
"Other Obligations" shall have the meaning provided in the definition
of "Obligations" in this Article 9.
"Patents" shall mean any Canadian or foreign patent to which the
Assignor now or hereafter has title and any divisions or continuations thereof,
as well as any application for a Canadian or foreign patent now or hereafter
made by the Assignor.
"PPSA" means the Personal Property Security Act (Ontario) as amended
or replaced from time to time; provided that if the personal property security
laws of any other jurisdiction shall be applicable for the purpose of the
interpretation or enforcement of this Agreement or the rights and duties of the
parties hereto, the term "PPSA" for such limited purpose only shall mean the
personal property security laws of such other jurisdiction.
"Primary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Proceeds" shall have the meaning provided in the PPSA or under other
relevant law and, in any event, shall include, but not be limited to, (i) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Canadian Administrative Agent or the Assignor from time to time with respect
to any of the Collateral, (ii) any and all payments (in any form whatsoever)
made or due and payable to the Assignor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
colour of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Pro Rata Share" shall have the meaning provided in Section 7.4(b) of
this Agreement.
"Receivables" shall mean any "Account" now or hereafter owned by the
Assignor and, in any event, shall include, but shall not be limited to, all of
the Assignor's rights to payment for goods sold or leased or services performed
by the Assignor, whether now in existence or arising from time to time
hereafter, including, without limitation, rights evidenced by an Account, note,
contract, security agreement, Chattel Paper, or other evidence of indebtedness
or security, together with (a) all security pledged, assigned, hypothecated or
-26-
granted to or held by the Assignor to secure the foregoing, (b) all of the
Assignor's right, title and interest in and to any Goods, the sale of which gave
rise thereto, (c) all guarantees, endorsements and indemnifications on, or of,
any of the foregoing, (d) all powers of attorney for the execution of any
evidence of indebtedness or security or other writing in connection therewith,
(e) all books, records, ledger cards, and invoices relating thereto, (f) all
evidences of the filing of financing statements and other statements and the
registration of other instruments in connection therewith and amendments
thereto, notices to other creditors or secured parties, and certificates from
filing or other registration officers, (g) all credit information, reports and
memoranda relating thereto, and (h) all other writings related in any way to the
foregoing.
"Secondary Obligations" shall have the meaning provided in Section
7.4(b) of this Agreement.
"Secured Creditors" shall have the meaning provided in the preamble to
this Agreement.
"Security" shall have the meaning provided in the PPSA.
"Termination Date" shall have the meaning provided in Section 10.9 of
this Agreement.
"Trade Secret Rights" shall have the meaning provided in Section 5.1
of this Agreement.
-27-
ARTICLE 10
MISCELLANEOUS
10.1. Notices. Except as otherwise specified herein, all notices,
-------
requests, demands or other communications to or upon the respective parties
hereto shall be deemed to have been duly given or made when delivered to the
party to which such notice, request, demand or other communication is required
or permitted to be given or made under this Agreement, addressed:
(a) if to the Assignor, to:
Xxxxxx Xxxxx Command Company
000 Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Fax: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxx
X.X. Xxx 00
Xxxxx 0000
1 First Canadian Place
Toronto, Ontario, Canada
M5X 1B1
Attention: Xxxxxxxx X. Leblovic
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Canadian Administrative Agent:
Canadian Imperial Bank of Commerce
Commerce Court West
7th Floor
Toronto, Canada
M5H 3A9
Attn: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
(c) if to any Lender Creditor (other than the Canadian Administrative
Agent), either (x) to the Canadian Administrative Agent, at the address of the
Canadian Administrative Agent
-28-
specified above, or (y) at such address as such Lender Creditor shall have
specified in the Credit Agreement;
(d) if to any Other Creditor at such address as the Other Creditors shall
have specified in writing to the Assignor and the Canadian Administrative Agent;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
10.2 Waiver; Amendment. None of the terms or provisions of this Agreement
-----------------
may be waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Assignor and the Canadian Administrative Agent,
provided that any provision of this Agreement imposing obligations on the
Assignor may be waived by the Canadian Administrative Agent in a written
instrument executed by the Canadian Administrative Agent.
10.3 Obligations Absolute. The obligations of the Assignor hereunder
--------------------
shall remain in full force and effect without regard to, and shall not be
impaired by, (a) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of the Assignor; (b) any
exercise or non-exercise, or any waiver of, any right, remedy, power or
privilege under or in respect of this Agreement, any other Loan Document or any
Interest Rate Protection Agreement; or (c) any amendment to or modification of
any Loan Document or any Interest Rate Protection Agreement or any security for
any of the Obligations; whether or not the Assignor shall have notice or
knowledge of any of the foregoing.
10.4 Successors and Assigns. This Agreement shall be binding upon the
----------------------
Assignor and its successors and assigns and shall inure to the benefit of the
Canadian Administrative Agent and its successors and assigns; provided, that
--------
the Assignor may not transfer or assign any or all of its rights or obligations
hereunder without the prior written consent of the Canadian Administrative
Agent. All agreements, statements, representations and warranties made by the
Assignor herein or in any certificate or other instrument delivered by the
Assignor or on its behalf under this Agreement shall be considered to have been
relied upon by the Secured Creditors and shall survive the execution and
delivery of this Agreement, the other Loan Documents and the Interest Rate
Protection Agreements entered into from time to time by the Assignor regardless
of any investigation made by the Secured Creditors or on their behalf.
10.5 Headings Descriptive. The headings of the several sections of this
--------------------
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
10.6 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
-29-
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
10.7 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAWS OF THE PROVINCE OF ONTARIO.
10.8 Assignor's Duties. It is expressly agreed, anything herein
-----------------
contained to the contrary notwithstanding, that the Assignor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Canadian Administrative Agent shall not have any obligations
or liabilities with respect to any Collateral by reason of or acting out of this
Agreement, nor shall the Canadian Administrative Agent be required or obligated
in any manner to perform or fulfil any of the obligations of the Assignor under
or with respect to any Collateral.
10.9 Termination: Release. (a) After the Termination Date, this
--------------------
Agreement shall terminate and the Canadian Administrative Agent, at the request
and expense of the Assignor, will promptly execute and deliver to the Assignor a
proper instrument or instruments (including financing change statements under
the PPSA) acknowledging the satisfaction and termination of this Agreement, and
will duly assign, transfer and deliver to the Assignor (without recourse and
without any representation or warranty) such of the Collateral of the Assignor
as may be in the possession of the Canadian Administrative Agent and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement, "Termination Date" shall mean the date
upon which each of the C$ Commitments and all Interest Rate Protection
Agreements entered into by the Assignor have been terminated, no principal or
interest remains unpaid in respect of C$ Loans and all other Obligations have
been paid in full.
(b) In the event that any part of the Collateral is sold in connection
with a sale permitted by Section 8.2 of the Credit Agreement or is otherwise
released at the direction of the Required Lenders (or all the Lenders if
required by Section 11.1 of the Credit Agreement) and so long as the Assignor
certifies to the Canadian Administrative Agent that the proceeds of such sale or
sales or from such release have been applied in the manner, if any, required by
Section 4.4 of the Credit Agreement, the Canadian Administrative Agent, at the
request and expense of the Assignor, will duly assign, transfer and deliver to
the Assignor (without recourse and without any representation or warranty) such
of the Collateral as is then being (or has been) so sold or released and as may
be in the possession of the Canadian Administrative Agent and has not
theretofore been released pursuant to this Agreement.
(c) At any time that the Assignor desires that Collateral be released as
provided in the foregoing Section 10.9(a) or (b), it shall deliver to the
Canadian Administrative Agent a
-30-
certificate signed by its chief financial officer or controller stating that the
release of the respective Collateral is permitted pursuant to Section 10.9(a) or
(b). If requested by the Canadian Administrative Agent (although the Canadian
Administrative Agent shall have no obligation to make any such request), the
Assignor shall furnish appropriate legal opinions (from counsel acceptable to
the Canadian Administrative Agent) to the effect set forth in the immediately
preceding sentence, which opinion may as to factual matters rely on an officer's
certificate of the Assignor.
10.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with Assignor and the
Canadian Administrative Agent.
10.11 The Canadian Administrative Agent. The Canadian Administrative Agent
---------------------------------
will hold in accordance with this Agreement all items of the Collateral at any
time received under this Agreement. It is expressly understood and agreed that
the obligations of the Canadian Administrative Agent as holder of the Collateral
and interest therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement. The
Canadian Administrative Agent shall act hereunder on the terms and conditions
set forth in Annex K hereto. By accepting the benefits hereof, each Secured
Creditor shall be deemed to have agreed to the terms and conditions set forth in
Annex K hereto, which are incorporated herein by reference in their entirety.
10.12 Conflict. In the event of and to the extent of any conflict or
--------
inconsistency between the provisions of this Agreement and those of the Credit
Agreement, those of the Credit Agreement shall prevail.
10.13 Acknowledgements. The Assignor:
----------------
(a) acknowledges receipt of a true copy of this Agreement; and
(b) acknowledges receipt of copies of the financing statements registered
under the PPSA evidencing the security interest granted herein.
-31-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
XXXXXX XXXXX COMMAND COMPANY
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
By:
------------------------------------
Name:
CANADIAN IMPERIAL BANK OF
COMMERCE
as Canadian Administrative Agent
By:
------------------------------------
Name: Xxxxx Xxxxxxxxx. Director
By:
------------------------------------
Name:
Exhibit G to
Credit Agreement
----------------
PLEDGE AND INTERCREDITOR AGREEMENT
PLEDGE AND INTERCREDITOR AGREEMENT, dated as of August 13, 1996, by and
among (a) PLC COMMAND I, L.P., a Pennsylvania limited partnership ("PLC I"), PLC
-----
COMMAND II, L.P., a Pennsylvania limited partnership ("PLC II" and, together
------
with PLC I, the "Pledgors"), (b) CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK
--------
AGENCY, as collateral agent (together with its successors in such capacity, the
"Collateral Agent") for (i) the lenders (the "Lenders") from time to time
---------------- -------
parties to the Credit Agreement (as hereinafter defined) and CANADIAN IMPERIAL
BANK OF COMMERCE, NEW YORK AGENCY, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders and (ii) the holders from time to
--------------------
time (the "Holders") of the 11 1/8% Senior Subordinated Notes due 2006 ( or any
-------
Exchange Notes or Private Exchange Notes that are issued pursuant to the
Indenture (as defined below), collectively, the "Notes") of Xxxxxx Xxxxx Corp.
-----
(the "Company") and UNITED STATES TRUST COMPANY OF NEW YORK, a New York
-------
corporation, as trustee (together with its successors in such capacity, the
"Trustee") for the Holders in accordance with the Indenture (as defined below),
-------
(c) the Administrative Agent and (d) the Trustee.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, dated as of August 13, 1996 (as
amended, supplemented or otherwise modified from time to time, the "Credit
------
Agreement"), among the Company, Xxxxxx Xxxxx Command Company (together with the
---------
Company, the "Borrowers"), the Lenders and the administrative agents named
---------
therein, including, without limitation, the Administrative Agent (the
"Administrative Agents"), the Lenders have agreed to make loans (the "Loans") to
--------------------- -----
the Borrowers upon the terms and subject to the conditions set forth therein;
WHEREAS, pursuant to the Indenture, dated as of July 15, 1996 (as amended,
supplemented or otherwise modified from time to time (or replaced, in connection
with the Exchange Offer or Private Exchange), the "Indenture"), between the
---------
Company and the Trustee, the Company has issued the Notes to the Holders, upon
the terms and subject to the conditions set forth therein;
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective Loans to the Borrowers under the Credit Agreement that
each Pledgor shall have executed and delivered this Pledge and Intercreditor
Agreement to the Collateral
2
Agent for the benefit of the Lenders and the Administrative Agents a first lien
on the Pledged Stock (as hereinafter defined);
WHEREAS, pursuant to the Indenture, the Company has agreed to cause each
Pledgor to grant to the Collateral Agent for the benefit of Holders and the
Trustee a second lien on the Pledged Stock;
WHEREAS, each Pledgor is a Subsidiary of the Company, and it is to the
advantage of such Pledgor that the Lenders make the Loans to, and the Holders
purchase the Notes from, the Company;
WHEREAS, each Pledgor is the legal and beneficial owner of the shares of
the Pledged Stock pledged by it hereunder;
WHEREAS, pursuant to the Credit Agreement, the Administrative Agent has
been granted the authority to act on behalf of all Lenders with respect to
matters specified herein, including the execution and delivery of this Pledge
and Intercreditor Agreement, and pursuant to the Indenture, the Trustee has been
granted the authority to act on behalf of all Holders with respect to matters
specified therein, including the execution and delivery of this Pledge and
Intercreditor Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration the receipt and adequacy of which is hereby acknowledged,
the parties hereby agree as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in
-------------
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement, and the following terms shall have the following meanings:
"Agreement": this Pledge and Intercreditor Agreement, as the same may
---------
be amended, modified or otherwise supplemented from time to time.
"Code": the Uniform Commercial Code from time to time in effect in
----
the State of New York.
"Collateral": the Pledged Stock and all Proceeds.
----------
"Collateral Account": any account established to hold money Proceeds,
------------------
maintained under the sole dominion and control of the Collateral Agent,
subject to withdrawal by the Collateral Agent for the account of the
Secured Parties only as provided in paragraph 9(a).
3
"Event of Default": until the Senior Secured Obligations shall have
----------------
been paid in full and the Commitments shall have expired or terminated, as
defined in the Credit Agreement and, thereafter, as defined in the
Indenture.
"Exchange Notes": as defined in the Registration Rights Agreement.
--------------
"Exchange Offer": as defined in the Registration Rights Agreement.
--------------
"Insolvency Event: (i) Either Pledgor commencing any case, proceeding
----------------
or other action (x) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
conservatorship 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 (y) 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 either Pledgor making a general assignment for the
benefit of its creditors; or (ii) there being commenced against either
Pledgor any case, proceeding or other action of a nature referred to in
clause (i) above which (x) results in the entry of an order for relief or
any such adjudication or appointment or (y) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there being
commenced against either Pledgor 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) either Pledgor taking 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.
"Issuer": Xxxxxx Xxxxx Command Company, a company incorporated under
------
the laws of Nova Scotia.
"Pledged Stock": the shares of capital stock listed on Schedule 1
------------- ----------
hereto, together with all stock certificates, options or rights of any
nature whatsoever with respect to the Issuer's Capital Stock that may be
issued or granted by the Issuer to either Pledgor in respect of the Pledged
Stock while this Agreement is in effect.
"Private Exchange": as defined in the Registration Rights Agreement.
----------------
"Private Exchange Notes": as defined in the Registration Rights
----------------------
Agreement.
"Proceeds": all "proceeds" as such term is defined in Section 9-
--------
306(1) of the Uniform Commercial Code in effect in the State of New York on
the date hereof
4
and, in any event, shall include, without limitation, all dividends or
other income from the Pledged Stock, collections thereon or distributions
with respect thereto.
"Registration Rights Agreement": the Registration Rights Agreement
-----------------------------
dated as of July 23, 1996 between the Company and CIBC Wood Gundy
Securities Corp.
"Secured Obligations": the Senior Secured Obligations and the
-------------------
Subordinated Secured Obligations.
"Secured Parties": collectively, the Senior Secured Parties and the
---------------
Subordinated Secured Parties.
"Securities Act": the Securities Act of 1933, as amended.
--------------
"Senior Secured Obligations": the collective reference to:
--------------------------
(a) unpaid principal of and interest on the Loans and all other
obligations and liabilities of the Borrowers to the Administrative Agents
and the Lenders (including, without limitation, interest accruing at the
then applicable rate provided in the Credit Agreement after the maturity of
the Loans and interest accruing at the then applicable rate provided in the
Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating
to either Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), 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, the Credit
Agreement, this Agreement, the other Loan Documents or any other document
made, delivered or given in connection therewith;
(b) all obligations and liabilities of each Pledgor which may arise
under or in connection with this Agreement or any other Loan Document to
which such Pledgor is a party; and
(c) all obligations of the Borrowers with respect to any Interest Rate
Protection Agreement entered into with any Lender.
"Senior Secured Parties": the Administrative Agents and the Lenders.
----------------------
"Subordinated Secured Obligations": the unpaid principal of and
--------------------------------
interest on the Notes and all other obligations and liabilities of the
Company to the Trustee and the Holders (including, without limitation,
interest accruing at the then applicable rate provided in the Indenture
after the maturity of the Notes and interest accruing at the then
applicable rate provided in the Indenture after the filing of any petition
in
5
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to either Borrower, whether or not a claim for post-
filing or post-petition interest is allowed in such proceeding), 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, the Notes, the Indenture or this Agreement.
"Subordinated Secured Parties": the Trustee and the Holders.
----------------------------
(b) 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 and paragraph
references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interests. (a) Each Pledgor hereby
-----------------------------------
mortgages, pledges and assigns the Collateral to the Collateral Agent, for the
benefit of the Senior Secured Parties, and grants to the Collateral Agent, for
the benefit of the Senior Secured Parties, a security interest in the
Collateral, in each case as collateral security on a first priority basis for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Senior Secured Obligations.
(b) Each Pledgor hereby mortgages, pledges and assigns the Collateral to
the Collateral Agent, for the benefit of the Subordinated Secured Parties, and
grants to the Collateral Agent, for the benefit of the Subordinated Secured
Parties, a security interest in the Collateral, in each case as collateral
security on a second priority basis for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Subordinated Secured Obligations.
(c) As set forth in the separate granting clauses contained in paragraphs
(a) and (b) above, it is the intent of the parties hereto that this Agreement
shall create two separate and distinct Liens in favor of the Collateral Agent,
the first for the benefit of the Senior Secured Parties and the second for the
benefit of the Subordinated Secured Parties.
3. Subordination of Lien of Subordinated Secured Parties; Bailment. (a)
---------------------------------------------------------------
The Trustee acknowledges and agrees that (1) any interest that it or any Holder
has or may have in the Collateral shall be junior and subordinate to the
interest of the Senior Secured Parties, (2) prior to the date on which the
Senior Secured Obligations have been paid in full and the Commitments shall have
expired or been terminated, it will not take any action to enforce any rights it
may have hereunder, without the prior written consent of the Administrative
Agent; and (3) prior to the date on which the Senior Secured Obligations
6
have been paid in full, any consent given in accordance with the terms of this
Agreement by the Collateral Agent at the direction of the Administrative Agent
to any amendment, waiver or other modification in respect of the obligations of
each Pledgor hereunder shall be binding upon the Subordinated Secured Parties
with respect to any similar obligations of each Pledgor hereunder as fully as if
such consent had been given by the Subordinated Secured Parties.
(b) The Trustee appoints and authorizes the Collateral Agent, and the
Collateral Agent accepts such appointment and authorization by the Trustee, to
act as the agent of, and bailee for, the Subordinated Secured Parties to hold
for the benefit of the Subordinated Secured Parties those shares of the Pledged
Stock evidenced by certificates, subject, however, to the prior security
interest therein and rights thereto and to the proceeds thereof of the Senior
Secured Parties.
4. Stock Powers. Concurrently with the delivery to the Collateral Agent
------------
of each certificate representing one or more shares of Pledged Stock, each
Pledgor shall deliver an undated stock power, or such other instrument of
transfer as may be reasonably requested by the Collateral Agent, covering such
certificate, duly executed in blank by such Pledgor with, if the Collateral
Agent so requests, signature guaranteed.
5. Representations and Warranties. Each Pledgor hereby represents and
------------------------------
warrants that:
(a) Such Pledgor has the partnership power and authority and the legal
right to execute and deliver, to perform its obligations under, and to grant the
first and second security interests in the Collateral pursuant to, this
Agreement and has taken all necessary action to authorize its execution,
delivery and performance of, and grant each of the security interests in the
Collateral pursuant to, this Agreement.
(b) This Agreement constitutes a legal, valid and binding obligation of
such Pledgor, enforceable in accordance with its terms , except as
enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(c) The execution, delivery and performance of this Agreement will not
violate any provision of any Requirement of Law or Contractual Obligation of
such Pledgor and will not result in the creation or imposition of any Lien on
any of the properties or revenues of such Pledgor pursuant to any Requirement of
Law or Contractual Obligation of such Pledgor, except the security interests
created by this Agreement.
7
(d) No consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority, and no consent of any
other Person (including, without limitation, any stockholder or creditor of such
Pledgor), is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement.
(e) No litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the knowledge of such Pledgor,
threatened by or against such Pledgor or against any of its properties or
revenues with respect to this Agreement or any of the transactions contemplated
hereby.
(f) The shares of Pledged Stock constitute 65% of the issued and
outstanding shares of all classes of the Capital Stock of the Issuer.
(g) All the shares of the Pledged Stock have been duly and validly issued
and are fully paid and nonassessable.
(h) Such Pledgor is the record and beneficial owner of, and has good and
marketable title to, the shares of Pledged Stock pledged by such Pledgor, free
of any and all Liens or options in favor of, or claims of, any other Person,
except for the separate and distinct security interests granted to the Senior
Secured Parties, on the one hand, and the Subordinated Secured Parties, on the
other hand, pursuant to this Agreement.
(i) Upon delivery to the Collateral Agent of the stock certificates
evidencing the Pledged Stock and assuming continuous possession by the
Collateral Agent of such certificates, each of the security interests granted
pursuant to this Agreement will constitute a separate, distinct and valid
perfected security interest in the Pledged Stock in favor of the Collateral
Agent, for the benefit of the Senior Secured Parties, on the one hand, and the
Subordinated Secured Parties, on the other hand, enforceable in accordance with
its terms against all creditors of such Pledgor and any Persons purporting to
purchase any shares of Pledged Stock from such Pledgor.
6. Covenants. Each Pledgor covenants and agrees with the Collateral Agent
---------
and the Secured Parties that, from and after the date of this Agreement until
this Agreement is terminated and the security interests created hereby are
released:
(a) If such Pledgor shall, as a result of its ownership of the Pledged
Stock, become entitled to receive or shall receive any stock certificate
(including, without limitation, any certificate representing a stock dividend or
a distribution in connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any reorganization), option
or rights to Capital Stock, whether in addition to, in substitution of, as a
conversion of, or in exchange for any shares of the Pledged Stock, or otherwise
in respect thereof, such Pledgor shall accept the same as the agent of the
Collateral Agent and the Secured Parties, hold the same in trust for the
Collateral Agent and the Secured Parties
8
and deliver the same forthwith to the Collateral Agent in the exact form
received, duly indorsed by such Pledgor to the Collateral Agent, if required,
together with an undated stock power, or such other instrument of transfer as
may be reasonably requested by the Collateral Agent, covering such certificate
duly executed in blank by such Pledgor and with, if the Collateral Agent so
requests, signature guaranteed, to be held by the Collateral Agent, subject to
the terms hereof, as additional collateral security for the Secured Obligations.
Any sums paid upon or in respect of the Pledged Stock upon the liquidation or
dissolution of the Issuer shall be paid over to the Collateral Agent to be held
by it hereunder as additional collateral security for the Secured Obligations,
and in case any distribution of capital shall be made on or in respect of the
Pledged Stock or any property shall be distributed upon or with respect to the
Pledged Stock pursuant to the recapitalization or reclassification of the
capital of the Issuer or pursuant to the reorganization thereof, the property so
distributed shall be delivered to the Collateral Agent to be held by it
hereunder as additional collateral security for the Secured Obligations, unless,
in either case, such sums or property are distributed or otherwise paid to the
holders of the equity interests of such Pledgor. Subject to the "unless" clause
at the end of the previous sentence, if any sums of money or property so paid or
distributed in respect of the Pledged Stock shall be received by such Pledgor,
such Pledgor shall, until such money or property is paid or delivered to the
Collateral Agent, hold such money or property in trust for the Secured Parties,
segregated from other funds of such Pledgor, as additional collateral security
for the Secured Obligations.
(b) Without the prior written consent of the Administrative Agent, such
Pledgor will not (1) vote to enable, or take any other action to permit, the
Issuer to issue any stock or other equity securities of any nature or to issue
any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of the Issuer
except as permitted in the Credit Agreement, (2) sell, assign, transfer,
exchange, or otherwise dispose of, or grant any option with respect to, the
Collateral except as permitted in the Credit Agreement, (3) create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Collateral, or any interest therein, except for the
security interests created by this Agreement or (4) enter into any agreement or
undertaking restricting the right or ability of such Pledgor or the Collateral
Agent to sell, assign or transfer any of the Collateral except as provided for
in this Agreement, the Credit Agreement and the Indenture.
(c) Such Pledgor shall not take any action inconsistent with maintaining
(i) the security interest created by Paragraph 2(a) of this Agreement as a
first, perfected security interest and (ii) the security interest created by
Paragraph 2(b) of this Agreement as a second, perfected security interest and,
in each case of clauses (i) and (ii), shall defend such security interest
against claims and demands of all Persons whomsoever.
(d) At any time and from time to time, upon the written request of the
Collateral Agent, and at the sole expense of such Pledgor, such Pledgor will
promptly and duly
9
execute and deliver such further instruments and documents and take such further
actions as the Collateral Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted. If any amount payable under or in connection with
any of the Collateral shall be or become evidenced by any promissory note, other
instrument or chattel paper, such note, instrument or chattel paper shall be
immediately delivered to the Collateral Agent, duly endorsed in a manner
satisfactory to the Collateral Agent, to be held as Collateral pursuant to this
Agreement.
(e) Such Pledgor shall pay, and save the Collateral Agent and the Secured
Parties harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other similar
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
7. Cash Dividends; Voting Rights. Unless an Event of Default shall have
-----------------------------
occurred and be continuing and the Collateral Agent shall have given notice to
the Pledgors of the Collateral Agent's intent to exercise its corresponding
rights pursuant to Section 9 below, each Pledgor shall be permitted to receive
all cash dividends or other distributions paid in the normal course of business
of the Issuer, to the extent permitted in the Credit Agreement, in respect of
the Pledged Stock and to exercise all voting and corporate rights with respect
to the Pledged Stock; provided, however, that no vote shall be cast or corporate
-------- -------
right exercised or other action taken which, in the Collateral Agent's
reasonable judgment, would impair the Pledged Stock or which would be
inconsistent with or result in any violation of any provision of the Credit
Agreement, any other Loan Document, any Notes, the Indenture or this Agreement.
8. Rights of the Secured Parties and the Collateral Agent. (a) All money
------------------------------------------------------
Proceeds received by the Collateral Agent hereunder shall be held by the
Collateral Agent for the benefit of the Secured Parties in a Collateral Account.
All Proceeds while held by the Collateral Agent in a Collateral Account (or by
each Pledgor in trust for the Collateral Agent and the Secured Parties) shall
continue to be held as collateral security for all the Secured Obligations and
shall not constitute payment thereof until applied as provided in Paragraph
10(c).
(b) If an Event of Default shall occur and be continuing and the
Collateral Agent shall give notice of its intent to exercise any of such rights
to each Pledgor (1) the Collateral Agent shall have the right to receive any and
all cash dividends paid in respect of the Pledged Stock and make application
thereof to the Secured Obligations in the order provided in Paragraph 10(c), and
(2) all shares of the Pledged Stock shall be registered in the name of the
Collateral Agent or its nominee, and the Collateral Agent or its nominee may
thereafter exercise (A) all voting, corporate and other rights pertaining to
such shares of the Pledged Stock at any meeting of shareholders of the Issuer or
otherwise and (B) any and all rights of conversion, exchange, subscription and
any other rights, privileges or
10
options pertaining to such shares of the Pledged Stock as if it were the
absolute owner thereof (including, without limitation, the right to exchange at
its discretion any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of the Issuer, or upon the exercise by either Pledgor or the
Collateral Agent of any right, privilege or option pertaining to such shares of
the Pledged Stock, and in connection therewith, the right to deposit and deliver
any and all of the Pledged Stock with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the
Collateral Agent may determine), all without liability except to account for
property actually received by it, but the Collateral Agent shall have no duty to
either Pledgee to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.
9. Remedies. (a) If an Event of Default shall have occurred and be
--------
continuing, at any time at the Collateral Agent's election, the Collateral Agent
may apply all or any part of Proceeds held in any Collateral Account in payment
of the Secured Obligations in such order as provided in Paragraph 10(c).
(b) If an Event of Default shall have occurred and be continuing, the
Collateral Agent, on behalf of the Secured Parties, may exercise, in addition to
all other rights and remedies granted in this Agreement and in any other
instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party with respect to the
Collateral under the Code. Without limiting the generality of the foregoing,
the Collateral Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon either Pledgor or any other Person
(all and each of which demands, defenses, advertisements and notices are hereby
waived), may in such circumstances forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
assign, give option or options to purchase or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange, broker's board or office of the Collateral Agent or any
Lender or Holder or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Collateral Agent or
any other Secured Party shall have the right upon any such public sale or sales,
and, to the extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in either Pledgor, which right or equity is hereby waived
or released. The Collateral Agent shall apply any Proceeds from time to time
held by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Collateral Agent and the Secured Parties hereunder, including,
without limitation, reasonable attorneys' fees and disbursements of
11
counsel to the Collateral Agent, to the payment in whole or in part of the
Secured Obligations, in the order provided in Paragraph 10(c), and only after
such application and after the payment by the Collateral Agent of any other
amount required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Collateral Agent account for the surplus, if
any, to the Pledgors. To the extent permitted by applicable law, each Pledgor
waives all claims, damages and demands it may acquire against the Collateral
Agent or any other Secured Party arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition.
10. Rights in Collateral; Application of Payments and Proceeds. (a)
----------------------------------------------------------
Notwithstanding anything to the contrary contained in any agreement, document or
instrument in favor of the Subordinated Secured Parties and irrespective of:
(1) the time, order or method of attachment or perfection of the
security interests created hereby,
(2) the time or order of filing or recording of financing statements
or other documents filed or recorded to perfect security interests in any
Collateral,
(3) anything contained in any filing or agreement to which the Senior
Secured Parties or the Subordinated Secured Parties now or hereafter may be
a party, and
(4) the rules for determining priority under the Code or any other
law governing the relative priorities of secured creditors,
any security interest in the Collateral in favor of the Senior Secured Parties
has and shall have priority, to the extent of any unpaid Senior Secured
Obligations, over any security interest in such Collateral in favor of the
Subordinated Secured Parties.
(b) In exercising rights and remedies with respect to the Collateral, the
Collateral Agent may enforce the provisions hereof and exercise remedies
hereunder, all in such order and in such manner as the Senior Secured Parties
may determine in the exercise of their sole business judgment. Such exercise
and enforcement shall include, without limitation, the rights to collect, sell,
dispose of or otherwise realize upon all or any part of the Collateral, to incur
expenses in connection with such collection, sale, disposition or other
realization and to exercise all the rights and remedies of a secured lender
under the Code of any applicable jurisdiction. The Subordinated Secured Parties
hereby (1) waive any right that they may have (whether by contract, by law or
otherwise) to require the Collateral Agent to give notice of any collection,
sale, disposition or other realization of or upon any or all of the Collateral
contemplated by this Agreement or any such right the Subordinated
12
Secured Parties may have to object to or otherwise contest any such collection,
sale, disposition or other realization of or upon any or all of the Collateral
by the Senior Secured Parties (including, without limitation, any requirement
that the Collateral Agent foreclose upon such Collateral under applicable law)
and (2) agrees not to contest or otherwise challenge any such collection, sale,
disposition or other realization of or upon all or any of the Collateral or to
assert any claim or defense that any such collection, sale, disposition or other
realization of or upon all or any part of the Collateral was not commercially
reasonable or otherwise failed to comply in any respect with applicable law.
(c) Any money, property or securities realized upon the sale, disposition
or other realization by the Collateral Agent or the Subordinated Secured
Parties, as the case may be, upon all or any part of the Collateral (including,
without limitation, any payment or distribution of assets of either Pledgor
consisting of, or in respect of, Collateral, whether in cash, property or
securities during the continuance of an Insolvency Event with respect to such
Pledgor) (collectively, "Realizations"), shall be applied in the following
------------
order:
(1) First, to the payment in full of all reasonable costs and
-----
expenses (including, without limitation, attorneys' reasonable fees and
disbursements) paid or incurred by the Collateral Agent in connection with
the such Realization or the protection of its rights and interests in the
Collateral;
(2) Second, to the Administrative Agent to be applied to the payment
------
in full of all Senior Secured Obligations then due and payable in such
order as the Administrative Agent may elect in its sole discretion;
(3) Third, to the Trustee to be applied to the payment in full of all
-----
Subordinated Secured Obligations then due and payable in such order as the
Trustee may elect in its sole discretion; and
(4) Fourth, to pay to the applicable Pledgor, or its representative
------
or as a court of competent jurisdiction may direct, any surplus then
remaining.
(d) Prior to the indefeasible payment in full of the Senior Secured
Obligations and the termination or expiration of the Commitments under the
Credit Agreement, the Subordinated Secured Parties shall not (1) enforce or
apply any security interest in all or any of the Collateral, (2) collect or
receive any proceeds of any of the Collateral or otherwise enforce or apply any
security interest in the proceeds of any of the Collateral; or (3) in any other
manner interfere with the security interest granted in favor of the Senior
Secured Parties in any of the Collateral (or the proceeds thereof). In
addition, the Subordinated Secured Parties hereby (x) agree not to assert any
claim for marshalling; (y) consent to the collection, sale, disposition or other
realization of or upon all or any of the Collateral by the Collateral Agent free
of any security interest therein in favor of the Subordinated Secured Parties;
and (z) at the sole cost and expense of the Pledgors, agree to
13
execute all such releases and other documents that the Administrative Agent may
reasonably request in writing to facilitate the collection, sale, disposition or
other realization of or upon any or all of the Collateral by the Collateral
Agent (including, without limitation, the termination of any security interests
in any of the Collateral in favor of the Subordinated Secured Parties
concurrently with such sale, disposition or other realization).
(e) If any payment or distribution, whether consisting of money, property
or securities, from any Realizations is collected or received by the
Subordinated Secured Parties in respect of the Subordinated Secured Obligations
in violation of Paragraph 10(d), the Subordinated Secured Parties shall
forthwith deliver the same to the Collateral Agent, in the form received, duly
indorsed to the Collateral Agent, if required, to be applied to the payment or
prepayment of the Senior Secured Obligations until the Senior Secured
Obligations are paid in full. Until so delivered, such payment or distribution
shall be held in trust by the Subordinated Secured Parties as the property of
the Senior Secured Paries, segregated from other funds and property held by the
Subordinated Secured Parties.
11. Release of Pledged Stock. The Collateral Agent agrees that it will
------------------------
not release or otherwise dispose of any of the Pledged Stock except (a) to the
Trustee in accordance with the terms hereof, unless instructed by the Trustee to
the contrary, or (b) in the exercise of its remedies under the terms hereof or
(c) to the respective Pledgor upon satisfaction of all Secured Obligations.
12. Obligations of the Collateral Agent. (a) Unless the Collateral Agent
-----------------------------------
has theretofore received a written notice from the Trustee to the effect that
the Subordinated Secured Obligations have been paid in full, if the Collateral
Agent shall have resigned as collateral agent hereunder, not later than the
tenth business day following the day on which the Senior Secured Obligations
have been paid in full and the Commitments shall have expired or terminated, the
Collateral Agent will deliver at the cost and expense of the Pledgors, directly
to the successor collateral agent appointed in accordance with Section 15(h) or,
if prior to such tenth business day the Collateral Agent shall not have received
notification of the identity of such successor collateral agent, to the Trustee,
all the certificates representing the Pledged Stock then remaining in the
possession of the Collateral Agent, together with any necessary instruments of
assignment or transfer pertaining thereto. Each Pledgor agrees to give written
notice to the Trustee of the payment in full of the Senior Secured Obligations
and the termination or expiration of the Commitments within three business days
thereof, and, after receipt of such notice, the Subordinated Secured Parties
agree to promptly give written notice to the Collateral Agent requesting
delivery of the Pledged Stock. In no event shall the Collateral Agent relinquish
control over such certificates representing the Pledged Stock after the Senior
Secured Obligations have been paid in full and the Commitments under the Credit
Agreement shall have terminated or expired, except as set forth in this Section
or Section 11(c).
14
(b) In taking any action hereunder (including the giving of consents and
waivers hereunder) prior to the indefeasible payment in full of the Senior
Secured Obligations and the termination or expiration of the Commitments, the
Collateral Agent shall not be obligated to consider the interests of the
Subordinated Secured Parties except as set forth in Paragraph 12(a) or Paragraph
21.
13. Dispositions of Collateral. Notwithstanding any provision to the
--------------------------
contrary contained in any agreement, document or instrument in favor of the
Subordinated Secured Parties or to which any of the Subordinated Secured Parties
is a party,
(a) upon the occurrence of any sale, lease, transfer or other
disposition of any of the Collateral (a "Disposition"), as between the
-----------
Senior Secured Parties and the Subordinated Secured Parties, until the
Senior Secured Obligations have been paid in full and the Commitment shall
have expired or been terminated, all Collateral, including all proceeds
thereof and all prepayments or distributions in respect thereof, shall be
distributed or applied or paid to the Administrative Agent, acting on
behalf of the Senior Secured Parties, for application to the Senior Secured
Obligations without obtaining any further consent or agreement of the
Subordinated Secured Parties and in any manner as the Administrative Agent
may determine, and the Subordinated Secured Parties shall be deemed to have
consented to such Disposition and no further consent thereto or notice or
accounting in respect thereof on the part of any such Person shall be
required, and until the Senior Secured Obligations are paid in full and the
Commitments shall have expired or been terminated, none of such Collateral
shall be distributed or paid to (or retained by) the Subordinated Secured
Parties for application to the Subordinated Secured Obligations, and the
Subordinated Secured Parties shall not have any right to restrict or
permit, or approve or disapprove, any Disposition of all or any portion or
item of the Collateral. If the Collateral Agent is in possession of any
proceeds from any Disposition of any Collateral following payment in full
of all Senior Secured Obligations and the termination or expiration of all
Commitments, the Collateral Agent shall deliver such remaining proceeds to
the Trustee if any Subordinated Secured Obligations shall be then
outstanding (which each Pledgor hereby irrevocably consents to) or to each
Pledgor or its successors or assigns if the Trustee shall agree in writing,
or to whomever may be lawfully entrusted to receive the same as a court of
competent jurisdiction shall so direct; and
(b) the Subordinated Secured Parties will, immediately upon the
request of the Administrative Agent acting on behalf of the Lenders,
release or otherwise terminate and discharge the subordinated lien in any
Collateral to the extent such Collateral is the subject of a Disposition,
and will deliver to the Collateral Agent all documents and instruments
reasonably deemed by the Collateral Agent to be necessary or appropriate in
connection therewith. In the event that the Collateral Agent, acting on
behalf of the Senior Secured Parties, settles, adjusts or
15
compromises any claim in respect of all or any portion or item of
Collateral, including, without limitation, any settlement, adjustment or
compromise made in connection with any bankruptcy, reorganization, or
insolvency proceeding by or against either Pledgor or Subsidiary of either
of them, or accepts or is required to accept substitute or replacement
collateral in exchange for or in lieu of or in full or partial settlement
of any Collateral, the Subordinated Secured Parties shall be bound by any
such settlement, adjustment or compromise, and shall, immediately upon the
request of the Collateral Agent, confirm its consent to the same and
release any claim that the Subordinated Secured Parties might otherwise
have in respect of such Collateral; provided that the Subordinated Secured
Parties shall be granted a lien and security interest in any such
substitute or replacement Collateral, which lien and security interest
shall constitute a subordinated lien.
14. Irrevocable Authorization and Instruction to Issuer. Each Pledgor
---------------------------------------------------
hereby authorizes and instructs the Issuer to comply with any instruction
received by it from the Collateral Agent in writing that (a) states that an
Event of Default has occurred and is continuing and (b) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from either Pledgor, and such Pledgor agrees that the Issuer shall
be fully protected in so complying.
15. The Collateral Agent. (a) Appointment. Each Secured Party hereby
-------------------- -----------
irrevocably designates and appoints the Collateral Agent as the agent of such
Secured Party under this Agreement, and each such Secured Party irrevocably
authorizes the Collateral Agent to take such action on its behalf under the
provisions of this Agreement and to exercise such powers and perform such duties
as are expressly delegated to the Collateral Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Collateral Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any other Secured
Party, 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 the Collateral Agent.
(b) Delegation of Duties. The Collateral Agent may execute any of its
--------------------
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Collateral Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
(c) Exculpatory Provisions. None of the Collateral Agent or any of its
----------------------
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(1) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement (except for its or such
Person's own gross negligence or willful misconduct) or (2) responsible in any
manner to any of the Secured Parties for any recitals, statements,
16
representations or warranties made by either Pledgor or any officer thereof
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received by such Collateral Agent
under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
for any failure of either Pledgor to perform its obligations hereunder. The
Collateral Agent shall not be under any obligation to any other Secured Party to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of either Pledgor.
(d) Reliance by Collateral Agent. The Collateral 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 the Collateral Agent. The Collateral 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 Collateral Agent. The Collateral Agent shall be fully justified
in failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Senior
Secured Parties and/or the Subordinated Secured Parties against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take such action. The Collateral Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Secured Parties and all future holders of the Loans.
(e) Notice of Default. The Collateral Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default or Event of Default unless
the Collateral Agent has received notice from a Lender, the Trustee (if the
Senior Secured Obligations have been paid in full and the Commitments shall have
expired or been terminated) 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 the Collateral Agent receives such a
notice, the Collateral Agent shall give notice thereof to the Pledgors and the
Subordinated Secured Parties. The Collateral Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders or by the Trustee (if the Senior Secured Obligations have
been paid in full and the Commitments shall have expired or been terminated);
provided that unless and until the Collateral Agent shall have received such
--------
directions, the Collateral Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as they shall deem advisable and in the best interests of the
Senior Secured Parties.
17
(f) Non-Reliance on Collateral Agent. Each other Secured Party expressly
--------------------------------
acknowledges that none of the Collateral Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Collateral Agent
hereinafter taken shall be deemed to constitute any representation or warranty
by the Collateral Agent to any Secured Party. Except for notices, reports and
other documents expressly required to be furnished to the Secured Parties by the
Collateral Agent hereunder, the Collateral Agent shall not have any duty or
responsibility to provide any other Secured Party with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of either Pledgor which may come
into the possession of the Collateral Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
(g) Collateral Agent in Its Individual Capacity. The Collateral Agent and
-------------------------------------------
its Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with either Pledgor as though the Collateral Agent were not
the Collateral Agent hereunder.
(h) Successor Collateral Agent. The Collateral Agent may resign as
--------------------------
Collateral Agent upon 10 days' notice to the Lenders. If the Collateral Agent
shall resign as Collateral Agent under this Agreement, then the Required Lenders
shall appoint from among the Lenders a successor Collateral Agent, which
successor agent shall succeed to the rights, powers and duties of such
Collateral Agent hereunder. Upon the payment in full of the Senior Secured
Obligations and the termination or expiration of the Commitments, the Collateral
Agent shall automatically be deemed to have resigned as Collateral Agent under
this Agreement, and the Trustee shall appoint a successor collateral agent for
the Subordinated Secured Parties within 10 days after its receipt of notice from
the Collateral Agent of such resignation or, in the absence of such appointment,
the Trustee shall automatically be appointed as successor collateral agent on
the tenth day after its receipt of such notice, which successor collateral agent
(whether it shall be the Trustee or any other Person) shall succeed to the
rights, powers and duties of such Collateral Agent hereunder. Effective upon any
such appointment, the term "Collateral Agent" shall mean such successor agent,
and such former Collateral Agent's rights, powers and duties as Collateral Agent
shall be terminated, without any other or further act or deed on the part of
such former Collateral Agent or any of the parties to this Agreement or any
Secured Party. After any retiring Collateral Agent's resignation as Collateral
Agent, the provisions of this Section 15 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
this Agreement. Anything in this Agreement to the contrary notwithstanding, in
the event of an automatic resignation of the Collateral Agent in the
circumstances described in the third sentence of this paragraph, such
resignation shall become effective upon the appointment of a successor
collateral agent in accordance with the provisions of such sentence, and,
thereafter, the sole obligation of the Collateral Agent hereunder shall be to
make delivery of the certificates representing the Pledged Stock to such
successor collateral agent or, if the Collateral Agent shall not have received
from the
18
Trustee a written notice of the appointment of a successor collateral agent
other than the Trustee, to the Trustee.
16. Collateral Agent's Appointment as Attorney-in-Fact. (a) Each Pledgor
--------------------------------------------------
hereby irrevocably constitutes and appoints the Collateral Agent and any officer
or agent of the Collateral Agent, with full power of substitution, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of such Pledgor and in the name of such Pledgor or in the
Collateral Agent's own name, from time to time in the Collateral Agent's
discretion, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, including, without limitation, any financing statements,
endorsements, assignments or other instruments of transfer.
(b) Each Pledgor hereby ratifies all that said attorneys shall lawfully do
or cause to be done pursuant to the power of attorney granted in paragraph
16(a). All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.
17. Duty of Collateral Agent. The Collateral Agent's sole duty with
------------------------
respect to the custody, safekeeping and physical preservation of the Collateral
in its possession, under Section 9-207 of the Code or otherwise, shall be to
deal with it in the same manner as the Collateral Agent deals with similar
securities and property for its own account, except that the Collateral Agent
shall have no obligation to invest funds held in any Collateral Account and may
hold the same as demand deposits. Neither the Collateral Agent, any Lender, the
Trustee, any Holder nor any of their respective directors, officers, employees
or agents shall be liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of either Pledgor
or any other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
18. Execution of Financing Statements. Pursuant to Section 9-402 of the
---------------------------------
Code, each Pledgor authorizes the Collateral Agent to file financing statements
with respect to the Collateral without the signature of such Pledgor in such
form and in such filing offices as the Collateral Agent reasonably determines
appropriate to perfect the security interests of the Collateral Agent under this
Agreement. A carbon, photographic or other reproduction of this Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
19. Notices. All notices, requests and demands to or upon the Company,
-------
either Pledgee or either Pledgor to be effective shall be in writing (or by
telex, fax or similar electronic transfer confirmed in writing) and shall be
deemed to have been duly given or made (1) when delivered by hand or (2) if
given by mail, two days after being deposited in
19
the mails by certified mail, return receipt requested, or (3) if by telex, fax
or similar electronic transfer, when sent and receipt has been confirmed,
addressed to such party at its address or transmission number for notices
provided under its signature below. Any party hereto may change their addresses
and transmission numbers for notices by notice in the manner provided in this
Section.
20. 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.
21. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of
-----------------------------------------------------
the terms or provisions of this Agreement may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by each Pledgor,
the Collateral Agent and, if any Senior Secured Obligations remain outstanding,
the Administrative Agent, provided that any provision of this Agreement may be
--------
waived by the Collateral Agent and, if any Senior Secured Obligations remain
outstanding, the Administrative Agent in a letter or agreement executed by the
Collateral Agent or by telex or facsimile transmission from the Collateral Agent
and, if any Senior Secured Obligations remain outstanding, the Administrative
Agent and, provided, further, that no such waiver, amendment, supplement or
-------- -------
other modification which materially and adversely affects any Subordinated
Secured Party shall be effective unless it shall have been consented to by the
Trustee.
(b) Neither the Collateral Agent nor any Secured Party shall by any act
(except by a written instrument pursuant to Paragraph 21(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Collateral Agent or any Secured
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Agent or any
Secured Party of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Collateral Agent or such
Secured Party would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
22. Section Headings. The section headings used in this Agreement are for
----------------
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
20
23. Successors and Assigns. This Agreement shall be binding upon the
----------------------
successors and assigns of the Company and shall inure to the benefit of the
Collateral Agent and the Secured Parties and their successors and assigns.
24. Governing Law. This Agreement shall be governed by, and construed and
-------------
interpreted in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective officers, thereunto duly authorized as of the date
first above written.
PLC COMMAND I, L.P., as Pledgor
By PLC COMMAND I, INC., its general partner
By: ______________________________
Title:
Address for Notices:
PLC Command I, L.P.
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: General Partner
Fax: (000) 000-0000
PLC COMMAND II, L.P., as Pledgor
By PLC COMMAND II, INC., its general partner
By: ____________________________
Title:
Address for Notices:
PLC Command II, L.P.
000 Xxxx Xxxxxx
Xxxx xx Xxxxxxx, XX 00000
Attention: General Partner
Fax: (000) 000-0000
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY,
as Collateral Agent and Administrative Agent
By: ____________________________
Title:
Address for Notices:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: ____________________________
Title:
Address for Notices:
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx XxXxxxxx
Fax: (000) 000-0000
ACKNOWLEDGEMENT AND CONSENT/1/
The undersigned hereby acknowledges receipt of a copy of the Pledge and
Intercreditor Agreement dated August __, 1996 (as amended, supplemented or
otherwise modified from time to time, the "Pledge Agreement"), made by and among
----------------
(a) PLC COMMAND I L.P., PLC COMMAND II L.P., (b) CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY, (together with its successors in such capacity, the
"Collateral Agent"), (c) CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as
----------------
administrative agent (in such capacity, the "Administrative Agent") and (d)
--------------------
UNITED STATES TRUST COMPANY OF NEW YORK, a New York banking corporation, as
trustee (together with its successors in its capacity, the "Trustee"). The
-------
undersigned agrees for the benefit of the Collateral Agent and the Secured
Parties (as defined in the Pledge Agreement) as follows:
1. The undersigned will be bound by the terms of the Pledge Agreement and
will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Collateral Agent promptly in writing
of the occurrence of any of the events described in Paragraph 6(a) of the Pledge
Agreement.
3. The only evidence which will be required by the Company to prove the
Collateral Agent's right to a transfer of the Pledged Collateral will be the
certificates pertaining thereto and an instrument of transfer as contemplated in
Sections 14 and 15 of the Company's Memorandum of Association
XXXXXX XXXXX COMMAND COMPANY
By__________________________________
Title_______________________________
Address for Notices:
____________________________________
____________________________________
Attention:__________________________
Fax:________________________________
________________________
/1/ Execution and delivery of this Acknowledgement will be included among the
conditions to the initial borrowing specified in the Credit Agreement.
