<PAGE>
EXHIBIT 10.1
EXECUTION COPY
================================================================================
$350,000,000
CREDIT AGREEMENT
among
SUNSHINE ACQUISITION II, INC.,
as Initial US Borrower,
SS&C TECHNOLOGIES, INC.,
as Surviving US Borrower,
SS&C TECHNOLOGIES CANADA CORP.,
as CDN Borrower,
The Several Lenders from Time to Time Parties Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH,
as Canadian Administrative Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
BANK OF AMERICA, N.A.,
as Documentation Agent
Dated as of November 23, 2005
================================================================================
J.P. MORGAN SECURITIES INC. and WACHOVIA CAPITAL MARKETS, LLC,
as Co-Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS
1
1.1 Defined
Terms...................................................
1
1.2 Other Definitional
Provisions................................... 34
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
35
2.1 Term
Commitments................................................
35
2.2 Procedure for Term Loan
Borrowing............................... 35
2.3 Repayment of Term
Loans......................................... 36
2.4 Revolving
Commitments........................................... 38
2.5 Procedure for Revolving Loan
Borrowing.......................... 39
2.6 Swingline
Commitment............................................ 40
2.7 Procedure for Swingline
Borrowing; Refunding of Swingline
Loans........................................................
41
2.8 Repayment of
Loans.............................................. 43
2.9 Commitment Fees,
etc............................................ 44
2.10
Termination or
Reduction of Revolving Commitments............... 44
2.11
Optional
Prepayments............................................
44
2.12
Mandatory Prepayments
and Commitment Reductions................. 45
2.13
Conversion and
Continuation Options............................. 47
2.14
Minimum Amounts and
Maximum Number of Eurocurrency Tranches..... 48
2.15
Interest Rates and
Payment Dates................................ 49
2.16
Computation of
Interest and Fees................................ 49
2.17
Inability to Determine
Interest Rate............................ 50
2.18
Pro Rata Treatment and
Payments................................. 50
2.19
Requirements of
Law............................................. 52
2.20
Taxes...........................................................
54
2.21
Indemnity.......................................................
56
2.22
Illegality......................................................
56
2.23
Change of Lending
Office........................................ 56
2.24
Replacement of
Lenders.......................................... 57
2.25
Bankers'
Acceptances............................................
57
2.26
Repayment and Renewal
of Bankers' Acceptances................... 60
2.27
Circumstances Making
Bankers' Acceptances Unavailable........... 60
2.28
Incremental Term
Loans.......................................... 61
SECTION 3. LETTERS OF CREDIT
62
3.1 L/C
Commitment..................................................
62
3.2 Procedure for Issuance of
Letter of Credit...................... 62
3.3 Fees and Other
Charges.......................................... 63
3.4 L/C
Participations..............................................
63
3.5 Reimbursement Obligation of
the Borrowers....................... 64
3.6 Obligations
Absolute............................................ 65
3.7 Letter of Credit
Payments....................................... 65
3.8
Applications....................................................
65
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SECTION 4. REPRESENTATIONS AND WARRANTIES
65
4.1 Financial
Condition............................................. 66
4.2 No
Change.......................................................
66
4.3 Existence; Compliance with
Law.................................. 66
4.4 Corporate Power;
Authorization; Enforceable Obligations......... 67
4.5 No Legal
Bar....................................................
67
4.6 No Material
Litigation.......................................... 67
4.7 No
Default......................................................
67
4.8 Ownership of Property;
Liens.................................... 67
4.9 Intellectual
Property........................................... 67
4.10
Taxes...........................................................
68
4.11
Federal
Regulations.............................................
68
4.12
ERISA...........................................................
68
4.13
Canadian Benefit and
Pension Plans.............................. 69
4.14
Investment Company
Act.......................................... 69
4.15
Subsidiaries....................................................
69
4.16
Environmental
Matters........................................... 69
4.17
Accuracy of
Information, etc.................................... 70
4.18
Security
Documents..............................................
70
4.19
Solvency........................................................
71
4.20
Regulation
H.................................................... 71
4.21
Senior
Indebtedness.............................................
71
SECTION 5. CONDITIONS PRECEDENT
71
5.1 Conditions to Initial
Extension of Credit....................... 71
5.2 Conditions to Each Extension
of Credit.......................... 73
SECTION 6. AFFIRMATIVE COVENANTS
74
6.1 Financial
Statements............................................ 74
6.2 Certificates; Other
Information................................. 75
6.3 Payment of
Obligations.......................................... 76
6.4 Conduct of Business and
Maintenance of Existence, etc;
Compliance...................................................
76
6.5 Maintenance of Property;
Insurance.............................. 76
6.6 Inspection of Property;
Books and Records; Discussions.......... 77
6.7
Notices.........................................................
77
6.8 Additional Collateral,
etc...................................... 78
6.9 Further
Assurances..............................................
80
6.10
Use of
Proceeds.................................................
81
6.11
Post Closing Leasehold
Mortgages................................ 81
6.12
Completion of Company
Reorganization............................ 81
SECTION 7. NEGATIVE COVENANTS
81
7.1 Financial Condition
Covenants................................... 81
7.2
Indebtedness....................................................
82
7.3
Liens...........................................................
84
7.4 Fundamental
Changes............................................. 86
7.5 Dispositions of
Property........................................ 87
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7.6 Restricted
Payments............................................. 88
7.7 Capital
Expenditures............................................
89
7.8
Investments.....................................................
90
7.9 Optional Payments and
Modifications of Certain Debt
Instruments..................................................
92
7.10
Transactions with
Affiliates.................................... 93
7.11
Sales and
Leasebacks............................................ 93
7.12
Changes in Fiscal
Periods....................................... 93
7.13
Negative Pledge
Clauses......................................... 93
7.14
Clauses Restricting
Subsidiary Distributions.................... 94
7.15
Lines of
Business...............................................
94
7.16
Limitation on Hedge
Agreements.................................. 94
7.17
Changes in
Jurisdictions of Organization; Name.................. 94
SECTION 8. EVENTS OF DEFAULT
95
SECTION 9. THE AGENTS
98
9.1
Appointment.....................................................
98
9.2 Delegation of
Duties............................................ 98
9.3 Exculpatory
Provisions.......................................... 98
9.4 Reliance by Administrative
Agent................................ 98
9.5 Notice of
Default............................................... 99
9.6 Non-Reliance on Agents and
Other Lenders........................ 99
9.7
Indemnification.................................................
99
9.8 Agent in Its Individual
Capacity................................ 100
9.9 Successor Administrative
Agent.................................. 100
9.10
Authorization to
Release Liens and Guarantees................... 100
9.11
Canadian
Administrative Agent...................................
100
9.12
Documentation Agent
and Syndication Agent....................... 101
SECTION 10. MISCELLANEOUS
101
10.1
Amendments and
Waivers.......................................... 101
10.2
Notices.........................................................
102
10.3
No Waiver; Cumulative
Remedies.................................. 103
10.4
Survival of
Representations and Warranties...................... 104
10.5
Payment of Expenses;
Indemnification............................ 104
10.6
Successors and
Assigns; Participations and Assignments.......... 105
10.7
Adjustments;
Set-off............................................ 108
10.8
Counterparts....................................................
108
10.9
Severability....................................................
108
10.10
Integration.....................................................
108
10.11 GOVERNING
LAW................................................... 108
10.12 Submission
To Jurisdiction; Waivers............................. 109
10.13 Judgment
Currency...............................................
109
10.14
Acknowledgments.................................................
110
10.15
Confidentiality.................................................
110
10.16 Release of
Collateral and Guarantee Obligations................. 111
10.17 Accounting
Changes.............................................. 112
10.18 WAIVERS OF
JURY TRIAL........................................... 112
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10.19 USA
PATRIOT ACT.................................................
112
10.20 CDN
Obligations.................................................
112
10.21 CDN
Amalgamation................................................
112
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iv
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SCHEDULES:
1.1A
Commitments
1.1B EBITDA
Adjustments
4.1
Contingent Liabilities
4.4
Consents, Authorizations, Filings and Notices
4.8A Excepted
Property
4.8B Owned Real
Property
4.15
Subsidiaries
4.18(a) UCC
Filing Jurisdictions
4.18(b) Mortgage
Filing Jurisdictions
6.11 Leased
Property
7.2(d)
Existing Indebtedness
7.3(f)
Existing Liens
7.8
Existing Investments
7.13
Restrictions on Subsidiaries
EXHIBITS:
A-1 Form of
Guarantee and Collateral Agreement
A-2 Form of CDN
Guarantee and Collateral Agreement
B
Form of Compliance Certificate
C
Form of Closing Certificate
D
Form of Assignment and Assumption
E-1 Form of
Legal Opinion of Latham & Watkins LLP
E-2 Form of
Legal Opinion of Torys LLP
F
Form of Exemption Certificate
G
Form of Solvency Certificate
H
Form of Discount Note
I
Form of Joinder Agreement
v
<PAGE>
CREDIT AGREEMENT, dated as of November 23, 2005, among SUNSHINE
ACQUISITION II, INC., a Delaware corporation (the "Initial US
Borrower"), SS&C
TECHNOLOGIES, INC., a Delaware corporation (the "Surviving US
Borrower"), SS&C
Technologies Canada Corp., a Nova Scotia unlimited company (the
"CDN Borrower"),
the several banks and other financial institutions or entities from
time to time
parties to this Agreement (the "Lenders"), WACHOVIA BANK, NATIONAL
ASSOCIATION,
as syndication agent (in such capacity, the "Syndication Agent"),
BANK OF
AMERICA, N.A., as documentation agent (in such capacity, the
"Documentation
Agent"), JPMORGAN CHASE BANK, N.A., as Administrative Agent, and
JPMORGAN CHASE
BANK, N.A., TORONTO BRANCH, as Canadian Administrative Agent.
The
parties hereto hereby agree 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.
"ABR": 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 rate of
interest per
annum publicly announced from time to time by JPMorgan Chase Bank
as its prime
rate in effect at its principal office in New York City (the Prime
Rate not
being intended to be the lowest rate of interest charged by
JPMorgan Chase Bank
in connection with extensions of credit to debtors). Any change in
the ABR 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.
"ABR Loans": Loans the rate of interest applicable to which is
based
upon the ABR.
"Acceptance Fee": the fee payable in CDN Dollars to the
Canadian
Administrative Agent, for the ratable account of the relevant CDN
B/A Lenders,
in respect of Bankers' Acceptances computed in accordance with
Section 2.25.
"Accounting Changes": as defined in Section 10.17.
"Acquisition": as defined in the definition of "Permitted
Acquisition".
"Additional Senior Subordinated Notes": unsecured senior
subordinated
notes issued by the US Borrower, (i) the terms of which (1) do not
provide for
any scheduled repayment, mandatory redemption or sinking fund
obligation prior
to the date on which the final maturity of the Senior Subordinated
Notes occurs
(as in effect on the Closing Date) and (2) provide for
subordination to the
Obligations under the Loan Documents to substantially the same
extent as the
Senior Subordinated Note Indenture, (ii) the covenants, events of
default,
Subsidiary guarantees and other terms of which (other than interest
rate and
redemption premiums), taken as a whole, are not more restrictive to
the US
Borrower and the Subsidiaries than those in the Senior Subordinated
Note
Indenture and (iii) under or in respect of which no Subsidiary of
the US
Borrower (other than any US Subsidiary Guarantor) is an
obligor.
"Adjustment Date": with respect to each Pricing Grid, as
defined
therein.
<PAGE>
2
"Administrative Agent": JPMorgan Chase Bank, as the
administrative
agent for the Lenders under this Agreement and the other Loan
Documents,
together with any of its successors and, for purposes of Section 9,
shall
include affiliates of JPMorgan Chase Bank as the arranger of the
Commitments.
"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 20% 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, in either
case whether
by contract or otherwise.
"Agents": the collective reference to the Syndication Agent,
the
Documentation Agent, the Canadian Administrative Agent and the
Administrative
Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an
amount equal to (a) until the Closing Date, the aggregate amount of
such
Lender's Commitments at such time and (b) thereafter, the sum of
(i) the US
Dollar Amount of the aggregate then unpaid principal amount of such
Lender's
Term Loans (including the Face Amount of all Bankers' Acceptances
accepted by
such Lender then outstanding under the C$ CDN Term Facility or the
CDN Revolving
Facility) and (ii) the aggregate amount of such Lender's Revolving
Commitments
then in effect or, if the Revolving 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 total Aggregate Exposures of all Lenders at
such time.
"Agreed Purposes": as defined in Section 10.15.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Annual Operating Budget": as defined in Section 6.2(c).
"Applicable Margin": for each Type of Loan, the rate per annum
set
forth under the relevant column heading below:
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ABR Loans, CDN ABR Loans Eurocurrency Loans and
and CDN Prime Loans Bankers'
Acceptances
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Revolving Loans and
Swingline Loans
1.75%
2.75%
US Term Loans and
US$ CDN Term
Loans
1.50%
2.50%
C$ CDN Term Loans
1.75%
2.75%
</TABLE>
provided, that on and after the first Adjustment Date occurring
after the
completion of the fiscal quarter of the US Borrower ending March
31, 2006, the
Applicable Margins with respect to Revolving Loans, Swingline Loans
and C$ CDN
Term Loans will be determined pursuant to the relevant Pricing
Grid.
"Application": an application, in such form as the relevant
Issuing
Lender may specify from time to time, requesting such Issuing
Lender to open a
Letter of Credit.
<PAGE>
3
"Approved Fund": as defined in Section 10.6(b).
"Asset Sale": any Disposition of Property or series of related
Dispositions of Property (excluding (i) any such Disposition
permitted by clause
(a), (b), (c) (except as it relates to Section 7.4(e)), (d), (g),
(h), (i), (j),
(l), (m), (n), (p), (q) and (r) of Section 7.5 and (ii) any such
Disposition
which is a Recovery Event) which yields Net Cash Proceeds to any
Loan Party
(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 $1,000,000.
"Assignee": as defined in Section 10.6(b).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit E.
"Available CDN Revolving Commitment": as to any CDN Revolving
Lender
at any time, an amount equal to the excess, if any, of (a) such
Lender's CDN
Revolving Commitment then in effect over (b) such Lender's CDN
Revolving
Extensions of Credit then outstanding; provided, that in
calculating any CDN
Revolving Lender's CDN Revolving Extensions of Credit for the
purpose of
determining such CDN Revolving Lender's Available CDN Revolving
Commitments
pursuant to Section 2.9(b), the aggregate principal amount of CDN
Swingline
Loans then outstanding shall be deemed to be zero.
"Available US Revolving Commitment": as to any US Revolving Lender
at
any time, an amount equal to the excess, if any, of (a) such
Lender's US
Revolving Commitment then in effect over (b) such Lender's US
Revolving
Extensions of Credit then outstanding; provided, that in
calculating any US
Revolving Lender's US Revolving Extensions of Credit for the
purpose of
determining such US Revolving Lender's Available US Revolving
Commitments
pursuant to Section 2.9(a), the aggregate principal amount of US
Swingline Loans
then outstanding shall be deemed to be zero.
"BA Discount Proceeds": proceeds in respect of any Bankers'
Acceptance
to be purchased by a CDN B/A Lender on any day under Section 2.25
in an amount
(rounded to the nearest whole Canadian cent, and with one-half of
one Canadian
cent being rounded up) calculated on such day by dividing (a) the
face amount of
such Bankers' Acceptance by (b) the sum of one plus the product of:
(i) the
Discount Rate (expressed as a decimal) applicable to such Bankers'
Acceptance
and (ii) a fraction, the numerator of which is the number of days
in the term of
such Bankers' Acceptance commencing on the date of acceptance of
the Bankers'
Acceptance and ending on, but excluding, the maturity date of such
Bankers'
Acceptance, and the denominator of which is 365; with such product
being rounded
up or down to the fifth decimal place and .000005 being rounded
up.
"Bankers' Acceptance" or "B/A": a Draft denominated in CDN
Dollars
drawn by the CDN Borrower and accepted by the CDN Revolving Lenders
or the C$
CDN Term Lenders, as the case may be, in accordance with the
provisions of
Section 2.25 hereof, and includes a depository bill issued in
accordance with
the Depository Bills and Notes Act (Canada) or Discount Note (in
the case of (x)
a CDN Revolving Lender that does not accept bankers' acceptances
and (y) all C$
CDN Term Lenders as provided below); provided, that (i)
notwithstanding the
foregoing, all borrowings by way of Bankers' Acceptances under the
C$ CDN Term
Facility shall at all times be made (or continued or converted, as
applicable)
by way of Discount Notes as contemplated by Section 2.25(p)(ii) and
(ii) any
reference in this Agreement to the amount or principal amount of a
Bankers'
Acceptance shall mean the full Face Amount thereof.
"Benefitted Lender": as defined in Section 10.7(a).
<PAGE>
4
"Board": the Board of Governors of the Federal Reserve System of
the
United States (or any successor).
"Borrowers": the collective reference to the US Borrower and the
CDN
Borrower.
"Borrowing Date": any Business Day specified by the relevant
Borrower
as a date on which such Borrower requests the relevant Lenders to
make Loans
hereunder.
"Business": the provision of specialized software, outsourcing
services and application service provider solutions and various
services
relating, incidental or ancillary thereto.
"Business Day": a day other than a Saturday, Sunday or other day
on
which commercial banks in New York City (or, with respect to Loans
made to the
CDN Borrower, Toronto, Ontario) are authorized or required by law
to close,
provided, that with respect to notices and determinations in
connection with,
and payments of principal and interest on, Eurocurrency Loans, such
day is also
a day for trading by and between banks in deposits in the relevant
currency in
the interbank eurocurrency market.
"Canadian Administrative Agent": JPMorgan Chase Bank, an
authorized
foreign bank under the Bank Act (Canada), acting through its
Toronto Branch, as
the Canadian administrative agent for the Lenders under this
Agreement and the
other Loan Documents, together with any of its successors.
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by either Borrower or any of its
Subsidiaries that
are not Canadian Pension Plans, including, without limitation, all
profit
sharing, savings, post-retirement, supplemental retirement,
retiring allowance,
severance, pension, deferred compensation, welfare, bonus,
incentive
compensation, phantom stock, legal services, supplementary
unemployment benefit
plans or arrangements and all life, health, dental and disability
plans and
arrangements, and in which the employees or former employees of
either Borrower
or its Subsidiaries employed in Canada participate or are eligible
to
participate.
"Canadian Pension Plans": all "registered pension plans", as
defined
in the ITA, established, maintained or contributed to by either
Borrower or any
of its Subsidiaries for its employees or former employees employed
in Canada.
"Capital Expenditures": for any period, with respect to any
Person,
the aggregate of all cash expenditures by such Person for the
acquisition or
leasing (pursuant to a capital lease but excluding any amount
representing
capitalized interest) of fixed or capital assets or additions to
equipment
(including replacements, capitalized repairs and improvements
during such
period) which are required to be capitalized under GAAP on a
balance sheet of
such Person, provided, that in any event the term "Capital
Expenditures" shall
exclude: (i) any Permitted Acquisition and any other Investment
permitted
hereunder; (ii) any expenditures to the extent financed with any
Reinvestment
Deferred Amount; (iii) expenditures for leasehold improvements for
which such
Person is reimbursed or receives a credit; and (iv) expenditures to
the extent
they are made with the proceeds of equity contributions (other than
Specified
Equity Contributions) from Holdings to the US Borrower after the
Closing Date.
"Capital Lease Obligations": as 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.
<PAGE>
5
"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).
"Cash Equivalents": (a) marketable direct obligations issued by,
or
unconditionally guaranteed by, the United States government or
issued by any
agency thereof and backed by the full faith and credit of the
United States, in
each case maturing within one year from the date of acquisition;
(b)
certificates of deposit, time deposits, eurodollar time deposits or
overnight
bank deposits having maturities of one year or less from the date
of acquisition
issued by any Lender or by any commercial bank organized under the
laws of the
United States or any state thereof having combined capital and
surplus of not
less than $500,000,000; (c) commercial paper of an issuer rated at
least A-2 by
S&P or P-2 by Moody's, or carrying an equivalent rating by a
nationally
recognized rating agency if both of the two named rating agencies
cease
publishing ratings of commercial paper issuers generally, and
maturing within
one year 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
government; (e)
securities with maturities of one year or less from the date of
acquisition
issued or fully guaranteed by any state, commonwealth or territory
of the United
States, by any political subdivision or taxing authority of any
such state,
commonwealth or territory or by any foreign government, the
securities of which
state, commonwealth, territory, political subdivision, taxing
authority or
foreign government (as the case may be) are rated at least A by
S&P or A by
Moody's; (f) securities with maturities of one year 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 any of clauses (a) through
(f) of this
definition; or (h) money market funds that (i) purport to comply
generally with
the criteria set forth in SEC Rule 2a-7 under the Investment
Company Act of
1940, as amended, (ii) are rated AAA by S&P or Aaa by Moody's
or carrying an
equivalent rating by a nationally recognized rating agency, and
(iii) have
portfolio assets of at least $5,000,000,000.
"CDN ABR": for any day, a rate per annum equal to the higher of
(a)
the rate of interest per annum publicly announced from time to time
by the
Canadian Administrative Agent as its reference rate of interest
then in effect
for determining interest rates on commercial loans denominated in
Dollars made
by it in Canada and (b) the Federal Funds Effective Rate in effect
on such day
plus 1/2 of 1%.
"CDN ABR Loans": Loans the rate of interest applicable to which
is
based upon the CDN ABR.
"CDN Amalgamation": the transactions pursuant to which NSULC 2
shall
have acquired all of the equity interests of the CDN Borrower as a
result of the
amalgamation of the CDN Borrower (as such entity exists prior to
such
transactions), NSULC 1 and NSULC 4 with an into NSULC 3 to form the
CDN Borrower
(as such entity exists immediately following such amalgamation),
pursuant to the
CDN Amalgamation Agreement.
"CDN Amalgamation Agreement": that certain Amalgamation Agreement,
to
be dated on or about November 24, 2005, by and among NSULC 1, NSULC
3, NSULC 4
and the CDN Borrower.
"CDN B/A Lenders": the collective reference to the C$ CDN Term
Lenders
and the CDN Revolving Lenders.
"CDN Borrower": as defined in the preamble hereto, provided that
for
the avoidance of doubt, it is understood and agreed that the term
"CDN Borrower"
as used in this Agreement shall mean,
<PAGE>
6
(i) at any time prior to the consummation of the CDN Amalgamation,
SS&C
Technologies Canada Corp., a Nova Scotia unlimited company, as such
entity
exists at such time, and (ii) upon and at any time after the
consummation of the
CDN Amalgamation, SS&C Technologies Canada Corp., a Nova Scotia
unlimited
company, as such entity exists after giving effect to the CDN
Amalgamation.
"CDN Borrower Subscription Agreement": the forward subscription
agreement dated as of the date hereof by and between the US
Borrower and the CDN
Borrower.
"CDN Dollars" and "C$": freely transferable lawful currency of
Canada
(expressed in Canadian dollars).
"CDN Funding Office": the office of the Canadian Administrative
Agent
specified in Section 10.2 or such other office in Canada as may be
specified
from time to time by the Canadian Administrative Agent as its
funding office by
written notice to the Borrowers and the Lenders.
"CDN Guarantee and Collateral Agreement": the Guarantee and
Collateral
Agreement to be executed and delivered by the CDN Loan Parties,
substantially in
the form of Exhibit A-2, as the same may be amended, supplemented
or otherwise
modified from time to time.
"CDN Issuing Lender": (i) in the case of any CDN Letter of
Credit
issued for the account of any CDN Loan Party, (A) JPMorgan Chase
Bank, Toronto
Branch or (B) any other CDN Revolving Lender from time to time so
designated by
the CDN Borrower with the consent of such CDN Revolving Lender and
the Canadian
Administrative Agent (such consent of the Canadian Administrative
Agent not to
be unreasonably withheld, conditioned or delayed) and (ii) in the
case of any
CDN Letter of Credit issued for the account of any US Loan Party,
(A) JPMorgan
Chase Bank or (B) any Related Affiliate of a CDN Revolving Lender
designated as
such by such Lender in accordance with Section 2.4(b) and
designated as CDN
Issuing Lender by the CDN Borrower with the consent of such Related
Affiliate
and the Canadian Administrative Agent (such consent of the
Canadian
Administrative Agent not to be unreasonably withheld, conditioned
or delayed).
"CDN L/C Obligations": at any time, an amount equal to the US
Dollar
Amount of the sum of (a) the aggregate then undrawn and unexpired
amount of the
then outstanding CDN Letters of Credit and (b) the aggregate amount
of drawings
under CDN Letters of Credit that have not then been reimbursed.
"CDN L/C Participants": the collective reference to all the CDN
Revolving Lenders other than the applicable CDN Issuing Lender.
"CDN Lenders": the collective reference to the CDN Term Lenders
and
the CDN Revolving Lenders.
"CDN Letters of Credit": as defined in Section 3.1(a).
"CDN Loan Party": each of the CDN Borrower and each CDN
Subsidiary
Guarantor.
"CDN
Loans": the collective reference to the CDN Revolving Loans and
the CDN Term Loans.
"CDN Obligations": the unpaid principal of and interest on
(including,
without limitation, interest accruing after the maturity of the
Loans made to
the CDN Borrower and Reimbursement Obligations owing by the CDN
Borrower and
interest accruing after the filing of any
<PAGE>
7
petition in bankruptcy, or the commencement of any insolvency,
reorganization or
like proceeding, relating to the CDN Borrower, whether or not a
claim for
post-filing or post-petition interest is allowed in such
proceeding) the Loans
made to the CDN Borrower, the full Face Amount of all outstanding
B/As, the
Reimbursement Obligations owing by the CDN Borrower and all other
obligations
and liabilities of the CDN Borrower to the Administrative Agent,
the Canadian
Administrative Agent or to any CDN Lender (or, in the case of
Specified Hedge
Agreements entered into by a CDN Loan Party, of such CDN Loan Party
to the
Administrative Agent, the Canadian Administrative Agent, any CDN
Lender or any
affiliate of any CDN 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, any CDN Letter of Credit, any B/A, any Specified Hedge
Agreement
entered into by a CDN Loan Party or (to the extent the CDN Borrower
so agrees in
the applicable agreements therefor) cash management arrangements
with CDN
Lenders 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 Administrative Agent,
the Canadian
Administrative Agent or to any CDN Lender that are required to be
paid by the
CDN Borrower pursuant hereto) or otherwise; provided, that (a)
obligations of
the CDN Borrowers or any of the CDN Subsidiaries under any
Specified Hedge
Agreement or cash management agreement (if applicable) shall be
secured and
guaranteed pursuant to the relevant Security Documents only to the
extent that,
and for so long as, the other CDN Obligations are so secured and
guaranteed and
(b) 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 or cash management agreement (if
applicable).
Notwithstanding anything herein to the contrary, the term "CDN
Obligations"
shall only refer to obligations of the CDN Loan Parties hereunder
and under the
other Loan Documents and shall not refer to obligations of
Holdings, the US
Borrower and the Domestic Subsidiaries.
"CDN Prime Rate": the higher of (a) the rate of interest
publicly
announced by the Canadian Administrative Agent from time to time as
its
reference rate then in effect for determining interest rates on CDN
Dollar
denominated commercial loans made in Canada and (b) the average as
determined by
the Canadian Administrative Agent of the annual rates for Bankers'
Acceptances
in CDN Dollars displayed and identified as such on the "Reuters
screen CDOR
page" for a one-month period at approximately 10:00 A.M. on such
day, or if such
day is not a Business Day, then on the immediately preceding
Business Day, plus
0.75%; provided, that if such rates do not appear on the Reuters
screen CDOR
page, then the CDOR Rate for such period shall be selected as of
the immediately
preceding Business Day for which such rate was available.
"CDN Prime Loans": Loans the rate of interest applicable to which
is
based upon the CDN Prime Rate.
"CDN Reorganization": the series of transactions contemplated by
the
CDN Reorganization Documents and any other transactions or actions
incidental
thereto.
"CDN Reorganization Documents": (1) the Transfer Agreement (Step
19),
to be dated on or about November 24, 2005, by and between NSULC 2
and NSULC 3,
(2) the Transfer Agreement (Step 20), to be dated on or about
November 24, 2005,
by and between NSULC 4 and Ontario LP, (3) the CDN Amalgamation
Agreement, and
(4) the Forward Subscription Agreement, to be dated on or about
November 24,
2005, between the Company and the CDN Borrower.
"CDN Revolving Commitment": as to any CDN Revolving Lender, the
obligation of such CDN Revolving Lender, if any, to make CDN
Revolving Loans and
participate in CDN Swingline Loans and CDN Letters of Credit in an
aggregate
principal and/or face amount not to exceed the amount
<PAGE>
8
set forth under the heading "CDN Revolving Commitment" opposite
such Lender's
name on Schedule 1.1A or in the Assignment and Assumption pursuant
to which such
CDN Revolving Lender became a party hereto, as the same may be
changed from time
to time pursuant to the terms hereof. The original amount of the
Total CDN
Revolving Commitments is $10,000,000.
"CDN Revolving Extensions of Credit": as to any CDN Revolving
Lender
at any time, an amount equal to the US Dollar Amount of the sum of
(a) the
aggregate principal amount of all CDN Revolving Loans held by such
Lender then
outstanding, (b) such CDN Revolving Lender's CDN Revolving
Percentage of the CDN
L/C Obligations then outstanding, (c) the Face Amount of all B/As
accepted by
such CDN Revolving Lender then outstanding (without duplication)
under the CDN
Revolving Facility and (d) such Lender's CDN Revolving Percentage
of the
aggregate principal amount of CDN Swingline Loans then
outstanding.
"CDN Revolving Facility": as defined in the "Facility"
definition.
"CDN Revolving Lender": each Lender that has a CDN Revolving
Commitment or that holds CDN Revolving Loans; provided, that (a) as
of the
Closing Date, any such Lender shall be itself or shall operate
through an
applicable lending office which is either (x) resident in Canada
for the
purposes of the ITA, or (y) deemed to be resident in Canada for
purposes of Part
XIII of the ITA in respect of all amounts paid or credited to such
Lender under
the CDN Revolving Facility, and (b) to the extent that all or any
portion of
such Loans shall be made or such Commitments shall be allocated to
the US
Borrower, or any CDN Letters of Credit shall be issued for the
account of any US
Loan Party, the relevant CDN Revolving Lender shall be the Related
Affiliate of
such CDN Revolving Lender designated by such Lender in accordance
with Section
2.4(b).
"CDN Revolving Loans": as defined in Section 2.4(b).
"CDN Revolving Percentage": as to any CDN Revolving Lender at
any
time, the percentage which such CDN Revolving Lender's CDN
Revolving Commitment
then constitutes of the Total CDN Revolving Commitments (or, at any
time after
the CDN Revolving Commitments shall have expired or terminated, the
percentage
which the aggregate principal US Dollar Amount of such Lender's CDN
Revolving
Loans then outstanding constitutes of the aggregate principal US
Dollar Amount
of the CDN Revolving Loans then outstanding); provided, that, in
the event that
the CDN Revolving Loans are paid in full prior to the reduction to
zero of the
CDN Revolving Extensions of Credit, the CDN Revolving Percentages
shall be
determined in a manner designed to ensure that the other
outstanding CDN
Revolving Extensions of Credit shall be held by the CDN Revolving
Lenders on a
comparable basis.
"CDN Security Documents": collectively, the CDN Guarantee and
Collateral Agreement, any Mortgages executed by any CDN Loan Party
and all other
security documents hereafter delivered to the Canadian
Administrative Agent
granting a Lien on any Property located in Canada or on any
Property of any CDN
Loan Party to secure the obligations and liabilities of any CDN
Loan Party under
any Loan Document, as the same may be amended, supplemented or
otherwise
modified from time to time.
"CDN Subsidiary": any Subsidiary organized under the laws of Canada
or
any province thereof.
"CDN Subsidiary Guarantor": each CDN Subsidiary (other than any
Immaterial Subsidiary and any Subsidiary that will cease to exist
pursuant to
the Company Reorganization) of the US Borrower.
<PAGE>
9
"CDN Swingline Commitment": the obligation of the CDN Swingline
Lender
to make CDN Swingline Loans pursuant to Section 2.6(b) in an
aggregate principal
amount at any one time outstanding not to exceed C$5,000,000.
"CDN Swingline Lender": Canadian Imperial Bank of Commerce, in
its
capacity as the lender of CDN Swingline Loans.
"CDN Swingline Loans": as defined in Section 2.6(b).
"CDN Term Commitments": the collective reference to the C$ CDN
Term
Commitments and the US$ CDN Term Commitments.
"CDN Term Facilities": the collective reference to the C$ CDN
Term
Facility and US$ CDN Term Facility.
"CDN Term Lenders": the collective reference to the C$ CDN Term
Lenders and the US$ CDN Term Lenders.
"CDN Term Loans: the collective reference to the C$ CDN Term Loans
and
the US$ CDN Term Loans.
"C$ CDN Revolving Loans": as defined in Section 2.4(b).
"C$ CDN Term Commitment": as to any Lender, the obligation of
such
Lender, if any, to make a C$ CDN Term Loan to the CDN Borrower in a
principal
amount not to exceed the amount set forth under the heading "C$ CDN
Term
Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate
amount of the C$ CDN Term Commitments is C$68,358,800.
"C$ CDN Term Facility": as defined in the definition of
"Facility".
"C$ CDN Term Facility Pricing Grid": the table set forth below.
<TABLE>
<CAPTION>
Applicable Margin for C$ CDN
Term Loans that are Bankers' Applicable Margin for C$ CDN
Term
Consolidated Total Leverage Ratio
Acceptances
Loans that are CDN Prime Loans
--------------------------------- ----------------------------
---------------------------------
<S>
<C>
<C>
>
or = 4.50 : 1.00
2.75%
1.75%
< 4.50 : 1.00
2.50%
1.50%
</TABLE>
Changes in the Applicable Margin with respect to C$ CDN Term
Loans
resulting from changes in the Consolidated Total Leverage Ratio
shall become
effective on the date (the "Adjustment Date") on which financial
statements are
delivered to the Lenders pursuant to Section 6.1 and shall remain
in effect
until the next change to be effected pursuant to this paragraph. If
any
financial statements referred to above are not delivered within the
time periods
specified in Section 6.1, then, until such financial statements are
delivered,
Consolidated Total Leverage Ratio as at the end of the fiscal
period that would
have been covered thereby shall for the purposes of this definition
be deemed to
be 4.50 to 1. In addition, at all times while an Event of Default
set forth in
Section 8(a) or 8(f) shall have occurred and be continuing, the
Consolidated
Total Leverage Ratio shall for the purposes of this Pricing
<PAGE>
10
Grid be deemed to be 4.50 to 1. Each determination of the
Consolidated Total
Leverage Ratio pursuant to this Pricing Grid shall be made for the
periods and
in the manner contemplated by Section 7.1(a).
"C$ CDN Term Lender": each Lender that has a C$ CDN Term Commitment
or
that holds a C$ CDN Term Loan.
"C$ CDN Term Loan": as defined in Section 2.1.
"C$ CDN Term Percentage": as to any C$ CDN Term Lender, (i) at
any
time prior to the Closing Date, the percentage which the sum of
such Lender's C$
CDN Term Commitments then constitutes of the aggregate C$ CDN Term
Commitments
and (ii) at any time after the Closing Date, the percentage which
the aggregate
principal amount of such Lender's C$ CDN Term Loans then
outstanding constitutes
of the aggregate principal amount of the C$ CDN Term Loans then
outstanding.
"CDOR Rate": on any date of determination as to any term of any
Bankers' Acceptances in CDN Dollars, the rate determined as being
the arithmetic
average of the rates per annum applicable to CDN Dollar bankers'
acceptances
having a comparable term to maturity as the applicable term for the
requested
Bankers' Acceptances that appear on the Reuters Screen CDOR Page as
at
approximately 10:00 A.M., New York City time, on the date of
determination;
provided, however, that if no such rate appears on the Reuters
Screen CDOR Page
as contemplated, then the CDOR Rate on any date shall be calculated
as the
arithmetic mean of the rates for the term and amount referred to
above
applicable to CDN Dollar bankers' acceptances quoted by the
Schedule I Reference
Lenders as of 10:00 A.M., New York City time, on such date.
"Certificated Security": as defined in the Guarantee and
Collateral
Agreement.
"Chattel Paper": as defined in the Guarantee and Collateral
Agreement
or the CDN Guarantee and Collateral Agreement, as applicable.
"Closing Date": the date on which the conditions precedent set
forth
in Section 5.1 shall have been satisfied and the initial Loans
hereunder shall
have been funded, which date is November 23, 2005.
"Closing Date Material Adverse Effect": any event,
circumstance,
development, change or effect that is, individually or in the
aggregate with all
other events, circumstances, developments, changes and effects,
materially
adverse to the business, condition (financial or otherwise) or
results of
operations of the Surviving US Borrower and its Subsidiaries, taken
as a whole;
provided that none of the following shall constitute, or shall be
considered in
determining whether there has occurred, and no change,
circumstance, event or
effect resulting primarily from any of the following shall
constitute, a Closing
Date Material Adverse Effect: (i) the announcement of the execution
of the
Initial Merger Agreement, or the pendency of consummation of the
Merger, (ii)
changes in the national or world economy or financial markets as a
whole or
changes in general economic conditions that affect the industries
in which the
Surviving US Borrower and its Subsidiaries conduct their business,
so long as
such conditions do not adversely affect the Surviving US Borrower
or its
Subsidiaries in a materially disproportionate manner relative to
other similarly
situated participants in the industries or markets in which they
operate, (iii)
any change in any applicable law, rule or regulation or generally
accepted
accounting principles or interpretation thereof after the date
hereof, (iv) any
failure by the Surviving US Borrower to meet any published or
internally
prepared estimates of revenues or earnings for any period ending on
or after
July 28, 2005 and prior to the Closing Date (it being understood
that the facts
and circumstances giving rise to such failure may be deemed to
constitute, and
may be taken into account in determining whether there has been, a
Closing Date
Material Adverse Effect if such facts and
<PAGE>
11
circumstances are not otherwise included in clauses (i)-(iii) of
this
definition), and (v) a decline in the price of the Surviving US
Borrower's
common stock on the NASDAQ National Market (it being understood
that the facts
and circumstances giving rise to such decline may be deemed to
constitute, and
may be taken into account in determining whether there has been, a
Closing Date
Material Adverse Effect if such facts and circumstances are not
otherwise
included in clauses (i)-(iii) of this definition).
"Closing Date Reorganization": the series of transactions
contemplated
by the Closing Date Reorganization Documents and any other
transactions or
actions incidental thereto.
"Closing Date Reorganization Documents": collectively, (1) the
Contribution and Subscription Agreement (Step 4), dated as of the
date hereof,
by and between Holdings and the Initial US Borrower, (2) the
Transfer Agreement
(Step 5), dated as of the date hereof, by and between the Initial
US Borrower
and NSULC 2, (3) the Contribution and Subscription Agreement (Step
6), dated as
of the date hereof, by and between NSULC 2 and Sunshine Merger II,
(4) the
Contribution Agreement, dated as of the date hereof, by and between
Holdings and
William C. Stone, (5) the Contribution and Subscription Agreement
(Step 8),
dated as of the date hereof, by and between Holdings and the
Initial US
Borrower, (6) the Transfer Agreement (Step 9), dated as of the date
hereof, by
and between the Initial US Borrower and NSULC 2, (7) the
Contribution and
Subscription Agreement (Step 11A), dated as of the date hereof, by
and between
NSULC 2 and Sunshine Merger II, (8) the Contribution and
Subscription Agreement
(Step 11F), dated as of the date hereof, by and between Sunshine
Merger II and
Sunshine Merger Corporation, (9) the Sale and Subscription
Agreement (Step 12),
dated as of the date hereof, by and between NSULC 2 and the Initial
US Borrower,
(10) the Contribution and Subscription Agreement (Step 13), dated
as of the date
hereof, by and between NSULC 2 and Sunshine Merger II, (11) the
Merger
Agreements, (12) the Binding Plan of Reorganization (Steps 16-18),
dated as of
the date hereof, by and among the Surviving US Borrower, the
Initial U.S.
Borrower, NSULC 1 and NSULC 2, (13) the Distribution Agreement,
dated as of the
date hereof, between the Surviving US Borrower and NSULC 2, (14)
the Sale and
Transfer Agreement (Step 17), dated as of the date hereof, by and
between NSULC
2 and the Initial US Borrower and (15) the Transfer Agreement (Step
18A), dated
as of the date hereof, by and between NSULC 1 and New Canco.
"Code": the Internal Revenue Code of 1986, as amended from time
to
time.
"Co-Investors": any co-investors designated by the Sponsor who
may
own, directly or indirectly, no more than 15%, in the aggregate, of
the Capital
Stock of Holdings but excluding transferees who are not Permitted
Investors.
"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": as to any Lender, the sum of the Term Commitments
and
the Revolving Commitments of such Lender.
"Commitment Fee Rate": 1/2 of 1% per annum; provided, that on
and
after the first Adjustment Date occurring after the completion of
the fiscal
quarter of the US Borrower ending March 31, 2006, the Commitment
Fee Rate will
be determined pursuant to the Revolving Facility Pricing Grid.
"Committed Reinvestment Amount": as defined in the definition
of
"Reinvestment Prepayment Amount".
"Commonly Controlled Entity": an entity, whether or not
incorporated,
that is under common control with either Borrower within the
meaning of Section
4001 of ERISA or is part of a group
<PAGE>
12
that includes either Borrower and that is treated as a single
employer under
Section 414(b), (c), (m) or (o) of the Code.
"Commonly Controlled Plan": as defined in Section 4.12(b).
"Company Reorganization": the collective reference to the Closing
Date
Reorganization and the CDN Reorganization.
"Compliance Certificate": a certificate duly executed by a
Responsible
Officer substantially in the form of Exhibit B.
"Confidential Information": as defined in Section 10.15.
"Consolidated Current Assets": 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 the US Borrower and its Subsidiaries
at such date.
"Consolidated Current Liabilities": 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 the US
Borrower and its Subsidiaries at such date, but excluding (a) the
current
portion of any Indebtedness of the US Borrower and its Subsidiaries
and (b)
without duplication, all Indebtedness consisting of Revolving Loans
or Swingline
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)
Consolidated Net Interest Expense of such Person and its
Subsidiaries,
amortization or writeoff of debt discount and debt issuance costs
and
commissions, discounts and other fees and charges associated with
Indebtedness
(including commitment and administrative fees and charges with
respect to the
Facilities), (c) depreciation and amortization expense, (d)
amortization or
impairment 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, expenses or losses, including in relation to earn-outs and
similar
obligations (except to the extent such charges, expenses or losses
represent an
accrual of or reserve for cash expenses in any future period or an
amortization
of a prepaid cash expense paid in a prior period), (g)
restructuring and
integration costs, (h) stock-option based compensation expenses,
(i) transaction
costs, fees and expenses (including those relating to the Merger),
(j) all fees
and expenses paid pursuant to the Management Agreement, (k) the
non-cash portion
of straight-line rent expense, (l) proceeds from any business
interruption
insurance (in the case of this clause (l) to the extent not
reflected as revenue
or income in such statement of such Consolidated Net Income), (m)
losses
recognized and expenses incurred in connection with the effect of
currency and
exchange rate fluctuations on intercompany balances and other
balance sheet
items and (n) cash expenses relating to earn-outs and similar
obligations 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 Consolidated Net 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), (c) any other non-cash income or gains (other than the
accrual of
revenue in the ordinary course), all as determined on a
consolidated basis, (d)
cash payments in connection with "straight-line" rent expense which
exceed the
<PAGE>
13
amount expensed in respect of such rent expense and (e) gains
realized and
income accrued in connection with the effect of currency and
exchange rate
fluctuations on intercompany balances and other balance sheet
items; provided,
that (i) Consolidated EBITDA of the US Borrower and its
Subsidiaries shall be
calculated giving effect to the adjustments set forth on Schedule
1.1B and (ii)
for purposes of calculating Consolidated EBITDA of the US Borrower
and its
Subsidiaries for any period, (A) the Consolidated EBITDA
(determined in
accordance with GAAP) of any Person acquired by the US Borrower or
its
Subsidiaries during such period shall be included on a pro forma
basis for such
period (but assuming the consummation of such acquisition and the
incurrence or
assumption of any Indebtedness in connection therewith occurred on
the first day
of such period, and assuming any synergies and cost savings to the
extent
certified by the US Borrower as having been determined in good
faith to be
reasonably anticipated to be realizable within 12 months following
such
acquisition and (B) the Consolidated EBITDA of any Person Disposed
of by the US
Borrower or its Subsidiaries during such period shall be excluded
for such
period (assuming the consummation of such Disposition and the
repayment of any
Indebtedness in connection therewith occurred on the first day of
such period).
For purposes of determining compliance with the financial covenants
set forth in
Section 7.1, any equity contribution made to the US Borrower by
Holdings on or
after the first day of any fiscal quarter and prior to the day that
is 10 days
after the day on which financial statements are required to be
delivered for
such fiscal quarter (it being understood that each such
contribution shall be
credited with respect to only one fiscal quarter, provided that
such credit
shall be effective as to such fiscal quarter for all periods in
which such
fiscal quarter is included) will, at the request of the US
Borrower, be deemed
to increase, dollar for dollar, Consolidated EBITDA for such fiscal
quarter for
the purposes of determining compliance with such financial
covenants at the end
of such fiscal quarter and applicable subsequent periods (any such
equity
contribution so included in the calculation of Consolidated EBITDA,
a "Specified
Equity Contribution"), provided that (a) in each four fiscal
quarter period
there shall be a period of at least two fiscal quarters in which no
Specified
Equity Contribution is made and (b) the amount of any Specified
Equity
Contribution shall be no greater than the amount required to cause
the US
Borrower to be in compliance with the financial covenants set forth
in Section
7.1. Notwithstanding the forgoing, Consolidated EBITDA shall be
calculated
without giving effect to the non-cash effects of purchase
accounting or similar
adjustments required or permitted by GAAP in connection with the
Merger or any
Permitted Acquisition
"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 US Borrower and
its
consolidated Subsidiaries 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
the US Borrower or is merged into or consolidated with the US
Borrower or any of
its Subsidiaries and (b) the income (or deficit) of any Person
(other than a
Subsidiary of the US Borrower) in which the US Borrower or any of
its
Subsidiaries has an ownership interest, except to the extent that
any such
income is actually received by the US Borrower or such Subsidiary
in the form of
dividends or similar distributions.
"Consolidated Net Interest Coverage Ratio": for any period, the
ratio
of (a) Consolidated EBITDA of the US Borrower and its Subsidiaries
for such
period to (b) Consolidated Net Interest Expense of the US Borrower
and its
Subsidiaries for such period.
"Consolidated Net Interest Expense": of any Person for any period,
(a)
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,
minus (b)
total cash interest income of such Person and its Subsidiaries for
such period,
in each case determined in accordance with GAAP.
<PAGE>
14
"Consolidated Total Leverage": at any date, the aggregate
principal
amount of all Funded Debt of the US Borrower and its Subsidiaries
at such date,
minus the amount, up to a maximum amount of $30,000,000, of cash
and Cash
Equivalents (other than any restricted cash or Cash Equivalents)
held by the US
Borrower and its Subsidiaries on such date, in each case determined
on a
consolidated basis in accordance with GAAP.
"Consolidated Total Leverage Ratio": as at the last day of any
period
of four consecutive fiscal quarters of the US Borrower, the ratio
of (a)
Consolidated Total Leverage on such day to (b) Consolidated EBITDA
of the US
Borrower and its Subsidiaries for such period.
"Consolidated Working Capital": at any date, the difference of
(a)
Consolidated Current Assets on such date less (b) Consolidated
Current
Liabilities on such date.
"Continuing Directors": the directors of Holdings on the Closing
Date
and each other director of Holdings, if, in each case, such other
director's
nomination for election to the board of directors of Holdings is
recommended by
at least 51% of the then Continuing Directors or such other
director receives
the vote of the Sponsor and its Affiliates (excluding any portfolio
companies of
the Sponsor) in his or her election by the shareholders of
Holdings.
"Contract Period": the term of a Bankers' Acceptance selected by
the
CDN Borrower in accordance with Section 2.25 commencing on the
borrowing date,
rollover date or conversion date of such Bankers' Acceptance, as
the case may
be, of such Bankers' Acceptance and expiring on a Business Day
which shall be
either 30 days, 60 days, 90 days or 180 days thereafter, in all
cases subject to
availability; provided, that no Contract Period shall extend beyond
the
Revolving Termination Date.
"Contractual Obligation": as 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.
"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.
"Differential Amount": as defined in Section 7.5(l).
"Discount Note": as defined in Section 2.25.
"Discount Note Lender": as defined in Section 2.25.
"Discount Rate": with respect to any Bankers' Acceptance, (a) for
a
Lender which is a Schedule I bank under the Bank Act (Canada), the
CDOR Rate
(for the applicable term) and (b) for other Lenders, the rate
determined by the
Canadian Administrative Agent as being the arithmetic average
(rounded upwards
to the nearest multiple of 0.01%) of the discount rates, calculated
on the basis
of a year of 365 days, of the Schedule II/III Reference Lenders
established in
accordance with their normal practices at or about 10:00 A.M. (New
York City
time) on the issuance date of such Bankers' Acceptance, provided,
that the
Discount Rate of such other Lenders shall not exceed for any issue
the Discount
Rate established pursuant to (a) above plus 0.10% per annum.
<PAGE>
15
"Disposition": with respect to any Property, any sale, sale and
leaseback, assignment, conveyance, transfer or other effectively
complete
disposition thereof. The terms "Dispose" and "Disposed of" shall
have
correlative meanings.
"Disqualified Capital Stock": Capital Stock that (a) requires
the
payment of any dividends (other than dividends payable solely in
shares of
Qualified Capital Stock), (b) matures or is mandatorily redeemable
or subject to
mandatory repurchase or redemption or repurchase at the option of
the holders
thereof, in each case in whole or in part and whether upon the
occurrence of any
event, pursuant to a sinking fund obligation on a fixed date or
otherwise
(including as the result of a failure to maintain or achieve any
financial
performance standards), prior to the date that is 91 days after the
final
scheduled maturity date of the Term Loans (other than (i) upon
payment in full
of the Obligations and termination of the Commitments or (ii) upon
a "change in
control", provided, that any payment required pursuant to this
clause (ii) is
contractually subordinated in right of payment to the Obligations
on terms
reasonably satisfactory to the Administrative Agent and such
requirement is not
applicable in more circumstances than pursuant to the change of
control
provisions in the Senior Subordinated Note Indenture or in any
indenture with
respect to any Additional Senior Subordinated Notes) or (c) are
convertible or
exchangeable, automatically or at the option of any holder thereof,
into any
Indebtedness, Capital Stock or other assets other than Qualified
Capital Stock.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Domestic Subsidiary": any Subsidiary of the US Borrower
organized
under the laws of any jurisdiction within the United States.
"Draft": at any time a bill of exchange within the meaning of
the
Bills of Exchange Act (Canada), drawn by the CDN Borrower on a CDN
B/A Lender,
denominated in CDN Dollars and bearing such distinguishing letters
and numbers
as such CDN B/A Lender may determine, but which at such time has
not been
completed or accepted by such CDN B/A Lender.
"Environmental Laws": any and all applicable laws, rules,
orders,
regulations, statutes, ordinances, codes or decrees (including,
without
limitation, common law) of any international authority, foreign
government, the
United States, or any state, provincial, local, municipal or other
governmental
authority, regulating, relating to or imposing liability or
standards of conduct
concerning protection of the environment, as has been, is now, or
at any time
hereafter is, in effect.
"Environmental Liability": any liability, claim, action, suit,
judgment or order under or relating to any Environmental Law for
any damages,
injunctive relief, losses, fines, penalties, fees, expenses
(including
reasonable fees and expenses of attorneys and consultants) or
costs, whether
contingent or otherwise, including those arising from or relating
to: (a)
compliance or non-compliance with any Environmental Law, (b) the
generation,
use, handling, transportation, storage, treatment or disposal of
any Materials
of Environmental Concern, (c) exposure to any Materials of
Environmental
Concern, (d) the Release of any Materials of Environmental Concern
or (e) any
contract, agreement or other consensual arrangement pursuant to
which liability
is assumed or imposed with respect to any of the foregoing.
"Environmental Permits": any and all permits, licenses,
approvals,
registrations, exemptions and other authorizations required under
any
Environmental Law.
<PAGE>
16
"Equity Issuance": any issuance by any Group Member of its
Capital
Stock in a public offering.
"ERISA": the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a
Eurocurrency Loan, the aggregate (without duplication) of the
maximum rates
(expressed as a decimal fraction) of reserve requirements in effect
on such day
(including 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.
"Eurocurrency Base Rate": with respect to each day during each
Interest Period pertaining to a Eurocurrency Loan, the rate per
annum determined
on the basis of the rate for deposits in the relevant currency 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 "Eurocurrency Base Rate" shall be
determined by
reference to such other comparable publicly available service for
displaying
eurocurrency rates as may be selected by the Administrative Agent
or, in the
absence of such availability, by reference to the rate at which
the
Administrative Agent is offered deposits in the relevant currency
at or about
11:00 A.M., local time, two Business Days prior to the beginning of
such
Interest Period in the interbank eurocurrency market where its
eurodollar and
foreign currency and exchange operations are then being conducted
for delivery
on the first day of such Interest Period for the number of days
comprised
therein.
"Eurocurrency Loans": Loans the rate of interest applicable to
which
is based upon the Eurocurrency Rate.
"Eurocurrency Rate": with respect to each day during each
Interest
Period pertaining to a Eurocurrency Loan, a rate per annum
determined for such
day in accordance with the following formula (rounded upward to the
nearest
1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurocurrency Tranche": the collective reference to Eurocurrency
Loans
under a particular Facility 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 Amount": as defined in Section 7.4(c).
"Excess Cash Flow": for any fiscal year of the US 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, amortization and deferred tax expense) deducted in
arriving at
such Consolidated Net Income, (iii) the amount of the decrease, if
any, in
Consolidated Working Capital for such fiscal year and (iv) the
aggregate net
amount of non-cash loss on the Disposition of Property by
<PAGE>
17
the US Borrower and its Subsidiaries 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 minus, (b) the sum,
without duplication
(including, in the case of clauses (ii) and (viii) below,
duplication across
periods; provided, that all or any portion of the amounts referred
to in clauses
(ii) and (viii) below with respect to a period may be applied in
the
determination of Excess Cash Flow for any subsequent period to the
extent such
amounts did not previously result in a reduction of Excess Cash
Flow in any
prior period), of (i) the amount of all non-cash credits included
in arriving at
such Consolidated Net Income (including, without limitation,
deferred tax
credits), (ii) the aggregate amount (A) actually paid by the US
Borrower and its
Subsidiaries in cash during such fiscal year on account of Capital
Expenditures
permitted under this Agreement and Permitted Acquisitions and (B)
committed
during such fiscal year to be used to make Capital Expenditures
permitted under
this Agreement or Permitted Acquisitions which in either case have
been actually
made or consummated or for which a binding agreement exists as of
the time of
determination of Excess Cash Flow for such fiscal year (in each
case under this
clause (ii) other than to the extent any such Capital Expenditure
or Permitted
Acquisition is made (or, in the case of the preceding clause (B),
is expected to
be made) with the proceeds of new long-term Indebtedness or an
Equity Issuance
or with the proceeds of any Reinvestment Deferred Amount), (iii)
the aggregate
amount of all regularly scheduled principal payments of
Indebtedness (including,
without limitation, the Term Loans) of the US Borrower and its
Subsidiaries 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), (iv) the amount of the increase, if any, in
Consolidated Working
Capital for such fiscal year, (v) the aggregate net amount of
non-cash gain on
the Disposition of Property by the US Borrower and its Subsidiaries
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,
(vi) fees
and expenses incurred in connection with the closing of the Merger,
the Senior
Subordinated Notes or the Loan Documents, (vii) purchase price
adjustments paid
or received in connection with the Merger or any Permitted
Acquisition, (viii)
the net amount of Investments made during such period pursuant to
paragraphs
(d), (f), (g), (h), (p) and (r) of Section 7.8 or committed during
such period
to be used to make Investments pursuant to such paragraphs of
Section 7.8 which
have been actually made or for which a binding agreement exists as
of the time
of determination of Excess Cash Flow for such period and (ix) the
amount
(determined by the US Borrower) of such Consolidated Net Income
which is
mandatorily prepaid or reinvested pursuant to Section 2.12(b) (or
as to which a
waiver of the requirements of such Section applicable thereto has
been granted
under Section 10.1) prior to the date of determination of Excess
Cash Flow for
such fiscal year as a result of any Asset Sale or Recovery
Event.
"Excess Cash Flow Application Date": as defined in Section
2.12(d).
"Excess Cash Flow Percentage": 50%; provided, that the Excess
Cash
Flow Percentage shall be reduced to 25% if the Consolidated Total
Leverage Ratio
as of the last day of such fiscal year is not greater than 4.0 to
1.0 and
reduced further to 0% if the Consolidated Total Leverage Ratio as
of the last
day of such fiscal year is not greater than 3.0 to 1.0.
"Existing CDN Credit Agreement": the Credit Agreement, dated
October
5, 2001, as amended, between Financial Models Company, Inc. and the
Canadian
Imperial Bank of Commerce.
"Existing Letter of Credit": that certain Letter of Credit No.
SBTG724743, issued under (and as defined in) the Existing CDN
Credit Agreement,
in favor of J.A.B. Matheson Holdings, Inc., in an aggregate face
amount of
$123,750.
"Existing US Credit Agreement": the Credit Agreement, dated as
of
April 13, 2005, between the Surviving US Borrower and Bank of
America, N.A., as
amended by Amendment No. 1 to
<PAGE>
18
Credit Agreement dated as of May 27, 2005, and by Amendment No. 2
of the Credit
Agreement dated as of July 27, 2005.
"Facility": each of (a) the US Term Commitments and the US Term
Loans
made thereunder (the "US Term Facility"), (b) the C$ CDN Term
Commitments and
the C$ CDN Term Loans made thereunder (the "C$ CDN Term Facility"),
(c) the US$
CDN Term Commitments and the US$ CDN Term Loans made thereunder
(the "US$ CDN
Term Facility" and, together with the US Term Facility and the C$
CDN Term
Facilty, the "Term Facility"), (d) the US Revolving Commitments and
the
extensions of credit made thereunder (the "US Revolving Facility")
and (e) the
CDN Revolving Commitments and the extensions of credit made
thereunder (the "CDN
Revolving Facility" and, together with the US Revolving Facility,
the "Revolving
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 that is a Business Day, the
average of the
quotations for the day of such transactions received by JPMorgan
Chase Bank from
three federal funds brokers of recognized standing selected by
it.
"Fee Payment Date": (a) the third Business Day following the last
day
of each March, June, September and December and (b) the last day of
the
Revolving Commitment Period.
"Foreign Cash Equivalents": (a) certificates of deposit or
bankers
acceptances of, and bank deposits with, any bank organized under
the laws of any
country that is a member of the European Economic Community or
Canada or any
subdivision thereof, whose short-term commercial paper rating from
S&P is at
least A-1 or the equivalent thereof or from Moody's is at least P-1
or the
equivalent thereof, in each case with maturities of not more than
six months
from the date of acquisition, (b) commercial paper maturing not
more than one
year from the date of creation thereof and, at the time of
acquisition, having
the highest rating obtainable from either S&P's or Moody's and
(c) shares of any
money market mutual fund that has its assets invested continuously
in the types
of investments referred to in clauses (a) and (b) above.
"Foreign Subsidiary": any Subsidiary of the US Borrower that is not
a
Domestic Subsidiary.
"Funded Debt": with respect to any Person, all Indebtedness of
such
Person of the types described in clauses (a), (c) and (e) of the
definition of
"Indebtedness".
"GAAP": generally accepted accounting principles in the United
States
as in effect from time to time, except that for purposes of Section
7.1, GAAP
shall be determined on the basis of such principles in effect on
the date hereof
and consistent with those used in the preparation of the most
recent audited
financial statements referred to in Section 4.1(b).
"Governmental Authority": any nation or government, any state,
province or other political subdivision thereof and any
governmental entity
exercising executive, legislative, judicial, regulatory or
administrative
functions of or pertaining to government and, as to any Lender, any
securities
exchange and any self regulatory organization (including the
National
Association of Insurance Commissioners).
"Group Members": the collective reference to Holdings, the
Borrowers
and their respective Subsidiaries.
<PAGE>
19
"Guarantee and Collateral Agreement": the Guarantee and
Collateral
Agreement to be executed and delivered by Holdings, the Initial US
Borrower, the
Surviving US Borrower and each US Subsidiary Guarantor,
substantially in the
form of Exhibit A-1, as the same may be amended, supplemented or
otherwise
modified from time to time.
"Guarantee Obligation": as 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) to induce
the creation
of which the guaranteeing person has issued a guarantee,
reimbursement,
counterindemnity or similar obligation, in either case guaranteeing
or by which
such Person becomes contingently liable for any Indebtedness, net
worth, working
capital earnings, leases, dividends or other distributions upon the
stock or
equity interests (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 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 such guaranteeing person's maximum reasonably
anticipated
liability in respect thereof as determined by the US Borrower in
good faith.
"Guarantors": the collective reference to Holdings and the
Subsidiary
Guarantors.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements
or similar arrangements entered into by either Borrower or its
Subsidiaries
providing for protection against fluctuations in interest rates or
currency
exchange rates or the exchange of nominal interest obligations,
either generally
or under specific contingencies.
"Holdings": Sunshine Acquisition Corporation, a Delaware
corporation.
"Immaterial Subsidiary": on any date, any Subsidiary of the US
Borrower that (i) had less than $5,000,000 of annual revenues as
reflected on
the most recent financial statements delivered pursuant to Section
6.1 prior to
such date and (ii) has been designated as such by the US Borrower
in a written
notice delivered to the Administrative Agent (other than any such
Subsidiary as
to which the US Borrower has revoked such designation by written
notice to the
Administrative Agent); provided that at no time shall the
Immaterial
Subsidiaries so designated by the US Borrower have annual revenues
(as reflected
on the most recent financial statements delivered pursuant to
Section 6.1 prior
to such time) in excess of $10,000,000 in the aggregate.
"Increased Amount Date": as defined in Section 2.28.
"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 (i)
trade payables, current accounts and similar obligations incurred
in the
ordinary course of such Person's business and (ii) earn-outs and
other
contingent payments in respect of acquisitions except to the extent
that the
liability on account of any such earn-out or contingent payment
becomes fixed),
(c) all obligations of such Person evidenced by notes, bonds,
debentures or
other similar
<PAGE>
20
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, in which case only the lesser of the amount of such
obligation and the
fair market value of such Property shall constitute Indebtedness),
(e) all
Capital 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 or similar facilities, (g) all obligations of such
Person in
respect of Disqualified Capital Stock, except for agreements with
directors,
officers and employees to acquire such Capital Stock upon the death
or
termination of employment of such director, officer or employee,
(h) all
Guarantee Obligations of such Person in respect of obligations of
the kind
referred to in clauses (a) through (f) above, and (i) all
obligations of the
kind referred to in clauses (a) through (h) 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 in the event
such Person
has not assumed or become liable for payment of such obligation,
only the lesser
of the amount of such obligation and the fair market value of such
Property
shall constitute Indebtedness).
"Indebtedness for Borrowed Money": to the extent the following
would
be reflected on a consolidated balance sheet of the US Borrower and
its
Subsidiaries prepared in accordance with GAAP, the principal amount
of all
Indebtedness of the US Borrower and its Subsidiaries with respect
to (i)
borrowed money, evidenced by debt securities, debentures,
acceptances, notes or
other similar instruments, (ii) obligations under Capital Leases,
(iii)
reimbursement obligations for letters of credit and financial
guarantees
(without duplication) (other than ordinary course of business
contingent
reimbursement obligations) and (iv) the deferred purchase price of
property or
services (except for accounts payable, deferred compensation
arrangements and
accrued expenses and receipt of progress and advance payments
related to such
purchase price, in each case arising in the ordinary course of
business).
"Initial Merger Agreement": the Agreement and Plan of Merger, dated
as
of July 28, 2005, as amended by Amendment No. 1 to Agreement and
Plan of Merger,
dated as of August 25, 2005, by and among Holdings, the Surviving
US Borrower
and Sunshine Merger Corporation.
"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.
"Instrument": as defined in the Guarantee and Collateral Agreement
or
the CDN Guarantee and Collateral Agreement, as applicable.
"Intellectual Property": the collective reference to all
rights,
priorities and privileges relating to intellectual property,
whether arising
under United States, multinational or foreign laws or otherwise,
including,
without limitation, copyrights, copyright licenses, domain names,
patents,
patent licenses, trademarks, trademark licenses, trade names,
technology,
know-how and processes, 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 ABR Loan (other than any
Swingline Loan), CDN ABR Loan (other than any Swingline Loan) or
CDN Prime Loan,
the third Business Day following 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 Eurocurrency Loan having an Interest
Period of three
months or less, the last day of such Interest Period, (c) as to any
Eurocurrency
Loan having an Interest
<PAGE>
21
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, (d) as to any Loan (other than any
Revolving Loan that
is an ABR Loan, CDN ABR Loan or CDN Prime Loan and any Swingline
Loan), the date
of any repayment or prepayment made in respect thereof and (e) as
to any
Swingline Loan, the day that such Loan is required to be
repaid.
"Interest Period": as to any Eurocurrency Loan, (a) initially,
the
period commencing on the borrowing or conversion date, as the case
may be, with
respect to such Eurocurrency Loan and ending one, two, three or six
or (if
available to all Lenders under the relevant Facility) nine or
twelve months
thereafter, as selected by the relevant Borrower 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 Eurocurrency Loan and ending
one, two, three
or six or (with the consent of each affected Lender under the
relevant Facility)
nine or twelve months thereafter, as selected by the relevant
Borrower by
irrevocable notice to the Administrative Agent or the Canadian
Administrative
Agent, as applicable, not later than 1:00 P.M., New York City time,
on the date
that is 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 that would otherwise extend beyond the
scheduled Revolving Termination Date or beyond the date final
payment is
due
on the Term Loans shall end on the Revolving Termination Date or
such
due
date, as applicable; and
(iii) 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 a calendar month.
"Investments": as defined in Section 7.8.
"Issuing Lenders": the collective reference to each US Issuing
Lender
and each CDN Issuing Lender.
"ITA": the Income Tax Act (Canada), as amended.
"Joinder Agreement": an agreement substantially in the form of
Exhibit
I.
"JPMorgan Chase Bank": JPMorgan Chase Bank, N.A.
"Judgment Conversion Date": as defined in Section 10.13(a).
"Judgment Currency": as defined in Section 10.13(a).
"L/C Commitment": $50,000,000.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the
US L/C Obligations then outstanding and (b) the CDN L/C Obligations
then
outstanding.
<PAGE>
22
"L/C Participants": the collective reference to the US L/C
Participants and the CDN L/C Participants applicable Issuing
Lender.
"Lead Arrangers": the collective reference to J.P. Morgan
Securities
Inc. and Wachovia Capital Markets, LLC.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"Lien": any mortgage, pledge, hypothecation, collateral
assignment,
encumbrance, lien (statutory or other), charge or other security
interest or any
other security agreement of any kind or nature whatsoever
(including any
conditional sale or other title retention agreement and any capital
lease having
substantially the same economic effect as any of the foregoing).
For the
avoidance of doubt, it is understood and agreed that any Group
Member may, as
part of its business, grant licenses to third parties to use
Intellectual
Property owned or developed by, or licensed to, such Group Member.
For purposes
of this Agreement and the other Loan Documents, such licensing
activity shall
not constitute a "Lien" on such Intellectual Property. Each of
the
Administrative Agent, the Canadian Administrative Agent and each
Lender
understands that any such licenses may be exclusive to the
applicable licensees,
and such exclusivity provisions may limit the ability of the
Administrative
Agent or the Canadian Administrative Agent to utilize, sell, lease,
license or
transfer the related Intellectual Property or otherwise realize
value from such
Intellectual Property pursuant hereto.
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": the collective reference to this Agreement,
the
Security Documents, the Applications and the Notes and any
amendment, waiver,
supplement or other modification to any of the foregoing.
"Loan Parties": Holdings, the Borrowers and each Subsidiary
Guarantor.
"Majority Facility Lenders": with respect to any Facility, the
holders
of more than 50% of the aggregate unpaid principal amount of the US
Term Loans
and/or CDN Term Loans, or the Total US Revolving Extensions of
Credit and/or
Total CDN Revolving Extensions of Credit, as the case may be,
outstanding under
such Facility (or, in the case of either Revolving Facility, prior
to any
termination of the Revolving Commitments under such Facility, the
holders of
more than 50% of the Total Revolving Commitments under such
Facility).
"Majority Revolving Facility Lenders": the Majority Facility
Lenders
in respect of the Revolving Facility.
"Majority Term Facility Lenders": the Majority Facility Lenders
in
respect of the Term Facility.
"Management Agreement": the Management Agreement, dated as of the
date
hereof, by and among Holdings, William C. Stone and T.C. Group,
LLC, as in
effect on the Closing Date and as modified from time to time with
the consent of
the Administrative Agent.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or financial condition of the US
Borrower and its
subsidiaries taken as a whole, or (b) the validity or
enforceability of the Loan
Documents or the material rights and remedies of the
<PAGE>
23
Administrative Agent, the Canadian Administrative Agent and the
Lenders
thereunder, in each case, taken as a whole.
"Material Subsidiary": any Subsidiary that is not an Immaterial
Subsidiary.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum
products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants,
contaminants, radioactivity and any other substances that is
defined as
hazardous or toxic under any Environmental Law, that is regulated
pursuant to,
or that could give rise to liability under, any Environmental
Law.
"Merger": the collective reference to the transactions pursuant to
the
Company Reorganization.
"Merger Agreements": collectively, (a) the Initial Merger
Agreement,
(b) the Second Merger Agreement and (c) the Third Merger
Agreement.
"Moody's": Moody's Investors Service.
"Mortgage": any mortgage, deed of trust, hypothec or other
similar
document made by any Loan Party in favor of, or for the benefit of,
the
Administrative Agent (or the Canadian Administrative Agent, as the
case may be)
for the benefit of the relevant Lenders, in form and substance
reasonably
satisfactory to the Administrative Agent and the US Borrower
(taking into
account the law of the jurisdiction in which such mortgage, deed of
trust,
hypothec or similar document is to be recorded), as the same may be
amended,
supplemented 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.
"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 attorneys' fees, accountants' fees,
investment banking
fees, consulting 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 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 (b) in
connection
with any issuance or sale of debt securities or instruments or the
incurrence of
Funded Debt, the cash proceeds received from such issuance or
incurrence, net of
attorneys' fees, investment banking fees, accountants' fees,
consulting fees,
underwriting discounts and commissions and other customary fees and
expenses
actually incurred in connection therewith.
"New Canco": 3112755 Nova Scotia Company, a Nova Scotia
unlimited
company.
"New Term Loans": as defined in Section 2.28.
"New Term Loan Commitments": as defined in Section 2.28.
"Non-Excluded Taxes": as defined in Section 2.20(a).
<PAGE>
24
"Non-Guarantor Subsidiary": any Subsidiary of either Borrower which
is
not a Subsidiary Guarantor.
"Non-US Lender": as defined in Section 2.20(d).
"Note": any promissory note evidencing any Loan.
"NSULC 1": 3098593 Nova Scotia Company, a Nova Scotia unlimited
company.
"NSULC 2": 3105198 Nova Scotia Company, a Nova Scotia unlimited
company.
"NSULC 3": 3112753 Nova Scotia Company, a Nova Scotia unlimited
company.
"NSULC 4": 3112754 Nova Scotia Company, a Nova Scotia unlimited
company.
"Obligation Currency": as defined in Section 10.13(a).
"Obligations": 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 either Borrower, whether or not a claim for
post-filing
or post-petition interest is allowed in such proceeding) the Loans,
the
Reimbursement Obligations, the full Face Amount of all outstanding
B/As and all
other obligations and liabilities of the Borrowers to the
Administrative Agent,
the Canadian Administrative Agent or to any Lender (or, in the case
of Specified
Hedge Agreements, of either Borrower or any of its Subsidiaries to
the
Administrative Agent, the Canadian Administrative Agent, any Lender
or any
affiliate of any 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 Letters of Credit, any B/A, any Specified Hedge Agreement or
(to the extent
the applicable Borrower so agrees in the applicable agreements
therefor) cash
management arrangements with Lenders 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 Administrative Agent, the Canadian Administrative Agent or
any Lender
that are required to be paid by either Borrower pursuant hereto) or
otherwise;
provided, that (a) obligations of either Borrower or any of its
Subsidiaries
under any Specified Hedge Agreement or cash management agreement
(if applicable)
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 (b) 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 or cash management
agreements (if
applicable).
"Ontario LP": SS&C 1656866 Limited Partnership, a limited
partnership
formed under the laws of Ontario.
"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.
"Payment Amount": as defined in Section 3.5.
"Participant": as defined in Section 10.6(c).
<PAGE>
25
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": (i) any acquisition (including, if
applicable, in the case of any Intellectual Property, by way of
license)
approved by the Required Lenders or (ii) any acquisition by either
Borrower or
any of its Subsidiaries of all or substantially all of the Capital
Stock, or all
or substantially all of the assets, of any Person, or of all or
substantially
all of the assets constituting a division, product line or business
line of any
Person (each, an "Acquisition"), if such Acquisition described in
this clause
(ii) complies with the following criteria:
(a) No Default or Event of Default shall be in effect
immediately
prior or after giving effect to such Acquisition.
(b) After giving effect to the consummation of such Acquisition and
to
the
incurrence of any Indebtedness associated therewith, the US
Borrower
shall be in pro forma compliance with Section 7.1 (calculated as of
the
last
day of the fiscal quarter immediately preceding the fiscal quarter
in
which such acquisition is consummated, giving pro forma effect to
such
Acquisition and the issuance of the related Indebtedness).
(c) At least five Business Days prior to the consummation of
such
Acquisition (i) the Administrative Agent shall have received the
then
current financial projections in respect of the Person, division,
product
line
or line of business acquired in such Acquisition for the
one-year
period following the consummation of such acquisition, (ii) the
Administrative Agent shall have received the then current drafts of
the
documentation to be executed in connection with such Acquisition
(with
final copies of such documentation to be delivered to the
Administrative
Agent promptly upon becoming available), including all schedules
and
exhibits thereto and (iii) the Administrative Agent shall have
received
notice of the closing date for such Acquisition; provided, that,
such
notice shall be given unless doing so would materially interfere
with, or
would cause materially adverse economic consequences with respect
to, the
consummation of such Acquisition.
"Permitted Investors": the collective reference to the Sponsor,
any
Co-Investors, William C. Stone and their respective Affiliates (but
excluding,
for purposes of Section 8(k) only, any portfolio companies of the
foregoing) and
the directors, officers and other employees of Holdings and its
Subsidiaries.
"Permitted Seller Note": a promissory note containing
subordination
and other related provisions reasonably acceptable to the
Administrative Agent,
representing Indebtedness of either Borrower or any of its
Subsidiaries incurred
in connection with any acquisition permitted under Section 7.8(f)
and payable to
the seller in connection therewith.
"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.
"Plan": at a particular time, any employee benefit plan as defined
in
Section 3(3) of ERISA and in respect of which either Borrower or
any of its
Subsidiaries 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.
<PAGE>
26
"Pledged Securities": as defined in the Guarantee and
Collateral
Agreement or the CDN Guarantee and Collateral Agreement, as
applicable.
"Pledged Stock": as defined in the Guarantee and Collateral
Agreement
or the CDN Guarantee and Collateral Agreement, as applicable.
"Pricing Grid": the Revolving Facility Pricing Grid or the C$ CDN
Term
Facility Pricing Grid, as the context requires.
"Prime Rate": as defined in the definition of "ABR".
"Pro
Forma Balance Sheet": as defined in Section 4.1(a).
"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.
"Qualified Capital Stock": any Capital Stock that is not
Disqualified
Capital Stock.
"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 the US Borrower or any of its Subsidiaries, in an
amount for each
such event exceeding $1,000,000.
"Refunded CDN Swingline Loans": as defined in Section
2.7(b)(ii).
"Refunded US Swingline Loans": as defined in Section 2.7(b)(i).
"Register": as defined in Section 10.6(b)(iv).
"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 relevant Borrower
to
reimburse an Issuing Lender pursuant to Section 3.5 for amounts
drawn under
Letters of Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any
Reinvestment
Event, the aggregate Net Cash Proceeds received by any Loan Party
for its own
account in connection therewith that are not applied to prepay the
Term Loans or
reduce the Revolving Commitments pursuant to Section 2.12 as a
result of the
delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect
of
which either Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice signed on behalf of the
US
Borrower by a Responsible Officer stating that the US Borrower
(directly or
indirectly through a Subsidiary) intends and expects to use all or
a specified
portion of the Net Cash Proceeds of an Asset Sale 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
committed to be expended prior to the relevant Reinvestment
Prepayment Date (a
"Committed Reinvestment Amount"), or actually expended
<PAGE>
27
expended prior to such date, in each case to acquire assets useful
in the US
Borrower's or any Subsidiary's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment
Event, the earlier of (i) the date occurring 15 months after such
Reinvestment
Event and (ii) with respect to any portion of a Reinvestment
Deferred Amount,
the date on which the relevant Borrower shall have determined not
to acquire
assets useful in either Borrower's business with such portion of
such
Reinvestment Deferred Amount.
"Related Affiliate": with respect to any CDN Revolving Lender,
an
Affiliate or lending office of such CDN Revolving Lender designated
by it to
make its CDN Revolving Commitment and CDN Revolving Loans available
to the US
Borrower under this Agreement.
"Release": any actual or threatened release, spill, emission,
leaking,
dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching
or migration into or through the environment or within or upon any
building,
structure or facility.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241
of ERISA.
"Replacement Canadian Indebtedness Amount": at any time, an
aggregate
amount equal to the sum of (i) the aggregate amount of the CDN Term
Loan repaid
or prepaid pursuant to Sections 2.3(b), 2.11(b) and 2.12(d) prior
to such time
and (ii) the aggregate amount of all reductions of the CDN
Revolving Commitment
pursuant to Section 2.10 prior to such time.
"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.
"Representatives": as defined in Section 10.15.
"Required Lenders": at any time, the holders of more than 50% of
(a)
until the Closing Date, the Commitments then in effect and (b)
thereafter, the
sum of (i) the US Dollar Amount of the aggregate unpaid principal
amount of the
Term Loans then outstanding and (ii) the Total Revolving
Commitments then in
effect or, if the Revolving Commitments have been terminated, the
Total
Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
respect of the Term 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.
"Responsible Officer": the chief executive officer, president,
chief
financial officer (or similar title) or treasurer (or similar
title) of Holdings
or the US Borrower, and, with respect to financial matters, the
chief financial
officer (or similar title) or treasurer (or similar title) of
Holdings or the US
Borrower.
"Restricted Payments": as defined in Section 7.6.
<PAGE>
28
"Revolving Commitments": the collective reference to the US
Revolving
Commitments and the CDN Revolving Commitments.
"Revolving Commitment Period": the period from and including
the
Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": the collective reference to the
US
Revolving Extensions of Credit and CDN Revolving Extensions of
Credit.
"Revolving Facility": as defined in the definition of
"Facility".
"Revolving Facility Pricing Grid": the table set forth below.
<TABLE>
<CAPTION>
Applicable Margin for
Applicable Margin for Revolving Loans that
are
Revolving Loans that are ABR Loans, CDN ABR Loans
Consolidated Total
Eurocurrency Loans or or CDN Prime
Loans and
Commitment
Leverage Ratio
Bankers' Acceptances
for Swingline Loans Fee
Rate
------------------
------------------------ ------------------------
----------
<S>
<C>
<C>
<C>
> or =
5.50 : 1.00
2.75%
1.75%
0.50%
4.50 : 1.00 < and < 5.50 : 1.00
2.50%
1.50%
0.50%
3.50 : 1.00 < and < or = 4.50 : 1.00
2.25%
1.25%
0.375%
< or =
3.50 : 1.00
2.00%
1.00%
0.375%
</TABLE>
Changes in the Applicable Margin with respect to Revolving Loans
and
Swingline Loans resulting from changes in the Consolidated Total
Leverage Ratio
shall become effective on the date (the "Adjustment Date") on which
financial
statements are delivered to the Lenders pursuant to Section 6.1 and
shall remain
in effect until the next change to be effected pursuant to this
paragraph. If
any financial statements referred to above are not delivered within
the time
periods specified in Section 6.1, then, until such financial
statements are
delivered, the Consolidated Total Leverage Ratio as at the end of
the fiscal
period that would have been covered thereby shall for the purposes
of this
definition be deemed to be greater than 5.50 to 1. In addition, at
all times
while an Event of Default set forth in Section 8(a) or 8(f) shall
have occurred
and be continuing, the Consolidated Total Leverage Ratio shall for
the purposes
of this Pricing Grid be deemed to be greater than 5.50 to 1. Each
determination
of the Consolidated Total Leverage Ratio pursuant to this Pricing
Grid shall be
made for the periods and in the manner contemplated by Section
7.1(a).
"Revolving Lenders": the collective reference to the US
Revolving
Lenders and the CDN Revolving Lenders.
"Revolving Loans": the collective reference to the US Revolving
Loans
and the CDN Revolving Loans.
"Revolving Termination Date": November 23, 2011.
"S&P": Standard & Poor's Ratings Group.
<PAGE>
29
"Schedule I Reference Lenders": Canadian Imperial Bank of Commerce
and
The Bank of Nova Scotia.
"Schedule II/III Reference Lenders": JPMorgan Chase Bank, N.A.,
Toronto Branch and Bank of America, National Association, Canada
Branch.
"SEC": the Securities and Exchange Commission (or successors
thereto
or an analogous Governmental Authority).
"Second Merger Agreement": the Agreement and Plan of Merger (Step
15),
dated as of the date hereof, by and between Sunshine Merger II and
the Surviving
US Borrower, as amended, supplemented or otherwise modified from
time to time
with the consent of the Administrative Agent.
"Securities": as defined in the CDN Guarantee and Collateral
Agreement.
"Security Documents": the collective reference to the Guarantee
and
Collateral Agreement, the CDN Security Documents and all other
security
documents (including any Mortgages) hereafter delivered to the
Administrative
Agent or the Canadian Administrative Agent purporting to grant a
Lien on any
Property of any Loan Party to secure the obligations and
liabilities of any Loan
Party under any Loan Document.
"Senior Subordinated Note Indenture": the Indenture entered into
by
the Initial US Borrower and certain of its Subsidiaries in
connection with the
issuance of the Senior Subordinated Notes as the same may be
amended,
supplemented or otherwise modified from time to time.
"Senior Subordinated Notes": the subordinated notes of the US
Borrower
issued on the Closing Date and any exchange notes issued in
replacement thereof,
in each case 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, (I) with respect to any US Loan Party, (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 and (d)
such Person
will be able to pay its debts as they mature; and (II) with respect
to any CDN
Loan Party, (a) the property of each such Person is, at a fair
valuation,
greater than the total amount of liabilities, including contingent
liabilities,
of such Person, (b) each such Person has not ceased paying its
current
obligations in the ordinary course of business as they generally
become due and
(c) each such Person is not for any reason unable to meet its
obligations as
they generally become due. For purposes of this definition, (i)
"debt" means
liability on a "claim", (ii) "claim" means 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 and (iii)
except as
otherwise provided by applicable law, the amount of "contingent
liabilities" at
any time shall be the
<PAGE>
30
amount thereof which, in light of all the facts and circumstances
existing at
such time, can reasonably be expected to become actual or matured
liabilities.
"Specified Cash Management Arrangement": as defined in the
Guarantee
and Collateral Agreement or the CDN Guarantee and Collateral
Agreement, as
applicable.
"Specified Change of Control": a "Change of Control" (or any
other
defined term having the same purpose) as defined in the Senior
Subordinated Note
Indenture.
"Specified Hedge Agreement": any Hedge Agreement (a) entered into
by
(i) either Borrower or any of its Subsidiaries and (ii) any Lender
or any
affiliate thereof at the time such Hedge Agreement was entered
into, as
counterparty and (b) that has been designated by such Lender and
the relevant
Borrower, by notice to the Administrative Agent (and, if entered
into by a CDN
Loan Party, the Canadian Administrative Agent), as a Specified
Hedge Agreement.
The designation of any Hedge Agreement as a Specified Hedge
Agreement shall not
create in favor of the Lender or affiliate thereof that is a party
thereto any
rights in connection with the management or release of any
Collateral or of the
obligations of any Guarantor under the Guarantee and Collateral
Agreement or the
CDN Guarantee and Collateral Agreement, as the case may be. For the
avoidance of
doubt, all Hedge Agreements in existence on the Closing Date
between either
Borrower or any of its Subsidiaries and any Lender shall constitute
Specified
Hedge Agreements.
"Specified Representations": (a) the representations made by
SS&C
Technologies, Inc. in the Initial Merger Agreement, but only to the
extent that
the Sponsor, Holdings or Sunshine Merger Corporation has the right
to terminate
its obligations under the Initial Merger Agreement in the event
that any such
representations are not true and (b) the representations and
warranties set
forth in Sections 4.2(a), 4.4, 4.11 and 4.14.
"Sponsor": Carlyle Partners IV, L.P. and CP IV Coinvestment, L.P.,
and
any Affiliates thereof (but excluding, for purposes of Section 8(k)
only, any
portfolio companies of the foregoing).
"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 the US Borrower.
"Subsidiary Guarantors": the collective reference to the US
Subsidiary
Guarantors and the CDN Subsidiary Guarantors.
"Sunshine Merger II": Sunshine Merger II, Inc., a Delaware
corporation.
"Sunshine Merger Corporation": Sunshine Merger Corporation, a
Delaware
corporation.
"Swingline Commitment": the collective reference to the US
Swingline
Commitment and the CDN Swingline Commitment.
"Swingline Lenders": the collective reference to the US
Swingline
Lender and the CDN Swingline Lender.
<PAGE>
31
"Swingline Loans": the collective reference to the US Swingline
Loans
and the CDN Swingline Loans.
"Swingline Participation Amount": as defined in Section 2.7(c).
"Syndication Agent": as defined in the preamble hereto.
"Term Commitments": the collective reference to the US Term
Commitments and the CDN Term Commitments.
"Term Facility": as defined in the definition of "Facility".
"Term Lender": the collective reference to the US Term Lenders and
the
CDN Term Lenders.
"Term Loans" the collective reference to the US Term Loans and the
CDN
Term Loans.
"Third Merger Agreement": the Agreement and Plan of Merger (Step
18),
dated as of the date hereof, by and between the Initial US Borrower
and the
Surviving US Borrower, as amended, supplemented or otherwise
modified from time
to time with the consent of the Administrative Agent.
"Total CDN Revolving Commitments": at any time, the aggregate
amount
of the CDN Revolving Commitments then in effect.
"Total CDN Revolving Extensions of Credit": at any time, the
aggregate
amount of the CDN Revolving Extensions of Credit then
outstanding.
"Total Revolving Commitments": at any time, the sum of the Total
US
Revolving Commitments then in effect and the Total CDN Revolving
Commitments
then in effect.
"Total Revolving Extensions of Credit": at any time, the sum of
the
Total US Revolving Extensions of Credit then outstanding and the
Total CDN
Revolving Extensions of Credit then outstanding.
"Total US Revolving Commitments": at any time, the aggregate amount
of
the US Revolving Commitments then in effect.
"Total US Revolving Extensions of Credit": at any time, the
aggregate
amount of the US Revolving Extensions of Credit then
outstanding.
"Tranche": as defined in Section 2.28.
"Transaction": as defined in Section 5.1(b).
"Transferee": any Assignee or Participant.
"Type": (i) as
to any Loan denominated in Dollars, its nature as an
ABR Loan, CDN ABR Loan or Eurocurrency Loan, and (ii) as to any
Loan denominated
in CDN Dollars, its nature as a CDN Prime Loan, a Bankers'
Acceptance or a
Eurocurrency Loan.
"United States": the United States of America.
<PAGE>
32
"US Borrower": (a) at any time prior to the consummation of the
US
Merger Transactions, the Initial US Borrower, and (b) upon and at
any time after
the consummation of the US Merger Transactions, the Surviving US
Borrower.
"US Dollar Amount": in respect of any amount, the sum of (a)
the
portion thereof denominated in Dollars (if any), plus (b) the US
Dollar
Equivalent of the portion thereof denominated in CDN Dollars (if
any).
"US$ CDN Revolving Loans": as defined in Section 2.4(b).
"US$ CDN Term Commitment": as to any Lender, the obligation of
such
Lender, if any, to make a US$ CDN Term Loan to the CDN Borrower in
a principal
amount not to exceed the amount set forth under the heading "US$
CDN Term
Commitment" opposite such Lender's name on Schedule 1.1A. The
original aggregate
amount of the US$ CDN Term Commitments is $17,000,000
"US$ CDN Term Facility": as defined in the definition of
"Facility".
"US$ CDN Term Lender": each Lender that has a US$ CDN Term
Commitment
or that holds a US$ CDN Term Loan.
"US$ CDN Term Loan": as defined in Section 2.1.
"US$ CDN Term Percentage": as to any US$ CDN Term Lender, (i) at
any
time prior to the Closing Date, the percentage which the sum of
such Lender's
US$ CDN Term Commitments then constitutes of the aggregate US$ CDN
Term
Commitments and (ii) at any time after the Closing Date, the
percentage which
the aggregate principal amount of such Lender's US$ CDN Term Loans
then
outstanding constitutes of the aggregate principal amount of the
US$ CDN Term
Loans then outstanding
"US Dollar Equivalent": at any time for the determination thereof,
the
amount of Dollars which could be purchased with the amount of CDN
Dollars
involved in such computation at the spot rate of exchange therefor
as quoted by
the Canadian Administrative Agent as of 12:00 noon. (New York City
time) on the
date of any determination thereof for purchase on such date.
"US Funding Office": the office of the Administrative Agent
specified
in Section 10.2 or such other office as may be specified from time
to time by
the Administrative Agent as its funding office by written notice to
the
Borrowers and the Lenders.
"US Issuing Lender": (a) JPMorgan Chase Bank or (b) any other
US
Revolving Lender from time to time designated by the US Borrower as
a US Issuing
Lender with the consent of such other US Revolving Lender and the
Administrative
Agent (such consent of the Administrative Agent not to be
unreasonably withheld,
conditioned or delayed).
"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.
"US L/C Participants": the collective reference to all the US
Revolving Lenders other than the applicable US Issuing Lender.
"US Lender": as defined in Section 2.20(e).
<PAGE>
33
"US Letters of Credit": as defined in Section 3.1(a).
"US Loan Party": each of Holdings, the US Borrower and the US
Subsidiary Guarantors.
"US Merger Transactions": as defined in Section 5.1(b).
"US Revolving Commitment": as to any Lender, the obligation of
such
Lender, if any, to make US Revolving Loans and participate in US
Swingline 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
Commitment" opposite
such Lender's name on Schedule 1.1A or in the Assignment and
Assumption 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 amount of the
Total US
Revolving Commitments is $65,000,000.
"US Revolving Extensions of Credit": as to any US Revolving Lender
at
any time, an amount equal to the sum of (a) the aggregate principal
amount of
all US Revolving Loans held by such Lender then outstanding, (b)
such Lender's
US Revolving Percentage of the US L/C Obligations then outstanding
and (c) such
Lender's US Revolving Percentage of the aggregate principal amount
of US
Swingline Loans then outstanding.
"US Revolving Facility": as defined in the definition of
"Facility".
"US Revolving Lender": each Lender that has a US Revolving
Commitment
or that holds US Revolving Loans.
"US Revolving Loans": as defined in Section 2.4(a).
"US Revolving Percentage": as to any US Revolving Lender at any
time,
the percentage which such Lender's US Revolving Commitment then
constitutes of
the Total US Revolving Commitments or, at any time after the
Revolving
Commitments shall have expired or terminated, the percentage which
the aggregate
principal amount of such Lender's US Revolving Loans then
outstanding
constitutes of the aggregate principal amount of the US Revolving
Loans then
outstanding, provided, that, in the event that the US Revolving
Loans are paid
in full prior to the reduction to zero of the Total US Revolving
Extensions of
Credit, the US Revolving Percentages shall be determined in a
manner designed to
ensure that the other outstanding US Revolving Extensions of Credit
shall be
held by the Revolving Lenders on a comparable basis.
"US Subsidiary Guarantor": each wholly owned Domestic
Subsidiary
(other than Subsidiary Sunshine Merger II, Sunshine Merger
Corporation and any
Immaterial Subsidiary) of the US Borrower.
"US Swingline Commitment": the obligation of the US Swingline
Lender
to make US Swingline Loans pursuant to Section 2.6(a) in an
aggregate principal
amount at any one time outstanding not to exceed $5,000,000.
"US Swingline Lender": JPMorgan Chase Bank, in its capacity as
the
lender of US Swingline Loans.
"US Swingline Loans": as defined in Section 2.6(a).
<PAGE>
34
"US Term Commitment": as to any Lender, the obligation of such
Lender,
if any, to make a US Term Loan to the US Borrower in a principal
amount not to
exceed the amount set forth under the heading "US Term Commitment"
opposite such
Lender's name on Schedule 1.1A. The original aggregate amount of
the US Term
Commitments is $200,000,000.
"US Term Facility": as defined in the definition of "Facility".
"US Term Lender": each Lender that has a US Term Commitment or
that
holds a US Term Loan.
"US Term Loan": as defined in Section 2.1.
"US Term Percentage": as to any US Term Lender at any time, the
percentage which the sum of such Lender's US Term Commitments then
constitutes
of the aggregate US Term Commitments (or, at any time after the
Closing Date,
the percentage which the aggregate principal amount of such
Lender's US Term
Loans then outstanding constitutes of the aggregate principal
amount of the US
Term Loans then outstanding).
"Vehicles": all cars, trucks, trailers, construction and earth
moving
equipment and other vehicles covered by a certificate of title law
of any state
or province.
"WCS Employment Agreement": the Employment Agreement, dated as of
the
date hereof, entered into by and between William C. Stone and
Holdings, as in
effect on the Closing Date and as may be modified from time to time
with the
consent of the Administrative Agent.
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, (i)
accounting terms relating to the US Borrower and its Subsidiaries
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, (ii)
the words "include", "includes" and "including" shall be deemed to
be followed
by the phrase "without limitation", and (iii) references to
agreements or other
Contractual Obligations shall, unless otherwise specified, be
deemed to refer to
such agreements or Contractual Obligations as amended,
supplemented, restated or
otherwise modified from time to time.
(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 provision of this Agreement, and Annex,
Section,
Schedule and Exhibit references are to this Agreement unless
otherwise
specified.
(d) The term "license" shall include sub-license.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
<PAGE>
35
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. (a) Subject to the terms and conditions
hereof,
each US Term Lender severally agrees to make a term loan (a "US
Term Loan") in
Dollars to the Initial US Borrower on the Closing Date in an amount
not to
exceed the amount of the US Term Commitment of such Lender. The US
Term Loans
may from time to time be Eurocurrency Loans or ABR Loans, as
determined by the
US Borrower and notified to the Administrative Agent in accordance
with Sections
2.2(a) and 2.13.
(b) Subject to the terms and conditions hereof, each C$ CDN
Term
Lender severally agrees to make a term loan in CDN Dollars to the
CDN Borrower
on the Closing Date and, thereafter, to the extent of any
conversion or renewal
of a C$ CDN Term Loan in accordance with Sections 2.13(c) and/or
2.25, as
applicable, to accept and, at the option of the CDN Borrower,
purchase Bankers'
Acceptances from the CDN Borrower (such term loan and the full Face
Amount of
any such B/A, a "C$ CDN Term Loan") in an amount not to exceed the
amount of the
C$ CDN Term Commitment of such Lender. The C$ CDN Term Loans may
from time to
time be CDN Prime Loans or Bankers' Acceptances, as determined by
the CDN
Borrower and notified to the Canadian Administrative Agent in
accordance with
Sections 2.2(b), 2.13(c) and/or 2.25, as applicable.
(c) Subject to the terms and conditions hereof, each US$ CDN
Term
Lender severally agrees to make a term loan (a "US$ CDN Term Loan")
in Dollars
to the CDN Borrower on the Closing Date in an amount not to exceed
the amount of
the US$ CDN Term Commitment of such Lender. The US$ CDN Term Loans
may from time
to time be Eurocurrency Loans or ABR Loans, as determined by the
CDN Borrower
and notified to the Canadian Administrative Agent in accordance
with Sections
2.2(b) and 2.13.
2.2 Procedure for Term Loan Borrowing. (a) The Initial US
Borrower
shall give the Administrative Agent irrevocable notice (which
notice must be
received by the Administrative Agent prior to 12:00 Noon, New York
City time, on
the day of the anticipated Closing Date) requesting that the US
Term Lenders
make the US Term Loans on the Closing Date and specifying the
amount to be
borrowed. The US Term Loans made on the Closing Date shall
initially be ABR
Loans. Upon receipt of such notice the Administrative Agent shall
promptly
notify each US Term Lender thereof. Not later than 1:00 P.M., New
York City
time, on the Closing Date each US Term Lender shall make available
to the
Administrative Agent at the US Funding Office an amount in
immediately available
funds equal to the US Term Loan or US Term Loans to be made by such
Lender. The
Administrative Agent shall credit the account designated in writing
by the
Initial US Borrower to the Administrative Agent with the aggregate
of the
amounts made available to the Administrative Agent by the US Term
Lenders in
immediately available funds.
(b) The CDN Borrower shall give the Canadian Administrative
Agent
irrevocable notice (which notice must be received by the Canadian
Administrative
Agent prior to 12:00 Noon, New York City time, on the day of the
anticipated
Closing Date) requesting that the CDN Term Lenders make the CDN
Term Loans on
the Closing Date and specifying the amount to be borrowed. The CDN
Term Loans
made on the Closing Date shall initially be (i) in the case of C$
CDN Term
Loans, CDN Prime Loans, and (ii) in the case of US$ CDN Term Loans,
ABR Loans.
Upon receipt of such notice the Canadian Administrative Agent shall
promptly
notify each CDN Term Lender thereof. Not later than 1:00 P.M., New
York City
time, on the Closing Date each CDN Term Lender shall make available
to the
Canadian Administrative Agent at the Canadian Funding Office an
amount in
immediately available funds equal to the CDN Term Loan or CDN Term
Loans to be
made by such Lender. The Canadian Administrative Agent shall credit
the account
designated in writing by the CDN Borrower to the Canadian
Administrative Agent
with the aggregate of the amounts made available to the Canadian
Administrative
Agent by the CDN Term Lenders in immediately available funds.
<PAGE>
36
2.3 Repayment of Term Loans. (a) The US Term Loan of each US
Term
Lender shall mature in consecutive quarterly installments,
commencing on March
31, 2006, each of which shall be in an amount equal to such
Lender's US Term
Percentage multiplied by the amount set forth below opposite such
installment:
<TABLE>
<CAPTION>
Installment Principal
Amount
-----------
----------------
<S>
<C>
March 31, 2006
$500,000
June 30, 2006
$500,000
September 30, 2006
$500,000
December 31, 2006
$500,000
March 31, 2007
$500,000
June 30, 2007
$500,000
September 30, 2007
$500,000
December 31, 2007
$500,000
March 31, 2008
$500,000
June 30, 2008
$500,000
September 30, 2008
$500,000
December 31, 2008
$500,000
March 31, 2009
$500,000
June 30, 2009
$500,000
September 30, 2009
$500,000
December 31, 2009
$500,000
March 31, 2010
$500,000
June 30, 2010
$500,000
September 30, 2010
$500,000
December 31, 2010
$500,000
March 31, 2011
$500,000
June 30, 2011
$500,000
September 30, 2011
$500,000
December 31, 2011
$500,000
March 31, 2012
$500,000
June 30, 2012
$500,000
September 30, 2012
$500,000
November 23, 2012 All
outstanding
principal in
respect of the
US Term Loans
</TABLE>
(b) The C$ CDN Term Loan of each C$ CDN Term Lender shall mature
in
consecutive quarterly installments, commencing on March 31, 2006,
each of which
shall be in an amount equal to such Lender's C$ CDN Term Percentage
multiplied
by the amount set forth below opposite such installment:
<TABLE>
<CAPTION>
Installment Principal
Amount
-----------
----------------
<S>
<C>
March 31, 2006
C$170,897
June 30, 2006
C$170,897
September 30, 2006
C$170,897
December 31, 2006
C$170,897
March 31, 2007
C$170,897
June 30, 2007
C$170,897
September 30, 2007
C$170,897
</TABLE>
<PAGE>
37
<TABLE>
<CAPTION>
Installment Principal
Amount
-----------
----------------
<S>
<C>
December 31, 2007
C$170,897
March 31, 2008
C$170,897
June 30, 2008
C$170,897
September 30, 2008
C$170,897
December 31, 2008
C$170,897
March 31, 2009
C$170,897
June 30, 2009
C$170,897
September 30, 2009
C$170,897
December 31, 2009
C$170,897
March 31, 2010
C$170,897
June 30, 2010
C$170,897
September 30, 2010
C$170,897
December 31, 2010
C$170,897
March 31, 2011
C$170,897
June 30, 2011
C$170,897
September 30, 2011
C$170,897
December 31, 2011
C$170,897
March 31, 2012
C$170,897
June 30, 2012
C$170,897
September 30, 2012
C$170,897
November 23, 2012 All
outstanding
principal in
respect of the
C$ CDN Term
Loans
</TABLE>
(c) The US$ CDN Term Loan of each US$ CDN Term Lender shall mature
in
consecutive quarterly installments, commencing on March 31, 2006,
each of which
shall be in an amount equal to such Lender's US$ CDN Term
Percentage multiplied
by the amount set forth below opposite such installment:
<TABLE>
<CAPTION>
Installment Principal
Amount
-----------
----------------
<S>
<C>
March 31, 2006
$42,500
June 30, 2006
$42,500
September 30, 2006
$42,500
December 31, 2006
$42,500
March 31, 2007
$42,500
June 30, 2007
$42,500
September 30, 2007
$42,500
December 31, 2007
$42,500
March 31, 2008
$42,500
June 30, 2008
$42,500
September 30, 2008
$42,500
December 31, 2008
$42,500
March 31, 2009
$42,500
June 30, 2009
$42,500
September 30, 2009
$42,500
December 31, 2009
$42,500
March 31, 2010
$42,500
June 30, 2010
$42,500
</TABLE>
<PAGE>
38
<TABLE>
<CAPTION>
Installment Principal
Amount
-----------
----------------
<S>
<C>
September 30, 2010
$42,500
December 31, 2010
$42,500
March 31, 2011
$42,500
June 30, 2011
$42,500
September 30, 2011
$42,500
December 31, 2011
$42,500
March 31, 2012
$42,500
June 30, 2012
$42,500
September 30, 2012
$42,500
November 23, 2012 All
outsanding
principal in
respect of the
US$ CDN Term
Loans
</TABLE>
2.4 Revolving Commitments. (a) Subject to the terms and
conditions
hereof, each US Revolving Lender severally agrees to make revolving
credit loans
("US Revolving Loans") in Dollars to the US Borrower from time to
time during
the Revolving Commitment Period in an aggregate principal amount at
any one time
outstanding which, when added to such Lender's US Revolving
Percentage of the
sum of (i) the US L/C Obligations then outstanding and (ii) the
aggregate
principal amount of the US Swingline Loans then outstanding, does
not exceed the
amount of such Lender's US Revolving Commitment. During the
Revolving Commitment
Period the US Borrower may use the US Revolving Commitments by
borrowing,
prepaying the US Revolving Loans in whole or in part, and
reborrowing, all in
accordance with the terms and conditions hereof. The US Revolving
Loans may from
time to time be Eurocurrency Loans or ABR Loans, as determined by
the US
Borrower and notified to the Administrative Agent in accordance
with Sections
2.5(a) and 2.13.
(b) Subject to the terms and conditions hereof, each CDN
Revolving
Lender severally agrees (i) to make revolving credit loans to the
CDN Borrower
in Dollars (US$ CDN Revolving Loans") from time to time during the
Revolving
Commitment Period, and (ii) to make revolving credit loans to the
US Borrower
and the CDN Borrower in CDN Dollars and to accept and, at the
option of the CDN
Borrower, purchase Bankers' Acceptances from the CDN Borrower (such
revolving
credit loans and the full Face Amount of all such B/As, the "C$ CDN
Revolving
Loans" and, together with the US$ CDN Revolving Loans,
collectively, the "CDN
Revolving Loans") from time to time during the Revolving Commitment
Period, in
an aggregate principal amount for all such CDN Revolving Loans at
any one time
outstanding such that (i) such CDN Revolving Lender's CDN Revolving
Extensions
of Credit for the account of the CDN Borrower does not exceed the
portion of
such CDN Revolving Lender's CDN Revolving Commitment then allocated
to the CDN
Borrower in accordance with this Section 2.4(b) and (ii) such CDN
Revolving
Lender's CDN Revolving Extensions of Credit for the account of the
US Borrower
does not exceed the portion of such CDN Revolving Lender's CDN
Revolving
Commitment then allocated to the US Borrower in accordance with
this Section
2.4(b). The allocation of the CDN Revolving Commitments as between
the US
Borrower on the one hand and the CDN Borrower on the other hand
shall be fixed
by the US Borrower at the beginning of each fiscal quarter of the
US Borrower;
provided, that the US Borrower may revise such allocations at the
beginning of
each such fiscal quarter or more often by providing written notice
to the
Administrative Agent and the Canadian Administrative Agent (which
notice must be
received by each agent prior to 1:00 P.M., New York City time,
three Business
Days before the date on which such allocations shall be revised)
specifying the
revised allocation of the CDN Revolving Commitments as between the
US Borrower
and the CDN Borrower, respectively. As of the Closing Date, none of
the CDN
Revolving Commitments are allocated to the US Borrower and
$10,000,000 of the
CDN Revolving Commitments are allocated to the CDN Borrower. To
<PAGE>
39
the extent that the CDN Revolving Commitment of a CDN Revolving
Lender may be
allocated to the US Borrower from time to time, such CDN Revolving
Lender, if it
is not a "United States person" (as such term is defined in Section
7701(a)(30)
of the Code), shall designate by notice in writing to the
Administrative Agent
on the Closing Date, and otherwise from time to time, a Related
Affiliate of
such Lender which is either a "United States person" (as such term
is defined in
Section 7701(a)(30) of the Code) or is a Non-US Lender that has
fulfilled the
requirements of Section 2.20(d) or (e), as applicable.
(c) During the Revolving Commitment Period, each Borrower may use
the
CDN Revolving Commitments by borrowing, prepaying (other than
Bankers'
Acceptances) or repaying the CDN Revolving Loans, in whole or in
part, and
reborrowing, all in accordance with the terms and conditions
hereof.
(d) The C$ CDN Revolving Loans shall be denominated in CDN Dollars
and
may from time to time be (i) if borrowed by the CDN Borrower, (A)
CDN Prime
Loans or (B) Bankers' Acceptances, as determined by the CDN
Borrower and
notified to the Canadian Administrative Agent (with a copy to the
Administrative
Agent) pursuant to Section 2.5(b) and Section 2.13 and (ii) if
borrowed by the
US Borrower, Eurocurrency Loans, as notified to the Administrative
Agent
pursuant to Section 2.5(a). The US$ CDN Revolving Loans shall be
denominated in
Dollars and may from time to time be (A) CDN ABR Loans or (B)
Eurocurrency
Loans, as determined by the CDN Borrower and notified to the
Canadian
Administrative Agent (with a copy to the Administrative Agent)
pursuant to
Section 2.5(b) and Section 2.13.
(e) Each Borrower shall repay all outstanding Revolving Loans made
to
it on the Revolving Termination Date.
2.5 Procedure for Revolving Loan Borrowing. (a) The US Borrower
may
borrow under the US Revolving Commitments or the CDN Revolving
Commitments
during the Revolving Commitment Period on any Business Day,
provided that the US
Borrower shall give the Administrative Agent (and the Canadian
Administrative
Agent, in the case of borrowings under the CDN Revolving
Commitments)
irrevocable notice (which notice must be received by the
Administrative Agent
prior to 1:00 P.M., New York City time, (a) three Business Days
prior to the
requested Borrowing Date, in the case of Eurocurrency Loans, or (b)
one Business
Day prior to the requested Borrowing Date, in the case of ABR
Loans), specifying
(i) whether such borrowing is of the US Revolving Commitments or
the CDN
Revolving Commitments (or in the event that the US Borrower is
borrowing under
both facilities, specifying the principal amount to be borrowed
under each
thereof), (ii) the amount, currency (if applicable) and Type of
Revolving Loans
to be borrowed, (iii) the requested Borrowing Date and (iv) in the
case of
Eurocurrency Loans, the respective amounts of each such Type of
Loan and the
respective lengths of the initial Interest Period therefor. Any US
Revolving
Loans made on the Closing Date shall initially be ABR Loans, and
the aggregate
principal amount of all Revolving Loans made on the Closing Date
shall not
exceed $10,010,000. Each borrowing by the US Borrower under the US
Revolving
Commitments or the CDN Revolving Commitments shall be in an amount
equal to (x)
in the case of ABR Loans, $500,000 or a whole multiple of $100,000
in excess
thereof (or, if the then aggregate Available US Revolving
Commitments or
Available CDN Revolving Commitments, respectively, are less than
$500,000, such
lesser amount) and (y) in the case of Eurocurrency Loans, (I) in
the case of
Dollar-denominated Loans, $3,000,000 or a whole multiple of
$500,000 in excess
thereof and (II) in the case of CDN Dollar-denominated Loans,
C$3,000,000 or a
whole multiple of C$500,000 in excess thereof; provided, that the
US Swingline
Lender may request, on behalf of the US Borrower, borrowings under
the US
Revolving Commitments that are ABR Loans in other amounts pursuant
to Section
2.7(b)(i). Upon receipt of any such notice from the US Borrower,
the
Administrative Agent shall promptly notify each US Revolving Lender
or CDN
Revolving Lender, as applicable, thereof. Each US Revolving Lender
or CDN
Revolving Lender, as applicable, will make the amount of its pro
rata share of
each borrowing available
<PAGE>
40
to the Administrative Agent for the account of the US Borrower at
the US Funding
Office prior to 2:00 P.M., New York City time, on the Borrowing
Date requested
by the US Borrower in funds immediately available to the
Administrative Agent.
Such borrowing will then be made available to the US Borrower by
the
Administrative Agent crediting the account of the US Borrower on
the books of
such office with the aggregate of the amounts made available to
the
Administrative Agent by the US Revolving Lenders and/or the CDN
Revolving
Lenders, as the case may be, and in like funds as received by the
Administrative
Agent.
(b) The CDN Borrower may borrow under the CDN Revolving
Commitments
during the Revolving Commitment Period on any Business Day,
provided that the
CDN Borrower shall give the Canadian Administrative Agent (with a
copy to the
Administrative Agent) irrevocable notice (which notice must be
received by the
Canadian Administrative Agent prior to 1:00 P.M., New York City
time, (a) three
Business Days prior to the requested Borrowing Date, in the case of
Eurocurrency
Loans or Bankers' Acceptances, or (b) one Business Day prior to the
requested
Borrowing Date, in the case of CDN Prime Loans or CDN ABR Loans),
specifying (i)
the amount, currency and Type of Loans to be borrowed, (ii) the
requested
Borrowing Date and (iii) in the case of Bankers' Acceptances or
Eurocurrency
Loans, the respective Contract Periods therefor or the respective
amounts
thereof and lengths of the initial Interest Periods therefor,
respectively. Any
CDN Revolving Loans made to the CDN Borrower on the Closing Date
shall initially
be CDN Prime Loans (if denominated in CDN Dollars) or CDN ABR Loans
(if
denominated in Dollars), and the aggregate principal amount of all
Revolving
Loans made on the Closing Date shall not exceed $10,010,000. Each
borrowing by
the CDN Borrower under the CDN Revolving Commitments shall be in an
amount equal
to (i) in the case of CDN Prime Loans, C$1,000,000 or a whole
multiple of
C$100,000 in excess thereof (or, if the then aggregate Available
CDN Revolving
Commitments are less than the US Dollar Equivalent of C$1,000,000
at such time,
such lesser amount), (ii) in the case of CDN ABR Loans, $1,000,000
or a whole
multiple of $100,000 in excess thereof (or, if the then aggregate
Available CDN
Revolving Commitments are less than $1,000,000, such lesser
amount), (iii) in
the case of Bankers' Acceptances, an amount as set forth in Section
2.25 and
(iv) in the case of Eurocurrency Loans, $1,000,000 or a whole
multiple of
$100,000 in excess thereof; provided, that the CDN Swingline Lender
may request,
on behalf of the CDN Borrower, borrowings under the CDN Revolving
Commitments
that are CDN ABR Loans in other amounts pursuant to Section
2.7(b)(ii). Upon
receipt of any such notice from the CDN Borrower, the Canadian
Administrative
Agent shall promptly notify each CDN Revolving Lender thereof. Each
CDN
Revolving Lender will make the amount of its pro rata share of each
such
borrowing available to the Canadian Administrative Agent for the
account of the
CDN Borrower at the CDN Funding Office prior to 2:00 P.M., New York
City time,
on the Borrowing Date requested by the CDN Borrower in funds
immediately
available to the Canadian Administrative Agent. Such borrowing will
then be made
available on such date to the CDN Borrower by the Canadian
Administrative Agent
crediting the account designated in writing by the CDN Borrower to
the Canadian
Administrative Agent with the aggregate of the amounts made
available to the
Canadian Administrative Agent by the CDN Revolving Lenders and in
like funds as
received by the Canadian Administrative Agent.
2.6 Swingline Commitment. (a) Subject to the terms and
conditions
hereof, the US Swingline Lender agrees to make a portion of the
credit otherwise
available to the US Borrower under the US Revolving Commitments
from time to
time during the Revolving Commitment Period by making swing line
loans ("US
Swingline Loans") in Dollars to the US Borrower; provided that (i)
the aggregate
principal amount of US Swingline Loans outstanding at any time
shall not exceed
the US Swingline Commitment then in effect (notwithstanding that
the US
Swingline Loans outstanding at any time, when aggregated with the
US Swingline
Lender's other outstanding US Revolving Loans, may exceed the US
Swingline
Commitment then in effect) and (ii) the US Borrower shall not
request, and the
US Swingline Lender shall not make, any US Swingline Loan if, after
giving
effect to the making of such US Swingline Loan, the aggregate
amount of the
Available US Revolving Commitments would be less than zero.
<PAGE>
41
During the Revolving Commitment Period, the US Borrower may use the
US Swingline
Commitment by borrowing, repaying and reborrowing, all in
accordance with the
terms and conditions hereof. US Swingline Loans shall be ABR Loans
only.
(b) Subject to the terms and conditions hereof, the CDN
Swingline
Lender agrees to make a portion of the credit otherwise available
to the CDN
Borrower under the CDN Revolving Commitments from time to time
during the
Revolving Commitment Period by making swing line loans ("CDN
Swingline Loans")
in CDN Dollars to the CDN Borrower; provided that (i) the aggregate
principal
amount of CDN Swingline Loans outstanding at any time shall not
exceed the CDN
Swingline Commitment then in effect (notwithstanding that the CDN
Swingline
Loans outstanding at any time, when aggregated with the CDN
Swingline Lender's
other outstanding CDN Revolving Loans, may exceed the CDN Swingline
Commitment
then in effect) and (ii) the CDN Borrower shall not request, and
the CDN
Swingline Lender shall not make, any CDN Swingline Loan if, after
giving effect
to the making of such CDN Swingline Loan, the aggregate amount of
the Available
CDN Revolving Commitments would be less than zero. During the
Revolving
Commitment Period, the CDN Borrower may use the CDN Swingline
Commitment by
borrowing, repaying and reborrowing, all in accordance with the
terms and
conditions hereof. CDN Swingline Loans shall be CDN ABR Loans
only.
(c) The US Borrower shall repay to the US Swingline Lender the
then
unpaid principal amount of each US Swingline Loan on the Revolving
Termination
Date. The CDN Borrower shall repay to the CDN Swingline Lender the
then unpaid
principal amount of each CDN Swingline Loan on the Revolving
Termination Date.
2.7 Procedure for Swingline Borrowing; Refunding of Swingline
Loans.
(a) Whenever either Borrower desires that the relevant Swingline
Lender make
Swingline Loans it shall give such Swingline Lender and the
Administrative Agent
(or the Canadian Administrative Agent, in the case of CDN Swingline
Loans)
irrevocable telephonic notice confirmed promptly in writing (which
telephonic
notice must be received by such Swingline Lender and the
Administrative Agent
(or the Canadian Administrative Agent, in the case of CDN Swingline
Loans) not
later than 12:00 Noon, New York City time, on the proposed
Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date
(which shall be a Business Day during the Revolving Commitment
Period). Each
borrowing under either Swingline Commitment shall be in an amount
equal to
$100,000 or a whole multiple of $50,000 in excess thereof. Not
later than 3:00
P.M., New York City time, on the Borrowing Date specified in a
notice in respect
of Swingline Loans, the relevant Swingline Lender shall make
available to the
Administrative Agent at the US Funding Office or the Canadian
Administrative
Agent at the CDN Funding Office, as applicable, an amount in
immediately
available funds equal to the amount of the Swingline Loan to be
made by such
Swingline Lender. The Administrative Agent or the Canadian
Administrative Agent,
as applicable, shall make the proceeds of such Swingline Loan
available to the
relevant Borrower on such Borrowing Date by depositing such
proceeds in the
account of such Borrower with the Administrative Agent or the
Canadian
Administrative Agent, as applicable, or as otherwise directed by
such Borrower
on such Borrowing Date in immediately available funds.
(b) (i) The US Swingline Lender, at any time and from time to time
in
its sole and absolute discretion may, on behalf of the US Borrower
(which hereby
irrevocably directs the US Swingline Lender to act on its behalf),
on one
Business Day's notice given by the US Swingline Lender no later
than 12:00 Noon,
New York City time, request each US Revolving Lender to make, and
each US
Revolving Lender hereby agrees to make, a US Revolving Loan, in an
amount equal
to such US Revolving Lender's US Revolving Percentage of the
aggregate amount of
the US Swingline Loans (the "Refunded US Swingline Loans")
outstanding on the
date of such notice, to repay the US Swingline Lender. Each US
Revolving Lender
shall make the amount of such US Revolving Loan available to the
Administrative
Agent at the US Funding Office in immediately available funds, not
later than
10:00
<PAGE>
42
A.M., New York City time, one Business Day after the date of such
notice. The
proceeds of such US Revolving Loans shall be immediately made
available by the
Administrative Agent to the US Swingline Lender for application by
the US
Swingline Lender to the repayment of the Refunded US Swingline
Loans.
(ii) The CDN Swingline Lender, at any time and from time to time
in
its
sole and absolute discretion may direct the Canadian
Administrative
Agent to, and the Canadian Administrative Agent shall use
commercially
reasonable efforts to, on behalf of the CDN Borrower (which
hereby
irrevocably directs the CDN Swingline Lender to act on its behalf),
on one
Business Day's notice given by the Canadian Administrative Agent no
later
than
12:00 Noon, New York City time, request each CDN Revolving Lender
to
make, and each CDN Revolving Lender hereby agrees to make, a CDN
Revolving
Loan, in an amount equal to such CDN Revolving Lender's CDN
Revolving
Percentage of the aggregate amount of the CDN Swingline Loans
(the
"Refunded CDN Swingline Loans") outstanding on the date of such
notice, to
repay the CDN Swingline Lender. Each CDN Revolving Lender shall
make the
amount of such CDN Revolving Loan available to the Canadian
Administrative
Agent at the CDN 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 CDN Revolving Loans shall be
immediately
made
available by the Canadian Administrative Agent to the CDN
Swingline
Lender for application by the CDN Swingline Lender to the repayment
of the
Refunded CDN Swingline Loans
(c) If prior to the time a US Revolving Loan or CDN Revolving
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 US Borrower or the CDN Borrower, respectively, or if for any
other reason,
as determined by the relevant Swingline Lender in its sole
discretion, US
Revolving Loans or CDN Revolving Loans, as applicable, may not be
made as
contemplated by Section 2.7(b), each US Revolving Lender or CDN
Revolving
Lender, as applicable, shall, on the date such US Revolving Loan or
CDN
Revolving Loan, as applicable, was to have been made pursuant to
the notice
referred to in Section 2.7(b), purchase for cash an undivided
participating
interest in the then outstanding US Swingline Loans or CDN
Swingline Loans,
respectively, by paying to the relevant Swingline Lender an amount
(the
"Swingline Participation Amount") equal to (i) in the case of US
Swingline
Loans, (A) such US Revolving Lender's US Revolving Percentage times
(B) the sum
of the aggregate principal amount of US Swingline Loans then
outstanding that
were to have been repaid with such US Revolving Loans and (ii) in
the case of
CDN Swingline Loans, (A) such CDN Revolving Lender's CDN Revolving
Percentage
times (B) the sum of the aggregate principal amount of CDN
Swingline Loans then
outstanding that were to have been repaid with such CDN Revolving
Loans.
(d) Whenever, at any time after a Swingline Lender has received
from
any Revolving Lender such Lender's Swingline Participation Amount
with respect
to any Swingline Loans, such Swingline Lender receives any payment
on account of
such Swingline Loans, such Swingline Lender will distribute to such
Lender its
Swingline Participation Amount with respect thereto (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 such Swingline Loans then due); provided, however,
that in the
event that such payment received by such Swingline Lender is
required to be
returned, such Lender will return to such Swingline Lender any
portion thereof
previously distributed to it by such Swingline Lender.
(e) Each Revolving 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
<PAGE>
43
shall not be affected by any circumstance, including (i) any
setoff,
counterclaim, recoupment, defense or other right that such
Revolving Lender or
either Borrower may have against either Swingline Lender, either
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 either Borrower, (iv) any breach of
this Agreement
or any other Loan Document by either Borrower, any other Loan Party
or any other
Lender or (v) any other circumstance, happening or event
whatsoever, whether or
not similar to any of the foregoing.
2.8 Repayment of Loans. (a) The US Borrower hereby
unconditionally
promises to pay to the Administrative Agent for the account of the
appropriate
Revolving Lender or Term Lender, as the case may be, (i) the then
unpaid
principal amount of each Revolving Loan of such Revolving Lender
made to the US
Borrower outstanding on the Revolving Termination Date (or on such
earlier date
on which the Loans become due and payable pursuant to Section 8)
and (ii) the
principal amount of each outstanding Term Loan of such Term Lender
made to the
US Borrower in installments according to the relevant 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). The US Borrower hereby further
agrees to pay
interest on the unpaid principal amount of the Loans made to the US
Borrower
from time to time outstanding from the date hereof until payment in
full thereof
at the rates per annum, and on the dates, set forth in Section
2.15.
(b) The CDN Borrower hereby unconditionally promises to pay to
the
Canadian Administrative Agent for the account of the appropriate
Revolving
Lender or Term Lender, as the case may be, (i) the then unpaid
principal amount
of each CDN Revolving Loan of such Revolving Lender made to the CDN
Borrower
outstanding on the Revolving Termination Date (or on such earlier
date on which
the Loans become due and payable pursuant to Section 8) and (ii)
the principal
amount of each outstanding Term Loan of such Term Lender made to
the CDN
Borrower in installments according to the relevant 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). The CDN Borrower hereby further
agrees to pay
interest and fees, as applicable on the unpaid principal amount of
the Loans
(including the Face Amount of all B/As) made to such CDN Borrower
from time to
time outstanding from the date hereof until payment in full thereof
at the rates
per annum, and on the dates, set forth in Section 2.15 and Section
2.25.
(c) Each Lender shall maintain in accordance with its usual
practice
an account or accounts evidencing indebtedness of each Borrower to
such Lender
resulting from each Loan of such Lender from time to time,
including the amounts
of principal (including the Face Amount of all B/As) and interest
payable and
paid to such Lender from time to time under this Agreement.
(d) The Administrative Agent, on behalf of the applicable
Borrower,
shall maintain the Register pursuant to Section 10.6(b)(iv), 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 or Contract Period applicable thereto, (ii) the
amount of any
principal (including the Face Amount of all B/As), interest and
fees, as
applicable, due and payable or to become due and payable from the
relevant
Borrower to each Lender hereunder and (iii) both the amount of any
sum received
by the Administrative Agent and the Canadian Administrative Agent
hereunder from
the relevant Borrower and each Lender's share thereof.
(e) The
entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.8(c) shall, to the extent
permitted by
applicable law, be prima facie evidence of the existence and
amounts of the
obligations of the relevant Borrower therein recorded; provided,
however, that
the failure of the Administrative Agent or any Lender to maintain
the Register
or any such account, or any error therein, shall not in any manner
affect the
obligation of the relevant Borrower to repay (with
<PAGE>
44
applicable interest) the Loans made to such Borrower by such Lender
in
accordance with the terms of this Agreement.
2.9 Commitment Fees, etc. (a) The US Borrower agrees to pay to
the
Administrative Agent for the account of each US Revolving Lender a
commitment
fee for the period from and including the Closing Date to the last
day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on
the average
daily amount of the Available US Revolving Commitment of such
Lender during the
period for which payment is made, payable quarterly in arrears on
each Fee
Payment Date, commencing on the first such date to occur after the
date hereof.
(b) The CDN Borrower agrees to pay to the Canadian
Administrative
Agent for the account of each CDN Revolving Lender a commitment fee
for the
period from and including the Closing Date to the last day of the
Revolving
Commitment Period, computed at the Commitment Fee Rate on the
average daily
amount of the portion of the Available CDN Revolving Commitment of
such Lender
made available to the CDN Borrower during the period for which
payment is made,
payable quarterly in arrears on each Fee Payment Date, commencing
on the first
such date to occur after the date hereof.
(c) The US Borrower agrees to pay to the Administrative Agent for
the
account of each CDN Revolving Lender a commitment fee for the
period from and
including the Closing Date to the last day of the Revolving
Commitment Period,
computed at the Commitment Fee Rate on the average daily amount of
the portion
of the Available CDN Revolving Commitment of such Lender made
available to the
US Borrower (without duplication of Section 2.9(b) above) during
the period for
which payment is made, payable quarterly in arrears on each Fee
Payment Date,
commencing on the first such date to occur after the date
hereof.
(d) The US Borrower agrees to pay to the Administrative Agent the
fees
in the amounts and on the dates as set forth in any fee agreements
with the
Administrative Agent.
2.10 Termination or Reduction of Revolving Commitments. The US
Borrower (and, with respect to the CDN Revolving Commitments only,
the CDN
Borrower) shall have the right, upon not less than two Business
Days' notice to
the Administrative Agent (and the Canadian Administrative Agent, in
the case of
the CDN Revolving Commitments), to terminate the US Revolving
Commitments and/or
the CDN Revolving Commitments, as the case may be, or, from time to
time, to
reduce the amount of the US Revolving Commitments and/or CDN
Revolving
Commitments, as the case may be; provided that no such termination
or reduction
of such Revolving Commitments shall be permitted if, after giving
effect thereto
and to any prepayments of the US Revolving Loans or the CDN
Revolving Loans, as
the case may be, made on the effective date thereof, the Total US
Revolving
Extensions of Credit or the Total CDN Revolving Extensions of
Credit, as
applicable, would exceed the Total US Revolving Commitments or the
Total CDN
Revolving Commitments, respectively. Any such reduction shall be in
an amount
equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently
the US Revolving Commitments or CDN Revolving Commitments, as the
case may be,
then in effect.
2.11 Optional Prepayments. (a) The US Borrower may at any time
and
from time to time prepay the US Revolving Loans or the US Term
Loans, in whole
or in part, without premium or penalty, upon irrevocable notice
delivered to the
Administrative Agent no later than 1:00 P.M., New York City time,
three Business
Days prior thereto, in the case of Eurocurrency Loans, and no later
than 1:00
P.M., New York City time, one Business Day prior thereto, in the
case of ABR
Loans, which notice shall specify (i) the date and amount of
prepayment, (ii)
whether the prepayment is of US Revolving Loans or US Term Loans
and (iii)
whether the prepayment is of Eurocurrency Loans or ABR Loans;
provided, that if
a Eurocurrency Loan is prepaid on any day other than the last day
of the
Interest Period applicable thereto, the US Borrower shall also pay
any amounts
owing pursuant to Section 2.21. Upon receipt of
<PAGE>
45
any such notice the Administrative Agent 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 Revolving Loans that are ABR Loans and US Swingline
Loans) accrued
interest to such date on the amount prepaid. Partial prepayments of
US Term
Loans and US Revolving Loans shall be in an aggregate principal
amount of (i)
$1,000,000 or a whole multiple of $100,000 in excess thereof (in
the case of
prepayments of ABR Loans) or (ii) $1,000,000 or a whole multiple of
$500,000 in
excess thereof (in the case of prepayments of Eurocurrency Loans),
and in each
case shall be subject to the provisions of Section 2.18. Partial
prepayments of
US Swingline Loans shall be in an aggregate principal amount of
$50,000 or a
whole multiple of $50,000 in excess thereof.
(b) The CDN Borrower and the US Borrower may at any time and from
time
to time prepay the CDN Revolving Loans (other than Bankers'
Acceptances) or the
CDN Term Loans (other than Bankers' Acceptances), in whole or in
part, without
premium or penalty, upon irrevocable notice delivered to the
Canadian
Administrative Agent and the Administrative Agent no later than
1:00 P.M., New
York City time, three Business Days prior thereto (in the case of
Eurocurrency
Loans) or one Business Day prior thereto (in the case of ABR Loans,
CDN ABR
Loans and CDN Prime Loans), which notice shall specify (i) the date
and amount
of prepayment, (ii) whether the prepayment is of CDN Revolving
Loans, C$ CDN
Term Loans or US$ CDN Term Loans and (iii) whether the prepayment
is of
Eurocurrency Loans, CDN Prime Loans, CDN ABR Loans or ABR Loans;
provided, that
if a Eurocurrency Loan is prepaid on any day other than the last
day of the
Interest Period applicable thereto, the relevant Borrower shall
also pay any
amounts owing pursuant to Section 2.21. Upon receipt of any such
notice the
Canadian Administrative Agent (or, if such notice is received from
the US
Borrower, the Administrative Agent) 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 CDN Swingline Loans and CDN Revolving Loans that are ABR
Loans, CDN ABR
Loans or CDN Prime Loans) accrued interest to such date on the
amount prepaid.
Partial prepayments of C$ CDN Term Loans and C$ CDN Revolving Loans
shall be in
an aggregate principal amount of C$1,000,000 or a whole multiple of
C$100,000 in
excess thereof (in the case of prepayments of CDN Prime Loans) or
C$1,000,000 or
a whole multiple of C$500,000 in excess thereof (in the case of
prepayments of
Eurocurrency Loans) and shall be subject to the provisions of
Section 2.18.
Partial prepayments of US$ CDN Revolving Loans and US$ CDN Term
Loans shall be
in an aggregate principal amount of $1,000,000 or a whole multiple
of $100,000
in excess thereof (in the case of prepayments of ABR Loans or CDN
ABR Loans) or
$1,000,000 or a whole multiple of $500,000 in excess thereof (in
the case of
prepayments of Eurocurrency Loans) and shall be subject to the
provisions of
Section 2.18. Partial prepayments of CDN Swingline Loans shall be
in an
aggregate principal amount of C$50,000 or a whole multiple of
C$50,000 in excess
thereof.
(c) Notwithstanding the foregoing, any voluntary prepayment of
Term
Loans (other than in connection with a refinancing of all Loans
under the US
Term Facility and the Revolving Facility (including any refinancing
of all Loans
hereunder)) that results in the prepayment of all or any portion of
the
outstanding Term Loans on or prior to the first anniversary of the
Closing Date
with the proceeds of new term loans that have an applicable margin
that is less
than the Applicable Margin for the Term Loans may only be made if
each Term
Lender is paid a prepayment premium of 1% of the principal amount
of such
Lender's Term Loans being prepaid on the date of such
prepayment.
2.12 Mandatory Prepayments and Commitment Reductions. (a) Unless
the
Required Prepayment Lenders shall otherwise agree, (i) if any
Indebtedness
(excluding any Indebtedness incurred in accordance with Section
7.2) shall be
incurred by any US Loan Party an amount equal to 100% of the Net
Cash Proceeds
thereof shall be applied on the date of receipt of such Net Cash
Proceeds toward
the prepayment of the US Term Loans as set forth in Section 2.12(e)
and (ii) if
any Indebtedness (excluding Indebtedness incurred in accordance
with Section
7.2) shall be incurred by the CDN Borrower or any
<PAGE>
46
CDN Subsidiary Guarantor, an amount equal to 100% of the Net Cash
Proceeds
thereof shall be applied on the date of receipt of such Net Cash
Proceeds toward
the prepayment of the CDN Term Loans as set forth in Section
2.12(e).
(b) Unless the Required Lenders shall otherwise agree, (i) if on
any
date any US Loan Party shall for its own account receive Net Cash
Proceeds from
any Asset Sale or Recovery Event then, unless a Reinvestment Notice
shall be
delivered in respect thereof, such Net Cash Proceeds shall be
applied on such
date toward the prepayment of the US Term Loans and the reduction
of the US
Revolving Commitments as set forth in Section 2.12(e) and (ii) if
on any date
the CDN Borrower or any CDN Subsidiary Guarantor shall for its own
account
receive Net Cash Proceeds from any Asset Sale or Recovery Event (a
"CDN
Reinvestment Event") then, unless a Reinvestment Notice shall be
delivered in
respect thereof, such Net Cash Proceeds shall be applied on such
date toward the
prepayment of the CDN Term Loans and the reduction of the CDN
Revolving
Commitments as set forth in Section 2.12(e); provided, that,
notwithstanding the
foregoing, (x) on each Reinvestment Prepayment Date, the US Term
Loans shall be
prepaid and/or the US Revolving Commitments shall be reduced (or,
with respect
to any CDN Reinvestment Event, the CDN Term Loans shall be prepaid
and/or the
CDN Revolving Commitments shall be reduced) as set forth in Section
2.12(e) by
an amount equal to the Reinvestment Prepayment Amount with respect
to the
relevant Reinvestment Event and (y) on the date (the "Trigger
Date") that is six
months after any such Reinvestment Prepayment Date, the US Term
Loans shall be
prepaid and/or the US Revolving Commitments shall be reduced (or,
with respect
to any CDN Reinvestment Event, the CDN Term Loans shall be prepaid
and/or the
CDN Revolving Commitments shall be reduced) as set forth in Section
2.12(e) by
an amount equal to the portion of any Committed Reinvestment Amount
with respect
to the relevant Reinvestment Event not actually expended by such
Trigger Date.
(c) Unless the Required Lenders shall otherwise agree, if on any
date
Holdings or any of its Subsidiaries shall receive for its own
account proceeds
from any tax refund with respect to any period ending on or prior
to the first
anniversary of the Closing Date to the extent resulting from the
redemption of
stock options on the Closing Date, an amount equal to (i) the
amount of such
proceeds minus (ii) the amount of cash on hand of the US Borrower
on the Closing
Date after giving effect to the Transaction, shall be applied on
the date of
such receipt toward the prepayment of the Revolving Loans or the
Term Loans as
set forth in Section 2.12(e).
(d) Unless the Required Prepayment Lenders shall otherwise agree,
if,
for any fiscal year of the US Borrower commencing with the fiscal
year ending
December 31, 2006, there shall be Excess Cash Flow, the US Borrower
shall, on
the relevant Excess Cash Flow Application Date, apply an amount
equal to (i) the
Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the
aggregate
amount of all prepayments of Revolving Loans and Swingline Loans
during such
fiscal year to the extent accompanied by permanent optional
reductions of the
Revolving Commitments and all optional prepayments of the Term
Loans during such
fiscal year, in each case other than to the extent any such
prepayment is funded
with the proceeds of new long-term Indebtedness, toward the
prepayment of the US
Term Loans as set forth in Section 2.12(e). Each such prepayment
shall be made
on a date (an "Excess Cash Flow Application Date") no later than
ten days after
the date on which the financial statements of the US 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.
(e) Amounts to be applied in connection with prepayments pursuant
to
paragraphs (a) and (d) above shall be applied to the prepayment of
the US Term
Loans (or the CDN Term Loans, as applicable) in accordance with
Section 2.18(b)
until paid in full. Amounts to be applied in connection with
prepayments and
Commitment reductions pursuant to paragraph (b) above shall be
applied, first,
to the prepayment of the US Term Loans (or the CDN Term Loans, as
applicable) in
accordance with
<PAGE>
47
Section 2.18(b) until paid in full and, second, to reduce
permanently the US
Revolving Credit Commitments (or the CDN Revolving Commitments, as
applicable)
on a ratable basis. Amounts to be applied in connection with
prepayments
pursuant to paragraph (c) above shall be applied, at the US
Borrower's option,
either (x) to the prepayment of the Term Loans in accordance with
Section
2.18(b) or (y) solely to the prepayment of the Revolving Credit
Loans (without
any corresponding permanent reduction of the related Revolving
Commitments) in
accordance with Section 2.18(c). Any reduction of the Revolving
Commitments
shall be accompanied by prepayment of the Revolving Loans to the
extent, if any,
that the Total US Revolving Extensions of Credit exceed the amount
of the Total
US Revolving Commitments as so reduced or the Total CDN Revolving
Extensions of
Credit exceed the amount of the Total CDN Revolving Commitments as
so reduced,
as applicable, provided that if the aggregate principal amount of
US Revolving
Loans or CDN Revolving Loans (other than B/As), respectively, then
outstanding
is less than the amount of such excess (because L/C Obligations
and/or B/As
constitute a portion thereof), the relevant Borrower shall, to the
extent of the
balance of such excess, replace outstanding Letters of Credit
and/or deposit an
amount in cash in a cash collateral account established with the
Administrative
Agent (or the Canadian Administrative Agent, in the case of CDN
Letters of
Credit or B/As) for the benefit of the relevant Lenders on terms
and conditions
reasonably satisfactory to the Administrative Agent (or the
Canadian
Administrative Agent, in the case of Letters of Credit issued for
the account of
the CDN Borrower or B/As). The application of any prepayment
pursuant to Section
2.12 shall be made, first, to ABR Loans, CDN ABR Loans or CDN Prime
Loans, as
the case may be, and, second, to Eurocurrency Loans. Each
prepayment of the
Loans under Section 2.12 shall be accompanied by accrued interest
to the date of
such prepayment on the amount prepaid.
(f) If at any time the Revolving Extensions of Credit of any
Lender
exceeds 105% of the Revolving Commitments of such Lender, as a
result of the
fluctuation of currency values, the relevant Borrower shall
immediately repay
the aggregate outstanding CDN Revolving Loans (other than Bankers'
Acceptances)
to the extent required to eliminate such excess. If any such excess
remains
after repayment in full of the aggregate outstanding CDN Revolving
Loans (other
than Bankers' Acceptances), the relevant Borrower shall provide
cash collateral
for CDN L/C Obligations or the B/As, as applicable, to the extent
required to
eliminate such excess, in form and substance reasonably
satisfactory to the
Canadian Administrative Agent.
(g) Notwithstanding anything to the contrary in this Agreement,
the
aggregate principal amount of all prepayments of the CDN Term Loans
required to
be made pursuant to any provisions of this Section 2.12, together
with the
aggregate principal amount of all payments of the CDN Term Loans
required to be
made pursuant to Section 2.3(b) prior to the day that is one day
after the fifth
anniversary of the Closing Date, shall not, at any time prior to
the date that
is one day after the fifth anniversary of the Closing Date, exceed
in the
aggregate an amount equal to 25% of the initial principal amount of
the CDN Term
Loans (the "Maximum Amount"); provided that the foregoing shall not
preclude a
CDN Term Lender from receiving principal payments in excess of the
foregoing
amounts upon or in connection with any Event of Default pursuant to
Section 8(f)
or in connection with any voluntary prepayment. Any prepayment
amount required
to be made in respect of the CDN Term Loans (or portion thereof) in
excess of
the Maximum Amount shall be reallocated to the prepayment of the US
Term Loans
(until repaid in full) to the extent that such prepayment amount
represents Net
Cash Proceeds or proceeds received by the US Borrower or its
Subsidiaries (other
than any CDN Loan Party) or is attributable to Excess Cash
Flow.
2.13 Conversion and Continuation Options. (a) Each Borrower may
elect
from time to time to convert Eurocurrency Loans made to such
Borrower (other
than C$ CDN Revolving Loans made to the US Borrower) to ABR Loans
(or CDN ABR
Loans, in the case of US$ CDN Revolving Loans made to the CDN
Borrower) by
giving the Administrative Agent (or the Canadian Administrative
Agent, in the
case of the CDN Borrower) prior irrevocable notice of such election
no later
than 1:00 P.M., New York City time, on the Business Day preceding
the proposed
conversion date, provided, that if any
<PAGE>
48
Eurocurrency Loan is so converted on any day other than the last
day of the
Interest Period applicable thereto, the relevant Borrower shall
also pay any
amounts owing pursuant to Section 2.21. Each Borrower may elect
from time to
time to convert ABR Loans (or CDN ABR Loans, in the case of the CDN
Borrower)
made to such Borrower to Eurocurrency Loans by giving the
Administrative Agent
(or the Canadian Administrative Agent, in the case of the CDN
Borrower) prior
irrevocable notice of such election no later than 1:00 P.M., New
York City time,
on the third Business Day preceding the proposed conversion date
(which notice
shall specify the length of the initial Interest Period therefor),
provided that
no ABR Loan or CDN ABR Loans, as the case may be, under a
particular Facility
may be converted into a Eurocurrency Loan when any Event of Default
has occurred
and is continuing and the Administrative Agent (or the Canadian
Administrative
Agent, in the case of each CDN Term Facility and the CDN Revolving
Facility) or
the Majority Facility Lenders in respect of such Facility have
determined in its
or their sole discretion not to permit such conversions. Upon
receipt of any
such notice the Administrative Agent (or the Canadian
Administrative Agent, as
applicable) shall promptly notify each relevant Lender thereof.
(b) Any Eurocurrency Loan may be continued as such by the
relevant
Borrower giving irrevocable notice to the Administrative Agent (or
the Canadian
Administrative Agent, with respect to the CDN Term Loans or CDN
Revolving
Loans), in accordance with the applicable provisions of the term
"Interest
Period" set forth in Section 1.1 and no later than 1:00 P.M., New
York City
time, on the third Business Day preceding the proposed continuation
date, of the
length of the next Interest Period to be applicable to such Loans,
provided,
that if any Eurocurrency Loan is so continued on any day other than
the last day
of the Interest Period applicable thereto, the relevant Borrower
shall also pay
any amounts owing pursuant to Section 2.21, and provided, further,
that no
Eurocurrency Loan under a particular Facility may be continued as
such when any
Event of Default has occurred and is continuing and the
Administrative Agent (or
the Canadian Administrative Agent, if applicable) has or the
Majority Facility
Lenders in respect of such Facility have determined in its or their
sole
discretion not to permit such continuations, and provided, further,
that if the
relevant Borrower shall fail to give any required notice as
described above in
this paragraph or if such continuation is not permitted pursuant to
the
preceding proviso such Loans shall be automatically converted to
ABR Loans (or
CDN ABR Loans, in the case of US$ CDN Revolving Loans made to the
CDN Borrower)
on the last day of such then expiring Interest Period. Upon receipt
of any such
notice the Administrative Agent (or the Canadian Administrative
Agent, as the
case may be) shall promptly notify each relevant Lender
thereof.
(c) The CDN Borrower may elect to convert any CDN Prime Loan to
B/As,
subject to the provisions of Section 2.25, by giving the Canadian
Administrative
Agent irrevocable notice no later than 2:00 P.M., New York City
time, three (3)
Business Days prior to the date of conversion (which notice shall
specify the
amount to be converted and the length of the Contract Period
therefor);
provided, that no such conversion shall be permitted when an Event
of Default
has occurred and is continuing.
2.14 Minimum Amounts and Maximum Number of Eurocurrency
Tranches.
Notwithstanding anything to the contrary in this Agreement, all
borrowings,
conversions, continuations and optional prepayments of Eurocurrency
Loans, B/As
and all selections of Interest Periods, and Contract Periods
applicable to B/As,
shall be in such amounts and be made pursuant to such elections so
that (a)
after giving effect thereto, the aggregate principal amount of the
Eurocurrency
Loans comprising each Eurocurrency Tranche shall be equal to a
minimum of
$3,000,000 or a whole multiple of $500,000 in excess thereof, (b)
no more than
ten Eurocurrency Tranches shall be outstanding at any one time and
(c) no more
than six Contract Periods in respect of Bankers' Acceptances shall
be
outstanding at any one time.
<PAGE>
49
2.15 Interest Rates and Payment Dates. (a) Each Eurocurrency
Loan
shall bear interest for each day during each Interest Period with
respect
thereto at a rate per annum equal to the Eurocurrency Rate
determined for such
day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the
ABR plus the Applicable Margin, and each CDN ABR Loan shall bear
interest at a
rate per annum equal to the CDN ABR plus the Applicable Margin.
(c) Each CDN Prime Loan shall bear interest at a rate per annum
equal
to the CDN Prime Rate plus the Applicable Margin.
(d) Each Bankers' Acceptance shall be subject to an Acceptance
Fee
payable as set forth in Section 2.25.
(e) (i) If all or a portion of the principal amount of any Loan
(including the Face Amount of any outstanding B/A) or Reimbursement
Obligation
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
(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% or (y) in
the case of Reimbursement Obligations, the rate applicable to ABR
Loans under
the US Revolving Facility (or, with respect to Letters of Credit
denominated in
CDN Dollars, the rate applicable to CDN Prime Loans under the CDN
Revolving
Facility) plus 2%, 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 ABR Loans, CDN ABR
Loans or CDN
Prime Loans, as applicable, under the relevant Facility plus 2%
(or, in the case
of any such other amounts that do not relate to a particular
Facility, the rate
then applicable to ABR Loans under the Revolving Facility plus 2%),
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 (as well after as
before
judgment).
(f) Interest shall be payable by the relevant Borrower 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.
2.16 Computation of Interest and Fees. (a) Interest and fees
payable
pursuant hereto shall be calculated on the basis of a 360-day year
for the
actual days elapsed, except that, with respect to CDN Prime Loans,
CDN ABR Loans
and ABR Loans the rate of interest on which is calculated on the
basis of the
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 and
Acceptance
Fees and commitment fees and interest calculated on the basis of
the CDOR Rate
shall be calculated on the basis of a 365- day year for the actual
days elapsed.
The Administrative Agent shall as soon as practicable notify the
relevant
Borrower and the relevant Lenders of each determination of a
Eurocurrency Rate.
Any change in the interest rate on a Loan resulting from a change
in the ABR,
the CDN ABR, the CDN Prime 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 the Canadian
Administrative
Agent, as applicable, shall as soon as practicable notify the
relevant Borrower
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 the Canadian Administrative Agent, as applicable, pursuant to
any provision
of this Agreement shall be presumptively correct in the absence of
manifest
error. The Administrative Agent or the Canadian Administrative
<PAGE>
50
Agent, as applicable, shall, at the request of the relevant
Borrower, deliver to
such Borrower a statement showing the quotations used by the
Administrative
Agent or the Canadian Administrative Agent, as applicable, in
determining any
interest rate pursuant to Section 2.15(a).
(c) For the purposes of the Interest Act (Canada), in any case
in
which an interest or fee rate is stated in this Agreement to be
calculated on
the basis of a number of days that is other than the number in a
calendar year,
the yearly rate, to which such interest or fee rate is equivalent,
is equal to
such interest or fee rate multiplied by the actual number of days
in the year in
which the relevant interest or fee payment accrues and divided by
the number of
days used as the basis for such calculation.
2.17 Inability to Determine Interest Rate. If prior to the first
day
of any Interest Period:
(a) the Administrative Agent or the Canadian Administrative
Agent
(with respect to US$ CDN Revolving Loans and US$ CDN Term Loans
only) shall
have
determined (which determination shall be presumptively correct
absent
manifest error) that, by reason of circumstances affecting the
relevant
market, adequate and reasonable means do not exist for ascertaining
the
Eurocurrency Rate for such Interest Period, or
(b) the Administrative Agent or the Canadian Administrative
Agent
(with respect to US$ CDN Revolving Loans and US$ CDN Term Loans
only) shall
have
received notice from the Majority Facility Lenders in respect of
the
relevant Facility that by reason of any changes arising after the
date of
this
Agreement the Eurocurrency Rate determined or to be determined
for
such
Interest Period will not adequately and fairly reflect the cost
to
such
Lenders (as certified by such Lenders) of making or maintaining
their
affected Loans during such Interest Period,
the Administrative Agent or the Canadian Administrative Agent, as
applicable,
shall give telecopy or telephonic notice thereof to the relevant
Borrower and
the relevant Lenders as soon as practicable thereafter. If such
notice is given
(x) any Eurocurrency Loans under the relevant Facility requested to
be made on
the first day of such Interest Period shall be made as ABR Loans or
CDN ABR
Loans, as applicable, (y) any Loans under the relevant Facility
that were to
have been converted on the first day of such Interest Period to
Eurocurrency
Loans shall be continued as ABR Loans or CDN ABR Loans, as
applicable and (z)
any outstanding Eurocurrency Loans under the relevant Facility
shall be
converted, on the last day of the then-current Interest Period with
respect
thereto, to ABR Loans or CDN ABR Loans, as applicable. Until such
notice has
been withdrawn by the Administrative Agent or the Canadian
Administrative Agent,
as applicable (which action such Administrative Agent or the
Canadian
Administrative Agent, as applicable, will take promptly after the
conditions
giving rise to such notice no longer exist), no further
Eurocurrency Loans under
the relevant Facility shall be made or continued as such, nor shall
the relevant
Borrower have the right to convert Loans under the relevant
Facility to
Eurocurrency Loans.
2.18 Pro Rata Treatment and Payments. (a) Each borrowing by the
Borrowers from the Lenders hereunder, each payment by the Borrowers
on account
of any commitment fee and any reduction of the Revolving
Commitments of the
Lenders shall be made pro rata according to the respective US Term
Percentages,
C$ CDN Term Percentages, US$ CDN Term Percentages, US Revolving
Percentages or
CDN Revolving Percentages, as the case may be, of the relevant
Lenders. Each
payment (other than prepayments) in respect of principal (or th
