EIGHTH AMENDMENT TO THE CREDIT AGREEMENT
Exhibit
99.1
EIGHTH
AMENDMENT TO THE CREDIT AGREEMENT
THIS
EIGHTH AMENDING AGREEMENT made
as of the 7th day of December, 2006
BETWEEN:
as
Borrower
and
BNY
TRUST COMPANY OF CANADA
as
Administrative Agent and Collateral Agent
and
THE
LENDERS PARTY HERETO
as
Lenders
WHEREAS
Borrower, Agents and Lenders have entered into a credit agreement dated as
of
May 19, 2005 (as the same may from time to time be amended, restated, modified
or supplemented, the "Credit
Agreement")
pursuant to which certain credit facilities were established in favour of
Borrower;
AND
WHEREAS Borrower,
Agents and Lenders, as the case may be, have entered into the following
amendments to the Credit Agreement (collectively, the "Amending
Agreements")
pursuant to which, among other things, certain amendments were made to the
Credit Agreement:
(a) a
first amendment dated July 29, 2005;
(b) a
second amendment dated August 5, 2005;
(c) a
third amendment dated September 2, 2005;
(d) a
fourth amendment dated September 2, 2005;
(e) a
fifth amendment dated November 9, 2005;
(f) a
sixth amendment dated December 5, 2005; and
(g) a
seventh amendment, consent and waiver dated February 1, 2006;
AND
WHEREAS the
parties hereto wish to amend the Credit Agreement on the terms set out
herein;
NOW
THEREFORE THIS AGREEMENT WITNESSES THAT
in consideration of the covenants and agreements contained herein and for
other
good and valuable consideration, the parties hereto agree as
follows:
SECTION
1
INTERPRETATION
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1.1
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Definitions
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In
this Eighth Amending Agreement, unless the context otherwise requires, all
terms
defined in the Credit Agreement and not otherwise defined herein shall have
the
respective meanings ascribed to them in the Credit Agreement.
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1.2
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Severability
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Each
of the provisions contained in this Eighth Amending Agreement is distinct
and
severable, and a declaration of invalidity, illegality or unenforceability
of
any such provision or part thereof by a court of competent jurisdiction shall
not affect the validity or enforceability of any other provision of this
Eighth
Amending Agreement.
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1.3
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Headings
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The
division of this Eighth Amending Agreement into sections and clauses, and
the
insertion of headings are for convenience of reference only and shall not
affect
the construction or interpretation of this Eighth Amending
Agreement.
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1.4
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Governing
Law
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This
Eighth Amending Agreement shall be governed by and construed in accordance
with
the laws of the Province of Ontario and the federal laws of Canada applicable
therein.
SECTION
2
AMENDMENTS
TO CREDIT AGREEMENT
2.1 Amendments
to Credit Agreement.
The
Credit Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent in Section
4
hereof, hereby amended as follows:
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(a)
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The
Credit Agreement is hereby amended by adding the following Schedules
and
Exhibits thereto in the form attached
hereto:
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Schedule
1.1(4)(a)
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Convertible
Term Loan Lenders Share of Convertible Term Loan
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Exhibit
1.1(4)(a)
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Form
of Notice of Convertible Term Loan Advance
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Exhibit
1.1(4)(b)
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Form
of Convertible Term Loan Note
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Exhibit
1.1(7)(a)
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Conversion
Form
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(c)
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Section
1.1(2)
of the Credit Agreement is hereby amended by adding "Notice of
Convertible
Term Loan Advance," immediately before "Notice of Revolving Advance"
in
the first sentence thereof.
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(d)
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Section
1.1
of the Credit Agreement is hereby amended by adding the following
new
Sections
1.1(4)
through (14)
(inclusive):
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"(4) Convertible
Term Loan.
(a) Subject
to the terms and conditions hereof, each Convertible Term Loan Lender agrees
to
make available to Borrower on the Convertible Term Loan Closing Date its
share
(each, a "Convertible
Term Loan Advance")
of the Convertible Term Loan as set out on Schedule
1.1(4)(a).
The Convertible Term Loan shall be made on notice (the "Notice
of Convertible Term Loan Advance")
by Borrower to Administrative Agent at the address specified on Annex
F.
The Notice of Convertible Term Loan Advance must be given no later than 11:00
a.m. (Toronto time) one (1) Business Day prior to the Convertible Term Loan
Closing Date. The Notice of Convertible Term Loan Advance must be given in
writing (by telecopy or overnight courier) substantially in the form of
Exhibit
1.1(4)(a)
and shall include the information required in such Exhibit and such other
information as may be required by Requisite Convertible Term Loan Lenders.
(b) Borrower
shall execute and deliver to each Convertible Term Loan Lender a promissory
note
(each, a "Convertible
Term Loan Note";
collectively, the "Convertible
Term Loan Notes")
to evidence such Convertible Term Loan Lender's share of the Convertible
Term
Loan. Such Convertible Term Loan Note shall be in the principal amount of
such
Convertible Term Loan Lender's share of the Convertible Term Loan, dated
as of
the Convertible Term Loan Closing Date and substantially in the form of
Exhibit
1.1(4)(b).
Each such Convertible Term Loan Note shall represent the obligation of Borrower
to pay to such Convertible Term Loan Lender the amount of such Convertible
Term
Loan Note, together with interest thereon as prescribed in Section
1.4.
Borrower acknowledges and agrees that the aggregate principal amount stated
to
be outstanding set forth on each Convertible Term Loan Note or in the Loan
Accounts shall, absent manifest error, be presumptive evidence of the amounts
due and owing to each applicable Convertible Term Loan Lender by Borrower;
provided that
any failure to so record or any error in so recording or to issue a Convertible
Term Loan Note shall not limit or otherwise affect Borrower's duty to pay
the
Obligations. Notwithstanding any other provision of this Agreement, the entire
unpaid balance of the Convertible Term Loan and all other non-contingent
Obligations related and arising with respect to the Convertible Term Loan
shall
be immediately due and payable in full in immediately available funds on
the
Convertible Term Loan Commitment Termination Date.
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(c) Each
payment of principal with respect to the Convertible Term Loan shall be paid
to
Administrative Agent for the ratable benefit of each Convertible Term Loan
Lender, ratably in proportion to each such Convertible Term Loan Lender's
Convertible Pro Rata Share of the Convertible Term Loan.
(5)
Optional
Conversion.
Upon
and subject to applicable rules of the Exchange and Applicable Securities
Legislation and the terms hereof, each Convertible Term Loan Lender shall
have
the right, at any time prior to 4:30 p.m. (Toronto time) on the Convertible
Term
Loan Maturity Date, to convert all or
any part of
the principal amount of such Convertible Term Loan Lender's share of the
Convertible Term Loan, PIK Loans with respect to PIK Interest paid or payable
on
its Convertible Term Loan and accrued and unpaid interest thereon (each,
a
"Conversion
Amount")
for fully paid and non-assessable Common Shares; provided that
each Convertible Term Loan Lender that has not exercised its conversion right
shall be required to exercise its right of conversion where so directed in
writing by Convertible Term Loan Lenders having more than seventy-five percent
(75%) of the aggregate outstanding principal amount of the Convertible Term
Loan
and, for greater certainty, upon giving such direction all Convertible Term
Loan
Lenders shall exercise their respective right of conversion. The number of
Common Shares into which such Conversion Amount may be so exchanged shall
be
determined by dividing the Conversion Amount by the Conversion Price as at
the
Date of Conversion, subject to adjustment pursuant to Section
1.1(8).
(6) Delivery
of Certificates.
As
promptly as practicable after the Date of Conversion, Borrower shall issue
or
cause to be issued and deliver or cause to be delivered to the applicable
Convertible Term Loan Lender, or on its written order, a certificate or
certificates in the name or names of the Person or Persons specified in such
order for the number of Common Shares deliverable upon the conversion of
the
Conversion Amount and provision shall be made in respect of any fraction
of a
share as provided in Section
1.1(9).
Such conversion shall be deemed to have been effected immediately prior to
4:30
p.m. (Toronto time) on the Date of Conversion and at such time the rights
of
such Convertible Term Loan Lender with respect to such Conversion Amount
shall
cease and the Person or Persons in whose name or names any certificate or
certificates for Common Shares shall be deliverable upon such conversion
shall
be deemed to have become on such date the holder or holders of record of
the
Common Shares represented thereby; provided,
however,
that no such conversion on any date on which the transfer registers for Common
Shares of Borrower shall be closed shall be effective to constitute the Person
or Persons entitled to receive the Common Shares upon such conversion as
the
holder or holders of record of such Common Shares on such date, but such
surrender shall be effective to constitute the Person or Persons entitled
to
receive such Common Shares as the holder or holders of record thereof for
all
purposes on the next succeeding date on which such transfer registers are
open.
(7) Manner
of Exercise of Right to Convert.
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(a) The
applicable Convertible Term Loan Lender converting its Conversion Amount
into
Common Shares shall surrender its Convertible Notes (if any) to Borrower
at its
chief executive office indicated in Annex
F
together with a completed Conversion Form or any other written notice in
a form
satisfactory to Borrower, in either case duly executed by such Convertible
Term
Loan Lender, exercising the right to convert such Conversion Amount or being
required to convert such Conversion Amount in accordance with the provisions
hereof. If any of the Common Shares into which such Conversion Amount is
to be
converted are to be issued to a Person or Persons other than the applicable
Convertible Term Loan Lender (e.g. a nominee name), such Conversion Form
or
notice shall be in form and execution satisfactory to Borrower and shall
be
accompanied by payment to Borrower of any transfer tax which may be payable
by
reason thereof. Upon the surrender of such Convertible Notes accompanied
by such
Conversion Form or notice (i) the applicable Convertible Term Loan Lender
shall
be issued the number of Common Shares which it shall be entitled to receive
on
such conversion, (ii) the applicable Convertible Term Loan Lender releases
Borrower of all liability with respect to the Conversion Amount which has
been
converted, and (iii) Borrower agrees that the surrender of such Convertible
Notes constitutes the sole consideration for the Common Shares issuable upon
such conversion. Subject to Section
1.1(7)(b),
upon delivery of the requisite Conversion Form or notice, such Convertible
Term
Loan Lender or, subject to payment of all applicable stamp or security transfer
taxes or other governmental charges and compliance with all reasonable
requirements of Borrower, the nominee(s) or assignee(s) thereof, shall be
entitled to be entered in the books of Borrower as at the Date of Conversion
as
the holder of the number of Common Shares into which such Conversion Amount
is
convertible in accordance with the provisions hereof and, as soon as practicable
thereafter, Borrower shall deliver to such Convertible Term Loan Lender or,
subject as aforesaid, the nominee(s) or assignee(s) thereof, a certificate
or
certificates for such Common Shares and make or cause to be made any payment
of
dividends to which such Convertible Term Loan Lender is entitled in accordance
with Section
1.1(7)(c).
(b) A
Convertible Note shall be deemed to be surrendered for conversion on the
date
(herein called the "Date
of Conversion")
on which it is so surrendered in accordance with the provisions of Section
1.1(7);
provided that
if a Convertible Note is surrendered for conversion on a day on which the
register of Common Shares is closed, the Person or Persons entitled to receive
Common Shares shall become the holder or holders of record of such Common
Shares
as at the date on which such registers are next reopened.
(c) The
Common Shares issued upon a conversion shall be entitled to receive dividends
declared in favour of shareholders of record on and after the Date of Conversion
or such later date as such Person shall become the holder of record of such
Common Shares pursuant to Section
1.1(7)(b),
from which applicable date the Common Shares issued on conversion will for
all
purposes be and be deemed to be issued and outstanding as fully paid and
non-assessable Common Shares.
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(8) Adjustment
of Conversion Price.
The
Conversion Price in effect at any date shall be subject to adjustment from
time
to time as follows:
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(a)
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If
and whenever at any time prior to the Convertible Term Loan Maturity
Date
Borrower shall:
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(i)
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subdivide
or redivide the outstanding Common Shares into a greater number
of
shares;
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(ii)
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reduce,
combine or consolidate the outstanding Common Shares into a smaller
number
of shares; or
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(iii)
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issue
Common Shares to the holders of all or substantially all of the
outstanding Common Shares by way of a stock
dividend,
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the
Conversion Price in effect on the effective date of such subdivision,
redivision, reduction, combination or consolidation or on the record date
for
such issue of Common Shares by way of a stock dividend, as the case may be,
shall in the case of any of the events referred to in (i) and (iii) above
be
decreased in proportion to the number of outstanding Common Shares resulting
from such subdivision, redivision or dividend, or shall, in the case of any
of
the events referred to in (ii) above, be increased in proportion to the number
of outstanding Common Shares resulting from such reduction, combination or
consolidation. Such adjustment shall be made successively whenever any event
referred to in this Section
1.1(8)(a)
shall occur. Any such issue of Common Shares by way of a stock dividend shall
be
deemed to have been made on the record date for the stock dividend for the
purpose of calculating the number of outstanding Common Shares under subsections
(b) and (c) of this Section
1.1(8).
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(b)
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If
and whenever at any time prior to the Convertible Term Loan Maturity
Date
Borrower shall fix a record date for the issuance of rights or
warrants to
any holders of its outstanding Common Shares entitling them, for
a period
expiring not more than 45 days after such record date, to subscribe
for or
purchase Common Shares (or securities convertible into Common Shares)
at a
price per share (or having a conversion or exchange price per share)
less
than the Current Market Price of a Common Share on such record
date, the
Conversion Price shall be adjusted immediately after such record
date so
that it shall equal the price determined by multiplying the Conversion
Price in effect on such record date by a fraction, of which the
numerator
shall be the total number of Common Shares outstanding on such
record date
plus a number of Common Shares equal to the number arrived at by
dividing
the aggregate price of the total number of additional Common Shares
offered for subscription or purchase (or the aggregate conversion
or
exchange price of the convertible securities so offered) by such
Current
Market Price per Common Share, and of which the denominator shall
be the
total number of Common Shares outstanding on such record date plus
the
total number of additional Common Shares offered for subscription
or
purchase (or
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into
which the convertible securities so offered are convertible).
Such
adjustment shall be made successively whenever such a record
date is
fixed. To the extent that any such rights or warrants are not
so issued or
any such rights or warrants are not exercised prior to the expiration
thereof, the Conversion Price shall be re-adjusted to the Conversion
Price
which would have been in effect if such record date had not been
fixed or
to the Conversion Price which would have been in effect based
upon the
number of Common Shares (or securities convertible into Common
Shares)
actually issued upon the exercise of such rights or warrants,
as the case
may be.
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(c)
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If
and whenever at any time prior to the Convertible Term Loan Maturity
Date
Borrower shall fix a record date for the making of a distribution
to any
holders of its outstanding Common Shares of (i) shares of any class
other
than Common Shares or (ii) rights, options or warrants (excluding
rights,
options or warrants entitling the holders thereof for a period
of not more
than 45 days to subscribe for or purchase Common Shares or securities
convertible into Common Shares) or (iii) evidences of its indebtedness
or
(iv) cash or other assets then, in each such case, the Conversion
Price
shall be adjusted immediately after such record date so that it
shall
equal the price determined by multiplying the Conversion Price
in effect
on such record date by a fraction, of which the numerator shall
be the
total number of Common Shares outstanding on such record date multiplied
by the Current Market Price per Common Share on such record date,
less the
fair market value (as determined by the Board of Directors with
the
approval of Requisite Convertible Term Loan Lenders, which determination
shall be conclusive) of such shares or rights, options or warrants
or
evidences or indebtedness or assets so distributed, and of which
the
denominator shall be the total number of Common Shares outstanding
on such
record date multiplied by such Current Market Price per Common
Share. Such
adjustment shall be made successively whenever such a record date
is
fixed. To the extent that such distribution is not so made, the
Conversion
Price shall be re-adjusted to the Conversion Price which would
have been
in effect if such record date had not been fixed or to the Conversion
Price which would have been in effect based upon such shares or
rights,
options or warrants or evidences of indebtedness or assets actually
distributed, as the case may be.
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(d)
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For
the purpose of any computation under subsections (b) or (c) of
this
Section
1.1(8),
the current market price per Common Share at any date shall be
the
weighted average price per share for Common Shares for the twenty
(20)
consecutive Trading Days ending five (5) Trading Days before such
date on
the Exchange (the
"Current
Market Price").
The weighted average price shall be determined by dividing the
aggregate
sale price of all Common Shares sold on such Exchange during the
said
twenty (20) consecutive Trading Days by the total number of Common
Shares
so sold.
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(e)
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In
the case of any reclassification or change (other than a change
resulting
only from consolidation or subdivision) of the Common Shares or
in case of
any amalgamation, consolidation or merger of Borrower with or into
any
other corporation, or in the case of any sale of the properties
and assets
of Borrower, as
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or
substantially as, an entirety to any other corporation, the Conversion
Price and the Common Shares, as the case may be, shall be adjusted
so that
any Conversion Amount shall, after such reclassification, change,
amalgamation, consolidation, merger or sale, be convertible into
the
number of shares of Borrower, or such continuing, successor or
purchaser
corporation, as the case may be, which the applicable Convertible
Term
Loan Lender would have been entitled to receive as a result of
such
reclassification, change, amalgamation, consolidation, merger
or sale if
on the effective date thereof it had been the holder of the number
of
Common Shares into which the Conversion Amount was convertible
prior to
the effective date of such reclassification, change, amalgamation,
consolidation, merger or sale. No such reclassification, change,
amalgamation, consolidation, merger or sale shall be carried
into effect
unless (i) in the opinion of the Board of Directors, all necessary
steps
shall have been taken to ensure that the Convertible Term Loan
Lenders
shall thereafter be entitled to receive such number of shares
of Borrower,
or such continuing, successor or purchasing corporation, as the
case may
be, subject to adjustment thereafter in accordance with provisions
similar, as nearly as may be, to those contained in this Section
1.1(8);
and (ii) such shares constitute prescribed securities for the
purposes of
clause
212(1)(b)(vii)(E)
of the ITA.
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(f)
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In
any case in which this Section
1.1(8)
shall require that an adjustment shall become effective immediately
after
a record date for an event referred to herein, Borrower may defer,
until
the occurrence of such event, issuing to the applicable Convertible
Term
Loan Lender converting after such record date and before the occurrence
of
such event the additional Common Shares issuable upon such conversion
by
reason of the adjustment required by such event before giving effect
to
such adjustment; provided,
however,
that Borrower shall deliver to such Convertible Term Loan Lender
an
appropriate instrument evidencing such Convertible Term Loan Lender's
right to receive such additional Common Shares upon the occurrence
of the
event requiring such adjustment and the right to receive any distributions
made on such additional Common Shares declared in favour of holders
of
record of Common Shares on and after the Date of Conversion or
such later
date as such Convertible Term Loan Lender would, but for the provisions
of
this Section
1.1(8)(f),
have become the holder of record of such additional Common Shares
pursuant
to Section
1.1(7).
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(g)
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The
adjustments provided for in this Section
1.1(8)
are cumulative, will be computed to the nearest of one-tenth of
one cent,
and shall apply to successive subdivisions, redivisions, reductions,
combinations, consolidations, distributions, issues or other events
resulting in any adjustment under the provisions of this Section;
provided that,
notwithstanding any other provision of this Section,
no adjustment of the Conversion Price shall be required unless
such
adjustment would require an increase or decrease of at least one
percent
(1%) in the Conversion Price then in effect; provided however,
that any adjustments which by reason of this Section
1.1(8)(g)
are not required to be made shall be carried forward and taken
into
account in any subsequent
adjustment.
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(h)
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In
the event of any question arising with respect to the adjustments
provided
in this Section
1.1(8),
such question shall be conclusively determined by a firm of chartered
accountants appointed by Borrower and acceptable to Requisite Convertible
Term Loan Lenders (who may be the auditors of Borrower); such accountants
shall have access to all necessary records of Borrower and such
determination shall be binding upon Borrower, Agents and Convertible
Term
Loan Lenders, absent manifest error. If any such determination
is made,
Borrower will deliver an Officers' Certificate to each Convertible
Term
Loan Lender describing such
determination.
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(i)
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In
case Borrower shall take any action affecting the Common Shares
other than
action described in this Section
1.1(8),
which in the opinion of the Board of Directors would affect the
rights of
Convertible Term Loan Lenders, the Conversion Price shall be adjusted
in
such manner and at such time, by action of the Board of Directors,
subject
to the prior written consent of the Exchange if necessary, as the
Board of
Directors in their sole discretion may determine to be equitable
in the
circumstances. Failure of the Board of Directors to make such an
adjustment shall be conclusive evidence that the Board of Directors
have
determined that it is equitable to make no adjustment in the
circumstances.
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(j)
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No
adjustment in the Conversion Price shall be made in respect of
any event
described in Section
1.1(8)(a),
(b)
and (c)
if Convertible Term Loan Lenders are entitled to participate in
such event
on the same terms mutatis
mutandis
as if they had converted their Convertible Notes prior to the effective
date or record date, as the case may be, of such
event.
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(k)
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Any
amendment or change to the Conversion Price shall require the prior
written consent of all Convertible Term Loan Lenders, except if
such
amendment or change is related to an adjustment to the Conversion
Price
made from time to time in accordance with Section
1.1(8).
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(9)
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No
Requirement to Issue Fractional
Shares.
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Borrower
shall not be required to issue fractional shares upon any conversion hereunder.
If more than one (1) Convertible Note shall be surrendered for conversion
at one
time by the same Convertible Term Loan Lender, the number of whole Common
Shares
issuable upon conversion thereof shall be computed on the basis of the aggregate
principal amount of such notes to be converted. If any fractional interest
in a
Common Share would, except for the provisions of this Section,
be deliverable to any Convertible Term Loan Lender upon the conversion of
any
Convertible Note, Borrower shall, if not prohibited by any agreement to which
it
is a party, in lieu of delivering any certificate representing such fractional
interest, make a cash payment to such Convertible Term Loan Lender in an
amount
equal to the fractional interest multiplied by the Conversion Price. If
prohibited from doing so, it will make such cash payment as soon as reasonably
practicable after such time as it is no longer prohibited.
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(10)
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Borrower
to Reserve Shares.
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Borrower
covenants with Convertible Term Loan Lenders that it will at all times reserve
and keep available out of its authorized Common Shares, solely for the purpose
of issuance upon conversion of the Conversion Amounts and Convertible Notes
as
herein provided, and conditionally allot to Convertible Term Loan Lenders
who
may exercise their conversion rights hereunder, such number of Common Shares
as
shall then be issuable upon the conversion of all outstanding Conversion
Amounts
and Convertible Notes. Borrower covenants with Convertible Term Loan Lenders
that all Common Shares which shall be so issuable shall be duly and validly
issued as fully-paid and non-assessable shares.
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(11)
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Taxes
and Charges on
Conversion.
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Borrower
will from time to time promptly pay or make provision satisfactory to
Convertible Term Loan Lenders for the payment of any and all Taxes and Charges
which shall be payable with respect to the issuance or delivery to Convertible
Term Loan Lenders, upon the exercise of their right to conversion, of Common
Shares of Borrower pursuant to the terms hereof.
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(12)
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Cancellation
of Converted Convertible
Notes.
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All
Convertible Notes converted under the provisions hereunder shall be forthwith
delivered to and cancelled by Borrower, subject to the provisions of
Section
1.1(6).
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(13)
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Certificate
as to Adjustment.
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Borrower
shall from time to time immediately after the occurrence of any event which
requires an adjustment or readjustment as provided in Section
1.1(8),
deliver an Officers' Certificate to each Convertible Term Loan Lender specifying
the nature of the event requiring the same and the amount of the adjustment
necessitated thereby and setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based, which
certificate and the amount of the adjustment specified therein shall be verified
by an opinion of a firm of chartered accountants appointed by Borrower and
acceptable to Requisite Convertible Term Loan Lenders (who may be the auditors
of Borrower) and, when approved by Requisite Convertible Term Loan Lenders,
shall be conclusive and binding on all parties in interest. When so approved,
Borrower shall forthwith give notice to Convertible Term Loan Lenders in
the
manner provided in Section
11.10
specifying the event requiring such adjustment or readjustment and the results
thereof, including the resulting Conversion Price.
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(14)
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Notice
of Special Matters.
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Borrower
covenants with Convertible Term Loan Lenders that so long as any Convertible
Note remains outstanding, it will give notice to Convertible Term Loan Lenders
in the manner provided in Section
11.10
of (i) the voluntary or involuntary dissolution, liquidation or winding-up
of
Borrower to the extent permitted hereunder or (ii) its intention to fix a
record
date for any event referred to in Section
1.1(8)
which may give rise to an adjustment in the Conversion Price. Such notice
shall
specify the particulars of such event, the record date or the date the books
of
Borrower shall close and the effective date for such event; provided that
Borrower shall only be required to specify in such notice such particulars
of
such event as shall have been fixed and determined on the date on which such
notice is given. Such notice shall be given not less than fourteen (14) days
in
each case prior to such applicable record date or the date on which Borrower's
books are to be closed.
|
(e)
|
Section
1.2
of the Credit Agreement is hereby amended by adding "and the Convertible
Term Loan Payout Fee" to the end of the second sentence
thereof.
|
|
(f)
|
Section
1.3
of the Credit Agreement is hereby amended by adding "the Convertible
Term
Loan Advances," immediately before "the Revolving Credit Advances"
in the
first sentence thereof.
|
|
(g)
|
Section
1.4(1)
of the Credit Agreement is hereby amended by adding "and the Convertible
Term Loan Advances" immediately after "Revolving Credit Advance"
in the
first sentence thereof.
|
|
(h)
|
Section
1.4(2)
of the Credit Agreement is hereby amended by adding "and the Convertible
Term Loan Advances" immediately after "Revolving Credit Advance"
in the
first sentence thereof.
|
|
(i)
|
Section
1.4(3)
of the Credit Agreement is hereby amended by deleting the last
sentence
thereof and replacing it with the
following:
|
"Notwithstanding
the foregoing sentence, the entire unpaid balance of the PIK Loan and all
other
non-contingent Obligations, in each case related and arising with respect
to the
Convertible Term Loan, shall be immediately due and payable in full in
immediately available funds on the Convertible Term Loan Commitment Termination
Date. Each payment of principal with respect to the PIK Loan related and
arising
with respect to the Revolving Loan and Term Loan shall be paid to Administrative
Agent for the ratable benefit of each Revolving Lender, ratably in proportion
to
each such Revolving Lender's Revolving Pro Rata Share of such PIK Loans.
Each
payment of principal with respect to the PIK Loans related and arising with
respect to the Convertible Term Loan shall be paid to Administrative Agent
for
the ratable benefit of each Convertible Term Loan Lender, ratably in proportion
to each such Convertible Term Loan Lender's Convertible Pro Rata Share of
such
PIK Loans. At the written request of a Convertible Term Loan Lender and for
purposes of Section
1.1(7),
Borrower shall promptly execute and deliver to such Convertible Term Loan
Lender
a separate PIK Note (each, a "Convertible
PIK
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11
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Note";
collectively, the "Convertible
PIK Notes")
evidencing such Convertible Term Loan Lender's PIK Advances made in respect
of
the payment of PIK Interest on its share of the Convertible Term Loan and
Administrative Agent shall make such notations on the existing PIK Notes
or in
the Loan Accounts to evidence such issuance of a Convertible PIK Note in
accordance with Administrative Agent's customary accounting practices as
in
effect from time to time."
|
(j)
|
Section
1.8
of the Credit Agreement is hereby amended by adding the following
new
Section
1.8(3):
|
" (3) On
the Convertible Term Loan Commitment Termination Date, a payout and completion
fee (the "Convertible
Term Loan Payout Fee")
in the amount of five percent (5%) of the amount of the Convertible Term
Loan
(Cdn$20,000,000.00): provided that, for greater certainty, only persons that
are
Convertible Term Loan Lenders on the Convertible Term Loan Commitment
Termination Date shall be entitled to their Convertible Pro Rata Share of
the
Convertible Term Loan Payout Fee. For the avoidance of doubt, the Convertible
Term Loan Payout Fee will not be payable to the Convertible Term Loan Lenders
in
the event that they elect to convert their Convertible Term Loan into Common
Shares pursuant to Section
1.1(5).
The Convertible Term Loan Payout Fee shall be fully earned on the date of
required payment thereof and shall be non-refundable when paid."
|
(k)
|
Section
1.16(4)
of the Credit Agreement is hereby amended by adding "and the Convertible
Term Loan Payout Fee" immediately after "the Payout
Fee".
|
|
(l)
|
Section
5.10(1)
of the Credit Agreement is hereby amended by deleting the term
"Term Loan"
and replacing it with "Loans".
|
|
(m)
|
Section
5.14
of the Credit Agreement is hereby deleted and replaced with "Intentionally
Deleted".
|
|
(n)
|
Section
6.9
of the Credit Agreement is hereby deleted and replaced with "Intentionally
Deleted".
|
|
(o)
|
Section
7.1
of the Credit Agreement is hereby deleted and replaced with the
following:
|
"7.1 Termination.
The
financing arrangements contemplated hereby shall be in effect until the
Commitment Termination Date or, with respect to the Convertible Term Loan,
if on
a later date than the Commitment Termination Date, the Convertible Term Loan
Commitment Termination Date and:
|
(a)
|
the
Revolving Loan and Term Loan and all other Obligations related
and arising
with respect thereto shall be automatically due and payable in
full on the
Commitment Termination Date; and
|
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12
-
|
(b)
|
the
Convertible Term Loan and all other Obligations related and arising
with
respect thereto shall be automatically due and payable in full
on the
Convertible Term Loan Commitment Termination
Date."
|
|
(p)
|
Section
7.2
of the Credit Agreement is hereby amended by deleting the first
sentence
thereof and replacing it with the
following:
|
"Except
as otherwise expressly provided for in the Loan Documents, no termination
or
cancellation (regardless of cause or procedure) of any financing arrangement
under this Agreement shall in any way affect or impair the obligations, duties
and liabilities of Borrower or its Subsidiaries or the rights of Agents and
Lenders relating to any unpaid portion of the Loans or any other Obligations,
due or not due, liquidated, contingent or unliquidated or any transaction
or
event occurring prior to such termination or cancellation, or any transaction
or
event, the performance of which is required after the Commitment Termination
Date (in the case of the Revolving Loan and Term Loan) and the Convertible
Term
Loan Commitment Termination Date (in the case of the Convertible Term
Loan)."
|
(q)
|
Section
9.1(1)
of the Credit Agreement is hereby amended by adding "(in respect
of
assignments of the Revolving Loan and Term Loan) and Requisite
Convertible
Term Loan Lenders (in respect of assignments of the Convertible
Term
Loan)" after "Requisite Lenders" in subparagraph (i) of the second
sentence thereof.
|
|
(r)
|
Section
9.8
of the Credit Agreement is hereby amended by deleting the second
sentence
thereof and replacing it with the
following:
|
"Any
Revolving Lender exercising a right of setoff or otherwise receiving any
payment
on account of the Obligations related and arising with respect to the Revolving
Loan and Term Loan in excess of its Revolving Pro Rata Share thereof shall
purchase for cash (and the other applicable Revolving Lenders or holders of the
Revolving Loan and Term Loan shall sell) such participations in each such
other
Revolving Lender's or holder's Revolving Pro Rata Share of such Obligations
as
would be necessary to cause such Revolving Lender to share the amount so
offset
or otherwise received with each other Revolving Lender or holder in accordance
with their respective Revolving Pro Rata Shares (other than offset rights
exercised by any Lender with respect to Sections
1.12,
1.13
or 1.14).
Any Convertible Term Loan Lender exercising a right of setoff or otherwise
receiving any payment on account of the Obligations related and arising with
respect to the Convertible Term Loan in excess of its Convertible Pro Rata
Share
thereof shall purchase for cash (and the other applicable Convertible Term
Loan
Lenders or holders of the Convertible Term Loan shall sell) such participations
in each such other Convertible Term Loan Lender's or holder's Convertible
Pro
Rata Share of such Obligations as would be necessary to cause such Convertible
Term Loan Lender to share the amount so offset or otherwise received with
each
other Convertible Term Loan Lender or holder in accordance with their respective
Convertible Pro Rata Shares (other than offset rights exercised by any Lender
with respect to Sections
1.12,
1.13
or 1.14)."
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13
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|
(s)
|
The
third sentence of Section
9.8
of the Credit Agreement is hereby amended by replacing the term
"Pro Rata
Share" with "Revolving Pro Rata Share or Convertible Pro Rata Share,
as
the case may be,".
|
|
(t)
|
Section
9.9(1)(b)
of the Credit Agreement is hereby amended by replacing the term
"Pro Rata
Share" with "Revolving Pro Rata Share or Convertible Pro Rata Share,
as
the case may be,".
|
|
(u)
|
Section
9.9(4)(c)(i)(1)
of the Credit Agreement is hereby deleted and replaced with the
following:
|
|
"(1)
|
firstly,
any Other Lender shall have the right (but shall have no obligation)
to
purchase from any such Non-Funding Lender, and such Non-Funding
Lender
agrees that it shall, at such request, sell and assign to such
Other
Lender, such Other Lender's Revolving Pro Rata Share and Convertible
Pro
Rata Share of such Non-Funding Lender's Revolving Loan, Term Loan
or
Convertible Term Loan, as the case may be, (and the Revolving Pro
Rata
Share or Convertible Pro Rata Share, as the case may be, of any
Other
Lender therein not exercising its rights hereunder or other applicable
amount) for an aggregate amount equal to such Non-Funding Lender's
Revolving Pro Rata Share of the principal balance of the Revolving
Loan or
Term Loan and Convertible Pro Rata Share of the principal balance
of the
Convertible Term Loan and all accrued interest and Fees with respect
thereto through the date of sale, such sale and assignment to be
consummated pursuant to an executed Assignment Agreement;
and"
|
|
(v)
|
Section
9.9(4)(c)(i)(2)
of the Credit Agreement is hereby amended by adding "and Loans"
after
"Commitment" therein.
|
|
(w)
|
Section
11.3(1)
of the Credit Agreement is hereby amended by replacing "Revolving
Credit
Advances" with "Advances".
|
|
(x)
|
Section
11.3
of the Credit Agreement is hereby amended by adding the following
to the
end thereof:
|
"Notwithstanding
the foregoing, in the case of reimbursement of legal counsel for Lenders,
such
reimbursement shall be limited to one lead legal counsel and one local legal
counsel in each applicable jurisdiction for Lenders except as otherwise
consented to in writing by Requisite Lenders."
|
(y)
|
The
Credit Agreement is hereby amended by adding the following new
Section
11.21:
|
"11.21 Convertible
Term Loan Lender Consent
Subject
to Section
11.2:
(1) No
Amendments and Waivers without Requisite Convertible Term Loan Lenders'
Consent.
Except for actions expressly permitted to be taken by an Agent and subject
to
paragraph (2) below, no amendment, modification, termination or waiver of
any
provision of this Agreement or any other Loan Document affecting only the
Convertible
-
14
-
Term
Loan, or any consent to any departure by Borrower or its Subsidiaries therefrom,
shall in any event be effective unless the same shall be in writing and signed
by Borrower and Administrative Agent; provided that
Administrative Agent has received prior written consent and/or instructions
(including by telecopy, facsimile transmission or other direct written
electronic means) to sign any such amendment, modification, termination or
waiver from Requisite Convertible Term Loan Lenders.
(2)
Affected
Convertible Term Loan Lender Consent.
Except as otherwise expressly provided in this Agreement, unless in writing
and
signed by Administrative Agent and each Convertible Term Loan Lender directly
affected thereby, no amendment, modification, termination or waiver
shall:
(a) increase
the principal amount of any Convertible Term Loan Lender's share of the
Convertible Term Loan (which action shall be deemed only to affect those
Convertible Term Loan Lenders whose shares are increased);
(b) reduce
the principal of, rate of interest on or Fees payable with respect to any
Convertible Term Loan or other Obligations related and arising with respect
to
the Convertible Term Loan of any affected Convertible Term Loan Lender;
(c) extend
any scheduled payment date or final maturity date of the principal amount
of any
Convertible Term Loan or any other Obligation related and arising with respect
to the Convertible Term Loan of any affected Convertible Term Loan
Lender;
(d) waive,
forgive, defer, extend or postpone any payment of interest or Fees as to
any
affected Convertible Term Loan Lender;
(e) amend
or waive this Section
11.21
or the definition of the term "Requisite Convertible Term Loan Lenders",
insofar
as such definition affects the substance of this Section
11.21;
and
(f) amend
or change the Conversion Price, except if such amendment or change is related
to
an adjustment to the Conversion Price made from time to time in accordance
with
Section
1.1(8).
(3) Effect
of Amendments and Waivers.
No amendment, modification, termination or waiver of any provision of any
Convertible Term Loan Note or Convertible PIK Note shall be effective without
the written concurrence of the holder of such note. Any amendment, modification,
termination, waiver or consent effected in accordance with this Section
11.21
shall be binding upon each holder of the Convertible Term Loan Notes and
Convertible PIK Notes at the time outstanding and each future holder of such
notes.
(4) Non-Consenting
Convertible Term Loan Lenders.
If, in connection with any proposed amendment, modification, waiver or
termination requiring the consent of all affected Convertible Term Loan Lenders,
the consent of Requisite Convertible Term Loan Lenders is obtained, but the
consent of other Convertible Term Loan Lenders whose consent is required
is not
obtained (any such Convertible Term Loan Lender whose consent is not obtained
being referred to as "Non-Consenting
CTL Lender")
then, at Borrower's or Requisite Convertible Term Loan Lenders' request,
a
Person
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15
-
acceptable
to Requisite Convertible Term Loan Lenders (in their sole discretion), shall
have the right (but without any obligation) to purchase from such Non-Consenting
CTL Lender, and such Non-Consenting CTL Lender agrees that it shall, upon
such
request, sell and assign to such Person, all of the Convertible Term Loan
of
such Non-Consenting CTL Lender for an amount equal to the principal balance
of
the Convertible Term Loan held by such Non-Consenting CTL Lender and all
accrued
interest and Fees with respect thereto through the date of sale, such sale
and
assignment to be consummated pursuant to an executed Assignment Agreement.
(5) Releases.
Until the Convertible Term Loan and all Obligations related and arising with
respect to the Convertible Term Loan have been indefeasibly paid in full,
Borrower agrees that it will not release all claims against Agents and
Convertible Term Loan Lenders under or in connection with the Credit
Agreement."
|
(z)
|
Annex
A
to the Credit Agreement is hereby amended by (i) adding the definitions
set out in Schedule
A
hereto to Annex
A
of the Credit Agreement in their respective proper alphabetical
order and
(ii) replacing existing definitions in Annex
A
of the Credit Agreement with the corresponding definitions set
out in
Schedule
A
hereto; provided that,
the defined terms in Section
11.2
of the Credit Agreement shall be unaffected and shall not be amended
by
the terms of this Eighth Amending Agreement and, for greater certainty,
shall have the respective meanings given to them in Annex
A
of the Credit Agreement and not the meanings given to them in Schedule
A
hereto; provided further
that the definitions of "Lenders" and "Loans" found in the definition
of
"Requisite Lenders" in Annex
A
of the Credit Agreement shall have the respective meanings given
to them
in Annex
A
of the Credit Agreement unamended by this Eighth Amending Agreement
and
not the meanings given to them in Schedule
A
hereto.
|
|
(aa)
|
Annex
E
to the Credit Agreement is hereby deleted together with the definitions
related thereto being "EBITDA", "Fixed Charges", "Interest Expense"
and
"Senior Funded Debt".
|
|
(bb)
|
Annex
F
to the Credit Agreement is hereby amended as follows:
|
|
(i)
|
the
account wire details of GMAM Investment Funds Trust II for purposes
of the
existing Term Loan shall be as set forth on the two (2) signature
pages of
GMAM Investment Funds Trust II hereto and marked "GMAM Investment
Funds
Trust II Signature Page to the Credit Agreement";
|
|
(ii)
|
the
address and wire details of each Convertible Term Loan Lender is
as set
forth on their respective signature pages hereto;
|
|
(iii)
|
the
address of DDJ Capital Management, LLC is changed to "130 Xxxxxx
Xxxxxx,
Xxxxxxxx 0, Xxxxx 000, Xxxxxxx, XX 00000";
and
|
|
(iv)
|
the
address of Greywolf Loan Participation LLC is changed to "0 Xxxxxxxxxxxxxx
Xxxx, Xxx Xxxx, XX, 00000, Telecopier No.: (000) 000-0000 and Telephone
No.: (000) 000-0000".
|
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16
-
|
(cc)
|
The
Credit Agreement is hereby amended by replacing "Pro Rata Share"
with
"Revolving Pro Rata Share" in the following: Sections
1.1(1)(a), (b) and (c), 1.1(3)(a) and (c), 1.8(1)(b), 2.3, 9.1(1),
9.9(1)(a), 9.9(2)(a) and (b), 9.9(4)(c)(ii)(1) and in the first
paragraph
of each Revolving Note.
|
|
(dd)
|
The
signature page of GMAM Investment Funds Trust II to the Credit
Agreement
dated May 19, 2005 (unamended) is hereby amended and replaced by
the two
(2) signature pages of GMAM Investment Funds Trust II hereto and
marked
"GMAM Investment Funds Trust II Signature Page to the Credit
Agreement".
|
|
(ee)
|
The
Credit Agreement is hereby amended by replacing "Lender" with "Revolving
Lender" (except, for greater certainty, wherever the term "Requisite
Lenders" is used) in the following: Sections
1.1(1)(a), (b) and (c), 1.1(3)(a) and (c), the first sentence of
1.8(1),
1.8(1)(b), 2.1, 2.1(1), (2), (4), (5), (6) and (7), 2.2, 2.3, 9.9(1)(a),
the fourth reference to "Lenders" in 9.9(1)(b), the first and second
sentences in 9.9(2)(a), 9.9(2)(b), 9.9(4)(b)(ii); the definitions
of:
"Commitment", "Revolving Loan Commitment No. 1", "Revolving Loan
Commitment No. 2", "Revolving Loan Commitment No. 3", "Revolving
Loan
Commitment No. 4"; paragraph (7) of Annex C; and in each of the
first and
penultimate paragraph of each Revolving
Note.
|
SECTION
3
REPRESENTATIONS,
WARRANTIES AND COVENANTS
|
3.1
|
Representations,
Warranties and Covenants
|
Borrower
represents, warrants and covenants to Agents and Lenders as follows, which
representations, warranties and covenants shall survive the execution and
delivery of this Eighth Amending Agreement and which representations, warranties
and covenants will continue in full force and effect for the benefit of Agents
and Lenders until the Convertible Term Loan Maturity Date, unaffected by
any
investigation made by or on behalf of Agents and Lenders in the course of
preparation of this Eighth Amending Agreement:
|
(a)
|
the
representations and warranties set forth in Section
3
of the Credit Agreement, as amended by the Disclosure Letter, continue
to
be true and correct as of the Convertible Term Loan Closing Date
with
reference to the "Closing Date" therein being deemed a reference
to the
"Convertible Term Loan Closing
Date";
|
|
(b)
|
Borrower
has the corporate power and capacity to execute, deliver and perform
its
obligations under this Eighth Amending
Agreement;
|
|
(c)
|
all
necessary action, corporate or otherwise, has been taken to authorize
the
execution, delivery and performance of this Eighth Amending Agreement
by
Borrower;
|
|
(d)
|
Borrower
has duly executed and delivered this Eighth Amending
Agreement;
|
|
(e)
|
this
Eighth Amending Agreement is a legal, valid and binding obligation
of
Borrower, enforceable against it by Agent and Lenders in accordance
with
its terms, except to the extent that the enforceability thereof
may be
limited by applicable bankruptcy,
|
-
17
-
|
|
insolvency,
moratorium, reorganization and other laws of general application
limiting
the enforcement of creditor's rights generally and the fact that
the
courts may deny the granting or enforcement of equitable
remedies;
|
|
(f)
|
except
as otherwise disclosed in the Disclosure Letter, no Default or
Event of
Default exists and Requisite Lenders hereby agree to waive the
Event of
Default specifically set forth in the Disclosure Letter; provided that
such waiver shall not extend to any other Default or Event of Default
that
may occur or exist and shall not be construed as a waiver of any
other
provision of the Loan Documents or any right to charge default
interest
with respect to other Defaults or Events of
Default;
|
|
(g)
|
except
as otherwise disclosed in the Disclosure Letter, Borrower is in
compliance
with the covenants contained in Sections
4,
5
and 6
of the Credit Agreement;
|
|
(h)
|
if
at any time any order, ruling, registration, notice or filing pursuant
to
any Applicable Securities Legislation is required to ensure that
any
Common Shares issuable upon the conversion of the Convertible Notes
and
Conversion Amount are issued in compliance with such laws or to
ensure
that any such Common Shares are not subject to any restriction
as to the
resale (other than restrictions imposed on Persons referred to
in
Subsection
1(c)
of the definition of "distribution" under the Securities
Act
(Ontario) and analogous provisions of the securities laws of such
other
provinces and the restrictions imposed in Section
2.5
of National Instrument 45-102 provided such Common Shares are traded
through Persons registered, if required, under Applicable Securities
Legislation), Borrower covenants that it will make or obtain such
order,
ruling, registration, notice or filing, as the case may
be;
|
|
(i)
|
Borrower
will make all requisite filings under Applicable Securities Legislation
and rules of the Exchange including to report the issue of the
Convertible
Notes and the Common Shares issuable under the Convertible Notes
and the
exercise of the right to acquire Common Shares pursuant to the
Convertible
Notes;
|
|
(j)
|
Borrower
will ensure that the Common Shares outstanding or issuable from
time to
time (including the Common Shares issuable on the conversion of
any
Convertible Note and Conversion Amount) continue to be listed and
posted
for trading on the Toronto Stock
Exchange;
|
|
(k)
|
Borrower
will maintain its status as a reporting issuer, or the equivalent
thereof
in the provinces of Canada where it is, as of the date hereof,
a reporting
issuer, not in default of the requirements of Applicable Securities
Legislation in Canada and will maintain its status as a registrant
under
the United States Securities
Exchange Act
of 1934, as amended, until such time as it deregisters with the
consent of
Requisite Convertible Term Loan Lenders and, for so long as it
remains
registered in the United States, will not be in default of the
requirements of Applicable Securities Legislation in the United
States;
|
|
(l)
|
except
as a result of the failure to file its interim financial statements
for
the fiscal quarter ended September 30, 2006, Borrower would not
be
included on a list of defaulting issuers maintained by the Ontario
Securities Commission or in default of its disclosure
|
-
18
-
|
|
obligations
under Title III of the Securities
Act
(Quebec). Borrower is a registrant under the United States Securities
Exchange Act of 1934,
as amended;
|
|
(m)
|
the
Common Shares are listed and posted for trading on the Toronto
Stock
Exchange;
|
|
(n)
|
the
authorized capital of Borrower consists of an unlimited number
of Common
Shares and an unlimited number of preferred shares, of which 733,393,060
Common Shares are issued and outstanding as of the date hereof
and no
preferred shares are issued and outstanding;
|
|
(o)
|
no
person has any agreement, option, right or privilege with or against
Borrower for the purchase, subscription or issuance of securities,
issued
or unissued of Borrower, other than as disclosed in the Filed Securities
Documents and pursuant to Borrower's employee, director or officer
stock
option or stock compensation plans as same may be amended or replaced
from
time to time;
|
|
(p)
|
upon
a written request from a holder of a Convertible Note that is also
a
potential "United States shareholder" (as that term is defined
in
Section
951(b)
of the Internal Revenue Code of 1986, as amended (the "Code"))
of Borrower, Borrower will use reasonable best efforts to determine
whether it is properly treated as a "controlled foreign corporation"
("CFC")
within the meaning of Section
957
of the Code and to inform such person of its determination. Each
holder of
Convertible Notes or Common Shares acquired upon conversion of
Convertible
Notes shall, on an annual basis, provide to Borrower information
regarding
their ownership of Convertible Notes and Common Shares and generally
cooperate with Borrower so that Borrower can make a determination
as to
its CFC status. If Borrower determines that it is properly treated
as a
CFC in any Fiscal Year, (i) Borrower shall promptly, but in any
case no
later than thirty (30) days after the end of the applicable Fiscal
Year,
notify each requesting Convertible Term Loan Lender described in
the first
sentence of this Section
3.1(p)
of Borrower's CFC status and (ii) Borrower shall, no later than
March 1 of
the following Fiscal Year, provide each such Convertible Term Loan
Lender
holding Common Shares on the last day of such Fiscal Year on which
Borrower was a CFC a written report of the amount of income per
Common
Share required to be included in the gross income of a "United
States
shareholder" pursuant to Section
951(a)
of the Code and shall generally cooperate with any reasonable request
of
such Convertible Term Loan Lender to facilitate such Convertible
Term Loan
Lender's U.S. federal income tax reporting requirements relating
to
Borrower;
|
|
(q)
|
each
of the Filed Securities Documents at the time of filing, (i) was
true and
correct in all material respects, (ii) contained no Misrepresentation
and
(iii) to the extent required to be disclosed under Applicable Securities
Legislation, disclosed all Material Facts and Material Changes
(actual,
anticipated, contemplated or threatened, whether financial or otherwise)
relating to the business, affairs, operations, assets, liabilities
(contingent or otherwise) or capital of Borrower and its Subsidiaries
considered as a whole;
|
|
(r)
|
no
Material Fact or Material Change has been omitted from the Filed
Securities Documents that is required under Applicable Securities
Legislation to be stated therein or
|
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19
-
|
|
is
necessary to make the statements therein not misleading in the
light of
the circumstances in which they were
made;
|
|
(s)
|
Borrower
has complied in all material respects with all Applicable Securities
Legislation and no confidential material change reports have been
filed;
|
|
(t)
|
each
of the consolidated financial statements of Borrower included in
the Filed
Securities Documents filed after December 31, 2005 has
been prepared in accordance with GAAP applied on a consistent basis
during
the period involved (except as may otherwise be indicated in the
notes
thereto or, in the case of unaudited interim financial statements,
as may
be permitted by applicable laws) and fairly presents in all material
respects the consolidated financial position of Borrower as of
the date
thereof and the consolidated results of its operations and cash
flows for
the period then ended (subject, in the case of unaudited interim
financial
statements, to normal year-end audit adjustments and provided that
such
unaudited interim financial statements may omit notes which are
not
required in the unaudited financial
statements);
|
|
(u)
|
except
as disclosed to Convertible Term Loan Lenders in the Disclosure
Letter or
in the Filed Securities Documents on or before the date hereof,
there has
been no Material Change (actual, anticipated, contemplated or threatened,
whether financial or otherwise) in the business, affairs, operations,
assets, liabilities (contingent or otherwise) or capital of Borrower
since
January 23, 2006;
|
|
(v)
|
except
as disclosed to Convertible Term Loan Lenders in the Disclosure
Letter or
in the Filed Securities Documents on or before the date hereof,
each of
Borrower and its Subsidiaries is not in default in the performance
or
observance of any obligation, agreement, covenant or condition
contained
in any contract, indenture, mortgage, loan agreement, note, lease
or other
instrument to which it is a party or by which it may be bound or
to which
any of its property or assets is subject, other than defaults that
in the
aggregate do not have a Material Adverse
Effect;
|
|
(w)
|
no
consent, permit, approval or authorization of any Person (including
all
Governmental Authorities, the Exchange and the CTR Lenders) is
required to
be obtained by Borrower in connection with the transactions contemplated
by this Eighth Amending Agreement, except such as have been obtained
and
delivered to Lenders;
|
|
(x)
|
Borrower
will promptly inform Lenders in writing of the full particulars
of:
|
|
(i)
|
any
Material Change (actual, anticipated, contemplated or threatened,
whether
financial or otherwise) in the business, affairs, operations, assets,
liabilities (contingent or otherwise) or capital of
Borrower;
|
|
(ii)
|
any
change in any Material Fact contained in the Filed Securities Documents
(including any information incorporated or deemed to be incorporated
by
reference therein);
|
|
(y)
|
Borrower
will list the Common Shares issuable on the conversion of any Convertible
Note and Conversion Amount hereunder on the Toronto Stock Exchange
as soon
as possible following such conversion;
|
-
20
-
|
(z)
|
Borrower
will, on or before the Convertible Term Loan Closing Date, enter
into the
Registration Rights Agreements and all documents contemplated by
this
Eighth Amending Agreement;
|
|
(aa)
|
subject
to the holder of the Common Shares issuable upon conversion being
a
“control person”, Section
2.5(2)
of National Instrument 45-102 of the Canadian Securities Administrators,
and other internal controls and policies of Borrower to the extent
such
internal controls and policies of Borrower are specifically binding
on the
applicable holder and otherwise restrict trading, the Common Shares
issuable upon conversion of the Convertible Term Loan Notes will
be freely
tradeable under Applicable Securities Legislation in Canada by
the holder
thereof. Subject to the holder of the Common Shares issuable upon
conversion being a "control person", four (4) months having elapsed
since
the Convertible Term Loan Closing Date and other internal controls
and
policies of Borrower to the extent such internal controls and policies
of
Borrower are specifically binding on the applicable holder and
otherwise
restrict trading, the Common Shares issuable upon conversion of
the
Convertible PIK Notes will be freely tradeable under Applicable
Securities
Legislation in Canada by the holder
thereof;
|
|
(bb)
|
each
of the issuance and delivery of the Common Shares issuable upon
conversion
hereunder is exempt from the prospectus and dealer registration
requirements of Ontario and Quebec securities laws and no other
documentation needs to be filed or consents obtained except for
notice of
the transaction; provided that
Borrower shall file with the Autorite des marches financiers (Quebec)
and
with the securities regulator in each other province where a Convertible
Term Loan Lender is located a report on Form 45-106F1 within ten
(10) days
of the Convertible Term Loan Closing Date; and
|
|
(cc)
|
Borrower
covenants with Convertible Term Loan Lenders that it will at all
times
reserve and keep available out of its authorized Common Shares,
solely for
the purpose of issuance upon conversion of the Conversion Amounts
and
Convertible Notes as herein provided, and conditionally allot to
Convertible Term Loan Lenders who may exercise their conversion
rights
hereunder, such number of Common Shares as shall then be issuable
upon the
conversion of all outstanding Conversion Amounts and Convertible
Notes.
Borrower covenants with Convertible Term Loan Lenders that all
Common
Shares which shall be so issuable shall be duly and validly issued
as
fully-paid and non-assessable
shares.
|
SECTION
4
CONDITIONS
PRECEDENT
4.1 Conditions
Precedent.
This
Eighth Amending Agreement shall not be effective until the following conditions
have been satisfied or provided for in a manner and in form and substance
satisfactory to Requisite Convertible Term Loan Lenders in their sole discretion
or waived in writing by Requisite Convertible Term Loan Lenders in their
sole
discretion:
|
(a)
|
this
Eighth Amending Agreement and all ancillary documents or counterparts
hereof or thereof shall have been duly executed by, and delivered
to,
Borrower, each Agent and
|
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21
-
|
|
Convertible
Term Loan Lenders; and Administrative Agent shall have received
such
documents, resolutions, certificates of officers, instruments,
agreements
and legal opinions as Administrative Agent and Requisite Convertible
Term
Loan Lenders shall request in connection with the transactions
contemplated by this Eighth Amending Agreement and the other
Loan
Documents, including:
|
|
(i)
|
all
those listed in the closing agenda attached hereto as Schedule
B;
|
|
(ii)
|
the
Registration Rights Agreements;
|
|
(iii)
|
a
favourable legal opinion by Fasken Xxxxxxxxx XxXxxxxx LLP (subject
to
assumptions and qualifications as are customary in the circumstances
of
the transactions contemplated hereby) with respect to such matters
as are
customary in the circumstances of the transactions contemplated
hereby
including:
|
|
(A)
|
Borrower
is a corporation incorporated and validly existing under the laws
of
Canada;
|
|
(B)
|
the
authorized capital of Borrower is as described in the Filed Securities
Documents;
|
|
(C)
|
the
attributes of the Common Shares are consistent in all material
respects
with the descriptions thereof in the Filed Securities
Documents;
|
|
(D)
|
Borrower
has the requisite corporate power and authority to perform its
obligations
under the terms of this Eighth Amending Agreement, the Registration
Rights
Agreements and the other Loan
Documents;
|
|
(E)
|
the
Common Shares issuable upon conversion hereunder have been validly
allotted, and, upon conversion hereunder, will be issued as fully
paid and
non-assessable;
|
|
(F)
|
the
execution, delivery and performance of this Eighth Amending Agreement,
the
Registration Rights Agreements and the other Loan Documents have
been duly
authorized and duly executed and delivered by Borrower and each
of this
Eighth Amending Agreement, the Registration Rights Agreements and
the
other Loan Documents is a legally binding obligation of Borrower
enforceable against it in accordance with its terms, subject to
bankruptcy
and insolvency laws and other laws generally affecting the enforceability
of creditors’ rights and the availability of the equitable remedies of
injunction and specific
performance;
|
|
(G)
|
the
Toronto Stock Exchange has conditionally approved the listing of
the
Common Shares issuable upon conversion
hereunder;
|
-
22
-
|
(H)
|
the
execution and delivery of this Eighth Amending Agreement, the Registration
Rights Agreements and the other Loan Documents, the fulfillment
of the
terms hereof and thereof by Borrower and the issue and delivery
on the
Date of Conversion of the Common Shares issuable upon conversion
hereunder
do not and will not result in a breach of any of the terms, conditions
or
provisions of the articles or by-laws of Borrower or any applicable
laws
of the Province of Ontario or
Quebec;
|
|
(I)
|
subject
to the holder of the Common Shares issuable upon conversion being
a
“control person”, Section
2.5(2)
of National Instrument 45-102 of the Canadian Securities Administrators,
and other internal controls and policies of Borrower to the extent
such
internal controls and policies of Borrower are specifically binding
on the
applicable holder and otherwise restrict trading, the Common Shares
issuable upon conversion of the Convertible Term Loan Notes will
be freely
tradeable under Applicable Securities Legislation in Canada by
the holder
thereof. Subject to the holder of the Common Shares issuable upon
conversion being a "control person", four (4) months having elapsed
since
the Convertible Term Loan Closing Date and other internal controls
and
policies of Borrower to the extent such internal controls and policies
of
Borrower are specifically binding on the applicable holder and
otherwise
restrict trading, the Common Shares issuable upon conversion of
the
Convertible PIK Notes will be freely tradeable under Applicable
Securities
Legislation in Canada by the holder
thereof;
|
|
(J)
|
each
of the issuance and delivery of the Common Shares issuable upon
conversion
hereunder is exempt from the prospectus and dealer registration
requirements of Ontario and Quebec securities laws and no other
documentation needs to be filed or consents obtained except for
notice of
the transaction; provided that
Borrower shall file with the Autorite des marches financiers (Quebec)
and
with the securities regulator in each other province where a Convertible
Term Loan Lender is located a report on Form 45-106F1 within ten
(10) days
of the Convertible Term Loan Closing
Date;
|
|
(K)
|
no
consent, permit, approval or authorization of (i) any Governmental
Authority having jurisdiction in the Provinces of Quebec and Ontario,
(ii)
the CTR Lenders, (iii) the Trustees and the Convertible Debentureholders
or (iv) HSBC Bank Canada, is required to be obtained by Borrower
in
connection with the transactions contemplated by this Eighth Amending
Agreement, except such as have been obtained and delivered to Lenders;
and
|
-
23
-
|
(L)
|
upon
any person becoming a Lender under the Credit Agreement, and subject
to
the "Grantor" under the bond pledge agreement entered into as of
May 12,
2005 (the "Pledge
Agreement")
between Borrower, Agents and the Pledgees (as defined in the Pledge
Agreement) confirming, at the time, the pledge of the Bond (as
defined in
the Pledge Agreement) under the Pledge Agreement in favour of such
Lender
as security for the Obligations (as defined in the Pledge Agreement),
the
hypothec created under Clause 2.1 of the Pledge Agreement shall
benefit
such Lender;
|
|
(b)
|
all
requisite corporate actions and proceedings in connection with
this Eighth
Amending Agreement shall have been
completed;
|
|
(c)
|
Borrower
shall have paid the fees required to be paid on the Convertible
Term Loan
Closing Date (including the up-front commitment fee in Section
4.1(h)
below) and shall have reimbursed Agents and Convertible Term Loan
Lenders
for all fees, costs and expenses of closing (including fees of
legal
counsel) presented as of the Convertible Term Loan Closing
Date;
|
|
(d)
|
all
representations or warranties by Borrower or its Subsidiaries contained
herein or in any of the other Loan Documents shall be true and
correct as
of the Convertible Term Loan Closing Date and after giving effect
to the
transactions contemplated by this Eighth Amending Agreement, except
to the
extent that such representations or warranties expressly relate
to an
earlier date and for changes therein expressly permitted or expressly
contemplated by this Eighth Amending Agreement including any changes
set
forth in the Disclosure Letter;
|
|
(e)
|
no
event or circumstance having a Material Adverse Effect shall have
occurred
or be continuing or would result after giving effect to the transactions
contemplated by this Eighth Amending
Agreement;
|
|
(f)
|
no
Default or Event of Default shall have occurred or be continuing
or would
result after giving effect to the transactions contemplated by
this Eighth
Amending Agreement;
|
|
(g)
|
Lenders
shall have received evidence that Borrower has obtained all necessary
and
required consents, permits, approvals and authorizations of all
Persons
(including all Governmental Authorities, the Exchange and the CTR
Lenders)
in connection with the transactions contemplated by this Eighth
Amending
Agreement;
|
|
(h)
|
Borrower
shall pay Administrative Agent, for the ratable benefit of Convertible
Term Loan Lenders, an up-front commitment fee of Cdn$400,000, such
amount
being two percent (2%) of the principal amount of the Convertible
Term
Loan (Cdn$20,000,000), on the Convertible Term Loan Closing Date.
This
up-front commitment fee shall be fully earned on the Convertible
Term Loan
Closing Date and shall be non-refundable when
paid;
|
|
(i)
|
there
shall not have developed, occurred or come into effect or existence
any
catastrophe, crisis or accident of national or international consequence,
any law or regulation or any other event, action or occurrence
of any
nature whatsoever, including any outbreak of
|
-
24
-
|
|
of
war, rebellion or armed hostilities which, in the opinion of
Requisite
Convertible Term Loan Lenders, acting reasonably, materially
and adversely
affects or may materially and adversely affect the financial
markets
generally or the business of Borrower and its Subsidiaries (on
a
consolidated basis); and
|
|
(j)
|
no
order or ruling is issued, and no inquiry, investigation or other
proceeding (whether formal or informal) in relation to Borrower
or its
respective directors or officers is made, threatened or announced
by any
officer or official of any stock exchange, securities commission
or other
regulatory authority, or pursuant to any law or regulation promulgated
or
changed which, in the opinion of Requisite Convertible Term Loan
Lenders,
acting reasonably, operates to prevent or restrict trading in or
of the
Common Shares, other than a cease trade order affecting Borrower's
directors, officers and other insiders issued by the Autorite des
marches
financiers (Quebec) following the request of Borrower pursuant
to Notice
57-303 of the Canadian Securities
Administrators.
|
SECTION
5
SUBORDINATION
5.1 Subordination
Subject
to Section
5.2
hereof, each of Borrower and Convertible Term Loan Lenders hereby agrees
and
confirms that all Obligations at any time owing by Borrower to Convertible
Term
Loan Lenders with respect to the Convertible Term Loan (collectively, the
"Convertible
Term Loan Obligations")
and all Liens granted pursuant to the Collateral Documents in favour of
Collateral Agent, on behalf of Convertible Term Loan Lenders, to secure all
or
any part of the Convertible Term Loan Obligations are hereby deferred, postponed
and subordinated in all respects by Convertible Term Loan Lenders to the
prior
repayment in full by Borrower of all Obligations at any time owing by Borrower
to Revolving Lenders with respect to the Revolving Loan and Term Loan
(collectively, the "Revolving
Loan Obligations")
and Liens granted pursuant to the Collateral Documents in favour of Collateral
Agent, on behalf of Revolving Lenders, to secure all or any part of the
Revolving Loan Obligations.
5.2
Payments
of Cash Pay Interest
Notwithstanding
Section
5.1
hereof, Borrower shall make, and each Convertible Term Loan Lender may accept,
regularly scheduled cash payments of Cash Pay Interest to Convertible Term
Loan
Lenders with respect to the Convertible Term Loan in accordance with
Section
1.4
of the Credit Agreement; provided that
such regularly scheduled cash payments of Cash Pay Interest shall be suspended
(but shall continue to accrue) if directed in writing to Borrower by Requisite
Lenders upon the occurrence and continuance of an Event of Default; provided further that,
in the event that the applicable Event of Default is cured or waived in
accordance with the terms of the Credit Agreement, such cash payment suspension
shall cease and all such accrued but unpaid Cash Pay Interest shall be paid
in
cash to Administrative Agent on the next Interest Payment Date
-
25
-
5.3 Reorganization
Securities
If,
in any case or proceeding in respect of bankruptcy, insolvency, winding-up,
receivership, dissolution, or assignment for the benefit of creditors under
any
Insolvency Law in any jurisdiction with respect to Borrower or any of its
properties, debt instruments or securities of a reorganized Borrower secured
by
Liens upon any property of a reorganized Borrower are distributed pursuant
to a
plan of reorganization or similar dispositive restructuring plan, both on
account of Convertible Term Loan Obligations and Revolving Loan Obligations,
then, to the extent the debt instruments or securities distributed on account
of
the Convertible Term Loan Obligations and on account of the Revolving Loan
Obligations are secured by Liens upon the same property, Convertible Term
Loan
Lenders may receive and retain such debt instruments and securities distributed,
such debt instruments and securities distributed shall be deemed to evidence
Convertible Term Loan Obligations for purposes of this Eighth Amending Agreement
and the provisions of this Section
5
will apply until payment in full of the Revolving Loan Obligations.
SECTION
6
GENERAL
|
6.1
|
To
be Read with Credit
Agreement
|
This
Eighth Amending Agreement is an amendment to the Credit Agreement. Unless
the
context otherwise requires, the Credit Agreement, the Amending Agreements
and
this Eighth Amending Agreement shall be read together and shall have effect
as
if the provisions of the Credit Agreement, the Amending Agreements and this
Eighth Amending Agreement were contained in one agreement. The term
"Agreement"
when used in the Credit Agreement means the Credit Agreement as amended by
the
Amending Agreements and this Eighth Amending Agreement together with all
amendments, supplements, restatements, replacements and novations thereof
from
time to time.
|
6.2
|
Effect
of this Eighth Amending
Agreement
|
Except
as modified pursuant to the Amending Agreements and this Eighth Amending
Agreement, no other changes or modifications to the Credit Agreement or the
other Loan Documents are intended or implied and in all other respects the
Credit Agreement and the other Loan Documents are hereby specifically ratified,
restated, and confirmed by the parties hereto as of the effective date hereof.
|
6.3
|
Continuance
of Credit Agreement and
Security
|
The
Credit Agreement and the other Loan Documents, as changed, altered, amended
or
modified by the Amending Agreements and this Eighth Amending Agreement, shall
be
and continue in full force and effect and are hereby confirmed and the rights
and obligations of all parties thereunder shall not be affected or prejudiced
in
any manner except as specifically provided for in the Amending Agreements
and
this Eighth Amending Agreement. It is agreed and confirmed that after giving
effect to this Eighth Amending Agreement, all security delivered by Borrower
in
favour of Agents and Lenders secures the payment of all of the Obligations
including the Convertible Term Loan Obligations and the obligations arising
under the Credit
-
26
-
Agreement,
as amended by the terms of the Amending
Agreements and this Eighth Amending Agreement.
|
6.4
|
No
Novation
|
Nothing
in this Eighth Amending Agreement, nor in the Credit Agreement or the Loan
Documents when read together with the Amending Agreements and this Eighth
Amending Agreement, shall constitute a novation, payment, re-advance or
reduction or termination in respect of any Obligations.
|
6.5
|
Costs
and Expenses
|
Borrower
agrees to pay on demand all costs and expenses of Agents and Convertible
Term
Loan Lenders including out-of-pocket legal fees (i) in connection with the
preparation, negotiation, completion, execution, delivery and review of this
Eighth Amending Agreement and the other documents contemplated hereunder
and
(ii) in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Eighth Amending Agreement and the other
documents contemplated hereunder, whether or not any of such transactions
is
consummated.
|
6.6
|
Further
Assurances
|
The
parties hereto shall execute and deliver such supplemental documents and
take
such supplemental action as may be necessary or desirable to give effect
to the
provisions and purposes of this Eighth Amending Agreement, all at the expense
of
Borrower.
|
6.7
|
Binding
Effect
|
This
Eighth Amending Agreement shall be binding upon and enure to the benefit
of each
of the parties hereto and their respective successors and permitted assigns
under the Credit Agreement.
|
6.8
|
Execution
in Counterparts
|
This
Eighth Amending Agreement may be executed in any number of separate facsimile
or
original counterparts, each of which shall collectively and separately
constitute one agreement.
|
6.9
|
Restructuring
Intercreditor Agreement
|
This
Eighth Amending Agreement is subject to the terms and conditions of the
Restructuring Intercreditor Agreement.
|
6.10
|
Severability
|
Wherever
possible, each provision of this Eighth Amending Agreement shall be interpreted
in such a manner as to be effective and valid under applicable law, but if
any
provision of this Eighth Amending Agreement shall be prohibited by or invalid
under applicable
-
27
-
law,
such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement
[Signature
Page Follows]
-
28
-
IN
WITNESS WHEREOF,
this Eighth Amending Agreement has been duly executed as of the date first
written above.
|
BORROWER:
|
|
|
By:
|
(s)
Xxxxx Xxxxxx
|
|
Name:
Title:
|
Xxxxx
Xxxxxx
President
&CEO
|
|
|
|
|
By:
|
(s)
Xxxx Xxxxxx
|
|
Name:
Title:
|
Xxxx Xxxxxx
Senior Vice-President Finance & CFO
|
-
29
-
|
ADMINISTRATIVE
AGENT AND COLLATERAL AGENT:
BNY
TRUST COMPANY OF CANADA
|
|
|
By:
|
(s)
Xxxxx Xxxxxxxx XX
|
|
Name:
Title:
|
Xxxxx
Xxxxxxxx XX
Authorized
Signatory
|
|
|
|
|
By:
|
|
|
Name:
Title:
|
|
-
30
-
|
CONVERTIBLE
TERM LOAN LENDER:
B
IV CAPITAL PARTNERS, L.P.
By:
GP Capital IV, LLC, its General Partner
By:
DDJ Capital Management, LLC,
Manager
|
|
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx Xx.
|
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
|
|
|
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
|
Name:
Title:
|
Xxxxxxx X. Xxxxx
Authorized Signatory
|
|
Address:
DDJ
Capital Management, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Attention: Xxxx
Xxxxxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire
Details:
Bank Name: XX Xxxxxx Xxxxx Bank, NY ABA#: 000000000
F/A/O: Xxxxxxx
Sachs & Co., N.Y.
A/C#: 000-0-000000
F/F/C: B
IV Capital Partners LP
A/C#: 002-091726
|
|
-
31
-
|
CONVERTIBLE
TERM LOAN LENDER:
GMAM
INVESTMENT FUNDS TRUST II,
for
the account of Promark Alternative
High
Yield Bond Fund
(Account
No. 7M2E)
By:
DDJ Capital Management, LLC,
on
behalf of GMAM Investment Funds Trust II,
for
the account of Promark
Alternative
High Yield Bond Fund,
in
its capacity as investment manager
|
|
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx Xx.
|
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
|
|
|
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
|
Name:
Title:
|
Xxxxxxx X. Xxxxx
Authorized Signatory
|
|
Address:
DDJ
Capital Management, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Attention: Xxxx
Xxxxxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire
Details:
Bank
Name: Xxxxx
Xxxxxx Xxxx & Xxxxx Xx., Xxxxxx
ABA#:
011
000 028
Ref: GMAM
Investment Funds Trust II
A/C#:
7M2E
DDA#: 26572875
|
|
-
32
-
|
CONVERTIBLE
TERM LOAN LENDER:
GMAM
INVESTMENT FUNDS TRUST II,
for
the account of Promark High Yield Bond Fund
(Account
No. 7MWD)
By:
DDJ Capital Management, LLC,
on
behalf of GMAM Investment Funds Trust II,
for
the account of Promark
High
Yield Bond Fund,
in
its capacity as investment manager
|
|
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx Xx.
|
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
|
|
|
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
|
Name:
Title:
|
Xxxxxxx X. Xxxxx
Authorized Signatory
|
|
Address:
DDJ
Capital Management, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Attention: Xxxx
Xxxxxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire
Details:
Bank
Name: Xxxxx
Xxxxxx Xxxx & Xxxxx Xx., Xxxxxx
ABA#: 011
000 028
Ref: GMAM
Investment Funds Trust II
Ref#:
7MWD
Account#: 00000000
|
|
-
33
-
|
CONVERTIBLE
TERM LOAN LENDER:
DDJ
OCTOBER FUND ONSHORE
FEEDER,
LIMITED PARTNERSHIP
By:
October G.P., LLC,
its
general partner
By:
DDJ Capital Management, LLC,
its
Manager
|
|
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx Xx.
|
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
|
|
|
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
|
Name:
Title:
|
Xxxxxxx X. Xxxxx
Authorized Signatory
|
|
Address:
DDJ
Capital Management, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Attention: Xxxx
Xxxxxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire
Details:
Bank
Name: Citibank,
N.A. New York
ABA#: 000000000
Account: Xxxxxx
Xxxxxxx & Co., NY
Account
No: 00000000
Subaccount:
Account
Name:
DDJ
October Fund
Onshore Feeder,
Limited
Partnership
Account
No: 038C4323
|
|
-
34
-
|
CONVERTIBLE
TERM LOAN LENDER:
DDJ/ONTARIO
OS INVESTMENT SUB 2006 LTD.
By:
DDJ Capital Management, LLC,
in
its capacity as Investment Manager
|
|
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx Xx.
|
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
|
|
|
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
|
Name:
Title:
|
Xxxxxxx X. Xxxxx
Authorized Signatory
|
|
Address:
DDJ
Capital Management, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Attention: Xxxx
Xxxxxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire
Details:
Bank
Name: Citibank
ABA#: 000-000-000
A/CA#:
09253186
FBO: DDJ/Ontario
OS Investment Sub 2006 Ltd.
A/C#: 102-34138
|
|
-
35
-
|
CONVERTIBLE
TERM LOAN LENDER:
OCTOBER
OS INVESTMENT SUB 2006, LTD.
By:
DDJ Capital Management, LLC,
in
its capacity as Investment Manager
|
|
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx Xx.
|
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
|
|
|
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
|
Name:
Title:
|
Xxxxxxx X. Xxxxx
Authorized Signatory
|
|
Address:
DDJ
Capital Management, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
XX 00000
Attention: Xxxxxxx
Xxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Attention: Xxxx
Xxxxxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire
Details:
Bank
Name: Citibank,
N.A. New York
ABA#:
00-000-000
F/A/O: Xxxxxx
Xxxxxxx & Co., NY
A/C#: 38890774
F/F/C: October
OS Investment Sub 2006, Ltd.
A/C#:
038-C9640
|
|
-
36
-
|
CONVERTIBLE
TERM LOAN LENDER:
GREYWOLF
LOAN PARTICIPATION LLC
|
|
|
By:
|
(s)
Xxx Xxxxxxxxx
|
|
Name:
Title:
|
Xxx
Xxxxxxxxx
Authorized
Signatory
|
|
|
|
|
By:
|
(s)
Xxxxxxxx Xxxx
|
|
Name:
Title:
|
Xxxxxxxx Xxxx
Authorized Signatory
|
|
Address:
0
Xxxxxxxxxxxxxx Xxxx
Xxx
Xxxx, XX
00000
Attention: Xxxx
Xxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire Details: US$
Fed Wire Instructions
Name: Chase
Manhattan Bank, N.Y.
ABA#:
000-000-000
F/A/O: Xxxxxxx
Xxxxx
& Co., N.Y.
A/C#:
000-0-000000
F/F/C:
Greywolf Loan Participation LLC
A/C#:
002-034155
|
|
-
37
-
|
CONVERTIBLE
TERM LOAN LENDER:
POLAR
SECURITIES INC.,
on
behalf of North Pole Capital Master
Fund
|
|
|
By:
|
(s)
Xxxxxx Xxxxxxxx
|
|
Name:
Title:
|
Xxxxxx
Xxxxxxxx
CEO
& President
|
|
|
|
|
By:
|
(s)
Xxxxx Xxxxxxx
|
|
Name:
Title:
|
Xxxxx
Xxxxxxx
Vice-President
|
|
Address:
000
Xxx Xxxxxx, 00xx
Xxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Xxx
Xxxxxxxx
Telecopier
No.: (000)
000-0000
Telephone
No.: (000)
000-0000
Wire
Details:
Cdn$
Wire Transactions:
Swift
Code: XXXXXXX0
Bank
Name: Bank
of Montreal
City: Montreal
Beneficiary:
00021157410
Xxxxxxx Xxxxx Inc.,
Toronto, Ontario
Sub
Account:
000-00000-00
US$
Wire Transactions:
Bank
Name: Bank
of New York
Address:
00
Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
ABA
Number:
000-000-000
AC
Number: 0000-000-000
Sub
Account:
000-00000-00
|
|
-
38
-
|
CONVERTIBLE
TERM LOAN LENDER:
XXXXXX
XXXXXXX & CO. INTERNATIONAL LIMITED
|
|
|
By:
|
(s)
Xxxx Xxxxxxxx
|
|
Name:
Title:
|
Xxxx
Xxxxxxxx
Managing
Director
|
|
Address:
00
Xxxxx Xxxxxx
Xxxxxx,
X00 0XX
Attention: Xxxxxxxxx
Xxxxxx
Telecopier
No: 0000
000 0000
Telephone: 0207
677 4608
Wire
Details:
XX
Xxxxxx Xxxxx NY
ABA
000000000
SWIFT
XXXXXX00
XX
Xxxxxx Chase London
SWIFT
XXXXXX0X
A/C
00000000
Xxxxxx
Xxxxxxx and Co, International Ltd
|
|
-
39
-
| Commitment: |
GMAM
INVESTMENT FUNDS TRUST II
SIGNATURE
PAGE TO THE CREDIT
AGREEMENT:
|
||
| US$430,860.10 |
GMAM INVESTMENT FUNDS TRUST
II,
for the account of the Promark
Alternative High Yield Bond
Fund
(Account No. 7M2E)
By:
DDJ Capital Management, LLC,
on
behalf of GMAM Investment Funds Trust II,
for
the account of Promark
Alternative
High Yield Bond Fund,
in
its capacity as investment manager
|
||
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx,
Xx.
|
||
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
||
|
|
|||
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
||
|
Name:
Title:
|
Xxxxxxx
X. Xxxxx
Authorized
Signatory
|
||
|
Account
Wire Details:
Xxxxx
Xxxxxx Xxxx & Xxxxx Xx., Xxxxxx
XXX
#000 000 028
Ref:
GMAM Investment Funds Trust II
Account
Number: 7M2E
DDA#
26572875
|
|||
-
40
-
| Commitment: |
GMAM
INVESTMENT FUNDS TRUST II
SIGNATURE
PAGE TO THE CREDIT AGREEMENT:
|
||
|
US$352,521.90
|
GMAM
INVESTMENT FUNDS TRUST II,
for
the account of the Promark
High
Yield Bond Fund
(Account
No. 7MWD)
By:
DDJ Capital Management, LLC,
on
behalf of GMAM Investment Funds Trust II,
for
the account of Promark
High
Yield Bond Fund,
in
its capacity as investment manager
|
||
|
By:
|
(s)
Xxxxx X. Xxxxxxxxxx,
Xx.
|
||
|
Name:
Title:
|
Xxxxx
X. Xxxxxxxxxx, Xx.
Authorized
Signatory
|
||
|
|
|||
|
By:
|
(s)
Xxxxxxx X. Xxxxx
|
||
|
Name:
Title:
|
Xxxxxxx
X. Xxxxx
Authorized
Signatory
|
||
|
Account
Wire Details:
Xxxxx
Xxxxxx Xxxx & Xxxxx Xx.
Xxxxxx,
XX
ABA#:
011 000 028
Account
Title: GMAM Investment Funds Trust II
Account#:
00000000
Ref#:
7MWD
|
|||
-
41
-
Schedule
1.1(4)(a)
Convertible
Term Loan Lenders Share of Convertible Term Loan
|
Convertible
Term Loan Lender
|
Share
of Convertible Term Loan
|
|
|
B
IV Capital Partners, L.P.
|
Cdn$7,163,828.15
|
|
|
GMAM
Investment Funds Trust II, for the account of the Promark Alternative
High
Yield Bond Fund (Account No. 7M2E)
|
Cdn$300,827.55
|
|
|
GMAM
Investment Funds Trust II, for the account of the Promark High
Yield Bond
Fund (Account No. 7MWD)
|
Cdn$386,226.90
|
|
|
DDJ/Ontario
OS Investment Sub 2006 Ltd.
|
Cdn$1,265,123.20
|
|
|
DDJ
October Fund Onshore Feeder, Limited Partnership
|
Cdn$603,403.88
|
|
|
October
OS Investment Sub 2006, Ltd.
|
Cdn$445,682.18
|
|
|
Greywolf
Loan Participation LLC
|
Cdn$5,273,972.32
|
|
|
Polar
Securities Inc.
|
Cdn$883,377.59
|
|
|
Xxxxxx
Xxxxxxx & Co. International Limited
|
Cdn$3,677,558.23
|
|
|
Total
Convertible Term Loan =
|
Cdn$20,000,000.00
|
Exhibit
1.1(4)(a)
Form
of Notice of Convertible Term Loan Advance
|
TO:
|
BNY
Trust Company of Canada ("BNY"),
as Administrative Agent
|
|
AND
TO:
|
Convertible
Term Loan Lenders as defined in the Credit Agreement (as herein
defined)
|
|
RE:
|
Convertible
Term Loan to be made pursuant to the Credit Agreement dated as
of May 19,
2005 between SR Telecom Inc., as Borrower, BNY, as Administrative
Agent
and Collateral Agent, and Lenders named therein, as amended,
restated,
modified or supplemented from time to time (the "Credit
Agreement")
|
|
AND
RE:
|
Eighth
Amendment to Credit Agreement dated December ___, 2006 (the "Eighth
Amending Agreement")
between SR Telecom Inc., as Borrower, BNY, as Administrative
Agent and
Collateral Agent, and Lenders named
herein
|
|
1.
|
All
capitalized terms not otherwise defined in this Notice of Convertible
Term
Loan Advance shall have the meanings given to them in the Credit
Agreement.
|
|
2.
|
The
undersigned, as Borrower pursuant to the Credit Agreement, irrevocably
requests that Convertible Term Loan Lenders make available to Borrower
the
Convertible Term Loan on December ___, 2006 in the aggregate amount
of
Cdn$20,000,000 to:
|
|
Borrower:
|
|
|
Address:
|
[•]
Fax
No: [•]
Phone
No: [•]
|
|
Bank:
|
[•]
|
|
Bank
Address:
|
[•]
Attention:
[•]
Fax
No: [•]
Phone
No: [•]
|
|
Wire
Details:
|
Bank
No.: [•]
Transit
No.: [•]
CDN$
Account No.: [•]
|
|
3.
|
The
undersigned, as Borrower pursuant to the Credit Agreement,
hereby:
|
|
(a)
|
represents
and warrants that all of the conditions contained in Section
4.1
of the Eighth Amending Agreement have been satisfied on and as
of the date
hereof, and will continue to be satisfied on and as of the date
of the
advance (the "Advance")
of the Convertible Term Loan requested hereby, before and after
giving
effect thereto and to the application of the
Advance;
|
|
(b)
|
reaffirms
the continuation of Collateral Agent's valid and perfected first
priority
Liens pursuant to the Collateral Documents;
and
|
|
(c)
|
represents
and warrants, both before and after giving effect to the Advance
and to
the application of the Advance, no Default or Event of Default
has
occurred or is continuing.
|
DATED
as of the December ___, 2006.
| By: | |
|
Name:
Title:
|
|
| By: | |
|
Name:
Title:
|
|
-
2
-
Exhibit
1.1(4)(b)
Form
of Convertible Term Loan Note
Unless
permitted under Applicable Securities Legislation, the holder of this security
must not trade the security before [four
(4) months and a day after the Convertible Term Loan Closing
Date].
[NTD:
Specific date to be inserted.]
Xxxxxxx,
Xxxxxxx
[Date]
Cdn$[•]
FOR
VALUE RECEIVED, the undersigned, SR Telecom Inc., a Canadian corporation
("Borrower"),
HEREBY PROMISES TO PAY to the order of [NAME
OF CONVERTIBLE TERM LOAN LENDER]
("Convertible
Term Loan Lender")
at the offices of Convertible Term Loan Lender, at its address at [•],
or at such other place as Convertible Term Loan Lender may designate from
time
to time in writing, in lawful money of Canada and in immediately available
funds, the amount of [•]
(Cdn$[•]),
or if less, the aggregate unpaid
amount of its Convertible Term Loan Advance made to the undersigned and
evidenced hereby or in the Loan Accounts. All capitalized terms used but
not
otherwise defined herein have the meanings given to them in the Credit Agreement
(as herein defined) or in Annex
A
thereto.
This
Convertible Term Loan Note (the "Note")
is issued pursuant to the Credit Agreement dated as of May 19, 2005 between
Borrower, BNY Trust Company of Canada, as Administrative Agent and Collateral
Agent, and the Lenders named therein, as the same may be amended, restated,
modified or supplemented from time to time (the "Credit
Agreement"),
and is entitled to the benefit and security of the Credit Agreement, the
Collateral Documents and all of the other Loan Documents referred to therein.
Reference is hereby made to the Credit Agreement for a statement of all of
the
terms and conditions under which the Convertible Term Loan Advance and
Convertible Term Loan evidenced hereby or in the Loan Accounts is made, is
to be
repaid and may be converted into Common Shares of Borrower. The principal
balance of the Convertible Term Loan Advance and Convertible Term Loan, the
rates of interest applicable thereto and the date and amount of each payment
made on account of the principal thereof, shall be recorded by Administrative
Agent in the Loan Accounts maintained in respect of the Convertible Term
Loan;
provided
that
the failure of Administrative Agent to make any such recordation shall not
affect the obligations of Borrower to make a payment when due of any amount
owing under the Credit Agreement or this Note.
The
principal amount of the indebtedness evidenced hereby shall be payable in
the
amounts and on the dates specified in the Credit Agreement. Interest thereon
shall be paid until such principal amount is paid in full at such interest
rates
and at such times, and pursuant to such calculations, as are specified in
the
Credit Agreement. The terms of the Credit Agreement are hereby incorporated
herein by reference including, without limitation, the conversion option
of this
Note into Common Shares of Borrower pursuant to Section
1.1(5)
of the Credit Agreement.
If
any payment on this Note becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business
Day
and, with respect to payments of principal, interest thereon shall be payable
at
the then applicable rate during such extension.
Upon
and after the occurrence of any Event of Default, this Note may, as provided
in
the Credit Agreement, and without demand, notice or legal process of any
kind,
be declared, and immediately shall become, due and payable.
Time
is of the essence in this Note. Demand, presentment, protest and notice of
nonpayment and protest are hereby waived by Borrower.
Except
as provided in the Credit Agreement, this Note may not be assigned by
Convertible Term Loan Lender to any Person.
THIS
NOTE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE
OF ONTARIO APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT
PROVINCE.
Exhibit
1.1(7)(a)
Conversion
Form
The
undersigned owner of a Convertible Term Loan Note and Convertible PIK Note,
as
the case may be, (collectively, the "Notes")
issued by SR Telecom Inc. ("Borrower") hereby
irrevocably exercises its option to convert the Notes and accrued and unpaid
interest thereon into fully paid and non-assessable Common Shares in accordance
with the terms of the credit agreement dated as of May 19, 2005 between
Borrower, BNY Trust Company of Canada, as Administrative Agent and Collateral
Agent, and the lenders party thereto, as amended, restated, modified or
supplemented from time to time and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for fractional
shares, be issued in the name of and delivered to the undersigned registered
holder of the Notes, unless a different name has been indicated in the
assignment below. If shares are to be issued in the name of a person other
than
the undersigned, the undersigned will pay all transfer taxes payable with
respect thereto. Any amount required to be paid by the undersigned on account
of
such transfer accompanies this Conversion Notice.
Dated:_______________________
Amount
of Notes and accrued and unpaid interest thereon to be converted:
Cdn$_________________________
|
Signature
(for conversion only)
|
|
If
the Common Shares are to be issued and registered otherwise than
to the
undersigned, please print or typewrite name and address, including
postal
code/zip code, and social security, social insurance or other taxpayer
identification number.
|
|
|
|
|
|
|
Schedule
A
Definitions
Advances
means
collectively Revolving Credit Advances, PIK Advances and Convertible Term
Loan
Advances.
Applicable
Securities Legislation
means applicable securities laws (including rules, regulations, policies
and
instruments) in each of the provinces of Canada and in the United
States.
Board
of Directors
means the board of directors of Borrower or, if duly constituted and whenever
duly empowered, the executive committee of the Board of Directors of Borrower,
and reference to action by the directors means action by the directors of
Borrower as a board or action by the said executive committee as such
committee.
Common
Shares
means the common shares in the capital of Borrower and Common
Share
means any one of them; provided that
in the event of a change or a subdivision, redivision, reduction, combination
or
consolidation thereof, or successive such changes, subdivisions, redivisions,
reductions, combinations or consolidations then, subject to adjustments,
if any,
having been made in accordance with the provisions of Section
1.1(8),
Common
Shares
shall thereafter mean the shares resulting from such change, subdivision,
redivision, reduction, combination or consolidation and Common
Share
means any one of them.
Conversion
Amount
shall have the meaning assigned to it in Section
1.1(5).
Conversion
Form
means the conversion form substantially in the form of Exhibit
1.1(7)(a).
Conversion
Price
means Cdn$0.17 as the same may be adjusted from time to time in accordance
with
Section
1.1(8).
Convertible
Debentureholders
shall have the meaning assigned to it in the Restructuring Intercreditor
Agreement.
Convertible
Note
means either or both of a Convertible Term Loan Note or a Convertible PIK
Note.
Convertible
PIK Note
shall have the meaning assigned to it in Section
1.4(3).
Convertible
Pro Rata Share
means the percentage obtained by dividing (i) the aggregate outstanding
principal balance of the Convertible Term Loan held by that Convertible Term
Loan Lender by (ii) the aggregate outstanding principal balance of the
Convertible Term Loan held by all Convertible Term Loan Lenders.
Convertible
Term Loan means
the convertible term loan to be advanced to Borrower by Convertible Term
Loan
Lenders on the Convertible Term Loan Closing Date in the aggregate amount
of
Cdn$20,000,000 and in accordance with Section
1.1(4).
Convertible
Term Loan Advance
shall have the meaning assigned to it in Section
1.1(4).
Convertible
Term Loan Closing Date
means December ___, 2006 or
such later date as Borrower and Convertible Term Loan Lenders may agree in
writing.
Convertible
Term Loan Commitment Termination Date
means the earliest of (a) the Convertible Term Loan Maturity Date, (b) the
date
of termination of each Lender's obligation to make further Advances or permit
existing Loans to remain outstanding in each case pursuant to Section
8.2(2)
and (c) the Termination Date.
Convertible
Term Loan Lenders
means:
|
(a)
|
B
IV Capital Partners, L.P.;
|
|
(b)
|
GMAM
Investment Funds Trust II, for the account of the Promark Alternative
High
Yield Bond Fund (Account No. 7M2E);
|
|
(c)
|
GMAM
Investment Funds Trust II, for the account of the Promark High
Yield Bond
Fund (Account No. 7MWD);
|
|
(d)
|
DDJ/Ontario
OS Investment Sub 2006 Ltd.;
|
|
(e)
|
DDJ
October Fund Onshore Feeder, Limited
Partnership;
|
|
(f)
|
October
OS Investment Sub 2006, Ltd.;
|
|
(g)
|
Greywolf
Loan Participation LLC;
|
|
(h)
|
Polar
Securities Inc.;
|
|
(i)
|
Xxxxxx
Xxxxxxx & Co. International
Limited,
|
and
their permitted successors and assigns from time to time and Convertible
Term Loan Lender
means any one of them.
Convertible
Term Loan Maturity Date means
the fifth (5th)
anniversary of one (1) day after the Convertible Term Loan Closing Date.
Convertible
Term Loan Note
shall have the meaning assigned to it in Section
1.1(4)(b).
Convertible
Term Loan Payout Fee
shall have the meaning assigned to it in Section
1.8(1)(d).
CTR
Lenders
shall have the meaning assigned to it in the Restructuring Intercreditor
Agreement.
Current
Market Price
shall have the meaning assigned to it in Section
1.1(8)(d).
Date
of Conversion
shall have the meaning assigned to it in Section
1.1(7)(b).
-
2
-
Disclosure
Letter
means the disclosure letter dated the date hereof executed by Borrower and
delivered to Lenders.
Exchange
means (i) the Toronto Stock Exchange, (ii) the NASDAQ National Market, and
(iii)
any other exchange or market on which the Common Shares are quoted or listed
for
trading.
Filed
Securities Documents
means any documents filed from time to time under Applicable Securities
Legislation under Borrower's name on SEDAR or under U.S. Securities Laws
under
Borrower's name on XXXXX.
Lenders
means the Revolving Lenders; and after the Convertible Term Loan Closing
Date,
Lenders
means the Revolving Lenders and the Convertible Term Loan Lenders and their
permitted successors and assigns and Lender
means any one of them.
Loans
means the Revolving Loan and the PIK Loan to but not including the Term-Out
Date; from and including the Term-Out Date to but not including the Convertible
Term Loan Closing Date, Loans
means the Term Loan and the PIK Loan; and on and after the Convertible Term
Loan
Closing Date, Loans
means the Term Loan, the PIK Loan and the Convertible Term Loan (until converted
in accordance with the terms of this Agreement).
Material
Fact
means a material fact for purposes of any Applicable Securities
Legislation.
Material
Change
means a material change for purposes of any Applicable Securities
Legislation.
Misrepresentation
means a misrepresentation for purposes of any Applicable Securities
Legislation.
Notes
means collectively the Revolving Notes, the PIK Notes and the Convertible
Term
Loan Notes and Note
means any one of them.
Notice
of Convertible Term Loan Advance
shall have the meaning assigned to it in Section
1.1(4)(a).
Officers'
Certificate
means a certificate of Borrower made pursuant to this Agreement signed by
two
(2) officers of Borrower, one (1) of whom must be the President or the Chief
Financial Officer of Borrower, each in his capacity as an officer of
Borrower.
PIK
Note
shall have the meaning assigned to it in Section
1.4(2)(a)
and shall include each Convertible PIK Note, if any.
Pro
Rata Share
means the percentage obtained by dividing (i) the aggregate outstanding
principal balance of the Loans held by that Lender by (ii) the aggregate
outstanding principal balance of the Loans held by all Lenders.
-
3
-
Registration
Rights Agreements
means, collectively, a Canadian Registration Rights Agreement and a U.S.
Registration Rights Agreement in form and substance satisfactory to Requisite
Convertible Term Loan Lenders in their sole discretion.
Requisite
Convertible Term Loan Lenders
means Convertible Term Loan Lenders having more than 66 ⅔% of the aggregate
outstanding amount of the Convertible Term Loan.
Revolving
Lenders
means the lenders identified as "Lender" on the execution pages of the Credit
Agreement dated May 19, 2005 (unamended) in respect of the Revolving Loan
and
Term Loan and their permitted successors and assigns from time to time and
Revolving
Lender
means any one of them.
Revolving
Pro Rata Share
means:
(a) prior
to the Term-Out Date, the percentage obtained by dividing (i) the Commitment
of
that Revolving Lender by (ii) the Total Revolving Loan Commitment, as any
such
percentages may be adjusted by assignments permitted pursuant to Sections
9.1
and 9.9;
and
(b) after
the Term-Out Date, the percentage obtained by dividing (i) the aggregate
outstanding principal balance of the Term Loans held by that Revolving Lender
by
(ii) the aggregate outstanding principal balance of the Term Loans held by
all
Revolving Lenders.
Trading
Days
means, with respect to an Exchange, any days which such Exchange is open
for
trading or quotation and Trading
Day
means any one of them.
Trustees
shall have the meaning assigned to it in the Restructuring Intercreditor
Agreement.
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4
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Schedule
B
Closing
Agenda
