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CREDIT AGREEMENT
Dated as of August 27, 2004
among
THL BUILDCO, INC.
(to be merged ultimately with and into Nortek, Inc.),
as the U.S. Borrower,
The Canadian Borrowers Named Herein,
THL BUILDCO HOLDINGS, INC.
(to be renamed Nortek Holdings, Inc.),
UBS AG, STAMFORD BRANCH,
as U.S. Administrative Agent
and as Canadian Administrative Agent,
UBS AG CANADA BRANCH,
as Canadian Swing Line Lender,
BANK OF AMERICA, N.A.,
as U.S. L/C Issuer,
BANK OF AMERICA, N.A. (CANADA BRANCH),
as Canadian L/C Issuer,
UBS LOAN FINANCE LLC,
as U.S. Swing Line Lender,
The Other Lenders Party Hereto,
UBS SECURITIES LLC and
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as Joint Lead Arrangers and Joint Book Managers,
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
as Syndication Agent,
and
BANK OF AMERICA, N.A. and
BEAR XXXXXXX CORPORATE LENDING INC.,
as Co-Documentation Agents
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Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms....................................................................................... 2
1.02 Other Interpretive Provisions....................................................................... 53
1.03 Accounting Terms.................................................................................... 53
1.04 Rounding............................................................................................ 54
1.05 References to Agreements and Laws................................................................... 54
1.06 Times of Day........................................................................................ 54
1.07 Timing of Payment or Performance.................................................................... 54
1.08 Currency Equivalents Generally...................................................................... 54
1.09 Specified Transactions.............................................................................. 54
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans........................................................................................... 55
2.02 Borrowings, Conversions and Continuations of Loans.................................................. 55
2.03 Letters of Credit................................................................................... 58
2.04 Swing Line Loans.................................................................................... 68
2.05 Prepayments......................................................................................... 72
2.06 Termination, Reduction or Reallocation of Commitments............................................... 75
2.07 Repayment of Loans.................................................................................. 77
2.08 Interest............................................................................................ 78
2.09 Fees................................................................................................ 79
2.10 Computation of Interest and Fees.................................................................... 80
2.11 Evidence of Indebtedness............................................................................ 80
2.12 Payments Generally.................................................................................. 81
2.13 Sharing of Payments................................................................................. 83
2.14 Increase in Term Commitments........................................................................ 84
2.15 Increase in Revolving Credit Commitments............................................................ 86
2.16 Canadian BAs........................................................................................ 87
2.17 Additional Canadian Borrowers....................................................................... 89
ARTICLE III
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
3.01 Taxes............................................................................................... 89
3.02 Illegality.......................................................................................... 92
3.03 Inability To Determine Rates........................................................................ 92
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.............. 93
3.05 Funding Losses...................................................................................... 94
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3.06 Matters Applicable to All Requests for Compensation................................................. 95
3.07 Replacement of Lenders Under Certain Circumstances.................................................. 96
3.08 Survival............................................................................................ 97
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension.............................................................. 97
4.02 Conditions to All Credit Extensions................................................................. 102
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with Laws............................................ 103
5.02 Authorization; No Contravention..................................................................... 103
5.03 Governmental Authorization; Other Consents.......................................................... 103
5.04 Binding Effect...................................................................................... 104
5.05 Financial Statements; No Material Adverse Effect.................................................... 104
5.06 Litigation.......................................................................................... 105
5.07 No Default.......................................................................................... 105
5.08 Ownership of Property; Liens........................................................................ 105
5.09 Environmental Compliance............................................................................ 106
5.10 Insurance........................................................................................... 107
5.11 Taxes............................................................................................... 107
5.12 ERISA Compliance.................................................................................... 107
5.13 Subsidiaries; Equity Interests...................................................................... 108
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act...................... 108
5.15 Disclosure.......................................................................................... 109
5.16 Compliance with Laws................................................................................ 109
5.17 Intellectual Property; Licenses, Etc................................................................ 109
5.18 Solvency............................................................................................ 109
5.19 Casualty, Etc....................................................................................... 109
5.20 Perfection, Etc..................................................................................... 110
5.21 Tax Shelter Regulations............................................................................. 110
5.22 Anti-Terrorism Law.................................................................................. 110
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial Statements................................................................................ 111
6.02 Certificates; Other Information..................................................................... 112
6.03 Notices............................................................................................. 115
6.04 Payment of Obligations.............................................................................. 115
6.05 Preservation of Existence, Etc...................................................................... 115
6.06 Maintenance of Properties........................................................................... 116
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6.07 Maintenance of Insurance............................................................................ 116
6.08 Compliance with Laws................................................................................ 116
6.09 Books and Records................................................................................... 116
6.10 Inspection Rights................................................................................... 116
6.11 Use of Proceeds..................................................................................... 116
6.12 Covenant To Guarantee Obligations and Give Security................................................. 117
6.13 Compliance with Environmental Laws.................................................................. 120
6.14 Further Assurances.................................................................................. 120
6.15 Unrestricted Subsidiaries........................................................................... 120
6.16 Post-Closing Collateral Matters..................................................................... 120
ARTICLE VII
NEGATIVE COVENANTS
7.01 Liens............................................................................................... 122
7.02 Investments......................................................................................... 125
7.03 Indebtedness........................................................................................ 128
7.04 Fundamental Changes................................................................................. 132
7.05 Dispositions........................................................................................ 133
7.06 Restricted Payments................................................................................. 134
7.07 Change in Nature of Business........................................................................ 137
7.08 Transactions with Affiliates........................................................................ 137
7.09 Burdensome Agreements............................................................................... 138
7.10 Use of Proceeds..................................................................................... 138
7.11 Financial Covenants................................................................................. 139
7.12 Amendments of Organization Documents, Etc........................................................... 140
7.13 Accounting Changes.................................................................................. 140
7.14 Prepayments, Etc. of Indebtedness................................................................... 140
7.15 Amendment of Acquisition Agreement.................................................................. 140
7.16 Equity Interests of the U.S. Borrower and Subsidiaries.............................................. 141
7.17 Holding Company..................................................................................... 141
7.18 Designated Senior Debt.............................................................................. 141
7.19 Maintenance of Corporate Separateness............................................................... 141
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default................................................................................... 142
8.02 Remedies upon Event of Default...................................................................... 144
8.03 Application of Funds................................................................................ 145
ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS
9.01 Appointment and Authorization of Agents............................................................. 147
9.02 Delegation of Duties................................................................................ 151
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9.03 Liability of Agents................................................................................. 151
9.04 Reliance by Agents.................................................................................. 151
9.05 Notice of Default................................................................................... 152
9.06 Credit Decision; Disclosure of Information by Agents................................................ 152
9.07 Indemnification of Agents........................................................................... 153
9.08 Agents in Their Individual Capacities............................................................... 153
9.09 Successor Agents.................................................................................... 154
9.10 Administrative Agents May File Proofs of Claim...................................................... 154
9.11 Collateral and Guaranty Matters..................................................................... 155
9.12 Other Agents; Arrangers and Managers................................................................ 156
9.13 Appointment of Supplemental Administrative Agents................................................... 156
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc..................................................................................... 157
10.02 Notices and Other Communications; Facsimile Copies.................................................. 160
10.03 No Waiver; Cumulative Remedies...................................................................... 161
10.04 Attorney Costs, Expenses and Taxes.................................................................. 161
10.05 Indemnification by the Borrowers.................................................................... 162
10.06 Payments Set Aside.................................................................................. 163
10.07 Successors and Assigns.............................................................................. 163
10.08 Confidentiality..................................................................................... 168
10.09 Setoff.............................................................................................. 169
10.10 Interest Rate Limitation............................................................................ 169
10.11 Counterparts........................................................................................ 170
10.12 Integration......................................................................................... 170
10.13 Survival of Representations and Warranties.......................................................... 170
10.14 Severability........................................................................................ 171
10.15 Tax Forms........................................................................................... 171
10.16 Governing Law....................................................................................... 173
10.17 Waiver of Right to Trial by Jury.................................................................... 174
10.18 Binding Effect...................................................................................... 174
10.19 Judgment Currency................................................................................... 174
10.20 Collection Allocation Mechanism..................................................................... 175
10.21 Covenant to Pay..................................................................................... 176
SIGNATURES...................................................................................................... S-1
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SCHEDULES
I Guarantors
1.01(a) Real Properties
1.01(b) Existing Letters of Credit
1.01(c) Non-Guarantor Domestic Subsidiaries
2.01 Commitments and Pro Rata Shares
5.05 Supplement to Interim Financial Statements
5.06 Litigation
5.08(b) Owned Real Property
5.08(c) Leased Real Property
5.09 Environmental Matters
5.13 Subsidiaries and Other Equity Investments
6.16(a) Landlord Access Agreements
6.16(b) Landlord Consent
7.01 Existing Liens
7.02 Existing Investments
7.03(a)(ii) Existing Notes to Remain Outstanding
7.03(b) Existing Indebtedness
7.05(j) Disposition of Assets
7.08 Transactions with Affiliates
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
Form of
A-1 U.S. Committed Loan Notice
A-2 Canadian Committed Loan Notice
B-1 U.S. Swing Line Loan Notice
B-2 Canadian Swing Line Loan Notice
C-1 Term Note
C-2 U.S. Revolving Credit Note
C-3 Canadian Note
D Compliance Certificate
E Assignment and Assumption
F-1 Parent Guaranty
F-2 U.S. Subsidiary Guaranty
F-3 Canadian Guaranty
G U.S. Security Agreement
H-1 Fee Mortgage
H-2 Leasehold Mortgage
I Intellectual Property Security Agreement
J-1 Opinion Matters - Counsel to Loan Parties
J-2 Opinion Matters - Canadian Counsel to Loan Parties
J-3 Opinion Matters - Local Counsel to Loan Parties
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K Assumption Agreement
L Intercompany Note
M-1 Perfection Certificate
M-2 Perfection Certificate Supplement
N Acceptance Note
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("AGREEMENT") is entered into as of
August 27, 2004, among THL BUILDCO, INC., a Delaware corporation (the "COMPANY"
and, together with the Surviving Corporation (as hereinafter defined), the "U.S.
BORROWER"), BROAN-NUTONE CANADA INC., an Ontario corporation, and VENTROL AIR
HANDLING SYSTEMS INC., a Canadian corporation, as Canadian Borrowers, THL
BUILDCO HOLDINGS, INC., a Delaware corporation ("HOLDINGS"), each lender from
time to time party hereto which extends a Commitment or holds any Loan to the
U.S. Borrower (the "U.S. LENDERS"), each lender from time to time a party hereto
which extends a Commitment or holds any Loan to the Canadian Borrower (the
"CANADIAN LENDERS" and, together with the U.S. Lenders, the "LENDERS" and
individually, a "LENDER"), CREDIT SUISSE FIRST BOSTON, acting through its Cayman
Islands Branch ("CSFB"), as Syndication Agent, UBS SECURITIES LLC and CSFB, as
Joint Lead Arrangers and Joint Book Managers, BANK OF AMERICA, N.A. and BEAR
XXXXXXX CORPORATE LENDING INC., as Co-Documentation Agents, UBS AG, STAMFORD
BRANCH, as U.S. Administrative Agent and as Canadian Administrative Agent, UBS
AG CANADA BRANCH, as Canadian Swing Line Lender, UBS LOAN FINANCE LLC, as U.S.
Swing Line Lender, BANK OF AMERICA, N.A., as U.S. L/C Issuer and BANK OF
AMERICA, N.A. (CANADA BRANCH), as Canadian L/C Issuer.
PRELIMINARY STATEMENTS
The Company was organized by Holdings to acquire (the
"ACQUISITION") all of the Equity Interests of Nortek Holdings, Inc., a Delaware
corporation (the "TARGET COMPANY").
Pursuant to the Stock Purchase Agreement dated as of July 15,
2004 (the "ACQUISITION AGREEMENT") between Holdings, the Company, Xxxxx
Investment Associates VI, L.P., and certain other stockholders of the Target
Company, the Company agreed (i) to acquire all of the outstanding capital stock
of the Target Company (the "SHARE ACQUISITION"), (ii) to merge (the "FIRST
MERGER") with and into the Target Company with the Target Company being the
surviving corporation and (iii) to merge (the "SECOND MERGER" and, together with
the First Merger, the "MERGERS") with and into Nortek, Inc., a Delaware
corporation (the "SURVIVING CORPORATION") and wholly owned direct subsidiary of
the Target Company, with the Surviving Corporation being the surviving entity.
The Company has requested that (a) simultaneously with the
consummation of the Share Acquisition, the Lenders make Term Loans to the
Company in an aggregate amount of $700,000,000 to pay, among other things, a
portion of the cash consideration for the Share Acquisition, (b) from time to
time, the U.S. Revolving Credit Lenders (as hereinafter defined) lend to the
U.S. Borrower and the U.S. L/C Issuer (as hereinafter defined) issue U.S.
Letters of Credit (as hereinafter defined) for the account of the U.S. Borrower
under a $90,000,000 revolving credit facility for the U.S. Borrower and (c) from
time to time, the Canadian Lenders (as hereinafter defined) lend to the Canadian
Borrowers and the Canadian L/C Issuer (as hereinafter defined) issue Canadian
Letters of Credit under a $10,000,000 revolving credit facility.
The Lenders have indicated their willingness to lend and the
L/C Issuers have indicated their willingness to so issue Letters of Credit, in
each case, on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"ACCEPTANCE NOTE" has the meaning specified in Section
2.16(e).
"ACQUISITION" has the meaning specified in the Preliminary
Statements to this Agreement.
"ACQUISITION AGREEMENT" has the meaning specified in the
Preliminary Statements to this Agreement.
"ACQUISITION DOCUMENTS" means the Acquisition Agreement and
the other documentation relating to the Acquisition or the Transaction.
"ADMINISTRATIVE AGENTS" means the U.S. Administrative Agent
and the Canadian Administrative Agent, or any successor administrative agent to
either of the foregoing.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the applicable Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person
that, directly or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "CONTROL"
means the possession, direct or indirect, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. "CONTROLLING" and
"CONTROLLED" have meanings correlative thereto.
"AGENT-RELATED PERSONS" means the Administrative Agents,
together with their Affiliates, and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.
"AGENTS" means, collectively, the Administrative Agents, the
Arrangers, the Syndication Agent, the Co-Documentation Agents and the
Supplemental Administrative Agents (if any).
"AGGREGATE COMMITMENTS" means the Commitments of all the
Lenders.
"AGREEMENT" means this Credit Agreement.
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"ANTI-TERRORISM LAWS" has the meaning given to such term by
Section 5.22(a).
"APPLICABLE" shall mean, unless the context requires
otherwise, when used with respect to (i) an Administrative Agent, the U.S.
Administrative Agent with respect to matters relating to the U.S. Facility, U.S.
Letters of Credit or U.S. Loans and the Canadian Administrative Agent with
respect to matters relating to the Canadian Facility, Canadian Letters of Credit
or Canadian Loans, (ii) an L/C Issuer, the U.S. L/C Issuer with respect to any
matter relating to U.S. Letters of Credit and the Canadian L/C Issuer with
respect to any matter relating to Canadian Letters of Credit, (iii) a Swing Line
Lender, the U.S. Swing Line Lender with respect to any matter relating to U.S.
Swing Line Loans and the Canadian Swing Line Lender with respect to any matter
relating to Canadian Swing Line Loans, (iv) a Lender or Revolving Credit Lender,
the U.S. Revolving Credit Lenders with respect to any matter relating to the
U.S. Revolving Credit Facility and the Canadian Lenders with respect to the
Canadian Revolving Credit Facilities, and (v) a Borrower, the U.S. Borrower with
respect to matters relating to the U.S. Facility and one or more Canadian
Borrowers with respect to the Canadian Facility.
"APPLICABLE RATE" means a percentage per annum equal to:
(a) with respect to Term Loans, (i) until the first Business
Day immediately following the date on which the Compliance Certificate
for the fiscal quarter ended March 31, 2005 is delivered pursuant to
Section 6.02(b), (A) for Eurodollar Rate Loans, 2.50% and (B) for Base
Rate Loans, 1.50%, and (ii) thereafter, (A) if the Leverage Ratio is
less than or equal to 4.50:1.00 as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to
Section 6.02(b), (1) for Eurodollar Rate Loans, 2.25% and (2) for Base
Rate Loans, 1.25% and (B) if the Leverage Ratio is greater than
4.50:1.00 as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b), (1)
for Eurodollar Rate Loans, 2.50% and (2) for Base Rate Loans, 1.50%;
provided, that the Applicable Rates referred to in clause (i) shall
apply (x) as of the first Business Day after the date on which a
Compliance Certificate was required to have been delivered but was not
delivered, and shall continue to so apply to and including the date on
which such Compliance Certificate is so delivered (and thereafter the
Applicable Rates otherwise determined in accordance with this
definition shall apply) and (y) at the option of the U.S.
Administrative Agent or the Requisite Class Lenders holding Term Loans,
the Applicable Rates referred to in clause (i) shall apply as of the
first Business Day after an Event of Default shall have occurred and be
continuing, and shall continue to so apply to but excluding the date on
which such Event of Default is cured or waived (and thereafter the
Applicable Rates otherwise determined in accordance with this
definition shall apply); and
(b) with respect to the Revolving Credit Loans, Commitment
Fees and Letters of Credit, (i) until the first Business Day
immediately following the date on which the Compliance Certificate for
the fiscal quarter ended March 31, 2005 is delivered pursuant to
Section 6.02(b), (A) for Eurodollar Rate Loans and Letters of Credit,
2.25%, (B) for Base Rate Loans, 1.25%, (C) for Commitment Fees, 0.50%
and (D) for Canadian BAs, 2.25% and (ii) thereafter, the following
percentages per annum, based upon the Leverage
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Ratio as set forth in the most recent Compliance Certificate received
by the Administrative Agents pursuant to Section 6.02(b):
Applicable Rate
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Eurodollar
Rate and Applicable
Pricing Letters of Canadian BA
Level Leverage Ratio Credit Base Rate Commitment Fees Stamping Fee
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1 <=3.50:1 1.25% 0.25% 0.375% 1.25%
2 >3.50:1 but <=4.00:1 1.50% 0.50% 0.375% 1.50%
3 >4.00:1 but <=4.50:1 1.75% 0.75% 0.375% 1.75%
4 >4.50:1 but <=5.00:1 2.00% 1.00% 0.50% 2.00%
5 >5.00:1 2.25% 1.25% 0.50% 2.25%
Any increase or decrease in the Applicable Rate resulting from a change in the
Leverage Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section
6.02(b); provided, that Pricing Level 5 shall apply (x) as of the first Business
Day after the date on which a Compliance Certificate was required to have been
delivered but was not delivered, and shall continue to so apply to and including
the date on which such Compliance Certificate is so delivered (and thereafter
the Pricing Level otherwise determined in accordance with this definition shall
apply) and (y) at the option of the applicable Administrative Agent or the
applicable Requisite Class Lenders, Pricing Level 5 shall apply as of the first
Business Day after an Event of Default shall have occurred and be continuing,
and shall continue to so apply to but excluding the date on which such Event of
Default is cured or waived (and thereafter the Pricing Level otherwise
determined in accordance with this definition shall apply).
"APPROVED DOMESTIC BANK" has the meaning specified in clause
(b) of the definition of "Cash Equivalents".
"APPROVED FUND" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
"ARRANGERS" means UBS Securities LLC and CSFB, in their
capacities as exclusive joint lead arrangers and exclusive joint book managers.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of Exhibit E.
"ASSUMPTION AGREEMENT" has the meaning specified in Section
4.01(a)(xviii).
"ATTORNEY COSTS" means and includes all reasonable fees,
expenses and disbursements of any law firm or other external counsel.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect
of any Capitalized Lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such
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Person prepared as of such date in accordance with GAAP, and (b) in respect of
any Synthetic Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated
balance sheet of the Target Company and its Subsidiaries for the fiscal year
ended December 31, 2003, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year of the
Target Company and its Subsidiaries, including the notes thereto.
"AUTO-RENEWAL LETTER OF CREDIT" has the meaning specified in
Section 2.03(b)(iii).
"BASE RATE" means for any day a fluctuating rate per annum
equal to (a) in the case of U.S. Loans, the higher of (i) the Federal Funds Rate
plus 1/2 of 1% and (ii) the rate of interest in effect for such day as
determined by the U.S. Administrative Agent as the U.S. corporate base rate, (b)
in the case of Canadian Loans denominated in U.S. Dollars, the higher of (i) the
Federal Funds Rate plus 1/2 of 1% and (ii) the rate of interest in effect for
such day as determined by the Canadian Administrative Agent as the its reference
rate for Dollar denominated loans in Canada and (c) in the case of Canadian
Loans denominated in Canadian Dollars, the Canadian Prime Rate. The Base Rate is
not necessarily the lowest rate charged by the U.S. Administrative Agent or the
Canadian Administrative Agent to their customers. Any change in the Base Rate
shall take effect at the opening of business on the day such change is
effective.
"BASE RATE LOAN" means a Loan that bears interest based on the
Base Rate.
"BORROWER PARTIES" means the collective reference to the U.S.
Borrower and its Restricted Subsidiaries, and "BORROWER PARTY" means any one of
them.
"BORROWERS" means the U.S. Borrower and each Canadian
Borrower.
"BORROWING" means a Revolving Credit Borrowing, a Swing Line
Borrowing or a Term Borrowing, as the context may require.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close under the Laws of,
or are in fact closed in, relative to matters with respect to the U.S. Facility,
the state where the U.S. Administrative Agent's Office is located or relative to
matters with respect to the Canadian Facility, the jurisdiction where the
Canadian Administrative Agent's principal Canadian lending Affiliate is located,
and, if such day relates to any Eurodollar Rate Loan, is further limited to days
on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"CAM" means the mechanism for the allocation and exchange of
interests in the Loans, participations in Letters of Credit and collections
thereunder established pursuant to Section 10.20.
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"CAM EXCHANGE" means the exchange of the Lenders' interests
provided for in Section 10.20.
"CAM EXCHANGE DATE" means the first date after the Closing
Date on which there shall occur (a) any Event of Default under clause (f) or (g)
of Section 8.01 with respect to Holdings or a Borrower or (b) an acceleration of
Loans pursuant to Section 8.02(b).
"CAM PERCENTAGE" means, as to each Lender, a fraction,
expressed as a decimal, of which (a) the numerator shall be the sum, without
duplication, of (i) the aggregate Outstanding Amount of Term Loans, if any, owed
to such Lender, (ii) the Canadian Revolving Exposure, if any, of such Lender,
(iii) the U.S. Revolving Credit Exposure, if any, of such Lender and (iv) the
aggregate amount of any other Obligations otherwise owed to such Lender pursuant
to the Loan Documents, in each case immediately prior to the CAM Exchange Date,
and (b) the denominator shall be the sum of (i) the Outstanding Amount of Term
Loans owed to all the Lenders, (ii) the aggregate U.S. Revolving Credit Exposure
of all the Lenders, (iii) the aggregate Canadian Revolving Exposure of all
Lenders and (iv) the aggregate amount of any other Obligations otherwise owed to
any of the Lenders pursuant to the Loan Documents, in each case immediately
prior to the CAM Exchange Date.
"CANADIAN ADMINISTRATIVE AGENT" means UBS AG, Stamford Branch,
acting in its capacity as Canadian Administrative Agent under any of the Loan
Documents, or any successor in such capacity.
"CANADIAN ADMINISTRATIVE AGENT'S OFFICE" means the Canadian
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 10.02, or such other address or account as the Canadian Administrative
Agent may from time to time notify the Canadian Borrowers and the Canadian
Lenders.
"CANADIAN BA" means a depository xxxx as defined in the
Depository Bills and Notes Act (Canada) in Canadian Dollars that is in the form
of an order signed by the applicable Canadian Borrower and accepted by a
Canadian Lender pursuant to this Agreement or, for Canadian Lenders not
participating in clearing services contemplated in that Act, a draft or xxxx of
exchange in Canadian Dollars that is drawn by the applicable Canadian Borrower
and accepted by a Canadian Lender pursuant to this Agreement. Orders that become
depository bills, drafts and bills of exchange are sometimes collectively
referred to in this Agreement as "drafts." Canadian BAs shall have a term
contemplated by the definition of Interest Period, shall be issued and payable
only in Canada and shall have a face amount of an integral multiple of
Cdn$100,000. In addition, to the extent the context shall require, each
Acceptance Note shall be deemed to be a Canadian BA.
"CANADIAN BA RATE" means, with respect to any Interest Period
for any Canadian BA, the discount rate per annum, calculated on the basis of a
year of 365 days, equal to (a) in the case of any Canadian Lender that is listed
on Schedule I of the Bank Act (Canada), (i) the average rate per annum (rounded
upward if necessary to the nearest 1/100th of 1%) for Canadian Dollar bankers'
acceptances having such Interest Period that appears on the Reuters Screen CDOR
Page (or any successor page) as of 11:00 a.m., Toronto time, on the first day of
such term as determined by the Canadian Administrative Agent, or (ii) if such
rate is not available at such
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time, the average discount rate (rounded upward if necessary to the nearest
1/100th of 1%) for bankers' acceptances (accepted by Canadian chartered banks
agreed to by the Canadian Administrative Agent and the Canadian Borrowers)
having such Interest Period as calculated by the Canadian Administrative Agent
in accordance with normal market practice on such day or (b) in the case of all
Canadian Lenders other than those listed on Schedule I of the Bank Act (Canada),
the applicable rate set forth in clause (a) above plus 0.10%.
"CANADIAN BA RATE LOAN" means a Canadian Loan made to a
Canadian Borrower by way of a Canadian BA or Canadian BAs on the terms set out
herein.
"CANADIAN BA STAMPING FEE" means, with respect to Canadian
Loans maintained as Canadian BAs, the applicable percentage set forth under the
column entitled "Applicable Canadian BA Stamping Fee" with respect thereto
within the definition of "Applicable Rate" set forth above.
"CANADIAN BORROWER" means each of Broan-Nutone Canada Inc., an
Ontario corporation, and Ventrol Air Handling Systems Inc., a Canadian
corporation, and each other Subsidiary of the U.S. Borrower formed under the
laws of Canada or any province thereof that becomes a Canadian Borrower pursuant
to Section 2.17.
"CANADIAN BORROWER HYPOTHEC" has the meaning specified in
Section 9.01(d).
"CANADIAN BORROWING" means a borrowing consisting of
simultaneous Canadian Loans of the same Type and denominated in the same
currency.
"CANADIAN COLLATERAL" means all assets and property of any
Canadian Loan Party and interests therein upon which a Lien is granted to the
Canadian Administrative Agent pursuant to any Loan Document that are or are
required under the terms of the Loan Documents to be subject to Liens in favor
of the Canadian Administrative Agent for the benefit of the Canadian Secured
Parties.
"CANADIAN COMMITMENT FEE" has the meaning specified in Section
2.09(a).
"CANADIAN CREDIT COMMITMENTS" means, as to each Canadian
Lender, its obligation to (a) make Canadian Loans to the Canadian Borrowers
pursuant to Section 2.01(b), (b) purchase participations in Canadian L/C
Obligations and (c) purchase participations in Canadian Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule 2.01 under the caption
"Canadian Credit Commitment" or in the Assignment and Assumption Agreement
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted in accordance with this Agreement. The aggregate Canadian
Credit Commitments of all Canadian Lenders on the Closing Date shall be
$10,000,000.
"CANADIAN CUSTODIAN" has the meaning specified in Section
9.01(d).
"CANADIAN DOLLAR" and "CDN$" each mean the lawful money of
Canada.
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"CANADIAN EXISTING LETTERS OF CREDIT" means the Letters of
Credit previously issued for the account of the U.S. Borrower described on
Schedule 1.01(b) under the heading "Existing Letters of Credit under the
Canadian Facility".
"CANADIAN EXPOSURE" means, with respect to any Canadian Lender
at any time, the Outstanding Amount of Canadian Loans of such Lender plus such
Lender's Pro Rata Share of the Outstanding Amount of L/C Obligations with
respect to Canadian Letters of Credit plus such Lender's Pro Rata Share of the
Outstanding Amount of Canadian Swing Line Loans.
"CANADIAN FACILITY" means all Canadian Credit Commitments of
Canadian Lenders.
"CANADIAN FONDE DE POUVOIR" has the meaning specified in
Section 9.01(d).
"CANADIAN GUARANTOR" means the U.S. Borrower, each Canadian
Borrower and each Canadian Subsidiary which has executed and delivered to the
Canadian Administrative Agent the Canadian Guaranty (or a supplement thereto).
"CANADIAN GUARANTY" means the guaranties executed and
delivered by the Canadian Guarantors pursuant to this Agreement, substantially
in the forms attached as Exhibit F-3 hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"CANADIAN L/C ISSUER" means Bank of America, N.A. (Canada
Branch), in its capacity as issuer of Canadian Letters of Credit hereunder, or
any successor issuer of Canadian Letters of Credit hereunder and solely with
respect to the Canadian Existing Letters of Credit (and any amendment, renewal
or extension thereof in accordance with this Agreement), Fleet National Bank.
"CANADIAN LENDER" is defined in the preamble.
"CANADIAN LETTER OF CREDIT" means a Letter of Credit issued
under the Canadian Facility.
"CANADIAN LOAN" is defined in Section 2.01(b).
"CANADIAN LOAN PARTY" means each Canadian Borrower and each
Canadian Subsidiary which is a Canadian Guarantor.
"CANADIAN NOTE" means a promissory note of the Canadian
Borrowers payable to any Canadian Lender, in the form of Exhibit C-3 hereto (as
such promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of the Canadian Borrowers to such
Canadian Lender resulting from outstanding Canadian Loans, and also means all
other promissory notes accepted from time to time in substitution therefor or
renewal thereof.
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"CANADIAN OBLIGATIONS" means all advances to, and debts,
liabilities, obligations, covenants and duties of, any Canadian Loan Party
arising under any Loan Document or otherwise with respect to any Canadian Loan,
Canadian Swing Line Loan or Canadian Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Canadian Loan Party of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding. Without limiting the generality of the foregoing, the
Canadian Obligations include (a) the obligation to pay principal, interest,
charges, expenses, fees, Attorney Costs, indemnities and other amounts payable
by any Canadian Loan Party under any Loan Document and (b) the obligation of any
Canadian Loan Party to reimburse any amount in respect of any of the foregoing
that any Canadian Secured Party, in its sole discretion, may elect to pay or
advance on behalf of such Canadian Loan Party in accordance with the terms of
the Loan Documents.
"CANADIAN PERSON" means a Person that is not a non-resident of
Canada for purposes of Part XIII of the Income Tax Act (Canada) (or any
successor provision thereto) in respect of the relevant amount paid or credited
to it under the relevant Loan Document.
"CANADIAN PRIME RATE" means on any date with respect to
Canadian Prime Rate Loans, a fluctuating rate of interest per annum (rounded
upward, if necessary, to the next highest 1/100 of 1%) equal to the higher of:
(a) the rate of interest per annum determined by the Canadian
Administrative Agent as its reference rate in effect on such day for
determining interest rates for Canadian Dollar denominated commercial
loans in Canada; and
(b) the Canadian BA Rate most recently determined by the
Canadian Administrative Agent for 30-days bankers' acceptances plus 3/4
of 1%.
"CANADIAN PRIME RATE LOAN" means a Canadian Loan bearing
interest at a fluctuating rate determined by reference to the Canadian Prime
Rate.
"CANADIAN SECURED PARTIES" means, collectively, the Canadian
Administrative Agent, the Canadian Swing Line Lender, the Canadian L/C Issuer,
the Canadian Lenders, the Supplemental Canadian Administrative Agent and each
co-agent or sub-agent appointed by the Canadian Administrative Agent from time
to time pursuant to Section 9.01(c).
"CANADIAN SECURITY AGREEMENT" means, collectively, each
security agreement, hypothec and/or bond executed and delivered by a Responsible
Officer of any Canadian Loan Party pursuant to this Agreement as amended,
supplemented, amended and restated or otherwise modified from time to time.
"CANADIAN SUBSIDIARY" means each Subsidiary of the U.S.
Borrower organized under the laws of Canada or any jurisdiction thereof.
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"CANADIAN SUPPLEMENTAL ADMINISTRATIVE AGENT" has the meaning
specified in Section 9.13(a).
"CANADIAN SWING LINE BORROWING" means a borrowing of a
Canadian Swing Line Loan pursuant to Section 2.04.
"CANADIAN SWING LINE LENDER" means UBS AG Canada Branch in its
capacity as provider of Canadian Swing Line Loans, or any successor swing line
lender hereunder.
"CANADIAN SWING LINE LOAN" has the meaning specified in
Section 2.04(a)(ii).
"CANADIAN SWING LINE SUBLIMIT" means an amount equal to the
lesser of (a) $2,500,000 and (b) the Canadian Credit Commitments. The Canadian
Swing Line Sublimit is part of, and not in addition to, the Canadian Credit
Commitments.
"CAPITAL EXPENDITURES" means, as of any date for the
applicable period then ended, all capital expenditures of the Borrower Parties
on a consolidated basis for such period, as determined in accordance with GAAP,
to the extent reflected on a statement of cash flows of the U.S. Borrower;
provided, however, that Capital Expenditures shall not include any such
expenditures which constitute (a) a Permitted Acquisition, (b) capital
expenditures relating to the construction or acquisition of any property which
has been transferred to a Person that is not a Borrower Party pursuant to a
sale-leaseback transaction permitted under Section 7.05(f), (c) to the extent
permitted by this Agreement, a reinvestment of the Net Cash Proceeds of any
Disposition in accordance with Section 2.05(b)(ii) (other than any Dispositions
under Sections 7.05(b), (g), (h), (i) and (k)) or Casualty Event, (d) Specified
Issuance Proceeds Not Otherwise Applied, (e) the purchase price of equipment
purchased substantially contemporaneously with the trade-in or sale of used or
surplus existing equipment to the extent that the gross amount of such purchase
price is reduced by the credit granted to the seller of such equipment (or for
the net proceeds of such sale) for the equipment being traded in or sold at such
time, or (f) capitalized interest relating to the construction of any fixed
assets.
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"CASH COLLATERAL" has the meaning specified in the definition
of Cash Collateralize.
"CASH COLLATERAL ACCOUNT" means a blocked deposit account at
the U.S. Administrative Agent's Office or Canadian Administrative Agent's
Office, as applicable (or another commercial bank selected in compliance with
Section 9.09), in the name of such Administrative Agent and under the sole
dominion and control of such Administrative Agent, and otherwise established in
a manner satisfactory to such Administrative Agent.
"CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the applicable Administrative Agent, for the benefit of the
applicable L/C Issuers and Lenders, as collateral for the L/C Obligations of a
Borrower or unmatured Canadian BA's in accordance with Section 2.03(g) or
Section 8.02, cash or deposit account balances ("CASH COLLATERAL") pursuant
-10-
to documentation in form and substance reasonably satisfactory to the applicable
Administrative Agent (and, in the case of a Cash Collateralization of L/C
Obligations, the applicable L/C Issuer) (which documents are hereby consented to
by the Lenders), and derivatives of such term have corresponding meanings.
"CASH EQUIVALENTS" means any of the following types of
Investments, to the extent owned by the U.S. Borrower or any of its Restricted
Subsidiaries:
(a) readily marketable obligations issued or directly and
fully guaranteed or insured by the United States, Canada or any member
nation of the European Union or any agency or instrumentality thereof
having maturities of not more than three hundred sixty (360) days from
the date of acquisition thereof; provided that the full faith and
credit of the United States is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or
bankers' acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the laws of the United States, any state
thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the
United States, any state thereof or the District of Columbia and is a
member of the Federal Reserve System, and (ii) has combined capital and
surplus of at least $500,000,000 (any such bank being an "APPROVED
DOMESTIC BANK"), in each case with maturities of not more than one year
from the date of acquisition thereof;
(c) commercial paper and variable or fixed rate notes issued
by an Approved Domestic Bank (or by the parent company thereof) or any
variable or fixed rate note issued by, or guaranteed by a domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Xxxxx'x, in each case with
maturities of not more than one year from the date of acquisition
thereof;
(d) repurchase agreements entered into by any Person with a
bank or trust company (including any of the Lenders) or recognized
securities dealer having capital and surplus in excess of $500,000,000
for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date
of purchase thereof, a fair market value of at least 100% of the amount
of the repurchase obligations;
(e) readily marketable direct obligations issued by any state
of the United States or any political subdivision thereof having one of
the two highest rating categories obtainable from either S&P or Xxxxx'x
with maturities of not more than twelve (12) months from the date of
acquisition thereof;
(f) Investments, classified in accordance with GAAP as current
assets of the U.S. Borrower or any of its Subsidiaries, in money market
investment programs registered under the Investment Company Act of
1940, which are administered by financial institutions having capital
of at least $500,000,000, and the portfolios of which are limited such
that substantially all of such investments are of the character,
quality and maturity described in clauses (a), (b), (c), (d) and (e) of
this definition; and
-11-
(g) instruments equivalent to those referred to in clauses (a)
through (f) above denominated in Canadian Dollars, Euros or any other
foreign currency, which are comparable in credit quality and tenor to
those referred to above and customarily used by corporations for short
term cash management purposes in any jurisdiction outside the United
States to the extent reasonably required in connection with any
business conducted by any Subsidiary organized in such jurisdiction.
"CASH MANAGEMENT BANK" means any party to a Cash Management
Services Agreement with any U.S. Loan Party which party is or was an Arranger or
a Lender or an Affiliate of an Arranger or a Lender at the time such Cash
Management Services Agreement was entered into.
"CASH MANAGEMENT OBLIGATIONS" means obligations owed by any
U.S. Loan Party to any Cash Management Bank under any Cash Management Services
Agreement.
"CASH MANAGEMENT SERVICES AGREEMENT" means any agreement to
provide cash management services, including treasury, depository, overdraft,
credit or debit card, electronic funds transfer and other cash management
arrangements.
"CASUALTY EVENT" means any event that gives rise to the
receipt by Holdings, the U.S. Borrower or any of its Restricted Subsidiaries of
any insurance proceeds or condemnation awards in respect of any equipment, fixed
assets or real property (including any improvements thereon) to replace or
repair such equipment, fixed assets or real property.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CES HYPOTHEC" has the meaning specified in Section 9.01(e).
"CHANGE OF CONTROL" means the earlier to occur of:
(a) the Equity Investors ceasing to have the power, directly
or indirectly, to vote or direct the voting of securities having a
majority of the ordinary voting power for the election of directors of
Holdings; provided that the occurrence of the foregoing event shall not
be deemed a Change of Control if
(i) at any time prior to the consummation of a
Qualifying IPO, (A) the Equity Investors otherwise have the
right to designate (and do so designate) a majority of the
board of directors of Holdings or (B) the Equity Investors own
beneficially an amount of common stock of Holdings equal to
more than fifty percent (50%) of the amount of common stock of
Holdings owned by the Equity Investors of record and
beneficially as of the Closing Date and such ownership by the
Equity Investors represents the largest single block of voting
securities of Holdings held by any "person" or "group" (as
such terms are used in
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Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended, but excluding any employee benefit plan of
such person and its subsidiaries, and any person or entity
acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), or
(ii) at any time after the consummation of a
Qualifying IPO, (A) no "person" or "group" (as defined above),
excluding the Equity Investors, shall become the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under such
Act), directly or indirectly, of more than the greater of (x)
thirty-five percent (35%) of the outstanding voting stock of
Holdings or (y) the percentage of the then outstanding voting
stock of Holdings owned beneficially by the Equity Investors,
(B) during any period of twelve (12) consecutive months, the
board of directors of Holdings shall consist of a majority of
the Continuing Directors or (C) the Equity Investors have the
power, directly or indirectly, to vote or direct the voting of
at least thirty percent (30%) of the voting of securities
having a majority of the ordinary voting power for the
election of directors of Holdings; or
(b) any "Change of Control" (or any comparable term) in any
document pertaining to any Junior Financing with an aggregate
outstanding principal amount in excess of the Threshold Amount; or
(c) the U.S. Borrower shall cease to be a wholly owned direct
Subsidiary of Holdings; or
(d) except as permitted by Section 7.04, any Canadian Borrower
shall cease to be a wholly owned direct Subsidiary of the U.S.
Borrower.
"CLOSING DATE" means the first date all the conditions
precedent in Section 4.01 are satisfied or waived in accordance with Section
4.01.
"CO-DOCUMENTATION AGENTS" means Bank of America, N.A. and Bear
Xxxxxxx Corporate Lending Inc., as Co-Documentation Agents under the Loan
Documents.
"CODE" means the U.S. Internal Revenue Code of 1986.
"COLLATERAL" means the U.S. Collateral and the Canadian
Collateral.
"COLLATERAL DOCUMENTS" means, collectively, the U.S. Security
Agreement, each Canadian Security Agreement, the Perfection Certificate, the
Intellectual Property Security Agreement, the Mortgages, each of the mortgages,
collateral assignments, Security Agreement Supplements, IP Security Agreement
Supplements, security agreements, pledge agreements or other similar agreements
delivered to the applicable Administrative Agent and the Lenders pursuant to
Section 6.12, and each of the other agreements, instruments or documents that
creates or purports to create a Lien in favor of either Administrative Agent for
the benefit of any of the Secured Parties.
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"COMMITMENT" means a U.S. Commitment or a Canadian Credit
Commitment, as the context may require.
"COMMITMENT FEE" has the meaning specified in Section 2.09(a).
"COMMITTED LOAN NOTICE" means a notice of (a) a Term
Borrowing, (b) a U.S. Revolving Credit Borrowing, (c) a Canadian Borrowing, (d)
a conversion of Loans from one Type to the other, or (e) a continuation of
Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall
be substantially in the form of Exhibit A-1, in the case of a U.S. Loan, and
Exhibit A-2, in the case of a Canadian Loan.
"COMPANY" has the meaning specified in the introductory
paragraph to this Agreement.
"COMPENSATION PERIOD" has the meaning specified in Section
2.12(c)(ii).
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the form of Exhibit D or in such other form as the U.S. Borrower and the U.S.
Administrative Agent shall reasonably agree.
"CONSOLIDATED ASSETS" means the total consolidated assets of
the U.S. Borrower and its Restricted Subsidiaries, as determined in accordance
with GAAP.
"CONSOLIDATED CASH TAXES" means, as of any date for the
applicable period ending on such date with respect to the U.S. Borrower and its
Restricted Subsidiaries on a consolidated basis, the aggregate of all income,
franchise and similar taxes, as determined in accordance with GAAP, to the
extent the same are payable in cash with respect to such period.
"CONSOLIDATED CURRENT ASSETS" means, with respect to the U.S.
Borrower and its Restricted Subsidiaries as of any date of determination, the
total assets of the U.S. Borrower and its Restricted Subsidiaries which should
properly be classified as current assets on a consolidated balance sheet in
accordance with GAAP other than any cash or cash equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, with respect to the
U.S. Borrower and its Restricted Subsidiaries as of any date of determination,
the total liabilities of the U.S. Borrower and its Restricted Subsidiaries which
should properly be classified as current liabilities (other than the current
portion of any long term indebtedness) on a consolidated balance sheet in
accordance with GAAP.
"CONSOLIDATED EBITDA" means, as of any date for the applicable
period ending on such date with respect to any Person and its Restricted
Subsidiaries on a consolidated basis, the sum of
(a) Consolidated Net Income, plus
(b) an amount which, in the determination of Consolidated
Net Income for such period, has been deducted for, without duplication,
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(i) total interest expense,
(ii) income, franchise and similar taxes and any tax
distributions permitted to be made pursuant to Sections
7.06(f)(i) and (iii),
(iii) depreciation and amortization expense,
(iv) letter of credit fees,
(v) non-cash expenses resulting from any employee
benefit or management compensation plan or the grant of stock
and stock options to employees of Holdings, the U.S. Borrower
or any of its Restricted Subsidiaries pursuant to a written
plan or agreement or the treatment of such options under
variable plan accounting,
(vi) non-cash amortization of financing costs of such
Person and its Restricted Subsidiaries,
(vii) cash expenses incurred in connection with the
Transaction or, to the extent permitted hereunder, any
Investment permitted under Section 7.02, Equity Issuance or
Debt Issuance (in each case, whether or not consummated),
(viii) to the extent actually reimbursed, expenses
incurred to the extent covered by indemnification provisions
in any agreement in connection with a Permitted Acquisition,
(ix) to the extent covered by insurance proceeds
received by the Loan Parties, expenses with respect to
liability or casualty events, business interruption or product
recalls,
(x) management fees permitted under Section 7.08(d),
(xi) any non-cash purchase accounting adjustment and
any step-ups with respect to revaluing assets and liabilities
in connection with the Transaction or any Investment permitted
under Section 7.02,
(xii) non-cash losses from Joint Ventures and
non-cash minority interest reductions,
(xiii) reasonable fees and expenses in connection
with the exchange of the Senior Subordinated Notes for
registered notes with identical terms as contemplated by the
Senior Subordinated Notes Indenture or exchanges or
refinancings permitted by Section 7.14,
(xiv) non-cash charges (other than any non-cash
charge that results in an accrual of a reserve for cash
charges in any future period),
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(xv) losses from discontinued operations not to
exceed $2,000,000 during any period of four (4) consecutive
fiscal quarters,
(xvi) other expenses of such Person and its
Subsidiaries reducing Consolidated Net Income which do not
represent a cash item in such period or any future period, and
(xvii) with respect to any Event of Default of any
covenant set forth in Section 7.11, the Net Cash Proceeds of
any Permitted Equity Issuance to the Equity Investors solely
to the extent that such Net Cash Proceeds (A) are actually
received by the U.S. Borrower (through capital contribution of
such Net Cash Proceeds by Holdings to the U.S. Borrower) no
later than fifteen (15) Business Days after the delivery of a
Notice of Intent to Cure, (B) do not exceed the aggregate
amount necessary to cure such Event of Default under Section
7.11 for any applicable period and (C) were Not Otherwise
Applied (any such issuance, a "PERMITTED CURE ISSUANCE");
provided that the provisions of this clause (xvii) may be
relied on for purposes of determining Consolidated EBITDA no
more than two (2) times in any twelve-month period; it being
understood that this clause (xvii) may not be relied on for
purposes of calculating any financial ratios other than as
applicable to Section 7.11; minus
(c) all non-cash items increasing Consolidated Net Income
during such period (other than items which represent the reversal of
any accrual of, or cash reserve for, anticipated cash charges in any
prior period) for such period;
provided, that to the extent the receipt of any Net Cash Proceeds of any
Permitted Cure Issuance is an effective addition to Consolidated EBITDA as
contemplated by, and in accordance with, the provisions of clause (b)(xvii)
above and, as a result thereof, any Event of Default of the covenants set forth
in Section 7.11 shall have been cured for any applicable period, such cure shall
be deemed to be effective as of the last day of such applicable period and such
addition to Consolidated EBITDA shall apply to any period of four (4)
consecutive fiscal quarters that includes the fiscal quarter in respect of which
such addition was made. Notwithstanding anything to the contrary, Consolidated
EBITDA shall be deemed to be $59,400,000 for the fiscal quarter ended April 3,
2004 and $66,300,000 for the fiscal quarter ended July 3, 2004 and Consolidated
EBITDA for the fiscal quarter ending October 4, 2004 as determined above shall
be increased by $3,041,000 in respect of restructuring costs relating to Nordyne
Inc., personnel cost reductions and former financial sponsor fees allocable to
such fiscal quarter, in each case without duplication of any addbacks made for
such fiscal quarter pursuant to the definition of Consolidated EBITDA.
"CONSOLIDATED FUNDED INDEBTEDNESS" means, with respect to any
Person and its Restricted Subsidiaries on a consolidated basis, without
duplication,
(a) all obligations of such Person for borrowed money,
(b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments,
-16-
(c) all obligations of such Person under conditional sale or
other title retention agreements relating to property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of
business),
(d) all obligations of such Person issued or assumed as the
deferred purchase price of property or services purchased by such
Person (other than accrued expenses and trade debt incurred in the
ordinary course of business) which would appear as liabilities on a
balance sheet of such Person,
(e) all Consolidated Funded Indebtedness of others secured by
(or for which the holder of such Consolidated Funded Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien
on, or payable out of the proceeds of production from, property owned
or acquired by such Person, whether or not the obligations secured
thereby have been assumed,
(f) all Guarantees of such Person with respect to Consolidated
Funded Indebtedness of another Person,
(g) the implied principal component of all obligations of such
Person under Capitalized Leases,
(h) the amount of all standby letters of credit issued or
bankers' acceptances facilities created for the account of such Person
required to be reflected as liabilities of such Person on a balance
sheet prepared in accordance with GAAP,
(i) all Disqualified Equity Interests issued by such Person,
unless the holder thereof is a U.S. Loan Party (or, in the case of any
Disqualified Equity Interests issued by a Canadian Loan Party, any Loan
Party) or, if the issuer thereof is a Restricted Subsidiary which is
not a Loan Party, any other Restricted Subsidiary,
(j) the principal portion of all obligations of such Person
under Synthetic Lease Obligations, and
(k) the Consolidated Funded Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner
or a joint venturer to the extent such Consolidated Funded Indebtedness
is recourse to such Person.
Notwithstanding any other provision of this Agreement to the contrary, (i) the
term "Consolidated Funded Indebtedness" shall not be deemed to include (x) any
post-closing payment adjustments or earn-out, non-competition or consulting
obligations existing on the Closing Date or incurred in compliance with Section
7.03 until such obligations become a liability on the balance sheet of the
applicable Person or (y) Guarantees of Capitalized Leases except to the extent
required to be reflected on a consolidated balance sheet of the U.S. Borrower
and its Subsidiaries in accordance with Financial Accounting Standards Board
Interpretation No. 45 and (ii) the amount of Consolidated Funded Indebtedness
for which recourse is limited either
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to a specified amount or to an identified asset of such Person shall be deemed
to be equal to such specified amount (or, if less, the fair market value of such
identified asset).
"CONSOLIDATED INTEREST CHARGES" means, as of any date for the
applicable period ending on such date with respect to any Person and its
Subsidiaries on a consolidated basis, the excess of (A) interest expense
(including the amortization of debt discount and premium, the interest component
under Capitalized Leases and the implied interest component under Synthetic
Lease Obligations, but excluding, to the extent included in interest expense,
(i) fees and expenses associated with the consummation of the Transaction, (ii)
annual agency fees paid to the Administrative Agent, (iii) costs associated with
obtaining Swap Contracts and (iv) fees and expenses associated with any
Investment permitted under Section 7.02, Equity Issuance or Debt Issuance
(whether or not consummated)), as determined in accordance with GAAP, to the
extent the same are payable in cash with respect to such period over (B)
interest income, as determined in accordance with GAAP, for such period, to the
extent received in cash with respect to such period.
"CONSOLIDATED NET INCOME" shall mean, with respect to any
Person and its Subsidiaries for any period, the consolidated net income (or
loss) of such Person and its Subsidiaries determined on a consolidated basis in
accordance with GAAP; provided that:
(a) the net income (or loss) of any Person (other than a
Restricted Subsidiary of the U.S. Borrower) in which any Person other
than the U.S. Borrower and its Restricted Subsidiaries has an ownership
interest, shall be excluded, provided, that, to the extent not
previously included, Consolidated Net Income shall be increased by the
amount of dividends or distributions paid in cash to the specified
Person or a Restricted Subsidiary;
(b) the net income of any Subsidiary of the U.S. Borrower
during such period shall be excluded to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary of
that income is not permitted by operation of the terms of its
Organization Documents or any agreement, instrument, judgment, decree,
order, statute, rule or regulation applicable to that Subsidiary during
such period, unless such restriction with respect to the payment of
dividends or similar distributions has been legally waived; provided
that Consolidated Net Income of such Person shall be increased by the
amount of dividends or distributions or other payments that are
actually paid in cash (or to the extent converted into cash) to such
Person or a Restricted Subsidiary;
(c) any gain (or loss), together with any related provisions
for taxes on any such gain (or the tax effect of any such loss),
realized during such period by the U.S. Borrower or any of its
Subsidiaries upon any Disposition (other than any Dispositions in the
ordinary course of business) by the U.S. Borrower or any of its
Subsidiaries and any gain (or loss) on extinguishment of any
Indebtedness of the U.S. Borrower or any of its Subsidiaries shall be
excluded;
(d) unrealized gains and losses with respect to Swap Contracts
for such period shall be excluded;
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(e) the cumulative effect of a change in accounting principles
shall be excluded;
(f) non-cash charges relating to employee benefit or other
management compensation plans of Holdings or Investors LLC (to the
extent such non-cash charges relate to plans of Investors LLC for the
benefit of members of the Board of Directors of the U.S. Borrower (in
their capacity as such) or employees of the U.S. Borrower and its
Restricted Subsidiaries), the U.S. Borrower or any of its Restricted
Subsidiaries or any non-cash compensation charge arising from any grant
of stock, stock options or other equity-based awards of Holdings or
Investors LLC (to the extent such non-cash charges relate to plans of
Holdings or Investors LLC for the benefit of members of the Board of
Directors of the U.S. Borrower (in their capacity as such) or employees
of the U.S. Borrower and its Restricted Subsidiaries), the U.S.
Borrower or any of its Restricted Subsidiaries (excluding in each case
any non-cash charge to the extent that it represents an accrual of or
reserve for cash expenses of the U.S. Borrower or any Restricted
Subsidiary in any future period or amortization of a prepaid cash
expense incurred in a prior period) in each case, to the extent that
such non-cash charges are deducted in computing such Consolidated Net
Income shall be excluded;
(g) any non-cash goodwill or other impairment charges
resulting from the application of Statement of Financial Accounting
Standards No. 142 or No. 144, and non-cash charges relating to the
amortization of intangibles resulting from the application of Statement
of Financial Accounting Standards No. 141, shall be excluded;
(h) any increase in cost of sales as a result of the step-up
in inventory valuation arising from applying the purchase method of
accounting in accordance with GAAP in connection with the Transaction
or any acquisition consummated after the date of this Agreement, net of
taxes, shall be excluded;
(i) xxxx-to-market of Indebtedness denominated in foreign
currencies resulting from the application of Statement of Financial
Accounting Standards No. 52 shall be excluded;
(j) non-recurring cash charges in an aggregate amount not to
exceed $5,000,000 during any four (4) consecutive fiscal quarter period
shall be excluded;
(k) any gains, losses or charges of the U.S. Borrower and its
Subsidiaries incurred in connection with the Transactions, including
severance, bonus, change of control payments and other compensation
charges arising therefrom together with any related provision for taxes
on such gain, loss or charge, shall be excluded; and
(l) any extraordinary gain (or extraordinary loss), together
with any related provision for taxes on any such gain (or the tax
effect of any such loss), recorded or recognized by the U.S. Borrower
or any of its Subsidiaries during such period shall be excluded.
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"CONSOLIDATED PARTIES" means the collective reference to
Holdings, the U.S. Borrower and its Restricted Subsidiaries, and "CONSOLIDATED
PARTY" means any one of them.
"CONSOLIDATED REVENUES" shall mean the consolidated revenues
of the U.S. Borrower and its Restricted Subsidiaries, as determined in
accordance with GAAP.
"CONSOLIDATED SCHEDULED FUNDED DEBT PAYMENTS" means, as of any
date for the applicable period ending on such date with respect to the Borrower
Parties on a consolidated basis, the sum of all scheduled payments of principal
on Consolidated Funded Indebtedness during such period (including the implied
principal component of payments due on Capitalized Leases during such period and
Synthetic Lease Obligations, but excluding all voluntary prepayments or
mandatory prepayments required pursuant to Section 2.05, in each case as applied
pursuant to Section 2.05), as determined in accordance with GAAP.
"CONTINUING DIRECTORS" shall mean the directors of Holdings on
the Closing Date, after giving effect to the Acquisition and the other
transactions contemplated hereby, and each other director, if, in each case,
such other director's nomination for election to the board of directors of
Holdings is recommended by a majority of the then Continuing Directors or such
other director receives the vote of the Equity Investors in his or her election
by the stockholders of Holdings.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or other undertaking to which such Person is a party or by which it or any of
its property is bound.
"CONTROL" has the meaning specified in the definition of
"Affiliate".
"COVENANT TO PAY PARTY" has the meaning specified in Section
10.21.
"CREDIT EXTENSION" means each of the following: (a) a
Borrowing (including the acceptance of a Canadian BA) and (b) an L/C Credit
Extension.
"DEBT ISSUANCE" means the issuance by any Person and its
Subsidiaries of any Indebtedness for borrowed money.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an
Event of Default or that, with the giving of any notice, the passage of time, or
both, would be an Event of Default.
"DEFAULT RATE" means an interest rate equal to (a) the Base
Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus
(c) 2.0% per annum; provided, however, that with respect to a Eurodollar Rate
Loan, if greater, the Default Rate shall be an
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interest rate equal to the interest rate (including any Applicable Rate)
otherwise applicable to such Loan plus 2.0% per annum, in each case, to the
fullest extent permitted by applicable Laws.
"DEFAULTING LENDER" means any Lender that (a) has failed to
fund any portion of the Term Loans, Revolving Credit Loans, participations in
L/C Obligations or participations in Swing Line Loans required to be funded by
it hereunder within one (1) Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the applicable Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within one (1) Business Day of the date when due, unless the subject of a good
faith dispute, or (c) has been deemed insolvent or become the subject of a
bankruptcy or insolvency proceeding.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license,
lease or other disposition (including any sale and leaseback transaction and any
sale or issuance of Equity Interests of a Subsidiary of the U.S. Borrower) of
any property by any Person, including any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith; provided, however, that "Disposition"
and "Dispose" shall not be deemed to include any issuance by Holdings of any of
its Equity Interests to another Person.
"DISQUALIFIED EQUITY INTERESTS" means any Equity Interest
which, by its terms (or by the terms of any security or other Equity Interests
into which it is convertible or for which it is exchangeable), or upon the
happening of any event or condition (a) matures or is mandatorily redeemable,
pursuant to a sinking fund obligations or otherwise, (b) is redeemable at the
option of the holder thereof, in whole or in part, (c) provides for the
scheduled payments of dividends in cash, or (d) is or becomes convertible into
or exchangeable for Indebtedness or any other Equity Interests that would
constitute Disqualified Equity Interests, in each case, prior to the date that
is ninety one (91) days after the Maturity Date of the Term Facility; provided
that if such Equity Interest is issued to any employee or to any plan for the
benefit of employees of the U.S. Borrower or any of its Subsidiaries or by any
such plan to such employees, such Equity Interest shall not constitute a
Disqualified Equity Interest solely because it may be required to be repurchased
by the U.S. Borrower or such Subsidiary in order to satisfy applicable statutory
or regulatory obligations; and provided further that any Equity Interest that
would constitute a Disqualified Equity Interest solely because the holders
thereof have the right to require the U.S. Borrower to repurchase such Equity
Interest upon the occurrence of a change of control or an asset sale shall not
constitute a Disqualified Equity Interest if the terms of such Equity Interest
provide that the U.S. Borrower may not repurchase or redeem any such Equity
Interest pursuant to such provisions prior to the repayment in full of the
Obligations.
"DOLLAR", "$" and "U.S. DOLLAR" mean the lawful money of the
United States.
"DOMESTIC OFFICE" means (a) relative to any U.S. Lender, the
office of such Lender designated as its "U.S. Domestic Office" on Schedule 2.01
hereto or in an Assignment and Assumption, or such other office within the
United States as may be designated from time to time by notice from such Lender
to the Agents and the Borrowers; and (b) relative to any Canadian Lender, the
office of such Lender designated as its "Canadian Domestic Office" on Schedule
2.01 hereto or in an Assignment and Assumption, or such other office within
Canada as
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may be designated from time to time by notice from such Lender to the Agents and
the Borrowers.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized
under the laws of the United States, any state thereof or the District of
Columbia and any other Subsidiary that is not a "controlled foreign corporation"
under Section 957 of the Code.
"DUTCH COLLATERAL" means all issued share capital of any
entity organized under the laws of The Netherlands, including, without
limitation, all shares in the issued share capital of Nortek Holding B.V., upon
which a Lien is granted to the U.S. Administrative Agent pursuant to any Loan
Document that are or are required under the terms of the Loan Documents to be
subject to Liens in favor of the U.S. Administrative Agent for the benefit of
the Secured Parties.
"EARLY PAYMENT AMOUNT" has the meaning given such term in
Section 7.06(d)(ii)(B).
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the applicable Administrative Agent, (ii) in the case of
any assignment of a Revolving Credit Commitment, the applicable L/C Issuer and
the applicable Swing Line Lender, and (iii) unless an Event of Default has
occurred and is continuing (and except in the case of an assignment to an
existing Lender or in the case of an assignment in connection with the initial
syndication of the Facilities to institutions included on the list previously
provided by the U.S. Administrative Agent to the U.S. Borrower), the U.S.
Borrower (each such approval not to be unreasonably withheld or delayed).
"ENVIRONMENTAL LAWS" means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, licenses, and the common law relating to pollution or the
protection of the environment (including ambient air, indoor air, surface
wastes, groundwater, land and subsurface strata) and natural resources including
those related to Release or threat of Release, or exposure to, or generation,
storage, treatment, transport, handling, distribution or disposal of Hazardous
Materials.
"ENVIRONMENTAL LIABILITY" means any liability or costs,
contingent or otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the U.S.
Borrower, any other Loan Party or any of their respective Subsidiaries directly
or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the Release or threatened Release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under any
Environmental Law.
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"EQUITY CONTRIBUTIONS" means, collectively, (a) (i) the
contribution by the Sponsor of an aggregate amount of cash not less than
$331,000,000 to Holdings, and (ii) the further contribution by Holdings of all
such contribution proceeds to the Company in order to consummate the Acquisition
and the Mergers and (b) immediately following the First Merger, the rollover by
the Management Shareholders of existing equity of the Target Company into
interests in a new deferred compensation plan of Holdings and Equity Interests
in Investors LLC.
"EQUITY INTERESTS" means, with respect to any Person, all of
the shares, interests, rights, participations or other equivalents (however
designated) of capital stock of (or other ownership or profit interests or units
in) such Person and all of the warrants, options or other rights for the
purchase, acquisition or exchange from such Person of any of the foregoing
(including through convertible securities).
"EQUITY INVESTORS" means the Sponsor, the Management
Shareholders and the other members of Investors LLC as of the Closing Date.
"EQUITY ISSUANCE" means any issuance for cash by any Person
and its Subsidiaries to any other Person of (a) its Equity Interests, (b) any of
its Equity Interests pursuant to the exercise of options or warrants, (c) any of
its Equity Interests pursuant to the conversion of any debt securities to equity
or (d) any options or warrants relating to its Equity Interests. A Disposition
shall not be deemed to be an Equity Issuance.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Loan Party 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 any Loan Party 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
cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is insolvent or in reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination under Sections
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
constitutes 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 for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan
Party or any ERISA Affiliate.
"EURODOLLAR RATE" shall mean, with respect to any Eurodollar
Rate Loan for any Interest Period, the rate per annum determined by the
applicable Administrative Agent to be the arithmetic mean (rounded upward, if
necessary, to the nearest 1/100th of 1%) of the offered rates
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for deposits in Dollars with a term comparable to such Interest Period that
appears on the Telerate British Bankers Assoc. Interest Settlement Rates Page
(as defined below) at approximately 11:00 a.m., London, England time, on the
second full Business Day preceding the first day of such Interest Period;
provided, however, that (i) if no comparable term for an Interest Period is
available, the Eurodollar Rate shall be determined using the weighted average of
the offered rates for the two terms most nearly corresponding to such Interest
Period and (ii) if there shall at any time no longer exist a Telerate British
Bankers Assoc. Interest Settlements Rate Page, "Eurodollar Rate" shall mean,
with respect to each day during each Interest Period pertaining to Eurodollar
Rate Loans constituting a single Borrowing, the rate per annum equal to the rate
at which such Administrative Agent is offered deposits in Dollars at
approximately 11:00 a.m., London, England time, two Business Days prior to the
first day of such Interest Period in the London interbank market for delivery on
the first day of such Interest Period for the number of days comprised therein
and in an amount comparable to the amount of such Borrowing to be outstanding
during such Interest Period. "TELERATE BRITISH BANKERS ASSOC. INTEREST
SETTLEMENT RATES PAGE" shall mean the display designated as Page 3750 on the
Telerate System Incorporated Service (or such other page as may replace such
page on such service for the purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London interbank deposit market).
"EURODOLLAR RATE LOAN" means a Loan that bears interest at a
rate based on the Eurodollar Rate. Canadian Loans made in Canadian Dollars may
not bear interest at the Eurodollar Rate.
"EVENT OF DEFAULT" has the meaning specified in Section 8.01.
"EXCESS CASH FLOW" means, with respect to any Excess Cash Flow
Period of the Borrower Parties on a consolidated basis, an amount equal to
Consolidated EBITDA:
(a) minus, without duplication, the following items for such
Excess Cash Flow Period:
(i) cash from operations used to make Capital
Expenditures,
(ii) total interest expense paid in cash,
(iii) Consolidated Cash Taxes, including cash
payments for federal, state and other income tax liabilities
incurred prior to the Closing Date,
(iv) Consolidated Scheduled Funded Debt Payments,
(v) Restricted Payments made by the Borrower Parties
permitted by Section 7.06(d) and (f),
(vi) voluntary prepayments of any Indebtedness (other
than the Obligations); provided that (1) such prepayments are
otherwise permitted hereunder and (2) if such Indebtedness
consists of a revolving line of credit, the
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commitments under such line of credit are permanently reduced
by the amount of such prepayment,
(vii) letter of credit fees,
(viii) proceeds received by the Borrower Parties from
insurance claims with respect to casualty events, business
interruption or product recalls which reimburse prior business
expenses,
(ix) cash payments made in satisfaction of
non-current liabilities (including the current portion
thereof),
(x) cash expenses incurred in connection with the
Transaction or, to the extent permitted hereunder, cash from
operations used to consummate any Investment permitted by
Section 7.02 (other than an Investment in the U.S. Borrower or
a Restricted Subsidiary), Equity Issuance or Debt Issuance
(whether or not consummated),
(xi) fees and expenses in connection with the
exchange of the Senior Subordinated Notes for registered notes
with identical terms as contemplated by the Senior
Subordinated Notes Indenture or exchanges or refinancings
permitted by Section 7.14,
(xii) cash indemnity payments received pursuant to
indemnification provisions in any agreement in connection with
a Permitted Acquisition (or in any similar agreement related
to any other Acquisition consummated prior to the Closing
Date),
(xiii) all non-recurring cash charges,
(xiv) cash expenses incurred in connection with
deferred compensation arrangements,
(xv) management fees permitted by Section 7.08(d),
(xvi) cash from operations used to consummate a
Permitted Acquisition,
(xvii) the Net Cash Proceeds of Permitted Cure
Issuances,
(xviii) extraordinary cash losses and cash losses
from Dispositions,
(xix) cash expenditures in respect of Swap Contracts,
(xx) cash losses from discontinued operations, and
(xxi) the amount, if any, by which Working Capital
increased during such Excess Cash Flow Period;
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(b) plus, without duplication, the following items for such
Excess Cash Flow Period:
(i) cash income in respect of Swap Contracts, and
(ii) the amount, if any, by which Working Capital
decreased during such Excess Cash Flow Period.
"EXCESS CASH FLOW PERIOD" means each fiscal year of the U.S.
Borrower.
"EXCLUDED CONSIDERATION" means, with respect to any Permitted
Acquisition, consideration consisting of (a) any Equity Interests (other than
Disqualified Equity Interests) of Holdings issued to the seller of the Equity
Interests, property or assets acquired in such Permitted Acquisition, (b) to the
extent not required at such time to prepay the Loans pursuant to Section
2.05(b), consideration consisting of the Net Cash Proceeds of (i) Specified
Issuance Proceeds Not Otherwise Applied, (ii) any Disposition by Holdings, the
U.S. Borrower or any of its Restricted Subsidiaries of the type described in
Sections 7.05(f), (l) and (m) Not Otherwise Applied or (iii) any Casualty Event
Not Otherwise Applied that occurs subsequent to the Closing Date and (c) 25% of
the amount of Excess Cash Flow for any fiscal year (commencing with the fiscal
year ending December 31, 2005).
"EXECUTIVE ORDER" has the meaning specified in Section
5.22(a).
"EXISTING INCREASED FACILITY LENDERS" has the meaning
specified in Section 2.06(f).
"EXISTING LETTERS OF CREDIT" means the Canadian Existing
Letters of Credit and the U.S. Existing Letters of Credit.
"EXISTING NOTES" means (i) the Senior Discount Notes, (ii) the
Floating Rate Notes and (iii) the Nortek Existing Senior Subordinated Notes.
"EXISTING NOTES INDENTURES" means (i) the Indenture, dated as
of November 24, 2003, as amended and supplemented from time to time, by and
among the Target Company and U.S. Bank National Association, pursuant to which
the Senior Discount Notes were issued, (ii) the Indenture, dated as of March 1,
2004, as amended and supplemented from time to time, by and among Nortek, Inc.
and U.S. Bank National Association, pursuant to which the Floating Rate Notes
were issued, and (iii) the Indenture, dated as of June 12, 2001, as amended and
supplemented from time to time, by and among Nortek, Inc. and U.S. Bank National
Association, as successor in interest to State Street Bank and Trust Company,
pursuant to which the Nortek Existing Senior Subordinated Notes were issued.
"EXISTING NOTES TENDER OFFER" means the offer by the Target
Company and Nortek, Inc. to purchase any and all of the Existing Notes and the
consent solicitation by the Company to certain amendments of the Existing Notes
Indentures, all as described in the Existing Notes Tender Offer Documents.
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"EXISTING NOTES TENDER OFFER DOCUMENTS" means (a) the Offer to
Purchase and Consent Solicitation Statement (the "OFFER TO PURCHASE"), dated
July 20, 2004, (b) the Dealer Manager Agreement between the Target Company,
Nortek, Inc., UBS Securities LLC and Credit Suisse First Boston LLC, dated July
20, 2004, and (c) the supplemental indentures contemplated by the Offer to
Purchase (to be entered into as of the Closing Date).
"FACILITY" means the U.S. Facility and the Canadian Facility,
as the context may require.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) of
the quotations for the day for such transactions received by the applicable
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"FEE LETTER" means the letter agreement, dated July 15, 2004,
among the Company, the Arrangers and UBS Loan Finance LLC.
"FIRST MERGER" has the meaning specified in the Preliminary
Statements to this Agreement.
"FLOATING RATE NOTES" means all Senior Floating Rate Notes due
2010 issued by Nortek, Inc. pursuant to the Indenture, dated as of March 1,
2004, as amended and supplemented from time to time, by and among Nortek, Inc.
and U.S. Bank National Association.
"FOREIGN LENDER" has the meaning specified in Section
10.15(a)(i).
"FOREIGN PLAN" shall mean any employee benefit plan, program,
policy, arrangement or agreement maintained or contributed to by, or entered
into with, the U.S. Borrower or any Subsidiary with respect to employees
employed outside the United States.
"FOREIGN SUBSIDIARY" means any direct or indirect Subsidiary
of the U.S. Borrower which is not a Domestic Subsidiary.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"FUND" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course.
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"GAAP" means generally accepted accounting principles in the
United States set forth 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
such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, any agency, authority,
instrumentality, regulatory body, court, administrative tribunal, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government.
"GRANTING LENDER" has the meaning specified in Section
10.07(g).
"GUARANTEE" means, as to any Person, without duplication, (a)
any obligation, contingent or otherwise, of such Person guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the "PRIMARY OBLIGOR") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien); provided that the term
"Guarantee" shall not include guarantees of lease payments entered into in the
ordinary course of business except to the extent required in accordance with
GAAP to be reflected on a balance sheet in accordance with Financial Accounting
Standards Board Interpretation No. 45. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "GUARANTEE" as a verb has a corresponding meaning.
"GUARANTORS" means, collectively, Holdings, the U.S.
Subsidiary Guarantors and each of the Canadian Guarantors. Each of the
Guarantors on the Closing Date, other than Holdings and the U.S. Borrower, is
listed on Schedule I.
"GUARANTY" means, collectively, the Parent Guaranty, the U.S.
Subsidiary Guaranty and the Canadian Guaranty.
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"HAZARDOUS MATERIALS" means all pollutants, contaminants,
chemicals, constituents substances, or wastes, including petroleum or petroleum
products, asbestos or asbestos-containing materials, polychlorinated biphenyls,
radon gas, infectious or medical wastes, of any nature regulated pursuant to or
which can give rise to liability under any Environmental Law.
"HEDGE BANK" means any Person that is an Arranger or a Lender
or an Affiliate of an Arranger or a Lender, in its capacity as a party to a
Secured Hedge Agreement.
"HOLDINGS" has the meaning specified in the introductory
paragraph to this Agreement.
"HOLDINGS CONSOLIDATED LEVERAGE RATIO" means, with respect to
the Consolidated Parties on a consolidated basis, as of the end of any fiscal
quarter of the U.S. Borrower for the four (4) fiscal quarter period ending on
such date, the ratio of (a) Consolidated Funded Indebtedness (net of the amount
of Unrestricted Cash on hand on such date) of the Consolidated Parties on the
last day of such period to (b) Consolidated EBITDA of the Consolidated Parties
for such period.
"HONOR DATE" has the meaning specified in Section 2.03(c)(i).
"ICC" has the meaning specified in Section 2.03(h).
"INCREASED FACILITY" has the meaning set forth in Section
2.06(d).
"INCREASED LENDER" has the meaning set forth in Section
2.06(d).
"INCREMENTAL TERM LOANS" has the meaning set forth in Section
2.14(a).
"INDEBTEDNESS" means, as to any Person at a particular time,
without duplication, all of the following, whether or not included as
indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) the maximum amount (after giving effect to any prior
drawings or permanent reductions which may have been reimbursed) of all
letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds, performance bonds and
similar instruments issued or created by or for the account of such
Person;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than accrued expenses and
trade debt incurred in the ordinary course of business) which would
appear as liabilities on a balance sheet of such Person;
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(e) indebtedness (excluding prepaid interest thereon) secured
by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements and mortgage, industrial revenue bond, industrial
development bond and similar financings), whether or not such
indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) all Attributable Indebtedness;
(g) all obligations of such Person in respect of Disqualified
Equity Interests; and
(h) all Guarantees of such Person in respect of any of the
foregoing;
provided, that "Indebtedness" shall not include any post-closing payment
adjustments or earn-out, non-competition or consulting obligations existing on
the Closing Date or incurred in connection with Investments permitted under
Section 7.02 until such obligations are required in accordance with GAAP to be
reflected as a liability on the balance sheet of the applicable Person
For all purposes hereof, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in which such
Person is a general partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person. The amount of any net obligation
under any Swap Contract on any date shall be deemed to be the Swap Termination
Value thereof as of such date. The amount of Indebtedness of any Person for
purposes of clause (e) shall be deemed to be equal to the lesser of (i) the
aggregate unpaid amount of such Indebtedness and (ii) the fair market value of
the property encumbered thereby as determined by such Person in good faith.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section
10.05.
"INDEMNITEES" has the meaning set forth in Section 10.05.
"INFORMATION" has the meaning specified in Section 10.08.
"INFORMATION MEMORANDUM" means the confidential information
memorandum dated July 2004 used by the Arrangers in connection with the
syndication of the Commitments.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means,
collectively, the intellectual property security agreement, substantially in the
form of Exhibit I hereto together with each other intellectual property security
agreement supplements executed and delivered pursuant to Section 6.12 or the
Security Agreement.
"INTERCOMPANY NOTE" means an intercompany note, substantially
in the form of Exhibit L hereto, executed by Holdings and each of its
Subsidiaries and endorsed in blank by each of the U.S. Loan Parties.
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"INTEREST COVERAGE RATIO" means, with respect to the Borrower
Parties on a consolidated basis, as of the end of any fiscal quarter of the U.S.
Borrower for the four (4) fiscal quarter period ending on such date with respect
to the Borrower Parties on a consolidated basis, the ratio of (a) Consolidated
EBITDA of the Borrower Parties to (b) Consolidated Interest Charges of the
Borrower Parties; provided that when calculating the Interest Coverage Ratio,
Consolidated Interest Charges shall be equal to (i) for purposes of any
calculation of the Interest Coverage Ratio, for the four fiscal quarter period
ending December 31, 2004, the product of (A) Consolidated Interest Charges of
the U.S. Borrower for the fiscal quarter ending December 31, 2004 multiplied by
(B) four (4); (ii) for the four fiscal quarter period ending April 2, 2005,
Consolidated Interest Charges calculated for the two (2) fiscal quarters ending
April 2, 2005 multiplied by two (2); and (iii) for the four fiscal quarter
period ending July 3, 2005, Consolidated Interest Charges calculated for the
three (3) fiscal quarters ending July 3, 2005 multiplied by one and one-third
(4/3).
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable to such Loan and
the Maturity Date of the Facility under which such Loan was made; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan (including a Swing Line Loan), the last Business Day of each
March, June, September and December and the Maturity Date of the Facility under
which such Loan was made.
"INTEREST PERIOD" means (i) as to each Eurodollar Rate Loan,
the period commencing on the date such Eurodollar Rate Loan is disbursed or
converted to or continued as a Eurodollar Rate Loan and ending on the date one,
two, three or six months thereafter, or to the extent available to all Term
Lenders, U.S. Revolving Lenders or Canadian Lenders, as applicable, nine or
twelve months thereafter, as selected by a Borrower in its Committed Loan Notice
and (ii) relative to any Canadian BA or Acceptance Note, the period beginning on
(and including) the date on which such Canadian BA is accepted or rolled over
pursuant to Article II or such Acceptance Note is issued pursuant to Article II
and continuing to (but excluding) the date which is approximately 30, 60, 90 or
180 days thereafter (or, if requested by the relevant Canadian Borrower and
available to each Canadian Lender, the date which is approximately 14 days, nine
months or twelve months thereafter) as a Canadian Borrower may select in its
relevant notice pursuant to Section 2.02; provided that:
(a) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(c) no Interest Period shall extend beyond the Maturity Date
of the Facility under which such Loan was made; and
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(d) until the earlier of (i) the date on which the Arrangers
have notified the U.S. Borrower that a successful syndication (as
determined by the Arrangers) has been achieved and (ii) the 30th day
following the Closing Date, the U.S. Borrower shall only be permitted
to request Interest Periods of one month's duration.
"INVESTMENT" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Equity Interests or debt or other securities of another
Person, (b) a loan, advance or capital contribution to, Guarantee or assumption
of Indebtedness of, or purchase or other acquisition of any other Indebtedness
or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person and any arrangement
pursuant to which the investor incurs Indebtedness of the type referred to in
clause (h) of the definition of "Indebtedness" set forth in this Section 1.01 in
respect of such Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of all or substantially all of the
property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person. For purposes of
covenant compliance, the amount of any Investment shall be the amount actually
invested, without adjustment for subsequent increases or decreases in the value
of such Investment.
"INVESTORS LLC" means THL-Nortek Investors, LLC, a Delaware
limited liability company.
"IP RIGHTS" has the meaning set forth in Section 5.17.
"IP SECURITY AGREEMENT SUPPLEMENT" has the meaning specified
in the Security Agreement.
"IRS" means the United States Internal Revenue Service.
"JOINT VENTURE" means any Person which is not a Restricted
Subsidiary of the U.S. Borrower in which the U.S. Borrower owns directly or
indirectly more than 20% of the voting stock.
"JUNIOR FINANCING" has the meaning specified in Section 7.14.
"JUNIOR FINANCING DOCUMENTATION" means the Senior Subordinated
Notes, the Senior Subordinated Notes Indenture, the Nortek Existing Senior
Subordinated Notes and the Existing Indenture governing the Nortek Existing
Senior Subordinated Notes and any documentation governing any other Junior
Financing.
"LANDLORD CONSENT" has the meaning specified in Section
6.16(b).
"LAWS" means, collectively, all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and
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permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law.
"L/C ADVANCE" means (a) with respect to each U.S. Revolving
Credit Lender, such Lender's funding of its participation in any U.S. L/C
Borrowing in accordance with its Pro Rata Share and (b) with respect to each
Canadian Lender, such Canadian Lender's funding of its participation in any
Canadian L/C Borrowing in accordance with its Pro Rata Share.
"L/C BORROWING" means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the date
when made or refinanced as a U.S. Revolving Credit Borrowing or a Canadian
Borrowing, as applicable.
"L/C CREDIT EXTENSION" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date thereof, or the
renewal or increase of the amount thereof.
"L/C ISSUER" means the U.S. L/C Issuer or the Canadian L/C
Issuer, as applicable.
"L/C OBLIGATIONS" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of Credit
plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.
For purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.08. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"LENDER" means the U.S. Lenders and the Canadian Lenders and,
as the context requires (including, without limitation, for purposes of Sections
10.04 and 10.05), includes the L/C Issuers and the Swing Line Lenders.
"LENDING OFFICE" means, as to any Lender, the office or
offices of such Lender described as such in such Lender's Administrative
Questionnaire, or such other office or offices as a Lender may from time to time
notify each Borrower and the applicable Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder
and shall include the Existing Letters of Credit. A Letter of Credit may be a
commercial letter of credit or a standby letter of credit.
"LETTER OF CREDIT APPLICATION" means an application and
agreement for the issuance or amendment of a Letter of Credit in the form from
time to time in use by the applicable L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is five
(5) days prior to the scheduled Maturity Date then in effect for the Revolving
Credit Facility (or, if such day is not a Business Day, the next preceding
Business Day) under which such Letter of Credit was issued.
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"LEVERAGE RATIO" means, with respect to the Borrower Parties
on a consolidated basis, as of the end of any fiscal quarter of the U.S.
Borrower for the four (4) fiscal quarter period ending on such date, the ratio
of (a) Consolidated Funded Indebtedness (net of the amount of Unrestricted Cash
on hand on such date) of the Borrower Parties on the last day of such period to
(b) Consolidated EBITDA of the Borrower Parties for such period.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge, or
preference, priority or other security interest or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title to
real property, and any Capitalized Lease having substantially the same economic
effect as any of the foregoing).
"LOAN" means an extension of credit by a Lender to a Borrower
under Article II in the form of a U.S. Loan, a Canadian Loan or a Canadian
Swingline Loan and shall include without limitation all Canadian BAs in respect
of which any Canadian Lender has not received payment in full. References herein
to the "principal amount" of a Loan shall, when referring to a Canadian BA, mean
the face amount thereof.
"LOAN DOCUMENTS" means, collectively, (a) for purposes of this
Agreement and the Notes and any amendment, supplement or other modification
hereof or thereof and for all other purposes other than for purposes of the
Guaranty and the Collateral Documents, (i) this Agreement, (ii) the Notes, (iii)
the Guaranty, (iv) the Collateral Documents, (v) the Fee Letter, (vi) each
Letter of Credit Application, (vii) the Acceptance Notes and (viii) Canadian BAs
and (b) for purposes of the Guaranty and the Collateral Documents, (i) this
Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the Collateral Documents,
(v) each Letter of Credit Application, (vi) the Fee Letter, (vii) each Secured
Hedge Agreement and each Secured Cash Management Agreement, and (viii) the
Assumption Agreement.
"LOAN PARTIES" means, collectively, each Borrower and each
Guarantor.
"MANAGEMENT SHAREHOLDERS" means Xxxxxxx X. Xxxxxx and the
other members of management of the U.S. Borrower or its Subsidiaries who are
investors in Holdings on the Closing Date.
"MASTER AGREEMENT" has the meaning specified in the definition
of "Swap Contract".
"MATERIAL ADVERSE EFFECT" means (a) a material adverse effect
on the condition (financial or otherwise), business, operations, assets or
liabilities of the U.S. Borrower and its Subsidiaries, taken as a whole, (b) a
material adverse effect on the ability of the U.S. Borrower or the Loan Parties
(taken as a whole) to perform their respective obligations under the Loan
Documents or (c) a material adverse effect on the rights and remedies of the
Lenders under any Loan Document.
"MATERIAL DISPOSITION" means any Disposition by the U.S.
Borrower or any Restricted Subsidiary of property constituting all or
substantially all the Equity Interests in any
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Subsidiary or any division, product line or facility used for operations of the
U.S. Borrower or any of its Subsidiaries with a fair market value in excess of
$5,000,000.
"MATERIAL REAL ESTATE" means any parcel of real property that
is fee owned by a U.S. Loan Party, other than any parcel of real property that
(i) has a fair market value less than $2,000,000 or (ii) is subject to a Lien
permitted by Section 7.01(p) which prohibits the granting of a Lien to the U.S.
Administrative Agent.
"MATURITY DATE" means (a) with respect to the U.S. Revolving
Credit Facility, the earlier of (i) August 27, 2010 and (ii) the date of
termination in whole of the Revolving Credit Commitments, the Letter of Credit
Commitments, and the Swing Line Commitments pursuant to Section 2.06(a) or 8.02,
(b) with respect to the Canadian Facility, the earlier of (i) August 27, 2010
and (ii) the date of termination in whole of the Canadian Credit Commitments
pursuant to Section 2.06(a) or 8.02, and (c) with respect to the Term Facility,
the earlier of (i) August 27, 2011 and (ii) the date of acceleration of the Term
Loans pursuant to Section 8.02.
"MAXIMUM RATE" has the meaning specified in Section 10.10.
"MERGERS" has the meaning specified in the Preliminary
Statements to this Agreement.
"MINORITY LENDERS" shall have the meaning assigned to such
term in Section 10.01.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and any
successor thereto.
"MORTGAGE" means, collectively, the deeds of trust, trust
deeds and mortgages made by the Loan Parties in favor or for the benefit of the
Administrative Agent for the benefit of the Secured Parties substantially in the
form of Exhibit H-1 or H-2, as applicable (with such changes as may be customary
to account for local law matters), together with each other mortgage executed
and delivered pursuant to Section 4.01(a)(xi) and Section 6.12.
"MORTGAGE POLICIES" has the meaning specified in Section
4.01(a)(xi)(B).
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA, to which any Loan Party or any
ERISA Affiliate makes or is obligated to make contributions, or, during the
preceding five plan years, has made or been obligated to make contributions.
"NET CASH PROCEEDS" means:
(a) with respect to the Disposition of any asset by Holdings,
the U.S. Borrower or any of its Restricted Subsidiaries or any Casualty
Event, the excess, if any, of (i) the sum of cash and Cash Equivalents
received in connection with such Disposition or Casualty Event
(including any cash or Cash Equivalents received by way of deferred
payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received and, with respect to any
Casualty Event, any insurance proceeds or
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condemnation awards in respect of such Casualty Event received by or
paid to or for the account of Holdings, the U.S. Borrower or any of its
Restricted Subsidiaries) over (ii) the sum of (A) the principal amount
and premium, if any, of any Indebtedness that is secured by the asset
subject to such Disposition or Casualty Event and that is repaid in
connection with such Disposition or Casualty Event (other than
Indebtedness under the Loan Documents), (B) the out-of-pocket expenses
incurred by Holdings, the U.S. Borrower or such Restricted Subsidiary
in connection with such Disposition or Casualty Event, (C) taxes paid
or reasonably estimated to be actually payable in connection therewith,
and (D) any reserve for adjustment in respect of (x) the sale price of
such asset or assets established in accordance with GAAP and (y) any
liabilities associated with such asset or assets and retained by
Holdings, the U.S. Borrower or any of its Restricted Subsidiaries after
such sale or other disposition thereof, including, without limitation,
pension and other post-employment benefit liabilities and liabilities
related to environmental matters or against any indemnification
obligations associated with such transaction and it being understood
that "Net Cash Proceeds" shall include, without limitation, any cash or
Cash Equivalents (i) received upon the Disposition of any non-cash
consideration received by Holdings, the U.S. Borrower or any of its
Restricted Subsidiaries in any such Disposition and (ii) upon the
reversal (without the satisfaction of any applicable liabilities in
cash in a corresponding amount) of any reserve described in clause (D)
of the preceding sentence or, if such liabilities have not been
satisfied in cash and such reserve not reversed within three hundred
and sixty-five (365) days after such Disposition or Casualty Event, the
amount of such reserve;
(b) with respect to the issuance of any Equity Interest by
Holdings or any of its Subsidiaries, the excess of (i) the sum of the
cash and Cash Equivalents received in connection with such issuance
over (ii) the investment banking fees, underwriting discounts and
commissions, taxes and other out-of-pocket expenses and other customary
expenses, incurred by Holdings or such Subsidiary in connection with
such issuance; and
(c) with respect to the incurrence or issuance of any
Indebtedness by Holdings, the U.S. Borrower or any of its Restricted
Subsidiaries, the excess, if any, of (i) the sum of the cash received
in connection with such sale over (ii) the investment banking fees,
underwriting discounts and commissions, and other out-of-pocket
expenses and other customary expenses, incurred by Holdings, the U.S.
Borrower or such Restricted Subsidiary in connection with such sale.
"NON-GUARANTOR DOMESTIC SUBSIDIARY" means each Domestic
Subsidiary listed on Schedule 1.01(c) hereto and each other Domestic Subsidiary
formed or acquired after the date hereof, in each case, for so long as (i) all
property of such Subsidiary has a fair market value in the aggregate of less
than $100,000, (ii) such Subsidiary does not have any Indebtedness (including by
way of Guarantee) in respect of money borrowed, and (iii) such Subsidiary is not
engaged in any substantial business activities.
"NONRENEWAL NOTICE DATE" has the meaning specified in Section
2.03(b)(iii).
"NORTEK EXISTING SENIOR SUBORDINATED NOTES" means all
outstanding 9 7/8% Senior Subordinated Notes due 2011 issued by Nortek, Inc.
pursuant to the Indenture, dated as of
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June 12, 2001, as amended and supplemented from time to time, by and among
Nortek, Inc. and U.S. Bank National Association, as successor in interest to
State Street Bank and Trust Company.
"NOT OTHERWISE APPLIED" means, with reference to any amount of
Net Cash Proceeds of any transaction or event or of Excess Cash Flow, that such
amount (a) was not required to be applied to prepay the Loans pursuant to
Section 2.05(b), (b) was not previously included in a calculation of
"Consolidated EBITDA" pursuant to clause (b)(xvii) of the definition thereof and
(c) was not previously applied in determining the permissibility of a
transaction (including, without limitation, the making of an Investment,
Restricted Payment, capital expenditure or refinancing of Junior Financing)
under the Loan Documents where such permissibility was (or may have been)
contingent on receipt of such amount. The U.S. Borrower shall promptly notify
the U.S. Administrative Agent of any application of such amount as contemplated
by (c) above.
"NOTE" means a Term Note or a Revolving Credit Note, as the
context may require.
"NOTICE OF INTENT TO CURE" has the meaning specified in
Section 6.02(b).
"NOTIONAL BA PROCEEDS" means, relative to a particular
Canadian BA Rate Loan, the face amount of such Canadian BAs multiplied by the
price (which product shall be rounded to the nearest full cent, with one-half
cent being rounded upward), where the price is calculated by dividing one by the
sum of one plus the product of (i) the Canadian BA Rate applicable thereto
expressed as a decimal fraction, multiplied by (ii) a fraction, the numerator of
which is the term of such Canadian BAs in days and the denominator of which is
365 (which price will be rounded to the nearest 0.001%); less, the per annum
Canadian BA Stamping Fee multiplied by the face amount of the applicable
Canadian BAs, and multiplying the result by a fraction, the numerator of which
is the actual number of days in the period commencing on the date of acceptance
of such Canadian BAs and continuing to (but excluding) the maturity date of such
Canadian BAs, and the denominator of which is 365 (such fee to be non-refundable
and fully earned upon acceptance of such Canadian BAs).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party (including for the
avoidance of doubt, the Canadian Loan Parties) arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including interest and
fees that accrue after the commencement by or against any Loan Party of any
proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding. Without limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, Letter of Credit commissions, charges,
expenses, fees, Attorney Costs, indemnities and other amounts payable by any
Loan Party under any Loan Document and (b) the obligation of any Loan Party to
reimburse any amount in respect of any of
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the foregoing that any Lender, in its sole discretion, may elect to pay or
advance on behalf of such Loan Party in accordance with the terms of the Loan
Documents.
"OFAC" has the meaning given to such term by Section 5.22(b).
"ORGANIZATION DOCUMENTS" means, (a) with respect to any
corporation, the certificate or articles of incorporation and the bylaws (or
equivalent or comparable constitutive documents with respect to any non-U.S.
jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement;
and (c) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership, joint venture or other applicable agreement of
formation or organization and any agreement, instrument, filing or notice with
respect thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OTHER TAXES" has the meaning specified in Section 3.01(b).
"OUTSTANDING AMOUNT" means (a) with respect to the Term Loans,
Revolving Credit Loans and Swing Line Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of Term Loans, Revolving Credit Loans (including any
refinancing of outstanding unpaid drawings under Letters of Credit or L/C Credit
Extensions as a Revolving Credit Borrowing) and Swing Line Loans, as the case
may be, occurring on such date (and calculated with respect to any Loans
denominated in Canadian Dollars, at the U.S. Dollar Equivalent thereof as of the
most recent Revaluation Date); and (b) with respect to any L/C Obligations on
any date, the amount of such L/C Obligations on such date after giving effect to
any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date (calculated with respect
to any Letters of Credit denominated in Canadian Dollars, at the U.S. Dollar
Equivalent thereof as of the most recent Revaluation Date), including as a
result of any reimbursements of outstanding unpaid drawings under any Letters of
Credit (including any refinancing of outstanding unpaid drawings under Letters
of Credit or L/C Credit Extensions as a Revolving Credit Borrowing) or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"PARENT GUARANTY" means the Parent Guaranty made by Holdings
in favor of the Administrative Agents on behalf of the Lenders, substantially in
the form of Exhibit F-1.
"PARTICIPANT" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by any Loan
Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate
contributes or has an obligation to contribute, or in the
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case of a multiple employer or other plan described in Section 4064(a) of ERISA,
has made contributions at any time during the immediately preceding five (5)
plan years.
"PERFECTION CERTIFICATE" shall mean a certificate in the form
of Exhibit M-1 or any other form approved by the Administrative Agents, as the
same shall be supplemented from time to time by a Perfection Certificate
Supplement or otherwise.
"PERFECTION CERTIFICATE SUPPLEMENT" shall mean a certificate
supplement in the form of Exhibit M-2 or any other form approved by the
Administrative Agents.
"PERMITTED ACQUISITION" has the meaning specified in Section
7.02(h).
"PERMITTED CURE ISSUANCE" has the meaning specified in clause
(b)(xvii) of the definition of "Consolidated EBITDA".
"PERMITTED ENCUMBRANCES" has the meaning specified in the
Mortgages.
"PERMITTED EQUITY ISSUANCE" means any sale or issuance of any
Equity Interests (other than Disqualified Equity Interests) of Holdings to the
extent (a) permitted hereunder and (b) the Net Cash Proceeds thereof are not
required to be applied to the prepayment of the Loans pursuant to Section
2.05(b).
"PERMITTED HOLDCO DEBT" has the meaning specified in Section
7.03(c)(ii).
"PERMITTED REFINANCING" means, with respect to any Person, any
modification, refinancing, refunding, renewal or extension of any Indebtedness
of such Person; provided that (a) the principal amount (or accreted value, if
applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or
extended except by an amount equal to a reasonable premium or other reasonable
amount paid, and fees and expenses reasonably incurred, in connection with such
modification, refinancing, refunding, renewal or extension and by an amount
equal to any existing commitments unutilized thereunder (to the extent such
commitments could be drawn at the time of such refinancing in compliance with
the Credit Agreement) or as otherwise permitted pursuant to Section 7.03, (b)
such modification, refinancing, refunding, renewal or extension has a final
maturity date equal to or later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being modified, refinanced, refunded,
renewed or extended, (c) if the Indebtedness being modified, refinanced,
refunded, renewed or extended is subordinated in right of payment to the
Obligations, such modification, refinancing, refunding, renewal or extension is
subordinated in right of payment to the Obligations on terms at least as
favorable to the Lenders as those contained in the documentation governing the
Indebtedness being modified, refinanced, refunded, renewed or extended, (d) the
terms and conditions (including, if applicable, as to collateral) of any such
modified, refinanced, refunded, renewed or extended Indebtedness are not
materially less favorable to the Loan Parties or the Lenders than the terms and
conditions of the Indebtedness being modified, refinanced, refunded, renewed or
extended, (e) such modification, refinancing, refunding, renewal or extension is
incurred and/or guaranteed by only the Persons
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who are the obligors on the Indebtedness being modified, refinanced, refunded,
renewed or extended, and (f) at the time thereof, no Default shall have occurred
and be continuing.
"PERMITTED SUBORDINATED INDEBTEDNESS" means any unsecured
Indebtedness of the U.S. Borrower that (a) is expressly subordinated to the
prior payment in full in cash of the Obligations on terms and conditions no less
favorable to the Lenders than the terms and conditions of the Senior
Subordinated Notes, (b) will not mature prior to the date that is ninety-one
(91) days after the Maturity Date of the Term Facility, (c) has no scheduled
amortization or payments of principal prior to the Maturity Date of the Term
Facility, and (d) has covenant, default and remedy provisions no more
restrictive, or mandatory prepayment, repurchase or redemption provisions no
more onerous or expansive in scope, than those contained in the Senior
Subordinated Notes Indenture, taken as a whole; provided any such Indebtedness
shall constitute Permitted Subordinated Indebtedness only if (i) both before and
after giving effect to the issuance or incurrence thereof, no Default or Event
of Default shall have occurred and be continuing, and (ii) if the amount of such
Indebtedness issued or incurred in any fiscal quarter exceeds $5,000,000, the
Chief Financial Officer of the U.S. Borrower shall have delivered an officer's
certificate demonstrating Pro Forma Compliance with the covenants set forth in
Section 7.11 in form and substance reasonably satisfactory to the U.S.
Administrative Agent, it being understood that any capitalized or paid-in-kind
interest or accreted principal on such Indebtedness shall not constitute an
issuance or incurrence of Indebtedness for purposes of this proviso.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PLAN" means any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) established by any Loan Party or, with respect
to any such plan that is subject to Section 412 of the Code or Title IV of
ERISA, any ERISA Affiliate.
"PLEDGED DEBT" has the meaning set forth in the U.S. Security
Agreement.
"PLEDGED INTERESTS" has the meaning set forth in the U.S.
Security Agreement.
"POST-INCREASE REVOLVING LENDERS" has the meaning specified in
Section 2.15(b).
"PPSA" means the Personal Property Security Act (Ontario) and
the regulations thereunder, as from time to time in effect; provided, however,
if attachment, perfection or priority of any security interests in any
Collateral is governed by the personal property security laws of any
jurisdiction other than Ontario, "PPSA" shall mean those personal property
security laws in such other jurisdiction relating to such attachment, perfection
or priority of any security interests in any Collateral.
"PRE-INCREASE REVOLVING LENDERS" has the meaning specified in
Section 2.15(b).
"PRO FORMA BASIS," "PRO FORMA COMPLIANCE" and "PRO FORMA
EFFECT" mean, for purposes of calculating the Holdings Consolidated Leverage
Ratio, the Interest Coverage Ratio and the Leverage Ratio for any period, that
any Specified Transaction that has been
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consummated in such period and the following transactions in connection
therewith shall be deemed to have occurred as of the first day of such period:
(a) income statement items (whether positive or negative) attributable to the
property or Person subject to such Specified Transaction, (i) in the case of a
Material Disposition, shall be excluded, (ii) in the case of a Permitted
Acquisition or Investment described in the definition of "Specified
Transaction", shall be included and (iii) in the case of a Permitted
Acquisition, solely for purposes of calculating compliance with the financial
covenants set forth in Section 7.11, Pro Forma Cost Savings shall also be
included, (b) any retirement of Indebtedness, and (c) any Indebtedness incurred
or assumed by the U.S. Borrower or any of its Restricted Subsidiaries in
connection therewith and if such Indebtedness has a floating or formula rate,
shall have an implied rate of interest for the applicable period for purposes of
this definition determined by utilizing the rate which is or would be in effect
with respect to such Indebtedness as at the relevant date of determination;
provided that the foregoing pro forma adjustments may be applied to the
financial covenants set forth in Section 7.11 solely to the extent that such
adjustments are consistent with the definition of Consolidated EBITDA and
Consolidated Interest Expense and give effect to events that are (x) directly
attributable to such transaction, (y) expected to have a continuing impact on
the U.S. Borrower and its Restricted Subsidiaries and (z) factually supportable.
"PRO FORMA COST SAVINGS" means, with respect to any period,
the reduction in net costs and related adjustments that (i) were directly
attributable to a Permitted Acquisition or Investment included in the definition
of Specified Transaction that occurred during the four-quarter period or after
the end of the four-quarter period and on or prior to the date of determination
and calculated on a basis that is consistent with Regulation S-X under the
Securities Act as in effect and applied as of the date of this Agreement, (ii)
were actually implemented by the business that was the subject of any such
Specified Transaction within six months after the date of such Specified
Transaction and prior to the date of determination that are supportable and
quantifiable by the underlying accounting records of such business or (iii)
relate to the business that is the subject of any such Specified Transaction and
that the U.S. Borrower reasonably determines are probable based upon
specifically identifiable actions to be taken within six months of the date of
such Specified Transaction and, in the case of each of (i), (ii) and (iii), are
described, as provided below, in a certificate of a Responsible Officer of the
U.S. Borrower in form satisfactory to the U.S. Administrative Agent, as if all
such reductions in costs had been effected as of the beginning of such period
"PRO RATA SHARE" means, with respect to each Lender at any
time, a fraction (expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is the amount of the Commitments of such Lender
under the applicable Facility or Facilities at such time and the denominator of
which is the amount of the Aggregate Commitments under the applicable Facility
or Facilities at such time; provided that if the commitment of each Lender to
make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions
have been terminated pursuant to Section 8.02, then the Pro Rata Share of each
Lender shall be determined based on the Pro Rata Share of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. The initial Pro Rata Share of
each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
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"QUALIFYING IPO" means the issuance by Holdings of its common
Equity Interests in an underwritten primary public offering (other than a public
offering pursuant to a registration statement on Form S-8) pursuant to an
effective registration statement filed with the SEC in accordance with the
Securities Act (whether alone or in connection with a secondary public
offering).
"REAL PROPERTIES" means those U.S. properties listed on
Schedule 1.01(a) and Schedule 6.16(b) hereto.
"REALLOCATED COMMITMENTS" has the meaning set forth in Section
2.06(d).
"REALLOCATION EFFECTIVENESS DATE" shall have the meaning set
forth in Section 2.06(f).
"REDUCED FACILITY" has the meaning set forth in Section
2.06(d).
"REDUCED LENDER" has the meaning set forth in Section 2.06(d).
"REFINANCED TERM LOANS" has the meaning set forth in Section
10.01.
"REGISTER" has the meaning set forth in Section 10.07(c).
"RELEASE" shall mean any spilling, leaking, seepage, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing or depositing in, into or onto the environment.
"REMAINING REDUCED FACILITY LENDERS" shall have the meaning
assigned to such term in Section 2.06(f).
"REPLACEMENT TERM LOANS" has the meaning set forth in Section
10.01.
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA, other than events for which the thirty (30) day notice
period has been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a
Borrowing, conversion or continuation of Term Loans or Revolving Credit Loans, a
Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of
Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan
Notice.
"REQUIRED LENDERS" means, as of any date of determination,
Lenders having more than 50% of the sum of the (a) Total Outstandings (with the
aggregate amount of each Lender's risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed "held" by such Lender for
purposes of this definition), (b) aggregate unused Term Commitments and (c)
aggregate unused Revolving Credit Commitments; provided that the unused Term
Commitment, unused Revolving Credit Commitment of, and the portion of the Total
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
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"REQUISITE CLASS LENDERS" means, at any time of determination,
(i) for the Term Lenders, Lenders holding more than 50% of the aggregate unused
Term Commitments of all Lenders and Outstanding Amount of Term Loans of all
Lenders; (ii) for the U.S. Revolving Credit Lenders, Lenders holding more than
50% of the aggregate outstanding amount of all U.S. Revolving Loans, unused U.S.
Revolving Credit Commitments and participations in U.S. Letters of Credit and
U.S. Swing Line Loans of all Lenders; and (iii) for the Canadian Lenders,
Lenders holding more than 50% of the aggregate Outstanding Amount of all
Canadian Loans, unused Canadian Credit Commitments and participations in
Canadian Letters of Credit and Canadian Swing Line Loans of all Lenders;
provided that the Commitments, Loans and participations held by any Defaulting
Lender shall be excluded for purposes of making a determination of the Requisite
Class Lenders.
"RESPONSIBLE OFFICER" means the chief executive officer,
president, chief financial officer, controller, treasurer or assistant treasurer
of a Loan Party and, as to any document delivered on the Closing Date, any vice
president, secretary or assistant secretary. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interest of Holdings, the U.S. Borrower or any Restricted Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
defeasance, acquisition, cancellation or termination of any such Equity
Interest, or on account of any return of capital to Holdings or the U.S.
Borrower's stockholders, partners or members (or the equivalent Persons
thereof).
"RESTRICTED SUBSIDIARY" means each Subsidiary of the U.S.
Borrower that is not an Unrestricted Subsidiary.
"REVALUATION DATE" means (a) the CAM Exchange Date; (b) with
respect to any Canadian Loan accruing interest at the Canadian Prime Rate and
each Canadian BA, each of the following: (i) each date of a Borrowing of such
Canadian Loan and (ii) such additional dates as the Canadian Administrative
Agent shall determine or, following an Event of Default, the Requisite Class
Lenders holding Canadian Credit Commitments shall require; and (c) with respect
to Canadian Letters of Credit denominated in Canadian Dollars, each of the
following: (i) the date of issuance of such Letter of Credit, (ii) each date of
an amendment of any such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each date of
any payment by the Canadian L/C Issuer under any such Letter of Credit and (iv)
such additional dates as the Canadian Administrative Agent or the Canadian L/C
Issuer shall determine or, following an Event of Default, the Requisite Class
Lenders holding Canadian Credit Commitments shall require.
"REVOLVING CREDIT BORROWING" means a U.S. Revolving Credit
Borrowing and/or a Canadian Borrowing, as applicable.
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"REVOLVING CREDIT COMMITMENT" means the U.S. Revolving Credit
Commitment and the Canadian Credit Commitment.
"REVOLVING CREDIT COMMITMENTS INCREASE EFFECTIVE DATE" has the
meaning specified in Section 2.15(b).
"REVOLVING CREDIT EXPOSURE" means at any time, the aggregate
of Canadian Exposure of all Canadian Lenders plus the aggregate U.S. Revolving
Credit Exposure of all U.S. Revolving Credit Lenders.
"REVOLVING CREDIT FACILITY" means the U.S. Revolving Credit
Facility and the Canadian Facility.
"REVOLVING CREDIT LENDER" means, as the context may require, a
U.S. Revolving Credit Lender and/or a Canadian Lender.
"REVOLVING CREDIT LOAN" means, as the context may require, a
U.S. Revolving Credit Loan and/or a Canadian Loan.
"REVOLVING CREDIT NOTE" means, as the context may require, a
U.S. Revolving Credit Note and/or a Canadian Note.
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc., and any successor thereto.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"SECOND MERGER" has the meaning specified in the Preliminary
Statements to this Agreement.
"SECURED HEDGE AGREEMENT" means any interest rate Swap
Contract relating to the Loans permitted under Article VII that is entered into
by and between any Loan Party and any Hedge Bank.
"SECURED OBLIGATIONS" has the meaning specified in the U.S.
Security Agreement.
"SECURED PARTIES" means, collectively, the Administrative
Agents, each other Agent, the Lenders, the Hedge Banks, the Cash Management
Banks, the Supplemental Administrative Agent and each co-agent or sub-agent
appointed by an Administrative Agent from time to time pursuant to Section
9.01(c).
"SECURITY AGREEMENT" means, as the context may require, the
U.S. Security Agreement and the Canadian Security Agreement.
"SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in
the applicable Security Agreement.
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"SENIOR DISCOUNT NOTES" means all outstanding 10% Senior
Discount Notes due 2011 issued by the Target pursuant to the Indenture, dated as
of November 24, 2003, as amended and supplemented from time to time, by and
among the Target and U.S. Bank National Association.
"SENIOR SUBORDINATED NOTES" means the 8.50% unsecured senior
subordinated notes of the U.S. Borrower due 2014 in an aggregate principal
amount of $625,000,000 issued on the Closing Date, and any exchange notes issued
in exchange therefor, in each case, pursuant to the Senior Subordinated Notes
Indenture.
"SENIOR SUBORDINATED NOTES INDENTURE" means the Indenture
dated as of the Closing Date between U.S. Bank National Association, the U.S.
Borrower and the Guarantors, together with all instruments and other agreements
in connection therewith, as may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof, but only to the extent
permitted under the terms of the Loan Documents.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on
any date of determination, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present fair
salable value of the assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (d) such Person is not engaged
in business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an unreasonably
small capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
"SPC" has the meaning specified in Section 10.07(g).
"SPECIFIED EQUITY ISSUANCES" means the sale or issuance by
Holdings of any of its Equity Interests in a public offering or in a private
placement or sale that is underwritten, managed, arranged, placed or initially
purchased by an investment bank (it being understood that the Sponsor is not an
investment bank), which, for the avoidance of doubt, does not include the sale
or issuance of any such Equity Interests (a) to the Equity Investors, their
Affiliates, related funds and limited partners, (b) to other Persons making
additional equity investments together with the Equity Investors after the
Closing Date, (c) the proceeds of which are used to fund Investments permitted
by Section 7.02 or (d) issued as compensation to employees or consultants of
Holdings, the U.S. Borrower or any of its Restricted Subsidiaries or to
management of Holdings, the U.S. Borrower or any of its Restricted Subsidiaries
in the ordinary course of business.
"SPECIFIED ISSUANCE PROCEEDS" means the Net Cash Proceeds of
(a) Permitted Equity Issuances (other than Permitted Cure Issuances) to the
Equity Investors or to other Persons making additional equity investments
together with the Equity Investors after the Closing Date, (b) the issuance of
Permitted Holdco Debt after the Closing Date and (c) the
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issuance of Permitted Subordinated Indebtedness by the U.S. Borrower, provided,
in the case of clauses (a) and (b), such Net Cash Proceeds shall have been
actually received by the U.S. Borrower (through capital contributions of such
Net Cash Proceeds by Holdings to the U.S. Borrower).
"SPECIFIED TRANSACTION" means, for any applicable period, the
following transactions: (a) any Permitted Acquisition or any Investment (or
series of related Investments) made pursuant to Section 7.02(n) to the extent
consisting of the contribution(s) or other transfer(s) of any property (other
than cash) to a Joint Venture for consideration less than the fair market value
of such property, (b) any Material Dispositions and (c) any redesignation of any
Unrestricted Subsidiary as a Restricted Subsidiary.
"SPONSOR" means Xxxxxx X. Xxx Partners, L.P. and its
Affiliates.
"SPONSOR MANAGEMENT AGREEMENT" means the Management Agreement
dated the Closing Date between THL Managers V, LLC and Holdings, as amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, but only to the extent permitted under the terms of the Loan
Documents.
"SUBSIDIARY" of a Person means a corporation, partnership,
joint venture, limited liability company or other business entity of which a
majority of the shares of securities or other interests having ordinary voting
power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a
Subsidiary or Subsidiaries of the U.S. Borrower.
"SUPER MAJORITY LENDERS" shall have the meaning assigned to
such term in Section 10.01.
"SUPPLEMENTAL ADMINISTRATIVE AGENT" has the meaning specified
in Section 9.13 and "SUPPLEMENTAL ADMINISTRATIVE AGENTS" shall have the
corresponding meaning.
"SURVIVING CORPORATION" has the meaning specified in the
Preliminary Statements to this Agreement.
"SWAP CONTRACT" means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate transactions,
commodity swaps, commodity options, forward commodity contracts, equity or
equity index swaps or options, bond or bond price or bond index swaps or options
or forward bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap transactions,
floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any
other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and (b) any and
all transactions of any kind, and the related confirmations, which are subject
to the
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terms and conditions of, or governed by, any form of master agreement published
by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement (any such
master agreement, together with any related schedules, a "MASTER AGREEMENT"),
including any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan
pursuant to Section 2.04.
"SWING LINE LENDER" means the U.S. Swing Line Lender or the
Canadian Swing Line Lender, as applicable.
"SWING LINE LOAN" has the meaning set forth in Section
2.04(a)(ii).
"SWING LINE NOTICE" means a notice of a Swing Line Borrowing
pursuant to Section 2.04(b), which, if in writing, shall be substantially in the
form of Exhibit B-1, with respect to any U.S. Swing Line Borrowing or Exhibit
B-2, with respect to any Canadian Swing Line Borrowing.
"SYNDICATION AGENT" means Credit Suisse First Boston, acting
through its Cayman Islands Branch, as Syndication Agent under the Loan
Documents.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of
a Person under a so-called synthetic, off-balance sheet or tax retention lease.
"TARGET COMPANY" has the meaning specified in the Preliminary
Statements to this Agreement.
"TAX REDUCTION AMOUNT" has the meaning set forth in Section
7.06(d)(ii)(B).
"TAXES" has the meaning specified in Section 3.01(a).
"TERM BORROWING" means a borrowing consisting of simultaneous
Term Loans of the same Type and, in the case of Eurodollar Rate Loans, having
the same Interest Period made by each of the Term Lenders pursuant to Section
2.01(a).
"TERM COMMITMENT" means, as to each Term Lender, its
obligation to make Term Loans to the U.S. Borrower pursuant to Section 2.01(a)
in an aggregate principal amount at
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any one time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.01 under the caption "Term Commitment" or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. The aggregate Commitment of all Term Lenders shall be
$700,000,000 on the Closing Date, as such amount may be adjusted from time to
time in accordance with the terms of this Agreement.
"TERM COMMITMENTS INCREASE EFFECTIVE DATE" has the meaning set
forth in Section 2.14(b).
"TERM FACILITY" means, at any time, (a) prior to the initial
advance of the Term Loans, the aggregate Term Commitments of all Term Lenders at
such time, and (b) thereafter, the aggregate Term Loans of all Lenders at such
time.
"TERM LENDER" means, at any time, any Lender that has a Term
Commitment at such time.
"TERM LOAN" means an advance made by any Term Lender under the
Term Facility.
"TERM NOTE" means a promissory note of the U.S. Borrower
payable to any Term Lender or its registered assigns, in substantially the form
of Exhibit C-1 hereto, evidencing the aggregate indebtedness of the U.S.
Borrower to such Term Lender resulting from the Term Loans made by such Term
Lender.
"THRESHOLD AMOUNT" means $20,000,000.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of
all Loans and all L/C Obligations.
"TRANCHE" means, as the context may require, the Loans
constituting Term Loans, U.S. Revolving Credit Loans or Canadian Loans.
"TRANSACTION" means, collectively, (a) the Equity
Contributions, (b) the Acquisition, the First Merger and the Second Merger, (c)
the refinancing of, and termination of all outstanding Indebtedness of the
Target Company and its Subsidiaries (other than Indebtedness permitted by
Section 7.03), (d) the issuance and sale of the Senior Subordinated Notes, (e)
the funding of the Term Loans, (f) the execution and effectiveness of the
supplemental indentures on the terms described in the Offer to Purchase to each
Existing Indenture by the Target or Nortek, Inc., as applicable, and the
applicable trustees, (g) the consummation of any other transactions in
connection with the foregoing, and (h) the payment of the fees and expenses
incurred in connection with any of the foregoing.
"TYPE" means, with respect to a Loan, its character as a Base
Rate Loan, Canadian BA Rate Loan or a Eurodollar Rate Loan.
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"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as
the same may from time to time be in effect in the State of New York or the
Uniform Commercial Code (or similar code or statute) of another jurisdiction, to
the extent it may be required to apply to any item or items of Collateral.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning set forth in Section
2.03(c)(i).
"UNRESTRICTED CASH" means any cash or Cash Equivalents that
would not be required to be classified as restricted cash on a balance sheet
prepared in accordance with GAAP.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the U.S.
Borrower, that, at the time of determination, shall be an Unrestricted
Subsidiary (as designated by the board of directors of the U.S. Borrower, as
provided below). The board of directors of the U.S. Borrower may designate any
Subsidiary of the U.S. Borrower (including any newly acquired or newly formed
Subsidiary at or prior to the time it is so formed or acquired), to be an
Unrestricted Subsidiary if (a) no Default is existing or will occur as a
consequence thereof, (b) such Subsidiary does not own any Equity Interest of, or
own or hold any Lien on any property of, the U.S. Borrower or any of its
Subsidiaries (other than Unrestricted Subsidiaries), (c) such Subsidiary and
each of its Subsidiaries does not have at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee, or otherwise become
directly or indirectly liable with respect to, any Indebtedness pursuant to
which the lender has recourse to any property of the U.S. Borrower or any of its
Subsidiaries (other than Unrestricted Subsidiaries) except that, subject to
Section 7.02 and Section 7.03, the U.S. Borrower and its Restricted Subsidiaries
may have Investments by way of Guarantee of up to $50,000,000 of obligations
with respect to Indebtedness of Unrestricted Subsidiaries in the aggregate at
any time outstanding, and (d) either (A) at the time of such designation such
Subsidiary shall not have more than de minimis assets or (B) the U.S. Borrower
shall be permitted to make an Investment in such Subsidiary in an amount equal
to the fair market value of the U.S. Borrower's and its Restricted Subsidiaries'
Equity Interests in such Subsidiary pursuant to Section 7.02(o). Any Subsidiary
of an Unrestricted Subsidiary shall be an Unrestricted Subsidiary for purposes
of this Agreement. The board of directors of the U.S. Borrower may redesignate
an Unrestricted Subsidiary of the U.S. Borrower to be a Restricted Subsidiary if
(a) no Default is existing or will occur as a consequence thereof, (b) such
Subsidiary is a wholly owned Subsidiary and becomes a party to applicable
Guaranty and Security Agreement, (iii) after giving effect to such redesignation
and the incurrence of any Indebtedness incurred by such Subsidiary since the
last day of the immediately preceding fiscal quarter on a Pro Forma Basis as if
it was incurred on the first day of the immediately preceding fiscal quarter
(but tested as if the applicable ratio were the ratio for the next succeeding
fiscal quarter), the U.S. Borrower would be in compliance with Sections 7.11 and
7.18, inclusive, and (iv) all Indebtedness, Liens and Investments of such
Subsidiary outstanding immediately after such designation would, if incurred at
such time, have been permitted to be incurred (and shall be deemed to have been
incurred) for all purposes of this Agreement. Each such designation shall be
evidenced by filing with the applicable Administrative Agent a certified copy of
the resolution giving effect to such designation and an officer's certificate
certifying that such designation
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complied with the foregoing conditions. Any reference herein to an Unrestricted
Subsidiary of Holdings shall be deemed to be a reference to an Unrestricted
Subsidiary of U.S. Borrower.
"U.S. ADMINISTRATIVE AGENT" means UBS AG, Stamford Branch in
its capacity as U.S. Administrative Agent under any of the Loan Documents, or
any successor in such capacity.
"U.S. ADMINISTRATIVE AGENT'S OFFICE" means the U.S.
Administrative Agent's address and, as appropriate, account as set forth on
Schedule 10.02, or such other address or account as the U.S. administrative
agent may from time to time notify the U.S. Borrower and the Lenders.
"U.S. BORROWER" is defined in the preamble.
"U.S. COLLATERAL" means all assets and property and interests
therein upon which a Lien is granted to the U.S. Administrative Agent pursuant
to any Loan Document that are or are required under the terms of the Loan
Documents to be subject to Liens in favor of the U.S. Administrative Agent for
the benefit of the Secured Parties.
"U.S. COMMITMENT FEE" has the meaning specified Section
2.09(a).
"U.S. COMMITMENTS" means the Term Loan Commitments and the
U.S. Revolving Credit Commitments.
"U.S. CUSTODIAN" has the meaning specified in Section 9.01(e).
"U.S. DOLLAR EQUIVALENT" means, on any Revaluation Date,
relative to any amount (the "ORIGINAL AMOUNT") expressed in Canadian Dollars,
the amount expressed in Dollars which would be required to buy the Original
Amount of Canadian Dollars using the noon spot rate exchange for Canadian
interbank transactions applied in converting Dollars into Canadian Dollars
determined by the Canadian Administrative Agent (or with respect to any Canadian
Letter of Credit by the Canadian L/C Issuer) for such Revaluation Date.
"U.S. EXISTING LETTERS OF CREDIT" means the Letters of Credit
previously issued for the account of the U.S. Borrower or any Subsidiary of the
U.S. Borrower described on Schedule 1.01(b) under the heading "Existing Letters
of Credit under the U.S. Revolving Credit Facility".
"U.S. FACILITY" means the Term Facility, the U.S. Revolving
Credit Facility, the U.S. Swing Line Sublimit or the U.S. Letter of Credit
Sublimit, as the context may require.
"U.S. FONDE DE POUVOIR" has the meaning specified in Section
9.01(e).
"U.S. L/C ISSUER" means Bank of America, N.A., in its capacity
as issuer of U.S. Letters of Credit hereunder, or any successor issuer of U.S.
Letters of Credit hereunder and solely with respect to the U.S. Existing Letters
of Credit (and any amendment, renewal or extension thereof in accordance with
this Agreement), Fleet National Bank.
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"U.S. LENDER" is defined in the preamble or, solely for
purposes of Section 10.15(b), as defined therein.
"U.S. LETTER OF CREDIT" means a Letter of Credit issued under
the U.S. Revolving Credit Facility.
"U.S LETTER OF CREDIT SUBLIMIT" means an amount equal to
$40,000,000. The U.S Letter of Credit Sublimit is part of, and not in addition
to, the U.S. Revolving Credit Facility.
"U.S. LOAN" means an extension of credit by a Lender to a U.S.
Borrower under Article II in the form of a Term Loan, a U.S. Revolving Credit
Loan or a U.S. Swing Line Loan.
"U.S. LOAN PARTY" means the U.S. Borrower, Holdings and each
U.S. Subsidiary Guarantor.
"U.S. PLEDGED DEBT" has the meaning specified in the U.S.
Security Agreement.
"U.S. REVOLVING CREDIT BORROWING" means a borrowing consisting
of simultaneous U.S. Revolving Credit Loans of the same Type and Tranche and, in
the case of Eurodollar Rate Loans, having the same Interest Period made by each
of the U.S. Revolving Credit Lenders pursuant to Section 2.01(b).
"U.S. REVOLVING CREDIT COMMITMENT" means, as to each U.S.
Revolving Credit Lender, its obligation to (a) make U.S. Revolving Credit Loans
to the U.S. Borrower pursuant to Section 2.01(b), (b) purchase participations in
L/C Obligations with respect to U.S. Letters of Credit, and (c) purchase
participations in U.S. Swing Line Loans, in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 2.01 under the caption "U.S. Revolving Credit Commitment" or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement. The aggregate Commitment of all U.S. Revolving
Credit Lenders shall be $90,000,000 on the Closing Date, as such amount may be
adjusted from time to time in accordance with the terms of this Agreement.
"U.S. REVOLVING CREDIT EXPOSURE" means, with respect to any
U.S. Revolving Lender at any time, the Outstanding Amount of such Lender's U.S.
Revolving Credit Loans plus such Lender's Pro Rata Share of the Outstanding
Amount of L/C Obligations with respect to U.S. Letters of Credit plus such
Lender's Pro Rata Share of the Outstanding Amount of U.S. Swing Line Loans.
"U.S. REVOLVING CREDIT FACILITY" means, at any time, the
aggregate amount of the U.S. Revolving Credit Lenders' U.S. Revolving Credit
Commitments at such time.
"U.S. REVOLVING CREDIT LENDER" means, at any time, any Lender
that has a U.S. Revolving Credit Commitment at such time.
"U.S. REVOLVING CREDIT LOAN" has the meaning specified in
Section 2.01(b).
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"U.S. REVOLVING CREDIT NOTE" means a promissory note of the
U.S. Borrower payable to any U.S. Revolving Credit Lender or its registered
assigns, in substantially the form of Exhibit C-2 hereto, evidencing the
aggregate indebtedness of the U.S. Borrower to such U.S. Revolving Credit Lender
resulting from the U.S. Revolving Credit Loans made by such U.S. Revolving
Credit Lender.
"U.S. SECURITY AGREEMENT" means, collectively, the U.S.
Security Agreement executed by the U.S. Loan Parties, substantially in the form
of Exhibit G-1, together with each other security agreement supplement executed
and delivered pursuant to Section 6.12.
"U.S. SUBSIDIARY GUARANTOR" means, collectively, the U.S.
Subsidiaries of the U.S. Borrower that are Guarantors.
"U.S. SUBSIDIARY GUARANTY" means, collectively, the U.S.
Subsidiary Guaranty made by the U.S. Subsidiary Guarantors in favor of the U.S.
Administrative Agent on behalf of the Lenders, substantially in the form of
Exhibit F-2, together with each other guaranty and guaranty supplement delivered
pursuant to Section 6.12.
"U.S. SUPPLEMENTAL ADMINISTRATIVE AGENT" has the meaning
specified Section 9.13.
"U.S. SWING LINE LENDER" means UBS Loan Finance LLC in its
capacity as provider of U.S. Swing Line Loans, or any successor swing line
lender hereunder.
"U.S. SWING LINE LOAN" has the meaning specified in Section
2.04(a).
"U.S. SWING LINE SUBLIMIT" means an amount equal to the lesser
of (a) $10,000,000 and (b) the U.S. Revolving Credit Commitments. The U.S. Swing
Line Sublimit is part of, and not in addition to, the U.S. Revolving Credit
Commitments.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing: (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment; by (ii) the then outstanding principal
amount of such Indebtedness.
"WHOLLY OWNED" means, with respect to a Subsidiary of a
Person, a Subsidiary of such Person all of the outstanding Equity Interests of
which (other than (x) director's qualifying shares and (y) shares issued to
foreign nationals to the extent required by applicable law) are owned by such
Person and/or by one or more wholly owned Subsidiaries of such Person.
"WORKING CAPITAL" means, with respect to each Borrower and its
Subsidiaries, at of any date, the excess of Consolidated Current Assets on such
date over Consolidated Current Liabilities on such date.
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1.02 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) (i) The words "herein," "hereto," "hereof" and "hereunder"
and words of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical
or electronic form.
(c) 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) Section headings herein and in the other Loan Documents
are included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein. All references herein to
specified opinions, statements or pronouncements of the Financial Accounting
Standards Board or any other accounting body will be deemed to include all
opinions, statements or pronouncements replacing, amending or supplementing such
specified opinions, statements or pronouncements.
(b) If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan
Document, and either the U.S. Borrower or the Required Lenders shall so request,
the U.S. Administrative Agent and the U.S. Borrower shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and
(ii) the U.S. Borrower shall provide to the U.S. Administrative Agent and the
Lenders a written reconciliation in form and substance reasonably satisfactory
to the U.S. Administrative Agent, between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
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1.04 Rounding. Any financial ratios required to be calculated
by the U.S. Borrower pursuant to this Agreement shall be calculated by dividing
the appropriate component by the other component, carrying the result to one
place more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 References to Agreements and Laws. Unless otherwise
expressly provided herein, (a) references to Organization Documents, agreements
(including the Loan Documents) and other contractual instruments shall be deemed
to include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are permitted by
any Loan Document; and (b) references to any Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.06 Times of Day. Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).
1.07 Timing of Payment or Performance. When the payment of any obligation or the
performance of any covenant, duty or obligation is stated to be due or
performance required on a day which is not a Business Day, the date of such
payment (other than as described in the definition of Interest Period) or
performance shall extend to the immediately succeeding Business Day.
1.08 Currency Equivalents Generally. Any amount specified in
this Agreement (other than in Articles II, IX and X) or any of the other Loan
Documents to be in Dollars shall also include the equivalent of such amount in
any currency other than Dollars, such equivalent amount to be determined at the
rate of exchange quoted by UBS AG, Stamford Branch, at the close of business on
the Business Day immediately preceding any date of determination thereof, to
prime banks in New York, New York for the spot purchase in the New York foreign
exchange market of such amount in Dollars with such other currency. Any amount
of the Canadian Obligations with respect to Canadian Loans or Canadian Letters
of Credit which are denominated in Canadian Dollars shall be converted to
Dollars for purposes of determining compliance with this Agreement at the U.S.
Dollar Equivalent thereof as of the most recent Revaluation Date. Unless
otherwise specified herein, the amount of a Letter of Credit denominated in
Canadian Dollars at any time shall be deemed to be the Dollar Equivalent of the
stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the
terms of any agreement entered into with the L/C Issuer related thereto,
provides for one or more automatic increases in the stated amount thereof, the
amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
1.09 Specified Transactions. Notwithstanding anything to the
contrary herein, solely for purposes of determining the Holdings Consolidated
Leverage Ratio, the Interest Coverage Ratio and the Leverage Ratio with respect
to any period during which any Specified Transaction occurs, such ratios shall
be calculated with respect to such period and such Specified
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Transaction (and all other Specified Transactions that have been consummated
during such period) on a Pro Forma Basis.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans.
(a) The Term Borrowings. Subject to the terms and conditions
set forth herein, each Term Lender severally agrees to make a single loan
(consisting of a Term Loan) in Dollars in an amount equal to its Pro Rata Share
of the Term Facility (but in any event, not to exceed such Term Lender's Term
Commitment) to the U.S. Borrower on the Closing Date. The Term Loans shall be
made simultaneously by the Term Lenders in accordance with their respective Pro
Rata Shares of the Term Facility. Amounts borrowed under this Section 2.01(a)
and repaid or prepaid may not be reborrowed. Term Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.
(b) The Revolving Credit Borrowings. Subject to the terms and
conditions set forth herein, (i) each U.S. Revolving Credit Lender severally
agrees to make loans denominated in Dollars (each such loan, a "U.S. REVOLVING
CREDIT LOAN") to the U.S. Borrower from time to time, on any Business Day until
the Maturity Date, in an aggregate amount not to exceed at any time outstanding
the amount of such Lender's U.S. Revolving Credit Commitment; provided, however,
that after giving effect to any Revolving Credit Borrowing, (A) on the Closing
Date, the aggregate Revolving Credit Exposure (other than L/C Obligations under
the Existing Letters of Credit), shall not exceed $10,000,000, and (B) the U.S.
Revolving Credit Exposure of each U.S. Lender, shall not exceed such Lender's
U.S. Revolving Credit Commitment, and (ii) each Canadian Lender severally agrees
that it will make loans denominated in U.S. Dollars or Canadian Dollars or
accept Canadian BAs (relative to such Lender, its "CANADIAN LOANS") to any
Canadian Borrower from time to time, on any Business Day prior to the Maturity
Date; provided, however, that after giving effect to any Canadian Borrowing, the
Canadian Exposure of each Canadian Lender, shall not exceed such Canadian
Lender's Canadian Credit Commitment. Within the limits of the applicable
Revolving Credit Commitments, and subject to the other terms and conditions
hereof, the Borrowers may borrow under this Section 2.01(b), prepay (except in
the case of Canadian BAs) under Section 2.05, and reborrow under this Section
2.01(b). U.S. Revolving Credit Loans shall be Base Rate Loans or Eurodollar Rate
Loans and Canadian Loans shall be Base Rate Loans, Eurodollar Rate Loans (with
respect to Dollar denominated Canadian Loans only) or Canadian BA Rate Loans.
2.02 Borrowings, Conversions and Continuations of Loans. (a)
Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term
Loans or Revolving Credit Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the applicable
Borrower's irrevocable notice to the applicable Administrative Agent, which may
be given by telephone. Each such notice must be received by the applicable
Administrative Agent not later than 12:30 p.m. (New York City time) (i) three
(3) Business Days prior to the requested date of any Borrowing of or
continuation of Eurodollar Rate Loans or any conversion of Base Rate Loans to
Eurodollar Rate Loans, and (ii) one (1) Business Day before the requested date
of any Borrowing of Base Rate Loans. Each telephonic notice by the
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applicable Borrower pursuant to this Section 2.02(a) must be confirmed promptly
by delivery to the applicable Administrative Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the
applicable Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof
(or in the case of Canadian Loans denominated in Canadian Dollars, Cdn$500,000
or a whole multiple of Cdn$100,000 in excess thereof). Each Committed Loan
Notice (whether telephonic or written) shall specify the Borrower requesting
such Borrowing and (i) whether such Borrower is requesting a Term Borrowing, a
U.S. Revolving Credit Borrowing, a Canadian Loan, a conversion of Term Loans,
U.S. Revolving Credit Loans or Canadian Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or continued (and
in the case of any Canadian Loan, the currency thereof), (iv) the Type of Loans
to be borrowed or to which existing Term Loans, U.S. Revolving Credit Loans or
Canadian Loans are to be converted, (v) if applicable, the duration of the
Interest Period with respect thereto (which shall be a period permitted by the
definition of "Interest Period"), (vi) the location and number of the applicable
Borrower's account to which funds are to be disbursed and (vii) that the
conditions specified in clauses (a) through (c) of Section 4.02 (and, in the
case of the initial Credit Extension, the conditions set forth in Section 4.01)
have been satisfied as of the date of such notice. If the applicable Borrower
fails to specify a Type of Loan in a Committed Loan Notice or if the applicable
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Term Loans, U.S. Revolving Credit Loans or Canadian Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans or Canadian BA Rate Loans. If a Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one (1) month. If a Canadian Borrower requests a
Borrowing of, conversion to, or continuation of Canadian BA Rate Loans in any
such Committed Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of thirty (30) days.
(b) Following receipt of a Committed Loan Notice, the
applicable Administrative Agent shall promptly notify each applicable Lender of
the amount of its Pro Rata Share of the Term Loans, U.S. Revolving Credit Loans
or Canadian Loans to be made, and if no timely notice of a conversion or
continuation is provided by the applicable Borrower, the applicable
Administrative Agent shall notify each applicable Lender of the details of any
automatic conversion to Base Rate Loans described in Section 2.02(a). In the
case of a Term Loan Borrowing or a Revolving Credit Borrowing, each applicable
Lender shall make the amount of its Loan available to the applicable
Administrative Agent in immediately available funds at the applicable
Administrative Agent's Office not later than 1:00 p.m. (New York City time) on
the Business Day specified in the applicable Committed Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the applicable
Administrative Agent shall make all funds
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so received available to the applicable Borrower in like funds as received by
the applicable Administrative Agent either by (i) crediting the account of the
applicable Borrower on the books of the applicable Administrative Agent with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
applicable Administrative Agent by the applicable Borrower in the Committed Loan
Notice; provided, however, that if, on the date the Committed Loan Notice with
respect to such Borrowing is given by the applicable Borrower, there are Swing
Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing
shall be applied, first, to the payment in full of any such L/C Borrowings of
such Borrower, second, to the payment in full of any such Swing Line Loans of
such Borrower, and third, to the applicable Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate
Loan may be continued or converted only on the last day of an Interest Period
for such Eurodollar Rate Loan unless the applicable Borrower pays the amount due
under Section 3.05 in connection therewith. During the existence of an Event of
Default, no Loans may be requested as, converted to or continued as Eurodollar
Rate Loans without the consent of the Requisite Class Lenders.
(d) The applicable Administrative Agent shall promptly notify
the applicable Borrower and the applicable Lenders of the interest rate
applicable to any Interest Period for Eurodollar Rate Loans upon determination
of such interest rate. The determination of the Eurodollar Rate by the
applicable Administrative Agent shall be conclusive in the absence of manifest
error. At any time that Base Rate Loans are outstanding, the applicable
Administrative Agent shall notify the applicable Borrower and the applicable
Lenders of any change in the applicable Administrative Agent's corporate base
rate (or other reference rate) used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Term Borrowings, all Revolving
Credit Borrowings, all conversions of Term Loans or Revolving Credit Loans from
one Type to the other, and all continuations of Term Loans or Revolving Credit
Loans as the same Type, there shall not be more than fifteen (15) Interest
Periods in effect.
(f) The failure of any Lender to make the Loan to be made by
it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Loan on the date of such Borrowing,
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 the date of any Borrowing.
(g) If a Canadian Borrower has, by delivery of a Committed
Loan Notice to the Canadian Administrative Agent in accordance with this Section
2.02, requested the Canadian Lenders to accept its drafts to replace all or a
portion of an outstanding Canadian Loan, then each Canadian Lender shall, on the
date of conversion or continuation, as applicable, and concurrent with the
payment by such Canadian Borrower to the Canadian Administrative Agent on behalf
of the Canadian Lenders of an amount equal to the difference between the
principal or face amount of such outstanding Canadian Loan or the portion
thereof which is being converted or continued and the aggregate Notional BA
Proceeds with respect to the drafts to be accepted by the Canadian Lenders,
accept the Canadian Borrower's draft or drafts having an aggregate face amount
equal to its Pro Rata Share of the aggregate principal or face amount of such
Canadian
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Loan or the portion thereof which is being converted or continued, such
acceptance to be in accordance with Section 2.16.
(h) If a Canadian Borrower has, by giving notice to the
Canadian Administrative Agent in accordance with this Section 2.02, requested a
Canadian Lender to convert all or a portion of outstanding maturing Canadian BAs
into a Canadian Prime Rate Loan, such Canadian Lender shall, upon the end of the
current Interest Period with respect to such Canadian BAs and the payment by
such Canadian Lender to the holders of such Canadian BAs of the aggregate face
amount thereof, be deemed to have made to such Canadian Borrower the Canadian
Prime Rate Loan into which the matured Canadian BAs or a portion thereof are
converted in the aggregate principal amount equal to its Pro Rata Share of the
aggregate face amount of the matured Canadian BAs or the portion thereof which
are being converted.
2.03 Letters of Credit.
(a) The Letter of Credit Commitment. (i) Subject to the terms
and conditions set forth herein, (A) the U.S. L/C Issuer agrees, in reliance
upon the agreements of the other U.S. Revolving Credit Lenders set forth in this
Section 2.03, (1) from time to time on any Business Day during the period from
the Closing Date until the Letter of Credit Expiration Date, to issue U.S.
Letters of Credit denominated in Dollars for the account of the U.S. Borrower
(or any Subsidiary, subject to clause (G) of Section 2.03(b)(i)) and to amend or
renew U.S. Letters of Credit previously issued by it, in accordance with Section
2.03(b), and (2) to honor drafts under the U.S. Letters of Credit; (B) the U.S.
Revolving Credit Lenders severally agree to participate in U.S. Letters of
Credit issued for the account of the U.S. Borrower; provided that the U.S. L/C
Issuer shall not be obligated to make any L/C Credit Extension with respect to
any U.S. Letter of Credit, and no Lender shall be obligated to participate in
any U.S. Letter of Credit if as of the date of such L/C Credit Extension, (x)
the aggregate U.S. Revolving Credit Exposure of any U.S. Revolving Credit Lender
would exceed such Lender's U.S. Revolving Credit Commitment, or (y) the
Outstanding Amount of the L/C Obligations with respect to U.S. Letters of Credit
would exceed the U.S. Letter of Credit Sublimit; (C) the Canadian L/C Issuer
agrees, in reliance upon the agreements of the other Canadian Lenders set forth
in this Section 2.03, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to
issue Canadian Letters of Credit denominated in Dollars or Canadian Dollars for
the account of any Canadian Borrower and to amend or renew Canadian Letters of
Credit previously issued by it, in accordance with Section 2.03(b), and (2) to
honor drafts under the Canadian Letters of Credit; and (D) the Canadian Lenders
severally agree to participate in Canadian Letters of Credit issued for the
account of the Canadian Borrowers; provided that the Canadian L/C Issuer shall
not be obligated to make any L/C Credit Extension with respect to any Canadian
Letter of Credit, and no Lender shall be obligated to participate in any
Canadian Letter of Credit if as of the date of such L/C Credit Extension, the
aggregate Canadian Exposure of any Lender would exceed such Lender's Canadian
Credit Commitment. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrowers' ability to obtain Letters of Credit shall be
fully revolving, and accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. Each of the Existing Letters of Credit
shall be deemed to be a U.S. Letter of Credit
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issued hereunder for all purposes of the Loan Documents and from and after the
Closing Date shall be subject to and governed by the terms and conditions
hereof.
(ii) No L/C Issuer shall be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain such L/C Issuer from issuing such Letter of Credit, or any Law
applicable to such L/C Issuer or any request or directive (whether or
not having the force of law) from any Governmental Authority with
jurisdiction over such L/C Issuer shall prohibit, or request that such
L/C Issuer refrain from, the issuance of letters of credit generally or
such Letter of Credit in particular or shall impose upon such L/C
Issuer with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which such L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon such L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which, in each case,
such L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the applicable Requisite
Class Lenders and such L/C Issuer have approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Revolving Credit Lenders and such L/C Issuer have approved such expiry
date;
(D) the issuance of such Letter of Credit would violate one or
more policies of such L/C Issuer; or
(E) such Letter of Credit is in an initial amount less than
$250 (or, in the case of any Canadian Letter of Credit denominated in
Canadian Dollars, Cdn$250), in the case of a commercial Letter of
Credit, or $250 (or, in the case of any Canadian Letter of Credit
denominated in Canadian Dollars, Cdn$250), in the case of a standby
Letter of Credit, or is to be denominated in a currency other than
Dollars (with respect to U.S. Letter of Credit) or Dollars or Canadian
Dollars (with respect to any Canadian Letter of Credit).
(iii) No L/C Issuer shall be under any obligation to amend any
Letter of Credit if (A) such L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed amendment
to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of
Credit; Auto-Renewal Letters of Credit. (i) Each Letter of Credit shall be
issued or amended, as the case may be, upon the request of the applicable
Borrower delivered to the applicable L/C Issuer (with a copy to the applicable
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of such Borrower.
Such Letter of
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Credit Application must be received by the applicable L/C Issuer and the
applicable Administrative Agent not later than 12:30 p.m. (New York City time)
at least two (2) Business Days (or such later date and time as such L/C Issuer
may agree in a particular instance in its sole discretion) prior to the proposed
issuance date or date of amendment, as the case may be. In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to the applicable L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof
(which shall not be later than the Letter of Credit Expiration Date); (D) the
name and address of the beneficiary thereof; (E) the documents to be presented
by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
thereunder; (G) whether such Letter of Credit is to be issued for its own
account or for the account of one of its Subsidiaries; provided that the U.S.
Borrower shall be liable with respect to each Letter of Credit issued for the
account of a Subsidiary; (H) in the case of any Canadian Letter of Credit,
whether such Letter of Credit is to be denominated in Dollars or Canadian
Dollars; and (I) such other matters as the applicable L/C Issuer may reasonably
request. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the applicable L/C Issuer (A) the Letter of Credit to
be amended; (B) the proposed date of amendment thereof (which shall be a
Business Day); (C) the nature of the proposed amendment; and (D) such other
matters as the applicable L/C Issuer may reasonably request. If requested by the
applicable L/C Issuer, the applicable Borrower shall also submit a letter of
credit application on the applicable L/C Issuer's standard form in connection
with any request for the issuance or amendment of a Letter of Credit.
(ii) Promptly after receipt of any Letter of Credit
Application, the applicable L/C Issuer will confirm with the applicable
Administrative Agent (by telephone or in writing) that such Administrative Agent
has received a copy of such Letter of Credit Application from the applicable
Borrower and, if not, the applicable L/C Issuer will provide such Administrative
Agent with a copy thereof. Upon receipt by the applicable L/C Issuer of
confirmation from the applicable Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof, then,
subject to the terms and conditions hereof, the applicable L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the applicable
Borrower or enter into the applicable amendment, as the case may be. Immediately
upon the issuance of each U.S. Letter of Credit, each U.S. Revolving Credit
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the U.S. L/C Issuer a risk participation in such Letter of Credit
in an amount equal to the product of such Lender's Pro Rata Share times the
amount of such U.S. Letter of Credit and immediately upon the issuance of each
Canadian Letter of Credit, each Canadian Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Canadian L/C
Issuer, a risk participation in such Letter of Credit in an amount equal to the
product of such Lender's Pro Rata Share times the amount of such Canadian Letter
of Credit.
(iii) If a Borrower so requests in any applicable Letter of
Credit Application, the applicable L/C Issuer may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an "AUTO-RENEWAL LETTER OF CREDIT"); provided that any such
Auto-Renewal Letter of Credit must permit such L/C Issuer to prevent any such
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renewal at least once in each twelve-month period (commencing with the date of
issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the "NONRENEWAL NOTICE DATE") in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the applicable L/C Issuer, the applicable
Borrower shall not be required to make a specific request to the applicable L/C
Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has been
issued, the applicable Lenders shall be deemed to have authorized (but may not
require) the applicable L/C Issuer to permit the renewal of such Letter of
Credit at any time to an expiry date not later than the earlier of (x) one year
from the date of such renewal and (y) the Letter of Credit Expiration Date;
provided, however, that no L/C Issuer shall permit any such renewal if (A) such
L/C Issuer has determined that it would have no obligation at such time to issue
such Letter of Credit in its renewed form under the terms hereof (by reason of
the provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
five (5) Business Days before the Nonrenewal Notice Date (1) from any
Administrative Agent that the Required Lenders have elected not to permit such
renewal or (2) from any Administrative Agent, any Lender or any Borrower that
one or more of the applicable conditions specified in Section 4.02 are not then
satisfied.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, each L/C Issuer will also deliver to the applicable
Borrower and each Administrative Agent a true and complete copy of such Letter
of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the applicable L/C Issuer shall notify the
U.S. Borrower and the applicable Administrative Agent thereof. In the case of a
Letter of Credit denominated in Canadian Dollars (other than the Canadian
Existing Letter of Credit, which unless the Canadian L/C Issuer otherwise
specified, shall be reimbursed by the U.S. Borrower in Dollars based on the
Dollar Equivalent), the applicable Borrower shall reimburse the Canadian L/C
Issuer in Canadian Dollars, unless (A) the Canadian L/C Issuer (at its option)
shall have specified in such notice that it will require reimbursement in
Dollars, or (B) in the absence of any such requirement for reimbursement in
Dollars, the applicable Borrower shall have notified the Canadian L/C Issuer
promptly following receipt of the notice of drawing that such Borrower will
reimburse the Canadian L/C Issuer in Dollars. In the case of any such
reimbursement in Dollars of a drawing under a Canadian Letter of Credit
denominated in Canadian Dollars, the Canadian L/C Issuer shall notify the
applicable Canadian Borrower (or the U.S. Borrower with respect to the Canadian
Existing Letter of Credit) of the Dollar Equivalent of the amount of the drawing
promptly following the determination thereof. Not later than 11:00 a.m. (New
York City time) on the date of any payment by the applicable L/C Issuer under a
Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date
of any payment by such L/C Issuer under a Letter of Credit to be reimbursed in
Canadian Dollars (each such date, an "HONOR DATE"), the applicable Borrower
shall reimburse the applicable L/C Issuer through the applicable Administrative
Agent in an amount equal to the amount of such drawing and in the applicable
currency. If the applicable Borrower fails to so reimburse such L/C Issuer by
such time, such Administrative Agent shall promptly notify each applicable
Lenders of the Honor Date, the
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amount of the unreimbursed drawing (expressed in Dollars in the amount of the
Dollar Equivalent thereof in the case of a Letter of Credit denominated in
Canadian Dollars) (the "UNREIMBURSED AMOUNT"), and the amount of such Lender's
Pro Rata Share thereof. In such event, the applicable Borrower shall be deemed
to have requested a Committed Borrowing of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal amount of
Base Rate Loans, but subject to the amount of the unutilized portion of the
applicable Revolving Credit Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Committed Loan Notice). Any notice given by
an L/C Issuer or Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack
of such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Each U.S. Revolving Credit Lender (including the Lender
acting as U.S. L/C Issuer) shall upon any notice pursuant to Section 2.03(c)(i)
make funds available to the U.S. Administrative Agent for the account of the
U.S. L/C Issuer at the U.S. Administrative Agent's Office in an amount equal to
its Pro Rata Share of the Unreimbursed Amount with respect to any U.S. Letter of
Credit not later than 2:00 p.m. (New York City time) on the Business Day on
which such notice is provided (or, if such Lender has received such notice later
than 12:00 noon (New York City time) on any day, no later than 11:00 a.m. (New
York City time) on the immediately following Business Day), whereupon, subject
to the provisions of Section 2.03(c)(iii), each U.S. Revolving Credit Lender
that so makes funds available shall be deemed to have made a Base Rate Loan to
the U.S. Borrower in such amount. Each Canadian Lender (including the Canadian
Lender acting as Canadian L/C Issuer) shall upon any notice pursuant to Section
2.03(c)(i) make funds in the applicable currency (which, in the case of the
Canadian Existing Letter of Credit, unless otherwise specified by the Canadian
L/C Issuer, shall be Dollars based on the Dollar Equivalent thereof) available
to the Canadian Administrative Agent for the account of the Canadian L/C Issuer
at the Canadian Administrative Agent's Office in an amount equal to its Pro Rata
Share of the Unreimbursed Amount with respect to any Canadian Letter of Credit
not later than 2:00 p.m. (New York City time) on the Business Day on which such
notice is provided (or, if such Lender has received such notice later than 12:00
noon (New York City time) on any day, no later than 11:00 a.m. (New York City
time) on the immediately following Business Day), whereupon, subject to the
provisions of Section 2.03(c)(iii), each Canadian Lender that so makes funds
available shall be deemed to have made a Base Rate Loan in the applicable
currency to the applicable Canadian Borrower in such amount. The applicable
Administrative Agent shall remit the funds so received to the applicable L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the applicable Borrower shall be deemed to have incurred from the
applicable L/C Issuer an L/C Borrowing in the amount of and in the same currency
as the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at
the Default Rate. In such event, each U.S. Revolving Credit Lender's or Canadian
Lender's, as the case may be, payment to the applicable Administrative Agent for
the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such
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L/C Borrowing and shall constitute an L/C Advance from such Lender in
satisfaction of its participation obligation under this Section 2.03.
(iv) Until each applicable Lender funds its Revolving Credit
Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable
L/C Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender's Pro Rata Share of such amount shall be solely for the account
of the applicable L/C Issuer.
(v) Each applicable Lender's obligation to make Revolving
Credit Loans or L/C Advances to reimburse an L/C Issuer for amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute
and unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such Lender
may have against the applicable L/C Issuer, the applicable Borrower or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar
to any of the foregoing; provided, however, that each Revolving Credit Lender's
obligation to make Revolving Credit Loans (but not its obligation to make L/C
Advances) pursuant to this Section 2.03(c) is subject to the conditions set
forth in Section 4.02 (other than delivery by the applicable Borrower of a
Committed Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the applicable Borrower to reimburse the
applicable L/C Issuer for the amount of any payment made by such L/C Issuer
under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the applicable
Administrative Agent for the account of the applicable L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii), the applicable L/C
Issuer shall be entitled to recover from such Lender (acting through the
applicable Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to such L/C Issuer at a rate per annum equal to
the Federal Funds Rate (or with respect to any Canadian Letter of Credit
denominated in Canadian Dollars, the Canadian Prime Rate) from time to time in
effect or, if greater, a rate determined by the applicable Administrative Agent
in accordance with banking industry rules on interbank compensation. A
certificate of any L/C Issuer submitted to any Lender (through the applicable
Administrative Agent) with respect to any amounts owing under this Section
2.03(c)(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations. (i) If, at any time after an
L/C Issuer has made a payment under any Letter of Credit and has received from
any Lender such Lender's L/C Advance in respect of such payment in accordance
with Section 2.03(c), the applicable Administrative Agent receives for the
account of such L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the applicable Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by such
Administrative Agent), such Administrative Agent will distribute to such Lender
its Pro Rata Share thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during
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which such Lender's L/C Advance was outstanding) in the same funds as those
received by such Administrative Agent.
(ii) If any payment received by an Administrative Agent for
the account of any L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.06 (including
pursuant to any settlement entered into by such L/C Issuer in its discretion),
each U.S. Revolving Credit Lender (with respect to any U.S. Letter of Credit) or
each Canadian Lender (with respect to any Canadian Letter of Credit) shall pay
to the applicable Administrative Agent for the account of such L/C Issuer its
Pro Rata Share thereof on demand of the applicable Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate (or
with respect to any Canadian Letter of Credit denominated in Canadian Dollars,
the Canadian Prime Rate) from time to time in effect or, if greater, a rate
determined by the applicable Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) Obligations Absolute. The obligation of a Borrower to
reimburse the applicable L/C Issuer for each drawing under each Letter of Credit
issued at its request and to repay each L/C Borrowing with respect thereto shall
be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, setoff, defense
or other right that such Borrower may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person
for whom any such beneficiary or any such transferee may be acting),
the applicable L/C Issuer or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such 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 the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the applicable L/C Issuer under such
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 the applicable L/C Issuer under such 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 such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law;
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(v) any exchange, release or nonperfection of any Collateral,
or any release or amendment or waiver of or consent to departure from
the Guaranty or any other guarantee, for all or any of the Obligations
of such Borrower in respect of such Letter of Credit; or
(vi) 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, such Borrower.
The applicable Borrower shall promptly examine a copy of each
Letter of Credit and each amendment thereto that is delivered to it and, in the
event of any claim of noncompliance with such Borrower's instructions or other
irregularity, such Borrower will promptly notify the L/C Issuer. Each Borrower
shall be conclusively deemed to have waived any such claim against the
applicable L/C Issuer and its correspondents unless such notice is given as
aforesaid.
(f) Role of L/C Issuers. Each Lender and each Borrower agree
that, in paying any drawing under a Letter of Credit, no L/C Issuer shall have
any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the 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. No L/C
Issuer, any Agent-Related Person nor any of the respective correspondents,
participants or assignees of such L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Required 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 document or instrument related to any Letter of Credit or
Letter of Credit Application. Each Borrower 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, however, that this assumption is not intended to,
and shall not, preclude a Borrower's pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other agreement.
No L/C Issuer, any Agent-Related Person, nor any of the respective
correspondents, participants or assignees of such L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.03(e); provided, however, that anything in such clauses to the
contrary notwithstanding, a Borrower may have a claim against an L/C Issuer, and
an L/C Issuer may be liable to a Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by such Borrower which such Borrower proves were caused by such L/C
Issuer's willful misconduct or gross negligence or such L/C Issuer's willful or
grossly negligent 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 a Letter of Credit. In
furtherance and not in limitation of the foregoing, any L/C Issuer 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 no L/C Issuer 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.
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(g) Cash Collateral for L/C Obligations and Canadian BAs. (i)
Upon the request of the applicable Administrative Agent, if an L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing and the conditions set forth in Section
4.02 to a Revolving Credit Borrowing cannot then be met, (ii) if, as of the
Letter of Credit Expiration Date, any Letter of Credit issued for any Borrower
may for any reason remain outstanding and partially or wholly undrawn, or (iii)
if any Borrower is required to Cash Collateralize L/C Obligations or Canadian
BAs pursuant to Section 8.02, such Borrower shall immediately Cash Collateralize
the then Outstanding Amount of all of its L/C Obligations (in an amount equal to
100% of the Outstanding Amount of L/C Obligations with respect to Letters of
Credit denominated in Dollars and 105% of the Outstanding Amount of L/C
Obligations denominated in Canadian Dollars determined as of the date of such
L/C Borrowing or Letter of Credit Expiration Date) and the face amount of its
Canadian BAs. The U.S. Borrower hereby grants to the U.S. Administrative Agent,
for the benefit of the U.S. Lender and the U.S. Revolving Credit Lenders, and
each Canadian Borrower hereby grants to the Canadian Administrative Agent, for
the benefit of the Canadian L/C Issuer and each Canadian Lender, a security
interest in any Cash Collateral Account established for such Obligations of such
Borrower and in all cash, Cash Equivalents, deposits and balances and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked
deposit accounts at the applicable Administrative Agent's Office and pending
application or release as herein provided, shall be invested in Cash Equivalents
(which, (i) in the case of L/C Obligations, shall be denominated in the same
currency as the L/C Obligations with respect to which such Cash Collateral was
deposited and (ii) in the case of Canadian BAs, shall be denominated in Canadian
Dollars and shall be invested such that such Cash Equivalents shall mature in
amounts sufficient to repay the face amount of the outstanding Canadian BAs at
the scheduled maturity thereof) reasonably acceptable to the applicable
Administrative Agent; provided that no Administrative Agent or L/C Issuer shall
be liable to any Borrower for any investment losses suffered by any Borrower,
including as a result of any sale of any such Cash Equivalents prior to the
scheduled maturity thereof. If at any time an Administrative Agent determines
that any funds held as Cash Collateral are subject to any right or claim of any
Person other than such Administrative Agent or that the total amount of such
funds in the applicable Cash Collateral Account is less than the aggregate
Outstanding Amount of all L/C Obligations with respect to Letters of Credit
issued under the applicable Revolving Credit Facility (or, in the case of L/C
Obligations with respect to Canadian Letters of Credit denominated in Canadian
Dollars, 105% of the Outstanding Amount thereof) and the face amount at maturity
of all Canadian BAs of such Borrower, the applicable Borrower will, forthwith
upon demand by such Administrative Agent, pay to such Administrative Agent, as
additional funds to be deposited and held in the deposit accounts at such
Administrative Agent's Office as aforesaid, an amount equal to the excess of (a)
such aggregate Outstanding Amount and face amount over (b) the total amount of
funds, if any, then held as Cash Collateral for such Borrower's L/C Obligations
and the face amount of such Borrower's Canadian BAs that such Administrative
Agent determines to be free and clear of any such right and claim. Upon the
drawing of any Letter of Credit and at the maturity of any Canadian BA for which
funds are on deposit as Cash Collateral, such funds shall be applied, to the
extent permitted under applicable law, to reimburse the applicable L/C Issuer or
holder of a Canadian BA. To the extent the amount of any Cash Collateral exceeds
the then Outstanding Amount of L/C Obligations and the face amount of Canadian
BAs of a Borrower and so long as
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no Event of Default has occurred and is continuing, the excess shall be refunded
to the applicable Borrower.
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by the applicable L/C Issuer and the applicable Borrower when a Letter of
Credit is issued (including any such agreement applicable to an Existing Letter
of Credit), (i) the rules of the "International Standby Practices 1998"
published by the Institute of International Banking Law & Practice (or such
later version thereof as may be in effect at the time of issuance) shall apply
to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance shall
apply to each commercial Letter of Credit.
(i) Letter of Credit Fees. The U.S. Borrower shall pay to the
U.S. Administrative Agent for the account of each U.S. Revolving Credit Lender
in accordance with its Pro Rata Share a Letter of Credit fee for each U.S.
Letter of Credit equal to the Applicable Rate times the daily maximum amount
then available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit if such maximum
amount increases periodically pursuant to the terms of such Letter of Credit)
and the Canadian Borrowers shall pay to the Canadian Administrative Agent for
the account of each Canadian Lender in accordance with its Pro Rata Share a
Letter of Credit fee for each Canadian Letter of Credit equal to the Applicable
Rate times the daily maximum amount then available to be drawn under each such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit if such maximum amount increases periodically pursuant to
the terms of such Letter of Credit). Such letter of credit fees shall be
computed on a quarterly basis in arrears. Such letter of credit fees shall be
due and payable on the first Business Day after the end of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If there is any change in the Applicable Rate during any
quarter, the daily maximum amount of each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges
Payable to L/C Issuers. The U.S. Borrower shall pay directly to the U.S. L/C
Issuer for its own account a fronting fee with respect to each U.S. Letter of
Credit, which shall accrue at the rate of 0.125% per annum (computed on the
average daily amount of the Outstanding Amount of all L/C Obligations with
respect to U.S. Letters of Credit (excluding any portion thereof attributable to
Unreimbursed Amounts)) and the Canadian Borrowers shall pay directly to the
Canadian L/C Issuer for its own account a fronting fee with respect to each
Canadian Letter of Credit, which shall accrue at the rate of 0.125% per annum
(computed on the average daily amount of the Outstanding Amount of all L/C
Obligations with respect to Canadian Letters of Credit (excluding any portion
thereof attributable to Unreimbursed Amounts)) during the period from and
including the Closing Date to but excluding the later of the Letter of Credit
Expiration Date and the date on which the Outstanding Amount of such L/C
Obligations has been reduced to zero. Accrued fronting fees shall be payable in
arrears (i) on the last Business Day of March, June, September and December of
each year, commencing on the first such date to occur after the Closing Date,
(ii) on the Letter of Credit Expiration Date and (iii) following the Letter of
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Credit Expiration Date, on demand. All fronting fees shall be paid in Dollars
and, once paid, shall be nonrefundable. In addition, each Borrower shall pay
directly to the applicable L/C Issuer for its own account such L/C Issuing
Bank's customary issuance, presentation, amendment and other processing fees
(with respect to each Letter of Credit computed, on the U.S. Dollar Equivalent
of the amount of such Letter of Credit, and payable upon the issuance thereof,
and with respect to any amendment of a commercial Letter of Credit increasing
the amount of such Letter of Credit, at a rate separately agreed between the
applicable Borrower and the applicable L/C Issuer, computed on the U.S. Dollar
Equivalent of the amount of such increase, and payable upon the effectiveness of
such amendment), and other standard costs and charges, of such L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable within five (5) Business
Days of demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event
of any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.04 Swing Line Loans.
(a) The U.S. Swing Line. (i) Subject to the terms and
conditions set forth herein, the U.S. Swing Line Lender agrees to make loans
(each such loan, a "U.S. SWING LINE LOAN") to the U.S. Borrower from time to
time on any Business Day until the Maturity Date in an aggregate amount not to
exceed at any time outstanding the amount of the U.S. Swing Line Sublimit,
notwithstanding the fact that such U.S. Swing Line Loans, when aggregated with
the Pro Rata Share of the Outstanding Amount of Loans and L/C Obligations of the
Lender acting as U.S. Swing Line Lender, may exceed the amount of such Lender's
Commitment; provided, however, that after giving effect to any U.S. Swing Line
Loan, (A) the aggregate Outstanding Amount of the U.S. Revolving Credit Loans of
any Lender, plus such Lender's Pro Rata Share of the Outstanding Amount of all
L/C Obligations with respect to U.S. Letters of Credit, plus such Lender's Pro
Rata Share of the Outstanding Amount of all U.S. Swing Line Loans shall not
exceed such Lender's U.S. Revolving Credit Commitment; provided, further, that
the U.S. Borrower shall not use the proceeds of any U.S. Swing Line Loan to
refinance any outstanding U.S. Swing Line Loan. Within the foregoing limits, and
subject to the other terms and conditions hereof, the U.S. Borrower may borrow
under this Section 2.04, prepay under Section 2.05, and reborrow under this
Section 2.04. Each U.S. Swing Line Loan shall be a Base Rate Loan. Immediately
upon the making of a U.S. Swing Line Loan, each U.S. Revolving Credit Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the U.S. Swing Line Lender a risk participation in such U.S. Swing
Line Loan in an amount equal to the product of such Lender's Pro Rata Share
times the amount of such U.S. Swing Line Loan.
(ii) Subject to the terms and conditions set forth herein, the
Canadian Swing Line Lender agrees to make loans (each such loan, a "CANADIAN
SWING LINE LOAN" and together with the U.S. Swing Line Loans, the "SWING LINE
LOANS") to the Canadian Borrowers from time to time on any Business Day until
the Maturity Date in Dollars or Canadian Dollars in an aggregate amount not to
exceed at any time outstanding the amount of the Canadian Swing Line
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Sublimit, notwithstanding the fact that such Canadian Swing Line Loans, when
aggregated with the Pro Rata Share of the Outstanding Amount of Loans and L/C
Obligations of the Lender acting as Canadian Swing Line Lender, may exceed the
amount of such Lender's Commitment; provided, however, that after giving effect
to any Canadian Swing Line Loan, the aggregate Outstanding Amount of the
Canadian Loans of any Lender plus such Lender's Pro Rata Share of the
Outstanding Amount of all Canadian L/C Obligations, plus such Lender's Pro Rata
Share of the Outstanding Amount of all Canadian Swing Line Loans shall not
exceed such Lender's Canadian Credit Commitment; provided, further, that no
Canadian Borrower shall use the proceeds of any Canadian Swing Line Loan to
refinance any outstanding Canadian Swing Line Loan. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Canadian Borrowers may
borrow under this Section 2.04, prepay under Section 2.05, and reborrow under
this Section 2.04. Each Canadian Swing Line Loan shall be a Base Rate Loan.
Immediately upon the making of a Canadian Swing Line Loan, each Canadian Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Canadian Swing Line Lender a risk participation in such
Canadian Swing Line Loan in an amount equal to the product of such Lender's Pro
Rata Share times the amount of such Canadian Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be
made upon the applicable Borrower's irrevocable notice to the applicable Swing
Line Lender and the applicable Administrative Agent, which may be given by
telephone. Each such notice must be received by the applicable Swing Line Lender
and the applicable Administrative Agent not later than 1:00 p.m. (New York City
time) on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $100,000 (or, in the case of a Canadian
Swing Line Borrowing denominated in Canadian Dollars, Cdn$100,000), and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the applicable Swing Line
Lender and the applicable Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
applicable Borrower. Promptly after receipt by a Swing Line Lender of any
telephonic Swing Line Loan Notice, such Swing Line Lender will confirm with the
applicable Administrative Agent (by telephone or in writing) that such
Administrative Agent has also received such Swing Line Loan Notice and, if not,
such Swing Line Lender will notify such Administrative Agent (by telephone or in
writing) of the contents thereof. Unless the applicable Swing Line Lender has
received notice (by telephone or in writing) from the applicable Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. (New York City
time) on the date of the proposed Swing Line Borrowing (A) directing such Swing
Line Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.04(a), or (B) that one
or more of the applicable conditions specified in Section 4.02 is not then
satisfied, then, subject to the terms and conditions hereof, such Swing Line
Lender will, not later than 3:00 p.m. (New York City time) on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the requesting Borrower.
(c) Refinancing of Swing Line Loans. (i) Any Swing Line Lender
at any time in its sole and absolute discretion may request, on behalf of the
U.S. Borrower (in the case of any U.S. Swing Line Borrowing) or any Canadian
Borrower (in the case of any Canadian
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Swing Line Borrowing) (and each Borrower hereby irrevocably authorizes the
applicable Swing Line Lender to so request on its behalf), that each U.S.
Revolving Credit Lender (in the case of any U.S. Swing Line Borrowing) or each
Canadian Lender (in the case of any Canadian Swing Line Borrowing) make a Base
Rate Loan in an amount equal to such Lender's Pro Rata Share of the amount of
such Swing Line Loans then outstanding. Such request shall be made in writing
(which written request shall be deemed to be a Committed Loan Notice from the
applicable Borrower for purposes hereof) and in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified therein
for the principal amount of Base Rate Loans, but subject to the unutilized
portion of the aggregate U.S. Revolving Credit Commitments and Canadian Credit
Commitments and the conditions set forth in Section 4.02. The applicable Swing
Line Lender shall furnish the applicable Borrower with a copy of the applicable
Committed Loan Notice promptly after delivering such notice to the applicable
Administrative Agent. Each U.S. Revolving Credit Lender (in the case of any U.S.
Swing Line Borrowing) and each Canadian Lender (in the case of any Canadian
Swing Line Borrowing) shall make an amount equal to its Pro Rata Share of the
amount specified in such Committed Loan Notice available to the applicable
Administrative Agent in immediately available funds for the account of the
applicable Swing Line Lender at the applicable Administrative Agent's Office not
later than 1:00 p.m. (New York City time) on the day specified in such Committed
Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the
applicable Borrower in such amount. The applicable Administrative Agent shall
remit the funds so received to the applicable Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced by such a U.S. Revolving Credit Borrowing or Canadian Borrowing, as
applicable, in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the applicable Swing Line Lender as set forth herein shall be
deemed to be a request by such Swing Line Lender that each of the U.S. Revolving
Credit Lenders (in the case of any U.S. Swing Line Borrowing) and each of the
Canadian Lenders (in the case of any Canadian Swing Line Borrowing) fund its
risk participation in the relevant Swing Line Loan and each such Lender's
payment to the applicable Administrative Agent for the account of such Swing
Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of
such participation.
(iii) If any Lender fails to make available to the applicable
Administrative Agent for the account of the applicable Swing Line Lender any
amount required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the
applicable Swing Line Lender shall be entitled to recover from such Lender
(acting through the applicable Administrative Agent), on demand, such amount
with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to such Swing Line
Lender at a rate per annum equal to the Federal Funds Rate (or with respect to
any Canadian Swing Line Loan denominated in Canadian Dollars, the Canadian Prime
Rate) from time to time in effect or, if greater, a rate determined by the
applicable Administrative Agent in accordance with banking industry rules on
interbank compensation. A certificate of the applicable Swing Line Lender
submitted to any Lender (through the U.S. Administrative Agent) with respect to
any amounts owing under this clause (iii) shall be conclusive absent manifest
error.
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(iv) Each Lender's obligation to make U.S. Revolving Credit
Loans or Canadian Loans, as applicable, or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the applicable Swing Line Lender, any Borrower or
any other Person for any reason whatsoever, (B) the occurrence or continuance of
a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Lender's
obligation to make U.S. Revolving Credit Loans (but not its obligation to fund
risk participations) and each Canadian Lender's obligation to make Canadian
Loans (but not its obligation to fund risk participations) pursuant to this
Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such
funding of risk participations shall relieve or otherwise impair the obligation
of the applicable Borrower to repay Swing Line Loans, together with interest as
provided herein.
(d) Repayment of Participations. (i) At any time after any
Lender has purchased and funded a risk participation in a Swing Line Loan, if
the applicable Swing Line Lender receives any payment on account of such Swing
Line Loan, such Swing Line Lender will distribute to such Lender its Pro Rata
Share of such payment (appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's risk participation was
funded) in the same funds as those received by such Swing Line Lender.
(ii) If any payment received by any Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to be
returned by such Swing Line Lender under any of the circumstances described in
Section 10.06 (including pursuant to any settlement entered into by such Swing
Line Lender in its discretion), each applicable Lender shall pay to such Swing
Line Lender its Pro Rata Share thereof on demand of the applicable
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate (or with respect to any Canadian Swing Line Loan denominated in Canadian
Dollars, the Canadian Prime Rate) or, if greater, a rate determined by the
applicable Administrative Agent in accordance with banking industry rules on
interbank compensation. The applicable Administrative Agent will make such
demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. Each Swing Line
Lender shall be responsible for invoicing the applicable Borrower for interest
on the Swing Line Loans made by it. Until each applicable Revolving Credit
Lender funds its Base Rate Loan or risk participation pursuant to this Section
2.04 to refinance such Lender's Pro Rata Share of any Swing Line Loan, interest
in respect of such Pro Rata Share shall be solely for the account of the Swing
Line Lender making such Swing Line Loan.
(f) Payments Directly to Swing Line Lenders. Each Borrower
shall make all payments of principal and interest in respect of the Swing Line
Loans made to it directly to the Swing Line Lender making such Swing Line Loan.
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2.05 Prepayments.
(a) Optional. (i) Each Borrower may, upon notice to the
applicable Administrative Agent, at any time or from time to time voluntarily
prepay Loans (other than Canadian BAs) in whole or in part without premium or
penalty; provided that (1) such notice must be received by the applicable
Administrative Agent not later than 12:30 p.m. (New York City time) (A) three
(3) Business Days prior to any date of prepayment of Eurodollar Rate Loans and
(B) on the date of prepayment of Base Rate Loans; (2) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole
multiple of $500,000 in excess thereof; and (3) any prepayment of Base Rate
Loans shall be in a principal amount of $500,000 (or, in the case of Canadian
Loans denominated in Canadian Dollars Cdn$500,000) or a whole multiple of
$100,000 (or, in the case of Canadian Loans denominated in Canadian Dollars
Cdn$100,000) in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding and (4) any such prepayment of Revolving Credit
Loans of any Tranche shall be made pro rata among the Revolving Credit Loans of
such Tranche of the same Type of all Lenders that have made such Revolving
Credit Loans. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The applicable Administrative
Agent will promptly notify each applicable Lender of its receipt of each such
notice, and of the amount of such Lender's Pro Rata Share of such prepayment. If
such notice is given by a Borrower, such Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest thereon, together with any additional amounts required
pursuant to Section 3.05. Each prepayment of the outstanding Term Loans pursuant
to this Section 2.05(a) shall be applied to any principal repayment installments
thereof in direct order of maturity.
(ii) Each Borrower may, upon notice to the applicable Swing
Line Lender (with a copy to the applicable Administrative Agent), at any time or
from time to time, voluntarily prepay its Swing Line Loans in whole or in part
without premium or penalty; provided that (1) such notice must be received by
the applicable Swing Line Lender and Administrative Agent not later than 1:00
p.m. (New York City time) on the date of the prepayment, and (2) any such
prepayment shall be in a minimum principal amount of $100,000 (or, in the case
of Canadian Swing Line Loans denominated in Canadian Dollars, Cdn$100,000). Each
such notice shall specify the date and amount of such prepayment. If such notice
is given by a Borrower, such Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.
(iii) Notwithstanding anything to the contrary contained in
this Agreement, the applicable Borrower may rescind any notice of prepayment
under Section 2.05(a)(i) or (a)(ii) if such prepayment would have resulted from
a refinancing of all of the Facilities, which refinancing shall not be
consummated or shall otherwise be delayed.
(b) Mandatory. (i) To the extent not borrowed on the Closing
Date, the Term Commitment of each Term Lender shall be automatically and
permanently terminated at 5:00 p.m. (New York City time) on the Closing Date.
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(ii) Within five (5) Business Days after financial statements
are required to be delivered pursuant to Section 6.01(a) and the related
Compliance Certificate has been delivered pursuant to Section 6.02(b), the U.S.
Borrower shall prepay an aggregate principal amount of Term Loans in accordance
with Section 2.05(b)(vii) in an amount equal to the excess of (A) 50% of Excess
Cash Flow for the Excess Cash Flow Period covered by such financial statements
commencing with the Excess Cash Flow Period ending December 31, 2005 over (B)
the amount of Term Loans repaid pursuant to Section 2.05(a) during such Excess
Cash Flow Period; provided that such percentage shall be reduced to (A) 25% if
the Leverage Ratio as of the last day of the prior fiscal year was less than
4.00:1.00 and (B) 0% if the Leverage Ratio as of the last day of the prior
fiscal year was less than 3.50:1.00.
(iii) (A) If (x) Holdings, the U.S. Borrower or any of its
Restricted Subsidiaries Disposes of any property or assets (other than any
Disposition of any property or assets permitted by Section 7.05(a), (b), (c),
(d) (to the extent constituting a Disposition by any Restricted Subsidiary that
is not a Loan Party to a Loan Party), (e), (f) (but only with respect to any
sale-leaseback transaction effected within two hundred seventy (270) days after
the acquisition of the property that is the subject of such Transaction and only
if such property was not acquired with the Net Cash Proceeds of a Disposition or
Casualty Event), (g), (h), (i), (k) or (l)) or (y) any Casualty Event occurs,
which in the aggregate for any transaction or series of related transactions
results in the realization or receipt by Holdings, the U.S. Borrower or such
Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $5,000,000,
the U.S. Borrower shall (1) give written notice to the Administrative Agents
thereof on or prior to the date of the realization or receipt of such Net Cash
Proceeds and (2) except to the extent the U.S. Borrower elects in such notice to
reinvest all or a portion of such Net Cash Proceeds in accordance with Section
2.05(b)(iii)(B) (which election may only be made if no Event of Default has
occurred and is then continuing), prepay an aggregate principal amount of Term
Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom
within the earlier of (A) two (2) Business Days of receipt thereof by Holdings,
the U.S. Borrower or any Domestic Subsidiary which is a Restricted Subsidiary or
(B) ten (10) Business Days of receipt thereof by any Foreign Subsidiary which is
a Restricted Subsidiary.
(B) With respect to any Net Cash Proceeds realized or received
with respect to any Disposition (other than as specifically excluded in Section
2.05(b)(iii)(A)) or any Casualty Event, at the option of the U.S. Borrower or
such Restricted Subsidiary, and so long as no Event of Default shall have
occurred and be continuing, the U.S. Borrower may reinvest all or any portion of
such Net Cash Proceeds in assets useful for its business no later than the later
of (x) three hundred and sixty-five (365) days following receipt of such Net
Cash Proceeds or (y) if the U.S. Borrower or such Restricted Subsidiary enters
into a binding contract to reinvest such Net Cash Proceeds within three hundred
and sixty-five (365) days of the receipt thereof, one hundred and eighty (180)
days after the date of such contract (or if earlier, two Business Days after
such contract is terminated following such 365th day); provided, however, that
if any Net Cash Proceeds are no longer intended to be so reinvested at any time
after delivery of a notice of reinvestment election, an amount equal to any such
Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as
set forth in this Section 2.05; provided, further, however, that no such Net
Cash Proceeds of a Casualty Event shall be reinvested for the repair or
replacement of property damaged or lost in such Casualty Event if the net book
value of such
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property exceeds $5,000,000 unless, after giving Pro Forma Effect to any
Indebtedness to be incurred in connection with such replacement or restoration,
the Loan Parties would be in compliance with the financial covenants set forth
in Section 7.11 as of the most recent fiscal quarter end preceding the date of
determination.
(iv) The U.S. Borrower shall prepay an aggregate principal
amount of Term Loans in an amount equal to 50% of all Net Cash Proceeds received
from any Specified Equity Issuance promptly, but in any event within five (5)
Business Days after receipt thereof by Holdings, the U.S. Borrower or any of its
Restricted Subsidiaries; provided that such percentage shall be reduced to (A)
25% if the Leverage Ratio as of the last day of the prior fiscal quarter was
less than 4.00:1.00 and (B) 0% if the Leverage Ratio as of the last day of the
prior fiscal quarter was less than 3.50:1.00.
(v) Upon the incurrence or issuance by Holdings, the U.S.
Borrower or any of its Restricted Subsidiaries of (A) any Indebtedness incurred
in violation of Section 7.03 or (B) any Permitted Subordinated Indebtedness
under Section 7.03(a)(iv)(B), the U.S. Borrower shall prepay an aggregate
principal amount of Term Loans in an amount equal to 100% of all Net Cash
Proceeds received therefrom immediately upon receipt thereof by Holdings, the
U.S. Borrower or such Restricted Subsidiary.
(vi) If (A) for any reason the aggregate U.S. Revolving Credit
Exposure exceeds the U.S. Revolving Credit Commitments then in effect, the U.S.
Borrower shall immediately prepay U.S. Revolving Credit Loans and U.S. Swing
Line Loans and/or Cash Collateralize L/C Obligations with respect to U.S.
Letters of Credit in an aggregate amount equal to such excess; provided,
however, that the U.S. Borrower shall not be required to Cash Collateralize the
L/C Obligations pursuant to this Section 2.05(b)(v) except to the extent that
after the prepayment in full of the U.S. Revolving Credit Loans and the Swing
Line Loans, the Outstanding Amount of L/C Obligations with respect to U.S.
Letters of Credit exceeds the U.S. Revolving Credit Commitments then in effect.
(B) On each date when the aggregate Canadian Exposure exceeds
the Canadian Credit Commitment Amount as then in effect, the Canadian Borrowers
shall prepay Canadian Loans (other than Canadian BAs) and Canadian Swing Line
Loans and/or Cash Collateralize Canadian Letters of Credit in an aggregate
amount equal to such excess; provided, however, that the Canadian Borrower shall
not be required to Cash Collateralize the L/C Obligations with respect to
Canadian Letters of Credit pursuant to this Section 2.05(b)(vi) except to the
extent that after the prepayment in full of the Canadian Loans (other than
Canadian BAs) and the Canadian Swing Line Loans, the Outstanding Amount of L/C
Obligations with respect to Canadian Letters of Credit exceeds the Canadian
Credit Commitments then in effect.
(vii) Each prepayment of Term Loans pursuant to this Section
2.05(b) required to be made by U.S. Borrower shall be applied, in direct order
of maturities, to any principal repayment installments of the Term Facility.
(viii) All prepayments under this Section 2.05 shall be made
together with, in the case of any such prepayment of a Eurodollar Rate Loan on a
date other than the last day of an Interest Period therefor, any amounts owing
in respect of such Eurodollar Rate Loan pursuant to
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Section 3.05. Notwithstanding any of the other provisions of Section 2.05(b), so
long as no Event of Default shall have occurred and be continuing, if any
prepayment of Eurodollar Rate Loans is required to be made under this Section
2.05(b), other than on the last day of the Interest Period therefor, the
applicable Borrower may, in its sole discretion, deposit the amount of any such
prepayment otherwise required to be made thereunder into a Cash Collateral
Account until the last day of such Interest Period, at which time the U.S.
Administrative Agent shall be authorized (without any further action by or
notice to or from the applicable Borrower or any other Loan Party) to apply such
amount to the prepayment of such Loans in accordance with this Section 2.05(b).
Upon the occurrence and during the continuance of any Event of Default, the
applicable Administrative Agent shall also be authorized (without any further
action by or notice to or from the applicable Borrower or any other Loan Party)
to apply such amount to the prepayment of the outstanding Loans of the
applicable Borrower in accordance with this Section 2.05(b).
2.06 Termination, Reduction or Reallocation of Commitments.
(a) Optional. The Borrowers may, upon written notice to each
Administrative Agent, terminate the unused portions of the Term Commitments, the
U.S. Letter of Credit Sublimit, the unused U.S. Revolving Credit Commitments, or
Canadian Credit Commitment or from time to time permanently reduce the unused
portions of the Term Commitments, the U.S. Letter of Credit Sublimit, or the
unused Revolving Credit Commitments; provided that (i) any such notice shall be
received by each Administrative Agent three (3) Business Days prior to the date
of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $500,000 or any whole multiple of $100,000 in excess thereof
and (iii) the Borrowers shall not terminate or reduce the unused portions of the
Term Commitments, the U.S. Letter of Credit Sublimit, or the unused Revolving
Credit Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the aggregate U.S. Revolving Credit Exposure would exceed
the aggregate U.S. Revolving Credit Commitments or the aggregate Canadian
Exposure would exceed the aggregate Canadian Credit Commitments. Notwithstanding
the foregoing, the U.S. Borrower may rescind or postpone any notice of
termination of the Commitments if such termination would have resulted from a
refinancing of all of the Facilities, which refinancing shall not be consummated
or otherwise shall be delayed.
(b) Mandatory. (i) If after giving effect to any reduction or
termination of unused U.S. Revolving Loan Commitments under this Section 2.06,
the U.S. Letter of Credit Sublimit or the U.S. Swing Line Sublimit exceeds the
amount of the U.S. Revolving Credit Facility, such Sublimit shall be
automatically reduced by the amount of such excess.
(ii) If after giving effect to any reduction or termination of
unused Canadian Credit Commitments under this Section 2.06, the Canadian Swing
Line Sublimit exceeds the amount of the Canadian Revolving Credit Facility, such
Sublimit shall be automatically reduced by the amount of such excess.
(c) Application of Commitment Reductions; Payment of Fees. The
applicable Administrative Agent will promptly notify the applicable Lenders of
any termination or reduction of unused portions of the U.S. Letter of Credit
Sublimit, or the unused U.S. Revolving Credit Commitment or unused Canadian
Credit Commitment under this Section 2.06. Upon any
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reduction of unused Commitments under a Facility, the Commitment of each Lender
under such Facility shall be reduced by such Lender's Pro Rata Share of the
amount by which such Facility is reduced (other than the termination of the
Commitment of any Lender as provided in Section 3.07). All commitment fees
accrued until the effective date of any termination of the Revolving Credit
Commitments shall be paid on the effective date of such termination.
(d) Subject to the satisfaction of the conditions set forth in
paragraph (e) below, the U.S. Borrower, upon at least thirty (30) days prior
written notice (or such shorter notice as to which the Administrative Agents may
consent) to each Administrative Agent, may reallocate all or a portion of a
Lender's Revolving Credit Commitment once at any time during each fiscal quarter
of the U.S. Borrower in accordance with the following procedures. In the case of
any such reallocation, the total U.S. Revolving Credit Commitments (in the case
of a reallocation of a U.S. Revolving Credit Commitment) or the total Canadian
Credit Commitments (in the case of a reallocation of a Canadian Credit
Commitment), as the case may be, shall be reduced by the amount of the
reallocated Commitment (the "REALLOCATED COMMITMENT") and the total Canadian
Credit Commitments (if the Reallocated Commitment was a U.S. Revolving Credit
Commitment) or the total U.S. Revolving Credit Commitments (if the Reallocated
Commitment was a Canadian Credit Commitment) shall be increased by an amount
equal to the Reallocated Commitment. Any such reallocation shall be subject to
execution of documentation with respect thereto by the Borrowers, the
Administrative Agents, the Lender whose Commitment is reduced pursuant to such
reallocation (the "REDUCED LENDER") and the Lender that will assume the
increased Commitment resulting from such reallocation, which may be the Reduced
Lender or an affiliate of the Reduced Lender (the "INCREASED LENDER"). The
Administrative Agents shall notify the Revolving Credit Lenders of any such
reallocation. Any such reallocation shall not require any consent or approval of
any Lender other than the Reduced Lender and the Increased Lender and the
amounts of the respective Revolving Credit Commitments of such other Lenders
shall not be changed by any such reallocation. In the event of any such
reallocation (i) the credit facility comprised of the Reallocated Commitment,
the other Revolving Credit Commitments of the same Tranche and the Loans and
other Credit Extensions hereunder in respect of such Commitments is referred to
herein as the "REDUCED FACILITY", and (ii) the credit facility comprised of the
Commitment of the Increased Lender, the other Commitments of the same Tranche
and the Loans and other Credit Extensions hereunder in respect of such
Commitments is referred to herein as the "INCREASED FACILITY".
(e) The consummation of any reallocation pursuant to paragraph
(d) above shall be subject to satisfaction of the following conditions on the
date of such consummation:
(i) the conditions to each Credit Extension set forth in
Section 4.02 shall be satisfied at the time;
(ii) each of the Administrative Agents, each L/C Issuer, the
Reduced Lender and the Increased Lender shall have consented in writing
to such reallocation;
(iii) such reallocation shall not result in the prepayment of
any Canadian BA;
(iv) after giving effect to such reallocation, the aggregate
Canadian Commitments would not exceed $35,000,000;
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(v) after giving effect to such reallocation and the
satisfaction of the conditions specified above, (A) the aggregate U.S.
Revolving Credit Exposure shall not exceed the aggregate U.S. Revolving
Credit Commitment and (B) the aggregate Canadian Exposure shall not
exceed the aggregate Canadian Credit Commitment; and
(vi) if the Increased Lender is not already a Lender, such
Increased Lender shall have executed a joinder agreement in form
satisfactory to the applicable Administrative Agent and the U.S.
Borrower pursuant to which it shall have become a Lender hereunder.
(f) On each the date of effectiveness of any reallocation of
any Commitment pursuant to clause (d) above (a "REALLOCATION EFFECTIVENESS
DATE"), (i) each of the Lenders having a Revolving Credit Commitment under the
Reduced Facility after giving effect to such reallocation (the "REMAINING
REDUCED FACILITY LENDERS") shall purchase from the Reduced Lender and the
Reduced Lender shall sell to each Remaining Reduced Facility Lender, at the
principal amount thereof, such interests in the Revolving Loans and
participation interests in L/C Obligations and Swing Line Loans outstanding
under the Reduced Facility on such Reallocation Effectiveness Date as shall be
necessary in order that, after giving effect to all such assignments and
purchases, such Revolving Loans and participation interests in L/C Obligations
and Swing Line Loans under the Reduced Facility will be held by each Remaining
Reduced Facility Lender ratably in accordance with its respective Pro Rata Share
of the aggregate Commitments under the Reduced Facility and (ii) each of the
Lenders having a Revolving Credit Commitment under the Increased Facility (the
"EXISTING INCREASED FACILITY LENDERS") shall sell to the Increased Lender and
the Increased Lender shall purchase from each Existing Increased Facility
Lender, at the principal amount thereof, such interests in the Revolving Loans
and participation interests in L/C Obligations and Swing Line Loans outstanding
under the Increased Facility on such Reallocation Effectiveness Date as shall be
necessary in order that, after giving effect to all such assignments and
purchases, such Revolving Loans and participation interests in L/C Obligations
and Swing Line Loans will be held by each Existing Increased Facility Lender and
the Increased Lender ratably in accordance with its respective Pro Rata Share of
the aggregate Commitments under the Increased Facility.
2.07 Repayment of Loans.
(a) Term Loans. The U.S. Borrower shall repay to the U.S.
Administrative Agent for the ratable account of the Term Lenders the aggregate
principal amount of all Term Loans outstanding in twenty-eight (28) consecutive
quarterly installments as follows (which installments shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05 or increased as a result of any increase in
the amount of Term Loans pursuant to Section 2.14 (such increased amortization
payments to be calculated in the same manner (and on the same basis) as the
schedule set forth below for the Term Loans made as of the Closing Date)):
DATE TERM LOAN PRINCIPAL AMORTIZATION PAYMENT
---- ----------------------------------------
November 27, 2004 $ 1,750,000
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DATE TERM LOAN PRINCIPAL AMORTIZATION PAYMENT
---- ----------------------------------------
February 27, 2005 $ 1,750,000
May 27, 2005 $ 1,750,000
August 27, 2005 $ 1,750,000
November 27, 2005 $ 1,750,000
February 27, 2006 $ 1,750,000
May 27, 2006 $ 1,750,000
August 27, 2006 $ 1,750,000
November 27, 2006 $ 1,750,000
February 27, 2007 $ 1,750,000
May 27, 2007 $ 1,750,000
August 27, 2007 $ 1,750,000
November 27, 2007 $ 1,750,000
February 27, 2008 $ 1,750,000
May 27, 2008 $ 1,750,000
August 27, 2008 $ 1,750,000
November 27, 2008 $ 1,750,000
February 27, 2009 $ 1,750,000
May 27, 2009 $ 1,750,000
August 27, 2009 $ 1,750,000
November 27, 2009 $ 1,750,000
February 27, 2010 $ 1,750,000
May 27, 2010 $ 1,750,000
August 27, 2010 $ 1,750,000
November 27, 2010 $164,500,000
February 27, 2011 $164,500,000
May 27, 2011 $164,500,000
August 27, 2011 $164,500,000
provided, however, that the final principal repayment installment of the Term
Loans shall be repaid on the Maturity Date and in any event shall be in an
amount equal to the aggregate principal amount of all Term Loans outstanding on
such date.
(b) Revolving Credit Loans. The applicable Borrower shall
repay to the applicable Administrative Agent for the ratable account of the
applicable Revolving Credit Lenders on the Maturity Date the aggregate principal
amount of all U.S. Revolving Credit Loans and Canadian Loans outstanding on such
date.
(c) Swing Line Loans. Each Borrower shall repay each of its
Swing Line Loans on the earlier to occur of (i) the date five (5) Business Days
after such Swing Line Loan is made and (ii) the Maturity Date.
2.08 Interest. (a) Subject to the provisions of Section
2.08(b), (i) each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the
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Applicable Rate; (ii) each Base Rate Loan shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate; and (iii) each Swing Line Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate for Revolving Credit Loans maintained as Base Rate Loans.
(b) Any past due amount of the Obligations shall accrue
interest at a fluctuating rate per annum at all times equal to the Default Rate
to the fullest extent permitted by applicable Laws. Accrued and unpaid interest
on past due amounts (including interest on past due interest) shall be due and
payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears
on each Interest Payment Date applicable thereto and at such other times as may
be specified herein. Interest hereunder shall be due and payable in accordance
with the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), whenever
interest payable pursuant to this Agreement is calculated with respect to any
monetary Obligation relating to the Canadian Facility on the basis of a period
other than a calendar year (the "CALCULATION PERIOD"), each rate of interest
determined pursuant to such calculation expressed as an annual rate is
equivalent to such rate as so determined, multiplied by the actual number of
days in the calendar year in which the same is to be ascertained and divided by
the number of days in the Calculation Period. The principle of deemed
reinvestment of interest with respect to any monetary Obligation relating to the
Canadian Facility shall not apply to any interest calculation under this
Agreement. The rates of interest with respect to any monetary Obligation
relating to the Canadian Facility stipulated in this Agreement are intended to
be nominal rates and not effective rates or yields.
2.09 Fees. In addition to certain fees described in Sections
2.03(i) and (j):
(a) Commitment Fee. The U.S. Borrower shall pay to the U.S.
Administrative Agent for the account of each Revolving Credit Lender in
accordance with its Pro Rata Share, a commitment fee ("U.S. COMMITMENT
FEE") equal to the Applicable Rate per annum, times the actual daily
amount by which the aggregate U.S. Revolving Credit Commitments exceed
the sum of (A) the Outstanding Amount of U.S. Revolving Credit Loans
and (B) the Outstanding Amount of L/C Obligations with respect to U.S.
Letters of Credit and the Canadian Borrowers shall pay to the Canadian
Administrative Agent for the account of each Canadian Lender in
accordance with its Pro Rata Share, a Commitment Fee ("CANADIAN
COMMITMENT FEE" and together with the U.S. Commitment Fee, the
"COMMITMENT FEES") equal to the Applicable Rate per annum, times the
actual daily amount by which the aggregate Canadian Credit Commitments
exceed the sum of (A) the Outstanding Amount of Canadian Loans and (B)
the Outstanding Amount of L/C Obligations with respect to Canadian
Letters of Credit. Notwithstanding the foregoing, any Commitment Fee
accrued with respect to any of the Commitments of a Defaulting Lender
during the period prior to the time such Lender became a Defaulting
Lender and unpaid at such time shall not be payable by any
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Borrower so long as such Lender shall be a Defaulting Lender except to
the extent that such Commitment Fee shall otherwise have been due and
payable by such Borrower prior to such time; and provided, however,
that no Commitment Fees shall accrue on any of the Commitments of a
Defaulting Lender so long as such Lender shall be a Defaulting Lender.
Subject to the foregoing restrictions, the Commitment Fees shall accrue
at all times from the date hereof until the Maturity Date, including at
any time during which one or more of the conditions in Article IV are
not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date, and on the
Maturity Date. The Commitment Fees shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any
quarter, the actual daily amount shall be computed and multiplied by
the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect.
(b) Other Fees. (i) The U.S. Borrower shall pay to the
Arrangers and the U.S. Administrative Agent for their own respective
accounts fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
(ii) The Borrowers shall pay to the Agents such fees as shall
have been separately agreed upon in writing in the amounts and at the
times so specified. Such fees shall be fully earned when paid and shall
not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees. All computations of
interest for Base Rate Loans shall be made on the basis of a year of three
hundred and sixty-five (365) or three hundred and sixty-six (366) days, as the
case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a three hundred and sixty (360) day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a three hundred and sixty-five (365)
day year). Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid in accordance with the terms of this
Agreement; provided that any Loan that is repaid on the same day on which it is
made shall, subject to Section 2.12(a), bear interest for one (1) day. Each
determination by the applicable Administrative Agent of an interest rate or fee
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
2.11 Evidence of Indebtedness. (a) The Credit Extensions made
by each Lender shall be evidenced by one or more accounts or records maintained
by such Lender and evidenced by one or more entries in the Register maintained
by each Administrative Agent (and the U.S. Administrative Agent shall act solely
for purposes of Treasury Regulation Section 5f.103-1(c), as agent for the U.S.
Borrower), in each case in the ordinary course of business. The accounts or
records maintained by the applicable Administrative Agent and each Lender shall
be prima facie evidence absent manifest error of the amount of the Credit
Extensions made by the Lenders to the applicable Borrower and the interest and
payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of any Borrower hereunder to
pay any amount owing with respect to the
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Obligations. In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the applicable
Administrative Agent in respect of such matters, the accounts and records of the
applicable Administrative Agent shall control in the absence of manifest error.
Upon the request of any Lender made through the applicable Administrative Agent,
the applicable Borrower or Borrower(s) shall execute and deliver to such Lender
(through the applicable Administrative Agent) a Note payable to such Lender,
which shall evidence such Lender's Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse thereon the
date, Type (if applicable), amount and maturity of its Loans and payments with
respect thereto.
(b) In addition to the accounts and records referred to in
Section 2.11(a), each Lender and the applicable Administrative Agent shall
maintain in accordance with its usual practice accounts or records and, in the
case of the Administrative Agents, entries in the applicable Register,
evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swing Line Loans. In the event of any conflict between the
accounts and records maintained by the applicable Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the applicable Administrative Agent shall control in the absence of
manifest error.
(c) Entries made in good faith by the applicable
Administrative Agent in the Register pursuant to Sections 2.11(a) and (b), and
by each Lender in its account or accounts pursuant to Sections 2.11(a) and (b),
shall be prima facie evidence of the amount of principal and interest due and
payable or to become due and payable from the Borrowers to, in the case of the
applicable Register, each applicable Lender and, in the case of such account or
accounts, such Lender, under this Agreement and the other Loan Documents, absent
manifest error; provided that the failure of an Administrative Agent or such
Lender to make an entry, or any finding that an entry is incorrect, in the
applicable Register or such account or accounts shall not limit or otherwise
affect the obligations of any Borrower under this Agreement and the other Loan
Documents.
2.12 Payments Generally. (a) All payments to be made by the
Borrowers shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by any Borrower hereunder shall be made to the applicable
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent's Domestic Office. All
payments shall be made in U.S. Dollars, except that all payments with respect to
Canadian Loans, Canadian Swing Line Loans and Canadian Letters of Credit
denominated in Canadian Dollars (and, for the avoidance of doubt, Canadian
Commitment Fees shall be paid in U.S. Dollars) shall be made in Canadian Dollars
not later than 2:00 p.m. (New York City time) on the date specified herein. The
applicable Administrative Agent will promptly distribute to each applicable
Lender its Pro Rata Share (or other applicable share as provided herein) of such
payment in like funds as received by wire transfer to such Lender's Lending
Office. All payments received by an Administrative Agent after 2:00 p.m. (New
York City time) shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue.
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(b) If any payment to be made by any Borrower shall come due
on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing
interest or fees, as the case may be; provided, however, that, if such extension
would cause payment of interest on or principal of Eurodollar Rate Loans to be
made in the next succeeding calendar month, such payment shall be made on the
immediately preceding Business Day.
(c) Unless a Borrower or any Lender has notified the
applicable Administrative Agent, prior to the date any payment is required to be
made by it to an Administrative Agent hereunder, that such Borrower or Lender,
as the case may be, will not make such payment, the applicable Administrative
Agent may assume that such Borrower or Lender, as the case may be, has timely
made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.
If and to the extent that such payment was not in fact made to the applicable
Administrative Agent in immediately available funds, then:
(i) if the applicable Borrower failed to make such payment,
each Lender shall forthwith on demand repay to the applicable
Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date
such amount was made available by the applicable Administrative Agent
to such Lender to the date such amount is repaid to the applicable
Administrative Agent in immediately available funds at the Federal
Funds Rate (or the Canadian Prime Rate, in the case of payments with
respect to Canadian Dollar denominated Canadian Loans, Canadian Swing
Line Loans or Canadian Letters of Credit) from time to time in effect
or, if greater, a rate determined by the applicable Administrative
Agent in accordance with banking industry rules on interbank
compensation; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the applicable Administrative Agent
the amount thereof in immediately available funds, together with
interest thereon for the period from the date such amount was made
available by the applicable Administrative Agent to the applicable
Borrower to the date such amount is recovered by the applicable
Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum
equal to the Federal Funds Rate (or the Canadian Prime Rate, in the
case of payments with respect to Canadian Dollar denominated Canadian
Loans, Canadian Swing Line Loans or Canadian Letters of Credit) from
time to time in effect or, if greater, a rate determined by the
applicable Administrative Agent in accordance with banking industry
rules on interbank compensation. When such Lender makes payment to the
applicable Administrative Agent (together with all accrued interest
thereon), then such payment amount (excluding the amount of any
interest which may have accrued and been paid in respect of such late
payment) shall constitute such Lender's Loan included in the applicable
Borrowing. If such Lender does not pay such amount forthwith upon the
applicable Administrative Agent's demand therefor, the applicable
Administrative Agent may make a demand therefor upon the applicable
Borrower, and the applicable Borrower shall pay such amount to the
applicable Administrative Agent, together with interest thereon for the
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Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its Commitment or
to prejudice any rights which the applicable Administrative Agent or
the applicable Borrower may have against any Lender as a result of any
default by such Lender hereunder.
A notice of the applicable Administrative Agent to any Lender
or any Borrower with respect to any amount owing under this Section 2.12(c)
shall be conclusive, absent manifest error.
(d) If any Lender makes available to an Administrative Agent
funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Article II, and such funds are not made available to the
applicable Borrower by such Administrative Agent because the conditions to the
applicable Credit Extension set forth in Article IV are not satisfied or waived
in accordance with the terms hereof, such Administrative Agent shall promptly
return such funds (in like funds as received from such Lender) to such Lender,
without interest.
(e) The obligations of the Lenders hereunder to make Loans and
to fund participations in Letters of Credit and Swing Line Loans are several and
not joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(f) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan in any particular place or manner or to constitute
a representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
(g) Whenever any payment received by an Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient to pay
in full all amounts due and payable to such Administrative Agent and the
applicable Lenders under or in respect of this Agreement and the other Loan
Documents on any date, such payment shall be distributed by such Administrative
Agent and applied by such Administrative Agent and the Lenders in the order of
priority set forth in Section 8.03. If an Administrative Agent receives funds
for application to the Obligations of the Loan Parties under or in respect of
the Loan Documents under circumstances for which the Loan Documents do not
specify the manner in which such funds are to be applied, such Administrative
Agent shall distribute such funds to each of the applicable Lenders in
accordance with such Lender's Pro Rata Share of the sum of (a) the Outstanding
Amount of all applicable Loans outstanding at such time and (b) the Outstanding
Amount of all applicable L/C Obligations outstanding at such time, in repayment
or prepayment of such of the outstanding applicable Loans or other applicable
Obligations then owing to such Lender.
2.13 Sharing of Payments. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it, or
the participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) in excess of its ratable share (or other
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share contemplated hereunder) thereof, such Lender shall immediately (a) notify
each Administrative Agent of such fact, and (b) purchase from the other Lenders
such participations in the Loans made by them and/or such subparticipations in
the participations in L/C Obligations or Swing Line Loans held by them, as the
case may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such participations, as the case may
be, pro rata with each of them; provided that prior to the CAM Exchange Date,
each Lender shall only purchase participations in Loans, L/C Obligations and
Swing Line Loans under the Facility with respect to which they hold a
Commitment; provided, further, however, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender under any of
the circumstances described in Section 10.06 (including pursuant to any
settlement entered into by the purchasing Lender in its discretion), such
purchase shall to that extent be rescinded and each other Lender shall repay to
the purchasing Lender the purchase price paid therefor, together with an amount
equal to such paying Lender's ratable share (according to the proportion of (i)
the amount of such paying Lender's required repayment to (ii) 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,
without further interest thereon. Each Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
setoff, but subject to Section 10.09) 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. The applicable Administrative Agent will keep
records (which shall be conclusive and binding in the absence of manifest error)
of participations purchased under this Section 2.13 and will in each case notify
the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section 2.13 shall from and after
such purchase have the right to give all notices, requests, demands, directions
and other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.
2.14 Increase in Term Commitments. (a) Provided there exists
no Default, upon notice to the U.S. Administrative Agent (which shall promptly
notify the Term Lenders), the U.S. Borrower may on up to six (6) different
occasions (in the aggregate with Section 2.15), request additional term loans
(the "INCREMENTAL TERM LOANS" and the related commitments, the "INCREMENTAL TERM
Commitments") in an amount not exceeding $200,000,000; provided that (i) after
giving effect to any such Incremental Term Commitments, the aggregate amount of
Incremental Term Commitments and increased U.S. Revolving Credit Commitments
that have been effected pursuant to this Section 2.14 and Section 2.15,
respectively, shall not exceed $200,000,000 at any time, (ii) any such increase
shall be in an aggregate amount of $500,000 or any whole multiple of $100,000 in
excess thereof and (iii) the Incremental Term Loans (A) shall rank pari passu or
junior in right of payment and right of security in respect of the Collateral
with the Loans existing immediately prior thereto, (B) other than amortization,
pricing or maturity date, shall have the same terms as Term Loans existing
immediately prior to the effectiveness of the applicable Incremental Facility
Amendment; provided that (x) if the interest rate spreads relating to such new
Incremental Term Loans exceeds the Applicable Rate for the Term Loans (for the
corresponding pricing levels) (or any Incremental Term Loans previously
borrowed) by more than 0.50%, then the Applicable Rate for the Term Loans (and
any Incremental Term
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Loans previously borrowed) shall be adjusted to be equal to such interest rate
spreads minus 0.50%, (y) the Incremental Term Loans shall not have a final
maturity date earlier than the Maturity Date of the Term Loans and (iii) the
Incremental Term Loans shall not have a Weighted Average Life to Maturity that
is shorter than that of the then-remaining Weighted Average Life to Maturity of
the Term Loans and any previously borrowed Incremental Term Loans. At the time
of the sending of such notice, the U.S. Borrower (in consultation with the U.S.
Administrative Agent) shall specify the time period within which each Lender is
requested to respond (which shall in no event be less than ten (10) Business
Days from the date of delivery of such notice to the Lenders). Each Lender with
a Term Loan shall notify the U.S. Administrative Agent within such time period
whether or not it agrees to such Incremental Term Commitment and, if so, whether
by an amount equal to, greater than, or less than its Pro Rata Share of the
total Incremental Term Loans so requested. Any Lender not responding within such
time period shall be deemed to have declined to increase its Term Commitment
and, to the extent any Term Lender declines to make available its Pro Rata share
of such increase the U.S. Borrower may also invite additional Eligible Assignees
to become Lenders. The U.S. Administrative Agent shall notify the U.S. Borrower
and each Term Loan Lender of the Lenders' responses to each request made
hereunder. Any Term Lender or additional bank or financial institution electing
to make available an Incremental Term Commitment (an "ADDITIONAL TERM LENDER")
shall become a Lender or make its Incremental Term Commitment available, as the
case may be, under this Agreement, pursuant to an amendment (an "INCREMENTAL
FACILITY AMENDMENT") to this Agreement, giving effect to the modifications
permitted by this Section 2.14, and, as appropriate, the other Loan Documents,
executed by, the U.S. Loan Parties, each Additional Term Lender and the U.S.
Administrative Agent. An Incremental Facility Amendment may, without the consent
of any other Lenders, effect such amendments to this Agreement and the other
Loan Documents as may be necessary or appropriate, in the opinion of the U.S.
Administrative Agent, to effect the provisions of this Section (including voting
provisions applicable to the Additional Term Lenders as a separate Tranche with
respect to matters relating to such Incremental Term Loans).
(b) If any Incremental Term Commitments are made in accordance
with this Section 2.14, the U.S. Administrative Agent and the U.S. Borrower
shall determine the effective date (the "TERM COMMITMENTS INCREASE EFFECTIVE
DATE") and the final allocation of such increase. The U.S. Administrative Agent
shall promptly notify the U.S. Borrower and the Lenders of the final allocation
of such increase and the Term Commitments Increase Effective Date. As a
condition precedent to such increase, the U.S. Borrower shall deliver to the
U.S. Administrative Agent a certificate of each Loan Party dated as of the Term
Commitments Increase Effective Date signed by a Responsible Officer of such Loan
Party (i) certifying and attaching (A) the resolutions adopted by such Loan
Party approving or consenting to such increase and (B) a pro forma Compliance
Certificate demonstrating that, upon after giving Pro Forma Effect to such
increase, the Loan Parties would be in compliance with the financial covenants
set forth in Section 7.11, and (ii) in the case of the U.S. Borrower, certifying
that, before and after giving effect to such increase, (A) the representations
and warranties contained in Article V and the other Loan Documents are true and
correct in all material respects on and as of the Term Commitments Increase
Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date, and except that for purposes
of this Section 2.14, the
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representations and warranties contained in subsections (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished pursuant
to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default
exists.
(c) This Section shall supersede any provisions in Section
10.01 to the contrary.
2.15 Increase in Revolving Credit Commitments. (a) Provided
there exists no Default, upon notice to the U.S. Administrative Agent (which
shall promptly notify the Lenders), the U.S. Borrower may on up to six (6)
different occasions (in the aggregate with Section 2.14) request an increase in
the U.S. Revolving Credit Commitments on the same terms as the U.S. Revolving
Credit Commitments on the Closing Date by an amount not exceeding $100,000,000;
provided that (i) after giving effect to any such increase in the U.S. Revolving
Credit Commitments, the aggregate amount of increased Commitments that have been
effected pursuant to Section 2.14 and this Section 2.15 shall not exceed
$200,000,000 at any time and (ii) any such increase shall be in an aggregate
amount of $500,000 or any whole multiple of $100,000 in excess thereof. At the
time of the sending of such notice, the U.S. Borrower (in consultation with the
U.S. Administrative Agent) shall specify the time period within which each
Lender is requested to respond (which shall in no event be less than ten (10)
Business Days from the date of delivery of such notice to the Lenders). Each
Lender with a U.S. Revolving Loan Commitment shall notify the U.S.
Administrative Agent within such time period whether or not it agrees to
increase its U.S. Revolving Credit Commitment and, if so, whether by an amount
equal to, greater than, or less than its Pro Rata Share of such requested
increase. Any Lender not responding within such time period shall be deemed to
have declined to increase its U.S. Revolving Credit Commitment and, to the
extent any such Lender declines to accept its Pro Rata Share of such increase,
the U.S. Borrower may also invite additional Eligible Assignees to become U.S.
Revolving Credit Lenders. Any new U.S. Revolving Credit Lender shall become a
Lender hereunder pursuant to a joinder agreement in form and substance
reasonably satisfactory to the U.S. Administrative Agent and its counsel, which
joinder shall not require the consent of any Lenders other than those
participating in the incremental Revolving Credit Commitments. The U.S.
Administrative Agent shall notify the U.S. Borrower and each Lender of the
Lenders' responses to each request made hereunder.
(b) If the U.S. Revolving Credit Commitments are increased in
accordance with this Section 2.15, the U.S. Administrative Agent and the U.S.
Borrower shall determine the effective date (the "REVOLVING CREDIT COMMITMENTS
INCREASE EFFECTIVE DATE") and the final allocation of such increase. The U.S.
Administrative Agent shall promptly notify the U.S. Borrower and the Lenders of
the final allocation of such increase and the Revolving Credit Commitments
Increase Effective Date. As a condition precedent to such increase, the U.S.
Borrower shall deliver to the U.S. Administrative Agent a certificate of each
Loan Party dated as of the Revolving Credit Commitments Increase Effective Date
signed by a Responsible Officer of such Loan Party (i) certifying and attaching
(A) the resolutions adopted by such Loan Party approving or consenting to such
increase and (B) a pro forma Compliance Certificate demonstrating that, after
giving pro forma effect to such increase, the Loan Parties would be in
compliance with the financial covenants set forth in Section 7.11, and (ii) in
the case of the U.S. Borrower, certifying that, before and after giving effect
to such increase, (A) the representations
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and warranties contained in Article V and the other Loan Documents are true and
correct in all material respects on and as of the Revolving Credit Commitments
Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date, and except that
for purposes of this Section 2.15, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to subsections (a) and (b), respectively,
of Section 6.01, and (B) no Default exists. On each Revolving Credit Commitments
Increase Effective Date, each of the Lenders having a U.S. Revolving Credit
Commitment prior to such Revolving Credit Commitments Increase Effective Date
(the "PRE-INCREASE REVOLVING LENDERS") shall assign to any Lender which is
acquiring a new or additional Revolving Credit Commitment on the Revolving
Credit Commitments Increase Effective Date (the "POST-INCREASE REVOLVING
LENDERS"), and such Post-Increase Revolving Lenders shall purchase from each
Pre-Increase Revolving Lenders, at the principal amount thereof, such interests
in the U.S. Revolving Loans and participation interests in U.S. L/C Obligations
and U.S. Swing Line Loans outstanding on such Revolving Credit Commitments
Increase Effective Date as shall be necessary in order that, after giving effect
to all such assignments and purchases, such U.S. Revolving Loans and
participation interests in U.S. L/C Obligations and U.S. Swing Line Loans will
be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders
ratably in accordance with their U.S. Revolving Credit Commitments after giving
effect to such increased U.S. Revolving Credit Commitments.
(c) This Section 2.15 shall supersede any provisions in
Section 10.01 to the contrary.
2.16 Canadian BAs. (a) Not in limitation of any other
provision of this Agreement, but in furtherance thereof, the provisions of this
Section 2.16 shall further apply to the acceptance, rolling over and conversion
of Canadian BAs.
(b) If the Canadian Administrative Agent receives a Committed
Loan Notice from a Canadian Borrower requesting a Borrowing or a rollover of or
a conversion into a Canadian Loan by way of Canadian BAs, the Canadian
Administrative Agent shall notify each of the applicable Canadian Lenders, prior
to 11:00 a.m., New York City time, on the second Business Day prior to the date
of such Credit Extension, of such request and of each such Canadian Lender's Pro
Rata Share of such Canadian Loan. Each applicable Canadian Lender shall, not
later than 11:00 a.m., New York City time, on the date of each Canadian Loan by
way of Canadian BAs (whether in respect of the Credit Extension or pursuant to a
rollover or conversion), accept drafts of a Canadian Borrower which are
presented to it for acceptance and which have an aggregate face amount equal to
such Canadian Lender's Pro Rata Share of the total Credit Extension being made
available by way of Canadian BAs on such date. With respect to each drawdown of,
rollover of or conversion into Canadian BAs, each such Canadian Lender shall not
be required to accept any draft which has a face amount which is not in an
integral multiple of Cdn$100,000. It shall be the responsibility of each
Canadian Lender to arrange, in accordance with normal market practice, for the
sale on the date of each Canadian Loan by way of Canadian BAs of the Canadian
BAs issued by the applicable Canadian Borrower and to be accepted by that
Canadian Lender, failing which such Canadian Lender shall purchase such Canadian
BAs in accordance with normal market practice at or about 10:00 a.m. (New York
City
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time) on the date of such Canadian Loan (and for greater certainty, all such
references in this Agreement to the "acceptance" of Canadian BAs shall be deemed
to include the "purchase" of Canadian BAs, as the context may require).
Concurrent with the acceptance of drafts of a Canadian Borrower as aforesaid,
each applicable Canadian Lender shall make available to the Canadian
Administrative Agent the aggregate Notional BA Proceeds with respect to the
Canadian BAs being accepted and sold or purchased by such Canadian Lender (net
of the aggregate amount required to repay such Canadian Lender's outstanding
Canadian BAs that are maturing on such date and/or Canadian Prime Rate Loans of
such Canadian Lender that are being converted on such date). The Canadian
Administrative Agent shall, upon fulfillment by a Canadian Borrower of the
applicable terms and conditions set forth in Article IV, make such amount, if
any, received from the applicable Canadian Lenders available to a Canadian
Borrower on the date of such Credit Extension by crediting the designated
account of the Canadian Borrower. Each Canadian BA to be accepted by any
Canadian Lender shall be accepted by such Canadian Lender at its Domestic Office
located in Canada.
(c) To facilitate the acceptance of Canadian BAs hereunder,
each Canadian Borrower hereby appoints each Canadian Lender as its attorney to
sign and endorse on its behalf, as and when considered necessary by the Canadian
Lender, an appropriate number of drafts in the form prescribed by that Canadian
Lender. Each Canadian Lender may, at its option, execute any draft in
handwriting or by the facsimile or mechanical signature of any of its authorized
officers, and the Canadian Lenders are hereby authorized to accept or pay, as
the case may be, any draft of a Canadian Borrower which purports to bear such a
signature notwithstanding that any such individual has ceased to be an
authorized officer of the Canadian Lender, in which case any such draft or
Canadian BA shall be as valid as if he or she were an authorized officer at the
date of issue of the draft or Canadian BA. Any drafts or Canadian BA signed by a
Canadian Lender as attorney for a Canadian Borrower, whether signed in
handwriting or by the facsimile or mechanical signature of an authorized officer
of a Canadian Lender, may be dealt with by the Canadian Administrative Agent or
any Canadian Lender to all intents and purposes and shall bind the Canadian
Borrower as if duly signed and issued by a Canadian Borrower. The receipt by the
Canadian Administrative Agent of a request for a Borrowing by way of Canadian
BAs shall be each applicable Canadian Lender's sufficient authority to execute,
and each applicable Canadian Lender shall, subject to the terms and conditions
of this Agreement, execute drafts in accordance with such request and the advice
of the Canadian Revolving Administrative Agent given pursuant to this Section
2.16 and the drafts so executed shall thereupon be deemed to have been presented
for acceptance.
(d) Each Canadian Borrower and each applicable Canadian Lender
hereby acknowledge and agree that from time to time certain Canadian Lenders may
not be authorized to or may, as a matter of general corporate policy, elect not
to accept Canadian BA drafts, and the Canadian Borrower and each applicable
Canadian Lender agrees that any such Canadian Lender may purchase Acceptance
Notes of a Canadian Borrower in accordance with the provisions of Section
2.16(e) in lieu of accepting Canadian BAs for its account.
(e) In the event that any Canadian Lender described in Section
2.16(d) above is unable to, or elects as a matter of general corporate policy
not to, accept Canadian BAs hereunder, such Canadian Lender shall not accept
Canadian BAs hereunder, but rather, if a
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Canadian Borrower requests the acceptance of such Canadian BAs, such Canadian
Borrower shall deliver to such Canadian Lender non-interest bearing promissory
notes (each, an "ACCEPTANCE NOTE") of such Canadian Borrower, substantially in
the form of Exhibit N hereto, having the same maturity as the Canadian BAs that
would otherwise be accepted by such Canadian Lender and in an aggregate
principal amount equal to the undiscounted face amount of such Canadian BAs.
Each such Canadian Lender hereby agrees to purchase each Acceptance Note from
any Canadian Borrower at a purchase price equal to the Notional BA Proceeds for
a Lender which would have been applicable if a Canadian BA draft had been
accepted by such Lender and such Acceptance Notes shall be governed by the
provisions of this Article II as if they were Canadian BAs.
(f) On the date of maturity of each Canadian BA, the
applicable Canadian Borrower shall pay to the Canadian Administrative Agent, for
the account of the holder of such Canadian BA, Canadian Dollars in an amount
equal to the face amount of such Canadian BA, provided that the applicable
Canadian Borrower may, at its option, so reimburse the applicable Canadian
Lenders, in whole or in part, by delivering to the Canadian Administrative Agent
a Committed Loan Notice contemplated in Section 2.02(g). The obligation of the
applicable Canadian Borrower to make such payment shall not be prejudiced by the
fact that the holder of any such Canadian BA is the Canadian Lender that
accepted such Canadian BA. No days of grace shall be claimed by the Canadian
Borrower for the payment at maturity of any Canadian BA. If the applicable
Canadian Borrower does not make such payment and has not given such conversion
notice, the amount of such required payment shall be deemed to be a Canadian
Prime Rate Loan made to the applicable Canadian Borrower by the Canadian Lenders
that accepted such Canadian BA or purchased such Acceptance Note. The Canadian
Borrowers hereby confirm the application of the proceeds of such Canadian Prime
Rate Loan in payment of the liability of such Canadian Borrower with respect to
the related Canadian BA or Acceptance Note.
2.17 Additional Canadian Borrowers. The U.S. Borrower may, at
its sole option, elect to cause any Canadian Subsidiary of the U.S. Borrower to
become a Canadian Borrower hereunder by executing and delivering to the U.S.
Administrative Agent (in each case to the extent not previously executed and
delivered by such Canadian Subsidiary) a joinder agreement to this Agreement,
the Canadian Guaranty and the applicable Collateral Documents, in each case, in
form and substance satisfactory to the Canadian Administrative Agent, together
with such customary opinions and other documents as the Canadian Administrative
Agent may reasonably request.
ARTICLE III
TAXES, INCREASED COSTS PROTECTION AND ILLEGALITY
3.01 Taxes. (a) Except as provided in this Section 3.01 or as
otherwise expressly provided in this Agreement, any and all payments by the
Borrowers to or for the account of any Agent or any Lender under any Loan
Document shall be made free and clear of and without reduction for or on account
of any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities
(including additions to tax, penalties and interest) with respect thereto,
excluding, in the case of
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each Agent and each Lender, taxes imposed on or measured by its net income
(including branch profits), and capital and franchise (and similar) taxes
imposed on it in lieu of net income taxes, by the jurisdiction (or any political
subdivision thereof) under the Laws of which such Agent or such Lender, as the
case may be, is organized or maintains a lending office, and all liabilities
(including additions to tax, penalties and interest) with respect thereto (all
such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "TAXES"). If the Borrowers shall be required by any Laws to deduct or
withhold any Taxes from or in respect of any sum payable under any Loan Document
to any Agent or any Lender, (i) the sum payable shall be increased as necessary
so that after making all required deductions or withholdings (including amounts
applicable to additional sums payable under this Section 3.01), each of such
Agent and such Lender receives an amount equal to the sum it would have received
had no such deductions or withholdings been made, (ii) the Borrowers shall make
such deductions, (iii) the Borrowers shall pay the full amount deducted or
withheld to the relevant taxation authority or other authority in accordance
with applicable Laws, and (iv) within thirty (30) days after the date of such
payment, the Borrowers shall furnish to such Agent or Lender (as the case may
be) the original or a certified copy of a receipt evidencing payment thereof to
the extent such a receipt is issued therefor, or other written proof of payment
thereof that is reasonably satisfactory to the applicable Administrative Agent.
(b) In addition, each Borrower agrees to pay any and all
present or future stamp, court or documentary taxes and any other excise, sales,
goods and services, property, intangible or mortgage recording taxes or charges
or similar levies which arise from any payment made under any Loan Document or
from the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to the exercise by an Agent or a Lender of its rights
under, any Loan Document (hereinafter referred to as "OTHER TAXES").
(c) Each Borrower agrees to indemnify each Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 3.01) paid by such Agent or such Lender, and (ii) any liability
(including additions to tax, penalties, interest and expenses) arising therefrom
or with respect thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority; provided such Agent or Lender, as the case may be, provides
applicable Borrower with a written statement thereof setting forth in reasonable
detail the basis and calculation of such amounts. Payment under this Section
3.01(c) shall be made within thirty (30) days after the date such Lender or such
Agent makes a written demand therefor.
(d) No Borrower shall be required pursuant to this Section
3.01 to pay any additional amount to, or to indemnify, any Lender or Agent, as
the case may be, to the extent that such Lender or such Agent becomes subject to
Taxes subsequent to the Closing Date (or, if later, the date such Lender or
Agent becomes a party to this Agreement) as a result of a change in the place of
organization of such Lender or Agent or a change in the lending office of such
Lender, except to the extent that any such change is requested or required by a
Borrower (and provided that nothing in this clause (d) shall be construed as
relieving any Borrower from any obligation to make such payments or
indemnification (i) in accordance with Section 3.04 in the event of a
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change that is a change in Law and (ii) in accordance with the other provisions
of this Section 3.01 in connection with an assignment made pursuant to a CAM
Exchange).
(e) If the forms provided by a Lender or an Agent pursuant to
Section 10.15(a) at the time such Lender or such Agent, as the case may be,
first becomes a party to this Agreement (or first becomes a U.S. Lender other
than as a result of a CAM Exchange) indicate a United States withholding tax
rate in excess of zero, United States withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender or Agent, as the
case may be, provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such forms; provided, however, that,
if at the date of the Assignment and Acceptance pursuant to which a Lender
becomes a party to this Agreement, the Lender assignor was entitled to payments
under clause (a) of this Section 3.01 in respect of United States withholding
tax with respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to United States withholding taxes that may be
imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date.
(f) Notwithstanding any provision of this Section 3.01 (except
the last sentence of this Section 3.01(f)), no Canadian Loan Party shall have
any obligation to gross-up, pay or indemnify any Secured Party (including, for
such purpose, any L/C Issuer, Participant or SPC), their successors and assigns,
that is not a Canadian Person for Taxes imposed pursuant to Part XIII of the
Income Tax Act (Canada) (or any successor provision thereto) as a result of such
Secured Party not being a Canadian Person, unless such Canadian Loan Party
otherwise agrees in writing to do so, and each Canadian Loan Party shall deduct
or withhold any such Taxes required by any Laws to be deducted or withheld by
it. Each Secured Party (including any L/C Issuer, Participant or SPC) shall,
upon request by a Canadian Loan Party, confirm to the Canadian Loan Party if it
is or is not a Canadian Person and indemnify each Canadian Loan Party in respect
of any inaccuracy of such confirmation. This Section 3.01(f) shall not apply to
any Secured Party (including any L/C Issuer, Participant or SPC) which becomes a
Secured Party (including any L/C Issuer, Participant or SPC) as a result of an
assignment made in connection with a CAM Exchange.
(g) If any Lender or Agent determines that it has received a
refund or overpayment credit in respect of any Taxes or Other Taxes as to which
indemnification or additional amounts have been paid to it by the Borrowers
pursuant to this Section 3.01, it shall promptly remit the amount of such refund
or credit (including any interest included in such refund or credit) to the
applicable Borrower (to the extent that it reasonably determines that it can do
so without prejudice to the retention of the refund or credit), net of all
out-of-pocket expenses of the Lender or Agent, as the case may be; provided,
however, that the applicable Borrower, upon the request of the Lender or Agent,
as the case may be, agrees promptly to return such refund or credit to such
party in the event such party is required to repay such refund or credit to the
relevant taxing authority. Such Lender or Agent, as the case may be, shall, at
the applicable Borrower's request, provide the applicable Borrower with a copy
of any notice of assessment or other evidence of the requirement to repay such
refund or credit received from the relevant taxing authority (provided that such
Lender or Agent may delete any information therein that
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such Lender or Agent deems confidential). Nothing herein contained shall
interfere with the right of a Lender or Agent to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Lender or Agent to claim any tax
refund or to disclose any information relating to its tax affairs or any
computations in respect thereof or require any Lender or Agent to do anything
that would prejudice its ability to benefit from any other refunds, credits,
reliefs, remissions or repayments to which it may be entitled.
(h) Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 3.01(a) or (c) with respect to such
Lender it will, if requested by any Borrower, use commercially reasonable
efforts (subject to such Lender's overall internal policies of general
application and legal and regulatory restrictions) to avoid the consequences of
such event, including to designate another Lending Office for any Loan or Letter
of Credit affected by such event; provided that such efforts are made on terms
that, in the reasonable judgment of such Lender, cause such Lender and its
Lending Office(s) to suffer no material economic, legal or regulatory
disadvantage; and provided, further, that nothing in this Section 3.01(h) shall
affect or postpone any of the Obligations of any Borrower or the rights of such
Lender pursuant to Sections 3.01(a) and (c).
3.02 Illegality. If any Lender determines that any Law has
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Eurodollar Rate Loans, or to determine or charge interest rates based upon
the Eurodollar Rate, then, on notice thereof by such Lender to the U.S. Borrower
through the applicable Administrative Agent, any obligation of such Lender to
make or continue Eurodollar Rate Loans or to convert Base Rate Loans to
Eurodollar Rate Loans shall be suspended until such Lender notifies the
applicable Administrative Agent and the applicable Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the applicable Borrower shall, upon demand from such Lender (with a
copy to the applicable Administrative Agent), prepay or, if applicable, convert
all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last
day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the applicable Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate
a different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.
3.03 Inability To Determine Rates. (a) If the applicable
Requisite Class Lenders determine that for any reason adequate and reasonable
means do not exist for determining the Eurodollar Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan, or that the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan does not adequately and fairly reflect the cost to such
Lenders of funding such Loan, or that Dollar deposits are not being offered to
banks in the London interbank eurodollar market for the applicable amount and
the Interest Period of such Eurodollar Rate Loan, the applicable Administrative
Agent will promptly so notify the applicable Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the applicable Administrative Agent
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(upon the instruction of the applicable Requisite Class Lenders) revokes such
notice. Upon receipt of such notice, the applicable Borrower may revoke any
pending request for a Borrowing of, conversion to or continuation of Eurodollar
Rate Loans or, failing that, will be deemed to have converted such request into
a request for a Borrowing of Base Rate Loans in the amount specified therein.
(b) If the Canadian Administrative Agent shall have determined in
good faith that by reason of circumstances affecting the Canadian money market,
there is no market for Canadian BAs, then the right of the Canadian Borrowers to
request the acceptance of Canadian BAs and the acceptance thereof shall be
suspended until the Canadian Administrative Agent determines that the
circumstances causing such suspension no longer exist and the Canadian
Administrative Agent so notifies the Canadian Borrowers.
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves
on Eurodollar Rate Loans. (a) If any Lender determines that as a result of the
introduction of or any change in or in the interpretation of any Law, in each
case after the date hereof, or such Lender's compliance therewith, there shall
be any increase in the cost to such Lender of agreeing to make or making,
funding or maintaining Eurodollar Rate Loans or issuing or participating in
Letters of Credit or accepting and purchasing or selling any Canadian BA, or a
reduction in the amount received or receivable by such Lender in connection with
any of the foregoing (excluding for purposes of this Section 3.04(a) any such
increased costs or reduction in amount resulting from (i) Taxes or Other Taxes
(as to which Section 3.01 shall govern), (ii) changes in the basis of taxation
of net income or gross income (including branch profits), capital and franchise
(and similar) taxes imposed in lieu of net income taxes, by the United States or
any foreign jurisdiction or any political subdivision of either thereof under
the Laws of which such Lender is organized or maintains a lending office, and
(iii) reserve requirements contemplated by Section 3.04(c)), then from time to
time upon demand of such Lender setting forth in reasonable detail such
increased costs (with a copy of such demand to the applicable Administrative
Agent given in accordance with Section 3.06), the U.S. Borrower (in the case of
any payment to any U.S. Lender) or the Canadian Borrowers (in the case of any
payment to a Canadian Lender) shall pay to such Lender such additional amounts
as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy, reserve requirements or similar requirements or any
change therein or in the interpretation thereof, in each case after the date
hereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender setting forth in reasonable detail the charge
and the calculation of such reduced rate of return (with a copy of such demand
to the applicable Administrative Agent given in accordance with Section 3.06),
the U.S. Borrower (in the case of any payment to any U.S. Lender) or the
Canadian Borrowers (in the case of any payment to a Canadian Lender) shall pay
to such Lender such additional amounts as will compensate such Lender for such
reduction.
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(c) The U.S. Borrower (in the case of any payment to any U.S.
Lender) or the Canadian Borrowers (in the case of any payment to a Canadian
Lender) shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "EUROCURRENCY
LIABILITIES"), additional interest on the unpaid principal amount of each
Eurodollar Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive in the absence of manifest error), which shall
be due and payable on each date on which interest is payable on such Loan;
provided the applicable Borrower shall have received at least fifteen (15) days'
prior notice (with a copy to the applicable Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice fifteen
(15) days prior to the relevant Interest Payment Date, such additional interest
shall be due and payable fifteen (15) days from receipt of such notice.
(d) No Borrower shall be required to compensate a Lender pursuant
to Section 3.04(a), (b), (c) or (d) for any such increased cost or reduction
incurred more than one hundred eighty (180) days prior to the date that such
Lender demands, or notifies such Borrower of its intention to demand,
compensation therefor; provided that, if the circumstance giving rise to such
increased cost or reduction is retroactive, then such 180-day period referred to
above shall be extended to include the period of retroactive effect thereof.
(e) If any Lender requests compensation under this Section 3.04,
then such Lender will, if requested by the U.S. Borrower, use commercially
reasonable efforts to designate another Lending Office for any Loan or Letter of
Credit affected by such event; provided that such efforts are made on terms
that, in the reasonable judgment of such Lender, do not cause such Lender and
its Lending Office(s) to suffer to material economic, legal or regulatory
disadvantage, and provided further that nothing in this Section 3.04(e) shall
affect or postpone any of the Obligations of any Borrower or the rights of such
Lender pursuant to Section 3.04(a), (b) or (c).
3.05 Funding Losses. Upon demand of any Lender (with a copy to the
U.S. Administrative Agent) from time to time, the U.S. Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or
expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any
Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by
reason of acceleration, or otherwise); or
(b) any failure by the U.S. Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, continue or
convert any Loan other than a Base Rate Loan on the date or in the amount
notified by the U.S. Borrower;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.
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For purposes of calculating amounts payable by the U.S. Borrower to
the Lenders under this Section 3.05, each Lender shall be deemed to have funded
each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the London interbank eurodollar market
for a comparable amount and for a comparable period, whether or not such
Eurodollar Rate Loan was in fact so funded.
3.06 Matters Applicable to All Requests for Compensation. (a) A
certificate of any Agent or any Lender claiming compensation under this Article
III and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. In determining
such amount, such Agent or such Lender may use any reasonable averaging and
attribution methods.
(b) With respect to any Lender's claim for compensation under
Section 3.01, 3.02, 3.03 or 3.04, no Borrower shall be required to compensate
such Lender for any amount incurred more than one hundred eighty (180) days
prior to the date that such Lender notifies such Borrower of the event that
gives rise to such claim; provided that, if the circumstances giving rise to
such claim are retroactive, then such 180-day period shall be extended to
include the period of retroactive effect thereof. If any Lender requests
compensation by any Borrower under Section 3.04, such Borrower may, by notice to
such Lender (with a copy to the applicable Administrative Agent), suspend the
obligation of such Lender to make or continue from one Interest Period to
another Eurodollar Rate Loans, or to convert Base Rate Loans into Eurodollar
Rate Loans, until the event or condition giving rise to such request ceases to
be in effect (in which case the provisions of Section 3.06(c) shall be
applicable); provided that such suspension shall not affect the right of such
Lender to receive the compensation so requested.
(c) If the obligation of any Lender to make or continue from one
Interest Period to another any Eurodollar Rate Loan, or to convert Base Rate
Loans into Eurodollar Rate Loans shall be suspended pursuant to Section 3.06(b)
hereof, such Lender's Eurodollar Rate Loans shall be automatically converted
into Base Rate Loans on the last day(s) of the then current Interest Period(s)
for such Eurodollar Rate Loans (or, in the case of an immediate conversion
required by Section 3.02, on such earlier date as required by Law) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 3.01, 3.02, 3.03 or 3.04 hereof that gave rise to such
conversion no longer exist:
(i) to the extent that such Lender's Eurodollar Rate Loans have
been so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Rate Loans shall be
applied instead to its Base Rate Loans; and
(ii) all Loans that would otherwise be made or continued from one
Interest Period to another by such Lender as Eurodollar Rate Loans shall
be made or continued instead as Base Rate Loans, and all Base Rate Loans
of such Lender that would otherwise be converted into Eurodollar Rate
Loans shall remain as Base Rate Loans.
(d) If any Lender gives notice to any Borrower (with a copy to the
Agent) that the circumstances specified in Section 3.01, 3.02, 3.03 or 3.04
hereof that gave rise to the conversion of such Lender's Eurodollar Rate Loans
pursuant to this Section 3.06 no longer exist (which such Lender agrees to do
promptly upon such circumstances ceasing to exist) at a time
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when Eurodollar Rate Loans made by other Lenders are outstanding, such Lender's
Base Rate Loans shall be automatically converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Eurodollar Rate Loans,
to the extent necessary so that, after giving effect thereto, all Loans held by
the Lenders holding Eurodollar Rate Loans and by such Lender are held pro rata
(as to principal amounts, interest rate basis, and Interest Periods) in
accordance with their respective Commitments.
3.07 Replacement of Lenders Under Certain Circumstances. (a) If at
any time (i) any Borrower becomes obligated to pay additional amounts or
indemnity payments described in Section 3.01 or 3.04 as a result of any
condition described in such Sections or any Lender ceases to make Eurodollar
Rate Loans as a result of any condition described in Section 3.02 or 3.03, or
(ii) any Lender becomes a Defaulting Lender, then the applicable Borrower may,
on ten (10) Business Days' prior written notice to the applicable Administrative
Agent and such Lender, either (i) replace such Lender by causing such Lender to
(and such Lender shall be obligated to) assign pursuant to Section 10.07(b)
(with the assignment fee to be paid by the applicable Borrower in such instance)
all of its rights and obligations under this Agreement to one or more Eligible
Assignees; provided that no Administrative Agent or Lender shall have any
obligation to such Borrower to find a replacement Lender or other such Person or
(ii) terminate the Commitment of such Lender and repay all obligations of such
Borrower owing to such Lender relating to the Loans and participations held by
such Lender as of such termination date.
(b) Any Lender being replaced pursuant to Section 3.07(a) above
shall (i) execute and deliver an Assignment and Assumption with respect to such
Lender's Commitment and outstanding Loans and participations in L/C Obligations
and Swing Line Loans, and (ii) deliver any Notes evidencing such Loans to the
applicable Borrower(s) or applicable Administrative Agent. Pursuant to such
Assignment and Assumption, (i) the assignee Lender shall acquire all or a
portion, as the case may be, of the assigning Lender's Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans,
(ii) all obligations of the applicable Borrower(s) owing to the assigning Lender
relating to the Loans and participations so assigned shall be paid in full by
the assignee Lender to such assigning Lender concurrently with such assignment
and assumption and (iii) upon such payment and, if so requested by the assignee
Lender, delivery to the assignee Lender of the appropriate Note or Notes
executed by the applicable Borrower or Borrowers, the assignee Lender shall
become a Lender hereunder and the assigning Lender shall cease to constitute a
Lender hereunder with respect to such assigned Loans, Commitments and
participations, except with respect to indemnification provisions under this
Agreement, which shall survive as to such assigning Lender.
(c) Notwithstanding anything to the contrary contained above, (i)
no Lender that acts as an L/C Issuer may be replaced hereunder at any time that
it has any Letter of Credit outstanding hereunder unless arrangements
satisfactory to such L/C Issuer (including the furnishing of a back-up standby
letter of credit in form and substance, and issued by an issuer reasonably
satisfactory to such L/C Issuer or the depositing of cash collateral into a cash
collateral account in amounts and pursuant to arrangements reasonably
satisfactory to such L/C Issuer) have been made with respect to such outstanding
Letter of Credit and (ii) the Lenders that
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act as the Administrative Agents may not be replaced hereunder except in
accordance with the terms of Section 9.09.
3.08 Survival. All of the Borrowers' obligations under this Article
III shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) The U.S. Administrative Agent's satisfaction that
substantially concurrently with the initial Credit Extensions it shall
receive each of the following, each of which shall be originals or
facsimiles (followed promptly by originals) unless otherwise specified,
each properly executed by a Responsible Officer of the signing Loan Party,
each in form and substance reasonably satisfactory to the U.S.
Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and each
Guaranty;
(ii) a Note executed by each applicable Borrower in favor of
each Lender requesting a Note;
(iii) the U.S. Security Agreement, duly executed by each U.S.
Loan Party, together with:
(A) certificates representing the Pledged Interests
referred to therein accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt
(including, without limitation, the Intercompany Note)
indorsed in blank,
(B) copies of proper financing statements, duly
prepared for filing under the Uniform Commercial Code in all
jurisdictions that the Administrative Agent may deem
reasonably necessary or desirable in order to perfect and
protect the Liens created under the U.S. Security Agreement,
covering the Collateral described in the U.S. Security
Agreement,
(C) evidence that all other actions, recordings and
filings of or with respect to the U.S. Security Agreement that
the U.S. Administrative Agent may deem reasonably necessary or
desirable in order to perfect and protect the Liens created
thereby shall have been taken, completed or otherwise provided
for in a manner reasonably satisfactory to the U.S.
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Administrative Agent (including, without limitation, receipt
of duly executed payoff letters and UCC-3 termination
statements);
(iv) the Canadian Security Agreement, duly executed by the
Canadian Loan Parties, together with:
(A) copies of proper financing statements and/or
registration forms, duly prepared for filing under the PPSA
and/or registration in all jurisdictions that the Canadian
Administrative Agent may deem reasonably necessary or
desirable in order to perfect and protect the Liens created
under the Canadian Security Agreement and/or render such Liens
opposable to third parties, covering the Collateral described
in the Canadian Security Agreement and
(B) evidence that all other actions, recordings and
filings of or with respect to the Canadian Security Agreement
that the Canadian Administrative Agent may deem reasonably
necessary or desirable in order to perfect and protect and/or
render such Liens opposable to third parties the Liens created
thereby shall have been taken, completed or otherwise provided
for in a manner reasonably satisfactory to the Canadian
Administrative Agent (including, without limitation, receipt
of duly executed payoff letters, PPSA termination statements
and/or discharges, as applicable);
(v) the Intellectual Property Security Agreement, duly
executed by each applicable U.S. Loan Party, together with evidence
that all action that the U.S. Administrative Agent in its reasonable
judgment may deem reasonably necessary or desirable in order to
perfect and protect the Liens created under the Intellectual
Property Security Agreement has been taken;
(vi) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible
Officers of each Loan Party as the Administrative Agents may require
evidencing the identity, authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which
such Loan Party is a party or is to be a party;
(vii) such documents and certifications as the Administrative
Agents may reasonably require to evidence that each Loan Party is
duly organized or formed, and that each of the Borrowers and the
Guarantors is validly existing, in good standing and qualified to
engage in business in each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires
such qualification, except to the extent that failure to be so
qualified could not reasonably be expected to have a Material
Adverse Effect;
(viii) an opinion of Ropes & Xxxx LLP, counsel to the Loan
Parties, addressed to each Agent and each Lender, as to the matters
set forth in Exhibit J-1,
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and as to such other matters concerning the Loan Parties and the
Loan Documents as the Administrative Agents shall reasonably
request;
(ix) an opinion of Xxxxxx Xxxxxx Gervais LLP, Canadian
counsel to the Loan Parties, addressed to each Agent and each
Lender, as to matters set forth in Exhibit J-2, and as to such other
matters concerning the Loan Parties and the Loan Documents as the
Administrative Agents shall reasonably request;
(x) opinions of local counsel for the Loan Parties,
addressed to each Agent and each Lender, as to the matters set forth
in Exhibit J-3, and as to such other matters concerning the Loan
Parties and the Loan Documents as the Administrative Agents shall
reasonably request;
(xi) Mortgages encumbering the Real Properties set forth on
Schedule 1.01(a) duly executed by the appropriate U.S. Loan Parties,
together with:
(A) evidence that counterparts of the Mortgages have
been duly executed, acknowledged and delivered and are in form
suitable for filing or recording in all filing or recording
offices that the U.S. Administrative Agent may deem reasonably
necessary or desirable in order to create a valid and
subsisting perfected Lien on the property described therein in
favor of the U.S. Administrative Agent for the benefit of the
Secured Parties and that all filing and recording taxes and
fees have been paid or otherwise provided for in a manner
reasonably satisfactory to the U.S. Administrative Agent;
(B) fully paid American Land Title Association
Lender's Extended Coverage title insurance policies or the
equivalent or other form available in each applicable
jurisdiction (the "MORTGAGE POLICIES") in form and substance,
with endorsements and in amount, reasonably acceptable to the
U.S. Administrative Agent (not to exceed the value of the Real
Properties covered thereby and in the case of Section 6.12(c),
the value of the real property encumbered by a Mortgage shall
not exceed, in each case, an amount determined in the
reasonable judgment of the U.S. Administrative Agent), issued,
coinsured and reinsured by title insurers reasonably
acceptable to the U.S. Administrative Agent, insuring the
Mortgages to be valid subsisting Liens on the property
described therein, free and clear of all defects and
encumbrances, subject to Liens permitted by clauses (a), (c),
(d), (g), (h), (i), (j) and (v) of Section 7.01, and providing
for such other affirmative insurance (including endorsements
for future advances under the Loan Documents) and such
coinsurance and direct access reinsurance as the U.S.
Administrative Agent may deem reasonably necessary or
desirable;
(C) American Land Title Association/American Congress
on Surveying and Mapping form surveys for the real property
located at 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx, sufficient
for the title company to
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remove the standard survey exception from the Mortgage Policy
for such property and issue survey related endorsements to
that Mortgage Policy;
(D) opinions of local counsel for the U.S. Loan
Parties in states in which the Real Properties are located,
with respect to the enforceability and perfection of the
Mortgages and any related fixture filings substantially in the
form of Exhibit J-3 hereto, and otherwise in form and
substance reasonably satisfactory to the U.S. Administrative
Agent; and
(E) such other evidence that all other actions that
the U.S. Administrative Agent may deem necessary or desirable
in order to create valid and subsisting Liens on the property
described in the Mortgages has been taken;
(xii) a certificate attesting to the Solvency of the Loan
Parties (taken as a whole) after giving effect to the Transaction,
from the Chief Financial Officer of the U.S. Borrower;
(xiii) the financial statements described in Sections 5.05(a),
(b) and (d);
(xiv) a certified copy of the Sponsor Management Agreement;
(xv) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect;
(xvi) certified copies of the Acquisition Agreement, duly
executed by the parties thereto, together with all agreements,
instruments and other documents delivered in connection therewith as
the U.S. Administrative Agent shall reasonably request;
(xvii) (A) copies of certificates of merger or other
confirmation reasonably satisfactory to the Lenders to be filed with
the Secretary of State of the State of Delaware for each Merger, (B)
confirmation from the Target Company and the Company, or their
respective counsel that such certificates are to be so filed
immediately after such confirmation and (C) on the Closing Date, but
after the consummation of the Transaction, certified copies of such
certificates of the consummation of the First Merger and the Second
Merger from the Secretary of State of the State of Delaware;
(xviii) an assumption agreement in substantially the form of
Exhibit K hereto (the "ASSUMPTION AGREEMENT"), duly executed by the
Surviving Corporation in connection with the Mergers;
(xix) a Committed Loan Notice or Letter of Credit Application,
as applicable, relating to the initial Credit Extension; and
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(xx) such other assurances, certificates, documents, consents
or opinions as the U.S. Administrative Agent reasonably may require.
(b) All fees and expenses required to be paid on or before the
Closing Date shall have been paid in full in cash.
(c) There shall exist no action, suit, investigation, litigation
or proceeding affecting any Loan Party or any of its Subsidiaries pending
or, to the knowledge of any Loan Party or any of its Subsidiaries,
threatened before any Governmental Authority or arbitrator that would be
reasonably likely to have a Material Adverse Effect.
(d) All governmental authorizations and all material third party
consents and approvals necessary in connection with the Transaction shall
have been obtained (without the imposition of any conditions that are not
reasonably acceptable to the U.S. Administrative Agent) and shall remain
in effect; all applicable waiting periods in connection with the
Transaction shall have expired without any action being taken by any
Governmental Authority (including, without limitation, the expiration of
the requisite waiting period under the Xxxx Xxxxx-Xxxxxx Antitrust
Improvements Act of 1975), and no Law shall be applicable in the
reasonable judgment of the U.S. Administrative Agent, in each case that
restrains, prevents or imposes materially adverse conditions upon the
Transaction.
(e) No changes, occurrences or developments shall have occurred,
and no information shall have been received or discovered by the
Administrative Agent that, either individually or in the aggregate, could
reasonably be expected to (1) have (or have had) a material adverse effect
on the condition (financial or otherwise), business, operations, assets or
liabilities of the Consolidated Parties, taken as a whole, (2) adversely
affect (or has adversely affected) the ability of the Borrowers or any
Guarantor to perform its obligations under any of the Loan Documents or
(3) adversely affect (or has adversely affected) the rights and remedies
of the Lenders under the applicable Loan Documents.
(f) The Arrangers and the U.S. Administrative Agent shall have
reviewed, and be reasonably satisfied with, the final terms and conditions
of the Acquisition Documents. Each of the Acquisition Documents shall be
in full force and effect. The U.S. Administrative Agent shall be
reasonably satisfied with (A) any amendments, modification and supplements
to the Acquisition Documents, and (B) all agreements, instruments and
documents relating to each other aspect of the Transaction.
(g) Substantially simultaneously with the initial Credit
Extension, the Equity Contributions and the Acquisition shall be
consummated in accordance with the terms of the Acquisition Agreement,
without any waiver or amendment not reasonably satisfactory to the U.S.
Administrative Agent, and in compliance with all applicable requirements
of Law and, after giving effect to the Transaction, at least 23% of the
consolidated capitalization of Holdings shall be in the form of common
Equity Interests.
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(h) The Administrative Agents shall be satisfied with arrangements
for the First Merger and the Second Merger to be consummated immediately
following the Acquisition.
(i) The U.S. Borrower shall have received at least $625,000,000 in
gross cash proceeds from the sale of the Senior Subordinated Notes.
(j) The U.S. Administrative Agent shall be satisfied with the
arrangements for all of the Existing Notes tendered and not validly
withdrawn pursuant to the Existing Notes Tender Offer to be accepted for
purchase in accordance with the Existing Notes Tender Documents on the
Closing Date. Pursuant to the Existing Notes Tender Offer, the Target
Company and Nortek, Inc. shall have received consents which shall not have
been validly withdrawn and for which all rights of withdrawal have
expired, from holders of a majority of each series of the Existing Notes
to enter into the supplemental indentures to each of the Existing Notes
Indentures contemplated by clause (c) of the definition of "Existing Notes
Tender Documents" and such supplemental indentures shall have been entered
into by the Target Company and Nortek, Inc., as applicable, and the
applicable trustee. The aggregate amount of the Commitments, the Senior
Subordinated Notes and the Existing Notes (based on principal amount at
maturity, to the extent applicable) which have not been purchased or
called for redemption on the Closing Date shall not exceed $1,441,000,000.
4.02 Conditions to All Credit Extensions. The obligation of each Lender
to honor any Request for Credit Extension (other than a Committed Loan Notice
requesting only a conversion of Loans to the other Type, or a continuation of
Eurodollar Rate Loans or the continuation or conversion of a Canadian BA) is
subject to the following conditions precedent:
(a) The representations and warranties of each Borrower and each
other Loan Party contained in Article V or any other Loan Document shall
be true and correct in all material respects on and as of the date of such
Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall
be true and correct in all material respects as of such earlier date, and
except that for purposes of this Section 4.02, the representations and
warranties contained in Sections 5.05(a) and (b) shall be deemed to refer
to the most recent statements furnished pursuant to Sections 6.01(a) and
(b), respectively.
(b) No Default shall exist, or would result from such proposed
Credit Extension or from the application of the proceeds therefrom.
(c) The applicable Administrative Agent and, if applicable, the
applicable L/C Issuer or the Swing Line Lender shall have received a
Request for Credit Extension in accordance with the requirements hereof.
Each Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Loans to the other Type or a continuation
of Eurodollar Rate Loans or the continuation or conversion of a Canadian BA)
submitted by any Borrower shall be
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deemed to be a representation and warranty that the conditions specified in
Sections 4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of Holdings and each Borrower represents and warrants to the
Agents and the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws. Each
Loan Party and each of its Subsidiaries (a) is a Person duly organized or
formed, validly existing and in good standing under the Laws of the jurisdiction
of its incorporation or organization, (b) has all requisite power and authority
to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents and the Acquisition
Documents to which it is a party, and (c) is duly qualified and in good standing
under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification, except in
each case referred to in clause (c) to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.
5.02 Authorization; No Contravention. The execution, delivery and
performance by each Loan Party of each Loan Document and the Acquisition
Documents to which such Person is a party, and the consummation of the
Transaction, are within such Loan Party's corporate or other powers, have been
duly authorized by all necessary corporate or other organizational 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 (other than as permitted by
Section 7.01), or require any payment (except for Indebtedness to be repaid on
the Closing Date in connection with the Transaction) to be made under (i) any
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries subject to delivery
of a copy of the Mortgages encumbering the Real Property set forth on Schedule
6.16(b) to the landlord under the applicable lease to the extent required
pursuant to the terms of any Mortgaged Lease (as defined in the applicable
Mortgage) or to the extent required by Landlord (as defined in the applicable
Mortgage) in connection with its consent to granting a mortgage encumbering the
applicable Loan Party's leasehold interest in such Mortgage Lease or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any Law;
except with respect to any breach or contravention or payment (but not creation
of Liens) referred to in clause (b)(i), to the extent that such conflict,
breach, contravention or payment could not reasonably be expected to have a
Material Adverse Effect.
5.03 Governmental Authorization; Other Consents. No material
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with (a) the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document, or for the consummation of the Transaction, (b) the grant by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents, (c) the
perfection or maintenance of the Liens created under the Collateral Documents
(including the
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priority thereof) or (d) the exercise by any Administrative Agent or any Lender
of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for (i) filings
necessary to perfect the Liens on the Collateral granted by the Loan Parties in
favor of the Administrative Agent (which filings are disclosed in the Perfection
Certificate) or (ii) the approvals, consents, exemptions, authorizations,
actions, notices and filings which have been duly obtained, taken, given or made
and are in full force and effect and solely for purposes of the foregoing clause
(a), in the case of the Transaction, those approvals, consents, exemptions,
authorizations or other actions, notices or filings, the failure of which to
obtain or make could not reasonably be expected to have a Material Adverse
Effect. All applicable waiting periods in connection with the Transaction have
expired without any action having been taken by any Governmental Authority
restraining, preventing or imposing materially adverse conditions upon the
Transaction. Following the initial Credit Extensions, the Acquisition and the
Mergers have been consummated in accordance with the Acquisition Agreement and,
in all material respects, applicable Law.
5.04 Binding Effect. This Agreement and each other Loan Document
has been duly executed and delivered by each Loan Party that is party thereto.
This Agreement and each other Loan Document constitutes, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except as such enforceability may
be limited by bankruptcy insolvency, reorganization, receivership, moratorium or
other laws affecting creditors' rights generally and by general principles of
equity.
5.05 Financial Statements; No Material Adverse Effect. (a) The
Audited Financial Statements fairly present in all material respects the
financial condition of the Target Company and its consolidated Subsidiaries as
of the date thereof and their results of operations for the period covered
thereby in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein. During the period
from December 31, 2003 to and including the Closing Date, there has been (i) no
sale, transfer or other disposition by the Target Company or any of its
consolidated Subsidiaries of any material part of the business or property of
the Target Company or any of its consolidated Subsidiaries, taken as a whole and
(ii) no purchase or other acquisition by any of them of any business or property
(including any Equity Interests of any other Person) material in relation to the
consolidated financial condition of the Target Company and its consolidated
Subsidiaries, taken as a whole, in each case, which is not reflected in the
foregoing financial statements or in the notes thereto or has not otherwise been
disclosed in writing to the Lenders prior to the Closing Date.
(b) The unaudited consolidated financial statements of the Target
Company and its consolidated Subsidiaries for the fiscal quarters ended April 3,
2004 and July 3, 2004, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarters (i)
were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein, and meet the
requirements of Regulation S-X under the Securities Act of 1933, as amended, and
(ii) fairly present in all material respects the financial condition of the
Target Company and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject to the absence of footnotes
and to normal year-end audit adjustments. From such date to the Closing Date,
except as set forth on Schedule 5.05, Holdings, the Target Company and their
respective
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Subsidiaries have not incurred any material Indebtedness or other liabilities,
direct or contingent, that, in accordance with GAAP, would be required to be
disclosed in such financial statements, other than in connection with the
Transactions and which are reflected in the pro forma financial statements
delivered pursuant to clause (d) below.
(c) Since the date of the Audited Financial Statements, there has
been no event or circumstance, either individually or in the aggregate, that has
had or could reasonably be expected to result in a material adverse change in
the condition (financial or otherwise), business, operations, assets or
liabilities of the Company (and after giving effect to the Mergers, the U.S.
Borrower) and its Subsidiaries taken as a whole.
(d) The condensed consolidated pro forma balance sheet of Holdings
and its Subsidiaries as of July 3, 2004 and the related consolidated pro forma
statements of operations of Holdings and its Subsidiaries for the twelve month
period then ended, certified by the Chief Financial Officer of the U.S.
Borrower, copies of which have been furnished to each Lender, (A) fairly present
in all material respects the consolidated pro forma financial condition of
Holdings and its Subsidiaries as at such dates and the consolidated pro forma
results of operations of Holdings and its Subsidiaries for the period ended on
such date, in each case, giving pro forma effect to the Transaction, (B) other
than with respect to the pro forma statement of operations and cash flows for
the twelve months ended July 3, 2004, meet the requirements of Regulation S-X
under the Securities Act of 1933 and (C) have been properly computed on the
bases described therein.
(e) The consolidated forecasted balance sheets, statements of
income and statements of cash flows of Holdings and its Subsidiaries for, and as
of the end of, (i) each fiscal quarter commencing after July 3, 2004 and ending
on or prior to December 31, 2006 and (ii) each fiscal year commencing after
December 31, 2003 and ending on or prior to December 31, 2011 were prepared in
good faith on the basis of the assumptions stated therein, which assumptions
were reasonable in light of the conditions existing at the time of delivery of
such forecasts; it being understood that actual results may vary from such
forecasts and that such variations may be material.
5.06 Litigation. Except as set forth on Schedule 5.06, there are no
actions, suits, proceedings, claims or disputes pending or, to the knowledge of
Holdings or any Borrower, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against Holdings, the
U.S. Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement, any other Loan
Document or, as of the Closing Date, the consummation of the Transaction, or (b)
either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.07 No Default. None of Holdings, the U.S. Borrower or any
Subsidiary is in default under or with respect to, or a party to, any
Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
5.08 Ownership of Property; Liens. (a) Each Loan Party and each of
its Subsidiaries has good record and indefeasible title in fee simple to, or
valid leasehold interests in, all real property necessary in the ordinary
conduct of its business, free and clear of all Liens
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except for minor defects in title that do not materially interfere with its
ability to conduct its business or to utilize such assets for their intended
purposes and Liens permitted by clauses (a), (c), (d), (g), (h), (i), (j) and
(v) of Section 7.01.
(b) Set forth on Schedule 5.08(b) hereto is a complete and
accurate list of all real property owned by any U.S. Loan Party or any of its
Subsidiaries located in the United States, as of the Closing Date, showing as of
the date hereof the street address (to the extent available), county or other
relevant jurisdiction, state and record owner.
(c) Set forth on Schedule 5.08(c) hereto is a complete and
accurate list of all leases of real property material to the conduct of the
business of the Loan Parties under which any Loan Party or any of its
Subsidiaries is the lessee as of the Closing Date, showing as of the date hereof
the street address (to the extent available), county or other relevant
jurisdiction, state, lessor and lessee.
5.09 Environmental Compliance. (a) Each Loan Party and each of its
Subsidiaries, and each Subsidiary of their operations and properties is in
compliance with all applicable Environmental Laws except to the extent any
non-compliance could not reasonably be expected to result in a Material Adverse
Effect.
(b) Except as specifically disclosed on Schedule 5.09, there are
no actions, claims, notices of violation or potential responsibility, or
proceedings alleging liability under or non-compliance with any Environmental
Law on the part of any Loan Party or any of its Subsidiaries that could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(c) Except as specifically disclosed in Schedule 5.09 or except as
could not reasonably be expected to have a Material Adverse Effect, (i) none of
the properties currently or, to the knowledge of any Loan Party formerly, owned
or operated by any Loan Party or any of its Subsidiaries is listed or proposed
for listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list; (ii) there are no and never have been any underground or aboveground
storage tanks or any surface impoundments, septic tanks, pits, sumps or lagoons
in which Hazardous Materials are being or have been treated, stored or disposed
on any property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to its knowledge, on any property formerly owned or operated by
any Loan Party or any of its Subsidiaries; (iii) there is no asbestos or
asbestos-containing material on any property currently owned or operated by any
Loan Party or any of its Subsidiaries; and (iv) Hazardous Materials have not
been Released on, under or from any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries except for such releases,
discharges or disposal that were in material compliance with Environmental Laws.
(d) The Properties do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute a violation of, (ii) require any
action or inaction under, or (iii) could give rise to liability under,
Environmental Laws, which violations, actions and liabilities, in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
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(e) Except as disclosed in Schedule 5.09, neither the U.S.
Borrower nor any of its Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any
investigation or assessment or response or other corrective action relating to
any actual or threatened Release, Hazardous Materials at, on, under or from any
location, either voluntarily or pursuant to the order of any Governmental
Authority or the requirements of any Environmental Law except for any such
action that, in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.
(f) Except as disclosed on Schedule 5.09, all Hazardous Materials
generated, used, treated, handled or stored at, or transported to or from, any
property currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner which would not reasonably
expected to result in a Material Adverse Effect.
5.10 Insurance. The properties of U.S. Borrower and its Restricted
Subsidiaries are insured with financially sound and reputable insurance
companies, in such amounts (after giving effect to any self-insurance reasonable
and customary for similarly situated Persons engaged in the same or similar
businesses as U.S. Borrower and its Restricted Subsidiaries) with such
deductibles and covering such risks as are customarily carried by prudent
companies engaged in similar businesses and owning similar properties in
localities where U.S. Borrower or the applicable Restricted Subsidiary operates.
5.11 Taxes. The U.S. Borrower and its Subsidiaries have filed all
Federal and material state, foreign and other tax returns and reports required
to be filed, and have paid all Federal and material state and other taxes,
assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those (a)
which are not overdue by more than thirty (30) days or (b) which are being
contested in good faith by appropriate proceedings diligently conducted and for
which adequate reserves have been provided in accordance with GAAP or (c) with
respect to which the failure to make such filing or payment could not reasonably
be expected to have a Material Adverse Effect.
5.12 ERISA Compliance. (a) Each Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
applicable Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from
the IRS, or has been established pursuant to a prototype plan that has received
a favorable opinion letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the knowledge
of any Borrower or Holdings, nothing has occurred which would prevent, or cause
the loss of, such qualification. Each Loan Party and each ERISA Affiliate have
made all required contributions to each 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 knowledge of any Borrower or
Holdings, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could be reasonably be expected to have
a Material Adverse Effect. There has
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been no prohibited transaction or violation of the fiduciary responsibility
rules with respect to any Plan that has resulted or could reasonably be expected
to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred within the prior 2 years or is
reasonably expected to occur; (ii) no Pension Plan has an "accumulated funding
deficiency" (as defined in Section 412 of the Code), whether or not waived, and
no application for a waiver of the minimum funding standard has been filed with
respect to any Pension Plan; (iii) neither any Loan Party 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); (iv) neither any Loan Party 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 Sections 4201 or 4243 of ERISA with
respect to a Multiemployer Plan; (v) neither any Loan Party nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA; and (vi) the present value of all accumulated benefit
obligations of all underfunded Pension Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
by more than $80,000,000 the fair market value of the assets of all such
underfunded Pension Plans; except, with respect to each of the foregoing clauses
of this Section 5.12(c), as could not reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect.
(d) Except where noncompliance would not reasonably be expected to
result in a Material Adverse Effect, each Foreign Plan has been maintained in
substantial compliance with its terms and with the requirements of any and all
applicable laws, statutes, rules, regulations and orders and has been
maintained, where required, in good standing with applicable Governmental
Authorities, and neither the U.S. Borrower nor any Subsidiary have incurred any
material obligation in connection with the termination of or withdrawal from any
Foreign Plan.
5.13 Subsidiaries; Equity Interests. As of the Closing Date, each
Loan Party has no Subsidiaries other than those specifically disclosed in
Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries
have been validly issued, are fully paid and non-assessable and are owned by a
Loan Party free and clear of all Liens except (i) those created under the
Collateral Documents and (ii) any nonconsensual Lien that is permitted under
Section 7.01.
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act. (a) The Borrowers are not engaged and will not engage,
principally or as one of their important activities, in the business of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock and no Credit Extension will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
(b) None of the U.S. Borrower, any Person Controlling the U.S.
Borrower or any Subsidiary (i) is a "holding company," or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company,"
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within the meaning of the Public Utility Holding Company Act of 1935, or (ii) is
or is required to be registered as an "investment company" under the Investment
Company Act of 1940. Neither the making of any Credit Extension, nor the
application of the proceeds or repayment thereof by any Borrower, nor the
consummation of the other transactions contemplated by the Loan Documents, will
violate any provision of any such Act or any rule, regulation or order of the
SEC thereunder.
5.15 Disclosure. No report, financial statement, certificate or
other information (including, without limitation, the Information Memorandum)
furnished (whether in writing or orally) by or on behalf of any Loan Party to
any Agent or any Lender in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder or any other Loan
Document (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not materially misleading; provided that, with
respect to projected financial information, the U.S. Borrower represents only
that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time of preparation; it being understood that such
projections may vary from actual results and that such variances may be
material.
5.16 Compliance with Laws. Each Loan Party and its Subsidiaries is
in compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.17 Intellectual Property; Licenses, Etc. Each Loan Party and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses and
other intellectual property rights (collectively, "IP RIGHTS") that are
reasonably necessary for the operation of their respective businesses, without
conflict with the rights of any other Person, except to the extent such
conflicts or failures to own or possess such rights, either individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Borrowers, no slogan or other advertising
device, product, process, method, substance, part or other material now
employed, or now contemplated to be employed, by any Loan Party or any
Subsidiary infringes upon any rights held by any other Person except for such
infringements, individually or in the aggregate, which could not reasonably be
expected to have a Material Adverse Effect. No claim or litigation regarding any
of the foregoing is pending or, to the knowledge of the Borrowers, threatened,
which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
5.18 Solvency. Each of the Borrowers, on a consolidated basis with
its Subsidiaries, is Solvent.
5.19 Casualty, Etc. Neither the business nor the properties of any
Loan Party or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other
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labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the
public enemy or other casualty (whether or not covered by insurance) that could
reasonably be expected to have a Material Adverse Effect.
5.20 Perfection, Etc. All filings and other actions necessary or
desirable to perfect and protect the Liens in the Collateral created under the
Collateral Documents and to render such Liens opposable to third parties have
been or will be, during the periods required by the Loan Documents, duly made or
taken and are in full force and effect, and the Collateral Documents create in
favor of (i) the U.S. Administrative Agent for the benefit of the Secured
Parties and (ii) the Canadian Administrative Agent for the benefit of the
Canadian Secured Parties, a valid and, together with such filings and other
actions, perfected first priority Lien in the U.S. Collateral and the Canadian
Collateral, respectively, securing the payment of the Secured Obligations (in
the case of the U.S. Collateral) and the Canadian Obligations (in the case of
the Canadian Collateral), subject to Liens permitted by Section 7.01. The Loan
Parties are the legal and beneficial owners of the Collateral free and clear of
any Lien, except for the Liens created or permitted under the Loan Documents.
5.21 Tax Shelter Regulations. The U.S. Borrower does not intend to
treat the Loans and/or Letters of Credit and related transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event the U.S. Borrower determines to take any action
inconsistent with such intention, it will promptly notify the U.S.
Administrative Agent thereof. If the U.S. Borrower so notifies the U.S.
Administrative Agent, the U.S. Borrower acknowledges that one or more of the
Lenders may treat its Loans and/or its interest in Swing Line Loans and/or
Letters of Credit as part of a transaction that is subject to Treasury
Regulation Section 301.6112-1, and such Lender or Lenders, as applicable, may
maintain the lists and other records required by such Treasury Regulation.
5.22 Anti-Terrorism Law. (a) No Loan Party and, to the knowledge of
Holdings and the Borrowers, none of their Affiliates is in violation of any laws
relating to terrorism or money laundering ("ANTI-TERRORISM LAWS"), including
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001
(the "EXECUTIVE ORDER"), the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56 or the Proceeds of Crime (Money-Laundering) and Terrorist
Financing Act (Canada).
(b) No Loan Party and to the knowledge of the Loan Parties, no
Affiliate or broker or other agent of any Loan Party acting or benefiting in any
capacity in connection with the Loans is any of the following:
(i) a person that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order;
(ii) a person owned or controlled by, or acting for or on behalf
of, any person that is listed in the annex to, or is otherwise subject to
the provisions of, the Executive Order;
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(iii) a person with which any Lender is prohibited from dealing or
otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a person that commits, threatens or conspires to commit or
supports "terrorism" as defined in the Executive Order; or
(v) a person that is named as a "specially designated national and
blocked person" on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control ("OFAC") at its official
website or any replacement website or other replacement official
publication of such list.
(c) No Loan Party and, to the knowledge of Holdings and the
Borrowers, no broker or other agent of any Loan Party acting in any capacity in
connection with the Loans (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit of
any person described in paragraph (b) above, (ii) deals in, or otherwise engages
in any transaction relating to, any property or interests in property blocked
pursuant to the Executive Order, or (iii) engages in or conspires to engage in
any transaction that evades or avoids, or has the purpose of evading or
avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan
or other Obligation hereunder which is accrued or payable remains unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, each of Holdings
and the Borrowers shall, and shall (except in the case of the covenants set
forth in Sections 6.01, 6.02 and 6.03) cause each Restricted Subsidiary to:
6.01 Financial Statements. Deliver to the Administrative Agents for
further distribution to each Lender:
(a) as soon as available, but in any event within ninety (90) days
after the end of each fiscal year of the U.S. Borrower (or, if earlier,
the date on which the U.S. Borrower's Form 10-K would be required to be
filed with the SEC whether or not it is then subject to Section 13(d) or
15 of the Exchange Act), a consolidated balance sheet of the U.S. Borrower
and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and
cash flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail
and prepared in accordance with GAAP, audited and accompanied by a report
and opinion of Ernst & Young, LLP or any other independent certified
public accountant of nationally recognized standing, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the
scope of such audit, together with the related unaudited consolidating
balance sheet and statement of income or operations reflecting
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the adjustments necessary to eliminate the accounts of Unrestricted
Subsidiaries (if any) from such consolidated financial statements;
(b) as soon as available, but in any event within forty-five (45)
days after the end of each of the first three (3) fiscal quarters of each
fiscal year of the U.S. Borrower (or, if earlier, the date on which the
U.S. Borrower's 10-Q would be required to be filed with the SEC whether or
not it is then subject to Section 13(d) or 15 of the Exchange Act), a
consolidated balance sheet of the U.S. Borrower and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal
quarter and for the portion of the fiscal year then ended, setting forth
in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a
Responsible Officer of the U.S. Borrower as fairly presenting in all
material respects the financial condition, results of operations,
shareholders' equity and cash flows of the U.S. Borrower and its
Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes, together with the related
unaudited consolidating balance sheet and statement of income or
operations reflecting the adjustments necessary to eliminate the accounts
of Unrestricted Subsidiaries (if any) from such consolidated financial
statements;
(c) at the time of delivery of the financial statements provided
for in Sections 6.01(a) and (b) above, a management's discussion and
analysis of the financial condition and results of operation for such
fiscal quarter or fiscal year, as the case may be, as compared to the
previous fiscal period; provided that a copy of the U.S. Borrower's Form
10-K or Form 10-Q for the applicable period shall be deemed to satisfy
such requirement; and
(d) as soon as available, but in any event no later than
seventy-five (75) days after the end of each fiscal year, forecasts
prepared by management of the U.S. Borrower, in form reasonably
satisfactory to the U.S. Administrative Agent, of consolidated balance
sheets, income statements and cash flow statements of the U.S. Borrower
and its Subsidiaries. The initial forecasts delivered hereunder shall be
prepared on a quarterly basis for the 2005 fiscal year and each subsequent
forecast delivered hereunder shall be prepared on an annual basis for the
fiscal year following such fiscal year then ended.
6.02 Certificates; Other Information. Deliver to the Administrative
Agents for further distribution to each Lender, in form and detail reasonably
satisfactory to the Administrative Agents and the Required Lenders:
(a) no later than five (5) days after the delivery of the
financial statements referred to in Section 6.01(a), a certificate of its
independent certified public accountants certifying such financial
statements and stating that in making the examination necessary therefor
no knowledge was obtained of any Event of Default under Section 7.11 or,
if any such Event of Default shall exist, stating the nature and status of
such event;
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(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), (i) a duly completed Compliance
Certificate signed by a Responsible Officer of U.S. Borrower and, if such
Compliance Certificate demonstrates an Event of Default of any covenant
under Section 7.11, the Equity Investors may deliver, together with such
Compliance Certificate, notice of their intent to cure (a "NOTICE OF
INTENT TO CURE") such Event of Default through capital contributions or
the purchase of Equity Interests as contemplated pursuant to clause
(b)(xviii) and the final proviso of the definition of "Consolidated
EBITDA"; provided that the delivery of a Notice of Intent to Cure shall in
no way affect or alter the occurrence, existence or continuation of any
such Event of Default or the rights, benefits, powers and remedies of the
Administrative Agents and the Lenders under any Loan Document and (ii) a
description of each event, condition or circumstance during the last
fiscal quarter covered by such Compliance Certificate requiring a
mandatory prepayment under Section 2.05(b);
(c) promptly after the same are available, (i) copies of each
annual report, proxy or financial statement or other report or
communication sent to the stockholders of the U.S. Borrower or Holdings,
(ii) copies of all annual, regular, periodic and special reports and
registration statements which the U.S. Borrower or Holdings may file or be
required to file, copies of any report, filing or communication with the
SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, or
with any Governmental Authority that may be substituted therefor, or with
any national securities exchange, and (iii) a copy of any "management
letter" received by any Loan Party from its certified public accountants
identifying any significant deficiencies in the design or operation of
internal controls which could materially adversely affect the U.S.
Borrower's or Holdings' ability to record, process, summarize and report
financial data, and the management's responses thereto (provided that such
disclosure by the U.S. Borrower is authorized by such accountants (and the
U.S. Borrower agrees to request that such certified public accountants
permit such disclosure));
(d) promptly after the furnishing thereof, copies of any requests
or notices received by any Loan Party (other than in the ordinary course
of business) from, or statements or reports furnished to, any holder of
debt securities of any Loan Party or of any of its Subsidiaries pursuant
to the terms of any Junior Financing Documentation in a principal amount
greater than the Threshold Amount and not otherwise required to be
furnished to the Lenders pursuant to any other clause of this Section
6.02;
(e) promptly after the receipt thereof by any Loan Party or any of
its Subsidiaries, copies of each notice or other correspondence received
from the SEC (or comparable agency in any applicable non-U.S.
jurisdiction) concerning any material investigation or other material
inquiry by such agency regarding financial or other operational results of
any Loan Party or any of its Subsidiaries;
(f) promptly after the assertion or occurrence thereof, notice of
any occurrence, event or action that could result in Environmental
Liability on the part of any Loan Party or any of its Subsidiaries or of
any noncompliance by any Loan Party or any
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of its Subsidiaries with any Environmental Law or Environmental Permit, in
each case that could reasonably be expected to have a Material Adverse
Effect;
(g) concurrently with any delivery of financial statements under
Section 6.01(a), a certificate of a Responsible Officer setting forth the
information required pursuant to the Perfection Certificate Supplement or
confirming that there has been no change in such information since the
date of the Perfection Certificate or latest Perfection Certificate
Supplement;
(h) promptly after the furnishing thereof, copies of all financial
statements, forecasts, budgets or other similar information of Holdings
furnished to the lenders or holders of any Permitted Holdco Debt;
(i) promptly after U.S. Borrower has notified the U.S.
Administrative Agent of any intention by U.S. Borrower to treat the Loans
and/or Letters of Credit and related transactions as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4),
a duly completed copy of IRS Form 8886 or any successor form;
(j) upon request by the U.S. Administrative Agent, copies of: (i)
each Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by any Loan Party or ERISA Affiliate with the Internal
Revenue Service with respect to each Pension Plan; (ii) the most recent
actuarial valuation report for each Pension Plan; (iii) all notices
received by any Loan Party or ERISA Affiliate from a Multiemployer Plan
sponsor or any governmental agency concerning an ERISA Event; and (iv)
such other documents or governmental reports or filings relating to any
Plan as the U.S. Administrative Agent shall reasonably request; and
(k) promptly, such additional information regarding the business,
legal, financial or corporate affairs of any Loan Party or any Subsidiary,
or compliance with the terms of the Loan Documents, as any Administrative
Agent or any Lender may from time to time reasonably request.
Documents required to be delivered pursuant to Section 6.01(a), (b),
(c) or (d) or Section 6.02(d) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and if
so delivered, shall be deemed to have been delivered on the date (i) on which
the U.S. Borrower posts such documents, or provides a link thereto on the U.S.
Borrower's website on the Internet at the website address listed on Schedule
10.02; or (ii) on which such documents are posted on the U.S. Borrower's behalf
on IntraLinks/ IntraAgency or another relevant website, if any, to which each
Lender and each Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by an Administrative Agent); provided
that (i) the U.S. Borrower shall deliver paper copies of such documents to the
Administrative Agents for further distribution to each Lender until a written
request to cease delivering paper copies is given by the each Administrative
Agent or such Lender and (ii) the U.S. Borrower shall notify (which may be by
facsimile or electronic mail) each Administrative Agent of the posting of any
such documents and provide to each Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents.
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Notwithstanding anything contained herein, in every instance U.S. Borrower shall
be required to provide paper copies of the Compliance Certificates required by
Section 6.02(b) to the Administrative Agents. Except for such Compliance
Certificates, the Administrative Agents shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by any Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.
6.03 Notices. Promptly after obtaining knowledge thereof notify the
Administrative Agents for further distribution to each Lender:
(a) of the occurrence of any Default; and
(b) of any matter that has resulted or could reasonably be
expected to result in a Material Adverse Effect, including arising out of
or resulting from (i) breach or non-performance of, or any default under,
a Contractual Obligation of any Loan Party or any Subsidiary, (ii) any
dispute, litigation, investigation, proceeding or suspension between any
Loan Party or any Subsidiary and any Governmental Authority, (iii) the
commencement of, or any material development in, any litigation or
proceeding affecting any Loan Party or any Subsidiary, including pursuant
to any applicable Environmental Laws and or in respect of IP Rights, or
(iv) the occurrence of any ERISA Event.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the U.S. Borrower setting forth details of
the occurrence referred to therein and stating what action the U.S. Borrower has
taken and proposes to take with respect thereto. Each notice pursuant to Section
6.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.04 Payment of Obligations. Pay, discharge or otherwise satisfy as
the same shall become due and payable, all its obligations and liabilities,
including (a) all 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 diligently conducted and adequate
reserves in accordance with GAAP are being maintained by the U.S. Borrower or
such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a
Lien upon its property, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the U.S. Borrower or such Subsidiary; and (c)
all Indebtedness, as and when due and payable, but subject to any subordination
provisions contained in any instrument or agreement evidencing such Indebtedness
except, in each case, to the extent the failure to pay or discharge the same
could not reasonably be expected to have a Material Adverse Effect.
6.05 Preservation of Existence, Etc. (a) Preserve, renew and
maintain in full force and effect its legal existence under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section
7.04 or 7.05; provided, however, that the U.S. Borrower and its Subsidiaries may
consummate the Acquisition and the Mergers, (b) take all reasonable action to
maintain all rights, privileges (including its good standing), permits, licenses
and franchises necessary or desirable in the normal conduct of its business,
except to the extent that failure to do
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so could not reasonably be expected to have a Material Adverse Effect, and (c)
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.
6.06 Maintenance of Properties. (a) Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good working order, repair and condition, ordinary wear and tear
excepted and casualty or condemnation excepted, and (b) make all necessary
renewals, replacements, modifications, improvements, upgrades, extensions and
additions thereof or thereto in accordance with prudent industry practice.
6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies, 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 (after giving effect to any self-insurance reasonable and customary for
similarly situated Persons engaged in the same or similar businesses as the U.S.
Borrower and its Restricted Subsidiaries) as are customarily carried under
similar circumstances by such other Persons.
6.08 Compliance with Laws. Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except if the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records. Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the U.S. Borrower or such Restricted
Subsidiary, as the case may be.
6.10 Inspection Rights. Permit representatives and independent
contractors of the Administrative Agents and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its
affairs, finances and accounts with its directors, officers, and independent
public accountants, all at the expense of the Borrowers and at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the U.S. Borrower; provided that, excluding
any such visits and inspections during the continuation of an Event of Default,
the Lenders shall not exercise such rights more often than two times during any
calendar year absent the existence of an Event of Default and only one (1) such
time shall be at the Borrowers' expense; provided, further that when an Event of
Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrowers at any time during normal business
hours and upon reasonable notice. The Administrative Agent and the Lenders shall
give the Borrowers the opportunity to participate in any discussions with the
Borrowers' accountants.
6.11 Use of Proceeds. Use the proceeds of the Credit Extension on
the Closing Date only to pay a portion of the consideration payable in
connection with the Transaction and
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use the proceeds of other Credit Extensions for general corporate purposes not
in contravention of any Law or of any Loan Document.
6.12 Covenant To Guarantee Obligations and Give Security. (a) Upon
the formation or acquisition of any new direct or indirect Restricted
Subsidiaries by any U.S. Loan Party or upon any Domestic Subsidiary ceasing to
meet the definition of Non-Guarantor Domestic Subsidiary or upon the
redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary or the
acquisition of any Material Real Estate, the U.S. Borrower shall promptly notify
the Administrative Agents thereof and if such property, in the reasonable
judgment of the U.S. Administrative Agent, shall not already be subject to a
perfected Lien in favor of the U.S. Administrative Agent for the benefit of the
Secured Parties, then the U.S. Borrower shall, in each case at the U.S.
Borrower's expense:
(i) in connection with the formation or acquisition of a
Restricted Subsidiary or upon any Domestic Subsidiary which was a
Non-Guarantor Domestic Subsidiary ceasing for any reason to meet the
definition thereof or the redesignation of any Unrestricted Subsidiary as
a Restricted Subsidiary, within thirty (30) days after such formation,
acquisition, or change of status or such longer period as the
Administrative Agent may agree in its sole discretion, (A) cause each such
Restricted Subsidiary that is not a Foreign Subsidiary to duly execute and
deliver to the U.S. Administrative Agent a guaranty or guaranty
supplement, in form and substance reasonably satisfactory to the U.S.
Administrative Agent, guaranteeing the other Loan Parties' obligations
under the Loan Documents, and (B) deliver certificates representing the
Pledged Interests of such Restricted Subsidiary accompanied by undated
stock powers or other appropriate instruments of transfer executed in
blank and instruments evidencing the Pledged Debt of such Restricted
Subsidiary indorsed in blank to the U.S. Administrative Agent, together
with, if requested by the U.S. Administrative Agent, supplements to the
U.S. Security Agreement with respect to the pledge of any Equity Interests
or Indebtedness; provided that only 65% of Equity Interests of any
Foreign Subsidiary shall be required to be pledged as Collateral,
(ii) within ten (10) days after such request, formation or
acquisition, or such longer period as the U.S. Administrative Agent may
agree in its sole discretion, furnish to the U.S. Administrative Agent a
Perfection Certificate Supplement,
(iii) within thirty (30) days after such request, formation or
acquisition or change of status, or such longer period as the U.S.
Administrative Agent may agree in its sole discretion, duly execute and
deliver, and cause each such Restricted Subsidiary that is not a Foreign
Subsidiary to duly execute and deliver, to the U.S. Administrative Agent
Mortgages encumbering Material Real Estate, Security Agreement
Supplements, IP Security Agreement Supplements and other security
agreements, as specified by and in form and substance reasonably
satisfactory to the U.S. Administrative Agent (consistent with the U.S.
Security Agreement, IP Security Agreement and Mortgages), securing payment
of all the Obligations and constituting Liens on all such properties,
(iv) within thirty (30) days after such request, formation,
acquisition or change of status, or such longer period, not to exceed an
additional sixty (60) days, as the U.S.
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Administrative Agent may agree in its sole discretion, take, and cause
such Subsidiary that is not a Foreign Subsidiary or such parent to take,
whatever action (including, without limitation, the recording of Mortgages
on Material Real Estate, the filing of Uniform Commercial Code financing
statements, the giving of notices and the endorsement of notices on title
documents and delivery of stock and membership interest certificates) may
be necessary or advisable in the reasonable opinion of the U.S.
Administrative Agent to vest in the U.S. Administrative Agent (or in any
representative of the U.S. Administrative Agent designated by it) valid
and subsisting Liens on the properties purported to be subject to the
Mortgages on Material Real Estate, Security Agreement Supplements, IP
Security Agreement Supplements and security agreements delivered pursuant
to this Section 6.12, enforceable against all third parties in accordance
with their terms,
(v) within thirty (30) days after the request of the U.S.
Administrative Agent, deliver to the U.S. Administrative Agent, a signed
copy of an opinion, addressed to the U.S. Administrative Agent and the
other Secured Parties, of counsel for the Loan Parties reasonably
acceptable to the U.S. Administrative Agent as to such matters as the U.S.
Administrative Agent may reasonably request,
(vi) as promptly as practicable after the request of the
Administrative Agent, to the applicable Administrative Agent with respect
to each parcel of real property on which Mortgages on Material Real Estate
that is the subject of such request, title reports in scope, form and
substance reasonably satisfactory to the applicable Administrative Agent
and, to the extent available, surveys and environmental assessment
reports, and
(vii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all such
other action as the applicable Administrative Agent in its reasonable
judgment may deem necessary or desirable in obtaining the full benefits
of, or in perfecting and preserving the Liens of, such guaranties,
Mortgages, Security Agreement Supplements, IP Security Agreement
Supplements and security agreements; and
(b) Upon the formation or acquisition of any new direct or
indirect Restricted Subsidiaries that are Canadian Subsidiaries by any Canadian
Loan Party, or upon the redesignation of any Unrestricted Subsidiary that is a
Canadian Subsidiary as a Restricted Subsidiary, the Canadian Borrowers shall
promptly notify the Administrative Agents thereof and the Canadian Borrowers
shall, in each case at the Canadian Borrowers' expense:
(i) in connection with the formation or acquisition of a
Restricted Subsidiary or the redesignation of any Unrestricted Subsidiary
as a Restricted Subsidiary, within thirty (30) days after such formation,
acquisition or change of status or such longer period as the Canadian
Administrative Agent may agree in its sole discretion, cause each such
Restricted Subsidiary (if it has not already done so) to duly execute and
deliver to the Canadian Administrative Agent a guaranty or guaranty
supplement, in form and substance reasonably satisfactory to the Canadian
Administrative Agent, guaranteeing the other Canadian Loan Parties'
obligations under the Loan Documents,
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(ii) within ten (10) days after such request, formation or
acquisition, or such longer period as the U.S. Administrative Agent may
agree in its sole discretion, furnish to each Administrative Agent a
Perfection Certificate Supplement,
(iii) within thirty (30) days after such request, formation or
acquisition or change of status, or such longer period as the Canadian
Administrative Agent may agree in its sole discretion, duly execute and
deliver, and cause each such Restricted Subsidiary that is a Canadian
Subsidiary to duly execute and deliver, to the Canadian Administrative
Agent new Canadian Security Agreements and/or Canadian Security Agreement
Supplements and other security agreements charging a Lien in such
Restricted Subsidiaries' personal property, as specified by and in form
and substance reasonably satisfactory to the Canadian Administrative Agent
(consistent with the Canadian Security Agreement), securing payment of all
the Canadian Obligations under the Loan Documents and constituting Liens
on all such properties,
(iv) within thirty (30) days after such request, formation,
acquisition or change of status, or such longer period, not to exceed an
additional sixty (60) days, as the Canadian Administrative Agent may agree
in its sole discretion, take, and cause such Subsidiary that is a Canadian
Subsidiary or such parent to take, whatever action (including, without
limitation, the filing of PPSA financing statements and other similar
filings in all applicable jurisdictions) may be necessary or advisable in
the reasonable opinion of the Canadian Administrative Agent to vest in the
Canadian Administrative Agent (or in any representative of the Canadian
Administrative Agent designated by it) valid and subsisting Liens on the
personal properties purported to be subject to the Canadian Security
Agreement Supplements and other security agreements delivered pursuant to
this Section 6.12, enforceable against all third parties in accordance
with their terms, and
(v) within thirty (30) days after the request of the Canadian
Administrative Agent, deliver to the Canadian Administrative Agent a
signed copy of an opinion, addressed to the Canadian Administrative Agent
and the other Canadian Secured Parties, of counsel for the Loan Parties
reasonably acceptable to the Canadian Administrative Agent as to such
matters as the Canadian Administrative Agent may reasonably request.
(c) If on December 31, 2005 the applicable U.S. Loan Party has not
sold the real property located at 000 Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx; 0000
X. 00xx Xxxxxx, Xxxxxx, Xxxxxxxxxx; 0000 X. Xxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx;
0000 Xxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx; or 0000 Xxx Xxxx Xxxx, Xxxxxxxxxx,
Xxxx, such Loan Party shall deliver or shall cause to be delivered, within sixty
(60) Business Days of such date, unless waived or extended by the U.S.
Administrative Agent in its sole discretion, a Mortgage encumbering such real
property such, other items required by Sections 4.01(a)(xi)(A) through (E),
4.01(a)(xv) and 4.01(a)(xx), as well as copies of all leases required by Section
6.16(d)(iii).
(d) Notwithstanding the foregoing, the Administrative Agents shall
not take a security interest in any assets as to which such Administrative Agent
shall determine, in its reasonable discretion, that the cost of obtaining such
Lien (including any mortgage, stamp, intangibles or other tax) are excessive in
relation to the benefit to the Secured Parties of the
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security afforded thereby and the U.S. Loan Parties shall not be required to
pledge any Equity Interests of a Foreign Subsidiary which meets the requirements
of clauses (i), (ii) and (iii) of the definition of "Non-Guarantor Restricted
Subsidiary".
6.13 Compliance with Environmental Laws. (a) Except, in each case,
to the extent that the failure to do so could not reasonably be expected to have
a Material Adverse Effect, comply, and cause all lessees and other Persons
operating or occupying its properties to comply with all applicable
Environmental Laws and Environmental Permits; obtain and renew all Environmental
Permits necessary for its operations and properties; and conduct any
investigation, study, sampling and testing, and undertake any cleanup, removal,
remedial or other action necessary to address Hazardous Materials at, on, under
or emanating from any of its properties, in accordance with the requirements of
all applicable Environmental Laws.
(b) If a Default caused by reason of a breach of Section 5.09 or
Section 6.13(a) shall have occurred and be continuing for more than 20 days
without the Borrower Parties commencing activities reasonably likely to cure
such Default, at the written request of the U.S. Administrative Agent, provide
to the Lenders within 45 days after such request, at the expense of the Loan
Party, an environmental assessment report for any property owned or operated by
any Borrower Party regarding the matters which are the subject of such Default,
including, where appropriate, any soil and/or groundwater sampling, prepared by
an environmental consulting firm and, in the form and substance, reasonably
acceptable to the applicable Administrative Agent and indicating the presence or
absence of Hazardous Materials and the estimated cost to address any
non-compliance with or conduct any response or other corrective action with
respect to such Hazardous Material required under any Environmental Law.
6.14 Further Assurances. Promptly upon request by either
Administrative Agent, or any Lender through either Administrative Agent, (i)
correct any material defect or error that may be discovered in the execution,
acknowledgment, filing or recordation of any Loan Document or other document or
instrument relating to any Collateral, and (ii) do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, certificates, assurances and other instruments as
either Administrative Agent, or any Lender through either Administrative Agent,
may reasonably require from time to time in order to carry out more effectively
the purposes of the Loan Documents.
6.15 Unrestricted Subsidiaries. Ensure that all financial
statements of each Unrestricted Subsidiary distributed to any creditor of an
Unrestricted Subsidiary clearly states the separateness of such Unrestricted
Subsidiary from the Loan Parties.
6.16 Post-Closing Collateral Matters. The U.S. Borrower shall cause
the applicable U.S. Loan Parties, unless waived or extended by the U.S.
Administrative Agent in its sole discretion, to the extent such items have not
been provided as of the Closing Date, as follows:
(a) for a period of one hundred twenty (120) days after Closing
Date, to use their commercially reasonable efforts (it being understood that
such efforts shall not require the payment of any consideration other than
nominal review fees) to obtain and deliver to U.S.
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Administrative Agent, landlord access agreements for the leased Real Properties
listed on Schedule 6.16(a), each in form and substance reasonably acceptable to
the U.S. Administrative Agent.
(b) for a period of one hundred twenty (120) days after the
Closing Date to use their commercially reasonable efforts (it being understood
that such efforts shall not require the payment of any consideration other than
nominal review fees) to obtain and deliver to U.S. Administrative Agent, with
respect to the leased real properties listed on Schedule 6.16(b), a duly
executed and acknowledged landlord lien waiver, access agreement and consent
(each a "LANDLORD CONSENT"), each in form and substance reasonably acceptable to
the U.S. Administrative Agent.
(c) upon receipt of a Landlord Consent, to use their commercially
reasonable efforts (it being understood that such efforts shall not require the
payment of any consideration other than nominal review fees) to obtain, as soon
as practicable (it being understood that the Loan Parties shall use such efforts
to obtain within thirty (30) days of receipt of the Landlord Consent or as soon
as practicable thereafter), from the applicable landlord, an executed memorandum
(or notice, as the case may be) of lease in recordable form.
(d) within thirty (30) Business Days after receipt by the
applicable loan party of each Landlord Consent and the memorandum (or notice) of
lease executed by the applicable landlord (copies of which shall be delivered to
the U.S. Administrative Agent), to deliver a duly executed and acknowledged
Mortgage with respect to the applicable leased Real Property together with
financing statements and other instruments required by Section 4.01(a)(xi)(A)
hereof, together with:
(i) policies or certificates of insurance as required by Section
4.01(a)(xv) hereof;
(ii) such assurances, certificates, documents, consents, or
opinions as required by Section 4.01(a)(xx) hereof; and
(iii) copies of all leases in which a Loan Party holds the lessor's
interest or other agreements relating to possessory interests, if any. To
the extent any of the foregoing affect the leased Real Property to be
encumbered by such Mortgage, such agreement shall be subordinate to the
Lien of the Mortgage to be recorded against such real property, either
expressly by its terms or pursuant to a subordination, non-disturbance and
attornment agreement, and shall otherwise be acceptable to the
Administrative Agent.
(e) within sixty (60) Business Days after receipt by the
applicable loan party of each Landlord Consent and the memorandum (or notice) of
lease executed by the applicable landlord, to deliver the following:
(i) Mortgage Policies meeting the requirements of Section
4.01(a)(xi)(B) hereof;
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(ii) a survey meeting the requirements of Section 4.01(a)(xi)(C)
hereof; and
(iii) written opinions of local counsel in the states in which such
leased real property is located, as required by Section 4.01(a)(xi)(D)
herein.
(f) within 60 Business Days after the Closing Date to deliver (1)
a survey meeting the requirements of Section 4.01(a)(xi)(C) for the Real
Properties located at 000 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx; 0000 X. Xxxxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx; 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx; 000
X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx and 000 X. Xxxxxxx, Xxxxxxxx, Xxxxx and
(2) such duly executed affidavits and/or other documents requested by the title
company, each in form and substance suitable to the title company to induce it
to remove the standard survey exceptions from applicable Mortgage Policies and
issue survey-related endorsements required under Section 4.01(a)(xi) (B).
ARTICLE VII
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan
or other Obligation hereunder which is accrued or payable shall remain unpaid or
unsatisfied, or any Letter of Credit shall remain outstanding, Holdings and each
Borrower shall not, nor shall they permit any of their Restricted Subsidiaries
to, directly or indirectly:
7.01 Liens. Create, incur, assume or suffer to exist any Lien upon
any of its property, assets or revenues, whether now owned or hereafter
acquired, or sign or file or authorize the filing under the Uniform Commercial
Code, the PPSA, the Civil Code of Quebec or similar law of any jurisdiction a
financing statement or similar filing or registration that names Holdings, U.S.
Borrower or any of its Restricted Subsidiaries as debtor, or sign any security
agreement authorizing any secured party thereunder to file such financing
statement or similar filing or registration, other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01
and any modifications, replacements, renewals or extensions thereof;
provided that (i) the Lien does not extend to any additional property
other than (A) after-acquired property that is affixed or incorporated
into the property covered by such Lien and (B) proceeds and products
thereof and (ii) the renewal, extension or refinancing of the obligations
secured or benefited by such Liens is permitted by Section 7.03;
(c) Liens for taxes, assessments or governmental charges which are
not required to be paid pursuant to Section 6.04;
(d) statutory Liens of landlords, carriers, warehousemen,
mechanics, materialmen, repairmen or other like Liens arising in the
ordinary course of business which secure amounts not overdue for a period
of more than thirty (30) days or if more than thirty (30) days overdue,
are unfiled and no other action has been taken to enforce such Lien or
which are being contested in good faith and by appropriate proceedings
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diligently conducted which proceedings have the effect of preventing the
forfeiture or sale of the property subject to such Lien, if adequate
reserves with respect thereto are maintained on the books of the
applicable Person;
(e) (i) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA and (ii)
pledges and deposits in the ordinary course of business securing liability
for reimbursement or indemnification obligations of (including obligations
in respect of letters of credit or bank guarantees for the benefit of)
insurance carriers providing property, casualty or liability insurance to
Holdings, the Company or any of its Subsidiaries;
(f) deposits to secure the performance of bids, trade contracts,
governmental contracts and leases (other than Indebtedness for borrowed
money), statutory obligations, surety, stay, customs and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business and not in connection with Indebtedness for
money borrowed;
(g) easements, rights-of-way, restrictions, encroachments,
protrusions and other similar encumbrances and minor title defects
affecting real property which, in the aggregate, do not in any case
materially interfere with the ordinary conduct of the business of the
applicable Person;
(h) Liens securing judgments for the payment of money not
constituting an Event of Default under Section 8.01(h) and not yet
required to be paid pursuant to Section 6.04;
(i) Liens securing Indebtedness permitted under Section
7.03(b)(v); provided that (i) such Liens attach concurrently with or
within one hundred eighty (180) days after the acquisition, repair,
replacement or improvement (as applicable) of the property subject to such
Liens, (ii) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and the proceeds and the
products thereof and (iii) with respect to Capitalized Leases, such Liens
do not at any time extend to or cover any assets other than the assets
subject to such Capitalized Leases; provided that individual financings of
equipment provided by one lender may be cross-collateralized to other
financings of equipment provided by such lender on customary terms;
(j) leases, licenses, subleases or sublicenses granted to others
in the ordinary course of business and not interfering in any material
respect with the business of the U.S. Borrower or any of its material
Restricted Subsidiaries so long as any such leases or subleases on any
Real Property are subordinated to the Liens granted pursuant to the Loan
Documents;
(k) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods in the ordinary course of business;
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(l) Liens (i) of a collection bank arising under Section 4-210 of
the Uniform Commercial Code on items in the course of collection, (ii)
attaching to commodity trading accounts or other commodities brokerage
accounts incurred in the ordinary course of business; and (iii) in favor
of a banking institution arising as a matter of law encumbering deposits
(including the right of set-off) and which are within the general
parameters customary in the banking industry;
(m) Liens (i) on cash advances in favor of the seller of any
property to be acquired in an Investment permitted pursuant to Sections
7.02(h) and (n) to be applied against the purchase price for such
Investment, and (ii) consisting of an agreement to Dispose of any property
in a Disposition permitted under Section 7.05, in each case, solely to the
extent such Investment or Disposition, as the case may be, would have been
permitted on the date of the creation of such Lien;
(n) Liens on property of any Foreign Subsidiary (other than a
Canadian Subsidiary) securing Indebtedness of such Foreign Subsidiary to
the extent permitted under Section 7.03(b)(vi);
(o) Liens in favor of the U.S. Borrower or a Subsidiary of the
U.S. Borrower securing Indebtedness permitted under Section 7.03(b)(iv);
provided that if such Liens are on any property of a U.S. Loan Party, such
Liens are in favor of a U.S. Loan Party and if such Liens are on any
property of a Canadian Loan Party, such Liens are in favor of a Loan
Party;
(p) Liens existing on property at the time of its acquisition or
existing on the property of any Person that becomes a Restricted
Subsidiary after the date hereof (other than Liens on the Equity Interests
of any Person that becomes a Restricted Subsidiary); provided that (i)
such Lien was not created in contemplation of such acquisition or such
Person becoming a Restricted Subsidiary, (ii) such Lien does not extend to
or cover any other assets or property (other than the proceeds or products
thereof), and (iii) the Indebtedness secured thereby is permitted under
Section 7.03(b)(v), (ix) or (xii);
(q) Liens arising from precautionary UCC financing statement (or
the foreign equivalent thereof) filings regarding leases entered into by
U.S. Borrower or any of its Restricted Subsidiaries in the ordinary course
of business;
(r) any interest or title of a lessor, sublessor, licensee,
sublicensee, licensor or sublicensor under any lease or license agreement
in the ordinary course of business permitted by this Agreement;
(s) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for sale of goods entered into by the
U.S. Borrower or any of its Restricted Subsidiaries in the ordinary course
of business permitted by this Agreement;
(t) Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 7.02;
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(u) Liens encumbering reasonable customary initial deposits and
margin deposits and similar Liens attaching to commodity trading accounts
or other brokerage accounts incurred in the ordinary course of business
and not for speculative purposes;
(v) Permitted Encumbrances; and
(w) other Liens securing Indebtedness outstanding in an aggregate
principal amount not to exceed $37,500,000.
7.02 Investments. Make or hold any Investments, except:
(a) Investments held by the U.S. Borrower or such Restricted
Subsidiary in the form of Cash Equivalents;
(b) loans or advances to officers, directors and employees of the
U.S. Borrower and Restricted Subsidiaries in an aggregate amount not to
exceed $5,000,000 at any time outstanding;
(c) Investments (i) by Holdings, the U.S. Borrower or any of its
Restricted Subsidiaries in any U.S. Loan Party (including any new
Restricted Subsidiary which becomes a U.S. Loan Party), (ii) by any
Canadian Loan Party (x) in any other Canadian Loan Party and (y) in any
Foreign Subsidiary that is a Restricted Subsidiary but not a Loan Party in
an amount not to exceed $35,000,000 at any time outstanding, (iii) by any
Restricted Subsidiary that is not a Loan Party in any other such
Restricted Subsidiary, (iv) Investment by the U.S. Borrower or any
Restricted Subsidiary that is a Loan Party in any Restricted Subsidiary
that is not a U.S. Loan Party in an aggregate amount not to exceed
$50,000,000 at any time outstanding plus any Specified Issuance Proceeds
Not Otherwise Applied, and (v) by the U.S. Borrower or any Restricted
Subsidiary in any Foreign Subsidiary consisting of (A) the contribution of
Equity Interests of any other Foreign Subsidiary held directly by the U.S.
Borrower or such Restricted Subsidiary in exchange for Indebtedness,
Equity Interests or a combination thereof of the Foreign Subsidiary to
which such contribution is made; provided that if such Equity Interests
are of a Canadian Loan Party, such contribution is to a Canadian Loan
Party or (B) the exchange of Equity Interests in any Foreign Subsidiary
for Indebtedness of such Foreign Subsidiary;
(d) Investments consisting of extensions of credit in the nature
of accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled
account debtors;
(e) Investments arising out of transactions expressly permitted
under Sections 7.01, 7.03(b)(iv) (other than subclause (C)(2) thereof) and
(c)(iii), 7.05 (other than clauses (b), (d), (g), (h) and (l) thereof) and
7.06;
(f) Investments existing on the date hereof and set forth on
Schedule 7.02 and any modification, replacement, renewal or extension
thereof; provided that the amount of
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the original Investment is not increased except as otherwise permitted by
this Section 7.02;
(g) Investments in Swap Contracts permitted under Section 7.03;
(h) the purchase or other acquisition of all or substantially all
of the property and assets or business of, any Person or of assets
constituting a business unit, a line of business or division of such
Person, or of at least 80% of the Equity Interests in a Person that, upon
the consummation thereof, will be owned directly by the U.S. Borrower or
one or more of its wholly owned Restricted Subsidiaries (including,
without limitation, as a result of a merger or consolidation); provided
that, with respect to each purchase or other acquisition made pursuant to
this Section 7.02(h) (each, a "PERMITTED ACQUISITION"):
(A) each applicable Loan Party and any such newly created or
acquired Subsidiary shall comply with the applicable requirements of
Section 6.12;
(B) the total cash and non-cash consideration (including,
without limitation, the fair market value of all Equity Interests
issued or transferred to the sellers thereof, earnouts and other
contingent payment obligations (as estimated by the U.S. Borrower in
good faith on the date of such acquisition) to such sellers and all
assumptions of Indebtedness in connection therewith, but excluding
any Excluded Consideration) paid by or on behalf of the U.S.
Borrower and its Restricted Subsidiaries for any such purchase or
other acquisition, when aggregated with the total cash and non-cash
consideration paid by or on behalf of the U.S. Borrower and its
Restricted Subsidiaries for all other purchases and other
acquisitions made by the U.S. Borrower and its Subsidiaries pursuant
to this Section 7.02(h), shall not exceed $200,000,000;
(C) (1) immediately before and immediately after giving Pro
Forma Effect to any such purchase or other acquisition, no Default
shall have occurred and be continuing and (2) immediately after
giving effect to such purchase or other acquisition, (x) Holdings
and its Subsidiaries shall be in Pro Forma Compliance with all of
the covenants set forth in Section 7.11, such compliance to be
determined on the basis of the financial information most recently
delivered to the Administrative Agents and the Lenders pursuant to
Section 6.01(a) or (b) as though such purchase or other acquisition
had been consummated as of the first day of the fiscal period
covered thereby and evidenced by a certificate from the Chief
Financial Officer of the U.S. Borrower demonstrating such compliance
calculation in reasonable detail, (y) at least $25,000,000 of the
U.S. Revolving Credit Facility shall be available for the borrowing
of Revolving Credit Loans;
(D) the U.S. Borrower shall have delivered to the U.S.
Administrative Agent, on behalf of the Lenders, at least one (1)
Business Day prior to the date on which any such purchase or other
acquisition is to be consummated, a certificate of a Responsible
Officer, in form and substance reasonably satisfactory to the U.S.
Administrative Agent, certifying that all of the requirements set
forth in this
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clause (i) have been satisfied or will be satisfied on or prior to
the consummation of such purchase or other acquisition; and
(E) except to the extent the purchase price therefor is paid
by a Foreign Subsidiary, the fair market value of all property
acquired in Permitted Acquisitions which is contributed to or owned
by Subsidiaries that are not U.S. Loan Parties shall be deemed to be
an Investment permitted only to the extent made pursuant to Section
7.02(c)(iv);
(i) the Acquisition and the Mergers;
(j) Investments in the ordinary course of business consisting of
(i) endorsements for collection or deposit and (ii) customary trade
arrangements with customers consistent with past practices;
(k) Investments (including debt obligations and Equity Interests)
received in connection with the bankruptcy or reorganization of suppliers
and customers and in settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the ordinary course of
business and upon the foreclosure with respect to any secured Investment
or other transfer of title with respect to any secured Investment;
(l) the licensing, sublicensing or contribution of IP Rights
pursuant to joint marketing arrangements with Persons other than Holdings
and its Restricted Subsidiaries in the ordinary course of business;
(m) loans and advances to Holdings in lieu of, and not in excess
of the amount of (after giving effect to any other loans, advances or
Restricted Payments in respect thereof), Restricted Payments to the extent
permitted to be made to Holdings in accordance with Section 7.06;
(n) so long as immediately after giving effect to any such
Investment, (i) no Event of Default has occurred and is continuing and
(ii) at least $25,000,000 of the U.S. Revolving Credit Facility shall be
available for the borrowing of Revolving Credit Loans, other Investments
by the U.S. Borrower and its Restricted Subsidiaries (or which are
immediately contributed to the U.S. Borrower or its Subsidiaries) not
exceeding $25,000,000 in any fiscal year (with a prorated amount available
for the period from the Closing Date to December 31, 2004) plus the amount
of Specified Issuance Proceeds Not Otherwise Applied; provided, however,
that (i) such $25,000,000 annual amount shall be increased to (A)
$30,000,000, for so long as the Leverage Ratio as of the last day of the
immediately preceding four fiscal quarters was less than 4.5:1 and (B)
$35,000,000 for so long as the Leverage Ratio as of the last day of the
immediately preceding four fiscal quarters was less than 4.0:1 and (ii)
any unutilized amounts may be carried over to subsequent years; provided,
further, that, to the extent that any such Investment (or series of
related Investments) made pursuant to this clause (n) consists of the
contribution(s) or other transfer(s) of property (other than cash) having
an aggregate net book value in excess of $5,000,000 to a Joint Venture for
consideration less than the fair market value of such property, then the
U.S. Borrower shall have delivered to the U.S. Administrative
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Agent a pro forma Compliance Certificate demonstrating that, upon after
giving Pro Forma Effect to such Investment(s), the Loan Parties would be
in compliance with the financial covenants set forth in Section 7.11; and
(o) Investments by the U.S. Borrower or any Restricted Subsidiary
deemed to occur upon the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary; provided that the aggregate amount of all
Investments made by the U.S. Borrower and its Restricted Subsidiaries
pursuant to this Section 7.02(o) (measured based on the fair market value
of each such Investment on the date of designation without giving effect
to any subsequent changes in fair market value) does not exceed
$25,000,000.
7.03 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) in the case of the U.S. Borrower:
(i) [intentionally omitted];
(ii) Indebtedness evidenced by the Existing Notes remaining
outstanding after giving effect to the consummation of the Existing
Notes Tender Offer (other than any Existing Notes which have been
irrevocably called for redemption on the Closing Date) the amounts
of which are set forth on Schedule 7.03(a)(ii);
(iii) Indebtedness under Existing Notes which have been
irrevocably called for redemption on the Closing Date and which are
redeemed within five Business Days after the Closing Date; and
(iv) Permitted Subordinated Indebtedness (A) in an aggregate
amount not to exceed $50,000,000 at any time outstanding, and (B) in
an aggregate amount in excess of $50,000,000 solely to the extent
that such excess amounts are applied to prepay the Loans pursuant to
Section 2.05(b)(v);
(b) in the case of U.S. Borrower and its Restricted Subsidiaries:
(i) Indebtedness of the Loan Parties under the Loan
Documents;
(ii) Indebtedness outstanding on the date hereof and listed
on Schedule 7.03(b) and any modifications, refinancings, refundings,
renewals or extensions thereof; provided that (A) the amount of such
Indebtedness is not increased at the time of such modification,
refinancing, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and
fees and expenses reasonably incurred, in connection with such
refinancing or as otherwise permitted pursuant to this Section 7.03,
and (B) the terms and conditions (including, if applicable, as to
collateral and subordination) of any such modified, extending,
refunding or refinancing Indebtedness are not
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materially less favorable to the Loan Parties or the Lenders than
the terms and conditions of the Indebtedness being modified,
extended, refunded or refinanced;
(iii) Guarantees of the U.S. Borrower and its Restricted
Subsidiaries in respect of Indebtedness of the U.S. Borrower or such
Restricted Subsidiary otherwise permitted under this Section
7.03(b); provided that (i) if such Guarantee is a Guarantee of
Indebtedness of a U.S. Loan Party by any Restricted Subsidiary, such
Restricted Subsidiary is a U.S. Loan Party or such Restricted
Subsidiary shall have also provided a Guarantee of the Obligations
substantially on the terms set forth in the U.S. Subsidiary
Guaranty, (ii) if such Guarantee is a Guarantee of Indebtedness of a
Canadian Loan Party by any Restricted Subsidiary, such Restricted
Subsidiary is a Loan Party or such Restricted Subsidiary shall have
also provided a Guarantee of the Canadian Obligations substantially
on the terms set forth in the Canadian Guaranty and (iii) if such
Indebtedness is subordinated to the Obligations, such Guarantee
shall be also be subordinated to the Obligations on terms no less
favorable to the Lenders;
(iv) Indebtedness of (A) any U.S. Loan Party owing to any
other U.S. Loan Party, (B) any Canadian Loan Party owing to any
other Loan Party, (C) any Restricted Subsidiary that is not a Loan
Party owing to (1) any other Restricted Subsidiary that is not a
Loan Party or (2) Holdings or a Loan Party in respect of an
Investment permitted under Section 7.02(c) or (n), and (D) any Loan
Party owing to any Restricted Subsidiary which is not a Loan Party;
provided that all such Indebtedness of any Loan Party in this clause
(iv)(D) must be expressly subordinated to the Obligations or the
Canadian Obligations, as applicable and be represented by the
Intercompany Note;
(v) Attributable Indebtedness and purchase money obligations
(including obligations in respect of mortgage, industrial revenue
bond, industrial development bond and similar financings) to finance
the purchase, repair or improvement of fixed or capital assets
within the limitations set forth in Section 7.01(i) and any
Permitted Refinancing thereof; provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall
not exceed $30,000,000;
(vi) Indebtedness of Foreign Subsidiaries in an aggregate
principal amount at any time outstanding for all such Persons taken
together not exceeding $50,000,000 less the aggregate amount of the
Canadian Credit Commitments at such time;
(vii) Indebtedness in respect of Swap Contracts designed to
hedge against foreign exchange rates or commodities pricing risks
incurred in the ordinary course of business and not for speculative
purposes;
(viii) Indebtedness (other than for borrowed money) subject to
Liens permitted under Section 7.01;
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(ix) Indebtedness (A) of the U.S. Borrower or a Restricted
Subsidiary assumed in connection with any Permitted Acquisition (and
not created in contemplation thereof) or (B) Indebtedness of the
U.S. Borrower owed to the seller of any property acquired in a
Permitted Acquisition on an unsecured subordinated basis (on terms
no less favorable to the Lenders than the terms of the Senior
Subordinated Notes), in each case, so long as both immediately prior
and after giving effect thereto, (x) no Event of Default shall exist
or result therefrom, and (y) U.S. Borrower and its Subsidiaries will
be in Pro Forma Compliance with the covenants set forth in Section
7.11, after giving effect to such Permitted Acquisition and the
incurrence or issuance of such Indebtedness and any Permitted
Refinancing thereof; provided that the aggregate principal amount of
Indebtedness incurred pursuant to clause (B) that matures prior to
the Maturity Date of all of the Facilities shall not exceed
$25,000,000 at any time outstanding ;
(x) Indebtedness representing deferred compensation to
employees of the U.S. Borrower and its Restricted Subsidiaries under
deferred compensation plans comparable to the deferred compensation
plans of Holdings and its Subsidiaries as in effect on the Closing
Date;
(xi) Indebtedness consisting of promissory notes issued by
any Loan Party to current or former officers, directors and
employees, their respective estates, spouses or former spouses to
finance the purchase or redemption of Equity Interests of Holdings
or Investors LLC permitted by Section 7.06;
(xii) Indebtedness incurred by the U.S. Borrower or its
Restricted Subsidiaries in a Permitted Acquisition or Disposition
under agreements providing for customary adjustments of the purchase
price;
(xiii) Indebtedness consisting of obligations of the U.S.
Borrower or its Restricted Subsidiaries under deferred compensation
or other similar arrangements incurred by such Person after the
Closing Date in an aggregate amount not to exceed $5,000,000;
(xiv) Cash Management Obligations and other Indebtedness in
respect of endorsements for collection or deposit, netting services,
overdraft protections and similar arrangements in each case in
connection with deposit accounts;
(xv) Indebtedness in an aggregate principal amount not to
exceed $75,000,000 at any time outstanding;
(xvi) Indebtedness evidenced by the Senior Subordinated Notes
and any Permitted Refinancing thereof;
(xvii) Indebtedness consisting of (a) the financing of
insurance premiums, (b) take-or-pay obligations contained in supply
arrangements and (c) customary indemnification obligations, in each
case, incurred in the ordinary course of business and not in
connection with debt for money borrowed;
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(xviii) Indebtedness incurred by the U.S. Borrower or any of
its Restricted Subsidiaries constituting reimbursement obligations
with respect to letters of credit issued in the ordinary course of
business in respect of workers compensation claims, health,
disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with
respect to reimbursement-type obligations regarding workers
compensation claims in the ordinary course of business; provided
that upon the drawing of such letters of credit or the incurrence of
such Indebtedness, such obligations are reimbursed within 30 days
following such drawing or incurrence; and
(xix) obligations in respect of performance and surety bonds
and performance and completion guarantees provided by the U.S.
Borrower or any of its Restricted Subsidiaries or obligations in
respect of letters of credit related thereto, in each case in the
ordinary course of business consistent with past practice and not in
connection with debt for money borrowed; and
(c) in the case of Holdings:
(i) Indebtedness under the Loan Documents;
(ii) unsecured Indebtedness of Holdings that ("PERMITTED
HOLDCO DEBT") (A) is not subject to any Guarantee by the U.S.
Borrower or any of its Restricted Subsidiaries, (B) will not mature
prior to the date that is ninety-one (91) after the Maturity Date of
the Term Facility, (C) has no amortization, mandatory prepayment
events or payments of principal, (D) does not permit any payments in
cash of interest or other amounts in respect of the principal
thereof for at least five (5) years from the date of the issuance or
incurrence thereof, and (E) has mandatory prepayment (including any
original issue discount catch-up payment not earlier than the first
scheduled interest payment following the fifth anniversary of the
date of issuance), repurchase or redemption, covenant, default and
remedy provisions customary for senior discount notes of an issuer
that is the parent of a borrower under senior secured credit
facilities, and in any event, with respect to covenant, default and
remedy provisions, no more restrictive than those contained in the
Senior Subordinated Notes Indenture, taken as a whole (other than
provisions customary for senior discount notes of a holding
company); provided any such Indebtedness shall constitute Permitted
Holdco Debt only if (i) both before and after giving effect to the
issuance or incurrence thereof, no Default or Event of Default shall
have occurred and be continuing, and (ii) after giving Pro Forma
Effect to the issuance or incurrence thereof, the Holdings
Consolidated Leverage Ratio shall be less than 6.00:1.00 and the
Leverage Ratio shall be less than 4.25:1.00;
(iii) [Intentionally Omitted]
(iv) Indebtedness permitted to be incurred by Holdings
pursuant to clause (b)(iv) above;
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(v) Indebtedness which is owed to the seller of any property
acquired in a Permitted Acquisition on an unsecured subordinated
basis (on terms no less favorable to the Lenders than those set
forth in the Senior Subordinated Notes) so long as (A) the Holdings
Consolidated Leverage Ratio shall be less than 6.00:1.00 and (B) if
applicable, Holdings complies with the proviso in Section 7.06(f)(v)
(whether or not any Restricted Payment is made to Holdings); and
(vi) Indebtedness of the type described in Sections
7.03(b)(viii), (xi), (xii), (xvii)(a) and (xix).
7.04 Fundamental Changes. Merge, dissolve, liquidate, amalgamate,
consolidate with or into another Person, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Default exists or would result therefrom:
(a) any Restricted Subsidiary may merge with (i) the U.S. Borrower
(including a merger, the purpose of which is to reorganize the U.S.
Borrower into a new jurisdiction which is a State of the United States of
America), provided that the U.S. Borrower shall be the continuing or
surviving Person or the surviving Person shall expressly assume the
obligations of the U.S. Borrower pursuant to documents reasonably
acceptable to the U.S. Administrative Agent, or (ii) any one or more other
Restricted Subsidiaries, provided that when any U.S. Guarantor is merging
with another Restricted Subsidiary, the U.S. Guarantor shall be the
continuing or surviving Person;
(b) any Canadian Subsidiary may merge or amalgamate with (i) a
Canadian Borrower (including a merger or amalgamation, the purpose of
which is to reorganize a Canadian Borrower into a new jurisdiction which
is a province of Canada), provided that such Canadian Borrower shall be
the continuing or surviving Person or the surviving Person shall expressly
assume the obligations of such Canadian Borrower pursuant to documents
reasonably acceptable to the Canadian Administrative Agent, or (ii) any
one or more other Restricted Subsidiaries, provided that when any Canadian
Guarantor is merging or amalgamating with another Restricted Subsidiary, a
Guarantor shall be the continuing or surviving Person;
(c) any Restricted Subsidiary may Dispose of all or substantially
all of its assets (upon voluntary liquidation or otherwise) to (i) the
U.S. Borrower or to another Restricted Subsidiary; provided that if the
transferor in such a transaction is a Guarantor, then the transferee must
either be the U.S. Borrower or a U.S. Guarantor or (ii) a Canadian
Borrower or another Restricted Subsidiary; provided that if the transferor
in such transaction is a Canadian Loan Party, then the transferee must be
a Loan Party;
(d) any Restricted Subsidiary may merge or amalgamate with or
Dispose of all or substantially all of its assets to any other Person in
order to effect an Investment permitted pursuant to Section 7.02; provided
that if the continuing or surviving Person shall be a Restricted
Subsidiary, such Restricted Subsidiary and each of its Restricted
Subsidiaries shall have complied with the applicable requirements of
Section 6.12;
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(e) the U.S. Borrower and its Restricted Subsidiaries may
consummate the Acquisition and the Mergers; and
(f) a merger, dissolution, liquidation, consolidation or
Disposition, the purpose of which is to effect a Disposition permitted
pursuant to Section 7.05 (other than clause (e) thereof).
7.05 Dispositions. Make any Disposition or enter into any agreement
to make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business and
Dispositions of property no longer used in the conduct of the business of
the U.S. Borrower and its Restricted Subsidiaries;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of property to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are promptly applied to
the purchase price of such replacement property;
(d) Dispositions of property by any Restricted Subsidiary to the
U.S. Borrower or to a Restricted Subsidiary; provided that (A) if the
transferor of such property is a U.S. Loan Party either (i) the transferee
is a U.S. Loan Party or (ii) to the extent such transaction constitutes an
Investment, such transaction is permitted under Section 7.02 and (B) if
the transferor of such property is a Canadian Loan Party either (i) the
transferee is a Loan Party or (ii) to the extent such transaction
constitutes an Investment, such transaction is permitted under Section
7.02;
(e) Dispositions permitted by Sections 7.04 and 7.06 (solely with
respect to reissuances of Equity Interests of treasury stock of Holdings);
(f) Dispositions by the U.S. Borrower and its Restricted
Subsidiaries of property pursuant to sale-leaseback transactions; provided
that (i) the fair market value of all property so Disposed of shall not
exceed $25,000,000 from and after the Closing Date and (ii) the purchase
price for such property shall be paid to the U.S. Borrower or such
Restricted Subsidiary for not less than 75% cash consideration;
(g) Dispositions of Cash Equivalents;
(h) Dispositions of accounts receivable in connection with the
collection or compromise thereof;
(i) licensing or sublicensing of IP Rights in the ordinary course
of business on customary terms;
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(j) Dispositions of assets listed on Schedule 7.05(j);
(k) leases, subleases, licenses or sublicenses of property in the
ordinary course of business and which do not materially interfere with the
business of Holdings and its Subsidiaries;
(l) transfers of property subject to Casualty Events upon receipt
of the Net Cash Proceeds of such Casualty Event; and
(m) Dispositions by the U.S. Borrower and its Restricted
Subsidiaries not otherwise permitted under this Section 7.05; provided
that (i) at the time of such Disposition, no Event of Default shall exist
or would result from such Disposition, (ii) the aggregate fair market
value of all property Disposed of in reliance on this clause (m) shall not
exceed $75,000,000 (excluding any property Disposed of in a Disposition or
series of related Dispositions involving property with an aggregate fair
market value of less than $5,000,000), and (iii) the purchase price for
such property shall be paid to the U.S. Borrower or such Subsidiary for
not less than 75% cash consideration;
provided, however, that (x) any Disposition of any property pursuant to this
Section 7.05 (except pursuant to Sections 7.05(d)(A)(i), (d)(B)(i), (e), (h) and
(j)), shall be for no less than the fair market value of such property at the
time of such Disposition and (y) if (A) such Disposition constitutes a Material
Disposition and (B) at least $25,000,000 in Material Dispositions pursuant to
Section 7.05(m) have been made in the aggregate following the Closing Date,
prior to any Disposition of such property pursuant to Section 7.05(m), the U.S.
Borrower shall deliver to the Administrative Agents a pro forma Compliance
Certificate demonstrating that, upon giving effect on a Pro Forma Basis to such
transaction, the Loan Parties would be in compliance with the financial
covenants set forth in Section 7.11. To the extent any Collateral is Disposed of
as expressly permitted by this Section 7.05 (other than to a Loan Party), such
Collateral shall be sold free and clear of the Liens created by the Loan
Documents, and the Administrative Agents shall be authorized to take any actions
deemed appropriate in order to effect the foregoing.
7.06 Restricted Payments. Declare or make, directly or indirectly,
any Restricted Payment, except:
(a) each Restricted Subsidiary may make Restricted Payments to the
U.S. Borrower and to Restricted Subsidiaries (and, in the case of a
Restricted Payment by a non-wholly-owned Restricted Subsidiary, to the
U.S. Borrower and any Restricted Subsidiary and to each other owner of
Equity Interests of such Restricted Subsidiary based on their relative
ownership interests);
(b) Holdings and each Restricted Subsidiary may declare and make
dividend payments or other distributions payable solely in the Equity
Interests (other than Disqualified Equity Interests) of such Person;
(c) so long as no Default shall have occurred and be continuing or
would result therefrom, Holdings and the Borrower may make Restricted
Payments with the Net Cash Proceeds from any Permitted Equity Issuance or
Permitted Holdco Debt (in each
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case, to the extent constituting Specified Issuance Proceeds) or up to
$25,000,000 of Permitted Subordinated Debt, in each case, to the extent
Not Otherwise Applied;
(d) the U.S. Borrower may make Restricted Payments (i) on the
Closing Date to consummate the Acquisition, the Mergers and the other
Transactions to the extent contemplated by the Acquisition Agreement and
(ii) following the Closing Date with (A) the amounts released from the
reserve against indemnification or other post-closing financial
obligations funded with the proceeds of the sale of LC Holdings USA LLC,
LaCornue International, Inc. and their respective Subsidiaries to the
extent required pursuant to the Acquisition Agreement, and (B) an amount
equal to any reduction in taxes realized by the U.S. Borrower and its
Restricted Subsidiaries in the form of refunds or deductions realized in
connection with the Transactions (the "TAX REDUCTION AMOUNT") minus the
amount used to prepay, redeem, purchase or defease Junior Financing
pursuant to Section 7.14(a)(i)(B) in reliance on this Section
7.06(d)(ii)(B); provided that, (x) prior to making a Restricted Payment
pursuant to this Section 7.06(d)(ii)(B), a Responsible Officer of the U.S.
Borrower shall have delivered an officer's certificate to the U.S.
Administrative Agent setting forth a reasonably detailed calculation of
the Tax Reduction Amount realized by the U.S. Borrower as of the date of
such officer's certificate and the amount of Restricted Payments and the
amount of prepayments, redemptions, purchases and defeasances of Junior
Financing previously made in reliance on this Section 7.06(d)(ii)(B) and
demonstrating Pro Forma Compliance with each of the covenants set forth in
Section 7.11 and (y) if any portion of such Restricted Payment (the "EARLY
PAYMENT AMOUNT") is made prior to August 27, 2005, an amount equal to the
Early Payment Amount shall concurrently be applied by the U.S. Borrower to
prepay Term Loans pursuant to Section 2.05(a) and the amount so applied to
prepayments shall reduce the amount available for Restricted Payments
pursuant to this Section 7.06(d)(ii)(B);
(e) to the extent constituting Restricted Payments, the U.S.
Borrower and its Restricted Subsidiaries may enter into transactions
expressly permitted by Section 7.04 or 7.08;
(f) any Restricted Subsidiary of Holdings may make Restricted
Payments to Holdings (and Holdings may make the Restricted Payments
referred to in paragraph (iv) of this clause (f)):
(i) the proceeds of which will be used to pay the tax
liability for the relevant jurisdiction in respect of consolidated,
combined, unitary or affiliated returns for the relevant
jurisdiction of Holdings attributable to the U.S. Borrower and its
Restricted Subsidiaries determined as if the U.S. Borrower and its
Restricted Subsidiaries filed separately;
(ii) the proceeds of which shall be used by Holdings to pay
its (or to make a Restricted Payment to Investors LLC to enable it
to pay) operating expenses incurred in the ordinary course of
business and other corporate overhead costs and expenses (including,
without limitation, administrative, legal, accounting and similar
expenses provided by third parties), which are reasonable
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and customary and incurred in the ordinary course of business, in an
aggregate amount not to exceed $3,000,000 in any fiscal year plus
any reasonable and customary indemnification claims made by ----
directors or officers of Holdings attributable to the ownership or
operations of the U.S. Borrower and its Restricted Subsidiaries;
(iii) the proceeds of which shall be used by Holdings to pay
(or to make a Restricted Payment to Investors LLC to enable it to
pay) its franchise taxes;
(iv) the proceeds of which will be used to repurchase the
Equity Interests of Holdings from, or to make a Restricted Payment
to Investors LLC to enable it to repurchase its Equity Interests
from, directors, employees or members of management of Holdings, the
U.S. Borrower or any Restricted Subsidiary (or their estate, family
members, spouse and/or former spouse), in an aggregate amount not in
excess of $7,500,000 in any calendar year plus the proceeds of any
key-man life insurance maintained by Holdings, the U.S. Borrower or
any of its Restricted Subsidiaries; provided that the U.S. Borrower
may carry-over and make in any subsequent calendar year or years, in
addition to the amount for such calendar year, the amount not
utilized in the prior calendar year or years up to a maximum of
$15,000,000;
(v) to finance any Investment permitted to be made pursuant
to Section 7.02; provided that (A) such Restricted Payment shall be
made concurrently with the closing of such Investment and (B)
Holdings shall, immediately following the closing thereof, cause (1)
all property acquired (whether assets or Equity Interests) to be
contributed to the U.S. Borrower or its Restricted Subsidiaries or
(2) the merger (to the extent permitted in Section 7.04) of the
Person formed or acquired into the U.S. Borrower or its Subsidiaries
in order to consummate such Permitted Acquisition; or
(vi) the proceeds of which shall be used by Holdings to pay
fees and expenses (other than to Affiliates) related to any
unsuccessful equity or debt offering;
(g) in addition to the foregoing Restricted Payments, so long as
no Default shall have occurred and is continuing or would result
therefrom, the U.S. Borrower may make additional Restricted Payments to
Holdings the proceeds of which may be utilized by Holdings to make
additional Restricted Payments in an aggregate amount not to exceed (A)
$10,000,000 (such amount to be increased to (x) $20,000,000 for so long as
at the Leverage Ratio at the time of determination is less than 4.00:1.00
as of the end of the most recent fiscal quarter for which financial
statements were required to be delivered pursuant to Sections 6.01(a) and
6.01(b) and (y) $30,000,000 for so long as at the Leverage Ratio is less
than 3.50:1.00 as of the end of the most recent fiscal quarter for which
financial statements were required to be delivered pursuant to Sections
6.01(a) and 6.01(b)) plus (B) without duplication, 50% of Consolidated Net
Income for the period (taken as one accounting period) commencing with the
start of the U.S. Borrower's 2005 fiscal year and ending on the date of
the U.S. Borrower's most recently ended fiscal
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quarter for which financial statements required to be delivered pursuant
to Section 6.01(a) or (b) are available at the time of such Restricted
Payment (or, if Consolidated Net Income for such period is negative, less
100% of such deficit) minus (C) the amount used to prepay, redeem,
purchase or defease Junior Financing pursuant to Section 7.14(a)(i)(B);
and
(h) repurchases of Equity Interests of Holdings deemed to occur
upon the non-cash exercise of stock options and warrants.
7.07 Change in Nature of Business. Engage in any material line of
business substantially different from those lines of business conducted by the
U.S. Borrower and its Restricted Subsidiaries on the date hereof or any business
reasonably related or ancillary thereto.
7.08 Transactions with Affiliates. Enter into any transaction of
any kind with any Affiliate of the U.S. Borrower, whether or not in the ordinary
course of business, other than (a) transactions (i) between or among U.S. Loan
Parties, (ii) between or among Canadian Loan Parties, (iii) between or among
Canadian Loan Parties and U.S. Loan Parties on terms substantially as favorable
to the U.S. Loan Parties as would be obtainable by the U.S. Loan Parties at the
time in a comparable arm's-length transaction with a Person other than an
Affiliate, (iv) between or among Canadian Loan Parties and Subsidiaries that are
not Loan Parties on terms substantially as favorable to the Canadian Loan
Parties as would be obtainable by the Canadian Loan Parties at the time in a
comparable arm's-length transaction with a Person other than an Affiliate, (v)
between or among Restricted Subsidiaries that are not Loan Parties and (vi)
between or among the Loan Parties, the Restricted Subsidiaries and/or any joint
venture in which any of them owns an interest, in each case, in the ordinary
course of business, (b) on fair and reasonable terms substantially as favorable
to the applicable Borrower or such Restricted Subsidiary as would be obtainable
by the applicable Borrower or such Restricted Subsidiary at the time in a
comparable arm's-length transaction with a Person other than an Affiliate, (c)
the payment of fees, expenses and other payments made in connection with the
consummation of the Transactions, (d) so long as no Event of Default shall have
occurred and be continuing under Section 8.01(f), the payment of fees to the
Sponsor pursuant to the Sponsor Management Agreement, (e) equity issuances by
Holdings permitted under Section 7.06, (f) loans and other transactions by
Holdings and its Restricted Subsidiaries to the extent permitted under Section
7.06 or clauses (b), (c), (e) and (m) of Section 7.02, (g) customary fees may be
paid to any directors of Holdings and reimbursement of reasonable out-of-pocket
costs of the directors of Holdings, (h) Holdings and its Restricted Subsidiaries
may enter into employment and severance arrangements with officers and employees
in the ordinary course of business, (i) the payment of customary fees and
reasonable out-of-pocket cost to, and indemnities provided on behalf of,
directors, officers, employees and consultants of the Holdings, the U.S.
Borrower and the Subsidiaries in the ordinary course of business to the extent
attributable to the ownership or operation of the U.S. Borrower and its
Restricted Subsidiaries, as determined in good faith by the board of directors
of the U.S. Borrower or senior management thereof, (j) transactions pursuant to
permitted agreements in existence on the Closing Date and set forth on Schedule
7.08 or any amendment thereto to the extent such an amendment is not adverse to
the Lenders in any material respect, (k) dividends, redemptions and repurchases
permitted under Section 7.06, and (l) payments by Holdings, the U.S. Borrower
and any Restricted Subsidiaries to the Sponsor
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made for any customary financial advisory, financing, underwriting or placement
services or in respect of other investment banking activities, including in
connection with acquisitions or divestitures, which payments are (A) pursuant to
the Sponsor Management Agreement as in effect on the Closing Date and (B)
approved by the majority of the members of the board of directors or a majority
of the disinterested members of the board of directors of the U.S. Borrower, in
each case in good faith.
7.09 Burdensome Agreements. Enter into or permit to exist any
Contractual Obligation (other than this Agreement or any other Loan Document)
that limits the ability (a) of any Restricted Subsidiary of the U.S. Borrower to
make Restricted Payments to the U.S. Borrower or any Guarantor or to otherwise
transfer property to or invest in the Borrower or any Guarantor, except for any
agreement in effect (i) (x) on the date hereof and (y) to the extent Contractual
Obligations permitted by clause (x) are set forth in an agreement evidencing
Indebtedness, are set forth in any agreement evidencing any permitted renewal,
extension or refinancing of such Indebtedness so long as such renewal, extension
or refinancing does not expand the scope of such Contractual Obligation, (ii) at
the time any Subsidiary becomes a Restricted Subsidiary, so long as such
agreement was not entered into solely in contemplation of such Person becoming a
Restricted Subsidiary, (iii) representing Indebtedness of a Restricted
Subsidiary which is not a Loan Party which is permitted by Section 7.03, or (iv)
in connection with any Disposition permitted by Section 7.05 relating solely to
the assets to be disposed of, and (b) of the U.S. Borrower or any Loan Party to
create, incur, assume or suffer to exist Liens on property of such Person for
the benefit of the Lenders with respect to the Facilities and the Obligations or
under the Loan Documents except for (i) negative pledges and restrictions on
Liens in favor of any holder of Indebtedness permitted under Section 7.03 but
solely to the extent any negative pledge relates to the property subject to a
Lien permitted by Section 7.01 or (ii) customary restrictions on leases,
subleases, licenses or asset sale agreements otherwise permitted hereby so long
as such restrictions may relate to the assets subject thereto; provided,
however, that clauses (a) and (b) shall not prohibit Contractual Obligations
that (i) are customary provisions in joint venture agreements and other similar
agreements applicable to joint ventures permitted under Section 7.02 and
applicable solely to such joint venture entered into in the ordinary course of
business, or (ii) apply only to the property or assets securing Indebtedness
permitted to be secured by such property or assets by Section 7.01 and Section
7.03, (iii) are customary provisions restricting subletting or assignment of any
lease governing a leasehold interest, (iv) are customary provisions restricting
assignment of any agreement entered into in the ordinary course of business and
(v) are restrictions on cash or other deposits imposed by customers under
contracts entered into in the ordinary course of business.
7.10 Use of Proceeds. Use the proceeds of any Credit Extension,
whether directly or indirectly, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the
purpose of purchasing or carrying margin stock or to refund Indebtedness
originally incurred for such purpose.
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7.11 Financial Covenants.
(a) Leverage Ratio. Permit the Leverage Ratio as of the end of any
fiscal quarter of the U.S. Borrower set forth below to be greater than the ratio
set forth below opposite such period:
FISCAL YEAR MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31
----------- --------- --------- ------------ -----------
2004 N/A N/A N/A 6.50:1:00
2005 6.50:1:00 6.50:1:00 6.50:1:00 6.35:1:00
2006 6.25:1:00 6.25:1:00 6.25:1:00 6.10:1:00
2007 6.10:1:00 6.10:1:00 6.10:1:00 5.85:1:00
2008 5.85:1:00 5.60:1:00 5.60:1:00 5.25:1:00
2009 5.25:1:00 5.25:1:00 5.00:1:00 5.00:1:00
2010 5.00:1:00 5.00:1:00 5.00:1:00 4.75:1:00
2011 4.50:1:00 4.50:1:00 N/A N/A
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as
of the end of any fiscal quarter of the Borrower as set forth below to be less
than the ratio set forth below opposite such fiscal quarter:
FISCAL YEAR MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31
----------- --------- --------- ------------ -----------
2004 N/A N/A N/A 1.75:1:00
2005 1.75:1:00 1.75:1:00 1.75:1:00 1.75:1:00
2006 1.85:1:00 1.85:1:00 1.95:1:00 1.95:1:00
2007 2.00:1:00 2.00:1:00 2.10:1:00 2.10:1:00
2008 2.20:1:00 2.20:1:00 2.20:1:00 2.20:1:00
2009 2.30:1:00 2.30:1:00 2.30:1:00 2.30:1:00
2010 2.30:1:00 2.30:1:00 2.30:1:00 2.30:1:00
2011 2.30:1:00 2.30:1:00 N/A N/A
(c) Limitation on Capital Expenditures. Permit the aggregate
amount of Capital Expenditures made in any period set forth below to exceed the
amount set forth opposite such period below:
TEST PERIOD AMOUNT
----------------------------------------------- ------------
Closing Date - December 31, 2004 $22,000,000
January 1, 2005 - December 31, 2005 $40,000,000
January 1, 2006 - December 31, 2006 $45,000,000
January 1, 2007 - December 31, 2007 $45,000,000
January 1, 2008 - December 31, 2008 $45,000,000
January 1, 2009 - December 31, 2009 $50,000,000
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TEST PERIOD AMOUNT
----------------------------------------------- ------------
January 1, 2010 - December 31, 2010 $50,000,000
January 1, 2011 - August 27, 2011 $33,333,333
; provided, however, that (x) if the aggregate amount of Capital Expenditures
made in any test period set forth above shall be less than the maximum amount of
Capital Expenditures permitted under this Section 7.11(c) for such test period
(after giving effect to any carryover), then an amount of such shortfall not
exceeding 50% of such maximum amount (before giving effect to any carryover) may
be added to the amount of Capital Expenditures permitted under this Section
7.11(c) for the immediately succeeding (but not any other) test period and (y)
in determining whether any amount is available for carryover, the amount
expended in any fiscal year shall first be deemed to be from the amount
allocated to carryover for such fiscal year.
7.12 Amendments of Organization Documents, Etc. Amend any of its
Organization Documents, the Sponsor Management Agreement or the documentation
governing the Equity Contribution in a manner materially adverse to the
Administrative Agents or the Lenders.
7.13 Accounting Changes. Make any change in the periods covered by
the U.S. Borrower's fiscal year.
7.14 Prepayments, Etc. of Indebtedness. (a) Prepay, redeem,
purchase, defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner any of the Senior Subordinated Notes, Existing Notes, Indebtedness
incurred pursuant to Section 7.03(b)(ix)(B) or Section 7.03(c)(v) any Permitted
Subordinated Indebtedness and any Permitted Holdco Debt (collectively, "JUNIOR
FINANCING") or make any payment in violation of any subordination terms of any
Junior Financing Documentation, except so long as no Default shall have occurred
and is continuing or would result therefrom (i) the prepayment, redemption,
purchase or defeasance thereof with (A) the Net Cash Proceeds of any Specified
Issuance Proceeds Not Otherwise Applied or (B) amounts available to make
Restricted Payments pursuant to Section 7.06 (d)(ii)(B) or (g), (ii) the
conversion of any Junior Financing to Equity Interests (other than Disqualified
Equity Interests), (iii) scheduled mandatory payments of applicable high yield
discount by Holdings on Junior Financing of Holdings on the date that is not
prior to the first scheduled interest payment date thereunder after the fifth
anniversary of the issuance date and (iv) the purchase or redemption of Existing
Notes purchased or called for redemption on the Closing Date in connection with
the Transaction and the repurchase of any Existing Notes tendered in any change
of control offer required as a result of the Transaction or (b) amend, modify or
change in any manner materially adverse to the interests of the Administrative
Agent or the Lenders any term or condition of any Junior Financing
Documentation.
7.15 Amendment of Acquisition Agreement. Amend, modify or
supplement the Acquisition Agreement or waive or otherwise consent to any change
or departure from any of the terms or conditions of the Acquisition Agreement in
any manner materially adverse to the Administrative Agents or the Lenders.
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7.16 Equity Interests of the U.S. Borrower and Subsidiaries. (a)
(i) Permit the U.S. Borrower or any of its Restricted Subsidiaries to own
directly or indirectly less than 80% of the Equity Interests of any of the
Domestic Subsidiaries except as a result of or in connection with a dissolution,
merger, consolidation or Disposition of a Subsidiary permitted by Section 7.04
or 7.05 or an Investment in any Person permitted under Section 7.02; or
(i) Permit the U.S. Borrower or any of its Restricted Subsidiaries
to own directly or indirectly less than 80% of the Equity Interests of any of
the Foreign Subsidiaries which are Restricted Subsidiaries except (A) to qualify
directors where required by applicable Law or to satisfy other requirements of
applicable Law with respect to the ownership of Equity Interests of Foreign
Subsidiaries or (B) as a result of or in connection with a dissolution, merger,
consolidation or disposition of a Subsidiary permitted by Section 7.04 and 7.05
or an Investment in any Person permitted under Section 7.02; or
(b) Create, incur, assume or suffer to exist any Lien on any
Equity Interests of any Borrower (other than Liens pursuant to the Loan
Documents and non-consensual Liens arising solely by operation of law and
customary restrictions in joint venture agreements).
7.17 Holding Company. (a) In the case of Holdings, (i) conduct,
transact or otherwise engage in any business or operations other than those
incidental to its ownership of the Equity Interests of the U.S. Borrower, the
performance of the Loan Documents and any transactions that Holdings is
permitted to enter into or consummate under this Article VII or (ii) incur any
Indebtedness other than Indebtedness permitted pursuant to Section 7.03(c);
(a) Permit the U.S. Borrower to be a Subsidiary that is not wholly
owned by Holdings; or
(b) Except as permitted by Section 7.04, permit any Canadian
Borrower to be a Subsidiary that is not wholly owned (directly or indirectly) by
the U.S. Borrower.
7.18 Designated Senior Debt. Designate any other Indebtedness of
the U.S. Borrower or any of its Restricted Subsidiaries as "Designated Senior
Debt" (or any comparable term) under, and as defined in, the Senior Subordinated
Notes Indenture or any other applicable Junior Financing Documentation.
7.19 Maintenance of Corporate Separateness. Permit any Unrestricted
Subsidiary to (a) fail to satisfy customary corporate formalities, including (i)
the holding of regular board of directors' and shareholders' meetings, (ii) the
maintenance of separate corporate records and (iii) the maintenance of separate
bank accounts in its own name; (b) fail to act solely in its own corporate name
and through its authorized officers and agents; (c) commingle any of its money
or other assets with any money or other assets of any Loan Party; or (d) take
any action, or conduct its affairs in a manner which is reasonably likely to
result in the separate corporate existence of the Loan Parties from the
Unrestricted Subsidiaries to be ignored or the assets and liabilities of any
Unrestricted Subsidiary being substantively consolidated with those of any Loan
Party in any bankruptcy, insolvency proceeding; or permit any Loan Party to make
any payment to any creditor of any Unrestricted Subsidiary or provide any direct
or indirect
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Guarantee for any Indebtedness or other obligations of any Unrestricted
Subsidiary except to the extent permitted by the definition of "Unrestricted
Subsidiary".
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any of the following shall constitute an
Event of Default:
(a) Non-Payment. Any Borrower or any other Loan Party fails to pay
(i) when and as required to be paid herein, any amount of principal of any
Loan or Unreimbursed Amount, or (ii) within five (5) Business Days after
the same becomes due, any interest on any Loan or any other amount payable
hereunder or with respect to any other Loan Document; or
(b) Specific Covenants. Any Borrower fails to perform or observe
any term, covenant or agreement contained in any of Sections 6.03(a), 6.05
(solely with respect to Holdings and the Borrowers) or 6.11 or Article
VII; provided that any Event of Default under Section 7.11 is subject to
cure as contemplated by the last proviso set forth in the definition of
"Consolidated EBITDA"; or
(c) Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in Section 8.01(a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty (30) days after notice
thereof by either Administrative Agent to the U.S. Borrower; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the U.S. Borrower or any other Loan Party herein, in any other Loan
Document, or in any document required to be delivered in connection
herewith or therewith shall be incorrect or misleading in any material
respect when made or deemed made; or
(e) Cross-Default. Any Loan Party or any Restricted Subsidiary (A)
fails to make any payment beyond the applicable grace period with respect
thereto, if any (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness (other
than Indebtedness hereunder) having an aggregate principal amount of more
than the Threshold Amount, or (B) fails to observe or perform any other
agreement or condition relating to any such Indebtedness or any other
event occurs, the effect of which default or other event is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness to
become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease
or redeem such Indebtedness to be made, prior to its stated maturity;
provided that this clause (e)(B) shall not apply to Indebtedness secured
by a Lien on any asset which is permitted by Section 7.02 that becomes due
solely as a result of the voluntary sale or transfer of the property or
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assets securing such Indebtedness, to the extent such sale or transfer is
permitted hereunder and under the documents governing such Indebtedness
and the proceeds thereof are applied in accordance with this Agreement and
the terms of such Indebtedness; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding
under any Debtor Relief Law, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of such
Person and the appointment continues undischarged or unstayed for sixty
(60) calendar days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is
instituted without the consent of such Person and continues undismissed or
unstayed for sixty (60) calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any
Subsidiary becomes unable or admits in writing its inability or fails
generally to pay its debts as they become due, or (ii) any writ or warrant
of attachment or execution or similar process is issued or levied against
all or any material part of the property of any such Person and is not
released, vacated or fully bonded within sixty (60) days after its issue
or levy; or
(h) Judgments. There is entered against any Loan Party or any
Restricted Subsidiary a final judgment or order for the payment of money
in an aggregate amount exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer has
been notified of such judgment or order and does not deny coverage) and
there is a period of sixty (60) consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise,
is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension
Plan or Multiemployer Plan, or similar event of noncompliance with respect
to a Foreign Plan, which has resulted or could reasonably be expected to
result in liability of any Loan Party under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) any Loan Party or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable
grace period, installment payments with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any provision of any Loan
Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or thereunder (including as a
result of a transaction permitted under Section 7.04 or 7.05) or
satisfaction in full of all the Obligations, ceases to be in full force
and effect; or any Loan Party contests in writing the validity or
enforceability of any provision of any Loan Document; or any Loan Party
denies that it has any or further
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liability or obligation under any Loan Document (other than as a result of
repayment in full of the Obligations and termination of the Aggregate
Commitments), or purports to revoke or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control; or
(l) Collateral Document. Any Collateral Document after delivery
thereof pursuant to Section 4.01 or 6.12 shall for any reason (other than
pursuant to the terms thereof including as a result of a transaction
permitted under Section 7.04 or 7.05) cease to, or shall be asserted in
writing by any Loan Party not to, create a valid and perfected first
priority lien on and security interest in the Collateral covered thereby,
subject to Liens permitted under Section 7.01 (except to the extent that
any such loss of perfection or priority results from the failure of an
Administrative Agent to make filings, renewals and continuations (or other
equivalent filings) which the U.S. Borrower has indicated in the
Perfection Certificate or pursuant to Section 6.02(g) are required to be
made or the failure of an Administrative Agent to maintain possession of
certificates actually delivered to it representing securities pledged
under the Collateral Documents (it being understood that, if requested by
an Administrative Agent, the U.S. Borrower shall use reasonable efforts to
replace any such lost certificate)); or
(m) Junior Financing Documentation. (i) Any of the Obligations of
the Loan Parties under the Loan Documents for any reason shall cease to be
"Designated Senior Debt" (or any comparable term) or "Senior Debt" (or any
comparable term) under, and as defined in, the Senior Subordinated Notes
Indenture and any other applicable Junior Financing Documentation or (ii)
the subordination provisions set forth in the Senior Subordinated Notes
Indenture (or comparable provisions in any other Junior Financing
Documentation) shall, in whole or in part, cease to be effective or cease
to be legally valid, binding and enforceable against the holders of the
Senior Subordinated Notes or any other Junior Financing, if applicable.
Solely for the purpose of determining whether a Default has occurred
under clause (f) or (g) of this Section 8.01, any reference in any such clause
to any Subsidiary or Loan Party shall be deemed not to include any Subsidiary
affected by any event or circumstances referred to in any such clause that did
not, as of the last day of the most recent completed fiscal quarter of the U.S.
Borrower, in the case of any single Subsidiary, have assets with a value in
excess of 5% of the Consolidated Assets of the U.S. Borrower and its
Subsidiaries or did not, as of the four quarter period ending on the last day of
such fiscal quarter, have revenues exceeding 5% of the Consolidated Revenues of
the U.S. Borrower and its Subsidiaries (it being agreed that each Subsidiary
affected by any event or circumstance referred to in any such clause shall be
considered to be a single consolidated Subsidiary for purposes of determining
whether the condition specified above is satisfied).
8.02 Remedies upon Event of Default. If any Event of Default occurs
and is continuing, the Administrative Agents may, and shall at the request of
the Required Lenders, take any or all of the following actions:
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(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuers to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) 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 Borrowers;
(c) require that the applicable Borrowers Cash Collateralize the
applicable L/C Obligations and Canadian BAs (in an amount equal to the
then Outstanding Amount thereof) of such Borrowers; and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable Law;
provided, however, that upon the occurrence of an Event of Default of the type
referred to in Section 8.01(f) with respect to Holdings or any Borrower, the
obligation of each Lender to make Loans and any obligation of any L/C Issuer to
make L/C Credit Extensions shall automatically terminate, the unpaid principal
amount of all outstanding Loans and all interest and other amounts as aforesaid
shall automatically become due and payable, and the obligation of the Borrowers
to Cash Collateralize the L/C Obligations and Canadian BAs as aforesaid shall
automatically become effective, in each case without further act of any
Administrative Agent or any Lender.
8.03 Application of Funds. (a) After the exercise of remedies
provided for in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02),
subject to Section 10.20 any amounts received on account of the Obligations from
any U.S. Loan Party shall be applied by the U.S. Administrative Agent in the
following order:
First, to payment of that portion of the Obligations constituting
fees, indemnities, expenses and other amounts (other than principal and
interest, including Attorney Costs payable under Section 10.04 and amounts
payable under Article III) payable to the Administrative Agents in their
capacities as such or to the Administrative Agents in their capacities as
Canadian fonde de pouvoir and Canadian Custodian and U.S. fonde de pouvoir
and U.S. Custodian, respectively;
Second, to payment of that portion of the Obligations constituting
fees, indemnities and other amounts (other than principal and interest)
payable to the Lenders (including Attorney Costs payable under Section
10.05 and amounts payable under Article III), ratably among them in
proportion to the amounts described in this clause Second payable to them;
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Third, to payment of that portion of the Obligations constituting
accrued and unpaid interest on the Loans and L/C Borrowings, ratably among
the Lenders in proportion to the respective amounts described in this
clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting
unpaid principal of the Loans and L/C Borrowings and the termination value
under Secured Hedge Agreements and, to the extent remaining unpaid after
application pursuant to this clause, the Cash Management Obligations,
ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth held by them;
Fifth, to the Administrative Agent for the account of the L/C
Issuers, to Cash Collateralize that portion of the applicable L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit
issued under the applicable Tranche of the Revolving Credit Facility;
Sixth, to the payment of all other Obligations of the Loan Parties
owing under or in respect of the Loan Documents that are due and payable
to the Administrative Agents and the other Secured Parties on such date,
ratably based upon the respective aggregate amounts of all such
Obligations owing to the Administrative Agent and the other Secured
Parties on such date; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by
Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
(a) After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized
as set forth in the proviso to Section 8.02), subject to Section 10.20 any
amounts received from the Canadian Loan Parties on account of the Canadian
Obligations shall be applied by the Canadian Administrative Agent in the
following order:
First, to payment of that portion of the Canadian Obligations
constituting fees, indemnities, expenses and other amounts (including
Attorney Costs payable under Section 10.04 and amounts payable under
Article III) payable to the Canadian Administrative Agent in its capacity
as such or as Canadian fonde de pouvoir or Canadian Custodian;
Second, to payment of that portion of the Canadian Obligations
constituting fees, indemnities and other amounts (other than principal and
interest) payable to the Canadian Lenders (including Attorney Costs
payable under Section 10.05 and amounts payable
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under Article III), ratably among them in proportion to the amounts
described in this clause Second payable to them;
Third, to payment of that portion of the Canadian Obligations
constituting accrued and unpaid interest on the Loans and L/C Borrowings
in respect of Canadian Letters of Credit, ratably among the Lenders in
proportion to the respective amounts described in this clause Third
payable to them;
Fourth, to payment of that portion of the Canadian Obligations
constituting unpaid principal of the Canadian Loans and L/C Borrowings in
respect of Canadian Letters of Credit, ratably among the Lenders in
proportion to the respective amounts described in this clause Fourth held
by them;
Fifth, to the Canadian Administrative Agent for the account of the
Canadian L/C Issuer, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of Canadian Letters of Credit;
Sixth, to the payment of all other Canadian Obligations of the
Canadian Loan Parties owing under or in respect of the Loan Documents that
are due and payable to the Canadian Administrative Agent and the other
Canadian Secured Parties on such date, ratably based upon the respective
aggregate amounts of all such Obligations owing to the Canadian
Administrative Agent and the other Canadian Secured Parties on such date;
and
Last, the balance, if any, after all of the Canadian Obligations
have been indefeasibly paid in full, to the Canadian Borrowers or as
otherwise required by Law.
Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Canadian Letters of Credit pursuant to clause Fifth above
shall be applied to satisfy drawings under such Canadian Letters of Credit as
they occur. If any amount remains on deposit as Cash Collateral after all
Canadian Letters of Credit have either been fully drawn or expired, such
remaining amount shall be applied to the other Canadian Obligations, if any, in
the order set forth above.
ARTICLE IX
ADMINISTRATIVE AGENT AND OTHER AGENTS
9.01 Appointment and Authorization of Agents. (a) Each Lender
hereby irrevocably appoints, designates and authorizes the Administrative Agents
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 them 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 herein or in
any other Loan Document, (i) no Agent shall have any duties or responsibilities,
except those expressly set forth herein, nor shall any Agent have or be deemed
to have any fiduciary relationship with any Lender or participant, 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 any Agent, (ii) no Agent shall have any duty to take any
discretionary
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action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated by the Loan Documents that such Agent is required
to exercise in writing by the Required Lenders or the Requisite Class Lenders
(or such greater number of Lenders as may be expressly required hereby in any
instance), (iii) except as expressly set forth in the Loan Documents, no Agent
shall have any duty to disclose or shall be liable for the failure to disclose,
any information relating to any Loan Party or any of its Subsidiaries that is
communicated to or obtained by the bank serving as such Agent or any of its
Affiliates in any capacity and (iv) no Agent shall be liable to any Secured
Party for any action taken or not taken by it with the consent or at the request
of the Required Lenders or the Requisite Class Lenders (or such greater number
of Lenders as may be expressly required hereby in any instance) or in the
absence of its own gross negligence or willful misconduct. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to any 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.
(c) The L/C Issuers shall act on behalf of the applicable Lenders
with respect to any Letters of Credit issued by them and the documents
associated therewith, and each L/C Issuer shall have all of the benefits and
immunities (i) provided to the Agents in this Article IX with respect to any
acts taken or omissions suffered by such L/C Issuer in connection with Letters
of Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term "Agent" as used in this Article IX and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to such L/C
Issuer.
(c) The U.S. Administrative Agent with respect to the U.S.
Collateral and the Canadian Administrative Agent with respect to the Canadian
Collateral shall also act as the "collateral agent" under the Loan Documents,
and each of the Lenders (in its capacities as a Lender, Swing Line Lender (if
applicable), L/C Issuer (if applicable) and a potential Hedge Bank) hereby
irrevocably appoints and authorizes each Administrative Agent to act as the
agent of such Lender for purposes of acquiring, holding and enforcing any and
all Liens on Collateral granted by any of the Loan Parties to secure any of the
Secured Obligations, together with such powers and discretion as are reasonably
incidental thereto (and agrees for the benefit of the Agents and the Lenders
(but not for the benefit of the Loan Parties) that it will not attempt to
enforce the Liens on the Collateral without the consent of the applicable
Administrative Agent). In this connection, the applicable Administrative Agent,
as "collateral agent" (and any co-agents, sub-agents and attorneys-in-fact
appointed by such Administrative Agent pursuant to Section 9.02 for purposes of
holding or enforcing any Lien on the Collateral (or any portion thereof) granted
under the Collateral Documents, or for exercising any rights and remedies
thereunder at the direction of such Administrative Agent), shall be entitled to
the benefits of all provisions of this Article IX (including, without
limitation, Section 9.07, as though such co-agents, sub-agents and
attorneys-in-fact were the "collateral agent" under the Loan Documents) as if
set forth in full herein with respect thereto.
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(d) Without prejudice to the foregoing, each Canadian Lender, for
itself and on behalf of each of its Affiliates, hereby irrevocably appoints and
authorizes the Canadian Administrative Agent (and any successor acting as the
Canadian Administrative Agent) to act as the person holding the power of
attorney (in such capacity, the "CANADIAN FONDE DE POUVOIR") of each Canadian
Lender and each Canadian Secured Party as contemplated under Article 2692 of the
Civil Code of Quebec, and to enter into, to take and to hold on their behalf,
and for their benefit, each hypothec granted by the Canadian Borrower or any
Canadian Guarantor under the Civil Code of Quebec (a "CANADIAN BORROWER
HYPOTHEC"), and to exercise such powers and duties which are conferred upon the
Canadian fonde de pouvoir under each Canadian Borrower Hypothec. Moreover,
without prejudice to such appointment and authorization to act as the Person
holding the power of attorney as aforesaid, each Canadian Lender, for itself and
on behalf of each of its Affiliates referred to above, hereby irrevocably
appoints and authorizes the Canadian Administrative Agent (and any successor
acting as the Canadian Administrative Agent) (in such capacity, the "CANADIAN
CUSTODIAN") to act as agent and custodian for and on behalf of the Canadian
Lenders and other such Canadian Secured Parties to hold and to be the sole
registered holder of any debenture or bond which may be issued under any
Canadian Borrower Hypothec, the whole notwithstanding Section 32 of the Act
Respecting the Special Powers of Legal Persons (Quebec) or any other applicable
Law. In this respect, (i) (as specified in Section 2.11) records shall be kept
indicating the names and addresses of, and the pro rata portion of the
obligations and indebtedness secured by any pledge of any such debenture or bond
and owing to, each Canadian Lender and other Canadian Secured Party, and (ii)
each Canadian Lender and other such Canadian Secured Party will be entitled to
the benefits of any collateral covered by any Canadian Borrower Hypothec and
will participate in the proceeds of realization of any such collateral, the
whole in accordance with the terms hereof.
Each of the Canadian fonde de pouvoir and the Canadian Custodian
shall (a) exercise, in accordance with the terms hereof, all rights and remedies
given to the Canadian fonde de pouvoir and the Canadian Custodian (as
applicable) with respect to the collateral under any Canadian Borrower Hypothec,
any debenture or bond or pledge thereof relating to any Canadian Borrower
Hypothec, applicable Laws or otherwise, (b) benefit from and be subject to all
provisions hereof with respect to the Administrative Agents mutatis mutandis,
including, without limitation, all such provisions with respect to the liability
or responsibility to and indemnification by the Lenders, and (c) be entitled to
delegate from time to time any of its powers or duties under any Canadian
Borrower Hypothec, any debenture or bond or pledge thereof relating to any
Canadian Borrower Hypothec, applicable Laws or otherwise and on such terms and
conditions as it may determine from time to time. Any Person who becomes a
Canadian Lender or a Canadian Secured Party, for itself and on behalf of its
Affiliates referred to above, shall be deemed to have consented to and
confirmed: (i) the Canadian fonde de pouvoir as the Person holding the power of
attorney as aforesaid, and to have ratified, as of the date it becomes a
Canadian Lender or a Canadian Secured Party, all actions taken by the Canadian
fonde de pouvoir as the Person holding the power of attorney as aforesaid; and
(ii) the Canadian Custodian as the agent and custodian as aforesaid and to have
ratified, as the date it becomes a Canadian Lender or a Canadian Secured Party,
all actions taken by the Canadian Custodian in such capacity.
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The Canadian Administrative Agent accepts the foregoing appointments
as Canadian fonde de pouvoir and Canadian Custodian and agrees to act in such
capacities.
(e) Without prejudice to the foregoing, each Lender, for itself
and on behalf of each of its Affiliates, hereby irrevocably appoints and
authorizes the U.S. Administrative Agent (and any successor acting as the U.S.
Administrative Agent) to act as the Person holding the power of attorney (in
such capacity, the "U.S. FONDE DE POUVOIR") of each Lender and each Secured
Party as contemplated under Article 2692 of the Civil Code of Quebec, and to
enter into, to take and to hold on their behalf, and for their benefit, each
hypothec granted by Commercial Environmental Systems Group, Inc. under the Civil
Code of Quebec (a "CES HYPOTHEC"), and to exercise such powers and duties which
are conferred upon the U.S. fonde de pouvoir under each CES Hypothec. Moreover,
without prejudice to such appointment and authorization to act as the Person
holding the power of attorney as aforesaid, each Lender, for itself and on
behalf of each of its Affiliates referred to above, hereby irrevocably appoints
and authorizes the U.S. Administrative Agent (and any successor acting as the
U.S. Administrative Agent) (in such capacity, the "U.S. CUSTODIAN") to act as
agent and custodian for and on behalf of the Lenders and other such Secured
Parties to hold and to be the sole registered holder of any debenture or bond
which may be issued under any CES Hypothec, the whole notwithstanding Section 32
of the Act Respecting the Special Powers of Legal Persons (Quebec) or any other
applicable Law. In this respect, (i) (as specified in Section 2.11) records
shall be kept indicating the names and addresses of, and the pro rata portion of
the obligations and indebtedness secured by any pledge of any such debenture or
bond and owing to each Lender and other Secured Party, and (ii) each Lender and
other such Secured Party will be entitled to the benefits of any collateral
covered by any CES Hypothec and will participate in the proceeds of realization
of any such collateral, the whole in accordance with the terms hereof.
Each of the U.S. fonde de pouvoir and the U.S. Custodian shall (a)
exercise, in accordance with the terms hereof, all rights and remedies given to
the U.S. fonde de pouvoir and the U.S. Custodian (as applicable) with respect to
the collateral under any CES Hypothec, any debenture or bond or pledge thereof
relating to any CES Hypothec, applicable Laws or otherwise, (b) benefit from and
be subject to all provisions hereof with respect to the Administrative Agents
mutatis mutandis, including, without limitation, all such provisions with
respect to the liability or responsibility to and indemnification by the
Lenders, and (c) be entitled to delegate from time to time any of its powers or
duties under any CES Hypothec, any debenture or bond or pledge thereof relating
to any CES Hypothec, applicable Laws or otherwise and on such terms and
conditions as it may determine from time to time. Any Person who becomes a
Lender or a Secured Party, for itself and on behalf of its Affiliates referred
to above, shall be deemed to have consented to and confirmed: (i) the U.S. fonde
de pouvoir as the Person holding the power of attorney as aforesaid, and to have
ratified, as of the date it becomes a Lender or a Secured Party, all actions
taken by the U.S. fonde de pouvoir as the Person holding the power of attorney
as aforesaid; and (ii) the U.S. Custodian as the agent and custodian as
aforesaid and to have ratified, as the date it becomes a Lender or a Secured
Party, all actions taken by the U.S. Custodian in such capacity.
The U.S. Administrative Agent accepts the foregoing appointments as
U.S. fonde de pouvoir and U.S. Custodian and agrees to act in such capacities.
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9.02 Delegation of Duties. Each Administrative Agent may execute
any of its duties under this Agreement or any other Loan Document (including for
purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents or of exercising any rights and
remedies thereunder) by or through agents (including appointing CIBC Mellon
Trust Company or any other Person to hold the documents representing the bonds
referred to in Sections 9.01(d) and (e), in which event CIBC Mellon Trust
Company or such other Person shall be deemed to be an Agent-Related Person for
the purposes of Sections 9.03, 9.06, 9.07 and 10.05 hereof), employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. No
Administrative Agent shall be responsible for the negligence or misconduct of
any agent or attorney-in-fact that they select in the absence of gross
negligence or willful misconduct.
9.03 Liability of Agents. No Agent-Related Person shall (a) be
liable 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
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by an
Administrative 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 the perfection or
priority of any Lien or security interest created or purported to be created
under the Collateral Documents, or for any failure of any Loan Party 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
or participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.
9.04 Reliance by Agents. (a) Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
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 any Loan Party), independent accountants and other experts selected by such
Agent. Except for their express obligations to the Loan Parties under the Loan
Documents, each Agent shall be fully justified in failing or refusing to take
any action under any 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 (or such greater number of Lenders as may be expressly required
hereby in any
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instance) and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(a) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
9.05 Notice of Default. No Administrative Agent shall be deemed to
have knowledge or notice of the occurrence of any Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to such Administrative Agent for the account of the Lenders, unless such
Administrative Agent shall have received written notice from a Lender or the
U.S. Borrower referring to this Agreement, describing such Default and stating
that such notice is a "notice of default." The applicable Administrative Agent
will notify the Lenders of its receipt of any such notice. The Administrative
Agents shall take such action with respect to any Event of Default as may be
directed by the Required Lenders in accordance with Article VIII; provided,
however, that unless and until an Administrative Agent has received any such
direction, either Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable or in the best interest of the Lenders.
9.06 Credit Decision; Disclosure of Information by Agents. Each
Lender acknowledges that no Agent-Related Person or any other Lender has made
any representation or warranty to it, and that no act by any Agent hereafter
taken, including any consent to and acceptance of any assignment or review of
the affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person or any
other Lender to any Lender as to any matter, including whether Agent-Related
Persons or other Lenders have disclosed material information in their
possession. Each Lender represents to each Agent that it has, independently and
without reliance upon any Agent-Related Person or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries, and all applicable bank or other 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 and the other
Loan Parties hereunder. Each Lender also represents that it will, independently
and without reliance upon any Agent-Related Person or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by any Agent herein, such Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and
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other condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.
9.07 Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Loan Party and without limiting the obligation of any Loan Party to do so), pro
rata, and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lender shall
be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities to the extent determined in a final, nonappealable
judgment by a court of competent jurisdiction to have resulted from such
Agent-Related Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Required
Lenders shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section 9.07; provided, further, that to the extent an L/C
Issuer is entitled to indemnification under this Section 9.07 solely in its
capacity and role as L/C Issuer, only the Revolving Credit Lenders holding
Commitments under the Tranche under which such L/C Issuer is acting in such
capacity shall be required to indemnify such L/C Issuer in accordance with this
Section 9.07. In the case of any investigation, litigation or proceeding giving
rise to any Indemnified Liabilities, this Section 9.07 applies whether any such
investigation, litigation or proceeding is brought by any Lender or any other
Person. Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agents upon demand for their ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the Administrative
Agents 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 either Administrative
Agent is not reimbursed for such expenses by or on behalf of the Borrowers. The
undertaking in this Section 9.07 shall survive termination of the Aggregate
Commitments, the payment of all other Obligations and the resignation of either
Administrative Agent.
9.08 Agents in Their Individual Capacities. UBS AG, Stamford Branch
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 each of the Loan Parties and their respective Affiliates as though UBS AG,
Stamford Branch were not the U.S. Administrative Agent or the Canadian
Administrative Agent hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, UBS AG, Stamford
Branch or its Affiliates may receive information regarding any Loan Party or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge that
the Administrative Agents shall be under no obligation to provide such
information to them. With respect to its Loans, UBS AG, Stamford Branch and its
Affiliates shall have the same rights and powers under this Agreement as any
other Lender and may exercise such rights and powers as though it were not the
U.S. Administrative Agent and the Canadian Administrative Agent, and the terms
"Lender" and "Lenders" include UBS AG, Stamford Branch in its individual
capacity.
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9.09 Successor Agents. Either Administrative Agent may resign as an
Administrative Agent upon thirty (30) days' notice to the Lenders. If an
Administrative Agent resigns under this Agreement, the Required Lenders (or the
Requisite Class Lenders holding Canadian Commitments, with respect to a
resignation by the Canadian Administrative Agent) shall appoint from among the
Lenders a successor agent for such Lenders, which successor agent shall be
consented to by the U.S. Borrower at all times other than during the existence
of an Event of Default under Section 8.01(a) or (f) (which consent of the U.S.
Borrower shall not be unreasonably withheld or delayed). If no successor agent
is appointed prior to the effective date of the resignation of an Administrative
Agent, such Administrative Agent may appoint, after consulting with the Lenders
and the U.S. Borrower, a successor agent from among the applicable Lenders. Upon
the acceptance of its appointment as successor agent hereunder, the Person
acting as such successor agent shall succeed to all the rights, powers and
duties of the retiring applicable Administrative Agent and the term "U.S.
Administrative Agent," or "Canadian Administrative Agent," as the case may be
shall mean such successor administrative agent and/or supplemental
administrative agent, as the case may be, and the applicable retiring
Administrative Agent's appointment, powers and duties as the applicable
Administrative Agent shall be terminated. After the applicable retiring
Administrative Agent's resignation hereunder as the applicable Administrative
Agent, the provisions of this Article IX and Sections 10.04 and 10.05 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the applicable Administrative Agent under this Agreement. If no successor
agent has accepted appointment as the applicable Administrative Agent by the
date which is thirty (30) days following the applicable retiring Administrative
Agent's notice of resignation, such retiring Administrative Agent's resignation
shall nevertheless thereupon become effective and the Lenders shall perform all
of the duties of such Administrative Agent hereunder until such time, if any, as
the Required Lenders (or the Requisite Class Lenders holding Canadian
Commitments, with respect to a resignation by the Canadian Administrative Agent)
appoint a successor agent as provided for above. Upon the acceptance of any
appointment as an Administrative Agent hereunder by a successor every successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges, and duties of such retiring
Administrative Agent, and such retiring Administrative Agent shall be discharged
from its duties and obligations under the Loan Documents. After an
Administrative Agent's resignation hereunder as an Administrative Agent, the
provisions of this Article IX shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
9.10 Administrative Agents May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agents (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether an Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Obligations that are owing and unpaid and to
file such other documents as may be necessary or advisable
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in order to have the claims of the Lenders and the Administrative Agents
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Administrative Agents
and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agents under Sections 2.03(i) and (j), 2.09
and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agents and, in the event
that the Administrative Agents shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agents any amount due for
the reasonable compensation, expenses, disbursements and advances of the Agents
and their respective agents and counsel, and any other amounts due the
Administrative Agents under Sections 2.09 and 10.04.
Nothing contained herein shall be deemed to authorize the
Administrative Agents to authorize or consent to or accept or adopt on behalf of
any Lender any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agents to vote in respect of the claim of any Lender in any such
proceeding.
9.11 Collateral and Guaranty Matters. The Lenders irrevocably
authorize the Administrative Agents, at their option and in their discretion,
(a) to release any Lien on any property granted to or held by such
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
(x) obligations under Secured Hedge Agreements, (y) Cash Management
Obligations not yet due and payable and (z)contingent indemnification
obligations not yet accrued and payable) and the expiration or termination
of all Letters of Credit, (ii) that is transferred or to be transferred as
part of or in connection with any Disposition permitted hereunder or under
any other Loan Document (other than to a Loan Party), (iii) subject to
Section 10.01, if approved, authorized or ratified in writing by the
Required Lenders or (iv) owned by a Guarantor upon release of such
Guarantor from its obligations under its Guaranty pursuant to clause (c)
below;
(b) to subordinate any Lien on any property granted to or held by
the applicable Administrative Agent under any Loan Document to the holder
of any Lien on such property that is permitted by Section 7.01(i); and
(c) to release any Guarantor from its obligations under the
Guaranty if such Person ceases to be a Restricted Subsidiary as a result
of a transaction permitted hereunder.
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Upon request by either Administrative Agent at any time, the
Required Lenders will confirm in writing such Administrative Agent's authority
to release its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty pursuant to this Section
9.11. In each case as specified in this Section 9.11, the applicable
Administrative Agent will, at the U.S. Borrower's expense, execute and deliver
to the applicable Loan Party such documents as such Loan Party may reasonably
request to evidence the release of such item of Collateral from the assignment
and security interest granted under the Collateral Documents, or to release such
Guarantor from its obligations under the Guaranty, in each case in accordance
with the terms of the Loan Documents and this Section 9.11.
9.12 Other Agents; Arrangers and Managers. None of the Lenders or
other Persons identified on the facing page or signature pages of this Agreement
as a "syndication agent", "documentation agent", "co-agent", "co-book manager"
or "co-arranger" shall have any obligation, liability, responsibility or duty
under this Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders or other Persons so identified shall
have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement
or in taking or not taking action hereunder.
9.13 Appointment of Supplemental Administrative Agents. (a) It is
the purpose of this Agreement and the other Loan Documents that there shall be
no violation of any Law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case either Administrative Agent
deems that by reason of any present or future Law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, either Administrative Agent is hereby
authorized to appoint an additional individual or institution selected by such
Administrative Agent in its sole discretion as a separate trustee, co-trustee,
administrative agent, collateral agent, administrative sub-agent or
administrative co-agent (any such additional individual or institution being
referred to herein individually as a "U.S. SUPPLEMENTAL ADMINISTRATIVE AGENT" or
the "CANADIAN SUPPLEMENTAL ADMINISTRATIVE AGENT," as applicable, and
collectively as "SUPPLEMENTAL ADMINISTRATIVE AGENTS").
(b) In the event that either Administrative Agent appoints a
Supplemental Administrative Agent with respect to any Collateral, (i) each and
every right, power, privilege or duty expressed or intended by this Agreement or
any of the other Loan Documents to be exercised by or vested in or conveyed to
such Administrative Agent with respect to such Collateral shall be exercisable
by and vest in such Supplemental Administrative Agent to the extent, and only to
the extent, necessary to enable such Supplemental Administrative Agent to
exercise such rights, powers and privileges with respect to such Collateral and
to perform such duties with respect to such Collateral, and every covenant and
obligation contained in the Loan Documents and necessary or related to the
exercise or performance thereof by such Supplemental Administrative Agent shall
run to and be enforceable by either such
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Administrative Agent or such Supplemental Administrative Agent, and (ii) the
provisions of this Article IX and of Section 9.07 (obligating the U.S. Borrower
to pay the Administrative Agents' expenses and to indemnify the Administrative
Agents) that refer to such Administrative Agent shall inure to the benefit of
such Supplemental Administrative Agent and all references therein to such
Administrative Agent shall be deemed to be references to such Administrative
Agent and/or such Supplemental Administrative Agent, as the context may require.
(c) Should any instrument in writing from the U.S. Borrower,
Holdings or any other Loan Party be required by any Supplemental Administrative
Agent so appointed by an Administrative Agent for more fully and certainly
vesting in and confirming to him or it such rights, powers, privileges and
duties, the U.S. Borrower or Holdings, as applicable, shall, or shall cause such
Loan Party to, execute, acknowledge and deliver any and all such instruments
promptly upon request by such Administrative Agent. In case any Supplemental
Administrative Agent, or a successor thereto, shall die, become incapable of
acting, resign or be removed, all the rights, powers, privileges and duties of
such Supplemental Administrative Agent, to the extent permitted by Law, shall
vest in and be exercised by such Administrative Agent until the appointment of a
new Supplemental Administrative Agent.
ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Borrowers or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrowers or the applicable Loan
Party, as the case may be, and each 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 amendment, waiver or consent shall:
(a) extend or increase the Commitment of any Lender without the
written consent of each Lender directly affected thereby (it being
understood that a waiver of any condition precedent set forth in Section
4.02 or the waiver of any Event of Default or mandatory prepayment or
mandatory reduction of the Commitments pursuant to Section 2.05 shall not
constitute an extension or increase of any Commitment of any Lender);
(b) postpone any date scheduled for any payment of principal,
interest or fees under Section 2.07, 2.08 or 2.09 without the written
consent of each Lender directly affected thereby, it being understood that
the waiver of any mandatory prepayment of the Term Loans pursuant to
Section 2.05 shall not constitute a postponement of any date scheduled for
the payment of principal or interest;
(c) reduce or forgive the principal of, or the rate of interest
specified herein on, any Loan or L/C Borrowing, or (subject to clause
(iii) of the second proviso to this Section 10.01) any fees or other
amounts payable hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby, it being
understood that any change to the definition of Leverage Ratio or in the
component definitions thereof shall not constitute a reduction in the
rate; provided, however, that only the consent of the Required Lenders
shall be necessary to amend the definition of
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"Default Rate" or to waive any obligation of a Borrower to pay interest at
the Default Rate;
(d) change the order of application of any reduction in the
Commitments or any prepayment of Loans between the Facilities from the
application thereof set forth in the applicable provisions of Section
2.05(b) or 2.06(b), respectively, in any manner that materially and
adversely affects the Lenders under such Facilities without the written
consent of the Requisite Class Lenders of each affected Tranche;
(e) change any provision of this Section 10.01 or the definition
of "Required Lenders" without the written consent of each Lender or change
any other provision of any Loan Document specifying the number or
percentage of Lenders (or the Lenders under any Tranche, as the case may
be) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent
of such specified number or percentage of the Lenders (or the Lenders
under such Tranche, as the case may be);
(f) release all or substantially all of the Collateral in any
transaction or series of related transactions, without the written consent
of each Lender;
(g) other than in connection with a transaction permitted under
Section 7.04 or 7.05, release all or substantially all of the value of the
Guaranty, without the written consent of each Lender; or
(h) change the application of proceeds provisions of Section 8.03,
the pro rata treatment provisions of Section 2.12, or the sharing of
payment provisions of Section 2.13 without the consent of each Lender
adversely affected thereby;
and provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the applicable L/C Issuer in addition to the Lenders
required above, affect the rights or duties of such L/C Issuer under this
Agreement or any Letter of Credit Application 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 Swing Line Lender in addition to the
Lenders required above, affect the rights or duties of such Swing Line Lender
under this Agreement; (iii) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent to be effected thereby in
addition to the Lenders required above, affect the rights or duties of, or any
fees or other amounts payable to, such Administrative Agent under this Agreement
or any other Loan Document; (iv) Section 10.07(g) may not be amended, waived or
otherwise modified without the consent of each Granting Lender all or any part
of whose Loans are being funded by an SPC at the time of such amendment, waiver
or other modification; (v) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto;
(vi) no amendment may be made to the Loan Documents prior to the completion of
syndication of the Commitments and the Loans (as determined by the Arrangers)
without the prior consent of UBS AG, Stamford Branch and CSFB and (vii) the
definition of "Super Majority Lenders" may not be amended without the written
consent of the Super Majority Lenders. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except
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that the Commitment of such Lender may not be increased or extended without the
consent of such Lender (it being understood that any Commitments or Loans held
or deemed held by any Defaulting Lender shall be excluded for a vote of the
Lenders hereunder requiring any consent of the Lenders).
Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agents, Holdings and the Borrowers (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the Term Loans and the applicable Revolving Credit
Loans and the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination of
the Required Lenders.
In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agents, Holdings, the
Borrowers and the Lenders providing the relevant Replacement Term Loans (as
defined below) to permit the refinancing of all outstanding Term Loans
("REFINANCED TERM LOANS") with a replacement term loan tranche hereunder
("REPLACEMENT TERM LOANS"); provided that (a) the aggregate principal amount of
such Replacement Term Loans shall not exceed the aggregate principal amount of
such Refinanced Term Loans, (b) the Applicable Rate for such Replacement Term
Loans shall not be higher than the Applicable Rate for such Refinanced Term
Loans, (c) the Weighted Average Life to Maturity of such Replacement Term Loans
shall not be shorter than the Weighted Average Life to Maturity of such
Refinanced Term Loans at the time of such refinancing (except to the extent of
nominal amortization for periods where amortization has been eliminated as a
result of prepayment of the Term Loans) and (d) all other terms applicable to
such Replacement Term Loans shall be substantially identical to, or less
favorable to the Lenders providing such Replacement Term Loans than, those
applicable to such Refinanced Term Loans, except to the extent necessary to
provide for covenants and other terms applicable to any period after the latest
final maturity of the Term Loans in effect immediately prior to such
refinancing.
Notwithstanding anything to the contrary contained in Section 10.01,
in the event that the Borrowers request that this Agreement be modified or
amended in a manner that would require the unanimous consent of all of the
Lenders and such modification or amendment is agreed to by the Super Majority
Lenders (as hereinafter defined), then with the consent of the Borrowers and the
Super Majority Lenders, the Borrowers and the Super Majority Lenders shall be
permitted to amend the Agreement without the consent of the Lender or Lenders
that did not agree to the modification or amendment requested by the Borrowers
(such Lender or Lenders, collectively the "MINORITY LENDERS") to provide for (w)
the termination of the Commitment of each of the Minority Lenders, (x) the
addition to this Agreement of one or more other financial institutions (each of
which shall be an Eligible Assignee and shall consent to the requested
modification or amendment), or an increase in the Commitment of one or more of
the Super Majority Lenders (with the written consent thereof), so that the total
Commitment after giving effect to such amendment shall be in the same amount as
the total Commitment immediately before giving effect to such amendment
(provided that in the case of such an assignment to an Eligible Assignee, such
assignee shall pay the processing and recordation fee referred to in
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Section 10.07(b)), (y) if any Loans are outstanding at the time of such
amendment, the making of such additional Loans by such new financial
institutions or Super Majority Lender or Lenders, as the case may be, as may be
necessary to repay in full, at par, the outstanding Loans of and interest and
fees payable to the Minority Lenders immediately before giving effect to such
amendment and (z) such other modifications to this Agreement as may be
appropriate to effect the foregoing clauses (w), (x) and (y). As used herein,
the term "SUPER MAJORITY LENDERS" shall mean, as of any date of determination,
Lenders having more than 66 2/3% of the sum of the (a) Total Outstandings (with
the aggregate amount of each Lender's risk participation and funded
participation in L/C Obligations and Swing Line Loans (in each case, based on
the U.S. Dollar Equivalent thereof to the extent denominated in Canadian
Dollars) being deemed "held" by such Lender for purposes of this definition);
(b) aggregate unused Term Commitments and (c) aggregate unused Revolving Credit
Commitments; provided that the unused Term Commitment, unused Revolving Credit
Commitment of, and the portion of the Total Outstandings held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Super Majority Lenders.
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder or any other Loan
Document shall be in writing (including by facsimile transmission). All such
written notices shall be mailed, faxed or delivered to the applicable address,
facsimile number or (subject to Section 10.02(c)) electronic mail address, and
all notices and other communications expressly permitted hereunder to be given
by telephone shall be made to the applicable telephone number, as follows:
(i) if to a Borrower, an Administrative Agent, an L/C Issuer or a
Swing Line Lender, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 10.02 or
to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the
other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by such
party in a notice to the applicable Borrowers, the applicable
Administrative Agent, the applicable L/C Issuer and the applicable Swing
Line Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four (4) Business Days
after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of Section
10.02(c)), when delivered; provided, however, that notices and other
communications to an Administrative Agent, L/C Issuer or Swing Line Lender
pursuant to Article II shall not be effective until actually received by such
Person; provided, further, that failure to deliver courtesy copies of notices
and other communications shall in no event affect the validity or effectiveness
of such notices and other
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communications. In no event shall a voicemail message be effective as a notice,
communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Agents and the Lenders. The Administrative Agent may also
require that any such documents and signatures be confirmed by a manually-signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.
(c) Limited Use of Electronic Mail. Electronic mail and Internet
and intranet websites may be used only to distribute routine communications,
such as financial statements and other information as provided in Section 6.02,
and to distribute Loan Documents for execution by the parties thereto, and may
not be used for any other purpose.
(d) Reliance by Agents and Lenders. The Administrative Agents and
the Lenders shall be entitled to rely and act upon any notices (including
telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given
by or on behalf of the Borrowers even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrowers shall
indemnify each Agent-Related Person and each Lender from all losses, costs,
expenses and liabilities resulting from the reliance by such Person on each
notice purportedly given by or on behalf of the Borrowers in the absence of
gross negligence or willful misconduct. All telephonic notices to an
Administrative Agent may be recorded by such Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 No Waiver; Cumulative Remedies. No failure by any Lender or an
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided, and provided under
each other Loan Document, are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by Law.
10.04 Attorney Costs, Expenses and Taxes. The U.S. Borrower agrees
(a) to pay or reimburse the Agents for all reasonable costs and expenses
incurred in connection with the preparation, negotiation, syndication and
execution of the commitments to provide the Credit Extensions hereunder, this
Agreement and the other Loan Documents, and any actual or proposed amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all Attorney Costs of Xxxxxx Xxxxxx & Xxxxxxx LLP and local
counsel, and (b) to pay or reimburse the Agents and each Lender for all
reasonable costs and expenses incurred in connection with the enforcement of any
rights or remedies under this Agreement or the other Loan Documents
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(including all such costs and expenses incurred during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs of counsel to the Agents. The foregoing costs and expenses shall include
all search, filing, recording, title insurance and appraisal charges and fees
and taxes related thereto and all other expenses relating to the perfection,
preservation or enforcement of the Liens on Collateral, and other out-of-pocket
expenses incurred by any Agent. All amounts due under this Section 10.04 shall
be paid within twenty (20) Business Days after invoiced or demand therefor. The
agreements in this Section 10.04 shall survive the termination of the Aggregate
Commitments and repayment of all other Obligations. If any Loan Party fails to
pay when due any costs, expenses or other amounts payable by it hereunder or
under any Loan Document, such amount may be paid on behalf of such Loan Party by
the Administrative Agent or any Lender, in its sole discretion.
10.05 Indemnification by the Borrowers. Whether or not the
transactions contemplated hereby are consummated, the Borrowers shall indemnify
and hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and, in the case of
any funds, trustees and advisors and attorneys-in-fact (collectively the
"INDEMNITEES") from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments, suits, costs, expenses
and disbursements (including Attorney Costs (which shall be limited to one (1)
counsel to the Administrative Agents and the Lenders (plus any local counsel),
unless (x) the interests of the Administrative Agents and the Lenders are
sufficiently divergent, in which case one (1) additional counsel may be
appointed, and (y) if the interests of any Lender or group of Lenders (other
than all of the Lenders) are distinctly or disproportionately affected, one (1)
additional counsel for such Lender or group of Lenders)) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any such Indemnitee in any way relating to or arising out of or in connection
with (a) the execution, delivery, enforcement, performance or administration of
any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of the
transactions contemplated thereby, (b) any Commitment, Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by
an L/C Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit), or (c) any actual or alleged presence,
Release or threatened Release of Hazardous Materials at, under, on or from any
property currently or formerly owned or operated by the U.S. Borrower, any
Subsidiary or any other Loan Party, or any Environmental Liability related in
any way to the U.S. Borrower, any Subsidiary or any other Loan Party, or (d) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory
(including any investigation of, preparation for, or defense of any pending or
threatened claim, investigation, litigation or proceeding) and regardless of
whether any Indemnitee is a party thereto (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"), in all cases, whether or not caused by or arising,
in whole or in part, out of the negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee or breach of the
Loan Documents by such Indemnitee.
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No Indemnitee shall be liable for any damages arising from the use by others of
any information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement, nor shall
any Indemnitee or any Loan Party have any liability for any special, punitive,
indirect or consequential damages relating to this Agreement or any other Loan
Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 10.05
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnitee or any other Person, whether or not
any Indemnitee is otherwise a party thereto and whether or not any of the
transactions contemplated hereunder or under any of the other Loan Documents is
consummated. All amounts due under this Section 10.05 shall be payable within
twenty (20) Business Days after demand therefor; provided that any Indemnitee
shall promptly refund amounts paid to such Indemnitee pursuant to this Section
10.05 to the extent that a court of competent jurisdiction determines in a
final, nonappealable judgment that such Indemnitee was not entitled to
indemnification with respect to such payment pursuant to the express terms of
this Section 10.05. The agreements in this Section 10.05 shall survive the
resignation of either Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
10.06 Payments Set Aside. To the extent that any payment by or on
behalf of any Borrower is made to any Agent or any Lender, or any Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff or any part thereof is 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, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law 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 setoff had not occurred, and (b) each Lender
severally agrees to pay to the applicable Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by any Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate (to the extent such amount
was required to be paid in Dollars) or the Canadian Prime Rate (to the extent
such amount was required to be paid in Canadian Dollars) from time to time in
effect.
10.07 Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that Holdings and the
Borrowers may not assign or otherwise transfer any of their rights or
obligations hereunder (except as expressly permitted by Article VII) without the
prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of Section 10.07(b), (ii) by way of
participation in accordance with the provisions of Section 10.07(d), (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of Section 10.07(f) or (h) or (iv) to an SPC in accordance with the provisions
of Section 10.07(g) (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied,
shall be
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construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in Section 10.07(d) and, to the extent expressly contemplated hereby,
the Indemnitees) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(c) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for
purposes of this Section 10.07(b), participations in L/C Obligations and in
Swing Line Loans) at the time owing to it); provided that (i) the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the applicable Commitment is not then in effect, the
outstanding principal balance of the Loan of the assigning Lender subject to
each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000, in the case of any assignment in
respect of the U.S. Revolving Credit Facility or the Canadian Facility, or
$1,000,000, in the case of any assignment in respect of the Term Facility,
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
Fund with respect to a Lender, unless each of the applicable Administrative
Agent and, so long as no Default has occurred and is continuing, the U.S.
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, except that
this clause (ii) shall not (x) apply to rights in respect of Swing Line Loans or
(y) prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro rata basis; (iii) any
assignment of a U.S. Revolving Credit Commitment must be approved by the U.S.
Administrative Agent, the U.S. L/C Issuer and the U.S. Swing Line Lender, and
any assignment of a Canadian Credit Commitment must be approved by the Canadian
Administrative Agent, the Canadian Swing Line Lender and the Canadian L/C
Issuer, in each case unless the Person that is the proposed assignee is itself a
Revolving Credit Lender of the applicable Facility (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); (iv) the parties to
each assignment shall execute and deliver to the applicable Administrative Agent
an Assignment and Assumption, together with a processing and recordation fee of
$3,500; and (v) the assigning Lender shall deliver any Notes evidencing such
Loans to the U.S. Borrower or the applicable Administrative Agent; provided,
further, that in the case of an assignment to an Affiliate of the assigning
Lender, such assignment shall be effective as between such Lender and its
Affiliate immediately without compliance with the conditions for assignment
under this Section 10.07(b) or Section 10.07(d), but shall not be effective with
respect to any Borrower, Administrative Agent, L/C Issuer, Swing Line Lender or
any other Lender, and each Borrower, Administrative Agent, L/C Issuer, Swing
Line Lender or other Lender shall be entitled to deal solely with (and continue
to treat as the Lender hereunder for all purposes) such assigning Lender under
any such assignment, in each case, until the conditions for assignment under
this Section 10.07(b) and Section 10.07(c) have been complied with. Subject to
acceptance and recording thereof by the applicable Administrative Agent pursuant
to Section 10.07(c), from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee
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thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05, 10.04 and 10.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment). Upon request, and the surrender by the assigning Lender of its
Note, the applicable Borrowers (at its expense) shall execute and deliver a Note
to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this clause (b) shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with Section
10.07(d).
(c) Each Administrative Agent, acting solely for this purpose as
an agent of the Borrowers, shall maintain at its Administrative Agent's Office a
copy of each Assignment and Assumption relating to the Canadian Loans in the
case of the Canadian Administrative Agent and relating to the U.S. Loans in the
case of the U.S. Administrative Agent delivered to it and a register for the
recordation of the names and addresses of the applicable Lenders, and the
applicable Commitments of, and principal amounts (and related interest amounts)
of the applicable Loans, applicable L/C Obligations (specifying the Unreimbursed
Amounts), L/C Borrowings and amounts due under Section 2.03, owing to, each
Lender pursuant to the terms hereof from time to time (each, a "REGISTER"). The
entries in the applicable Register shall be conclusive, absent manifest error,
and the Borrowers, the Agents and the Lenders shall treat each Person whose name
is recorded in such Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary. The
Registers shall be available for inspection by the Borrowers, any Agent and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender may at any time, without the consent of, or notice
to, the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person) (each, a "PARTICIPANT") in all or a portion of
such Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender's
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrowers, the
Agents and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that directly affects such Participant. Subject to Section
10.07(e), the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment
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pursuant to Section 10.07(b) but shall not be entitled to recover greater
amounts under such Sections than the selling Lender would have been entitled to
recover. To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 10.09 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01, 3.04 or 3.05 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the applicable Borrower's prior written consent. A Participant shall not be
entitled to the benefits of Section 3.01 unless the applicable Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the applicable Borrower, to comply with Section 10.15
as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) Notwithstanding anything to the contrary contained herein, any
Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
applicable Administrative Agent and the applicable Borrower (an "SPC") the
option to provide all or any part of any Loan that such Granting Lender would
otherwise be obligated to make pursuant to this Agreement; provided that (i)
nothing herein shall constitute a commitment by any SPC to fund any Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to make all
or any part of such Loan, the Granting Lender shall be obligated to make such
Loan pursuant to the terms hereof. Each party hereto hereby agrees that (i)
neither the grant to any SPC nor the exercise by any SPC of such option shall
increase the costs or expenses or otherwise increase or change the obligations
of the Borrowers under this Agreement (including their obligations under Section
3.01 or 3.04), (ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender. Notwithstanding anything to the
contrary contained herein, any SPC may (i) with notice to, but without prior
consent of the U.S. Borrower and the applicable Administrative Agent and with
the payment of a processing fee of $3,500, assign all or any portion of its
right to receive payment with respect to any Loan to the Granting Lender and
(ii) disclose on a confidential basis any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or Guarantee or credit or liquidity enhancement to such SPC.
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(h) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion of
the Loans owing to it and the Note, if any, held by it to the trustee for
holders of obligations owed, or securities issued, by such Fund as security for
such obligations or securities; provided that unless and until such trustee
actually becomes a Lender in compliance with the other provisions of this
Section 10.07, (i) no such pledge shall release the pledging Lender from any of
its obligations under the Loan Documents and (ii) such trustee shall not be
entitled to exercise any of the rights of a Lender under the Loan Documents even
though such trustee may have acquired ownership rights with respect to the
pledged interest through foreclosure or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if
at any time Bank of America, N.A. or UBS Loan Finance LLC assigns all of its
U.S. Commitments and U.S. Loans pursuant to Section 10.07(b), Bank of America,
N.A. or UBS Loan Finance LLC may, (i) upon thirty (30) days' notice to the U.S.
Borrower and the applicable U.S. Lenders, resign as a U.S. L/C Issuer and/or
(ii) upon thirty (30) days' notice to the U.S. Borrower, resign as U.S. Swing
Line Lender. In the event of any such resignation as U.S. L/C Issuer or U.S.
Swing Line Lender, the U.S. Borrower shall be entitled to appoint from among the
U.S. Lenders a successor U.S. L/C Issuer or U.S. Swing Line Lender under the
U.S. Revolving Credit Facility hereunder; provided, however, that no failure by
the U.S. Borrower to appoint any such successor shall affect the resignation of
Bank of America, N.A. or UBS Loan Finance LLC, as applicable, as a U.S. L/C
Issuer or U.S. Swing Line Lender, as the case may be. If Bank of America, N.A.
resigns as U.S. L/C Issuer, it shall retain all the rights and obligations of
the U.S. L/C Issuer hereunder with respect to all U.S. Letters of Credit issued
by it that are outstanding as of the effective date of its resignation as a U.S.
L/C Issuer and all U.S. L/C Obligations with respect thereto (including the
right to require the applicable Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If UBS Loan
Finance LLC resigns as U.S. Swing Line Lender, it shall retain all the rights of
the U.S. Swing Line Lender provided for hereunder with respect to U.S. Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding U.S. Swing Line Loans pursuant to
Section 2.04(c).
(j) Notwithstanding anything to the contrary contained herein, if
at any time Bank of America, N.A. (Canada Branch) or UBS AG Canada Branch
assigns all of its Canadian Commitments and Canadian Loans pursuant to Section
10.07(b), Bank of America, N.A. (Canada Branch) or UBS AG Canada Branch may, (i)
upon thirty (30) days' notice to the Canadian Borrower and the applicable
Canadian Lenders, resign as a Canadian L/C Issuer and/or (ii) upon thirty (30)
days' notice to the Canadian Borrower, resign as Canadian Swing Line Lender. In
the event of any such resignation as Canadian L/C Issuer or Canadian Swing Line
Lender, the Canadian Borrowers shall be entitled to appoint from among the
Canadian Lenders a successor Canadian L/C Issuer or Canadian Swing Line Lender
under the Canadian Facility hereunder; provided, however, that no failure by the
Canadian Borrowers to appoint any such successor shall affect the resignation of
Bank of America, N.A. (Canada Branch) or UBS AG Canada Branch, as applicable, as
a Canadian L/C Issuer or Canadian Swing Line Lender, as the case may be. If Bank
of America, N.A. (Canada Branch) resigns as Canadian L/C Issuer, it shall retain
all the rights and obligations of the Canadian L/C Issuer hereunder with respect
to all
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Canadian Letters of Credit issued by it that are outstanding as of the effective
date of its resignation as a Canadian L/C Issuer and all Canadian L/C
Obligations with respect thereto (including the right to require the applicable
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). If UBS AG Canada Branch, resigns as
Canadian Swing Line Lender, it shall retain all the rights of the Canadian Swing
Line Lender provided for hereunder with respect to Canadian Swing Line Loans
made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Canadian Swing Line Loans pursuant to Section
2.04(c).
(k) For the avoidance of doubt any reallocation of Loans as
contemplated by Article II shall not be subject to the provisions of this
Section 10.07.
10.08 Confidentiality. Each of the Agents and the Lenders agrees to
maintain the confidentiality of the Information, except that Information may be
disclosed (a) to its directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (c) to
the extent required by applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) subject to
an agreement containing provisions substantially the same as those of this
Section 10.08 (or as may otherwise be reasonably acceptable to the Borrower), to
any Eligible Assignee of or Participant in, or any prospective Eligible Assignee
of or Participant in, any of its rights or obligations under this Agreement; (f)
with the consent of any Borrower; (g) to the extent such Information becomes
publicly available other than as a result of a breach of this Section 10.08; (h)
to any state, provincial, Federal or foreign authority or examiner (including
the National Association of Insurance Commissioners or any other similar
organization) regulating any Lender; (i) to any rating agency when required by
it (it being understood that, prior to any such disclosure, such rating agency
shall undertake to preserve the confidentiality of any Information relating to
the Loan Parties received by it from such Lender) or (j) in connection with the
exercise of any remedy hereunder or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder. In addition, the Agents and the Lenders may disclose the
existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to the Agents and the Lenders in connection with the administration
and management of this Agreement, the other Loan Documents, the Commitments, and
the Credit Extensions. For the purposes of this Section 10.08, "INFORMATION"
means all information received from any Loan Party relating to any Loan Party or
its business, other than any such information that is publicly available to any
Agent or any Lender prior to disclosure by any Loan Party other than as a result
of a breach of this Section 10.08; provided that, in the case of information
received from a Loan Party after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section 10.08
shall be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
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10.09 Setoff. In addition to any rights and remedies of the Lenders
provided by Law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrowers or any other Loan Party, any such notice being
waived by the Borrowers (on their own behalf and on behalf of each Loan Party)
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 the respective Loan Parties against any and all
Obligations owing to such Lender hereunder or under any other Loan Document, now
or hereafter existing, irrespective of whether or not such 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 or denominated in a
currency different from that of the applicable deposit or Indebtedness; provided
that, in the case of any such deposits or other Indebtedness for the credit or
the account of any Canadian Subsidiary, such set off may only be against any
Canadian Obligations. Each Lender agrees promptly to notify the applicable
Borrower and the applicable Administrative Agent after any such setoff and
application made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such setoff and application. The
rights of the Administrative Agents and each Lender under this Section 10.09 are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) that the Administrative Agents and such Lender may have.
Notwithstanding anything herein or in any other Loan Document to the contrary,
in no event shall the assets of any Foreign Subsidiary constitute security, or
shall the proceeds of such assets be available for, payment of the Obligations
with respect to the U.S. Facility, it being understood that (a) the Equity
Interests of any Foreign Subsidiary owned directly by a U.S. Loan Party do not
constitute such an asset and (b) the provisions hereof shall not limit, reduce
or otherwise diminish in any respect the U.S. Borrower's obligations to make any
mandatory prepayment pursuant to Section 2.05(b)(ii).
10.10 Interest Rate Limitation. (a) Notwithstanding anything to the
contrary contained in any Loan Document, the interest paid or agreed to be paid
under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the "MAXIMUM RATE"). If any Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the applicable Borrower. In determining
whether the interest contracted for, charged, or received by an Agent or a
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
(a) In addition to the provisions of Section 10.10(a), if any
provision of this Agreement or of any of the other Loan Documents would obligate
a Canadian Borrower or any other Canadian Loan Party to make any payment of
interest or other amount payable to the Canadian Lender in an amount or
calculated at a rate which would be prohibited by law or would result in a
receipt by a Canadian Lender of interest at a criminal rate (as such terms are
construed under the Criminal Code (Canada)), then, notwithstanding such
provisions, such amount or rate
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shall be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so prohibited by
law or so result in a receipt by such Canadian Lender of interest at a criminal
rate, such adjustment to be effected, to the extent necessary, as follows: (1)
firstly, by reducing the amount or rate of interest required to be paid to such
Lender under this Section 10.10(b), and (2) thereafter, by reducing any fees,
commissions, premiums and other amounts required to be paid to the Canadian
Lender which would constitute "interest" for purposes of Section 347 of the
Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect
to all adjustments contemplated thereby, if the Canadian Lender shall have
received an amount in excess of the maximum permitted by that section of the
Criminal Code (Canada), the excess shall be applied in accordance with Section
10.10(a). Any amount or rate of interest referred to in this Section 10.10(b)
shall be determined in accordance with generally accepted actuarial practices
and principles as an effective annual rate of interest over the term that the
applicable Canadian Loan remains outstanding on the assumption that any charges,
fees or expenses that fall within the meaning of "interest" (as defined in the
Criminal Code (Canada)) shall, if they relate to a specific period of time, be
prorated over that period of time and otherwise be prorated over the period from
the Closing Date to the Maturity Date and, in the event of a dispute, a
certificate of a Fellow of the Canadian Institute of Actuaries appointed by
Canadian Administrative Agent shall be conclusive for the purposes of such
determination.
10.11 Counterparts.
This Agreement and each other Loan Document may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery by
telecopier of an executed counterpart of a signature page to this Agreement and
each other Loan Document shall be effective as delivery of an original executed
counterpart of this Agreement and such other Loan Document. The Agents may also
require that any such documents and signatures delivered by telecopier be
confirmed by a manually-signed original thereof; provided that the failure to
request or deliver the same shall not limit the effectiveness of any document or
signature delivered by telecopier.
10.12 Integration. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; provided that the inclusion of
supplemental rights or remedies in favor of the Agents or the Lenders in any
other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
10.13 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by each Agent
and each Lender, regardless of any investigation made by any Agent or any
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Lender or on their behalf and notwithstanding that any Agent or any Lender may
have had notice or knowledge of any Default at the time of any Credit Extension,
and shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
10.14 Severability. If any provision of this Agreement or the other
Loan Documents is held to be illegal, invalid or unenforceable, the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby. The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10.15 Tax Forms. (a) Except in connection with a CAM Exchange (in
which case each Foreign Lender shall comply with Section 10.15(a)(i) to the
extent practicable) (i) each Lender and Agent that is not a "United States
person" within the meaning of Section 7701(a)(30) of the Code (each, a "FOREIGN
LENDER") shall deliver to the U.S. Borrower and the U.S. Administrative Agent,
prior to receipt of any payment subject to withholding under the Code (or upon
accepting an assignment of an interest herein), two duly signed, properly
completed copies of either IRS Form W-8BEN or any successor thereto (relating to
such Foreign Lender and entitling it to an exemption from, or reduction of,
United States withholding tax on all payments to be made to such Foreign Lender
by the U.S. Borrower or any other Loan Party pursuant to this Agreement or any
other Loan Document) or IRS Form W-8ECI or any successor thereto (relating to
all payments to be made to such Foreign Lender by the U.S. Borrower or any other
Loan Party pursuant to this Agreement or any other Loan Document) or such other
evidence reasonably satisfactory to the U.S. Borrower and the U.S.
Administrative Agent that such Foreign Lender is entitled to an exemption from,
or reduction of, United States withholding tax, including any exemption pursuant
to Section 881(c) of the Code, and in the case of a Foreign Lender claiming such
an exemption under Section 881(c) of the Code, a certificate that establishes in
writing to the U.S. Borrower and the U.S. Administrative Agent that such Foreign
Lender is not (i) a "bank" as described in Section 881(c)(3)(A) of the Code,
(ii) a 10-percent shareholder within the meaning of Section 871(h)(3)(B) of the
Code, and (iii) a controlled foreign corporation related to the U.S. Borrower
with the meaning of Section 864(d) of the Code. Thereafter and from time to
time, each such Foreign Lender shall (A) promptly submit to the U.S. Borrower
and the U.S. Administrative Agent such additional duly completed and signed
copies of one or more of such forms or certificates (or such successor forms or
certificates as shall be adopted from time to time by the relevant United States
taxing authorities) as may then be available under then current United States
laws and regulations to avoid, or such evidence as is reasonably satisfactory to
the U.S. Borrower and the U.S. Administrative Agent of any available exemption
from, or reduction of, United States withholding taxes in respect of all
payments to be made to such Foreign Lender by the U.S. Borrower or other Loan
Party pursuant to this Agreement, or any other Loan Document, in each case, (1)
on or before the date that any such form, certificate or other evidence expires
or becomes obsolete, (2) after the occurrence of any event requiring a change in
the most recent form, certificate or evidence previously delivered by it to the
U.S. Borrower and the U.S. Administrative Agent and (3) from time to time
thereafter if reasonably requested by the U.S. Borrower or the U.S.
Administrative Agent, and (B) promptly notify the U.S. Borrower and the U.S.
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction.
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(ii) Each Foreign Lender, to the extent it does not act or ceases
to act for its own account with respect to any portion of any sums paid or
payable to such Foreign Lender under any of the Loan Documents (for example, in
the case of a typical participation by such Foreign Lender), shall deliver to
the applicable Borrower and the applicable Administrative Agent on the date when
such Foreign Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable, and at such other times as may be
necessary in the determination of the applicable Borrower or the applicable
Administrative Agent (in either case, in the reasonable exercise of its
discretion), (A) two duly signed completed copies of the forms or statements
required to be provided by such Foreign Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such Foreign
Lender acts for its own account that is not subject to United States withholding
tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any
successor thereto), together with any information such Foreign Lender chooses to
transmit with such form, and any other certificate or statement of exemption
required under the Code, to establish that such Foreign Lender is not acting for
its own account with respect to a portion of any such sums payable to such
Foreign Lender.
(iii) The Borrowers shall not be required to pay any additional
amount or any indemnity payment under Section 3.01 to (A) any Foreign Lender
with respect to any Taxes required to be deducted or withheld on the basis of
the information, certificates or statements of exemption such Lender transmits
with an IRS Form W-8IMY pursuant to this Section 10.15(a), (B) any Foreign
Lender by reason of such Foreign Lender failing to satisfy the foregoing
provisions of this Section 10.15(a), or (C) any U.S. Lender by reason of such
U.S. Lender failing to satisfy the provisions of Section 10.15(b); provided that
if such Lender shall have satisfied the requirement of this Section 10.15(a) or
Section 10.15(b), as applicable, on the date such Lender became a Lender or
ceased to act for its own account with respect to any payment under any of the
Loan Documents, nothing in this Section 10.15(a) or Section 10.15(b) shall
relieve the Borrowers of their obligation to pay any amounts pursuant to Section
3.01 in the event that, as a result of any change in any applicable Law, treaty
or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.
(iv) Either Administrative Agent may deduct and withhold any taxes
required by any Laws to be deducted and withheld from any payment under any of
the Loan Documents and shall promptly provide notice to the applicable Borrower
if it does so. If an Administrative Agent deducts or withholds any such taxes,
the obligations of any Loan Party to gross-up or indemnify, or the rights of any
Loan Party to not gross-up or indemnify, for such taxes or related amounts shall
be as otherwise stated in this Agreement.
(b) Each Lender and Agent that is a "United States person" within
the meaning of Section 7701(a)(30) of the Code (each, only for the purposes of
this Section 10.15, a "U.S. LENDER") shall deliver to the Administrative Agent
and the Borrower two duly signed, properly completed copies of IRS Form W-9 on
or prior to the Closing Date (or on or prior to the date it becomes a party to
this Agreement), certifying that such U.S. Lender is entitled to an
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exemption from United States backup withholding tax, or any successor form. If
such U.S. Lender fails to deliver such forms, then the Administrative Agent may
withhold from any payment to such U.S. Lender an amount equivalent to the
applicable backup withholding tax imposed by the Code.
(c) Each Canadian Lender shall deliver to the Canadian Borrowers
and the Canadian Administrative Agent, at the time such Canadian Lender first
becomes party to this Agreement, such certificates as are reasonably
satisfactory to the Canadian Borrowers and the Canadian Administrative Agent
that such Canadian Lender is not subject to, or, if applicable, is entitled to a
reduction of, Canadian withholding tax in respect of amounts paid or credited to
it pursuant to the Loan Documents, and thereafter from time to time each such
Canadian Lender shall promptly submit to the Canadian Borrowers and the Canadian
Administrative Agent (i) after the occurrence of an event requiring a change in
the most recent certificate previously delivered by it pursuant to this section
(including any event whereby the Canadian Lender ceases to act for its own
account with respect to any amounts payable to it under any of the Loan
Documents) and (ii) upon request of the Canadian Borrowers or the Canadian
Administrative Agent, such additional duly completed and signed certificates as
needed to determine the eligibility of Canadian withholding tax, or the rate
thereof, and in any event shall promptly notify the Canadian Borrowers and the
Canadian Administrative Agent of any change in circumstances which would modify
or render invalid a previously delivered certificate. The Canadian Borrowers
confirm that following certificates shall be satisfactory to them for the
purposes of this Section 10.15(c): (x) in the case of certifying that a Canadian
Lender is not subject to Canadian withholding tax, a certificate signed by an
authorized representative of such Canadian Lender certifying (in such person's
capacity as a representative and not in his or her personal capacity) that such
Canadian Lender is a Canadian Person; and (y) in the case of certifying that a
Canadian Lender is entitled to a reduction of Canadian withholding tax, a
certification in the form provided in Canada Revenue Agency Information Circular
76-12R5.
10.16 Governing Law. (a) THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, the LAW OF THE STATE OF
NEW YORK.
(a) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER, EACH
Agent AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, EACH Agent AND
EACH LENDER 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 ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
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10.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION 10.17 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.18 Binding Effect. This Agreement shall become effective when it
shall have been executed by the parties hereto and thereafter shall be binding
upon and inure to the benefit of the Borrowers, each Agent and each Lender and
their respective successors and assigns, except that the Borrowers shall not
have the right to assign their rights hereunder or any interest herein without
the prior written consent of the Lenders except as permitted by Section 7.04.
10.19 Judgment Currency. (a) Each Borrower's obligation hereunder
and under the other Loan Documents to make payments in Dollars or Canadian
Dollars, as specified in Article II, shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
currency other than Dollars or Canadian Dollars, as applicable, except to the
extent that such tender or recovery results in the effective receipt by the
applicable Administrative Agent or the respective Lender of the full amount of
Dollars or Canadian Dollars, as applicable, expressed to be payable to such
Administrative Agent or such Lender under this Agreement or the other Loan
Documents. If, for the purpose of obtaining or enforcing judgment against a
Borrower in any court or in any jurisdiction, it becomes necessary to convert
into or from any currency other than the currency specified herein as the
currency to be paid (such other currency being hereinafter referred to as the
"JUDGMENT CURRENCY") an amount due in dollars, the conversion shall be made at
the rate of exchange (as quoted by the applicable Administrative Agent or if
such Administrative Agent does not quote a rate of exchange on such currency, by
a known dealer in such currency designated by such Administrative Agent)
determined, in each case, as of the Business Day immediately preceding the day
on which the judgment is given (such Business Day being hereinafter referred to
as the "JUDGMENT CURRENCY CONVERSION DATE").
(b) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual payment of
the amount due, each Borrower covenants and agrees to pay, or cause to be paid,
such additional amounts, if any (but in any event not a lesser amount) as may be
necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of Dollars or Canadian Dollars, as applicable, which could
have been
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purchased with the amount of Judgment Currency stipulated in the judgment or
judicial award at the rate of exchange prevailing on the Judgment Currency
Conversion Date.
(c) For purposes of determining any rate of exchange for this
Section 10.19, such amounts shall include any premium and costs payable in
connection with the purchase of Dollars or Canadian Dollars, as applicable.
10.20 Collection Allocation Mechanism. (a) On the CAM Exchange Date,
(i) each U.S. Revolving Credit Lender shall immediately be deemed to have
acquired (and shall promptly make payment therefor to the U.S. Administrative
Agent in accordance with Section 2.04(c)(ii)) participations in the U.S. Swing
Line Loans in an amount equal to such U.S. Revolving Lender's Pro Rata Share of
each U.S. Swing Line Loan outstanding on such date, (ii) each U.S. Revolving
Credit Lender shall immediately be deemed to have acquired (and shall promptly
make payment therefor to the U.S. Administrative Agent in accordance with
Section 2.03(c)(i)) participations in the Outstanding Amount of L/C Obligations
with respect to each U.S. Letter of Credit in an amount equal to such U.S.
Revolving Credit Lender's Pro Rata Share of the aggregate amount available to be
drawn under such U.S. Letter of Credit, (iii) each Canadian Lender shall
immediately be deemed to have acquired (and shall promptly make payment therefor
to the Canadian Administrative Agent in accordance with Section 2.04(c)(ii))
participations in the Canadian Swing Line Loans in an amount equal to such
Canadian Lender's Pro Rata Share of each Canadian Swing Line Loan outstanding on
such date, (iv) each Canadian Lender shall immediately be deemed to have
acquired (and shall promptly make payment therefor to the Canadian
Administrative Agent in accordance with Section 2.03(c)(i)) participations in
the Outstanding Amount of L/C Obligations with respect to each Canadian Letter
of Credit in an amount equal to such Canadian Lender's Pro Rata Share of the
aggregate amount available to be drawn under such Canadian Letter of Credit, (v)
simultaneously with the automatic conversions pursuant to clause (vi) below, the
Lenders shall automatically and without further act (and without regard to the
provisions of Section 10.04) be deemed to have exchanged interests in the Loans
(other than the Swing Line Loans) and Canadian BAs and participations in the
Swing Line Loans and Letters of Credit, such that in lieu of the interest of
each Lender in each Loan, Canadian BA and L/C Obligations in which it shall
participate as of such date (including such Lender's interest in the
Obligations, Guaranty and Collateral of each Loan Party in respect of each such
Loan, Canadian BA and L/C Obligations), such Lender shall hold an interest in
every one of the Loans (other than the Swing Line Loans) and Canadian BAs and a
participation in every one of the Swing Line Loans and all of the L/C
Obligations (including the Obligations, Guaranty and Collateral of each Loan
Party in respect of each such Loan), whether or not such Lender shall previously
have participated therein, equal to such Lender's CAM Percentage thereof and
(vi) simultaneously with the deemed exchange of interests pursuant to clause (v)
above, the interest in the Loans and Canadian BAs denominated in Canadian
Dollars to be received in such deemed exchange shall be converted into
Obligations denominated in Dollars and on and after such date all amounts
accruing and owed to Lenders in respect of such Obligations shall accrue and be
payable in Dollars at the rates otherwise applicable hereunder. It is understood
and agreed that Lenders holding interests in Canadian BAs on the CAM Exchange
Date shall discharge the obligations to such Canadian BAs at maturity in
exchange for the interests acquired by such Lenders in the CAM Exchange. Each
Lender and each Loan Party hereby consents and agrees to the CAM Exchange, and
each Lender agrees that the CAM
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Exchange shall be binding upon its successors and assigns and any person that
acquires a participation in its interests in any Loan or Canadian BA or any
participation in any Swingline Loan or Letter of Credit. Each Loan Party agrees
from time to time to execute and deliver to the applicable Administrative Agent
all such promissory notes and other instruments and documents as the applicable
Administrative Agent shall reasonably request to evidence and confirm the
respective interests of the Lenders after giving effect to the CAM Exchange, and
each Lender agrees to surrender any promissory notes originally received by it
in connection with its Loans hereunder to the applicable Administrative Agent
against delivery of any promissory notes evidencing its interests in the Loans
and Canadian BAs so executed and delivered; provided, however, that the failure
of any Loan Party to execute or deliver or of any Lender to accept any such
promissory note, instrument or document shall not affect the validity or
effectiveness of the CAM Exchange.
(b) As a result of the CAM Exchange, upon and after the CAM
Exchange Date, each payment received by any Administrative Agent pursuant to any
Loan Document in respect of any of the Obligations, and each distribution made
by any Administrative Agent in respect of the Obligations, shall be distributed
to the Lenders pro rata in accordance with their respective CAM Percentages. Any
direct payment received by a Lender upon or after the CAM Exchange Date,
including by way of setoff, in respect of an Obligation shall be paid over to
the U.S. Administrative Agent for distribution to the Lenders in accordance
herewith.
10.21 Covenant to Pay. (a) For value received, each U.S. Loan Party
(collectively the "COVENANT TO PAY PARTIES" and each a "COVENANT TO PAY PARTY")
hereby agrees and covenants with the U.S. Administrative Agent that it shall pay
to the U.S. Administrative Agent on first demand, if and when such amounts
become due and payable, amounts equal to all amounts which such Covenant to Pay
Party is now or may at any time and from time to time hereafter be obligated to
pay to the Secured Parties or any one or more of them under any of the Loan
Documents to which such Covenant to Pay Party is now or may at any time become a
party (such agreement and covenant is hereafter referred to as a "COVENANT
OBLIGATION").
(b) If, after foreclosure of all Dutch Collateral in which a Lien
is granted by any Covenant to Pay Party, the proceeds are not sufficient to
satisfy and discharge such Covenant to Pay Party's Covenant Obligation, the
remainder of such Covenant Obligation shall then cease to exist, but without
prejudice to any other Obligations which such Covenant to Pay Party may have and
without prejudice to any other remedies which the Secured Parties may have under
any of the Loan Documents.
(c) Each of the Covenant to Pay Parties and the U.S.
Administrative Agent agree and acknowledge that (i) each Covenant to Pay Party's
Covenant Obligation consists of obligations and liabilities of such Covenant to
Pay Party to UBS AG, Stamford Branch, as U.S. Administrative Agent, separate and
independent from and without prejudice to the other Obligations which such
Covenant to Pay Party has or may have at any time to the Secured Parties (or any
of them) (including UBS AG, Stamford Branch) under this Agreement or any of the
other Loan Documents or otherwise, and (ii) each such Covenant to Pay Party's
Covenant Obligation represents the U.S. Administrative Agent's own claim (i.e.,
"vordering op naam") to receive payment of such Covenant to Pay Party's Covenant
Obligation, separate and independent
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from any claims of the Secured Parties on such Covenant to Pay Party, provided
that the total liability of each Covenant to Pay Party under its Covenant
Obligation shall be decreased from time to time to the extent that such Covenant
to Pay Party, or any other applicable Loan Party, shall have permanently paid
any amounts due under this Agreement or any of the other Loan Documents with
respect to its other Obligations. Consequently, the total liability of each
Covenant to Pay Party under its Obligations shall be decreased from time to time
to the extent that such Covenant to Pay Party, or any other applicable Loan
Party, shall have fully and finally paid any amounts due under this Agreement or
any of the other Loan Documents with respect to its Covenant Obligation.
(d) Without limitation of the foregoing provisions of this Section
10.21, nothing contained in this Section shall in any way negate or affect any
Obligations other than the Covenant Obligation which any of the Covenant to Pay
Parties has or at any time may have under the Loan Documents or otherwise to any
Secured Party, including the U.S. Administrative Agent and all payments pursuant
to this Section 10.21 shall be applied in the manner set forth in Section 8.03.
This Section 10.21 shall no longer apply, and cease to have any force or effect,
after all Dutch Collateral has been foreclosed upon or other Disposed of in
accordance with the Loan Documents, but shall become effective at any subsequent
time that a Lien is granted under the Loan Documents with respect to any Dutch
Collateral.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
THL BUILDCO, INC.
By: ________________________________________
Name:
Title:
THL BUILDCO HOLDINGS, INC.
By: ________________________________________
Name:
Title:
BROAN-NUTONE CANADA INC.
By: ________________________________________
Name:
Title:
VENTROL AIR HANDLING SYSTEMS INC.
By: ________________________________________
Name:
Title:
UBS AG, STAMFORD BRANCH, as U.S.
Administrative Agent and Canadian
Administrative Agent
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
S-1
UBS LOAN FINANCE LLC, as
U.S. Swing Line Lender
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
UBS AG CANADA BRANCH, as Canadian Swing Line
Lender
By: ________________________________________
Name:
Title:
UBS SECURITIES LLC, as Arranger
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, acting through
its Cayman Islands Branch, as Arranger and
Syndication Agent
By: ________________________________________
Name:
Title:
By: ________________________________________
Name:
Title:
S-2
BANK OF AMERICA, N.A.,
as U.S. L/C Issuer and as
Co-Documentation Agent
By: ________________________________________
Name:
Title:
BANK OF AMERICA, N.A. (CANADA BRANCH),
as Canadian L/C Issuer
By: ________________________________________
Name:
Title:
FLEET NATIONAL BANK,
as U.S. L/C Issuer and Canadian L/C Issuer
with respect to the Existing Letters of Credit
By: ________________________________________
Name:
Title:
S-3
