XXXXXXXXX XXXXX (CANADA) CORPORATION
as Borrower
and
FIRST CHICAGO NBD BANK, CANADA
as Lender
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CREDIT AGREEMENT
JULY 30, 1999
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STIKEMAN, XXXXXXX
TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION
Section 1.1 Defined Terms.................................................1
Section 1.2 Gender and Number.............................................7
Section 1.3 Interpretation not Affected by Headings, etc..................7
Section 1.4 Currency......................................................7
Section 1.5 Certain Phrases, etc..........................................7
Section 1.6 Accounting Terms..............................................8
Section 1.7 Incorporation of Schedules....................................8
Section 1.8 Conflict......................................................8
ARTICLE 2
CREDIT FACILITY
Section 2.1 Availability..................................................8
Section 2.2 Commitments and Facility Limits...............................8
Section 2.3 Use of Proceeds...............................................8
Section 2.4 Mandatory Repayments..........................................9
Section 2.5 Optional Prepayments; Mandatory Prepayments...................9
Section 2.6 Reduction of the Commitment...................................9
Section 2.7 Payments under this Agreement.................................9
Section 2.8 Application of Payments and Prepayments......................10
Section 2.9 Computations of Interest and Fees............................10
ARTICLE 3
ADVANCES
Section 3.1 The Advances.................................................11
Section 3.2 Procedure for Borrowing......................................11
Section 3.3 Conversions and Elections Regarding Advances.................11
Section 3.4 Interest on Advances.........................................11
ARTICLE 4
BANKERS' ACCEPTANCES
Section 4.1 Acceptances and Drafts.......................................11
Section 4.2 Form of Drafts...............................................12
Section 4.3 Procedure for Drawing........................................12
Section 4.4 Presigned Power of Attorney..................................13
Section 4.5 Payment, Conversion or Renewal of BA Instruments.............13
Section 4.6 Circumstances Making Bankers' Acceptances Unavailable........13
(i)
ARTICLE 5
DOCUMENTARY CREDITS
Section 5.1 Documentary Credits..........................................14
Section 5.2 Procedure for Issue..........................................14
Section 5.3 Form of Documentary Credits..................................15
Section 5.4 Use of Documentary Credits...................................15
Section 5.5 Reimbursements of Amounts Drawn; Exchange Rate Fluctuations..15
Section 5.6 Risk of Documentary Credits..................................15
Section 5.7 Fees.........................................................16
Section 5.8 Repayments...................................................16
ARTICLE 6
CONDITIONS OF LENDING
Section 6.1 Conditions Precedent to the Initial Accommodation............17
Section 6.2 Conditions Precedent to Accommodations and Conversions.......19
Section 6.3 No Waiver....................................................19
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.1 Representations and Warranties...............................20
Section 7.2 Survival of Representations and Warranties...................20
ARTICLE 8
COVENANTS OF THE BORROWER
Section 8.1 Affirmative Covenants........................................21
Section 8.2 Negative Covenants...........................................22
Section 8.3 Financial Covenants..........................................22
ARTICLE 9
EVENTS OF DEFAULT
Section 9.1 Events of Default............................................22
Section 9.2 Remedies Upon Default........................................23
ARTICLE 10
MISCELLANEOUS
Section 10.1 Amendment....................................................24
Section 10.2 Waiver.......................................................24
Section 10.3 Evidence of Debt and Accommodation Notices...................24
Section 10.4 Notices, etc.................................................25
Section 10.5 Confidentiality..............................................25
Section 10.6 Costs, Expenses and Indemnity................................26
(ii)
Section 10.7 Taxes and Other Taxes........................................27
Section 10.8 Successors and Assigns.......................................29
Section 10.9 Right of Set-off.............................................30
Section 10.10 Judgment Currency............................................30
Section 10.11 Interest on Accounts.........................................31
Section 10.12 Governing Law................................................31
Section 10.13 Counterparts.................................................31
SCHEDULES
SCHEDULE 4.3(1) FORM OF DRAWING NOTICE
SCHEDULE 5.2(1) FORM OF ISSUE NOTICE
SCHEDULE 7.1(b) SUBSIDIARIES
SCHEDULE 10.8(5) ASSIGNMENT AND ASSUMPTION AGREEMENT
(iii)
CREDIT AGREEMENT
Credit Agreement dated July 30, 1999 among Xxxxxxxxx Xxxxx (Canada)
Corporation, as borrower, and First Chicago NBD Bank, Canada, as lender.
RECITALS:
(a) First Chicago NBD Bank, Canada, as lender, and Xxxxxxxxx Xxxxx
(Canada) Corporation, as borrower, among others, have entered
into a term sheet dated June 8, 1999 setting out the terms and
conditions of a U.S. $5,000,000 revolving credit and letter of
credit facility.
ARTICLE 1
INTERPRETATION
SECTION 1.1 DEFINED TERMS.
As used in this Agreement, the following terms have the following
meanings:
"ACCOMMODATION" means (i) an Advance made by the Lender on the occasion
of any Borrowing, and (ii) the creation and purchase of Bankers'
Acceptances or the purchase of completed Drafts or BA Equivalent Notes
by the Lender or by any other Person on the occasion of any Drawing, and
(iii) the issue of a Documentary Credit on the occasion of any Issue
(each of which is a "TYPE" of Accommodation).
"ACCOMMODATION NOTICE" means a Borrowing Notice or a Drawing Notice.
"ACCOMMODATIONS OUTSTANDING" means an amount equal to the sum of (i) the
aggregate principal amount of all outstanding Advances made by the
Lender, (ii) the aggregate Face Amount of all outstanding Bankers'
Acceptances, completed Drafts and BA Equivalent Notes which the Lender
has purchased or arranged to have purchased, and (iii) the aggregate
Face Amount of all Documentary Credits.
"ADVANCES" means advances made by the Lender under Article 3 and
"ADVANCE" means any one of such advances.
"AGREEMENT" means this credit agreement and all schedules and
instruments in amendment or confirmation of it; and the expressions
"ARTICLE" and "SECTION" followed by a number mean and refer to the
specified Article or Section of this Agreement.
"APPLICABLE MARGIN" means, at any time, 0.25%.
"ASSIGNEE" has the meaning specified in Section 10.8.
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"ASSIGNMENT OF BOOK DEBTS" means the assignment of book debts to be
executed and delivered by the Borrower as amended, restated and
otherwise modified from time to time.
"AUTHORIZED OFFICER" means any of the Chairman, President, Chief
Executive Officer, Vice President-Chief Financial Officer,
Secretary/Treasurer, or Assistant Secretary of the Borrower, acting
singly.
"BANKERS' ACCEPTANCE" has the meaning specified in Section 4.1.
"BA EQUIVALENT NOTE" has the meaning specified in Section 4.3(3).
"BA INSTRUMENTS" means, collectively, Bankers' Acceptances, Drafts and
BA Equivalent Notes, and, in the singular, any one of them.
"BENEFICIARY" means, in respect of any Documentary Credit, the
beneficiary named in the Documentary Credit.
"BORROWER" means, at any time, Xxxxxxxxx Xxxxx (Canada) Coporation and
its successors and permitted assigns.
"BORROWER'S ACCOUNT" means the Borrower's Canadian Dollar account
maintained by the Lender at its principal office, the particulars of
which shall have been notified by the Lender to the Borrower.
"BORROWING" means a borrowing consisting of one or more Advances.
"BORROWING NOTICE" has the meaning specified in Section 3.2.
"BUSINESS DAY" means any day of the year, other than a Saturday, Sunday
or other day on which banks are required or authorized to close in
Toronto, Ontario or Chicago, Illinois.
"CBCA" means the CANADA BUSINESS CORPORATIONS ACT.
"CANADIAN DOLLARS", and "CDN. $" each means lawful money of Canada.
"CANADIAN PENSION PLAN" means any plan, program, arrangement or
understanding that is a pension plan for the purposes of any applicable
pension benefits or tax laws of Canada or a province or territory
thereof (whether or not required to be registered under any such laws)
which is maintained, administered or contributed to by (or to which
there is or may be an obligation to contribute by) the Borrower or any
of its Subsidiaries (except for any pension plan maintained by any
employee bargaining unit) in respect of any Person's employment in
Canada or a province or territory thereof, all related funding
agreements and all related agreements, arrangements and understandings
in respect of, or related to, any benefits to be provided thereunder.
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"CANADIAN PRIME RATE" means, at any time, the per annum rate of interest
quoted, published and commonly known as the "prime rate" of the Lender
which the Lender establishes at its main office in Toronto, Ontario as
the reference rate of interest in order to determine interest rates for
loans in Canadian Dollars to its Canadian borrowers, adjusted
automatically with each quoted or published change in such rate, all
without the necessity of any notice to the Borrower or any other Person.
"COLLATERAL" means all property and interests in property now owned or
hereafter acquired by the Parent, the Borrower or any of the Borrower's
Subsidiaries in or upon which a lien is granted to the Lender; provided
that any such property or interest in property with respect to which the
Lien created pursuant to any of the Credit Documents has been released
in accordance with the terms thereof shall not constitute Collateral.
"COMMITMENT" means, at any time, the Equivalent Cdn. $ Amount of U.S.
$5,000,000, as reduced pursuant to Article 2.
"COMPLIANCE CERTIFICATE" means a certificate of the Borrower,
substantially in the form of Schedule 8.1(a)(iv)(I), signed on its
behalf by an Authorized Officer.
"CREDIT DOCUMENTS" means this Agreement, the BA Instruments, the
Security Documents or the Parent Guarantee entered into with, or
delivered to or in favour of, the Lender and all other documents to be
executed and delivered to the Lender by the Borrower and the Material
Subsidiaries.
"CREDIT FACILITY" means the revolving term credit and letter of credit
facility to be made available to the Borrower under this Agreement for
the purposes specified in Section 2.3.
"DEFAULT" has the meaning specified in Section 9.1.
"DISCOUNT RATE" means, in respect of any Bankers' Acceptances or Drafts
to be purchased pursuant to Article 4 by the Lender or any Facility
Participant to which the Lender has participated or assigned all or any
part of its interest in the Credit Facility, the lesser of (i) the rate
per annum plus 10 basis points for Canadian Dollar bankers' acceptances
that appears on the Reuters Screen CDOR Page as of 10:00 a.m. (Toronto
time) on the relevant Drawing Date (and if such screen is not available,
any successor or similar service as may be selected by the Lender) for
Bankers' Acceptances or Drafts having an aggregate Face Amount equal to
and with a term to maturity the same as the Bankers' Acceptances or
Drafts to be acquired by the Lender or Facility Participant on the
Drawing Date, and (ii) the discount rate (calculated on an annual basis
and rounded to the nearest one-hundredth of 1%, with five-thousandths of
1% being rounded up) quoted by the Lender at 9:30 a.m. (Toronto time) as
the discount rate at which the Lender would purchase, on the relevant
Drawing Date, its own Bankers' Acceptances or Drafts having an aggregate
Face Amount equal to and
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with a term to maturity the same as the Bankers' Acceptances or Drafts
to be acquired by the Lender or Facility Participant on the Drawing Date.
"DOCUMENTARY CREDIT" means a commercial letter of credit or a standby
letter of credit (each of which is a "TYPE" of Documentary Credit)
issued or to be issued by the Lender for the account of the Borrower
pursuant to Article 5.
"DRAFT" means, at any time, a xxxx of exchange, within the meaning of
the BILLS OF EXCHANGE ACT (Canada), drawn by the Borrower on the Lender
or any other Person and bearing such distinguishing letters and numbers
as the Lender or the Person may determine, but which at such time has
not been accepted by the Lender or such other Person.
"DRAWING" means (i) the creation and purchase of Bankers' Acceptances by
the Lender or by any other Person pursuant to Article 4, or (ii) the
purchase of completed Drafts by the Lender or by any other Person
pursuant to Article 4.
"DRAWING DATE" means any Business Day fixed for a Drawing pursuant to
Section 4.3.
"DRAWING FEE" means, with respect to each Draft drawn by the Borrower
and purchased by any Person on any Drawing Date, an amount equal to the
result obtained when (i) the product of (w) the Applicable Margin and
(x) the aggregate Face Amount of the Draft is multiplied by (ii) a
fraction (y) the numerator of which is the number of days in the term to
maturity of the Draft and (z) the denominator of which is the actual
number of days in such year, being either 365 or 366.
"DRAWING NOTICE" has the meaning specified in Section 4.3(1).
"DRAWING PRICE" means, in respect of Bankers' Acceptances or Drafts to
be purchased by the Lender or any other Person, the difference between
(i) the result (rounded to the nearest whole cent, with one-half of one
cent being rounded up) obtained by dividing the aggregate Face Amount of
the Bankers' Acceptances or Drafts by the sum of one plus the product of
(x) the Discount Rate multiplied by (y) a fraction the numerator of
which is the number of days in the term of maturity of the Bankers'
Acceptances or Drafts, as the case may be, and the denominator of which
is the actual number of days in such year, being either 365 or 366, and
(ii) the applicable aggregate Drawing Fee.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" has the meaning
ascribed to such term in the U.S. Credit Agreement and includes similar
Requirements of Law of Canada and any province or territory thereof.
"EQUIVALENT CDN. $ AMOUNT" means, on any day with respect to any amount
of U.S. Dollars, the equivalent amount of Canadian Dollars determined by
using the quoted Bank of Canada noon rate at which the Lender's
principal office in Toronto, Ontario
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offers to provide Canadian Dollars in exchange for U.S. Dollars in
Toronto at noon (Toronto time) on the day.
"EQUIVALENT U.S. $ AMOUNT" means, on any day with respect to any amount
of Canadian Dollars, the equivalent amount of U.S. Dollars determined by
using the quoted Bank of Canada noon rate at which the Lender's
principal office in Toronto, Ontario offers to provide U.S. Dollars in
exchange for Canadian Dollars in Toronto at noon (Toronto time) on the
day.
"EXCHANGE RATE NOTICE" has the meaning specified in Section 5.5(2).
"FACE AMOUNT" means (i) in respect of a BA Instrument, the amount
payable to the holder on its maturity, and (ii) in respect of a
Documentary Credit, the maximum amount which the issuing Person is
contingently liable to pay to the Beneficiary.
"FACILITY PARTICIPANT" means a Participant or Assignee which has not
executed and delivered the assignment and assumption documents referred
to in Section 10.8(5).
"FEES" means the fees payable by the Borrower under this Agreement.
"FISCAL QUARTER" or "fiscal quarter" shall mean the fiscal quarter of
Borrower which shall be each 13 (or 14) week period ending in August,
November, February and May or such other period as Borrower or Parent
may designate and the Lender shall approve.
"FISCAL YEAR" or "fiscal year" shall mean the fiscal year of Borrower
which shall be each 52 (or 53) week period ending on the last Saturday
of August of each calendar year or such other period as Borrower or
Parent shall designate and the Lender may approve in writing.
"INDEMNIFIED MATTERS" has the meaning specified in Section 10.6.
"INDEMNITEES" has the meaning specified in Section 10.6.
"ISSUE" means an issue of a Documentary Credit by the Lender pursuant to
Article 5.
"ISSUE DATE" has the meaning specified in Section 5.2(1).
"ISSUE NOTICE" has the meaning specified in Section 5.2(1).
"LENDER" means First Chicago NBD Bank, Canada, any Person who may become
a Lender pursuant to Section 10.8 and their respective successors and
assigns, and, in the singular, any one of them.
"MATERIAL SUBSIDIARY" means any Subsidiary of Borrower that has assets
or annual sales equal to or greater than U.S.$ 1,000,000.
"MATURITY DATE" means April 15, 2001.
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"MAXIMUM REVOLVING LOAN AMOUNT" means, at any particular time, the
lesser of (i) the Commitment at such time, and (ii) the amount by which
the lesser of U.S. $25,000,000 and the Borrowing Base exceeds the
Obligations.
"MAXIMUM DOCUMENTARY CREDITS AMOUNT" means, at any particular time, the
Equivalent Cdn. $ Amount of U.S. $1,000,000.
"ORIGINAL CURRENCY" has the meaning specified in Section 10.10(1).
"OTHER CURRENCY" has the meaning specified in Section 10.10(1).
"OTHER TAXES" has the meaning specified in Section 10.7(2).
"PARENT" means Xxxxxxxxx Xxxxx Corporation, an Illinois corporation, and
its successors and assigns, including a debtor-in-possession on behalf
of the Parent.
"PARENT GUARANTEE" means the guarantee dated as of the date hereof by
the Parent in favour of the Lender guaranteeing the obligations of the
Borrower hereunder as amended, restated or otherwise modified from time
to time.
"PARTICIPANT" has the meaning specified in Section 10.8(3).
"PARTICIPATION AGREEMENT" means the letter agreement dated the date
hereof among the Lender, The First National Bank of Chicago and Fleet
Business Credit Corporation.
"PAYMENT DATE" means the last Business Day of each fiscal quarter.
"SECTION 427 SECURITY" means the Security granted by the Borrower to the
Lender pursuant to Section 427 of the BANK ACT (Canada) as amended,
restated or otherwise modified from time to time.
"SECURITY" means, at any time, the Liens in favour of the Lender in the
assets and properties of the Parent, the Borrower or the Material
Subsidiaries securing their obligations under the Credit Documents.
"SECURITY AGREEMENTS" means the security agreements to be executed and
delivered by the Parent, the Material Subsidiaries and the Borrower as
amended, restated or otherwise modified from time to time.
"SECURITY DOCUMENTS" means (i) the Security Agreements, (ii) the
Assignment of Book Debts, and (iii) the Section 427 Security.
"SUBSIDIARY" has the meaning specified in the CBCA on the date of this
Agreement.
"SUBSIDIARIES" means the subsidiaries of the Parent or the Borrower, as
the case may be, including, without limitation, those identified as such
in Schedule 7.1(b).
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"SUBSIDIARY GUARANTEE" means a guarantee of the obligations of the
Borrower to be made in favour of the Lender by the Material Subsidiaries
in a form satisfactory to the Lender and as amended, restated or
otherwise modified from time to time.
"TAXES" has the meaning specified in Section 10.7.
"TOTAL FACE AMOUNT" means, at any particular time, the aggregate Face
Amount of all Documentary Credits which have been issued and are
outstanding.
"UNMATURED DEFAULT" means an event which, with the giving of notice or
passage of time, or both, would constitute a Default.
"U.S. DOLLARS" and "U.S. $" means lawful money of the United States of
America.
"U.S. AGENT" means The First National Bank of Chicago as agent for the
U. S. Lenders.
"U.S. LENDERS" means the financial institutions from time to time which
are lenders under the U.S. Credit Agreement.
"U.S. CREDIT AGREEMENT" means the amended and restated credit agreement
dated as of July 2, 1997 among the Parent, the financial institutions
from time to time which are lenders thereunder and The First National
Bank of Chicago, as agent, as such document has been and may be amended
from time to time.
Unless otherwise defined herein, each capitalized term used herein shall
have the meanings ascribed to such terms in the U.S. Credit Agreement
and include such other definitions in the U.S. Credit Agreement
necessary to give meaning to such terms.
SECTION 1.2 GENDER AND NUMBER.
Any reference in the Credit Documents to gender includes all genders,
and words importing the singular number also include the plural and vice
versa.
SECTION 1.3 INTERPRETATION NOT AFFECTED BY HEADINGS, ETC.
The provisions of a Table of Contents, the division of this Agreement
into Articles and Sections and the insertion of headings are for convenience
of reference only and shall not affect the interpretation of this Agreement.
SECTION 1.4 CURRENCY.
All references in the Credit Documents to dollars, unless otherwise
specifically indicated, are expressed in Canadian currency.
SECTION 1.5 CERTAIN PHRASES, ETC.
In any Credit Document (i) (y) the words "INCLUDING" and "INCLUDES" mean
"INCLUDING (OR INCLUDES) WITHOUT LIMITATION" and (z) the phrase "THE
AGGREGATE OF", "THE TOTAL OF", "THE SUM OF", or a phrase of similar meaning
means "THE AGGREGATE (OR TOTAL OR
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SUM), WITHOUT DUPLICATION, OF", (ii) except where specifically stated
otherwise, whether any act, occurrence, conduct, event or state of affairs is
"MATERIAL", "ADVERSE" or "MATERIALLY ADVERSE" or any grammatical variation of
such words, shall be determined by the Lender acting reasonably, and (iii) in
the computation of periods of time from a specified date to a later specified
date, unless otherwise expressly stated, the word "FROM" means "FROM AND
INCLUDING" and the words "TO" and "UNTIL" each mean "TO BUT EXCLUDING".
SECTION 1.6 ACCOUNTING TERMS.
All accounting terms not specifically defined in this Agreement shall be
interpreted in accordance with Agreement Accounting Principles.
SECTION 1.7 INCORPORATION OF SCHEDULES.
The schedules attached to this Agreement shall, for all purposes of this
Agreement, form an integral part of it.
SECTION 1.8 CONFLICT.
The provisions of this Agreement prevail in the event of any conflict or
inconsistency between its provisions and the provisions of any of the other
Credit Documents.
ARTICLE 2
CREDIT FACILITY
SECTION 2.1 AVAILABILITY.
The Lender agrees, on the terms and conditions of this Agreement, to
make Accommodations to the Borrower in accordance with the Commitment.
Accommodations under the Credit Facility shall be made available as (i)
Advances, pursuant to Article 3, (ii) Bankers' Acceptances, pursuant to
Article 4, and (iii) Documentary Credits to a maximum Face Amount specified
in Section 5.1(2), pursuant to Article 5.
SECTION 2.2 COMMITMENTS AND FACILITY LIMITS.
(1) The Accommodations Outstanding to the Lender under the Credit Facility
shall not at any time exceed the Maximum Revolving Loan Amount.
(2) The Credit Facility shall revolve and no payment under the Credit
Facility shall reduce the Commitment.
(3) A conversion from one Type of Accommodation to another Type of
Accommodation shall not constitute a repayment or prepayment.
SECTION 2.3 USE OF PROCEEDS.
The Borrower shall use the proceeds of Accommodations under the Credit
Facility for its working capital and other general corporate purposes and the
issuances of Documentary Credits.
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SECTION 2.4 MANDATORY REPAYMENTS.
(1) The Borrower shall repay, subject to Section 9.1, the Accomodations
Outstanding under the Credit Facility on the Maturity Date.
(2) On the Maturity Date, the Borrower shall provide collateral in the form
of cash or Cash Equivalents to the Lender in an amount equal to the
aggregate issued and outstanding Face Amount of all Documentary Credits.
SECTION 2.5 OPTIONAL PREPAYMENTS; MANDATORY PREPAYMENTS.
(1) On prior notice to the Lender, the Borrower may from time to time repay,
without penalty or premium, (i) all or any part of the outstanding
Advances, and (ii) the amount of any Drawing or Issue only on the
maturity date for the relevant BA Instrument or Documentary Credit;
PROVIDED that any such repayment in part shall equal Cdn. $250,000 or an
integral multiple of Cdn. $100,000 in excess thereof.
(2) If, at any time and for any reason, the Accommodations Outstanding under
the Credit Facility exceed the Maximum Revolving Loan Amount (based on
the most recently delivered Borrowing Base Certificate and the
Equivalent U.S. $ Amount of the Accommodations Outstanding on that day)
and the Parent has not repaid amounts under the U.S. Credit Agreement to
eliminate such excess, the Borrower shall on that day (i) prepay
Borrowings, or (ii) pay such amount to the Lender and irrevocably
authorize and direct the Lender to apply such payment as a repayment of
the Borrower's reimbursement obligation in respect of any Drawings or
Issues on the next maturity date; such that the Accommodations
Outstanding under the Credit Facility, after giving effect to the
payment, do not exceed the Maximum Revolving Loan Amount.
SECTION 2.6 REDUCTION OF THE COMMITMENT.
The Borrower may permanently reduce the Commitment in whole or in part,
upon two Business Days' notice to the Lender by a notice stating the proposed
date and aggregate amount of the reduction; PROVIDED, HOWEVER, that the
Commitment may not be reduced below the Accomodations Outstanding. All
accrued commitment fees relating to the terminated portion of the Commitment
shall be payable on the effective date of such termination. Each partial
reduction shall be in an aggregate principal amount of U.S. $1,000,000 or
integral multiples of U.S. $500,000.
SECTION 2.7 PAYMENTS UNDER THIS AGREEMENT.
(1) Unless otherwise expressly provided in this Agreement, the Borrower
shall (i) make any payment required to be made by it to the Lender by
depositing the amount of the payment to the Borrower's Account not later
than noon (Toronto time) on the date the payment is due, and (ii)
provide to the Lender one Business Days' notice of such repayment which
shall be irrevocable and binding on the Borrower and shall specify (x)
the date of repayment, and (y) the Type and amount of Accommodation to
be repaid.
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(2) Unless otherwise expressly provided in this Agreement, the Lender shall
make Accommodations and other payments to the Borrower under this
Agreement by crediting the Borrower's Account (or causing the Borrower's
Account to be credited) with the amount of the payment not later than
1:00 p.m. (Toronto time) on the date the payment is to be made.
(3) The Borrower hereby authorizes the Lender, if and to the extent payment
owed to the Lender by the Borrower is not made when due, to charge from
time to time any due amount against any or all of the Borrower's
accounts with the Lender.
SECTION 2.8 APPLICATION OF PAYMENTS AND PREPAYMENTS.
All amounts received by the Lender from or on behalf of the Borrower and
not previously applied pursuant to this Agreement shall be applied by the
Lender as follows (i) first, in reduction of the Borrower's obligation to pay
any unpaid interest and any Fees which are due and owing, (ii) second, in
reduction of the Borrower's obligation to pay any claims or losses referred
to in Section 10.6, (iii) third, in reduction of the Borrower's obligation to
pay any amounts due and owing on account of any unpaid principal amount of
Advances which is due and owing, (iv) fourth, in reduction of the Borrower's
obligation to pay any other unpaid Accommodations Outstanding which are due
and owing, (v) fifth, in reduction of any other obligation of the Borrower
under this Agreement, and (vi) sixth, to the Borrower or such other Persons
as may lawfully be entitled to or directed to receive the remainder.
SECTION 2.9 COMPUTATIONS OF INTEREST AND FEES.
(1) Subject to Section 2.9(2), all computations of interest shall be made by
the Lender taking into account the actual number of days occurring in
the period for which such interest is payable and on the basis of a year
of 365 or 366 days, as the case may be.
(2) All computations of Fees and interest thereon shall be made by the
Lender on the basis of a year of 360 days.
(3) For purposes of the INTEREST ACT (Canada), (i) whenever any interest or
Fee under this Agreement is calculated using a rate based on a year of
360 days or 365 days, such rate determined pursuant to such calculation,
when expressed as an annual rate, is equivalent to (x) the applicable
rate based on a year of 360 days or 365 days, as the case may be, (y)
multiplied by the actual number of days in the calendar year in which
the period for which such interest or fee is payable (or compounded)
ends, and (z) divided by 360 or 365 as the case may be, (ii) the
principle of deemed reinvestment of interest does not apply to any
interest calculation under this Agreement, and (iii) the rates of
interest stipulated in this Agreement are intended to be nominal rates
and not effective rates or yields.
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ARTICLE 3
ADVANCES
SECTION 3.1 THE ADVANCES.
The Lender agrees, on the terms and conditions of this Agreement, to
make Advances under the Credit Facility to the Borrower from time to time on
any Business Day prior to the Maturity Date.
SECTION 3.2 PROCEDURE FOR BORROWING.
(1) Borrowings may be made without notice from the Borrower by overdraft in
the Borrower's Account and shall be made available by the Lender by
crediting the Borrower's Account the integral multiple of Cdn. $10,000
nearest the amount of such overdraft.
(2) If from time to time the position of the Borrower's Account is a credit
in favour of the Borrower, the Lender will apply the amount of such
credit or any part thereof, rounded to the nearest Cdn.$10,000, as a
repayment of the Credit Facility, and the Lender will debit the
Borrower's Account with the amount of such repayment.
SECTION 3.3 CONVERSIONS AND ELECTIONS REGARDING ADVANCES.
(1) Each Advance shall bear interest at the Canadian Prime Rate until (i)
the date on which the Advance is repaid in full, or (ii) it is converted
to another Type of Accommodation pursuant to Section 3.3(2).
(2) The Borrower may elect to convert an Advance to another Type of
Accommodation upon two Business Days notice, as of any Business Day and
in the principal amount of such Advance.
SECTION 3.4 INTEREST ON ADVANCES.
The Borrower shall pay interest on the unpaid principal amount of each
Advance from the date of the Advance until the principal amount of the
Advance is repaid in full, at the Canadian Prime Rate in effect from time to
time calculated daily and payable in arrears (i) on the Payment Date, and
(ii) when such Advance becomes due and payable in full.
ARTICLE 4
BANKERS' ACCEPTANCES
SECTION 4.1 ACCEPTANCES AND DRAFTS.
(1) The Lender agrees, on the terms and conditions of this Agreement and
from time to time on any Business Day prior to the Maturity Date to
create acceptances ("BANKERS' ACCEPTANCES") by accepting Drafts and to
purchase such Bankers' Acceptances in accordance with Section 4.3(2). If
the Lender has participated or assigned all or any part of its interest
in the Credit Facility to a Facility Participant which is willing and
able to accept Drafts, the Lender shall arrange for the creation of
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Bankers' Acceptances by such Facility Participant and for their purchase
by such Facility Participant, to the extent of the participation or
assignment, in accordance with Section 4.3(2). If the Lender has
participated or assigned all or any part of its interest in the Credit
Facility to a Facility Participant which is unwilling or unable to
accept Drafts, the Lender shall arrange for the purchase by the Facility
Participant of completed Drafts (which have not and will not be accepted
by the Lender), to the extent of the participation or assignment, in
accordance with Section 4.3(2).
(2) Each Drawing shall be in a minimum Face Amount of Cdn.$1,000,000 and in
integral multiples of Cdn.$100,000, and shall consist of the creation
and purchase of Bankers' Acceptances or the purchase of Drafts on the
same day, in each case for the Drawing Price, effected or arranged by
the Lender in accordance with Section 4.3 and the Commitment.
SECTION 4.2 FORM OF DRAFTS.
(1) Each Draft presented by the Borrower shall (i) be in a minimum amount of
Cdn. $100,000 and in an integral multiple of Cdn. $100,000, (ii) be
dated the date of the Drawing, and (iii) subject to Section 4.2(2),
mature and be payable by the Borrower (in common with all other Drafts
presented in connection with such Drawing) on a Business Day which
occurs approximately 30, 60, 90 or 180 days at the election of the
Borrower after the Drawing Date and on or prior to the Maturity Date and
which would not, in the opinion of the Lender, conflict with the
repayment schedule set out in Section 2.4.
(2) Each Draft with a maturity date which is approximately 180 days after
the Drawing Date shall be re-paid, re-advanced and repurchased for the
Drawing Price (but without an additional Drawing Fee) on the Business
Day which is approximately 91 days from the Drawing Date.
SECTION 4.3 PROCEDURE FOR DRAWING.
(1) Each Drawing shall be made on notice (a "DRAWING NOTICE") given by the
Borrower to the Lender not later than 10:00 a.m. (Toronto time) on two
Business Days notice. Each Drawing Notice shall be in substantially the
form of Schedule 4.3(1), shall be irrevocable and binding on the
Borrower and shall specify (i) the Drawing Date, (ii) the aggregate Face
Amount of Drafts to be accepted and purchased (or purchased, as the case
may be), and (iii) the contract maturity date for the Drafts.
(2) Not later than 2:00 p.m. (Toronto time) on an applicable Drawing Date,
the Lender shall, subject to Section 4.2(2) (i) complete one or more
Drafts in accordance with the Drawing Notice, accept the Drafts and
purchase the Bankers' Acceptances so created for the Drawing Price, (ii)
complete one or more Drafts in accordance with the Drawing Notice and
purchase them for the Drawing Price, (iii) arrange for a Facility
Participant to complete one or more Drafts in accordance with the
Drawing Notice, to accept the Drafts and to purchase the Bankers'
Acceptances so created for the Drawing Price, or (iv) arrange for a
Facility Participant to complete one or more Drafts in accordance with
the Drawing Notice and arrange for the Facility Participant
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to purchase them for the Drawing Price. In each case, upon receipt of
the Drawing Price and upon fulfilment of the applicable conditions set
forth in Article 6, the Lender shall make funds available to the
Borrower in accordance with Article 2.
(3) The Borrower shall, at the request of the Lender or any Facility
Participant, issue one or more non-interest bearing promissory notes
(each a "BA EQUIVALENT NOTE") payable on the date of maturity of the
unaccepted Draft referred to below, in such form as the Lender or such
Facility Participant reasonably may specify and in a principal amount
equal to the Face Amount of, and in exchange for, any unaccepted Drafts
which the Lender or such Facility Participant has purchased or has
arranged to have purchased in accordance with Section 4.3(2).
(4) Bankers' Acceptances purchased by the Lender or Facility Participant may
be held by it for its own account until the contract maturity date or
sold by it at any time prior to that date in any relevant Canadian
market in such Person's sole discretion.
SECTION 4.4 PRESIGNED POWER OF ATTORNEY.
To enable the Lender and Facility Participants to create Bankers'
Acceptances or complete Drafts in the manner specified in this Article 4, the
Borrower shall provide the Lender with a power of attorney authorizing the
Lender to create Bankers' Acceptances or complete drafts in the name of the
Borrower.
SECTION 4.5 PAYMENT, CONVERSION OR RENEWAL OF BA INSTRUMENTS.
(1) Upon the maturity of a BA Instrument, the Borrower may (i) elect to
issue a replacement BA Instrument by giving a Drawing Notice in
accordance with Section 4.3(1), (ii) elect to have all or a portion of
the Face Amount of the BA Instrument converted to an Advance by giving a
Borrowing Notice in accordance with Section 3.2, or (iii) pay, on or
before 10:00 a.m. (Toronto time) on the maturity date for the BA
Instrument, an amount in Canadian Dollars equal to the Face Amount of
the BA Instrument (notwithstanding that the Lender may be the holder of
it at maturity). Any such payment shall satisfy the Borrower's
obligations under the BA Instrument to which it relates and the Lender
or Facility Participant shall then be solely responsible for the payment
of the BA Instrument.
(2) If the Borrower fails to pay any BA Instrument when due or issue a
replacement in the Face Amount of such BA Instrument pursuant to Section
4.5(1), the unpaid amount due and payable shall be converted to an
Advance made by the Lender under the Credit Facility and shall bear
interest calculated and payable as provided in Article 3. This
conversion shall occur as of the due date and without any necessity for
the Borrower to give a Borrowing Notice.
SECTION 4.6 CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE.
(1) If the Lender determines in good faith and notifies the Borrower that,
by reason of circumstances affecting the money market, there is no
market for Bankers' Acceptances then:
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(a) The right of the Borrower to request a Drawing shall be suspended
until the Lender determines that the circumstances causing a
suspension no longer exist and so notifies the Borrower; and
(b) Any Drawing Notice which is outstanding shall be deemed to be a
Borrowing Notice requesting a Borrowing comprised of Advances.
(2) The Lender shall promptly notify the Borrower of the suspension of the
Borrower's right to request a Drawing and of the termination of any
suspension.
ARTICLE 5
DOCUMENTARY CREDITS
SECTION 5.1 DOCUMENTARY CREDITS.
(1) The Lender agrees, on the terms and conditions of this Agreement, to
issue Documentary Credits, under the Credit Facility, from time to time
on any Business Day prior to the Maturity Date.
(2) The maximum Total Face Amount shall be the Maximum Documentary Credits
Amount.
SECTION 5.2 PROCEDURE FOR ISSUE.
(1) Each Issue under the Credit Facility shall be made on notice (an "ISSUE
NOTICE") given by the Borrower to the Lender not later than 11:00 a.m.
(Toronto time) on three Business Days notice. The Issue Notice shall be
in substantially the form of Schedule 5.2(1), shall be irrevocable and
binding on the Borrower and shall specify (i) the requested date of
Issue (the "ISSUE DATE"), (ii) the Type of Documentary Credit, (iii) the
Face Amount of each Documentary Credit, (iv) the expiration date, and
(v) the name and address of the Beneficiary. The Borrower shall not
request a maturity date for a Documentary Credit which would be after
the Maturity Date.
(2) Not later than 11:00 a.m. (Toronto time) on the Issue Date, the Lender
shall issue a Documentary Credit completed in accordance with the Issue
Notice in the appropriate form. Upon fulfilment of the conditions set
forth in Article 6, the Lender shall deliver the Documentary Credits to
or to the order of the Borrower.
(3) No Documentary Credit shall require that payment against a conforming
draft be made on the same Business Day upon which the draft was
presented, unless such presentation is made before 11:00 a.m. (Toronto
time) on such Business Day.
(4) Prior to the Issue Date, the Borrower shall provide a precise
description of the documents and the verbatim text of any certificates
to be presented by the Beneficiary which, if presented by the
Beneficiary, would require the Lender to make payment under the
Documentary Credit. The Lender may require changes in any such document
or certificate.
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SECTION 5.3 FORM OF DOCUMENTARY CREDITS.
Each Documentary Credit (i) shall be dated the Issue Date, (ii) shall
have an expiration date on a Business Day which occurs no more than 365 days
after the Issue Date, and (iii) shall comply with the definition of
Documentary Credit and be a Type of Documentary Credit issued by the Lender
for the proposed purpose of the issue
SECTION 5.4 USE OF DOCUMENTARY CREDITS.
The Borrower shall use Documentary Credits for the sole purpose of
supporting or effecting performance, payment, deposit or surety obligations
of the Borrower.
SECTION 5.5 REIMBURSEMENTS OF AMOUNTS DRAWN; EXCHANGE RATE FLUCTUATIONS.
(1) At or before 10:00 a.m. (Toronto time) on the date specified by a
Beneficiary as a drawing date under a Documentary Credit, the Borrower
shall pay to the Lender an amount in same day funds equal to the amount
to be drawn by the Beneficiary in the currency in which the Documentary
Credit is payable. The Lender shall provide notice to the Borrower of
the payment by the Lender under any Documentary Credit.
(2) If, at any time and for any reason, the Total Face Amount exceeds the
Maximum Documentary Credits Amount (based on the Equivalent U.S. $
Amount of the Total Face Amount), the Lender shall provide notice (the
"EXCHANGE RATE NOTICE") to the Borrower specifying the amount of such
excess. At or before 10:00 a.m. (Toronto time) on the date which is two
Business Days after the receipt of the Exchange Rate Notice, the
Borrower shall provide collateral in the form of cash or Cash
Equivalents to the Lender in an amount equal to the amount of the excess
specified in the Exchange Rate Notice.
(3) If the Borrower fails to pay to the Lender the amount required pursuant
to Section 5.5(1) or fails to provide the collateral required pursuant
to Section 5.5(2), such amount shall be converted automatically as of
such date, and without the necessity for the Borrower to give any
Borrowing Notice pursuant to Section 3.2, to an Advance made by the
Lender under the Credit Facility and shall bear interest calculated and
payable as provided in Article 3.
SECTION 5.6 RISK OF DOCUMENTARY CREDITS.
(1) In determining whether to pay under a Documentary Credit, the Lender
shall be responsible only to determine that the documents and
certificates required to be delivered under such Documentary Credit have
been delivered and that they comply on their face with the requirements
of such Documentary Credit.
(2) The reimbursement obligation of the Borrower under any Documentary
Credit shall be unconditional and irrevocable and shall be paid strictly
in accordance with the terms of this Agreement under all circumstances,
including (i) any lack of validity or enforceability of a Documentary
Credit, (ii) the existence of any claim, set-off, defence or other right
which the Borrower may have at any time against a Beneficiary or any
transferee of a Documentary Credit, the Lender or any other Person,
whether in
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connection with the Credit Documents, the transactions contemplated
therein or any other transaction (including any underlying transaction
between the Borrower and the Beneficiary), (iii) any draft, demand,
certificate or any other document presented with a Documentary Credit
proving to be forged, fraudulent or invalid or any statement in it being
untrue or inaccurate, (iv) the existence of any act or omission or any
misuse of, a Documentary Credit or misapplication of proceeds by the
Beneficiary, including any fraud in any draft, demand, certificate or
any other document presented with a Documentary Credit, or (v) the
existence of an Unmatured Default or Default.
(3) The Lender shall not be responsible (in absence of bad faith, Gross
Negligence or willful misconduct in connection therewith, as determined
by the final judgment of a court of competent jurisdiction) for (i) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Documentary Credit or the rights or
benefits under it or proceeds of it, in whole or in part, which may
prove to be invalid or ineffective for any reason, (ii) errors,
omissions, interruptions or delays in transmission or delivery of any
messages by mail, telecopy or otherwise, (iii) errors in interpretation
of technical terms, (iv) any loss or delay in the transmission of any
document required in order to make a drawing, and (v) any consequences
arising from causes beyond the control of the Lender, including the acts
or omissions, whether rightful or wrongful, of any Governmental
Authority. None of the above shall affect, impair, or prevent the
vesting of any of the Lender's rights or powers under this Agreement.
Any action taken or omitted by the Lender under or in connection with
any Documentary Credit or the related certificates, if taken or omitted
in good faith, shall not put the Lender under any resulting liability to
the Borrower provided that the Lender acts in accordance with the
standards of reasonable care specified in the Uniform Customs and
Practice for Documentary Credits (1993 Revision), ICC Publication 500
(or any replacement publication).
SECTION 5.7 FEES.
(1) The Borrower shall pay to the Lender, a Fee in respect of each
Documentary Credit issued thereby equal to the Applicable Margin per
annum of the Face Amount of such Documentary Credit, for the period
during which the Documentary Credit is outstanding. Such Fee shall be
payable quarterly in arrears on each Payment Date.
(2) The Borrower shall pay to the Lender upon the issuance, amendment or
transfer of each Documentary Credit issued by the Lender and each
drawing made thereunder, the Lender's standard and prevailing
documentary and administrative charges for issuing, amending,
transferring or drawing under, as the case may be, Documentary Credits
of similar amount, term and risk.
SECTION 5.8 REPAYMENTS.
(1) If the Borrower shall be required to repay the Accommodations pursuant
to Article 2 or Article 9, then the Borrower shall pay to the Lender, to
the extent required in those Articles, an amount equal to the Lender's
contingent liability in respect of (i) any outstanding Documentary
Credit, and (ii) any Documentary Credit which is the subject matter of
any order, judgment, injunction or other such determination (a "JUDICIAL
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ORDER") restricting payment under and in accordance with such
Documentary Credit or extending the Lender's liability under such
Documentary Credit beyond its stated expiration date.
(2) The Lender shall, with respect to any Documentary Credit, upon the later
of:
(a) The date on which any final and non-appealable order, judgment or
other such determination has been rendered or issued either
terminating the applicable Judicial Order or permanently enjoining
the Lender from paying under such Documentary Credit; and
(b) The earlier of (i) the date on which either (x) the original
counterpart of the Documentary Credit is returned to the Lender
for cancellation, or (y) the Lender is released by the Beneficiary
from any further obligations, and (ii) the expiry (to the extent
permitted by any applicable law) of the Documentary Credit,
pay to the Borrower an amount equal to the difference between the amount
paid to or for the benefit of the Lender pursuant to Section 5.8(1) and
the amounts paid by the Lender under the Documentary Credit.
ARTICLE 6
CONDITIONS OF LENDING
SECTION 6.1 CONDITIONS PRECEDENT TO THE INITIAL ACCOMMODATION.
The obligation of the Lender to make its initial Accommodation under
the Credit Facility is subject to fulfilment of the following conditions
precedent at the time the initial Accommodation is made available:
(a) No Unmatured Default has occurred or is continuing or would arise
immediately after giving effect to or as a result of the
Accommodation;
(b) The representations and warranties of the Borrower contained in
Section 7.1 are true and correct in all material respects on the
date of the Accommodation as if such representations and
warranties were made on that date;
(c) The Lender shall have received, in form, substance and dated as of
a date satisfactory to the Lender:
(i) A certified copy of (i) the charter documents and
by-laws of the Borrower, (ii) the resolutions of the
sole shareholder of the Borrower approving the
borrowing and other matters contemplated by this
Agreement and approving the entering into of all
other Credit Documents to which it is a party and the
completion of all transactions contemplated in the
Credit Documents; and (iii) all other instruments
evidencing necessary corporate action of the Borrower
with respect to
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such matters including as required by any unanimous
shareholder agreement;
(ii) A certified copy of (i) the charter documents and
by-laws of the Parent, (ii) the resolutions of the
board of directors (or any duly authorized committee)
of the Parent approving the guarantee of the
Borrower's obligations contemplated by this Agreement
and approving the entering into of all other Credit
Documents to which it is a party and the completion of
all transactions contemplated in the Credit Documents;
and (iii) all other instruments evidencing necessary
corporate action of the Parent with respect to such
matters;
(iii) A certificate of the Secretary of the Borrower
certifying the names and true signatures of its
officers authorized to sign this Agreement and the
other Credit Documents;
(iv) A certificate of compliance with respect to the
Borrower issued pursuant to the CBCA;
(v) The Parent Guarantee and a Security Agreement from the
Parent;
(vi) An Assignment of Book Debts, a Security Agreement and
the Section 427 Security of the Borrower;
(vii) Evidence of registration of the Liens created by the
Security Documents in the Provinces of Newfoundland,
Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba,
Saskatchewan, Alberta and British Columbia and such
other jurisdictions as the Lender deems necessary or
advisable;
(viii) An opinion of counsel to the Borrower and the Parent
in form and substance satisfactory to the Lender
including that the transactions contemplated hereby do
not violate the terms of the Senior Note Indenture;
(ix) An executed copy of Amendment No. 3;
(x) A pro forma consolidated balance sheet of the Parent;
(xi) The necessary documentation for the Borrower to open a
Canadian Dollar account with the Lender;
(xii) The power of attorney contemplated by Section 4.4;
(xiii) An executed copy of the Participation Agreement; and
(xiv) Such other certificates and documentation as the
Lender may reasonably request;
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(d) The Accommodation will not violate any applicable law, rule,
regulation, judgment, order or decree; and
(e) Nothing shall have occurred (nor shall the Lender have become
aware of any facts not previously known), including any change or
any condition, event or development including a prospective change
which the Lender shall determine is reasonably likely to have a
Material Adverse Effect.
SECTION 6.2 CONDITIONS PRECEDENT TO ACCOMMODATIONS AND CONVERSIONS.
(1) The obligation of the Lender to make Accommodations or otherwise give
effect to any Accommodation Notice is subject to fulfilment of the
following conditions at the time of any Accommodation Notice or
Accommodation, as the case may be:
(a) No Unmatured Default or Default has occurred or is continuing or
would arise immediately after giving effect to or as a result of
the Accommodation or Accommodation Notice;
(b) The Accommodation will not violate any applicable (other than
those applicable solely as a result of the identity of the Lender)
law, rule, regulation, judgment, order or decree; and
(c) The representations and warranties of the Borrower contained in
Section 7.1 are true and correct in all material respects on the
date of the Accommodation or Accommodation Notice as if they were
made on that date.
(2) Each of the giving of any Accommodation Notice by the Borrower and the
acceptance by the Borrower of any Accommodation shall be deemed to
constitute a representation and warranty by the Borrower that, on the
date of such Accommodation Notice or Accommodation, as the case may be,
and after giving effect thereto and to the application of any proceeds
therefrom, the statements set forth in Section 6.2(1) are true and
correct.
SECTION 6.3 NO WAIVER.
The making of an Accommodation or otherwise giving effect to any
Accommodation Notice, without the fulfilment of one or more conditions set
forth in Section 6.1 or Section 6.2, shall not constitute a waiver of any
condition and the Lender reserves the right to require fulfilment of such
condition in connection with any subsequent Accommodation Notice or
Accommodation.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1 REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lender, acknowledging and
confirming that the Lender is relying on such representations and warranties
without independent inquiry in entering into this Agreement and providing
Accommodations that:
(a) CANADIAN PENSION PLANS. The only Canadian Pension Plans of the
Borrower are one or more defined contribution pension plans. (i)
Each Canadian Pension Plan is in compliance in all material
respects with all applicable pension benefits and tax laws, (ii)
all contributions (including employee contributions made by
authorized payroll deductions) required to be made to the
appropriate funding agency in accordance with all applicable laws
and the terms of each Canadian Pension Plan has and will be made
in accordance with applicable laws and the terms of each Canadian
Pension Plan, and (iii) no event has occurred or will occur and no
condition exists or will exist with respect to any Canadian
Pension Plan that has resulted or could reasonably be expected to
result in any Canadian Pension Plan having its registration
revoked or refused for the purposes of any applicable pension
benefits or tax laws or being placed under the administration of
any relevant pension benefits regulatory authority or being
required to pay any taxes or penalties under any applicable
pension benefits or tax laws. With respect to any retirement or
other deferred compensation plan maintained, administered or
contributed to by or to which there may be an obligation to
contribute by the Borrower or any of its Subsidiaries in respect
of employees in Canada which is not a Canadian Pension Plan, all
required contributions have been made and there are no unfunded
liabilities in respect of such plans (either on a "GOING CONCERN"
or on a "WINDING UP" basis and determined in accordance with all
applicable laws and using assumptions and methods that are
appropriate in the circumstances and in accordance with generally
accepted actuarial principles and practices in Canada);
(b) SUBSIDIARIES. The Borrower has no Subsidiaries other than as
specified on Schedule 7.1(b);
(c) USE OF CREDIT FACILITY. The proceeds of the Credit Facility shall
be used by the Borrower solely for the purposes permitted in
Section 2.3; and
(d) U.S. CREDIT AGREEMENT. The representations and warranties
contained in Article V of the U.S. Credit Agreement made by the
Parent in respect of the Borrower and its Subsidiaries are true
and correct.
SECTION 7.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties in this Agreement and in any
certificates or documents delivered to the Lender shall not merge in or be
prejudiced by and shall survive any
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Accommodation and shall continue in full force and effect so long as any
amounts are owing by the Borrower to the Lender under this Agreement.
ARTICLE 8
COVENANTS OF THE BORROWER
SECTION 8.1 AFFIRMATIVE COVENANTS.
So long as any amount owing under this Agreement remains unpaid or the
Lender has any obligation under this Agreement, and unless consent is given
in accordance with Section 10.1, the Borrower shall and (except in the case
of the delivery of financial information, reports and notices) shall cause
each of its Subsidiaries to:
(a) U.S. CREDIT AGREEMENT REPORTING. Provide such information to the
Lender as is provided by the Parent to the U.S. Agent and/or the
U.S. Lenders pursuant to Section 6.1 of the U.S. Credit Agreement;
(b) U.S. CREDIT AGREEMENT COVENANTS. Comply with the covenants
contained in Section 6.2 of the U.S. Credit Agreement that the
Parent is required thereunder to cause the Borrower and/or each of
its Subsidiaries to comply with;
(c) ADDITIONAL SECURITY INTERESTS. If at any time the Lender so
requests, execute and deliver all such security agreements and
other documents and instruments as the Lender may reasonably
request to create in favour of, or for the benefit of, the Lender
secured guarantees by the Borrower's Subsidiaries of the
Borrower's obligations hereunder (provided that security interests
shall be granted only in the type of collateral in which security
interests are granted by the Borrower on the date hereof), and
further deliver such favourable opinions of counsel, and do such
other acts and things as the Lender may reasonably request in
connection with such guarantees and the creation and perfection of
such Liens;
(d) SUBSIDIARY SECURITY INTERESTS. If at any time a Subsidiary of the
Borrower is a Material Subsidiary, execute and deliver to the
Lender a Subsidiary Guarantee and such Security Agreement in
respect of such Subsidiary as the Lender may reasonably request
within 10 Business Days of the end of the month in which such
Subsidiary became a Material Subsidiary together with any
opinions, certificates and other documents as the Lender may
reasonably request (provided that security interests shall be
granted only in the type of collateral in which security interests
are granted by the Borrower on the date hereof); and
(e) NOTICES. Promptly give notice to the Lender of:
(i) The occurrence of any Unmatured Default or Default;
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(ii) Any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its
Subsidiaries, or (ii) litigation, investigation or
proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any
Governmental Authority, which in either case, if not
cured or if adversely determined, as the case may be,
could reasonably be expected to have a Material
Adverse Effect;
(iii) Any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved
is Cdn. $1,000,000 or the Equivalent U.S. $ Amount
thereof or more and not covered by insurance or in
which injunctive or similar relief is sought;
(iv) Any development or event which has had or could
reasonably be expected to have a Material Adverse
Effect, and
each notice pursuant to this Section 8.1(e)(i) shall be
accompanied by a statement of an Authorized Officer on behalf of
the Borrower setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with
respect thereto;
SECTION 8.2 NEGATIVE COVENANTS.
So long as any amount owing under this Agreement remains unpaid or the
Lender has any obligation under this Agreement, and unless consent is given
in accordance with Section 10.1, the Borrower shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, breach any of the
covenants contained in Section 6.3 of the U.S. Credit Agreement that the
Parent is required thereunder not to permit the Borrower and/or each of its
Subsidiaries to breach.
SECTION 8.3 FINANCIAL COVENANTS.
So long as any amount owing under this Agreement remains unpaid or the
Lender has any obligations under this Agreement, and unless consent is given
in accordance with Section 10.1, the Borrower shall (and shall cause the
Parent and their respective Subsidiaries to) comply with the covenants
contained in Section 6.4 of the U.S. Credit Agreement.
ARTICLE 9
EVENTS OF DEFAULT
SECTION 9.1 EVENTS OF DEFAULT.
If any of the following events (each, a "DEFAULT") shall occur and be
continuing:
(a) (i) The Borrower shall fail to pay any amount of the
Accommodations Outstanding, interest or Fees when due in
accordance with the terms hereof; or (ii) the Borrower or any of
the Borrower's Subsidiaries shall fail to pay any other amount
payable hereunder or under any of the Credit Documents, within 15
Business Days of the date of its receipt of request for payment;
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(b) Any representation or warranty made or deemed made by the Borrower
or any of its Subsidiaries herein or in any other Credit Document
or which is contained in any certificate, document or financial or
other statement furnished by it or any officer thereof at any time
under or pursuant to this Agreement or any such other Credit
Document shall be false or misleading in any material respect on
the date as of which made or deemed made;
(c) The Borrower shall default in the performance of or compliance
with any term contained in this Agreement (other than as covered
by Section 9.1(a) or Section 9.1(b)) or the Parent, the Borrower
or any of its Subsidiaries shall default in the performance of or
compliance with any term contained in any or the other Credit
Documents, and such default shall continue until the earlier of
(i) 15 days after the Lender notifies the Borrower that such a
default exists or (ii) 20 Business Days after the date on which
the Borrower knew, or should have known, that such a default
existed;
(d) At any time for any reason, other than the sole action or inaction
of the Lender, (i) any Credit Document as a whole that materially
affects the ability of the Lender to enforce the obligations of
the Borrower hereunder or enforce its rights against the
Collateral ceases to be in full force and effect, or the Borrower
or any of its Subsidiaries party thereto seeks to repudiate its
obligations thereunder, or the Borrower or any such Subsidiary
seeks to render such Liens, invalid and unperfected, or (ii) Liens
on Collateral with a fair market value in excess of U.S.$1,000,000
in favour of the Lender contemplated by the Credit Documents
shall, at any time, for any reason other than the sole action or
inaction of the Lender be invalidated or otherwise cease to be in
full force and effect, or such Liens shall not have the priority
contemplated by this Agreement or the Credit Documents;
(e) Any guarantor of the Borrower's obligations hereunder shall
terminate or revoke any of its obligations under the applicable
guarantee agreement; or
(f) A "Default" (as such term are defined in the U.S. Credit
Agreement) shall occur under the U.S. Credit Agreement;
then the obligation of the Lender to make further Accommodations shall
immediately terminate and the Lender may declare the Accommodations
Outstanding, all accrued interest and Fees and all other amounts
payable under this Agreement and the other Credit Documents to be
immediately due and payable, without presentment, demand, protest or
further notice of any kind, all of which are expressly waived by the
Borrower.
SECTION 9.2 REMEDIES UPON DEFAULT.
(1) Upon a declaration that the Accommodations Outstanding are immediately
due and payable pursuant to Section 9.1, the Lender may commence such
legal action or proceedings as the Lender, in its sole discretion, deems
expedient, including, the
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commencement of enforcement proceedings under the Credit Documents all
without any additional notice, presentation, demand, protest, notice of
dishonour, entering into of possession of any property or assets, or any
other action or notice, all of which are expressly waived by the
Borrower.
(2) The rights and remedies of the Lender under the Credit Documents are
cumulative and are in addition to and not in substitution for any other
rights or remedies. Nothing contained in the Credit Documents with
respect to the indebtedness or liability of the Borrower to the Lender,
nor any act or omission of the Lender with respect to the Credit
Documents or the Security shall in any way prejudice or affect the
rights, remedies and powers of the Lender under the Credit Documents or
the Security.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 AMENDMENT.
No amendment or waiver of any provision of this Agreement or any of the
other Credit Documents, nor consent to any departure by the Borrower or any
other Person from such provisions, is effective unless in writing and
approved by the Lender and, with respect to amendments, the Borrower. Any
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 10.2 WAIVER.
(1) No failure on the part of the Lender to exercise, and no delay in
exercising, any right under any of the Credit Documents shall operate as
a waiver of such right; nor shall any single or partial exercise of any
right under any of the Credit Documents preclude any other or further
exercise of such right or the exercise of any other right.
(2) Except as otherwise expressly provided in this Agreement, the covenants,
representations and warranties of the parties contained in this
Agreement shall not merge on and shall survive the initial Accommodation
and, notwithstanding such initial Accommodation or any investigation
made by or on behalf of any party, shall continue in full force and
effect. The closing of this transaction shall not prejudice any right of
one party against any other party in respect of anything done or omitted
under this Agreement or in respect of any right to damages or other
remedies.
SECTION 10.3 EVIDENCE OF DEBT AND ACCOMMODATION NOTICES.
(1) The indebtedness of the Borrower resulting from Accommodations under the
Credit Facility shall be evidenced by the records of the Lender which
shall constitute prima facie evidence of such indebtedness.
(2) Prior to the receipt of any Accommodation Notice, the Lender may act
upon the basis of a notice by telephone (containing the same information
as required to be contained in the Accommodation Notice) believed by it
in good faith to be from an authorized person representing the Borrower.
In the event of a conflict between the Lender's
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record of any Accommodation and the Accommodation Notice, the Lender's
record shall prevail, absent manifest error.
SECTION 10.4 NOTICES, ETC.
Any notice, direction or other communication required or permitted to be
given under this Agreement shall, except as otherwise permitted, be in
writing and given by delivering it or sending it by telecopy or other similar
form of recorded communication addressed as follows:
(a) to the Borrower at:
Xxxxxxxxx Xxxxx (Canada) Corporation
c/o Xxxxxxxxx Xxxxx Corporation
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxx Xxxxxxxx 00000
Attention: Vice President of Finance and Accounting
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) to the Lender at:
First Chicago NBD Bank, Canada
000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Commercial Loans
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any communication shall be deemed to have been validly and effectively given
(i) if personally delivered, on the date of such delivery if such date is a
Business Day and such delivery was made prior to 4:00 p.m. (Toronto time) or
(ii) if transmitted by facsimile or similar means of recorded communication
on the Business Day following the date of transmission. Any party may change
its address for service from time to time by notice given in accordance with
the foregoing and any subsequent notice shall be sent to the party at its
changed address.
SECTION 10.5 CONFIDENTIALITY.
The Lender agrees to hold any confidential nonpublic information which
it may receive from the Parent, the Borrower or any of their respective
Subsidiaries pursuant to this Agreement or any other Credit Document in
confidence, except for disclosure (i) to its Affiliates, (ii) to their
respective legal counsel and accountants, (iii) to other professional
advisors of the Lender who shall be instructed that the information is to be
treated as
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confidential, (iv) as requested pursuant to or as required by law, regulation
or legal process, (v) in connection with any legal proceeding to which the
Lender is a party, or (vi) in connection with any proposed participation or
assignment pursuant to Section 10.8; PROVIDED that the Lender shall require
that each offeree, Participant, Assignee or Affiliate agree to comply (and
require any of its offerees, Participants, Assignees or Affiliates to agree
to comply) with the provisions of this Section 10.5.
SECTION 10.6 COSTS, EXPENSES AND INDEMNITY.
(1) The Borrower agrees to reimburse the Lender for any reasonable costs,
internal charges and out-of-pocket expenses (including attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the
Lender, which attorneys and paralegals may be employees of the Lender)
paid or incurred by the Lender in connection with the preparation,
negotiation, execution, delivery, review, amendment, modification, and
administration of the Credit Documents. The Borrower also agrees to
reimburse the Lender for any costs, internal charges and out-of-pocket
expenses (including attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Lender, which attorneys and paralegals
may be employees of the Lender) paid or incurred by the Lender in
connection with any restructuring or "workout" relating to this
Agreement and the Credit Facility, the collection of the any amounts
outstanding and the enforcement of the Credit Documents. In addition to
expenses set forth above, the Borrower agrees to reimburse the Lender,
promptly after the Lender's request therefor, for each audit, collateral
analysis or other business analysis performed by or for the benefit of
the Lender in connection with this Agreement or the other Credit
Documents in an amount equal to the Lender's then customary charges for
each person employed to perform such audit or analysis, plus all costs
and expenses (including without limitation, travel expenses) incurred by
the Lender in the performance of such audit or analysis; PROVIDED that,
unless a Default shall have occurred during the relevant Fiscal Year, in
no event shall the Borrower be obligated to reimburse the Lender for
such charges, costs and expenses, which together with the similar
charges, costs and expenses charged to Parent pursuant to Section 9.7(A)
of the U.S. Credit Agreement, are in excess of U.S.$25,000 in the
aggregate per Fiscal Year. The Lender shall provide the Borrower with a
detailed statement of all reimbursements requested under this Section
10.6(1).
(2) The Borrower further agrees to defend, protect, indemnify, and hold
harmless the Lender and its Affiliates, and each of the Lender's, or
Affiliate's respective officers, directors, employees, attorneys and
agents (including, without limitation, those retained in connection with
the satisfaction or attempted satisfaction of any of the conditions set
forth in Article 6) (collectively, the "INDEMNITEES") from and against
any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of
counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees
shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising
out of:
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(a) this Agreement, the other Credit Documents or any act, event or
transaction related or attendant thereto or to the making of the
Advances, the purchasing of Bankers' Acceptances and the issuance
of and participation in Documentary Credits hereunder, the
management of such Advances, Bankers' Acceptances, Drafts or
Documentary Credits, the use or intended use of the proceeds of
the Credit Facility, or any of the other transactions contemplated
by the Credit Documents; or
(b) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural
resources or public health or welfare, costs and expenses
(including, without limitation, attorney, expert and consulting
fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent,
past, present or future relating to violation of any
Environmental, Health or Safety Requirements of Law arising from
or in connection with the past, present or future operations of
the Borrower, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective
property of the Borrower or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the
Borrower or its Subsidiaries or the release or threatened release
of any contaminant into the environment (collectively, the
"INDEMNIFIED MATTERS");
PROVIDED, HOWEVER, the Borrower shall have no obligation to an
Indemnitee hereunder with respect to Indemnified Matters to the extent
caused by or resulting from the bad faith, Gross Negligence or willful
misconduct of such Indemnitee or breach of contract by such Indemnitee
with respect to the Credit Documents, in each case, as determined by the
final non-appealed judgment of a court of competent jurisdiction. To the
extent that the undertaking to indemnify, pay and hold harmless set
forth in the preceding sentence may be unenforceable because it violates
any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by
the Indemnitees.
(3) The Borrower further agrees to assert no claim against any of the
Indemnitees on any theory of liability for consequential, punitive or
exemplary damages.
(4) The obligations and agreements of the Borrower under this Section 10.6
shall survive the termination of this Agreement.
SECTION 10.7 TAXES AND OTHER TAXES.
(1) All payments to the Lender by the Borrower under any of the Credit
Documents shall be made free and clear of and without deduction or
withholding for any and all taxes, levies, imposts, deductions, charges
or withholdings and all related liabilities (all such
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taxes, levies, imposts, deductions, charges, withholdings and
liabilities being referred to as "TAXES") imposed by Canada (or any
political subdivision or taxing authority of it), unless such Taxes are
required by applicable law to be deducted or withheld. If the Borrower
shall be required by applicable law to deduct or withhold any such Taxes
from or in respect of any amount payable under any of the Credit
Documents (i) the amount payable shall be increased (and for greater
certainty, in the case of interest, the amount of interest shall be
increased) as may be necessary so that after making all required
deductions or withholdings (including deductions or withholdings
applicable to any additional amounts paid under this Section 10.7(1)),
the Lender receives an amount equal to the amount they would have
received if no such deduction or withholding had been made, (ii) the
Borrower shall make such deductions or withholdings, and (iii) the
Borrower shall immediately pay the full amount deducted or withheld to
the relevant Governmental Authority in accordance with applicable law.
(2) The Borrower agrees to immediately pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges,
financial institutions duties, debits taxes or similar levies (all such
taxes, charges, duties and levies being referred to as "OTHER TAXES")
which arise from any payment made by the Borrower under any of the
Credit Documents or from the execution, delivery or registration of, or
otherwise with respect to, any of the Credit Documents.
(3) The Borrower shall indemnify the Lender for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable by the Borrower under
this Section 10.6(1)) paid by the Lender and any liability (including
penalties, interest and expenses) arising from or with respect to such
Taxes or Other Taxes, whether or not they were correctly or legally
asserted, excluding taxes imposed on the Lender's net income, capital
taxes or receipts and franchise taxes. The Borrower will not be required
to indemnify the Lender for any Taxes or Other Taxes imposed by reason
of the Lender being connected with Canada otherwise than merely by
lending money to the Borrower pursuant to this Agreement. Payment under
this indemnification shall be made within 30 days from the date the
Lender make written demand for it. A certificate as to the amount of
such Taxes or Other Taxes submitted to the Borrower by the Lender shall
be conclusive evidence, absent manifest error, of the amount due from
the Borrower to Lender.
(4) The Borrower shall furnish to the Lender the original or a certified
copy of a receipt evidencing payment of Taxes or Other Taxes made by the
Borrower within 30 days after the date of any payment of Taxes or Other
Taxes.
(5) If the Lender is, in its sole opinion, entitled to claim a refund or
able to apply for or otherwise take advantage of any tax credit, tax
deduction or similar benefit by reason of any withholding or deduction
made by the Borrower in respect of a payment made by it under this
Agreement, which payment shall have been increased pursuant to Section
10.7(1), then the Lender will use reasonable effort to obtain the
refund, credit, deduction or benefit and upon credit or receipt of it
will pay to the Borrower, the amount (if any) not exceeding the
increased amount paid by the Borrower, as equals
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the net after-tax value to the Lender of that part of the refund,
credit, deduction or benefit as it considers is allocatable to such
withholding or deduction having regard to all of its dealings giving
rise to similar credits, deductions or benefits in relation to the same
tax period and to the cost of obtaining the same. Nothing contained in
this Section 10.7(5) shall interfere with the right of the Lender to
arrange its tax affairs in whatever manner it deems fit and in
particular, the Lender shall be under no obligation to claim relief from
its corporate profits or similar tax liability in respect of any
deduction or withholding in priority to any other relief, claims,
credits or deductions available to it and the Lender shall not be
obligated to disclose to the Borrower any information regarding its tax
affairs, tax computations or otherwise.
(6) The provisions of this Section 10.7 shall survive the termination of the
Agreement and the repayment of all Accommodations Outstanding.
SECTION 10.8 SUCCESSORS AND ASSIGNS.
(1) This Agreement shall become effective when executed by the Borrower and
the Lender and after that time shall be binding upon and enure to the
benefit of the Borrower and the Lender and their respective successors
and permitted assigns.
(2) The Borrower shall not have the right to assign its rights or
obligations under this Agreement or any interest in this Agreement
without the prior consent of the Lender, which consent may be
arbitrarily withheld.
(3) The Lender may (i) grant participations in all or any part of its
interest in the Credit Facility to one or more Persons (each a
"PARTICIPANT"), or (ii) with the prior written consent of the Borrower
(unless an Unmatured Default or a Default shall have occurred and is
continuing and, in any event, not to be unreasonably withheld or
delayed), assign all or any part of its interest in the Credit Facility
to one or more Persons (each an "ASSIGNEE"). The Lender upon granting a
participation shall, unless otherwise expressly provided in this
Agreement, act on behalf of all of its Participants in all dealings with
the Borrower in respect of the Credit Facility and no Participant shall
have any voting or consent rights with respect to any matter requiring
the Lender's consent. In the case of an assignment, the Assignee shall
have the same rights and benefits and be subject to the same obligations
and limitations under the Credit Documents as it would have if it was
the Lender, provided that no Assignee shall be entitled to receive any
greater payment, on a cumulative basis, pursuant to this Agreement than
the Lender which granted would have been entitled to receive. No
participation shall relieve the Lender from its obligations hereunder.
(4) The Borrower shall provide such certificates, acknowledgments and
further assurances in respect of this Agreement and the Credit Facility
as the Lender may reasonably require in connection with any
participation or assignment pursuant to this Section 10.8.
(5) The Lender may deliver to the Borrower an assignment and assumption
agreement substantially in the form of Schedule 10.8(5). by which an
Assignee of the Lender
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assumes the obligations and agrees to be bound by all the terms and
conditions of this Agreement, all as if the Assignee had been an
original party. Upon the execution by the Lender, the Borrower and the
Assignee of the assignment and assumption agreement, the Lender and the
Borrower shall be released from their respective obligations under this
Agreement (to the extent of such assignment and assumption) and shall
have no liability or obligations to each other to such extent, except in
respect of matters arising prior to the assignment.
(6) Any assignment or grant of participation pursuant to this Section 10.8
will not constitute a repayment by the Borrower to the Lender of any
Accommodation, nor a new advance of any such Accommodation to the
Borrower by the Lender or by the Assignee or Participant, as the case
may be, and the parties acknowledge that the Borrower's obligations with
respect to any such Accommodations will continue and will not constitute
new obligations.
SECTION 10.9 RIGHT OF SET-OFF.
In addition to, and without limitation of, any rights of the Lender
under applicable law, if any Default occurs and is continuing, any
indebtedness from the Lender to the Borrower (including all account balances,
whether provisional or final and whether or not collected or available) may
be offset and applied toward the payment of the any and all of the
obligations of the Borrower owing to the Lender under any of the Credit
Documents, whether or not such obligations, or any part thereof, shall then
be due.
SECTION 10.10 JUDGMENT CURRENCY.
(1) If, for the purposes of obtaining judgment in any court, it is necessary
to convert a sum due to the Lender in any currency (the "ORIGINAL
CURRENCY") into another currency (the "OTHER CURRENCY"), the parties
agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which, in accordance with normal
banking procedures, the Lender could purchase the Original Currency with
the Other Currency on the Business Day preceding the day on which final
judgment is given or, if permitted by applicable law, on the day on
which the judgment is paid or satisfied.
(2) The obligations of the Borrower in respect of any sum due in the
Original Currency from it to the Lender under any of the Credit
Documents shall, notwithstanding any judgment in any Other Currency, be
discharged only to the extent that on the Business Day following receipt
by the Lender of any sum adjudged to be so due in the Other Currency,
the Lender may, in accordance with normal banking procedures, purchase
the Original Currency with such Other Currency. If the amount of the
Original Currency so purchased is less than the sum originally due to
the Lender in the Original Currency, the Borrower agrees, as a separate
obligation and notwithstanding the judgment, to indemnify the Lender,
against any loss, and, if the amount of the Original Currency so
purchased exceeds the sum originally due to the Lender in the Original
Currency, the Lender shall remit such excess to the Borrower.
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SECTION 10.11 INTEREST ON ACCOUNTS.
Except as may be expressly provided otherwise in this Agreement, all
amounts owed by the Borrower to the Lender, which are not paid when due
(whether at stated maturity, on demand, by acceleration or otherwise) shall
bear interest (both before and after default and judgment), from the date on
which such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to the sum of the Canadian
Prime Rate in effect from time to time, the Applicable Margin and 2%.
SECTION 10.12 GOVERNING LAW.
This Agreement shall be governed by and interpreted and enforced in
accordance with the laws of the Province of Ontario and the laws of Canada
applicable therein.
SECTION 10.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective authorized officers as of the date first above
written.
XXXXXXXXX XXXXX (CANADA) CORPORATION
Per: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Authorized Signing Officer
FIRST CHICAGO NBD BANK, CANADA
Per: /s/ Xxxxx Xxxxxx
---------------------------------------
Authorized Signing Officer
