<PAGE>
EXHBIT 10.4
EXECUTION COPY
================================================================================
$160,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
CAPITAL ENVIRONMENTAL RESOURCE INC./RESSOURCES
ENVIRONNEMENTALES CAPITAL INC.,
WASTE SERVICES, INC.,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
LEHMAN
BROTHERS INC.,
AS ARRANGER,
CIBC WORLD MARKETS CORP.,
AS SYNDICATION AGENT,
BANK OF AMERICA, N.A.
AS
DOCUMENTATION AGENT,
CANADIAN IMPERIAL BANK OF COMMERCE, AS CANADIAN
AGENT
AND
LEHMAN COMMERCIAL PAPER INC.,
AS ADMINISTRATIVE AGENT
DATED AS OF APRIL 30, 2004
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S>
<C>
SECTION 1.
DEFINITIONS......................................................................................
1
1.1 Defined
Terms.................................................................................
1
1.2 Other
Definitional
Provisions.................................................................
33
1.3
Interrelationship with the Original Credit
Agreement..........................................
34
1.4
Confirmation of Existing
Obligations..........................................................
35
SECTION 2. AMOUNT AND TERMS OF
COMMITMENTS..................................................................
35
2.1 Tranche B
Term Loan
Commitments...............................................................
35
2.2 Procedure
for Tranche B Term Loan
Assignment..................................................
35
2.3 Repayment
of Term
Loans.......................................................................
35
2.4 Revolving
Credit
Commitments..................................................................
36
2.5 Procedure
for Revolving Credit
Borrowing......................................................
37
2.6 Swing Line
Commitments........................................................................
41
2.7 Procedure
for US Swing Line Borrowing and Canadian Swing Line Borrowing;
Refunding of
US Swing Line Loans and Canadian Swing Line
Loans.............................................
41
2.8 Repayment
of Loans; Evidence of
Debt..........................................................
45
2.9 Commitment Fees,
etc..........................................................................
46
2.10
Termination or Reduction of Revolving Credit
Commitments......................................
46
2.11
Optional
Prepayments..........................................................................
46
2.12
Mandatory Prepayments and Commitment
Reductions...............................................
47
2.13
Conversion and Continuation
Options...........................................................
48
2.14
Minimum Amounts and Maximum Number of Eurodollar
Tranches.....................................
49
2.15
Interest Rates and Payment
Dates..............................................................
49
2.16
Computation of Interest and
Fees..............................................................
51
2.17
Inability to Determine Interest
Rate..........................................................
52
2.18
Pro
Rata Treatment and
Payments...............................................................
53
2.19
Requirements of
Law...........................................................................
55
2.20
Taxes.........................................................................................
56
2.21
Indemnity.....................................................................................
58
2.22
Illegality....................................................................................
59
2.23
Change of Lending
Office......................................................................
59
SECTION 3. LETTERS OF
CREDIT................................................................................
59
3.1 L/C
Commitment................................................................................
59
3.2 Procedure
for Issuance of Letter of
Credit....................................................
60
3.3 Fees and
Other
Charges........................................................................
61
3.4 L/C
Participations............................................................................
61
3.5
Reimbursement Obligation of the Borrower and CERI.
(a).......................................
64
3.6
Obligations
Absolute..........................................................................
65
</TABLE>
i
<PAGE>
<TABLE>
<S>
<C>
3.7 Letter of
Credit
Payments.....................................................................
65
3.8
Applications..................................................................................
66
SECTION 4. REPRESENTATIONS AND
WARRANTIES...................................................................
66
4.1 Financial
Condition...........................................................................
66
4.2 No
Change.....................................................................................
67
4.3 Corporate
Existence; Compliance with
Law......................................................
67
4.4 Corporate Power;
Authorization; Enforceable
Obligations.......................................
67
4.5 No Legal
Bar..................................................................................
68
4.6 No
Material
Litigation........................................................................
68
4.7 No
Default....................................................................................
68
4.8 Ownership
of Property;
Liens..................................................................
68
4.9
Intellectual
Property.........................................................................
69
4.10
Taxes.........................................................................................
69
4.11
Federal
Regulations...........................................................................
69
4.12
Labor
Matters.................................................................................
69
4.13
Pensions and Benefit
Plans....................................................................
69
4.14
Investment Company Act; Other
Regulations.....................................................
70
4.15
Subsidiaries..................................................................................
71
4.16
Use
of
Proceeds...............................................................................
71
4.17
Environmental
Matters.........................................................................
71
4.18
Accuracy of Information,
etc..................................................................
72
4.19
Security
Documents............................................................................
72
4.20
Solvency......................................................................................
73
4.21 Senior
Indebtedness...........................................................................
73
4.22
Regulation
H..................................................................................
73
4.23
Insurance.....................................................................................
74
4.24
Real
Estate...................................................................................
74
4.25
Inactive
Subsidiaries.........................................................................
74
4.26
Kelso Preferred
Stock.........................................................................
74
SECTION 5. CONDITIONS
PRECEDENT.............................................................................
74
5.1 Conditions
to Effectiveness and Extension of
Credit...........................................
74
5.2 Conditions
to Each Extension of
Credit........................................................
80
SECTION 6. AFFIRMATIVE
COVENANTS............................................................................
81
6.1 Financial
Statements..........................................................................
81
6.2
Certificates; Other
Information...............................................................
82
6.3 Payment of
Obligations........................................................................
84
6.4 Conduct of
Business and Maintenance of Existence,
etc.........................................
84
6.5
Maintenance of Property;
Insurance............................................................
84
6.6 Inspection
of Property; Books and Records;
Discussions........................................
84
6.7
Notices.......................................................................................
85
6.8
Environmental
Laws............................................................................
85
</TABLE>
ii
<PAGE>
<TABLE>
<S>
<C>
6.9 Interest
Rate
Protection......................................................................
86
6.10
Additional Collateral,
etc....................................................................
86
6.11
Use
of
Proceeds...............................................................................
89
6.12
Pension and Benefits
Plans....................................................................
89
6.13
Further Assurances.
(a)......................................................................
90
6.14
Post
Closing
Obligations......................................................................
91
SECTION 7. NEGATIVE
COVENANTS...............................................................................
91
7.1 Financial
Condition
Covenants.................................................................
91
7.2 Limitation
on
Indebtedness....................................................................
93
7.3 Limitation
on
Liens...........................................................................
95
7.4 Limitation
on Fundamental
Changes.............................................................
96
7.5 Limitation
on Disposition of
Property.........................................................
97
7.6 Limitation
on Restricted
Payments.............................................................
98
7.7 Limitation
on Capital
Expenditures............................................................
99
7.8 Limitation
on
Investments.....................................................................
99
7.9 Limitation
on Optional Payments and Modifications of Debt Instruments and
Other
Agreements....................................................................................
101
7.10
Limitation on Transactions with
Affiliates....................................................
101
7.11
Limitation on Sales and
Leasebacks............................................................
101
7.12
Limitation on Changes in Fiscal
Periods.......................................................
101
7.13
Limitation on Negative Pledge
Clauses.........................................................
101
7.14
Limitation on Restrictions on Subsidiary
Distributions........................................
102
7.15
Limitation on Lines of
Business...............................................................
102
7.16
Limitation on Amendments to Acquisition
Documentation.........................................
102
7.17
Limitation on Hedge
Agreements................................................................
103
7.18
Limitation on Performance
Bonds...............................................................
103
SECTION 8. EVENTS OF
DEFAULT................................................................................
103
SECTION 9. THE AGENTS; THE
ARRANGER.........................................................................
107
9.1
Appointment...................................................................................
107
9.2 Delegation
of
Duties..........................................................................
108
9.3
Exculpatory
Provisions........................................................................
108
9.4 Reliance
by
Agents............................................................................
108
9.5 Notice of
Default.............................................................................
109
9.6
Non-Reliance on the Arranger, the Agents and Other
Lenders....................................
109
9.7
Indemnification...............................................................................
110
9.8 Arranger
and Agents in their Individual
Capacities............................................
110
9.9 Successor
Agents..............................................................................
110
9.10
Authorization to Release Liens and
Guarantees.................................................
111
9.11
The
Arranger; the Syndication Agent; the Documentation
Agent..................................
111
9.12
Withholding
Tax...............................................................................
111
SECTION 10.
MISCELLANEOUS...................................................................................
112
</TABLE>
iii
<PAGE>
<TABLE>
<S>
<C>
10.1
Amendments and
Waivers........................................................................
112
10.2
Notices.......................................................................................
114
10.3
No
Waiver; Cumulative
Remedies................................................................
116
10.4
Survival of Representations and
Warranties....................................................
116
10.5
Payment of
Expenses...........................................................................
116
10.6
Successors and Assigns; Participations and
Assignments........................................
118
10.7
Adjustments;
Set-off..........................................................................
121
10.8
Counterparts..................................................................................
122
10.9
Severability..................................................................................
122
10.10
Integration...................................................................................
122
10.11
GOVERNING
LAW.................................................................................
122
10.12
Submission
To Jurisdiction;
Waivers...........................................................
123
10.13
Acknowledgments...............................................................................
123
10.14
Confidentiality...............................................................................
123
10.15
Release of
Collateral and Guarantee
Obligations...............................................
124
10.16
Accounting
Changes............................................................................
125
10.17
Delivery
of Lender
Addenda....................................................................
126
10.18
WAIVERS OF
JURY
TRIAL.........................................................................
126
10.19
Subordination of Intercompany
Indebtedness....................................................
126
10.20
Judgment
Currency.............................................................................
126
SECTION 11.
GUARANTEE.......................................................................................
127
11.1
Guarantee.....................................................................................
127
11.2
Rights of Reimbursement, Contribution and
Subrogation.........................................
128
11.3
Amendments, etc. with respect to the Canadian
Obligations.....................................
129
11.4
Guarantee Absolute and
Unconditional..........................................................
130
11.5
Reinstatement.................................................................................
131
11.6
Payments......................................................................................
131
11.7
Waivers by the
Borrower.......................................................................
131
</TABLE>
iv
<PAGE>
ANNEX:
A
Pricing Grid
SCHEDULES:
1.1
Historical Consolidated EBITDA
4.4
Consents, Authorizations, Filings and Notices
4.6
Material Litigation
4.10
Taxes
4.15(a) Subsidiaries
4.15(b) Agreements Related to
Capital Stock
4.17
Environmental Matters
4.19
Filing Jurisdictions under Personal Property Security
Legislation
4.24
Owned and Leased Property; Mortgaged Properties
5.1(a) Post Closing
Mortgage Delivery Requirements
5.1(k) Environmental
Assessments
7.2(d) Existing
Indebtedness
7.3(f) Existing
Liens
7.10
Transactions with Affiliates
EXHIBITS:
A-1
Amended and Restated Guarantee and Collateral Agreement
A-2
Canadian Guarantee and Collateral Agreement
B
Form of Compliance Certificate
C
Form of Closing Certificate
D-1
Form of U.S. Mortgage
D-2
Form of Canadian Mortgage
E
Form of Assignment and Acceptance
F-1
Form of Legal Opinion of Shearman & Sterling LLP
F-2
Form of Legal Opinion of Blake, Cassels & Graydon LLP
G-1
Form of Amended and Restated Term Note
G-2
Form of Amended and Restated US Revolving Credit Note
G-3
Form of Canadian Revolving Credit Note
G-4
Form of Amended and Restated US Swing Line Note
G-5
Form of Canadian Swing Line Note
H
Form of Discount Note
I
Form of Exemption Certificate
J
Form of Lender Addendum
K
Form of Borrowing Notice
<PAGE>
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April
30,
2004, among CAPITAL ENVIRONMENTAL RESOURCE
INC./RESSOURCES ENVIRONNEMENTALES
CAPITAL INC. an Ontario corporation
("CERI"), WASTE SERVICES, INC., a Delaware
corporation (the "Borrower"), the several
banks and other financial institutions
or entities from time to time parties to
this Agreement (the "Lenders"), LEHMAN
BROTHERS INC., as exclusive advisor, sole
lead arranger and sole book runner (in
such capacity, the "Arranger"), CIBC WORLD
MARKETS CORP, as syndication agent
(in such capacity, the "Syndication
Agent"), BANK OF AMERICA, N.A., as
documentation agent (in such capacity, the
"Documentation Agent"), LEHMAN
COMMERCIAL PAPER INC., as administrative
agent (in such capacity, the
"Administrative Agent"), and CANADIAN
IMPERIAL BANK OF COMMERCE, as Canadian
agent (in such capacity, the "Canadian
Agent") AMENDS AND RESTATES IN FULL the
Credit Agreement dated as of December 31,
2003, by and among CERI, the Borrower,
the Lenders party thereto (the "Original
Lenders"), the Arranger and the
Administrative Agent (the "Original Credit
Agreement"); this amendment and
restatement of the Original Credit
Agreement, as amended, supplemented, restated
or otherwise modified from time to time, is
hereinafter referred to as this
"Agreement".
WITNESSETH:
WHEREAS, the Borrower has requested that the Original Credit
Agreement be amended and restated in full
as set forth herein;
WHEREAS, it is the intent of CERI, the Borrower, the Lenders,
the
Administrative Agent, the Syndication Agent
and the Arranger that this Agreement
amend and restate in its entirety the
Original Credit Agreement and that, from
and after the Restatement Effective Date,
the Original Credit Agreement shall
evidence the terms and conditions under
which the Borrower heretofore has
incurred obligations and liabilities to the
Original Lenders and the
Administrative Agent (as evidenced by the
Original Credit Agreement and the
Administrative Agent's books and records);
and
WHEREAS, the Lenders (including the Original Lenders that are
party
hereto) are willing to amend and restate
the Original Credit Agreement and to
extend (or to continue to extend credit in
the case of the Original Lenders that
are party hereto) credit to the Borrower
and CERI upon and subject to the terms
and conditions hereinafter set forth;
NOW, THEREFOR, in consideration of the premises and the
agreements
hereinafter set forth, the parties hereto
hereby agree to amend and restate the
Original Credit Agreement, and the Original
Credit Agreement is hereby amended
and restated as follows:
SECTION 1. DEFINITIONS
1.1 Defined
Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective
meanings set forth in this Section
1.1.
"Acceptance Fee": a fee payable by CERI with respect to the
acceptance of a Bankers' Acceptance by a
Lender under this Agreement, as set
forth in Section 2.5(d).
"Acquisition": as defined in Section 5.1.
<PAGE>
"Acquisition Agreements": any and all asset purchase or stock
purchase agreements entered into by any
Group Member in connection with any
Permitted Acquisition, the acquisition of
the Allied Business or the FRS
Acquisition, as the same may be amended,
supplemented, replaced or otherwise
modified from time to time in accordance
with this Agreement, including, without
limitation, the Allied Acquisition
Agreement and the FRS Acquisition Agreement.
"Acquisition Documentation": collectively, the Acquisition
Agreements and all schedules, exhibits,
annexes and amendments thereto and all
side letters and agreements affecting the
terms thereof or entered into in
connection therewith, in each case, as
amended, supplemented or otherwise
modified from time to time in accordance
with this Agreement.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
"Advanced Asset Swap": the exchange of the Nassau landfill,
located
in Nassau County, Florida, which was
acquired as part of the Allied Business,
for (a) a collection operation in the
greater Orlando, Florida, metropolitan
area and (b) $10,000,000 in cash, subject
to working capital adjustments.
"Affiliate": as to any Person, any other Person that, directly
or
indirectly, is in control of, is controlled
by, or is under common control with,
such Person. For purposes of this
definition, "control" of a Person means the
power, directly or indirectly, either to
(a) vote 10% or more of the securities
having ordinary voting power for the
election of directors (or persons
performing similar functions) of such
Person or (b) direct or cause the
direction of the management and policies of
such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent,
the
Documentation Agent, the Canadian Agent and
the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an
amount equal to the sum of (i) the
aggregate then unpaid principal amount of
such Lender's Term Loans and (ii) the
amount of such Lender's Revolving Credit
Commitment then in effect or, if the
Revolving Credit Commitments have been
terminated, the amount of such Lender's
Revolving Extensions of Credit then
outstanding.
"Aggregate Exposure Percentage": with respect to any Lender at
any
time, the ratio (expressed as a percentage)
of such Lender's Aggregate Exposure
at such time to the sum of the Aggregate
Exposures of all Lenders at such time.
"Agreement": this Amended and Restated Credit Agreement, as
amended,
supplemented, replaced or otherwise
modified from time to time.
"Allied Acquisition Agreement": the Asset Purchase Agreement,
dated
as of November 12, 2003, by and among the
Borrower, certain of its Subsidiaries
named therein, Allied Waste Industries,
Inc. and certain of its Subsidiaries
named therein.
2
<PAGE>
"Allied Business": the
collection and hauling operations, transfer
stations, landfills and recycling
facilities which were purchased by the
Borrower and its Subsidiaries from Allied
Waste Industries, Inc. and certain
Subsidiaries thereof pursuant to the Allied
Acquisition Agreement, it being
noted that the transfer of certain assets
related to the Allied Business located
in Jacksonville, Florida and the Allied
Business located in Camden County,
Florida has not been consummated as of the
date of this Agreement.
"Applicable Margin": for each Type of Loan under each Facility,
the
rate per annum set forth opposite such
Facility under the relevant column
heading below:
<TABLE>
<CAPTION>
Canadian Prime Rate Base Rate
Acceptance Eurodollar
Rate Loans
Loans
Fee
Loans
------------------- ---------
---------- ----------
<S>
<C>
<C>
<C>
<C>
US Revolving Credit Facility
N.A.
2.25%
N.A.
3.25%
(including US Swing Line Loans)
Canadian Revolving Credit Facility
2.25%
2.25%
3.25%
3.25%
(including Canadian Swing Line Loans)
Tranche B Term Loan Facilities
N.A.
2.25%
N.A.
3.25%
</TABLE>
provided, that on and after the first
Adjustment Date occurring after the
completion of two full fiscal quarters of
the Borrower after the Restatement
Effective Date, the Applicable Margin with
respect to US Revolving Credit Loans,
Canadian Revolving Credit Loans, US Swing
Line Loans and Canadian Swing Line
Loans will be determined pursuant to the
Pricing Grid.
"Application": an application, in such form as the relevant
Issuing
Lender may specify from time to time,
requesting such Issuing Lender to issue a
Letter of Credit.
"Arizona Sale and Leaseback": the sale and leaseback of the
transfer
station located at Mountain Road/Pecos
Road, Maricopa County, Arizona, for an
aggregate amount not to exceed $500,000 and
on other terms and conditions
reasonably satisfactory to the
Administrative Agent.
"Arranger": as defined in the preamble hereto.
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding any
such Disposition permitted by clause
(a), (b), (c), (d) or (f) of Section 7.5)
which yields gross proceeds to any
Group Member (valued at the initial
principal amount thereof in the case of
non-cash proceeds consisting of notes or
other debt securities and valued at
fair market value in the case of other
non-cash proceeds) in excess of $500,000.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": as defined in Section 10.6(c).
"Assignor": as defined in Section 10.6(c).
"Available Canadian Revolving Credit Commitment": with respect
to
any Canadian Revolving Credit Lender at any
time, an amount equal to the excess,
if any, of (a) such
3
<PAGE>
Lender's Canadian Revolving Credit
Commitment then in effect over (b) such
Lender's Canadian Revolving Extensions of
Credit then outstanding, provided
that, in calculating any Lender's Canadian
Revolving Extensions of Credit for
the purpose of determining such Lender's
(other than the Canadian Swing Line
Lender's) Available Canadian Revolving
Credit Commitment for purposes of Section
2.9(a), the aggregate principal amount of
Canadian Swing Line Loans then
outstanding shall be deemed to be zero.
"Available US Revolving Credit Commitment": with respect to any
US
Revolving Credit Lender at any time, an
amount equal to the excess, if any, of
(a) such Lender's US Revolving Credit
Commitment then in effect over (b) such
Lender's US Revolving Extensions of Credit
then outstanding; provided, that in
calculating any Lender's US Revolving
Extensions of Credit for the purpose of
determining such Lender's (other than the
US Swing Line Lender's) Available US
Revolving Credit Commitment for purposes of
Section 2.9(a), the aggregate
principal amount of US Swing Line Loans
then outstanding shall be deemed to be
zero.
"BA Equivalent Loan": a Canadian Revolving Credit Loan made by a
Non
BA Lender evidenced by a Discount Note.
"Bankers' Acceptance" and "B/A" each means a bill of exchange,
including a depository bill issued in
accordance with the Depository Bills and
Notes Act (Canada), denominated in Canadian
Dollars, drawn by CERI and accepted
by a Lender and includes a Discount
Note.
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal
to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal
Funds Effective Rate in effect on such
day plus 1/2 of 1%. For purposes hereof:
"Prime Rate" shall mean the prime
lending rate as set forth on the British
Banking Association Telerate Page 5 (or
such other comparable page as may, in the
opinion of the Administrative Agent,
replace such page for the purpose of
displaying such rate), as in effect from
time to time. The Prime Rate is a reference
rate and does not necessarily
represent the lowest or best rate actually
available. Any change in the Base
Rate due to a change in the Prime Rate or
the Federal Funds Effective Rate shall
be effective as of the opening of business
on the effective day of such change
in the Prime Rate, or the Federal Funds
Effective Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of
interest
is based upon the Base Rate or, with
respect to Canadian Revolving Credit Loans,
the US Base Rate in Canada.
"Benefited Lender": as defined in Section 10.7.
"Board": the Board of Governors of the Federal Reserve System of
the
United States of America (or any
successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower or
CERI, as applicable, as a date on which the
Borrower or CERI, as applicable,
requests the relevant Lenders to make Loans
hereunder.
4
<PAGE>
"Borrowing Notice": with respect to any request for borrowing
of
Loans hereunder, a notice from the Borrower
or CERI, substantially in the form
of, and containing the information
prescribed by, Exhibit J, delivered to the
Administrative Agent or the Canadian Agent,
as applicable.
"Business Day": (a) for all purposes other than as covered by
clause
(b) below, a day other than a Saturday,
Sunday or other day on which commercial
banks in New York City or (solely with
respect to all notices and determinations
in connection with, and payments of
principal and interest on, Canadian
Revolving Extensions of Credit) Toronto,
Ontario, are authorized or required by
law to close and (b) 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 (a) and which is also a day
for trading by and between banks in Dollar
deposits in the interbank Eurodollar
market.
"Canadian Agent": as defined in the preamble hereto.
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by any Group
Member that are not Canadian Pension
Plans including, without limitation, all
profit sharing, savings, supplemental
retirement, retiring allowance, severance,
pension, deferred compensation,
welfare, bonus, incentive compensation,
phantom stock, supplementary
unemployment benefit plans or arrangements
and all material life, health, dental
and disability plans and arrangements in
which the employees or former employees
of any Group Member employed in Canada
participate or are eligible to
participate, but excluding all stock option
or stock purchase plans.
"Canadian Dollars and Cdn. $": lawful currency of Canada.
"Canadian Funding Office": the office specified from time to time
by
the Canadian Agent as its funding office by
notice to CERI, the Administrative
Agent and the Lenders.
"Canadian Guarantee and Collateral Agreement": the Canadian
Guarantee and Collateral Agreement dated as
of December 31, 2003, executed by
CERI and each Canadian Subsidiary
Guarantor, as amended, supplemented, replaced
or otherwise modified from time to time,
attached hereto as Exhibit A-2.
"Canadian Issuing Lender": any Canadian Revolving Credit Lender
from
time to time designated by the Borrower or
CERI as a Canadian Issuing Lender
with the consent of such Canadian Revolving
Credit Lender and the Canadian
Agent.
"Canadian L/C Commitment": $15,000,000.
"Canadian L/C Obligations": at any time, an amount equal to the
sum
of (a) the then aggregate undrawn and
unexpired amount of the then outstanding
Canadian Letters of Credit and (b) the
aggregate amount of drawings under the
Canadian Letters of Credit that have not
then been reimbursed pursuant to
Section 3.5.
5
<PAGE>
"Canadian L/C Participants": with respect to any Canadian Letter
of
Credit, the collective reference to the
Canadian Revolving Credit Lenders other
than the Canadian Issuing Lender that
issued such Canadian Letter of Credit.
"Canadian Letters of Credit": as defined in Section 3.1(b).
"Canadian Obligations": the unpaid principal of and interest on
(including, without limitation, interest
accruing after the maturity of the
Canadian Revolving Credit Loans and
Canadian Revolving Credit Reimbursement
Obligations and interest accruing after the
filing of any petition in
bankruptcy, or the commencement of any
insolvency, reorganization or like
proceeding, relating to CERI, whether or
not a claim for post-filing or
post-petition interest is allowed in such
proceeding) the Canadian Revolving
Credit Loans, the Canadian Reimbursement
Obligations and all other obligations
and liabilities of CERI to the
Administrative Agent, the Canadian Agent or to
any Canadian Revolving Credit Lender,
whether direct or indirect, absolute or
contingent, due or to become due, or now
existing or hereafter incurred, which
may arise under, out of, or in connection
with this Agreement, any other Loan
Document, the Canadian Letters of Credit,
or any other document made, delivered
or given in connection herewith or
therewith by CERI, whether on account of
principal, interest, reimbursement
obligations, fees, costs, expenses or
otherwise, in all cases in respect of the
Canadian Revolving Credit Facility
only.
"Canadian Payment Office": the office specified from time to time
by
the Canadian Agent as its payment office by
notice to CERI and the Canadian
Revolving Credit Lenders.
"Canadian Pension Plans": any plan which is considered to be a
pension plan for the purposes of any
applicable pension benefits standards
statute and/or regulation in Canada
established, maintained or contributed to by
any Group Member, their respective
employees or former employees.
"Canadian Prime Rate": on any day the greater of:
(a) the annual
rate of interest announced from time to time by the
Canadian Agent as being its reference rate
then in effect for determining
interest rates on Canadian Dollar
denominated commercial loans made by it in
Canada; and
(b) the CDOR Rate in effect from
time to time plus 75 basis points
per annum.
Any change
in the Canadian Prime Rate shall be effective as of the opening
of business on the date the change becomes
effective generally.
"Canadian Prime Rate Loans": Canadian Revolving Credit Loans
which
are denominated in Canadian Dollars and in
respect of which CERI is obligated to
pay interest in accordance with Section
2.15 at the Canadian Prime Rate.
"Canadian Refunded Swing Line Loans": as defined in Section
2.7(g).
"Canadian Refunding Date": as defined in Section 2.7(h).
6
<PAGE>
"Canadian Reimbursement Obligations": the Reimbursement
Obligations
owing by CERI.
"Canadian
Revolving Credit Commitment": as to any Canadian Revolving
Credit Lender, the obligation of such
Lender, if any, to make Canadian Revolving
Credit Loans and participate in Canadian
Swing Line Loans and Canadian Letters
of Credit, in an aggregate principal and/or
face amount not to exceed the amount
set forth under the heading "Canadian
Revolving Credit Commitment" opposite such
Lender's name on Schedule 1 to the Lender
Addendum delivered by such Lender, or,
as the case may be, in the Assignment and
Acceptance pursuant to which such
Lender became a party hereto, as the same
may be changed from time to time
pursuant to the terms hereof. The original
aggregate amount of Canadian
Revolving Credit Commitments is
$15,000,000.
"Canadian Revolving Credit Commitment Period": the period from
and
including the Restatement Effective Date to
the Canadian Revolving Credit
Termination Date.
"Canadian Revolving Credit Facility": as defined in the
definition
of "Facility" in this Section 1.1.
"Canadian Revolving Credit Lender": each Lender that has a
Canadian
Revolving Credit Commitment or that is the
holder of Canadian Revolving Credit
Loans, including the Canadian Issuing
Lender and the Canadian Agent.
"Canadian Revolving Credit Loans": as defined in Section 2.4.
"Canadian Revolving Credit Note": as defined in Section 2.8.
"Canadian Revolving Credit Percentage": as to any Canadian
Revolving
Credit Lender at any time, the percentage
which such Lender's Canadian Revolving
Credit Commitment then constitutes of the
aggregate Revolving Credit Commitments
(or, at any time after the Canadian
Revolving Credit Commitments shall have
expired or terminated, the percentage which
the aggregate amount of such
Lender's Canadian Revolving Extensions of
Credit then outstanding constitutes of
the amount of the aggregate Canadian
Revolving Extensions of Credit then
outstanding).
"Canadian Revolving Credit Termination Date": the fifth
anniversary
of the Restatement Effective Date.
"Canadian Revolving Extensions of Credit": as to any Canadian
Revolving Credit Lender at any time, an
amount equal to the sum of (a) the
aggregate principal amount of all Canadian
Revolving Credit Loans made by such
Lender then outstanding, (b) such Lender's
Canadian Revolving Credit Percentage
of the Canadian L/C Obligations then
outstanding and (c) such Lender's Canadian
Revolving Credit Percentage of the Canadian
Swing Line Loans then outstanding.
"Canadian
Secured Parties": the Administrative Agent, the Canadian
Agent and the Canadian Revolving Credit
Lenders.
7
<PAGE>
"Canadian Subsidiaries": Ram-Pak Compaction Systems Ltd, a
corporation organized under the laws of
Canada, 6045341 Canada Inc., a
corporation organized under the laws of
Canada, Gap Disposal (2001), Ltd., a
corporation organized under the laws of
Saskatchewan and each other direct
Subsidiary of CERI and, after the
Migration, the Borrower, to the extent such
Subsidiary is organized under the laws of
Canada or any province thereof.
"Canadian Subsidiary Guarantor": each Canadian Subsidiary until
the
Migration.
"Canadian Swing Line Commitment": the obligation of the
Canadian
Swing Line Lender to make Canadian Swing
Line Loans pursuant to Section 2.6 in
an aggregate principal amount at any one
time outstanding not to exceed
$3,000,000.
"Canadian Swing Line Lender": each Lender that has a Canadian
Swing
Line Commitment or that is a holder of
Canadian Swing Line Loans.
"Canadian Swing Line Loans": as defined in Section 2.6.
"Canadian Swing Line Note": as defined in Section 2.8(e).
"Canadian Swing Line Participation Amount": as defined in
Section
2.7(h).
"Capital Expenditures": for any period, with respect to any
Person,
the aggregate of all expenditures by such
Person for the acquisition or leasing
(pursuant to a capital lease) of fixed or
capital assets or additions to
equipment (including replacements,
capitalized repairs and improvements during
such period) to the extent required to be
capitalized under GAAP on a balance
sheet of such Person.
"Capital Holdings Company": Capital Environmental Holdings
Company,
a Nova Scotia unlimited liability
company.
"Capital Lease Obligations": with respect to any Person, the
obligations of such Person to pay rent or
other amounts under any lease of (or
other arrangement conveying the right to
use) real or personal property, or a
combination thereof, which obligations are
required to be classified and
accounted for as capital leases on a
balance sheet of such Person under GAAP;
and, for the purposes of this Agreement,
the amount of such obligations at any
time shall be the capitalized amount
thereof at such time determined in
accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or
other equivalents (however designated) of
capital stock of a corporation, any
and all equivalent ownership interests in a
Person (other than a corporation)
and any and all warrants, rights or options
to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by,
or
unconditionally guaranteed by, the United
States of America or issued by any
agency thereof and backed by the full faith
and credit of the United States of
America or Canada or any agency, state,
province or territory thereof, in each
case maturing within one year from the date
of acquisition; (b) certificates of
deposit, time deposits or overnight bank
deposits having maturities of six
months or less from the date of acquisition
issued by any Lender or by any
commercial bank organized under the laws of
the United States of America or any
state thereof or is a bank
8
<PAGE>
listed in Schedule I of the Bank Act
(Canada) and having combined capital and
surplus of not less than $500,000,000; (c)
commercial paper of an issuer rated
at least A-2 by Standard & Poor's
Ratings Services ("S&P") or P-2 by Moody's
Investors Service, Inc. ("Moody's") or R-1
by Dominion Bond Rating Service
Limited ("DBRS") or carrying an equivalent
rating by a nationally recognized
rating agency, if all of the three named
rating agencies cease publishing
ratings of commercial paper issuers
generally, and maturing within six months
from the date of acquisition; (d)
repurchase obligations of any Lender or of any
commercial bank satisfying the requirements
of clause (b) of this definition,
having a term of not more than 30 days with
respect to securities issued or
fully guaranteed or insured by the United
States of America or the Government of
Canada; (e) securities with maturities of
one year or less from the date of
acquisition issued or fully guaranteed by
any state, province, commonwealth or
territory of the United States of America
or Canada, by any political
subdivision or taxing authority of any such
state, province, commonwealth or
territory or by any foreign government, the
securities of which state, province,
commonwealth, territory, political
subdivision, taxing authority or foreign
government (as the case may be) are rated
at least A by S&P, A by Moody's, or A
by DBRS; (f) securities with maturities of
six months or less from the date of
acquisition backed by standby letters of
credit issued by any Lender or any
commercial bank satisfying the requirements
of clause (b) of this definition;
and (g) shares of money market mutual or
similar funds which invest exclusively
in assets satisfying the requirements of
clauses (a) through (f) of this
definition.
"CDOR Rate": on any day, the annual rate of interest which is
the
arithmetic average of the "BA 1 month"
rates applicable to Canadian Dollar
Bankers' Acceptances issued by Schedule I
Lenders identified as such on the
Reuters Screen CDOR Page at approximately
10:00 a.m. (Toronto time) on such day
(as adjusted by the Canadian Agent after
10:00 a.m. to reflect any error in any
posted rate or in the posted average annual
rate). If the rate does not appear
on the Reuters Screen CDOR Page as
contemplated above, then the CDOR Rate on any
day shall be calculated as the arithmetic
average of the discount rates
applicable to one month Canadian Dollar
Bankers' Acceptances of, and as quoted
by, any two of the Schedule I Lenders,
chosen by the Canadian Agent in its
discretion, as of 10:00 a.m. on the day, or
if the day is not a Business Day,
then on the immediately preceding Business
Day. If less than two Lenders quote
the aforementioned rate, the CDOR Rate
shall be the rate quoted by the Canadian
Agent.
"CERI Board Reconstitution": the reconstitution of the board of
directors of CERI to the extent necessary
to comply with the applicable rules
and regulations of the Securities and
Exchange Commission or any securities
exchange or quotation system on which its
securities trade.
"Change of Control": the occurrence of any of the following
events:
(a) any "person" or "group" (as such terms
are used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")),
excluding the Existing Investors and the
Borrower (solely as a result of the
Migration), shall become, or obtain rights
(whether by means or warrants,
options or otherwise) to become, the
"beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more
than 30% of the outstanding common stock of
CERI; (b) during any period of 12
consecutive months the board of directors
of CERI shall cease to consist of a
majority of Continuing Directors at any
time prior to the Migration, (c) at any
time after the Migration, any "person" or
"group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the
"Exchange Act")), excluding the Existing
Investors, shall become, or obtain
rights (whether by
9
<PAGE>
means or warrants, options or otherwise) to
become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under
the Exchange Act), directly or
indirectly, of more than 30% of the
outstanding common stock of the Borrower;
(d) during any period of 12 consecutive
months, at any time after the Migration,
the board of directors of the Borrower
shall cease to consist of a majority of
Continuing Directors; or (e) any Specified
Change of Control. Notwithstanding
the foregoing (i) the Migration and each of
the transactions and corporate
actions contemplated thereby and (ii) the
CERI Board Reconstitution shall not
constitute, or be deemed to result in, a
Change of Control.
"Code": the Internal Revenue Code of 1986, as amended from time
to
time.
"Collateral": all Property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is
purported to be created by any Security
Document.
"Commitment": with respect to any Lender, the sum of Tranche B
Term
Loan Commitment and the Revolving Credit
Commitment of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control
with the Borrower within the meaning
of Section 4001(b)(1) of ERISA or is part
of a group that includes the Borrower
and that is treated as a single employer
under Section 414(b) or 414(c) of the
Code or, solely for purposes of Section 412
of the Code to the extent required
by such section, Section 414(m) or 414(o)
of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer, substantially in the
form of Exhibit B.
"Confidential Information Memorandum": the Confidential
Information
Memorandum dated April 2004 and furnished
to the initial Lenders in connection
with the syndication of the Facilities.
"Consolidated Current Assets": of any Person at any date, all
amounts (other than cash and Cash
Equivalents) that would, in conformity with
GAAP, be set forth opposite the caption
"total current assets" (or any like
caption) on a consolidated balance sheet of
such Person and its Subsidiaries at
such date.
"Consolidated Current Liabilities": of any Person at any date,
all
amounts that would, in conformity with
GAAP, be set forth opposite the caption
"total current liabilities" (or any like
caption) on a consolidated balance
sheet of such Person and its Subsidiaries
at such date, but excluding, with
respect to the Borrower or, prior to the
Migration, CERI (a) the current portion
of any Funded Debt of the Group Members and
(b), without duplication, all
Indebtedness consisting of Revolving Credit
Loans, Letters of Credit or Swing
Line Loans, to the extent otherwise
included therein.
"Consolidated EBITDA": of any Person for any period,
Consolidated
Net Income of such Person and its
Subsidiaries for such period plus, without
duplication and to the extent reflected as
a charge in the statement of such
Consolidated Net Income for such period,
the sum of (a) income tax expense, (b)
total cash interest expense of such Person
and its Subsidiaries,
10
<PAGE>
amortization or write-off of debt discount
and debt issuance costs and
commissions, discounts and other fees and
charges associated with Indebtedness,
(c) depreciation and amortization expense,
(d) amortization of intangibles
(including, but not limited to, goodwill)
and organization costs, (e) any
extraordinary, unusual or non-recurring
expenses or losses (including, whether
or not otherwise includable as a separate
item in the statement of such
Consolidated Net Income for such period,
losses on sales of assets outside of
the ordinary course of business), (f) any
other non-cash charges and expenses
(including any losses attributable to
fluctuations in foreign currency exchange
rates), (g) one-time charges and expenses
(including costs, fees and expenses in
connection with the Migration) not to
exceed $1,000,000 over the term of this
Agreement, (h) one-time severance charges,
not to exceed $200,000 over the term
of this Agreement, (i) one-time integration
costs in connection with the
purchase of the Allied Business not to
exceed $1,000,000 and (j) to the extent
not constituting cash interest expense, all
expenses attributable to dividends
and accruals in respect of preferred stock
(including the Kelso Preferred
Stock), and minus, to the extent included
in the statement of such Consolidated
Net Income for such period, the sum of (a)
interest income (except to the extent
deducted in determining total cash interest
expense), (b) any extraordinary,
unusual or non-recurring income or gains
(including, whether or not otherwise
includable as a separate item in the
statement of such Consolidated Net Income
for such period, gains on the sales of
assets outside of the ordinary course of
business) and (c) any other non-cash income
(including any gains attributable to
fluctuations in foreign currency exchange
rates), all as determined on a
consolidated basis; provided that, for
purposes of calculating Consolidated
EBITDA of the Group Members for any period,
(i) the Consolidated EBITDA of any
business unit acquired by the Group Members
during such period (other than a
business unit described in clause (iii)
below) shall be included on a pro forma
basis (but without giving effect to any
projected synergies or cost savings
resulting from such acquisition except
those adjustments in accordance with
Regulation S-X of the Securities Act of
1933 or otherwise agreed to by the
Administrative Agent) for such period
(assuming for purposes of the calculation
of Consolidated EBITDA the consummation of
such acquisition occurred on the
first day of such period but without
duplication of the Consolidated EBITDA of
such business unit after the date of
acquisition thereof) if the consolidated
balance sheet of such acquired business
unit as at the end of the period
preceding the acquisition of such business
unit and the related consolidated
statements of income and stockholders'
equity and of cash flows (or, if no such
balance sheet or statements of income and
stockholder's equity and of cash flows
is available, such other financial
information reasonably satisfactory to the
Administrative Agent) for the period in
respect of which Consolidated EBITDA is
to be calculated (x) have been previously
provided to the Administrative Agent
and (y) either (1) have been reported on
without a qualification arising out of
the scope of the audit by independent
certified public accountants of nationally
recognized standing or (2) have been found
acceptable by the Administrative
Agent, (ii) the Consolidated EBITDA of the
JED Landfill for the fiscal quarters
ending June 30, 2004, September 30, 2004
and December 31, 2004 shall be adjusted
(x) to exclude any Consolidated EBITDA
attributable to such landfill for any
fiscal quarters preceding such fiscal
quarters and (y) to include Consolidated
EBITDA of such landfill for such fiscal
quarters equal to (A) in the case of the
fiscal quarter ending June 30, 2004, the
Consolidated EBITDA attributable to
such landfill for such quarter multiplied
by four, (B) in the case of the fiscal
quarter ending September 30, 2004, the
Consolidated EBITDA attributable to such
landfill for the fiscal quarters ending
June 30, 2004 and September 30, 2004
multiplied by two and (C) in the case of
the fiscal quarter ending December 31,
2004, the Consolidated EBITDA attributable
to such landfill for the fiscal
quarters ending June 30, 2004, September
30,
11
<PAGE>
2004 and December 31, 2004 multiplied by
4/3, (iii) the Consolidated EBITDA
attributable to the Borrower's Arizona
collection business for the fiscal
quarters ending June 30, 2004 and September
30, 2004 shall be adjusted (x) to
exclude any Consolidated EBITDA
attributable to such collections business for
the fiscal quarters prior to and including
March 31, 2004 and (y) to annualize
Consolidated EBITDA for the fiscal quarters
ending June 30, 2004 and September
30, 2004 by (A) in the case of the fiscal
quarter ending June 30, 2004,
multiplying the Consolidated EBITDA
attributable to the Arizona collection
business for the fiscal quarters ending
March 31, 2004 and June 30, 2004 by two,
(B) in the case of the fiscal quarter
ending September 30, 2004, multiplying the
Consolidated EBITDA attributable to the
Arizona collection business for the
fiscal quarters ending March 31, 2004, June
30, 2004 and September 30, 2004 by
4/3 and (iv) the Consolidated EBITDA of any
business unit Disposed of by the
Group Members during such period shall be
excluded for such period (assuming for
purposes of the calculation of Consolidated
EBITDA the consummation of such
Disposition occurred on the first day of
such period); and provided, further,
that the Consolidated EBITDA of CERI and
its Subsidiaries for the fiscal
quarters ending September 30, 2003,
December 31, 2003 and March 31, 2004,
calculated to exclude the effect of the JED
Landfill and the Arizona collection
business, shall be conclusively deemed to
equal $14,529,000, $9,658,000 and
$8,112,625, respectively as more
specifically set forth in Schedule 1.1 and the
Consolidated EBITDA of the Arizona
collection business for the fiscal quarter
ending March 31, 2004, shall be
conclusively deemed to equal $599,000.
"Consolidated Interest Coverage Ratio": for any period, the ratio
of
(a) Consolidated EBITDA of the Group
Members for such period to (b) Consolidated
Interest Expense of the Group Members for
such period.
"Consolidated Interest Expense": of any Person for any period,
total
cash interest expense (including that
attributable to Capital Lease Obligations)
of such Person and its Subsidiaries for
such period with respect to all
outstanding Indebtedness of such Person and
its Subsidiaries (including, without
limitation, all commissions, discounts and
other fees and charges owed by such
Person with respect to letters of credit
and bankers' acceptance financing and
net costs of such Person under Hedge
Agreements in respect of interest rates to
the extent such net costs are allocable to
such period in accordance with GAAP);
provided that Consolidated Interest Expense
of the Group Members for each of the
fiscal quarters ending September 30, 2003,
December 31, 2003 and March 31, 2004
shall be conclusively deemed to be equal to
$4,927,400; and provided, further,
that cash interest expense with respect to
fees payable in connection with the
Existing Letters of Credit shall be
calculated on the basis of when such fee is
earned.
"Consolidated Leverage Ratio": as at the last day of any period
of
CERI or, after the Migration, the Borrower,
the ratio of (a) Consolidated Total
Debt on such day to (b) Consolidated EBITDA
of the Group Members for such
period.
"Consolidated Net Income": of any Person for any period, the
consolidated net income (or loss) of such
Person and its Subsidiaries for such
period, determined on a consolidated basis
in accordance with GAAP; provided,
that in calculating Consolidated Net Income
of the Group Members for any period,
there shall be excluded (a) the income (or
deficit) of any Person accrued prior
to the date it becomes a Subsidiary of CERI
or, after the Migration, the
Borrower, or is merged into or consolidated
with any Group Member, (b) the
income (or
12
<PAGE>
deficit) of any Person (other than a
Subsidiary of CERI or, after the Migration,
the Borrower) in which any Group Member has
an ownership interest, except to the
extent that any such income is actually
received by a Group Member in the form
of cash dividends or similar distributions
and (c) the undistributed earnings of
any Subsidiary of CERI or, after the
Migration, the Borrower, to the extent that
the declaration or payment of dividends or
similar distributions by such
Subsidiary is not at the time permitted by
the terms of any Contractual
Obligation (other than under any Loan
Document) or Requirement of Law applicable
to such Subsidiary.
"Consolidated Senior Debt": all Consolidated Total Debt other
than
Subordinated Debt.
"Consolidated Senior Secured Debt": at any date, without
duplication, the sum of (i) the aggregate
principal amount of all Term Loans
then outstanding, (ii) the aggregate
principal amount of Revolving Credit Loans
then outstanding, (iii) the aggregate
principal amount of Swing Line Loans then
outstanding and (iv) the aggregate
principal amount of any other secured
Consolidated Senior Debt then
outstanding.
"Consolidated Senior Secured Leverage Ratio": as of the last day
of
any period of CERI or, after the Migration,
the Borrower, the ratio of (a)
Consolidated Senior Secured Debt on such
day to (b) Consolidated EBITDA of the
Group Members for such period.
"Consolidated Total Debt": at any date, without duplication,
the
aggregate principal amount of all
Indebtedness of the Group Members at such date
that would be classified as a liability on
the consolidated balance sheet of the
Group Members, determined on a consolidated
basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the difference of
(a)
Consolidated Current Assets of CERI or,
after the Migration, the Borrower on
such date less (b) Consolidated Current
Liabilities of CERI or, after the
Migration, the Borrower on such date.
"Continuing Directors": (a) with respect to CERI, the directors
of
CERI on the Restatement Effective Date and
on the date of the CERI Board
Reconstitution, and each other director of
CERI, if, in each case, such other
director's nomination for election to the
board of directors of CERI is
recommended by at least a majority of the
then Continuing Directors, or such
other director receives the vote of the
Existing Investors in his or her
election by the shareholders of CERI, or
such other director is appointed or
elected, or such Director's appointment was
approved, in each case by the Kelso
Investors and (b) with respect to the
Borrower, the directors of the Borrower,
immediately after giving effect to the
Migration and each other director of the
Borrower, if, in each case, such other
director's nomination for election to the
board of directors of CERI is recommended
by at least a majority of the then
Continuing Directors, or such other
director receives the vote of the Existing
Investors in his or her election by the
shareholders of the Borrower or such
other director is appointed or elected, or
such Director's appointment was
approved, in each case by the Kelso
Investors.
"Contractual Obligation": with respect to any Person, any
provision
of any security issued by such Person or of
any agreement, instrument or other
undertaking to which such Person is a party
or by which it or any of its
Property is bound.
13
<PAGE>
"Control Investment Affiliate": with respect to any Person, any
other Person that (a) directly or
indirectly, is in control of, is controlled
by, or is under common control with, such
Person and (b) is organized by such
Person or the manager, advisor or
administrator of such Person primarily for the
purpose of making equity or debt
investments in one or more companies. For
purposes of this definition, "control" of a
Person means the power, directly or
indirectly, to direct or cause the
direction of the management and policies of
such Person, whether by contract or
otherwise.
"Default": any of the events specified in Section 8, whether or
not
any requirement for the giving of notice,
the lapse of time, or both, has been
satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
"Discount Note": a non-interest bearing promissory note
denominated
in Canadian Dollars, substantially in the
form of Exhibit H, issued by CERI to a
Non BA Lender to evidence a BA Equivalent
Loan.
"Discount Proceeds": for any Bankers' Acceptance issued
hereunder,
an amount calculated on the applicable
Borrowing Date by multiplying:
(a) the face
amount of the Bankers' Acceptance
by
(b) the quotient
obtained by dividing:
(i) one
by
(ii) the sum of one
plus the product of:
(A) the Discount
Rate applicable to the Bankers'
Acceptance
and
(B) a fraction,
the numerator of which is the
applicable Interest Period and the denominator of
which is 365
with the quotient being rounded up or down
to the fifth decimal place and .00005
being rounded up.
"Discount Rate": (a) in respect of any Bankers' Acceptance
accepted
by a Lender that is a Schedule I Lender,
the CDOR Rate for the applicable
period; and (b) in respect of any Bankers'
Acceptance accepted by a Lender that
is a Schedule II Lender, the CDOR Rate for
the applicable period plus .10%.
"Disposition": with respect to any Property, any sale, lease,
sale
and leaseback, assignment, conveyance,
transfer or other disposition thereof
(other than the granting or creation
14
<PAGE>
of any Liens with respect to such
property); and the terms "Dispose" and
"Disposed of" shall have correlative
meanings.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": lawful currency of the United States of
America.
"Dollar Equivalent": as to any amount denominated in Canadian
Dollars at any time, the equivalent amount
in Dollars as determined on the basis
of the Exchange Rate for the purchase of
Dollars with Canadian Dollars as of the
date of the calculation.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of any jurisdiction within
the United States of America.
"ECF Percentage": with respect to any fiscal year of CERI or,
after
the Migration, the Borrower, 50.0%;
provided, that, with respect to any fiscal
year of CERI or, after the Migration, the
Borrower ending on or after December
31, 2005, the ECF Percentage shall be 0.0%
if the Consolidated Leverage Ratio as
of the last day of such fiscal year is not
greater than 3.50 to 1.00.
"Environmental Laws": any and all laws, rules, orders,
regulations,
statutes, ordinances, codes, decrees, or
other legally enforceable requirements
(including, without limitation, common law)
of any international authority,
foreign government, the United States of
America, Canada or any state,
provincial, territorial, local, municipal
or other governmental authority,
regulating, relating to or imposing
liability or standards of conduct concerning
protection of the environment or of human
health, or employee health and safety,
as has been, is now, or hereafter becomes,
in effect.
"Environmental Permits": any and all permits, licenses,
approvals,
registrations, notifications, exemptions
and other authorizations required under
any applicable Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day, the aggregate
(without duplication) of the maximum rates
(expressed as a decimal fraction) of
reserve requirements in effect on such day
(including, without limitation,
basic, supplemental, marginal and emergency
reserves) under any regulations of
the Board or other Governmental Authority
having jurisdiction with respect
thereto dealing with reserve requirements
prescribed for eurocurrency funding
(currently referred to as "Eurocurrency
Liabilities" in Regulation D of the
Board) maintained by a member bank of the
Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period, the rate per annum
determined on the basis of the rate for
deposits in Dollars for a period equal to
such Interest Period commencing on the
first day of such Interest Period appearing
on Page 3750 of the Telerate screen
as of 11:00 A.M., London time, two Business
Days prior to the beginning of such
Interest Period. In the event that such
rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" for
purposes of this definition
15
<PAGE>
shall be determined by reference to such
other comparable publicly available
service for displaying eurodollar rates as
may be selected by the Administrative
Agent.
"Eurodollar Loans": Loans for which the applicable rate of
interest
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest
Period, a rate per annum determined for
such day in accordance with the
following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans
the then current Interest Periods with
respect to all of which begin on the same
date and end on the same later date
(whether or not such Loans shall originally
have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the
giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Cash Flow": for any fiscal year of CERI or, after the
Migration, the Borrower, the difference, if
any, of (a) the sum, without
duplication, of (i) Consolidated Net Income
for such fiscal year, (ii) the
amount of all non-cash charges (including
depreciation and amortization)
deducted in arriving at such Consolidated
Net Income, (iii) the amount of the
decrease, if any, in Consolidated Working
Capital for such fiscal year, (iv) the
aggregate net amount of non cash loss on
the Disposition of Property by the
Group Members during such fiscal year
(other than sales of inventory in the
ordinary course of business), to the extent
deducted in arriving at such
Consolidated Net Income and (v) the net
increase during such fiscal year (if
any) in deferred tax accounts of the Group
Members, minus (b) the sum, without
duplication, of (i) the amount of all
non-cash credits included in arriving at
such Consolidated Net Income, (ii) the
aggregate amount actually paid by the
Group Members in cash during such fiscal
year on account of Capital Expenditures
(excluding (x) the amount of any Capital
Expenditure to the extent financed by
Funded Debt (other than Indebtedness under
revolving credit arrangements)
incurred and used to finance such
expenditures and (y) the amount of any such
Capital Expenditures financed with the
proceeds of any Reinvestment Deferred
Amount in such fiscal year), (iii) to the
extent added in calculating
Consolidated Net Income the aggregate
amount of Reinvestment Deferred Amounts on
the last day of such fiscal year, (iv) the
aggregate amount of all optional
prepayments of Revolving Credit Loans and
Swing Line Loans during such fiscal
year to the extent accompanying permanent
optional reductions of the Revolving
Credit Commitments and all optional
prepayments of the Term Loans during such
fiscal year, (v) the aggregate amount of
all regularly scheduled principal
payments of Funded Debt (including, without
limitation, the Term Loans) of the
Group Members made during such fiscal year
(other than in respect of any
revolving credit facility to the extent
there is not an equivalent permanent
reduction in commitments thereunder), (vi)
the amount of the increase, if any,
in Consolidated Working Capital for such
fiscal year, (vii) the aggregate net
amount of non cash gain on the Disposition
of Property by the Group Members
during such fiscal year (other than sales
of inventory in the ordinary course of
business), to the extent included in
arriving at such Consolidated Net Income,
(viii) the net decrease during such fiscal
year (if any) in deferred tax
16
<PAGE>
accounts of the Group Members, (ix) the
amount of any Restricted Payments
permitted under Sections 7.6(d) and (h)
made in such fiscal year and (x) the
aggregate amount of cash from operations
used to consummate any acquisition
permitted under Section 7.8 in such fiscal
year.
"Excess Cash Flow Application Date": as defined in Section
2.12(c).
"Exchange Rate": on any day, (i) with respect to Canadian
Dollars,
the spot rate at which Dollars are offered
on such day by the Canadian Agent in
Toronto, Canada (or such other location
selected by the Canadian Agent) for
Canadian Dollars, and (ii) with respect to
Dollars, the spot rate at which
Canadian Dollars are offered on such day by
the Canadian Agent in Toronto,
Canada (or such other location selected by
the Canadian Agent) for Dollars.
"Exchangeable Shares": equity securities issued by CERI to
certain
of its security holders in connection with
the Migration that are exchangeable
into common stock of the Borrower.
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in
respect
of which either (a) the pledge of all of
the Capital Stock or any of the assets
of such Subsidiary as Collateral for the
Borrower's Obligations or (b) the
guaranteeing by such Subsidiary of the
Borrower's Obligations, would, in the
good faith judgment of the Borrower, result
in adverse tax consequences to the
Borrower.
"Excluded Proceeds": Net Cash Proceeds received by CERI or,
after
the Migration, the Borrower from the
issuance of its Capital Stock (including
preferred stock) to the extent such
proceeds are used to make Investments
permitted by Section 7.8(h) and (l).
"Excluded Taxes": as defined in Section 2.20(a).
"Existing Investors": the collective reference to Michael
DeGroote,
the Kelso Investors and each manager,
officer and director of CERI who owns
Capital Stock of CERI on the Restatement
Effective Date and their Control
Investment Affiliates.
"Facility": each of (a) the Tranche B Term Loan Commitment and
the
Tranche B Term Loans made thereunder (the
"Tranche B Term Loan Facility"), (b)
the US Revolving Credit Commitments and the
extensions of credit made thereunder
(the "US Revolving Credit Facility"), and
(c) the Canadian Revolving Credit
Commitments and the extensions of credit
made thereunder (the "Canadian
Revolving Credit Facility").
"Federal Funds Effective Rate": for any day, 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 on the next
succeeding Business Day by the Federal
Reserve Bank of New York, or, if such
rate is not so published for any day which
is a Business Day, the average of the
quotations for the day of such transactions
received by the Administrative Agent
from three federal funds brokers of
recognized standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not
a
Domestic Subsidiary.
17
<PAGE>
"FQ1", "FQ2 ", "FQ3", and "FQ4": when used with a numerical
year
designation, means the first, second, third
or fourth fiscal quarters,
respectively, of such fiscal year of the
Borrower (e.g., FQ1 2004 means the
first fiscal quarter of the Borrower's 2004
fiscal year, which ends March 31,
2004).
"FRS": Florida Recycling Services, Inc., an Illinois
corporation.
"FRS Acquisition": the acquisition by Waste Services of
Florida,
Inc. of all the outstanding Capital Stock
of FRS.
"FRS Acquisition Agreement": the Amended and Restated Stock
Purchase
Agreement dated as of March 4, 2004.
"FRS Acquisition Documentation": collectively, the FRS
Acquisition
Agreement and all schedules, exhibits,
annexes and amendments thereto and all
side letters and agreements affecting the
terms thereof or entered into in
connection therewith, in each case, as
amended, supplemented or otherwise
modified from time to time in accordance
with this Agreement.
"Funded Debt": means Indebtedness that matures more than one
year
from the date of its creation or matures
within one year from such date but is
renewable or extendible, at the option of
such Person, to a date more than one
year from such date or arises under a
revolving credit or similar agreement that
obligates the lender or lenders to extend
credit during a period of more than
one year from such date.
"Funding Office": the office specified from time to time by the
Administrative Agent as its funding office
by notice to the Borrower and the
Lenders.
"GAAP": generally accepted accounting principles in the United
States of America as in effect from time to
time.
"Governmental Authority": any nation or government, any state,
province, territory or other political
subdivision thereof and any entity
exercising executive, legislative,
judicial, regulatory or administrative
functions of or pertaining to
government.
"Group Member": CERI and its Subsidiaries or, after the
Migration,
the Borrower and its Subsidiaries.
"Guarantee and Collateral Agreement": the Amended and Restated
Guarantee and Collateral Agreement executed
and delivered by the Borrower and
each Subsidiary Guarantor on the
Restatement Effective Date, as the same may be
amended, supplemented, replaced or
otherwise modified from time to time,
attached hereto as Exhibit A-1.
"Guarantee Obligation": with respect to any Person (the
"guaranteeing person"), any obligation of
(a) the guaranteeing person or (b)
another Person (including, without
limitation, any bank under any letter of
credit), if to induce the creation of which
the guaranteeing person has issued a
reimbursement, counterindemnity or similar
obligation, in either case
guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or
other obligations (the "primary
obligations") of any other third Person (the
"primary obligor") in any manner, whether
directly or indirectly, including,
without limitation, any obligation of
the
18
<PAGE>
guaranteeing person, whether or not
contingent, (i) to purchase any such primary
obligation or any Property constituting
direct or indirect security therefor,
(ii) to advance or supply funds (1) for the
purchase or payment of any such
primary obligation or (2) to maintain
working capital or equity capital of the
primary obligor or otherwise to maintain
the net worth or solvency of the
primary obligor, (iii) to purchase
Property, securities or services primarily
for the purpose of assuring the owner of
any such primary obligation of the
ability of the primary obligor to make
payment of such primary obligation or
(iv) otherwise to assure or hold harmless
the owner of any such primary
obligation against loss in respect thereof;
provided, however, that the term
Guarantee Obligation shall not include
endorsements of instruments for deposit
or collection in the ordinary course of
business. The amount of any Guarantee
Obligation of any guaranteeing person 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 Obligation
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
Obligation, 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 Obligation
shall be such guaranteeing person's maximum
reasonably anticipated liability in
respect thereof as determined by the
Borrower in good faith.
"Guarantors": the collective reference to CERI, the Canadian
Subsidiary Guarantors and the Subsidiary
Guarantors.
"Hedge Agreements": all interest rate or currency swaps, caps
or
collar agreements, foreign exchange
agreements, commodity contracts or similar
arrangements entered into by any Group
Member providing for protection against
fluctuations in interest rates, currency
exchange rates, commodity prices or the
exchange of nominal interest obligations,
either generally or under specific
contingencies.
"Inactive Subsidiaries": each of CERI, Inc., a Delaware
corporation
and Capital Holdings Company, in each case,
so long as they meet the
requirements of Section 4.25.
"Incremental Term Loan Facility": as defined in Section
10.1(b).
"Indebtedness": of any Person at any date, without duplication,
(a)
all indebtedness of such Person for
borrowed money, (b) all obligations of such
Person for the deferred purchase price of
Property or services (other than trade
payables incurred in the ordinary course of
such Person's business), (c) all
obligations of such Person evidenced by
notes, debentures or other similar
instruments, (d) all indebtedness created
or arising under any conditional sale
or other title retention agreement with
respect to Property acquired by such
Person (even though the rights and remedies
of the seller or lender under such
agreement in the event of default are
limited to repossession or sale of such
Property), (e) all Capital Lease
Obligations or Synthetic Lease Obligations of
such Person, (f) all obligations of such
Person, contingent or otherwise, as an
account party or applicant under
acceptance, letter of credit, surety bonds
(except unmatured reimbursement obligations
in respect of surety bonds obtained
in the ordinary course of business to
secure the performance of obligations that
are not Indebtedness pursuant to another
clause of this definition) or similar
facilities, (g) the liquidation value of
all redeemable preferred Capital Stock
of such Person, to the extent mandatorily
redeemable (upon the occurrence of a
contingency or otherwise) in cash on or
prior to the date which is one year
19
<PAGE>
after the final maturity date of the Loans
(other than in connection with change
of control events and asset sales to the
extent that the terms of such Capital
Stock provide that such Person may not
repurchase or redeem any such Capital
Stock in connection with such change of
control or asset sale unless such
repurchase or redemption complies with the
provisions of this Agreement, (h) all
obligations of such Person, contingent or
otherwise, to purchase, redeem, retire
or otherwise acquire for value any Capital
Stock of such Person in cash on or
prior to the date which is one year after
the final maturity date of the Loans
(other than in connection with change of
control events and asset sales to the
extent that the terms of such Capital Stock
provide that such Person may not
repurchase or redeem any such Capital Stock
in connection with such change of
control or asset sale unless such
repurchase or redemption complies with the
provisions of this Agreement), (i) all
Guarantee Obligations of such Person in
respect of obligations of the kind referred
to in clauses (a) through (h) above,
(j) all obligations of the kind referred to
in clauses (a) through (i) above
secured by (or for which the holder of such
obligation has an existing right,
contingent or otherwise, to be secured by)
any Lien on Property (including,
without limitation, accounts and contract
rights) owned by such Person, whether
or not such Person has assumed or become
liable for the payment of such
obligation and (k) for the purposes of
Section 8(e) only, all obligations of
such Person in respect of Hedge
Agreements.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnitee": as defined in Section 10.5.
"Insolvency": with respect to any Multiemployer Plan, the
condition
that such Plan is insolvent within the
meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights,
priorities and privileges relating to
intellectual property, whether arising
under United States of America, Canada,
state, provincial, territorial,
multinational or foreign laws or otherwise,
including, without limitation,
copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark
licenses, service-marks, technology,
know-how and processes, recipes, formulas,
trade secrets, and all rights to sue at law
or in equity for any infringement or
other impairment thereof, including the
right to receive all proceeds and
damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan (other
than
any Base Rate Loan under the Canadian
Revolving Credit Facility) the last day of
each March, June, September and December to
occur while such Loan is outstanding
and the final maturity date of such Loan,
(b) as to any Base Rate Loan under the
Canadian Revolving Credit Facility and any
Canadian Prime Rate Loan, the first
day of the month following the month in
which such interest was accrued, (c) as
to any Eurodollar Loan having an Interest
Period of three months or shorter, the
last day of such Interest Period, (d) as to
any Eurodollar Loan having an
Interest Period longer than three months,
each day that is three months, or a
whole multiple thereof, after the first day
of such Interest Period and the last
day of such Interest Period and (e) as to
any Loan (other than any Revolving
Credit Loan that is a Base Rate Loan and
any Swing Line Loan), the date of any
repayment or prepayment made in respect
thereof.
20
<PAGE>
"Interest Period": as to any Eurodollar Loan or Bankers'
Acceptance,
(a) initially, the period commencing on the
borrowing or conversion date, as the
case may be, with respect to such
Eurodollar Loan or Bankers' Acceptance and
ending one, two, three or six months
thereafter, as selected by the Borrower or
CERI, as applicable, in its notice of
borrowing or notice of conversion, as the
case may be, given with respect thereto;
and (b) thereafter, each period
commencing on the last day of the next
preceding Interest Period applicable to
such Eurodollar Loan or Bankers' Acceptance
and ending one, two, three or six
months thereafter, as selected by the
Borrower or CERI, as applicable, by
irrevocable notice to the Administrative
Agent or the Canadian Agent in respect
of Bankers' Acceptance, not less than three
Business Days prior to the last day
of the then current Interest Period with
respect thereto; provided that, all of
the foregoing provisions relating to
Interest Periods are subject to the
following:
(i) if any
Interest Period would otherwise end on a day that
is not a
Business Day, such Interest Period shall be extended to the
next
succeeding
Business Day unless the result of such extension would be to
carry such
Interest Period into another calendar month in which event such
Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest
Period in respect of any Eurodollar Loan
that would
otherwise extend beyond the Revolving Credit Termination Date
(in the
case of a Eurodollar Loan which is a Revolving Loan) or beyond
the
date final
payment is due on the Tranche B Term Loan (in the case of a
Eurodollar
Loan which is a Tranche B Term Loan), shall end on the
Revolving
Credit Termination Date or such due date, as applicable;
(iii) no Interest Period in respect of a Bankers' Acceptance
may extend
beyond the Canadian Revolving Credit Termination Date; and
(iv) any Interest
Period that begins on the last Business Day
of a
calendar month (or on a day for which there is no numerically
corresponding
day in the calendar month at the end of such Interest
Period)
shall end on the last Business Day of the calendar month at the
end of
such Interest Period.
"Investments": as defined in Section 7.8.
"IRB Transaction": means the issuance of industrial revenue bonds
by
Governmental Authorities in connection with
the purchase, construction,
development or improvement of real property
by any Group Member to be used in
its business or any buildings and equipment
related thereto which are guaranteed
by or backed by the credit of any Group
Member.
"Issuing Lender" any US Issuing Lender and any Canadian Issuing
Lender.
"Jacksonville Acquisition" the consummation of the purchase by
Waste
Services of Florida, Inc. of assets used in
the Allied Business located in the
Jacksonville, Florida metropolitan area,
pursuant to the Allied Acquisition
Agreement.
"JED Landfill": a permitted municipal solid waste landfill
located
in Osceola County, Florida.
21
<PAGE>
"Judgment Currency": as defined in Section 10.20.
"Kelso Investors": Kelso & Company and its Control
Investment
Affiliates.
"Kelso Preferred Stock": the Series A Preferred Stock of the
Borrower issued, paid-in-kind or accruing
pursuant to the Kelso Preferred Stock
Documents.
"Kelso Preferred Stock Documents": collectively, (a) the
Preferred
Stock Subscription Agreement, dated as of
May 6, 2003, among the Borrower, CERI
and certain Kelso Investors and (b) the
Certificate of Designations with respect
to the Series A Preferred Stock of the
Borrower, in each case, as amended,
supplemented, replaced, waived or otherwise
modified from time to time in
accordance with this Agreement.
"L/C Commitment": as to any Revolving Credit Lender, the sum of
its
US L/C Commitment and its Canadian L/C
Commitment.
"L/C Fee Payment Date": as to any US Letters of Credit, the last
day
of each March, June, September and December
and the last day of the US Revolving
Credit Commitment Period and as to any
Canadian Letters of Credit, the first day
of each April, July, October and January
and the last day of the Canadian
Revolving Credit Commitment Period.
"L/C Obligations": the Canadian L/C Obligations and the US L/C
Obligations.
"Lender Addendum": with respect to any applicable Lender, a
Lender
Addendum, substantially in the form of
Exhibit I, to be executed and delivered
by such Lender on the Restatement Effective
Date as provided in Section 10.17.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": the Canadian Letters of Credit and the US
Letters of Credit.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (statutory
or other), charge or other security
interest or any preference, priority or
other security agreement or preferential
arrangement of any kind or nature
whatsoever (including, without limitation, any
conditional sale or other title retention
agreement and any capital lease having
substantially the same economic effect as
any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement (including any amendments,
consents
or waivers with respect thereto), the
Security Documents, the Applications and
the Notes.
"Loan Parties": CERI, the Borrower and each Subsidiary of CERI,
or
after the Migration, of the Borrower, that
is a party to a Loan Document.
"Majority Facility Lenders": with respect to (i) the Tranche B
Term
Loan Facility, the holders of more than 50%
of the sum of the aggregate unpaid
principal amount of the Tranche B Term
Loans or (ii) the Revolving Credit
Facilities, the holders of more than
50%
22
<PAGE>
of the Total Revolving Credit Commitments
then in effect or, if the Revolving
Credit Commitments have been terminated,
the Total Revolving Extensions of
Credit then outstanding.
"Majority Revolving Credit Facility Lenders": the Majority
Facility
Lenders in respect of the Revolving Credit
Facilities.
"Material Adverse Effect": a material adverse effect on (a) the
business, assets, financial condition, or
results of operation of the Group
Members taken as a whole or (b) the
validity or enforceability of this Agreement
or any of the other Loan Documents or the
rights or remedies of the Agents or
the Lenders hereunder or thereunder.
"Material Environmental Amount": an amount or amounts payable by
the
Group Members, in the aggregate in excess
of $2,000,000 for: unbudgeted costs to
comply with any Environmental Law; costs of
any investigation, and any
remediation, of any Material of
Environmental Concern; and compensatory damages
(including, without limitation damages to
natural resources), punitive damages,
fines, and penalties pursuant to any
Environmental Law.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction
thereof) or petroleum products,
polychlorinated biphenyls,
urea-formaldehyde insulation, asbestos,
radioactivity, and any other substances,
pollutants, contaminants or forces of
any kind that are defined or regulated as
hazardous, dangerous or toxic under
any Environmental Law or could give rise to
liability under any Environmental
Law.
"Migration": the reorganization in which CERI and its Canadian
Subsidiaries will become indirect
Subsidiaries of the Borrower by way of a plan
of arrangement under the Business
Corporations Act (Ontario) to be approved by
the Ontario Superior Court of Justice and
certain security holders of CERI
pursuant to which (a) all common shares of
CERI will be held by Capital Holdings
Company or another subsidiary of the
Borrower organized in Nova Scotia, (b) the
former holders of common shares of CERI
will receive shares of common stock of
the Borrower or Exchangeable Shares, (c)
the balance of the outstanding
intercompany Indebtedness from the Borrower
to CERI will be assumed by Capital
Holdings Company, and (d) CERI and its
Canadian Subsidiaries shall become
Excluded Foreign Subsidiaries; provided,
however, that other than as a result of
the redemption of the common stock of the
Borrower held by CERI, the Migration
does not give rise to any Canadian or
United States of America income tax
liability to any Group Member; provided,
further, that the redemption of the
common stock of the Borrower held by CERI
does not give rise to any Canadian
taxable income that would exceed the amount
of CERI's loss carry forwards
available at the time of the Migration.
"Mortgaged Properties": the owned real properties listed on
Schedule
4.24, as to which the Administrative Agent
for the benefit of the Secured
Parties shall be granted a Lien pursuant to
the Mortgages.
"Mortgages": each of the mortgages and deeds of trust made by
any
Loan Party in favor of, or for the benefit
of, the Administrative Agent for the
benefit of the Secured Parties,
substantially in the form of Exhibit D-1 with
respect to property in the United States of
America, and Exhibit D-2 with
respect to property in Canada (with such
changes thereto as shall be advisable
under the law of the jurisdiction in which
such mortgage or deed of trust is to
be
23
<PAGE>
recorded), as the same may be amended,
supplemented, replaced or otherwise
modified from time to time.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined
in Section 4001(a)(3) of ERISA to which the
Borrower or a Commonly Controlled
Entity is making or accruing an obligation
to make contributions, or has within
any of the preceding five plan years made
or accrued an obligation to make
contributions.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any
Recovery Event, the proceeds thereof in the
form of cash and Cash Equivalents
(including any such proceeds received by
way of deferred payment of principal
pursuant to a note or installment
receivable or purchase price adjustment
receivable or otherwise, but only as and
when received) of such Asset Sale or
Recovery Event, net of reasonable and
customary attorneys' fees, accountants'
fees, investment banking fees, amounts
required to be applied to the repayment
of Indebtedness secured by a Lien expressly
permitted hereunder on any asset
which is the subject of such Asset Sale or
Recovery Event (other than any Lien
pursuant to a Security Document), and other
reasonable and customary fees and
expenses actually incurred in connection
therewith and net of taxes paid or
reasonably estimated to be payable as a
result thereof (after taking into
account any available tax credits or
deductions and any tax sharing
arrangements) and, solely in connection
with any such Asset Sale, any reserves
in accordance with GAAP with respect to any
adjustments to the sales prices of
such assets or established with respect to
any liabilities (including
indemnities) potentially arising in
connection with such sale; provided, that
any such reserved amount shall be Net Cash
Proceeds to the extent and at the
time not required to be so reserved, (b) in
connection with any issuance or sale
of equity securities or debt securities or
instruments or the incurrence of
loans, the cash proceeds received from such
issuance or incurrence, net of
attorneys' fees, investment banking fees,
accountants' fees, underwriting
discounts and commissions and other
customary fees and expenses actually
incurred in connection therewith and (c) in
connection with any Purchase Price
Refund, the cash amount thereof, net of any
reasonable and customary expenses
incurred in the collection thereof and net
of taxes paid or reasonably estimated
to be payable as a result thereof (after
taking into account any available tax
credits or deductions and any tax sharing
arrangement).
"Non BA Lender": a Canadian Revolving Credit Lender that cannot
or
does not as a matter of policy issue
Bankers' Acceptances.
"Non-Excluded Taxes": as defined in Section 2.20(a).
"Non-U.S. Lender": as defined in Section 2.20(e).
"Note": any promissory note evidencing any Loan.
"Obligation Currency": as defined in Section 10.20.
"Obligations": (i) the unpaid principal of and interest on
(including, without limitation, interest
accruing after the maturity of the
Loans and Reimbursement Obligations and
interest accruing after the filing of
any petition in bankruptcy, or the
commencement of any insolvency,
reorganization or like proceeding, relating
to the Borrower, whether or not a
claim for post-filing or post-petition
interest is allowed in such proceeding)
the Loans, the
24
<PAGE>
Reimbursement Obligations and all other
obligations and liabilities of the
Borrower to the Administrative Agent or to
any Lender or any Qualified
Counterparty, whether direct or indirect,
absolute or contingent, due or to
become due, or now existing or hereafter
incurred, which may arise under, out
of, or in connection with, this Agreement,
any other Loan Document, the Letters
of Credit, any Specified Hedge Agreement or
any other document made, delivered
or given in connection herewith or
therewith, whether on account of principal,
interest, reimbursement obligations, fees,
indemnities, costs, expenses
(including, without limitation, all fees,
charges and disbursements of counsel
to the Arranger, to the Agents or to any
Lender that are required to be paid by
the Borrower pursuant hereto) or otherwise
and (ii) the Canadian Obligations;
provided, that (x) obligations of any Group
Member under any Specified Hedge
Agreement shall be secured and guaranteed
pursuant to the Security Documents
only to the extent that, and for so long
as, the other Obligations are so
secured and guaranteed and (y) any release
of Collateral or Guarantors effected
in the manner permitted by this Agreement
shall not require the consent of
holders of obligations under Specified
Hedge Agreements.
"Original Credit Agreement": as defined in the preamble.
"Original Lenders": as defined in the preamble.
"Other Taxes": any and all present or future stamp or
documentary
taxes or any other excise or property
taxes, charges or similar levies arising
from any payment made hereunder or from the
execution, delivery or enforcement
of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Participant": as defined in Section 10.6(b).
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office
by notice to the Borrower and the
Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA
(or any successor).
"Permits": the collective reference to (i) Environmental
Permits,
and (ii) any and all other franchises,
licenses, leases, permits, approvals,
notifications, certifications,
registrations, authorizations, exemptions,
qualifications, easements, and rights of
way.
"Permitted Acquisition": as defined in Section 7.8(h).
"Permitted Liens": the collective reference to (i) in the case
of
Collateral other than Pledged Stock, Liens
permitted by Section 7.3 and (ii) in
the case of Collateral consisting of
Pledged Stock, non-consensual Liens
permitted by Section 7.3 to the extent
arising by operation of law.
"Person": an individual, partnership, corporation, limited
liability
company, business trust, joint stock
company, trust, unincorporated association,
joint venture, Governmental Authority or
other entity of whatever nature.
"Personal Property Security Legislation": all applicable
personal
property security legislation as all such
legislation now exists or may from
time to time hereafter be
25
<PAGE>
amended, modified, recodified, supplemented
or replaced, together with all rules
and regulations thereunder or related
thereto, including without limitation, the
UCC and the Personal Property Security Act
(Ontario).
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which
the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated
at such time, would under Section
4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of
ERISA, but excluding, for greater
certainty, Canadian Benefit Plans and Canadian
Pension Plans.
"Pledged Stock": as defined in the Guarantee and Collateral
Agreement or the Canadian Guarantee and
Collateral Agreement, as applicable.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro
Forma Balance Sheet": as defined in Section 4.1(a).
"Projections": as defined in Section 6.2(c).
"Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed
and whether tangible or intangible,
including, without limitation, Capital
Stock.
"Purchase Price Refund": any amount received by any Group Member
as
a result of a purchase price adjustment or
similar event in connection with any
acquisition of Property by any Group
Member.
"Qualified Counterparty": with respect to any Specified Hedge
Agreement, any counterparty thereto that,
at the time such Specified Hedge
Agreement was entered into, was a Lender or
an affiliate of a Lender.
"Real Estate": all Real Property held or used by the Group
Members,
which the relevant Group Member owns in fee
or in which it holds a leasehold
interest as a tenant.
"Recovery Event": any settlement of or payment in respect of
any
property or casualty insurance claim or any
condemnation proceeding relating to
any asset of any Group Member.
"Register": as defined in Section 10.6(d).
"Regulation H": Regulation H of the Board as in effect from time
to
time.
"Regulation U": Regulation U of the Board as in effect from time
to
time.
"Reimbursement Obligation": the obligation of the Borrower
and/or
CERI, as applicable, to reimburse each
Issuing Lender pursuant to Section 3.5
for amounts drawn under Letters of Credit
issued by such Issuing Lender.
26
<PAGE>
"Reinvestment Deferred Amount": with respect to any
Reinvestment
Event, the aggregate Net Cash Proceeds
received by any Group Member in
connection therewith that are not applied
to prepay the Term Loans or reduce the
Revolving Credit Commitments pursuant to
Section 2.12(b) as a result of the
delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale, Purchase Price Refund or
Recovery Event in respect of which the
Borrower has delivered a Reinvestment
Notice.
"Reinvestment Notice": a written notice executed by a
Responsible
Officer stating that no Default or Event of
Default has occurred and is
continuing and that the Borrower (directly
or indirectly through a Wholly Owned
Subsidiary of the Borrower) intends and
expects to use all or a specified
portion of the Net Cash Proceeds of an
Asset Sale, Purchase Price Refund or
Recovery Event to acquire assets useful in
its or such Subsidiary's business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment
Event, the Reinvestment Deferred Amount
relating thereto less any amount
expended on or prior to the relevant
Reinvestment Prepayment Date to acquire
assets useful in the Borrower's
business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment
Event, the earlier of (a) the date
occurring one year after such Reinvestment
Event and (b) the date on which the
Borrower shall have determined not to, or
shall have otherwise ceased to, acquire
assets useful in the Borrower's business
with all or any portion of the relevant
Reinvestment Deferred Amount.
"Related Fund": with respect to any Lender, any fund that (x)
invests in commercial loans and (y) is
managed or advised by the same investment
advisor as such Lender, by such Lender or
an Affiliate of such Lender.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in
reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c)
of ERISA, other than those events as to
which the thirty day notice period is
waived under PBGC Reg. Section 4043.
"Required Lenders": at any time, the holders of more than 50% of
the
sum of (i) the aggregate unpaid principal
amount of the Term Loans then
outstanding and (ii) the Total Revolving
Credit Commitments then in effect or,
if the Revolving Credit Commitments have
been terminated, the Total Revolving
Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other
organizational or governing documents of such
Person, and any law, treaty, rule or
regulation or determination of an
arbitrator or a 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.
27
<PAGE>
"Responsible Officer": as to any Person, the chief executive
officer, president or chief financial
officer of such Person, but in any event,
with respect to financial matters, the
chief financial officer of such Person,
and for purposes of (i) Section 6.7, the
chief legal officer of such Person and
(ii) Section 5.1(a) any Vice President or
other duly authorized officer of such
Person. Unless otherwise qualified, all
references to a "Responsible Officer"
shall refer to a Responsible Officer of
CERI or, after the Migration, the
Borrower.
"Restatement Effective Date": the date on which the conditions
precedent set forth in Section 5.1 have
been satisfied, which date shall be
deemed to be April 30, 2004.
"Restatement Effective Date Equity Issuance": as defined in
Section
4.1.
"Restricted Payments": as defined in Section 7.6.
"Reuters Screen CDOR Page": the display designated as page CDOR
on
the Reuters Monitor Money Rates Service or
other page as may, from time to time,
replace that page on that service for the
purpose of displaying bid quotations
for Bankers' Acceptances accepted by
leading Canadian banks.
"Revolving Credit Commitment": as to any Canadian Revolving
Credit
Lender, its Canadian Revolving Credit
Commitment, and as to any US Revolving
Credit Lender, its US Revolving Credit
Commitment.
"Revolving Credit Facilities": collectively, the Canadian
Revolving
Credit Facility and the US Revolving Credit
Facility.
"Revolving Credit Lender": each Canadian Revolving Credit Lender
and
each US Revolving Credit Lender.
"Revolving Credit Loans": collectively, the Canadian Revolving
Credit Loans and the US Revolving Credit
Loans.
"Revolving Credit Percentage": as to any Canadian Revolving
Credit
Lender at any time, such Lender's Canadian
Revolving Credit Percentage and as to
any US Revolving Credit Lender, such
Lender's US Revolving Credit Percentage.
"Revolving Extensions of Credit": as to any Revolving Credit
Lender
at any time, an amount equal to the sum of
(a) the aggregate principal amount of
all Revolving Credit Loans made by such
Lender then outstanding, (b) such
Lender's Revolving Credit Percentage of the
L/C Obligations then outstanding and
(c) such Lender's Revolving Credit
Percentage of the aggregate principal amount
of Swing Line Loans then outstanding.
"Schedule I Lender": any Lender named on Schedule I to the Bank
Act
(Canada).
"Schedule II Lender": any Lender named on Schedule II or
Schedule
III to the Bank Act (Canada).
"SEC": the Securities and Exchange Commission of the United
States
of America (or successors thereto or an
analogous Governmental Authority).
28
<PAGE>
"Secured Parties": as defined in the Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the Guarantee
and
Collateral Agreement, the Canadian
Guarantee and Collateral Agreement, the
Mortgages, any intellectual property
security agreements or control agreements
that may be required to be delivered
pursuant to the Guarantee and Collateral
Agreement or any other Loan Document and
all other security documents hereafter
delivered to the Administrative Agent
granting a Lien on any Property of any
Person to secure the obligations and
liabilities of any Loan Party under any
Loan Document.
"Seller": as defined in the recitals hereto.
"Senior Subordinated Note Indenture": the Indenture entered into
by
the Borrower and certain of its
Subsidiaries in connection with the issuance of
the Senior Subordinated Notes, together
with all instruments and other
agreements entered into by the Borrower or
such Subsidiaries in connection
therewith, as the same may be amended,
supplemented or otherwise modified from
time to time in accordance with Section
7.9.
"Senior Subordinated Notes": the subordinated notes of the
Borrower
issued from time to time pursuant to the
Senior Subordinated Note Indenture.
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but which is not a Multiemployer
Plan.
"Solvent": with respect to any Person, as of any date of
determination, (a) the amount of the
"present fair saleable value" of the assets
of such Person will, as of such date,
exceed the amount of all "liabilities of
such Person, contingent or otherwise", as
of such date, as such quoted terms are
determined in accordance with applicable
federal and state laws governing
determinations of the insolvency of
debtors, (b) the present fair saleable value
of the assets of such Person will, as of
such date, be greater than the amount
that will be required to pay the liability
of such Person on its debts as such
debts become absolute and matured, (c) such
Person will not have, as of such
date, an unreasonably small amount of
capital with which to conduct its
business, (d) such Person will be able to
pay its debts as they mature and (e)
such Person is not insolvent within the
meaning of any applicable Requirements
of Law relating to bankruptcy, insolvency
or creditor's rights. For purposes of
this definition, (i) "debt": liability on a
"claim", and (ii) "claim": any (x)
right to payment, whether or not such a
right is reduced to judgment,
liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable
remedy for breach of performance if such
breach gives rise to a right to
payment, whether or not such right to an
equitable remedy is reduced to
judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured
or unsecured.
"Specified Change of Control": a "change of control" or similar
event (howsoever defined) as defined in the
Senior Subordinated Note Indenture
and the Kelso Preferred Stock
Documents.
"Specified Hedge Agreement": any Hedge Agreement entered into by
the
Borrower or any Guarantor and any Qualified
Counterparty.
29
<PAGE>
"Subordinated Debt": the Senior Subordinated Notes and any
other
Indebtedness of any Group Member which by
its terms is expressly subordinated to
the Obligations.
"Subsidiary": as to any Person, a corporation, partnership,
limited
liability company or other entity of which
shares of stock or other ownership
interests having ordinary voting power
(other than stock or such other ownership
interests having such power only by reason
of the happening of a contingency) to
elect a majority of the board of directors
or other managers of such
corporation, partnership or other entity
are at the time owned, or the
management of which is otherwise
controlled, directly or indirectly through one
or more intermediaries, or both, by such
Person. Unless otherwise qualified, all
references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of CERI or,
after the Migration, the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other
than
(i) any Excluded Foreign Subsidiary and
(ii) to the extent Capital Holdings
Company is not an Excluded Foreign
Subsidiary, Capital Holdings Company until
the earlier of (x) the Migration or (y) the
date on which it ceases to be an
Inactive Subsidiary.
"Swing Line Commitment": as to any Canadian Swing Line Lender,
its
Canadian Swing Line Commitment, and as to
any US Swing Line Lender, its US Swing
Line Commitment.
"Swing Line Loans": collectively, the US Swing Line Loans and
the
Canadian Swing Line Loans.
"Syndication Agent": as defined in the preamble hereto.
"Syndication Date": the earlier of the date on which the
Arranger
completes the syndication of the Facilities
and 30 days after the Restatement
Effective Date.
"Synthetic Lease Obligations": all monetary obligations of a
Person
under (a) a so-called synthetic,
off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession
of property creating obligations
which do not appear on the balance sheet of
such Person but which, upon the
insolvency or bankruptcy of such Person,
would be characterized as the
Indebtedness of such Person (without regard
to accounting treatment); it being
understood that obligations in respect of
operating leases entered into by any
Group Member in the ordinary course of
business which would not, upon the
insolvency of a Group Member be
characterized as indebtedness of a Group Member,
shall not constitute "Synthetic Lease
Obligations".
"Term Loans": the collective reference to the Tranche B Term
Loans
and Loans made under the Incremental Term
Loan Facility.
"Term Loan Facilities" the Tranche B Term Loan Facilities and
each
other term loan facility under this
Agreement, including the Incremental Term
Loan Facility.
"Term Loan Lenders": the collective reference to the Tranche B
Term
Loan Lenders.
30
<PAGE>
"Term Loan Percentages": with respect to any Lender holding
Tranche
B Term Loans, the Tranche B Term Loan
Percentage of such Lender.
"Term Notes": as defined in Section 2.8(e).
"Title Insurance Company": as defined in Section 5.1(r).
"Total Revolving Credit Commitments": at any time, the
aggregate
amount of the Revolving Credit Commitments
then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate
amount of the Revolving Extensions of
Credit of the Revolving Credit Lenders
outstanding at such time.
"Tranche B Term Loan": as defined in Section 2.1.
"Tranche B Term Loan Commitment": as to any Lender, the
obligation
of such Lender, if any, to make a Tranche B
Term Loan to the Borrower hereunder
in a principal amount not to exceed the
amount set forth under the heading
"Tranche B Term Loan Commitment" opposite
such Lender's name on Schedule 1 to
the Lender Addendum delivered by such
Lender, or, as the case may be, in the
Assignment and Acceptance pursuant to which
such Lender became a party hereto,
as the same may be changed from time to
time pursuant to the terms hereof. The
original aggregate amount of the Tranche B
Term Loan Commitments is
$100,000,000.
"Tranche B Term Loan Facility": as defined in the definition of
"Facility" in this Section 1.1.
"Tranche B Term Loan Lender": each Lender that has a Tranche B
Term
Loan Commitment or is the holder of a
Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
Lender at any time, the percentage which
such Lender's Tranche B Term Loan
Commitment then constitutes of the
aggregate Tranche B Term Loan Commitments
(or, at any time after the Restatement
Effective Date, the percentage which the
aggregate principal amount of such Lender's
Tranche B Term Loans then
outstanding constitutes of the aggregate
principal amount of the Tranche B Term
Loans then outstanding).
"Transferee": as defined in Section 10.14.
"Type": as to any Loan, its nature as a Base Rate Loan, a
Eurodollar
Loan, a Canadian Prime Rate Loan or BA
Equivalent Loan.
"UCC": the Uniform Commercial Code, as in effect from time to
time
in any jurisdiction.
"US Base Rate in Canada": at any time, the greater of (i) the
rate
of interest per annum equal to the rate at
which the principal office of the
Canadian Agent in Toronto, Ontario,
announces from time to time as the reference
rate of interest for loans in Dollars to
its Canadian borrowers, adjusted
automatically with each change in such rate
without the necessity of any
31
<PAGE>
notice to CERI, the Borrower or any other
Person, and (ii) the Federal Funds
Effective Rate (converted to a rate based
on based on a 365 or 366 day period,
as the case may be), in effect from time to
time, plus .50% per annum. Any
change in the US Base Rate in Canada shall
be effective as of the opening of
business on the day the change becomes
effective generally.
"US Issuing Lender": any US Revolving Credit Lender from time
to
time designated by the Borrower as a US
Issuing Lender with the consent of such
US Revolving Credit Lender and the
Administrative Agent.
"US L/C Commitment": $45,000,000.
"US L/C Obligations": at any time, an amount equal to the sum of
(a)
the aggregate then undrawn and unexpired
amount of the then outstanding US
Letters of Credit and (b) the aggregate
amount of drawings under US Letters of
Credit that have not then been reimbursed
pursuant to Section 3.5.
"US L/C Participants": with respect to any US Letter of Credit,
the
collective reference to the US Revolving
Credit Lenders other than the US
Issuing Lender that issued such US Letter
of Credit.
"US Letters of Credit": as defined in Section 3.1(a).
"US Refunded Swing Line Loans": as defined in Section 2.7(b).
"US Refunding Date": as defined in Section 2.7(c).
"US Reimbursement Obligations": the Reimbursement Obligations
owing
by the Borrower.
"US Revolving Credit Commitment": as to any Lender, the
obligation
of such Lender, if any, to make US
Revolving Credit Loans and participate in US
Swing Line Loans and US Letters of Credit,
in an aggregate principal and/or face
amount not to exceed the amount set forth
under the heading "US Revolving Credit
Commitment" opposite such Lender's name on
Schedule 1 to the Lender Addendum
delivered by such Lender, or, as the case
may be, in the Assignment and
Acceptance pursuant to which such Lender
became a party hereto, as the same may
be changed from time to time pursuant to
the terms hereof. The original
aggregate amount of the aggregate US
Revolving Credit Commitments is
$45,000,000.
"US Revolving Credit Commitment Period": the period from and
including the Restatement Effective Date to
the US Revolving Credit Termination
Date.
"US Revolving Credit Facility": as defined in the definition of
"Facility" in this Section 1.1.
"US Revolving Credit Lender": each Lender that has a US
Revolving
Credit Commitment or that is the holder of
US Revolving Credit Loans.
"US Revolving Credit Loans": as defined in Section 2.4.
32
<PAGE>
"US Revolving Credit Note": as defined in Section 2.8.
"US Revolving Credit Percentage": as to any US Revolving Credit
Lender at any time, the percentage which
such Lender's US Revolving Credit
Commitment then constitutes of the
aggregate US Revolving Credit Commitments
(or, at any time after the US Revolving
Credit Commitments shall have expired or
terminated, the percentage which the
aggregate amount of such Lender's US
Revolving Extensions of Credit then
outstanding constitutes of the amount of the
aggregate US Revolving Extensions of Credit
then outstanding).
"US Revolving Credit Termination Date": the fifth anniversary of
the
Restatement Effective Date.
"US Revolving Extensions of Credit": as to any US Revolving
Credit
Lender at any time, an amount equal to the
sum of (a) the aggregate principal
amount of all US Revolving Credit Loans
made by such Lender then outstanding,
(b) such Lender's US Revolving Credit
Percentage of the US L/C Obligations then
outstanding and (c) such Lender's US
Revolving Credit Percentage of the
aggregate principal amount of US Swing Line
Loans then outstanding.
"US Swing Line Commitment": the obligation of the US Swing Line
Lender to make US Swing Line Loans pursuant
to Section 2.6 in an aggregate
principal amount at any one time
outstanding not to exceed $5,000,000.
"US Swing Line Lender": each Lender that has a US Swing Line
Commitment or that is a holder of US Swing
Line Loans.
"US Swing Line Loans": as defined in Section 2.6.
"US Swing Line Note": as defined in Section 2.8(e).
"US Swing Line Participation Amount": as defined in Section
2.7(c).
"Wholly Owned Subsidiary": as to any Person, any other Person all
of
the Capital Stock of which (other than
directors' qualifying shares required by
law) is owned by such Person directly
and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that
is a Wholly Owned Subsidiary of the
Borrower.
1.2 Other
Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in
this Agreement shall have the defined
meanings when used in the other Loan
Documents or any certificate or other
document made or delivered pursuant hereto
or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or
delivered pursuant hereto or thereto,
accounting terms relating to any Group
Member not defined in Section 1.1 and
accounting terms partly defined in Section
1.1, to the extent not defined, shall
have the respective meanings given to them
under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement
shall refer to this Agreement as a
whole and not to any particular
33
<PAGE>
provision of this Agreement, and Section,
Schedule and Exhibit references are to
this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural
forms of such terms.
(e) All calculations of financial ratios set forth in Section
7.1
and the calculation of the Consolidated
Leverage Ratio for purposes of
determining the Applicable Margin shall be
calculated to the same number of
decimal places as the relevant ratios are
expressed in and shall be rounded
upward if the number in the decimal place
immediately following the last
calculated decimal place is five or
greater. For example, if the relevant ratio
is to be calculated to the hundredth
decimal place and the calculation of the
ratio is 5.126, the ratio will be rounded
up to 5.13.
(f) The expressions "payment in full," "paid in full" and any
other
similar terms or phrases when used herein
with respect to the Obligations shall
mean the payment in full, in immediately
available funds, of all of the
Obligations.
1.3
Interrelationship with the Original Credit Agreement.
(a) As stated in the preamble hereof, this Agreement is intended
to
amend and restate the provisions of the
Original Credit Agreement and,
notwithstanding any amendment and
restatement of Notes as of the Restatement
Effective Date, except as expressly
modified herein, (x) all of the terms and
provisions of the Original Credit Agreement
and the other Loan Documents shall
continue to apply for the period prior to
the Restatement Effective Date,
including any determinations of payment
dates, interest rates, Events of Default
or any amount that may be payable to the
Administrative Agent or the Original
Lenders (or their assignees or replacements
hereunder) to but excluding the
Restatement Effective Date, and (y) the
obligations under the Original Credit
Agreement and the other Loan Documents
shall continue to be paid or prepaid on
or prior to the Restatement Effective Date,
and shall from and after the
Restatement Effective Date continue to be
owing and be subject to the terms of
this Agreement to the extent accrued or
arising prior to the Restatement
Effective Date or otherwise relating to the
period prior to the Restatement
Effective Date. All references in any Loan
Documents to (i) the "Credit
Facility" or the "Credit Agreement" shall
be deemed to include references to
this Agreement and (ii) the "Lenders" or a
"Lender" or to the "Administrative
Agent" shall mean such terms as defined in
this Agreement. As to all periods
occurring on or after the Restatement
Effective Date, all of the covenants set
forth in the Original Credit Agreement
shall be of no further force and effect,
it being understood that all obligations of
the Borrower under the Original
Credit Agreement shall be governed by this
Agreement from and after the
Restatement Effective Date.
(b) The Borrower, the Agents and the Lenders acknowledge and
agree
that all principal, interest, fees, costs,
reimbursable expenses and
indemnification obligations accruing or
arising under or in connection with the
Original Credit Agreement and the other
Loan Documents which remain unpaid and
outstanding as of the Restatement Effective
Date shall be and remain outstanding
and payable as an obligation under this
Agreement and the other Loan Documents;
provided that no Lender hereunder which was
not an Original Lender shall be
liable for any obligation or
indemnification of any of the Original Lenders
under the Original Credit Agreement.
34
<PAGE>
1.4 Confirmation
of Existing Obligations. The Borrower hereby
reaffirms and admits the validity and
enforceability of this Agreement and the
other Loan Documents and all of its
obligations hereunder and thereunder and
agrees and admits that, as of the
Restatement Effective Date, it has no defenses
to, or offsets or counterclaims against,
any of its obligations to the Secured
Parties under the Loan Documents of any
kind whatsoever.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Tranche B
Term Loan Commitments. Subject to the terms and
conditions hereof, the Tranche B Term Loan
Lenders severally agree to purchase
term loans (each, a "Tranche B Term Loan")
from the Original Lenders on the
Restatement Effective Date in an amount for
each Tranche B Term Loan Lender not
to exceed the amount of the Tranche B Term
Loan Commitment of such Lender. The
Term Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to
the Administrative Agent in
accordance with Sections 2.2 and 2.13.
2.2 Procedure
for Tranche B Term Loan Assignment. The Borrower
shall deliver to the Administrative Agent a
written notice (which written notice
must be received by the Administrative
Agent prior to 10:00 A.M., New York City
time, one Business Day prior to the
anticipated Restatement Effective Date)
requesting that the Tranche B Term Loan
Lenders purchase the Tranche B Term
Loans on the Restatement Effective Date and
specifying the amount of Tranche B
Term Loans available for purchase. The
Tranche B Term Loans purchased by the
Tranche B Term Loan Lenders on the
Restatement Effective Date shall initially be
Base Rate Loans, and no Tranche B Term Loan
may be converted into or continued
as a Eurodollar Loan prior to the
Syndication Date. Upon receipt of such notice
the Administrative Agent shall promptly
notify each Tranche B Term Loan Lender
thereof. Not later than 12:00 Noon, New
York City time, on the Restatement
Effective Date each Tranche B Term Loan
Lender shall make available to the
Administrative Agent at the Funding Office
an amount in immediately available
funds equal to the Tranche B Term Loan or
Tranche B Term Loans to be purchased
by such Tranche B Term Loan Lender.
2.3 Repayment of
Term Loans. The Tranche B Term Loan of each
Tranche B Term Loan Lender shall mature in
28 consecutive quarterly
installments, commencing on June 30, 2004,
each of which shall be in an amount
equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount
set forth below opposite such
installment:
<TABLE>
<CAPTION>
Installment
Principal Amount
-----------
----------------
<S>
<C>
June 30, 2004
$ 250,000
September 30, 2004
$ 250,000
December 31, 2004
$ 250,000
March 31, 2005
$ 250,000
June 30, 2005
$ 250,000
September 30, 2005
$ 250,000
December 31, 2005
$ 250,000
March 31, 2006
$ 250,000
June 30, 2006
$ 250,000
September 30, 2006
$ 250,000
December 31, 2006
$ 250,000
</TABLE>
35
<PAGE>
<TABLE>
<CAPTION>
Installment
Principal Amount
-----------
----------------
<S>
<C>
March 31, 2007
$ 250,000
June 30, 2007
$ 250,000
September 30, 2007
$ 250,000
December 31, 2007
$ 250,000
March 31, 2008
$ 250,000
June 30, 2008
$ 250,000
September 30, 2008
$ 250,000
December 31, 2008
$ 250,000
March 31, 2009
$ 250,000
June 30, 2009
$ 250,000
September 30, 2009
$ 250,000
December 31, 2009
$ 250,000
March 31, 2010
$ 250,000
June 30, 2010
$23,500,000
September 30, 2010
$23,500,000
December 31, 2010
$23,500,000
March 31, 2011
$23,500,000
</TABLE>
2.4 Revolving
Credit Commitments. (a) Subject to the terms and
conditions hereof, the US Revolving Credit
Lenders severally agree to make
revolving credit loans ("US Revolving
Credit Loans") to the Borrower from time
to time during the US Revolving Credit
Commitment Period in an aggregate
principal amount at any one time
outstanding for each US Revolving Credit Lender
which, when added to such Lender's US
Revolving Credit Percentage of the sum of
(i) the US L/C Obligations then outstanding
and (ii) the aggregate principal
amount of the US Swing Line Loans then
outstanding, does not exceed the amount
of such Lender's US Revolving Credit
Commitment. During the US Revolving Credit
Commitment Period the Borrower may use the
US Revolving Credit Commitments by
borrowing, prepaying (in whole or in part),
and reborrowing, the US Revolving
Credit Loans, all in accordance with the
terms and conditions hereof. The US
Revolving Credit Loans may only be made in
Dollars and from time to time be
Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified
to the Administrative Agent in accordance
with Sections 2.5 and 2.13, provided
that no US Revolving Credit Loan shall be
made as a Eurodollar Loan after the
day that is one month prior to the US
Revolving Credit Termination Date.
(b) The Borrower shall repay all outstanding US Revolving
Credit
Loans on the US Revolving Credit
Termination Date.
(c) Subject to the terms and conditions hereof, the Canadian
Revolving Credit Lenders severally agree to
make revolving credit loans
("Canadian Revolving Credit Loans") to CERI
from time to time during the
Canadian Revolving Credit Commitment Period
in an aggregate principal amount at
any one time outstanding for each Canadian
Revolving Credit Lender which, when
added to such Lender's Canadian Revolving
Credit Percentage of the sum of (i)
Canadian L/C Obligations then outstanding
and (ii) the aggregate principal
amount of the Canadian Swing Line Loans
then outstanding, does not exceed the
amount of such Lender's Canadian Revolving
Credit Commitment. During the
Canadian Revolving Credit Commitment
Period, CERI may use the Canadian Revolving
Credit Commitments by borrowing,
prepaying
36
<PAGE>
(in whole or in part), and reborrowing, the
Canadian Revolving Credit Loans, all
in accordance with the terms and conditions
hereof. The Canadian Revolving
Credit Loans may be made from time to time
by way of (i) Bankers' Acceptance or
Canadian Prime Rate Loans, in Canadian
Dollars only or (ii) Eurodollar Loans or
Base Rate Loans, in Dollars only, as
determined by CERI and notified to the
Administrative Agent and the Canadian Agent
in accordance with Sections 2.5 and
2.13, provided that no Canadian Revolving
Credit Loan shall be made as a
Eurodollar Loan or a Bankers' Acceptance
after the day that is one month prior
to the Canadian Revolving Credit
Termination Date.
(d) CERI shall repay all outstanding Canadian Revolving Credit
Loans
on the Canadian Revolving Credit
Termination Date.
2.5 Procedure
for Revolving Credit Borrowing(a) The Borrower
may borrow under the US Revolving Credit
Commitments on any Business Day during
the US Revolving Credit Commitment Period,
provided that the Borrower shall
deliver to the Administrative Agent a
Borrowing Notice (which Borrowing Notice
must be received by the Administrative
Agent prior to 12:00 Noon, New York City
time, (a) three Business Days prior to the
requested Borrowing Date, in the case
of Eurodollar Loans, or (b) one Business
Day prior to the requested Borrowing
Date, in the case of Base Rate Loans). Any
US Revolving Credit Loans made on the
Restatement Effective Date shall initially
be Base Rate Loans, and no US
Revolving Credit Loan may be made as,
converted into or continued as a
Eurodollar Loan having an Interest Period
in excess of one month prior to the
Syndication Date. Each borrowing of US
Revolving Credit Loans under the US
Revolving Credit Commitments shall be in an
amount equal to (x) in the case of
Base Rate Loans, $1,000,000 or a whole
multiple thereof (or, if the then
aggregate Available US Revolving Credit
Commitments are less than $1,000,000,
such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess
thereof; provided, that the US Swing Line
Lender may request, on behalf of the
Borrower, borrowings of Base Rate Loans
under the US Revolving Credit Commitments
in other amounts pursuant to Section
2.7. Upon receipt of any such Borrowing
Notice from the Borrower, the
Administrative Agent shall promptly notify
each US Revolving Credit Lender
thereof. Each US Revolving Credit Lender
will make its US Revolving Credit
Percentage of the amount of each borrowing
of US Revolving Credit Loans
available to the Administrative Agent for
the account of the Borrower at the
Funding Office prior to 12:00 Noon, New
York City time, on the Borrowing Date
requested by the Borrower in funds
immediately available to the Administrative
Agent. Such borrowing will then be made
available to the Borrower by the
Administrative Agent in like funds as
received by the Administrative Agent.
(b) CERI may borrow under the Canadian Revolving Credit
Commitments
on any Business Day during the Canadian
Revolving Credit Commitment Period,
provided, that CERI shall deliver to the
Canadian Agent a Borrowing Notice
(which Borrowing Notice must be received by
the Canadian Agent prior to 12:00
Noon, Toronto time, (i) three Business Days
prior to the requested Borrowing
Date in the case of Eurodollar Loans, or
(ii) one Business Day prior to the
requested Borrowing Date in the case of
Base Rate Loans, Canadian Prime Rate
Loans, or Bankers' Acceptances). Any
Canadian Revolving Credit Loans made on the
Restatement Effective Date shall initially
be Base Rate Loans or Canadian Prime
Rate Loans. Each borrowing of Canadian
Revolving Credit Loans under the Canadian
Revolving Credit Commitments shall be in an
amount equal to (x) in the case of
Base Rate Loans or Canadian Prime Rate
Loans, $500,000 or Cdn. $500,000 or a
whole multiple of $100,000 or Cdn.
37
<PAGE>
$100,000 in excess thereof (or, if the then
aggregate Available Canadian
Revolving Credit Commitments are less than
Cdn. $100,000, (or, if applicable,
the Dollar Equivalent thereof) such lesser
amount); (y) in the case of
Eurodollar Loans, $500,000 or a whole
multiple of $100,000 in excess thereof and
(z) in the case of Bankers' Acceptance,
Cdn. $500,000 and a whole multiple of
Cdn. $100,000 in excess thereof; provided,
that the Canadian Swing Line Lender
may request, on behalf of CERI, borrowings
of Base Rate Loans or Canadian Prime
Rate Loans under the Canadian Revolving
Credit Commitments in other amounts
pursuant to Section 2.7. Upon receipt of
any such Borrowing Notice from the
Borrower, the Canadian Agent shall promptly
notify each Canadian Revolving
Credit Lender thereof. Each Canadian
Revolving Credit Lender will make its
Canadian Revolving Credit Percentage of the
amount of each borrowing of Canadian
Revolving Credit Loans available to the
Canadian Agent for the account of CERI
at the Canadian Funding Office prior to
12:00 Noon, Toronto time, on the
Borrowing Date requested by the Borrower in
funds immediately available to the
Canadian Agent. Such borrowing will then be
made available to CERI by the
Canadian Agent in like funds as received by
the Canadian Agent.
(c) CERI hereby designates the Borrower as its representative
and
agent on its behalf for the purposes of
issuing Borrowing Notices and notices of
conversion or continuation, giving
instructions with respect to the disbursement
of the proceeds of the Loans, selecting
interest rate options, giving and
receiving all other notices and consents
hereunder or under any of the other
Loan Documents and taking all other actions
(including in respect of compliance
with covenants) on behalf of CERI under the
Loan Documents. The Administrative
Agent, the Canadian Agent and each Lender
may regard any notice or other
communication pursuant to any Loan Document
from the Borrower as a notice or
communication from CERI and the Borrower.
Each warranty, covenant, agreement and
undertaking made on its behalf by the
Borrower shall be deemed for all purposes
to have been made by CERI and shall be
binding upon and enforceable against CERI
to the same extent as it if the same had
been made directly by CERI.
(d) Bankers' Acceptances
(i) Discount
Rate. On each Borrowing Date on which Bankers'
Acceptances are to be accepted, the Canadian Agent shall advise
CERI as to
the
Canadian Agent's determination of the applicable Discount Rate for
the
Bankers'
Acceptances which any of the Canadian Revolving Credit Lenders
have
agreed to purchase.
(ii) Purchase. Each
Canadian Revolving Credit Lender shall
purchase a
Bankers' Acceptance accepted by it, and CERI shall sell such
Bankers'
Acceptance at the applicable Discount Rate. The relevant
Canadian
Revolving
Credit Lender shall provide to the Canadian Agent on the
Borrowing
Date the Discount Proceeds less the Acceptance Fee payable by
CERI with
respect to the Bankers' Acceptance.
(iii) Sale. Each Canadian Revolving Credit Lender may from
time to
time hold, sell, rediscount or otherwise dispose of any or all
Bankers'
Acceptances accepted and purchased by it.
(iv) Power of Attorney
for the Execution of Bankers'
Acceptances. To facilitate the issuance of Bankers' Acceptances,
CERI
hereby
appoints each Canadian
38
<PAGE>
Revolving
Credit Lender as its attorney to sign and endorse on its
behalf,
in
handwriting or by facsimile or mechanical signature as and when
deemed
necessary
by such Canadian Revolving Credit Lender, blank forms of
Bankers'
Acceptances. In this respect, it is each Canadian Revolving
Credit
Lender's responsibility to maintain an adequate supply of blank
forms of
Bankers' Acceptances for acceptance under this Agreement. CERI
recognizes
and agrees that all Bankers' Acceptances signed and/or endorsed
on its
behalf by a Canadian Revolving Credit Lender shall bind CERI as
fully and
effectually as if signed in the handwriting of and duly issued
by the
proper signing officers of CERI. Each Canadian Revolving Credit
Lender is
hereby authorized to issue such Bankers' Acceptance endorsed in
blank in
such face amounts as may be determined by such Canadian
Revolving
Credit
Lender; provided that the aggregate amount thereof is equal to
the
aggregate
amount of Bankers' Acceptances required to be accepted and
purchased
by such Canadian Revolving Credit Lender. No Canadian Revolving
Credit
Lender shall be liable for any damage, loss or other claim
arising
by reason
of any loss or improper use of any such instrument except the
gross
negligence or willful misconduct of the Canadian Revolving
Credit
Lender or
its officers, employees, agents or representatives. Each
Canadian
Revolving Credit Lender shall maintain a record with respect to
Bankers'
Acceptances held by it in blank hereunder, voided by it for any
reason,
accepted and purchased by it hereunder, and cancelled at their
respective
maturities. Each Canadian Revolving Credit Lender agrees to
provide
such records to CERI at CERI's expense upon request.
(v) Execution.
Drafts drawn by CERI to be accepted as
Bankers'
Acceptances shall be signed by a duly authorized officer or
officers
of CERI or by its attorneys including attorneys appointed
pursuant
to this Section 2.5. Notwithstanding that any Person whose
signature
appears on any Bankers' Acceptance may no longer be an
authorized
signatory for CERI at the time of issuance of a Bankers'
Acceptance, that signature shall nevertheless be valid and
sufficient for
all
purposes as if the authority had remained in force at the time
of
issuance
and any Bankers' Acceptance so signed shall be binding on CERI.
(vi) Issuance. The
Canadian Agent, promptly following receipt
of a
Borrowing Notice for Bankers' Acceptances, shall advise the
Canadian
Revolving
Credit Lenders of the notice and shall advise each Canadian
Revolving
Credit Lender of the face amount of Bankers' Acceptances to be
accepted
by it and the applicable Interest Period (which shall be
identical
for all Canadian Revolving Credit Lenders). The aggregate face
amount of
Bankers' Acceptances to be accepted by a Canadian Revolving
Credit
Lender shall be determined by the Canadian Agent by reference
to
that
Canadian Revolving Credit Lender's Canadian Revolving Credit
Percentage
of the issue of Bankers' Acceptances, except that, if the face
amount of
a Bankers' Acceptance which would otherwise be accepted by a
Canadian
Revolving Credit Lender would not be Cdn. $100,000 or a whole
multiple
thereof, the face amount shall be increased or reduced by the
Canadian
Agent in its sole discretion to Cdn. $100,000, or the nearest
whole
multiple of that amount, as appropriate; provided that after
such
issuance,
no Canadian Revolving Credit Lender shall have aggregate
outstanding Canadian Revolving Credit Loans in excess of its
Canadian
Revolving
Credit Commitment.
39
<PAGE>
(vii) Waiver of
Presentment and Other Conditions. CERI waives
presentment for payment and any other defense to payment of any
amounts
due to a
Canadian Revolving Credit Lender in respect of a Bankers'
Acceptance
accepted and purchased by it pursuant to this Agreement which
might
exist solely by reason of the Bankers' Acceptance being held, at
the
maturity
thereof, by the Lender in its own right and CERI agrees not to
claim any
days of grace if the Lender as holder sues CERI on the Bankers'
Acceptance
for payment of the amount payable by CERI thereunder.
(viii) BA Equivalent Loans by Non BA Lenders. Whenever CERI
requests a
Canadian Revolving Credit Loan under this Agreement by way of
Bankers'
Acceptances, each Non BA Lender shall, in lieu of accepting a
Bankers'
Acceptance, make a BA Equivalent Loan in an amount equal to the
Non BA
Lender's Ratable Portion of the Canadian Revolving Credit Loan.
(ix) Terms
Applicable to Discount Notes. As set out in the
definition
of Bankers' Acceptances, that term includes Discount Notes and
all terms
of this Agreement applicable to Bankers' Acceptances shall
apply
equally to
Discount Notes evidencing BA Equivalent Loans with such changes
as may in
the context be necessary. For greater certainty:
(a) the
term of a Discount Note shall be the same as the
Interest Period for Bankers' Acceptances accepted and purchased
on
the same Borrowing Date in respect of the same Canadian
Revolving
Credit Loan;
(b) an
acceptance fee will be payable in respect of a
Discount Note and shall be calculated at the same rate and in
the
same manner as the Acceptance Fee in respect of a Bankers'
Acceptance; and
(c) the
Discount Rate applicable to a Discount Note shall
be the Discount Rate applicable to Bankers' Acceptances accepted
by
the Canadian Agent (as Lender) on the same Borrowing Date, as
the
case may be, in respect of the same Canadian Revolving Credit
Loan.
(x)
Depository Bills and Notes Act. At the option of CERI
and any
Lender, Bankers' Acceptances under this Agreement to be
accepted
by that
Lender may be issued in the form of depository bills for
deposit
with The
Canadian Depository for Securities Limited pursuant to the
Depository
Bills and Notes Act (Canada). All depository bills so issued
shall be
governed by the provisions of this Section 2.5.
(xi) Prepayments
and Mandatory Payments. If at any time any
Bankers'
Acceptances are to be paid prior to their maturity, CERI shall
be
required
to deposit the amount of such prepayment in a cash collateral
account
with the Canadian Agent until the date of maturity of those
Bankers'
Acceptances. The cash collateral account shall be under the
sole
control of
the Canadian Agent. Except as contemplated by this Section 2.5,
neither
CERI nor any Person claiming on behalf of CERI shall have any
right to
any of the cash in the cash collateral account. The Canadian
Agent
shall apply the cash held in the cash collateral account to the
face
amount of
those Bankers'
40
<PAGE>
Acceptances at maturity whereupon any cash remaining in the
cash
collateral
account shall be released by the Canadian Agent to CERI.
2.6 Swing Line
Commitments(a) Subject to the terms and conditions
hereof, the US Swing Line Lender agrees
that, during the US Revolving Credit
Commitment Period, it will make available
to the Borrower in the form of swing
line loans ("US Swing Line Loans") a
portion of the credit otherwise available
to the Borrower under the US Revolving
Credit Commitments; provided, that (i)
the aggregate principal amount of US Swing
Line Loans outstanding at any time
shall not exceed the US Swing Line
Commitment then in effect (notwithstanding
that the US Swing Line Loans outstanding at
any time, when aggregated with the
US Swing Line Lender's other outstanding US
Revolving Credit Loans hereunder,
may exceed the US Swing Line Commitment
then in effect or such US Swing Line
Lender's US Revolving Credit Commitment
then in effect) and (ii) the Borrower
shall not request, and the US Swing Line
Lender shall not make, any US Swing
Line Loan if, after giving effect to the
making of such US Swing Line Loan, the
aggregate amount of the Available US
Revolving Credit Commitments would be less
than zero. During the US Revolving Credit
Commitment Period, the Borrower may
use the US Swing Line Commitment by
borrowing, repaying and reborrowing, all in
accordance with the terms and conditions
hereof. US Swing Line Loans shall be
Base Rate Loans only.
(b) The Borrower shall repay all outstanding US Swing Line Loans
on
the US Revolving Credit Termination
Date.
(c) Subject to the terms and conditions hereof, the Canadian
Swing
Line Lender agrees that, during the
Canadian Revolving Credit Commitment Period,
it will make available to CERI in the form
of swing line loans ("Canadian Swing
Line Loans") a portion of the credit
otherwise available to CERI under the
Canadian Revolving Credit Commitments;
provided, that (i) the aggregate
principal amount of Canadian Swing Line
Loans outstanding at any time shall not
exceed the Canadian Swing Line Commitment
then in effect (notwithstanding that
the Canadian Swing Line Loans outstanding
at any time, when aggregated with the
Canadian Swing Line Lender's other
outstanding Canadian Revolving Credit Loans
hereunder, may exceed the Canadian Swing
Line Commitment then in effect or such
Canadian Swing Line Lender's Canadian
Revolving Credit Commitment then in
effect) and (ii) CERI shall not request,
and the Canadian Swing Line Lender
shall not make, any Canadian Swing Line
Loan if, after giving effect to the
making of such Canadian Swing Line Loan,
the aggregate amount of the Available
Canadian Revolving Credit Commitments would
be less than zero. During the
Canadian Revolving Credit Commitment
Period, CERI may use the Canadian Swing
Line Commitment by borrowing, repaying and
reborrowing, all in accordance with
the terms and conditions hereof. Swing Line
Loans shall be Canadian Prime Rate
Loans only.
(d) CERI shall repay all outstanding Canadian Swing Line Loans
on
the Canadian Revolving Credit Termination
Date.
2.7 Procedure
for US Swing Line Borrowing and Canadian Swing Line
Borrowing; Refunding of US Swing Line Loans
and Canadian Swing Line Loans.
(a) The Borrower may borrow under the US Swing Line Commitment
on
any Business Day during the US Revolving
Credit Commitment Period, provided, the
Borrower shall
41
<PAGE>
give the US Swing Line Lender irrevocable
telephonic notice confirmed promptly
in writing (which telephonic notice must be
received by the US Swing Line Lender
not later than 1:00 P.M., New York City
time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed
and (ii) the requested Borrowing Date.
Each borrowing under the US Swing Line
Commitment shall be in an amount equal to
$500,000 or a whole multiple of $100,000 in
excess thereof. Not later than 3:00
P.M., New York City time, on the Borrowing
Date specified in the borrowing
notice in respect of any US Swing Line
Loan, the US Swing Line Lender shall make
available to the Administrative Agent at
the Funding Office an amount in
immediately available funds equal to the
amount of such US Swing Line Loan. The
Administrative Agent shall make the
proceeds of such US Swing Line Loan
available to the Borrower on such Borrowing
Date in like funds as received by
the Administrative Agent.
(b) The US Swing Line Lender, at any time and from time to time
in
its sole and absolute discretion may, on
behalf of the Borrower (which hereby
irrevocably directs the US Swing Line
Lender to act on its behalf), on one
Business Day's notice given by the US Swing
Line Lender no later than 12:00
Noon, New York City time, request each US
Revolving Credit Lender to make, and
each US Revolving Credit Lender hereby
agrees to make, a US Revolving Credit
Loan (which shall initially be a Base Rate
Loan), in an amount equal to such US
Revolving Credit Lender's US Revolving
Credit Percentage of the aggregate amount
of the US Swing Line Loans (the "US
Refunded Swing Line Loans") outstanding on
the date of such notice, to repay the US
Swing Line Lender. Each US Revolving
Credit Lender shall make the amount of such
US Revolving Credit Loan available
to the Administrative Agent at the Funding
Office in immediately available
funds, not later than 10:00 A.M., New York
City time, one Business Day after the
date of such notice. The proceeds of such
US Revolving Credit Loans shall be
made immediately available by the
Administrative Agent to the US Swing Line
Lender for application by the US Swing Line
Lender to the repayment of the US
Refunded Swing Line Loans. The Borrower
irrevocably authorizes the US Swing Line
Lender to charge the Borrower's accounts
with the Administrative Agent (up to
the amount available in each such account)
in order to immediately pay the
amount of such US Refunded Swing Line Loans
to the extent amounts received from
the US Revolving Credit Lenders are not
sufficient to repay in full such US
Refunded Swing Line Loans.
(c) If prior to the
time a US Revolving Credit Loan would have
otherwise been made pursuant to Section
2.7(b), one of the events described in
Section 8(f) shall have occurred and be
continuing with respect to the Borrower,
or if for any other reason, as determined
by the US Swing Line Lender in its
sole discretion, US Revolving Credit Loans
may not be made as contemplated by
Section 2.7(b), each US Revolving Credit
Lender shall, on the date such US
Revolving Credit Loan was to have been made
pursuant to the notice referred to
in Section 2.7(b) (the "US Refunding
Date"), purchase for cash an undivided
participating interest in the then
outstanding US Swing Line Loans by paying to
the US Swing Line Lender an amount (the "US
Swing Line Participation Amount")
equal to (i) such US Revolving Credit
Lender's US Revolving Credit Percentage
times (ii) the sum of the aggregate
principal amount of US Swing Line Loans then
outstanding which were to have been repaid
with such US Revolving Credit Loans.
(d) Whenever, at any time after the US Swing Line Lender has
received from any US Revolving Credit
Lender such Lender's US Swing Line
Participation Amount, the US Swing Line
Lender receives any payment on account
of the US Swing Line Loans, the US Swing
Line
42
<PAGE>
Lender will distribute to such Lender its
US Swing Line Participation Amount
(appropriately adjusted, in the case of
interest payments, to reflect the period
of time during which such Lender's
participating interest was outstanding and
funded and, in the case of principal and
interest payments, to reflect such
Lender's pro rata portion of such payment
if such payment is not sufficient to
pay the principal of and interest on all US
Swing Line Loans then due);
provided, however, that in the event that
such payment received by the US Swing
Line Lender is required to be returned,
such US Revolving Credit Lender will
return to the US Swing Line Lender any
portion thereof previously distributed to
it by the US Swing Line Lender.
(e) Each US Revolving Credit Lender's obligation to make the
Loans
referred to in Section 2.7(b) and to
purchase participating interests pursuant
to Section 2.7(c) 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 US Revolving Credit
Lender or the Borrower may have against the
US Swing Line Lender, the Borrower
or any other Person for any reason
whatsoever; (ii) the occurrence or
continuance of a Default or an Event of
Default or the failure to satisfy any of
the other conditions specified in Section
5; (iii) any adverse change in the
condition (financial or otherwise) of the
Borrower; (iv) any breach of this
Agreement or any other Loan Document by the
Borrower, any other Loan Party or
any other US Revolving Credit Lender; or
(v) any other circumstance, happening
or event whatsoever, whether or not similar
to any of the foregoing.
(f) CERI may borrow under the Canadian Swing Line Commitment on
any
Business Day during the Canadian Revolving
Credit Commitment Period, provided,
CERI shall give the Canadian Swing Line
Lender irrevocable telephonic notice
confirmed promptly in writing (which
telephonic notice must be received by the
Canadian Swing Line Lender not later than
1:00 P.M., Toronto time, on the
proposed Borrowing Date), specifying (i)
the amount to be borrowed and (ii) the
requested Borrowing Date. Each borrowing
under the Canadian Swing Line
Commitment shall be in an amount equal to
Cdn. $500,000 or a whole multiple of
Cdn. $100,000 in excess thereof. Not later
than 3:00 P.M., Toronto time, on the
Borrowing Date specified in the borrowing
notice in respect of any Canadian
Swing Line Loan, the Canadian Swing Line
Lender shall make available to the
Canadian Agent at the Canadian Funding
Office an amount in immediately available
funds equal to the amount of such Canadian
Swing Line Loan. The Canadian Agent
shall make the proceeds of such Canadian
Swing Line Loan available to CERI on
such Borrowing Date in like funds as
received by the Canadian Agent.
Notwithstanding the foregoing, the Canadian
Swing Line Loans may be borrowed
pursuant to an overdraft arrangement on
terms acceptable to the Canadian Swing
Line Lender.
(g) The Canadian Swing Line Lender, at any time and from time
to
time in its sole and absolute discretion
may, on behalf of CERI (which hereby
irrevocably directs the Canadian Swing Line
Lender to act on its behalf), on one
Business Day's notice given by the Canadian
Swing Line Lender to the Canadian
Agent no later than 12:00 Noon, Toronto
time, request each Canadian Revolving
Credit Lender to make, and each Canadian
Revolving Credit Lender hereby agrees
to make, a Canadian Revolving Credit Loan
(which shall initially be a Canadian
Prime Rate Loan), in an amount equal to
such Canadian Revolving Credit Lender's
Canadian Revolving Credit Percentage of the
aggregate amount of the Canadian
Swing Line Loans (the "Canadian Refunded
Swing Line Loans") outstanding on the
date of such notice, to repay the Canadian
Swing Line Lender. Each Canadian
Revolving Credit Lender shall make the
amount of such Canadian Revolving Credit
Loan available to the Canadian Agent at
the
43
<PAGE>
Canadian Funding Office in immediately
available funds, not later than 10:00
A.M., Toronto time, one Business Day after
the date of such notice. The proceeds
of such Canadian Revolving Credit Loans
shall be made immediately available by
the Canadian Agent to the Canadian Swing
Line Lender for application by the
Canadian Swing Line Lender to the repayment
of the Canadian Refunded Swing Line
Loans. CERI irrevocably authorizes the
Canadian Swing Line Lender to charge
CERI's accounts with the Canadian Agent (up
to the amount available in each such
account) in order to immediately pay the
amount of such Canadian Refunded Swing
Line Loans to the extent amounts received
from the Canadian Revolving Credit
Lenders are not sufficient to repay in full
such Canadian Refunded Swing Line
Loans.
(h) If prior to the time a Canadian Revolving Credit Loan would
have
otherwise been made pursuant to Section
2.7(g), one of the events described in
Section 8(f) shall have occurred and be
continuing with respect to CERI, or if
for any other reason, as determined by the
Canadian Swing Line Lender in its
sole discretion, Canadian Revolving Credit
Loans may not be made as contemplated
by Section 2.7(g), each Canadian Revolving
Credit Lender shall, on the date such
Canadian Revolving Credit Loan was to have
been made pursuant to the notice
referred to in Section 2.7(g) (the
"Canadian Refunding Date"), purchase for cash
an undivided participating interest in the
then outstanding Canadian Swing Line
Loans by paying to the Canadian Swing Line
Lender an amount (the "Canadian Swing
Line Participation Amount") equal to (i)
such Canadian Revolving Credit Lender's
Canadian Revolving Credit Percentage times
(ii) the sum of the aggregate
principal amount of Canadian Swing Line
Loans then outstanding which were to
have been repaid with such Canadian
Revolving Credit Loans.
(i) Whenever, at any time after the Canadian Swing Line Lender
has
received from any Canadian Revolving Credit
Lender such Lender's Canadian Swing
Line Participation Amount, the Canadian
Swing Line Lender receives any payment
on account of the Canadian Swing Line
Loans, the Canadian Swing Line Lender will
distribute to such Lender its Canadian
Swing Line Participation Amount
(appropriately adjusted, in the case of
interest payments, to reflect the period
of time during which such Lender's
participating interest was outstanding and
funded and, in the case of principal and
interest payments, to reflect such
Lender's pro rata portion of such payment
if such payment is not sufficient to
pay the principal of and interest on all
Canadian Swing Line Loans then due);
provided, however, that in the event that
such payment received by the Canadian
Swing Line Lender is required to be
returned, such Canadian Revolving Credit
Lender will return to the Canadian Swing
Line Lender any portion thereof
previously distributed to it by the
Canadian Swing Line Lender.
(j) Each Canadian Revolving Credit Lender's obligation to make
the
Loans referred to in Section 2.7(g) and to
purchase participating interests
pursuant to Section 2.7(h) 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 Canadian Revolving
Credit Lender or CERI may have against the
Canadian Swing Line Lender, CERI or
any other Person for any reason whatsoever;
(ii) the occurrence or continuance
of a Default or an Event of Default or the
failure to satisfy any of the other
conditions specified in Section 5; (iii)
any adverse change in the condition
(financial or otherwise) of CERI; (iv) any
breach of this Agreement or any other
Loan Document by CERI, any other Loan Party
or any other Canadian Revolving
Credit Lender; or (v) any other
circumstance, happening or event whatsoever,
whether or not similar to any of the
foregoing.
44
<PAGE>
2.8 Repayment of
Loans; Evidence of Debt(a) . The Borrower hereby
unconditionally promises to pay to the
Administrative Agent for the account of
the appropriate US Revolving Credit Lender
or Term Loan Lender, as the case may
be, (i) the then unpaid principal amount of
each US Revolving Credit Loan of
such US Revolving Credit Lender on the US
Revolving Credit Termination Date (or
on such earlier date on which the Loans
become due and payable pursuant to
Section 8), (ii) the then unpaid principal
amount of each US Swing Line Loan of
such US Swing Line Lender on the US
Revolving Credit Termination Date (or on
such earlier date on which the Loans become
due and payable pursuant to Section
8) and (iii) the principal amount of each
Tranche B Term Loan of such Tranche B
Term Loan Lender in installments according
to the amortization schedule set
forth in Section 2.3 (or on such earlier
date on which the Loans become due and
payable pursuant to Section 8). CERI hereby
unconditionally promises to pay to
the Canadian Agent for the account of the
appropriate Canadian Revolving Credit
Lender (i) the then unpaid principal amount
of each Canadian Revolving Credit
Loan of such Canadian Revolving Credit
Lender on the Canadian Revolving Credit
Termination Date (or on such earlier date
on which the Loans become due and
payable pursuant to Section 8) and (ii) the
then unpaid principal amount of each
Canadian Swing Line Loan of such Canadian
Swing Line Lender on the Canadian
Revolving Credit Termination Date (or on
such earlier date on which the Loans
become due and payable pursuant to Section
8). Each of the Borrower and CERI
hereby further agree to pay interest on the
unpaid principal amount of the Loans
borrowed by the Borrower and CERI, as
applicable, from time to time outstanding
from the Restatement Effective Date until
payment in full thereof at the rate
per annum and on the dates, set forth in
Section 2.15.
(b) Each Lender shall maintain in accordance with its usual
practice
an account or accounts evidencing
indebtedness of the Borrower or CERI, as
applicable, to such Lender resulting from
each Loan of such Lender from time to
time, including the amounts of principal
and interest payable and paid to such
Lender from time to time under this
Agreement.
(c) The Administrative Agent, on behalf of the Borrower, and
the
Canadian Agent, on behalf of CERI, shall
maintain the Register pursuant to
Section 10.6(d), and a subaccount therein
for each Lender, in which shall be
recorded (i) the amount of each Loan made
hereunder and any Note evidencing such
Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii)
the amount of any principal or interest due
and payable or to become due and
payable from the Borrower or CERI, as
applicable, to each Lender hereunder and
(iii) both the amount of any sum received
by the Administrative Agent hereunder
from the Borrower, or by the Canadian Agent
from CERI, and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each
Lender
maintained pursuant to Section 2.8(b)
shall, to the extent permitted by
applicable law, be prima facie evidence of
the existence and amounts of the
obligations of the Borrower or CERI therein
recorded; provided, however, that
the failure of any Lender, the
Administrative Agent or the Canadian Agent to
maintain the Register or any such account,
or any error therein, shall not in
any manner affect the obligation of the
Borrower or CERI, as applicable, to
repay (with applicable interest) the Loans
made to the Borrower or CERI by such
Lender in accordance with the terms of this
Agreement.
(e) Each of the Borrower and CERI agree that, upon the request
to
the Administrative Agent or the Canadian
Agent by any Lender, the Borrower or
CERI, as
45
<PAGE>
applicable, will promptly execute and
deliver to such Lender a promissory note
of the Borrower or CERI, as applicable,
evidencing any Term Loans, US Revolving
Credit Loans, Canadian Revolving Credit
Loans, US Swing Line Loans, or Canadian
Swing Line Loans as the case may be, of
such Lender, substantially in the forms
of Exhibit G-1, G-2, G-3, G-4 or G-5,
respectively (a "Term Note", "US Revolving
Credit Note", "Canadian Revolving Credit
Note", "US Swing Line Note" or
"Canadian Swing Line Note", respectively),
with appropriate insertions as to
date and principal amount; provided, that
delivery of Notes shall not be a
condition precedent to the occurrence of
the Restatement Effective Date or the
making of the Loans on the Restatement
Effective Date.
2.9 Commitment
Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of
each US Revolving Credit Lender a
commitment fee for the period from and
including the Restatement Effective Date
to the last day of the US Revolving Credit
Commitment Period computed at the
Commitment Fee Rate on the average daily
amount of the Available US Revolving
Credit Commitment of such Lender and CERI
agrees to pay to the Canadian Agent
for the account of each Canadian Revolving
Credit Lender a commitment fee for
the period from and including the
Restatement Effective Date to the last day of
the Canadian Revolving Credit Commitment
Period, computed at the Commitment Fee
Rate on the average daily amount of the
Available Canadian Revolving Credit
Commitment of such Lender, in each case,
during the period for which payment is
made, payable quarterly in arrears on the
last day of each March, June,
September and December and on the US
Revolving Credit Termination Date with
respect to US Revolving Credit Loans or the
Canadian Revolving Termination Date
with respect to Canadian Revolving Credit
Loans, commencing on the first of such
dates to occur after the Restatement
Effective Date.
(b) The Borrower agrees to pay to the Administrative Agent the
fees
in the amounts and on the dates from time
to time agreed to in writing by the
Borrower and the Administrative Agent.
2.10 Termination or
Reduction of Revolving Credit Commitments. Each
of the Borrower and CERI, as applicable,
shall have the right, upon not less
than three Business Days notice to the
Administrative Agent (and with respect to
the Canadian Revolving Credit Commitments,
the Canadian Agent), to terminate the
US Revolving Credit Commitments or the
Canadian Revolving Credit Commitments, as
applicable, or, from time to time, to
reduce the aggregate amount of the US
Revolving Credit Commitments or the
Canadian Revolving Credit Commitments, as
applicable; provided, that no such
termination or reduction of the US Revolving
Credit Commitments or the Canadian
Revolving Credit Commitments shall be
permitted if, after giving effect thereto
and to any prepayments of the
Revolving Credit Loans and Swing Line Loans
made on the effective date thereof,
(i) the aggregate amount of US Revolving
Extensions of Credit would exceed the
aggregate amount of US Revolving Credit
Commitments or (ii) the aggregate amount
of Canadian Revolving Extensions of Credit
would exceed the aggregate amount of
Canadian Revolving Credit Commitments. Any
such reduction shall be in an amount
equal to $1,000,000 or, Cdn. $100,000, in
the case of the Canadian Revolving
Credit Commitments, or a whole multiple
thereof, and shall reduce permanently
the applicable Revolving Credit Commitments
then in effect.
2.11 Optional
Prepayments. Each of the Borrower and CERI may at any
time and from time to time prepay the
Loans, in whole or in part, without
premium or penalty (except
46
<PAGE>
as otherwise provided herein), upon
irrevocable notice delivered to the
Administrative Agent (and, with respect to
the Canadian Revolving Credit
Commitments, the Canadian Agent), at least
three Business Days prior thereto in
the case of Eurodollar Loans or Bankers'
Acceptances and at least one Business
Day prior thereto in the case of Base Rate
Loans or Canadian Prime Rate Loans,
which notice shall specify the date and
amount of such prepayment, and whether
such prepayment is of Term Loans, US
Revolving Credit Loans or Canadian
Revolving Credit Loans, and whether such
prepayment is of Eurodollar Loans,
Bankers' Acceptances, Base Rate Loans or
Canadian Prime Rate Loans; provided,
that (i) if a Eurodollar Loan is prepaid on
any day other than the last day of
the Interest Period applicable thereto, the
Borrower or CERI, as applicable,
shall also pay any amounts owing pursuant
to Section 2.21, (ii) prepayments of
Bankers' Acceptances shall be made in
accordance with Section 2.5(d) and (iii)
no prior notice is required for the
prepayment of Swing Line Loans. Upon receipt
of any such notice the Administrative Agent
(or the Canadian Agent, if
applicable) shall promptly notify each
relevant Lender thereof. If any such
notice is given, the amount specified in
such notice shall be due and payable on
the date specified therein, together with
(except in the case of (1) Revolving
Credit Loans that are Base Rate Loans, (2)
Canadian Prime Rate Loans and (3)
Swing Line Loans) accrued interest to such
date on the amount prepaid. Partial
prepayments of Term Loans and Revolving
Credit Loans shall be in an aggregate
principal amount of $1,000,000 or Cdn.
$1,000,000, as applicable, or a whole
multiple thereof. Partial prepayments of
Swing Line Loans shall be in an
aggregate principal amount of $100,000 or
Cdn. $100,000 or a whole multiple
thereof. Amounts applied in connection with
the prepayments made pursuant to
this Section 2.11 shall be applied to the
relevant Loans as provided in Section
2.18.
2.12 Mandatory
Prepayments and Commitment Reductions. (a)
Unless the Required Prepayment Lenders
shall otherwise agree, (i) if any Capital
Stock shall be issued by CERI (other than
the Capital Stock issued as part of
the Restatement Effective Date Equity
Issuance) or, after the Migration, the
Borrower or (ii) if any Indebtedness shall
be incurred, by any Group Member
excluding any Indebtedness incurred in
accordance with Section 7.2 as in effect
on the Restatement Effective Date (except
Indebtedness incurred pursuant to
Section 7.2(g)(i)(y) and 7.2(g)(ii)), then
on the date of such issuance or
incurrence, the Term Loans shall be
prepaid, and/or the Revolving Credit Loans
shall be repaid, by an amount equal to, in
the case of an issuance of Capital
Stock, 50% of the Net Cash Proceeds
thereof, reducing to 0.0% when the
Consolidated Leverage Ratio as of the last
day of the most recently completed
fiscal quarter for which financial
statements are available is equal to or less
than 3.50:1.00, or in the case of
Indebtedness, 100% of the Net Cash Proceeds,
other than any Excluded Proceeds, of such
issuance or incurrence, as set forth
in Section 2.12(d). The provisions of this
Section do not constitute a consent
to the issuance of any equity securities by
any entity whose equity securities
are pledged pursuant to the Guarantee and
Collateral Agreement or the Canadian
Guarantee and Collateral Agreement, or a
consent to the incurrence of any
Indebtedness by CERI, the Borrower or any
of its Subsidiaries.
(b) Unless the Required Prepayment Lenders shall otherwise agree,
if
on any date any Group Member shall receive
Net Cash Proceeds from any Asset
Sale, Purchase Price Refund or Recovery
Event then, unless a Reinvestment Notice
shall be delivered in respect thereof, on
the date of receipt by such Group
Member of such Net Cash Proceeds, the Term
Loans shall be prepaid, and/or the
Revolving Credit Loans shall be repaid, by
an amount equal to the amount of such
Net Cash Proceeds, as set forth in Section
2.12(d); provided, that,
notwithstanding the foregoing, (i) the
aggregate Net Cash Proceeds of Asset
Sales and Recovery
47
<PAGE>
Events that may be excluded from the
foregoing requirement pursuant to one or
more Reinvestment Notices and pending
reinvestment at any given time shall not
exceed $25,000,000 and (ii) on each
Reinvestment Prepayment Date the Term Loans
shall be prepaid, and/or the Revolving
Credit Loans shall be repaid, by an
amount equal to the Reinvestment Prepayment
Amount with respect to the relevant
Reinvestment Event, as set forth in Section
2.12(d). The provisions of this
Section do not constitute a consent to the
consummation of any Disposition not
permitted by Section 7.5.
(c) Unless the Required Prepayment Lenders shall otherwise
agree,
if, for any fiscal year of the Borrower
commencing with the fiscal year ending
December 31, 2005 there shall be Excess
Cash Flow, then, on the relevant Excess
Cash Flow Application Date, the Term Loans
shall be prepaid and/or the Revolving
Credit Loans shall be repaid, by an amount
equal to the ECF percentage of such
Excess Cash Flow, as set forth in Section
2.12(d). Each such prepayment shall be
made on a date (an "Excess Cash Flow
Application Date") no later than five days
after the earlier of (i) the date on which
the financial statements of CERI or,
after the Migration, the Borrower referred
to in Section 6.1(a), for the fiscal
year with respect to which such prepayment
is made, are required to be delivered
to the Lenders and (ii) the date such
financial statements are actually
delivered.
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to this
Section 2.12 shall be applied,
first, to the prepayment of the Term Loans
and, second, to the repayment of the
Revolving Credit Loans, as provided in
Section 2.18. Any repayment of Revolving
Credit Loans pursuant to this Section 2.12
shall not result in a reduction of
the Revolving Credit Commitments.
(e) If at any time the Dollar Equivalent of the Canadian
Revolving
Credit Loans exceeds the aggregate Canadian
Revolving Credit Commitments, CERI
shall repay such excess forthwith upon
notice by the Canadian Agent.
2.13 Conversion and
Continuation Options(a) Each of the Borrower
and CERI may elect from time to time to
convert Eurodollar Loans to Base Rate
Loans and CERI may elect to convert
Bankers' Acceptances upon their maturity to
Canadian Prime Rate Loans by giving the
Administrative Agent, and, with respect
to Canadian Revolving Credit Loans, the
Canadian Agent, at least one Business
Day's prior irrevocable notice of such
election, provided, that, any such
conversion of Eurodollar Loans may be made
only on the last day of an Interest
Period with respect thereto. Each of the
Borrower and CERI may elect from time
to time to convert Base Rate Loans to
Eurodollar Loans, and CERI may elect to
convert Canadian Prime Rate Loans to
Bankers' Acceptances, by giving the
Administrative Agent, and, with respect to
Canadian Revolving Credit Loans, the
Canadian Agent, at least three Business
Days prior irrevocable notice of such
election (which notice shall specify the
length of the initial Interest Period
therefor), provided, that no Base Rate Loan
under a particular Facility may be
converted into a Eurodollar Loan and no
Canadian Prime Rate Loan may be
converted to Bankers' Acceptances (i) when
any Event of Default has occurred and
is continuing and the Administrative Agent
has or with respect to the Canadian
Revolving Credit Facility, the Canadian
Agent has, or the Majority Facility
Lenders in respect of such Facility have,
determined in its or their sole
discretion not to permit such conversions
or (ii) after the date that is one
month prior to the final scheduled
termination or maturity date of such
Facility. Upon
48
<PAGE>
receipt of any such notice the
Administrative Agent, or the Canadian Agent, as
applicable, shall promptly notify each
relevant Lender thereof.
(b) Each of the Borrower and CERI may elect to continue any
Eurodollar Loan as such and CERI may elect
to continue Bankers' Acceptance as
such upon the expiration of the then
current Interest Period with respect
thereto by giving at least two Business
Days' prior irrevocable notice to the
Administrative Agent, and with respect to
Canadian Revolving Credit Loans, the
Canadian Agent, in accordance with the
applicable provisions of the term
"Interest Period" set forth in Section 1.1
in respect of Eurodollar Loans, of
the length of the next Interest Period to
be applicable to such Loans, provided,
that no Eurodollar Loan or Bankers'
Acceptance under a particular Facility may
be continued as such (i) when any Event of
Default has occurred and is
continuing and the Administrative Agent has
or with respect to the Canadian
Revolving Credit Facility, the Canadian
Agent has, or the Majority Facility
Lenders in respect of such Facility have,
determined in its or their sole
discretion not to permit such continuations
or (ii) after the date that is one
month prior to the final scheduled
termination or maturity date of such
Facility, and provided, further, that if
the Borrower or CERI, as applicable,
shall fail to give any required notice as
described above in this paragraph (i)
such Eurodollar Loans shall be continued
for the same Interest Period as the
then expiring Interest Period as of the
last day of such then expiring Interest
Period, except that if such continuation is
not permitted pursuant to the first
proviso in this Section 2.13(b), such Loans
shall be repaid or converted
automatically to Base Rate Loans and (ii)
the face amount of such Bankers'
Acceptance shall be repaid or automatically
converted to Canadian Prime Rate
Loans on the last day of such then expiring
Interest Period. Upon receipt of any
such notice the Administrative Agent, or
the Canadian Agent, as applicable,
shall promptly notify each relevant Lender
thereof.
2.14 Minimum Amounts
and Maximum Number of Eurodollar Tranches. (a)
Notwithstanding anything to the contrary in
this Agreement, all borrowings,
conversions, continuations and optional
prepayments of Eurodollar Loans and all
selections of Interest Periods shall be in
such amounts and be made pursuant to
such elections so that, (i) after giving
effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising
each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (ii) no
more than 10 Eurodollar Tranches shall be
outstanding at any one time.
(b) Notwithstanding anything to the contrary in this Agreement,
all
borrowings, conversions, continuations and
optional prepayments of Bankers'
Acceptances and all selections of Interest
Periods shall be in such amounts and
be made pursuant to such elections so that
after giving effect thereto, the
aggregate principal amount of any Bankers'
Acceptance shall be equal to Cdn.
$500,000 or a whole multiple of Cdn.
$100,000 in excess thereof.
2.15 Interest Rates
and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during
each Interest Period with respect
thereto at a rate per annum equal to the
Eurodollar Rate determined for such day
plus the Applicable Margin in effect for
such day.
(b) Each Base Rate Loan (other than a Canadian Revolving Credit
Loan) shall bear interest for each day on
which it is outstanding at a rate per
annum equal to the Base Rate in effect for
such day plus the Applicable Margin
in effect for such day and each Base Rate
Loan which is a Canadian Revolving
Credit Loan shall bear interest for each
day on which it is
49
<PAGE>
outstanding at a rate per annum equal to
the US Base Rate in Canada in effect
for such day plus the Applicable Margin in
effect for such day.
(c) Each Canadian Prime Rate Loan shall bear interest for each
day
on which it is outstanding at a rate per
annum equal to the Canadian Prime Rate
in effect for such day plus the Applicable
Margin in effect for such day.
(d) Upon acceptance of a Bankers' Acceptance by a Lender, the
Borrower shall pay to the Canadian Agent on
behalf of the Lender a fee (the
"Acceptance Fee") calculated on the face
amount of the Bankers' Acceptances at a
rate per annum equal to the Applicable
Margin on the basis of the number of days
in the Interest Period for the Bankers'
Acceptance and a year of 365 days.
(e) (i) If all or a portion of the principal amount of any Loan
or
Reimbursement Obligation shall not be paid
when due (whether at the stated
maturity, by acceleration or otherwise),
all outstanding Loans and Reimbursement
Obligations (whether or not overdue) (to
the extent legally permitted) shall
bear interest at a rate per annum that is
equal to (x) in the case of the Loans,
the rate that would otherwise be applicable
thereto pursuant to the foregoing
provisions of this Section plus 2.00%, (y)
in the case of the Borrower's
Reimbursement Obligations, the rate
applicable to Base Rate Loans under the US
Revolving Credit Facility plus 2.00% or (2)
in the case of CERI's Reimbursement
Obligations, the rate applicable to
Canadian Prime Rate Loans under the Canadian
Revolving Credit Facility plus 2.00% and
(ii) if all or a portion of any
interest payable on any Loan or
Reimbursement Obligation or any commitment fee
or other amount payable hereunder shall not
be paid when due (whether at the
stated maturity, by acceleration or
otherwise), such overdue amount shall bear
interest at a rate per annum equal to the
rate then applicable to Base Rate
Loans under the relevant Facility plus
2.00% for interest due in Dollars and the
Canadian Prime Rate plus 2.00% for interest
due in Canadian Dollars (or, in the
case of any such other amounts that do not
relate to a particular Facility, the
rate then applicable to Base Rate Loans
under the Revolving Credit Facilities
plus 2.00% for amounts due in Dollars and
the Canadian Prime Rate plus 2.00% for
amounts due in Canadian Dollars), in each
case, with respect to clauses (i) and
(ii) above, from the date of such
non-payment until such amount is paid in full
(after as well as before judgment).
(f) Interest shall be payable quarterly in arrears on each
Interest
Payment Date, provided, that interest
accruing pursuant to paragraph (e) of this
Section shall be payable from time to time
on demand.
(g) If any provision of this Agreement or any of the other Loan
Documents would obligate CERI to make any
payment of interest with respect to
the Obligations or other amount payable to
the Canadian Agent or any Lender in
an amount or calculated at a rate which
would be prohibited by law or would
result in a receipt by the Canadian Agent
or such Lender of interest with
respect to the Obligations at a criminal
rate (as such terms are construed under
the Criminal Code (Canada)) then,
notwithstanding such provision, such amount or
rates shall be deemed to have been adjusted
with retroactive effect to the
maximum amount or rate of interest, as the
case may be, as would not be so
prohibited by law or so result in a receipt
by the Canadian Agent or such Lender
of interest with respect to the Obligations
at a criminal rate, such adjustment
to be effected, to the extent necessary, as
follows: (1) first, by reducing the
amount or rates of interest required to be
paid to the Canadian Agent or the
affected Lender under this
50
<PAGE>
Section 2.15(g); and (2) thereafter, by
reducing any fees, commissions, premiums
and other amounts required to be paid to
the Canadian Agent or the affected
Lender which would constitute interest with
respect to the Obligations for
purposes of Section 347 of the Criminal
Code (Canada). Notwithstanding the
foregoing, and after giving effect to all
adjustments contemplated thereby, if
the Canadian Agent or any Lender shall have
received an amount in excess of the
maximum permitted by that section of the
Criminal Code (Canada), then CERI shall
be entitled, by notice in writing to the
Canadian Agent or the affected Lender,
to obtain reimbursement from the Canadian
Agent or such Lender in an amount
equal to such excess, and pending such
reimbursement, such amount shall be
deemed to be an amount payable by the
Canadian Agent or such Lender to CERI. Any
amount or rate of interest under the
Obligations referred to in this Section
2.15(e) shall be determined in accordance
with generally accepted actuarial
practices and principles as an effective
annual rate of interest over the term
that any Canadian Revolving Credit Loans
remain outstanding on the assumption
that any charges, fees or expenses that
fall within the meaning of "interest"
(as defined in the Criminal Code (Canada))
shall, if they relate to a specific
period of time, be pro-rated over that
period of time and otherwise be pro-rated
over the period from the Restatement
Effective Date to the Canadian Revolving
Credit Termination Date and, in the event
of a dispute, a certificate of a
Fellow of the Canadian Institute of
Actuaries appointed by the Canadian Agent
shall be conclusive for the purposes of
such determination.
(h) For purposes of disclosure pursuant to the Interest Act
(Canada), the annual rates of interest or
fees to which the rates of interest or
fees provided in this Agreement and the
other Loan Documents (and stated herein
or therein, as applicable, to be computed
on the basis of a 360 day year or any
other period of time less than a calendar
year) are equivalent to the rates so
determined multiplied by the actual number
of days in the applicable calendar
year and divided by 360 or such other
period of time, respectively.
2.16 Computation of
Interest and Fees(a). (a) Interest, fees,
commissions payable pursuant hereto shall
be calculated on the basis of a
360-day year for the actual days elapsed,
except that, with respect to (i) Base
Rate Loans on which interest is calculated
on the basis of the Prime Rate and
(ii) Base Rate Loans in which interest is
calculated on the US Base Rate in
Canada and Canadian Prime Rate Loans on
which interest is calculated on the
basis of the Canadian Prime Rate, the
interest thereon shall be calculated on
the basis of a 365- (or 366-, as the case
may be) day year for the actual days
elapsed. The Administrative Agent, or with
respect to Canadian Revolving Credit
Loans, the Canadian Agent, shall as soon as
practicable notify the Borrower or
CERI, as applicable, and the relevant
Lenders of each determination of a
Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a
change in the Canadian Prime Rate, the Base
Rate or the Eurocurrency Reserve
Requirements shall become effective as of
the opening of business on the day on
which such change becomes effective. The
Administrative Agent, or with respect
to Canadian Revolving Credit Loans, the
Canadian Agent, shall as soon as
practicable notify the Borrower, CERI and
the relevant Lenders of the effective
date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the
Administrative
Agent, or with respect to Canadian
Revolving Credit Loans, the Canadian Agent,
pursuant to any provision of this Agreement
shall be conclusive and binding on
the Borrower and CERI and the Lenders in
the absence of manifest error. The
Administrative Agent or the Canadian Agent,
as applicable, shall, at the request
of the Borrower or CERI, deliver to the
Borrower or CERI, as applicable, a
51
<PAGE>
statement showing the quotations used by
the Administrative Agent or the
Canadian Agent in determining any interest
rate or Acceptance Fee pursuant to
Section 2.15.
2.17 Inability to
Determine Interest Rate. If prior to the first
day of any Interest Period:
(a) (i) the Administrative Agent, or with respect to Canadian
Revolving Credit Loans, the Canadian Agent,
shall have determined (which
determination shall be conclusive and
binding upon the Borrower and CERI) that,
by reason of circumstances affecting the
relevant market, adequate and
reasonable means do not exist for
ascertaining the Eurodollar Rate for such
Interest Period, or
(ii) the Administrative Agent, or with respect to Canadian
Revolving
Credit Loans, the Canadian Agent, shall
have received notice from the Majority
Facility Lenders in respect of the relevant
Facility that the Eurodollar Rate
determined or to be determined for such
Interest Period will not adequately and
fairly reflect the cost to such Lenders (as
conclusively certified by such
Lenders) of making or maintaining their
affected Loans during such Interest
Period,
the Administrative Agent or the Canadian
Agent, as applicable, shall give
telecopy or telephonic notice thereof to
the Borrower or CERI, as applicable,
and the relevant Lenders as soon as
practicable thereafter. If such notice is
given (x) any Eurodollar Loans under the
relevant Facility requested to be made
on the first day of such Interest Period
shall be made as Base Rate Loans, (y)
any Loans under the relevant Facility that
were to have been converted on the
first day of such Interest Period to
Eurodollar Loans shall be continued as Base
Rate Loans and (z) any outstanding
Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the
then current Interest Period with
respect thereto, to Base Rate Loans. Until
such notice has been withdrawn by the
Administrative Agent or the Canadian Agent,
as applicable, no further Eurodollar
Loans under the relevant Facility shall be
made or continued as such, nor shall
the Borrower or CERI have the right to
convert Loans under the relevant Facility
to Eurodollar Loans.
(b) any Canadian Revolving Credit Lender determines in good
faith,
which determination shall be final,
conclusive and binding upon CERI, and
notifies CERI that, by reason of
circumstances affecting the money market there
is no market for Bankers' Acceptances or
the demand for Bankers' Acceptances is
insufficient to allow the sale or trading
of the Bankers' Acceptances created
hereunder, then:
(i) the right of
CERI to request a Canadian Revolving Credit
Loan by
means of Bankers' Acceptances shall be suspended until such
Canadian
Revolving Credit Lender determines that the circumstances
causing
such
suspension no longer exist and such Canadian Revolving Credit
Lender
so
notifies CERI; and
(ii) any notice for
the issuance of a Bankers' Acceptance
which is
outstanding shall be cancelled and the request for such
issuance
shall be
deemed to be a request for a Canadian Prime Rate Loan in the
face
amount of
the requested Bankers' Acceptance;
52
<PAGE>
such Canadian Revolving Credit Lender shall
promptly notify CERI of the
suspension of CERI's right to request a
Canadian Revolving Credit Loan by way of
a Bankers' Acceptance and of the
termination of any such suspension.
2.18 Pro Rata
Treatment and Payments. (a) Each borrowing by the
Borrower or CERI from the Lenders
hereunder, each payment by the Borrower or
CERI on account of any Acceptance Fee,
commitment fee or Letter of Credit fee,
and any reduction of the Commitments of the
Lenders, shall be made pro rata
according to the respective Term Loan
Percentages, US Revolving Credit
Percentages or Canadian Revolving Credit
Percentages, as the case may be, of the
relevant Lenders. Each payment (other than
prepayments) in respect of principal
or interest in respect of the Term Loans
and each payment in respect of fees or
expenses payable hereunder shall be applied
to the amounts of such obligations
owing to the Lenders pro rata according to
the respective amounts then due and
owing to the Lenders.
(b) Each optional and mandatory payment (including prepayments)
required by Section 2.12 to be applied to
the Term Loans shall be allocated
among the Term Loan Facilities pro rata
according to the respective outstanding
principal amounts of Term Loans under such
Facilities. Each payment (including
each prepayment) of the Term Loans
outstanding under any Term Loan Facility
shall be allocated among the Term Loan
Lenders holding such Term Loans pro rata
based on the principal amount of such Term
Loans held by such Term Loan Lenders,
and shall be applied to the installments of
such Term Loans, first, in direct
order of maturity for the four quarterly
installments due immediately after the
date of such prepayment and, second, with
respect to any remainder, to the
remaining installments of such Term Loans
ratably in accordance with the then
outstanding amounts thereof. Amounts
prepaid on account of the Term Loans may
not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the
Revolving Credit Loans shall be
allocated among the Revolving Credit
Facilities pro rata according to the
respective outstanding principal amounts of
Revolving Credit Loans under such
Facilities. Each payment (including each
prepayment) of the Revolving Credit
Loans outstanding under any Revolving
Credit Facility shall be allocated among
the Revolving Credit Lenders holding such
Revolving Credit Loans pro rata
according to the respective outstanding
principal amounts of the Revolving
Credit Loans then held by such Revolving
Credit Lenders. Each payment in respect
of Reimbursement Obligations in respect of
any Letter of Credit shall be made to
the Issuing Lender that issued such Letters
of Credit.
(d) The application of any payment of Loans under any Facility
(including optional and mandatory
prepayments) shall be made, first, to Base
Rate Loans (and Canadian Prime Rate Loans,
in the case of CERI), under such
Facility and, second, to Eurodollar Loans
(and Bankers' Acceptances, in the case
of CERI), under such Facility. Each payment
of the Loans (except in the case of
Swing Line Loans and Revolving Credit Loans
that are Base Rate Loans or Canadian
Prime Rate Loans) shall be accompanied by
accrued interest to the date of such
payment on the amount paid.
(e) All payments (including prepayments) to be made by the
Borrower
and CERI hereunder, whether on account of
principal, interest, fees or
otherwise, shall be made without setoff or
counterclaim. All payments (including
prepayments) to be made by the Borrower
hereunder, whether on account of
principal, inter
