1
EXHIBIT 10.5
PHILIP SERVICES CORP.
and
PHILIP ENVIRONMENTAL (DELAWARE), INC.
as Borrowers
CANADIAN IMPERIAL BANK OF COMMERCE
as Administrative Agent
BANKERS TRUST COMPANY
as Syndication Agent
CANADIAN IMPERIAL BANK OF COMMERCE
and
BANKERS TRUST COMPANY
as Co-Arrangers
DRESDNER BANK CANADA,
DRESDNER BANK AG
NEW YORK BRANCH
and
ROYAL BANK OF CANADA
as Documentation Agents
THE VARIOUS PERSONS
FROM TIME TO TIME PARTIES TO THIS AGREEMENT
as Lenders
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CREDIT AGREEMENT
DATED AS OF AUGUST 11, 1997
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BLAKE, CASSELS & GRAYDON
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND INTERPRETATION
1.01 Definitions ................................................... 1
1.02 Headings, Etc. ................................................ 40
1.03 Financial Terms ............................................... 40
1.04 Number, Gender and Expressions ................................ 43
1.05 Time .......................................................... 43
1.06 Non-Business Days ............................................. 43
1.07 Conflicts ..................................................... 43
1.08 Statutory References .......................................... 44
1.09 Actions by Restricted Parties ................................. 44
1.10 Severability .................................................. 44
1.11 Entire Agreement .............................................. 44
1.12 Permitted Liens ............................................... 45
1.13 Interest Payments and Calculations ............................ 45
1.14 Governing Law ................................................. 45
1.15 Waiver of Jury Trial .......................................... 46
1.16 Currency ...................................................... 47
1.17 Senior Indebtedness ........................................... 47
1.18 Schedules ..................................................... 47
ARTICLE TWO
THE CREDIT
2.01 Establishment of the Credit ................................... 48
Tranche 1 ..................................................... 48
Tranche 2 ..................................................... 49
Tranche 3 ..................................................... 50
Cdn. Operating Line ........................................... 50
U.S. Operating Line ........................................... 50
U.S. Operating Line ........................................... 51
LC Line ....................................................... 51
2.02 Purpose of the Credit ......................................... 52
2.03 Borrowings Under Tranches ..................................... 52
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2.04 Notice of Borrowing .............................................. 56
2.05 Bankers' Acceptances ............................................. 58
2.06 Letters of Credit ................................................ 61
2.07 Overdrafts under the Operating Lines ............................. 65
2.08 Lenders' Accounts ................................................ 66
2.09 LIBOR Loans ...................................................... 67
2.10 Optional Reduction of Limit of Tranches .......................... 68
2.11 Certain Pre-existing Accommodation ............................... 68
ARTICLE THREE
INTEREST AND FEES
3.01 Loans ............................................................ 71
3.02 Overdue Principal and Interest ................................... 72
3.03 Interest on Other Amounts ........................................ 73
3.04 Interest Payment Dates ........................................... 73
3.05 LIBOR Period Determination ....................................... 73
3.06 Failure of the LIBOR ............................................. 75
3.07 Determination of Rates and Basis of Calculation of Interest ...... 76
3.08 Maximum Return ................................................... 76
3.09 Fees for Bankers' Acceptances and BA Equivalent Notes ............ 77
3.10 Fees for Letters of Credit ....................................... 78
3.11 Standby Fee ...................................................... 79
3.12 Agency Fees ...................................................... 80
ARTICLE FOUR
REPAYMENT OF ACCOMMODATION
4.01 Optional Repayment ............................................... 80
4.02 Mandatory Repayment .............................................. 81
4.03 Surplus Additional Debt .......................................... 82
4.04 Excess Property Sales Proceeds ................................... 82
4.05 Currency Fluctuations ............................................ 83
4.06 Illegality ....................................................... 83
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ARTICLE FIVE
PAYMENTS AND INDEMNITIES
5.01 Method and Place of Payments .................................... 84
5.02 Currency of Payment ............................................. 88
5.03 Taxes ........................................................... 88
5.04 Increased Costs ................................................. 91
5.05 Indemnities ..................................................... 92
ARTICLE SIX
SECURITY
6.01 Form of Security ................................................ 95
6.02 Satisfactory to Administrative Agent ............................ 97
6.03 General Provisions Relating to the Security ..................... 97
6.04 Registration .................................................... 97
6.05 Release of Security ............................................. 98
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES
7.01 Delivery of Representations and Warranties ...................... 98
7.02 Repetition of Representations and Warranties .................... 107
ARTICLE EIGHT
COVENANTS
8.01 Affirmative Covenants ........................................... 107
(a)Financial Statements ......................................... 108
(b)Certificates; Other Information .............................. 111
(c)Payment of Obligations ....................................... 113
(d)Conduct of Business and Maintenance of Existence ............. 113
(e)Maintenance of Property and Insurance ........................ 114
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(f)Inspection of Property: Books and Records; Discussions....... 114
(g)Notices....................................................... 114
(h)Permits and Requirements of Law............................... 116
(i)Use of Accommodation.......................................... 117
(j)Environmental Clean-Up........................................ 117
(k)No Environmental Damage....................................... 117
(l)Security...................................................... 117
(m)Permitted Liens............................................... 118
(n)Appointment of Consultants.................................... 118
(o)Reserves for Environmental Liabilities........................ 118
(p)Payment of Taxes.............................................. 118
(q)Independent Subsidiaries - Delivery of Agreements............. 118
(r)Independent Subsidiaries - Conduct of Business................ 119
(s)Expenses...................................................... 119
(t)Further Assurances............................................ 120
(u)Margin Stock.................................................. 120
(v)Acquisition................................................... 121
(w)Non Material Restricted Subsidiaries.......................... 121
8.02 Negative Covenants............................................... 122
(a)Debt.......................................................... 122
(b)Liens......................................................... 123
(c)Amalgamation, etc............................................. 123
(d)Dispositions of Property...................................... 123
(e)Investments................................................... 126
(f)Restricted Payments........................................... 126
(g)Transfers of Shares........................................... 127
(h)No Share Issuance............................................. 127
(i)Transactions with Affiliates.................................. 127
(j)Sale and Leaseback............................................ 128
(k)Acquisitions.................................................. 128
(l)Limitation of Financial Assistance............................ 129
(m)No Change of Fiscal Year...................................... 129
(n)No Hostile Take-Over Bids..................................... 130
(o)No Change of Name............................................. 130
(p)No Breaches................................................... 130
(q)Arrangements with Independent Subsidiaries.................... 130
(r)Hedging Arrangements.......................................... 130
8.03 Financial Covenants.............................................. 130
8.04 Interpretation of Certain Covenants.............................. 131
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ARTICLE NINE
EVENTS OF DEFAULT
9.01 Events of Default ............................................... 131
(a)Default in Principal ......................................... 131
(b)Default in Interest, etc. .................................... 131
(c)Certain Defaults under Credit Agreement ...................... 131
(d)Other Defaults under Credit Documents ........................ 131
(e)Representations and Warranties ............................... 132
(f)Default under Other Agreements with Lenders .................. 132
(g)Default in other Indebtedness ................................ 132
(h)Credit Documents ............................................. 132
(i)Winding-up etc. .............................................. 133
(j)Voluntary Insolvency Actions ................................. 133
(k)Insolvency Proceedings ....................................... 133
(l)Appointment of Receiver ...................................... 133
(m)Bankruptcy Statutes .......................................... 133
(n)Judgments .................................................... 134
(o)Encumbrances ................................................. 134
(p)Cease to carry on Business ................................... 134
(q)Qualified Auditor's Report ................................... 134
(r)Reorganization ............................................... 134
(s)Material Adverse Effect ...................................... 134
(t)Change of Control of a Restricted Party ...................... 134
(u)Pension Plans ................................................ 135
9.02 Remedies ........................................................ 136
9.03 Benefit of Security; Set-Off; Sharing of Payments ............... 136
9.04 Remedies Cumulative ............................................ 139
9.05 Appropriation of Moneys Received ................................ 139
9.06 Non-Merger ...................................................... 139
ARTICLE TEN
CONDITIONS PRECEDENT TO BORROWINGS
10.01 Conditions Precedent to the Initial Borrowing ................... 139
10.02 Conditions Precedent to Subsequent Borrowings ................... 143
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ARTICLE ELEVEN
THE ADMINISTRATIVE AGENT AND OTHER AGENTS
11.01 Appointment ..................................................... 144
11.02 Indemnity from Lenders .......................................... 145
11.03 Exculpation ..................................................... 145
11.04 Reliance on Information ......................................... 146
11.05 Knowledge and Required Action ................................... 146
11.06 Request for Instructions ........................................ 147
11.07 Exchange of Information ......................................... 147
11.08 The Administrative Agent and the Other Agents, Individually ..... 147
11.09 Resignation and Termination ..................................... 148
11.10 Actions by Lenders .............................................. 148
11.11 Provisions for Benefit of Lenders Only .......................... 150
ARTICLE TWELVE
MISCELLANEOUS
12.01 Participations, Assignments and Transfers ....................... 151
12.02 Waiver .......................................................... 157
12.03 Further Assurances .............................................. 157
12.04 Notices ......................................................... 158
12.05 Domicile of Accommodation ....................................... 158
12.06 Confidentiality ................................................. 158
12.07 Confirmation to Creditors of Independent Subsidiaries ........... 159
12.08 Survival ........................................................ 159
12.09 Quantities of Documents ......................................... 159
12.10 Reproduction of Documents ....................................... 160
12.11 Language ........................................................ 160
12.12 Counterparts and Effectiveness .................................. 160
12.13 Facsimile Copies ................................................ 160
12.14 Benefit of Agreement ............................................ 161
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SCHEDULES
Schedule 1 - Commitments of the Lenders under Tranches 1, 2 and 3
Schedule 2 - Form of Corporate Separateness Covenant and Assurance
Agreement
Schedule 3 - Form of Acknowledgement and Agreement from Eligible
Affiliates of the Administrative Agent, an Other Agent or a
Lender
Schedule 4 - List of Independent Subsidiaries
Schedule 5 - Form of Non Recourse Acknowledgement and Undertaking
Schedule 6 - List of Permitted Liens
Schedule 7 - Description of Permitted Indebtedness
Schedule 8 - Description of Pre-existing Accommodation
Schedule 9 - Form of Tax Sharing Agreement
Schedule 10 - Form of Notice of Borrowing
Schedule 11 - Form of Note of Conversion/Renewal
Schedule 12 - Minimum Amounts of Borrowings under Tranches
Schedule 13 - Notice Periods for Borrowing of Types of Accommodation under
Tranches
Schedule 14 - Form of BA Equivalent Note
Schedule 15 - Form of Non Bank Certificate for U.S. Withholding Tax Purposes
Schedule 16 - Listing of Particulars of Shares and Other Securities to be
Pledged under the Security
Schedule 17 - Litigation
Schedule 18 - Corporate Chart
Schedule 19 - Disclosure Schedule
Schedule 20 - List of Material Contracts
Schedule 21 - Form of Quarterly Reporting Compliance Certificate
Schedule 22 - Form of Quarterly Environmental Compliance Certificate
Schedule 23 - Insurance Requirements
Schedule 24 - Form of Undertaking relative to Assignments by Lenders
Schedule 25 - Form of Assignment and Assumption Agreement relative to
Assignments by Lenders
Schedule 26 - List of Non Material Restricted Subsidiaries
Schedule 27 - Commitments of the Lenders under the LC Line
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THIS IS A CREDIT AGREEMENT dated as of August 11, 1997 among PHILIP SERVICES
CORP., a corporation existing under the laws of Ontario, as a borrower in
Canada, PHILIP ENVIRONMENTAL (DELAWARE), INC., a corporation existing under the
laws of Delaware, as a borrower in the United States of America, CANADIAN
IMPERIAL BANK OF COMMERCE, as administrative agent for the Lenders in the
manner and to the extent described in Article Eleven, BANKERS TRUST COMPANY as
syndication agent, CANADIAN IMPERIAL BANK OF COMMERCE and BANKERS TRUST COMPANY
as co-arrangers of the Credit, DRESDNER BANK CANADA, DRESDNER BANK AG NEW YORK
BRANCH and ROYAL BANK OF CANADA as documentation agents, and the various
Persons from time to time parties to this Agreement as lenders.
THIS CREDIT AGREEMENT WITNESSES that, for valuable consideration (the
receipt and sufficiency of which are acknowledged by each of the parties to
this Agreement) the parties to this Agreement agree as follows:
ARTICLE ONE
DEFINITIONS AND INTERPRETATION
1.011 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"ACCOMMODATION" shall mean Loans, Bankers' Acceptances, BA Equivalent
Notes and Letters of Credit made, accepted, purchased or issued, as the case
may be, by the Lenders or, where so indicated, by an individual Lender, and
shall refer to any one or more Loans, Bankers' Acceptances, BA Equivalent Notes
or Letters of Credit where the context requires, and "TYPE" of Accommodation
shall refer to whether any particular Accommodation is a Prime Rate Loan, a
U.S. Base Rate Loan, a U.S. Reference Rate Loan, a LIBOR Loan, a Bankers'
Acceptance (including a BA Equivalent Note) or a Letter of Credit.
"ACQUISITION" shall mean, with respect to any Person, any purchase or
other acquisition, regardless of how accomplished or effected (including any
such purchase or other acquisition effected by way of amalgamation, merger or
other form or corporate reorganization), of (a) any other Person (including any
purchase or acquisition of such number of the issued and outstanding securities
of, or such portion of an equity interest in, such other Person that such other
Person becomes a Subsidiary of the purchaser or of any of its Affiliates) or of
all or substantially all of the property of any other Person, or (b) any
division, business, operation or undertaking of any
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SECTION 1.01
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other Person or of all or substantially all of the property of any division,
business, operation or undertaking of any other Person.
"ADDITIONAL DEBT" shall mean
(a) Debt (other than Debt under this Agreement) incurred by a Borrower
after the date of this Agreement from any other Person provided that
(i) such Debt is unsecured and is not guaranteed by the Cdn. Borrower
or any Subsidiary of the Cdn. Borrower which is not a Guarantor
Subsidiary (with any such guarantee to contain provision for the
automatic release of such guarantee if the Guarantor Subsidiary is
sold or if the guarantee from such Subsidiary under the Credit
Documents is released), (ii) the Debt of the Borrowers and their
Subsidiaries to the Administrative Agent, the Other Agents, the
Lenders and their respective Eligible Affiliates under the Credit
Documents and the Lender/Borrower Hedging Arrangements will always
rank at least pari passu as to the right of payment with such Debt,
and will not rank subordinate as to the right of payment to any such
Debt,(iii) the representations, warranties, covenants, agreements,
obligations, liabilities, defaults, acceleration rights and other
terms and provisions of such Debt will in the opinion of the Required
Lenders be no more favourable to the holder of such Debt, and no more
restrictive on the Borrowers or any of their Subsidiaries, than
the representations, warranties, covenants, agreements, obligations,
liabilities, defaults, acceleration rights and other terms and
provisions of the Credit Documents, (iv) the maturity of such Debt
shall be at least one year beyond the Maturity Date, there shall be
no mandatory repayment, redemption or repurchase obligations under
such Debt prior to one year beyond the Maturity Date and payment of
such Debt shall not be capable of being accelerated prior to an
acceleration of Debt under this Agreement, and (v) interest, fees
and the other terms and provisions relative to such Debt shall in
the opinion of the Required Lenders be consistent with then
current market rates and terms and conditions; and
(b) Debt of a Person assumed or acquired by a Restricted Subsidiary as
part of an Acquisition provided that (i) such assumed or acquired
Debt was not incurred in connection with, for the purpose of, or in
anticipation or contemplation of, such Acquisition, (ii) such
assumed or acquired Debt is unsecured and is not guaranteed by any
Person which is not both a Guarantor Subsidiary and a Subsidiary of
the Person acquired (with any such guarantee to contain provision
for the automatic release of such guarantee if the Guarantor
Subsidiary is sold or if the guarantee from such Subsidiary under
the Credit Documents is released), (iii) the Debt of the Borrowers
and their Subsidiaries to the Administrative Agent, the Other Agents,
the Lenders and their respective Eligible Affiliates under the
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SECTION 1.01
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Credit Documents and the Lender/Borrower Hedging Arrangements will always
rank at least pari passu as to the right of payment with such assumed or
acquired Debt, and will not rank subordinate as to the right of payment
to any such assumed or acquired Debt, (iv) the representations,
warranties, covenants, agreements, obligations, liabilities, defaults,
acceleration rights and other terms and provisions of such assumed or
acquired Debt will in the opinion of the Required Lenders be no more
favourable to the holder of such assumed or acquired Debt, and no more
restrictive on the Borrowers or any of their Subsidiaries, than the
representations, warranties, covenants, agreements, obligations,
liabilities, defaults, acceleration rights and other terms and provisions
of the Credit Documents, (v) the maturity of such assumed or acquired
Debt shall be at least one year beyond the Maturity Date, there shall be
no mandatory repayment, redemption or repurchase obligations under such
assumed or acquired Debt prior to one year beyond the Maturity Date and
payment of such Debt shall not be capable of being accelerated prior to
an acceleration of Debt under this Agreement, and (vi) interest, fees and
the other terms and provisions relative to such assumed or acquired Debt
shall in the opinion of the Required Lenders be consistent with then
current market rates and terms and conditions.
"ADMINISTRATIVE AGENT" shall mean Canadian Imperial Bank of Commerce in
its capacity as administrative agent under the Credit Documents or such other
financial institution as may be appointed as the successor Administrative Agent
in the manner and to the extent described in Section 11.09.
"ADMINISTRATIVE AGENT'S CDN. PAYMENT BRANCH" shall mean the main branch of
the Administrative Agent at Commerce Court, Toronto, Ontario or such other
branch of the Administrative Agent in Canada as the Administrative Agent may
from time to time designate in writing to the Borrowers.
"ADMINISTRATIVE AGENT'S U.S. PAYMENT BRANCH" shall mean the office of CIBC
Inc., 7th Floor, 425 Lexington Avenue, New York, New York, 10017 or such other
office or branch of the Administrative Agent or one of its Affiliates in the
United States of America as the Administrative Agent may from time to time
designate in writing to the Borrower.
"AFFILIATE" shall mean an "affiliate" as defined by the Business
Corporations Act (Ontario).
"AFFILIATED" shall mean:
(a) in describing a Cdn. Cross Border Lender and its Affiliated U.S.
Cross Border Lender or a U.S. Cross Border Lender and its
Affiliated Cdn. Cross Border
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Lender, as the case may be, a Cdn. Cross Border Lender and a U.S.
Cross Border Lender which are each Affiliates of the other; and
(b) in describing a Cdn. LC Lender and its Affiliated U.S. LC Lender
or a U.S. LC Lender and its Affiliated Cdn. LC Lender, as the
case may be, a Cdn. LC Lender and a U.S. LC Lender which are each
Affiliates of the other.
"ALLWASTE" shall mean Allwaste, Inc. , a corporation existing under the
laws of Delaware.
"ALLWASTE AGREEMENT AND PLAN OF MERGER" shall mean the Agreement and Plan
of Merger dated as of March 5, 1997 among the Cdn. Borrower, Taro Aggregates
Ltd., Philip/Atlas Merger Corp. and Allwaste.
"ALLWASTE ACQUISITION" shall mean the Acquisition of Allwaste by the Cdn.
Borrower by way of the merger of a wholly-owned Subsidiary of the Cdn. Borrower
with and into Allwaste, with Allwaste being the surviving corporation from such
merger, pursuant to the Allwaste Agreement and Plan of Merger.
"ANNIVERSARY" relative to a Disposition shall have the meaning specified
in subsection 8.02(d).
"APPLICABLE INTEREST PRICING ADJUSTMENT" shall have the meaning specified
in Section 3.01.
"APPLICABLE LAW" shall mean, at any time, in respect of any Person,
property, transaction, event or other matter, as applicable, all laws
(including all Environmental Laws), rules, statutes, regulations, treaties,
orders, judgments and decrees and all official directives, rules, guidelines,
orders, policies and other requirements of any Governmental Authority (whether
or not having the force of law) (collectively the "LAW") relating or applicable
at such time to such Person, property, transaction, event or other matter, and
shall also include any interpretation of the Law or any part of the Law by any
Person having jurisdiction over it or charged with its administration or
interpretation.
"APPLICABLE LC FEE PRICING RATE" shall have the meaning specified in
Section 3.10.
"APPLICABLE REFERENCE RATE" for a type of Loan shall mean (a) with respect
to Prime Rate Loans, the Prime Rate in effect from time to time, (b) with
respect to U.S. Base Rate Loans, the U.S. Base Rate in effect from time to
time, (c) with respect to U.S. Reference Rate Loans, the U.S. Reference Rate in
effect from time to time, and (d) with respect to LIBOR Loans and any
applicable LIBOR Period, the LIBOR determined for such LIBOR Period in
accordance with the provisions of this Agreement. With respect to Prime Rate
Loans (and other amounts in respect of which interest is to be calculated under
this Agreement on the basis of the Prime Rate), U.S. Base Rate Loans (and other
amounts in respect
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SECTION 1.01
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of which interest is to be calculated under this Agreement on the basis of the
U.S. Base Rate) and U.S. Reference Rate Loans (and other amounts in respect of
which interest is to be calculated under this Agreement on the basis of the
U.S. Reference Rate), the Applicable Reference Rate will change automatically
without notice to the Borrowers as and when the Prime Rate, the U.S. Base Rate
and the U.S. Reference Rate, as the case may be, shall change so that at all
times interest payable under this Agreement on Prime Rate Loans (and other
amounts in respect of which interest is to be calculated under this Agreement
on the basis of the Prime Rate) shall be based on the Prime Rate then in
effect, interest payable on U.S. Base Rate Loans (and other amounts in respect
of which interest is to be calculated under this Agreement on the basis of the
U.S. Base Rate) shall be based on the U.S. Base Rate then in effect and
interest payable on U.S. Reference Rate Loans (and other amounts in respect of
which interest is to be calculated under this Agreement on the basis of the
U.S. Reference Rate) shall be based on the U.S. Reference Rate then in effect.
"APPLICABLE STAMPING FEE" shall have the meaning specified in Section
3.09.
"APPLICABLE STANDBY FEE PRICING RATE" shall have the meaning specified in
Section 3.11.
"ASSOCIATE" shall mean an "associate" as defined by the Business
Corporations Act (Ontario).
"BA DISCOUNT PROCEEDS" shall mean, with respect to any Bankers' Acceptance
or BA Equivalent Note, an amount calculated on the applicable Borrowing Date
which is (rounded to the nearest full cent) equal to the face amount of such
Bankers' Acceptance or BA Equivalent Note divided by the sum of one plus the
product of (a) the BA Discount Rate applicable to such Bankers' Acceptance or
BA Equivalent Note multiplied by (b) a fraction, the numerator of which is the
term of such Bankers' Acceptance or BA Equivalent Note and the denominator of
which is 365.
"BA DISCOUNT RATE" shall mean, (i) with respect to any Bankers'
Acceptances to be purchased by a BA Lender on any Borrowing Date, the annual
discount rate (rounded upward to the nearest whole multiple of 1/100 of 1%)
notified to the Administrative Agent by such BA Lender as of 10:00 a.m. on such
Borrowing Date as the discount rate of interest at which such BA Lender is then
offering to purchase bankers' acceptances accepted by it having a comparable
aggregate face amount and identical maturity date to the aggregate face amount
and maturity date of the Bankers' Acceptances to be purchased by such BA Lender
on such Borrowing Date, and (ii) with respect to any BA Equivalent Notes to be
accepted by a Non BA Lender on any Borrowing Date, the annual interest rate
(rounded upward to the nearest whole multiple of 1/100 of 1%) notified to the
Administrative Agent by such Non BA Lender as being the best estimate
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SECTION 1.01
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of such Non BA Lender of the cost to it of obtaining Cdn. Dollars to fund such
purchase, but in no event shall the interest rate determined pursuant to this
clause (ii) for any Non BA Lender be greater than the discount rate for the
Administrative Agent in its capacity as a BA Lender determined pursuant to
clause (i) of this definition. If any rate to be determined by the
Administrative Agent pursuant to clause (i) or (ii) of this definition is not
available on any day, there shall be substituted for such rate the CDOR in
effect on such day for bankers' acceptances having a maturity most nearly
comparable to the applicable Bankers' Acceptance or BA Equivalent Note.
"BA EQUIVALENT NOTE" shall have the meaning specified in subsection
2.05(1) and, for greater certainty, shall include all Pre-existing BA
Equivalent Notes as provided for in Section 2.11.
"BA LENDER" shall mean any Cdn. Only Lender, Cdn. Cross Border Lender or
Cdn. Operating Lender which is a bank chartered under the Bank Act (Canada).
"BANKERS' ACCEPTANCE" shall mean a Draft denominated in Cdn. Dollars drawn
by the Cdn. Borrower and accepted by a BA Lender as provided in Section 2.05
and, for greater certainty, shall include all Pre-existing BAs as provided for
in Section 2.11.
"BASE LIBOR" shall mean, with respect to each LIBOR Period for each LIBOR
Loan, an annual interest rate per annum, expressed on the basis of a 360 day
year, equal to:
(a) (i) in the case of Accommodation (other than Accommodation under an
Operating Line) the interest rate at which the Administrative
Agent is offered deposits of U.S. Dollars by leading banks in
the London interbank market as of 11:00 a.m. (London time) on
the second Business Day prior to the commencement of such
LIBOR Period, for delivery on the first day of such LIBOR
Period for the number of months comprised in such LIBOR Period
and in an amount equal to the amount of such LIBOR Loan;
(ii) in the case of Accommodation under the Cdn. Operating Line,
the interest rate at which the Cdn. Operating Lender is
offered deposits of U.S. Dollars by leading banks in the
London interbank market as of 11:00 a.m. (London time) on the
second Business Day prior to the commencement of such LIBOR
Period, for delivery on the first day of such LIBOR Period
for the number of months comprised in such LIBOR Period and
in an amount equal to the amount of such LIBOR Loan; and
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SECTION 1.01
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(iii) in the case of Accommodation under a U.S. Operating Line,
the interest rate at which the applicable U.S. Operating
Lender is offered deposits of U.S. Dollars by leading banks
in the London interbank market as of 11:00 a.m. (London
time) on the second Business Day prior to the commencement of
such LIBOR Period, for delivery on the first day of such
LIBOR Period for the number of months comprised in such LIBOR
Period and in an amount equal to the amount of such LIBOR
Loan; and
(b) if any such rate is not available on any day, there shall be
substituted for such rate the annual interest rate for deposits of
U.S. Dollars for a maturity most nearly comparable to such LIBOR
Period which appears on page Q LIBOR 01 of the Reuters Screen as of
11:00 a.m. (London time) on the second Business Day prior to the
commencement of such LIBOR Period or, if such Reuters Screen rate is
not available on such day, there shall be substituted for such rate
the annual interest rate for deposits of U.S. Dollars for a maturity
most nearly comparable to such LIBOR Period which appears on the
LIBO page of the Reuters Screen as of 11:00 a.m. (London time) on
the second Business Day prior to the commencement of such LIBOR
Period.
"bps" shall mean basis points, each basis point being 1/100 of 1%.
"BORROWERS" shall mean the Cdn. Borrower and the U.S. Borrower, and
"BORROWER" shall mean either one of the Borrowers.
"BORROWING" shall mean the aggregate Accommodation of the same type
obtained or to be obtained by a Borrower under the Credit, or any Tranche of
the Credit, on any Borrowing Date (for greater certainty including any Bankers'
Acceptances or BA Equivalent Notes obtained or to be obtained on the maturity
of any outstanding Bankers' Acceptances or BA Equivalent Notes and any
Accommodation obtained or to be obtained on the conversion of any outstanding
Accommodation into another type of Accommodation and any conversion of the
interest rate on Loans in U.S. Dollars or the renewal of the LIBOR Period
applicable to any LIBOR Loan pursuant to a Notice of Conversion/Renewal).
"BORROWING DATE" shall have the meaning specified in subsection 2.04(1)
and shall include, in connection with the calculation of interest on
Pre-existing Accommodation, the Closing Date.
"BUSINESS DAY" shall mean any day, other than a Saturday or Sunday, on
which Canadian chartered banks are open for domestic and foreign exchange
business in Toronto, Canada; provided that with respect to any LIBOR Loan
"BUSINESS DAY" shall mean any day, other than a Saturday or Sunday, on which
dealings in U.S. Dollars may be carried on by and between prime
16
SECTION 1.01
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banks in the London interbank market, except any such day on which banks are
lawfully closed for business in New York, New York, United States of America,
London, England or Toronto, Canada and that with respect to any U.S. Base Rate
Loan and any U.S. Reference Rate Loan "BUSINESS DAY" shall mean any day, other
than a Saturday or Sunday, on which banks are open for domestic and foreign
exchange business in New York, New York, United States of America and Toronto,
Canada.
"CAPITAL EXPENDITURES" of any Person shall mean any expenditures by such
Person made in connection with the purchase, lease, acquisition, erection or
construction of property (including any such property acquired pursuant to a
Capitalized Lease Obligation) or any other expenditures, in any such case which
are required to be capitalized in accordance with GAAP, and for greater
certainty does not include an Acquisition.
"CAPITALIZED LEASE OBLIGATION" shall mean, for any Person, any payment
obligation of such Person under an agreement for the lease or rental of, or
providing such Person with the right to use, property that, in accordance with
GAAP, is required to be capitalized.
"CDN. BORROWER" shall mean Philip Services Corp. a corporation existing
under the laws of the Province of Ontario, and its successors by amalgamation,
merger or otherwise.
"CDN. CROSS BORDER LENDERS" shall mean those Lenders listed in Column 3 of
Schedule 1 to this Agreement, together with each other Person which from time
to time becomes a party to this Agreement and a Lender in Canada to the Cdn.
Borrower under Tranche 2 in accordance with Section 12.01, in their capacity as
Lenders in Canada to the Cdn. Borrower under Tranche 2, in each case together
with their respective successors and assigns, and "CDN. CROSS BORDER LENDER"
shall mean any one of the Cdn. Cross Border Lenders.
"CDN. DOLLARS" and "CDN. $" shall mean lawful currency of Canada.
"CDN. LC COMMITMENT" shall have the meaning specified in subsection
2.01(g).
"CDN. LC ISSUER" shall mean Canadian Imperial Bank of Commerce in its
capacity as issuer of Letters of Credit to the Cdn. Borrower under the LC Line
together with its successors and assigns in such capacity.
"CDN. LC LENDERS" shall mean the Cdn. LC Issuer and those other Lenders
listed in Column 1 of Schedule 27 to this Agreement, together with each other
Person which from time to time becomes a party to this Agreement and a Lender
in Canada to the Cdn. Borrower under the LC Line in accordance with Section
12.01, in their capacity as Lenders in Canada to the Cdn. Borrower under the LC
Line, in each case together with their respective successors and assigns, and
"CDN. LC LENDER" shall mean any one of the Cdn. LC Lenders.
17
SECTION 1.01
- 9 -
"CDN. OPERATING LENDER" shall mean Royal Bank of Canada in its capacity as
the operating credit lender to the Cdn. Borrower in Canada under the Cdn.
Operating Line together with its successors and assigns in such capacity.
"CDN. OPERATING LINE" shall have the meaning specified in subsection
2.01(d).
"CDN. ONLY LENDERS" shall mean those Lenders listed in Column 1 of
Schedule 1 to this Agreement, together with each other Person which from time
to time becomes a party to this Agreement and a Lender in Canada to the Cdn.
Borrower under Tranche 1 in accordance with Section 12.01, in their capacity as
Lenders in Canada to the Cdn. Borrower under Tranche 1, in each case together
with their respective successors and assigns, and "CDN. ONLY LENDER" shall mean
any one of the Cdn. Only Lenders.
"CDOR" shall mean, for any day and relative to Cdn. Dollar bankers'
acceptances having any specified term, the average of the annual rates for Cdn.
Dollar bankers' acceptances having such specified term (or a term as closely as
possible comparable to such specified term) of the Schedule I chartered banks
of Canada that appears on the Reuters Screen CDOR page as of at 10:00 a.m. on
such day (or, if such day is not a Business Day, as of 10:00 a.m. on the next
preceding Business Day), provided that if such rate does not appear on the
Reuters Screen CDOR page at such time on such date, the rate for such date will
be the average of the BA Discount Rates quoted by the BA Lenders for Canadian
dollar bankers' acceptances having such specified term at such time and on such
date.
"CLOSING DATE" shall mean the earlier of (i) the initial Borrowing Date,
and (ii) the date on which the Administrative Agent delivers written notice to
the Cdn. Borrower that all of the conditions set forth in Section 10.01 have
been satisfied.
"CO-ARRANGERS" shall mean Canadian Imperial Bank of Commerce and Bankers
Trust Company in their capacity as co-arrangers of the Credit.
"CODE" shall mean the United States Internal Revenue Code of 1986, and the
regulations promulgated and rulings issued thereunder.
"COMBINED LC COMMITMENT" shall mean, with respect to each Cdn. LC Lender
and its Affiliated U.S. LC Lender at any time, the U.S. Dollar Amount set forth
for such Lenders at such time in the Registry of Commitments as such Lenders'
combined commitment under the LC Line (which amount on the date of this
Agreement is set forth opposite such Lenders' names in Column 5 of Schedule 27)
(as such amount may from time to time be adjusted pursuant to Section 2.03 or
as otherwise provided for pursuant to the provisions of this Agreement and as
the Registry of Commitments may from time to time be amended as provided for in
Section 12.01 or in any other applicable provision of this Agreement).
18
SECTION 1.01
- 10 -
"COMMITMENT" shall mean:
(a) with reference to any Cdn. Only Lender and Tranche 1, such Lender's
Tranche 1 Commitment;
(b) with reference to any Cdn. Cross Border Lender and Tranche 2, such
Lender's Tranche 2 Cdn. Borrowing Commitment, with reference to any
U.S. Cross Border Lender and Tranche 2, such Lender's Tranche 2 U.S.
Borrowing Commitment, and with reference to any Cdn. Cross Border
Lender and its Affiliated U.S. Cross Border Lender and Tranche 2,
such Lenders' Tranche 2 Combined Commitment;
(c) with reference to any U.S. Only Lender and Tranche 3, such Lender's
Tranche 3 Commitment;
(d) with respect to the Cdn. Operating Lender, the limit of the Cdn.
Operating Line;
(e) with respect to each of the U.S. Operating Lenders, the limit of the
U.S. Operating Line from such Lender; and
(f) with reference to any Cdn. LC Lender and the LC Line, such Lender's
Cdn. LC Commitment, with reference to any U.S. LC Lender and the LC
Line, such Lender's U.S. LC Commitment, and with reference to any
Cdn. LC Lender and its Affiliated U.S. LC Lender and the LC Line,
such Lenders' Combined LC Commitment;
provided that as of the acceleration of amounts outstanding under the Credit
the calculation of the "COMMITMENT" will be based on the amount of
Accommodation then outstanding from the Lenders under the Credit or the
Tranches of the Credit, as the case may be, as of the date of acceleration (as
adjusted to reflect cheques issued under the Operating Lines prior to such
date).
"COMMITMENT PERCENTAGE" shall mean, at any time with reference to any
Lender and the Credit or any Tranche, that number, expressed as a percentage,
obtained by dividing such Lender's Commitment for the Credit or such Tranche,
as the case may be, at such time by the aggregate Commitments of all Lenders
for the Credit or such Tranche, as the case may be, at such time.
"CONTAMINANT" shall mean (a) any pollutant, toxic substance, chemical,
hazardous waste, hazardous material, hazardous substance, petroleum product,
oil, or radioactive material; (b) any substance, gas, material or chemical
which is or may be defined as or included in the definition of "hazardous
substances", "toxic substances", "hazardous materials", "hazardous wastes" or
words of similar import under any Environmental Law; (c) any other chemical,
material, gas or
19
SECTION 1.01
- 11 -
substance, the exposure or release of which is or may be prohibited, limited or
regulated by any Environmental Law; or (d) any chemical, material, gas or
substance that does or may pose a hazard to health and/or safety of Persons or
the Natural Environment.
"CONTESTED" shall mean contested in good faith by appropriate proceedings
promptly initiated and diligently conducted.
"CONTINGENT OBLIGATION" shall mean, as to any Person, any obligation,
whether secured or unsecured, of such Person guaranteeing or in effect
guaranteeing any indebtedness, leases, dividends, letters of credit or other
monetary obligations (the "PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person as an account party in
respect of a letter of credit issued to assure payment by the primary obligor
of any such primary obligation and any obligation of such Person, whether or
not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or supply
funds for the purchase or payment of any such primary obligation or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
obligee under any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the obligee under such primary obligation against loss in respect of
such primary obligation; provided, however, that the term Contingent
Obligation:
(a) shall not include endorsements of instruments for deposit or
collection in the ordinary course of business;
(b) shall not include assurances or obligations given by such Person to
a third party who has in turn provided assurances (the "THIRD PARTY
ASSURANCES") in support or in respect of primary obligations of such
Person but only to the extent of such third party assurances and
only to the extent that such assurances or obligations from such
Person have not been demanded or called upon by, or otherwise become
due and payable to, the applicable third party; and
(c) when used with respect to a Restricted Party, shall not include
assurances or obligations given by such Restricted Party to another
Person (the "ASSURANCE BENEFICIARY") in support of any obligations
of an Independent Subsidiary to provide or perform services (the
"BONDED SERVICES") under a contract, in all such cases to the
extent, and only to the extent, that:
20
SECTION 1.01
- 12 -
(i) (x) such assurances or obligations from such Restricted
Party have not been demanded or called upon by, or
otherwise become due and payable to, the applicable
Assurance Beneficiary, or
(y) having been demanded or called upon, or otherwise
having become due or payable, such assurances or
obligations at the relevant time, in the good faith
reasonable opinion of the Cdn. Borrower, would
not be accrued as a liability of such Restricted
Party in accordance with GAAP provided that (A) the
Cdn. Borrower has notified the Administrative Agent in
writing of all relevant details respecting such
demand, call or other event pursuant to which such
assurances or obligations have become due or payable
and the basis on which the Cdn. Borrower has made its
determination that such assurances or obligations
would not be accrued as a liability of such Restricted
Party in accordance with GAAP and has updated such
notice from time to time as required under subsection
8.01(b), and (B) the Administrative Agent, acting
reasonably, has given its written approval to such
assurances or obligations continuing to be subject to
this clause and has not subsequently, acting
reasonably, withdrawn such approval by written notice
to the Canadian Borrower;
(ii) the Independent Subsidiary for whose benefit such assurances
or obligations are provided has fully indemnified the
Restricted Party providing such assurances or obligations for
all payments, losses, damages and expenses which such
Restricted Party may pay or incur in respect of such
assurances or obligations; and
(iii) the aggregate amount of:
(x) all such assurances and obligations at any time from
such Restricted Party and all other Restricted Parties
relative to all Independent Subsidiaries and all
Bonded Services;
less
(y) the aggregate amount of all guarantees and
performance or other similar bonds (to a maximum
amount relative to any Bonded Services of
the assurances and obligations of the Restricted
Parties relative to such Bonded Services) then issued
and outstanding from financially sound and reputable
bonding or surety companies
21
SECTION 1.01
- 13 -
licensed to provide such guarantees or bonds in the
jurisdiction where the applicable Bonded Services are
to be provided and provided in favour of the
Independent Subsidiary for whose benefit such
assurances or obligations are provided (and also, for
any such assurances or obligations provided after the
date of this Agreement, in favour of the Restricted
Party providing such assurances or obligations);
do not exceed U.S. $150,000,000 (or the Equivalent Amount
in any other currency or currencies).
"CONTRACTUAL OBLIGATION" shall mean, with respect to any Person, any
provision of any Lien issued by, or otherwise applicable to any of the property
of, such Person or of any contract, agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"CORPORATE SEPARATENESS COVENANT AND ASSURANCE AGREEMENT" shall mean an
agreement in substantially the form of Schedule 2, or in such other form as the
Administrative Agent, acting reasonably, may request in the future having
regard to any judicial or statutory developments respecting the principle of
substantive consolidation, from an Independent Subsidiary in favour of the
Borrowers and the Secured Parties providing agreements, undertakings and
covenants from the Independent Subsidiary respecting such Independent
Subsidiary's separate and independent operations and creditors for the purpose
of assuring that such Independent Subsidiary conducts its business and
operation in all respects so as, to the extent possible, to assure that a court
would not apply the principle of substantive consolidation so as to permit the
creditors of such Independent Subsidiary or its Subsidiaries to have Recourse
Against any of the Restricted Parties.
"CREDIT" shall have the meaning specified in Section 2.01.
"CREDIT DOCUMENTS" shall mean this Agreement, all present and future
Security, all present and future Corporate Separateness Covenant and Assurance
Agreements and Tax Sharing Agreements, and all other present and future
documents, certificates and instruments delivered by a Restricted Party to the
Administrative Agent or the Lenders pursuant to, or in respect of, any such
documents, in each case as the same may from time to time be supplemented,
amended or restated, and "CREDIT DOCUMENT" shall mean any one of the Credit
Documents.
"CROSS BORDER LENDERS" shall mean the Cdn. Cross Border Lenders and the
U.S. Cross Border Lenders, and "CROSS BORDER LENDER" shall mean any one of the
Cross Border Lenders.
22
SECTION 1.01
- 14 -
"CURRENT ASSETS" shall mean, at any time, all current assets of the
Restricted Parties determined as of such time on a Modified Consolidated basis
and otherwise in accordance with GAAP.
"CURRENT LIABILITIES" shall mean, at any time, all current liabilities of
the Restricted Parties determined as of such time on a Modified Consolidated
basis and otherwise in accordance with GAAP.
"DEBT" shall mean, at any time, all items which would, on a Modified
Consolidated basis and otherwise in accordance with GAAP, then be classified as
a liability on a balance sheet of the Restricted Parties or in the notes
thereto (provided that, for greater certainty, the only items included in the
notes thereto which are intended to be treated as debt would include letters of
credit, guarantees, performance bonds or assurances and other similar forms of
contingent liabilities) and to the extent not otherwise included pursuant to
the preceding provisions of this definition shall include, without limitation
and without duplication, any item which is (i) an obligation of any Restricted
Party in respect of borrowed money or for the deferred purchase price of
property or services or an obligation of any Restricted Party which is
evidenced by a note, bond, debenture or other similar instrument, (ii) a
transfer with recourse or with an obligation to repurchase, to the extent of
the liability of any Restricted Party with respect thereto, (iii) an obligation
secured by any Lien on any property of any Restricted Party to the extent
attributable to its respective interest in such property, even though it has
not assumed or become liable for the payment thereof, (iv) all Capitalized
Lease Obligations of the Restricted Parties, (v) an obligation arising in
connection with an acceptance facility or letter of credit or letter of
guarantee issued for the account of any Restricted Party, (vi) a Contingent
Obligation of any Restricted Party, (vii) the aggregate amount at which any
shares in the capital of any Restricted Party which are redeemable or
retractable at the option of the holder of such shares may be redeemed or
retracted, or (viii) Debt or Contingent Obligations of another Person assumed
or acquired by any Restricted Party, or in respect of which a Restricted Party
otherwise becomes liable, in connection with, or as a result of, any
Acquisition; provided, however, that there shall not be included for the
purpose of this definition any item which is on account of reserves for general
contingencies or on account of reserves for environmental compliance or
liabilities or which constitutes a trade payable or other payables incurred in
the ordinary course of business.
"DEBT TO EBITDA COVENANT RATIO" shall mean, on any day, the ratio of (a)
Debt on such day to (b) EBITDA for the Reference Financial Period for such day.
"DEBT TO EBITDA PRICING ADJUSTMENT RATIO" shall mean:
(a) on any Pricing Adjustment Date, the ratio of (i) Debt on the last
day of the Reference Financial Period for such Pricing Adjustment
Date to (ii) EBITDA for the Reference Financial Period for such
Pricing Adjustment Date (by way of
23
SECTION 1.01
- 15 -
example the Reference Financial Period for the Pricing Adjustment
Date which occurs on January 1, 1998 is the four Financial Quarters
ending September 30, 1997 and, accordingly, the Debt to EBITDA
Pricing Adjustment Ratio on such Pricing Adjustment Date is the
ratio of Debt on September 30, 1997 to EBITDA for the four
Financial Quarters ending September 30, 1997); and
(b) on September 1, 1997, the ratio of (i) June 30 Pro Forma Debt to
(ii) June 30 Pro Forma EBITDA.
"DEEMED PROCEEDS OF DISPOSITION AMOUNT" relative to any Disposition shall
have the meaning specified in subsection 8.02(d).
"DEEMED EXCESS PROCEEDS OF DISPOSITION AMOUNT" relative to any Disposition
shall have the meaning specified in subsection 8.02(d).
"DEFAULT" shall mean any event, act, omission or condition which with the
giving of notice or the passage of time, or both, would result in an Event of
Default.
"DEPRECIATION EXPENSE" shall mean, with respect to any period,
depreciation, amortization, depletion and other like reductions to income of
the Restricted Parties for such period not involving any outlay of cash,
determined on a Modified Consolidated basis and otherwise in accordance with
GAAP.
"DISCHARGE" when used as a verb, includes add, deposit, leak or emit and,
when used as a noun includes addition, deposit, emission or leak.
"DISPOSITION" shall mean any sale, assignment, transfer, conveyance or
other disposition of any nature or kind whatsoever of any property or of any
right, title or interest in or to any property, and the verb "DISPOSE" shall
have a correlative meaning.
"DOCUMENTATION AGENTS" shall mean Dresdner Bank Canada, Dresdner Bank AG
New York Branch and Royal Bank of Canada in their capacity as documentation
agents under this Agreement.
"DRAFT" shall have the meaning specified in subsection 2.05(1).
"EBITDA" shall mean, for any period, Net Income for such period:
(a) increased by the sum of (i) Interest Expense for such period,
(ii) Income Tax Expense for such period, (iii) Depreciation Expense
for such period, and (iv) unusual or non-recurring non-cash charges
incurred during such period in
24
SECTION 1.01
- 16 -
connection with corporate restructurings which require an accrual
for any future period in accordance with GAAP, in each such case
to the extent that such amounts were included in the calculation of
Net Income for such period; and
(b) decreased by all cash payments during such period relating to
non-cash charges that were added back under clause (a)(iv) above in
determining EBITDA in any prior period;
provided that EBITDA shall be adjusted from time to time as provided for in
Section 1.03.
"ELIGIBLE AFFILIATE" of the Administrative Agent, any Other Agent or a
Lender shall mean an Affiliate of any such Person which has executed and
delivered to the Administrative Agent an acknowledgement and agreement in the
form of Schedule 3 agreeing to be bound by the provision of Sections 6.05 and
9.03 and Article Eleven of this Agreement in connection with any
Lender/Borrower Hedging Arrangement to which such Person is from time to time a
party.
"ENVIRONMENTAL ACTIVITY" shall mean any past, present or future activity,
event or circumstance in respect of a Contaminant, including, without
limitation, its storage, use, holding, collection, purchase, accumulation,
assessment, generation, manufacture, construction, processing, treatment,
stabilization, disposition, handling or transportation, or its Release, escape,
leaching, dispersal or migration into or movement through the Natural
Environment.
"ENVIRONMENTAL LAW" shall mean at any time any and all of the then
applicable international, federal, provincial, state, municipal or local Laws,
statutes, regulations, codes, rules, treaties, orders, judgments, decrees,
resolutions, guidelines, policies, ordinances, official directives and all
authorizations relating to the Natural Environment or any Environmental
Activity.
"EQUIVALENT AMOUNT" shall mean, with respect to any two currencies, the
amount obtained in one such currency when an amount in the other currency is
translated into the first currency using the spot wholesale transactions buying
rate of the Bank of Canada for the purchase of the applicable amount of the
first currency with the other currency in effect as of 12:00 noon on the
Business Day with respect to which such computation is required for the purpose
of this Agreement or, in the absence of such a buying rate on such date, using
such other rate as the Administrative Agent may reasonably select.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
25
SECTION 1.01
- 17 -
"ERISA AFFILIATE" shall mean any corporation, trade or business that is,
along with a Restricted Party, a member of a controlled group of corporations
or a controlled group of trades or businesses, as described in section 414 of
the Code, or section 4001 of ERISA.
"EVENT OF DEFAULT" shall mean an event specified in Section 9.01.
"EXCLUDED TAXES" shall mean, in relation to any Person, those Taxes which
are imposed or levied by any jurisdiction or any political subdivision of such
jurisdiction solely as a result of such Person (a) being organized under the
laws of such jurisdiction or any political subdivision of such jurisdiction,
(b) having its principal office or lending office in such jurisdiction, or (c)
not dealing at arm's length (as defined for the purposes of any taxing statute
in the applicable jurisdiction) with a Borrower, or which would not have been
imposed had such Person satisfied a relevant authority that such Person was not
a Person mentioned in clause (a), (b) or (c) above; but for greater certainty
shall not include any sales, goods or services, or harmonized sales and goods
and services taxes payable under the laws of such jurisdiction or any political
subdivision of such jurisdiction with respect to any goods or services made
available by the Administrative Agent or any Lender to any Restricted Party
under any Credit Document.
"EXISTING ALLWASTE AND SERV TECH BANK CREDIT AGREEMENTS" shall mean (a)
the November 30, 1993 credit agreement between Allwaste, as borrower, Texas
Commerce Bank National Association as agent and the various financial
institutions parties to such agreement as lenders as such agreement may have
been amended, and (b) the May 18, 1995 credit agreement between Serv Tech, as
borrower, Texas Commerce Bank National Association as agent and the parties to
such agreement as lenders as such agreement may have been amended.
"EXISTING BANK DEBT" shall mean:
(a) all debts and liabilities of the Borrowers under or in connection
with the Existing Philip Bank Credit Agreement and the security and
other documents delivered under or in connection with the Existing
Philip Bank Credit Agreement other than the Pre-existing
Accommodation which is deemed to be outstanding Accommodation under
this Agreement pursuant to Section 2.11; and
(b) all debts and liabilities of Allwaste and its Subsidiaries and Serv
Tech and its Subsidiaries under or in connection with the Existing
Allwaste and Serv Tech Bank Credit Agreements and the security and
other documents delivered under or in connection with the Existing
Allwaste and Serv Tech Bank Credit Agreements.
"EXISTING PHILIP BANK CREDIT AGREEMENT" shall mean the September 30, 1996
credit agreement, as amended, among the Cdn. Borrower and the U.S. Borrower, as
borrowers, Canadian Imperial Bank of Commerce, as administrative agent, Bankers
Trust, BT Bank of
26
SECTION 1.01
- 18 -
Canada, Dresdner Bank AG New York and Grand Cayman Branches, Dresdner Bank
Canada and Royal Bank of Canada, as managing agents, and the various financial
institutions party to such credit agreement as lenders.
"FEDERAL FUNDS RATE" shall mean, for any day, an annual interest rate,
expressed on the basis of a year of 360 days, equal to the weighted average of
the rates on overnight United States federal funds transactions with members of
the Federal Reserve System arranged by United States federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or for any
Business Day on which such rate is not so published, the arithmetic average of
the quotations for such day on such transactions received by the Administrative
Agent from three United States federal funds brokers of recognized standing
selected by it.
"FINANCIAL ASSISTANCE" given by any Person (the "FINANCIAL ASSISTANCE
PROVIDER") to or for the account or benefit of any other Person (the "FINANCIAL
ASSISTANCE RECIPIENT") shall mean any direct or indirect financial assistance
of any nature, kind or description whatsoever of or from such Financial
Assistance Provider, or of or from any other Person with Recourse Against such
Financial Assistance Provider or any of its property, to or for the account or
benefit of the Financial Assistance Recipient (including Investments in a
Financial Assistance Recipient, Contingent Obligations for the benefit of a
Financial Assistance Recipient, Acquisitions from a Financial Assistance
Recipient, and gifts or gratuities to or for the account or benefit of a
Financial Assistance Recipient).
"FINANCIAL QUARTER" shall mean one of the financial quarters of the
Restricted Parties being the period of (a) January, February and March, (b)
April, May and June, (c) July, August and September, and (d) October, November
and December.
"FINANCIAL YEAR" shall mean a financial year of the Restricted Parties
being the period from and including January 1 in a calendar year to and
including December 31 in the same calendar year.
"FIXED CHARGE RATIO" on any day shall mean the ratio of (a) EBITDA for the
Reference Financial Period for such day decreased by the amount of all Capital
Expenditures made by the Restricted Parties during such Reference Financial
Period to (b) Interest Expense for such Reference Financial Period plus
Restricted Payments on preferred shares of the Cdn. Borrower made during such
Reference Financial Period.
"GAAP" shall mean (a) with respect to all financial terms defined in this
Agreement, the calculation of the interest rates, Bankers' Acceptance fees,
Letter of Credit fees and standby fees set forth in Article Three and the
various financial covenants under Section 8.03, those accounting principles
which are recognized as being generally accepted in Canada as set out in
27
SECTION 1.01
- 19 -
the handbook published by the Canadian Institute of Chartered Accountants as in
effect on December 31, 1996, and (b) for all other purposes under this
Agreement, those accounting principles which are recognized as being generally
accepted in Canada as set out in the handbook published by the Canadian
Institute of Chartered Accountants as in effect from time to time.
"GOVERNMENTAL AUTHORITY" shall mean any government, parliament,
legislature, regulatory authority, agency, commission, tribunal, department,
commission, board, instrumentality, court, arbitration board or arbitrator or
other law, regulation or rule making entity (including a Minister of the Crown)
having or purporting to have jurisdiction on behalf of, or pursuant to the laws
of, any country in which any Restricted Party is incorporated, continued,
amalgamated, merged or otherwise created or established or in which any
Restricted Party carries on business or holds property, or any province,
territory, state, municipality, district or political subdivision of any such
country or of any such state, province or territory of such country.
"GUARANTOR SUBSIDIARY" shall mean, at any time, a Restricted Subsidiary
which is at such time party to a valid and enforceable guarantee under which
such Subsidiary has guaranteed the due payment and performance of all of the
present and future debts and liabilities of either or both of the Borrowers to
the Administrative Agent, the Other Agents, the Lenders and their respective
Eligible Affiliates under or in respect of the Credit Documents and the
Lender/Borrower Hedging Arrangements, and "GUARANTOR SUBSIDIARIES" shall mean
all of the Guarantor Subsidiaries.
"HEDGING ARRANGEMENT" shall mean any arrangement or transaction between a
Restricted Party and any other Person which is a rate swap transaction, basis
swap, forward rate transaction, commodity swap, interest rate option, forward
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of such transactions or arrangements).
"HOSTILE TAKE-OVER BID" shall mean a Take-Over Bid by a Restricted Party
or in which a Restricted Party is involved, in respect of which the board of
directors of the corporation whose securities are subject to such Take-Over Bid
has recommended rejection of such Take-Over Bid.
"IN WRITING" or "WRITTEN" shall mean any form of written communication or
a communication by means of facsimile or telex device.
"INCLUDING" shall mean "including without limitation", and "INCLUDES"
shall mean "includes without limitation".
"INCOME TAX EXPENSE" shall mean, with respect to any period, the aggregate
of all taxes on the income of the Restricted Parties for such period, whether
current or deferred (net of any
28
SECTION 1.01
- 20 -
incentive tax credits or other similar credits) determined on a Modified
Consolidated basis and otherwise in accordance with GAAP.
"INDEPENDENT SUBSIDIARY" shall mean:
(a) those existing Subsidiaries of the Cdn. Borrower designated by the
Cdn. Borrower and the Co-Arrangers as Independent Subsidiaries and
referred to in Schedule 4;
(b) each Person which becomes a Subsidiary of the Cdn. Borrower after
the date of this Agreement as a result of an Acquisition and
(i) in respect of which such Acquisition has been financed
entirely from, or from any combination of, the proceeds of
an issuance of common share equity of the Cdn. Borrower,
property of Independent Subsidiaries and any Investments
permitted under subsection 8.02(e), provided that such
Acquisition has been completed, and the ongoing business and
operations of such Subsidiary have been structured so as to
continue, without any Financial Assistance from any
Restricted Party and without Recourse Against any Restricted
Party by any creditors of such Subsidiary or any of its
Subsidiaries (other than in either case pursuant to any such
Financial Assistance permitted under subsection 8.02(l)),
and
(ii) which is designated as an Independent
Subsidiary by written notice from the Cdn. Borrower to the
Administrative Agent at the time of such Acquisition, and
(c) each future Subsidiary of the Cdn. Borrower which is designated as
an Independent Subsidiary by the Cdn. Borrower and consented to in
writing as such by the Administrative Agent and the Required Lenders
in each case subject to the terms and conditions, if any, on which
such consent is provided by the Administrative Agent and the
Required Lenders.
In all events any Subsidiary of an Independent Subsidiary shall be deemed to
also be an Independent Subsidiary and any Subsidiary of the Cdn. Borrower
(other than Phencorp International Finance Inc.) which in the opinion of the
Required Lenders is unable to deliver a valid and enforceable unlimited
guarantee of all of the present and future debts and liabilities of one or both
of the Borrowers under the Credit Documents shall, on delivery of written
notice to such effect to the Cdn. Borrower from the Required Lenders (or from
the Administrative Agent with the consent of the Required Lenders), also be
deemed to be an Independent Subsidiary.
29
SECTION 1.01
- 21 -
"INTEREST COVERAGE RATIO" shall mean on any day the ratio of (a) EBITDA
for the Reference Financial Period for such day to (b) Interest Expense for the
Reference Financial Period for such day.
"INTEREST EXPENSE" shall mean, for any period, the aggregate amount of
interest and other financing charges, whether capitalized or expensed by the
Restricted Parties, on account of such period with respect to Debt including
interest, discount and financing fees, commissions, discounts, the interest or
time value of money component of costs related to factoring or securitizing
receivables or monetizing inventory and other fees and charges payable with
respect to letters of credit and bankers' acceptance financing, standby fees,
the interest component of Capitalized Lease Obligations and net payments (if
any) pursuant to Hedging Arrangements involving interest, but excluding any
amount, such as amortization of debt discount and expenses, which would qualify
as Depreciation Expense and the amount reflected in income for such period in
respect of gains (or losses) attributable to translation of Debt from one
currency to another currency, all as determined on a Modified Consolidated
basis and otherwise in accordance with GAAP, provided that Interest Expense
shall be adjusted from time to time as provided for in Section 1.03.
"INVESTMENT" shall mean, with respect to any Person, any direct or
indirect investment in or purchase or other acquisition of the securities of or
an equity interest in any other Person, any loan or advance to, or arrangement
for the purpose of providing funds or credit to (excluding extensions of trade
credit in the ordinary course of business in accordance with customary
commercial terms), or capital contribution to (whether by means of a transfer
of cash or other property or any payment for property or services for the
account or use of) any other Person. For greater certainty an Acquisition
shall not be treated as an Investment.
"INVESTMENT GRADE RATING" shall mean a rating of the long term debt of the
Cdn. Borrower of both BBB- or higher by S&P (or the equivalent rating if S&P
should change its rating categories) and Baa3 or higher by Moody's (or the
equivalent rating if Moody's should change its rating categories).
"JUNE 30 PRO FORMA DEBT" shall mean the pro forma Debt of the Restricted
Parties shown on the balance sheet of the Restricted Parties (including
Allwaste and its Subsidiaries, Serv Tech and its Subsidiaries, and all
Acquisitions made by the Restricted Parties up to and including July 31, 1997)
forming part of the June 30 Pro Forma Financial Statements.
"JUNE 30 PRO FORMA EBITDA" shall mean EBITDA for the four Financial
Quarters ending June 30, 1997 determined on a pro forma basis to include and
take into account the financial performance of Allwaste and its Subsidiaries,
Serv Tech and its Subsidiaries, and all other Acquisitions made by the
Restricted Parties up to and including July 31, 1997, in each case
30
SECTION 1.01
- 22 -
during the four financial quarters for each such corporation ending as of the
date of the most recent publicly available financial statements for such
corporation.
"JUNE 30 PRO FORMA FINANCIAL STATEMENTS" shall mean Modified Consolidated
quarterly financial statements for the Restricted Parties for the Financial
Quarter ending June 30, 1997 prepared on a pro forma basis to include and take
into account
(a) the financial position on such date, and the financial performance
during the period ended on such date, of Allwaste and its
Subsidiaries, Serv Tech and its Subsidiaries, and all other
Acquisitions made by the Restricted Parties up to and including July
31, 1997; and
(b) all Debt incurred or assumed by the Restricted Parties after June
30, 1997 in connection with the Acquisitions referred to in clause
(a) of this definition (including Debt of the Targets of such
Acquisitions and their Subsidiaries which has not been repaid as at
the date of delivery of such financial statements).
"LAWS" shall have the meaning specified in the definition of the term
"Applicable Law".
"LC ISSUERS" shall mean the Cdn. LC Issuer and the U.S. LC Issuer, and "LC
ISSUER" shall mean either one of the LC Issuers.
"LC LENDERS" shall mean (a) the Cdn. LC Lenders, (b) the U.S. LC Lenders
and (c) only in connection with the Pre-existing Lcs, the Cdn. Operating Lender
and the U.S. Operating Lenders in their respective capacities as issuers of the
Pre-existing Lcs, and "LC LENDER" shall mean any one of the LC Lenders.
"LC LINE" shall have the meaning specified in subsection 2.01(g).
"LENDER/BORROWER HEDGING ARRANGEMENT" shall mean a Hedging Arrangement
which is (a) otherwise permitted pursuant to subsection 8.02(r), (b) entered
into by a Borrower and any of the Administrative Agent, any Other Agent, a
Lender or an Eligible Affiliate of any such Person, and (c) in respect of which
the Administrative Agent has received written notice from the applicable Other
Agent, Lender or Eligible Affiliate providing the Administrative Agent with
particulars of such Hedging Agreement and "LENDER/BORROWER HEDGING
ARRANGEMENTS" shall mean all of the Lender/Borrower Hedging Arrangements from
time to time.
"LENDERS" shall mean the Cdn. Only Lenders, the Cross Border Lenders, the
U.S. Only Lenders, the Cdn. Operating Lender, the U.S. Operating Lenders and
the LC Lenders and "LENDER" shall mean any one of the Lenders.
31
SECTION 1.01
- 23 -
"LETTER OF CREDIT" shall mean a letter of credit issued under the LC Line
as provided in Section 2.06 by the Cdn. LC Issuer on behalf of the Cdn. LC
Lenders for the account of the Cdn. Borrower or a standby letter of credit
issued under the LC Line as provided for in Section 2.06 by the U.S. LC Issuer
on behalf of the U.S. LC Lenders for the account of the U.S. Borrower and, for
greater certainty, shall include all Pre-existing Lcs as provided for in
Section 2.11.
"LIBOR" shall mean, with respect to any LIBOR Period:
(a) for each LIBOR Loan from a Cdn. Only Lender, a Cdn. Cross Border
Lender or the Cdn. Operating Lender, the Base LIBOR for such LIBOR
Loan for such LIBOR Period, and
(b) for each LIBOR Loan from a U.S. Only Lender, a U.S. Cross Border
Lender or a U.S. Operating Lender, the rate obtained by dividing (i)
the Base LIBOR for such LIBOR Loan for such LIBOR Period by (ii) a
percentage equal to 1 minus the stated maximum rate (stated as a
decimal and rounded upwards to the nearest 1/16 of 1%) of all
reserves required to be maintained against Eurocurrency liabilities
as specified in Regulation D (or against any other category of
liabilities which includes deposits by reference to which the
interest rate on LIBOR Loans is determined or any category of
extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents).
"LIBOR LOAN" shall mean any Loan in U.S. Dollars with respect to which
interest is calculated under this Agreement for the time being on the basis of
the LIBOR and, for greater certainty, shall include all Pre-existing LIBOR
Loans as provided for in Section 2.11.
"LIBOR PERIOD" shall mean, from time to time with respect to a LIBOR Loan,
the applicable interest period of one, three or six months, as selected in
accordance with Section 3.05 and any other applicable provision of this
Agreement.
"LIEN" shall mean any mortgage, charge, pledge, hypothecation, lien
(statutory or otherwise), security interest or other encumbrance of any nature
however arising, or any other agreement or arrangement creating in favour of
any creditor a right in respect of any particular property that is prior to the
right of any other creditor in respect of such property, and includes the right
of a lessor under a Capitalized Lease Obligation.
"LOAN" shall mean the principal amount of Cdn. Dollars or U.S. Dollars
advanced by a Lender to a Borrower on any Borrowing Date pursuant to a Notice
of Borrowing or made or deemed to have been made by an Operating Lender by way
of overdraft pursuant to Section 2.07 (which, for greater certainty, shall
include all Pre-existing Prime Rate Overdraft Loans, all Pre-existing U.S. Base
Rate Overdraft Loans and all Pre-existing U.S. Reference Rate Overdraft
32
SECTION 1.01
- 24 -
Loans as provided for in Section 2.11) or made or deemed to have been made by a
Lender pursuant to subsection 2.05(7) or subsection 2.06(3), and "TYPE" of Loan
shall refer to whether a particular Loan is a Prime Rate Loan, a U.S. Base Rate
Loan, a U.S. Reference Rate Loan or a LIBOR Loan.
"MARGIN STOCK" shall have the meaning given to such term under Regulation
U (12 CFR Part 221).
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a) the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of the Restricted Parties considered as a whole, or (b) the ability
of any of the Restricted Parties to pay or perform any of their respective
liabilities or obligations under any of the Credit Documents, or (c) the right,
entitlement or ability of the Administrative Agent or the Lenders to enforce
any of the debts, liabilities or obligations of any of the Restricted Parties
under, or to exercise or enforce any of their respective rights, entitlements
or benefits under, any of the Credit Documents.
"MATERIAL RESTRICTED PARTIES" shall mean, at any time, the Borrowers and
all Restricted Subsidiaries which are not at such time Non Material Restricted
Subsidiaries, and "MATERIAL RESTRICTED PARTY" shall mean any one of the
Material Restricted Parties.
"MATURITY DATE" shall mean August 12, 2002.
"MODIFIED CONSOLIDATED" shall mean, when used with respect to any
financial term, financial covenant or financial statements, the consolidation
of the applicable financial position, financial performance or financial
statements of the Restricted Parties without regard to any other Person which
is not a Restricted Party, irrespective of whether or not such other Person is
a Subsidiary of a Restricted Party or is a Person in which a Restricted Party
has an equity or ownership interest.
"MOODY'S" shall mean Moody's Investors Service, Inc. and its successors.
"NATURAL ENVIRONMENT" shall mean the air, land, subsoil, surface water,
ground water, and property or any combination or part thereof in any
jurisdiction in which a Borrower or any of its Subsidiaries carries on
business.
"NET INCOME" shall mean, for any period, the net income (loss) of the
Restricted Parties for such period, determined on a Modified Consolidated basis
after allowance for minority interests and otherwise in accordance with GAAP
provided that, when used in the definition of EBITDA, "Net Income" shall mean
Net Income as so determined but excluding, in each case net of applicable
taxes, (a) any gain or loss arising from the Disposition of capital assets
(other than any Disposition of capital assets made in the ordinary course of
business) or the closure of plants
33
SECTION 1.01
- 25 -
or undertakings, (b) any gain or loss arising from any write-up or write-down
of assets or goodwill, (c) any earnings or losses of any other Person
substantially all of the assets of which have been acquired by a Restricted
Party in any manner to the extent that such earnings or losses were realized by
such other Person prior to the effective date of such acquisition, (d) net
earnings of any Person (other than a Restricted Party) in which a Restricted
Party has an ownership or equity interest unless such earnings have actually
been received by such Restricted Party in the form of cash distributions, (e)
the earnings or losses of any Person to which assets of a Restricted Party have
been Disposed of or into or with which a Restricted Party has merged or
amalgamated, to the extent that such earnings or losses arose prior to the date
of such transaction, and (f) any gains or losses arising from the Disposition
of any securities owned by a Restricted Party (other than securities held by
Philip Barbados and Phencorp International Finance Inc.).
"NON ARM'S LENGTH PERSON" shall mean any director, officer, employee,
Affiliate or Associate of the Cdn. Borrower or any of its Subsidiaries or
Affiliates or any other Person who does not deal at arm's length with the Cdn.
Borrower or any of its Subsidiaries or Affiliates within the meaning of such
concept as used in the Income Tax Act (Canada).
"NON BA LENDER" shall mean any Lender which is a Cdn. Only Lender, a Cdn.
Cross Border Lender or the Cdn. Operating Lender, and which is not a BA Lender.
"NON MATERIAL RESTRICTED SUBSIDIARIES" shall mean, at any time, those
Restricted Subsidiaries (together with their Restricted Subsidiaries) listed in
Schedule 26, as such Schedule may be amended from time to time as provided in
subsection 8.01(w) provided that:
(a) no such Restricted Subsidiary shall be a Non Material Restricted
Subsidiary at any time if:
(i) the revenue of such Restricted Subsidiary and its Subsidiaries
(other than Independent Subsidiaries) for the most recently
completed four Financial Quarters exceeded 1% of the aggregate
revenue of all of the Restricted Parties for such four
Financial Quarters; or
(ii) the book value of the property of such Restricted Subsidiary
and its Subsidiaries (other than Independent Subsidiaries) at
such time exceeds 1% of the book value at such time of all
property of all of the Restricted Parties; or
(iii) such Restricted Subsidiary or any of its Subsidiaries owns,
leases, licenses or otherwise holds at such time any property
which is material to the undertaking, business, operation or
property of any Material Restricted Party; and
34
SECTION 1.01
- 26 -
(b) none of such Restricted Subsidiaries shall be Non Material
Restricted Subsidiaries at such time if:
(i) the aggregate revenue of all such Restricted Subsidiaries
and their Subsidiaries (other than Independent Subsidiaries)
for the most recently completed four Financial Quarters
exceeded 15% of the aggregate revenue of all of the
Restricted Parties for such four Financial Quarters; or
(ii) the book value of the property of all such Restricted
Subsidiaries and their Subsidiaries (other than Independent
Subsidiaries) at such time exceeds 15% of the book value at
such time of all property of all of the Restricted Parties.
"NON RECOURSE ACKNOWLEDGEMENT AND UNDERTAKING" shall mean an agreement in
the form of Schedule 5 from a creditor of an Independent Subsidiary in favour
of the Secured Parties acknowledging and agreeing that (a) such Independent
Subsidiary is separate and independent from the Restricted Parties, (b) such
creditor has granted credit to such Independent Subsidiary without regard to or
reliance on any of the Restricted Parties or any of their property or financial
positions, and (c) such creditor will not have or claim Recourse Against any
Restricted Party with respect to any of the present or future debts or
liabilities of such Independent Subsidiary to such creditor.
"NON-U.S. PENSION PLAN" shall mean any plan, fund (including, without
limitation, any superannuation or pension fund) or other similar program
established or maintained outside the United States of America by any
Restricted Party or to which any Restricted Party or any Affiliate of a
Restricted Party may have any liability primarily for the benefit of employees
or former employees of such Restricted Party residing outside the United States
of America, which plan, fund or other similar program provides, or results in,
retirement income, a deferral of income in contemplation of retirement or
payments to be made upon termination of employment, and which plan is not
subject to ERISA or the Code.
"NON-U.S. WELFARE PLAN" shall mean any plan, fund or other similar program
other than a Non-U.S. Pension Plan established or maintained outside the United
States of America by any Restricted Party or to which any Restricted Party or
any Affiliate of a Restricted Party may have any liability primarily for the
benefit of employees or former employees of such Restricted Party residing
outside the United States of America, or results in health, medical,
disability, life insurance and other employee benefits, and which plan, fund or
other similar program is not subject to ERISA or the Code.
"NOTICE OF BORROWING" shall have the meaning specified in subsection
2.04(1).
35
SECTION 1.01
- 27 -
"NOTICE OF CONVERSION/RENEWAL" shall have the meaning specified in
subsection 2.04(1).
"OFFICER'S CERTIFICATE" shall mean a certificate in form satisfactory to
the Administrative Agent (a) in the case of any such certificate of a Borrower
delivered under subsections 8.01(a), 8.01(b), 8.01(g), 8.02(k) and 10.01(j),
signed by the President or the Chief Financial Officer of such Borrower (or in
the case of the environmental compliance certificate to be delivered under
subsection 8.01(b), the Executive Vice President, Corporate and Regulatory
Affairs of the Cdn. Borrower), and (b) in all other cases, of the applicable
corporation required to provide such certificate signed by the president or
vice president of such corporation or by such other of its senior officers as
may be acceptable to the Administrative Agent.
"OPERATING LENDERS" shall mean the Cdn. Operating Lender and the U.S.
Operating Lenders, and "OPERATING LENDER" shall mean any one of the Operating
Lenders.
"OPERATING LINES" shall mean the Cdn. Operating Line and the U.S.
Operating Lines, and "OPERATING LINE" shall mean any one of the Operating
Lines.
"OTHER AGENTS" shall mean the Syndication Agent, the Co-Arrangers and the
Documentation Agents, and "OTHER AGENT" shall mean any one of the Other Agents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"PENSION PLAN" shall mean a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to title I of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which any
Restricted Party or any ERISA Affiliate may have any liability, including any
liability by reason of having been a substantial employer within the meaning of
section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under section 4069 of ERISA.
"PERMANENT DISPOSITION REDUCTION AMOUNT" relative to any Disposition shall
have the meaning specified in subsection 8.02(d).
"PERMITS" shall mean all permits, licenses, approvals, franchises,
rights-of-way, easements and entitlements which any Restricted Party requires,
or is required to have, to own, lease or license its property or operate or
carry on the business conducted by it.
"PERMITTED LIENS" shall mean Liens referred to in Schedule 6.
"PERMITTED INDEBTEDNESS" shall mean the indebtedness referred to in
Schedule 7.
36
SECTION 1.01
- 28 -
"PERSON" is to be broadly interpreted and shall include an individual, a
corporation, a partnership, a trust, an unincorporated organization, a joint
venture, the government of a country or any political subdivision of a country,
or an agency or department of any such government, any other Governmental
Authority and the executors, administrators or other legal representatives of
an individual in such capacity.
"PHILIP DISCLOSURE DOCUMENTS" shall mean the Proxy Statement of Allwaste
and Prospectus of the Cdn. Borrower dated June 30, 1997 and filed by the Cdn.
Borrower with the United States Securities and Exchange Commission and the
Proxy Statement of Serv Tech and Prospectus of the Cdn. Borrower dated June 24,
1997 and filed by the Cdn. Borrower with the United States Securities and
Exchange Commission.
"PRE-EXISTING ACCOMMODATION" shall mean all Pre-existing BA Equivalent
Notes, Pre-existing Bas, Pre-existing Lcs, Pre-existing LIBOR Loans,
Pre-existing Prime Rate Overdraft Loans, Pre-existing U.S. Base Rate Overdraft
Loans and Pre-existing U.S. Reference Rate Overdraft Loans.
"PRE-EXISTING ACCOMMODATION LENDERS" shall mean, (a) in the case of the
Pre-existing Lcs, the LC Lenders, the Cdn. Operating Lender and the U.S.
Operating Lenders, (b) in the case of Pre-existing Prime Rate Overdraft Loans
and Pre-existing U.S. Base Rate Overdraft Loans, the Cdn. Operating Lender, (c)
in the case of Pre-existing U.S. Reference Rate Overdraft Loans, the U.S.
Operating Lenders, and (d) in the case of any other Pre-existing Accommodation
the applicable Lenders listed in Schedule 8 as the lender relative to such
Pre-existing Accommodation.
"PRE-EXISTING BA EQUIVALENT NOTES" shall mean the BA Equivalent Notes (as
defined in the Existing Philip Bank Credit Agreement) purchased by a
Pre-existing Accommodation Lender under the Existing Philip Bank Credit
Agreement and described in Part I of Schedule 8, all of which BA Equivalent
Notes are deemed, pursuant to the provisions of Section 2.11, to be BA
Equivalent Notes purchased by such Lender, and outstanding, under this
Agreement under the applicable Tranche specified in Schedule 8.
"PRE-EXISTING BAS" shall mean the bankers' acceptances accepted by a
Pre-existing Accommodation Lender under the Existing Philip Bank Credit
Agreement and described in Part II of Schedule 8, all of which bankers'
acceptances are deemed, pursuant to the provisions of Section 2.11, to be
Bankers' Acceptances accepted by such Lender, and outstanding, under this
Agreement under the applicable Tranche specified in Schedule 8.
"PRE-EXISTING LCS" shall mean the letters of credit issued by a
Pre-existing Accommodation Lender under the Existing Philip Bank Credit
Agreement and described in Part
37
SECTION 1.01
- 29 -
IV of Schedule 8, all of which letters of credit are deemed, pursuant to
the provisions of Section 2.11, to be (a) in the case of any such letters of
credit issued by Canadian Imperial Bank of Commerce, Letters of Credit issued
by the Cdn. LC Issuer on behalf of the Cdn. LC Lenders, and outstanding, under
this Agreement under the LC Line, (b) in the case of any such letters of credit
issued by Canadian Imperial Bank of Commerce, New York Agency, Letters of
Credit issued by the U.S. LC Issuer on behalf of the U.S. LC Lenders, and
outstanding, under this Agreement under the LC Line, (c) in the case of any
such letters of credit issued by the Cdn. Operating Lender, Letters of Credit
from the Cdn. Operating Lender issued, and outstanding, under this Agreement
under the Cdn. Operating Line, and (d) in the case of any such Letters of
Credit issued by a U.S. Operating Lender, Letters of Credit from such U.S.
Operating Lender issued, and outstanding, under this Agreement under the U.S.
Operating Line from such U.S. Operating Lender.
"PRE-EXISTING LIBOR LOANS" shall mean the libor loans made by a
Pre-existing Accommodation Lender under the Existing Philip Bank Credit
Agreement and described in Part III of Schedule 8, all of which libor loans are
deemed, pursuant to the provisions of Section 2.11, to be LIBOR Loans made by
such Lender, and outstanding, under this Agreement under the applicable Tranche
specified in Schedule 8.
"PRE-EXISTING PRIME RATE OVERDRAFT LOANS" shall mean the aggregate amount
of Cdn. Dollar prime rate loans outstanding by way of overdraft under Tranche
A-4 of the Existing Philip Bank Credit Agreement on the Closing Date, all of
which amounts are deemed, pursuant to the provisions of Section 2.11, to be
Prime Rate Loans made by way of overdraft by the Cdn. Operating Lender, and
outstanding, under this Agreement under the Cdn. Operating Line.
"PRE-EXISTING U.S. BASE RATE OVERDRAFT LOANS" shall mean the aggregate
amount of U.S. Dollar base rate loans outstanding by way of overdraft under
Tranche A-4 of the Existing Philip Bank Credit Agreement on the Closing Date,
all of which amounts are deemed, pursuant to the provisions of Section 2.11, to
be U.S. Base Rate Loans made by way of overdraft by the Cdn. Operating Lender,
and outstanding, under this Agreement under the Cdn. Operating Line.
"PRE-EXISTING U.S. REFERENCE RATE OVERDRAFT LOANS" shall mean the
aggregate amount of U.S. Dollar reference rate loans outstanding by way of
overdraft under Tranche A-5 of the Existing Philip Bank Credit Agreement on the
Closing Date, all of which amounts are deemed, pursuant to the provisions of
Section 2.11, to be U.S. Reference Rate Loans made by way of overdraft by the
applicable U.S. Operating Lender, and outstanding, under this Agreement under
the U.S. Operating Line from such U.S. Operating Lender.
"PRICING ADJUSTMENT DATE" shall mean the first day of each Financial
Quarter.
38
SECTION 1.01
- 30 -
"PRIME RATE" shall mean a fluctuating rate of interest per annum,
expressed on the basis of a year of 365 or 366 days, as applicable, which is
equal at all times to the greater of:
(i) (x) in the case of Accommodation under the Credit (other than under
the Cdn. Operating Line) or other amounts in respect of which
interest is to be calculated under this Agreement on the basis of
the Prime Rate, the reference rate of interest (however designated)
of the Administrative Agent for determining interest chargeable by
it on Cdn. Dollar commercial loans made in Canada, and (y) in the
case of Accommodation under the Cdn. Operating Line, the reference
rate of interest (however designated) of the Cdn. Operating Lender
for determining interest chargeable by it on Cdn. Dollar
commercial loans made in Canada; and
(ii) 0.75% above CDOR from time to time for 30 day bankers' acceptances.
"PRIME RATE LOAN" shall mean any Loan in Cdn. Dollars with respect to
which interest is calculated under this Agreement for the time being on the
basis of the Prime Rate.
"PRO FORMA FINANCIAL STATEMENTS" shall mean the Modified Consolidated
quarterly financial statements of the Restricted Parties for the period ending
on March 31, 1997 prepared on a pro forma basis to add and take into account
the initial Borrowing and the financial position on such date, and the
financial performance during the period ending on such date, of all
Acquisitions made by the Restricted Parties up to and including July 31, 1997.
"PROPERTY" shall include any asset or property of any nature, kind or
description whatsoever (whether real, personal or intellectual and whether
tangible or intangible) and any cash, receivables, revenue or undertaking,
whether or not shown on a balance sheet in accordance with GAAP.
"PURCHASE MONEY OBLIGATION" shall mean an obligation of a Restricted Party
incurred or assumed to finance the purchase price of any tangible personal
property acquired by such Restricted Party in the ordinary course of business,
provided that such obligation is incurred or assumed within 30 days after the
acquisition of such property and does not exceed the purchase price payable by
such Restricted Party for such property, and includes any extension, renewal or
refunding of any such obligation so long as the principal amount thereof
outstanding on the date of such extension, renewal or refunding is not
increased.
"RATEABLY" shall mean, at any time:
(a) for purposes other than Sections 9.03 and 11.02, as nearly as
practical in the opinion of the Administrative Agent, in accordance
with the proportion that the aggregate amounts owing under all
Credit Documents to the Administrative
39
SECTION 1.01
- 31 -
Agent, to any Other Agent or to any particular Lender at such time
is of the aggregate amounts owing under all Credit Documents to the
Administrative Agent, the Other Agents and all Lenders at such time,
or in accordance with the proportion that the outstanding
Accommodation from any particular Lender at such time from a
particular Borrower or from both Borrowers, as the case may be,
under a particular Tranche or Tranches is of the outstanding
Accommodation from all Lenders at such time from such Borrower or
from both Borrowers, as the case may be, under such Tranche or
Tranches; and
(b) in the case of Sections 9.03 (subject to the provisions of subsection
9.03(5)) and 11.02, in accordance with the proportion that the
aggregate amounts owing under all Secured Party Documents to any
Secured Party at such time is of the aggregate amounts owing under
all Secured Party Documents to all Secured Parties at such time;
and "RATEABLE" shall have an analogous meaning.
"RECOURSE AGAINST " any Person shall mean any direct or indirect right,
entitlement or recourse of any kind, nature or description whatsoever (whether
by agreement, pursuant to statute, at law, in equity or otherwise) to or
against such Person or any of such Person's property or credit.
"REFERENCE FINANCIAL PERIOD" shall mean:
(a) when used to determine any pricing adjustments for interest, Bankers'
Acceptance fees, Letter of Credit fees or standby fees under Article
Three, in each case, for any Pricing Adjustment Date, the four
consecutive Financial Quarters ending on the last day of the second
immediately preceding completed Financial Quarter (by way of
example, for the Pricing Adjustment Date which occurs on January 1,
1998, the Reference Financial Period is the four Financial Quarters
ending September 30, 1997 and for the Pricing Adjustment Date which
occurs on April 1, 1998, the Reference Financial Period is the four
Financial Quarters ending on December 31, 1997); and
(b) when used for any other purpose for any day
(i) if such day is the last day of a Financial Quarter, the four
consecutive Financial Quarters ending on such day; and
(ii) if such day is not the last day of a Financial Quarter, the
then most recently completed four Financial Quarters.
40
SECTION 1.01
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"REGISTRY OF COMMITMENTS" shall have the meaning specified in subsection
2.08(2).
"REGULATION D", "REGULATION G", "REGULATION T", "REGULATION U" and
"REGULATION X" shall mean Regulation D, Regulation G, Regulation T, Regulation
U and Regulation X of the Board of Governors of the United States Federal
Reserve System.
"REINVESTED" in the Restricted Parties, when used in connection with all
or any portion of any Deemed Excess Proceeds of Disposition Amount, shall mean
the use of funds by the Restricted Parties in an amount equal to, or to such
portion of, such Deemed Excess Proceeds of Disposition Amount to acquire
property, or to acquire a business or Person (in which case such Person may not
be an Independent Subsidiary) which results in the indirect acquisition by the
Restricted Parties of property, which has a fair market value at least equal to
such Deemed Excess Proceeds of Disposition Amount or such portion of such
Deemed Excess Proceeds of Disposition Amount, as the case may be, and which are
to be used in, and are required for use in, the operation of the business of
the Restricted Parties.
"RELATED BUSINESS" shall mean any business similar to the resource
recovery and industrial services business carried on at the date of this
Agreement by the Restricted Parties or any other resource recovery and
industrial services business.
"RELEASE" is to be broadly interpreted and shall include deposit, leak,
emit, add, spray, inject, inoculate, abandon, spill, seep, pour, empty, throw,
dump, place and exhaust, and when used as a noun has a similar meaning.
"REPORTABLE EVENT" shall mean an event described in Section 4043(c) of
ERISA with respect to a Pension Plan that is subject to Title IV of ERISA other
than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043.
"REQUIRED LENDERS" shall mean, at any time, (a) for the purpose of Section
9.02, the Lenders which are entitled to vote in respect of at least 66 and 2/3%
of the aggregate U.S. Dollar Amount of all Accommodation then outstanding, and
(b) for all other purposes of this Agreement, the Lenders whose Commitments (or
after the termination of the Commitments, U.S. Dollar Amount of outstanding
Accommodation) are at such time, in the aggregate, at least 66 and 2/3% of the
aggregate amount of all Commitments (or after the termination of the
Commitments, the U.S. Dollar Amount of all outstanding Accommodation) at such
time.
"REQUIREMENTS OF LAW" shall mean, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any Applicable Law, or determination of a Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
41
SECTION 1.01
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"RESTRICTED PARTIES" shall mean at any time the Borrowers and all
Restricted Subsidiaries at such time, and "RESTRICTED PARTY" shall mean any one
of the Restricted Parties.
"RESTRICTED PAYMENT" shall mean, with respect to any Person, any payment
by such Person (a) of any dividends on any shares of its capital, (b) on
account of, or for the purpose of setting apart any property for a sinking or
other analogous fund for, the purchase, redemption, retirement or other
acquisition of any shares of its capital or any warrants, options or rights to
acquire any such shares, or the making by such Person of any other distribution
in respect of any shares of its capital, (c) of any principal of or interest or
premium on or of any amount in respect of a sinking or analogous fund or
defeasance fund for any indebtedness or liability of such Person ranking in
right of payment subordinate to any liability of such Person under the Credit
Documents, or (d) of any management, consulting or similar fee or any bonus
payment or comparable payment, or by way of gift or other gratuity, to any Non
Arm's Length Person.
"RESTRICTED SUBSIDIARIES" shall mean all present and future Subsidiaries
of the Cdn. Borrower other than any such Subsidiary which is at the relevant
time an Independent Subsidiary, and "RESTRICTED SUBSIDIARY" shall mean any one
of the Restricted Subsidiaries.
"ROLLING STOCK" shall mean relative to the Restricted Parties all
automobiles, trucks and other motorized vehicles of, or used by or for the
benefit of, or used in the operation of the business of, any Restricted Party,
provided that the term "ROLLING STOCK" shall not include any machinery,
equipment or other property (a) which is installed on or affixed to any such
automobile, truck or other motorized vehicle, and (b) which (i) uses technology
or intellectual property rights which are owned or licensed (other than only as
part of a license arrangement with the owner of such vehicle) by any of the
Restricted Parties, or (ii) consists of all or part of one or more units which
enables such automobile, truck or other motorized vehicle to deliver or perform
the services of any Restricted Party in respect of which such vehicle is being
used.
"SECURED PARTIES" shall have the meaning specified in Section 9.03, and
"SECURED PARTY" shall mean any one of the Secured Parties.
"SECURED PARTY DOCUMENTS" shall have the meaning specified in Section
9.03, and "SECURED PARTY DOCUMENT" shall mean any one of the Secured Party
Documents.
"SECURITY" shall have the meaning specified in Section 6.01.
"SERV TECH" shall mean Serv-Tech, Inc. a corporation existing under the
laws of Texas.
"SERV TECH AGREEMENT AND PLAN OF MERGER" shall mean the Agreement and Plan
of Merger dated as of March 5, 1997 among the Cdn. Borrower, Taro Aggregates
Ltd., ST Acquisition Corporation and Serv Tech.
42
SECTION 1.01
- 34 -
"SERV TECH ACQUISITION" shall mean the Acquisition of Serv Tech by the
Cdn. Borrower by way of the merger of a wholly-owned Subsidiary of the Cdn.
Borrower with and into Serv Tech, with Serv Tech being the surviving
corporation from such merger, pursuant to the Serv Tech Agreement and Plan of
Merger.
"S&P" shall mean Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc. and its successors.
"SUBSIDIARY" shall mean, as to any Person, (i) any corporation, if
securities of such corporation having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation are at the time
owned by such Person and/or one or more Subsidiaries of such Person and (ii)
any partnership, association, joint venture or other entity in which such
Person and/or one or more Subsidiaries of such Person owns more than 50% of the
equity at the time.
"SURPLUS ADDITIONAL DEBT AND COMMITMENTS" shall mean at any time the
amount, if any, by which (x) the sum of, without duplication, all Additional
Debt outstanding at such time and all Additional Debt which any Restricted
Party is entitled to obtain at such time (or would be entitled to obtain at
such time subject to delivery of notices or requests and compliance with other
normal course conditions to borrowing) pursuant to any agreements or
commitments with any other Person, in the aggregate exceeds (y) U.S.
$250,000,000 (or the equivalent amount in any other currency or currencies).
"TAKE-OVER BID" shall mean either (a) an offer to acquire outstanding
voting or equity securities of a class of a corporation where the securities
that are the subject of such offer, together with the offeror's securities,
constitute at least 20% of the outstanding securities of that class of
securities on the date the offer is made, or (b) any other event which is a
take-over bid within the meaning attributed to such term by any law, treaty,
rule, regulation, or requirement of any stock exchange or securities
commission, or determination of any arbitrator, court, stock exchange,
securities commission or other Governmental Authority, in each case, applicable
to or binding on any Restricted Party.
"TAX SHARING AGREEMENT" shall mean an agreement in the form of Schedule 9
from an Independent Subsidiary respecting such Independent Subsidiary's
agreement to indemnify any Restricted Party from and reimburse any Restricted
Party for any United States income, corporate or other taxes payable by such
Independent Subsidiary which have been paid by, or in respect of which a claim
or demand by a Governmental Authority has been made against, such Restricted
Party or one of its Subsidiaries.
"TAXES" has the meaning specified in Section 5.03.
43
SECTION 1.01
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"TARGET" shall mean any company, division, business, undertaking or
operation acquired by way of an Acquisition.
"TRANCHE 1" shall have the meaning specified in subsection 2.01(a).
"TRANCHE 1 COMMITMENT" shall have the meaning specified in subsection
2.01(a).
"TRANCHE 2" shall have the meaning specified in subsection 2.01(b).
"TRANCHE 2 CDN. BORROWING COMMITMENT" shall have the meaning specified in
subsection 2.01(b).
"TRANCHE 2 COMBINED COMMITMENT" shall have the meaning specified in
subsection 2.01(b).
"TRANCHE 2 U.S. BORROWING COMMITMENT" shall have the meaning specified in
subsection 2.01(b).
"TRANCHE 3" shall have the meaning specified in subsection 2.01(c).
"TRANCHE 3 COMMITMENT" shall have the meaning specified in subsection
2.01(c).
"TRANCHES" shall mean, collectively, Tranche 1, Tranche 2, Tranche 3, the
Cdn. Operating Line, the U.S. Operating Lines and the LC Line, and "TRANCHE"
shall mean any one of the Tranches.
"TWO-STEP PERMITTED ACQUISITION" shall mean an Acquisition by a Borrower
or any Wholly-Owned Restricted Party otherwise permitted under this Agreement
and constituting the Acquisition of 100% of the capital stock of any Target not
already a Subsidiary of the Cdn. Borrower by way of (x) a tender offer for the
shares of such Target, and (y) a subsequent amalgamation or merger of the
Target with a Borrower or any Wholly-Owned Restricted Party (provided that in
the case of an amalgamation or merger with a Borrower, such Borrower is the
surviving corporation from such amalgamation or merger) or a subsequent
compulsory acquisition of all remaining outstanding shares of the Target,
provided that:
(a) the subsequent merger or compulsory share acquisition to be effected
as part of such Two-Step Permitted Acquisition shall be consummated
as soon as possible after the consummation of the tender offer
portion thereof but in any event within 135 days thereafter;
44
SECTION 1.01
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(b) upon the consummation of the tender offer portion of any Two-Step
Permitted Acquisition, the applicable Borrower or Wholly-Owned
Restricted Party shall have acquired sufficient shares of the
outstanding capital of the applicable Target to effect (without any
vote by any other shareholders of the Target) the subsequent
amalgamation or merger (as a result of which the Target shall be
amalgamated with or merged into the applicable Borrower or become a
Wholly-Owned Restricted Party) or compulsory share acquisition
within 135 days after the consummation of such tender offer; and
(c) prior to the consummation of the tender offer portion of any
Two-Step Permitted Acquisition, the applicable Borrower shall have
available to it sufficient committed financing to effect such
Two-Step Permitted Acquisition (and to make all payments owing in
connection with both steps thereof).
"UNDISBURSED COMMITMENT" shall mean, at any time with respect to any
Lender and any Tranche, the excess, if any, of the Commitment of such Lender at
such time under such Tranche over the U.S. Dollar Amount of Accommodation then
outstanding from such Lender under such Tranche.
"UNDISBURSED CREDIT" shall mean, at any time, the excess, if any, of the
limit of the Credit over the U.S. Dollar Amount of Accommodation then
outstanding under the Credit.
"UNDISBURSED TRANCHE" shall mean, at any time with respect to any Tranche,
the excess, if any, of the limit of such Tranche over the U.S. Dollar Amount of
Accommodation then outstanding under such Tranche, and "UNDISBURSED TRANCHE 1",
"UNDISBURSED TRANCHE 2", "UNDISBURSED TRANCHE 3", "UNDISBURSED CDN. OPERATING
LINE", "UNDISBURSED U.S. OPERATING LINE" and "UNDISBURSED LC LINE" shall have
analogous meanings.
"UNFUNDED CURRENT LIABILITY" of any Pension Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits
under the Pension Plan as of the close of its most recent plan year, determined
in accordance with actuarial assumptions at such time consistent with Statement
of Financial Accounting Standards No. 87, exceeds the market value of the
assets allocable thereto.
"U.S. BASE RATE" shall mean a fluctuating rate of interest per annum,
expressed on the basis of a year of 365 or 366 days, as applicable, which is
equal at all times to the greater of:
(i) (x) in the case of Accommodation under the Credit (other than under
the Cdn. Operating Line) or other amounts in respect of which
interest is to be calculated under this Agreement on the basis of
the U.S. Base Rate, the reference rate of interest (however
designated) of the Administrative Agent for determining interest
45
SECTION 1.03
- 37 -
chargeable by it on U.S. Dollar commercial loans made in Canada,
and (y) in the case of Accommodation under the Cdn. Operating
Line, the reference rate of interest (however designated) of the
Cdn. Operating Lender for determining interest chargeable by it on
U.S. Dollar commercial loans made in Canada; and
(ii) 0.75% above the USD-LIBOR-Reuters from time to time.
"U.S. BASE RATE LOAN" shall mean any Loan in U.S. Dollars with respect to
which interest is calculated under this Agreement for the time being on the
basis of the U.S. Base Rate.
"U.S. BORROWER" shall mean Philip Environmental (Delaware), Inc., a
corporation existing under the laws of Delaware, and its successors by
amalgamation, merger or otherwise.
"U.S. CROSS BORDER LENDERS" shall mean those Lenders listed in Column 5 of
Schedule 1 to this Agreement, together with each other Person which from time
to time becomes a party to this Agreement and a Lender in the United States of
America to the U.S. Borrower under Tranche 2 in accordance with Section 12.01,
in their capacity as Lenders in the United States of America to the U.S.
Borrower under Tranche 2, in each case together with their respective
successors and assigns, and "U.S. CROSS BORDER LENDER" shall mean any one of
the U.S. Cross Border Lenders.
"U.S. DOLLAR AMOUNT" shall mean, at any time, relative to the Credit, any
Tranche, any Commitment or any Person, the sum of (a) the aggregate amount of
all Accommodation outstanding at such time under the Credit, under such
Tranche, under such Commitment or from such Person, as the case may be, that is
denominated in U.S. Dollars, and (b) the aggregate of the Equivalent Amounts at
such time, expressed in U.S. Dollars, of all Accommodation outstanding at such
time under the Credit, under such Tranche, under such Commitment or from such
Person, as the case may be, that is not denominated in U.S. Dollars.
"U.S. DOLLARS", "U.S. $" and "$" shall mean lawful currency of the United
States of America.
"U.S. LC COMMITMENT" shall have the meaning specified in subsection
2.01(g).
"U.S. LC ISSUER" shall mean Canadian Imperial Bank of Commerce, New York
Agency in its capacity as issuer of Letters of Credit to the U.S. Borrower
under the LC Line together with its successors and assigns in such capacity.
"U.S. LC LENDERS" shall mean the U.S. LC Issuer and those other Lenders
listed in Column 3 of Schedule 27 to this Agreement, together with each other
Person which from time to time becomes a party to this Agreement and a Lender
in the United States of America to the U.S.
46
SECTION 1.01
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Borrower under the LC Line in accordance with Section 12.01, in their capacity
as Lenders in the United States of America to the U.S. Borrower under the LC
Line, in each case together with their respective successors and assigns, and
"U.S. LC LENDER" shall mean any one of the U.S. LC Lenders.
"U.S. LENDERS" shall have the meaning specified in subsection 5.03(3), and
"U.S. LENDER" shall mean any one of the U.S. Lenders.
"U.S. ONLY LENDERS" shall mean those Lenders listed in Column 8 of
Schedule 1 to this Agreement, together with each other Person which from time
to time becomes a party to this Agreement and a Lender in the United States of
America to the U.S. Borrower under Tranche 3 in accordance with Section 12.01,
in their capacity as Lenders in the United States of America to the U.S.
Borrower under Tranche 3, in each case together with their respective
successors and assigns, and "U.S. ONLY LENDER" shall mean any one of the U.S.
Only Lenders.
"U.S. OPERATING LENDERS" shall mean the U.S. Operating Line A Lender and
the U.S. Operating Line B Lender, and "U.S. OPERATING LENDER" shall mean either
one of the U.S. Operating Lenders.
"U.S. OPERATING LINE A" shall have the meaning specified in subsection
2.01(e).
"U.S. OPERATING LINE A LENDER" shall mean Comerica Bank in its capacity as
the operating credit lender to the U.S. Borrower in the United States of
America under U.S. Operating Line A together with its successors and assigns in
such capacity.
"U.S. OPERATING LINE B" shall have the meaning specified in subsection
2.01(f).
"U.S. OPERATING LINE B LENDER" shall mean Texas Commerce Bank National
Association in its capacity as the operating credit lender to the U.S. Borrower
in the United States of America under U.S. Operating Line B together with its
successors and assigns in such capacity.
"U.S. OPERATING LINES" shall mean U.S. Operating Line A and U.S. Operating
Line B, and "U.S. OPERATING LINE" shall mean either one of the U.S. Operating
Lines.
"U.S. REFERENCE RATE" shall mean a fluctuating rate of interest per annum,
expressed on the basis of a year of 360 days, which is equal at all times to
the higher of:
(i) (x) in the case of Accommodation under the Credit (other than under
the U.S. Operating Lines) or other amounts in respect of which
interest is to be calculated under this Agreement on the basis of
the U.S. Reference Rate, the reference rate
47
SECTION 1.01
- 39 -
of interest (however designated) quoted by the Administrative
Agent for determining interest chargeable by it or its Affiliates
on U.S. Dollar commercial loans made in the United States of
America, and (y) in the case of Accommodation under a U.S.
Operating Line, the reference rate of interest (however
designated) of the applicable U.S. Operating Lender for
determining interest chargeable by it on U.S. Dollar commercial
loans made in the United States of America; and
(ii) 0.5% above the Federal Funds Rate from time to time.
"U.S. REFERENCE RATE LOAN" shall mean any Loan in U.S. Dollars with
respect to which interest is calculated under this Agreement for the time being
on the basis of the U.S. Reference Rate.
"USD-LIBOR-REUTERS" on any day, shall mean the rate for deposits in U.S.
Dollars for a period of one month which appears on page Q LIBOR 01 as of 11:00
a.m. (London, England time) on such day (or if such rate does not appear on
such page of the Reuters Screen at such time on such day, then such rate which
appears on such page of the Reuters Screen as of 11:00 a.m. (London, England
time) on the immediately preceding Business Day) or, if such Reuters Screen
rate is not available on either such day, the rate for deposits of U.S. Dollars
for a period of one month which appears on the LIBO page of the Reuters Screen
as of 11:00 a.m. (London, England time) on such day (or if such rate does not
appear on the LIBO page at such time on such day, then such rate which appears
on the LIBO page of the Reuters Screen as of 11:00 a.m. (London, England time)
on the immediately preceding Business Day).
"WHOLLY-OWNED RESTRICTED PARTY" shall mean any Restricted Party of which
all of the issued and outstanding shares are owned beneficially and of record
by any one or more of the Cdn. Borrower and the Wholly-Owned Restricted
Parties.
"WORKING CAPITAL RATIO" shall mean, at any time, the ratio of (a) Current
Assets at such time to (b) Current Liabilities at such time.
1.012 HEADINGS, ETC.
The division of this Agreement into Articles, Sections, subsections,
paragraphs and clauses and the insertion of headings are for convenience of
reference only and will not affect the construction or interpretation of this
Agreement. The terms "this Agreement", "hereof", "hereunder" and similar
expressions refer to this Agreement and not to any particular Article, Section,
subsection, paragraph, clause or other portion of this Agreement. Unless
something in the subject matter or context is inconsistent with any such
reference, references in
48
SECTION 1.02
- 40 -
this Agreement to Articles, Sections, subsections, paragraphs, clauses and
Schedules are to Articles, Sections, subsections, paragraphs, clauses and
Schedules of this Agreement.
1.013 FINANCIAL TERMS
(1) All accounting terms not otherwise defined in this Agreement will have
the meanings assigned to such terms by GAAP. The Borrowers acknowledge and
agree that the various financial terms defined and used in this Agreement, and
the availability of Accommodation, and the interest rates, Bankers' Acceptance
fees, Letter of Credit fees and stand-by fees set forth in Article Three and
the various financial covenants under Section 8.03, have all been established
and agreed upon on the basis of the accounting policies, practices, principles
and calculation methods or components thereof adopted and applied by the Cdn.
Borrower in the preparation of the Cdn. Borrower's December 31, 1996 annual
consolidated audited financial statements (the "FINANCIAL STATEMENTS").
Accordingly, although the Cdn. Borrower shall be entitled to implement any
change or modification in accordance with GAAP to any such accounting policies,
practices, principles or calculation methods or components thereof, for the
purpose of this Agreement, all accounting terms defined or used in this
Agreement (including, without limitation, those specifically referred to above)
shall at all times be interpreted in accordance with, and all financial
statements delivered or supplied under this Agreement shall be accompanied by a
reconciliation so as to show the financial position, performance and results of
the Restricted Parties in accordance with, GAAP (on a Modified Consolidated
basis where required by this Agreement) using, and shall at all times be
applied in accordance with GAAP (on a Modified Consolidated basis where
required by this Agreement) in a manner consistent with, the policies,
practices, principles and calculation methods or components thereof adopted by
the Cdn. Borrower with respect to the Financial Statements, irrespective of any
change or modification thereto implemented by the Cdn. Borrower (provided
however that if the Cdn. Borrower changes such policies, practices, principles
or calculation methods, the Cdn. Borrower may for the purpose of the accounting
terms defined in this Agreement (a) implement any such change which is neither
material in nature nor could have a material impact on the interpretation or
calculation of the financial terms or covenants set forth in this Agreement,
provided that the Cdn. Borrower has given the Administrative Agent prior
written notice of the applicable change, and (b) implement any such change
which is material in nature or which could have a material impact on the
interpretation or calculation of the financial terms or covenants set forth in
this Agreement provided that the Cdn. Borrower has given the Administrative
Agent 30 days' prior written notice of such change and the Required Lenders
have given their prior written approval to the Cdn. Borrower implementing such
change).
(2) If there is a Disposition of, or a closure of, any business,
undertaking or operation of a Restricted Party (collectively a "SALE"),
Interest Expense prior to the date of such Sale ("SALE RELATED HISTORICAL
INTEREST EXPENSE") will be adjusted downwards, effective as of the date of such
Sale, so that any Sale Related Historical Interest Expense for any period used
in any
49
SECTION 1.03
- 41 -
calculations of financial terms or covenants under this Agreement after the
date of such Sale is reduced on a proportionate basis to reflect a reasonable
estimate of what such Sale Related Historical Interest Expense for such period
would have been if such Sale had been completed at the beginning of such
period. Any such adjustment to Sale Related Historical Interest Expense over
any period shall be calculated based on the formula set forth below. The
number of completed calendar months immediately preceding such Sale occurring
during the respective four Financial Quarter period will be determined and is
referred to as "N". Sale Related Historical Interest Expense will be adjusted
downward for such period by an amount equal to:
N/12 x (NSP x ACOB)
where:
NSP = the net cash sales proceeds received from such Sale or,
in the case of a Sale which is a closure, the book value at
the date of such Sale of the business or undertaking closed
ACOB = the average rate for the applicable period for Debt of the
Cdn. Borrower under this Agreement.
(3) If there is an Acquisition by a Restricted Party, Interest Expense
prior to the date of such Acquisition ("ACQUISITION RELATED HISTORICAL INTEREST
EXPENSE") will be adjusted upwards, effective as of the date of such
Acquisition, so that any Acquisition Related Historical Interest Expense for
any period used in any calculation of financial terms or covenants under this
Agreement after the date of such Acquisition is increased to reflect the
incremental Debt issued, incurred or assumed by the Restricted Parties to
effect such Acquisition calculated at a rate per annum equal to the rate of
interest applicable to such Debt at the date of such Acquisition (in the case
of Debt which was issued or incurred in connection with such Acquisition and at
the average rate of interest on such Debt for such period in the case of Debt
assumed in connection with such Acquisition) as if such incremental Debt had
been issued, incurred or assumed at the beginning of such period.
(4) If there is a Sale, EBITDA prior to the date of such Sale ("SALE
RELATED HISTORICAL EBITDA") will be adjusted downwards, effective as of the
date of such Sale, so that any Sale Related Historical EBITDA for any period
used in any calculations of financial terms or covenants under this Agreement
after the date of such Sale is reduced on a proportionate basis to reflect a
reasonable estimate of what Sale Related Historical EBITDA for such period
would have been if such Sale had been completed at the beginning of such
period. For greater certainty, any adjustment to EBITDA under this subsection
in connection with any Sale will be made without duplication of any adjustment
made to Interest Expense under subsection 1.03(2) in connection with such Sale.
50
SECTION 1.03
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(5) If there is an Acquisition by a Restricted Party of a new division,
business, undertaking or operation, EBITDA prior to the date of such
Acquisition ("ACQUISITION RELATED HISTORICAL EBITDA") will be adjusted upward,
effective as of the date of such Acquisition, so that any Acquisition Related
Historical EBITDA for any period used in any calculations of financial terms or
covenants under this Agreement after the date of such Acquisition is increased
to reflect a reasonable estimate of what Acquisition Related Historical EBITDA
for such period would have been had such Acquisition been completed at the
beginning of such period (and for greater certainty such upward adjustment will
not include any expected synergies). For greater certainty, any adjustment to
EBITDA under this subsection in connection with any Acquisition will be made
without duplication of any adjustment made to Interest Expense under subsection
1.03(3) in connection with such Acquisition.
1.014 NUMBER, GENDER AND EXPRESSIONS
Words importing the singular number only will include the plural and vice
versa, words importing gender will include all genders and words importing any
type or category of Persons will include all types and categories of Persons.
Where any term or expression is defined in this Agreement, derivations of such
term or expression will have a corresponding meaning.
1.015 TIME
Unless otherwise expressly stated, any reference in this Agreement to a
time will mean Toronto, Ontario local time. Time shall be of the essence of
this Agreement and each of its provisions.
1.016 NON-BUSINESS DAYS
Unless otherwise expressly provided in this Agreement, whenever any
payment is stated to be due on a day other than a Business Day, the payment
will be made on the immediately following Business Day. Notwithstanding the
foregoing, if with respect to any payment of principal or interest on a LIBOR
Loan the succeeding Business Day falls in the next calendar month, the due date
for payment of such principal or interest shall be the next preceding Business
Day. In the case of interest or fees payable pursuant to the terms of this
Agreement, the extension or contraction of time will be considered in
determining the amount of interest and fees. Unless otherwise expressly
provided in this Agreement, whenever any action to be taken is stated or
scheduled to be required to be taken on, or (except with respect to the
calculation of interest or fees) any period of time is stated or scheduled to
commence or terminate on, a day other than a Business Day, the action will be
taken or the period of time will commence or terminate, as the case may be, on
the immediately following Business Day.
1.017 CONFLICTS
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SECTION 1.07
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In the event of a conflict, discrepancy, difference or ambiguity in or
between the provisions of this Agreement and the provisions of any of the other
Credit Documents, then, unless such Credit Document or an acknowledgment from
the Cdn. Borrower relative to such Credit Document expressly states that this
Section is not applicable thereto, notwithstanding anything else contained in
such other Credit Document, the provisions of this Agreement will prevail and
the provisions of such other Credit Document will be deemed to be amended to
the extent necessary to eliminate such conflict, discrepancy, difference or
ambiguity.
1.018 STATUTORY REFERENCES
Any reference in this Agreement to any act or statute, or to any section of
or any definition in any act or statute, will be deemed to be a reference to
such act or statute or section or definition as amended, supplemented,
substituted or re-enacted from time to time.
1.019 ACTIONS BY RESTRICTED PARTIES
If any provision in the Credit Documents refers to any action taken or to
be taken by any Restricted Party or any Independent Subsidiary, or which a
Restricted Party or an Independent Subsidiary is prohibited from taking, such
provision will be interpreted to include any and all means, direct or indirect,
of taking, or not taking, such action, provided however, for greater certainty,
the provisions of this Section are not intended to impose any obligation on a
Restricted Party or an Independent Subsidiary to effect any action by any means
prohibited by then existing Applicable Laws.
1.101 SEVERABILITY
If any term, covenant, obligation or agreement contained in this Agreement,
or the application of any such term, covenant, obligation or agreement to any
Person or circumstance, shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement or the application of such term, covenant,
obligation or agreement to Persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected by such invalidity or
unenforceability and each term, covenant, obligation or agreement contained in
this Agreement shall be separately valid and enforceable to the fullest extent
permitted by law.
1.11 ENTIRE AGREEMENT
This Agreement and all other Credit Documents constitute the entire
agreement between the parties to this Agreement with respect to the Credit and
the other matters contemplated in this Agreement as of the date of this
Agreement, and (except for any fee letter or fee letters between the
Co-Arrangers and the Cdn. Borrower or the Administrative Agent and the Cdn.
Borrower)
52
SECTION 1.11
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supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, with respect to the Credit including, without
limitation, those contained in the May 28, 1997 arrangement letter from the
Co-Arrangers to the Cdn. Borrower.
1.12 PERMITTED LIENS
The inclusion of reference to Permitted Liens in any Credit Document is
not intended to and shall not subordinate and shall not be interpreted as
subordinating any Lien created by any of the Security to any Permitted Lien.
1.13 INTEREST PAYMENTS AND CALCULATIONS
(1) All interest payments to be made under this Agreement will be paid
without allowance or deduction for deemed re-investment or otherwise, both
before and after maturity and before and after default and/or judgment, if any,
until payment of the amount on which such interest is accruing, and interest
will accrue on overdue interest, if any.
(2) Unless otherwise stated, wherever in this Agreement reference is made
to a rate of interest or rate of fees "per annum" or a similar expression is
used, such interest or fees will be calculated on the basis of a calendar year
of 365 days or 366 days, as the case may be, and using the nominal rate method
of calculation, and will not be calculated using the effective rate method of
calculation or on any other basis that gives effect to the principle of deemed
re-investment of interest.
(3) For the purposes of the Interest Act (Canada) and disclosure under
such act, whenever interest to be paid under this Agreement is to be calculated
on the basis of a year of 365 days or 360 days or any other period of time that
is less than a calendar year, the yearly rate of interest to which the rate
determined pursuant to such calculation is equivalent is the rate so determined
multiplied by the actual number of days in the calendar year in which the same
is to be ascertained and divided by either 365, 360 or such other period of
time, as the case may be.
1.14 GOVERNING LAW
THIS AGREEMENT AND, UNLESS OTHERWISE SPECIFIED IN SUCH CERTIFICATE OR
OTHER DOCUMENT, ALL CERTIFICATES AND OTHER DOCUMENTS DELIVERED TO THE
ADMINISTRATIVE AGENT AND THE LENDERS UNDER THIS AGREEMENT SHALL BE CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO AND THE
LAWS OF CANADA APPLICABLE IN THE PROVINCE OF ONTARIO. EACH OF THE BORROWERS
VOLUNTARILY AND IRREVOCABLY SUBMITS ITSELF TO THE
53
SECTION 1.14
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JURISDICTION OF ANY COMPETENT FEDERAL OR PROVINCIAL COURT OR TRIBUNAL IN THE
PROVINCE OF ONTARIO TO ENABLE THE ADMINISTRATIVE AGENT OR THE LENDERS OR ANY OF
THEM TO COMMENCE AND CARRY TO A CONCLUSION ANY SUIT, ACTION OR PROCEEDING FOR
THE COLLECTION OF ANY AND ALL AMOUNTS PAYABLE BY SUCH BORROWER UNDER THE CREDIT
DOCUMENTS AND/OR THE ENFORCEMENT OF ANY OTHER RIGHT OR SECURITY GIVEN TO THE
ADMINISTRATIVE AGENT OR THE LENDERS OR ANY OF THEM BY SUCH BORROWER IN
CONNECTION WITH ANY AMOUNT PAYABLE UNDER ANY CREDIT DOCUMENT. Each of the
Borrowers further agrees that any final judgment or decree against such
Borrower and/or its property in any such suit, action or proceeding shall be
conclusive on such Borrower and such property and all parties in interest, and
may be enforced in any court or tribunal in any other country, province or
state by suit on the judgment or decree, a certified copy of which shall be
conclusive evidence of judgement or decree, as the case may be. Nothing in
this Section shall be deemed or operate to preclude the Administrative Agent or
any Lender from bringing suit or taking other legal action in any other
jurisdiction to collect the obligations of any Restricted Party or to realize
on the Security, or to enforce a judgment or other court order in favour of the
Administrative Agent or any Lender. Each of the Borrowers expressly submits
and consents in advance to such jurisdiction in any action or suit commenced in
any such court, and hereby waives any objection which such Person may have
based upon lack of personal jurisdiction, improper venue or forum non
conveniens and hereby consents to the granting of such legal or equitable
relief as is deemed appropriate by such court. Each of the Borrowers hereby
waives personal service of the summons, complaint and other process issued in
any such action or suit and agrees that service of such summons, complaints and
other process may be made by registered or certified mail addressed to such
Person at the address of the Cdn. Borrower set forth on the signature page of
this Agreement.
1.15 WAIVER OF JURY TRIAL
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS
ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON
AND THE PARTIES WISH APPLICABLE PROVINCIAL AND FEDERAL LAWS TO APPLY (RATHER
THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A
JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION
OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO
WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN
THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THE CREDIT DOCUMENTS OR
THE TRANSACTIONS UNDER THE CREDIT DOCUMENTS.
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SECTION 1.16
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1.16 CURRENCY
Unless otherwise specified in this Agreement, all statements of or
references to dollar amounts (without further description) mean U.S. Dollars.
1.17 SENIOR INDEBTEDNESS
All of the debts, obligations and liabilities of the Cdn. Borrower under
or in respect of this Agreement and all of the other Credit Documents and all
Lender/Borrower Hedging Arrangements constitutes "Senior Indebtedness" (as
defined in the January 1, 1989 indenture (the "ALLWASTE TRUST INDENTURE"), as
supplemented, delivered by Allwaste to Texas Commerce Trust Company of New York
as trustee) and shall rank in right of payment in priority to all debts,
obligations and liabilities of the Cdn. Borrower under or in respect of the
Allwaste Trust Indenture or any debentures issued thereunder.
1.18 SCHEDULES
The Schedules attached to, and forming part of, this Agreement are as
follows:
Schedule 1 - Commitments of the Lenders under Tranches 1, 2 and 3
Schedule 2 - Form of Corporate Separateness Covenant and Assurance
Agreement
Schedule 3 - Form of Acknowledgement and Agreement from Eligible
Affiliates of the Administrative Agent, an Other Agent or
a Lender
Schedule 4 - List of Independent Subsidiaries
Schedule 5 - Form of Non Recourse Acknowledgement and Undertaking
Schedule 6 - List of Permitted Liens
Schedule 7 - Description of Permitted Indebtedness
Schedule 8 - Description of Pre-existing Accommodation
Schedule 9 - Form of Tax Sharing Agreement
Schedule 10 - Form of Notice of Borrowing
Schedule 11 - Form of Note of Conversion/Renewal
Schedule 12 - Minimum Amounts of Borrowings under Tranches
Schedule 13 - Notice Periods for Borrowing of Types of Accommodation under
Tranches
Schedule 14 - Form of BA Equivalent Note
Schedule 15 - Form of Non Bank Certificate for U.S. Withholding Tax
Purposes
Schedule 16 - Listing of Particulars of Shares and Other Securities to
be Pledged under the Security
Schedule 17 - Litigation
Schedule 18 - Corporate Chart
55
SECTION 1.17
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Schedule 19 - Disclosure Schedule
Schedule 20 - List of Material Contracts
Schedule 21 - Form of Quarterly Reporting Compliance Certificate
Schedule 22 - Form of Quarterly Environmental Compliance Certificate
Schedule 23 - Insurance Requirements
Schedule 24 - Form of Undertaking relative to Assignments by Lenders
Schedule 25 - Form of Assignment and Assumption Agreement relative to
Assignments by Lenders
Schedule 26 - List of Non Material Restricted Subsidiaries
Schedule 27 - Commitments of the Lenders under the LC Line
ARTICLE TWO
THE CREDIT
1.021 ESTABLISHMENT OF THE CREDIT
Subject to and upon the terms and conditions set forth in this Agreement,
the Lenders (severally and not jointly or jointly and severally) establish in
favour of the Borrowers a revolving credit facility (the "CREDIT"), subdivided
into seven Tranches, pursuant to which one or more of the Borrowers shall be
entitled from time to time prior to the Maturity Date to obtain from one or
more of the Lenders Accommodation of various types in an aggregate U.S. Dollar
Amount which does not at any time exceed U.S. $1,500,000,000 (as such limit may
from time to time be reduced pursuant to the provisions of this Agreement) all
as more particularly described below:
TRANCHE 1
(a) a tranche ("TRANCHE 1") under which each Cdn. Only Lender severally
(and not jointly or jointly and severally) agrees to make available
to the Cdn. Borrower in Canada Accommodation by way of Prime Rate
Loans, U.S. Base Rate Loans, LIBOR Loans and Bankers' Acceptances
(or BA Equivalent Notes), in an aggregate U.S. Dollar Amount not
exceeding at any time the U.S. Dollar Amount set forth for such
Lender in the Registry of Commitments (which amount on the date of
this Agreement is set forth opposite such Lender's name in Column 2
of Schedule 1) (as such amount may from time to time be adjusted as
provided for pursuant to the provisions of this Agreement and as
the Registry of Commitments may from time to time be amended as
provided for in Section 12.01 or in any other applicable provision
of this Agreement) (for each such Lender, its "TRANCHE 1 COMMITMENT"
and for all such Lenders the "TRANCHE 1 COMMITMENTS"); and
56
SECTION 2.01
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TRANCHE 2
(b) a tranche ("TRANCHE 2") under which each Cdn. Cross Border Lender
and its Affiliated U.S. Cross Border Lender severally (and not
jointly or jointly and severally):
(i) in the case of the Cdn. Cross Border Lenders, agrees to make
available to the Cdn. Borrower in Canada Accommodation by
way of Prime Rate Loans, U.S. Base Rate Loans, LIBOR Loans
and Bankers' Acceptances (or BA Equivalent Notes) in an
aggregate U.S. Dollar Amount not exceeding at any time the
U.S. Dollar Amount set forth for such Lender in the Registry
of Commitments (which amount on the date of this Agreement
is set forth opposite such Lender's name in Column 4 of
Schedule 1) (as such amount may from time to time be
adjusted pursuant to Section 2.03 or as otherwise provided
for pursuant to the provisions of this Agreement and as the
Registry of Commitments may from time to time be amended as
provided for in Section 12.01 or in any other applicable
provision of this Agreement) (for each such Cdn. Cross
Border Lender its "TRANCHE 2 CDN. BORROWING COMMITMENT" and
for all such Cdn. Cross Border Lenders the "TRANCHE 2 CDN.
BORROWING COMMITMENTS"); and
(ii) in the case of the U.S. Cross Border Lenders, agrees to make
available to the U.S. Borrower in the United States of
America Accommodation by way of U.S. Reference Rate Loans
and LIBOR Loans, in an aggregate U.S. Dollar Amount not
exceeding at any time the U.S. Dollar Amount set forth for
such Lender in the Registry of Commitments (which amount on
the date of this Agreement is set forth opposite such
Lender's name in Column 6 of Schedule 1) (as such amount may
from time to time be adjusted pursuant to Section 2.03 or as
otherwise provided for pursuant to the provisions of this
Agreement and as the Registry of Commitments may from time
to time be amended as provided for in Section 12.01 or in
any other applicable provision of this Agreement) (for each
such U.S. Cross Border Lender its "TRANCHE 2 U.S. BORROWING
COMMITMENT" and for all such U.S. Cross Border Lenders the
"TRANCHE 2 U.S. BORROWING COMMITMENTS");
and provided further that the aggregate U.S. Dollar Amount of all such
Accommodation made available by each Cdn. Cross Border Lender and its
Affiliated U.S. Cross Border Lender at any time will not exceed the
U.S. Dollar Amount set forth for such Lenders in the Registry of
Commitments (which
57
SECTION 2.01
- 49 -
amount on the date of this Agreement is set forth opposite such
Lenders' names in Column 7 of Schedule 1) (as such amount may from
time to time be adjusted pursuant to Section 2.03 or as otherwise
provided for pursuant to the provisions of this Agreement and as
the Registry of Commitments may from time to time be amended as
provided for in Section 12.01 or in any other applicable provision
of this Agreement) (for each such Cdn. Cross Border Lender and its
Affiliated U.S. Cross Border Lender, their "TRANCHE 2 COMBINED
COMMITMENT" and for all such Lenders the "TRANCHE 2 COMBINED
COMMITMENTS");
TRANCHE 3
(c) a tranche ("TRANCHE 3") under which each U.S. Only Lender severally
(and not jointly or jointly and severally) agrees to make available
to the U.S. Borrower in the United States of America Accommodation
by way of U.S. Reference Rate Loans and LIBOR Loans in an aggregate
U.S. Dollar Amount not exceeding at any time the U.S. Dollar Amount
set forth for such Lender in the Registry of Commitments (which
amount on the date of this Agreement is set forth opposite such
Lender's name in Column 9 of Schedule 1) (as such amount may from
time to time be adjusted as provided for pursuant to the provisions
of this Agreement and as the Registry of Commitments may from time
to time be amended as provided for in Section 12.01 or in any other
applicable provision of this Agreement) (for each such Lender, its
"TRANCHE 3 COMMITMENT" and for all such Lenders the "TRANCHE 3
COMMITMENTS");
CDN. OPERATING LINE
(d) a tranche (the "CDN. OPERATING LINE") under which the Cdn.
Operating Lender agrees to make available to the Cdn. Borrower in
Canada Accommodation by way of Prime Rate Loans, U.S. Base Rate
Loans, LIBOR Loans and Bankers' Acceptances (or BA Equivalent
Notes), and only in connection with Pre-existing LCs as provided for
in Section 2.11 Letters of Credit, in an aggregate U.S. Dollar
Amount not exceeding at any time U.S. $30,000,000 (as such limit may
from time to time be adjusted pursuant to Section 2.03 or as
otherwise provided for pursuant to the provisions of this
Agreement);
U.S. OPERATING LINE A
(e) a tranche ("U.S. OPERATING LINE A") under which the U.S. Operating
Line A Lender agrees to make available to the U.S. Borrower in the
United States of America Accommodation by way of U.S. Reference Rate
Loans and LIBOR Loans in an aggregate U.S. Dollar Amount not
exceeding at any time
58
SECTION 2.01
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U.S. $25,000,000 (as such limit may from time to time be adjusted
pursuant to Section 2.03 or as otherwise provided for pursuant to
the provisions of this Agreement);
U.S. OPERATING LINE B
(f) a tranche ("U.S. OPERATING LINE B") under which the U.S. Operating
Line B Lender agrees to make available to the U.S. Borrower in the
United States of America Accommodation by way of U.S. Reference Rate
Loans and LIBOR Loans in an aggregate U.S. Dollar Amount not
exceeding at any time U.S. $20,000,000 (as such limit may from time
to time be adjusted pursuant to Section 2.03 or as otherwise
provided for pursuant to the provisions of this Agreement); and
LC LINE
(g) a tranche (the "LC LINE") under which each Cdn. LC Lender and its
Affiliated U.S. LC Lender severally (and not jointly or jointly and
severally):
(i) in the case of the Cdn. LC Lenders, agrees that the Cdn. LC
Issuer will make available on behalf of the Cdn. LC Lenders
to the Cdn. Borrower Accommodation by way of Letters of
Credit in an aggregate U.S. Dollar Amount not exceeding at
any time the aggregate of the U.S. Dollar Amounts set forth
for each Cdn. LC Lender in the Registry of Commitments
(which amount for each such Lender on the date of this
Agreement is set forth opposite such Lender's name in Column
2 of Schedule 27) (as such amount may from time to time be
adjusted pursuant to Section 2.03 or as otherwise provided
for pursuant to the provisions of this Agreement and as the
Registry of Commitments may from time to time be amended as
provided for in Section 12.01 or in any other applicable
provision of this Agreement) (for each such Cdn. LC Lender
its "CDN. LC COMMITMENT" and for all such Cdn. LC Lenders
the "CDN. LC COMMITMENTS"); and
(ii) in the case of the U.S. LC Lenders, agrees that the U.S. LC
Issuer will make available on behalf of the U.S. LC Lenders
to the U.S. Borrower Accommodation by way of standby Letters
of Credit in an aggregate U.S. Dollar Amount not exceeding
at any time the aggregate of the U.S. Dollar Amounts set
forth for each U.S. LC Lender in the Registry of Commitments
(which amount for each such Lender on the date of this
Agreement is set forth opposite such Lender's name in Column
4 of
59
SECTION 2.01
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Schedule 27) (as such amount may from time to time be adjusted
pursuant to Section 2.03 or as otherwise provided for pursuant
to the provisions of this Agreement and as the Registry of
Commitments may from time to time be amended as provided for
in Section 12.01 or in any other applicable provision of this
Agreement) (for each such U.S. LC Lender its "U.S. LC
COMMITMENT" and for all such U.S. LC Lenders the "U.S. LC
COMMITMENTS");
and provided further that the aggregate U.S. Dollar Amount of all
such Accommodation made available by both LC Issuers on behalf of
the LC Lenders at any time will not exceed U.S. $75,000,000 (as
such limit may from time to time be adjusted pursuant to Section
2.03 or as otherwise provided for pursuant to the provisions of
this Agreement).
1.022 PURPOSE OF THE CREDIT
The Borrowers shall use Accommodation obtained by them under the Credit to
refinance all Existing Bank Debt, to finance working capital requirements, the
cost of Acquisitions and Capital Expenditures permitted by this Agreement and
for general corporate purposes. The Credit may not be used to finance a
Hostile Take-Over Bid without the consent of all of the Lenders.
1.023 BORROWINGS UNDER TRANCHES
(1) The Cdn. Borrower, not more than 30 days and not less than 5 Business
Days prior to the last day of each Financial Quarter, shall give written notice
to the Administrative Agent either (x) requesting an adjustment, effective as
of the first day of the immediately following Financial Quarter (the "QUARTERLY
COMMITMENT ADJUSTMENT DATE") to either or both of (A) Tranche 2 by way of an
increase or decrease in the Tranche 2 Cdn. Borrowing Commitments (with any such
increase or decrease resulting in a pro rata increase or decrease to the
Tranche 2 Cdn. Borrowing Commitment of each Cdn. Cross Border Lender) with a
corresponding decrease or increase, as the case may be, in the Tranche 2 U.S.
Borrowing Commitments (with any such decrease or increase resulting in a pro
rata decrease or increase to the Tranche 2 U.S. Borrowing Commitment of each
U.S. Cross Border Lender) (collectively a "TRANCHE 2 COMMITMENT ADJUSTMENT"),
and (B) the LC Line by way of an increase or decrease in the Cdn. LC
Commitments (with any such increase or decrease resulting in a pro rata
increase or decrease to the Cdn. LC Commitment of each Cdn. LC Lender) with a
corresponding decrease or increase, as the case may be, in the U.S. LC
Commitments (with any such decrease or increase resulting in a pro rata
decrease or increase to the U.S. LC Commitment of each U.S. LC Lender)
(collectively a "LC COMMITMENT ADJUSTMENT"), or (y) confirming that there will
be no Tranche 2 Commitment Adjustment or LC Commitment Adjustment as at the
applicable
60
SECTION 2.03
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Quarterly Commitment Adjustment Date, provided that failure by the Cdn.
Borrower to deliver any such written notice to the Administrative Agent within
the period required above will be deemed to be delivery by the Cdn. Borrower to
the Administrative Agent of a written notice that there will be no Tranche 2
Commitment Adjustment or LC Commitment Adjustment as at the applicable
Quarterly Commitment Adjustment Date. Any such Tranche 2 Commitment Adjustment
and LC Commitment Adjustment will become effective on the applicable Quarterly
Commitment Adjustment Date provided that:
(a) the sum of the Tranche 2 Cdn. Borrowing Commitments and the Tranche
2 U.S. Borrowing Commitments after any such Tranche 2 Commitment
Adjustment must always equal the Tranche 2 Combined Commitments
immediately prior to such Tranche 2 Commitment Adjustment,
(b) the sum of the Cdn. LC Commitments and the U.S. LC Commitments after
any such LC Commitment Adjustment must always equal the Combined LC
Commitments immediately prior to such LC Commitment Adjustment,
(c) any such increase or decrease under Tranche 2 must be in a minimum
amount of U.S. $10,000,000 or any larger amount which is a whole
multiple of U.S. $5,000,000,
(d) any such increase or decrease under the LC Line must be in a minimum
amount of U.S. $2,000,000 or any larger amount which is a whole
multiple of U.S. $100,000,
(e) the Borrowers must prior to the applicable Quarterly Commitment
Adjustment Date repay sufficient outstanding Accommodation under
Tranche 2 in accordance with the terms of this Agreement so that,
immediately after such Tranche 2 Commitment Adjustment on such
Quarterly Commitment Adjustment Date, the aggregate U.S. Dollar
Amount of all Accommodation outstanding under Tranche 2 from the
Cdn. Cross Border Lenders does not exceed the adjusted Tranche 2
Cdn. Borrowing Commitments (and the aggregate U.S. Dollar Amount of
all Accommodation outstanding under Tranche 2 from each Cdn. Cross
Border Lender does not exceed its adjusted Tranche 2 Cdn. Borrowing
Commitment) and the aggregate U.S. Dollar Amount of all
Accommodation outstanding under Tranche 2 from the U.S. Cross Border
Lenders does not exceed the adjusted Tranche 2 U.S. Borrowing
Commitments (and the aggregate U.S. Dollar Amount of all
Accommodation outstanding under Tranche 2 from each U.S. Cross
Border Lender does not exceed its adjusted Tranche 2 U.S. Borrowing
Commitment).
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SECTION 2.03
- 53 -
(f) the Borrowers must prior to the applicable Quarterly Commitment
Adjustment Date repay sufficient outstanding Accommodation under the
LC Line in accordance with the terms of this Agreement so that,
immediately after such LC Commitment Adjustment on such Quarterly
Commitment Adjustment Date, the aggregate U.S. Dollar Amount of all
Accommodation outstanding under the LC Line from the Cdn. LC Lenders
does not exceed the adjusted Cdn. LC Commitments and the aggregate
U.S. Dollar Amount of all Accommodation outstanding under the LC
Line from the U.S. LC Lenders does not exceed the adjusted U.S. LC
Commitments.
For greater certainty, no Tranche 2 Commitment Adjustment will result in an
increase or decrease to the overall Tranche 2 Combined Commitments of all of
the Cross Border Lenders or to the Tranche 2 Combined Commitment of any
particular Cdn. Cross Border Lender and its Affiliated U.S. Cross Border
Lender. Rather, any such Tranche 2 Commitment Adjustment will only result in
an increase or decrease, as the case may be, in the Tranche 2 Cdn. Borrowing
Commitment of each Cdn. Cross Border Lender with a corresponding decrease or
increase, as the case may be, in the Tranche 2 U.S. Borrowing Commitment of its
respective Affiliated U.S. Cross Border Lender. In addition, no LC Commitment
Adjustment will result in an increase or decrease to the overall LC Combined
Commitments of all of the LC Lenders or to the LC Combined Commitment of any
particular Cdn. LC Lender and its Affiliated U.S. LC Lender. Rather any such
LC Commitment Adjustment will only result in an increase or decrease, as the
case may be, in the Cdn. LC Commitment of each Cdn. LC Lender with a
corresponding decrease or increase, as the case may be, in the U.S. LC
Commitment of its respective Affiliated U.S. LC Lender.
(2) The Cdn. Operating Lender, the U.S. Operating Lenders or the LC
Lenders may from time to time, with notice to and the consent of the
Administrative Agent and the Cdn. Borrower, and will from time to time at the
request of the Cdn. Borrower and the Administrative Agent, adjust their
Commitments under the Credit (such adjustment to be effective on the date
agreed to by the Administrative Agent and the Cdn. Borrower) by:
(a) increasing or reducing their respective Commitments under the Cdn.
Operating Line (in the case of the Cdn. Operating Lender), the
applicable U.S. Operating Line (in the case of a U.S. Operating
Lender) and the LC Line (in the case of the LC Lenders) and
(b) making a corresponding decrease or increase, as the case may be, in
(x) such Lender's Tranche 1 Commitment (if such Lender is also a
Cdn. Only Lender), (y) the Tranche 2 Combined Commitment of such
Lender and its Affiliated Cross Border Lender (if such Lender is
also a Cross Border Lender), or (z) such Lender's Tranche 3
Commitment (if such Lender is also a U.S. Only Lender) provided
that:
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SECTION 2.03
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(i) the sum of the aggregate Commitments of such Lenders (and
where applicable their Affiliated Cross Border Lenders)
under the Credit shall not increase or decrease as a result
of any such adjustment, and
(ii) any such increase or decrease must be in a minimum amount of
U.S. $500,000 or any larger amount which is a whole multiple
of U.S. $100,000, and
(iii) the Borrowers must prior to the applicable adjustment date
repay sufficient outstanding Accommodation under the affected
Tranches in accordance with the terms of this Agreement so
that, immediately after giving effect to such adjustment on
such date, the aggregate U.S. Dollar Amount of all
Accommodation outstanding under each of the affected Tranches
does not exceed the adjusted Commitments of the applicable
Lender (or the Applicable Lender and its Affiliated Cross
Border Lender, as the case may be, or the Applicable Lender
and its Affiliated LC Lender, as the case may be) under the
affected Tranches.
(3) Except as otherwise specifically stated in this Agreement:
(a) each Borrowing by the Cdn. Borrower under Tranche 1 and Tranche 2
(x) will be made available to the Cdn. Borrower by the Cdn. Only
Lenders and the Cdn. Cross Border Lenders simultaneously and pro
rata based on their respective Undisbursed Commitments under Tranche
1 and Tranche 2 respectively, and (y) will be comprised of the same
type of Accommodation, with identical maturity dates and LIBOR
Periods, if applicable, from each such Lender; and
(b) each Borrowing by the U.S. Borrower under Tranche 2 and Tranche 3
(x) will be made available to the U.S. Borrower by the U.S. Only
Lenders and the U.S. Cross Border Lenders simultaneously and pro
rata based on their respective Undisbursed Commitments under Tranche
2 and Tranche 3 respectively, and (y) will be comprised of the same
type of Accommodation, with identical maturity dates and LIBOR
Periods, if applicable, from each such Lender.
(4) No Lender will be responsible for any default by any other Lender in
its obligation to make Accommodation available to a Borrower nor will the
Commitment of any Lender be increased as a result of any such default, except
as provided in this subsection. If any Lender fails to make available any
Accommodation under Tranche 1, Tranche 2 or Tranche 3 when required under its
Commitment relative to such Tranche, the Administrative Agent will promptly
notify the other Lenders of such failure, and any Lender which has a Commitment
to such Borrower under any of such Tranches, upon notice to the applicable
Borrower, the
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Administrative Agent and the other Lenders, may make available to such Borrower
within two Business Days after the applicable Borrowing Date the amount (or if
more than one Lender so elects, its pro rata share of the amount as nearly as
practicable in the opinion of the Administrative Agent) of the failed
Accommodation. The maturity date of the LIBOR Period applicable to all LIBOR
Loans and the maturity date of all Bankers' Acceptances and BA Equivalent Notes
included in the additional Accommodation so made available shall be identical
to the respective maturity dates of the LIBOR Period for any LIBOR Loans, and
of any Bankers' Acceptances and BA Equivalent Notes, that would have been
included in the failed Accommodation and that were included in the
Accommodation made available by the non-defaulting Lenders on the applicable
Borrowing Date. The Lenders, the Borrowers and the Administrative Agent shall
thereupon enter into documentation, in form and substance satisfactory to the
Administrative Agent, as may be appropriate to evidence the adjustment of the
Commitments relative to the Tranches necessitated by the additional
Accommodation made by any Lender and thereafter the Administrative Agent in its
discretion may adjust the manner in which any Lender or group or groups of
Lenders share in any new Borrowings to ensure that the applicable Lenders or
group of Lenders hold outstanding Accommodation as soon as possible thereafter
on a pro rata basis as contemplated under the other provisions of this
Agreement. Nothing in this subsection shall be deemed to relieve any Lender of
its obligation to make available any Accommodation when required to do so under
this Agreement, or to prejudice any rights which any Borrower, the
Administrative Agent or any other Lender may have against a defaulting Lender.
1.024 NOTICE OF BORROWING
(1) Whenever a Borrower desires to obtain a Borrowing (other than a
Borrowing under one of the Operating Lines which will be made available by the
applicable Operating Lender pursuant to arrangements from time to time entered
into between the Cdn. Borrower and the Cdn. Operating Lender and between the
U.S. Borrower and each of the U.S. Operating Lenders), it shall give
irrevocable prior written notice to the Administrative Agent in substantially
the form of Schedule 10 (a "NOTICE OF BORROWING") specifying the identity of
the Borrower; the Tranche or Tranches under which the Borrowing is to be
obtained; the types and amounts of Accommodation desired; the term of any
Bankers' Acceptances or BA Equivalent Notes to be included in such
Accommodation; the LIBOR Period to be applicable to any LIBOR Loans to be
included in such Accommodation; and the date (which shall be a Business Day) on
which such Borrowing is to be obtained (a "BORROWING DATE" which date shall
include the date on which any Accommodation is obtained under subsection
2.05(7), subsection 2.06(3) or Section 2.07 and the date on which the basis on
which interest is calculated on a Loan in U.S. Dollars is converted or renewed
pursuant to a Notice of Conversion/Renewal). Whenever a Borrower desires to
convert the basis on which interest is calculated on a Loan in U.S. Dollars
from LIBOR (provided that the LIBOR Period for such LIBOR Loan is then
expiring) to the U.S. Base Rate or the U.S. Reference Rate, as the case may be,
(provided that no conversion of a
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SECTION 2.04
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part only of any LIBOR Loans will be permitted if such conversion would reduce
the outstanding amount of such LIBOR Loans to less than the applicable minimum
borrowing amount for LIBOR Loans provided for in this Agreement) or from the
U.S. Base Rate or the U.S. Reference Rate, as the case may be, to LIBOR, or to
renew the LIBOR Period for a LIBOR Loan for which the then existing LIBOR
Period is then expiring, it shall give irrevocable prior written notice to the
Administrative Agent in substantially the form of Schedule 11 (a "NOTICE OF
CONVERSION/RENEWAL") specifying the identity of the Borrower; the Tranche or
Tranches under which the conversion or renewal is to be made; the types and
amounts of Accommodation in respect of which the conversion or renewal is to be
made; the LIBOR Period to be applicable to any LIBOR Loans to be included in
such conversion or renewal and the date (which shall be a Business Day and
shall be at the expiry of any LIBOR Period relative to any LIBOR Loan which is
the subject matter of any such conversion or renewal) on which such conversion
or renewal is to take place. No Accommodation will be included in any
Borrowing if the term of such Accommodation, or any LIBOR Period applicable to
such Accommodation, would mature beyond the Maturity Date. Without limitation
of any of the conditions precedent set forth in Section 10.02, no Borrower
shall be entitled to obtain (or in the case of an outstanding LIBOR Loan renew
the LIBOR Period therefor), and the Lenders will not be obliged to make
available, Accommodation by way of LIBOR Loans (or renew the outstanding LIBOR
Periods for outstanding LIBOR Loans), Bankers' Acceptances or BA Equivalent
Notes or Letters of Credit at any time that a Default or an Event of Default
has occurred and is continuing. Except for Accommodation under the Operating
Lines (which will be made available by the applicable Operating Lender pursuant
to arrangements from time to time entered into between the Cdn. Borrower and
the Cdn. Operating Lender and between the U.S. Borrower and each of the U.S.
Operating Lenders), the Lenders will not be obliged to make available on any
Borrowing Date Loans under any Tranche or Tranches in an aggregate amount less
than the applicable minimum amounts set forth in Schedule 12 with respect to
such Tranche or Tranches. The Administrative Agent will promptly notify the
applicable Lenders of the proposed Borrowing and the particulars of the
Accommodation to be made available by each Lender.
(2) A Notice of Borrowing requesting any Accommodation under the Credit
and a Notice or Conversion/Renewal shall be given not later than 10:00 a.m. on
the date which is that number of Business Days preceding the applicable
Borrowing Date set forth in Schedule 13 with respect to such type of
Accommodation.
1.025 BANKERS' ACCEPTANCES
(1) To facilitate the procedures contemplated in this Agreement, the Cdn.
Borrower will from time to time as required by the applicable Lender provide to
the BA Lenders and the Non BA Lenders an appropriate number of executed drafts
drawn by the Cdn. Borrower upon each BA Lender, in the form prescribed by such
BA Lender for bankers' acceptances (each such executed draft being referred to
as a "DRAFT"), and an appropriate number of executed non
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SECTION 2.05
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interest-bearing promissory notes of the Cdn. Borrower in favour of each Non BA
Lender, in the form of Schedule 14 (each such promissory note being referred to
as a "BA EQUIVALENT NOTE"). The dates, the maturity dates and the principal
amounts of all Drafts and BA Equivalent Notes delivered by the Cdn. Borrower
shall be left blank, to be completed by the Lenders as required by this
Agreement. The Drafts or BA Equivalent Notes shall be held by each Lender
subject to the same degree of care as if they were such Lender's own property
kept at the place at which the Drafts or BA Equivalent Notes are ordinarily
kept by such Lender. No Lender shall be liable for its failure to accept a
Draft or purchase a BA Equivalent Note as required by this Agreement if the
cause of such failure is, in whole or in part, due to the failure of the Cdn.
Borrower to provide Drafts or BA Equivalent Notes to the applicable Lender on a
timely basis.
(2) The Administrative Agent, promptly following receipt of a Notice of
Borrowing requesting Bankers' Acceptances, shall (i) advise each BA Lender of
the face amount and term of each Draft to be accepted by it, (ii) advise each
Non BA Lender of the face amount and term of the BA Equivalent Note to be
purchased by it, and (iii) advise each BA Lender whether the BA Lenders are
required by such Notice of Borrowing to purchase the Bankers' Acceptances
accepted by them. The term of all Bankers' Acceptances and BA Equivalent Notes
issued pursuant to any Notice of Borrowing shall be identical. The face amount
of each Bankers' Acceptance and BA Equivalent Note shall be Cdn. $100,000 or
any whole multiple of Cdn. $100,000, and the aggregate face amount of Bankers'
Acceptances and BA Equivalent Notes issued pursuant to any Notice of Borrowing
under any Tranche or Tranches shall not be less than the applicable amounts set
forth in Schedule 12 with respect to such Tranche or Tranches, as the case may
be. Each Bankers' Acceptance and BA Equivalent Note shall be dated the
Borrowing Date on which it is issued, and shall be for a term of one, two,
three or six months provided that in no event shall the term of a Bankers'
Acceptance or a BA Equivalent Note extend beyond the Maturity Date. The
aggregate face amount of the Drafts to be accepted at any time by a BA Lender,
and the face amount of the BA Equivalent Note to be purchased at any time by a
Non BA Lender, shall be determined by the Administrative Agent based upon the
amounts of the respective Commitments under the Tranche or Tranches under which
such Drafts and BA Equivalent Notes are being issued, except that, if the face
amount of any Draft to be accepted by a BA Lender or of the BA Equivalent Note
to be purchased by a Non BA Lender, determined as provided for above, would not
be Cdn. $100,000 or a whole multiple of Cdn. $100,000, the Administrative Agent
in its sole discretion may increase such face amount to the nearest whole
multiple of Cdn. $100,000 or may reduce such face amount to the nearest whole
multiple of Cdn. $100,000.
(3) Each BA Lender shall complete and accept on the applicable Borrowing
Date Drafts having the face amounts and term advised by the Administrative
Agent pursuant to subsection 2.05(2). If the BA Lenders are required to
purchase the Bankers' Acceptances accepted by them, each BA Lender shall
purchase on the applicable Borrowing Date the Bankers' Acceptances accepted by
it, for an aggregate price equal to the BA Discount Proceeds of such
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SECTION 2.05
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Bankers' Acceptances. In all other cases, it shall be the responsibility
of the Cdn. Borrower to arrange in accordance with normal market practice for
the sale on each Borrowing Date of the Bankers' Acceptances issued by it on
such Borrowing Date, and for such purpose the Cdn. Borrower shall advise the
Administrative Agent (which shall promptly give the relevant particulars to
each BA Lender) as soon as possible and in any event not later than 11:00 a.m.
on such Borrowing Date of the price for each Bankers' Acceptance payable by the
purchaser of such Bankers' Acceptance and the identity of the Person who will
pay such price to, and take delivery of such Bankers' Acceptance from, the
applicable BA Lender, and such BA Lender is authorized to release such Bankers'
Acceptance to such Person on receipt of a certified cheque or bank draft in an
amount equal to such price.
(4) Each Non BA Lender, in lieu of accepting Drafts or purchasing Bankers'
Acceptances on any Borrowing Date, will complete and purchase from the Cdn.
Borrower on such Borrowing Date a BA Equivalent Note in a face amount and for a
term identical to the aggregate face amount and term of the Drafts which such
Non BA Lender would have been required to accept on such Borrowing Date if it
were a BA Lender, for a price equal to the BA Discount Proceeds of such BA
Equivalent Note. Each Non BA Lender shall be entitled without charge to
exchange any BA Equivalent Note held by it for two or more BA Equivalent Notes
of identical date and aggregate face amount (subject to the minimum face amount
specified in Subsection 2.05(2)), and the Cdn. Borrower will execute and
deliver to the Administrative Agent such BA Equivalent Notes upon not less than
five Business Days prior written request for the same to the Cdn. Borrower and
the Administrative Agent shall arrange for delivery of such replacement BA
Equivalent Notes to such Non BA Lender and the return by such Non BA Lender to
the Administrative Agent for delivery to the Cdn. Borrower of the original BA
Equivalent Note for cancellation.
(5) Upon acceptance of each Draft or purchase of each BA Equivalent Note,
the Cdn. Borrower shall pay to the applicable Lender the related fee specified
in Section 3.09, and to facilitate payment such Lender shall be entitled to
deduct and retain for its own account the amount of such fee from the amount to
be transferred by such Lender to the Administrative Agent for the account of
such Borrower pursuant to subsection 5.01(1) in respect of the sale of the
related Bankers' Acceptance or of such BA Equivalent Note.
(6) If the Administrative Agent determines in good faith, which
determination shall be final, conclusive and binding upon the Cdn. Borrower,
and so notifies the Cdn. Borrower, that there does not exist at the applicable
time a normal market in Canada for the purchase and sale of bankers'
acceptances, any right of the Cdn. Borrower to require the Lenders to purchase
Bankers' Acceptances and BA Equivalent Notes under this Agreement shall be
suspended until the Administrative Agent determines that such market does exist
and gives notice thereof to the Cdn. Borrower, and any Notice of Borrowing
requesting Bankers' Acceptances shall be deemed to be a Notice of Borrowing
requesting Prime Rate Loans in a similar aggregate principal amount.
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SECTION 2.05
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(7) On the date of maturity of each Bankers' Acceptance or BA Equivalent
Note, the Cdn. Borrower shall pay to the Administrative Agent, for the account
of the holder of such Bankers' Acceptance or BA Equivalent Note, Cdn. Dollars
in an amount equal to the face amount of such Bankers' Acceptance or BA
Equivalent Note, as the case may be. The obligation of the Cdn. Borrower to
make such payment shall not be prejudiced by the fact that the holder of any
such Bankers' Acceptance is the Lender that accepted such Bankers' Acceptance.
No days of grace shall be claimed by the Cdn. Borrower for the payment at
maturity of any Bankers' Acceptance or BA Equivalent Note. If the Cdn.
Borrower does not make such payment, from the proceeds of Accommodation
obtained under this Agreement or otherwise, the Lender that accepted such
Bankers' Acceptance or initially purchased such BA Equivalent Note may (but
shall not be obliged to), without receipt of a Notice of Borrowing,
irrespective of whether any applicable conditions precedent under this
Agreement have been met and without waiver of the Default or the Event of
Default constituted by the Cdn. Borrower's failure to make such payment, make a
Prime Rate Loan to the Cdn. Borrower under the Tranche under which such
Bankers' Acceptance was issued or such BA Equivalent Note was purchased in the
face amount of such Bankers' Acceptance or BA Equivalent Note, as the case may
be, and shall promptly give notice of such Loan to the Cdn. Borrower and the
Administrative Agent (which shall promptly give similar notice to the other
Lenders). The Cdn. Borrower agrees to accept each such Prime Rate Loan and
irrevocably authorizes and directs the applicable Lender to apply the proceeds
of each such Loan in payment of the liability of the Cdn. Borrower with respect
to the related Bankers' Acceptance or BA Equivalent Note. Notwithstanding any
other provision of this Agreement, all Prime Rate Loans made as contemplated by
this subsection shall be payable on demand by the Administrative Agent or the
applicable Lender.
(8) If any Bankers' Acceptance or BA Equivalent Note is outstanding on the
Maturity Date or at any time that an Event of Default occurs, the Cdn. Borrower
will immediately, in the case of any Bankers' Acceptance or BA Equivalent Note
outstanding on the Maturity Date, and otherwise immediately upon demand by the
Administrative Agent, pay to the Administrative Agent, for the account of the
holder of such Bankers' Acceptance or BA Equivalent Note, Cdn. Dollars in an
amount equal to the face amount of such Bankers' Acceptance or BA Equivalent
Note, as the case may be. Such funds (together with interest on such funds)
shall be held by the Agent, subject to Section 9.03, for payment of the
liability of the Cdn. Borrower in respect of such Bankers' Acceptance or BA
Equivalent Note, and shall bear interest for such terms as are selected from
time to time by the Administrative Agent at the wholesale money market rate of
the Administrative Agent for deposits of similar amounts and maturities. Any
balance of such funds and interest shall be held by the Administrative Agent as
security for the remaining liabilities of the Cdn. Borrower under the Credit
Documents.
(9) The signature of any duly authorized officer of the Cdn. Borrower on a
Draft or a BA Equivalent Note may be mechanically reproduced in facsimile, and
all Drafts and BA Equivalent Notes bearing such facsimile signature shall be
binding upon the Cdn. Borrower as if they had been manually signed by such
officer, notwithstanding that such Person whose manual
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SECTION 2.05
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or facsimile signature appears on such Draft or BA Equivalent Note may no
longer hold office at the date of such Draft or BA Equivalent Note or at the
date of acceptance of such Draft by a BA Lender or at any time thereafter.
(10) Notwithstanding any other provision of this Agreement, the number of
different maturity dates for all Bankers' Acceptances and BA Equivalent Notes
outstanding at any time under Tranches 1, 2 and 3 shall not exceed 100 less the
number of LIBOR Periods for all LIBOR Loans outstanding at such time under such
Tranches, and there shall not at any time be more than that number of different
maturity dates for all Bankers' Acceptances and BA Equivalent Notes outstanding
at that time under the Cdn. Operating Line as may have been agreed to prior to
such time by the Cdn. Borrower and the Cdn. Operating Lender.
(11) For the purpose of calculating the undisbursed Credit or any
applicable Undisbursed Commitment or Undisbursed Tranche and for any other
relevant provision of this Agreement, the amount of Accommodation constituted
by any Bankers' Acceptance or BA Equivalent Note shall be the face amount of
such Bankers' Acceptance or BA Equivalent Note, as the case may be.
1.026 LETTERS OF CREDIT
(1) Each Letter of Credit requested by the Cdn. Borrower shall be made
available under the LC Line by the Cdn. LC Issuer on behalf of the Cdn. LC
Lenders and each Letter of Credit requested by the U.S. Borrower shall be made
available under the LC Line by the U.S. LC Issuer on behalf of the U.S. LC
Lenders. Each Letter of Credit (including all documents and instruments
required to be presented under such Letter of Credit) shall be satisfactory in
form and substance to the applicable LC Issuer. No Letter of Credit shall be
issued (or shall be renewable) for a term in excess of one year or for a term
which would extend beyond the Maturity Date, or shall require payment in any
currency other than Cdn. Dollars or U.S. Dollars in the case of a Letter of
Credit issued by the Cdn. LC Issuer or U.S. Dollars in the case of a Letter of
Credit issued by the U.S. LC Issuer.
(2) As a condition of the issuance or renewal of any Letter of Credit, the
Cdn. Borrower or the U.S. Borrower, as the case may be, shall pay to the
applicable LC Issuer and shall pay to the Administrative Agent for the account
of the applicable the applicable LC Lenders on the date of such issuance or
renewal the related fees specified in Section 3.10 and shall, if requested by
such LC Issuer, execute and deliver to such LC Issuer such LC Issuer's then
current standard form letter of credit application, reimbursement and
indemnification agreements (all of which shall constitute Credit Documents).
The Cdn. Borrower or the U.S. Borrower, as the case may be, shall also pay to
such LC Issuer its customary cable charges and other administrative charges in
respect of the issue of such Letter of Credit, the amendment or transfer of
such Letter of Credit, each renewal of such Letter of Credit and each drawing
made under such Letter of Credit.
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SECTION 2.06
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(3) The Cdn. Borrower or the U.S. Borrower, as the case may be, will pay
to the applicable LC Issuer sufficient funds in the currency of each Letter of
Credit, either immediately on demand by such LC Issuer, to reimburse such LC
Issuer for any payment made by it pursuant to such Letter of Credit, or at the
option of such LC Issuer by prior written notice to the applicable Borrower, on
or prior to the date on which any payment is to be made by such LC Issuer
pursuant to such Letter of Credit, to fund such payment by such LC Issuer. If
a Borrower does not make any payment required by the preceding sentence, from
the proceeds of Accommodation obtained under this Agreement or otherwise, the
applicable LC Issuer may (but shall not be obliged to), without receipt of a
Notice of Borrowing, irrespective of whether any applicable conditions
precedent under this Agreement have been met and without waiver of the Default
or the Event of Default constituted by such Borrower's failure to make such
required payment, make a Prime Rate Loan or U.S. Base Rate Loan to the Cdn.
Borrower (in the case of the Cdn. LC Issuer) or a U.S. Reference Rate Loan to
the U.S. Borrower (in the case of the U.S. LC Issuer), as the case may be, in
the amount and currency of such required payment, and shall promptly give
notice of such Loan to the applicable Borrower and the Administrative Agent
(which shall promptly give similar notice to the other LC Lenders). Each
Borrower agrees to accept each such Loan and irrevocably authorizes and directs
the applicable LC Issuer to apply the proceeds of each such Loan in payment of
the liability of such Borrower with respect to such required payment.
Notwithstanding any other provision of this Agreement, all Loans made as
contemplated by this subsection shall be payable on demand by the
Administrative Agent or the applicable LC Issuer.
(4) Each of the Cdn. LC Lenders, other than the Cdn. LC Issuer, agrees
that it will purchase from the Cdn. LC Issuer, and the Cdn. LC Issuer shall
sell to such Lenders, for cash, at par, without representation or warranty from
or Recourse Against the Cdn. LC Issuer and irrespective of whether a Default or
Event of Default has occurred and is continuing at the relevant time and
irrespective of whether the Credit has been terminated or any acceleration of
outstanding Accommodation has occurred pursuant to Section 9.02, pro rata based
on their respective Cdn. LC Commitments, an undivided interest in any Prime
Rate Loan or U.S. Base Rate Loan made by the Cdn. LC Issuer pursuant to
subsection 2.06(3), immediately upon such Prime Rate Loan or U.S. Base Rate
Loan being made, or if no such Loan has then been made an undivided interest in
any reimbursement right of the Cdn. LC Issuer from the Cdn. Borrower pursuant
to subsection 2.06(3) for any payment made by the Cdn. LC Issuer pursuant to a
Letter of Credit immediately on request by the Cdn. LC Issuer. Each of the
U.S. LC Lenders, other than the U.S. LC Issuer, agrees that it will purchase
from the U.S. LC Issuer, and the U.S. LC Issuer shall sell to such Lenders, for
cash, at par, without representation or warranty from or Recourse Against the
U.S. LC Issuer and irrespective of whether a Default or Event of Default has
occurred and is continuing at the relevant time and irrespective of whether the
Credit has been terminated or any acceleration of outstanding Accommodation has
occurred pursuant to Section 9.02, pro rata based on their respective U.S. LC
Commitments, an undivided interest in any U.S. Reference Rate Loan made by the
U.S. LC Issuer pursuant to
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SECTION 2.06
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subsection 2.06(3), immediately upon such U.S. Reference Rate Loan being made,
or if no such Loan has then been made an undivided interest in any
reimbursement right of the U.S. LC Issuer from the U.S. Borrower pursuant to
subsection 2.06(3) for any payment made by the U.S. LC Issuer pursuant to a
Letter of Credit immediately on request by the U.S. LC Issuer. The
Administrative Agent, upon consultation with the applicable Lenders, shall have
the power to settle any documentation required to evidence any such purchase
and, if deemed advisable by the Administrative Agent, to execute any document
as attorney for any Lender in order to complete any such purchase. The
Borrowers and the Lenders acknowledge that the foregoing arrangements are to be
settled by the applicable LC Issuer and the applicable LC Lenders among
themselves, and the Borrowers expressly consent to the foregoing arrangements
among the LC Issuers and the LC Lenders.
(5) If any Letter of Credit is outstanding on the Maturity Date or at any
time that an Event of Default occurs or that a domestic or foreign court issues
any judgement or order restricting or prohibiting payment by the applicable LC
Issuer under such Letter of Credit or extending the liability of such LC Issuer
to make payment under such Letter of Credit beyond the expiry date specified in
such Letter of Credit, the applicable Borrower shall immediately, in the case
of any Letter of Credit outstanding on the Maturity Date, and otherwise
immediately upon demand by the Administrative Agent, pay to the Administrative
Agent, for the account of such LC Issuer, funds in the currency of such Letter
of Credit and in the amount of the Accommodation constituted by such Letter of
Credit. Such funds (together with interest on such funds) shall be held by the
Administrative Agent, subject to Section 9.03, for payment of the liability of
such Borrower pursuant to subsection 2.06(3) or otherwise in respect of such
Letter of Credit so long as such LC Issuer has or may in any circumstance have
any liability under such Letter of Credit, and shall bear interest for such
terms as are selected from time to time by the Administrative Agent at the
wholesale money market rate of the Administrative Agent for deposits of similar
currency, amounts and maturities. Any balance of such funds and interest
remaining at such time as the applicable LC Issuer does not have and may never
have any liability under such Letter of Credit shall nevertheless continue to
be held by the Administrative Agent, if and so long as any Event of Default is
continuing, as security for the remaining liabilities of such Borrower under
the Credit Documents.
(6) Each Borrower agrees that neither LC Issuer nor any LC Lender nor any
of their respective officers, directors or correspondents shall assume
liability for, or be responsible for, the use which may be made of any Letter
of Credit; any acts or omissions of the beneficiary of any Letter of Credit
including the application of any payment made to such beneficiary; the form,
validity, sufficiency, correctness, genuineness or legal effect of any document
or instrument relating to any Letter of Credit, even if such document or
instrument should in fact prove to be in any respect invalid, insufficient,
inaccurate, fraudulent or forged; payment by an LC Issuer of any draft which
does not comply with the terms of any Letter of Credit, unless such payment
results from the gross negligence or wilful misconduct of such LC Issuer; the
failure of any
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SECTION 2.06
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document or instrument to bear any reference or adequate reference to any
Letter of Credit; any failure to note the amount of any draft on any Letter of
Credit or on any related document or instrument; any failure of the beneficiary
of any Letter of Credit to meet the obligations of such beneficiary to any
Borrower or any other Person; any errors, inaccuracies, omissions,
interruptions or delays in transmission or delivery of any messages, directions
or correspondence by mail, facsimile or otherwise, whether or not they are in
cipher; any inaccuracies in the translation of any messages, directions or
correspondence or for errors in the interpretation of any technical terms; or
any failure by an LC Issuer to make payment under any Letter of Credit as a
result of any law, control or restriction rightfully or wrongfully exercised or
imposed by any Governmental Authority or as a result of any other cause beyond
the control of such LC Issuer or its officers, directors or correspondents.
(7) The obligations of the Borrowers under this Section with respect to
any Letter of Credit shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement
under all circumstances including, without limitation, any matter referred to
in subsection 2.06(5); any invalidity of any obligation secured by any Letter
of Credit; any incapacity, disability or lack or limitation of status or of
power of a Borrower or the beneficiary of any Letter of Credit; any lack of
validity or enforceability of any Letter of Credit; the existence of any claim,
set-off, defense or other right which a Borrower or any other Restricted Party
or any of their Affiliates may have at any time against an LC Issuer, the
Administrative Agent, the Other Agents, any Lender, the beneficiary of any
Letter of Credit or any other Person; or any breach of contract or other
dispute between a Borrower or any other Restricted Party or any of their
Affiliates and an LC Issuer, the Administrative Agent, the Other Agents, any
Lender, the beneficiary of any Letter of Credit or any other Person.
(8) An LC Issuer may accept as complying with the terms of any Letter of
Credit any document or instrument required by such Letter of Credit to be
completed, signed, presented or delivered by or on behalf of any beneficiary
under such Letter of Credit which
72
SECTION 2.06
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has been completed, signed, presented or delivered by a receiver, trustee in
bankruptcy, assignee for the benefit of creditors, secured party or other like
person believed in good faith by such LC Issuer to be lawfully entitled to the
property of such beneficiary, and such LC Issuer may make payments under such
Letter of Credit to such Person. The provisions of this subsection are for the
sole benefit of the LC Issuers, the Administrative Agent and the Lenders, and
may not be relied on by any other Person.
(9) Each Letter of Credit, except as specifically provided in such Letter
of Credit, and subject to any provision of this Agreement to the contrary,
shall be subject to the Uniform Customs and Practice for Documentary Credits of
the International Chamber of Commerce current at the time of issuance of such
Letter of Credit.
(10) For the purpose of calculating the Undisbursed Credit, any applicable
Undisbursed Commitment or the Undisbursed LC Line and for any other relevant
provision of this Agreement, the amount of Accommodation constituted by any
Letter of Credit shall be the maximum amount in U.S. Dollars (for which purpose
any amount payable in a currency other than U.S. Dollars shall be deemed to be
the Equivalent Amount of U.S. Dollars) which the applicable LC Issuer may in
all circumstances be required to pay pursuant to the terms of such Letter of
Credit. In addition, for the purpose of calculating the principal amount of
outstanding Accommodation that has been made available at any time by any LC
Lender (including any LC Issuer in its capacity as an LC Lender), each Letter
of Credit issued by the Cdn. LC Issuer shall be deemed to have been made
available by the Cdn. LC Lenders pro rata based on their respective Cdn. LC
Commitments and each Letter of Credit issued by the U.S. LC Issuer shall be
deemed to have been made available by the U.S. LC Lenders pro rata based on
their respective U.S. LC Commitments.
1.027 OVERDRAFTS UNDER THE OPERATING LINES
(1) The Cdn. Borrower shall open a Cdn. Dollar operating account and a
U.S. Dollar operating account with the Cdn. Operating Lender. Subject to the
limitations set forth in this Agreement, the Cdn. Borrower shall be entitled to
obtain Prime Rate Loans under the Cdn. Operating Line by way of overdraft in
such Cdn. Dollar operating account and to obtain U.S. Base Rate Loans by way of
overdraft under the Cdn. Operating Line in such U.S. Dollar operating account.
The aggregate amount of all cheques drawn on such Cdn. Dollar operating account
and honoured by the Cdn. Operating Lender on each day together with the
aggregate amount of all other withdrawals debited to such account during such
day, net of the credit balance of such account at the beginning of such day (if
any) and all deposits or credits to such account during such day, shall be
deemed to be a Prime Rate Loan by way of overdraft made by the Cdn. Operating
Lender to the Cdn. Borrower under the Cdn. Operating Line on such day. The
aggregate amount of all cheques drawn on such U.S. Dollar operating account and
honoured by the Cdn. Operating Lender on each day together with the aggregate
amount of all other
73
SECTION 2.07
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withdrawals debited to such account during such day, net of the credit balance
of such account at the beginning of such day (if any) and all deposits or
credits to such account during such day, shall be deemed to be a U.S. Base Rate
Loan by way of overdraft made by the Cdn. Operating Lender to the Cdn. Borrower
under the Cdn. Operating Line on such day.
(2) The U.S. Borrower shall open a U.S. Dollar operating account with each
of the U.S. Operating Lenders. Subject to the limitations set forth in this
Agreement, the U.S. Borrower shall be entitled to obtain U.S. Reference Rate
Loans by way of overdraft under each of the U.S. Operating Lines in such U.S.
Dollar operating account maintained with the applicable U.S. Operating Lender.
The aggregate amount of all cheques drawn on any such U.S. Dollar operating
account and honoured by the applicable U.S. Operating Lender on each day
together with the aggregate amount of all other withdrawals debited to such
account during such day, net of the credit balance of such account at the
beginning of such day (if any) and all deposits or credits to such account
during such day, shall be deemed to be a U.S. Reference Rate Loan by way of
overdraft made by such U.S. Operating Lender to the U.S. Borrower under the
U.S. Operating Line from such U.S. Lender on such day.
1.028 LENDERS' ACCOUNTS
(1) Each Lender will open and maintain an account or accounts evidencing
(i) the indebtedness and obligations of the applicable Borrower to such Lender
under this Agreement in respect of outstanding Accommodation and accrued
interest, fees and other amounts payable under this Agreement, (ii) the types
of Accommodation outstanding from such Lender to the applicable Borrower from
time to time and the date or dates on which such Accommodation was made
available to such Borrower, and (iii) the amounts from time to time paid by
such Borrower to such Lender under this Agreement on account of Accommodation,
interest, fees and other amounts. Each Borrower acknowledges, confirms and
agrees that all such accounts kept by the Lenders will constitute prima facie
evidence of the matters referred to above; provided, however, that the failure
of any Lender to make any entry or recording in any such account shall not
limit or otherwise affect the obligations of any Borrower under this Agreement
or with respect to any Accommodation, interest, fees or other amounts owed to
such Lender.
(2) The Administrative Agent will maintain a register (the "REGISTRY OF
COMMITMENTS") on which the Administrative Agent will record the nature and
amount of all Commitments from time to time of each of the Lenders, the
Accommodation made from time to time by each of the Lenders (other than the
Operating Lenders) and each repayment in respect of the principal amount of
such Accommodation of each such Lender (other than the Operating Lenders). The
Administrative Agent will open the Registry of Commitments on the date of this
Agreement and will enter into and record on the Registry of Commitments on such
date the Commitments of all of the Lenders as set forth in Schedules 1 and 27
and the Commitments of each of the Operating Lenders on the date of this
Agreement. Thereafter the Administrative
74
SECTION 2.08
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Agent will enter into and record on the Registry of Commitments any and all
changes to the Commitments of any one or more Lenders made pursuant to the
provisions of this Agreement, the addition of new Lenders and the removal of
Lenders as a result of assignments and transfers made pursuant to Section 12.01
and all assignments and transfers of Commitments made pursuant to Section
12.01. Failure to make any such recordation, or any error in such recordation
shall not affect either of the Borrower's obligations in respect of any
Accommodation or otherwise under or in respect of any Credit Document. The
transfer of any Commitment of any Lender and the rights to the principal of,
interest on and fees with respect to any Accommodation outstanding pursuant to
such Commitment shall not be effective as between any Borrower, the
Administrative Agent and the transferee until such transfer is recorded on the
Registry of Commitments. The registration of any assignment or transfer of any
Commitment and Accommodation outstanding thereunder shall be recorded by the
Administrative Agent on the Registry of Commitments only upon the acceptance by
the Administrative Agent of a properly executed and delivered Undertaking and a
properly executed and delivered assignment and assumption agreement pursuant to
paragraph 12.01(b)(iii). The Borrowers agree to indemnify and save harmless
the Administrative Agent from and against any losses, claims, damages and
liabilities of whatsoever nature which may be imposed on, served against or
incurred by the Administrative Agent in performing its duties under this
subsection. In the event of any conflict between the Registry of Commitments
and any account maintained by any Lender pursuant to subsection 2.08(1), the
Registry of Commitments shall prevail. Each of the Borrower's designates the
Administrative Agent to also serve as such Borrower's agent solely for the
purposes of this subsection for the purpose of maintaining the Registry of
Commitments.
1.029 LIBOR LOANS
(1) Each LIBOR Loan shall be U.S. $100,000 or any whole multiple of U.S.
$100,000, and the aggregate amount of all LIBOR Loans advanced pursuant to any
Notice of Borrowing under any Tranche or Tranches shall not be less than the
applicable amounts set forth in Schedule 12 with respect to such Tranche or
Tranches.
(2) The aggregate face amount of LIBOR Loans from a Lender on any
Borrowing Date shall be determined by the Administrative Agent based upon the
amounts of the respective Commitments under the Tranche or Tranches under which
such LIBOR Loans are being made, except that, if the amount of any LIBOR Loan
to be made by a Lender, determined as provided for above, would not be U.S.
$100,000 or a whole multiple of U.S. $100,000, the Administrative Agent in its
sole discretion may increase such face amount to the nearest whole multiple of
U.S. $100,000 or may reduce such face amount to the nearest whole multiple of
U.S. $100,000.
75
SECTION 2.10
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1.201 OPTIONAL REDUCTION OF LIMIT OF TRANCHES
The Cdn. Borrower shall have the right at any time and from time to time,
on behalf of the Borrowers, upon not less than 30 days prior written notice to
the Administrative Agent, to permanently reduce the limit of any Tranche
(provided that in the case of any of Tranches 1, 2 and 3 such reduction must be
made pro rata among all such Tranches then in effect) (and accordingly the
limit of each Commitment under such Tranche) by all or any part of the
Undisbursed Tranche of such Tranche; provided, however, that no such reduction
of the limit of a Tranche shall be in (x) an aggregate amount less than U.S.
$1,000,000 (or the entire amount of such Tranche if lesser), or (y) an
aggregate amount in excess of U.S. $1,000,000 which is not a whole multiple of
U.S. $100,000 (or the entire amount of such Tranche if lesser).
1.21 CERTAIN PRE-EXISTING ACCOMMODATION
(1) From and after the Closing Date:
(a) Pre-existing BA Equivalent Notes: Each Pre-existing BA Equivalent
Note shall be, and shall be deemed for all purposes to be, a BA
Equivalent Note purchased from the Cdn. Borrower by the applicable
Pre-existing Accommodation Lender indicated in Schedule 8, and
outstanding, under this Agreement under the applicable Tranche
specified in Schedule 8 as being applicable to such Pre-existing BA
Equivalent Note;
(b) Pre-existing BAs: Each Pre-existing BA shall be, and shall be
deemed for all purposes to be, a Bankers' Acceptance accepted by the
applicable Pre-existing Accommodation Lender indicated in Schedule 8
for the account of the Cdn. Borrower, and outstanding, under this
Agreement under the applicable Tranche specified in Schedule 8 as
being applicable to such Pre-existing BA;
(c) Pre-existing LCs: Each Pre-existing LC shall be, and shall be
deemed for all purposes (including for the purposes of Sections 2.06
and 3.10) to be, (a) in the case of any such Pre-existing LC issued
by the Cdn. LC Issuer, a Letter of Credit issued by the Cdn. LC
Issuer on behalf of the Cdn. LC Lenders for the account of the Cdn.
Borrower, and outstanding, under this Agreement under the LC Line,
(b) in the case of any such Pre-existing LC issued by the U.S. LC
Issuer, a Letter of Credit issued by the U.S. LC Issuer on behalf of
the U.S. LC Lenders for the account of the U.S. Borrower, and
outstanding, under this Agreement under the LC Line, (c) in the case
of any such Pre-existing LC issued by the Cdn. Operating Lender, a
Letter of Credit from the Cdn. Operating Lender issued for the
account of the Cdn. Borrower, and outstanding, under this Agreement
under the Cdn. Operating Line, and (d) in the case of any such
Pre-existing LC issued by a U.S.
76
SECTION 2.11
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Operating Lender, a Letter of Credit from such U.S. Operating
Lender issued for the account of the U.S. Borrower, and outstanding,
under this Agreement under the U.S. Operating Line from such U.S.
Operating Lender;
(d) Pre-existing LIBOR Loans: Each Pre-existing LIBOR Loan shall be,
and shall be deemed for all purposes to be, a LIBOR Loan made by the
applicable Pre-existing Accommodation Lender indicated in Schedule 8
to the applicable Borrower indicated in Schedule 8, and outstanding,
under this Agreement under the applicable Tranche specified in
Schedule 8 as being applicable to such Pre-existing LIBOR Loan;
(e) Pre-existing Prime Rate Overdraft Loans: Each Pre-existing Prime
Rate Overdraft Loan shall be, and shall be deemed for all purposes
to be, a Prime Rate Loan made by the Cdn. Operating Lender by way of
overdraft to the Cdn. Borrower, and outstanding, under this
Agreement under the Cdn. Operating Line;
(f) Pre-existing U.S. Base Rate Overdraft Loans: Each Pre-existing U.S.
Base Rate Overdraft Loan shall be, and shall be deemed for all
purposes to be, a U.S. Base Rate Loan made by the Cdn. Operating
Lender by way of overdraft to the Cdn. Borrower, and outstanding,
under this Agreement under the Cdn. Operating Line;
(g) Pre-existing U.S. Reference Rate Overdraft Loans: Each Pre-existing
U.S. Reference Rate Overdraft Loan from a U.S. Operating Lender
shall be, and shall be deemed for all purposes to be, a U.S.
Reference Rate Loan made by such U.S. Operating Lender by way of
overdraft to the U. S. Borrower, and outstanding, under this
Agreement under the U.S. Operating Line from such U.S. Operating
Lender; and
(h) Pre-existing Accommodation: All of the Pre-existing Accommodation
(a) will constitute outstanding indebtedness and liabilities of the
applicable Borrower to the applicable Pre-existing Accommodation
Lender in its capacity as a Lender under this Agreement, (b) will be
subject to all of the terms and provisions of this Agreement and any
other applicable Credit Documents including, without limitation, in
the case of Pre-existing LIBOR Loans, Pre-existing Prime Rate
Overdraft Loans, Pre-existing U.S. Base Rate Overdraft Loans and
Pre-existing U.S. Reference Rate Overdraft Loans the payment of
interest from and after the Closing Date at the rates, in the manner
and at the times provided for in this Agreement, and (c) will be
secured by the Security.
(2) Each of the Borrowers acknowledges to and agrees with each of the
applicable Pre-existing Accommodation Lenders that each such Borrower is
indebted to each such Pre-
77
SECTION 2.11
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existing Accommodation Lender for, and agrees to pay to each such Pre-existing
Accommodation Lender on the first interest payment date under Article Three
following the Closing Date, all interest which is, at the Closing Date, accrued
and unpaid under the Existing Philip Bank Credit Agreement in respect of the
Pre-existing LIBOR Loans, Pre-existing Prime Rate Overdraft Loans, Pre-existing
U.S. Base Rate Overdraft Loans and Pre-existing U.S. Reference Rate Overdraft
Loans outstanding from such Lender to such Borrower.
(3) All of the provisions of Section 2.06 and subsection 5.05(2) shall
apply to each of the Pre-existing LCs as if reference in such Section to the LC
Issuer were deemed to be reference to the applicable Pre-existing Accommodation
Lender and, with respect to the Cdn. Operating Lender and each U.S. Operating
Lender in their capacities as Pre-existing Accommodation Lenders, reference in
such Section to the LC Line was deemed to be reference to the Cdn. Operating
Line or the applicable U.S. Operating Line, as the case may be. For greater
certainty, Pre-existing LCs from the Cdn. Operating Lender and the U.S.
Operating Lenders may not be renewed but will, on expiry, be replaced by a new
Letter of Credit issued by the applicable LC Issuer under the LC Line. The
Cdn. Borrower, the Cdn. Operating Lender, the U.S. Operating Lenders and the LC
Lenders will co-operate with a view to replacing all Pre-existing LCs from the
Cdn. Operating Lender and the U.S. Operating Lenders as soon as possible
following the Closing Date (in a manner which will not cause duplication of
Letters of Credit or inconvenience to the Borrowers) with new Letters of Credit
issued by the LC Issuers under the LC Line.
(4) Notwithstanding any other provision of this Agreement which would
require that Borrowings be made on a pro rata basis by any Lenders or group or
groups of Lenders, (a) each of the Pre-existing Accommodation Lenders, subject
to subsection 2.11(3), will continue to hold after the Closing Date, until
their respective maturity or expiry dates, all Pre-existing Accommodation held
by such Lenders on the Closing Date, (b) subject to clause (c) of this
subsection and to the limit of each Lender's applicable Commitment, all new
Borrowings under this Agreement will be made pro rata by the applicable Lenders
or group or groups of Lenders as otherwise required under this Agreement
without regard to the Pre-existing Accommodation held by any such Lenders, and
(c) the Administrative Agent may from time to time in its discretion adjust the
manner in which any Lenders or group or groups of Lenders share in any new
Borrowings under this Agreement having regard to the outstanding Pre-existing
Accommodation at such time and with a view to ensuring that all applicable
Lenders or groups of Lenders hold outstanding Accommodation as soon as possible
after the Closing Date on a pro rata basis as contemplated under the other
provisions of this Agreement.
ARTICLE THREE
INTEREST AND FEES
78
SECTION 3.01
- 70 -
1.031 LOANS
Each Prime Rate Loan, U.S. Base Rate Loan, U.S. Reference Rate Loan and
LIBOR Loan, as the case may be, under the Credit shall bear interest, in the
case of Prime Rate Loans, U.S. Base Rate Loans and U.S. Reference Rate Loans,
from the Borrowing Date for such Loan to the date of repayment of such Loan
and, in the case of LIBOR Loans, during each LIBOR Period applicable to such
Loan, on the unpaid amount of such Loan calculated (but not compounded) daily
at a nominal rate per annum for each such Loan equal to the Applicable
Reference Rate for such type of Loan in effect from time to time plus an
additional pricing adjustment (the "APPLICABLE INTEREST PRICING ADJUSTMENT")
determined in accordance with the provisions of this Section. On the date of
this Agreement the Applicable Interest Pricing Adjustment under this Section
for Prime Rate Loans, U.S. Base Rate Loans and U.S. Reference Rate Loans is 25
bps and the Applicable Interest Pricing Adjustment under this Section for LIBOR
Loans is 125 bps. The Applicable Interest Pricing Adjustment for each type of
Loan will change based on changes to the Debt to EBITDA Pricing Adjustment
Ratio. The Applicable Interest Pricing Adjustment for each type of Loan will
be reset (a) on September 1, 1997 to that amount indicated below as applying to
such type of Loan where the Debt to EBITDA Pricing Adjustment Ratio on such day
is as set forth below, and (b) on each Pricing Adjustment Date which occurs on
or after January 1, 1998 to that amount indicated below as applying to such
type of Loan where the Debt to EBITDA Pricing Adjustment Ratio on such Pricing
Adjustment Date is as set forth below:
DEBT TO PRIME RATE U.S. BASE U.S. REFERENCE LIBOR LOANS
EBITDA PRICING LOANS RATE LOANS RATE LOANS
ADJUSTMENT
RATIO
Prime U.S. Base U.S. Reference LIBOR +
Rate + Rate + Rate +
< 2.0:1 0 bps 0 bps 0 bps 45 bps
< 2.5:1 0 bps 0 bps 0 bps 60 bps
< 3.0:1 0 bps 0 bps 0 bps 75 bps
< 3.5:1 0 bps 0 bps 0 bps 95 bps
< 4.0:1 25 bps 25 bps 25 bps 125 bps
= or > 4.0:1 37.5 bps 37.5 bps 37.5 bps 137.5 bps
1.032 OVERDUE PRINCIPAL AND INTEREST
(1) If all or part of any Prime Rate Loan, U.S. Base Rate Loan or U.S.
Reference Rate Loan shall not be paid when due (whether at its stated maturity,
by acceleration or otherwise), such overdue amount shall bear interest (as well
after as before judgment), payable on demand, at a rate per annum equal to the
rate of interest applicable under this Agreement from time to time to such Loan
from the date of such non-payment until paid in full. If any LIBOR Loan shall
not
79
SECTION 3.02
- 71 -
be paid when due (whether at its stated maturity, by acceleration or
otherwise), such amount shall bear interest (as well after as before judgment),
payable on demand, at a rate per annum equal to the rate of interest applicable
under this Agreement from time to time to:
(a) U.S. Base Rate Loans in the case of any LIBOR Loan under Tranche 1
or the Cdn. Operating Line or any LIBOR Loan from a Cdn. Cross
Border Lender under Tranche 2; and
(b) U.S. Reference Rate Loans in the case of any LIBOR Loan under
Tranche 3 or either U.S. Operating Line or any LIBOR Loan from a
U.S. Cross Border Lender under Tranche 2;
in each case from the date of such non-payment until paid in full.
(2) If all or part of any interest in respect of any Prime Rate Loan, U.S.
Base Rate Loan or U.S. Reference Rate Loan shall not be paid when due (whether
at its stated maturity, by acceleration or otherwise), such overdue interest
shall, to the extent permitted by law, bear interest (as well after as before
judgment), payable on demand, at a rate per annum equal to the rate of interest
applicable under this Agreement from time to time to the type of Loan in
respect of which such interest was not paid from the date of such non-payment
until paid in full. If all or part of any interest in respect of any LIBOR
Loan shall not be paid when due (whether at its stated maturity, by
acceleration or otherwise), such overdue interest shall bear interest (as well
after as before judgment), payable on demand, at a rate per annum equal to the
rate of interest applicable under this Agreement from time to time to:
(a) U.S. Base Rate Loans in the case of overdue interest on any LIBOR
Loan under Tranche 1 or the Cdn. Operating Line or any LIBOR Loan
from a Cdn. Cross Border Lender under Tranche 2; and
(b) U.S. Reference Rate Loans in the case of overdue interest on any
LIBOR Loan under Tranche 3 or either U.S. Operating Line or any
LIBOR Loan from a U.S. Cross Border Lender under Tranche 2;
in each case from the date of such non-payment until paid in full.
1.033 INTEREST ON OTHER AMOUNTS
If any amount owed by a Restricted Party to the Administrative Agent or to
any Lender under any of the Credit Documents is not paid when due and payable,
and there is no other provision in any Credit Document specifying the interest
payable on such overdue amount, such overdue amount shall bear interest (as
well after as before judgement), payable (a) on demand in
80
SECTION 3.03
- 72 -
Cdn. Dollars at a rate per annum equal at all times to the Prime Rate plus 2%
(in the case of any such amount payable in Cdn. Dollars), or (b) on demand in
U.S. Dollars at a rate per annum equal at all times to the U.S. Base Rate plus
2% (in the case of any such amount payable in U.S. Dollars to the
Administration Agent, a Cdn. Only Lender, a Cdn. Cross Border Lender, the Cdn.
Operating Lender or a Cdn. LC Lender) or the U.S. Reference Rate plus 2% (in
the case of any such amount payable in U.S. Dollars to a U.S. Only Lender, a
U.S. Cross Border Lender, either U.S. Operating Lender or a U.S. LC Lender), in
each such case from the date of non-payment until paid in full (which rate per
annum, in each case, shall change automatically without notice to the
Restricted Parties as and when the Prime Rate or the U.S. Base Rate or the U.S.
Reference Rate, as the case may be, shall change so that at all times the
interest payable under this Section shall be based on the Prime Rate or the
U.S. Base Rate or the U.S. Reference Rate, as the case may be, then in effect).
1.034 INTEREST PAYMENT DATES
(1) Except as specified in subsections 3.02(1) and (2), interest in
respect of Prime Rate Loans, U.S. Base Rate Loans and U.S. Reference Rate Loans
shall be payable in arrears on the first Business Day in each month with
respect to interest which has accrued to and including the last day of the
immediately preceding month.
(2) Except as specified in subsection 3.02(2), interest in respect of each
LIBOR Loan shall be payable on the last day of each LIBOR Period applicable to
such LIBOR Loan and also, with respect to each LIBOR Period of a term longer
than three months, at the end of each three-month period included in such LIBOR
Period.
1.035 LIBOR PERIOD DETERMINATION
Each Borrower shall select the term of each LIBOR Period with respect to
each LIBOR Loan made or to be made available to it by telephone notice (to be
confirmed the same day by way of a Notice of Conversion/Renewal) or facsimile
received by the Administrative Agent not later than 10:00 a.m. on the third
Business Day prior to the commencement of such LIBOR Period. The first LIBOR
Period for any LIBOR Loan shall commence on (and include) the Borrowing Date
for such LIBOR Loan, and each LIBOR Period occurring after such first LIBOR
Period for such LIBOR Loan shall commence on (and include) the last day of the
immediately preceding LIBOR Period for such LIBOR Loan. In each case, a LIBOR
Period shall end on the day in the last calendar month included in such Libor
Period that numerically corresponds to the first day of such LIBOR Period.
Notwithstanding the foregoing:
(a) If the Administrative Agent shall not have received due notice of
renewal of the LIBOR Period with respect to any outstanding LIBOR
Loan in accordance with the first sentence of this Section, or if a
Default or Event of Default is continuing
81
SECTION 3.05
- 73 -
the expiry of any LIBOR Period with respect to any outstanding LIBOR
Loan, such LIBOR Loan shall be automatically converted on the expiry
of such existing LIBOR Period to:
(i) a U.S. Base Rate Loan under the same Tranche as the Tranche
under which such LIBOR Loan was outstanding in the case of
any LIBOR Loan under Tranche 1 or the Cdn. Operating Line
or any LIBOR Loan from a Cdn. Cross Border Lender under
Tranche 2; or
(ii) a U.S. Reference Rate Loan under the same Tranche as the
Tranche under which such LIBOR Loan was outstanding in the
case of any LIBOR Loan under Tranche 3 or either U.S.
Operating Line or any LIBOR Loan from a U.S. Cross Border
Lender under Tranche 2.
(b) Any LIBOR Period that begins on the last Business Day in a calendar
month, or on a day for which there is no numerically corresponding
day in the calendar month in which such LIBOR Period would otherwise
end, shall end on the last Business Day in the calendar month in
which such LIBOR Period would otherwise end.
(c) If any LIBOR Period would otherwise end on a day which is not a
Business Day, such LIBOR Period shall end on the next succeeding
Business Day, provided, however, that if such next succeeding
Business Day falls in the next calendar month, such LIBOR Period
shall end on the next preceding Business Day.
(d) No LIBOR Period may extend beyond the Maturity Date.
(e) The number of different LIBOR Periods for all LIBOR Loans
outstanding at any time under Tranches 1, 2 and 3 shall not exceed
100 less the number of maturity dates for all Bankers' Acceptances
and BA Equivalent Notes outstanding at that time under such
Tranches, and there shall not at any time be more than that number
of different LIBOR Periods for all LIBOR Loans outstanding at that
time under an Operating Line as may have been agreed to prior to
such time by the applicable Borrower and Operating Lender under such
Operating Line.
1.036 FAILURE OF THE LIBOR
If at any time a Lender (or in the case of clause (i) below and any Lender
under Tranche 1, 2 or 3, the Administrative Agent) shall determine (which
determination shall be conclusive and binding) that by reason of circumstances
affecting the London interbank market or any other relevant financial market or
the position of such Lender (or in the case of clause (i) below and
82
SECTION 3.06
- 74 -
any Lender under Tranche 1, 2 or 3, the Administrative Agent) in any such
market (i) adequate and reasonable means do not exist for ascertaining the
LIBOR to be applicable during any LIBOR Period, or (ii) the LIBOR does not
adequately reflect the effective cost to such Lender of the funds to be used by
it to make or continue the applicable LIBOR Loan for any LIBOR Period, or (iii)
U.S. Dollars in the amount of the applicable LIBOR Loan are not readily
available to such Lender for any LIBOR Period in the London interbank market,
then such Lender shall give notice of such event (by telephone to be confirmed
the same day in writing) or by facsimile to the applicable Borrower and the
Administrative Agent (which shall promptly give a copy of such notice to the
other Lenders). On the last day of the LIBOR Period then applicable to each
such LIBOR Loan, the interest on each LIBOR Loan then outstanding from such
Lender as a LIBOR Loan shall cease to be calculated under this Agreement on the
basis of the LIBOR and shall commence to be calculated under this Agreement on
the basis of:
(a) the U.S. Base Rate in the case of any such LIBOR Loan under Tranche
1 or the Cdn. Operating Line or any such LIBOR Loan from a Cdn.
Cross Border Lender under Tranche 2; or
(b) the U.S. Reference Rate in the case of any such LIBOR Loan under
Tranche 3 or either U.S. Operating Line or any such LIBOR Loan from
a U.S. Cross Border Lender under Tranche 2.
Any Notice of Borrowing which has been delivered to such Lender requesting a
LIBOR Loan on a Borrowing Date on or subsequent to such notification date shall
be deemed to request:
(a) a U.S. Base Rate Loan in the same amount in the case of any such
LIBOR Loan under Tranche 1 or the Cdn. Operating Line or any such
LIBOR Loan from a Cdn. Cross Border Lender under Tranche 2; or
(b) a U.S. Reference Rate Loan in the same amount in the case of any
such LIBOR Loan under Tranche 3 or either U.S. Operating Line or any
such LIBOR Loan from a U.S. Cross Border Lender under Tranche 2.
The Borrowers shall not be entitled to obtain any LIBOR Loan from such Lender
so long as any such condition shall continue to exist, and any Loan that would
otherwise have been made by such Lender as a LIBOR Loan shall instead be made
by such Lender as:
(a) a U.S. Base Rate Loan in the same amount in the case of any such
LIBOR Loan under Tranche 1 or the Cdn. Operating Line or any such
LIBOR Loan from a Cdn. Cross Border Lender under Tranche 2; or
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SECTION 3.06
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(b) a U.S. Reference Rate Loan in the same amount in the case of any
such LIBOR Loan under Tranche 3 or either U.S. Operating Line or any
such LIBOR Loan from a U.S. Cross Border Lender under Tranche 2.
1.037 DETERMINATION OF RATES AND BASIS OF CALCULATION OF INTEREST
(1) The BA Discount Rate, Federal Funds Rate, LIBOR, Prime Rate, U.S. Base
Rate and U.S. Reference Rate shall be determined by the Administrative Agent
whenever such determination is required for any purpose of this Agreement, and
such determination by the Administrative Agent, and each determination by a
Lender of a rate to be notified to the Administrative Agent pursuant to the
definition of "BA Discount Rate" in Section 1.01, or in connection with any
rates or fees applicable to any Operating Line, shall be prima facie evidence
of such rate. The Administrative Agent shall, at the request of either
Borrower, promptly notify such Borrower of any of the rates notified to the
Administrative Agent by the Lenders with respect to the "BA Discount Rate" or
any Operating Line.
(2) All interest in respect of Prime Rate Loans shall be payable in Cdn.
Dollars and all interest in respect of U.S. Base Rate Loans, U.S. Reference
Rate Loans and LIBOR Loans shall be payable in U.S. Dollars.
(3) In calculating interest or fees payable under this Agreement for any
period, unless otherwise specifically stated, the first day of such period
shall be included and the last day of such period shall be excluded.
1.038 MAXIMUM RETURN
Notwithstanding any provision of this Agreement, in no event shall the
aggregate "interest" (as defined in section 347 of the Criminal Code (Canada))
payable under this Agreement exceed the effective annual rate of interest on
the "credit advanced" (as defined in that section) under this Agreement
lawfully permitted by that section, nor shall the interest payable under this
Agreement exceed the rate of interest which may be lawfully charged under this
Agreement by any other Applicable Law having application to interest payable
under this Agreement, and, if any payment, collection or demand pursuant to
this Agreement in respect of "interest" (as defined in that section) or under
any such other Applicable Law is determined to be contrary to the provisions of
that section or such other Applicable Law, such payment, collection or demand
shall be deemed to have been made by mutual mistake of the applicable Borrower
and the applicable Lender and the amount of such payment or collection shall be
refunded to such Borrower. For the purposes of this Agreement, the effective
annual rate of interest shall be determined in accordance with generally
accepted actuarial practices and principles over the term of the Credit and, in
the event of dispute, a certificate of a Fellow of the
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SECTION 3.08
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Canadian Institute of Actuaries appointed by the Administrative Agent will be
prima facie evidence of such rate.
1.039 FEES FOR BANKERS' ACCEPTANCES AND BA EQUIVALENT NOTES
The Cdn. Borrower shall pay to each BA Lender in respect of each Draft
tendered by such Borrower to and accepted by such BA Lender, and to each Non BA
Lender in respect of each BA Equivalent Note tendered to and purchased by such
Non BA Lender, as a condition of such acceptance or purchase, a fee in Cdn.
Dollars calculated on the basis of the face amount and the term of such
Bankers' Acceptance or BA Equivalent Note and at a rate per annum equal to the
stamping fee (the "APPLICABLE STAMPING FEE") in effect on the date of such
acceptance or purchase as determined in accordance with the provisions of this
Section. On the date of this Agreement the Applicable Stamping Fee is 125 bps.
The Applicable Stamping Fee will change based on changes to the Debt to EBITDA
Pricing Adjustment Ratio. The Applicable Stamping Fee will be reset (a) on
September 1, 1997 to that amount indicated below as applying where the Debt to
EBITDA Pricing Adjustment Ratio on such day is as set forth below, and (b) on
each Pricing Adjustment Date which occurs on or after January 1, 1998 to that
amount indicated below as applying where the Debt to EBITDA Pricing Adjustment
Ratio on such Pricing Adjustment Date is as set forth below:
DEBT TO EBITDA
PRICING ADJUSTMENT APPLICABLE STAMPING
RATIO FEE
< 2.0:1 45 bps
< 2.5:1 60 bps
< 3.0:1 75 bps
< 3.5:1 95 bps
< 4.0:1 125 bps
= or > 4.0:1 137.5 bps
1.301 FEES FOR LETTERS OF CREDIT
The applicable Borrower, in respect of each Letter of Credit to be issued
or renewed by an LC Issuer under the LC Line, as a condition of such issuance
or renewal:
(a) shall pay to the applicable LC Issuer for its own account a fee (the
"FRONTING FEE") in the currency of the Letter of Credit calculated
at the rate of 0.125% per annum on the basis of the maximum amount
and term of such Letter of Credit, and
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SECTION 3.10
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(b) shall pay the Administrative Agent for the Ratable account of the
applicable LC Lenders (including the applicable LC Issuer in its
capacity as an LC Lender) a fee (the "ISSUANCE FEE") in the currency
of the Letter of Credit calculated at a rate per annum equal to the
rate (the "APPLICABLE LC FEE PRICING RATE") in effect on the date of
such issuance or renewal, as the case may be, as determined in
accordance with the provisions of this Section, on the basis of the
maximum amount and term of such Letter of Credit.
On the date of this Agreement the Applicable LC Fee Pricing Rate is 125 bps.
The Applicable LC Fee Pricing Rate will change based on changes to the Debt to
EBITDA Pricing Adjustment Ratio. The Applicable LC Fee Pricing Rate will be
reset (a) on September 1, 1997 to that amount indicated below as applying where
the Debt to EBITDA Pricing Adjustment Ratio on such day is as set forth below,
and (b) on each Pricing Adjustment Date which occurs on or after January 1,
1998 to that amount indicated below as applying where the Debt to EBITDA
Pricing Adjustment Ratio on such Pricing Adjustment Date is as set forth below:
DEBT TO EBITDA APPLICABLE LC FEE
PRICING ADJUSTMENT PRICING RATE
RATIO
< 2.0:1 45 bps
< 2.5:1 60 bps
< 3.0:1 75 bps
< 3.5:1 95 bps
< 4.0:1 125 bps
= or > 4.0:1 137.5 bps
The Administrative Agent will promptly distribute the Issuance Fee among the
applicable LC Lenders (including the applicable LC Issuer in its capacity as an
LC Lender). For greater certainty, on the Closing Date, (a) the Cdn. Borrower
shall pay to the Cdn. LC Issuer a Fronting Fee for each Pre-existing LC issued
by the Cdn. LC Issuer calculated in the manner referred to above on the basis
of the maximum amount and the balance of the term of such Pre-existing LC on
such date, (b) the U.S. Borrower shall pay to the U.S. LC Issuer a Fronting Fee
for each Pre-existing LC issued by the U.S. LC Issuer calculated in the manner
referred to above on the basis of the maximum amount and the balance of the
term of such Pre-existing LC on such date, and (c) each LC Issuer shall pay to
the Administrative Agent for distribution to the applicable LC Lenders such LC
Lenders' share of the Issuance Fee for each of the Pre-existing LCs calculated
in the manner referred to above on the basis of the maximum amount and the
balance of the term of such Pre-existing LC on such date.
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SECTION 3.11
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1.31 STANDBY FEE
The Borrowers shall pay to the Administrative Agent for distribution to
each Lender a standby fee in U.S. Dollars, for the period commencing on the
Closing Date and ending on the Maturity Date (or on such earlier date as the
Commitments are terminated), calculated on the daily amount of each Undisbursed
Tranche at a rate per annum equal to the rate (the "APPLICABLE STANDBY FEE
PRICING RATE") as determined in accordance with the provisions of this Section.
On the date of this Agreement the Applicable Standby Fee Pricing Rate is 35
bps. The Applicable Standby Fee Pricing Rate will be reset (a) on September 1,
1997 to that amount indicated below as applying where the Debt to EBITDA
Pricing Adjustment Ratio on such day is as set forth below, and (b) on each
Pricing Adjustment Date which occurs on or after January 1, 1998 to that amount
indicated below as applying where the Debt to EBITDA Pricing Adjustment Ratio
on such Pricing Adjustment Date is as set forth below:
DEBT TO EBITDA APPLICABLE STANDBY
PRICING ADJUSTMENT FEE PRICING RATE
RATIO
< 2.0:1 15 bps
< 2.5:1 20 bps
< 3.0:1 25 bps
< 3.5:1 30 bps
< 4.0:1 35 bps
= or > 4.0:1 40 bps
Accrued Standby fees shall be due and payable on the first Business Day of each
Financial Quarter in respect of the immediately preceding Financial Quarter and
on the Maturity Date (or with respect to any applicable Lender, on such earlier
date as its Commitments are terminated).
1.32 AGENCY FEES
In consideration of the Administrative Agent acting as agent under the
Credit Documents, the Cdn. Borrower shall pay to the Administrative Agent an
agency fee in an amount, and on the terms and conditions, set out in any agency
fee letter from time to time entered into by the Administrative Agent and the
Cdn. Borrower, or as otherwise agreed to in writing from time to time by the
Administrative Agent and the Cdn. Borrower. All such written arrangements
between the Administrative Agent and the Cdn. Borrower shall constitute Credit
Documents.
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SECTION 4.01
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ARTICLE FOUR
REPAYMENT OF ACCOMMODATION
1.041 OPTIONAL REPAYMENT
(1) Each Borrower shall have the right to repay from time to time on any
Business Day (an "OPTIONAL REPAYMENT DATE") any Accommodation outstanding to
it, without premium but subject to Section 5.05, on the terms and conditions
that, except in the case of any repayments under an Operating Line which shall
be subject to arrangements from time to time entered into between the Cdn.
Borrower and the Cdn. Operating Lender and between the U.S. Borrower and each
of the U.S. Operating Lenders:
(a) such Borrower shall give to the Administrative Agent not less than 3
Business Days' irrevocable prior written notice (other than with
respect to repayments by way of renewal or conversions of
Accommodation which shall require the applicable notice for
Borrowings referred to in Section 2.04) specifying the amount and
the type of Accommodation to be repaid (which shall be the same type
from each applicable Lender), the Tranche under which such
Accommodation is outstanding, and the applicable Optional Repayment
Date;
(b) each repayment of Accommodation pursuant to this subsection shall be
allocated (as to both amount, type, and applicable maturity, of
Accommodation) to the Lenders under the applicable Tranche (or in
the case of Tranches 1, 2 and 3 under all of such Tranches) having
Commitments under such Tranche or Tranches, as the case may be, to
the Borrower making the repayment on a Rateable basis;
(c) the aggregate U.S. Dollar Amount of Accommodation repaid pursuant to
this subsection at any time shall be not less than U.S. $10,000,000
or an amount in excess of U.S. $10,000,000 which is a whole multiple
of U.S. $100,000 (or all Accommodation then outstanding under the
applicable Tranche, if lesser);
(d) no repayment of any LIBOR Loan shall be made otherwise than upon the
expiration of a LIBOR Period applicable to such LIBOR Loan and no
repayment of any Bankers' Acceptance or BA Equivalent Note shall be
made otherwise than on the maturity date of such Bankers' Acceptance
or BA Equivalent Note, as the case may be; and
(e) on the applicable Optional Repayment Date such Borrower shall repay
outstanding Accommodation in accordance with the notice given
pursuant to clause (a) above and for such purpose shall pay to the
Administrative Agent the
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SECTION 4.01
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amount of any Loans, Bankers' Acceptances and BA Equivalent Notes
included in such repayment together with all interest and other
fees and other amounts accrued and unpaid under this Agreement, and
any amounts payable under Section 5.05, with respect to any such
Accommodation that is repaid. For greater certainty, however, a
repayment of outstanding Accommodation under a Tranche pursuant to
this subsection shall not reduce the limit of such Tranche then in
effect and additional Accommodation may from time to time be
obtained by the Borrowers under such Tranche in accordance with and
subject to the applicable provisions of this Agreement.
(2) The Administrative Agent shall promptly notify the applicable Lenders
of any proposed repayment of Accommodation pursuant to subsection 4.01(1) and
the amount and type of such Accommodation to be repaid to each such Lender.
The amount received by the Administrative Agent in respect of any Loans,
Bankers' Acceptances and BA Equivalent Notes included in the repayment shall be
distributed by the Administrative Agent to the applicable Lenders on a Rateable
basis and any accrued and unpaid interest, fees and other amounts (other than
amounts payable under Section 5.05 which shall be for the account of the Lender
entitled to the same) received by the Administrative Agent with respect thereto
shall be distributed by the Administrative Agent to the applicable Lenders on
the basis of their respective entitlements thereto.
1.042 MANDATORY REPAYMENT
Each Borrower shall repay all Accommodation outstanding to it, together
with all accrued interest, fees and other amounts then unpaid by it with
respect to such Accommodation and the Credit, on the Maturity Date, and the
Credit and all of the Commitments shall be automatically terminated on the
Maturity Date.
1.043 SURPLUS ADDITIONAL DEBT AND COMMITMENTS
If:
(a) the Cdn. Borrower does not have an Investment Grade Rating on the
date that any Surplus Additional Debt and Commitments is assumed,
created or otherwise arises; or
(b) the Cdn. Borrower has an Investment Grade Rating on the date that
any Surplus Additional Debt and Commitments is assumed, created or
otherwise arises but loses such Investment Grade Rating within the
period of 90 days following such date;
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SECTION 4.03
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(the date on which such Surplus Additional Debt and Commitments is assumed,
created or otherwise arises as described in subsection (a) of this Section or
the date on which the Cdn. Borrower loses its Investment Grade Rating as
described in subsection (b) of this Section, whichever is applicable, being
referred to as the "ADDITIONAL DEBT CREDIT REDUCTION DATE"), the limit of the
Credit (on a pro rata basis among Tranches 1, 2 and 3 on the basis of the
aggregate Commitments under such Tranches until the limit of such Tranches is
reduced to 0 and thereafter on a pro rata basis among the remaining Tranches on
the basis of the aggregate Commitments under such Tranches), effective on such
Additional Debt Credit Reduction Date, will be permanently reduced by an amount
equal to 75% of the amount of such Surplus Additional Debt and Commitments so
assumed, created or otherwise arising and each of the Borrowers, within 5
Business Days of any such date referred to in subsection (a) of this Section
and within 15 Business Days of any such date referred to in subsection (b) of
this Section, will repay sufficient Accommodation under the affected Tranches
so that, after giving effect to such repayment and any concurrent repayments
made by the other Borrower, the U.S. Dollar Amount of the Accommodation then
outstanding under each such Tranche does not exceed the reduced limit of such
Tranche.
1.044 EXCESS PROPERTY SALES PROCEEDS
(1) On the Business Day following the date of the closing of any
Disposition, the Borrowers shall pay to the Administrative Agent (to be applied
on a Rateable basis to the Lenders under Tranches 1, 2 and 3 until all
Accommodation under such Tranches has been repaid and then on Rateable basis to
the Lenders under the remaining Tranches) an amount equal to that portion, if
any, of the Deemed Proceeds of Disposition Amount relative to such Disposition
which was not Reinvested in the Restricted Parties on the date of the closing
of such Disposition (provided that no such repayment shall reduce the limit of
the Credit).
(2) On the Anniversary of each Disposition the limit of the Credit (on a
pro rata basis among Tranches 1, 2 and 3 until the limit of such Tranches is
reduced to 0 and thereafter on a pro rata basis among the remaining Tranches)
will be permanently reduced by an amount equal to the Permanent Disposition
Reduction Amount, if any, relative to such Disposition and each of the
Borrowers will repay sufficient Accommodation under the affected Tranches so
that, after giving effect to such repayment and any concurrent repayments made
by the other Borrower, the U.S. Dollar Amount of the Accommodation then
outstanding under each such Tranche does not exceed the reduced limit of such
Tranche.
1.045 CURRENCY FLUCTUATIONS
If at any time the U.S. Dollar Amount of the Accommodation then
outstanding under any Tranche exceeds the limit of such Tranche then in effect,
each Borrower shall repay in accordance with subsection 4.01(1) within 10 days
of receipt of a demand for such repayment from the Administrative Agent such
Accommodation outstanding to it so that, after giving effect
90
SECTION 4.05
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to such repayment and any concurrent repayments made by the other Borrower, the
U.S. Dollar Amount of the Accommodation then outstanding under such Tranche
does not exceed the limit of such Tranche then in effect.
1.046 ILLEGALITY
Notwithstanding any other provision of this Agreement, if the making or
continuation of any type of Accommodation by any Lender, or the receipt by any
Lender of any amount payable under this Agreement by a Borrower in respect of
any such Accommodation, shall have been made unlawful or impracticable due to
compliance by such Lender in good faith (as determined by such Lender, which
determination shall be conclusive and binding) with any Applicable Law or with
any request or directive (whether or not having the force of law) by any
Governmental Authority (including any central bank, Superintendent of Financial
Institutions or other comparable authority or agency) having jurisdiction, such
Lender shall give notice of such event to such Borrower and the Administrative
Agent (which shall promptly give similar notice to the other Lenders) and:
(a) in the case of a LIBOR Loan, on the last day of the LIBOR Period
then applicable to such LIBOR Loan, or on such earlier date as may
be required by such event, the interest on such Loan shall cease to
be calculated under this Agreement on the basis of the LIBOR and
shall commence to be calculated under this Agreement on the basis
of:
(i) the U.S. Base Rate in the case of any such LIBOR Loan under
Tranche 1, the Cdn. Operating Line or any such LIBOR Loan
from a Cdn. Cross Border Lender under Tranche 2 and provided
that such Lender is then obliged to make U.S. Base Rate
Loans under this Agreement; or
(ii) the U.S. Reference Rate in the case of any such LIBOR Loan
under Tranche 3, or any such LIBOR Loan under either U.S.
Operating Line or any such LIBOR Loan from a U.S. Cross
Border Lender under Tranche 2;
(b) in the case of a U.S. Base Rate Loan or a U.S. Reference Rate Loan,
on such date thereafter as may be required by such Lender, the
interest on such Loan shall cease to be calculated under this
Agreement on the basis of the U.S. Base Rate or the U.S. Reference
Rate, as the case may be, and shall commence to be calculated under
this Agreement on the basis of the LIBOR (and such Borrower shall
select the term of each applicable LIBOR Period in accordance with
Section 3.05) (provided that such Lender is then obliged to make
LIBOR Loans under this Agreement); and
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SECTION 4.06
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(c) in any other case, such Borrower shall repay to such Lender all
Accommodation of such type on such date thereafter as may be
required by such Lender, and for such purpose shall be entitled to
obtain from such Lender any type of Accommodation that such Lender
is then obliged to make available under this Agreement in a U.S.
Dollar Amount equal to the U.S. Dollar Amount of the Accommodation
required to be repaid by it.
During the continuation of any such event such Lender shall have no obligation
under this Agreement to make available any Accommodation of such type, but
shall make available its pro rata share of each Borrowing by way of such other
type of Accommodation as it is then obliged to make available under this
Agreement that is requested by the applicable Borrower.
ARTICLE FIVE
PAYMENTS AND INDEMNITIES
1.051 METHOD AND PLACE OF PAYMENTS
(1) Each Lender (other than the Operating Lenders which shall make
arrangements directly with the applicable Borrowers respecting the advance of
proceeds of Accommodation under the Operating Lines) shall transfer for value
by 11:00 a.m. on each applicable Borrowing Date:
(a) immediately available Cdn. Dollars in an aggregate amount equal to:
(i) the amount of any Prime Rate Loan to be made
by it on such Borrowing Date; and
(ii) the amount of all BA Discount Proceeds in respect of any
Bankers' Acceptance or BA Equivalent Note purchased by it on
such Borrowing Date and the amount of all proceeds received
by it as contemplated by subsection 2.05(3) in respect of
any Bankers' Acceptance accepted by it and purchased by a
third party on such Borrowing Date, in each case net of the
related fee payable to such Lender pursuant to Section 3.09;
to the Administrative Agent's Cdn. Dollar Asset Distribution
Suspense Account in Canada, Account No. 09-21416, Transit No.
00002, Main Branch, Commerce Court, Toronto, Canada; and
(b) immediately available U.S. Dollars in an aggregate amount equal to
the amount of any U.S. Base Rate Loan and any LIBOR Loan from a Cdn.
Cross Border Lender
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SECTION 5.01
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or a Cdn. Only Lender to be made by it on such Borrowing Date to the
Agent's U.S. Dollar Asset Distribution Suspense
in Canada, Account No. 02-13616, Transit No. 00002, Main
Commerce Court, Toronto, Canada; and
(c) immediately available U.S. Dollars in an aggregate amount equal to
the amount of any U.S. Reference Rate Loan and any LIBOR Loan from a
U.S. Cross Border Lender or a U.S. Only Lender to be made by it on
such Borrowing Date to the Administrative Agent's account in the
United States of America, at Morgan Guaranty Trust Company of New
York in New York, New York, ABA 021-000-238 for further credit to
the account of CIBC New York Agency, Account No. 630-004-80 for
further credit to agented loans, Account No. 07-09611 - Attention
Agency Services - Reference Philip.
Provided that no costs in excess of costs associated with a transfer to the
accounts specified in the preceding sentence would be incurred by the Borrowers
or any of the Lenders, the Administrative Agent may designate such other
accounts and offices as it may see fit for the purposes referred to in the
preceding sentence. Subject to any direction given to the Administrative Agent
by the applicable Borrower, the Administrative Agent shall make all such
amounts received by it from the Lenders as aforesaid available to the
applicable Borrower by depositing the same for value on the applicable
Borrowing Date (a) in the case of the Cdn. Borrower to such account in Canada
in the name of such Borrower as such Borrower shall have previously designated
by timely notice in writing to the Administrative Agent, and (b) in the case of
the U.S. Borrower, to such account in the United States of America as such
Borrower shall have previously designated by timely notice in writing to the
Administrative Agent.
(2) Notwithstanding subsection 5.01(1), the Administrative Agent shall be
entitled to assume that each Lender has made or will make available to the
Administrative Agent all funds required to be made available by such Lender as
specified in subsection 5.01(1), and the Administrative Agent may (but shall
not be obliged to), in reliance upon such assumption, make available to the
applicable Borrower a corresponding amount. If such funds are in fact not
received by the Administrative Agent from such Lender on any Borrowing Date and
the Administrative Agent has made available the corresponding amount to the
applicable Borrower on such Borrowing Date, such corresponding amount shall not
be a Loan or the proceeds of any Bankers' Acceptances or BA Equivalent Note
made available or purchased by such Lender to or from such Borrower and the
Administrative Agent shall be entitled (in its capacity as Administrative
Agent) to recover from such Borrower, on demand, the corresponding amount made
available by the Administrative Agent to such Borrower as aforesaid together
with interest on such amount at the rate applicable under this Agreement to
Prime Rate Loans, if such amount is in Cdn. Dollars, or U.S. Base Rate Loans,
if such amount is in U.S. Dollars and was made available to the Cdn. Borrower,
or U.S. Reference Rate Loans, if such amount was made available to the U.S.
Borrower. If, after the applicable Borrowing Date but prior to such time as
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SECTION 5.01
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the Administrative Agent has demanded repayment from a Borrower as permitted by
the preceding sentence, the funds required to be made available by the
applicable Lender are in fact received by the Administrative Agent, the
Administrative Agent shall be entitled to retain such funds for its own account
and the corresponding amount made available by the Administrative Agent to such
Borrower on such Borrowing Date shall, notwithstanding the preceding sentence,
be deemed to have been a Loan or the proceeds of Bankers' Acceptances or a BA
Equivalent Note, as the case may be, made available by such Lender to such
Borrower on such Borrowing Date and such Lender shall pay to the Administrative
Agent on demand, as reimbursement for expenses incurred by the Administrative
Agent, an amount equal to the product of (i) the standard interbank reference
rate then in effect in Canada (with respect to such amounts made available by
any Cdn. Only Lender or any Cdn. Cross Border Lender) or in the United States
of America (with respect to such amounts made available by any U.S. Only Lender
or any U.S. Cross Border Lender) multiplied by (ii) the corresponding amount
made available by the Administrative Agent, multiplied by (iii) a fraction, the
numerator of which is the number of days that have elapsed from and including
such Borrowing Date to the date on which such funds are received by the
Administrative Agent from such Lender and the denominator of which is the
number of days in the calendar year in which the same is to be determined. A
certificate of the Administrative Agent with respect to any amount owing by a
Lender under this subsection shall be binding and conclusive in the absence of
manifest error.
(3) The Cdn. Borrower undertakes at all times that any Accommodation is
outstanding to it or any other amount is owed by it under any Credit Document
to maintain at the Administrative Agent's Cdn. Payment Branch an account in
Cdn. Dollars and an account in U.S. Dollars which the Administrative Agent
shall be entitled to debit with such amounts as are from time to time required
to be paid by such Borrower under the Credit Documents, as and when such
amounts are due, and that each such account will contain sufficient funds for
such purpose. All payments by the Cdn. Borrower under the Credit Documents
(except for payments prior to the Maturity Date to the Cdn. Operating Lender
under the Cdn. Operating Line which shall be made directly to the Cdn.
Operating Lender in accordance with arrangements entered into between the Cdn.
Borrower and the Cdn. Operating Lender from time to time), unless otherwise
expressly provided in such Credit Document, shall be made to the Administrative
Agent at the Administrative Agent's Cdn. Payment Branch for the Rateable
account of the Lenders entitled to such payment not later than 12:00 noon for
value on the date when due, and shall be made in immediately available funds
without set-off or counterclaim. All payments by the U.S. Borrower under the
Credit Documents (except for payments prior to the Maturity Date to a U.S.
Operating Lender under a U.S. Operating Line which shall be made directly to
such U.S. Operating Lender in accordance with arrangements entered into between
the U.S. Borrower and such U.S. Operating Lender from time to time), unless
otherwise expressly provided in such Credit Document, shall be made to the
Administrative Agent at the Administrative Agent's U.S. Payment Branch for the
Rateable account of the Lenders entitled to such payment not later than 12:00
noon for value on the date when due, and shall be made in immediately available
funds without set-off or counterclaim. Unless the Administrative Agent shall
have been notified by a
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SECTION 5.01
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Borrower not later than the Business Day prior to the date on which any payment
to be made by such Borrower under a Credit Document is due that such Borrower
does not intend to remit such payment, the Administrative Agent shall be
entitled to assume that such Borrower has remitted or will remit such payment
when so due and the Administrative Agent may (but shall not be obliged to), in
reliance upon such assumption, make available to each applicable Lender on such
payment date an amount equal to such Lender's Rateable share of such assumed
payment. If such Borrower does not in fact remit such payment to the
Administrative Agent as required by the Credit Documents, each applicable
Lender shall immediately repay to the Administrative Agent on demand the amount
so made available to such Lender, together with interest on such amount at the
interbank reference rate then in effect in Canada (with respect to amounts paid
to the Cdn. Only Lenders, the Cdn. Operating Lender, the Cdn. LC Lenders or the
Cdn. Cross Border Lenders) or in the United States of America (with respect to
amounts paid to the U.S. Only Lenders, the U.S. Operating Lenders, the U.S.
Cross Border Lenders or the U.S. LC Lenders) in respect of each day from and
including the date such amount was made available by the Administrative Agent
to such Lender to the date such amount is repaid in immediately available funds
to the Administrative Agent, and such Borrower shall immediately pay to the
Administrative Agent on demand such amounts as are sufficient to compensate the
Administrative Agent and the Lenders for all costs and expenses (including,
without limitation, any interest paid to lenders of funds) which the
Administrative Agent may sustain in making any such amounts available to the
Lenders or which any Lender may sustain in receiving any such amount from and
in repaying any such amount to the Administrative Agent or in compensating the
Administrative Agent as aforesaid. A certificate of the Administrative Agent
as to any amounts payable by a Borrower pursuant to the preceding sentence and
containing reasonable details of the calculation of such amounts shall be,
absent manifest error, prima facie evidence of the amounts so payable. If any
amount which has been received by the Administrative Agent not later than 12:00
noon on any Business Day as provided above is not paid by the Administrative
Agent to a Lender on such Business Day as required under this Agreement, the
Administrative Agent shall immediately pay to such Lender on demand interest on
such amount at the interbank reference rate then in effect in Canada (with
respect to amounts payable to the Cdn. Only Lenders, the Cdn. Operating Lender,
the Cdn. LC Lenders or the Cdn. Cross Border Lenders) or in the United States
of America (with respect to amounts payable to the U.S. Only Lenders, the U.S.
Operating Lenders, the U.S. Cross Border Lenders or the U.S. LC Lenders) in
respect of each day from and including the day such amount was required to be
paid by the Administrative Agent to such Lender to the day such amount is so
paid.
1.052 CURRENCY OF PAYMENT
Accommodation shall be repaid by each Borrower as required under this
Agreement in the currency in which such Accommodation was obtained by such
Borrower. Any payment on account of an amount payable under any Credit
Document in a particular currency (the "PROPER CURRENCY") made to or for the
account of the Administrative Agent, an Other Agent or a Lender in a currency
(the "OTHER CURRENCY") other than the proper currency, whether pursuant to a
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judgement or order of any court or tribunal or otherwise and whether arising
from the conversion of any amount denominated in one currency into any other
currency for the purpose of making or filing a claim, obtaining an order or
judgement, enforcing an order or judgement or otherwise, shall constitute a
discharge of the applicable Borrower's obligation under such Credit Document
only to the extent of the amount of the proper currency which the
Administrative Agent, such Other Agent or such Lender is able, in the normal
course of its business within one Business Day after receipt by it of such
payment, to purchase with the amount of the other currency so received. If the
amount of the proper currency which the Administrative Agent, such Other Agent
or such Lender is so able to purchase is less than the amount of the proper
currency originally due to it under such Credit Document, such Borrower shall
indemnify and save the Administrative Agent, such Other Agent or such Lender,
as the case may be, harmless from and against any loss or damage arising as a
result of such deficiency. This indemnity shall constitute an obligation
separate and independent from any other obligation contained in any Credit
Document, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Administrative Agent, any
Other Agent or any Lender from time to time, shall continue in full force and
effect notwithstanding any judgement or order for a liquidated sum in respect
of an amount due under any Credit Document or under any judgement or order and
shall not merge in any order of foreclosure made in respect of any Security or
other security given to or for the benefit of the Administrative Agent, the
Other Agents and the Lenders.
1.053 TAXES
(1) All payments by a Borrower under the Credit Documents shall be made
free and clear of, and without reduction for or on account of, any present or
future income, capital, large corporations, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings of any kind or
nature whatsoever or any installments, interest or penalties payable with
respect thereto now or in the future imposed, levied, collected, withheld or
assessed by any country or any political subdivision of any country
(collectively "TAXES"); provided, however, that subject to subsection 5.03(2),
if any Taxes which are not Excluded Taxes are required by Applicable Law to be
withheld from any interest or other amount payable to the Administrative Agent,
any Other Agent or any Lender under any Credit Document, the amount so payable
to the Administrative Agent, such Other Agent or such Lender shall be increased
to the extent necessary to yield to the Administrative Agent, such Other Agent
or such Lender, on a net basis after payment of all Taxes other than Excluded
Taxes (including all Taxes other than Excluded Taxes imposed on any additional
amounts payable under this subsection) and after payment of all Excluded Taxes
imposed by any relevant jurisdiction on any additional amounts payable under
this subsection, interest or any such other amount payable under such Credit
Document at the rate or in the amount specified in such Credit Document. Each
Borrower shall be fully liable and responsible for and shall, promptly
following receipt of a request from the Administrative Agent, pay to the
Administrative Agent any and all sales, goods and services and harmonized sales
and goods and services taxes payable under the laws of Canada, any Province of
Canada, the United
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States of America, any State of the United States of America or any other
country or jurisdiction with respect to any and all goods and services made
available under the Credit Documents to such Borrower by the Administrative
Agent, the Other Agents and the Lenders, and such taxes shall be included in
the definition of "Taxes" for all purposes of this Agreement. Whenever any
Taxes are payable by a Borrower, as promptly as possible thereafter it shall
send to the Administrative Agent, for the account of the Administrative Agent
and each affected Other Agent and Lender, a certified copy of an original
official receipt showing payment of such Taxes. If a Borrower fails to pay any
Taxes when due or if a Borrower fails to remit to the Administrative Agent the
required documentary evidence of such payment, such Borrower shall indemnify
and save harmless the Administrative Agent, the Other Agents and the Lenders
from any incremental taxes, interest, penalties or other liabilities that may
become payable by the Administrative Agent, by any Other Agent or by any Lender
or to which the Administrative Agent, any Other Agent or any Lender may be
subjected as a result of any such failure. A certificate of the Administrative
Agent, any Other Agent or any Lender as to the amount of any such taxes,
interest or penalties and containing reasonable details of the calculation of
such taxes, interest or penalties shall be, absent manifest error, prima facie
evidence of the amount of such taxes, interest or penalties, as the case may
be.
(2) If a Borrower makes any payment to any Lender pursuant to subsection
5.03(1) and such Lender shall receive any tax benefit which it would not have
received if there had been no such payment, such Lender agrees to pay to such
Borrower the amount of such tax benefit (to a maximum of the payment made by
such Borrower) after the same has been obtained; provided, however, that (i)
this subsection shall place such Lender in no worse position than it would have
been if such Borrower had not been required to make such payment; (ii) no Event
of Default shall have occurred and be continuing; and (iii) any subsequent
disallowance, elimination, reduction, deferral, disqualification or recapture
of all or any part of a tax benefit of a Lender for which a payment by such
Lender to a Borrower has been made (or is due) pursuant to this subsection
shall be treated as a Tax subject to indemnification hereunder. Each Lender
shall have sole discretion as to whether or not it will seek any tax benefit
and as to the allocation of its income, and no Lender shall be obliged to
disclose any information to any Borrower regarding its income or taxes.
(3) Each U.S. Only Lender, U.S. Cross Border Lender, U.S. Operating Lender
and U.S. LC Lender (collectively the "U.S. LENDERS") that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code) for
U.S. Federal income tax purposes agrees to deliver to the U.S. Borrower and the
Administrative Agent on or prior to the Closing Date, or in the case of a
Lender that is an assignee or transferee of an interest of a U.S. Lender under
this Agreement pursuant to Section 12.01 (unless the respective Lender was
already a U.S. Lender immediately prior to such assignment or transfer) or
otherwise becomes a U.S. Lender after the Closing Date, on the date of such
assignment or transfer to such Lender or the date on which such Lender becomes
a U.S. Lender, as the case may be:
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(a) two accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such
Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this
Agreement; or
(b) if the Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 4224 or 1001 pursuant to paragraph (a) above:
(i) a certificate substantially in the form of Schedule 15 (any
such certificate being a "NON-BANK CERTIFICATE"); and
(ii) two accurate and complete original signed copies of Internal
Revenue service Form W-8 (or successor form) certifying to
such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments of interest
to be made under this Agreement.
In addition, each U.S. Lender agrees that from time to time after the Closing
Date or after such Lender becomes a U.S. Lender (whether because of an
assignment or transfer or otherwise), when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to the U.S. Borrower and the Administrative
Agent two new accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001, or Form W-8 and a Non-Bank Certificate, as the case
may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments under this
Agreement, or it shall immediately notify the U.S. Borrower and the
Administrative Agent of its inability to deliver any such Form or Certificate,
in which case such U.S. Lender shall not be required to deliver any such Form
or Certificate pursuant to this subsection. Notwithstanding anything to the
contrary contained in subsection 5.03(1), but subject to the last sentence of
this subsection:
(c) the U.S. Borrower shall be entitled, to the extent it is required to
do so by Applicable Law, to deduct or withhold income or similar
Taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other
amounts payable under this Agreement for the account of any U.S.
Lender which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for U.S. Federal income tax
purposes to the extent that such Lender has not provided to the U.S
Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding; and
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(d) the U.S. Borrower shall not be obligated pursuant to subsection
5.03(1) to gross-up payments to be made to a U.S. Lender in respect
of income or similar Taxes imposed by the United States if (i) such
Lender has not provided to the U.S. Borrower the Internal Revenue
Service Forms required to be provided to the U.S. Borrower pursuant
to this subsection or (ii) in the case of a payment, other than
interest, to a U.S. Lender described in paragraph (b) above, to the
extent that such Forms do not establish a complete exemption from
withholding of such Taxes.
Notwithstanding anything to the contrary contained in the preceding sentence or
elsewhere in this Section, the U.S. Borrower agrees to pay any additional
amounts and to indemnity each U.S. Lender in the manner set forth in subsection
5.03(1) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any Taxes deducted or withheld by it as
described in the immediately preceding sentence as a result of any changes
after the Closing Date in any Applicable Law, or in the interpretation thereof,
relating to the deducting or withholding of such Taxes.
1.054 INCREASED COSTS
If subsequent to the date of this Agreement any change in or introduction
of any Applicable Law or of any administrative policy or practice of any
Governmental Authority, or compliance by any Lender with any request or
directive (whether or not having the force of law) by any Governmental
Authority (including any central bank, Superintendent of Financial Institutions
or other comparable authority or agency) having jurisdiction shall:
(a) subject the Administrative Agent, such Other Agent or such Lender to
any Tax of any kind whatsoever including Excluded Taxes with respect
to this Agreement or any other Credit Document, any Commitment or
any Accommodation made by such Lender, or change the basis of
taxation of payments to the Administrative Agent, such Other Agent
or such Lender of principal, interest, fees or any other amount
payable under any Credit Document (except for changes in the rate of
Tax on the overall net income of the Administrative Agent, such
Other Agent or such Lender imposed by its jurisdiction of
incorporation, the jurisdiction of its principal office or
applicable lending office, or any political subdivision of any such
jurisdiction);
(b) impose, modify or make applicable any capital maintenance or capital
adequacy requirement, reserve requirement, special deposit
requirement or other similar requirement against assets held by, or
deposits or other liabilities in or for the account of, or any
Accommodation or Commitment made available or established by, or any
other acquisition of funds by, such Lender; or
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(c) impose on the Administrative Agent, such Other Agent or such Lender
or the London interbank market any other condition, restriction or
limitation;
and the result of any of the foregoing is to increase the cost to the
Administrative Agent, such Other Agent or such Lender of making or maintaining
any Accommodation or Commitment or to reduce any amount otherwise receivable by
it under this Agreement or any other Credit Document with respect to any
Accommodation or Commitment or otherwise, then provided that such additional
cost or reduced amount receivable is not fully offset at all relevant times by
an increase in the applicable interest rate or rates or fees under this
Agreement or other applicable Credit Document, the Borrowers (or each
applicable Borrower in the case of any Commitment to, or any Accommodation
outstanding to, such Borrower) shall promptly pay to the Administrative Agent,
such Other Agent or such Lender, upon demand, such additional amounts necessary
to compensate the Administrative Agent, such Other Agent or such Lender, after
taking into account all applicable Taxes and Excluded Taxes, for such
additional cost or reduced amount receivable which the Administrative Agent,
such Other Agent or such Lender deems to be material as are determined in good
faith by the Administrative Agent, such Other Agent or such Lender. If the
Administrative Agent, an Other Agent or a Lender becomes entitled to claim any
additional amount pursuant to this Section, it shall notify the Borrowers,
through the Administrative Agent, of the event by reason of which it has become
so entitled promptly upon the Administrative Agent, such Other Agent or such
Lender becoming aware of such event. A certificate of the Administrative
Agent, an Other Agent or a Lender as to any such additional amount payable to
it and containing reasonable details of the calculation of such amount shall
be, absent manifest error, prima facie evidence of such amount.
1.055 INDEMNITIES
(1) Each Borrower shall indemnify and save harmless the Administrative
Agent, each Other Agent and each Lender from all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including the reasonable fees and
expenses of counsel for the Administrative Agent, the Other Agents and the
Lenders), including any loss or expense arising from interest or fees payable
by the Administrative Agent, such Other Agent or such Lender to lenders of
funds obtained by it in order to make or maintain any Accommodation and any
loss or expense incurred in liquidating or re-employing deposits from which
such funds were obtained, which may be incurred by the Administrative Agent,
such Other Agent or such Lender as a consequence of (i) default by such
Borrower in the payment when due of any amount payable under any Credit
Document, (ii) default by such Borrower in obtaining a Borrowing on the date
specified in any applicable notice relative to such Borrowing after such
Borrower has given such notice under this Agreement that it desires to obtain
such Borrowing, (iii) default by such Borrower in making any optional repayment
of outstanding Accommodation after such Borrower has given notice under this
Agreement that it desires to make such repayment, (iv) the repayment by such
Borrower of any LIBOR Loan otherwise than on the expiration of any applicable
LIBOR Period or the repayment of any other Accommodation otherwise than on the
maturity date of
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such Accommodation (including without limitation any such payment pursuant to
any of the provisions of Article Four or upon acceleration pursuant to Section
9.02), (v) the entering into by the Administrative Agent, such Other Agent or
such Lender of this Agreement and the other Credit Documents to which the
Administrative Agent, such Other Agent or such Lender is a party and any
amendment, waiver or consent relating hereto or thereto, and, otherwise than
are determined by a court of competent jurisdiction to be attributable
primarily to the gross negligence or wilful misconduct of the Administrative
Agent, such Other Agent or such Lender, the performance by the Administrative
Agent, such Other Agent or such Lender of its obligations under this Agreement
and the other Credit Documents, and (vi) the application by any Borrower of any
Accommodation or any proceeds of any Accommodation. A certificate of the
Administrative Agent, an Other Agent or any Lender as to any such loss or
expense and containing reasonable details of the calculation of such loss or
expense shall be, absent manifest error, prima facie evidence of the amount of
such loss or expense, as the case may be.
(2) The Borrowers shall indemnify and save harmless each LC Lender from
all claims, demands, liabilities, damages, losses, costs, charges and expenses
which may be asserted against or incurred by such LC Lender, otherwise than as
are determined by a court of competent jurisdiction to be attributable
primarily to the gross negligence or wilful misconduct of such LC Lender, as a
direct or indirect consequence of the issuance or renewal of any Letter of
Credit at the request of such Borrower or of any failure by any LC Issuer to
make any payment under any Letter of Credit issued at the request of such
Borrower as a result of any law, control or restriction rightfully or
wrongfully exercised or imposed by any Governmental Authority.
(3) Each Borrower shall indemnify and save harmless the Administrative
Agent, each Other Agent and each Lender and their respective Affiliates,
agents, officers, directors and employees (each an "INDEMNIFIED PARTY") from
all claims, demands, liabilities, damages, losses, costs, charges and expenses
(including without limitation any investigatory, remedial, clean-up, compliance
or preventative costs, charges and expenses) which may be asserted against or
incurred by such Indemnified Party, otherwise than as are determined by a court
of competent jurisdiction to be attributable primarily to the gross negligence
or wilful misconduct of such Indemnified Party, whether upon realization of the
Security, or as a lender to the Cdn. Borrower or the U.S. Borrower, or as
successor to or assignee of any right or interest of the applicable Borrower,
or any of the Cdn. Borrower's Subsidiaries or as a result of any order,
investigation or action by any Governmental Authority relating to any one of
its or their business or property, or as mortgagee in possession or successor
or successor-in-interest to any one of the Borrowers, their respective
Subsidiaries, or as a result of any taking of possession of all or any real
property by foreclosure, deed or deed in lieu of foreclosure or by any other
means relating to the Borrowers, or any of their Subsidiaries under or on
account of any applicable Environmental Law, (including the assertion of any
Lien thereunder) with respect to:
(a) the Release of a Contaminant, the threat of the Release of any
Contaminant, or the presence of any Contaminant affecting the real
or personal property of a Borrower
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or any of its Subsidiaries, whether or not the Contaminant
or emanates from a Borrower's property or any other
property or personal property located thereon (unless such
property or property is under the control of a Lender due to
relationship with a third party), including any loss of value
the property of a Borrower or any of its Subsidiaries as a
result of any of the foregoing;
(b) the Release of a Contaminant owned by, or under the charge,
management or control of, a Borrower or any of its Subsidiaries or
any predecessors or assignors thereof;
(c) any costs of removal or remedial action incurred by any Governmental
Authority or any costs incurred by any other Person or damages from
injury to, destruction of, or loss of natural resources in relation
to, the real property or personal property of a Borrower or any of
its Subsidiaries or any contiguous real property or elsewhere or
personal property located thereon, including reasonable costs of
assessing such injury, destruction or loss incurred pursuant to
Environmental Law;
(d) liability for personal injury or property damage arising by reason
of any civil law offenses or quasi-criminal offenses or under any
statutory or common tort law theory and any and all other third
party claims of any and every nature whatsoever, including, without
limitation, damages assessed for the maintenance of a public or
private nuisance or for the carrying on of a dangerous activity at,
near, or with respect to the real or personal property of a
Borrower, or any of its Subsidiaries or elsewhere; and/or
(e) any other matter relating to the Natural Environment and
Environmental Law affecting the property or the operations and
activities of a Borrower or any of its Subsidiaries within the
jurisdiction of any Governmental Authority.
The Borrowers' obligations shall arise both on the discovery of the
presence of any Contaminant that has not been dealt with in accordance
with Environmental Law and shall also arise where any Governmental
Authority has taken or threatened any action in connection with the
presence of, or any Environmental Activity respecting, any Contaminant.
Each Borrower acknowledges that the Lenders have agreed to make the
Credit available in reliance on the Borrowers' representations,
warranties and covenants, including the delivery of this indemnity. This
indemnity supersedes any other provisions of this Agreement or any other
Credit Document which in any way limits the liability of a Borrower. The
obligations of the Borrowers arising under this indemnity will be
absolute and unconditional and shall not be affected by any act,
omission, or circumstances whatsoever, whether or not occasioned by the
fault of the Administrative Agent, the Other Agents or the Lenders except
as determined by a court of competent jurisdiction to
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be primarily due to gross negligence or wilful misconduct of the
Administrative Agent, the Other Agents or the Lenders. The foregoing
indemnities will survive the Disposition of any or all right, title and
interest in and to the real property and personal property of the
Restricted Parties and their Subsidiaries to any Person, including,
without limitation, whether or not affiliated with the Restricted Parties
and their Subsidiaries.
ARTICLE SIX
SECURITY
1.061 FORM OF SECURITY
As general and continuing security for the due payment and performance of
all present and future indebtedness and liability of the Borrowers to (x) the
Administrative Agent, the Other Agents and the Lenders under the Credit
Documents, and (y) the Administrative Agent, the Other Agents, the Lenders and
their respective Eligible Affiliates under all Lender/Borrower Hedging
Arrangements, the following security (collectively the "SECURITY") will be
provided to the Administrative Agent on behalf of the Administrative Agent, the
Other Agents, the Lenders and their respective Eligible Affiliates:
(a) a first specific hypothecation and pledge of all of the issued and
outstanding securities now or hereafter held by either of the
Borrowers in any and all of their Subsidiaries which are Material
Restricted Parties, whether wholly or partially owned, acknowledged
by such Subsidiaries, together with such resolutions and consents as
the Administrative Agent may determine are legally required or
advisable and the security certificates duly issued by each of such
Subsidiaries evidencing such pledge of securities duly endorsed in
blank for transfer;
(b) an unlimited guarantee and postponement of claim by each Borrower
whereby it guarantees to (x) the Administrative Agent, the Other
Agents and the Lenders the due payment and performance of all
present and future indebtedness and liability owing under the Credit
Documents by the other Borrower and (y) the Administrative Agent,
the Other Agents, the Lenders and their respective Eligible
Affiliates the due payment and performance of all present and future
indebtedness and liability owing under the Lender/Borrower Hedging
Arrangements by the other Borrower;
(c) an unlimited guarantee and postponement of claim by each Restricted
Subsidiary (other than Phencorp International Finance Inc.) whereby
it guarantees (x) to the Administrative Agent and the Lenders the
due payment and performance of all present and future indebtedness
and liability now or in the future owing under the
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Credit Documents by the Borrowers (or if agreed to by the
Administrative Agent by either one of the Borrowers) (including any
indebtedness or liability of the Borrowers pursuant to the
guarantees referred to in subsection 6.01(b)) and (y) the
Administrative Agent, the Other Agents, the Lenders and their
respective Eligible Affiliates the due payment and performance
of all present and future indebtedness and liability owing under the
Lender/Borrower Hedging Arrangements by the Borrowers (or if agreed
to by the Administrative Agent by either one of the Borrowers);
(d) a first specific hypothecation and pledge of all of the issued and
outstanding securities now or hereafter held by any of the
Restricted Subsidiaries in any and all of their respective
Subsidiaries which are Material Restricted Parties, whether wholly
or partially owned, acknowledged by such Subsidiaries, together with
such resolutions and consents as the Administrative Agent may
determine are legally required or advisable and the security
certificates duly issued by each of such Subsidiaries evidencing
such pledge of securities duly endorsed in blank for transfer; and
(e) a postponement and subordination from Phencorp International Finance
Inc. subordinating all debts and liabilities owing to it by the
Restricted Parties to all debts and liabilities owing to the
Administrative Agent, the Other Agents, the Lenders and their
respective Eligible Affiliates by the Restricted Parties under or in
respect of the Credit Documents and the Lender/Borrower Hedging
Arrangements.
For convenience, Schedule 16 lists all Restricted Parties which are required to
deliver securities pledge agreements and a description of all securities, and
all issuers of such securities, to be pledged to the Administrative Agent by
each such Restricted Party.
1.062 SATISFACTORY TO ADMINISTRATIVE AGENT
The Security will be in such form or forms, and will be registered in such
jurisdictions, as the Administrative Agent and its legal counsel may from time
to time reasonably require.
1.063 GENERAL PROVISIONS RELATING TO THE SECURITY
Nothing in this Agreement or in any Security now held or acquired in the
future by or on behalf of the Administrative Agent, the Other Agents or the
Lenders, nor any act or omission of the Administrative Agent, any Other Agent
or any of the Lenders with respect to any such Security, will in any way
prejudice or affect the rights, remedies or powers of the Administrative Agent,
any Other Agent or any of the Lenders with respect to any other Security at any
time held by or on behalf of the Administrative Agent, the Other Agents or the
Lenders.
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1.064 REGISTRATION
The Administrative Agent may, at the reasonable expense of the Borrowers,
register, file or record the Security or notices in respect of the Security in
all offices where such registration, filing or recording is, in the opinion of
the Administrative Agent or its counsel, necessary or of advantage to the
creation, perfection and preservation of the Liens arising pursuant to the
Security. The Administrative Agent may, at the Borrowers' reasonable expense,
renew such registrations, filings and recordings from time to time as and when
required to keep them in full force and effect. The Borrowers acknowledge that
the forms of Security have been prepared based upon Applicable Law in effect at
the date of execution of the Security and that such laws may change, and that
the laws of other jurisdictions may require the execution and delivery of
different forms of security instruments in order to grant to the Administrative
Agent, the Other Agents, the Lenders and their respective Eligible Affiliates
the rights intended to be granted by the Security. The Borrowers will, and
will cause the other Restricted Parties to, on request from the Administrative
Agent from time to time, execute and deliver to the Administrative Agent such
additional security instruments and will amend or supplement, and will cause
the other Restricted Parties to amend or supplement, any Security theretofore
provided to the Administrative Agent:
(a) to reflect any changes in such laws, whether arising as a result of
statutory amendments, court decisions or otherwise;
(b) to facilitate the registration of appropriate forms of
Security in all appropriate jurisdictions; or
(c) if any Person having delivered Security amalgamates or merges with
any other Person or enters into any corporate reorganization;
in each case in order to confer upon the Administrative Agent, the Other
Agents, the Lenders and their respective Eligible Affiliates such Liens with
such priority as are intended to be created by the Security. The Borrowers
will pay or indemnify the Administrative Agent, the Other Agents, the Lenders
and their respective Eligible Affiliates against any and all stamp duties,
registration fees and similar taxes or charges which may be payable or
determined to be payable in connection with the execution, delivery,
performance, registration or enforcement of any Credit Document or any of the
transactions contemplated by any Credit Document.
1.065 RELEASE OF SECURITY
Following termination of all of the Commitments and the due payment in
full of all debts, obligations and liabilities of the Restricted Parties to the
Administrative Agent, the Lenders and the Other Agents under or in respect of
the Credit Documents, the Administrative Agent will, at
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the cost and expense of the Cdn. Borrower, release and discharge the Restricted
Parties and their property from the Security.
ARTICLE SEVEN
REPRESENTATIONS AND WARRANTIES
1.071 DELIVERY OF REPRESENTATIONS AND WARRANTIES
Each Borrower (with respect to itself only) and the Cdn. Borrower (with
respect to itself and the other Restricted Parties and other Subsidiaries)
represents and warrants to the Administrative Agent, the Other Agents and each
of the Lenders as follows:
(a) each of the Restricted Parties has been duly incorporated,
amalgamated, merged or continued, as the case may be, and is validly
subsisting as a corporation under the laws of its jurisdiction of
incorporation, amalgamation, merger or continuance, as the case may
be, (or in the case of Restricted Parties which are not corporations
has been duly created or established as a partnership or other
applicable entity and validly exists under and is governed by the
law of the jurisdiction in which it has been created or established)
and is duly qualified to carry on its business in each jurisdiction
in which the nature of its business requires qualification except to
the extent that any such failures to be so qualified individually or
in the aggregate do not have, and do not have any reasonable
likelihood of having, a Material Adverse Effect;
(b) each of the Restricted Parties has the power and authority to enter
into and perform its obligations under the Credit Documents to which
it is a party and all other instruments and agreements delivered
pursuant to any of the Credit Documents and to own its property and
carry on its business as currently conducted;
(c) the execution, delivery and performance of the Credit Documents and
every other instrument or agreement delivered pursuant to the Credit
Documents has been duly authorized by all requisite action and each
of such documents has been duly executed and delivered and
constitutes a valid and binding obligation of each of the Restricted
Parties, as the case may be, enforceable in accordance with its
terms subject to (x) applicable bankruptcy, insolvency, moratorium
and similar laws at the time in effect affecting the rights of
creditors generally, and (y) equitable remedies such as injunctions
and specific performance which may only be granted in the discretion
of the court before which they are sought;
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(d) none of the Restricted Parties is a party to any agreement or
instrument which has, or has any reasonable likelihood of having, a
Material Adverse Effect;
(e) none of the Restricted Parties is subject to any judgment, order,
writ, injunction, decree or award, or to any restriction, rule or
regulation (other than customary or ordinary course restrictions,
rules and regulations consistent or similar with those imposed on
other Persons engaged in similar businesses) which has a Material
Adverse Effect, or in the future may have a Material Adverse Effect;
(f) none of the Restricted Parties is in default under any guarantee,
bond, debenture, note or other instrument evidencing any
indebtedness or under the terms of any instrument pursuant to which
any of the foregoing has been issued or made and delivered in the
aggregate for all Restricted Parties in excess of U.S. $10,000,000
(or the Equivalent Amount in any other currency or currencies), and
there exists no state of facts which after notice or lapse of time
or both or otherwise would constitute such a default;
(g) except as disclosed on Schedule 17 or 19 or with respect to matters
not individually in excess of U.S. $10,000,000 (or the Equivalent
Amount in any other currency or currencies) or in an aggregate
amount which if all such actions were successful would have any
reasonable likelihood of having a Material Adverse Effect, there are
no actions, suits or proceedings pending or threatened against or
affecting any of the Restricted Parties at law or in equity or
before or by any Governmental Authority of any kind nor are any of
the Restricted Parties aware of any existing ground on which any
such action, suit or proceeding might be commenced with any
reasonable likelihood of success; and there have been no material
adverse developments since the date of this Agreement respecting any
of the matters disclosed on Schedules 17 or 19; and no Restricted
Party is in default with respect to any judgment, order, writ,
injunction, decree, award, rule or regulation of any court,
arbitrator or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, which, either
separately or in the aggregate, would represent an amount in excess
of U.S. $5,000,000 (or the Equivalent Amount in any other currency
or currencies);
(h) the Cdn. Borrower has furnished the Administrative Agent with its
most recent annual and quarterly consolidated financial statements;
all such financial statements have been prepared in accordance with
GAAP, except as stated in such financial statements or in the notes
to such financial statements; each balance sheet contained in such
financial statements, when read with the deconsolidation and
reconciliation accompanying such financial statements, presents
fairly the Modified Consolidated financial position of the Cdn.
Borrower as at the date of such balance sheet; and each statement of
profit and loss contained in such
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financial statements when read with the deconsolidation and
reconciliation accompanying such financial statements, presents
fairly the Modified Consolidated results of the Cdn. Borrower's
operations for the periods indicated; the Cdn. Borrower has also
furnished the Administrative Agent with the Pro Forma Financial
Statements and such Pro Forma Financial Statements have been, and
on delivery of the same the June 30 Pro Forma Financial Statements
will have been, prepared in accordance with GAAP, expressly state
all of the underlying assumptions on which they have been prepared
all of which assumptions are reasonable in the circumstances, and
constitute a reasonably true and accurate description of the combined
financial position and financial performance of the Restricted
Parties (including all Acquisitions made on or prior July 31, 1997)
as of the date of, and for the financial period ending on the date
of, such Pro Forma Financial Statements;
(i) since December 31, 1996, (x) there has been no change in the
Modified Consolidated financial condition of the Restricted Parties
as shown on the balance sheet of the Restricted Parties as at that
date read with the deconsolidation and reconciliation accompanying
such balance sheet which change has had, or has any reasonable
likelihood of having, a Material Adverse Effect, and (y) the
business, operations, properties, assets, condition (financial or
otherwise) or prospects of the Restricted Parties have not been
materially adversely affected as a result of any act or event
including, without limitation, fire, explosion, casualty, flood,
drought, riot, storm, condemnation, act of God, accident, labour
trouble, expropriation or act of any government;
(j) neither the financial statements referred to above, any statement or
report furnished under the Credit Documents after the date of this
Agreement nor, to the best of the Cdn. Borrower's knowledge, the
Philip Disclosure Documents nor the June, 1997 confidential offering
memorandum respecting the Credit circulated by the Co-Arrangers in
connection with the initial syndication of the Credit contain, as at
the time such statements, other statement or report, disclosure
documents or confidential offering memorandum were furnished, any
untrue statement of a material fact or any omission of a material
fact necessary to make the statements contained in such financial
statements, in such other statement or report, in any Philip
Disclosure Document or in the confidential offering memorandum not
misleading in any material respect, and all such statements and
reports, taken as a whole together with the Credit Documents and the
Philip Disclosure Documents and the confidential offering memorandum
do not contain any untrue statement of a material fact or omit a
material fact necessary to make the statements contained in the
Credit Documents, the Philip Disclosure Documents, the confidential
offering memorandum or in such financial statements, other statement
or report not misleading in any material respect;
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(k) there is no fact known to a Borrower which such Borrower has not
disclosed to the Administrative Agent or the Lenders in writing
which affects, or so far as it can now reasonably foresee, will
affect the property, liabilities, affairs, business, prospects,
operations or condition, financial or otherwise, of any Restricted
Party or the ability of any Restricted Party to perform its
obligations under any of the Credit Documents or any agreements or
instruments delivered pursuant to the Credit Documents or the
ability of the Cdn. Borrower to complete the Allwaste Acquisition
and which could reasonably be expected to be material to a
prospective lender providing credit of the size and nature
contemplated by this Agreement;
(l) neither the execution nor delivery of the Credit Documents, or any
agreements or instruments delivered pursuant to the Credit
Documents, the consummation of the transactions contemplated in the
Credit Documents, nor compliance with the terms, conditions and
provisions of the Credit Documents conflicts with or will conflict
with, or results or will result in any breach of, or constitutes a
default under or contravention of, any Requirement of Law applicable
to, or any Contractual Obligation of, any Restricted Party, or
results or will result in the creation or imposition of any Lien
upon any Restricted Party's properties;
(m) each of the Restricted Parties has obtained, made or taken all
consents, approvals, authorizations, declarations, registrations,
filings, notices and other actions whatsoever required as at the
date of this Agreement in connection with the execution and delivery
by any Restricted Party of any of the Credit Documents and all other
agreements or instruments delivered pursuant to the Credit
Documents, and the consummation of the transactions contemplated by
the Credit Documents;
(n) no consent, approval or authorization of any Governmental Authority
is required in connection with the enforcement of any of the Credit
Documents or any agreements or instruments delivered pursuant to the
Credit Documents;
(o) each of the Restricted Parties has paid or made adequate provision
for the payment of all Taxes levied on it or on its property or
income which are due and payable, including interest and penalties,
or has accrued such amounts in its financial statements for the
payment of such Taxes except for charges, fees or dues which are not
material in amount, which are not delinquent or if delinquent are
being contested, and in respect of which non-payment would not have,
or have any reasonable likelihood of having, a Material Adverse
Effect, and there is no material action, suit, proceeding,
investigation, audit or claim now pending, or to the knowledge of
any Restricted Party, threatened by any Governmental Authority
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regarding any Taxes nor has any Restricted Party agreed to waive or
extend any statute of limitations with respect to the payment or
collection of Taxes;
(p) no Restricted Party will incur any material Tax liability with
respect to the Allwaste Acquisition, the Serv Tech Acquisition or
any other transaction contemplated under any of the Credit
Documents;
(q) no event or omission has occurred which constitutes a Default or an
Event of Default;
(r) no Restricted Party is in material default and, to the best of the
knowledge of each Borrower after due enquiry, no event or omission
has occurred which, with the passage of time or the giving of notice
or both, would constitute a material default pursuant to any
material order, writ, decree or demand of any Governmental Authority
or a material default on any material Permits;
(s) each Restricted Party is the sole beneficial owner of its property
with good and marketable title to such property, subject only to
Permitted Liens, with the leases for any leased property to which it
is a lessee being in good standing and in full force and effect;
(t) the corporate structure of the Cdn. Borrower and its Subsidiaries is
as set out in Schedule 18, which Schedule also contains:
(x) a list of the Cdn. Borrower and each of the other Restricted
Parties and the Independent Subsidiaries;
(y) a complete and accurate list of
(A) each such Person's full and
correct name (including any French and English forms
of name), and
(B) the full address (including
postal code or zip code) of each such Person's chief
executive office; and
(z) details of the authorized and issued share capital of each of
the Restricted Parties and their Subsidiaries (other than the
Cdn. Borrower) and the name of the registered and beneficial
owner of all of the issued and outstanding securities of each
such Restricted Party;
(u) security certificates with powers of attorney representing all of
the issued and outstanding shares of each of the Material Restricted
Parties (other than the Cdn.
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Borrower) have been delivered and pledged to the Administrative
Agent pursuant to the Security and the Liens created thereunder
continue to constitute a first priority perfected Lien in all such
security certificates and the shares represented by such security
certificates;
(v) except as disclosed on Schedule 19, none of the Restricted Parties
or any of their respective Subsidiaries is subject to any material
civil, criminal, regulatory proceeding or governmental or regulatory
investigation arising under, related to or with respect to
Environmental Law or is subject to any such material proceeding
which is with respect to laws relating to occupational health and
safety nor is a Borrower aware of any threatened material
proceedings or investigations. Each of the Restricted Parties and
their respective Subsidiaries is actively and diligently proceeding
to use its respective best efforts to comply in all material
respects with all Environmental Law and laws relating to
occupational health and safety, and all such steps are being
completed in a manner consistent with a prudent and responsible
professional resource recovery and industrial service company;
(w) all real property owned or leased by a Restricted Party may be used
in all material respects by the Restricted Parties pursuant to
Applicable Law for the present use and operation of the material
elements of the business conducted on such real property;
(x) each of the Restricted Parties has obtained all necessary material
Permits (including Permits under Environmental Law), which are all
in good standing in all material respects and unrevoked, necessary
for the operations being conducted or intended to be conducted on
the applicable Restricted Party's property, and there are no
existing circumstances which might give rise to the revocation of
any such material Permits;
(y) except as disclosed in Schedule 17, none of the Restricted Parties
has received any notice of any material liens within the meaning of
the Construction Lien Act of Ontario or similar legislation
prevailing in any other jurisdiction;
(z) Schedule 20 lists all material contracts to which a Restricted Party
is a party and in respect of which the performance or
non-performance of such contract could have a Material Adverse
Effect;
(aa) no steps have been taken to terminate any Pension Plan or Non-U.S.
Pension Plan which, in either case, could result in any material
liability being incurred by any Restricted Party and no contribution
failure has occurred with respect to any Pension Plan sufficient to
give rise to a lien for any material amount under section 302(f) of
ERISA and no contribution failure has occurred with respect to any
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Non-U.S. Pension Plan sufficient to give rise to a lien or deemed
trust for any material amount under Applicable Law and no Pension
Plan has an Unfunded Current Liability which when added to the
amount of Unfunded Current Liabilities with respect to all other
Pension Plans exceeds the aggregate amount of Unfunded Current
Liabilities that existed on the initial Borrowing Date by U.S.
$10,000,000 (or the Equivalent Amount in any other currency or
currencies), and using actuarial assumptions and computation
methods consistent with Part 1 of subtitle E of Title IV of ERISA,
the aggregate liabilities of the Restricted Parties and their ERISA
Affiliates to all Pension Plans which are multiemployer plans (as
defined in Section 4001(a)(3) of ERISA) in the event of a complete
withdrawal therefrom, as of the close of the most recent fiscal
year of each such Pension Plan ended prior to the date of the most
recent Borrowing Date would not exceed U.S. $10,000,000 (or the
Equivalent Amount in any other currency or currencies), and the
Restricted Parties do not maintain or contribute to any employee
welfare benefit plan (as defined in Section 3(1) of ERISA)
which provides benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or any
Pension Plan the obligations with respect to which could reasonably
be expected to have a Material Adverse Effect, and no condition
exists or event or transaction has occurred with respect to any
Pension Plan or Non-U.S. Pension Plan which could result in the
incurrence by any Restricted Party of any material liability, fine
or penalty, and each Non-U.S. Pension Plan and Non-U.S. Welfare
Plan has been maintained in substantial compliance with its terms
and in compliance in all material respects with the requirements
of any and all Applicable Laws and has been maintained, where
required, in all material respects in good standing with applicable
Governmental Authorities. All contributions required to be made
with respect to each Non-U.S. Pension Plan and Non-U.S. Welfare
Plan have been timely made in accordance in all material respects
with the terms thereof and all Applicable Laws. The Restricted
Parties have not incurred any material obligation in connection
with the termination of or withdrawal from any Non-U.S. Pension
Plan or Non-U.S. Welfare Plan. Each Non-U.S. Pension Plan and
Non-U.S. Welfare Plan for which funding is required under its
terms pursuant to Applicable Laws is fully funded or fully insured
in all material respects on both a solvency and going concern basis
as at the end of the applicable Restricted Party's most recently
ended Financial Year on substantially the basis of the actuarial
assumptions and methodology contained in the most recent actuarial
valuation report filed in respect of such plan with the applicable
Governmental Authority or where no such filing is required in
accordance with the most recent actuarial valuation report prepared
in respect of such plan.
(bb) the value of the Margin Stock at any time owned by the Restricted
Parties (other than Margin Stock acquired pursuant to a Two-Step
Permitted Acquisition, which, at the time this representation is
made, continues to constitute Margin Stock that
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SECTION 7.01
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is pledged at such time as Security) does not exceed 25% of the
value of the property of the Restricted Parties taken as a whole.
Neither the making available of any Accommodation by a Lender, nor
the use of the proceeds of any such Accommodation, will violate or
be inconsistent with the provisions of Regulation G, T, U or X.
(cc) none of the Restricted Parties is an "investment company" within the
meaning of the United States Investment Company Act of 1940, as
amended, or 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 United States Public Utility Holding Company Act of 1935, as
amended;
(dd) no portion of any of the property of any of the Restricted Parties
has been listed, designated or identified in the National Priorities
List ("NPL") or the CERCLA Information System ("CERCLIS"), both as
published by the United States Environmental Protection Agency, or
any similar list of sites published by any federal, state or local
authority proposed for requiring clean up or remedial or corrective
action under any Environmental Law;
(ee) the Cdn. Borrower reviews and evaluates on an ongoing basis, in
consultation with its environmental consultants, the potential
liability of the Restricted Parties under Environmental Law or
otherwise relative to Environmental Activities and sets and at all
times maintains reserves on its financial statements for these
liabilities based on, and in an amount at least equal to, the Cdn.
Borrower's reasonable estimate of the potential liability of the
Restricted Parties relative to all such matters;
(ff) the Cdn. Borrower and its officers, advisors and consultants have
completed customary and reasonable financial, environmental,
business and legal due diligence reviews of Allwaste and Serv Tech
and their Subsidiaries and their respective businesses, operations,
properties, financial condition and performance and are not aware of
any fact or matter respecting any of the foregoing which (i) as a
result of or in connection with the Allwaste Acquisition or the Serv
Tech Acquisition, has any reasonable likelihood of having a Material
Adverse Effect, or (ii) is otherwise of a nature which a reasonable
Person would consider that a prudent and conscientious Person
entering into an agreement such as this Agreement as an agent, a
co-arranger or a lender would want to be made aware of; and
(gg) (i) the revenue of each of the Restricted Subsidiaries listed in
Schedule 26 (as such Schedule may have been amended as provided
for in subsection 8.01(w) prior to the time this representation
is given) and its
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Subsidiaries (other than Independent Subsidiaries) for the most
recently completed four Financial Quarters was less than 1% of
the aggregate revenue of all of the Restricted Parties for such
four Financial Quarters;
(ii) the book value of the property of each of the Restricted
Subsidiaries listed in Schedule 26 (as such Schedule may
have been amended as provided for in subsection 8.01(w)
prior to the time this representation is given) and its
Subsidiaries (other than Independent Subsidiaries) is less
than 1% of the book value of all property of all of the
Restricted Parties;
(iii) no Restricted Subsidiary listed in Schedule 26 (as such
Schedule may have been amended as provided for in subsection
8.01(w) prior to the time this representation is given) or
any of its Subsidiaries owns, leases, licenses or otherwise
holds any property which is material to the undertaking,
business, operation or property of any Material Restricted
Party;
(iv) the aggregate revenue of all of the Restricted Subsidiaries
listed in Schedule 26 (as such Schedule may have been amended
as provided for in subsection 8.01(w) prior to the time this
representation is given) and their Subsidiaries (other than
Independent Subsidiaries) for the most recently completed
four Financial Quarters was less than 15% of the aggregate
revenue of all of the Restricted Parties for such four
Financial Quarters; and
(v) the book value of the property of all of the Restricted
Subsidiaries listed in Schedule 26 (as such Schedule may
have been amended as provided for in subsection 8.01(w)
prior to the time this representation is given) and their
Subsidiaries (other than Independent Subsidiaries) is less
than 15% of the book value of all property of all of the
Restricted Parties.
1.072 REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in Section 7.01 will be deemed
to be repeated by each of the Borrowers as of the date of each request for new
Accommodation by any Borrower (other than rollovers, renewals or conversions of
Accommodation) except to the extent that on or prior to such date (a) the Cdn.
Borrower has advised the Administrative Agent in writing of a variation in any
such representation or warranty, and (b) if such variation in the opinion of
the Required Lenders, acting reasonably, is material to the property, business,
prospects or financial position of the Restricted Parties considered as a whole
or could otherwise have a Material Adverse Effect, the Required Lenders have
approved such variation.
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ARTICLE EIGHT
COVENANTS
1.081 AFFIRMATIVE COVENANTS
So long as this Agreement is in force and except as otherwise permitted by
the prior written consent of the Required Lenders (or such greater threshold as
may be provided for elsewhere in this Agreement), each of the Borrowers
covenants and agrees that it will, and with respect to clauses (b), (c), (d),
(e), (f), (h), (j), (k), (l), (m), (n), (p), (t), (u) and (v) it will cause
each of the other Restricted Parties to, and with respect to clauses (q) and
(r) it will cause each of the Independent Subsidiaries to:
(a) Financial Statements. Furnish to the Administrative Agent:
(i) (x) as soon as available, but in any event within 120 days
after the end of each Financial Year a copy of the
audited consolidated balance sheet of the Cdn. Borrower
and its Subsidiaries as at the end of such Financial
Year, together with the related audited consolidated
statements of earnings, changes in financial position
and shareholders' equity of the Cdn. Borrower and its
Subsidiaries for such Financial Year, setting forth in
each case in comparative form the figures for the
previous Financial Year and reported on by Deloitte &
Touche or any other independent internationally
recognized firm of chartered accountants or certified
public accountants;
(y) as soon as available, but in any event within 90 days
after the end of each Financial Year (A) a copy of the
unaudited consolidated balance sheet of the Cdn.
Borrower and its Subsidiaries as at the end of such
Financial Year, together with the related unaudited
consolidated statements of earnings, changes in
financial position and shareholders' equity of the Cdn.
Borrower and its Subsidiaries for such Financial Year,
setting forth in each case in comparative form the
figures for the previous Financial Year and budgeted
figures for such Financial Year and accompanied by an
Officer's Certificate substantially in the form of
Schedule 21 stating that in such officer's opinion such
financial statements present fairly the consolidated
financial position of the Cdn. Borrower and its
Subsidiaries as at the date of such statements and for
the reporting period included in such statements, and
(B) a deconsolidation and
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SECTION 8.01
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reconciliation of the financial statements referred to
in clause (A) above deconsolidating and eliminating the
balance sheet, income and cash flow effects from
Persons which are not Restricted Parties and rendering
the equivalent of the financial statements referred to
in clause (A) above on a Modified Consolidated basis
and in compliance with Section 1.03; and
(z) as soon as available, but in any event within 120 days
after the end of each Financial Year a copy of the
unaudited consolidated balance sheet of the U.S.
Borrower and its Subsidiaries as at the end of such
Financial Year, together with the related unaudited
consolidated statements of earnings, changes in
financial position and shareholders' equity of the U.S.
Borrower and its Subsidiaries for such Financial Year,
setting forth in each case in comparative form the
figures for the previous Financial Year accompanied by
an Officer's Certificate substantially in the form of
Schedule 21 stating that in such officer's opinion such
financial statements present fairly the consolidated
financial position of the U.S. Borrower and its
Subsidiaries as at the date of such statements and for
the reporting period included in such statements;
(ii) as soon as available, but in any event not later than 60 days
after the end of each of the first three Financial Quarters:
(x) (A) a copy of the unaudited consolidated balance sheet
of the Cdn. Borrower and its Subsidiaries as at the end
of such Financial Quarter, together with the related
unaudited consolidated statements of earnings, changes
in financial position and shareholders' equity of the
Cdn. Borrower and its Subsidiaries for such Financial
Quarter and the portion of the Financial Year through
the end of such Financial Quarter, setting forth in each
case in comparative form the figures for the previous
Financial Year and the budgeted figures for such
Financial Quarter and the portion of the Financial Year
to the end of such Financial Quarter, and accompanied by
an Officer's Certificate substantially in the form of
Schedule 21 stating that in such officer's opinion such
financial statements present fairly the consolidated
financial position of the Cdn. Borrower and its
Subsidiaries as at the date of such statements and for
the reporting period included in such statements
(subject to normal year-end audit adjustments), (B) a
deconsolidation and reconciliation of the financial
statements referred to in clause (A) above
deconsolidating and eliminating the
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SECTION 8.01
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balance sheet, income and cash flow effects from
Persons which are not Restricted Parties and rendering
the equivalent of the financial statements referred to
in clause (A) above on a Modified Consolidated basis
and in compliance with Section 1.03, and (C) if such
Financial Quarter is the Financial Quarter ending June
30, 1997, the June 30 Pro Forma Financial Statements;
and
(y) a copy of the unaudited consolidated balance sheet of
the U.S. Borrower and its Subsidiaries as at the end of
such Financial Quarter, together with the related
unaudited consolidated statements of earnings, changes
in financial position and shareholders' equity of the
U.S. Borrower and its Subsidiaries for such Financial
Quarter and the portion of the Financial Year through
the end of such Financial Quarter, setting forth in each
case in comparative form the figures for the previous
Financial Year, and accompanied by an Officer's
Certificate substantially in the form of Schedule 21
stating that in such officer's opinion such financial
statements present fairly the consolidated financial
position of the U.S. Borrower and its Subsidiaries as at
the date of such statements and for the reporting period
included in such statements (subject to normal year-end
audit adjustments);
(iii) as soon as available, but in any event not later than the
earlier of 10 days after the date of approval thereof by the
board of directors of the Cdn. Borrower and 60 days after the
commencement of each Financial Year, a copy of the Modified
Consolidated corporate budget (the "ANNUAL BUDGET") (both
capital and operating) for the Restricted Parties for such
Financial Year (including without limitation a summary of all
proposed Capital Expenditures and Dispositions by division)
as approved by the board of directors of the Cdn. Borrower
setting forth the principal assumptions upon which such
budget is based and which budget shall contain forecasted
consolidated balance sheets, statements of earnings and
statements of expenses for the Restricted Parties for the
Financial Year covered by such budget and forecasted
statements of changes in financial position for the
Restricted Parties for the Financial Year covered by such
budget, such budget to be in substantially the form of, and
to contain summaries and information, and corporate and
division financial information (including information
respecting fixed assets and expenditures, Capital
Expenditures, investments, intangible assets and bank
position, debt and interest expense) as contained in the
February, 1997 annual budget of the Cdn. Borrower; and
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SECTION 8.01
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(iv) as soon as available, but in any event not later than the
date of the delivery of the Annual Budget for any Financial
Year, an update of the five-year forecast for the Restricted
Parties covering the Financial Year covered by such Annual
Budget and the following four Financial Years, which
five-year forecast shall be in substantially the form of, and
to contain summaries and information, and corporate and
division financial information (including information
respecting fixed assets and expenditures, Capital
Expenditures, investments, intangible assets and bank
position, debt and interest expense) as contained in, the
five-year forecast delivered by the Cdn. Borrower to the
Co-Arrangers in connection with the initial syndication of
the Credit.
All financial statements will be prepared on a consolidated basis (or a
Modified Consolidated basis, as the case may be) and in accordance with
GAAP (containing any required reconciliations to show all amounts which
for the purpose of this Agreement are to be determined in accordance
with GAAP in effect on December 31, 1996 as so determined in accordance
with GAAP in effect on such date). Audited financial statements
required to be delivered pursuant to this Agreement will be complete
and accompanied by a report of an independent auditor confirming that
the audit was conducted in accordance with generally accepted auditing
standards and confirming that in the auditor's opinion, such financial
statements present fairly in all material respects the consolidated
financial position of the Cdn. Borrower at the relevant date and the
consolidated results of its operations and the consolidated changes in
its financial position for the relevant period, in accordance with
GAAP.
(b) Certificates; Other Information. Furnish to the Administrative Agent:
(i) concurrently with the delivery of the financial statements
referred to in clauses 8.01(a)(i) and (ii), an Officer's
Certificate of the Cdn. Borrower substantially in the form of
Schedule 21 stating that, to the best of such officer's
knowledge, each of the Restricted Parties and the Independent
Subsidiaries during such period has observed or performed all
of its covenants and other agreements, and satisfied every
condition, contained in each of the Credit Documents to be
observed, performed or satisfied by it, and that such officer
has obtained no knowledge of any Default or Event of Default
except as specified in such certificate, such certificate to
include calculations to evidence compliance with the
financial covenants set forth in Section 8.03 and the Debt to
EBITDA Pricing Adjustment Ratio applicable to the calculation
of interest and fees pursuant to Article Three;
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(ii) concurrently with the delivery of the financial statements
referred to in clauses 8.01(a)(i) and (ii), an Officer's
Certificate of the Cdn. Borrower substantially in the form of
Schedule 22 respecting compliance by the Restricted Parties
with Environmental Laws;
(iii) concurrently with the delivery of the financial statements
referred to in clause 8.01(a)(i), a copy of the annual
environmental report respecting the Restricted Parties from
an independent environmental consultant satisfactory to the
Administrative Agent, acting reasonably, retained by the
Restricted Parties;
(iv) concurrently with the delivery of the financial statements
referred to in clause 8.01(a)(i), certificates of all
insurance referred to in subsection 8.01(e) (excluding any
policies relating solely to automobile insurance) of each of
the Restricted Parties in effect on the last day of the
immediately preceding Financial Year;
(v) within 10 Business Days of the granting of any material
Permitted Lien, notice of such Permitted Lien and, promptly
following any request from the Administrative Agent, such
information relating to any Permitted Lien or Permitted Liens
as the Administrative Agent may reasonably request;
(vi) promptly, and in any event, within 5 Business Days after any
Restricted Party (w) is notified by the Internal Revenue
Service of its liabilities for the tax imposed by Section
4971 of the Code, for failure to make required contributions
to a Pension Plan or Section 4975 of the Code, or penalties
under Section 502(i) of ERISA for engaging in a prohibited
transaction, (x) notifies PBGC of the termination of a
defined benefit pension plan, if there are not, or may not
be, sufficient assets to convert the plan's benefit
labilities as required by Section 4041 of ERISA, (y) is
notified by the PBGC of the institution of pension plan
termination proceedings under Section 4042 of ERISA or that
it has a material liability under Section 4063 of ERISA, or
(z) is notified that it has withdrawal liability under
Section 4202 of ERISA which is material, copies of the notice
or other communication given or sent;
(vii) within five Business Days after the same are sent, copies of
all reports which any Restricted Party sends to its
shareholders or partners which are material to the business,
operations, property. condition or prospects, financial or
otherwise, of either Borrower or any Restricted Subsidiary,
and within five days after the same are filed, copies of all
financial statements and copies of all reports, notices, news
releases and other
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documents, if any, which any Restricted Party may make to, or
file with, any Governmental Authority (including any stock
exchange or any federal, provincial or state securities
commission or analogous Governmental Authority) and which
reports, notices, news releases or other documents contain
information, or relate to matters, which are material to the
business, operations, property, condition or prospects
(financial or otherwise) of either Borrower or any Restricted
Subsidiary;
(viii) promptly on entering into any definitive or final form of
agreement respecting any Acquisition, any Disposition or any
Additional Debt involving an amount (or in the case of a
Disposition, an amount or property of a value) in excess of
U.S. $50,000,000 (or the Equivalent Amount in any other
currency or currencies), notice of such proposed Acquisition,
Disposition or Additional Debt, as the case may be, and all
pertinent information relative thereto and from time to time
thereafter promptly all relevant information respecting any
material developments relative to, and respecting the
completion or closing of, such Acquisition, Disposition or
Additional Debt, as the case may be;
(ix) all other information with respect to the Restricted Parties
and their respective property and the Independent
Subsidiaries which may be requested from time to time by the
Administrative Agent, acting reasonably, and which is
available to the Restricted Parties; and
(x) with each quarterly compliance certificate referred to in
clause 8.01(b)(i), an updated report with supporting
financial information confirming the status of all assurances
and obligations referred to in clause (c)(i)(y) of the
definition of Contingent Obligation, any proceedings or
events respecting the demand, call or other event relative to
such assurances and obligations and the basis on which such
assurances and obligations would or would not be treated as a
liability in accordance with GAAP and, promptly following any
material change or development in the nature or status of any
assurances or obligations referred to in clause (c)(i)(y) of
the definition of Contingent Obligation which are in an
amount in excess of U.S. $5,000,000 (or the Equivalent Amount
in any other currency or currencies), an updated report
confirming the status of such assurances or obligations, any
proceedings or events respecting the demand, call or other
event relative to such assurances or obligations and the
basis on which such assurances or obligations would or would
not be treated as a liability in accordance with GAAP.
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(c) Payment of Obligations. Pay, discharge or otherwise satisfy (i) in
accordance with normal business practices in the case of trade
payables, and (ii) at or before maturity or before they become
delinquent, as the case may be, in the case of all of its other Debt
and other material obligations of whatever nature, except when (x) the
amount or validity thereof is currently being contested, (y) reserves
in conformity with GAAP with respect thereto have been provided for in
the Modified Consolidated financial statements of the Restricted
Parties, and (z) the failure to pay the same would not have, or have
any reasonable likelihood of having, a Material Adverse Effect.
(d) Conduct of Business and Maintenance of Existence. Engage in business
of the same general type as now conducted by it; carry on and conduct
its business and operations in a proper, efficient and businesslike
manner, in accordance with good business practice; preserve, renew and
keep in full force and effect its existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business; and comply with all
Contractual Obligations and Requirements of Law except to the extent
that the failure to comply therewith would not, in the aggregate, have,
or have any reasonable likelihood of having, a Material Adverse Effect.
(e) Maintenance of Property and Insurance. Keep all property useful and
necessary in its business in good working order and condition, normal
wear and tear excepted; maintain with financially sound and reputable
insurance companies insurance with respect to the conduct of its
business and on all its property which meets the requirements of
Schedule 23; and furnish to the Administrative Agent, upon written
request, full information as to, and certified copies of all policies
respecting, the insurance carried.
(f) Inspection of Property: Books and Records; Discussions. Keep proper
books of record and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities;
and permit representatives and agents of the Administrative Agent and
the Other Agents to visit and inspect any of its properties and examine
and make abstracts from any of its books and records at any reasonable
time, on reasonable notice and as often as may reasonably be desired,
and to discuss the business, operations, property, condition and
prospects (financial or otherwise) of the Restricted Parties with
senior officers of the Restricted Parties and with their independent
chartered accountants.
(g) Notices. Promptly give notice to the Administrative Agent:
(i) of the occurrence of any Default or Event of Default;
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SECTION 8.01
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(ii) of any:
(x) default or event of default under any Contractual
Obligation of any Restricted Party; or
(y) litigation, investigation or proceeding which may exist
or be threatened at any time between any Restricted
Party and any Governmental Authority; or
(z) any other event or circumstance;
which in any such case the Borrower considers has, or has any
reasonable likelihood of having, a Material Adverse Effect;
(iii) of any suit, litigation or other proceeding which is
commenced or threatened against any Restricted Party which
involves a claim in excess of U.S. $10,000,000 (or the
Equivalent Amount in any other currency or currencies), or in
which any injunctive or similar relief is sought, and all
material developments in respect thereof;
(iv) the occurrence of the acceleration, default or demand
pursuant to the terms of any Debt of any Restricted Party
which is in the aggregate in excess of U.S. $10,000,000 (or
the Equivalent Amount in any other currency or currencies);
(v) any material default or event of default under any material
Permitted Lien or any Debt secured by any material Permitted
Lien;
(vi) of the date on which any material contribution is required to
be made to any Pension Plan under Section 302(f) of ERISA;
(vii) of the institution of any steps by any Person to terminate
any Pension Plan or Non-U.S. Pension Plan if such termination
could give rise to any material liability on the part of any
Restricted Party, or the failure to make a required
contribution to any Pension Plan if such failure is
sufficient to give rise to a lien for a material amount under
section 302(f) of ERISA or the failure to make a required
contribution to any Non-U.S. Pension Plan if such failure is
sufficient to give rise to a lien or deemed trust for a
material amount under Applicable Law, or the taking of any
action with respect to a Pension Plan which could result in
the requirement that any Restricted Party furnish a bond or
other security to the PBGC or such
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SECTION 8.01
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Pension Plan, or that could have the result that any
Restricted Party may incur any material liability pursuant to
any employee welfare benefit plan (as defined in Section 3(1)
of ERISA) that provides benefits to retired employees or
other former employees (other than as required by Section 601
of ERISA) or any Pension Plan or any Non-U.S. Pension Plan or
Non-U.S. Welfare Plan in addition to the liability that
existed on the initial Borrowing Date pursuant to any such
plan or plans, or the occurrence of any event with respect to
any Pension Plan or Non-U.S. Pension Plan or Non-U.S. Welfare
Plan which could result in the incurrence by any Restricted
Party of any material liability, fine or penalty;
(viii) of the occurrence of any event or circumstance which the
Borrower considers has, or which has any reasonable
likelihood of having, a Material Adverse Effect;
(ix) any civil, criminal or regulatory proceedings or
investigations which could give rise to a claim or claims
individually in excess of U.S. $2,000,000 (or the Equivalent
Amount in any other currency or currencies) or in the
aggregate in excess of U.S. $10,000,000 (or the Equivalent
Amount in any other currency or currencies) arising under,
relating to or with respect to any Environmental Law or laws
relating to occupational health and safety, including without
limitation, any action request, control order, stop order or
violation notice or breach of any certificate, approval,
permit, consent, order or direction concerning the
installation or operation of any machinery, equipment or
facility constituting the property of the Cdn. Borrower or
any of its Subsidiaries, or concerning any structure,
activity or facility on or in any such property;
(x) any material Release from the real property of the Cdn.
Borrower or any of its Subsidiaries into the Natural
Environment other than a Release which is not in violation in
any material respect of Environmental Law; and
(xi) if any Restricted Party learns that any Governmental
Authority or any employee or agent thereof has determined,
threatens to determine or requires an investigation to
determine that there exists any material Release from the
property of the Cdn. Borrower or any of its Subsidiaries into
the Natural Environment other than a Release which is not in
violation in any material respect of Environmental Law.
Each notice pursuant to this subsection shall be accompanied by an
Officer's Certificate of the Cdn. Borrower setting forth details of the
occurrence referred to
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SECTION 8.01
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therein and stating the potential effect of such occurrence on the
business, operations, property and financial condition of the Borrowers
and the Restricted Subsidiaries and what action the Restricted Parties
have taken and propose to take with respect thereto.
(h) Permits and Requirements of Law. Obtain and maintain in effect all
Permits which are material to the ownership and operation of its
business and property from time to time, and comply in all material
respects with the conditions of such Permits.
(i) Use of Accommodation. Ensure that all proceeds of Accommodation are
used only for the purposes expressly permitted by Section 2.02.
(j) Environmental Clean-Up. Investigate and clean-up, as required by
Applicable Laws (subject to the right of the Restricted Parties to
dispute or contest interpretations of the Law provided that such
dispute or contestation would not give rise to, and would not have any
reasonable likelihood of giving rise to, a Material Adverse Effect),
any Release of Contaminant from any of its properties or caused by it
with the utmost care and due diligence and comply in all material
respects with all material orders issued by any Governmental Authority
with respect to the Natural Environment.
(k) No Environmental Damage. Conduct its business and affairs in a manner
consistent with that of a prudent and responsible resource recovery and
industrial services company and at all times actively and diligently
proceed to use its best efforts to comply with (and will comply in all
material respects with) all Environmental Law and laws relating to
occupational health and safety.
(l) Security.
(i) Provide, and cause each other Restricted Party (other than
Phencorp International Finance Inc.) to provide, to the
Administrative Agent (on or prior to the Closing Date with
respect to the Restricted Parties on such date and otherwise
within 30 days of any Person becoming a Restricted Party (or
such longer period as may be agreed to by the Administrative
Agent where an auditor's report or confirmation may be
required as a condition to the validity or enforceability of
any such Security) or within 30 days following the date by
which the quarterly compliance certificate for the Financial
Quarter (or the Financial Year in the case of a 4th Financial
Quarter) in which a Non Material Restricted Subsidiary
becomes a Material Restricted Party is required to be
delivered to the Administrative Agent, as the case may be),
the Security (together with all
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SECTION 8.01
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applicable security certificates and powers of attorney for
all securities of all Material Restricted Parties to be
pledged under such Security) required from time to time
pursuant to Article Six in accordance with the provisions of
such Article, accompanied by supporting resolutions,
certificates and opinions in form and substance satisfactory
to the Administrative Agent, acting reasonably;
(ii) provide the Administrative Agent on a monthly basis, with all
pertinent information, if any, required to update the
information set forth in Schedule 16 and Schedule 18 and to
ensure that all issued and outstanding shares of all Material
Restricted Parties (other than the Cdn. Borrower) continue to
be validly pledged to the Administrative Agent under the
Security; and
(iii) do, execute and deliver, and cause each of its Subsidiaries
to do, execute and deliver, all such things, documents,
security, agreements and assurances as may from time to time
be requested by the Administrative Agent, acting reasonably,
to ensure that the Administrative Agent holds at all times
valid, enforceable, perfected first priority Security from
the Restricted Parties meeting the requirements of Article
Six.
(m) Permitted Liens. Comply in all material respects with each agreement
which constitutes a Permitted Lien and requires compliance therewith by
a Restricted Party.
(n) Appointment of Consultants. Allow the Administrative Agent on behalf
of the Other Agents and the Lenders, with, prior to an Event of
Default, the Cdn. Borrower's consent (such consent not to be
unreasonably withheld or delayed), to appoint consultants or agents at
any time to complete audits or to report on any other matter as may be
deemed necessary by the Administrative Agent on behalf of the Other
Agents and the Lenders (or any one of them), all at the Cdn. Borrower's
expense.
(o) Reserves for Environmental Liabilities. Review and evaluate on an
ongoing basis, in consultation with its environmental consultants, the
potential liability of the Restricted Parties under Environmental Law
or otherwise relative to Environmental Activities and set and at all
times maintain reserves on its financial statements for these
liabilities based on, and in an amount at least equal to, the Cdn.
Borrower's reasonable best estimate of the potential liability of the
Restricted Parties relative to all such matters.
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(p) Payment of Taxes. Pay or cause to be paid all Taxes, government fees
and dues levied, assessed or imposed on it or on all or any part of its
property as and when the same become due and payable; provided that it
may contest the payment of any such Taxes, fees or dues if it has
maintained adequate reserves with respect thereto in accordance with
GAAP.
(q) Independent Subsidiaries - Delivery of Agreements. Cause each
Independent Subsidiary (in the case of Independent Subsidiaries
existing on the date of this Agreement, on or prior to the Closing
Date, and in the case of Persons which become Independent Subsidiaries
after the date of this Agreement, within 30 days of the date on which
they become Independent Subsidiaries):
(i) to execute and deliver to the Borrowers and the
Administrative Agent a Corporate Separateness Covenant and
Assurance Agreement and, if such Independent Subsidiary
consents or is required to join in the filing of consolidated
federal income tax returns in the United States of America
with any one or more of the Restricted Parties, a Tax Sharing
Agreement together in each case with such supporting
certificates, resolutions, corporate documentation and legal
opinions as the Administrative Agent, acting reasonably, may
request with respect to such agreements; and
(ii) to deliver, or cause to be delivered, to the Borrowers and to
the Administrative Agent Non Recourse Acknowledgements and
Undertakings from all material creditors of such Independent
Subsidiary;
and cause each Independent Subsidiary to observe, perform and comply
with, in all material respects, its covenants, obligations and
undertakings from time to time under its Corporate Separateness
Covenant and Assurance Agreement and Tax Sharing Agreement.
(r) Independent Subsidiaries - Conduct of Business. Cause each Independent
Subsidiary to conduct its business and affairs without any Financial
Assistance from any Restricted Party (except for Investments permitted
under subsection 8.02(e) and Financial Assistance permitted under
subsection 8.02(l)) and in a manner which, to the extent then possible
under Applicable Law, would not result in the creditors of such
Independent Subsidiary having any Recourse Against any Restricted Party
for the debts, liabilities or obligations of such Independent
Subsidiary to such creditors.
(s) Expenses. Pay promptly all reasonable fees and disbursements
(including sales tax, goods and services tax and harmonized sales and
goods and services tax) incurred or paid by the Administrative Agent,
the Other Agents or the Lenders in
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SECTION 8.01
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connection with the preparation, negotiation, execution, delivery,
maintenance, administration, amendment and enforcement (including any
workouts in connection with or in lieu of any enforcement), of the
Credit Documents and any and all other documents contemplated by a
Credit Document and in connection with the consummation of the
transactions contemplated by the Credit Documents and each grant of
Accommodation and in connection with the initial syndication of the
Commitments and including without limitation, all court costs and all
fees and disbursements of lawyers, auditors, consultants, accountants
and environmental auditors and investigators. Such fees and
disbursements (or if the exact amount thereof is undetermined at the
time, a reasonable estimate thereof) may, without further direction of
either Borrower be paid out of any grant of Accommodation under the
Credit. Failure to deduct actual or estimated fees and disbursements
in whole or in part as aforesaid will not reduce the Borrowers'
liability therefor. The Administrative Agent will be entitled (but not
obligated) at any time and from time to time to pay or satisfy any
liability or obligation of a Borrower pursuant to any Credit Document
or any document contemplated by a Credit Document and the Cdn. Borrower
will, on request by the Administrative Agent, promptly reimburse the
Administrative Agent for all amounts expended, advanced or incurred by
the Administrative Agent to satisfy such liability or obligation or to
enforce the rights of the Administrative Agent, any Other Agent or any
Lender pursuant to any Credit Document which amounts will include all
court costs, lawyers' fees, fees of auditors, consultants and
accountants, environmental auditors and investigators and investigation
expenses reasonably incurred by the Administrative Agent, any Other
Agent or any Lender in connection with any such matters.
(t) Further Assurances. At its expense, promptly following the request of
the Administrative Agent, cure or cause to be cured all defects in the
content, execution and delivery of any Credit Document and any other
document arising from the Credit Documents. At its expense, promptly
execute and deliver to the Administrative Agent, or cause to be
executed and delivered to the Administrative Agent, on request by the
Administrative Agent, all such other and further documents, agreements
and instruments necessary to satisfy the obligations of the Restricted
Parties under the Credit Documents or under any of the documents
arising from the Credit Documents, to effect any registrations or
filings required by the Administrative Agent or to obtain any consents
required by the Administrative Agent.
(u) Margin Stock. Take any and all actions as may be required to ensure
that no securities pledged, or required to be pledged, pursuant to the
Security shall constitute Margin Stock; provided that, in the case of a
Two-Step Permitted Acquisition where the consummation of the tender
offer portion thereof results in
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SECTION 8.01
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the acquisition of Margin Stock, the Margin Stock so acquired shall be
pledged pursuant to the Security and (x) at the time of the
consummation of any such tender offer and upon the occurrence of each
Borrowing during any period that Accommodation is secured by Margin
Stock, (i) it will take any and all actions as may be required, or as
may be reasonably requested by the Administrative Agent, to establish
compliance with Regulations G and U, (ii) the Borrowers shall deliver
to each Lender a duly completed Form U-1 or G-3, as appropriate,
referred to in Regulations U and G, and (iii) each Lender shall be able
in good faith to complete such Form U-1 or G-3, as the case may be,
showing that the Accommodation made available by the Lenders pursuant
to this Agreement comply with Regulations U and G, including with
respect to the collateral valuation requirements of such Regulations
and (y) as promptly as practicable after the consummation of the
back-end merger in respect of such Two-Step Permitted Acquisition and
in any event within 30 days thereafter (or, if earlier, 30 days after
the respective Target becomes a Wholly-Owned Restricted Party of a
Borrower), the Borrowers will, and will cause the other Restricted
Parties to, take any and all actions as may be required to ensure that
no security acquired pursuant to such Two-Step Permitted Acquisition
shall continue to, or at any time thereafter, constitute Margin Stock.
(v) Acquisitions. Structure each Acquisition so that the purchasing or
acquiring Restricted Party receives at the time of closing of such
Acquisition a payout and discharge letter from all general bank,
financial institution or credit providers (subject to Permitted
Indebtedness allowed relative to such Acquisition pursuant to clause 1
of Schedule 7 and Permitted Liens allowed relative to such Acquisition
pursuant to clause (s) of Schedule 6), execute and deliver, and cause
to be executed and delivered, all Security required as a result of such
Acquisition (including a pledge of the securities of any acquired
Target and its Subsidiaries and guarantees and securities pledges from
such Target and its Subsidiaries) within the time frames required under
subsection 8.01(l), and cause the Permitted Indebtedness, if any,
allowed under clause 1 of Schedule 7 relative to such Acquisition, and
any Permitted Liens, if any, allowed under clause (s) of Schedule 6
relative to such Acquisition, to be repaid, released and discharged
within the time frames required in such clauses.
(w) Non Material Restricted Subsidiaries. Within 30 days following any
Acquisition and within 30 days following the date by which the
compliance certificate for the Financial Quarter (or Financial Year in
the case of the 4th Financial Quarter) in which any one or more
Restricted Subsidiaries listed in Schedule 26 (as such Schedule may
have been amended prior to such time) cease to qualify as a Non
Material Restricted Subsidiary is required to be delivered to the
Administrative Agent, deliver to the Administrative Agent a draft
revised Schedule 26 listing
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SECTION 8.01
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only Restricted Subsidiaries which would qualify as Non Material
Restricted Subsidiaries under this Agreement, together with such
supporting financial and other information and certificates as the
Administrative Agent, acting reasonably, may require to confirm the
same, which amended schedule, on delivery of written notice from the
Administrative Agent to the Cdn. Borrower acknowledging acceptance of
the same, shall become Schedule 26 for all purposes of this Agreement.
1.082 NEGATIVE COVENANTS
------------------
So long as this Agreement is in force and except as otherwise permitted by
the prior written consent of the Required Lenders (or such greater threshold as
may be provided elsewhere in this Agreement), each of the Borrowers covenants
and agrees that it will not, and that it will cause each of the other
Restricted Parties not to, directly or indirectly:
(a) Debt. Create, incur, assume or suffer or permit to exist any Debt
except:
(i) Debt owing to the Administrative Agent, the Other Agents or
the Lenders under any Credit Document;
(ii) Debt owing under Purchase Money Obligations in an amount not
in excess of the amount of Purchase Money Obligations which
may constitute Permitted Liens at any time as set forth in
Schedule 6;
(iii) Debt owing under Capitalized Lease Obligations relating only
to Rolling Stock and Debt owing under other Capitalized Lease
Obligations (including any such Capitalized Lease Obligations
under a sale and lease back transaction permitted under
subsection 8.02(j)) in an amount not in excess of the amount
of Capitalized Lease Obligations which may constitute
Permitted Liens at any time as set forth in Schedule 6;
(iv) Debt owing under operating leases arising as a result of a
sale and lease back transaction relating only to Rolling
Stock and Debt owing under operating leases arising under any
other sale and lease back transactions permitted under
subsection 8.02(j) in an amount not in excess of U.S.
$70,000,000 (or the Equivalent Amount in any other currency
or currencies) less the aggregate amount of Debt owing at
such time under all Purchase Money Obligations and under all
Capitalized Lease Obligations (other than Capitalized Lease
Obligations relating only to Rolling Stock);
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SECTION 8.02
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(v) Debt owing under operating leases (other than those referred
to in paragraph (iv) of this subsection) entered into in the
ordinary course of business for the purpose of carrying on
the same;
(vi) Debt under Hedging Arrangements permitted under subsection
8.02(r);
(vii) Permitted Indebtedness; and
(viii) subject to compliance with the provisions of Section 4.03,
Additional Debt.
(b) Liens. Create, incur, assume or suffer or permit to exist any Lien
upon any of its property, whether now owned or hereafter acquired,
except for Permitted Liens.
(c) Amalgamation, etc. Enter into any transaction of amalgamation or
consolidation or merger or liquidate, wind-up or dissolve itself (or
suffer any liquidation, winding-up or dissolution or any proceedings
therefor) or continue itself under the laws of any other statute or
jurisdiction, except that, subject to the Restricted Parties taking
such action, and executing and delivering to the Administrative Agent
such undertakings, certificates, agreements, opinions and other
documents as the Administrative Agent, acting reasonably, may require
to affirm and assure the continued validity, enforceability,
effectiveness and priority of the Security and the continued validity,
enforceability and effectiveness of the covenants, agreements and
obligations of the Restricted Parties under the Credit Documents, and
provided that no Default or Event of Default is then continuing or
would be created thereby, any Wholly-Owned Restricted Party may be
amalgamated or consolidated or merged or liquidated, wound-up or
dissolved with or into a Borrower, provided that such Borrower shall be
the continuing corporation, or with or into any one or more other
Wholly-Owned Restricted Parties provided that if any such Restricted
Party is a Material Restricted Party, a Material Restricted Party shall
be the continuing corporation.
(d) Dispositions of Property. Except as permitted by subsection 8.02(c),
Dispose of, in one transaction or a series of transactions, all or any
part of its property, whether now owned or hereafter acquired, except
that:
(i) each of the Restricted Parties may Dispose of, in the normal
course of its business for the purpose of carrying on the
same, for fair market value, in accordance with customary
trade terms, any tangible property that would reasonably be
considered to be the subject matter of sales by it in the
normal course of its business for the purpose of carrying on
the same, or
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SECTION 8.02
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that is worn out, obsolete or no longer useful for the
purpose of carrying on its business;
(ii) any Restricted Subsidiary may Dispose of all or any of its
property (upon voluntary liquidation or otherwise) to a
Borrower or to any Wholly-Owned Restricted Party which has
provided all Security required to be provided under this
Agreement;
(iii) the Restricted Parties may, so long as no Default or Event of
Default is continuing or would be created thereby, provided
that such Disposition would not have, or have any reasonable
likelihood of having, a Material Adverse Effect, in addition
to the other transactions permitted by this subsection (d),
Dispose of property in any Financial Year (the "REFERENCE
FINANCIAL YEAR") provided however that:
(x) on the Business Day following the date of the closing of
any such Disposition an amount equal to that portion, if
any, of the purchase price payable to the Restricted
Parties under any such Disposition (the "DEEMED PROCEEDS
OF DISPOSITION AMOUNT" relative to such Disposition)
which is not Reinvested in the Restricted Parties on the
date of the closing of such Disposition will be paid by
the Borrowers to the Administrative Agent to repay
Accommodation under the Credit as provided for in
subsection 4.04(1); and
(y) on that date which is one year from and including the
date of the closing of any such Disposition (the
"ANNIVERSARY" of such Disposition) in respect of which
the fair market value at the time of such Disposition of
the property so Disposed of exceeds (the amount of such
excess being the "DEEMED EXCESS PROCEEDS OF DISPOSITION
AMOUNT" relative to such Disposition) the greater of (1)
$0, and (2) U.S. $50,000,000 (or the Equivalent Amount
in any other currency or currencies) less the fair
market value of all other property of the Restricted
Parties Disposed of prior to such time under this
paragraph of this subsection during the Reference
Financial Year:
(A) the limit of the Credit will be permanently reduced
by an amount (the "PERMANENT DISPOSITION REDUCTION
AMOUNT" relative to such Disposition) equal to the
amount, if any, by which (X) the Deemed Excess
Proceeds of Disposition Amount relative to such
Disposition exceeds (Y) the amount, if any, which
has been Reinvested in the
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SECTION 8.02
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Restricted Parties from the date of the closing of
such Disposition to the Anniversary of such
Disposition and which has not previously been used
in the calculation of the Permanent Disposition
Reduction Amount relative to any other Disposition;
and
(B) the Borrowers shall make such permanent repayments
of Accommodation, if any, required under the
provisions of subsection 4.04(2); and
(iv) a Restricted Party may enter into an arrangement to factor or
securitize accounts receivable or monetize inventory of such
Restricted Party provided however that no Default or Event of
Default has occurred and is continuing at the time of giving
effect to, or would result from or be created by giving
effect to, such arrangement and provided further that in
connection with any such arrangement other than such an
arrangement involving only Guarantor Subsidiaries:
(w) such arrangement is entered into with third parties on
an arm's length basis on reasonable commercial terms
consistent with those entered into by other Persons in
similar transactions in the market place;
(x) the proceeds from such arrangement are used solely for
the working capital purposes of the Restricted Parties;
(y) such arrangement is without any Recourse Against any
Restricted Party; and
(z) the aggregate of (A) the face amount of all accounts
receivable generated by the Restricted Parties and owned
at any time by another Person or by other Persons under
all such factoring or securitization arrangements, and
(B) the value (determined in accordance with GAAP in the
same manner as used by the Restricted Parties to value
their other inventory) of all inventory created or
acquired by the Restricted Parties and owned or held at
such time by another Person or by other Persons under
all such monetization transactions, may not exceed U.S.
$115,000,000 (or the Equivalent Amount in any other
currency or currencies). For greater certainty there
will not be included in calculating the amounts referred
to in clauses (A) and (B) of this paragraph the face
amount of accounts receivable generated by a Target or
its
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SECTION 8.02
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Subsidiaries prior to the date of the Acquisition of
such Target by a Restricted Party and sold to another
Person or Persons by such Target or its Subsidiaries
prior to the date of such Acquisition under factoring or
securitization arrangements entered into by such Target
or its Subsidiaries prior to such date, or the value of
inventory created or acquired by a Target or its
Subsidiaries prior to the date of the Acquisition of
such Target by a Restricted Party and sold to another
Person or Persons by such Target or its Subsidiaries
prior to the date of such Acquisition under monetization
arrangements entered into by such Target or its
Subsidiaries prior to such date, in each case provided
that neither such arrangement nor such sale was entered
into or effected in connection with, or in anticipation
or contemplation of, such Acquisition.
(e) Investments. Make any Investments in any one or more Persons who are
not Wholly-Owned Restricted Parties which exceed, in the aggregate for
all such Investments made after the date of this Agreement and all
Financial Assistance given after the date of this Agreement as
permitted under subsection 8.02(l) by all Restricted Parties, U.S.
$50,000,000 (or the Equivalent Amount in any other currency or
currencies).
(f) Restricted Payments. Make any Restricted Payment, except that, so long
as no Default or Event of Default is continuing (other than with
respect to Restricted Payments which are in the form of management or
consulting fees or bonuses payable to officers or directors of a
Restricted Party in accordance with bona fide arrangements entered into
in good faith in the ordinary course of business consistent with past
practices, which may be paid in the circumstances provided for in
paragraphs (i) and (ii) of this subsection although a Default or Event
of Default may be continuing provided that amounts owing under this
Agreement have not been accelerated at or prior to such time pursuant
to Section 9.02) or would be created thereby:
(i) any Wholly-Owned Restricted Party may pay Restricted Payments
to a Borrower or to any other Wholly-Owned Restricted Party;
and
(ii) the Cdn. Borrower may make Restricted Payments at any time
provided that:
(x) the sum of (A) all such Restricted Payments to be made
at such time and (B) all Restricted Payments made on or
after the date of this Agreement and prior to such time;
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SECTION 8.02
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does not exceed
(y) 25% of cumulative Net Income for the period from January
1, 1997 to the date of the proposed payment of such
Restricted Payment.
(g) Transfers of Shares. Except for Dispositions which constitute a
Disposition of all of the issued and outstanding shares of such
Restricted Party held by the Restricted Parties and which is otherwise
permitted under paragraph 8.02(d)(iii), Dispose of, or enter into any
agreement to Dispose of, or grant any option respecting, any shares or
other equity interest in any Restricted Party now or hereafter directly
or indirectly held by any Restricted Party or in any other way permit
any reduction in the direct or indirect voting interest, or the direct
or indirect equity interest, of any Restricted Party in any other
Restricted Party. For greater certainty, nothing in this subsection
prohibits shareholders of the Cdn. Borrower from Disposing of any
shares in the Cdn. Borrower held by them.
(h) No Share Issuance. Except for the issue of common shares by the Cdn.
Borrower, issue any securities unless the Person to whom such
securities are issued is a Restricted Party and then only if (i) the
issue of such securities would not result in any reduction in the
direct or indirect voting interest, or the direct or indirect equity
interest, of any Restricted Party in the Restricted Party issuing such
securities, and (ii) if any of the securities of the issuing Restricted
Party are pledged to the Administrative Agent under the Security, the
additional securities so issued are validly pledged for the benefit of
the Administrative Agent and the Lenders under the Security.
Notwithstanding anything contained in this subsection, the Cdn.
Borrower may issue common shares in its capital without the consent of
the Lenders.
(i) Transactions with Affiliates. Except as specifically permitted under
this Agreement, enter into any transaction, including the purchase,
Disposition of any property or the rendering of any services, with any
Affiliate that is not a Wholly-Owned Restricted Party, or with any of
its or their directors or officers, or enter into, assume or suffer to
exist any employment, consulting or analogous agreement or arrangement
with any such Affiliate or with any of its or their directors or
officers, except a transaction or agreement or arrangement (i) which is
in the ordinary course of business of such Restricted Party and which
is upon fair and reasonable terms not less favorable to such Restricted
Party than it would obtain in a comparable arm's-length transaction,
and (ii) if the aggregate value of such transaction or agreement, or
the property or services covered by such transaction or agreement,
could reasonably be expected to exceed U.S. $50,000,000 (or the
Equivalent Amount in any other currency or currencies), in respect of
which such Restricted Party has first delivered a letter from an
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SECTION 8.02
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independent financial advisor acceptable to the Administrative Agent
confirming to the satisfaction of the Administrative Agent, acting
reasonably, the compliance of such transaction or agreement with the
requirements of this subsection.
(j) Sale and Leaseback. Enter into any arrangement with any Person
providing for the leasing by any of the Restricted Parties, as lessee,
of property which has been or is to be Disposed of by any Restricted
Party to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or
the lease obligation of any of the Restricted Parties provided that the
Restricted Parties may enter into such a sale and lease back
transaction provided that
(i) no Default or Event of Default has occurred and is continuing
at the time of, or would result from or be created by giving
effect to, such transaction;
(ii) the liabilities of the Restricted Parties under such
transaction shall constitute Debt for the purposes of this
Agreement; and
(iii) in connection with any such transaction other than a sale and
lease back of property consisting only of Rolling Stock and
other than a sale of property from one Guarantor Subsidiary
to another Guarantor Subsidiary and the lease of such
property by the selling Guarantor Subsidiary from the buying
Guarantor Subsidiary:
(x) the Disposition of the property subject to such
transaction shall constitute a Disposition of property
under paragraph 8.02(d)(iii) and the proceeds from such
Disposition shall be applied as provided for in such
paragraph and elsewhere in this Agreement; and
(y) the aggregate amount of the liabilities of the
Restricted Parties under such transaction together with
the aggregate amount of the liabilities of the
Restricted Parties under all other such transactions may
not at any time exceed U.S. $70,000,000 (or the
Equivalent Amount in any other currency or currencies)
less the aggregate amount at such time of all Debt under
Purchase Money Obligations and all Debt under
Capitalized Lease Obligations (other than Capitalized
Lease Obligations relating only to Rolling Stock).
(k) Acquisitions. Make any Acquisition unless:
(i) the Acquisition is in a Related Business;
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SECTION 8.02
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(ii) no Default or Event of Default has occurred and is continuing
on the date of, or would occur as a result of giving effect
to, such Acquisition; and
(iii) if the cost (including assumption of Debt) for such
Acquisition would exceed U.S. $150,000,000 (or the Equivalent
Amount in any other currency or currencies) and the Cdn.
Borrower does not have an Investment Grade Rating at the time
of such proposed Acquisition, the Cdn. Borrower has delivered
to the Co-Arrangers at least 5 Business Days prior to the
closing of such Acquisition an Officer's Certificate in
substantially the same form as Schedule 21 with pro forma
financial information (which certificate will be distributed
to the Lenders at least 5 Business Days (or such shorter
period as may be practical having regard to the date on which
the Co-Arrangers receive such certificate) prior to the
closing of such Acquisition) confirming on a pro forma basis
the continued compliance of the Restricted Parties (including
the subject matter of such Acquisition) after giving effect
to such Acquisition with the provisions of the Credit
Documents.
For greater certainty, the provisions of this subsection will not
prohibit an Acquisition (including an Acquisition by an Independent
Subsidiary) where such Acquisition is financed entirely (x) from, or
from a combination of, the proceeds of a common share equity issue of
the Cdn Borrower, sources other than Accommodation or the Restricted
Parties or any of their property and any Investments permitted under
subsection 8.02(e), (y) without any Financial Assistance from any of
the Restricted Parties (other than Financial Assistance permitted under
subsection 8.02(l)), and (z) without Recourse Against any of the
Restricted Parties (other than pursuant to Financial Assistance
permitted under subsection 8.02(l)).
(l) Limitation of Financial Assistance. Provide any Financial Assistance
to any one or more Persons which are not Wholly-Owned Restricted
Parties which exceed, in the aggregate for all such Financial
Assistance made after the date of this Agreement and all Investments
given after the date of this Agreement as permitted under subsection
8.02(e) by all Restricted Parties, U.S. $50,000,000 (or the Equivalent
Amount in any other currency or currencies); provided, however, that
this limitation shall not apply to assurances or obligations of
Restricted Parties which are excluded from the definition of Contingent
Obligation pursuant to paragraph (c) of such definition.
(m) No Change of Fiscal Year. Change its financial year end of December
31.
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SECTION 8.02
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(n) No Hostile Take-Over Bids. Make any Hostile Take-Over Bid without the
prior consent of all of the Lenders, after they have received and
considered such information as they may request from the Cdn. Borrower.
(o) No Change of Name. Change its name without 30 days prior written
notice to the Administrative Agent.
(p) No Breaches. Make any request for Accommodation which, if made, would
result in the occurrence of a Default or an Event of Default, including
a default in the Debt to EBITDA Covenant Ratio required to be
maintained under Section 8.03.
(q) Arrangements with Independent Subsidiaries. Except to the extent that
the same constitutes an Investment permitted under subsection 8.02(e)
or Financial Assistance permitted under subsection 8.02(l), provide any
Financial Assistance to any Independent Subsidiary or take or fail to
take any other action, or permit any Independent Subsidiary to take or
fail to take any action, which could result in any creditor of an
Independent Subsidiary having any Recourse Against any Restricted
Party.
(r) Hedging Arrangements. Enter into any Hedging Arrangement unless such
Hedging Arrangement:
(i) is designed to protect the Restricted Parties against
fluctuations in currency exchange rates, interest rates or
commodity prices; and
(ii) has been entered into by such Restricted Party bona fide and
in good faith in the ordinary course of its business for the
purpose of carrying on the same and not for speculative
purposes.
1.083 FINANCIAL COVENANTS
-------------------
So long as this Agreement is in force the Cdn. Borrower:
(a) will ensure that the Interest Coverage Ratio is at all times greater
than 3.5 to 1.0;
(b) will ensure that the Debt to EBITDA Covenant Ratio is at all times:
(i) on or before December 31, 1998, equal to or less than 4.25 to
1.0;
(ii) on or after January 1, 1999 and on or before December 31,
1999, equal to or less than 4.0 to 1.0; and
137
SECTION 8.03
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(iii) on or after January 1, 2000, equal to or less than 3.75 to
1.0;
(c) will ensure that the Fixed Charge Ratio is at all times equal to or
greater than 1.25 to 1.0; and
(d) will ensure that the Working Capital Ratio is at all times equal to or
greater than 1.25 to 1.0.
1.084 INTERPRETATION OF CERTAIN COVENANTS
-----------------------------------
The specification in Article Three of interest rates and fees for a range
which is different than the covenants set forth in Section 8.03, does not limit
the extent of, or relieve the Borrowers from complying with, the covenants in
this Agreement.
ARTICLE NINE
------------
EVENTS OF DEFAULT
-----------------
1.091 EVENTS OF DEFAULT
-----------------
Any one or more of the following events will constitute an Event of Default:
(a) Default in Principal. If a Borrower fails to repay any indebtedness on
account of principal under the Credit when due under this Agreement.
(b) Default in Interest, etc. If a Borrower fails to pay any interest, fees
or other amount payable under any Credit Document (other than principal
referred to in subsection 9.01(a)) within two Business Days of the due
date thereof.
(c) Certain Defaults under Credit Agreement. If a Borrower defaults in the
performance or observance of any term, condition or covenant contained
in Section 8.02 or Section 8.03.
(d) Other Defaults under Credit Documents. Subject to subsections 9.01(a),
(b) and (c), if a Restricted Party or any Independent Subsidiary
defaults in the performance or observance of any term, condition or
covenant contained in any Credit Document and, with respect to any
covenant which is capable of being cured, such default continues for a
period of 15 days or more after written notice of such default has been
delivered by the Administrative Agent or the Required Lenders to the
applicable Person (provided that the grace period can be abridged by
the Administrative Agent or the Required Lenders with respect to any
covenant
138
SECTION 9.01
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for which the above referenced 15 day grace period is available if the
Administrative Agent or the Required Lenders consider that the delay
would impair the Security or if the nature or rank of the Security is
being challenged).
(e) Representations and Warranties. If any representation, warranty or
statement made in any Credit Document or any certificate or other
document delivered to the Administrative Agent, any Other Agent or any
of the Lenders pursuant to this Agreement is untrue or incorrect in any
material respect when made or when deemed to have been made.
(f) Default under Other Agreements with Lenders. If a Restricted Party
defaults in the performance or observance of any term, condition,
representation or covenant contained in any Lender/Borrower Hedging
Arrangement or in any other agreement between such Restricted Party and
the Administrative Agent, any of the Other Agents or any of the Lenders
or any of their respective Eligible Affiliates (other than the Credit
Documents) after the expiry of any applicable grace periods.
(g) Default in other Indebtedness. If there shall be outstanding any
amount or amounts exceeding an aggregate of U.S. $10,000,000 (or the
Equivalent Amount in any other currency or currencies) in respect of
which any one or more of the Restricted Parties shall have failed to
make a payment when due and payable, or if any amount or amounts
exceeding an aggregate of U.S. $10,000,000 (or the Equivalent Amount in
any other currency or currencies) shall have become due and payable by,
or could then be declared by the Person to whom such amount is to be
paid to be due and payable by, any one or more of the Restricted
Parties prior to the stated maturity date thereof or prior to the
regularly scheduled date for payment thereof as a result of any default
or event of default (however described) or other failure by any one or
more of the Restricted Parties to perform or observe any obligation or
covenant.
(h) Credit Documents. If any Credit Document or any part thereof shall, at
any time after its respective execution and delivery and for any
reason, cease in any way to be in full force and effect or if the
Security or any part thereof shall, at any time after its execution and
delivery and for any reason, cease to constitute a Lien of the nature
and priority specified in or contemplated by this Agreement, and in
either such case such event continues for a period of 15 days after
notice thereof from the Administrative Agent or the Required Lenders to
the Cdn. Borrower, or if the validity or enforceability of any Credit
Document is disputed in any manner by any of the parties thereto other
than the Administrative Agent and the Lenders;
139
SECTION 9.01
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(i) Winding-up etc. If an order is made or an effective resolution passed
for the winding-up, liquidation or dissolution of a Restricted Party,
except to the extent permitted under subsection 8.02(c).
(j) Voluntary Insolvency Actions. If any Restricted Party institutes
proceedings for its winding up, liquidation or dissolution, or takes
action to become a voluntary bankrupt, or consents to the filing of a
bankruptcy proceeding against it, or files a proposal, a notice of
intention to make a proposal, a petition or answer or consent seeking
reorganization, readjustment, arrangement, composition or similar
relief under any bankruptcy law or any other similar applicable law or
consents to the filing of any such petition, or consents to the
appointment of a receiver, liquidator, trustee or assignee in
bankruptcy or insolvency of all or a substantial part of the property
of any Restricted Party, or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts
generally as they become due or commits any other act of bankruptcy, or
suspends or threatens to suspend transaction of its usual business, or
any action is taken by any Restricted Party in furtherance of any of
the aforesaid.
(k) Insolvency Proceedings. If a court having jurisdiction enters a decree
or order adjudging any Restricted Party a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
readjustment, arrangement, composition or similar relief under any
bankruptcy law or any other similar applicable law, or a decree or
order of a court having jurisdiction for the appointment of a receiver,
liquidator, trustee or assignee in bankruptcy or insolvency of all or a
substantial part of the undertaking or property of any Restricted
Party, or for the winding up, dissolution or liquidation of its
affairs, is entered and such decree, order or petition is not contested
and the effect thereof stayed, or any material part of the undertaking
or property of any Restricted Party is sequestered or attached and is
not returned to the possession of such Restricted Party or released
from such attachment within 45 days thereafter.
(l) Appointment of Receiver. If a receiver, manager, receiver and manager,
trustee, custodian or other similar official is appointed in respect of
any Restricted Party or any material part of its property.
(m) Bankruptcy Statutes. If any proceeding, voluntary or involuntary, is
commenced, or an order or petition is issued, respecting any Restricted
Party pursuant to any statute relating to bankruptcy, insolvency,
reorganization of debts, liquidation, winding-up or dissolution,
including, without limitation, any proceedings, proposal, notice of
intention to make a proposal, order or petition under the Bankruptcy
and Insolvency Act (Canada), the United States Bankruptcy Code, the
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SECTION 9.01
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Company Creditors Arrangement Act (Canada), the Winding-up Act (Canada)
or any similar legislation in any other jurisdiction.
(n) Judgments. If a final judgment for an amount in excess of U.S.
$10,000,000 (or the Equivalent Amount in any other currency or
currencies) is rendered against a Restricted Party and, within 15
Business Days after entry thereof, such judgment has not been
discharged or execution thereof stayed pending appeal or if, within 15
days after the expiration of any such stay, such judgment has not been
discharged.
(o) Encumbrances. If an encumbrancer takes possession of any property of
one or more Restricted Parties the value of which in the opinion of the
Required Lenders exceeds U.S. $10,000,000 (or the Equivalent Amount in
any other currency or currencies), or if a distress or execution or any
similar process is levied or enforced against any property of one or
more Restricted Parties, the value of which in the opinion of the
Required Lenders exceeds U.S. $10,000,000 (or the Equivalent Amount in
any other currency or currencies), and such distress, execution or
similar process remains unsatisfied for such period as would permit
such property or any part thereof to be sold thereunder, provided that
such possession or process has not been stayed and is not being
contested in good faith by the applicable Restricted Party (or if
contested in good faith is not dismissed within 45 days).
(p) Cease to carry on Business. If a Restricted Party ceases or threatens
to cease to carry on in the ordinary course its business or a
substantial part thereof, except to the extent permitted under
subsection 8.02(c).
(q) Qualified Auditor's Report. If any report of the Cdn. Borrower's
auditors contains any qualification which in the opinion of the
Required Lenders relates to a matter which has a Material Adverse
Effect.
(r) Reorganization. If there is any reorganization of a Restricted Party
and in consequence of such reorganization the applicable Restricted
Party is not the surviving entity of such reorganization, or if there
is any consolidation, merger or amalgamation of a Restricted Party with
any other Person except to the extent permitted under subsection
8.02(c).
(s) Material Adverse Effect. If, in the opinion of the Required Lenders
(which opinion will be conclusive), any event occurs which has a
Material Adverse Effect.
141
SECTION 9.01
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(t) Change of Control of a Restricted Party. Except for Dispositions of
shares of a Restricted Party permitted under subsection 8.02(g), if
there occurs without the prior written consent of the Required Lenders,
a change of control of a Restricted Party. For the purposes of this
Agreement, there will be a "change of control" if:
(i) with respect to any Restricted Party, there is a change of
"control" as defined in the Business Corporations Act
(Ontario); or
(ii) with respect to the Cdn. Borrower, the nominees of any single
Person (other than Allen Fracassi) or any single Person
(other than Allen Fracassi) together with such Person's
Associates and/or Affiliates comprise a majority of the board
of directors of the Cdn. Borrower.
(u) Pension Plans. If (i) any steps are instituted to terminate a Pension
Plan or a Non-U.S. Pension Plan in whole or in part if as a result of
such termination any Borrower could be required to make a contribution
to such Pension Plan or Non-U.S. Pension Plan, or could incur a
liability or obligation to such Pension Plan or Non-U.S. Pension Plan,
in excess of U.S. $10,000,000 (or the Equivalent Amount in any other
currency or currencies), or (ii) if a contribution failure occurs with
respect to any Pension Plan sufficient to give rise to a lien for an
amount in excess of U.S. $2,000,000 (or the Equivalent Amount in any
other currency or currencies) under section 302(f) of ERISA or if a
contribution failure occurs with respect to any Non-U.S. Pension Plan
sufficient to give rise to a lien or a deemed trust for an amount in
excess of U.S. $10,000,000 (or the Equivalent Amount in any other
currency or currencies) under Applicable Law or, (iii) if,
(x) a Pension Plan has an Unfunded Current Liability, there is any
withdrawal liability of a Restricted Party or any ERISA Affiliate
to any Pension Plan which is a multiemployer plan (as defined in
Section 4001(a)(3) of ERISA), any Restricted Party has incurred or
is likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) or
Non-U.S. Welfare Plan that provide benefits to retired employees
or other former employees (other than as required by Section 601
of ERISA) or Pension Plans or Non-U.S. Pension Plans, and a
condition exists or an event or transaction may occur with respect
to any Pension Plan or Non-U.S. Pension Plan or Non-U.S. Welfare
Plan; and
(y) there shall result from any such condition, event or events the
imposition or the granting of a Lien, or a liability or a material
risk of incurring a liability; and
142
SECTION 9.01
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(z) such Lien, or liability, individually, and/or in the aggregate, in
the opinion of the Required Lenders, has had, or could reasonably
be expected to have, a Material Adverse Effect.
1.092 REMEDIES
--------
(1) Upon the occurrence of any Event of Default, and at any time thereafter
if the Event of Default shall then be continuing, the Administrative Agent with
the consent of the Required Lenders may, and upon written request by the
Required Lenders shall, take any or all of the following actions: (i) by
written notice to the Cdn. Borrower declare all principal amounts with respect
to Accommodation, all amounts payable with respect to outstanding Bankers'
Acceptances and BA Equivalent Notes as provided for in subsection 2.05(8), all
amounts payable with respect to outstanding Letters of Credit as provided for in
subsection 2.06(5), and all accrued interest, fees and other amounts hereunder
to be, whereupon the same shall become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrowers; (ii) by written notice to the Cdn.
Borrower declare the Credit and the Commitments to be terminated, whereupon the
same shall terminate immediately and all standby fees, availment fees and other
amounts accrued under the Credit Documents shall immediately become due and
payable without any further notice of any kind; provided however that if an
Event of Default described in subsections 9.01(i), (j), (k), (l) or (m) and
relative to either Borrower shall occur, the result which would otherwise occur
only on the giving of notice by the Administrative Agent to the Cdn. Borrower as
specified in clauses (i) and (ii) above shall occur automatically without the
giving of any such notice; (iii) realize upon the Security and any other
security applicable to the liability of any of the Restricted Parties under the
Credit Documents; and (iv) without limitation, exercise any other action, suit,
remedy or proceeding authorized or permitted by any Credit Documents or any
other agreement, at law, in equity, under statute or otherwise.
(2) If any Restricted Party shall fail to comply with any covenant
contained in any Credit Document that is applicable to it, the Administrative
Agent may satisfy the obligations of such Restricted Party with respect to such
covenant, and all costs and expenses thereby incurred by or on behalf of the
Administrative Agent shall be reimbursed by the Borrowers to the Administrative
Agent immediately.
1.093 BENEFIT OF SECURITY; SET-OFF; SHARING OF PAYMENTS.
--------------------------------------------------
(1) Subject to subsection 9.03(5), all Security shall be held for the
Rateable benefit of the Administrative Agent, the Other Agents, the Lenders and
their respective Eligible Affiliates (collectively the "SECURED PARTIES"), and
all proceeds from the Security which are distributable to the Secured Parties
shall be applied for the Rateable benefit of the Secured Parties irrespective
of any priority to which any Secured Party may otherwise be entitled.
Notwithstanding the foregoing or any other provision of any of the Credit
Documents or the Lender/Borrower
143
SECTION 9.03
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Hedging Arrangements (collectively the "SECURED PARTY DOCUMENTS"), if there
shall exist at any time any amount payable by any Secured Party to any other
Secured Party pursuant to any provision of any Secured Party Document, then
such amount shall be taken into account when calculating, and an appropriate
portion of such amount shall be paid from, any proceeds of Security otherwise
payable to such first Secured Party.
(2) Each Borrower agrees that, upon the occurrence of an Event of Default,
in addition to (and without limitation of) any right of set-off, bankers' lien,
counterclaim or other right or remedy that any Secured Party may otherwise
have, each Secured Party shall be entitled, at its option, but subject to
subsection 9.03(3), to offset any and all balances held by it for the account
of such Borrower at any of its offices or branches, in any currency, against
any and all amounts owed by such Borrower to such Secured Party under any
Secured Party Document (regardless of whether any such balances are then due or
payable to such Borrower), in which case such Secured Party shall promptly
notify such Borrower and the Administrative Agent thereof; provided that such
Secured Party's failure to give any such notice shall not affect the validity
thereof. Any Person purchasing an interest in the obligations of any Borrower
as contemplated by subsection 9.03(3) may exercise all rights of set-off,
bankers' lien, counterclaim or similar rights with respect to such interest as
fully as if such obligations had been originally incurred to such Person and
such Person were the holder thereof.
(3) Each Secured Party (a "SURPLUS SECURED PARTY") that receives any
payment or recovery (except (i) interest and fees paid as required pursuant to
the Credit Documents prior to the acceleration of any payment or the
termination of the Credit and the Commitments pursuant to Section 9.02, (ii)
payments made in accordance with subsections 8.01(s) or 9.02(2) or Articles
Four or Five prior to the acceleration of any payment or the termination of the
Credit and the Commitments pursuant to Section 9.02 (including any prepayment
of any or all amounts owing under the Credit Documents prior to the Maturity
Date), (iii) payments made by a Borrower to a Secured Party under a
Lender/Borrower Hedging Arrangement between such Borrower and such Secured
Party, in accordance with the provisions of such Hedging Arrangement, prior to
the acceleration of any payment or the termination of the Credit and the
Commitments pursuant to Section 9.02, and (iv) any payment pursuant to this
subsection 9.03(3)) from, or from the property of, any Restricted Party in
respect of any obligation of a Restricted Party to such Secured Party under any
Secured Party Document (whether by voluntary payment, by realization of any
security held by such Secured Party, by exercise of a right of set-off or
banker's lien, by counterclaim or cross action, by the enforcement of any of
the Secured Party Documents, by reason of any priority afforded in any
insolvency proceeding, or otherwise) in an amount which, relative to the
corresponding amounts received by the other Secured Parties (the "DEFICIENT
SECURED PARTIES"), is a greater proportion than the proportion which the
obligations of such Borrower to the Surplus Secured Party under the Secured
Party Documents bears to the obligations of such Borrower to the Deficient
Secured Parties under the Secured Party Documents immediately prior to such
receipt (in each case without regard to any Excess Amounts as defined in
subsection 9.03(5)), the Surplus Secured Party shall purchase for cash
144
SECTION 9.03
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from the Deficient Secured Parties, without recourse, an interest in the
obligations of the Restricted Parties to the Deficient Secured Parties under
the Secured Party Documents in such amount as shall result in a Rateable
participation (subject to subsection 9.03(5)) by all of the Secured Parties in
the obligations of the Restricted Parties to all of the Secured Parties under
the Secured Party Documents (provided that, to the extent that the Secured
Parties determine that the same is practicable, any such purchase will be
structured to minimize any increase of the amount for which any Borrower is
liable in respect of Taxes pursuant to Section 5.03 and, if requested by the
Administrative Agent, any such purchase shall be accompanied by an indemnity in
favour of the Administrative Agent for any liability which the Administrative
Agent may incur to any Governmental Authority in connection with any such
increased Taxes for which any Restricted Party becomes liable pursuant to
Section 5.03); provided, however, that if the Surplus Secured Party is
thereafter required to relinquish all or any portion of such excess payment or
recovery to any Person (other than to the Deficient Secured Parties as provided
herein), such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest. The Administrative Agent,
upon consultation with the applicable Secured Parties, shall have the power to
settle any documentation required to evidence any such purchase or restoration
and, if deemed advisable by the Administrative Agent, to execute any document
as attorney for any Secured Party in order to complete any such purchase or
restoration. The Borrowers acknowledge that the foregoing arrangements are to
be settled by the Secured Parties among themselves, and the Borrowers expressly
consent to the foregoing arrangements among the Secured Parties.
(4) Nothing contained in the Secured Party Documents shall require any
Secured Party to exercise any right, or shall affect the right of any Secured
Party to exercise and retain the benefits of exercising any right, with respect
to any indebtedness or obligation of any of the Borrowers existing otherwise
than pursuant to the Secured Party Documents.
(5) Notwithstanding any other provisions of any of the Secured Party
Documents, the aggregate amount (the "EXCESS AMOUNT") of any obligations owing
by the Borrowers to a Secured Party under a Tranche on the date of any
acceleration under Section 9.02 which are in excess of such Secured Party's
Commitment under such Tranche at such time shall not, as among the Secured
Parties, be treated as outstanding Accommodation from such Secured Party for
the purpose of determining the Secured Party's Rateable entitlement to proceeds
from the Security or other enforcement proceedings, with the intent that
proceeds from Security and from any other enforcement proceedings shall be
distributed first to the Secured Parties Rateably only on the basis of
outstanding Accommodation and other amounts ("PRIOR AMOUNTS") owing under the
Secured Party Documents which are not Excess Amounts and second, only after
payment of all such Prior Amounts (and all interest, fees and other amounts
payable relative to such Prior Amounts), Rateably to the Secured Parties on the
basis of all Excess Amounts.
145
SECTION 9.04
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1.094 REMEDIES CUMULATIVE
-------------------
The rights and remedies of the Administrative Agent, the Other Agents and
the Lenders under the Credit Documents are cumulative and in addition to and
not in substitution for any rights or remedies provided by any other agreement,
at law, in equity, under statute or otherwise.
1.095 APPROPRIATION OF MONEYS RECEIVED
--------------------------------
Each of the Administrative Agent, the Other Agents and the Lenders may
from time to time when an Event of Default has occurred and is continuing, but
subject to subsection 9.03(3), appropriate any moneys received by it from the
Restricted Parties or from any security held by such Person in or toward
payment of such of the obligations of the Borrowers or any other Restricted
Party under the Credit Documents as such Person in its sole discretion may see
fit.
1.096 NON-MERGER
----------
The taking of a judgment or judgments or any other action or dealing
whatsoever by the Administrative Agent, any Other Agent or any Lender in
respect of the Security will not operate as a merger of any indebtedness or
liability of either of the Borrowers to the Administrative Agent, any Other
Agent or any of the Lenders or in any way suspend payment or affect or
prejudice the rights, remedies and powers, legal or equitable, which the
Administrative Agent, any Other Agent or any Lender may have in connection with
such liabilities and the surrender, cancellation or any other dealings with any
security for such liabilities will not release or affect the liability of
either of the Borrowers or any other Restricted Party under any of the Credit
Documents or any security held by or on behalf of the Administrative Agent, the
Other Agents and the Lenders.
ARTICLE TEN
-----------
CONDITIONS PRECEDENT TO BORROWINGS
----------------------------------
1.101 CONDITIONS PRECEDENT TO THE INITIAL BORROWING
---------------------------------------------
No Lender shall be obliged to make available any Accommodation under the
initial Borrowing under the Credit unless all of the following have occurred
and/or are true:
(a) The Administrative Agent shall have received the relevant Notice of
Borrowing.
(b) The Administrative Agent shall have received the Security, which shall
have been duly registered and filed, and have the priority, as required
by Article Six and all necessary third party consents relative to the
issuance of the Security.
146
SECTION 10.01
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(c) The Administrative Agent shall have received a Corporate Separateness
Covenant and Assurance Agreement and, with respect to Independent
Subsidiaries which has consented or is required to join in the filing
of consolidated federal income tax returns in the United States of
America with one or more Restricted Parties, a Tax Sharing Agreement
duly authorized, executed and delivered by each of the Independent
Subsidiaries and shall have received a duly executed Non Recourse
Acknowledgement and Undertaking from each material creditor of an
Independent Subsidiary specified by the Co-Arrangers.
(d) There shall exist no Default or Event of Default on the initial
Borrowing Date and the completion of the Allwaste Acquisition, the Serv
Tech Acquisition, and the applicable Borrowing would not result in the
occurrence of a Default or an Event of Default, and each Borrower shall
have delivered to the Administrative Agent an Officer's Certificate to
such effect.
(e) All representations and warranties contained in Article Seven (applied
as if Allwaste and its Subsidiaries and Serv Tech and its Subsidiaries
were Restricted Parties at such time) shall be true on and as of the
initial Borrowing Date with the same effect as if such representations
and warranties had been made on and as of the initial Borrowing Date,
and each Borrower shall have delivered to the Administrative Agent an
Officer's Certificate to such effect.
(f) The Administrative Agent and the Lenders shall have received such
financial and other information relating to the Restricted Parties and
the Allwaste Acquisition and the Serv Tech Acquisition, as they shall
have reasonably requested.
(g) The Administrative Agent shall have received certified copies of, or
certificates of insurance for, all insurance maintained by the
Restricted Parties, Allwaste and its Subsidiaries and Serv Tech and its
Subsidiaries, and such insurance shall comply with the requirements of
the Credit Documents.
(h) Except for any Permitted Indebtedness, the Existing Bank Debt shall be
repaid in full, and the Existing Philip Bank Credit Agreement and the
Existing Allwaste and Serv Tech Credit Agreements shall be cancelled,
simultaneously with the obtaining of the initial Borrowing.
(i) Each Borrower shall have paid to each of the Administrative Agent, the
Other Agents and the Lenders all fees and other amounts which shall
have become due and payable by it to the Administrative Agent or such
Lender on or prior to the initial Borrowing Date and shall have paid
all fees payable to the advisors of the Administrative Agent and the
Lenders.
147
SECTION 10.01
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(j) All Liens over any property of any of the Restricted Parties and
Allwaste and its Subsidiaries, and if the Serv Tech Acquisition has
closed prior to such time or is closing at such time Serv Tech and its
Subsidiaries, other than Permitted Liens, shall have been released and
discharged or the Co-Arrangers shall have received undertakings and
assurances satisfactory to them respecting the release and discharge of
all such Liens.
(k) The following documents in form, substance and execution acceptable to
the Administrative Agent shall have been delivered to the
Administrative Agent:
(i) a certified copy of the constating documents and by-laws of
each Material Restricted Party (including Allwaste and Serv
Tech and those of their respective Subsidiaries which would
constitute Material Restricted Parties), and of all corporate
proceedings taken and required to be taken by each Material
Restricted Party (including Allwaste and Serv Tech and those
of their respective Subsidiaries which would constitute
Material Restricted Parties), to authorize the execution and
delivery of the Credit Documents to which it is a party and
the performance of the transactions by it contemplated in
such Credit Documents;
(ii) a certificate of incumbency for each Restricted Party
(including Allwaste and Serv Tech and those of their
respective Subsidiaries which would constitute Material
Restricted Parties) setting forth specimen signatures of the
persons authorized to execute the Credit Documents to which
it is a party;
(iii) a certificate of status or certificate of good standing, as
the case may be, for each Material Restricted Party
(including Allwaste and Serv Tech and those of their
respective Subsidiaries which would constitute Material
Restricted Parties);
(iv) the opinion of counsel for each of those Material Restricted
Parties (including Allwaste and Serv Tech and those of their
respective Subsidiaries which would constitute Material
Restricted Parties) designated by the Co-Arrangers as
material, such opinion to be in form and substance
satisfactory to the Lenders;
(v) the opinion of Canadian counsel for the Administrative Agent
and the Lenders, in form and substance satisfactory to the
Lenders;
(vi) an environmental compliance certificate from the Cdn.
Borrower's Executive Vice-President, Corporate and Regulatory
Affairs;
148
SECTION 10.01
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(vii) the most recent annual audit (and any subsequent addendums)
from the Cdn. Borrower's independent environmental auditor;
(viii) an Officer's Certificate of the Cdn. Borrower, together with
pro forma financial statements and other information in form
and detail satisfactory to the Required Lenders, giving
effect to the Allwaste Acquisition, the Serv Tech Acquisition
and the initial Borrowing hereunder and confirming the
interest and fee pricings under Article Three, and compliance
with the financial covenants under Section 8.03, after giving
effect to the Allwaste Acquisition and the Serv Tech
Acquisition, and such initial Borrowing; and
(ix) such other documents relative to the Credit Documents, the
transactions contemplated in the Credit Documents and the
Allwaste Acquisition, and the Serv Tech Acquisition, as the
Administrative Agent and the Lenders may reasonably require.
(l) The Allwaste Acquisition shall have closed, or shall close concurrently
with such Borrowing, on terms and conditions satisfactory to the
Administrative Agent and the Lenders.
(m) If the Serv Tech Acquisition has been completed prior to, or is
completed concurrently with, such Borrowing, such Acquisition shall
have been completed on the terms and conditions set forth in the Serv
Tech Agreement and Plan of Merger.
(n) The Restricted Parties and Allwaste will have obtained all required
consents and approvals to the completion of the Allwaste Acquisition
including without limitation any required consents and approvals under
existing Applicable Law and from all applicable Governmental
Authorities all of which shall be in full force and effect and in good
standing.
(o) The Borrowers shall have executed and delivered an agency fee letter to
the Administrative Agent in form and substance satisfactory to the
Administrative Agent.
(p) There shall not be instituted or pending any action, proceeding or
application before or by any Governmental Authority or any other Person
(i) challenging the Allwaste Acquisition which is effective to
restrain, prohibit or delay the Allwaste Acquisition, or (ii) which in
the opinion of the Required Lenders, acting reasonably, has a
reasonable likelihood of having a Material Adverse Effect.
149
SECTION 10.01
- 141 -
(q) The Co-Arrangers shall have received, reviewed and indicated their
satisfaction with the Cdn. Borrower's current 5 year financial
forecast.
(r) The initial Borrowing shall have taken place on or before August 31,
1997.
1.102 CONDITIONS PRECEDENT TO SUBSEQUENT BORROWINGS
---------------------------------------------
No Lender shall be obliged to make available any subsequent Accommodation
under the Credit unless all of the following have occurred and/or are true:
(a) The Administrative Agent shall have received the relevant Notice of
Borrowing (other than with respect to Borrowings under an Operating
Line which shall be subject to such notice requirements as may have
been agreed to by the Cdn. Borrower and the Cdn. Operating Lender and
by the U.S. Borrower and each of the U.S. Operating Lenders).
(b) There shall exist no Default or Event of Default on the applicable
Borrowing Date and the applicable Borrowing would not result in the
occurrence of a Default or an Event of Default, and the applicable
Borrower shall have delivered to the Administrative Agent, if so
requested by the Administrative Agent, an Officer's Certificate to such
effect.
(c) After giving effect to the applicable Borrowing the Borrowers will
continue to be in compliance with the Debt to EBITDA Covenant Ratio
requirements set forth in Section 8.03, and the applicable Borrower
shall have delivered to the Administrative Agent, if so requested by
the Administrative Agent, an Officer's Certificate to such effect.
(d) The representations and warranties contained in Article Seven as the
same may have been modified prior to such time as provided for in
Section 7.02 shall be true on and as of the applicable Borrowing Date
with the same effect as if such representations and warranties had been
made on and as of the applicable Borrowing Date, and the applicable
Borrower shall have delivered to the Administrative Agent, if so
requested by the Administrative Agent, an Officer's Certificate to such
effect.
(e) All conditions specified in Section 10.01, to the extent not previously
satisfied for any reason, shall have been satisfied.
(f) All conditions required to be complied with by the applicable Borrowing
Date pursuant to any undertakings delivered to the Administrative Agent
by a
150
SECTION 10.02
- 142 -
Restricted Party on the Closing Date or in connection with the initial
Borrowing shall have been satisfied and fulfilled.
(g) If at the time of such Borrowing any Margin Stock is pledged or
required to be pledged pursuant to the Security, all actions required
to be taken pursuant to subsection 8.01(u) shall have been taken to the
reasonable satisfaction of the Administrative Agent.
ARTICLE ELEVEN
--------------
THE ADMINISTRATIVE AGENT AND OTHER AGENTS
-----------------------------------------
1.111 APPOINTMENT
-----------
The Lenders, the Other Agents and their Eligible Affiliates hereby appoint
Canadian Imperial Bank of Commerce to act as their administrative agent as
herein specified and, except as may be specifically provided to the contrary
herein, each of the Lenders hereby irrevocably authorizes Canadian Imperial Bank
of Commerce, as the agent of such Lender, to take such action on its behalf
under or in connection with the Credit Documents and to exercise such powers
thereunder as are delegated to the Administrative Agent by the terms thereof and
such other powers as are reasonably incidental thereto which it may be necessary
for the Administrative Agent to exercise in order that the provisions of the
Credit Documents are carried out. The Lenders hereby acknowledge and agree that
the Administrative Agent is the holder of an irrevocable power of attorney from
the Lenders for the purpose of holding any of the Security or any other security
granted by any Person with respect to the liabilities of the Restricted Parties
under the Credit Documents, and the Administrative Agent hereby agrees to act in
such capacity. The Lenders hereby designate Bankers Trust Company to act as the
Syndication Agent, Canadian Imperial Bank of Commerce and Bankers Trust Company
to act as Co-Arrangers and Dresdner Kleinwort Benson and Royal Bank of Canada to
act as Documentation Agents, in each case to act in such capacities as specified
in this Agreement and in the other Credit Documents. The Administrative Agent
and each Other Agent may perform any of its duties under the Credit Documents by
or through its agents. The Restricted Parties shall not be concerned to enquire
whether the powers which the Administrative Agent is purporting to exercise have
become exercisable or otherwise as to the propriety or regularity of any other
action on the part of the Administrative Agent, and accordingly insofar as the
Restricted Parties are concerned the Administrative Agent shall for all purposes
hereof be deemed to have authority from the Lenders to exercise the powers and
take the actions which are in fact exercised and taken by it.
151
SECTION 11.02
- 143 -
1.112 INDEMNITY FROM LENDERS
----------------------
The Lenders, the Other Agents, the Administrative Agent and their Eligible
Affiliates agree to Rateably indemnify the Administrative Agent and the Other
Agents (to the extent that such Person is not promptly reimbursed by the
Borrowers on demand) from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any nature or kind whatsoever which may be imposed on,
incurred by, or asserted against the Administrative Agent in its capacity as
administrative agent hereunder or any Other Agent in its capacity as an Other
Agent hereunder which in any way relate to or arise out of the Credit Documents
or any action taken or omitted by such Person in such capacity under the Credit
Documents; provided that no Lender or Eligible Affiliate shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements which result from
such Person's gross negligence or wilful misconduct. Without limitation, each
Lender, each Other Agent and each of their Eligible Affiliates agrees to
reimburse the Administrative Agent promptly upon demand for its Rateable share
of out-of-pocket expenses (including the fees and disbursements of counsel)
incurred by the Administrative Agent in connection with the preparation of the
Credit Documents and the determination or preservation of any rights of the
Administrative Agent, the Other Agents, the Lenders or their respective
Eligible Affiliates under, or the enforcement of, or legal advice in respect of
rights or responsibilities under, the Credit Documents, to the extent that the
Administrative Agent is not promptly reimbursed for such expenses by the
Borrowers on demand.
1.113 EXCULPATION
-----------
None of the Administrative Agent or any Other Agent shall have any duties
or responsibilities except those expressly set forth in the Credit Documents.
None of the Administrative Agent, any Other Agent nor any of their respective
officers, directors, employees or agents shall be liable for any action taken
or omitted to be taken under or in connection with the Credit Documents, unless
such act or omission constitutes gross negligence or wilful misconduct. The
duties of the Administrative Agent and the Other Agents shall be mechanical and
administrative in nature; none of the Administrative Agent or any Other Agent
shall have by reason of the Credit Documents a fiduciary relationship with any
Lender and nothing in the Credit Documents, express or implied, is intended to
or shall be construed as to impose upon the Administrative Agent or any Other
Agent any obligation except as expressly set forth therein. None of the
Lenders shall have any duties or responsibilities to any of the other Lenders
except as expressly set forth in the Credit Documents. None of the
Administrative Agent or any Other Agent shall be responsible for any recitals,
statements, representations or warranties in any of the Credit Documents or
which may be contained in any other document subsequently received by the
Administrative Agent, any Other Agent or the Lenders from or on behalf of any
Restricted Party or any Independent Subsidiary or for the authorization,
execution, effectiveness, genuineness, validity or enforceability of any of
152
SECTION 11.03
- 144 -
the Credit Documents, and none of the Administrative Agent or any Other Agent
shall be required to make any inquiry concerning the performance or observance
by any Restricted Party or any Independent Subsidiary of any of the terms,
provisions or conditions of any of the Credit Documents. Each of the Lenders
severally represents and warrants to the Administrative Agent and the Other
Agents that it has made and will continue to make such independent
investigation of the financial condition and affairs of the Restricted Parties
as such Lender deems appropriate in connection with its entering into of any of
the Credit Documents and the making and continuance of any Accommodation
hereunder, that such Lender has and will continue to make its own appraisal of
the credit worthiness of the Restricted Parties and that such Lender in
connection with such investigation and appraisal has not relied upon any
information provided to such Lender by the Administrative Agent or by any Other
Agent.
1.114 RELIANCE ON INFORMATION
-----------------------
The Administrative Agent and each Other Agent shall be entitled to rely
upon any writing, notice, statement, certificate, facsimile, telex or other
document or communication believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and, with respect to
all legal matters pertaining to the Credit Documents and its duties thereunder,
upon the advice of counsel selected by it.
1.115 KNOWLEDGE AND REQUIRED ACTION
-----------------------------
None of the Administrative Agent nor any Other Agent shall be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
(other than the non-payment of any principal, interest or other amount to the
extent the same is required to be paid to the Administrative Agent for the
account of the Lenders) unless the Administrative Agent or such Other Agent has
received notice from a Lender or a Borrower specifying such Default or Event of
Default and stating that such notice is given pursuant to this Section. In the
event that the Administrative Agent receives such a notice, it shall give
prompt notice thereof to the Lenders, and shall also give prompt notice to the
Lenders of each non-payment of any amount required to be paid to the
Administrative Agent for the account of the Lenders. The Administrative Agent
shall, subject to Section 11.06, take such action with respect to such Default
or Event of Default as shall be directed by the Lenders in accordance with this
Article; provided that, unless and until the Administrative Agent shall have
received such direction the Administrative Agent may, but shall not be obliged
to, take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interest of
the Lenders; and provided further that the Administrative Agent in any case
shall not be required to take any such action which it determines to be
contrary to the Credit Documents or to any Applicable Law.
153
SECTION 11.06
- 145 -
1.116 REQUEST FOR INSTRUCTIONS
------------------------
The Administrative Agent may at any time request instructions from the
Lenders with respect to any actions or approvals which, by the terms of any of
the Credit Documents, the Administrative Agent is permitted or required to take
or to grant, and the Administrative Agent shall be absolutely entitled to
refrain from taking any such action or to withhold any such approval and shall
not be under any liability whatsoever as a result thereof until it shall have
received such instructions from the Lenders. No Lender shall have any right of
action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting under the Credit
Documents in accordance with instructions from the Lenders or the Required
Lenders, as applicable. The Administrative Agent shall in all cases be fully
justified in failing or refusing to take or continue any action under the
Credit Documents unless it shall have received further assurances to its
satisfaction from the Lenders and their Eligible Affiliates of their
indemnification obligations under Section 11.02 against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take such action, and unless it shall be secured in respect thereof as it may
deem appropriate.
1.117 EXCHANGE OF INFORMATION
-----------------------
The Borrowers agree that each Lender, the Administrative Agent and the
Other Agents may provide to the other Lenders or the Administrative Agent or
any Other Agent such information concerning the financial position and property
and operations of the Restricted Parties as, in the opinion of such Lender or
the Administrative Agent, is relevant to the ability of each of the Restricted
Parties to fulfil its respective obligations under or in connection with the
Credit Documents.
1.118 THE ADMINISTRATIVE AGENT AND THE OTHER AGENTS, INDIVIDUALLY
-----------------------------------------------------------
With respect to its Commitments, the Accommodation made available by it
and the Credit Documents to which it is a party, each of the Persons which is
the Administrative Agent or an Other Agent and their respective Affiliates
shall have the same rights and powers under the Credit Documents as any other
Lender and may exercise such rights and powers as though such Person were not
the Administrative Agent or an Other Agent or an Affiliate of the
Administrative Agent or an Other Agent, and the term "Lenders" and "Required
Lenders" shall, unless the context clearly otherwise indicates, include each
such Person in its individual capacity. It is understood and agreed by all of
the Lenders that each of the Persons which is the Administrative Agent or an
Other Agent, either directly or through its Affiliates, from time to time
accepts deposits from, lends money to, provides underwriting, consulting and
advisory services to, and generally engages in banking, securities, advisory
and other related and ancillary businesses with the Restricted Parties and
their Affiliates and Associates otherwise than as a Lender under the Credit
Documents and may continue to do so as if it were not the
154
SECTION 11.08
- 146 -
Administrative Agent or an Other Agent under the Credit Documents and shall
have no duty to account to any of the Lenders with respect to any such
dealings.
1.119 RESIGNATION AND TERMINATION
---------------------------
If at any time (i) the Administrative Agent or any Other Agent shall deem
it advisable, in its sole discretion, it may deliver to each of the Lenders and
the Borrowers written notification of its resignation insofar as it acts on
behalf of the Lenders pursuant to this Article or (ii) the Administrative Agent
or any Other Agent is in default of any of its obligations hereunder and the
Lenders shall deem it advisable, in their sole discretion, they may deliver to
the Administrative Agent or such Other Agent, as the case may be, and the
Borrowers written notification of the termination of the Administrative Agent's
or such Other Agent's, as the case may be, authority to act on behalf of the
Lenders pursuant to this Article. Any such resignation or termination of the
Administrative Agent is to be effective upon the date of the appointment by the
Lenders of a successor which shall assume all of the rights, powers, privileges
and duties of the Administrative Agent under the Credit Documents, which
appointment shall be promptly made from among the remaining Lenders and written
notice thereof shall be given to the Borrowers concurrently with such
appointment. The Borrowers shall have the right to approve any successor
Administrative Agent to be appointed by the Lenders as aforesaid at any time
that no Default or Event of Default has occurred and is continuing, provided
that such approval shall not be unreasonably withheld or delayed. Any such
resignation or termination of any Other Agent is to be effective immediately.
If in the case of resignation by the Administrative Agent no appointment of a
successor Administrative Agent has been made by the Lenders and approved by the
Borrowers within 30 days, the resigning Administrative Agent may make such
appointment without the approval of the Borrowers from among the remaining
Lenders on behalf of the Lenders, and shall forthwith give notice of such
appointment to the Lenders and the Borrowers.
1.1101 ACTIONS BY LENDERS
------------------
(1) Any approval (including without limitation any approval of or
authorization for any amendment to any of the Credit Documents), instruction or
other expression of the Lenders under any of the Credit Documents may be
obtained by an instrument in writing signed in one or more counterparts by the
Required Lenders, or where required by subsection 11.10(3) all of the Lenders
(which instrument in writing, for greater certainty, may be delivered by
facsimile).
(2) Any approval (including without limitation any approval of or
authorization for any amendment to any of the Credit Documents), instruction or
other expression of the Lenders hereunder may also be included in a resolution
that is submitted to a meeting or adjourned meeting of the Lenders duly called
and held for the purpose of considering the same as hereinafter provided and
shall be deemed to have been obtained if such resolution is passed by the
affirmative vote evidenced in writing of the Required Lenders at a meeting at
which a
155
SECTION 11.10
- 147 -
quorum is present. A meeting of Lenders may be called by the Administrative
Agent and shall be called by the Administrative Agent upon the request of any
three Lenders. Every such meeting shall be held in the City of Toronto or at
such other reasonable place as the Administrative Agent may approve. At least
seven days notice of the time and place of any such meeting shall be given to
the Lenders and shall include or be accompanied by a draft of the resolutions
to be submitted to such meeting, but the notice may state that such draft is
subject to amendment at the meeting or any adjournment thereof. The Required
Lenders who are present in person or by proxy at the time and place specified
in the notice shall constitute a quorum for the purpose of the transaction of
business. A person nominated in writing by the Administrative Agent shall be
chairman of the meeting. Upon every poll taken at any such meeting every
Lender who is present in person or represented by a proxy duly appointed in
writing (who need not be a Lender) shall be entitled to one vote in respect of
each U.S. $1 of its Commitment (or if the Commitments have been terminated each
U.S. $1 of the U.S. Dollar Amount of its outstanding Accommodation). In
respect of all matters concerning the convening, holding and adjourning of
Lenders' meetings, the form, execution and deposit of instruments appointing
proxies and all other relevant matters, the Administrative Agent may from time
to time make such reasonable regulations not inconsistent with this subsection
11.10(2) as it shall deem expedient and any regulations so made by the
Administrative Agent shall be binding upon the Borrowers, the Administrative
Agent and the Lenders.
(3) Notwithstanding subsections 11.10(1) and (2):
(a) the consent of all of the Lenders evidenced by an instrument in writing
or, if all of the Lenders are present at a meeting of Lenders as
aforesaid, by an affirmative vote of all of the Lenders, will be
required for (i) any amendment to, postponement of, or discharge of all
or substantially all of the Security (other than a release of Security
over any property which a Restricted Party is expressly permitted to
Dispose of pursuant to the provisions of this Agreement) or any release
of the Cdn. Borrower from its guarantee forming part of the Security,
(ii) any reduction to the amount of, or any extension to the date of,
payment of any principal, interest or fees under this Agreement, (iii)
any change to or waiver of clauses 9.01(a), (b), (i), (j), (k), (l) or
(m) as they relate to a Borrower, Sections 9.02 and 9.03 or this
Subsection, or (iv) any reduction in the percentage specified in the
definition of Required Lenders or in any percentage of Lenders
specified in any Credit Document as being required for the Lenders to
take any action (it being understood that, with the consent of the
Required Lenders, additional extensions of credit pursuant to this
Agreement may be included in the determination of the Required Lenders
on substantially the same basis as the extensions of the Commitments
are included on the Closing Date);
(b) except for any change in a Commitment otherwise expressly provided for
in this Agreement, the consent of the particular Lender will be
required for any change in
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SECTION 11.10
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the Commitment of such Lender (it being understood that neither a
reallocation of Commitments among Tranches as permitted under this
Agreement nor waivers or modifications of conditions precedent,
covenants, Defaults or Events of Default or of a mandatory reduction of
the total Commitment shall constitute an increase of the Commitment of
any Lender);
(c) the consent of the Administrative Agent will be required for any change
with respect to the duties or liabilities of the Administrative Agent
under the Credit Documents; and
(d) the consent of an Other Agent will be required for any change with
respect to the duties or liabilities of such Other Agent under any of
the Credit Documents.
(4) An instrument in writing from the Required Lenders or, where
applicable, all of the Lenders as provided for in subsection 11.10(1) and a
resolution passed pursuant to subsection 11.10(2) ( any such instrument in
writing or resolution being an "APPROVAL INSTRUMENT") shall be binding upon all
of the Lenders, the Other Agents, the Administrative Agent and their respective
Eligible Affiliates, and the Administrative Agent (subject to the provisions for
its indemnity contained in this Agreement) shall be bound to give effect thereto
accordingly. For greater certainty, to the extent so authorized in the Approval
Instrument, the Administrative Agent shall be entitled (but not obligated) to
execute and deliver on behalf of the Administrative Agent, the Other Lenders,
all of the Lenders and all of their respective Eligible Affiliates, without the
requirement for the execution by any other Person or Persons, any consents,
waivers, documents or instruments (including without limitation any amendment to
any of the Credit Documents) necessary or advisable in the opinion of the
Administrative Agent to give effect to the matters approved by the Required
Lenders or all of the Lenders, as the case may be, in any Approval Instrument.
1.111 PROVISIONS FOR BENEFIT OF LENDERS ONLY
--------------------------------------
The provisions of this Article (other than Section 11.07, the last sentence
of Section 11.01 and the last sentence of subsection 11.10(4)) relating to the
rights and obligations of the Lenders, the Other Agents, the Administrative
Agent and their respective Eligible Affiliates inter se shall be operative as
between the Lenders, the Other Agent, the Administrative Agent and their
respective Eligible Affiliates only, and the Borrowers shall not have any rights
under or be entitled to rely for any purposes upon such provisions.
157
SECTION 12.01
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ARTICLE TWELVE
--------------
MISCELLANEOUS
-------------
1.121 PARTICIPATIONS, ASSIGNMENTS AND TRANSFERS
-----------------------------------------
(1) In addition to any transfer required by Section 9.03 to be made to any
other Lender or required by Applicable Law to be made to any Person, a Lender
may assign or transfer (a "SYNDICATION"), or grant participations (a
"PARTICIPATION") in, or enter into any other arrangement (a "CREDIT
DERIVATIVE") for the purpose of sharing, transferring or otherwise mitigating
its risks with respect to, all or any part of its rights and obligations in
respect of its Commitments or any Accommodation from time to time outstanding
from it to such Persons ("PARTICIPANTS"), at such times and upon such terms as
it may determine, without any obligation to obtain any consent from any
Restricted Party, in accordance with the following provisions:
(a) With respect to the grant of any Participation or any Credit
Derivative:
(i) the granting Lender shall remain fully liable for all of its
obligations under the Credit Documents to the same extent as
if such Participation or Credit Derivative had not been
granted;
(ii) all amounts payable by the Borrowers to the granting Lender
under this Agreement shall be determined as if such Lender
had not granted such Participation or Credit Derivative and
as if such Lender were funding all Accommodation included in
such Participation or Credit Derivative in the same way that
it is funding all Accommodation made available by it in which
no Participation or Credit Derivative has been granted;
(iii) the granting Lender shall administer such Participation or
Credit Derivative on behalf of the applicable Participant,
and neither such Participant nor any Restricted Party shall
have any rights against or obligations to, or deal directly
with, each other in respect of such Participation or Credit
Derivative; and
(iv) the granting Lender shall ensure that its arrangements with
respect to any such Participation or Credit Derivative do not
require the granting Lender to consult with the applicable
Participant with respect to any consents, approvals or votes
from such granting Lender relative to any matter except for
consents, approvals, amendments or waivers which would (x)
extend the final scheduled maturity of any Accommodation in
which such Participant is participating or reduce the rate or
extend the time for payment of interest or fees thereon or
reduce the principal amount thereof, or increase the amount
of the Participant's participation over the amount thereof
then in effect (it being understood that a waiver of any
Default or
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SECTION 12.01
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Event of Default or of a mandatory reduction in the
Commitments shall not constitute a change in the terms of
such participation, and that an increase in the available
portion of any Commitment of any Lender shall be permitted
without the consent of any Participant if the Participant's
participation is not increased as a result thereof), (y)
consent to the assignment or transfer by a Borrower of any of
its rights or obligations under this Agreement, or (z)
release all or substantially all of the Security (except as
expressly provided for in the Credit Documents).
(b) with respect to any such Syndication:
(i) no such assignment or transfer shall be made at any time that
an Event of Default is not continuing unless the applicable
assignee or transferee (the "ASSIGNEE") is an Affiliate of
the assigning or transferring Lender (the "ASSIGNOR") or is
an Eligible Transferee. The term "ELIGIBLE TRANSFEREE" shall
mean and include a commercial bank, trust company, insurance
company, financial institution, any fund (a "FUND") that
invests in bank loans and any other "accredited investor" (as
defined in Regulation D of the United States Securities and
Exchange Act). In the case of any Lender that is a Fund, any
other Fund which is managed by the same investment advisor of
such Lender or by an Affiliate of such investment advisor
shall be deemed to be an Affiliate of such Lender for the
purposes of this subsection;
(ii) at the time of any such assignment or transfer to an Assignee
which will, as a result of such assignment or transfer,
become a U.S. Lender, which is not already a U.S. Lender and
which is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) for United States Federal
income tax purposes, the Assignee shall, to the extent
legally entitled to do so, provide to the U.S. Borrower in
the case of a Lender described in clause (a) or (b) of
subsection 5.03(3), the forms described in such clause (a) or
(b), as the case may be;
(iii) the Assignor shall obtain from the Assignee an undertaking of
the Assignee, addressed to the parties to this Agreement (as
such parties may be constituted at such time) and
substantially in the form of Schedule 24 (the "UNDERTAKING"),
whereby the Assignee agrees to be bound by this Agreement in
the place and stead of the Assignor to the extent of the
rights and obligations of the Assignor in respect of the
amount of its Commitments that has been assigned or
transferred to the Assignee and the assignment or transfer
shall be made by way of an assignment and
159
SECTION 12.01
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assumption agreement between the Assignor and the Assignee
substantially in the form of Schedule 25;
(iv) no such assignment or transfer other than an assignment or
transfer to another Lender or to any Affiliate of any Lender
shall be made to any Person if the Assignor has not received
the prior written consent of the Administrative Agent, such
consent not to be unreasonably withheld or delayed;
(v) subject to paragraph 12.01(1)(h), no such assignment or
transfer shall be made by any Cross Border Lender at any time
that an Event of Default is not continuing unless (a) the
assignment or transfer is made by both the applicable Cdn.
Cross Border Lender and its Affiliated U.S. Cross Border
Lender, (b) the assignment or transfer is of a Tranche 2
Combined Commitment of such Lenders, and (c) the assignment
or transfer is made on a combined basis to a Person which is
a financial institution in Canada which will agree to make
available the full amount of the assigned Tranche 2 Combined
Commitment as a Cdn. Cross Border Lender under Tranche 2 to
the Cdn. Borrower in Canada and an Affiliated Person which is
a U.S. financial institution which will agree to make
available the full amount of the assigned Tranche 2 Combined
Commitment as its Affiliated U.S. Cross Border Lender under
Tranche 2 to the U.S. Borrower in the United States of
America;
(vi) no such assignment or transfer shall be made by the Cdn.
Operating Lender under the Cdn. Operating Line unless such
assignment or transfer is of all of the Cdn. Operating
Lender's Commitment under such Tranche;
(vii) no such assignment or transfer shall be made by a U.S.
Operating Lender under the U.S. Operating Line from such U.S.
Operating Lender unless such assignment or transfer is of all
of such U.S. Operating Lender's Commitment under such U.S.
Operating Line;
(viii) subject to paragraph 12.01(1)(h), no such assignment or
transfer shall be made by any LC Lender at any time that an
Event of Default is not continuing unless (a) the assignment
or transfer is made by both the applicable Cdn. LC Lender and
its Affiliated U.S. LC Lender, (b) the assignment or transfer
is of a Combined LC Commitment of such Lenders, and (c) the
assignment or transfer is made on a combined basis to a
Person which is a financial institution in Canada which will
agree to make available the full amount of the assigned
Combined LC Commitment as a
160
SECTION 12.01
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Cdn. LC Lender under the LC Line to the Cdn. Borrower and an
Affiliated Person which is a U.S. financial institution which
will agree to make available the full amount of the assigned
Combined LC Commitment as its Affiliated U.S. LC Lender under
the LC Line to the U.S. Borrower;
(ix) each Borrower agrees that, subject to the subsection 2.08(2)
and clause (x) of this paragraph requiring recordation of
such assignment or transfer in the Registry of Commitments,
such assignment or transfer shall be effective upon the date
provided in the assignment or transfer agreement between the
Assignor and the Assignee (but in no event earlier than the
date that the relevant Undertaking is delivered by the
Assignee to the Administrative Agent), and the Assignee shall
thereafter be and be treated as a Lender for all purposes of
the Credit Documents and shall, to the extent of the rights
and obligations assigned or transferred to it by the
Assignor, be entitled to the full benefits and subject to the
full obligations of the Assignor under the Credit Documents
to the same extent as if the Assignee were an original party
in respect of the rights and obligations assigned or
transferred to it, and the Assignor shall be released and
discharged accordingly;
(x) the Administrative Agent shall notify the Borrowers of the
identity, nationality and applicable lending office of the
Assignee and the rights and obligations assigned or
transferred to the Assignee immediately after the assignment
or transfer, and shall make the necessary entries and
recordings in the Registry of Commitments reflecting the
adjustments to the Commitments resulting from such assignment
or transfer which assignment or transfer and adjustments
shall not be effective until so recorded by the
Administrative Agent in the Registry of Commitments as
provided for in subsection 2.08(2), and the Borrowers shall
promptly following any written request from the
Administrative Agent execute and deliver such assurances as
may be reasonably requested by the Administrative Agent to
confirm any of the matters provided for in this Section
including, without limitation, the release and discharge
provided for in clause (ix) of this paragraph;
(xi) unless the Assignee is an Affiliate of the Assignor, the
Assignee shall be entitled to receive all principal, interest
and other amounts owing under this Agreement in respect of
any Accommodation that is included in the assignment or
transfer as aforesaid free from all equities or rights of
set-off or counterclaim between the Borrowers or any of them
and the Assignor
161
SECTION 12.01
- 153 -
and any intermediate assignee or transferee or other Person
entitled thereto, and all Persons may act accordingly;
(xii) the minimum amount of any assignment or transfer which is
less than the whole Commitment of the Assignor shall be U.S.
$5,000,000 or an amount in excess thereof which is a whole
multiple of U.S. $100,000; and
(xiii) the Assignor or the Assignee, as the case may be, shall pay
to the Administrative Agent at the time of any such
assignment or transfer to a Person who is not an Affiliate of
the Assignor an administration fee of U.S. $2,500 for each
Assignee relative to each such assignment or transfer
(provided that assignments or transfers to two Affiliated
Persons under Tranche 2 who will act as a Cdn. Cross Border
Lender and its Affiliated U.S. Cross Border Lender or to two
Affiliated Persons under the LC Line who will act as a Cdn.
LC Lender and its Affiliated U.S. LC Lender shall be treated
as one assignment or transfer to one Assignee).
(c) Each of the Borrowers, the Other Agents and the Lenders consents to
each and every assignment or transfer which may be made on or after the
date of this Agreement pursuant to this Section, and to the release and
discharge of each Assignor in accordance with clause (ix) of paragraph
of this Section.
(d) Each Assignee shall be deemed to have confirmed to the Administrative
Agent, the Other Agents and the Lenders that it has received a copy of
this Agreement together with such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
acquire such of the rights and obligations of the Assignor as have been
assigned or transferred to it, and each Assignee agrees that,
independently and without reliance upon the Administrative Agent, any
Other Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, it
will continue to make its own credit decisions in taking or not taking
actions under this Agreement, and further agrees that it will perform
in accordance with their terms all of the obligations which by the
terms of the Credit Documents are required to be performed by it as a
Lender.
(e) Any grant, assignment or transfer pursuant to this Section will not
constitute a repayment by the applicable Borrower to the granting
Lender or to the Assignor, as the case may be, of any Accommodation
included in such assignment or transfer, nor a new advance of such
Accommodation to such Borrower by the grantee or by the Assignee, as
the case may be, and the parties acknowledge that the applicable
Borrower's obligations under this Agreement with respect to any
162
SECTION 12.01
- 154 -
assigned or transferred Accommodation will continue and not constitute
new obligations.
(f) The Lenders, the Administrative Agent and the Other Agents may disclose
on a confidential basis to a potential or actual Participant or
Assignee such information concerning the Restricted Parties, the
Independent Subsidiaries and the Credit Documents as the Administrative
Agent, any Other Agent or any Lender may consider to be appropriate in
connection therewith, provided that such potential or actual
Participant or Assignee, as the case may be, shall be subject to the
provisions of Section 12.06.
(g) A Borrower may not, and, unless expressly permitted under this
Agreement, shall not permit any other Restricted Party to, assign or
transfer all or any of its rights or obligations under any Credit
Document without the prior written consent of all of the Lenders.
(h) Notwithstanding clauses 12.01(1)(b)(v) and 12.01(1)(b)(viii), the
Administrative Agent and the Cdn. Borrower may consent to an assignment
or transfer by an Assignor which would have the effect of adjusting the
Commitments under the Tranches of a Credit by all or a portion of the
amount assigned or transferred by each Assignor having regard to the
wish of the Assignor to become a Lender under a different Tranche of
such Credit with respect to the amount so assigned or transferred than
the Tranche under which such amount was held by the Assignor.
(i) To the extent that an assignment or transfer of all or any portion of a
Lender's Commitments and related outstanding Accommodation by way of a
Participation or a Credit Derivative pursuant to subsection 12.01(a) or
pursuant to this subsection would, at the time of such assignment or
transfer, result in increased costs under Section 5.03 or Section 5.04
in excess of those being charged by the applicable Assignor prior to
such assignment or transfer, then the applicable Borrower, in
accordance with and pursuant to the other provisions of this Agreement,
shall not be obligated to pay such excess increased costs (although the
Borrowers, in accordance with and pursuant to the other provisions of
this Agreement, shall be obligated to pay the costs which are not in
excess of those being charged by the applicable Assignor prior to such
assignment or transfer and any subsequent increased costs of the type
described above resulting from changes after the date of the such
assignment or transfer).
(2) Any Lender may pledge its interests in the Credit Documents in the
ordinary course of its business including to the United States Federal Reserve
or any other similar Governmental Authority and, with the consent of the
Administrative Agent, any Lender that is a
163
SECTION 12.01
- 155 -
Fund may pledge all or any portion of its interests in the Credit Documents to
its trustee in support of its obligations to its trustee.
1.122 WAIVER
------
No delay on the part of the Administrative Agent, any Other Agent or any
Lender in exercising any right or privilege under any Credit Document shall
operate as a waiver of such right or privilege, and no waiver of any Default or
Event of Default shall operate as a waiver of such Default or Event of Default
unless made in writing and signed by an authorized officer of the
Administrative Agent. No written waiver shall preclude the exercise by the
Administrative Agent, any Other Agent or any Lender of any right, power or
privilege under any Credit Document other than in respect of the specific
action or inaction covered by such waiver and strictly in accordance with the
terms of such waiver, or extend to or apply to any other Default or Event of
Default. No Lender shall be deemed to have waived, by reason of making
available any Accommodation under this Agreement, any Default or Event of
Default which has arisen by reason of any representation or warranty made or
deemed to have been made in any Credit Document proving to be false or
misleading.
1.123 FURTHER ASSURANCES
------------------
Each Borrower shall from time to time immediately upon request by the
Administrative Agent do, make and execute, and cause each of the other
Restricted Parties and each of their respective Subsidiaries to do, make and
execute, all such documents, acts, matters and things as may be reasonably
required by the Administrative Agent to give effect to the Credit Documents,
and to any assignment or transfer permitted by Section 12.01.
1.124 NOTICES
-------
Any notice or communication to be given under this Agreement (other than
telephone notice as specifically provided in this Agreement) may be effectively
given by delivering (whether by courier or personal delivery) the same at the
addresses set out on the signature pages of this Agreement (or with respect to
any Assignee pursuant to Section 12.01, to the address provided by such
Assignee to the Cdn. Borrower and the Administrative Agent) or by sending the
same by facsimile or prepaid registered mail to the parties at such addresses.
Any notice so mailed shall be deemed to have been received on the fifth
Business Day next following the mailing of such notice, provided that postal
service is in normal operation during such time. Any facsimile notice shall be
deemed to have been received on transmission (and receipt of confirmation of
transmission) if sent during normal business hours on a Business Day and, if
not, on the next Business Day following transmission. Any party may from time
to time notify the other parties, in accordance with the provisions of this
Section, of any change of its address
164
SECTION 12.04
- 156 -
which after such notification, until changed by like notice, shall be the
address of such party for all purposes of this Agreement.
1.125 DOMICILE OF ACCOMMODATION
-------------------------
The Accommodation made available by each Lender shall be made and carried
at the branch or office of such Lender set out opposite the name of such Lender
on the signature pages of this Agreement; provided that each Lender may make,
carry or transfer the Accommodation made available by it from, at or to any
other branch or office of such Lender, provided that if, on the basis of the
Applicable Law in effect and the circumstances existing as at the date of any
such transfer, such transfer increases the amount for which any Borrower is
liable with respect to Taxes pursuant to Section 5.03 or increased costs
pursuant to Section 5.04 compared to such amounts existing prior to such
transfer, such Lender shall not be entitled to receive from any Borrower, and
no Borrower shall be obligated to pay, such excess increased costs (although
the Borrowers, in accordance with and pursuant to the other provisions of this
Agreement, shall be obligated to pay the costs which are not in excess of those
being charged by such Lender prior to such transfer and any subsequent
increased costs of the type described above resulting from changes after the
date of such transfer).
1.126 CONFIDENTIALITY
---------------
Each of the Lenders will maintain on a confidential basis (except as
otherwise permitted under the Credit Documents or as required by Applicable Law)
all information relating to the Borrowers and their Subsidiaries provided to it
under the Credit Documents by such Borrower; provided, however, that a Lender
may share such information with those of its Affiliates which are lending
institutions (but for greater certainty not with any such Affiliates which are
brokers or investment dealers unless any such Affiliate is one institution which
has both a lending division and a broker dealer division, in which case such
information may not be shared with any members of the broker dealer division)
and provided further that this Section shall not apply to any information which
(i) was in the public domain at the time of communication to such Lender, (ii)
enters the public domain through no fault of such Lender subsequent to the time
of communication to such Lender, (iii) was in such Lender's possession free of
any obligation of confidence at the time of communication to such Lender, (iv)
was communicated to such Lender free of any obligation of confidence subsequent
to the time of initial communication to such Lender, (v) was communicated to any
Person free from any obligation of confidence subsequent to the time of
communication to such Lender (provided that any communication by a Restricted
Party shall be deemed to have been made in confidence unless otherwise indicated
by such Restricted Party) or (vi) is disclosed in order to permit the
Administrative Agent and the Lenders to enforce any of their rights under any of
the Credit Documents.
165
SECTION 12.07
- 157 -
1.127 CONFIRMATION TO CREDITORS OF INDEPENDENT SUBSIDIARIES
-----------------------------------------------------
The Administrative Agent, on behalf of itself, the Other Agents and the
Lenders, will execute and deliver from time to time such reasonable
confirmations as any material creditor of an Independent Subsidiary may request
confirming that, other than in respect of their interest in the shares of any
Independent Subsidiary subject to the Lien of the Security or in respect of any
claims made by a Restricted Party against an Independent Subsidiary as a
consequence of any dealings or relationships between such Persons, none of the
Administrative Agent, the Other Agents or any Lenders claim any Recourse
Against such Independent Subsidiary in connection with the debts and
liabilities of the Restricted Parties under the Credit Documents.
1.128 SURVIVAL
--------
All agreements, representations and warranties made in this Agreement
shall survive the execution and delivery of this Agreement and the obtaining of
Accommodation and all indemnities set forth in this Agreement, and all
obligations and liabilities under Sections 5.02, 5.03, 5.04 and 5.05, shall
survive the repayment of all Accommodation and the termination of this
Agreement.
1.129 QUANTITIES OF DOCUMENTS
-----------------------
Each Borrower agrees to provide to the Administrative Agent sufficient
quantities of all documents, reports, financial statements and other information
required under the Credit Documents to be provided to the Administrative Agent
so that there shall be copies for the Administrative Agent and each of the Other
Agents and the Lenders.
1.1201 REPRODUCTION OF DOCUMENTS
-------------------------
All Credit Documents and all documents relating to any Credit Documents,
including consents, waivers and modifications which may hereafter be executed,
documents received by the Administrative Agent, any Other Agent or the Lenders
in connection with the negotiation of this Agreement and the making available
of Accommodation, and financial statements, certificates and other information
previously or hereafter furnished to the Administrative Agent, any Other Agent
or the Lenders, may be reproduced by the Administrative Agent, the Other Agents
or the Lenders by any photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process and the Administrative Agent,
the Other Agents and the Lenders may destroy any original documents so
reproduced. Each Borrower agrees that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by the Administrative Agent, the Other Agents or the
Lenders in the regular course of
166
SECTION 12.10
- 158 -
business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
1.121 LANGUAGE
--------
The parties to this Agreement expressly request and require that this
Agreement, all other Credit Documents, and all related documents be drafted in
English. Les parties aux presentes conviennent et exigent que cette Convention
et tous les documents qui s'y rattachent soient rediges en Anglais.
1.122 COUNTERPARTS AND EFFECTIVENESS
------------------------------
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the same
instrument and shall become effective on the date when each of the parties to
this Agreement shall have signed a copy of this Agreement (whether the same or
different copies) and shall have delivered the same to the Administrative
Agent.
1.123 FACSIMILE COPIES
----------------
An executed copy of this Agreement may be delivered by any party to this
Agreement by facsimile. In such event such party shall immediately deliver to
the other parties an original copy of this Agreement executed by such party.
167
SECTION 12.14
- 159 -
1.124 BENEFIT OF AGREEMENT
--------------------
This Agreement shall be binding upon and enure to the benefit of the
parties to this Agreement and their respective successors and permitted
assigns.
IN WITNESS OF WHICH the parties to this Agreement have executed this
Agreement as of the day and year indicated on the first page of this Agreement.
ADDRESS: PHILIP SERVICES CORP,
100 King Street West
P.O. Box 2440 LCD 1 by: /s/ Marvin Boughton c/s
______________________________
Hamilton, Ontario name: Marvin Boughton
L8N 4J6 title: Chief Financial Officer,
Executive Vice President
Attention: Senior Vice President and
General Counsel
by: /s/ Colin Soule c/s
______________________________
Facsimile: (905) 521-9160 name: Colin Soule
title: Executive Vice President,
General Counsel
ADDRESS: PHILIP ENVIRONMENTAL
(DELAWARE), INC.
100 King Street West
P.O. Box 2440 LCD 1
Hamilton, Ontario by: /s/ Marvin Boughton
______________________________
L8N 4J6 name: Marvin Boughton
title: Chief Financial Officer,
Attention: Senior Vice President and Executive Vice President
General Counsel
Facsimile: (905) 521-9160 by: /s/ Colin Soule
______________________________
name: Colin Soule
title: Executive Vice President,
General Counsel
(signatures continued on the next following page)
168
- 160 -
(signatures continued from the preceding page)
ADDRESS: CANADIAN IMPERIAL BANK OF
COMMERCE
Loan Underwriting and (in its capacity as Administrative Agent)
Administration - Canada
Commerce Court West - 7
Toronto, Ontario by: /s/ Geoff Bond
M5L 1A2 ________________________________
name: Geoff Bond
title: Director
Attention: Manager - Agency
Facsimile: (416) 980-5151
ADDRESS: CANADIAN IMPERIAL BANK OF
COMMERCE
CIBC Wood Gundy (in its capacity as a Lender)
7th Floor
Commerce Court West
Toronto, Ontario by: /s/ Gerry L. Beauclair
M5L 1A2 ______________________________
name: Gerry L. Beauclair
title: Managing Director
Attention: Managing Director
Facsimile: (416) 980-8384
BRANCH OFFICE FOR ACCOMMODATION:
Main Branch
Commerce Court
Toronto, Ontario
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ADDRESS: CIBC INC.
425 Lexington Avenue
New York, NY 10017 by: /s/ Howard A. Palmer
_____________________________
name: Howard A. Palmer
Attention: Director title: Authorized Signatory
Facsimile: (212) 856-3761
BRANCH OFFICE FOR ACCOMMODATION:
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
ADDRESS: CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
425 Lexington Avenue
New York, NY 10017
by: /s/ Howard A. Palmer
_____________________________
Attention: Director name: Howard A. Palmer
title: Authorized Signatory
Facsimile: (212) 856-3761
BRANCH OFFICE FOR ACCOMMODATION:
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
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ADDRESS: BANKERS TRUST COMPANY
c/o BT Bank of Canada
P.O. Box 100 by: /s/ Victoria Page
_____________________________
Royal Bank Plaza name: Victoria Page
North Tower, Suite 1700 title: Managing Director
Toronto, Ontario
M5J 2J2
Attention: Vice President
Facsimile: (416) 941-9587
BRANCH OFFICE FOR ACCOMMODATION:
Bankers Trust Company
One Bankers Trust Plaza
130 Liberty Street
New York, New York 10006
ADDRESS: BT BANK OF CANADA
P.O. Box 100
Royal Bank Plaza by: ______________________________
North Tower, Suite 1700 name: Philip Hampson
Toronto, Ontario title: Vice President
M5J 2J2
Attention: Vice President
Facsimile: (416) 941-9587
BRANCH OFFICE FOR ACCOMMODATION:
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ADDRESS: ABN AMRO BANK CANADA
79 Wellington Street West
15th Floor, Aetna Tower by: /s/ Yvon J. Jeghers
P.O. Box 114, TD Centre _____________________________
Toronto, Ontario name: Yvon J. Jeghers
title: Group Vice President
M5K 1G8
Attention: Yvon J. Jeghers by: /s/ David Moore
_____________________________
name: David Moore
Facsimile: (416) 367-7937 title: Vice President
BRANCH OFFICE FOR ACCOMMODATION:
79 Wellington Street West
15th Floor, Aetna Tower
P.O. Box 114, TD Centre
Toronto, Ontario
M5K 1G8
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ADDRESS: BANK OF AMERICA CANADA
200 Front Street West
Suite 2700 by: /s/ Michel Hurtubise
Toronto, Ontario ______________________________
M5V 3L2 name: Michel Hurtubise
title: Vice President
Attention: Michel Hurtubise,
Vice President
Facsimile: (416) 349-4283
BRANCH OFFICE FOR ACCOMMODATION:
200 Front Street West
Suite 2700
Toronto, Ontario
M5V 3L2
ADDRESS: BANK OF AMERICA NT&SA
1850 Gateway Blvd.
5th Floor by: /s/ Denis Caldera
Concord, California 94520 ______________________________
name: Denis Caldera
title: Vice President
Attention: Denis Caldera,
Vice President
Facsimile: (510) 675-8053/8051
BRANCH OFFICE FOR ACCOMMODATION:
1850 Gateway Blvd.
5th Floor
Concord, California 94520
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ADDRESS: BANQUE NATIONALE DE PARIS
(CANADA)
36 Toronto Street
Suite 750
Toronto, Ontario by: /s/ Quoc Le Minh
M5C 2C5 ______________________________
name: Quoc Le Minh
title: Senior Vice President
General Manager, Ontario
Attention: Tom Currie
Facsimile: (416) 947-3541
BRANCH OFFICE FOR ACCOMMODATION:
36 Toronto Street
Suite 750
Toronto, Ontario
M5C 2C5
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ADDRESS: THE BANK OF NOVA SCOTIA
Corporate Banking - Ontario
44 King Street West by: /s/ Stephen P. Hart
16th Floor ______________________________
Toronto, Ontario name: Stephen P. Hart
M5H 1H1 title: Vice President & Unit Head
Attention: Stephen P. Hart by: /s/ M.S. Jackson
______________________________
Facsimile: (416) 866-2009 name: M.S. Jackson
title: Senior Relationship Manager
BRANCH OFFICE FOR ACCOMMODATION:
Corporate Banking Ontario
44 King Street West
16th Floor
Toronto, Ontario
M5H 1H1
ADDRESS: THE BANK OF NOVA SCOTIA, NEW
YORK AGENCY
1 Liberty Plaza
Floors 22-26
New York, NY 10006 by: /s/ John F. Neylan
______________________________
Attention: John F. Neylan name: John F. Neylan
title: Relationship Manager
Facsimile: (212) 225-5286
BRANCH OFFICE FOR ACCOMMODATION:
1 Liberty Plaza
Floors 22-26
New York, NY 10006
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ADDRESS: THE BANK OF TOKYO-MITSUBISHI
(CANADA)
Royal Bank Plaza
South Tower, Suite 2100
P.O. Box 42 by: ______________________________
Toronto, Ontario name: Ted Vanderlaan
M5J 2J1 title: Vice President
Attention: Ted Vanderlaan,
Vice President
by: ______________________________
Facsimile: (416) 865-9511 name: David C.A. Frost
title: Senior Vice President
BRANCH OFFICE FOR ACCOMMODATION:
Royal Bank Plaza
South Tower, Suite 2100
P.O. Box 42
Toronto, Ontario
M5J 2J1
ADDRESS: THE BANK OF TOKYO-MITSUBISHI,
LTD., NEW YORK BRANCH
U.S. Corporate Banking Division
1251 Avenue of the Americas
12th Floor by: /s/ J.B. Meredith
New York, NY 10020 ______________________________
name: J.B. Meredith
title: Power of Attorney
Attention: Bruce Meredith
Senior Vice President &
Manager
Facsimile: (212) 782-6440
BRANCH OFFICE FOR ACCOMMODATION:
1251 Avenue of the Americas
12th Floor
New York, NY 10020
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ADDRESS: THE CHASE MANHATTAN BANK OF CANADA
100 King Street West
Suite 6900
1 First Canadian Place by: /s/ Gene Gomes
Box 106 _______________________________
Toronto, Ontario name: Gene Gomes
M5X 1A4 title: Vice President
Attention: Gene Gomes
Facsimile: (416) 216-4161
BRANCH OFFICE FOR ACCOMMODATION:
100 King Street West
Suite 6900
1 First Canadian Place
Box 106
Toronto, Ontario
M5X 1A4
ADDRESS: TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
712 Main St. 5 TCBE 78
Houston, Texas 77002
by: /s/ Michael Ondruch
________________________________
Attention: Michael Ondruch name: Michael Ondruch
title: Vice President
Facsimile: (713) 216-6004
BRANCH OFFICE FOR ACCOMMODATION:
712 Main St. 5 TCBE 78
Houston, Texas 77002
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ADDRESS: BANQUE PARIBAS
1200 Smith
Suite 3100 by: /s/ Scott Clingan
Houston, TX 77002 ______________________________
name: Scott Clingan
title: Vice President
Attention: Scott Clingan
Facsimile: (713) 659-5234 by: /s/ Timothy A. Donnon
______________________________
name: Timothy A. Donnon
BRANCH OFFICE FOR ACCOMMODATION: title: Managing Director
1200 Smith
Suite 3100
Houston, TX 77002
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ADDRESS: COMERICA BANK
International Finance Department
500 Woodward Avenue by: /s/ Darlene P. Persons
23rd Floor ______________________________
Detroit, Michigan 48226-3328 name: Darlene P. Persons
title: Vice President
Attention: Darlene P. Persons
Facsimile: (313) 222-3377
BRANCH OFFICE FOR ACCOMMODATION:
Internationae Finance Department
500 Woodward Avenue
23rd Floor
Detroit, Michigan 48226-3328
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ADDRESS: CREDIT LYONNAIS CANADA
One Financial Place
One Adelaide Street East by: /s/ Helen Thomas
Suite 2505 ______________________________
Toronto, Ontario name: Helen Thomas
M5C 2V9 title: Vice President,
Corporate Banking
Attention: Assistant Vice President
by: /s/ David Farmer
Facsimile:(416) 202-6525 ______________________________
name: David Farmer
BRANCH OFFICE FOR ACCOMMODATION: title: First Vice-President and
Manager, Central Region
One Financial Place
One Adelaide Street East
Suite 2505
Toronto, Ontario
M5C 2V9
ADDRESS: CREDIT LYONNAIS NEW YORK
BRANCH
1301 Avenue of the Americas
New York, NY 10019
by: /s/Dennis Knecht
Attention: Marie Matsoukis-Malliaros ______________________________
name: Dennis Knecht
Facsimile: (212) 459-3169 title: Vice President,
Correspondent Banking
BRANCH OFFICE FOR ACCOMMODATION:
1301 Avenue of the Americas
New York, NY 10019
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ADDRESS: CREDIT SUISSE FIRST BOSTON
CANADA
525 University Avenue
Suite 1300
Toronto, Ontario by: /s/ Peter Chauvin
M5G 2K8 ______________________________
name: Peter Chauvin
title: Vice President
Attention: Vice President,
Corporate Banking
Facsimile: (416) 351-3671 by: /s/ W.M. Mcfarland
______________________________
name: W.M. Mcfarland
title: Vice President
BRANCH OFFICE FOR ACCOMMODATION:
525 University Avenue
Suite 1300
Toronto, Ontario
M5G 2K8
ADDRESS: CREDIT SUISSE FIRST BOSTON
Eleven Madison Avenue
New York, New York 10010-3629 by: /s/ David W. Kratovil
______________________________
name: David W. Kratovil
Attention: David W. Kratovil title: Director
Facsimile: (212) 325-8309
by: /s/ Chris T. Horgan
______________________________
name: Chris T. Horgan
BRANCH OFFICE FOR ACCOMMODATION: title: Vice President
Eleven Madison Avenue
New York, New York 10010-3629
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ATTENTION: THE DAI-ICHI KANGYO BANK, LTD.
One World Trade Centre
Suite 4911 by: /s/ Robert P. Gallagher
New York, New York 10048 ______________________________
name: Robert P. Gallagher
title: Assistant Vice President
Attention: Robert P. Gallagher Corporate Finance
Facsimile: (212) 524 0579
BRANCH OFFICE FOR ACCOMMODATION:
One World Trade Centre
Suite 4911
New York, New York 10048
ADDRESS: DAI-ICHI KANGYO BANK (CANADA)
P.O. Box 295, Suite 5025
Commerce Court West by: /s/ Hideki Suda
Toronto, Ontario ______________________________
M5L 1H9 name: Hideki Suda
title: Vice President
Attention: Alvin Lindhorst
Facsimile: (416) 365-7314
BRANCH OFFICE FOR ACCOMMODATION:
P.O. Box 295, Suite 5025
Commerce Court West
Toronto, Ontario
M5L 1H9
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ADDRESS: DEUTSCHE BANK CANADA
222 Bay Street
Suite 1100, P.O. Box 196 by: /s/ Francois Wentzel
Toronto, Ontario ______________________________
M5K 1H6 name: Francois Wentzel
title: Vice President and Director
Attention: Vice President,
Corporate Finance by: /s/ T.G. Leonard
______________________________
Facsimile: (416) 682-8444 name: T.G. Leonard
title: Vice President
BRANCH OFFICE FOR ACCOMMODATION:
222 Bay Street
Suite 1200, P.O. Box 196
Toronto, Ontario
M5K 1H6
ADDRESS: DEUTSCHE BANK AG
Deutsche Bank Securities Corporation
31 West 52nd Street by: /s/ Jean Hannigan
New York, New York 100 ______________________________
name: Jean Hannigan
title: Vice President
Attention: Vice President
Facsimile: (212) 469-8212 by: /s/ John Augsburger
______________________________
name: J. Augsburger
BRANCH OFFICE FOR ACCOMMODATION: title: Vice President
Deutsche Bank AF
Cayman Islands Branch
31 West 52nd Street
New York, New York 10019
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ADDRESS: DRESDNER BANK CANADA
Suite 1700, Exchange Tower
2 First Canadian Place, P.O. Box 430 by: /s/ Bill Eeuwes
Toronto, Ontario ______________________________
M5X 1E3 name: Bill Eeuwes
title: Vice President
Attention: Vice President
by: /s/ Linda Krisman
Facsimile: (416) 369-8362 ______________________________
name: Linda Krisman
title: Assistant Vice President
BRANCH OFFICE FOR ACCOMMODATION:
Suite 1700, Exchange Tower
2 First Canadian Place, P.O. Box 430
Toronto, Ontario
M5X 1E3
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ADDRESS: DRESDNER BANK AG NEW YORK
BRANCH AND DRESDNER BANK AG
75 Wall Street GRAND CAYMAN BRANCH
25th Floor
New York, NY 10005
by: /s/ Ben Marzouk
Attention: Vice President ______________________________
name: Ben Marzouk
title: Vice President
Facsimile: (212) 429-2781
BRANCH OFFICE FOR ACCOMMODATION: by: /s/ Anthony J. Berti
______________________________
name: Anthony J. Berti
75 Wall Street title: Assistant Treasurer
25th Floor
New York, NY 10005
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ADDRESS: FIRST CHICAGO NBD BANK,
CANADA
161 Bay Street
Suite 4240
Toronto, Ontario by: /s/ Michael C. Bauer
M5J 2S1 ______________________________
name: Michael C. Bauer
title: Vice President
Attention: Michael C. Bauer
by: /s/ Michael N. Tam
______________________________
Facsimile: (416) 363-7574 name: Michael N. Tam
title: Assistant Vice President
BRANCH OFFICE FOR ACCOMMODATION:
161 Bay Street
Suite 4240
Toronto, Ontario
M5J 2S1
ADDRESS: NBD BANK
611 Woodward Avenue
Detroit, Michigan 48226 by: /s/ Michael C. Bauer
_____________________________
name: Michael C. Bauer
Attention: Michael C. Bauer title: Vice President
Facsimile: (416) 363-7564
by: /s/ Michael N. Tam
______________________________
BRANCH OFFICE FOR ACCOMMODATION: name: Michael N. Tam
title: Assistant Vice President
611 Woodward Avenue
Detroit, Michigan 48226
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ADDRESS: FUJI BANK CANADA
BCE Place, Canada Trust Tower
Suite 2800
161 Bay Street by: /s/ John E. Baily
______________________________
Toronto, Ontario name: John E. Baily
M5J 2S1 title: Senior Vice President
Attention: Daniel Lee, Vice President,
Credit
Facsimile: (416) 865-9618
BRANCH OFFICE FOR ACCOMMODATION:
BCE Place, Canada Trust Tower
Suite 2800
161 Bay Street
Toronto, Ontario
M5J 2S1
ADDRESS: THE FUJI BANK, LIMITED
Houston Agency
1221 McKinney Street by: /s/ Philip C. Lauinger III
Suite 4100 ______________________________
Houston, Texas 77010 name: Philip C. Lauinger III
title: Vice President & Manager
Attention: Philip C. Lauinger III
Facsimile: (713) 759-0048
BRANCH OFFICE FOR ACCOMMODATION
Houston Agency
Suite 4100
1221 McKinney Street
Houston, Texas 77010
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ADDRESS: HIBERNIA NATIONAL BANK
313 Carondelet Street
New Orleans, LA 70131 by: /s/ Troy J. Villafarra
______________________________
name: Troy J. Villafarra
Attention: Troy Villafarra title: Vice President
Facsimile: (504) 533-5344
BRANCH OFFICE FOR ACCOMMODATION
IN CANADA:
313 Carondelet Street
New Orleans, LA 70131
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ADDRESS: THE INDUSTRIAL BANK OF JAPAN
(CANADA)
100 Yonge Street
Suite 1102
P.O. Box 29 by: /s/ Toru Irie
Toronto, Ontario __________________________________
M5C 2W1 name: Toru Irie
title: Senior Vice President
Attention: Campbell McLeish
Facsimile: (416) 367-3452
BRANCH OFFICE FOR ACCOMMODATION:
100 Yonge Street
Suite 1102
P.O. Box 29
Toronto, Ontario
M5C 2W1
ADDRESS: THE INDUSTRIAL BANK OF JAPAN, LTD.
1251 Avenue of the Americas
New York, New York
10020-1104 by: /s/ J. Kenneth Biegen
_________________________________
name: J. Kenneth Biegen
Attention: Wayne Wright title: Senior Vice President
Assistant Vice President
Facsimile: (212) 282-4488
BRANCH OFFICE FOR ACCOMMODATION:
1251 Avenue of the Americas
New York, New York
10020-1104
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ADDRESS: KEYBANK NATIONAL ASSOCIATION
127 Public Square
MC: OH-01-27-0606
Cleveland, Ohio 44114 by: /s/ Sharon F. Weinstein
_____________________________
name: Sharon F. Weinstein
Credit Matters: title: Vice President
- ---------------
Attention: Sharon F. Weinstein
Facsimile: (216) 689-4981
Notices of Borrowing:
- ---------------------
Attention: Sandy Wilder
Facsimile: (216) 689-4981
BRANCH OFFICE FOR ACCOMMODATION:
127 Public Square
MC: OH-01-27-0606
Cleveland, Ohio 44114
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ADDRESS: THE LONG TERM CREDIT BANK OF
JAPAN, LTD.
165 Broadway
New York, NY 10006 by: /s/ Satoru Otsuba
__________________________________
name: Satoru Otsuba
Attention: Greg Hong, Vice President title: Joint General Manager
Facsimile: (212) 335-4524
BRANCH OFFICE FOR ACCOMMODATION:
165 Broadway
New York, NY 10006
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ADDRESS: LLOYDS BANK PLC
575 Fifth Avenue
18th Floor by: /s/ William R. Davies
New York, New York 10017 ______________________________
name: William R. Davies
Attention: Windsor Davies title: Vice President & Manager
Facsimile: (212) 930-5098
BRANCH OFFICE FOR ACCOMMODATION:
One Biscayne Tower
Suite 3200
2 South Biscayne Boulevard
Miami, Florida 33131
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ADDRESS: THE MUTUAL LIFE ASSURANCE
COMPANY OF CANADA
227 King Street South
Waterloo, Ontario
N2J 4C5 by: /s/ Keith Cressman
Attention: Keith Cressman ______________________________
name: Keith Cressman
Facsimile: (519) 888-3666 title: Manager, Corporate Loans
BRANCH OFFICE FOR ACCOMMODATION:
227 King Street South
Waterloo, Ontario
N2J 4C5
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ADDRESS: NATIONAL BANK OF CANADA
150 York Street
Suite 200 by: /s/ Douglas Richmond
Toronto, Ontario ______________________________
M5H 3A9 name: Douglas Richmond
title: Manager
Attention: Manager
by: /s/ Anne Brown
Facsimile: (416) 864-7682 ______________________________
name: Anne Brown
title: Manager
BRANCH OFFICE FOR ACCOMMODATION:
150 York Street
Suite 200
Toronto, Ontario
M5H 3A9
ADDRESS: NATIONAL BANK OF CANADA, NEW
YORK BRANCH
1850 - 2121 San Jacinto
Dallas Texas 75201
by: /s/ Larry L. Sears
Attention: Vice President ______________________________
name: Larry L. Sears
Facsimile: (214) 871-2015 title: Group Vice President
BRANCH OFFICE FOR ACCOMMODATION: by: /s/ Bill Handley
______________________________
125 West 55th Street name: Bill Handley
New York, New York 10019 title: Vice President
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ADDRESS: NATIONSBANK, N.A.
Credit Matters:
- ---------------
by: /s/ Peter D. Griffith
600 Peachtree Street, N.E. ______________________________
22nd Floor name: Peter D. Griffith
Atlanta, Georgia 30308 title: Senior Vice President
Attention: Peter Griffith
Facsimile: (404) 607-6423
Borrowings and Administrative Matters:
101 N. Tryon Street
15th Floor
Charlotte, NC 28255-0001
Attention: Kerri Thompson
facsimile: (704) 386-8694
BRANCH OFFICE FOR ACCOMMODATION:
101 N. Tryon Street
15th Floor
Charlotte, NC 28255-0001
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ADDRESS: MELLON BANK CANADA
P.O. Box 320
Suite 3200, Royal Trust Tower by: /s/ Wendy B.H. Bocti
Toronto-Dominion Centre ______________________________
Toronto, Ontario name: Wendy B.H. Bocti
M5K 1K2 title: Vice President
Attention: Wendy B.H. Bocti
Facsimile: (416) 860-2409
BRANCH OFFICE FOR ACCOMMODATION:
P.O. Box 320
Suite 3200, Royal Trust Tower
Toronto-Dominion Centre
Toronto, Ontario
M5K 1K2
ADDRESS: MELLON BANK, N.A.
One Mellon Bank Centre
Room 4401 by: /s/ Dwayne R. Finney
Pittsburg, Pennsylvania 15258 ______________________________
name: Dwayne R. Finney
Attention: Dwayne R. Finney title: Assistant Vice President
Facsimile: (412) 234-8888
BRANCH OFFICE FOR ACCOMMODATION:
One Mellon Bank Centre
Room 4401
Pittsburg, Pennsylvania 15258
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ADDRESS: PNC BANK, NATIONAL
ASSOCIATION
One PNC Plaza - 2nd Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15265 by: /s/ Lawrence W. Jacobs
______________________________
name: Lawrence W. Jacobs
Attention: Lawrence W. Jacobs title: Vice President
Facsimile: (412) 762-6484
BRANCH OFFICE FOR ACCOMMODATION:
One PNC Plaza - 2nd Plaza
249 Fifth Avenue
Pittsburgh, Pennsylvania 15265
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ADDRESS: ROYAL BANK OF CANADA
3405 Harvester Road
Suite 201 by: ______________________________
Burlington, Ontario name: Peter Gray-Donald
L7N 3N1 title: Senior Account Manager
Attention: Senior Account Manager
Facsimile: (905) 333-7209
BRANCH OFFICE FOR ACCOMMODATION:
3405 Harvester Road
Suite 201
Burlington, Ontario
L7N 3N1
ADDRESS: ROYAL BANK OF CANADA
One North Franklin
Suite 700 by: /s/ Molly Drennan
Chicago, Ill 60606 ______________________________
name: Molly Drennan
title: Senior Account Manager
Attention: Manager
Facsimile: (312) 551-0805
BRANCH OFFICE FOR ACCOMMODATION:
Grand Cayman Branch (N. Amer #1)
New York Operations Center
Royal Bank of Canada
One Financial Square
New York, NY 10005
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ADDRESS: THE ROYAL BANK OF SCOTLAND PLC
Wall Street Plaza
88 Pine Street
New York, New York 10005 by: /s/ Russell M. Gibson
______________________________
name: Russell M. Gibson
Attention: R.M. Gibson title: Vice President and
Deputy Manager
Facsimile: (212) 480-0791
BRANCH OFFICE FOR ACCOMMODATION:
Wall Street Plaza
88 Pine Street
New York, New York 10005
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ADDRESS: SAKURA BANK (CANADA)
Commerce Court West
Suite 3601, P.O. Box 59 by: ______________________________
Toronto, Ontario name: Elwood R. Langley
M5L 1B9 title: Vice President
Attention: Vice President
Corporate Finance
Facsimile: (416) 369-0268
BRANCH OFFICE FOR ACCOMMODATION:
Commerce Court West
Suite 3601, P.O. Box 59
Toronto, Ontario
M5L 1B9
ADDRESS: THE SAKURA BANK, LIMITED
277 Park Avenue
New York, NY 10172-0098 by: /s/ Hiroshi Ozaki
_______________________________
name: Hiroshi Ozaki
Attention: Hiroshi Ozaki title: Vice President
Facsimile: (212) 888-7651
BRANCH OFFICE FOR ACCOMMODATION:
277 Park Avenue
New York, NY 10172-0098
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ADDRESS: SANWA BANK CANADA
BCE Place, Canada Trust Tower
P.O. Box 525, Suite 4400 by: /s/ Shigeki Iwashita
161 Bay Street ______________________________
Toronto, Ontario name: Shigeki Iwashita
M5J 2S1 title: Vice President
Attention: Vice President, Corporate Banking
Facsimile: (416) 366-8599
BRANCH OFFICE FOR ACCOMMODATION:
BCE Place, Canada Trust Tower
P.O. Box 525, Suite 4400
161 Bay Street
Toronto, Ontario
M5J 2S1
ADDRESS: THE SANWA BANK, LIMITED,
ATLANTA AGENCY
Georgia-Pacific Center
Suite 4950
133 Peachtree Street, N.E. by: /s/ Shigeki Iwashita
Atlanta, Gerogia 30303 ______________________________
name: Shigeki Iwashita
title: Attorney-in-Fact
Attention: Vice President,
US Corporate Finance
Facsimile: (404) 589-1629
BRANCH OFFICE FOR ACCOMMODATION:
Georgia-Pacific Center
Suite 4950
133 Peachtree Street, N.E.
Atlanta, Gerogia 30303
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201
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ADDRESS: SOCIETE GENERALE (CANADA)
Scotia Plaza
100 Yonge Street by: /s/ Michael Klopchic
Suite 1002 ______________________________
Toronto, Ontario name: Michael Klopchic
M5C 2W1 title: Relationship Manager
Attention: Michael Klopchic
Relationship Manager by: /s/ Eric Dhoste
______________________________
name: Eric Dhoste
Facsimile: (416) 364-1897 title: Vice President
BRANCH OFFICE FOR ACCOMMODATION:
Scotia Plaza
100 Yonge Street
Suite 1002
Toronto, Ontario
M5C 2W1
ADDRESS: SOCIETE GENERALE - CHICAGO
181 West Madison
Suite 3400 by: /s/ Joseph A. Philbin
Chicago, Ill 60602 ______________________________
name: Joseph A. Philbin
title: Vice President
Attention: Joseph Philbin
Facsimile: (312) 578-5099
BRANCH OFFICE FOR ACCOMMODATION:
181 West Madison
Suite 3400
Chicago, Ill 60602
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ADDRESS: SUMMIT BANK
750 Walnut Avenue
Cranford, NJ 07016 by: /s/ Rick Sobrevinas
______________________________
name: Rick Sobrevinas
Attention: Rick Sobrevinas title: Managing Director
Facsimile: (908) 709-3160
BRANCH OFFICE FOR ACCOMMODATION:
750 Walnut Avenue
Cranford, NJ 07016
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ADDRESS: THE SUMITOMO BANK OF CANADA
Ernst & Young Tower
Suite 1400, P.O. Box 172 by: /s/ Alfred Lee
222 Bay Street ______________________________
Toronto, Ontario name: Alfred Lee
M5K 1H6 title: Vice President
Attention: Alfred Lee
Facsimile: (416) 368-4934
BRANCH OFFICE FOR ACCOMMODATION:
Ernest & Young Tower
Suite 1400, P.O. Box 172
222 Bay Street
Toronto, Ontario
M5K 1H6
ADDRESS: THE SUMITOMO BANK, LIMITED
Chicago Branch
Suite 4800 by: /s/ John Kemper
Sears Tower ______________________________
233 South Wacker Drive name: John Kemper
Chicago, Illinois 60606 title: Senior Vice President
Attention: Diane Zeller Scherer
Facsimile: (312) 876-6436
BRANCH OFFICE FOR ACCOMMODATION:
Chicago Branch
Sears Tower, Suite 4800
233 South Wacker Drive
Chicago, Illinois 60606
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ADDRESS: THE TOYO TRUST & BANKING CO.,
LTD.
666 Fifth Avenue
33rd Floor
New York, New York 10103-3395 by: /s/ T. Mikumo
__________________________
Attention: Paul St. Mauro name: T. Mikumo
title: Vice President
Facsimile: (212) 307-3498
BRANCH OFFICE FOR ACCOMMODATION:
666 Fifth Avenue
33rd Floor
New York, New York 10103-3395
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ADDRESS: THE TORONTO-DOMINION BANK
8th Floor, TD Tower
P.O. Box 1 by: Bruce A. Schouten
Toronto-Dominion Centre ________________________________
Toronto, Ontario name: Bruce A. Schouten
M5K 1S2 title: Manager
Attention: Manager, Corporate Lending
Facsimile: (416) 944-5630
BRANCH OFFICE FOR ACCOMMODATION:
Main Branch
King & Bay, Toronto
c/o Corporate Accounts Administration
8th Floor, TD Tower
P.O. Box 1
Toronto-Dominion Centre
Toronto, Ontario
M5K 1S2
Attention: Lynne Crofts
Facsimile: (416) 982-6630
ADDRESS: TORONTO DOMINION (NEW YORK), INC.
Credit-related Purposes:
- ------------------------
31 West 52nd Street by: /s/ David G. Parker
New York, New York 10019 ________________________________
name: David G. Parker
title: Manager -
Attention: Duncan Robertson Credit Administration
Facsimile: (212) 468-0551
BRANCH OFFICE FOR ACCOMMODATION:
909 Fannin, Suite 1700
Houston, Texas 77010
Attention: David G. Parker
Facsimile: (713) 653-8248
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ADDRESS: U.S. BANK
1420 Fifth Avenue
WWH 276 by: /s/ Arnold J. Conrad
Seattle, WA 98101 ______________________________
name: Arnold J. Conrad
title: Vice-President
Attention: Arnold J. Conrad
Facsimile: (206) 587-5259
BRANCH OFFICE FOR ACCOMMODATION:
1420 Fifth Avenue
WWH 276
Seattle, WA 98101
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ADDRESS: WACHOVIA BANK, N.A.
191 Peachtree Street NE
Atlanta, Georgia 30303 by: /s/ Henry H. Hagan
______________________________
name: Henry H. Hagan
Attention: Brian Rubins title: Senior Vice President
Facsimile: (404) 332-6898
BRANCH OFFICE FOR ACCOMMODATION:
191 Peachtree Street NE
Atlanta, Georgia 30303