Contract
Exhibit
10.1
Dated
as of August 27, 2004
As
Amended and Restated on April 3, 2006
among
NORTEK,
INC.
(as
successor to THL Buildco, Inc.),
as
the
U.S. Borrower,
The
Canadian Borrowers Named Herein,
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,
as
Joint Lead Arrangers and Joint Book Managers,
CREDIT
SUISSE,
as
Syndication Agent,
and
BANK
OF AMERICA, N.A. and
BEAR
XXXXXXX CORPORATE LENDING INC.,
as
Co-Documentation Agents
Xxxxxx
Xxxxxx & Xxxxxxx llp
00
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
TABLE
OF CONTENTS
Section Page
ARTICLE
I
DEFINITIONS
AND ACCOUNTING TERMS
1.01 Defined
Terms
1.02 Other
Interpretive Provisions
1.03 Accounting
Terms
1.04 Rounding
1.05 References
to Agreements and Laws
1.06 Times
of
Day
1.07 Timing
of
Payment or Performance
1.08 Currency
Equivalents Generally
1.09 Specified
Transactions.
1.10 Effect
of
this Agreement on the Original Credit Agreement and the Other Loan
Documents.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 The
Loans; Reallocation of Revolving Exposure
2.02 Borrowings,
Conversions and Continuations of Loans
2.03 Letters
of Credit
2.04 Swing
Line Loans
2.05 Prepayments
2.06 Termination,
Reduction or Reallocation of Commitments
2.07 Repayment
of Loans
2.08 Interest
2.09 Fees
2.10 Computation
of Interest and Fees
2.11 Evidence
of Indebtedness
2.12 Payments
Generally
2.13 Sharing
of Payments
2.14 Increase
in Term Commitments
2.15 Increase
in Revolving Credit Commitments
2.16 Canadian
BAs
2.17 Additional
Canadian Borrowers
ARTICLE
III
TAXES,
INCREASED COSTS PROTECTION AND ILLEGALITY
3.01 Taxes
3.02 Illegality
3.03 Inability
To Determine Rates
3.04 Increased
Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate
Loans
3.05 Funding
Losses
3.06 Matters
Applicable to All Requests for Compensation
3.07 Replacement
of Lenders Under Certain Circumstances
3.08 Survival
ARTICLE
IV
CONDITIONS
PRECEDENT TO EFFECTIVENESS AND TO CREDIT EXTENSIONS
The
obligations of each Lender to make its initial Credit Extension under the
Original Credit Agreement are set forth in Section 4.01 of the Original Credit
Agreement.
4.01 Conditions
to Effectiveness
4.02 Conditions
to All Credit Extensions
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
5.01 Existence,
Qualification and Power; Compliance with Laws
5.02 Authorization;
No Contravention
5.03 Governmental
Authorization; Other Consents
5.04 Binding
Effect
5.05 Financial
Statements; No Material Adverse Effect
5.06 Litigation
5.07 No
Default
5.08 Ownership
of Property; Liens
5.09 Environmental
Compliance
5.10 Insurance
5.11 Taxes
5.12 ERISA
Compliance
5.13 Subsidiaries;
Equity Interests
5.14 Margin
Regulations; Investment Company Act;
5.15 Disclosure
5.16 Compliance
with Laws
5.17 Intellectual
Property; Licenses, Etc.
5.18 Solvency
5.19 Casualty,
Etc.
5.20 Perfection,
Etc.
5.21 Tax
Shelter Regulations
5.22 Anti-Terrorism
Law
ARTICLE
VI
AFFIRMATIVE
COVENANTS
6.01 Financial
Statements
6.02 Certificates;
Other Information
6.03 Notices
6.04 Payment
of Obligations
6.05 Preservation
of Existence, Etc.
6.06 Maintenance
of Properties
6.07 Maintenance
of Insurance
6.08 Compliance
with Laws
6.09 Books
and
Records
6.10 Inspection
Rights
6.11 Use
of
Proceeds
6.12 Covenant
To Guarantee Obligations and Give Security
6.13 Compliance
with Environmental Laws
6.14 Further
Assurances
6.15 Unrestricted
Subsidiaries
ARTICLE
VII
NEGATIVE
COVENANTS
7.01 Liens
7.02 Investments
7.03 Indebtedness
7.04 Fundamental
Changes
7.05 Dispositions
7.06 Restricted
Payments
7.07 Change
in
Nature of Business
7.08 Transactions
with Affiliates
7.09 Burdensome
Agreements
7.10 Use
of
Proceeds
7.11 Financial
Covenants
7.12 Amendments
of Organization Documents, Etc
7.13 Accounting
Changes
7.14 Prepayments,
Etc. of Indebtedness
7.15 Amendment
of Acquisition Agreement
7.16 Equity
Interests of the U.S. Borrower and Subsidiaries
7.17 Holding
Company
7.18 Designated
Senior Debt
7.19 Maintenance
of Corporate Separateness
ARTICLE
VIII
EVENTS
OF
DEFAULT AND REMEDIES
8.01 Events
of
Default
8.02 Remedies
upon Event of Default
8.03 Application
of Funds
ARTICLE
IX
ADMINISTRATIVE
AGENT AND OTHER AGENTS
9.01 Appointment
and Authorization of Agents
9.02 Delegation
of Duties
9.03 Liability
of Agents
9.04 Reliance
by Agents
9.05 Notice
of
Default
9.06 Credit
Decision; Disclosure of Information by Agents
9.07 Indemnification
of Agents
9.08 Agents
in
Their Individual Capacities
9.09 Successor
Agents
9.10 Administrative
Agents May File Proofs of Claim
9.11 Collateral
and Guaranty Matters
9.12 Other
Agents; Arrangers and Managers
9.13 Appointment
of Supplemental Administrative Agents
ARTICLE
X
MISCELLANEOUS
10.01 Amendments,
Etc.
10.02 Notices
and Other Communications; Facsimile Copies
10.03 No
Waiver; Cumulative Remedies
10.04 Attorney
Costs, Expenses and Taxes
10.05 Indemnification
by the Borrowers
10.06 Payments
Set Aside
10.07 Successors
and Assigns
10.08 Confidentiality
10.09 Setoff
10.10 Interest
Rate Limitation
10.11 Counterparts
10.12 Integration
10.13 Survival
of Representations and Warranties
10.14 Severability
10.15 Tax
Forms
10.16 Governing
Law
10.17 Waiver
of
Right to Trial by Jury
10.18 Binding
Effect
10.19 Judgment
Currency
10.20 Collection
Allocation Mechanism
10.21 Covenant
to Pay
SIGNATURESS-1
SCHEDULES
I Guarantors
5.05 Supplement
to Interim Financial Statements
5.13 Subsidiaries
and Other Equity Investments
7.02 Existing
Investments
7.03(b) Existing
Indebtedness
10.02 Administrative
Agent’s Office; Certain Addresses for Notices
EXHIBIT
A Form
of
First Revolving Credit Commitment Increase Lender Addendum
AMENDED
AND RESTATED CREDIT AGREEMENT
This
AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of April 3, 2006,
among
NORTEK, INC., a Delaware corporation (the “U.S.
Borrower”)
(as
successor to THL Buildco, Inc.), BROAN-NUTONE CANADA INC., an Ontario
corporation, and VENTROL AIR HANDLING SYSTEMS INC., a Canadian corporation,
as
Canadian Borrowers, NORTEK HOLDINGS, INC., a Delaware corporation (“Holdings”)
(formerly named THL Buildco Holdings, Inc.), 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 Borrowers (the “Canadian
Lenders”
and,
together with the U.S. Lenders, the “Lenders”
and
individually, a “Lender”),
CREDIT SUISSE 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
WHEREAS,
the U.S. Borrower (as successor to THL Buildco, Inc.), the Canadian Borrowers,
Holdings (formerly named THL Buildco Holdings, Inc.), 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 have previously entered into a Credit Agreement, dated as of August
27, 2004 (the “Original
Credit Agreement”
(which
term shall, unless the context otherwise requires, include any amendment
thereto
prior to the Restatement Effective Date (as defined below));
WHEREAS,
pursuant to Amendment No. 1 (“Amendment
No. 1”),
dated
as of March 29, 2005 (the “Amendment
No. 1 Effective Date”),
to
the Original Credit Agreement, among other things, the Term Loans (as defined
in
the Original Credit Agreement) made under the Original Credit Agreement were
converted into Term B Loans;
WHEREAS,
the parties wish to enter into this Agreement in order to incorporate the
applicable terms of Amendment No. 1 and to further amend the Original Credit
Agreement on the terms 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).
“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 Amended and Restated Credit Agreement as further amended, amended and
restated or otherwise modified from time to time.
“Amendment
No. 1”
has
the
meaning given such term in the preliminary statements hereto.
“Amendment
No. 1 Effective Date”
has
the
meaning given such term in the preliminary statements hereto.
“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 B Loans, (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)
(or
prior to delivery of a Compliance Certificate under this Agreement, Section 6.02(b)
of the
Original Credit Agreement), (1) for Eurodollar Rate Loans, 2.00% and
(2) for Base Rate Loans, 1.00% 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)
(or
prior to delivery of a Compliance Certificate under this Agreement, Section 6.02(b)
of the
Original Credit Agreement), (1) for Eurodollar Rate Loans, 2.25% and
(2) for Base Rate Loans, 1.25%; provided,
that
the Applicable Rates referred to in clause (B) 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 B Loans, the Applicable
Rates referred to in clause (B) 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,
the following percentages per annum, based upon the Leverage Ratio as set
forth
in the most recent Compliance Certificate received by the Administrative
Agents
pursuant to Section 6.02(b)
(or
prior to delivery of a Compliance Certificate under this Agreement, Section 6.02(b)
of the
Original Credit Agreement):
|
Applicable
Rate
|
|||||
|
Pricing
Level
|
Leverage
Ratio
|
Eurodollar
Rate and Letters of Credit
|
Base
Rate
|
Commitment
Fees
|
Applicable
Canadian BA Stamping Fee
|
|
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
to the
Original Credit Agreement with such changes as the U.S. Administrative Agent
may
from time to time request.
“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 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 U.S. Borrower and its Subsidiaries
for the fiscal year ended December 31, 2005, 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 B 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.
“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 B 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 B 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 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
to the
Original Credit Agreement 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 and the Restatement Effective 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.
“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)
to the
Original Credit Agreement 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 the Canadian Lenders.
“Canadian
fondé 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
collectively: (i) the Master Canadian Guaranty from the Canadian Borrowers
and
Venmar CES in favor of the Canadian Administrative Agent, dated as of August
27,
2004 and (ii) the Canadian Guaranty from Venmar Ventilation Inc., Innergy
Tech
Inc. and Venmar Ventilation (H.D.H.) Inc. in favor of the Canadian
Administrative Agent, dated as of August 27, 2004, in each case, 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
to the
Original Credit Agreement (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.
“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, (i) the General Security Agreement, dated as of August 27,
2004,
by and among the Canadian Administrative Agent, Broan NuTone Canada Inc.
and
Venmar CES, Inc., (ii) each Deed of Hypothec and bond in favor of the Canadian
Administrative Agent, dated as of August 27, 2004, by Ventrol Air Handling
Systems Inc., Venmar Ventilation Inc., Innergy Tech Inc., Venmar Ventilation
(H.D.H.) Inc. or Venmar CES, Inc. and (iii) each other 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
Security Agreement Supplement”
means
any supplement to any of the documents listed in the definition of Canadian
Security Agreement entered into for purposes of adding one or more Canadian
Subsidiaries as a party thereto.
“Canadian
Subsidiary”
means
each Subsidiary of the U.S. Borrower organized under the laws of Canada or
any
jurisdiction thereof.
“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)(iii)
(other
than any Dispositions
under Sections
7.05(b),
(g),
(h),
(i)
and
(k))
or
Casualty Event and the reinvestment of the net cash proceeds of any such
Disposition or Casualty Event which is not subject to Section
2.05(b)(iii)
solely
as a result of failing to meet the minimum threshold amount specified in
Section
2.05(b)(iii),
(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 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
(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 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 Subsidiary of the U.S.
Borrower.
“Closing
Date”
means
August 27, 2004.
“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.
“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 U.S. Revolving Credit Borrowing, (b) a Canadian
Borrowing, (c) a conversion of Loans from one Type to the other, or (d) 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
to the
Original Credit Agreement, in the case of a U.S. Loan, and Exhibit
A-2
to the
Original Credit Agreement, in the case of a Canadian Loan or such other form
as
the U.S. Administrative Agent may from time to time provide.
“Compensation
Period”
has
the
meaning specified in Section
2.12(c)(ii).
“Compliance
Certificate”
means
a
certificate substantially in the form of Exhibit D
to the
Original Credit Agreement 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,
(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),
(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.
“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,
(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 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;
(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
Closing Date, 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.
“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 (as defined in the Original Credit Agreement) and the other
transactions contemplated thereby, and each other director, if, in each case,
such other director’s nomination for election to the board of directors of
Holdings is or was recommended by a majority of the then Continuing Directors
or
such other director receives or received 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
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 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 B
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
of the
Original Credit Agreement 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
of the
Original Credit Agreement or in an Assignment and Assumption, or such other
office within Canada as 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 International Holdings 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.
“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.
“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 U.S. Administrative Agent to be the arithmetic
mean
(rounded upward, if necessary, to the nearest 1/100th of 1%) of the offered
rates 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 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;
(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.
“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.
“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 U.S. Borrower, the
Arrangers and UBS Loan Finance LLC.
“First
Revolving Credit Commitment Increase Lender”
means
each Person that has agreed to provide a First Increased Revolving Credit
Commitment pursuant to a First Revolving Credit Commitment Increase Lender
Addendum.
“First
Revolving Credit Commitment Increase Lender Addendum”
means
a
Lender Addendum, substantially in the form of Exhibit
A
signed
by the U.S. Borrower, a First Revolving Credit Commitment Increase Lender
and
the U.S. Administrative Agent.
“First
Increased Revolving Credit Commitments”
means,
with respect to any First Revolving Credit Commitment Increase Lender, such
Lender’s commitment to provide an additional U.S. Revolving Credit Commitment
(in addition to any such Lender’s U.S. Revolving Credit Commitment immediately
prior to Restatement Effective Date) from and after the
Restatement
Effective Date as set forth in Schedule I to the First Revolving Credit
Commitment Increase Lender Addendum provided by such First Revolving Credit
Commitment Increase Lender. The aggregate amount of First Increased Revolving
Credit Commitments of all First Revolving Credit Commitment Increase Lenders
shall be $100,000,000.
“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.
“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 Restatement Effective 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.
“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 B 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 (i) accrued expenses and trade debt incurred in the
ordinary course of business and (ii) deferred compensation) which would appear
as liabilities on a balance sheet of such Person;
(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 Restatement
Effective 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
to the
Original Credit Agreement 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
to the
Original Credit Agreement, executed by Holdings and each of its Subsidiaries
and
endorsed in blank by each of the U.S. Loan Parties.
“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.
“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 (whether pursuant to the Original Credit Agreement or this Agreement)
and ending on the date one, two, three or six months thereafter, or to the
extent available to all Term B 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; and
(c) no
Interest Period shall extend beyond the Maturity Date of the Facility under
which such Loan was made.
“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, but net of any return of principal or capital in respect
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 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
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.
“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
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 (vii) 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 and (vii) each Secured
Hedge
Agreement and each Secured Cash Management 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 were investors in Investors LLC 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 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 B Facility, the earlier of
(i) August 27, 2011 and (ii) the date of acceleration of the
Term B Loans pursuant to Section 8.02.
“Maximum
Rate”
has
the
meaning specified in Section
10.10.
“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
to the
Original Credit Agreement, 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
6.12.
“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 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)
to the
Original Credit Agreement 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 $5,000,000,
(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 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)
or
Section
2.05(b)
of the
Original Credit Agreement, (b) was not previously included in a calculation
of
“Consolidated EBITDA” pursuant to clause
(b)(xvii)
of the
definition thereof or in such definition in the Original Credit Agreement
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 (including, without limitation, the Original Credit
Agreement) 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 B 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 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 B 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 B
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 on the Closing Date.
“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 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
to the
Original Credit Agreement 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
to the
Original Credit Agreement 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)
or
Section
2.05(b)
of the
Original Credit Agreement.
“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 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 B Facility, (c)
has no
scheduled amortization or payments of principal prior to the Maturity Date
of
the Term B 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 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
Closing Date, (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
to the
Original Credit Agreement or in the Assignment and Assumption pursuant to
which
such Lender becomes a party hereto, as applicable.
“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)
to the
Original Credit Agreement.
“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 B 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 B 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 B Commitments and (c) aggregate unused Revolving
Credit Commitments; provided
that the
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.
“Requisite
Class Lenders”
means,
at any time of determination, (i) for the Term B Lenders, Lenders
holding more than 50% of the aggregate unused Term B Commitments of all Lenders
and Outstanding Amount of Term B 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.
“Restatement
Effective Date”
means
the date on which this Agreement becomes effective pursuant to Section
4.01.
“Restricted
Payment”
means
(i) 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) and (ii) at the election of the
U.S. Borrower, any Investment not otherwise permitted by Section 7.02
(other
than under clause (i) of Section
7.02).
“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.
“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.
“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.
“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 August 27, 2004 among 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 Restatement Effective 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 Restatement
Effective Date, (b) the issuance of Permitted Holdco Debt after the Restatement
Effective Date and (c) the issuance of Permitted Subordinated Indebtedness
by
the U.S. Borrower; provided,
that
for purposes of determining the amount of Specified Issuance Proceeds available
to the U.S. Borrower or any of its Subsidiaries, 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 August 27, 2004 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.
“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 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
to the
Original Credit Agreement, with respect to any U.S. Swing Line Borrowing
or
Exhibit
B-2
to the
Original Credit Agreement, with respect to any Canadian Swing Line
Borrowing.
“Syndication
Agent”
means
Credit Suisse 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.
“Tax
Reduction Amount”
has
the
meaning set forth in Section 7.06(d).
“Taxes”
has
the
meaning specified in Section
3.01(a).
“Term
B Borrowing”
means
a
borrowing consisting of simultaneous Term Loans (as defined in the Original
Credit Agreement) of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Term Lenders (as defined
in
the Original Credit Agreement) pursuant to Section
2.01(a)
of the
Original Credit Agreement and converted into Term B Loans pursuant to Amendment
No. 1.
“Term
B Facility”
means,
at any time, the aggregate Term B Loans of all Lenders at such
time.
“Term
B Lender”
means,
at any time, any Lender that holds a Term B Loan at such time.
“Term
B Loan”
means
a
Loan that was converted to a Term B Loan on the Amendment No. 1
Effective Date in accordance with Amendment No. 1.
“Term
B Note”
means
a
promissory note of the U.S. Borrower payable to any Term B Lender or its
registered assigns, in substantially the form of Exhibit C-1
to the
Original Credit Agreement (except that references therein to the Term Loans
shall be changed to the “Term B Loans”), evidencing the aggregate indebtedness
of the U.S. Borrower to such Term B Lender under the Term B Loans of
such Term B Lender.
“Term
Commitments Increase Effective Date”
has
the
meaning set forth in Section 2.14(b).
“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 B Loans, U.S.
Revolving Credit Loans or Canadian Loans.
“Transaction”
has
the
meaning provided in the Original Credit Agreement.
“Type”
means,
with respect to a Loan, its character as a Base Rate Loan, Canadian BA Rate
Loan
or a Eurodollar Rate Loan.
“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 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.
Commitments”
means
the Term B Loan Commitments and the U.S. Revolving Credit
Commitments.
“U.S.
Commitment Fee”
has
the
meaning specified Section
2.09(a).
“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)
of the
Original Credit Agreement under the heading “Existing Letters of Credit under
the U.S. Revolving Credit Facility”.
“U.S.
Facility”
means
the Term B 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.
fondé 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.
“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 $60,000,000. 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
a
Term B 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
to the
Original Credit Agreement under the caption “U.S. Revolving Credit Commitment”
or in the Assignment and Assumption pursuant to which such Lender becomes
a
party to the Original Credit Agreement or this Agreement, 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 Restatement Effective Date, as such amount may be adjusted from time
to
time in accordance with the terms of this Agreement including by the amount
of
the First Increased Revolving Credit Commitments on the Restatement Effective
Date.
“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).
“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
to the
Original Credit Agreement (with such modifications as the U.S. Administrative
Agent may agree to from time to time), 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
to the
Original Credit Agreement, together with each other security agreement
supplement executed and delivered pursuant to Section
6.12
to the
Original Credit Agreement.
“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, dated as of August 27, 2004,
made by
the U.S. Subsidiary Guarantors in favor of the U.S. Administrative Agent
on
behalf of the Lenders, 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 the U.S. Borrower and its Subsidiaries, at of any date, the
excess of Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
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.
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
Transaction (and all other Specified Transactions that have been consummated
during such period) on a Pro Forma Basis.
1.10 Effect
of this Agreement on the Original Credit Agreement and the Other Loan
Documents.
Upon
satisfaction of the conditions precedent to the effectiveness of this Agreement
set forth in Section 4.01(a), this Agreement shall be binding on the Borrowers,
the Agents, the Lenders and the other parties hereto and the provisions of
the
Original Credit Agreement shall be replaced by the provisions of this Agreement;
provided,
that
(i) all Loans, Letters of Credit or other Credit Extensions outstanding under
the Original Credit Agreement shall continue as Loans, Letters of Credit
or
other Credit Extensions, as applicable, under this Agreement (and, in the
case
of Eurodollar Loans, with the same Interest Periods as were applicable to
such
Eurodollar Loans immediately prior to the Restatement Effective Date), (ii)
all
amounts owing by the Borrowers under the Original Credit Agreement to any
Person
in respect of accrued and unpaid interest and fees on the Loans, Commitments
and
Letters of Credit shall continue to be due and owing on such Loans, Commitments
and Letters of Credit under this Agreement and (iii) any Person entitled
to the
benefits of Article
III
or
Section
10.05
of the
Original Credit Agreement shall continue to be entitled to the benefits of
the
corresponding provisions of this Agreement. Upon the effectiveness of this
Agreement in accordance with Section 4.01(a), each Loan Document that was
in
effect immediately prior to the Restatement Effective Date shall continue
to be
effective and, unless the context otherwise requires, any reference to the
Original Credit Agreement contained therein shall be deemed to refer to this
Agreement and any reference to the Term Loans shall be deemed to refer to
the
Term B Loans.
ARTICLE
II
THE
COMMITMENTS AND CREDIT EXTENSIONS
2.01 The
Loans;
Reallocation of Revolving Exposure
.
(a) The
Term B Borrowings.
On the
Closing Date, the Term Loans (as defined in the Original Credit Agreement)
were
made to the U.S. Borrower. On the Amendment No. 1 Effective Date, such Term
Loans were converted into Term B Loans pursuant to Amendment No. 1. Amounts
borrowed under this Section
2.01(a)
and
repaid or prepaid may not be re-borrowed. Term B 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, 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(a),
prepay
(except in the case of Canadian BAs) under Section
2.05,
and
re-borrow 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.
(c) Reallocation
of Revolving Exposure on Restatement Effective Date.
On the
Restatement Effective Date, each of the Lenders having a U.S. Revolving Credit
Commitment prior to the Restatement Effective Date (the “Pre-First
Revolving Credit Commitment Increase Lender”)
shall
assign to each First Revolving Credit Commitment Increase Lender, and each
such
First Revolving Credit Commitment Increase Lender shall purchase from each
Pre-First Revolving Credit Commitment Increase Lender, 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 the Restatement
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-First Revolving Credit Commitment Lenders and First Revolving Credit
Commitment Increase Lenders ratably in accordance with their U.S. Revolving
Credit Commitments after giving effect to the First Increased Revolving Credit
Commitments. The payment of accrued interest on the first Interest Payment
Date
after the Restatement Effective Date to the U.S. Revolving Credit Lenders
and
the payment of the U.S. Commitment Fee and Letter of Credit fee for each
U.S.
Letter of Credit to the U.S. Revolving Credit Lenders on the first payment
date
after the Restatement Effective Date shall be made after giving effect to
the
purchase made on the Restatement Effective Date set forth in the prior
sentence.
2.02 Borrowings,
Conversions and Continuations of Loans
.
(a) Each
Revolving Credit Borrowing, each conversion of Term B 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 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,
conversion or continuation and (i) whether such Borrower is requesting a
U.S.
Revolving Credit Borrowing, a Canadian Loan, a conversion of Term B 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 B 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
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 B 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 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 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,
the
applicable Administrative Agent shall make all funds 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 Revolving Credit Borrowings, all conversions of Term
B
Loans or Revolving Credit Loans from one Type to the other, and all
continuations of Term B 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 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
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 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 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 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 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 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;
(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.
(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 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 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 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 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.
(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.
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 B 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) [intentionally
omitted].
(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 B 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
B 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 B 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 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 B 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)(ii)(B),
the
U.S. Borrower shall prepay an aggregate principal amount of Term B 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 B 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 B 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 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 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 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 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 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;
(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
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
B
Loans.
The
U.S. Borrower shall repay to the U.S. Administrative Agent for the ratable
account of the Term B Lenders the aggregate principal amount of all Term
B 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 B 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 B Loans made as
of the
Closing Date)):
|
Date
|
Term
B Loan Principal Amortization Payment
|
|
November
27, 2004
|
$1,750,000
|
|
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 B 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 B 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
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 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.
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 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.
(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 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 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 B Lenders), the U.S. Borrower may on up to
six
(6) different occasions (in the aggregate with Section
2.15),
request additional Term B Loans (the “Incremental
Term B 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, (iii) the Incremental Term B 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 B 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 B
Loans exceeds the Applicable Rate for the Term B Loans (for the corresponding
pricing levels) (or any Incremental Term B Loans previously borrowed) by
more
than 0.50%, then the Applicable Rate for the Term B Loans (and any Incremental
Term B Loans previously borrowed) shall be adjusted to be equal to such interest
rate spreads minus
0.50%,
(y) the Incremental Term B Loans shall not have a final maturity date
earlier than the Maturity Date of the Term B Loans and (iv) the Incremental
Term B 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 B
Loans and any previously borrowed Incremental Term B 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 B 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 B 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 B 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 B Loan Lender of the Lenders’ responses to each
request made hereunder. Any Term B 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 B 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
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 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.
(d) For
the
avoidance of doubt, the First Increased Revolving Credit Commitments shall
not
be deemed to have been incurred pursuant to this Section
2.15
for any
purpose under this Agreement.
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 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 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
to the
Original Credit Agreement, 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. Each
Canadian Borrower and each applicable Canadian Lender hereby acknowledge
and
agree that from time to time certain Canadian Lenders may elect not
to receive any Acceptance Notes, and each Canadian Borrower and each
applicable Canadian Lender agree that with respect to any such Canadian
Lender, in lieu of receiving Acceptance Notes, the applicable Canadian
Loan may be evidenced by a loan account which such Canadian Lender shall
maintain in its name, and in such event such loan account shall be entitled
to
all the benefits of Acceptance Notes.
(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 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 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 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 (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.
(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.
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 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
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 EFFECTIVENESS
AND TO CREDIT EXTENSIONS
The
obligations of each Lender to make its initial Credit Extension under the
Original Credit Agreement are set forth in Section
4.01
of the
Original Credit Agreement.
4.01 Conditions
to
Effectiveness
(a) .
This
Agreement and the First Increased Revolving Credit Commitment shall become
effective when each of the conditions set forth below shall have been
satisfied:
(i) The
U.S.
Administrative Agent shall have received from each Loan Party, either (x)
a
counterpart of this Agreement signed on behalf of such party or (y) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Amendment) that such party
has
signed a counterpart of this Agreement;
(ii) The
U.S.
Administrative Agent shall have received signed counterparts (which need
not be
originals) of a consent to this Agreement from Lenders under the Original
Credit
Agreement constituting the Required Lenders under the Original Credit Agreement;
(iii) All
corporate and other proceedings taken or to be taken in connection with this
Agreement and all documents
incidental thereto, whether or not referred to herein, shall be satisfactory
in
form and substance to the Administrative Agent; and
(iv) The
U.S.
Administrative Agent shall have received an officer’s certificate from a duly
authorized officer of the U.S. Borrower stating that:
|
(x)
|
the
representations and warranties of each Borrower and each other
Loan Party
contained in Article
V
of
the Original Credit Agreement (immediately prior to the effectiveness
of
this Agreement), Article
V
of
this Agreement (immediately after the effectiveness of this Agreement)
or
any other Loan Document are true and correct in all material respects
on
and as of the Restatement Effective Date, 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
|
|
(y)
|
immediately
after the effectiveness of this Agreement, no Default or Event
of Default
has occurred and is continuing.
|
(v) The
U.S.
Administrative Agent shall have received from First Revolving Credit Commitment
Increase Lenders having First Increased Revolving Credit Commitments signed
copies of First Revolving Credit Commitment Increase Lender Addendum signed
by
the applicable First Revolving Credit Commitment Increase Lender, the U.S.
Administrative Agent and the U.S. Borrower for First Increased Revolving
Credit
Commitments of $100,000,000;
(vi) the
U.S.
Borrower shall cause the applicable U.S. Loan Parties to deliver the following
items to the U.S. Administrative Agent:
(A) with
respect to each Mortgage encumbering any Real Property, a mortgage amendment
(a
“Mortgage
Amendment”)
duly
executed and acknowledged by the applicable Loan Party, and in form for
recording in the recording office where each such Mortgage was recorded,
together with such certificates, affidavits, questionnaires or returns as
shall
be required in connection with the recording or filing thereof under applicable
law, in each case in form and substance reasonably satisfactory to the U.S.
Administrative Agent;
(B) with
respect to each Mortgage Amendment, an endorsement with respect to the existing
mortgage title insurance policy (collectively, the “Mortgage
Policy”)
relating to the Mortgage encumbering such Real Property assuring the U.S.
Administrative Agent that the Mortgage, as amended by the Mortgage Amendment
is
a valid and subsisting lien on such Real Property in favor of the U.S.
Administrative Agent for the benefit of the Secured Parties free and clear
of
all defects and encumbrances and liens except Permitted Encumbrances and
Permitted Liens (as defined in the applicable Mortgage), and such Mortgage
Policy shall otherwise be in form and substance reasonably satisfactory to
the
U.S. Administrative Agent; and
(C) with
respect to each Mortgage Amendment, opinions of local counsel to the Loan
Parties, which opinions (x) shall be addressed to the U.S. Administrative
Agent and each of the Lenders, (y) shall cover the enforceability of the
respective Mortgage as amended by the Mortgage Amendment and such other matters
incident to the transactions contemplated herein as the U.S. Administrative
Agent may reasonably request and (z) shall be in form and substance
reasonably satisfactory to the U.S. Administrative Agent;
(vii) The
Administrative Agent shall have received a legal opinion, in form and substance
reasonably satisfactory to the Administrative Agent, from Ropes & Xxxx LLP,
counsel to the U.S. Borrower;
(viii) 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 Restatement Effective Date, 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;
(ix) No
Default or Event of Default has occurred and is continuing;
(x) Nortek
International Holdings B.V. shall have pledged the Equity Interests of Broan
Nutone Canada Inc. to the Administrative Agent; and
(xi) The
U.S.
Administrative Agent shall have received the U.S. Borrower’s audited
consolidated financial statements for the year ended
December 31, 2005.
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 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 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
to
which such Person is a party is 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 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 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