EXHIBIT 10(i)
Execution Copy
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 20, 2004 (as amended or
modified from time to time, this "Agreement"), is by and among Universal Forest
Products, Inc., a Michigan corporation (the "Company"), the Canadian Borrower,
the lenders party hereto from time to time (the "Lenders"), JPMorgan Chase Bank,
N.A., a national banking association, as Agent, Wachovia Bank, N.A., as
syndication agent (in such capacity, together with its successors and assigns,
the "Syndication Agent") and Standard Federal Bank, N.A., National City Bank of
the Midwest and Comerica Bank, as documentation agents (in such capacity,
together with their successors and assigns, the "Documentation Agents").
INTRODUCTION
The Borrowers desire to obtain a revolving credit facility, including
letters of credit, in the aggregate principal amount of $250,000,000 in order to
provide funds for working capital and general corporate purposes, with a
sub-limit for Canadian advances to the Canadian Borrower of $30,000,000 and for
bid-option loans of $75,000,000, and the Lenders are willing to establish such
credit facilities in favor of the Borrowers on the terms and conditions herein
set forth.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall have
the following respective meanings:
"Absolute Rate Bid-Option Loan" shall mean a Loan which pursuant to the
applicable Notice of Bid-Option Loan is made at the Bid-Option Absolute Rate.
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Restricted Subsidiaries directly or indirectly (i)
acquires any going business or all or substantially all of the assets of any
firm, corporation, partnership, limited liability company or other business
entity or other Person, or division thereof, whether through purchase of assets,
merger or otherwise or (ii) acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the Capital Stock of any Person.
"Activated Aggregate Canadian Commitments" is defined in Section
2.1(d).
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Adjusted Leverage Ratio" shall mean, as of any date, the ratio of (a)
the Total Seasonally Adjusted Debt as of such date to (b) the Total Adjusted
Capitalization as of such date.
-1-
"Affiliate" when used with respect to any Person shall mean any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with") with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
Capital Stock or by contract or otherwise. A Person shall be deemed to control
another Person if the controlling Person owns 10% or more of any class of Voting
Stock of the controlled Person.
"Agent" shall mean JPMCB in its capacity as contractual representative
of the Lenders pursuant to Article VII, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article VII, and for
purposes of notices to the Agent from the Canadian Borrower, notices by the
Agent to Canadian Lenders under such sections and such other notices with
respect to the Canadian Borrower or Canadian Lenders as designated by the Agent
from time to time, Agent shall be deemed references to the Agent's Affiliate
JPMCB Canada.
"Agent Payment Office" of the Agent shall mean, for each of the Agreed
Currencies, the office, branch, affiliate or correspondent bank of the Agent
specified from time to time by the Agent as the "Agent Payment Office" to the
Borrowers and the Lenders for such Agreed Currency.
"Aggregate Available Canadian Commitments" shall mean at any date of
determination with respect to all Canadian Lenders, an amount equal to the
Available Canadian Commitments of all Canadian Lenders on such date.
"Aggregate Available U.S. Commitments" shall mean as at any date of
determination with respect to all Lenders, an amount equal to the Available U.S.
Commitments of all Lenders on such date.
"Aggregate Syndicated Outstandings" shall mean as at any date of
determination with respect to any Lender, the U.S. Dollar Equivalent of the sum
of the aggregate unpaid principal amount of such Lender's Syndicated Loans on
such date and the amount of such Lender's Pro Rata Share of Letters of Credit
and Swingline Loans on such date and without duplication the amount of such
Lender's participation in other Syndicated Loans pursuant to Section 2.1(e) on
such date.
"Agreed Currencies" shall mean (a) with respect to the Company, U.S.
Dollars; and (b) with respect to the Canadian Borrower, Canadian Dollars.
"Applicable Lending Office" shall mean, with respect to any Advance
made by any Lender or with respect to such Lender's Commitment, the Affiliate of
such Lender or the office or branch of such Lender or of any Affiliate of such
Lender located at the address specified as the applicable lending office for
such Lender set forth next to the name of such Lender in the signature pages
hereof or any other office or branch or Affiliate of such Lender or of any
Affiliate of such Lender hereafter selected and notified to the Borrowers and
the Agent by such Lender.
"Applicable Margin" shall mean, with respect to any Eurodollar Rate
Syndicated Loan, BA Rate Syndicated Loan, facility fee under Section 2.5(a),
Letter of Credit fee under Section 2.5(b)(i) and usage fee under Section 2.5(c),
as the case may be, the applicable percentage set forth in the table below based
upon the Adjusted Leverage Ratio, as adjusted on the date 50 days after the end
of each of the first three fiscal quarters of each fiscal year of the Company
and 95 days after the end of each fiscal year of the
-2-
Company, and shall remain in effect until the next change to be effected
pursuant to this definition, based upon the Adjusted Leverage Ratio as of the
last day of the most recently ended fiscal quarter; provided, however, (i) until
the Applicable Margin is adjusted for the first time based on the Adjusted
Leverage Ratio as of the end of the first fiscal quarter ending after the
Effective Date, the Applicable Margin shall be set at Level III, and (ii) upon
the occurrence and during the continuance of any Default or Event of Default,
the Applicable Margin shall be the highest Applicable Margin set forth in the
table below:
APPLICABLE MARGIN
---------------------------------------------------------------
Eurodollar Rate
Syndicated Loan, BA Rate
Adjusted Syndicated Loan
Level Leverage Ratio and Letter of Credit Fee Facility Fee Usage Fee
- ----- ------------------- ------------------------ ----------------- -----------------
I < or = 0.35 to 1.0 42.5 basis points 12.5 basis points 7.5 basis points
II > 0.35 to 1.0 and
< or = 0.425 to 1.0 50.0 basis points 15.0 basis points 10.0 basis points
III > 0.425 to 1.0 and
< or = 0.50 to 1.0 57.5 basis points 17.5 basis points 12.5 basis points
IV > 0.50 to 1.0 and
< or = 0.55 to 1.0 90.0 basis points 22.5 basis points 12.5 basis points
V > 0.55 to 1.0 107.5 basis points 30.0 basis points 12.5 basis points
"A/R Sale Obligations" shall mean the aggregate consolidated
obligations of the Company and its Restricted Subsidiaries pursuant to all sales
and other transfers of Sale Receivables in connection with Permitted A/R Sale
Transactions. For purposes of this definition, the amount of such obligations
shall be deemed to be, as of any date, the aggregate purchase price paid to date
for Sale Receivables by the purchaser thereof, net of any and all collections
and recourse payments with respect to such Sale Receivables that have been
received to by or on behalf of such purchaser (or, if determined by the Agent,
such other amount determined by the Agent based on the aggregate outstanding
principal amount thereof if all Permitted A/R Sale Transactions were structured
as on balance sheet financings, whether or not shown as a liability on a
consolidated balance sheet of the Company and its Restricted Subsidiaries),
together with any discount, interest, fees, indemnities, penalties, recourse
obligations, expenses or other amounts representative of yield or interest
earned on such investment or otherwise in connection therewith, to the extent
that any of such items are, as of the date of determination, outstanding and
unpaid.
"A/R Subsidiary" shall mean a wholly-owned Restricted Subsidiary of the
Company that engages in no activities other than the purchase of accounts
receivable from other Restricted Subsidiaries of the Company and from the
Company and Permitted A/R Sale Transactions and any necessary related activities
and owns no assets other than accounts receivable so purchased (including Sale
Receivables), the proceeds of such accounts receivable, and such other assets as
are required in connection with Permitted A/R Sale Transactions, and which
Restricted Subsidiary shall be a Guarantor.
"Arranger" shall mean J.P. Morgan Securities Inc., as lead arranger and
sole bookrunner, and its successors.
-3-
"Assignment and Acceptance" is defined in Section 8.6(d).
"Available Canadian Commitment" shall mean at any date of determination
with respect to any Canadian Lender (after giving effect to the making and
payment of any Loans required on such date pursuant to Section 2.6(g)), the
lesser of (a) the excess, if any, of (i) the U.S. Dollar Equivalent of such
Canadian Lender's Canadian Commitment in effect on such date over (ii) the
aggregate Canadian Syndicated Loans of such Canadian Lender on such date and (b)
the Available U.S. Commitment of such Lender on such date.
"Available U.S. Commitment" shall mean at any date of determination
with respect to any Lender (after giving effect to the making and payment of any
Loans required on such date pursuant to Section 2.6(g)), an amount in U.S.
Dollars equal to the excess, of (a) the amount of such Lender's U.S. Commitment
in effect on such date over (b) the Aggregate Syndicated Outstandings of such
Lender on such date.
"BA Interest Period" shall mean, relative to any BA Rate Syndicated
Loan, the period beginning on (and including) the date on which such BA Rate
Syndicated Loan is made or continued to (but excluding) the date which is one,
two, three, or six months thereafter or such other period of time agreed to by
the Canadian Lenders, as the Canadian Borrower may elect under Section 2.6, and
each subsequent period commencing on the expiry of the immediately preceding BA
Interest Period and ending on the date one, two, three, or six months (or such
other period acceptable to the Canadian Borrower and the Canadian Lenders)
thereafter, as the Canadian Borrower may elect under Section 2.6, provided,
however, that (a) each BA Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business Day, and
(b) no BA Interest Period shall be permitted which would end after the
Termination Date.
"BA Rate" shall mean with respect to a BA Rate Syndicated Loan for the
relevant BA Interest Period, the sum of (a) the Applicable Margin plus (b) the
bid rate quoted by JPMCB Canada for its own acceptances for the relevant BA
Interest Period as of the first day of such BA Interest Period.
"BA Rate Syndicated Loan" shall mean any Syndicated Loan which bears
interest at the BA Rate.
"Bid-Option Absolute Rate" shall mean, with respect to any Absolute
Rate Bid-Option Loan, the Bid-Option Absolute Rate, as defined in Section
2.2(d)(ii)(E), that is offered for such Loan.
"Bid-Option Auction" shall mean a solicitation of Bid-Option Quotes
setting forth Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins,
as the case may be, pursuant to Section 2.2(b).
"Bid-Option Eurodollar Rate" shall mean the sum of (a) the Bid-Option
Eurodollar Rate Margin plus (b) the Eurodollar Base Rate.
"Bid-Option Eurodollar Rate Margin" shall mean, with respect to any
Eurodollar Rate Bid-Option Loan, the Bid-Option Eurodollar Rate Margin, as
defined in Section 2.2(d)(ii)(F), that is offered for such Loan.
-4-
"Bid-Option Interest Period" shall mean (a) with respect to each
Eurodollar Rate Bid Option Borrowing, the Eurodollar Rate Interest Period
applicable thereto, and (b) with respect to each Absolute Rate Bid Option
Borrowing, the period commencing on the date of such Borrowing and ending on the
date elected by the Company in the applicable Notice of Borrowing, which date
shall be not less than 15 days and not more than 180 days after the date of such
Bid-Option Loan; provided that:
(i) any such Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business day; and
(ii) no such Interest Period that would end after the
Termination Date shall be permitted.
"Bid-Option Loan" shall mean a Loan which is made by a Lender pursuant
to a Bid-Option Auction.
"Bid-Option Note" shall mean a promissory note of the Company in
substantially the form of Exhibit A hereto evidencing the obligation of the
Company to repay Bid-Option Loans, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor.
"Bid-Option Percentage" shall mean, with respect to any Lender, the
percentage of the aggregate outstanding principal amount of the Bid-Option Loans
of all the Lenders represented by the outstanding principal amount of the
Bid-Option Loans of such Lender.
"Bid-Option Quote" shall mean an offer by a Lender to make a Bid-Option
Loan in accordance with Section 2.2(d).
"Bid-Option Quote Request" shall mean a Bid-Option Quote Request in the
form referred to in Section 2.2(b).
"Borrowers" shall mean the Company and the Canadian Borrower.
"Borrowing" shall mean the aggregation of Advances made to the
Borrowers, or continuations and conversions of such Advances, made pursuant to
Article II on a single date and for a single Interest Period. A Borrowing may be
referred to for purposes of this Agreement by reference to the type of Loan
comprising the relating Borrowing, e.g., a "Floating Rate Borrowing" if such
Loans are Floating Rate Loans, a "Eurodollar Rate Syndicated Borrowing" if such
Loans are Eurodollar Rate Syndicated Loans, a "BA Rate Syndicated Borrowing" if
such Loans are BA Rate Syndicated Loans, an "Absolute Rate Bid-Option Borrowing"
if such Loans are Absolute Rate Bid-Option Loans, or a "Eurodollar Rate
Bid-Option Borrowing" if such Loans are Eurodollar Rate Bid-Option Loans.
Floating Rate Borrowings, BA Rate Syndicated Loans and Eurodollar Rate
Syndicated Borrowings may be similarly collectively referred to as "Syndicated
Borrowings", and Absolute Rate Bid-Option Borrowings and Eurodollar Rate
Bid-Option Borrowings may be collectively referred to as "Bid-Option
Borrowings".
"Business Day" shall mean (a) a day other than a Saturday, Sunday or
other day on which the Agent is not open to the public for carrying on
substantially all of its banking functions, (b) with respect to any Eurodollar
Rate Loan, a day which is both a Business Day and a day on which dealings in
U.S. Dollar deposits are carried out in the relevant interbank market and (c)
with respect to any BA Rate
-5-
Syndicated Loan, a day on which commercial banks are open for foreign exchange
business in Canada and dealings in Canadian Dollars are carried on in the
applicable offshore foreign exchange interbank market or other market in which
disbursement of or payment in Canadian Dollars will be made or received
hereunder.
"Canadian Borrower" shall mean Universal Forest Products Nova Scotia
ULC, an unlimited liability company organized under the laws of Nova Scotia, or
such other Restricted Subsidiary of the Company which (i) is organized under the
laws of Canada or any political subdivision thereof, (ii) becomes the Canadian
Borrower pursuant to the terms of Section 8.1(d), and (iii) is approved by the
Agent.
"Canadian Commitment" shall mean, as to any Canadian Lender at any
time, its obligation to make Canadian Syndicated Loans to the Canadian Borrower
under Section 2.1(b) in an aggregate U.S. Dollar amount not to exceed at any
time the amount set forth opposite such Lender's name on the signature pages
hereof under the heading "Canadian Commitment" or as otherwise established
pursuant to Section 8.6, as such amount may be modified from time to time
pursuant to the provisions hereof.
"Canadian Dollars" or "C$" shall mean the lawful currency of Canada.
"Canadian Lender" shall mean any Lender which has a Canadian
Commitment, provided that such Lender shall make its Canadian Loans through its
Applicable Lending Office designated on the signature pages hereto or otherwise
designated by such Lender from time to time as it Applicable Lending Office in
Canada.
"Canadian Prime Rate" shall mean a rate per annum equal to the sum of
(a) the greater of (i) the reference rate of interest (however designated) of
JPMCB Canada (which is not necessarily the lowest rate charged to any customer)
for determining interest chargeable by it on Canadian Dollar commercial loans
made in Canada or (ii) 1.0% above the bid rate quoted by JPMCB Canada for its
own acceptances from time to time for one month Canadian Dollar bankers'
acceptances having a face amount comparable to the amount of the Loan in respect
of which the applicable Canadian Prime Rate calculation is being made, plus (b)
1.25%, changing when and as said reference rate changes.
"Canadian Syndicated Loans" shall mean Syndicated Loans made to the
Canadian Borrower under Section 2.1(b).
"Capital Lease" of any Person shall mean any lease which, in accordance
with Generally Accepted Accounting Principles, is or should be capitalized on
the books of such Person.
"Capital Stock" shall mean (i) in the case of any corporation, all
capital stock and any securities exchangeable for or convertible into capital
stock and any warrants, rights or other options to purchase or otherwise acquire
capital stock or such securities or any other form of equity securities, (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distribution of assets of, the issuing
Person.
"Cash Equivalent" shall mean (i) cash in U.S. Dollars, (ii) cash in
Canadian Dollars, (iii) securities issued or directly and fully guaranteed or
insured by the United States government or any
-6-
agency or instrumentality thereof having maturities of not more than six months
from the date of acquisition, (iv) marketable direct obligations issued by any
state of the United States of America 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, (v) certificates of
deposit and eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any Lender or with any
domestic commercial bank having capital and surplus in excess of $250,000,000
and a Keefe Bank Watch Rating of "B" or better, (vi) repurchase obligations with
a term of not more than seven days for underlying securities of the types
described in clauses (iii), (iv), and (v) above entered into with any financial
institution meeting the qualifications specified in clause (v) above, (vii)
commercial paper having one of the two highest ratings obtained from Moody's or
S&P and in each case maturing within six months after the date of acquisition
and (viii) investments in money market funds which invest substantially all
their assets in securities of the type described in clauses (i) through (vii)
above.
"Change of Control" shall mean (i) the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 25% or more of the outstanding shares of
voting Capital Stock of the Company, other than any such acquisition by Peter
Secchia, Carroll M. Shoffner or any Person wholly owned and controlled, free and
clear of any Liens, by Peter Secchia and/or Carroll M. Shoffner; (ii) any Person
or two or more Persons acting in concert shall have acquired, by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to exercise,
directly or indirectly, a controlling influence over the management or policies
of the Company; (iii) Continuing Directors shall cease to constitute at least a
majority of the directors constituting the board of directors of the Company; or
(iv) the occurrence of any "Change of Control" or similar term as defined in any
agreement or instrument relating to the Senior Note Debt.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder.
"Commitments" shall mean the Canadian Commitments and the U.S.
Commitments.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for two or more Persons
of the amounts signified by such term for all such Persons determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles.
"Contingent Liabilities" of any Person shall mean, as of any date, all
obligations of such Person or of others for which such Person is contingently
liable, as obligor, guarantor, surety or in any other capacity, or in respect of
which obligations such Person assures a creditor against loss or agrees to take
any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including
without limitation all reimbursement obligations of such Person in respect of
any letters of credit, surety bonds or similar obligations and all obligations
of such Person to advance funds to, or to purchase assets, property or services
from, any other Person in order to maintain the financial condition of such
other Person.
"Continuing Directors" shall mean as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Effective
-7-
Date or (ii) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of
such Board at the time of such nomination or election.
"Default" shall mean any of the events or conditions described in
Section 6.1 which will become an Event of Default with notice or lapse of
time or both.
"Defaulting Lender" shall mean any Lender that fails to make available
to the Agent such Lender's Loans required to be made hereunder or shall have not
made a payment required to be made to the Agent hereunder. Once a Lender becomes
a Defaulting Lender, such Lender shall continue as a Defaulting Lender until
such time as such Defaulting Lender makes available to the Agent the amount of
such Defaulting Lender's Loans and all other amounts required to be paid to the
Agent pursuant to this Agreement.
"Documentation Agents" is defined in the first paragraph of this
Agreement.
"Disqualified Stock" shall mean any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part.
"Domestic Subsidiary" shall mean each present and future Restricted
Subsidiary of the Company which is not a Foreign Subsidiary.
"EBIT" shall mean, for any period, Net Income for such period plus all
amounts deducted in determining such Net Income on account of (a) Total Interest
Expense and (b) income taxes, and (c) any one-time non-cash charges related to
Financial Accounting Standards 141 or 142, all as determined for the Company and
its Restricted Subsidiaries on a consolidated basis in accordance with Generally
Accepted Accounting Principles.
"EBITDA" shall mean, for any period, EBIT for such period plus all
amounts deducted in determining such EBIT on account of depreciation or
amortization, all as determined for the Company and its Restricted Subsidiaries
or for the Company and its Subsidiaries, as the context may require, on a
consolidated basis in accordance with Generally Accepted Accounting Principles,
provided that all references in EBIT and all defined terms used therein to "the
Company and its Restricted Subsidiaries" shall be deemed references to "the
Company and its Subsidiaries" when determining EBITDA for the Company and its
Subsidiaries.
"Effective Date" shall mean the effective date specified in the final
paragraph of this Agreement.
"Environmental Laws" at any date shall mean all provisions of law,
statute, ordinances, rules, regulations, judgments, writs, injunctions, decrees,
orders, awards and standards which are applicable to the Company or any
Subsidiary and promulgated by the government of the United States of America or
any foreign government or by any state, province, municipality or other
political subdivision thereof or therein or by any court, agency,
instrumentality, regulatory authority or commission of any of the foregoing
concerning the protection of, or regulating the discharge of substances into,
the environment.
-8-
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations thereunder.
"ERISA Affiliate" shall mean, with respect to any Person, any trade or
business (whether or not incorporated) which, together with such Person or any
Subsidiary of such Person, would be treated as a single employer under Section
414 of the Code.
"Eurodollar Base Rate" applicable to any Eurodollar Interest Period
shall mean, the rate per annum obtained by dividing (a) the per annum rate of
interest determined by the Agent at which deposits in U.S. Dollars for such
Eurodollar Interest Period and in an aggregate amount comparable to (i) in the
case of Eurodollar Rate Syndicated Loans, the amount of the related Eurodollar
Rate Syndicated Loan to be made by the Agent in its capacity as a Lender
hereunder and (ii) in the case of Eurodollar Rate Bid-Option Loans, the
aggregate amount of the Eurodollar Rate Bid-Option Borrowing set forth in the
related Bid-Option Quote Request, based on 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 Agent from time to time for purposes of providing
quotations of interest rates applicable to U.S. Dollar deposits in the London
interbank market), at approximately 11:00 a.m. London time, on the second
Business Day prior to the first day of such Eurodollar Interest Period by (b) an
amount equal to one minus the stated maximum rate (expressed as a decimal) of
all reserve requirements including, without limitation, any marginal, emergency,
supplemental, special or other reserves, that is specified on the first day of
such Eurodollar Interest Period by the Board of Governors of the Federal Reserve
System (or any successor agency thereto) or any other governmental authority
(including any nation or government, any political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government) having jurisdiction with respect
thereto, for determining the maximum reserve requirement with respect to
eurocurrency funding (currently referred to as "Eurodollar liabilities" in
Regulation D of such Board) maintained by a member bank of such System or
otherwise with respect to determining reserves or similar amounts; all as
conclusively determined by the Agent, absent manifest error, such sum to be
rounded up, if necessary, to the nearest whole multiple of one sixteenth of one
percent (1/16 of 1%).
"Eurodollar Interest Period" shall mean, with respect to any Eurodollar
Rate Syndicated Loan, the period commencing on the day such Eurodollar Rate
Syndicated Loan is made or converted to a Eurodollar Rate Syndicated Loan and
ending on the date one, two, three or six months thereafter or such other period
of time agreed to by the Lenders, as the Company may elect under Section 2.6 or
2.9, and each subsequent period commencing on the last day of the immediately
preceding Eurodollar Interest Period and ending on the date one, two, three or
six months thereafter, as the Company may elect under Section 2.6 or 2.9, and
with respect to any Eurodollar Rate Bid-Option Loan, the period commencing on
the date of such Eurodollar Rate Bid-Option Loan and ending on a date between
one month and twelve months thereafter, as the Company may elect in the Notice
of Bid-Option Loan, provided, however, that (a) any Eurodollar Interest Period
which commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month, (b) each Eurodollar Interest Period which would otherwise end on
a day which is not a Business Day shall end on the next succeeding Business Day
or, if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day, and (c) no Eurodollar Interest Period
which would end after the Termination Date shall be permitted.
-9-
"Eurodollar Rate Loan" shall mean any Eurodollar Rate Bid-Option Loan
or Eurodollar Rate Syndicated Loan.
"Eurodollar Rate Bid-Option Loan" shall mean a Bid-Option Loan which
pursuant to the applicable Notice of Bid-Option Loan is made at the Bid-Option
Eurodollar Rate.
"Eurodollar Rate Syndicated Loan" shall mean any Syndicated Loan which
bears interest at the Syndicated Eurodollar Rate.
"Event of Default" shall mean any of the events or conditions described
in Section 6.1.
"Existing Letters of Credit" shall mean the letters of credit
outstanding on the Effective Date and listed on Schedule 1 hereto.
"Federal Funds Rate" shall mean, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Contract" of a Person shall mean (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Hedging Agreement.
"Fixed Rate Loan" shall mean any Eurodollar Rate Syndicated Loan, any
BA Rate Syndicated Loan, or any Bid-Option Loan.
"Floating Rate" shall mean for any day, a rate per annum equal to (a)
with respect to Loans to the Company, the U.S. Prime Rate for such day, and (b)
with respect to Loans to the Canadian Borrower, the Canadian Prime Rate for such
day, in each case changing when and as the U.S Prime Rate or the Canadian Prime
Rate changes, as applicable.
"Floating Rate Loan" shall mean any Syndicated Loan which bears
interest at the Floating Rate.
"Foreign Subsidiary" shall mean any Restricted Subsidiary incorporated
or formed in any jurisdiction other than any State of the United States of
America.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles in effect from time to time and applied on a
basis consistent with that reflected in the financial statements referred to in
Section 4.6.
"Guaranties" shall mean the guaranties entered into by each of the
Guarantors for the benefit of the Agent and the Lenders pursuant to Section
5.1(f) in substantially the form of Exhibit B hereto or other form approved by
the Agent, as amended or modified from time to time.
-10-
"Guarantor" shall mean (a) with respect to the Company, each present
and future Domestic Subsidiary of the Company which has executed a Guaranty
pursuant to this Agreement, and each Person otherwise entering into a Guaranty
from time to time, which Guaranty has not been released pursuant to Section
2.13, and (b) with respect to the Canadian Borrower, the Company, each present
and future Domestic Subsidiary of the Borrowers which has executed a Guaranty
pursuant to this Agreement, and each Person otherwise entering into a Guaranty
from time to time, which Guaranty has not been released pursuant to Section
2.13.
"Indebtedness" of any Person shall mean, as of any date, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person as lessee under any Capital Lease, (c) the unpaid purchase price for
goods, property or services acquired by such Person, except for accounts payable
and other accrued liabilities arising in the ordinary course of business which
are not materially past due, (d) all obligations of such Person to purchase
goods, property or services where payment therefor is required regardless of
whether delivery of such goods or property or the performance of such services
is ever made or tendered (generally referred to as "take or pay contracts"),
other than obligations incurred in the ordinary course of business, (e) all
obligations of such Person in respect of any Financial Contract (valued in an
amount equal to the highest termination payment, if any, that would be payable
by such Person upon termination for any reason on the date of determination),
(f) to the extent not included in the foregoing, obligations and liabilities
which would be classified as part of Total Debt, and (g) all obligations of
others similar in character to those described in clauses (a) through (f) of
this definition for which such Person is contingently liable, as obligor,
guarantor, surety or in any other capacity, or in respect of which obligations
such Person assures a creditor against loss or agrees to take any action to
prevent any such loss (other than endorsements of negotiable instruments for
collection in the ordinary course of business), including without limitation all
reimbursement obligations of such Person in respect of letters of credit, surety
bonds or similar obligations and all obligations of such Person to advance funds
to, or to purchase assets, property or services from, any other Person in order
to maintain the financial condition of such other Person.
"Intercreditor Agreement" shall mean the Intercreditor Agreement dated
as of November 13, 1998 among the Creditors (as defined therein) of the Company
and JPMCB (as successor by merger to Bank One, NA, which was successor by merger
with Bank One, Michigan, formerly known as NBD Bank), as Collateral Agent, as
amended or modified from time to time, under which agreement the Lenders, the
Agent and the Senior Note Holders agree to share equally and ratably in any
proceeds realized from the enforcement of any guarantees from the Company and
any Subsidiaries of the Company and any pledges of any Capital Stock of any
Foreign Subsidiaries which guarantee or secure, as the case may be, the Lender
Obligations, the Senior Note Debt and the other Subject Obligations, provided
that such Intercreditor Agreement, and any amendments or modifications thereto,
shall be in form and substance acceptable to the Required Lenders and the Agent.
"Interest Coverage Ratio" shall mean, as of the last day of any fiscal
quarter of the Company, the ratio of (a) EBIT to (b) Total Interest Expense, in
each case as calculated for the four consecutive fiscal quarters then ending,
all as determined in accordance with Generally Accepted Accounting Principles.
"Interest Payment Date" shall mean (a) with respect to any Eurodollar
Rate Loan, BA Rate Syndicated Loan, or Bid-Option Loan, the last day of each
Interest Period with respect to such Eurodollar Rate Loan, BA Rate Syndicated
Loan, or Bid-Option Loan and, in the case of any Interest Period exceeding three
months, those days that occur during such Interest Period at intervals of three
months after the first day of such Interest Period, and (b) in all other cases,
the last Business Day of each March, June, September and
-11-
December occurring after the date hereof, commencing with the first such
Business Day occurring after the date of this Agreement.
"Interest Period" shall mean any Eurodollar Interest Period, BA
Interest Period, or Bid-Option Interest Period.
"Investment" of a Person shall mean any loan, advance, extension of
credit (other than accounts receivable arising in the ordinary course of
business on terms customary in the trade) or contribution of capital by such
Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or
other securities owned by such Person; any deposit accounts and certificates of
deposit owned by such Person; and structured notes, derivative financial
instruments and other similar instruments or contracts owned by such Person.
"Invitation for Bid-Option Quotes" shall mean an invitation for
Bid-Option Quotes in the form referred to in Section 2.2(c).
"JPMCB" shall mean JPMorgan Chase Bank, N.A., a national banking
association, in its individual capacity, and its successors.
"JPMCB Canada" shall mean JPMorgan Chase Bank, N.A., Toronto Branch and
any other successor or assignee thereof which is a branch or Affiliate of JPMCB,
and its successors.
"Lender Obligations" shall mean all indebtedness, obligations and
liabilities, whether now owing or hereafter arising, direct, indirect,
contingent or otherwise, of the Borrowers to the Agent or any Lender pursuant to
the Loan Documents.
"Letters of Credit" shall mean (i) each Existing Letter of Credit
having a stated expiry date not later than the fifth Business Day before the
Termination Date and (ii) each standby letter of credit having a stated expiry
date not later than one year from the issuance thereof and in no event after the
fifth Business Day before the Termination Date issued by the Agent hereunder on
behalf of the Lenders for the account of the Company under an application and
related documentation acceptable to the Agent requiring, among other things,
immediate reimbursement by the Company to the Agent in respect of all drafts or
other demand for payment honored thereunder and all expenses paid or incurred by
the Agent relative thereto.
"Letter of Credit Advances" shall mean each Existing Letter of Credit
and each issuance of a Letter of Credit under Section 2.6 made pursuant to
Section 2.1 in which each Lender acquires a pro rata risk participation pursuant
to Section 2.6(f).
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(b).
"Lien" shall mean any pledge, assignment, deed of trust, hypothecation,
mortgage, security interest, conditional sale or title retaining contract, or
any other type of lien, charge, encumbrance or other similar claim or right,
provided that the filing of financing statements solely with respect to, or
other lien or claim solely on, any interest in Sale Receivables sold or
otherwise transferred in a Permitted A/R Sale Transaction shall not be
considered a Lien.
"Loan" shall mean any Syndicated Loan, Swingline Loan, or any
Bid-Option Loan, as the context may require.
-12-
"Loan Documents" shall mean this Agreement, the Notes, the Letter of
Credit Documents, the Guaranties, the Pledge Agreements, the Intercreditor
Agreement, any Rate Hedging Agreements between the Company or any of its
Subsidiaries and any Lender and any other agreement, instrument or document
executed at any time in connection with this Agreement.
"Material Adverse Effect" shall mean (i) a material adverse effect on
the property, business, operations, financial condition, liabilities, prospects
or capitalization of the Company and its Restricted Subsidiaries, taken as a
whole or (ii) a material adverse effect on the ability of a Borrower or any
Guarantor to perform its obligations under the Loan Documents.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Income" shall mean, for any period, the net income (or loss) of
the Company and its Restricted Subsidiaries on a consolidated basis for such
period taken as a single accounting period, determined in accordance with
Generally Accepted Accounting Principles; provided that in determining Net
Income there shall be excluded, without duplication: (a) the income of any
Person (other than a Restricted Subsidiary of the Company) in which any Person
other than the Company or any of its Restricted Subsidiaries has a joint
interest or partnership interest or other ownership interest, except to the
extent of the amount of dividends or other distributions actually paid to the
Company or any of its Restricted Subsidiaries by such Person during such period,
(b) the loss of any Person (other than a Restricted Subsidiary of the Company)
in which any Person other than the Company or any of its Restricted Subsidiaries
has a joint interest or partnership interest or other ownership interest, except
to the extent such loss is funded by the Company or any of its Restricted
Subsidiaries during such period, (c) the income of any Person accrued prior to
the date it becomes a Restricted Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Restricted Subsidiaries or that
Person's assets are acquired by the Company or any of its Restricted
Subsidiaries, (d) the proceeds of any insurance policy, other than proceeds of
business interruption insurance to the extent included in net income under
Generally Accepted Accounting Principles and not excluded by any other exclusion
under this definition of Net Income, (e) gains or non-cash losses from the sale,
exchange, transfer or other disposition of property or assets not in the
ordinary course of business of the Company and its Restricted Subsidiaries and
any other income of the Company and its Restricted Subsidiaries which is not
from their continuing operations, and related tax effects in accordance with
Generally Accepted Accounting Principles, (f) any other extraordinary or
non-recurring gains or non-cash losses of the Company or its Restricted
Subsidiaries, and related tax effects in accordance with Generally Accepted
Accounting Principles, and (g) the income of any Restricted Subsidiary of the
Company to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or of any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary.
"Net Mark-to-Market Exposure" of a Person shall mean, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Hedging Agreements. "Unrealized losses"
means the fair market value of the cost to such Person of replacing such Rate
Hedging Agreement as of the date of determination (assuming the Rate Hedging
Agreement were to be terminated as of that date), and "unrealized profits" means
the fair market value of the gain to such Person of replacing such Rate Hedging
Agreement as of the date of determination (assuming such Rate Hedging Agreement
were to be terminated as of that date).
-13-
"Net Worth - Restricted Subsidiaries" shall mean, as of any date, the
amount of any capital stock, paid in capital and similar equity accounts plus
(or minus in the case of a deficit) the capital surplus and retained earnings of
the Company and the Restricted Subsidiaries and the amount of any foreign
currency translation adjustment account shown as a capital account of the
Company and its Restricted Subsidiaries, all on a consolidated basis in
accordance with Generally Accepted Accounting Principles.
"Net Worth - All Subsidiaries" shall mean, as of any date, the amount
of any capital stock, paid in capital and similar equity accounts plus (or minus
in the case of a deficit) the capital surplus and retained earnings of the
Company and its Subsidiaries and the amount of any foreign currency translation
adjustment account shown as a capital account of the Company and its
Subsidiaries, all on a consolidated basis in accordance with Generally Accepted
Accounting Principles.
"Notes" shall mean the Revolving Credit Notes, the Swingline Loan Note
and the Bid-Option Notes.
"Notice of Bid-Option Loan" shall have the meaning set forth in Section
2.2(f).
"Obligors" shall mean the Borrowers and the Guarantors.
"Overdue Rate" shall mean (a) in respect of principal of Floating Rate
Loans, a rate per annum that is equal to the sum of two percent (2%) per annum
plus the Floating Rate, (b) in respect of principal of Fixed Rate Loans, a rate
per annum that is equal to the sum of two percent (2%) per annum plus the per
annum rate in effect thereon until the end of the then current Interest Period
for such Loan and, thereafter, a rate per annum that is equal to the sum of two
percent (2%) per annum plus the Floating Rate, and (c) in respect of other
amounts payable by a Borrower hereunder (other than interest), a per annum rate
that is equal to the sum of two percent (2%) per annum plus the Floating Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Liens" shall mean Liens permitted by Section 5.2(d) hereof.
"Permitted A/R Sale Transaction" shall mean any transaction, or series
of transactions, under which Sale Receivables owned by the A/R Subsidiary are
sold or transferred to a third-party purchaser in exchange for consideration, in
cash or its equivalent, in an amount equal to the fair market value thereof, and
under which the A/R Subsidiary, the Company and/or another Restricted Subsidiary
shall continue to service the Sale Receivables as agent or sub-agent on behalf
of the purchaser thereof.
"Person" shall include an individual, a corporation, a limited
liability company, an association, a partnership, a trust or estate, a joint
stock company, an unincorporated organization, a joint venture, a trade or
business (whether or not incorporated), a government (foreign or domestic) and
any agency or political subdivision thereof, or any other entity.
"Plan" shall mean, with respect to any Person, any pension plan (other
than a Multiemployer Plan) subject to Title IV of ERISA or to the minimum
funding standards of Section 412 of the Code which has been established or
maintained by such Person, any Subsidiary of such Person or any
-14-
ERISA Affiliate, or by any other Person if such Person, any Subsidiary of such
Person or any ERISA Affiliate could have liability with respect to such pension
plan.
"Pledge Agreements" shall mean each pledge agreement entered into by
the Company or any of its Restricted Subsidiaries at any time for the benefit of
the Agent and the Lenders pursuant to this Agreement, in form and substance
satisfactory to the Agent, under which any of the Capital Stock of any Foreign
Subsidiary is pledged to the Agent for the benefit of the Agent and the Lenders
and subject to any Intercreditor Agreement, as amended or modified from time to
time.
"Prior Credit Agreement" shall mean that certain Credit Agreement,
dated as of November 25, 2002, among the Company, the lenders party thereto, and
JPMCB, as amended.
"Pro Rata Share" shall mean, for each Lender, the ratio of such
Lender's Commitments to the aggregate Commitments of all Lenders, provided that
(a) with respect to U.S. Syndicated Loans, Letter of Credit Advances and
Swingline Loans and facility fees with respect to the U.S. Commitments and
Section 2.1(e), Pro Rata Share shall mean, for each Lender, the ratio such
Lender's U.S. Commitment bears to the aggregate U.S. Commitments of all Lenders,
and (b) with respect to Canadian Syndicated Loans, Pro Rata Share shall mean,
for each Lender, the ratio such Lender's Canadian Commitment bears to the
aggregate Canadian Commitments of all Canadian Lenders.
"Prohibited Transaction" shall mean any non-exempt transaction
involving any Plan which is proscribed by Section 406 of ERISA or Section 4975
of the Code.
"Property" of a Person shall mean any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Rate Hedging Agreement" shall mean any transaction (including an
agreement with respect thereto) now existing or hereafter entered by the Company
or any of its Restricted Subsidiaries which is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Reportable Event" shall mean a reportable event as described in
Section 4043(b) of ERISA including those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by the
PBGC under ERISA.
"Required Canadian Lenders" shall mean Canadian Lenders holding at
least 51% of the aggregate Canadian Commitments then outstanding (or at least
51% of the Canadian Syndicated Loans if the Canadian Commitments have been
terminated).
"Required Lenders" shall mean Lenders holding at least 51% of the
aggregate U.S. Commitments then outstanding (or at least 51% of the Advances if
the Commitments have been terminated).
"Required Percentage" is defined in Section 2.13.
-15-
"Revolving Credit Note" shall mean any promissory note of the Company
evidencing the Syndicated Loans, in substantially the form annexed hereto as
Exhibit C, as amended or modified from time to time and together with any
promissory note or notes issued in exchange or replacement therefor.
"Restricted Subsidiaries" shall mean all Subsidiaries of the Company
other than Unrestricted Subsidiaries.
"Sale Receivables" shall mean, collectively (a) accounts receivable
that have been originated by the Company or a Restricted Subsidiary and
transferred to the A/R Subsidiary for sale pursuant to a Permitted A/R Sale
Transaction; (b) all proceeds of such accounts receivable; and (c) any and all
instruments, contract rights, chattel paper, or other general intangibles
relating to or arising out of such accounts receivable.
"Same Day Funds" shall mean (a) with respect to disbursements and
payments in U.S. Dollars, immediately available funds, and (b) with respect to
disbursements and payments in any Canadian Dollars, same day or other funds as
may be determined by the Agent to be customary in the place of disbursement or
payment for the settlement of international banking transactions in Canadian
Dollars.
"S&P" shall mean Standard and Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc.
"Senior Note Debt" shall mean the Subject Obligations under the 6.69%
Series 1998-A Senior Notes, Tranche A, due December 21, 2005 issued by the
Company pursuant to the Note Agreement among the Company and the holders of such
notes dated as of December 1, 1998, the 6.98% Series 1998-A Senior Notes,
Tranche B, due December 21, 2008 issued by the Company pursuant to the Note
Agreement among the Company and the holders of such notes dated as of December
1, 1998, the 6.98% Series 1998-A Senior Notes, Tranche C, due December 21, 2008
issued by the Company pursuant to the Note Agreement among the Company and the
holders of such notes dated as of December 1, 1998, 5.63% Series 2002-A Senior
Notes Tranche A due December 18, 2009 issued by the Company pursuant to the Note
Agreement among the Company and the holders of such notes dated as of December
18, 2002, the 6.16% Series 2002-B Senior Notes Tranche B due December 18, 2012
issued by the Company pursuant to the Note Agreement among the Company and the
holders of such notes dated as of December 18, 2002 and each "Successor Note
Agreement", as that term is defined in the Intercreditor Agreement, provided
such Subject Obligations are permitted under this Agreement.
"Senior Note Holders" shall mean the holders of the Senior Note Debt.
"Significant Subsidiary" shall mean any one or more Subsidiaries which,
if considered in the aggregate as a single Subsidiary, would be a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X under the Securities
Exchange Act of 1934.
"Subject Obligations" is defined in the Intercreditor Agreement.
"Subsidiary" of any Person shall mean any other Person (whether now
existing or hereafter organized or acquired) in which (other than directors'
qualifying shares required by law) at least a majority of the Capital Stock of
each class having ordinary voting power or analogous rights (other than Capital
Stock which have such power or right only by reason of the happening of a
contingency), at the time as of which any determination is being made, are
owned, beneficially and of record, by such Person or by one or
-16-
more of the other Subsidiaries of such Person or by any combination thereof.
Unless otherwise specified, reference to "Subsidiary" shall mean a Subsidiary of
the Company.
"Swingline Facility" shall have the meaning specified in Section
2.1(c).
"Swingline Loan" shall mean any loan evidenced by a Swingline Note and
made by the Agent to the Company pursuant to Section 2.1(c).
"Swingline Note" shall mean any promissory note of the Company
evidencing the Swingline Loans in substantially the form of Exhibit D hereto, as
amended or modified from time to time and together with any promissory note or
notes issued in exchange or replacement therefor.
"Syndicated Advance" shall mean any Syndicated Loan or any Letter of
Credit Advance.
"Syndicated Eurodollar Rate" shall mean, with respect to any Eurodollar
Rate Syndicated Loan for any Eurodollar Rate Interest Period or portion thereof,
the per annum rate that is equal to the sum of (a) the Applicable Margin, plus
(b) the Eurodollar Base Rate; which Syndicated Eurodollar Rate shall change
simultaneously with any change in such Applicable Margin.
"Syndicated Loan" shall mean any borrowing under Section 2.6 evidenced
by the Revolving Credit Notes and made pursuant to Section 2.1.
"Syndication Agent" is defined in the first paragraph of this
Agreement.
"Termination Date" shall mean the earlier to occur of (a) the date five
years after the date hereof and (b) the date on which the Commitments shall be
terminated pursuant to Section 2.4 or 6.2.
"Total Adjusted Capitalization" shall mean, as of any date, the sum of
Net Worth - Restricted Subsidiaries and Total Seasonally Adjusted Debt as of
such date.
"Total Debt" as of any date, shall mean, without duplication, all of
the following for the Company and its Restricted Subsidiaries on a consolidated
basis: (a) all Indebtedness for borrowed money and similar monetary obligations
evidenced by bonds, notes, debentures, acceptances, Capital Lease obligations or
otherwise, (b) all liabilities secured by any Lien existing on property owned or
acquired by the Company or any Restricted Subsidiary subject thereto, whether or
not the liability secured thereby shall have been assumed; (c) all reimbursement
obligations under outstanding letters of credit (to the extent an underlying
obligation is not accrued or included in Indebtedness), bankers' acceptances or
similar instruments in respect of drafts which (i) may be presented or (ii) have
been presented and have not yet been paid and are not included in clause (a)
above; (d) Net Mark-to-Market Exposure; and (e) all guarantees (other than
guarantees issued by the Borrowers in favor of Restricted Subsidiaries to
support routine trade accounts payable and operating lease obligations and
excluding guaranties by Restricted Subsidiaries of the Company of the Senior
Note Debt) and other Contingent Liabilities relating to indebtedness,
obligations or liabilities of any Person of the type described in the foregoing
clauses (a), (b), (c) and (d).
"Total Interest Expense" shall mean, for any period, total interest and
related expense (including, without limitation, that portion of any Capital
Lease obligation attributable to interest expense in conformity with Generally
Accepted Accounting Principles, amortization of debt discount, all capitalized
interest, the interest portion of any deferred payment obligations, all
commissions, discounts and other fees and charges owed with respect to letter of
credit and bankers acceptance financing, the net costs and net
-17-
payments under any interest rate hedging, cap or similar agreement or
arrangement, prepayment charges, agency fees, administrative fees, commitment
fees and capitalized transaction costs allocated to interest expense) paid,
payable or accrued during such period, without duplication for any other period,
with respect to all outstanding Indebtedness of the Company and its Restricted
Subsidiaries, all as determined for the Company and its Restricted Subsidiaries
on a consolidated basis for such period in accordance with Generally Accepted
Accounting Principles.
"Total Seasonally Adjusted Debt" shall mean, as of the end of any
fiscal quarter of the Company, the following appropriate amount for such fiscal
quarter end: (a) for any fiscal quarter ending in March or June, 85% of Total
Debt as of the end of such fiscal quarter, and (b) for any fiscal quarter ending
in September or December, 115% of Total Debt as of the end of such fiscal
quarter.
"Transferee" shall have the meaning specified in Section 8.6(i).
"Unfunded Benefit Liabilities" shall mean, with respect to any Plan as
of any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
"U.S. Commitment" shall mean, as to any U.S. Lender at any time, its
obligation to make Syndicated Loans to the Company under Section 2.1(a), and
risk participate in Swingline Loans and Letters of Credit, in an aggregate U.S.
Dollar Amount not to exceed at any time outstanding the U.S. Dollar amount set
forth opposite such Lender's name on the signature pages hereof under the
heading "U.S. Commitment" or as otherwise established pursuant to Section 8.6,
as such amount may be modified from time to time pursuant to the applicable
provisions hereof.
"U.S. Dollar Equivalent" shall mean, with respect to any currency, at
any date, the equivalent thereof in U.S. Dollars, calculated on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the
Administrative Agent for such other currency at 11:00 a.m., London time, on the
date on or as of which such amount is to be determined.
"U.S. Dollars" and "$" shall mean the lawful money of the United States
of America.
"U.S. Lender" shall mean any Lender which has a U.S. Commitment.
"U.S. Prime Rate" shall mean a rate per annum equal to the greater of
(a) the prime rate of interest announced or established from time to time by
JPMCB or its parent (which is not necessarily the lowest rate charged to any
customer), and (b) the sum of the Federal Funds Effective Rate for such day plus
1/2% per annum, changing when and as said prime rate or Federal Funds Effective
Rate changes.
"U.S. Syndicated Loans" shall mean Syndicated Loans made to the Company
under Section 2.1(a).
"Unrestricted Subsidiary" shall mean any Subsidiary designated by the
Company as an Unrestricted Subsidiary in accordance with Section 2.15.
1.2 Other Definitions; Rules of Construction. As used herein, the terms
"Lenders", "Company", and "this Agreement" shall have the respective meanings
ascribed thereto in the introductory paragraph of this Agreement. Such terms,
together with the other terms defined in Section 1.1, shall include both the
singular and the plural forms thereof and shall be construed accordingly. Use of
the terms "herein", "hereof", and "hereunder" shall be deemed references to this
Agreement in its entirety and not to the Section
-18-
or clause in which such term appears. References to "Sections" and "subsections"
shall be to Sections and subsections, respectively, of this Agreement unless
otherwise specifically provided.
1.3 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall (unless otherwise disclosed to the Lenders in writing at the
time of delivery thereof in the manner described in subsection (b) below) be
prepared, in accordance with Generally Accepted Accounting Principles (subject,
in the case of financial statements which are not fiscal year end statements, to
the absence of footnotes and year-end audit adjustments); provided that, if the
Company notifies the Agent that it wishes to amend any covenant in Article V to
eliminate the effect of any change in Generally Accepted Accounting Principles
(or if the Agent notifies the Company that the Required Lenders wish to amend
Article V for such purpose), then such Borrower's compliance with such covenants
shall be determined on the basis of Generally Accepted Accounting Principles in
effect immediately before the relevant change in Generally Accepted Accounting
Principles became effective until either such notice is withdrawn or such
covenant or any such defined term is amended in a manner satisfactory to such
Borrower and the Required Lenders. Except as otherwise expressly provided
herein, all references to a time of day shall be references to Chicago, Illinois
time. Notwithstanding anything herein, in any financial statements of the
Company or in Generally Accepted Accounting Principles to the contrary, for
purposes of calculating and determining compliance with the financial covenants
in Sections 5.2(a) and (b), the Applicable Margin, compliance with Section 2.15
or compliance with any other financial covenants herein, including defined terms
used therein, no Unrestricted Subsidiary shall be consolidated with the Company
and its other Subsidiaries (provided that an Unrestricted Subsidiary may be
consolidated with one or more other Unrestricted Subsidiaries) and all income
(except to the extent received by the Company in cash), liabilities (except to
the extent the Company or any Restricted Subsidiary is liable therefor, whether
directly or indirectly, contingently or otherwise) and assets of each
Unrestricted Subsidiary, and all Investments of the Company or any Restricted
Subsidiary in any Unrestricted Subsidiary, shall be excluded from all such
calculations and determinations thereunder.
(b) The Company shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 5.1(d)
hereof (i) a description in reasonable detail of any material variation between
the application or other modification of accounting principles employed in the
preparation of such statement and the application or other modification of
accounting principles employed in the preparation of the immediately prior
annual or quarterly financial statements as to which no objection has been made
in accordance with the last sentence of subsection (a) above and (ii) reasonable
estimates of the difference between such statements arising as a consequence
thereof.
(c) To enable the ready and consistent determination of compliance with
the covenants set forth in Section 5.2 hereof, the Company will not change the
last day of its fiscal year from the last Saturday of December of each year, or
the last days of the first three fiscal quarters in each of its fiscal years
from the last Saturday in March, June and September of each year, respectively.
-19-
ARTICLE II.
THE COMMITMENTS, THE SWINGLINE FACILITY AND THE ADVANCES
2.1 Commitments of the Lenders and the Swingline Facility.
(a) U.S. Syndicated Advances. Each U.S. Lender agrees, for
itself only, subject to the terms and conditions of this Agreement, to make U.S.
Syndicated Loans to the Company pursuant to Section 2.6 and Section 3.3 and to
participate in Letter of Credit Advances to the Company pursuant to Section 2.6
and Swingline Loans from time to time from and including the Effective Date to
but excluding the Termination Date not to exceed in aggregate principal amount
at any time outstanding the amount determined pursuant to Section 2.1(d).
(b) Canadian Syndicated Loans. Each Canadian Lender agrees,
for itself only, subject to the terms and conditions of this Agreement, to make
Canadian Syndicated Loans to the Canadian Borrower pursuant to Section 2.6 and
Section 3.3 and to participate in Letter of Credit Advances to the Canadian
Borrower from time to time from and including the Effective Date to but
excluding the Termination Date not to exceed in aggregate principal amount at
any time outstanding the amount determined pursuant to Section 2.1(d).
(c) Swingline Loans. (i) The Company may request the Agent to
make, and the Agent may, in its sole discretion, make Swingline Loans to the
Company from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate principal amount not
to exceed at any time the lesser of (A) $30,000,000 (the "Swingline Facility")
and (B) the aggregate amount of U.S. Syndicated Advances that could be but are
not borrowed as of such date; provided, that the Agent shall not make a
Swingline Loan after it has received written notice from a Lender or the Company
referring to this Agreement and describing a Default or Event of Default and
stating that such notice is a "notice of default" and such Default or Event of
Default shall be continuing. Each U.S. Lender's U.S. Commitment shall be deemed
utilized by an amount equal to such Lender's Pro Rata Share of each Swingline
Loan for purposes of determining the amount of U.S. Syndicated Advances required
to be made by such Lender. Swingline Loans shall bear interest at a rate agreed
to by the Agent and the Company, provided that Swingline Loans shall bear
interest at the rate applicable to Floating Rate Loans at any time the Swingline
Loans are refunded by Floating Rate Loans or the U.S. Lenders are required to
purchase participations therein under Section 2.1(c)(iii). Within the limits of
the Swingline Facility, so long as the Agent, in its sole discretion, elects to
make Swingline Loans, the Company may borrow and reborrow under this Section
2.1(c)(i).
(ii) The Agent may at any time in its sole and absolute
discretion require that any Swingline Loan be refunded by a Floating Rate
Borrowing from the U.S. Lenders, and upon written notice thereof by the Agent to
such Lenders and the Company, the Company shall be deemed to have requested a
Floating Rate Borrowing in an amount equal to the amount of such Swingline Loan,
and such Floating Rate Borrowing shall be made to refund such Swing Line Loan.
Each such Lender shall be absolutely and unconditionally obligated to fund its
Pro Rata Share of such Floating Rate Borrowing or, if applicable, purchase a
participating interest in the Swingline Loans pursuant to Section 2.1(c)(iii)
and such obligation shall not be affected by any circumstance, including,
without limitation, (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender has or may have against the Agent, or the Borrowers or
any of their Subsidiaries or anyone else for any reason whatsoever; (B) the
occurrence or continuance of a Default or an Event of Default, subject to
Section 2.1(c)(iii); (C) any Material Adverse Effect; (D) any breach of any Loan
Document by any other Lender, the Borrowers, or
-20-
any Guarantor; or (E) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing (including without limitation the
Borrowers' failure to satisfy any conditions contained in Article II or any
other provision of this Agreement).
(iii) If Floating Rate Loans may not be made by the U.S.
Lenders as described in Section 2.1(c)(ii) due to any Event of Default pursuant
to Section 6.1(i) or if the U.S. Lenders are otherwise legally prohibited from
making Floating Rate Loans, then effective on the date each such Floating Rate
Loan would otherwise have been made, each U.S. Lender severally agrees that it
shall unconditionally and irrevocably, without regard to the occurrence of any
Default or Event of Default or any other circumstances, in lieu of deemed
disbursement of Loans, to the extent of such Lender's Commitment, purchase a
participating interest in the Swingline Loans by paying its participation
percentage thereof. Each such Lender will immediately transfer to the Agent, in
Same Day Funds, the amount of its participation. After such payment to the
Agent, each Lender shall share based on its Pro Rata Share in any interest which
accrues thereon and in all repayments thereof. If and to the extent that any
such Lender shall not have so made the amount of such participating interest
available to the Agent, such Lender and the Company severally agree to pay to
the Agent forthwith on demand such amount together with interest thereon, for
each day from the date of demand by the Agent until the date such amount is paid
to the Agent, at (A) in the case of the Company, the interest rate specified
above and (B) in the case of such Lender, the Federal Funds Rate for the first
five days after the date of demand by the Agent and thereafter at the interest
rate specified above.
(d) Limitation on Amount of Advances. Notwithstanding anything
in this Agreement to the contrary, (i) the U.S. Dollar Equivalent of the
aggregate principal amount of the U.S. Syndicated Loans, the Swingline Loans and
the Letters of Credit at any time outstanding to the Company shall not exceed
the aggregate U.S. Commitments of all Lenders as of the date any such Advance is
made, provided, however, that the U.S. Dollar Equivalent of the aggregate
Letters of Credit outstanding at any time shall not exceed $65,000,000 and the
U.S. Dollar Equivalent of the aggregate of Swingline Loans at any time
outstanding shall not exceed $30,000,000, (ii) the U.S. Dollar Equivalent of the
Pro Rata Share of the aggregate U.S. Syndicated Loans, the Swingline Loans and
the Letters of Credit of any U.S. Lender shall not exceed the U.S. Commitment of
such U.S. Lender, (iii) the U.S. Dollar Equivalent of the aggregate Canadian
Syndicated Loans of any Canadian Lender shall not exceed the Canadian Commitment
of such Canadian Lender, (iv) the U.S. Dollar Equivalent of the aggregate
Canadian Syndicated Loans of all Canadian Lenders will not exceed the amount of
the aggregate Canadian Commitments that the Canadian Borrower has designated to
the Agent as activated (the "Activated Aggregate Canadian Commitments"), and the
Canadian Borrower can activate or de-activate the Canadian Commitments at any
time provided that any such activation or de-activation shall be in increments
of $5,000,000 and shall not exceed $30,000,000 in aggregate amount, shall be
effective ten Business Days after notification by the Canadian Borrower to the
Agent and shall not reduce the Activated Aggregate Canadian Commitments below
the U.S. Dollar Equivalent of the aggregate Canadian Syndicated Loans of all
Canadian Lenders, and (v) the aggregate principal amount of the U.S. Syndicated
Loans, the Swingline Loans and the Letters of Credit will not exceed the
difference of the aggregate U.S. Commitments minus the amount of the Activated
Aggregate Canadian Commitments. As of the Effective Date, the Activated
Aggregate Canadian Commitments are $15,000,000.
(e) Multicurrency Participation. Each U.S. Lender shall be
deemed to have unconditionally and irrevocably purchased from each Lender in its
capacity as a Canadian Lender, without recourse or warranty, an undivided
interest in and participation in each Canadian Syndicated Loan ratably in
accordance with such Lender's Pro Rata Share and each Lender in its capacity as
a Canadian Lender shall be deemed to have unconditionally and irrevocably
purchased from each U.S.
-21-
Lender, without recourse or warranty, an undivided interest in and participation
in each U.S. Syndicated Loan ratably in accordance with such Lender's Pro Rata
Share, provided that payments for all such participations shall not be made
until required by the terms of the following sentence of this Section 2.1(e).
Upon the occurrence of an Event of Default under Sections 6.1(a) or (i), (i) all
Canadian Syndicated Loans shall be converted to and re-denominated in U.S.
Dollars equal to the U.S. Dollar Equivalent of each such Canadian Syndicated
Loan determined as of the date of such conversion, (ii) each of the U.S. Lenders
shall pay to the applicable Canadian Lenders not later than two (2) Business
Days following a request for payment from such Lender, in U.S. Dollars, an
amount equal to the undivided interest in and participation in the Canadian
Syndicated Loan purchased by such U.S. Lender pursuant to this Section 2.1(e),
and (iii) each of the Canadian Lenders shall pay to the applicable U.S. Lenders
not later than two (2) Business Days following a request for payment from such
Lender, in U.S. Dollars, an amount equal to the undivided interest in and
participation in the U.S. Syndicated Loan purchased by such Canadian Lenders
pursuant to this Section 2.1(e), it being the intent of the Lenders that
following such equalization payments, each Lender shall hold its Pro Rata Share
of the aggregate Syndicated Loans, Letters of Credit and Swingline Loans.
2.2 Bid-Option Loans.
(a) The Bid-Option. From the Effective Date to but excluding
the Termination Date, the Company may, as set forth in this Section 2.2, request
the Lenders to make offers to make Bid-Option Loans to the Company.
Notwithstanding anything herein to the contrary, no more than five requests for
Bid-Option Loans in the aggregate may be requested by the Company in any month.
Each Lender may, but shall have no obligation to, make such offers and the
Company may, but shall have no obligation to, accept any such offers, in the
manner set forth in this Section 2.2; furthermore, each Lender may limit the
aggregate amount of Bid-Option Loans when quoting rates for more than one
Bid-Option Interest Period in any Bid-Option Quote, provided that such
limitation shall not be less than the minimum amounts required hereunder for
Bid-Option Loans and the Company may choose among the Bid-Option Loans if such
limitation is imposed; provided, that the aggregate outstanding principal amount
of Bid-Option Loans shall not at any time exceed the lesser of (i) the excess of
(A) the aggregate amount of the U.S. Commitments over (B) the sum of the
aggregate outstanding principal amount of Syndicated Advances and Swingline
Loans or (ii) $75,000,000;
(b) Bid-Option Quote Request. When the Company wishes to
request offers to make Bid-Option Loans under this Section 2.2, it shall
transmit to the Agent by telex or telecopy a Bid-Option Quote Request
substantially in the form of Exhibit E hereto so as to be received no later than
11:00 a.m. Chicago time (i) on the Business Day next preceding the date of the
Loan proposed therein, in the case of a Bid-Option Auction for Absolute Rate
Bid-Option Loans, or (ii) the fourth Business Day next preceding the date of the
Loan proposed therein, in the case of a Bid-Option Auction for Eurodollar Rate
Bid-Option Loans specifying:
(A) the proposed date of the Bid-Option Loan, which
shall be a Business Day;
(B) the aggregate amount of such Bid-Option Loan,
which shall be a minimum of $3,000,000 or a larger multiple of $1,000,000;
(C) whether the Borrowing is to be an Absolute Rate
Bid-Option Borrowing or a Eurodollar Rate Bid-Option Borrowing; and
-22-
(D) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest Period.
The Company may request offers to make Bid-Option Loans for more than one
Bid-Option Interest Period in a single Bid-Option Quote Request.
(c) Invitation for Bid-Option Quotes. Promptly upon receipt of
a Bid-Option Quote Request, the Agent shall send to the Lenders by telecopy (or
telephone promptly confirmed by telecopy) an Invitation for Bid-Option Quotes
substantially in the form of Exhibit F hereto, which shall constitute an
invitation by the Company to each such Lender to submit Bid-Option Quotes
offering to make the Bid-Option Loans to which such Bid-Option Quote Request
relates in accordance with this Section 2.2.
(d) Submission and Contents of Bid-Option Quotes. (i) Each
Lender may submit a Bid-Option Quote containing an offer or offers to make
Bid-Option Loans in response to any Invitation for Bid-Option Quotes. Each
Bid-Option Quote must comply with the requirements of this subsection (d) and
must be submitted to the Agent by telecopy (or by telephone promptly confirmed
by telecopy) at its office referred to in Section 8.2 not later than (A) 9:00
a.m. Chicago time on the proposed date of the Borrowing, in the case of a
Bid-Option Auction for Absolute Rate Bid-Option Loans, or (B) 9:00 a.m. Chicago
time on the third Business Day prior to the proposed date of the Borrowing, in
the case of a Bid-Option Auction for Eurodollar Rate Bid-Option Loans; provided
that Bid-Option Quotes submitted by the Agent (or any Affiliate of the Agent) in
the capacity of a Lender may be submitted, and may only be submitted, if the
Agent or such Affiliate notifies the Company of the terms of the offer or offers
contained therein not later than (A) 8:45 a.m. Chicago time on the proposed date
of such Borrowing, in the case of a Bid-Option Auction for Absolute Rate
Bid-Option Loans or (B) 8:45 a.m. Chicago time on the third Business Day prior
to the proposed date of the Borrowing, in the case of a Bid-Option Auction for
Eurodollar Rate Bid-Option Loans. Subject to Section 3.8 and Article VI, any
Bid-Option Quote so made shall be irrevocable except with the written consent of
the Agent given on the instructions of the Company.
(ii) Each Bid-Option Quote shall be in substantially
the form of Exhibit G hereto, but may be submitted to the Agent by telephone
with prompt confirmation by delivery to the Agent of such written Bid-Option
Quote, and shall in any case specify:
(A) the proposed date of the Borrowing;
(B) the principal amount of the Bid-Option
Loan for which each such offer is being made, which principal amount (x) must be
in a minimum of $3,000,000 or a larger multiple of $1,000,000, and (y) may not
exceed the principal amount of the Bid-Option Loans for which offers were
requested;
(C) whether the Bid-Option Loans for which
the offers are made are Absolute Rate Bid-Option Loans or Eurodollar Rate
Bid-Option Loans, which must match the type of Borrowing stated in the related
Invitation for Bid-Option Quotes;
(D) the Interest Period(s) for which each
such Bid-Option Absolute Rate or Bid-Option Eurodollar Rate Margin, as the case
may be, is offered;
(E) in the case of a Bid-Option Auction for
Absolute Rate Bid-Option Loans, the rate of interest per annum (rounded to the
nearest 1/1000 of 1%) (the "Bid-Option Absolute Rate") offered for each such
Bid-Option Loan;
-23-
(F) in the case of a Bid-Option Auction for
Eurodollar Rate Bid-Option Loans, the applicable margin, which may be positive
or negative (the "Bid-Option Eurodollar Rate Margin") expressed as a percentage
(rounded to the nearest 1/1000 of 1%), offered for each such Bid-Option Loan;
and
(G) the identity of the quoting Lender.
(iii) Any Bid-Option Quote shall be disregarded if
it:
(A) is not substantially in the form of
Exhibit G hereto (or submitted by telephone to the Agent with prompt written
confirmation to follow) or does not specify all of the information required by
clause (ii) of this subsection (d);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in addition
to those set forth in the applicable Invitation for Bid-Option Quotes; or
(D) arrives after the time set forth in
Section 2.2(d)(i);
provided that a Bid-Option Quote shall not be disregarded pursuant to clause (B)
or (C) above solely because it contains an indication that an allocation that
might otherwise be made to it pursuant to Section 2.2(g) would be unacceptable.
The Agent shall notify the Company of any disregarded Bid-Option Quote.
(e) Notice to Company. The Agent shall promptly notify the
Company of the terms of any Bid-Option Quote submitted by a Lender that is in
accordance with Section 2.2(d). Any Bid-Option Quote not made in accordance with
Section 2.2(d) shall be disregarded by the Agent. The Agent's notice to the
Company shall specify (i) the aggregate principal amount of Bid-Option Loans for
which offers have been received for each Bid-Option Interest Period specified in
the related Bid-Option Quote Request, and (ii) the respective principal amounts
and respective Bid-Option Absolute Rates or Bid-Option Eurodollar Rate Margins,
as the case may be, so offered.
(f) Acceptance and Notice by Company. Not later than 11:00
a.m. Chicago time on (i) the proposed date of a Borrowing, in the case of a
Bid-Option Auction for Absolute Rate Bid-Option Loans or (ii) the third Business
Day prior to the proposed date of the Borrowing, in the case of a Bid-Option
Borrowing for Eurodollar Rate Bid-Option Loans, the Company shall notify the
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to subsection (e) of this Section and the Agent shall, promptly upon
receiving such notice from the Company, notify each Lender whose Bid-Option
Quote has been accepted. In the case of acceptance, such notice (a "Notice of
Bid-Option Loan") shall specify the aggregate principal amount of offers for the
applicable Interest Period(s) that have been accepted. The Company may accept
any Bid-Option Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Bid-Option
Loan may not exceed the applicable amount set forth in the related Bid-Option
Quote Request for the applicable Bid-Option Interest Period;
(ii) the principal amount of each Bid-Option Loan
must be $3,000,000 or a larger multiple of $1,000,000;
-24-
(iii) acceptance of offers may only be made on the
basis of ascending Bid-Option Absolute Rates or Bid-Option Eurodollar Rate
Margins, as the case may be provided, however, to the extent necessary to comply
with clause (i) above and notwithstanding any indication in any such Bid-Option
Quote that an allocation of the type contemplated under Section 2.2(g) would be
unacceptable, the Borrower may accept Bid-Option Quotes at the same Bid-Option
Absolute Rates or Bid-Option Eurodollar Rate Margins, as the case may be, in
part, which acceptance, in the case of multiple Bid-Option Quotes, shall be made
pro rata in accordance with the amount of each such Bid-Option Quote; and
(iv) the Company may not accept any offer that is
described in Section 2.2(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Agent. If offers are made by two or more
Lenders with the same Bid-Option Absolute Rates or Bid-Option Eurodollar Rate
Margins, as the case may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest Period,
the principal amount of Bid-Option Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Lenders as nearly as
possible (in such multiples, not greater than $100,000, as the Agent may deem
appropriate) in proportion to the aggregate principal amount of such offers.
Determinations by the Agent of the amounts of Bid-Option Loans shall be
conclusive in the absence of manifest error.
2.3 Effect on Commitments. Notwithstanding anything in this Agreement
to the contrary, the sum of the aggregate principal amount of all Syndicated
Loans, all Letter of Credit Advances (being the maximum amount available to be
drawn under the related Letters of Credit plus the amount of any draws under
Letters of Credit that have not been reimbursed), all Swingline Loans and all
Bid-Option Loans shall not at any time exceed the aggregate amount of the U.S.
Commitments of all Lenders. Each Lender's obligation to make its Pro Rata Share
of any subsequently requested Syndicated Loan or Letter of Credit Advance shall
not be affected by the making by such Lender of a Bid-Option Loan, and the
Lender which has outstanding Bid-Option Loans may be obligated to exceed its
Commitment, provided that, as stated above, the aggregate principal amount of
all Syndicated Loans, all Letters of Credit Advances, all Swingline Loans and
all Bid-Option Loans shall not at any time exceed the aggregate amount of the
U.S. Commitments of all Lenders.
2.4 Termination and Reduction of Commitments. (a) The Company shall
have the right to terminate or reduce the U.S. Commitments at any time and from
time to time at its option and the Canadian Borrower shall have the right to
terminate or reduce the Canadian Commitments at any time and from time to time
at its option, provided that (i) the relevant Borrower shall give three days'
prior written notice of such termination or reduction to the Agent specifying
the amount and effective date thereof, (ii) each partial reduction of the U.S.
Commitments shall be in a minimum amount of $10,000,000 and in an integral
multiple of $1,000,000 thereafter and shall reduce the U.S. Commitments of all
of the U.S. Lenders proportionately in accordance with their respective U.S.
Commitment, (iii) each partial reduction of the Canadian Commitments shall be in
a minimum amount of $5,000,000 and in an integral multiple of $1,000,000
thereafter and shall reduce the Canadian Commitments of all of the Canadian
Lenders proportionately in accordance with their respective Canadian Commitment,
(iv) no such termination or reduction shall be permitted with respect to any
portion of the Commitments as to which a request for a Borrowing pursuant to
Section 2.6 is then pending, (v) the U.S. Commitments may not be terminated if
any U.S. Syndicated Advances are then outstanding and may not be reduced below
the principal amount of U.S. Syndicated Advances then outstanding and (vi) the
Canadian Commitments may not be terminated if any
-25-
Canadian Syndicated Loans are then outstanding and may not be reduced below the
principal amount of Canadian Syndicated Loans then outstanding.
The Commitments or any portion thereof terminated or reduced pursuant
to this Section 2.4(a), whether optional or mandatory, may not be reinstated.
The Company shall immediately prepay the U.S. Syndicated Advances to the extent
they exceed the reduced aggregate U.S. Commitments pursuant hereto and the
Canadian Borrower shall immediately prepay the Canadian Syndicated Loans to the
extent they exceed the reduced aggregate Canadian Commitments pursuant hereto,
and any reduction hereunder shall reduce the applicable Commitment amount of
each Lender proportionately in accordance with the respective applicable
Commitment amounts for each such Lender set forth on the signature pages hereof
next to the name of each such Lender.
(b) For purposes of this Agreement, a Letter of Credit Advance
(i) shall be deemed outstanding in an amount equal to the sum of the maximum
amount available to be drawn under the related Letter of Credit on or after the
date of determination and on or before the stated expiry date thereof plus the
amount of any draws under such Letter of Credit that have not been reimbursed as
provided in Section 3.3 and (ii) shall be deemed outstanding at all times on and
before such stated expiry date or such earlier date on which all amounts
available to be drawn under such Letter of Credit have been fully drawn, and
thereafter until all related reimbursement obligations have been paid pursuant
to Section 3.3. As provided in Section 3.3, upon each payment made by the Agent
in respect of any draft or other demand for payment under any Letter of Credit,
the amount of any Letter of Credit Advance outstanding immediately prior to such
payment shall be automatically reduced by the amount of each Syndicated Loan
deemed advanced in respect of the related reimbursement obligation of the
Company.
2.5 Fees. (a) The Company agrees to pay to the U.S. Lenders a facility
fee on the amount of the U.S. Commitments, whether used or unused, for the
period from the Effective Date to but excluding the Termination Date, at a rate
equal to the Applicable Margin per annum. Accrued facility fees shall be payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing on the first such Business Day occurring after the date of
this Agreement, and on the Termination Date.
(b) The Company agrees (i) to pay to the U.S. Lenders a fee at
a rate equal to the Applicable Margin per annum, on the maximum amount available
to be drawn from time to time under each Letter of Credit for the period from
and including the date of issuance of such Letter of Credit (or from and
including the Effective Date in the case of Existing Letters of Credit) to and
including the termination of such Letter of Credit, which fees shall be payable
quarterly in arrears on the last Business Day of each March, June, September and
December and on the Termination Date, based upon the Applicable Margin at the
time each such quarterly installment is paid, and (ii) to pay an additional fee
to the Agent for its own account computed at the rate of 0.125% per annum of
such maximum amount for such period, which fees shall be payable quarterly in
arrears on the last Business Day of each March, June, September and December and
on the Termination Date. The Company further agrees to pay to the Agent, on
demand, such other customary administrative fees, charges and expenses of the
Agent in respect of the issuance, negotiation, acceptance, amendment, transfer
and payment of such Letter of Credit or otherwise payable pursuant to the
application and related documentation under which such Letter of Credit is
issued.
(c) For each day on which the aggregate principal amount of
the outstanding Advances is greater than 50% of the aggregate amount of the U.S.
Commitments, the Company further agrees to pay to the Agent for the account of
each Lender a usage fee on the principal amount of each Advance for each such
day at a per annum rate equal to the Applicable Margin. Accrued usage fees shall
-26-
be payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing on the first such Business Day occurring
after the date of this Agreement, and on the Termination Date.
(d) The Borrowers agree to pay to the Agent and the Arranger
such fees for their services as Agent and Arranger under this Agreement in such
amounts as may from time to time be agreed upon by the Borrowers, the Agent, and
the Arranger.
2.6 Disbursement of Syndicated Advances. (a) A Borrower shall give the
Agent notice of its request for each Syndicated Advance in substantially the
form of Exhibit H hereto not later than 10:00 a.m. Chicago time (i) three
Business Days prior to the date such Advance is requested to be made if such
Borrowing is to be made as a Eurodollar Rate Syndicated Loan, (ii) three
Business Days prior to the day such Advance is requested to be made if such
Borrowing is to be made as a BA Rate Syndicated Loan, (iii) two Business Days
prior to the date any Letter of Credit Advance is requested to be made and (iv)
on the date such Syndicated Loan is requested to be made in all other cases,
which notice shall specify whether a Eurodollar Rate Syndicated Loan, Floating
Rate Loan, BA Rate Syndicated Loan, or a Letter of Credit Advance is requested
and, in the case of each requested Eurodollar Rate Syndicated Loan or BA Rate
Syndicated Loan, the Interest Period to be initially applicable to such Loan.
The Company shall give the Agent notice of its request for each Swingline Loan
in such form requested by the Agent not later than 11:00 a.m. Chicago time on
the same Business Day such Swingline Loan is requested to be made. The Agent, on
the same day any such notice is given, shall provide notice of each such
requested U.S. Syndicated Loan to each U.S. Lender and of each such Canadian
Syndicated Loan to each Canadian Lender. Subject to the terms and conditions of
this Agreement, the proceeds of each such requested Syndicated Loan and
Swingline Loan shall be made available to each Borrower by depositing the
proceeds thereof, in Same Day Funds, in an account maintained and designated by
such Borrower at the applicable Agent Payment Office. Subject to the terms and
conditions of this Agreement, the Agent shall, on the date any Letter of Credit
Advance is requested to be made, issue the related Letter of Credit on behalf of
the Lenders for the account of the Company; provided, that the Agent shall not
issue, and shall not be required to issue, any Letter of Credit Advance after it
has received written notice from a Lender or the Company referring to this
Agreement and describing a Default or Event of Default and stating that such
notice is a "notice of default" and such Default or Event of Default shall be
continuing. Notwithstanding anything herein to the contrary, the Agent may
decline to issue any requested Letter of Credit on the basis that the
beneficiary, the purpose of issuance or the terms or the conditions of drawing
are unacceptable to it based upon any legal, policy or ethical concerns in its
reasonable discretion. Each U.S. Syndicated Loan shall be made in U.S. Dollars
from the U.S. Lenders in accordance with their Pro Rata Share and shall be
Eurodollar Rate Syndicated Loans or Floating Rate Loans. Each Canadian
Syndicated Loan shall be made in Canadian Dollars from the Canadian Lenders in
accordance with their Pro Rata Share and shall be BA Rate Syndicated Loans or
Floating Rate Loans.
(b) Subject to Section 2.6(g), each U.S. Lender, on the date
any U.S. Syndicated Loan is requested to be made, shall make its Pro Rata Share
of such U.S. Syndicated Loan available in Same Day Funds for disbursement to the
Company pursuant to the terms and conditions of this Agreement at the applicable
Agent Payment Office. Unless the Agent shall have received notice from any
Lender prior to the date such U.S. Syndicated Loan is requested to be made under
this Section 2.6 that such Lender will not make available to the Agent such U.S.
Lender's Pro Rata Share of such Loan, the Agent may assume that such Lender has
made such portion available to the Agent on the date such Loan is requested to
be made in accordance with this Section 2.6. If and to the extent such U.S.
Lender shall not have so made such Pro Rata Share available to the Agent, the
Agent may (but shall not be obligated to) make such amount available to the
Company, and such U.S. Lender agrees to pay to the Agent forthwith on demand
such
-27-
amount together with interest thereon, for each day from the date such amount is
made available to the Company by the Agent until the date such amount is repaid
to the Agent, at a rate per annum equal to the Federal Funds Rate then in effect
for the first three Business Days and at the Floating Rate thereafter. If such
U.S. Lender shall pay such amount to the Agent together with interest, such
amount so paid shall constitute a U.S. Syndicated Loan by such Lender as part of
the related Borrowing for purposes of this Agreement. The failure of any Lender
to make its Pro Rata Share of any such Borrowing available to the Agent shall
not relieve any other Lender of its obligation to make available its Pro Rata
Share of such Loan on the date such Loan is requested to be made, but no Lender
shall be responsible for failure of any other Lender to make such Pro Rata Share
available to the Agent on the date of any such Loan.
(c) Each Canadian Lender, on the date any Canadian Syndicated
Loan is requested to be made, shall make such Canadian Syndicated Loan available
in Same Day Funds for disbursement to the Canadian Borrower pursuant to the
terms and conditions of this Agreement at the applicable Agent Payment Office.
Unless the Agent shall have received notice from a Canadian Lender prior to the
date such Canadian Syndicated Loan is requested to be made under this Section
2.6 that such Canadian Lender will not make available to the Agent such Canadian
Syndicated Loan, the Agent may assume that such Canadian Lender has made such
Canadian Syndicated Loan to the Agent on the date such Loan is requested to be
made in accordance with this Section 2.6. If and to the extent a Canadian Lender
shall not have so made such Canadian Syndicated Loan available to the Agent, the
Agent may (but shall not be obligated to) make such Loan available to the
Canadian Borrower, and such Canadian Lender agrees to pay to the Agent forthwith
on demand such amount together with interest thereon, for each day from the date
such amount is made available to the Canadian Borrower by the Agent until the
date such amount is repaid to the Agent, at a rate per annum equal to the cost
of funds rate determined by the Agent for the first three Business Days and
thereafter at the Floating Rate. If a Canadian Lender shall pay such amount to
the Agent together with interest, such amount so paid shall constitute a
Canadian Syndicated Loan by such Canadian Lender as part of the related
Borrowing for purposes of this Agreement.
(d) All Syndicated Loans shall be evidenced by the Revolving
Credit Notes and all Swingline Loans shall be evidenced by the Swingline Note,
and all such Loans shall be due and payable and bear interest as provided in
Article III. Each Lender is hereby authorized by the Borrowers to record on the
schedule attached to the Notes, or in its books and records, the date, amount
and type of each Loan and the duration of the related Interest Period (if
applicable), the amount of each payment or prepayment of principal thereon, and
the other information provided for on such schedule, which schedule or books and
records, as the case may be, shall constitute prima facie evidence of the
information so recorded, provided, however, that failure of any Lender to
record, or any error in recording, any such information shall not relieve a
Borrower of its obligation to repay the outstanding principal amount of the
Loans, all accrued interest thereon and other amounts payable with respect
thereto in accordance with the terms of the Notes and this Agreement. Subject to
the terms and conditions of this Agreement, the Company may borrow U.S.
Syndicated Loans and Swingline Loans under this Section 2.6 and under Section
3.3, prepay Syndicated Loans and Swingline Loans pursuant to Section 3.1 and
reborrow Syndicated Loans and Swingline Loans under this Section 2.6 and under
Section 3.3. Subject to the terms and conditions of this Agreement, the Canadian
Borrower may borrow Canadian Syndicated Loans under this Section 2.6, prepay
Canadian Syndicated Loans pursuant to Section 3.1 and reborrow Canadian
Syndicated Loans under this Section 2.6.
(e) All Bid-Option Loans shall be in U.S. Dollars and shall be
disbursed directly by the Lender making such Bid-Option Loan to the Company by
1:30 p.m. Chicago time on the date such Bid-Option Loan is requested to be made
via wire transfer in Same Day Funds to JPMCB, 611
-28-
Woodward Avenue, Detroit, Michigan 48226, ABA Number 072000326, Reference:
Universal Forest Products, Inc. confirm to Agency Administration, or as
otherwise directed by the Company.
(f) Nothing in this Agreement shall be construed to require or
authorize any Lender to issue any Letter of Credit, it being recognized that the
Agent has the sole obligation under this Agreement to issue Letters of Credit on
behalf of the Lenders, and the Commitment of each Lender with respect to Letter
of Credit Advances is expressly conditioned upon the Agent's performance of such
obligations. Upon such issuance by the Agent (or on the Effective Date in the
case of the Existing Letters of Credit), each Lender shall automatically acquire
a risk participation interest in such Letter of Credit Advance based on its Pro
Rata Share. If the Agent shall honor a draft or other demand for payment
presented or made under any Letter of Credit, the Agent shall provide notice
thereof to each Lender on the date such draft or demand is honored unless the
applicable Borrower shall have satisfied its reimbursement obligation under
Section 3.3 by payment to the Agent on such date. Each Lender, on such date,
shall make its Pro Rata Share of the amount paid by the Agent available in Same
Day Funds at the applicable Agent Payment Office for the account of the Agent.
If and to the extent such Lender shall not have made such Pro Rata Share
available to the Agent, such Lender and the applicable Borrower severally agree
to pay to the Agent forthwith on demand such amount together with interest
thereon, for each day from the date such amount was paid by the Agent until such
amount is so made available to the Agent at a per annum rate equal to the
Federal Funds Rate. If such Lender shall pay such amount to the Agent together
with such interest, such amount so paid shall constitute a Syndicated Loan by
such Lender as part of the Advance disbursed in respect of the reimbursement
obligation of the applicable Borrower under Section 3.3 for purposes of this
Agreement. The failure of any Lender to make its Pro Rata Share of any such
amount paid by the Agent available to the Agent shall not relieve any other
Lender of its obligation to make available its Pro Rata Portion of such amount,
but no Lender shall be responsible for failure of any other Lender to make such
Pro Rata Portion available to the Agent.
(g) If on any proposed date of an Advance the Canadian
Borrower has requested Canadian Syndicated Loans (the "Requested Canadian
Syndicated Loans"), (i) the U.S. Dollar Equivalent of the aggregate principal
amount of the Requested Canadian Syndicated Loans exceeds the Aggregate
Available Canadian Commitments on such date (before giving effect to the making
and payment of any Loans required to be made pursuant to this clause (g) on such
date) and (ii) the U.S. Dollar Equivalent of the amount of such excess is less
than or equal to the Aggregate Available U.S. Commitments of all Canadian
Lenders (before giving effect to the making and payment of any Loans pursuant to
this clause (g) on such date), each U.S. Lender shall make a U.S. Syndicated
Loan to the Company on such date, and the proceeds of such Loans shall be
simultaneously applied to repay outstanding U.S. Syndicated Loans of the
Canadian Lenders, in amounts such that, after giving effect to (1) such
borrowings and repayments and (2) the borrowing from the Canadian Lenders of the
Requested Canadian Syndicated Loans, the Aggregate Syndicated Outstandings of
each Lender will equal (as nearly as possible) its Pro Rata Share. To effect
such borrowings and repayments, (x) not later than 10:00 a.m., Chicago time, on
such date, the proceeds of such U.S. Syndicated Loans shall be made available by
each U.S. Lender to the Agent at its applicable Agent Payment Office in Same Day
Funds and the Agent shall apply the proceeds of such U.S. Syndicated Loans
toward repayment of outstanding U.S. Syndicated Loans of the Canadian Lenders
and (y) concurrently with the repayment of such outstanding U.S. Syndicated
Loans of such Canadian Lender on such date, (1) such Canadian Lenders shall, in
accordance with the applicable provisions hereof, make the Canadian Syndicated
Loans in an aggregate amount equal to the amount so requested (but not in any
event greater than the amount allowed under Section 2.1(d)) after giving effect
to the making and repayment of any Loans on such date and (2) the relevant
Borrower shall pay to the Agent for the account of the Lenders whose Loans to
such Borrower are paid on such date pursuant to this clause (g) all interest
accrued on the amounts repaid to the date of such
-29-
repayment, together with any amounts otherwise payable in connection with such
repayment. If any borrowing of U.S. Syndicated Loans is required pursuant to
this clause (g), the Company shall notify the Agent in the manner provided for
U.S. Syndicated Loans in Section 2.6(a).
2.7 Conditions for First Disbursement. The obligation of each Lender to
make its first Advance hereunder is subject to receipt by each Lender and the
Agent of the following documents and completion of the following matters, in
form and substance reasonably satisfactory to the Agent:
(a) Charter Documents. Certificates of recent date of the
appropriate authority or official of each Obligor's respective state or province
of organization listing all charter documents of each Obligor, on file in that
office and certifying as to the good standing and corporate existence of such
Obligor, together with copies of such charter documents of such Obligor,
certified as of a recent date by such authority or official and certified as
true and correct as of the Effective Date by a duly authorized officer of such
Obligor, respectively, as well as any other information required by Section 326
of the USA PATRIOT Act or necessary for the Agent or any Lender to verify the
identity of each Borrower as required by Section 326 of the USA PATRIOT Act;
(b) By-Laws and Corporate Authorizations. Copies of the
by-laws of each Obligor together with all authorizing resolutions and evidence
of other corporate and other action taken by such Obligor to authorize the
execution, delivery and performance by each Obligor of the Loan Documents to
which it is a party and the consummation by each Obligor of the transactions
contemplated hereby or thereby, certified as true and correct as of the
Effective Date by a duly authorized officer of each Obligor, respectively;
(c) Incumbency Certificate. Certificates of incumbency of each
Obligor containing, and attesting to the genuineness of, the signatures of those
officers authorized to act on behalf of each Obligor in connection with the Loan
Documents to which it is a party and the consummation by each Obligor of the
transactions contemplated hereby, certified as true and correct as of the
Effective Date by a duly authorized officer of each Obligor;
(d) Legal Opinion. The favorable written opinions of U.S. and
Canadian counsel for the Obligors in the form of Exhibit I attached hereto;
(e) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorizations, declarations, registrations
or filings, if any, required on the part of the Obligors in connection with the
execution, delivery and performance of the Loan Documents or the transactions
contemplated hereby or as a condition to the legality, validity or
enforceability of the Loan Documents, certified as true and correct and in full
force and effect as of the Effective Date by a duly authorized officer of the
Obligors, or, if none are required, a certificate of such officer(s) to that
effect;
(f) Covenant Compliance Certificate. A covenant compliance
certificate in the form of Exhibit J attached hereto from the chief financial
officer or treasurer of the Company;
(g) Solvency Certificate. A solvency certificate in the form
of Exhibit K attached hereto from the chief financial officer or treasurer of
the Company;
(h) Intercreditor Agreement Acknowledgment. An acknowledgment
to the Intercreditor Agreement in the form attached as Exhibit A-1 to the
Intercreditor Agreement executed by the
-30-
Agent for the Lenders, and each Lender hereby authorizes the Agent to sign
such acknowledgment on its behalf;
(i) Obligations under Prior Credit Agreement. Simultaneously
with disbursement of the first Advance hereunder, payment in full of all
principal of all promissory notes issued pursuant to the Prior Credit Agreement
and all accrued interest thereon through the Effective Date, together with
payment in full of all other indebtedness under the Prior Credit Agreement,
including without limitation the payment of all commitment and facility fees
accrued through the Effective Date under the Prior Credit Agreement, and on the
Effective Date all commitments to lend under the Prior Credit Agreement shall
terminate, and all parties hereto acknowledge and agree that this Agreement
replaces and refinances the Prior Credit Agreement and is a "Successor Bank
Credit Agreement" under the Intercreditor Agreement;
(j) Other Loan Documents. Executed copies of each of the
Notes, the Guaranties and Pledge Agreements, executed by each party thereto,
together with all original stock certificates, stock powers, legal opinions and
other documents required by the Agent in connection therewith;
(k) Due Diligence. Satisfactory results of all due diligence
required by the Lenders, including without limitation a review of the Company's
Indebtedness and the Company's actual and potential litigation claims against
the Company and its Restricted Subsidiaries, including without limitation a
review of liability and insurance coverage; and
(l) Miscellaneous. Such other certificates, documents and
closing conditions as may be reasonably requested by the Agent, including
without limitation the receipt of interim consolidated financial statements of
the Company for each quarterly period ended subsequent to the date of the most
recent fiscal year end and the payment of all fees and expenses due as of
closing.
2.8 Further Conditions for Disbursement. The obligation of each Lender
and of the Agent to make any Advance (including its first Advance), or any
continuation or conversion under Section 2.9, is further subject to the
satisfaction of the following conditions precedent:
(a) The representations and warranties contained in Article IV
hereof and in any other Loan Document shall be true and correct in all material
respects on and as of the date such Advance is made, continued or converted
(both before and after such Advance is made, continued or converted) as if such
representations and warranties were made on and as of such date; and
(b) No Event of Default and no Default shall exist or shall
have occurred and be continuing on the date such Advance is made, continued or
converted (whether before or after such Advance is made, continued or
converted);
(c) In the case of any Letter of Credit Advance, at least two
Business Days prior to the date such Letter of Credit is to be issued, the
Company shall have delivered to the Agent an application for the related Letter
of Credit and other related documentation requested by and acceptable to the
Agent appropriately completed and duly executed on behalf of the Company.
Each Borrower shall be deemed to have made a representation and warranty to the
Lenders at the time of the making of, and the continuation or conversion of,
each Advance made to such Borrower to the effects set forth in clauses (a) and
(b) of this Section 2.8. For purposes of this Section 2.8, the representations
and
-31-
warranties contained in Section 4.6 hereof shall be deemed made with respect
to the most recent financial statements delivered pursuant to Section
5.1(d)(iii).
2.9 Subsequent Elections as to Borrowings. The Company may elect (a) to
continue a Eurodollar Rate Syndicated Borrowing of one type, or a portion
thereof, as a Eurodollar Rate Syndicated Borrowing of the then existing type, or
(b) may elect to convert a Eurodollar Rate Syndicated Borrowing, or a portion
thereof, to a Eurodollar Rate Syndicated Borrowing of another type or (c) elect
to convert a Floating Rate Borrowing, or a portion thereof, to a Eurodollar Rate
Syndicated Borrowing, and the Canadian Borrower may elect (i) to continue a BA
Rate Borrowing of one type, or a portion thereof, as a BA Rate Borrowing of the
then existing type, or (ii) may elect to convert a BA Rate Borrowing, or a
portion thereof, to a BA Rate Borrowing of another type or (iii) elect to
convert a Floating Rate Borrowing, or a portion thereof, to a BA Rate Borrowing,
in each case by giving notice thereof to the Agent in substantially the form of
Exhibit L hereto not later than 10:00 a.m. Chicago time (A) three Business Days
prior to the date any such continuation of or conversion to a Eurodollar Rate
Syndicated Borrowing is to be effective, (B) three Business Days prior to the
date any such continuation of or conversion to a BA Rate Borrowing is to be
effective, and (C) the date such continuation or conversion is to be effective
in all other cases, provided that an outstanding Eurodollar Rate Syndicated
Borrowing and BA Rate Syndicated Loan may only be converted on the last day of
the then current Interest Period with respect to such Borrowing unless the
Company has paid break funding costs as set forth in Section 3.9, and provided,
further, if a continuation of a Borrowing as, or a conversion of a Borrowing to,
a Fixed Rate Borrowing is requested, such notice shall also specify the Interest
Period to be applicable thereto upon such continuation or conversion. The Agent,
on the day any such notice is given, shall provide notice of such election to
the Lenders. If a Borrower shall not timely deliver such a notice with respect
to any outstanding Fixed Rate Syndicated Borrowing, such Borrower shall be
deemed to have elected to convert such Fixed Rate Syndicated Borrowing to a
Floating Rate Borrowing on the last day of the then current Interest Period with
respect to such Borrowing.
2.10 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, if, upon receiving a request for a
Eurodollar Rate Syndicated Borrowing pursuant to Section 2.6, or a request for a
continuation of a Eurodollar Rate Syndicated Borrowing as a Eurodollar Rate
Syndicated Borrowing of the then existing type, or a request for conversion of a
Eurodollar Rate Syndicated Borrowing of one type to a Eurodollar Rate Syndicated
Borrowing of another type, or a request for a conversion of a Floating Rate
Borrowing to a Eurodollar Rate Syndicated Borrowing pursuant to Section 2.9, (a)
in the case of any Eurodollar Rate Syndicated Borrowing, deposits in U.S.
Dollars for periods comparable to the Interest Period elected by the Company are
not available to any Lender in the relevant interbank or secondary market and
such Lender has provided to the Agent and the Company a certificate prepared in
good faith to that effect, or (b) any Lender reasonably determines that the
Eurodollar Base Rate will not adequately and fairly reflect the cost to such
Lender of making, funding or maintaining the related Eurodollar Rate Syndicated
Loan and such Lender has provided to the Agent and the Company a certificate
prepared in good faith to that effect, or (c) by reason of national or
international financial, political or economic conditions or by reason of any
applicable law, treaty, rule or regulation (whether domestic or foreign) now or
hereafter in effect, or the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Lender with any directive of such authority
(whether or not having the force of law), including without limitation exchange
controls, it is impracticable, unlawful or impossible for any Lender (i) to make
or fund the relevant Eurodollar Rate Syndicated Borrowing or (ii) to continue
such Eurodollar Rate Syndicated Borrowing as a Eurodollar Rate Syndicated
Borrowing of the then existing type or (iii) to convert a Loan to such a
Eurodollar Rate Syndicated Loan, and such Lender has provided to the Agent and
the Company a certificate prepared in good faith to that effect, then,
notwithstanding any other provision herein, (A) the
-32-
Commitment of such Lender to make or continue Eurodollar Rate Syndicated
Borrowings or to convert Floating Rate Loans to Eurodollar Rate Syndicated Loans
shall forthwith be canceled until such time as such Lender shall no longer be
subject to such circumstances preventing it from making or maintaining the
affected Loans, and (B) such Lender's Loans then outstanding as Eurodollar Rate
Syndicated Loans, if any, shall be converted automatically to Floating Rate
Loans on the respective last days of the then current Interest Periods with
respect thereto or within such earlier period as may be required by law. If any
such conversion of a Eurodollar Rate Syndicated Loan occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Company shall pay to such Lender such amounts, if any, as may be required under
Section 3.9.
2.11 Minimum Amounts; Limitation on Number of Borrowings. Except for
(a) Borrowings and conversions thereof which exhaust the entire remaining amount
of the Commitments, and (b) conversions or payments required pursuant to Section
3.1(c) or Section 3.8, each Syndicated Advance, each continuation or conversion
pursuant to Section 2.9 and each prepayment thereof shall be in a minimum amount
of $3,000,000 and in integral multiples of $1,000,000 for Advances denominated
In U.S. Dollars and in a minimum amount of C$3,000,000 and in integral multiples
of C$1,000,000 for Advances denominated in Canadian Dollars, or such lesser
amount agreed to by the Agent.
2.12 Notes. The Borrowers agree that, upon the request of the Agent or
any Lender, the Borrowers will execute and deliver to such Lender Notes for such
Lender, provided that the delivery of such Notes shall not be a condition
precedent to the making of any Advances.
2.13 Security and Collateral To secure or guarantee the payment when
due of all Lender Obligations, the Borrowers shall execute and deliver, or cause
to be executed and delivered, to the Lenders and the Agent Loan Documents
granting the following, subject to any Intercreditor Agreement:
(a) Pledges, pursuant to Pledge Agreements, of the Required Percentage
of the present and future Capital Stock of certain present and future Foreign
Subsidiaries and Guaranties of certain present and future Domestic Subsidiaries
such that, at all times, the Domestic Subsidiaries which are not Guarantors and
the Foreign Subsidiaries that do not have the Required Percentage of their
Capital Stock pledged pursuant to Pledge Agreements do not, if considered in the
aggregate as a single Subsidiary, constitute a Significant Subsidiary. As used
herein, "Required Percentage" means, with respect to any Foreign Subsidiary, (i)
if such Foreign Subsidiary is not a "controlled foreign corporation" as defined
in the Code, 100% and (ii) if such Foreign Subsidiary is a "controlled foreign
corporation" as defined in the Code, 65% of the total voting power of all
classes of issued and outstanding voting Capital Stock of such Foreign or in
excess of such percentage of the total voting power which as a result of changes
enacted after the date hereof in the Code or for any other reason may be pledged
without constituting the pledge an investment of earnings in the United States
property under section 956 of the Code.
(b) All other security and collateral described in the Pledge
Agreements.
(c) Agent and each of the Lenders agrees that at any time or from time
to time, provided no Default or Event of Default then exists or would be caused
thereby, the Agent shall upon the request of the Company release one or more
Domestic Subsidiaries that are Guarantors from any and all liability under their
respective Guaranties, and/or release the Capital Stock of one or more Foreign
Subsidiaries from the lien granted under the Pledge Agreements, but only to the
extent that the Agent, in its reasonable discretion, shall have determined that
the requirements of the first sentence of Section 2.13(a) shall continue to be
satisfied following the requested release.
2.14 Increases in Aggregate Commitment. (i) Subject to the conditions
set forth
-33-
below, the Borrowers may, upon at least ten (10) days (or such other period of
time agreed to between the Agent and the Borrowers) prior written notice to the
Agent and the Lenders, increase the aggregate amount of the Commitments from
time to time, either by designating a lender not theretofore a Lender to become
a Lender (such designation to be effective only with the prior written consent
(such consent not to be unreasonably withheld) of the Agent) or by agreeing with
an existing Lender that such Lender's Commitment(s) shall be increased (thus
increasing the aggregate amount of the Commitments); provided that:
(a) no Default or Event of Default shall have occurred and be
continuing hereunder as of the effective date of such increase;
(b) the representations and warranties made by the Borrowers and
contained in Article IV hereof shall be true and correct on and as of the
effective date with the same effect as if made on and as of such date (other
than those representations and warranties that by their terms speak as of a
particular date, which representations and warranties shall be true and
correct as of such particular date);
(c) the amount of such increase in the aggregate amount of the U.S.
Commitments shall not be greater than $50,000,000, and shall not cause the
aggregate amount of all U.S. Commitments to exceed $300,000,000, and the
amount of such increase in the aggregate amount of the Canadian Commitments
shall not be greater than $20,000,000, and shall not cause the aggregate
amount of all Canadian Commitments to exceed $50,000,000;
(d) The Borrowers and the Lender or lender not theretofore a Lender,
shall execute and deliver to the Agent, a Lender Addition and Acknowledgement
Agreement, in form and substance satisfactory to the Agent and acknowledged
by the Agent and each Borrower (a "Lender Addition and Acknowledgement
Agreement");
(e) no existing Lender shall be obligated in any way to increase any of
its Commitment; and
(f) the Borrowers shall have complied with such other conditions in
connection with such increase as may be required by the Agent.
(ii) Upon the execution, delivery, acceptance and recording of the Lender
Addition and Acknowledgement Agreement, from and after the effective date
specified in a Lender Addition and Acknowledgement Agreement, such existing
Lender shall have a Commitment or Commitments as therein set forth or such other
Lender shall become a Lender with a Commitment or Commitments as therein set
forth and all the rights and obligations of a Lender with such a Commitment or
Commitments hereunder.
(iii) Upon its receipt of a Lender Addition and Acknowledgement Agreement
together with any Note or Notes, if requested, subject to such addition and
assumption and the approval by the Agent of any lender party thereto that is not
an existing Lender, the Agent shall, if such Lender Addition and Acknowledgement
Agreement has been completed and the other conditions described in this Section
2.14 have been satisfied:
(a) accept such Lender Addition and Acknowledgement Agreement;
-34-
(b) record the information contained therein in the Register; and
(c) give prompt notice thereof to the Lenders and the Borrowers and
deliver to the Lenders a schedule reflecting the new Commitments.
2.15 Unrestricted/Restricted Subsidiary Designation. Any Subsidiary may
be designated by the Company as an Unrestricted Subsidiary, provided that (a) no
Subsidiary that has an equity Investment in the Company or a Restricted
Subsidiary may be designated as an Unrestricted Subsidiary and (b) immediately
after giving effect to such designation (i) no Event of Default or Default
exists or would be caused thereby, on a pro forma basis acceptable to the Agent,
(ii) neither the Company nor any Restricted Subsidiary shall be liable, directly
or indirectly, for any of the indebtedness, obligations or other liabilities of
any kind of such Unrestricted Subsidiary or for any Contingent Liabilities with
respect to any Unrestricted Subsidiary except to the extent such indebtedness,
obligation or other liability is included in Total Debt, and (iii) the ratio of
the consolidated total assets of the Company and its Restricted Subsidiaries to
the consolidated total assets of the Company and its Subsidiaries, the ratio of
the consolidated EBITDA of the Company and its Restricted Subsidiaries to the
consolidated EBITDA of the Company and its Subsidiaries (based on the most
recent four consecutive fiscal quarters) and the ratio of the total consolidated
gross revenues of the Company and its Restricted Subsidiaries to the total
consolidated gross revenues of the Company and its Subsidiaries (based on the
most recent four consecutive fiscal quarters) equals not less than 90%. Any
Unrestricted Subsidiary may be designated as a Restricted Subsidiary by the
Company at any time provided that no Event of Default or Default then exists or
would be caused thereby, all on a pro forma basis acceptable to the Agent.
ARTICLE III.
PAYMENTS AND PREPAYMENTS
3.1 Principal Payments. (a) Unless earlier payment is required under
this Agreement, the Company shall pay to the Lenders on the Termination Date the
entire outstanding principal amount of the Syndicated Loans.
(b) Unless earlier payment is required under this Agreement,
the Canadian Borrower shall pay to the Canadian Lenders on the Termination Date
the entire outstanding principal amount of the Canadian Syndicated Loans.
(c) Unless earlier payment is required under this Agreement,
the Company shall, on the maturity date of any Bid-Option Loan, pay to the
Lender providing such Bid-Option Loan the outstanding principal amount of such
Loan.
(d) If at any time the U.S. Dollar Equivalent of the aggregate
Canadian Syndicated Loans exceeds the Activated Aggregate Canadian Commitments,
upon the request of any Lender the Canadian Borrower shall prepay the Canadian
Syndicated Loans in an amount equal to or greater than such excess.
(e) If at any time the U.S. Dollar Equivalent of the aggregate
Syndicated Loans, Swingline Loans and Letters of Credit exceeds the aggregate
U.S. Commitments, upon the request of any Lender the Borrowers shall prepay the
Advances in an amount equal to or greater than such excess.
-35-
(f) The Company may at any time and from time to time
optionally prepay all or a portion of the Loans without premium in the case of
Syndicated Loans, provided that (i) in the case of the prepayment of Fixed Rate
Loans, the Company shall provide five Business Days notice to the Agent, and
(ii) in the case of the prepayment of Fixed Rate Loans prior to the last day of
the then current Interest Period with respect to such Loan, the Company shall
pay the Lenders for any funding losses and loss of profits incurred by the
Lenders as a result of any prepayment of such Loans.
3.2 Interest Payments. Each Borrower shall pay interest to the Lenders
on the unpaid principal amount of each Loan made to it (other than Bid-Option
Loans, for which the interest shall be payable directly to the Lender providing
such Bid-Option Loan as described in clauses (b) and (c) below), for the period
commencing on the date such Loan is made until such Loan is paid in full, on
each Interest Payment Date and at maturity (whether at stated maturity, by
acceleration or otherwise), and thereafter on demand, at the following rates per
annum:
(a) With respect to Syndicated Loans:
(i) During such periods that such Loan is a Floating
Rate Loan, the Floating Rate.
(ii) During such periods that such Loan is a
Eurodollar Rate Syndicated Loan, the Syndicated Eurodollar Rate applicable to
such Loan for each related Eurodollar Interest Period.
(iii) During such periods that such Loan is a BA Rate
Syndicated Loan, the BA Rate applicable to such Loan for each related BA
Interest Period.
(b) With respect to Absolute Rate Bid-Option Loans, the
Bid-Option Absolute Rate quoted for such Loan by the Lender making such Loan.
(c) With respect to each Eurodollar Rate Bid-Option Loan, the
Bid-Option Eurodollar Rate.
(d) With respect to Swingline Loans, the rate agreed to by the
Agent and the Company, provided that Swingline Loans shall bear interest at the
rate applicable to Floating Rate Loans at any time the Swingline Loans are
refunded by Floating Rate Loans or the Lenders are required to purchase
participations therein under Section 2.1(c)(iii).
Notwithstanding anything to the contrary contained in this Agreement, during the
continuance of a Default or Event of Default the Required Lenders may, at their
option, by notice to the Borrowers (which notice may be revoked at the option of
the Required Lenders notwithstanding any provision of Section 8.1 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as or converted into a Fixed Rate Loan or, at the end of any
existing Interest Period, continued as a Fixed Rate Loan. Notwithstanding
anything to the contrary contained in this Agreement, during the continuance of
an Event of Default the Required Lenders may, at their option, by notice to the
Borrowers (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.1 requiring unanimous consent of the
Lenders to changes in interest rates), declare that each Borrower pay interest
on demand at the Overdue Rate on the outstanding principal amount of any Loan
owing by it and any other amount payable by it hereunder (other than interest),
provided that, during
-36-
the continuance of an Event of Default under Section 6.1(i), the Overdue Rate as
described above shall be applicable without any election or action on the part
of the Agent or any Lender.
3.3 Letter of Credit Reimbursement Payments. (a)(i) The applicable
Borrower agrees to pay to the Lenders, on the day on which the Agent shall honor
a draft or other demand for payment presented or made under any Letter of
Credit, an amount equal to the amount paid by the Agent in respect of such draft
or other demand under such Letter of Credit and all expenses paid or incurred by
the Agent relative thereto. Unless the applicable Borrower shall have made such
payment to the Lenders on such day, upon each such payment by the Agent, the
Agent shall be deemed to have disbursed to the applicable Borrower for whose
benefit the Letter of Credit was issued, and the applicable Borrower shall be
deemed to have elected to satisfy its reimbursement obligation by, a Syndicated
Loan bearing interest at the Floating Rate for the account of the Lenders in an
amount equal to the amount so paid by the Agent in respect of such draft or
other demand under such Letter of Credit. Such Syndicated Loan shall be
disbursed notwithstanding any failure to satisfy any conditions for disbursement
of any Loan set forth in Article II hereof and, to the extent of the Syndicated
Loan so disbursed, the reimbursement obligation of the applicable Borrower under
this Section 3.3 shall be deemed satisfied; provided, however, that nothing in
this Section 3.3 shall be deemed to constitute a waiver of any Default or Event
of Default caused by the failure to the conditions for disbursement or
otherwise.
(ii) If, for any reason (including without limitation
as a result of the occurrence of an Event of Default with respect to the any
Borrower pursuant to Section 6.1(i)), Floating Rate Loans may not be made by the
Lenders as described in Section 3.3(a)(i), then (A) each Borrower agrees that
each reimbursement amount not paid pursuant to the first sentence of Section
3.3(a)(i) shall bear interest, payable on demand by the Agent, at the interest
rate then applicable to Floating Rate Loans, and (B) effective on the date each
such Floating Rate Loan would otherwise have been made, each Lender severally
agrees that it shall unconditionally and irrevocably, without regard to the
occurrence of any Default or Event of Default, in lieu of deemed disbursement of
loans, to the extent of such Lender's Commitment, purchase a participating
interest in each reimbursement amount. Each Lender will immediately transfer to
the Agent, in Same Day Funds, the amount of its participation. Each Lender shall
share, based on its Pro Rata Share, in any interest which accrues thereon and in
all repayments thereof. If and to the extent that any Lender shall not have so
made the amount of such participating interest available to the Agent, such
Lender and the applicable Borrower severally agree to pay to the Agent forthwith
on demand such amount together with interest thereon, for each day from the date
of demand by the Agent until the date such amount is paid to the Agent, at (x)
in the case of the applicable Borrower, the interest rate then applicable to
Floating Rate Loans and (y) in the case of such Lender, the Federal Funds Rate.
(b) The reimbursement obligation of each Borrower under this
Section 3.3 shall be absolute, unconditional and irrevocable and shall remain in
full force and effect until all obligations of such Borrower to the Lenders
hereunder shall have been satisfied, and such obligations of the Borrowers shall
not be affected, modified or impaired upon the happening of any event, including
without limitation, any of the following, whether or not with notice to, or the
consent of, any Borrower:
(i) Any lack of validity or enforceability of any
Letter of Credit or any documentation relating to any Letter of Credit or to any
transaction related in any way to such Letter of Credit (the "Letter of Credit
Documents");
(ii) Any amendment, modification, waiver, consent, or
any substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Letter of Credit Documents;
-37-
(iii) The existence of any claim, setoff, defense or
other right which any Borrower may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Persons or entities for whom any
such beneficiary or any such transferee may be acting), the Agent or any Lender
or any other Person or entity, whether in connection with any of the Letter of
Credit Documents, the transactions contemplated herein or therein or any
unrelated transactions;
(iv) Any draft or other statement or document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(v) Payment by the Agent to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of the Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part
of the Agent or any Lender or any party to any of the Letter of Credit Documents
to enforce, assert or exercise any right, power or remedy conferred upon the
Agent, any Lender or any such party under this Agreement or any of the Letter of
Credit Documents, or any other acts or omissions on the part of the Agent, any
Lender or any such party;
(vii) Any other event or circumstance that would, in
the absence of this clause, result in the release or discharge by operation of
law or otherwise of any Borrower from the performance or observance of any
obligation, covenant or agreement contained in this Section 3.3.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which any Borrower has or may have against the
beneficiary of any Letter of Credit shall be available hereunder to any Borrower
against the Agent or any Lender. Nothing in this Section 3.3 shall limit the
liability, if any, of the Lenders to the Borrowers pursuant to Section 8.5.
3.4 Applicable Lending Office; Payment Method. (a) Each Lender will
book its Loans at the appropriate Applicable Lending Office listed on
administrative information sheets provided to the Agent (or as established by
the Agent from time to time in the case of JPMCB, which shall be JPMCB Canada in
the case of Loans to the Canadian Borrower) in connection herewith or such other
Applicable Lending Office designated by such Lender in accordance with the final
sentence of this Section 3.4(a). All terms of this Agreement shall apply to any
such Applicable Lending Office and the Loans and any Notes issued hereunder
shall be deemed held by each Lender for the benefit of any such Applicable
Lending Office. Each Lender may, by written notice to the Agent and the
Borrowers, designate replacement or additional Applicable Lending Office through
which Loans will be made by it and for whose account Loan payments are to be
made.
(b) All payments to be made by the Company hereunder will be
made to the Agent at its applicable Agent Payment Office for the account of the
Lenders in U.S. Dollars and in Same Day Funds not later than 1:00 p.m. (Chicago
time) on the date on which such payment shall be due. All payments to be made by
the Canadian Borrower with respect to Canadian Syndicated Loans hereunder will
be made to the Agent at its applicable Agent Payment Office the account of the
Canadian Lenders in Canadian Dollars and in Same Day Funds not later than 1:00
p.m. (Toronto time) on the date on which such payment shall be due. Payments
received after 1:00 p.m. at the place for payment shall be deemed to be payments
made prior to 1:00 p.m. at the place for payment on the next succeeding Business
Day. The
-38-
Borrowers hereby authorize the Agent to charge their respective accounts with
the Agent in order to cause timely payment of amounts due hereunder to be made
(subject to sufficient funds being available in such account for that purpose).
(c) At the time of making each such payment, each Borrower
shall, subject to the other terms and conditions of this Agreement, specify to
the Agent that Borrowing or other obligation of such Borrower hereunder to which
such payment is to be applied. In the event that such Borrower fails to so
specify the relevant obligation or if an Event of Default shall have occurred
and be continuing, the Agent may apply such payments as it may determine in its
sole discretion to obligations of such Borrower to the Lenders arising under the
Loan Documents.
(d) On the day such payments are deemed received, the Agent
shall remit to the Lenders their Pro Rata Share of such payments in Same Day
Funds, to the Lenders at their respective Applicable Lending Offices.
3.5 No Setoff or Deduction. Subject to Section 3.11, all payments of
principal of and interest on the Loans and other amounts payable by the
Borrowers hereunder shall be made by the Borrowers without setoff or
counterclaim, and free and clear of, and without deduction or withholding for,
or on account of, any present or future taxes, levies, imposts, duties, fees,
assessments, or other charges of whatever nature, imposed by any governmental
authority, or by any department, agency or other political subdivision or taxing
authority, unless required by applicable laws. If any such taxes, levies,
imposts, duties, fees, assessments, or other charges are required to be withheld
from any amounts payable hereunder with respect to any Advance, the amounts so
payable shall be increased to the extent necessary to yield to the payee thereof
the interest or any such other amounts payable hereunder at the rates and in the
amounts specified in this Agreement.
3.6 Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement to the contrary, whenever any installment
of principal of, or interest on, any Loan outstanding hereunder or any other
amount due hereunder becomes due and payable on a day which is not a Business
Day, the maturity thereof shall be extended to the next succeeding Business Day
and, in the case of any installment of principal, interest shall be payable
thereon at the rate per annum determined in accordance with this Agreement
during such extension. Computations of interest and other amounts due under this
Agreement shall be made on the basis of a year of 360 days for the actual number
of days elapsed, including the first day but excluding the last day of the
relevant period, provided that the computation of interest at the Floating Rate
shall be made on the basis of a year of 365 days for the actual number of days
elapsed, including the first day but excluding the last day of the relevant
period. For the purposes of the Interest Act (Canada) hereunder (i) whenever
interest payable pursuant to this Agreement is calculated with respect to any
monetary obligation relating to Loans to the Canadian Borrower on the basis of a
period other than a calendar year (the "Calculation Period"), each rate of
interest determined pursuant to such calculation expressed as an annual rate is
equivalent to such rate as so determined, multiplied by the actual number of
days in the calendar year in which the same is to be ascertained and divided by
the number of days in the Calculation Period; (ii) the principle of deemed
reinvestment of interest with respect to any monetary obligation relating to
Loans in Canadian Dollars shall not apply to any interest calculation under this
agreement, and (iii) the rates of interest with respect to any monetary
obligation relating to Loans to the Canadian Borrower stipulated in this
Agreement are intended to be nominal rates and not effective rates or yields.
3.7 Additional Costs. (a) If the adoption of or any change in any law,
treaty, rule or regulation (whether domestic or foreign) applicable to any
Lender or the Agent, or in any interpretation,
-39-
application or administration thereof by any governmental authority charged with
the interpretation or administration thereof, or compliance by any Lender or the
Agent with any directive of any such authority (whether or not having the force
of law) made subsequent to the Effective Date, shall (i) affect the basis of
taxation of payments to any Lender or the Agent of any amounts payable by a
Borrower under this Agreement (other than taxes imposed on the overall net
income of the Lender or the Agent, by the jurisdiction, or by any political
subdivision or taxing authority of any such jurisdiction, in which any Lender or
the Agent, as the case may be, has its principal office or is otherwise
advancing or booking any Loan hereunder), or (ii) shall 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 or the
Agent, as the case may be, or (iii) shall impose any other condition with
respect to this Agreement, the Commitments, the Notes or the Advances, and the
result of any of the foregoing is to increase the cost to any Lender or the
Agent, as the case may be, of making, funding or maintaining any Fixed Rate Loan
or to reduce the amount of any sum receivable by any Lender or the Agent,
thereon, then such Borrower shall pay to such Lender or the Agent, as the case
may be, from time to time, upon request by such Lender (with a copy of such
request to be provided to the Agent) or the Agent, additional amounts sufficient
to compensate such Lender or the Agent, as the case may be, for such increased
cost or reduced sum receivable to the extent, such Lender or the Agent, as the
case may be, is not compensated therefor in the computation of the interest rate
applicable to such Loan. Each Lender or the Agent, as the case may be, seeking
compensation hereunder shall deliver to such Borrower a statement setting forth
such increased cost or reduced sum receivable as such Lender or the Agent, as
the case may be, has calculated in good faith. Such statement as to the amount
of such increased cost or reduced sum receivable, prepared in good faith and in
reasonable detail by such Lender or the Agent, as the case may be, and submitted
by such Lender or the Agent, as the case may be, to such Borrower, shall be
conclusive and binding for all purposes absent manifest error in computation.
(b) If the adoption of or any change in any law, treaty, rule
or regulation (whether domestic or foreign) applicable to any Lender or the
Agent, but applicable to banks or financial institutions generally, or in any
interpretation or administration thereof by any governmental authority charged
with the interpretation, application or administration thereof, or compliance by
any Lender or the Agent with any directive of any such authority (whether or not
having the force of law), including any risk-based capital guidelines made
subsequent to the Effective Date, affects the amount of capital required or
expected to be maintained by such Lender or the Agent (or any corporation
controlling such Lender or the Agent) and such Lender or the Agent, as the case
may be, determines that the amount of such capital is increased by or based upon
the existence of such Lender's or the Agent's obligations hereunder to any
Borrower and such increase has the effect of reducing the rate of return on such
Lender's or the Agent's (or such controlling corporation's) capital as a
consequence of such obligations hereunder to a level below that which such
Lender or the Agent (or such controlling corporation) could have achieved but
for such circumstances (taking into consideration its policies with respect to
capital adequacy) by an amount deemed by such Lender or the Agent to be
material, then such Borrower shall pay to such Lender or the Agent, as the case
may be, from time to time, upon request by such Lender (with a copy of such
request to be provided to the Agent) or the Agent, additional amounts sufficient
to compensate such Lender or the Agent (or such controlling corporation) for any
reduced rate of return which such Lender or the Agent reasonably determines to
be allocable to the existence of such Lender's or the Agent's obligations
hereunder. Each Lender or the Agent, as the case may be, seeking compensation
hereunder shall deliver to each such Borrower a statement setting forth such
increased cost or reduced sum receivable as such Lender or the Agent, as the
case may be, has calculated in good faith. Such statement as to the amount of
such compensation, prepared in good faith and in reasonable detail by such
Lender or the Agent, as the case may be, and submitted by such Lender or the
Agent to such Borrower, shall be conclusive and binding for all purposes absent
manifest error in computation.
-40-
(c) Each Lender will promptly notify the affected Borrower and
the Agent of any event of which it has actual knowledge occurring after the date
hereof which will entitle to such Lender to compensation pursuant to this
Section 3.7 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
such Lender or contrary to its policies.
3.8 Illegality and Impossibility. In the event that any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Lender, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive of such authority (whether or not having the force of law),
including without limitation exchange controls, shall make it unlawful or
impossible for any Lender to maintain any Fixed Rate Loan under this Agreement
or shall make it impracticable, unlawful or impossible for, or shall in any way
limit or impair the ability of, a Borrower to make or any Lender to receive any
payment under this Agreement at the place specified for payment hereunder, or to
freely convert any amount paid into U.S. Dollars at market rates of exchange or
to transfer any amount paid or so converted to the address of its principal
office specified in Section 8.2, such Borrower shall upon receipt of notice
thereof from such Lender, repay in full the then outstanding principal amount of
each Fixed Rate Loan so affected, together with all accrued interest thereon to
the date of payment and all amounts owing to such Lender under Section 3.9, (a)
on the last day of the then current Interest Period applicable to such Loan if
such Lender may lawfully continue to maintain such Loan to such day, or (b)
immediately if such Lender may not continue to maintain such Loan to such day.
3.9 Indemnification. If a Borrower makes any payment of principal with
respect to any Fixed Rate Loan on any other date than the last day of an
Interest Period applicable thereto (whether pursuant to Section 3.8 or Section
6.2 or otherwise), or if a Borrower fails to borrow or continue any Fixed Rate
Loan, or convert any Floating Rate Loan to a Fixed Rate Loan, after notice has
been given to the Lenders in accordance with Section 2.6 or 2.9, as applicable,
such Borrower shall reimburse each Lender on demand for any resulting net loss
or expense incurred by each such Lender after giving credit for any earnings or
other quantifiable financial benefit to such Lender from such Lender's
investment or other amounts prepaid or not reborrowed, including without
limitation any loss incurred in obtaining, liquidating or employing deposits
from third parties, whether or not such Lender shall have funded or committed to
fund such Loan. A statement as to the amount of such loss or expense, prepared
in good faith and in reasonable detail by such Lender and submitted by such
Lender to such Borrower, shall be conclusive and binding for all purposes absent
manifest error in computation. Calculation of all amounts payable to such Lender
under this Section 3.9 shall be made as though such Lender shall have actually
funded or committed to fund the relevant Fixed Rate Loan through the purchase of
an underlying deposit in an amount equal to the amount of such Loan and having a
maturity comparable to the related Interest Period; provided, however, that such
Lender may fund any Fixed Rate Loan in any manner it sees fit and the foregoing
assumption shall be utilized only for the purpose of calculation of amounts
payable under this Section 3.9.
3.10 Substitution of Lender. If (a) the obligation of any Lender to
make or maintain Eurodollar Rate Syndicated Loans has been suspended pursuant to
Section 3.8 or 2.10 when not all Lenders obligations have been suspended, (b)
any Lender has demanded compensation under Section 3.7 or (c) any Lender is a
Defaulting Lender, the Borrowers shall have the right, if no Default or Event of
Default then exists, to replace such Lender (a "Replaced Lender") with one or
more other Lenders (collectively, the "Replacement Lender") acceptable to the
Agent, provided that (i) at the time of any replacement pursuant to this Section
3.10, the Replacement Lender shall enter into one or more Assignment and
Acceptances, pursuant to which the Replacement Lender shall acquire the
Commitments and outstanding Advances and
-41-
other obligations of the Replaced Lender and, in connection therewith, shall pay
to the Replaced Lender in respect thereof an amount equal to the sum of (A) the
amount of principal of, and all accrued interest on, all outstanding Loans of
the Replaced Lender, (B) the amount of all accrued, but theretofore unpaid, fees
owing to the Replaced Lender under Section 2.3 and (C) the amount which would be
payable by the Borrowers to the Replaced Lender pursuant to Section 3.9 if the
Borrowers prepaid at the time of such replacement all of the Loans of such
Replaced Lender outstanding at such time and (ii) all obligations of the
Borrowers then owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignment and Acceptances, the payment of amounts referred to in clauses (i)
and (ii) above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of the appropriate Note or Notes, if any, executed by the
Borrowers, the Replacement Lender shall become a Lender hereunder and the
Replaced Lender shall cease to constitute a Lender hereunder. The provisions of
this Agreement (including without limitation Sections 3.9 and 8.5) shall
continue to govern the rights and obligations of a Replaced Lender with respect
to any Advances made or any other actions taken by such Lender while it was a
Lender. Nothing herein shall release any Defaulting Lender from any obligation
it may have to the Borrowers, the Agent or any other Lender.
3.11 Taxes. (a) At least five Business Days prior to the first date on
which interest or fees are payable hereunder for the account of any U.S. Lender,
each U.S. Lender that is not incorporated under the laws of the United States of
America or a state thereof agrees that it will deliver to each of the Company
and the Agent two duly completed copies of United States Internal Revenue
Service Form W-8BEN or W-8ECI and Form W-8 or W-9 and any additional forms
necessary for claiming complete exemption from United States withholding taxes
(or any successor or substitute forms), certifying in either case that such U.S.
Lender is entitled to receive payments under this Agreement and the Loans
without deduction or withholding of any United States federal income taxes. Each
U.S. Lender which so delivers a Form W-8BEN or W-8ECI and a Form W-8 or W-9 and
any additional forms necessary for claiming complete exemption from United
States withholding taxes (or any successor or substitute forms) further
undertakes to deliver to each of the Company and the Agent two additional copies
of such forms (or any successor or substitute forms) on or before the date that
such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Agent to the extent it may lawfully do so, in
each case certifying that such U.S. Lender is entitled to receive payments under
this Agreement and the Loans without deduction or withholding of any United
States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such U.S. Lender from duly completing and
delivering any such form with respect to it and such U.S. Lender advises the
Company and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
(b) Each Canadian Lender that is created or organized under the laws of
a jurisdiction other than Canada or a Province thereof making Canadian
Syndicated Loans shall deliver, or have its Applicable Lending Office to be used
to make Canadian Syndicated Loans deliver, to the Borrowers and the Agent on the
Effective Date (or on the date on which such Canadian Lender or such Applicable
Lending Office becomes a Lender hereunder), evidence that either (i) such
Canadian Lender or its Applicable Lending Office is an authorized foreign bank
and that any payments received by such Canadian Lender or its Applicable Lending
Office under the Canadian Syndicated Loans is in respect of such entity's
Canadian banking business, all for the purposes of subsection 112(13.3) of the
Income Tax Act (Canada), or (ii) the
-42-
Minister of National Revenue is satisfied that payments made to such Lender
hereunder are not subject to Canadian withholding taxes pursuant to Regulation
805(2) of the Income Tax Act (collectively, "Evidence of Canadian Tax
Exemption"). In addition, from time to time after the Effective Date (or the
date on which such Canadian Lender becomes a Lender hereunder) upon the
reasonable request of the Borrowers or the Agent, each such Canadian Lender
further agrees to deliver to the Borrowers and the Agent further Evidence of
Canadian Tax Exemption, unless any change in treaty, law, regulation or official
interpretation thereof prevents such Lender from duly providing same.
Notwithstanding anything in this Section 3.11 to the contrary, the Borrowers
shall not have any obligation to pay any withholding taxes or to indemnify any
Canadian Lender for any withholding taxes to the extent that such taxes result
from the failure of such Lender to comply with its obligations under this
paragraph.
(c) If any governmental authority of any jurisdiction asserts a claim
that the Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered or was not
properly executed, or because such Lender failed to notify the Agent of a change
in circumstances which rendered the exemption from, or reduction of, withholding
tax ineffective, or for any other reason) such Lender shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent as tax or
otherwise, including penalties and interest, and including any taxes imposed by
any jurisdiction on the amounts payable to the Agent under this Section,
together with all costs and expenses (including attorney costs). The obligations
of the Lenders under this subsection shall survive the payment of all Loans.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Agent and the Lenders
that:
4.1 Corporate Existence and Power. It is a corporation duly organized,
validly existing and in good standing under the laws of the state, province or
other political subdivision of its jurisdiction of incorporation or
organization, as the case may be, and is duly qualified to do business, and is
in good standing, in all additional jurisdictions where such qualification is
necessary under applicable law, except where the failure to be so qualified
would not have a Material Adverse Effect. It has all requisite corporate and
other power to own or lease the properties used in its business and to carry on
its business as now being conducted and as proposed to be conducted, and to
execute and deliver this Agreement and the other Loan Documents to which it is a
party and to engage in the transactions contemplated by the Loan Documents.
4.2 Corporate Authority. The execution, delivery and performance by it
of the Loan Documents to which it is a party have been duly authorized by all
necessary corporate action and are not in contravention of any material law,
rule or regulation, or any judgment, decree, writ, injunction, order or award of
any arbitrator, court or governmental authority, or of the terms of its charter
or by-laws, or of any material contract or undertaking to which it is a party or
by which it or its property is bound or affected and do not result in the
imposition of any Lien except for Permitted Liens.
4.3 Binding Effect. The Loan Documents to which it is a party are the
legal, valid and binding obligations of it enforceable against it in accordance
with their respective terms; except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to creditors' rights and except that the remedy of specific performance
and injunctive and other
-43-
forms of equitable relief are subject to equitable defenses and to the
discretion of the court before which any proceedings may be brought.
4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the
corporate name, jurisdiction of organization and ownership of each Subsidiary of
the Company. Each Restricted Subsidiary and each Person becoming a Restricted
Subsidiary of the Company after the date hereof is and will be duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and is and will be duly qualified to do business in each additional
jurisdiction where such qualification is or may be necessary under applicable
law, except where the failure to be so qualified would not have a Material
Adverse Effect. Each Restricted Subsidiary of the Company has and will have all
requisite corporate power to own or lease the properties used in its business
and to carry on its business as now being conducted and as proposed to be
conducted. All outstanding shares of Capital Stock of each Restricted Subsidiary
of the Company have been and will be validly issued and are and will be fully
paid and nonassessable and, except as otherwise indicated in Schedule 4.4 hereto
or disclosed in writing to the Agent from time to time, are and will be owned,
beneficially and of record, by the Company or another Restricted Subsidiary of
the Company free and clear of any Liens.
4.5 Litigation and Contingent Obligations. Except as set forth in
Schedule 4.5 hereto, there is no action, suit or proceeding pending or, to the
best of the Company's knowledge, threatened against or affecting the Company or
any of its Restricted Subsidiaries before or by any court, governmental
authority or arbitrator, which is reasonably likely to result either
individually or collectively, in a Material Adverse Effect and, to the best of
the Company's knowledge, there is no basis for any such action, suit or
proceeding. Other than any liability incident to any litigation, arbitration or
proceeding which (i) could not reasonably be expected to have a Material Adverse
Effect or (ii) is set forth on Schedule 4.5, neither the Company nor any of its
Restricted Subsidiaries has any material contingent obligations not provided for
or disclosed in the financial statements referred to in Section 4.6.
4.6 Financial Condition. The consolidated balance sheet of the Company
and its Subsidiaries and the consolidated statements of income, and cash flows
of the Company and its Subsidiaries for the fiscal year ended December 27, 2003
and reported on by Ernst & Young LLP, independent certified public accountants,
and the interim consolidated balance sheet and interim consolidated statements
of income and cash flows of the Company and its Subsidiaries, as of or for the
six month period ended on September 26, 2004, copies of which have been
furnished to the Lenders, fairly present, and the financial statements of the
Company and its Subsidiaries delivered pursuant to Section 5.1(d) will fairly
present the consolidated financial position of the Company and its Subsidiaries
as at the respective dates thereof, and the consolidated results of operations
of the Company and its Subsidiaries for the respective periods indicated, all in
accordance with Generally Accepted Accounting Principles consistently applied
(subject, in the case of said interim statements, to year-end audit
adjustments). There has been no Material Adverse Effect since the date of the
consolidated balance sheet of the Company delivered to the Lenders prior to the
Effective Date.
4.7 Use of Loans. The Borrowers will use the proceeds of the Advances
for their working capital requirements and general corporate purposes. Neither
the Company nor any of its Subsidiaries extends or maintains, in the ordinary
course of business, credit for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying margin stock (within the meaning of Regulations
T, U or X of the Board of Governors of the Federal Reserve System), and no part
of the proceeds will be used in violation of Regulations T, U or X or any other
law or regulation. After applying the proceeds of each Loan, such margin stock
will not constitute more than 25% of the value of the assets (either of any
Borrower
-44-
alone or of the Company and its Subsidiaries on a consolidated basis) that are
subject to any provisions of this Agreement that may cause the Loans to be
deemed secured, directly or indirectly, by such margin stock.
4.8 No Conflict; Consents, Etc. Neither the execution and delivery by
any Borrower of the Loan Documents to which it is a party, nor the consummation
of the transactions therein contemplated, nor compliance with the provisions
thereof will violate (i) any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on any Borrower or any of their Subsidiaries
or (ii) each Borrower's or any Subsidiary's articles or certificate of
incorporation, articles or certificate of organization, by-laws, or operating or
other management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which either Borrower or any of their
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of any Lien in, of or on the Property of the
Company or a Subsidiary pursuant to the terms of any such indenture, instrument
or agreement. Except for such consents, approvals, authorizations, declarations,
registrations or filings delivered by the Borrower pursuant to Section 2.7(j),
if any, each of which is in full force and effect, no consent, approval or
authorization of or declaration, registration or filing with any governmental
authority or any nongovernmental Person, including without limitation any
creditor, lessor or stockholder of any Borrower or Guarantor, is required on the
part of any Borrower or Guarantor in connection with the execution, delivery and
performance of the Loan Documents, or the transactions contemplated hereby or as
a condition to the legality, validity or enforceability of the Loan Documents.
The Company and its Restricted Subsidiaries have complied with all applicable
statutes, rules, regulations, orders and restrictions of any domestic or foreign
government or any instrumentality or agency thereof having jurisdiction over the
conduct of their respective businesses or the ownership of their respective
properties if failure to comply therewith could reasonably be expected to have a
Material Adverse Effect.
4.9 Taxes. The Company and its Restricted Subsidiaries have filed all
material tax returns (federal, state and local) required to be filed and have
paid all taxes shown thereon to be due, including interest and penalties, or
have established adequate financial reserves on their respective books and
records for payment thereof except where the failure to file such returns, pay
such taxes or establish such reserves would not have a Material Adverse Effect.
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to this Agreement, the Company or one or more
of its Restricted Subsidiaries have good and marketable fee simple title to all
of the real property, and a valid and indefeasible ownership interest in all of
the other properties and assets reflected in said balance sheet or subsequently
acquired by the Company or any such Restricted Subsidiary material to the
business or financial condition of the Company and its Restricted Subsidiaries
taken as a whole, except for title defects that do not have a Material Adverse
Effect. All of such properties and assets are free and clear of any Lien, except
for Permitted Liens. The Company and each of its Restricted Subsidiaries owns,
or is licensed to use, all patents, trademarks, trade names, service marks,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted and as contemplated to be conducted (the
"Intellectual Property"), and the use of such Intellectual Property by the
Company and each of its Restricted Subsidiaries does not infringe on the rights
of any Person. The Pledge Agreements grant a first priority, perfected and
enforceable lien and security interest on 65% of the Capital Stock of certain
Foreign Subsidiaries owned by the Company or any Guarantor to the extent that
65% of the Capital Stock of such Foreign Subsidiaries is required to be pledged
by Section 2.13.
4.11 ERISA. The Company, its Restricted Subsidiaries, their ERISA
Affiliates and their respective Plans are in substantial compliance in all
material respects with those provisions of ERISA
-45-
and of the Code which are applicable with respect to any Plan. No Prohibited
Transaction and no Reportable Event has occurred with respect to any such Plan
which would cause an Event of Default. Neither the Company, any of its
Restricted Subsidiaries nor any of their ERISA Affiliates is an employer with
respect to any Multiemployer Plan. The Company, its Restricted Subsidiaries and
their ERISA Affiliates have met the minimum funding requirements under ERISA and
the Code with respect to each of their respective Plans, if any, and have not
incurred any liability to the PBGC, other than premiums which are not yet due
and payable. The execution, delivery and performance of the Loan Documents does
not constitute a Prohibited Transaction. There is no material unfunded benefit
liability, determined in accordance with Section 4001(a)(18) of ERISA, with
respect to any Plan of the Company, its Restricted Subsidiaries or their ERISA
Affiliates.
4.12 Environmental and Safety Matters. Except as disclosed on Schedule
4.12 hereto, the Company and each Restricted Subsidiary of the Company is in
substantial compliance with all material federal, state and local laws,
ordinances and regulations relating to safety and industrial hygiene or to the
environmental condition, including without limitation all material Environmental
Laws in jurisdictions in which the Company or any such Restricted Subsidiary
owns or operates, or has owned or operated, a facility or site, or arranges or
has arranged for disposal or treatment of hazardous substances, solid waste, or
other wastes, accepts or has accepted for transport any hazardous substances,
solid wastes or other wastes or holds or has held any interest in real property
or otherwise. No written demand, claim, notice, suit, suit in equity, action,
administrative action, investigation or inquiry whether brought by any
governmental authority, private Person or otherwise, arising under, relating to
or in connection with any Environmental Laws is pending or, to the best of the
Company's actual knowledge, threatened against the Company or any such
Restricted Subsidiary, any real property in which the Company or any such
Restricted Subsidiary holds or has held an interest or any past or present
operation of the Company or any such Restricted Subsidiary which could have a
Material Adverse Effect. As of the date hereof, except as disclosed in Schedule
4.12 hereto, neither the Company nor any Restricted Subsidiary of the Company
(a) is the subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic substances,
radioactive materials, hazardous wastes or related materials into the
environment, or (b) has received any notice of any toxic substances, radioactive
materials, hazardous waste or related materials in, or upon any of its
properties in violation of any Environmental Laws. As to the matters disclosed
in Schedule 4.12 hereto, none could have a Material Adverse Effect. No release,
threatened release or disposal of hazardous waste, solid waste or other wastes
is occurring or has occurred on, under or to any real property in which the
Company or any of its Restricted Subsidiaries holds any interest or performs any
of its operations, in violation of any Environmental Law which could have a
Material Adverse Effect.
4.13 Material Agreements. Neither the Company nor any Restricted
Subsidiary is a party to any agreement or instrument or subject to any charter
or other corporate restriction which could reasonably be expected to have a
Material Adverse Effect. Neither the Company nor any Restricted Subsidiary is in
default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in (i) any agreement to which it is a party,
which default could reasonably be expected to have a Material Adverse Effect or
(ii) any agreement or instrument evidencing or governing Indebtedness.
4.14 Compliance With Laws. The Company and its Restricted Subsidiaries
have complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
-46-
4.15 Plan Assets; Prohibited Transactions. Neither Borrower is an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. Section
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Advances hereunder gives rise to a Prohibited Transaction.
4.16 Investment Company Act. Neither Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
4.17 Public Utility Holding Company Act. Neither Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
4.18 Insurance. The certificate signed by the chief financial officer
or treasurer of the Company, that attests to the existence and adequacy of, and
summarizes, the property and casualty insurance program carried by the Company
with respect to itself and its Restricted Subsidiaries and that has been
furnished by the Company to the Agent and the Lenders, is complete and accurate.
This summary includes the insurer's or insurers' name(s), policy number(s),
expiration date(s), amount(s) of coverage, type(s) of coverage, exclusion(s),
and deductibles. This summary also includes similar information, and describes
any reserves, relating to any self-insurance program that is in effect.
4.19 Reportable Transaction. The Borrowers do not intend to treat the
Advances and the other transactions contemplated hereby as being a "reportable
transaction" (within the meaning of Treasury Regulation Section 1.6011-4). In
the event any Borrower determines to take any action inconsistent with such
intention, it will promptly notify the Agent thereof. The Borrowers acknowledge
that the Agent and/or one or more of the Lenders may treat its Advances and the
other transactions contemplated hereby as part of a transaction that is subject
to Treasury Regulation Section 1.6011-4 or Section 301.6112-1, and the Agent and
such Lender or Lenders, as applicable, may file such IRS forms or maintain such
lists and other records as they may determine is required by such Treasury
Regulations.
ARTICLE V.
COVENANTS
5.1 Affirmative Covenants. Each Borrower covenants and agrees that,
until the Termination Date and thereafter until irrevocable payment in full of
the principal of and accrued interest on the Advances and the performance of all
other obligations of the Obligors under the Loan Documents, unless the Required
Lenders shall otherwise consent in writing, it shall, and shall cause each of
its Restricted Subsidiaries to:
(a) Preservation of Corporate Existence, Etc. Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except to the extent permitted by Section 5.2(e) or
5.2(f), and its qualification as a foreign corporation in good standing in each
jurisdiction in which such qualification is necessary under applicable law,
other than where failure to so qualify will not have a Material Adverse Effect.
-47-
(b) Compliance with Laws, Etc. Comply in all material respects
with all applicable laws, rules, regulations and orders of any governmental
authority, whether federal, state, local or foreign (including without
limitation ERISA, the Code and Environmental Laws), in effect from time to time,
and pay and discharge promptly when due all taxes, assessments and governmental
charges or levies imposed upon it or upon its income, revenues or property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise, which, if unpaid, might
give rise to Liens upon such properties or any portion thereof, except (i) to
the extent that payment of any of the foregoing is then being contested in good
faith by appropriate legal proceedings or (ii) to the extent that failure to pay
any of the foregoing or comply with any of the foregoing relates solely to
Restricted Subsidiaries which are not wholly-owned Restricted Subsidiaries of
the Company or Guarantors and if all such non wholly-owned Restricted
Subsidiaries do not, if considered in the aggregate as a single Subsidiary,
constitute a Significant Subsidiary and such failure could not have a Material
Adverse Effect (but the Company shall provide notice to the Agent of the
occurrence of any such failure to comply or failure to pay described in this
proviso).
(c) Maintenance of Properties; Insurance. Maintain, preserve
and protect all property that is material to the conduct of the business of the
Company or any of its Restricted Subsidiaries and keep such property in good
repair, working order and condition and from time to time make, or cause to be
made all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times in accordance with
customary and prudent business practices for similar businesses; and, maintain
in full force and effect insurance with responsible and reputable insurance
companies or associations in such amounts, on such terms and covering such
risks, as is usually carried by companies engaged in similar businesses and
owning similar properties similarly situated and maintain in full force and
effect public liability insurance, insurance against claims for Personal injury
or death or property damage occurring in connection with any of its activities
or any properties owned, occupied or controlled by it, in such amount as it
shall reasonably deem necessary.
(d) Reporting Requirements. Furnish to the Lenders and the
Agent the following:
(i) Promptly and in any event within three calendar
days after becoming aware of the occurrence of any Event of Default or Default
and promptly and in any event within thirty calendar days after the commencement
of any litigation against, by or affecting the Company or any of its Restricted
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect, and any material developments therein, written notice thereof together
with a statement of the chief financial officer of the Company setting forth
details of such Event of Default or Default or such litigation and the action
which the Company or such Restricted Subsidiary, as the case may be, has taken
and proposes to take with respect thereto;
(ii) As soon as available and in any event within 45
days (or such earlier date as the Company may be required to file its applicable
quarterly report on Form 10-Q by the rules and regulations of the Securities and
Exchange Commission or any successor agency thereof) after the end of each of
the first three fiscal quarters of each fiscal year of the Company, the
consolidated balance sheet of the Company and its Subsidiaries as of the end of
such quarter, and the related consolidated statements of income and cash flow
for the period commencing at the end of the previous fiscal year and ending with
the end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the preceding
fiscal year, and consolidating summary financial statements reasonably
acceptable to the Agent reflecting the Company and its Restricted Subsidiaries
and all
-48-
Unrestricted Subsidiaries as of the end of such quarter, all in reasonable
detail and duly certified (subject to year-end audit adjustments) by the chief
financial officer of the Company as having been prepared in accordance with
Generally Accepted Accounting Principles, together with a certificate of the
chief financial officer of the Company stating (A) that no Event of Default or
Default has occurred and is continuing or, if an Event of Default or Default has
occurred and is continuing, a statement setting forth the details thereof and
the action which the Company has taken and proposes to take with respect
thereto, and (B) that a computation (which computation shall accompany such
certificate and shall be in reasonable detail and shall contain a line item
describing the aggregate Investment in all Unrestricted Subsidiaries) showing
compliance with Section 5.2(a), (b), and (c);
(iii) As soon as available and in any event within 90
days (or such earlier date as the Company may be required to file its applicable
annual report on Form 10-K by the rules and regulations of the Securities and
Exchange Commission or any successor agency thereof) after the end of each
fiscal year of the Company, a copy of the consolidated balance sheet of the
Company and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income and cash flow of the Company and its
Subsidiaries for such fiscal year, with a customary audit report of Ernst &
Young LLP or other nationally recognized independent certified public
accountants selected by the Company, without qualifications unacceptable to the
Agent, together with a certificate of the chief financial officer of the Company
(A) stating that no Event of Default or Default has occurred and is continuing
or, if an Event of Default or Default has occurred and is continuing, a
statement setting forth the details thereof and the action which the Company has
taken and proposes to take with respect thereto, (B) stating that a computation
(which computation shall accompany such certificate and shall be in reasonable
detail and shall contain a line item describing the aggregate Investment in all
Unrestricted Subsidiaries) showing compliance with Section 5.2(a), (b), and (c),
and (C) attaching internally prepared consolidating summary financial statements
reasonably acceptable to the Agent reflecting the Company and its Restricted
Subsidiaries and all Unrestricted Subsidiaries as of the end of such fiscal year
prepared by the Company and certified by the chief financial officer of the
Company as having been prepared in accordance with Generally Accepted Accounting
Principles;
(iv) As soon as available and in any event within 90
days after the beginning of each fiscal year of the Company, a budget and
forecast for such fiscal year in form and substance reasonably satisfactory to
the Agent;
(v) Promptly after the sending or filing thereof,
copies of all reports, proxy statements and financial statements which the
Company sends to or files with any of its security holders or any securities
exchange or the Securities and Exchange Commission or any successor agency
thereof;
(vi) Promptly and in any event within 10 Business
Days after receiving or becoming aware thereof (A) a copy of any notice of
intent to terminate any Plan of the Company, its Restricted Subsidiaries or any
ERISA Affiliate filed with the PBGC, (B) a statement of the chief financial
officer of the Company setting forth the details of the occurrence of any
Reportable Event with respect to any such Plan, (C) a copy of any notice that
the Company, any of its Subsidiaries or any ERISA Affiliate may receive from the
PBGC relating to the intention of the PBGC to terminate any such Plan or to
appoint a trustee to administer any such Plan, (D) a copy of any notice of
failure to make a required installment or other payment within the meaning of
Section 412(n) of the Code or Section 302(f) of ERISA with respect to any such
Plan, or (E) any management letter or comparable analysis received by the
Company from its auditors; and
-49-
(vii) Promptly, such other information respecting the
business, properties, operations or condition, financial or otherwise, of the
Company or any of its Subsidiaries as any Lender or the Agent may from time to
time reasonably request.
(e) Accounting; Access to Records, Books, Etc. Maintain a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in accordance
with Generally Accepted Accounting Principles and to comply with the
requirements of this Agreement and, at any reasonable time and from time to time
with prior notice to the Company, permit any Lender or the Agent or any agents
or representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Company and
its Subsidiaries, and to discuss the affairs, finances and accounts of the
Company and its Subsidiaries with its directors, officers, employees and
independent auditors, provided that representatives of the Company selected by
the Company are present during any such visit or discussion, and by this
provision the Company does hereby authorize such Persons to discuss such
affairs, finances and accounts with any Lender or the Agent subject to the above
terms and conditions. The Company shall send a written notification to its
auditors informing them at each time the Company engages any auditors that it is
the primary intent of the Company for the auditors' accounting services to
benefit or influence the Lenders and the Agent.
(f) Guaranties and Pledge Agreements. Cause each Person that
is or becomes a Guarantor from time to time promptly to execute and deliver a
Guaranty to the Lenders and execute or cause the appropriate Person to execute,
additional Pledge Agreements or amendments to existing Pledge Agreements to
grant the liens and security interests required under Section 2.13 hereof, in
each case together with the other documentation relating to such Guaranty or
Pledge Agreement similar to that required to be delivered by or on behalf of the
Obligors under Section 2.7.
(g) Further Assurances. Will, and will cause each Guarantor
to, execute and deliver within 30 days after request therefor by the Required
Lenders or the Agent, all further instruments and documents and take all further
action that may be necessary or desirable, in order to give effect to, and to
aid in the exercise and enforcement of the rights and remedies of the Lenders
and the Agent under, the Loan Documents. In addition, the Company agrees to
deliver to the Agent and the Lenders from time to time upon the acquisition or
creation of any Subsidiary not listed in Schedule 4.4 hereto supplements to
Schedule 4.4 such that such Schedule, together with such supplements, shall at
all times accurately reflect the information provided for thereon.
5.2 Negative Covenants. Until the Termination Date and thereafter until
irrevocable payment in full of the principal of and accrued interest on the
Advances, and the performance of all other obligations of the Obligors under
Loan Documents, each Borrower agrees that, unless the Required Lenders shall
otherwise consent in writing, it shall not, and shall not permit any of its
Restricted Subsidiaries to:
(a) Leverage Ratio. Permit or suffer the Adjusted Leverage
Ratio to be greater than 0.60 to 1.0 at any time.
(b) Interest Coverage Ratio. Permit or suffer the Interest
Coverage Ratio to be less than 2.5 to 1.0 as of the end of any fiscal quarter.
(c) Net Worth - All Subsidiaries. Permit or suffer the Net
Worth - All Subsidiaries at any time to be less than $265,000,000, plus 50% of
Consolidated net income of the Company and its Subsidiaries for the two
consecutive fiscal quarters of the Company ending December 26,
-50-
2004 and each fiscal year of the Company ending thereafter, provided that if
such Consolidated net income of the Company and its Subsidiaries is negative for
the two consecutive fiscal quarters of the Company ending December 26, 2004 or
any fiscal year thereafter, as the case may be, the amount added for such fiscal
quarter or year shall be zero and it shall not reduce the amount added for any
other fiscal year, and plus 75% of the net proceeds from the sale or other
issuance of any Capital Stock of the Company.
(d) Liens. Create, incur or suffer to exist any Lien on any of
the assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Restricted Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and as to which adequate
financial reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA)
created and maintained in the ordinary course of business which are not material
in the aggregate, which would not have a Material Adverse Effect and which
constitute (A) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, (B) good faith deposits in
connection with bids, tenders, contracts or leases to which the Company or any
of its Restricted Subsidiaries is a party for a purpose other than borrowing
money or obtaining credit, including rent security deposits, (C) liens imposed
by law, such as those of carriers, warehousemen and mechanics, if payment of the
obligation secured thereby is not yet due, (D) Liens securing taxes, assessments
or other governmental charges or levies not yet subject to penalties for
nonpayment, and (E) pledges or deposits to secure public or statutory
obligations of the Company or any of its Restricted Subsidiaries, or surety,
customs or appeal bonds to which the Company or any of its Restricted
Subsidiaries is a party;
(iii) Liens affecting real property which constitute
minor survey exceptions or defects or irregularities in title, minor
encumbrances, easements or reservations of, or rights of others for, rights of
way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of such real property,
provided that all of the foregoing, in the aggregate, do not at any time
materially detract from the value of said properties or materially impair their
use in the operation of the businesses of the Company and its Restricted
Subsidiaries taken as a whole;
(iv) Each Lien described in Schedule 5.2(d) hereto
may be suffered to exist upon the same terms as those existing on the date
hereof, including extensions, renewals and replacements thereof so long as such
extension, renewal or replacement does not increase the principal amount of the
Indebtedness secured or extend such Lien to any other property, assets, rights
or revenues;
(v) (A) any Lien on equipment to secure any rights
granted with respect to such equipment in connection with the provision of all
or a part of the purchase price of such equipment created contemporaneously
with, or within 180 days after such acquisition, or (B) any Lien in property
existing in such property at the time of acquisition thereof, whether or not the
debt secured thereby is assumed by the Company or a Restricted Subsidiary, (C)
any Lien existing in the property of a corporation at the time such corporation
is merged into or consolidated with the Company or a Restricted Subsidiary or at
the time of a sale, lease, or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary, or (D) any Lien on any other fixed assets of
the Company or any of its Restricted Subsidiaries; provided, in the case of (A),
(B), (C) and (D), no such Liens shall exceed the fair market value of the
related property, not more than one such
-51-
Lien shall encumber such property at any one time and the aggregate outstanding
Indebtedness secured by all such Liens does not exceed $10,000,000;
(vi) Liens granted by any Restricted Subsidiary in
favor of the Company or any other Restricted Subsidiary;
(vii) The interest or title of a lessor under any
lease otherwise permitted under this Agreement with respect to the property
subject to such lease to the extent performance of the obligations of the
Company or its Restricted Subsidiary thereunder is not delinquent;
(viii) Liens on up to 65% of the present and future
Capital Stock of Foreign Subsidiaries to the extent required to be pledged under
Section 2.13 hereof, provided that such Liens secure only the Lender
Obligations, the Senior Note Debt and the other Subject Obligations and are
subject to an Intercreditor Agreement; and
(ix) Other Liens, provided that (A) the aggregate
outstanding Indebtedness secured by all such Liens shall have been incurred
within the limitations provided in Sections 5.2(a) and 5.2(j) and (B)
immediately before and after the incurrence of such Lien and the related
Indebtedness, no Default or Event of Default shall exist or shall have occurred
and be continuing.
(e) Merger; Etc. Merge or consolidate or amalgamate with any
other Person or take any other action having a similar effect, provided,
however, (i) a Restricted Subsidiary of the Company may merge with the Company,
provided that the Company shall be the surviving corporation, (ii) a Restricted
Subsidiary of the Company may merge, consolidate or amalgamate with another
Restricted Subsidiary of the Company, and (iii) the Company or any Restricted
Subsidiary may merge, consolidate or amalgamate with any other Person in
connection with an Acquisition, provided that such Acquisition is permitted by
Section 5.2(h) and satisfies the conditions described therein and the Company or
such Restricted Subsidiary shall be the surviving corporation.
(f) Disposition of Assets; Etc. Sell, lease, license,
transfer, assign or otherwise dispose of any material portion of its business,
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether in one or a series of transactions, other than inventory
sold in the ordinary course of business upon customary credit terms and sales of
scrap or obsolete material or equipment, provided, however, that this Section
5.2(f) shall not prohibit any such sale, lease, license, transfer, assignment or
other disposition if the aggregate book value (disregarding any write-downs of
such book value other than ordinary depreciation and amortization) of all of the
business, assets, rights, revenues and property disposed of shall be less than
(i) in any fiscal year of the Company, 10% of such aggregate book value of the
Consolidated total assets of the Company and its Restricted Subsidiaries as of
the end of the immediately preceding fiscal year, and (ii) cumulatively after
the date hereof, 25% of such aggregate book value of the Consolidated total
assets of the Company and its Restricted Subsidiaries as of the end of the most
recent fiscal quarter ending prior to the date hereof, and if, in the case of
each of the foregoing clauses (i) and (ii), immediately after such transaction,
no Default or Event of Default shall exist or shall have occurred and be
continuing. Notwithstanding the foregoing, (x) any Restricted Subsidiary may
sell, lease, transfer or otherwise dispose of its assets to the Company or any
Guarantor, (y) the Company or any Restricted Subsidiary may sell, lease,
transfer or otherwise dispose of its fixed assets in excess of the limitation
set forth above so long as such sale is not all or substantially all of its
fixed assets and the proceeds of such sale are used to purchase other property
of a similar nature of at least equivalent value within 180 days of such sale or
(z) the Company or any Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of its assets in excess of the limitation set forth above so
long as the proceeds of such sale
-52-
are used to prepay Advances and permanently reduce the Commitments by such
amount, provided, further, that for purposes of this Section 5.2(f), the sale or
transfer by the A/R Subsidiary of Sale Receivables pursuant to Permitted A/R
Sale Transactions shall not be deemed to be asset transfers, to the extent that
net collections from such Sale Receivables are used by the purchaser thereof to
acquire additional Sale Receivables from the A/R Subsidiary under one or more
subsequent Permitted A/R Sale Transactions, and such net collections are in fact
so used within six months after purchaser's receipt thereof.
(g) Nature of Business. Make or suffer any substantial change
in the nature of its business from that engaged in on the date hereof or engage
in any other businesses other than those in which it is engaged on the date
hereof, which are directly related to the businesses in which it is engaged in
on the date hereof or which are not material in the aggregate.
(h) Investments, Loans and Advances. Purchase or otherwise
acquire any Capital Stock of or other ownership interest in, or debt securities
of or other evidences of Indebtedness of, any other Person; nor acquire all or
any material portion of the assets of any Person; nor make any other
Acquisition; nor make any loan or advance of any of its funds or property or
make any other extension of credit to, or acquire any interest whatsoever in, or
make any other Investment in, any other Person; nor permit any Restricted
Subsidiary to do any of the foregoing; other than:
(i) extensions of trade credit made in the ordinary
course of business on customary credit terms and commission, travel, relocation
and similar advances made to officers and employees in the ordinary course of
business;
(ii) Investments in and to the Company, any Guarantor
or any Foreign Subsidiary that has had at least 65% of its Capital Stock pledged
under a Pledge Agreement;
(iii) Investments in Cash Equivalents;
(iv) Acquisitions, provided each of the following
conditions is satisfied: (A) there is no Default or Event of Default either
before or after such Acquisition, (B) the representations and warranties
contained in this Agreement shall be true and correct as if made on and as of
the date such Acquisition is consummated, both before and after giving effect
thereto, (C) if such Acquisition involves the acquisition of Capital Stock, the
consummation of such Acquisition has been recommended by the board of directors
and management of the target of such Acquisition, and (D) if the total
consideration, cash or non-cash, paid or payable for such Acquisition is greater
than $50,000,000, prior to the consummation of such Acquisition, the Company
shall deliver a satisfactory pro forma covenants compliance certificate to the
Agent and the target of such Acquisition is in the same line of business as
conducted by the Company as of the Effective Date or a line of business similar
thereto or that supports such business;
(v) other Investments described on Schedule 5.2(h)
hereto, but no increase in the amount thereof;
(vi) Investments in Unrestricted Subsidiaries,
provided that immediately after giving effect to such Investment (x) no Event of
Default or Default then exists or would be caused thereby, on a pro forma basis
acceptable to the Agent and (y) the ratio of the consolidated total assets of
the Company and its Restricted Subsidiaries to the consolidated total assets of
the Company and its Subsidiaries, the ratio of the consolidated EBITDA of the
Company and its Restricted Subsidiaries to the consolidated EBITDA of the
Company and its Subsidiaries (based on the most recent four consecutive fiscal
quarters) and the ratio of the total consolidated gross revenues of the Company
and its Restricted
-53-
Subsidiaries to the total consolidated gross revenues of the Company and its
Subsidiaries (based on the most recent four consecutive fiscal quarters) equals
not less than 90%; and
(vii) other Investments (other than Investments in
Unrestricted Subsidiaries) in aggregate outstanding amount not to exceed an
amount equal to 15% of Net Worth - All Subsidiaries.
(i) Negative Pledge/Restrictive Agreement Limitation. Enter
into any agreement with any Person other than the Agent and the Lenders pursuant
hereto which prohibits or limits the ability of (i) the Company or any of its
Restricted Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its assets, rights, revenues or property, real, Personal or mixed,
tangible or intangible, whether now owned or hereafter acquired, except for
Permitted Liens or other restrictions contained in security agreements securing
Indebtedness permitted hereby to the extent such provisions restrict the
transfer of the property subject to such security agreements, and except that
the A/R Subsidiary and the Company may agree, as part of any Permitted A/R Sale
Transaction, not to allow, grant or create any Lien upon any of the Sale
Receivables, or (ii) any Restricted Subsidiary to pay dividends or other
distributions with respect to any of its Capital Stock or to make or repay loans
or advances to the Company or any Restricted Subsidiary or to guarantee the
Advances, other than restrictions and conditions (A) imposed by law or by this
Agreement, (B) existing on the date hereof identified on Schedule 5.2(i)(other
than any modification thereof expanding the scope of any such restriction or
condition), (C) contained in any Indebtedness in excess of $25,000,000 in
aggregate amount and permitted hereunder, provided that such restrictions and
conditions under such Indebtedness are no more restrictive than such
restrictions and conditions in the Senior Note Debt and the holders of such
Indebtedness become parties to the Intercreditor Agreement or (D) imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing such
Indebtedness.
(j) Indebtedness and Contingent Liabilities of Non-Guarantors
and Secured Indebtedness. Create, incur, assume or in any manner become liable
in respect of or suffer to exist, any Indebtedness or Contingent Liabilities of
any Restricted Subsidiaries that are not Guarantors (other than the Canadian
Syndicated Loans) or Indebtedness secured by Liens permitted by Section
5.2(d)(ix) if the aggregate amount of all of the foregoing exceeds an amount
equal to 15% of Net Worth - All Subsidiaries.
(k) Dividends and Other Restricted Payments Make, pay, declare
or authorize any dividend, payment or other distribution in respect of any class
of its Capital Stock or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any shares of its Capital Stock if a Default or Event of Default
exists or would be caused thereby. The Company will not issue any Disqualified
Stock.
(l) Transactions with Affiliates. Make any payment to, or
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliates (each of the foregoing, an
"Affiliate Transaction") unless such Affiliate Transaction is on terms that are
no less favorable to the Company or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person.
(m) Financial Contracts. Enter into or remain a party to any
Financial Contract for purposes of financial speculation, provided that hedging
by the Company or any of its
-54-
Restricted Subsidiaries of their own interest rate or foreign currency exposure
shall not be deemed financial speculation.
(n) Permitted A/R Sale Obligations. Permit or suffer the
aggregate A/R Sale Obligations to exceed $50,000,000 at any time.
5.3 Additional Covenants. If at any time a Borrower shall enter into or
be a party to any instrument or agreement, including all such instruments or
agreements in existence as of the date hereof and all such instruments or
agreements entered into after the date hereof, relating to or amending any
provisions applicable to any of its Indebtedness which in the aggregate,
together with any related Indebtedness, exceeds $25,000,000, which includes
covenants or defaults not substantially provided for in this Agreement or more
favorable to the lender or lenders thereunder than those provided for in this
Agreement, then such Borrower shall promptly so advise the Agent and the
Lenders. Thereupon, if the Agent or the Required Lenders shall request, upon
notice to such Borrower, the Agent and the Lenders shall enter into an amendment
to this Agreement or an additional agreement (as the Agent may request),
providing for substantially the same covenants and defaults as those provided
for in such instrument or agreement to the extent required and as may be
selected by the Agent.
ARTICLE VI.
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived by the Required Lenders pursuant to Section 8.1:
(a) Nonpayment of Principal. A Borrower shall fail to pay when due any
principal of the Advances or any reimbursement obligation under Section 3.3; or
(b) Nonpayment of Interest. A Borrower shall fail to pay when due any
interest or any fees or any other amount payable hereunder and such failure
shall remain unremedied for five days; or
(c) Misrepresentation. Any representation or warranty made by a
Borrower or any Guarantor in this Agreement, any other Loan Document or any
other certificate, report, financial statement or other document furnished by or
on behalf of a Borrower or any Guarantor in connection with this Agreement shall
prove to have been incorrect in any material respect when made or deemed made;
or
(d) Certain Covenants. A Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.1(d)(i) or 5.2 hereof; or
(e) Other Defaults. A Borrower or any Guarantor shall fail to perform
or observe any other term, covenant or agreement contained in this Agreement or
any other Loan Document, and any such failure shall remain unremedied for 30
calendar days (or 10 days in the case of any failure to perform or observe the
covenants contained in Sections 5.2(d)(ii), (iii) or (iv)) after notice thereof
shall have been given to such Borrower or such Guarantor, as the case may be, by
the Agent; or
(f) Cross Default. (i) The Company or any of its Restricted
Subsidiaries shall fail to pay any part of the principal of, the premium, if
any, or the interest on, or any other payment of money due under any of its
Indebtedness or A/R Sale Obligations (other than Indebtedness hereunder), beyond
any
-55-
period of grace provided with respect thereto, which individually or together
with other such Indebtedness or A/R Sale Obligations as to which any such
failure exists has an aggregate outstanding principal amount in excess of
$5,000,000; (ii) the Company or any of its Restricted Subsidiaries fails to
perform or observe any other term, covenant or agreement contained in any
agreement, document or instrument evidencing or securing any Indebtedness or A/R
Sale Obligations (other than Indebtedness hereunder), beyond any period of grace
provided with respect thereto, which individually or together with other such
Indebtedness or A/R Sale Obligations as to which any such failure exists has an
aggregate outstanding principal amount in excess of $5,000,000, or under which
any such Indebtedness or A/R Sale Obligations was issued or created, or any
other event shall occur or condition exist, the effect of which failure to
observe or perform or the occurrence of such event or condition is to cause the
holder or holders of such Indebtedness or A/R Sale Obligations to become due
prior to its stated maturity or declared to be due and payable or required to be
prepaid or repurchased prior to the stated maturity therefor; or (iii) the
Company or any of its Restricted Subsidiaries fails to perform or observe any
other term, covenant or agreement contained in any agreement, document or
instrument evidencing or securing any Indebtedness or A/R Sale Obligations
(other than Indebtedness hereunder), beyond any period of grace provided with
respect thereto, which individually or together with other such Indebtedness or
A/R Sale Obligations as to which any such failure exists has an aggregate
outstanding principal amount in excess of $15,000,000, or under which any such
Indebtedness or A/R Sale Obligations was issued or created, or any other event
shall occur or condition exist, the effect of which failure to observe or
perform or the occurrence of such event or condition is to permit the holder or
holders of such Indebtedness or A/R Sale Obligations to cause such Indebtedness
or A/R Sale Obligations to become due prior to its stated maturity or declared
to be due and payable or required to be prepaid or repurchased prior to the
stated maturity thereof; provided, however, that an Event of Default shall not
be deemed to have occurred under this Section 6.1(f) if any of the foregoing
events occurs only with respect to Restricted Subsidiaries which are not wholly
owned Restricted Subsidiaries of the Company or Guarantors and if all such
non-wholly owned Restricted Subsidiaries do not, if considered in the aggregate
as a single Subsidiary, constitute a Significant Subsidiary, but the Company
shall provide notice to the Agent of the occurrence of any such event described
in this proviso; or
(g) Judgments. One or more judgments or orders for the payment of money
in an aggregate amount of $5,000,000 shall be rendered against the Company or
any of its Restricted Subsidiaries, or any other judgment or order (whether or
not for the payment of money) shall be rendered against or shall affect the
Company or any of its Restricted Subsidiaries which causes or could cause a
Material Adverse Effect, and either (i) such judgment or order shall have
remained unsatisfied or uninsured for a period of 30 days and the Company or
such Restricted Subsidiary shall not have taken action necessary to stay
enforcement thereof by reason of pending appeal or otherwise, prior to the
expiration of the applicable period of limitations for taking such action or, if
such action shall have been taken, a final order denying such stay shall have
been rendered, or (ii) enforcement proceedings shall have been commenced by any
creditor upon any such judgment or order; provided, however, that an Event of
Default shall not be deemed to have occurred under this Section 6.1(g) if any of
the foregoing events occurs only with respect to Restricted Subsidiaries which
are not wholly owned Restricted Subsidiaries of the Company or Guarantors and if
all such non wholly owned Restricted Subsidiaries do not, if considered in the
aggregate as a single Subsidiary, constitute a Significant Subsidiary; or
(h) ERISA. The occurrence of a Reportable Event that results in or
could result in liability in excess of $5,000,000 of the Company, any Restricted
Subsidiary of the Company or their ERISA Affiliates to the PBGC or to any Plan
and such Reportable Event is not corrected within thirty (30) days after the
occurrence thereof; or the occurrence of any Reportable Event which could
constitute grounds for termination of any Plan of the Company, its Restricted
Subsidiaries or their ERISA Affiliates by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer any such
-56-
Plan and such Reportable Event is not corrected within thirty (30) days after
the occurrence thereof; or the filing by the Company, any Restricted Subsidiary
of the Company or any of their ERISA Affiliates of a notice of intent to
terminate a Plan or the institution of other proceedings to terminate a Plan; or
the Company, any Restricted Subsidiary of the Company or any of their ERISA
Affiliates shall fail to pay when due any liability to the PBGC or to a Plan; or
the PBGC shall have instituted proceedings to terminate, or to cause a trustee
to be appointed to administer, any Plan of the Company, its Restricted
Subsidiaries or their ERISA Affiliates; or any Person engages in a Prohibited
Transaction with respect to any Plan which results in or could result in
liability of the Company, any Restricted Subsidiary of the Company, any of their
ERISA Affiliates, any Plan of the Company, its Restricted Subsidiaries or their
ERISA Affiliates or fiduciary of any such Plan; or failure by the Company, any
Restricted Subsidiary of the Company or any of their ERISA Affiliates to make a
required installment or other payment to any Plan within the meaning of Section
302(f) of ERISA or Section 412(n) of the Code that results in or could result in
liability in excess of $5,000,000 of the Company, any Restricted Subsidiary of
the Company or any of their ERISA Affiliates to the PBGC or any Plan; or the
withdrawal of the Company, any of its Restricted Subsidiaries or any of their
ERISA Affiliates from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(9a)(2) of ERISA; or the Company, any of its
Restricted Subsidiaries or any of their ERISA Affiliates becomes an employer
with respect to any Multiemployer Plan without the prior written consent of the
Required Lenders; provided, however, that this Section 6.1(h) shall apply only
to events or occurrences which, when aggregated with all other events and
occurrences described in this Section 6.1(h), could result in liability to the
Company or its Restricted Subsidiaries greater than $5,000,000; or
(i) Insolvency, Etc. The Company or any of its Restricted Subsidiaries
shall be dissolved or liquidated (or any judgment, order or decree therefor
shall be entered), or shall generally not pay its debts as they become due, or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors, or shall institute, or there
shall be instituted against the Company or any of its Restricted Subsidiaries,
any proceeding or case seeking to adjudicate it a bankrupt or insolvent or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief or protection of debtors or
seeking the entry of an order for relief, or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its assets, rights, revenues or property, and, if such proceeding is
instituted against the Company or such Restricted Subsidiary and is being
contested by the Company or such Restricted Subsidiary, as the case may be, in
good faith by appropriate proceedings, such proceeding shall remain undismissed
or unstayed for a period of 60 days; or the Company or such Restricted
Subsidiary shall take any action (corporate or other) to authorize or further
any of the actions described above in this subsection; provided, however, that
an Event of Default shall not be deemed to have occurred under this Section
6.1(i) if any of the foregoing events occurs only with respect to Restricted
Subsidiaries which are not wholly owned Subsidiaries of the Company or
Guarantors and if all such non wholly owned Restricted Subsidiaries do not, if
considered in the aggregate as a single Subsidiary, constitute a Significant
Subsidiary; or
(j) Change of Control. The occurrence of any Change of Control; or
(k) Guaranties. Any Guaranty shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the invalidity
or unenforceability of any Guaranty, or any Guarantor shall fail to comply with
any of the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any Guaranty to
which it is a party, or shall give notice to such effect; or
-57-
(l) Pledge Agreements. Any Pledge Agreement shall for any reason fail
to create a valid and perfected first priority security interest in any
collateral purported to be covered thereby, or any Pledge Agreement shall fail
to remain in full force or effect or any action shall be taken to discontinue or
to assert the invalidity or unenforceability of any Pledge Agreement, or any
Obligor shall fail to comply with any of the terms or provisions of any Pledge
Agreement.
6.2 Remedies. (a) Upon the occurrence and during the continuance of any
Event of Default, the Agent upon being directed to do so by the Required
Lenders, shall by notice to the Borrowers (i) terminate the Commitments or (ii)
declare the outstanding principal of, and accrued interest on, the Notes and
Advances and all other amounts owing under this Agreement to be immediately due
and payable, or (iii) demand immediate delivery of cash collateral, and the
Borrowers agree to deliver such cash collateral upon demand, in an amount equal
to the maximum amount that may be available to be drawn at any time prior to the
stated expiry of all outstanding Letters of Credit, or any one or more of the
foregoing, whereupon the Commitments shall terminate forthwith and all such
amounts, including cash collateral, shall become immediately due and payable,
provided that in the case of any event or condition described in Section 6.1(i)
with respect to the Borrowers, the Commitments shall automatically terminate
forthwith and all such amounts, including cash collateral, shall automatically
become immediately due and payable without notice; in all cases without demand,
presentment, protest, diligence, notice of dishonor or other formality, all of
which are hereby expressly waived. Such cash collateral delivered in respect of
outstanding Letters of Credit shall be deposited in a special cash collateral
account to be held by the Agent as collateral security for the payment and
performance of the Borrowers' obligations under this Agreement to the Lenders
and the Agent.
(b) The Agent upon being directed to do so by the Required
Lenders, shall, in addition to the remedies provided in Section 6.2(a), exercise
and enforce any and all other rights and remedies available to it or the
Lenders, whether arising under the Loan Documents or under applicable law, in
any manner deemed appropriate by the Agent, including suit in equity, action at
law, or other appropriate proceedings, whether for the specific performance (to
the extent permitted by law) of any covenant or agreement contained in the Loan
Documents or in aid of the exercise of any power granted in the Loan Documents.
(c) Upon the occurrence and during the continuance of any
Event of Default, each Lender may at any time and from time to time exercise any
of its rights of set off or bankers lien that it may possess by common law or
statute without prior notice to the Borrowers, provided that each Lender may
also set off against any deposit whether or not it is then matured. Each Lender
agrees to promptly notify the Borrowers after any such setoff and application,
provided that the failure to give such notice shall not effect the validity of
such setoff and application. The rights of such Lender under this Section 6.2(c)
are in addition to other rights and remedies which such Lender may have.
(d) All proceeds of any realization on the collateral pursuant
to the Pledge Agreements and any payments received by the Agent or any Lender
pursuant to the Guaranties subsequent to and during the continuance of any Event
of Default, subject to any Intercreditor Agreement, shall be allocated and
distributed by the Agent as follows:
(i) First, to the payment of all reasonable costs and
expenses, including without limitation all reasonable attorneys' fees, of the
Agent in connection with the enforcement of the Pledge Agreement and the
Guaranties and otherwise administering this Agreement;
(ii) Second, to the payment of all fees required to
be paid under any
-58-
Loan Document including facility fees, owing to the Lenders and Agent pursuant
to the Lender Obligations on a pro rata basis in accordance with the Lender
Obligations consisting of fees owing to the Lenders and Agent under the Lender
Obligations, for application to payment of such liabilities;
(iii) Third, to the Lenders and Agent on a pro rata
basis in accordance with the Lender Obligations consisting of interest owing to
the Lenders and Agent under the Lender Obligations, and obligations and
liabilities relating to Rate Hedging Agreements owing to the Lenders and the
Agent under the Lender Obligations for application to payment of such
liabilities;
(iv) Fourth, to the Lenders and the Agent on a pro
rata basis in accordance with the Lender Obligations consisting of principal
(including without limitation any cash collateral for any outstanding Letters of
Credit), for application to payment of such liabilities;
(v) Fifth, to the payment of any and all other
amounts owing to the Lenders and the Agent and secured by the Pledge Agreements
on a pro rata basis in accordance with the total amount of such Indebtedness
owing to each of the Lenders and the Agent, for application to payment of such
liabilities; and
(vi) Sixth, to the applicable Borrower, their
Restricted Subsidiaries or such other Person as may be legally entitled thereto.
For the purposes of the above payments and distributions, the full amount of
Lender Obligations on account of any Letter of Credit then outstanding but not
drawn upon shall be deemed to be then due and owing. Amounts distributable to
the Lenders or Agent on account of such Lender Obligations under such Letters of
Credit shall be deposited in a separate collateral account in the name of and
under the control of the Agent and held by the Agent first as security for such
Letter of Credit Lender Obligations and then as security for all other Lender
Obligations and the amount so deposited shall be applied to the Letter of Credit
Lender Obligations at such times and to the extent that such Letter of Credit
Lender Obligations become absolute liabilities and if and to the extent that the
Letter of Credit Lender Obligations fail to become absolute Lender Obligations
because of the expiration or termination of the underlying Letters of Credit
without being drawn upon then such amounts shall be applied to the remaining
Lender Obligations in the order provided in this Section 6.2(d). The Company
hereby grants to the Agent, for the benefit of the Lenders and Agent, a lien and
security interest in all such funds deposited in such separate collateral
account, as security for all the Lender Obligations as set forth above.
(e) Notwithstanding anything herein to the contrary, no
payments of principal, interest or fees delivered to the Agent for the account
of any Defaulting Lender shall be delivered by the Agent to such Defaulting
Lender. Instead, such payments shall, for so long as such Defaulting Lender
shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby
authorized and directed by all parties hereto to hold such funds in escrow and
apply such funds as follows:
(i) First, if applicable to any payments due from
such Defaulting Lender to the Agent, and
(ii) Second, Loans required to be made by such
Defaulting Lender on any borrowing date to the extent such Defaulting Lender
fails to make such Loans.
Notwithstanding the foregoing, upon the termination of all Commitments and the
payment and performance of all of the Advances and other obligations owing
hereunder (other than those owing to a Defaulting
-59-
Lender), any funds then held in escrow by the Agent pursuant to the preceding
sentence shall be distributed to each Defaulting Lender, pro rata in proportion
to amounts that would be due to each Defaulting Lender but for the fact that it
is a Defaulting Lender.
ARTICLE VII.
THE AGENT AND THE LENDERS
7.1 Appointment; Nature of Relationship. JPMCB is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the
"Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties expressly set forth herein and in the
other Loan Documents. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article VII. Notwithstanding the
use of the defined term "Agent," it is expressly understood and agreed that the
Agent shall not have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is merely acting as
the contractual representative of the Lenders with only those duties as are
expressly set forth in this Agreement and the other Loan Documents. In its
capacity as the Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of the term "secured party"
as defined in the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the Lenders hereby
agrees to assert no claim against the Agent on any agency theory or any other
theory of liability for breach of fiduciary duty, all of which claims each
Lender hereby waives.
7.2 Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
7.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrowers, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
7.4 No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (a) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any Obligor under any Loan Document, including, without
limitation, any agreement by an Obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article II; (d) the
existence or possible existence of any Default or Event of Default; (e) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(f) the value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of any Borrower or any
Guarantor of any of the Lender Obligations or of any such Borrowers' or any such
Guarantor's respective Subsidiaries. The
-60-
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrowers to the Agent at such time, but is
voluntarily furnished by the Borrowers to the Agent (either in its capacity as
Agent or in its individual capacity).
7.5 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
7.6 Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
7.7 Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document believed by it to be genuine and correct and to have been
signed or sent by the proper Person or Persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which counsel may be
employees of the Agent.
7.8 Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrowers for which the Agent is entitled to reimbursement by
the Borrowers under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents
(including, without limitation, for any expenses incurred by the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Agent. The obligations of the Lenders under this
Section 7.8 shall survive payment of the Lender Obligations and termination of
this Agreement.
-61-
7.9 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless
the Agent has received written notice from a Lender or the Company referring to
this Agreement describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give prompt notice thereof to the Lenders.
7.10 Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with a Borrower or
any of its Subsidiaries in which such Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
7.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrowers and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger 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 this
Agreement and the other Loan Documents.
7.12 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrowers and the Lenders, a successor Agent, provided that, if no
Default or Event of Default has occurred and is continuing, such appointment
shall be made in consultation with the Borrowers. If no successor Agent shall
have been so appointed by the Required Lenders within thirty days after the
resigning Agent's giving notice of its intention to resign, then the resigning
Agent may appoint, on behalf of the Borrowers and the Lenders, a successor
Agent. Notwithstanding the previous sentence, the Agent may at any time without
the consent of the Borrowers or any Lender, appoint any of its Affiliates which
is a commercial bank as a successor Agent hereunder. If the Agent has resigned
or been removed and no successor Agent has been appointed, the Lenders may
perform all the duties of the Agent hereunder and the Borrowers shall make all
payments in respect of the Lender Obligations to the applicable Lender and for
all other purposes shall deal directly with the Lenders. No successor Agent
shall be deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a commercial bank
having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Agent. Upon
the effectiveness of the resignation or removal of the Agent, the resigning or
removed Agent shall be discharged from its duties and obligations hereunder and
under the Loan Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article VII shall continue in effect for the
benefit of such
-62-
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents. In the event
that there is a successor to the Agent by merger, or the Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 7.12, then the
term "Prime Rate" as used in this Agreement shall mean the base rate, prime rate
or other analogous rate of the new Agent.
7.13 Delegation to Affiliates. The Borrowers and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under the Loan Documents.
7.14 Sharing of Payments. The Lenders agree among themselves that, in
the event that any Lender shall obtain payment in respect of any Advance or any
other obligation owing to the Lenders under this Agreement (other than payments
received pursuant to Section 3.7, payments of principal or interest on
Bid-Option Loans at a time when no Event of Default or Default is continuing,
pro rata payments of principal or interest to all Canadian Lenders on Canadian
Syndicated Loans at a time when no Event of Default or Default is continuing and
pro rata payments of principal or interest to all U.S. Lenders on U.S.
Syndicated Loans at a time when no Event of Default or Default is continuing)
through the exercise of a right of set-off, banker's lien, counterclaim or
otherwise in excess of its ratable share of payments received by all of the
Lenders on account of the Advances and other obligations (or if no Advances are
outstanding, ratably according to the respective amounts of the Commitments),
such Lender shall promptly purchase from the other Lenders participations in
such Advances and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all of the
Lenders share such payment in accordance with such ratable shares. The Lenders
further agree among themselves that if payment to a Lender obtained by such
Lender through the exercise of a right of set-off, banker's lien, counterclaim
or otherwise as aforesaid shall be rescinded or must otherwise be restored, each
Lender which shall have shared the benefit of such payment shall, by repurchase
of participations theretofore sold, return its share of that benefit to each
Lender whose payment shall have been rescinded or otherwise restored. The
Borrowers agree that any Lender so purchasing such a participation may, to the
fullest extent permitted by law, exercise all rights of payment, including
set-off, banker's lien or counterclaim, with respect to such participation as
fully as if such Lender were a holder of such Advance or other obligation in the
amount of such participation. The Lenders further agree among themselves that,
in the event that amounts received by the Lenders and the Agent hereunder are
insufficient to pay all such obligations or insufficient to pay all such
obligations when due, the fees and other amounts owing to the Agent in such
capacity shall be paid therefrom before payment of obligations owing to the
Lenders under this Agreement. Except as otherwise expressly provided in this
Agreement, if any Lender or the Agent shall fail to remit to the Agent or any
other Lender an amount payable by such Lender or the Agent to the Agent or such
other Lender pursuant to this Agreement on the date when such amount is due,
such payments shall be made together with interest thereon for each date from
the date such amount is due until the date such amount is paid to the Agent or
such other Lender at a rate per annum equal to the rate at which borrowings are
available to the payee in its overnight federal funds market. It is further
understood and agreed among the Lenders and the Agent that if the Agent or any
Lender shall engage in any other transactions with the Borrowers and shall have
the benefit of any collateral or security therefor which does not expressly
secure the obligations arising under this Agreement except by virtue of a
so-called dragnet clause or comparable provision, the Agent or such Lender shall
be entitled to apply any proceeds of such collateral or security first in
respect of the obligations arising in connection with such other transaction
before application to the obligations arising under this Agreement.
-63-
7.15 Execution of Collateral Documents. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Obligors on their behalf the
Pledge Agreements and all related documents or instruments as shall be necessary
or appropriate to effect the purposes of the Pledge Agreements. The Lenders
further empower and authorize the Agent to execute and deliver on their behalf
the Intercreditor Agreement and all related documents or instruments as shall be
necessary or appropriate to effect the purposes of the Intercreditor Agreement,
provided that the form of the Intercreditor Agreement has been approved by the
Required Lenders, and each Lender shall be bound by the terms and provisions of
the Intercreditor Agreement so executed by the Agent.
7.16 Collateral Releases. The Lenders hereby empower and authorize the
Agent to execute and deliver to the Obligors on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of collateral which shall be permitted by the terms hereof, including
without limitation any collateral held under the Pledge Agreements which is
permitted to be sold under the terms of this Agreement, or of any other Loan
Document or which shall otherwise have been approved by the Required Lenders
(or, if required, all of the Lenders) in writing.
7.17 Co-Agents, Syndication Agent, Documentation Agents, etc. Neither
any of the Lenders identified in this Agreement or otherwise as a "co-agent" nor
the Syndication Agent nor the Documentation Agents shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
such Lenders shall have or be deemed to have a fiduciary relationship with any
Lender. Each Lender hereby makes the same acknowledgments with respect to such
Lenders as it makes with respect to the Agent in Section 7.11.
ARTICLE VIII.
MISCELLANEOUS
8.1 Amendments, Etc. (a) No amendment, modification, termination or
waiver of any provision of this Agreement nor any consent to any departure
therefrom shall be effective unless the same shall be in writing and signed by
the Borrowers and the Required Lenders and, to the extent any rights or duties
of the Agent may be affected thereby, the Agent, and to the extent the
obligations of the Canadian Lenders are affected thereby, the Required Canadian
Lenders, provided, however, that no such amendment, modification, termination,
waiver or consent shall, without the consent of the Agent and each Lender
affected, (i) authorize or permit the extension of time for, or any reduction of
the amount of, any payment of the principal of, or interest on, the Notes or any
Letter of Credit reimbursement obligation, or any fees or other amount payable
hereunder, (ii) except as provided herein, increase the respective Commitment of
any Lender or modify the provisions of this Section regarding the taking of any
action under this Section or the definition of Required Lenders or Required
Canadian Lenders, (iii) provide for the discharge of any Guarantor except as a
result of a transaction otherwise permitted by this Agreement, (iv) change
Section 7.14 in a manner that would alter the pro rata sharing of payments
required thereby, or (v) provide for the release of all or substantially all of
the collateral subject to the Pledge Agreements except as a result of a
transaction otherwise permitted by this Agreement.
(b) Any such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
-64-
(c) Notwithstanding anything herein to the contrary, no
Defaulting Lender shall be entitled to vote (whether to consent or to withhold
its consent) with respect to any amendment, modification, termination or waiver
of any provision of this Agreement or any departure therefrom or any direction
from the Lenders to the Agent, and, for purposes of determining the Required
Lenders at any time when any Lender is in default under this Agreement, the
Commitments and Advances of such defaulting Lenders shall be disregarded.
(d) In addition to the above, the Company may change the
Canadian Borrower (provided that the proposed substitute Canadian Borrower
qualifies as a Canadian Borrower under the definition of such term) hereto at
any time upon (i) the execution and delivery by the Company, the existing
Canadian Borrower, the new Canadian Borrower and the Agent of a joinder and
assumption agreement in form satisfactory to the Agent providing for such
Restricted Subsidiary to become the Canadian Borrower, (ii) the execution and
delivery by the Company of a Guaranty, or the confirmation of the existing
Guaranty, with respect to such new Canadian Borrower, (iii) the delivery to the
Agent of such legal opinions, resolutions and corporate documents as requested
by the Agent, (iv) the delivery of such other documents with respect thereto as
the Agent shall reasonably request and (v) the written approval of the Agent.
Upon the substitution of a new Canadian Borrower hereunder and the payment in
full of all Advances and all other obligations and liabilities owing hereunder
or any other Loan Document by the existing Canadian Borrower (or the assumption
thereof by the new Canadian Borrower in a manner acceptable to the Agent), the
existing Canadian Borrower shall no longer be deemed a Borrower hereunder.
8.2 Notices. (a) Except as otherwise provided in Section 8.2(c) hereof,
all notices and other communications hereunder shall be sent to the Borrowers at
2801 East Beltline NE, Grand Rapids, Michigan 49505, Attention: Chief Financial
Officer, Facsimile No. 616-364-3136, to the Agent and the Lenders at the
respective addresses and numbers for notices set forth on the signatures pages
hereof, or to such other address as may be designated by the Borrowers, the
Agent or any Lender by notice to the other parties hereto. All notices and other
communications shall be deemed to have been given at the time of actual delivery
thereof to such address, or if sent by certified or registered mail, postage
prepaid, to such address, on the third day after the date of mailing, or if
deposited prepaid with Federal Express or other nationally recognized overnight
delivery service prior to the deadline for next day delivery, on the Business
Day next following such deposit, provided, however, that notices to the Agent
shall not be effective until received.
(b) Notices by any Borrower to the Agent with respect to
terminations or reductions of the Commitments pursuant to Section 2.4, requests
for Advances pursuant to Section 2.6, requests for continuations or conversions
of Loans pursuant to Section 2.9 and notices of prepayment pursuant to Section
3.1 shall be irrevocable and binding on such Borrower.
(c) Any notice to be given by the Borrowers to the Agent
pursuant to Sections 2.6 or 2.9 and any notice to be given by the Agent or any
Lender hereunder, may be given by telephone, and all such notices given by the
Borrowers must be immediately confirmed in writing in the manner provided in
Section 8.2(a). Any such notice given by telephone shall be deemed effective
upon receipt thereof by the party to whom such notice is to be given.
8.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or any Lender, nor any delay or failure on the part of the
Agent or any Lender in exercising any right, power or privilege hereunder shall
operate as a waiver of such right, power or privilege or otherwise prejudice the
Agent's or such Lender's rights and remedies hereunder; nor shall any single or
partial exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. No right
-65-
or remedy conferred upon or reserved to the Agent or any Lender under this
Agreement or the Loan Documents is intended to be exclusive of any other right
or remedy, and every right and remedy shall be cumulative, and in addition to
every other right or remedy granted thereunder or now or hereafter existing
under any applicable law. Every right and remedy granted by the Loan Documents
or by applicable law to the Agent or any Lender may be exercised from time to
time and as often as may be deemed expedient by the Agent or any Lender and,
unless contrary to the express provisions of the Loan Documents, irrespective of
the occurrence or continuance of any Default or Event of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of the Borrowers or any
Guarantor made herein, in any Guaranty or in any certificate, report, financial
statement or other document furnished by or on behalf of the Borrowers or any
Guarantor in connection with this Agreement shall be deemed to be material and
to have been relied upon by the Lenders, notwithstanding any investigation
heretofore or hereafter made by any Lender or on such Lender's behalf, and those
covenants and agreements of the Borrowers set forth in Sections 3.7, 3.9 and 8.5
hereof shall survive the repayment in full of the Advances and the termination
of the Commitments for a period of one year from such repayment or termination.
8.5 Expenses. (a) The Borrowers agree to pay, or reimburse the Agent
for the payment of, on demand, (i) the reasonable fees and expenses of counsel
to the Agent, including without limitation the reasonable fees and expenses of
Dickinson Wright PLLC in connection with the preparation, execution, delivery
and administration of the Loan Documents and the consummation of the
transactions contemplated hereby, and in connection with advising the Agent as
to its rights and responsibilities with respect thereto, and in connection with
any amendments, waivers or consents in connection therewith, and (ii) all stamp
and other taxes and fees payable or determined to be payable in connection with
the execution, delivery, filing or recording of the Loan Documents and the
consummation of the transactions contemplated hereby, and any and all
liabilities with respect to or resulting from any delay in paying or omitting to
pay such taxes or fees, and (iii) all reasonable costs and expenses of the Agent
and any Lender (including without limitation reasonable fees and expenses of
counsel, including without limitation counsel who are employees of the Agent or
any Lender, and whether incurred through negotiations, legal proceedings or
otherwise) in connection with any Default or Event of Default or the enforcement
of, or the exercise or preservation of any rights under, the Loan Documents, and
(iv) all reasonable costs and expenses of the Agent and the Arranger, whether
incurred prior to or subsequent to the Effective Date, in investigation,
preparation, negotiation, documentation, syndication, administration and
collection, for the account of the Borrowers, including without limitation
expenses of and fees for advisors and professionals engaged by the Agent or the
Arranger, and (v) all reasonable costs and expenses of the Agent and the Lenders
(including reasonable fees and expenses of counsel) in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Agent from paying any amount
under, or otherwise relating in any way to, any Letter of Credit and any and all
costs and expenses which any of them may incur relative to any payment under any
Letter of Credit.
(b) Each Borrower hereby indemnifies and agrees to hold
harmless the Lenders and the Agent, and their respective officers, directors,
employees, agents and advisors, harmless from and against any and all claims,
damages, losses, liabilities, costs or expenses of any kind or nature whatsoever
which the Lenders or the Agent or any such Person may incur or which may be
claimed against any of them by reason of or in connection with any Letter of
Credit issued for the account of such Borrower, and neither any Lender nor the
Agent or any of their respective officers, directors, employees or agents shall
be liable or responsible for: (i) the use which may be made of any Letter of
Credit or for any acts or omissions of any beneficiary in connection therewith;
(ii) the validity, sufficiency or genuineness of documents or of any endorsement
thereon, even if such documents should in fact prove to be in any or all
-66-
respects invalid, insufficient, fraudulent or forged; (iii) payment by the Agent
to the beneficiary under any Letter of Credit against presentation of documents
which do not comply with the terms of any Letter of Credit, including failure of
any documents to bear any reference or adequate reference to such Letter of
Credit; (iv) any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit; or (v) any other event or circumstance
whatsoever arising in connection with any Letter of Credit; provided, however,
that the applicable Borrower shall not be required to indemnify the Lenders and
the Agent and such other Persons, and the Agent shall be liable to the
applicable Borrower to the extent, but only to the extent, of any direct, as
opposed to consequential or incidental, damages suffered by the applicable
Borrower which were caused by (A) the Agent's wrongful dishonor of any Letter of
Credit after the presentation to it by the beneficiary thereunder of a draft or
other demand for payment and other documentation strictly complying with the
terms and conditions of such Letter of Credit, to the extent, but only to the
extent, that such dishonor constitutes gross negligence or willful misconduct of
the Agent as determined by a final non-appealable order of a court of competent
jurisdiction, or (B) the Agent's payment to the beneficiary under any Letter of
Credit against presentation of documents which do not comply with the terms of
the Letter of Credit, to the extent, but only to the extent, that such payment
constitutes gross negligence or willful misconduct of the Agent as determined by
a final non-appealable order of a court of competent jurisdiction. It is
understood that in making any payment under a Letter of Credit the Agent will
rely on documents presented to it under such Letter of Credit as to any and all
matters set forth therein without further investigation and regardless of any
notice or information to the contrary, and such reliance and payment against
documents presented under a Letter of Credit substantially complying with the
terms thereof shall not be deemed gross negligence or willful misconduct of the
Agent in connection with such payment.
(c) Each Borrower agrees to indemnify each Lender, the Agent
and each of their respective officers, directors, employees, agents and advisors
(collectively, the "Indemnified Parties") and hold each Indemnified Party
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind at any time, including, without limitation, the reasonable
fees and disbursements of counsel, which may be incurred by any Indemnified
Party in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnified Party shall be designated a party
thereto) (collectively, the "Indemnified Liabilities") at any time relating to
(whether before or after the execution of this Agreement) any of the following:
(i) any actual or proposed use of the Advances
hereunder by the Borrower or any of its Subsidiaries or any transaction financed
or to be financed in whole or in part, directly or indirectly, with the proceeds
of any Advance;
(ii) the entering into and performance of this
Agreement and any other Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower as the result of
any determination by any Lender not to make any Advance);
(iii) any investigation, litigation or proceeding
related to any Acquisition or proposed Acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any Person or to
the issuance of, or any other matter relating to, any Subordinated Debt, whether
or not any Indemnified Party is a party thereto;
(iv) any investigation, litigation or proceeding
related to any environmental cleanup, audit, compliance or other matter relating
to any release by such Borrower or any of its Subsidiaries of any hazardous
material or any violations of Environmental Laws; or
-67-
(v) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of any
hazardous material (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Law), regardless
of whether caused by, or within the control of, the Borrower or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of the Borrower conducted subsequent to a foreclosure on
such property by any Indemnified Party or by reason of the relevant Indemnified
Party's gross negligence or willful misconduct or breach of this Agreement, and
if and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The Borrower shall be obligated to indemnify
the Indemnified Parties for all Indemnified Liabilities subject to and pursuant
to the foregoing provisions, regardless of whether the Borrower or any of its
Subsidiaries had knowledge of the facts and circumstances giving rise to such
Indemnified Liability; or
(vi) any other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby or the enforcement of any of the terms of the
Loan Documents or of any such other documents.
Provided that no Indemnified Party shall have the right to be indemnified
hereunder for its own gross negligence or willful misconduct as determined by a
final, non-appealable judgment of a court of competent jurisdiction. The
obligations under this Section 8.5 shall survive payment of the Lender
Obligations and termination of this Agreement.
8.6 Successors and Assigns. (a) This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns, provided that the Borrowers may not, without the prior consent of
the Lenders, assign their respective rights or obligations hereunder or under
the Loan Documents and the Lenders shall not be obligated to make any Advance
hereunder to any entity other than the Borrowers.
(b) Any Lender may sell to any financial institution or
institutions, and such financial institution or institutions may further sell, a
participation interest (undivided or divided) in, the Loans and such Lender's
rights and/or obligations under the Loan Documents, and to the extent of that
participation interest such participant or participants shall have the same
rights and benefits against the Borrowers under Section 3.7, 3.9 and 6.2(c) as
it or they would have had if such participant or participants were the Lender
making the Loans to the Borrowers hereunder, provided, however, that (i) such
Lender's obligations under this Agreement shall remain unmodified and fully
effective and enforceable against such Lender, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of its Notes and Advances
for all purposes of this Agreement, (iv) the Borrowers, the Agent 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, (v)
such Lender shall not grant to its participant (other than any participant which
is an Affiliate of such Lender) any rights to consent or withhold consent to any
action taken by such Lender or the Agent under this Agreement other than action
requiring the consent of all of the Lenders hereunder, and (vi) no participant
shall be entitled to receive any greater amount pursuant to Sections 3.5, 3.7,
3.9 or 6.2(c) than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such participant had no such transfer occurred.
-68-
(c) The Agent from time to time in its sole discretion may
appoint agents for the purpose of servicing and administering this Agreement and
the transactions contemplated hereby and enforcing or exercising any rights or
remedies of the Agent provided under the Loan Documents or otherwise. In
furtherance of such agency, the Agent may from time to time direct that the
Borrowers provide notices, reports and other documents contemplated by this
Agreement (or duplicates thereof) to such agent. Each Borrower hereby consents
to the appointment of such agent and agrees to provide all such notices, reports
and other documents and to otherwise deal with such agent acting on behalf of
the Agent in the same manner as would be required if dealing with the Agent
itself.
(d) Each Lender may, with the prior consent of the Borrowers
(which consent may not be unreasonably withheld or delayed and shall not be
required upon the occurrence and during the continuance of any Event of Default
or if such assignment is to another Lender or an Affiliate of a Lender) and the
Agent, assign to one or more banks or other entities all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment, the Advances owing to it and the Note or Notes
held by it); provided, however, that (i) each such assignment shall be of a
uniform, and not a varying, percentage of all rights and obligations, (ii)
except in the case of an assignment of all of a Lender's rights and obligations
under this Agreement, (A) the amount of the Commitment of the assigning Lender
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
be less than $5,000,000, and in integral multiples of $1,000,000 thereafter, or
such lesser amount as to which the Borrowers and the Agent may consent, and (B)
after giving effect to each such assignment (unless the assignment is for the
entire amount of such Lender's Commitment), the amount of the Commitment of the
assigning Lender shall in no event be less than $5,000,000 or such lesser amount
as to which the Borrowers and the Agent may consent, (iii) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit M
hereto (an "Assignment and Acceptance"), together with any Note or Notes subject
to such assignment and a processing and recordation fee of $3,500, and (iv) any
Lender may without the consent of the Borrowers or the Agent, and without paying
any fee, assign or sell a participation interest to any Affiliate of such Lender
that is a bank or financial institution all or a portion of its rights and
obligations under this Agreement. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(e) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrowers or the performance or observance by the Borrowers of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this
-69-
Agreement, together with copies of the financial statements referred to in
Section 4.6 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform and assume in accordance with their terms
all of the obligations that by the terms of this Agreement and the other Loan
Documents are required to be performed or assumed by it as a Lender.
(f) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by 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 owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(g) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Agent shall, if such Assignment and Acceptance has been
completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrowers. Within five Business Days after its receipt of such
notice, the Borrowers, at their own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and, if the assigning Lender has retained a
Commitment hereunder, a new Note to the order of the assigning Lender in an
amount equal to the Commitment retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit M hereto.
(h) The Borrowers shall not be liable for any costs or
expenses of any Lender in effectuating any participation or assignment under
this Section 8.6.
(i) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.6, disclose to the assignee or participant or proposed assignee or participant
(each a "Transferee") any information relating to any Borrower or its
Subsidiaries; provided that each Transferee agrees to be bound by the terms of
Section 8.16.
(j) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Loans owing to it and the Note or Notes held by it) in favor of
any Federal Reserve Lender in accordance with Regulation A of the Board of
Governors of the Federal Reserve System; provided that such creation of a
security interest or assignment shall not release such Lender from its
obligations under this Agreement.
-70-
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of
Michigan applicable to contracts made and to be performed entirely within such
State and without giving effect to choice of law principles of such State.
8.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
8.11 Integration and Severability. The Loan Documents embody the entire
agreement and understanding among the Borrowers and the Agent and the Lenders,
and supersede all prior agreements and understandings, relating to the subject
matter hereof. In case any one or more of the obligations of the Borrowers under
the Loan Documents shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrowers shall not in any way be affected or impaired
thereby, and such invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the obligations of
the Borrowers under the Loan Documents in any other jurisdiction.
8.12 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise 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
such condition exists.
8.13 Interest Rate Limitation. Notwithstanding any provisions of this
Agreement or the Notes, in no event shall the amount of interest paid or agreed
to be paid by the Borrowers exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or the Notes at the
time performance of such provision shall be due, shall involve exceeding the
interest rate limitation validly prescribed by law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligations to be
fulfilled shall be reduced to an amount computed at the highest rate of interest
permissible under applicable law, and if for any reason whatsoever any Lender
shall ever receive as interest an amount which would be deemed unlawful under
such applicable law such interest shall be automatically applied to the payment
of principal of such Lender's Advances outstanding hereunder (whether or not
then due and payable) and not to the payment of interest, or shall be refunded
to the Borrowers if such principal and all other obligations of the Borrowers to
such Lender have been paid in full.
8.14 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
-71-
(b) none of the Agent or any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement or
any of the other Loan Documents, and the relationship between the Agent and the
Lenders, on the one hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
8.15 Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of any United States federal
or Michigan state court sitting in Detroit, Michigan and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at the
address specified in Section 8.2, or at such other address of which the Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
8.16 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrowers pursuant to this Agreement
in confidence, except for disclosure (i) to its Affiliates and to other Lenders
and their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or Affiliate or to a Transferee, (iii) to
regulatory officials, (iv) to any Person as requested pursuant to or as required
by law, regulation, or legal process, (v) to any Person in connection with any
legal proceeding to which such Lender is a party, (vi) to such Lenders' direct
or indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, and (vii)
permitted by Section 8.6(i).
8.17 WAIVER OF JURY TRIAL. THE LENDERS AND THE AGENT AND THE BORROWERS,
AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT
OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT OR ANY COURSE
-72-
OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER
OF THEM. NEITHER ANY LENDER, THE AGENT NOR THE BORROWERS SHALL SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY TRIAL
HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY
RESPECT OR RELINQUISHED BY ANY PARTY HERETO EXCEPT BY A WRITTEN INSTRUMENT
EXECUTED BY SUCH PARTY.
8.18 USA PATRIOT ACT NOTIFICATION. The following notification is
provided to the Borrowers pursuant to Section 326 of the USA Patriot Act of
2001, 31 U.S.C. Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for a
Borrower: When a Borrower opens an account, if a Borrower is an individual,
Agent and the Lenders will ask for such Borrower's name, residential address,
tax identification number, date of birth, and other information that will allow
Agent and the Lenders to identify such Borrower, and, if such Borrower is not an
individual, Agent and the Lenders will ask for such Borrower's name, tax
identification number, business address, and other information that will allow
Agent and the Lenders to identify such Borrower. Agent and the Lenders may also
ask, if a Borrower is an individual, to see such Borrower's driver's license or
other identifying documents, and, if a Borrower is not an individual, to see
such Borrower's legal organizational documents or other identifying documents.
-73-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
UNIVERSAL FOREST PRODUCTS, INC.
By:____________________________________
Print Name:____________________________
Its:___________________________________
UNIVERSAL FOREST PRODUCTS NOVA SCOTIA
ULC
By:____________________________________
Print Name:____________________________
Its:___________________________________
-74-
Address for Notices: JPMORGAN CHASE BANK, N.A., as a Lender
and as Agent
611 Woodward Avenue By:____________________________________
Detroit, Michigan 48226
Attention: Thomas Gamm Print Name:____________________________
e-mail address: thomas_gamm@bankone.com
Facsimile No.: 313-226-0855 Its:___________________________________
Telephone No.: 313-225-2531
U.S. Commitment: $31,000,000
Canadian Commitment: $10,000,000
APPLICABLE LENDING OFFICE IN CANADA:
Address for Notices: JPMORGAN CHASE BANK, N.A., TORONTO
BRANCH
161 Bay Street
Suite 4240 By: ___________________________________
Toronto Ontario M5J 2S1
Attention: Michael Tam Print Name: ___________________________
e-mail address: michael_n_tam@bankone.com
Telephone: (416) 365-5261 Its: __________________________________
Telecopy: (416) 363-7574
-75-
Address for Notices: WACHOVIA BANK, NA, as a Lender and as
Syndication Agent
191 Peachtree Street, NE By:____________________________________
Atlanta, GA 30303
Attention: Meisha Wilson Print Name:____________________________
Facsimile No.: 404-332-4058 Its:___________________________________
Telephone No.: 404-332-6508
e-mail address: meisha.wilson@wachovia.com
U.S. Commitment: $28,000,000
Canadian Commitment: $0
-76-
Address for Notices: STANDARD FEDERAL BANK, NA, as a Lender
and as a Documentation Agent
40 Pearl Street NW By:____________________________________
Grand Rapids, MI 49501-1707
Attention: Thomas Hammer Print Name:____________________________
Facsimile No.: 616-451-7909 Its:___________________________________
Telephone No.: 616-451-7923
e-mail address: thomas.hammer@abnamro.com
U.S. Commitment: $28,000,000
Canadian Commitment: $0
-77-
Address for Notices: NATIONAL CITY BANK OF THE MIDWEST, as a
Lender and as a Documentation Agent
171 Monroe Avenue, NW, Locator K-C17-2B By:____________________________________
Grand Rapids, MI 49503
Attention: Brian Janssen Print Name:____________________________
e-mail address:
brian.janssen@nationalcity.com
Facsimile No.: 616-771-8660 Its:___________________________________
Telephone No.: 616-771-9272
U.S. Commitment: $28,000,000
Canadian Commitment: $10,000,000
APPLICABLE LENDING OFFICE IN CANADA:
Address for Notices: NATIONAL CITY BANK, CANADA BRANCH
130 King Street West, # 2140
PO Box 162 By: ___________________________________
Toronto, Ontario M5X 1E4
Attention: Andrew Riddell,
Vice President Print Name: ___________________________
e-mail: andrew.riddell@nationalcity.com
Facsimile No.: 416 361-0085 Its: __________________________________
Telephone No.: 416 361-1744 x226
-78-
Address for Notices: COMERICA BANK, as a Lender and as
a Documentation Agent
500 Woodward Avenue, 9th Floor By:____________________________________
Detroit, MI 48226
Attention: Jeffrey J. Judge Print Name:____________________________
Facsimile No.: 313-222-9514 Its:___________________________________
Telephone No.: 313-222-3801
e-mail address: jjjudge@comerica.com
U.S. Commitment: $28,000,000
Canadian Commitment: $5,000,000
APPLICABLE LENDING OFFICE IN CANADA:
Address for Notices: COMERICA BANK, CANADA BRANCH
200 Bay Street, Ste. 2210, S. Tower
Toronto, Ontario M5J 2J2 By: ___________________________________
Attention: Robert Rosen Print Name:____________________________
Facsimile No.: 416-367-2460 Its:___________________________________
Telephone No.: 416-367-3113
-79-
Address for Notices: BANK OF AMERICA, N.A.
231 S. LaSalle Street, Mail Code
1IL-231-06-40 By:____________________________________
Chicago, Illinois 60697
Attention: Chris Buckner Print Name:____________________________
Facsimile No.: 312-974-2109 Its:___________________________________
Telephone No.: 312-828-2732
e-mail address: chris.buckner@bankofamerica.com
U.S. Commitment: $23,000,000
Canadian Commitment: $0
-80-
Address for Notices: BANK OF MONTREAL
115 South LaSalle, 10W
Chicago, IL 60603
By:____________________________________
Attention: Edward Klinger Print Name:____________________________
Facsimile No.: 312-293-5068 Its:___________________________________
Telephone No.: 312-461-2765
e-mail address: edward.klinger@harrisnesbitt.com
U.S. Commitment: $23,000,000
Canadian Commitment: $5,000,000
APPLICABLE LENDING OFFICE IN CANADA:
Address for Notices: BANK OF MONTREAL
100 King Street West
Toronto, Ontario M5X 1A1 By: ___________________________________
Attention: Francois Archambault Print Name:____________________________
Facsimile No.: 312-750-1790 Its:___________________________________
Telephone No.: 312-750-4334
-81-
Address for Notices: FIFTH THIRD BANK
111 Lyon Street, N.W. By:____________________________________
Grand Rapids, MI 49503
Attention: Tesha Brownridge Print Name:____________________________
Facsimile No.: 616-653-5843 Its:___________________________________
Telephone No.: 616-653-5259
e-mail address: tesha..brownridge@53.com
U.S. Commitment: $23,000,000
Canadian Commitment: $0
-82-
Address for Notices: WELLS FARGO BANK, N.A.
146 Monroe Center NW, Ste. 1000 By:____________________________________
Grand Rapids, MI 49503
Attention: Donald Van Dine Print Name:____________________________
Facsimile No.: 616-458-4722 Its:___________________________________
Telephone No.: 616-458-6336
e-mail address: Donald.vandine@wellsfargo.com
U.S. Commitment: $23,000,000
Canadian Commitment: $0
-83-
Address for Notices: HUNTINGTON NATIONAL BANK
50 Monroe Avenue NW By:____________________________________
Grand Rapids, MI 49506
Attention: Steven Gerow Print Name:____________________________
Facsimile No.: 616-771-6285 Its:___________________________________
Telephone No.: 616-235-8138
e-mail address: steven.gerow@huntington.com
U.S. Commitment: $15,000,000
Canadian Commitment: $0
-84-