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Exhibit 99.2
CREDIT AGREEMENT
dated as of
May 24, 2002
among
IKON OFFICE SOLUTIONS, INC.,
IOS CAPITAL, LLC,
IKON CAPITAL, PLC, and
IKON CAPITAL, INC.,
as Borrowers
The Lenders Party Hereto
▇.▇. ▇▇▇▇▇▇ BANK CANADA,
as Canadian Administrative Agent
and
JPMORGAN CHASE BANK,
as Administrative Agent
BANK OF AMERICA, N. A.,
DEUTSCHE BANK SECURITIES INC.,
and
WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Documentation Agents
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
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Table of Contents
Page
ARTICLE I Definitions..........................................................1
SECTION 1.01. Defined Terms...............................................1
SECTION 1.02. Terms Generally............................................26
SECTION 1.03. Accounting Terms...........................................27
ARTICLE II The Credits........................................................27
SECTION 2.01. Commitments................................................27
SECTION 2.02. Loans and Borrowings.......................................28
SECTION 2.03. Requests for Revolving Borrowings..........................29
SECTION 2.04. Swingline Loans............................................31
SECTION 2.05. US Letters of Credit.......................................32
SECTION 2.06. Canadian Letters of Credit.................................37
SECTION 2.07. Funding of Borrowings......................................41
SECTION 2.08. US$ Revolving Loan Interest Elections......................43
SECTION 2.09. Pounds Sterling UK Revolving Loan Interest Elections.......44
SECTION 2.10. Elections with Respect to Canadian Revolving Loans.........45
SECTION 2.11. Termination and Reduction of Commitments...................45
SECTION 2.12. Repayment of Loans; Evidence of Debt.......................46
SECTION 2.13. Prepayment of Loans........................................47
SECTION 2.14. Fees.......................................................48
SECTION 2.15. Interest...................................................49
SECTION 2.16. Alternate Rate of Interest.................................50
SECTION 2.17. Increased Costs............................................51
SECTION 2.18. Break Funding Payments.....................................52
SECTION 2.19. Taxes......................................................52
SECTION 2.20. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs...................................................54
SECTION 2.21. Mitigation Obligations; Replacement of Lenders.............56
SECTION 2.22. Bankers' Acceptances.......................................57
SECTION 2.23. Reallocation...............................................61
SECTION 2.24. Currency Fluctuations, etc.................................62
ARTICLE III Representations and Warranties....................................63
SECTION 3.01. Organization; Powers.......................................63
SECTION 3.02. Authorization; Enforceability..............................63
SECTION 3.03. Governmental Approvals; No Conflicts.......................64
SECTION 3.04. Financial Condition; No Material Adverse Change............64
SECTION 3.05. Properties.................................................64
SECTION 3.06. Litigation and Environmental Matters.......................65
SECTION 3.07. Compliance with Laws and Agreements........................65
SECTION 3.08. Investment and Holding Company Status......................65
SECTION 3.09. Taxes......................................................65
SECTION 3.10. ERISA......................................................65
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SECTION 3.11. Disclosure.................................................66
SECTION 3.12. Equal and Ratable Debt.....................................66
SECTION 3.13. Regulations T, U and X.....................................66
SECTION 3.14. Subsidiaries...............................................66
ARTICLE IV Conditions.........................................................67
SECTION 4.01. Effective Date.............................................67
SECTION 4.02. Each Credit Event..........................................69
ARTICLE V Affirmative Covenants...............................................69
SECTION 5.01. Financial Statements; Ratings Change and Other
Information................................................70
SECTION 5.02. Notices of Material Events.................................71
SECTION 5.03. Existence; Conduct of Business.............................71
SECTION 5.04. Payment of Obligations.....................................72
SECTION 5.05. Maintenance of Properties; Insurance.......................72
SECTION 5.06. Books and Records; Inspection Rights.......................72
SECTION 5.07. Compliance with Laws.......................................72
SECTION 5.08. Use of Proceeds and Letters of Credit......................72
SECTION 5.09. Continued Ownership of Each Subsidiary Borrower............73
SECTION 5.10. Additional Guarantors......................................73
ARTICLE VI Negative Covenants.................................................73
SECTION 6.01. Financial Condition Covenants..............................73
SECTION 6.02. Liens......................................................74
SECTION 6.03. Fundamental Changes........................................76
SECTION 6.04. Dispositions of Property...................................76
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions..77
SECTION 6.06. Restricted Payments........................................79
SECTION 6.07. Transactions with Affiliates...............................79
SECTION 6.08. Subsidiary Indebtedness....................................79
SECTION 6.09. Capital Expenditures.......................................80
SECTION 6.10. Sale, Discount of Receivables; Sale, Leaseback
Transactions...............................................80
SECTION 6.11. Optional Payments of Certain Debt Instruments..............80
SECTION 6.12. Ratings Trigger Events.....................................81
SECTION 6.13. Restrictive Agreements.....................................81
ARTICLE VII Events of Default.................................................82
ARTICLE VIII The Administrative Agent.........................................85
ARTICLE IX Miscellaneous......................................................87
SECTION 9.01. Notices....................................................87
SECTION 9.02. Waivers; Amendments........................................89
SECTION 9.03. Expenses; Indemnity; Damage Waiver.........................90
SECTION 9.04. Successors and Assigns.....................................91
SECTION 9.05. Survival...................................................95
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SECTION 9.06. Counterparts; Integration; Effectiveness...................95
SECTION 9.07. Severability...............................................95
SECTION 9.08. Right of Setoff............................................95
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process....................................................96
SECTION 9.10. WAIVER OF JURY TRIAL.......................................96
SECTION 9.11. Headings...................................................97
SECTION 9.12. Confidentiality............................................97
SECTION 9.13. Conversion of Currencies...................................97
SECTION 9.14. Designated Senior Indebtedness.............................98
SCHEDULES:
Schedule 2.01 Commitments
Schedule 2.05 Existing Letters of Credit
Schedule 3.06 Disclosed Matters
Schedule 3.12 Equal and Ratable Debt
Schedule 3.14-A Subsidiaries
Schedule 3.14-B Excluded Subsidiaries
Schedule 6.01 Eligible Asset Calculations
Schedule 6.02 Existing Liens
Schedule 6.05 Existing Loans and Advances
Schedule 6.08 Existing Subsidiary Indebtedness
Schedule 6.13 Existing Restrictive Agreements
EXHIBITS:
Exhibit A Form of Assignment and Assumption
Exhibit B Form of Opinion of Borrower's Counsel
Exhibit C-1 Form of Subsidiary Guarantee
Exhibit C-2 Form of Company Guarantee
Exhibit D Form of Bankers' Acceptance
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CREDIT AGREEMENT dated as of May 24, 2002, among IKON OFFICE
SOLUTIONS, INC., an Ohio corporation (the "Company"), IOS CAPITAL, LLC, a
Delaware limited liability company ("IOSC") (each of the Company and IOSC,
individually, a "US Borrower", and collectively, the "US Borrowers"), IKON
CAPITAL, PLC, an English company (the "UK Borrower"), and IKON CAPITAL, INC., a
Canadian corporation (the "Canadian Borrower") (each of the above, individually,
a "Borrower", and collectively, the "Borrowers"), the LENDERS party hereto, ▇.▇.
▇▇▇▇▇▇ BANK CANADA, as Canadian administrative agent (in such capacity, the
"Canadian Administrative Agent") and JPMORGAN CHASE BANK, as administrative
agent (in such capacity, the "Administrative Agent").
The parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms.
As used in this Agreement, the following terms have the
meanings specified below:
"ABR Loan" means a Loan the rate of interest applicable to
which is based upon the Alternate Base Rate.
"ABR Revolving Loan" means an ABR Loan which is a US$
Revolving Loan.
"Acceptance Fee" shall mean a fee payable in Canadian Dollars
by the Canadian Borrower to the Canadian Administrative Agent for the benefit of
a Canadian Lender with respect to the acceptance of a B/A, calculated on the
face amount of such B/A at the rate per annum equal to the Applicable Rate
therefor on the basis of the number of days in the applicable Contract Period
(inclusive of the first day and exclusive of the last day) and a year of 365
days.
"Additional US Commitments" means the commitment of each
Additional US Lender to make Additional US Revolving Loans to the US Borrowers
to the extent that its Canadian Commitment (or the Canadian Commitment of its
affiliate or branch that is a Canadian Lender) is reallocated pursuant to
Section 2.23, as such commitment may be (a) reduced or increased from time to
time by way of a further reallocation pursuant to Section 2.23, (b) reduced from
time to time pursuant to Section 2.11 and (c) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04.
"Additional US Lender" means each Canadian Lender (or the
affiliate or branch of such Canadian Lender that is a US Lender).
"Additional US Revolving Credit Exposure" means, with respect
to any Additional US Lender that agrees to make Additional US Revolving Loans,
the outstanding principal amount of such Lender's Additional US Revolving Loans
at such time.
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"Additional US Revolving Loan" means a Loan made under the
Additional US Commitments in accordance with Section 2.01 and 2.23.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate, plus with respect
to any UK Revolving Borrowing funded through a branch of any Lender which is
located in the United Kingdom, the rate certified by such Lender to the
Administrative Agent and the UK Borrower to represent the charges and reserves
required by the Bank of England and the Financial Services Authority with
respect to the portion of such UK Revolving Borrowing to be provided by such
Lender for such Interest Period.
"Administrative Agent" has the meaning assigned to such term
in the preamble to this Agreement.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified 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.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greatest of (a) the US$ Prime Rate in effect on such day, (b) the
Base CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate
due to a change in the US$ Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Facility Percentage" means, with respect to any
Lender under any Facility, the percentage of the total Commitments under such
Facility represented by such Lender's Commitment under such Facility. If the
Commitments under a Facility have terminated or expired, the Applicable
Percentages for such Facility shall be determined based upon the Commitments
under such Facility most recently in effect, giving effect to any assignments.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR
Loan, Eurocurrency Loan, C$ Prime Rate Loan or Bankers' Acceptance, or with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption "ABR/C$ Prime Rate
Spread", "Eurocurrency Spread/Acceptance Fee Rate" or "Commitment Fee Rate", as
the case may be, based upon the ratings by ▇▇▇▇▇'▇ and S&P, respectively,
applicable on such date to the Index Debt:
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Eurocurrency
Spread/Acceptance Commitment
Index Debt Ratings: ABR/ C$ Prime Rate Spread Fee Rate Fee Rate
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Category 1 0.250% 1.250% 0.250%
[greater than
or equal to]Baa1 and BBB+
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Category 2 0.500% 1.500% 0.300%
Baa2 or BBB
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Category 3 0.750% 1.750% 0.375%
Baa3 or BBB-
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Category 4 1.500% 2.500% 0.500%
=Ba1 or BB+
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For purposes of the foregoing, (i) if either ▇▇▇▇▇'▇ or S&P
shall not have in effect a rating for the Index Debt (other than by reason of
the circumstances referred to in the last sentence of this definition), then
such rating agency shall be deemed to have established a rating in Category 4;
(ii) if the ratings established or deemed to have been established by ▇▇▇▇▇'▇
and S&P for the Index Debt shall fall within different Categories, the
Applicable Rate shall be based on the lower of the two ratings; and (iii) if the
ratings established or deemed to have been established by ▇▇▇▇▇'▇ and S&P for
the Index Debt shall be changed (other than as a result of a change in the
rating system of ▇▇▇▇▇'▇ or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency, irrespective of
when notice of such change shall have been furnished by the Company to the
Administrative Agent and the Lenders pursuant to Section 5.01 or otherwise. Each
change in the Applicable Rate shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of ▇▇▇▇▇'▇ or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, the Company and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating
system or the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
"Approved Fund" has the meaning assigned to such term in
Section 9.04.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
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"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Bankers' Acceptance" and "B/A" shall mean a ▇▇▇▇ of exchange
denominated in Canadian Dollars drawn by the Canadian Borrower and accepted by a
Canadian Lender in accordance with this Agreement, including a depository ▇▇▇▇
issued in accordance with the Depository Bills and Notes Act (Canada).
"Bankers' Acceptances Exposure" shall mean at any time the
aggregate face amount of Canadian Revolving Borrowings which is outstanding by
way of B/As.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowers" has the meaning assigned to such term in the
preamble to this Agreement.
"Borrowing" means (a) Revolving Loans of the same Type under
the same Facility, made, converted or continued on the same date and, in the
case of Eurocurrency Loans, as to which a single Interest Period is in effect
(or Canadian Revolving Loans made through Bankers' Acceptances accepted and
purchased on the same date and as to which a single Contract Period is in
effect) or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, (a) when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the relevant currency in the
London interbank market, (b) when used in connection with a UK Loan, the term
"Business Day" shall also exclude any day on which commercial banks in London
are authorized or required by law to remain closed and (c) when used in
connection with a Canadian Loan, the term "Business Day" shall also exclude any
day on which banks are not open for business in Toronto, Canada.
"Calculation Date" means, with respect to Canadian Dollars or
Pounds Sterling, the last day of each calendar month (or, if such day is not a
Business Day, the next succeeding Business Day) and such other days from time to
time as the Canadian Administrative Agent or
5
the Administrative Agent, as applicable, shall designate as a "Calculation
Date"; provided that (a) the second Business Day preceding each date on which a
Canadian Revolving Borrowing or UK Revolving Borrowing is to be made or a
Canadian Letter of Credit is to be issued, and each date of any continuation of
any UK Revolving Loan shall also be a "Calculation Date" with respect to the
relevant currency and (b) the date of issuance or amendment of a Letter of
Credit in a Foreign Currency shall also be a "Calculation Date" with respect to
such Foreign Currency.
"Canadian Administrative Agent" has the meaning assigned to
such term in the preamble to this Agreement.
"Canadian B/A Borrowing" shall mean a Borrowing comprised of
Bankers' Acceptances.
"Canadian Borrower" has the meaning assigned to such term in
the preamble to this Agreement.
"Canadian Commitment" means, with respect to each Lender, the
commitment of such Lender, if any, to make Canadian Revolving Loans and to
acquire participations in Canadian Letters of Credit hereunder (based on the
Dollar Equivalent Amount thereof), as such commitment may be (a) reduced or
increased from time to time by way of a reallocation pursuant to Section 2.23,
(b) reduced from time to time pursuant to Section 2.11 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Canadian
Commitment, if any, is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Canadian
Commitment, as applicable. The initial aggregate amount of the Lenders' Canadian
Commitments is $15,000,000.
"Canadian Dollars" or "C$" refers to lawful money of Canada.
"Canadian Exchange Rate" means, on a particular date, the rate
at which Canadian Dollars may be exchanged into Dollars, determined by reference
to the Bank of Canada noon rate as published on the Reuters Screen page BOFC. In
the event that such rate does not appear on such Reuters page, the "Canadian
Exchange Rate" shall be determined by reference to any other means (as selected
by the Canadian Administrative Agent) by which such rate is quoted or published
from time to time by the Canadian Administrative Agent (in each case as in
effect at or about 12:00 Noon, Toronto time, on the Business Day immediately
preceding the relevant date of determination); provided that if at the time of
any such determination, for any reason, no such exchange rate is being quoted or
published, the Canadian Administrative Agent may use any reasonable method as it
deems appropriate to determine such rate, and such determination shall be
presumed correct absent manifest error.
"Canadian Issuing Bank" means any Canadian Lender, as
designated jointly by the Company and the Administrative Agent, in its capacity
as the issuer of Canadian Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.06(i). The Canadian Issuing Bank may, in
its discretion, arrange for one or more Canadian Letters of Credit to be issued
by Canadian Affiliates of the Canadian Issuing Bank, in which case the term
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"Canadian Issuing Bank" shall include any such Canadian Affiliate with respect
to Canadian Letters of Credit issued by such Affiliate.
"Canadian LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Canadian Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements with respect to
Canadian Letters of Credit that have not yet been reimbursed by or on behalf of
the Canadian Borrower at such time. The Canadian LC Exposure of any Canadian
Lender at any time shall be its Applicable Facility Percentage of the total
Canadian LC Exposure at such time.
"Canadian Lender" means each Lender that has a Canadian
Commitment or that holds Canadian Revolving Loans.
"Canadian Letter of Credit" means any letter of credit issued
under the Canadian Commitments pursuant to Section 2.06 of this Agreement.
"Canadian Revolving Borrowing" means a Borrowing of Canadian
Revolving Loans (including Canadian Revolving Loans made by way of acceptance
and purchase of Bankers' Acceptances).
"Canadian Revolving Credit Exposure" means, with respect to
any Canadian Lender at any time, the sum of the outstanding principal amount of
such Lender's Canadian Revolving Loans, including, without limitation, its
Bankers' Acceptances Exposure and its Canadian LC Exposure at such time.
"Canadian Revolving Loan" has the meaning assigned to such
term in Section 2.01(c); provided that, any reference in this Agreement to the
aggregate amount or principal amount of Canadian Revolving Loans or a Borrowing
of Canadian Revolving Loans made by way of Bankers' Acceptances shall be deemed
to refer to the applicable Bankers' Acceptances Exposure in connection
therewith.
"Capital Expenditures" means, for any period, with respect to
any Person, the aggregate of all expenditures by such Person and its
subsidiaries for the acquisition or leasing (pursuant to a capital lease) of
fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) that are required to be
capitalized under GAAP on a consolidated balance sheet of such Person and its
subsidiaries.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"C$ Prime Rate" means with respect to a Canadian Prime Rate
Loan, on any day, the greater of (a) the annual rate of interest announced from
time to time by the Canadian Administrative Agent as its reference rate then in
effect for determining interest rates on C$
7
denominated commercial loans in Canada and (b) the annual rate of interest equal
to the sum of (i) the CDOR Rate and (ii) 0.50% per annum.
"C$ Prime Rate Borrowing" means a Borrowing comprised of C$
Prime Rate Loans.
"C$ Prime Rate Loan" means a Canadian Revolving Loan the rate
of interest applicable to which is based upon the C$ Prime Rate.
"CDOR Rate" means on any date, (i) as used in the definition
of "C$ Prime Rate" in this Section, the per annum rate of interest which is the
rate based on the rate applicable to C$ bankers' acceptances for a term of 30
days appearing on the "Reuters Screen CDOR Page" (as defined in the
International Swap Dealer Association, Inc. definitions, as modified and amended
from time to time) (the "CDOR Page") on such date, or if such date is not a
Business Day, then on the immediately preceding Business Day, and (ii) as used
in the definition of "Discount Rate" in this Section, the per annum rate of
interest which is the rate based on the rate applicable to C$ bankers'
acceptances, having a term and face amount comparable to the term and face
amount of the Bankers' Acceptance being purchased on such date, appearing on the
CDOR Page at or about 10:00 a.m., Toronto time, on such date; provided, however,
that if no such rate appears on the CDOR Page as contemplated, then the CDOR
Rate on any date shall be calculated as the arithmetic mean of the rates for the
applicable term and amount referred to above applicable to C$ bankers'
acceptances quoted by the Schedule I Canadian Lenders as of 10:00 a.m., Toronto
time, on such date or, if such date is not a Business Day, then on the
immediately preceding Business Day.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
other than any pension or other benefit plan for officers, employees or
directors of the Company and the Subsidiaries, of Equity Interests representing
more than 20% of the aggregate ordinary voting power represented by the issued
and outstanding Equity Interests of the Company; or (b) occupation of a majority
of the seats (other than vacant seats) on the board of directors of the Company
by Persons who were neither (i) nominated by the board of directors of the
Company nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.17(b), by any lending office of such
Lender or by such Lender's or such Issuing Bank's holding company, if any) with
any request, guideline or directive (whether or not having the force of law) of
any Governmental Authority made or issued after the date of this Agreement.
"Claim" has the meaning assigned to such term in Article VII.
"Claims Class" has the meaning assigned to such term in
Article VII.
8
"CLO" has the meaning assigned to such term in Section 9.04.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, to the extent
applicable, its US Commitment, its UK Commitment, its Canadian Commitment and/or
its Additional US Commitment.
"Company" has the meaning assigned to such term in the
preamble to this Agreement.
"Company Guarantee" means the Guarantee Agreement to be
entered into by the Company with respect to the Obligations of the Subsidiary
Borrowers, substantially in the form of Exhibit C-2.
"Consolidated Assets" means the consolidated assets of the
Company and the Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Asset Test Ratio" means, at any date, the ratio
of (a) Test Assets at such date to (b) Total Debt at such date.
"Consolidated Interest Expense Ratio" means, for any period,
the ratio of (a) the sum of Corporate EBITDA for such period plus Finance EBITDA
for such period to (b) the sum of Finance Interest Expense for such period plus
Corporate Interest Expense for such period.
"Consolidated Net Worth" means, at any date, all amounts that
would, in conformity with GAAP, be included on a consolidated balance sheet of
the Borrower and its Subsidiaries under stockholders' equity at such date, plus
non-cash non-recurring charges incurred subsequent to June 30, 2002 and
excluding any adjustments resulting from the application of SFAS 133.
"Contract Period" means the term of a B/A selected by the
Canadian Borrower in accordance with Section 2.03(c) and Section 2.22 commencing
on the borrowing date, rollover date or conversion date, as the case may be, of
such B/A and expiring on a Business Day which shall be either 30 days, 60 days,
90 days or 180 days thereafter, or such other number of days thereafter as may
be agreed to by all Canadian Lenders, in all cases subject to availability,
provided that no Contract Period shall extend beyond the Maturity Date.
"Control" means the possession, directly or indirectly, 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.
"Corporate EBITDA" means, for any period, (a) Operating Income
for such period plus, without duplication and to the extent subtracted in
determining such income for such period, the sum of (i) depreciation and
amortization expense plus (ii) any extraordinary or non-recurring non-cash
expenses or losses plus (iii) for any period that includes the fiscal quarter of
9
the Company ended September 30, 2001, the non-recurring charges taken by the
Company in such quarter, and minus, (x) to the extent included in the Operating
Income for such period, any extraordinary or non-recurring income or gains and
(y) any cash payments made during such period in respect of items described in
clause (ii) above subsequent to the fiscal quarter in which the relevant
non-cash expenses or losses were reflected as a charge in the statement of
income, all as determined on a consolidated basis, minus (b) Finance EBITDA for
such period.
"Corporate Interest Expense" means for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
the Company and its Subsidiaries other than the Finance Subsidiaries for such
period with respect to all outstanding Indebtedness of the Company and such
Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing and net
costs under Swap Agreements in respect of interest rates to the extent such net
costs are allocable to such period in accordance with GAAP).
"Corporate Leverage Ratio" means, as at the last day of any
period, the ratio of (a) Total Corporate Debt on such day to (b) Corporate
EBITDA for such period.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Discount Proceeds" means for any B/A, an amount (rounded to
the nearest whole cent, and with one-half of one cent being rounded up)
calculated on the applicable borrowing date, rollover date or conversion date,
as the case may be, by dividing:
(i) the face amount of the B/A; by
(ii) the sum of one plus the product of:
a. the Discount Rate (expressed as a decimal) applicable
to such B/A, and
b. a fraction, the numerator of which is the number of
days in the Contract Period of the B/A (inclusive of the first
day and exclusive of the last day) and the denominator of
which is 365.
with such product being rounded up or down to the fifth
decimal place and .000005 being rounded up.
"Discount Rate" means (i) with respect to any Schedule I
Canadian Lender, as applicable to a Bankers' Acceptance being purchased by such
Schedule I Canadian Lender on any day, the CDOR Rate on such day for the
purchase of bankers' acceptances having a term and face amount comparable to the
term and face amount of such Bankers' Acceptance and (ii) with
10
respect to any Canadian Lender other than a Schedule I Canadian Lender, as
applicable to a Bankers' Acceptance being purchased by such Canadian Lender on
any day, the lesser of (x) the average (as determined by the Canadian
Administrative Agent) of the respective percentage discount rates (expressed to
two decimal places and rounded upward, if necessary, to the nearest 1/100th of
1%) quoted to the Canadian Administrative Agent by each Schedule II/III
Reference Canadian Lender as the percentage discount rate at which such Schedule
II/III Reference Canadian Lender would, in accordance with its normal practices,
at or about 10:00 a.m., Toronto time, on such day, be prepared to purchase
bankers' acceptances accepted by such Schedule II/III Reference Canadian Lender
having a term and a face amount comparable to the term and face amount of such
Bankers' Acceptance and (y) the rate that is 0.10% per annum in excess of the
rate determined pursuant to clause (i) of this definition in connection with the
relevant issuance of Bankers' Acceptances.
"Disposition" means, with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollar Equivalent Amount" means, on any date of
determination, with respect to any amount in Pounds Sterling or Canadian
Dollars, the equivalent in Dollars of such amount, determined by the
Administrative Agent or the Canadian Administrative Agent, as applicable, using
the Exchange Rate with respect to such Pounds Sterling or Canadian Dollars then
in effect, as determined pursuant to Section 2.24. With respect to any amount in
Dollars, the "Dollar Equivalent Amount" shall mean such amount.
"Dollars" or "$" refers to lawful money of the United States
of America.
"Domestic Subsidiary" means any Subsidiary organized under the
laws of any jurisdiction within the United States.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Eligible Assets" has the meaning assigned to such term on
Schedule 6.01, as such Schedule may be changed from time to time in accordance
with Section 6.01(d).
"Eligible Assets Ratio" means, at any date, the ratio of (a)
Eligible Assets at such date to (b) the aggregate principal amount of all Equal
and Ratable Debt at such date.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of
11
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.
"Equal and Ratable Debt" means the Indebtedness of the Company
and its Subsidiaries under the Loan Documents and any other Indebtedness of the
Company or any Subsidiary the governing documents for which prohibit the
creation of Liens on any material portion of Eligible Assets securing
Indebtedness for borrowed money without such Indebtedness being secured equally
and ratably with such Indebtedness for borrowed money.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurocurrency Loan" means a US$ Revolving Loan or UK Revolving
Loan the rate of interest applicable to which is based upon the Adjusted LIBO
Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
12
"Excluded Subsidiary" means (i) any special-purpose Subsidiary
which was formed to facilitate one or more Securitization Transactions and the
only business of which is its participation in such Securitization Transactions
and activities incidental thereto and (ii) any Foreign Subsidiary in respect of
which the guaranteeing by such Subsidiary of the obligations of the Borrowers
under this Agreement, could, in the good faith judgment of the Company, result
in adverse tax consequences to the Borrower. The Excluded Subsidiaries as of the
date hereof (other than any Immaterial Subsidiaries) are listed on Schedule
3.14-B.
"Excluded Taxes" means, with respect to the Administrative
Agent, the Canadian Administrative Agent, any Lender, any Issuing Bank or any
other recipient of any payment to be made by or on account of any obligation of
a Borrower hereunder, (a) income or franchise taxes imposed on (or measured by)
its income or profits by (x) in the case of the US Borrowers, the United States
of America, (y) in the case of the Canadian Borrower, Canada, and (z) in the
case of the UK Borrower, the UK, or in each case by the jurisdiction under the
laws of which such recipient is organized, domiciled, resident or doing business
or in which its principal office is located or, in the case of any Lender, in
which its applicable lending office is located, (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which a Lender is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 2.21(b)), any withholding tax that would be imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure to comply with Section 2.19(e), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from a Borrower with respect to such withholding tax pursuant to Section
2.19(a).
"Existing Issuing Bank" means Wachovia Bank, National
Association (formerly First Union National Bank), as issuer of the Existing
Letters of Credit.
"Existing Letters of Credit" means the letters of credit
issued and outstanding as of the date of this Agreement, listed on Schedule
2.05.
"Facility" means each of (a) the US Commitments and the
extensions of credit made thereunder, (b) the UK Commitments and the UK
Revolving Loans made thereunder, (c) the Canadian Commitments and the extensions
of credit made thereunder and (d) the Additional US Commitments and the
Additional US Revolving Loans made thereunder.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
13
"Finance EBITDA" means, for any period, (a) Finance Income for
such period minus (b) Finance Interest Expense for such period.
"Finance Income" means, for any period, the finance income of
the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP and calculated in a manner consistent with the calculation
of finance income in the consolidated financial statements of IOSC contained in
its Annual Report on Form 10-K for the 2001 fiscal year as reflected in the
Information Memorandum.
"Finance Interest Expense" means for any period, total cash
interest expense (including that attributable to Capital Lease Obligations) of
the Finance Subsidiaries for such period with respect to all outstanding
Indebtedness of the Finance Subsidiaries (including all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP).
"Finance Subsidiaries" means each of IOSC, the UK Borrower and
the Canadian Borrower and their respective subsidiaries, and other Subsidiaries
the primary business of which is the leasing or other financing of products
distributed by the Company and its Subsidiaries.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Company.
"Foreign Lender" means any Lender (including a Lender acting
in the capacity of an Issuing Bank) under a Facility that is organized under the
laws of a jurisdiction other than that in which the applicable Borrower under
such Facility is located. For purposes of this definition, (a) the United States
of America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction, and (b) Canada and each province and territory
thereof shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary": any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles in the
United States as in effect from time to time, except that for purposes of
Section 6.01, GAAP shall be determined on the basis of such principles in effect
on the date hereof and consistent with those used in the preparation of the most
recent audited financial statements referred to in Section 4.01(j). In the event
that any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement (including, for the avoidance of doubt, the
calculation of Eligible Assets and Test Assets), then the Company and the
Administrative Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to reflect equitably such Accounting Changes
with the desired result that the criteria for evaluating the Company's financial
condition shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall have been
executed and delivered by the Company, the Administrative Agent and the Required
Lenders, all financial covenants, standards and terms in this Agreement shall
continue to be calculated or construed as if such Accounting Changes had
14
not occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Immaterial Subsidiary" means any Subsidiary with assets
representing less than 0.50% of Consolidated Assets, provided that, in the
aggregate, the Immaterial Subsidiaries shall represent no more than 5% of
Consolidated Assets. In the event that, at any time, Immaterial Subsidiaries
would otherwise represent in the aggregate more that 5% of Consolidated Assets,
then (i) the domestic Subsidiary then qualifying as an Immaterial Subsidiary
which represents at such time the largest percentage of Consolidated Assets
shall cease to qualify as an Immaterial Subsidiary and (ii) domestic
Subsidiaries will be deemed disqualified as Immaterial Subsidiaries in
descending order of the percentage such Subsidiaries represent of Consolidated
Assets, until the condition set forth in the proviso to the immediately
preceding sentence is met.
"Improved Ratings Condition" means the condition that both (a)
the Index Debt shall be rated at least BBB (stable) by S&P and Baa2 (stable) by
▇▇▇▇▇'▇ and (b) the senior, unsecured, short-term indebtedness of the Company
that is not guaranteed by any other Person or
15
subject to any other credit enhancement shall be rated at least A-2 (stable) by
S&P and P-2 (stable) by ▇▇▇▇▇'▇.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding accounts
payable and deferred revenue incurred in the ordinary course of business), (f)
all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information
Memorandum dated March 2002 relating to the Borrowers and the Transactions
(including the annual and quarterly reports and other materials incorporated
therein).
"Interest Election Request" means a request by a Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.08, 2.09
or 2.10.
"Interest Payment Date" means (a) with respect to any ABR
Revolving Loan or C$ Prime Rate Loan, the last day of each March, June,
September and December, (b) with respect to any Eurocurrency Loan, the last day
of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months' duration, each day prior to the last day of such Interest
Period that occurs at intervals of three months' duration after the first day of
such Interest Period, and (c) with respect to any Swingline Loan, the day that
such Loan is required to be repaid.
"Interest Period" means with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender,
16
nine or twelve months) thereafter, as the Borrower may elect; provided, that (i)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless, in
the case of a Eurocurrency Borrowing only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day and (ii) any Interest Period pertaining
to a Eurocurrency Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last
Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such
Borrowing.
"IOSC" has the meaning assigned to such term in the preamble
to this Agreement.
"IOSC Notes" the $250,000,000 aggregate principal amount of
9.75% Notes due 2004 of IOSC, which are governed by the Indenture, dated as of
June 30, 1995, between IOSC and Chemical Bank (now JPMorgan Chase Bank), as
supplemented by the First Supplemental Indenture and Second Supplemental
Indenture thereto.
"Issuing Bank" means each of the US Issuing Bank and the
Canadian Issuing Bank.
"LC Disbursement" means a payment made by an Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means any US LC Exposure and any Canadian LC
Exposure.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any US Letter of Credit and any
Canadian Letter of Credit.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate appearing on the applicable page of the Dow
▇▇▇▇▇ Market Service (or on any successor or substitute page of such Service, or
any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits in the applicable
currency in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for deposits in Dollars or Pounds Sterling, as applicable, with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurocurrency Borrowing for such Interest Period shall be the rate at which
Dollar deposits of $5,000,000 or
17
Pounds Sterling deposits of (pound)5,000,000, as applicable, and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Subsidiary
Guarantee and the Company Guarantee.
"Loan Parties" means each of the Borrowers and the Subsidiary
Guarantors.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement, including the acceptance and purchase of B/As by
Canadian Lenders, as applicable.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, property, operations or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan Documents
or the rights or remedies of the Administrative Agent, the Canadian
Administrative Agent or the Lenders hereunder or thereunder.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Swap
Agreements, of any one or more of the Company and its Subsidiaries in an
aggregate principal amount exceeding $15,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Company
or any Subsidiary in respect of any Swap Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Company or such Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.
"Maturity Date" means May 24, 2005; provided that if, on or
prior to December 15, 2003, (a) the Company shall not have satisfied the
Improved Ratings Condition and (b) the $250,000,000 of the Company's 9.75% Notes
due 2004 shall not have been redeemed or defeased in full, then the "Maturity
Date" shall be December 15, 2003.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"1996 Capital Support Agreement" means the Capital Support
Agreement, dated as of October 22, 1996, between the Company (formerly Alco
Standard Corporation) and IOSC (formerly IKON Capital, Inc.), as amended to the
date hereof.
18
"Obligations" means, with respect to any Borrower, the unpaid
principal of and interest on (including interest accruing after the maturity of
the Loans and reimbursement obligations in respect of LC Disbursements and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
such Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans and all other obligations and
liabilities of such Borrower to the Administrative Agent or to any Lender (or,
in the case of Specified Swap Agreements, any affiliate of any Lender), whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document, the Letters of Credit, any
Specified Swap Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including all
fees, charges and disbursements of counsel to the Administrative Agent or to any
Lender that are required to be paid by such Borrower pursuant hereto) or
otherwise. Unless otherwise specified, "Obligations" shall refer to the
Obligations of all Borrowers.
"Operating Income" means, for any period, the operating income
of the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP and calculated in a manner consistent with the calculation
of operating income in the consolidated financial statements of the Company
contained in its 2001 Annual Report.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Acquisition" means any acquisition of all or a
portion of the assets or Equity Interests of any Person that constitutes a
business engaged primarily in the same business in which the Company and its
Subsidiaries are engaged on the date of this Agreement or a business reasonably
related thereto, provided that (a) such acquisition is approved by the board of
directors (or a majority of holders of the capital stock of such Person) of the
Person whose assets or capital stock are being acquired pursuant to such
acquisition, (b) no Default or Event of Default has then occurred and is
continuing or would result therefrom, (c) the requirements of Section 6.01 shall
be satisfied by the Company and its Subsidiaries on a pro forma combined basis
as at the end of the most recently ended fiscal quarter of the Company for which
financial statements have been delivered pursuant to Section 6.01 hereto if each
such acquisition had been completed on or prior to the first day of the four
fiscal quarter period ended with such most recently ended fiscal quarter
(excluding in such pro forma calculation any extraordinary or non-recurring
items related to such acquisition), (d) such acquisition shall not result in
reduced EBITDA of the Company and its Subsidiaries on a pro forma combined basis
(as compared to consolidated EBITDA of the Company and its Subsidiaries without
giving effect to such
19
acquisition) for the same four fiscal quarter period measured pursuant to clause
(c) above (excluding in such pro forma calculation any extraordinary or
non-recurring items related to such acquisition), and (e) after giving effect to
any Borrowings hereunder in connection with such acquisition, the aggregate
Borrowings hereunder incurred to finance all such acquisitions from and after
the Effective Date shall not exceed $30,000,000.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due
or are being contested in compliance with Section 5.04;
(b) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are
being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation,
unemployment insurance and other social security laws or
regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article
VII; and
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure
any monetary obligations and do not materially detract from
the value of the affected property or interfere with the
ordinary conduct of business of the Company or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by,
the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and
credit of the United States of America), the Federal National
Mortgage Association, the Federal Home Loan Bank, the
Government National Mortgage Association or any Farm Credit
Bank, in each case maturing within one year from the date of
acquisition thereof;
20
(b) investments in commercial paper maturing within 270
days from the date of acquisition thereof and having, at such
date of acquisition, the highest credit rating obtainable from
S&P or from Moody's;
(c) investments in domestic and eurodollar certificates
of deposit, banker's acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit
accounts issued or offered by (w) any domestic office of any
commercial bank organized or licensed under the laws of the
United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less
than $500,000,000, (x) any Lender, (y) any branch of any
Lender or any commercial bank organized under the laws of the
United Kingdom or Canada having combined capital, surplus and
undivided profits (less any undivided losses) of not less than
$500,000,000 or (z) other than in the case of banker's
acceptances, any domestic commercial bank whose deposits are
guaranteed by the Federal Deposit Insurance Corporation (or
any successor) and with whom deposits maintained by the
Company or any of its Subsidiaries do not exceed the amount so
guaranteed;
(d) fully collateralized repurchase agreements with a
term of not more than 30 days for securities described in
clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above; and
(e) money market funds that (i) comply with the criteria
set forth in Securities and Exchange Commission Rule 2a-7
under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody's and (iii) have portfolio assets of
at least $5,000,000,000.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pounds Sterling" or "(pound)" refers to lawful money of the
United Kingdom.
"Pounds Sterling Exchange Rate" means, on a particular date,
the rate at which Pounds Sterling may be exchanged into Dollars, as set forth at
approximately 11:00 a.m., London time, on such date on the applicable Reuters
World Currency Page. In the event that such rate does not appear on any Reuters
World Currency page, the "Pounds Sterling Exchange Rate" shall be determined by
reference to any other means (as selected by the Administrative Agent) by which
such rate is quoted or published from time to time by the Administrative Agent
(in each case as in effect at or about 12:00 Noon, London time, on the Business
Day immediately preceding the relevant date of determination); provided that if
at the time of any such
21
determination, for any reason, no such exchange rate is being quoted or
published, the Administrative Agent may use any reasonable method as it deems
appropriate to determine such rate, and such determination shall be presumed
correct absent manifest error.
"Pounds Sterling UK Revolving Loan" has the meaning assigned
to such term in Section 2.01(b).
"Prepay" means to make or offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of or otherwise
optionally or voluntarily defease or segregate funds with respect to
Indebtedness. "Prepayment" shall have a corresponding meaning.
"Private Placement Notes" means the $55,000,000 aggregate
principal amount of 7.15% Series A Senior Notes of the Company, governed by the
Notes Purchase Agreement dated as of September 15, 1995.
"Ratings Trigger Event" has the meaning ascribed to such term
in Section 4.01(i).
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing at least 51% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time.
"Reset Date" has the meaning assigned to such term in Section
2.24.
"Restricted Indebtedness" means any Indebtedness for borrowed
money of the Company or any Subsidiary other than (a) such Indebtedness of the
Company to any Subsidiary and of any Subsidiary to the Company or any other
Subsidiary and (b) the Company's 9.75% Notes due 2004.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Company or any 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, acquisition, cancellation or
termination of any such Equity Interests in the Company or any option, warrant
or other right to acquire any such Equity Interests in the Company.
"Revolving Borrowing" means a Borrowing of Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans, including, in the case of a Canadian Lender, its Bankers'
Acceptances Exposure, and its LC Exposure and Swingline Exposure at such time.
22
"Revolving Loans" means, collectively, US Revolving Loans, UK
Revolving Loans, Canadian Revolving Loans and Additional US Revolving Loans.
"S&P" means Standard & Poor's.
"Schedule I Canadian Lender" means any Canadian bank named on
Schedule I to the Bank Act (Canada).
"Schedule II/III Canadian Lender" means any bank named on
Schedule II or Schedule III to the Bank Act (Canada).
"Schedule II/III Reference Canadian Lenders" means ▇.▇. ▇▇▇▇▇▇
Bank Canada and Bank of America, N.A., Canada Branch.
"Scheduled Canadian Lender" means any Schedule I Canadian
Lender or Schedule II/III Canadian Lender.
"Securitization Agreements" means the agreements governing
revolving Securitization Transactions to which the Subsidiary Borrowers are
parties.
"Securitization Transaction" means with respect to the Company
and its Subsidiaries the transfer or pledge of assets or interests in assets to
a trust, partnership, corporation or other entity, directly or indirectly, which
transfer or pledge is funded by such entity in whole or in part by borrowings or
the issuance of instruments or securities that are paid principally from the
cash flow derived from such assets or interests in assets.
"Specified Swap Agreement" means any Swap Agreement entered
into by a Borrower and any Lender or affiliate thereof in respect of interest
rates.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in Dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial
23
statements if such financial statements were prepared in accordance with GAAP as
of such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries of
the parent.
"Subsidiary" means any subsidiary of the Company.
"Subsidiary Borrowers" means IOSC, the UK Borrower and the
Canadian Borrower.
"Subsidiary Guarantee" means the Guarantee Agreement to be
entered into by each Subsidiary Guarantor in respect of the Obligations of the
Borrowers, substantially in the form of Exhibit C-1.
"Subsidiary Guarantor" means each Subsidiary other than any
Excluded Subsidiary.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Company or the Subsidiaries shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Facility Percentage
of the total Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, in its capacity
as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Test Assets" means, on any date, the sum of, without
duplication, (a) accounts receivables, less allowances, (b) finance receivables,
net, (c) inventories and (d) long-term finance receivables, net; all as reported
on the consolidated balance sheets of the Company in accordance with GAAP and
calculated in a manner consistent with the calculation of such items in the
consolidated financial statements of the Company contained in its 2001 Annual
Report.
24
"Three-Month Secondary CD Rate" means, for any day, the
secondary market rate for three-month certificates of deposit reported as being
in effect on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day) or, if such rate is not so reported on such
day or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Total Corporate Debt" means, at any date, (a) Total Debt at
such date minus (b) the aggregate principal amount of all Indebtedness of the
Finance Subsidiaries at such date, determined in accordance with GAAP.
"Total Debt" means, at any date, the aggregate principal
amount of all Indebtedness of the Company and its Subsidiaries at such date (but
excluding obligations described in clause (i) of the definition of Indebtedness
with respect to letters of credit which support obligations that do not
constitute Indebtedness hereunder), determined on a consolidated basis in
accordance with GAAP.
"Transactions" means the execution, delivery and performance
by the Loan Parties of this Agreement and the other Loan Documents, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"Turbo Provision" has the meaning assigned to such term in
Section 4.01(i).
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate; provided that when "Type" is used in reference to any
Canadian Revolving Loan or Borrowing, "Type" refers to whether (x) such Loan is
a C$ Prime Rate Loan or such Borrowing consists of C$ Prime Rate Loans or (y)
such Loan is made by acceptance and purchase of a Bankers' Acceptance or such
Borrowing is comprised of Bankers' Acceptances.
"UK Borrower" has the meaning assigned to such term in the
preamble to this Agreement.
"UK Commitment" means, with respect to each Lender, the
commitment of such Lender, if any, to make UK Revolving Loans hereunder (based
on the Dollar Equivalent Amount thereof), as such commitment may be (a) reduced
or increased from time to time by way of a reallocation pursuant to Section
2.23, (b) reduced from time to time pursuant to Section 2.11 and (c) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's UK Commitment, if
any, is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant
to which such Lender shall have
25
assumed its UK Commitment, as applicable. The initial aggregate amount of the
Lenders' UK Commitments is $60,000,000.
"UK Lender" means each Lender that has a UK Commitment or that
holds UK Revolving Loans (or, with respect to US$ UK Revolving Loans, if
applicable, the Affiliate or branch of such UK Lender that is a US Lender).
"UK Revolving Borrowing" means a Borrowing of UK Revolving
Loans.
"UK Revolving Credit Exposure" means, with respect to any UK
Lender at any time, the outstanding principal amount of such Lender's UK
Revolving Loans at such time.
"UK Revolving Loan" has the meaning assigned to such term in
Section 2.01(b).
"US Borrowers" has the meaning assigned to such term in the
preamble to this Agreement.
"US Commitment" means, with respect to each Lender, the
commitment of such Lender, if any, to make US Revolving Loans and to acquire
participations in US Letters of Credit and Swingline Loans hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.11 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's US
Commitment, if any, is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its US Commitment,
as applicable. The initial aggregate amount of the Lenders' US Commitments is
$225,000,000. The Additional US Commitments from time to time shall be in
addition to the US Commitments.
"US Issuing Bank" means JPMorgan Chase Bank, in its capacity
as the issuer of US Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.05(i) (except that with respect to the
Existing Letters of Credit only, "US Issuing Bank" shall mean Wachovia Bank,
National Association (formerly First Union National Bank). The US Issuing Bank
may, in its discretion, arrange for one or more US Letters of Credit to be
issued by Affiliates of the US Issuing Bank, in which case the term "US Issuing
Bank" shall include any such Affiliate with respect to US Letters of Credit
issued by such Affiliate.
"US LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding US Letters of Credit at such time
plus (b) the aggregate amount of all LC Disbursements with respect to US Letters
of Credit that have not yet been reimbursed by or on behalf of the applicable US
Borrower at such time. The US LC Exposure of any US Lender at any time shall be
its Applicable Facility Percentage under the US Commitments of the total US LC
Exposure at such time.
"US Lender" means each Lender that has a US Commitment or that
holds US Revolving Loans.
"US Letter of Credit" means any Existing Letter of Credit and
any letter of credit issued under the US Commitments pursuant to Section 2.05 of
this Agreement.
26
"US Revolving Credit Exposure" means, with respect to any US
Lender at any time, the sum of the outstanding principal amount of such Lender's
US Revolving Loans and its US LC Exposure and Swingline Exposure at such time.
"US Revolving Loan" has the meaning assigned to such term in
Section 2.01(a).
"US$ Lender" means each US Lender, each Additional US Lender
and each US$ UK Lender.
"US$ Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan Chase Bank as its prime rate in effect
at its principal office in New York City; each change in the US$ Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"US$ Revolving Borrowing" means a Borrowing of US$ Revolving
Loans.
"US$ Revolving Loan" means a US Revolving Loan, an Additional
US Revolving Loan or a US$ UK Revolving Loan.
"US$ UK Revolving Loan" has the meaning assigned to such term
in Section 2.01(b).
"Wholly Owned Subsidiary" means a Subsidiary in which not more
than 2% of the Equity Interests are owned by Persons other than the Company and
the Subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) except as otherwise
provided herein, any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
27
SECTION 1.03. Accounting Terms. As used herein and in the
other Loan Documents, and any certificate or other document made or delivered
pursuant hereto or thereto, all terms of an accounting or financial nature not
defined herein or therein shall have the respective meanings given to them under
GAAP.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions set forth herein, each US Lender agrees to make Revolving Loans
denominated in Dollars ("US Revolving Loans") to the US Borrowers from time to
time during the Availability Period in an aggregate principal amount for all US
Borrowers that will not result in (a) such US Lender's US Revolving Credit
Exposure exceeding such Lender's US Commitment or (b) the total US Revolving
Credit Exposures exceeding the total US Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the US Borrowers may
borrow, prepay and reborrow US Revolving Loans.
(b) Subject to the terms and conditions set forth herein, each
UK Lender agrees to make (i) Revolving Loans denominated in Pounds Sterling
("Pounds Sterling UK Revolving Loans") to the UK Borrower and (ii) UK Revolving
Loans denominated in Dollars ("US$ UK Revolving Loans"; together with the Pounds
Sterling UK Revolving Loans, the "UK Revolving Loans") to the US Borrowers, in
each case from time to time during the Availability Period in an aggregate
principal amount for all such Borrowers that will not result in (a) the Dollar
Equivalent Amount of such UK Lender's UK Revolving Credit Exposure exceeding
such Lender's UK Commitment or (b) the Dollar Equivalent Amount of the total UK
Revolving Credit Exposures exceeding the total UK Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
UK Borrower and the US Borrowers, as applicable, may borrow, prepay and reborrow
UK Revolving Loans.
(c) Subject to the terms and conditions set forth herein, each
Canadian Lender agrees to make Revolving Loans denominated in Canadian Dollars
("Canadian Revolving Loans") to the Canadian Borrower from time to time during
the Availability Period in an aggregate principal amount that will not result in
(a) the Dollar Equivalent Amount of such Lender's Canadian Revolving Credit
Exposure exceeding such Lender's Canadian Commitment or (b) the Dollar
Equivalent Amount of the total Canadian Revolving Credit Exposures exceeding the
total Canadian Commitments. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Canadian Borrower may borrow, prepay and
reborrow Canadian Revolving Loans.
(d) Subject to the terms and conditions set forth herein, each
Additional US Lender agrees to make Additional US Revolving Loans to the US
Borrowers from time to time during the Availability Period in an aggregate
principal amount for all US Borrowers that will not result in (a) such Lender's
Additional US Revolving Credit Exposure exceeding such Lender's Additional US
Commitment or (b) the total Additional US Revolving Credit Exposures
28
exceeding the total Additional US Commitments. Within the foregoing limits and
subject to the terms and conditions set forth herein, the US Borrowers may
borrow, prepay and reborrow Additional US Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders under the relevant Facility ratably in accordance with their respective
Commitments under such Facility. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Each US$ Revolving Borrowing shall be comprised entirely
of ABR Loans or Eurocurrency Loans denominated in Dollars as the applicable US
Borrower may request in accordance herewith. Each UK Revolving Borrowing
denominated in Pounds Sterling shall be comprised entirely of Eurocurrency
Loans. Each Canadian Revolving Borrowing shall be comprised entirely of C$ Prime
Rate Loans or Bankers' Acceptances denominated in Canadian Dollars as the
Canadian Borrower may request in accordance herewith. Each Swingline Loan shall
be an ABR Loan. Each Lender at its option may make any Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) (i) At the commencement of each Interest Period for any
US$ Revolving Borrowing comprised of Eurocurrency Loans, such US$ Revolving
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. At the time that each US$ Revolving
Borrowing comprised of ABR Loans is made, such US$ Revolving Borrowing shall be
in an aggregate amount that is an integral multiple of $100,000 and not less
than $1,000,000; provided that a US$ Revolving Borrowing of ABR Loans may be in
an aggregate amount that is equal to the entire unused balance of the total US
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in
an amount that is an integral multiple of $100,000 and not less than $1,000,000.
(ii) At the commencement of each Interest Period for any UK
Revolving Borrowing denominated in Pounds Sterling, such UK Revolving Borrowing
shall be in an aggregate amount that is an integral multiple of (pound)1,000,000
and not less than (pound)5,000,000; provided that a UK Revolving Borrowing
denominated in Pounds Sterling may be in an aggregate amount the Dollar
Equivalent Amount of which equals the entire unused balance of the total UK
Commitments.
(iii) At the time that each Canadian Revolving Borrowing is
made, such Canadian Revolving Borrowing shall be in an aggregate that is an
integral multiple of C$1,000,000 and not less than C$5,000,000; provided that a
Canadian Revolving Borrowing of C$ Prime Rate Loans may be in an aggregate
amount that is equal to the entire unused balance of the total Canadian
Commitments.
29
(iv) Borrowings of more than one Type may be outstanding at
the same time; provided that there shall not at any time be more than a total of
12 Borrowings of Eurocurrency Loans or 6 Borrowings of Bankers' Acceptances
outstanding.
(d) Notwithstanding any other provision of this Agreement, (i)
no Borrower shall be entitled to request, or to elect to convert or continue,
any Borrowing of Eurocurrency Loans if the Interest Period requested with
respect thereto would end after the Maturity Date and (ii) the Canadian Borrower
shall not be entitled to request any Canadian Revolving Borrowing of Bankers'
Acceptances if the Contract Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. (a) To
request a US$ Revolving Borrowing, the applicable US Borrower shall notify New
York office of the Administrative Agent of such request by telephone (i) in the
case of a US$ Revolving Borrowing comprised of Eurocurrency Loans, not later
than 11:00 a.m., New York City time, three Business Days before the date of the
proposed US$ Revolving Borrowing or (ii) in the case of a US$ Revolving
Borrowing comprised of ABR Loans, not later than 11:00 a.m., New York City time,
on the date of the proposed US$ Revolving Borrowing; provided that any such
notice of a US$ Revolving Borrowing of ABR Loans to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e) may be given not later
than 11:00 a.m., New York City time, on the date of the proposed US$ Revolving
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested US$ Revolving
Borrowing;
(ii) the date of such US$ Revolving Borrowing, which
shall be a Business Day;
(iii) the applicable Facility under which such US$
Revolving Borrowing is to be made (such Borrowing to consist
of US Revolving Loans unless otherwise specified);
(iv) whether such US$ Revolving Borrowing is to be a
Borrowing of ABR Loans or Eurocurrency Loans;
(v) in the case of a US$ Revolving Borrowing of
Eurocurrency Loans, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the applicable US
Borrower's account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.07.
If no election as to the Type of US$ Revolving Borrowing is specified, then the
requested US$ Revolving Borrowing shall be a Borrowing of ABR Loans. If no
Interest Period is specified with respect to any requested Borrowing of
Eurocurrency Loans, then the applicable US Borrower shall be deemed to have
selected an Interest Period of one month's duration.
30
(b) To request a UK Revolving Borrowing denominated in Pounds
Sterling, the UK Borrower shall notify the London office of the Administrative
Agent of such request by telephone not later than 11:00 a.m., London time, three
Business Days before the date of the proposed UK Revolving Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested UK Revolving
Borrowing;
(ii) the date of such UK Revolving Borrowing, which shall
be a Business Day;
(iii) the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(iv) the location and number of the UK Borrower's account
to which funds are to be disbursed, which shall comply with
the requirements of Section 2.07.
If no Interest Period is specified with respect to any requested UK Revolving
Borrowing denominated in Pounds Sterling, then the UK Borrower shall be deemed
to have selected an Interest Period of one month's duration.
(c) To request a Canadian Revolving Borrowing, the Canadian
Borrower shall notify the Canadian Administrative Agent of such request by
telephone (a) in the case of a Canadian Revolving Borrowing comprised of
Bankers' Acceptances, not later than 11:00 a.m., Toronto time, three Business
Days before the date of the proposed Canadian Revolving Borrowing or (b) in the
case of a Canadian Revolving Borrowing comprised of C$ Prime Rate Loans, not
later than 11:00 a.m., Toronto time, one Business Day before the date of the
proposed Canadian Revolving Borrowing; provided that any such notice of Canadian
Revolving Borrowing of C$ Prime Rate Loans to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.06(e) may be given not later than
10:00 a.m., Toronto time, on the date of the proposed Canadian Revolving
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Canadian
Administrative Agent of a written Borrowing Request in a form approved by the
Canadian Administrative Agent and signed by the Borrower. Each such telephonic
and written Borrowing Request shall specify the following information in
compliance with Section 2.02:
(i) the aggregate amount of the requested Canadian
Revolving Borrowing;
(ii) the date of such Canadian Revolving Borrowing, which
shall be a Business Day;
(iii) whether such Canadian Revolving Borrowing is to be
a Borrowing of C$ Prime Rate Loans or Borrowing by way of
Bankers' Acceptances;
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(iv) in the case of a Borrowing by way of Bankers'
Acceptances, the Contract Period to be applicable thereto,
which shall be a period contemplated by the definition of the
term "Contract Period"; and
(v) the location and number of the Canadian Borrower's
account to which funds are to be disbursed, which shall comply
with the requirements of Section 2.07.
If no election as to the Type of Canadian Revolving Borrowing is specified, then
the requested Canadian Revolving Borrowing shall be a Borrowing of C$ Prime Rate
Loans. If no Contract Period is specified with respect to any requested
Borrowing by way of Bankers' Acceptances, then the Canadian Borrower shall be
deemed to have selected a Contract Period of 30 days' duration.
(d) Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each
applicable Lender of the details thereof and of the amount of such Lender's Loan
to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the US Borrowers from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding for all US Borrowers that
will not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $5,000,000 or (ii) the total US Revolving Credit Exposures
exceeding the total US Commitments; provided that the Swingline Lender shall not
be required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the US Borrowers may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, a US Borrower shall notify
the Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 12:00 noon, New York City time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from the Borrower. The Swingline Lender shall
make each Swingline Loan available to the applicable US Borrower by means of a
credit to the general deposit account of such US Borrower with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(e), by remittance to the Issuing
Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline
Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the US Lenders to acquire participations on such Business
Day in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which US Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each US Lender, specifying in such notice such US
Lender's Applicable Percentage of such Swingline Loan or Loans. Each US Lender
hereby absolutely and
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unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such US Lender's
Applicable Percentage of such Swingline Loan or Loans. Each US Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the US Commitments,
and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each US Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available funds,
in the same manner as provided in Section 2.07 with respect to US Revolving
Loans made by such US Lender (and Section 2.07 shall apply, mutatis mutandis, to
the payment obligations of the US Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the US
Lenders. The Administrative Agent shall notify the applicable US Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from a US Borrower (or other party on behalf of such US
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the US Lenders
that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear; provided that any such payment
so remitted shall be repaid to the Swingline Lender or to the Administrative
Agent, as applicable, if and to the extent such payment is required to be
refunded to the applicable US Borrower for any reason. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
a US Borrower of any default in the payment thereof.
SECTION 2.05. US Letters of Credit. (a) General. Prior to the
Effective Date, the Existing Issuing Bank has issued Existing Letters of Credit
that, from and after the Effective Date, shall constitute US Letters of Credit
hereunder. Subject to the terms and conditions set forth herein, a US Borrower
may request the issuance of US Letters of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and the US Issuing Bank, at
any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of credit application or other
agreement submitted by a US Borrower to, or entered into by a US Borrower with,
the US Issuing Bank relating to any US Letter of Credit, the terms and
conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a US Letter of Credit (or the amendment,
renewal or extension of an outstanding US Letter of Credit), a US Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the US Issuing Bank) to the US
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a US Letter of Credit, or identifying the US Letter of Credit to
be amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such US
Letter of Credit is to expire (which shall comply with
33
paragraph (c) of this Section), the amount of such US Letter of Credit, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such US Letter of Credit. If
requested by the US Issuing Bank, the applicable US Borrower also shall submit a
letter of credit application on the US Issuing Bank's standard form in
connection with any request for a US Letter of Credit. A US Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each US Letter of Credit the applicable US
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the US LC Exposure shall not
exceed $50,000,000 and (ii) the total US Revolving Credit Exposures shall not
exceed the total US Commitments. Notwithstanding anything to the contrary
contained in this Section 2.05, the Company shall not renew or extend any
Existing Letter of Credit.
(c) Expiration Date. Each US Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such US Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and (ii)
the date that is five Business Days prior to the Maturity Date; provided that a
US Letter of Credit may provide for automatic renewals for additional periods of
up to one year, subject to a right on the part of the US Issuing Bank to prevent
any such renewal from occurring by giving notice to the beneficiary during a
period satisfactory to the Administrative Agent.
(d) Participations. By the issuance of a US Letter of Credit
(or an amendment to a US Letter of Credit increasing the amount thereof) and
without any further action on the part of the US Issuing Bank or the US Lenders,
the US Issuing Bank hereby grants to each US Lender, and each US Lender hereby
acquires from the US Issuing Bank, a participation in such US Letter of Credit
equal to such US Lender's Applicable Percentage of the aggregate amount
available to be drawn under such US Letter of Credit. In consideration and in
furtherance of the foregoing, each US Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the US Issuing Bank, such US Lender's Applicable Percentage of each LC
Disbursement made by the US Issuing Bank and not reimbursed by the applicable US
Borrower on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the applicable US Borrower for
any reason. Each US Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of US Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any US
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the US Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the US Issuing Bank shall make any LC
Disbursement in respect of a US Letter of Credit, the applicable US Borrower
shall reimburse such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement not later than 12:00 noon, New York City
time, on the date that such LC Disbursement is made, if such US Borrower shall
have received notice of such LC Disbursement prior to 10:00 a.m., New York City
time, on such date, or, if such notice has not been received by such US Borrower
prior to such time on such date, then not later than 12:00 noon, New York City
time, on (i) the Business Day that such US Borrower receives such notice, if
such notice is received prior to
34
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that such US Borrower receives such notice, if
such notice is not received prior to such time on the day of receipt; provided
that, if such LC Disbursement is not less than $1,000,000, such US Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.03 that such payment be financed with a Borrowing of ABR Loans or
a Swingline Loan in an equivalent amount and, to the extent so financed, such US
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting Borrowing of ABR Loans or a Swingline Loan. If the applicable US
Borrower fails to make such payment when due, the Administrative Agent shall
notify each US Lender of the applicable LC Disbursement, the payment then due
from the applicable US Borrower in respect thereof and such US Lender's
Applicable Percentage thereof. Promptly following receipt of such notice, each
US Lender shall pay to the Administrative Agent its Applicable Percentage of the
payment then due from the applicable US Borrower, in the same manner as provided
in Section 2.07 with respect to Loans made by such US Lender (and Section 2.07
shall apply, mutatis mutandis, to the payment obligations of the US Lenders),
and the Administrative Agent shall promptly pay to the US Issuing Bank the
amounts so received by it from the US Lenders. Promptly following receipt by the
Administrative Agent of any payment from a US Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the US
Issuing Bank or, to the extent that US Lenders have made payments pursuant to
this paragraph to reimburse the US Issuing Bank, then to such US Lenders and the
US Issuing Bank as their interests may appear. Any payment made by a US Lender
pursuant to this paragraph to reimburse the US Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
applicable US Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. A US Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
US Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a US Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the US Issuing Bank under
a US Letter of Credit against presentation of a draft or other document that
does not comply with the terms of such US Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against, such US
Borrower's obligations hereunder. Neither the Administrative Agent, the US
Lenders nor the US Issuing Bank, nor any of their Related Parties, shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any US Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any US Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the US Issuing Bank;
provided that the foregoing shall not be construed to excuse the US Issuing
35
Bank from liability to a US Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by each US Borrower to the extent permitted by applicable law) suffered by such
US Borrower that are caused by the US Issuing Bank's failure to exercise care
when determining whether drafts and other documents presented under a US Letter
of Credit comply with the terms thereof. The parties hereto expressly agree
that, in the absence of gross negligence or willful misconduct on the part of
the US Issuing Bank (as finally determined by a court of competent
jurisdiction), the US Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the
terms of a US Letter of Credit, the US Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such US Letter of Credit.
(g) Disbursement Procedures. The US Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a US Letter of Credit. The US Issuing Bank
shall promptly notify the Administrative Agent and the applicable US Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the US
Issuing Bank has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve a US
Borrower of its obligation to reimburse the US Issuing Bank and the US Lenders
with respect to any such LC Disbursement.
(h) Interim Interest. If the US Issuing Bank shall make any LC
Disbursement, then, unless the applicable US Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the applicable US Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to ABR
Revolving Loans; provided that, if the applicable US Borrower fails to reimburse
such LC Disbursement when due pursuant to paragraph (e) of this Section, then
Section 2.15(e) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the US Issuing Bank, except that interest accrued on and
after the date of payment by any US Lender pursuant to paragraph (e) of this
Section to reimburse the US Issuing Bank shall be for the account of such US
Lender to the extent of such payment.
(i) Replacement of the US Issuing Bank. The US Issuing Bank
may be replaced at any time by written agreement among the US Borrowers, the
Administrative Agent, the replaced US Issuing Bank and the successor US Issuing
Bank. The Administrative Agent shall notify the US Lenders of any such
replacement of the US Issuing Bank. At the time any such replacement shall
become effective, the US Borrowers shall pay all unpaid fees accrued for the
account of the replaced US Issuing Bank pursuant to Section 2.14(b). From and
after the effective date of any such replacement, (i) the successor US Issuing
Bank shall have all the rights and obligations of the US Issuing Bank under this
Agreement with respect to US Letters of Credit to be issued thereafter and (ii)
references herein to the term "US Issuing Bank" shall be
36
deemed to refer to such successor or to any previous US Issuing Bank, or to such
successor and all previous US Issuing Banks, as the context shall require. After
the replacement of a US Issuing Bank hereunder, the replaced US Issuing Bank
shall remain a party hereto and shall continue to have all the rights and
obligations of a US Issuing Bank under this Agreement with respect to US Letters
of Credit issued by it prior to such replacement, but shall not be required to
issue additional US Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the US Borrowers receive
notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, US Lenders with US LC Exposure
representing a majority of the total US LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the US Borrowers shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the US Lenders, an amount in cash equal to the US LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to a Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the US Borrowers under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the US Borrowers'
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the US Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the US Borrowers for the US LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of US
Lenders with US LC Exposure representing a majority of the total US LC
Exposure), be applied to satisfy other obligations of the US Borrowers under
this Agreement. If a US Borrower is required to provide an amount of cash
collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to such US
Borrower within three Business Days after all Events of Default have been cured
or waived.
SECTION 2.06. Canadian Letters of Credit. (a) General. Subject
to the terms and conditions set forth herein, the Canadian Borrower may request
the issuance of Canadian Letters of Credit for its own account, in the Canadian
Issuing Bank's then-current form, at any time and from time to time during the
Availability Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application submitted by the Canadian Borrower to, or entered into by
the Canadian Borrower with, the Canadian Issuing Bank relating to any Canadian
Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Canadian Letter of Credit (or the
amendment or extension of an
37
outstanding Canadian Letter of Credit), the Canadian Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Canadian Issuing Bank) to the Canadian Issuing Bank
and the Canadian Administrative Agent (three days in advance of the requested
date of issuance, amendment or extension) a notice requesting the issuance of a
Canadian Letter of Credit, or identifying the Canadian Letter of Credit to be
amended or extended, and specifying the date of issuance, amendment or extension
(which shall be a Business Day), the date on which such Canadian Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Canadian Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend or extend such Canadian Letter of Credit. If requested by the Canadian
Issuing Bank, the Canadian Borrower also shall submit a letter of credit
application on the Canadian Issuing Bank's standard form in connection with any
request for a Canadian Letter of Credit. A Canadian Letter of Credit shall be
issued, amended or extended only if (and upon issuance, amendment or extension
of each Canadian Letter of Credit the Canadian Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment or
extension (i) the Dollar Equivalent Amount of the Canadian LC Exposure shall not
exceed $10,000,000 and (ii) the total Canadian Revolving Credit Exposures shall
not exceed the total Canadian Commitments.
(c) Expiration Date. Each Canadian Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the date one
year after the date of the issuance of such Canadian Letter of Credit (or, in
the case of any extension thereof, one year after such extension) and (ii) the
date that is five Business Days prior to the Maturity Date; provided that a
Canadian Letter of Credit may provide for automatic renewals for additional
periods of up to one year, subject to a right on the part of the Canadian
Issuing Bank to prevent any such renewal from occurring by giving notice to the
beneficiary during a period satisfactory to the Canadian Administrative Agent.
(d) Participations. By the issuance of a Canadian Letter of
Credit (or an amendment to a Canadian Letter of Credit increasing the amount
thereof) and without any further action on the part of the Canadian Issuing Bank
or the Canadian Lenders, the Canadian Issuing Bank hereby grants to each
Canadian Lender, and each Canadian Lender hereby acquires from the Canadian
Issuing Bank, a participation in such Canadian Letter of Credit equal to such
Canadian Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Canadian Letter of Credit. In consideration and in furtherance
of the foregoing, each Canadian Lender hereby absolutely and unconditionally
agrees to pay to the Canadian Administrative Agent, for the account of the
Canadian Issuing Bank, such Canadian Lender's Applicable Percentage of each LC
Disbursement made by the Canadian Issuing Bank and not reimbursed by the
Canadian Borrower on the date due as provided in paragraph (e) of this Section,
or of any reimbursement payment required to be refunded to the Canadian Borrower
for any reason. Each Canadian Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Canadian
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Canadian Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Canadian Commitments, and that
38
each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
(e) Reimbursement. If the Canadian Issuing Bank shall make any
LC Disbursement in respect of a Canadian Letter of Credit, the Canadian Borrower
shall reimburse such LC Disbursement by paying to the Canadian Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, Toronto
time, on the date that such LC Disbursement is made, if the Canadian Borrower
shall have received notice of such LC Disbursement prior to 10:00 a.m., Toronto
time, on such date, or, if such notice has not been received by the Canadian
Borrower prior to such time on such date, then not later than 12:00 noon,
Toronto time, on (i) the Business Day that the Canadian Borrower receives such
notice, if such notice is received prior to 10:00 a.m., Toronto time, on the day
of receipt, or (ii) the Business Day immediately following the day that such
Canadian Borrower receives such notice, if such notice is not received prior to
such time on the day of receipt; provided that, if such LC Disbursement is not
less than C$1,000,000, the Canadian Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.03 that such
payment be financed with a Borrowing of C$ Prime Rate Loans in an equivalent
amount and, to the extent so financed, the Canadian Borrower's obligation to
make such payment shall be discharged and replaced by the resulting C$ Prime
Rate Loans. If the Canadian Borrower fails to make such payment when due, the
Canadian Administrative Agent shall notify each Canadian Lender of the
applicable LC Disbursement, the payment then due from the Canadian Borrower in
respect thereof and such Canadian Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Canadian Lender shall pay to the
Canadian Administrative Agent its Applicable Percentage of the payment then due
from the Canadian Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Canadian Lender (and Section 2.07 shall apply,
mutatis mutandis, to the payment obligations of the Canadian Lenders), and the
Canadian Administrative Agent shall promptly pay to the Canadian Issuing Bank
the amounts so received by it from the Canadian Lenders. Promptly following
receipt by the Canadian Administrative Agent of any payment from the Canadian
Borrower pursuant to this paragraph, the Canadian Administrative Agent shall
distribute such payment to the Canadian Issuing Bank or, to the extent that
Canadian Lenders have made payments pursuant to this paragraph to reimburse the
Canadian Issuing Bank, then to such Canadian Lenders and the Canadian Issuing
Bank as their interests may appear. Any payment made by a Canadian Lender
pursuant to this paragraph to reimburse the Canadian Issuing Bank for any LC
Disbursement (other than the funding of C$ Prime Rate Loans as contemplated
above) shall not constitute a Loan and shall not relieve the Canadian Borrower
of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Canadian Borrower's obligation
to reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Canadian Letter of Credit or this Agreement, or any term or provision therein,
(ii) any draft or other document presented under a Canadian Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by the Canadian
Issuing Bank under a Canadian Letter of Credit against
39
presentation of a draft or other document that does not comply with the terms of
such Canadian Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Canadian Borrower's obligations
hereunder. Neither the Canadian Administrative Agent, the Canadian Lenders nor
the Canadian Issuing Bank, nor any of their Related Parties, shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Canadian Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Canadian Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Canadian Issuing
Bank; provided that the foregoing shall not be construed to excuse the Canadian
Issuing Bank from liability to the Canadian Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Canadian Borrower to the extent permitted by applicable
law) suffered by the Canadian Borrower that are caused by the Canadian Issuing
Bank's failure to exercise care when determining whether drafts and other
documents presented under a Canadian Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Canadian Issuing Bank (as
finally determined by a court of competent jurisdiction), the Canadian Issuing
Bank shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Canadian Letter of
Credit, the Canadian Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Canadian Letter of Credit.
(g) Disbursement Procedures. The Canadian Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Canadian Letter of Credit. The Canadian
Issuing Bank shall promptly notify the Canadian Administrative Agent and the
Canadian Borrower by telephone (confirmed by telecopy) of such demand for
payment and whether the Canadian Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve a Canadian Borrower of its obligation to reimburse
the Canadian Issuing Bank and the Canadian Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Canadian Issuing Bank shall make
any LC Disbursement, then, unless the Canadian Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the applicable Canadian
Borrower reimburses such LC Disbursement, at the rate per annum then applicable
to C$ Prime Rate Loans; provided that, if the Canadian Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.15(e) shall apply. Interest accrued pursuant to this
paragraph shall be for the account
40
of the Canadian Issuing Bank, except that interest accrued on and after the date
of payment by any Canadian Lender pursuant to paragraph (e) of this Section to
reimburse the Canadian Issuing Bank shall be for the account of such Canadian
Lender to the extent of such payment.
(i) Replacement of the Canadian Issuing Bank. The Canadian
Issuing Bank may be replaced at any time by written agreement among the Canadian
Borrower, the Canadian Administrative Agent, the replaced Canadian Issuing Bank
and the successor Canadian Issuing Bank. The Canadian Administrative Agent shall
notify the Canadian Lenders of any such replacement of the Canadian Issuing
Bank. At the time any such replacement shall become effective, the Canadian
Borrower shall pay all unpaid fees accrued for the account of the replaced
Canadian Issuing Bank pursuant to Section 2.14(b). From and after the effective
date of any such replacement, (i) the successor Canadian Issuing Bank shall have
all the rights and obligations of the Canadian Issuing Bank under this Agreement
with respect to Canadian Letters of Credit to be issued thereafter and (ii)
references herein to the term "Canadian Issuing Bank" shall be deemed to refer
to such successor or to any previous Canadian Issuing Bank, or to such successor
and all previous Canadian Issuing Banks, as the context shall require. After the
replacement of a Canadian Issuing Bank hereunder, the replaced Canadian Issuing
Bank shall remain a party hereto and shall continue to have all the rights and
obligations of a Canadian Issuing Bank under this Agreement with respect to
Canadian Letters of Credit issued by it prior to such replacement, but shall not
be required to issue additional Canadian Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Canadian Borrower receives
notice from the Canadian Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Canadian Lenders with Canadian
LC Exposure representing a majority of the total Canadian LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph, the Canadian
Borrowers shall deposit in an account with the Canadian Administrative Agent, in
the name of the Canadian Administrative Agent and for the benefit of the
Canadian Lenders, an amount in Canadian Dollars equal to the Canadian LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to a Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Canadian Administrative Agent as collateral for the
payment and performance of the obligations of the Canadian Borrower under this
Agreement. The Canadian Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Canadian Administrative
Agent and at the Canadian Borrower's risk and expense, such deposits shall not
bear interest. Interest or profits, if any, on such investments shall accumulate
in such account. Moneys in such account shall be applied by the Canadian
Administrative Agent to reimburse the Canadian Issuing Bank for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Canadian
Borrower for the Canadian LC Exposure at such time or, if the maturity of the
Loans has been accelerated (but subject to the consent of Canadian Lenders with
Canadian LC Exposure representing a majority of the total Canadian LC Exposure),
be applied to satisfy other
41
obligations of the Canadian Borrower under this Agreement. If the Canadian
Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Canadian Borrower within three
Business Days after all Events of Default have been cured or waived.
SECTION 2.07. Funding of Borrowings. (a) Each US$ Lender shall
make each US$ Loan to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds by 12:00 noon, New York City time,
to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the applicable Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent will make
such US$ Loans available to the applicable US Borrower by promptly wiring the
amounts so received, in like funds, to an account designated by such US Borrower
in the applicable Borrowing Request; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)
shall be remitted by the Administrative Agent to the US Issuing Bank. Unless the
Administrative Agent shall have received notice from a US$ Lender prior to the
proposed date of any US$ Revolving Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such US$ Revolving
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the applicable US
Borrower a corresponding amount. In such event, if a US$ Lender has not in fact
made its share of the applicable US$ Revolving Borrowing available to the
Administrative Agent, then the applicable Lender and the applicable US Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the
date such amount is made available to such US Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such US$ Lender,
the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the applicable US Borrower, the interest
rate applicable to ABR Loans. If such US$ Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such US$ Revolving Borrowing.
(b) Each UK Lender shall make each Pounds Sterling UK
Revolving Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, London time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the UK Lenders. The Administrative Agent will make such UK
Loans available to the UK Borrower by promptly wiring the amounts so received,
in like funds, to an account designated by the UK Borrower in the applicable
Borrowing Request. Unless the Administrative Agent shall have received notice
from a UK Lender prior to the proposed date of any UK Revolving Borrowing
denominated in Pounds Sterling that such Lender will not make available to the
Administrative Agent such Lender's share of such UK Revolving Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the UK Borrower a corresponding
amount. In such event, if a UK Lender has not in fact made its share of the
applicable UK Revolving Borrowing
42
denominated in Pounds Sterling available to the Administrative Agent, then the
applicable Lender and the UK Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon, for each day from and including the date such amount is made available
to the UK Borrower to but excluding the date of payment to the Administrative
Agent, at a rate determined by the Administrative Agent to be the cost to it of
funding such amount. If such UK Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such UK
Revolving Borrowing.
(c) Each Canadian Lender shall make each Canadian Revolving
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Toronto time, to the account of the
Canadian Administrative Agent most recently designated by it for such purpose by
notice to the Canadian Lenders. The Canadian Administrative Agent will make such
Canadian Revolving Loans available to the Canadian Borrower by promptly wiring
the amounts so received, in like funds, to an account designated by the Canadian
Borrower in the applicable Borrowing Request; provided that C$ Prime Rate Loans
made to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Canadian Administrative Agent to the Canadian
Issuing Bank. Unless the Canadian Administrative Agent shall have received
notice from a Canadian Lender prior to the proposed date of any Canadian
Revolving Borrowing that such Lender will not make available to the Canadian
Administrative Agent such Lender's share of such Canadian Revolving Borrowing,
the Canadian Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Canadian
Borrower a corresponding amount. In such event, if a Canadian Lender has not in
fact made its share of the applicable Canadian Revolving Borrowing available to
the Canadian Administrative Agent, then the applicable Lender and the Canadian
Borrower severally agree to pay to the Canadian Administrative Agent forthwith
on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Canadian Borrower to but
excluding the date of payment to the Canadian Administrative Agent, at a rate
determined by the Canadian Administrative Agent as the cost to it of funding
such amount. If such Canadian Lender pays such amount to the Canadian
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Canadian Revolving Borrowing. Notwithstanding the foregoing,
Canadian Revolving Borrowings by way of Bankers' Acceptances shall be made in
accordance with the provisions of Section 2.22.
SECTION 2.08. US$ Revolving Loan Interest Elections. (a) Each
US$ Revolving Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a US$ Revolving Borrowing of
Eurocurrency Loans, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the applicable US Borrower may elect to convert
such US$ Revolving Borrowing to a different Type or to continue such Borrowing
and, in the case of a US$ Revolving Borrowing of Eurocurrency Loans, may elect
Interest Periods therefor, all as provided in this Section. The applicable US
Borrower may elect different options with respect to different portions of the
affected US$ Revolving Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such US$
Revolving Borrowing, and the Loans comprising each such portion shall
43
be considered a separate US$ Revolving Borrowing. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the
applicable US Borrower shall notify the New York office of the Administrative
Agent of such election by telephone by the time that a Borrowing Request would
be required under Section 2.03 if such US Borrower were requesting a US$
Revolving Borrowing of the Type resulting from such election to be made on the
effective date of such election. Each such telephonic Interest Election Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the applicable US
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the US$ Revolving Borrowing to which such Interest
Election Request applies and, if different options are being
elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting US$
Revolving Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting US$ Revolving Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting US$ Revolving Borrowing is to
be a Borrowing of ABR Loans or a Borrowing of Eurocurrency
Loans; and
(iv) if the resulting US$ Revolving Borrowing is a
Borrowing of Eurocurrency Loans, the Interest Period to be
applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term
"Interest Period".
If any such Interest Election Request requests a Borrowing of Eurocurrency Loans
but does not specify an Interest Period, then the applicable US Borrower shall
be deemed to have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each applicable US$ Lender of the
details thereof and of such Lender's portion of each resulting US$ Revolving
Borrowing.
(e) If a US Borrower fails to deliver a timely Interest
Election Request with respect to a US$ Revolving Borrowing of Eurocurrency Loans
prior to the end of the Interest Period applicable thereto, then, unless such
US$ Revolving Borrowing is repaid as provided herein, at the end of such
Interest Period such Borrowing shall be converted to a Borrowing of ABR Loans.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the Administrative Agent, at the request of the
Required Lenders, so notifies the Borrowers, then, so long as an Event of
Default is continuing (i) no outstanding US$ Revolving Borrowing may be
converted to or continued as a Borrowing of Eurocurrency Loans
44
and (ii) unless repaid, each US$ Revolving Borrowing of Eurocurrency Loans shall
be converted to a Borrowing of ABR Loans at the end of the Interest Period
applicable thereto.
SECTION 2.09. Pounds Sterling UK Revolving Loan Interest
Elections. (a) Each UK Revolving Borrowing denominated in Pounds Sterling shall
have an initial Interest Period as specified in the Borrowing Request.
Thereafter, the UK Borrower may elect Interest Periods therefor as provided in
this Section. The UK Borrower may elect different options with respect to
different portions of the affected UK Revolving Borrowing denominated in Pounds
Sterling, in which case each such portion shall be allocated ratably among the
UK Lenders holding the Loans comprising such UK Revolving Borrowing, and the
Loans comprising each such portion shall be considered a separate UK Revolving
Borrowing.
(b) To make an election pursuant to this Section, the UK
Borrower shall notify the London office of the Administrative Agent of such
election by telephone by the time that a Borrowing Request would be required
under Section 2.03 if the UK Borrower were requesting a UK Revolving Borrowing
to be made in Pounds Sterling on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Interest Election Request in a form approved by the Administrative Agent and
signed by the UK Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the UK Revolving Borrowing to which such Interest
Election Request applies and, if different Interest Periods
are being elected with respect to different portions thereof,
the portions thereof to be allocated to each resulting UK
Revolving Borrowing (in which case the information to be
specified pursuant to clause (iii) below shall be specified
for each resulting UK Revolving Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) the Interest Period to be applicable to such UK
Revolving Borrowing after giving effect to such election,
which shall be a period contemplated by the definition of the
term "Interest Period".
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each UK Lender of the details
thereof and of such Lender's portion of each resulting UK Revolving Borrowing.
(e) If the UK Borrower fails to deliver a timely Interest
Election Request with respect to a UK Revolving Borrowing denominated in Pounds
Sterling prior to the end of the Interest Period applicable thereto, then,
unless such UK Revolving Borrowing is repaid as provided herein, the UK Borrower
shall be deemed to have selected an Interest Period of one month's duration.
45
SECTION 2.10. Elections with Respect to Canadian Revolving
Loans. Each Canadian Revolving Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Canadian
Revolving Borrowing by way of Bankers' Acceptances, shall have Contract Period
as specified in such Borrowing Request. Thereafter, the Canadian Borrower may
elect to convert any such Borrowing of C$ Prime Rate Loans to a Borrowing by way
of Bankers' Acceptances or to rollover any Borrowing by way of Bankers'
Acceptances, all as provided in Section 2.22.
SECTION 2.11. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Company may at any time terminate, or from time to
time reduce, the Commitments under any Facility; provided that (i) each
reduction of Commitments under a Facility shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the
Borrowers shall not terminate or reduce the Commitments under any Facility if,
after giving effect to any concurrent prepayment of the Loans under such
Facility in accordance with Section 2.12, the Revolving Credit Exposures under
such Facility would exceed the total Commitments under such Facility.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under a Facility under paragraph
(b) of this Section at least three Business Days prior to the effective date of
such termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent or
the Canadian Administrative Agent, as applicable, shall advise the Lenders under
the applicable Facility of the contents thereof. Each notice delivered by a
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments under a Facility delivered by the Company may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
under a Facility shall be permanent. Each reduction of the Commitments under a
Facility shall be made ratably among the applicable Lenders in accordance with
their respective Commitments under such Facility.
SECTION 2.12. Repayment of Loans; Evidence of Debt. (a) (i)
Each US Borrower unconditionally promises to pay on the Maturity Date to the
Administrative Agent for the account of each applicable Lender the then unpaid
principal amount of each US$ Revolving Loan made to such US Borrower; (ii) the
UK Borrower unconditionally promises to pay to the Administrative Agent for the
account of each UK Lender the then unpaid principal amount of each Pounds
Sterling UK Revolving Loan on the Maturity Date; (iii) the Canadian Borrower
unconditionally promises to pay to the Canadian Administrative Agent for the
account of each Canadian Lender (x) the full face amount of each Canadian
Revolving Borrowing by way of Bankers' Acceptances at the expiration of each
Contract Period, if such Canadian Revolving Borrowing is not rolled over or
converted pursuant to Section 2.22 and (y) the then unpaid principal amount of
each Canadian Revolving Loan on the Maturity Date; and (iv) each US Borrower
unconditionally promises to pay to the Swingline Lender the then unpaid
principal
46
amount of each Swingline Loan made to such US Borrower on the earlier of the
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least five Business Days after
such Swingline Loan is made; provided that on each date that a Borrowing of US
Revolving Loans is made, the applicable US Borrower shall repay all Swingline
Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each US Revolving Loan, UK Revolving Loan,
Additional US Revolving Loan and Swingline Loan made hereunder, the Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder with respect to any such Loan and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the applicable
Lenders and each Lender's share thereof.
(d) The Canadian Administrative Agent shall maintain accounts
in which it shall record (i) the amount of each Canadian Revolving Loan made
hereunder, the Type thereof and each Contract Period applicable thereto, (ii)
the amount of any principal or interest due and payable or to become due and
payable from the Canadian Borrower to each Canadian Lender hereunder and (iii)
the amount of any sum received by the Canadian Administrative Agent hereunder
for the account of the Canadian Lenders and each Canadian Lender's share
thereof.
(e) The entries made in the accounts maintained pursuant to
paragraph (b), (c) or (d) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender, the Administrative Agent or the Canadian Administrative
Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrowers to repay the Loans in accordance with the
terms of this Agreement.
(f) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the applicable Borrower(s) shall prepare,
execute and deliver to such Lender a promissory note or notes for such Lender's
Loans (other than any Canadian Revolving Loans comprised of Bankers'
Acceptances) under each applicable Facility, as requested, payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent and/or
the Canadian Administrative Agent, as applicable. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.13. Prepayment of Loans. (a) The Borrowers shall
have the right at any time and from time to time to prepay any Borrowing (other
than a Borrowing by way of
47
Bankers' Acceptances) in whole or in part, subject to prior notice in accordance
with paragraph (b) of this Section.
(b) With respect to prepayments of US Revolving Loans and
Additional US Revolving Loans, the applicable US Borrower shall notify the
Administrative Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy) of such prepayment (i) in
the case of prepayment of Eurocurrency Loans, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of ABR Loans, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment or (iii) in the case of
prepayment of a Swingline Loan, not later than 12:00 noon, New York City time,
on the date of prepayment. With respect to prepayments of UK Revolving Loans,
the UK Borrower shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such prepayment not later than 11:00 a.m., London time, three
Business Days before the date of prepayment. With respect to prepayments of C$
Prime Rate Loans, the Canadian Borrower shall notify the Canadian Administrative
Agent by telephone (confirmed by telecopy) of such prepayment not later than
11:00 a.m., Toronto time, one Business Day before the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date and the
principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice
of termination of Commitments under a Facility as contemplated by Section 2.11,
then such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.11. Promptly following receipt of any such
notice relating to a Revolving Borrowing, the Administrative Agent or the
Canadian Administrative Agent, as applicable, shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be in
an amount that would be permitted in the case of an advance of a Revolving
Borrowing under the same Facility of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.15.
SECTION 2.14. Fees. (a) The Borrowers agree to pay to the
Administrative Agent, or, in the case of the Canadian Revolving Loan, the
Canadian Administrative Agent, for the account of each Lender under each
Facility a commitment fee, which shall accrue at the Applicable Rate on the
average daily unused amount of the Commitment of such Lender under such Facility
during the period from and including the Effective Date to but excluding the
date on which such Commitment terminates. Accrued commitment fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; provided that any commitment
fees accruing after the date on which the Commitments terminate shall be payable
on demand. All commitment fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrowers agree to pay (i) to the Administrative Agent
or the Canadian Administrative Agent, as applicable, for the account of each US
Lender or Canadian Lender, as the case may be, a participation fee with respect
to such Lender's participations in US Letters of Credit or Canadian Letters of
Credit, as the case may be, which shall accrue at the same
48
Applicable Rate used to determine the interest rate applicable to Eurocurrency
Loans on the average daily amount of such Lender's US LC Exposure or Canadian LC
Exposure, as the case may be (excluding any portion thereof attributable to
unreimbursed LC Disbursements), during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Commitment under the applicable Facility terminates and the date on which such
Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a fronting
fee, which shall accrue (x) in the case of the fronting fee for the US Issuing
Bank, at the rate of 0.125% per annum, and (y) in the case of the fronting fee
for the Canadian Issuing Bank, at the rate or rates per annum separately agreed
upon between the Borrower and the Canadian Issuing Bank, on the average daily
amount of the US LC Exposure or Canadian LC Exposure, as the case may be
(excluding any portion thereof attributable to unreimbursed LC Disbursements),
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any US LC Exposure or Canadian LC Exposure, as the case may be, as
well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to an Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrowers agree to pay to each of the Administrative
Agent and, in the case of the Canadian Borrower, the Canadian Administrative
Agent, for its own account, fees payable in the amounts and at the times
separately agreed upon between the Borrowers and the Administrative Agent or the
Canadian Administrative Agent, as the case may be.
(d) Upon acceptance of a Bankers' Acceptance by a Canadian
Lender, the Borrower shall pay to the Canadian Administrative Agent on behalf of
the Lender the Acceptance Fee calculated on the face amount of the Bankers'
Acceptance at a rate per annum equal to the Applicable Rate on the basis of the
number of days in the Contract Period for the Bankers' Acceptance and a year of
365 days.
(e) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent, the Canadian
Administrative Agent or the applicable Issuing Bank, as applicable, for
distribution, in the case of commitment fees and participation fees, to the
applicable Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.15. Interest. (a) Each ABR Loan and each Swingline
Loan shall bear interest at the Alternate Base Rate plus the Applicable Rate.
49
(b) The Loans comprising each Borrowing of Eurocurrency Loans
shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.
(c) Each C$ Prime Rate Loan shall bear interest at the C$
Prime Rate plus the Applicable Rate.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by a Borrower hereunder
is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section or (ii) in the case of any other amount, 2%
plus the rate applicable to ABR Loans (or, in the case of Canadian Dollar
payments, 2% plus the rate applicable to C$ Prime Rate Loans) as provided in
paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(f) All interest and fees hereunder shall be computed on the
basis of a year of 360 days, except that (i) (A) interest computed by reference
to the Alternate Base Rate at times when the Alternate Base Rate is based on the
US$ Prime Rate, (B) interest computed by reference to the C$ Prime Rate and (C)
interest on UK Revolving Borrowings denominated in Pounds Sterling shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day) and (ii) Acceptance Fees shall be computed
on the basis of a year of 365 days. The applicable Alternate Base Rate, C$ Prime
Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent or the Canadian Administrative Agent, as the case may be, and such
determination shall be conclusive absent manifest error. For purposes of the
Interest Act (Canada) (i) whenever any interest or fee under this Agreement with
respect to credit extended thereunder, is calculated using a rate based on a
year of 360 days or 365 days, such rate determined pursuant to such calculation,
when expressed as an annual rate, is equivalent to (x) the applicable rate based
on a year of 360 days or 365 days, as applicable, multiplied by (y) the actual
number of days in the calendar year in which the period for which such interest
or fee is payable (or compounded) ends, and (z) divided by 360 or 365, as
applicable and (ii) the principle of deemed reinvestment of interest does not
apply to any such interest calculation under this Agreement, and (iii) the rates
of interest stipulated in this Agreement are intended to be nominal rates and
not effective rates or yields.
50
SECTION 2.16. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their affected Loans (or its Loan) included in
such Borrowing for such Interest Period;
then the Administrative Agent shall promptly notify the relevant Borrower and
each relevant Lender thereof, and so long as such condition remains in effect,
the Lenders shall be under no obligation to make Eurocurrency Loans or to
convert ABR Loans into Eurocurrency Loans and the relevant Borrower shall, on
the last day(s) of the then current Interest Period(s) for the outstanding
Eurocurrency Loans, either prepay such Loans or, in the case of US$ Revolving
Loans, convert such Loans into ABR Loans in accordance with Section 2.08 hereof.
SECTION 2.17. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate) or Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the
London interbank market or the Toronto interbank market (with
respect to Canadian Revolving Loans) any other condition
affecting this Agreement or Eurocurrency Loans or Canadian
Revolving Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Canadian Revolving Loan
(or of maintaining its obligation to make any such Loan) or to increase the cost
to such Lender or such Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable
by such Lender or such Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrowers will pay to such Lender or such Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or such Issuing Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by, or
51
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such Issuing Bank, to a level below that which such Lender or
such Issuing Bank or such Lender's or such Issuing Bank's holding company could
have achieved but for such Change in Law (taking into consideration such
Lender's or such Issuing Bank's policies and the policies of such Lender's or
such Issuing Bank's holding company with respect to capital adequacy), then from
time to time the Borrowers will pay to such Lender or such Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or
such Issuing Bank or such Lender's or such Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or such Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a) or (b)
of this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Borrowers shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or such Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 90 days prior to the date that such Lender or such
Issuing Bank, as the case may be, notifies the Company of the Change in Law
giving rise to such increased costs or reductions and of such Lender's or such
Issuing Bank's intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.18. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan or Bankers' Acceptance other
than on the last day of an Interest Period or Contract Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Eurocurrency Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Eurocurrency
Loan or Bankers' Acceptance on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.13(b) and is revoked in accordance therewith), or (d) the assignment of any
Eurocurrency Loan or Bankers' Acceptance other than on the last day of the
Interest Period or Contract Period applicable thereto as a result of a request
by the Company pursuant to Section 2.21, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
52
such period, for deposits in the applicable currency of a comparable amount and
period from other banks in the eurocurrency market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Borrowers shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.19. Taxes. (a) Any and all payments by or on account
of any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if a
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Canadian
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Borrower shall make such deductions and (iii) such Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Administrative Agent,
the Canadian Administrative Agent, each Lender and each Issuing Bank, within 10
days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of
any obligation of a Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Company by a Lender or an Issuing Bank, or by the Administrative Agent or
the Canadian Administrative Agent on its own behalf or on behalf of a Lender or
the Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by a Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the applicable
Borrower (with a copy to the Administrative Agent or the Canadian Administrative
Agent, as the case may be), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably
53
requested by such Borrower as will permit such payments to be made without
withholding or at a reduced rate.
(f) If the Administrative Agent, the Canadian Administrative
Agent or a Lender determines, in its sole discretion, that it has received a
refund of or credit for any Taxes or Other Taxes as to which it has been
indemnified by a Borrower or with respect to which a Borrower has paid
additional amounts pursuant to this Section 2.19, it shall pay over such refund
or an amount equal to, or the Dollar Equivalent Amount of, if applicable, the
Taxes that it determines would have been payable by it but were not payable as a
result of such credit to the applicable Borrower (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.19 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Administrative Agent, the
Canadian Administrative Agent or such Lender and without interest (other than
any interest paid by the relevant Governmental Authority with respect to such
refund or credit, which shall be paid to the Borrower); provided, that such
Borrower, upon the request of the Administrative Agent or such Lender, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, the Canadian Administrative Agent or such Lender in the
event the Administrative Agent, the Canadian Administrative Agent or such Lender
is required to repay such refund to such Governmental Authority. This Section
shall not be construed to require the Administrative Agent, the Canadian
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to any
Borrower or any other Person.
SECTION 2.20. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder in respect of US$ Loans and US Letters of Credit (whether of
principal, interest, fees or reimbursement of LC Disbursements, or of amounts
payable under Section 2.17, 2.18 or 2.19, or otherwise) prior to 2:00 p.m., New
York City time, on the date when due, in immediately available funds in Dollars,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made
directly to the US Issuing Bank or Swingline Lender as expressly provided herein
and except that payments pursuant to Sections 2.17, 2.18, 2.19 and 9.03 shall be
made directly to the Persons entitled thereto.
(b) The UK Borrower shall make each payment required to be
made by it hereunder in respect of Pounds Sterling UK Revolving Loans (whether
of principal, interest or fees, or of amounts payable under Section 2.17, 2.18
or 2.19, or otherwise) prior to 2:00 p.m., London time, on the date when due, in
immediately available funds in Pounds Sterling, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, except that payments pursuant to Sections 2.17,
2.18, 2.19 and 9.03 shall be made directly to the Persons entitled thereto.
54
(c) The Canadian Borrower shall make each payment required to
be made by it hereunder in respect of Canadian Revolving Loans and Canadian
Letters of Credit (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.17, 2.18 or 2.19, or
otherwise) prior to 2:00 p.m., Toronto time, on the date when due, in
immediately available funds in Canadian Dollars, without set-off or
counterclaim. Any amounts received after such time on any date may, in the
discretion of the Canadian Administrative Agent, be deemed to have been received
on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Canadian Administrative Agent at
its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, except payments to be made directly to the
Canadian Issuing Bank as expressly provided herein and except that payments
pursuant to Sections 2.17, 2.18, 2.19 and 9.03 shall be made directly to the
Persons entitled thereto.
(d) Each of the Administrative Agent and the Canadian
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension.
(e) If at any time insufficient funds are received by and
available to the Administrative Agent or the Canadian Administrative Agent, as
applicable, to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder in respect of any Facility,
such funds shall be applied (i) first, towards payment of interest and fees then
due hereunder in respect of such Facility, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal and unreimbursed LC
Disbursements then due hereunder in respect of such Facility, ratably among the
parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties. If at any time
insufficient funds are received by and available to the Administrative Agent in
Dollars to pay fully all amounts of principal, unreimbursed LC Disbursements,
interests and fees then due hereunder in respect of each of the US Loans and the
Additional US Revolving Loans, available funds shall be allocated among such
Facilities pro rata based on the amounts due under each such Facility at such
time, and then applied by the Administrative Agent in accordance with the first
sentence of this paragraph.
(f) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
55
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(g) Unless the Administrative Agent or the Canadian
Administrative Agent, as applicable, shall have received notice from the
applicable Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the applicable Lenders or Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
or the Canadian Administrative Agent, as applicable, may assume that the
applicable Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the applicable Lenders
or Issuing Bank, as the case may be, the amount due. In such event, if the
applicable Borrower has not in fact made such payment, then each of the
applicable Lenders or Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent or the Canadian Administrative Agent, as
applicable, forthwith on demand the amount so distributed to such Lender or
Issuing Bank with interest thereon, for each day from and including the date
such amount is distributed to it to but excluding the date of payment to the
Administrative Agent or the Canadian Administrative Agent, as applicable, (i) in
the case of Dollar amounts, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, (ii) in the case of amounts in Pounds
Sterling, at a rate determined by the Administrative Agent to be the cost to it
of funding such amount, and (iii) in the case of amounts in Canadian Dollars, at
a rate determined by the Canadian Administrative Agent to be the cost to it of
funding such amount.
(h) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(d) or (e), 2.06(d) or (e), 2.07 or
2.18(d), then the Administrative Agent or Canadian Administrative Agent, as
applicable, may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Administrative Agent or
Canadian Administrative Agent, as applicable, for the account of such Lender to
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.21. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.17, or if a Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.19, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
56
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.17 or 2.19, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.17, or
if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.19,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Administrative Agent (and, in the case of a Canadian Lender, the Canadian
Administrative Agent), require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrowers
shall have received the prior written consent of the Administrative Agent (and,
in the case of a Canadian Lender, the Canadian Administrative Agent), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrowers (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.17 or payments required to be made pursuant to Section 2.19, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrowers to require such assignment and delegation cease to apply.
SECTION 2.22. Bankers' Acceptances. (a) Subject to the terms
and conditions of this Agreement, the Canadian Borrower may request a Canadian
Revolving Borrowing by acceptance and purchase of B/As by the Canadian Lenders,
in accordance with a request for Canadian Revolving Borrowings under Section
2.03(c).
(b) No Contract Period with respect to a B/A shall extend
beyond the Maturity Date.
(c) To facilitate availment of the Canadian Revolving
Borrowings by way of B/As, the Canadian Borrower hereby appoints each Canadian
Lender as its attorney to sign and endorse on its behalf, in handwriting or by
facsimile or mechanical signature as and when deemed necessary by such Canadian
Lender, blank forms of B/As substantially in the form of Exhibit D. In this
respect, it is each Canadian Lender's responsibility to maintain an adequate
supply of blank forms of B/As for acceptance under this Agreement. The Canadian
Borrower recognizes and agrees that all B/As signed and/or endorsed on its
behalf by a Canadian Lender shall bind the Canadian Borrower as fully and
effectually as if signed in the handwriting of and duly issued by the proper
signing officers of such Canadian Borrower. Each Canadian Lender is
57
hereby authorized to issue such B/As endorsed in blank in such face amounts as
may be determined by such Canadian Lender; provided that the aggregate amount
thereof is equal to the aggregate amount of B/As required to be accepted and
purchased by such Canadian Lender. No Canadian Lender shall be liable for any
damage, loss or other claim arising by reason of any loss or improper use of any
such instrument except the gross negligence or willful misconduct of the
Canadian Lender or its officers, employees, agents or representatives. Each
Canadian Lender shall maintain a record with respect to B/As (i) received by it
from the Canadian Administrative Agent in blank hereunder, (ii) voided by it for
any reason, (iii) accepted and purchased by it hereunder, and (iv) cancelled at
their respective maturities. Each Canadian Lender further agrees to retain such
records in the manner and for the statutory periods provided in the various
provincial or federal statutes and regulations which apply to such Canadian
Lender. Each Canadian Lender agrees to provide such records to the Canadian
Borrower at the Canadian Borrower's expense upon request. On request by or on
behalf of the Canadian Borrower, a Canadian Lender shall cancel all forms of B/A
which have been pre-signed or pre-endorsed on behalf of the Canadian Borrower
and which are held by the said Canadian Lender and are not required to be issued
in accordance with the Canadian Borrower's irrevocable notice.
(d) Drafts of the Canadian Borrower to be accepted as B/As
hereunder shall be signed as set forth in this Section 2.22. Notwithstanding
that any person whose signature appears on any B/A may no longer be an
authorized signatory for any of the Canadian Lenders or the Canadian Borrower at
the date of issuance of a B/A, such signature shall nevertheless be valid and
sufficient for all purposes as if such authority had remained in force at the
time of such issuance and any such B/A so signed shall be binding on the
Canadian Borrower.
(e) Promptly following receipt of a notice of borrowing,
notice of rollover or notice of conversion by way of B/As, in accordance with
Section 2.03(c), Section 2.22(h) or Section 2.22 (k), the Canadian
Administrative Agent shall so advise the Canadian Lenders and shall advise each
Canadian Lender of the aggregate face amount of the B/As to be accepted by it
and the applicable Contract Period (which shall be identical for all Canadian
Lenders). The aggregate face amount of the B/As to be accepted by a Canadian
Lender shall be an integral multiple of C$100,000 and such face amount shall be
in each Canadian Lender's pro rata portion of such Canadian Revolving Borrowing;
provided, that the Canadian Administrative Agent may, in its sole discretion,
increase or reduce any Canadian Lender's portion of such B/A to the nearest
C$100,000.
(f) Upon acceptance of a B/A by a Canadian Lender, such
Canadian Lender shall purchase, or arrange the purchase of, such B/A from the
Canadian Borrower at the Discount Rate for such Canadian Lender applicable to
such B/A accepted by it and provide to the Canadian Administrative Agent the
Discount Proceeds for the account of the Canadian Borrower. The Acceptance Fee
payable by the Canadian Borrower to a Canadian Lender under Section 2.14 in
respect of each B/A accepted by such Canadian Lender shall be set off against
the Discount Proceeds payable by such Canadian Lender under this Section 2.22.
(g) Each Canadian Lender may at any time and from time to time
hold, sell, rediscount or otherwise dispose of any or all B/As accepted and
purchased by it.
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(h) With respect to each Canadian Revolving Borrowing which is
outstanding hereunder by way of B/As, at or before 11:00 a.m., Toronto time,
three Business Days before the maturity date of such B/As, the Canadian Borrower
shall notify the Canadian Administrative Agent at the Canadian Administrative
Agent's address set forth in Section 9.01 by irrevocable telephone notice,
followed by a notice of rollover on the same day, if the Canadian Borrower
intends to issue B/As on such maturity date to provide for the payment of such
maturing B/As. If the Canadian Borrower fails to notify the Canadian
Administrative Agent of its intention to issue B/As on such maturity date, or if
an Event of Default has occurred and is continuing on such maturity date,
subject to Section 2.22(m), the Canadian Borrower shall provide payment to the
Canadian Administrative Agent on behalf of the Canadian Lenders of an amount
equal to the aggregate face amount of such B/As on the maturity date of such
B/As. If the Canadian Borrower fails to make such payment, such maturing B/As
shall be deemed to have been converted on their maturity date into a C$ Prime
Rate Loan in an amount equal to the face amount of such B/As.
(i) The Canadian Borrower waives presentment for payment and
any other defense to payment of any amounts due to a Canadian Lender in respect
of a B/A accepted and purchased by it pursuant to this Agreement which might
exist solely by reason of such B/A being held, at the maturity thereof, by such
Canadian Lender in its own right and the Canadian Borrower agrees not to claim
any days of grace if such Canadian Lender as holder sues the Canadian Borrower
on the B/A for payment of the amount payable by the Canadian Borrower
thereunder. On the specified maturity date of a B/A, or such earlier date as may
be required or permitted pursuant to the provisions of this Agreement, the
Canadian Borrower shall pay the Canadian Lender that has accepted and purchased
such B/A the full face amount of such B/A and after such payment, the Canadian
Borrower shall have no further liability in respect of such B/A and such
Canadian Lender shall be entitled to all benefits of, and be responsible for all
payments due to third parties under, such B/A.
(j) If any Event of Default shall occur and be continuing, the
Canadian Borrower shall, on the Business Day it receives notice from the
Canadian Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Canadian Lenders with Bankers' Acceptances
Exposure representing a majority of the total Bankers' Acceptances Exposure),
deposit in an account with the Canadian Administrative Agent, for the benefit of
the Canadian Lenders, an amount in cash equal to its Bankers' Acceptances
Exposure as of such date. Such deposit shall be held by the Canadian
Administrative Agent as collateral for the payment and performance of the
obligations of the Canadian Borrower under this Agreement. The Canadian
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Canadian Administrative Agent and at the
Canadian Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Canadian Administrative
Agent to reimburse the applicable Canadian Lenders for Bankers' Acceptances
Exposure and, if the maturity of the Loans has been accelerated (but subject to
the consent of Canadian Lenders with Bankers' Acceptance Exposure representing a
majority of the total Bankers' Acceptance Exposure), to satisfy the other
obligations of the Canadian Borrower under this Agreement. All
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remaining amounts on deposit shall be returned to the applicable Canadian
Borrower within three Business Days after all Events of Default have been cured
or waived.
(k) The Canadian Borrower shall have the right at any time
upon irrevocable notice to the Canadian Administrative Agent not later than
12:00 noon, Toronto time, three Business Days prior to conversion to convert a
C$ Prime Rate Loan to a Canadian B/A Borrowing, subject to the following
conditions:
(i) each conversion shall be made pro rata among the
applicable Canadian Lenders in accordance with the respective
principal amounts of the C$ Prime Rate Loans comprising the
converted Borrowing;
(ii) if less than all of the outstanding principal amount
of any Borrowing shall be converted, the aggregate principal
amount of such Borrowing converted shall not be less than
C$1,000,000;
(iii) each conversion shall be effected by each
applicable Canadian Lender by such Canadian Lender's
converting its applicable C$ Prime Rate Loan (or a portion
thereof) into a B/A, and accrued interest on any C$ Prime Rate
Loan (or any portion thereof) being converted shall be paid by
the applicable Canadian Borrower at the time of conversion;
(iv) all Bankers' Acceptances to be issued as a result of
the conversion of the C$ Prime Rate Loan shall be issued in
accordance with the provisions of this Section 2.22; and
(v) a C$ Prime Rate Borrowing may not be converted into a
Canadian B/A Borrowing if an Event of Default has occurred and
is continuing, subject to Section 2.22(m) below.
(l) If the Canadian Administrative Agent determines in good
faith, which determination shall be final, conclusive and binding upon the
Canadian Borrower, and notifies the Canadian Borrower that, by reason of
circumstances affecting the money market, there is no market for Bankers'
Acceptances, then:
(i) the right of the Canadian Borrower to request a
borrowing by way of Bankers' Acceptance shall be suspended
until the Canadian Administrative Agent determines that the
circumstances causing such suspension no longer exist and the
Canadian Administrative Agent so notifies the Canadian
Borrower; and
(ii) any notice relating to a borrowing by way of
Bankers' Acceptance which is outstanding at such time shall be
deemed to be a notice requesting a borrowing by way of C$
Prime Loans (all as if it were a notice given pursuant to
Section 2.03 (c)).
The Canadian Administrative Agent shall promptly notify the Canadian Borrower
and the Canadian Lenders of the suspension of the Canadian Borrower's right to
request a borrowing by way of Bankers' Acceptance and of the termination of such
suspension.
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(m) Notwithstanding any contrary provision hereof, if an Event
of Default has occurred and is continuing and the Canadian Administrative Agent,
at the request of the Canadian Lenders with Bankers' Acceptance Exposure
representing a majority of the total Bankers' Acceptances Exposure, so notifies
the Canadian Borrower, then, so long as an Event of Default is continuing (i) no
outstanding C$ Revolving Borrowing may be converted to or continued as a
Borrowing by way of Bankers' Acceptances and (ii) unless repaid, each Canadian
BA Borrowing shall be converted to a Borrowing of C$ Prime Loans at the end of
the Contract Period applicable thereto.
(n) At the option of the Canadian Borrower and any Canadian
Lender, Bankers' Acceptances under this Agreement to be accepted by that
Canadian Lender may be issued in the form of depository bills for deposit with
The Canadian Depository for Securities Limited pursuant to the Depository Bills
and Notes Act (Canada). All depository bills so issued shall be governed by the
provisions of this Section 2.22.
SECTION 2.23. Reallocation. (a) The Borrowers may, from time
to time, but not more than four times per calendar year, from and after the
Effective Date until the earlier of the Maturity Date and the termination of the
Canadian Commitments, temporarily reduce, in whole or in part, or increase, the
Canadian Commitments and/or the Additional US Commitments, upon giving an
irrevocable written notice (each, a "Reallocation Notice") to the Administrative
Agent and the Canadian Administrative Agent at least five (5) Business Days
prior to the date on which such reduction or increase is to take effect. Each
reduction or increase in the Canadian Commitments shall result in an automatic
corresponding increase or reduction in the Additional US Commitments; provided
that the Canadian Commitments shall not, at any time, (i) be reduced to an
amount that is less than the Dollar Equivalent Amount of the aggregate Canadian
Revolving Loans and Canadian LC Exposure outstanding at such time or (ii) exceed
the amount of the Canadian Commitments as of the Effective Date, as such
Commitments may, from time to time, be permanently reduced or cancelled in
accordance with Section 2.11. Any amount of the Canadian Commitments reallocated
under this Section 2.23 as Additional US Commitments shall not be available to
the Canadian Borrower, and any amount of the Additional US Commitments
reallocated under this Section 2.23 as Canadian Commitments shall not be
available to the US Borrowers, until and only if such amounts are reallocated
back to the Canadian Commitments or the Additional US Commitments, as
applicable, in accordance with the terms and conditions of this Section 2.23.
(b) The ability of the Borrowers to reallocate the Additional
US Commitments and the Canadian Commitments in accordance with this Section 2.23
shall be subject to the conditions that (i) the representations and warranties
set forth in each Loan Document shall be true and correct in all material
respects on and as of the date of such reallocation with the same effect as
though made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and (ii) at
the time of and immediately following such reduction or increase, no Event of
Default or Default shall have occurred and be continuing. Each Reallocation
Notice shall specify the amount (expressed in Dollars) of any reduction or
increase in the Canadian Commitments and the corresponding increase or reduction
in the Additional US Commitments. Each reallocation requested under this Section
2.23 shall be in a minimum aggregate principal amount of $5,000,000 (or, if
less, the remaining amount of the
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applicable Commitments) and in integral multiples of $1,000,000. Each reduction
or increase in the Canadian Commitments under this Section 2.23 shall be made
ratably among the Canadian Lenders based on their respective Canadian
Commitments. Each reduction or increase in the Additional US Commitments under
this Section 2.23 shall be made ratably among the Canadian Lenders (or the
affiliate or branch of such Lender that is a US Lender) based on their
respective Canadian Commitments. The Canadian Administrative Agent shall
promptly after receiving a Reallocation Notice notify each Canadian Lender or
Additional US Lender, as the case may be, of the amount of its relevant
Commitment to be reallocated and the date of such reallocation.
(c) The Additional US Commitments shall be available to the US
Borrowers in addition to the US Commitments. Without limitation, (i) each US
Borrower may borrow for its account under the Additional US Commitments to the
same extent as it may utilize the US Revolving Commitments (subject to the same
interest rate options, minimum borrowing and repayment amounts and maturities),
provided that the aggregate principal amount of the Additional US Loans shall
not exceed the Additional US Commitments, (ii) only the Additional US Lenders
shall have a Commitment under the Additional US Commitments, (iii) Swingline
Loans and Letters of Credit are not available under the Additional US
Commitments, and (iv) the Additional US Lenders shall be entitled to the same
rights and subject to the same obligations with respect to the Additional US
Commitments as are the US Lenders with respect to the US Commitments.
SECTION 2.24. Currency Fluctuations, etc. (a) Not later than
1:00 p.m., New York City time, on each Calculation Date on which there are UK
Revolving Loans outstanding or a Borrowing Request has been delivered for a UK
Revolving Borrowing, the Administrative Agent shall determine the Pounds
Sterling Exchange Rate as of such Calculation Date and give notice thereof to
the UK Revolving Lenders, to the UK Borrower and to the Company. Not later than
1:00 p.m., Toronto time, on each Calculation Date on which there are Canadian
Revolving Loans or Canadian LC Exposure outstanding or a Borrowing Request for a
Canadian Revolving Borrowing or a request for a Canadian Letter of Credit has
been delivered, the Canadian Administrative Agent shall determine the Canadian
Exchange Rate as of such Calculation Date and give notice thereof to the
Canadian Revolving Lenders, to the Canadian Borrower and to the Company. The
Exchange Rates determined as set forth above in this paragraph (a) shall become
effective on the first Business Day immediately following the relevant
Calculation Date (a "Reset Date") and shall remain effective until the next
succeeding Reset Date.
(b) Not later than 5:00 p.m., New York City time, on each
Reset Date, the Administrative Agent shall determine the Dollar Equivalent
Amount of the Pounds Sterling UK Revolving Loans then outstanding (after giving
effect to any UK Revolving Loans to be made or repaid on such date) and notify
the UK Revolving Lenders, the UK Borrower and the Company of the results of such
determination. Not later than 5:00 p.m., Toronto time, on each Reset Date, the
Canadian Administrative Agent shall determine the Dollar Equivalent Amount of
the Canadian Revolving Loans then outstanding and the Canadian LC Exposure
(after giving effect to any Canadian Revolving Loans to be made or repaid on
such date) and notify the Canadian Revolving Lenders, the Canadian Borrower and
the Company of the results of such determination.
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(c) If on any Reset Date, the Dollar Equivalent Amount of the
aggregate principal amount of UK Revolving Loans outstanding exceeds 105% of the
aggregate amount of the UK Commitments, then the UK Borrower shall, within three
Business Days after notice thereof from the Administrative Agent, prepay UK
Revolving Loans in an aggregate amount such that, after giving effect thereto,
the Dollar Equivalent of all such UK Revolving Loans shall be equal to or less
than such aggregate amount of UK Commitments. If any such prepayment occurs on a
day which is not the last day of the then current Interest Period with respect
thereto, the UK Borrower shall pay to the UK Revolving Lenders such amounts, if
any, as may be required pursuant to Section 2.18.
(d) If on any Reset Date, the Dollar Equivalent Amount of the
aggregate principal amount of Canadian Revolving Loans and Canadian LC Exposure
outstanding exceeds 105% of the aggregate amount of the Canadian Commitments,
then the Canadian Borrower shall, within three Business Days after notice
thereof from the Canadian Administrative Agent, prepay Canadian Revolving Loans
(other than Canadian B/A Borrowings) in an aggregate amount such that, after
giving effect thereto, the Dollar Equivalent of all such Canadian Revolving
Loans, together with the Canadian LC Exposure, shall be equal to or less than
such aggregate amount of Canadian Commitments. In the event that after such
prepayment, the Dollar Equivalent Amount of the aggregate principal amount of
Canadian Revolving Loans and Canadian LC Exposure outstanding remains greater
than the aggregate amount of the Canadian Commitments, the Canadian Borrower
shall provide cash collateral for the Canadian LC Exposure and the Canadian B/A
Borrowings in the manner set forth in Sections 2.06 and 2.22, as applicable, to
the extent required to eliminate such excess.
ARTICLE III
Representations and Warranties
------------------------------
Each Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within the corporate powers of each Loan Party and have been duly authorized
by all necessary corporate and, if required, stockholder action. This Agreement
and each other Loan Document have been duly executed and delivered by each Loan
Party which is a party thereto and constitute a legal, valid and binding
obligation of each Loan Party which is a party thereto, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
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SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Company or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Company or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Company or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended September 30, 2001, reported on by
PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended March 31, 2002,
certified by a Financial Officer. Such financial statements present fairly, in
all material respects, the financial position and results of operations and cash
flows of the Company and its consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year-end audit adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
(b) Since September 30, 2001, there has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Company and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Company and its Subsidiaries does not infringe upon the rights of any other
Person, except for any lack of ownership or any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement, any other Loan Document or the
Transactions.
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(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither
the Company nor any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or any Subsidiary, as
applicable, has set aside on its books adequate reserves in accordance with GAAP
or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The Information Memorandum and the
other reports, financial statements, certificates or other information furnished
by or on behalf of any Borrower to the Administrative Agent, the Canadian
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished), taken as a whole, did not, as of the dates furnished
or delivered, contain any material misstatement of fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the
65
Borrowers represent only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time such information was
prepared.
SECTION 3.12. Equal and Ratable Debt. As of the date hereof, a
true and complete list of Equal and Ratable Debt is set forth on Schedule 3.12
hereto.
SECTION 3.13. Regulations T, U and X. Neither the Company nor
any of its Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U or X of the Board).
The making of the Loans hereunder and the use of the proceeds thereof as
contemplated hereby and the other Transactions will not violate or be
inconsistent with the provisions of the Regulations of the Board, including
Regulations T, U and X.
SECTION 3.14. Subsidiaries. Except as disclosed to the
Administrative Agent by the Company in writing from time to time after the
Effective Date, (a) Schedule 3.14-A sets forth the name and jurisdiction of
incorporation of each Subsidiary and, as to each such Subsidiary, the percentage
of each class of Equity Interests owned by any Loan Party and (b) there are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than stock options granted to employees or directors and
directors' qualifying shares) of any nature relating to any Equity Interests of
any Subsidiary. Schedule 3.14-B sets forth the name of each Excluded Subsidiary
(other than Immaterial Subsidiaries) as of the Effective Date. The Company owns,
directly or indirectly, all of the issued and outstanding Equity Interests of
each Subsidiary Borrower other than qualifying shares held by the directors of
such Subsidiary Borrower.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall
not become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received (i) from each party hereto either (x) 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 Agreement) that such party has signed a counterpart of
this Agreement and (ii) from the Company and each Subsidiary
Guarantor either (A) a counterpart of the Subsidiary Guarantee
or the Company Guarantee, as applicable, signed on behalf of
such Person or (B) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission
of a signed signature page of the Subsidiary Guarantee or the
Company Guarantee, as applicable) that such
66
Person has signed a counterpart of the Subsidiary Guarantee or
the Company Guarantee, as applicable.
(b) The Administrative Agent shall have received a
favorable written opinion (addressed to the Administrative
Agent and the Lenders and dated the Effective Date) of: (i)
Cravath, Swaine & ▇▇▇▇▇, counsel for the Loan Parties,
substantially in the form of Exhibit B-1; (ii) ▇▇▇ ▇▇▇,
general counsel of the Company on behalf of the Loan Parties,
substantially in the form of Exhibit B-2; and (iii) such other
special and local counsel as may be requested by the
Administrative Agent, which opinions shall cover such other
matters relating to the Loan Parties, this Agreement, the
other Loan Documents or the Transactions as the Required
Lenders shall reasonably request. The Borrowers hereby request
such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of the Loan Parties, the
authorization of the Transactions and any other legal matters
relating to the Loan Parties, this Agreement, the other Loan
Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated as of the Effective Date and signed by the
President, a Vice President or a Financial Officer of the
Company, confirming compliance with the conditions set forth
in paragraphs (a) through (e) of Section 4.02.
(e) The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be
reimbursed or paid by the Company hereunder.
(f) The Company or IOSC shall have completed a senior
subordinated or subordinated convertible issuance in the
aggregate amount of at least $125,000,000 on terms and
conditions reasonably satisfactory to the Administrative
Agent.
(g) The Company shall have provided evidence reasonably
satisfactory to the Administrative Agent that it has
successfully obtained the consent required by the outstanding
IOSC Notes, which consent shall (i) permit the Company to
create liens on its property to secure the Borrowings
hereunder if the Company equally and ratably secures the IOSC
Notes without causing a default thereunder, and (ii) permit
its Subsidiaries to guarantee the Company's obligations under
the Revolving Credit Facility to the same extent as permitted
under the Company's existing credit facility.
(h) The Lenders shall have received (i) satisfactory
audited consolidated financial statements of the Company and
IOSC for the 2001 and 2000 fiscal years and (ii) satisfactory
unaudited interim consolidated financial statements of the
Company and IOSC for each quarterly period ended subsequent to
the date of the latest financial
67
statements delivered pursuant to clause (i) of this paragraph
as to which such financial statements are available.
(i) The Company and its Subsidiaries shall have obtained
such amendments as are required by the Administrative Agent to
their respective agreements and instruments governing or
evidencing obligations having terms providing that such
obligations become due under any debt instrument, asset
securitization, derivative transaction or other financial
arrangement as a consequence of a downgrade in any one or more
of the Company's credit ratings (any such obligation becoming
so due, a "Ratings Trigger Event") to eliminate such terms or
shall have otherwise repaid or terminated each such agreement
or instrument and the Administrative Agent shall have received
reasonably satisfactory evidence thereof; provided that no
such amendment, repayment or termination shall be required in
respect of the Private Placement Notes. It is agreed that a
provision in any asset securitization agreement of the Company
or any Subsidiary which requires, once such provision has been
triggered as a result of a ratings change, that proceeds
available from time to time in excess of amounts required for
scheduled debt service and other required payments under such
securitization be applied to prepay indebtedness under such
securitization rather than being made available to the Company
or such Subsidiary, but does not otherwise require or permit
the acceleration of such remaining indebtedness (any such
provision, a "Turbo Provision"), shall not constitute a
Ratings Trigger Event.
(j) The Administrative Agent shall have received
satisfactory evidence that the Company's existing revolving
credit facilities shall have been or shall simultaneously be
terminated and all amounts thereunder paid in full.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall not become effective unless each
of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at
or prior to 3:00 p.m., New York City time, on May 31, 2002 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to
issue or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Company and
its Subsidiaries set forth in this Agreement shall be true and
correct in all material respects on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or
extension of such Letter of Credit, as applicable, no Default
shall have occurred and be continuing.
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(c) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, there shall be available to IOSC, the Canadian Borrower
and the UK Borrower a minimum of $600,000,000 in total conduit facilities under
the Securitization Agreements, whether drawn or undrawn.
(d) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, there shall be available to IOSC, the Canadian Borrower
and the UK Borrower a minimum of $100,000,000 of unused availability under the
Securitization Agreements.
(e) There shall have been no change since the date hereof to
the 1996 Capital Support Agreement.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a)
through (e) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements; Ratings Change and Other
Information. The Company will furnish to the Administrative Agent and each
Lender:
(a) within 105 days after the end of each fiscal year of
each of the Company and IOSC, their respective audited
consolidated balance sheets and related statements of
operations, stockholders' equity and cash flows as of the end
of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
reported on by PricewaterhouseCoopers LLP or other independent
public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without
any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements
present fairly in all material respects the financial
condition and results of operations of each of the Company and
IOSC and their respective consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently
applied;
(b) within 55 days after the end of each of the first
three fiscal quarters of each fiscal year of each of the
Company and IOSC, their respective consolidated balance sheets
and related statements of operations and cash flows as of the
end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in
69
comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of
the Company and IOSC and their respective consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial
statements under clause (a) or (b) above, a certificate of a
Financial Officer of the Company (i) certifying as to whether
a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with
Sections 6.01 and 6.09 and (iii) stating whether any change in
GAAP or in the application thereof has occurred that affects
such financial statements since the date of the audited
financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate;
(d) promptly after the same become publicly available,
copies of all periodic and other reports and proxy statements
filed by the Company or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding
to any or all of the functions of said Commission, or with any
national securities exchange, or distributed by the Company to
its shareholders generally, as the case may be;
(e) promptly after ▇▇▇▇▇'▇ or S&P shall have announced a
change in the rating established or deemed to have been
established for the Index Debt, written notice of such rating
change; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and
financial condition of the Company or any Subsidiary, or
compliance with the terms of this Agreement or the other Loan
Documents, or any other information, as the Administrative
Agent or any Lender may reasonably request.
Information required to be delivered pursuant to this Section 5.01 shall be
deemed to have been delivered if such information, or one or more annual,
quarterly or other reports containing such information, shall have been posted
on the Company's website on the Internet at ▇▇▇▇://▇▇▇.▇▇▇▇.▇▇▇ or by the
Administrative Agent on an IntraLinks or similar site to which the Lenders have
been granted access or shall be available on the website of the Securities and
Exchange Commission at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇; provided that the Company shall
deliver paper copies of such information to any Lender that requests such
delivery and provided further that such information shall only be deemed to have
been delivered when posted on any such website upon notification by the Company
to the Lenders of such posting.
SECTION 5.02. Notices of Material Events. The Borrowers will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
70
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental
Authority against or affecting the Company or any Affiliate
thereof that could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or
together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Company
and its Subsidiaries in an aggregate amount exceeding
$20,000,000; and
(d) any other development that results in, or could
reasonably be expected to result in, a Material Adverse
Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company, on behalf of all
of the Borrowers, setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect
thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of its Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises,
including but not limited to all trademarks, patents, service marks, trade names
and copyrights material to the conduct of its business; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax
liabilities, prior to the time at which the failure to pay the same could
reasonably be expected to result in a Material Adverse Effect, and will pay all
lawful claims which, if unpaid, might become a Lien upon the property of the
Company or any Subsidiary, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Company or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment pending such
contest could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted, and (b) maintain, with financially
sound and reputable insurance companies, insurance in such amounts and against
such risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent, Canadian Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make
71
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and, in the presence of its officers, with its
independent accountants, all at such reasonable times and as often as reasonably
requested.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The
proceeds of the Loans (including but not limited to Letters of Credit) will be
for general corporate purposes of the Company and its Subsidiaries. Such
proceeds may not be used to repay, either directly or indirectly, the Private
Placement Notes, it being understood that funds from other credit facilities and
sources may be used to repay the Private Placement Notes and any such repayment
shall not be viewed as prohibited by this Agreement. No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations T, U and X.
SECTION 5.09. Continued Ownership of Each Subsidiary Borrower.
The Company shall continue to own, directly or indirectly, all of the issued and
outstanding capital stock of each Subsidiary Borrower, other than qualifying
shares held by the directors of such Subsidiary Borrower, provided, however that
this Section 5.09 shall apply to the Company's direct or indirect ownership of a
Subsidiary Borrower only (i) as a condition to such Subsidiary Borrower
obtaining a Loan hereunder and (ii) if and so long as such Subsidiary Borrower
has outstanding Loans.
SECTION 5.10. Additional Guarantors. With respect to any new
Subsidiary (other than an Excluded Subsidiary) created or acquired after the
Effective Date by the Company or any Subsidiary (which, for the purposes of this
Section 5.10, shall include any existing Subsidiary that ceases to be an
Excluded Subsidiary), the Company shall cause such new Subsidiary to become a
party to the Subsidiary Guarantee and to deliver to the Administrative Agent a
certificate of Subsidiary, substantially in the form of the certificate
delivered by the Subsidiary Guarantors on the Effective Date in accordance with
Section 4.01(c), with appropriate insertions and attachments, and if requested
by the Administrative Agent, deliver to the Administrative Agent legal opinions
related to the matters covered with respect to the Subsidiary Guarantors in the
opinions delivered on the Effective Date in accordance with Section 4.01(b),
which opinions shall be in the form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of
72
Credit have expired or terminated and all LC Disbursements shall have been
reimbursed, each Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Financial Condition Covenants. (a) Corporate
Leverage Ratio. The Company will not permit the Corporate Leverage Ratio as at
the last day of any period of four consecutive fiscal quarters of the Company
ending with any fiscal quarter set forth below to exceed the ratio set forth
below opposite such fiscal quarter:
Corporate
Fiscal Quarter Ending Leverage Ratio
--------------------- --------------
June 30, 2002 4.00:1.00
September 31, 2002 3.50:1.00
December 31, 2002 3.50:1.00
March 31, 2003 3.25:1.00
June 30, 2003 3.25:1.00
September 31, 2003 3.25:1.00
December 31, 2003 3.25:1.00
March 31, 2004 3.00:1.00
June 30, 2004 3.00:1.00
September 31, 2004 3.00:1.00
December 31, 2004 3.00:1.00
March 31, 2005 and thereafter 3.00:1.00
(b) Consolidated Interest Expense Ratio. The Company will not
permit the Consolidated Interest Expense Ratio for any period of four
consecutive fiscal quarters to be less than 1.25:1.00.
(c) Consolidated Asset Test Ratio. Unless and until the
Improved Ratings Condition is satisfied for at least 180 consecutive days, the
Company will not permit the Consolidated Asset Test Ratio at any time to be less
than 1.00:1.00.
(d) Eligible Assets Ratio. Unless and until the Improved
Ratings Condition is satisfied for at least 180 consecutive days, the Company
will not permit the Eligible Assets Ratio at any time to be less than 1.00:1.00.
The Administrative Agent shall have the right, at any time when a Default or
Event of Default has occurred and is continuing and on up to one other
73
occasion in any calendar year (excluding the initial review performed by the
Administrative Agent as of December 31, 2001), to review the calculation of
Eligible Assets specified on Schedule 6.01 and the Borrowers shall pay the
reasonable fees (including reasonable and customary internally allocated fees of
employees of the Administrative Agent) and expenses associated with conducting
such a review. As a result of such review, the Administrative Agent shall have
the right to adjust any of the criteria for calculating Eligible Assets as set
forth on such Schedule, to establish new criteria and/or to adjust the
applicable advance rates for different categories of Eligible Assets, in each
case in its reasonable credit judgment, subject to the approval of the Required
Lenders in the case of adjustments, new criteria or changes in the applicable
advance rates which have the effect of increasing the amount of Eligible Assets.
Any such changes to Schedule 6.01 shall become effective five days after
delivery of written notice thereof to the Company.
SECTION 6.02. Liens. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or
any Subsidiary existing on the date hereof and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to
any other property or asset of the Company or any Subsidiary
and (ii) such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof;
(c) any Lien existing on any property or asset prior to
the acquisition thereof by the Company or any Subsidiary or
existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person
becomes a Subsidiary; provided that (i) such Lien is not
created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case
may be, (ii) such Lien shall not apply to any other property
or assets of the Company or any Subsidiary and (iii) such Lien
shall secure only those obligations which it secures on the
date of such acquisition or the date such Person becomes a
Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding
principal amount thereof;
(d) Liens on fixed or capital assets acquired,
constructed or improved by the Company or any Subsidiary;
provided that (i) such security interests secure Indebtedness
permitted by this Agreement, (ii) such security interests and
the Indebtedness secured thereby are incurred prior to or
within 180 days after such acquisition or the completion of
such construction or improvement, (iii) the Indebtedness
secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other
property or assets of the Company or any Subsidiary;
74
(e) Liens securing Indebtedness that refinances or
replaces Indebtedness referred to in clauses (c) or (d) above;
provided that (i) such Liens do not extend to assets not
subject to the Liens securing the Indebtedness so refinanced
or replaced and (ii) the principal amount of such refinancing
or replacement Indebtedness does not exceed the principal
amount of the Indebtedness so refinanced or replaced;
(f) Liens on the assets of Finance Subsidiaries arising
in connection with any Securitization Transaction, limited in
each case to the accounts (including lease receivables) and
chattel paper therein or in any trust or similar entity
utilized to effect such Securitization Transaction, to any
equipment giving rise to such accounts and to proceeds of the
foregoing; and
(g) Liens securing Indebtedness the aggregate principal
amount of which, when added to the then outstanding aggregate
amount of all Securitization Transactions and all other sales
and discounting transactions of Subsidiaries other than the
Finance Subsidiaries contemplated by Section 6.10 do not in
the aggregate exceed 10% of Consolidated Net Worth.
SECTION 6.03. Fundamental Changes. (a) The Company will not,
and will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, transfer, lease or otherwise dispose of (in one transaction or in a series
of transactions) assets (including Equity Interests in Subsidiaries)
constituting all or substantially all of the assets of the Company and the
Subsidiaries, taken as a whole (whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Person may merge into the Company in a transaction in which the Company is the
surviving corporation, (ii) any Person may merge into any Subsidiary Guarantor
in a transaction in which the surviving entity is a Subsidiary Guarantor, (iii)
any Person (other than the Company or a Subsidiary Guarantor) may merge into a
Subsidiary that is not a Subsidiary Guarantor in a transaction in which the
surviving entity is a Subsidiary, (iv) asset transfers permitted by Section 6.04
may be effected by means of mergers and (v) any Subsidiary may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders; provided that any such merger involving a Person
that is not a Wholly Owned Subsidiary immediately prior to such merger shall not
be permitted unless also permitted by Section 6.05.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the date
of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.04. Dispositions of Property. The Company will not,
and will not permit any Subsidiary to, Dispose of any of its property (other
than cash), whether now owned or hereafter acquired, or, in the case of any
Subsidiary, issue or sell any shares of such Subsidiary's Equity Interests to
any Person, except:
75
(a) the Disposition of obsolete, worn out, used or
surplus property in the ordinary course of business, including
sales of equipment leased by the Company and the Subsidiaries
to third parties at the ends of the lease terms applicable
thereto;
(b) the sale and leasing of inventory in the ordinary
course of business;
(c) Dispositions of property by the Company or any
Subsidiary to the Company or any Subsidiary Guarantor;
(d) Dispositions of property by any Subsidiary that is
not a Subsidiary Guarantor to any other Subsidiary that is not
a Subsidiary Guarantor;
(e) transfers of equipment and related agreements to
Finance Subsidiaries for sale or leasing to customers in the
ordinary course of business;
(f) other Dispositions of property by the Company or any
Subsidiary Guarantor to any Subsidiary that is not a
Subsidiary Guarantor, but only to the extent permitted by
Section 6.05;
(g) investments, loans, advances and acquisitions
permitted by Section 6.05 and Restricted Payments permitted by
Section 6.06;
(h) the sale or issuance of any Subsidiary's Equity
Interests to the Company or any Subsidiary, to the extent
permitted by Section 6.05;
(i) Dispositions permitted by Section 6.10 and other
Dispositions by Finance Subsidiaries in connection with
Securitization Transactions; and
(j) Dispositions of property not permitted by the
preceding clauses (a) through (i) having a fair market value
not to exceed $100,000,000 in the aggregate from and after the
Effective Date.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions. The Company will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a Wholly Owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) Permitted Acquisitions;
76
(c) equity investments, loans and advances by the Company
and the Subsidiaries existing on the date hereof in or to
Subsidiaries and, in the case of loans and advances greater
than $1,000,000, listed on Schedule 6.05;
(d) equity investments, loans or advances made by the
Company or any Subsidiary in or to any Subsidiary Guarantor
and made by any Subsidiary in or to the Company;
(e) equity investments, loans or advances made by any
Subsidiary that is not a Subsidiary Guarantor in or to any
other Subsidiary that is not a Subsidiary Guarantor;
(f) equity investments in, loans and advances to and
Guarantees of obligations of Finance Subsidiaries in the
ordinary course of business;
(g) other equity investments, loans or advances made by
the Company and the Subsidiary Guarantors after the date of
this Agreement in or to Subsidiaries that are not Subsidiary
Guarantors (it being agreed that any disposition of assets
referred to in Section 6.04(f) with a fair market value
greater than the value of the consideration received by the
transferor shall, to the extent of such excess, be deemed an
investment referred to in this clause (g)); provided, that the
sum of (i) all such investments, net of all returns of capital
after the date of this Agreement from Subsidiaries that are
not Subsidiary Guarantors to the Company and the Subsidiary
Guarantors, (ii) all such outstanding loans and advances and
(iii) all Guarantees of outstanding Indebtedness referred to
in clause (l) below shall not at any time exceed $50,000,000;
(h) investments by Finance Subsidiaries in any
special-purpose entity used to effect a Securitization
Transaction;
(i) intercompany investments, loans and advances arising
in connection with pooled cash management activities of the
Company and the Subsidiaries;
(j) Guarantees existing on the date hereof and set forth
on Schedule 6.05, and any extensions, renewals and
replacements of any such Guarantee that do not result in an
increase of the outstanding principal amount of Indebtedness
guaranteed pursuant to such Guarantee;
(k) Guarantees of the obligations of Subsidiaries under
operating leases;
(l) Guarantees by the Company of obligations of any
Subsidiary Guarantor and by any Subsidiary of Indebtedness of
the Company or any Subsidiary Guarantor;
(m) Guarantees by any Subsidiaries that are not
Subsidiary Guarantors of obligations of other Subsidiaries
that are not Subsidiary Guarantors;
(n) other Guarantees by the Company and the Subsidiary
Guarantors after the date of this Agreement of Indebtedness of
Subsidiaries that are not Subsidiary Guarantors (but subject
to the limitation set forth in clause (g) above);
77
(o) investments accepted by the Company or any Subsidiary
in the ordinary course of business in satisfaction of unpaid
obligations owed to it, and other de minimis investments
acquired in the ordinary course of business;
(p) loans and advances to officers and employees of the
Company and the Subsidiaries in the ordinary course of
business; and
(q) other investments in, loans and advances to, and
Guarantees of obligations of Persons that are not Subsidiaries
in an aggregate amount any time (net of returns of capital)
not greater than $25,000,000.
SECTION 6.06. Restricted Payments. Unless and until the
Improved Ratings Condition has been satisfied for at least 180 consecutive days
(and remains satisfied), the Company will not, and will not permit any of its
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except (a) the Company may declare and pay
dividends with respect to its Equity Interests payable solely in additional
shares of its common stock, (b) Subsidiaries may declare and pay dividends
ratably with respect to their Equity Interests, (c) the Company may make
Restricted Payments pursuant to and in accordance with stock option plans or
other benefit plans for management, employees or directors of the Company and
its Subsidiaries, and (d) the Company may declare or pay dividends provided that
such payments shall not, in the aggregate, exceed in any fiscal year the higher
of (x) $.16 per outstanding share of the Company's common stock (as such per
share amount shall be adjusted to take account of stock splits and dividends,
share combinations and other similar transactions affecting the Company's common
stock) and (y) the consolidated net income of the Company and its Subsidiaries
for the immediately preceding fiscal year.
SECTION 6.07. Transactions with Affiliates. The Company will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Company or such Subsidiary
than would prevail in an arm's-length basis from unrelated third parties, (b)
transactions between or among the Company and its Wholly Owned Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 6.06.
SECTION 6.08. Subsidiary Indebtedness. The Company will not
permit any of its Subsidiaries, directly or indirectly, to create, incur,
assume, suffer to exist, Guarantee or otherwise become, be or remain liable with
respect to any Indebtedness (other than Excluded Debt, as defined below) in an
aggregate amount outstanding (as to all Subsidiaries) at any time in excess of
$25,000,000 plus the amount of Indebtedness outstanding on the date hereof
(other than Excluded Debt outstanding on the date hereof). For purposes of this
Section 6.08, "Excluded Debt" shall mean (i) Indebtedness owing exclusively to
the Company or another Subsidiary, (ii) Indebtedness of a Subsidiary outstanding
on the date that the Company acquires such Subsidiary, (iii) Indebtedness with
respect to property to be used by the Company or its Subsidiaries, the interest
on which Indebtedness is exempt from Federal income tax pursuant to Section 103
of the Code, (iv) Indebtedness of any Foreign Subsidiary that is not Guaranteed
by
78
the Company or any other Subsidiary, (v) Indebtedness of Finance Subsidiaries
owing to the Company or any of its Subsidiaries, (vi) Indebtedness of Finance
Subsidiaries to a Person or Persons other than the Company and its Subsidiaries,
provided that such Indebtedness is not Guaranteed by the Company or any of its
Subsidiaries, (vii) Indebtedness of Borrowers and Subsidiary Guarantors, (viii)
Indebtedness existing on the date hereof and set forth on Schedule 6.08, and
Indebtedness refinancing or replacing such Indebtedness (provided that such
Indebtedness (A) either (x) matures after the Maturity Date or (y) has a
weighted average life to maturity not less than that of the Indebtedness being
refinanced and (B) contains terms and conditions in respect of mandatory
prepayment or redemption events and events of default and priority ranking which
are not less favorable to the Lenders than the Indebtedness being refinanced),
or (ix) Indebtedness under this Agreement.
SECTION 6.09. Capital Expenditures. The Company will not, and
will not permit any of its Subsidiaries to, make or commit to make any Capital
Expenditure, except if as a result thereof Capital Expenditures of the Company
and its Subsidiaries, net of all proceeds received from dispositions of
property, plant and equipment, and net of "equipment on operating leases" (as
such term is used and defined in the Company's statement of cash flow in its
2001 Annual Report), would exceed the amount set forth below for the
corresponding fiscal year:
Fiscal Year Capital Expenditures
----------- --------------------
2002 $160,000,000
2003 $155,000,000
2004 $130,000,000
; provided, that (a) up to 25% of any such amount referred to above, if not so
expended in the fiscal year for which it is permitted, may be carried over for
expenditure in the next succeeding fiscal year and (b) Capital Expenditures made
pursuant to this Section during any fiscal year shall be deemed made, first, in
respect of amounts permitted for such fiscal year as provided above and, second,
in respect of amounts carried over from the prior fiscal year pursuant to clause
(a) above.
SECTION 6.10. Sale, Discount of Receivables; Sale, Leaseback
Transactions. The Company will not, and will not permit its Subsidiaries other
than the Finance Subsidiaries to enter into any Securitization Transaction or
sell or discount any Eligible Assets with recourse or sell and lease back any
fixed asset unless after giving effect thereto the aggregate amount of the
financings represented by all such transactions when added to the outstanding
aggregate principal amount of all Indebtedness secured by Liens permitted by
Section 6.02(g) do not exceed 10% of Consolidated Net Worth.
SECTION 6.11. Optional Payments of Certain Debt Instruments.
Unless and until the Improved Ratings Condition has been satisfied for at least
180 consecutive days, the Company will not, and will not permit any of its
Subsidiaries to, Prepay any Restricted Indebtedness; provided that, so long as
no Default or Event of Default shall have occurred and be continuing at the time
of or after giving effect to such transactions, (a) the Company or any
Subsidiary may Prepay Restricted Indebtedness that matures prior to December 15,
2003 (or, if
79
the condition set forth in either clause (b) of the proviso in the definition of
"Maturity Date" shall have been satisfied, May 24, 2005), (b) the Company or any
Subsidiary may Prepay Indebtedness under any revolving credit facility,
revolving line of credit or similar arrangement, (c) the Company or any
Subsidiary may Prepay other Restricted Indebtedness with excess cash not
required for working capital or for the satisfaction of mandatory payment
obligations (provided that (A) neither the Company nor any Subsidiary shall
incur additional Indebtedness (including under this Agreement) to Prepay such
Restricted Indebtedness and (B) there shall be no outstanding Loans under this
Agreement at the time of such Prepayment) and (d) the Company or any Subsidiary
may Prepay Restricted Indebtedness with the proceeds of Indebtedness incurred to
refinance such Restricted Indebtedness ("Refinancing Indebtedness") so long as
such Refinancing Indebtedness (i) either (x) matures after the Maturity Date or
(y) has a weighted average life to maturity not less than that of the
Indebtedness being refinanced and (ii) contains terms and conditions in respect
of mandatory prepayment or redemption events and events of default and priority
ranking which are not less favorable to the Lenders than the Indebtedness being
refinanced.
SECTION 6.12. Ratings Trigger Events. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement which contains
Ratings Trigger Events, except for (i) any such agreement or arrangement which
is terminated or amended to eliminate such Ratings Trigger Events on or prior to
the Effective Date in accordance with Section 4.01(i) and (ii) with respect to
the Private Placement Notes (as such Ratings Trigger Events provisions are in
effect on the date hereof).
SECTION 6.13. Restrictive Agreements. The Company will not,
and will not permit any of its Subsidiaries to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that by its
terms prohibits, restricts or imposes any condition upon (a) the ability of the
Company or any Subsidiary Guarantor to create, incur or permit to exist any Lien
upon any of its property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Company or any other Subsidiary or
the ability of any Subsidiary Guarantor to Guarantee Indebtedness of the Company
or any other Subsidiary; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by the Loan Documents, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.13 (but shall apply to any amendment or
modification expanding the scope of, any such restriction or condition), (iii)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary or of any assets pending such
sale, provided such restrictions and conditions apply only to the Subsidiary or
assets, as the case may be, to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof, (vi) the foregoing will not prohibit customary restrictions
and conditions imposed by any agreement relating to any Securitization
Transaction, including restrictions on the transfer or encumbrance of the assets
subject to any such transaction or on dividends, distributions or other
transfers by
80
any trust, partnership, corporation or other entity used to facilitate any such
transaction, and (vii) the foregoing shall not prohibit the incurrence of Equal
and Ratable Debt, so long as at the time of such incurrence and after giving pro
forma effect thereto, the Company is in compliance with the Eligible Assets
Ratio and the Administrative Agent has received a certificate of a Financial
Officer of the Company certifying as to such compliance.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall
occur:
(a) any Borrower shall fail to pay any principal of any
Loan or any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any
Loan or any fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable hereunder
or under any other Loan Document, when and as the same shall
become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by
or on behalf of the Company or any Subsidiary in or in
connection with this Agreement or any other Loan Document or
any amendment or modification thereof or waiver thereunder, or
in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this
Agreement or any other Loan Document or any amendment or
modification hereof or thereof or waiver hereunder or
thereunder, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) any Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02,
5.03 (with respect to any Borrower's existence), 5.08 or 5.09
or in Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement
or any other Loan Document (other than those specified in
clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after the
earlier of (i) first knowledge thereof by an executive officer
of any Loan Party and (ii) notice thereof from the
Administrative Agent to the Company (which notice will be
given at the request of any Lender);
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable;
81
(g) any event or condition (a "Cross Event") occurs that
results in any Material Indebtedness becoming due prior to its
scheduled maturity or that enables or permits the holder or
holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause, with the giving of notice if
required, any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness; provided,
further, that this clause (g) shall not apply to (i) a Ratings
Trigger Event in respect of the Private Placement Notes, if
and only if such Ratings Trigger Event or any acceleration of
the Private Placement Notes resulting therefrom is not a Cross
Event in respect of any other Material Indebtedness or (ii)
Turbo Provisions in asset securitization agreements;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Company or
any Subsidiary (other than any Immaterial Subsidiary) or its
debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any
Subsidiary (other than any Immaterial Subsidiary) or for a
substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the
foregoing shall be entered;
(i) the Company or any Subsidiary (other than any
Immaterial Subsidiary) shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or
similar official for the Company or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting
the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Company or any Subsidiary (other than any
Immaterial Subsidiary) shall become unable, admit in writing
its inability or fail generally to pay its debts as they
become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $15,000,000 shall be rendered
against the Borrower, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the
Borrower or any Subsidiary to enforce any such judgment;
82
(l) an ERISA Event shall have occurred that, in the
opinion of the Required Lenders, when taken together with all
other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect; or
(m) a Change in Control shall occur;
then, and in every such event (other than an event with respect to a Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to a Borrower described in clause (h) or (i) of this Article,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower.
With respect to all Bankers' Acceptances which have not
matured at the time the Administrative Agent takes any action pursuant to the
paragraph above, or in case of any event with respect to a Borrower described in
clauses (h) or (i) of this Article, the Canadian Borrower shall, at such time,
with respect to outstanding Bankers' Acceptances which have not matured, pay to
the Canadian Administrative Agent in full and absolute satisfaction of such
obligations an amount of cash equal to the aggregate undiscounted face amount of
all such unmatured Bankers' Acceptances and, upon such payment being made, the
Canadian Borrower shall have no further liability in respect of such Bankers'
Acceptances (except to the extent that any such payment is rescinded or
reclaimed by operation of law or otherwise) and the Canadian Lenders shall be
entitled to all benefits of, and will make and otherwise be responsible for all
payments due to the redeeming holder or any third parties under, such Bankers'
Acceptances.
On the first date on which the Administrative Agent has
terminated the Commitments and has declared the Loans then outstanding to be due
and payable pursuant to this Article VII as a result of an Event of Default, or
on the first date on which any event with respect to any Borrower described in
clause (h) or (i) of this Article occurs, the Lenders shall automatically and
without further act (including without limitation any payment to any other
Lender) be deemed to have exchanged (without novation) interests in the Loans
and LC Exposure (each interest in any Loan or any LC Exposure being referred to
as a "Claim", and each Facility of Loans and the LC Exposure under such
Facility, if any, being referred to as a "Claims Class") such that in lieu of
its Loan and LC Exposure in respect of each Claims Class in which it
participates as of such date (including its interest in the principal,
reimbursement, interest and fee obligations of each Borrower in respect of each
such Claims Class), each Lender shall hold a
83
percentage interest in every one of the Claims Classes (including the principal,
reimbursement, interest and fee obligations of each Borrower in respect of each
such Claims Class), whether or not such Lender shall previously have
participated therein, equal to the percentage of all the outstanding Claims
represented by such Lender's Claims. Each Lender, each Participant acquiring a
participation pursuant to Section 9.04(c) and each Borrower hereby consents and
agrees to the foregoing exchanges. All such exchanges effected pursuant to this
paragraph that involve a currency exchange shall be effected based upon the
Canadian Exchange Rate or Pounds Sterling Exchange Rate, as applicable,
applicable on such first date. Each Borrower agrees from time to time to execute
and deliver to the Administrative Agent or the Canadian Administrative Agent, as
applicable, all such instruments and documents as the Administrative Agent or
the Canadian Administrative Agent, as applicable, shall reasonably request to
evidence and confirm the respective interests of the Lenders after giving effect
to such exchanges. In addition, each applicable Lender and each Borrower agrees
with respect to any unmatured Bankers' Acceptances and undrawn LC Exposure under
any Facility to take such actions as may be specified by the Administrative
Agent or the Canadian Administrative Agent, as applicable, including funding its
share of such unmatured Bankers' Acceptances and/or undrawn LC Exposure under a
Facility into an escrow account maintained by the Administrative Agent or the
Canadian Administrative Agent, as applicable, for the purpose of giving effect
to the intent of the foregoing provisions relating to the exchange of interests.
Each Borrower, jointly and severally, agrees to indemnify each Lender for any
loss, cost or expense suffered or incurred by such Lender as a result of the
exchanges provided for herein (including any foreign exchange losses) promptly
upon submission of a written request therefor from such Lender.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and each Issuing Bank hereby irrevocably
appoint the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing as directed by the
Required Lenders (or such other number or
84
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Company or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Administrative Agent for
the account of the Lenders, unless and until written notice thereof is given to
the Administrative Agent by a Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrowers), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, each Issuing Bank and the Company.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Company, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring
85
Administrative Agent may, on behalf of the Lenders and the Issuing Banks,
appoint a successor Administrative Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Company to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Company and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
Each of the Canadian Lenders and the Canadian Issuing Bank
hereby agrees and confirms that the provisions of this Article VIII shall apply
to ▇.▇. ▇▇▇▇▇▇ Bank Canada as Canadian Administrative Agent upon the same terms
and subject to the same conditions as provided in this Article VIII mutatis
mutandis; provided that any successor Canadian Administrative Agent shall be a
bank with an office in Toronto, Canada, or Montreal, Canada, or an Affiliate of
any such bank.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. (a) Except in the case of notices and
other communications expressly permitted to be given by telephone (and subject
to paragraph (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to any Borrower, to it at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇
▇. ▇▇▇▇▇ (with a copy to ▇▇▇▇▇ ▇▇▇▇▇) (Telecopy No. (610)
408-7022);
(ii) if to the Administrative Agent, to it at JPMorgan
Chase Bank, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Loan and Agency
86
Services Group (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); provided that in
case of any notice or other communication relating to UK
Revolving Loans, the notice address shall be to ▇.▇. ▇▇▇▇▇▇
Europe Ltd., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (44-20)
7-777-2360), with copies to the first address set forth in
this clause (v) and to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (312)
541-6222);
(iii) if to the US Issuing Bank, to it at JPMorgan Chase
Bank, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of Loan and Agency Services Group (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), with copies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇) and ▇▇▇▇ ▇▇▇ (Telecopy o. (▇▇▇) ▇▇▇-▇▇▇▇;
(iv) if to the Swingline Lender, to it at JPMorgan Chase
Bank, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention of Loan and Agency Services Group (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), with copies to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇) and ▇▇▇▇ ▇▇▇ (Telecopy No. (312)
541-6221);
(v) if to the Canadian Administrative Agent, to it at ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, Royal Bank Plaza, South Tower,
Toronto, Ontario M5J 2J2, Attention of Corporate Banking
Associates (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇));
(vi) if to the Canadian Issuing Bank, to it at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention
of ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with
a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇)); and
(vii) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders hereunder
may be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent or the Canadian Administrative Agent, as applicable, and
the applicable Lender. The Administrative Agent or a Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
(c) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, the Canadian Administrative Agent, any Issuing Bank or
any Lender in exercising any right or power under this Agreement or under any
other Loan Document shall
87
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Canadian Administrative Agent, the Issuing Banks and
the Lenders under the Loan Documents are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or any other Loan Document or consent to any departure by any
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, the Canadian
Administrative Agent, any Lender or any Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement, any other Loan Document, nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by each Borrower and the
Required Lenders or by each Borrower and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.20(e) or (f) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender, or (vi) release the Company from its obligations
under the Parent Guarantee or release all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guarantee without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Canadian Administrative Agent, the US Issuing Bank, the Canadian
Issuing Bank or the Swingline Lender hereunder without the prior written consent
of the Administrative Agent, the Canadian Administrative Agent, the US Issuing
Bank, the Canadian Issuing Bank or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Canadian Administrative Agent and their Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby shall be
88
consummated), (ii) all reasonable out-of-pocket expenses incurred by any Issuing
Bank in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, the Canadian
Administrative Agent, the US Issuing Bank, the Canadian Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel for the
Administrative Agent, the US Issuing Bank, the Canadian Issuing Bank or any
Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement or any other Loan Document, including its rights
under this Section, or in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrowers shall indemnify the Administrative Agent,
the Canadian Administrative Agent, each Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by the parties hereto of their respective obligations hereunder or
the consummation of the Transactions or any other transactions contemplated
hereby or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by an Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Company or any of its Subsidiaries,
or any Environmental Liability related in any way to the Company or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
have resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrowers fail to pay any amount
required to be paid by any of them to the Administrative Agent, the Canadian
Administrative Agent, the US Issuing Bank, the Canadian Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Canadian Administrative
Agent, the US Issuing Bank, the Canadian Issuing Bank or the Swingline Lender,
as the case may be, such Lender's Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Canadian Administrative Agent,
the US Issuing Bank, the Canadian Issuing Bank or the Swingline Lender in its
capacity as such.
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(d) To the extent permitted by applicable law, each Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable not
later than 10 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of an Issuing Bank that issues any Letter of Credit), except that
(i) no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by a Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of an Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Canadian Administrative Agent, the US
Issuing Bank, the Canadian Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment under any Facility and the Loans at the time owing to it) with
the prior written consent (such consent not to be unreasonably withheld or
delayed) of:
(A) the Company, provided that no consent of the Company
shall be required for an assignment to a Lender, an Affiliate
of a Lender, an Approved Fund (as defined below) or, if an
Event of Default under clause (a), (b), (h) or (i) of Article
VII has occurred and is continuing, any other assignee; and
(B) the Administrative Agent and, in the case of an
assignment of Canadian Revolving Loans and/or Canadian
Commitments, the Canadian Administrative Agent, provided that
no consent of the Administrative Agent or the Canadian
Administrative Agent shall be required for an assignment to an
assignee that is (i) a Lender immediately prior to giving
effect to such assignment, (ii) an Affiliate of a Lender or
(iii) an Approved Fund.
(ii) Assignments shall be subject to the following
additional conditions:
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(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment under a particular
Facility, the amount of the Commitment of the assigning Lender
under each Facility subject to each such assignment
(determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000 unless each of the
Company and the Administrative Agent and, in the case of an
assignment of Canadian Revolving Loans and/or Canadian
Commitments, the Canadian Administrative Agent otherwise
consent, provided that no such consent of the Company shall be
required if an Event of Default under clause (a), (b), (h) or
(i) of Article VII has occurred and is continuing;
(B) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Agreement; provided
that this clause shall not be construed to prohibit assignment
of a proportionate part of all the assigning Lender's rights
and obligations in respect of Loans or Commitments under a
particular Facility;
(C) each of Canadian Lender (or, in the case of a
Schedule II/III Canadian Lender, its affiliate which is a US
Lender) and UK Lender (or its affiliate which is a US Lender)
(x) may not assign a portion of its interests under this
Agreement unless, after giving effect thereto, it shall be
able to comply with the reallocation described in Section 2.23
and (y) shall assign ratable portions of its Canadian
Commitment and Additional US Commitment;
(D) interests under the Canadian Commitments may only be
assigned to Scheduled Canadian Lenders;
(E) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
Assumption, together with a processing and recordation fee of
$3,500;
(F) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative
Questionnaire; and
(G) in the case of an assignment to a CLO (as defined
below), the assigning Lender shall retain the sole right to
approve any amendment, modification or waiver of any provision
of this Agreement, provided that the Assignment and Assumption
between such Lender and such CLO may provide that such Lender
will not, without the consent of such CLO, agree to any
amendment, modification or waiver described in the first
proviso to Section 9.02(b) that affects such CLO.
For the purposes of this Section 9.04(b), the terms "Approved
Fund" and "CLO" have the following meanings:
"Approved Fund" means (a) a CLO and (b) with respect to any
Lender that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in
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bank loans and similar extensions of credit and is managed by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Assumption the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.17, 2.18, 2.19 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.04 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Administrative Agent and, in the case of the Canadian
Lenders, the Canadian Administrative Agent, acting for this purpose as an agent
of the Borrowers, shall maintain at one of its offices a copy of each Assignment
and Assumption delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and each Borrower, the Administrative Agent, the Canadian
Administrative Agent, the Issuing Banks and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each Borrower, any
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent and, in the case of
assignments of Canadian Loans and/or Canadian Commitments, the Canadian
Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(c) (i) Any Lender may, without the consent of any Borrower,
the Administrative Agent, the Canadian Administrative Agent, any Issuing Bank or
the Swingline Lender, sell
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participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it under
any Facility); provided that (A) such Lender's obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (C) the
Borrowers, the Administrative Agent, the Canadian Administrative Agent, the
Issuing Banks and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of
this Section, the Borrowers agree that each Participant shall be entitled to the
benefits of Sections 2.17, 2.18 and 2.19 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.20(f) as though it were a
Lender.
(ii) A Participant shall not be entitled to receive any
greater payment under Section 2.17 or 2.19 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.19
unless the Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.19(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Canadian Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments
93
have not expired or terminated. The provisions of Sections 2.17, 2.18, 2.19 and
9.03 and Article VIII shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit
and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other obligations at
any time owing by such Lender or Affiliate to or for the credit or the account
of any Borrower against any of and all the obligations of any Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process. (a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
94
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
the Canadian Administrative Agent, any Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement against any
Borrower or its properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent, the Canadian Administrative Agent, the Issuing Banks and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any
95
other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to any Borrower and its
obligations, (g) with the consent of the Company or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Canadian
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
from a source other than a Borrower. For the purposes of this Section,
"Information" means all information received from any Borrower relating to a
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Canadian Administrative Agent, any Issuing Bank or
any Lender on a nonconfidential basis prior to disclosure by a Borrower;
provided that, in the case of information received from a Borrower after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. Conversion of Currencies. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto agrees,
to the fullest extent that it may effectively do so, that the rate of exchange
used shall be that at which, in accordance with normal banking procedures in the
relevant jurisdiction, the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
(b) The obligations of the Borrowers in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the Borrowers agree, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.13 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 9.14. Designated Senior Indebtedness. For the purposes
of the Indenture governing the 5% Convertible Subordinated Notes due May 1,
2007, dated as of May 13, 2002, the parties hereto expressly agree that the
Obligations under this Agreement shall constitute "Designated Senior
Indebtedness," as such term is defined therein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
IKON OFFICE SOLUTIONS, INC.
By _________________________
Name:
Title:
IOS CAPITAL, LLC
By _________________________
Name:
Title:
IKON CAPITAL, PLC
By _________________________
Name:
Title:
IKON CAPITAL, INC.
By _________________________
Name:
Title:
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
By _________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ BANK CANADA,
as Canadian Administrative Agent,
By _________________________
Name:
Title:
