EXHIBIT 99.1
EXECUTION COPY
CREDIT AGREEMENT
dated as of
November 4, 2005
among
SYSCO CORPORATION
and
SYSCO INTERNATIONAL, CO., a Nova Scotia unlimited liability company
as Borrowers,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK, N.A.,
as U.S. Administrative Agent,
and
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,
as Canadian Administrative Agent
________________________
BANK OF AMERICA, N.A., THE BANK OF TOKYO-MITSUBISHI, LTD.,
SUNTRUST BANK AND WACHOVIA BANK, NATIONAL ASSOCIATION,
AS CO-SYNDICATION AGENTS
WELLS FARGO BANK, N.A. AND TD SECURITIES (USA) LLC,
AS CO-DOCUMENTATION AGENTS
J.P. MORGAN SECURITIES INC., AS SOLE
BOOKRUNNER AND SOLE LEAD ARRANGER
===============================================================================
[CS&M Reference No. 6701-546]
TABLE OF CONTENTS
ARTICLE I Definitions.........................................................1
SECTION 1.01. Defined Terms.................................................1
SECTION 1.02. Classification of Loans and Borrowings.......................20
SECTION 1.03. Terms Generally..............................................21
SECTION 1.04. Accounting Terms; GAAP.......................................21
SECTION 1.05. Exchange Rate Calculations...................................21
ARTICLE II The Credits.......................................................21
SECTION 2.01. Commitments..................................................21
SECTION 2.02. Loans and Borrowings.........................................22
SECTION 2.03. Requests for Revolving Borrowings............................23
SECTION 2.04. Swingline Loans..............................................24
SECTION 2.05. Letters of Credit............................................25
SECTION 2.06. Funding of Borrowings and B/A Drawings.......................29
SECTION 2.07. Bankers' Acceptances.........................................30
SECTION 2.08. Interest Elections and Contract Periods......................33
SECTION 2.09. Termination and Reduction of Commitments.....................35
SECTION 2.10. Repayment of Loans and B/As; Evidence of Debt................36
SECTION 2.11. Prepayment of Loans..........................................36
SECTION 2.12. Fees.........................................................37
SECTION 2.13. Interest.....................................................39
SECTION 2.14. Alternate Rate of Interest...................................40
SECTION 2.15. Increased Costs..............................................40
SECTION 2.16. Break Funding Payments.......................................42
SECTION 2.17. Taxes........................................................42
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..43
SECTION 2.19. Mitigation Obligations; Replacement of Lenders...............45
SECTION 2.20. Increase in Commitments......................................46
SECTION 2.21. Extension of Maturity Date...................................48
ARTICLE III Representations and Warranties...................................49
SECTION 3.01. Organization; Powers.........................................49
SECTION 3.02. Authorization; Enforceability................................49
SECTION 3.03. Governmental Approvals; No Conflicts.........................49
SECTION 3.04. Financial Condition; No Material Adverse Change..............49
SECTION 3.05. Properties...................................................50
SECTION 3.06. Litigation and Environmental Matters.........................50
SECTION 3.07. Subsidiaries.................................................50
SECTION 3.08. Compliance with Laws and Agreements..........................51
SECTION 3.09. Investment and Holding Company Status........................51
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SECTION 3.10. Taxes........................................................51
SECTION 3.11. ERISA........................................................51
SECTION 3.12. Disclosure...................................................51
ARTICLE IV Conditions........................................................51
SECTION 4.01. Effective Date...............................................51
SECTION 4.02. Each Credit Event............................................53
ARTICLE V Affirmative Covenants..............................................53
SECTION 5.01. Financial Statements; Ratings Change and Other Information...53
SECTION 5.02. Notices of Material Events...................................55
SECTION 5.03. Existence; Conduct of Business...............................55
SECTION 5.04. Payment of Obligations.......................................56
SECTION 5.05. Maintenance of Properties; Insurance.........................56
SECTION 5.06. Books and Records; Inspection Rights.........................56
SECTION 5.07. Compliance with Laws.........................................56
SECTION 5.08. Use of Proceeds..............................................56
ARTICLE VI Negative Covenants................................................57
SECTION 6.01. Liens........................................................57
SECTION 6.02. Sale and Lease-back Transactions; Swap Agreements............59
SECTION 6.03. Ratio of Indebtedness to Capitalization......................59
SECTION 6.04. Fiscal Year..................................................59
SECTION 6.05. Transactions with Affiliates.................................59
SECTION 6.06. Tax Returns..................................................59
SECTION 6.07. Consolidation, Merger or Acquisition.........................59
SECTION 6.08. Sales and Other Dispositions.................................60
ARTICLE VII Events of Default................................................61
SECTION 7.01. Events of Default............................................61
SECTION 7.02. CAM Exchange.................................................63
SECTION 7.03. Letters of Credit............................................64
ARTICLE VIII Guarantee.......................................................66
ARTICLE IX The Agents........................................................67
ARTICLE X Miscellaneous......................................................69
SECTION 10.01. Notices.....................................................69
SECTION 10.02. Waivers; Amendments.........................................70
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SECTION 10.03. Expenses; Indemnity; Damage Waiver..........................71
SECTION 10.04. Successors and Assigns......................................73
SECTION 10.05. Survival....................................................75
SECTION 10.06. Counterparts; Integration; Effectiveness....................76
SECTION 10.07. Severability................................................76
SECTION 10.08. Right of Setoff.............................................76
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process..76
SECTION 10.10. WAIVER OF JURY TRIAL........................................77
SECTION 10.11. Headings....................................................77
SECTION 10.12. Confidentiality.............................................77
SECTION 10.13. Interest Rate Limitation....................................78
SECTION 10.14. Conversion of Currencies....................................78
SECTION 10.15. USA Patriot Act.............................................79
SECTION 10.16. Independence of Covenants...................................79
SECTION 10.17. FINAL AGREEMENT.............................................79
SECTION 10.18. Waiver of Notice of Termination Under Existing Credit
Agreement...................................................79
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SCHEDULES:
Schedule 2.01 - Commitments
Schedule 3.07 - Subsidiaries
Schedule 6.01 - Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
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CREDIT AGREEMENT dated as of November 4, 2005, among SYSCO
Corporation, a Delaware corporation, SYSCO International, Co., a
Nova Scotia unlimited liability company, the Lenders party
hereto, JPMorgan Chase Bank, N.A., as U.S. Administrative Agent,
and JPMorgan Chase Bank, N.A., Toronto Branch, as Canadian
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Acquisition" has the meaning assigned to such term in Section 6.08.
"Adjusted LIBO Rate" means, with respect to any Eurodollar 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.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by an 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.
"Agents" means the U.S. Administrative Agent and the Canadian
Administrative Agent.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the U.S. Prime Rate in effect on such day (or, in the case of
Loans or Borrowings made by the Canadian Lenders pursuant to the Canadian
Commitments denominated in U.S. Dollars, the rate per annum announced from time
to time by the Canadian Administrative Agent as its U.S. base rate in effect at
its office in Toronto) and (b) 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 U.S. Prime Rate, the U.S. base rate in effect in Toronto or the Federal
Funds Effective Rate shall be effective from and including the effective date of
such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
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"Applicable Agent" means (a) with respect to a Loan or Borrowing made by
the Company, and with respect to any payment hereunder that does not relate to a
particular Loan or Borrowing, the U.S. Administrative Agent, and (b) with
respect to a Loan or Borrowing denominated in Canadian Dollars or B/A, the
Canadian Administrative Agent.
"Applicable Percentage" means (a) with respect to any U.S. Lender, the
percentage of the aggregate U.S. Commitments represented by such Lender's U.S.
Commitment or (b) with respect to any Canadian Lender, the percentage of the
aggregate Canadian Commitments represented by such Lender's Canadian Commitment.
If the U.S. Commitments or Canadian Commitments, as applicable, have terminated
or expired, the Applicable Percentages shall be determined based upon the U.S.
Commitments or Canadian Commitments, as applicable, most recently in effect,
giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Revolving Loan or B/A Drawing, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Eurodollar/ B/A Spread" or "Facility Fee Rate", as the case
may be, based upon the ratings by S&P and Moody's, respectively, applicable on
such date to the Index Debt:
INDEX DEBT RATINGS FACILITY FEE RATE EURODOLLAR/B/A SPREAD
------------------ ----------------- ---------------------
Category 1
AA- or higher by S&P
Aa3 or higher by Moody's 0.04% 0.13%
Category 2
A+ by S&P
A1 by Moody's 0.05% 0.15%
Category 3
A by S&P
A2 by Moody's 0.06% 0.19%
Category 4
A- by S&P
A3 by Moody's 0.07% 0.28%
Category 5
BBB+ or lower by S&P
Baa1 or lower by Moody's 0.10% 0.35%
For purposes of the foregoing, (i) if either S&P or Moody's 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 5; (ii) if the ratings
established or deemed to have been established by S&P and Moody's for the Index
Debt shall fall within different Categories, the Applicable Rate shall be based
on the higher of the two ratings, i.e., that appearing in the numerically lower
Category, unless one of the two ratings is two or more Categories lower than the
other, in which case the Applicable Rate shall be determined by reference to the
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Category next below that of the higher of the two ratings; and (iii) if the
ratings established or deemed to have been established by S&P and Moody's for
the Index Debt shall be changed (other than as a result of a change in the
rating system of S&P or Moody's), 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
Agents 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 S&P or Moody's shall change, or
if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Borrowers 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.
"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 10.04), and accepted by an Agent, in the form of Exhibit A
or any other form approved by an Agent.
"Attributable Debt" means, with respect to any Sale and Leaseback
Transaction not giving rise to Capital Lease Obligations, as of any date of
determination, the total obligation (discounted to present value at the rate of
interest implicit in the lease included in such transaction) of the lessee for
rental payments (other than amounts required to be paid on account of property
taxes, maintenance, repairs, insurance, assessments, utilities, operating and
labor costs and other items which do not constitute payments for property
rights) during the remaining portion of the term (including extensions which are
at the sole option of the lessor) of the lease included in such transaction.
Notwithstanding the foregoing, in the case of any lease subject to a Sale and
Leaseback Transaction which is (or by its express terms will at some future date
become) terminable by the lessee upon the payment of a penalty in a fixed
amount, or in an amount which, as of such date of determination, is
mathematically determinable with respect to the then earliest date upon which
such lease may be so terminated (the "earliest termination date"), the lessee's
rental obligation under such lease may at the Company's election be either (i)
determined in accordance with the preceding sentence (disregarding the amount of
any such termination penalty), or (ii) the sum of (a) the lessee's obligation
(discounted, as aforesaid) for rental payments, if any, during the portion of
the term ending on the earliest termination date, plus (b) the amount of such
penalty (similarly discounted if, as of the date of determination, the earliest
termination date has not yet occurred).
"Augmenting Lender" has the meaning assigned to such term in Section
2.20(a).
"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.
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"B/A" and "Banker's Acceptances" means a bill of exchange governed by the
Bills of Exchange Act (Canada) or a depository bill issued in accordance with
the Depository Bills and Notes Act (Canada), denominated in Canadian Dollars,
drawn by the Canadian Borrower and accepted by a Canadian Lender in accordance
with the terms of this agreement.
"B/A Drawing" means B/As accepted and purchased on the same date and as to
which a single Contract Period is in effect including any B/A Equivalent Loans
made on the same date and as to which a single Contract Period is in effect. For
greater certainty, all provisions of this Agreement which are applicable to B/As
are also applicable, mutatis mutandis, to B/A Equivalent Loans.
"B/A Equivalent Loan" has the meaning assigned to such term in Section
2.07(k).
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means the Company or the Canadian Borrower.
"Borrowing" means (a) Revolving Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) where the context requires,
a B/A Drawing, or (c) a Swingline Loan.
"Borrowing Minimum" means (a) in the case of a Borrowing denominated in
U.S. Dollars, US$20,000,000 and (b) in the case of a Borrowing denominated in
Canadian Dollars, Cdn.$20,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing denominated in
U.S. Dollars, US$5,000,000 and (b) in the case of a Borrowing denominated in
Canadian Dollars, Cdn.$5,000,000.
"Borrowing Request" means a request by a 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 Eurodollar
Loan, the term "Business Day" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market, and (b)
when used in connection with a Borrowing denominated in Canadian Dollars, the
term "Business Day" shall also exclude any day on which banks are not open for
business in Toronto.
"Calculation Date" means the last Business Day of each calendar month and
the date of each Notice of Borrowing with respect to a Loan or request for B/A,
or request for a Letter of Credit.
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"CAM" means the mechanism for the allocation and exchange of interests in
Loans and other extensions of credit hereunder and collections in respect
thereof established in Section 7.02.
"CAM Exchange" means the exchange of the Lender's interests provided for in
Section 7.02.
"CAM Exchange Date" means the date on which any event referred to in
paragraph (h) or (i) of Section 7.01 shall occur in respect of the Company.
"CAM Percentage" means, as to each Lender, a fraction, expressed as a
decimal, of which (a) the numerator shall be the aggregate U.S. Dollar
Equivalent (determined on the basis of Exchange Rates prevailing on the CAM
Exchange Date) of the Specified Obligations owed to such Lender (whether or not
at the time due and payable) and such Lender's participations in undrawn amounts
of Letters of Credit immediately prior to the CAM Exchange Date and (b) the
denominator shall be the aggregate U.S. Dollar Equivalent (as so determined) of
the Specified Obligations owed to all the Lenders (whether or not at the time
due and payable) and the aggregate undrawn amount of all Letters of Credit
immediately prior to the CAM Exchange Date.
"Canadian Administrative Agent" means JPMorgan Chase Bank, N.A., Toronto
Branch, in its capacity as Canadian administrative agent for the Lenders
hereunder.
"Canadian Alternate Base Rate" means, for any day, a rate per annum equal
to the greater of (a) the interest rate per annum publicly announced from time
to time by the Canadian Administrative Agent as its reference rate in effect on
such day at its principal office in Toronto for determining interest rates
applicable to commercial loans denominated in Canadian Dollars in Canada (each
change in such reference rate being effective from and including the date such
change is publicly announced as being effective) and (b) the interest rate per
annum equal to the sum of (i) the CDOR Rate on such day (or, if such rate is not
so reported on the Reuters Screen CDOR Page, the average of the rate quotes for
bankers' acceptances denominated in Canadian Dollars with a term of 30 days
received by the Canadian Administrative Agent at approximately 10:00 a.m.,
Toronto time, on such day (or, if such day is not a Business Day, on the next
preceding Business Day) from one or more banks of recognized standing selected
by it) and (ii) 0.50% per annum.
"Canadian Borrower" means SYSCO International, Co., a Nova Scotia unlimited
liability company.
"Canadian Commitment" means, with respect to each Lender, the commitment of
such Lender to make Canadian Revolving Loans and to accept and purchase or
arrange for the purchase of B/As hereunder, expressed as an amount representing
the maximum aggregate amount of such Lender's Canadian Revolving Credit Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.09, (b) increased from time to time pursuant to Section 2.20, and (c)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender's Canadian
5
Commitment 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
US$100,000,000.
"Canadian Dollar Equivalent" means, on the date of determination, with
respect to any amount in U.S. Dollars, the equivalent in Canadian Dollars of
such amount determined by the U.S. Administrative Agent using the Exchange Rate
then in effect.
"Canadian Dollars" or "Cdn.$" means lawful currency of Canada.
"Canadian Lender" means a Lender with a Canadian Commitment or Canadian
Revolving Credit Exposure.
"Canadian Resident" means at any time, a Person who at that time (a)(i) is
not a non-resident of Canada for purposes of the Canadian Tax Act or (ii) is an
authorized foreign bank deemed to be resident in Canada for purposes of Part
XIII of the Canadian Tax Act and (b) in the case of any Canadian Revolving Loan
to the Company, is making or holding such Canadian Revolving Loan as part of its
Canadian banking business.
"Canadian Revolving Credit Exposure" means, with respect to any Lender at
any time, the sum of (a) the aggregate principal amount of such Lender's
Canadian Revolving Loans denominated in U.S. Dollars outstanding at any time,
(b) the U.S. Dollar Equivalent of the aggregate principal amount of such
Lender's Canadian Revolving Loans denominated in Canadian Dollars outstanding at
such time and (c) the U.S. Dollar Equivalent of the aggregate face amount of the
B/As accepted by such Lender and outstanding at such time.
"Canadian Revolving Loan" means a Loan made by a Canadian Lender pursuant
to Section 2.01(b).
"Canadian Tax Act" means the Income Tax Act (Canada), as amended from time
to time.
"Capital Lease" means any lease in respect of which the lessee's
obligations constitute Capitalized Lease Obligations.
"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.
"Capitalization" means, without duplication, at any date, the sum of the
Indebtedness of the Company and the Subsidiaries outstanding on such date, plus
the total capital represented by the capital stock of the Company outstanding on
such date based, in the case of shares having a par value, upon their par value,
and, in the case of shares having no par value, upon the value stated on the
6
books of the Company, plus the total amount of (or less the amount of any net
deficits in) the contributed or capital surplus and the earned surplus (whether
or not available for payment of dividends) of the Company and the Subsidiaries,
all as would be shown on a Consolidated balance sheet of the Company and the
Subsidiaries as at such date, prepared on a Consolidated basis, after due
allowance for minority interests, in accordance with GAAP and after eliminating
all intercompany items, plus the amount of any premium on capital stock of the
Company not included in its surplus, plus the amount of any extraordinary or
other non-recurring non-cash charges after July 2, 2005, other than any such
charges with respect to the write-down or write-off of any inventory or accounts
receivable or principal properties.
"CDOR Rate" means, on any date, an interest rate per annum equal to the
average discount rate applicable to bankers' acceptances denominated in Canadian
Dollars with a term of 30 days (for purposes of the definition of "Canadian
Alternate Base Rate") or with a term equal to the Contract Period of the
relevant B/As (for purposes of the definition of "Discount Rate") appearing on
the Reuters Screen CDOR Page (or on any successor or substitute page of such
Screen, or any successor to or substitute for such Screen, providing rate
quotations comparable to those currently provided on such page of such Screen,
as determined by the Canadian Administrative Agent from time to time) at
approximately 10:00 a.m., Toronto time, on such date (or, if such date is not a
Business Day, on the next preceding Business Day)
"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 the Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or the 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.
"Class", when used in reference to (a) any Loan, Borrowing or Revolving
Credit Exposure, refers to whether such Loan, or the Loans comprising such
Borrowing, are U.S. Revolving Loans, Canadian Revolving Loans or Swingline
Loans, or, in the case of Revolving Credit Exposure, whether such Revolving
Credit Exposure is U.S. Revolving Credit Exposure or Canadian Revolving Credit
Exposure and (b) any Commitment, refers to whether such Commitment is a U.S.
Revolving Commitment or a Canadian Revolving Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means a Canadian Commitment or a U.S. Commitment.
"Commitment Increase" has the meaning assigned to such term in Section
2.20(b).
"Company" means SYSCO Corporation, a Delaware corporation.
"Consolidated" refers to the consolidation of the accounts of the Company
and the Subsidiaries in accordance with GAAP, including principles of
consolidation consistent with those applied in the preparation of the
7
consolidated financial statements referred to in Section 3.04, except as
otherwise expressly provided in Section 1.04.
"Consolidated Total Assets" means the total assets of the Company and the
Subsidiaries, on a Consolidated basis.
"Contract Period" means, with respect to any B/A, the period commencing on
the date such B/A is issued and accepted and ending on the date 30, 60 or 90
days (or, with the consent of each Canadian Lender, 180 days) thereafter, as the
Canadian Borrower may elect; provided that if such Contract Period would end on
a day other than a Business Day, such Contract Period shall be extended to the
next succeeding Business Day.
"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.
"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.
"Discount Proceeds" means, with respect to any B/A, an amount (rounded
upward, if necessary, to the nearest Cdn.$.01) calculated by multiplying (a) the
face amount of such B/A by (b) the quotient obtained by dividing (i) one by (ii)
the sum of (A) one and (B) the product of (x) the Discount Rate (expressed as a
decimal) applicable to such B/A and (y) a fraction of which the numerator is the
Contract Period applicable to such B/A and the denominator is 365, with such
quotient being rounded upward or downward to the fifth decimal place and .000005
being rounded upward.
"Discount Rate" means, with respect to a B/A being accepted and purchased
on any day, (a) for a Canadian Lender which is a Schedule I Lender, (i) the CDOR
Rate applicable to such B/A or (ii) if the discount rate for a particular
Contract Period is not quoted on the Reuters Screen CDOR Page, the arithmetic
average (as determined by the Canadian Administrative Agent) of the percentage
discount rates (expressed as a decimal and rounded upward, if necessary, to the
nearest 1/100 of 1%) quoted to the Canadian Administrative Agent by the Schedule
I Reference Lender as the percentage discount rate at which each such bank
would, in accordance with its normal practices, at approximately 10:00 a.m.,
Toronto time, on such day, be prepared to purchase bankers' acceptances accepted
by such bank having a face amount and term comparable to the face amount and
Contract Period of such B/A, and (b) for a Canadian Lender which is a
Non-Schedule I Lender, the lesser of (i) the CDOR Rate applicable to such B/A
plus 0.10% per annum and (ii) the arithmetic average (as determined by the
Canadian Administrative Agent) of the percentage discount rates (expressed as a
decimal and rounded upward, if necessary, to the nearest 1/100 of 1%) quoted to
the Canadian Administrative Agent by the Non-Schedule I Reference Lenders as the
percentage discount rate at which each such bank would, in accordance with its
normal practices, at approximately 10:00 a.m., Toronto time, on such day, be
prepared to purchase bankers' acceptances accepted by such bank having a face
amount and term comparable to the face amount and Contract Period of such B/A.
8
"Disposition" has the meaning assigned to such term in Section 6.08.
"dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"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 Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"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 Company, 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 Company 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 Company or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
9
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Company 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 Company or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Company 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.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
"Exchange Rate" means, on any day, (a) for purposes of determining the U.S.
Dollar Equivalent, the rate at which Canadian Dollars may be exchanged into U.S.
Dollars and (b) for purposes of determining the Canadian Dollar Equivalent, the
rate at which U.S. Dollars may be exchanged into Canadian Dollars, in each case
as set forth on the Bloomberg Market Data Currencies Page for Canadian Dollars
(or, if not so quoted, the spot rate of exchange quoted for wholesale
transactions made by the Canadian Administrative Agent in Toronto, Ontario) at
10:00 a.m., Local Time, on such day; provided, that if at the time of any such
determination, for any reason, no such spot rate is being quoted, the Canadian
Administrative Agent may use any reasonable method it deems applicable to
determine such rate, and such determination shall be conclusive absent manifest
error.
"Excluded Taxes" means, with respect to any Agent, any Lender, the 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 net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized 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 described in clause (a) above, (c) any withholding tax that is
imposed (other than solely as a result of the operation of the CAM) (i) by the
United States of America on payments made by the Company or (ii) by Canada (or
any political subdivision thereof) on payments made by the Canadian Borrower, in
any case to the extent such tax (A) is in effect and would apply as of the date
such Lender, Agent or Issuing Bank becomes a party to this Agreement or (B)
relates to payments received by a Lender Affiliate or a new lending office
designated by such Lender and is in effect and would apply at the time such
Lender Affiliate or such lending office is designated, in each case except to
the extent that such Lender, Agent or Lender Affiliate (or assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from such Borrower with respect to such withholding
tax pursuant to Section 2.17(a), (d) any withholding tax that is attributable to
such Lender's, Agent's or Issuing Bank's failure to comply with Section 2.17(e)
and (e) Taxes imposed by any jurisdiction (i) in which a Borrower is not
organized or resident for tax purposes, (ii) through which no payment is made by
or on behalf of a Borrower under this Agreement, and (iii) with respect to which
10
there is no other connection between the making of a payment by or on behalf of
a Borrower under this Agreement and such jurisdiction that would directly result
in the imposition of Taxes by such jurisdiction on that payment.
"Existing Credit Agreement" means the Credit Agreement dated as of
September 13, 2002, among the Company, the lenders party thereto and JPMorgan
Chase Bank, N.A. (f/k/a JPMorgan Chase Bank), as administrative agent.
"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 U.S. Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal accounting
officer, treasurer, assistant treasurer or controller of the Company.
"GAAP" means generally accepted accounting principles in the United States
of America.
"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.
"Guaranteed Obligations" has the meaning assigned to such term in Article
VIII.
11
"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.
"Increase Effective Date" has the meaning assigned to such term in Section
2.20(b).
"Increasing Lender" has the meaning assigned to such term in Section
2.20(a).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable or accrued liabilities, incurred or accrued
in the ordinary course of business), (e) 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, (f)
all Guarantees by such Person of Indebtedness of others and (g) all Capital
Lease Obligations and Attributable Debt of such Person. 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 August 2005 relating to the Company and the Transactions.
"Initial Loans" has the meaning assigned to such term in Section 2.20(b).
"Interest Election Request" means a request by a Borrower to convert or
continue a Borrowing or B/A Drawing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than
a Swingline Loan) or any Canadian Alternate Base Rate Loan, the last day of each
March, June, September and December, (b) with respect to any Eurodollar 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 Eurodollar 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
12
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 Eurodollar 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 participating Lender, nine or twelve months)
thereafter, as the Company 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 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 Eurodollar 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 Eurodollar Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Issuing Bank" means JPMorgan Chase Bank, N.A., in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Company at such time. The LC Exposure of any U.S. Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the U.S. Lenders and the Canadian Lenders. Unless the
context otherwise requires, the term "Lenders" includes the Swingline Lender and
the Issuing Bank.
"Letter of Credit" means each letter of credit issued pursuant to this
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones 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 U.S.
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits 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 U.S. Dollar deposits with
a maturity comparable to such Interest Period. In the event that such rate is
13
not available at such time for any reason, then the "LIBO Rate" with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which
U.S. Dollar deposits of US$5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the U.S.
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" means a loan made by a Lender to a Borrower pursuant to this
Agreement.
"Local Time" means (a) with respect to a Loan or Borrowing denominated in
U.S. Dollars, New York City time and (b) with respect to a Loan or Borrowing
denominated in Canadian Dollars, or a B/A, Toronto time.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise, of the
Company and the Subsidiaries taken as a whole, (b) the ability of either
Borrower to perform any of its obligations under this Agreement or (c) the
rights of the Agents and the Lenders against either of the Borrowers under any
material provision of this Agreement.
"Material Letter of Credit" means a letter of credit issued for the account
of the Company or any Subsidiary in an original face amount of US$1,000,000 or
more.
"Material Indebtedness" means Indebtedness (other than the Loans, Letters
of Credit and B/A), or obligations in respect of one or more Swap Agreements, of
any one or more of the Company and the Subsidiaries in an aggregate principal
amount exceeding US$150,000,000. 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, subject to extension pursuant to Section 2.21,
November 4, 2010.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
14
"Net Worth" means, with respect to any Person, the excess, if any, of the
assets of such Person over the liabilities of such Person, each to be determined
in accordance with GAAP consistent with those applied in the preparation of the
consolidated financial statements referred to in Section 3.04.
"Non-Increasing Lender" has the meaning assigned to such term in Section
2.20.
"Non-Schedule I Lender" means any Canadian Lender not named on Schedule I
to the Bank Act (Canada).
"Non-Schedule I Reference Lenders" means JPMorgan Chase Bank, N.A., Toronto
Branch, Bank of America, N.A., The Bank of Tokyo-Mitsubishi, Ltd., Wachovia
Bank, National Association and Wells Fargo Financial Corporation Canada.
"Obligations" means the obligations of each Borrower hereunder in respect
of the payment of (a) the principal of and interest (including interest accruing
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (b) all payments required to be made
by the Company under this Agreement in respect of any Letter of Credit, when and
as due, including payments in respect of reimbursement of LC Disbursements,
interest thereon and obligations to provide cash collateral, (c) all
reimbursement obligations of the Canadian Borrower in respect of B/As accepted
hereunder and (d) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Borrowers or either of
them under this Agreement.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes or other similar charges or 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 10.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Investment" 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 or instrumentality thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within two years from the date of
acquisition thereof;
15
(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 certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
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;
(d) fully collateralized repurchase agreements and reverse repurchase
agreements with a term of not more than one year for securities described
in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above;
(e) money market funds that (i) comply with the criteria set forth in
SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P or Aaa by Moody's and (iii) have portfolio assets of at least
$5,000,000,000;
(f) marketable direct obligations issued by any state of the United
States or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's;
(g) repurchase obligations with a term of not more than 30 days
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (c)
above;
(h) "money market" preferred stock maturing within six months after
issuance thereof or municipal bonds in each case issued by a corporation
organized under the laws of any state of the United States, which has a
rating of "A" or better by S&P or Moody's or the equivalent rating by any
other nationally recognized rating agency;
(i) tax exempt floating rate option tender bonds backed by letters of
credit issued by a national or state bank whose long-term unsecured debt
has a rating of AA or better by S&P, Aa2 or better by Moody's or the
equivalent rating by any other nationally recognized rating agency; and
(j) shares of any money market mutual fund rated as least AAA or the
equivalent thereof by S&P, at least Aaa or the equivalent thereof by
Moody's or any other mutual fund at least 95% of whose assets consist of
the type specified in clauses (a) through (f) above.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
16
"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.
"Register" has the meaning assigned to such term in Section 10.04.
"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 more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Reset Date" is defined in Section 1.05.
"Revolving Credit Exposure" means U.S. "Revolving Credit Exposure or
Canadian Revolving Credit Exposure.
"Revolving Loan" means a U.S. Revolving Loan or Canadian Revolving Loan.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc.
"Sale and Leaseback Transaction" means any arrangement, directly or
indirectly, with any Person whereby a seller or a transferor shall sell or
otherwise transfer any real or personal property and then or thereafter lease
(whether pursuant to a Capital Lease or otherwise) or repurchase under an
extended purchase contract, the same or similar property from the purchaser or
the transferee of such property.
"Schedule I Lender" means any Lender named on Schedule I to the Bank Act
(Canada).
"Schedule I Reference Lender" means TD Securities (USA) LLC.
"Significant Subsidiary" has the meaning assigned to such term in Article
VII.
"Specified Obligations" means Obligations consisting of the principal and
interest of Loans, reimbursement obligations in respect of any B/As accepted
hereunder, reimbursement obligations in respect of LC Disbursements and fees
payable hereunder to the Lenders
"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 U.S. Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
17
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar 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.
"Subsequent Borrowings" has the meaning assigned to such term in Section
2.20(b).
"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 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.
"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, provided that such
term shall not include any forward or future contract entered into in the
ordinary course of business by the Company or a Subsidiary which contemplates
the actual delivery of a commodity and is not entered into for speculative
purposes.
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any U.S.
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, N.A., 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.
18
"Transactions" means the execution, delivery and performance by the
Borrowers of this Agreement and each promissory note (if any) requested by a
Lender as contemplated by Section 2.10(e), the borrowing of Loans hereunder, the
issuance of Letters of Credit hereunder and purchase and acceptance of B/As
hereunder, and the use of proceeds thereof.
"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, the Alternate Base Rate or
the Canadian Alternate Base Rate.
"U.S. Administrative Agent" means JPMorgan Chase Bank, N.A. in its capacity
as U.S. administrative agent for the Lenders hereunder.
"U.S. Commitment" means, with respect to each Lender, the commitment of
such Lender to make U.S. Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's U.S. Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.09, (b) increased from time to time pursuant to Section
2.20, and (c) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each Lender's
U.S. Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its U.S. Commitment,
as applicable. The initial aggregate amount of the Lenders' U.S. Commitments is
US$400,000,000.
"U.S. Dollars" or "US$" means lawful currency of the United States.
"U.S. Dollar Equivalent" means, on any date of determination, (a) with
respect to any amount in U.S. Dollars, such amount, and (b) with respect to any
amount in Canadian Dollars, the equivalent in U.S. Dollars of such amount
determined by the U.S. Administrative Agent using the Exchange Rate then in
effect.
"U.S. Lender" means a Lender with a U.S. Commitment or U.S. Revolving
Credit Exposure.
"U.S. Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"U.S. Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of (a) the aggregate principal amount of such Lender's U.S.
Revolving Loans outstanding at such time plus (b) such Lender's LC Exposure and
Swingline Exposure at such time.
"U.S. Revolving Loan" means a Loan made by a U.S. Lender pursuant to
Section 2.01(a).
19
"Wholly-Owned Subsidiary" means a Subsidiary, all of the outstanding Equity
Interests in which, other than directors' qualifying shares, are at the time
owned by the Company, by any one or more other Wholly-Owned Subsidiaries, or by
the Company and any one or more Wholly-Owned Subsidiaries, except that the term
"Wholly-Owned Subsidiary" shall also mean and include any Acquisition
Subsidiary.
For purposes of this definition, the term "Acquisition Subsidiary" means
and includes each Subsidiary organized under the laws of a jurisdiction outside
the United States
(a) formed to acquire, and which has acquired and directly owns,
beneficially and of record, all of the outstanding Equity Interests in a
previously unaffiliated entity (the "Target"), and
(b) all of whose own outstanding Equity Interests having the power to
vote, whether ordinary or upon the occurrence of a contingency (other than,
in the case of a Subsidiary formed under the laws of Canada or any Province
thereof, statutory rights of shareholders to vote as a class), are owned,
beneficially and of record, directly or indirectly, by the Company.
For the avoidance of doubt, an Acquisition Subsidiary
(c) may, without jeopardizing its status as such, issue non-voting
Equity Interests, convertible or exchangeable, share-for-share, into or for
shares of Common Stock of the Company ("Acquiree Equity Interests") to the
former owners of the Target, but
(d) may not directly or indirectly declare or pay dividends or other
distributions, whether in cash, securities or other property, in respect of
such Acquiree Equity Interests, or otherwise to the holders thereof, except
for dividends or distributions that are in each case (i) of like kind and
equal in amount, share-for-share, to those concurrently paid by the Company
to the holders of a like number of shares of its Common Stock, and (ii) of
like kind and equal in amount to the amount of a substantially concurrent
capital contribution made by the Company to such Acquisition Subsidiary.
"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 Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "U.S.
Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar U.S. Revolving Loan"). Borrowings also may be classified
and referred to by Class (e.g., a "U.S. Revolving Borrowing") or by Type (e.g.,
a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar U.S.
Revolving Borrowing").
20
SECTION 1.03 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) 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.
SECTION 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Company notifies the U.S. Administrative Agent that the Company requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the U.S. Administrative Agent notifies the
Company that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05 Exchange Rate Calculations. On each Calculation Date, the
Canadian Administrative Agent shall (a) determine the Exchange Rate as of such
Calculation Date and (b) give notice thereof to the U.S. Administrative Agent
and the Borrowers, and with respect to each Lender, to any Lender that shall
have requested such information. The Exchange Rates so determined shall become
effective on the first Business Day immediately following the relevant
Calculation Date (each, a "Reset Date") and shall remain effective until the
next succeeding Reset Date, and shall for all purposes of this Agreement (other
than Section 10.14, or any other provision expressly requiring the use of a
current Exchange Rate) be the Exchange Rate employed in converting amounts
between U.S. Dollars and Canadian Dollars.
ARTICLE II
The Credits
SECTION 2.01 Commitments. (a) Subject to the terms and conditions set forth
herein, each U.S. Lender agrees to make U.S. Revolving Loans to the Company in
U.S. Dollars from time to time during the Availability Period in an aggregate
principal amount that will not result in (i) such U.S. Lender's U.S. Revolving
21
Credit Exposure exceeding such U.S. Lender's U.S. Commitment or (ii) the total
U.S. Revolving Credit Exposures exceeding the total U.S. Commitments.
(b) Subject to the terms and conditions set forth herein, each Canadian
Lender agrees from time to time during the Availability Period to make (i)
Canadian Revolving Loans to the Canadian Borrower in Canadian Dollars, including
by means of B/A or B/A Equivalent Loans, and (ii) Canadian Revolving Loans to
the Company in U.S. Dollars, in each case in an aggregate principal amount that
will not result in (A) such Canadian Lender's Canadian Revolving Credit Exposure
exceeding such Canadian Lender's Canadian Commitment or (B) the total Canadian
Revolving Credit Exposures exceeding the total Canadian Commitments.
(c) Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrowers may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02 Loans and Borrowings. (a) Each Revolving Loan shall be made as
part of a Borrowing consisting of Revolving Loans of the same Class made by the
Lenders ratably in accordance with their respective Commitments of such Class.
B/A Drawings shall be made in accordance with Section 2.07. The failure of any
Lender to make any Loan (or provide its share of any B/A Drawings) 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 (or provide its share
of any B/A Drawings) as required.
(b) Subject to Section 2.14, (i) each Borrowing of Revolving Loans
denominated in U.S. Dollars shall be comprised entirely of ABR Loans or
Eurodollar Loans and (ii) each Borrowing of Canadian Revolving Loans denominated
in Canadian Dollars shall be comprised entirely of B/A Drawings or Canadian
Alternate Base Rate Loans, in each case as the applicable Borrower may request
pursuant to Section 2.03 or as otherwise may be provided in this Agreement. Each
Swingline Loan shall be an ABR Loan. Each Lender at its option may make any
Eurodollar 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 Company to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is at least equal
to the Borrowing Minimum and is an integral multiple of the Borrowing Multiple.
At the time that each ABR U.S. Revolving Borrowing or a Canadian Alternate Base
Rate Borrowing is made, such Borrowing shall be in an aggregate amount that is
at least equal to the Borrowing Minimum and is an integral multiple of the
Borrowing Multiple; provided that (i) an ABR U.S. Revolving Borrowing or
Canadian Alternate Base Rate Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments of the applicable
Class or (ii) in the case of an ABR U.S. Revolving Borrowing under the U.S.
Commitments, in an amount necessary 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 US$1,000,000 and not less than
US$5,000,000. B/A Drawings shall be subject to Section 2.07. Borrowings of more
22
than one Type and Class may be outstanding at the same time; provided that there
shall not at any time be more than a total of 12 Eurodollar Revolving Borrowings
and 10 B/A Drawings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrowers
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period or Contract Period requested with respect
thereto would end after the Maturity Date.
SECTION 2.03 Requests for Revolving Borrowings. To request a Revolving
Borrowing (other than a Swingline Loan or B/A Drawing, which are subject to
Section 2.04 and 2.07, respectively), the applicable Borrower shall notify the
Applicable Agent (and the U.S. Administrative Agent, if it shall not be the
Applicable Agent) of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 12:00 noon, Local Time, three Business Days before the
date of the proposed Borrowing, (b) in the case of an ABR Borrowing, not later
than 12:00 noon, Local Time, on the date of the proposed Borrowing and (c) in
the case of a Canadian Alternate Base Rate Borrowing, not later than 11:00 a.m.,
Local Time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent (with a copy to the U.S.
Administrative Agent if it shall not be the Applicable Agent) of a written
Borrowing Request in a form reasonably acceptable to the Applicable Agent and
signed by the applicable Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing;
(ii) whether such Borrowing is a U.S. Revolving Borrowing or a
Canadian Revolving Borrowing;
(iii) the aggregate amount and currency of the requested Borrowing;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing (in the case of a Borrowing denominated in U.S. Dollars) or a
Canadian Alternate Base Rate Borrowing (in the case of a Borrowing
denominated in Canadian Dollars);
(v) the date of such Borrowing, which shall be a Business Day;
(vi) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vii) the location and number of the account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing if denominated in U.S.
Dollars or a Canadian Alternate Base Rate Borrowing if denominated in Canadian
Dollars. If no Interest Period is specified with respect to any requested
23
Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. Promptly following receipt
of a Borrowing Request in accordance with this Section, the Applicable Agent
shall advise each 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 in U.S.
Dollars to the Company from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
US$50,000,000 or (ii) the total U.S. Revolving Credit Exposures exceeding the
total U.S. Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan; and
provided further, that the Swingline Lender shall not make a Swingline Loan if a
Default has occurred and is continuing. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Company may borrow, prepay and
reborrow Swingline Loans.
(b) To request a Swingline Loan, the Company shall notify the U.S.
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 2:30 p.m., 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
U.S. Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Company. The Swingline Lender shall make each Swingline
Loan available to the Company by means of a credit to the general deposit
account of the Company with the Swingline Lender by 4:00 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 U.S.
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the U.S. 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 U.S. Lenders will
participate. Promptly upon receipt of such notice, the U.S. Administrative Agent
will give notice thereof to each U.S. Lender, specifying in such notice such
U.S. Lender's Applicable Percentage of such Swingline Loan or Loans. Each U.S.
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the U.S. Administrative Agent, for the account of the
Swingline Lender, such U.S. Lender's Applicable Percentage of such Swingline
Loan or Loans. Each U.S. 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 U.S. Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever. Each U.S.
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to U.S. Revolving Loans made by such U.S. Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the U.S. Lenders), and
the U.S. Administrative Agent shall promptly pay to the Swingline Lender the
24
amounts so received by it from the U.S. Lenders. The U.S. Administrative Agent
shall notify the Company 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 U.S. Administrative Agent and not to the Swingline
Lender. Any amounts received by the Swingline Lender from the Company (or other
party on behalf of the Company) 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 U.S. Administrative Agent; any such amounts received
by the U.S. Administrative Agent shall be promptly remitted by the U.S.
Administrative Agent to the U.S. 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 U.S. Administrative Agent, as applicable, if and to
the extent such payment is required to be refunded to the Company for any
reason. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Company of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Company may request the issuance of Letters of
Credit for its own account, in a form reasonably acceptable to the U.S.
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Availability Period and the Issuing Bank hereby agrees to issue such
Letters of Credit. 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 the Company to, or entered
into by the Company with, the Issuing Bank relating to any Letter of Credit, the
terms and conditions of this Agreement shall control. All Letters of Credit
shall be denominated in U.S. Dollars.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Company shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank and the U.S.
Administrative Agent (three days in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the 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 Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
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 Letter
of Credit. If requested by the Issuing Bank, the Company also shall submit a
letter of credit application on the Issuing Bank's standard form in connection
with any request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Company shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the LC Exposure shall not exceed US$75,000,000 and (ii) the total
U.S. Revolving Credit Exposures shall not exceed the total U.S. Commitments.
Notwithstanding the foregoing, the Issuing Bank shall not issue, amend, renew or
extend any Letter of Credit if a Default has occurred and is continuing.
25
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the date that is five Business Days prior to the Maturity
Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the U.S. Lenders, the Issuing Bank
hereby grants to each U.S. Lender, and each U.S. Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such U.S.
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each U.S. Lender hereby absolutely and unconditionally agrees to pay
to the U.S. Administrative Agent, for the account of the Issuing Bank, such U.S.
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Company on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Company for any reason. Each U.S. Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the U.S. Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Company shall reimburse such LC Disbursement
by paying to the U.S. Administrative Agent an amount equal to such LC
Disbursement not later than 1:00 p.m., New York City time, on the date that such
LC Disbursement is made, if the Company 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 the Company prior to such time on such date,
then not later than 1:00 p.m., New York City time, on (i) the Business Day that
the Company receives notice, if such notice is received prior to 10:00 a.m., New
York City time, on the day of receipt, or (ii) the Business Day immediately
following the day that the Company 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 US$10,000, the Company may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 or 2.04 that such payment be financed with an ABR U.S. Revolving Borrowing
or Swingline Loan in an equivalent amount and, to the extent so financed, the
Company's obligation to make such payment shall be discharged and replaced by
the resulting ABR U.S. Revolving Borrowing or Swingline Loan. If the Company
fails to make such payment when due, the U.S. Administrative Agent shall notify
each U.S. Lender of the applicable LC Disbursement, the payment then due from
the Company in respect thereof and such U.S. Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each U.S. Lender shall pay
to the U.S. Administrative Agent its Applicable Percentage of the payment then
due from the Company, in the same manner as provided in Section 2.06 with
respect to U.S. Revolving Loans made by such U.S. Lender (and Section 2.06 shall
apply, mutatis mutandis, to the payment obligations of the U.S. Lenders), and
the U.S. Administrative Agent shall promptly pay to the Issuing Bank the amounts
so received by it from the U.S. Lenders. Promptly following receipt by the U.S.
Administrative Agent of any payment from the Company pursuant to this paragraph,
26
the U.S. Administrative Agent shall distribute such payment to the Issuing Bank
or, to the extent that U.S. Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such U.S. Lenders and the
Issuing Bank as their interests may appear. Any payment made by a U.S. Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement
(other than the funding of ABR U.S. Revolving Loans or a Swingline Loan as
contemplated above) shall not constitute a U.S. Revolving Loan and shall not
relieve the Company of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company'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 Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a 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 Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such 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 Company's obligations hereunder. Neither
any Agent, any Lender nor the 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 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 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 Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Company to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Company to the extent permitted by applicable law) suffered by the Company that
are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a 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 Issuing Bank (as
finally determined by a court of competent jurisdiction), the 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 Letter of Credit, the 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
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
27
U.S. Administrative Agent and the Company by telephone (confirmed by telecopy)
of such demand for payment and whether the 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 the Company of its obligation to reimburse the
Issuing Bank and the U.S. Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Company 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 Company reimburses such LC Disbursement, at
the rate per annum then applicable to ABR U.S. Revolving Loans; provided that,
if the Company fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.13(d) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any U.S. Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such U.S. Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Company, the U.S. Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The U.S.
Administrative Agent shall notify the U.S. Lenders of any such replacement of
the Issuing Bank. At the time any such replacement shall become effective, the
Company shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.12(c). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Company receives notice from the U.S.
Administrative Agent or the Required Lenders (or, if the maturity of the U.S.
Revolving Loans has been accelerated, U.S. Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Company shall deposit in an account
with the U.S. Administrative Agent, in the name of the U.S. Administrative Agent
and for the benefit of the U.S. Lenders, an amount in cash equal to the 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 the amount of 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 the Company described in clause (h) or (i) of
Section 7.01. Such deposit shall be held by the U.S. Administrative Agent as
collateral for the payment and performance of the obligations of the Company
under this Agreement. The U.S. Administrative Agent shall have exclusive
28
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 U.S.
Administrative Agent and at the Company'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 U.S.
Administrative Agent to reimburse the 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 Company for
the LC Exposure at such time or, if the maturity of the U.S. Revolving Loans has
been accelerated (but subject to the consent of U.S. Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Company under this Agreement. If the Company 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 Company within three Business Days after all
Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings and B/A Drawings. (a) Each Lender shall
make each Loan to be made by it and disburse the Discount Proceeds (net of
applicable acceptance fees) of each B/A to be accepted and purchased by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds in the applicable currency by 2:00 p.m., Local Time, to the account of the
Applicable 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 Applicable Agent will make such Loans or disburse the
Discount Proceeds (net of applicable acceptance fees) available to the
applicable Borrower by promptly crediting the amounts so received, in like
funds, to the general deposit account of the applicable Borrower maintained with
the Applicable Agent (i) in New York City, in the case of Loans denominated in
U.S. Dollars and (ii) in Toronto, in the case of Loans denominated in Canadian
Dollars or B/As, and designated by such Borrower in the applicable Borrowing
Request, provided that ABR U.S. Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the U.S. Administrative Agent to the Issuing Bank.
(b) Unless the Applicable Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing or acceptance and purchase of B/As
that such Lender will not make available to the Applicable Agent such Lender's
share of such Borrowing or the applicable Discount Proceeds (net of applicable
acceptance fees), the Applicable 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
Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing or the applicable Discount Proceeds (net
of applicable acceptance fees) available to the Applicable Agent, then such
Lender and such Borrower severally agree to pay to the Applicable 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 applicable
Borrower to but excluding the date of payment to the Applicable Agent, at (i) in
the case of such Lender, the greater of (x)(A) the Federal Funds Effective Rate,
in the case of Loans denominated in U.S. Dollars and (B) the rate determined by
the Canadian Administrative Agent to be the cost to it of funding such amount,
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in the case of Loans denominated in Canadian Dollars, and (y) a rate determined
by the Applicable Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of a Borrower, the interest rate applicable to
such Borrowing or the applicable Discount Rate, as the case may be. If such
Lender pays such amount to the Applicable Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing or such Lender's
purchase of B/As.
SECTION 2.07. Bankers' Acceptances. (a) Each acceptance and purchase of
B/As of a single Contract Period pursuant to Section 2.01(b) or Section 2.08
shall be made ratably by the Canadian Lenders in accordance with the amounts of
their Canadian Commitments. The failure of any Canadian Lender to accept any B/A
required to be accepted by it shall not relieve any other Canadian Lender of its
obligations hereunder; provided that the Canadian Commitments are several and no
Canadian Lender shall be responsible for any other Canadian Lender's failure to
accept B/As as required.
(b) The B/As of a single Contract Period accepted and purchased on any date
shall be in an aggregate amount that is at least equal to the Borrowing Minimum
and is an integral multiple of the Borrowing Multiple. If any Canadian Lender's
ratable share of the B/As of any Contract Period to be accepted on any date
would not be an integral multiple of Cdn.$100,000, the face amount of the B/As
accepted by such Lender may be increased or reduced to the nearest integral
multiple of Cdn.$100,000 by the Canadian Administrative Agent in its sole
discretion. B/As of more than one Contract Period, but not more than 10 Contract
Periods, may be outstanding at the same time.
(c) To request an acceptance and purchase of B/As, the Canadian Borrower
shall notify the Canadian Administrative Agent of such request by telephone or
by telecopy not later than 10:00 a.m., Local Time, one Business Day before the
date of such acceptance and purchase. Each such request shall be irrevocable
and, if telephonic, shall be confirmed promptly by hand delivery or telecopy to
the Canadian Administrative Agent of a written request in a form approved by the
Canadian Administrative Agent and signed by the Canadian Borrower. Each such
telephonic and written request shall specify the following information:
(i) the aggregate face amount of the B/As to be accepted and
purchased;
(ii) the date of such acceptance and purchase, which shall be a
Business Day;
(iii) the Contract Period to be applicable thereto, which shall be a
period contemplated by the definition of the term "Contract Period" (and
which shall in no event end after the Maturity Date); and
(iv) the location and number of the Canadian Borrower's account to
which the applicable Discount Proceeds (net of applicable acceptance fees)
are to be disbursed, which shall comply with the requirements of Section
2.06. If no Contract Period is specified with respect to any requested
acceptance and purchase of B/As, then the Canadian Borrower shall be deemed
to have selected a Contract Period of 30 days' duration.
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Promptly following receipt of a request in accordance with this paragraph, the
Canadian Administrative Agent shall advise each Canadian Lender of the details
thereof and of the amount of B/As to be accepted and purchased by such Lender.
(d) The Canadian Borrower hereby appoints each Canadian Lender as its
attorney to sign and endorse on its behalf, manually or by facsimile or
mechanical signature, as and when deemed necessary by such Lender, blank forms
of B/As, each such Lender hereby agreeing that it will not sign or endorse B/As
in excess of those required in connection with B/A Drawings that have been
requested by the Canadian Borrower hereunder. It shall be the responsibility of
each Canadian Lender 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 any Canadian Lender shall
bind the Canadian Borrower as fully and effectually as if manually signed and
duly issued by authorized officers of the Canadian Borrower. Each Canadian
Lender is hereby authorized to issue such B/As endorsed in blank in such face
amounts as may be determined by such Lender; provided that the aggregate face
amount thereof is equal to the aggregate face amount of B/As required to be
accepted by such Lender. No Canadian Lender shall be liable for any damage, loss
or claim arising by reason of any loss or improper use of any such instrument
unless such loss or improper use results from the bad faith, gross negligence or
willful misconduct of such Lender. 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) canceled at their respective maturities. Each
Canadian Lender further agrees to retain such records in the manner and for the
periods provided in applicable provincial or federal statutes and regulations of
Canada and to provide such records to the Canadian Borrower upon its request and
at its expense. Upon request by the Canadian Borrower, a Canadian Lender shall
cancel all forms of B/A that have been pre-signed or pre-endorsed on behalf of
the Canadian Borrower and that are held by such Canadian Lender and are not
required to be issued pursuant to this Agreement.
(e) Drafts of the Canadian Borrower to be accepted as B/As hereunder shall
be signed as set forth in paragraph (d) above. 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 Canadian Borrower at the date of issuance of such
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 and properly completed shall be binding on the Canadian
Borrower.
(f) Upon acceptance of a B/A by a Canadian Lender, such Lender shall
purchase such B/A from the Canadian Borrower at the Discount Rate for such
Lender applicable to such B/A accepted by it and provide to the Canadian
Administrative Agent the Discount Proceeds for the account of such Canadian
Borrower as provided in Section 2.06. The acceptance fee payable by the Canadian
Borrower to a Canadian Lender under Section 2.12 in respect of each B/A accepted
by such Lender shall be set off against the Discount Proceeds payable by such
31
Lender under this paragraph. Notwithstanding the foregoing, in the case of any
B/A Drawing resulting from the conversion or continuation of a B/A Drawing or
Canadian Revolving Loan pursuant to Section 2.08, the net amount that would
otherwise be payable to the Canadian Borrower by each Canadian Lender pursuant
to this paragraph will be applied as provided in Section 2.08(f).
(g) Each Canadian Lender may at any time and from time to time hold, sell,
rediscount or otherwise dispose of any or all B/A's accepted and purchased by
it.
(h) Each B/A accepted and purchased hereunder shall mature at the end of
the Contract Period applicable thereto.
(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 Lender in its
own right and the Canadian Borrower agrees not to claim any days of grace if
such Lender as holder sues the Canadian Borrower on the B/A for payment of the
amounts payable by the Canadian Borrower thereunder. On the last day of the
Contract Period of a B/A, or such earlier date as may be required 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 Lender shall be entitled to all
benefits of, and be responsible for all payments due to third parties under,
such B/A.
(j) At the option of the Canadian Borrower and any Canadian Lender, B/As
under this Agreement to be accepted by that 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) or bills of exchange
pursuant to the Bills of Exchange Act (Canada). All depository bills so issued
and bills of exchange shall be governed by the provisions of this Section 2.07.
(k) If a Canadian Lender is not a bank under the Bank Act (Canada) or if a
Canadian Lender notifies the Canadian Administrative Agent in writing that it is
otherwise unable to accept B/As, such Lender will, instead of accepting and
purchasing B/As, make a Loan (a "B/A Equivalent Loan") to the Canadian Borrower
in the amount and for the same term as each draft which such Lender would
otherwise have been required to accept and purchase hereunder. Each such Lender
will provide to the Canadian Administrative Agent the Discount Proceeds of such
B/A Equivalent Loan for the account of the Canadian Borrower in the same manner
as such Lender would have provided the Discount Proceeds in respect of the draft
which such Lender would otherwise have been required to accept and purchase
hereunder. Each such B/A Equivalent Loan will bear interest at the same rate
that would result if such Lender had accepted (and been paid an acceptance fee)
and purchased (at the applicable Discount Rate) a B/A for the relevant Contract
Period (it being the intention of the parties that each such B/A Equivalent Loan
shall have the same economic consequences for the Canadian Lenders and the
Canadian Borrower as the B/A that such B/A Equivalent Loan replaces). All such
32
interest shall be paid in advance on the date such B/A Equivalent Loan is made,
and will be deducted from the principal amount of such B/A Equivalent Loan in
the same amount and manner in which the deduction based on the Discount Rate and
the applicable acceptance fee of a B/A would be deducted from the face amount of
the B/A. Subject to the repayment requirements of this Agreement, on the last
day of the relevant Contract Period for such B/A Equivalent Loan, the Canadian
Borrower shall be entitled to convert each such B/A Equivalent Loan into another
type of Loan, or to roll over each such B/A Equivalent Loan into another B/A
Equivalent Loan, all in accordance with the applicable provisions of this
Agreement.
(l) Notwithstanding any provision hereof but subject to Section 2.11(b),
the Canadian Borrower may not prepay any B/A Drawing other than on the last day
of its Contract Period.
(m) For greater certainty, all provisions of this Agreement which are
applicable to B/As shall also be applicable, mutatis mutandis, to B/A Equivalent
Loans.
SECTION 2.08. Interest Elections and Contract Periods. (a) Each Revolving
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Revolving Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Each B/A Drawing
shall have a Contract Period as specified in the applicable request therefor.
Thereafter, the applicable Borrower may elect to convert such Borrowing or B/A
Drawing to a different Type or to continue such Borrowing or B/A Drawing and, in
the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section, it being understood that no B/A
Drawing may be converted or continued other than at the end of the Contract
Period applicable thereto. The applicable Borrower may elect different options
with respect to different portions of the affected Borrowing or B/A Drawing, in
which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing or accepting the B/As comprising
such B/A Drawing, as the case may be, and any Loans or B/As resulting from an
election made with respect to any such portion shall be considered a separate
Borrowing or B/A Drawing. Notwithstanding any other provision of this Section,
no Borrowing or B/A Drawing may be converted into or continued as a Borrowing or
B/A Drawing with an Interest Period or Contract Period ending after the Maturity
Date. 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 Borrower
shall notify the Applicable Agent of such election by telephone (i) in the case
of an election that would result in a Borrowing, by the time and date that a
Borrowing Request would be required under Section 2.03 if such Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election, and (ii) in the case of an election
that would result in a B/A Drawing or the continuation of a B/A Drawing, by the
time and date that a request would be required under Section 2.07 if such
Borrower were requesting an acceptance and purchase of B/As 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 Applicable Agent of a written Interest Election Request in a
form reasonably acceptable to the Applicable Agent and signed by the applicable
33
Borrower. Notwithstanding any other provision of this Section, (i) neither
Borrower shall be permitted to change the Borrower or currency of any Borrowing,
and (ii) each conversion or continuation of a Borrowing shall comply with the
applicable provisions of Section 2.02.
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(i) the Borrowing or B/A Drawing 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 Borrowing or B/A Drawing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing or B/A Drawing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing, a
Eurodollar Borrowing, a Canadian Alternate Base Rate Borrowing or a B/A
Drawing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, 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", and in the case of an election of a B/A Drawing,
the Contract Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Contract Period".
If any such Interest Election Request requests a Eurodollar Borrowing or a
B/A Drawing but does not specify an Interest Period or Contract Period, then the
applicable Borrower shall be deemed to have selected an Interest Period or
Contract Period of one month's or 30 days' duration, as applicable.
(d) Promptly following receipt of an Interest Election Request, the
Applicable Agent shall advise each participating Lender of the details thereof
and of such Lender's portion of each resulting Borrowing or B/A Drawing.
(e) If the relevant Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing or B/A Drawing prior to
the end of the Interest Period or Contract Period applicable thereto, then,
unless such Borrowing or B/A Drawing is repaid as provided herein, at the end of
such Interest Period or Contract Period, such Borrowing or B/A Drawing shall (i)
in the case of a Borrowing denominated in U.S. Dollars, be converted to an ABR
Borrowing and (ii) in the case of a Borrowing or B/A Drawing denominated in
Canadian Dollars, be converted to a Canadian Alternate Base Rate Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has
occurred and is continuing and the U.S. Administrative Agent, at the request of
the Required Lenders, so notifies the Company, then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing denominated in U.S.
Dollars may be converted to or continued as a Eurodollar Borrowing, (ii) unless
34
repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the
end of the Interest Period applicable thereto, (iii) no outstanding Borrowing
denominated in Canadian Dollars may be converted to or continued as a B/A
Drawing and (iv) unless repaid, each B/A Drawing shall be converted to a
Canadian Alternate Base Rate Borrowing at the end of the applicable Contract
Period thereto.
(f) Upon the conversion of any Canadian Borrowing (or portion thereof), or
the continuation of any B/A Drawing (or portion thereof), to or as a B/A
Drawing, the net amount that would otherwise be payable to the Canadian Borrower
by each Canadian Lender pursuant to Section 2.07(f) in respect of such new B/A
Drawing shall be applied against the principal of the Canadian Revolving Loan
made by such Canadian Lender as part of such Canadian Revolving Borrowing (in
the case of a conversion), or the reimbursement obligation owed to such Canadian
Lender under Section 2.07(i) in respect of the B/As accepted by such Lender as
part of such maturing B/A Drawing (in the case of a continuation), and such
Borrower shall pay to such Lender an amount equal to the difference between the
principal amount of such Canadian Revolving Loan or the aggregate face amount of
such maturing B/As, as the case may be, and such net amount.
SECTION 2.09. 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 of either Class; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of US$5,000,000 and not less
than US$20,000,000, or the entire amount of the Commitments of such Class, (ii)
the Company shall not terminate or reduce the U.S. Commitments if, after giving
effect to any concurrent prepayment of the U.S. Revolving Loans in accordance
with Section 2.11, the total U.S. Revolving Credit Exposures would exceed the
total U.S. Commitments, and (iii) the Company shall not terminate or reduce the
Canadian Commitments if, after giving effect to any concurrent prepayment of the
Canadian Revolving Loans in accordance with Section 2.11, the total Canadian
Revolving Credit Exposures would exceed the total Canadian Commitments.
(c) The Company shall notify the U.S. Administrative Agent of any election
to terminate or reduce the Commitments of either Class 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 U.S. Administrative Agent
shall advise the Canadian Administrative Agent and the applicable Lenders of the
contents thereof. Each notice delivered by the Company pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments
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 U.S. Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments of either Class shall be permanent,
subject, however, to the Company's right to increase the Commitments pursuant to
Section 2.20. Each reduction of the Commitments shall be made ratably among the
applicable Lenders in accordance with their respective Commitments of such
Class.
35
SECTION 2.10. Repayment of Loans and B/As; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay on the Maturity Date, to the
Applicable Agent for the account of each Lender the then unpaid principal amount
of each Revolving Loan made by such Lender to such Borrower. The Canadian
Borrower hereby unconditionally promises to pay on the Maturity Date, to the
Canadian Administrative Agent for the account of each Lender, the face amount of
each B/A, if any, accepted by such Lender as provided in Section 2.07. The U.S.
Borrower hereby unconditionally promises to pay to the Swingline Lender the then
unpaid principal amount of each Swingline Loan on the earlier of the Maturity
Date and the 15th day after such Swingline Loan is made; provided that on each
date that a U.S. Revolving Borrowing is made, the Company 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 or B/A accepted by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The U.S. Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period, if any, applicable thereto, and the amount of each B/A
and the Contract Period applicable thereto, (ii) the amount of any principal,
interest or other amount in respect of any B/A due and payable or to become due
and payable from each Borrower to each Lender hereunder and (iii) the amount of
any sum received by the Agents hereunder for the account of the Lenders and each
Lender's share thereof. The Canadian Administrative Agent shall promptly provide
the U.S. Administrative Agent with all information needed to maintain such
accounts in respect of the Loans or B/A Drawings administered by such Agent.
(d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) 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 or Agent to maintain such accounts or any error therein shall not in any
manner affect the obligation of either Borrower to repay the Loans in accordance
with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be evidenced
by a promissory note. In such event, the applicable Borrower shall prepare,
execute and deliver to such Lender a promissory note 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 U.S. Administrative Agent. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.04) 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 2.11. Prepayment of Loans. (a) Each Borrower shall have the right
at any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (d) of this Section.
36
(b) If on any Reset Date, the total Canadian Revolving Credit Exposures
exceed 105% of the total Canadian Commitments, then one or both of the Borrowers
shall, within three Business Days after receiving notice thereof from the
Canadian Administrative Agent, prepay one or more of their respective Canadian
Borrowings in an aggregate amount sufficient to reduce the total Canadian
Revolving Credit Exposures to an amount that does not exceed the total Canadian
Commitments; provided, however, that neither Borrower shall be obligated to
prepay any B/A in order to comply with the terms of this Section 2.11(b);
provided, further, that should a prepayment of all outstanding Canadian
Borrowings be insufficient to reduce the Canadian Revolving Credit Exposures
below 105% of the total Canadian Commitments, the Canadian Borrower shall
provide cash collateral to the Canadian Administrative Agent in an amount
sufficient to secure the outstanding B/As to the extent necessary to comply with
this paragraph (b) (and such collateral will be held by the Canadian
Administrative Agent and applied to pay B/As as and when due).
(c) The applicable Borrower shall notify the Applicable Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, 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 an ABR U.S. Revolving Borrowing or a Canadian Alternate
Base Rate Borrowing, not later than 11:00 a.m., Local 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.
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 the Commitments as contemplated by Section
2.10, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.10. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Applicable
Agent shall advise the relevant 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 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 2.13.
SECTION 2.12. Fees. (a) The Company agrees to pay to the U.S.
Administrative Agent, in U.S. Dollars, for the account of each applicable Lender
a facility fee, which shall accrue at the Applicable Rate on the daily amount of
the U.S. Commitment of such Lender (whether used or unused) and the Canadian
Borrower agrees to pay to the Canadian Administrative Agent, in U.S. Dollars,
for the account of each applicable Lender a facility fee, which shall accrue at
the Applicable Rate on the daily amount of the Canadian Commitment of such
Lender (whether used or unused), in each case such fee shall accrue during the
period from and including the date hereof to but excluding the date on which
such Commitment terminates; provided that, if any such Lender continues to have
any Class of Revolving Credit Exposure after its Commitment of such Class
terminates, then such facility fee shall continue to accrue on the daily amount
of such Lender's Revolving Credit Exposure of such Class from and including the
date on which its Commitment of such Class terminates to but excluding the date
37
on which such Lender ceases to have any Revolving Credit Exposure of such Class.
Accrued facility fees shall be payable in arrears on the last day of March,
June, September and December of each year and, with respect to Commitments of
either Class, on the date on which the Commitments of such Class terminate,
commencing on the first such date to occur after the date hereof; provided that
any facility fees accruing, with respect to a Class of Revolving Credit
Exposure, after the date on which the Commitments of such Class terminate shall
be payable on demand. All facility 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 Canadian Borrower agrees to pay to the Canadian Administrative
Agent, for the account of each Canadian Lender, on each date on which B/As drawn
by the Canadian Borrower are accepted hereunder, in Canadian Dollars, an
acceptance fee equal to (i) the product of the Applicable Rate and the face
amount of each B/A accepted by such Lender multiplied by (ii) a fraction, the
numerator of which is the number of days in the Contract Period applicable to
such B/A and the denominator of which is 365.
(c) The Company agrees to pay (i) to the U.S. Administrative Agent for the
account of each U.S. Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Rate used to determine the interest rate applicable to Eurodollar Revolving
Loans on the average daily amount of such U.S. Lender's LC Exposure (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 U.S. Lender's U.S. Commitment terminates and the date on
which such U.S. Lender ceases to have any LC Exposure, and (ii) to the Issuing
Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on the
average daily amount of the LC Exposure (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 U.S. Commitments and the date on which there ceases to be any
LC Exposure, 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 U.S. Commitments terminate and any
such fees accruing after the date on which the U.S. Commitments terminate shall
be payable on demand. Any other fees payable to the 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).
(d) A utilization fee shall accrue at the rate of 0.05% per annum on the
daily amount of the Revolving Credit Exposure of each Lender at all times when
the total Revolving Credit Exposures exceeds 50% of the total Commitments. To
the extent such utilization fee accrues on the Revolving Credit Exposures
represented by Canadian Alternate Base Rate Loans or B/As, such portion of the
utilization fee shall be paid by the Canadian Borrower in Canadian Dollars, and
38
the balance of such utilization fee shall be paid by the Company in U.S.
Dollars. Accrued utilization 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 utilization fees accruing after the date on which the
Commitments terminate shall be payable on demand. All utilization 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).
(e) The Company agrees to pay to the U.S. Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Company and the U.S. Administrative Agent.
(f) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the U.S. Administrative Agent (or (i) to the
Canadian Administrative Agent, in the case of fees payable under paragraph (d)
above that are payable in Canadian Dollars or fees payable under paragraph (e)
above, or (ii) to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees, participation fees and utilization
fees, to the relevant Lenders. Fees paid shall not be refundable under any
circumstances.
SECTION 2.13. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate.
The Loans comprising each Canadian Alternate Base Rate Borrowing shall bear
interest at the Canadian Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at
the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by either 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, (ii) in the case of any other amount payable in Canadian
Dollars, 2% plus the rate applicable to Canadian Alternate Base Rate Loans as
provided in paragraph (a) of this Section or (iii) in the case of any other
amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of
this Section.
(d) 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 of
either Class, upon termination of the Commitments of such Class; provided that
(i) interest accrued pursuant to paragraph (c) 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 U.S. Revolving Loan or Canadian Alternate Base Rate
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
Eurodollar Revolving Loan prior to the end of the current Interest Period
39
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360
days, except that (i) interest computed by reference to the Canadian Alternate
Base Rate or to the Alternate Base Rate at times when the Alternate Base Rate is
based on the U.S. Prime Rate 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). The applicable Alternate Base Rate, Canadian Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Applicable Agent, and such
determination shall be conclusive absent manifest error.
(f) Whenever interest is calculated on the basis of a year of 360 or 365
days, for the purposes of the Interest Act (Canada), the yearly rate of interest
which is equivalent to the rate payable hereunder is the rate payable multiplied
by the actual number of days in the year and divided by 360 or 365, as the case
may be. All interest will be calculated using the nominal rate method and not
the effective rate method and the deemed reinvestment principle shall not apply
to such calculations.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:
(a) the U.S. 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 for such Interest Period; or
(b) the U.S. Administrative Agent is advised by a majority in interest of
the Lenders of the Class participating in such Borrowing that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost to
such Lenders of making or maintaining their Loans included in such Borrowing for
such Interest Period;
then the U.S. Administrative Agent shall give notice thereof to the Company, the
Lenders and the Canadian Administrative Agent, if applicable, by telephone or
telecopy as promptly as practicable thereafter and, until the U.S.
Administrative Agent notifies the Company, the Lenders and the Canadian
Administrative Agent, if applicable, that the circumstances giving rise to such
notice no longer exist, (i) any Interest Election Request that requests the
conversion of any Revolving Borrowing to, or continuation of any Revolving
Borrowing as, a Eurodollar Borrowing shall be ineffective, and such Borrowing
shall be converted to or continued on the last day of the Interest Period
applicable thereto as an ABR Borrowing and (ii) if any Borrowing Request
requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an
ABR Borrowing; provided that if the circumstances giving rise to such notice
affect only one Type or Class of Borrowings, then the other Type or Class of
Borrowings shall be permitted.
SECTION 2.15. Increased Costs. (a) If any Change in Law shall:
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(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 the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar 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 Eurodollar Loan or of obtaining funds for
the purchase of B/As (or of maintaining its obligation to make any such Loan or
to accept and purchase B/As) or to increase the cost to such Lender or the
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 the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Company will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the 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 the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Company will pay to such Lender or to the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Lender's or the Issuing Bank's holding company,
as the case may be, for any such reduction actually suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the 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 Company shall pay or cause the Canadian Borrower to pay such
Lender or the Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 30 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrowers shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or the 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 the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
41
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Eurodollar Loan or to issue B/As for acceptance and purchase on the
date specified in any notice delivered pursuant hereto (regardless of whether
such notice may be revoked under Section 2.09(c) and is revoked in accordance
therewith) or (d) the assignment of any Eurodollar Loan or the right to receive
payment in respect of a B/A other than on the last day of the Interest Period or
Contract Period, as the case may be, applicable thereto as a result of a request
by the Company pursuant to Section 2.19 or the CAM Exchange, then, in any such
event, the applicable Borrower shall compensate each affected Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar
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 such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar 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 applicable Borrower
shall pay such Lender the amount shown as due on any such certificate within 30
days after receipt thereof.
SECTION 2.17. Taxes. (a) Any and all payments by or on account of any
obligation of either Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
either 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 Applicable Agent, each affected
Lender or the 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, the applicable Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
42
(c) The relevant Borrower shall indemnify each Agent, each Lender and the
Issuing Bank, within 30 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by such Agent or 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 either 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 the Issuing Bank, or by an
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 the relevant Borrower to a Governmental Authority, such Borrower shall
deliver to the U.S. 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 U.S. Administrative Agent.
(e) Any Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which a Borrower to whom a
Lender has made a Loan is organized or resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Company (with a copy to the U.S. Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Company as will permit such payments to be made without
withholding or at a reduced rate.
(f) If an Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been
indemnified by either Borrower or with respect to which either Borrower has paid
additional amounts pursuant to this Section 2.17, it shall pay over such refund
to the Company (but only to the extent of indemnity payments made, or additional
amounts paid, by either Borrower under this Section 2.17 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of such Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided, that the Company, upon the request of such Agent or such
Lender, agrees to repay the amount paid over to the Company (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
such Agent or such Lender in the event the such Agent or such Lender is required
to repay such refund to such Governmental Authority. This Section shall not be
construed to require any Agent or any Lender to make available its tax returns
(or any other information relating to its taxes which it deems confidential) to
either Borrower or any other Person.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements or of
amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00
p.m., Local Time, on the date when due, in immediately available funds, without
43
set-off or counterclaim. Any amounts received after such time on any date may,
in the discretion of the Applicable 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 Applicable Agent at such account as the
Applicable Agent shall from time to time specify in a notice delivered to the
applicable Borrower, except payments to be made directly to the Issuing Bank or
the Swingline Lender as expressly provided herein and except that payments
pursuant to Sections 2.15, 2.16, 2.17 and 10.03 shall be made directly to the
Persons entitled thereto. The Applicable 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.
All payments hereunder of principal or interest in respect of any Canadian Loan
denominated in Canadian Dollars or amounts owing in respect of any B/A Drawing
(or of any breakage indemnity or utilization fees in respect of any such Loan or
B/A Drawing) shall be made in Canadian Dollars; all other payments hereunder
shall be made in U.S. Dollars, except as otherwise expressly provided.
(b) If at any time insufficient funds are received by and available to any
Agent from either Borrower to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder by such Borrower, such
funds shall be applied (i) first, towards payment of interest and fees then due
from such Borrower hereunder, 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 from such Borrower hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) 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, amount owing in respect of any B/A Drawings or
participations in LC Disbursements and Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans, amounts owing in respect of any B/A Drawings or 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, amounts owing in respect of any B/A Drawing or 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, amounts owing in respect of any B/A Drawings
and 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 either 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
44
participations in LC Disbursements to any assignee or participant, other than to
the Company or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). Each 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 such Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of such
Borrower in the amount of such participation.
(d) Unless the Applicable Agent shall have received notice from the
relevant Borrower prior to the date on which any payment is due to such Agent
for the account of the Lenders or applicable Class thereof or the Issuing Bank
hereunder that such Borrower will not make such payment, the Applicable Agent
may assume that such Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the applicable
Lenders or the Issuing Bank, as the case may be, the amount due. In such event,
if such Borrower has not in fact made such payment, then each of the applicable
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Applicable Agent forthwith on demand the amount so distributed to such
Lender or the 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 Applicable Agent, at (i) the greater of the Federal Funds
Effective Rate and a rate determined by the Applicable Agent in accordance with
banking industry rules on interbank compensation (in the case of an amount
denominated in U.S. Dollars) or (ii) the rate reasonably determined by the
Applicable Agent to be the cost to it of funding such amount (in the case of an
amount denominated in Canadian Dollars).
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b) or 2.18(d), then the
Applicable Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Applicable Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.15, or if either Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, 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
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 2.15 or 2.17, 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 Company
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If (i) any Lender requests compensation under Section 2.15, (ii) either
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
(iii) any Lender defaults in its obligation to fund Loans hereunder or (iv) any
Lender is a Non-Consenting Lender under Section 2.21, then the Company may, at
45
its sole expense and effort, upon notice to such Lender and the U.S.
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), 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 Company
shall have received the prior written consent of the U.S. Administrative Agent,
which consent shall not unreasonably be withheld or delayed, (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 applicable Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.15 or payments required to be made pursuant to
Section 2.17, 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 Company to require such assignment
and delegation cease to apply.
SECTION 2.20. Increase in Commitments. (a) The Company may, on behalf of
itself or the Canadian Borrower, by written notice to the U.S. Administrative
Agent (which shall promptly deliver a copy to each of the Lenders and the
Canadian Administrative Agent), request that the total Commitments of either
Class be increased by an amount not less than US$10,000,000 for any such
increase; provided that after giving effect to any such increase the sum of the
total Commitments shall not exceed US$1,000,000,000 minus any amount by which
the Commitments shall have been reduced pursuant to Section 2.09. Such notice
shall set forth (i) whether such increase in Commitments shall apply to the U.S.
Commitments or Canadian Commitments, (ii) the amount of the requested increase
in such Commitments, (iii) the date on which such increase is requested to
become effective (which shall be not less than 10 Business Days or more than 60
days after the date of such notice), and shall offer each U.S. Lender (in the
case of a requested increase in U.S. Commitments) or Canadian Lender (in the
case of a requested increase in Canadian Commitments) the opportunity to
increase its Commitment of the applicable Class, by its Applicable Percentage of
the proposed increased amount. Each such Lender shall, by notice to the Company
and the U.S. Administrative Agent given not more than 10 days after the date of
the Company's notice, either agree to increase its applicable Commitment, by all
or a portion of the offered amount (each Lender so agreeing being an "Increasing
Lender") or decline to increase its applicable Commitment (and any such Lender
that does not deliver such a notice within such period of 10 days shall be
deemed to have declined to increase its applicable Commitment) (each such Lender
so declining or deemed to have declined being a "Non-Increasing Lender"). In the
event that, on the 10th day after the Company shall have delivered a notice
pursuant to the first sentence of this paragraph, the applicable Lenders shall
have agreed pursuant to the preceding sentence to increase their applicable
Commitments by an aggregate amount less than the increase in the total
Commitments of the applicable Class requested by the Company, the Company may
arrange for one or more banks or other financial institutions (any such bank or
other financial institution being called an "Augmenting Lender"), which may
include any Lender, to extend Commitments of the applicable Class or increase
their existing Commitments of the applicable Class in an aggregate amount equal
46
to the unsubscribed amount; provided that each Augmenting Lender, if not already
a Lender hereunder, shall be subject to the approval of the U.S. Administrative
Agent (which approval shall not be unreasonably withheld) and the Company and
each Augmenting Lender shall execute all such documentation as the U.S.
Administrative Agent shall reasonably specify to evidence its Commitment and/or
its status as a Lender hereunder. Any increase in the total Commitments may be
made in an amount which is less than the increase requested by the Company if
the Company is unable to arrange for, or chooses not to arrange for, Augmenting
Lenders.
(b) On the effective date (the "Increase Effective Date") of any increase
in the total Commitments of either Class pursuant to this Section 2.20 (the
"Commitment Increase"), (i) the aggregate principal amount of the Loans of the
same Class outstanding (the "Initial Loans") immediately prior to giving effect
to the Commitment Increase on the Increase Effective Date shall be deemed to be
paid, (ii) each Increasing Lender and each Augmenting Lender that shall have
been a Lender prior to the Commitment Increase shall pay to the Applicable Agent
in same day funds an amount equal to the difference between (A) the product of
(1) such Lender's Applicable Percentage (calculated after giving effect to the
Commitment Increase) multiplied by (2) the amount of the Subsequent Borrowings
(as hereinafter defined) and (B) the product of (1) such Lender's Applicable
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans, (iii) each Augmenting Lender
that shall not have been a Lender prior to the Commitment Increase shall pay to
the Applicable Agent in same day funds an amount equal to the product of (1)
such Augmenting Lender's Applicable Percentage (calculated after giving effect
to the Commitment Increase) multiplied by (2) the amount of the Subsequent
Borrowings, and (iv) after the Applicable Agent receives the funds specified in
clauses (ii) and (iii) above, the Applicable Agent shall pay to each
Non-Increasing Lender the portion of such funds that is equal to the difference
between (A) the product of (1) such Non-Increasing Lender's Applicable
Percentage (calculated without giving effect to the Commitment Increase)
multiplied by (2) the amount of the Initial Loans and (B) the product of (1)
such Non-Increasing Lender's Applicable Percentage (calculated after giving
effect to such Commitment Increase) multiplied by (2) the amount of the
Subsequent Borrowings, (v) after the effectiveness of the Commitment Increase,
the applicable Borrower or Borrowers shall be deemed to have made new Borrowings
(the "Subsequent Borrowings") in an aggregate principal amount equal to the
aggregate principal amount of its or their Initial Loans and of the types and
for the Interest Periods specified in a Borrowing Request delivered to the
Applicable Agent in accordance with Section 2.03, (vi) each Non-Increasing
Lender, each Increasing Lender and each Augmenting Lender shall be deemed to
hold its Applicable Percentage of each Subsequent Borrowing (each calculated
after giving effect to the Commitment Increase) and (vii) the applicable
Borrower or Borrowers shall pay each Increasing Lender and each Non-Increasing
Lender any and all accrued but unpaid interest on its or their Initial Loans.
The deemed payments made pursuant to clause (i) above in respect of each
Eurodollar Loan shall be subject to the provisions of Section 2.16 if the
Increase Effective Date occurs other than on the last day of the Interest Period
relating thereto and breakage costs result.
47
(c) Increases and new Commitments of either Class created pursuant to this
Section 2.20 shall become effective on the date specified in the notice
delivered by the Company pursuant to the first sentence of paragraph (a) above.
(d) Notwithstanding the foregoing, no increase in the total Commitments of
a Class (or in the Commitment of any Lender) or addition of a new Lender shall
become effective under this Section unless, (i) on the date of such increase,
(A) the representations and warranties set forth in this Agreement shall be true
and correct on and as of such date (unless expressly made as of another date, in
which case such representations and warranties shall be true and correct on and
as of such other date), (B) on such date and immediately after giving effect to
such increase, no Default or Event of Default shall have occurred and be
continuing and the U.S. Administrative Agent shall have received a certificate
to that effect dated such date and executed by a Financial Officer of the
Company, and (C) the Commitment of each Lender of the applicable Class (without
giving effect to any merger of Lenders after the date of this Agreement) is
equal to or less than 20% of the total Commitments of such Class, and (ii) the
U.S. Administrative Agent shall have received (with sufficient copies for each
of the Lenders) documents consistent with those delivered on the Effective Date
under clauses (b) and (c) of Section 4.01 as to the corporate power and
authority of the applicable Borrower or Borrowers to borrow hereunder after
giving effect to such increase (or, if such documents delivered on the Effective
Date already contemplate an increase in an amount at least equal to the amount
of such increase, stating that such documents remain in full force and effect on
the date of such increase and have not in anywise been annulled, modified,
rescinded or revoked).
SECTION 2.21. Extension of Maturity Date. (a) The Company may by written
notice (an "Extension Notice") delivered to the U.S. Administrative Agent not
less than 60 days and not more than 90 days prior to an anniversary of the
Effective Date request an extension of the Maturity Date to a date no later than
12 months after the Existing Maturity Date (as defined below) as specified in
such Extension Notice (an "Extension"), provided that (i) no Default shall have
occurred and be continuing on the date of the Extension Notice or the Existing
Maturity Date and (ii) the representations and warranties set forth in Article
III shall be true and correct in all material respects as if made on the date of
such Extension Notice and the Existing Maturity Date, and (iii) the U.S.
Administrative Agent shall have received a certificate, dated the Existing
Maturity Date and signed by the Chief Executive Officer, President, a Vice
President or a Financial Officer of the Company, confirming compliance with the
conditions precedent set forth in clauses (i) and (ii) of this paragraph (a).
(b) The effectiveness of any Extension shall require the prior written
consent of the Required Lenders, each Lender participating in such Extension and
each Agent. The U.S. Administrative Agent shall promptly furnish a copy of the
Extension Notice to each Lender, and shall request that each Lender either agree
to such extension or not agree thereto within 30 days of delivery to such Lender
of the Extension Notice. The decision to agree or withhold agreement to any
Extension hereunder shall be at the sole discretion of each Lender. The
Commitment of any Lender that has declined to agree to any requested Extension
(a "Non-Consenting Lender") shall terminate on the Maturity Date in effect prior
to giving effect to any such Extension (the "Existing Maturity Date"), and the
principal amount of any outstanding Loans made by such Lender, together with any
accrued interest thereon, and any accrued fees and other amounts payable to or
48
for the account of such Lender hereunder, shall be due and payable on the
Existing Maturity Date and such Lender shall be released from its participation
in such Letter of Credit effective on the Existing Maturity Date.
Notwithstanding the foregoing provisions of this paragraph, (i) the Company
shall have the right, pursuant to Section 2.19(b), to replace a Non-Consenting
Lender with a Lender or other financial institution that will agree to an
Extension and (ii) the Company shall have the right, any time prior to the
Existing Maturity Date, to withdraw its request for an extension of the Maturity
Date by written notice to the U.S. Administrative Agent, in which case the
Commitments of all the Lenders will terminate on the Existing Maturity Date.
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. The Company and each Subsidiary is duly
organized or formed, validly existing and in good standing under the laws of the
jurisdiction of its organization or formation, has all requisite power and
authority to carry on its business as now conducted, and is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required and where the failure so to qualify (either
individually or together with all other failures so to qualify) could have a
Material Adverse Effect.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
each Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by each Borrower and constitutes a legal, valid and
binding obligation of such Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
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 the Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture or
other material agreement or instrument binding upon the Company or any
Subsidiary or its assets, or give rise to a right thereunder to require any
payment to be made by the Company or any Subsidiary, and (d) will not result in
the creation or imposition of any Lien on any asset of the Company or any
Subsidiary.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Company has heretofore furnished to the Lenders its consolidated balance sheet
and the related statements of consolidated results of operations, shareholders'
equity and cash flows as of and for the fiscal year ended July 2, 2005, reported
on by Ernst & Young LLP, independent public accountants. Such financial
statements present fairly, in all material respects, the financial position and
49
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.
(b) Since July 2, 2005, there has been no material adverse change in the
business, assets, operations, prospects or condition, financial or otherwise, of
the Company and the Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company and each Subsidiary has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for 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 each Subsidiary 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 each such
Subsidiary does not infringe upon the rights of any other Person.
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 either Borrower, threatened
against or affecting the Company or any Subsidiary (i) as to which there is a
reasonable likelihood 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 or (ii) that involve this Agreement or the
Transactions.
(b) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Company nor any Subsidiary (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.
SECTION 3.07. Subsidiaries. Set forth on Schedule 3.07, as most recently
supplemented from time to time as hereinbelow provided in this Section 3.07, is
a complete and accurate list (as of the date hereof or as of the date as of
which information is presented in such supplement, as the case may be) of all
Subsidiaries showing (as to each such Subsidiary) the correct name thereof and
the jurisdiction of its organization or formation. All the outstanding Equity
Interests of each Subsidiary have been validly issued, are fully paid and
nonassessable and, to the extent owned directly or indirectly by the Company,
are so owned free and clear of all Liens not permitted by Section 6.01. The
Canadian Borrower is a Wholly-Owned Subsidiary of the Company. It is agreed that
each Annual Report on Form 10-K filed by the Company after the date of this
Agreement shall be deemed to be a supplement to Schedule 3.07 updating the
information therein contained to the date as of which information is presented
in such Annual Report on Form 10-K.
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SECTION 3.08. Compliance with Laws and Agreements. Each of the Company and
each Subsidiary 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 3.09. Investment and Holding Company Status. Neither the Company
nor any Subsidiary 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 3.10. Taxes. Each of the Company and each Subsidiary 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 such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. 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. The present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts, exceed
the fair market value of the assets of all such underfunded Plans by an amount
that, if required to be paid by the Borrower, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.12. Disclosure. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished
by or on behalf of the Company to any Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
and accept and purchase B/As and the obligation 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 10.02):
51
(a) The U.S. Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the U.S. Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed and delivered a counterpart of this
Agreement.
(b) The U.S. Administrative Agent shall have received favorable written
opinions (addressed to the Agents and the Lenders and dated the Effective Date)
of (i) Arnall Golden Gregory, LLP, special U.S. counsel for the Company, (ii)
Stewart McKelvey Stirling Scales, special Canadian counsel to the Canadian
Borrower and (iii) Michael C. Nichols, Vice President and General Counsel of the
Company, collectively covering such matters as the U.S. Administrative Agent may
reasonably request and allocated between said counsel in such manner as may be
satisfactory to the U.S. Administrative Agent. Each Borrower hereby requests
each such counsel to deliver its or his respective opinion.
(c) The U.S. Administrative Agent shall have received such documents and
certificates as the U.S. Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing, status or
compliance (as applicable) of each Borrower, the authorization of the
Transactions and any other legal matters relating to the Borrowers, this
Agreement or the Transactions, all in form and substance satisfactory to the
U.S. Administrative Agent and its counsel.
(d) The U.S. Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the Chief Executive Officer, President, a Vice
President or a Financial Officer of the Company, confirming (i) that the
representations of the Company set forth in this Agreement are true and correct
as of the Effective Date and (ii) no Default or Event of Default has occurred
and is continuing.
(e) The U.S. 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 Commitments under the Existing Credit Agreement shall have been
terminated and no loans or other liabilities shall be outstanding thereunder
(other than those, if any, to be contemporaneously repaid on the Effective
Date).
The U.S. 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
accept and purchase B/As 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 10.02) at or prior to 3:00 p.m., New
York City time, on November 4, 2005 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
52
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
Loan or accept and purchase B/As on the occasion of any Borrowing or B/A
Drawing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Company set forth in this
Agreement shall be true and correct on and as of the date of such Borrowing or
B/A Drawing or the date of such issuance, amendment, renewal or extension of
such Letter of Credit, as applicable (other than the representation set forth in
Section 3.04(b)).
(b) At the time of and immediately after giving effect to such Borrowing or
B/A Drawing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing, each B/A Drawing and each issuance, amendment, renewal or
extension of a Letter of Credit shall be deemed to constitute a representation
and warranty by the Company on the date thereof as to the matters specified in
paragraphs (a) and (b) 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 each B/A and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or been
terminated and all LC Disbursements shall have been reimbursed, the Company
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements; Ratings Change and Other Information.
The Company will furnish to the U.S. Administrative Agent and each Lender:
(a) within 30 days after the date in each fiscal year on which the Company
is required to file its Annual Report on Form 10-K with the Securities and
Exchange Commission, (i) such Annual Report on Form 10-K of the Company, and
(ii) its audited consolidated balance sheet and the related consolidated
statements of results of operations, shareholders' 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 Ernst & Young 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 the Company and the Subsidiaries on a
Consolidated basis; provided, however, that (x) the Company shall be deemed to
have furnished said Annual Report on Form 10-K for purposes of clause (i) if it
shall have timely made the same available on "EDGAR" and/or on its home page on
the worldwide web (at the date of this Agreement located at www.sysco.com) and
complied with Section 5.01(e) in respect thereof, and (y) if said Annual Report
on Form 10-K contains such consolidated balance sheet and such consolidated
statements of results of operations, shareholders' equity and cash flows, and
the report thereon of such independent public accountants (without qualification
53
or exception, and to the effect, as specified above), the Company shall not be
required to comply with clause (ii);
(b) within 30 days after each date in each fiscal year on which the Company
is required to file a Quarterly Report on Form 10-Q with the Securities and
Exchange Commission, (i) such Quarterly Report on Form 10-Q of the Company, and
(ii) its consolidated balance sheet and related consolidated statements of
results 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 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 the Subsidiaries on a Consolidated basis, subject to normal year-end
audit adjustments and the absence of footnotes; provided, however, that (x) the
Company shall be deemed to have furnished said Quarterly Report on Form 10-Q for
purposes of clause (i) if it shall have timely made the same available on
"EDGAR" and/or on its home page on the worldwide web (at the date of this
Agreement located at www.sysco.com) and complied with Section 5.01(e) in respect
thereof, and (y) if said Quarterly Report on Form 10-Q contains such
consolidated balance sheet and consolidated statements of results of operations
and cash flows, and such certifications, the Company shall not be required to
comply with clause (ii);
(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 Section 6.03 and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 that affects in any material respect the
calculations required for determining compliance with Section 6.03 (as compared
to determining compliance without giving effect to such change) and, if any such
change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause (a)
above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting and auditing rules or
guidelines);
(e) promptly after the same become publicly available, (whether on "EDGAR"
or the Borrower's homepage on the worldwide web or otherwise), notice to the
U.S. Administrative Agent of the filing of all periodic and other reports, proxy
statements and other materials required to be 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, except that the Company shall not be
required to provide notice of any such filing that is not material (and in
furtherance of the foregoing, the Company will give to the U.S. Administrative
54
Agent prompt written notice of any change at any time or from time to time of
the location of the Company's home page on the worldwide web);
(f) promptly after S&P or Moody's 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;
(g) promptly following the request therefor, all documentation and other
information that a Lender reasonably requests in order to comply with its
ongoing obligations under applicable "know your customer" and anti-money
laundering rules and regulations, including the USA Patriot Act; and
(h) 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, as
the U.S. Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Company will furnish to the
U.S. Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(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 Subsidiary as to which there is a reasonable likelihood of an adverse
determination and that, if adversely determined, could reasonably be expected to
result in a Material Adverse Effect; and
(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
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
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 Subsidiary 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 material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.08; and
provided, further, that the Company shall not be required to preserve the
corporate existence of any Subsidiary (other than the Canadian Borrower) or any
right or franchise if the board of directors of the Company (or, in the case of
a Subsidiary having assets of US$100,000 or less (giving effect to any
Disposition permitted by Section 6.08), an officer of the Company acting with
authority duly delegated by the Company's board of directors) shall determine
that the preservation thereof is no longer desirable in the conduct of the
55
business of the Company or such Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Lenders.
SECTION 5.04. Payment of Obligations. The Company will, and will cause each
Subsidiary to, pay its obligations, including Tax liabilities, that, if not
paid, could result in a Material Adverse Effect before the same shall become
delinquent or in default, 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 Subsidiary 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 or funds, or through appropriate self-insurance, as
applicable, 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 Subsidiary 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
Subsidiary to, permit any representatives designated by the U.S. Administrative
Agent or any Lender (upon five days prior notice unless a Default or Event of
Default exists), to visit and inspect its properties, to examine and make
extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and 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
Subsidiary 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. The proceeds of the Loans and the B/As and
the Letters of Credit will be used only for general corporate purposes of the
Company and the Subsidiaries, including commercial paper back-up, and
Acquisitions. No part of the proceeds of any Loan or any Letter of Credit 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.
56
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and each B/A and all fees payable hereunder have been paid
in full and all Letters of Credit have expired or been terminated and all LC
Disbursements shall have been reimbursed, the Company covenants and agrees with
the Lenders that:
SECTION 6.01. 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) the Liens existing on the date hereof and listed on Schedule 6.01;
(b) Liens for taxes, assessments or governmental charges or levies to the
extent not past due or the validity of which is being contested in good faith by
proper proceedings and for which adequate reserves have been established;
(c) Liens imposed by law, such as materialmen's, mechanics', carriers',
workmen's, repairmen's, landlord's and other similar Liens arising in the
ordinary course of business securing obligations which are not overdue or the
validity of which is being contested in good faith by proper proceedings and for
which adequate reserves have been established;
(d) pledges or deposits to secure obligations under worker's compensation
laws or similar legislation or to secure public or statutory obligations of the
Company or any Subsidiary;
(e) Liens upon, and defects of title to, real or personal property,
including any attachment of such real or personal property or other legal
process prior to adjudication of a dispute upon the merits and adverse judgment
on appeal provided (i) the validity thereof is being contested in good faith by
proper proceedings, and adequate reserves have been established with respect
thereto and (ii) levy and execution thereon has been stayed;
(f) Liens on real or personal property existing thereon at the time of
acquisition thereof (including acquisition by merger or consolidation) and not
incurred in contemplation thereof; provided, however, the Indebtedness secured
by each such Lien shall not exceed the fair market value of the property to
which such Lien relates and no such Lien shall extend to or cover any property
other than the property being acquired;
(g) purchase money Liens on property hereafter acquired or constructed
which are created prior to, at the time of, or within 180 days after such
acquisition (or, in the case of property being constructed, the completion of
such construction and commencement of full operation of such property, whichever
is later) to secure Indebtedness incurred solely for the purpose of financing
the acquisition or construction of all or any part of the property being
acquired or constructed; provided, however, that in each case the Indebtedness
secured by such Lien shall not exceed the lesser of the purchase or construction
price of such property or the fair market value of such property and no such
57
Lien shall extend to or cover any property other than the property being
acquired or constructed;
(h) Liens on property of the Company or a Subsidiary in favor of the United
States of America or any political subdivision thereof or in favor of any other
country or political subdivision thereof to secure certain payments pursuant to
any contract or statute or to secure any Indebtedness incurred or guaranteed for
the purpose of financing all or any part of the purchase price (or, in the case
of real property, the cost of construction) of the assets subject to such Liens,
including, but not limited to, Liens incurred in connection with pollution
control, industrial revenue or similar bond financing;
(i) Liens existing on the property of a business entity at the time such
entity becomes a Subsidiary, or at the time substantially all of the assets of
such entity are acquired or leased by the Company or a Subsidiary and not
incurred in contemplation thereof; provided, however, that in each case the
Indebtedness secured by such Lien shall not exceed the lesser of the purchase or
construction price of such property or the fair market value of such property
and no such Lien shall extend to or cover any property other than the property
subject thereto immediately prior to such entity becoming a Subsidiary or the
assets of the owner of such property being so acquired or leased;
(j) Liens on the property of a Subsidiary to secure Indebtedness owing to
the Company or to one or more Wholly-Owned Subsidiaries;
(k) pledges, deposits, performance bonds or similar Liens arising in the
ordinary course of business in connection with bids, tenders, contracts and
leases to which the Company or any Subsidiary is a party;
(l) Liens consisting of zoning restrictions, rights-of-way, servitudes,
easements, servicing agreements, development agreements, site plan agreements or
other restrictions on the use of real property, none of which materially impairs
the operation by the Company and the Subsidiaries taken as a whole of their
respective businesses and none of which is violated by existing or proposed
structures or land use;
(m) Liens securing appeal bonds and other similar Liens, arising in
connection with court proceedings (including, without limitation, surety bonds,
security for costs of litigation where required by law and letters of credit) or
any other instruments serving a similar purpose;
(n) Attachments, judgments and other similar Liens arising in connection
with court proceedings; provided, however, that the Liens are in existence for
less than 10 days after their creation or the execution or other enforcement of
the Liens is effectively stayed or the claims so secured are being actively
contested in good faith and by proper legal proceedings; provided further, that
the sum of the aggregate amount of obligations secured by Liens created in
clause (m) above and this clause (n) shall not exceed US$50,000,000;
(o) Liens given to a public utility or any municipality or governmental or
other public authority when required by such utility or other authority in
connection with the operation of the business or the ownership of the assets of
the Company or any Subsidiary; provided that such Liens do not reduce the value
58
of the assets or interfere in any material respect with the ordinary conduct of
the business of the Company or any Subsidiary;
(p) the right reserved to or vested in any Governmental Authority by any
statutory provision or by the terms of any lease, license, franchise, grant or
permit, to terminate any such lease, license, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance thereof;
(q) extensions, renewals or replacements in whole or in part of the Liens
described in clauses (a), (d), (f), (g), (h), (i), (k), (m), (n), (o) and (p) of
this Section 6.01 for the same or a lesser amount of Indebtedness; provided that
no such Lien shall extend to or cover any property other than the property
theretofore subject to the Lien being extended, renewed or replaced; and
(r) Liens not permitted by any of the foregoing clauses (a) - (q),
inclusive, that secure obligations which do not in the aggregate at any time
exceed 20% of Net Worth.
SECTION 6.02. Sale and Lease-back Transactions; Swap Agreements. The
Company will not effect, or permit any Subsidiary to effect, a Sale and
Lease-back Transaction, or enter into a Swap Agreement, unless immediately prior
thereto, and after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing.
SECTION 6.03. Ratio of Indebtedness to Capitalization. The Company will not
at any time permit the ratio of (a) the sum of (i) Consolidated Indebtedness,
plus (ii) the undrawn face amount of all Material Letters of Credit, to (b) the
sum of (i) Capitalization, plus (ii) the undrawn face amount of all Material
Letters of Credit to exceed 0.7 to 1.0.
SECTION 6.04. Fiscal Year. The Company will not make any change in its
fiscal year.
SECTION 6.05. Transactions with Affiliates. The Company will not, and will
not permit any Subsidiary 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 could be
obtained on an arm's-length basis from unrelated third parties and (b)
transactions between or among the Company and its Wholly Owned Subsidiaries not
involving any other Affiliate.
SECTION 6.06. Tax Returns. The Company will not file, or consent to the
filing of, any consolidated federal income tax return with any Person other than
a Subsidiary.
SECTION 6.07. Consolidation, Merger or Acquisition. The Company will not,
and will not permit any Subsidiary to (a) enter into a consolidation with any
other Person or merge with or into any other Person or amalgamate with any other
Person or (b) acquire all or substantially all of the assets of or of the
aggregate Equity Interest in any other Person (any such transaction being herein
called an "Acquisition"), except that:
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(i) the Company may permit a Subsidiary to merge into or amalgamate
with the Company or may effect an Acquisition of a Subsidiary, and a
Subsidiary may consolidate or merge with or into another Subsidiary; and
(ii) the Company or any Subsidiary may merge with or amalgamate with,
or effect an Acquisition of, any Person other than the Company or a
Subsidiary if
(A) in the case of any merger, amalgamation or Acquisition
involving the Company, the Company is the continuing corporation and,
in the case of any merger or Acquisition involving a Subsidiary, the
continuing corporation (immediately after giving effect to such merger
or Acquisition) is a Subsidiary and in the case such Subsidiary is the
Canadian Borrower, the continuing corporation is the Canadian
Borrower; and
(B) immediately after the consummation of the merger or
Acquisition, and after giving effect thereto, no Default or Event of
Default would exist.
SECTION 6.08. Sales and Other Dispositions. (a) The Company will not sell,
transfer or otherwise dispose of, or permit any Subsidiary to sell, transfer or
otherwise dispose of, any assets other than in the ordinary course of business
or (b) issue, sell, transfer or otherwise dispose of, or permit any Subsidiary
to issue, sell, transfer or otherwise dispose of, any shares of the capital
stock of any Subsidiary (the items covered by (a) and (b) being hereinafter
called a "Disposition" and the term "Disposed of" being used herein with
correlative meaning), unless such Disposition is made for consideration having a
value at least equal to the fair value of such property as determined in good
faith by the board of directors of the Company and, in the case of a Disposition
under (b) herein, as part of the sale of all shares or capital stock of such
Subsidiary and, in the case of any such Disposition, so long as immediately
after the consummation of such Disposition, and after giving effect thereto, no
Default or Event of Default would exist. In addition, if immediately after the
consummation of any Disposition described below, and after giving effect
thereto, no Default or Event of Default would exist, the Company may make:
(i) a Disposition which is ordered by a court of competent
jurisdiction or pursuant to the requirements of a decree, order or ruling
of any governmental body (local, provincial, state or federal), provided
that such Disposition does not, in the opinion of the Required Lenders,
impair the ability of the Company to perform its obligations under this
Agreement and the Notes;
(ii) a Disposition by any Subsidiary to the Company or to any other
Wholly-Owned Subsidiary or by the Company to any Wholly-Owned Subsidiary;
(iii) any Disposition (in a single transaction or a series of related
transactions) during any fiscal quarter of assets having a fair value
which, when combined with the fair value of all other assets Disposed of
during such fiscal quarter and the immediately preceding three (3) fiscal
quarters, constituted not more than 10% of Consolidated Total Assets at the
end of the fiscal quarter then most recently ended; and
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(iv) any Disposition permitted by Section 6.07;
provided, further, that in no event shall the Company sell, lease, transfer
or otherwise dispose of all or substantially all of its assets to any
Person.
ARTICLE VII
Events of Default
SECTION 7.01. Events of Default. If any of the following events ("Events of
Default") shall occur:
(a) either Borrower shall fail to pay any principal of any Loan or any B/A
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) either 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 under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five 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
amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made;
(d) the Company shall fail to observe or perform any covenant, condition or
agreement contained in Section 5.02, 5.03 (with respect to either Borrower's
existence) or 5.08 or in Article VI;
(e) either Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of Section 7.01), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the U.S.
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 (giving effect
to any period of grace provided with respect thereto);
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(g) any other event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or requiring 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;
(h) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in
respect of either Borrower or any Subsidiary which is a "significant subsidiary"
within the meaning of Rule 1-02(w) of Regulation S-X under the Securities
Exchange Act of 1934, as amended (a "Significant 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 either Borrower or any Significant
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) either Borrower or any Significant 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 either Borrower or any Significant
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) either Borrower or any Significant 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 US$50,000,000 shall be rendered against the Company, 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 Company or any Subsidiary to enforce any such judgment;
(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) the Canadian Borrower shall cease to be a Wholly-Owned Subsidiary at
any time prior to termination of the Canadian Commitments and payment in full of
all outstanding Canadian Revolving Loans and B/As;
62
then, and in every such event (other than an event with respect to either
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the U.S. Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrowers, 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, and
declare an amount equal to the full face amount of all outstanding B/As, to be
due and payable in whole (or in part, in which case any principal or other
amount not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans and an amount equal
to the full face amount of all such outstanding B/As 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 each Borrower; and in case of any event with
respect to either 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.
SECTION 7.02. CAM Exchange. (a) On the CAM Exchange Date, (i) the
Commitments shall automatically and without further act be terminated as
provided in Section 7.01, (ii) each U.S. Lender shall immediately be deemed to
have acquired participations in the Swingline Loans in an amount equal to such
U.S. Lender's Applicable Percentage of each Swingline Loan outstanding on such
date and shall promptly make payment therefor to the U.S. Administrative Agent
in accordance with Section 2.04(c), (iii) simultaneously with the automatic
conversions pursuant to clause (iv) below, the Lenders shall automatically and
without further act (and without regard to the provisions of Section 10.04) be
deemed to have exchanged interests in the Loans (other than the Swingline Loans)
and B/As and participations in Swingline Loans and Letters of Credit, such that
in lieu of the interest of each Lender in each Loan, B/A and Letter of Credit in
which it shall participate as of such date (including such Lender's interest in
the Specified Obligations of each Borrower in respect of each such Loan, B/A and
Letter of Credit), such Lender shall hold an interest in every one of the Loans
(other than the Swingline Loans) and B/As and, a participation in every one of
the Swingline Loans and Letters of Credit (including the Specified Obligations
of each Borrower in respect of each such Loan and each Reserve Account
established pursuant to Section 7.03 below), whether or not such Lender shall
previously have participated therein, equal to such Lender's CAM Percentage
thereof, (iv) simultaneously with the deemed exchange of interests pursuant to
clause (iii) above, all outstanding Canadian Revolving Loans denominated in
Canadian Dollars shall, automatically and with no further action required, be
converted into U.S. Dollars, determined using the Exchange Rate calculated as of
the Business Day immediately preceding the CAM Exchange Date, and on and after
such date all such Loans shall constitute ABR Loans payable in U.S. Dollars and
(v) immediately upon the date of expiration of the Contract Period in respect
thereof, the Specified Obligations in respect of each B/A received in the deemed
exchange of interests pursuant to clause (iii) above shall, automatically and
with no further action required, be converted into U.S. Dollars, determined
63
using the Exchange Rate calculated as of such date, and on and after such date
all such Specified Obligations shall be payable in U.S. Dollars and bear
interest at the rate applicable to ABR Loans hereunder. It is understood and
agreed that Lenders holding interests in B/As on the CAM Exchange Date shall
discharge the obligations to fund such B/As at maturity in exchange for the
interests acquired by such Lenders in funded Loans in the CAM Exchange. Each
Lender and each Borrower hereby consents and agrees to the CAM Exchange, and
each Lender agrees that the CAM Exchange shall be binding upon its successors
and assigns and any Person that acquires a participation in its interests in any
Loan or B/A or any participation in any Swingline Loan or Letter of Credit. Each
Borrower agrees from time to time to execute and deliver to the U.S.
Administrative Agent all such promissory notes and other instruments and
documents as the U.S. Administrative Agent shall reasonably request to evidence
and confirm the respective interests of the Lenders after giving effect to the
CAM Exchange, and each Lender agrees to surrender any promissory notes
originally received by it in connection with its Loans hereunder to the U.S.
Administrative Agent against delivery of any promissory notes evidencing its
interests in the Loans and B/As so executed and delivered; provided, that the
failure of either Borrower to execute or deliver or of any Lender to accept any
such promissory note, instrument or document shall not affect the validity or
effectiveness of the CAM Exchange.
(b) As a result of the CAM Exchange, upon and after the CAM Exchange Date,
each payment received by either Agent pursuant to this Agreement in respect of
the Specified Obligations shall be distributed to the Lenders pro rata in
accordance with their respective CAM Percentages. Any direct payment received by
a Lender on or after the CAM Exchange Date, including by way of set-off, in
respect of a Specified Obligation shall be paid over to the Applicable Agent for
distribution to the Lenders in accordance herewith.
SECTION 7.03. Letters of Credit. (a) In the event that on the CAM Exchange
Date any Letter of Credit shall be outstanding and undrawn in whole or in part,
or any L/C Disbursement shall not have been reimbursed by the Company or with
the proceeds of a U.S. Revolving Loan or Swingline Borrowing, each U.S. Lender
shall promptly pay over to the U.S. Administrative Agent, in immediately
available funds, an amount in U.S. Dollars equal to such U.S. Lender's
Applicable Percentage of such undrawn face amount or (to the extent it has not
already done so) such unreimbursed drawing, as applicable, together with
interest thereon from the CAM Exchange Date to the date on which such amount
shall be paid to the U.S. Administrative Agent at the rate that would be
applicable at the time to an ABR U.S. Revolving Loan in a principal amount equal
to such undrawn face amount or unreimbursed drawing, as applicable. The U.S.
Administrative Agent shall establish a separate account (each, a "Reserve
Account") for each Lender for the amounts received with respect to each such
Letter of Credit pursuant to the preceding sentence. The U.S. Administrative
Agent shall deposit in each such Lender's Reserve Account such Lender's CAM
Percentage of the amounts received from the U.S. Lenders as provided above. The
U.S. Administrative Agent shall have sole dominion and control over each Reserve
Account, and the amounts deposited in each Reserve Account shall be held in such
Reserve Account until withdrawn as provided below in this Section. The U.S.
Administrative Agent shall maintain records enabling it to determine the amounts
paid over to it and deposited in the Reserve Accounts in respect of each Letter
of Credit and the amounts on deposit in respect of each Letter of Credit
attributable to each Lender's CAM Percentage. The amounts held in each such
64
Lender's Reserve Account shall be held as a reserve against the LC Exposures,
shall be the property of such Lender, shall not constitute Loans to or give rise
to any claim of or against either Borrower and shall not give rise to any
obligation on the part of either Borrower to pay interest to such Lender, it
being agreed that the reimbursement obligations in respect of Letters of Credit
shall arise only at such times as drawings are made thereunder, as provided in
Section 2.04.
(b) In the event that after the CAM Exchange Date any drawing shall be made
in respect of a Letter of Credit, the U.S. Administrative Agent shall, at the
request of the Issuing Bank, withdraw from the Reserve Account of each Lender
any amounts, up to the amount of such Lender's CAM Percentage of such drawing or
payment, deposited in respect of such Letter of Credit and remaining on deposit
and deliver such amounts to the Issuing Bank in satisfaction of the
reimbursement obligations of the U.S. Lenders under Section 2.05(d) (but not of
the Company under Section 2.05(e)). In the event that any U.S. Lender shall
default on its obligation to pay over any amount to the U.S. Administrative
Agent in respect of any Letter of Credit as provided in this Section 7.03, the
Issuing Bank shall have a claim against such U.S. Lender to the same extent as
if such Lender had defaulted on its obligations under Section 2.05(d), but shall
have no claim against any other Lender in respect of such defaulted amount,
notwithstanding the exchange of interests in the Company's reimbursement
obligations pursuant to Section 7.02. Each other Lender shall have a claim
against such defaulting U.S. Lender for any damages sustained by it as a result
of such default, including, in the event that such Letter of Credit shall expire
undrawn, its CAM Percentage of the defaulted amount.
(c) In the event that after the CAM Exchange Date any Letter of Credit
shall expire undrawn, the U.S. Administrative Agent shall withdraw from the
Reserve Account of each Lender the amount remaining on deposit therein in
respect of such Letter of Credit and distribute such amount to such Lender.
(d) With the prior written approval of the U.S. Administrative Agent (not
to be unreasonably withheld) and the Issuing Bank, any Lender may withdraw the
amount held in its Reserve Account in respect of the undrawn amount of any
Letter of Credit. Any Lender making such a withdrawal shall be unconditionally
obligated, in the event there shall subsequently be a drawing under such Letter
of Credit, to pay over to the U.S. Administrative Agent, for the account of the
Issuing Bank, on demand, its CAM Percentage of such drawing or payment.
(e) Pending the withdrawal by any Lender of any amounts from its Reserve
Account as contemplated by the above paragraphs, the U.S. Administrative Agent
will, at the direction of such Lender and subject to such rules as the U.S.
Administrative Agent may prescribe for the avoidance of inconvenience, invest
such amounts in Permitted Investments. Each Lender that has not withdrawn its
amounts in its Reserve Account as provided in paragraph (d) above shall have the
right, at intervals reasonably specified by the U.S. Administrative Agent, to
withdraw the earnings on investments so made by the U.S. Administrative Agent
with amounts in its Reserve Account and to retain such earnings for its own
account.
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ARTICLE VIII
Guarantee
In order to induce the Lenders to extend credit to the Canadian Borrower
hereunder, the Company hereby irrevocably and unconditionally guarantees, as a
primary obligor and not merely as a surety, the payment when and as due of the
Obligations of the Canadian Borrower (the "Guaranteed Obligations"). The Company
further agrees that the due and punctual payment of such Guaranteed Obligations
may be extended or renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its guarantee hereunder
notwithstanding any such extension or renewal of any such Guaranteed Obligation.
Except as otherwise provided herein, the Company waives presentment to,
demand of payment from and protest to the Canadian Borrower of any of the
Guaranteed Obligations, and also waives notice of acceptance of its guarantee
hereunder and notice of protest for nonpayment. The Company's guarantee of the
Guaranteed Obligations hereunder shall not be affected by (a) the failure of any
Agent or Lender to assert any claim or demand or to enforce any right or remedy
against either Borrower under the provisions of this Agreement; (b) any
extension or renewal of any of the Guaranteed Obligations; (c) any rescission,
waiver, amendment or modification of, or release from, any of the terms or
provisions of this Agreement or any other agreement; (d) any default, failure or
delay, willful or otherwise, in the performance of any of the Guaranteed
Obligations; or (e) any other act, omission or delay to do any other act which
may or might in any manner or to any extent vary the risk of the Company or
otherwise operate as a discharge of a guarantor as a matter of law or equity or
which would impair or eliminate any right of the Company to subrogation.
The Company further agrees that its guarantee hereunder constitutes a
guarantee of payment when due (whether or not any bankruptcy or similar
proceeding shall have stayed the accrual or collection of any of the Guaranteed
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Agent or Lender to
any balance of any deposit account or credit on the books of any Agent or Lender
in favor of the Canadian Borrower or any other Person.
The guarantee of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of any
of the Guaranteed Obligations, any impossibility in the performance of any of
the Guaranteed Obligations or otherwise.
The Company further agrees that its guarantee hereunder shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Guaranteed Obligation is rescinded or must otherwise be
restored by any Agent or Lender upon the bankruptcy or reorganization of the
Canadian Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other right
which any Agent or Lender may have at law or in equity against the Company by
virtue hereof, upon the failure of the Canadian Borrower to pay any Guaranteed
66
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, the Company hereby
promises to and will, upon receipt of written demand by any Agent or Lender,
forthwith pay, or cause to be paid, to the Applicable Agent or Lender in cash an
amount equal to the unpaid principal amount of such Guaranteed Obligation then
due, together with accrued and unpaid interest thereon. The Company further
agrees that if payment in respect of any Guaranteed Obligation shall be due in
Canadian Dollars and/or at a place of payment other than New York and if, by
reason of any Change in Law, disruption of currency or foreign exchange markets,
war or civil disturbance or other event, payment of such Guaranteed Obligation
in such currency or at such place of payment shall be impossible or, in the
reasonable judgment of any Agent or Lender, not consistent with the protection
of its rights or interests, then, at the election of the U.S. Administrative
Agent, the Company shall make payment of such Guaranteed Obligation in U.S.
Dollars (based upon the applicable Exchange Rate in effect on the date of
payment) and/or in New York, and shall indemnify the Canadian Administrative
Agent and any Canadian Lender against any losses or reasonable out-of-pocket
expenses that it shall sustain as a result of such alternative payment.
Upon payment by the Company of any sums as provided above, all rights of
the Company against the Canadian Borrower arising as a result thereof by way of
right of subrogation or otherwise shall in all respects be subordinated and
junior in right of payment to the prior indefeasible payment in full of all the
Guaranteed Obligations owed by the Canadian Borrower to the Agents and the
Lenders.
Nothing shall discharge or satisfy the liability of the Company hereunder
except payment in full of the Guaranteed Obligations.
ARTICLE IX
The Agents
Each of the Lenders and the Issuing Bank hereby irrevocably appoint the
U.S. Administrative Agent and Canadian Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to each such Agent by
the terms hereof, together with such actions and powers as are reasonably
incidental thereto. The bank serving as the U.S. Administrative Agent and the
bank serving as the Canadian Administrative Agent hereunder shall each 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 an Agent, and each 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 an Agent hereunder.
The Agents shall not have any duties or obligations except those expressly
set forth herein. Without limiting the generality of the foregoing, (a) neither
Agent shall be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) neither Agent shall have
any duty to take any discretionary action or exercise any discretionary powers,
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except discretionary rights and powers expressly contemplated hereby that such
Agent is required to exercise in writing as directed by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances provided in Section 10.02) and (c) except as expressly set forth
herein, neither Agent shall have any duty to disclose, and neither Agent shall
be liable for the failure to disclose, any information relating to the Company
or any Subsidiary that is communicated to or obtained by such bank serving as an
Agent or any of its Affiliates in any capacity. Neither Agent shall 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 10.02) or in the
absence of its own gross negligence or willful misconduct. Each Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to such Agent by a Borrower or a Lender, and neither Agent
shall 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 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 such
Agent.
Each 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. Each 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. Each Agent may consult with legal counsel (who may be counsel for
either Borrower), 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.
Each 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 such Agent. Each
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 each 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 Agent.
Subject to the appointment and acceptance of a successor as provided in
this paragraph, either Agent may resign at any time by notifying the Lenders,
the 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 Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Agent which shall be a bank
with an office in New York, New York, if such successor bank is the U.S.
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Administrative Agent, or Toronto, if such successor bank is the Canadian
Administrative Agent, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Company to a successor Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After an Agent's resignation hereunder,
the provisions of this Article IX and Section 10.03 shall continue in effect for
the benefit of such retiring 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 such Agent.
Each Lender acknowledges that it has, independently and without reliance
upon either 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 either 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.
ARTICLE X
Miscellaneous
SECTION 10.01. 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 the Company, to it at 1390 Enclave Parkway, Houston, Texas
77077-2027, Attention of Ms. Kathy Oates, Assistant Treasurer (Telecopy No.
(281) 584-1792), with copies to Attention of General Counsel (Telecopy No.
(281) 584-2510);
(ii) if to the Canadian Borrower, to it at c/o the Company, at 1390
Enclave Parkway, Houston, Texas 77077-2027, Attention of Ms. Kathy Oates,
Assistant Treasurer (Telecopy No. (281) 584-1792), with copies to Attention
of General Counsel (Telecopy No. (281) 584-2510);
(iii) if to the U.S. Administrative Agent, to JPMorgan Chase Bank,
N.A., JPMorgan Loan Services, 1111 Fannin Street, 10th Floor, Houston,
Texas, 77002, Attention of Ms. Stacey Ahrendt (Telecopy No. (713)
750-2666), with a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New
York 10017, Attention of Teri Streusand (Telecopy No. (212) 270-3279);
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(iv) if to the Canadian Administrative Agent, to it at JPMorgan Chase
Bank, N.A., Toronto Branch, 200 Bay Street, Royal Bank Plaza, South Tower,
Suite 1800, Toronto Ontario, M5J 2J2, Attention of Funding Officer
(Telecopy No. (416) 981-9128), with a copy to JPMorgan Chase Bank, N.A.,
JPMorgan Loan Services, 1111 Fannin Street, 10th Floor, Houston, Texas,
77002, Attention of Ms. Stacey Ahrendt (Telecopy No. (713) 750-2666);
(v) if to the Issuing Bank, to it at JPMorgan Chase Bank, N.A.,
JPMorgan Loan Services, 1111 Fannin Street, 10th Floor, Houston, Texas,
77002, Attention of Ms. Stacey Ahrendt (Telecopy No. (713) 750-2666), with
a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York 10017,
Attention of Teri Streusand (Telecopy No. (212) 270-3279);
(vi) if to the Swingline Lender, to it at JPMorgan Chase Bank, N.A.,
JPMorgan Loan Services, 1111 Fannin Street, 10th Floor, Houston, Texas,
77002, Attention of Ms. Stacey Ahrendt (Telecopy No. (713) 750-2666), with
a copy to JPMorgan Chase Bank, N.A., 270 Park Avenue, New York 10017,
Attention of Teri Streusand (Telecopy No. (212) 270-3279); 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 U.S. Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the Agents
and the applicable Lender. Either Agent or the Company 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 10.02. Waivers; Amendments. (a) No failure or delay by either
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder
shall 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 Agents,
the Issuing Bank and the Lenders hereunder 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 consent to any departure by either Borrower
therefrom shall in any event be effective unless the same shall be permitted by
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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, the
acceptance of a B/A or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether either Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Company, and the Required Lenders or by the Company, and the U.S.
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
the amount of any LC Exposure or any amount payable in respect of B/As or reduce
the rate of interest thereon, 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 B/A or the amount of any
LC Exposure, or any interest thereon, or any fees or other amount 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 2.18(c) or (d) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, or (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; provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of
either Agent, the Issuing Bank or the Swingline Lender hereunder without the
prior written consent of such Agent, the Issuing Bank or the Swingline Lender,
as the case may be.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) The Company shall pay (i) all reasonable out-of-pocket expenses
incurred by either Agent or any of their Affiliates, including the reasonable
fees, charges and disbursements of counsel for the U.S. Administrative Agent and
the Canadian Administrative Agent, in connection with the syndication of the
credit facilities provided for herein, the preparation and administration of
this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the 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 reasonable
out-of-pocket expenses incurred by either Agent, the Issuing Bank or any Lender,
including the fees, charges and disbursements of any counsel for either Agent,
the Issuing Bank or any Lender, in connection with the enforcement or protection
of its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made, the B/As accepted and purchased
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, B/A or Letters of Credit.
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(b) The Company shall indemnify each Agent, the 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 reasonable 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 agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any
Loan, B/A or Letter of Credit or the use of the proceeds therefrom (including
any refusal by the 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 the Subsidiaries, or any Environmental
Liability related in any way to the Company or any of the 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 are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence, or willful misconduct or
unlawful acts of such Indemnitee.
(c) WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT, IT IS THE EXPRESS
INTENTION OF THE PARTIES HERETO THAT EACH INDEMNIFIED PERSON SHALL BE
INDEMNIFIED AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR
DAMAGES ARISING OUT OF OR RESULTING FROM THE ORDINARY SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH INDEMNIFIED PERSON. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY
OTHER OBLIGATIONS OF EITHER BORROWER HEREUNDER, THE OBLIGATIONS OF EACH BORROWER
UNDER THIS SECTION 10.03 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND/OR
THE PAYMENT OR ASSIGNMENT OF THE LOANS.
(d) To the extent that the Company fails to pay any amount required to be
paid by it to either Agent, the Issuing Bank or the Swingline Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to
such Agent, the 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 such Agent, the Issuing Bank or the Swingline Lender in its capacity as
such.
(e) To the extent permitted by applicable law, neither Borrower shall
assert, and each 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, B/A or Letter of Credit or the use of the proceeds
thereof.
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(f) All amounts due under this Section shall be payable not later than 30
days after written demand therefor.
SECTION 10.04. 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
the Issuing Bank that issues any Letter of Credit), except that (i) neither
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 either 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 the 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 Agent, the 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
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 or an Affiliate of a Lender
or, if an Event of Default has occurred and is continuing, for an
assignment to any other assignee; and
(B) the U.S. Administrative Agent, provided that no consent of
the U.S. Administrative Agent shall be required for an assignment to
an assignee that is a Lender immediately prior to giving effect to
such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(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, the amount of the Commitment of
the assigning Lender subject to each such assignment (determined as of
the date the Assignment and Assumption with respect to such assignment
is delivered to the U.S. Administrative Agent) shall not be less than
US$5,000,000 unless each of the Company and the U.S. 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;
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(C) the parties to each assignment shall execute and deliver to
the U.S. Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of US$3,500;
(D) in the case of any such assignment of a Canadian Commitment
or Canadian Revolving Loan, the assignee shall be a Canadian Resident;
and
(E) the assignee, if it shall not be a Lender, shall deliver to
the U.S. Administrative Agent an Administrative Questionnaire.
(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 2.15,
2.16, 2.17 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
10.04 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 U.S. Administrative Agent, acting for this purpose as an
agent for each Borrower, 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, amounts in respect of B/As 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, each Agent, the Issuing Bank 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 the Company, the 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 U.S. 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
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Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of either Borrower, either
Agent, the Issuing Bank or the Swingline Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); 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 Agents, the Issuing Bank 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
10.02(b) or the postponement of any prepayment of a Canadian Borrowing made
pursuant to Section 2.11(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 2.15, 2.16 and 2.17 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 10.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.18(c) as
though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 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 shall not be
entitled to the benefits of Section 2.17 unless the Company is notified of
the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(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 10.05. Survival. All covenants, agreements, representations and
warranties made by either 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, acceptance of any B/A and issuance of any Letters of Credit, regardless
of any investigation made by any such other party or on its behalf and
notwithstanding that either Agent, the Issuing Bank or any Lender may have had
75
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 have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 10.03 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the Loans
and B/A, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. 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 any
separate letter agreements with respect to fees payable to the U.S.
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 U.S. Administrative Agent and when the U.S.
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 10.07. 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 10.08. 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 either
Borrower against any of and all the obligations of such 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 10.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed, and the rights of the Parties determined,
in accordance with and governed by the law of the State of New York.
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(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 either thereof, in any action or proceeding arising out of or 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 either Agent, the Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement against either 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 10.01. 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 10.10. 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 10.11. 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 10.12. Confidentiality. Each of the Agents 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
77
advisors (it being understood that the Persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed
to keep such Information confidential), (b) to the extent requested by any
regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (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
either 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 either Agent,
the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Company. For the purposes of this Section, "Information" means all
information received from the Company relating to the Company or its business,
other than any such information that is available to any Agent, the Issuing Bank
or any Lender on a nonconfidential basis prior to disclosure by the Company or
is furnished or deemed furnished pursuant to Section 5.01(a)(i), (b)(i), (e) or
(f); provided that, in the case of information received from the Company 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 10.13. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.14. 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 (including
the Canadian Borrower) 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.
78
(b) The obligations of each Borrower 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, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to the Applicable Creditor
in the Agreement Currency, the Applicable Creditor shall refund the amount of
such excess to the applicable Borrower. The obligations of the parties contained
in this Section 10.14 shall survive the termination of this Agreement and the
payment of all other amounts owing hereunder.
SECTION 10.15. USA Patriot Act. Each Lender hereby notifies the Borrowers
that pursuant to the requirements of the USA Patriot Act, it is required to
obtain, verify and record information that identifies each Borrower, which
information includes the name and address of each Borrower and other information
that will allow such Lender to identify each Borrower in accordance with the USA
Patriot Act.
SECTION 10.16. Independence of Covenants. All covenants contained in this
Agreement shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that such action
or condition would be permitted by an exception to, or otherwise be within the
limitations of, another covenant shall not avoid the occurrence of a Default or
an Event of Default if such action is taken or condition exists.
SECTION 10.17. FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE NOTES, IF
ANY, CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(a) OF THE TEXAS
BUSINESS & COMMERCE CODE, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES RELATING TO THE SUBJECT
MATTER HEREOF AND THEREOF.
SECTION 10.18. Waiver of Notice of Termination Under Existing Credit
Agreement. Each Lender that is a "Lender" under (and as defined in) the Existing
Credit Agreement hereby waives any requirement under the Existing Credit
Agreement that notice be given prior to the prepayment of loans or termination
of commitments thereunder; provided that such commitments are terminated by
notice to the administrative agent under the Existing Credit Agreement on the
Effective Date.
79
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.
SYSCO CORPORATION,
by
/s/ Kathy Oates
-------------------------------------
Name: Kathy Oates
Title: Assistant Treasurer
SYSCO INTERNATIONAL, CO.,
By
/s/ Diane Day Sanders
-------------------------------------
Name: Diane Day Sanders
Title: Treasurer
80
JPMORGAN CHASE BANK, N.A., individually
and as U.S. Administrative Agent,
by
/s/ Teri Streusand
------------------------------------
Name: Teri Streusand
Title: Vice President
JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH, individually and as Canadian
Administrative Agent,
by
/s/ Christine Chan
------------------------------------
Name: Christine Chan
Title: Vice President
81
BANK OF AMERICA, N.A.
by
/s/ Bill Sweeney
------------------------------------
Name: Bill Sweeney
Title: Senior Vice President
82
BANK OF AMERICA, N.A. (CANADA BRANCH)
by
/s/ Medina Sales de Andrade
------------------------------------
Name: Medina Sales de Andrade
Title: Assistant Vice President
83
THE BANK OF NEW YORK
by
/s/ Kevin Higgins
------------------------------------
Name: Kevin Higgins
Title: Vice President
84
THE BANK OF TOKYO-MITSUBISHI, LTD.,
HOUSTON AGENCY
by
/s/ Douglas M. Barnell
------------------------------------
Name: Douglas M. Barnell
Title: Vice President & Manager
85
COMERICA BANK
by
/s/ Mark B. Grover
------------------------------------
Name: Mark B. Grover
Title: First Vice President
86
CONGRESS FINANCIAL CORPORATION
(CANADA)
by
/s/ Enza Agosta
------------------------------------
Name: Enza Agosta
Title: Vice President
87
THE NORTHERN TRUST COMPANY
by
/s/ Paul H. Theiss
------------------------------------
Name: Paul H. Theiss
Title: Vice President
88
PNC BANK, NATIONAL ASSOCIATION
by
/s/ William J. Bowne
------------------------------------
Name: William J. Bowne
Title: Managing Director
89
SUNTRUST BANK
by
/s/ Daniel S. Komitas
------------------------------------
Name: Daniel S. Komitas
Title: Director
90
THE TORONTO-DOMINION BANK
by
/s/ Debbi L. Brito
------------------------------------
Name: Debbi L. Brito
Title: Manager, Corporate Credit
Compliance & Administration
91
TORONTO-DOMINION (TEXAS) LLC
by
/s/ Jim Bridwell
------------------------------------
Name: Jim Bridwell
Title: Authorized Agent
92
WACHOVIA BANK, NATIONAL ASSOCIATION
by
/s/ Dennis Waltrich
------------------------------------
Name: Dennis Waltrich
Title: Associate
93
WELLS FARGO BANK N.A.
by
/s/ Steve Melton
------------------------------------
Name: Steve Melton
Title: Vice President
94
WELLS FARGO FINANCIAL CORPORATION CANADA
by
/s/ Nick Scarfo
------------------------------------
Name: Nick Scarfo
Title: Vice President
95
WILLIAM STREET COMMITMENT CORPORATION
(RECOURSE ONLY TO ASSETS OF WILLIAM
STREET COMMITMENT CORPORATION)
by
/s/ Mark Walton
------------------------------------
Name: Mark Walton
Title: Assistant Vice President
96
ZIONS FIRST NATIONAL BANK
by
/s/ Terri K. Lins
------------------------------------
Name: Terri K. Lins
Title: Vice President
97
SCHEDULE 2.01
COMMITMENTS
Institution U.S. Canadian Total
Commitments Commitments Commitments
JPMorgan Chase Bank, N.A. $20,000,000 $30,000,000 $50,000,000
Bank of America, N.A. 35,000,000 15,000,000 50,000,000
SunTrust Bank 50,000,000 - 50,000,000
The Bank of Tokyo-Mitsubishi, Ltd. 50,000,000 - 50,000,000
Wachovia Bank, National Association 35,000,000 15,000,000 50,000,000
Wells Fargo Bank, N.A. 40,000,000 40,000,000
Wells Fargo Financial Corporation Canada - 10,000,000 10,000,000
TD Securities (USA) LLC 20,000,000 30,000,000 50,000,000
Comerica Bank 25,000,000 - 25,000,000
PNC Bank, National Association 25,000,000 - 25,000,000
The Bank of New York 25,000,000 - 25,000,000
The Northern Trust Company 25,000,000 - 25,000,000
William Street Commitment Corporation 25,000,000 - 25,000,000
Zions First National Bank 25,000,000 - 25,000,000
SCHEDULE 3.07
SYSCO CORPORATION
SUBSIDIARIES, DIVISIONS AND DBA'S
JURISDICTION
SUBSIDIARY NAME OF
INCORPORATION
A.M. Briggs, Inc. Delaware
Baugh Supply Chain Cooperative, Inc. Delaware
Baugh Northeast Co-Op, Inc.1 Delaware
Baugh Southeast Cooperative, Inc. 2 Delaware
Buckhead Beef Company Delaware
DiPaolo/Sysco Food Services, Inc. (Name Saver) Ohio
Economy Foods, Inc. 3 California
Freedman Meats, Inc. Delaware
*Freedman Food Service, Inc. Texas
*#Freedman Food Service of Austin, LP*** Texas
*Freedman Food Service of Dallas, Inc. Texas
*Freedman Food Service of Denver, Inc. Delaware
*#Freedman Food Service of San Antonio, LP*** Texas
*Freedman-KB, Inc. Delaware
FreshPoint Holdings, Inc. Delaware
*FreshPoint, Inc. Delaware
*Fowler & Huntting, LLC Delaware
*FreshPoint Distribution, Inc. Delaware
*American Produce & Vegetable Co., Inc. Delaware
*IL Paese, Inc. Texas
*Carnival Fruit Company, Inc. Florida
*FreshPoint of Southern California, Inc. 4 California
*Lee Ray-Tarantino Co., Inc. California
*FreshPoint Value Added Services, Inc.5 California
*Movsovitz & Sons of Florida, Inc. Florida
*Sunburst Foods, Inc. Delaware
*FreshPoint of Houston, Inc. (Inactive) Delaware
*FreshPoint of Palm Beach, Inc. (Inactive) Florida
*FreshPoint of Washington D.C., Inc.(Inactive)6 District of Columbia
*FreshPoint of Atlanta, Inc. 7 Georgia
*P. Tavilla Co. (Miami) Inc. (Inactive) Florida
*Red's Market, Inc. Florida
*Produce America, Inc. (Inactive) Delaware
*FreshPoint Tomato, LLC 8 Delaware
*Overton Distributors, Inc. Tennessee
*Piranha Produce, Inc. Delaware
*Pacific Produce Co. Ltd. Alberta, Canada
* Sysco I&S Foodservices, Inc. Alberta, Canada
*FreshPoint of Denver, Inc. Colorado
*FreshPoint of Las Vegas, Inc. Delaware
Fulton Provision Co. 9 Delaware
Grants - Sysco Food Services, Inc. (Name Saver) Michigan
Page 1 of 6
JURISDICTION
SUBSIDIARY NAME OF
INCORPORATION
Guest Supply, LLC Delaware
*Guest Packaging, LLC Delaware
Guest Supply, Inc. New Jersey
*Breckenridge-Remy, LLC 10 Delaware
*Guest Supply Canada, Inc. 11 Canada
*Guest International Ltd. United Kingdom
*Guest Packaging, LLC Delaware
Hallsmith-Sysco Food Services, LLC Delaware
INGENIUM Medical Supply Chain Solutions, Inc. (Inactive) Delaware
International Food Group, Inc. Florida
International Food Group Acquisition, Inc. (Inactive) Delaware
Malcolm Meats Company Delaware
Nobel/Sysco Food Services Company Colorado
*Sysco Food Services of New Mexico, LLC 12 Delaware
Olewine's Sysco Food Services Company (Name Saver) Delaware
Pegler-Sysco Food Services Company Nebraska
*Pegler-Sysco Transportation Co. Nebraska
Robert's Sysco Food Services, Inc. Delaware
SFS Shelf, LLC Delaware
Sysco Administrative Services, Inc. Delaware
*#Sysco Proprietary LP13 Texas
*#Sysco Services LP14 Texas
SYSCO Canada, Company Nova Scotia
*Sysco Holdings of B.C., Inc. Canada
*North Douglas Sysco Food Services, Inc. Canada
*Sysco Holdings of Kelowna, Inc. Canada
*Sysco HRI Supply Ltd. Canada
*Sysco Holdings Limited New Brunswick
*Sysco Food Services of Central Ontario, Inc. 15 Ontario, Canada
Midwest Cooperative, Inc. Delaware
Southwest Cooperative, Inc. Delaware
Western Cooperative, Inc. Delaware
Sysco Asian Foods, Inc. Delaware
Sysco eVentures, Inc. Delaware
Sysco Financial Services, LLC Delaware
*Sysco Finance, LP16 Delaware
*Hardin's-Sysco Food Services, LLC Delaware
*Lankford-Sysco Food Services, LLC Delaware
*Robert Orr-Sysco Food Services, LLC Delaware
*Sysco Food Services of New Orleans, LLC Delaware
*Sysco Texas Partners, Inc. Delaware
*Sysco Administrative Services II, Inc. Delaware
**Sysco Food Services of Austin, LP Delaware
**Sysco Food Services of Dallas, LP Delaware
**Sysco Food Services of Houston, LP Delaware
**Sysco Food Services of San Antonio, LP Delaware
Sysco Food Services of Albany, LLC Delaware
Page 2 of 6
JURISDICTION
SUBSIDIARY NAME OF
INCORPORATION
Sysco Food Services of Arizona, Inc. Delaware
*Sysco Arizona Leasing, Inc. Delaware
Sysco Food Services of Arkansas, LLC Delaware
Sysco Food Services of Atlanta, LLC Delaware
Sysco Food Services of Baltimore, LLC Delaware
Sysco Food Services of Baraboo, LLC 17 Delaware
Sysco Food Services of Beaumont, Inc. (Inactive) Delaware
Sysco Food Services of Central Alabama, Inc. Delaware
Sysco Food Services of Central California, Inc. 18 California
Sysco Food Services of Central Florida, Inc. Delaware
Sysco Food Services of Central Pennsylvania, LLC Delaware
Sysco Food Services of Charlotte, LLC Delaware
Sysco Food Services-Chicago, Inc. Delaware
Sysco Food Services of Cincinnati, LLC Delaware
Sysco Food Services of Cleveland, Inc. Delaware
Sysco Food Services of Columbia, LLC 19 Delaware
Sysco Food Services of Columbus, Inc.20 Ohio
Sysco Merger Ohio II, Inc. 21 Delaware
*#Sysco Abbott Transportation Services, Ltd. Ohio
Sysco Food Services of Connecticut, LLC Delaware
Sysco Food Services of Detroit, LLC Delaware
Sysco Food Services of Eastern Wisconsin, LLC Delaware
Sysco Food Services of Grand Rapids, LLC Delaware
Sysco Food Services - Gulf Coast, Inc. 22 Delaware
Sysco Food Services of Hampton Roads, Inc. 23 Delaware
Sysco Food Services of Idaho, Inc. Idaho
Sysco Food Services of Indianapolis, LLC Delaware
Sysco Food Services of Iowa, Inc. Delaware
Sysco Food Services of Jackson, LLC Delaware
Sysco Food Services - Jacksonville, Inc. Delaware
Sysco Food Services of Jamestown, LLC Delaware
Sysco Food Services of Kansas City, Inc. Missouri
Sysco Food Services of Las Vegas, Inc. Delaware
Sysco Food Services of Los Angeles, Inc. Delaware
Sysco Food Services of Metro New York, LLC 24 Delaware
*Walker Foods, Inc. 25 New York
Sysco Food Services of Minnesota, Inc. Delaware
Sysco Food Services of Montana, Inc. Delaware
Sysco Food Services of North Dakota, Inc. Delaware
Sysco Food Services of Northern New England, Inc. Maine
Sysco Food Services of Oklahoma, LLC 26 Delaware
Sysco Food Services of Philadelphia, LLC Delaware
Sysco Food Services of Pittsburgh, LLC 27 Delaware
Sysco Food Services of Portland, Inc. Delaware
Sysco Food Services of Raleigh, LLC 28 Delaware
Sysco Food Services of Sacramento, Inc. Delaware
Sysco Food Services of San Diego, Inc. Delaware
Page 3 of 6
JURISDICTION
SUBSIDIARY NAME OF
INCORPORATION
Sysco Food Services of San Francisco, Inc. California
Sysco Food Services of Seattle, Inc. Delaware
Sysco Food Services of South Florida, Inc. Delaware
Sysco Food Services of Southeast Florida, LLC Delaware
Sysco Food Services of St. Louis, LLC Delaware
Sysco Food Services of Syracuse, LLC Delaware
Sysco Food Services of Vancouver, Inc. 29 B.C., Canada
*Four Seasons Food Ltd. B.C., Canada
Sysco Food Services of Ventura, Inc. Delaware
Sysco Food Services of Virginia, LLC Delaware
Sysco Food Services - West Coast Florida, Inc. Delaware
Sysco Food Services of Spokane, Inc. 30 Delaware
Sysco Intermountain Food Services, Inc. Delaware
Sysco/Louisville Food Services Co. Delaware
SyscoMed, Inc. (Inactive) Delaware
Sysco Newport Meat Company Delaware
Sysco SERCA Food Services of New England, Inc. (Inactive) Delaware
Sysco Resources, Inc. Delaware
DIVISIONS
Honeyman's Beef Purveyors SYSCO London
J. J. Derma Meats Ltd. SYSCO Food Services of Quebec
Pronamic Distribution SYSCO Food Services of Regina
Royalty Foods31 SYSCO Sturgeon Falls
SYSCO Food Services of Atlantic Canada SYSCO Thunder Bay
SYSCO Food Services of Calgary SYSCO Food Services of Toronto
SYSCO Food Services of Edmonton SYSCO Food Services of Winnipeg
SYSCO Kingston
ASSUMED NAMES
ENTITY NAME DBA NAME
American Produce & Vegetable Company American FoodService
American Pre-Pack
Choppin' Block
River Ranch Southwest
Baugh Supply Chain Cooperative, Inc Afmark Transportation
Alfmark
BSCC Canada
Baugh Supply Chain Cooperative, Canada
Cooperative De Chaines D'Approvisionnement Baugh, Inc.
Buckhead Beef Company Buckhead Beef of Florida
Central Florida Foodservice
Page 4 of 6
ASSUMED NAMES
ENTITY NAME DBA NAME
Carnival Fruit Company, Inc. FreshPoint South Florida
Freedman Food Service of Austin, LP Texas Meat Purveyors
Freedman Food Service of San Antonio, LP Texas Meat Purveyors
FreshPoint of Denver, Inc. JDS&R Produce
FreshPoint of Houston, Inc. Southern Produce
FreshPoint of Southern California, Inc. FreshPoint of San Diego
FreshPoint Consolidation
G & G Produce
FreshPoint Tomato, LLC Nashville Tomato
Lee-Ray Tarantino Co., Inc. Golden State Produce
Movsovitz & Sons of Florida, Inc. FreshPoint Packers
Movsovitz of Georgia
FreshPoint Savannah
FreshPoint Jacksonville
FreshPoint North Florida
FreshPoint Southern Georgia
Overton Distributors, Inc. FreshPoint of Charlotte
FreshPoint - Overton
FreshPoint of Nashville
FreshPoint of Raleigh
FreshPoint Transportation
Pacific Produce Co., Ltd. Allied Foodservices
Pacific Produce - Nanaimo
Red's Market, Inc. Red's Market - Tampa
Red's Market -- Orlando
FreshPoint-Red's Market of Central Florida
Red's Market
Garden Gourmet Specialties
FreshPoint Central Florida
FreshPoint West Coast Florida
Sysco Asian Foods, Inc. Asian Foods
SYSCO Corporation Theimer-Sysco Food Services
Theimer Food Services
SYSCO Food Services of Canada, Inc. SYSCO Food Services of Canada
SYSCO Canada
SYSCO Food Services of Calgary
SYSCO Food Services of Edmonton
SYSCO Ventra
SYSCO Food Services of Winnipeg
SYSCO Food Services of Regina
SYSCO Regina
SYSCO Food Services of Quebec
SYSCO Services Alimentaires du Quebec
SYSCO Quebec
SYSCO Food Services of Atlantic Canada
SYSCO Food Services of Toronto
SYSCO Kingston
SYSCO Kingston Redistribution Centre
Page 5 of 6
ASSUMED NAMES
ENTITY NAME DBA NAME
SYSCO London
SYSCO Sturgeon Falls
SYSCO Thunder Bay
J.J. Derma Meats
Honeyman's Beef Purveyors
Sysco Food Services of Columbus, Inc. Abbott Sysco Food Services
Sysco Food Services of Seattle, Inc. Sysco Food Services of Alaska
Sysco Food Services of Spokane, Inc. Sysco Food Services of Spokane
SYSCO Food Services of Vancouver, Inc.
Pronamic Distribution
Pronamic
The SYGMA Network of Canada
____________________________________
1 F/k/a Northeast Cooperative, Inc.
2 F/k/a Southeast Cooperative, Inc.
3 Acquired by Sysco Corporation on 5/27/2005; dba Facciola Meat Company
4 F/k/a G&G Produce Company
5 F/k/a Royal Foods Company, Inc.
6 F/k/a Imperial Produce Co., Inc.
7 F/k/a Mitt Parker Company, Incorporated
8 D/b/a Nashville Tomato
9 F/k/a Sysco Food Services of Oregon, Inc.
10 Franklin Supply Company merged into Breckenridge-Remy Co. 4/26/2002. Guest
Distribution Services, Inc. merged into this entity on 7/2/2005.
Breckenridge-Remy Co. merged into Breckenridge-Remy, LLC 10/1/2005.
11 F/k/a Guest International (Canada) Ltd.
12 F/k/a Nobel/Sysco Food Services Co. - Southwest Division began operating as
a Limited Liability Company 1/1/2004
13 Limited partnership whose Limited Partner is Sysco Administrative Services,
Inc. (99%) and General Partner is Sysco Corporation (1%)
14 Limited partnership whose Limited Partner is Sysco Administrative Services,
Inc. (99%) and General Partner is Sysco Corporation (1%)
15 F/k/a Sysco Food Services of Ontario, Inc. which was formerly known as
Strano Sysco Food Services Ltd.
16 A Limited Partnership whose General Partner is Sysco Financial Services,
LLC (1%) and Limited Partner is Sysco Administrative Services II, Inc.
(99%).
17 F/k/a Baraboo-Sysco Food Services
18 F/k/a Sysco Food Services of Modesto, Inc.
19 F/k/a Sysco Food Services of South Carolina, LLC
20 Sysco Merger Ohio, Inc. merged into Abbott Foods, Inc. which then changed
its name to Sysco Food Services of Columbus, Inc. 10/15/2002 with a d/b/a
Abbott Sysco Food Services; owns 99% interest of Sysco Abbott
Transportation Services, Ltd.
21 Owns 1% interest of Sysco Abbott Transportation Services, Ltd.
22 Foldout to be located in Geneva, Alabama and operational sometime in FY
2006
23 F/k/a Doughtie's Sysco Food Services, Inc.
24 F/k/a Ritter Sysco Food Services, LLC
25 Acquired by Sysco Food Services of Metro New York, LLC effective 6/01/2005
26 F/k/a Sysco Food Services of Oklahoma, Inc., converted to a Limited
Liability Company effective 12/31/2002
27 F/k/a Sysco Food Services of Pittsburgh, Inc., merged with and into Sysco
Food Services of Pittsburgh, LLC effective 12/31/2002
28 Foldout of Sysco Charlotte, to be operational sometime in 2006
29 F/k/a K.W. Food Distributors Ltd. (Konings)
30 F/k/a Sysco Food Services, Inc.
31 Acquired by Buckhead Beef Company effective 5/29/2005
Page 6 of 6
Sysco Corporation
Schedule # 6.01 - Liens
Capitalized
Company IRB Mortgage Other Lease Total
- ---------------------------- -------------- ------------ ------------- -------------- --------------
Abbott 0 0 0 661,000 661,000
Arizona 0 0 0 6,000 6,000
Austin 0 0 0 96,000 96,000
Baltimore 0 0 0 231,000 231,000
Central California 0 0 0 155,000 155,000
Central Florida 0 0 0 165,000 165,000
Central Penn 934,000 0 0 0 934,000
Chicago 0 0 0 52,000 52,000
Cincinnati 0 0 0 187,000 187,000
Denver 0 0 0 100,000 100,000
Detroit 0 0 0 28,000 28,000
East Wisconsin 0 0 0 50,000 50,000
Grand Rapids 0 0 0 154,000 154,000
Hallsmith 0 0 0 248,000 248,000
Indianapolis 0 0 0 189,000 189,000
Jackson 4,500,000 0 0 176,000 4,676,000
Jacksonville 0 0 0 192,000 192,000
Los Angeles 0 0 0 229,000 229,000
Metro NY 0 0 0 170,000 170,000
Montana 2,500,000 1,130,000 0 0 3,630,000
New Orleans 0 0 0 226,000 226,000
N New England 0 0 0 112,000 112,000
Oklahoma 0 0 0 153,000 153,000
Orr 0 0 0 180,000 180,000
Philadelphia 0 0 0 221,000 221,000
San Antonio 0 0 0 41,000 41,000
San Francisco 0 0 0 1,134,000 1,134,000
Seattle 8,000,000 0 0 159,000 8,159,000
Syracuse 0 0 0 176,000 176,000
Ventura 0 0 0 239,000 239,000
Virginia 0 0 0 1,000 1,000
West Coast Florida 0 0 0 60,000 60,000
Serca Toronto 0 0 0 20,913,000 20,913,000
Asian 0 2,446,000 0 0 2,446,000
Guest Supply 0 0 6,287,000 0 6,287,000
Honeyman's 0 0 0 53,000 53,000
FP American Foods 0 0 0 77,000 77,000
FP Atlantic Group 0 0 0 1,000 1,000
FP Corporate 0 0 0 169,000 169,000
FP Lee Ray Tarantino 0 0 0 36,000 36,000
FP Red's Market 0 0 0 52,000 52,000
FP Piranha Foods 0 0 0 48,000 48,000
FP Southern Calif 0 0 0 1,000 1,000
Corporate 0 0 0 5,167,000 5,167,000
- ---------------------------- -------------- ------------ ------------- -------------- --------------
GRAND TOTAL 15,934,000 3,576,000 6,287,000 32,308,000 58,105,000
============================ ============== ============ ============= ============== ==============
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Applicable Agent as contemplated below (i) all of the Assignor's rights and
obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the credit facilities identified
below (including any guarantees in respect thereof) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of
action and any other right of the Assignor (in its capacity as a Lender) against
any Person, whether known or unknown, arising under or in connection with the
Credit Agreement, any other documents or instruments delivered pursuant thereto
or the loan transactions governed thereby or in any way based on or related to
any of the foregoing, including contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity related to the
rights and obligations sold and assigned pursuant to clause (i) above (the
rights and obligations sold and assigned pursuant to clauses (i) and (ii) above
being referred to herein collectively as the "Assigned Interest"). The Assigned
Interest does not include any Swingline Commitment, but includes participations
in any Swingline Loans. Such sale and assignment is without recourse to the
Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
1. Assignor: ____________________________________________________
2. Assignee: ____________________________________________________
[and is an Affiliate/Approved Fund of [Identify Lender]]1
3. Borrower: [SYSCO Corporation; SYSCO International, Co.]
_____________________________
1 Select as applicable.
4. [U.S.; Canadian] Administrative Agent: [JPMorgan Chase Bank,
N.A., as U.S. Administrative Agent under the Credit Agreement;
JPMorgan Chase Bank N.A., Toronto Branch, as Canadian
Administrative Agent under the Credit Agreement]
5. Credit Agreement: The $500,000,000 Credit Agreement dated as of
November 4, 2005, among SYSCO Corporation, SYSCO International,
Co., the Lenders party thereto, JPMorgan Chase Bank, N.A., as
U.S. Administrative Agent, and JPMorgan Chase Bank, N.A., Toronto
Branch, as Canadian Administrative Agent.
6. Assigned Interest:
Facilities Assigned Aggregate Amount of Amount of Percentage Assigned
Commitment for all Commitment Assigned of Commitment2
Lenders
U.S. Commitment $ 400,000,000 $ %
Canadian Commitment $ 100,000,000 $ %
Effective Date: ____________, 20___ [TO BE INSERTED BY [U.S; CANADIAN]
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION
OF TRANSFER IN THE REGISTER THEREFOR].
_________________________
2 Set forth, to at least 9 decimals, as a percentage of the Commintment
of all Lenders thereunder.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR [NAME OF ASSIGNOR],
by
_____________________________________
Title:
ASSIGNEE [NAME OF ASSIGNEE],
by
_____________________________________
Title:
[Consented to and]3 Accepted:
JPMORGAN CHASE BANK, N.A., as U.S.
Administrative Agent,
by
_____________________________________
Title:
[Consented to:]4
SYSCO CORPORATION,
by
_____________________________________
Title:
________________________
3 To be included only if the consent of the U.S. Administrative Agent is
required by Section 10.04(b)(i)(B) of the Credit Agreement
4 o be included only if the consent of the Borrower is required by ion
10.04(b)(i)(S) of the Credit Agreement
ANNEX 1
SYSCO CORPORATION
SYSCO INTERNATIONAL, CO.
$500,000,000 CREDIT FACILITIES
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Transaction, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Transactions,
(iii) the financial condition of the Borrowers, any of the Subsidiaries or other
Affiliates of the Company or any other Person obligated in respect of any
Transaction or (iv) the performance or observance by the Borrowers, any of the
Subsidiaries or other Affiliates of the Company or any other Person of any of
their respective obligations under any Transaction.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
satisfies the requirements, if any, specified in the Credit Agreement that are
required to be satisfied by it in order to acquire the Assigned Interest and
become a Lender, (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on either Agent or any other Lender, and (v) if it is a Canadian Lender,
attached to this Assignment and Assumption is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on either Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Transactions, and (ii) it will perform in accordance with their terms all of
the obligations which by the terms of the Transactions are required to be
performed by it as a Lender.
2. Payments. From and after the Effective Date, the Applicable Agent shall
make all payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts which
have accrued to but excluding the Effective Date and to the Assignee for amounts
which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.