EXHIBIT 10.3
$825,000,000
CREDIT AGREEMENT
Dated as of June 19, 2003
Among
LAIDLAW INVESTMENTS LTD.,
LAIDLAW TRANSIT LTD.
and
GREYHOUND CANADA TRANSPORTATION CORP.
as Borrowers
and
THE INITIAL LENDERS, SWING LINE BANKS, INITIAL CANADIAN ISSUING BANK
AND
INITIAL REVOLVING ISSUING BANK NAMED HEREIN
as Initial Lenders, Swing Line Banks and Initial Revolving Issuing Banks
and
CITIBANK, N.A.
as Additional Issuing Bank
and
CITICORP NORTH AMERICA, INC.
as Collateral Agent
and
CITICORP NORTH AMERICA, INC.
as Administrative Agent
and
CREDIT SUISSE FIRST BOSTON
as Syndication Agent
and
CITIGROUP GLOBAL MARKETS INC. and CREDIT SUISSE FIRST BOSTON
as Joint Lead Arrangers
and
CITIGROUP GLOBAL MARKETS INC.
as Sole Book-Runner
and
GENERAL ELECTRIC CAPITAL CORPORATION
as Co- Documentation Agent
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms............................................................................... 2
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions......................................... 44
SECTION 1.03. Accounting Terms................................................................................... 44
SECTION 1.04. Currency Equivalents Generally..................................................................... 44
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit............................................................. 44
SECTION 2.02. Making the Advances................................................................................ 49
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit................................. 52
SECTION 2.04. Repayment of Advances.............................................................................. 55
SECTION 2.05. Incremental Term Loan Commitments.................................................................. 57
SECTION 2.06. Termination or Reduction of the Commitments........................................................ 58
SECTION 2.07. Prepayments........................................................................................ 59
SECTION 2.08. Interest........................................................................................... 63
SECTION 2.09. Fees............................................................................................... 64
SECTION 2.10. Conversion of Advances............................................................................. 66
SECTION 2.11. Increased Costs, Etc............................................................................... 67
SECTION 2.12. Payments and Computations.......................................................................... 69
SECTION 2.13. Taxes.............................................................................................. 72
SECTION 2.14. Sharing of Payments, Etc........................................................................... 74
SECTION 2.15. Use of Proceeds.................................................................................... 75
SECTION 2.16. Defaulting Lenders................................................................................. 75
SECTION 2.17. Evidence of Debt................................................................................... 78
SECTION 2.18. Drawings of Bankers' Acceptances and Notional Bankers' Acceptances................................. 79
SECTION 2.19. Renewal and Conversion of Bankers' Acceptances..................................................... 82
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit................................................ 84
SECTION 3.02. Conditions to Escrow Release....................................................................... 92
SECTION 3.03. Conditions Precedent to Each Borrowing and Issuance and Renewal.................................... 94
ii
SECTION 3.04. Determinations Under Section 3.01.................................................................. 95
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower..................................................... 96
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants............................................................................. 103
SECTION 5.02. Negative Covenants................................................................................ 113
SECTION 5.03. Reporting Requirements............................................................................ 123
SECTION 5.04. Financial Covenants............................................................................... 128
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default................................................................................. 131
SECTION 6.02. Actions in Respect of the Letters of Credit, Bankers' Acceptances BA
Equivalent Advances upon Default ...................................................................... 134
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action.......................................................................... 135
SECTION 7.02. Agents' Reliance, Etc............................................................................. 136
SECTION 7.03. CNAI, CSFB and Affiliates......................................................................... 136
SECTION 7.04. Lender Party Credit Decision...................................................................... 137
SECTION 7.05. Indemnification................................................................................... 137
SECTION 7.06. Successor Agents.................................................................................. 138
SECTION 7.07. Appointment of Supplemental Collateral Agents..................................................... 149
SECTION 7.08. Appointment of Citibank, Canada as Fonde de Pouvoir............................................... 140
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc................................................................................... 140
SECTION 8.02. Notices, Etc...................................................................................... 141
SECTION 8.03. No Waiver; Remedies............................................................................... 142
SECTION 8.04. Costs and Expenses................................................................................ 143
SECTION 8.05. Right of Set-off.................................................................................. 144
SECTION 8.06. Binding Effect.................................................................................... 145
iii
SECTION 8.07. Assignments and Participations.................................................................... 145
SECTION 8.08. Execution in Counterparts......................................................................... 148
SECTION 8.09. No Liability of the Issuing Banks................................................................. 149
SECTION 8.10. Confidentiality................................................................................... 149
SECTION 8.11. Release of Collateral............................................................................. 150
SECTION 8.12. Jurisdiction, Etc................................................................................. 150
SECTION 8.13. Judgment Currency................................................................................. 151
SECTION 8.14. Governing Law..................................................................................... 151
SECTION 8.15. Waiver of Jury Trial.............................................................................. 152
iv
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - US Subsidiary Guarantors and Canadian Subsidiary Guarantors
Schedule III - Form of Insurance Asset Report
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(n) - Immaterial Subsidiaries
Schedule 4.01(o) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(p) - Environmental Disclosure
Schedule 4.01(q) - Open Years; Unpaid Tax Liabilities; Adjusted Tax Bases
Schedule 4.01(r) - Existing Debt
Schedule 4.01(s) - Surviving Debt
Schedule 4.01(t) - Liens
Schedule 4.01(u)(i) - Owned Real Property
Schedule 4.01(u)(ii) - Material Properties
Schedule 4.01(v)(i) - Leased Real Property (lessee)
Schedule 4.01(v)(ii) - Material Leases
Schedule 4.01(v)(iii) - Leased Real Property (lessor)
Schedule 4.01(w) - Investments
Schedule 4.01(x) - Intellectual Property
Schedule 4.01(y) - Material Contracts
Schedules 5.03(b)(i) and (ii) Form of Annual Financials
Schedules 5.03(c)(i) and (ii) Form of Quarterly Financials
Schedule 5.03(d) - Form of Monthly Financials
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Term B Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Drawing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of US Security Agreement
Exhibit E-1 - Form of US Subsidiary Guaranty
Exhibit E-2 - Form of Canadian Subsidiary Guaranty
Exhibit E-3 - Form of Parent Guaranty
Exhibit F - Form of US Mortgage
Exhibit G - Form of Solvency Certificate
Exhibit H-1 - Form of Opinion of Counsel to the Loan Parties (Closing Date)
Exhibit H-2 - Form of Opinion of Counsel to the Loan Parties (Escrow Release Date)
Exhibit I - Form of Escrow Agreement
Exhibit J - Plan of Reorganization
Exhibit K - Form of Local Counsel Opinions
Exhibit L - Form of Canadian Security Agreement
Exhibit M - Form of Canadian Mortgage
EXECUTION COPY
CREDIT AGREEMENT
CREDIT AGREEMENT (this "AGREEMENT") dated as of June __, 2003
among Laidlaw Investments Ltd., an Ontario corporation ("LIL"), which is in the
process of being reorganized under Chapter 11 of the United States Bankruptcy
Code (11 U.S.C. Section 101 et seq.; the "BANKRUPTCY CODE") and the Companies'
Creditors ArrangementS Act of Canada (the "CCAA"), as predecessor to Laidlaw
International, Inc., to be domesticated as a Delaware corporation on the
Business Day immediately succeeding the Closing Date ("NEW LINC" and, together
with LIL, referred to herein collectively as the "US BORROWER"), Laidlaw Transit
Ltd., an Ontario corporation ("LAIDLAW TRANSIT") and Greyhound Canada
Transportation Corp., an Ontario corporation ("GREYHOUND CANADA" and together
with Laidlaw Transit, the "CANADIAN BORROWERS" and, together with the US
Borrower, the "BORROWERS"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "INITIAL LENDERS"), the banks listed on the signature pages hereof
as the Initial Issuing Banks (the "INITIAL REVOLVING ISSUING BANKS"), the bank
listed on the signature pages hereof as the Initial Canadian Issuing Bank (the
"INITIAL CANADIAN ISSUING BANK") and, together with the Initial Lenders (the
"INITIAL LENDER PARTIES"), the bank listed on the signature page as the Initial
Swing Line Bank, Citibank, N.A., as Initial Additional Issuing Bank, Citicorp
North America, Inc. ("CNAI"), as collateral agent (together with any successor
collateral agent, the Sub-Agent (as hereinafter defined) or any Supplemental
Collateral Agent (as hereinafter defined) appointed pursuant to Article VII, the
"COLLATERAL AGENT") for the Secured Parties (as hereinafter defined), CNAI as
administrative agent (together with any successor administrative agent or any
Sub-Agent appointed pursuant to Article VII, the "ADMINISTRATIVE AGENT"), and
Credit Suisse First Boston, acting through its Cayman Islands branch ("CSFB") as
syndication agent (the "SYNDICATION AGENT" and, together with the Administrative
Agent and the Collateral Agent, the "AGENTS") for the Lender Parties (as
hereinafter defined) and General Electric Capital Corporation, as
co-documentation agent (the "CO-DOCUMENTATION AGENT") together with a second
Co-Documentation Agent to be appointed after the Closing Date.
PRELIMINARY STATEMENTS:
(1) On February 27, 2003, LIL and its debtor affiliates
obtained an order of the Bankruptcy Court (the "CONFIRMATION ORDER") confirming
the third amended plan of reorganization (the "PLAN OF REORGANIZATION") under
the Bankruptcy Code in the form attached hereto as Exhibit J filed by the US
Borrower with the Bankruptcy Court, dated as of January 23, 2003, and in
connection therewith intends to substantially consummate the Plan of
Reorganization prior to the Deadline Date (as hereinafter defined).
(2) LIL has requested that the Initial Lenders make the
Initial Extension of Credit hereunder prior to the consummation of the Plan of
Reorganization.
(3) The Lenders are entering into the transactions
contemplated hereby subject to, and in reliance upon, among other things, (i)
the agreement that any Advances hereunder made prior to the consummation of the
Plan of Reorganization shall be funded into the
2
Escrow Account, (ii) the payment by LIL into escrow of $625,000,000 (plus such
fees, interest payable through the Deadline Date and other amounts payable
hereunder) for the account of the Agents and the Lenders as set forth herein,
and (iii) the substantial consummation of the Plan of Reorganization described
above prior to the Deadline Date.
(4) The Lender Parties have indicated their willingness
to agree to lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADDITIONAL COLLATERAL ACCOUNT" means the cash collateral
account in the name of Citibank held by the Additional Issuing Bank and
pledged in favor thereof by the US Borrower pursuant to the terms of
the US Security Agreement to cash collateralize the Additional Letters
of Credit.
"ADDITIONAL ISSUING BANK" means the Initial Additional Issuing
Bank and any Eligible Assignee to which the Additional Letter of Credit
Commitment hereunder has been assigned pursuant to Section 8.07 so long
as such Eligible Assignee expressly agrees to perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as an Additional Issuing
Bank and notifies the Administrative Agent of its Applicable Lending
Office and the amount of its Additional Letter of Credit Commitment
(which information shall be recorded by the Administrative Agent in the
Register), for so long as such Initial Additional Issuing Bank or
Eligible Assignee, as the case may be, shall have an Additional Letter
of Credit Commitment.
"ADDITIONAL LETTER OF CREDIT" has the meaning specified in
Section 2.01(f)(iii).
"ADDITIONAL LETTER OF CREDIT COMMITMENT" means, with respect
to the Additional Issuing Bank at any time, the amount set forth
opposite such Issuing Bank's name on Schedule I hereto under the
caption "Additional Letter of Credit Commitment" or, if such Additional
Issuing Bank has entered into an Assignment and Acceptance, set forth
for such Additional Issuing Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as the Additional
Issuing Bank's "Additional Letter of Credit Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.06.
3
"ADDITIONAL LETTER OF CREDIT FACILITY" means, at any time, an
amount equal to the amount of the Additional Issuing Bank's Additional
Letter of Credit Commitment at such time, as such amount may be reduced
at or prior to such time pursuant to Section 2.06.
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent with
Citibank, N.A. at its office at 388 Greenwich Street, New York, New
York 10013, Account No. 36852248, Account Name: Agent Medium Term
Finance, Reference: Laidlaw, or such other account as the
Administrative Agent shall specify in writing to the Lender Parties.
"ADVANCE" means a Term B Advance, a Revolving Credit Advance,
a Swing Line Advance or a Letter of Credit Advance.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Interests of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Interests, by contract or
otherwise.
"AGENTS" has the meaning specified in the recital of parties
to this Agreement.
"AGREEMENT VALUE" means, for all Hedge Agreements with a
particular counterparty, on any date of determination, an amount
determined by the Administrative Agent equal to: (a) in the case of a
Hedge Agreement documented pursuant to the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and
Derivatives Association, Inc. (the "MASTER AGREEMENT"), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries
to its counterparty to such Hedge Agreement, as if (i) such Hedge
Agreement was being terminated early on such date of determination,
(ii) such Loan Party or Subsidiary was the sole "Affected Party", and
(iii) the Administrative Agent was the sole party determining such
payment amount (with the Administrative Agent making such determination
pursuant to the provisions of the form of Master Agreement); (b) in the
case of a Hedge Agreement traded on an exchange, the mark-to-market
value of such Hedge Agreement, which will be the unrealized loss on
such Hedge Agreement to the Loan Party or Subsidiary of a Loan Party
party to such Hedge Agreement determined by the Administrative Agent
based on the settlement price of such Hedge Agreement on such date of
determination; or (c) in all other cases, the mark-to-market value of
such Hedge Agreement, which will be the unrealized loss on such Hedge
Agreement to the Loan Party or Subsidiary of a Loan Party party to such
Hedge Agreement determined by the Administrative Agent as the amount,
if any, by which (i) the present value of the future cash flows to be
paid by such Loan Party or Subsidiary exceeds (ii) the present value of
the future cash flows to be received by such
4
Loan Party or Subsidiary pursuant to such Hedge Agreement, net, in each
case, of any unrealized gains in respect of all such Hedge Agreements
in favor of the relevant Loan Party or Subsidiaries for which the
applicable counterparty is liable; capitalized terms used and not
otherwise defined in this definition shall have the respective meanings
set forth in the above described Master Agreement.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance, such Lender Party's Eurodollar Lending Office in the
case of a Eurodollar Rate Advance, and such Lender's Canadian Lending
Office in the case of a Canadian Advance.
"APPLICABLE MARGIN" means (a) in respect of the Revolving
Credit Facility, (i) for the period commencing on the Effective Date
and ending on the date falling six months after the Effective Date,
3.50% per annum for Base Rate Advances, 4.50% per annum for Eurodollar
Rate Advances and 3.50% per annum for Canadian Advances and (ii)
thereafter a percentage per annum determined by reference to the
Leverage Ratio as set forth below, (b) in respect of the Bankers
Acceptances and Notional Bankers' Acceptances, (i) for the period
commencing on the Effective Date and ending on the date falling six
months after the Effective Date, 4.50% per annum and (ii) thereafter a
percentage per annum determined by reference to the Leverage Ratio as
set forth below:
- --------------------------------------------------------------------------------
EURODOLLAR
BASE RATE RATE BANKERS'
ADVANCES ADVANCES ACCEPTANCES
(REVOLVING (REVOLVING AND NOTIONAL
CREDIT CREDIT BANKERS' CANADIAN
LEVERAGE RATIO FACILITY) FACILITY) ACCEPTANCES ADVANCES
- --------------------------------------------------------------------------------
Level I
less than 2.00:
1.0 3.25% 4.25% 4.25% 3.25%
- --------------------------------------------------------------------------------
Level II
2.00: 1.0 or
greater,
but less than
2.75: 1.0 3.50% 4.50% 4.50% 3.50%
- --------------------------------------------------------------------------------
Level III
2.75: 1.0 or
greater 3.75% 4.75% 4.75% 3.75%
- --------------------------------------------------------------------------------
and (c) in respect of the Term B Facility, (1) 4.00% per annum for Base
Rate Advances and 5.00% per annum for Eurodollar Rate Advances or (2)
if an Incremental Term Facility exists and the then applicable
Incremental Term Applicable Margin exceeds the percentages per annum
set forth in clause (1) for the Term B Facility, the then applicable
Incremental Term Applicable Margin.
5
The Applicable Margin for each Base Rate Advance, each Canadian
Advance, each Bankers' Acceptance and each Notional Bankers' Acceptance
shall be determined by reference to the Leverage Ratio in effect from
time to time and the Applicable Margin for each Eurodollar Rate Advance
shall be determined by reference to the Leverage Ratio in effect on the
first day of each Interest Period for such Advance; provided, however,
that (A)(x) no change in the Applicable Margin shall be effective until
three Business Days after the date on which the Administrative Agent
receives the financial statements required to be delivered pursuant to
Section 5.03(b) or (c), as the case may be, and a certificate of the
Chief Financial Officer of the US Borrower demonstrating such Leverage
Ratio, and (B) the Applicable Margin in respect of the Revolving Credit
Facility shall be at Level III for so long as the US Borrower has not
submitted to the Administrative Agent the information described in
clause (A) of this proviso as and when required under Section 5.03(b)
or (c), as the case may be.
"APPROPRIATE LENDER" means, at any time, with respect to (a)
any of the Term B Facility, the Incremental Term Facility or the
Revolving Credit Facility, a Lender that has a Commitment with respect
to such Facility at such time, (b) the US Revolving Letter of Credit
Facility, (i) any US Revolving Issuing Bank and (ii) if the other
Revolving Credit Lenders have made Revolving Letter of Credit Advances
pursuant to Section 2.03(c) that are outstanding at such time, each
such other Revolving Credit Lender, (c) the Canadian Letter of Credit
Facility, (i) any Canadian Revolving Issuing Bank and (ii) if the other
Revolving Credit Lenders have made Revolving Letter of Credit Advances
pursuant to Section 2.03(c) that are outstanding at such time, each
such other Revolving Credit Lender, (d) the Canadian Subfacility, (i)
any Canadian Lender and (ii) if the other Revolving Credit Lenders have
made Canadian Revolving Credit Advances pursuant to Section 2.02(c)
that are outstanding at such time, each such other Revolving Credit
Lender, (e) the Swing Line Facility, (i) the Swing Line Bank and (ii)
if the other US Revolving Credit Lenders have made Swing Line Advances
pursuant to Section 2.01(d) that are outstanding at such time, each
such other Revolving Credit Lender and (f) the Additional Letter of
Credit Facility, the Additional Issuing Bank.
"APPROVED FUND" means any Fund that is administered or managed
by (i) a Lender Party, (ii) an Affiliate of a Lender Party or (iii) an
entity or an Affiliate of an entity that administers or manages a
Lender Party.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"AVAILABLE AMOUNT" of any Revolving Letter of Credit or
Additional Letter of Credit means, at any time, the maximum amount
available to be drawn under such Revolving Letter of Credit or
Additional Letter of Credit, as the case may be, at such time (assuming
compliance at such time with all conditions to drawing).
"BA COLLATERAL ACCOUNT" has the meaning specified in the
Canadian Security Agreement.
6
"BA EQUIVALENT ADVANCE" has the meaning specified in Section
2.18(a).
"BA LENDER" means any Canadian Lender that is a bank chartered
under the Bank Act (Canada) and which stamps and accepts bankers'
acceptances.
"BA LENDING OFFICE" means, with respect to each Canadian
Lender, the office of such Lender set forth as its "BA Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a lender or such other office of
such Lender in Canada as such Lender may from time to time specify to
the Canadian Borrowers and the Administrative Agent for such purpose.
"BA RATE" means:
(a) for each Schedule I Lender, and in respect of
each Notional Bankers' Acceptance, the average rate
(calculated on an annual basis of a year of 365 days and
rounded up to the nearest multiple of 1/4 of 1%, if such
average is not such a multiple) for Canadian Dollar bankers'
acceptances having a comparable term that appears on the
Reuters Screen CDOR Page (or such other page as is a
replacement page for such bankers' acceptances) at 10:00 A.M.
(Toronto time) or, if such rate is not available at such time,
the applicable discount rate in respect of such Bankers'
Acceptances or Notional Bankers' Acceptances shall be the
discount rate (calculated on an annual basis of 365 days),
quoted by the Sub-Agent at 9:30 A.M. (Toronto time) on the
date of such Drawing as the discount rate at which the
Sub-Agent would purchase, on such date, its own bankers'
acceptances having an aggregate Face Amount equal to and with
a term to maturity the same as the Bankers' Acceptances and
Notional Bankers' Acceptances to be acquired by such Canadian
Lender as part of such Drawing; and
(b) for each Schedule II Lender and Schedule III
Lender, the lesser of (i) the discount rate of such Lender for
Canadian Dollar bankers' acceptances having a comparable term
determined in accordance with its normal practice at or about
10:00 A.M. (Toronto time) on the date of issue and acceptance
of such Bankers' Acceptances, and (ii) the average rate
determined by the Sub-Agent pursuant to (a) plus 0.1%.
"BANKERS' ACCEPTANCE" has the meaning specified in Section
2.01(e).
"BANKRUPTCY CODE" has the meaning specified in the recital of
parties to this Agreement.
"BANKRUPTCY COURT" means the U.S. Bankruptcy Court for the
Western District of New York.
"BANKRUPTCY LAW" means any proceeding of the type referred to
in Section 6.01(f) or Title II, U.S. Code, or any similar foreign,
federal or state law for the relief of debtors.
7
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by Citibank,
N.A. in New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2
of 1% per annum, plus (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of major
United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental
or other marginal reserve requirement) for Citibank with respect to
liabilities consisting of or including (among other liabilities)
three-month US Dollar non-personal time deposits in the United States,
plus (iii) the ---- average during such three-week period of the annual
assessment rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring US Dollar deposits of
Citibank in the United States; and
(c) 1/2 of 1% per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means a US Revolving Credit Advance, a
Term B Advance and a Revolving Letter of Credit Advance or an
Incremental Term Advance that bears interest as provided in Section
2.08(a)(i).
"BLOCKED AMOUNT" means an amount equal to the aggregate
Stipulated Loss Value with respect to the Greyhound Lines, Inc. leases
(the "GREYHOUND LEASES") guaranteed by the US Borrower. The Blocked
Amount will reduce (i) by the amount of any reduction in the amount
guaranteed under the Greyhound Leases or (ii) if the US Borrower has
the right to assume any such Greyhound Lease, the Blocked Amount will
reduce by the amount of the Stipulated Loss Value in respect of such
assumable lease; provided that any such right to assume shall be
documented to the satisfaction of the Administrative Agent. Any such
reductions in the Blocked Amount shall be done on a quarterly basis
upon the delivery of the certificate described in Section 5.03(p).
"BONDING FACILITIES" means each of the AIG Bonding Facility,
the Universal Bonding Facility, the Gulf Bonding Facility and the
Federal Insurance Bonding Facility,
8
each as more fully described in the Disclosure Statement and any
similar facility replacing or supplementing any of the foregoing.
"BORROWERS" has the meaning specified in the recital of
parties to this Agreement.
"BORROWER'S ACCOUNT" means (i) with respect to the US
Borrower, the account of such Borrower maintained by such Borrower with
Citibank at its office at ____________________, New York, New York
_____, Account No. __________, or such other account as such Borrower
shall specify in writing to the Administrative Agent and (ii) with
respect to the Canadian Borrowers, the accounts of such Borrowers
maintained by such Borrowers with __________ at its office at
__________, Canada, Account No. _____ (with respect to Laidlaw Transit)
and Account No. _____ (with respect to Greyhound Canada), or such other
account as such Canadian Borrower shall specify in writing to the
Administrative Agent.
"BORROWING" means a Term B Borrowing, a Revolving Credit
Borrowing or a Swing Line Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City or Toronto,
Canada and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
"CANADIAN ADVANCES" has the meaning specified in Section
2.01(c).
"CANADIAN BORROWERS" has the meaning specified in the recital
of parties to this Agreement.
"CANADIAN BUSINESS DAY" means a day of the year on which banks
are not required or authorized by law to close in Toronto, Ontario,
Canada.
"CANADIAN COURT" means the Ontario Superior Court of Justice.
"CANADIAN DOLLARS" and "CN$" each means lawful money of
Canada.
"CANADIAN INTELLECTUAL PROPERTY SECURITY AGREEMENT" means the
Intellectual Property Security Agreement as defined in the Canadian
Security Agreement.
"CANADIAN INTERBANK RATE" means the interest rate, expressed
as a percentage per annum, which is customarily used by the Sub-Agent
when calculating interest due by it or owing to it arising from or in
connection with correction of errors between it and other Canadian
chartered banks.
"CANADIAN ISSUING BANK" means the Initial Canadian Issuing
Bank and any Eligible Assignee to which the Canadian Letter of Credit
Commitment hereunder has been assigned pursuant to Section 8.07 so long
as such Eligible Assignee expressly agrees to perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as an Canadian Issuing
Bank and
9
notifies the Administrative Agent of its Applicable Lending Office and
the amount of its Canadian Letter of Credit Commitment (which
information shall be recorded by the Administrative Agent in the
Register), for so long as such Initial Canadian Issuing Bank or
Eligible Assignee, as the case may be, shall have an Canadian Letter of
Credit Commitment.
"CANADIAN L/C COLLATERAL ACCOUNT" has the meaning specified in
the Canadian Security Agreement.
"CANADIAN L/C DISBURSEMENT" shall mean a payment or
disbursement made by any Canadian Issuing Bank pursuant to a Canadian
Letter of Credit.
"CANADIAN LENDER" means any Lender listed on the signature
pages hereof as a Canadian Lender each of which is resident in Canada
for purposes of the Income Tax Act (Canada).
"CANADIAN LENDING OFFICE" means with respect to any Canadian
Lender, the office of such Canadian Lender specified as its Canadian
Lending Office opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Canadian
Lender, or such other office of such Canadian Lender as such Canadian
Lender may from time to time specify to the US Borrower and the
Administrative Agent.
"CANADIAN LETTER OF CREDIT ADVANCE" means an advance made by
any Canadian Issuing Bank or any Revolving Credit Lender pursuant to
Section 2.03(c).
"CANADIAN LETTER OF CREDIT COMMITMENT" means, with respect to
any Canadian Issuing Bank at any time, the amount set forth opposite
such Issuing Bank's name on Schedule I hereto under the caption "Letter
of Credit Commitment" or, if such Issuing Bank has entered into one or
more Assignment and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.06.
"CANADIAN LETTER OF CREDIT FACILITY" means, at any time, an
amount equal to the lesser of (a) the aggregate amount of the Canadian
Issuing Banks' Letter of Credit Commitments at such time and (b)
U.S.$15 million, as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"CANADIAN LETTERS OF CREDIT" has the meaning specified in
Section 2.01(f).
"CANADIAN LOAN PARTY" means each Loan Party organized under
the laws of Canada or a political subdivision thereof.
"CANADIAN MATERIAL LEASES" shall mean those leases set forth
in Schedule 4.01(v)(ii) under the heading "Canadian Material Leases."
"CANADIAN MORTGAGES" has the meaning specific in Section
3.01(a)(vi).
10
"CANADIAN MORTGAGE POLICIES" has the meaning specified in
Section 3.01(a)(vi).
"CANADIAN ORDER" means the order of the Canadian Court dated
February 28, 2003 made pursuant to the CCAA in respect of LIL and an
affiliate, among other things, recognizing the Confirmation Order.
"CANADIAN PRIME RATE" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum shall at all
times be equal to the higher of:
(a) the rate of interest announced publicly by
the Sub-Agent in Toronto, Canada from time to time as its
prime rate for determining rates of interest on commercial
loans in Canadian Dollars made by it in Canada; and
(b) 3/4 of one percent per annum above the rate
for 30-day Canadian Dollar bankers' acceptances that appears
on the Reuters Screen CDOR Page (or any replacement page) as
of 10:00 A.M. (Toronto, Ontario time) on the date of
determination.
"CANADIAN PROPERTIES" shall mean those properties listed on
Schedule 4.01(u)(i) under the heading "Canadian Properties".
"CANADIAN REVOLVING CREDIT ADVANCE" means Canadian Advances,
Canadian Letter of Credit Advances, Bankers Acceptances and BA
Equivalent Advances.
"CANADIAN REVOLVING CREDIT BORROWING" means a borrowing
consisting of simultaneous Canadian Revolving Credit Advances made by
the Canadian Lenders.
"CANADIAN REVOLVING CREDIT COMMITMENT" means, with respect to
any Canadian Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Canadian
Revolving Credit Commitment" or, if such Lender has entered into one or
more Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Lender's "Revolving Credit Commitment", as such amount
may be reduced at or prior to such time pursuant to Section 2.06.
"CANADIAN REVOLVING CREDIT NOTE" means a promissory note of a
Canadian Borrower payable to the order of any Canadian Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the
Canadian Revolving Credit Advances made by such Lender, as amended.
"CANADIAN SECURITY AGREEMENT" has the meaning specified in
Section 3.01(a)(iv).
"CANADIAN SECURITY DOCUMENTS" means the Quebec Security
Documents, the Canadian Security Agreement, the Canadian Intellectual
Property Agreement and the Canadian Mortgages.
11
"CANADIAN SECURED PARTY" means any Secured Party that has a
Canadian Revolving Credit Commitment, has purchased, issued,
participated in or otherwise acquired, a Canadian Revolving Credit
Advance or has issued or participated in any Debt incurred under the
Canadian Subfacility, or is a Hedge Bank in respect of a Secured Hedge
Agreement that is entered into with a Canadian Loan Party, or any Agent
acting on behalf thereof pursuant to any Canadian Security Document.
"CANADIAN SUBFACILITY" means, at any time, an amount equal to
the aggregate amount of the Canadian Lenders' Canadian Revolving Credit
Commitments at such time.
"CANADIAN SUBSIDIARY GUARANTORS" means the Canadian
Subsidiaries of the US Borrower listed on Schedule II hereto and each
other Canadian Subsidiary of the US Borrower that shall be required to
execute and deliver a guaranty pursuant to Section 5.01(j).
"CANADIAN SUBSIDIARY GUARANTY" means the guaranty of the US
Subsidiary Guarantors and the Canadian Subsidiary Guarantors referred
to in Section 3.01(a)(xvii) together with each other guaranty and
guaranty supplement delivered pursuant to Section 5.01(j), in each case
as amended, amended and restated, modified or otherwise supplemented.
"CAPITAL EXPENDITURE ACQUISITION BASKET" means, for the Stub
Period or any Fiscal Year, the amount set forth below for the Stub
Period or such Fiscal Year, as the case may be:
Period Amount
------ ------
Stub Period U.S. $2,000,000
Fiscal Year 2004 U.S. $30,000,000
Fiscal Year 2005 U.S. $40,000,000
Fiscal Year 2006 U.S. $40,000,000
Fiscal Year 2007 U.S. $40,000,000
Fiscal Year 2008 U.S. $45,000,000
Fiscal Year 2009 U.S. $45,000,000
provided, however, that if, for the Stub Period or any Fiscal Year set
forth above, the amount specified above for the Stub Period or such
Fiscal Year exceeds the aggregate amount of Investments made by the US
Borrower and its Subsidiaries during the Stub Period or such Fiscal
Year in accordance with the provisions of Section 5.02(f)(ix) (the
amount of such excess being the "EXCESS INVESTMENT AMOUNT"), the US
Borrower and its Subsidiaries shall be entitled to make additional
Investments pursuant to Section 5.02(f)(ix) in the immediately
succeeding Fiscal Year in an amount (such amount being referred to
herein as the "INVESTMENT CARRYOVER AMOUNT") equal to the lesser of (i)
the Excess Investment Amount and (ii) 25% of the amount specified above
for such immediately preceding Fiscal Year or the Stub Period, as the
case may be. References herein to "Subsidiaries" shall not be deemed to
include the Excluded Subsidiaries.
12
"CAPITAL EXPENDITURES" means, for any Person for any period,
the sum of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or
for replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as additions
to property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of
existing equipment or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment
for the equipment being traded in at such time or the amount of such
proceeds, as the case may be.
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"CARRYOVER AMOUNT" has the meaning specified in Section
5.02(o).
"CASES" shall mean the Chapter 11 cases of certain Loan
Parties before the Bankruptcy Court and the cases under the CCAA of
certain Loan Parties before the Canadian Court.
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the US Borrower or any of its Subsidiaries (other than the
Excluded Subsidiaries) free and clear of all Liens other than Liens
created under the Collateral Documents and having a maturity of not
greater than 180 days from the date of determination: (a) readily
marketable direct obligations of the Government of the United States or
Canada or any agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of the
Government of the United States or Canada, (b) insured certificates of
deposit of or time deposits with any commercial bank that is a Lender
Party or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c)
below, is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion,
(c) commercial paper in an aggregate amount of no more than $20,000,000
per issuer outstanding at any time, issued by any corporation organized
under the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by Moody's Investors Service,
Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's, a
division of The McGraw-Hill Companies, Inc. or (d) Investments,
classified in accordance with GAAP as Current Assets of the US Borrower
or any of its Subsidiaries, in money market investment programs
registered under the Investment Company Act of 1940, as amended, which
are administered by financial institutions that have the highest rating
obtainable from either Moody's or S&P, and the portfolios of which are
limited solely to Investments of the character, quality and maturity
described in clauses (a), (b) and (c) of this definition.
"CCAA" has the meaning specified in the recital of parties to
this Agreement.
13
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CFC" means an entity that is a controlled foreign corporation
under Section 957 of the Internal Revenue Code.
"CGMI" means Citigroup Global Markets Inc.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (a) any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Interests of
the US Borrower (or other securities convertible into such Voting
Interests) representing 40% or more of the combined voting power of all
Voting Interests of the US Borrower; or (b) during any period of up to
24 consecutive months, commencing before or after the date of this
Agreement, Continuing Directors shall cease for any reason to
constitute a majority of the board of directors of the US Borrower; or
(c) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the US
Borrower (or other securities convertible into such Voting Interests)
representing 40% or more of the combined voting power of all Voting
Interests of the US Borrower.
"CITIBANK" means Citibank, N.A.
"CLOSING DATE" means the Effective Date.
"CNAI" has the meaning specified in the recital of parties to
this Agreement.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
"COLLATERAL AGENT" has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL DOCUMENTS" means the US Security Agreement, the
Canadian Security Documents, the US Intellectual Property Security
Agreement, the Mortgages, the Vehicle Collateral Agency Agreement, each
of the collateral documents, instruments and agreements delivered
pursuant to Section 3.01(a)(i) and Section 5.01(j), and each other
agreement that creates a Lien in favor of the Collateral Agent for the
benefit of the Secured Parties.
14
"COMMITMENT" means a Term B Commitment, a Revolving Credit
Commitment, a Letter of Credit Commitment, a Canadian Revolving Credit
Commitment or an Incremental Term Commitment.
"CONFIDENTIAL INFORMATION" means information that any Loan
Party furnishes to any Agent or any Lender Party designated as
confidential, but does not include any such information that is or
becomes generally available to the public other than as a result of a
breach by such Agent or any Lender Party of its obligations hereunder
or that is or becomes available to such Agent or such Lender Party from
a source other than the Loan Parties that is not, to the best of such
Agent's or such Lender Party's knowledge, acting in violation of a
confidentiality agreement with a Loan Party.
"CONFIRMATION ORDER" has the meaning specified in the
preliminary statements to this Agreement.
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) 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 (A) for the
purchase or payment of any such primary obligation or (B) 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, assets, securities or services primarily for the
purpose of assuring the owner of 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 holder of
such primary obligation against loss in respect thereof; provided, that
solely for purposes of calculating the Leverage Ratio, the Obligations
under the PBGC Agreement shall not be deemed to be "Contingent
Obligations" hereunder. The amount of any Contingent Obligation shall
be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation
is made (or, if less, the maximum amount of such primary obligation for
which such Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder), as
determined by such Person in good faith.
"CONTINUING DIRECTORS" means the directors of the US Borrower
on the Effective Date, and each other director, if, in each case, such
other director's nomination for
15
election to the board of directors of the US Borrower is recommended by
at least 66-2/3% of the then Continuing Directors.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.10 or 2.11.
"CSFB" has the meaning specified in the recital of parties to
this Agreement.
"CURRENT ASSETS" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"CURRENT LIABILITIES" of any Person means all items (including
taxes accrued as estimated) that in accordance with GAAP would be
classified as current liabilities of such Person other than short term
Debt and current maturities of long term Debt.
"DEADLINE DATE" means the date that is 15 days after the
Effective Date.
"DEBT" of any Person means, without duplication for purposes
of calculating financial ratios, (a) all indebtedness of such Person
for borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such
Person's business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures, bankers' acceptances or other similar
instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or
similar facilities, (g) all Obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any
Equity Interests in such Person or any other Person or any warrants,
rights or options to acquire such Equity Interests, valued, in the case
of Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(h) all Obligations of such Person in respect of Hedge Agreements,
valued at the Agreement Value thereof, (i) all Contingent Obligations
and Off-Balance Sheet Obligations of such Person and (j) all
indebtedness and other payment Obligations referred to in clauses (a)
through (i) above of another Person secured by (or for which the holder
of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations.
"DEBT FOR BORROWED MONEY" of any Person means, at any date of
determination, (a) all items that, in accordance with GAAP, would be
classified as indebtedness on a Consolidated balance sheet of such
Person and all Off-Balance Sheet Obligations of such
16
Person at such date, (b) all Obligations under bankers' acceptance,
letter of credit or similar facilities and (c) solely for purposes of
calculating the Leverage Ratio, all Contingent Obligations of such
Person in respect of Debt, leases, dividends or other payment
Obligations of any other Person other than any of the Loan Parties;
provided that (i) in no event shall Debt in respect of the Bonding
Facilities be considered to be "Debt for Borrowed Money" for any
purpose hereunder and (ii) in no event shall letters of credit issued
under the Additional Letter of Credit Facility be considered to be
"Debt for Borrowing Money" for purposes of the Leverage Ratio and the
Maximum Senior Secured Leverage Ratio.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the passage of time or the
requirement that notice be given or both.
"DEFAULT INTEREST" has the meaning set forth in Section
2.08(b).
"DEFAULTED ADVANCE" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to any Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(f) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.16(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) any Canadian Lender pursuant to Section
2.02(c) to purchase a portion of a Canadian Revolving Credit Advance
made by such Canadian Lender, (b) any Revolving Issuing Bank pursuant
to Section 2.03(c) to purchase a portion of a Letter of Credit Advance
made by such Revolving Issuing Bank, (c) the Administrative Agent
pursuant to Section 2.02(e) to reimburse the Administrative Agent for
the amount of any Advance made by the Administrative Agent for the
account of such Lender Party, (d) any other Lender Party pursuant to
Section 2.14 to purchase any participation in Advances owing to such
other Lender Party, (e) any Swing Line Bank pursuant to Section 2.02(b)
to purchase a portion of a Swing Line Advance made by such Swing Line
Bank and (f) any Agent or any Issuing Bank pursuant to Section 7.05 to
reimburse such Agent or such Issuing Bank for such Lender Party's
ratable share of any amount required to be paid by the Lender Parties
to such Agent or such Issuing Bank as provided therein. In the event
that a portion of a Defaulted Amount shall be deemed paid pursuant to
Section 2.16(b), the remaining portion of such Defaulted Amount shall
be considered a Defaulted Amount originally required to be paid
hereunder or under any other Loan Document on the same date as the
Defaulted Amount so deemed paid in part.
17
"DEFAULTING LENDER" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(d).
"DISCLOSURE STATEMENT" means the disclosure statement with
respect to the Plan of Reorganization approved by a final order of the
Bankruptcy Court on January 23, 2003.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the US Borrower and the
Administrative Agent.
"DRAFT" means a blank bill of exchange, within the meaning of
the Bills of Exchange Act (Canada), drawn in Canadian Dollars by a
Canadian Borrower on any BA Lender, and which, except as otherwise
provided herein, has not been completed or accepted by such Lender.
"DRAWING" means the simultaneous (i) acceptance of Drafts and
purchase of Bankers' Acceptances by the Canadian Lenders, in accordance
with Section 2.18(a), and (ii) making of BA Equivalent Advances by
Non-BA Lenders.
"DRAWING PURCHASE PRICE" means, with respect to each Bankers'
Acceptance to be purchased by any Canadian Lender at any time, the
amount (adjusted to the nearest whole cent or, if there is no nearest
whole cent, the next higher whole cent) obtained by dividing (i) the
aggregate Face Amount of such Bankers' Acceptance, by (ii) the sum of
(A) one and (B) the product of (1) the BA Rate in effect at such time
(expressed as a decimal) multiplied by (2) a fraction the numerator of
which is the number of days in the term to maturity of such Bankers'
Acceptance and the denominator of which is 365 days or 366 days, as the
case may be.
"EBITDA" means, at any date of determination, the sum,
determined on a Consolidated basis, of (a) net income (or net loss),
(b) interest expense, (c) income tax expense (or income tax recovery),
(d) depreciation expense, (e) amortization expense, (f) reorganization
costs related to and arising from the Transaction incurred on or prior
to the Escrow Release Date in an aggregate amount not to exceed $41.1
million and (g) non-cash portion of non-operating expenses, in each
case of the US Borrower and its Subsidiaries, and only to the extent
included in the calculation of net income, determined in accordance
with GAAP for the most recently completed Measurement Period; provided,
that non-operating income and income tax recovery shall be excluded
from EBITDA to the extent included therein. For the purposes of
calculating "EBITDA", the term "Subsidiaries" shall not include
Excluded Subsidiaries.
18
"EFFECTIVE DATE" means the first date on which the conditions
set forth in Section 3.01 shall have been satisfied.
"ELIGIBLE ASSIGNEE" means (i) a Lender Party; (ii) an
Affiliate of a Lender Party; (iii) an Approved Fund; and (iv) any other
Person approved by the Administrative Agent and, unless a Default has
occurred and is continuing at the time any assignment is effected
pursuant to Section 8.07, the US Borrower, such approval, in each case,
not to be unreasonably withheld or delayed; provided, however, that
neither any Loan Party nor any Affiliate of a Loan Party shall qualify
as an Eligible Assignee under this definition; provided, further that,
with respect to any Advances under the Canadian Subfacility or Canadian
Revolving Credit Commitments, any Person that is not resident in Canada
for purposes of the Income Tax Act (Canada) shall not qualify as an
Eligible Assignee under this definition.
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL DEED RESTRICTION" means any document recorded
pursuant to any Environmental Law against any property owned by the
Loan Parties or any of their Subsidiaries which materially restricts
the use or occupation of such property, or materially restricts the
ownership or transfer of such property.
"ENVIRONMENTAL LAW" means any federal, state, provincial,
local, municipal or foreign statute, law, ordinance, rule, regulation,
code, order, writ, judgment, injunction, decree or judicial or agency
interpretation, policy or guidance relating to pollution or protection
of the environment, health, safety or natural resources applicable to
the operations of any Loan Party, including, without limitation, those
relating to the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in
19
such Person (including, without limitation, partnership, member or
trust interests therein), whether voting or nonvoting, and whether or
not such shares, warrants, options, rights or other interests are
authorized or otherwise existing on any date of determination.
"EQUIVALENT" means (a) in US Dollars of Canadian Dollars on
any date of determination, the equivalent in US Dollars of Canadian
Dollars determined by reference to the rate of exchange quoted by
Citibank in New York, New York at the close of business on the Business
Day immediately preceding any date of determination thereof, to prime
banks in New York, New York for the spot purchase in the New York
foreign exchange market of such amount in US Dollars with Canadian
Dollars and (b) in Canadian Dollars of US Dollars on any date of
determination, the equivalent in Canadian Dollars of US Dollars
determined by reference to the rate of exchange quoted by Citibank in
New York, New York at the close of business on the Business Day
immediately preceding any date of determination thereof, to prime banks
in New York, New York for the spot purchase in the New York foreign
exchange market of such amount in Canadian Dollars with US Dollars.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA EVENT" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or (ii) the requirements of Section 4043(b)
of ERISA apply with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for imposition of a lien under Section 302(f) of ERISA shall have been
met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such Plan.
20
"ESCROW ACCOUNT" means the account or accounts established by
the Escrow Account Bank that are the subject of the Escrow Agreement.
"ESCROW ACCOUNT BANK" means Deutsche Bank, or such other
institution or institutions selected by the Agents.
"ESCROW AGREEMENT" means the escrow agreement dated the date
hereof by and among the US Borrower, the Administrative Agent, on
behalf of itself and the other Lender Parties and the Escrow Account
Bank.
"ESCROW BANK" has the meaning specified in Section 2.16(c).
"ESCROW RELEASE DATE" means the first date on which the
conditions set forth in Section 3.02 shall have been satisfied.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in US Dollars
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period for a period equal to such Interest Period
(provided, that, if for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in US Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period); provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates) by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period; provided, further,
however, that in no event shall the Eurodollar Rate for any Interest
Period for any Eurodollar Rate Advance be less than 2.00% per annum.
"EURODOLLAR RATE ADVANCE" means a US Revolving Credit Advance,
a Term B Advance or Incremental Term Advance that bears interest as
provided in Section 2.08(a)(ii).
21
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXCESS CASH FLOW" means, for any Fiscal Year period (other
than the Fiscal Year ending 2003),
(a) the sum of:
(i) Consolidated net income (or loss) of the US
Borrower and its Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges
deducted in arriving at such Consolidated net income (or loss)
plus
(iii) if there was a net increase in Consolidated
Current Liabilities of the US Borrower and its Subsidiaries
during such period, the amount of such net increase plus
(iv) if there was a net decrease in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the US
Borrower and its Subsidiaries during such period, the amount
of such net decrease less
(b) the sum of:
(i) the aggregate amount of all non-cash credits
included in arriving at such Consolidated net income (or loss)
plus
(ii) if there was a net decrease in Consolidated
Current Liabilities of the US Borrower and its Subsidiaries
during such period, the amount of such net decrease plus
(iii) if there was a net increase in Consolidated
Current Assets (excluding cash and Cash Equivalents) of the US
Borrower and its Subsidiaries during such period, the amount
of such net increase plus
22
(iv) the aggregate amount of Capital Expenditures
of the US Borrower and its Subsidiaries paid in cash during
such period to the extent permitted by this Agreement plus
(v) the aggregate amount of consideration paid
in cash in respect of any acquisition consummated during such
period to the extent permitted by Section 5.02(f)(ix) plus
(vi) the aggregate amount of all regularly
scheduled principal payments of Funded Debt made during such
period plus
(vii) the aggregate principal amount of all
optional prepayments of the Term B Facility made during such
period pursuant to Section 2.07(a) plus
(viii) the aggregate principal amount of all
mandatory prepayments of the Term B Facility made during such
period pursuant to Section 2.07 (b)(ii)(A) or (D) to the
extent that the applicable Net Cash Proceeds were taken into
account in calculating such Consolidated net income (or loss).
For the purposes of calculating "Excess Cash Flow", the term
"Subsidiaries" shall not include any Excluded Subsidiary.
"EXCLUDED SUBSIDIARIES" means each of the Greyhound Lines,
Inc., Hotard Coaches, Inc. and Interstate Leasing, Inc. and each of
their respective Subsidiaries.
"EXISTING DEBT" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before the occurrence of the
Escrow Release Date.
"EXTRAORDINARY RECEIPT" means any cash received by or paid to
or for the account of any Person not in the ordinary course of
business, including, without limitation, tax refunds, pension plan
reversions, proceeds of insurance (including, without limitation, any
key man life insurance but excluding, proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings and (y) insurance and condemnation proceeds), condemnation
awards (and payments in lieu thereof), indemnity payments and any
purchase price adjustment received in connection with any purchase
agreement; provided, however, that an Extraordinary Receipt shall not
include (i) cash receipts received from proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments
to the extent that such proceeds, awards or payments (A) in respect of
loss or damage to equipment, fixed assets or real property are applied
(or in respect of which expenditures were previously incurred) to
replace or repair the equipment, fixed assets or real property in
respect of which such proceeds were received or otherwise reinvested in
the business of the US Borrower and its Subsidiaries in accordance with
the terms of the Loan Documents, so long as such application is made
within 9 months after the occurrence of such damage or loss or (B) are
received by any Person in respect of any third party claim against such
Person and applied to pay (or to reimburse such Person for its prior
payment of) such claim and the costs and expenses of such Person with
respect thereto and (ii) cash receipts received as released collateral
pledged in connection with the Bonding Facilities.
23
"FACE AMOUNT" means, with respect to any Bankers' Acceptance,
the amount payable to the holder of such Bankers' Acceptance on its
then existing Maturity Date, and, with respect to any Notional Bankers'
Acceptance, means the theoretical amount that would be payable to the
holder of such Notional Bankers' Acceptance on its then existing
maturity date; in this Agreement, the Face Amount of an outstanding
Notional Bankers' Acceptance shall mean an amount equal to the Face
Amount of the Notional Bankers' Acceptance in respect of which a
particular outstanding BA Equivalent Advance was made; in this
Agreement, references to outstanding Notional Bankers' Acceptances
shall be references to the outstanding BA Equivalent Advances made in
respect of such Notional Bankers' Acceptances.
"FACILITY" means the Term B Facility, the Revolving Credit
Facility, the Canadian Subfacility, the Swing Line Facility, the US
Revolving Letter of Credit Facility, the Canadian Letter of Credit
Facility, the Additional Letter of Credit Facility and the Incremental
Term Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by 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, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FEE LETTER" means the fee letter dated February 26, 2003
between LIL and the Agents, as amended.
"FISCAL YEAR" means a fiscal year of the US Borrower and its
Consolidated Subsidiaries ending on August 31 in any calendar year.
"FIXED CHARGE COVERAGE RATIO" means, at any date of
determination, the ratio of (a) the sum of Consolidated EBITDA plus
aggregate rental expense payable under leases of real or personal, or
mixed, property less Capital Expenditures (net of proceeds from
dispositions of assets) and cash taxes to (b) the sum of (i) the excess
of (x) interest payable on, and amortization of debt discount in
respect of, all Debt for Borrowed Money over (y) interest income plus
(ii) aggregate rental expense payable under leases of real or personal,
or mixed, property plus (iii) scheduled principal amounts of all Debt
for Borrowed Money payable, plus (iv) cash dividends payable on Equity
Interests of the US Borrower, in each case, of or by the US Borrower
and its Subsidiaries for the most recently completed Measurement
Period. For the purposes of calculating this ratio, the term
"Subsidiaries" shall not include any Excluded Subsidiary.
"FUND" means any Person (other than an individual) that is or
will be engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary
course of its business.
24
"FUNDED DEBT" of any Person means Debt in respect of the
Advances and the Bankers' Acceptances, in the case of any Borrower, and
all other Debt of such Person that by its terms matures more than one
year after the date of determination or matures within one year from
such date but is renewable or extendible, at the option of such Person,
to a date more than one year after such date or arises under a
revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year after
such date, excluding, however, all amounts of Funded Debt of such
Person required to be paid or prepaid within one year after the date of
determination.
"GAAP" has the meaning specified in Section 1.03.
"GOVERNMENTAL AUTHORITY" means any nation or government, any
state, province, city, municipal entity or other political subdivision
thereof, and any governmental, executive, legislative, judicial,
administrative or regulatory agency, department, authority,
instrumentality, commission, board, bureau or similar body, whether
federal, state, provincial, territorial, local or foreign.
"GOVERNMENTAL AUTHORIZATION" means any authorization,
approval, consent, franchise, license, covenant, order, ruling, permit,
certification, exemption, notice, declaration or similar right,
undertaking or other action of, to or by, or any filing, qualification
or registration with, any Governmental Authority.
"GREYHOUND CANADA" has the meaning specified in the recital of
parties to this Agreement.
"GREYHOUND LEASES" has the meaning set forth in the definition
of "Blocked Amount."
"GUARANTEED OBLIGATIONS" has the meaning specified in each of
the US Subsidiary Guaranty and the Canadian Subsidiary Guaranty.
"GUARANTORS" means the Borrower, the US Subsidiary Guarantors
and the Canadian Subsidiary Guarantors.
"HAZARDOUS MATERIALS" means chemicals, materials or substances
designated, classified or regulated as hazardous or toxic or as a
pollutant or contaminant under any Environmental Law including, without
limitation, petroleum or petroleum products, byproducts or breakdown
products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, fuel hedging contracts
and other hedging agreements.
"HEDGE BANK" means any Lender Party or an Affiliate of a
Lender Party in its capacity as a party to a Secured Hedge Agreement.
"IMMATERIAL SUBSIDIARY" means any Subsidiary listed on
Schedule 4.01(n) hereto.
25
"INCOME TAX ACT (CANADA)" means the Income Tax Act (Canada) as
the same may from time to time be in effect.
"INCREMENTAL TERM ADVANCES" means term advances made by one or
more Lenders to the US Borrower pursuant to Section 2.01(a)(ii) in
accordance with the relevant Incremental Term Loan Assumption
Agreement.
"INCREMENTAL TERM AMOUNT" means an amount up to $100,000,000.
"INCREMENTAL TERM APPLICABLE MARGIN" has the meaning set forth
in Section 2.05(b).
"INCREMENTAL TERM COMMITMENT" means, at any time, the
commitment of any Incremental Term Lender, established pursuant to
Section 2.05, to make Incremental Term Advances to the US Borrower or
if such Incremental Term Lender has entered into one or more Assignment
and Acceptances, set forth for such Lender in the Register Maintained
by the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Incremental Term Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.06.
"INCREMENTAL TERM FACILITY" means, at any time, the aggregate
amount of the Incremental Term Lenders' Incremental Term Commitments at
such time.
"INCREMENTAL TERM LENDERS" means a Lender with an Incremental
Term Commitment or outstanding Incremental Term Advances.
"INCREMENTAL TERM LOAN ASSUMPTION AGREEMENT" means an
incremental term loan assumption agreement in form and substance
reasonably satisfactory to the Administrative Agent and the US
Borrower, among the US Borrower, the Administrative Agent and one or
more Incremental Term Lenders.
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INFORMATION MEMORANDUM" means the information memorandum
dated May 12, 2003 used by the Administrative Agent in connection with
the syndication of the Commitments.
"INITIAL BASE RATE PERIOD" has the meaning specified in
Section 2.02(d).
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"INITIAL US REVOLVING ISSUING BANKS", "INITIAL LENDER
PARTIES", "INITIAL LENDERS", "INITIAL ADDITIONAL ISSUING Bank",
"INITIAL CANADIAN ISSUING BANK" and "INITIAL SWING LINE BANK" each has
the meaning specified in the recital of parties to this Agreement.
26
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTERCREDITOR AGREEMENTS" means each of (i) the intercreditor
agreement dated as of June __, 2003 among the Agent, on the behalf of
the Lenders, the PBGC and certain Loan Parties and (ii) the
intercreditor agreements dated as of June __, 2003 among the Agent, on
the behalf of the Lenders, the sureties under the Bonding Facilities
and certain Loan Parties.
"INTEREST COVERAGE RATIO" means, at any date of determination,
the ratio of (a) Consolidated EBITDA to (b) interest payable on, and
amortization of debt discount in respect of, all Debt for Borrowed
Money, in each case, of or by the US Borrower and its Subsidiaries for
the most recently completed Measurement Period. For the purposes of
calculating this ratio, the term "Subsidiaries" shall not include any
Excluded Subsidiary.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the applicable Borrower pursuant
to the provisions below and, thereafter, each subsequent period
commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the applicable
Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three or six months, as the
applicable Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(a) the applicable Borrower may not select any
Interest Period with respect to any Eurodollar Rate Advance
under a Facility that ends after any principal repayment
installment date for such Facility unless, after giving effect
to such selection, the aggregate principal amount of Base Rate
Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment
installment date for such Facility shall be at least equal to
the aggregate principal amount of Advances under such Facility
due and payable on or prior to such date;
(b) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
27
(d) whenever the first day of any Interest
Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar
month that succeeds such initial calendar month by the number
of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business
Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"INVENTORY" means all Inventory referred to in Section 1(b) of
the Security Agreement.
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including, without limitation, any acquisition by way
of a merger or consolidation (or similar transaction) and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (i) or (j) of the definition of "DEBT" in respect
of such Person.
"ISSUING BANK" means a Revolving Issuing Bank or the
Additional Issuing Bank.
"JOINT LEAD ARRANGERS" means each of CGMI and CSFB.
"LAIDLAW GROUP" has the meaning specified in the PBGC
Agreement.
"LAIDLAW TRANSIT" has the meaning specified in the recital of
parties to this Agreement.
"L/C COLLATERAL ACCOUNTS" means the US L/C Collateral Account
and the Canadian L/C Collateral Account.
"L/C DISBURSEMENT" means a US L/C Disbursement or a Canadian
L/C Disbursement, as applicable.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.04(c)(ii)(A).
"LENDER PARTY" means any Lender, any Issuing Bank, the Swing
Line Bank or any Canadian Lender.
"LENDER REPRESENTATIVES" has the meaning specified in Section
8.10.
"LENDERS" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
28
"LETTER OF CREDIT ADVANCE" means a Canadian Letter of Credit
Advance or a US Revolving Letter of Credit Advance.
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.03(a).
"LETTER OF CREDIT COMMITMENT" means a Canadian Letter of
Credit Commitment or a US Revolving Letter of Credit Commitment.
"LETTER OF CREDIT FACILITY" means, collectively, the Canadian
Letter of Credit Facility, the US Revolving Letter of Credit Facility
and the Additional Letter of Credit Facility.
"LETTERS OF CREDIT" means the Canadian Letters of Credit, the
US Revolving Letters of Credit and the Additional Letters of Credit.
"LEVERAGE RATIO" means, at any date of determination, the
ratio of Consolidated Debt for Borrowed Money of the US Borrower and
its Subsidiaries at such date to Consolidated EBITDA of the US Borrower
and its Subsidiaries for the most recently completed Measurement
Period; provided, that for purposes of determining the aggregate amount
of Consolidated Debt for Borrowed Money, any Contingent Obligation in
respect of operating leases shall be determined based on the Stipulated
Loss Value. For the purposes of calculating this ratio, the term
"Subsidiaries" shall not include any Excluded Subsidiary.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor, a statutory deemed trust and any easement, right of
way or other encumbrance on title to real property.
"LIL" has the meaning specified in the recital of parties to
this Agreement.
"LOAN DOCUMENTS" means (i) this Agreement, (ii) the Notes,
(iii) the Bankers' Acceptances, (iv) the US Subsidiary Guaranty, (v)
the Canadian Subsidiary Guaranty, (vi) the Collateral Documents, (vii)
the Fee Letter, (viii) each Letter of Credit Agreement, (ix) the Escrow
Agreement, (x) each Incremental Term Loan Assumption Agreement and (xi)
each Secured Hedge Agreement, in each case as amended.
"LOAN PARTIES" means the Borrowers, the US Subsidiary
Guarantors and the Canadian Subsidiary Guarantors.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in
the business, assets, operations, properties, condition (financial or
otherwise), contingent liabilities, prospects, material agreements or
customer relations of the US Borrower and its Subsidiaries, taken as a
whole.
29
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, assets, operations, properties, condition (financial
or otherwise), contingent liabilities, prospects, material agreements
or customer relations of the US Borrower and its Subsidiaries, taken as
a whole, (b) the rights and remedies of any Agent or any Lender Party
under any Transaction Document or (c) the ability of any Loan Party to
perform its Obligations under any Transaction Document to which it is
or is to be a party.
"MATERIAL CONTRACT" means each agreement set forth on Schedule
4.01(y).
"MATERIAL LEASES" shall mean those leases set forth in
Schedule 4.01(v)(ii) which schedule shall be modified after the Closing
Date to the extent that in the course of procuring mortgages with
respect to such Material Leases, the Administrative Agent determines
(in its sole discretion) that such leases are no longer material.
"MATERIAL PROPERTIES" shall mean those properties listed on
Schedule 4.01(u)(ii).
"MATURITY DATE" means, for each Bankers' Acceptance or BA
Equivalent Loan comprising part of the same Drawing, the date on which
the Face Amount for such Bankers' Acceptance or applicable Notional
Bankers' Acceptance, as the case may be, becomes due and payable in
accordance with the provisions set forth below, which shall be a
Canadian Business Day occurring thirty, sixty or ninety days or, if
available to all Canadian Lenders purchasing Bankers' Acceptances in
connection with the applicable Drawing, one hundred and eighty days
after the date on which such Bankers' Acceptance or Notional Bankers'
Acceptance is created and purchased as part of any Drawing, as the
Canadian Borrower may select upon notice received by the Administrative
Agent not later than 11:00 a.m. (New York City time) on a Canadian
Business Day at least two Canadian Business Days prior to the date on
which such Bankers' Acceptance or Notional Bankers' Acceptance is to be
accepted and purchased (whether as a new Drawing, by renewal or by
Conversion); provided, however, that:
(a) such Borrower may not select any Maturity
Date for any Bankers' Acceptance or BA Equivalent Loan that
occurs after the then scheduled Termination Date;
(b) the Maturity Date for all Bankers'
Acceptances and BA Equivalent Loans comprising part of the
same Drawing shall occur on the same date; and
(c) whenever the Maturity Date for any Bankers'
Acceptance or BA Equivalent Loan would otherwise occur on a
day other than a Canadian Business Day, such Maturity Date
shall be extended to occur on the next succeeding Canadian
Business Day.
"MAXIMUM SENIOR SECURED LEVERAGE RATIO" means, at any date of
determination, the ratio of (a) Consolidated Debt for Borrowed Money of
the US Borrower and its Subsidiaries at such date secured by (or for
which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) of the US Borrower or its
Subsidiaries, to (b) Consolidated EBITDA of the US Borrower and its
Subsidiaries for the most recently
30
completed Measurement Period. For the purposes of calculating this
ratio, the term "Subsidiaries" shall not include any Excluded
Subsidiary.
"MEASUREMENT PERIOD" means, at any date of determination, the
most recently completed four consecutive fiscal quarters of the US
Borrower ending on or prior to such date, provided that for purposes of
determining interest expense or amortization of principal amounts of
all Debt for Borrowed Money in connection with the calculation of any
financial covenant or financial ratio for (x) the four fiscal quarters
ended August 31, 2003, the amount of such item shall be equal to the
amount of such item for the fiscal quarter ended August 31, 2003
multiplied by four, (y) the four fiscal quarters ended November 30,
2003, the amount of such item shall be equal to the amount of such item
for the two fiscal quarters ended November 30, 2003 multiplied by two
and (z) the four fiscal quarters ended February 28, 2004, the amount of
such item shall be equal to the amount of such item for the three
fiscal quarters ended February 28, 2004 multiplied by 4/3.
"MORTGAGES" means the Canadian Mortgages and the US Mortgages.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, that is subject to ERISA and to which any
Loan Party or any ERISA Affiliate is making or accruing an obligation
to make contributions, or has within any of the preceding five plan
years made or accrued an obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"NET CASH PROCEEDS" means:
(a) with respect to the sale or other
disposition of any asset by the US Borrower or any of its
Subsidiaries (other than the Excluded Subsidiaries) (other
than any sale or other disposition permitted pursuant to
Section 5.02(e)(i), (ii), (iii), (iv) or (v)), the excess, if
any, of (i) the sum of cash and Cash Equivalents received in
connection with such sale or other disposition (including any
cash or Cash Equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received but excluding any
interest accruing on any such amounts) over (ii) the sum of
(A) the principal amount of any Debt that is secured by such
asset and that is required to be repaid in connection with the
sale thereof (other than Debt under the Loan Documents), (B)
the out-of-pocket costs, fees, commissions, premiums and
expenses incurred by the US Borrower or its Subsidiaries in
connection with such sale, (C) federal, state, provincial,
foreign and local taxes reasonably estimated to be actually
payable within two years of the date of the relevant asset
sale as a
31
result of any gain recognized in connection therewith and (D)
a reasonable reserve for any indemnification payments (fixed
and contingent) attributable to seller's indemnities to the
purchaser undertaken by the US Borrower or any of its
Subsidiaries in connection with such sale or disposition (but
excluding any indemnity, which by its terms will not, under
any circumstances, be made prior to the Termination Date in
respect of the Term B Facility);
(b) with respect to receipt of any cash
insurance and condemnation proceeds received in respect of any
asset by the US Borrower or any of its Subsidiaries (other
than the Excluded Subsidiaries), the excess, if any, of (i)
the aggregate amount of such proceeds received over (ii) the
sum of (A) the amount applied by the US Borrower and its
Subsidiaries to replace, repair or rebuild such asset, so long
as such application is commenced within 270 days after the
receipt of such proceeds, (B) the out-of-pocket costs, fees,
commissions, premiums and expenses incurred by the US Borrower
or its Subsidiaries in connection with the receipt of such
proceeds and (C) federal, state, provincial, foreign and local
taxes reasonably estimated to be actually paid as a result of
the receipt of such proceeds;
(c) with respect to the sale or issuance of any
capital stock or other Equity Interest by the US Borrower or
any of its Subsidiaries (other than the Excluded
Subsidiaries), the excess of (i) the sum of the cash and Cash
Equivalents received in connection with such sale over (ii)
the sum of (A) the underwriting discounts and commissions, and
other out-of-pocket costs, fees, commissions, premiums and
expenses, incurred by the issuer in connection with such sale
and (B) the aggregate amount of such Net Cash Proceeds up to
$50 million that are applied to make Investments permitted by
Section 5.02(f)(vii); provided, that Net Cash Proceeds shall
not include any funds received in connection with the exercise
of stock options granted to employees or directors of the US
Borrower or any of its Subsidiaries; and
(d) with respect to the incurrence or issuance
of Debt (other than Debt permitted by Section 5.02(b)) by the
US Borrower or any of its Subsidiaries (other than the
Excluded Subsidiaries), the excess of (i) the sum of the cash
and Cash Equivalents received in connection with such
incurrence or issuance over (ii) the underwriting discounts
and commissions, and other out-of-pocket costs, fees,
commissions, premiums and expenses, incurred by the US
Borrower or such Subsidiary in connection with such incurrence
or issuance.
"NET TANGIBLE ASSETS" shall on any date of determination mean
the sum of the net book value of plant, property and equipment owned by
the US Borrower and its Subsidiaries, (other than the Excluded
Subsidiaries) on such date, plus receivables owned on such date by the
US Borrower and the Guarantors (excluding any such receivables owed by
the US Borrower and any of its Subsidiaries) less net allowances for
doubtful accounts.
32
"NET TANGIBLE ASSETS RATIO" means on any date of determination
a ratio of (A) Net Tangible Assets on such date to (B) an amount equal
to the sum of the aggregate principal amount outstanding on such date
under the Facilities (including the Available Amount under outstanding
Letters of Credit), the aggregate principal amount of all secured Debt
outstanding on such date and the aggregate principal amount of the
Senior Notes outstanding on such date, excluding (i) Debt of Excluded
Subsidiaries and (ii) Debt in respect of letters of credit issued under
the Additional Letter of Credit Facility.
"NEW LINC" has the meaning specified in the recital of parties
to this Agreement.
"NON-BA LENDER" means a Canadian Lender which is not permitted
by applicable law or by customary market practices to stamp, for
purposes of subsequent sale, or accept, a Bankers' Acceptance.
"NOTE" means a Term B Note or a Revolving Credit Note.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF DRAWING" has the meaning specified in Section
2.18(a).
"NOTICE OF ISSUANCE" has the meaning specified in Section
2.03(a).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.01(f)(iv).
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.01(f)(iv).
"NOTIONAL BANKERS' ACCEPTANCE" has the meaning specified in
Section 2.18(a).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest, letter of credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"OFF BALANCE SHEET OBLIGATION" means, with respect to any
Person, any Obligation of such Person under a synthetic lease, tax
retention operating lease, off-balance
33
sheet loan or similar off-balance sheet financing classified as an
operating lease in accordance with GAAP, if such Obligations would give
rise to a claim against such Person in a proceeding referred to in
Section 6.01(f).
"OPEN YEAR" has the meaning specified in Section 4.01(q)(iii).
"OTHER TAXES" has the meaning specified in Section 2.13(b).
"PARENT GUARANTY" means the guaranty of the US Borrower
referred to in Section 3.01(a)(xxx) as amended, amended and restated,
modified or otherwise supplemented.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PBGC AGREEMENT" means that certain agreement to be entered
into between Laidlaw Inc., the Encumbered Subsidiaries (as defined
therein) and Greyhound Lines, Inc. and the PBGC on the Escrow Release
Date.
"PENSION PLANS" has the meaning specified in the PBGC
Agreement.
"PERMITTED ENCUMBRANCES" has the meaning specified in the
Mortgages.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b); (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and other
similar Liens arising in the ordinary course of business securing
obligations that (i) are not overdue for a period of more than 60 days
and (ii) individually or together with all other Permitted Liens
outstanding on any date of determination do not materially adversely
affect the use of the property to which they relate; (c) pledges or
deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; (d)
Permitted Encumbrances, (e) the silent second lien of the PBGC required
under the PBGC Agreement in an aggregate amount not to exceed $100
million, (f) pledges or deposits of cash, cash equivalents or
marketable securities required to secure the payment of incurred losses
in respect of insurance programs (for captive insurance Subsidiaries),
(g) pledges or deposits of cash, cash equivalents or marketable
securities, together with letters of credit that are issued with
respect thereto, solely to secure obligations of American Medical
Response, Inc. and its Subsidiaries with respect to its insurance
deductibles in an aggregate amount not to exceed $125 million, and (h)
pledges or deposits of cash or cash equivalents, together with letters
of credit that are issued with respect thereto, to secure obligations
under the Bonding Facilities in an aggregate amount not to exceed
$107.9 million (such amount to increase annually on each anniversary of
the Effective Date by $5 million).
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association,
34
joint venture or other entity, or a government or any political
subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLAN OF REORGANIZATION" has the meaning specified in the
preliminary statements to this Agreement.
"PLEDGED DEBT" has the meaning specified in the US Security
Agreement and the Canadian Security Agreement.
"PLEDGED EQUITY" has the meaning specified in the US Security
Agreement and the Canadian Security Agreement.
"PPSA" means, with respect to a particular Province of Canada,
the Personal Property Security Act enacted in force in such Province
from time to time or in respect of the Province of Quebec means the
Register of Personal and Moveable Real Rights.
"PREFERRED INTERESTS" means, with respect to any Person,
Equity Interests issued by such Person that are entitled to a
preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person's property and assets,
whether by dividend or upon liquidation.
"PREPAYMENT DATE" means with respect to any cash receipts from
a transaction described in clause (a), (b), (c) or (d) of the
definition of "Net Cash Proceeds", the third Business Day following the
date of the receipt of such Net Cash Proceeds by any Loan Party or any
of its Subsidiaries (other than any Excluded Subsidiary) or, if any
cash receipts from a transaction described in clause (a) or (b) of the
definition of "Net Cash Proceeds" are not reinvested in the business of
the US Borrower and its Subsidiaries (other than any Excluded
Subsidiary) in a manner consistent with the terms of this Agreement
within 9 months after the date of receipt thereof, the date which is 9
months following the date of receipt of such cash receipts.
"PRO RATA SHARE" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount
multiplied by a fraction the numerator of which is the amount of such
Lender's Revolving Credit Commitment at such time (or, if the
Commitments shall have been terminated pursuant to Section 2.06 or
6.01, such Lender's Revolving Credit Commitment as in effect
immediately prior to such termination) and the denominator of which is
the Revolving Credit Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.06 or 6.01, the
Revolving Credit Facility as in effect immediately prior to such
termination).
"PROPERTIES" shall mean those properties listed in Schedule
4.01(u)(i).
"QUEBEC SECURITY DOCUMENTS" means the Deeds of hypothec to
secure the payment of titles of indebtedness and a bond issued by each
grantor of a Deed of hypothec pursuant to the terms thereof.
35
"REDEEMABLE" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such Equity Interest, Debt,
right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates prior to the Termination Date in
respect of the Term B Facility, whether by operation of a sinking fund
or otherwise, or upon the occurrence of a condition not solely within
the control of the issuer or (b) is redeemable at the option of the
holder.
"REDUCTION AMOUNT" has the meaning specified in Section
2.07(b)(vii).
"REGISTER" has the meaning specified in Section 8.07(d).
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Senior Note Documents, any
intercompany notes issued pursuant to Section 5.02(b)(i)(B) or (ii),
the Tax Agreement, the Confirmation Order, the Plan of Reorganization,
the Disclosure Statement and the PBGC Agreement.
"REQUIRED FINANCIAL INFORMATION" means, as of any date, the
most recent financial statements required to be delivered to the Lender
Parties pursuant to Section 5.03(b) or 5.03(c) on or prior to such
date.
"REQUIRED LENDERS" means, at any time, Lenders owed or holding
at least a majority in interest of the sum of, without duplication, (a)
the aggregate principal amount of the Advances outstanding at such
time, (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (c) the aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances outstanding at such time,
(d) the aggregate unused Term B Commitments at such time and (e) the
aggregate Unused Revolving Credit Commitments at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Lenders at
such time (A) the aggregate principal amount of the Advances owing to
such Lender (in its capacity as a Lender) and outstanding at such time,
(B) such Lender's Pro Rata Share of the aggregate Available Amount of
all Letters of Credit outstanding at such time, (C) such Lender's Pro
Rata Share of the aggregate Face Amount of all Bankers' Acceptances and
Notional Bankers' Acceptances outstanding at such time, (D) the
aggregate unused Term B Commitment of such Lender at such time and (E)
the Unused Revolving Credit Commitment of such Lender at such time. For
purposes of this definition, (a) the aggregate principal amount of US
Letter of Credit Advances owing to any US Issuing Bank and of Swing
Line Advances owing to any Swing Line Bank, the Available Amount of
each US Letter of Credit shall be considered to be owed to the US
Revolving Credit Lenders ratably in accordance with their respective US
Revolving Credit Commitments and (b) the aggregate principal amount of
Canadian Advances owing to any Canadian Lender, of Canadian Letter of
Credit Advances owing to any Canadian Issuing Bank, the Available
Amount of each Canadian Letter of Credit and the Aggregate Face Amount
of all Bankers' Acceptances and Notional Bankers' Acceptances shall be
considered to be owed to the US Revolving
36
Credit Lenders and to the Canadian Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments.
"REQUIRED REVOLVING CREDIT LENDERS" means, at any time,
Lenders (not including any Defaulting Lender) owed or holding at least
a majority in interest of the sum of (a) the aggregate principal amount
of the Revolving Credit Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, (c) the aggregate Face Amount of all Bankers' Acceptances and
Notional Bankers' Acceptances outstanding at such time, and (d) the
aggregate Unused Revolving Credit Commitments at such time. For
purposes of this definition, (a) the aggregate principal amount of US
Letter of Credit Advances owing to any US Issuing Bank and of Swing
Line Advances owing to any Swing Line Bank, the Available Amount of
each US Letter of Credit shall be considered to be owed to the US
Revolving Credit Lenders ratably in accordance with their respective US
Revolving Credit Commitments and (b) the aggregate principal amount of
Canadian Revolving Credit Advances owing to any Canadian Lender, of
Canadian Letter of Credit Advances owing to any Canadian Issuing Bank,
the Available Amount of each Canadian Letter of Credit and the
Aggregate Face Amount of all Bankers' Acceptances and Notional Bankers'
Acceptances shall be considered to be owed to the US Revolving Credit
Lenders and to the Canadian Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments.
"REQUIRED TERM B LENDERS" means, at any time, Lenders (not
including any Defaulting Lender) owed or holding at least a majority in
interest of the sum of (a) the aggregate principal amount of the Term B
Advances outstanding at such time, (b) the aggregate unused Term B
Commitments at such time.
"RESPONSIBLE OFFICER" means any officer of any Loan Party or
any of its Subsidiaries.
"REVOLVING CREDIT ADVANCE" means a US Revolving Credit Advance
or a Canadian Revolving Credit Advance.
"REVOLVING CREDIT BORROWING" means a US Revolving Credit
Borrowing or a Canadian Revolving Credit Borrowing.
"REVOLVING CREDIT COMMITMENT" means a US Revolving Credit
Commitment or a Canadian Revolving Credit Commitment.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at
such time.
"REVOLVING CREDIT LENDER" means any US Revolving Credit Lender
or any Canadian Lender.
"REVOLVING CREDIT NOTE" means a US Revolving Credit Note or a
Canadian Revolving Credit Note.
37
"REVOLVING ISSUING BANKS" means each Initial US Revolving
Issuing Bank and any other Revolving Credit Lender approved as a US
Revolving Issuing Bank or a Canadian Issuing Bank by the Administrative
Agent and any Eligible Assignee to which a Letter of Credit Commitment
hereunder has been assigned pursuant to Section 8.07 so long as each
such Revolving Credit Lender or each such Eligible Assignee expressly
agrees to perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it
as a Revolving Issuing Bank and notifies the Administrative Agent of
its Applicable Lending Office and the amount of its Letter of Credit
Commitment (which information shall be recorded by the Administrative
Agent in the Register), for so long as such Initial US Revolving
Issuing Bank, Revolving Credit Lender or Eligible Assignee, as the case
may be, shall have a Letter of Credit Commitment.
"REVOLVING LETTER OF CREDIT" means a US Revolving Letter of
Credit or a Canadian Letter of Credit.
"REVOLVING LETTER OF CREDIT COMMITMENT" means a US Letter of
Credit Commitment or a Canadian Letter of Credit Commitment.
"SCHEDULE I LENDERS" shall mean, at any time, the Lenders that
are listed in Schedule I to the Bank Act (Canada) at such time.
"SCHEDULE II LENDERS" shall mean, at any time, the Lenders
that are listed in Schedule II to the Bank Act (Canada) at such time.
"SCHEDULE III LENDERS" shall mean, at any time, the Lenders
that are listed in Schedule III to the Bank Act (Canada) at such time.
"SECURED HEDGE AGREEMENT" means any Hedge Agreement required
or permitted under Article V that is entered into by and between any
Borrower and any Hedge Bank.
"SECURED OBLIGATIONS" has the meaning specified in Section 2
of the Security Agreement.
"SECURED PARTIES" means the Agents, the Lender Parties, and
the Hedge Banks and the Vehicle Collateral Agent.
"SENIOR NOTES" means the senior unsecured notes of the US
Borrower in an aggregate principal amount of $406 million issued
pursuant to the Senior Notes Indenture including any senior unsecured
notes issued in exchange therefor.
"SENIOR NOTES DOCUMENTS" means the Senior Notes Indentures and
all other agreements, indentures and instruments pursuant to which the
Senior Notes are issued, in each case as amended to the extent
permitted under the Loan Documents.
"SENIOR NOTES INDENTURES" means the Indenture dated as of June
3, 2003 between the US Borrower and Deutsche Bank Trust, as trustee, as
amended, to the extent permitted under the Loan Documents.
38
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that is subject to ERISA and
that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan
Party or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"STAMPING FEE" means, with respect to each Bankers' Acceptance
and Notional Bankers' Acceptance, an amount equal to (a) the Applicable
Margin, as in effect on the date of the Drawing or renewal, as the case
may be, of such Bankers' Acceptance or Notional Bankers' Acceptance
multiplied by (b) the Face Amount of such Bankers' Acceptance or
Notional Bankers' Acceptance, calculated on the basis of the term to
maturity of such Bankers' Acceptance or Notional Bankers' Acceptance
and a year of 365 days or 366 days, as the case may be.
"STANDBY LETTER OF CREDIT" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"STIPULATED LOSS VALUE" means, with respect to any operating
lease, the amount designated to be the stipulated loss value or similar
amount thereunder.
"STUB PERIOD" means the period from the Escrow Release Date
through August 31, 2003.
"SUB-AGENT" means Citibank Canada, for and on behalf of the
Administrative Agent for the benefit of the Canadian Secured Parties.
"SUBORDINATED DEBT" means any Debt of any Loan Party that is
subordinated to the Obligations of such Loan Party under the Loan
Documents on, and that otherwise contains, terms and conditions
satisfactory to the Required Lenders.
"SUBORDINATED OBLIGATIONS" has the meaning specified in
Section 7.06.
39
"SUBSIDIARY" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning specified in
Section 7.07(a) and "SUPPLEMENTAL COLLATERAL AGENTS" shall have the
corresponding meaning.
"SURVIVING DEBT" means Debt of each Loan Party and its
Subsidiaries (other than any Excluded Subsidiary) outstanding
immediately after giving effect to the Plan of Reorganization as set
forth on Schedule 4.01(s) hereto.
"SWING LINE ADVANCE" means an advance made by the Swing Line
Bank pursuant to Section 2.01(d) or any Revolving Credit Lender
pursuant to Section 2.02(b).
"SWING LINE BANK" means the Initial Swing Line Bank and any
Eligible Assignee to which the Swing Line Commitment hereunder has been
assigned pursuant to Section 8.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all
obligations that by the terms of this Agreement are required to be
performed by it as a Swing Line Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Swing Line
Commitment (which information shall be recorded by the Administrative
Agent in the Register), for so long as the Initial Swing Line Bank or
Eligible Assignee, as the case may be, shall have a Swing Line
Commitment.
"SWING LINE BORROWING" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank pursuant to Section 2.01(d) or
the Revolving Credit Lenders pursuant to Section 2.02(b).
"SWING LINE COMMITMENT" means with respect to the Swing Line
Bank at any time, the amount set forth opposite the Swing Line Bank's
name on Schedule I hereto under the caption "Swing Line Commitment" or,
if the Swing Line Bank has entered into an Assignment and Acceptance,
set forth for the Swing Line Bank in the Register maintained by the
Administrative Agent pursuant to Section 8.07(d) as the Swing Line
Bank's "Swing Line Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.06.
"SWING LINE FACILITY" means, at any time, an amount equal to
the amount of the Swing Line Bank's Swing Line Commitments at such
time, as such amount may be reduced at or prior to such time pursuant
to Section 2.06.
40
"TAX AGREEMENT" means the Tax Sharing Agreement in
substantially the form of Exhibit IX to the Plan of Reorganization, as
amended, to the extent permitted under the Loan Documents.
"TAXES" has the meaning specified in Section 2.13(a).
"TERM B ADVANCE" has the meaning specified in Section 2.01(a).
Unless the context shall otherwise require, the term "TERM B ADVANCE"
shall also include Incremental Term Advances.
"TERM B BORROWING" means a borrowing consisting of
simultaneous Term B Advances of the same Type made by the Term B
Lenders.
"TERM B COMMITMENT" means, with respect to any Term B Lender
at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Term B Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 8.07(d) as such Lender's "Term B Commitment",
as such amount may be reduced at or prior to such time pursuant to
Section 2.06. Unless the context shall otherwise require, after the
effectiveness of any Incremental Term Commitment, the term "TERM B
COMMITMENT" shall include such Incremental Term Commitment.
"TERM B FACILITY" means, at any time, the aggregate amount of
the Term B Lenders' Term B Commitments at such time.
"TERM B LENDER" means any Lender that has a Term B Commitment.
"TERM B NOTE" means a promissory note of the US Borrower
payable to the order of any Term B Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the US Borrower to
such Lender resulting from the Term B Advance made by such Lender, as
amended.
"TERMINATION DATE" means the earliest of (a) the date of
termination in whole of the Revolving Credit Commitments, the Letter of
Credit Commitments, the Additional Letter of Credit Commitments, the
Swing Line Commitments and the Term B Commitments pursuant to Section
2.06 or 6.01, (b)(i) for purposes of the Revolving Credit Facility, the
Swing Line Facility and the Letter of Credit Facilities, June __, 2008,
(ii) for purposes of the Term B Facility and for all other purposes,
June __, 2009 and (iii) for purposes of the Incremental Term Facility,
the date set forth in the Incremental Term Loan Assumption Agreement
and (c) the Deadline Date, to the extent the release from escrow
pursuant to Section 3.02 does not occur.
"TRADE LETTER OF CREDIT" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of inventory to any Borrower or any of its Subsidiaries (other
than any Excluded Subsidiary) to effect payment for such inventory.
41
"TRANSACTION" means the consummation of the Plan of
Reorganization, the Issuance of the Senior Notes and the other
transactions contemplated by the Transaction Documents.
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Related Documents.
"TRIGGERING EVENT" means, in respect of any bonded contract
under which a Loan Party is obligated, an event under the applicable
surety bond which triggers the obligation of the relevant surety under
such surety bond to perform the obligations of the relevant Loan Party
under such bonded contract.
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNDERGROUND STORAGE TANK" means any tank regulated pursuant
to the Resource Conservation and Recovery Act, 42 U.S.C. section 10901
et. seq.
"UNUSED CANADIAN REVOLVING CREDIT COMMITMENT" means, with
respect to any Canadian Lender at any time, (a) such Lender's Canadian
Revolving Credit Commitment at such time minus (b) the sum of (i) the
aggregate principal amount of all Canadian Revolving Credit Advances
made by such Lender (in its capacity as a Lender) and outstanding at
such time, plus (without duplication) (ii) such Lender's Pro Rata Share
of (A) the aggregate Available Amount of all Canadian Letters of Credit
outstanding at such time, and (B) the aggregate principal amount of all
Canadian Letter of Credit Advances made by the Canadian Issuing Banks
pursuant to Section 2.03(c) and outstanding at such time.
"UNUSED REVOLVING CREDIT COMMITMENT" means, with respect to
any Revolving Credit Lender at any time, (a) such Lender's Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances, Swing Line Advances
and Letter of Credit Advances made by such Lender (in its capacity as a
Lender) and outstanding at such time plus (without duplication) (ii)
such Lender's Pro Rata Share of (A) with respect to US Revolving Credit
Lenders, the aggregate Available Amount of all Revolving Letters of
Credit outstanding at such time and with respect to Canadian Lenders,
the aggregate Available Amount of all Canadian Letters of Credit
outstanding at such time, (B) with respect to US Revolving Credit
Lenders, the aggregate principal amount of all Letter of Credit
Advances made by the Issuing Banks pursuant to Section 2.03(c) and
outstanding at such time and with respect to the Canadian Lenders, the
aggregate principal amount of all Canadian Letter of Credit Advances
made by the Canadian Issuing Banks pursuant to Section 2.03(c) and
outstanding at such time, (C) with respect to US Revolving Credit
Lenders, the aggregate principal amount of all Canadian Revolving
Credit Advances made by the Canadian Lenders and outstanding at such
time, (D) with respect to the US Revolving Credit Lenders, the
aggregate principal amount of all Swing Line Advances made by the Swing
Line Banks pursuant to Section 2.01(d) and outstanding at such time and
(E) the
42
aggregate Face Amount of all Bankers' Acceptances and Notional Bankers'
Acceptances outstanding at such time.
"US BORROWER" has the meaning specified in the recital of
parties to this Agreement.
"US DOLLARS", "U.S.$" or "$" each means lawful money of the
United States of America.
"US INTELLECTUAL PROPERTY SECURITY AGREEMENT" means the
"Intellectual Property Security Agreement" as defined in the US
Security Agreement.
"US L/C COLLATERAL ACCOUNT" has the meaning specified in the
US Security Agreement.
"US L/C DISBURSEMENT" shall mean a payment or disbursement
made by any US Issuing Bank pursuant to a US Letter of Credit.
"US LOAN PARTY" means each Loan Party organized under the laws
of a political subdivision of the United States.
"US MORTGAGE POLICIES" has the meaning specified in Section
3.01(a)(iii)(B).
"US MORTGAGES" has the meaning specified in Section
3.01(a)(iii).
"US REVOLVING CREDIT ADVANCE" has the meaning specified in
Section 2.01(b) and includes US Letter of Credit Advances.
"US REVOLVING CREDIT BORROWING" means a borrowing consisting
of simultaneous US Revolving Credit Advances of the same Type made by
the US Revolving Credit Lenders.
"US REVOLVING CREDIT COMMITMENT" means, with respect to any US
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignment
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Revolving Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.06.
"US REVOLVING CREDIT LENDER" means any Revolving Credit Lender
that has a US Revolving Credit Commitment.
"US REVOLVING CREDIT NOTE" means a promissory note of the US
Borrower payable to the order of any US Revolving Credit Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of such Borrower to such Lender resulting from the
Revolving Credit Advances and the Letter of Credit Advances and Swing
Line Advances made by such Lender, as amended.
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"US REVOLVING ISSUING BANK" means Citibank, N.A. and any
Eligible Assignee to which the US Revolving Letter of Credit Commitment
hereunder has been assigned pursuant to Section 8.07 so long as such
Eligible Assignee expressly agrees to perform in accordance with their
terms all of the obligations that by the terms of this Agreement are
required to be performed by it as an US Revolving Issuing Bank and
notifies the Administrative Agent of its Applicable Lending Office and
the amount of its US Revolving Letter of Credit Commitment (which
information shall be recorded by the Administrative Agent in the
Register), for so long as such Initial US Revolving Issuing Bank or
Eligible Assignee, as the case may be, shall have a US Revolving Letter
of Credit Commitment.
"US REVOLVING LETTER OF CREDIT ADVANCE" means an advance made
by any US Revolving Issuing Bank or any Revolving Credit Lender
pursuant to Section 2.03(c).
"US REVOLVING LETTER OF CREDIT COMMITMENT" means, with respect
to any US Issuing Bank at any time, the amount set forth opposite such
Issuing Bank's name on Schedule I hereto under the caption "US
Revolving Letter of Credit Commitment" or, if such Issuing Bank has
entered into one or more Assignment and Acceptances, set forth for such
Issuing Bank in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as such Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"US REVOLVING LETTERS OF CREDIT" has the meaning specified in
Section 2.01(f).
"US REVOLVING LETTER OF CREDIT FACILITY" means, at any time,
an amount equal to the lesser of (a) the aggregate amount of the US
Issuing Banks' Letter of Credit Commitments at such time and (b) $35
million, as such amount may be reduced at or prior to such time
pursuant to Section 2.06.
"US SECURITY AGREEMENT" has the meaning specified in Section
3.01(a)(ii).
"US SUBSIDIARY GUARANTORS" means the United States
Subsidiaries of the US Borrower listed on Schedule II hereto and each
other United States Subsidiary of the US Borrower that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j).
"US SUBSIDIARY GUARANTY" means the guaranty of the US
Subsidiary Guarantors referred to in Section 3.01(a)(xvi) together with
each other guaranty and guaranty supplement delivered pursuant to
Section 5.01(j), in each case as amended, amended and restated,
modified or otherwise supplemented.
"VEHICLE COLLATERAL" has the meaning assigned to the term
"Vehicles" set forth in the US Security Agreement and the Canadian
Security Agreement.
"VEHICLE COLLATERAL AGENCY AGREEMENT" means the vehicle
collateral agency agreement dated June __, 2003, between the Agent and
the Vehicle Collateral Agent and acknowledged by the Loan Parties.
44
"VEHICLE COLLATERAL AGENT" means LexisNexis Document Solutions
Inc.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section
3(1) of ERISA, that is subject to ERISA and (a) is maintained for
employees of any Loan Party or any ERISA Affiliate or (b) in respect of
which any Loan Party or any ERISA Affiliate could have liability.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "FROM"
means "from and including" and the words "TO" and "UNTIL" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "AS
AMENDED" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with United States generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(g) ("GAAP").
SECTION 1.04. Currency Equivalents Generally. Any amount specified in
this Agreement (other than in Articles II, VII and IX) or any of the other Loan
Documents to be in US Dollars shall also include the equivalent of such amount
in any currency other than US Dollars, such equivalent amount to be determined
at the rate of exchange quoted by Citibank in New York, New York at the close of
business on the Business Day immediately preceding any date of determination
thereof, to prime banks in New York, New York for the spot purchase in the New
York foreign exchange market of such amount in US Dollars with such other
currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) (i) The Term
B Advances. Each Term B Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (a "TERM B ADVANCE") to the US
Borrower on the Effective Date in an amount not to exceed such Lender's Term B
Commitment at such time, and the proceeds of all such Term B Advances shall be
deposited directly into the Escrow Account with the US Borrower
45
only acquiring rights to such proceeds subject to the rights of the Lenders as
beneficiaries pursuant to the Escrow Agreement. The Term B Borrowing shall
consist of Term B Advances made simultaneously by the Term B Lenders ratably
according to their Term B Commitments. Amounts borrowed under this Section
2.01(a)(i) and repaid or prepaid may not be reborrowed. If the substantial
consummation of the Plan of Reorganization does not occur prior to the Deadline
Date, the proceeds of the Term B Advances shall be returned to the
Administrative Agent for the account of the Term B Lenders as set forth in the
Escrow Agreement and the Administrative Agent shall remit such proceeds back to
the Term B Lenders.
(ii) The Incremental Term Advances. Each Incremental Term
Lender severally agrees, on the terms and conditions set forth in Section 2.05,
to make a single Incremental Term Advance to the US Borrower on a date selected
by the US Borrower pursuant to Section 2.05, in an amount not to exceed such
Lender's Incremental Term Commitment at such time, subject to the terms and
conditions described in Section 2.05 and in the Incremental Term Loan Assumption
Agreement. Amounts borrowed under this Section 2.01(a)(ii) and repaid or prepaid
may not be reborrowed.
(b) The US Revolving Credit Advances. Each US Revolving
Credit Lender severally agrees, on the terms and conditions hereinafter set
forth, to make advances (each a "US REVOLVING CREDIT ADVANCE") in US Dollars to
the US Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in respect of the Revolving Credit
Facility in an amount for each such Advance not to exceed an amount equal to
such Lender's Unused Revolving Credit Commitment minus its Pro Rata Share of the
Blocked Amount at such time; provided that each such Lender agrees to make
advances of funds designated as the Blocked Amount solely to the extent that the
US Borrower has been called upon to make payment of the Stipulated Loss Value
under any guarantee of the Greyhound Leases in an amount for each such Advance
not to exceed such Lender's Unused Revolving Credit Commitment at such time. The
proceeds of any US Revolving Credit Advances made prior to the Escrow Release
Date shall be deposited directly into the Escrow Account with the US Borrower
only acquiring rights to such proceeds subject to the rights of the Lenders as
beneficiaries pursuant to the Escrow Agreement. Each US Revolving Credit
Borrowing shall be in an aggregate amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Swing Line Advances
or Letter of Credit Advances) and shall consist of US Revolving Credit Advances
made simultaneously by the US Revolving Credit Lenders ratably according to
their US Revolving Credit Commitments. If the substantial consummation of the
Plan of Reorganization does not occur prior to the Deadline Date, the proceeds
of the US Revolving Credit Advances shall be returned to the Administrative
Agent for the account of the US Revolving Credit Lenders as set forth in the
Escrow Agreement. Within the limits of each US Revolving Credit Lender's Unused
Revolving Credit Commitment in effect from time to time, the US Borrower may
borrow under this Section 2.01(b), prepay pursuant to Section 2.07(a) and
reborrow under this Section 2.01(b).
(c) The Canadian Advances. Each Canadian Lender severally
agrees on the terms and conditions hereinafter set forth, to make advances (each
a "CANADIAN ADVANCE") in Canadian Dollars to any Canadian Borrower from time to
time on any Business Day during the period from the Effective Date until the
Termination Date in respect of the Canadian Subfacility;
46
provided, that the amount for each such Advance shall not exceed the lesser of
(x) the aggregate of the Unused Canadian Revolving Credit Commitments at such
time and (y) the aggregate of the Unused Revolving Credit Commitments of the
Revolving Credit Lenders at such time (determined in the case of any Canadian
Revolving Credit Borrowing denominated in Canadian Dollars by reference to the
Equivalent thereof in US Dollars on such Business Day); and provided, further
that after giving effect to any Canadian Revolving Credit Borrowing under this
Section 2.01(c), the sum of the Equivalent in US Dollars on such date of the
aggregate principal amount outstanding on such date of, without duplication,
Canadian Revolving Credit Advances, the aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances outstanding and the aggregate
Available Amount of all outstanding Canadian Letters of Credit shall not exceed
U.S.$35 million. The proceeds of any Canadian Revolving Credit Advances made
prior to the Escrow Release Date shall be deposited directly into the Escrow
Account with the US Borrower only acquiring rights to such proceeds subject to
the rights of the Lenders as beneficiaries pursuant to the Escrow Agreement.
Each Canadian Revolving Credit Borrowing shall be in an aggregate amount of
CN$3,000,000 or an integral multiple of CN$500,000 in excess thereof (other than
a Canadian Revolving Credit Borrowing the proceeds of which shall be used solely
to repay or prepay in full outstanding Letter of Credit Advances) and shall
consist of Canadian Revolving Credit Advances made simultaneously by the
Canadian Lenders ratably according to their Canadian Revolving Credit
Commitments. If the substantial consummation of the Plan of Reorganization does
not occur prior to the Deadline Date, the proceeds of the Canadian Revolving
Credit Advances shall be returned to the Administrative Agent for the account of
the Canadian Lenders as set forth in the Escrow Agreement. Within the limits of
each Canadian Lender's Unused Canadian Revolving Credit Commitment in effect
from time to time, the Canadian Borrowers may borrow under this Section 2.01(c),
prepay pursuant to Section 2.07(a) and reborrow under this Section 2.01(c).
(d) The Swing Line Advances. The Swing Line Bank agrees
on the terms and conditions hereinafter set forth to make Swing Line Advances to
the US Borrower from time to time on any Business Day during the period from the
Escrow Release Date until the Termination Date in respect of the Revolving
Credit Facility (i) in an aggregate amount not to exceed at any time outstanding
the Swing Line Commitment and (ii) in an amount for each such Swing Line
Borrowing not to exceed the aggregate of the Unused Revolving Credit Commitments
of the US Revolving Credit Lenders at such time. No Swing Line Advance shall be
used for the purpose of funding the payment of principal of any other Swing Line
Advance. Each Swing Line Borrowing shall be in an amount of $1,000,000 or an
integral multiple of $500,000 in excess thereof and shall be made as a Base Rate
Advance. Within the limits of the Swing Line Facility and within the limits
referred to in clause (ii) above, so long as any Swing Line Bank, in its sole
discretion, elects to make Swing Line Advances, the Borrower may borrow under
this Section 2.01(d), repay pursuant to Section 2.04(c) or prepay pursuant to
Section 2.07(a) and reborrow under this Section 2.01(d).
(e) The Bankers' Acceptances. (i) Each Canadian Lender
severally agrees on the terms and conditions hereinafter set forth, in the case
of each BA Lender, to accept Drafts (each such Draft so accepted, a "BANKERS'
ACCEPTANCE") for the account of any Canadian Borrower, and to purchase such
Bankers' Acceptances and in the case of non-BA Lenders to make BA Equivalents
Advances, from time to time on any Canadian Business Day during the period from
the Escrow Release Date until the Termination Date; provided, that (i) the Face
47
Amount of such Bankers' Acceptance and of any Notional Bankers' Acceptance shall
not exceed the lesser of (x) the Unused Canadian Revolving Credit Commitment of
such Canadian Lender and (y) the Unused Revolving Credit Commitment of such
Canadian Lender; provided, further, that after giving effect to any Drawing
under this Section 2.01(e), the sum of the Equivalent in US Dollars on such date
of the aggregate principal amount outstanding on such date of, without
duplication, Canadian Revolving Credit Advances, the aggregate Face Amount of
all Bankers' Acceptances and the making of BA Equivalent Advances outstanding
and the aggregate Available Amount of all outstanding Canadian Letters of Credit
shall not exceed US$35 million. Each Drawing shall consist of the creation and
purchase of Bankers' Acceptances and the making of BA Equivalent Advances at or
about the same time by the Canadian Lenders ratably in accordance with their
respective Canadian Revolving Credit Commitments. Within the limits of the
Canadian Subfacility and within the limits referred to above in this Section
2.01(e), the Borrowers may borrow under this Section 2.01(e), prepay pursuant to
Section 2.07(a) and reborrow under this Section 2.01(e).
(f) Letters of Credit. (i) US Revolving Letters of
Credit. Each US Revolving Issuing Bank severally agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "US REVOLVING
LETTERS OF CREDIT") in US Dollars for the account of the US Borrower from time
to time on any Business Day during the period from the Escrow Release Date until
60 days before the Termination Date in respect of the Revolving Credit Facility
in an aggregate outstanding Available Amount (A) for all US Revolving Letters of
Credit issued by such US Revolving Issuing Bank not to exceed at any time the
lesser of (x) the US Revolving Letter of Credit Facility at such time and (y)
such Issuing Bank's Letter of Credit Commitment at such time and (B) for each
such US Revolving Letter of Credit not to exceed the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time; provided, however,
that in no event shall the aggregate outstanding Available Amount for all US
Revolving Letters of Credit exceed $35,000,000. Within the limits of the US
Revolving Letter of Credit Facility, and subject to the limits referred to
above, the US Borrower may request the issuance of US Revolving Letters of
Credit under this Section 2.01(f)(i), repay any Letter of Credit Advances
resulting from drawings thereunder pursuant to Section 2.04(e) and request the
issuance of additional US Revolving Letters of Credit under this Section
2.01(f)(i).
(ii) Canadian Letters of Credit. Each Canadian Issuing
Bank severally agrees, on the terms and conditions hereinafter set forth, to
issue (or cause its Affiliate that is a commercial bank to issue on its behalf)
letters of credit (the "CANADIAN LETTERS OF CREDIT") in Canadian Dollars for the
account of the Canadian Borrower from time to time on any Business Day during
the period from the Escrow Release Date until 60 days before the Termination
Date in respect of the Revolving Credit Facility in an aggregate outstanding
Available Amount (A) for all Canadian Letters of Credit issued by such Canadian
Issuing Bank not to exceed at any time the lesser of (x) the Canadian Letter of
Credit Facility at such time and (y) such Canadian Issuing Bank's Canadian
Letter of Credit Commitment at such time and (B) for each such Canadian Letter
of Credit not to exceed the Unused Revolving Credit Commitments of the Revolving
Credit Lenders at such time; provided, however, that in no event shall the
aggregate outstanding Available Amount for all Canadian Letters of Credit exceed
the Canadian equivalent of US$15,000,000; provided, further that after giving
effect to any issuance of a Canadian Letter of Credit, the sum of (without
duplication) (x) the Equivalent in US Dollars on such date of the
48
aggregate principal amount outstanding on such date of Canadian Revolving Credit
Advances, (y) the Equivalent in US Dollars on such date of the aggregate
Available Amount of all outstanding Canadian Letters of Credit and (z) the Face
Amount of all outstanding Bankers' Acceptances and Notional Bankers' Acceptances
shall not exceed U.S.$35 million. Within the limits of the Canadian Letter of
Credit and Notional Bankers' Acceptances Facility, and subject to the limits
referred to above, the applicable Canadian Borrower may request the issuance of
Canadian Letters of Credit under this Section 2.01(f)(ii), repay any Letter of
Credit Advances resulting from drawings thereunder pursuant to Section 2.04(e)
and request the issuance of additional Canadian Letters of Credit under this
Section 2.01(f)(ii).
(iii) Additional Letters of Credit. Each Additional Issuing
Bank agrees, on the terms and conditions hereinafter set forth, to issue (or
cause its Affiliate that is a commercial bank to issue on its behalf) letters of
credit (the "ADDITIONAL LETTERS OF CREDIT") in US Dollars for the account of the
US Borrower from time to time on any Business Day during the period from the
Escrow Release Date until 60 days before the Termination Date under the
Additional Letter of Credit Facility in an aggregate outstanding Available
Amount for all Additional Letters of Credit issued by an Additional Issuing Bank
not to exceed at any time the lesser of (A) the Additional Letter of Credit
Facility at such time and (B) the amount of cash on deposit in the Additional
Collateral Account at such time; provided, however, that in no event shall the
aggregate Available Amount for all Additional Letters of Credit exceed
$100,000,000. Within the limits of the Additional Letter of Credit Facility, and
subject to the limits referred to above, the US Borrower may request the
issuance of Additional Letters of Credit under this Section 2.01(f)(iii),
deposit additional amounts into the Additional Collateral Account and request
the issuance of additional Additional Letters of Credit under this Section
2.01(f)(iii).
(iv) Terms Applying to All Letters of Credit. No Letter of
Credit shall have an expiration date (including all rights of the applicable
Borrower or the beneficiary to require renewal) later than the earlier of 10
days before the Termination Date in respect of the Revolving Credit Facility and
(A) in the case of a Standby Letter of Credit, one year after the date of
issuance thereof, but may by its terms be renewable annually upon notice (a
"NOTICE OF RENEWAL") given to the Issuing Bank that issued such Standby Letter
of Credit and the Administrative Agent on or prior to any date for notice of
renewal set forth in such Letter of Credit but in any event at least three
Business Days prior to the date of the proposed renewal of such Standby Letter
of Credit and upon fulfillment of the applicable conditions set forth in Article
III unless such Issuing Bank has notified the applicable Borrower (with a copy
to the Administrative Agent) on or prior to the date for notice of termination
set forth in such Standby Letter of Credit but in any event at least 30 Business
Days prior to the date of automatic renewal of its election not to renew such
Standby Letter of Credit (a "NOTICE OF TERMINATION") and (B) in the case of a
Trade Letter of Credit, 60 days after the date of issuance thereof; provided,
that the terms of each Standby Letter of Credit that is automatically renewable
annually shall (x) require the Issuing Bank that issued such Standby Letter of
Credit to give the beneficiary named in such Standby Letter of Credit notice of
any Notice of Termination, (y) permit such beneficiary, upon receipt of such
notice, to draw under such Standby Letter of Credit prior to the date such
Standby Letter of Credit otherwise would have been automatically renewed and (z)
not permit the expiration date (after giving effect to any renewal) of such
Standby Letter of Credit in any event to be extended to a date later than 10
days before the Termination Date in respect of the Revolving Credit Facility. If
either a Notice of Renewal is not given by the applicable Borrower
49
or a Notice of Termination is given by the relevant Issuing Bank pursuant to the
immediately preceding sentence, such Standby Letter of Credit shall expire on
the date on which it otherwise would have been automatically renewed; provided,
however, that even in the absence of receipt of a Notice of Renewal the relevant
Issuing Bank may in its discretion, unless instructed to the contrary by the
Administrative Agent or the applicable Borrower, deem that a Notice of Renewal
had been timely delivered and in such case, a Notice of Renewal shall be deemed
to have been so delivered for all purposes under this Agreement.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on (A) the third Business Day prior to the
date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or (B) the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances
or (C) the first Canadian Business Day prior to the date of the proposed
Borrowing, in the case of a Canadian Advance or (D) the third Canadian Business
Day prior to the date of the proposed Borrowing in the case of Bankers'
Acceptances and BA Equivalent Advances, in each case by the Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof by telex or telecopier. Each such notice of a Borrowing (a "NOTICE OF
BORROWING") shall be by telephone, confirmed immediately in writing, or telex or
telecopier, in substantially the form of Exhibit B-1 hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Facility under which such
Borrowing is to be made, (iii) Type of Advances comprising such Borrowing (in
the case of a US Revolving Credit Borrowing), (iv) aggregate amount of such
Borrowing, (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance and the currency of each
such Advance; provided, that for the first 2 weeks after the Initial Base Rate
Period, the Borrowers may only select Interest Periods of one week for any
Eurodollar Rate Advance and (vi) in the case of a Borrowing consisting of
Bankers' Acceptances and BA Equivalent Advances, the term of each such Advance.
Each Appropriate Lender shall, before 11:00 A.M. (New York City time) on the
date of such Borrowing, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing in accordance
with the respective Commitments under the applicable Facility of such Lender and
the other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the applicable
Borrower by crediting the Borrower's Account; provided, however, that in the
case of any Revolving Credit Borrowing, the Administrative Agent shall first
make (x) a portion of such funds equal to the aggregate principal amount of any
Canadian Revolving Credit Advances made by any Canadian Lender or any Canadian
Issuing Bank, as the case may be, and by any other Revolving Credit Lender and
outstanding on the date of such Revolving Credit Borrowing, plus interest
accrued and unpaid thereon to and as of such date, available to such Canadian
Lender or such Canadian Issuing Bank, as the case may be, and such other
Revolving Credit Lenders for repayment of such Canadian Revolving Credit
Advances and Canadian Letter of Credit Advances, (y) a portion of such funds
equal to the aggregate principal amount of any US Letter of Credit Advances and
any Swing Line Advances made by any Swing Line Bank or any US Issuing Bank, as
the case may be, and by any other US Revolving Lender and outstanding on the
date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to such Swing Line Bank or US Issuing
Bank, as the case may be, and such
50
other Revolving Credit Lenders for repayment of such US Letter of Credit
Advances and Swing Line Advances and (z) a portion of such funds equal to the
Face Amount of any Bankers' Acceptance and any outstanding Notional Bankers'
Acceptance made by any Lender outstanding on the date of such Revolving Credit
Borrowing shall be deposited in the BA Collateral Account, and will be made
available to such Lenders for repayment of outstanding Bankers' Acceptances and
BA Equivalent Advances, as the case may be, upon the final maturity of such
Bankers' Acceptances and BA Equivalent Advances.
(b) Each Swing Line Borrowing shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the date of the proposed
Swing Line Borrowing, by the applicable Borrower to any Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "NOTICE OF
SWING LINE BORROWING") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (i) date of such
Borrowing, (ii) amount of such Borrowing and (iii) maturity of such Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing). If, in its sole discretion, such Swing Line Bank elects to
make the requested Swing Line Advance, such Swing Line Bank will make the amount
thereof available to the Administrative Agent at the Administrative Agent's
Account, in same day funds. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the applicable
Borrower by crediting such Borrower's Account. Upon written demand by any Swing
Line Bank with an outstanding Swing Line Advance, with a copy of such demand to
the Administrative Agent, each other Revolving Lender shall purchase from such
Swing Line Bank, and such Swing Line Bank shall sell and assign to each such
other Revolving Lender, such other Lender's Pro Rata Share of such outstanding
Swing Line Advance as of the date of such demand, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of such Swing Line Bank, by deposit to the Administrative Agent's
Account, in same day funds, an amount equal to the portion of the outstanding
principal amount of such Swing Line Advance to be purchased by such Lender. Each
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Swing Line
Advance on (i) the Business Day on which demand therefor is made by the Swing
Line Bank that made such Advance; provided, that notice of such demand is given
not later than 11:00 A.M. (New York City time) on such Business Day or (ii) the
first Business Day next succeeding such demand if notice of such demand is given
after such time. Upon any such assignment by a Swing Line Bank to any other
Revolving Credit Lender of a portion of a Swing Line Advance, such Swing Line
Bank represents and warrants to such other Lender that such Swing Line Bank is
the legal and beneficial owner of such interest being assigned by it, but makes
no other representation or warranty and assumes no responsibility with respect
to such Swing Line Advance, the Loan Documents or any Loan Party. If and to the
extent that any Revolving Credit Lender shall not have so made the amount of
such Swing Line Advance available to the Administrative Agent, such Revolving
Credit Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
such Swing Line Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate. If such Lender shall pay to the Administrative
Agent such amount for the account of such Swing Line Bank on any Business Day,
such amount so paid in respect of principal shall constitute a Swing Line
Advance made by such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Swing
51
Line Advance made by such Swing Line Bank shall be reduced by such amount on
such Business Day.
(c) Upon written demand by any Canadian Lender, with a
copy of such demand to the Administrative Agent, each other Revolving Credit
Lender (or any of its Canadian Affiliates) shall (i) purchase from such Canadian
Lender, and such Canadian Lender shall sell to each such other Revolving Credit
Lender (or such Affiliate) and assign such Canadian Lender's Pro Rata Share of
Canadian Revolving Credit Advances (other than Bankers' Acceptances and BA
Equivalent Advances) and (ii) purchase from such Canadian Lender a participation
in any Bankers' Acceptances or BA Equivalent Advances, as the case may be,
outstanding as of the date of such demand, by making available for the account
of its Applicable Lending Office to the Administrative Agent for the account of
such Canadian Lender, by deposit to the Administrative Agent's Account, in same
day funds, an amount equal to the portion of the outstanding principal amount
(or Face Amount, in the case of Bankers' Acceptances and Notional Bankers'
Acceptances) of such Canadian Revolving Credit Advances to be purchased by
assignment or participation, as the case may be, by such Lender (or such
Affiliate). Each Borrower hereby agrees to each such sale, assignment and
participation. Each Revolving Credit Lender agrees to purchase (or cause one of
its Canadian Affiliates to purchase) its Pro Rata Share of outstanding Canadian
Revolving Credit Advances (including, without limitation, outstanding Bankers'
Acceptances and Notional Bankers' Acceptances) on (i) the Business Day on which
demand therefor is made by the Canadian Lenders that made such Advances;
provided, that notice of such demand is given not later than 11:00 A.M. (New
York City time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by a Canadian Lender to any other Revolving Credit Lender
(or any of its Canadian Affiliates) of a portion of a Canadian Revolving Credit
Advance, such Canadian Lender (or such Affiliate) represents and warrants to
such other Lender that such Canadian Lender is the legal and beneficial owner of
such interest being assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such Canadian Revolving
Credit Advance, the Loan Documents or any Loan Party. If and to the extent that
any Revolving Credit Lender (or any of its Canadian Affiliates) shall not have
so made the amount of such Canadian Revolving Credit Advance available to the
Administrative Agent, such Revolving Credit Lender agrees to pay (or cause one
of its Canadian Affiliates to pay) to the Administrative Agent forthwith on
demand such amount together with interest thereon, for each day from the date of
demand by such Canadian Lender until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate. If such Lender (or any of its
Canadian Affiliates) shall pay to the Administrative Agent such amount for the
account of such Canadian Lenders on any Business Day, such amount so paid in
respect of principal (or Face Amount) shall constitute a Canadian Revolving
Credit Advance made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Canadian Revolving Credit
Advance made by such Canadian Lender shall be reduced by such amount on such
Business Day.
(d) Anything in subsection (a) above to the contrary
notwithstanding, (i) no Borrower may select Eurodollar Rate Advances for the
initial Borrowing hereunder and for the period from the date hereof to the date
that is 15 Business Days following the Escrow Release Date (or such earlier date
as shall be specified in its sole discretion by the Administrative Agent in a
written notice to the Borrowers and the Lenders) (the "INITIAL BASE RATE
PERIOD") or for any
52
Borrowing if the aggregate amount of such Borrowing is less than US$5,000,000 or
if the obligation of the Appropriate Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.10 or 2.11 and (ii) the Term B
Advances may not be outstanding as part of more than 8 separate Borrowings and
the Revolving Credit Advances may not be outstanding as part of more than 10
separate Borrowings.
(e) Each Notice of Borrowing and Notice of Swing Ling
Borrowing shall be irrevocable and binding on the applicable Borrower. In the
case of any Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the applicable Borrower shall indemnify
each Appropriate Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such Borrowing the applicable conditions set forth
in Article III, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(f) Unless the Administrative Agent shall have received
notice from an Appropriate Lender prior to the date of any Borrowing under a
Facility under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and each Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the applicable
Borrower until the date such amount is repaid or paid to the Administrative
Agent, at (i) in the case of such Borrower, the interest rate applicable at such
time under Section 2.08 to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Advance as part of such Borrowing for all purposes.
(g) The failure of any Lender to make the Advance to be
made by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters
of Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the US Borrower to any US Revolving Issuing Bank or any Additional
Issuing Bank, as the case may be, or by a Canadian Borrower to any Canadian
Issuing Bank, as the case may be, which shall give to the Administrative Agent
and each US Revolving
53
Credit Lender, in the case of a US Revolving Letter of Credit or each Canadian
Revolving Credit Lender in the case of a Canadian Letter of Credit, prompt
notice thereof by telecopier or electronic communication and such requirement
shall be deemed waived if such notice is accepted by the Administrative Agent
and the applicable Issuing Bank and received earlier than five days prior to the
date of proposed issuance. Each such notice of issuance of a Letter of Credit (a
"NOTICE OF ISSUANCE") shall be by telephone, confirmed immediately in writing,
or telecopier electronic communication, specifying therein the requested (A)
date of such issuance (which shall be a Business Day or a Canadian Business Day,
as applicable), (B) Available Amount and currency (which shall be US Dollars, in
the case of a US Revolving Letter of Credit or an Additional Letter of Credit or
Canadian Dollars, in the case of a Canadian Letter of Credit) of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as such Issuing Bank may specify to such Borrower for use in connection with
such requested Letter of Credit (a "LETTER OF CREDIT AGREEMENT"). If (x) the
requested form of such Letter of Credit is acceptable to such Issuing Bank in
its sole discretion and (y) (other than in the case of Additional Letters of
Credit) it has not received notice of objection to such issuance from Lenders
holding at least a majority of the Revolving Credit Commitments, such Issuing
Bank will, upon fulfillment of the applicable conditions set forth in Article
III, make such Letter of Credit available to such Borrower at its office
referred to in Section 8.02 or as otherwise agreed with such Borrower in
connection with such issuance. In the event and to the extent that the
provisions of any Letter of Credit Agreement shall conflict with this Agreement,
the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall
furnish (A) to the Administrative Agent on the first Business Day of each week a
written report summarizing issuance and expiration dates of Letters of Credit
issued by such Issuing Bank during the previous week and drawings during such
week under all Letters of Credit issued by such Issuing Bank, (B) to each
Revolving Credit Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued by such
Issuing Bank during the preceding month and drawings during such month under all
Letters of Credit issued by such Issuing Bank and (C) to the Administrative
Agent and each Revolving Credit Lender on the first Business Day of each
calendar quarter a written report setting forth the average daily aggregate
Available Amount during the preceding calendar quarter of all Letters of Credit
issued by such Issuing Bank.
(c) Participations in Letters of Credit. Upon the
issuance of a Revolving Letter of Credit by any Revolving Issuing Bank under
Section 2.03(a), such Revolving Issuing Bank shall be deemed, without further
action by any party hereto, to have sold to each Revolving Credit Lender, in the
case of a Canadian Letter of Credit, or each US Revolving Credit Lender, in the
case of a US Revolving Letter of Credit, and each such Revolving Credit Lender
shall be deemed, without further action by any party hereto, to have purchased
from such Issuing Bank, a participation in such Letter of Credit in an amount
for each Revolving Credit Lender equal to such Lender's Pro Rata Share of the
Available Amount of such Letter of Credit, effective upon the issuance of such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees to pay (or,
in the case of a Canadian Letter of Credit, to cause one of its Canadian
Affiliates to pay) such Lender's Pro Rata Share of each L/C Disbursement made by
such Revolving Issuing Bank and not reimbursed by
54
the applicable Borrower forthwith on the date due as provided in Section 2.04(e)
by making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Issuing Bank by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to such
Lender's Pro Rata Share of such L/C Disbursement. Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this Section 2.03(c) in respect of Revolving Letters of Credit is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or an Event of Default or
the termination of the Commitments, and that each such payment shall be made
without any off-set, abatement, withholding or reduction whatsoever. If and to
the extent that any Revolving Credit Lender (or, in the case of a Canadian
Letter of Credit, any of its Canadian Affiliates) shall not have so made the
amount of such L/C Disbursement available to the Administrative Agent, such
Revolving Credit Lender agrees to pay (or, in the case of a Canadian Letter of
credit, to cause one of its Canadian Affiliates to pay) to the Administrative
Agent forthwith on demand such amount together with interest thereon, for each
day from the date such L/C Disbursement is due pursuant to Section 2.04(e) until
the date such amount is paid to the Administrative Agent, at the Federal Funds
Rate for its account or the account of such Issuing Bank, as applicable. If such
Lender (or, in the case of a Canadian Letter of Credit, any of its Canadian
Affiliates) shall pay to the Administrative Agent such amount for the account of
such Revolving Issuing Bank on any Business Day, such amount so paid in respect
of principal shall constitute a Letter of Credit Advance made by such Lender on
such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Letter of Credit Advance made by such Issuing Bank shall be
reduced by such amount on such Business Day.
(d) Drawing and Reimbursement. The payment by any Issuing
Bank of a draft drawn under any Letter of Credit (other than any Additional
Letter of Credit) shall constitute for all purposes of this Agreement the making
by such Issuing Bank of a Letter of Credit Advance, which shall be a Base Rate
Advance, in the case of a Letter of Credit Advance made by a US Revolving
Issuing Bank or a Canadian Advance, in the case of a Letter of Credit Advance
made by a Canadian Issuing Bank, in each case in the amount of such draft.
(e) Failure to Make Letter of Credit Advances. The
failure of any Lender to make the Letter of Credit Advance to be made by it on
the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
(f) Additional Letter of Credit Drawing. If any draft is
drawn under any Additional Letter of Credit, the Additional Issuing Bank shall
pay such draft by withdrawing the amount of such draft from the Additional
Collateral Account.
SECTION 2.04. Repayment of Advances. (a) (i) Term B Advances. The US
Borrower shall repay to the Administrative Agent for the ratable account of the
Term B Lenders the aggregate outstanding principal amount of the Term B Advances
(other than the Incremental Term Advances) on the following dates in the amounts
indicated (which amounts shall be reduced as a result of the application of
prepayments in accordance with the order of priority set forth in Section 2.07):
55
Date Amount
---- ------
June 30, 2003 U.S. $ 6,250,000
September 30, 2003 U.S. $ 6,250,000
December 31, 2003 U.S. $ 6,250,000
March 31, 2004 U.S. $ 6,250,000
June 30, 2004 U.S. $ 6,250,000
September 30, 2004 U.S. $ 6,250,000
December 31, 2004 U.S. $ 6,250,000
March 31, 2005 U.S. $ 6,250,000
June 30, 2005 U.S. $ 6,250,000
September 30, 2005 U.S. $ 6,250,000
December 31, 2005 U.S. $ 6,250,000
March 31, 2006 U.S. $ 6,250,000
June 30, 2006 U.S. $ 6,250,000
September 30, 2006 U.S. $ 6,250,000
December 31, 2006 U.S. $ 6,250,000
March 31, 2007 U.S. $ 6,250,000
June 30, 2007 U.S. $ 6,250,000
September 30, 2007 U.S. $ 6,250,000
December 31, 2007 U.S. $ 6,250,000
March 31, 2008 U.S. $ 6,250,000
June 30, 2008 U.S. $125,000,000
September 30, 2008 U.S. $125,000,000
December 31, 2008 U.S. $125,000,000
June __, 2009 U.S. $125,000,000
provided, however, that the final principal installment shall be repaid on the
Termination Date in respect of the Term B Facility and in any event shall be in
an amount equal to the aggregate principal amount of the Term B Advances
outstanding on such date.
(ii) Incremental Term Advances. The US Borrower shall
repay to the Administrative Agent for the ratable account of the Incremental
Term Lenders the aggregate outstanding principal amount of the Incremental Term
Advances on the dates and amounts indicated in the Incremental Term Loan
Assumption Agreement (which amounts shall be reduced as a result of the
application of prepayments in accordance with Section 2.06 and the Incremental
Term Loan Assumption Agreement); provided, however, that the final principal
installment shall be repaid on the Termination Date in respect of the
Incremental Term Facility and in any event shall be in an amount equal to the
aggregate principal amount of the Incremental Term Advances outstanding on such
date.
(b) US Revolving Credit Advances. The applicable US
Borrower shall repay to the Administrative Agent for the ratable account of the
US Revolving Credit Lenders on the Termination Date in respect of the Revolving
Credit Facility the aggregate principal amount of the US Revolving Credit
Advances then outstanding.
(c) Swing Line Advances. The US Borrower shall repay to
the Administrative Agent for the account of each Swing Line Bank and each other
Revolving Credit
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Lender that has made a Swing Line Advance the outstanding principal amount of
each Swing Line Advance made by each of them on the earlier of the maturity date
specified in the applicable Notice of Swing Line Borrowing (which maturity shall
be no later than the seventh day after the requested date of such Borrowing) and
the Termination Date.
(d) Canadian Revolving Credit Advances, Bankers'
Acceptances and BA Equivalent Advances. The applicable Canadian Borrower shall
repay to the Administrative Agent for the account of each Canadian Lender and
each other Revolving Credit Lender that has made a Canadian Revolving Credit
Advance or purchased and accepted a Bankers' Acceptance or made a BA Equivalent
Advance the outstanding principal amount of each Canadian Revolving Credit
Advance and the aggregate Face Amount of the Bankers' Acceptances and
corresponding Notional Bankers' Acceptances, as applicable, made by each of them
on the Termination Date in respect of the Revolving Credit Facility (subject to
earlier repayment on the applicable Maturity Date for Bankers' Acceptances as
provided herein).
(e) Letter of Credit Advances. (i) The applicable
Borrower shall repay to the Administrative Agent for the account of each
Revolving Issuing Bank and each other Revolving Credit Lender that has made a
Letter of Credit Advance on the earlier of demand and the Termination Date in
respect of the Revolving Credit Facility the outstanding principal amount of
each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrowers under this
Agreement, any Letter of Credit Agreement and any other agreement or instrument
relating to any Letter of Credit shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances (it
being understood that any such payment by any Borrower is without prejudice to,
and does not constitute a waiver of, any rights such Borrower might have or
might acquire as a result of the payment by any Issuing Bank of any draft or the
reimbursement by such Borrower thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C RELATED DOCUMENTS");
(B) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations of such
Borrower in respect of any L/C Related Document or any other amendment
or waiver of or any consent to departure from all or any of the L/C
Related Documents;
(C) the existence of any claim, set-off, defense or other
right that such Borrower may have at any time against any beneficiary
or any transferee of a Letter of Credit (or any Persons for which any
such beneficiary or any such transferee may be acting), any Issuing
Bank or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
57
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft, certificate or other document that
does not strictly comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any
Collateral or other collateral, or any release or amendment or waiver
of or consent to departure from the Guaranties or any other guarantee,
for all or any of the Obligations of such Borrower in respect of the
L/C Related Documents; or
(G) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute a
defense available to, or a discharge of, such Borrower or a guarantor.
SECTION 2.05. Incremental Term Loan Commitments. (a) The US Borrower
may, at one time only during the term of the Term B Facility and prior to June
30, 2006, by written notice to the Administrative Agent, request Incremental
Term Commitments which shall have substantially similar terms to the Term B
Commitments (other than with respect to amortization and interest rate spread)
in an amount not to exceed the Incremental Term Amount from one or more
Incremental Term Lenders, which may include any existing Lender; provided, that
each Incremental Term Lender, if not already a Lender hereunder, shall be
subject to the approval of the Administrative Agent (which approval shall not be
unreasonably withheld and, if withheld, the reason therefor shall be specified
in writing). Such notice shall set forth the amount of the Incremental Term
Commitments being requested (which shall be in a minimum amount of $50,000,000,
a maximum amount of $100,000,000 and in minimum increments of $1,000,000).
(b) The US Borrower and each Incremental Term Lender
shall execute and deliver to the Administrative Agent an Incremental Term Loan
Assumption Agreement and such other documentation as the Administrative Agent
shall reasonably specify to evidence the Incremental Term Commitment of such
Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall
specify the terms of the Incremental Term Advances to be made thereunder with
respect to interest rate spreads (the "INCREMENTAL TERM LOAN APPLICABLE
MARGIN"); provided, that, without the prior written consent of the Required
Lenders, (i) the final maturity date of any Incremental Term Advances shall be
no earlier than the Termination Date with respect to the Term B Facility and
(ii) the average life to maturity of any Incremental Term Advances shall be no
shorter than the average life to maturity of the loans under the Term B
Facility. The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Incremental Term Loan Assumption Agreement. Each of the
parties hereto hereby agrees that, upon the effectiveness of any Incremental
Term Loan Assumption Agreement, this Agreement shall be deemed amended to the
extent (but only to the extent) necessary to reflect the existence and terms of
the Incremental Term Commitment evidenced thereby. Any such deemed amendment may
be memorialized in writing by the Administrative Agent with the US Borrower's
consent (not to be unreasonably withheld) and furnished to the other parties
hereto.
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Notwithstanding the foregoing, to the extent any terms in the Incremental Term
Loan Assumption Agreement are more favorable to the Incremental Term Lenders
than the terms of the Term B Facility are to the Term B Lenders, the Term B
Facility shall be modified to include such more favorable terms to the extent
directed by the Administrative Agent, in its sole discretion.
(c) Notwithstanding the foregoing, no Incremental Term
Commitment shall become effective under this Section 2.05 unless (i) on the date
of such effectiveness, the conditions set forth in Section 3.02 shall be
satisfied and the Administrative Agent shall have received a certificate to that
effect dated such date and executed by the Chief Financial Officer, Treasurer or
Assistant Treasurer of the US Borrower, (ii) the Leverage Ratio as of the last
day of the preceding fiscal quarter would be less than the ratios required on
such date by at least a 0.25 to 1.00 ratio, as if the Incremental Term
Commitments requested were incurred as Incremental Term Advances on such date
(and any Debt to be repaid or Investments to be made with the proceeds thereof
were repaid or made on such date), and (iii) the Administrative Agent shall have
received (with sufficient copies for each of the Incremental Term Lenders)
closing certificates and documentation reasonably specified by the
Administrative Agent.
SECTION 2.06. Termination or Reduction of the Commitments. (a)
Optional. The Borrowers may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part (i) the unused
portions of the Term B Commitments, the Canadian Subfacility, the US Revolving
Letter of Credit Facility, the Additional Letter of Credit Facility or the
Canadian Letter of Credit Facility and (ii) the Unused Revolving Credit
Commitments; provided, however, that each partial reduction of a Facility (i)
shall be in an aggregate amount of U.S. $5,000,000 or an integral multiple of
U.S. $1,000,000 in excess thereof (or, in each case, the Equivalent thereof in
Canadian Dollars) and (ii) shall be made ratably among the Appropriate Lenders
in accordance with their Commitments with respect to such Facility.
(b) Mandatory. (i) From time to time upon each repayment
or prepayment of the Term B Advances, the aggregate Term B Commitments of the
Term B Lenders shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate Term B
Commitments immediately prior to such reduction exceed the aggregate unpaid
principal amount of the Term B Advances then outstanding (after giving effect to
any such repayment or prepayment thereof).
(ii) The US Revolving Letter of Credit Facility shall be
permanently reduced from time to time on the date of each reduction in the US
Revolving Credit Facility by the amount, if any, by which the amount of the US
Revolving Letter of Credit Facility exceeds the US Revolving Credit Facility
after giving effect to such reduction of the US Revolving Credit Facility.
(iii) The Canadian Letter of Credit Facility shall be
permanently reduced from time to time on the date of each reduction in the
Canadian Subfacility by the amount, if any, by which the amount of the Canadian
Letter of Credit Facility exceeds the Canadian Subfacility after giving effect
to such reduction of the Canadian Subfacility.
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(iv) The Canadian Subfacility shall be permanently reduced
from time to time on the date of each reduction in the Revolving Credit Facility
by the amount, if any, by which the amount of the Canadian Subfacility exceeds
the Revolving Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
(v) The Swing Line Facility shall be permanently reduced
from time to time on the date of each reduction in the US Revolving Credit
Facility by the amount, if any, by which the amount of the Swing Line Facility
exceeds the US Revolving Credit Facility after giving effect to such reduction
of the US Revolving Credit Facility.
(vi) The Revolving Credit Facility shall be automatically
and permanently reduced, on a pro rata basis, on each date on which prepayment
thereof is required to be made pursuant to Section 2.07(b)(i) or (ii) in an
amount equal to the applicable Reduction Amount; provided, that each such
reduction of the Revolving Credit Facility shall be made ratably among the
Revolving Credit Lenders in accordance with their Revolving Credit Commitments.
(c) Additional Collateral Account. Upon any reduction in
whole or in part of the unused portion of the Additional Letter of Credit
Facility, the Administrative Agent shall withdraw an amount equal to such
reduction from the Additional Collateral Account and shall either (i) if the
Administrative Agent has received a certificate of the US Borrower certifying
that the US Borrower or any of its Subsidiaries shall use all or a portion of
the amounts on deposit in the Additional Collateral Account up to the amount of
such reduction as cash collateral for an obligation of the US Borrower or any of
its Subsidiaries in lieu of having a Letter of Credit issued in respect of such
obligation, remit such amount specified in such certificate to the US Borrower
or (ii) otherwise apply such amount as set forth in Section 2.07(b)(viii).
SECTION 2.07. Prepayments. (a) Optional. Any Borrower may, upon at
least one Business Day's notice in the case of Base Rate Advances, one Canadian
Business Day's notice in the case of Canadian Advances and three Business Days'
notice in the case of Eurodollar Rate Advances, in each case to the
Administrative Agent by 11:00 A.M. (New York City time) on such day, stating the
proposed date and aggregate principal amount of the prepayment, and if such
notice is given such Borrower shall, prepay the outstanding aggregate principal
amount of such Advances comprising part of the same Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the aggregate principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount of U.S. $5,000,000
or an integral multiple of U.S. $1,000,000 in excess thereof (or the Equivalent
thereof in Canadian Dollars if applicable) and (y) if any prepayment of a
Eurodollar Rate Advance is made on a date other than the last day of an Interest
Period for such Advance, such Borrower shall also pay any amounts owing pursuant
to Section 8.04(c); provided, further that optional prepayments of outstanding
Bankers' Acceptances shall not be permitted hereunder. Each such prepayment of
any Term B Advances shall be applied to the installments thereof on a pro rata
basis.
(b) Mandatory. (i) The US Borrower shall, on the 90th day
following the end of each Fiscal Year thereafter, prepay an aggregate principal
amount of the Advances comprising part of the same Borrowings and deposit an
amount in the L/C Collateral Account as set forth in clause (vii) below in an
amount equal to (A) 75% of the amount of Excess Cash Flow for such
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Fiscal Year, as applicable, if the Leverage Ratio as of the last day of such
Fiscal Year is greater than or equal to 2.25:1, (B) 50% of the amount of Excess
Cash Flow for such Fiscal Year, as applicable, if the Leverage Ratio as of the
last day of such Fiscal Year is less than 2.25:1 but greater than or equal to
1.50:1 and (C) which percentage shall be reduced to 0% of the amount of Excess
Cash Flow for such Fiscal Year, as applicable, if the Leverage Ratio as of the
last day of such Fiscal Year is less than 1.50:1. Each such prepayment shall be
applied first ratably to each of the Term B Facility and the Incremental Term
Facility, and to the installments of each such Facility on a pro rata basis and
second to the Revolving Credit Facility as set forth in clause (vii) below.
(ii) The US Borrower shall, on the Prepayment Date in
respect of the transaction resulting in Net Cash Proceeds, prepay an aggregate
principal amount of the Advances comprising part of the same Borrowings and
deposit an amount in the L/C Collateral Account or the BA Collateral Account, if
applicable, in an amount equal to the percentage of Net Cash Proceeds
hereinafter set forth: (A) in the case of any transaction described in either
clause (a) or (b) of the definition of Net Cash Proceeds, the greater of (i) 75%
of the Net Cash Proceeds from such transaction and (ii) the amount of such Net
Cash Proceeds necessary to maintain a Leverage Ratio as of the end of the most
recent Measurement Period of 2.00:1 (calculated on a pro forma basis after
giving effect to such transaction), (B) in the case of clause (d) of the
definition of Net Cash Proceeds, if the Leverage Ratio after giving effect to
such transaction would be greater than or equal to 1.50:1, 100% of such Net Cash
Proceeds or if the Leverage Ratio after giving effect to such transaction is
less than 1.50:1, 50% of such Net Cash Proceeds, (C) in the case of any
transaction described in clause (c) of the definition of Net Cash Proceeds, if
after giving effect to such transaction the Leverage Ratio is greater than or
equal to 1.50:1, 50% of such Net Cash Proceeds or if the Leverage Ratio after
giving effect to such transaction is less than 1.50:1, 0% of such Net Proceeds
and (D) 100% of Extraordinary Receipts in excess of an aggregate amount equal to
$5,000,000 received by or paid to or for the account of any Loan Party or any of
its Subsidiaries (other than any Excluded Subsidiary) and not otherwise included
in clause (A), (B) or (C) above, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings and deposit an amount in the L/C
Collateral Account or the BA Collateral Account, as applicable, in an amount
equal to the amount of such Net Cash Proceeds or Extraordinary Receipts. Each
such prepayment shall be applied first ratably to each of the Term B Facility
and the Incremental Term Facility and to the installments of each such Facility
on a pro rata basis and second to the Revolving Credit Facility as set forth in
clause (vii) below.
(iii) The Borrowers shall, on each Business Day, prepay an
aggregate principal amount of the US Revolving Credit Advances comprising part
of the same Borrowings, the US Letter of Credit Advances, the Swing Line
Advances, the Canadian Advances comprising part of the same Borrowings and the
Canadian Letter of Credit Advances and deposit an amount (1) in the US L/C
Collateral Account in an amount equal to the amount by which (A) the sum of the
aggregate principal amount of (x) the US Revolving Credit Advances and (y) the
US Letter of Credit Advances then outstanding plus the aggregate Available
Amount of all US Letters of Credit then outstanding exceeds (B) the US Revolving
Credit Facility on such Business Day (determined in the case of any of the
foregoing denominated in Canadian Dollars by reference to the Equivalent thereof
in US Dollars on such Business Day) and (2) in the Canadian L/C Collateral
Account in an amount equal to the amount by which (A) the sum of the aggregate
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principal amount of (x) the Canadian Advances, (y) the Canadian Letter of Credit
Advances and (z) the Face Amount of outstanding Bankers' Acceptances and
Notional Bankers' Acceptances then outstanding plus the aggregate Available
Amount of all Canadian Letters of Credit then outstanding exceeds (B) the
Canadian Subfacility on such Business Day (determined in the case of any of the
foregoing by reference to the Equivalent thereof in US Dollars on such Business
Day).
(iv) The Borrowers shall, on each Business Day, pay to the
Administrative Agent for deposit in (A) the US L/C Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the US L/C Collateral
Account to equal the amount by which the aggregate Available Amount of all US
Revolving Letters of Credit then outstanding exceeds the US Revolving Letter of
Credit Facility on such Business Day and (B) in the Canadian L/C Collateral
Account an amount sufficient to cause the aggregate amount on deposit in the
Canadian L/C Collateral Account to equal the amount by which the aggregate
Available Amount of all Canadian Revolving Letters of Credit then outstanding
exceeds the Canadian Letter of Credit Facility (determined in the case of any
Canadian Letter of Credit by reference to the Equivalent thereof in US Dollars
on such Business Day).
(v) The applicable Canadian Borrower shall, on each
Canadian Business Day, pay to the Administrative Agent for deposit in the BA
Collateral Account an amount sufficient to cause the aggregate amount on deposit
in such account to equal the amount by which the aggregate Face Amount of all
Bankers' Acceptances and Notional Bankers' Acceptances then outstanding under
the Canadian Subfacility exceeds the Canadian Subfacility on such Canadian
Business Day.
(vi) Prepayments of the Revolving Credit Facility made
pursuant to clause (i), (ii), (iii) or (v) above or clause (vii) or (viii) below
shall be first applied to prepay Letter of Credit Advances then outstanding
until such Advances are paid in full, second applied to prepay Swing Line
Advances then outstanding until such Advances are paid in full, third applied to
prepay ratably Revolving Credit Advances then outstanding until such Advances
are paid in full and fourth deposited ratably in the L/C Collateral Account and
BA Collateral Account to cash collateralize 100% of the Available Amount of the
Letters of Credit and 100% of the Face Amount of Bankers' Acceptances and
Notional Bankers' Acceptances then outstanding, respectively; and, in the case
of prepayments of the Revolving Credit Facility required pursuant to clause (i)
or (ii) above the amount remaining (if any) after the prepayment in full of the
Advances then outstanding and the 100% cash collateralization of the aggregate
Available Amount of Letters of Credit and 100% of the Face Amount of Bankers'
Acceptances and Notional Bankers' Acceptances then outstanding (the sum of such
prepayment amounts in respect of Revolving Credit Advances and Letter of Credit
Advances, cash collateralization amounts and remaining amount being referred to
herein as the "REDUCTION AMOUNT") may be retained by the Borrowers and the
Revolving Credit Facility shall be permanently reduced as set forth in Section
2.06(b)(vi). Upon the drawing of any Letter of Credit for which funds are on
deposit in the L/C Collateral Account, such funds shall be applied to reimburse
the relevant Issuing Bank or Revolving Credit Lenders, as applicable. Upon
payment of any Bankers' Acceptance on its maturity or upon the maturity date of
a BA Equivalent Advance for which funds are on deposit in the BA Collateral
Account, such funds shall be applied to reimburse the relevant Canadian Lender
or Lenders, as applicable. For so long as no Event of Default has
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occurred and is continuing, (i) cash collateral shall be released to the
applicable Borrowers upon the termination or expiry of any Revolving Letter of
Credit, or the maturity of any Bankers' Acceptance or BA Equivalent Advance, as
the case may be, in an amount equal to the cash collateral pledged in respect of
such Revolving Letter of Credit, Bankers' Acceptance or BA Equivalent Advance,
as the case may be or (ii) if, because of a fluctuation in the currency in which
any such Revolving Letter of Credit, Bankers' Acceptance or BA Equivalent
Advance is denominated, amounts on deposit in the relevant cash collateral
account in respect of such Revolving Letter of Credit, Bankers' Acceptance or BA
Equivalent Advance exceed 100% of the Available Amount of such Revolving Letter
of Credit, or of the Face Amount of such Bankers' Acceptance or the applicable
Notional Bankers' Acceptance, as the case may be, the amount of such excess cash
collateral shall be released to the applicable Borrower.
(vii) If the conditions to Section 3.02 hereof are not
satisfied prior to the Deadline Date, (x) the US Borrower shall make a
prepayment on the Deadline Date of the entire outstanding principal amount of
Term B Advances and the US Revolving Credit Advances and shall deposit in the US
L/C Collateral Account an amount equal to the aggregate of the Available Amount
of all US Letters of Credit outstanding and as of the Deadline Date (y) the
Canadian Borrowers shall make prepayments on the Deadline Date of the entire
outstanding principal amount of Canadian Advances and Canadian Letter of Credit
Advances, shall deposit in the BA Collateral Account an amount equal to the
aggregate Face Amount of all outstanding Bankers' Acceptances and Notional
Bankers' Acceptances and shall deposit in the US L/C Collateral Account an
amount equal to the aggregate of the Available Amount of all Canadian Letters of
Credit outstanding as of the Deadline Date.
(viii) On any day on which the Additional Letter of Credit
Commitment is reduced in whole or in part and the circumstances described in
clause (i) of Section 2.06(c) do not apply, the US Borrower shall make a
prepayment in respect of the Term B Facility (for this purpose not including the
Incremental Term Facility) in an amount equal to such reduction and the
Administrative Agent shall withdraw an amount equal to such reduction from the
Additional Collateral Account and apply such funds to such prepayment. Such
prepayment shall be applied to the installments of the Term B Facility (for this
purpose not including the Incremental Term Facility) on a pro rata basis.
(ix) Notwithstanding any other provision of this Section
2.07, no Canadian Borrower or Canadian Guarantor shall be liable for or required
to repay any Obligation of the Loan Parties under the Loan Documents other than
those Obligations incurred under the Canadian Subfacility.
(x) All prepayments under this subsection (b) shall be
made together with accrued interest to the date of such prepayment on the
principal amount prepaid, together with any amounts owing pursuant to Section
8.04(c).
SECTION 2.08. Interest. (a) Scheduled Interest. The US Borrower and the
Canadian Borrowers shall pay interest on the unpaid principal amount of each
Advance owing by each of them, respectively, to each Lender from the date of
such Advance until such principal amount shall be paid in full, at the following
rates per annum:
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(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of (A) the Base Rate in effect from time to time plus (B) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect on the first day of such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full; provided,
that Incremental Term Advances, if any, shall bear interest at the rate
specified in the Incremental Term Loan Assumption Agreement.
(iii) Canadian Advances. A rate per annum equal at all
times to the sum of (A) the Canadian Prime Rate in effect from time to
time plus (B) the Applicable Margin for Canadian Advances in effect
from time to time, payable in arrears quarterly on the last Business
Day of each March, June, September and December during such periods, on
the date such Canadian Advance shall be Converted, on the date of any
repayment thereof pursuant to Section 2.04, on the date of any
prepayment thereof to the extent required under Section 2.06 and on the
Termination Date.
(b) Default Interest. To the fullest extent permitted by
applicable law, (x) upon the occurrence and during the continuance of a Default
under Section 6.01(a) or 6.01(f) the Administrative Agent shall and (y) upon the
occurrence and during the continuance of an Event of Default, the Administrative
Agent may and, upon the request of the Required Lenders shall, require that the
US Borrower and the Canadian Borrowers pay interest on their respective
Obligations ("DEFAULT INTEREST") on (i) the unpaid principal amount of each
Advance owing to each Lender Party, payable in arrears on the dates referred to
in clause (i), (ii) or (iii) of Section 2.08(a), as applicable, and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on such Advance pursuant to clause (i), (ii) or (iii) of
Section 2.08(a), as applicable, and (ii) the amount of any interest, fee or
other amount payable under this Agreement or any other Loan Document to any
Agent or any Lender Party that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid, in
the case of interest, on the Type of Advance on which such interest has accrued
pursuant to clause (i) or (ii) of Section 2.08(a) or on Canadian Advances
pursuant to clause (iii) of Section 2.08(a), as applicable, and, in all other
cases, on Base Rate Advances pursuant to clause (i) of Section 2.08(a);
provided, however, that following the acceleration of the Advances, or the
giving of notice by the Administrative Agent to accelerate the Advances,
pursuant to Section 6.01, Default Interest shall accrue and be payable hereunder
whether or not previously required by the Administrative Agent.
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(c) Notice of Interest Period and Interest Rate. Promptly
after receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.10 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the applicable Borrower and each
Appropriate Lender of the applicable Interest Period and the applicable interest
rate determined by the Administrative Agent for purposes of clause (a)(i) or
(a)(ii) above.
(d) BA Rate Determination. If the Reuters Screen CDOR
Page is not available for the timely determination of the BA Rate, and the BA
Rate for any Bankers' Acceptances or Notional Bankers' Acceptances can not
otherwise be determined in a timely manner in accordance with the definition of
"BA Rate", the Administrative Agent shall forthwith notify the applicable
Canadian Borrower and the Canadian Lenders that such interest rate cannot be
determined for such Bankers' Acceptances and Notional Bankers' Acceptances, and
the obligation of the Canadian Lenders to make, or to renew, Bankers'
Acceptances and Notional Bankers' Acceptances shall be suspended until the
Administrative Agent shall notify the applicable Canadian Borrower and the
Canadian Lenders that the circumstances causing such suspension no longer exist.
SECTION 2.09. Fees. (a) Commitment Fee. The US Borrower shall pay to
the Administrative Agent for the account of the Lenders a commitment fee, from
the date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date, payable in arrears
on the date of the Initial Extension of Credit, thereafter quarterly on the last
day of each March, June, September and December, commencing June 30, 2003, and
on the Termination Date in respect of the applicable Facility, at the rate of
1/2 of 1% per annum on the sum of the average daily Unused Revolving Credit
Commitment of each Appropriate Lender plus, if such Lender is a US Revolving
Credit Lender, its Pro Rata Share of (i) the average daily outstanding Canadian
Revolving Credit Advances during such quarter and (ii) the average daily
outstanding Swing Line Advances during such quarter to the extent the Lenders
have not purchased their Pro Rata Share of such Swing Line Advances; provided,
however, that any commitment fee accrued with respect to any of the Commitments
of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the US
Borrower so long as such Lender shall be a Defaulting Lender except to the
extent that such commitment fee shall otherwise have been due and payable by the
US Borrower prior to such time; and provided, further that no commitment fee
shall accrue on any of the Commitments of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender. It is understood and agreed that for
purposes of this Section 2.09(a) and (b) the Canadian Borrowers shall have no
liability in respect of fees payable by the US Borrower.
(b) Letter of Credit Fees, Etc. (i) The US Borrower shall
pay to the Administrative Agent for the account of each Revolving Credit Lender
a commission, payable in arrears quarterly on the last day of each March, June,
September and December, commencing June 30, 2003, and on the earliest to occur
of the full drawing, expiration, termination or cancellation of any Letter of
Credit and on the Termination Date in respect of the US Revolving Letter of
Credit Facility and in respect of the Canadian Letter of Credit Facility, on
such Lender's Pro Rata Share of the average daily aggregate Available Amount
during such quarter of
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all Letters of Credit which are Revolving Letters of Credit outstanding from
time to time at the rate of at the Applicable Margin for Eurodollar Rate
Advances under the US Revolving Credit Facility. Upon (x) the occurrence and
during the continuance of a Default under Section 6.01(a) or 6.01(f) the
Administrative Agent shall and (y) the occurrence and during the continuance of
an Event of Default, the Administrative Agent may and, upon the request of the
Required Lenders shall, increase the amount of commission payable by the US
Borrower under this clause (b)(i) by 2% per annum.
(ii) The US Borrower shall pay to each Issuing Bank, for
its own account, an issuance fee for each Letter of Credit issued by such
Issuing Bank in an amount equal to 0.25% of the Available Amount of such Letter
of Credit on the date of issuance of such Letter of Credit, payable on such date
and such other commissions, fronting fees, transfer fees and other fees and
charges in connection with the issuance or administration of each Letter of
Credit as such Borrower and such Issuing Bank shall agree.
(c) Agents' Fees. Each Borrower shall pay to each Agent
for its own account such fees as may from time to time be agreed between such
Borrower and such Agent.
(d) Stamping Fees. Each Canadian Borrower shall, on the
date of each Drawing and on the date of each renewal of any outstanding Bankers'
Acceptances or BA Equivalent Advances, pay to the Administrative Agent, in
Canadian Dollars, for the ratable account of the Canadian Lenders accepting
Drafts and purchasing Bankers' Acceptances or making BA Equivalent Advances, the
Stamping Fee with respect to such Bankers' Acceptances or corresponding BA
Equivalent Advances. Each Canadian Borrower irrevocably authorizes each such
Canadian Lender to deduct the Stamping Fee payable with respect to each Bankers'
Acceptance or Notional Bankers' Acceptances of such Canadian Lender from the
Drawing Purchase Price payable by such Canadian Lender in respect of such
Bankers' Acceptance or Notional Bankers' Acceptances in accordance with Section
2.18 and to apply such amount so withheld to the payment of such Stamping Fee
for the account of the applicable Canadian Borrower and, to the extent such
Stamping Fee is so withheld and legally permitted to be so applied, the
applicable Canadian Borrower's obligations under the preceding sentence in
respect of such Stamping Fee shall be satisfied.
SECTION 2.10. Conversion of Advances. (a) Optional. (x) Any Borrower
may on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.08 and
2.11, Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(d), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(d) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into
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Eurodollar Rate Advances, the duration of the initial Interest Period for such
Advances. Each notice of Conversion shall be irrevocable and binding on the
applicable Borrower; and (y) any Canadian Borrower may on any Business Day, upon
notice given to the Administrative Agent not later than 11:00 a.m. (New York
City time) on a Business Day at least two Canadian Business Days prior to the
date of the proposed conversion and subject to the provisions of Sections 2.08
or 2.11, convert all or any portion of the Canadian Revolving Credit Advances
comprising part of the same Borrowing to Drawings in accordance with Section
2.18(a) hereof; provided, however, that any Conversion of Bankers' Acceptances
or BA Equivalent Advances shall be made in accordance with Section 2.19. Each
such notice of Conversion shall specify (A) the date of such Conversion, (B) the
Canadian Revolving Credit Advances to be Converted, (C) if less than all of the
Canadian Revolving Credit Advances comprising part of any Borrowing are to be
Converted, the aggregate amount of Canadian Revolving Credit Advances to be so
Converted and (D) the initial term to maturity of the Bankers' Acceptances or BA
Equivalent Advances (which shall comply with the definition of "Maturity Date"
in Section 1.01); provided, however, that, if the Administrative Agent
determines in good faith (which determination shall be conclusive and binding
upon the applicable Canadian Borrower) that the Bankers' Acceptances or BA
Equivalent Advances cannot be Converted ratably by the Canadian Lenders, due
solely to the requested aggregate Face Amount thereof, the aggregate Face Amount
of Bankers' Acceptances and Notional Bankers' Acceptances to be created and
purchased by any Canadian Lender shall be reduced to such lesser amount as the
Administrative Agent determines will permit such Conversion to be so made and
each Canadian Lender shall make a Credit Advance in the amount of the difference
between such Canadian Lender's ratable portion of the original aggregate amount
of the Canadian Revolving Credit Advances to be Converted and the Face Amount of
the Bankers' Acceptances and Notional Bankers' Acceptances to be created by such
Canadian Lender after giving effect to such Conversion. Each notice of
Conversion under this Section 2.10 shall be irrevocable and binding on the
applicable Canadian Borrower.
To the extent of any inconsistency between the provisions of
this Section 2.10(a) and Section 2.19 as regards the conversion of Bankers'
Acceptances and BA Equivalent Advances, the provisions of Section 2.19 shall
apply.
(b) Mandatory. (i) On the date on which the aggregate
unpaid principal amount of Eurodollar Rate Advances comprising any Borrowing
shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(ii) If any Borrower shall fail to select the duration of
any Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any
Default, (x) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period
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therefor, Convert into a Base Rate Advance and (y) the obligation of the Lenders
to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.11. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining or participating in Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances or of
purchasing, accepting or maintaining Bankers' Acceptances or Notional Bankers'
Acceptances (excluding, for purposes of this Section 2.11, any such increased
costs resulting from (x) Taxes or Other Taxes (as to which Section 2.13 shall
govern) and (y) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender Party is organized or has its
Applicable Lending Office or any political subdivision thereof), then the
Borrowers shall from time to time, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party additional amounts sufficient to compensate
such Lender Party for such increased cost.
(b) If any Lender Party determines that compliance with
any law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend, to accept, purchase, maintain loans, and/or
discount Banker's Acceptances or to issue or participate in Letters of Credit
hereunder and other commitments of such type or the issuance or maintenance of
or participation in the Letters of Credit (or similar contingent obligations),
then, upon demand by such Lender Party or such corporation (with a copy of such
demand to the Administrative Agent), the Borrowers shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend, to accept, purchase,
maintain loans, and/or discount Bankers' Acceptances or Notional Bankers'
Acceptances or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit.
(c) If, with respect to any Eurodollar Rate Advances
under any Facility, Lenders owed at least a majority of the then aggregate
unpaid principal amount thereof notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not adequately
reflect the cost to such Lenders of making, funding or maintaining their
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrowers and the Appropriate Lenders, whereupon
(i) each such Eurodollar Rate Advance under such Facility will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Appropriate Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
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Administrative Agent shall notify the Borrowers that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrowers through the Administrative Agent, (i) each Eurodollar Rate
Advance under each Facility under which such Lender has a Commitment will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrowers that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, however, that, before making
any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
(e) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in the interpretation of any law
or regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Canadian Lender or its BA
Lending Office to perform its obligations hereunder to complete and accept
Drafts, to purchase Bankers' Acceptances or Notional Bankers' Acceptances or to
continue to fund or maintain Bankers' Acceptances or Notional Bankers'
Acceptances hereunder, then, on notice thereof and demand therefor by such
Canadian Lender to the applicable Canadian Borrower through the Administrative
Agent (i) an amount equal to the aggregate Face Amount of all Bankers'
Acceptances and Notional Bankers' Acceptances outstanding at such time shall,
upon such demand (which shall only be made if deemed necessary by the applicable
Canadian Lender to comply with applicable law), be deposited by the applicable
Canadian Borrower into the BA Collateral Account until the Maturity Date of each
such Bankers' Acceptance and Notional Bankers' Acceptance, (ii) upon the
Maturity Date of any Bankers' Acceptance or Notional Bankers' Acceptance in
respect of which any such deposit has been made, the Agent shall be, and hereby
is, authorized (without notice to or any further action by the applicable
Canadian Borrower) to apply, or to direct the Administrative Agent to apply,
such amount (or the applicable portion thereof) to the reimbursement of such
Bankers' Acceptance and (iii) the obligation of the Canadian Lenders to complete
and accept Drafts and purchase Bankers' Acceptances and Notional Bankers'
Acceptance shall be suspended until the Administrative Agent shall notify the
Applicable Canadian Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrowers shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.16), not
later than 11:00 A.M. (New York City time) on the day when due in US Dollars to
the Administrative Agent at the Administrative Agent's
69
Account in same day funds, with payments being received by the Administrative
Agent after such time being deemed to have been received on the next succeeding
Business Day. The Administrative Agent will promptly thereafter cause like funds
to be distributed (i) if such payment by the Borrowers is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to such Lender
Parties for the account of their respective Applicable Lending Offices ratably
in accordance with the amounts of such respective Obligations then payable to
such Lender Parties and (ii) if such payment by the Borrowers is in respect of
any Obligation then payable hereunder to one Lender Party, to such Lender Party
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) The Borrowers hereby authorize each Lender Party and
each of its Affiliates, if and to the extent payment owed to such Lender Party
is not made when due hereunder or, in the case of a Lender, under the Note held
by such Lender, to charge from time to time, to the fullest extent permitted by
law, against any or all of the Borrowers' accounts with such Lender Party or
such Affiliate any amount so due (it being understood that the accounts of the
Canadian Borrowers shall not be charged for amounts owing in respect of the
Obligations of the US Borrower).
(c) All computations of interest based on the Base Rate
and the Canadian Prime Rate shall be made by the Administrative Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of
interest based on the Eurodollar Rate or the Federal Funds Rate and of fees and
Letter of Credit commissions shall be made by the Administrative Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment or
letter of credit fee or commission, as the case may be; provided, however, that,
if such extension would cause payment of interest on or principal of Eurodollar
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received
notice from any Borrower prior to the date on which any payment is due to any
Lender Party hereunder that such Borrower will not make such payment in full,
the Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the
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Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender Party on such due date an amount equal to the
amount then due such Lender Party. If and to the extent the applicable Borrower
shall not have so made such payment in full to the Administrative Agent, each
such Lender Party shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender Party together with interest thereon, for
each day from the date such amount is distributed to such Lender Party until the
date such Lender Party repays such amount to the Administrative Agent, at the
Federal Funds Rate.
(f) Whenever any payment hereunder or in respect of
Bankers' Acceptances or BA Equivalent Advances shall be stated to be due on a
day other than a Canadian Business Day such payment shall be made on the next
succeeding Canadian Business Day and such extension of time shall in such case
be included in the computation of payment of interest or commitment fee, as the
case may be.
(g) Whenever any payment received by the Administrative
Agent under this Agreement or any of the other Loan Documents is insufficient to
pay in full all amounts due and payable to the Agents and the Lender Parties
under or in respect of this Agreement and the other Loan Documents on any date,
such payment shall be distributed by the Administrative Agent and applied by the
Agents and the Lender Parties in the following order of priority:
(i) first, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Agents (solely in their respective capacities as Agents) under
or in respect of this Agreement and the other Loan Documents on such
date, ratably based upon the respective aggregate amounts of all such
fees, indemnification payments, costs and expenses owing to the Agents
on such date;
(ii) second, to the payment of all of the fees,
indemnification payments, costs and expenses that are due and payable
to the Issuing Banks, Swing Line Bank and the Canadian Lenders (solely
in their respective capacities as such) under or in respect of this
Agreement and the other Loan Documents on such date, ratably based upon
the respective aggregate amounts of all such fees, indemnification
payments, costs and expenses owing to the Issuing Banks and the
Canadian Lenders on such date;
(iii) third, to the payment of all of the indemnification
payments, costs and expenses that are due and payable to the Lenders
under Sections 8.04 hereof, Section 25 of the US Security Agreement and
any similar section of any of the other Loan Documents on such date,
ratably based upon the respective aggregate amounts of all such
indemnification payments, costs and expenses owing to the Lenders on
such date;
(iv) fourth, to the payment of all of the amounts that are
due and payable to the Administrative Agent and the Lender Parties
under Sections 2.11 and 2.13 hereof on such date, ratably based upon
the respective aggregate amounts thereof owing to the Administrative
Agent and the Lender Parties on such date;
(v) fifth, to the payment of all of the fees that are due
and payable to the Lenders under Section 2.09(a) on such date, ratably
based upon the respective aggregate Commitments of the Lenders under
the Facilities on such date;
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(vi) sixth, to the payment of all of the accrued and
unpaid interest on the Obligations of the Borrower under or in respect
of the Loan Documents that is due and payable to the Administrative
Agent and the Lender Parties under Section 2.08(b) on such date,
ratably based upon the respective aggregate amounts of all such
interest owing to the Administrative Agent and the Lender Parties on
such date;
(vii) seventh, to the payment of all of the accrued and
unpaid interest on the Advances that is due and payable to the
Administrative Agent and the Lender Parties under Section 2.08(a) on
such date, ratably based upon the respective aggregate amounts of all
such interest owing to the Administrative Agent and the Lender Parties
on such date;
(viii) eighth, to the payment of the principal amount of all
of the outstanding Advances that is due and payable to the
Administrative Agent and the Lender Parties on such date, ratably based
upon the respective aggregate amounts of all such principal owing to
the Administrative Agent and the Lender Parties on such date; and
(ix) ninth, to the payment of all other Obligations of the
Loan Parties owing under or in respect of the Loan Documents that are
due and payable to the Administrative Agent and the other Secured
Parties on such date, ratably based upon the respective aggregate
amounts of all such Obligations owing to the Administrative Agent and
the other Secured Parties on such date.
If the Administrative Agent receives funds for application to the Obligations of
the Loan Parties under or in respect of the Loan Documents under circumstances
for which the Loan Documents do not specify the Advances or the Facility to
which, or the manner in which, such funds are to be applied, the Administrative
Agent may, but shall not be obligated to, elect to distribute such funds to each
of the Lender Parties in accordance with such Lender Party's Pro Rata Share of
the sum of (A) the aggregate principal amount of all Advances outstanding at
such time and (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time, in repayment or prepayment of such of the outstanding
Advances or other Obligations then owing to such Lender Party, and, in the case
of the Term B Facility, for application to such principal repayment installments
thereof, as the Administrative Agent shall direct. Notwithstanding the
foregoing, no payment made by any Canadian Borrower hereunder shall be applied
to satisfy the Obligations of the US Borrower hereunder.
SECTION 2.13. Taxes. (a) Any and all payments by any Loan Party to or
for the account of any Lender Party or any Agent hereunder or under the Notes or
in respect of any Bankers' Acceptances or BA Equivalent Advances or any other
Loan Document shall be made, in accordance with Section 2.12 or the applicable
provisions of such other Loan Document, if any, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender Party and each Agent, taxes that are imposed on its net
income by the United States or any state within the United States and taxes that
are imposed on its net income (and franchise taxes that are increased as a
result of the receipt of any interest payment under this Agreement) by the state
or foreign jurisdiction under the laws of which such Lender Party or such Agent,
as the case may be, is organized or any political subdivision thereof and, in
the case
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of each Lender Party, taxes that are imposed on its net income (and franchise
taxes that are increased as a result of the receipt of any interest payment
under this Agreement) by the state or foreign jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes or in respect of
any Bankers' Acceptances or BA Equivalent Advances or any other Loan Document
being hereinafter referred to as "TAXES"). Notwithstanding the foregoing
sentence, the term Taxes shall include (i) taxes imposed by the United States or
Canada in connection with the domestication of the US Borrower as a Delaware
corporation, and (ii) taxes imposed by Canada or any political subdivision
thereof that arise in any manner, directly or indirectly, in the event that the
domestication of the US Borrower as a Delaware corporation is not effective or
respected for purposes of the Income Tax Act (Canada) or any Canadian provincial
equivalent. If any Loan Party shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note or in respect of
any Bankers' Acceptances or BA Equivalent Advances or any other Loan Document to
any Lender Party or any Agent, (i) the sum payable by the Borrowers shall be
increased as may be necessary so that after such Loan Party and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.13) such Lender Party
or such Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Loan Party shall make
all such deductions and (iii) such Loan Party shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, a Loan Party shall pay any present or
future stamp, documentary, excise, property, intangible, mortgage recording or
similar taxes, charges or levies that arise from any payment made by such Loan
Party hereunder or under any Notes or in respect of any Bankers' Acceptances or
BA Equivalent Advances or any other Loan Documents or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement, the Notes, the Mortgages or the other Loan Documents
(hereinafter referred to as "OTHER TAXES").
(c) The Loan Parties shall indemnify each Lender Party
and each Agent for and hold them harmless against the full amount of Taxes and
Other Taxes, and for the full amount of taxes of any kind imposed or asserted by
any jurisdiction on amounts payable under this Section 2.13, imposed on or paid
by such Lender Party or such Agent (as the case may be) and any liability
(including penalties, additions to tax, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be made within 30 days from
the date such Lender Party or such Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes
or Other Taxes, the appropriate Loan Party shall furnish to the Administrative
Agent, at its address referred to in Section 8.02, the original or a certified
copy of a receipt evidencing such payment, to the extent such a receipt is
issued therefor, or other written proof of payment thereof that is reasonably
satisfactory to the Administrative Agent.
(e) With respect to funds borrowed by the US Borrower,
each Lender Party (including any SPC under Section 8.07(k)), that is organized
under the laws of a jurisdiction
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outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter as reasonably
requested in writing by any Borrower (but only so long thereafter as such Lender
Party remains lawfully able to do so), provide each of the Administrative Agent
and the Borrower with two original Internal Revenue Service Forms W-8BEN or
W-8ECI or other applicable form, as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender Party is
exempt from or entitled to a reduced rate of United States withholding tax on
payments made by the US Borrower pursuant to this Agreement or the Notes or in
respect of any Bankers' Acceptances, BA Equivalent Advances or any other Loan
Document. If the forms provided by a Lender Party at the time such Lender Party
first becomes a party to this Agreement indicate a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender Party provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such forms; provided, however, that if, at the effective date of the
Assignment and Acceptance pursuant to which a Lender Party becomes a party to
this Agreement, the Lender Party assignor was entitled to payments under
subsection (a) of this Section 2.13 in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
Form W-8BEN or W-8ECI or the related certificate described above, that the
applicable Lender Party reasonably considers to be confidential, such Lender
Party shall give notice thereof to the applicable Borrower and shall not be
obligated to include in such form or document such confidential information. For
purposes of this Section 2.13(e), the terms "UNITED STATES" and "UNITED STATES
PERSON" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(f) For any period with respect to which a Lender Party
that is lending to the US Borrower has failed to provide the US Borrower with
the appropriate form, certificate or other document described in subsection (e)
above, which failure shall include for this purpose any material failure, at any
time such Lender Party remains a party to this Agreement, of the form,
certificate or other document to specify the correct rate of United States
withholding tax, to the extent such specification is required by such form,
certificate or other document (other than if such failure is due to a change in
law, or in the interpretation or application thereof, occurring after the date
on which a form, certificate or other document originally was required to be
provided or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender Party shall not be entitled
(during the period such failure exists) to the increase described in subsection
(a)(i) or the indemnification under subsection (c) of this Section 2.13 with
respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder,
the Loan Parties shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such
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Taxes and such Lender Party shall be responsible for such Loan Parties'
reasonable out of pocket expenses.
SECTION 2.14. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes, in respect of any
Bankers' Acceptances or BA Equivalent Advances and the other Loan Documents at
such time in excess of its ratable share (according to the proportion of (i) the
amount of such Obligations due and payable to such Lender Party and under any
Bankers' Acceptances and BA Equivalent Advances at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes, under any Bankers' Acceptances and BA Equivalent
Advances and the other Loan Documents at such time) of payments on account of
the Obligations due and payable to all Lender Parties hereunder and under the
Notes and under any Bankers' Acceptances and BA Equivalent Advances at such time
obtained by all the Lender Parties at such time or (b) on account of Obligations
owing (but not due and payable) to such Lender Party hereunder and under the
Notes, under any Bankers' Acceptances and BA Equivalent Advances and the other
Loan Documents at such time in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations owing to such Lender Party at
such time to (ii) the aggregate amount of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes, under any Bankers'
Acceptances and BA Equivalent Advances and the other Loan Documents at such
time) of payments on account of the Obligations owing (but not due and payable)
to all Lender Parties hereunder and under the Notes and under any Bankers'
Acceptances and BA Equivalent Advances at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered; provided, further that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by any
Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders; provided, further, that to the extent any such excess
payment was received by such Lender Party due to an error of the Administrative
Agent, such Lender shall forward such excess payment back to the Administrative
Agent for proper disbursement. Each Borrower agrees that any Lender Party so
purchasing an interest or participating interest from another Lender Party
pursuant to this Section 2.14 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such interest or participating interest, as the case may be, as fully as if
such Lender Party were the direct creditor of such Borrower in the amount of
such interest or participating interest, as the case may be.
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SECTION 2.15. Use of Proceeds. The proceeds of the Advances, the
Drawings under the Bankers' Acceptances and issuances of Letters of Credit shall
be available (and each Borrower agrees that it shall use such proceeds and
Letters of Credit) solely to finance the consummation of the Plan of
Reorganization and the Transaction, pay transaction fees and expenses, provide
working capital for each Borrower and its Subsidiaries (other than any Excluded
Subsidiary) and for general corporate purposes.
SECTION 2.16. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to any Borrower and (iii) such Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then such Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of such Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, such Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by such Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The applicable Borrower shall notify the
Administrative Agent at any time such Borrower exercises its right of set-off
pursuant to this subsection (a) and shall set forth in such notice (A) the name
of the Defaulting Lender and the Defaulted Advance required to be made by such
Defaulting Lender and (B) the amount set off and otherwise applied in respect of
such Defaulted Advance pursuant to this subsection (a). Any portion of such
payment otherwise required to be made by such Borrower to or for the account of
such Defaulting Lender which is paid by such Borrower, after giving effect to
the amount set off and otherwise applied by such Borrower pursuant to this
subsection (a), shall be applied by the Administrative Agent as specified in
subsection (b) or (c) of this Section 2.16.
(b) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to any Agent or any of the other Lender Parties and (iii) any
Borrower shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by such Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the
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Administrative Agent shall constitute for all purposes of this Agreement and the
other Loan Documents payment, to such extent, of such Defaulted Amount on such
date. Any such amount so applied by the Administrative Agent shall be retained
by the Administrative Agent or distributed by the Administrative Agent to such
other Agents or such other Lender Parties, ratably in accordance with the
respective portions of such Defaulted Amounts payable at such time to the
Administrative Agent, such other Agents and such other Lender Parties and, if
the amount of such payment made by such Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent, such other Agents and such other Lender Parties, in the
following order of priority:
(i) first, to the Agents for any Defaulted Amounts then
owing to them, in their capacities as such, ratably in accordance with
such respective Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Banks, the Swing Line Banks
and the Canadian Lenders for any Defaulted Amounts then owing to them,
in their capacities as such, ratably in accordance with such respective
Defaulted Amounts then owing to the Issuing Banks, the Swing Line Banks
and the Canadian Lenders; and
(iii) third, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by such Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.16.
(c) In the event that, at any one time, (i) any Lender
Party shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) any Borrower, any Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then such Borrower or such Agent or such other Lender Party shall pay
such amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this subsection (c) shall be deposited by
the Administrative Agent in an account with a bank (the "ESCROW BANK") selected
by the Administrative Agent, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be the
Escrow Bank's standard terms applicable to escrow accounts maintained with it.
Any interest credited to such account from time to time shall be held by the
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c). The
Administrative Agent shall, to the fullest extent permitted by applicable law,
apply all funds so held in escrow from time to time to the extent necessary to
make any Advances required to be made by such Defaulting Lender and to pay any
amount payable by such Defaulting Lender hereunder and under the other Loan
Documents to the Administrative Agent or any other Lender Party, as and when
such Advances or amounts are
77
required to be made or paid and, if the amount so held in escrow shall at any
time be insufficient to make and pay all such Advances and amounts required to
be made or paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and
payable by such Defaulting Lender to them hereunder, in their
capacities as such, ratably in accordance with such respective amounts
then due and payable to the Agents;
(ii) second, to the Issuing Banks, the Swing Line Banks
and the Canadian Lenders for any amounts then due and payable to them
hereunder, in their capacities as such, by such Defaulting Lender,
ratably in accordance with such respective amounts then due and payable
to the Issuing Banks, the Swing Line Banks and the Canadian Lenders;
(iii) third, to any other Lender Parties for any amount
then due and payable by such Defaulting Lender to such other Lender
Parties hereunder, ratably in accordance with such respective amounts
then due and payable to such other Lender Parties; and
(iv) fourth, to such Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a Commitment
of such Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender
under this Section 2.15 are in addition to other rights and remedies that such
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that any Agent or any Lender Party may have against such Defaulting
Lender with respect to any Defaulted Amount.
SECTION 2.17. Evidence of Debt. (a) Each Lender Party shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Advance owing
to such Lender Party from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. Each
Borrower agrees that upon notice by any Lender Party to any Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, such
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Revolving Credit Note and/or a Term B Note, as
applicable, in substantially the form of Exhibits A-1 and A-2 hereto,
respectively, payable to the order of such Lender Party in a principal amount
equal to the Revolving Credit Commitment and/or the Term B Commitment,
respectively, of such Lender Party. All references to Notes in the Loan
Documents shall mean Notes, if any, to the extent issued hereunder.
78
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(d) shall include a control account, and a subsidiary
account for each Lender Party, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of
Advances comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assignment and Acceptance delivered
to and accepted by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from such Borrower to each Lender Party
hereunder, and (iv) the amount of any sum received by the Administrative Agent
from such Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative
Agent in the Register pursuant to subsection (b) above, and by each Lender Party
in its account or accounts pursuant to subsection (a) above, shall be prima
facie evidence of the amount of principal and interest due and payable or to
become due and payable from such Borrower to, in the case of the Register, each
Lender Party and, in the case of such account or accounts, such Lender Party,
under this Agreement, absent manifest error; provided, however, that the failure
of the Administrative Agent or such Lender Party to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of such Borrower under this
Agreement.
SECTION 2.18. Drawings of Bankers' Acceptances and Notional Bankers'
Acceptances. (a) Request for Drawing. Each Drawing shall be made on notice,
given not later than 11:00 a.m. (New York City time) on a Canadian Business Day
at least three Canadian Business Days prior to the date of the proposed Drawing,
by any Canadian Borrower to the Administrative Agent, which shall give each
Canadian Lender prompt notice thereof by telecopier. Each notice of a Drawing (a
"NOTICE OF DRAWING") shall be in writing (including by telecopier), in
substantially the form of Exhibit B-2 hereto, specifying therein the requested
(i) date of such Drawing (which shall be a Canadian Business Day), (ii)
aggregate Face Amount of such Drawing and (iii) initial Maturity Date for each
Bankers' Acceptance and BA Equivalent Advances comprising part of such Drawing;
provided, however, that, if the Administrative Agent determines in good faith
(which determination shall be conclusive and binding upon such Canadian
Borrower) that the Drafts to be accepted and purchased as part of any Drawing
cannot, due solely to the requested aggregate Face Amount thereof, be accepted
and/or purchased ratably by the Canadian Lenders in accordance with Section
2.01(e), then the aggregate Face Amount of such Drawing (or the Face Amount of
Bankers' Acceptances and Notional Bankers' Acceptances to be created and
purchased by any Canadian Lender) shall be reduced to such lesser amount as the
Administrative Agent determines will permit such Drafts comprising part of such
Drawing to be so accepted and purchased and, unless such Canadian Borrower shall
have given written notice to the contrary to the Administrative Agent, each
Canadian Lender shall fund the difference between such Lender's ratable portion
of the original aggregate Face Amount of such Drawing and the Face Amount of the
Bankers' Acceptances to be created by such Lender after giving effect to such
reduction in the form of a Canadian Advance, which shall be deemed for all
purposes hereof to be a Canadian Advance made pursuant to Section 2.01(c). The
Administrative Agent agrees that it will, as promptly as practicable, notify
such Canadian Borrower of the unavailability of Bankers' Acceptances and, if
applicable, of the date and the amount of each Canadian Advance to be made or
actually made in accordance with the immediately preceding sentence. Each Draft
in connection with any requested Drawing (A) shall be in a minimum amount of
CN$1,000,000
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or an integral multiple of CN$100,000 in excess thereof, and (B) shall be dated
the date of the proposed Drawing. Each Canadian Lender that is a BA Lender
shall, before 1:00 P.M. (Toronto time) on the date of each Drawing, complete one
or more Drafts in accordance with the related Notice of Drawing, accept such
Drafts and purchase the Bankers' Acceptances created thereby for the Drawing
Purchase Price and shall, before 1:00 P.M. (Toronto time) on such date, make
available for the account of its Applicable Lending Office to the Administrative
Agent at its appropriate Administrative Agent's Account, in same day funds, the
Drawing Purchase Price payable by such Lender for such Drawing less the Stamping
Fee payable to such Lender with respect thereto under Section 2.09(d). Each
Non-BA Lender shall, in lieu of accepting its proportionate amount of Bankers
Acceptances forming part of a Drawing, make available to Borrower a loan (a "BA
EQUIVALENT ADVANCE") in Canadian Dollars in an amount equal to the Drawing
Purchase Price of the Bankers' Acceptances (which Bankers' Acceptances are
referred to herein collectively as the "NOTIONAL BANKERS' ACCEPTANCES") that
Non-BA Lender would have been required to accept if it were a BA Lender. Each
Non-BA Lender shall, before 1:00 p.m. (Toronto time) on the date of each
Drawing, make available for the account of its Applicable Lending Office to the
Administrative Agent at its appropriate Administrative Agent's Account, in same
day funds, the amount of the BA Equivalent Advance, less an amount equal to the
Stamping Fee that would have been applicable to the Notional Bankers' Acceptance
had it being a Bankers' Acceptance. In this Agreement, for the purposes of
calculating the outstanding amount of any BA Equivalent Advance, such
outstanding amount will be equal to the Face Amount of the Notional Bankers'
Acceptance that corresponds to such BA Equivalent Advance. Upon the fulfillment
of the applicable conditions set forth in Article III, the Administrative Agent
will make the funds it has received from the Canadian Lenders available to such
Canadian Borrower by crediting the relevant Borrower's Account.
(b) Limitations on Drawings. Anything in Section 2.18(a)
to the contrary notwithstanding, no Canadian Borrower may select a Drawing if
the obligation of the Canadian Lenders to purchase and accept Bankers'
Acceptances shall then be suspended pursuant to Section 2.18(d) or 2.11.
(c) Binding Effect of Notices of Drawing. Each Notice of
Drawing shall be irrevocable and binding on the applicable Canadian Borrower. In
the case of any proposed Drawing, the applicable Canadian Borrower shall
indemnify each Canadian Lender (absent any gross negligence by the Canadian
Lender) against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in the Notice of Drawing
for such Drawing the applicable conditions set forth in Article III, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Drawing Purchase Price (or in the case of Non-BA Lenders, the BA
Equivalent Advance) to be paid by such Lender as part of such Drawing when, as a
result of such failure, such Drawing is not made on such date (but, in any
event, excluding any loss of profit and the Stamping Fee applicable to such
Drawing or Advance).
(d) Circumstances Making Bankers' Acceptances
Unavailable. (i) If, with respect to any proposed Drawing, the Administrative
Agent determines in good faith that circumstances affecting the money markets at
the time any related Notice of Drawing is delivered or is outstanding will
result in no market for the Bankers' Acceptances to be created in connection
with such Drawing or an insufficient demand for such Bankers' Acceptances to
allow
80
the Lenders creating such Bankers' Acceptances to sell or trade the Bankers'
Acceptances to be created and purchased or discounted by them hereunder in
connection with such Drawing, then, upon notice to the applicable Canadian
Borrower and the Canadian Lenders thereof, (A) the Notice of Drawing with
respect to such proposed Drawing shall be canceled and the Drawing requested
therein shall not be made and (B) the right of such Canadian Borrower to request
a Drawing shall be suspended until the Administrative Agent shall notify such
Borrower that the circumstances causing such suspension no longer exist. In the
case of any such cancellation of a Notice of Drawing, unless such Canadian
Borrower shall give written notice to the contrary to the Administrative Agent,
the cancellation of any such Notice of Drawing shall be deemed to be the giving
by such Canadian Borrower of a Notice of Borrowing for Canadian Borrower
Advances consisting of Canadian Advances in an aggregate principal amount equal
to the aggregate Face Amount of such proposed Drawing and the Canadian Lenders
shall, subject to the terms and conditions hereof applicable to the making of
Canadian Advances, make such Advances available to such Canadian Borrower, if
practicable, on the same Business Day as the date of the requested Drawing, and
otherwise on the next Business Day. The Administrative Agent agrees that it
will, as promptly as practicable, notify such Canadian Borrower of the
unavailability of Bankers' Acceptances and, if applicable, of the date and the
amount of each Canadian Advance to be made or actually made in accordance with
the immediately preceding sentence.
(ii) Upon the occurrence and during the continuance of any
Default, the obligation of the Canadian Lenders to create and purchase Bankers'
Acceptances shall be suspended.
(e) Assumptions of the Administrative Agent. Unless the
Administrative Agent shall have received notice from a Canadian Lender prior to
the date of any Drawing that such Lender will not make available to it such
Lender's ratable share of the proceeds of such Drawing, in accordance with
Section 2.18(a), the Administrative Agent may assume that such Lender has made
such ratable share available to it on the date of such Drawing in accordance
with Section 2.18(a) and the Administrative Agent may, in reliance upon such
assumption, make available to the applicable Canadian Borrower on such date a
corresponding amount. If and to the extent that any such Lender shall not have
so made such ratable share available to the Administrative Agent, such Lender
and the Canadian Borrowers severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount, together with interest
thereon, for each day from the date such amount is made available to the
applicable Canadian Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the applicable Canadian Borrower, a
rate per annum equal to the BA Rate used in calculating the Drawing Purchase
Price with respect to such Drawing, and (ii) in the case of such Lender, the
Canadian Interbank Rate. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
ratable share of the proceeds of such Drawing for all purposes under this
Agreement.
(f) Presigned Draft Forms. To enable the Canadian Lenders
which are BA Lenders to create Bankers' Acceptances in accordance with Section
2.01(e) and this Section 2.18, the Canadian Borrowers shall supply each BA
Lender, upon the Canadian Borrowers' execution of this Agreement and from time
to time thereafter, with such number of Drafts provided to the Canadian
Borrowers by the Administrative Agent as the Administrative
81
Agent may from time to time reasonably request, duly endorsed and executed on
behalf of each Canadian Borrower by any one or more of its duly authorized
officers. Each BA Lender shall exercise such care in the custody and safekeeping
of any Drafts in its possession from time to time as it would exercise in the
custody and safekeeping of similar property owned by it. The signatures of
officers of the Canadian Borrowers on Drafts may be mechanically reproduced in
facsimile and Bankers' Acceptances bearing such facsimile signatures shall be
binding upon each Canadian Borrower as if they had been manually signed by such
officers. Notwithstanding that any of the individuals whose manual or facsimile
signature appears on any Draft as one of such officers may no longer hold office
at the date of such draft or at the date of its acceptance by a Lender hereunder
or at any time thereafter, any Draft or Bankers' Acceptance so signed shall be
valid and binding upon, and enforceable against, each Canadian Borrower. Each
Canadian Borrower hereby appoints each Canadian Lender holding a Draft with
respect to a Drawing made under this Agreement, as its attorney-in-fact to, from
time to time, complete such Draft to adequately reflect such Drawing made by
such Canadian Lender.
(g) Distribution of Bankers' Acceptances. Bankers'
Acceptances purchased by a Canadian Lender in accordance with the terms of
Section 2.01(e) and this Section 2.18 may, in such Lender's sole discretion, be
held by such Lender for its own account until the applicable Maturity Date or
sold, rediscounted or otherwise disposed of by it at any time prior thereto in
any relevant market therefor.
(h) Failure to Fund in Respect of Drawings. The failure
of any Canadian Lender to fund the Drawing Purchase Price to be funded by it as
part of any Drawing or to make a BA Equivalent Advance shall not relieve any
other Canadian Lender of its obligation hereunder to fund its Drawing Purchase
Price on the date of such Drawing or to make a BA Equivalent Advance, but no
Canadian Lender shall be responsible for the failure of any other Canadian
Lender to fund the Drawing Purchase Price or make the BA Equivalent Advance to
be funded or made, as the case may be by such other Canadian Lender on the date
of any Drawing.
SECTION 2.19. Renewal and Conversion of Bankers' Acceptances. (a)
Optional Renewal. Any Canadian Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 11:00 a.m. (New York City time)
on a Business Day at least three Canadian Business Days prior to the date of the
proposed renewal and subject to the provisions of Section 2.11, renew all or any
portion of the Bankers' Acceptances and BA Equivalent Advances comprising part
of the same Drawing; provided, however, that:
(i) any renewal of Bankers' Acceptances or BA Equivalent
Advances shall be made only on the then existing Maturity Date for such
Bankers' Acceptances or BA Equivalent Advances;
(ii) each renewal of Bankers' Acceptances and BA
Equivalent Advances comprising part of the same Drawing shall be made
ratably among the Lenders holding such Bankers' Acceptances and having
made BA Equivalent Advances in accordance with the respective amount of
such Bankers' Acceptances so held and BA Equivalent Advances so made;
and
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(iii) upon the occurrence and during the continuance of any
Event of Default no renewal of any Bankers' Acceptance or BA Equivalent
Advances may be made.
Each such notice of renewal shall, within the restrictions set forth above,
specify (A) the date of such renewal (which shall be the then existing Maturity
Date of such Bankers' Acceptances and BA Equivalent Advances and shall be a
Canadian Business Day), (B) the Bankers' Acceptances to be renewed, (C) if less
than all of the Bankers' Acceptances and BA Equivalent Advances comprising part
of any Drawing are to be renewed, the aggregate Face Amount for such renewal and
(D) the term to maturity of the renewed Bankers' Acceptances and BA Equivalent
Advances (which shall comply with the definition of "Maturity Date" in Section
1.01); provided, however, that, if the Administrative Agent determines in good
faith (which determination shall be conclusive and binding upon such Canadian
Borrower) that the Bankers' Acceptances and BA Equivalent Advances cannot, due
solely to the requested aggregate Face Amount thereof, be renewed ratably by the
Canadian Lenders, the aggregate Face Amount of such renewal (or the Face Amount
of Bankers' Acceptances or Notional Bankers' Acceptances to be created by any
Canadian Lender) shall be reduced to such lesser amount as the Administrative
Agent determines will permit such renewal to be so made and each Canadian Lender
shall fund the difference between such Canadian Lender's ratable portion of the
original aggregate Face Amount of such renewal and the Face Amount of the
Bankers' Acceptances or Notional Bankers' Acceptances to be created by such
Canadian Lender after giving effect to such reduction in the form of a Canadian
Advance, which shall be deemed for all purposes hereof to be a Canadian Advance
made pursuant to Section 2.01(c). Each notice of renewal under this Section 2.19
shall be irrevocable and binding on the applicable Canadian Borrower. Upon any
renewal of Bankers' Acceptances and BA Equivalent Advances comprising part of
any Drawing in accordance with this Section 2.19(a), the Canadian Lenders that
hold the Bankers' Acceptances and that made BA Equivalent Advances to be renewed
shall exchange such maturing Bankers' Acceptances for new Bankers' Acceptances
and shall make a new BA Equivalent Advances, containing the terms set forth in
the applicable notice of renewal, and the Drawing Purchase Price payable for
each such renewed Bankers' Acceptance and the proceeds of the new BA Equivalent
Advance shall be applied, together with other funds, if necessary, available to
the applicable Canadian Borrower, to reimburse the Bankers' Acceptances and BA
Equivalent Advances otherwise maturing on such date. Each Canadian Borrower
hereby irrevocably authorizes and directs each Canadian Lender to apply the
proceeds of each renewed Bankers' Acceptance or BA Equivalent Advance owing to
it to the reimbursement, in accordance with this Section 2.19(a), of the
Bankers' Acceptances or BA Equivalent Advances owing to such Canadian Lender and
maturing on such date.
(b) Optional Conversion. Each Canadian Borrower may on
any Business Day, upon notice given to the Administrative Agent not later than
11:00 a.m. (New York City time) on a Business Day at least two Canadian Business
Days prior to the date of the proposed Conversion and subject to the provisions
of Section 2.19, Convert all or any portion of the Bankers' Acceptances or BA
Equivalent Advances comprising part of the same Drawing to a Canadian Revolving
Credit Borrowing comprised of Canadian Advances; provided, however, that:
83
(i) any Conversion of Bankers' Acceptances and BA
Equivalent Advances shall be made only on the then existing Maturity
Date for such Bankers' Acceptances and BA Equivalent Advances;
(ii) each Conversion of Bankers' Acceptances and BA
Equivalent Advances comprising part of the same Drawing shall be made
ratably among the Lenders that hold such Bankers' Acceptances and that
made such BA Equivalent Advances in accordance with the respective
amounts of such Bankers' Acceptances and BA Equivalent Advances so held
and made; and
(iii) no Conversion may be made if (A) the amount of the
Advance to be made by any Canadian Lender in connection with such
Conversion would exceed such Canadian Lender's unused portion of its
Canadian Revolving Credit Commitment under the Canadian Subfacility in
effect at the time of such Conversion, or (B) after giving effect to
such Conversion, the sum of the aggregate principal amount of
outstanding Canadian Advances plus the aggregate Face Amount of
Bankers' Acceptances and Notional Bankers' Acceptances then outstanding
in respect of outstanding BA Equivalent Advances then outstanding plus
the aggregate Available Amount of all Canadian Letters of Credit
outstanding at such time plus outstanding Canadian Letter of Credit
Advances would exceed the Canadian Subfacility.
Each such notice of Conversion shall, within the restrictions set forth above,
specify (A) the date of such Conversion (which shall be the then existing
Maturity Date of such Bankers' Acceptances and BA Equivalent Advances and shall
be a Canadian Business Day), (B) the Bankers' Acceptances and BA Equivalent
Advances to be Converted and (C) if less than all of the Bankers' Acceptances
and BA Equivalent Advances comprising part of any Drawing are to be Converted,
the aggregate Face Amount of such Conversion. Each notice of Conversion under
this Section 2.19 shall be irrevocable and binding on each Canadian Borrower.
Upon any Conversion of Bankers' Acceptances and BA Equivalent Advances
comprising part of the same Drawing in accordance with this Section 2.19(b), the
obligation of the Canadian Borrower to reimburse the Lenders under Section 2.12
in respect of the Bankers' Acceptances and BA Equivalent Advances otherwise
maturing on such date shall, to the extent of such conversion, be Converted to
an obligation to reimburse the Lenders making the Canadian Advances made in
respect of such maturing Bankers' Acceptances and BA Equivalent Advances on such
date ratably in accordance with the amount of the Advances held by such Lender
at the time of reimbursement. Each Canadian Borrower hereby irrevocably
authorizes and directs each Canadian Lender to apply the net proceeds of each
Canadian Advance made by such Lender pursuant to this Section 2.19(b) to the
reimbursement of the Bankers' Acceptances or Notional Bankers' Acceptances owing
to such Lender and maturing on such date.
(c) Mandatory Conversion. Upon the occurrence and during
the continuance of any Default and any or all renewals of any Bankers'
Acceptances or BA Equivalent Advances are not appropriate, or if the Canadian
Borrower shall fail (i) to deliver a properly completed notice of renewal under
Section 2.19(a) or a properly completed notice of Conversion under Section
2.19(b) indicating its intention to renew or to Convert any maturing Bankers'
Acceptances and BA Equivalent Advances or (ii) to reimburse the Canadian Lenders
for any Bankers' Acceptances and BA Equivalent Advances comprising part of the
same Drawing
84
pursuant to Section 2.04, the Administrative Agent will forthwith so notify the
applicable Canadian Borrower and the Canadian Lenders, whereupon each such
Bankers' Acceptance and BA Equivalent Advances will automatically, on the then
existing Maturity Date of such Bankers' Acceptance or BA Equivalent Advances,
Convert into a Canadian Advance.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance into the Escrow Account on the
Closing Date and of the Canadian Lenders to accept and/or purchase Bankers'
Acceptances or make BA Equivalent Advances is subject to the satisfaction of the
following conditions precedent before or concurrently with the Initial Extension
of Credit:
(a) The Administrative Agent shall have received on or
before the day of the Initial Extension of Credit the following, each
dated such day (unless otherwise specified), in form and substance
satisfactory to the Lender Parties (unless otherwise specified) and
(except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the
Lenders to the extent requested by the Lenders pursuant to the
terms of Section 2.17.
(ii) The Intercreditor Agreements, executed by
each party thereto, in form and substance satisfactory to the
Lenders.
(iii) A security agreement in substantially the
form of Exhibit D hereto (together with each other security
agreement and security agreement supplement delivered by a US
Subsidiary Guarantor pursuant to Section 5.01(j), in each case
as amended, the "US SECURITY AGREEMENT"), duly executed by
each US Loan Party, together with:
(A) certificates representing the
Pledged Equity referred to therein accompanied by
undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in
blank;
(B) acknowledgement copies or stamped
copies of proper financing statements duly filed
before the Initial Extension of Credit under the
Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under the US
Security Agreement, covering the Collateral described
in the US Security Agreement;
(C) duly executed certificates of title
with respect to the Vehicle Collateral with such
releases of Liens and applications therefor, as
85
the Administrative Agent shall require to enable the
prompt processing of each such title by the
appropriate governmental agency in order to properly
reflect the Lien of the Vehicle Collateral Agent
thereon;
(D) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing all effective financing statements
filed in the jurisdictions referred to in clause (B)
above that name any US Loan Party as debtor, together
with copies of such other financing statements;
(E) the US Intellectual Property
Security Agreement duly executed by each US Loan
Party;
(F) evidence that all other recordings
and filings of or with respect to the US Security
Agreement and the US Intellectual Property Security
Agreement that the Administrative Agent may deem
necessary in order to perfect the security interest
created thereunder are in appropriate form and ready
for filing and recording;
(G) evidence that all of the necessary
retitling documentation relating to the certificates
of title for the Vehicle Collateral have been
prepared and are in appropriate form for filing;
(H) the Pledged Account Letters
referred to in the US Security Agreement, duly
executed by each Pledged Account Bank referred to in
the Security Agreement;
(I) the Securities Account Control
Agreement referred to in the US Security Agreement,
duly executed by the Collateral Agent, the applicable
US Loan Party and the applicable securities
intermediary;
(J) the Vehicle Collateral Agency
Agreement, duly executed by the parties thereto; and
(K) evidence that all other action that
the Administrative Agent may deem necessary or
desirable in order to perfect and protect the first
priority liens and security interests created under
the US Security Agreement and the US Intellectual
Property Security Agreement has been taken
(including, without limitation, receipt of duly
executed payoff letters, UCC-3 termination statements
and landlords' and bailees' waiver and consent
agreements).
(iv) A security agreement in substantially the
form of Exhibit L hereto (together with each other security
agreement and security agreement supplement delivered pursuant
to Section 5.01(j), in respect of the Canadian Subfacility in
each case as amended, the "CANADIAN SECURITY AGREEMENT"), duly
executed by each Canadian Loan Party, together with:
86
(A) certificates representing the
Pledged Shares referred to therein accompanied by
undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in
blank,
(B) verification statements in respect
of financing statements duly filed before the Initial
Extension of Credit under the PPSA in all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority liens and security
interests created under the Canadian Security
Agreement, the Canadian Intellectual Property
Security Agreement and the Quebec Security Documents
covering the Collateral described in the Canadian
Security Agreement, the Canadian Intellectual
Property Security Agreement and the Quebec Security
Documents,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing all effective financing statements
filed in the jurisdictions referred to in clause (B)
above that name any Canadian Loan Party as debtor,
together with copies of such other financing
statements,
(D) the Canadian Intellectual Property
Security Agreement duly executed by each Canadian
Loan Party,
(E) the Quebec Security Documents,
(F) evidence that all other recordings
and filings of or with respect to the Canadian
Security Agreement, the Canadian Intellectual
Property Security Agreement and the Quebec Security
Documents that the Administrative Agent may deem
necessary in order to perfect the security interest
created thereunder are in appropriate form and ready
for filing and recording,
(G) evidence that all other action that
the Administrative Agent may deem necessary or
desirable in order to perfect and protect the first
priority liens and security interests created under
the Canadian Security Agreement, the Canadian
Intellectual Property Security Agreement and the
Quebec Security Document has been taken (including,
without limitation, receipt of duly executed payoff
letters, PPSA discharge statements and landlords' and
bailees' waiver and consent agreements).
(v) [Intentionally Omitted]
(vi) [Intentionally Omitted]
(vii) Certified copies of the resolutions of the
Board of Directors of each Loan Party approving the
Transaction and each Transaction Document to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if
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any, with respect to the Transaction and each Transaction
Document to which it is or is to be a party.
(viii) A copy of a certificate of the Secretary of
State of the jurisdiction of incorporation of each US Loan
Party, dated reasonably near the date of the Initial Extension
of Credit, certifying (A) as to a true and correct copy of the
charter of such Loan Party and each amendment thereto on file
in such Secretary's office and (B) that (1) such amendments
are the only amendments to such Loan Party's charter on file
in such Secretary's office, (2) such Loan Party has paid all
franchise taxes to the date of such certificate and (3) such
Loan Party is duly incorporated and in good standing or
presently subsisting under the laws of the State of the
jurisdiction of its incorporation; provided that the good
standing certificate with respect to Geiger Transfer Service,
Inc., a Mississippi corporation, shall be delivered by the
date that is 60 days after the Closing Date.
(ix) A copy of the articles of each Canadian Loan
Party incorporated under the Canada Business Corporations Act,
certified by Industry Canada dated reasonably near the date of
the Initial Extension of Credit.
(x) A copy of the articles of each Canadian Loan
Party incorporated under a Province of Canada, duly certified
by the Secretary or an Assistant Secretary of such Loan Party
to be true and correct and dated the date of the Initial
Extension of Credit.
(xi) A certificate of compliance or certificate
of status, as the case may be, in respect of each Canadian
Loan Party, dated reasonably near the date of the Initial
Extension of Credit.
(xii) A certificate of each Loan Party, signed on
behalf of such Loan Party by its President or a Vice President
and its Secretary or any Assistant Secretary or any authorized
officer, dated the date of the Initial Extension of Credit
(the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying
as to (A) the absence of any amendments to the charter of such
Loan Party since the date of the Secretary of State's
certificate referred to in Section 3.01(a)(vii) or the
Certificate of Industry Canada referred to in Section
3.01(a)(ix), (B) a true and correct copy of the bylaws of such
Loan Party as in effect on the date on which the resolutions
referred to in Section 3.01(a)(vi) were adopted and on the
date of the Initial Extension of Credit, (C) the due
incorporation and good standing or valid existence of such
Loan Party as a corporation organized under the laws of the
jurisdiction of its incorporation, and the absence of any
proceeding for the dissolution or liquidation of such Loan
Party, (D) the truth of the representations and warranties
contained in the Loan Documents as though made on and as of
the date of the Initial Extension of Credit and (E) the
absence of any event occurring and continuing, or resulting
from the Initial Extension of Credit, that constitutes a
Default.
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(xiii) A certificate of the Secretary or an
Assistant Secretary or any authorized officer of each Loan
Party certifying the names and true signatures of the officers
of such Loan Party authorized to sign each Transaction
Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder.
(xiv) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Lender Parties, together
with all agreements, instruments and other documents delivered
in connection therewith as the Administrative Agent shall
request.
(xv) Certified copies of (A) the Confirmation
Order obtained from the Bankruptcy Court on February 27, 2003,
(B) the Plan of Reorganization approved thereby, (C) the
Disclosure Statement approved by a final order of the
Bankruptcy Court on January 23, 2003 and (D) the Canadian
Order.
(xvi) The US Subsidiary Guaranty in substantially
the form of Exhibit E-1 hereto, duly executed by each US
Subsidiary Guarantor.
(xvii) The Canadian Subsidiary Guaranty in
substantially the form of Exhibit E-2 hereto, duly executed by
each Canadian Subsidiary Guarantor in respect of the Canadian
Subfacility.
(xviii) Certificates, in substantially the form of
Exhibit G hereto, attesting to the Solvency of each Loan Party
(other than any Immaterial Subsidiary) before and after giving
effect to the Transaction, from its Chief Financial Officer.
(xix) Such financial, business and other
information regarding each Loan Party and its Subsidiaries as
the Lender Parties shall have requested.
(xx) Evidence of insurance naming the Collateral
Agent as additional insured and loss payee with such
responsible and reputable insurance companies or associations,
and in such amounts and covering such risks, as is
satisfactory to the Lender Parties, including, without
limitation, business interruption insurance.
(xxi) Certified copies of all Material Contracts
and Material Leases of each Loan Party and its Subsidiaries.
(xxii) A Notice of Borrowing relating to the
Initial Extension of Credit.
(xxiii) A favorable opinion of Jones Day, counsel
for the Loan Parties, in substantially the form of Exhibit H-1
hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xxiv) A favorable opinion of Goodmans LLP,
Canadian counsel for the Loan Parties as to such matters as
any Lender Party through the Administrative Agent may
reasonably request.
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(xxv) Favorable opinions of local counsel for the
Loan Parties in provinces in which the Material Properties are
located, with respect to the enforceability and perfection of
all Canadian Mortgages covering Material Properties in such
provinces and any related fixture filings substantially in the
form of Exhibit K hereto, and otherwise in form and substance
satisfactory to the Administrative Agent.
(xxvi) Favorable opinions of local counsel for the
Loan Parties in states and provinces in which the Loan Parties
are located and Vehicle Collateral is registered and otherwise
in form and substance satisfactory to the Administrative
Agent.
(xxvii) A favorable opinion of Shearman & Sterling,
counsel for the Joint Lead Arrangers, in form and substance
satisfactory to the Lenders.
(xxviii) The Escrow Agreement in substantially the
form of Exhibit I hereto, duly executed by each party thereto.
(xxix) Copies of any Greyhound Lease that has been
guaranteed by any Loan Party and a certificate of the US
Borrower dated as of the Closing Date certifying, as to (i)
the Stipulated Loss Value under the Greyhound Leases
guaranteed by the US Borrower as of the Closing Date and (ii)
if the US Borrower has the right to assume any Greyhound
Lease, the amount of the Stipulated Loss Value in respect of
such assumable Lease.
(xxx) The Parent Guaranty in substantially the
form of Exhibit E-3 hereto, duly executed by the US Borrower,
as parent guarantor.
(xxxi) A Certificate of the chief executive officer
of the US Borrower certifying that other than with respect to
the liabilities of the Excluded Subsidiaries that have been
disclosed to the Lenders relating to (i) the contributions to
the pension plans pursuant to the PBGC Agreement and other
liabilities that arise under ERISA, (ii) the guarantees issued
with respect to the Greyhound Leases, (iii) letters of credit
issued with respect to the Greyhound Leases and (iv) a letter
of credit supporting liabilities in respect of the
Supplemental Employee Retirement Plan of Greyhound Lines,
Inc., to the knowledge of the chief executive officer of the
US Borrower no other liability, potential liability,
Obligation or Contingent Obligation exists on the part of the
US Borrower or any Loan Party in respect of the Excluded
Subsidiaries.
(b) The Lender Parties shall be satisfied with (i) the
corporate and legal structure and capitalization of each Loan Party and
each of its Subsidiaries the Equity Interests in which Subsidiaries is
being pledged pursuant to the Loan Documents, including the terms and
conditions of the charter, articles, bylaws and each class of Equity
Interest in each Loan Party and each such Subsidiary and of each
agreement or instrument relating to such structure or capitalization
and (ii) the form, terms and conditions of the Senior Notes and the
Senior Note Indenture.
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(c) Before giving effect to the Transaction, there shall
have occurred no Material Adverse Change other than any change of the
type which customarily occurs as a result of events leading up to and
following the commencement of a proceeding under Chapter 11 of the
Bankruptcy Code and the commencement of the Chapter 11 cases before the
Bankruptcy Court and the CCAA cases before the Canadian Court.
(d) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any Governmental Authority
that (i) could be reasonably likely to have a Material Adverse Effect
other than the matters described on Schedule 4.01(f) hereto (the
"DISCLOSED LITIGATION") or (ii) could be reasonably likely to adversely
affect the legality, validity or enforceability of any Transaction
Document or the consummation of the Transaction other than the Cases,
the Confirmation Order and the Disclosed Litigation described on
Schedule 4.01(f) hereto.
(e) All Governmental Authorizations, Bankruptcy Court,
Canadian Court and third party consents and approvals necessary in
connection with the Transaction shall have been obtained (without the
imposition of any conditions that are not acceptable to the Lender
Parties) and shall remain in effect; all applicable waiting periods in
connection with the Transaction shall have expired without any action
being taken by any competent authority; the appeal period and any
period for leave to appeal with respect to the Canadian Order shall
have expired without an appeal of such order having been commenced or,
in the event of an appeal or application for leave to appeal, a final
determination recognizing the Confirmation Order and providing such
other relief as is reasonably satisfactory to the Lender Parties shall
have been made by the applicable appellate tribunal; and no law or
regulation shall be applicable in the judgment of the Lender Parties,
in each case that restrains, prevents or imposes materially adverse
conditions upon the Transaction or the rights of the Loan Parties or
their Subsidiaries freely to transfer or otherwise dispose of, or to
create any Lien on, any properties now owned or hereafter acquired by
any of them.
(f) The Borrowers shall concurrently deposit into the
Escrow Account an amount equal to the sum of (i) the aggregate amount
of interest that would be payable hereunder on the aggregate principal
amount of Advances made on the Closing Date for the full term of the
arrangements under the Escrow Agreement, (ii) all accrued fees of the
Agents and the Lender Parties and (iii) all accrued expenses of the
Agents (including the accrued fees and expenses of counsel to the
Administrative Agent and local counsel to the Lender Parties).
(g) The Lender Parties shall be reasonably satisfied with
the Confirmation Order, the Canadian Order, the Plan of Reorganization
and the Disclosure Statement and all other agreements, instruments and
documents relating to the Transaction.
(h) The Facilities shall be rated at least BB+ (stable)
by Standards & Poor's Ratings Services and at least Ba3 (stable) by
Moody's Investors Service, Inc.
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(i) The US Borrower shall have received into escrow in
connection with the issuance and sale of the Senior Notes $400.6
million in gross cash proceeds (before any underwriting discounts,
commissions and similar expenses).
(j) Not later than ten business days before the Effective
Date, the Lender Parties shall have received (a) audited consolidated
balance sheets and related statements of operations, shareholders'
equity and cash flows of the US Borrower for the last fiscal year ended
before the Effective Date prepared in accordance with United States
generally accepted accounting principles, (b) to the extent available,
unaudited consolidated balance sheets and related statements of
operations, shareholders' equity, and cash flows of the US Borrower for
the most recent completed fiscal quarter and (c) unaudited Consolidated
balance sheets and statements of operations of the US Borrower and the
Subsidiaries (other than the Excluded Subsidiaries) for the last fiscal
year ended before the Effective Date and the most recent completed
fiscal quarter, which audited and unaudited financial statements (i)
shall be in form and scope reasonably satisfactory to the Lender
Parties and (ii) shall not be materially inconsistent with the
financial statements previously provided to the Lender Parties.
(k) The Lender Parties shall have received a pro forma
consolidated balance sheet of the US Borrower and its Subsidiaries
(other than the Excluded Subsidiaries) as of February 28, 2003, after
giving effect to the Transactions, together with a certificate of the
chief financial officer of the US Borrower to the effect that such
statements accurately present the pro forma financial position of the
US Borrower and its subsidiaries in accordance with generally accepted
accounting principles, and the Lender Parties shall be satisfied that
such balance sheets are not materially inconsistent with the forecasts
previously provided to the Lender Parties.
(l) The Lender Parties shall have received (a) a written
certification of the US Borrower's chief financial officer that (i) the
Consolidated EBITDA of the US Borrower and its Subsidiaries for the
immediately preceding fiscal year was at least $421.0 million, (ii) the
Consolidated EBITDA of the US Borrower and its Subsidiaries for the
period from the beginning of the current fiscal year through the end of
the most recent fiscal quarter for which unaudited financial statements
have been provided was at least $241.9 million, (iii) the Consolidated
EBITDA of the US Borrower and its Subsidiaries (other than the
Excluded Subsidiaries) for the immediately preceding fiscal year was at
least $354.2 million and (iv) the Consolidated EBITDA of the US
Borrower and its Subsidiaries (other than the Excluded Subsidiaries)
for the period from the beginning of the current fiscal year through
the end of the most recent fiscal quarter for which unaudited financial
statements have been provided was at least $239.0 million and (b) a
written certification of the chief financial officer of the US Borrower
that the Consolidated EBITDA of the US Borrower and its Subsidiaries
(other than the Excluded Subsidiaries) for each fiscal month after the
end of the most recent fiscal quarter for which unaudited financial
statements have been provided was not materially inconsistent with the
forecasts for such months set forth in the annual budget of the US
Borrower previously provided to the Administrative Agent.
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(m) There shall be no less than $70 million of
availability under the Revolving Credit Facility as of the Closing Date
after giving effect to all Borrowings and issued and outstanding
Letters of Credit.
(n) All documentation relating to the Bonding Facilities
shall be in form and substance satisfactory to the Agent.
SECTION 3.02. Conditions to Escrow Release. The obligation of each
Lender to make an Advance (other than a Term B Advance), the Canadian Lenders to
accept and/or purchase Bankers' Acceptances or make BA Equivalent Advances or of
any Issuing Bank to issue a Letter of Credit and the obligation of the Escrow
Account Bank to release the Term B Advances and Revolving Credit Advances from
the Escrow Account as required under the Escrow Agreement is subject to the
satisfaction of the following conditions precedent prior to the Deadline Date:
(a) The satisfaction of the conditions set forth in
Section 3.01 hereof.
(b) The occurrence of the "Effective Date" of the Plan of
Reorganization in accordance with its terms.
(c) The Administrative Agent shall have received a
certificate, signed on behalf of the US Borrower by its President or a
Vice President certifying that as of the Escrow Release Date, each of
the Confirmation Order and the Canadian Order shall not have been
reversed, vacated, modified or stayed and the Plan of Reorganization
shall not have been amended, supplemented or otherwise modified without
the prior written consent of the Administrative Agent.
(d) The Administrative Agent shall have received (i) a
copy of the certificate issued by the Secretary of State of the State
of Delaware evidencing the continuation of LIL as New LINC, (ii) a copy
of the certificate of incorporation of New LINC, as amended and
restated pursuant to the Plan of Reorganization, in substantially the
form of Exhibit XIII to the Plan of Reorganization, certified as of the
Effective Date by the Secretary of State of the State of Delaware as
being a true and complete copy thereof, and (iii) a copy of the by-laws
of New LINC, as amended and restated pursuant to the Plan of
Reorganization, in substantially the form of Exhibit XIV to the Plan of
Reorganization, together with a certificate of the Secretary or
Assistant Secretary of New LINC, dated as of the Escrow Release Date,
certifying as to such by-laws being a true and complete copy thereof,
with no amendments thereto.
(e) The Administrative Agent shall have received a
certificate of each Borrower, signed on behalf of each Borrower by its
President or a Vice President, dated the Escrow Release Date (the
statements made in which certificate shall be true on and as of the
Escrow Release Date), certifying as to (i) the truth of the
representations and warranties contained in Article IV hereof, (ii) the
compliance by each Borrower with each of the covenants contained in
Article V hereof during the period from the Effective Date to the
Escrow Release Date and (iii) the absence of any Default.
(f) The Disclosure Statement shall have been approved by
final order of the Bankruptcy Court and the Confirmation Order (i)
shall have been entered by the
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Bankruptcy Court, (ii) shall be in full force and effect, (iii) shall
not have been reversed, stayed, modified or amended (unless the order
providing for such reversal, stay, modification or amendment shall no
longer be in effect) and (iv) shall not have been the subject of a
timely filed appeal unless the effectiveness of the Confirmation Order
shall not have been stayed in accordance with the Federal Rules of
Bankruptcy Procedure or, in the event such order was stayed pending
appeal, such stay shall have been terminated by a subsequent court
order and the Canadian Order (i) shall have been entered by the
Canadian Court, (ii) shall be in full force and effect, (iii) shall not
have been reversed, stayed, modified or amended (unless the order
providing for such reversal, stay, modification or amendment shall no
longer be in effect) and (iv) shall not have been the subject of an
appeal or an application for leave to appeal, and the appeal period and
any period for leave to appeal with respect to the Canadian Order shall
have expired without an appeal of such order having been commenced or,
in the event of an appeal or application for leave to appeal, a final
determination recognizing the Confirmation Order and providing such
other relief as is reasonably satisfactory to the Lender Parties shall
have been made by the applicable appellate tribunal.
(g) There shall be no less than $50 million of
availability under the Revolving Credit Facility as of the Escrow
Release Date after giving effect to the Transactions and all Borrowings
and issued and outstanding Letters of Credit.
(h) The Lender Parties shall be satisfied that all
Existing Debt, other than Surviving Debt, has been prepaid, redeemed or
defeased in full or otherwise satisfied and extinguished and all
commitments relating thereto terminated and that all Surviving Debt
shall be on terms and conditions satisfactory to the Lender Parties.
(i) The PBGC Agreement shall have been executed and
delivered in form and substance satisfactory to the Lender Parties.
(j) A favorable opinion of Jones Day, counsel for the
Loan Parties, in substantially the form of Exhibit H-2 hereto and as to
such other matters as any Lender Party through the Administrative Agent
may reasonably request.
(k) Deeds of trust, trust deeds, mortgages and hypothecs
in substantially the form of Exhibit M hereto (with such changes as may
be required to account for local law matters) and otherwise in form and
substance satisfactory to the Administrative Agent and covering those
Properties located in Canada (together with each other mortgage
delivered pursuant to Section 5.01(j) and 5.01(s), in each case as
amended, the "CANADIAN MORTGAGES"), duly executed by the appropriate
Canadian Loan Party in respect of the Canadian Subfacility, together
with:
(A) evidence that counterparts of the
Canadian Mortgages are in proper form for recording
on or before the Escrow Release Date in all filing or
recording offices that the Administrative Agent may
deem necessary or desirable, together with such
releases of Liens as necessary, in order to create a
valid first and subsisting Liens on the property
described therein in favor of the Collateral Agent
for the benefit of the
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Secured Parties and that arrangements have been made
for the payment of all filing and recording taxes and
fees,
(B) fully paid title insurance policies
(the "CANADIAN MORTGAGE POLICIES") in form and
substance, with endorsements and in amount acceptable
to the Administrative Agent, issued, coinsured and
reinsured by title insurers acceptable to the
Administrative Agent, insuring the Canadian Mortgages
covering the Canadian Properties to be valid first
and subsisting Liens on the property described
therein, free and clear of all defects (including,
but not limited to, mechanics', builder's and
materialmen's Liens) and encumbrances, excepting only
Permitted Liens, and providing for such other
affirmative insurance (including endorsements for
future advances under the Loan Documents and for
mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the
Administrative Agent may deem necessary or desirable,
(C) surveys with respect to those
Canadian Properties designated by the Administration
Agent, for which necessary fees (where applicable)
have been paid, and dated no more than 30 days before
the day of the Initial Extension of Credit, certified
to the Administrative Agent, the Collateral Agent and
the issuer of the Mortgage Policies in a manner
satisfactory to the Administrative Agent by a land
surveyor duly registered and licensed in the Province
in which the relevant property described in such
surveys is located and acceptable to the
Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location
of any easements, parking spaces, rights of way,
building set-back lines and other dimensional
regulations and the absence of encroachments, either
by such improvements or on to such property, and
other defects, other than encroachments and other
defects acceptable to the Administrative Agent,
(D) such consents and agreements of
lessors and other third parties, and such estoppel
letters and other confirmations, as the
Administrative Agent may deem necessary or desirable,
(E) evidence of the insurance required
by the terms of the Canadian Mortgages, and
(F) evidence that all other action that
the Administrative Agent may deem necessary or
desirable in order to create valid first and
subsisting Liens on the property described in the
Canadian Mortgages has been taken.
SECTION 3.03. Conditions Precedent to Each Borrowing and Issuance and
Renewal. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c), a
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Swing Line Advance made by a Revolving Credit Lender pursuant to Section 2.02(b)
and a Canadian Advance made by a Revolving Credit Lender pursuant to Section
2.02(c)) on the occasion of each Borrowing (including the initial Borrowing),
and the obligation of each Issuing Bank to issue a Letter of Credit (including
the initial issuance) or renew a Letter of Credit and the right of the Borrower
to request a Swing Line Borrowing and the obligation of the Canadian Lenders to
accept and/or purchase Bankers' Acceptances or make BA Equivalent Advances,
shall be subject to the further conditions precedent that on the date of such
Borrowing or issuance or renewal (a) the following statements shall be true and
the Administrative Agent shall have received for the account of such Lender or
such Issuing Bank a certificate signed by a duly authorized officer of the
applicable Borrower and the US Borrower, dated the date of such Borrowing or
issuance or renewal, stating that and the acceptance by the applicable Borrower
of the proceeds of such Borrowing or of such Letter of Credit or the renewal of
such Letter of Credit shall constitute a representation and warranty by such
Borrowers that both on the date of such notice and on the date of such Borrowing
or issuance or renewal such statements are true):
(i) the representations and warranties contained in each
Loan Document are correct on and as of such date, before and after
giving effect to such Borrowing or issuance or renewal and to the
application of the proceeds therefrom, as though made on and as of such
date, other than any such representations or warranties that, by their
terms, refer to a specific date other than the date of such Borrowing
or issuance or renewal, in which case as of such specific date; and
(ii) no Default has occurred and is continuing, or would
result from such Borrowing or issuance or renewal or from the
application of the proceeds therefrom;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.04. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The US
Borrower represents and warrants, after giving effect to the transactions
contemplated by the Loan Documents and the Plan of Reorganization, as though
such transactions and the Plan of Reorganization were consummated on and as of
the Effective Date, as follows:
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(a) Each Loan Party and each of its Subsidiaries (other
than the Excluded Subsidiaries) (i) is an organization duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization, amalgamation or continuance, (ii) is
duly qualified and in good standing as a foreign corporation in each
other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except
where the failure to so qualify or be licensed could not be reasonably
likely to have a Material Adverse Effect and (iii) has all requisite
corporate power and authority (including, without limitation, all
Governmental Authorizations) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted except where the failure to so qualify or be licensed could
not be reasonably likely to have a Material Adverse Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of all Subsidiaries (other than the Excluded
Subsidiaries) of each Loan Party, showing as of the Escrow Release Date
(as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of its Equity Interests authorized, and
the number outstanding, on the Escrow Release Date and the percentage
of each such class of its Equity Interests owned (directly or
indirectly) by such Loan Party and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and
similar rights at the Escrow Release Date. All of the outstanding
Equity Interests in each Loan Party's Subsidiaries have been validly
issued, are fully paid and non-assessable and are owned by such Loan
Party or one or more of its Subsidiaries free and clear of all Liens,
except those created under the Collateral Documents.
(c) The execution, delivery and performance by each Loan
Party of each Transaction Document to which it is or is to be a party,
and the consummation of the Transaction, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party's charter or bylaws,
(ii) violate any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
or require any payment to be made under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any
of its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
(d) No Governmental Authorization, and no notice to or
filing with, any Governmental Authority or any other third party is
required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of any Transaction Document to which it
is or is to be a party, or for the consummation of the Transaction,
(ii) the grant by any Loan Party of the Liens granted by it pursuant to
the Collateral
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Documents, (iii) the perfection or maintenance of the Liens created
under the Collateral Documents (including the first priority nature
thereof) or (iv) the exercise by any Agent or any Lender Party of its
rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings listed on
Schedule 4.01(d) hereto, all of which have been duly obtained, taken,
given or made and are in full force and effect.
(e) This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement is, and each
other Transaction Document when delivered hereunder will be, the legal,
valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms.
(f) There is no action, suit, litigation, proceeding or
official investigation (of which any of the Loan Parties have received
notice from the applicable authority) affecting any Loan Party or any
of its Subsidiaries, including any Environmental Action, pending or, to
the actual knowledge of any Loan Party, threatened before any
Governmental Authority that (i) could be reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation) or (ii)
purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transaction, other than
the Cases and the Confirmation Order.
(g) The Consolidated and consolidating balance sheets of
the US Borrower and its Subsidiaries as at August 31, 2002, and the
related Consolidated and consolidating statements of income and
Consolidated statement of cash flows of the US Borrower and its
Subsidiaries for the fiscal year then ended, accompanied (in the case
of such Consolidated financial statements) by an unqualified opinion of
PricewaterhouseCoopers, independent public accountants, and the
Consolidated and consolidating balance sheets of the US Borrower and
its Subsidiaries as at February 28, 2003, and the related Consolidated
and consolidating statements of income and Consolidated statement of
cash flows of the US Borrower and its Subsidiaries for the three months
then ended, duly certified by the Chief Financial Officer of the US
Borrower, copies of which have been furnished to each Lender Party,
fairly present the Consolidated and consolidating financial condition
of the US Borrower and its Subsidiaries as at such dates and the
Consolidated and consolidating results of operations of the US Borrower
and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a
consistent basis, and since August 31, 2002, there has been no Material
Adverse Change other than any change of the type which customarily
occurs as a result of events leading up to and following the
commencement of a proceeding similar to the Cases and the commencement
of the Cases.
(h) The Consolidated and consolidating pro forma balance
sheets of the US Borrower and its Subsidiaries (other than the Excluded
Subsidiaries) as at February 28, 2003, and the related Consolidated and
consolidating pro forma statements of income and cash flows of the US
Borrower and its Subsidiaries (other than the Excluded Subsidiaries)
for the 12 months then ended, certified by the Chief Financial Officer
of the US Borrower, copies of which have been furnished to each Lender
Party, fairly present
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the Consolidated and consolidating pro forma financial condition of the
US Borrower and its Subsidiaries (other than the Excluded Subsidiaries)
as at such date and the Consolidated and consolidating pro forma
results of operations of the US Borrower and its Subsidiaries (other
than the Excluded Subsidiaries) for the period ended on such date, in
each case giving effect to the Transaction, all in accordance with
GAAP.
(i) The Consolidated and consolidating forecasted balance
sheets, statements of income and statements of cash flows of the US
Borrower and its Subsidiaries (other than the Excluded Subsidiaries)
delivered to the Lender Parties pursuant to Section 3.01(a)(xvii) or
5.03 were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in light of the conditions
existing at the time of delivery of such forecasts, and represented, at
the time of delivery, the US Borrower's best estimate of its future
financial performance.
(j) Neither the Information Memorandum nor any other
information, exhibit or report furnished by or on behalf of any Loan
Party to any Agent or any Lender Party in connection with the
negotiation and syndication of the Loan Documents or pursuant to the
terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(k) No Borrower is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is
an "investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party nor any of its Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company",
as such terms are defined in the Public Utility Holding Company Act of
1935, as amended. Neither the making of any Advances, nor the issuance
of any Letters of Credit, nor the application of the proceeds or
repayment thereof by any Borrower, nor the consummation of the other
transactions contemplated by the Transaction Documents, will violate
any provision of any such Act or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(m) All filings and other actions necessary or desirable
to perfect and protect the security interest in the Collateral created
under the Collateral Documents have been duly made or taken and are in
full force and effect, and the Collateral Documents create in favor of
the Collateral Agent for the benefit of the Secured Parties a valid
and, together with such filings and other actions, perfected first
priority security interest in the Collateral, securing the payment of
the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly
taken. The Loan Parties are the legal and beneficial owners of the
Collateral free and
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clear of any Lien, except for the liens and security interests created
or permitted under the Loan Documents.
(n) Each Loan Party (other than any Immaterial
Subsidiary) is, individually and together with its Subsidiaries,
Solvent.
(o) (i) Set forth on Schedule 4.01(o) hereto is a
complete and accurate list of all material Plans and Multiemployer
Plans.
(ii) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan that could reasonably be expected to
have a Material Adverse Effect.
(iii) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lender Parties, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B
there has been no material adverse change in such funding status.
(iv) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability to
any Multiemployer Plan that could reasonably be expected to have a
Material Adverse Effect.
(v) Except as could not reasonably be expected to have a
Material Adverse Effect, neither any Loan Party nor any ERISA Affiliate
has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(vi) With respect to each scheme or arrangement mandated
by a government other than the United States (a "FOREIGN GOVERNMENT
SCHEME OR ARRANGEMENT") and with respect to each employee benefit plan
maintained or contributed to by any Loan Party or any Subsidiary of any
Loan Party that is not subject to United States law (a "FOREIGN PLAN"):
(i) Any employer and employee contributions
required by law or by the terms of any Foreign Government
Scheme or Arrangement or any Foreign Plan have been made, or,
if applicable, accrued, in accordance with normal accounting
practices.
(ii) The fair market value of the assets of each
funded Foreign Plan, the liability of each insurer for any
Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued
contributions, is sufficient to procure or provide for the
accrued benefit obligations, as of the date hereof, with
respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations
most recently used to account for such obligations in
accordance with applicable generally accepted accounting
principles.
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(iii) Each Foreign Plan required to be registered
has been registered and has been maintained in good standing
with applicable regulatory authorities.
(p) (i) Except as otherwise set forth on Part I of
Schedule 4.01(p) hereto, the operations and properties of each Loan
Party and each of its Subsidiaries comply in all material respects with
all applicable Environmental Laws and Environmental Permits, all past
non-compliance with such Environmental Laws and Environmental Permits
has been resolved without ongoing obligations or costs that could be
reasonably likely to have a Material Adverse Effect and no
circumstances exist that could (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of
their properties that could be reasonably likely to have a Material
Adverse Effect or (B) cause any such property to be subject to any
Environmental Deed Restriction.
(ii) Except as otherwise set forth on Part II of Schedule
4.01(p) hereto, none of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or to
the knowledge of the Loan Parties proposed for listing on the NPL or on
the CERCLIS or any analogous foreign, state, provincial or local list;
there are no underground storage tanks in which Hazardous Materials are
being or have been stored in violation of applicable Environmental Laws
on any property currently owned or operated by any Loan Party or any of
its Subsidiaries or, to the best of its knowledge, on any property
formerly owned or operated by any Loan Party or any of its
Subsidiaries; there is no asbestos or asbestos-containing material on
any property currently owned or operated by any Loan Party or any of
its Subsidiaries that requires removal or encapsulation under
Environmental Law; and Hazardous Materials have not been released,
discharged or disposed in violation of Environmental Law on any
currently or, during any Loan Party's or any Subsidiaries' ownership or
operation thereof, formerly owned or operated property in each case
under this subsection (ii) that could reasonably be likely to have a
Material Adverse Effect.
(iii) Except as otherwise set forth on Part III of Schedule
4.01(p) hereto, neither any Loan Party nor any of its Subsidiaries has
been identified as a potentially responsible party at any third-party
waste disposal facility that would reasonably be expected to result in
a material liability to any Loan Party or any of its Subsidiaries; and
all Hazardous Materials generated, used, treated, handled or stored at,
or transported to or from, any currently or, during any Loan Party's or
any Subsidiaries' ownership or operation thereof, formerly owned or
operated property, by any Loan Party or any of its Subsidiaries or to
the knowledge of any Loan Party or any of its Subsidiaries, by any
other Person, have been disposed of in a manner not reasonably expected
to result in material liability to any Loan Party or any of its
Subsidiaries.
(q) (i) Neither any Loan Party nor any of its
Subsidiaries is party to any tax sharing agreement other than the Tax
Agreement.
(ii) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in
all tax returns (federal, state, provincial, local, municipal and
foreign) required to be filed and has paid all taxes shown thereon to
be due, together with applicable interest and penalties.
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(iii) Set forth on Schedule 4.01(q) hereto is a complete
and accurate list, as of the Escrow Release Date, of each taxable year
of each Loan Party and each of its Subsidiaries and Affiliates for
which federal income tax returns have been filed and for which the
expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an
"OPEN YEAR").
(iv) The aggregate unpaid amount, as of the Escrow Release
Date, of adjustments to the federal income tax liability of each Loan
Party and each of its Subsidiaries and Affiliates proposed by the
Internal Revenue Service or the Canada Customs and Revenue Agency, as
the case may be, with respect to Open Years does not exceed $0. No
issues have been raised by the Internal Revenue Service or the Canada
Customs and Revenue Agency, as the case may be, in respect of Open
Years that, in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(v) The aggregate unpaid amount, as of the Escrow Release
Date, of adjustments to the state, provincial, local and foreign tax
liability of each Loan Party and its Subsidiaries and Affiliates
proposed by all state, provincial, local and foreign taxing authorities
(other than amounts arising from adjustments to federal income tax
returns) does not exceed $500,000. No issues have been raised by such
taxing authorities that, in the aggregate, could be reasonably likely
to have a Material Adverse Effect.
(r) Set forth on Schedule 4.01(r) hereto is a complete
and accurate list of all Existing Debt (other than Surviving Debt),
showing as of the Escrow Release Date the obligor and the principal
amount outstanding thereunder.
(s) Set forth on Schedule 4.01(s) hereto is a complete
and accurate list of all Surviving Debt, showing as of the Escrow
Release Date the obligor and the principal amount outstanding
thereunder, the maturity date thereof and the amortization schedule
therefor.
(t) Set forth on Schedule 4.01(t) hereto is a complete
and accurate list of all Liens on the property or assets of any Loan
Party or any of its Subsidiaries (other than the Excluded
Subsidiaries), showing as of the Escrow Release Date the lienholder
thereof, the principal amount of the obligations secured thereby and
the property or assets of such Loan Party or such Subsidiary subject
thereto.
(u) (i) Set forth on Schedule 4.01(u)(i) hereto is a
complete and accurate list of all real property owned by any Loan Party
or any of its Subsidiaries (other than the Excluded Subsidiaries),
showing as of the Escrow Release Date the street address, county or
other relevant jurisdiction, state, province, record owner and book and
estimated fair value thereof. Each Loan Party or such Subsidiary has
good, marketable and insurable fee simple title to such real property,
free and clear of all Liens, other than Liens created or permitted by
the Loan Documents and (ii) set forth on Schedule 4.01(u)(ii) is a
complete and accurate list of all real property owned by any Loan Party
or any of its Subsidiaries (other than Excluded Subsidiaries) located
in (A) the United States with a fair market value (inclusive of land,
buildings and improvements and fixtures) of more
102
than $1,000,000 and (B) Canada with a fair market value (inclusive of
land, buildings and improvements and fixtures) of more than $1,000,000.
(v) (i) Set forth on Schedule 4.01(v)(i) hereto is a
complete and accurate list of all leases of real property under which
any Loan Party or any of its Subsidiaries (other than the Excluded
Subsidiaries) is the lessee, and to the extent such Schedule includes
the names of the lessor and lessee, the location of such real property,
the expiration date of such leases and the annual rental cost thereof,
such information is true and correct, (ii) set forth on Schedule
4.01(v)(ii) hereto is a complete and accurate list of those leases that
are located in (A) the United States which (I) expire or terminate in
accordance with their terms after June 1, 2008, (II) have a monthly
rent of at least $7,000 or a yearly rent of at least $84,000 and (III)
are for properties located in states in which any Loan Party or its
Subsidiaries has Owned Real Property and (B) in Canada which are
material to the operations carried on by the Canadian Borrowers and
their Affiliates in Canada, having regard for the location of the
leased premises and the number of months remaining under the terms of
the leases and (iii) set forth on Schedule 4.01(v)(iii) hereto is a
complete and accurate list of all leases of real property under which
any Loan Party is the lessor, showing as of the Escrow Release Date the
street address, county or other relevant jurisdiction, state, province,
lessor, lessee, expiration date and annual rental cost thereof.
(w) Set forth on Schedule 4.01(w) hereto is a complete
and accurate list of all Investments held by any Loan Party or any of
its Subsidiaries (other than the Excluded Subsidiaries) on the Escrow
Release Date, showing as of the Escrow Release Date the amount, obligor
or issuer and maturity, if any, thereof.
(x) Set forth on Schedule 4.01(x) hereto is a complete
and accurate list of all material patents, trademarks, trade names,
service marks and copyrights, and all applications therefor and
licenses thereof, of each Loan Party or any of its Subsidiaries (other
than the Excluded Subsidiaries), showing as of the Escrow Release Date
the jurisdiction in which registered, the registration number, the date
of registration and the expiration date.
(y) Set forth on Schedule 4.01(y) hereto is a complete
and accurate list of all Material Contracts of each Loan Party and its
Subsidiaries (other than the Excluded Subsidiaries), showing as of the
Escrow Release Date the parties, subject matter and term thereof.
(z) Each of the Confirmation Order and the Canadian Order
has not been reversed, vacated, modified or stayed, no application or
motion has been filed or served on any Loan Party seeking leave to
appeal or a stay pending appeal and the Plan of Reorganization has not
been amended, supplemented or otherwise modified without the prior
written consent of the Administrative Agent.
(aa) As of the Effective Date, the aggregate fair value of
the assets held by the Immaterial Subsidiaries is not greater than $1,000,000.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit or any Bankers' Acceptance or BA Equivalent Advance shall
be outstanding or any Lender Party shall have any Commitment hereunder, the US
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of
its Subsidiaries (other than the Excluded Subsidiaries) to comply, in
all material respects, with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
ERISA and the Racketeer Influenced and Corrupt Organizations Chapter of
the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause
each of its Subsidiaries (other than the Excluded Subsidiaries) to pay
and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid, might by law
become a Lien upon its property; provided, however, that neither the US
Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Compliance with Environmental Laws. Comply, and
require each of its Subsidiaries (other than its Excluded Subsidiaries)
and all lessees and other Persons operating or occupying its properties
to comply, in all material respects, with all applicable Environmental
Laws and material Environmental Permits; obtain and renew, and cause
each of its Subsidiaries to obtain and renew, all material
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, to the extent required
by Environmental Laws; provided, however, that neither the US Borrower
nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper
proceedings, appropriate reserves are being maintained with respect to
such circumstances and any such Hazardous Materials do not and could
not reasonably be expected to pose an imminent and substantial
endangerment to human health or the environment.
(d) Maintenance of Insurance. Maintain, and cause each of
its Subsidiaries (other than the Excluded Subsidiaries) to maintain,
insurance including, without limitation, business interruption
insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which the US Borrower or such
Subsidiary operates.
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(e) Preservation of Corporate Existence, Etc. Preserve
and maintain, and cause each of its Subsidiaries (other than the
Excluded Subsidiaries) to preserve and maintain, its existence, legal
structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises; provided, however, that
neither the US Borrower nor any of its Subsidiaries shall be required
to preserve its existence or any right, permit, license, approval,
privilege or franchise if the Board of Directors of the US Borrower or
such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the US Borrower or
such Subsidiary, as the case may be, and that the loss thereof could
not be reasonably likely, either individually or together with all
other similar losses, to have a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time and from
time to time, permit any of the Agents or any of the Lender Parties, or
any agents or representatives thereof, to examine and make copies of
and abstracts from the records and books of account of, and visit the
properties of, the US Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the US Borrower and any
of its Subsidiaries with any of their officers or directors and with
their independent certified public accountants. References herein to
"Subsidiaries" shall not be deemed to include the Excluded Subsidiaries
except to the extent that the reason for any such request for
visitation rights is related to potential liability of any Loan Party
under the Pension Plans.
(g) Keeping of Books. Keep, and cause each of its
Subsidiaries (other than the Excluded Subsidiaries) to keep, proper
books of record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of the
US Borrower and each such Subsidiary in accordance with United States
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and
preserve, and cause each of its Subsidiaries (other than the Excluded
Subsidiaries) to maintain and preserve, all of its properties that are
used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted and will from time to time
make or cause to be made all appropriate repairs, renewals and
replacements thereof except where failure to do so would not materially
adversely affect the use of the related property.
(i) Transactions with Affiliates. Conduct, and cause each
of its Subsidiaries to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates on terms that are
fair and reasonable and no less favorable to the US Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate, other than transactions
among Loan Parties.
(j) Covenant to Guarantee Obligations and Give Security.
Upon (x) the request of the Collateral Agent following the occurrence
and during the continuance of an Event of Default, (y) the formation or
acquisition of any new direct or indirect Subsidiaries (other than any
Excluded Subsidiary) by any Loan Party or (z) the acquisition of any
property by any Loan Party, and such property, in the judgment of the
Collateral Agent, shall not already be subject to a perfected first
priority security interest
105
in favor of the Collateral Agent for the benefit of the Secured
Parties, then in each case at the US Borrower's expense:
(i) in connection with the formation or
acquisition of a Subsidiary that is not an insurance company,
within 10 days after such formation or acquisition, cause each
such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly
execute and deliver to the Collateral Agent a guaranty or
guaranty supplement, in form and substance satisfactory to the
Collateral Agent, guaranteeing the other Loan Parties'
obligations under the Loan Documents or, if a Canadian
Subsidiary, guaranteeing the Obligations of the Canadian Loan
Parties under the Loan Documents, provided, however, that
solely with respect to a guaranty or guaranty supplement to
secure the Obligations of the U.S. Loan Parties under the Loan
Documents, this clause (i) will not apply to any Subsidiary
that is (A) a CFC or (B) a Subsidiary that is held directly or
indirectly by a CFC.
(ii) within 10 days after (A) such request
furnish to the Collateral Agent a description of the real and
personal properties of the Loan Parties and their respective
Subsidiaries in detail satisfactory to the Collateral Agent
and (B) such formation or acquisition, furnish to the
Collateral Agent a description of the real and personal
properties of such Subsidiary or the real and personal
properties so acquired, in each case in detail satisfactory to
the Collateral Agent,
(iii) within 15 days after (A) such request or
acquisition of property by any Loan Party, duly execute and
deliver, and cause each Loan Party to duly execute and
deliver, to the Collateral Agent such additional mortgages,
pledges, assignments, security agreement supplements,
intellectual property security agreement supplements and other
security agreements as specified by, and in form and substance
satisfactory to the Collateral Agent, securing payment of all
the Obligations of such Loan Party under the Loan Documents
and constituting Liens on all such properties and (B) such
formation or acquisition of any new Subsidiary, duly execute
and deliver and cause each Subsidiary to duly execute and
deliver to the Collateral Agent mortgages, pledges,
assignments, security agreement supplements, intellectual
property security agreement supplements and other security
agreements as specified by, and in form and substance
satisfactory to the Collateral Agent, securing payment of all
of the obligations of such Subsidiary under the Loan
Documents; provided, however, that only for purposes of
securing the Obligations of the US Loan Parties under the Loan
Documents if such new property is Equity Interests in a CFC,
only 66% of such Equity Interests shall be pledged in favor of
the Secured Parties,
(iv) within 30 days after such request, formation
or acquisition, take, and cause each Loan Party and each newly
acquired or newly formed Subsidiary to take, whatever action
(including, without limitation, the recording of mortgages,
the filing of Uniform Commercial Code and/or PPSA financing
statements, the giving of notices and the endorsement of
notices on title documents) may be necessary or advisable in
the opinion of the Collateral Agent
106
to vest in the Collateral Agent (or in any representative of
the Collateral Agent designated by it) valid and subsisting
Liens on the properties purported to be subject to the
mortgages, pledges, assignments, security agreement
supplements, intellectual property security agreement
supplements and security agreements delivered pursuant to this
Section 5.01(j), enforceable against all third parties in
accordance with their terms; provided, however, that Liens
granted by a Subsidiary that is a CFC or a Subsidiary that is
held directly or indirectly by a CFC shall not secure the
Obligations of the U.S. Loan Parties under the Loan Documents,
(v) within 60 days after such request, formation
or acquisition, deliver to the Collateral Agent, upon the
request of the Collateral Agent in its sole discretion, a
signed copy of a favorable opinion, addressed to the
Collateral Agent and the other Secured Parties, of counsel for
the Loan Parties acceptable to the Collateral Agent as to (1)
the matters contained in clauses (i), (iii) and (iv) above,
(2) such guaranties, guaranty supplements, mortgages, pledges,
assignments, security agreement supplements, intellectual
property security agreement supplements and security
agreements being legal, valid and binding obligations of each
Loan Party party thereto enforceable in accordance with their
terms, as to the matters contained in clause (iv) above, (3)
such recordings, filings, notices, endorsements and other
actions being sufficient to create valid perfected Liens on
such properties, and (4) such other matters as the Collateral
Agent may reasonably request,
(vi) as promptly as practicable after such
request, formation or acquisition, deliver, upon the request
of the Collateral Agent in its sole discretion, to the
Collateral Agent with respect to each parcel of real property
owned or held by each Loan Party and each newly acquired or
newly formed Subsidiary that is not an insurance company,
title reports, surveys and engineering, soils and other
reports, and environmental assessment reports, each in scope,
form and substance satisfactory to the Collateral Agent,
provided, however, that to the extent that any Loan Party or
any of its Subsidiaries shall have otherwise received any of
the foregoing items with respect to such real property, such
items shall, promptly after the receipt thereof, be delivered
to the Collateral Agent; provided, however, that Liens granted
by any Subsidiary that is a CFC or a Subsidiary that is held
directly or indirectly by a CFC shall not secure the
Obligations of the US Loan Parties under the Loan Documents,
and
(vii) at any time and from time to time, cause
each Loan Party and each newly acquired or newly formed
Subsidiary that is not an insurance company to promptly
execute and deliver any and all further instruments and
documents and take, and cause each Loan Party and each newly
acquired or newly formed Subsidiary that is not an insurance
company to take, all such other action as the Collateral Agent
may deem necessary or desirable in obtaining the full benefits
of, or in perfecting and preserving the Liens of, such
guaranties, mortgages, pledges, assignments, security
agreement supplements, intellectual property security
agreement supplements and security agreements; provided,
however, that
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Liens granted by any Subsidiary that is a CFC or a Subsidiary
that is held directly or indirectly by a CFC shall not secure
the Obligations of the US Loan Parties under the Loan
Documents.
(k) Further Assurances. (i) Promptly upon request by any
Agent, or any Lender Party through the Administrative Agent, correct,
and cause each of its Subsidiaries (other than the Excluded
Subsidiaries) promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender
Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any
and all such further acts, deeds, conveyances, pledge agreements,
mortgages, deeds of trust, trust deeds, assignments, financing
statements and continuations thereof, termination statements, notices
of assignment, transfers, certificates, assurances and other
instruments as any Agent, or any Lender Party through the
Administrative Agent, may reasonably require from time to time in order
to (A) carry out more effectively the purposes of the Loan Documents,
(B) to the fullest extent permitted by applicable law, subject any Loan
Party's or any of its Subsidiaries' properties, assets, rights or
interests to the Liens now or hereafter intended to be covered by any
of the Collateral Documents, (C) perfect and maintain the validity,
effectiveness and priority of any of the Collateral Documents and any
of the Liens intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively
unto the Secured Parties the rights granted or now or hereafter
intended to be granted to the Secured Parties under any Loan Document
or under any other instrument executed in connection with any Loan
Document to which any Loan Party or any of its Subsidiaries (other than
the Excluded Subsidiaries) is or is to be a party, and cause each of
its Subsidiaries (other than the Excluded Subsidiaries) to do so.
(l) Performance of Related Documents. Perform and
observe, and cause each of its Subsidiaries to perform and observe, all
of the terms and provisions of each Related Document to be performed or
observed by it (including without limitation, the performance by any
Excluded Subsidiary of its obligations under the PBGC Agreement),
maintain each such Related Document in full force and effect, and
enforce such Related Document in accordance with its terms, except in
each case for any action that, if not taken, could not reasonably be
likely to have a Material Adverse Effect.
(m) Preparation of Environmental Reports. At the request
of the Administrative Agent or the Collateral Agent if the Lender
Parties have a reasonable basis to believe that there has been a
material release of Hazardous Materials at any property currently owned
or operated by any Loan Party or any of its Subsidiaries, that any Loan
Party or any of its Subsidiaries is in material non-compliance with any
Environmental Law or Environmental Permit with respect to any property
currently owned or operated by any Loan Party or any of its
Subsidiaries, or that any property currently owned or operated by any
Loan Party or any of its Subsidiaries is subject to, or is threatened
to be subject to, an Environmental Deed Restriction, provide to the
Lender Parties within 60 days after such request, at the expense of the
US Borrower, an
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environmental site assessment report for any of its or its
Subsidiaries' properties described in such request, prepared by an
environmental consulting firm reasonably acceptable to the
Administrative Agent or the Collateral Agent, indicating the presence
or absence of Hazardous Materials in violation of Environmental Law and
the estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials in violation of Environmental
Law on such properties; without limiting the generality of the
foregoing, if the US Borrower fails to provide the report in the time
referred to above, the Administrative Agent or the Collateral Agent may
retain an environmental consulting firm to prepare such report, and the
US Borrower hereby grants and agrees to cause any Subsidiary that owns
any property described in such request to grant at the time of such
request to the Agents, the Lender Parties, such firm and any agents or
representatives thereof an irrevocable non-exclusive license, subject
to the rights of tenants, to enter onto their respective properties to
undertake such an assessment. References herein to "Subsidiaries" shall
not be deemed to include the Excluded Subsidiaries.
(n) Compliance with Terms of Leaseholds. Make all
payments and otherwise perform all obligations in respect of all leases
of real property to which the US Borrower or any of its Subsidiaries
(other than any Excluded Subsidiary) is a party, keep such leases in
full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or
cancelled, notify the Administrative Agent of any default by any party
with respect to such leases and cooperate with the Administrative Agent
in all respects to cure any such default, and cause each of its
Subsidiaries (other than the Excluded Subsidiaries) to do so, except,
in any case, where the failure to do so, either individually or in the
aggregate, could not have a Material Adverse Effect.
(o) Cash Concentration Accounts. Except for accounts
pledged in connection with the Bonding Facilities:
(i) Maintain, and cause each of its US
Subsidiaries (other than the Excluded Subsidiaries) to
maintain, main cash concentration accounts with Citibank or
another institution satisfactory to the Administrative Agent
and lockbox accounts into which all proceeds of Collateral are
paid with one or more banks acceptable to the Collateral Agent
that have accepted the assignment of such accounts to the
Collateral Agent for the benefit of the Secured Parties
pursuant to the Security Agreement.
(ii) Maintain, and cause the Canadian Borrower
and the Canadian Subsidiaries to maintain, "mirror" cash
concentration accounts with Canadian Imperial Bank of Commerce
or one or more banks acceptable to the Collateral Agent that
have accepted the assignment of such accounts to the
Collateral Agent for the benefit of the Secured Parties
pursuant to the Security Agreement.
(p) Interest Rate Hedging. Enter into prior to the date
that is 90 days after the Closing Date, and maintain at all times
thereafter, interest rate Hedge Agreements with Persons acceptable to
the Administrative Agent, covering a notional amount of not less
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than a percentage of the Term B Facility such that 50% of the sum of
the Term B Facility and the outstanding Senior Notes bears interest at
a fixed rate for a period of no less than 3 years in a manner
consistent with prudent business practices.
(q) Performance of Material Contracts. Perform and
observe all the terms and provisions of each Material Contract to be
performed or observed by it, maintain each such Material Contract in
full force and effect, enforce each such Material Contract in
accordance with its terms, take all such action to such end as may be
from time to time requested by the Administrative Agent and, upon
request of the Administrative Agent, make to each other party to each
such Material Contract such demands and requests for information and
reports or for action as any Loan Party or any of its Subsidiaries
(other than any Excluded Subsidiary) is entitled to make under such
Material Contract, and cause each of its Subsidiaries to do so, except,
in any case, where the failure to do so, either individually or in the
aggregate, could not have a Material Adverse Effect.
(r) US Mortgages. By the date that is 60 days after the
Closing Date, as such time period may be extended in the Administrative
Agent's sole discretion (provided, that if substantially all of the
items described in this Section 5.01(r) are not delivered by the date
that is 120 days after the Closing Date, any additional extensions
shall be subject to the approval of the Required Lenders), the
Borrowers shall deliver deeds of trust, trust deeds and mortgages in
substantially the form of Exhibit F hereto (with such changes as may be
required to account for local law matters) and otherwise in form and
substance satisfactory to the Administrative Agent and covering those
Properties and Material Leases located in the United States (together
with each other mortgage delivered pursuant to Section 5.01(j), in each
case as amended, the "US MORTGAGES"), duly executed by the appropriate
Loan Party, together with:
(A) evidence that counterparts of the US
Mortgages have been duly recorded on or before the date that
is 60 days after the Closing Date (or such later date approved
by the Administrative Agent in its sole discretion) in all
filing or recording offices that the Administrative Agent may
deem necessary or desirable in order to create a valid first
and subsisting Lien on the property described therein in favor
of the Collateral Agent for the benefit of the Secured Parties
and that all filing and recording taxes and fees have been
paid,
(B) fully paid American Land Title Association
Lender's Extended Coverage title insurance policies (the "US
MORTGAGE POLICIES") in form and substance, with endorsements
and in amount acceptable to the Administrative Agent, issued
by title insurers acceptable to the Administrative Agent,
insuring the US Mortgages covering the Material Properties to
be valid first and subsisting Liens on the property described
therein, free and clear of all defects (including, but not
limited to, mechanics' and materialmen's Liens) and
encumbrances, excepting only Permitted Liens, and providing
for such other affirmative insurance (including endorsements
for future advances under the Loan Documents and for
mechanics' and materialmen's Liens),
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(C) American Land Title Association/American
Congress on Surveying and Mapping form surveys covering the
Material Properties, for which necessary fees (where
applicable) have been paid, and dated no more than the date
that is 60 days after the Closing Date (or such later date
approved by the Administrative Agent in its sole discretion),
certified to the Administrative Agent, the Collateral Agent
and the issuer of the Mortgage Policies in a manner reasonably
acceptable to the Administrative Agent by a land surveyor duly
registered and licensed in the States in which the property
described in such surveys is located and acceptable to the
Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location of any
easements, parking spaces, rights of way, building set-back
lines and other dimensional regulations and the absence of
encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and
other defects acceptable to the Administrative Agent,
(D) such consents and agreements of other third
parties, and such estoppel letters and other confirmations, as
the Administrative Agent may deem necessary or desirable in
its reasonable discretion; provided, however, that the
Administrative Agent acknowledges and agrees that certain of
the Material Leases may not provide that the other parties to
such Material Leases are required to provide estoppel or
consent agreements in a form and substance reasonably
satisfactory to the Administrative Agent and, in such case,
such Loan Parties' sole obligation is to use reasonable
efforts to obtain such agreements and items,
(E) with respect to the Material Leases,
estoppel and consent agreements, in form and substance
satisfactory to the Administrative Agent, executed by each of
the lessors of the leased real properties listed on Schedule
4.01(v)(ii) hereto, along with (x) a memorandum of lease in
recordable form with respect to such leasehold interest,
executed and acknowledged by the owner of the affected real
property, as lessor, or (y) evidence that the applicable lease
with respect to such leasehold interest or a memorandum
thereof has been recorded in all places necessary or
desirable, in the Administrative Agent's reasonable judgment,
to give constructive notice to third-party purchasers of such
leasehold interest, or (z) if such leasehold interest was
acquired or subleased from the holder of a recorded leasehold
interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation
and otherwise in form satisfactory to the Administrative Agent
provided, however, that the Administrative Agent acknowledges
and agrees that certain of the Material Leases may not provide
that the other parties to such Material Leases are required to
provide estoppel or consent agreements in a form and substance
reasonably satisfactory to the Administrative Agent and may
also not permit Loan Parties to provide the items set forth in
clauses (x), (y) and (z) of this provision, and, in such case,
such Loan Parties' sole obligation is to use reasonable
efforts to obtain such agreements and items,
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(F) evidence of the insurance required by the
terms of the US Mortgages, and
(G) evidence that all other action that the
Administrative Agent may deem necessary or desirable, in its
reasonable discretion, in order to create valid first and
subsisting Liens on the property described in the Mortgages
has been taken.
(H) Favorable opinions of local counsel for the
Loan Parties (i) in states in which the Material Properties
and Material Leases are located, with respect to the
enforceability and perfection of all US Mortgages covering
Material Properties and Material Leases and any related
fixture filings, substantially in the form of Exhibit K hereto
and otherwise in form and substance satisfactory to the
Administrative Agent and (ii) in states in which the Loan
Parties party to the US Mortgages are organized or formed,
with respect to the valid existence, corporate power and
authority of such Loan Parties in the granting of the US
Mortgages, in form and substance satisfactory to the
Administrative Agent.
(s) Canadian Leasehold Mortgages. By the date that is 60
days after the Closing Date, as such time period may be extended in the
Administrative Agent's sole discretion (provided, that if substantially
all of the items described in this Section 5.01(s) are not delivered by
the date that is 120 days after the Closing Date, any additional
extensions shall be subject to the approval of the Required Lenders),
the Borrowers shall deliver deeds of trust, trust deeds, mortgages and
hypothecs in substantially the form of Exhibit M hereto (with such
changes as may be required to account for local law matters) and
otherwise in form and substance satisfactory to the Administrative
Agent and covering those Material Leases located in Canada, duly
executed by the appropriate Canadian Loan Party in respect of the
Canadian subfacility, together with:
(A) evidence that counterparts of the Canadian
Mortgages covering Material Leases have been duly recorded on
or before the date that is 60 days after the Closing Date (or
such later date approved by the Administrative Agent in its
sole discretion) in all filing or recording offices that the
Administrative Agent may deem necessary or desirable in order
to create a valid first and subsisting Lien on the property
described therein in favor of the Collateral Agent for the
benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
(B) fully paid Canadian Mortgage Policies in
form and substance, with endorsements and in amount acceptable
to the Administrative Agent, issued, coinsured and reinsured
by title insurers acceptable to the Administrative Agent,
insuring the Canadian Mortgages covering the Canadian Material
Leases to be valid first and subsisting Liens on the property
described therein, free and clear of all defects (including,
but not limited to, mechanics', builder's and materialmen's
Liens) and encumbrances, excepting only Permitted Liens, and
providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and
for mechanics' and materialmen's Liens) and such
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coinsurance and direct access reinsurance as the
Administrative Agent may deem necessary or desirable,
(C) with respect to the Canadian Material
Leases, estoppel and consent agreements, in form and substance
satisfactory to the Administrative Agent, executed by each of
the lessors of the leased real properties listed on Schedule
4.01(v)(ii) hereto, along with (x) a memorandum of lease in
recordable form with respect to such leasehold interest,
executed and acknowledged by the owner of the affected real
property, as lessor, or (y) evidence that the applicable lease
with respect to such leasehold interest or a memorandum
thereof has been recorded in all places necessary or
desirable, in the Administrative Agent's reasonable judgment,
to give constructive notice to third-party purchasers of such
leasehold interest, or (z) if such leasehold interest was
acquired or subleased from the holder of a recorded leasehold
interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form
sufficient to give such constructive notice upon recordation
and otherwise in form satisfactory to the Administrative Agent
provided, however, that the Administrative Agent acknowledges
and agrees that certain of the Material Leases may not provide
that the other parties to such Material Leases are required to
provide estoppel or consent agreements in a form and substance
reasonably satisfactory to the Administrative Agent and may
also not permit Loan Parties to provide the items set forth in
clauses (x), (y) and (z) of this provision, and, in such case,
such Loan Parties' sole obligation is to use reasonable
efforts to obtain such agreements and items,
(D) such consents and agreements of lessors and
other third parties, and such estoppel letters and other
confirmations, as the Administrative Agent may deem necessary
or desirable provided, however, that the Administrative Agent
acknowledges and agrees that certain of the Material Leases
may not provide that the other parties to such Material Leases
are required to provide estoppel or consent agreements in a
form and substance reasonably satisfactory to the
Administrative Agent and, in such case, such Loan Parties'
sole obligation is to use reasonable efforts to obtain such
agreements and items,
(E) evidence of the insurance required by the
terms of the Canadian Mortgages covering the Material Leases,
and
(F) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order
to create valid first and subsisting Liens on the property
described in the Canadian Mortgages covering the Material
Leases has been taken.
(G) favorable opinions of local counsel for the
Loan Parties in provinces in which the Material Leases are
located, with respect to the enforceability, perfection and
corporate power and authority in the granting of all Canadian
Mortgages covering Material Leases in such provinces and any
related
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fixture filings substantially in the form of Exhibit K hereto,
and otherwise in form and substance satisfactory to the
Administrative Agent .
(t) Good Standing of Geiger Transfer Service, Inc. The US
Borrower shall deliver a good standing certificate with respect to
Geiger Transfer Service, Inc. by the date that is 60 days after the
Closing Date.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit or any Bankers' Acceptance or any BA Equivalent Advance shall
be outstanding or any Lender Party shall have any Commitment hereunder, the US
Borrower will not, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist,
or permit any of its Subsidiaries (other than the Excluded
Subsidiaries) to create, incur, assume or suffer to exist, any Lien on
or with respect to any of its properties of any character (including,
without limitation, accounts) whether now owned or hereafter acquired,
or sign or file or suffer to exist, or permit any of its Subsidiaries
(other than the Excluded Subsidiaries) to sign or file or suffer to
exist, under the Uniform Commercial Code of any jurisdiction, or the
applicable PPSA a financing statement that names the US Borrower or any
of its Subsidiaries (other than the Excluded Subsidiaries) as debtor,
or sign or suffer to exist, or permit any of its Subsidiaries (other
than the Excluded Subsidiaries) to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file
such financing statement, or assign, or permit any of its Subsidiaries
(other than the Excluded Subsidiaries) to assign, any accounts or other
right to receive income, except:
(i) Liens created under the Loan Documents
(including, without limitation, the Additional Collateral
Account);
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and
described on Schedule 4.01(t) hereto;
(iv) purchase money Liens upon or in real
property or equipment acquired or held by the US Borrower or
any of its Subsidiaries in the ordinary course of business to
secure the purchase price of such property or equipment or to
secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property
or equipment to be subject to such Liens, or Liens existing on
any such property or equipment at the time of acquisition
(other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens
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permitted by this clause (iv) shall not exceed (together with
Debt described in Section 5.02(a)(vi) below) $25,000,000 at
any time outstanding;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iii)(D); provided, that
no such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases;
(vi) other Liens securing Debt outstanding in an
aggregate principal amount (together with Debt described in
Section 5.02(a)(iv) above) not to exceed $25,000,000;
provided, that no such Lien shall extend to or cover any
Collateral; and
(vii) the replacement, extension or renewal of any
Lien permitted by clauses (iii) through (vi) above upon or in
the same property theretofore subject thereto or the
replacement, extension or renewal (without increase in the
amount or change in any direct or contingent obligor) of the
Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries (other than the Excluded Subsidiaries)
to create, incur, assume or suffer to exist, any Debt, except:
(i) in the case of the US Borrower,
(A) Debt in respect of Hedge Agreements
designed to hedge against fluctuations in interest
rates or foreign exchange rates or fuel hedging
contracts incurred in the ordinary course of business
and consistent with prudent business practice;
(B) Debt owed to a wholly owned
Subsidiary (other than an Immaterial Subsidiary) of
the Borrower, which Debt (w) shall, in the case of
Debt owed to a Loan Party, constitute Pledged Debt,
(x) shall be on terms acceptable to the
Administrative Agent, (y) shall be evidenced by
promissory notes in form and substance satisfactory
to the Administrative Agent and such promissory notes
shall, in the case of Debt owed to a Loan Party, be
pledged as security for the Obligations of the holder
thereof under the Loan Documents to which such holder
is a party and delivered to the Collateral Agent
pursuant to the terms of the Security Agreement, and
(z) shall, in the case of Debt owed to a Subsidiary
that is not a Loan Party, (i) be subordinated to the
Obligations of the US Borrower under the Loan
Documents on terms acceptable to the Administrative
Agent and (ii) be permitted by Section 5.02(f)(i);
(C) Debt evidenced by the Senior Notes
and the guarantees thereof contemplated by the Senior
Notes Indenture not to exceed in the aggregate $406
million in aggregate principal amount at any time
outstanding; and
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(D) Any Debt evidenced by notes for the
purpose of refinancing in whole or in part the Term B
Facility in respect of which (i) the covenants and
events of default, taken as a whole, are no more
burdensome to the Loan Parties than the covenants and
events of default, taken as a whole, contained in the
Senior Notes, (ii) the principal amount of such Debt
shall not exceed the principal amount of such
refinanced debt outstanding immediately prior to such
refinancing, (iii) the terms relating to principal
amount, amortization, maturity and subordination (if
any), and other material terms taken as a whole, of
any such Debt, and of any agreement or instrument
issued in connection therewith, are no less favorable
in any material respect to the Loan Parties or the
Lender Parties than the terms of the Senior Notes and
(iv) the interest rate applicable to any such Debt
shall not exceed the then applicable market interest
rate;
(ii) in the case of any Subsidiary of the US
Borrower, Debt owed to the US Borrower or to a wholly owned
Subsidiary of the US Borrower, provided that, in each case,
such Debt (v) shall, in the case of Debt owed to a Loan Party,
constitute Pledged Debt, (w) shall be on terms acceptable to
the Administrative Agent, (x) shall be evidenced by promissory
notes in form and substance satisfactory to the Administrative
Agent and such promissory notes shall, in the case of Debt
owed to a Loan Party, be pledged as security for the
Obligations of the holder thereof under the Loan Documents to
which such holder is a party and delivered to the Collateral
Agent pursuant to the terms of the Security Agreement, (y)
shall, in the case of Debt owed to an Immaterial Subsidiary or
a Subsidiary that is not a Loan Party, be subordinated to the
Obligations of the US Borrower or such Subsidiary under the
Loan Documents on terms acceptable to the Administrative Agent
and (z) shall be permitted by Section 5.02(f)(i); and
(iii) in the case of the US Borrower and its
Subsidiaries,
(A) Debt under the Loan Documents;
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv);
(C) Debt secured by Liens permitted by
Section 5.02(a)(vi) not to exceed in the aggregate
$25,000,000 at any time outstanding;
(D) (x) Capitalized Leases at any time
outstanding not to exceed in the aggregate the sum of
(1) $25,000,000 plus (2) the aggregate amount of
Capitalized Leases assumed in connection with any
acquisition permitted pursuant to Section
5.02(f)(ix), and (y) in the case of Capitalized
Leases to which any Subsidiary of the US Borrower is
a party, Debt of the US Borrower of the type
described in clause (i) of the definition of "DEBT"
guaranteeing the Obligations of such Subsidiary under
such Capitalized Leases subject to the limitations
set forth in Section 5.02(f)(i);
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(E) unsecured Debt incurred in the
ordinary course of business for borrowed money in an
aggregate amount not to exceed $10,000,000 at any
time outstanding.
(F) Surviving Debt; and
(G) Debt in respect of the Bonding
Facilities in an aggregate principal amount not to
exceed for the first year following the Closing Date,
$375,000,000 at any time outstanding (such amount to
increase annually on each anniversary of the
Effective Date by $25,000,000).
References herein to "Subsidiaries" shall not be deemed to
include the Excluded Subsidiaries.
(c) Change in Nature of Business. Make, or permit any of
its Subsidiaries (other than any Excluded Subsidiary) to make, any
material change in the nature of its business as carried on at the date
hereof.
(d) Mergers, Etc. Merge into or consolidate with any
Person or permit any Person to merge into it, or permit any of its
Subsidiaries (other than any Excluded Subsidiary) to do so, except
that:
(i) any Subsidiary of the US Borrower may merge
into, amalgamate, or consolidate with any other Subsidiary of
the US Borrower; provided, that, in the case of any such
merger, amalgamation or consolidation, the Person formed by
such merger, amalgamation or consolidation shall be a wholly
owned Subsidiary of the US Borrower; provided, further, that,
in the case of any such merger, amalgamation or consolidation
to which a US Subsidiary Guarantor or a Canadian Subsidiary
Guarantor is a party, the Person formed by such merger or
consolidation shall (1) be a US Subsidiary Guarantor or
Canadian Subsidiary Guarantor, respectively, and (2) not be an
Immaterial Subsidiary; provided further that in the case of a
merger, amalgamation or consolidation to which both a US
Subsidiary Guarantor and a Canadian Subsidiary Guarantor are
parties, the person formed by such merger, amalgamation or
consolidation shall be a US Subsidiary Guarantor;
(ii) in connection with any acquisition permitted
under Section 5.02(f), any Subsidiary of the US Borrower may
merge into, amalgamate or consolidate with any other Person or
permit any other Person to merge into, amalgamate or
consolidate with it; provided, that (i) the Person surviving
such merger or amalgamation shall be a wholly owned Subsidiary
of the US Borrower and (ii) in the case of any such merger,
amalgamation or consolidation to which a US Subsidiary
Guarantor or a Canadian Subsidiary Guarantor is a party, the
Person formed by such merger, amalgamation or consolidation
shall be a US Subsidiary Guarantor or a Canadian Subsidiary
Guarantor, respectively;
(iii) in connection with any sale or other
disposition permitted under Section 5.02(e) (other than clause
(ii) thereof), any Subsidiary of the US Borrower
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may merge into, amalgamate or consolidate with any other
Person or permit any other Person to merge into, amalgamate or
consolidate with it; and
(iv) the US Borrower and its Subsidiaries may
consummate the Transaction;
provided, however, that in each case, immediately before and after
giving effect thereto, no Default shall have occurred and be
continuing. References herein to "Subsidiaries" shall not be deemed to
include the Excluded Subsidiaries.
(e) Sales, Etc., of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries (other than any
Excluded Subsidiary) to sell, lease, transfer or otherwise dispose of,
any assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets, except:
(i) sales in the ordinary course of its business
and the granting of any option or other right to purchase,
lease or otherwise acquire in the ordinary course of its
business;
(ii) in a transaction authorized by Section
5.02(d) (other than subsection (iii) thereof);
(iii) sales, transfers or other dispositions of
assets among Loan Parties (other than Immaterial Subsidiaries)
(provided that neither the US Borrower nor any US Subsidiary
Guarantor shall sell, transfer or otherwise dispose of assets
to a Canadian Subsidiary Guarantor or Canadian Borrower other
than (i) as permitted by Section 5.02(f)(i) or (ii) in
connection with the assumption by the US Borrower of any
Greyhound Lease);
(iv) sales or other dispositions by any
Subsidiary that is an insurance company of Investments held by
it in the ordinary course of its business;
(v) sales, transfers or other dispositions
pursuant to the Transaction; and
(vi) sales, transfers or other dispositions of
assets for cash and for fair value in an aggregate amount not
to exceed U.S.$5,000,000 in any Fiscal Year so long as no
Default shall have occurred and be continuing or would result
from such sale;
provided, that in the case of sales of assets pursuant to clause (vi)
above, the US Borrower shall prepay the Advances pursuant to, and in
the amount and order of priority set forth in, Section 2.07(b)(ii), as
specified therein. References herein to "Subsidiaries" shall not be
deemed to include the Excluded Subsidiaries.
(f) Investments in Other Persons. Make or hold, or permit
any of its Subsidiaries (other than any Excluded Subsidiary) to make or
hold, any Investment in any Person, except:
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(i) (A) Investments by the US Borrower and its
Subsidiaries in their Subsidiaries outstanding on the date
hereof; provided that Investments outstanding on the date
hereof that consist of guarantees by the US Borrower of
operating leases of Greyhound Lines, Inc., shall not be
extended or renewed by the US Borrower and letters of credit
issued in connection therewith shall not be extended beyond
the termination of such operating leases, (B) additional
Investments in Loan Parties (other than any Immaterial
Subsidiary); provided that the aggregate amount invested in
non-U.S. Loan Parties from the date hereof shall not exceed
$35,000,000 and (C) additional Investments in wholly owned
Subsidiaries that (1) are Immaterial Subsidiaries or (2) are
not Loan Parties in an aggregate amount invested from the date
hereof not to exceed $25,000,000; provided that the aggregate
amount invested from the date hereof in Greyhound Lines, Inc.
and its Subsidiaries shall not exceed $15,000,000;
(ii) loans and advances to employees in the
ordinary course of the business of the US Borrower and its
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $2,000,000 at any time outstanding;
(iii) Investments by the US Borrower and its
Subsidiaries in Cash Equivalents;
(iv) Investments existing on the date hereof and
described on Schedule 4.01(y) hereto;
(v) Investments by the US Borrower in Hedge
Agreements permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(b);
(vii) Investments by the US Borrower and its
Subsidiaries not otherwise permitted under this Section
5.02(f) in an aggregate amount not to exceed U.S. $35,000,000;
provided, that, (1) no such Investment shall be in any
Excluded Subsidiary or any Immaterial Subsidiary and (2) with
respect to each Investment made pursuant to this clause (vii):
(A) such Investment shall not include
or result in any contingent liabilities that could
reasonably be expected to be material to the
business, financial condition, operations or
prospects of the US Borrower and its Subsidiaries,
taken as a whole (as determined in good faith by the
board of directors or persons performing similar
functions of the US Borrower or such Subsidiary if
the board of directors is otherwise approving such
transaction and, in each other case, by a Responsible
Officer);
(B) such Investment shall be in
property and assets which are part of, or in lines of
business which are, substantially the same lines of
119
business as one or more of the principal businesses
of the US Borrower and its Subsidiaries in the
ordinary course;
(C) any determination of the amount of
such Investment shall include all cash and noncash
consideration (including, without limitation, the
fair market value of all Equity Interests issued or
transferred to the sellers thereof, all indemnities,
earnouts and other contingent payment obligations to,
and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated
agreements with, the sellers thereof, all write-downs
of property and assets and reserves for liabilities
with respect thereto and all assumptions of debt,
liabilities and other obligations in connection
therewith) paid by or on behalf of the US Borrower
and its Subsidiaries in connection with such
Investment;
(D) (1) immediately before and
immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have
occurred and be continuing and (2) immediately after
giving effect to such purchase or other acquisition,
the US Borrower and its Subsidiaries shall be in pro
forma compliance with all of the covenants set forth
in Section 5.04, such compliance to be determined on
the basis of the Required Financial Information most
recently delivered to the Administrative Agent and
the Lender Parties as though such Investment had been
consummated as of the first day of the fiscal period
covered thereby; and
(E) the cash consideration for such
Investment shall be solely from (i) the Net Cash
Proceeds of the sale or issue of any Equity Interests
and (ii) the portion of Excess Cash Flow for any
Fiscal Year that is permitted to be retained by the
Borrower;
(viii) Investments by the US Borrower in its
insurance company Subsidiaries solely to the extent necessary
for such Subsidiaries to pay any required insurance premiums;
(ix) Investments by the US Borrower and its
Subsidiaries not otherwise permitted under this Section
5.02(f) in an aggregate amount not to exceed in any Fiscal
Year the Capital Expenditure Acquisition Basket for such
Fiscal Year; provided, that, with respect to each Investment
made pursuant to this clause (ix):
(A) such Investment shall be made in
the education services business segment of the US
Borrower and its Subsidiaries and shall be made
solely in lieu of the US Borrower and its
Subsidiaries making a Capital Expenditure;
(B) such Investment shall not include
or result in any contingent liabilities that could
reasonably be expected to be material to the
business, financial condition, operations or
prospects of the US
120
Borrower and its Subsidiaries, taken as a whole (as
determined in good faith by the board of directors or
persons performing similar functions of the US
Borrower of such Subsidiary if the board of directors
is otherwise approving such transaction and, in each
other case, by a Responsible Officer);
(C) such Investment shall be in
property and assets which are part of, or in lines of
business which are, substantially the same lines of
business as the education services business segment
in the ordinary course;
(D) any determination of the amount of
such Investment shall include all cash and noncash
consideration (including, without limitation, the
fair market value of all Equity Interests issued or
transferred to the sellers thereof, all indemnities,
earnouts and other contingent payment obligations to,
and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated
agreements with, the sellers thereof, all write-downs
of property and assets and reserves for liabilities
with respect thereto and all assumptions of debt,
liabilities and other obligations in connection
therewith) paid by or on behalf of the US Borrower
and its Subsidiaries in connection with such
Investment; and
(E) (1) immediately before and
immediately after giving pro forma effect to any such
purchase or other acquisition, no Default shall have
occurred and be continuing and (2) immediately after
giving effect to such purchase or other acquisition,
the US Borrower and its Subsidiaries shall be in pro
forma compliance with all the covenants set forth in
Section 5.04, such compliance to be determined on the
basis of the Required Financial Information most
recently delivered to the Administrative Agent and
the Lender Parties as though such Investment had been
consummated as of the first day of the fiscal period
covered thereby;
(x) Investments by the US Borrower and its
Subsidiaries not otherwise permitted under this Section
5.02(f) in an aggregate amount not to exceed U.S. $3,000,000;
and
(xi) Investments by the US Borrower and its
Subsidiaries in an aggregate amount not to exceed $10 million
consisting of preferred shares in a certain performance
bonding company for the purpose of procuring performance
bonds; provided, that cash collateral pledged in respect of
the Bonding Facilities shall be released at least dollar for
dollar with the amount invested in any such preferred shares.
References herein to "Subsidiaries" shall not be deemed to
include the Excluded Subsidiaries.
121
(g) Restricted Payments. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any of
its Equity Interests now or hereafter outstanding, return any capital
to its stockholders, partners or members (or the equivalent Persons
thereof) as such, make any distribution of assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or
the equivalent Persons thereof) as such or issue or sell any Equity
Interests or accept any capital contributions, or permit any of its
Subsidiaries (other than any Excluded Subsidiary) to do any of the
foregoing, or permit any of its Subsidiaries (other than any Excluded
Subsidiary) to purchase, redeem, retire, defease or otherwise acquire
for value any Equity Interests in the US Borrower or to issue or sell
any Equity Interests therein, except that, so long as no Default shall
have occurred and be continuing at the time of any action described
below or would result therefrom:
(i) the US Borrower may declare and pay
dividends and distributions payable only in common stock of
the US Borrower, and
(ii) any Subsidiary of the US Borrower may (A)
declare and pay cash dividends to any other Loan Party (other
than an Immaterial Subsidiary) of which it is a Subsidiary and
(B) accept capital contributions from its parent to the extent
permitted under Section 5.02(f)(i).
(h) Amendments of Constitutive Documents. Amend, or
permit any of its Subsidiaries (other than any Excluded Subsidiary) to
amend, its certificate of incorporation or bylaws or other constitutive
documents other than amendments that would not be reasonably expected
to have a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of
its Subsidiaries (other than any Excluded Subsidiary) to make or
permit, any change in (i) accounting policies or reporting practices,
except as required or permitted by generally accepted accounting
principles, or (ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, except (i) the prepayment of the Advances in accordance
with the terms of this Agreement and (ii) required prepayments or
redemptions of Surviving Debt, or amend, modify or change in any manner
any term or condition of any Surviving Debt or Subordinated Debt, or
permit any of its Subsidiaries (other than any Excluded Subsidiary) to
do any of the foregoing other than to prepay any Debt payable to any
Loan Party.
(k) Amendment, Etc., of Related Documents. (i) Cancel or
terminate any Related Document or consent to or accept any cancellation
or termination thereof, (ii) amend, modify or change in any manner any
term or condition of any Related Document or give any consent, waiver
or approval thereunder, (iii) waive any default under or any breach of
any term or condition of any Related Document, (iv) agree in any manner
to any other amendment, modification or change of any term or condition
of any Related Document or (v) take any other action in connection with
any Related Document that, in
122
the case of clauses (ii) through (v), could be reasonably likely to
have a Material Adverse Effect, or permit any of its Subsidiaries to do
any of the foregoing. For the avoidance of doubt, this covenant applies
to any of the foregoing actions taken by any Excluded Subsidiary with
respect to the PBGC Agreement.
(l) Negative Pledge. Enter into or suffer to exist, or
permit any of its Subsidiaries (other than any Excluded Subsidiary) to
enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien upon any of its
property or assets except (i) restrictions contained in any agreements
in effect on the Effective Date, (ii) in favor of the Secured Parties
or (iii) in connection with (A) any Surviving Debt, (B) any purchase
money Debt permitted by Section 5.02(b)(iii)(B) solely to the extent
that the agreement or instrument governing such Debt prohibits a Lien
on the property acquired with the proceeds of such Debt or (C) any
Capitalized Lease permitted by Section 5.02(b)(iii)(D) solely to the
extent that such Capitalized Lease prohibits a Lien on the property
subject thereto.
(m) Partnerships, Etc. Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiaries (other than any Excluded Subsidiary) to do so, other than
any Subsidiary the sole assets of which consist of its interest in such
partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of
its Subsidiaries (other than any Excluded Subsidiary) to engage, in any
transaction involving commodity options or futures contracts or any
similar speculative transactions other than bona fide nonspeculative
hedging transactions entered into in the ordinary course of business
consistent with past practices.
(o) Capital Expenditures. Make, or permit any of its
Subsidiaries to make, any Capital Expenditures that would cause the
aggregate of all such Capital Expenditures made by the US Borrower and
its Subsidiaries (other than the Excluded Subsidiaries) excluding
Investments consisting of Capital Expenditures made under Section
5.02(f)(vii) (together with the amount invested during such period in
accordance with the terms of Section 5.02(f)(ix)) in any period set
forth below to exceed the amount set forth below for such period:
- ------------------------------------------
QUARTER ENDING IN AMOUNT
- ------------------------------------------
August 31, 2003 $95,000,000
- ------------------------------------------
- ------------------------------------------
FISCAL YEAR ENDING IN AMOUNT
- ------------------------------------------
2004 $270,000,000
2005 $340,000,000
2006 $320,000,000
2007 $390,000,000
2008 $340,000,000
2009 $280,000,000
- ------------------------------------------
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provided, however, that if, for any Fiscal Year set forth above, the
amount specified above for such Fiscal Year exceeds the aggregate
amount of Capital Expenditures made by the US Borrower and its
Subsidiaries during such Fiscal Year (the amount of such excess being
the "EXCESS AMOUNT"), the US Borrower and its Subsidiaries shall be
entitled to make additional Capital Expenditures in the immediately
succeeding Fiscal Year in an amount (such amount being referred to
herein as the "CARRYOVER AMOUNT") equal to the lesser of (i) the Excess
Amount and (ii) 25% of the amount specified above for such immediately
preceding Fiscal Year. References herein to "Subsidiaries" shall not be
deemed to include the Excluded Subsidiaries.
(p) Formation of Subsidiaries. Organize or invest, or
permit any of its Subsidiaries (other than any Excluded Subsidiary) to
organize or invest, in any new Subsidiary except as permitted under
Section 5.02(f)(i) or (vii).
(q) Payment Restrictions Affecting Subsidiaries. Directly
or indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries (other than any Excluded Subsidiary) to enter into or
suffer to exist, any agreement or arrangement limiting the ability of
any of its Subsidiaries (other than any Excluded Subsidiary) to declare
or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the US Borrower or
any Subsidiary of the US Borrower (whether through a covenant
restricting dividends, loans, asset transfers or investments, a
financial covenant or otherwise), except as required from time to time
under the existing Federal Insurance Bonding Facility and the Loan
Documents.
(r) Amendment, Etc., of Material Contracts. (i) Cancel or
terminate any Material Contract or consent to or accept any
cancellation or termination thereof, (ii) amend or otherwise modify any
Material Contract or give any consent, waiver or approval thereunder,
(iii) waive any default under or breach of any Material Contract, (iv)
agree in any manner to any other amendment, modification or change of
any term or condition of any Material Contract or (v) take any other
action in connection with any Material Contract that, in the case of
clauses (ii) through (v), could be reasonably likely to have a Material
Adverse Effect, or permit any of its Subsidiaries (other than any
Excluded Subsidiary) to do any of the foregoing.
(s) Amendment of Bonding Facility Documents. Amend or
otherwise modify any document pertaining to the Bonding Facilities in
any manner that could be reasonably likely to have a Material Adverse
Effect.
SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit or any Bankers' Acceptance or any BA Equivalent Advance
shall be outstanding or any Lender Party shall have any Commitment hereunder,
the US Borrower, or the applicable Borrower, as the case may be, will furnish to
the Agents and the Lender Parties:
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(a) Default Notice. As soon as possible and in any event
within two days after the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the
chief financial officer of the applicable Borrower setting forth
details of such Default and the action that such Borrower has taken and
proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any
event within 90 days after the end of each Fiscal Year, a copy of the
annual audit report for such year for the US Borrower and its
Subsidiaries, including therein Consolidated balance sheets and related
Consolidated statements of operations, shareholders' equity and cash
flows, in each case accompanied by an opinion acceptable to the
Required Lenders of PricewaterhouseCoopers or other independent public
accountants of recognized standing acceptable to the Required Lenders,
together with (i) a report of such accounting firm certifying to the
Lender Parties that in the course of the regular audit of the business
of the US Borrower and its Subsidiaries, which audit was conducted by
such accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default has occurred (in so far as such default relates to accounting
matters) and is continuing, or if, in the opinion of such accounting
firm, a Default (related to accounting matters) has occurred and is
continuing, a statement as to the nature thereof, (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used
by such accountants in determining, as of the end of such Fiscal Year,
compliance with the covenants contained in Section 5.04; provided, that
in the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the US Borrower
shall also provide, if necessary for the determination of compliance
with Section 5.04, a statement of reconciliation conforming such
financial statements to GAAP and (iii) a certificate of the Chief
Financial Officer of the US Borrower stating that no Default has
occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that
the US Borrower has taken and proposes to take with respect thereto and
a financial statement footnote providing Consolidated balance sheets,
statements of operations and cash flows for both the US Borrower and
its Subsidiaries (other than Excluded Subsidiaries) and for the
Excluded Subsidiaries in substantially the form of Schedule 5.03(b)(i)
attached hereto and a schedule providing a consolidating balance sheet,
statement of operations and purchases of property and equipment across
the businesses in substantially the form of Schedule 5.03(b)(ii)
attached hereto.
(c) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, Consolidated balance sheets of the US Borrower and
its Subsidiaries and related Consolidated statements of operations,
shareholders' equity and cash flows for the period commencing at the
end of the previous fiscal quarter and ending with the end of such
fiscal quarter and Consolidated statements of operations, shareholders'
equity and cash flows for the period commencing at the end of the
previous Fiscal Year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures for
the corresponding date or period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to normal year-end audit
adjustments) by the Chief Financial
125
Officer of the Borrower as having been prepared in accordance with
GAAP, together with (i) a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action
that the US Borrower has taken and proposes to take with respect
thereto and (ii) a schedule in form satisfactory to the Administrative
Agent of the computations used by the US Borrower in determining
compliance with the covenants contained in Section 5.04; provided, that
in the event of any change in generally accepted accounting principles
used in the preparation of such financial statements, the US Borrower
shall also provide, if necessary for the determination of compliance
with Section 5.04, a statement of reconciliation conforming such
financial statements to GAAP and a financial statement footnote
providing Consolidated balance sheets, statements of operations and
cash flows for both the US Borrower and its Subsidiaries (other than
the Excluded Subsidiaries) and for the Excluded Subsidiaries in
substantially the form of Schedule 5.03(c)(i) attached hereto, and a
schedule providing a consolidating balance sheet, statement of
operations and purchases of property and equipment across the
businesses in substantially the form of Schedule 5.03(c)(ii) attached
hereto, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the
preceding Fiscal Year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the Chief Financial
Officer of the US Borrower as having been prepared in accordance with
GAAP.
(d) Monthly Financials. As soon as available and in any
event within 35 days after the end of each month, consolidating balance
sheets and statements of operations across the businesses in
substantially the form of Schedule 5.03(d) attached hereto, in each
case in reasonable detail and duly certified by the Chief Financial
Officer of the US Borrower.
(e) Annual Forecasts. As soon as available and in any
event no later than 30 days after the end of each Fiscal Year,
consolidating forecasts of the US Borrower and its Subsidiaries (other
than the Excluded Subsidiaries) prepared by management of the US
Borrower, in form satisfactory to the Administrative Agent, of balance
sheets, statements of operations and cash flows on a monthly basis for
the Fiscal Year following such Fiscal Year and on an annual basis for
each Fiscal Year thereafter until the Termination Date in respect of
the Term B Facility.
(f) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any Governmental Authority affecting any Loan Party
or any of its Subsidiaries of the type described in Section 4.01(f),
and promptly after the occurrence thereof, notice of any adverse change
in the status or the financial effect on any Loan Party or any of its
Subsidiaries of the Disclosed Litigation from that described on
Schedule 4.01(f) hereto. References herein to "Subsidiaries" shall not
be deemed to include the Excluded Subsidiaries except to the extent
that any of the foregoing relates to the Pension Plans.
(g) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements
and reports that the US Borrower sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
126
statements, that any Loan Party or any of its Subsidiaries files with
the Securities and Exchange Commission or any governmental authority
that may be substituted therefor, or with any national securities
exchange. References herein to "Subsidiaries" shall not be deemed to
include the Excluded Subsidiaries except to the extent that any of the
foregoing relates to the Pension Plans.
(h) Tax Reports. Within 10 days after receipt, (i) copies
of all Revenue Agent Reports (Internal Revenue Service Form 886), or
other written proposals of the Internal Revenue Service, that propose,
determine or otherwise set forth positive adjustments to the regular
federal income tax liability of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the US Borrower is a member aggregating $7,000,000 or more; and (ii)
copies of any assessment or reassessment made by the Canada Customs and
Revenue Agency or any communication issued by the Canada Customs and
Revenue Agency proposing or indicating that an assessment or
reassessment may be made, of the US Borrower or any corporation related
to it ,within the meaning of the Income Tax Act (Canada), involving an
increase in the taxable income of such entity exceeding CN $5,000,000,
or an increased tax liability of such entity exceeding CN $1,750,000.
(i) Tax Certificates. Promptly, and in any event within
ten Business Days after the due date (with extensions) for filing the
final federal income tax return in respect of each taxable year, a
certificate signed by the President or the Chief Financial Officer of
the US Borrower, stating that the US Borrower has paid to the Internal
Revenue Service or other taxing authority, the full amount that such
affiliated group is required to pay in respect of federal income tax
for such year. Promptly, and in any event within ten Business Days
after the due date for filing the federal income tax return in respect
of each taxation year of each corporation that was incorporated under
the laws of Canada or a Province or Territory of Canada, carried on
business in Canada for the purposes of the Income Tax Act (Canada) or
disposed of taxable Canadian property as defined in the Income Tax Act
(Canada) and that is related to the US Borrower within the meaning of
the Income Tax Act (Canada), a certificate signed by the President or
the Chief Financial Officer of the US Borrower, stating that such
corporations have paid to the Canada Customs and Revenue Agency, or
other taxing authority having jurisdiction, as the case may be, the
full amount that such corporations are required to pay under any
Canadian federal statute that imposes taxes.
(j) ERISA. (i) ERISA Events and ERISA Reports. (A)
Promptly and in any event within 10 days after any Loan Party or any
ERISA Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the Chief Financial Officer of the US Borrower
describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents
and information.
(ii) Plan Terminations. Promptly and in any event within
three Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate, copies of each notice
127
from the PBGC stating its intention to terminate any Plan or to have a
trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within
30 days after the filing thereof with the Internal Revenue Service,
copies of each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) with respect to each Plan.
(iv) Actuarial Valuation Reports. Promptly and in any
event within 30 days after receipt thereof by any Loan Party or any
ERISA Affiliate, copies of each annual valuation report prepared with
respect to any Pension Plan.
(v) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (C) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(k) Environmental Conditions. Promptly after the
assertion or occurrence thereof, notice of any Environmental Action
against or of any noncompliance by any Loan Party or any of its
Subsidiaries (other than any Excluded Subsidiary) with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law.
(l) Real Property. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(u)(i), 4.01(u)(ii), 4.01(v)(i) and
4.01(v)(ii) hereto, including an identification of all owned and leased
real property disposed of by the US Borrower or any of its Subsidiaries
(other than any Excluded Subsidiary) during such Fiscal Year, a list
and description (including the street address, county or other relevant
jurisdiction, state, record owner, book value thereof and, in the case
of leases of property, lessor, lessee, expiration date and annual
rental cost thereof) of all real property acquired or leased during
such Fiscal Year and a description of such other changes in the
information included in such Schedules as may be necessary for such
Schedules to be accurate and complete.
(m) Insurance. As soon as available and in any event
within 30 days after the end of each Fiscal Year, a report summarizing
the insurance coverage (specifying type, amount and carrier) in effect
for the US Borrower and its Subsidiaries (other than any Excluded
Subsidiary) and containing such additional information as any Agent, or
any Lender Party through the Administrative Agent, may reasonably
specify.
(n) Other Information. Such other information respecting
the business, condition (financial or otherwise), operations,
performance, properties or prospects of
128
any Loan Party or any of its Subsidiaries as any Agent, or any Lender
Party through the Administrative Agent, may from time to time
reasonably request.
(o) Insurance Asset Reports. As soon as available and in
any event within 45 days after the end of each fiscal quarter of each
Fiscal Year, insurance asset reports that set forth insurance reserves
and collateral in the form of Schedule III hereto.
(p) Greyhound Lease Certificates. At the end of each
fiscal quarter, a certificate of an officer of the US Borrower
certifying (i) the Stipulated Loss Value under the Greyhound Leases
guaranteed by the US Borrower as of the end of such fiscal quarter and
the amount of any reduction from the previous fiscal quarter and (ii)
if the US Borrower has the right to assume any Greyhound Lease, the
amount of the Stipulated Loss Value in respect of such assumable lease.
(q) Vehicle Reports. As soon as available and in any
event within 30 days after the end of each Fiscal Year, a report that
lists and describes (including the owner, vehicle type, vehicle
identification number, state of registration, and purchase price or
sale price, as applicable) all Vehicles acquired or disposed of during
such Fiscal Year.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit or any Bankers' Acceptance or any BA Equivalent Advance shall
be outstanding or any Lender Party shall have any Commitment hereunder, the US
Borrower will:
(a) Fixed Charge Coverage Ratio. Maintain at all times a
Fixed Charge Coverage Ratio of not less than the amount set forth below
for each Measurement Period set forth below:
==============================================================
MEASUREMENT PERIOD ENDING RATIO
==============================================================
August 31, 2003 1.05 to 1
November 30, 2003 1.15 to 1
February 29, 2004 1.15 to 1
May 31, 2004 1.15 to 1
August 31, 2004 1.15 to 1
November 30, 2004 1.15 to 1
February 28, 2005 1.15 to 1
May 31, 2005 1.15 to 1
August 31, 2005 1.15 to 1
November 30, 2005 1.15 to 1
February 28, 2006 1.25 to 1
May 31, 2006 1.25 to 1
August 31, 2006 1.25 to 1
November 30, 2006 1.25 to 1
February 28, 2007 1.25 to 1
May 31, 2007 1.25 to 1
August 31, 2007 1.25 to 1
November 30, 2007 1.25 to 1
==============================================================
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==============================================================
MEASUREMENT PERIOD ENDING RATIO
==============================================================
February 29, 2008 1.25 to 1
May 31, 2008 1.25 to 1
August 31, 2008 1.25 to 1
November 30, 2008 1.25 to 1
February 28, 2009 1.25 to 1
April __, 2009 1.25 to 1
==============================================================
(b) Leverage Ratio. Maintain at all times a Leverage
Ratio of not more than the amount set forth below for each Measurement
Period set forth below:
========================================================
MEASUREMENT PERIOD ENDING RATIO
========================================================
August 31, 2003 3.25 to 1
November 30, 2003 3.25 to 1
February 29, 2004 3.00 to 1
May 31, 2004 3.00 to 1
August 31, 2004 3.00 to 1
November 30, 2004 2.75 to 1
February 28, 2005 2.75 to 1
May 31, 2005 2.75 to 1
August 31, 2005 2.50 to 1
November 30, 2005 2.25 to 1
February 28, 2006 2.25 to 1
May 31, 2006 2.25 to 1
August 31, 2006 2.25 to 1
November 30, 2006 2.00 to 1
February 28, 2007 2.00 to 1
May 31, 2007 2.00 to 1
August 31, 2007 2.00 to 1
November 30, 2007 2.00 to 1
February 29, 2008 2.00 to 1
May 31, 2008 2.00 to 1
August 31, 2008 2.00 to 1
November 30, 2008 2.00 to 1
February 28, 2009 2.00 to 1
April __, 2009 2.00 to 1
========================================================
(c) Interest Coverage Ratio. Maintain at all times an
Interest Coverage Ratio of not less than the amount set forth below for
each Measurement Period set forth below:
========================================================
MEASUREMENT PERIOD ENDING RATIO
========================================================
August 31, 2003 3.85 to 1
November 30, 2003 4.00 to 1
February 29, 2004 4.00 to 1
========================================================
130
========================================================
MEASUREMENT PERIOD ENDING RATIO
========================================================
May 31, 2004 4.00 to 1
August 31, 2004 4.00 to 1
November 30, 2004 4.50 to 1
February 28, 2005 4.50 to 1
May 31, 2005 4.50 to 1
August 31, 2005 4.50 to 1
November 30, 2005 5.00 to 1
February 28, 2006 5.00 to 1
May 31, 2006 5.00 to 1
August 31, 2006 5.00 to 1
November 30, 2006 5.00 to 1
February 28, 2007 5.00 to 1
May 31, 2007 5.00 to 1
August 31, 2007 5.00 to 1
November 30, 2007 5.00 to 1
February 29, 2008 5.00 to 1
May 31, 2008 5.00 to 1
August 31, 2008 5.00 to 1
November 30, 2008 5.00 to 1
February 28, 2009 5.00 to 1
April __, 2009 5.00 to 1
========================================================
(d) Net Tangible Assets Ratio. Maintain at all times a
Net Tangible Assets Ratio of at least 1.5:1.0; provided, that the
Borrower shall be permitted to cure any failure to comply with the Net
Tangible Assets Ratio by making an optional prepayment under Section
2.07(a) hereof.
(e) Maximum Senior Secured Leverage Ratio. Maintain at
all times a Maximum Senior Secured Leverage Ratio of not less than the
amount set forth below for each Measurement Period set forth below:
========================================================
MEASUREMENT PERIOD ENDING RATIO
========================================================
August 31, 2003 2.00 to 1
November 30, 2003 2.00 to 1
February 29, 2004 1.75 to 1
May 31, 2004 1.75 to 1
August 31, 2004 1.75 to 1
November 30, 2004 1.75 to 1
February 28, 2005 1.50 to 1
May 31, 2005 1.50 to 1
August 31, 2005 1.50 to 1
November 30, 2005 1.25 to 1
February 28, 2006 1.25 to 1
May 31, 2006 1.25 to 1
========================================================
131
========================================================
MEASUREMENT PERIOD ENDING RATIO
========================================================
August 31, 2006 1.25 to 1
November 30, 2006 1.00 to 1
February 28, 2007 1.00 to 1
May 31, 2007 1.00 to 1
August 31, 2007 1.00 to 1
November 30, 2007 1.00 to 1
February 29, 2008 1.00 to 1
May 31, 2008 1.00 to 1
August 31, 2008 1.00 to 1
November 30, 2008 1.00 to 1
February 28, 2009 1.00 to 1
April __, 2009 1.00 to 1
========================================================
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of
any Advance or any portion of any Bankers' Acceptance or any BA
Equivalent Advance when the same shall become due and payable or (ii)
any Borrower shall fail to pay any interest on any Advance, or any Loan
Party shall fail to make any other payment under any Loan Document, in
each case under this clause (ii) within 2 Business Days after the same
shall become due and payable; or
(b) any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made or
confirmed; or
(c) any Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.15, 5.01(e), (f),
(i), (j), (m) or (p), 5.02, 5.03 or 5.04; or
(d) any Loan Party shall fail to perform or observe any
other term, covenant or agreement contained in any Loan Document on its
part to be performed or observed if such failure shall remain
unremedied for 30 days after the earlier of the date on which (i) a
Responsible Officer becomes aware of such failure or (ii) written
notice thereof shall have been given to the US Borrower by any Agent or
any Lender Party; or
(e) any Loan Party or any of its Subsidiaries (other than
any Excluded Subsidiary) shall fail to pay any principal of, premium or
interest on or any other amount payable in respect of any Debt of such
Loan Party or such Subsidiary (as the case may be) that is outstanding
in a principal amount (or, in the case of any Hedge Agreement, an
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Agreement Value) of at least $10,000,000 either individually or in the
aggregate for all such Loan Parties and Subsidiaries (but excluding
Debt outstanding hereunder), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be
declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries (other than
any Excluded Subsidiary) shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted or any step taken by
or against any Loan Party or any of its Subsidiaries (other than any
Excluded Subsidiary) (i) seeking to adjudicate it a bankrupt or
insolvent, (ii) seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, (iii) seeking the entry of an
order for relief against it or any substantial part of its property,
(iv) for the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property or (v)
seeking the seizure of or control over any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in
good faith, either such proceeding shall remain undismissed or unstayed
for a period of 45 days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or any Loan Party or any of its Subsidiaries (other than any
Excluded Subsidiary) shall take any corporate action to authorize any
of the actions set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in
the aggregate, for the payment of money in excess of $15,000,000 shall
be rendered against any Loan Party or any of its Subsidiaries (other
than any Excluded Subsidiary) and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order
or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; provided, however, that
any such judgment or order shall not give rise to an Event of Default
under this Section 6.01(g) if and for so long as (A) the amount of such
judgment or order is covered by a valid and binding policy of insurance
between the defendant and the insurer, which shall be rated at least
"A" by A.M. Best Company, covering full payment thereof and (B) such
insurer has been notified, and has not disputed the claim made for
payment, of the amount of such judgment or order; or
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(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries (other than any
Excluded Subsidiary) that could have a Material Adverse Effect, and
there shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(i) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason cease
to be valid and binding on or enforceable against any Loan Party party
to it, or any such Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after
delivery thereof pursuant to Section 3.01 or 5.01(j) shall for any
reason (other than pursuant to the terms thereof) cease to create a
valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby or any such Loan Party shall
so state in writing; or
(k) a Change of Control shall occur other than as a
result of giving effect to the Transaction; or
(l) any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $15,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$15,000,000 or requires payments exceeding $3,500,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$3,500,000; or
(o) the aggregate amount of quarterly contributions
required to be made under Section 412(m) of the Internal Revenue Code
(determined by the actuary for the Pension Plans in accordance with the
PBGC Agreement and assuming timely payment of the Enhanced
Contributions (as defined in the PBGC Agreement)) with respect to the
134
Pension Plans for any plan year except 2006 shall exceed $20 million,
or for the 2006 plan year shall exceed $50.5 million; or
(p) an "Event of Default" (as defined in the PBGC
Agreement) shall have occurred under the PBGC Agreement, unless waived
by the PBGC or cured by the US Borrower and its Subsidiaries in
accordance with the PBGC Agreement; or
(q) the PBGC Agreement shall be amended, modified or
supplemented or any member of the Laidlaw Group shall enter into an
additional agreement with the PBGC, in each case which materially
increases the obligations of the Laidlaw Group with respect to the
Pension Plans, including, without limitation, any amendment
accelerating the payment obligations of any member of the Laidlaw Group
under the PBGC Agreement; or
(r) a Triggering Event shall occur under surety bonds in
an aggregate penal amount of $5 million or more.
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the US Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Revolving Credit Lender pursuant to Section 2.03(c) and Canadian Revolving
Credit Advances by a Revolving Credit Lender pursuant to Section 2.02(b)) of
each Canadian Lender to create and/or purchase Bankers' Acceptances and/or make
BA Equivalent Advances and of each Issuing Bank to issue Letters of Credit to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, (A) by notice to the
US Borrower, declare the Advances, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Advances, all such interest and all such amounts
shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by the US Borrower, (B) by notice to each party required under the terms of any
agreement in support of which a Standby Letter of Credit is issued, request that
all Obligations under such agreement be declared to be due and payable;
provided, however, that upon the occurrence of an Event of Default pursuant to
Section 6.01(f) (x) the Commitments of each Lender Party and the obligation of
each Lender Party to make Advances (other than Letter of Credit Advances by an
Issuing Bank or a Revolving Credit Lender pursuant to Section 2.03(c) and
Canadian Revolving Credit Advances by a Revolving Credit Lender pursuant to
Section 2.02(c)) and of each Canadian Lender to accept and/or purchase Bankers'
Acceptances and/or Notional Bankers' Acceptances and of each Issuing Bank to
issue Letters of Credit shall automatically be terminated and (y) the Advances,
all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrowers.
SECTION 6.02. Actions in Respect of the Letters of Credit, Bankers'
Acceptances BA Equivalent Advances upon Default. If any Event of Default shall
have occurred and be continuing, the Administrative Agent may, or shall at the
request of the Required Lenders, irrespective of whether it is taking any of the
actions described in Section 6.01 or otherwise, (a)
135
make demand upon any Borrower to, and forthwith upon such demand such Borrower
will, pay to the Collateral Agent on behalf of the Lender Parties in same day
funds at the Collateral Agent's office designated in such demand, for deposit in
the L/C Cash Collateral Account, an amount equal to the aggregate Available
Amount of all Letters of Credit then outstanding and (b) make demand upon any
Canadian Borrower to, and forthwith upon such demand, such Canadian Borrower
will, pay to the Administrative Agent on behalf of the Canadian Lenders in same
day funds at the Administrative Agent's office designated in such demand, for
deposit in the BA Collateral Account, an amount equal to the aggregate Face
Amount of all Bankers' Acceptances and Notional Bankers' Acceptances then
outstanding. If at any time the Administrative Agent or the Collateral Agent
determines that any funds held in the L/C Collateral Account are subject to any
right or claim of any Person other than the Agents and the Lender Parties or
that the total amount of such funds is less than the aggregate Available Amount
of all Letters of Credit, such Borrower will, forthwith upon demand by the
Administrative Agent or the Collateral Agent, pay to the Collateral Agent, as
additional funds to be deposited and held in the L/C Collateral Account, an
amount equal to the excess of (a) such aggregate Available Amount over (b) the
total amount of funds, if any, then held in the L/C Collateral Account that the
Administrative Agent or the Collateral Agent, as the case may be, determines to
be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit for which funds are on deposit in the L/C Collateral Account, such funds
shall be applied to reimburse the relevant Issuing Bank or Revolving Credit
Lenders, as applicable, to the extent permitted by applicable law. If at any
time the Administrative Agent determines that any funds held in the BA
Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent and the Canadian Lenders or that the total amount of
such funds is less than the aggregate Face Amount of all Bankers' Acceptances
and Notional Bankers' Acceptances, any Canadian Borrower will, forthwith upon
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds to be deposited and held in the BA Collateral Account, an
amount equal to the excess of (a) such aggregate Face Amount over (b) the total
amount of funds, if any, then held in the BA Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender, an Issuing Bank (if applicable), a Swing Line Bank (if
applicable), a Canadian Lender (if applicable) and on behalf of itself and its
Affiliates as potential Hedge Banks) hereby appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; which powers shall include,
without limitation, the entry by the Administrative Agent, on behalf of the
Lenders, into the Intercreditor Agreements. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), no Agent shall be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such
136
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender Party prompt notice
of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 8.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of any Loan Document on the part of any Loan Party or the existence
at any time of any Default under the Loan Documents or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. CNAI, CSFB and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, CNAI and CSFB
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not an Agent; and the
term "Lender Party" or "Lender Parties" shall, unless otherwise expressly
indicated, include CNAI and CSFB in their respective individual capacities. CNAI
and CSFB and their respective affiliates may accept deposits from, lend money
to, act as trustee under indentures of, accept investment banking engagements
from and generally engage in any kind of business with, any Loan Party, any of
its Subsidiaries and any Person that may do business with or own securities of
any Loan Party or any such Subsidiary, all as if CNAI and CSFB were not Agents
and without any duty to account therefor to the Lender Parties. No Agent shall
have any duty to disclose any information obtained or received by it or any of
its Affiliates relating to any Loan Party or any of its Subsidiaries to the
extent such information was obtained or received in any capacity other than as
such Agent.
137
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally agrees
to indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents (collectively, the
"INDEMNIFIED COSTS"); provided, however, that no Lender Party shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or willful misconduct as found in a final,
non-appealable judgment by a court of competent jurisdiction. Without limitation
of the foregoing, each Lender Party agrees to reimburse each Agent promptly upon
demand for its ratable share of any costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) payable by the Borrowers
under Section 8.04, to the extent that such Agent is not promptly reimbursed for
such costs and expenses by the Borrowers. In the case of any investigation,
litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05
applies whether any such investigation, litigation or proceeding is brought by
any Lender Party or any other Person.
(b) Each Lender Party severally agrees to indemnify each
Issuing Bank (to the extent not promptly reimbursed by the Borrowers) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against such Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Issuing Bank's gross
negligence or willful misconduct as found in a final, non-appealable judgment by
a court of competent jurisdiction. Without limitation of the foregoing, each
Lender Party agrees to reimburse such Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrowers under Section 8.04, to the extent
that such Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrowers.
(c) For purposes of this Section 7.05, the Lender
Parties' respective ratable shares of any amount shall be determined, at any
time, according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender
138
Parties, (ii) their respective Pro Rata Shares of the aggregate Available Amount
of all Letters of Credit outstanding at such time, (iii) the aggregate unused
portions of their respective Term B Commitments at such time, (iv) their
respective pro rata shares of the aggregate Face Amount of all Bankers'
Acceptances or Notional Bankers' Acceptances outstanding at such time and (v)
their respective Unused Revolving Credit Commitments at such time; provided,
that the aggregate principal amount of Canadian Advances owing to any Canadian
Lender, the Face Amount of Bankers' Acceptances or Notional Bankers' Acceptances
outstanding at such time and of Letter of Credit Advances owing to any Issuing
Bank shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments. The failure of
any Lender Party to reimburse any Agent or any Issuing Bank, as the case may be,
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Parties to such Agent or such Issuing Bank, as the case may be, as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Agent or such Issuing Bank, as the case may be, for
its ratable share of such amount, but no Lender Party shall be responsible for
the failure of any other Lender Party to reimburse such Agent or such Issuing
Bank, as the case may be, for such other Lender Party's ratable share of such
amount. Without prejudice to the survival of any other agreement of any Lender
Party hereunder, the agreement and obligations of each Lender Party contained in
this Section 7.05 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign as to any or all
of the Facilities at any time by giving written notice thereof to the Lender
Parties and the US Borrower and may be removed as to all of the Facilities at
any time with or without cause by the Required Lenders; provided, however, that
any removal of the Administrative Agent will not be effective until it has also
been replaced as Collateral Agent, Canadian Lender and Letter of Credit Issuing
Bank and released from all of its obligations in respect thereof. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent as to such of the Facilities as to which such Agent has resigned
or been removed. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent as to all of the
Facilities and, in the case of a successor Collateral Agent, upon the execution
and filing or recording of such financing statements, or amendments thereto, and
such amendments or supplements to the Mortgages, and such other instruments or
notices, as may be necessary or desirable, or as the Required Lenders
139
may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent as to less than all of
the Facilities and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent as to such Facilities, other than with respect
to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Agent with respect to the Letter of Credit Facility) and payments
by the Borrowers in respect of such Facilities, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
as to such Facilities, other than as aforesaid. If within 45 days after written
notice is given of the retiring Agent's resignation or removal under this
Section 7.06 no successor Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (a) the retiring Agent's
resignation or removal shall become effective, (b) the retiring Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (c) the Required Lenders shall thereafter perform all duties of the retiring
Agent under the Loan Documents until such time, if any, as the Required Lenders
appoint a successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as Agent as to any of the Facilities shall have
become effective, the provisions of this Article VII shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent as to
such Facilities under this Agreement.
SECTION 7.07. Appointment of Supplemental Collateral Agents. (a) It is
the purpose of this Agreement and the other Loan Documents that there shall be
no violation of any law of any jurisdiction denying or restricting the right of
banking corporations or associations to transact business as agent or trustee in
such jurisdiction. It is recognized that in case of litigation under this
Agreement or any of the other Loan Documents, and in particular in case of the
enforcement of any of the Loan Documents, or in case the Collateral Agent deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the rights, powers or remedies granted herein or in any of the
other Loan Documents or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that the Collateral Agent
appoint an additional individual or institution as a separate trustee,
co-trustee, collateral agent, collateral sub-agent or collateral co-agent (any
such additional individual or institution being referred to herein individually
as a "SUPPLEMENTAL COLLATERAL AGENT" and collectively as "SUPPLEMENTAL
COLLATERAL AGENTS").
(b) In the event that the Collateral Agent appoints a
Supplemental Collateral Agent with respect to any Collateral, (i) each and every
right, power, privilege or duty expressed or intended by this Agreement or any
of the other Loan Documents to be exercised by or vested in or conveyed to the
Collateral Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either the Collateral Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Article and of Section 8.04 that refer to the Collateral
Agent or the Agents shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to the Collateral Agent or the Agents shall be
deemed to include a reference to such Supplemental Collateral Agent, as the
context may require.
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(c) Should any instrument in writing from any Loan Party
be required by any Supplemental Collateral Agent so appointed by the Collateral
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, such Loan Party shall execute,
acknowledge and deliver any and all such instruments promptly upon request by
the Collateral Agent. In case any Supplemental Collateral Agent, or a successor
thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall vest in and be exercised by the Collateral
Agent until the appointment of a new Supplemental Collateral Agent.
SECTION 7.08. Appointment of Citibank, Canada as Fonde de Pouvoir. The
Lenders hereby appoint Citibank, Canada to act as the fonde de pouvoir ("person
holding the power of attorney") on behalf of the Lenders, as contemplated in
article 2692 of the Civil Code of Quebec, in order to obtain, receive and hold
for, in the name of and for the benefit of the Lenders, all hypothecs, rights
and security interests created by the Quebec Security Documents as security for
the payment of the Obligations and the Guaranteed Obligations and the
performance of the Obligations and the Guaranteed Obligations under the Loan
Documents, including the Quebec Security Documents.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lender Parties (other
than any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or Section 3.02 or, in the case of the Initial Extension of Credit, Section
3.03, (ii) change the number of Lenders or the definition of Required Lenders or
the percentage of (w) the Commitments, (x) the aggregate unpaid principal amount
of the Advances, (y) the aggregate Available Amount of outstanding Letters of
Credit that, in each case, shall be required for the Lenders or any of them to
take any action hereunder or (z) the aggregate Face Amount of outstanding
Bankers' Acceptances or Notional Bankers' Acceptances that, in each case, shall
be required for the Lenders or any of them to take any action hereunder, (iii)
reduce or limit the obligations of any Guarantor under Section 1 of the Guaranty
issued by it or release such Guarantor or otherwise limit such Guarantor's
liability with respect to the Obligations owing to the Agents and the Lender
Parties, (iv) release all or substantially all of the Collateral in any
transaction or series of related transactions or permit the creation,
incurrence, assumption or existence of any Lien on all or substantially all of
the Collateral in any transaction or series of related transactions to secure
any Obligations other than Obligations owing to the Secured Parties under the
Loan Documents, or (v) amend Section 2.14 or this Section 8.01 and (b) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and each Lender (other than any Lender that is, at such time, a
Defaulting Lender) that has a
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Commitment under, or is owed any amounts under or in respect of, the Term B
Facility or the Revolving Credit Facility if such Lender is directly and
adversely affected by such amendment, waiver or consent: (i) increase the
Commitments of such Lender; (ii) reduce the principal of, or stated rate of
interest on, the Notes held by such Lender or any fees or other amounts stated
to be payable hereunder to such Lender; or (iii) postpone or forgive any date
scheduled for any payment of principal of, or interest on, the Notes pursuant to
Section 2.04 or 2.08 or any date fixed for any payment of fees hereunder or any
Guaranteed Obligations payable under the US Subsidiary Guaranty or the Canadian
Subsidiary Guaranty; provided, further, that no amendment, waiver or consent
shall, unless in writing and signed by each Canadian Lender or each Issuing
Bank, as the case may be, in addition to the Lenders required above to take such
action, affect the rights or obligations of the Canadian Lenders or of the
Issuing Banks, as the case may be, under this Agreement; and provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by an
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of such Agent under this Agreement or the other Loan Documents;
provided, further, that, except as expressly provided in clauses (b)(i), (ii)
and (iii) above, no amendment, waiver or consent shall, unless in writing and
signed by the Required Revolving Credit Lenders, adversely affect the rights of
the Revolving Credit Lenders and there shall be no amendment to the definition
of Required Revolving Credit Lenders without the consent of all of the Revolving
Credit Lenders; provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Required Term B Lenders, adversely affect
the rights of the Term B Lenders and there shall be no amendment to the
definition of "Required Term B Lender" without the consent of all of the Term B
Lenders.
SECTION 8.02. Notices, Etc. (a) All notices and other communications
provided for hereunder shall be either (x) in writing (including telecopier or
telegraphic communication) and mailed, telecopied, telegraphed or delivered or
(y) as and to the extent set forth in Section 8.02(b) and in the proviso to this
Section 8.02(a), in an electronic medium and delivered as set forth in Section
8.02(b), if to the US Borrower, at its address at 55 Shuman Boulevard, Suite
600, Naperville, IL 60563, Attention: Chief Financial Officer (Fax: (630)
848-3149; E-mail: doug_carty@lpsg.com); if to Laidlaw Transit, at its address at
3221 North Service Road, Burlington, ON L7R 3Y8, Attention: Finance Director
(Fax: (905) 336-8177; E-mail: tony_watson@lpsg.com); if to Greyhound Canada, at
its address at 877 Greyhound Way SW, Calgary, AB T3C 3V8, Attention:
Vice-President, Finance (Fax: (403) 260-0839; E-mail: ron.love@greyhound.ca); if
to any Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Administrative Agent, at its address at Two Penns Way, New
Castle, Delaware 19720, Attention: Bank Loan Syndications Department (Fax: (302)
894-6120); or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the US Borrower and the
Administrative Agent; provided that materials required to be delivered pursuant
to Section 5.03(a), (b), (c), (d) and (g) shall be delivered to the
Administrative Agent as specified in Section 8.02(b) or as otherwise specified
to the US Borrower by the Administrative Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or e-mailed, be
effective when deposited in the mails, telecopied, delivered to the telegraph
company or confirmed by e-mail, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II, III or VII
shall
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not be effective until received by the Administrative Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
(b) So long as CNAI is the Administrative Agent,
materials required to be delivered pursuant to Section 5.03(a), (b), (c), (d)
and (g) shall be delivered to the Administrative Agent in an electronic medium
in a format acceptable to the Administrative Agent and the Lenders by e-mail at
oploanswebadmin@citigroup.com. The Borrowers agree that the Administrative Agent
may make such materials, as well as any other written information, documents,
instruments and other material relating to any Borrower, any of its Subsidiaries
or any other materials or matters relating to this Agreement, the Notes or any
of the transactions contemplated hereby (collectively, the "COMMUNICATIONS")
available to the Lenders by posting such notices on "e-Disclosure" (the
"PLATFORM"), the Administrative Agent's internet delivery system that is part of
Fixed Income Direct, Global Fixed Income's primary web portal. Although the
primary web portal is secured with a dual firewall and a User ID/Password
Authorization System and the Platform is secured through a single user per deal
authorization method whereby each user may access the Platform only on a
deal-by-deal basis, each Borrower acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there
are confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the
Administrative Agent nor any of its Affiliates warrants the accuracy, adequacy
or completeness of the Communications or the Platform and each expressly
disclaims liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory, including,
without limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other
code defects, is made by the Administrative Agent or any of its Affiliates in
connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in
the next sentence) (a "NOTICE") specifying that any Communications have been
posted to the Platform shall constitute effective delivery of such information,
documents or other materials to such Lender for purposes of this Agreement;
provided that, if requested by any Lender, the Administrative Agent shall
deliver a copy of the Communications to such Lender by e-mail or telecopier.
Each Lender agrees (i) to notify the Administrative Agent in writing of such
Lender's e-mail address to which a Notice may be sent by electronic transmission
(including by electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time thereafter to ensure
that the Administrative Agent has on record an effective e-mail address for such
Lender) and (ii) that any Notice may be sent to such e-mail address.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
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SECTION 8.04. Costs and Expenses. (a) Each Borrower agrees to pay on
demand (i) all reasonable costs and expenses of each Agent in connection with
the preparation, execution, delivery, administration, modification and amendment
of, or any consent or waiver under, the Loan Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of a single outside counsel and other local counsel for the
Administrative Agent with respect thereto, with respect to advising the
Administrative Agent as to its rights and responsibilities, or the perfection,
protection or preservation of rights or interests, under the Loan Documents,
with respect to negotiations with any Loan Party or with other creditors of any
Loan Party or any of its Subsidiaries arising out of any Default or any events
or circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally and any
proceeding ancillary thereto) and (ii) all costs and expenses of each Agent and
each Lender Party in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, or any bankruptcy, insolvency or
other similar proceeding affecting creditors' rights generally (including,
without limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender Party with respect thereto).
(b) Each Borrower agrees to indemnify, defend and save
and hold harmless each Agent, each Lender Party and each of their Affiliates and
their respective officers, directors, employees, agents, advisors, trustees and
representatives (each, an "INDEMNIFIED PARTY") from and against, and shall pay
on demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and disbursements of counsel),
joint or several, that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(i) the Facilities, the actual or proposed use of the proceeds of the Advances,
the Bankers' Acceptances or the Letters of Credit, the Transaction Documents or
any of the transactions contemplated thereby or any similar transaction or (ii)
the actual or alleged presence of Hazardous Materials on any property of any
Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the Transaction is consummated. Each Borrower also agrees not to
assert any claim against any Agent, any Lender Party or any of their Affiliates,
or any of their respective officers, directors, employees, agents, advisors,
trustees and representatives, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
Facilities, the actual or proposed use of the proceeds of the Advances, the
Bankers' Acceptances or the Letters of Credit, the Transaction Documents or any
of the transactions contemplated by the Transaction Documents.
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(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by any Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.07, 2.10(b)(i) or
2.11(d), acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason or if any Borrower fails to make any payment or
prepayment of an Advance for which a notice of prepayment has been given or that
is otherwise required to be made, whether pursuant to Section 2.04, 2.07 or 6.01
or otherwise, such Borrower shall, upon demand by such Lender Party (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other
agreement of any Loan Party hereunder or under any other Loan Document, the
agreements and obligations of the Borrowers contained in Sections 2.11 and 2.13
and this Section 8.04 shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under any of the other Loan
Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of any Borrower against
any and all of the Obligations of any Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such Obligations may be unmatured; provided, however, that no deposit
or other indebtedness owed to any Canadian Borrower may be set off or applied
against any Obligation of any U.S. Loan Party. Each Agent and each Lender Party
agrees promptly to notify such Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
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SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by each Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender Party that
such Initial Lender Party has executed it and thereafter shall be binding upon
and inure to the benefit of each Borrower, each Agent and each Lender Party and
their respective successors and assigns, except that the Borrowers shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of any or all Facilities, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 and shall
be an integral multiple of $1,000,000 in excess thereof (or, in each case, such
lesser amount as shall be approved by the Administrative Agent and, so long as
no Default shall have occurred and be continuing at the time of effectiveness of
such assignment, the US Borrower) under each Facility for which a Commitment is
being assigned, (iii) each such assignment shall be to an Eligible Assignee,
(iv) no such assignments shall be permitted without the consent of the
Administrative Agent until the Administrative Agent shall have notified the
Lender Parties that syndication of the Commitments hereunder has been completed,
(v) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,500 and (vi) each such
Eligible Assignee shall comply with the requirements of Section 2.13(e), if
applicable.
(b) Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (i) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
or Issuing Bank, as the case may be, hereunder and (ii) the Lender or Issuing
Bank assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.11, 2.13 and 8.04
to the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and
Acceptance, each Lender Party assignor thereunder and each assignee thereunder
confirm to and agree with each other and the other parties thereto and hereto as
follows: (i) other than as provided in such Assignment and
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Acceptance, such assigning Lender Party makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; (ii) such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under any Loan Document
or any other instrument or document furnished pursuant thereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon any Agent, such assigning
Lender Party or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose
(but only for this purpose) as the agent of the Borrowers, shall maintain at its
address referred to in Section 8.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each Facility of,
and principal amount of the Advances owing under each Facility to, each Lender
Party from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrowers, the Agents and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender Party and an assignee, together with any Note or
Notes subject to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the US Borrower and each other Agent. In the case of any assignment
by a Lender, within five Business Days after its receipt of such notice, the
applicable Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes (which shall
be marked "Amended and Restated") an amended and restated Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it under
each Facility pursuant to such Assignment and Acceptance and, if any assigning
Lender has retained a Commitment hereunder under such Facility, an amended and
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restated Note to the order of such assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such amended and restated Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or A-2 hereto, as the case may be.
(f) Each Issuing Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided, however, that
(i) except in the case of an assignment to a Person that immediately prior to
such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the Letter of Credit
Commitment of the assigning Issuing Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 and shall
be in an integral multiple of $1,000,000 in excess thereof, (ii) each such
assignment shall be to an Eligible Assignee and (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with a processing and recordation fee of $3,500.
(g) Each Lender Party may sell participations to one or
more Persons (other than any Loan Party or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Advances owing to
it and the Note or Notes (if any) held by it); provided, however, that (i) such
Lender Party's obligations under this Agreement (including, without limitation,
its Commitments) shall remain unchanged, (ii) such Lender Party shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrowers, the Agents and the other
Lender Parties shall continue to deal solely and directly with such Lender Party
in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 8.07, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrowers furnished to such
Lender Party by or on behalf of any Borrower; provided, however, that, prior to
any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any Confidential
Information received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under
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this Agreement (including, without limitation, the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve System.
(j) Notwithstanding anything to the contrary contained
herein, any Lender that is a fund that invests in bank loans may, without the
consent of the Borrower or the Administrative Agent, create a security interest
in all or any portion of the Advances owing to it and the Note or Notes held by
it to the trustee for holders of obligations owed, or securities issued, by such
fund as security for such obligations or securities, provided, that unless and
until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 8.07, (i) no such pledge shall release the pledging
Lender from any of its obligations under the Loan Documents and (ii) such
trustee shall not be entitled to exercise any of the rights of a Lender under
the Loan Documents even though such trustee may have acquired ownership rights
with respect to the pledged interest through foreclosure or otherwise.
(k) Notwithstanding anything to the contrary contained
herein, any Lender Party (a "GRANTING LENDER") may grant to a special purpose
funding vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the US Borrower (an "SPC") the option to
provide all or any part of any Advance that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided, that (i) nothing
herein shall constitute a commitment by any SPC to fund any Advance, and (ii) if
an SPC elects not to exercise such option or otherwise fails to make all or any
part of such Advance, the Granting Lender shall be obligated to make such
Advance pursuant to the terms hereof. The making of an Advance by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same
extent, and as if, such Advance were made by such Granting Lender. Each party
hereto hereby agrees that (i) no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement for which a Lender Party would
be liable, (ii) no SPC shall be entitled to the benefits of Sections 2.11 and
2.13 (or any other increased costs protection provision) and (iii) the Granting
Bank shall for all purposes, including, without limitation, the approval of any
amendment or waiver of any provision of any Loan Document, remain the Lender
Party of record hereunder. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior Debt of any SPC, it will not
institute against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may (i) with
notice to, but without prior consent of, the Borrower and the Administrative
Agent and with the payment of a processing fee of $500, assign all or any
portion of its interest in any Advance to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of
Advances to any rating agency, commercial paper dealer or provider of any surety
or guarantee or credit or liquidity enhancement to such SPC. This subsection (k)
may not be amended without the prior written consent of each Granting Lender,
all or any part of whose Advances are being funded by the SPC at the time of
such amendment.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which
149
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery by telecopier of
an executed counterpart of a signature page to this Agreement shall be effective
as delivery of an original executed counterpart of this Agreement.
SECTION 8.09. No Liability of the Issuing Banks. Each Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither any
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that any
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to such Borrower, to the extent of any direct, but not
consequential, damages suffered by such Borrower that such Borrower proves were
caused by (i) such Issuing Bank's willful misconduct or gross negligence as
determined in a final, non-appealable judgment by a court of competent
jurisdiction in determining whether documents presented under any Letter of
Credit comply with the terms of the Letter of Credit or (ii) such Issuing Bank's
willful failure to make lawful payment under a Letter of Credit after the
presentation to it of a draft and certificates strictly complying with the terms
and conditions of the Letter of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Bank may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary.
SECTION 8.10. Confidentiality. (a) Subject to paragraph (b) below, each
of the Agents and the Lender Parties hereby agrees that it will not disclose to
any person or entity any Confidential Information, except that each of the
Agents and the Lender Parties may disclose Confidential Information (i) to its
and its Affiliates' officers, directors, employees, agents, accountants,
attorneys, and other advisors (collectively "LENDER REPRESENTATIVES") who have a
need to know such Confidential Information for the purpose of assisting in the
negotiation, completion and administration of the Facilities, (ii) to actual or
potential Lenders who have agreed to hold the Confidential Information in
confidence on substantially the same terms as provided herein, (iii) to any
direct or indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of any Borrower and
(iv) to the extent any portion of such Confidential Information (A) is or
becomes generally available to the public on a non-confidential basis other than
as a result of a breach of this Section 8.10 by any of the Agents or the Lender
Parties or any of the Lender Representatives, (B) is or becomes available to any
of the Agents or the Lender Parties or any of the Lender Representatives on a
non-confidential basis from a source other than a Borrower or (C) is required to
be disclosed by law, regulation or judicial order or is requested by any
regulatory body with jurisdiction over any of the Agents or the Lender Parties
or any of the Lender Representatives.
150
(b) Notwithstanding anything herein to the contrary, the
Borrowers, the Agents, the Lender Parties and the Lender Representatives may
disclose to any and all Persons, without limitation of any kind, the U.S. tax
treatment and tax structure of the transactions and all materials of any kind
(including opinions or other tax analyses) that are provided to any of the
foregoing parties relating to such U.S. tax treatment and tax structure.
SECTION 8.11. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the US Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. The
Canadian Borrowers hereby agree that service of process in any such action or
proceeding brought in any such New York State court or in such federal court may
be made upon the US Borrower at its address for notices as provided for in
Section 8.02 and the Canadian Borrower hereby irrevocably appoints the Borrower
its authorized agent to accept such service of process, and the US Borrower
hereby accepts such appointment, and the Borrowers agree that the failure of the
US Borrower to give any notice of any such service shall not impair or affect
the validity of such service or of any judgment rendered in any action or
proceeding based thereon. The Canadian Borrowers hereby further irrevocably
consents to the service of process in any action or proceeding to the Canadian
Borrowers at their respective addresses specified in Section 8.02. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
Federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
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SECTION 8.13. Judgment Currency. (a) To the extent permitted by
applicable law, if for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder in US Dollars into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be determined in accordance with Section
1.04 of this Agreement on the Business Day preceding that on which final
judgment is given.
(b) To the extent permitted by applicable law, if for the
purposes of obtaining judgment in any court it is necessary to convert a sum due
hereunder in a foreign currency into US Dollars, the parties agree to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be determined in accordance with Section 1.04 of this Agreement on the
Business Day preceding that on which final judgment is given.
(c) To the extent permitted by applicable law, the
obligation of each Borrower in respect of any sum due in US Dollars from it to
any Lender Party or the Administrative Agent hereunder shall, notwithstanding
any judgment in a currency other than US Dollars, be discharged only to the
extent that on the Business Day following receipt by such Lender Party or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency, such Lender Party or the Administrative Agent (as the case
may be) may in accordance with normal banking procedures purchase US Dollars
with such other currency; if the US Dollars so purchased are less than such sum
due to such Lender Party or the Administrative Agent (as the case may be) in US
Dollars, each Borrower agrees, to the extent permitted by applicable law, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender Party or the Administrative Agent (as the case may be) against such loss,
and if the US Dollars so purchased exceed such sum due to any Lender Party or
the Administrative Agent (as the case may be) in US Dollars, such Lender Party
or the Administrative Agent (as the case may be) agrees to remit to each such
Borrower such excess.
SECTION 8.14. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
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SECTION 8.15. Waiver of Jury Trial. Each of the Borrowers, the Agents
and the Lender Parties irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the
Advances, the Letters of Credit or the actions of any Agent or any Lender Party
in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
LAIDLAW INVESTMENTS LTD.
By ______________________________
Title:
LAIDLAW TRANSIT LTD.
By ______________________________
Title:
GREYHOUND CANADA
TRANSPORTATION CORP.
By ______________________________
Title:
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as
Collateral Agent
By ______________________________
Title:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch,
as Syndication Agent
By ______________________________
Title:
By ______________________________
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Co-Documentation
Agent
By:______________________________
Title:
INITIAL LENDERS
CITICORP NORTH AMERICA, INC.
By ______________________________
Title:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands Branch
By ______________________________
Title:
By ______________________________
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By ______________________________
Title:
INITIAL REVOLVING ISSUING BANK
CITIBANK, N.A.
By ______________________________
Title:
INITIAL CANADIAN ISSUING BANK
CITIBANK CANADA
as Initial Canadian Issuing Bank
By ______________________________
Title:
ADDITIONAL ISSUING BANK
CITIBANK, N.A.,
as Additional Issuing Bank
By ______________________________
Title:
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
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CANADIAN ADDITIONAL
REVOLVING LETTER OF REVOLVING LETTER OF DOMESTIC EURODOLLAR
TERM B CREDIT CREDIT CREDIT CREDIT LENDING LENDING
NAME OF INITIAL LENDER COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT OFFICE OFFICE
==============================================================================================================
Citicorp North America, Inc.
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Credit Suisse First Boston
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General Electric Capital
Corporation
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Citibank Canada
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Credit Suisse First Boston,
acting through its Cayman
Islands Branch
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