EXHIBIT 10.1
EXECUTION COPY
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CREDIT AGREEMENT
Among
CSA ACQUISITION CORP.,
COOPER-STANDARD AUTOMOTIVE INC.,
COOPER-STANDARD AUTOMOTIVE CANADA LIMITED,
VARIOUS LENDING INSTITUTIONS,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent,
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent,
and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
UBS SECURITIES LLC, and THE BANK OF NOVA SCOTIA,
as Co-Documentation Agents
Dated as of December 23, 2004
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DEUTSCHE BANK SECURITIES INC.,
and
LEHMAN BROTHERS INC.,
as Joint Lead Arrangers and Book Runners
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CREDIT AGREEMENT, dated as of December 23, 2004, among
CSA ACQUISITION
CORP., a Delaware corporation ("Holdings"), COOPER-STANDARD
AUTOMOTIVE INC., an
Ohio corporation (the "U.S. Borrower"), COOPER-STANDARD AUTOMOTIVE
CANADA
LIMITED, a corporation organized under the laws of Ontario (the
"Canadian
Borrower" and, together with the U.S. Borrower, the "Borrowers"),
the Lenders
from time to time party hereto, the Administrative Agent, LEHMAN
COMMERCIAL
PAPER INC., as Syndication Agent (in such capacity, the
"Syndication Agent",
GOLDMAN SACHS CREDIT PARTNERS, L.P., UBS SECURITIES LLC and THE
BANK OF NOVA
SCOTIA, as Co-Documentation Agents (in such capacity, each, a
"Co-Documentation
Agent" and, collectively, the "Co-Documentation Agents"), and
DEUTSCHE BANK
SECURITIES INC. and LEHMAN BROTHERS INC., as Joint Lead Arrangers
and Book
Runners (in such capacity, each a "Joint Lead Arranger" and,
collectively, the
"Joint Lead Arrangers"). Unless otherwise defined herein, all
capitalized terms
used herein and defined in Section 11 are used herein as so
defined.
WITNESSETH:
WHEREAS, subject to and upon the terms and conditions
herein set
forth, the Lenders are willing to make available to the Borrowers
on a several
(but not joint) basis the credit facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Definitions. As used herein, the following
terms shall have
the meanings herein specified unless the context otherwise
requires. Defined
terms in this Agreement shall include in the singular number the
plural and in
the plural the singular:
"Account Party" shall mean (x) in the case of each Dollar
Facility
Letter of Credit, the U.S. Borrower and (y) in the case of each
Multicurrency
Facility Letter of Credit, the Canadian Borrower.
"Acquisition" shall mean, collectively, the acquisition
by Holdings
from the Sellers of all Equity Interests in the U.S. Borrower, its
Subsidiaries
and certain of its Affiliates, all as contemplated by the
Acquisition Agreement
and the other Acquisition Documents.
"Acquisition Agreement" shall mean the Stock Purchase
Agreement, dated
as of September 16, 2004, among Holdings and the Seller (including
the schedules
and exhibits thereto), as amended by the First Amendment, dated as
of December
3, 2004, and as the same may be further amended, modified and/or
supplemented
from time to time in accordance with the terms hereof and thereof.
"Acquisition Documents" shall mean the Acquisition
Agreement and all
other material documents, instruments and agreements entered into
in connection
with the Acquisition and all schedules, exhibits and annexes to
each of the
foregoing, in each case as the same may be amended, modified and/or
supplemented
from time to time in accordance with the terms hereof and thereof.
"Additional Collateral" shall mean all property (whether
real or
personal) in which security interests are granted (or have been
purported to be
granted) (and continue to be in effect at the time of
determination) pursuant to
Sections 9.12 and 9.13.
"Additional Security Documents" shall have the meaning
provided in
Section 9.13.
"Additional Senior Subordinated Notes" means any senior
subordinated
notes issued by the U.S. Borrower after the Initial Borrowing Date,
and the
Indebtedness represented thereby, provided that (a) such senior
subordinated
notes (i) shall not provide for guarantors, obligors or security in
addition to
those which apply to the Senior Subordinated Notes, (ii) shall not
have a
maturity date that is earlier than the date occurring 180 days
after the Tranche
C Term Loan Maturity Date, or provide for any amortization, sinking
fund or
other scheduled payments (other than regularly scheduled interest
payments)
prior to the date occurring 180 days after the Tranche C Term Loan
Maturity
Date, and (iii) shall be subordinated to the Obligations on terms
not less
favorable to the Lenders than the terms in respect of the Senior
Subordinated
Notes and (b) all other terms (excluding interest rates and
redemption premiums)
of such senior subordinated notes shall not be materially less
favorable to the
Lenders than those existing with respect to the Senior Subordinated
Notes, in
each case as the same may be amended, modified and/or supplemented
from time to
time in accordance with the terms hereof and thereof. As used
herein, the term
"Additional Senior Subordinated Notes" shall include any Exchange
Additional
Senior Subordinated Notes issued pursuant to the respective
Additional Senior
Subordinated Notes Indenture in exchange for theretofore
outstanding Additional
Senior Subordinated Notes as contemplated by the definition of
Exchange Senior
Notes.
"Additional Senior Subordinated Notes Documents" shall
mean the
Additional Senior Subordinated Notes, each Additional Senior
Subordinated Notes
Indenture and the other documents and instruments entered into in
connection
with an issuance of Additional Senior Subordinated Notes, in each
case as the
same may be amended, modified and/or supplemented from time to time
in
accordance with the terms hereof and thereof.
"Additional Senior Subordinated Notes Indenture" shall
mean any
indenture pursuant to which Additional Senior Subordinated Notes
may be issued,
as the same may be amended, modified and/or supplemented from time
to time in
accordance with the terms hereof and thereof.
"Adjustable Applicable Margins" shall have the meaning
provided in the
definition of Applicable Margin.
"Administrative Agent" shall mean Deutsche Bank Trust
Company Americas
and shall include any successor to the Administrative Agent
appointed pursuant
to Section 12.10; provided that as used herein and in the other
Credit
Documents, for purposes of actions to be taken hereunder, notices
to be received
or given and payments to be received or made in respect of Tranche
A Term Loans,
Canadian Dollar Denominated Incremental Term Loans and all
borrowings under, and
issuances of Letters of Credit pursuant to, the Multicurrency
Facility Revolving
Loan Commitment, the term "Administrative Agent" shall mean the
Canadian
Sub-Agent.
"Affiliate" means, with respect to a specified Person,
any other
Person that directly, or indirectly through one or more
intermediaries, Controls
or is Controlled by or is under common Control with the Person
specified.
Neither any Agent nor any Lender shall be deemed to be an Affiliate
of Holdings
or any of its Subsidiaries solely by virtue of being a party to
this Agreement.
"Agent" shall mean the Administrative Agent, the
Collateral Agent, the
Syndication Agent and each Co-Documentation Agent and shall include
any
successor to any such Person appointed pursuant to Section 12.10.
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"Aggregate Dollar Facility RL Exposure" shall mean, at
any time, the
sum of (i) the aggregate principal amount of all Dollar Facility
Revolving Loans
then outstanding, (ii) the aggregate amount of all Dollar Facility
Letter of
Credit Outstandings at such time and (iii) the aggregate principal
amount of all
Swingline Loans then outstanding.
"Aggregate Multicurrency Facility RL Exposure" shall
mean, at any
time, the sum of (i) the aggregate principal amount, or Face
Amount, as
applicable, of all Multicurrency Facility Revolving Loans
outstanding at such
time (for this purpose, using the U.S. Dollar Equivalent of the
principal amount
or Face Amount, as the case may be, of any Canadian Dollar
Denominated Revolving
Loans), and (ii) the aggregate amount of all Multicurrency Facility
Letter of
Credit Outstandings (using the U.S. Dollar Equivalent of all
amounts expressed
in Canadian Dollars) at such time.
"Agreement" shall mean this Credit Agreement, as
modified,
supplemented, amended, restated (including any amendment and
restatement
hereof), extended, renewed, refinanced or replaced from time to
time.
"Applicable Currency" shall mean (i) with respect to any
Loan, the
Available Currency in which such Loan was incurred and (ii) with
respect to any
Letter of Credit, the Available Currency in which such Letter of
Credit was
denominated; provided that in the event Loans maintained in, or
Unpaid Drawings
owed in, Canadian Dollars are converted into Loans maintained, or
Unpaid
Drawings owing, as the case may be, in U.S. Dollars under the
circumstances
contemplated by Section 2.14, the Applicable Currency with respect
to such Loans
and Unpaid Drawings shall be U.S. Dollars.
"Applicable Increased Term Loan Rate" shall mean, at any
time, (A)
with respect to any newly-created Tranche of Incremental Term Loans
(other than
Canadian Dollar Denominated Incremental Term Loans), the rate per
annum
(expressed as a percentage) determined by the Administrative Agent
(and notified
to the Lenders) as the rate per annum required to equalize the
interest rates
applicable to each then existing Tranche of Term Loans (other than
Tranche A
Term Loans and Canadian Dollar Denominated Incremental Term Loans)
and such
Tranche of Incremental Term Loans and (B) with respect to any
newly-created
Tranche of Canadian Dollar Denominated Incremental Term Loans, the
rate per
annum (expressed as a percentage) determined by the Administrative
Agent (and
notified to the Lenders) as the rate per annum required to equalize
the interest
rates applicable to the Tranche A Term Loans and each other then
existing
Tranche of Canadian Dollar Denominated Incremental Term Loans, on
the one hand,
and such Tranche of Canadian Dollar Denominated Incremental Term
Loans, on the
other hand. Each determination of the "Applicable Increased Term
Loan Rate"
shall be made by the Administrative Agent taking into account the
relevant
factors outlined in subclause (II) of the proviso to clause (viii)
of Section
2.15(a) and shall be conclusive and binding on all Lenders absent
manifest
error.
"Applicable Margin" shall mean initially a percentage per
annum equal
to (i) in the case of (x) Tranche A Term Loans maintained as (A)
Canadian Prime
Rate Loans, 1.50% and (B) Bankers' Acceptance Loans, 2.50% (or, on
and after the
date of the most recent incurrence of any Tranche of Canadian
Dollar Denominated
Incremental Term Loans bearing interest at the Applicable Increased
Term Loan
Rate, the Applicable Increased Term Loan Rate for such Tranche of
Canadian
Dollar Denominated Incremental Term Loans) and (y) Tranche B Term
Loans and
Tranche C Term Loans maintained as (A) Base Rate Loans, 1.00% and
(B) Eurodollar
Loans, 2.00% (or, on and after the date of the most recent
incurrence of any
Tranche of Incremental Term Loans (other than
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Canadian Dollar Denominated Incremental Term Loans) bearing
interest at the
Applicable Increased Term Loan Rate, the Applicable Increased Term
Loan Rate for
such Tranche of Incremental Term Loans); (ii) in the case of
Revolving Loans
maintained as (A) Base Rate Loans or Canadian Prime Rate Loans,
1.50% and (B)
Eurodollar Loans or Banker's Acceptance Loans, 2.50%; (iii) in the
case of
Swingline Loans, 1.50%; and (iv) in the case of any Type of
Incremental Term
Loan of a given Tranche, that percentage per annum set forth in, or
calculated
in accordance with, Section 2.15 and the relevant Incremental Term
Loan
Commitment Agreement (or (I) in the case of Canadian Dollar
Denominated
Incremental Term Loans of a given Tranche, on and after the date of
the most
recent incurrence of any Tranche of Canadian Dollar Denominated
Incremental Term
Loans bearing interest at the Applicable Increased Term Loan Rate,
the
Applicable Increased Term Loan Rate for such Tranche of Canadian
Dollar
Denominated Incremental Term Loans and (II) in the case of
Incremental Term
Loans of a given Tranche (other than Canadian Dollar Denominated
Incremental
Term Loans), on and after the date of the most recent incurrence of
any Tranche
of Incremental Term Loans (other than Canadian Dollar Denominated
Incremental
Term Loans) bearing interest at the Applicable Increased Term Loan
Rate, the
Applicable Increased Term Loan Rate for such Tranche of Incremental
Term Loans).
From and after each day of delivery on or after the Effective Date
of any
certificate delivered in accordance with the first sentence of the
following
paragraph indicating an entitlement to a different margin for a
given eligible
Tranche of Loans (other than Term Loans) from that described in the
immediately
preceding sentence (each, a "Start Date") to and including the
applicable End
Date described below, the Applicable Margins for such eligible
Tranche of Loans
(hereinafter, the "Adjustable Applicable Margins") shall be those
set forth
below opposite the Leverage Ratio indicated to have been achieved
in any
certificate delivered in accordance with the following sentence:
Multicurrency Facility
Multicurrency Facility Revolving
Loan, Dollar
Revolving Loan and Dollar Facility
Revolving Loan
Facility Revolving Loan and
Swingline Loan Base
Eurodollar Margin and Rate and
Canadian Prime
Leverage Ratio Drawing Fee Rate
Margin
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Less than 3.50 to 1.00 but
equal to or greater than
3.00 to 1.00 2.25%
1.25%
Less than 3.00 to 1.00 2.00%
1.00%
The Leverage Ratio used in a determination of the
Adjustable
Applicable Margins for a given eligible Tranche of Loans shall be
determined
based on the delivery of a certificate of the U.S. Borrower by an
Authorized
Officer to the Administrative Agent (with a copy to be sent by the
Administrative Agent to each Lender), within 45 days of the last
day of any
Fiscal Quarter (each such certificate, a "Quarterly Pricing
Certificate"), which
certificate shall set forth the calculation of the Leverage Ratio
as at the last
day of the period of four consecutive Fiscal Quarters ended
immediately prior to
the relevant Start Date (but determined on a Pro Forma Basis solely
to give
effect to all Permitted Acquisitions, Asset Dispositions,
Incremental Extensions
of Credit and issuances of Additional Senior Subordinated Notes
consummated on
or prior to the date of delivery of such certificate and any
Indebtedness
incurred, assumed or permanently repaid in connection therewith)
and the
Adjustable Applicable Margins for such eligible Tranche of Loans
which shall be
thereafter applicable (until same are changed or cease to apply in
accordance
with the following
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sentences). The Adjustable Applicable Margins for each eligible
Tranche of Loans
as so determined shall apply, except as set forth in the succeeding
sentence,
from the relevant Start Date to the earlier of (x) the date on
which the next
certificate is delivered to the Administrative Agent or (y) the
date which is 45
days following the last day of the period of four consecutive
Fiscal Quarters in
which the previous Start Date occurred (such earlier date, the "End
Date"), at
which time, if no certificate has been delivered to the
Administrative Agent
indicating an entitlement to new Adjustable Applicable Margins for
the
respective eligible Tranche of Loans (and thus commencing a new
Start Date), the
Adjustable Applicable Margins for such Tranche of Loans shall be
those set forth
in the first sentence of this definition (such Adjustable
Applicable Margins as
so determined, the "Highest Adjustable Applicable Margins").
Notwithstanding
anything to the contrary contained above in this definition, the
Adjustable
Applicable Margins shall be the Highest Adjustable Applicable
Margins at all
times (x) during which there shall exist any Event of Default under
clauses (a),
(b), (h), (i) or (j) of Section 11 and (y) prior to the date of
delivery of the
financial statements pursuant to Section 9.01(c) for the 2nd Fiscal
Quarter of
Fiscal Year 2005.
"Applicable Prepayment Percentage" shall mean, at any
time, 50%;
provided that if at any time the Leverage Ratio is (i) less than
3.25:1.00 (as
set forth in an officer's certificate delivered pursuant to Section
9.01(c) for
the Fiscal Quarter or Fiscal Year then last ended), the Applicable
Prepayment
Percentage shall instead be 25% and (ii) less than 2.50:1.00 (as
set forth in an
officer's certificate delivered pursuant to Section 9.01(c) for the
Fiscal
Quarter or Fiscal Year then last ended), the Applicable Prepayment
Percentage
shall instead be 0%.
"Asset Disposition" means any disposition of assets of
the U.S.
Borrower or any of its Subsidiaries outside the ordinary course of
business that
is permitted under Section 10.05.
"Asset Sale" shall mean any sale, transfer or other
disposition by
Holdings or any of its Subsidiaries to any Person other than the
U.S. Borrower
or any Wholly-Owned Subsidiary of the U.S. Borrower of any asset or
property
(including, without limitation, any capital stock or other
securities of, or
other Equity Interests in, another Person) of Holdings or such
Subsidiary other
than the disposition described in clauses (a) through (g) and
clauses (i) and
(j) of Section 10.05.
"Assignment and Assumption Agreement" shall mean the
Assignment and
Assumption Agreement substantially in the form of Exhibit K
(appropriately
completed).
"Authorized Officer" shall mean, with respect to (i)
delivering
Notices of Borrowing, Notices of Conversion/Continuation, Letter of
Credit
Requests and similar notices, any person or persons that has or
have been
authorized by the board of directors of either Borrower to deliver
such notices
pursuant to this Agreement and that has or have appropriate
signature cards on
file with the Administrative Agent, the Swingline Lender and the
respective
Issuing Lender; (ii) delivering financial information and officer's
certificates
pursuant to this Agreement, the chief financial officer, principal
accounting
officer, any treasurer, any controller or (except in the case of
financial
matters) the general counsel of Holdings or the U.S. Borrower; and
(iii) any
other matter in connection with this Agreement or any other Credit
Document, any
officer (or a person or persons so designated by any two officers)
of Holdings
or the U.S. Borrower.
"Available Currency" shall mean (i) with respect to
Tranche A Term
Loans, Canadian Dollars, (ii) with respect to Tranche B Term Loans,
Tranche C
Term Loans, U.S. Borrower Incremental Term Loans, Dollar Facility
Revolving
Loans and Swingline Loans and Dollar Facility
-5-
Letters of Credit, U.S. Dollars, and (iii) with respect to
Multicurrency
Facility Revolving Loans, Multicurrency Facility Letters of Credit
and Canadian
Borrower Incremental Term Loans, U.S. Dollars and Canadian Dollars.
"B/A Discount Proceeds" shall mean, in respect of any
Bankers'
Acceptance or Draft to be purchased by a Canadian Lender on any
date pursuant to
Section 2.01(a), (d) or (e), as the case may be, and Schedule III
hereto, the
difference between (i) the result (rounded to the nearest whole
Canadian cent,
and with one-half of one Canadian cent being rounded up) calculated
on such day
by dividing the aggregate Face Amount of such Bankers' Acceptance
or Draft by
the sum of one plus the product of (x) the Reference Discount Rate
(expressed as
a decimal) applicable to such Bankers' Acceptance or Draft
multiplied by (y) a
fraction, the numerator of which is the number of days in the term
of such
Bankers' Acceptance or Draft and the denominator of which is 365;
and (ii) the
aggregate applicable Drawing Fee with such product being rounded up
or down to
the fifth decimal place and .000005 being rounded up.
"B/A Equivalent Note" shall have the meaning provided in
Schedule III
hereto.
"B/A Instruments" means, collectively, Bankers'
Acceptances, Drafts
and B/A Equivalent Notes, and, in the singular, any one of them.
"B/A Lender" shall mean any Canadian Lender which is not
a Non-B/A
Lender.
"Bankers' Acceptance" means a Draft drawn by the Canadian
Borrower and
accepted by a Canadian Lender pursuant to Section 2.01(a), (d) or
(e), as the
case may be, and Schedule III hereto.
"Bankers' Acceptance Loans" shall mean (i) the creation
of Bankers'
Acceptances or (ii) the creation and purchase of completed Drafts
and the
exchange of such Drafts for B/A Equivalent Notes, in each case as
contemplated
in Sections 2.01(a), (d) and (e) and Schedule III hereto.
"Bankruptcy Code" shall mean Title 11 of the United
States Code
entitled "Bankruptcy," as now or hereafter in effect, or any
successor thereto.
"Base Rate" at any time shall mean (x) in the case of
Multicurrency
Facility Revolving Loans (and related Obligations) and Tranche A
Term Loans and
Canadian Dollar Denominated Incremental Term Loans (and related
Obligations)
owing in U.S. Dollars after the occurrence of a Sharing Event, the
higher of (i)
the rate of interest in effect for such day as publicly announced
from time to
time by DBAG, as its "US base rate" for commercial loans made by it
in Canada
denominated in U.S. Dollars and (ii) the rate which is 1/2 of 1% in
excess of
the Federal Funds Rate at such time and (y) in all other cases, the
higher of
(i) the rate which is 1/2 of 1% in excess of the Federal Funds Rate
at such time
and (ii) the Prime Lending Rate at such time.
"Base Rate Loan" shall mean (i) each Swingline Loan, (ii)
each other
Dollar Denominated Loan which is designated or deemed designated as
a Base Rate
Loan by the respective Borrower at the time of the incurrence
thereof or
conversion thereto, (iii) each outstanding Tranche A Term Loan,
Multicurrency
Facility Revolving Loan and Canadian Borrower Incremental Term Loan
after the
conversion thereof pursuant to Section 2.14.
-6-
"Borrowers" shall have the meaning provided in the first
paragraph of
this Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan
pursuant to a
single Tranche by the Canadian Borrower or the U.S. Borrower, as
the case may
be, from all the Lenders having Commitments with respect to such
Tranche (or
from the Swingline Lender, in the case of Swingline Loans) on a
given date (or
resulting from a conversion or conversions on such date), having
(x) in the case
of Eurodollar Loans the same Interest Period and (y) in the case of
Bankers'
Acceptance Loans, underlying Bankers' Acceptances Drafts or B/A
Equivalent Notes
with the same maturities; provided (x) that Base Rate Loans
incurred pursuant to
Section 2.10(b) shall be considered part of the related Borrowing
of Eurodollar
Loans and (y) any Incremental Term Loans incurred pursuant to
Section 2.01(d)
shall be considered part of the related Borrowing of the then
outstanding
Tranche of Term Loans (if any) to which such Incremental Term Loans
are added
pursuant to, and in accordance with the requirements of, Section
2.15(c).
"Business Day" shall mean (i) for all purposes other than
as covered
by clauses (ii) and (iii) below, any day except Saturday, Sunday
and any day
which shall be in New York City a legal holiday or a day on which
banking
institutions are authorized or required by law or other government
action to
close and (ii) with respect to all notices and determinations in
connection
with, and payments of principal and interest on, Eurodollar Loans,
any day which
is a Business Day described in clause (i) above and which is also a
day for
trading by and between banks in the New York or London interbank
Eurodollar
market and (iii) with respect to all notices and determinations in
connection
with, and payments of principal (or, Face Amount, as applicable),
Unpaid
Drawings and interest on, Tranche A Term Loans, Canadian Dollar
Denominated
Incremental Term Loans, Multicurrency Facility Revolving Loans
incurred by the
Canadian Borrower or any Multicurrency Facility Letters of Credit,
any day which
is a Business Day described in clauses (i) and, if relevant, (ii)
above and
which is also a day which is not a legal holiday or a day on which
banking
institutions are authorized or required by law or other government
action to
close in Toronto, Ontario.
"CAM Exchange Percentage" shall mean, as to each Lender,
a fraction,
expressed as a decimal, in each case determined on the date of
occurrence of a
Sharing Event (but before giving effect to any actions to occur on
such date
pursuant to Section 2.14) of which (a) the numerator shall be the
sum of (i) the
RL Percentage of such Lender of (x) the aggregate outstanding
principal amount
(or, Face Amount, as applicable) of all Revolving Loans and
Swingline Loans
(taking the U.S. Dollar Equivalents of any amounts expressed in
Canadian Dollars
on the date of the occurrence of the Sharing Event) and (y) the
aggregate amount
of Letter of Credit Outstandings and (ii) the aggregate principal
amount (or,
Face Amount, as applicable) of all outstanding Term Loans of such
Lender (taking
the U.S. Dollar Equivalents of any amounts expressed in Canadian
Dollars on the
date of the occurrence of the Sharing Event), and (b) the
denominator of which
shall be the sum of (i) the sum of (x) the aggregate outstanding
principal (or,
Face Amount, as applicable) of all Revolving Loans and Swingline
Loans (taking
the U.S. Dollar Equivalents of any amounts expressed in Canadian
Dollars on the
date of the occurrence of the Sharing Event) and (y) the aggregate
amount of
Letter of Credit Outstandings, and (ii) the aggregate principal
amount (or, Face
Amount, as applicable) of all outstanding Term Loans of all Lenders
(taking the
U.S. Dollar Equivalents of any amounts expressed in Canadian
Dollars on the date
of the occurrence of the Sharing Event).
"Canadian Borrower" shall have the meaning provided in
the first
paragraph of this Agreement.
-7-
"Canadian Borrower Incremental Term Loans" shall mean
Incremental Term
Loan incurred by the Canadian Borrower.
"Canadian Credit Party" shall mean the Canadian Borrower
and each
Canadian Subsidiary Guarantor.
"Canadian Dollar Denominated Incremental Term Loans"
shall mean
Canadian Borrower Incremental Term Loans made in Canadian Dollars.
"Canadian Dollar Denominated Letter of Credit" shall mean
each Letter
of Credit denominated in Canadian Dollars.
"Canadian Dollar Denominated Letter of Credit
Outstandings" shall
mean, at any time, the sum of (i) the aggregate Stated Amount of
all outstanding
Canadian Dollar Denominated Letters of Credit at such time and (ii)
the
aggregate amount of all Unpaid Drawings with respect to Canadian
Dollar
Denominated Letters of Credit at such time.
"Canadian Dollar Denominated Loan" shall mean all Loans
denominated in
Canadian Dollars, which shall include each Tranche A Term Loan,
each Canadian
Dollar Denominated Incremental Term Loan and each Multicurrency
Facility
Revolving Loan made in Canadian Dollars.
"Canadian Dollar Denominated Revolving Loan" shall mean
each
Multicurrency Facility Revolving Loan denominated in Canadian
Dollars at the
time of the incurrence thereof.
"Canadian Dollar Equivalent" shall mean, at any time for
the
determination thereof, the amount of Canadian Dollars which could
be purchased
with the amount of U.S. Dollars involved in such computation at the
spot rate of
exchange therefor as quoted by the Administrative Agent as of 11:00
A.M. (New
York time) on the date two Business Days prior to the date of any
determination
thereof for purchase on such date (or, in the case of any
determination pursuant
to Section 2.14 or 13.22 or Section 21 of the U.S. Subsidiaries
Guaranty (or any
equivalent provision in any other Subsidiaries Guaranty), on the
date of
determination).
"Canadian Dollar L/C Stated Amount" of each Canadian
Dollar
Denominated Letter of Credit shall, at any time, mean the maximum
amount
available to be drawn thereunder (expressed in Canadian Dollars)
(in each case
determined without regard to whether any conditions to drawing
could then be
met, but after giving effect to all previous drawings made
thereunder).
"Canadian Dollars" and "Cdn.$" shall mean freely
transferable lawful
money of Canada.
"Canadian Lender" shall mean and include a Tranche A TL
Lender, a
Multicurrency Facility RL Lender or any Lender holding Canadian
Dollar
Denominated Incremental Term Loans (or related Incremental Term
Loan
Commitments).
"Canadian Pension Plan" shall mean any "registered
pension plan" that
is subject to the funding requirements of the Pension Benefits Act
(Ontario) or
applicable pension benefits legislation in any other Canadian
jurisdiction and
is applicable to employees of any Subsidiary of Holdings resident
in Canada or
any province or territory thereof.
"Canadian Pledge Agreement" shall have the meaning
provided in Section
6.14(b).
-8-
"Canadian Prime Rate" means, for any day, the rate of
interest per
annum equal to the greater of (i) the per annum rate of interest
quoted or
established as the "prime rate" of DBAG which it quotes or
establishes for such
day as its reference rate of interest in order to determine
interest rates for
commercial loans in Canadian Dollars in Canada to its Canadian
borrowers; and
(ii) the average rate for Canadian Dollar banker's acceptances
having a term of
30 days that appears on Reuters Screen CDOR Page (or such other
page as may be
selected by the Canadian Sub-Agent as a replacement page for such
Banker's
Acceptances if such screen is not available) at approximately 10:00
a.m.
(Toronto time) on such day plus 75 basis points per annum, adjusted
automatically with each quoted or established change in such rate,
all without
the necessity of any notice to either Borrower or any other Person.
"Canadian Prime Rate Loans" shall mean any Canadian
Dollar Denominated
Loan designated or deemed designated as such by the Canadian
Borrower at the
time of the incurrence thereof or conversion thereto.
"Canadian Reference Lenders" shall mean, collectively,
DBAG and The
Bank of Nova Scotia; and "Canadian Reference Lender" means any one
of them, as
the context requires.
"Canadian Resident" shall mean, in respect of a Tranche A
Term Loan, a
Canadian Dollar Denominated Incremental Term Loan, a Multicurrency
Facility
Revolving Loan or Multicurrency Facility Letter of Credit, at any
time, a Person
who at that time is (a) not a non-resident of Canada for purposes
of the Income
Tax Act (Canada); (b) an authorized foreign bank deemed to be
resident in Canada
for purposes of Part XIII of the Income Tax Act (Canada) in respect
of all
amounts payable to such Person pursuant to such Loans or Letters of
Credit, as
the case may be; (c) a Canadian partnership, within the meaning of
that term for
the purposes of paragraph 212(13.1)(b) of the Income Tax Act
(Canada); or (d)
not liable for withholding tax pursuant to Part XIII of the Income
Tax Act
(Canada) in respect of all amounts payable to such Person pursuant
to such Loans
or Letters of Credit, as the case may be.
"Canadian Security Agreement" shall have the meaning
provided in
Section 6.15(b).
"Canadian Security Documents" shall mean and include the
Canadian
Security Agreement, the Canadian Pledge Agreement each Mortgage
covering a
Mortgaged Property located in Canada or any province thereof, and,
on and after
the execution and delivery thereof, each security or other pledge
agreement
entered into pursuant to the terms of this Agreement and governed
by the laws of
Ontario (or Quebec, in the case of any Canadian Credit Party
organized under the
laws of Quebec or with Collateral, its chief executive office or
its principal
place of business in Quebec).
"Canadian Sub-Agent" shall mean DBAG, or any other
affiliate of DBTCA
or DBAG designated by DBTCA to act in such capacity.
"Canadian Subsidiaries Guaranty" shall have the meaning
provided in
Section 6.13(b).
"Canadian Subsidiary" shall mean (i) each Subsidiary of
Holdings
incorporated or organized in Canada or any province or territory
thereof and
(ii) U.S. Finco.
"Canadian Subsidiary Guarantor" shall mean (i) each
Wholly-Owned
Subsidiary of Holdings that is a Canadian Subsidiary as of the
Initial Borrowing
Date (other than the Canadian
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Borrower) and (ii) each other Wholly-Owned Subsidiary of Holdings
that is a
Canadian Subsidiary and is created, established or acquired after
the Initial
Borrowing Date which executes and delivers a Canadian Subsidiaries
Guaranty,
unless and until such time as the respective Canadian Subsidiary is
released
from all of its obligations under its Canadian Subsidiaries
Guaranty in
accordance with the terms and provisions thereof.
"Canadian Welfare Plan" shall mean any medical, health,
hospitalization, insurance or other employee benefit or welfare
plan or
arrangement (but excluding any Canadian Pension Plan) applicable to
employees of
a Subsidiary of the U.S. Borrower resident in Canada or any
province or
territory thereof.
"Capital Expenditures" means, for any period, (a) the
additions to
property, plant and equipment and other capital expenditures of the
U.S.
Borrower and its Subsidiaries that are (or would be) set forth in a
consolidated
statement of cash flows of the U.S. Borrower for such period
prepared in
accordance with U.S. GAAP and (b) Capital Lease Obligations
incurred by the U.S.
Borrower and its Subsidiaries during such period, provided that
Capital
Expenditures shall not include (i) expenditures that constitute the
consideration paid in respect of any Permitted Acquisition, (ii)
expenditures to
the extent they are made with the Net Proceeds from the issuance of
Equity
Interests of Holdings, (iii) expenditures to the extent they are
made with the
Net Proceeds of an Asset Sale or Recovery Event, so long as such
Net Proceeds
are reinvested in the business of the U.S. Borrower and its
Subsidiaries
pursuant to the requirements of the provisos contained in Sections
5.02(c) or
5.02(e), as the case may be, (iv) the purchase price of equipment
to the extent
the consideration therefor consists of any combination of (A) used
or surplus
equipment traded in at the time of such purchase and (B) the Net
Proceeds of a
substantially concurrent sale of used or surplus equipment, in each
case in the
ordinary course of business, (v) interest capitalized during such
period, (vi)
expenditures that are accounted for as capital expenditures of the
U.S. Borrower
and its Subsidiaries and that actually are paid for by a third
party (excluding
Holdings or any Subsidiary thereof) and for which neither Holdings
nor any
Subsidiary thereof has provided or is required to provide or incur,
directly or
indirectly, any consideration or obligation to such third party or
any other
Person (whether before, during or after such period) and (vii) the
book value of
any asset owned by the U.S. Borrower or any of its Subsidiaries
prior to or
during such period to the extent that such book value is included
as a capital
expenditure during such period as a result of the U.S. Borrower or
such
Subsidiary reusing or beginning to reuse such asset during such
period without a
corresponding expenditure actually having been made in such period,
provided
that (A) any expenditure necessary in order to permit such asset to
be reused
shall be included as a Capital Expenditure during the period that
such
expenditure actually is made and (B) such book value shall have
been included in
Capital Expenditures when such asset was originally acquired if
such asset was
originally acquired on or after January 1, 2004.
"Capital Lease Obligations" of any Person means the
obligations of
such Person to pay rent or other amounts under any lease of (or
other
arrangement conveying the right to use) real or personal property,
or a
combination thereof, which obligations are required to be
classified and
accounted for as capital leases on a balance sheet of such Person
under U.S.
GAAP, and the amount of such obligations shall be the capitalized
amount thereof
determined in accordance with U.S. GAAP.
"Change in Control" means (a) prior to a Qualified IPO,
the
failure by the Permitted Holders to own, directly or indirectly,
beneficially and of record, Equity Interests in Holdings
representing at least a
majority of the aggregate ordinary voting power represented by the
issued and
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outstanding Equity Interests in Holdings, (b) after a Qualified
IPO, (i) the
failure by the Permitted Holders to own, directly or indirectly,
beneficially
and of record, Equity Interests in Holdings representing at least
35% of the
aggregate ordinary voting power represented by the issued and
outstanding Equity
Interests in Holdings or (ii) the acquisition of ownership,
directly or
indirectly, beneficially or of record, by any Person or group
(within the
meaning of the Exchange Act as in effect on the date hereof) other
than the
Permitted Holders of Equity Interests in Holdings representing more
than 35% of
the aggregate ordinary voting power represented by the issued and
outstanding
Equity Interests in Holdings, provided that, in the case of this
clause (ii),
the Permitted Holders own directly or indirectly, beneficially or
of record, a
smaller percentage of such aggregate ordinary voting power or (c)
occupation of
a majority of the seats (other than vacant seats) on the board of
directors of
Holdings by Persons who were neither (i) nominated by the board of
directors of
Holdings, (ii) appointed by directors so nominated or (iii)
nominated or
appointed by the Permitted Holders.
"Co-Documentation Agent" shall have the meaning provided
in the first
paragraph of this Agreement and shall include any successor to a
Co-Documentation Agent appointed pursuant to Section 12.10.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from
time to time, and the regulations promulgated and rulings issued
thereunder.
Section references to the Code are to the Code, as in effect at the
date of this
Agreement and any subsequent provisions of the Code, amendatory
thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all property (whether real or
personal,
movable or immovable) with respect to which any security interests
have been
granted (or purported to be granted) pursuant to any Security
Document
(including any Additional Security Document), including, without
limitation, all
Pledge Agreement Collateral, all Mortgaged Properties and all cash
and Permitted
Investments delivered as collateral pursuant to Sections 5.02 or 11
or any
Credit Document and all Additional Collateral, if any.
"Collateral Agent" shall mean DBTCA, acting as collateral
agent for
the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning
provided in
Section 6.17.
"Commitment" shall mean any of the commitments of any
Lender, i.e.,
whether a Tranche A Term Loan Commitment, Tranche B Term Loan
Commitment,
Tranche C Term Loan Commitment, Incremental Term Loan Commitment,
Multicurrency
Facility Revolving Loan Commitment or Dollar Facility Revolving
Loan Commitment
of such Lender.
"Common Equity Financing" shall have the meaning provided
in Section
6.09(a).
"Common Equity Financing Documents" shall mean all of the
agreements
governing or relating to the Common Equity Financing, in each case
as the same
may be amended, modified and/or supplemented from time to time in
accordance
with the terms thereof.
"Company" shall mean any corporation, limited liability
company,
partnership or other business entity (or the adjectival form
thereof, where
appropriate).
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"Consolidated Cash Interest Expense" means, for any
period, the excess
of (a) the sum of (i) the interest expense (including imputed
interest expense
in respect of Capital Lease Obligations) of the U.S. Borrower and
its
Subsidiaries for such period, determined on a consolidated basis in
accordance
with U.S. GAAP, (ii) any interest accrued during such period in
respect of
Indebtedness of the U.S. Borrower or any of its Subsidiaries that
is required to
be capitalized rather than included in such consolidated interest
expense for
such period in accordance with U.S. GAAP, (iii) any cash payments
made during
such period in respect of obligations referred to in clause
(b)(iii) below that
were amortized or accrued in a previous period and (iv) to the
extent not
otherwise included in consolidated interest expense for such
period,
commissions, discounts, yield and other fees, charges and amounts
incurred in
connection with Permitted Securitizations during such period that
are payable to
any person other than a U.S. Credit Party and that are comparable
to or in the
nature of interest under any Permitted Securitization, including
losses on the
sale of assets relating to any receivables securitization
transaction accounted
for as a "true sale" (other than any one-time financing fees paid
upon entering
into any Permitted Securitization), minus (b) the sum of (i)
interest income (to
the extent paid or payable in cash) of the U.S. Borrower and its
Subsidiaries
for such period, determined on a consolidated basis in accordance
with U.S.
GAAP, in an aggregate amount not to exceed U.S.$4,000,000 during
any period of
four consecutive Fiscal Quarters, (ii) to the extent included in
such
consolidated interest expense for such period, non-cash amounts
attributable to
amortization of financing costs paid in a previous period and (iii)
to the
extent included in such consolidated interest expense for such
period, non-cash
amounts attributable to amortization of debt discounts or accrued
interest
payable in kind for such period; provided that for purposes of
calculating the
Interest Expense Coverage Ratio for any period of four fiscal
quarters ending
prior to September 30, 2005, Consolidated Interest Expense for such
period of
four fiscal quarters shall be deemed to be (i) in the case of the
period ended
at the end of the fiscal quarter ended March 31, 2005, Consolidated
Interest
Expense for such fiscal quarter multiplied by 4, (ii) in the case
of the period
ended at the end of the fiscal quarter ended June 30, 2005,
Consolidated
Interest Expense for the period of two fiscal quarters ended at the
end of such
fiscal quarter multiplied by 2 and (iii) in the case of the period
ended at the
end of the fiscal quarter ended September 30, 2005, Consolidated
Interest
Expense for the period of three fiscal quarters ended at the end of
such fiscal
quarter multiplied by 4/3.
"Consolidated EBITDA" means, for any period, Consolidated
Net Income
for such period plus (a) without duplication and to the extent
deducted in
determining such Consolidated Net Income for such period, the sum
of (i)
consolidated interest expense of the U.S. Borrower and its
Subsidiaries for such
period (including, to the extent not otherwise included in
consolidated interest
expense for such period, commissions, discounts, yield and other
fees and
charges incurred during such period in connection with Permitted
Securitizations
that are payable to any person other than a U.S. Credit Party, and
any other
amounts for such period comparable to or in the nature of interest
under any
Permitted Securitization, including losses on the sale of assets
relating to any
receivables securitization transaction accounted for as a "true
sale"), (ii)
consolidated income tax expense of the U.S. Borrower and its
Subsidiaries for
such period (including any income tax expense of Holdings for such
period to the
extent the U.S. Borrower has made payment to or for the account of
Holdings in
respect thereof), (iii) all amounts attributable to depreciation
and
amortization expense of the U.S. Borrower and its Subsidiaries for
such period,
(iv) any non-cash charges, losses or expenses of the U.S. Borrower
and its
Subsidiaries for such period (but excluding any non-cash charge,
loss or expense
in respect of an item that was included in Consolidated Net Income
in a prior
period and any non-cash charge, loss or expense that relates to the
write-down
or write-off of inventory, other than any write-down or write-off
of inventory
as a result of purchase accounting adjustments in respect of the
Acquisition or
any Permitted Acquisition), (v) any non-recurring fees, cash
charges and other
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cash expenses (excluding any Restructuring Charges) made or
incurred by the U.S.
Borrower and its Subsidiaries in connection with the Transaction
that are paid
or otherwise accounted for within 90 days of the Effective Date in
an aggregate
amount not to exceed U.S.$55,000,000, (vi) any Non-Specified
Restructuring
Charges of the U.S. Borrower and its Subsidiaries for such period,
provided that
the aggregate amount of Non-Specified Restructuring Charges in any
period,
together with the aggregate amount of Non-Regulation S-X
Adjustments
attributable to such period, shall not exceed 7.5% of Consolidated
EBITDA (for
such purposes, as determined as provided in this definition without
regard to
this clause (vi)) for such period, (vii) any non-recurring fees,
expenses or
charges made or incurred by the U.S. Borrower and its Subsidiaries
during such
period in respect of professional or financial advisory, investment
banking,
financing, underwriting, placement agent or other similar services
(including
fees and expenses in respect of legal counsel, consultants and
accountants) to
the extent related to any equity offering, investment, acquisition,
divestiture
or recapitalization permitted hereunder or any issuance of
Indebtedness
permitted to be incurred hereunder (whether or not successful),
(viii) any
extraordinary charges or losses of the U.S. Borrower and its
Subsidiaries for
such period, (ix) any losses of the U.S. Borrower and its
Subsidiaries for such
period in respect of the sale of any discontinued operations during
such period
and (x) any losses of the U.S. Borrower and its Subsidiaries for
such period in
respect of business dispositions or asset dispositions outside the
ordinary
course of business (as determined in good faith by the U.S.
Borrower) during
such period, minus (b) without duplication and to the extent
included in
determining such Consolidated Net Income, (i) any cash payments
made during such
period in respect of non-cash charges described in clause (a)(i)
taken in a
prior period, (ii) any extraordinary gains and any non-cash items
of income for
such period, (iii) any gains for such period in respect of the sale
of any
discontinued operations during such period and (iv) any gains for
such period in
respect of business dispositions or asset dispositions outside the
ordinary
course of business (as determined in good faith by the U.S.
Borrower) during
such period, all determined on a consolidated basis in accordance
with U.S.
GAAP. Notwithstanding the foregoing, Consolidated EBITDA shall be
deemed to be
(i) in the case of the Fiscal Quarters ended March 31, 2004, June
30, 2004, and
September 30, 2004, U.S.$69,400,000, U.S.$73,000,000 and
U.S.$39,000,000,
respectively, and (ii) in the case of the Fiscal Quarter ended
December 31,
2004, the sum of actual Consolidated EBITDA for the period from and
including
the Initial Borrowing Date to and including the last day of such
Fiscal Quarter
plus an amount equal to U.S.$48,400,000 multiplied by a fraction
(x) the
numerator of which is the number of days from and including October
1, 2004 to
but excluding the Initial Borrowing Date and (y) the denominator of
which is the
total number of days in such Fiscal Quarter.
"Consolidated Net Income" shall mean, for any period, the
net income
or loss of the U.S. Borrower and its Subsidiaries for such period
determined on
a consolidated basis in accordance with U.S. GAAP (adjusted to
reflect any
charge, tax or expense incurred or accrued by Holdings during such
period as
though such charge, tax or expense had been incurred by the U.S.
Borrower, to
the extent that the U.S. Borrower has made or is permitted under
the Credit
Documents to make any payment to or for the account of Holdings in
respect
thereof), provided that (a) there shall be excluded from
Consolidated Net Income
(i) the income of any Subsidiary of the U.S. Borrower to the extent
that the
declaration or payment of dividends or other distributions by such
Subsidiary of
that income is not at the time permitted by a Requirement of Law or
any
agreement or instrument applicable to such Subsidiary, except to
the extent of
the amount of cash dividends or other cash distributions actually
paid to the
U.S. Borrower or any of its Subsidiaries during such period (unless
the income
of the Subsidiary receiving such dividend or distribution would be
excluded from
Consolidated Net Income pursuant to this proviso) and (ii) except
for
calculations required to be made on a Pro Forma Basis, the income
or loss of any
Person accrued prior to the date it becomes a Subsidiary of the
U.S. Borrower or
is merged into or consolidated with the U.S. Borrower or any of
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its Subsidiaries or the date that such Person's assets are acquired
by the U.S.
Borrower or any of its Subsidiaries and (b) there shall be included
in
Consolidated Net Income the income of any Permitted Joint Venture
to the extent
of the amount of cash dividends or other cash distributions
actually paid by
such Permitted Joint Venture to the U.S. Borrower or any of its
Subsidiaries
during such period (unless the income of the Subsidiary receiving
such dividend
or distribution would be excluded from Consolidated Net Income
pursuant to
clause (a) above).
"Control" means the possession, directly or indirectly,
of the power
to (i) direct or cause the direction of the management or policies
of a Person,
whether through the ability to exercise voting power, by contract
or otherwise
or (ii) vote 10% or more of the securities having ordinary voting
power for the
election of directors (or equivalent governing body) of a Person.
"Controlling"
and "Controlled" have meanings correlative thereto.
"Credit Agreement Party" shall mean Holdings and each
Borrower.
"Credit Documents" shall mean this Agreement, the Notes,
each
Subsidiaries Guaranty, the Intercompany Subordination Agreement,
each Security
Document, each Incremental Term Loan Commitment Agreement and any
other
guarantees or security documents executed and delivered for the
benefit of the
Lenders in accordance with the requirements of this Agreement and
any other
guaranties, pledge agreements or security documents executed and
delivered in
accordance with the requirements of Sections 9.12 and 9.13.
"Credit Event" shall mean the making of a Loan (other
than a Dollar
Facility Revolving Loan made pursuant to a Mandatory Dollar
Facility RL
Borrowing) or the issuance of a Letter of Credit.
"Credit Party" shall mean each U.S. Credit Party and each
Canadian
Credit Party.
"DBAG" shall mean Deutsche Bank AG, Canada Branch, in its
individual
capacity, and any successor corporation thereto by merger,
consolidation or
otherwise.
"DBSI" shall mean Deutsche Bank Securities Inc., in its
individual
capacity, and any successor corporation thereto by merger,
consolidation or
otherwise.
"DBTCA" shall mean Deutsche Bank Trust Company Americas,
in its
individual capacity, and any successor corporation thereto by
merger,
consolidation or otherwise.
"Default" shall mean any event, act or condition, which
with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a
Lender Default is in effect.
"Discontinuation" shall mean any discontinuation of any
of the
operations of the U.S. Borrower or any of its Subsidiaries.
"Documents" shall mean and include (i) the Credit
Documents, (ii) the
Acquisition Documents, (iii) the Common Equity Financing Documents,
(iv) the
Senior Notes Documents, (v) the Senior Subordinated Notes
Documents, (vi) the
Intercompany Distribution Transaction Documents, (vii) the Foreign
Asset
Transfer Documents and (viii) the Refinancing Documents.
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"Dollar Denominated Letter of Credit" shall mean each
Letter of Credit
denominated in U.S. Dollars.
"Dollar Denominated Letter of Credit Outstandings" shall
mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding
Dollar
Denominated Letters of Credit at such time and (ii) the aggregate
amount of all
Unpaid Drawings with respect to Dollar Denominated Letters of
Credit at such
time.
"Dollar Denominated Loan" shall mean all Loans
denominated in U.S.
Dollars, which shall include each Tranche B Term Loan, each Tranche
C Term Loan,
each Incremental Term Loan made in U.S. Dollars, each Dollar
Facility Revolving
Loan, each Swingline Loan, and each Multicurrency Facility
Revolving Loan made
in U.S. Dollars, as well as each Tranche A Term Loan and each
Multicurrency
Facility Revolving Loan made in Canadian Dollars converted into
U.S. Dollars in
accordance with the provisions of Section 2.14.
"Dollar Denominated Revolving Loan" shall mean all
Revolving Loans
incurred in U.S. Dollars, including all Multicurrency Facility
Revolving Loans
denominated in U.S. Dollars and all Dollar Facility Revolving
Loans.
"Dollar Facility Letter of Credit" shall mean each Letter
of Credit
(which must be denominated in U.S. Dollars) issued to the U.S.
Borrower pursuant
to Section 3.01 and designated as such by the U.S. Borrower in the
respective
Letter of Credit Request.
"Dollar Facility Letter of Credit Outstandings" shall
mean, at any
time, the sum of (i) the aggregate Stated Amount of all outstanding
Dollar
Facility Letters of Credit and (ii) the aggregate amount of all
Unpaid Drawings
in respect of all Dollar Facility Letters of Credit.
"Dollar Facility Revolving Loan" shall have the meaning
provided in
Section 2.01(f).
"Dollar Facility Revolving Loan Commitment" shall mean,
for each
Lender, the amount set forth opposite such Lender's name on
Schedule I hereto
directly below the column entitled "Dollar Facility Revolving Loan
Commitment",
as same may be (x) reduced from time to time and/or terminated
pursuant to
Sections 4.02, 4.03 and/or 11 or (y) adjusted from time to time as
a result of
assignments to or from such Lender pursuant to Sections 2.13 or
13.04(b).
"Dollar Facility Revolving Note" shall have the meaning
provided in
Section 2.05(a).
"Dollar Facility RL Lender" shall mean any Lender with a
Dollar
Facility Revolving Loan Commitment (without giving effect to any
termination of
the Total Dollar Facility Revolving Loan Commitment if any
Swingline Loans or
Dollar Facility Letter of Credit Outstandings remain outstanding)
or outstanding
Dollar Facility Revolving Loans (or any participation in any Dollar
Facility
Letter of Credit Outstandings).
"Dollar Facility RL Percentage" of any Dollar Facility RL
Lender at
any time shall mean that percentage which is equal to a fraction
(expressed as a
percentage) the numerator of which is the Dollar Facility Revolving
Loan
Commitment of such Dollar Facility RL Lender at such time and the
denominator of
which is the Total Dollar Facility Revolving Loan Commitment at
such time,
provided that if any such determination is to be made after the
Total Dollar
Facility Revolving Loan Commitment (and the related Dollar Facility
Revolving
Loan Commitments of the Lenders) has (or
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have) terminated, the determination of such percentages shall be
made
immediately before giving effect to such termination.
"Domestic Permitted Acquisition" shall mean any Permitted
Acquisition
pursuant to which (a) any acquired or newly formed Subsidiary of
the U.S.
Borrower is a Domestic Subsidiary of the U.S. Borrower or (b) the
assets that
are the subject of such Permitted Acquisition are acquired by a
Domestic
Subsidiary of the U.S. Borrower and are located in the United
States or any
State or territory thereof.
"Domestic Subsidiary" shall mean, as to any Person, any
Subsidiary of
such Person incorporated or organized in the United States or any
State or
territory thereof or the District of Columbia (other than U.S.
Finco).
"Draft" shall mean at any time either a depository bill
within the
meaning of the Depository Bills and Notes Act (Canada), or a bill
of exchange,
within the meaning of the Bills of Exchange Act (Canada), drawn by
the Canadian
Borrower on a Canadian Lender and bearing such distinguishing
letters and
numbers as such Canadian Lender may determine, but which at such
time has not
been completed or accepted by such Canadian Lender.
"Drawing" shall have the meaning provided in Section
3.04(a).
"Drawing Date" shall mean any Business Day fixed pursuant
to Schedule
III for the creation of Bankers' Acceptances or the purchase of
completed Drafts
and the exchange thereof for B/A Equivalent Notes, in each case by
a Canadian
Lender pursuant to Schedule III.
"Drawing Fee" shall mean, in respect of a Draft drawn by
the Canadian
Borrower hereunder and accepted by a B/A Lender or a Draft
purchased by a
Non-B/A Lender, a fee calculated on the Face Amount of such Draft
at a rate per
annum equal to the Applicable Margin that would be payable with
respect to a
Multicurrency Facility Revolving Loan maintained as a Eurodollar
Loan drawn on
the Drawing Date of such Draft. Drawing Fees shall be calculated on
the basis of
the term to maturity of the Draft and a year of 365 days.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as
amended from time to time, and any successor statute.
"Effective Date" shall have the meaning provided in
Section 13.10.
"Eligible Transferee" shall mean and include a commercial
bank, a
mutual fund, an insurance company, a financial institution, a
"qualified
institutional buyer" (as defined in Rule 144A of the Securities
Act), any fund
that regularly invests in bank loans or any other "accredited
investor" (as
defined in Regulation D), but in any event excluding any individual
and Holdings
and its Subsidiaries and Affiliates.
"End Date" shall have the meaning provided in the
definition of
Applicable Margin.
"Environmental Laws" shall mean all applicable federal,
provincial,
state, local and foreign laws (including common law), treaties,
regulations,
rules, directives, orders, injunctions, decrees, notices or legally
binding
agreements, in each case issued, promulgated or entered into by any
Governmental
Authority relating to protection of the environment, natural
resources, human
-16-
health and safety (as relating to Hazardous Materials, the
environment or
occupational health and safety), or the presence of, Release of, or
exposure to,
Hazardous Materials.
"Environmental Liability" shall mean liabilities,
obligations,
damages, claims, actions, suits, judgments, orders, fines,
penalties, fees,
expenses and costs (including administrative oversight costs,
natural resource
damages and medical monitoring, investigation or remediation
costs), whether
contingent or otherwise, arising out of or relating to (a)
compliance or
noncompliance with any Environmental Law, (b) the presence,
generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the Release
or
threatened Release of any Hazardous Materials or (e) any contract,
agreement or
other consensual arrangement pursuant to which liability is assumed
or imposed
with respect to any of the foregoing.
"Equity Interests" of any Person shall mean any and all
shares,
interests, rights to purchase, warrants, options, participation or
other
equivalents of or interest in (however designated) equity of such
Person,
including any preferred stock, any limited or general partnership
interest and
any limited liability company membership interest.
"ERISA" shall mean the Employee Retirement Income
Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings
issued thereunder. Section references to ERISA are to ERISA, as in
effect at the
date of this Agreement and any subsequent provisions of ERISA,
amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean any trade or business
(whether or not
incorporated) that, together with the U.S. Borrower or Subsidiaries
of the U.S.
Borrower, is treated as a single employer under Section 414(b) or
(c) of the
Code.
"ERISA Event" shall mean (a) any "reportable event", as
defined in
Section 4043 of ERISA or the regulations issued thereunder, with
respect to a
Plan (other than reportable events with respect to which the 30-day
notice
period has been waived), (b) the existence with respect to any Plan
of an
"accumulated funding deficiency" (as defined in Section 412 of the
Code or
Section 302 of ERISA), whether or not waived, (c) the filing
pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for
a waiver of
the minimum funding standard with respect to any Plan, (d) the
incurrence by
Holdings, the U.S. Borrower or any of their respective ERISA
Affiliates of any
liability under Title IV of ERISA with respect to the termination
of any Plan,
(e) the receipt by Holdings, the U.S. Borrower or any of their
respective ERISA
Affiliates from the PBGC or a plan administrator of any notice
relating to an
intention to terminate any Plan or Plans or to appoint a trustee to
administer
any Plan, (f) the incurrence by Holdings, the U.S. Borrower or any
of their
respective ERISA Affiliates of any liability with respect to the
withdrawal or
partial withdrawal from any Plan or Multiemployer Plan or (g) the
receipt by
Holdings, the U.S. Borrower or any of their respective ERISA
Affiliates of any
notice, or the receipt by any Multiemployer Plan from Holdings, the
U.S.
Borrower or any of their respective ERISA Affiliates of any notice,
concerning
the imposition of Withdrawal Liability or a determination that a
Multiemployer
Plan is, or is expected to be, insolvent or in reorganization,
within the
meaning of Title IV of ERISA.
"Eurodollar Loans" shall mean each Dollar Denominated
Loan (excluding
Swingline Loans) designated as such by the respective Borrower or
Borrowers at
the time of the incurrence thereof or conversion thereto.
-17-
"Eurodollar Rate" shall mean, for any Interest Period, in
the case of
any U.S. Dollar Denominated Loan, (i) the rate (rounded upwards to
the nearest
1/16 of 1%) appearing on the page identified as 'Reuters Libor 01'
of the
Reuters Service (or on any successor or substitute page of such
Service, or any
successor to or substitute for such Service, providing rate
quotations
comparable to those currently provided on such page of such
Service, as
determined by the Administrative Agent from time to time for
purposes of
providing quotations of interests rates applicable to U.S. dollar
deposits in
the London interbank market) for U.S. Dollar deposits of amounts in
immediately
available funds comparable to the principal amount of the
applicable Eurodollar
Loan for which the Eurodollar Rate is being determined with
maturities
comparable to the Interest Period for which such Eurodollar Rate
will apply, as
of approximately 10:00 A.M. (New York time) on the Interest
Determination Date
divided by (ii) a percentage equal to 100% minus the then stated
maximum rate of
all reserve requirements (including, without limitation, any
marginal,
emergency, supplemental, special or other reserves) applicable to
any member
bank of the Federal Reserve System in respect of Eurocurrency
liabilities as
defined in Regulation D (or any successor category of liabilities
under
Regulation D). The determination of the Eurodollar Rate by the
Administrative
Agent shall be conclusive and binding on the Borrowers absent
manifest error.
"Event of Default" shall have the meaning provided in
Section 11.
"Excess Cash Flow" shall mean, for any Excess Cash Flow
Payment
Period, the sum (without duplication) of:
(a) Consolidated Net Income for such Excess Cash Flow
Payment Period,
adjusted to exclude any gains or losses attributable to any
Asset Sale or
Recovery Event; plus
(b) depreciation, amortization and other non-cash charges
or losses
(including deferred income taxes) deducted in determining such
Consolidated
Net Income for such Excess Cash Flow Payment Period; plus
(c) the sum of (i) the amount, if any, by which Net
Working Capital
decreased during such Excess Cash Flow Payment Period (except
as a result
of reclassification of items from short-term to long-term)
plus (ii) the
net amount, if any, by which the consolidated deferred
revenues and other
consolidated accrued long term liability accounts (excluding
Long-Term
Indebtedness) of the U.S. Borrower and its consolidated
Subsidiaries
increased during such Excess Cash Flow Payment Period plus
(iii) the net
amount, if any, by which the consolidated accrued long-term
asset accounts
of the U.S. Borrower and its consolidated Subsidiaries
decreased during
such Excess Cash Flow Payment Period; minus
(d) the sum of (i) any non-cash gains included in
determining
Consolidated Net Income for such Excess Cash Flow Payment
Period plus (ii)
the amount, if any, by which Net Working Capital increased
during such
Excess Cash Flow Payment Period (except as a result of
reclassification of
items from long-term to short-term) plus (iii) the net amount,
if any, by
which the consolidated deferred revenues and other
consolidated accrued
long term liability accounts of the U.S. Borrower and its
consolidated
Subsidiaries decreased during such Excess Cash Flow Payment
Period plus
(iv) the net amount, if any, by which the consolidated accrued
long term
asset accounts of the U.S. Borrower and its consolidated
Subsidiaries
increased during such Excess Cash Flow Payment Period; minus
-18-
(e) the sum of (i) Capital Expenditures for such Excess
Cash Flow
Payment Period (except to the extent (A) attributable to the
incurrence of
Capital Lease Obligations or (B) otherwise financed by
incurring Long-Term
Indebtedness) plus (ii) cash consideration paid during such
Excess Cash
Flow Payment Period to make Permitted Acquisitions or other
capital
investments or investments or expenditures pursuant to
Sections 10.04(p) or
10.04(q) (except to the extent financed (A) by incurring Long
Term
Indebtedness (excluding Indebtedness in respect of Revolving
Loans and
Swingline Loans), (B) with Equity Interests of Holdings or
with the Net
Proceeds of substantially concurrent equity contributions to,
or sales or
issuances of Equity Interests of, Holdings) or (C) with
Retained Excess
Cash Flow in respect of the immediately preceding Excess Cash
Flow Payment
Period); minus
(f) the aggregate principal amount of Long Term
Indebtedness repaid or
prepaid by the U.S. Borrower and its consolidated Subsidiaries
during such
Excess Cash Flow Payment Period, excluding (i) Indebtedness in
respect of
Revolving Loans, Swingline Loans and Letters of Credit (unless
there is a
corresponding reduction in the aggregate Revolving Loan
Commitments), (ii)
Term Loans prepaid pursuant to Section 5.01 or Section
5.02(c), (d), (e) or
(f) and (iii) repayments or prepayments of Long Term
Indebtedness financed
by incurring other Long-Term Indebtedness; minus
(g) the aggregate amount of Restricted Payments made
during such
Excess Cash Flow Payment Period pursuant to clause (iii) of
Section
10.08(a); minus
(h) amounts paid in cash during such Excess Cash Flow
Payment Period
in respect of (x) items that were accounted for as non-cash
reductions in
determining Consolidated Net Income in a prior Excess Cash
Flow Payment
Period and (y) reserves or accruals established in purchase
accounting;
plus
(i) amounts received in cash during such Excess Cash Flow
Payment
Period in respect of items that were accounted for as a
non-cash increase
in determining Consolidated Net Income in a prior Excess Cash
Flow Payment
Period.
"Excess Cash Flow Payment Period" shall mean, with
respect to any
Excess Cash Payment Date, the immediately preceding Fiscal Year.
"Excess Cash Payment Date" shall mean the date that is
five (5) days
after of the delivery (or required delivery) of the financial
statements of the
U.S. Borrower pursuant to Section 9.01(a) for the Fiscal Year then
last ended
(commencing with the Fiscal Year ended closest to December 31,
2005).
"Exchange Act" shall mean the Securities Exchange Act of
1934, as
amended, and the rules and regulations of the SEC thereunder.
"Exchange Senior Notes" shall mean senior notes issued in
exchange for
Senior Notes pursuant to the Senior Notes Indenture, which Exchange
Senior Notes
are substantially identical securities to the originally issued
Senior Notes and
shall be issued pursuant to a registered exchange offer or private
exchange
offer for the Senior Notes on market terms satisfactory to the
Administrative
Agent; provided that in no event will the issuance of any Exchange
Senior Notes
increase the aggregate principal amount of Senior Notes theretofore
outstanding
or otherwise result in an increase in the interest rate applicable
to the Senior
Notes theretofore outstanding.
-19-
"Exchange Senior Subordinated Notes" shall mean senior
subordinated
notes issued in exchange for Senior Subordinated Notes pursuant to
the Senior
Subordinated Notes Indenture, which Exchange Senior Subordinated
Notes are
substantially identical securities to the originally issued Senior
Subordinated
Notes and shall be issued pursuant to a registered exchange offer
or private
exchange offer for the Senior Subordinated Notes on market terms
satisfactory to
the Administrative Agent; provided that in no event will the
issuance of any
Exchange Senior Subordinated Notes increase the aggregate principal
amount of
Senior Subordinated Notes theretofore outstanding or otherwise
result in an
increase in the interest rate applicable to the Senior Subordinated
Notes
theretofore outstanding.
"Existing Indebtedness Agreements" shall have the meaning
provided in
Section 6.17.
"Existing Joint Ventures" means joint ventures in respect
of which
either Borrower or any of their respective Subsidiaries holds any
Equity
Interests on the Initial Borrowing Date, as set forth on Schedule
VII.
"Face Amount" shall mean, in respect of a Draft, Bankers'
Acceptance
or B/A Equivalent Note, as the case may be, the amount payable to
the holder
thereof on its maturity. The Face Amount of any Bankers' Acceptance
Loan shall
be equal to the aggregate Face Amounts of the underlying Bankers'
Acceptances,
B/A Equivalent Notes or Drafts, as the case may be.
"Facing Fee" shall have the meaning provided in Section
4.01(c).
"Federal Funds Rate" shall mean, for any period, a
fluctuating
interest rate 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 which is a Business Day, the average of the quotations for such
day on such
transactions received by the Administrative Agent from three
Federal Funds
brokers of recognized standing selected by the Administrative
Agent.
"Fees" shall mean all amounts payable pursuant to, or
referred to in,
Section 4.01.
"Financial Ratio" shall mean the Interest Coverage Ratio,
the Leverage
Ratio or the Senior Secured Leverage Ratio.
"Fiscal Quarter" shall mean, for any Fiscal Year, each of
(i) the
three month period commencing on January 1 of such Fiscal Year and
ending on
March 31 of such Fiscal Year, (ii) the three month period
commencing on April 1
of such Fiscal Year and ending on June 30 of such Fiscal Year,
(iii) the three
month period commencing on July 1 of such Fiscal Year and ending on
September 30
of such Fiscal Year and (iv) the three month period commencing on
October 1 of
such Fiscal Year and ending on December 31 of such Fiscal Year, as
the case may
be. For purposes of this Agreement, a reference to the 1st Fiscal
Quarter of any
Fiscal Year shall be a reference to the period referred to in
clause (i) above;
a reference to the 2nd Fiscal Quarter of any Fiscal Year shall be a
reference to
the period referred to in clause (ii) above; a reference to the 3rd
Fiscal
Quarter of any Fiscal Year shall be a reference to the period
referred to in
clause (iii) above; and a reference to the
-20-
4th Fiscal Quarter of any Fiscal Year shall be a reference to the
period
referred to in clause (iv) above.
"Fiscal Year" shall mean the fiscal year of the U.S.
Borrower and its
Subsidiaries ending on December 31 of each calendar year. For
purposes of this
Agreement, any particular Fiscal Year shall be designated by
reference to the
calendar year in which the majority of such Fiscal Year falls.
"Foreign Asset Transfer" shall have the meaning provided
in Section
6.08(b).
"Foreign Asset Transfer Documents" shall mean the various
material
documents and agreements entered into in connection with the
Foreign Asset
Transfer.
"Foreign Pension Plan" shall mean any plan, fund
(including, without
limitation, any superannuation fund) or other similar program
established or
maintained outside the United States of America by Holdings or any
one or more
of its Subsidiaries primarily for the benefit of employees of
Holdings or any of
its Subsidiaries residing outside the United States of America,
which plan, fund
or other similar program provides, or results in, retirement
income, a deferral
of income in contemplation of retirement or payments to be made
upon termination
of employment, and which plan is not subject to ERISA or the Code,
but excluding
any Canadian Pension Plan.
"Foreign Permitted Acquisition" shall mean any Permitted
Acquisition
that is not a Domestic Permitted Acquisition.
"Foreign Pledge Agreements" shall mean and include the
Canadian Pledge
Agreement and the Local Law Pledge Agreements.
"Foreign Security Document" shall mean each Security
Document other
than a U.S. Security Document.
"Foreign Subsidiary" shall mean, as to any Person, any
Subsidiary of
such Person that is not a Domestic Subsidiary of such Person.
"Funded Debt" shall mean, as of any date, the sum of (i)
the aggregate
principal amount (or, Face Amount, as applicable) of all Tranche A
Term Loans,
Tranche B Term Loans, Tranche C Term Loans and Incremental Term
Loans
outstanding on such date and (ii) the aggregate principal amount of
the Senior
Notes, the Senior Subordinated Notes and Additional Senior
Subordinated Notes
outstanding on such date.
"Governmental Authority" shall mean the government of the
United
States of America, Canada, any other nation or any political
subdivision
thereof, whether state, provincial or local, and any agency,
authority,
instrumentality, regulatory body, court, central bank or other
entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or
functions of or pertaining to government.
"GSCP" shall mean Goldman Sachs Credit Partners, L.P., in
its
individual capacity, and any successor corporation thereto by
merger,
consolidation or otherwise.
-21-
"Guarantee" of or by any Person (the "guarantor") shall
mean any
obligation, contingent or otherwise, of the guarantor guaranteeing
or having the
economic effect of guaranteeing any Indebtedness or other
obligation of any
other Person (the "primary obligor") in any manner, whether
directly or
indirectly, and including any obligation of the guarantor, direct
or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase
or payment
of) such Indebtedness or other obligation or to purchase (or to
advance or
supply funds for the purchase of) any security for the payment
thereof, (b) to
purchase or lease property, securities or services for the purpose
of assuring
the owner of such Indebtedness or other obligation of the payment
thereof
(including pursuant to any synthetic lease financing), (c) to
maintain working
capital, equity capital or any other financial statement condition
or liquidity
of the primary obligor so as to enable the primary obligor to pay
such
Indebtedness or other obligation or (d) as an account party or
applicant in
respect of any letter of credit or letter of guaranty issued to
support such
Indebtedness or obligation, provided that the term Guarantee shall
not include
endorsements for collection or deposit in the ordinary course of
business. The
amount of any Guarantee shall be deemed to be the lower of (a) an
amount equal
to the stated or determinable amount of the primary obligation in
respect of
which such Guarantee is made and (b) the maximum amount for which
such
guaranteeing Person may be liable pursuant to the terms of the
instrument
embodying such Guarantee (without giving effect to any rights of
indemnification, contribution or subrogation), unless such primary
obligation
and the maximum amount for which such guaranteeing Person may be
liable are not
stated or determinable, in which case the amount of such Guarantee
shall be such
guaranteeing Person's maximum reasonably anticipated liability in
respect
thereof as determined by such Person in good faith.
"Guaranteed Creditors" shall mean and include each of the
Agents, the
Collateral Agent, the Lenders, the Issuing Lenders and each Person
(other than
any Credit Party or any of its Subsidiaries) party to any Swap
Agreement to the
extent that such Person constitutes a Secured Creditor under any of
the Security
Documents.
"Guarantors" shall mean and include Holdings, the U.S.
Borrower and
each Subsidiary Guarantor.
"Guaranty" and "Guaranties" shall mean and include the
Holdings
Guaranty, the U.S. Borrower's Guaranty and each Subsidiaries
Guaranty.
"Hazardous Materials" shall mean (i) all petroleum
products or
byproducts and all other petroleum hydrocarbons, coal ash, radon
gas, asbestos
or asbestos-containing materials, urea formaldehyde foam
insulation,
polychlorinated biphenyls, chlorofluorocarbons and all other
ozone-depleting
substances and (ii) all chemicals, materials, substances or wastes
that are
prohibited, limited or regulated by or pursuant to any
Environmental Law.
"Highest Adjustable Applicable Margins" shall have the
meaning
provided in the definition of Applicable Margin contained herein.
"Holdings" shall have the meaning provided in the first
paragraph of
this Agreement.
"Holdings Equity Contribution" shall have the meaning
provided in
Section 6.09(a).
"Holdings Guaranteed Obligations" shall mean (i) the
principal (or,
Face Amount, as applicable) and interest on each Note issued to
each Lender, and
all Loans made, under this Agreement, all reimbursement obligations
and Unpaid
Drawings with respect to Letters of Credit,
-22-
together with all the other obligations (including obligations
which, but for
the automatic stay under Section 362(a) of the Bankruptcy Code,
would become
due) and liabilities (including, without limitation, indemnities,
fees and
interest thereon) of the Borrowers (or either of them) to each
Lender, each
Agent, each Issuing Lender and the Collateral Agent now existing or
hereafter
incurred under, arising out of or in connection with this Agreement
and each
other Credit Document and the due performance and compliance by
each Borrower
with all the terms, conditions and agreements contained in this
Agreement and
each other Credit Document to which it is a party and (ii) all
obligations
(including obligations which, but for the automatic stay under
Section 362(a) of
the Bankruptcy Code, would become due) and liabilities of the U.S.
Borrower or
any of its Subsidiaries owing under any Swap Agreement entered into
by the U.S.
Borrower or any of its Subsidiaries with any Guaranteed Creditor so
long as such
Guaranteed Creditor participates in such Swap Agreement, and their
subsequent
assigns, if any, whether now in existence or hereafter arising, and
the due
performance and compliance with all terms, conditions and
agreements contained
therein.
"Holdings Guaranteed Party" shall mean each Borrower and
each
Subsidiary of Holdings party to any Swap Agreement with any Secured
Creditor.
"Holdings Guaranty" shall mean the guaranty of Holdings
pursuant to
Section 14.
"Incremental Extensions of Credit" shall mean any
extension of
Incremental Term Loan Commitments or Incremental Term Loans
pursuant thereto, as
contemplated by Sections 2.01(d) and 2.15.
"Incremental Term Loan" shall have the meaning provided
in Section
2.01(d).
"Incremental Term Loan Borrower" shall mean (x) the U.S.
Borrower,
with respect to U.S. Borrower Incremental Term Loans and (y) the
Canadian
Borrower, with respect to Canadian Borrower Incremental Term Loans.
"Incremental Term Loan Borrowing Date" shall mean, with
respect to
each Tranche of Incremental Term Loans, each date on which
Incremental Term
Loans of such Tranche are incurred pursuant to Section 2.01(d),
which date shall
be the date of the effectiveness of the respective Incremental Term
Loan
Commitment Agreement pursuant to which such Incremental Term Loans
are to be
made.
"Incremental Term Loan Commitment" shall mean, for each
Lender, any
commitment to make Incremental Term Loans provided by such Lender
pursuant to
Section 2.15 on a given Incremental Term Loan Borrowing Date, in
such amount as
agreed to by such Lender in the respective Incremental Term Loan
Commitment
Agreement delivered pursuant to Section 2.15, as the same may be
terminated
pursuant to Sections 4.03 and/or 11.
"Incremental Term Loan Commitment Agreement" shall mean
each
Incremental Term Loan Commitment Agreement in the form of Exhibit O
(appropriately completed) executed in accordance with Section 2.15.
"Incremental Term Loan Commitment Requirements" shall
mean, with
respect to any provision of an Incremental Term Loan Commitment on
a given
Incremental Term Loan Borrowing Date, the satisfaction of each of
the following
conditions: (u) no Default or Event of Default then exists or would
result
therefrom; (v) calculations are made by the U.S. Borrower
demonstrating
-23-
compliance on a Pro Forma Basis (determined as of the last day of
the most
recently ended Fiscal Quarter for which financial statements are
available) with
(i) the covenants contained in Sections 10.12 and 10.13, (ii) a
Leverage Ratio
of less than 4.50:1.00 and (iii) a Senior Secured Leverage Ratio of
less than
2.50:1.00; (w) the delivery by the relevant Credit Parties of such
technical
amendments, modifications and/or supplements to the respective
Security
Documents as are reasonably requested by the Administrative Agent
to ensure that
the additional Obligations to be incurred pursuant to the
Incremental Term Loan
Commitments are secured by, and entitled to the benefits of, the
relevant
Security Documents; (x) the delivery by the U.S. Borrower to the
Administrative
Agent of an officer's certificate executed by an Authorized Officer
of the U.S.
Borrower certifying (i) as to compliance with preceding clauses (v)
and (w) and
containing the calculations required by clause (w) and (ii) which
provisions of
the Senior Notes Indenture and the Senior Subordinated Notes
Indenture the
respective incurrence of Incremental Term Loans will be justified
under and
demonstrating in reasonable detail that the full amount of such
Incremental Term
Loans may be incurred in accordance with, and will not violate the
provisions
of, the Senior Notes Indenture and the Senior Subordinated Notes
Indenture; (y)
the satisfaction of all other conditions precedent that may be set
forth in the
respective Incremental Term Loan Commitment Agreement and (z) the
completion by
the Credit Parties of such other actions as the Administrative
Agent may
reasonably request in connection with the provision of such
Incremental Term
Loan Commitment (including, without limitation, delivery of
officers'
certificates, resolutions, evidence of good standing and reasonably
satisfactory
opinions of counsel).
"Incremental Term Loan Lender" shall have the meaning
provided in
Section 2.15(b).
"Incremental Term Loan Maturity Date" shall mean, for any
Tranche of
Incremental Term Loans, the final maturity date set forth for such
Tranche of
Incremental Term Loans in the respective Incremental Term Loan
Commitment
Agreement relating thereto, provided that the final maturity date
for all
Incremental Term Loans of a given Tranche shall be the same date.
"Incremental Term Loan Scheduled Repayment" shall have
the meaning
provided in Section 5.02(b).
"Incremental Term Note" shall have the meaning provided
in Section
2.05.
"Indebtedness" of any Person means, without duplication,
(a) all
obligations of such Person for borrowed money or with respect to
deposits or
advances of any kind, (b) all obligations of such Person evidenced
by bonds,
debentures, notes or similar instruments, (c) all obligations of
such Person
upon which interest charges are customarily paid, (d) all
obligations of such
Person under conditional sale or other title retention agreements
relating to
property acquired by such Person, (e) all obligations of such
Person in respect
of the deferred purchase price of property or services (excluding
trade accounts
payable and accrued obligations incurred in the ordinary course of
business),
(f) all obligations of others secured by (or for which the holder
of such
obligations has an existing right, contingent or otherwise, to be
secured by)
any Lien on property owned or acquired by such Person, whether or
not the
obligations secured thereby have been assumed, (g) all Guarantees
by such Person
of the obligations of others (to the extent such obligations would
constitute
"Indebtedness" pursuant to the other clauses of this definition),
(h) all
Capital Lease Obligations of such Person, (i) all obligations,
contingent or
otherwise, of such Person as an account party or applicant in
respect of letters
of credit and letters of guaranty, (j) the amount of any Permitted
Securitizations of such Person and (k) all obligations, contingent
or otherwise,
of such Person in respect of bankers' acceptances. The Indebtedness
of any
Person shall include the Indebtedness of
-24-
any other entity (including any partnership in which such Person is
a general
partner) to the extent such Person is liable therefor as a result
of such
Person's ownership interest in or other relationship with such
entity, except to
the extent the terms of such Indebtedness provide that such Person
is not liable
therefor. Notwithstanding the foregoing, in connection with any
Permitted
Acquisition, the term "Indebtedness" shall not include post-closing
payment
adjustments or earn-outs to which the seller in such Permitted
Acquisition may
become entitled.
"Individual Dollar Facility RL Exposure" of any Dollar
Facility RL
Lender shall mean, at any time, the sum of (I) the aggregate
principal amount of
all Dollar Facility Revolving Loans made by such Dollar Facility RL
Lender and
then outstanding, (II) such Dollar Facility RL Lender's L/C
Participation
Percentage in each then outstanding Dollar Facility Letter of
Credit multiplied
by the sum of the Stated Amount of the respective Dollar Facility
Letter of
Credit and any Unpaid Drawings relating thereto and (III) such
Dollar Facility
RL Lender's Dollar Facility RL Percentage multiplied by the
aggregate principal
amount of all outstanding Swingline Loans.
"Individual Multicurrency Facility RL Exposure" of any
Multicurrency
Facility RL Lender shall mean, at any time, the sum of (I) the
aggregate
principal amount (or Face Amount, as applicable) of all
Multicurrency Facility
Revolving Loans made by such Multicurrency Facility RL Lender and
then
outstanding (for this purpose, using the U.S. Dollar Equivalent of
the principal
amount or Face Amount, as the case may be, of Canadian Dollar
Denominated
Revolving Loans) and (II) such Multicurrency Facility RL Lender's
L/C
Participation Percentage in each then outstanding Multicurrency
Facility Letter
of Credit multiplied by the sum of the Stated Amount of the
respective
Multicurrency Facility Letter of Credit and any Unpaid Drawings
relating thereto
(for this purpose, using the U.S. Dollar Equivalent of any amounts
expressed in
Canadian Dollars).
"Individual RL Facility Exposures" of any Lender shall
mean, at any
time, the sum of the Individual Multicurrency Facility RL Exposure
and the
Individual Dollar Facility RL Exposure of such Lender at such time.
"Information Memorandum" shall mean the Confidential
Information
Memorandum, dated December 3, 2004, relating to Holdings, the
Borrowers and the
Transaction.
"Initial Borrowing Date" shall mean the date (which shall
occur on the
Effective Date) upon which the initial Borrowing of Loans occurs.
"Initial Equity Investors" shall mean Cypress Merchant
Banking
Partners II L.P., Cypress Merchant Banking II C.V., 55th Street
Partners II
L.P., Cypress Side-by-Side LLC, GS Capital Partners 2000, L.P., GS
Capital
Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH &
Co. KG, GS Capital
Partners 2000 Employee Fund, L.P. and Goldman Sachs Direct
Investment Fund 2000,
L.P.
"Initial Indebtedness to be Refinanced" shall mean and
include (i)
certain Indebtedness of Foreign Subsidiaries under existing lines
of credit,
(ii) reimbursement obligations with respect to certain existing
letters of
credit and bank guaranties and (iii) all other Indebtedness of
Holdings and its
Subsidiaries outstanding immediately before the consummation of the
Acquisition
which is to be repaid or refinanced on the Initial Borrowing Date,
including any
such Indebtedness which is not permitted to remain outstanding
after the Initial
Borrowing Date pursuant to Sections 6.10 or 10.01. Without limiting
the
foregoing, it understood and agreed that the aggregate amount of
the "Initial
Indebtedness to be Refinanced" shall not exceed U.S.$15,000,000.
-25-
"Intercompany Debt" shall mean any Indebtedness, payables
or other
obligations, whether now existing or hereafter incurred, owed by
Holdings or any
Subsidiary of Holdings to Holdings or any other Subsidiary of
Holdings.
"Intercompany Distribution Transaction Documents" shall
mean all of
the material documents and instruments entered into in connection
with the
Intercompany Distribution Transactions, in each case as the same
may be amended,
modified or supplemented from time to time in accordance with the
terms hereof
and thereof.
"Intercompany Distribution Transactions" shall have the
meaning
provided in Section 6.09(b).
"Intercompany Note" shall mean a promissory note
evidencing
intercompany loans made pursuant to Section 10.04(e), in each case
duly executed
and delivered substantially in the form of Exhibit L, with blanks
completed in
conformity herewith (or such other form as may be approved by the
Administrative
Agent or the Required Lenders).
"Intercompany Scheduled Existing Indebtedness" shall have
the meaning
provided in Section 8.18.
"Intercompany Subordination Agreement" shall have the
meaning provided
in Section 6.13(c).
"Interest Coverage Ratio" shall have the meaning provided
in Section
10.12.
"Interest Determination Date" shall mean, with respect to
any
Eurodollar Loan, the second Business Day prior to the commencement
of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall mean, with respect to any
Eurodollar Loan, the
interest period applicable thereto, as determined pursuant to
Section 2.09.
"Investment" shall have the meaning provided in the
preamble to
Section 10.04.
"Issuing Lender" shall mean (i) for purposes of any
Dollar Facility
Letter of Credit, DBTCA, any affiliate of DBTCA and any Dollar
Facility RL
Lender (or affiliate of any Dollar Facility RL Lender) which at the
request of
the U.S. Borrower and with the consent of the Administrative Agent
agrees, in
such Dollar Facility RL Lender's (or Dollar Facility RL Lender
affiliate's) sole
discretion, to become an Issuing Lender for the purpose of issuing
Dollar
Facility Letters of Credit pursuant to Section 3, and (ii) for
purposes of any
Multicurrency Facility Letter of Credit, DBAG, any of its
affiliates which is a
Canadian Resident and any Multicurrency Facility RL Lender which is
a Canadian
Resident (or affiliate of any Multicurrency Facility RL Lender
which is a
Canadian Resident) which at the request of the Canadian Borrower
and with the
consent of the Administrative Agent agrees, in such Multicurrency
Facility RL
Lender's (or Multicurrency Facility RL Lender affiliate's) sole
discretion, to
become an Issuing Lender for the purpose of issuing Multicurrency
Facility
Letters of Credit pursuant to Section 3; provided that as of the
Initial
Borrowing Date and until such time as it agrees otherwise, DBAG
shall not be an
Issuing Lender with respect to any Trade Letter of Credit.
-26-
"Joint Lead Arrangers" shall mean DBSI and Lehman
Brothers, each in
their capacities as Joint Lead Arrangers and Book Runners.
"Judgment Currency" shall have the meaning provided in
Section
13.22(a).
"Judgment Currency Conversion Date" shall have the
meaning provided in
Section 13.22(a).
"L/C Participant" shall have the meaning provided in
Section 3.04(a).
"L/C Participation Percentages" shall have the meaning
provided in
Section 3.04(a).
"L/C Supportable Indebtedness" shall mean (i) obligations
of the U.S.
Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary
course of
business and (ii) such other obligations of the U.S. Borrower or
any of its
Wholly-Owned Subsidiaries as are permitted to exist pursuant to the
terms of
this Agreement.
"LCPI" shall mean Lehman Commercial Paper Inc., in its
individual
capacity, and any successor corporation thereto by merger,
consolidation or
otherwise.
"Leasehold" of any Person shall mean all of the right,
title and
interest of such Person as lessee or licensee in, to and under
leases or
licenses of land, improvements and/or fixtures.
"Lehman Brothers" shall mean Lehman Brothers Inc., in its
individual
capacity, and any successor corporation thereto by merger,
consolidation or
otherwise.
"Lender" shall mean and include (i) each financial
institution with a
Commitment listed on Schedule I (as amended from time to time), as
well as any
Person that becomes a "Lender" hereunder pursuant to Sections 2.13,
2.15 and/or
13.04(b) and (ii) the Swingline Lender. Unless the context
otherwise requires,
each reference in this Agreement to a Lender includes each lending
office
(including any Affiliate of the respective Lender) of the
respective Lender
designated from time to time pursuant to Section 2.12.
"Lender Default" shall mean (i) the wrongful refusal
(which has not
been retracted) of a Lender to make available its portion of any
Borrowing
(including any Mandatory Dollar Facility RL Borrowing), to fund its
portion of
any unreimbursed payment under Section 3.04 or (ii) a Lender having
notified the
Administrative Agent and/or any Credit Agreement Party that it does
not intend
to comply with its obligations under Sections 2.01 or 3.04 in
circumstances
where such non-compliance would constitute a breach of such
Lender's obligations
under the respective Section.
"Letter of Credit" shall have the meaning provided in
Section 3.01(a).
"Letter of Credit Fees" shall have the meaning provided
in Section
4.01(b).
"Letter of Credit Outstandings" shall mean, at any time,
the sum of
(i) the aggregate Stated Amount of all outstanding Letters of
Credit which have
not terminated at such time and (ii) the aggregate amount of all
Unpaid Drawings
(taking the U.S. Dollar Equivalent of any amounts owed in Canadian
Dollars) in
respect of all Letters of Credit at such time.
"Letter of Credit Request" shall have the meaning
provided in Section
3.03(a).
-27-
"Leverage Ratio" shall mean, on any date, the ratio of
(a) Total
Indebtedness on such date to (b) Consolidated EBITDA for the period
of four
consecutive Fiscal Quarters ended on such date (or, if such date is
not the last
day of a Fiscal Quarter, ended on the last day of the Fiscal
Quarter most
recently ended prior to such date), provided that, to the extent
the U.S.
Borrower or any Subsidiary of the U.S. Borrower makes any Permitted
Acquisition,
Asset Disposition or Discontinuation during the period of four
Fiscal Quarters
most recently ended, the Leverage Ratio for such period shall be
calculated on a
Pro Forma Basis.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment,
deposit arrangement, security interest, encumbrance, lien
(statutory or other),
charge, preference, priority or other security agreement of any
kind or nature
whatsoever (including any agreement to give any of the foregoing,
any
conditional sale or other title retention agreement, any financing
or similar
statement or notice filed under the UCC or any similar recording or
notice
statute, and any lease having substantially the same economic
effect as the
foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche
B Term Loan,
each Tranche C Term Loan, each Incremental Term Loan, each
Revolving Loan and
each Swingline Loan.
"Local Law Pledge Agreement" shall have the meaning
provided in
Section 6.14(c).
"Long-Term Indebtedness" means any Indebtedness that, in
accordance
with U.S. GAAP, constitutes (or, when incurred, constituted) a
long-term
liability.
"Majority Lenders" of any Tranche shall mean those
Non-Defaulting
Lenders which would constitute the Required Lenders under, and as
defined in,
this Agreement if all outstanding Obligations of the other Tranches
under this
Agreement were repaid in full and all Commitments with respect
thereto were
terminated.
"Management Agreements" shall have the meaning provided
in Section
6.17.
"Mandatory Dollar Facility RL Borrowing" shall have the
meaning
provided in Section 2.01(h).
"Margin Regulations" shall mean, collectively, Regulation
T,
Regulation U and Regulation X.
"Margin Stock" shall have the meaning provided in
Regulation U.
"Material Adverse Effect" shall mean (x) in the case of
any condition
or representation to be satisfied or made, as the case may be, on,
or as of, the
Initial Borrowing Date, any state of facts, change, occurrence or
development
that (i) directly or indirectly prevents or materially impairs or
delays the
ability of the Seller to perform its obligations under the
Acquisition Documents
or (ii) has a material adverse effect on the condition (financial
or otherwise),
results of operations, business, properties, assets or liabilities
(whether
accrued, absolute, contingent or otherwise, and whether or not due
or to become
due or asserted or unasserted) of Holdings, the U.S. Borrower and
their
respective Subsidiaries taken as a whole, but excluding any effect
(a) resulting
from general economic conditions (whether as a result of acts of
terrorism, war
(whether or not declared), armed conflicts or otherwise) and (b)
impacting
companies in the industry in which the business and operations of
the U.S.
Borrower and its Subsidiaries is conducted generally, in each
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such case except to the extent such efforts, facts, change,
occurrence or
development has a disproportionately adverse impact on Holdings,
the U.S.
Borrower and the business and operations of the U.S. Borrower and
its
Subsidiaries and (y) for all other purposes herein or in any other
Credit
Document, any event, development or circumstance that has had, or
could
reasonably be expected to have, a material adverse effect on (i)
the business,
assets, liabilities, condition (financial or otherwise) or results
of operations
of Holdings, the Borrowers and their respective Subsidiaries, taken
as a whole,
(ii) the ability of any Credit Party to perform any of its material
obligations
under any Credit Document or (iii) the validity or enforceability
of any of the
Credit Documents or the rights and remedies of the Agents and the
Lenders
hereunder or thereunder.
"Material Indebtedness" shall mean Indebtedness (other
than the Loans
and Letters of Credit), or obligations in respect of one or more
Swap Agreements
(if any), of any one or more of Holdings, the Borrowers and the
Subsidiaries of
the U.S. Borrower in an aggregate principal amount exceeding
U.S.$17,500,000.
For purposes of determining Material Indebtedness, the "principal
amount" of the
obligations of the U.S. Borrower or any Subsidiary of the U.S.
Borrower in
respect of any Swap Agreements (if any) at any time shall be the
maximum
aggregate amount (giving effect to any netting agreements) that the
U.S.
Borrower or such Subsidiary would be required to pay if such Swap
Agreement were
terminated at such time.
"Maturity Date" shall mean (i) with respect to Tranche A
Term Loans,
the Tranche A Term Loan Maturity Date, (ii) with respect to Tranche
B Term
Loans, the Tranche B Term Loan Maturity Date, (iii) with respect to
Tranche C
Term Loans, the Tranche C Term Loan Maturity Date, (iv) with
respect to
Incremental Term Loans of a given Tranche, the respective
Incremental Term Loan
Maturity Date therefor, (v) with respect to Revolving Loans, the
Revolving Loan
Maturity Date and (vi) with respect to Swingline Loans, the
Swingline Expiry
Date.
"Maximum Swingline Amount" shall mean U.S.$20,000,000.
"Minimum Applicable Facing Fee" shall mean (x) in the
case of all
Letters of Credit (other than Canadian Dollar Denominated Letters
of Credit),
U.S.$500 and (y) in the case of Canadian Dollar Denominated Letters
of Credit,
Cdn.$750.
"Minimum Borrowing Amount" shall mean (i) in the case of
Dollar
Denominated Loans (excluding Swingline Loans and Dollar Denominated
Revolving
Loans maintained as Base Rate Loans), U.S.$5,000,000, (ii) in the
case of
Revolving Loans maintained from time to time as Base Rate Loans,
U.S.$500,000,
(iii) in the case of Canadian Dollar Denominated Loans (excluding
Multicurrency
Facility Revolving Loans maintained in Canadian Dollars as Canadian
Prime Rate
Loans), Cdn.$ 1,000,000, (iv) in the case of Multicurrency Facility
Revolving
Loans maintained in Canadian Dollars as Canadian Prime Rate Loans,
Cdn.$500,000,
and (v) in the case of Swingline Loans, U.S.$100,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage" shall mean each mortgage, debenture (together
with a
debenture delivery agreement), deed of trust or deed to secure debt
required to
be delivered with respect to any Real Property pursuant to the
terms of this
Agreement, together with any assignment of leases and rents to be
executed in
connection therewith (as amended, modified or supplemented from
time to time in
accordance with the terms hereof and thereof).
-29-
"Mortgage Policy" shall mean each mortgage title
insurance policy (and
all endorsements thereto) for each Mortgaged Property required to
be delivered
pursuant to this Agreement.
"Mortgaged Property" shall mean each Real Property owned
by Holdings
or any of its Subsidiaries and required to be mortgaged pursuant to
this
Agreement.
"Multicurrency Facility Letter of Credit" shall mean each
Letter of
Credit (which may be denominated in U.S. Dollars or Canadian
Dollars) issued to
the Canadian Borrower pursuant to Section 3.01 and designated as
such by the
Canadian Borrower in the respective Letter of Credit Request.
"Multicurrency Facility Letter of Credit Outstandings"
shall mean, at
any time, the sum of (i) the aggregate Stated Amount of all
outstanding
Multicurrency Facility Letters of Credit and (ii) the aggregate
amount of all
Unpaid Drawings (taking the U.S. Dollar Equivalent of all amounts
payable in
Canadian Dollars) in respect of all Multicurrency Facility Letters
of Credit.
"Multicurrency Facility Revolving Loan" shall have the
meaning
provided in Section 2.01(e).
"Multicurrency Facility Revolving Loan Commitment" shall
mean, for
each Lender, the amount set forth opposite such Lender's name on
Schedule I
hereto directly below the column entitled "Multicurrency Facility
Revolving Loan
Commitment", as same may be (x) reduced from time to time and/or
terminated
pursuant to Sections 4.02, 4.03 and/or 11 or (y) adjusted from time
to time as a
result of assignments to or from such Lender pursuant to Sections
2.13 or
13.04(b).
"Multicurrency Facility Revolving Note" shall have the
meaning
provided in Section 2.05(a).
"Multicurrency Facility RL Lender" shall mean each Lender
which has a
Multicurrency Facility Revolving Loan Commitment (without giving
effect to any
termination of the Total Multicurrency Facility Revolving Loan
Commitment if any
Multicurrency Facility Letter of Credit Outstandings remain
outstanding) or
which has any outstanding Multicurrency Facility Revolving Loans
(or an L/C
Participation Percentage in any then outstanding Multicurrency
Facility Letter
of Credit Outstandings).
"Multicurrency Facility RL Percentage" of any
Multicurrency Facility
RL Lender at any time shall mean that percentage which is equal to
a fraction
(expressed as a percentage) the numerator of which is the
Multicurrency Facility
Revolving Loan Commitment of such Multicurrency Facility RL Lender
at such time
and the denominator of which is the Total Multicurrency Facility
Revolving Loan
Commitment at such time, provided that if any such determination is
to be made
after the Total Multicurrency Facility Revolving Loan Commitment
(and the
related Multicurrency Facility Revolving Loan Commitments of the
Lenders) has
(or have) terminated, the determination of such percentages shall
be made
immediately before giving effect to such termination.
"Multiemployer Plan" shall mean a Plan that is a
multiemployer plan as
defined in Section 4001(a)(3) of ERISA that is established or
maintained in the
United States of America.
-30-
"Net Proceeds" shall mean, with respect to any event, (a)
the cash
proceeds received in respect of such event including (i) any cash
received in
respect of any non-cash proceeds (including any cash payments
received by way of
deferred payment of principal pursuant to a note or installment
receivable or
purchase price adjustment receivable or otherwise, but excluding
any interest
payments), but only as and when received, (ii) in the case of a
casualty,
insurance proceeds and (iii) in the case of a condemnation or
similar event,
condemnation awards and similar payments, net of (b) the sum of (i)
all
reasonable fees and out-of-pocket expenses paid to third parties
(other than
Affiliates) in connection with such event, (ii) in the case of a
sale, transfer
or other disposition of an asset (including pursuant to a sale and
leaseback
transaction or a casualty or a condemnation or similar proceeding),
the amount
of all payments required to be made as a result of such event to
repay
Indebtedness (other than Loans) secured by such asset or otherwise
subject to
mandatory prepayment as a result of such event and (iii) the amount
of all taxes
paid (or reasonably estimated to be payable) and the amount of any
reserves
established to fund contingent liabilities reasonably estimated to
be payable,
in each case that are directly attributable to such event (as
determined
reasonably and in good faith by a Authorized Officer and, in the
case of any
such reserves, as set forth in an officer's certificate delivered
by such
Authorized Officer to the Administrative Agent), it being
understood and agreed
that on the day that all such post-closing adjustments have been
determined
(which shall not be later than 360 days following the date of the
respective
asset sale), the amount (if any) by which the reserved amount in
respect of such
event exceeds the actual post-closing adjustments payable by
Holdings or any of
its Subsidiaries in respect thereof shall constitute "Net Proceeds"
on such date
received by Holdings and/or any of its Subsidiaries from such
event.
Notwithstanding the foregoing, for purposes of Sections 5.02(c) and
(e), no net
proceeds received in respect of any single transaction or series of
related
transactions shall constitute "Net Proceeds" unless such net
proceeds shall
exceed U.S.$2,000,000 (in which case the entire amount of net
proceeds from such
transaction or series of related transactions shall constitute "Net
Proceeds").
"Net Working Capital" shall mean, at any date, (a) the
consolidated
current assets of the U.S. Borrower and the Subsidiaries of the
U.S. Borrower as
of such date (excluding cash and Permitted Investments) minus (b)
the
consolidated current liabilities of the U.S. Borrower and the
Subsidiaries of
the U.S. Borrower as of such date (excluding current liabilities in
respect of
Indebtedness). Net Working Capital at any date may be a positive or
negative
number. Net Working Capital increases when it becomes more positive
or less
negative and decreases when it becomes less positive or more
negative.
"Non-B/A Lender" shall mean any Canadian Lender which is
unwilling or
unable to create Bankers' Acceptances by accepting Drafts and which
has
identified itself as a "Non-B/A Lender" by written notice to the
Canadian
Borrower.
"Non-Defaulting Lender" shall mean each Lender other than
a Defaulting
Lender.
"Non-Regulation S-X Adjustment" shall have the meaning
provided in the
definition of "Pro Forma Basis".
"Non-Specified Restructuring Charges" shall mean any
non-recurring
Restructuring Charges.
"Non-U.S. Borrower" means any Borrower that is not a
United States
person (as such term is defined in Section 7701(a)(30) of the
Internal Revenue
Code).
-31-
"Non-Wholly Owned Subsidiary" shall mean, as to any
Person, each
Subsidiary of such Person which is not a Wholly-Owned Subsidiary of
such Person.
"Note" shall mean each Tranche A Term Note, each Tranche
B Term Note,
each Tranche C Term Note, each Incremental Term Note, each
Multicurrency
Facility Revolving Note, each Dollar Facility Revolving Note and
the Swingline
Note.
"Notice of Borrowing" shall have the meaning provided in
Section
2.03(a).
"Notice of Conversion/Continuation" shall have the
meaning provided in
Section 2.06.
"Notice Office" shall mean the office of the
Administrative Agent
located at 60 Wall Street, MS NYC60-4305, New York, NY 10005-2858,
or such other
office as the Administrative Agent may designate to Holdings and
the Lenders
from time to time; provided that in the case of all borrowings of
Tranche A Term
Loans, Canadian Dollar Denominated Incremental Term Loans and
Multicurrency
Facility Revolving Loans, and all issuances of Multicurrency
Facility Letters of
Credit, and all notices relating thereto, the "Notice Office" shall
also include
the office of the Canadian Sub-Agent located at 222 Bay Street,
Suite 1100,
Toronto, Ontario, Canada M5K 1E7.
"Obligation Currency" shall have the meaning provided in
Section
13.22(a).
"Obligations" shall mean all amounts, direct or indirect,
contingent
or absolute, of every type or description, and at any time
existing, owing to
any Agent, the Collateral Agent, any Issuing Lender or any Lender
pursuant to
the terms of this Agreement or any other Credit Document.
"Offer to Prepay Notice" shall have the meaning provided
in Section
5.02(g).
"Offer to Prepay Term Loans" shall have the meaning
provided in
Section 5.02(g).
"Payment Office" shall mean the office of the
Administrative Agent
located at 60 Wall Street, MS NYC60-4305, New York, NY 10005-2858,
or such other
office as the Administrative Agent may designate to Holdings and
the Lenders
from time to time; provided that in the case of all payments of
principal (or
Face Amount, as applicable), interest, Unpaid Drawings and/or other
amounts
owing with respect to Tranche A Term Loans, Canadian Dollar
Denominated
Incremental Term Loans, Multicurrency Facility Revolving Loans or
Multicurrency
Facility Letters of Credit (including all Letter of Credit Fees and
Facing Fees
with respect thereto), as the case may be, "Payment Office" shall
mean the
office of the Canadian Sub-Agent located at 222 Bay Street, Suite
1100, Toronto,
Ontario, Canada M5K 1E7.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation established
pursuant to Section 5002 of ERISA, or any successor thereto.
"Permitted Acquisition" shall mean any acquisition by the
U.S.
Borrower or any Credit Party which is a Wholly-Owned Subsidiary of
the U.S.
Borrower of all the outstanding Equity Interests in, all or
substantially all
the assets of, or all or substantially all the assets constituting
a business
unit, division, product line or line of business of, a Person if
(a) such
acquisition was not preceded by, or consummated pursuant to, a
hostile offer
(including a proxy contest), (b) no Default or Event of Default has
occurred and
is continuing or would result therefrom, (c) all transactions
related thereto
are consummated in accordance with applicable laws, (d) immediately
after giving
-32-
effect to such acquisition, any acquired or newly formed Subsidiary
that is a
Domestic Subsidiary or a Canadian Subsidiary becomes a U.S. Credit
Party or a
Canadian Credit Party, as the case may be, hereunder and all
actions required to
be taken with respect to such acquired or newly formed Subsidiary
and any assets
acquired in such acquisition under Sections 9.12 and 9.13 shall
have been taken,
(e) on a Pro Forma Basis, as of the last day of the most recently
ended Fiscal
Quarter for which financial statements are available, (i) the U.S.
Borrower
shall be in compliance with the covenants contained in Sections
10.12 and 10.13,
(ii) the Leverage Ratio shall be less than 4.50 to 1.00 and (iii)
the Senior
Secured Leverage Ratio shall be less than 2.50 to 1.00, provided
that the U.S.
Borrower shall not be required to comply with the terms of this
clause (e) in
connection with any acquisition to the extent that the aggregate
purchase price
payable by the U.S. Borrower and its Subsidiaries in respect of
such
acquisition, taken together with the aggregate purchase price paid
by the U.S.
Borrower and its Subsidiaries in respect of all other acquisitions
consummated
without complying with the terms of this clause (e), does not
exceed
$25,000,000, (f) the business of such Person or such assets, as
applicable,
constitute a business permitted by Section 10.03(b), (g)
immediately before and
after giving effect to such Permitted Acquisition, the Total
Revolving Loan
Commitment exceeds the sum of the Aggregate Dollar Facility RL
Exposure and
Aggregate Multicurrency Facility RL Exposure by not less than
U.S.$50,000,000,
(h) in the case of the acquisition of 100% of the Equity Interests
of any
Person, such acquired Person shall own no other Equity Interests of
any other
Person unless either (x) such acquired Person owns 100% of the
Equity Interests
of such other Person or (y) if such acquired Person owns Equity
Interests in any
other Person which is a Non-Wholly Owned Subsidiary of such
acquired Person, (1)
such acquired Person shall not have been created or established in
contemplation
of, or for purposes of, the respective Permitted Acquisition and
(2) any such
Non-Wholly Owned Subsidiary of the acquired Person shall have been
a Non-Wholly
Owned Subsidiary of such acquired Person prior to the date of the
respective
Permitted Acquisition and shall not have been created or
established in
contemplation thereof and (i) the principal amount of Indebtedness
that is
assumed in connection with such Permitted Acquisition and (ii) the
U.S. Borrower
has delivered to the Administrative Agent a certificate of an
Authorized Officer
to the effect set forth in clauses (a), (b), (c), (d), (e), (f),
(g) and (h)
above, together with all relevant financial information for the
Person or assets
to be acquired. For purposes of Section 10.04(a), the purchase
price in respect
of any Permitted Acquisition shall be deemed to include (i) the
U.S. Borrower's
good faith estimate (as of the date of consummation of such
Permitted
Acquisition) of the aggregate amount that will be payable by the
U.S. Borrower
and the Subsidiaries of the U.S. Borrower pursuant to any
post-closing payment
adjustments or earn-outs with respect to such Permitted Acquisition
(provided
that the U.S. Borrower and the Subsidiaries of the U.S. Borrower
shall only be
permitted to make any such post-closing adjustment payment or
earn-out payment
to the extent that, on a Pro Forma Basis, as of the last day of the
Fiscal
Quarter most recently ended prior to the date of such payment and
for which
financial statements are available (or required to be made
available), (A) the
U.S. Borrower is in compliance with the covenants contained in
Sections 10.12
and 10.13, (B) the Leverage Ratio shall be less than 4.50 to 1.00
and (C) the
Senior Secured Leverage Ratio shall be less than 2.50 to 1.00).
"Permitted Encumbrances" shall mean:
(a) Liens imposed by law for taxes, rates, assessments or
other
governmental charges or levies the payment of which is not yet
due, or for
which installments have been paid based on reasonable
estimates pending
final assessments, or if due, the validity of which is being
contested in
accordance with Section 9.05;
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(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's,
suppliers' and other like Liens imposed by law (including
Liens of customs
and revenue authorities to secure customs duties in connection
with the
importation of goods), arising in the ordinary course of
business and
securing obligations that are not overdue by more than 60 days
or are being
contested in accordance with Section 9.05;
(c) pledges and deposits made in the ordinary course of
business in
compliance with workers' compensation, unemployment insurance
and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts,
leases, statutory obligations, surety and appeal bonds,
performance bonds
and other obligations of a like nature, in each case in the
ordinary course
of business;
(e) judgment liens in respect of judgments that do not
constitute an
Event of Default under clause (k) of Section 11;
(f) easements, zoning restrictions, rights-of-way,
licences, permits,
reservations, covenants, servitudes, and rights in the nature
of easements
(including, without limiting the generality of the foregoing,
licenses,
easements, rights-of-way and rights in the nature of easements
for
sidewalks, public ways, sewers, drains, gas, steam and water
mains or
electric light and power, or telephone and telegraph conduits,
poles, wires
and cables) and land use and building restrictions, by-laws,
regulations
and ordinances of federal, provincial, regional, state,
municipal and other
Governmental Authorities, minor defects or irregularities of
title and
other similar encumbrances on real property imposed by law or
arising in
the ordinary course of business that do not secure any
monetary obligations
and do not materially detract from the value of the affected
property or
materially interfere with the ordinary conduct of business of
the U.S.
Borrower or any Subsidiary of the U.S. Borrower;
(g) landlords' and lessors' and other like Liens in
respect of rent
not in default or being reasonably contested and the rights of
any tenant,
occupant or licensee under any lease, occupancy agreement or
licence which
do not materially impair the use of the real property subject
thereto for
the purpose for which it is used by that Person;
(h) reservations, limitations, provisos and conditions
expressed in
any original grant from the Crown or other grant of real or
immovable
property, or interests therein; and
(i) the right reserved to or vested in any Governmental
Authority by
the terms of any lease, license, franchise, grant or permit
acquired by
that Person or by any statutory provision to terminate any
such lease,
license, franchise, grant or permit, or to require annual or
other payments
as a condition to the continuance thereof.
provided that the term "Permitted Encumbrances" shall not include
any Lien
securing Indebtedness.
"Permitted Holder" shall mean (i) any Initial Equity
Investor and any
Affiliate of any Initial Equity Investor that is neither an
operating company
nor a company controlled by an operating company and (ii) any
general partner of
any of the foregoing.
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"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal
of and
interest on which are unconditionally guaranteed by, the
United States of
America (or by any agency thereof to the extent such
obligations are backed
by the full faith and credit of the United States of America),
in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270
days from the
date of acquisition thereof and having, at such date of
acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and
time deposits maturing within 180 days from the date of
acquisition thereof
issued or guaranteed by or placed with, and money market
deposit accounts
issued or offered by, any domestic office of any commercial
bank organized
under the laws of the United States of America or any State
thereof that
has a combined capital and surplus and undivided profits of
not less than
U.S.$500,000,000;
(d) repurchase agreements with a term of not more than 30
days for
securities described in clause (a) above and entered into with
a financial
institution satisfying the criteria described in clause (c)
above; and
(e) money market funds that comply with the criteria set
forth in SEC
Rule 2a-7 under the Investment Company Act of 1940,
substantially all of
whose assets are invested in investments of the type described
in clauses
(a) through (d) above.
"Permitted Joint Venture" shall mean any joint venture
(a) in which
the U.S. Borrower or any Subsidiary of the U.S. Borrower, together
with any
other Subsidiary of the U.S. Borrower, holds Equity Interests that
represents
50% or less of the ordinary voting power and aggregate equity value
represented
by the issued and outstanding Equity Interests in such joint
venture and (b)
that is engaged in a business permitted under Section 10.03(b),
including the
Existing Joint Ventures.
"Permitted Liens" shall have the meaning provided in
Section 10.02.
"Permitted Securitization" shall mean any transaction or
series of
transactions that may be entered into by the U.S. Borrower or any
Subsidiary of
the U.S. Borrower pursuant to which it may sell, convey, contribute
to capital
or otherwise transfer (which sale, conveyance, contribution to
capital or
transfer may include or be supported by the grant of a security
interest)
Receivables or interests therein and all collateral securing such
Receivables,
all contracts and contract rights, purchase orders, security
interests,
financing statements or other documentation in respect of such
Receivables, any
guarantees, indemnities, warranties or other obligations in respect
of such
Receivables, any other assets that are customarily transferred or
in respect of
which security interests are customarily granted in connection with
asset
securitization transactions involving receivables similar to such
Receivables
and any collections or proceeds of any of the foregoing
(collectively, the
"Related Assets") (i) to a trust, partnership, corporation or other
Person
(other than the U.S. Borrower or any Subsidiary of the U.S.
Borrower, other than
a SPE Subsidiary), which transfer is funded in whole or in part,
directly or
indirectly, by the incurrence or issuance by the transferee or any
successor
transferee of Indebtedness, fractional undivided interests or other
securities
that are to
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receive payments from, or that represent interests in, the cash
flow derived
from such Receivables and Related Assets or interests in such
Receivables and
Related Assets, or (ii) directly to one or more investors or other
purchasers
(other than the U.S. Borrower or any Subsidiary of the U.S.
Borrower), it being
understood that a Permitted Securitization may involve (A) one or
more
sequential transfers or pledges of the same Receivables and Related
Assets, or
interests therein (such as a sale, conveyance or other transfer to
an SPE
Subsidiary followed by a pledge of the transferred Receivables and
Related
Assets to secure Indebtedness incurred by the SPE Subsidiary), and
all such
transfers, pledges and Indebtedness incurrences shall be part of
and constitute
a single Permitted Securitization, and (B) periodic transfers or
pledges of
Receivables and/or revolving transactions in which new Receivables
and Related
Assets, or interests therein, are transferred or pledged upon
collection of
previously transferred or pledged Receivables and Related Assets,
or interests
therein, provided that any such transactions shall provide for
recourse to such
Subsidiary of the U.S. Borrower (other than any SPE Subsidiary) or
the U.S.
Borrower (as applicable) only in respect of the cash flows in
respect of such
Receivables and Related Assets and to the extent of other customary
securitization undertakings in the jurisdiction relevant to such
transactions.
The "amount" or "principal amount" of any Permitted Securitization
shall be
deemed at any time to be (1) the aggregate principal, or stated
amount, of the
Indebtedness, fractional undivided interests (which stated amount
may be
described as a "net investment" or similar term reflecting the
amount invested
in such undivided interest) or other securities incurred or issued
pursuant to
such Permitted Securitization, in each case outstanding at such
time, or (2) in
the case of any Permitted Securitization in respect of which no
such
Indebtedness, fractional undivided interests or securities are
incurred or
issued, the cash purchase price paid by the buyer in connection
with its
purchase of Receivables less the amount of collections received by
the U.S.
Borrower or any Subsidiary of the U.S. Borrower in respect of such
Receivables
and paid to such buyer, excluding any amounts applied to purchase
fees or
discount or in the nature of interest. Each Lender authorizes each
of the
Administrative Agent and Collateral Agent to enter into an
intercreditor
agreement in respect of each Permitted Securitization from time to
time in
effect and to take all actions it deems appropriate or necessary in
connection
with any such intercreditor agreement.
"Person" shall mean any individual, partnership, joint
venture, firm,
corporation, limited liability company, association, trust or other
enterprise
or any government or political subdivision or any agency,
department or
instrumentality thereof.
"Plan" shall mean any employee pension benefit plan
established or
maintained in the United States of America subject to the
provisions of Title IV
or Section 302 of ERISA or Section 412 of the Code, and in respect
of which
Holdings or a Subsidiary of Holdings or any ERISA Affiliate is (or,
if such plan
were terminated, would under Section 4069 of ERISA be deemed to be)
an
"employer" as defined in Section 3(5) of ERISA.
"Plan Termination Event" shall have the meaning provided
in Section
11(l).
"Pledge Agreement Collateral" shall mean all U.S. Pledge
Agreement
Collateral and all other Equity Interests or other property similar
to that
pledged (or purported to have been pledged) pursuant to the U.S.
Pledge
Agreement which is pledged (or purported to be pledged) pursuant to
one or more
Canadian Pledge Agreements, Local Law Pledge Agreements, other
Foreign Security
Documents or Additional Security Documents.
"Pledge Agreements" shall mean the U.S. Pledge Agreement
and each
Foreign Pledge Agreement.
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"PPSA" shall mean the Personal Property Security Act
(Ontario) and the
regulations thereunder and any other personal property security
legislation and
applicable regulations of any other province or territory of Canada
where a
Canadian Credit Party has, from time to time, tangible personal
property, in
each case, as may be amended from time to time and includes any
successor
legislation.
"Preferred Equity," as applied to the Equity Interests of
any Person,
shall mean Equity Interests of such Person (other than common stock
of such
Person) of any class or classes (however designed) that ranks
prior, as to the
payment of dividends or as to the distribution of assets upon any
voluntary or
involuntary liquidation, dissolution or winding up of such Person,
to Equity
Interests of any other class of such Person.
"Prime Lending Rate" shall mean the rate which DBTCA (or
another bank
of recognized standing reasonably selected by the Administrative
Agent)
announces from time to time as its prime lending rate, the Prime
Lending Rate to
change when and as such prime lending rate changes. The Prime
Lending Rate is a
reference rate and does not necessarily represent the lowest or
best rate
actually charged to any customer. DBTCA may make commercial loans
or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Pro Forma Basis" shall mean, with respect to the
calculation of any
Financial Ratio (to the extent calculation of such Financial Ratio
is required
on a "Pro Forma Basis" pursuant to the terms of this Agreement) for
any period
of four consecutive Fiscal Quarters (the "Reference Period"):
(a) in making any determination of Consolidated EBITDA,
pro forma
effect shall be given to any Permitted Acquisition, Asset
Disposition or
Discontinuation, in any case that occurred during such
Reference Period
(or, in the case of any determination made pursuant to the
definitions of
the terms "Permitted Acquisition" or "Incremental Term Loan
Commitment
Requirements" or pursuant to Section 10.01(a)(xiii) or Section
10.08(a)(vi), occurring during such Reference Period or
thereafter and
through and including the date of the applicable Permitted
Acquisition,
Incremental Extension of Credit, issuance of Additional Senior
Subordinated
Notes or Restricted Payment, as the case may be), as if such
Permitted
Acquisition, Asset Disposition or Discontinuation occurred on
the first day
of such Reference Period; and
(b) in making any determination of Total Indebtedness or
Consolidated
Cash Interest Expense, pro forma effect shall be given to any
incurrence,
repayment or assumption of Indebtedness that occurred during
such Reference
Period and (i) in the case of any determination made pursuant
to the
definition of the term "Permitted Acquisition", occurring
thereafter and
through and including the date of the applicable Permitted
Acquisition
(including in connection with such Permitted Acquisition),
(ii) in the case
of any determination made pursuant to the definition of the
term
"Incremental Term Loan Commitment Requirements", occurring
thereafter and
through and including the date of the applicable Incremental
Extension of
Credit (including in connection with such Incremental
Extension of Credit),
(iii) in the case of any determination made pursuant to
Section
10.01(a)(xii), occurring thereafter and through and including
the date of
the applicable issuance of Additional Senior Subordinated
Notes (including
such issuance of Additional Senior Subordinated Notes) and
(iv) in the case
of any determination made pursuant to Section 10.08(a)(vi),
occurring
thereafter and through and including the date of the
applicable
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Restricted Payment (including in connection with such
Restricted Payment),
in each case as if such incurrence, repayment or assumption of
Indebtedness
occurred on the first day of such Reference Period,
in each case with such pro forma adjustments (i) as would be
permitted to be
reflected in pro forma financial information complying with the
requirements of
Article 11 of Regulation S-X under the Securities Act (and the
interpretations
of the SEC thereunder) and (ii) that represent cost savings
reasonably expected
by such Authorized Officer to be realized within 12 months of the
consummation
of the applicable Permitted Acquisition, Asset Disposition or
Discontinuation
(the adjustments described in this clause (ii) being referred to
herein as
"Non-Regulation S-X Adjustments"), in each case to the extent
reflected in a
certificate of an Authorized Officer (with appropriate information
and
calculations in reasonable detail supporting such adjustments)
delivered to the
Administrative Agent.
For purposes of clause (b) above, if any Indebtedness the
incurrence, repayment
or assumption of which is being given pro forma effect bears
interest at a
floating rate, the interest on such Indebtedness shall be
calculated as if the
rate in effect on the date of determination had been the applicable
rate for the
entire Reference Period (taking into account any Swap Agreement
applicable to
such Indebtedness if such Swap Agreement has a remaining term in
excess of 12
months).
"Projections" shall have the meaning provided in Section
8.04(c).
"Qualified IPO" shall mean a bona fide underwritten sale
to the public
of common stock of Holdings pursuant to a registration statement
(other than on
Form S-8 or any other form relating to securities issuable under
any benefit
plan of Holdings or any of its Subsidiaries, as the case may be)
that is
declared effective by the SEC.
"Qualified Preferred Stock" shall mean Preferred Equity
of Holdings
that (a) is issued at an aggregate purchase price no less than its
aggregate
liquidation preference, (b) does not require any payment of
dividends (other
than in additional shares of such preferred stock) prior to the
date that is one
year after the Tranche C Term Loan Maturity Date, (c) is not
mandatorily
redeemable pursuant to a sinking fund obligation or otherwise prior
to the date
that is one year after the Tranche C Term Loan Maturity Date, (d)
contains no
maintenance covenants, other covenants materially adverse to the
Lenders or
remedies (other than voting rights and increases in pay-in-kind
dividends) and
(e) is convertible only into common equity of Holdings or
securities that would
constitute Qualified Preferred Stock.
"Quarterly Payment Date" shall mean the last Business Day
of each
March, June, September and December.
"Quarterly Pricing Certificate" shall have the meaning
provided in the
definition of Applicable Margin.
"Real Property" of any Person shall mean all of the
right, title and
interest of such Person in and to land, improvements and fixtures,
including
Leaseholds.
"Receivables" shall mean accounts receivable (including
all rights to
payment created by or arising from the sales of goods, leases of
goods or the
rendition of services, no matter how evidenced (including in the
form of chattel
paper) and whether or not earned by performance).
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"Recovery Event" shall mean the receipt by Holdings or
any of its
Subsidiaries of any insurance or condemnation proceeds payable (i)
by reason of
theft, physical destruction or damage or any other similar event
with respect to
any properties or assets of Holdings or any of its Subsidiaries,
(ii) by reason
of any condemnation, taking, seizing or similar event with respect
to any
properties or assets of Holdings or any of its Subsidiaries and
(iii) under any
policy of insurance required to be maintained under Section 9.07.
"Reference Discount Rate" shall mean, in respect of any
Bankers'
Acceptances or completed Drafts to be purchased by a Canadian
Lender pursuant to
Section 2.01 and Schedule III hereto, by (i) a Schedule I chartered
bank, the
average Bankers' Acceptance discount rate for the appropriate term
as quoted on
Reuters Screen CDOR Page in respect of Schedule I chartered banks
(or such other
page as may be selected by the Canadian Sub-Agent as a replacement
page for such
Banker's Acceptances if such screen is not available) at 10:00 a.m.
(Toronto
time); and (ii) by any other Lender or Person, the lesser of (x)
the rate
specified in (i) plus 0.10% and (y) the arithmetic average of the
discount rates
(calculated on an annual basis and rounded to the nearest
one-hundredth of 1%,
with five-thousandths of 1% being rounded up) quoted by each
Canadian Reference
Lender at 10:00 A.M. (Toronto time) as the discount rate at which
such Canadian
Reference Lender would purchase, on the relevant Drawing Date, its
own bankers'
acceptances or Drafts having an aggregate Face Amount equal to, and
with a term
to maturity the same as, the Bankers' Acceptances or Drafts, as the
case may be,
to be acquired by such Canadian Lender on such Drawing Date.
"Refinancing" shall mean and include the various
refinancing
transactions described in Sections 6.10(a) and (b).
"Refinancing Documents" shall mean all of the agreements,
documents
and instruments executed or delivered in connection with the
Refinancing.
"Register" shall have the meaning provided in Section
13.17.
"Regulation D" shall mean Regulation D of the Board of
Governors of
the Federal Reserve System as from time to time in effect and any
successor to
all or a portion thereof establishing reserve requirements.
"Regulation T" shall mean Regulation T of the Board of
Governors of
the Federal Reserve System as from to time in effect and any
successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of
Governors of
the Federal Reserve System as from time to time in effect and any
successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of
Governors of
the Federal Reserve System as from time to time in effect and any
successor to
all or any portion thereof.
"Related Assets" shall have the meaning provided in the
definition of
Permitted Securitization.
"Release" shall mean any release, spill, emission,
leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal,
leaching or
migration into or through the environment or within or upon any
building,
structure, facility or fixture.
-39-
"Remaining Present Value" shall mean, as of any date with
respect to
any lease, the present value as of such date of the scheduled
future lease
payments with respect to such lease, determined with a discount
rate equal to a
market rate of interest for such lease reasonably determined at the
time such
lease was entered into.
"Replaced Lender" shall have the meaning provided in
Section 2.13.
"Replacement Lender" shall have the meaning provided in
Section 2.13.
"Required Appraisal" shall have the meaning provided in
Section 9.13.
"Required Lenders" shall mean Non-Defaulting Lenders, the
sum of whose
outstanding principal of Term Loans ((x) or, if prior to the
occurrence of the
Credit Events on the Initial Borrowing Date, whose Tranche A Term
Loan
Commitments, Tranche B Term Loan Commitments and Tranche C Term
Loan Commitments
and (y) if prior to the termination thereof pursuant to Section
4.03(f), whose
Incremental Term Loan Commitments) and Revolving Loan Commitments
(or after the
termination thereof, outstanding Individual RL Facility Exposures)
as of any
date of determination represent greater than 50% of the sum of all
outstanding
principal (or, Face Amount, as applicable) of Term Loans ((x) or if
prior to the
occurrence of the Credit Events on the Initial Borrowing Date, the
sum of all
Tranche A Term Loan Commitments, Tranche B Term Loan Commitments
and Tranche C
Term Loan Commitments and (y) if prior to the termination thereof
pursuant to
Section 4.03(f), the sum of all Incremental Term Loan Commitments)
of
Non-Defaulting Lenders at such time and the sum of all Revolving
Loan
Commitments of all Non-Defaulting Lenders at such time (or, after
the
termination thereof, the sum of the then total Individual RL
Facility Exposures
of all Non-Defaulting Lenders at such time). For purposes of this
definition,
the calculation of the outstanding principal amount (or, Face
Amount, as the
case may be) of all Commitments and Term Loans denominated in
Canadian Dollars
shall be determined by taking the U.S. Dollar Equivalent thereof at
the time of
any such calculation.
"Requirement of Law" shall mean, with respect to any
Person, (i) the
charter, articles or certificate of organization or incorporation
and bylaws or
other organizational or governing documents of such Person and (ii)
any statute,
law, treaty, rule, regulation, order, decree, writ, injunction or
determination
of any arbitrator or court or other Governmental Authority, in each
case
applicable to or binding upon such Person or any of its property or
to which
such Person or any of its property is subject.
"Restricted Payment" means any dividend or other
distribution (whether
in cash, securities or other property) with respect to any Equity
Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether
in cash,
securities or other property), including any sinking fund or
similar deposit, on
account of the purchase, redemption, retirement, acquisition,
cancellation or
termination of any Equity Interests in Holdings, the Borrower or
any Subsidiary
or any option, warrant or other right to acquire any such Equity
Interests in
Holdings, the Borrower or any Subsidiary.
"Restructuring Charges" shall mean charges in respect of
restructurings, plant closings, headcount reductions or other
similar actions,
including severance charges in respect of employee terminations.
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"Retained Excess Cash Flow" shall mean, with respect to
any Excess
Cash Flow Payment Period ended after the Effective Date, the amount
of Excess
Cash Flow for such Excess Cash Flow Payment Period that the U.S.
Borrower was
not required to use to prepay Term Loans pursuant to Section
5.02(f).
"Revolving Loan" shall have the meaning provided in
Section 2.01(f).
"Revolving Loan Commitment" shall mean, for each RL
Lender, its
Multicurrency Facility Revolving Loan Commitment (if any) and its
Dollar
Facility Revolving Loan Commitment (if any).
"Revolving Loan Maturity Date" shall mean December 23,
2010.
"RL Commitment Commission" shall have the meaning
provided in Section
4.01(a).
"RL Lender" shall mean each Multicurrency Facility RL
Lender and each
Dollar Facility RL Lender.
"RL Percentage" of any RL Lender at any time shall mean
that
percentage which is equal to a fraction (expressed as a percentage)
the
numerator of which is the Revolving Loan Commitment of such RL
Lender at such
time and the denominator of which is the Total Revolving Loan
Commitment at such
time, provided that if any such determination is to be made after
the Total
Revolving Loan Commitment (and the related Revolving Loan
Commitments of the RL
Lenders) has terminated, the determination of such percentages
shall be made
immediately before giving effect to such termination.
"S&P" shall mean Standard & Poor's Ratings
Services, a division of
McGraw Hill, Inc.
"Sale and Leaseback Transaction" shall have the meaning
provided in
Section 10.06.
"Scheduled Existing Indebtedness" shall mean Third Party
Scheduled
Existing Indebtedness and Intercompany Scheduled Existing
Indebtedness.
"Scheduled Repayment" shall mean any Tranche A Term Loan
Scheduled
Repayment, Tranche B Term Loan Scheduled Repayment, Tranche C Term
Loan
Scheduled Repayment and/or Incremental Term Loan Scheduled
Repayment, as
applicable.
"Scotia" shall mean The Bank of Nova Scotia, in its
individual
capacity, and any successor corporation thereto by merger,
consolidation or
otherwise.
"SEC" shall mean the Securities and Exchange Commission
or any
Governmental Authority succeeding to any of its principal
functions.
"Section 5.04(b)(ii) Certificate" shall have the meaning
provided in
Section 5.04(b)(ii).
"Secured Creditor" shall mean each applicable "Secured
Creditor", as
defined in any applicable Security Document.
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"Securities Act" shall mean the Securities Act of 1933,
as amended,
and the rules and regulations promulgated thereunder.
"Security Agreements" shall mean the U.S. Security
Agreement and the
Canadian Security Agreement.
"Security Document" shall mean and include each of the
Security
Agreements, the Pledge Agreements, each Mortgage and, after the
execution and
delivery thereof, each Additional Security Document and all other
mortgages,
pledge agreements, security agreements and other security documents
entered into
from time to time pursuant to Sections 9.12 and/or 9.13, in each
case as the
same may be modified, supplemented or amended from time to time in
accordance
with the terms hereof and thereof.
"Seller" shall mean Cooper Tire & Rubber Company, a
Delaware
corporation, and Cooper Tyre & Rubber Company UK Limited, a
company organized
under the laws of England and Wales.
"Senior Notes" shall mean the U.S. Borrower's 7% Senior
Notes due
2012, issued pursuant to the Senior Notes Indenture, as in effect
on the
Effective Date and as the same may be amended, modified and/or
supplemented from
time to time in accordance with the terms hereof and thereof. As
used herein,
the term "Senior Notes" shall include any Exchange Senior Notes
issued pursuant
to the Senior Notes Indenture in exchange for theretofore
outstanding Senior
Notes, as contemplated by the Offering Memorandum, dated December
16, 2004, and
the definition of Exchange Senior Notes.
"Senior Notes Documents" shall mean the Senior Notes, the
Senior Notes
Indenture and all other material documents executed and delivered
with respect
to the Senior Notes or the Senior Notes Indenture, as in effect on
the Effective
Date and as the same may be amended, modified or supplemented from
time to time
in accordance with the terms hereof and thereof.
"Senior Notes Indenture" shall mean the Indenture, dated
as of
December 23, 2004, among Holdings, the U.S. Borrower, the U.S.
Subsidiary
Guarantors and Wilmington Trust Company, as trustee, as in effect
on the
Effective Date and as thereafter amended, modified or supplemented
from time to
time in accordance with the terms hereof and thereof.
"Senior Secured Leverage Ratio" shall mean, on any date,
the ratio of
(a) Total Senior Secured Indebtedness as of such date to (b)
Consolidated EBITDA
for the period of four consecutive Fiscal Quarters ended on such
date (or, if
such date is not the last day of a Fiscal Quarter, ended on the
last day of the
Fiscal Quarter most recently ended prior to such date), provided
that, to the
extent the U.S. Borrower or any of its Subsidiaries makes any
Permitted
Acquisition, Asset Disposition or Discontinuation during the period
of four
Fiscal Quarters most recently ended, the Senior Secured Leverage
Ratio for such
period shall be calculated on a Pro Forma Basis.
"Senior Subordinated Notes" shall mean the U.S.
Borrower's 8.375%
Senior Subordinated Notes due 2014, issued pursuant to the Senior
Subordinated
Note Indenture, as in effect on the Effective Date and as the same
may be
amended, modified or supplemented from time to time in accordance
with the terms
hereof and thereof. As used herein, the term "Senior Subordinated
Notes" shall
include any Exchange Senior Subordinated Notes issued pursuant to
the Senior
Subordinated Notes Indenture in exchange for theretofore
outstanding Senior
Subordinated Notes, as
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contemplated by the Offering Memorandum, dated December 16, 2004,
and the
definition of Exchange Senior Subordinated Notes.
"Senior Subordinated Notes Documents" shall mean the
Senior
Subordinated Notes, the Senior Subordinated Notes Indenture and all
other
documents executed and delivered with respect to the Senior
Subordinated Notes
or Senior Subordinated Notes Indenture, as in effect on the
Effective Date and
as the same may be amended, modified or supplemented from time to
time in
accordance with the terms hereof and thereof.
"Senior Subordinated Notes Indenture" shall mean the
Indenture, dated
as of December 23, 2004, among Holdings, the U.S. Borrower, the
U.S. Subsidiary
Guarantors and Wilmington Trust Company, as trustee, as in effect
on the
Effective Date and as thereafter amended, modified or supplemented
from time to
time in accordance with the terms hereof and thereof.
"Shareholders' Agreements" shall have the meaning
provided in Section
6.17.
"Sharing Event" shall mean (i) the occurrence of any
Event of Default
with respect to any Credit Agreement Party pursuant to clauses (h),
(i) or (j)
of Section 11, (ii) the declaration of the termination of any
Revolving Loan
Commitment, or the acceleration of the maturity of any Loans, in
each case
pursuant to the last paragraph of Section 11 or (iii) the failure
of either
Borrower to pay any principal of (or, Face Amount, as applicable),
or interest
on, Loans of any Tranche or any Letter of Credit Outstandings on
the relevant
Maturity Date.
"SPE Subsidiary" shall mean any Wholly-Owned Subsidiary
formed solely
for the purpose of, and that engages only in, one or more Permitted
Securitizations.
"Special Reserve Account" shall have the meaning provided
in Section
2.14(d).
"Sponsor" shall mean, collectively, The Cypress Group
L.L.C. and GS
Capital Partners 2000, L.P.
"Standby Letter of Credit" shall have the meaning
provided in Section
3.01(a).
"Start Date" shall have the meaning provided in the
definition of
Applicable Margin.
"Stated Amount" of each Letter of Credit shall, at any
time, mean the
maximum amount available to be drawn thereunder (in each case
determined without
regard to whether any conditions to drawing could then be met, but
after giving
effect to all previous drawings made thereunder), provided that
except as such
term is used in Section 3.02 and except as provided in the
definition of
"Canadian Dollar L/C Stated Amount", the "Stated Amount" of each
Canadian Dollar
Denominated Letter of Credit shall be, on any date of calculation,
the U.S.
Dollar Equivalent of the maximum amount available to be drawn in
Canadian
Dollars thereunder (determined without regard to whether any
conditions to
drawing could then be met but after giving effect to all previous
drawings made
thereunder).
"Subsidiaries Guaranty" shall mean and include the U.S.
Subsidiaries
Guaranty, the Canadian Subsidiaries Guaranty and any other guaranty
executed and
delivered by any Subsidiary of the U.S. Borrower pursuant to
Sections 9.12 and
9.13.
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"Subsidiary" of any Person shall mean and include (i) any
corporation
more than 50% of whose stock of any class or classes having by the
terms thereof
ordinary voting power to elect a majority of the directors of such
corporation
(irrespective of whether or not at the time stock of any class or
classes of
such corporation shall have or might have voting power by reason of
the
happening of any contingency) is at the time owned by such Person
directly or
indirectly through one or more Subsidiaries of such Person and (ii)
any
partnership, association, limited liability company, joint venture
or other
entity (other than a corporation) in which such Person directly or
indirectly
through one or more Subsidiaries of such Person, has more than a
50% Equity
Interest at the time.
"Subsidiary Guarantor" shall mean each Subsidiary of
Holdings that
executes and delivers any Subsidiaries Guaranty, unless and until
such time as
the respective Subsidiary is released from all of its obligations
under any
relevant Subsidiaries Guaranty in accordance with the terms and
provisions
thereof.
"Supermajority Lenders" of any Tranche shall mean those
Non-Defaulting
Lenders which would constitute the Required Lenders under, and as
defined in,
this Agreement if (x) all outstanding Obligations of the other
Tranches under
this Agreement were repaid in full and all Commitments with respect
thereto were
terminated and (y) the percentage "50%" contained therein were
changed to
"66-2/3%."
"Swap Agreement" means any agreement with respect to any
swap,
forward, future or derivative transaction or option or similar
agreement
involving, or settled by reference to, one or more rates,
currencies,
commodities, equity or debt instruments or securities, or economic,
financial or
pricing indices or measures of economic, financial or pricing risk
or value or
any similar transaction or any combination of these transactions,
provided that
no phantom stock or similar plan providing for payments only on
account of
services provided by current or former directors, officers,
employees or
consultants of the U.S. Borrower or any of its Subsidiaries shall
be a Swap
Agreement.
"Swingline Expiry Date" shall mean the date that is five
Business Days
prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean DBTCA, or any Person
serving as a
successor Administrative Agent hereunder, in its capacity as a
lender of
Swingline Loans.
"Swingline Loans" shall have the meaning provided in
Section 2.01(g).
"Swingline Note" shall have the meaning provided in
Section 2.05(a).
"Syndication Agent" shall have the meaning provided in
the first
paragraph of this Agreement and shall include any successor to a
Syndication
Agent appointed pursuant to Section 12.10.
"Syndication Date" shall mean the earlier of (i) the 35th
day
following the Initial Borrowing Date and (ii) the date upon which
the Agents
determine (and notify Holdings and the Lenders) that the primary
syndication
(and resultant addition of Persons as Lenders pursuant to Section
13.04(b)) has
been completed.
"Tax Allocation Agreements" shall have the meaning
provided in Section
6.17.
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"Tax Distribution" shall mean, in the event that Holdings
and the U.S.
Borrower become pass-through or disregarded entities for U.S.
federal income tax
purposes, a distribution to Holdings to the extent the proceeds of
such
distribution are distributed to the holders of Equity Interests of
Holdings in
any taxable year to enable such holders to pay their Tax liability
on their
respective shares of cumulative taxable income attributable to
Holdings for such
year.
"Taxes" shall have the meaning provided in Section
5.04(a).
"Term Loan Lender" shall mean each Tranche A TL Lender,
Tranche B TL
Lender, Tranche C TL Lender and each Incremental Term Lender.
"Term Loans" shall mean and include Tranche A Term Loans,
Tranche B
Term Loans, Tranche C Term Loans and each Incremental Term Loan.
"Third Party Scheduled Existing Indebtedness" shall have
the meaning
provided in Section 8.18.
"TL Repayment Percentage" of any Tranche of Term Loans at
any time
shall be a fraction (expressed as a percentage) (x) the numerator
of which is
the aggregate principal amount (or, Face Amount, as applicable) of
outstanding
Term Loans of such Tranche and (y) the denominator of which is the
sum of the
aggregate principal amount (or, Face Amount, as applicable) of all
outstanding
Term Loans at such time. For purposes of making the foregoing
determination, the
U.S. Dollar Equivalent of the principal amount (or, Face Amount, as
applicable)
of all outstanding Tranche A Term Loans and Canadian Dollar
Denominated
Incremental Term Loans at the time of the respective determination
shall be
utilized.
"Total Commitment" shall mean, at any time, the sum of
the Total
Tranche A Term Loan Commitment, the Total Tranche B Term Loan
Commitment, the
Total Tranche C Term Loan Commitment, the Total Incremental Term
Loan Commitment
and the Total Revolving Loan Commitment.
"Total Dollar Facility Revolving Loan Commitment" shall
mean, at any
time, the sum of the Dollar Facility Revolving Loan Commitments of
each of the
Lenders with such a Commitment at such time.
"Total Incremental Term Loan Commitment" shall mean, at
any time, the
sum of the Incremental Term Loan Commitments of each of the Lenders
with such a
Commitment at such time.
"Total Indebtedness" shall mean, as of any date, the sum
of (a) the
aggregate principal amount of Indebtedness of the U.S. Borrower and
its
Subsidiaries outstanding as of such date, in the amount that would
be reflected
on a balance sheet prepared as of such date on a consolidated basis
in
accordance with U.S. GAAP, plus (b) the aggregate principal amount
of
Indebtedness of the U.S. Borrower and its Subsidiaries outstanding
as of such
date that is not required to be reflected on a balance sheet in
accordance with
U.S. GAAP, determined on a consolidated basis, provided that, for
purposes of
clause (b) above, the term "Indebtedness" shall not include
contingent
obligations of the U.S. Borrower or any of its Subsidiaries as an
account party
or applicant in respect of any letter of credit or letter of
guaranty, unless
such letter of credit or letter of guaranty supports an obligation
that
constitutes Indebtedness, minus (c) the aggregate amount of cash
and Permitted
Investments of the U.S. Borrower and its Subsidiaries as of such
date with
respect to which the
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Collateral Agent has a valid and enforceable security interest,
prior and
superior to the rights of any other Person, except for rights
secured by
Permitted Liens; provided that the aggregate amount of cash and
Permitted
Investments permitted to be included in this clause (c) shall not
exceed
U.S.$40,000,000.
"Total Multicurrency Facility Revolving Loan Commitment"
shall mean,
at any time, the sum of the Multicurrency Facility Revolving Loan
Commitments of
each of the Lenders with such a Commitment at such time.
"Total Revolving Loan Commitment" shall mean, at any
time, the sum of
the Total Dollar Facility Revolving Loan Commitment and the Total
Multicurrency
Facility Revolving Loan Commitment, in each case in effect at such
time.
"Total Senior Secured Indebtedness" shall mean, as of any
date, (a)
Total Indebtedness as of such date minus (b) Indebtedness of the
U.S. Borrower
and its Subsidiaries included in the determination of "Total
Indebtedness" which
is not secured by, or subject to, a Lien on the property or assets
of the U.S.
Borrower or any of its Subsidiaries.
"Total Tranche A Term Loan Commitment" shall mean, at any
time, the
sum of the Tranche A Term Loan Commitments of each of the Lenders
with such a
Commitment at such time.
"Total Tranche B Term Loan Commitment" shall mean, at any
time, the
sum of the Tranche B Term Loan Commitments of each of the Lenders
with such a
Commitment at such time.
"Total Tranche C Term Loan Commitment" shall mean, at any
time, the
sum of the Tranche C Term Loan Commitments of each of the Lenders
with such a
Commitment at such time.
"Total Unutilized Revolving Loan Commitment" shall mean,
at any time,
an amount equal to the remainder of (x) the Total Revolving Loan
Commitment as
in effect at such time less (y) the sum of the Aggregate
Multicurrency Facility
RL Exposure at such time and the Aggregate Dollar Facility RL
Exposure at such
time.
"Trade Letter of Credit" shall have the meaning set forth
in Section
3.01(a).
"Tranche" shall mean the respective facilities and
commitments
utilized in making Loans hereunder (i.e., whether Tranche A Term
Loans, Tranche
B Term Loans, Tranche C Term Loans, Multicurrency Facility
Revolving Loans,
Dollar Facility Revolving Loans, Swingline Loans or Incremental
Term Loans made
pursuant to one or more tranches designated pursuant to the
respective
Incremental Term Loan Commitment Agreements in accordance with the
relevant
requirements specified in Section 2.15); provided that (x) in the
circumstances
contemplated by Section 2.15(c), Incremental Term Loans may be made
part of a
then existing Tranche of Term Loans and (y) for purposes of the
definition of
"Supermajority Lenders", "Majority Lenders" and Section 13.12(a),
Dollar
Facility Revolving Loans and Swingline Loans shall collectively be
deemed to
represent a single "Tranche".
"Tranche A Term Loan" shall have the meaning provided in
Section
2.01(a).
"Tranche A Term Loan Commitment" shall mean, with respect
to each
Lender, the amount set forth opposite such Lender's name in
Schedule I directly
below the column entitled
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"Tranche A Term Loan Commitment", as the same may be terminated
pursuant to
Sections 4.03 and/or 11.
"Tranche A Term Loan Maturity Date" shall mean December
23, 2010.
"Tranche A Term Loan Scheduled Repayment" shall have the
meaning
provided in Section 5.02(b).
"Tranche A Term Note" shall have the meaning provided in
Section
2.05(a).
"Tranche A TL Lender" shall mean any Lender with a
Tranche A Term Loan
Commitment or outstanding Tranche A Term Loans.
"Tranche B Term Loan" shall mean have the meaning
provided in Section
2.01(b).
"Tranche B Term Loan Commitment" shall mean, with respect
to each
Lender, the amount set forth opposite such Lender's name in
Schedule I directly
below the column entitled "Tranche B Term Loan Commitment", as the
same may be
terminated pursuant to Sections 4.03 and/or 11.
"Tranche B Term Loan Maturity Date" shall mean December
23, 2011.
"Tranche B Term Loan Scheduled Repayment" shall have the
meaning
provided in Section 5.02(b).
"Tranche B Term Note" shall have the meaning provided in
Section
2.05(a).
"Tranche B TL Lender" shall mean any Lender with a
Tranche B Term Loan
Commitment or outstanding Tranche B Term Loans.
"Tranche C Term Loan" shall mean have the meaning
provided in Section
2.01(c).
"Tranche C Term Loan Commitment" shall mean, with respect
to each
Lender, the amount set forth opposite such Lender's name in
Schedule I directly
below the column entitled "Tranche C Term Loan Commitment", as the
same may be
terminated pursuant to Sections 4.03 and/or 11.
"Tranche C Term Loan Maturity Date" shall mean December
23, 2011.
"Tranche C Term Loan Scheduled Repayment" shall have the
meaning
provided in Section 5.02(b).
"Tranche C Term Note" shall have the meaning provided in
Section
2.05(a).
"Tranche C TL Lender" shall mean any Lender with a
Tranche C Term Loan
Commitment or outstanding Tranche C Term Loans.
"Transaction" shall mean, collectively, (i) the
consummation of the
Acquisition and the other transactions contemplated by the
Acquisition
Documents, (ii) the consummation of the Common Equity Financing and
the Holdings
Equity Contribution, (iii) the execution, delivery and
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performance by each U.S. Credit Party of the Senior Notes Documents
to which it
is a party, the issuance of the Senior Notes and the use of
proceeds thereof,
(iv) the execution, delivery and performance by each U.S. Credit
Party of the
Senior Subordinated Notes Documents to which it is a party, the
issuance of the
Senior Subordinated Notes and the use of proceeds thereof, (v) the
consummation
of the Refinancing, (vi) the consummation of the Intercompany
Distribution
Transactions, (vii) the consummation of the Foreign Asset Transfer,
(viii) the
execution, delivery and performance by each Credit Party of the
Credit Documents
to which it is a party, the borrowing of Loans, the use of proceeds
thereof and
the issuance of Letters of Credit hereunder and (ix) and the
payment of all fees
and expenses incurred in connection with the foregoing transactions
(not to
exceed $55,000,000).
"Type" shall mean the type of Loan determined with regard
to the
interest option applicable thereto, i.e., whether a Base Rate Loan,
a Eurodollar
Loan, a Canadian Prime Rate Loan or a Bankers' Acceptance Loan.
"UBS Securities" shall mean UBS Securities LLC, in its
individual
capacity, and any successor corporation thereto by merger,
consolidation or
otherwise.
"UCC" shall mean the Uniform Commercial Code as in effect
from time to
time in the relevant jurisdiction.
"Unpaid Drawing" shall have the meaning provided in
Section 3.05(a).
"Unutilized Dollar Facility Revolving Loan Commitment"
with respect to
any Dollar Facility RL Lender, at any time, shall mean such Dollar
Facility RL
Lender's Dollar Facility Revolving Loan Commitment at such time, if
any, less
the sum of (i) the aggregate outstanding principal amount of all
Dollar Facility
Revolving Loans made by such Dollar Facility RL Lender and then
outstanding and
(ii) the sum of such Dollar Facility RL Lender's L/C Participation
Percentage of
the Stated Amount of each Dollar Facility Letter of Credit and any
Unpaid
Drawings relating thereto.
"Unutilized Multicurrency Facility Revolving Loan
Commitment" with
respect to any Multicurrency Facility RL Lender, at any time, shall
mean such
Multicurrency Facility RL Lender's Multicurrency Facility Revolving
Loan
Commitment at such time, if any, less the sum of (i) the aggregate
outstanding
principal amount of all Multicurrency Facility Revolving Loans
(taking the U.S.
Dollar Equivalent of any such Loans denominated in Canadian
Dollars) made by
such Multicurrency Facility RL Lender and then outstanding, and
(ii) the sum of
such Multicurrency Facility RL Lender's L/C Participation
Percentage of the
Stated Amount of each Multicurrency Facility Letter of Credit and
any Unpaid
Drawings (taking the U.S. Dollar Equivalent of any amounts
expressed in Canadian
Dollars) relating thereto.
"U.S." or "United States" shall mean the United States of
America.
"U.S. Borrower" shall have the meaning provided in the
first paragraph
of this Agreement.
"U.S. Borrower Guaranteed Obligations" shall mean (i) the
principal
(or, Face Amount, as applicable) and interest on each Tranche A
Term Note, each
Tranche B Term Note, each Multicurrency Facility Revolving Note and
each
Incremental Term Note issued by the Canadian Borrower to each
Lender, and each
Tranche A Term Loan, each Tranche B Term Loan, each
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Multicurrency Facility Revolving Loan and each Canadian Borrower
Incremental
Term Loan made, under this Agreement, all reimbursement obligations
and Unpaid
Drawings with respect to each Multicurrency Facility Letter of
Credit issued for
the account of the Canadian Borrower, together with all the other
obligations
(including obligations which, but for the automatic stay under
Section 362(a) of
the Bankruptcy Code, would become due) and liabilities (including,
without
limitation, indemnities, fees and interest thereon) of the Canadian
Borrower to
each Lender, each Agent, each Issuing Lender and the Collateral
Agent now
existing or hereafter incurred under, arising out of or in
connection with this
Agreement or any other Credit Document and the due performance and
compliance by
the Canadian Borrower with all the terms, conditions and agreements
contained in
the Credit Documents to which it is a party and (ii) all
obligations (including
obligations which, but for the automatic stay under Section 362(a)
of the
Bankruptcy Code, would become due) and liabilities of each
Subsidiary of the
U.S. Borrower owing under each Swap Agreement entered into by each
Subsidiary of
the U.S. Borrower with any Guaranteed Creditor so long as such
Guaranteed
Creditor participates in such Swap Agreement, and their subsequent
assigns, if
any, whether now in existence or hereafter arising, and the due
performance and
compliance with all terms, conditions and agreements contained
therein.
"U.S. Borrower Guaranteed Party" shall mean the Canadian
Borrower and
each Subsidiary of the U.S. Borrower party to any Swap Agreement
with any
Secured Creditor.
"U.S. Borrower Incremental Term Loans" shall mean
Incremental Term
Loans incurred by the U.S. Borrower.
"U.S. Borrower's Guaranty" shall mean the guaranty of the
U.S.
Borrower pursuant to Section 15.
"U.S. Credit Party" shall mean Holdings, the U.S.
Borrower and each
U.S. Subsidiary Guarantor.
"U.S. Dollar Equivalent" of an amount denominated in a
currency other
than U.S. Dollars shall mean, at any time for the determination
thereof, the
amount of U.S. Dollars which could be purchased with the amount of
such currency
involved in such computation at the spot exchange rate therefor as
quoted by the
Administrative Agent as of 11:00 A.M. (New York time) on the date
two Business
Days prior to the date of any determination thereof for purchase on
such date
(or, in the case of any determination pursuant to the definitions
of "Required
Lenders" and "TL Repayment Percentage" or Section 2.14 or 13.22 or
Section 21
(or any analogous provision) of any Subsidiaries Guaranty, on the
date of
determination); provided that, following the occurrence of a
Sharing Event, the
U.S. Dollar Equivalent of any Unpaid Drawing or unreimbursed
payment under a
Multicurrency Facility Letter of Credit expressed in Canadian
Dollars shall be
determined on the later of the time the drawing under the related
Letter of
Credit was paid or disbursed by the Issuing Lender or the date of
the occurrence
of the Sharing Event, provided further, that for purposes of (x)
determining
compliance with Sections 2.01(e), 3.01(c) and 5.02(a)(i) and (y)
calculating
Fees pursuant to Section 4.01 (except Fees which are expressly
required to be
paid in Canadian Dollars pursuant to Section 4.01), the U.S. Dollar
Equivalent
of any amounts denominated in a currency other than U.S. Dollars
shall be
revalued on a monthly basis using the spot exchange rates therefor
as quoted in
Reuters ECB Page 37 (or, if same does not provide such exchange
rates, on such
other basis as is reasonably satisfactory to the Administrative
Agent) on the
last Business Day of each calendar month, provided, however, that
at any time
during a calendar month, if the Aggregate Multicurrency Facility RL
Exposure
(for the purposes of the determination thereof, using the U.S.
Dollar Equivalent
as recalculated based on
-49-
the spot exchange rate therefor as quoted in Reuters ECB Page 37
(or, if same
does not provide such exchange rates, on such other basis as is
reasonably
satisfactory to the Administrative Agent) on the respective date of
determination pursuant to this exception) would exceed 85% of the
Total
Multicurrency Facility Revolving Loan Commitment, then in the sole
discretion of
the Administrative Agent or at the request of the Required Lenders,
the U.S.
Dollar Equivalent shall be reset based upon the spot exchange rates
on such date
as quoted in the Reuters ECB Page 37 (or, if same does not provide
such exchange
rates, on such other basis as is reasonably satisfactory to the
Administrative
Agent), which rates shall remain in effect until the last Business
Day of such
calendar month or such earlier date, if any, as the rate is reset
pursuant to
this proviso. Notwithstanding anything to the contrary contained in
this
definition, at any time that a Default or an Event of Default then
exists, the
Administrative Agent may revalue the U.S. Dollar Equivalent of any
amounts
outstanding under the Credit Documents in a currency other than
U.S. Dollars in
its sole discretion.
"U.S. Dollars", "Dollars" and the sign "U.S.$" shall each
mean freely
transferable lawful money of the United States of America.
"U.S. Finco" shall mean CS Automotive LLC, a limited
liability company
organized under the laws of the State of Delaware.
"U.S. GAAP" shall mean generally accepted accounting
principles in the
United States of America as in effect from time to time; provided
that
determinations made pursuant to this Agreement in accordance with
U.S. GAAP are
subject (to the extent provided therein) to Section 13.07(a).
"U.S. Pledge Agreement" shall have the meaning provided
in Section
6.14(a).
"U.S. Pledge Agreement Collateral" shall mean all of the
"Collateral"
as defined in the U.S. Pledge Agreement.
"U.S. Security Agreement" shall have the meaning provided
in Section
6.15(a).
"U.S. Security Documents" shall mean and include the U.S.
Security
Agreement, the U.S. Pledge Agreement, each Mortgage covering a
Mortgaged
Property located in the United States or any State or territory
thereof and each
other Security Document covering assets of a U.S. Credit Party
situated in the
United States or any State or territory thereof.
"U.S. Subsidiaries Guaranty" shall have the meaning
provided in
Section 6.13(a) and shall include any counterpart thereof and any
other
substantially identical guaranty executed and delivered by any
Domestic
Subsidiary of the U.S. Borrower pursuant to Sections 9.12 or 9.13.
"U.S. Subsidiary Guarantor" shall mean (i) each
Wholly-Owned Domestic
Subsidiary of Holdings as of the Initial Borrowing Date (other than
the U.S.
Borrower) and (ii) each other Wholly-Owned Domestic Subsidiary of
Holdings
created, established or acquired after the Initial Borrowing Date
which executes
and delivers a U.S. Subsidiaries Guaranty, unless and until such
time as the
respective Domestic Subsidiary is released from all of its
obligations under its
U.S. Subsidiaries Guaranty in accordance with the terms and
provisions thereof.
"Weighted Average Life to Maturity" shall mean, when
applied to any
Indebtedness at any date, the number of years obtained by dividing
(i) the then
outstanding principal amount of
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such Indebtedness into (ii) the product obtained by multiplying (x)
the amount
of each then remaining installment or other required scheduled
payments of
principal, including payment at final maturity, in respect thereof,
by (y) the
number of years (calculated to the nearest one-twelfth) that will
elapse between
such date and the making of such payment.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any
Person, any
Wholly-Owned Subsidiary of such Person that is a Domestic
Subsidiary of such
Person.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any
Person, any
Wholly-Owned Subsidiary of such Person that is not a Domestic
Subsidiary of such
Person.
"Wholly-Owned Subsidiary" shall mean, as to any Person,
(i) any
corporation 100% of whose capital stock (other than director's
qualifying shares
and/or other nominal amounts of shares required by applicable law
to be held by
Persons other than such Person) is at the time owned by such Person
and/or one
or more Wholly-Owned Subsidiaries of such Person and (ii) any
partnership,
limited liability company, association, joint venture or other
entity in which
such Person and/or one or more Wholly-Owned Subsidiaries of such
Person has a
100% Equity Interest at such time.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a
result of a complete or partial withdrawal from such Multiemployer
Plan, as such
terms are defined in ERISA.
"Written" (whether lower or upper case) or "in writing"
shall mean any
form of written communication or a communication by means of telex,
facsimile
device, telegraph or cable.
SECTION 2. Amount and Terms of Credit.
2.01 Commitments.
(a) Tranche A Term Loans. Subject to and upon the terms
and conditions
set forth herein, each Lender with a Tranche A Term Loan Commitment
severally
agrees to make a term loan (each, a "Tranche A Term Loan" and,
collectively, the
"Tranche A Term Loans") to the Canadian Borrower, which Tranche A
Term Loans:
(i) shall be incurred by the Canadian Borrower pursuant
to a single
drawing on the Initial Borrowing Date for the purposes
described in Section
9.11(a);
(ii) shall be denominated in Canadian Dollars;
(iii) except as hereafter provided, shall, at the option
of the
Canadian Borrower, be made either by means of (x) Canadian
Prime Rate
Loans, (y) in the case of a B/A Lender, the creation of
Bankers'
Acceptances on the terms and conditions provided for herein
and in Schedule
III hereto or (z) in a case of a Non-B/A Lender, the creation
and purchase
of completed Drafts and the exchange of such Drafts for B/A
Equivalent
Notes, in each case on the terms and conditions provided for
herein and in
Schedule III hereto; and
(iv) shall be made by each Lender in that initial
aggregate principal
amount as is equal to the Tranche A Term Loan Commitment of
such Lender on
the Initial Borrowing Date (before giving effect to the
termination thereof
on such date pursuant to Section 4.03(b)).
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Once repaid, Tranche A Term Loans incurred hereunder may not be
reborrowed.
(b) Tranche B Term Loans. Subject to and upon the terms
and conditions
set forth herein, each Lender with a Tranche B Term Loan Commitment
severally
agrees to make a term loan (each, a "Tranche B Term Loan" and,
collectively, the
"Tranche B Term Loans") to the Canadian Borrower, which Tranche B
Term Loans:
(i) shall be incurred by the Canadian Borrower pursuant
to a single
drawing on the Initial Borrowing Date for the purposes
described in Section
9.11(a);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option
of the
Canadian Borrower, be incurred and maintained as, and/or
converted into,
Base Rate Loans or Eurodollar Loans, provided that (A) except
as otherwise
specifically provided in Section 2.10(b), all Tranche B Term
Loans made as
part of the same Borrowing shall at all times consist of
Tranche B Term
Loans of the same Type and (B) unless the Administrative Agent
has
determined that the Syndication Date has occurred (at which
time this
clause (B) shall no longer be applicable), no more than four
Borrowings of
Tranche B Term Loans to be maintained as Eurodollar Loans may
be incurred
prior to the 35th day after the Initial Borrowing Date (or, if
later, the
last day of the Interest Period applicable to the fourth
Borrowing of
Eurodollar Loans referred to below), each of which Borrowings
of Eurodollar
Loans may only have an Interest Period of one week, and the
first of which
Borrowings may be made on the fifth Business Day after the
Initial
Borrowing Date, the second of which Borrowings may only be
made on the last
day of the Interest Period of the first such Borrowing, the
third of which
Borrowings may only be made on the last day of the Interest
Period of the
second such Borrowing and the fourth of which Borrowings may
only be made
on the last day of the Interest Period of the third such
Borrowing; and
(iv) shall be made by each Lender in that initial
aggregate principal
amount as is equal to the Tranche B Term Loan Commitment of
such Lender on
the Initial Borrowing Date (before giving effect to the
termination thereof
on such date pursuant to Section 4.03(c)).
Once repaid, Tranche B Term Loans incurred hereunder may not be
reborrowed.
(c) Tranche C Term Loans. Subject to and upon the terms
and conditions
set forth herein, each Lender with a Tranche C Term Loan Commitment
severally
agrees to make a term loan (each, a "Tranche C Term Loan" and,
collectively, the
"Tranche C Term Loans") to the U.S. Borrower, which Tranche C Term
Loans:
(i) shall be incurred by the U.S. Borrower pursuant to a
single
drawing on the Initial Borrowing Date for the purposes
described in Section
9.11(a);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option
of the U.S.
Borrower, be incurred and maintained as, and/or converted
into, Base Rate
Loans or Eurodollar Loans, provided that (A) except as
otherwise
specifically provided in Section 2.10(b), all Tranche C
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Term Loans made as part of the same Borrowing shall at all
times consist of
Tranche C Term Loans of the same Type and (B) unless the
Administrative
Agent has determined that the Syndication Date has occurred
(at which time
this clause (B) shall no longer be applicable), no more than
four
Borrowings of Tranche C Term Loans to be maintained as
Eurodollar Loans may
be incurred prior to the 35th day after the Initial Borrowing
Date (or, if
later, the last day of the Interest Period applicable to the
fourth
Borrowing of Eurodollar Loans referred to below), each of
which Borrowings
of Eurodollar Loans may only have an Interest Period of one
week, and the
first of which Borrowings may only be made on the same date as
the initial
Borrowing of Tranche B Term Loans that are maintained as
Eurodollar Loans,
the second of which Borrowings may only be made on the last
day of the
Interest Period of the first such Borrowing, the third of
which Borrowings
may only be made on the last day of the Interest Period of the
second such
Borrowing and the fourth of which Borrowings may only be made
on the last
day of the Interest Period of the third such Borrowing; and
(iv) shall be made by each Lender in that initial
aggregate principal
amount as is equal to the Tranche C Term Loan Commitment of
such Lender on
the Initial Borrowing Date (before giving effect to the
termination thereof
on such date pursuant to Section 4.03(d)).
Once repaid, Tranche C Term Loans incurred hereunder may not be
reborrowed.
(d) Incremental Term Loans. Subject to and upon the terms
and
conditions set forth herein, (i) each Lender with an Incremental
Term Loan
Commitment for a given Tranche of Incremental Term Loans severally
agrees, to
make a term loan (each, an "Incremental Term Loan" and,
collectively, the
"Incremental Term Loans") to the Incremental Term Loan Borrower for
such
Tranche, which Incremental Term Loans:
(i) shall be incurred pursuant to a single drawing on the
respective
Incremental Term Loan Borrowing Date for the purposes
described in Section
9.11(a);
(ii) shall be denominated in U.S. Dollars or, if the
Incremental Term
Loan Borrower is the Canadian Borrower and so elects in
accordance with the
terms of Section 2.15, Canadian Dollars;
(iii) in the case of Incremental Term Loans denominated
in U.S.
Dollars, shall, except as hereinafter provided, at the option
of the
Incremental Term Loan Borrower for such Tranche, be incurred
and maintained
as, and/or converted into one or more Borrowings of Base Rate
Loans or
Eurodollar Loans, provided that except as otherwise
specifically provided
in Section 2.10(b), all such Incremental Term Loans of a given
Tranche made
as part of the same Borrowing shall at all times consist of
Incremental
Term Loans of the same Type;
(iv) in the case of Incremental Term Loans denominated in
Canadian
Dollars, shall, except as hereafter provided, at the option of
the Canadian
Borrower, be made either by means of (x) Canadian Prime Rate
Loans, (y) in
the case of a B/A Lender, the creation of Bankers' Acceptances
on the terms
and conditions provided for herein and in Schedule III hereto
or (z) in a
case of a Non-B/A Lender, the creation and purchase of
completed Drafts and
the exchange of such Drafts for B/A Equivalent Notes, in each
case on the
terms and conditions provided for herein and in Schedule III
hereto;
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(v) shall not exceed for any such Incremental Term Loan
Lender at any
time of any incurrence thereof, the Incremental Term Loan
Commitment of
such Incremental Term Loan Lender for such Tranche on the
respective
Incremental Term Loan Borrowing Date (before giving effect to
the
termination thereof on such date pursuant to Section 4.03(g));
and
(vi) shall, in the case of a Canadian Dollar Denominated
Incremental
Term Loan, be made by a Lender which is a Canadian Resident.
Once repaid, Incremental Term Loans may not be reborrowed.
(e) Multicurrency Facility Revolving Loans. Subject to
and upon the
terms and conditions set forth herein, each Multicurrency Facility
RL Lender
severally agrees to make, at any time and from time to time on or
after the
Initial Borrowing Date and prior to the Revolving Loan Maturity
Date, a
revolving loan or revolving loans to the Canadian Borrower (each, a
"Multicurrency Facility Revolving Loan" and, collectively, the
"Multicurrency
Facility Revolving Loans"), which Multicurrency Facility Revolving
Loans:
(i) shall (subject to Section 2.14) be made and
maintained in the
respective Available Currency elected by the Canadian
Borrower;
(ii) except as hereafter provided, shall, at the option
of the
Canadian Borrower, be incurred and maintained as, and/or
converted into,
one or more Borrowings of (w) Base Rate Loans, (x) Eurodollar
Loans, (y)
Canadian Prime Rate Loans in Canadian Dollars, or (z) (i) in
the case of a
B/A Lender, the creation of Bankers' Acceptances in Canadian
Dollars on the
terms and conditions provided for herein and in Schedule III
hereto or (ii)
in a case of a Non-B/A Lender, the creation and purchase of
completed
Drafts in Canadian Dollars and the exchange of such Drafts for
B/A
Equivalent Notes, in each case on the terms and conditions
provided for
herein and in Schedule III hereto, provided that except as
otherwise
specifically provided in Section 2.10(b), all Multicurrency
Facility
Revolving Loans denominated in U.S. Dollars made as part of
the same
Borrowing shall at all times consist of Multicurrency Facility
Revolving
Loans of the same Type;
(iii) may be repaid and reborrowed in accordance with the
provisions
hereof;
(iv) shall not be made (and shall not be required to be
made) by any
Multicurrency Facility RL Lender in any instance where the
incurrence
thereof (after giving effect to the use of the proceeds
thereof on the date
of the incurrence thereof to repay any amounts theretofore
outstanding
pursuant to this Agreement) would cause the Individual
Multicurrency
Facility RL Exposure of such Multicurrency Facility RL Lender
to exceed the
amount of its Multicurrency Facility Revolving Loan Commitment
at such
time; and
(v) shall not be made (and shall not be required to be
made) by any
Multicurrency Facility RL Lender if the making of same would
cause the
Aggregate Multicurrency Facility RL Exposure (after giving
effect to the
use of the proceeds thereof on the date of the incurrence
thereof to repay
any amounts theretofore outstanding pursuant to this
Agreement) to exceed
the Total Multicurrency Facility Revolving Loan Commitment as
then in
effect.
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(f) Dollar Facility Revolving Loans. Subject to and upon
the terms and
conditions set forth herein, each Dollar Facility RL Lender
severally agrees to
make, at any time and from time to time on or after the Initial
Borrowing Date
and prior to the Revolving Loan Maturity Date, a revolving loan or
revolving
loans to the U.S. Borrower (each, a "Dollar Facility Revolving
Loan" and,
collectively, the "Dollar Facility Revolving Loans" and, together
with the
Multicurrency Facility Revolving Loans, collectively, the
"Revolving Loans" and
each a "Revolving Loan"), which Dollar Facility Revolving Loans:
(i) shall be made and maintained in U.S. Dollars;
(ii) except as hereafter provided, shall, at the option
of the U.S.
Borrower be incurred and maintained as, and/or converted into,
one or more
Borrowings of Base Rate Loans or Eurodollar Loans, provided
that except as
otherwise specifically provided in Section 2.10(b), all Dollar
Facility
Revolving Loans made as part of the same Borrowing shall at
all times
consist of Dollar Facility Revolving Loans of the same Type;
(iii) may be repaid and reborrowed in accordance with the
provisions
hereof;
(iv) shall not be made (and shall not be required to be
made) by any
Dollar Facility RL Lender in any instance where the incurrence
thereof
(after giving effect to the use of the proceeds thereof on the
date of the
incurrence thereof to repay any amounts theretofore
outstanding pursuant to
this Agreement) would cause the Individual Dollar Facility RL
Exposure of
such Dollar Facility RL Lender to exceed the amount of its
Dollar Facility
Revolving Loan Commitment at such time; and
(v) shall not be made (and shall not be required to be
made) by any
Dollar Facility RL Lender if the making of same would cause
the Aggregate
Dollar Facility RL Exposure (after giving effect to the use of
the proceeds
thereof on the date of the incurrence thereof to repay any
amounts
theretofore outstanding pursuant to this Agreement) to exceed
the Total
Dollar Facility Revolving Loan Commitment as then in effect.
(g) Swingline Loans. Subject to and upon the terms and
conditions set
forth herein, the Swingline Lender agrees to make, at any time and
from time to
time on or after the Initial Borrowing Date and prior to the
Swingline Expiry
Date, a revolving loan or revolving loans to the U.S. Borrower
(each, a
"Swingline Loan" and, collectively, the "Swingline Loans"), which
Swingline
Loans:
(i) shall be made and maintained in U.S. Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the
provisions
hereof;
(iv) shall not be made (and shall not be required to be
made) if the
making of same would cause the Aggregate Dollar Facility RL
Exposure (after
giving effect to the use of the proceeds thereof on the date
of the
incurrence thereof to repay any amounts theretofore
outstanding pursuant to
this Agreement) to exceed the Total Dollar Facility Revolving
Loan
Commitment as then in effect; and
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(v) shall not exceed in aggregate principal amount at any
time
outstanding, the Maximum Swingline Amount.
Notwithstanding anything to the contrary contained in this Section
2.01(g), (x)
the Swingline Lender shall not be obligated to make any Swingline
Loans at a
time when a Lender Default exists with respect to any Dollar
Facility RL Lender
unless the Swingline Lender has entered into arrangements
satisfactory to it to
eliminate the Swingline Lender's risk with respect to the
Defaulting Lender's or
Defaulting Lenders' refunding obligations (through the requirement
that
Mandatory Dollar Facility RL Borrowings be made from time to time)
in respect of
such Swingline Loans, including by cash collateralizing such
Defaulting Lender's
or Defaulting Lenders' Dollar Facility RL Percentages of the
outstanding
Swingline Loans and (y) the Swingline Lender shall not make any
Swingline Loan
after it has received written notice from any Credit Agreement
Party or the
Required Lenders stating that a Default or an Event of Default
exists and is
continuing until such time as the Swingline Lender shall have
received written
notice (A) of rescission of all such notices from the party or
parties
originally delivering such notice or notices or (B) of the waiver
of such
Default or Event of Default by the Required Lenders.
(h) Refunding of Swingline Loans. On any Business Day,
the Swingline
Lender may, in its sole discretion, give notice to the Dollar
Facility RL
Lenders that the outstanding Swingline Loans shall be funded with a
Borrowing of
Dollar Facility Revolving Loans in U.S. Dollars (provided that such
notice shall
be deemed to have been automatically given upon the occurrence of a
Default or
an Event of Default under clause (h), (i) or (j) of Section 11 or
upon the
exercise of any of the remedies provided in the last paragraph of
Section 11),
in which case a Borrowing of Dollar Facility Revolving Loans (each
such
Borrowing, a "Mandatory Dollar Facility RL Borrowing") shall be
made on the next
succeeding Business Day by all Dollar Facility RL Lenders pro rata
based on each
such Dollar Facility RL Lender's Dollar Facility RL Percentage and
the proceeds
thereof shall be applied directly to the Swingline Lender to repay
the Swingline
Lender for such outstanding Swingline Loans. Each Dollar Facility
RL Lender
hereby irrevocably agrees to make Dollar Facility Revolving Loans
upon one
Business Day's notice pursuant to each Mandatory Dollar Facility RL
Borrowing in
the amount and in the manner specified in the preceding sentence
and on the date
specified in writing by the Swingline Lender notwithstanding (i)
that the amount
of the Mandatory Dollar Facility RL Borrowing may not comply with
the minimum
amount for Borrowings otherwise required hereunder, (ii) whether
any conditions
specified in Section 7 are then satisfied, (iii) whether a Default
or an Event
of Default then exists, (iv) the date of such Mandatory Dollar
Facility RL
Borrowing, (v) the amount of the Total Dollar Facility Revolving
Loan Commitment
at such time and (vi) the amount of the Dollar Facility Revolving
Loan
Commitment of such Dollar Facility RL Lender at such time. In the
event that any
Mandatory Dollar Facility RL Borrowing cannot for any reason be
made on the date
otherwise required above (including, without limitation, as a
result of the
commencement of a proceeding under any bankruptcy, reorganization,
dissolution,
insolvency, receivership, administration or liquidation or similar
law with
respect to either Borrower), then each Dollar Facility RL Lender
hereby agrees
that it shall forthwith purchase (as of the date the Mandatory
Dollar Facility
RL Borrowing would otherwise have occurred, but adjusted for any
payments
received from either Borrower on or after such date and prior to
such purchase)
from the Swingline Lender such participations in such outstanding
Swingline
Loans as shall be necessary to cause such Dollar Facility RL
Lenders to share in
such Swingline Loans ratably based upon their respective Dollar
Facility RL
Percentages, provided that (x) all interest payable on the
Swingline Loans shall
be for the account of the Swingline Lender until the date as of
which the
respective participation is required to be purchased and, to the
extent
attributable to the purchased participation, shall be payable to
the participant
from and after such date and (y) at the time any
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purchase of participations pursuant to this sentence is actually
made, the
purchasing Dollar Facility RL Lender shall be required to pay the
Swingline
Lender interest on the principal amount of the participation
purchased for each
day from and including the day upon which the Mandatory Dollar
Facility RL
Borrowing would otherwise have occurred to but excluding the date
of payment for
such participation, at the overnight Federal Funds Rate for the
first three days
and at the rate otherwise applicable to Dollar Facility Revolving
Loans
maintained as Base Rate Loans hereunder for each day thereafter.
2.02 Minimum Borrowing Amounts, etc. The aggregate
principal amount of
each Borrowing of Loans shall not be less than the Minimum
Borrowing Amount
applicable to Borrowings of the respective Type and Tranche of
Loans to be made
or maintained pursuant to the respective Borrowing, provided that
Mandatory
Dollar Facility RL Borrowings shall be made in the amounts required
by Section
2.01(h). More than one Borrowing may be incurred on any day, but at
no time
shall there be outstanding more than (x) twenty (20) Borrowings of
Eurodollar
Loans and (y) ten (10) different maturity dates in the aggregate
for all
outstanding Bankers' Acceptance Loans.
2.03 Notice of Borrowing. (a) Whenever a Borrower desires
to make a
Borrowing of Loans hereunder (excluding (x) Borrowings of Swingline
Loans, (y)
Mandatory Dollar Facility RL Borrowings and (z) Borrowings of
Canadian Prime
Rate Loans to the extent resulting from automatic conversions of
Bankers'
Acceptance Loans as provided in Schedule III), an Authorized
Officer of such
Borrower shall give the Administrative Agent at its Notice Office
at least one
Business Day's prior written notice (or telephonic notice promptly
confirmed in
writing) of each Base Rate Loan or Canadian Prime Rate Loans and at
least three
Business Days' prior written notice (or telephonic notice promptly
confirmed in
writing) of each Eurodollar Loans or Bankers' Acceptance Loans to
be made
hereunder, provided that any such notice shall be deemed to have
been given on a
certain day only if given before 12:00 Noon (New York time) on such
day. Each
such written notice or written confirmation of telephonic notice
(each, a
"Notice of Borrowing"), except as otherwise expressly provided in
Section 2.10,
shall be irrevocable and shall be given by or on behalf of the
respective
Borrower in the form of Exhibit A-1, appropriately completed to
specify: (i) the
aggregate principal amount or Face Amount, as the case may be, of
the Loans to
be made pursuant to such Borrowing (stated in the Applicable
Currency), (ii) the
date of such Borrowing (which shall be a Business Day), (iii)
whether the
respective Borrowing shall consist of Tranche A Term Loans, Tranche
B Term
Loans, Tranche C Term Loans, U.S. Borrower Incremental Term Loans,
Canadian
Borrower Incremental Term Loans, Multicurrency Facility Revolving
Loans or
Dollar Facility Revolving Loans, (iv) in the case of Dollar
Denominated Loans,
whether the Dollar Denominated Loans being made pursuant to such
Borrowing are
to be initially maintained as Base Rate Loans or Eurodollar Loans
and, if
Eurodollar Loans, the Interest Period to be initially applicable
thereto, and
(v) in the case of Canadian Dollar Denominated Revolving Loans,
whether the
respective Borrowing shall consist of Canadian Prime Rate Loans or
Bankers'
Acceptance Loans and, if Bankers' Acceptance Loans, the term
thereof (which
shall comply with the requirements of Schedule III). The
Administrative Agent
shall promptly give each Lender which is required to make Loans of
the Tranche
specified in the respective Notice of Borrowing notice of such
proposed
Borrowing, of such Lender's proportionate share thereof (determined
in
accordance with Section 2.07) and of the other matters required by
the
immediately preceding sentence to be specified in the Notice of
Borrowing.
(b) (i) Whenever the U.S. Borrower desires to make a
Borrowing of
Swingline Loans hereunder, an Authorized Officer of the U.S.
Borrower shall give
the Swingline Lender, not later than 1:00 P.M. (New York time) on
the date such
Swingline Loan is to be made, written notice or telephonic notice
promptly
confirmed in writing of each Swingline Loan to be made hereunder.
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Each such notice shall be irrevocable and shall be given by or on
behalf of the
U.S. Borrower in the form of Exhibit A-1, appropriately completed
to specify:
(A) the date of Borrowing (which shall be a Business Day), and (B)
the aggregate
principal amount of the Swingline Loans to be made pursuant to such
Borrowing.
(ii) Mandatory Dollar Facility RL Borrowings shall be
made upon the
notice specified in Section 2.01(h), with the U.S. Borrower
irrevocably
agreeing, by its incurrence of any Swingline Loan, to the making of
the
Mandatory Dollar Facility Borrowings as set forth in Section
2.01(h).
(c) Without in any way limiting the obligation of either
Borrower to
confirm in writing any telephonic notice permitted to be given
hereunder, the
Administrative Agent or the Swingline Lender (in the case of a
Borrowing of
Swingline Loans) or the respective Issuing Lender (in the case of
the issuance
of Letters of Credit), as the case may be, may, prior to receipt of
written
confirmation, act without liability upon the basis of such
telephonic notice,
believed by the Administrative Agent, the Swingline Lender, or such
Issuing
Lender, as the case may be, in good faith to be from an Authorized
Officer of
such Borrower. In each such case, the Administrative Agent's, the
Swingline
Lender's or the respective Issuing Lender's record of the terms of
such
telephonic notice shall be conclusive evidence of the contents of
such notice,
absent manifest error.
2.04 Disbursement of Funds. Not later than 12:00 Noon
(New York time)
on the date specified in each Notice of Borrowing (or (x) in the
case of
Swingline Loans, not later than 1:00 P.M. (New York time) on the
date specified
pursuant to Section 2.03(b)(i) and (y) in the case of Mandatory
Dollar Facility
RL Borrowings, not later than 10:00 A.M. (New York time) on the
date specified
in Section 2.01(h)), each Lender with a Commitment under the
respective Tranche
(or each Lender required to make Loans pursuant to the respective
Mandatory
Dollar Facility RL Borrowing), will make available its pro rata
portion
(determined in accordance with Section 2.07) of each such Borrowing
requested to
be made on such date (or, in the case of Swingline Loans, the
Swingline Lender
shall make available the full amount thereof). All such amounts
shall be made
available in U.S. Dollars (in the case of Dollar Denominated Loans)
or in
Canadian Dollars (in the case of Canadian Dollar Denominated
Loans), as the case
may be, and in immediately available funds at the Payment Office of
the
Administrative Agent, and the Administrative Agent will make
available to the
respective Borrower at the Payment Office or such other location as
may be
reasonably satisfactory to the Administrative Agent and specified
in the
relevant Notice of Borrowing (or to the Swingline Lender, in the
case of a
Mandatory Dollar Facility RL Borrowing) the aggregate of the
amounts so made
available by the Lenders prior to (x) 1:00 P.M. (New York time) on
such day
(excluding Swingline Loans and Dollar Facility Revolving Loans made
pursuant to
Mandatory Dollar Facility RL Borrowings) and (y) 2:00 P.M. (New
York time) on
such day, in the case of any Swingline Loan, in each case to the
extent of funds
actually received by the Administrative Agent prior to such times
on such day.
Unless the Administrative Agent shall have been notified by any
Lender prior to
the date of Borrowing that such Lender does not intend to make
available to the
Administrative Agent such Lender's portion of any Borrowing to be
made on such
date, the Administrative Agent may assume that such Lender has made
such amount
available to the Administrative Agent on such date of Borrowing and
the
Administrative Agent may, in reliance upon such assumption, make
available to
the relevant Borrower a corresponding amount. If such corresponding
amount is
not in fact made available to the Administrative Agent by such
Lender, the
Administrative Agent shall be entitled to recover such
corresponding amount on
demand from such Lender. If such Lender does not pay such
corresponding amount
forthwith upon the Administrative Agent's demand therefor, the
Administrative
Agent shall promptly notify the relevant Borrower to
-58-
pay immediately such corresponding amount to the Administrative
Agent and such
Borrower shall immediately pay such corresponding amount to the
Administrative
Agent. The Administrative Agent shall also be entitled to recover
on demand from
such Lender or the U.S. Borrower or the Canadian Borrower, as the
case may be,
interest on such corresponding amount in respect of each day from
the date such
corresponding amount was made available by the Administrative Agent
to the
respective Borrower until the date such corresponding amount is
recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered
from such
Lender, the overnight Federal Funds Rate (or, in the case of
Canadian Dollar
Denominated Loans, the cost to the Administrative Agent of
acquiring overnight
funds in Canadian Dollars) and (ii) if recovered from the
respective Borrower,
the rate of interest applicable to the respective Borrowing, as
determined
pursuant to Section 2.08. Nothing in this Section 2.04 shall be
deemed to
relieve any Lender from its obligation to make Loans hereunder or
to prejudice
any rights which the relevant Borrower may have against any Lender
as a result
of any failure by such Lender to make Loans hereunder.
2.05 Notes. (a) Subject to the provisions of Section
2.05(j), the
Canadian Borrower's (in the case of Tranche A Term Loans, Tranche B
Term Loans,
Canadian Borrower Incremental Term Loans and Multicurrency Facility
Revolving
Loans) and the U.S. Borrower's (in the case of Tranche C Term
Loans, U.S.
Borrower Incremental Term Loans, Dollar Facility Revolving Loans
and Swingline
Loans) obligation to pay the principal of, and interest on, the
Loans made by
each Lender shall be evidenced (i) if Tranche A Term Loans, by a
promissory note
duly executed and delivered by the Canadian Borrower substantially
in the form
of Exhibit B-1 with blanks appropriately completed in conformity
herewith (each,
a "Tranche A Term Note" and, collectively, the "Tranche A Term
Notes"), (ii) if
Tranche B Term Loans, by a promissory note duly executed and
delivered by the
Canadian Borrower substantially in the form of Exhibit B-2 with
blanks
appropriately completed in conformity herewith (each, a "Tranche B
Term Note"
and, collectively, the "Tranche B Term Notes"), (iii) if Tranche C
Term Loans,
by a promissory note duly executed and delivered by the U.S.
Borrower
substantially in the form of Exhibit B-3, with blanks appropriately
completed in
conformity herewith (each, a "Tranche C Term Note" and,
collectively, the
"Tranche C Term Notes"), (iv) if Incremental Term Loans, by a
promissory note
duly executed and delivered by the Incremental Term Loan Borrower
for such
Tranche substantially in the form of Exhibit B-4, with blanks
appropriately
completed in conformity herewith (each, an "Incremental Term Note"
and,
collectively, the "Incremental Term Notes"), (v) if Multicurrency
Facility
Revolving Loans, by a promissory note duly executed and delivered
by the
Canadian Borrower substantially in the form of Exhibit B-5, with
blanks
appropriately completed in conformity herewith (each, a
"Multicurrency Facility
Revolving Note" and, collectively, the "Multicurrency Facility
Revolving
Notes"), (vi) if Dollar Facility Revolving Loans, by a promissory
note duly
executed and delivered by the U.S. Borrower substantially in the
form of Exhibit
B-6, with blanks appropriately completed in conformity herewith
(each, a "Dollar
Facility Revolving Note" and, collectively, the "Dollar Facility
Revolving
Notes"), and (vii) if Swingline Loans, by a promissory note duly
executed and
delivered by the U.S. Borrower substantially in the form of Exhibit
B-7, with
blanks appropriately completed in conformity herewith (the
"Swingline Note").
(b) The Tranche A Term Note issued to each Lender with a
Tranche A
Term Loan Commitment or outstanding Tranche A Term Loans shall (i)
be executed
by the Canadian Borrower, (ii) be payable to such Lender (or an
affiliate
designated by such Lender) or its registered assigns and be dated
the Initial
Borrowing Date (or, in the case of any Tranche A Term Note issued
after the
Initial Borrowing Date, the date of issuance thereof), (iii) be in
a stated
principal amount (expressed in Canadian Dollars) equal to the
Tranche A Term
Loan Commitment of such Lender on the Initial Borrowing Date before
giving
effect to any reductions thereto on such date (or, in the case
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of any Tranche A Term Note issued after the Initial Borrowing Date,
in a stated
principal amount (expressed in Canadian Dollars) equal to the
outstanding
principal amount of the Tranche A Term Loan of such Lender on the
date of the
issuance thereof) (iv) subject to Section 2.14, be payable (in
Canadian Dollars)
in the principal amount of the Tranche A Term Loan evidenced
thereby from time
to time, (v) mature on the Tranche A Term Loan Maturity Date, (vi)
bear interest
as provided in the appropriate clause of Section 2.08 in respect of
the Canadian
Prime Rate Loans evidenced thereby, (vii) be subject to voluntary
repayment as
provided in Section 5.01 and mandatory repayment as provided in
Section 5.02 and
(viii) be entitled to the benefits of this Agreement and the other
Credit
Documents.
(c) The Tranche B Term Note issued to each Lender with a
Tranche B
Term Loan Commitment or outstanding Tranche B Term Loans shall (i)
be executed
by the Canadian Borrower, (ii) be payable to such Lender (or an
affiliate
designated by such Lender) or its registered assigns and be dated
the Initial
Borrowing Date (or, in the case of any Tranche B Term Note issued
after the
Initial Borrowing Date, the date of issuance thereof), (iii) be in
a stated
principal amount (expressed in U.S. Dollars) equal to the Tranche B
Term Loan
Commitment of such Lender on the Initial Borrowing Date (or, in the
case of any
Tranche B Term Note issued after the Initial Borrowing Date, in a
stated
principal amount (expressed in U.S. Dollars) equal to the
outstanding principal
amount of the Tranche B Term Loan of such Lender on the date of the
issuance
thereof) and be payable (in U.S. Dollars) in the principal amount
of the Tranche
B Term Loan evidenced thereby from time to time, (iv) mature on the
Tranche B
Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause
of Section 2.08 in respect of the Base Rate Loans and Eurodollar
Loans, as the
case may be, evidenced thereby, (vi) be subject to voluntary
repayment as
provided in Section 5.01 and mandatory repayment as provided in
Section 5.02 and
(vii) be entitled to the benefits of this Agreement and the other
Credit
Documents.
(d) The Tranche C Term Note issued to each Lender with a
Tranche C
Term Loan Commitment or outstanding Tranche C Term Loans shall (i)
be executed
by the U.S. Borrower, (ii) be payable to such Lender (or an
affiliate designated
by such Lender) or its registered assigns and be dated the Initial
Borrowing
Date (or, in the case of any Tranche C Term Note issued after the
Initial
Borrowing Date, the date of issuance thereof), (iii) be in a stated
principal
amount (expressed in U.S. Dollars) equal to the Tranche C Term Loan
Commitment
of such Lender on the Initial Borrowing Date before giving effect
to any
reductions thereto on such date (or, in the case of any Tranche C
Term Note
issued after the Initial Borrowing Date, in a stated principal
amount (expressed
in U.S. Dollars) equal to the outstanding principal amount of the
Tranche C Term
Loan of such Lender on the date of the issuance thereof) and be
payable (in U.S.
Dollars) in the principal amount of the Tranche C Term Loan
evidenced thereby
from time to time, (iv) mature on the Tranche C Term Loan Maturity
Date, (v)
bear interest as provided in the appropriate clauses of Section
2.08 in respect
of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced
thereby, (vi) be subject to voluntary repayment as provided in
Section 5.01 and
mandatory repayment as provided in Section 5.02 and (vii) be
entitled to the
benefits of this Agreement and the other Credit Documents.
(e) The Incremental Term Note issued to each Lender with
an
Incremental Term Loan Commitment or outstanding Incremental Term
Loans under a
given Tranche shall (i) be executed by the Incremental Term Loan
Borrower for
such Tranche, (ii) be payable to such Lender (or an affiliate
designated by such
Lender) or its registered assigns and be dated the date of issuance
thereof,
(iii) be in a stated principal amount (expressed in U.S. Dollars or
Canadian
Dollars, as applicable) equal to the Incremental Term Loan
Commitment of such
Lender on the respective Incremental Term Loan Borrowing Date
(prior to the
incurrence of any Incremental Term Loans
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pursuant thereto on such date) (or, if issued thereafter, be in a
stated
principal amount (expressed in U.S. Dollars or Canadian Dollars, as
applicable)
equal to the outstanding principal amount of the Incremental Term
Loans of such
Lender on the date of issuance thereof) and be payable (in U.S.
Dollars or
Canadian Dollars, as applicable) in the principal amount of the
Incremental Term
Loans evidenced thereby from time to time, (iv) mature on the
respective
Incremental Term Loan Maturity Date, (v) bear interest as provided
in the
appropriate clause of Section 2.08 in respect of Base Rate Loans,
Canadian Prime
Rate Loans or Eurodollar Loans, as applicable, evidenced thereby,
(vi) be
subject to voluntary prepayment as provided in Section 5.01 and
mandatory
repayment as provided in Section 5.02 and (vii) be entitled to the
benefits of
this Agreement and the other Credit Documents.
(f) The Multicurrency Facility Revolving Note issued to
each
Multicurrency Facility RL Lender shall (i) be executed by the
Canadian Borrower,
(ii) be payable to the order of such Multicurrency Facility RL
Lender (or an
affiliate designated by such Multicurrency Facility RL Lender) or
its registered
assigns and be dated the Initial Borrowing Date (or, if issued
thereafter, the
date of issuance thereof), (iii) be in a stated principal amount
(expressed in
U.S. Dollars) equal to the Multicurrency Facility Revolving Loan
Commitment of
such Multicurrency Facility RL Lender on the date of issuance
thereof (or, if
issued after the termination of such Multicurrency Facility
Revolving Loan
Commitment, in an amount equal to the Individual Multicurrency
Facility RL
Exposure of the respective Multicurrency Facility RL Lender),
provided that if,
because of fluctuations in exchange rates after the date of
issuance thereof,
the Multicurrency Facility Revolving Note of any Multicurrency
Facility RL
Lender would not be at least as great as the outstanding principal
amount
(taking the U.S. Dollar Equivalent of all Canadian Dollar
Denominated Revolving
Loans evidenced thereby) of the Multicurrency Facility Revolving
Loans made by
such Multicurrency Facility RL Lender at any time outstanding, the
respective
Multicurrency Facility RL Lender may request (and in such case the
Canadian
Borrower shall promptly execute and deliver) a new Multicurrency
Facility
Revolving Note in an amount equal to the aggregate principal amount
(taking the
U.S. Dollar Equivalent of all Canadian Dollar Denominated Revolving
Loans
evidenced thereby) of the Multicurrency Facility Revolving Loans of
such
Multicurrency Facility RL Lender outstanding on the date of the
issuance of such
new Multicurrency Facility Revolving Note, (iv) with respect to
each
Multicurrency Facility Revolving Loan evidenced thereby, be payable
(subject to
Section 2.14) in the respective Available Currency in which such
Multicurrency
Facility Revolving Loan was made, provided that the obligations
with respect to
each Canadian Dollar Denominated Revolving Loan evidenced thereby
shall be
subject to conversion into Dollar Denominated Loans as provided in
(and in the
circumstances contemplated by) Section 2.14, (v) mature on the
Revolving Loan
Maturity Date, (vi) bear interest as provided in the appropriate
clause of
Section 2.08 in respect of the Base Rate Loans, Canadian Prime Rate
Loans or
Eurodollar Loans, as applicable, evidenced thereby, (vii) be
subject to
voluntary prepayment as provided in Section 5.01 and mandatory
repayment as
provided in Section 5.02 and (viii) be entitled to the benefits of
this
Agreement and the other Credit Documents.
(g) The Dollar Facility Revolving Note issued to each
Dollar Facility
RL Lender shall (i) be executed by the U.S. Borrower, (ii) be
payable to the
order of such Dollar Facility RL Lender or its registered assigns
and be dated
the Initial Borrowing Date (or, if issued thereafter, the date of
issuance
thereof), (iii) be in a stated principal amount (expressed in U.S.
Dollars)
equal to the Dollar Facility Revolving Loan Commitment of such
Dollar Facility
RL Lender on the date of issuance thereof (or, if issued after the
date of the
termination of such Dollar Facility Revolving Loan Commitment, in a
stated
principal amount equal to the Individual Dollar Facility RL
Exposure of the
respective Dollar Facility RL Lender) and be payable in U.S.
Dollars in the
outstanding principal amount of Dollar Facility Revolving Loans
evidenced
thereby, (iv) mature on the Revolving Loan
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Maturity Date, (v) bear interest as provided in the appropriate
clauses of
Section 2.08 in respect of Base Rate Loans and Eurodollar Loans, as
the case may
be, evidenced thereby, (vi) be subject to voluntary prepayment as
provided in
Section 5.01 and mandatory repayment as provided in Section 5.02
and (vii) be
entitled to the benefits of this Agreement and the other Credit
Documents.
(h) The Swingline Note issued to the Swingline Lender
shall (i) be
executed by the U.S. Borrower, (ii) be payable to the order of the
Swingline
Lender or its registered assigns and be dated the Initial Borrowing
Date, (iii)
be in a stated principal amount (expressed in U.S. Dollars) equal
to the Maximum
Swingline Amount and be payable in U.S. Dollars in the principal
amount of the
outstanding Swingline Loans evidenced thereby from time to time,
(iv) mature on
the Swingline Expiry Date, (v) bear interest as provided in the
appropriate
clause of Section 2.08 in respect of the Base Rate Loans evidenced
thereby, (vi)
be subject to voluntary prepayment as provided in Section 5.01 and
mandatory
repayment as provided in Section 5.02 and (vii) be entitled to the
benefits of
this Agreement and the other Credit Documents.
(i) Each Lender will note on its internal records the
amount of each
Loan made by it and each payment in respect thereof and will prior
to any
transfer of any of its Notes endorse on the reverse side thereof
the outstanding
principal amount of Loans evidenced thereby. Failure to make any
such notation
or any error in any such notation or endorsement shall not affect
either
Borrower's obligations in respect of any Loans.
(j) Notwithstanding anything to the contrary contained
above or
elsewhere in this Agreement, Notes shall only be delivered to
Lenders that at
any time specifically request the delivery of such Notes. No
failure of any
Lender to request or obtain a Note evidencing its Loans to either
Borrower shall
affect or in any manner impair the obligations of the respective
Borrower to pay
the Loans (and all related Obligations) which would otherwise be
evidenced
thereby in accordance with the requirements of this Agreement, and
shall not in
any way affect the security or guaranties therefor provided
pursuant to the
various Credit Documents. Any Lender that does not have a Note
evidencing its
outstanding Loans shall in no event be required to make the
notations otherwise
described in preceding clause (i). At any time when any Lender
requests the
delivery of a Note to evidence any of its Loans, the relevant
Borrower shall
promptly execute and deliver to the respective Lender the requested
Note or
Notes in the appropriate amount or amounts to evidence such Loans.
2.06 Conversions. (a) Each Borrower shall have the option
to convert,
on any Business Day occurring after the Initial Borrowing Date, all
or a portion
equal to at least the applicable Minimum Borrowing Amount (and, if
greater, in
an integral multiple of U.S.$500,000) of the outstanding principal
amount of
Dollar Denominated Loans (other than Swingline Loans, which shall
at all times
be maintained as Base Rate Loans) made pursuant to one or more
Borrowings of one
or more Types of Dollar Denominated Loans under a single Tranche
into a
Borrowing or Borrowings of another Type of Dollar Denominated Loan
under such
Tranche, provided that (i) except as otherwise provided in Section
2.10(b) or
unless the respective Borrower pays all amounts owing pursuant to
Section 2.11
concurrently with any such conversion, Eurodollar Loans may be
converted into
Base Rate Loans only on the last day of an Interest Period
applicable to the
Eurodollar Loans being converted, (ii) no such partial conversion
of Eurodollar
Loans shall reduce the outstanding principal amount of such
Eurodollar Loans
made pursuant to a single Borrowing to less than the applicable
Minimum
Borrowing Amount applicable thereto, (iii) Base Rate Loans may not
be converted
into Eurodollar Loans if an Event of Default is in existence on the
date of
conversion and the Administrative Agent (on behalf of the Required
Lenders) has
given notice to the U.S.
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Borrower that no such conversion shall be permitted while such
Event of Default
is continuing, and (iv) unless the Administrative Agent has
determined that the
Syndication Date has occurred (at which time this clause (iv) shall
no longer be
applicable), prior to the 35th day after the Initial Borrowing
Date, conversions
of Base Rate Loans into Eurodollar Loans may only be made if any
such conversion
is effective on the first day of the first, second, third or fourth
Interest
Period referred to in clause (B) of the proviso appearing in each
of Sections
2.01(b)(iii) and 2.01(c)(iii) and so long as such conversion does
not result in
a greater number of Borrowings of Eurodollar Loans prior to the
35th day after
the Initial Borrowing Date as are permitted under Sections
2.01(b)(iii) and
2.01(c)(iii) and (v) no conversion pursuant to this Section 2.06
shall result in
a greater number of Borrowings of Eurodollar Loans than is
permitted under
Section 2.02. Each such conversion shall be effected by a Borrower
by giving the
Administrative Agent at its Notice Office prior to 12:00 Noon (New
York time) at
least three Business Days' prior notice (each, a "Notice of
Conversion/Continuation") in the form of Exhibit A-2, appropriately
completed to
specify the Dollar Denominated Loans to be so converted, the
Borrowing or
Borrowings pursuant to which such Dollar Denominated Loans were
made and, if to
be converted into Eurodollar Loans, the Interest Period to be
initially
applicable thereto. The Administrative Agent shall give each Lender
prompt
notice of any such proposed conversion affecting any of its Dollar
Denominated
Loans.
(b) Mandatory and voluntary conversions of Bankers'
Acceptance Loans
into Canadian Prime Rate Loans shall be made in the circumstances,
and to the
extent, provided in Schedule III. Except as otherwise provided
under Section
2.14, Bankers' Acceptance Loans shall not be permitted to be
converted into any
other Type of Loan prior to the maturity date of the respective
Bankers'
Acceptance or B/A Equivalent Note, as the case may be.
(c) The Canadian Borrower shall have the option to
convert on any
Business Day occurring on or after the Initial Borrowing Date, all
or a portion
at least equal to the applicable Minimum Borrowing Amount of the
outstanding
principal amount of Canadian Prime Rate Loans made pursuant to one
or more
Borrowings under a single Tranche into a Borrowing or Borrowings of
Bankers'
Acceptance Loans under such Tranche; provided, that (i) Canadian
Prime Rate
Loans may not be converted into Bankers' Acceptance Loans if an
Event of Default
is in existence on the date of such conversion and the
Administrative Agent (on
behalf of the Required Lenders) has given notice to the Canadian
Borrower that
no such conversion shall be permitted while such Event of Default
is continuing
and (ii) Borrowings of Bankers' Acceptance Loans resulting from
this Section
2.06 shall be limited in number as provided in Section 2.02. Each
such
conversion shall be effected by the Canadian Borrower by giving the
Administrative Agent at its Notice Office, prior to 12:00 Noon (New
York time),
at least three Business Days prior to the date of the proposed
conversion, a
Notice of Conversion/Continuation specifying the Canadian Dollar
Denominated
Loans to be so converted into Bankers' Acceptance Loans, the
Borrowing or
Borrowings pursuant to which such Canadian Dollar Denominated Loans
were made
and the term of the proposed Borrowing of Bankers' Acceptance Loans
(which, in
each case, shall comply with the requirements of Schedule III). The
Administrative Agent shall give each Multicurrency Facility RL
Lender prompt
notice of any such proposed conversion affecting any of its
Multicurrency
Facility Revolving Loans maintained as Canadian Prime Rate Loans.
Upon any such
conversion, the proceeds thereof will be deemed to be applied
directly on the
day of such conversion to prepay the outstanding principal amount
of the
Multicurrency Facility Revolving Loans being converted.
2.07 Pro Rata Borrowings. All Borrowings of Tranche A
Term Loans,
Tranche B Term Loans, Tranche C Term Loans, Incremental Term Loans,
Multicurrency Facility Revolving Loans and Dollar Facility
Revolving Loans
(including Mandatory Dollar Facility RL Borrowings)
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under this Agreement shall be incurred from the Lenders pro rata on
the basis of
such Lenders' Tranche A Term Loan Commitments, Tranche B Term Loan
Commitments,
Tranche C Term Loan Borrowing Amounts, Incremental Term Loan
Commitments,
Multicurrency Facility RL Percentages or Dollar Facility RL
Percentages, as the
case may be. All Borrowings of Swingline Loans shall be incurred
from the
Swingline Lender. It is understood that no Lender shall be
responsible for any
default by any other Lender of its obligation to make Loans
hereunder and that
each Lender shall be obligated to make the Loans provided to be
made by it
hereunder, regardless of the failure of any other Lender to make
its Loans
hereunder.
2.08 Interest. (a) The U.S. Borrower hereby agrees to pay
(in the case
of Tranche C Term Loans, U.S. Borrower Incremental Term Loans and
Dollar
Facility Revolving Loans, in each case maintained as Base Rate
Loans, and
Swingline Loans) and the Canadian Borrower hereby agrees to pay (in
the case of
Tranche A Term Loans, Tranche B Term Loans, Canadian Borrower
Incremental Term
Loans and Multicurrency Facility Revolving Loans, in each case
maintained as
Base Rate Loans (including any Canadian Dollar Denominated Loan
made to the
Canadian Borrower and converted into a Dollar Denominated Loan
pursuant to
Section 2.14)), interest in respect of the unpaid principal amount
of each Base
Rate Loan made to it from the date the proceeds thereof are made
available to it
(or, in the case of a conversion of any Canadian Dollar Denominated
Loan into a
Dollar Denominated Loan pursuant to Section 2.14, from the date of
the
conversion of such Loan) until the earlier of (i) the maturity
(whether by
acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of
such Base Rate Loan to a Eurodollar Loan pursuant to Section
2.06(a), at a rate
per annum which shall be equal to the sum of the Base Rate in
effect from time
to time during the period such Base Rate Loan is outstanding plus
the relevant
Applicable Margin as in effect from time to time.
(b) The U.S. Borrower hereby agrees to pay (in the case
of Tranche C
Term Loans, U.S. Borrower Incremental Term Loans and Dollar
Facility Revolving
Loans maintained as Eurodollar Loans) and the Canadian Borrower
hereby agrees to
pay (in the case of Tranche B Term Loans, Multicurrency Facility
Revolving Loans
and Canadian Borrower Incremental Term Loans maintained as
Eurodollar Loans),
interest in respect of the unpaid principal amount of each
Eurodollar Loan made
to it from the date the proceeds thereof are made available to it
until the
earlier of (i) the maturity (whether by acceleration or otherwise)
of such
Eurodollar Loan and (ii) the conversion of such Eurodollar Loan to
a Base Rate
Loan pursuant to Sections 2.06, 2.09 or 2.10, as applicable, at a
rate per annum
which shall, during each Interest Period applicable thereto, be
equal to the sum
of the Eurodollar Rate for such Interest Period plus the relevant
Applicable
Margin as in effect from time to time.
(c) The Canadian Borrower agrees to pay interest in
respect of the
unpaid principal amount of each Canadian Prime Rate Loan made to it
from the
date the proceeds thereof are made available to it (which shall, in
the case of
a conversion contemplated by Schedule III, be deemed to be the date
upon which a
maturing Bankers' Acceptance or B/A Equivalent Note is converted
into a Canadian
Prime Rate Loan pursuant to said Schedule III, with the proceeds
thereof to be
equal to the full Face Amount of such maturing Bankers' Acceptance
or B/A
Equivalent Note), until the earlier of (i) the maturity thereof
(whether by
acceleration, or otherwise) and (ii) the conversion of such
Canadian Prime Rate
Loan to a Bankers' Acceptance Loan pursuant to Section 2.06(c), at
a rate per
annum which shall be equal to the sum of the Canadian Prime Rate in
effect from
time to time during the period such Canadian Prime Rate Loan is
outstanding plus
the relevant Applicable Margin as in effect from time to time.
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(d) Overdue principal and, to the extent permitted by
law, overdue
interest in respect of each Loan and any other overdue amount
payable hereunder
shall, in each case, bear interest at a rate per annum (1) in the
case of
overdue principal of, and interest or other amounts owing with
respect to, Loans
and any other amounts owing in Canadian Dollars, equal to 2% per
annum in excess
of the Applicable Margin for Canadian Prime Rate Loans plus the
Canadian Prime
Rate, each as in effect from time to time, and (2) in all other
cases, equal to
the greater of (x) 2% per annum in excess of the rate otherwise
applicable to
Base Rate Loans maintained pursuant to the respective Tranche (or,
if the
overdue amount owing does not relate to any specific Tranche, the
rate otherwise
applicable to Tranche C Term Loans which are maintained as Base
Rate Loans) from
time to time and (y) the rate which is 2% in excess of the rate
then borne by
such Loans, in each case with such interest to be payable on
demand.
(e) Accrued (and theretofore unpaid) interest shall be
calculated
daily and payable (i) in respect of each Base Rate Loan and each
Swingline Loan,
quarterly in arrears on each Quarterly Payment Date, (ii) in
respect of each
Canadian Prime Rate Loan, monthly in arrears on the last Business
Day of each
calendar month, (iii) in respect of each Eurodollar Loan, on (x)
the date of any
conversion into a Base Rate Loan pursuant to Sections 2.06(a),
2.09, 2.10(b) or
2.14, as applicable (on the amount converted) and (y) the last day
of each
Interest Period applicable thereto and, in the case of an Interest
Period in
excess of three months, on each date occurring at three month
intervals after
the first day of such Interest Period and (iv) in respect of each
Loan (other
than Bankers Acceptance Loans), on (x) the date of any prepayment
or repayment
thereof (on the amount prepaid or repaid), (y) at maturity (whether
by
acceleration or otherwise) and (z) after such maturity, on demand.
(f) All computations of interest hereunder shall be made
in accordance
with Section 13.07(b) and (c).
(g) Upon each Interest Determination Date, the
Administrative Agent
shall determine the Eurodollar Rate for the respective Interest
Period or
Interest Periods and shall promptly notify the respective Borrower
and the
respective Lenders thereof. Each such determination shall, absent
manifest
error, be final and conclusive and binding on all parties hereto.
2.09 Interest Periods. At the time a Borrower gives any
Notice of
Borrowing or Notice of Conversion/Continuation in respect of the
making of, or
conversion into, any Eurodollar Loans (in the case of the initial
Interest
Period applicable thereto) or on the third Business Day prior to
the expiration
of an Interest Period applicable to such Eurodollar Loans (in the
case of any
subsequent Interest Period), the respective Borrower shall have the
right to
elect, by having an Authorized Officer of such Borrower give the
Administrative
Agent notice thereof, the interest period (each, an "Interest
Period")
applicable to such Eurodollar Loans, which Interest Period shall,
at the option
of such Borrower, be (x) one-week periods to the extent required by
clause (B)
of the provisos appearing in Sections 2.01(b)(iii) and 2.01(c)(iii)
and clause
(iv) of the proviso appearing in Section 2.06(a)) and (y) in all
other cases,
one, two, three or six-month period or, to the extent agreed to by
all Lenders
required to make Loans under the respective Tranche, a nine or
twelve-month
period; provided that:
(i) all Eurodollar Loans comprising the same Borrowing
shall at all
times have the same Interest Period;
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(ii) the initial Interest Period for any Eurodollar Loan
shall
commence on the date of Borrowing of such Eurodollar Loan
(including, in
the case of Dollar Denominated Loans, the date of any
conversion thereto
from a Borrowing of Base Rate Loans) and each Interest Period
occurring
thereafter in respect of such Eurodollar Loan shall commence
on the day on
which the next preceding Interest Period applicable thereto
expires;
(iii) if any Interest Period relating to a Eurodollar
Loan begins on a
day for which there is no numerically corresponding day in the
calendar
month at the end of such Interest Period, such Interest Period
shall end on
the last Business Day of such calendar month;
(iv) if any Interest Period for a Eurodollar Loan would
otherwise
expire on a day which is not a Business Day, such Interest
Period shall
expire on the next succeeding Business Day; provided, however,
that if any
Interest Period for a Eurodollar Loan would otherwise expire
on a day which
is not a Business Day but is a day of the month after which no
further
Business Day occurs in such month, such Interest Period shall
expire on the
next preceding Business Day;
(v) no Interest Period in respect of any Borrowing under
a given
Tranche of Loans shall be selected which extends beyond the
respective
Maturity Date for such Tranche of Loans;
(vi) no Interest Period may be elected at any time an
Event of Default
is then in existence if the Administrative Agent (on the
behalf of the
Required Lenders) has given notice to the U.S. Borrower that
no Interest
Period may be elected while such Event of Default is
continuing; and
(vii) no Interest Period in respect of any Borrowing of
any Tranche of
Term Loans shall be elected which extends beyond any date upon
which a
Scheduled Repayment for the respective Tranche of Term Loans
will be
required to be made under Section 5.02(b), if, after giving
effect to the
election of such Interest Period, the aggregate principal
amount under such
Tranche of Term Loans which have Interest Periods which will
expire after
such date will be in excess of the aggregate principal amount
under such
Tranche of Term Loans then outstanding less the aggregate
amount of such
required Scheduled Repayment.
With respect to any Eurodollar Loans, at the end of any Interest
Period
applicable to a Borrowing thereof, the U.S. Borrower or the
Canadian Borrower,
as applicable, may elect to split the respective Borrowing under a
single
Tranche into two or more Borrowings of the same Type of such
Tranche or combine
two or more Borrowings of the same Type under a single Tranche into
a single
Borrowing of such Tranche, in each case, by having an Authorized
Officer of the
relevant Borrower give notice thereof together with its election of
one or more
Interest Periods, in each case so long as each resulting Borrowing
(x) has an
Interest Period which complies with the foregoing requirements of
this Section
2.09, (y) has a principal amount which is not less than the Minimum
Borrowing
Amount applicable to Borrowings of the respective Type and Tranche,
and (z) does
not cause a violation of the requirements of Section 2.02. If upon
the
expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans,
the U.S. Borrower or the Canadian Borrower, as applicable, has
failed to elect,
or is not permitted to elect, a new Interest Period to be
applicable to such
Eurodollar Loans as provided above, the relevant Borrower shall be
deemed to
have elected, to convert such Eurodollar Loans into Base Rate
Loans.
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2.10 Increased Costs; Illegality; etc. (a) In the event
that any
Lender shall have determined in good faith (which determination
shall, absent
manifest error, be final and conclusive and binding upon all
parties hereto but,
with respect to clauses (i) and (iv) below, may be made only by the
Administrative Agent):
(i) on any Interest Determination Date that, by reason of
any changes
arising after the Effective Date affecting the interbank
Eurodollar market,
adequate and fair means do not exist for ascertaining the
applicable
interest rate on the basis provided for in the definition of
the respective
Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased
costs or
reductions in the amounts received or receivable hereunder
with respect to
any Eurodollar Loans because of (x) any change since the
Effective Date in
any applicable law or governmental rule, regulation, order,
guideline or
request (whether or not having the force of law) or in the
interpretation
or administration thereof and including the introduction of
any new law or
governmental rule, regulation, order, guideline or request,
such as, for
example, but not limited to (A) a change in the basis of
taxation of
payments to a Lender of the principal of or interest on the
Loans or any
other amounts payable hereunder (except for changes in the
rate of tax on,
or determined by reference to, the net income or net profits
of such Lender
imposed by the jurisdiction in which its principal office or
applicable
lending office is located), or (B) a change in official
reserve
requirements, but, in all events, excluding reserves required
under
Regulation D to the extent included in the computation of the
Eurodollar
Rate and/or (y) other circumstances affecting such Lender, the
interbank
Eurodollar market or the position of such Lender in such
market (whether or
not such Lender was a Lender at the time of such occurrence);
or
(iii) at any time after the Effective Date, that the
making or
continuance of any Eurodollar Loan has been made unlawful by
any law or
governmental rule, regulation or order (or would conflict with
any
governmental rule, regulation, guideline, request or order not
having the
force of law but with which such Lender customarily complies
even though
the failure to comply therewith would not be unlawful), or
impracticable as
a result of a contingency occurring after the Effective Date
which
materially and adversely affects the interbank Eurodollar
market; or
(iv) at any time that Bankers' Acceptance Loans are not
available, as
determined in good faith by the Administrative Agent, acting
reasonably, to
fund any Borrowing of Bankers' Acceptance Loans requested
pursuant to
Section 2.01(a), (d) or (e);
then, and in any such event, such Lender (or the Administrative
Agent, in the
case of clauses (i) or (iv) above) shall promptly give notice (by
telephone
confirmed in writing) to the affected Borrower, and, except in the
case of
clauses (i) and (iv) above, to the Administrative Agent of such
determination
(which notice the Administrative Agent shall promptly transmit to
each of the
other Lenders). Thereafter (w) in the case of clause (i) above, in
the event
Eurodollar Loans are so affected, Eurodollar Loans shall no longer
be available
until such time as the Administrative Agent notifies Holdings, any
affected
Borrower and the Lenders that the circumstances giving rise to such
notice by
the Administrative Agent no longer exist, and any Notice of
Borrowing or Notice
of Conversion/Continuation given by either Borrower with respect to
Eurodollar
Loans which have not yet been incurred (including by way of
conversion) shall be
deemed rescinded by such Borrower, (x) in the case of clause (ii)
above, the
respective Borrower or Borrowers agrees, subject to the
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provisions of Section 13.24 (to the extent applicable), to pay to
such Lender,
upon written demand therefor, such additional amounts (in the form
of an
increased rate of, or a different method of calculating, interest
or otherwise
as such Lender in its sole discretion shall determine) as shall be
required to
compensate such Lender for such increased costs or reductions in
amounts
received or receivable hereunder (with the written notice as to the
additional
amounts owed to such Lender, submitted to the respective Borrower
or Borrowers
by such Lender in accordance with the foregoing to be, absent
manifest error,
final and conclusive and binding on all the parties hereto,
although the failure
to give any such notice shall not release or diminish any of the
respective
Borrower's or Borrowers' obligations to pay additional amounts
pursuant to this
Section 2.10(a) upon the subsequent receipt of such notice), (y) in
the case of
clause (iii) above, the respective Borrower or Borrowers shall take
one of the
actions specified in Section 2.10(b) as promptly as possible and,
in any event,
within the time period required by law and (z) in the case of
clause (iv) above,
Bankers' Acceptance Loans (exclusive of Bankers' Acceptance Loans
which have
theretofore been funded) shall no longer be available until such
time as the
Administrative Agent notifies the Borrowers and the Lenders that
the
circumstances giving rise to such notice by the Administrative
Agent no longer
exist, and any Notice of Borrowing given by the Canadian Borrower
with respect
to such Bankers' Acceptance Loans which have not been incurred
shall be deemed
rescinded by the Canadian Borrower. Each of the Administrative
Agent and each
Lender agrees that if it gives notice to either Borrower of any of
the events
described in clause (i), (ii), (iii) or (iv) above, it shall
promptly notify
such Borrower and, in the case of any such Lender, the
Administrative Agent, if
such event ceases to exist. Notwithstanding the foregoing, for the
avoidance of
doubt, this Section 2.10 shall not apply to increased costs with
respect to
Taxes which are subject to indemnity under Section 5.04 hereof or
any taxes that
would have been subject to indemnity under Section 5.04 hereof but
for an
exclusion contained therein.
(b) At any time that any Eurodollar Loan is affected by
the
circumstances described in Section 2.10(a)(ii) or (iii), the
affected Borrower
may (and in the case of a Eurodollar Loan affected by the
circumstances
described in Section 2.10(a)(iii) shall) either (x) if the affected
Eurodollar
Loan is then being made initially or pursuant to a conversion,
cancel the
respective Borrowing by giving the Administrative Agent telephonic
notice
(confirmed in writing) on the same date that such Borrower was
notified by the
affected Lender or the Administrative Agent pursuant to Section
2.10(a)(ii) or
(iii) or (y) if the affected Eurodollar Loan is then outstanding,
upon at least
three Business Days' written notice to the Administrative Agent,
require the
affected Lender to convert such Eurodollar Loan into a Base Rate
Loan (which
conversion, in the case of the circumstance described in Section
2.10(a)(iii),
shall occur no later than the last day of the Interest Period then
applicable to
such Eurodollar Loan or such earlier day as shall be required by
applicable
law); provided that, if more than one Lender is affected at any
time, then all
affected Lenders must be treated the same pursuant to this Section
2.10(b).
(c) If any Lender shall have determined after the
Effective Date that
the adoption or effectiveness after the Effective Date of any
applicable law,
rule or regulation regarding capital adequacy, or any change
therein, or any
change after the Effective Date in the interpretation or
administration thereof
by any governmental authority, central bank or comparable agency
charged with
the interpretation or administration thereof, or compliance by such
Lender or
any corporation controlling such Lender with any request or
directive regarding
capital adequacy (whether or not having the force of law) of any
such authority,
central bank or comparable agency, has or would have the effect of
reducing the
rate of return on such Lender's or such other corporation's capital
or assets as
a consequence of such Lender's Commitment or Commitments hereunder
or its
obligations hereunder to either Borrower to a level below that
which such Lender
or such other corporation could
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have achieved but for such adoption, effectiveness, change or
compliance (taking
into consideration such Lender's or such other corporation's
policies with
respect to capital adequacy), then from time to time, upon written
demand by
such Lender (with a copy to the Administrative Agent), accompanied
by the notice
referred to in the next succeeding sentence of this clause (c),
such Borrower
agrees, subject to the provisions of Section 13.24 (to the extent
applicable),
to pay to such Lender such additional amount or amounts as will
compensate such
Lender or such other corporation for such reduction in the rate of
return to
such Lender or such other corporation. Each Lender, upon
determining in good
faith that any additional amounts will be payable pursuant to this
Section
2.10(c), will give prompt written notice thereof to the relevant
Borrower (a
copy of which shall be sent by such Lender to the Administrative
Agent), which
notice shall set forth such Lender's basis for asserting its rights
under this
Section 2.10(c) and the calculation, in reasonable detail, of such
additional
amounts claimed hereunder, although (subject to the provisions of
Section 13.24
(to the extent applicable)) the failure to give any such notice
shall not
release or diminish such Borrower's obligations to pay additional
amounts
pursuant to this Section 2.10(c) upon the subsequent receipt of
such notice. A
Lender's good faith determination of compensation owing under this
Section
2.10(c) shall, absent manifest error, be final and conclusive and
binding on all
the parties hereto.
2.11 Compensation. Each Borrower severally agrees,
subject to the
provisions of Section 13.24 (to the extent applicable), to
compensate each
Lender, upon its written request (which request shall set forth in
reasonable
detail the basis for requesting such compensation), for all losses,
expenses and
liabilities (including, without limitation, any loss, expense or
liability
incurred by reason of the liquidation or reemployment of deposits
or other funds
required by such Lender to fund its Eurodollar Loans but excluding
any loss of
anticipated profit) which such Lender may sustain: (i) if for any
reason (other
than a default by such Lender or any Agent) a Borrowing of, or
conversion from
or into, Eurodollar Loans does not occur on a date specified
therefor in a
Notice of Borrowing or Notice of Conversion/Continuation (whether
or not
withdrawn by such Borrower or deemed withdrawn pursuant to Section
2.10(a));
(ii) if any repayment (including any repayment made pursuant to
Sections 5.01 or
5.02 or as a result of an acceleration of the Loans pursuant to
Section 11 or as
a result of the replacement of a Lender pursuant to Sections 2.13,
5.01 or
13.12(b)) or conversion of any of its Eurodollar Loans occurs on a
date which is
not the last day of an Interest Period applicable thereto; (iii) if
any
repayment (including any repayment made pursuant to Sections 5.01
or 5.02 or as
a result of an acceleration of the Loans pursuant to Section 11 or
as a result
of the replacement of a Lender pursuant to Sections 2.13 or
13.12(b)) of any
Bankers' Acceptance Loan occurs on a date which is not the maturity
date of the
respective Bankers' Acceptance Loan, as the case may be; (iv) if
any prepayment
of any Eurodollar Loans or Bankers' Acceptance Loans is not made on
any date
specified in a notice of prepayment given by the respective
Borrower or
Borrowers; or (v) as a consequence of (x) any other default by such
Borrower to
repay its Loans when required by the terms of this Agreement or any
Note held by
such Lender or (y) any election made pursuant to Section 2.10(b).
Each Lender's
calculation of the amount of compensation owing pursuant to this
Section 2.11
shall be made in good faith. A Lender's basis for requesting
compensation
pursuant to this Section 2.11 and a Lender's calculation of the
amount thereof,
shall, absent manifest error, be final and conclusive and binding
on all parties
hereto.
2.12 Change of Lending Office. (a) Each Lender may at any
time or from
time to time designate, by written notice to the Administrative
Agent to the
extent not already reflected on Schedule II, one or more lending
offices (which,
for this purpose, may include Affiliates of the respective Lender)
for the
various Loans made, Letters of Credit participated in, by such
Lender
(including, without limitation, by designating a separate lending
office (or
Affiliate) to act as such with respect to Dollar Denominated Loans
and Dollar
Denominated Letter of Credit Outstandings
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versus Canadian Dollar Denominated Loans and Canadian Dollar
Denominated Letter
of Credit Outstandings); provided that, for designations made after
the
Effective Date (unless such designation is made after the
occurrence of a
Sharing Event as a result of any Lender's purchase of Loans
pursuant to Section
2.14), to the extent such designation shall result in increased
costs under
Sections 2.10, 3.06 or 5.04 in excess of those which would be
charged in the
absence of the designation of a different lending office (including
a different
Affiliate of the respective Lender), then the Borrowers shall not
be obligated
to pay such excess increased costs (although if such designation
results in
increased costs, the Borrowers shall be obligated to pay the costs
which would
have applied in the absence of such designation and any subsequent
increased
costs of the type described above resulting from changes after the
date of the
respective designation). Except as provided in the immediately
preceding
sentence, each lending office and Affiliate of any Lender
designated as provided
above shall, for all purposes of this Agreement, be treated in the
same manner
as the respective Lender (and shall be entitled to all indemnities
and similar
provisions in respect of its acting as such hereunder).
(b) Each Lender agrees that upon the occurrence of any
event giving
rise to the operation of Sections 2.10(a)(ii) or (iii), Section
2.10(c), Section
3.06 or Section 5.04 with respect to such Lender, it will, if
requested by the
applicable Borrower by notice to such Lender, use reasonable
efforts (subject to
overall policy considerations of such Lender) to designate another
lending
office for any Loans or Letters of Credit affected by such event,
provided that
such designation is made on such terms that such Lender and its
lending office
suffer no economic, legal or regulatory disadvantage, with the
object of
avoiding the consequence of the event giving rise to the operation
of such
Section. Nothing in this Section 2.12 shall affect or postpone any
of the
obligations of either Borrower or the rights of any Lender provided
in Sections
2.10, 3.06 and 5.04.
2.13 Replacement of Lenders. (x) If any Lender becomes a
Defaulting
Lender, (y) upon the occurrence of any event giving rise to the
operation of
Sections 2.10(a)(ii) or (iii), Section 2.10(c) or (d), Section 3.06
or Section
5.04 with respect to any Lender which results in such Lender
charging to either
Borrower increased costs materially in excess of the average costs
being charged
by the other Lenders in respect of such contingency or (z) in the
case of a
refusal by a Lender to consent to a proposed change, waiver,
discharge or
termination with respect to this Agreement which has been approved
by the
Required Lenders as provided in Section 13.12(b), the U.S. Borrower
shall have
the right, in accordance with the requirements of Section 13.04(b),
to replace
such Lender (the "Replaced Lender") with one or more Eligible
Transferees
(collectively, the "Replacement Lender"), none of whom shall
constitute a
Defaulting Lender at the time of such replacement and each of whom
shall be
reasonably acceptable to the Administrative Agent or, in the case
of a
replacement as provided in Section 13.12(b) where the consent of
the respective
Lender is required with respect to less than all Tranches of its
Loans or
Commitments, at the option of Holdings, to replace only the
Commitments and/or
outstanding Loans of such Lender in respect of each Tranche where
the consent of
such Lender would otherwise be individually required, with
identical Commitments
and/or Loans of the respective Tranche provided by the Replacement
Lender;
provided that:
(i) at the time of any replacement pursuant to this
Section 2.13, the
Replacement Lender shall enter into one or more Assignment and
Assumption
Agreements pursuant to Section 13.04(b) (and with all fees
payable pursuant
to said Section 13.04(b) to be paid by the Replacement Lender)
pursuant to
which the Replacement Lender shall acquire all of the
Commitments and all
then outstanding Loans (or, in the case of the replacement of
less than all
the Tranches of Commitments and outstanding Loans of the
respective
Replaced Lender, all the Commitments and/or all then
outstanding Loans
relating to the Tranche or Tranches with respect to which such
Lender is
being replaced) of, and all participations in all then
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outstanding Letters of Credit issued pursuant to the
respective Tranche or
Tranches where the respective Lender is being replaced by, the
Replaced
Lender and, in connection therewith, shall pay to (x) the
Replaced Lender
in respect thereof an amount equal to the sum (in the relevant
currency or
currencies) of (A) an amount equal to the principal of, and
all accrued
interest on, all then outstanding Loans (including the Face
Amount of any
outstanding Bankers' Acceptances and B/A Equivalent Notes) of
the
respective Replaced Lender under each Tranche with respect to
which such
Replaced Lender is being replaced, (B) an amount equal to all
Unpaid
Drawings (if any) under each Tranche with respect to which the
respective
Replaced Lender is being replaced, in each case that have been
funded by
(and not reimbursed to) such Replaced Lender at such time,
together with
all then unpaid interest with respect thereto at such time,
and (C) an
amount equal to all accrued, but theretofore unpaid, Fees
owing to the
Replaced Lender (but only with respect to the relevant Tranche
or Tranches,
in the case of the replacement of less than all Tranches then
held by the
respective Replaced Lender) pursuant to Section 4.01, (y) in
the case of
the replacement of any Multicurrency Facility Revolving Loan
Commitment
and/or Dollar Facility Revolving Loan Commitment, the
respective Issuing
Lender amounts equal to such Replaced Lender's Multicurrency
Facility RL
Percentage and/or Dollar Facility RL Percentage, as the case
may be, of any
Unpaid Drawings pursuant to Letters of Credit issued pursuant
to the
respective Tranche evidenced by such Commitments (which at
such time remain
Unpaid Drawings) with respect to Letters of Credit issued by
such Issuing
Lender to the extent such amount was not theretofore funded by
such
Replaced Lender, and (z) in the case of any replacement of
Dollar Facility
Revolving Loan Commitments, the Swingline Lender, an amount
equal to such
Replaced Lender's pro rata share of any Mandatory Dollar
Facility RL
Borrowing (as appropriate) (determined in accordance with
Sections 2.01(h)
and 2.07), to the extent such amount was not theretofore
funded by such
Replaced Lender, without duplication;
(ii) all obligations of the Borrowers owing to the
Replaced Lender in
respect of each Tranche where such Replaced Lender is being
replaced (other
than (a) those specifically described in clause (i) above in
respect of
which the assignment purchase price has been, or is
concurrently being,
paid but including all amounts, if any, owing under Section
2.11 or (b)
relating to any Tranche of Loans and/or Commitments of the
respective
Replaced Lender which will remain outstanding after giving
effect to the
respective replacement) shall be paid in full to such Replaced
Lender
concurrently with such replacement; and
(iii) if the respective Replaced Lender has a related
Multicurrency
Facility RL Lender, or if the Replaced Lender is a
Multicurrency Facility
RL Lender which has a related Lender, all of the actions
specified above in
this Section 2.13 shall be taken with respect to both the
respective Lender
and Multicurrency Facility RL Lender (who shall be treated
collectively as
a Replaced Lender).
Upon the execution of the respective Assignment and Assumption
Agreement, the
payment of amounts referred to in clauses (i) and (ii) above, the
recordation of
the assignment on the Register by the Administrative Agent pursuant
to Section
13.17 and, if so requested by the Replacement Lender (when
applicable), delivery
to the Replacement Lender of the appropriate Note or Notes executed
by the
respective Borrower, (x) the Replacement Lender shall become a
Lender hereunder
and, unless the respective Replaced Lender continues to have
outstanding Term
Loans or any Commitment hereunder, the Replaced Lender shall cease
to constitute
a Lender hereunder, except with respect to indemnification
provisions under this
Agreement (including, without limitation, Sections 2.10, 2.11,
3.06, 5.04, 13.01
and 13.06), which shall survive as to such Replaced Lender and (y)
in the case
of
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the replacement of any Multicurrency Facility Revolving Loan
Commitment or
Dollar Facility Revolving Loan Commitment pursuant to this Section
2.13, the
Multicurrency Facility RL Percentages and/or Dollar Facility RL
Percentages, as
the case may be, of the Lenders shall be automatically adjusted at
such time to
give effect to such replacement. In connection with any replacement
of Lenders
pursuant to, and as contemplated by, this Section 2.13, each of the
U.S.
Borrower and the Canadian Borrower hereby irrevocably authorizes
Holdings to
take all necessary action, in the name of the U.S. Borrower or the
Canadian
Borrower, as the case may be, as described above in this Section
2.13 in order
to effect the replacement of the respective Lender or Lenders in
accordance with
the preceding provisions of this Section 2.13.
2.14 Special Provisions Applicable to Lenders Upon the
Occurrence of a
Sharing Event. (a) On the date of the occurrence of a Sharing
Event,
automatically (and without the taking of any action) (x) all then
outstanding
Canadian Dollar Denominated Loans and all Unpaid Drawings in
respect of Letters
of Credit issued for the Canadian Borrower's account owed in
Canadian Dollars,
shall be automatically converted into Loans of the respective
Tranche maintained
in, and Unpaid Drawings of the respective Tranche owing in, U.S.
Dollars (in an
amount equal to the U.S. Dollar Equivalent of the aggregate
principal amount (or
Face Amount, as applicable) of the respective Loans or Unpaid
Drawings on the
date such Sharing Event first occurred, which Loans or Unpaid
Drawings (i) shall
continue to be owed by the Canadian Borrower, (ii) shall at all
times thereafter
be deemed to be Base Rate Loans and (iii) shall be immediately due
and payable
on the date such Sharing Event has occurred) and (y) all principal,
accrued and
unpaid interest and other amounts owing with respect to such
Canadian Dollar
Denominated Loans and Unpaid Drawings shall be immediately due and
payable in
U.S. Dollars, taking the U.S. Dollar Equivalent of such principal,
accrued and
unpaid interest and other amounts. The occurrence of any conversion
of Canadian
Dollar Denominated Loans or Unpaid Drawing to Base Rate Loans as
provided above
in this Section 2.14(a) shall be deemed to constitute, for purposes
of Section
2.11, a prepayment of Loans before the last day of any Interest
Period relating
thereto.
(b) On the date of the occurrence of any Sharing Event,
(i) if any
Swingline Loans are outstanding, one or more Mandatory Dollar
Facility RL
Borrowings shall be made in accordance with the requirements of
Section 2.01(h),
and (ii) if there have been any Drawings pursuant to Letters of
Credit which
have not yet been reimbursed to the respective Issuing Lender
pursuant to
Section 3, the various L/C Participants in the respective Letters
of Credit
shall make payments to the Issuing Lender therefor in accordance
with the
requirements of Section 3.04. Each Lender which is required to make
payments
pursuant to the immediately preceding sentence shall be obligated
to do so in
accordance with the terms of this Agreement. For purposes of making
calculations
pursuant to the following provisions of this Section 2.14, such
payments shall
be deemed to have been made on the date of the occurrence of the
Sharing Event,
before making such calculations. Notwithstanding anything to the
contrary
contained in the immediately preceding sentence, any Lender which
has failed, or
fails, to make any payments required to be made by it as described
in this
clause (b) (and/or the other relevant Sections of this Agreement)
shall remain
obligated to make such payments, together with interest thereon,
and shall be
obligated to the Swingline Lender or the respective Issuing Lender,
as the case
may be, for any damages caused by its delay or failure in making
any payments
required to be made by it as described above.
(c) On the date of the occurrence of a Sharing Event, the
following
actions shall be required to occur: (i) the participations of the
RL Lenders in
all then outstanding Letters of Credit shall be automatically
adjusted so that
each RL Lender shall participate in each outstanding Letter of
Credit (whether a
Multicurrency Facility Letter of Credit or Dollar Facility Letter
of Credit) in
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accordance with their RL Percentages, rather than their
Multicurrency Facility
RL Percentages or their Dollar Facility RL Percentages, as the case
may be, and
(ii) if the outstanding principal of all then outstanding Revolving
Loans and
Unpaid Drawings theretofore paid, and owing to, the respective RL
Lender (after
giving effect to the conversions and events required by Sections
2.14(a) and
(b)), is less than its RL Percentage of the outstanding principal
amount of all
Revolving Loans and the aggregate amount of all Unpaid Drawings at
such time,
then such RL Lender shall purchase, for cash in U.S. Dollars,
participations
from other RL Lenders in their outstanding Revolving Loans and/or
Unpaid
Drawings so that, after giving effect to such purchases by all RL
Lenders which
are in such position, each RL Lender shall have the same credit
exposure (with
respect to Revolving Loans and Unpaid Drawings), as a percentage of
its
Revolving Loan Commitment (before giving effect to any termination
or reduction
thereof at or prior to the occurrence of the respective Sharing
Event), as each
other RL Lender. Any payments made after the date of the respective
Sharing
Event pursuant to the preceding sentence shall be required to be
accompanied by
payments of interest (which shall be distributed by the
Administrative Agent to
the respective Lender or Lenders entitled to receive the respective
cash
payments) at the greater of the Federal Funds Rate or such rate as
may be
determined by the Administrative Agent in accordance with banking
industry
practice on interbank compensation. The foregoing purchases shall
be
accomplished through purchases and sales of participations in the
relevant
obligations as required above, and each Lender hereby agrees, at
the request of
the Administrative Agent, to enter into customary participation
agreements
approved by the Administrative Agent to effect the foregoing. All
purchases of
sales of participating interests pursuant to this Section 2.14(c)
shall be made
in U.S. Dollars. Promptly following the occurrence of a Sharing
Event, the
Administrative Agent shall notify each RL Lender and shall specify
the amount of
U.S. Dollars required from each RL Lender to effect the purchases
and sales by
the various RL Lenders of participating interests in the amounts
required above
(together with accrued interest with respect to the period for the
most recent
payment date through the date of the Sharing Event plus any
additional amounts
payable by either Borrower pursuant to Section 5.04 in respect of
such accrued
and unpaid interest). Promptly upon receipt of such request, each
RL Lender
required to purchase participations as specified above shall
deliver to the
Administrative Agent (in immediately available funds) U.S. Dollars
in the
amounts specified by the Administrative Agent. The Administrative
Agent shall
promptly deliver the amounts so received to the various RL Lenders
who are
selling participations in such amounts as are needed to effect the
purchases of
participations as provided above. Promptly following receipt
thereof, each RL
Lender which had sold participations as provided above (through the
Administrative Agent) will deliver to each RL Lender (through the
Administrative
Agent) which so purchased a participating interest in its Loans or
Unpaid
Drawings a participation certificate dated the date of such
purchase and in such
amounts.
(d) In the event that upon the occurrence of a Sharing
Event any
Letter of Credit shall be outstanding and undrawn in whole or in
part, each RL
Lender shall on the date of the occurrence of such Sharing Event,
and after
giving effect to the purchases and sales of participations on such
date pursuant
to preceding Section 2.14(c), but before giving effect to the
purchases and
sales of participations on such date pursuant to Section 2.14(e),
promptly pay
over to the Administrative Agent, in immediately available funds in
the currency
in which such Letter of Credit is, denominated, an amount equal to
such RL
Lender's RL Percentage of such undrawn face amount, together with
interest
thereon (denominated in the relevant currency) from the date of the
Sharing
Event to the date on which such amount shall be paid to the
Administrative Agent
at a rate per annum equal to that rate determined by the
Administrative Agent in
accordance with banking industry rules or practice on interbank
compensation.
The Administrative Agent shall establish a separate account or
accounts for each
RL Lender in an amount equal to the amount received from such
Lender pursuant to
the preceding sentence. The Administrative Agent shall have sole
dominion and
control
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over each such account (each, a "Special Reserve Account"), and the
amounts
deposited in each Special Reserve Account shall be held in such
Special Reserve
Account until withdrawn as provided in clause (f), (g) or (h) below
in this
Section 2.14. The Administrative Agent shall maintain records
enabling it to
determine the amounts paid over to it and deposited in the Special
Reserve
Accounts. As amounts are drawn under outstanding Letters of Credit
in respect of
which amounts have been paid into the various Special Reserve
Accounts pursuant
to this Section 2.14(d), amounts shall be drawn ratably from the
Special Reserve
Accounts of the various RL Lenders (in accordance with their RL
Percentages) to
pay such amounts. The amounts paid to the Administrative Agent
pursuant to this
clause (d) shall be held as a reserve against the Letter of Credit
Outstandings
shall not constitute Loans or extensions of credit to either
Borrower and shall
not give rise to any obligation on the part of either Borrower to
pay interest
to any Lender, it being agreed that the Borrowers' reimbursement
obligations in
respect of Letters of Credit shall arise only at such times as
drawings or
payments are made thereunder as provided in Section 3.04.
(e) Upon the occurrence of a Sharing Event, but after
giving effect to
the actions required to be taken pursuant to preceding clause (a)
through (d)
(although any failure by any Lender to take the actions required of
it pursuant
to said clauses shall not prevent the actions required hereby, but
the
respective Lender shall continue to be obligated to perform its
obligations as
required above and the Administrative Agent shall be authorized to
make any
equitable adjustments as may be deemed necessary or, in the
reasonable opinion
of the Collateral Agent, advisable pursuant to following clause (i)
of this
Section 2.14), the Lenders shall purchase participations from other
Lenders in
the respective Tranches of Loans (including, in the case of the
Total Revolving
Loan Commitment, participations in each outstanding Letter of
Credit and each
Unpaid Drawing) so that, after giving effect to such purchases,
each Lender
shall have the same credit exposure in each Tranche, at such time
(including,
(x) in the case of the Total Revolving Loan Commitment, a
participation in each
outstanding Letter of Credit and each Unpaid Drawing and (y) a
participation in
each Special Reserve Account established pursuant to Section
2.14(d) and all
amounts deposited therein from time to time or to be returned to
the Lenders in
accordance with the provisions of Section 2.14(g)), whether or not
such Lender
shall previously have participated therein, equal to such Lender's
CAM Exchange
Percentage thereof. The foregoing actions shall be accomplished
pursuant to this
clause (e) through purchases and sales of participations in the
various Tranches
as required hereby, and at the request of the Administrative Agent
each Lender
hereby agrees to enter into customary participation agreements
approved by the
Administrative Agent to evidence same. All purchases and sales of
participations
pursuant to this Section 2.14(e) shall be made in U.S. Dollars. At
the request
of the Administrative Agent, each Lender which has sold
participations in any of
its Tranches and/or Special Reserve Accounts as provided above
(through the
Administrative Agent) will deliver to each Lender (through the
Administrative
Agent) which has so purchased a participation therein a
participation
certificate in the appropriate amount as determined in conjunction
with the
Administrative Agent. It is understood that the amount of funds
delivered by
each Lender shall be calculated on a net basis, giving effect to
both the sales
and purchases of participations by the various Lenders as required
above.
(f) In the event that after the occurrence of a Sharing
Event any
drawing or payment shall be made in respect of a Letter of Credit,
the
Administrative Agent shall, at the request of the respective
Issuing Lender,
withdraw from the Special Reserve Account of each of the Lenders
(in accordance
with each Lender's RL Percentage) any amounts, up to the amount of
such drawing
or payment, deposited in the respective Special Reserve Account and
remaining on
deposit and deliver such amounts to such Issuing Lender, in
satisfaction of the
reimbursement obligations of the various RL Lenders under Section
3.04(c) (but
not of the applicable Borrower under Section 3.05(a)). In the
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event that any Lender shall default on its obligation to pay over
any amount to
the Administrative Agent in respect of any Letter of Credit as
provided in
Section 2.14(d), the respective Issuing Lender shall, in the event
of a drawing
or payment thereunder, have a claim against such Lender to the same
extent as if
such Lender had defaulted on its obligations under Section 3.04(c),
but shall
have no claim against any other Lender, notwithstanding the
exchange of
interests in the applicable Borrower's reimbursement obligations
pursuant to
Section 2.14(e). Each other Lender shall have a claim against such
defaulting
Lender for any damages sustained by it as a result of such default.
(g) In the event that after the occurrence of a Sharing
Event any
Letter of Credit shall terminate or expire undrawn or unpaid upon,
then, if and
so long as the Administrative Agent determines (in its reasonable
discretion)
that adequate funds remain on deposit in the Special Reserve
Accounts of the
various RL Lenders to fund (without giving effect to the purchases
of
participation pursuant to Section 2.14(e)) all remaining drawings
or payments
which could come due in respect of outstanding Letters of Credit,
the
Administrative Agent shall withdraw from the Special Reserve
Account of each
Lender the amount remaining on deposit therein in respect of such
Letter of
Credit (or in any case, such lesser amount as the Administrative
Agent
reasonably determines can be distributed without causing the amount
on deposit
from the various RL Lenders to be less than the remaining exposure
on
outstanding Letters of Credit) and distribute such amount to such
Lender,
provided that, if such amount is not denominated in U.S. Dollars,
the
Administrative Agent shall distribute to each such Lender the U.S.
Dollar
Equivalent of such amount. All amounts received by any Lender
pursuant to this
clause (g) shall, to the extent it has sold participations therein
in accordance
with the requirements of Section 2.14(e), be distributed by it to
the various
participants therein in accordance with their participating
interests.
(h) Pending the withdrawal of any amounts from its
Special Reserve
Account as contemplated above in this Section 2.14, the
Administrative Agent
may, and shall, at the direction of the Required Lenders and
subject to such
rules as the Administrative Agent may prescribe for the avoidance
of
inconvenience, invest such amounts in Permitted Investments.
(i) All determinations by the Administrative Agent
pursuant to this
Section 2.14 shall be made by it in accordance with the provisions
herein and
with the intent being to equitably share the credit risk for all
Tranches
hereunder in accordance with the provisions hereof. Absent manifest
error, all
determinations by the Administrative Agent hereunder shall be
binding on the
Borrowers and each of the Lenders. The Administrative Agent shall
have no
liability to either Borrower or Lender hereunder for any
determinations made by
it hereunder except to the extent resulting from the Administrative
Agent's
gross negligence or willful misconduct (as determined by a court of
competent
jurisdiction).
(j) Upon, and after, the occurrence of a Sharing Event
(i) no further
Credit Events shall be made or occur, (ii) all amounts from time to
time
accruing with respect to, and all amounts from time to time payable
on account
of, Canadian Dollar Denominated Loans (including, without
limitation, any
interest and other amounts which were accrued but unpaid on the
date of such
Sharing Event) shall be payable in U.S. Dollars (taking the U.S.
Dollar
Equivalents of all such amounts on the date of the occurrence of
the respective
Sharing Event, with all calculations for periods after the Sharing
Event being
made as if the respective such Loan had originally been made in
U.S. Dollars)
and shall be distributed by the Administrative Agent for the
account of the
Lenders which made such Loans or are participating therein and
(iii) all
Revolving Loan Commitments of all the RL Lenders shall be
automatically
terminated. Notwithstanding anything to the contrary contained
above, the
failure of any Lender to purchase its participating interests as
required above
in
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any extensions of credit upon the occurrence of a Sharing Event
shall not
relieve any other Lender of its obligation hereunder to purchase
its
participating interests in a timely manner, but no Lender shall be
responsible
for the failure of any other Lender to purchase the participating
interest to be
purchased by such other Lender on any date.
(k) If any amount required to be paid by any Lender
pursuant to this
Section 2.14 is not paid to the Administrative Agent on the date
upon which the
Sharing Event occurred, such Lender shall, in addition to such
aforementioned
amount, also pay to the Administrative Agent on demand an amount
equal to the
product of (i) the amount so required to be paid by such Lender for
the purchase
of its participations, (ii) the daily average Federal Funds Rate,
during the
period from and including the date of request for payment to the
date on which
such payment is immediately available to the Administrative Agent
and (iii) a
fraction the numerator of which is the number of days that elapsed
during such
period and the denominator of which is 360. A certificate of the
Administrative
Agent submitted to any Lender with respect to any amounts payable
under this
Section 2.14 shall be conclusive in the absence of manifest error.
Amounts
payable by any Lender pursuant to this Section 2.14 shall be paid
to the
Administrative Agent for the account of the relevant Lenders,
provided that, if
the Administrative Agent (in its sole discretion) has elected to
fund on behalf
of such other Lender the amounts owing to such other Lenders, then
the amounts
shall be paid to the Administrative Agent for its own account.
(l) Whenever, at any time after the relevant Lenders have
received
from any other Lenders purchases of participations pursuant to this
Section
2.14, the various Lenders receive any payment on account thereof,
such Lenders
will distribute to the Administrative Agent, for the account of the
various
Lenders participating therein, such Lenders' participating
interests in such
amounts (appropriately adjusted, in the case of interest payments,
to reflect
the period of time during which such participations were
outstanding) in like
funds as received, provided, however, that in the event that such
payment
received by any Lenders is required to be returned, the Lenders who
received
previous distributions in respect of their participating interests
therein will
return to the respective Lenders any portion thereof previously so
distributed
to them in like funds as such payment is required to be returned by
the
respective Lenders.
(m) Each Lender's obligation to purchase participating
interests
pursuant to this Section 2.14 shall be absolute and unconditional
and shall not
be affected by any circumstance including, without limitation, (i)
any setoff,
counterclaim, recoupment, defense or other right which such Lender
may have
against any other Lender, Holdings, either Borrower or any other
Person for any
reason whatsoever, (ii) the occurrence or continuance of an Event
of Default,
(iii) any adverse change in the condition (financial or otherwise)
of Holdings,
either Borrower or any other Person, (iv) any breach of this
Agreement by
Holdings, either Borrower, any Lender or any other Person, or (v)
any other
circumstance, happening or event whatsoever, whether or not similar
to any of
the foregoing.
(n) Notwithstanding anything to the contrary contained
elsewhere in
this Agreement, upon any purchase of participations as required
above, (i) the
relevant Borrower shall pay to each Lender granting any
participations as
required above, for the account of the respective Lender which has
purchased
such participations, any increased costs and indemnities
(including, without
limitation, pursuant to Sections 2.11, 3.12, 3.06 and 5.04) to the
same extent
as if such Lender which has purchased such participations were the
direct Lender
as opposed to a participant therein, which increased costs shall be
calculated
without regard to Section 2.13, Section 13.04(a) or the penultimate
sentence of
Section 13.04(b) and (ii) each Lender which has sold such
participations
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shall be entitled to receive from the relevant Borrower
indemnification from and
against any and all taxes imposed as a result of the sale of the
participations
pursuant to this Section 2.14. Each Borrower acknowledges and
agrees that, upon
the occurrence of a Sharing Event and after giving effect to the
requirements of
this Section 2.14, increased Taxes may be owing by it pursuant to
Section 5.04,
which Taxes shall be paid (to the extent provided in Section 5.04)
by the
respective Borrower or Borrowers, without any claim that the
increased Taxes are
not payable because same resulted from the participations effected
as otherwise
required by this Section 2.14.
2.15 Incremental Term Loan Commitments. (a) So long as no
Default or
Event of Default is then in existence, each Borrower shall have the
right, in
consultation and coordination with the Administrative Agent as to
all of the
matters set forth below in this Section 2.15, but without requiring
the consent
of any of the Lenders, to request at any time and from time to time
after the
Initial Borrowing Date and prior to the date which is 12 months
prior to the
Tranche A Term Loan Maturity Date, that one or more Lenders (and/or
one or more
other Persons which are Eligible Transferees and which will become
Lenders)
provide Incremental Term Loan Commitments to such Borrower and,
subject to the
terms and conditions contained in this Agreement and in the
respective
Incremental Term Loan Commitment Agreement, make Incremental Term
Loans pursuant
thereto; it being understood and agreed, however, that (i) no
Lender shall be
obligated to provide an Incremental Term Loan Commitment as a
result of any such
request by such Borrower, and until such time, if any, as such
Lender has agreed
in its sole discretion to provide an Incremental Term Loan
Commitment and
executed and delivered to the Administrative Agent an Incremental
Term Loan
Commitment Agreement as provided in clause (b) of this Section
2.15, such Lender
shall not be obligated to fund any Incremental Term Loans, (ii) any
Lender
(including any Eligible Transferee who will become a Lender) may so
provide an
Incremental Term Loan Commitment without the consent of any other
Lender, (iii)
each Tranche of Incremental Term Loan Commitments shall be made
available to a
single Incremental Term Loan Borrower and shall be denominated in
U.S. Dollars
or, if extended to the Canadian Borrower, U.S. Dollars or Canadian
Dollars, (iv)
the amount of Incremental Term Loan Commitments made available
pursuant to a
given Incremental Term Loan Commitment Agreement shall be in a
minimum aggregate
amount for all Lenders which provide an Incremental Term Loan
Commitment
thereunder (including Eligible Transferees who will become Lenders)
of at least
U.S.$25,000,000 (or, Cdn.$5,000,000, in the case of Incremental
Term Loan
Commitments denominated in Canadian Dollars), (v) the aggregate
amount of all
Incremental Term Loan Commitments provided pursuant to this Section
2.15 (taking
the U.S. Dollar Equivalent of any Incremental Term Loan Commitments
denominated
in Canadian Dollars) shall not exceed $250,000,000 (provided that
at no time may
the sum of (x) the aggregate amount of all Incremental Term Loan
Commitments
provided pursuant to this Section 2.15 (taking the U.S. Dollar
Equivalent of any
Incremental Term Loan Commitments denominated in Canadian Dollars)
and (y) the
aggregate principal amount of Additional Senior Subordinated Notes
issued
pursuant to Section 10.01(a)(xiii) and outstanding at such time
exceed
$400,000,000), (vi) the proceeds of all Incremental Term Loans
shall be used
only for the purposes permitted by Section 9.11(a), (vii) each
Incremental Term
Loan Commitment Agreement shall specifically designate, with the
approval of the
Administrative Agent, the Tranche of the Incremental Term Loan
Commitments being
provided thereunder (which Tranche shall be a new Tranche (i.e.,
not the same as
any existing Tranche of Incremental Term Loans, Incremental Term
Loan
Commitments or other Term Loans), unless the requirements of
Section 2.15(c) are
satisfied), (viii) if to be incurred as a new Tranche of
Incremental Term Loans,
such Incremental Term Loans shall have the same terms as each other
Tranche of
Term Loans as in effect immediately prior to the effectiveness of
the applicable
Incremental Term Loan Agreement, except as to currency (which is
subject to the
requirements of preceding clause (iii)), purpose (which is subject
to the
requirements of preceding clause (vi)) and mandatory repayment
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application provisions (which are governed by Section 5.02);
provided, however,
that (I) the maturity and amortization of such Tranche of
Incremental Term Loans
may differ, so long as such Tranche of Incremental Term Loans shall
have (a) an
Incremental Term Loan Maturity Date of no earlier than the Tranche
C Term Loan
Maturity Date (or, in the case of Incremental Term Loans
denominated in Canadian
Dollars, the Tranche A Term Loan Maturity Date) and (b) a Weighted
Average Life
to Maturity of no less than the Weighted Average Life to Maturity
as then in
effect for the Tranche C Term Loans (or, in the case of Incremental
Term Loans
denominated in Canadian Dollars, the Tranche A Term Loans) and (II)
the
"interest rate" for such Tranche of Incremental Term Loans as of
the Incremental
Term Loan Borrowing Date therefor (which, for such purposes only,
shall be
determined by the Administrative Agent and deemed to include all
upfront or
similar fees or original issue discount (amortized over the life of
such
Incremental Term Loans) payable to all Lenders providing such
Incremental Term
Loans, but exclusive of any arrangement, structuring or other fees
payable in
connection therewith that are not shared with all Lenders providing
such Tranche
of Incremental Term Loans) may exceed the "interest rate" then
applicable to (a)
the Tranche A Term Loans and each other Tranche of Canadian Dollar
Denominated
Incremental Term Loans, in the case of a new Tranche of Canadian
Dollar
Denominated Incremental Term Loans to be incurred by the Canadian
Borrower, or
(b) the Tranche B Term Loans, the Tranche C Term Loans and each
other Tranche of
Incremental Term Loans (other than Canadian Dollar Denominated
Incremental Term
Loans), in the case of a new Tranche of Incremental Term Loans
denominated in
U.S. Dollars (as such "interest rate" shall have been determined by
the
Administrative Agent on the same basis provided in the immediately
preceding
parenthetical) if the Applicable Margin for (1) the Tranche A Term
Loans and
each other Tranche of Canadian Dollar Denominated Incremental Term
Loans, in the
case of a new Tranche of Canadian Dollar Denominated Incremental
Term Loans to
be incurred by the Canadian Borrower, or (b) the Tranche B Term
Loans, the
Tranche C Term Loans and each other Tranche of Incremental Term
Loans (other
than Canadian Dollar Denominated Incremental Term Loans), in the
case of a new
Tranche of Incremental Term Loans denominated in U.S. Dollars, is
(or are)
increased to the Applicable Increased Term Loan Rate for such
Tranche of
Incremental Term Loans, (ix) all Incremental Term Loans (and all
interest, fees
and other amounts payable thereon) incurred by a given Incremental
Term Loan
Borrower shall be Obligations of such Incremental Term Loan
Borrower under this
Agreement and the other applicable Credit Documents and shall be
secured by the
relevant Security Agreements, and guaranteed under each relevant
Guaranty, on a
pari passu basis with all other Loans secured by each such Security
Agreement
and guaranteed under each such Guaranty, (x) each Incremental TL
Lender making
Canadian Dollar Denominated Incremental Term Loans to the Canadian
Borrower
shall have delivered to the Canadian Borrower and the
Administrative Agent such
certificates, forms, documents or other evidence as may be
applicable and
determined by the Canadian Borrower, acting reasonably, to be
reasonably
satisfactory to establish that such Lender is a Canadian Resident
on the date of
the incurrence of such Canadian Dollar Denominated Incremental Term
Loans (it
being acknowledged that a representation by such Person that it is
a Canadian
Resident shall be deemed to be reasonably satisfactory evidence
thereof if such
representation is accompanied by an explanation of the basis for
such status)
and (xi) each Lender (including any Eligible Transferee who will
become a
Lender) agreeing to provide an Incremental Term Loan Commitment
pursuant to an
Incremental Term Loan Commitment Agreement shall, subject to the
satisfaction of
the relevant conditions set forth in this Agreement, make
Incremental Term Loans
under the Tranche specified in such Incremental Term Loan
Commitment Agreement
as provided in Section 2.01(d) and such Loans shall thereafter be
deemed to be
Incremental Term Loans under such Tranche for all purposes of this
Agreement and
the other applicable Credit Documents.
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(b)
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