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EXHIBIT 10.1
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AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF MAY 26, 2000
AMONG
XXXXX, INC.,
LANFIN INVESTMENTS INC.,
AS THE CANADIAN BORROWER,
BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT AND
LETTER OF CREDIT ISSUING LENDER,
FIRST UNION NATIONAL BANK,
AS SYNDICATION AGENT,
WACHOVIA BANK, N.A.,
AS DOCUMENTATION AGENT,
AND
BANK OF AMERICA CANADA,
AS CANADIAN AGENT
BANC OF AMERICA SECURITIES LLC
AS LEAD ARRANGER AND BOOK MANAGER
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS............................................................................................1
1.1 Certain Defined Terms...........................................................................1
1.2 Other Interpretive Provisions..................................................................22
1.3 Accounting Principles..........................................................................23
ARTICLE II THE CREDITS..........................................................................................24
2.1 Amounts and Terms of U.S. Commitments..........................................................24
2.2 Amounts and Terms of Canadian Commitments......................................................24
2.3 Loan Accounts..................................................................................24
2.4 Procedure for U.S. Borrowing...................................................................25
2.5 Conversion and Continuation Elections for U.S. Borrowings......................................26
2.6 Procedure for Canadian Borrowing of Canadian Prime Rate Loans..................................27
2.7 Canadian Bankers' Acceptances and Canadian BA Equivalent Notes.................................27
2.7.1 Commitments to Accept Drafts and Purchase Canadian BA Equivalent Notes................27
2.7.2 Procedure for Canadian Bankers' Acceptances...........................................28
2.7.3 Maturity of Canadian Bankers' Acceptances.............................................29
2.7.4 Special Provisions for Canadian Bankers' Acceptances..................................30
2.7.5 Power of Attorney for Drafts and Canadian BA Equivalent Notes.........................30
2.7.6 Prepayment through Escrowed Funds.....................................................31
2.8 Voluntary Termination or Reduction of Commitments..............................................32
2.9 Optional Prepayments...........................................................................32
2.10 Repayment......................................................................................33
2.11 Interest.......................................................................................33
2.12 Fees...........................................................................................34
(a) Arrangement, Agency Fees..............................................................34
(b) Upfront Fees..........................................................................34
(c) Facility Fees.........................................................................34
(d) Canadian BA Fees......................................................................35
2.13 Computation of Fees and Interest...............................................................35
2.14 Payments by the Company........................................................................35
2.15 Payments by the Lenders to the Applicable Agent................................................36
2.16 Sharing of Payments............................................................................37
ARTICLE III THE LETTERS OF CREDIT...............................................................................38
3.1 The Letter of Credit Subfacility...............................................................38
3.2 Issuance, Amendment and Renewal of Letters of Credit...........................................39
3.3 Risk Participations, Drawings and Reimbursements...............................................41
3.4 Repayment of Participations....................................................................43
3.5 Role of the Issuing Lenders....................................................................43
3.6 Obligations Absolute...........................................................................44
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3.7 Cash Collateral Pledge.........................................................................45
3.8 Letter of Credit Fees..........................................................................45
3.9 Uniform Customs and Practice...................................................................46
ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY...............................................................46
4.1 Taxes..........................................................................................46
4.2 Illegality.....................................................................................47
4.3 Increased Costs and Reduction of Return........................................................47
4.4 Funding Losses.................................................................................48
4.5 Inability to Determine Rates...................................................................49
4.6 Certificates of Lenders........................................................................49
4.7 Substitution of Lenders........................................................................49
4.8 Canadian Lenders...............................................................................50
4.9 Survival.......................................................................................50
ARTICLE V CONDITIONS PRECEDENT..................................................................................50
5.1 Conditions to Effectiveness....................................................................51
(a) Agreement and Notes...................................................................51
(b) Resolutions; Incumbency...............................................................51
(c) Organization Documents................................................................51
(d) Legal Opinions........................................................................51
(e) Payment of Fees.......................................................................51
(f) Certificate...........................................................................51
(g) Other Documents.......................................................................51
5.2 Conditions to All Credit Extensions............................................................51
(a) Notice, Application...................................................................52
(b) Continuation of Representations and Warranties........................................52
(c) No Existing Default...................................................................52
ARTICLE VI REPRESENTATIONS AND WARRANTIES.......................................................................52
6.1 Corporate Existence and Power..................................................................52
6.2 Corporate Authorization; No Contravention......................................................53
6.3 Governmental Authorization.....................................................................53
6.4 Binding Effect.................................................................................53
6.5 Litigation.....................................................................................53
6.6 No Default.....................................................................................54
6.7 ERISA Compliance; Canadian Plans...............................................................54
6.8 Use of Proceeds; Margin Regulations............................................................54
6.9 Title to Properties............................................................................55
6.10 Taxes..........................................................................................55
6.11 Financial Condition............................................................................55
6.12 Environmental Matters..........................................................................55
6.13 Regulated Entities.............................................................................55
6.14 No Burdensome Restrictions.....................................................................56
6.15 Copyrights, Patents, Trademarks and Licenses, etc..............................................56
6.16 Subsidiaries...................................................................................56
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6.17 Insurance......................................................................................56
6.18 Swap Obligations...............................................................................56
6.19 Full Disclosure................................................................................56
ARTICLE VII AFFIRMATIVE COVENANTS...............................................................................57
7.1 Financial Statements...........................................................................57
7.2 Certificates; Other Information................................................................57
7.3 Notices........................................................................................58
7.4 Preservation of Corporate Existence, Etc.......................................................59
7.5 Maintenance of Property........................................................................59
7.6 Insurance......................................................................................59
7.7 Payment of Obligations.........................................................................59
7.8 Compliance with Laws...........................................................................59
7.9 Compliance with ERISA; Canadian Plans..........................................................60
7.10 Inspection of Property and Books and Records...................................................60
7.11 Environmental Laws.............................................................................60
7.12 Use of Proceeds................................................................................60
ARTICLE VIII NEGATIVE COVENANTS.................................................................................60
8.1 Financial Condition Covenants..................................................................61
(a) Total Debt to EBITDA Ratio............................................................61
(b) Interest Coverage Ratio...............................................................61
8.2 Limitation on Liens............................................................................61
8.3 Disposition of Assets..........................................................................62
8.4 Consolidations and Mergers.....................................................................63
8.5 Loans and Investments..........................................................................64
8.6 Limitation on Subsidiary Indebtedness..........................................................64
8.7 Transactions with Affiliates...................................................................65
8.8 Use of Proceeds................................................................................65
8.9 Swap Contracts.................................................................................65
8.10 Restricted Payments............................................................................65
8.11 ERISA..........................................................................................66
8.12 Change in Business.............................................................................66
8.13 Accounting Changes.............................................................................66
8.14 HSW Mortgage Loan..............................................................................66
ARTICLE IX EVENTS OF DEFAULT....................................................................................66
9.1 Event of Default...............................................................................66
(a) Non-Payment...........................................................................66
(b) Representation or Warranty............................................................66
(c) Specific Defaults.....................................................................67
(d) Other Defaults........................................................................67
(e) Cross-Default.........................................................................67
(f) Insolvency; Voluntary Proceedings.....................................................67
(g) Involuntary Proceedings...............................................................67
(h) ERISA; Canadian Plans.................................................................67
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(i) Judgments.............................................................................68
(j) Change of Control.....................................................................68
9.2 Remedies.......................................................................................68
9.3 Rights Not Exclusive...........................................................................69
ARTICLE X THE AGENTS............................................................................................69
10.1 Appointment and Authorization..................................................................69
10.2 Delegation of Duties...........................................................................70
10.3 Liability of Agent.............................................................................70
10.4 Reliance by Agents.............................................................................70
10.5 Notice of Default..............................................................................71
10.6 Credit Decision................................................................................71
10.7 Indemnification................................................................................71
10.8 Agent in Individual Capacity...................................................................72
10.9 Successor Agent................................................................................72
10.10 Withholding Tax................................................................................73
ARTICLE XI GUARANTY BY THE COMPANY..............................................................................74
11.1 Guaranty.......................................................................................74
11.2 Guaranty Unconditional.........................................................................74
11.3 Discharge only upon Payment in Full; Reinstatement in Certain Circumstances....................75
11.4 Waiver by the Company..........................................................................75
11.5 Subrogation....................................................................................76
11.6 Stay of Acceleration...........................................................................76
ARTICLE XII MISCELLANEOUS.......................................................................................76
12.1 Amendments and Waivers.........................................................................76
12.2 Notices........................................................................................77
12.3 No Waiver; Cumulative Remedies.................................................................77
12.4 Costs and Expenses.............................................................................78
12.5 Company Indemnification........................................................................78
12.6 Payments Set Aside.............................................................................79
12.7 Successors and Assigns.........................................................................79
12.8 Assignments, Participations, etc...............................................................79
12.9 Confidentiality................................................................................80
12.10 Set-off........................................................................................81
12.11 Notification of Addresses, Lending Offices, Etc................................................81
12.12 Counterparts...................................................................................82
12.13 Severability...................................................................................82
12.14 No Third Parties Benefited.....................................................................82
12.15 Governing Law and Jurisdiction.................................................................82
12.16 Waiver of Jury Trial...........................................................................82
12.17 Pari Passu Obligations.........................................................................83
12.18 Judgment.......................................................................................83
12.19 Entire Agreement...............................................................................83
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Schedule 2.1 U.S. Commitments and U.S. Pro Rata Shares
Schedule 2.2 Canadian Commitments and Canadian Pro Rata Shares
Schedule 6.7 ERISA
Schedule 6.16 Subsidiaries of Xxxxx, Inc.
Schedule 8.2 Permitted Liens
Schedule 12.2 Offshore and Domestic Lending Offices, Addresses for Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Acceptance
Exhibit E Form of Promissory Note
Exhibit F Form of Canadian BA Equivalent Note
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AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of May
26, 2000, among XXXXX, INC., a North Carolina corporation (the "Company"),
LANFIN INVESTMENTS INC., an Ontario corporation (the "Canadian Borrower" and
together with the Company, collectively the "Borrowers"), the several financial
institutions from time to time party to this Agreement (collectively the
"Lenders"; individually each a "Lender"), FIRST UNION NATIONAL BANK, as
syndication agent, WACHOVIA BANK, N.A., as documentation agent, BANK OF AMERICA,
N.A., as letter of credit issuing lender and as administrative agent for the
Lenders, and BANK OF AMERICA CANADA, as Canadian Agent.
WITNESSETH:
WHEREAS, the Company, certain of the Lenders and the Administrative
Agent are parties to that certain Credit Agreement dated as of April 12, 1999
(the "Original Credit Agreement"), pursuant to which such Lenders have made
loans to, and issued or participated in letters of credit issued for the account
of, the Company; and
WHEREAS, the Company, the Canadian Borrower, the Lenders, the
Administrative Agent and the Canadian Agent have agreed to amend and restate the
Original Credit Agreement in the form of this Agreement, and on the terms and
conditions stated herein, to provide for a C$25,000,000 loan facility for the
Canadian Borrower, a subsidiary of the Company, guaranteed by the Company,
provided by affiliates of certain of the existing Lenders and Canadian Imperial
Bank of Commerce which are becoming Canadian Lenders hereunder;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined Terms. The following terms have the following
meanings:
Acquisition means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition
of in excess of 50% of the capital stock, partnership interests,
membership interests or equity of any Person, or otherwise causing any
Person to become a Subsidiary, or (c) a merger or consolidation or
amalgamation or any other combination with another Person (other than a
Person that is a Subsidiary) provided that the Company or the
Subsidiary is the surviving entity or, in the case of an amalgamation,
the resulting corporation has provided an assumption agreement and all
other assurances as the Administrative Agent may reasonably require.
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Administrative Agent means Bank of America in its capacity as
agent for the Lenders hereunder, and any successor thereto in such
capacity arising under Section 10.9.
Administrative Agent's Payment Office means the address for
payments set forth on Schedule 12.2 or such other address as the
Administrative Agent may from time to time specify.
Affiliate means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities or membership interests, by contract or
otherwise.
Agent means each of the Administrative Agent and the Canadian
Agent.
Agent-Related Persons means Bank of America and any successor
to Bank of America as Administrative Agent arising under Section 10.9
and any successor to Bank of America as letter of credit issuing bank
hereunder and Bank of America Canada and any successor to Bank of
America Canada as Canadian Agent arising under Section 10.9, together
with their respective Affiliates (including, in the case of Bank of
America and Bank of America Canada, the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
Aggregate Canadian Commitment means at any time an amount
equal to the aggregate amount of the Canadian Commitments of all
Canadian Lenders. The initial amount of the Aggregate Canadian
Commitment is C$25,000,000.
Aggregate U.S. Commitment means at any time an amount equal to
the aggregate amount of the U.S. Commitments of all U.S. Lenders. The
initial amount of the Aggregate U.S. Commitment is U.S.$60,000,000.
Agreement means this Credit Agreement.
Applicable Law means, with reference to any Person, all laws
(foreign or domestic), ordinances and treaties and all judgments,
decrees, injunctions, writs and orders of any court, arbitrator or
Governmental Authority, and all rules and regulations of any
Governmental Authority applicable to such Person.
Applicable Margin means (a) initially, 0.450% per annum, and
(b) beginning on any date on which the Applicable Margin is to be
adjusted pursuant to the sentence following the table below, the rate
per annum set forth in the table below opposite the applicable Total
Debt to EBITDA Ratio:
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Total Debt Applicable
to EBITDA Ratio Margin
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Less than or equal
to 0.50 to 1 0.350%
Greater than 0.50
to 1 but less than
or equal to 1.25 to 1 0.450%
Greater than 1.25 to
to 1 but less than
or equal to 2.00 to 1 0.550%
Greater than 2.00
to 1 0.750%
The Applicable Margin for all Offshore Rate Loans (and for purposes of
the L/C Fee Rate and the Stamping Fee Rate) shall be adjusted, to the
extent applicable, 46 days (or, in the case of the last fiscal quarter
of any year, 101 days) after the end of each fiscal quarter (or, if
earlier, 10 days following delivery by the Company of the financial
statements required by subsection 7.1(a) or 7.1(b), as applicable, and
the related Compliance Certificate required by subsection 7.2(a) for
such fiscal quarter), based on the Total Debt to EBITDA Ratio as of the
last day of such fiscal quarter; it being understood that if the
Company fails to deliver the financial statements required by
subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance
Certificate required by subsection 7.2(a) by the 46th day (or, if
applicable, the 101st day) after any fiscal quarter, the Applicable
Margin shall be 0.750% until such financial statements and Compliance
Certificate are delivered.
Arranger means Banc of America Securities LLC.
Assignee - see subsection 12.8(a).
Assignment and Acceptance - see subsection 12.8(a).
Attorney Costs means and includes all reasonable fees and
disbursements of any law firm or other external counsel and, without
duplication, the allocated cost of internal legal services and all
reasonable disbursements of internal counsel provided that all
attorneys' fees shall be determined without regard to any statutory
presumption based on the standard hourly rates for such attorneys and
the actual hours expended.
Bank of America means Bank of America, N.A., a national
banking association.
Bankruptcy Code means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ss.101, et seq.).
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Borrowers - see preamble to this Agreement.
Borrowing means (a) a borrowing hereunder consisting of Loans
of the same Type made to a Borrower on the same day by one or more
Lenders under Article II and, other than in the case of U.S. Base Rate
Loans or Canadian Prime Rate Loans, having the same Interest Period or
(b) a Canadian BA Borrowing.
Borrowing Date means any date on which a Borrowing occurs
under Section 2.4 or 2.6 or on which the Canadian Lenders accept Drafts
and/or purchase BA Equivalent Notes pursuant to Section 2.7.
Business Day means any day other than a Saturday, Sunday or
other day on which commercial banks in Charlotte, North Carolina are
authorized or required by law to close and, if the applicable Business
Day relates to any Offshore Rate Loan, means such a day on which
dealings are carried on in the London offshore dollar interbank market
and, in the case of payments and disbursements in Canadian Dollars and
in the case of any matter relating to Canadian Bankers' Acceptances or
Canadian BA Equivalent Notes such a day on which Bank of America Canada
is open for commercial banking business in Xxxxxxx, Xxxxxxx.
Canadian Agent means Bank of America Canada in its capacity as
agent for the Canadian Lenders hereunder, and any successor thereto in
such capacity arising under Section 10.9.
Canadian BA Borrowing means Canadian Bankers' Acceptances and
Canadian BA Equivalent Notes accepted or purchased by the Canadian
Lenders in amounts substantially equivalent (subject to subsection
2.7.2(b)) to their respective Canadian Pro Rata Shares on the same day
and for the same term.
Canadian BA Discount Proceeds means, with respect to any
Canadian Bankers' Acceptance or Canadian BA Equivalent Note, an amount
calculated on the applicable Borrowing Date which is (rounded to the
nearest full cent) equal to the face amount of such Canadian Bankers'
Acceptance or Canadian BA Equivalent Note divided by the sum of one
plus the product of (i) the Canadian BA Discount Rate applicable
thereto multiplied by (ii) a fraction, the numerator of which is the
term of such Canadian Bankers' Acceptance or Canadian BA Equivalent
Note and the denominator of which is 365.
Canadian BA Discount Rate means, with respect to any Canadian
Bankers' Acceptances or Canadian BA Equivalent Notes to be purchased by
the Canadian Lenders on any Borrowing Date, (i) for each Canadian BA
Lender that is a bank named in Schedule I to the Bank Act (Canada), the
CDOR for bankers' acceptances having an identical maturity date and (if
shown on the CDOR page of the Reuters screen) comparable aggregate face
amount to the maturity date and aggregate face amount of such Canadian
Bankers' Acceptances, (ii) for each Canadian BA Lender that is not a
bank named in Schedule I to the Bank Act (Canada), the lesser of (A)
the CDOR and (B)
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the discount rate of interest at which such Canadian BA Lender is
offering as of 10:00 a.m. (Toronto time) on such Borrowing Date to
purchase bankers' acceptances accepted by it having an identical
maturity date and comparable aggregate face amount to the maturity date
and aggregate face amount of the applicable Canadian Bankers'
Acceptance of such Canadian BA Lender, as notified by such Lender to
the Canadian Agent and (iii) for each Canadian Non-BA Lender, the
lesser of (A) the CDOR and (B) the annual interest rate which is the
cost to such Canadian Non-BA Lender of obtaining Canadian Dollars to
fund such purchase by it, as notified by such Lender to the Canadian
Agent.
Canadian BA Equivalent Note - see Section 2.7.1.
Canadian BA Lender means any Canadian Lender which is a bank
chartered under the Bank Act (Canada) and which has not notified the
Canadian Agent in writing that it is unwilling or unable to accept
Drafts as provided in Section 2.3.
Canadian Bankers' Acceptance means a Draft which has been
accepted by a Canadian BA Lender as provided in Section 2.7.
Canadian Borrower - see the preamble to this Agreement.
Canadian Borrowing means a Borrowing of Canadian Loans.
Canadian Commitment - see Section 2.2. As of the Effective
Date, the amount of the aggregate Canadian Commitments of all Canadian
Lenders is C$25,000,000.
Canadian Cost of Funds Rate means, for any day, a rate per
annum equal to the cost of funds of the Canadian Agent as established
by the Canadian Agent based on its customary practice.
Canadian Dollars and C$ each means lawful money of Canada.
Canadian Lender means each Lender designated as a Canadian
Lender on its signature page hereto and its permitted successors and
assigns.
Canadian Loan means a Canadian Prime Rate Loan to the Canadian
Borrower in Canadian Dollars.
Canadian Non-BA Lender means any Canadian Lender which is not
a Canadian BA Lender.
Canadian Outstandings means, with respect to any Canadian
Lender, the aggregate principal amount of all outstanding Canadian
Loans made by such Canadian Lender to the Canadian Borrower plus the
face amount of all outstanding Canadian Bankers' Acceptances accepted
by such Canadian Lender or Canadian BA Equivalent Notes purchased by
such Canadian Lender.
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Canadian Plan means a pension plan established by the Canadian
Borrower or any other Canadian Subsidiary of the Company for any of its
employees which is not subject to ERISA.
Canadian Prime Rate means, for any day, the per annum rate of
interest in effect for such day as determined from time to time by Bank
of America Canada in Toronto, Ontario as its "prime rate" for loans
made by Bank of America Canada to borrowers in Canada in Canadian
Dollars. (The "prime rate" is a rate set by Bank of America Canada
based upon various factors including Bank of America Canada's costs and
desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced
at, above or below such determined rate.)
Canadian Prime Rate Loan means a Canadian Loan that bears
interest based on the Canadian Prime Rate.
Canadian Pro Rata Share means for any Canadian Lender at any
time the proportion (expressed as a decimal, rounded to the ninth
decimal place) which such Canadian Lender's Canadian Commitment
constitutes of the Aggregate Canadian Commitment (or, after the
Canadian Commitments have terminated, which (i) the principal amount of
such Canadian Lender's Canadian Loans outstanding constitutes of (ii)
the aggregate principal amount of all Canadian Loans outstanding).
Capital Adequacy Regulation means any guideline, request or
directive of any central bank or other relevant Governmental Authority,
or any other law, rule or regulation, whether or not having the force
of law, in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
Cash Collateralize means, with respect to either Borrower, to
pledge and deposit with or deliver to the Administrative Agent or the
Canadian Agent, as the case may be, for the benefit of the Agents, the
Issuing Lenders and the Lenders, as collateral for the L/C Obligations
(in the case of the Company (if and when required pursuant to Section
3.7 or 9.2)) or in respect of Canadian Bankers' Acceptances and
Canadian BA Equivalent Notes (if and when required pursuant to Section
9.2), cash or deposit account balances pursuant to documentation in
form and substance satisfactory to the applicable Agent and the
Required U.S. Lenders (in the case of the Company) or the Required
Canadian Lenders (in the case of the Canadian Borrower). Derivatives of
such term shall have corresponding meanings. Cash collateral shall be
maintained in blocked accounts at the applicable Agent or, with Bank of
America's consent, the applicable Issuing Lender.
CDOR means, for any day, (a) the average of the annual
discount rates (rounded upward to the nearest 1/100 of 1%) for bankers'
acceptances denominated in Canadian Dollars for a specified term and,
if shown, the aggregate face amount that appears on the CDOR page of
the Reuters Screen as of 10:30 a.m. (Toronto time) on such day (or, if
such day is not a Business Day, as of 10:30 a.m. (Toronto time) on the
immediately preceding Business Day), all as determined by the Canadian
Agent, or (b) if such average under clause (a) is not available on such
day, the discount rate of interest at which such
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Canadian Agent is offering as of 10:00 a.m. (Toronto time) on such
Borrowing Date to purchase bankers' acceptances accepted by it having
an identical maturity date and comparable aggregate face amount to the
maturity date and aggregate face amount of the applicable Canadian
Bankers' Acceptance of the Canadian Agent.
Change of Control means any of the following events:
(a) any Person or group (within the meaning of Rule 13d-5 of
the SEC under the Securities Exchange Act of 1934 as in effect on the
date hereof) (other than the Van Every Family) shall become the
Beneficial Owner (as defined in Rule 13d-3 of the SEC under the
Securities Exchange Act of 1934 as in effect on the date hereof) of 20%
or more of the capital stock or other equity interests of the Company
the holders of which are entitled under ordinary circumstances
(irrespective of whether at the time the holders of such stock or other
equity interests shall have or might have voting power by reason of the
happening of any contingency) to vote for the election of the directors
of the Company; or
(b) a majority of the members of the Board of Directors of the
Company shall cease to be Continuing Members; or
(c) the Company shall fail to beneficially own, directly or
indirectly, all of the outstanding equity interests in the Canadian
Borrower.
Code means the U.S. Internal Revenue Code of 1986, and
regulations promulgated thereunder.
Commitment means a Canadian Commitment or a U.S. Commitment.
Company - see the preamble to this Agreement.
Compliance Certificate means a certificate substantially in
the form of Exhibit C.
Computation Period means any period of four consecutive fiscal
quarters ending on the last day of a fiscal quarter.
Contingent Obligation means, as to any Person, without
duplication, any direct or indirect liability of such Person, whether
or not contingent, with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other obligation
(the "primary obligations") of another Person (the "primary obligor"),
including any obligation of such Person (i) to purchase, repurchase or
otherwise acquire such primary obligations or any security therefor,
(ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial
condition 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
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primary obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect thereof
(each a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of such Person or as to which such
Person is otherwise liable for reimbursement of drawings or payments;
or (c) in respect of any Swap Contract. The amount of any Contingent
Obligation shall (a) in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or
if indeterminable, the maximum reasonably anticipated liability in
respect thereof, and (b) in the case of other Contingent Obligations,
be equal to the maximum reasonably anticipated liability in respect
thereof.
Continuing Member means a member of the Board of Directors of
the Company who either (a) was a member of the Company's Board of
Directors on the Effective Date and has been such continuously
thereafter or (b) became a member of such Board of Directors after the
Effective Date and whose election or nomination for election was
approved by a vote of the majority of the Continuing Members then
members of the Company's Board of Directors.
Contractual Obligation means, as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other document to which
such Person is a party or by which it or any of its property is bound.
Conversion/Continuation Date means any date on which, under
Section 2.5 the applicable Borrower (a) converts Loans of one Type to
the other Type or (b) continues Offshore Rate Loans for a new Interest
Period.
Credit Extension means and includes (a) the making of any Loan
hereunder, (b) the acceptance of any Draft or the purchase of any
Canadian BA Equivalent Note hereunder and (c) the Issuance of any
Letter of Credit hereunder.
Deferred Notes - see Section 8.6.
Disclosure Memorandum means the disclosure memorandum dated
May 26, 2000 of the Borrowers delivered to the Agents and the Lenders
on or before the Effective Date.
Dollar, dollar, U.S. Dollar, U.S.$ and $ each means lawful
money of the United States.
Dollar Equivalent means, at any time, (a) as to any amount
denominated in U.S. Dollars, the amount thereof at such time, and (b)
as to any amount denominated in Canadian Dollars, the equivalent amount
in U.S. Dollars as determined by the U.S. Agent at such time on the
basis of the Spot Rate for the purchase of U.S. Dollars with Canadian
Dollars.
Draft - see Section 2.7.1.
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EBIT means, for any Computation Period, the Company's
consolidated earnings from continuing operations for such period, plus,
to the extent deducted in determining such earnings, Interest Expense
and income taxes, minus, to the extent included in determining such
earnings, any income tax refunds.
EBITDA means, for any Computation Period, the Company's
consolidated earnings from continuing operations for such period, plus,
to the extent deducted in determining such earnings, Interest Expense,
income taxes, depreciation and amortization, minus, to the extent
included in determining such earnings, any income tax refunds.
Effective Amount means, with respect to any outstanding L/C
Obligations on any date, the amount of such L/C Obligations on such
date after giving effect to any Issuances of Letters of Credit
occurring on such date, any other changes in the aggregate amount of
the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letter of
Credit or any reduction in the maximum amount available for drawing
under Letters of Credit taking effect on such date.
Effective Date - see Section 5.1.
Eligible Assignee means (a), in the case of U.S. Commitments,
U.S. Loans and L/C Obligations, (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least U.S.$100,000,000; (ii) a
commercial bank organized under the laws of any other country which is
a member of the Organization for Economic Cooperation and Development
(the OECD), or a political subdivision of any such country, and having
a combined capital and surplus of at least U.S.$100,000,000, provided
that such bank is acting through a branch or agency located in the
United States; and (iii) a Person that is primarily engaged in the
business of commercial banking and that is (A) a Subsidiary of a U.S.
Lender, (B) a Subsidiary of a Person of which a U.S. Lender is a
Subsidiary, or (C) a Person of which a U.S. Lender is a Subsidiary, and
(b) in the case of Canadian Commitments and Canadian Loans, a Person
registered as a bank under the Bank Act (Canada) or another financial
institution resident in Canada for Canadian tax purposes and (i) having
a combined capital and surplus of at least C$100,000,000, or (ii) being
a Subsidiary of a commercial bank, financial institution or finance
company organized under the laws of the United States, or any state
thereof, and having a combined capital and surplus of at least
U.S.$100,000,000.
Environmental Claims means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability
or responsibility for violation of any Environmental Law, or for
release or injury to the environment.
Environmental Laws means all federal, state or local laws,
statutes, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties,
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requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authorities, in each case relating to environmental
and human health matters.
ERISA means the U.S. Employee Retirement Income Security Act
of 1974, and the regulations promulgated thereunder.
ERISA Affiliate means any trade or business (whether or not
incorporated) under common control with the Company within the meaning
of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of
the Code for purposes of provisions relating to Section 412 of the
Code).
ERISA Event means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year
in which it was a substantial employer (as defined in Section
4001(a)(2) of ERISA) or a substantial cessation of operations which is
treated as such a withdrawal; (c) a complete or partial withdrawal by
the Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the
filing of a notice of intent to terminate, the treatment of a Pension
Plan amendment as a termination under Section 4041 or 4041A of ERISA,
or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Company or any ERISA Affiliate.
Escrow Funds has the meaning specified in Section 2.7.6.
Event of Default means any of the events or circumstances
specified in Section 9.1.
Facility Fee Rate means (a) initially, 0.175% per annum, and
(b) beginning on any date on which the Facility Fee Rate is to be
adjusted pursuant to the sentence following the table below, the rate
per annum set forth in the table below opposite the applicable Total
Debt to EBITDA Ratio:
Total Debt to Facility
EBITDA Ratio Fee Rate
------------ --------
Less than or equal
to 0.50 to 1 0.150%
Greater than 0.50
to 1 but less than
or equal to 1.25 to 1 0.175%
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Greater than 1.25 to
to 1 but less than
or equal to 2.00 to 1 0.200%
Greater than 2.00
to 1 0.250%
The Facility Fee Rate shall be adjusted, to the extent applicable, 46
days (or, in the case of the last fiscal quarter of any year, 101 days)
after the end of each fiscal quarter (or, if earlier, 10 days following
delivery by the Company of the financial statements required by
subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance
Certificate required by subsection 7.2(a) for such fiscal quarter),
based on the Total Debt to EBITDA Ratio as of the last day of such
fiscal quarter; it being understood that if the Company fails to
deliver the financial statements required by subsection 7.1(a) or
7.1(b), as applicable, and the related Compliance Certificate required
by subsection 7.2(a) by the 46th day (or, if applicable, the 101st day)
after any fiscal quarter, the Facility Fee Rate shall be 0.250% until
such financial statements and Compliance Certificate are delivered.
Federal Funds Rate means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or, if
for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the arithmetic
mean as determined by the Administrative Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the
Administrative Agent.
Fixed Rate Loan means an Offshore Rate Loan.
FRB means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
Further Taxes means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholdings or
similar charges (including net income taxes and franchise taxes), and
all liabilities with respect thereto, imposed by any jurisdiction on
account of amounts payable or paid pursuant to Section 4.1.
GAAP means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination.
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Governmental Authority means any applicable nation or
government, any state, provincial or other political subdivision
thereof, any central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock
or capital ownership or otherwise, by any of the foregoing.
Guaranty Obligation has the meaning specified in the
definition of Contingent Obligation.
Honor Date has the meaning specified in subsection 3.3(b).
HSW Mortgage Loan means the mortgage loan in the original
principal amount of U.S.$95,000,000 owing by the Company to HSW
Mortgage Corp. and secured by a deed of trust on the real property of
the Company contiguous to and including its corporate headquarters
located at 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx.
Indebtedness of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase
price of property or services (other than trade payables entered into
in the ordinary course of business on ordinary terms); (c) all
reimbursement or payment obligations of such Person with respect to
Surety Instruments; (d) all obligations of such Person evidenced by
notes, bonds, debentures or similar instruments; (e) all indebtedness
of such Person created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case
with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property);
(f) all obligations of such Person with respect to capital leases which
should be recorded on a balance sheet of such Person in accordance with
GAAP; (g) all indebtedness of the types referred to in clauses (a)
through (f) above secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, provided
that the amount of any such Indebtedness shall be deemed to be the
lesser of the face principal amount thereof and the fair market value
of the property subject to such Lien; and (h) all Guaranty Obligations
of such Person in respect of indebtedness or obligations of others. For
all purposes of this Agreement, the Indebtedness of any Person shall
include all Indebtedness of any partnership or joint venture in which
such Person is a general partner or a joint venturer to the extent of
such Person's liability therefor; provided that to the extent that any
such indebtedness is expressly non-recourse to such Person it shall not
be included as Indebtedness.
Indemnified Liabilities - see Section 12.5.
Indemnified Person - see Section 12.5.
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Independent Auditor - see subsection 7.1(a).
Insolvency Proceeding means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors; in each case undertaken under
any Applicable Law, including the Bankruptcy Code.
Interest Coverage Ratio means, for any Computation Period, the
ratio of (a) EBIT for such Computation Period, to (b) Interest Expense
for such Computation Period.
Interest Expense means for any period, without duplication,
the consolidated interest expense (whether paid or accrued) of the
Company and its Subsidiaries for such period (including all imputed
interest on capital leases) plus the interest component of synthetic
leases (regardless of the accounting treatment of the synthetic leases)
plus consolidated yield or discount accrued during such period on the
aggregate outstanding investment or claim held by purchasers, assignees
or other transferees of (or of interests in) receivables of the Company
and its Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
Interest Payment Date means, as to any Offshore Rate Loan, the
last day of each Interest Period applicable to such Loan and, as to any
U.S. Base Rate Loan or Canadian Prime Rate Loan, the last Business Day
of each calendar quarter, provided that if any Interest Period for an
Offshore Rate Loan exceeds three months, each three-month anniversary
of the first day of such Interest Period also shall be an Interest
Payment Date.
Interest Period means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such U.S. Loan or on the
Conversion/Continuation Date on which such Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Company in its Notice
of Borrowing or Notice of Conversion/Continuation, as the case may be;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Loan, 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 preceding
Business Day;
(ii) any Interest Period for an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at
the end of such Interest Period; and
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(iii) no Interest Period for any Loan shall extend
beyond the Termination Date.
IRS means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
Issuance Date has the meaning specified in subsection 3.1(a).
Issue means, with respect to any Letter of Credit, to issue or
to extend the expiry of, or to renew or increase the amount of, such
Letter of Credit; and the terms "Issued," "Issuing" and "Issuance" have
corresponding meanings.
Issuing Lender means Bank of America in its capacity as issuer
of one or more Letters of Credit hereunder, together with (i) any
replacement letter of credit issuer arising under subsection 10.1(b) or
Section 10.9 and (ii) any other U.S. Lender or any Affiliate of a U.S.
Lender which the Administrative Agent and the Company have approved in
writing as an "Issuing Lender" hereunder.
L/C Advance means each U.S. Lender's participation in any L/C
Borrowing in accordance with its Pro Rata Share.
L/C Amendment Application means an application form for
amendment of an outstanding standby letter of credit as shall at any
time be in use by the applicable Issuing Lender, as such Issuing Lender
shall request.
L/C Application means an application form for issuance of a
standby letter of credit as shall at any time be in use by the
applicable Issuing Lender, as such Issuing Lender shall request.
L/C Borrowing means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a Borrowing of U.S. Loans
under subsection 3.3(d).
L/C Commitment means the commitment of the Issuing Lenders to
Issue, and the commitment of the U.S. Lenders severally to participate
in, Letters of Credit from time to time Issued or outstanding under
Article III in an aggregate amount not to exceed on any date the lesser
of U.S.$10,000,000 and the Aggregate U.S. Commitment; it being
understood that the L/C Commitment is a part of the Aggregate U.S.
Commitment rather than a separate, independent commitment.
L/C Fee Rate means, at any time, the Applicable Margin;
provided that upon notice to the Company from the Administrative Agent
(acting at the request or with the consent of the Required U.S.
Lenders) during the existence of any Event of Default, and for so long
as such Event of Default continues, such rate shall be increased by 2
percentage points.
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L/C Obligations means at any time the sum of (a) the aggregate
undrawn amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit,
including all outstanding L/C Borrowings.
L/C-Related Documents means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any of the applicable
Issuing Lender's standard form documents for letter of credit
issuances.
Lender - see the preamble to this Agreement. References to the
"Lenders" shall include each Issuing Lender in its capacity as such;
for purposes of clarification only, to the extent that any Issuing
Lender may have any rights or obligations in addition to those of the
other Lenders due to its status as Issuing Lender, its status as such
will be specifically referenced.
Lending Office means, as to any Lender, the office or offices
of such Lender specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on Schedule
12.2, or such other office or offices as such Lender may from time to
time notify the Borrowers and the Agents.
Letter of Credit means any standby letter of credit Issued by
an Issuing Lender pursuant to Article III.
Lien means any security interest, mortgage, deed of trust,
pledge, hypothecation, assignment, charge or deposit arrangement,
encumbrance, lien (statutory or other) or preferential arrangement of
any kind or nature whatsoever in respect of any property (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under a
capital lease, or any financing lease having substantially the same
economic effect as any of the foregoing, but not including the interest
of a lessor under an operating lease).
Loan means an extension of credit by a Lender to a Borrower
under Article II or Article III in the form of a Loan, which may be a
U.S. Base Rate Loan, an Offshore Rate Loan or a Canadian Prime Rate
Loan (each a "Type" of Loan), or L/C Advance.
Loan Documents means this Agreement, any Notes, the Canadian
Bankers' Acceptances, the Canadian BA Equivalent Notes and the
L/C-Related Documents.
Margin Stock means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
Material Adverse Effect means a material adverse change in, or
a material adverse effect upon, the operations, business, properties,
assets, liabilities (actual or contingent), or financial condition of
the Company and its Subsidiaries taken as a whole.
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Material Financial Obligations means Indebtedness or
Contingent Obligations of the Company or any Subsidiary or obligations
of the Company or any Subsidiary in respect of any Securitization
Transaction, in an aggregate principal amount (for all applicable
Indebtedness, Contingent Obligations and obligations in respect of
Securitization Transactions) equal to or greater than U.S.$7,500,000.
Multiemployer Plan means a "multiemployer plan", within the
meaning of Section 4001(a)(3) of ERISA, with respect to which the
Company or any ERISA Affiliate may have any liability.
Note means a promissory note executed by a Borrower in favor
of a Lender pursuant to subsection 2.3(b), in substantially the form of
Exhibit E.
Notice of Borrowing means a notice in substantially the form
of Exhibit A-1.
Notice of Canadian BA Borrowing means a notice in
substantially the form of Exhibit A-2.
Notice of Conversion/Continuation means a notice in
substantially the form of Exhibit B.
Obligations means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by a Borrower to any Lender, any Agent or any other Indemnified Person,
whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, or now existing or
hereafter arising.
Offshore Rate means, for any Interest Period, with respect to
Offshore Rate Loans comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/100th of 1%)
determined by the Administrative Agent as follows:
Offshore Rate = LIBOR
-----------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for
any Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward, if necessary, to an integral
multiple of 1/100th of 1%) in effect on such day (whether or
not applicable to any Lender) under regulations issued from
time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities");
and
"LIBOR" means, for any Offshore Rate Loan for any
Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest
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1/100th of 1%) appearing on Telerate Page 3750 (or any
successor or equivalent page), as the London interbank offered
rate for deposits in U.S. Dollars and in the approximate
amount of the Loan to be made or continued as, or converted
into, such Offshore Rate Loan at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of
such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified
on Telerate Page 3750, the relevant rate shall be the
arithmetic mean of all such rates. If for any reason such rate
is not available, the term "LIBOR" shall mean, for any
Offshore Rate Loan for any Interest Period therefor,
(a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) appearing on
Reuters Screen LIBO Page as the London interbank
offered rate for deposits in the Applicable Currency
and in the approximate amount of the Loan to be made
or continued as, or converted into, such Offshore
Rate Loan at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such
Interest Period for a term comparable to such
Interest Period; provided, however, if more than one
rate is specified on Reuters Screen LIBO Page, the
relevant rate shall be the arithmetic mean of all
such rates, or
(b) if no rate is available on the Reuters
Screen LIBO page, then the rate determined by the
Administrative Agent at which the Applicable Currency
in the approximate amount of the loan to be made or
continued as, or converted into, such Offshore Rate
Loan is offered by leading banks in the London
interbank market at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of the
applicable Interest Period (rounded upwards, if
necessary, to the nearest 1/100th of 1%).
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in
the Eurodollar Reserve Percentage.
Offshore Rate Loan means a U.S. Loan that bears interest based
on the Offshore Rate.
Organization Documents means (i) for any corporation, the
certificate of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders of such corporation, any shareholder rights agreement, and
all applicable resolutions of the board of directors (or any committee
thereof) of such corporation, (ii) for any partnership or joint
venture, the partnership or joint venture agreement and any other
organizational document of such entity, (iii) for any limited liability
company, the certificate or articles of organization, the operating
agreement and any other organizational document of such limited
liability company, (iv) for any trust, the declaration of trust, the
trust agreement and any other organizational document of such trust and
(v) for any other entity, the document or agreement pursuant to which
such entity was formed and any other organizational document of such
entity.
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Original Credit Agreement - see the recitals.
Other Taxes means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Loan Document.
Participant - see subsection 12.8(d).
PBGC means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
Pension Plan means a pension plan (as defined in Section 3(2)
of ERISA) subject to Title IV of ERISA, other than a Multiemployer
Plan, with respect to which the Company or any ERISA Affiliate may have
any liability.
Permitted Liens - see Section 8.2.
Permitted Swap Obligations means all obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising
under Swap Contracts, provided that such obligations are (or were)
entered into by such Person in the ordinary course of business for the
purpose of directly mitigating risks associated with (a) raw materials
purchases, (b) interest or currency exchange rates, (c) operating
expenses or other anticipated obligations of such Person, (d) other
liabilities, commitments or assets held or reasonably anticipated by
such Person or (e) changes in the value of securities issued by such
Person in conjunction with a securities repurchase program not
otherwise prohibited hereunder.
Person means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
Plan means an employee benefit plan (as defined in Section
3(3) of ERISA), other than a Multiemployer Plan, with respect to which
the Company or any ERISA Affiliate may have any liability, and includes
any Pension Plan.
Pro Rata Share means for any Lender at any time the proportion
(expressed as a decimal, rounded to the ninth decimal place) which the
aggregate Dollar Equivalent amount of such Lender's Commitments
constitutes of the aggregate Dollar Equivalent amount of the combined
Commitments (or, after the Commitments have terminated, which (i) the
principal Dollar Equivalent amount of such Lender's Loans constitutes
of (ii) the Total Outstandings).
Reportable Event means, any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder, other than any such
event for which the 30-day notice requirement under ERISA has been
waived in regulations issued by the PBGC.
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Required Canadian Lenders means Canadian Lenders holding
Canadian Pro Rata Shares aggregating at least 67%.
Required Lenders means Lenders holding Pro Rata Shares
aggregating at least 67%; provided that if and so long as any U.S.
Lender fails to fund any U.S. Loan when required by Section 3.3 or a
participation in an L/C Borrowing pursuant to Section 3.3, as the case
may be, such U.S. Lender's Pro Rata Share shall be deemed for purposes
of this definition to be reduced by the percentage which the defaulted
amount constitutes of the combined Commitments (or, if the Commitments
have terminated, the Total Outstandings), and the Pro Rata Share of the
applicable Issuing Lender shall be deemed for purposes of this
definition to be increased by such percentage.
Required U.S. Lenders means Lenders holding U.S. Pro Rata
Shares aggregating at least 67%; provided that if and so long as any
U.S. Lender fails to fund any U.S. Loan when required by Section 3.3 or
a participation in an L/C Borrowing pursuant to Section 3.3, as the
case may be, such U.S. Lender's U.S. Pro Rata Share shall be deemed for
purposes of this definition to be reduced by the percentage which the
defaulted amount constitutes of the Aggregate U.S. Commitment (or, if
the U.S. Commitments have terminated, the Total U.S. Outstandings), and
the U.S. Pro Rata Share of the applicable Issuing Lender shall be
deemed for purposes of this definition to be increased by such
percentage.
Requirement of Law means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an
arbitrator or of a 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 means the chief executive officer, the
president or any vice president of the Company, or any other officer
having substantially the same authority and responsibility; or, with
respect to financial matters, the chief financial officer or the
treasurer of the Company, or any other officer having substantially the
same authority and responsibility.
Restricted Subsidiary - see Section 8.4.
SEC means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
Securitization Transaction means any sale, assignment or other
transfer by the Company or any Subsidiary of accounts receivable, lease
receivables or other payment obligations owing to the Company or any
Subsidiary or any interest in any of the foregoing, together in each
case with any collections and other proceeds thereof, any collection or
deposit accounts related thereto, and any collateral, guaranties or
other property or claims in favor of the Company or such Subsidiary
supporting or securing payment by the obligor thereon of, or otherwise
related to, any such receivables.
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Spot Rate for a currency means the rate quoted by Bank of
America as the spot rate for the purchase by Bank of America of such
currency with another currency in accordance with its customary
procedures at approximately 11:00 a.m. (Charlotte time) on the date on
which the foreign exchange computation is made.
Stamping Fee Rate means the rate per annum for accepting a
Canadian Bankers' Acceptance or purchasing a Canadian BA Equivalent
Note equal to the sum of 0.25% plus the Applicable Margin.
Subsidiary of a Person means any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which more than 50% of the voting stock, membership interests
or other equity interests is owned or controlled directly or indirectly
by such Person, or one or more of the Subsidiaries of such Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
Surety Instruments means all letters of credit (including
standby and commercial), bankers' acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
Swap Contract means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity
index swap or option, bond, note or xxxx option, interest rate option,
forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or
any other, similar transaction (including any option to enter into any
of the foregoing) or any combination of the foregoing, and, unless the
context otherwise clearly requires, any master agreement relating to or
governing any or all of the foregoing.
Taxes means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Lender and each Agent, franchise taxes and taxes imposed
on or measured by its net income or capital by the jurisdiction (or any
political subdivision thereof) under the laws of which such Lender or
such Agent, as the case may be, is organized or maintains a lending
office.
Termination Date means the earlier to occur of:
(a) May 12, 2004; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
Total Canadian Outstandings means the combined Canadian
Outstandings of all Canadian Lenders.
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Total Debt to EBITDA Ratio means, for any Computation Period,
the ratio of (a) Total Indebtedness as of the last day of such
Computation Period, to (b) EBITDA for such Computation Period.
Total Indebtedness means, at any time, all Indebtedness of the
Company and its Subsidiaries determined on a consolidated basis and to
the extent not included in the definition of Indebtedness, the
aggregate outstanding investment or claim held at such time by
purchasers, assignees or other transferees of (or of interests in)
receivables or other rights to payment of the Company and its
Subsidiaries in connection with any Securitization Transaction
(regardless of the accounting treatment of such Securitization
Transaction).
Total Outstandings means the sum of the aggregate principal
Dollar Equivalent of all outstanding Loans plus the Effective Amount of
all L/C Obligations.
Total U.S. Outstandings means the sum of the aggregate
principal amount of all outstanding U.S. Loans plus the Effective
Amount of all L/C Obligations.
Type has the meaning specified in the definition of "Loan."
UCP - see Section 3.9.
Unfunded Pension Liability means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of such Plan's assets, determined in accordance with the
assumptions used for funding such Pension Plan pursuant to Section 412
of the Code for the applicable plan year.
United States and U.S. each means the United States of
America.
Unmatured Event of Default means any event or circumstance
which, with the giving of notice, the lapse of time or both, will (if
not cured, waived or otherwise remedied during such time) constitute an
Event of Default.
U.S. Base Rate means, for any day, the higher of: (a) 0.50%
per annum above the latest Federal Funds Rate; and (b) the rate of
interest in effect for such day as publicly announced from time to time
by Bank of America as its "prime rate." (The "prime rate" is a rate set
by Bank of America based upon various factors including Bank of
America's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which may be priced at, above or below such announced rate.) Any change
in the prime rate announced by Bank of America shall take effect at the
opening of business on the day specified in the public announcement of
such change.
U.S. Base Rate Loan means a U.S. Loan that bears interest
based on the U.S. Base Rate.
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U.S. Borrowing means a Borrowing of U.S. Loans.
U.S. Commitment - see Section 2.1. As of the Effective Date,
the amount of the Aggregate U.S. Commitments of all U.S. Lenders is
U.S.$60,000,000.
U.S. Lender means each Lender designated as a U.S. Lender on
its signature page hereto and its permitted successors and assigns.
U.S. Loan means a Loan to the Company denominated in Dollars.
U.S. Pro Rata Share means for any U.S. Lender at any time the
proportion (expressed as a decimal, rounded to the ninth decimal place)
which such U.S. Lender's U.S. Commitment constitutes of the combined
U.S. Commitments (or, after the U.S. Commitments have terminated, which
(i) the principal amount of such U.S. Lender's Loans plus (without
duplication) the participation of such U.S. Lender in (or in the case
of an Issuing Lender, the unparticipated portion of) the Effective
Amount of all L/C Obligations constitutes of (ii) the aggregate
principal amount of all U.S. Loans plus (without duplication) the
Effective Amount of all L/C Obligations).
Van Every Family means (i) a lineal descendant of Salem A. Van
Every, Sr. including adopted persons as well as persons related by
blood, (ii) a spouse, widow or widower of an individual described in
clause (i) above or (iii) a trust, estate, custodian and other
fiduciary or similar account for the benefit of an individual described
in either clause (i) or clause (ii) above.
Wholly-Owned Subsidiary means any Subsidiary in which (other
than directors' qualifying shares required by law) 100% of the capital
stock of each class having ordinary voting power, and 100% of the
capital stock of every other class, or 100% of the membership interests
or other equity interests, as applicable, in each case, at the time as
of which any determination is being made, is owned, beneficially and of
record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.2 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
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(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including"; the words "to" and "until" each mean "to but excluding",
and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided
herein, any reference to any action of any Agent, the Lenders, the Required U.S.
Lenders, the Required Canadian Lenders or the Required Lenders by way of
consent, approval or waiver shall be deemed modified by the phrase "in its/their
sole discretion."
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agents, the
Borrowers and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the Agents
merely because of the Agents' or Lenders' involvement in their preparation.
1.3 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting terms
not expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied; provided that if the Company notifies the Administrative
Agent that the Company wishes to amend any covenant in Article VIII to eliminate
the effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Lenders wish to
amend Article VIII for such purpose), then the Company's compliance with such
covenant shall be determined on the basis of GAAP in effect immediately before
the relevant change in GAAP became effective, until either such notice is
withdrawn or such covenant is amended in a manner satisfactory to the Company
and the Required Lenders.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
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ARTICLE II
THE CREDITS
2.1 Amounts and Terms of U.S. Commitments. Each U.S. Lender severally
agrees (and not jointly or jointly and severally), on the terms and conditions
set forth herein, to make U.S. Loans to the Company from time to time on any
Business Day during the period from the Effective Date to the Termination Date,
in an aggregate amount not to exceed at any time outstanding the amount set
forth on Schedule 2.1 (such amount, as reduced pursuant to Section 2.8 or
changed by one or more assignments under Section 12.8, such U.S. Lender's "U.S.
Commitment"); provided, however, that, after giving effect to any Borrowing, the
Total U.S. Outstandings shall not exceed the Aggregate U.S. Commitment; and
provided, further, that the aggregate principal amount of the U.S. Loans of any
U.S. Lender plus the participation of such U.S. Lender in the Effective Amount
of all L/C Obligations shall not at any time exceed such U.S. Lender's
Commitment. Within the limits of each U.S. Lender's U.S. Commitment, and subject
to the other terms and conditions hereof, the Company may borrow under this
Section 2.1, prepay under Section 2.9 and reborrow under this Section 2.1.
2.2 Amounts and Terms of Canadian Commitments. Each Canadian Lender
severally agrees (and not jointly or jointly and severally), on the terms and
conditions set forth herein, to make Canadian Loans to the Canadian Borrower and
to accept drafts or purchase Canadian BA Equivalent Notes pursuant to Section
2.7 in Canada, from time to time on any Business Day during the period from the
Effective Date to the Termination Date, in an aggregate amount not to exceed at
any time outstanding the amount set forth on Schedule 2.2 (such amount, as
reduced pursuant to Section 2.8 or changed by one or more assignments under
Section 12.8, such Canadian Lender's "Canadian Commitment"); provided, however,
that, after giving effect to any Borrowing, the Total Canadian Outstandings
shall not exceed the Aggregate Canadian Commitment; and provided, further, that
the Canadian Outstandings of any Canadian Lender shall not at any time exceed
such Canadian Lender's Canadian Commitment. Within the limits of each Canadian
Lender's Canadian Commitment, and subject to the other terms and conditions
hereof, the Canadian Borrower may borrow under this Section 2.2, prepay under
Section 2.9 and reborrow under this Section 2.2.
2.3 Loan Accounts. (a) The Loans made by each Lender and the Letters of
Credit Issued by each Issuing Lender shall be evidenced by one or more accounts
or records maintained by such Lender or Issuing Lender, as the case may be, in
the ordinary course of business. The accounts or records maintained by the
Agents, each Issuing Lender and each Lender shall be rebuttable presumptive
evidence of the amount of the Loans made by the Lenders to the Borrowers and the
Letters of Credit Issued for the account of the Company, and the interest and
payments thereon. Any failure so to record or any error in doing so shall not,
however, limit or otherwise affect the obligation of either Borrower hereunder
to pay any amount owing with respect to the Loans or any Letter of Credit.
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(b) Upon the request of any Lender made through an Agent, the Loans
made by such Lender may be evidenced by a Note, instead of or in addition to
loan accounts. Each such Lender shall endorse on the schedules annexed to its
Note the date, amount and maturity of each Loan evidenced thereby and the amount
of each payment of principal made by the applicable Borrower with respect
thereto (or such Lender shall maintain such information in its own records).
Each such Lender is irrevocably authorized by each Borrower to endorse its Note
and each Lender's record shall be rebuttable presumptive evidence of the amount
of the Loans evidenced thereby, and the interest and payments thereon; provided,
however, that the failure of a Lender to make, or an error in making, a notation
thereon or an entry therein with respect to any Loan shall not limit or
otherwise affect the obligations of the Borrowers hereunder or under any such
Note to such Lender.
2.4 Procedure for U.S. Borrowing. (a) Each U.S. Borrowing shall be made
upon the Company's irrevocable written notice delivered to the Administrative
Agent in the form of a Notice of Borrowing, which notice must be received by the
Administrative Agent prior to (i) 11:00 a.m. Charlotte time two Business Days
prior to the requested Borrowing Date, in the case of Offshore Rate Loans, and
(ii) 11:00 a.m. Charlotte time on the requested Borrowing Date, in the case of
U.S. Base Rate Loans, specifying:
(A) the amount of the U.S. Borrowing, which shall be in an
aggregate amount of U.S.$1,000,000 or a higher multiple of
U.S.$500,000;
(B) the requested Borrowing Date, which shall be a Business
Day;
(C) the Type of U.S. Loans comprising such U.S. Borrowing; and
(D) in the case of Offshore Rate Loans, the duration of the
initial Interest Period applicable to such U.S. Loans.
(b) The Administrative Agent will promptly notify each Lender of its
receipt of any Notice of Borrowing and of the amount of such Lender's U.S. Pro
Rata Share of such U.S. Borrowing.
(c) Each Lender will make the amount of its U.S. Pro Rata Share of each
U.S. Borrowing available to the Administrative Agent for the account of the
Company at the Administrative Agent's Payment Office by 1:00 p.m. Charlotte time
on the Borrowing Date requested by the Company in funds immediately available to
the Administrative Agent. The proceeds of all such U.S. Loans will then be made
available to the Company by the Administrative Agent by wire transfer in
accordance with written instructions provided to the Administrative Agent by the
Company of like funds as received by the Administrative Agent.
(d) After giving effect to any U.S. Borrowing, unless the
Administrative Agent otherwise consents, there may not be more than six
different Interest Periods in effect for all U.S. Borrowings.
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2.5 Conversion and Continuation Elections for U.S. Borrowings. (a) The
Company may, upon irrevocable written notice to the Administrative Agent in
accordance with subsection 2.5(b):
(i) elect, as of any Business Day, in the case of U.S. Base
Rate Loans, or as of the last day of the applicable Interest Period, in
the case of Offshore Rate Loans, to convert such U.S. Loans (or any
part thereof in an aggregate amount of U.S.$1,000,000 or a higher
integral multiple of U.S.$500,000) into U.S. Loans of the other Type;
or
(ii) elect, as of the last day of the applicable Interest
Period, to continue any Offshore Rate Loans having Interest Periods
expiring on such day (or any part thereof in an aggregate amount of
U.S.$1,000,000 or a higher integral multiple of U.S.$500,000) for
another Interest Period;
provided that if at any time the aggregate amount of Offshore Rate Loans in
respect of any U.S. Borrowing is reduced, by payment, prepayment, or conversion
of any part thereof, to be less than U.S.$1,000,000, such Offshore Rate Loans
shall automatically convert into U.S. Base Rate Loans.
(b) The Company shall deliver a Notice of Conversion/Continuation to be
received by the Administrative Agent not later than 11:00 a.m. Charlotte time at
least (i) two Business Days in advance of the Conversion/Continuation Date, if
the U.S. Loans are to be converted into or continued as Offshore Rate Loans; and
(ii) on the Conversion/Continuation Date, if the U.S. Loans are to be converted
into U.S. Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of U.S. Loans to be converted or
continued;
(C) the Type of U.S. Loans resulting from the proposed
conversion or continuation; and
(D) in the case of conversion into or continuation of Offshore
Rate Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, the Company shall be deemed
to have elected to convert such Offshore Rate Loans into U.S. Base Rate Loans
effective as of the expiration date of such Interest Period.
(d) The Administrative Agent will promptly notify each U.S. Lender of
its receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Administrative Agent will promptly notify each U.S.
Lender of the details of any
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automatic conversion. All conversions and continuations shall be made ratably
among the U.S. Lenders according to the respective outstanding principal amounts
of the U.S. Loans with respect to which the notice was given.
(e) Unless the Required U.S. Lenders otherwise consent, the Company may
not elect to have a U.S. Loan converted into or continued as an Offshore Rate
Loan during the existence of an Event of Default or Unmatured Event of Default.
(f) After giving effect to any conversion or continuation of U.S.
Loans, unless the Administrative Agent shall otherwise consent, there may not be
more than six different Interest Periods in effect for all U.S. Borrowings.
2.6 Procedure for Canadian Borrowing of Canadian Prime Rate Loans. (a)
Each Canadian Borrowing of Canadian Prime Rate Loans shall be made upon the
Canadian Borrower's irrevocable written notice delivered to the Canadian Agent
in the form of a Notice of Borrowing, which notice must be received by the
Canadian Agent prior to 11:00 a.m. Toronto time on the requested Borrowing Date,
in the case of Canadian Prime Rate Loans, specifying:
(E) the amount of the Canadian Borrowing, which shall be in an
aggregate amount of C$1,000,000 or a higher multiple of C$100,000; and
(F) the requested Borrowing Date, which shall be a Business
Day.
(b) The Canadian Agent will promptly notify each Canadian Lender of its
receipt of any Notice of Borrowing and of the amount of such Canadian Lender's
Canadian Pro Rata Share of such Canadian Borrowing.
(c) Each Canadian Lender will make the amount of its Canadian Pro Rata
Share of each Canadian Borrowing available to the Canadian Agent for the account
of the Canadian Borrower at the Canadian Agent's Payment Office by 1:00 p.m.
Toronto time on the Borrowing Date requested by the Canadian Borrower in funds
immediately available to the Canadian Agent. The proceeds of all such Loans will
then be made available to the Canadian Borrower by the Canadian Agent by wire
transfer in accordance with written instructions provided to the Canadian Agent
by the Canadian Borrower of like funds as received by the Canadian Agent.
2.7 Canadian Bankers' Acceptances and Canadian BA Equivalent Notes.
2.7.1 Commitments to Accept Drafts and Purchase Canadian BA Equivalent
Notes. Each Canadian Lender severally agrees, on the terms and conditions set
forth herein, (i) in the case of a Canadian BA Lender, to accept drafts (each
such draft, a "Draft") drawn by the Canadian Borrower upon such Canadian BA
Lender and (ii) in the case of a Canadian Non-BA Lender, to purchase
non-interest-bearing promissory notes of the Canadian Borrower in favor of such
Canadian Non-BA Lender (each such promissory note, a "Canadian BA Equivalent
Note"), in each case in an aggregate face amount not to exceed at any time
outstanding such Canadian
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Lender's Canadian Pro Rata Share of the amount of the combined Canadian
Commitments; provided that, after giving effect to any Canadian BA Borrowing,
the Total Canadian Outstandings shall not exceed the combined Canadian
Commitments; and provided, further, that the Canadian Outstandings of any
Canadian Lender shall not at any time exceed such Canadian Lender's Canadian
Commitment.
2.7.2 Procedure for Canadian Bankers' Acceptances. (a) Each Canadian BA
Borrowing shall be made upon the Canadian Borrower's irrevocable written notice
delivered to the Canadian Agent in the form of a Notice of Canadian BA
Borrowing, which notice must be received by the Canadian Agent prior to 12:00
noon (Toronto time) one Business Day prior to the requested Borrowing Date,
specifying:
(i) the amount of such Canadian BA Borrowing, which shall be
in an aggregate amount of not less than C$1,000,000 or a higher
integral multiple of C$100,000;
(ii) the requested Borrowing Date, which shall be a Business
Day; and
(iii) the term for the Canadian Bankers' Acceptances and
Canadian BA Equivalent Notes included in such Canadian BA Borrowing,
which shall be 30, 60, 90 or 180 days (provided that such term may not
extend beyond the scheduled Termination Date).
(b) The Canadian Agent will promptly notify each Canadian Lender of its
receipt of any Notice of Canadian BA Borrowing and shall (i) advise each
Canadian BA Lender of the face amount and term of each Draft to be accepted by
it, and (ii) advise each Canadian Non-BA Lender of the face amount and term of
the Canadian BA Equivalent Note to be purchased by it. The term of all Canadian
Bankers' Acceptances and Canadian BA Equivalent Notes issued pursuant to any
Notice of Canadian BA Borrowing shall be identical. Each Canadian Bankers'
Acceptance and Canadian BA Equivalent Note shall be dated the Borrowing Date on
which it is issued and shall be in a face amount of C$100,000 or an integral
multiple thereof. The aggregate face amount of the Drafts to be accepted at any
time by a Canadian BA Lender, and the face amount of the Canadian BA Equivalent
Note to be purchased at any time by a Canadian Non-BA Lender, shall be
determined by the Canadian Agent based upon the amounts of the respective
Canadian Commitments, except that, if the face amount of any Draft to be
accepted by a Canadian BA Lender or of the Canadian BA Equivalent Note to be
purchased by a Canadian Non-BA Lender, determined as aforesaid, would not be
C$100,000 or an integral multiple thereof, the Canadian Agent in its sole
discretion may increase such face amount to the nearest integral multiple of
C$100,000 or may reduce such face amount to the nearest integral multiple of
C$100,000.
(c) Each Canadian BA Lender shall complete and accept on the applicable
Borrowing Date Drafts having the face amounts and term advised by the Canadian
Agent pursuant to subsection (b) above. Each Canadian BA Lender shall purchase
from the Canadian Borrower on the applicable Borrowing Date the Canadian
Bankers' Acceptances accepted by it,
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for an aggregate price equal to the Canadian BA Discount Proceeds of such
Canadian Bankers' Acceptances.
(d) Each Canadian Non-BA Lender shall, in lieu of accepting Drafts or
purchasing Canadian Bankers' Acceptances on any Borrowing Date, complete and
purchase from the Canadian Borrower on such Borrowing Date a Canadian BA
Equivalent Note in a face amount and for a term identical to the aggregate face
amount and term of the Drafts which such Canadian Non-BA Lender would have been
required to accept on such Borrowing Date if it were a Canadian BA Lender, for a
price equal to the Canadian BA Discount Proceeds of such Canadian BA Equivalent
Note.
(e) Upon acceptance of each Draft or purchase of each Canadian BA
Equivalent Note, the Canadian Borrower shall pay to the applicable Canadian
Lender the related fee specified in Section 2.12(d), and to facilitate payment
such Canadian Lender shall be entitled to deduct and retain for its own account
the amount of such fee from the amount to be transferred by such Canadian Lender
to the Canadian Agent for the account of the Canadian Borrower pursuant to
subsection 2.7.2(f) in respect of the sale of the related Canadian Bankers'
Acceptance or of such Canadian BA Equivalent Note.
(f) Each Canadian Lender shall transfer for value on each applicable
Borrowing Date in immediately available Canadian Dollars an aggregate amount
equal to the amount of all Canadian BA Discount Proceeds in respect of any
Canadian Bankers' Acceptance or Canadian BA Equivalent Note purchased by it on
such Borrowing Date, in each case net of the related fee payable to such
Canadian Lender pursuant to Section 2.12(d), to the Canadian Agent's Payment
Office. Subject to any direction given to the Canadian Agent by the Canadian
Borrower, the Canadian Agent shall make all such amounts received by it from the
Canadian Lenders as aforesaid available to the Canadian Borrower by depositing
the same for value on the applicable Borrowing Date to such account in the name
of the Canadian Borrower as the Canadian Borrower shall have previously
designated by timely notice in writing to the Canadian Agent.
2.7.3 Maturity of Canadian Bankers' Acceptances. On the date of
maturity of each Canadian Bankers' Acceptance or Canadian BA Equivalent Note,
the Canadian Borrower shall pay to the Canadian Agent, for the account of the
Canadian Lender which accepted such Canadian Bankers' Acceptance or the holder
of such Canadian BA Equivalent Note, Canadian Dollars in an amount equal to the
face amount of such Canadian Bankers' Acceptance or Canadian BA Equivalent Note,
as the case may be. The obligation of the Canadian Borrower to make such payment
shall not be prejudiced by the fact that the holder of any such Canadian
Bankers' Acceptance is the Canadian Lender that accepted such Canadian Bankers'
Acceptance. No days of grace shall be claimed by the Canadian Borrower for the
payment at maturity of any Canadian Bankers' Acceptance or Canadian BA
Equivalent Note. If the Canadian Borrower does not make such payment, from the
proceeds of Loans or the issuance of Canadian Bankers' Acceptances and/or
Canadian BA Equivalent Notes hereunder or otherwise, the Canadian Lender that
accepted such Canadian Bankers' Acceptance or initially purchased such Canadian
BA Equivalent Note may (but shall not be obliged to), without receipt of a
Notice of Canadian Borrowing and irrespective of whether any other applicable
conditions precedent specified
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herein have been satisfied, and without waiver of the Canadian Borrower's
failure to make such payment, make a Canadian Prime Rate Loan to the Canadian
Borrower in the face amount of such Canadian Bankers' Acceptance or Canadian BA
Equivalent Note, as the case may be, and shall forthwith give notice thereof to
the Canadian Borrower and the Canadian Agent (which shall promptly give similar
notice to the other Canadian Lenders). The Canadian Borrower agrees to accept
each such Canadian Prime Rate Loan and irrevocably authorizes and directs the
applicable Canadian Lender to apply the proceeds thereof in payment of the
liability of the Canadian Borrower with respect to the related Canadian Bankers'
Acceptance or Canadian BA Equivalent Note. Notwithstanding any other provision
hereof, all Canadian Prime Rate Loans made as contemplated by this Section 2.7.3
shall be payable on demand by the Canadian Agent or the Required Canadian
Lenders.
2.7.4 Special Provisions for Canadian Bankers' Acceptances. If the
Canadian Agent determines in good faith, which determination shall be final,
conclusive and binding upon the Canadian Borrower, and so notifies the Canadian
Borrower, that there does not exist at the applicable time a normal market in
Canada for the purchase and sale of bankers' acceptances, any right of the
Canadian Borrower to require the Canadian Lenders to purchase Canadian Bankers'
Acceptances and Canadian BA Equivalent Notes hereunder shall be suspended until
the Canadian Agent determines that such market does exist and gives notice
thereof to the Canadian Borrower, and any Notice of Canadian BA Borrowing shall
be deemed to be a Notice of Canadian Borrowing requesting Canadian Prime Rate
Loans in a similar aggregate principal amount.
2.7.5 Power of Attorney for Drafts and Canadian BA Equivalent Notes. To
facilitate availment of Canadian Bankers' Acceptances and Canadian BA Equivalent
Notes, the Canadian Borrower hereby appoints each Canadian Lender as its
attorney to sign and endorse on its behalf (in accordance with a Notice of
Canadian BA Borrowing), in handwriting or by facsimile or mechanical signature
as and when deemed necessary by such Canadian Lender, blank forms of (a) in the
case of a Canadian BA Lender, Drafts in the form requested by such Lender, and
(b) in the case of a Canadian Non-BA Lender, Canadian BA Equivalent Notes in the
form of Exhibit F. In this respect, it is each Canadian Lender's responsibility
to maintain an adequate supply of blank forms of Drafts or Canadian BA
Equivalent Notes for acceptance or purchase, as applicable, under this
Agreement. The Canadian Borrower recognizes and agrees that all Canadian
Bankers' Acceptances and Canadian BA Equivalent Notes signed and/or endorsed by
a Canadian Lender on behalf of the Canadian Borrower shall bind the Canadian
Borrower as fully and effectually as if signed in the handwriting of and duly
issued by the proper signing officers of the Canadian Borrower. Each Canadian
Lender is hereby authorized (in accordance with a Notice of Canadian BA
Borrowing) to issue such Canadian Bankers' Acceptances or Canadian BA Equivalent
Notes, as appropriate, endorsed in blank in such face amounts as may be
determined by such Canadian Lender; provided that the aggregate amount thereof
is equal to the aggregate amount of Canadian Bankers' Acceptance or Canadian BA
Equivalent Notes required to be accepted or purchased by such Canadian Lender.
Each Canadian Lender may at any time and from time to time hold, sell,
rediscount, or otherwise dispose of any or all Canadian Bankers' Acceptances
accepted and purchased by it. No Canadian Lender shall be liable for any damage,
loss or other claim arising by reason of any loss or improper use of any such
instrument, except to the extent resulting from the gross negligence or willful
misconduct of such Canadian
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Lender or its officers, employees, agents or representatives. Each Canadian
Lender shall maintain a record with respect to Canadian Bankers' Acceptances or
Canadian BA Equivalent Notes (i) accepted and purchased by it hereunder; and
(ii) canceled at maturity.
To facilitate the acceptance of Canadian Bankers' Acceptances
hereunder, the Canadian Borrower hereby authorizes the Canadian Lenders and
irrevocably appoints each of the Canadian Lenders as its attorney, respectively:
(a) to complete and sign on the Canadian Borrower's behalf, either
manually or by facsimile or mechanical signature, the Drafts
to create the Canadian Bankers' Acceptances (with, in each
Canadian Lender's discretion, the inscription "This is a
depository xxxx subject to the Depository Bills and Notes Act
(Canada)");
(b) after the acceptance thereof by any Canadian Lender, to
endorse on the Canadian Borrower's behalf, either manually or
by facsimile or mechanical signature, such Canadian Bankers'
Acceptances in favor of the applicable purchaser or endorsee
thereof including, in such Canadian Lender's discretion, such
Canadian Lender or a clearing house (as defined by the
Depository Bills and Notes Act (Canada));
(c) to deliver such Canadian Bankers' Acceptances to such
purchaser or to deposit such Canadian Bankers' Acceptances
with such clearing house; and
(d) to comply with the procedures and requirements established
from time to time by such Canadian Lender or such clearing
house in respect of the delivery, transfer and collection of
bankers' acceptances and depository bills.
All Canadian Bankers' Acceptances so completed, signed, endorsed, delivered or
deposited by a Canadian Lender on behalf of the Canadian Borrower shall be
binding upon the Canadian Borrower as if completed, signed, endorsed, delivered
or deposited by it. The records of the Canadian Lenders and such clearing houses
shall, in the absence of manifest error, be conclusively binding on the Canadian
Borrower. None of the Canadian Lenders shall be liable for any claim arising by
reason of any loss or improper use of such Drafts or Canadian Bankers'
Acceptances except for damages suffered by the Canadian Borrower caused by the
willful misconduct or gross negligence of such Canadian Lender.
2.7.6 Prepayment through Escrowed Funds. The Canadian Borrower may
effect prepayment from time to time of Canadian Bankers' Acceptances and
Canadian BA Equivalent Notes in whole or in part, in an aggregate amount of
C$1,000,000 or a higher integral multiple of C$100,000, by depositing into an
escrow account maintained by and in the name of the Canadian Agent for the
benefit of the Canadian Lenders in accordance with their Canadian Pro Rata
Shares an amount equal to the Canadian Lenders' maximum potential liability (as
determined by the Canadian Agent) under then outstanding Canadian Bankers'
Acceptances being prepaid plus the amount of Canadian BA Equivalent Notes being
prepaid plus interest to accrue on such prepaid amount to maturity (the "Escrow
Funds"). The Escrow Funds shall be held by the Canadian Agent for set-off
against future Obligations of the Canadian Borrower and pending such application
shall bear interest at the rate declared by the Canadian Agent from time
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to time as that payable by it in respect of deposits for such amount and for
such period relative to the maturity date of the Canadian Bankers' Acceptances
and Canadian BA Equivalent Notes, as applicable. At the time of such prepayment,
the Canadian Borrower shall grant to the Canadian Agent, for the benefit of the
Canadian Agent and the Canadian Lenders, a security interest in the Escrow Funds
pursuant to documentation in form and substance reasonably acceptable to the
Canadian Agent and the Required Canadian Lenders.
2.8 Voluntary Termination or Reduction of Commitments. (a) The Company
may, upon not less than five Business Days' prior notice to the Administrative
Agent, terminate the U.S. Commitments, or permanently reduce the U.S.
Commitments by a minimum amount of U.S.$1,000,000 or a higher integral multiple
of U.S.$500,000; unless, after giving effect thereto and to any prepayments of
U.S. Loans made on the effective date thereof, the Total U.S. Outstandings would
exceed the amount of the combined U.S. Commitments then in effect. Once reduced
in accordance with this Section, the U.S. Commitments may not be increased. Any
reduction of the U.S. Commitments shall be applied to reduce the U.S. Commitment
of each U.S. Lender according to its U.S. Pro Rata Share. If the Company
terminates the U.S. Commitments or reduces the U.S. Commitments to zero, the
Company shall pay all accrued and unpaid interest, fees and other amounts
payable hereunder on the date of such termination.
(b) The Canadian Borrower may, upon not less than five Business Days'
prior notice to the Canadian Agent, terminate the Canadian Commitments, or
permanently reduce the Canadian Commitments by a minimum amount of C$1,000,000
or a higher integral multiple of C$100,000; unless, after giving effect thereto
and to any prepayments of Canadian Loans made on the effective date thereof, the
aggregate principal amount of Canadian Loans outstanding would exceed the amount
of the combined Canadian Commitments then in effect. Once reduced in accordance
with this Section, the Canadian Commitments may not be increased. Any reduction
of the Canadian Commitments shall be applied to reduce the Canadian Commitment
of each Canadian Lender according to its Canadian Pro Rata Share. If the Company
terminates the Canadian Commitments or reduces the Canadian Commitments to zero,
the Company shall pay all accrued and unpaid interest, fees and other amounts
payable hereunder on the date of such termination.
2.9 Optional Prepayments. (a) Subject to the proviso to subsection
2.5(a) and to Section 4.4, the Company may, from time to time, upon irrevocable
notice to the Administrative Agent, which notice must be received by the
Administrative Agent prior to 11:00 a.m. Charlotte time (i) two Business Days
prior to the date of prepayment, in the case of Offshore Rate Loans, and (ii) on
the date of prepayment, in the case of U.S. Base Rate Loans, ratably prepay U.S.
Loans in whole or in part, in an aggregate amount of U.S.$1,000,000 or a higher
integral multiple of U.S.$500,000 (or, if any U.S. Base Rate Loans have been
made pursuant to subsection 3.3(d), in an aggregate amount equal to the
aggregate amount of such U.S. Base Rate Loans). Such notice of prepayment shall
specify the date and amount of such prepayment and the U.S. Loans to be prepaid.
The Administrative Agent will promptly notify each U.S. Lender of its receipt of
any such notice and of such Lender's U.S. Pro Rata Share of such prepayment. If
such notice is given by the Company, the Company shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date
specified therein, together with, in
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the case of Offshore Rate Loans, accrued interest to such date on the amount
prepaid and any amounts required pursuant to Section 4.4.
(b) The Canadian Borrower may, from time to time, upon irrevocable
notice to the Canadian Agent, which notice must be received by the Canadian
Agent prior to 11:00 a.m. Toronto time on the date of prepayment, ratably prepay
Canadian Prime Rate Loans in whole or in part, in an aggregate amount of
C$1,000,000 or a higher integral multiple of C$100,000. Such notice of
prepayment shall specify the date and amount of such prepayment and the Canadian
Prime Rate Loans to be prepaid. The Canadian Agent will promptly notify each
Canadian Lender of its receipt of any such notice and of such Canadian Lender's
Canadian Pro Rata Share of such prepayment. If such notice is given by the
Canadian Borrower, the Canadian Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.
2.10 Repayment. The Company shall repay all U.S. Loans on the
Termination Date. The Canadian Borrower shall repay all Canadian Loans on the
Termination Date.
2.11 Interest. (a) Each U.S. Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to (i) the Offshore Rate plus the Applicable Margin or (ii)
the U.S. Base Rate, as the case may be (and subject to the Company's right to
convert to the other Type of U.S. Loan under Section 2.5).
(b) Each Canadian Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Canadian Prime Rate.
(c) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest also shall be paid on the date of any conversion of Fixed
Rate Loans under Section 2.5 or 2.7 and prepayment of Fixed Rate Loans under
Section 2.9, in each case for the portion of the Loans so converted or prepaid.
(d) Notwithstanding the foregoing provisions of this Section, upon
notice to the Borrowers from the Administrative Agent (acting at the request or
with the consent of the Required Lenders) during the existence of any Event of
Default, and for so long as such Event of Default continues, the Borrowers shall
pay interest (after as well as before entry of judgment thereon to the extent
permitted by law) on the principal amount of all outstanding Loans and, to the
extent permitted by Applicable Law, on any other amount payable hereunder or
under any other Loan Document, at a rate per annum which is determined by adding
2% per annum to the rate otherwise applicable thereto pursuant to the terms
hereof or such other Loan Document (or, if no such rate is specified, the U.S.
Base Rate or, in the case of Canadian Loans, the Canadian Prime Rate). All such
interest shall be payable on demand.
(e) Anything herein to the contrary notwithstanding, the obligations of
the Borrowers to any Lender hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Lender would be
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contrary to the provisions of any law applicable to such Lender limiting the
highest rate of interest that may be lawfully contracted for, charged or
received by such Lender, and in such event the applicable Borrower shall pay
such Lender interest at the highest rate permitted by Applicable Law.
(f) Notwithstanding any provision hereof, in no event shall the
aggregate "interest" (as defined in section 347 of the Criminal Code (Canada))
payable by the Canadian Borrower hereunder exceed the effective annual rate of
interest on the "credit advanced" (as defined in such section 347) hereunder
lawfully permitted by such section 347, and if any payment, collection or demand
pursuant to this Agreement in respect of "interest" (as defined in such section
347) is determined to be contrary to the provisions of such section 347, such
payment, collection or demand shall be deemed to have been made by mutual
mistake of the Canadian Borrower and the applicable Canadian Lender and the
amount of such payment or collection shall be refunded to the Canadian Borrower.
For the purposes of this Agreement, the effective annual rate of interest shall
be determined in accordance with generally accepted actuarial practices and
principles over the relevant term and, in the event of dispute, a certificate of
a Fellow of the Canadian Institute of Actuaries appointed by the Canadian Agent
will be prima facia evidence of such rate.
(g) For the purpose of the Interest Act (Canada) and any other purpose,
(i) the principle of deemed reinvestment of interest shall not apply to any
calculation under this Agreement and (ii) the rates of interest and fees
stipulated in this Agreement are intended to be nominal rates and effective
rates or yields.
2.12 Fees. In addition to certain fees described in Section 3.8:
(a) Arrangement, Agency Fees. The Company agrees to pay to the
Administrative Agent and the Arranger such fees at such times and in such
amounts as are set forth in the fee letter dated March 13, 2000 to the Company
from Bank of America and the Arranger, as it may be amended or replaced from
time to time (the "Fee Letter").
(b) Upfront Fees. The Canadian Borrower shall pay to each Canadian
Lender an upfront fee equal to U.S.$5,000, such upfront fee to be due and
payable on the Effective Date.
(c) Facility Fees. The Company shall pay to the Administrative Agent
for the account of each U.S. Lender a facility fee computed at the Facility Fee
Rate per annum on the amount of such U.S. Lender's U.S. Commitment as in effect
from time to time (whether used or unused) or, if the U.S. Commitments have
terminated, on the sum (without duplication) of (i) the principal amount of such
U.S. Lender's U.S. Loans plus (ii) the participation of such U.S. Lender in (or
in the case of an Issuing Lender, its unparticipated portion of) the Effective
Amount of all L/C Obligations. The Canadian Borrower shall pay to the Canadian
Agent for the account of each Canadian Lender a facility fee computed at the
Facility Fee Rate per annum on the amount of such Canadian Lender's Canadian
Commitment as in effect from time to time (whether used or unused) or, if the
Canadian Commitments have terminated, on the principal amount of such Canadian
Lender's Canadian Loans. Such facility fees shall accrue from the Effective Date
to the Termination Date, and thereafter until all Loans are paid in full and, in
the case of facility
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fees payable by the Company, all Letters of Credit are terminated, and shall be
due and payable quarterly in arrears on the last Business Day of each calendar
quarter, with the final payment to be made on the Termination Date (or, if
later, on the date all Loans are paid in full and all Letters of Credit are
terminated).
(d) Canadian BA Fees. The Canadian Borrower shall pay to each Canadian
BA Lender in respect of each Draft tendered by the Canadian Borrower to and
accepted by such Canadian BA Lender, and to each Canadian Non-BA Lender in
respect of each Canadian BA Equivalent Note tendered to and purchased by such
Canadian Non-BA Lender, as a condition of such acceptance or purchase, a fee in
Canadian Dollars calculated at a rate per annum equal to the Stamping Fee Rate,
on the basis of the face amount and the term of such Bankers' Acceptance or
Canadian BA Equivalent Note (it being understood that the Canadian Borrower's
obligation to make such payment shall be satisfied to the extent that the
applicable Canadian Lender nets the amount of such fee against the amount to be
transferred to the Agent in respect of the applicable Canadian Bankers'
Acceptance or Canadian BA Equivalent Note, as contemplated by subsection
2.7.2(f)).
2.13 Computation of Fees and Interest. (a) All computations of interest
on (i) U.S. Base Rate Loans when the U.S. Base Rate is determined by Bank of
America's "prime rate" and (ii) Canadian Prime Rate Loans and all computations
of the Stamping Fee Rate shall in each case be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other
computations of interest and fees shall be made on the basis of a 360-day year
and actual days elapsed. Interest and fees shall accrue during each period
during which such interest or such fees are computed from the first day thereof
to the last day thereof.
(b) Each determination of an interest rate by an Agent and each
determination of the Canadian BA Discount Rate or the CDOR by the Canadian Agent
shall be conclusive and binding on the Borrowers and the Lenders in the absence
of manifest error. Each Agent will, at the request of a Borrower or any Lender,
deliver to such Borrower or such Lender, as the case may be, a statement showing
the quotations used by the such Agent in determining any interest rate and the
resulting interest rate.
2.14 Payments by the Company. (a) All payments to be made by the
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Administrative Agent for the account of the U.S. Lenders at the
Administrative Agent's Payment Office, and shall be made in U.S. Dollars and in
immediately available funds, no later than 2:00 p.m. Charlotte time on the date
specified herein. The Administrative Agent will promptly distribute to each U.S.
Lender its U.S. Pro Rata Share (or other applicable share as expressly provided
herein) of such payment in like funds as received. Any payment received by the
Administrative Agent later than 2:00 p.m. Charlotte time shall be deemed to have
been received on the following Business Day and any applicable interest or fee
shall continue to accrue.
(b) All payments to be made by the Canadian Borrower shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Canadian Borrower shall be made to the
Canadian Agent for the account of the
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Canadian Lenders at the Canadian Agent's Payment Office, and shall be made in
Canadian Dollars and in immediately available funds, no later than 2:00 p.m.
Toronto time on the date specified herein. The Canadian Agent will promptly
distribute to each Canadian Lender its Canadian Pro Rata Share (or other
applicable share as expressly provided herein) of such payment in like funds as
received. Any payment received by the Canadian Agent later than 2:00 p.m.
Toronto time shall be deemed to have been received on the following Business Day
and any applicable interest or fee shall continue to accrue.
(c) Whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day (unless, in the case of
a payment with respect to an Offshore Rate Loan, the following Business Day is
in another calendar month, in which case such payment shall be made on the
preceding Business Day), and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be.
(d) Unless the applicable Agent receives notice from a Borrower prior
to the date on which any payment is due to the Lenders that such Borrower will
not make such payment in full as and when required, such Agent may assume that
such Borrower has made such payment in full to such Agent on such date in
immediately available funds and such Agent may (but shall not be so required),
in reliance upon such assumption, distribute to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent such
Borrower has not made such payment in full to such Agent, each Lender shall
repay to such Agent on demand such amount distributed to such Lender, together
with interest thereon at (in the case of amounts in U.S. Dollars) the Federal
Funds Rate or (in the case of amounts in Canadian Dollars) the Canadian Cost of
Funds Rate for each day from the date such amount is distributed to such Lender
until the date repaid.
2.15 Payments by the Lenders to the Applicable Agent. (a) Unless the
applicable Agent receives notice from a Lender (i) at least one Business Day
prior to the date of a Borrowing of Fixed Rate Loans or Canadian BA Borrowing,
(ii) by 12:00 noon Charlotte time on the day of any Borrowing of U.S. Base Rate
Loans or (iii) by 12:00 noon Toronto time on the day of any Borrowing of
Canadian Prime Rate Loans, that such Lender will not make available as and when
required hereunder to such Agent for the account of the applicable Borrower the
amount of such Lender's applicable pro rata share of such Credit Extension, such
Agent may assume that such Lender has made such amount available to such Agent
in immediately available funds on the Borrowing Date and such Agent may (but
shall not be so required), in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount.
(b) If and to the extent any Lender shall not have made its full amount
of any Loan available to such Agent in immediately available funds and such
Agent in such circumstances has made available to such Borrower such amount,
such Lender shall on the Business Day following such Borrowing Date make such
amount available to such Agent, together with interest at (in the case of
amounts in U.S. Dollars) the Federal Funds Rate or (in the case of amounts in
Canadian Dollars) the Canadian Cost of Funds Rate. If such amount is so made
available, such payment to such Agent shall constitute such Lender's Loan on the
date of Borrowing for all purposes of this Agreement. If such amount is not made
available to such
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Agent on the Business Day following the Borrowing Date, such Agent will notify
the applicable Borrower of such failure to fund and, upon demand by such Agent,
such Borrower shall pay such amount to such Agent for such Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the interest rate applicable at the time
to the Loans comprising such Borrowing.
(c) If and to the extent that any Canadian Lender shall not have made
the full amount required pursuant to subsection 2.7.2(e) available to the
Canadian Agent in immediately available funds on the applicable Borrowing Date,
and the Canadian Agent in such circumstances has made available to the Canadian
Borrower such amount pursuant to subsection (a) above, the Canadian Agent shall
be entitled to recover from the Canadian Borrower, on demand the corresponding
amount made available by the Canadian Agent to the Canadian Borrower as
aforesaid, together with interest thereon at the rate applicable hereunder to
Canadian Prime Rate Loans. If, after the applicable Borrowing Date but prior to
such time as the Canadian Agent has demanded repayment from the Canadian
Borrower as permitted by the preceding sentence, the funds required to be made
available by the applicable Canadian Lender are in fact received by the Canadian
Agent, the Canadian Agent shall be entitled to retain such funds for its own
account and the corresponding amount made available by the Canadian Agent to the
Canadian Borrower on such Borrowing Date shall, notwithstanding the preceding
sentence, be deemed to have been the proceeds of a Canadian Bankers' Acceptance
or a Canadian BA Equivalent Note, as the case may be, made available by such
Canadian Lender to the Canadian Borrower on such Borrowing Date and such
Canadian Lender shall pay to the Canadian Agent on demand interest at the
Canadian Cost of Funds Rate for the period from such Borrowing Date to the date
on which such funds are received by the Canadian Agent.
(d) A notice of an Agent submitted to any Lender with respect to
amounts owing under subsection (b) or (c) above shall be conclusive absent
manifest error.
(e) The failure of any Lender to make any Loan on any Borrowing Date
shall not relieve any other Lender of any obligation hereunder to make a 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 any Borrowing
Date.
2.16 Sharing of Payments. If when an Event of Default occurs and is
continuing, any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff or otherwise) on account of any
Loan, Canadian Bankers' Acceptance or Canadian BA Equivalent Note (other than
pursuant to the terms of Sections 4.1, 4.3 and 4.4) in excess of its pro rata
share of payments then or therewith obtained by all Lenders, such Lender shall
purchase from the other Lenders such participations in Loans, Canadian Bankers'
Acceptances and/or Canadian BA Equivalent Notes made by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each Lender which
has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Lender's ratable share (according to the
proportion of
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(a) the amount of such selling Lender's required repayment to
the purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 12.10) with respect to such participation as
fully as if such Lender were the direct creditor of the applicable Borrower in
the amount of such participation. If under any applicable bankruptcy, insolvency
or other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section to share in the benefits
of any recovery on such secured claim. The Lenders may, without the consent of
either Borrower or any other Person, make arrangements among themselves to amend
or otherwise modify this subsection (b) and to establish different sharing
arrangements with respect to payments by or on behalf of the Borrowers; provided
that any such amendment, modification or sharing arrangement shall be consented
to by all Lenders.
ARTICLE III
THE LETTERS OF CREDIT
3.1 The Letter of Credit Subfacility. (a) On the terms and conditions
set forth herein (i) each Issuing Lender agrees, (A) from time to time on any
Business Day during the period from the Effective Date to the Termination Date
to issue Letters of Credit for the account of the Company, and to amend or renew
Letters of Credit previously issued by it, in accordance with subsections 3.2(c)
and 3.2(d), and (B) to honor properly drawn drafts under the Letters of Credit
issued by it; and (ii) the U.S. Lenders severally agree to participate in
Letters of Credit Issued for the account of the Company; provided that no
Issuing Lender shall be obligated to Issue, and no U.S. Lender shall be
obligated to participate in, any Letter of Credit if as of the date of Issuance
of such Letter of Credit (the "Issuance Date") (1) the Total U.S. Outstandings
exceed the Aggregate U.S. Commitment, (2) the Effective Amount of all L/C
Obligations would exceed the L/C Commitment or (3) the participation of any U.S.
Lender in the Effective Amount of all L/C Obligations plus the outstanding
principal amount of the U.S. Loans of such U.S. Lender would exceed such U.S.
Lender's U.S. Commitment. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Company's ability to obtain Letters of Credit
shall be fully revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
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(b) No Issuing Lender shall be under any obligation to Issue any Letter
of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such Issuing Lender from Issuing such Letter of Credit, or any
Requirement of Law applicable to such Issuing Lender or any request or
directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Lender shall
prohibit, or request that such Issuing Lender refrain from, the
Issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon such Issuing Lender with respect to
such Letter of Credit any restriction, reserve or capital requirement
(for which such Issuing Lender is not otherwise compensated hereunder)
not in effect on the Effective Date, or shall impose upon such Issuing
Lender any unreimbursed loss, cost or expense which was not applicable
on the Effective Date and which such Issuing Lender in good xxxxx xxxxx
material to it (it being understood that the applicable Issuing Lender
shall promptly notify the Company and the Administrative Agent of any
of the foregoing events or circumstances);
(ii) such Issuing Lender has received written notice from any
Lender, the Administrative Agent or the Company, on or prior to the
Business Day prior to the requested date of Issuance of such Letter of
Credit, that one or more of the applicable conditions contained in
Article V is not then satisfied;
(iii) the expiry date of such requested Letter of Credit is
after the Termination Date, unless all of the U.S. Lenders have
approved such expiry date in writing;
(iv) such Letter of Credit does not provide for drafts, or is
not otherwise in form and substance acceptable to such Issuing Lender,
or the Issuance of a Letter of Credit shall violate any applicable
policies of such Issuing Lender; or
(v) such Letter of Credit is denominated in a currency other
than U.S. Dollars.
3.2 Issuance, Amendment and Renewal of Letters of Credit. (a) Each
Letter of Credit shall be issued upon the irrevocable written request of the
Company received by the applicable Issuing Lender (with a copy sent by the
Company to the Administrative Agent) at least one Business Day (or such shorter
time as the applicable Issuing Lender and the Administrative Agent may agree in
a particular instance in their sole discretion) prior to the proposed date of
issuance. Each such request for issuance of a Letter of Credit shall be by
facsimile, confirmed immediately (by messenger or overnight courier) in an
original writing, in the form of an L/C Application, and shall specify in form
and detail satisfactory to the applicable Issuing Lender: (i) the face amount of
the Letter of Credit; (ii) the expiry date of the Letter of Credit; (iii) the
name and address of the beneficiary thereof; (iv) the documents to be presented
by the beneficiary of the Letter of Credit in case of any drawing thereunder;
(v) the full text of
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any certificate to be presented by the beneficiary in case of any drawing
thereunder; and (vi) such other matters as such Issuing Lender may require.
(b) Promptly upon receipt of any L/C Application or L/C Amendment
Application, the applicable Issuing Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such L/C Application or L/C Amendment Application from the Company and,
if not, such Issuing Lender will provide the Administrative Agent with a copy
thereof. Unless the applicable Issuing Lender has received on or before the
Business Day immediately preceding the date such Issuing Lender is to issue a
requested Letter of Credit, (A) notice from the Administrative Agent directing
such Issuing Lender not to issue such Letter of Credit because such issuance is
not then permitted under subsection 3.1(a) as a result of the limitations set
forth in clauses (1) through (3) thereof or (B) a notice described in subsection
3.1(b)(ii), then, subject to the terms and conditions hereof, such Issuing
Lender shall, on the requested date, issue a Letter of Credit for the account of
the Company in accordance with such Issuing Lender's usual and customary
business practices.
(c) From time to time while a Letter of Credit is outstanding and prior
to the Termination Date, the applicable Issuing Lender will, upon the written
request of the Company received by such Issuing Lender (with a copy sent by the
Company to the Administrative Agent) at least one Business Day (or such shorter
time as the applicable Issuing Lender and the Administrative Agent may agree in
a particular instance in their sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile, confirmed
immediately (by messenger or overnight courier) in an original writing, made in
the form of an L/C Amendment Application and shall specify in form and detail
satisfactory to such Issuing Lender: (i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of such Letter of Credit (which shall be a
Business Day); (iii) the nature of the proposed amendment; and (iv) such other
matters as such Issuing Lender may require. No Issuing Lender shall have any
obligation to amend any Letter of Credit if: (A) such Issuing Lender would have
no obligation at such time to issue such Letter of Credit in its amended form
under the terms of this Agreement; or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit. The
Administrative Agent will promptly notify the U.S. Lenders of any Issuance or
amendment of a Letter of Credit.
(d) The Issuing Lenders and the U.S. Lenders agree that, while a Letter
of Credit is outstanding and prior to the Termination Date, at the option of the
Company and upon the written request of the Company received by the applicable
Issuing Lender (with a copy sent by the Company to the Administrative Agent) at
least one Business Day (or such shorter time as the applicable Issuing Lender
and the Administrative Agent may agree in a particular instance in their sole
discretion) prior to the proposed date of notification of renewal, the
applicable Issuing Lender shall be entitled to authorize the automatic renewal
of any Letter of Credit issued by it. Each such request for renewal of a Letter
of Credit shall be made by facsimile, confirmed immediately in an original
writing, in the form of an L/C Amendment Application, and shall specify in form
and detail satisfactory to the applicable Issuing Lender: (i) the Letter of
Credit to be renewed; (ii) the proposed date of notification of renewal of such
Letter of Credit (which shall be a Business Day); (iii) the revised expiry date
of such Letter of Credit (which, unless all
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Lenders otherwise consent in writing, shall be prior to the Termination Date);
and (iv) such other matters as such Issuing Lender may require. No Issuing
Lender shall be under any obligation to renew any Letter of Credit if: (A) such
Issuing Lender would have no obligation at such time to issue or amend such
Letter of Credit in its renewed form under the terms of this Agreement; or (B)
the beneficiary of such Letter of Credit does not accept the proposed renewal of
such Letter of Credit. If any outstanding Letter of Credit shall provide that it
shall be automatically renewed unless the beneficiary thereof receives notice
from the applicable Issuing Lender that such Letter of Credit shall not be
renewed, and if at the time of renewal such Issuing Lender would be entitled to
authorize the automatic renewal of such Letter of Credit in accordance with this
subsection 3.2(d) upon the request of the Company but such Issuing Lender shall
not have received any L/C Amendment Application from the Company with respect to
such renewal or other written direction by the Company with respect thereto,
such Issuing Lender shall nonetheless be permitted to allow such Letter of
Credit to renew, and the Company and the U.S. Lenders hereby authorize such
renewal, and, accordingly, such Issuing Lender shall be deemed to have received
an L/C Amendment Application from the Company requesting such renewal.
(e) Each Issuing Lender may, at its election (or as required by the
Administrative Agent at the direction of the Required U.S. Lenders), deliver any
notice of termination or other communication to any Letter of Credit beneficiary
or transferee, and take any other action as necessary or appropriate, at any
time and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Termination Date.
(f) This Agreement shall control in the event of any conflict with any
L/C-Related Document (other than any Letter of Credit).
(g) Each Issuing Lender will deliver to the Administrative Agent and
the Company, concurrently or promptly following its delivery of a Letter of
Credit, or amendment to or renewal of a Letter of Credit, to an advising bank or
a beneficiary, a true and complete copy of such Letter of Credit or of such
amendment or renewal.
3.3 Risk Participations, Drawings and Reimbursements.
(a) Immediately upon the Issuance of each Letter of Credit on or after
the Effective Date, each U.S. Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the applicable Issuing Lender a
participation in such Letter of Credit and each drawing thereunder in an amount
equal to the product of (i) such U.S. Lender's U.S. Pro Rata Share times (ii)
the maximum amount available to be drawn under such Letter of Credit and the
amount of such drawing, respectively. For purposes of Section 2.1, each Issuance
of a Letter of Credit shall be deemed to utilize the U.S. Commitment of each
U.S. Lender by an amount equal to the amount of such participation.
(b) In the event of any request for a drawing under a Letter of Credit
by the beneficiary or transferee thereof, the applicable Issuing Lender will
promptly notify the Company and the Administrative Agent. The Company shall
(subject, if applicable, to its right to obtain U.S. Base Rate Loans as provided
below) reimburse the applicable Issuing Lender prior to 11:00 a.m. Charlotte
time on each date that any amount is paid by such Issuing Lender under
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any Letter of Credit (each such date, an "Honor Date") in an amount equal to the
amount so paid by such Issuing Lender; provided that, to the extent that any
Issuing Lender accepts a drawing under a Letter of Credit after 11:00 a.m.
Charlotte time, the Company will not be obligated to reimburse such Issuing
Lender until the next Business Day and the "Honor Date" for such Letter of
Credit shall be such next Business Day. If the Company fails to reimburse an
Issuing Lender for the full amount of any drawing under any Letter of Credit by
11:00 a.m. Charlotte time on the Honor Date, such Issuing Lender will promptly
notify the Administrative Agent and the Administrative Agent will promptly
notify each U.S. Lender thereof (no later than 12:00 noon Charlotte time on such
Honor Date), and the Company shall be deemed to have requested that U.S. Base
Rate Loans be made by the U.S. Lenders to be disbursed on the Honor Date under
such Letter of Credit, subject to the amount of the unutilized portion of the
combined Commitments and subject to the conditions set forth in Section 5.2
other than Section 5.2(a). Any notice given by an Issuing Lender or the
Administrative Agent pursuant to this subsection 3.3(b) may be oral if
immediately confirmed in writing (including by facsimile); provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.
(c) Each U.S. Lender shall upon any notice pursuant to subsection
3.3(b) make available to the Administrative Agent for the account of the
applicable Issuing Lender an amount in Dollars and in immediately available
funds equal to its Pro Rata Share of the amount of the drawing, whereupon the
U.S. Lenders shall (subject to subsection 3.3(d)) each be deemed to have made a
Loan consisting of a U.S. Base Rate Loan to the Company in such amount. If any
U.S. Lender so notified fails to make available to the Administrative Agent for
the account of the applicable Issuing Lender the amount of such U.S. Lender's
U.S. Pro Rata Share of the amount of such drawing by no later than 2:00 p.m.
Charlotte time on the Honor Date, then interest shall accrue on such U.S.
Lender's obligation to make such payment, from the Honor Date to the date such
U.S. Lender makes such payment, at a rate per annum equal to the Federal Funds
Rate in effect from time to time during such period. The Administrative Agent
will promptly give notice of the occurrence of the Honor Date, but failure of
the Administrative Agent to give any such notice on the Honor Date or in
sufficient time to enable any U.S. Lender to effect such payment on such date
shall not relieve such U.S. Lender from its obligations under this Section 3.3.
(d) With respect to any unreimbursed drawing that is not converted into
U.S. Base Rate Loans in whole or in part, because of the Company's failure to
satisfy the conditions set forth in Section 5.2 (other than subsection 5.2(a)
which need not be satisfied) or for any other reason, the Company shall be
deemed to have incurred from the applicable Issuing Lender an L/C Borrowing in
the amount of such drawing, which L/C Borrowing shall be due and payable on
demand and shall bear interest (payable on demand) at a rate per annum equal to
the U.S. Base Rate plus 2%, and each U.S. Lender's payment to such Issuing
Lender pursuant to subsection 3.3(c) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such U.S. Lender in satisfaction of its participation obligation under this
Section 3.3.
(e) Each U.S. Lender's obligation in accordance with this Agreement to
make the Loans or L/C Advances, as contemplated by this Section 3.3, as a result
of a drawing under a
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Letter of Credit, shall be absolute and unconditional and without recourse to
any Issuing Lender and shall not be affected by any circumstance, including (i)
any set-off, counterclaim, recoupment, defense or other right which such U.S.
Lender may have against the applicable Issuing Lender, the Company or any other
Person for any reason whatsoever; (ii) the occurrence or continuance of an Event
of Default, an Unmatured Event of Default or a Material Adverse Effect; or (iii)
any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing; provided that each U.S. Lender's obligation to make Loans
under this Section 3.3 is subject to the conditions set forth in Section 5.2
(other than subsection 5.2(a)).
3.4 Repayment of Participations. (a) Upon (and only upon) receipt by
the Administrative Agent for the account of an Issuing Lender of immediately
available funds from the Company (i) in reimbursement of any payment made by
such Issuing Lender under a Letter of Credit with respect to which any Lender
has paid the Administrative Agent for the account of such Issuing Lender for
such U.S. Lender's participation in such Letter of Credit pursuant to Section
3.3 or (ii) in payment of interest thereon, the Administrative Agent will pay to
each U.S. Lender, in the same funds as those received by the Administrative
Agent for the account of such Issuing Lender, the amount of such U.S. Lender's
U.S. Pro Rata Share of such funds, and such Issuing Lender shall receive the
amount of the U.S. Pro Rata Share of such funds of any U.S. Lender that did not
so pay the Administrative Agent for the account of such Issuing Lender.
(b) If the Administrative Agent or an Issuing Lender is required at any
time to return to the Company, or to a trustee, receiver, liquidator or
custodian, or to any official in any Insolvency Proceeding, any portion of any
payment made by the Company to the Administrative Agent for the account of an
Issuing Lender pursuant to subsection 3.4(a) in reimbursement of a payment made
under a Letter of Credit or interest or fee thereon, each U.S. Lender shall, on
demand of the Administrative Agent, forthwith return to the Administrative Agent
or the applicable Issuing Lender the amount of its U.S. Pro Rata Share of any
amount so returned by the Administrative Agent or such Issuing Lender plus
interest thereon from the date such demand is made to the date such amount is
returned by such U.S. Lender to the Administrative Agent or such Issuing Lender,
at a rate per annum equal to the Federal Funds Rate in effect from time to time.
3.5 Role of the Issuing Lenders. (a) Each U.S. Lender and the Company
agree that, in paying any drawing under a Letter of Credit, the applicable
Issuing Lender shall not have any responsibility to obtain any document (other
than any sight draft and certificate expressly required by such Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.
(b) No Issuing Lender or Agent-Related Person, nor any of their
respective correspondents, participants or assignees, shall be liable to any
U.S. Lender for: (i) any action taken or omitted in connection herewith at the
request or with the approval of the U.S. Lenders (including the Required U.S.
Lenders, as applicable); (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any L/C-Related Document.
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(c) The Company hereby assumes all risks of the acts or omissions of
any beneficiary or transferee with respect to its use of any Letter of Credit;
provided that this assumption is not intended to, and shall not, preclude the
Company's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. No Issuing Lender
or Agent-Related Person, nor any of their respective correspondents,
participants or assignees, shall be liable or responsible for any of the matters
described in clauses (i) through (vii) of Section 3.6; provided that, anything
in such clauses to the contrary notwithstanding, the Company may have a claim
against an Issuing Lender, and such Issuing Lender may be liable to the Company,
to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Company which the Company
proves were caused by such Issuing Lender's willful misconduct or gross
negligence or such Issuing Lender's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of such Letter
of Credit. In furtherance and not in limitation of the foregoing: (i) an Issuing
Lender may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary; and (ii) no Issuing Lender shall be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.6 Obligations Absolute. The obligations of the Company under this
Agreement and any L/C-Related Document to reimburse the applicable Issuing
Lender for a drawing under a Letter of Credit, and to repay any L/C Borrowing
and any drawing under a Letter of Credit converted into Loans, shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement and each such other L/C-Related Document under all
circumstances, including the following:
(i) any lack of validity or enforceability of this Agreement
or any L/C-Related Document;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Company in
respect of any Letter of Credit or any other amendment or waiver of or
any consent to departure from all or any of the L/C-Related Documents;
(iii) the existence of any claim, set-off, defense or other
right that the Company may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the applicable
Issuing Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by any L/C-Related
Document or any unrelated transaction;
(iv) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in
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the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit;
(v) any payment by an Issuing Lender under any Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by an Issuing Lender under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
any Letter of Credit, including any arising in connection with any
Insolvency Proceeding;
(vi) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guarantee, for all or any of the obligations
of the Company in respect of any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or
a discharge of, the Company or a guarantor.
3.7 Cash Collateral Pledge. If any Letter of Credit remains outstanding
and partially or wholly undrawn as of the Termination Date, then the Company
shall immediately Cash Collateralize the L/C Obligations in an amount equal to
the maximum amount then available to be drawn under all Letters of Credit.
3.8 Letter of Credit Fees. (a) The Company shall pay to the
Administrative Agent for the account of each U.S. Lender a letter of credit fee
with respect to each Letter of Credit equal to the L/C Fee Rate per annum of the
average daily maximum amount available to be drawn on such Letter of Credit,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter and on the Termination Date (or such later date on which such
Letter of Credit shall expire or be fully drawn).
(b) The letter of credit fees payable under subsection 3.8(a) shall be
due and payable quarterly in arrears on the last Business Day of each calendar
quarter during which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Closing Date, through the Termination
Date (or such later date upon which all outstanding Letters of Credit shall
expire or be fully drawn), with the final payment to be made on the Termination
Date (or such later date).
(c) The Company shall pay to each Issuing Lender a letter of credit
fronting fee at such times and in such amounts as are mutually agreed to from
time to time by the Company and such Issuing Lender.
(d) The Company shall pay to each Issuing Lender from time to time on
demand the normal issuance, presentation, amendment and other processing fees,
and other standard costs and charges, of such Issuing Lender relating to letters
of credit as from time to time in effect.
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3.9 Uniform Customs and Practice. The Uniform Customs and Practice for
Documentary Credits as published by the International Chamber of Commerce
("UCP") most recently at the time of issuance of any Letter of Credit shall
(unless otherwise expressly provided in such Letter of Credit) apply to such
Letter of Credit.
ARTICLE IV
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 Taxes. (a) Any and all payments by each Borrower to each Lender or
each Agent under this Agreement and any other Loan Document shall be made free
and clear of, and without deduction or withholding for, any Taxes. In addition,
the Borrowers shall pay all Other Taxes and Further Taxes.
(b) If either Borrower shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Lender or Agent, then:
(i) the sum payable shall be increased as necessary so that,
after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under
this Section), such Lender or Agent, as the case may be, receives and
retains an amount equal to the sum it would have received and retained
had no such deductions or withholdings been made;
(ii) such Borrower shall make such deductions and
withholdings; and
(iii) such Borrower shall pay the full amount deducted or
withheld to the relevant taxing authority or other authority in
accordance with Applicable Law.
(c) The Company agrees to indemnify and hold harmless each Lender and
Agent for the full amount of Taxes, Other Taxes and Further Taxes in the amount
that such Lender specifies as necessary to preserve the after-tax yield such
Lender would have received if such Taxes, Other Taxes or Further Taxes had not
been imposed, and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within 30 days after the date such
Lender or Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by a Borrower of any
Taxes, Other Taxes or Further Taxes, such Borrower shall furnish each applicable
Lender and Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment satisfactory to such Lender and
Agent.
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If a Borrower is required to pay any amount to any Lender or Agent
pursuant to subsection (b) or (c) of this Section, then such Lender shall use
reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office so as to eliminate any such additional
payment by such Borrower which may thereafter accrue, if such change in the sole
judgment of such Lender is not otherwise disadvantageous to such Lender.
(e) Notwithstanding the foregoing provisions of this Section 4.1, if
any Lender fails to notify the Company or the applicable Borrower of any event
or circumstance which will entitle such Lender to compensation pursuant to this
Section 4.1 within 120 days after such Lender obtains knowledge of such event or
circumstance, then such Lender shall not be entitled to compensation from such
Borrower for any amount arising prior to the date which is 120 days before the
date on which such Lender notifies the Company or such Borrower of such event or
circumstance.
4.2 Illegality. (a) If any Lender determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for such Lender or its applicable Lending Office to make
Fixed Rate Loans, then, on notice thereof by such Lender to the Company through
the Administrative Agent, any obligation of such Lender to make Fixed Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Company that the circumstances giving rise to such determination no longer
exist.
(b) If a Lender determines that it is unlawful to maintain any Fixed
Rate Loan, the applicable Borrower shall, upon its receipt of notice of such
fact and demand from such Lender (with a copy to the Administrative Agent),
prepay in full such Fixed Rate Loan of such Lender the outstanding, together
with interest accrued thereon and amounts required under Section 4.4, either on
the last day of the Interest Period thereof, if such Lender may lawfully
continue to maintain such Fixed Rate Loan to such day, or immediately, if such
Lender may not lawfully continue to maintain such Fixed Rate Loan. If such
Borrower is required to so prepay any Fixed Rate Loan, then concurrently with
such prepayment, such Borrower shall borrow from the affected Lender, in the
amount of such repayment, a U.S. Base Rate Loan or Canadian Prime Rate Loan, as
applicable.
(c) If the obligation of any Lender to make or maintain Fixed Rate
Loans has been so terminated or suspended, all Loans which would otherwise be
made by such Lender as Fixed Rate Loans shall be instead U.S. Base Rate Loans or
Canadian Prime Rate Loans.
(d) Before giving any notice to the Administrative Agent under this
Section, the affected Lender shall designate a different Lending Office with
respect to its Fixed Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of such
Lender, be illegal or otherwise disadvantageous to such Lender.
4.3 Increased Costs and Reduction of Return. (a) If any Lender
determines that, due to either (i) the introduction of or any change (other than
any change by way of imposition of or
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increase in reserve requirements included in the calculation of the Offshore
Rate) in or in the interpretation of any law or regulation or (ii) compliance by
such Lender with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to such Lender of agreeing to make or making, funding
or maintaining any Fixed Rate Loan or participating in any Letter of Credit, or,
in the case of an Issuing Lender, any increase in the cost to such Issuing
Lender of agreeing to issue, issuing or maintaining any Letter of Credit or of
agreeing to make or making, funding or maintaining any unpaid drawing under any
Letter of Credit, then the applicable Borrower shall be liable for, and shall
from time to time, upon demand (with a copy of such demand to be sent to the
applicable Agent), pay to the applicable Agent for the account of such Lender,
additional amounts as are sufficient to compensate such Lender for such
increased cost.
(b) If any Lender shall have determined that (i) the introduction of
any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental Authority
charged with the interpretation or administration thereof, or (iv) compliance by
such Lender (or its Lending Office) or any corporation controlling such Lender
with any Capital Adequacy Regulation affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy and such Lender's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, Loans or obligations under this
Agreement, then, upon demand of such Lender to the applicable Borrower through
the applicable Agent, the applicable Borrower shall pay to such Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender for such increase.
(c) Notwithstanding the foregoing provisions of this Section 4.3, if
any Lender fails to notify the applicable Borrower of any event or circumstance
which will entitle such Lender to compensation pursuant to this Section 4.3
within 60 days after such Lender obtains knowledge of such event or
circumstance, then such Lender shall not be entitled to compensation from the
applicable Borrower for any amount arising prior to the date which is 60 days
before the date on which such Lender notifies the applicable Borrower of such
event or circumstance.
4.4 Funding Losses. The applicable Borrower shall reimburse each Lender
and hold each Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of:
(a) the failure of the applicable Borrower to make on a timely basis
any payment of principal of any Fixed Rate Loan;
(b) the failure of the applicable Borrower to borrow, continue or
convert a Loan or to issue a Canadian Bankers' Acceptance or a Canadian BA
Equivalent Note after the applicable Borrower has given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/Continuation for such
Loan or a Notice of Canadian BA Borrowing;
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(c) the failure of the applicable Borrower to make any prepayment in
accordance with any notice delivered under Section 2.9; or
(d) the prepayment (including after acceleration thereof) of a Fixed
Rate Loan on a day that is not the last day of the relevant Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Fixed Rate Loans or from fees payable to
terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the U.S. Lenders under this
Section and under subsection 4.3(a), each Offshore Rate Loan made by a Lender
(and each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the LIBOR rate used in determining
the Offshore Rate for such Offshore Rate Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Offshore Rate Loan is in fact so funded.
4.5 Inability to Determine Rates. If (i) the Administrative Agent
determines that for any reason adequate and reasonable means do not exist for
determining the Offshore Rate for any requested Interest Period with respect to
a proposed Offshore Rate Loan, or (ii) the Required U.S. Lenders determine that
the Offshore Rate applicable pursuant to Section 2.11 for any requested Interest
Period with respect to a proposed Offshore Rate Loan does not adequately and
fairly reflect the cost to such U.S. Lenders of funding such U.S. Loan, the
Administrative Agent will promptly so notify the Company and each U.S. Lender.
Thereafter, the obligation of the U.S. Lenders to make or maintain Offshore Rate
Loans hereunder shall be suspended until the Administrative Agent (upon the
instruction of the Required U.S. Lenders in the case of clause (ii)) revokes
such notice in writing. Upon receipt of such notice, the Company may revoke any
Notice of Borrowing or Notice of Conversion/Continuation then submitted by it.
If the Company does not revoke such Notice, the U.S. Lenders shall make, convert
or continue the U.S. Loans, as proposed by the Company, in the amount specified
in the applicable notice submitted by the Company, but such U.S. Loans shall be
made, converted or continued as U.S. Base Rate Loans instead of Offshore Rate
Loans.
4.6 Certificates of Lenders. Any Lender claiming reimbursement or
compensation under this Article IV shall deliver to the applicable Borrower
(with a copy to the Administrative Agent) a certificate setting forth in
reasonable detail the amount payable to such Lender hereunder and the manner in
which such amount has been calculated, and such certificate shall be conclusive
and binding on the applicable Borrower in the absence of manifest error.
4.7 Substitution of Lenders. Upon the receipt by either Borrower from
any Lender of a claim for compensation under Section 4.1 or 4.3 or a notice of
the type described in Section 4.2, the Company may: (i) designate a replacement
bank or financial institution satisfactory to the Company (a "Replacement
Lender") to acquire and assume all of such affected Lender's Loans and
Commitment; and/or (ii) request one or more of the other Lenders to acquire and
assume all of such affected Lender's Loans and Commitment. Any designation of a
Replacement Lender under clause (i) shall be subject to the prior written
consent of the
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Administrative Agent and, if applicable, the Canadian Agent (which consents
shall not be unreasonably withheld or delayed).
4.8 Canadian Lenders. Each Canadian Lender agrees that it shall, no
later than the Effective Date (or, in the case of a Canadian Lender which
becomes a party hereto after the Effective Date, the date upon which such
Canadian Lender becomes a party hereto) deliver to the Canadian Agent and to the
Canadian Borrower through the Canadian Agent an instrument in writing certifying
that such Canadian Lender is not a non-resident of Canada for the purposes of
Part XIII of the Income Tax Act (Canada) and that it is the sole beneficial
owner of payments of principal of and interest on its Canadian Loans and other
extensions of credit to the Canadian Borrower and undertaking to advise the
Canadian Agent and the Canadian Borrower of any changes in respect of such
matters so certified. In addition, each Canadian Lender shall, promptly upon the
Canadian Agent's or the Canadian Borrower's reasonable request to that effect,
deliver to the Canadian Agent or the Canadian Borrower (as the case may be) such
other instruments in writing, forms or similar documentation as may be required
from time to time by any applicable law, treaty, rule or regulation or the
official interpretation of any such law, treaty, rule, or regulation by any
Governmental Authority charged with the interpretation or administration thereof
(whether or not having the force of law) in order to establish such Canadian
Lender's tax status for withholding purposes. If the Canadian Agent or either
Borrower receives a request from the Canada Customs and Revenue Agency or any
other Governmental Authority to provide additional information concerning the
withholding tax status of any Canadian Lender, such Canadian Lender shall (upon
notice of such request from the Canadian Agent) use all reasonable efforts to
obtain and deliver such information to such taxing Governmental Authority, the
Canadian Agent and the Borrowers. Notwithstanding the foregoing, no Canadian
Lender shall be required to deliver any form pursuant to this Section 4.8 if
such Canadian Lender is not legally permitted to deliver such form as a result
of a change in any Applicable Law or the official interpretation thereof after
the date such Canadian Lender becomes a party to this Agreement.
4.9 Survival. The agreements and obligations of the Borrowers in this
Article IV shall survive the termination of this Agreement and the payment of
all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. The amendment and restatement of the
Original Credit Agreement by this Agreement shall become effective (and all
Loans and Letters of Credit outstanding under the Original Credit Agreement
shall be deemed to be outstanding hereunder) on the date (the "Effective Date")
occurring on or prior to June 30, 2000 on which the Administrative Agent shall
have received all of the following, in form and substance satisfactory to the
Administrative Agent and each Lender, and (except for the Notes) in sufficient
copies for each Lender:
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(a) Agreement and Notes. This Agreement and the Notes executed by each
party hereto and thereto.
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of
each Borrower authorizing the execution and delivery of the Loan
Documents to which such Person is a party and the consummation of the
transactions contemplated hereby, certified as of the Effective Date by
the Secretary or an Assistant Secretary of such Person; and
(ii) a certificate of the Secretary or Assistant Secretary of
each Borrower certifying the names and true signatures of the officers
of such Borrower authorized to execute and deliver the Loan Documents,
Notices of Borrowing, Notices of Conversion/Continuation, Compliance
Certificates, L/C Applications, L/C Amendment Applications and other
documents in connection herewith.
(c) Organization Documents. The articles or certificate of
incorporation and the bylaws of each Borrower i as in effect on the Effective
Date, certified by the Secretary or Assistant Secretary of such Borrower as of
the Effective Date.
(d) Legal Opinions. An opinion of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx,
L.L.P., U.S. counsel to the Borrowers, and an opinion of Fraser Xxxxxx, Canadian
counsel to the Canadian Borrower, each in form and substance satisfactory to the
Agents and the Lenders; and
(e) Payment of Fees. Evidence of payment by the Company and the
Canadian Borrower of all accrued and unpaid fees, costs and expenses to the
extent then due and payable hereunder on the Effective Date, together with
Attorney Costs of Bank of America to the extent invoiced prior to or on the
Effective Date.
(f) Certificate. A certificate signed by a Responsible Officer, dated
as of the Effective Date, stating that:
(i) the representations and warranties contained in Article VI
are true and correct on and as of such date, as though made on and as
of such date;
(ii) no Event of Default or Unmatured Event of Default exists
or would result from the effectiveness of this Agreement; and
(iii) since December 25, 1999, no event or circumstance has
occurred that has resulted or could reasonably be expected to result in
a Material Adverse Effect.
(g) Other Documents. Such other approvals, opinions, documents or
materials as the Administrative Agent or any Lender may reasonably request.
5.2 Conditions to All Credit Extensions. The obligation of each Lender
to make any Credit Extension to be made by it and the obligation of any Issuing
Lender to Issue any Letter of
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Credit is subject to the satisfaction of the following conditions precedent on
the relevant Borrowing Date or Issuance Date:
(a) Notice, Application. The applicable Agent shall have received a
Notice of Borrowing or Notice of BA Borrowing as required under Section 2.4, 2.6
or 2.7 or in the case of the Issuance of any Letter of Credit, the applicable
Issuing Lender and the Administrative Agent shall have received an L/C
Application or L/C Amendment Application, as required under Section 3.2.
(b) Continuation of Representations and Warranties. The representations
and warranties in Article VI shall be true and correct in all material respects
on and of such Borrowing Date or Issuance Date with the same effect as if made
on and as of such Borrowing Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date).
(c) No Existing Default. No Event of Default or Unmatured Event of
Default shall exist or shall result from such Credit Extension.
Each Notice of Borrowing, Notice of Canadian BA Borrowing, notice of acceptance
of an L/C Application and L/C Amendment Application submitted by a Borrower
hereunder shall constitute a representation and warranty by such Borrower that,
as of the date of each such notice and as of the relevant Borrowing Date or
Issuance Date, as applicable, the conditions in this Section 5.2 are satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each Agent and each Lender (and
the Canadian Borrower represents and warrants with respect to itself to each
Agent and each Lender) that:
6.1 Corporate Existence and Power. The Company and each of its
Subsidiaries:
(a) is a corporation duly organized and validly existing and, if
applicable in the jurisdiction of its incorporation, in good standing under the
laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals (i) to own its assets and to carry on its
business and (ii) to execute, deliver and perform its obligations under the Loan
Documents to which it is a party;
(c) is duly qualified as a foreign corporation and is licensed 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
or license; and
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(d) is in compliance with all Requirements of Law;
except, in each case referred to in subclause (b)(i), clause (c) or clause (d),
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect.
6.2 Corporate Authorization; No Contravention. The execution, delivery
and performance by the Company and the Canadian Borrower of each Loan Document
to which either is party have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any of such Person's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any material Contractual
Obligation to which the Company or any of its Subsidiaries is a party or any
order, injunction, writ or decree of any Governmental Authority to which the
Company or any of its Subsidiaries or any of its or their property is subject;
or
(c) violate any Requirement of Law.
6.3 Governmental Authorization. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with, any Governmental
Authority is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Company or the Canadian Borrower of
the Agreement or any other Loan Document.
6.4 Binding Effect. This Agreement and each other Loan Document to
which it is party constitute the legal, valid and binding obligations of the
Company and the Canadian Borrower, enforceable against the Company and the
Canadian Borrower in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
6.5 Litigation. Except as specifically disclosed in Part I of the
Disclosure Memorandum, there are no actions, suits, proceedings, claims or
disputes pending or, to the best knowledge of the Company and the Canadian
Borrower, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, against the Company or any Subsidiary or any
of their respective properties (a) which purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby or thereby; or (b) as to which there exists a reasonable likelihood of an
adverse determination, which determination would reasonably be expected to have
a Material Adverse Effect. No injunction, writ, temporary restraining order or
other order of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery or
performance of this Agreement or any other Loan Document, or directing that the
transactions provided for herein or therein not be consummated as herein or
therein provided.
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6.6 No Default. No Event of Default or Unmatured Event of Default
exists or would result from the incurring of any Obligations by the Company or
the Canadian Borrower. As of the Effective Date, neither the Company nor any
Subsidiary is in default under or with respect to any Contractual Obligation in
any respect which, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect.
6.7 ERISA Compliance; Canadian Plans. Except as specifically disclosed
in Schedule 6.7:
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law. Each
Plan which is intended to qualify under Section 401(a) of the Code has received
a favorable determination letter from the IRS and to the best knowledge of the
Company, nothing has occurred which would cause the loss of such qualification.
The Company and each ERISA Affiliate has made all required contributions to any
Plan subject to Section 412 of the Code, and no application for a funding waiver
or an extension of any amortization period pursuant to Section 412 of the Code
has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in a Material Adverse
Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no contribution failure has occurred with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; (iii) no
Pension Plan has any Unfunded Pension Liability; (iv) neither the Company nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (v) neither the Company nor
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
(and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (vi) neither the Company nor any ERISA
Affiliate has engaged in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
(d) All Canadian Plans are duly registered when required by, and in
good standing under, Applicable Law; all required contributions have been made
under all Canadian Plans; all Canadian Plans are funded in accordance with the
respective rules thereof and all Requirements of Law; and no past service or
experience deficiency funding liabilities exist under any Canadian Plan.
6.8 Use of Proceeds; Margin Regulations. The proceeds of the Loans will
be used solely for the purposes set forth in and permitted by Section 7.12 and
Section 8.8. Neither the
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Company nor any Subsidiary is generally engaged in the business of purchasing or
selling Margin Stock or extending credit for the purpose of purchasing or
carrying Margin Stock.
6.9 Title to Properties. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such liens, title defects and other matters affecting
title as could not, individually or in the aggregate, have a Material Adverse
Effect. As of the Effective Date, the property of the Company and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
6.10 Taxes. The Company and its Subsidiaries have filed all Federal and
other material tax returns and reports required to be filed, and have paid all
Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Company or
any Subsidiary that would, if made, have a Material Adverse Effect.
6.11 Financial Condition. (a) The audited consolidated financial
statements of the Company and its Subsidiaries dated as of December 26, 1998,
and the related consolidated statements of income or operations, stockholders'
equity and cash flows for the fiscal year ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the periods covered thereby, except as otherwise expressly
noted therein;
(ii) fairly present the financial condition of the Company and
its Subsidiaries as of the dates thereof and the results of operations
for the periods covered thereby; and
(iii) except as specifically disclosed in Part II of the
Disclosure Memorandum, show all material indebtedness and other
liabilities, absolute or contingent, of the Company and its
consolidated Subsidiaries as of the dates thereof, including
liabilities for all material taxes and material Contingent Obligations.
(b) Since December 26, 1998, there has been no Material Adverse Effect.
6.12 Environmental Matters. Except as specifically disclosed in Part
III of the Disclosure Memorandum, the Company and its Subsidiaries are in
material compliance with all applicable Environmental Laws and are not subject
to Environmental Claims except for such non-compliance and Environmental Claims
that could not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
6.13 Regulated Entities. None of the Company, any Person controlling
the Company, or any Subsidiary is an "Investment Company" within the meaning of
the Investment Company Act of 1940. Neither the Company nor the Canadian
Borrower is subject to regulation under the
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Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other
Applicable Law limiting the ability to incur Indebtedness.
6.14 No Burdensome Restrictions. Neither the Company nor any Subsidiary
is a party to or bound by any Contractual Obligation, or subject to any
restriction in any Organization Document or any Requirement of Law, which could
reasonably be expected to have a Material Adverse Effect.
6.15 Copyrights, Patents, Trademarks and Licenses, etc. The Company or
its Subsidiaries own or are licensed or otherwise have the right to use all of
the material patents, trademarks, service marks, trade names, copyrights,
contractual franchises, authorizations and other rights that are reasonably
necessary for the operation of their respective businesses, without conflict
with the rights of any other Person. To the best knowledge of the Company, no
slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by the Company
or any Subsidiary, and which is material to the business or operations of the
Company and its Subsidiaries, infringes upon any rights held by any other
Person.
6.16 Subsidiaries. As of the Effective Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
6.16 and has no equity investments in any other corporation or entity other than
those specifically disclosed in part (b) of Schedule 6.16. The Canadian Borrower
is an indirect Wholly-Owned Subsidiary of the Company.
6.17 Insurance. The properties of the Company and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of the Company, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary operates.
6.18 Swap Obligations. Neither the Company nor any of its Subsidiaries
has incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations.
6.19 Full Disclosure. The representations and warranties made by the
Company, the Canadian Borrower and their Subsidiaries in the Loan Documents as
of the date such representations and warranties are made or deemed made, and the
statements contained in any exhibit, report, statement or certificate furnished
by or on behalf of the Company, the Canadian Borrower or any Subsidiary in
connection with the Loan Documents, taken as a whole, do not contain any untrue
statement of a material fact or omit any material fact required to be stated
therein or necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading as of the time when made
or delivered.
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ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
7.1 Financial Statements. The Company shall deliver to the
Administrative Agent in form and detail satisfactory to the Administrative Agent
and the Required Lenders, with sufficient copies for each Lender and the
Canadian Agent.
(a) as soon as available, but not later than 100 days after the end of
each fiscal year, a copy of the audited consolidated balance sheet of the
Company and its Subsidiaries as at the end of such year and the related
consolidated statements of income or operations, stockholders' equity and cash
flows for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of KPMG LLP or
another nationally-recognized independent public accounting firm ("Independent
Auditor"), which opinion (i) shall state that such consolidated financial
statements present fairly the Company's consolidated financial position for the
periods indicated in conformity with GAAP and (ii) shall not be qualified or
limited because of a restricted or limited examination by the Independent
Auditor of any material portion of the Company's or any Subsidiary's records;
and
(b) as soon as available, but not later than 45 days after the end of
each of the first three fiscal quarters of each fiscal year, a copy of the
unaudited consolidated balance sheet of the Company and its Subsidiaries as of
the end of such quarter and the related consolidated statements of income,
stockholders' equity and cash flows for the period commencing on the first day
and ending on the last day of such quarter, and certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to ordinary, good
faith year-end audit adjustments), the financial position and the results of
operations of the Company and its Subsidiaries as of such date and for such
period.
7.2 Certificates; Other Information. The Company shall furnish to the
Administrative Agent, with sufficient copies for each Lender and the Canadian
Agent:
(a) concurrently with the delivery of the financial statements referred
to in subsections 7.1(a) and (b), a Compliance Certificate executed by a
Responsible Officer;
(b) promptly, copies of all financial statements and reports that the
Company sends to its shareholders, and copies of all financial statements and
regular, periodic or special reports (including Forms 10-K, 10-Q and 8-K) that
the Company or any Subsidiary may make to, or file with, the SEC; and
(c) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
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7.3 Notices. The Company shall promptly (or, in the case of any event
described in clause (c)(ii) below, not less than 10 days prior to the occurrence
of such event) notify the Administrative Agent, the Canadian Agent and each
Lender:
(a) of the occurrence of any Event of Default or Unmatured Event of
Default known to the Company;
(b) of any of the following matters that has resulted or is reasonably
expected to result in a Material Adverse Effect: (i) breach or non-performance
of, or any default under, a Contractual Obligation of the Company or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Company or any Subsidiary and any Governmental Authority;
or (iii) the commencement of, or any material development in, any litigation or
proceeding affecting the Company or any Subsidiary including pursuant to any
applicable Environmental Laws;
(c) of the occurrence of any of the following events known to the
Company which affect the Company or any ERISA Affiliate, and deliver to the
Administrative Agent, the Canadian Agent and each Lender a copy of any notice
with respect to such event that is filed with a Governmental Authority and any
notice delivered by a Governmental Authority to the Company or any ERISA
Affiliate with respect to such event:
(i) an ERISA Event;
(ii) a contribution failure with respect to a Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA;
(iii) a material increase in the Unfunded Pension Liability of
any Pension Plan;
(iv) the adoption of, or the commencement of contributions to,
any Plan subject to Section 412 of the Code by the Company or any ERISA
Affiliate; or
(v) the adoption of any amendment to a Plan subject to Section
412 of the Code, if such amendment results in a material increase in
contributions or Unfunded Pension Liability; and
(d) of any material change in accounting policies or financial
reporting practices by the Company and its consolidated Subsidiaries.
Each notice under this Section shall be accompanied by a written
statement by a Responsible Officer setting forth details of the occurrence
referred to therein, and stating what action the Company or any affected
Subsidiary proposes to take with respect thereto. Each notice under subsection
7.3(a) shall describe with particularity any and all clauses or provisions of
this Agreement or any other Loan Document that, to the best of such Responsible
Officer's Knowledge, have been breached or violated.
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7.4 Preservation of Corporate Existence, Etc. The Company shall, and
shall cause each Subsidiary to:
(a) preserve and maintain in full force and effect its corporate
existence and valid existence under the laws of its jurisdiction of
organization;
(b) preserve and maintain in full force and effect all governmental
rights, privileges, qualifications, permits, licenses and franchises necessary
in the normal conduct of its business (except (i) in connection with
transactions permitted by Section 8.4 and sales of assets permitted by Section
8.3 and (ii) to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect);
(c) use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents, trademarks, trade
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
7.5 Maintenance of Property. The Company shall, and shall cause each
Subsidiary to, maintain and preserve all its property which is used or useful in
its business in good working order and condition, ordinary wear and tear
excepted, except to the extent that failure to do so would not reasonably be
expected to have a Material Adverse Effect.
7.6 Insurance. The Company shall, and shall cause each Subsidiary to,
maintain, with financially sound and reputable independent insurers, insurance
with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.
7.7 Payment of Obligations. The Company shall, and shall cause each
Subsidiary to, pay and discharge, as the same shall become due and payable, all
their respective material obligations and liabilities, including:
(a) all material tax liabilities, assessments and governmental charges
or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary; and
(b) all material claims which, if unpaid, would by law become a Lien
upon its property unless the same are contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained
by the Company or such Subsidiary.
7.8 Compliance with Laws. The Company shall, and shall cause each
Subsidiary to, comply in all material respects with all material Requirements of
Law of any Governmental
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Authority having jurisdiction over it or its business (including the Federal
Fair Labor Standards Act), except such as may be contested in good faith or as
to which a bona fide dispute may exist.
7.9 Compliance with ERISA; Canadian Plans. The Company shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan in compliance in
all material respects with the applicable provisions of ERISA, the Code and
other federal or state law; (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Code. The Company shall
maintain, and cause the Canadian Borrower and each other Canadian Subsidiary to
maintain, each Canadian Plan in compliance in all material respects with all
Requirements of Law.
7.10 Inspection of Property and Books and Records. The Company shall,
and shall cause each Subsidiary to, maintain proper books of record and account,
in which true and correct entries (sufficient to permit the preparation of
consolidated financial statements in conformity with GAAP) shall be made of all
financial transactions and matters involving the assets and business of the
Company and such Subsidiary. The Company shall permit, and shall cause each
Subsidiary to permit, the Administrative Agent, the Canadian Agent or any
Lender, at any reasonable time during normal business hours upon advance request
of the Administrative Agent, the Canadian Agent or the relevant Lender, to visit
and inspect the properties of the Company or any Subsidiary and to examine their
respective corporate, financial and operating records, and make copies thereof
or abstracts therefrom, and to discuss the affairs, finances and accounts of the
Company or any Subsidiary with the appropriate officers of the Company or such
Subsidiary.
7.11 Environmental Laws. The Company shall, and shall cause each
Subsidiary to, conduct its operations and keep and maintain its property in
material compliance with all material Environmental Laws, except such as may be
contested in good faith or as to which a bona fide dispute may exist.
7.12 Use of Proceeds. The Company and the Canadian Borrower shall use
the proceeds of the Loans for working capital, intercompany loans and other
general corporate purposes not in contravention of any Requirement of Law or of
any Loan Document; provided that the Company and the Canadian Borrower shall not
use the proceeds of any Loan to make any Acquisition if the Board of Directors
of the Person to be acquired has not approved such Acquisition.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, unless the Required Lenders waive compliance in
writing:
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8.1 Financial Condition Covenants.
(a) Total Debt to EBITDA Ratio. The Company shall not permit the Total
Debt to EBITDA Ratio to be greater than (i) for each Computation Period ending
on or prior to the third anniversary of the Effective Date, 3.00 to 1, and (ii)
for any Computation Period ending thereafter, 2.50 to 1.
(b) Interest Coverage Ratio. The Company shall not permit, as of the
last day of any Computation Period, the Interest Coverage Ratio to be less than
(i) for each Computation Period ending on or prior to the third anniversary of
the Effective Date, 2.50 to 1, and (ii) for any Computation Period ending
thereafter, 3.00 to 1.
8.2 Limitation on Liens. The Company shall not, and shall not suffer or
permit any Subsidiary to, directly or indirectly, make, create, incur, assume or
suffer to exist any Lien upon or with respect to any part of its property,
whether now owned or hereafter acquired, other than the following ("Permitted
Liens"):
(a) any Lien existing on property of the Company or any Subsidiary on
the Effective Date and set forth in Schedule 8.2 securing Indebtedness
outstanding on such date, and any extension, renewal or replacement of any such
Lien so long as the principal amount secured thereby is not increased and the
scope of the property subject to such Lien is not extended;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 7.7, provided that no notice of
lien has been filed or recorded under the Code or any other Requirement of Law;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the ordinary course of business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges
or deposits required in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the property of the Company or any Subsidiary securing (i)
the non-delinquent performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) surety bonds (excluding appeal bonds
and other bonds posted in connection with court proceedings or judgments) and
(iii) other non-delinquent obligations of a like nature; in each case incurred
in the ordinary course of business, provided all such Liens in the aggregate
would not (even if enforced) cause a Material Adverse Effect;
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(g) Liens consisting of judgment or judicial attachment liens and liens
securing contingent obligations on appeal bonds and other bonds posted in
connection with court proceedings or judgments, provided that all such liens in
the aggregate at any time outstanding for the Company and its Subsidiaries do
not exceed U.S.$5,000,000 unless, in the case of judgment and judicial
attachment liens, the enforcement of such liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, individually or
in the aggregate, do not materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of the businesses of the
Company and its Subsidiaries;
(i) purchase money security interests on any property acquired or held
by the Company or its Subsidiaries in the ordinary course of business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such property; provided that (i) any such Lien attaches to
such property concurrently with or within 90 days after the acquisition thereof,
(ii) such Lien attaches solely to the property so acquired in such transaction,
(iii) the principal amount of the debt secured thereby does not exceed 100% of
the cost of such property, and (iv) the principal amount of the Indebtedness
secured by any and all such purchase money security interests shall not at any
time exceed U.S.$5,000,000;
(j) Liens securing obligations in respect of capital leases on assets
subject to such leases, provided that such capital leases are otherwise
permitted hereunder;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the FRB, and (ii) such deposit account is not intended by the Company or any
Subsidiary to provide collateral to the depository institution;
(l) Liens arising in connection with Securitization Transactions;
provided that the aggregate investment or claim held at any time by all
purchasers, assignees or other transferees of (or of interests in) receivables
and other rights to payment in all Securitization Transactions shall not exceed
U.S.$25,000,000; and
(m) other Liens securing Indebtedness not at any time exceeding in the
aggregate U.S.$10,000,000.
8.3 Disposition of Assets. The Company shall not, and shall not permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise dispose of (whether in one or a series of transactions) any
property (including accounts and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing, except:
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(a) dispositions of inventory, or used, worn-out or surplus equipment,
all in the ordinary course of business;
(b) the sale, assignment or other transfer of accounts receivable,
lease receivables or other rights to payment pursuant to any Securitization
Transaction; provided that the aggregate investment or claim held at any time by
all purchasers, assignees or other transferees of (or of interests in) such
receivables or other rights to payment shall not exceed U.S.$25,000,000;
(c) the sale of assets that are leased back to the Company or a
Subsidiary, involving amounts not to exceed U.S.$10,000,000 in the aggregate in
any fiscal year; and
(d) dispositions not otherwise permitted hereunder which are made for
fair market value; provided that (i) at the time of any disposition, no Event of
Default shall exist or shall result from such disposition and (ii) the aggregate
value of all assets so disposed of by the Company and its Subsidiaries in any
fiscal year shall not exceed U.S.$10,000,000.
8.4 Consolidations and Mergers. The Company shall not, and shall not
permit any Subsidiary to, merge, consolidate or amalgamate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any other Person, except:
(a) any Subsidiary may merge or amalgamate with the Company, provided
that the Company shall be the continuing or surviving corporation or, in the
case of an amalgamation, the resulting corporation shall have entered into all
assumption agreements and provided all further assurances as the Administrative
Agent may reasonably require, or with any one or more Subsidiaries, provided
that if any transaction shall be between a Subsidiary and a Wholly-Owned
Subsidiary, the Wholly-Owned Subsidiary shall be the continuing or surviving
corporation, or the continuing or surviving corporation shall be a Wholly-Owned
Subsidiary;
(b) any Subsidiary may sell all or substantially all of its assets
(upon voluntary liquidation or otherwise), to the Company or another
Wholly-Owned Subsidiary; and
(c) any merger, amalgamation, consolidation or disposition in
connection with a transaction permitted by Section 8.3 or an Acquisition
permitted by Section 8.5;
provided that, notwithstanding the foregoing, the Company shall not permit any
of South MECKCA, LLC, West MECKCA, LLC, Norbehouse, LP and HSW Mortgage Corp.
(each a "Restricted Subsidiary") to merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any other Person, except that (x)
any Restricted Subsidiary may merge with the Company, provided that the Company
shall be the continuing or surviving corporation, or with any one or more of
Restricted Subsidiaries, and (y) any Restricted Subsidiary may sell all or
substantially all of its assets (upon voluntary liquidation or otherwise), to
the Company or another Restricted Subsidiary.
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8.5 Loans and Investments. The Company shall not, and shall not permit
any Subsidiary to, purchase or acquire, or make any commitment to purchase or
acquire, any capital stock, equity interest or obligations or other securities
of, or any interest in, any Person, or make or commit to make any Acquisition,
or make or commit to make any advance, loan, extension of credit or capital
contribution to or any other investment in any Person (including any Affiliate
of the Company)(any of the foregoing an "Investment"), except for:
(a) Investments held by the Company or any Subsidiary in the form of
cash equivalents or short term marketable securities;
(b) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the ordinary
course of business;
(c) Investments by the Company in any of its Subsidiaries or by any of
its Subsidiaries to another of its Subsidiaries;
(d) other Investments (including those incurred in order to consummate
Acquisitions not otherwise prohibited herein), provided that no Event of Default
or Unmatured Event of Default exists or will result therefrom;
(e) Investments constituting Permitted Swap Obligations or payments or
advances under Swap Contracts relating to Permitted Swap Obligations;
(f) pledges or deposits required in the ordinary course of business in
connection with workmen's compensation, unemployment insurance and other social
security legislation;
(g) advances, loans or extensions of credit to suppliers in the
ordinary course of business by the Company and its Subsidiaries;
(h) advances, loans or extensions of credit in the ordinary course of
business by the Company and its Subsidiaries to employees of the Company and its
Subsidiaries;
(i) repurchases by the Company of its common stock to the extent
permitted by Section 8.10; and
(j) loans to an employee stock ownership plan established by the
Company, the proceeds of which are used solely to purchase stock of the Company.
8.6 Limitation on Subsidiary Indebtedness. The Company shall not permit
its Subsidiaries to create, incur, assume or suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any Indebtedness
(other than Indebtedness owing to the Company or another Subsidiary) (but
including any deferred promissory notes (the "Deferred Notes") issued by a
Subsidiary pursuant to the Company's Agreement of Purchase and Sale with the
shareholders of Tamming Foods Ltd. in the original amount of C$21,000,000) at
any time
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outstanding in an aggregate amount not to exceed the excess of (i)
U.S.$65,000,000 over (ii) to the extent not constituting Indebtedness,
obligations of its Subsidiaries in respect of Securitization Transactions to the
extent of the aggregate investment or claim held at any time by purchasers,
assignees or other transferees of (or of interests in) receivables and other
rights to payment in Securitization Transactions, provided that the Company
shall not permit HSW Mortgage Corp., Norbehouse, LP, South MECKCA, LLC and West
MECKCA, LLC to create, incur, assume or suffer to exist, or otherwise become or
remain directly or indirectly liable with respect to, any Indebtedness.
8.7 Transactions with Affiliates. The Company shall not, and shall not
permit any Subsidiary to, enter into any transaction with any Affiliate of the
Company (other than the Company or a Subsidiary), except upon fair and
reasonable terms no less favorable to the Company or such Subsidiary than would
obtain in a comparable arm's-length transaction with a Person not an Affiliate
of the Company or such Subsidiary.
8.8 Use of Proceeds. The Company shall not, and shall not suffer or
permit any Subsidiary to, use any portion of the Loan proceeds or any Letter of
Credit, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to
repay or otherwise refinance indebtedness of the Company or others incurred to
purchase or carry Margin Stock or (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock.
8.9 Swap Contracts. The Company shall not, and shall not permit any
Subsidiary to, create, incur, assume or suffer to exist any obligations under
Swap Contracts except for Permitted Swap Obligations.
8.10 Restricted Payments. The Company shall not (i) declare or make any
dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its capital
stock or (ii) purchase, redeem or otherwise acquire for value, or permit any
Subsidiary to purchase or otherwise acquire for value, any shares of the
Company's capital stock or any warrants, rights or options to acquire such
shares, now or hereafter outstanding, except that:
(a) the Company may declare and make dividend payments or other
distributions payable solely in its common stock;
(b) the Company may purchase, redeem or otherwise acquire shares of its
common stock or warrants or options to acquire any such shares with the proceeds
received from the substantially concurrent issue of new shares of its common
stock;
(c) so long as (1) no Event of Default or Unmatured Event of Default
exists or would result therefrom and (2) the Company's consolidated
stockholders' equity, after giving effect thereto, is not less than
U.S.$125,000,000, the Company may (x) declare and pay cash dividends to its
stockholders; and (y) purchase, redeem or otherwise acquire shares of its common
stock or warrants or options to acquire such shares; and
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(d) HSW Mortgage Corp. may declare and pay cash dividends to the
holders of its 10% Series A Cumulative Preferred Stock in an aggregate amount
not exceeding U.S.$15,000 in any fiscal year.
8.11 ERISA. The Company shall not, and shall not permit any of its
ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan which has resulted or
could reasonably be expected to result in liability of the Company in an
aggregate amount in excess of U.S.$5,000,000; or (b) engage in a transaction
that could be subject to Section 4069 or 4212(c) of ERISA.
8.12 Change in Business. The Company shall not, and shall not suffer or
permit any Subsidiary to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
8.13 Accounting Changes. The Company shall not, and shall not permit
any Subsidiary to, make any significant change in accounting treatment or
reporting practices, except as required by GAAP.
8.14 HSW Mortgage Loan. The Company shall not, and shall not permit any
Subsidiary to, sell or otherwise dispose of any of its interest in South MECKCA,
LLC, West MECKCA, LLC, Norbehouse, LP or HSW Mortgage Corp. The Company shall
not permit HSW Mortgage Corp. to sell or otherwise dispose of or encumber any of
its rights under or in respect of the HSW Mortgage Loan or the related deed of
trust existing on the date hereof, except for releases of liens under the deed
of trust securing the HSW Mortgage Loan in connection with dispositions of
assets otherwise permitted under Section 8.3.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. The Company or the Canadian Borrower fails to pay, (i)
when and as required to be paid herein, any amount of principal of any Loan of
any Canadian Bankers' Acceptance or any Canadian BA Equivalent Note or of any
L/C Obligation, or (ii) within three Business Days after the same becomes due,
any interest, fee or any other amount payable hereunder or under any other Loan
Document.
(b) Representation or Warranty. Any representation or warranty by the
Company or the Canadian Borrower or any Subsidiary made or deemed made herein or
in any other Loan Document, or which is contained in any certificate, document
or financial or other statement by the Company, any Subsidiary or any
Responsible Officer furnished at any time under this Agreement or under any
other Loan Document, is incorrect in any material respect on or as of the date
made or deemed made.
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(c) Specific Defaults. The Company fails to perform or observe any
term, covenant or agreement contained in any of subsection 7.3(a), Section 8.2,
8.3, 8.4, 8.8, 8.11 or 8.13.
(d) Other Defaults. The Company or the Canadian Borrower fails to
perform or observe any other term or covenant contained in this Agreement or any
other Loan Document, and such failure shall continue unremedied for a period of
30 days after the date upon which written notice thereof is given to the Company
by the Administrative Agent, the Canadian Agent or any Lender.
(e) Cross-Default. The Company, the Canadian Borrower or any Subsidiary
(A) fails to make any payment in respect of any Material Financial Obligations
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise); or (B) fails to perform or observe any other condition or
covenant, or any other event shall occur or condition shall exist, under any
agreement or instrument relating to any such Material Financial Obligations, if
the effect of such failure, event or condition is to cause, or to permit the
holder or holders of such Material Financial Obligations or beneficiary or
beneficiaries of such Material Financial Obligations (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, such
Material Financial Obligations to become due and payable prior to its stated
maturity, or such Material Financial Obligations to become payable or cash
collateral in respect thereof to be demanded.
(f) Insolvency; Voluntary Proceedings. The Company, the Canadian
Borrower or any Subsidiary (i) ceases or fails to be solvent, or generally fails
to pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise; (ii) voluntarily ceases to conduct its business in the ordinary
course; (iii) commences any Insolvency Proceeding with respect to itself; or
(iv) takes any action to effectuate or authorize any of the foregoing.
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
is commenced or filed against the Company, the Canadian Borrower or any
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against a substantial part of the Company's, the
Canadian Borrower's or any Subsidiary's properties, and such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded,
within 60 days after commencement, filing or levy; (ii) the Company, the
Canadian Borrower or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding with
respect to the Company, the Canadian Borrower or such Subsidiary; or (iii) the
Company, the Canadian Borrower or any Subsidiary acquiesces in the appointment
of a receiver, trustee, custodian, conservator, liquidator, mortgagee in
possession (or agent therefor), or other similar Person for itself or a
substantial portion of its property or business.
(h) ERISA; Canadian Plans. (i) An ERISA Event shall occur with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or
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the PBGC in an aggregate amount in excess of U.S.$5,000,000; (ii) a contribution
failure shall occur with respect to a Pension Plan sufficient to give rise to a
Lien under Section 302(f) of ERISA; (iii) the aggregate amount of Unfunded
Pension Liability among all Pension Plans at any time exceeds U.S.$5,000,000;
(iv) the Company or any ERISA Affiliate shall fail to pay when due, after the
expiration of any applicable grace period (or any period during which (x) the
Company is permitted to contest its obligation to make such payment without
incurring any liability (other than interest) or penalty and (y) the Company is
contesting such obligation in good faith and by appropriate proceedings), any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA or any contribution obligation under Section 4243 of ERISA, in each
case under a Multiemployer Plan in an aggregate amount in excess of
U.S.$5,000,000; or (v) the Canadian Borrower or any other Person shall institute
steps to terminate a Canadian Plan if as a result of such termination, the
Company or the Canadian Borrower could be required to make a contribution to
such Canadian Plan, or could incur a liability or obligation to such Canadian
Plan, in excess of C$5,000,000.
(i) Judgments. One or more non-interlocutory judgments,
non-interlocutory orders, decrees or arbitration awards is entered against the
Company, the Canadian Borrower or any Subsidiary involving in the aggregate a
liability (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage) as to any single or related series
of transactions, incidents or conditions of U.S.$10,000,000 or more, and the
same shall remain unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof.
(j) Change of Control. Any Change of Control occurs.
9.2 Remedies. If any Event of Default occurs, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make any Credit Extension
(including any obligation of each Issuing Lender to Issue any Letter of Credit)
to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate amount that is or
at any time thereafter may become available for drawing under all outstanding
Letters of Credit (whether or not any beneficiary shall have presented, or shall
be entitled at such time to present, the drafts or other documents required to
draw under such Letters of Credit) to be immediately due and payable, and
declare the unpaid principal amount of all outstanding Loans, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Loan Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Company;
(c) demand that the Canadian Borrower immediately provide Cash
Collateral to the Canadian Agent in an amount equal to the face amount of all
outstanding Canadian Bankers' Acceptances and Canadian BA Equivalent Notes,
whereupon the Canadian Borrower shall become immediately obligated to provide
such Cash Collateral; and
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(d) exercise on behalf of itself and the Lenders all other rights and
remedies available to it and the Lenders under the Loan Documents or Applicable
Law;
provided, however, that upon the occurrence of any event specified in subsection
(f) or (g) of Section 9.1 (in the case of clause (i) of subsection (g), upon the
expiration of the 60-day period mentioned therein), the obligation of each
Lender to make Credit Extensions (including any obligation of each Issuing
Lender to Issue Letters of Credit) shall automatically terminate and the unpaid
principal amount of all outstanding Loans and all other Obligations shall
automatically become due and payable and the Canadian Borrower shall
automatically become obligated to provide Cash Collateral in the amounts set
forth in clause (c) above, in each case without further act of either Agent, the
Issuing Lender or any other Lender.
9.3 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE X
THE AGENTS
10.1 Appointment and Authorization. (a) Each Lender hereby irrevocably
(subject to Section 10.9) appoints, designates and authorizes each Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, neither Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall either
Agent have or be deemed to have any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against either Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to either Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any Applicable Law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Each Issuing Lender shall act on behalf of the U.S. Lenders with
respect to any Letters of Credit Issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required U.S. Lenders to act for such Issuing Lender
with respect thereto; provided, however, that each Issuing Lender shall have all
of the benefits and immunities (i) provided to the Administrative Agent in this
Article X with respect to any acts taken or omissions suffered by such Issuing
Lender in connection with Letters of Credit Issued by it or proposed to be
Issued by it and the application
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and agreements for letters of credit pertaining to the Letters of Credit as
fully as if the term "Agent", as used in this Article X, included such Issuing
Lender with respect to such acts or omissions, and (ii) as additionally provided
in this Agreement with respect to such Issuing Lender.
10.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither Agent shall be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
10.3 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable to any Lender for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by either Borrower or any
Subsidiary or Affiliate of either Borrower, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by
either Agent under or in connection with, this Agreement or any other Loan
Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
either Borrower or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Agent-Related Person shall be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of either Borrower or any of the Company's Subsidiaries or Affiliates.
10.4 Reliance by Agents. (a) Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to either Borrower), independent accountants and other experts selected by such
Agent. Each 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 and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance with
a request or consent of the Required Lenders and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 5.1, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by either
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Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender.
10.5 Notice of Default. Neither Agent shall be deemed to have knowledge
or notice of the occurrence of any Event of Default or Unmatured Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to such Agent for the account of the Lenders,
unless such Agent shall have received written notice from a Lender or a Borrower
referring to this Agreement, describing such Event of Default or Unmatured Event
of Default and stating that such notice is a "notice of default". If either
Agent receives such a notice, such Agent will notify the Lenders of its receipt
of such notice. Each Agent shall take such action with respect to such Event of
Default or Unmatured Event of Default as may be requested by the Required
Lenders in accordance with this Article X; provided, however, that unless and
until such Agent has received any such request, such Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Event of Default or Unmatured Event of Default as it shall deem
advisable or in the best interest of the Lenders.
10.6 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by either Agent hereafter taken, including any review of the affairs of the
Borrowers and their Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to the Agents that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and their Subsidiaries, and all applicable
bank regulatory laws relating to the transactions contemplated hereby, and made
its own decision to enter into this Agreement and to extend credit to the
Borrowers hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrowers.
Except for notices, reports and other documents expressly herein required to be
furnished to the Lenders by an Agent, neither Agent shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of either Borrower which may come into the
possession of any Agent-Related Person.
10.7 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrowers and without limiting the obligation of the Borrowers to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of the Indemnified Liabilities to the extent resulting from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender shall reimburse each
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Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by such Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that such Agent is not reimbursed for such expenses by or on
behalf of the Borrowers. The undertaking in this Section shall survive the
termination of this Agreement, the payment of all Obligations and the
resignation or replacement of either Agent.
10.8 Agent in Individual Capacity. Bank of America and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Borrowers and
their Subsidiaries and Affiliates as though Bank of America were not the
Administrative Agent or an Issuing Lender hereunder and without notice to or
consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America or its Affiliates may receive information regarding
the Borrowers or their Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that neither Agent shall be under any obligation to provide such
information to them. With respect to their respective Loans, Bank of America and
its Affiliates shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not an Agent or an
Issuing Lender.
10.9 Successor Agent. Either Agent may, and at the request of the
Required Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If
either Agent resigns under this Agreement, the Required Lenders (with, so long
as no Event of Default exists, the consent of the Company, which shall not be
unreasonably withheld or delayed) shall appoint from among the Lenders or
Affiliates of Lenders a successor Administrative Agent or Canadian Agent, as
applicable, for the Lenders. If no successor agent is appointed prior to the
effective date of the resignation of the applicable Agent, such Agent may
appoint, after consulting with the Lenders and the Company, a successor agent
from among the Lenders or Affiliates of Lenders. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Agent and the term
"Administrative Agent" or "Canadian Agent", as applicable, shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as an
Agent, the provisions of this Article X and Sections 11.4 and 11.5 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
an Agent under this Agreement. If no successor agent has accepted appointment as
the applicable Agent by the date which is 30 days following a retiring Agent's
notice of resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Lenders (or, in the case of the Canadian
Agent, the Canadian Lenders) shall perform all of the duties of such Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, Bank of
America may not be removed as the Administrative Agent at the request of the
Required Lenders unless Bank of America and any applicable Affiliate thereof
(including Bank of America Canada) shall also simultaneously be replaced as the
Canadian Agent, a "Canadian Lender" and an "Issuing Lender" hereunder pursuant
to documentation in form and substance reasonably satisfactory to Bank of
America.
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Any successor Canadian Agent shall be a Canadian Lender or an Eligible Assignee
with respect to the Canadian Commitments and Canadian Loans.
10.10 Withholding Tax. (a) If any U.S. Lender is a "foreign
corporation, partnership or trust" within the meaning of the Code and such U.S.
Lender claims exemption from, or a reduction of, U.S. withholding tax under
Sections 1441 or 1442 of the Code, such U.S. Lender agrees with and in favor of
the Administrative Agent, to deliver to the Administrative Agent:
(i) if such U.S. Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax treaty,
properly completed IRS Form W-8BEN (or any successor forms) before the
payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such U.S. Lender claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
U.S. Lender, two properly completed and executed copies of IRS Form
W-8ECI (or any successor form) before the payment of any interest is
due in the first taxable year of such U.S. Lender and in each
succeeding taxable year of such U.S. Lender during which interest may
be paid under this Agreement; and
(iii) such other form or forms as may be required under the
Code or other laws of the United States as a condition to exemption
from, or reduction of, United States withholding tax.
Each such U.S. Lender agrees to promptly notify the Administrative Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any U.S. Lender claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form W-8BEN
(or any successor form) and such U.S. Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the
Company to such U.S. Lender, such U.S. Lender agrees to notify the
Administrative Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such U.S. Lender. To the
extent of such percentage amount, the Administrative Agent will treat such U.S.
Lender's IRS Form W-8BEN (or any successor form) as no longer valid.
(c) If any U.S. Lender claiming exemption from United States
withholding tax by filing IRS Form W-8ECI (or any successor form) with the
Administrative Agent sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of the Company to such U.S. Lender,
such U.S. Lender agrees to undertake sole responsibility for complying with the
withholding tax requirements imposed by Sections 1441 and 1442 of the Code.
(d) If any U.S. Lender is entitled to a reduction in the applicable
withholding tax, the Administrative Agent may withhold from any interest payment
to such U.S. Lender an
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amount equivalent to the applicable withholding tax after taking into account
such reduction. If the forms or other documentation required by subsection (a)
of this Section are not delivered to the Administrative Agent, then the
Administrative Agent may withhold from any interest payment to such U.S. Lender
not providing such forms or other documentation an amount equivalent to the
applicable withholding tax.
(e) If the IRS or the Canada Customs and Revenue Agency or any other
Governmental Authority of the United States, Canada or any other jurisdiction
asserts a claim that an Agent did not properly withhold tax from amounts paid to
or for the account of any Lender (because the appropriate form was not delivered
or was not properly executed, or because such Lender failed to notify the
applicable Agent of a change in circumstances which rendered the exemption from,
or reduction of, withholding tax ineffective, or for any other reason) such
Lender shall indemnify such Agent fully for all amounts paid, directly or
indirectly, by such Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
such Agent under this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Lenders under this subsection shall
survive the payment of all Obligations and the resignation or replacement of
either Agent.
ARTICLE XI
GUARANTY BY THE COMPANY
11.1 Guaranty. The Company hereby absolutely, unconditionally and
irrevocably guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
each Canadian Loan of the Canadian Borrower, and the full and punctual payment
of all other amounts payable by the Canadian Borrower under this Agreement. Upon
failure by the Canadian Borrower to pay punctually any such amount, the Company
shall forthwith on demand pay the amount not so paid at the place, in the
currency and in the manner specified in this Agreement. In addition (and without
limiting the foregoing), upon any Loan to the Canadian Borrower being declared
or otherwise becoming immediately due and payable pursuant to Section 9.2, the
Company shall forthwith on demand pay all amounts payable in respect of such
Canadian Loan at the place, in the currency and in the manner specified in this
Agreement.
11.2 Guaranty Unconditional. The obligations of the Company under this
Article XI shall be absolute, unconditional and irrevocable and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Canadian Borrower under
this Agreement or any other Loan Document, by operation of law or
otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Loan Document;
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(c) any release, impairment, non-perfection or invalidity of
any other guaranty or of any direct or indirect security for any
obligation of the Canadian Borrower under this Agreement or any other
Loan Document;
(d) any change in the corporate existence, structure or
ownership of the Canadian Borrower or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Canadian
Borrower or the Canadian Borrower's assets or any resulting release or
discharge of any obligation of the Canadian Borrower contained in this
Agreement or any other Loan Document;
(e) the existence of any claim, set-off or other right which
the Company may have at any time against the Canadian Borrower, either
Agent, any Lender or any other Person, whether in connection herewith
or any unrelated transaction, provided that nothing herein shall
prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(f) any invalidity or unenforceability relating to or against
the Canadian Borrower for any reason of this Agreement or any other
Loan Document, or any provision of Applicable Law purporting to
prohibit the payment by the Canadian Borrower of the principal of or
interest on any other Loan Document or any other amount payable by the
Canadian Borrower under this Agreement; or
(g) any other act or omission to act or delay of any kind by
the Canadian Borrower, either Agent, any Lender or any other Person or
any other circumstance whatsoever which might, but for the provisions
of this paragraph, constitute a legal or equitable discharge of the
Company's obligations as guarantor hereunder.
11.3 Discharge only upon Payment in Full; Reinstatement in Certain
Circumstances. The Company's obligations as guarantor hereunder shall remain in
full force and effect until the Commitments shall have terminated and all
obligations of the Canadian Borrower under this Agreement and each other Loan
Document shall have been paid in full. If at any time any payment of principal,
interest or any other amount payable by the Canadian Borrower under this
Agreement or any other Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Canadian
Borrower or otherwise, the Company's obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
11.4 Waiver by the Company. The Company irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided otherwise for
herein, as well as any requirement that at any time any action be taken by any
Person against the Canadian Borrower or any other Person. The Company further
hereby waives the benefits of all provisions of Applicable Law permitting or
providing for discharge of the liability and obligation of the Company as
guarantor hereunder based on the action or failure to act by either Agent or any
Lender with respect to the enforcement of the obligations and liability
guaranteed hereby against the Canadian Borrower or its property. Without
limiting the foregoing, the Company hereby specifically waives the benefits of
N.C. Gen. Stat. Sections 26-7 through 26-9, inclusive.
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11.5 Subrogation. Notwithstanding any payment made by or for the
account of the Canadian Borrower pursuant to this Article XI, the Company shall
not be subrogated to any right of either Agent or any Lender until such time as
the Agents and the Lenders shall have received final payment in cash of the full
amount of all obligations of the Canadian Borrower hereunder.
11.6 Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Canadian Borrower under this Agreement or any other
Loan Document is stayed upon the insolvency, bankruptcy or reorganization of the
Canadian Borrower, all such amounts otherwise subject to acceleration under the
terms of this Agreement shall nonetheless be payable by the Company hereunder
forthwith on demand by the Administrative Agent made at the request of the
Required Lenders.
ARTICLE XII
MISCELLANEOUS
12.1 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by either Borrower or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
(or by the Administrative Agent at the written request of the Required Lenders)
and the Company and acknowledged by the Administrative Agent, and then any such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such waiver,
amendment or consent shall, unless in writing and signed by all Lenders and the
Company and acknowledged by the Administrative Agent, do any of the following:
(a) increase or extend the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 9.2);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein
on, any Loan, or reduce any fees (other than the fees referred to in subsection
2.12(a) or subsections 3.8(c) and (d)) or other amounts payable hereunder or
under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Lenders or any of them
to take any action hereunder; or
(e) amend this Section or any other provision herein expressly
providing for consent or other action by all Lenders;
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and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable Issuing Lender in addition to the Required
Lenders or all Lenders, as the case may be, affect the rights or duties of such
Issuing Lender under this Agreement or any L/C-Related Document relating to any
Letter of Credit Issued or to be Issued by it, (ii) no amendment, waiver or
consent shall, unless in writing and signed by the applicable Agent in addition
to the Required Lenders or all Lenders, as the case may be, affect the rights or
duties of either Agent under this Agreement or any other Loan Document, (iii) no
provision affecting Canadian Lenders in their capacity as such shall be amended,
modified or waived without the written consent of the Required Canadian Lenders,
and (iv) no release of the Company's guaranty contained in Article XI may be
effected without the written consent of the Canadian Agent and all Canadian
Lenders.
12.2 Notices. (a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by the Company or the Canadian Borrower by facsimile (i)
shall be immediately confirmed by a telephone call to the recipient at the
number specified on Schedule 12.2, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, faxed or delivered, to the
address or facsimile number specified for notices on Schedule 12.2; or to such
other address as shall be designated by such party in a written notice to the
other parties.
(b) All such notices, requests, consents, approvals, waivers and
communications shall, when transmitted by overnight delivery, or faxed, be
effective when delivered for overnight (next-day) delivery, or transmitted in
legible form by facsimile machine, respectively, or if mailed, upon the third
Business Day after the date deposited into the U.S. mail, or if delivered, upon
delivery; except that notices pursuant to Article II, III or X to an Agent shall
not be effective until actually received by such Agent and notices pursuant to
Article III to the applicable Issuing Lender shall not be effective until
actually received by such Issuing Lender at the address specified for such
"Issuing Lender" on Schedule 12.2.
(c) Any agreement of the Agents and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Borrowers. The Agents and the Lenders shall be entitled to
rely on the authority of any Person purporting to be a Person authorized by a
Borrower to give such notice and the Agents and the Lenders shall not have any
liability to the Borrowers or any other Person on account of any action taken or
not taken by the Agents or the Lenders in reliance upon such telephonic or
facsimile notice. The obligation of the Borrowers to repay the Loans and L/C
Obligations shall not be affected in any way or to any extent by any failure by
the Agents and the Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Agents and the Lenders of a confirmation
which is at variance with the terms understood by the Agents and the Lenders to
be contained in the telephonic or facsimile notice.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of either Agent or any Lender, any right,
remedy, power or privilege hereunder 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.
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12.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse Agents, the Issuing Lender and the Arranger within
ten Business Days after demand (subject to subsection 5.1(e)) for (i) all costs
and expenses incurred by the Agents, the Issuing Lender and the Arranger in
connection with the negotiation, development, preparation, delivery,
syndication, documentation, administration and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any other Loan Document and any other document
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including Attorney Costs incurred
by the Agents, the Issuing Lender and the Arranger with respect thereto and (ii)
the Attorney Costs of the Canadian Lenders in connection with the negotiation,
documentation and execution of this Agreement, any other Loan Document and any
other document prepared in connection herewith or therewith on or before the
Effective Date; and
(b) pay or reimburse each Agent, the Arranger and each Lender within
ten Business Days after demand for all costs and expenses (including Attorney
Costs) incurred by them in connection with the enforcement, attempted
enforcement, or preservation of any rights or remedies under this Agreement or
any other Loan Document (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency Proceeding or
appellate proceeding).
12.5 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons and each Lender and each of their respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans, the termination of the Letters of Credit and the
termination, resignation or replacement of either Agent or replacement of any
Lender) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein, or the transactions contemplated hereby, or any action
taken or omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or proceeding
(including any Insolvency Proceeding or appellate proceeding) related to or
arising out of this Agreement or the Loans or Letters of Credit or the use of
the proceeds thereof, whether or not any Indemnified Person is a party thereto
(all the foregoing, collectively, the "Indemnified Liabilities"); provided that
the Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities resulting solely from the gross negligence or
willful misconduct of such Indemnified Person. The agreements in this Section
shall survive the termination of this Agreement and the payment of all other
Obligations.
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12.6 Payments Set Aside. To the extent that a Borrower makes a payment
to the Agents or the Lenders, or either Agent or any Lender exercises its right
of set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by such
Agent or such Lender in its discretion) to be repaid to a trustee, a receiver or
any other party, in connection with any Insolvency Proceeding or otherwise, then
(a) to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred and (b)
each Lender severally agrees to pay to the applicable Agent upon demand its pro
rata share of any amount so recovered from or repaid by such Agent.
12.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrowers may not assign or transfer any
of their rights or obligations under this Agreement without the prior written
consent of the Agents and each Lender.
12.8 Assignments, Participations, etc. (a) Any Lender may, with the
written consent of the Company (which consent shall not be required during the
existence of an Event of Default), the Administrative Agent (and in the case of
Canadian Commitments and Canadian Loans, the Canadian Agent) and each Issuing
Lender, at any time assign and delegate to one or more Eligible Assignees
(provided that no written consent of the Company, the Administrative Agent, the
Canadian Agent or any Issuing Lender shall be required in connection with any
assignment and delegation by a Lender to an Eligible Assignee that is an
Affiliate of such Lender) (each an "Assignee") all, or any ratable part of all,
of the Loans, the Commitments, the L/C Obligations and the other rights and
obligations of such Lender hereunder, in a minimum amount of U.S.$5,000,000 (in
the case of U.S. Loans, U.S. Commitments or L/C Obligations) or C$5,000,000 (in
the case of Canadian Loans or Canadian Commitments) (or, if less, the amount of
such Lender's Commitment); provided, however, that the Company, the
Administrative Agent and the Canadian Agent may continue to deal solely and
directly with such Lender in connection with the interest so assigned to an
Assignee until (i) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Company and the Administrative Agent by such Lender
and the Assignee; (ii) such Lender and its Assignee shall have delivered to the
Company and the Administrative Agent an Assignment and Acceptance in the form of
Exhibit D ("Assignment and Acceptance") together with any Note or Notes subject
to such assignment and (iii) such Lender or the Assignee has paid to the
Administrative Agent a processing fee in the amount of U.S.$3,500.
(b) From and after the date that the Administrative Agent notifies the
assignor Lender that it has received and provided its consent (and, to the
extent required, received the consent of the Canadian Agent, each Issuing Lender
and the Company) with respect to an executed Assignment and Acceptance and
payment of the above-referenced processing fee, (i) the Assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Lender under the Loan Documents, and (ii) the
assignor Lender shall, to the extent that rights and obligations hereunder and
under the other Loan Documents have
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been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after the effectiveness of any Assignment
and Acceptance pursuant to subsection 12.8(a)), the applicable Borrower shall,
upon request, execute and deliver to the Administrative Agent a new Note
evidencing the applicable Assignee's assigned Loans and Commitment and, if the
assignor Lender has retained a portion of its Loans and its Commitment, a
replacement Note in the principal amount of the Commitment retained by the
assignor Lender (such Notes to be in exchange for, but not in payment of, the
Notes held by the assignor Lender). Immediately upon the effectiveness of any
Assignment and Acceptance, this Agreement shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and/or the resulting adjustment of the Commitments arising therefrom.
(d) Any Lender may at any time, with notice to the Company, sell to one
or more commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of such
Lender and the other interests of such Lender (the "originating Lender")
hereunder and under the other Loan Documents; provided, however, that (i) the
originating Lender's obligations under this Agreement shall remain unchanged,
(ii) the originating Lender shall remain solely responsible for the performance
of such obligations, (iii) the Company, each Issuing Lender, the Canadian Agent
and the Administrative Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which a
Participant has rights to approve any amendment to, or any consent or waiver
with respect to, this Agreement or any other Loan Document, except to the extent
such amendment, consent or waiver would require unanimous consent of the Lenders
as described in the first proviso to Section 12.1. In the case of any such
participation, the Participant shall be entitled to the benefit of Sections 4.1,
4.3, 4.4 and 12.5 as though it were also a Lender hereunder (provided that no
Participant shall be entitled to any greater amount pursuant to such Sections
than the originating Lender would have been entitled to receive if no such
participation had been sold), and if amounts outstanding under this Agreement
are due and unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off 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.
(e) Notwithstanding any other provision in this Agreement, any U.S.
Lender may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it in favor of any Federal Reserve Bank, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
Applicable Law.
12.9 Confidentiality. Each Lender agrees to take, and to cause its
Affiliates to take, normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential" or
"secret" by the Company and provided to it by the
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Company or any Subsidiary, or by an Agent on the Company's or such Subsidiary's
behalf, under this Agreement or any other Loan Document, and neither such Lender
nor any of its Affiliates shall use any such information other than in
connection with or in enforcement of this Agreement and the other Loan Documents
or in connection with other business now or hereafter existing or contemplated
with the Company or any Subsidiary; except to the extent such information (i)
was or becomes generally available to the public other than as a result of
disclosure by such Lender, or (ii) was or becomes available on a
non-confidential basis from a source other than a Borrower, provided that such
source is not bound by a confidentiality agreement with a Borrower or any
Subsidiary known to such Lender; provided, however, that any Lender may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority to which such Lender is subject or in connection with an
examination of such Lender by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which either Agent
or any Lender or any of their respective Affiliates may be party; (E) to the
extent reasonably required in connection with the exercise of any remedy
hereunder or under any other Loan Document; (F) to such Lender's independent
auditors and other professional advisors on a confidential basis; (G) to any
Participant or Assignee, actual or potential, provided that such Person agrees
in writing to keep such information confidential to the same extent required of
the Lenders hereunder; (H) as to any Lender or any of its Affiliates, as
expressly permitted under the terms of any other document or agreement regarding
confidentiality to which a Borrower or any Subsidiary is party or is deemed
party with such Lender or such Affiliate; and (I) to its Affiliates on a
confidential basis.
12.10 Set-off. In addition to any rights and remedies of the Lenders
provided by law, if an Unmatured Event of Default under subsection 9.1(a), (f)
or (g) or any Event of Default exists, each Lender is authorized at any time and
from time to time, without prior notice to the Borrowers, any such notice being
expressly waived by each Borrower to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time
owing by, such Lender to or for the credit or the account of either Borrower
against any and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not either Agent or such Lender shall have made
demand under this Agreement or any other Loan Document and although such
Obligations may be contingent or unmatured. Each Lender agrees promptly to
notify the Company and the Administrative Agent after any such set-off and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
12.11 Notification of Addresses, Lending Offices, Etc. Each Lender
shall notify the Administrative Agent in writing of any change in the address to
which notices to such Lender should be directed, of addresses of any Lending
Office, of payment instructions in respect of all payments to be made to it
hereunder and of such other administrative information as the Administrative
Agent shall reasonably request.
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12.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of which taken together shall be deemed to constitute but one
and the same instrument.
12.13 Severability. The illegality or unenforceability of any provision
of this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
12.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Lenders, the
Agents and the Agent-Related Persons, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary of,
or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
12.15 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NORTH CAROLINA WITHOUT REGARD TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF; PROVIDED THAT THE PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE XXXXX XX XXXXX XXXXXXXX
XX XX XXX XXXXXX XXXXXX FOR THE WESTERN DISTRICT OF NORTH CAROLINA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS, THE AGENTS AND
THE LENDERS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH OF THE BORROWERS, THE AGENTS AND
THE LENDERS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
BORROWERS, THE AGENTS AND THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NORTH CAROLINA LAW.
12.16 Waiver of Jury Trial. TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, THE BORROWERS, THE LENDERS AND THE AGENTS EACH WAIVE THEIR RESPECTIVE
RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. TO THE EXTENT
82
89
PERMITTED UNDER APPLICABLE LAW, THE BORROWERS, THE LENDERS AND THE AGENTS EACH
AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION
HEREOF OR THEREOF. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENT, RENEWAL, SUPPLEMENT OR MODIFICATION TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
12.17 Pari Passu Obligations. The Company hereby acknowledges and
agrees that the obligations of the Company with respect to the Deferred Notes
(including, without limitation, under any guarantee thereof) shall be pari passu
in right of payment, liens (if any) or other security (if any) with the
Obligations.
12.18 Judgment. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or under any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal and customary banking procedures the
Administrative Agent could purchase the first currency with such other currency
on the Business Day preceding that on which final judgment is given. The
obligation of each Borrower in respect of any such sum due from it to either
Agent or any Lender hereunder or under any other Loan Document shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by such Agent or such
Lender of any sum adjudged to be so due in the Judgment Currency, such Agent or
such Lender may in accordance with normal and customary banking procedures
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 such
Agent or such Lender in the Agreement Currency, the applicable Borrower agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify
such Agent or such Lender against such loss. If the amount of the Agreement
Currency so purchased is greater than the sum originally due to such Agent or
such Lender in such currency, such Agent or such Lender agrees to return the
amount of any excess to the applicable Borrower (or to any other Person who may
be entitled thereto under Applicable Law).
12.19 Entire Agreement. This Agreement, together with the other Loan
Documents (and the Fee Letter referred in subsection 2.12(a)), embodies the
entire agreement and understanding among the Borrowers, the Lenders and the
Agents, and supersedes all prior or contemporaneous agreements and
understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
83
90
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.
XXXXX, INC.
By: s/ B. Xxxxx Xxxxxxx
------------------------------------------
Title: Vice President - Finance
---------------------------------------
LANFIN INVESTMENTS INC.
By: s/ B. Xxxxx Xxxxxxx
------------------------------------------
Title: Vice President and Treasurer
---------------------------------------
84
91
BANK OF AMERICA, N.A.,
as Administrative Agent
By: s/ Xxxxxxx Xxxxxxx
------------------------------------------
Title: Principal
---------------------------------------
BANK OF AMERICA, N.A., as an Issuing Lender
and a U.S. Lender
By: s/ Xxxxxxx Xxxxxxx
------------------------------------------
Title: Principal
---------------------------------------
FIRST UNION NATIONAL BANK,
as Syndication Agent and a U.S. Lender
By: s/ Xxxxx X. Xxxxxx
------------------------------------------
Title: Vice President
---------------------------------------
WACHOVIA BANK, N.A.,
as Documentation Agent and a U.S. Lender
By: s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------------
Title: Senior Vice President
---------------------------------------
85
92
BANK OF AMERICA CANADA,
as Canadian Agent and a Canadian Lender
By: s/ Xxxxxxx X. Xxxx
------------------------------------------
Title: Vice President
---------------------------------------
CONGRESS FINANCIAL CORPORATION (CANADA),
as a Canadian Lender
By: s/ X. Xxxxxxxxx
------------------------------------------
Title: Senior Vice President
---------------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Canadian Lender
By: s/ Xxx Xxxx
------------------------------------------
Title: Director, Commercial Banking
---------------------------------------
86
93
SCHEDULE 2.1
U.S. COMMITMENTS
AND U.S. PRO RATA SHARES
U.S. Lender U.S. Commitment U.S. Pro Rata Share
----------- --------------- -------------------
Bank of America, X.X. X.X.$20,000,000.00 33.333333333 1/3%
First Union National Bank U.S.$20,000,000.00 33.333333333 1/3%
Wachovia Bank, X.X. X.X.$20,000,000.00 33.333333333 1/3%
TOTAL U.S.$60,000,000.00 100.000000000%
94
SCHEDULE 2.2
CANADIAN COMMITMENTS
AND CANADIAN PRO RATA SHARES
Canadian Canadian
Canadian Lender Commitment Pro Rata Share
--------------- ---------- --------------
Bank of America Canada C$8,333,334.00 33.333333333 1/3%
Congress Financial Corporation (Canada) C$8,333,333.00 33.000000000 1/3%
Canadian Imperial Bank of Commerce C$8,333,333.00 33.000000000 1/3%
TOTAL C$25,000,000.00 100.000000000%
95
Schedule 6.7
ERISA
None
96
Schedule 6.16
SUBSIDIARIES OF XXXXX, INC.
Name of Subsidiary State (Province) of Incorporation
------------------ ---------------------------------
Xxxxx Mfg. LLC (1) North Carolina
Caronuts, Inc. (1) North Carolina
Vista Bakery, Inc. (1) North Carolina
South MECKCA, LLC (1) Delaware
West MECKCA, LLC (1) Delaware
Norbehouse, LP (2) Delaware
HSW Mortgage Corp. (3) North Carolina
Cape Cod Potato Chip Company Inc. (1) Massachusetts
Lanhold Investments Inc. (1) Delaware
Tamming Foods Ltd. (4) Ontario
Lanfin Investments Inc. (4) Ontario
--------------------------
(1) Xxxxx, Inc. owns 100% of the outstanding voting equity securities.
(2) Subsidiary of South MECKCA, LLC and West MECKCA, LLC. South MECKCA, LLC is
the sole general partner and owns 1% of the total capital and West MECKCA,
LLC is the sole limited partner and owns 99% of the total capital.
(3) Subsidiary of Norbehouse, L.P., which owns 100% of the outstanding voting
equity securities and 0% of the outstanding 10% Series A Cumulative
Preferred Stock.
(4) Subsidiary of Lanhold Investments Inc., which owns 100% of the outstanding
voting equity securities.
97
Schedule 8.2
PERMITTED LIENS
Deed of trust on all real property of Xxxxx, Inc. contiguous to and including
the corporate headquarters, located at 0000 Xxxxx Xxxxxxxxx, Xxxxxxxxx, XX
00000, securing a note in the original principal amount of $95,000,000 held by
HSW Mortgage.
98
SCHEDULE 12.2
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
XXXXX, INC.
Mr. B. Xxxxx Xxxxxxx
Vice President and Chief Financial Officer
X.X. Xxx 00000
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LANFIN INVESTMENTS INC.
Mr. B. Xxxxx Xxxxxxx
Vice President and Treasurer
X.X. Xxx 00000
0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, X.X. 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A.,
as Administrative Agent
Bank of America, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
99
Administrative Agent's Payment Office:
Bank of America, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
For Credit To:
Reference: Xxxxx, Inc.
BANK OF AMERICA, N.A.,
as an Issuing Lender and as a Lender
Domestic and Offshore Lending Office:
Bank of America, N.A.
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than borrowing notices and Notices of
Conversion/Continuation):
Bank of America, N.A.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
FIRST UNION NATIONAL BANK,
as Syndication Agent and a Lender
Domestic and Offshore Lending Office:
FIRST UNION NATIONAL BANK
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
2
100
Credit and Draft Documentation Contact:
Attention: Xxxxx X. Xxxxxx
Vice President
NC0334
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Operations Contact:
Attention: Xxxxx Xxxx
Loan Operations
VA 7629
00 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Letter of Credit Contact:
Attention: Xxxxx Xxxxxx
Sales Assistant
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3
101
WACHOVIA BANK N.A.,
as Documentation Agent and a Lender
Domestic and Offshore Lending Office:
WACHOVIA BANK, N.A.
000 Xxxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Operations and Letter of Credit Contact:
Attention: Xxxxxxxx Xxxxxx
Account Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Credit and Draft Documentation Contact:
Attention: Xxxxxxxxxxx X. Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA CANADA,
as Canadian Agent and a Canadian Lender
Lending Office:
BANK OF AMERICA CANADA
000 Xxxxx Xxxxxx X
Xxxxxxx XX
Xxxxxx X0X 0X0
Attention: Xxxxxx Sales Xx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4
102
CONGRESS FINANCIAL CORPORATION (CANADA),
as a Canadian Lender
Lending Office:
CONGRESS FINANCIAL CORPORATION (CANADA)
000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Canadian Lender
Lending Office:
CANADIAN IMPERIAL BANK OF COMMERCE
0 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx X0X 0X0
Attention: X.X. Xxxx, Director, Commercial Banking
Telephone: 000-000-0000
Facsimile: 000-000-0000
5
103
EXHIBIT A-1
FORM OF
NOTICE OF U.S. BORROWING
Date: _______________________
To: Bank of America, N.A., as Administrative Agent under the Amended
and Restated Credit Agreement, dated as of May 26, 2000 (as
amended from time to time, the "Credit Agreement"), among Xxxxx,
Inc., Lanfin Investments Inc., various financial institutions,
Bank of America Canada, as Canadian Agent, and Bank of America,
N.A., as Administrative Agent.
Ladies and Gentlemen:
The undersigned, Xxxxx, Inc. (the "Company"), refers to the Credit
Agreement (terms defined therein being used herein as therein defined) and
hereby gives you notice irrevocably, pursuant to Section 2.4 of the Credit
Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is _______________, ____.
2. The Borrowing is to be comprised of [U.S. Base Rate] [Offshore Rate]
Loans.
3. The aggregate amount of the proposed Borrowing is U.S.
$_______________.
[4. The duration of the Interest Period for the Offshore Rate Loans
included in the Borrowing shall be _________ months.]
The Company certifies that the following statements are true on the
date hereof, and will be true on the date of the proposed Borrowing, before and
after giving effect thereto and to the application of the proceeds therefrom:
(a) the representations and warranties contained in Article VI
of the Credit Agreement are true and correct in all material respects
as though made on and as of such date (except to the extent such
representations and warranties expressly relate to an earlier date, in
which case they are true and correct as of such earlier date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed Borrowing;
and
104
(c) the proposed Borrowing will not cause the Total U.S.
Outstandings to exceed the Aggregate U.S. Commitment.
XXXXX, INC.
By:
--------------------------------------
Title:
-----------------------------------
2
105
EXHIBIT A-2
FORM OF
NOTICE OF CANADIAN BORROWING
Date: __________________________
To: Bank of America Canada, as Canadian Agent under the Amended and
Restated Credit Agreement, dated as of May 26, 2000 (as amended from
time to time, the "Credit Agreement"), among Xxxxx, Inc., Lanfin
Investments Inc., various financial institutions, Bank of America
Canada, as Canadian Agent, and Bank of America, N.A., as
Administrative Agent.
Ladies and Gentlemen:
The undersigned, Lanfin Investments Inc. (the "Canadian Borrower"),
refers to the Credit Agreement (terms defined therein being used herein as
therein defined) and hereby gives you notice irrevocably, pursuant to Section
2.6 of the Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is _______________, ____.
2. The Borrowing is to be comprised of Canadian Prime Rate Loans.
3. The aggregate amount of the proposed Borrowing is C$____________.
The Canadian Borrower certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties contained in Article VI
of the Credit Agreement are true and correct in all material respects
as though made on and as of such date (except to the extent such
representations and warranties expressly relate to an earlier date, in
which case they are true and correct as of such earlier date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed Borrowing;
and
106
(c) the proposed Borrowing will not cause the Total Canadian
Outstandings to exceed Aggregate Canadian Commitment.
LANFIN INVESTMENTS INC.
By:
--------------------------------------
Title:
-----------------------------------
2
107
EXHIBIT A-3
FORM OF
NOTICE OF CANADIAN BA BORROWING
Date: ___________________
To: Bank of America Canada, as Canadian Agent under the Amended and
Restated Credit Agreement, dated as of May 26, 2000 (as amended from
time to time, the "Credit Agreement"), among Xxxxx, Inc., Lanfin
Investments Inc., various financial institutions, Bank of America
Canada, as Canadian Agent, and Bank of America, N.A., as
Administrative Agent.
Ladies and Gentlemen:
The undersigned, Lanfin Investments Inc. (the "Canadian Borrower"),
refers to the Credit Agreement (terms defined therein being used herein as
therein defined) and hereby gives you notice irrevocably, pursuant to Section
2.7 of the Credit Agreement of the Canadian BA Borrowing specified below:
1. The Business Day of the proposed Borrowing is _______________, ____.
2. The aggregate amount of the Canadian BA Borrowing is C$____________.
3. The maturity date for the Canadian Bankers Acceptances and Canadian
BA Equivalent Notes included in the Borrowing is ____________, ____.
The Canadian Borrower certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties contained in Article VI
of the Credit Agreement are true and correct in all material respects
as though made on and as of such date (except to the extent such
representations and warranties expressly relate to an earlier date, in
which case they are true and correct as of such earlier date);
(b) no Event of Default or Unmatured Event of Default has
occurred and is continuing or will result from such proposed Borrowing;
and
108
(c) the proposed Borrowing will not cause the Total Canadian
Outstandings to exceed the Aggregate Canadian Commitment.
LANFIN INVESTMENTS INC.
By:
--------------------------------------
Title:
-----------------------------------
2
109
EXHIBIT B
FORM OF
NOTICE OF CONVERSION/CONTINUATION
OF U.S. LOANS
Date: ___________________
To: Bank of America, N.A., as Administrative Agent under the Amended
and Restated Credit Agreement, dated as of May 26, 2000 (as
amended from time to time, the "Credit Agreement"), among Xxxxx,
Inc., Lanfin Investments Inc., various financial institutions,
Bank of America Canada, as Canadian Agent, and Bank of America,
N.A., as Administrative Agent.
Ladies and Gentlemen:
The undersigned, Xxxxx, Inc. (the "Company"), refers to the Credit
Agreement (terms defined therein being used herein as therein defined) and
hereby gives you notice irrevocably, pursuant to Section 2.5 of the Credit
Agreement, with respect to the [conversion] [continuation] of the U.S. Loans
specified herein, that:
1. The Conversion/Continuation Date is _______________, ____.
2. The aggregate amount of the U.S. Loans to be [converted] [continued]
is U.S. $____________.
3. The U.S. Loans are to be [converted into] [continued as] [Offshore
Rate] [U.S. Base Rate] Loans.
[4. The duration of the Interest Period for the Offshore Rate Loans
included in the [conversion] [continuation] shall be ______ months.]
The Company certifies that on the date hereof, and on the proposed
Conversion/Continuation Date both before and after giving effect thereto, no
Event of Default or Unmatured Event of Default has occurred and is continuing,
or would result from such proposed [conversion] [continuation].
XXXXX, INC.
By:
--------------------------------------
Title:
-----------------------------------
110
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
To: Bank of America, N.A., as Administrative Agent, Bank of America Canada,
as Canadian Agent, and the Lenders which are party to the Credit
Agreement referred to below
Reference is made to the Amended and Restated Credit Agreement dated as
of May 26, 2000 (as amended or otherwise modified from time to time, the "Credit
Agreement") among Xxxxx, Inc. (the "Company"), Lanfin Investments Inc., various
financial institutions, Bank of America Canada, as the Canadian Agent, and Bank
of America, N.A., as Administrative Agent. Terms used but not otherwise defined
herein are used herein as defined in the Credit Agreement.
I. Reports. Enclosed herewith is a copy of the Company's most recent [Form
10-Q/Form 10-K] filed with the SEC, which includes the [annual
audited/quarterly] report of the Company as at __________, ____ (the
"Computation Date"). This report fairly presents, in accordance with
GAAP (subject to ordinary, good faith year-end audit adjustments) the
consolidated financial position of the Company and its Subsidiaries, as
of the Computation Date and for the period then ended.
II. Financial Tests. The Company hereby certifies and warrants to you that
the following is a true and correct computation as at the Computation
Date of the following ratios and/or financial restrictions contained in
the Credit Agreement:
A. Subsection 8.1(a) Total Debt to EBITDA Ratio
(1) Total Indebtedness as of the last
day of the Computation Period
ending on the Computation Date: $_____
(2) EBITDA for the Computation Period
ending on the Computation Date $_____
(3) Ratio of Item (1) __._%
to Item (2):
(4) Maximum ratio allowed: ___ to 1
B. Subsection 8.1(b) Interest Coverage Ratio
(1) EBIT for the Computation Period
ending on the Computation Date: $_____
111
(2) Interest Expense for the
Computation Period ending on
the Computation Date: $_____
(3) Ratio of Item (1) _.__%
to Item (2):
(4) Minimum ratio allowed: ____ to 1
III. Defaults. The Company hereby further certifies and warrants to you as
of the date of the filing of the [Form 10-Q/Form 10-K] referred to in
clause I that no Event of Default or Unmatured Event of Default has
occurred and is continuing.
IN WITNESS WHEREOF, the Company has caused this Certificate to be
executed and delivered by its duly authorized officer this __________________
day of ________________, ____.
XXXXX, INC.
By:
--------------------------------------
Title:
-----------------------------------
2
112
EXHIBIT D
FORM OF
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of __________, _____ is made between
______________________________________ (the "Assignor") and
______________________________________ (the "Assignee").
RECITALS
The Assignor is party to the Amended and Restated Credit
Agreement dated as of May 26, 2000 (as amended or otherwise modified from time
to time, the "Credit Agreement") among Xxxxx, Inc. (the "Company"), Lanfin
Investments Inc., various financial institutions, Bank of America Canada, as
Canadian Agent, and Bank of America, N.A., as Administrative Agent. Terms
defined in the Credit Agreement and not defined in this Assignment and
Acceptance are used herein as defined in the Credit Agreement.
The Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the Credit Agreement in
respect of the [U.S.][Canadian] Commitment, the [U.S.][Canadian] Loans[, the L/C
Obligations] and the other rights and obligations of the Assignor in connection
therewith, and the Assignee wishes to accept assignment of such rights and to
assume such obligations from the Assignor, in each case on the terms and subject
to the conditions of this Assignment and Acceptance.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
4. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance), __% of the Assignor's
[U.S.][Canadian] Commitment, together with a corresponding portion of the
Assignor's outstanding [U.S.][Canadian] Loans[, L/C Obligations] and all related
rights, benefits, obligations, liabilities and indemnities of the Assignor under
and in connection with the Credit Agreement (all of the foregoing being herein
called the "Assigned Rights and Obligations").
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a [U.S.][Canadian] Lender under the Credit Agreement, including the
requirements concerning confidentiality and the payment of
113
indemnification. The Assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of the Credit Agreement
are required to be performed by it as a [U.S.][Canadian] Lender. It is the
intent of the parties hereto that the Assignor shall relinquish its rights and
be released from its obligations under the Credit Agreement to the extent such
obligations have been assumed by the Assignee; provided, however, that the
Assignor shall not relinquish its rights under Article IV or Sections 12.4 or
12.5 of the Credit Agreement in respect of the Assigned Rights and Obligations
to the extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's [U.S.][Canadian] Commitment
will be [U.S.][C]$__________ and the Assignor's Commitment will be
[U.S.][C]$__________.
5. Payments.
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to the principal
amount of all outstanding and funded [U.S.][Canadian] Loans and participations
included within the Assigned Rights and Obligations.
(b) The [Assignor] [Assignee] further agrees to pay to the
Administrative Agent a processing fee in the amount specified in Section 12.8(a)
of the Credit Agreement.
6. Reallocation of Payments.
Any interest, fees and other payments accrued to the Effective Date
with respect to the Assigned Rights and Obligations shall be for the account of
the Assignor. Any interest, fees and other payments accrued on and after the
Effective Date with respect to the Assigned Rights and Obligations shall be for
the account of the Assignee. Each of the Assignor and the Assignee agrees that
it will hold in trust for the other party any interest, fees and other amounts
which it may receive to which the other party is entitled pursuant to the
preceding two sentences and pay to the other party any such amounts which it may
receive promptly upon receipt.
7. Independent Credit Decision.
The Assignee (a) acknowledges that it has received a copy of the Credit
Agreement and the Schedules and Exhibits thereto, together with copies of the
most recent financial statements referred to in Section 7.1 of the Credit
Agreement, and such other documents and information as it has deemed appropriate
to make its own credit and legal analysis and decision to enter into this
Assignment and Acceptance; and (b) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agent, any Issuing Lender
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 and legal decisions in
taking or not taking action under the Credit Agreement.
2
114
8. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Acceptance shall be __________, ___ (the "Effective
Date"); provided that the following conditions precedent shall have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed
and delivered by the Assignor and the Assignee;
(ii) the consent of the Company, the Administrative
Agent, the Canadian Agent and each Issuing Lender, if required
for an effective assignment of the Assigned Rights and
Obligations by the Assignor to the Assignee under Section
12.8(a) of the Credit Agreement, shall have been duly obtained
and shall be in full force and effect as of the Effective
Date;
(iii) the Assignee shall pay to the Assignor all
amounts due to the Assignor under this Assignment and
Acceptance; and
(iv) the processing fee referred to in Section 2(b)
hereof shall have been paid to the Administrative Agent.
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Administrative
Agent, for acknowledgment by the Administrative Agent, a Notice of Assignment
substantially in the form attached hereto as Schedule 1.
[9. Administrative Agent. INCLUDE ONLY IF ASSIGNOR IS
ADMINISTRATIVE AGENT
(a) The Assignee hereby appoints and authorizes the Assignor
to take such action as Administrative Agent on its behalf and to exercise such
powers under the Credit Agreement as are delegated to the Administrative Agent
by the Lenders pursuant to the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by
the Assignor in its capacity as Administrative Agent under the Credit
Agreement.]
[9. Canadian Agent. INCLUDE ONLY IF ASSIGNOR IS
CANADIAN AGENT
(c) The Assignee hereby appoints and authorizes the Assignor
to take such action as Canadian Agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Canadian Agent by the Lenders
pursuant to the terms of the Credit Agreement.
3
115
(d) The Assignee shall assume no duties or obligations held by
the Assignor in its capacity as Canadian Agent under the Credit Agreement.]
10. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any Lien or other adverse claim; (ii) it
is duly organized and existing and it has the full power and authority to take,
and has taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Assignment and
Acceptance, and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
Person is required of it for such execution, delivery or performance; and (iv)
this Assignment and Acceptance has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of the Assignor, enforceable
against the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection with,
and assumes no responsibility with respect to, the solvency, financial condition
or statements of either Borrower, or the performance or observance by either
Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
4
116
11. Further Assurances.
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Company or the Administrative Agent which may be
required in connection with the assignment and assumption contemplated hereby.
12. Miscellaneous.
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties hereto.
No failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Assignment and Acceptance shall be without
prejudice to any rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation, execution
and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NORTH CAROLINA. The
Assignor and the Assignee each irrevocably submits to the non-exclusive
jurisdiction of any State or Federal court sitting in Charlotte, North Carolina
over any suit, action or proceeding arising out of or relating to this
Assignment and Acceptance and irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such North Carolina
State or Federal court. Each party to this Assignment and Acceptance hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of such action or proceeding.
(f) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE ASSIGNOR
AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE,
THE CREDIT AGREEMENT, ANY RELATED DOCUMENT OR AGREEMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING OR STATEMENT (WHETHER ORAL OR WRITTEN).
5
117
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:
-----------------------------------------
Title:
--------------------------------------
Address:
------------------------------------
[ASSIGNEE]
By:
-----------------------------------------
Title:
--------------------------------------
Address:
------------------------------------
6
118
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
---------------, ----
TO: Xxxxx, Inc.
Lanfin Investments Inc.
Bank of America, N.A.,
as Administrative Agent, and
Bank of America Canada,
as Canadian Agent
Ladies and Gentlemen:
We refer to the Amended and Restated Credit Agreement, dated as of May
26, 2000 (as amended or otherwise modified from time to time, the "Credit
Agreement"), among Xxxxx, Inc. (the "Company"), Lanfin Investments Inc., various
financial institutions, Bank of America Canada, as Canadian Agent, and Bank of
America, N.A., as Administrative Agent. Terms defined in the Credit Agreement
are used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") [a financial institution resident in Canada for Canadian tax
purposes] of [all][part of] the right, title and interest of the Assignor in and
to the Credit Agreement (including, without limitation, [all][part of] the
right, title and interest of the Assignor in and to the Assignor's
[U.S.][Canadian] Commitment, [and] [all][part of] outstanding [U.S.][Canadian]
Loans of the Assignor, [and the Assignor's participation in the L/C
Obligations]) pursuant to the Assignment and Acceptance Agreement attached
hereto (the "Assignment and Acceptance").
Before giving effect to such assignment, the Assignor's
[U.S.][Canadian] Pro Rata Share is _________. After giving effect to such
assignment (assuming no repayments, new fundings or new issuances after
________), the Assignor's [U.S.][Canadian] Pro Rata Share is _________% and the
Assignee's [U.S.][Canadian] Pro Rata Share is ___________%.
2. The Assignee agrees that, upon receiving the consent, if applicable,
of the Administrative Agent, each Issuing Lender and the Company to such
assignment, the Assignee will be bound by the terms of the Credit Agreement as
fully and to the same extent as if the Assignee were the Lender originally
holding such interest in the Credit Agreement.
119
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: _______________________
Address: _______________________________
_______________________________
_______________________________
Attention: ____________________________
Telephone: (___) ______________________
Telecopier: (___) _____________________
Telex (Answerback): ___________________
(B) Payment Instructions:
Account No.: ___________________________
At: ___________________________
___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and the Assignee contained in the Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
-----------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
120
[NAME OF ASSIGNEE]
By:
-----------------------------------------
Title:
--------------------------------------
By:
-----------------------------------------
Title:
--------------------------------------
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
XXXXX, INC.
By:
-----------------------------------
Its:
----------------------------------
LANFIN INVESTMENTS, INC.
By:
-----------------------------------
Its:
----------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent
By:
-----------------------------------
Its:
----------------------------------
[BANK OF AMERICA, N.A., as an
Issuing Lender
By:
-----------------------------------
Its:
----------------------------------]
121
[BANK OF AMERICA CANADA,
as Canadian Agent
By:
-----------------------------------
Its:
----------------------------------]
122
EXHIBIT E-1
FORM OF U.S. NOTE
U.S.$___________________ _____________, ____
FOR VALUE RECEIVED, the undersigned, XXXXX, INC. (the
"Company"), hereby promises to pay to the order of (the "Lender") the principal
sum of ________________ U.S. Dollars (U.S.$____________) or, if less, the
aggregate unpaid principal amount of all U.S. Loans made by the Lender to the
Company pursuant to the Amended and Restated Credit Agreement, dated as of May
26, 2000 (as amended or otherwise modified from time to time, the "Credit
Agreement"), among the Company, Lanfin Investments Inc., various financial
institutions, Bank of America Canada, as Canadian Agent, and Bank of America,
N.A., as Administrative Agent, on the dates and in the amounts provided in the
Credit Agreement. The Company further promises to pay interest on the unpaid
principal amount of the U.S. Loans evidenced hereby from time to time at the
rates, on the dates, and otherwise as provided in the Credit Agreement.
The Lender is authorized to endorse the amount and the date on
which each U.S. Loan is made and each payment of principal with respect thereto
on the schedules annexed hereto and made a part hereof, or on continuations
thereof which shall be attached hereto and made a part hereof; provided that any
failure to endorse such information on such schedule or continuation thereof
shall not in any manner affect any obligation of the Company under the Credit
Agreement and this Promissory Note (this "Note").
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement, which Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events.
Terms defined in the Credit Agreement are used herein with
their defined meanings therein unless otherwise defined herein. This Note shall
be governed by, and construed and interpreted in accordance with, the laws of
the State of North Carolina without regard to the conflicts or choice of law
principles thereof.
123
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed and delivered as of the day and year first above written.
XXXXX, INC.
By:
--------------------------------------
Title:
-----------------------------------
2
124
Schedule A to Note
U.S. BASE RATE LOANS AND REPAYMENTS OF
U.S. BASE RATE LOANS
(2) (3)
Amount of Amount of (4)
(1) U.S. Base U.S. Base Rate Notation
Date Rate Loan Loan Repaid Made By
---- --------- ----------- -------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
125
Schedule B to Note
OFFSHORE RATE LOANS AND REPAYMENTS
OF OFFSHORE RATE LOANS
(3) (4)
(2) Interest Amount of
Amount of Period for Offshore (5)
(1) Offshore Offshore Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made By
---- --------- --------- ----------- -------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ----------
126
EXHIBIT E-2
FORM OF CANADIAN NOTE
C$___________________ ______________, ____
FOR VALUE RECEIVED, the undersigned, LANFIN INVESTMENTS INC.
(the "Canadian Borrower"), hereby promises to pay to the order of (the "Lender")
the principal sum of ________________ Canadian Dollars (C$____________) or, if
less, the aggregate unpaid principal amount of all Canadian Loans made by the
Lender to the Canadian Borrower pursuant to the Amended and Restated Credit
Agreement, dated as of May 26, 2000 (as amended or otherwise modified from time
to time, the "Credit Agreement"), among Xxxxx, Inc., the Canadian Borrower,
various financial institutions, Bank of America Canada, as Canadian Agent, and
Bank of America, N.A., as Administrative Agent, on the dates and in the amounts
provided in the Credit Agreement. The Canadian Borrower further promises to pay
interest on the unpaid principal amount of the Canadian Loans evidenced hereby
from time to time at the rates, on the dates, and otherwise as provided in the
Credit Agreement.
The Lender is authorized to endorse the amount and the date on
which each Canadian Loan is made and each payment of principal with respect
thereto on the schedules annexed hereto and made a part hereof, or on
continuations thereof which shall be attached hereto and made a part hereof;
provided that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Canadian Borrower under the Credit Agreement and this Promissory Note (this
"Note").
This Note is one of the Notes referred to in, and is entitled
to the benefits of, the Credit Agreement, which Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and the guaranty hereof by Xxxxx, Inc.
Terms defined in the Credit Agreement are used herein with
their defined meanings therein unless otherwise defined herein. This Note shall
be governed by, and construed and interpreted in accordance with, the laws of
the State of North Carolina without regard to the conflicts or choice of law
principles thereof.
127
IN WITNESS WHEREOF, the Canadian Borrower has caused this Note to be
duly executed and delivered as of the day and year first above written.
LANFIN INVESTMENTS INC.
By:
--------------------------------------
Title:
-----------------------------------
2
128
Schedule A to Note
CANADIAN PRIME RATE LOANS AND REPAYMENTS OF
CANADIAN PRIME RATE LOANS
(3)
(2) Amount of
Amount of Canadian Prime (4)
(1) Canadian Prime Rate Loan Notation
Date Rate Loan Repaid Made By
---- --------- ------ -------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
---------- ---------- ---------- ----------
129
EXHIBIT F
FORM OF
CANADIAN BA EQUIVALENT NOTE
C$ ______________ Date: _____________
The undersigned refers to the Amended and Restated Credit Agreement
dated as of May 26, 2000 among Xxxxx, Inc., Lanfin Investments Inc., various
financial institutions, Bank of America Canada, as Canadian Agent, and Bank of
America, N.A., as Administrative Agent (as amended, modified or restated from
time to time, the "Credit Agreement"). All capitalized terms set forth herein
and not otherwise defined have the respective meanings specified in the Credit
Agreement.
For value received, the undersigned promises to pay on _______________
or on such earlier date as such amount may become due pursuant to the provisions
of the Credit Agreement (the "Maturity Date"), to or to the order of
___________________ (the "Holder"), the sum of C$_________ , without interest
until the Maturity Date, and thereafter, with interest in accordance with the
Credit Agreement.
The undersigned hereby waives presentment, protest and notice of every
kind and waives any defense based upon indulgences which may be granted by the
Holder to the undersigned and waives any days of grace.
Payment of this note shall be made in Canadian Dollars in immediately
available funds. This note evidences debt incurred under, is secured as provided
in, and is subject to the terms and provisions of, the Credit Agreement.
[This note shall be governed by the laws of the Province of Ontario and
the laws of Canada applicable in such Province.]
LANFIN INVESTMENTS INC.
By:
--------------------------------------
Name:
Title:
