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Exhibit 10a
IMPERIAL PARKING LIMITED
as Borrower
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504463 N.B. INC.
as Guarantor
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THE FINANCIAL INSTITUTIONS SET FORTH
ON THE SIGNATURE PAGES HEREOF
- and -
BT BANK OF CANADA
as Agent
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 17, 1997
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Exhibit 10a
TABLE OF CONTENTS
PAGE NO.
ARTICLE 1
INTERPRETATION
Section 1.1. Defined Terms. 2
Section 1.2. Gender and Number. 24
Section 1.3. Headings. 24
Section 1.4. Currency. 24
Section 1.5. Certain Phrases, etc. 24
Section 1.6. Accounting Terms. 25
Section 1.7. Deeming Provision. 25
Section 1.8. Rateable Portion of Accommodations. 25
Section 1.9. Incorporation of Schedules. 25
Section 1.10. Interpretation. 25
ARTICLE 2
CREDIT FACILITIES
Section 2.1. Availability. 25
Section 2.2. Commitments and Facility Limits. 26
Section 2.3. Use of Proceeds. 26
Section 2.4. Mandatory Repayments. 27
Section 2.5. Mandatory Prepayments. 27
Section 2.6. Optional Prepayments and Reductions of Commitments. 27
Section 2.7. Fees. 28
Section 2.8. Payments under this Agreement. 29
Section 2.9. Application of Payments and Prepayment. 29
Section 2.10. Computations of Interest and Fees. 30
Section 2.11. Payments on Maturity. 30
ARTICLE 3
ADVANCES
Section 3.1. The Advances. 30
Section 3.2. Procedure for Borrowing. 30
Section 3.3. Interest on Advances. 31
ARTICLE 4
BANKERS' ACCEPTANCES
Section 4.1. Acceptances and Drafts. 31
Section 4.2. Form of Drafts. 32
Section 4.3. Procedure for Drawing. 32
Section 4.4. Presigned Draft Forms. 33
Section 4.5. Payment, Conversion or Renewal of Bankers' Acceptances. 33
Section 4.6. Circumstances Making Bankers' Acceptances Unavailable. 34
ARTICLE 5
LETTERS OF CREDIT
Section 5.1. Letters of Credit. 34
Section 5.2. Procedure for Issue. 35
Section 5.3. Form of Letters of Credit. 35
Section 5.4 Use of Letters of Credit. 35
Section 5.5 Reimbursements of Amounts Drawn. 35
Section 5.6 Risk of Letters of Credit. 36
Section 5.7 Fees. 37
Section 5.8 Repayments. 37
ARTICLE 6
CONDITIONS OF LENDING
Section 6.1 Conditions Precedent to the Initial Accommodation. 38
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Section 6.2. Conditions Precedent to All Accommodations. 40
Section 6.3 Acquisition Facility. 40
Section 6.4. No Waiver. 42
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties. 42
Section 7.2. Survival of Representations and Warranties. 49
ARTICLE 8
COVENANTS
Section 8.1. Affirmative Covenants. 49
Section 8.2. Negative Covenants. 53
Section 8.3. Financial Covenants. 57
ARTICLE 9
EVENTS OF DEFAULT
Section 9.1. Events of Default. 58
Section 9.2. Remedies Upon Demand and Default. 61
ARTICLE 10
THE AGENT AND THE LENDERS
Section 10.1. Authorization and Action. 62
Section 10.2. No Liability. 63
Section 10.3. BT Bank of Canada. 63
Section 10.4. Discount Rate Determinations. 64
Section 10.5. Holding of Security; Sharing of Payments, etc. 64
Section 10.6. Lender Credit Decisions. 65
Section 10.7. Indemnification. 65
Section 10.8. Liability of the Lenders inter se. 65
Section 10.9. Successor Agents. 66
ARTICLE 11
MISCELLANEOUS
Section 11.1. Amendment. 66
Section 11.2. Waiver. 66
Section 11.3. Evidence of Debt and Accommodation Notices. 67
Section 11.4. Notices, etc. 67
Section 11.5. Confidentiality. 68
Section 11.6. Costs, Expenses and Indemnity. 68
Section 11.7. Confirmation of Security Interests. 70
Section 11.8. Successors and Assigns. 70
Section 11.9. Right of Set-off. 72
Section 11.10. Accommodations by Lenders. 72
Section 11.11. Rateable Payments. 73
Section 11.12. Interest on Accounts. 73
Section 11.13. Advice. 73
Section 11.14. Governing Law. 73
Section 11.15. Counterparts. 74
ARTICLE 5
LETTERS OF CREDIT
Section 5.1. Documentary Credits. 34
Section 5.2. Procedure for Issue. 34
Section 5.3. Form of Letters of Credit. 35
Section 5.4 Use of Letters of Credit. 35
Section 5.5 Reimbursements of Amounts Drawn. 35
Section 5.6 Risk of Letters of Credit. 35
Section 5.7 Fees. 36
Section 5.8 Repayments. 37
ARTICLE 6
CONDITIONS OF LENDING
Section 6.1 Conditions Precedent to the Initial Accommodation. 37
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Section 6.2. Conditions Precedent to All Accommodations. 39
Section 6.3 Acquisition Facility. 40
Section 6.4. No Waiver. 41
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties. 41
Section 7.2. Survival of Representations and Warranties. 48
ARTICLE 8
COVENANTS
Section 8.1. Affirmative Covenants. 49
Section 8.2. Negative Covenants. 53
Section 8.3. Financial Covenants. 57
ARTICLE 9
EVENTS OF DEFAULT
Section 9.1. Events of Default. 57
Section 9.2. Remedies Upon Demand and Default. 60
ARTICLE 10
THE AGENT AND THE LENDERS
Section 10.1. Authorization and Action. 61
Section 10.2. No Liability. 62
Section 10.3. BT Bank of Canada. 62
Section 10.4. Discount Rate Determinations. 63
Section 10.5. Holding of Security; Sharing of Payments, etc. 63
Section 10.6. Lender Credit Decisions. 64
Section 10.7. Indemnification. 64
Section 10.8. Liability of the Lenders inter se. 64
Section 10.9. Successor Agents. 65
ARTICLE 11
MISCELLANEOUS
Section 11.1. Amendment. 65
Section 11.2. Waiver. 66
Section 11.3. Evidence of Debt and Accommodation Notices. 66
Section 11.4. Notices, etc. 66
Section 11.5. Confidentiality. 67
Section 11.6. Costs, Expenses and Indemnity. 67
Section 11.7. Confirmation of Security Interests. 69
Section 11.8. Successors and Assigns. 69
Section 11.9. Right of Set-off. 71
Section 11.10. Accommodations by Lenders. 71
Section 11.11. Rateable Payments. 72
Section 11.12. Interest on Accounts. 72
Section 11.13. Advice. 72
Section 11.14. Governing Law. 72
Section 11.15. Counterparts. 73
SCHEDULES
Schedule 1 - Form of Borrowing Notice
Schedule 2 - Form of Notice of Interest Rate Election
Schedule 3 - Form of Drawing Notice
Schedule 3A - Form of Issue Notice
Schedule 4 - Notice Periods and Amounts
Schedule 5 - List of Additional Loan Parties, Security Documents and other Credit Documents
Schedule 6 - Insurance
Schedule 7 - Location of Assets and Business
Schedule 8 - Environmental Permits
Schedule 9 - Owned Properties
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Schedule 10 - Leased Properties and Management Properties
Schedule 11 - Permitted Indebtedness
Schedule 12 - Share Ownership
Schedule 13 - Material Agreements
Schedule 14 - Tax Claims
Schedule 15 - Intentionally Deleted
Schedule 16 - Form of Compliance Certificate
Schedule 17 - Qualifying Shareholder Arrangements
Schedule 18 - Incorporation and Qualification
Schedule 19 - Litigation
Schedule 20 - Form of Assumption Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
Amended and Restated Credit Agreement dated as of April 17,
1997, among IMPERIAL PARKING LIMITED, a corporation amalgamated and existing
under the laws of Canada, as Borrower, 504463 N.B. Inc., a corporation
incorporated and existing under the laws of the Province of New Brunswick, as
Guarantor, the financial institutions set forth on the signature pages hereof,
as Lenders, and BT BANK OF CANADA, as Agent.
WHEREAS this agreement amends and restates the Original Credit
Agreement (as hereinafter defined) entered into by the Borrower, Canadian
Imperial Bank of Commerce as both Lender and Agent and Hongkong Bank of Canada
as Lender dated as of November 13, 1996;
AND WHEREAS Canadian Imperial Bank of Commerce assigned
certain rights and obligations as Lender and Agent under the Original Credit
Agreement to BT Bank of Canada pursuant to an Assignment Agreement dated April
17, 1997;
AND WHEREAS in connection with the acquisition by First Union
Management, Inc. ("FUMI") of an indirect controlling interest in Imperial
Holdings No. 2 Inc. pursuant to a share purchase agreement dated February 18,
1997, as amended, among First Union Real Estate Equity and Mortgage Investments
("FUR"), Impark Investments Inc. and certain management vendors, the Borrower
is, for the benefit of its shareholders, participating in a recapitalization of
Borrower and certain of its subsidiaries and affiliates (the "TRANSACTION");
AND WHEREAS the Guarantor has, inter alia, given a guarantee
of even date herewith in favour of the Agent and the Lenders with respect to the
obligations of the Borrower under the Credit Documents (defined hereinafter);
AND WHEREAS, as part of such recapitalization, the Agent and
the Lenders have agreed to continue to make available to the Borrower certain
credit facilities on the revised terms and subject to the revised conditions set
forth in this Agreement;
AND WHEREAS the Lenders, the Borrower and the Agent desire to
amend and restate all of the current facilities made available to the Borrower
by the Agent and the Lenders on the terms and subject to the conditions set
forth in this Agreement;
NOW THEREFORE, in consideration of the Agreement set forth
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Agent, the Lenders and the Borrower hereby agree
that the Original Credit Agreement is hereby amended and restated in its
entirety as follows:
ARTICLE I
INTERPRETATION
SECTION 1. DEFINED TERMS. As used in this Agreement, the following terms have
the following meanings:
"ACCOMMODATION" means (i) an Advance made by a Lender on the occasion
of any Borrowing; (ii) the creation and purchase of Bankers' Acceptances or the
purchase of completed Drafts by a Lender or by any other Person on the occasion
of any Drawing; and (iii) the issue of a Letter of Credit by BT (each of which
is a "TYPE" of Accommodation).
"ACCOMMODATION NOTICE" means a Borrowing Notice or a Drawing Notice.
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"ACCOMMODATIONS OUTSTANDING" means at any time under a Credit Facility,
an amount equal to (i) in relation to the Borrower and all Lenders, the sum of
(u) the aggregate principal amount of all outstanding Advances; (v) the
aggregate Face Amount of all outstanding Bankers' Acceptances, completed Drafts
and, without duplication, BA Equivalent Notes which the Lenders have purchased
or arranged to have purchased; and (w) the aggregate Face Amount of all Letters
of Credit for which BT is contingently liable; and (ii) in relation to the
Borrower and any Lender, the sum of (x) the aggregate principal amount of all
outstanding Advances made by such Lender; (y) the aggregate Face Amount of all
outstanding Bankers' Acceptances, completed Drafts and, without duplication, BA
Equivalent Notes which such Lender has purchased or arranged to have purchased;
and (z) in the case of BT only, the aggregate Face Amount of all Letters of
Credit for which BT is contingently liable.
"ACCOUNT" means any and all of the Borrower's accounts, contract
rights, instruments, chattel papers and general intangibles, whether secured or
unsecured, now existing or hereafter created, whether or not specifically sold
or assigned to the Lenders.
"ACQUISITION COMMITMENT" means, at any time, in respect of the
Acquisition Facility, Cdn. $10,000,000 (as reduced pursuant to Section 2.6).
"ACQUISITION FACILITY" means the Credit Facility to be made available
to the Borrower hereunder for the purpose specified in Section 2.3.
"ADDITIONAL LOAN PARTIES" means, at any time, the Guarantor and other
Persons specified in Schedule 5 as guarantors and any Persons which may from
time to time become guarantors of all of the obligations of the Borrower under
this Agreement and/or the other Credit Documents and their respective successors
and assigns, who have delivered to the Agent a guarantee and security over all
of their property and assets together with an opinion of counsel, all in form
and substance satisfactory to the Agent, acting reasonably, whether or not there
are any Accommodations Outstanding at such time.
"ADVANCES" means advances made by a Lender under Article 3 and
"ADVANCE" means any one of such advances. Advances will be denominated in
Canadian Dollars as a "CANADIAN PRIME RATE ADVANCE".
"AFFILIATE" has the meaning ascribed thereto in the Securities Act
(Ontario) as in effect on the date hereof.
"AGENT" means BT, as agent for the Lenders hereunder, and any successor
thereto appointed pursuant to Section 10.9.
"AGREEMENT" means this credit agreement and all schedules and
instruments in amendment or confirmation of it; "HEREOF", "HERETO" and
"HEREUNDER" and similar expressions refer to this Agreement and not to any
particular Article or Section; and the expressions "ARTICLE" and "SECTION"
followed by a number mean and refer to the specified Article or Section of this
Agreement.
"ANCILLARY AGREEMENT" means an ancillary agreement entered into by BT,
Hongkong Bank of Canada and FUR dated the 17th day of April, 1997.
"ANNUALIZED CAPITAL EXPENDITURES" means for any period of months,
commencing April 1, 1997, an amount equal to the aggregate amount of Capital
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Expenditures for such period multiplied by a fraction, the numerator of which is
12 and the denominator of which is the number of calendar months which have
elapsed since April 1, 1997.
"ANNUALIZED CONSOLIDATED EBITDA" means for any period of months,
commencing April 1, 1997, an amount equal to Consolidated EBITDA for such period
multiplied by a fraction, the numerator of which is 12 and the denominator of
which is the number of calendar months which have elapsed since April 1, 1997.
"ANNUALIZED CONSOLIDATED INTEREST CHARGES" means for any period of
months commencing April 1, 1997, an amount equal to the Consolidated Interest
Charges for such period multiplied by a fraction, the numerator of which is 12
and the denominator of which is the number of calendar months which have elapsed
since April 1, 1997.
"ARM'S LENGTH" has the meaning ascribed thereto in the Income Tax Act
(Canada), as in effect on the date hereof.
"ASSETS" means, with respect to each of the Borrower, the Guarantor and
their respective Subsidiaries, all property and assets of the Borrower, the
Guarantor and each such Subsidiary of every kind and wheresoever situate,
whether now owned or hereafter acquired.
"ASSIGNEE" has the meaning specified in Section 11.8(3).
"AUTHORIZATION" means, with respect to any Person, any authorization,
order, permit, approval, grant, license, consent, right, franchise, privilege,
certificate, judgment, writ, injunction, award, determination, direction,
decree, by-law, rule or regulation of any Governmental Entity having
jurisdiction over such Person, whether or not having the force of Law.
"BANKERS' ACCEPTANCE" has the meaning specified in Section 4.1.
"BA EQUIVALENT NOTE" has the meaning specified in Section 4.3(3).
"BENEFICIARY" means, in respect of each Letter of Credit, the
beneficiary named in the Letter of Credit.
"BORROWER" means, at any time, Imperial Parking Limited, its successors
and permitted assigns, whether or not there are any Accommodations Outstanding
hereunder at such time.
"BORROWER'S ACCOUNTS" means the Borrower's Canadian Dollar accounts
maintained by the Agent at its offices, the particulars of which shall have been
notified by the Agent to the Borrower.
"BORROWER'S BUSINESS" means, with respect to the Borrower and its
Subsidiaries, the businesses presently and heretofore carried on by the Borrower
and its Subsidiaries consisting of the operation of parking facilities on Owned
Properties or under management contracts and/or leases, valet parking, providing
ancillary and related services such as signs, repairs, and consulting, the
manufacture of parking lot and parking garage equipment and the ownership of
real property for the purpose of conducting a parking operation or as part of
the assets acquired directly or indirectly as part of a Qualifying Acquisition.
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"BORROWER EXCESS CASH FLOW" means for any period Excess Cash Flow minus
all amounts relating to the Guarantor and its Consolidated Subsidiaries.
"BORROWER'S NOTE PURCHASE AGREEMENT" means a Note Purchase Agreement
dated April 17, 1997 executed by the Borrower and Financeco respecting
Cdn.$55,000,000 Senior Subordinated Partial PIK Notes due April 17, 2009.
"BORROWING" means a borrowing consisting of one or more Advances.
"BORROWING NOTICE" has the meaning specified in Section 3.2(1).
"BT" means BT Bank of Canada.
"BUILDINGS AND FIXTURES" means all plant, buildings, structures,
erections, improvements, appurtenances and fixtures (including fixed machinery
and fixed equipment) situate on the Owned Properties.
"BUSINESS DAY" means any day of the year, other than a Saturday, Sunday
or other day on which banks are required to close in Xxxxxxx, Xxxxxxx.
"CANADIAN DOLLARS" and "Cdn.$" each means lawful money of Canada.
"CANADIAN PRIME RATE" means, at any time, the rate of interest per
annum equal to the greater of (i) the per annum rate of interest quoted,
published and commonly known as the "prime rate" of the Agent which the Agent
establishes at its main office in Toronto, Ontario as the reference rate of
interest in order to determine interest rates for loans in Canadian Dollars to
its Canadian borrowers, adjusted automatically with each quoted or published
change in such rate, all without the necessity of any notice to the Borrower or
any other Person; and (ii) the average of the 30 day discount rates on banker's
acceptances as quoted on Reuters Screen CDOR Page at approximately 10:00 a.m.
(Toronto time) plus 1.0%, adjusted automatically with each quoted, published or
displayed change in such rate, all without necessity of any notice to the
Borrower or any other Person.
"CAPITAL EXPENDITURES" means expenditures made for the purchase, lease
or acquisition of fixed assets or for research and development required to be
capitalized in accordance with Generally Accepted Accounting Principles, other
than capitalized leases with respect to an interest in real property for the
purpose of conducting a parking operation and any expenditures made (whether
with respect to payment of the purchase price or otherwise) in connection with
the making of a Qualified Acquisition.
"CHANGE OF CONTROL" means FUMI (or any successor thereto continuing
from any amalgamation, merger or other reorganization thereof) ceasing to
beneficially own, directly or indirectly, sufficient issued and outstanding
securities in the capital of either the Borrower or Guarantor to give it
effective voting control over such corporation.
"CLAIM" means any claim of any nature whatsoever, including any demand,
liability, obligation, cause of action, suit, proceeding, judgment, award,
assessment and reassessment.
"CLOSING DATE" means April 17, 1997.
"COLLATERAL" means the Assets in respect of which any Lender has or
will have a Security Interest pursuant to a Security Document.
"COMMITMENT" means, at any time, the Term Commitment, the
Acquisition
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Commitment and the Operating Commitment.
"COMPLIANCE CERTIFICATE" means a certificate of the Borrower signed on
its behalf by its chief financial officer, or any other officer acceptable to
the Agent substantially in the form of Schedule 16.
"CONNECTED AGREEMENTS" means all Security Documents and other
agreements, certificates and instruments delivered or given pursuant to or in
connection with this Agreement; and "Connected Agreement" means any one of such
Security Documents, agreements, certificates or other instruments.
"CONSOLIDATED DEPRECIATION AND AMORTIZATION EXPENSE" means, for any
period of months, the depreciation and amortization expense of the Borrower, the
Guarantor and their respective Consolidated Subsidiaries determined in
accordance with Generally Accepted Accounting Principles.
"CONSOLIDATED EBITDA" means, for any period of months, the Consolidated
Net Income of the Borrower, the Guarantor and their respective Consolidated
Subsidiaries (or with respect to the definition of Target EBITDA, the relevant
target entity mutatis mutandis) increased by the sum of (i) Consolidated
Interest Charges, (ii) Consolidated Income Tax Expense, and (iii) Consolidated
Depreciation and Amortization Expense, (in each case, for such period and
calculated prior to extraordinary items), and (iv) such out-of-pocket expenses
incurred by such entities on a one time basis and which can reasonably be solely
attributed to the carrying out of the Transaction.
"CONSOLIDATED INCOME TAX EXPENSE" means, for any period of months, the
aggregate of all taxes (including deferred taxes) based on income of the
Borrower, the Guarantor and their respective Consolidated Subsidiaries for such
period determined in accordance with Generally Accepted Accounting Principles.
"CONSOLIDATED INDEBTEDNESS" means the aggregate of all Debts For
Borrowed Money of the Borrower, the Guarantor and their respective Consolidated
Subsidiaries less (x) Subordinated Debt, (y) cash and Permitted Marketable
Securities on the balance sheet of the latest financial statements delivered to
the Agent pursuant to Section 8.1(a), provided that such cash is maintained in
an account at BT and such Permitted Marketable Securities are held by the Agent
as custodian and (z) such other cash and Permitted Marketable Securities on the
balance sheet of the latest financial statements delivered to the Agent pursuant
to Section 8.1(a) to the extent that such cash does not exceed an aggregate
amount of U.S. $250,000, is not deposited with BT and is held outside of Canada.
"CONSOLIDATED INTEREST CHARGES" means, for any period of months for the
Borrower, the Guarantor and their respective Consolidated Subsidiaries, the
total of (i) all items properly classified as interest expense (whether expended
or capitalized) in accordance with Generally Accepted Accounting Principles; and
(ii) the imputed interest component for any element of Consolidated Indebtedness
(such as capital leases and deferred revenues) which would not be classified as
interest expense pursuant to Generally Accepted Accounting Principles,
calculated using an interest rate equal to the then prevailing Canadian Prime
Rate, in each case for such period, provided that, notwithstanding the
foregoing, with respect to the FUR Subordinated Debt no interest will be
included in this calculation.
"CONSOLIDATED NET INCOME" means, for any period of months, the net
income (loss) of the Borrower, the Guarantor and their respective Consolidated
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Subsidiaries determined in accordance with Generally Accepted Accounting
Principles but excluding (i) any gain or loss arising from the sale of capital
assets; (ii) any gain or loss arising from any write-up or write-down of assets;
(iii) earnings of any other Person, substantially all of the assets of which
have been acquired by the Borrower, the Guarantor or a Consolidated Subsidiary
in any manner, to the extent that such earnings were realized by such other
Person prior to the date of such acquisition; (iv) net earnings of any Person
(other than a Consolidated Subsidiary) in which the Borrower, the Guarantor or a
Consolidated Subsidiary has an ownership interest, to the extent that such
earnings have not actually been received by the Borrower, the Guarantor or such
Consolidated Subsidiary in the form of cash distributions; (v) the earnings of
any Person to which assets of the Borrower, the Guarantor or a Consolidated
Subsidiary have been sold, transferred or disposed of or into which the
Borrower, the Guarantor or a Consolidated Subsidiary shall have merged, to the
extent that such earnings arose prior to the date of such transactions; and (vi)
any gain arising from the disposition of any securities of the Borrower, the
Guarantor or a Consolidated Subsidiary.
"CONSOLIDATED NET WORTH" means, at any time, with respect to any Person
and its Consolidated Subsidiaries, the aggregate of (i) the total shareholders'
equity determined as of such time in accordance with Generally Accepted
Accounting Principles; plus (ii) the FUR Subordinated Debt; where shareholders
equity for greater certainty and without duplication includes any shares in the
capital of such Person or its Subsidiaries which are redeemable at the option of
the holder in accordance with their terms; provided, however that the Borrower
hereby acknowledges that Section 8.2(h) contains a restriction with respect to
the redemption of shares by the Borrower.
"CONSOLIDATED PARKING CONTRACTS" means, at any time, with respect to
the Borrower, the Guarantor and their respective Consolidated Subsidiaries, the
aggregate of (i) the total number of existing contracts and leases which are in
full force and effect for the management or operation of parking lots or parking
garages; and (ii) the number of parking lots or parking garages operated on
properties owned by the Borrower, the Guarantor and their respective
Consolidated Subsidiaries.
"CONSOLIDATED SUBSIDIARY" means, at any date, in respect of any Person,
a Subsidiary of such Person which is or should be consolidated with such Person
in its consolidated financial statements prepared as of such date.
"CONTINUING REPRESENTATIONS" means, collectively, the representations
and warranties contained in Section 7.1(c), (f), (h), (j)(B), (u), (w), (x),
(y), (aa), (ab), (ac), (ad) and (af).
"CREDIT DOCUMENTS" means this Agreement, the Original Credit Agreement,
the Drafts, the Bankers' Acceptances, the BA Equivalent Notes, the Security
Documents, the Hedging Agreements, the Fee Letters and all other Connected
Agreements.
"CREDIT FACILITIES" means, collectively, the Term Facility, the
Acquisition Facility and the Operating Facility.
"DEBT" of any Person means (i) all indebtedness of such Person for
borrowed money (even though the rights and remedies of the holder of such
indebtedness in the event of default may be limited to the foreclosure or sale
of specific property), including borrowings of commodities, bankers'
acceptances, letters of credit or letters of guarantee (except for letters of
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guarantee issued by the Borrower in the normal course of the Business which
secure the performance of certain obligations of the Borrower or any of its
Subsidiaries, as the case may be, as lessee under certain Leases and/or
management contracts); (ii) all indebtedness of such Person for the deferred
purchase price of property or services other than for goods and services
purchased in the ordinary course of business; (iii) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or Lender under such agreement in the event of default are limited
to repossession or sale of such property); (iv) all current liabilities of such
Person represented by a note, bond, debenture or other evidence of Debt; (v) all
obligations under leases which have been or should be, in accordance with
Generally Accepted Accounting Principles, recorded as capital leases in respect
of which such Person is liable as lessee; and (vi) all Debt Guaranteed by such
Person.
"DEBT FOR BORROWED MONEY" of any Person means (without duplication) (i)
all indebtedness of such Person for borrowed money, including bankers'
acceptances, letters of credit or letters of guarantee (except for letters of
guarantee issued by the Borrower to landlords in the normal course of business
which secure the performance of certain obligations of the Borrower or any of
its Subsidiaries, as the case may be as lessee under certain Leases and/or
Management Contracts); (ii) all indebtedness of such Person for the deferred
purchase price of property or services other than for goods and services
purchased in the ordinary course of business; (iii) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or Lender under such agreement in the event of default are limited
to repossession or sale of such property); (iv) all current liabilities of such
Person represented by a note, bond, debenture or other evidence of Debt; and (v)
all obligations under leases which have been or should be, in accordance with
Generally Accepted Accounting Principles, recorded as capital leases in respect
of which such Person is liable as lessee.
"DEBT GUARANTEED" by any Person means all Debt of the kinds referred to
in (i) through (v) of the definition of Debt which is directly or indirectly
guaranteed by such Person or which such Person has agreed (contingently or
otherwise) to purchase or otherwise acquire, or in respect of which such Person
has otherwise assured a creditor or other Person against Loss.
"DEBT REPAYMENT AMOUNT" means, as applicable, an optional prepayment of
the Term Facility, an optional prepayment of the Acquisition Facility or an
optional permanent reduction of any Letter of Credit issued under the Operating
Facility.
"DEFAULT" means an event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default.
"DISTRIBUTION" means (i) any dividend or other distribution on issued
shares of the Borrower, the Guarantor or any of their respective Subsidiaries;
(ii) the purchase, redemption or retirement of any issued shares of the
Borrower, the Guarantor or any of their respective Subsidiaries redeemed or
purchased by the Borrower, the Guarantor or any such Subsidiary, as the case may
be, or any payments made under any employee stock option agreement; (iii) any
consulting fee, management fee or management bonus paid or payable to any
director, officer, shareholder or Affiliate of the Borrower, the Guarantor or
any of their respective Subsidiaries or any Person not dealing at Arm's Length
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with the Borrower, the Guarantor or any of their respective Subsidiaries or
their respective directors, officers, shareholders or Affiliates; or (iv) any
payment on account of any principal and interest on any loans or advances owing
at any time by the Borrower, the Guarantor or any of their respective
Subsidiaries to any of their respective directors, officers, shareholders or
Affiliates.
"DRAFT" means at any time a xxxxx xxxx of exchange, within the meaning
of the Bills of Exchange Act (Canada), drawn by the Borrower on a Lender or any
other Person and bearing such distinguishing letters and numbers as such Lender
or such Person may determine, but which at such time has not been completed or
accepted by such Lender or such Person.
"DRAWING" means (i) the creation and purchase of Bankers' Acceptances
by a Lender or by any other Person pursuant to Article 4; or (ii) the purchase
of completed Drafts by a Lender or by any other Person pursuant to Article 4.
"DRAWING DATE" means any Business Day fixed pursuant to Section 4.3 for
a Drawing .
"DRAWING FEE" means, with respect to each Draft or Bankers' Acceptance
drawn by the Borrower hereunder and purchased by any Person on any Drawing Date,
an amount equal to 1.75% multiplied by the aggregate Face Amount of such Draft,
calculated on the basis of the term to maturity of such Draft and a 365/366 day
year.
"DRAWING NOTICE" has the meaning specified in Section 4.3(1).
"DRAWING PURCHASE PRICE" means, in respect of Bankers' Acceptances or
Drafts to be purchased by a Lender or any other Person, the difference between
(i) the result (rounded to the nearest whole cent, with one-half of one cent
being rounded up) obtained by dividing the aggregate Face Amount of such
Bankers' Acceptances or Drafts by the sum of one plus the product of (x) the
Reference Discount Rate multiplied by (y) a fraction the numerator of which is
the number of days in the term of maturity of such Bankers' Acceptances or
Drafts, as the case may be, and the denominator of which is 365; and (ii) the
applicable aggregate Drawing Fee.
"ENCUMBRANCES" means liens, charges, mortgages, pledges, Security
Interests, adverse claims, defects of title, restrictions, deposit arrangements,
voting trusts, rights of set-off, any other rights of third parties relating to
anti property and any other encumbrances of any kind.
"ENVIRONMENTAL LAWS" means all applicable Laws relating to the
environment, occupational health and safety matters or conditions, Hazardous
Substances, pollution or protection of the environment.
"ENVIRONMENTAL LIABILITIES AND COSTS" means all Losses and Claims
imposed by, under or pursuant to Environmental Laws or otherwise relating to any
environmental condition, fact or circumstance, including all Losses and Claims
related to Remedial Actions and all reasonable fees, disbursements and expenses
of counsel, experts, personnel and consultants.
"ENVIRONMENTAL NOTICE" means, with respect to any Person, any claim,
citation, directive, request for information, statement of claim, notice of
investigation, letter or other written communication, from any Governmental
Entity in connection with any violation or alleged violation of Environmental
14
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Laws.
"ENVIRONMENTAL PERMITS" includes all permits, certificates, approvals,
registrations and licences issued by any Governmental Entity to the Borrower,
the Guarantor or any of their respective Subsidiaries or to the Business
pursuant to Environmental Laws and relating to or required for the operation of
the Business or the use of the Owned Properties, Leased Properties or other
Assets.
"ERISA" means the Employee Retirement Income Security Act (1974) and
any amendments thereto and applicable regulations promulgated thereunder.
"EVENT OF DEFAULT" has the meaning specified in Section 9.1.
"EXCESS CASH FLOW" means, for any period, the sum of (i) Consolidated
Net Income; (ii) Consolidated Depreciation and Amortization Expense; (iii)
deferred income taxes; and (iv) 50% of the net change in Other Non-Cash Items
during such period, all as are or would be included in a consolidated statement
of changes in financial position of the Borrower, the Guarantor and their
respective Consolidated Subsidiaries for such period less the aggregate for such
period of (v) all Capital Expenditures made by the Borrower, the Guarantor and
their respective Subsidiaries; and (vi) all cash amounts spent to acquire any
interest in real property or to purchase any share, other securities or assets
permitted in accordance with this Agreement.
"EXCLUDED LOAN PARTIES" means Holdco 1, Holdco 2, Impark Management
Inc. and Imperial Parking (Asia) Limited.
"EXISTING SECURITY INTERESTS" means the Security Interests set forth
in Schedule 11.
"FACE AMOUNT" means (i) in respect of a Draft, a Bankers' Acceptance
or a BA Equivalent Note, as the case may be, the amount payable to the holder
thereof on its maturity, and (ii) in respect of a Letter of Credit, the maximum
amount which the issuing Person is contingently liable to pay the Beneficiary.
"FEE LETTERS" means the letter agreements between the Borrower and the
Agent in respect of certain fees and other consideration payable to the Lenders.
"FEES" means the fees payable by the Borrower under Section 2.7.
"FINANCECO" means 3006302 Nova Scotia Company, a wholly owned
subsidiary of FUR, incorporated and existing under the laws of the Province of
Nova Scotia, and its permitted successors and assigns.
"FINANCIAL QUARTER" means a period of three consecutive months in each
Financial Year of the Borrower ending on March 31, June 30, September 30 and
December 31, as the case may be, of such year.
"FINANCIAL YEAR" means, in relation to the Borrower, its financial year
commencing on January 1 of each calendar year and ending on December 31 of that
calendar year.
"FUMI" means First Union Management Inc. and its successors and
permitted assigns.
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"FUR" means First Union Real Estate Equity and Mortgage Investments and
its successors and permitted assigns.
"FUR SUBORDINATED DEBT" means two separate debt obligations payable by
the Borrower and the Guarantor separately to Financeco which are at all times
subordinate in right of payment (including the payment of interest thereon) to
the payment in full of the Accommodations Outstanding and all other amounts
payable hereunder and under the other Credit Documents.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, at any time,
accounting principles generally accepted in Canada as recommended in the
Handbook of the Canadian Institute of Chartered Accountants at the relevant time
applied on a consistent basis (except for changes made with the prior written
consent of the Agent and approved by the Borrower's independent auditors in
accordance with promulgations of the Canadian Institute of Chartered
Accountants).
"GOVERNMENTAL ENTITY" means any (i) multinational, federal, provincial,
state, municipal, local or other government, governmental or public department,
central bank, court, commission, board, bureau, agency or instrumentality,
domestic or foreign; (ii) any subdivision, agent, commission, board, or
authority of any of the foregoing; or (iii) any quasi-governmental or private
body exercising any regulatory, expropriation or taxing authority under or for
the account of any of the foregoing.
"GUARANTOR" means 504463 N.B. Inc., a corporation incorporated and
existing under the laws of the Province of New Brunswick, and its permitted
successors and assigns.
"GUARANTOR'S BUSINESS" means with respect to the Guarantor and its
Subsidiaries, the businesses presently and heretofore carried on by the
Guarantor and its Subsidiaries consisting of ancillary and related services such
as security, collection and distribution of parking lot and parking garage
equipment or as part of the assets acquired directly or indirectly as part of a
Qualifying Acquisition.
"GUARANTOR'S NOTE PURCHASE AGREEMENT" means a Note Purchase Agreement
dated April 17, 1997 executed by the Guarantor and Financeco respecting
Cdn.$9,166,666 Senior Subordinated Partial PIK Notes due April 17, 2009.
"HAZARDOUS SUBSTANCE" means any substance, waste, liquid, gaseous or
solid matter, fuel, micro-organism, sound, vibration, ray, heat, odour,
radiation, energy, vector, plasma and organic or inorganic matter, which is or
is deemed to be, alone or in any combination, hazardous, hazardous waste, toxic,
a pollutant, a deleterious substance, a contaminant or a source of pollution or
contamination under any Environmental Law, whether or not such substance or
other thing is defined as hazardous under the Environmental Law.
"HEDGING AGREEMENTS" means one or more agreements between the Borrower
and one or more of the Lenders in the form published by the International Swaps
and Derivatives Association Inc. providing for "full two-way payments", with
schedules and confirmations relating thereto approved by the Agent and
evidencing (i) any interest rate hedge (including any interest rate snap, cap or
collar); or (ii) any foreign exchange hedge.
"HOLDCO 1" means 3355489 Canada Inc., a corporation incorporated and
existing under the laws of Canada and its permitted successors and assigns.
16
- 11 -
"HOLDCO 2" means 504308 N.B. Inc., a corporation incorporated and
existing under the laws of the Province of New Brunswick and its permitted
successors and assigns.
"HOSTILE TAKE-OVER BID" means an acquisition which would be considered
to be a take-over bid within the meaning of the Securities Act (Ontario) or any
other applicable securities legislation, in respect of which the board of
directors of the target recommends rejection of the take-over bid.
"INTEREST COVERAGE RATIO" means (i) for periods beginning on April 1,
1997 and ending on the last day of each Financial Quarter up to and including
the Financial Quarter ended March 31, 1998, the ratio of Annualized Consolidated
EBITDA less Annualized Capital Expenditures to Annualized Consolidated Interest
Charges; and (ii) for any Financial Quarter after the Financial Quarter ended
March 31, 1998, the ratio of Consolidated EBITDA less Capital Expenditures to
Consolidated Interest Charges for the twelve month period ending on the last day
of such Financial Quarter.
"ISSUE" means an issue of a Letter of Credit by BT, Participant or
Assignee pursuant to Article 5.
"ISSUE DATE" has the meaning specified in Section 5.2(1).
"ISSUE NOTICE" has the meaning specified in Section 5.2(1).
"LAWS" means all statutes, codes, ordinances, decrees, rules,
regulations, municipal by-laws, orders, decisions, rulings or awards, policies,
voluntary restraints, guidelines, or any provisions of the foregoing, including
general principles of common and civil law and equity, binding on or affecting
the Person referred to in the context in which such word is used; and "LAW"
means any one of the foregoing.
"LEASED PROPERTIES" means the real properties forming the subject
matter of the Leases to which the Borrower, the Guarantor or one of the other
Additional Loan Parties is a party in connection with the operation of the
Borrower's Business or Guarantor's Business, as applicable, including on the
date of this Agreement the real properties at the municipal addresses listed on
Schedule 10.
"LEASES" means the leases and subleases of real property to which each
of the Borrower, the Guarantor and the Additional Loan Parties is a party,
including on the date of this Agreement the leases and subleases set out on
Schedule 10.
"LENDER'S ACQUISITION COMMITMENT" means, at any time, the relevant
amount designated as such and set forth opposite such Lender's name on the
signature pages hereof, as reduced pursuant to Article 2.
"LENDER'S OPERATING COMMITMENT" means, at any time, the relevant amount
designated as such and set forth opposite such Lender's name on the signature
pages hereof, as reduced pursuant to Article 2.
"LENDER'S TERM COMMITMENT" means, at any time, the relevant amount
designated as such and set forth opposite such Lender's name on the signature
pages hereof, as reduced pursuant to Article 2.
"LENDERS" mean, collectively the financial institutions set forth on
the
17
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signature pages hereof and any financial institution which from time to time
becomes a lender hereunder, and in the singular, any one of them.
"LETTER OF CREDIT" means a standby letter of credit issued or to be
issued by BT for the account of the Borrower pursuant to Article 5.
"LEVERAGE RATIO" means (i) for periods beginning on April 1, 1997 and
ending on the last day of each Financial Quarter up to and including the
Financial Quarter ended March 31, 1998, the ratio of Consolidated Indebtedness
to Annualized Consolidated EBITDA; and (ii) for any Financial Quarter after the
Financial Quarter ended March 31, 1998, the ratio of Consolidated Indebtedness
to Consolidated EBITDA for the twelve month period ending on the last day of
such Financial Quarter;
"LOAN YEAR" means a 365 day period commencing on the date of this
Agreement, or any anniversary of the date of this Agreement as the context may
require, and references to a Loan Year and a number shall mean and refer to that
number which such Loan Year is after the date of this Agreement.
"LOSS" means any loss or expense whatsoever (other than loss of
profits, except to the extent that loss of profits are in connection with
breakage costs calculated by the Agent or a Lender in accordance with its usual
practices), whether direct or indirect, including expenses, costs, damages,
judgments, penalties, fines, charges, claims, demands, liabilities and any and
all legal fees and disbursements including, without limitation, preparation and
enforcement of applicable documentation and legal advice relating to the
Transaction.
"MAJORITY LENDERS" means, at any time, Lenders who, taken together, are
beneficially entitled to at least 66-2/3% of the aggregate Accommodations
Outstanding at such time, or, if there are no Accommodations Outstanding at such
time, Lenders whose Commitments, taken together, are at least 66-2/3% of the
aggregate amount of the Commitments.
"MANAGEMENT CONTRACTS" means the management contracts with respect to
the management of parking lots to which the Borrower or an Additional Loan Party
is a party, including on the date of this Agreement those listed and described
on Schedule 10.
"MANAGEMENT PROPERTIES" means the real properties upon which the
Borrower or an Additional Loan Party carries on the business of managing parking
lots pursuant to the Management Contracts, including on the date of this
Agreement the real properties at the municipal addresses listed on Schedule 10.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
Business, operations, results of operations, assets, liabilities or financial
condition of the Borrower, the Guarantor and their respective Subsidiaries,
taken as a whole; (ii) the ability of the Borrower, Guarantor or any other
Additional Loan Party to perform its or their respective obligations under any
of the Credit Documents; (iii) the ability of the Agent or any of the Lenders to
enforce their rights under any of the Credit Documents or realize upon the
Collateral; or (iv) the value of the Collateral or the amount which the Agent or
the Lenders would be likely to receive (after giving consideration to delays in
payment and costs of enforcement) in the liquidation of such Collateral.
"MATERIAL AGREEMENTS" has the meaning ascribed thereto in Section
7.1(x).
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"ONEX" means Onex Corporation, a corporation incorporated and existing
under the laws of Ontario.
"OPERATING COMMITMENT" means, at any time, in respect of the
Operating Facility, Cdn. $6,500,000 (as reduced pursuant to Article 2).
"OPERATING FACILITY" means the Credit Facility to be made available to
the Borrower hereunder for the purposes specified in Section 2.3.
"ORIGINAL CREDIT AGREEMENT" means the credit agreement among the
Borrower, Canadian Imperial Bank of Commerce, as both Lender and Agent, and
Hongkong Bank of Canada dated as of November 13, 1996.
"ORIGINAL CREDIT AGREEMENT DEBT" means all indebtedness and liability
of the Borrower outstanding pursuant to the Original Credit Agreement.
"ORIGINAL CREDIT AGREEMENT SECURITY" means the Security Interests in
favour of the Agent or the Lenders, or both, in the assets and properties
securing the obligations of the Borrower and the Additional Loan Parties under
the Original Credit Agreement or other credit documents delivered pursuant
thereto.
"OTHER NON-CASH ITEMS" means, collectively, accounts receivable,
inventory and trade accounts payable.
"OWNED PROPERTIES" means, collectively, the land and premises owned by
the Borrower, the Guarantor and their respective Subsidiaries and the Buildings
and Fixtures thereon, including on the date of this Agreement the land and
premises listed on Schedule 9.
"PARTICIPANT" has the meaning specified in Section 11.8(3).
"PAYMENT ACCOUNT" means the Canadian Dollar accounts maintained by the
Agent at its principal office, the particulars of which the Agent shall, from
time to time, notify to the Borrower.
"PERMITTED ENCUMBRANCES" means any one or more of the following:
(a) Encumbrances for taxes, rates, assessments or governmental
charges or levies not at the time due and delinquent or the
validity of which is being contested at the time by the
Borrower in good faith by proper legal proceedings;
(b) Encumbrances resulting from any judgment rendered or Claim
filed against the Borrower which the Borrower shall be
contesting in good faith by proper legal proceedings;
(c) undetermined or inchoate Encumbrances which have not at such
time been filed or registered pursuant to Law against the
Borrower or which relate to obligations not due or delinquent;
(d) Encumbrances affecting real property which are (i) title
defects or irregularities of a minor nature; or (ii)
restrictions, easements, rights-ofway, servitudes or other
similar rights in land (including, without restriction,
rights-of-way and servitudes for railways, sewers, drains,
gas and oil pipelines, gas and water mains, electric light
and power and telephone or telegraph or cable television
conduits, poles, wires, cables or other incidental
19
- 14 -
equipment) granted to or reserved by other Persons; in each
case where such Encumbrances in the aggregate do not
materially impair the usefulness of the property for the
purposes for which it is held and mortgages of and other
Encumbrances against the said easements, rights-of-way,
servitudes or other similar rights in real property;
(e) the right reserved to or vested in any Governmental Entity
by any statutory provision, or by the terms of any lease,
license, franchise, grant or permit of the Borrower, to
terminate any such lease, license, franchise, grant or
permit, or to require annual or other payments as a
condition to the continuance thereof;
(f) liens or other Encumbrances for the excess of the amount of
any past due taxes for which a final assessment has not
been received over the amount of such taxes, rates,
assessments, charges and levies as estimated and paid by
the Borrower;
(g) reservations in any original grants from the Crown of any
land or interest therein, statutory exceptions to title,
and reservations of mineral rights (including coal, oil and
natural gas) in any grants from the Crown or from any other
predecessors in title;
(h) liens and privileges arising out of judgments or awards
with respect to which an appeal or proceedings for review
is being prosecuted in good faith and by appropriate
proceedings and with respect to which there shall have been
secured a stay of execution pending the appeal or
proceedings for review or for which security acceptable to
the Agent has been posted by the Borrower;
(i) liens or deposits in connection with bids, tenders,
contracts or expropriation proceedings of the Borrower or
to secure workers' compensation, unemployment insurance or
other similar statutory assessments, or to secure costs of
litigation when required by law, and surety or appeal bonds
in connection with such litigation;
(j) warehouseman's, carriers' or other similar common law liens
or privileges, where the action to enforce the same has not
proceeded to final judgment, is being defended in good
faith by the Borrower and by appropriate proceedings and in
respect of which it shall have set aside on its books
reserves deemed by it to be adequate therefor;
(k) any other liens or privileges or other title
irregularities, encroachments or encumbrances of a nature
similar to the foregoing which are of a minor nature and
will not in the aggregate materially and adversely affect
the use of the property for the purposes for which it is
held by the Borrower or any of its Subsidiaries;
(l) deposits of cash or securities in connection with any liens
or privileges referred to in paragraphs (a) and (h) above;
(m) assignments of insurance provided to landlords (or their
mortgagees) pursuant to the terms of any lease and liens or
rights reserved in or exercised under any lease for rent or
compliance with the terms of such lease;
20
- 15 -
(n) mechanics', workers', repairers' or other like possessory
liens, arising in the ordinary course of business for
amounts the payment of which is either not delinquent or is
being contested in good faith by appropriate proceedings;
(o) plans of subdivision, site plans, municipal agreements or
restrictive covenants affecting the use to which lands may
be put, provided that such covenants are complied with and
do not materially detract from the value of the land
concerned or materially impair its use in the operation of
the Business;
(p) rights and interests created by notice registered by any
Department of Highways or similar authority with respect to
proposed highways and which do not materially detract from
the value of the land concerned or materially impair its
use in the operation of the Business;
(q) zoning and building laws and ordinances and municipal
by-laws (including site specific by-laws);
(r) lis pendens that may be registered against any real
property or interests therein of the Borrower or any of its
Subsidiaries in respect of any action or proceeding against
the Borrower or any of its Subsidiaries or in which it is a
defendant, but with respect to which action or proceeding
no judgment, award or attachment against the Borrower or
such Subsidiary has been granted or made and which the
Borrower or such Subsidiary is defending in good faith and
by appropriate proceedings and for which security
satisfactory to the Agent has been posted by the Borrower
or its Subsidiary, as the case may be;
(s) the granting by the Borrower in the ordinary course of its
business of any lease, sub-lease, tenancy or right of
occupancy to any Person in respect of property owned or
leased by the Borrower and dealings by such Persons with
their leasehold interests, including any notice thereof or
any security interest therein provided that, with respect
to any of the foregoing having annual rental payments
greater than $50,000, the rights of any such Person shall
have been subordinated to the rights of the Lenders under
the Security Documents pursuant to a written subordination
agreement in form and substance satisfactory to Lender,
acting reasonably;
(t) any Encumbrance resulting from security given to a utility
when required by such utility in connection with the
operation of the Business;
(u) Encumbrances in favour of the Lenders created by the
Security Documents;
(v) Encumbrances existing on the date hereof and disclosed in
Schedule 11 only to the extent such Encumbrances conform to
their description in Schedule 11, and not any extension or
renewal or replacement thereof or increase in the amount
secured thereby;
(w) Purchase Money Mortgages, securing Debt, in an aggregate
amount not to exceed $1,000,000;
(x) Encumbrances in favour of Financeco, subordinate to the
encumbrances referred to in (u) above, given in connection
with the
00
- 00 -
XXX Xxxxxxxxxxxx Xxxx; and
(y) other Encumbrances in an aggregate amount not to exceed
$50,000.
"PERMITTED INDEBTEDNESS" means the Consolidated Indebtedness as
specifically described on Schedule 11 and not any extension or renewal or
replacement thereof or increase in the amount.
"PERMITTED MARKETABLE SECURITIES" means any securities held by the
Borrower or any of its Subsidiaries which are publicly traded on a recognized
stock exchange and do not represent greater than 5% of the issued and
outstanding securities of the issuing corporation and any fixed income
securities for which a public market exists.
"PERSON" means an individual, partnership, corporation, joint stock
company, trust, unincorporated association, joint venture or other entity or
Governmental Entity.
"PURCHASE MONEY MORTGAGE" means any Security Interest charging property
acquired by the Borrower, which is or has been granted or assumed by the
Borrower or which arises by operation of Law in favour of the transferor
substantially concurrently with and for the purpose of the acquisition of such
property, in each case where (i) the principal amount secured by such Security
Interest is not in excess of the cost to the Borrower of the property acquired;
and (ii) such Security Interest extends only to the property acquired.
"QUALIFYING ACQUISITION" means (i) an acquisition by the Borrower of
100% of the issued and outstanding shares in the capital of a corporation or an
acquisition of all or substantially all of the assets pertaining to a business,
where, in each case (x) not less than 90% of the assets or revenues of the
corporation or business are located or generated, as the case may be, in Canada
or the United States or such other jurisdiction as the Agent may agree, acting
reasonably; (y) at least 90% of the business acquired pursuant thereto is
comprised of the Borrower's Business; and (z) the ratio of TEV/Target EBITDA of
the corporation or business being acquired is not greater than 5.0:1.0, except
in the case where new (additional) equity financing or Subordinated Debt is
provided to fund the difference between the acquisition price and the TEV which
would have been represented by 5.0 x Target EBITDA; (ii) if less than 100% of
the issued and outstanding shares in the capital of any corporation is being
acquired (x) the conditions set forth under (x), (y) and (z) of (i) above are
satisfied; (y) at least 51 % of the issued and outstanding shares in the capital
of such corporation is being acquired, except in an arrangement as described in
subparagraph (iii) below; and (z) a shareholders' agreement containing the
Qualifying Shareholder Arrangements has been or will be entered into by all
relevant Persons within 30 days of the Qualifying Acquisition; and in any event,
a Qualifying Acquisition does not include a Hostile Take-Over Bid; and (iii) an
investment by the Borrower in a joint venture or other private business
arrangement with FUR, FUMI or any Subsidiary or Affiliate thereof, to develop
businesses involving, or ancillary to, the Borrower's Business, provided that
such investment is limited to an amount no greater than Cdn.$2,000,000 and the
investment satisfies the tests set out in subparagraph (i) (x) and (y) above.
"QUALIFYING SHAREHOLDER ARRANGEMENTS" means a shareholders agreement in
respect of a corporation in which the Borrower is acquiring less than 100% of
the issued and outstanding shares which agreement shall be in compliance with
the provisions set forth in Schedule 17.
22
- 17 -
"REFERENCE DISCOUNT RATE" means, in respect of any Bankers' Acceptances
or Drafts to be purchased by a Lender or any other Person pursuant to Article 4,
(i) which is a Schedule I Bank, the average discount rate on bankers'
acceptances as quoted on Reuters' Screen CDOR Page at approximately 10:00 a.m.
(Toronto time) on the relevant Drawing Date or (ii) which is a Schedule II Bank,
the lesser of (x) their bid rate; and (y) the discount rate calculated in (i)
above plus 0.07%.
"RELEASE" when used as a verb includes release, spill, leak, emit,
deposit, discharge, xxxxx, migrate or dispose into the environment and the term
"Release" when used as a noun has a correlative meaning.
"RELEVANT REPAYMENT DATE" means, in respect of the repayment of all
Accommodations made under (i) the Operating Facility; (ii) the Term Facility;
and (iii) the Acquisition Facility, the third anniversary of the Closing Date.
"REMEDIAL ACTION" means any action, whether voluntary or compelled,
that is reasonably necessary to (i) clean up, remove, treat or in any other way
deal with Hazardous Substances in the environment; (ii) prevent any Release of
Hazardous Substances where such Release would violate any Environmental Laws or
would endanger or threaten to endanger public health or welfare or the
environment; or (iii) perform remedial studies, investigations, restoration and
post-remedial studies, investigations and monitoring on, about or in connection
with any of the Owned Properties, Leased Properties or other Assets.
"SCHEDULE I BANK" means a bank under the Bank Act (Canada) listed in
Schedule I thereto.
"SCHEDULE II BANK" means a bank under the Bank Act (Canada) listed in
Schedule II thereto.
"SECURITY" means, at any time, the Security Interests in favour of the
Agent or the Lenders, or both, in the assets and property securing the
obligations of the Borrower, Guarantor and the other Additional Loan Parties
under this Agreement or under any of the other Credit Documents.
"SECURITY DOCUMENTS" means the agreements and other instruments
described in Schedule 5 and any other agreements granting security to the Agent
or the Lenders, or both, for the obligations of the Borrower, Guarantor and the
other Additional Loan Parties under this Agreement or under any of the other
Credit Documents.
"SECURITY INTEREST" means any hypothec, mortgage, pledge, security
interest, assignment, encumbrance, lien, charge or deposit arrangement or any
other arrangement or condition that in substance secures payment or performance
of an obligation and includes the interest of a vendor or lessor under any
conditional sale agreement, capitalized lease or other title retention
agreement.
"SECURITY TRUST INDENTURE" entered into by BT, Hongkong Bank of Canada,
FUR and Montreal Trust Company of Canada dated as of the 17th day of April,
1997.
"SUBORDINATED DEBT" means both (a) the principal amount outstanding at
any time of Debt payable by the Borrower, Guarantor or any of their respective
Subsidiaries (and for the purposes of a Qualifying Acquisition, the relevant
23
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target entity) which is non-cash interest bearing and is subordinate and junior
in right of payment (including the payment of interest thereon) to the payment
in full of the Accommodations Outstanding and all other amounts payable
hereunder and under the other Credit Documents, on terms and conditions
satisfactory to the Agent, acting reasonably; and (b) the FUR Subordinated Debt.
"SUBSIDIARY" means, at any time, as to any Person, any corporation or
other Person, if at such time the first mentioned Person owns, directly or
indirectly, securities or other ownership interests in such corporation or other
Person, having ordinary voting power to elect a majority of the board of
directors or persons performing similar functions for such corporation or other
Person.
"TARGET EBITDA" means, with respect to the target entity of a
Qualifying Acquisition, the Consolidated EBITDA for such target entity
calculated based on all existing contracts and arrangements of such target
entity, adjusted to exclude or include, as the case may be, all specifically
identifiable cost items with respect to the rent payments and employee salaries
which will be eliminated or added under management by the Borrower and such
other cost items as the Agent may approve, acting reasonably, but excluding all
one-time or extraordinary cost or revenue items incurred in connection with such
Qualifying Acquisition. The above components of Consolidated EBITDA (including
all such cost or revenue items) shall be detailed in an officer's certificate of
the Borrower delivered to the Agent prior to effecting the Qualifying
Acquisition and such components shall be calculated for such purposes with
respect to such target entity (instead of with respect to the Borrower,
Guarantor and their respective Consolidated Subsidiaries) on a consolidated and
annualized basis.
"TERM COMMITMENT" means, at any time, in respect of the Term Facility,
Cdn. $33,500,000 (as reduced pursuant to Article 2).
"TERM FACILITY" means the Credit Facility to be made available to the
Borrower hereunder for the purposes set out in Section 2.3.
"TEV" means total enterprise value of a Person determined by
calculating (i) in respect of an acquisition of shares of such Person, the sum
of (x) the implied value of 100% of the outstanding share capital of such
Person, calculated based on the per share price paid for the shares of such
Person acquired as part of such acquisition, and (y) the market value on the
date of such acquisition of the Debt of such Person, less (z) all cash or cash
equivalents of such Person; and (ii) in respect of an acquisition of assets of
such Person (x) the aggregate purchase price paid for such assets, less (y)
without duplication, cash or cash equivalent of such Person acquired by the
Borrower as part of a Qualifying Acquisition.
"TOTAL REMAINING DEBT" means $50,000,000 less all mandatory prepayments
of the Term Facility and the Acquisition Facility made pursuant to Section 2.5.
"TRANSACTION" means the transaction as defined in the recitals above.
"WORKING CAPITAL LINE" means a working capital line of credit not
exceeding $6,500,000 Cdn. provided to the Borrower by a bank from time to time.
2. GENDER AND NUMBER. Any reference in the Credit
Documents to gender shall include all genders, and words importing the
singular number only
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shall include the plural and vice versa.
SECTION 3. HEADINGS. The provisions of a Table of Contents,
the division of this Agreement into Articles and Sections, and the insertion of
headings are for convenience of reference only and shall not affect the
interpretation of this Agreement.
SECTION 4. CURRENCY. All references in the Credit Documents
to dollars, unless otherwise specifically indicated, are expressed in Canadian
currency.
SECTION 5. CERTAIN PHRASES, ETC. In any Credit Document (i)
(y) the words "including" and "includes" mean "including (or includes) without
limitation" and (z) the phrase "the aggregate of", "the total of", "the sum of",
or a phrase of similar meaning means "the aggregate (or total or sum), without
duplication, of"; (ii) except where specifically stated otherwise, whether any
act, occurrence, conduct, event or state of affairs is "material", "adverse" or
"materially adverse" or any grammatical variation of such words, shall be
determined by the Agent, acting reasonably; and (iii) in the computation of
periods of time from a specified date to a later specified date, unless
otherwise expressly stated, the word "from" means "from and including" and the
words "to" and "until" each mean "to but excluding".
SECTION 6. ACCOUNTING TERMS. All accounting terms not
specifically defined in this Agreement shall be construed in accordance with
Generally Accepted Accounting Principles.
SECTION 7. DEEMING PROVISION. Sections in this Agreement
may be properly referred to in other documents, including, without limitation,
the Credit Documents, as numbers 1.1, 1.2, 1.3, 1.4, etc., or alternatively
numbers 1.01, 1.02, 1.03, 1.04, etc.
SECTION 8. RATEABLE PORTION OF ACCOMMODATIONS. References in
this Agreement to a Lender's rateable portion of tions. Advances, Drawings,
Drafts, Banker's Acceptances and Documentary credits or rateable share of
payments of principal, interest, Fees or any other amount payable hereunder,
shall mean and refer to a rateable portion or share as nearly as may be rateable
in the circumstances, as determined in good faith by the Agent. Each such
determination by the Agent shall be prima facie evidence of such rateable share.
SECTION 9. INCORPORATION OF SCHEDULES. The schedules
attached hereto shall, for all purposes hereof, form an integral part of this
Agreement.
SECTION 10. INTERPRETATION. The parties intend that this
Agreement constitutes an amendment and restatement of the Original Credit
Agreement. This Agreement supersedes the Original Credit Agreement relating to
the subject matter hereof. This shall not constitute a novation or
extinguishment of the Original Credit Agreement. The Original Credit
Agreement, as amended and restated hereby, shall remain in full force and
effect and is hereby ratified and confirmed. The Original Credit
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Agreement is hereby amended and restated in its entirety, on the terms
and conditions herein contained.
ARTICLE 2
CREDIT FACILITIES
SECTION 1. AVAILABILITY. (1) The Borrower acknowledges and
confirms that the Original Credit Agreement Debt, which has been advanced prior
to the Closing Date, shall continue to be outstanding as part of the
Accommodations Outstanding hereunder. No indebtedness of the Borrower
outstanding under the Original Credit Agreement is extinguished or discharged
hereby and the principal of any Accommodations Outstanding thereunder shall be
deemed Accommodations Outstanding hereunder with no extinguishment, discharge or
novation.
(2) Subject to the next following sentence, each Lender severally
agrees, on the terms and conditions of this Agreement, to make Accommodations
rateably to the Borrower in accordance with such Lender's Operating Commitment,
Lender's Term Commitment and Lender's Acquisition Commitment. Accommodations
shall be made available as (i) Advances, pursuant to Article 3; (ii) Drawings
pursuant to Article 4; and (iii) Letter of Credit, pursuant to Article 5.
(3) The failure of any Lender to make an Accommodation shall not
relieve any other Lender of its obligation, if any, in connection with such
Accommodation, but no Lender shall be responsible for such other Lender' s
failure in respect of such Accommodation.
(4) The Agent shall give each Lender prompt notice of (i) any
Accommodation Notice received from the Borrower and of each Lender's rateable
portion of any Accommodation; and (ii) any other notice received by it
hereunder.
SECTION 2. COMMITMENTS AND FACILITY LIMITS. (1) The Term
Facility shall not revolve and any amount prepaid or repaid under the Term
Facility cannot be reborrowed and shall reduce the Term Commitment (and each
Lender's Term Commitment), by the amount prepaid or repaid. The Acquisition
Facility shall not revolve and any amount prepaid or repaid under the
Acquisition Facility cannot be reborrowed and shall reduce the Acquisition
Commitment (and each Lender's Acquisition Commitment), by the amount prepaid or
repaid. The Operating Facility shall not revolve.
(2) A conversion from one Type of Accommodation to another Type of
Accommodation shall not constitute a repayment or prepayment hereunder. Subject
to the terms of this Agreement, the Borrower shall have the right at all times
to determine the manner and proportions in which it will utilize the different
Types of Accommodations hereunder.
SECTION 3. USE OF PROCEEDS. (1) The Borrower shall use the
proceeds of any Accommodation under the Operating Facility for the purpose of
(i) supporting its working capital requirements under the Working Capital Line;
(ii) financing costs and expenses associated with this Agreement; (iii) the
issuance of Letters of Credit in accordance with Article 5; and (iv) making
payments in respect of existing Debt.
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(2) The Borrower shall use the proceeds of any Accommodation under the
Term Facility for the purpose of (i) making payments in respect of existing
Debt; and (ii) financing transaction costs and expenses associated with this
Agreement.
(3) The Borrower shall use the proceeds of any Accommodation under the
Acquisition Facility for the purposes of financing Qualifying Acquisitions.
SECTION 4. MANDATORY REPAYMENTS. (1) On the Relevant Repayment
Date, the Operating Facility shall terminate, and all amounts owing, including
fees, with respect to the Operating Facility shall be immediately due and
payable.
(2) Subject to Section 2.9(1), the Borrower shall repay, and there
shall become due and payable on the Relevant Payment Date, the Accommodations
Outstanding under the Term Facility, together with all interest and fees accrued
thereon and all other amounts payable hereunder.
(3) The Borrower shall repay, and there shall become due and payable on
the Relevant Repayment Date, the Accommodations Outstanding under the
Acquisition Facility, together with all interest and Fees accrued thereon and
all other amounts payable hereunder.
(4) The Borrower shall pay or repay on April 16, 2000 all amounts owing
hereunder and not previously paid or repaid.
SECTION 5. MANDATORY PREPAYMENTS. (1) The Borrower shall
prepay Accommodations ments. Outstanding under the Term Facility in accordance
with Section 8.2(d)(iv).
(2) The Borrower shall prepay annually, upon and together with each
delivery of financial statements in accordance with 8.1(a), (i) the
Accommodations Outstanding under the Term Facility; and (ii) provided that the
Accommodations Outstanding under the Term Facility have been paid in full, the
Accommodations Outstanding under the Acquisitions Facility, in each case, in an
amount equal to 50% of the Excess Cash Flow in respect of each such Financial
Year, subject to a maximum amount of 90% of Borrower Excess Cash Flow in each
such Financial Year.
SECTION 6. OPTIONAL PREPAYMENTS AND REDUCTIONS OF
COMMITMENTS. (1) The Borrower may, subject to the provisions of this
Agreement, prepay the Accommodations Outstanding or reduce the respective
Lender's Commitments under either the Term Facility or the Acquisition
Facility, in each case in whole or rateably in part, upon the number of
Business Days' notice to the Agent specified in Schedule 4 stating the
proposed date and aggregate principal amount of the prepayment or reduction,
and if such notice is given the Borrower shall pay the Lenders in accordance
with such notice the amount, if any, by which the Accommodations Outstanding
under such Credit Facility exceed the proposed reduced Term Commitment or
Acquisition Commitment, as the case may be. Each partial prepayment or
reduction shall be in an aggregate principal amount of Cdn. $100,000 or an
integral multiple thereof.
(2) The Borrower may not, pursuant to this Section 2.6, prepay the
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amount of any Drawing, except on the maturity date for the relevant Bankers'
Acceptances, Drafts or BA Equivalent Notes.
(3) Neither the Acquisition Facility nor the Term Facility is
prepayable after October 16, 1999, subject to payments required to be made under
Section 2.5.
(4) To the extent that optional prepayments are made, and not as
mandated under Section 2.5, on or before October 16, 1999, of either the
Acquisition Facility or the Term Facility, an additional payment by way of a fee
shall be made by the Borrower to the Agent for the account of the appropriate
Lender or Lenders at the time of making such prepayment equal to:
(a) in the case of a prepayment on or before April 16, 1998,
an amount equal to $105,000 Cdn. TIMES the Debt Repayment
Amount DIVIDED by the Total Remaining Debt at such time,
provided that such calculated amount with respect to all such
prepayments shall in no event cumulatively exceed $105,000
Cdn. in aggregate;
(b) in the case of a prepayment after April 16, 1998 but on or
before April 16, 1999, an amount equal to $120,000 Cdn. TIMES
the Debt Repayment Amount DIVIDED by the Total Remaining Debt
at such time, provided that such calculated amount with
respect to all such prepayments shall in no event cumulatively
exceed $120,000 Cdn. in aggregate;
(c) in the case of a prepayment after April 16, 1999 but on or
before October 16, 1999, an amount equal to 0.55 of 1% per
annum of the Debt Repayment Amount calculated for the period
from the Closing Date to the date of such prepayment,
compounded annually.
SECTION 7. FEES. (1) The Borrower shall pay to the Agent
for the account of the Lenders a standby fee of 0.125% per annum on the
unutilized portion of both the Acquisition Facility.
(2) The above standby fee shall be calculated daily in Canadian Dollars
and shall be payable in Canadian Dollars, monthly in arrears on the first
Business Day of each month and on the Relevant Repayment Date.
(3) The Borrower shall pay the fees and other consideration payable
pursuant to the applicable Fee Letters.
SECTION 8. PAYMENTS UNDER THIS AGREEMENT. (1) Unless otherwise
expressly provided in this Agreement, the Borrower shall make any payment
required to be made by it to the Agent or any Lender by depositing the amount of
such payment in the relevant currency to the relevant Payment Account not later
than 2:00 p.m. (Toronto time) on the date such payment is due. The Borrower
shall make each payment to be made hereunder in respect of Accommodations in
Canadian Dollars. The Agent shall cause to be distributed to each Lender,
promptly on the date of receipt by the Agent of each payment on account of the
Accommodations Outstanding or any other amount due to the Lender hereunder, an
amount equal to the amount then due each Lender and, if such distribution is not
so made on such date, shall pay interest thereon to such Lender for each day,
from the date such amount is received by, the Agent until the date of
distribution, at the prevailing interbank rate for late payments. Any amount
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received by the Agent for the account of the Lenders shall be held in trust for
the benefit of the Lenders until such distribution.
(2) Unless otherwise expressly provided in this Agreement, the Agent
shall make any Accommodation or other payment to the Borrower hereunder by
crediting the relevant Borrower's Account (or causing of the Borrower's Account
to be credited) with the amount of such payment in the relevant currency not
later than 1:00 p.m. (Toronto time) on the date such payment is to be made.
(3) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender by the Borrower is not made when due hereunder, to
charge from time to time any amount so due against any or all of the Borrower's
accounts with such Lender.
SECTION 9. APPLICATION OF PAYMENTS AND PREPAYMENT. (1)
All amounts received by the Agent from or on behalf of the Borrower and not
previously applied pursuant to this Agreement shall be applied by the Agent as
follows (i) first, in reduction of the Borrower's obligation to pay any unpaid
interest accrued on the principal amount of Advances or on any other amount
owing hereunder and any Fees which are due and owing; (ii) second, in reduction
of the Borrower's obligation to pay any Claims or Losses referred to in Sections
11.6(2), (3) and (4); (iii) third, in reduction of the Borrower's obligation to
pay any amounts due and owing on account of any unpaid principal amount of
Advances which is due and owing; (iv) fourth, in reduction of the Borrower's
obligation to pay any other unpaid Accommodations Outstanding which are due and
owing; (v) fifth, in reduction of any other obligation of the Borrower under
this Agreement; and (vi) sixth, to the Borrower or such other Persons as may
lawfully be entitled to the remainder, or as any court of competent jurisdiction
may otherwise direct.
SECTION 10. COMPUTATIONS OF INTEREST AND FEES. (1) All
computations of interest shall be made by the Agent Fees. taking into account
the actual number of days occurring in the period for which such interest is
payable pursuant to Section 3.3 and on the basis of a 365/366 day year.
(2) All computations of fees shall be made by the Agent on the basis of
a 365/366 day year, taking into account the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
fees are payable, adjusted, in the case of the Fee payable pursuant to Section
2.7, to the date of any reduction in the Acquisition Commitment pursuant to
Section 2.6. The difference between any Fee paid by the Borrower prior to the
date of any such reduction and the amount of the Fee payable by the Borrower
after giving effect to such reduction shall be repaid rateably by the Lenders to
the Borrower promptly upon any such reduction.
(3) For purposes of the Interest Act (Canada), (i) the principle of
deemed reinvestment of interest does not apply to any interest calculation under
this Agreement; and (ii) the rates of interest stipulated in this Agreement are
intended to be nominal rates and not effective rates or yields.
SECTION 11. PAYMENTS ON MATURITY. On the Relevant Payment
Date, the Borrower will pay to the Agent for the benefit of the Lenders, in
addition to all amounts payable at such time pursuant to this Agreement, an
amount by way of fee equal
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to 0.55 of 1% per annum of the aggregate amounts outstanding under all the
Credit Facilities for the period from the Closing Date to the Relevant Repayment
Date calculated on a daily basis and compounded annually.
ARTICLE 3
ADVANCES
SECTION 1. THE ADVANCES. (1) Each Lender severally agrees,
on the terms and conditions of this Agreement, to make Advances to the Borrower
under the Acquisition Facility from time to time on any Business Day.
(2) Each Borrowing shall consist of Advances made to the Borrower on
the same day rateably by the Lenders. Each Advance shall be in the aggregate
minimum amount and in an integral multiple of the amount set forth in Schedule
4.
SECTION 2. PROCEDURE FOR BORROWING. (1) Subject to waiver at
the discretion of the ing. Agent, each Borrowing shall be made on the number of
days prior notice specified in Schedule 4, given not later than 2:00 p.m.
(Toronto time) by the Borrower to the Agent. Each notice of a Borrowing (a
"Borrowing Notice") shall be in substantially the form of Schedule 1, shall be
irrevocable and binding on the Borrower and shall specify (i) the requested date
of such Borrowing; (ii) the Credit Facility under which such Borrowing is to be
made; and (iii) the aggregate amount of such Borrowing. Upon receipt by the
Agent of funds from the Lenders, and fulfilment of the applicable conditions set
forth in Article 6, the Agent will make such funds available to the Borrower in
accordance with Article 2.
SECTION 3. INTEREST ON ADVANCES. (1) The Borrower shall pay
interest on the unpaid principal amount of each Canadian Prime Rate Advance made
to it from the date of such Canadian Prime Rate Advance until such principal
amount shall be repaid in full subject as provided in the next following
sentence, at a rate per annum equal at all times to the sum of the Canadian
Prime Rate in effect from time to time plus .75 of 1% per annum calculated, on
the daily balance, and payable monthly in arrears (i) on the first Business Day
of each month in each year; and (ii) when such Canadian Prime Rate Advance
becomes due and payable in full. Any amount of principal of or interest on any
such Canadian Prime Rate Advance which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest (both before and
after judgment), from the date on which such amount is due until such amount is
paid in full, payable on demand, at a rate per annum equal to the sum of the
Canadian Prime Rate in effect from time to time and .75 of 1% per annum.
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ARTICLE 4
BANKERS' ACCEPTANCES
SECTION 1. ACCEPTANCES AND DRAFTS. (1) Each Lender severally
agrees, on the terms and conditions of this Agreement and from time to time on
any Business Day prior to the Relevant Repayment Date (i) in the case of a
Lender which is willing and able to accept Drafts, to create acceptances
("BANKERS' ACCEPTANCES") by accepting Drafts and to purchase such Bankers'
Acceptances in accordance with Section 4.3(2); (ii) in the case of a Lender
which is unwilling or unable to accept Drafts, to purchase completed Drafts
(which have not and will not be accepted by such Lender or any other Lender or
Person) in accordance with Section 4.3(2); (iii) in the case of a Lender which
has participated or assigned all or any part of its interest in the Credit
Facilities to a Participant or Assignee which is willing and able to accept
Drafts, to arrange for the creation of Bankers' Acceptances by such Participant
or Assignee and for the purchase of such Bankers' Acceptances by such
Participant or Assignee, to the extent of such participation or assignment, in
accordance with Section 4.3(2); and (iv) in the case of a Lender which has
participated or assigned all or any part of its interest in the Credit
Facilities to a Participant or Assignee which is unwilling or unable to accept
Drafts, to arrange for the purchase by such Participant or Assignee of completed
Drafts (which have not and will not be accepted by such Lender or any other
Lender or Person), to the extent of such participation or assignment, in
accordance with Section 4.3(2).
(2) Each Drawing shall be in a minimum aggregate Face Amount and in an
integral multiple of the amount set forth in Schedule 4, and shall consist of
the creation and purchase of Bankers' Acceptances or the purchase of Drafts on
the same day, in each case for the Drawing Purchase Price, effected or arranged
by the Lenders in accordance with Section 4.3 and their respective Lender's Term
Commitment and Lender's Acquisition Commitment.
(3) If the Agent determines, in good faith, which determination shall
be final, conclusive and binding upon the Borrower and the Lenders, that the
Bankers' Acceptances to be created and purchased or Drafts to be purchased on
any Drawing (upon a conversion or otherwise) will not be created and purchased
rateably by the Lenders (or any of their respective Participants or Assignees)
in accordance with Sections 4.1(2) and 4.3, then the requested Face Amount of
Bankers' Acceptances and Drafts relating to such Drawing shall be reduced to the
nearest lesser amount that will permit such rateable sharing and the amount by
which the requested Face Amount shall have been so reduced shall be converted or
continued, as the case may be, as a Canadian Prime Rate Advance under the Term
Facility or the Acquisition Facility, as the case may be.
SECTION 2. FORM OF DRAFTS. Each Draft presented by the
Borrower (i) shall be in an integral multiple of Cdn. $100,000; (ii) shall be
dated the date of the Drawing; and (iii) shall mature and be payable by the
Borrower (in common with all other Drafts presented in connection with such
Drawing) on a Business Day which occurs approximately 30, 60, 90 or 180 days
after the Drawing Date and on or prior to the Relevant Repayment Date and which
would not conflict with the repayment schedule set out in Section 2.4.
SECTION 3. PROCEDURE FOR DRAWING. (1) Each Drawing shall be
made on notice (a ng. "Drawing Notice") given by the Borrower to the Agent not
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later than 2:00 p.m. (Toronto time) on the number of days notice specified in
Schedule 4. Each Drawing Notice shall be in substantially the form of Schedule
3, shall be irrevocable and binding on the Borrower and shall specify (i) the
Drawing Date; (ii) the Credit Facility under which such Drawing is to be made;
(iii) the aggregate Face Amount of Drafts to be created; and (iv) the contract
maturity date for such Drafts.
(2) Not later than 2:00 p.m. (Toronto time) on an applicable Drawing
Date, each Lender shall (i) complete one or more Drafts in accordance with the
Drawing Notice, accept such Drafts and purchase the Bankers' Acceptances thereby
created for the Drawing Purchase Price; (ii) complete one or more Drafts in
accordance with the Drawing Notice and purchase such Drafts for the Drawing
Purchase Price; (iii) arrange for a Participant or Assignee to complete one or
more Drafts in accordance with the Drawing Notice, to accept such Drafts and to
purchase the Bankers' Acceptances thereby created for the Drawing Purchase
Price; or (iv) arrange for a Participant or Assignee to complete one or more
Drafts in accordance with the Drawing Notice and arrange for such Participant or
Assignee to purchase such Drafts for the Drawing Purchase Price. In each case,
upon receipt of such Drawing Purchase Price and upon fulfilment of the
applicable conditions set forth in Article 6, the Agent shall make such funds
available to the Borrower in accordance with Article 2.
(3) The Borrower shall, at the request of a Lender, issue one or more
non-interest bearing promissory notes (each a "BA EQUIVALENT NOTE"), in such
form as such Lender may specify, in a principal amount equal to the Face Amount
of, and in exchange for, any unaccepted Drafts which such Lender has purchased
or has arranged to have purchased in accordance with Section 4.3(2).
(4) Bankers' Acceptances purchased by a Lender, Participant or Assignee
hereunder may be held by it for its own account until the contract maturity date
or sold by it at any time prior thereto in any relevant market therefor in
Canada, in such Person's sole discretion.
SECTION 4. PRESIGNED DRAFT FORMS. To enable the Lenders to
make Drawings in the manner specified in this Article 4, the Borrower shall
supply each Lender with such number of Drafts as such Lenders may reasonably
request, duly endorsed and executed on behalf of the Borrower. Each Lender shall
exercise such care in the custody and safekeeping of Drafts as it would exercise
in the custody and safekeeping of similar property owned by it. Each Lender
will, upon request by the Borrower, promptly advise the Borrower of the number
and designations, if any, of the uncompleted Drafts then held by it. The
signature of any duly authorized officer of the Borrower on a Draft may be
mechanically reproduced in facsimile and Drafts and Bankers' Acceptances bearing
such facsimile signature shall be binding upon the Borrower as if they had been
manually signed by such officer. Notwithstanding that any of the individuals
whose manual or facsimile signature appears on any Draft as one of such officers
may no longer hold office at the date thereof or at the date of its acceptance
by the Lender hereunder or at any time thereafter, any Draft or Bankers'
Acceptance so signed shall be valid and binding upon the relevant Borrower.
SECTION 5. PAYMENT, CONVERSION OR RENEWAL OF BANKERS'
ACCEPTANCES. (1) Upon the maturity of a Bankers' Acceptance, Draft or BA
Equivalent Note, the Borrower may (i) elect to issue a replacement Bankers'
Acceptance, Draft or BA Equivalent Note by giving a Drawing Notice in accordance
with Section 4.3(1);
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(ii) elect to have all or a portion of the Face Amount of such Bankers'
Acceptance, Draft or BA Equivalent Note converted to an Advance, by giving a
Borrowing Notice in accordance with Section 3.2; or (iii) pay, on or before 2:00
p.m. (local time) on the maturity date for such Bankers' Acceptance, Draft or BA
Equivalent Note, an amount in Canadian Dollars equal to the Face Amount of such
Bankers' Acceptance, Draft or BA Equivalent Note (notwithstanding that a Lender
or any Participant or Assignee may be the holder thereof at maturity). Any such
payment shall satisfy the Borrower's obligations under the Bankers' Acceptances
to which it relates and the relevant Lender shall thereafter be solely
responsible for the payment of such Bankers' Acceptances.
(2) If the Borrower fails to pay any Bankers' Acceptance when due, or
to issue a replacement Bankers' Acceptance, Draft or BA Equivalent Note in the
Face Amount of such Bankers' Acceptance, Draft or BA Equivalent Note pursuant to
Section 4.5(1), the unpaid amount due and payable in respect thereof shall be
converted, as of such date, and without any necessity for the Borrower to give a
Borrowing Notice in accordance with Section 3.2, to a Canadian Prime Rate
Advance made by the Lenders rateably under the applicable Credit Facility and
shall bear interest calculated and payable as provided in Article 3.
SECTION 6. CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES
UNAVAILABLE. (1) If a Lender determines in good faith, which determination shall
be final, conclusive and binding upon the Borrower, and notifies the Agent and
the Borrower that, by reason of circumstances affecting the money market, there
is no market for Bankers' Acceptances, then,
(a) the right of the Borrower to request a Drawing shall be suspended
until such Lender determines that the circumstances causing such suspension no
longer exist and such Lender so notifies the Agent and the Borrower; and
(b) any Drawing Notice which is outstanding shall be cancelled and
the Drawing requested therein shall not be made.
(2) The Agent shall promptly notify the Borrower and the Lenders of the
suspension of the Borrower's right to request a Drawing and of the termination
of any such suspension.
ARTICLE 5
LETTERS OF CREDIT
SECTION 1. LETTERS OF CREDIT. BT which has an Operating
Commitment agrees, on the terms and conditions of this Agreement, to issue (or
arrange for a Participant or Assignee to issue) Letters of Credit denominated in
Canadian dollars, under the Operating Facility, for the account of the Borrower
from time to time on any Business Day prior to the Relevant Repayment Date.
SECTION 2. PROCEDURE FOR ISSUE. (1) Each Issue shall be made
on notice (an "ISSUE NOTICE") given by the Borrower to the Agent not later than
2:00 p.m. (Toronto time) on the number of days notice specified in Schedule 4.
The Issue Notice shall be in substantially the form of Schedule 3A, shall be
irrevocable and binding on the Borrower and shall specify (i) the requested date
of Issue (the "Issue Date"), (ii) the Face Amount of each Letter of Credit,
(iii) the expiration date, and (iv) the name and address of the Beneficiary. The
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Borrower shall not request a maturity date for a Letter of Credit which would be
after the Relevant Repayment Date.
(2) Not later than 2:00 p.m. (Toronto time) on the Issue Date, BT shall
issue (or cause its Participants and Assignees to issue) a Letter of Credit
completed in accordance with the Issue Notice in the appropriate form. Upon
receipt of the Letter of Credit and upon fulfilment of the conditions set forth
in Article 6, the Agent shall deliver the Letters of Credit to or to the order
of the Borrower.
(3) No Letter of Credit shall require that payment against a conforming
draft be made on the same Business Day upon which the draft was presented,
unless such presentation is made before 2:00 p.m. (Toronto time) on such
Business Day.
(4) Prior to the Issue Date, the Borrower shall provide a precise
description of the documents and the verbatim text of any certificates to be
presented by the Beneficiary which, if presented by the Beneficiary, would
require a Lender, Participant or Assignee, as the case may be, to make payment
under the Letter of Credit. BT, Participant or Assignee may require changes in
any such document or certificate.
SECTION 3. FORM OF LETTERS OF CREDIT. Each Letter of Credit
(i) shall be dated the Issue Date, (ii) shall have an expiration date on a
Business Day which occurs no later than the earlier of (x) one year after the
Issue Date, and (y) the Relevant Payment Date; and (iii) shall comply with the
definition of Letter of Credit.
SECTION 4 USE OF LETTERS OF CREDIT. The Borrower shall use
Letters of Credit for the sole purpose of supporting (i) its day to day
operating finance requirements, (ii) the Borrower's workers' compensation
liabilities or directors' and officers' insurance, (iii) the obligations of
third party insurers in any jurisdiction requiring third party insurers, (iv)
Debt of the Borrower in respect of industrial revenue or development bonds or
financings, or (v) performance, payment, deposit or surety obligations of the
Borrower, in any case if required by Law or in accordance with custom and
practice in its industry.
SECTION 5 REIMBURSEMENTS OF AMOUNTS DRAWN. (1) At or
before 2:00 p.m. (Toronto time) on the date specified by a Beneficiary as a
drawing date under a Documentary Credit, the Borrower shall pay to the Lenders
an amount in same day funds equal to the amount to be drawn by the Beneficiary
in Canadian dollars.
(2) If the Borrower fails to pay to BT the amount drawn under any
Letter of Credit, the unpaid amount due and payable shall, automatically as of
such date, and without the necessity for the Borrower to give any Borrowing
Notice pursuant to Section 3.2, be deemed to be a Canadian Prime Rate Advance
advanced by BT upon the basis set out in Section 3.3 above.
SECTION 6 RISK OF LETTERS OF CREDIT. (1) In determining
whether to pay under a Letter of Credit, BT, Participant and Assignee shall be
responsible only to determine that the documents and certificates required to be
delivered under such Letter of Credit have been delivered and that they comply
on their face with the requirements of such Letter of Credit.
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(2) The reimbursement obligation of the Borrower under any Letter of
Credit shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
(i) any lack of validity or enforceability of a Letter of Credit, (ii) the
existence of any claim, set-off, defense or other right which the Borrower may
have at any time against a Beneficiary or any transferee of a Letter of Credit,
the Lender or any other Person, whether in connection with the Credit Documents,
the transactions contemplated therein or any other transaction (including any
underlying transaction between the Borrower and the Beneficiary), (iii) any
draft, demand, certificate or any other document presented with a Letter of
Credit proving to be forged, fraudulent or invalid or any statement in it being
untrue or inaccurate, (iv) the existence of any act or omission or any misuse
of, a Letter of Credit or misapplication of proceeds by the Beneficiary,
including any fraud in any draft, demand, certificate or any other document
presented with a Letter of Credit, (v) payment by BT under the Letter of Credit
against presentation of a demand, draft or certificate or other document which
does not comply with the terms of the Letter of Credit unless such payment
constitutes fraud, gross negligence or wilful misconduct of BT, or (vi) the
existence of a Default or Event of Default.
(3) BT, Participant and Assignee shall be responsible for (i) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
under it or proceeds of it, in whole or in part, which may prove to be invalid
or ineffective for any reason, (ii) errors, omissions, interruptions or delays
in transmission or delivery of any messages by mail, telecopy or otherwise,
(iii) errors in interpretation of technical terms, (iv) any loss or delay in the
transmission of any document required in order to make a drawing, and (v) any
consequences arising from causes beyond the control of the Lender, including the
acts or omissions, whether rightful or wrongful, of any Governmental Entity.
None of the above shall affect, impair, or prevent the vesting of any of the
BT's rights or powers under this Agreement. Any action taken or omitted by BT,
Participant or Assignee under or in connection with any Letter of Credit or the
related certificates, if taken or omitted in good faith, shall not put BT,
Participant or Assignee under any resulting liability to the Borrower provided
that BT, Participant or Assignee acts in accordance with the standards of
reasonable care specified in the UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 Revision), ICC Publication 500 (or any replacement publication).
SECTION 7 FEES. (1) The Borrower shall pay to BT, a Fee equal
to .125 of 1% per annum of its Face Amount, for the period during which a Letter
of Credit is outstanding. Such Fee shall be calculated daily and payable in
advance on the Issue Date in Canadian dollars and shall be non-refundable.
(2) The Borrower shall pay to BT a Fee equal to 1.625% per annum for
the period during which a Letter of Credit is outstanding. Such Fee shall be
calculated, on a 365/366 day year basis based on the daily total utilization by
the Borrower of its Working Capital Line to the extent it is supported by a
Letter of Credit issued hereunder, and payable in arrears on the 15th day of
each month with respect to the immediately preceding calendar month.
(3) The Borrower shall pay to BT, upon the issuance, amendment or
transfer of each Letter of Credit issued by BT and each drawing made thereunder,
BT's standard and prevailing documentary and administrative charges for issuing,
amending, transferring or drawing under, as the case may be,
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Letters of Credit of similar amount, term and risk.
SECTION 8 REPAYMENTS. (1) If the Borrower shall be required to
repay the Accommodations pursuant to Article 2 or Article 9, then the Borrower
shall pay to BT, to the extent required in those Articles, an amount equal to
BT's, Participant's or Assignee's contingent liability in respect of (i) any
outstanding Letter of Credit, and (ii) any Letter of Credit which is the subject
matter of any order, judgment, injunction or other such determination (a
"JUDICIAL ORDER") restricting payment under and in accordance with such Letter
of Credit or extending BT's, Participant's or Assignee's liability under such
Letter of Credit beyond its stated expiration date. Payment in respect of each
Letter of Credit shall be due in Canadian dollars.
(2) BT, Participant or Assignee shall, with respect to any Letter
of Credit, upon the later of:
(a) the date on which any final and non-appealable order,
judgment or other such determination has been
rendered or issued either terminating the applicable
Judicial Order or permanently enjoining BT,
Participant or Assignee from paying under such Letter
of Credit; and
(b) the earlier of (i) the date on which either (x) the
original counterpart of the Letter of Credit is
returned to BT, Participant or Assignee for
cancellation, or (y) BT, Participant or Assignee is
released by the Beneficiary from any further
obligations, and (ii) the expiry (to the extent
permitted by any applicable Law) of the Letter of
Credit,
pay to the Borrower an amount equal to the difference between the amount paid to
BT, Participant or Assignee pursuant to Section 5.8(1) and the amounts paid by
BT, Participant or Assignee under the Letter of Credit.
ARTICLE 6
CONDITIONS OF LENDING
SECTION 1 CONDITIONS PRECEDENT TO THE INITIAL ACCOMMODATION.
The obligation of each Lender to make its initial Accommodation under the Credit
Facilities on or after the date of this Amended and Restated Credit Agreement is
subject to (i) the conditions precedent in Section 6.2; and (ii) the condition
precedent that the Agent and the Lenders shall be satisfied with, or the
Borrower and the Additional Loan Parties shall have delivered to the Agent, as
the case may be, on or before the day of such initial Accommodation, the
following, in form, substance and dated as of a date satisfactory to the Lenders
and their counsel, registered, where applicable, as deemed appropriate by such
counsel, and in sufficient quantities for each Lender:
(a) a certified copy of (i) the charter documents and by-laws of the
Borrower and each Additional Loan Party; (ii) the resolutions of the board of
directors (or any duly authorized committee thereof) of the Borrower and of each
of the Additional Loan Parties approving the borrowing and other matters
contemplated by this Agreement and approving the entering into of all other
Credit Documents to which it is a party and the completion of all transactions
contemplated thereunder; and (iii) all other instruments evidencing necessary
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corporate action of the Borrower and the Additional Loan Parties and of required
Authorizations, if any, with respect to such matters;
(b) a certificate of an officer of the Borrower and each Additional
Loan Party certifying the names and true signatures of its officers authorized
to sign this Agreement and the other Credit Documents;
(c) a certificate of status, compliance, good standing or like
certificate with respect to the Borrower and each Additional Loan Party issued
by the appropriate government officials of the jurisdiction of its incorporation
and of each jurisdiction in which it owns any material assets or carries on any
material business;
(d) the Credit Documents;
(e) favourable opinions of counsel to the Borrower and each of the
Additional Loan Parties in the form and substance satisfactory to the Agent;
(f) satisfactory review by the Agent of all corporate searches
undertaken against the Borrower and each of the Additional Loan Parties;
(g) evidence satisfactory to the Agent as to the shareholdings in the
capital of the Borrower;
(h) the Agent shall have received payment of all fees and reimburseable
expenses to the date hereof;
(i) the Agent shall be satisfied, acting reasonably, that no material
adverse change in the financial condition, business, operations or otherwise of
the Borrower, the Guarantor and their respective Subsidiaries, taken as a whole,
has occurred;
(j) pro-forma balance sheets of Holdco 1, Holdco 2 and the Guarantor
provided under the certificate of an officer of the applicable corporation;
(k) the Agent shall be satisfied in its sole judgment that all
necessary actions have been taken to complete the Transaction, on terms
satisfactory to the Agent, and the recapitalization of the Borrower and various
subsidiaries and affiliates and shall be satisfied with the terms and conditions
of all applicable documentation including the Ancillary Agreement and the
Security Trust Indenture and any other documents entered into by BT in
connection with this transaction;
(l) satisfaction of the Agent and its legal counsel with the validity
and enforceability of the Security Documents; and
(m) such other closing documents, instruments and legal opinions in
respect to the Transaction or otherwise as the Agent or its counsel may
reasonably require.
SECTION 2. CONDITIONS PRECEDENT TO ALL ACCOMMODATIONS.
(1) The obligation of each Lender to make Accommodations or otherwise give
effect to any Accommodation Notice hereunder shall be subject to the conditions
precedent that on the date of such Accommodation Notice and Accommodation, and
after giving effect thereto and to the application of any proceeds therefrom,
(i) in the case of Accommodations (other than conversions or renewals of
Drawings under Section 4.5, the Continuing Representations are,
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subject to the next following sentence, true and correct on and as of such date,
all as though made (unless such representation relates only to a specified date)
on and as of such date; (ii) no event or condition has occurred and is
continuing, or would result from such Accommodation or giving effect to such
Accommodation Notice, which constitutes a Default or an Event of Default; and
(iii) such Accommodation, or otherwise giving effect to such Accommodation
Notice, will not violate any applicable Law then in effect. If a Continuing
Representation not qualified by a Material Adverse Effect standard is not true
and correct for the purposes of this Section 6.2, the condition precedent
described in item (i) above shall be deemed to have been satisfied provided that
no event or circumstance has arisen subsequent to the Closing Date which would
result in such Continuing Representation not being true and correct and which
could reasonably be expected to have a Material Adverse Effect on and as of such
date, as though made (unless such representation relates only to a specified
date) on and as of such date.
(2) Each of the giving of any Accommodation Notice by the Borrower and
the acceptance by the Borrower of any Accommodation shall be deemed to
constitute a representation and warranty by the Borrower that, on the date of
such Accommodation Notice or Accommodation, as the case may be, and after giving
effect thereto and to the application of any proceeds therefrom, the statements
set forth in Section 6.2(1) are true and correct.
SECTION 3 ACQUISITION FACILITY. The obligation of the Lenders
to make Accommodations under the Acquisition Facility shall, in addition to the
conditions precedent set out in Sections 6.1 and 6.2 hereof, be subject to the
additional conditions precedent that on or prior to the date of any proposed
Qualifying Acquisition:
(a) if the proposed Qualifying Acquisition is for the purchase of
shares of a corporation representing less than 100% of the issued and
outstanding shares of such corporation, the Borrower shall have provided to the
Agent a confirmation, signed by an officer acceptable to the Agent, certifying
that the Qualifying Shareholder Arrangements are, or within 30 days of the
Closing Date of such acquisition, shall be, in place in respect of such
corporation and shall deliver to the Agent, as soon as reasonably possible
thereafter, a certified copy of such Qualifying Shareholder Arrangements;
(b) the Borrower shall have provided to the Agent for the benefit of
the Lenders (x) in the case of a proposed acquisition of assets other than
shares in the capital of a corporation, a first ranking Security Interest on the
assets being acquired subject to Permitted Encumbrances, if any, Encumbrances
which may be consented to by the Agent, acting reasonably, and Encumbrances on
real property being acquired pursuant to such Qualifying Acquisition which are
uneconomic to discharge (provided that the aggregate of the Debt incurred in
respect of the Accommodation under the Acquisition Facility used to finance such
acquisition and the Debt related to such Encumbrances is not greater than 5.0 x
Target EBITDA) and, (y) in the case of a proposed acquisition of assets
comprising shares in the capital of a corporation, (i) an unconditional
guarantee of the corporation being acquired of all of the obligations of the
Borrower under the Credit Documents or, in the case of the acquisition of a
corporation incorporated other than under the laws of Canada or under the laws
of a province where, in each case, the ability of such corporation to grant a
full and unconditional guarantee the obligations of the Borrower under the
Credit Documents is restricted, a guarantee of such corporation of the
obligations of the Borrower under the Credit Documents to the Lenders limited to
a maximum amount which such corporation has the power
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and authority to guarantee; (ii) a first ranking Security Interest securing the
obligations of such corporation under such guarantee on all of the assets of the
acquired corporation, subject to Permitted Encumbrances, if any, Encumbrances
which may be consented to by the Agent, acting reasonably, and Encumbrances on
real property being acquired pursuant to such Qualifying Acquisition which is
uneconomic to discharge (provided that the aggregate of the Debt incurred in
respect of the Accommodation under the Acquisition Facility used to finance such
acquisition and the Debt related to such Encumbrances is not greater than 5.0 x
Target EBITDA); and (iii) a pledge of such shares, all in form and substance
satisfactory to the Agent, acting reasonably in all cases, together with an
opinion satisfactory to the Agent, acting reasonably;
(c) the Borrower shall have provided a certificate of an officer of
the Borrower as contemplated by the definition of Target EBITDA;
(d) no Default or Event of Default shall have occurred or be continuing
or will result after giving effect to the proposed acquisition, and without
limiting the generality of the foregoing, after completion of any proposed
acquisition, the Borrower will remain in compliance with the provisions of
Section 8.3;
(e) the Borrower shall have delivered to the Agent with respect to and
as it relates to the Persons involved in the Qualifying Acquisition, the
documents set forth in Section 6.1(a), (b) and (c); and
(f) the Borrower shall have delivered to the Agent (i) environmental
audits as may be reasonably required by the Agent; (ii) landlord consents and
acknowledgements for all Leases, other than Leases entered into in connection
with the operation of parking lots, in form and substance satisfactory to the
Agent, acting reasonably, if any, as may be required by the Agent; and (iii)
non-disturbance agreements from any mortgagees registered on title to any real
property owned by the corporation, the assets or shares of which are being
acquired by the Borrower.
SECTION 4. NO WAIVER. The making of an Accommodation or
otherwise giving effect to any Accommodation Notice hereunder, without the
fulfilment of one or more conditions set forth in Section 6.1, 6.2 or 6.3, shall
not constitute a waiver of any such condition and the Agent and the Lenders
reserve the right to require fulfilment of such condition in connection with any
subsequent Accommodation Notice or Accommodation.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 1. REPRESENTATIONS AND WARRANTIES. Each of the
Borrower and Guarantor represents and warrants with respect to itself and its
Subsidiaries to each Lender, acknowledging and confirming that each Lender is
relying thereon without independent inquiry in entering into this Agreement and
providing Accommodations hereunder, that:
(a) INCORPORATION AND QUALIFICATION. Each of the Borrower, Guarantor
and the other Additional Loan Parties is a corporation duly
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incorporated and validly existing under the laws of the jurisdictions as set
forth in Schedule 18 and is duly qualified, licensed or registered to carry on
business under the Laws applicable to it in all jurisdictions in which the
nature of its Assets or business makes such qualification necessary except where
failure to be so qualified would not have a Material Adverse Effect.
(b) CORPORATE POWER. The Borrower, Guarantor and each of the other
Additional Loan Parties have all requisite corporate power and authority to (i)
own and operate its properties and Assets and to carry on its business as now
being conducted by it; and (ii) to enter into and perform its obligations under
this Agreement and the other Credit Documents to which it is a party.
(c) CONFLICT WITH OTHER INSTRUMENTS. The execution and delivery of the
Credit Documents by the Borrower, Guarantor and each other Additional Loan Party
which is a party thereto and the performance by the Borrower and each Additional
Loan Party of their respective obligations thereunder and compliance with the
terms, conditions and provisions thereof, will not (i) conflict with or result
in a breach of any of the terms, conditions or provisions of (t) its constating
documents or by-laws, (u) any applicable law, rule or regulation having the
force of Law where failure to comply would have a Material Adverse Effect, (v)
any contractual restriction binding on or affecting it or its properties where
failure to comply would have a Material Adverse Effect, or (w) any judgment,
injunction, determination or award which is binding on it; or (ii) result in,
require or permit (x) the imposition of any Encumbrance (other than a Permitted
Encumbrance) in, on or with respect to the properties now owned by it (other
than pursuant to the Security Documents), (y) the acceleration of the maturity
of any Debt of the Borrower or any Additional Loan Party binding on or affecting
it, or (z) any third party to terminate or acquire rights under any Material
Agreement.
(d) AUTHORIZATION, GOVERNMENTAL APPROVALS, ETC. The execution and
delivery of each of the Credit Documents by the Borrower, Guarantor and each
other Additional Loan Party which is a party thereto and the performance by the
Borrower, Guarantor and each other Additional Loan Party of their respective
obligations hereunder and thereunder have been duly authorized by all necessary
corporate action and no Authorization, under any applicable Law, and no
registration, qualification, designation, declaration or filing with any
Governmental Entity, is or was necessary in connection with the execution of the
Credit Documents or the performance thereof, except (i) such Authorizations as
have been obtained and are in full force and effect, unamended, at the date
hereof and (ii) where failure to obtain such Authorization would not have a
Material Adverse Effect.
(e) EXECUTION AND BINDING OBLIGATION. This Agreement and the other
Credit Documents have been duly executed and delivered by the Borrower,
Guarantor and each other Additional Loan Party which is a party thereto and
constitute legal, valid and binding obligations of the Borrower, Guarantor and
each other Additional Loan Party which is a party thereto, enforceable against
it in accordance with their respective terms, subject to (i) applicable Laws
relating to bankruptcy, insolvency, reorganization, moratorium or creditors'
rights generally; and (ii) the discretion that a court may exercise in the
granting of equitable remedies.
(f) CONDUCT OF BUSINESS. Since the date of the last audited
statements of the Borrower, the Business has been carried on in the ordinary
course.
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(g) LOCATION OF BUSINESS. Except as notified to the Agent, the only
jurisdictions (or registration districts within such jurisdictions) in which the
Borrower or any of its Subsidiaries has any place of business or stores any
tangible personal property having a value in excess of $50,000 are as set forth
in Schedule 7.
(h) AUTHORIZATIONS, ETC. The Borrower, Guarantor and each of their
respective Subsidiaries possess all Authorizations of federal, provincial and
local governments and regulatory authorities as may be necessary to properly
conduct the Business, except where the failure to obtain such Authorizations
would not have a Material Adverse Effect.
(i) TRADEMARKS, PATENTS, ETC. To the best knowledge of the Borrower and
Guarantor, the Borrower, Guarantor and each of their respective Subsidiaries
possesses all the trademarks, trade names, copyrights, patents, licences, or
rights in any thereof, material to the conduct of the Business as now conducted
and presently proposed to be conducted. To the best knowledge of the Borrower
and Guarantor, neither it nor any of its Subsidiaries is infringing or, as of
the date hereof, is alleged to be infringing on the rights of any Person with
respect to any patent, trademark, trade name, copyright (or any application or
registration respecting any thereof), discovery, improvement, process, formula,
know-how, data, plan, specification, drawing or the like.
(j) OWNERSHIP OF PROPERTY. (A) Each of the Borrower, Guarantor and
their respective Subsidiaries owns all of its Assets with good and marketable
title thereto, free and clear of all Encumbrances, except for Permitted
Encumbrances. (B) None of the Borrower, Guarantor or any of their respective
Subsidiaries owns any real property other than the Owned Properties and is not
bound by any agreement to own or lease any real property except for the Leases
and except as disclosed quarterly in the Compliance Certificate.
(k) LEASED PROPERTIES. Each Lease in respect of the Leased Properties,
as it applies to the Borrower, Guarantor or any of their respective
Subsidiaries, is in good standing in all material respects and all material
amounts owing thereunder having been paid by the Borrower, Guarantor or their
respective Subsidiaries.
(I) USE OF LANDS. Except as set forth in Schedules 9 and 10,
respectively, the uses to which the Owned Properties and, to the actual
knowledge of the Borrower or Guarantor, the Leased Properties have been put are
not in material breach of any Environmental Laws or other Laws or official
plans.
(m) WORK ORDERS. There are no outstanding work orders requiring, in
aggregate, expenditures exceeding $50,000 relating to the Owned Properties from
or required by any police or fire department, sanitation, health, environmental
or factory authorities or from any other federal, provincial or municipal
authority, nor are any matters relating to the Owned Properties under discussion
with any such departments or authorities relating to work orders which could
reasonably be expected to result in expenditures exceeding $50,000.
(n) EXPROPRIATION. As at the date hereof, no part of the Owned
Properties or the Buildings and Fixtures located thereon has been taken or
expropriated by any federal, provincial, municipal or other competent authority
nor has any written notice or proceeding in respect thereof been delivered to
the Borrower, Guarantor or any of their respective Subsidiaries nor is the
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Borrower or Guarantor aware of any intent or proposal to give any such notice or
commence any proceedings.
(o) ENCROACHMENTS. Except for Permitted Encumbrances or as specified in
Schedule 9, to the knowledge of the Borrower or Guarantor, the Buildings and
Fixtures are located entirely within the Owned Properties in conformity with
applicable set-back and coverage requirements and no dwellings of abutting
owners encroach upon the Owned Properties.
(p) COMPLIANCE WITH LAWS. The Borrower, Guarantor and their respective
Subsidiaries are in compliance with all applicable Laws, non-compliance with
which would result in a Material Adverse Effect.
(q) NO DEFAULT. Neither the Borrower, Guarantor nor any of their
respective Subsidiaries is in violation of its constating documents or by-laws.
(r) NO VIOLATION OF AGREEMENTS. None of the Borrower, Guarantor or
any of their respective Subsidiaries is in material default under any indenture,
mortgage, deed of trust or other similar instrument to which it is a party or by
which it or any of its property may be bound.
(s) SUBSIDIARIES, ETC. The only Subsidiaries of the Borrower and
Guarantor are set forth in Schedule 12. The only Subsidiaries which have net
asset values or revenues, in either case, greater than $50,000 are Additional
Loan Parties. Such Subsidiaries are wholly-owned except as set out in Schedule
12, and no other Person has any interest in any of the Subsidiaries that is not
disclosed in Schedule 12. Except for those affiliates of the Borrower and
Guarantor set forth on Schedule 12 which are not Subsidiaries of the Borrower
and Guarantor, neither the Borrower nor Guarantor does owns or holds any shares
of, or any other interest in, any other Person other than Permitted Marketable
Shares.
(t) NO BURDENSOME AGREEMENTS. Neither the Borrower, Guarantor nor any
of their respective Subsidiaries is a party to any agreement or instrument or
subject to any restriction (including any restriction set forth in its
constating documents or by-laws) which could reasonably be expected to have a
Material Adverse Effect.
(u) NO LITIGATION. As of the closing date, all material actions, suits
and proceedings to which the Borrower, Guarantor or any of their respective
Subsidiaries are a party and for which the Borrower, Guarantor or any of their
Subsidiaries has been served notice are set forth on Schedule 19. Except as
disclosed in Schedule 19, there are no actions, suits or proceedings pending,
taken or, to the Borrower's or Guarantor's knowledge, threatened, before or by
any Person in Canada or elsewhere, whether or not having the force of law, and
to the actual knowledge of the Borrower and Guarantor no law or regulation which
may affect the Borrower, Guarantor or any of their respective Subsidiaries has
been enacted, promulgated or applied which challenges, or to the actual
knowledge of the Borrower and Guarantor, has been proposed, which may challenge
the validity of the transactions contemplated under the Credit Documents or
which could be reasonably anticipated to have a Material Adverse Effect.
(v) EXISTING SECURITY INTERESTS. The Existing Security Interests
relate solely to (i) Purchase Money Mortgages; (ii) the Owned Properties; and
(iii) as otherwise described in Schedule 11.
(w) PENSION PLANS. Neither the Borrower, Guarantor nor any of their
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respective Subsidiaries has ever maintained or contributed to any pension plans
or beneficial plans including, without limitation, (i) a multi-employer plan as
defined under Section 3(37) of ERISA; (ii) a defined benefit plan as defined
under Section 3(35) of ERISA; or (iii) a plan to which Section 302 of ERISA or
Section 417 of the Internal Revenue Code of the United States of America
applies.
(x) MATERIAL AGREEMENTS. Neither the Borrower, Guarantor nor any of
their respective Subsidiaries is a party or otherwise subject to or bound or
affected by any agreement or instrument which is material to the Business,
operations, results of operations, assets, liabilities or financial condition of
the Borrower, Guarantor or any of their respective Subsidiaries taken as a whole
("MATERIAL AGREEMENT") except as set out in Schedule 13 or as notified to the
Agent. Except as set forth in Schedule 13 or as notified to the Agent, all such
Material Agreements are in full force and effect, unamended, and none of the
Borrower, Guarantor or any such Subsidiary, or to the best of the Borrower's or
Guarantor's knowledge, any other party to any Material Agreement is in material
default with respect thereto.
(y) BOOKS AND RECORDS. All books and records of the Borrower, Guarantor
and their respective Subsidiaries have been fully, properly and accurately kept
and completed in accordance with Generally Accepted Accounting Principles and
there are no material inaccuracies or discrepancies of any kind contained or
reflected therein. The Borrower's, Guarantor's and their respective
Subsidiaries' records, systems, controls, data or information are not recorded,
stored, maintained, operated or otherwise wholly or partly dependent upon or
held by any means (including any electronic, mechanical or photographic process,
whether computerized or not) which (including all means of access thereto and
therefrom) are not under the direct control of the Borrower in all material
respects.
(z) TAX LIABILITY. Except as disclosed in Schedule 14, the Borrower,
Guarantor and each of their respective Subsidiaries has filed all tax returns
which are required to be filed and has paid all taxes, interest and penalties,
if any, which have become due pursuant to such returns or pursuant to any
assessment received by it and adequate provision for payment has been made for
taxes not yet due.
(aa) CORPORATE STRUCTURE. Except as notified to the Agent, the only
shareholders of the Borrower, Guarantor and their respective Subsidiaries are as
set forth in Schedule 12. Schedule 12 hereto sets forth the complete particulars
at the date hereof of (i) such shareholders; and (ii) the interest of each
shareholder in the Borrower, Guarantor and their respective Subsidiaries. Except
as described in Schedule 12, none of the shareholders is a party to any
shareholders or other agreement relating to the shares owned by such shareholder
in the Borrower, Guarantor or any of their respective Subsidiaries.
(ab) DISCLOSURE. All (i) forecasts and projections supplied to the
Agent by or on behalf of the Borrower and Guarantor were prepared in good faith,
adequately disclosed all assumptions relevant thereto and are reasonable
estimates (at the date hereof) of the prospects for the Borrower's Business and
the Guarantor's Business respectively; and (ii) other written information
heretofore supplied to the Agent and the Lenders by or on behalf of the Borrower
and Guarantor is true and accurate in all material respects. There is no fact
known to the Borrower or Guarantor which has not been fully disclosed to the
Agent which has had or is reasonably likely to have a Material Adverse
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Effect. There is no change in the business and affairs of the Borrower,
Guarantor or any of their respective Subsidiaries which could reasonably be
anticipated to have a Material Adverse Effect since the date of the last
financial statements delivered to the Lenders.
(ac) COMPLIANCE WITH ENVIRONMENTAL LAWS. To the actual knowledge of
the Borrower and Guarantor, respectively, the Borrower's Business and the
Guarantor's Business have always been and are now being operated, and the Owned
Properties, Leased Properties and other Assets are now and have always been
used by the Borrower, Guarantor and their respective Subsidiaries in material
compliance with all Environmental Laws. Neither the Borrower, Guarantor nor any
of their respective Subsidiaries nor any of their directors or officers, in
such capacity, has ever (i) been convicted of any offense for non-compliance
with any Environmental Laws; (ii) been fined or otherwise penalized for
non-compliance with Environmental Laws; or (iii) settled any prosecution in
respect thereof prior to conviction. Without limiting the generality of the
foregoing:
(1) ENVIRONMENTAL PERMITS. The Borrower, Guarantor and each of
their respective Subsidiaries holds, and has conducted and is
now conducting its business and undertaking in material
compliance with, all material Environmental Permits. All
Environmental Permits are (i) listed in Schedule 8; and (ii)
valid and in full force and effect and no proceeding is
pending or to the actual knowledge of the Borrower, Guarantor
or any of their respective Subsidiaries is threatened which
will review, make subject to limitations or conditions,
suspend, revoke, terminate or limit any of such Environmental
Permits.
(2) DEALING WITH SUBSTANCES. Neither the Borrower, Guarantor nor
any of their respective Subsidiaries has used any of the Owned
Properties, Leased Properties or other Assets or permitted
them to be used to generate, manufacture, refine, treat,
transport, store, handle, recycle, dispose of, deposit,
transfer, produce or process Hazardous Substances or wastes,
except in material compliance with all Environmental Laws.
(3) ENVIRONMENTAL REPORTS. The Borrower, Guarantor and each of
their respective Subsidiaries has made all substantive reports
required by Environmental Laws to all appropriate Governmental
Entities on the happening of all events which are required to
be so reported pursuant to Environmental Laws. The Agent and
the Lenders have been provided with correct and complete
copies of all such substantive reports and correspondence
relating thereto.
(4) RECORD KEEPING. To the extent responsible for record keeping,
the Borrower, Guarantor and each of their respective
Subsidiaries has in all material respects maintained all
environmental and operating documents and records relating to
the Owned Properties, Leased Properties and other Assets and
the Business in the manner and for the periods required by all
Environmental Laws.
(ad) ENVIRONMENTAL LIABILITIES. Neither the Borrower, Guarantor nor
any of their respective Subsidiaries has incurred or is incurring any material
liability pursuant to any Environmental Law. There is no past or present fact,
condition or circumstance relating to the Owned Properties, the other Assets or
the Business or, to the Borrower's or Guarantor's actual knowledge, the Leased
Properties, that could result in any material liability under any Environmental
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Laws in force as of the date this representation and warranty is given or
renewed by the Borrower.
(ae) DISCLOSURE REGARDING PROPERTIES. To the actual knowledge of the
Borrower or Guarantor, none of the Owned Properties, Leased Properties or other
Assets or any other property currently or formerly owned or leased by or under
the charge, management or control of the Borrower, Guarantor or any of their
respective Subsidiaries or their agents and employees (i) has ever been used by
any Person as a landfill site, a waste disposal site, or as a location for the
disposal of Hazardous Substances or waste; (ii) has ever had asbestos, PCB
waste, radioactive substances or underground storage vessels, active or
abandoned, located thereon; or (iii) has ever been subject to a material Release
of any Hazardous Substance by, or caused or permitted by, the Borrower,
Guarantor or any of their respective Subsidiaries.
(af) REMEDIAL ACTION. No Remedial Action is presently being taken by
the Borrower, Guarantor or any of their respective Subsidiaries and no
Environmental Notice has been received by the Borrower, Guarantor or any of
their respective Subsidiaries nor to the actual knowledge of the Borrower or
Guarantor are there any grounds which could reasonably be expected to give rise
to an Environmental Notice that any Remedial Action is required to be taken by
the Borrower, Guarantor or any of their respective Subsidiaries as a condition
of continued compliance by the Borrower, Guarantor or any of their respective
Subsidiaries with any Environmental Permits or Environmental Laws.
SECTION 2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties herein set forth or contained in any certificates
or documents delivered to the Agent and the Lenders pursuant hereto shall not
merge in or be prejudiced by and shall survive any Accommodation hereunder and
shall continue in full force and effect so long as any amounts are owing by the
Borrower to the Lenders hereunder.
ARTICLE 8
COVENANTS
SECTION 1. AFFIRMATIVE COVENANTS. So long as any amount owing
hereunder remains unpaid or any Lender has any obligation to the Borrower under
this Agreement, and unless consent is given in accordance with Section 11.1
hereof, the Borrower and the Guarantor shall:
(a) FINANCIAL REPORTING. Furnish to the Agent (with sufficient copies
for each of the Lenders) (i) as soon as practicable and in any event within 45
days after the end of each of the first three Financial Quarters in each
Financial Year (y) a consolidated balance sheet of Holdco 1, Holdco 2, the
Borrower, Guarantor and their respective Consolidated Subsidiaries as of the end
of such Financial Quarter, and (z) the related consolidated statements of
earnings and changes in financial position for such Financial Quarter and for
the period commencing at the end of the previous Financial Year and ending with
the end of such Financial Quarter; in each case (except for the statement of
changes in financial position) setting forth in comparative form the figures for
the corresponding Financial Quarter and corresponding portion of the previous
Financial Year; (ii) as soon as practicable and in any event within 120 days
after the end of each Financial Year, a copy of the audited consolidated
financial statements of the Borrower, Guarantor and their
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respective Consolidated Subsidiaries for such Financial Year reported on by the
Borrower's independent auditors and unaudited consolidated financial statements
of Holdco 1 and Holdco 2; (iii) as soon as practicable and in any event no more
than 30 days prior to the end of each Financial Year of the Borrower,
consolidated financial projections, including the balance sheet, income
statement and cash flow statements for each of the next 12 months of the next
Financial Year together with the detailed budget for such Financial Year
providing supplementary detailed schedules as necessary and required by the
Agent; and (iv) together with each such delivery of financial statements, a
Compliance Certificate.
(b) ENVIRONMENTAL REPORTING. Promptly, and in any event within 10 days
of each occurrence, (i) notify the Agent of any proceeding or order before any
Governmental Entity requiring the Borrower, Guarantor or their respective
Subsidiaries to comply with or take action under any Environmental Laws where
such compliance or action requires expenditures in the amount of Cdn. $500,000
or more, the violation thereof involves the possibility of the imposition of a
fine or fines aggregating Cdn. $500,000 or more or the closing of any property
referred to in Schedule 9 or 10 for a period in excess of 48 hours where such
closure would have a Material Adverse Effect; and (ii) notify the Agent of any
material occurrence relating to environmental matters that does not require
notification under (i) above, together with each delivery of financial
statements pursuant to Section 8.1(a). Such material occurrences shall include
occurrences where any of the Borrower, Guarantor or their respective
Subsidiaries (iii) receives a written notice or claim to the effect that the
Borrower, Guarantor or any of their respective Subsidiaries is liable to any
Person as a result of the Release or threatened Release of any Hazardous
Substance into the environment in, on, under or adjacent to the Owned Properties
or Leased Properties; (iv) receives any written notice that the Borrower,
Guarantor or any of their respective Subsidiaries is subject to investigation by
any Governmental Entity evaluating whether any Remedial Action is needed to
respond to the Release or threatened Release of any Hazardous Substance into the
environment in, on, under or adjacent to the Owned Properties or Leased
Properties; (v) receives any written notice that all or any portion of the Owned
Properties or Leased Properties is subject to an order or a Security Interest
under or pursuant to any Environmental Law; (vi) receives any written notice of
a condition with respect to the Owned Properties or Leased Properties which
might reasonably result in a notice of violation by the Borrower, Guarantor or
any of their respective Subsidiaries of any Environmental Law; (vii) receives
any written notice of the commencement of any judicial or administrative
proceeding alleging a violation by the Borrower, Guarantor or any of their
Subsidiaries of any Environmental Law with respect to the Owned Properties or
Leased Properties; or (viii) undertakes any activities as a result of new or
proposed changes to any existing Environmental Law that could have a material
adverse effect on the condition of the Borrower, Guarantor or any of their
respective Subsidiaries.
(c) ADDITIONAL REPORTING REQUIREMENTS. Deliver to the Agent (with
sufficient copies for each of the Lenders) (i) as soon as possible, and in any
event within five days after the occurrence of each Default or Event of Default,
a statement of the chief financial officer or chief operating officer of the
Borrower or any other officer acceptable to the Agent setting forth the details
of such Default or Event of Default and the action which the Borrower or
Guarantor, as the case may be, proposes to take or has taken with respect
thereto; (ii) promptly notify the Agent in writing of any default, or event,
condition or occurrence which with notice or lapse of time, or both, would
constitute a default under any agreement in respect of Debt to which the
Borrower, Guarantor or any of their respective Subsidiaries is a party and
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under which the Borrower, the Guarantor or any such Subsidiary owes
(contingently or otherwise) at least Cdn. $500,000 (or the equivalent amount in
any other currency); (iii) from time to time upon request of the Agent, evidence
of the maintenance of all insurance required to be maintained by Section 8.1(m),
including such originals or copies as the Agent may request of policies,
certificates of insurance, riders and endorsements relating to such insurance
and proof of premium payments; (iv) promptly upon the issuance thereof, copies
of all notices, reports, press releases, circulars, offering documents and other
documents filed with, or delivered to, the British Columbia Securities
Commission or to a similar Governmental Entity in any other jurisdiction with
respect to the Borrower, Guarantor or any of their respective Subsidiaries; (v)
such information as the Agent may require, provided by the lender of the Working
Capital Line, to enable the Agent to calculate the Fee referred to in Section
5.7(2) above on a monthly basis; and (vi) such other information respecting the
condition or operations, financial or otherwise, of the Business, the Borrower,
Guarantor or any of their Subsidiaries as the Agent, on behalf of the Lenders,
may from time to time reasonably request.
(d) CORPORATE EXISTENCE. Preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence except for
Subsidiaries having an asset value and gross revenues, in each case, of less
than $50,000.
(e) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, with the requirements of all applicable Laws,
non-compliance with which would cause a Material Adverse Effect.
(f) STATUS OF ACCOUNTS AND COLLATERAL. With respect to the Collateral
(i) immediately notify the Agent if any account in excess of Cdn. $100,000
arises out of contracts with any Governmental Entity, and execute any
instruments and take any steps reasonably required by the Majority Lenders in
order that all moneys due or to become due with respect to any such Account
shall be assigned to the Lenders and notice thereof be given to any such
Governmental Entity; and (ii) report immediately to the Agent any matters
materially adversely affecting the value, enforceability or collectibility of
any material portions of the Collateral
(g) CREDIT POLICY AND ACCOUNTS RECEIVABLE. Maintain, at all times,
credit policies consistent with good business practices, adhere to such policies
and collect, and cause each of its Subsidiaries to collect, accounts receivable
in the ordinary course of business.
(h) CONDUCT OF BUSINESS. Conduct, and cause each of its Subsidiaries
to conduct, in each Financial Year, no other business other than the Business.
(i) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its and their
properties used or useful in the Business in all material aspects in good
repair, working order and condition (reasonable wear and tear excepted), and in
material compliance with Environmental Laws and, from time to time, make all
needed and proper repairs, renewals, replacements, additions and improvements
thereto, so that the Business may be properly and advantageously conducted at
all times in accordance with prudent business management.
(j) AUDITORS. Appoint and maintain as its auditors a firm of national
standing.
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(k) PAYMENT OF TAXES AND CLAIMS. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon it or
upon the Assets or upon its Subsidiaries; and (ii) all lawful Claims which, if
unpaid, might by Law become an Encumbrance (other than a Permitted Encumbrance)
upon the Assets, except any such tax or Claim which is being contested in good
faith and by proper proceedings.
(l) VISITATION AND INSPECTION. During business hours and upon
reasonable written notice, permit each Lender to visit the properties of the
Borrower or any of its Subsidiaries, and to discuss the affairs, finances and
accounts of the Borrower or any of its Subsidiaries with the officer appointed
as (or performing the functions of) the chief financial officer thereof.
(m) MAINTENANCE OF INSURANCE. Maintain, in respect of itself and each
of its Subsidiaries, insurance at all times with responsible insurance carriers
in such amounts and covering such risks as are usually carried by companies
engaged in similar businesses and owning similar properties in the same general
areas in which the Borrower or such Subsidiaries, as the case may be, operate,
such policies to show the Agent and the Lenders as loss payees or additional
insureds, as their interests may appear thereof under a mortgage clause, where
applicable, in a form approved by the Insurance Bureau of Canada and as soon as
practicable after written request from the Agent, furnish or cause to be
furnished evidence thereof to the Agent. Schedule 6 sets forth a complete list
of the insurance policies carried with respect to the Borrower and its
Subsidiaries as of the Closing Date.
(n) FURTHER ASSURANCES. At its cost and expense, upon request of the
Agent, duly execute and deliver or cause to be duly executed and delivered to
the Agent such further instruments and do and cause to be done such further acts
as may be necessary or proper in the reasonable opinion of the Agent to carry
out more effectually the provisions and purposes of the Credit Documents.
(o) IMPERIAL PARKING (TAIWAN) LIMITED. Cause Imperial Parking (Taiwan)
Limited to grant to the Agent a guarantee and security therefor in form and
substance satisfactory to the Agent, acting reasonably, and deliver such
documentation as the Agent may reasonably request in connection with such
guarantee and security if the sale of the shares of Imperial Parking (Taiwan)
Limited is not completed prior to May 14, 1997.
SECTION 2. NEGATIVE COVENANTS. So long as any amount owing
hereunder remains unpaid or any Lender has any obligation to the Borrower under
this Agreement and, unless consent is given in accordance with Section 11.1
hereof, neither the Borrower nor Guarantor shall:
(a) DEBT. Create, incur, assume or suffer to exist or permit any of its
Subsidiaries to create, incur, assume or suffer to exist any Debt other than (i)
Debt to the Lenders hereunder; (ii) Debt incurred in respect of one or more
Purchase Money Mortgages up to an aggregate outstanding amount, at any time, of
Cdn. $1,000,000 (or the equivalent amount in any other currency); (iii)
Permitted Indebtedness; (iv) subject to Section 8.2(t), FUR Subordinated Debt;
(v) Debt incurred with respect to performance bonds posted, in the ordinary
course of the Business; (vi) Debt Guaranteed by the Borrower of the obligations
of employees in connection with the purchase of shares in the capital of the
Borrower in an amount not to exceed $2,000,000; and (vii) Debt incurred with
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respect to the Working Capital Line up to a maximum of $6,500,000 Cdn.
(b) ENCUMBRANCES. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Encumbrance on any of their respective Assets, other than Permitted
Encumbrances.
(c) MERGERS, ETC. Subject to the next following sentence, enter into,
or permit any of its Subsidiaries to enter into, any transaction (whether by way
of reconstruction, reorganization, consolidation, amalgamation, winding-up,
merger, transfer, sale, lease or otherwise) whereby all or any substantial part
of its undertaking or Assets would become the property of any other Person;
provided however that the Borrower, Guarantor and any other Additional Loan
Party other than Excluded Loan Parties may enter into any such transaction with
each other.
(d) DISPOSAL OF ASSETS GENERALLY. Sell, exchange, lease, release or
abandon or otherwise dispose of, or permit any of its Subsidiaries to sell,
exchange, lease, release or abandon or otherwise dispose of any Assets to any
Person other than (i) any bona fide sales, exchanges, leases, abandonments or
other dispositions in the ordinary course of business, for the purpose of
carrying on the Business; (ii) property or Assets which have no material
economic value in the Business or are obsolete; (iii) assets having a fair
market value of not greater than $100,000 in the aggregate in any Financial
Year; and (iv) assets, including shares of Subsidiaries which are not Additional
Loan Parties provided that 100% of the net proceeds of such dispositions are
applied forthwith as a prepayment of Accommodations Outstanding under the Term
Facility.
(e) TRANSACTIONS WITH INSIDERS. Directly or indirectly (i) purchase,
acquire or lease any material property from; (ii) sell, transfer or lease any
material property to; or (iii) permit any of its Subsidiaries to purchase,
acquire or lease any material property from, or sell, transfer or lease any
material property to, any Person not at Arm's Length with the Borrower,
Guarantor or any of their respective Subsidiaries, except at prices and on terms
not less favourable to the Borrower, Guarantor or such Subsidiary, as the case
may be, than those which would have been obtained in an Arm's Length transaction
with an Arm's Length purchaser; provided that the Borrower and its Subsidiaries,
may (iv) make financial accommodations for employees in connection with housing
loan programs, stock option or purchase plans or other similar employee benefit
programs; and (v) in the case of the Borrower or any Additional Loan Party other
than Excluded Loan Parties, enter into such transactions with each other,
subject to, in each case, the provisions of Section 8.2(i).
(f) CHANGE IN BUSINESS. Make, or permit any of its Subsidiaries to
make, any material change in the nature of the Business.
(g) SHARE CAPITAL. Issue, or permit any of its Subsidiaries to issue,
any shares, or any options, warrants or securities convertible into shares,
except in the case of the Subsidiaries of the Borrower, to the Borrower or to an
Additional Loan Party other than Excluded Loan Parties.
(h) DISTRIBUTIONS. Declare, make or pay, or permit any of its
Subsidiaries to declare, make or pay, any Distributions, except (i) directors'
fees in an aggregate amount not to exceed $30,000; (ii) performance bonuses paid
by the Borrower, Guarantor or any of their respective Subsidiaries in the
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ordinary course of business as part of remuneration for services rendered at
fair market value; (iii) Distributions by an Additional Loan Party or by the
Borrower to the Borrower or to an Additional Loan Party other than Excluded Loan
Parties; (iv) payments made under management or employment agreements entered
into by the Borrower, Guarantor or any of their respective Subsidiaries with
senior employees in the ordinary course of business; (v) loans made to employees
as specified in Section 8.2(e)(iv); (vi) non-cash dividend payments to Onex on
the Borrower's outstanding non-voting common shares held by Onex made by way of
the issue of additional non-voting common shares, provided that such additional
shares have the same characteristics as the non-voting common shares held by
Onex on the date of this Agreement; and (vii) cash interest payments on account
of the FUR Subordinated Debt in amounts permitted pursuant to Section 8.2(t).
(i) INVESTMENTS. Make any loans, incur any obligations (contingent or
otherwise), or make any investments in any Person or permit any of its
Subsidiaries to do the same, except for (i) foreign currency xxxxxx, interest
rate swaps or similar interest rate and currency hedging obligations or
agreements in the ordinary course of good financial management; (ii)
indebtedness and obligations incurred in the ordinary course of business and
Debt permitted under Sections 8.2(a); (iii) those investments contemplated to be
made under the Acquisition Facility in accordance with Section 2.3(3); (iv)
Permitted Marketable Securities; (v) loans permitted under Section 8.2(e) or
(h); (vi) any investment which is covered by paragraph (iii) of the "Qualifying
Acquisition" definition above; or (vii) inter-company loans to or investments in
(x) an Additional Loan Party other than Excluded Loan Parties where, in each
case, such Additional Loan Party is not located outside of Canada; (y) an
Additional Loan Party other than Excluded Loan Parties where, in each case, such
Additional Loan Party is located in the United States, provided that such
inter-company loans are evidenced by a promissory note assigned to the Agent as
security; and (z) other Consolidated Subsidiaries provided that in connection
with any inter-company loans, such Subsidiaries have executed and delivered to
the Agent guarantees of all of the obligations of the Borrower under this
Agreement and/or the other Credit Documents and security over all of their
property and assets together with an opinion with respect thereto satisfactory
to the Agent, acting reasonably.
(j) LEASE-BACKS. Enter into or permit any of its Subsidiaries to enter
into any arrangements, directly or indirectly, with any Person, whereby the
Borrower, Guarantor or such Subsidiary, as the case may be, shall sell or
transfer any property, whether now owned or hereafter acquired, used or useful
in the Business, in connection with the rental or lease of the property so sold
or transferred or of other property for substantially the same purpose or
purposes as the property so sold or transferred.
(k) SUBSIDIARIES. (i) Incorporate or acquire, after the date hereof,
any Subsidiaries or commence to carry on the Business, otherwise than through
the Borrower and its Subsidiaries existing as of the date hereof, except for the
incorporation or acquisition of Subsidiaries in North America or such other
jurisdictions as the Agent may agree to, acting reasonably, where in each case,
such Subsidiary has executed and delivered to the Agent a guarantee of all of
the obligations of the Borrower under this Agreement and/or the other Credit
Documents and security over all of its property and assets satisfactory to the
Agent and accompanied by opinions satisfactory to the Agent, in each case,
acting reasonably, prior to or contemporaneously with such Subsidiary having net
asset values or revenues, in either case, greater than $50,000; or (ii) permit
any Subsidiary to exist after the date hereof having net asset values or
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revenues, in either case, greater than $50,000 unless such Subsidiary is an
Additional Loan Party.
(l) MAINTENANCE AND OWNERSHIP OF SUBSIDIARIES. Except as permitted
under Section 8.2(d), sell or otherwise dispose of any shares of any of its
Subsidiaries or permit any of such Subsidiaries to issue, sell or otherwise
dispose of the shares of any other Subsidiary, except to the Borrower or an
Additional Loan Party other than Excluded Loan Parties.
(m) COMPROMISE OF ACCOUNTS. Compromise or adjust or permit any of its
Subsidiaries to compromise or adjust any material Accounts of the Borrower or
such Subsidiary (or extend the time for payment thereof) or grant any discounts,
allowances or credits thereon, in each case other than in the ordinary course of
business.
(n) BUSINESS OUTSIDE CERTAIN JURISDICTIONS. Have any place of business
or keep or store any tangible properly outside of those jurisdictions (or
registration districts within such jurisdictions), as set forth in Schedule 7
opposite the Borrower, Guarantor or the Subsidiary, as the case may be, or
permit any of its Subsidiaries to do the same (i) except upon 30 days' written
notice thereof to the Agent; and (ii) unless the Borrower, Guarantor or such
Subsidiary has done all such acts and things and executed and delivered all such
deeds, transfers, assignments and instruments as the Agent may reasonably
require for perfecting a Security Interest in such property in favour of the
Agent and the Lenders.
(o) FINANCIAL YEAR. Change its Financial Year.
(p) AMENDMENTS. Allow any amendments to any Material Agreement.
(q) PAYMENTS IN ORDINARY COURSE OF BUSINESS, ETC. Place or permit any
of its Subsidiaries to place any funds on trust with third parties outside of
the ordinary course of business.
(r) ACQUISITION OF REAL PROPERTY. Acquire any real property unless
such real property will be used for the purposes of conducting parking
operations in conjunction with the Business.
(s) ONEX COMMON SHARES. Permit any dividends to be paid to Onex in
respect of the non-voting common shares issued by the Borrower to Onex other
than the dividends in the form of additional non-voting common shares issued by
the Borrower and having the same characteristics as the non-voting common shares
held by Onex on the date of this Agreement.
(t) FUR SUBORDINATED DEBT. Permit any increase in the FUR Subordinated
Debt established under the Borrower's Note Purchase Agreement and the
Guarantor's Note Purchase Agreement, as applicable, unless the same terms apply
to the increased Subordinated Debt and the increase is utilized to make
repayments of the Accommodations Outstanding under the Credit Facilities; or
make interest payments on the outstanding principal amount of the FUR
Subordinated Debt in excess of the required payments set out in the Borrower's
Note Purchase Agreement and the Guarantor's Note Purchase Agreement, as
applicable, provided that the foregoing is not intended to prevent the accrual
of interest on account of the usual operation of the provisions in the
Borrower's Note Purchase Agreement and the Guarantor's Note Purchase Agreement.
SECTION 3. FINANCIAL COVENANTS.
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So long as any amount owing hereunder remains unpaid or any Lender has any
obligation to the Borrower under this Agreement, and unless consent is given in
accordance with Section 11.1 hereof, the Borrower shall:
(a) MAINTENANCE OF NET WORTH. Ensure that, on the last day of each
Financial Year, calculated as at such day, the aggregate Consolidated Net Worth
of Holdco 1, Holdco 2 and their respective Consolidated Subsidiaries is at least
an amount equal to the sum of Cdn. $50,000,000 determined in accordance with
Generally Accepted Accounting Principles.
(b) MAINTENANCE OF DEBT FOR BORROWED MONEY TO NET WORTH RATIO. Ensure
that, as at the last day of each Financial Quarter, the ratio, calculated as at
such day, of the aggregate Consolidated Indebtedness to the aggregate
Consolidated Tangible Net Worth of Holdco 1, Holdco 2 and their respective
Consolidated Subsidiaries is not more than 0.75:1.
(c) MAINTENANCE OF INTEREST COVERAGE RATIO. Ensure that Holdco 1,
Holdco 2 and their respective Consolidated Subsidiaries have, as at the end of
each Financial Quarter, a minimum Interest Coverage Ratio of 2.75:1.
(d) MAINTENANCE OF LEVERAGE RATIO. Ensure that Holdco 1, Holdco 2
and their respective Consolidated Subsidiaries have, as at the end of each
Financial Quarter a Leverage Ratio of not more than 5.00:1.
(e) MAINTENANCE OF PARKING CONTRACTS. Ensure the existence on a
consolidated basis on the last day of each Financial Quarter of an aggregate of
at least 1,200 Consolidated Parking Contracts.
ARTICLE 9
EVENTS OF DEFAULT
SECTION 1. EVENTS OF DEFAULT. If any of the following events
(each an "Event of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay any amount of Accommodations
Outstanding when such amount becomes due and payable hereunder
and in any case, such failure shall remain unremedied for two
Business Days;
(b) the Borrower shall fail to pay any interest or Fees or any
other amounts payable when the same becomes due and payable
hereunder and, in any case, such failure shall remain
unremedied for a period of five Business Days;
(c) any representation or warranty or certification made or deemed
to be made by the Borrower, Guarantor or any other Additional
Loan Party or any director or officer thereof in this
Agreement or any other Credit Document shall prove to have
been incorrect in any material respect when made or deemed to
be made; and, if the circumstances giving rise to such
incorrect representation or warranty are capable of
modification or rectification (such that, thereafter such
representation or warranty would be correct), such
representation or warranty remains uncorrected for a period of
30 days;
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(d) the Borrower or the Guarantor shall fail to perform, observe
or comply with any of the covenants contained in Sections
8.2(c), (g), (h), (k), (l) or Section 8.3;
(e) the Borrower or Guarantor shall fail to perform, observe or
comply with any of the covenants contained in Sections 8.2(a),
(b), (d), (e), (f), (i), (j), (m), (n), (o), (p), (q) and (r),
(s) and (t) and such failure shall remain unremedied for 30
days, provided that the circumstances giving rise to such
failure are capable of rectification;
(f) the Borrower or Guarantor shall fail to perform, observe or
comply with any of the covenants contained in Section 8.1
(except Section 8.1(n)) and such failure shall remain
unremedied for 30 days;
(g) the Borrower, Guarantor or any other Additional Loan Party
shall fail to perform or observe any other term, covenant or
agreement contained in any Credit Document to which it is a
party and such failure shall remain unremedied for 45 days
following written notice thereof by the Agent to the Borrower;
(h) the Borrower or any of its Subsidiaries shall fail to pay the
principal of or premium or interest on any Debt of the
Borrower or such Subsidiary, as applicable, (excluding any
Debt hereunder) which is outstanding in an aggregate amount
exceeding $500,000 Cdn. (or the equivalent amount in any other
currency), when such amount becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration,
demand or otherwise) and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt or otherwise agreed to in
writing by the relevant creditor; or any other event shall
occur or condition shall exist, and shall continue after the
applicable grace period, if any, specified in any agreement or
instrument relating to any such Debt, if the effect of such
event is to accelerate, or permit the acceleration of such
Debt, or any such Debt shall be declared to be due and payable
prior to the stated maturity thereof;
(i) the, Guarantor or any of its Subsidiaries shall fail to pay
the principal of or premium or interest on any Debt of the
Guarantor or such Subsidiary, as applicable, (excluding any
Debt hereunder) which is outstanding in an aggregate amount
exceeding $1,500,000 Cdn. (or the equivalent amount in any
other currency), when such amount becomes due and payable
(whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt or
otherwise agreed to in writing by the relevant creditor; or
any other event shall occur or condition shall exist, and
shall continue after the applicable grace period, if any,
specified in any agreement or instrument relating to any such
Debt, if the effect of such event is to accelerate, or permit
the acceleration of such Debt, or any such Debt shall be
declared to be due and payable prior to the stated maturity
thereof;
(j) the Borrower, Guarantor or any of their respective
Subsidiaries shall fail to perform or observe any material
term, covenant or agreement contained in any Material
Agreement on its part to be
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performed or observed and the effect of such failure is that
such material contract is terminated; or any Material
Agreement shall be terminated or revoked or permitted to lapse
(other than as approved by the Agent), and, in each case, such
termination or revocation or lapse has, or is reasonably
likely to have, a Material Adverse Effect;
(k) the Borrower, Guarantor or any other Additional Loan Party
shall (i) become insolvent or generally not pay its debts as
such debts become due; (ii) admit in writing its inability to
pay its debts generally, or shall make a general assignment
for the benefit of creditors; (iii) institute or have
instituted against it any proceeding seeking (x) to adjudicate
it a bankrupt or insolvent, (y) any liquidation, winding-up,
reorganization, arrangement, adjustment, protection, relief or
composition of it or its Debts under any Law relating to
bankruptcy, insolvency or reorganization or relief of debtors,
or (z) the entry of an order for relief or the appointment of
a receiver, trustee or other similar official for it or for
any substantial part of its Assets, and in the case of any
such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions sought
in such proceeding (including the entry of an order for relief
against it or the appointment of a receiver, trustee,
custodian or other similar official for it or for any
substantial part of its Assets) shall occur, or (iv) take any
corporate action to authorize any of the foregoing actions;
(l) any judgment or order for the payment of money in excess of
$500,000 shall be rendered against the Borrower, Guarantor or
any of their respective Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and such proceedings have
not been discontinued, dismissed or settled; or (ii) there
shall be any period of fifteen consecutive days during which a
stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect;
(m) the Borrower, Guarantor or any of their respective
Subsidiaries incurs any Environmental Liability and Costs, or
is subject to a final judgment requiring it to complete any
Remedial Action, which in each case will have or may be
reasonably expected to have a rectification cost, in excess of
$500,000;
(n) there shall be any Change of Control;
(o) there shall have occurred, in the opinion of the Majority
Lenders, acting reasonably, any material adverse change in the
Assets, Business, operations, undertaking or condition
(financial or otherwise) of the Borrower, Guarantor and their
respective Subsidiaries, taken as a whole; or
(p) the report of the Borrower's or Guarantor's auditors delivered
in connection with the audited consolidated financial
statements of the Borrower or the Guarantor, as applicable, in
respect of any Financial Year contains a qualification which
relates to a matter which materially and adversely affects the
financial conditions of the Borrower, Guarantor and their
respective Subsidiaries, taken as
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a whole,
then, the Agent may, and shall at the request of the Majority Lenders, (i)
terminate the Lenders' obligations to make further Accommodations under the
Credit Facilities; (ii) (at the same time or at any tired after such
termination) declare the Accommodations Outstanding, all interest and Fees
accrued thereon and all other amounts payable under this Agreement in respect of
the Credit Facilities to be immediately due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; and (iii) with respect to any outstanding Bankers'
Acceptances or Letters of Credit, the Borrower shall pay to the Agent for the
benefit of the Lenders an amount equal to the aggregate of the Face Amounts of
each such outstanding Bankers' Acceptance and equal to BT's contingent liability
under each outstanding Letter of Credit which amount shall be held by the Agent
until the Lenders have no further obligation under any such Bankers' Acceptance
or Letter of Credit, at which time the Agent will pay to the Borrower an amount
equal to any excess of the amount so received by the Agent hereunder in respect
of the Bankers' Acceptances and Letters of Credit over the total amounts
necessary to reimburse the Lenders for amounts paid by them under or in
connection with any Bankers' Acceptance or Letter of Credit.
SECTION 2. REMEDIES UPON DEMAND AND DEFAULT. (1) Upon
declaration in writing to the Borrower that the Accommodations Outstanding
under the Credit Facilities are immediately due and payable pursuant to Section
9.1, the Agent shall at the request of, or may with the consent of, the Majority
Lenders, commence such legal action or proceedings as it, in its sole
discretion, may deem expedient, including the commencement of enforcement
proceedings under the Security Documents, or any other security granted by the
Borrower or others to the Agent or the Lenders, or both, all without any
additional notice, presentation, demand, protest, notice of dishonour, entering
into of possession of any of the property or Assets, or any other action, notice
of all of which the Borrower hereby expressly waives.
(2) The rights and remedies of the Agent and the Lenders hereunder and
under the other Credit Documents are cumulative and are in addition to and not
in substitution for any other rights or remedies. Nothing contained herein or in
the Security Documents or any other security hereafter held by the Agent and the
Lenders, with respect to the indebtedness or liability of the Borrower to the
Agent and the Lenders, or any part thereof, nor any act or omission of the Agent
or the Lenders with respect to the Security Documents, the Security or such
other security, shall in any way prejudice or affect the rights, remedies and
powers of the Agent and the Lenders hereunder or under the Security Documents or
such Security.
ARTICLE 10
THE AGENT AND THE LENDERS
SECTION 1. AUTHORIZATION AND ACTION. (1) Each Lender hereby
irrevocably appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
it by the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement, the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so
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acting or refraining from acting) upon the joint instructions of the
Majority Lenders and such instructions shall be binding upon all Lenders. The
Agent shall not be required to take any action pursuant to such instructions or
otherwise (i) which exposes it to personal liability; (ii) which is contrary to
this Agreement or applicable Law; or (iii) which would require the Agent to
become registered to do business in any jurisdiction or would subject the Agent
to taxation by reason thereof.
(2) The Agent shall have no duties or obligations other than as
expressed herein, and without limitation, the Agent does not undertake, and the
Lenders relieve the Agent from, any implied duties (including fiduciary duties)
and there shall not be construed against the Agent any implied covenants or
terms. The Agent may execute or perform, and may delegate the execution and
performance of, any of its powers, rights, discretions or duties hereunder and
under the Credit Documents through or to any of its own employees or other
Persons designated by it. References in any Credit Document to the Agent shall
include references to any such Persons to whom the Agent shall have delegated
any of its powers, rights, discretions and duties.
(3) The Agent shall not be obliged (i) to take or refrain from taking
any action or to exercise or to refrain from exercising any right or discretion
under this Agreement or the other Credit Documents; or (ii) to incur or subject
itself to any cost or expenditure in connection herewith and therewith, unless
it is first specifically indemnified or furnished with security by the Lenders
on a rateable basis, in form and substance satisfactory to it (which may include
further agreements of indemnity or the deposit of funds or security or other
suitable measures).
SECTION 2. NO LIABILITY. Neither the Agent nor its directors,
officers, agents or employees shall be liable to any Lender for any action taken
or omitted to be taken by it or them under or in connection with this Agreement,
except for its or their own gross negligence or wilful misconduct. Without
limiting the generality of the foregoing, the Agent (i) may treat any Lender as
the payee of amounts attributable to such Lender's Commitment hereunder unless
and until the Agent receives an agreement in the form contemplated in Section
11.8; (ii) may consult with legal counsel (including legal counsel for the
Borrower), independent accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for the form, substance, accuracy or completeness of any Credit Document
or any other documents, information or financial data made available to the
Lenders, or for any statements, warranties or representations made in or in
connection with this Agreement; (iv) shall not have any duty to ascertain or to
inquire as to the existence of a Default or an Event of Default or the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the Assets (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of any of the Credit Documents; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be sent by
facsimile transmission, by telex or by hand) believed by it to be genuine and
signed or sent by the proper party or parties.
SECTION 3. BT BANK OF CANADA.
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With respect to its Lender's Operating Commitment, Lender's Term Commitment and
Lender's Acquisition Commitment and the Accommodations made by it, BT has the
same rights and powers under this Agreement as any other Lender hereunder and
may exercise the same as though it were not the Agent and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include it in its
individual capacity. BT and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with the Borrower or any Person who may do business with or own
securities of the Borrower, all as if it were not the Agent, and without any
duty to account therefor to the Lenders.
SECTION 4. DISCOUNT RATE DETERMINATIONS. The Agent shall give
prompt notice to the Borrower and the Lenders of the interest or discount rate
determined by the Agent for an applicable Advance or Drawing Date and the
applicable interest and discount rates, if any, furnished by BT for determining
the applicable rate.
SECTION 5. HOLDING OF SECURITY; SHARING OF PAYMENTS, ETC. (1)
The Security Interests and Security constituted by the Security Documents shall
be held by the Agent for the rateable benefit of the Lenders, in accordance with
their respective terms, and any proceeds from any realization thereof shall be
applied to the Accommodations Outstanding, all interest and Fees accrued thereon
and all other amounts payable under this Agreement in respect of the Credit
Facilities and under the Credit Documents to each Lender rateably based on the
amount of Accommodations Outstanding under all of the Credit: Facilities and
Credit Documents, all interest and Fees accrued thereon and all other amounts
payable under this Agreement and the other Credit Documents owing to each Lender
to the aggregate amount of Accommodations Outstanding under all of Credit
Facilities and Credit Documents, all interest and Fees accrued thereon and all
other amounts payable under this Agreement and the other Credit Documents owing
to all of the Lenders (whether such Security is held in the name of the Agent or
in the name of any one or more of the Lenders and without regard to any priority
to which any Lender ma) otherwise be entitled under applicable Law).
(2) Each Lender agrees with the other Lenders that it will not, without
the prior consent of the other Lenders, take or obtain any Security Interest on
any property of the Borrower to secure the obligations of the Borrower
hereunder, except for the benefit of all Lenders or as may otherwise be required
by Law.
(3) If any Lender obtains any payment (whether voluntary, involuntary
or through the exercise of any right of set-off hereunder or the realization of
any Security Interest) on account of Accommodations made by it (other than
amounts paid pursuant to Section 10.7) in excess of its rateable share of
payments on account of the Accommodations made by all the Lenders, such Lender
shall account to and pay over to the other Lenders their rateable shares thereof
and shall upon request forthwith purchase from the other Lenders such
participations in the Accommodations made by such other Lenders as shall be
necessary to cause such purchasing Lender to share the excess payment rateably
with such other Lenders. If all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and each Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal
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to such Lender's rateable share (according to the proportion that the amount
such Lender's required repayment bears to the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Lender so
purchasing a participation from another Lender pursuant to this Section 10.5
may, to the fullest extent permitted by Law, exercise all its rights of payment
(including any right of set-off hereunder) with respect to such participation as
fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation and the Borrower hereby expressly acknowledges the creation
of such right.
SECTION 6. LENDER CREDIT DECISIONS. Each Lender acknowledges
that it has, independently and without reliance upon the Agent and based on the
financial statements of the Borrower and such other documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
SECTION 7. INDEMNIFICATION. Each Lender shall indemnify and
save the Agent harmless (to the extent not reimbursed by the Borrower) rateably
(according to the amount of its Lender's Term Commitment) from any Claim or Loss
suffered by, imposed upon or asserted against the Agent as a result of, in
respect of, connected with or arising out of the Credit Documents or any action
taken or omitted by the Agent under the Credit Documents, provided that no
Lender shall be liable for any portion of such Loss resulting from the gross
negligence or wilful misconduct of the Agent in its capacity as Agent. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent upon
demand for its rateable share of any out-of-pocket expenses (including counsel
fees and disbursements) incurred by the Agent in connection with the
preparation, execution, administration or enforcement of, or legal advice in
respect of rights or responsibilities under, the Credit Documents, to the extent
that the Agent is not reimbursed for such expenses by the Borrower.
SECTION 8. LIABILITY OF THE LENDERS INTER SE. Each of the
Lenders hereby agrees with each of the other Lenders that, except as
otherwise herein expressly provided, none of the Lenders has or shall have any
duty or obligation, or shall in any way be liable to any of the other Lenders,
in connection with the Credit Documents or any action taken or omitted to be
taken in, under or in connection herewith.
SECTION 9. SUCCESSOR AGENTS. The Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower, such
resignation to be effective upon the appointment of a successor Agent. Upon
notice of any such resignation the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's notice of resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent, which shall be a Lender.
Upon the acceptance of any appointment hereunder by a successor Agent, such
successor shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent and the retiring Agent shall
be
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discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation hereunder, the provisions of this Article 10 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Agent under this Agreement.
ARTICLE 11
MISCELLANEOUS
SECTION 1. AMENDMENT. (1) Subject to subsections (2) (3), no
amendment or waiver of any provision of this Agreement or any of the other
Credit Documents, nor consent to any departure by the Borrower or any party
thereto from such provisions, shall be effective unless approved by the Majority
Lenders. Any amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(2) No amendment, waiver or consent shall, unless in writing and signed
by all the Lenders, (i) increase a Lender's Operating Commitment, Lender's Term
Commitment or Lender's Acquisition Commitment or subject any Lender to any
additional obligation; (ii) reduce the amount of, or interest on, any
Accommodation Outstanding or any Fees hereunder; (iii) postpone any date fixed
for any payment of principal of, or interest on, any Accommodation Outstanding
or any Fees payable to the Lenders or to the Agent for the account of the
Lenders; (iv) permit any release of Collateral having a value in excess of
$500,000 under the Security Documents or the Security; (v) change the definition
of Majority Lenders; or (viii) amend this Section 11.1(2).
(3) No amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Majority Lenders, affect the rights or duties of
the Agent under the Credit Documents.
SECTION 2. WAIVER. (1) No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right under any of the
Credit Documents shall operate as a waiver of such right; nor shall any single
or partial exercise of any right under any of the Credit Documents preclude any
other or further exercise thereof or the exercise of any other right.
(2) Except as otherwise expressly provided in this Agreement, the
covenants, representations and warranties of the parties contained in this
Agreement shall not merge on and shall survive the initial Accommodation
hereunder and, notwithstanding such initial Accommodation, or any investigation
made by or on behalf of any party, shall continue in full force and effect. The
closing of this transaction shall not prejudice any right of one party against
any other party in respect of anything done or omitted hereunder or in respect
of any right to damages or other remedies.
SECTION 3. EVIDENCE OF DEBT AND ACCOMMODATION NOTICES. (1)
The indebtedness of the Borrower resulting from all Accommodations under the
Credit Facilities shall be evidenced by the records of the Lenders (or the Agent
acting on behalf of the Lenders) which shall, absent manifest error, constitute
prima facie evidence of such indebtedness.
(2) Prior to the receipt of any Accommodation Notice the Agent may act
upon the basis of telephonic notice (containing the same information as
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required to be contained in such Accommodation Notice) believed by it in good
faith to be from such authorized persons representing the Borrower as shall have
been indicated to the Agent prior thereto. In the event of conflict between the
Agent's record of the applicable terms of any Accommodation and such
Accommodation Notice, the Agent's record shall prevail, absent manifest error.
SECTION 4. NOTICES, ETC. Any notice, direction or other
instrument required or permitted to be given hereunder shall, except as
otherwise permitted hereunder, be in writing and given by delivering it or
sending it by telecopy or other similar form of communication addressed, if to
the Borrower or Guarantor, to it at: Xxxxx 000, 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X lG1, Attention: Chief Executive Officer,
Telephone: (000) 000-0000, Telecopier: (000) 000-0000, with a copy to First
Union Management Inc., at 00 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxx,
Attention: Legal Department, Telecopier: (000) 000-0000, if to the Agent, to it
at: BT Bank of Canada, Xxxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxx Xxxxx, X.X. Xxx 000,
Xxxxxxx, Xxxxxxx X0X 0X0, Attention: Xxxxxx Xxxxxx, President and Chief
Executive Officer, and, if to the Lenders, at the addresses shown on the
signature pages hereof. Any such notice, direction or other instrument shall be
deemed to have been effectively given, if sent by telecopy or other similar form
of telecommunication, on the next Business Day following such transmission or,
if delivered, to have been received on the date of such delivery. Any party may
change its address for service from time to time by notice given in accordance
with the foregoing and any subsequent notice shall be sent to the party at its
changed address.
SECTION 5. CONFIDENTIALITY. Each Lender agrees to ensure that
any financial statement or other information relating to the Business, Assets or
condition, financial or otherwise, of the Borrower, Guarantor and their
respective Subsidiaries which may be delivered to such Lender pursuant to this
Agreement which is not publicly filed or otherwise made available to the public
generally will, to the extent permitted by Law, be treated confidentially by
such Lender and will not, except with the prior written consent of the Borrower
and Guarantor, be distributed or otherwise made available by such Lender to any
Person other than such Lender's employees, authorized agents, counsel or other
representatives (provided such other representatives have agreed to keep all
information confidential) required, in the reasonable opinion of such Lender, to
have such information. The Agent and each Lender is hereby authorized to deliver
a copy of any financial statement or any other information relating to the
Business, Assets or financial condition of the Borrower, Guarantor and its
Subsidiaries which may be furnished to it under this Agreement or otherwise, to
(i) any actual or potential Participant or Assignee provided written or verbal
notice thereof is given to the Borrower and Guarantor and the Participant or
Assignee agrees to keep all such information confidential in accordance with the
provisions hereof; (ii) at the direction of any court, regulatory body or agency
having jurisdiction over such Lender; and (iii) any Affiliate of such Lender
required, in the reasonable opinion of such Lender, to have such information,
provided such Affiliate agrees to keep all such information confidential in
accordance with the provisions hereof.
SECTION 6. COSTS, EXPENSES AND INDEMNITY. (1) The Borrower
shall, whether or not the transactions hereby contemplated are consummated,
indemnify and hold each Lender and the Agent harmless from, and shall pay upon
notice by the Agent any amounts required to compensate such Person for, any
Claim or Loss
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suffered by, imposed on or asserted against the Agent and each Lender as a
result of, in respect of, connected with or arising out of (i) the preparation,
execution and delivery of, preservation of rights under, enforcement of, and
refinancing, renegotiation or restructuring of, the Credit Documents and any
amendment, waiver or consent relating thereto; (ii) reasonable fees associated
with any advice of Agent's counsel as to the rights and duties of the Agent and
the Lenders with respect to the Transaction and the administration of the Credit
Facilities, the Credit Documents or any transaction contemplated thereunder;
(iii) a default (whether or not constituting a Default or an Event of Default)
by the Borrower or Guarantor hereunder; and (iv) any proceedings brought against
the Agent or any of the Lenders due to its entering into this Agreement,
performing its obligations under this Agreement, providing any Accommodation or
any use of any Accommodation by the Borrower, save and except in each case for
the gross negligence, fraud or misconduct of the Agent or any Lender.
(2) The Borrower shall indemnify and hold the Lenders and the Agent and
each of their respective officers, directors, employees and agents
(collectively, the `'Indemnified Parties") harmless from and against any and all
Environmental Liabilities and Costs incurred or suffered by, or asserted
against, any of the Indemnified Parties (except for Environmental Liabilities
and Costs attributable to the gross negligence, fraud or wilful misconduct of
the Indemnified Parties) in connection with the Credit Facilities, including all
Environmental Liabilities and Costs with respect to or as a direct or indirect
result of, (i) the presence on or under or the Release or likely Release of
Hazardous Substances from any properties now, or any time heretofore or
hereafter, owned, leased, operated or used by the Borrower, Guarantor or any of
their respective Subsidiaries; or (ii) the breach by any mortgagor, owner or
lessee of such properties in their use of such properties of any Environmental
Laws.
(3) If, with respect to any Lender (i) any change in Law, or any change
in the interpretation or application of any Law occurring or becoming effective
after the date hereof; or (ii) compliance by such Lender with any direction,
request or requirement (whether or not having the force of Law) of any
Governmental Entity made or becoming effective after the date hereof, has the
effect of causing Loss to such Lender by (v) increasing the cost to such Lender
of performing its obligations under this Agreement or in respect of any
Accommodations Outstanding (including the costs of maintaining any capital,
reserve or special deposit requirements in connection therewith), (w) requiring
such Lender to maintain or allocate any capital or additional capital or
affecting its allocation of capital in respect of its obligations under this
Agreement or in respect of any Accommodations Outstanding or otherwise reducing
the effective return to such Lender under this Agreement or in respect of any
Accommodations Outstanding, (x) reducing any amount payable to such Lender under
this Agreement or in respect of any Accommodations Outstanding by any amount it
deems material, acting reasonably (other than a reduction resulting from a
higher rate of income or capital tax relating to such Lender's income or capital
in general), (y) causing such Lender to make any payment or to forego any return
on, or calculated by reference to, any amount received or receivable by such
Lender under this Agreement or in respect of any Accommodations Outstanding, or
(z) otherwise reducing the effective return to such Lender under this Agreement
or in respect of any Accommodations Outstanding or on its total capital as a
result of entering into this Agreement, then such Lender may give written notice
to the Borrower specifying the nature of the event giving rise to such Loss and
the Borrower may either, (iii) on demand, pay such amounts as such Lender may
specify to be necessary to compensate it for any such Loss; or (iv) provided no
Loss has yet been suffered by a Lender or the
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Borrower has paid the compensating amount to the Lender, repay the
Accommodations Outstanding and terminate such Lender's Commitments. A
certificate as to the amount of any such Loss, submitted in good faith by a
Lender to the Borrower, shall constitute evidence of such amounts absent
manifest error.
(4) The Borrower shall pay to each Lender no later than three Business
Days after receiving written notice from the Agent any amounts required to
compensate such Lender for any Loss suffered or incurred by such Lender as a
result of (i) any payment being made (due to acceleration of the maturity of any
Accommodation pursuant to Article 9, a mandatory or optional prepayment of
principal or otherwise) in respect of a Bankers' Acceptance, Draft, BA
Equivalent Note or Letter of Credit or Advance, otherwise than on the maturity
or expiration thereof; (ii) the failure of the Borrower to give any notice in
the manner and at the times required by this Agreement; (iii) the failure of the
Borrower to effect an Accommodation in the manner and at the time specified in
any Accommodation Notice; or (iv) the failure of the Borrower to make a payment
or a mandatory repayment in the manner at the time specified in this Agreement
or any notice given by the Borrower to the Agent in accordance with the terms of
this Agreement. A certificate as to the amount of any such Loss submitted in
good faith by a Lender to the Borrower shall constitute evidence of such amount.
(5) The provisions of this Section 11.6 shall survive the termination
of this Agreement and the repayment of all Accommodations Outstanding. The
Borrower acknowledges that neither its obligation to indemnify, nor any actual
indemnification by it, of any Lender, the Agent or any other Indemnified Party
hereunder in respect of such Person's Losses for the legal fees and expenses of
such Person's counsel shall in any way affect the confidentiality or privilege
relating to any information communicated by such Person to its counsel.
SECTION 7. CONFIRMATION OF SECURITY INTERESTS. The Borrower
hereby acknowledges and agrees that the Original erests. Credit Agreement Debt
is secured by the Original Credit Agreement Security and that the Original
Credit Agreement Security continues to be in full force and effect, unamended,
and shall stand as continuing collateral security for the Original Credit
Agreement Debt, the Accommodations Outstanding and all other liabilities and
obligations under the Credit Document.
SECTION 8. SUCCESSORS AND ASSIGNS. (1) This Agreement shall
become effective when it shall have been executed by the Borrower, the Agent and
each Lender and thereafter shall be binding upon and enure to the benefit of the
Borrower, the Lenders and the Agent and their respective successors and
permitted assigns.
(2) The Borrower shall not have the right to assign its rights or
obligations hereunder or any interest herein without the prior written consent
of all the Lenders, which consent may be arbitrarily withheld.
(3) A Lender may, subject to Section 11.8(7), upon prior written
consent of the Agent and the Borrower, such consent not to be unreasonably
withheld, (i) grant participations in all or any part of its interest in the
Credit Facilities to one or more financial institutions (each a "PARTICIPANT"),
or (ii) assign all or any part of its interest in the Credit Facilities to one
or more financial institutions (each an "ASSIGNEE"), provided that the amount
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of each such participation or assignment shall be equal to or greater than Cdn.
$5,000,000 and, to the extent of any such participation or assignment (unless
otherwise stated therein), the Participant or Assignee shall have the same
rights and benefits and be subject to the same limitations hereunder and under
the other Credit Documents as it would have if it was a Lender hereunder,
provided that no such Participant or Assignee shall be entitled to receive any
greater payment, on a cumulative basis, pursuant to Section 11.6 than the Lender
which granted such participation or assignment would have been entitled to
receive.
(4) The Borrower shall, at the cost and expense of the relevant Lender,
provide such certificates, acknowledgments and further assurances in respect of
this Agreement and the Credit Facilities as such Lender may reasonably require
in connection with any participation or assignment pursuant to this Section
11.8.
(5) Except in the case of an Assignee which has delivered an assumption
agreement pursuant to Section 11.8(6), prior to the occurrence of a Default or
an Event of Default, a Lender granting a participation or making an assignment
shall act on behalf of all of its Participants and Assignees in all dealings
with the Borrower in respect of the Credit Facilities.
(6) A Lender may deliver to the Borrower an agreement substantially in
the form of Schedule 20 by which any Assignee of such Lender assumes the
obligations and agrees to be bound by all the terms and conditions of this
Agreement, all as if such Assignee had been an original party hereto. Upon any
such assignment and assumption of the obligations of such Lender by an Assignee,
the assigning Lender and the Borrower shall be released from their respective
obligations hereunder (to the extent of such assignment and assumption) and
thereafter shall not have any liability or obligations to each other to such
extent, except in respect of matters arising prior to such assignment.
(7) No Lender (in this Section 11.8(7) called the "Assigning Lender")
shall grant participations in all or any part of its interest in the Credit
Facilities or assign or transfer all or any part of its interest in the Credit
Facilities except as follows:
(i) any such participation or assignment must be offered in writing to
the other Lender (in this section 11.8(7) called the "Receiving Lender");
(ii) if the Receiving Lender gives the Assigning Lender notice within
30 days of receipt of the offer that it will take all but not less than all of
such participation or assignment so offered, then the Assigning Lender will
assign the appropriate amount of its Credit Facilities to the Receiving Lender
on the terms set out herein;
(iii) the Assigning Lender is free to grant a participation or assign
its interest in the Credit Facilities and the Credit Documents contemplated
hereby which is not taken by the Receiving Lender to a financial institution
provided any such assignment is in compliance with the provisions hereof.
SECTION 9. RIGHT OF SET-OFF. Upon the occurrence and during
the continuance of any Event of Default, each Lender is hereby authorized at any
time and from time to time, to the fullest extent permitted by Law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the
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account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under any of the Credit Documents, irrespective of
whether or not such Lender shall have made any demand under any of the Credit
Documents. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Lenders under this Section 11.9 are in addition to other rights
and remedies (including all other rights of set-off) which the Lenders may have.
SECTION 10. ACCOMMODATIONS BY LENDERS. Unless the Agent shall
have received notice from a . Lender prior to the date of any Borrowing or
Drawing that such Lender will not make available to the Agent such Lender's
rateable portion of such Borrowing or Drawing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing or Drawing and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent such Lender shall not have made its rateable portion available to the
Agent, such Lender shall pay such corresponding amount to the Agent forthwith on
demand. If such Lender shall pay such corresponding amount to the Agent, the
amount so paid shall constitute such Lender's Advance as part of such Borrowing
or Drawing for purposes of this Agreement. If such Lender shall not pay such
corresponding amount to the Agent forthwith on demand and such amount shall have
been made available to the Borrower, the Borrower shall pay such corresponding
amount to the Agent forthwith on demand and the Borrower hereby agrees that any
such amount received and so reimbursed would not and will not constitute an
Accommodation hereunder. The Agent shall also be entitled to recover from such
Lender or the Borrower, as the case may be, interest on such corresponding
amount, for each day from the date such amount is made available to the Borrower
until the date such amount is repaid to the Agent, at a rate per annum equal to
the Agent's cost of funds.
SECTION 11. RATEABLE PAYMENTS. Unless the Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount then
due to such Lender. If and to the extent the Borrower shall not have so made
such payment in full, each Lender shall repay to the Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Agent, at a rate per annum equal to the Agent's
cost of funds.
SECTION 12. INTEREST ON ACCOUNTS. Except as may be expressly
provided otherwise in this Agreement, all amounts owed by the Borrower to the
Agent and to any of the Lenders, which are not paid when due (whether at stated
maturity, on demand, by acceleration or otherwise) shall bear interest (both
before and after default and judgment), from the date on which such amount is
due until such amount is paid in full, payable on demand, at a rate per annum
equal at all times to the sum of the Canadian Prime Rate in effect from time to
time plus .75 of 1% per annum.
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SECTION 13. ADVICE. Each Lender has advised the other Lender
of the nature and extent of all indebtedness of the Borrower and the Additional
Loan Parties to it as at the date of this Agreement and each Lender consents to
the nature and extent of such indebtedness.
SECTION 14. GOVERNING LAW. This Agreement shall be governed
by and interpreted and enforced in accordance with the laws of the Province of
Ontario and the federal laws of Canada applicable therein.
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SECTION 11.15. COUNTERPARTS. This Agreement may be executed
in any number of counterparts and all of such counterparts taken together shall
be deemed to constitute one and the same instruments.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
IMPERIAL PARKING LIMITED
Per:
Authorizing Signing Officer
c/s
Per: /s/ Authorized Signer
Authorizing Signing Officer
504463 N.B. INC.
Per: /s/ Authorized Signer
Authorizing Signing Officer
c/s
Per: /s/ Authorized Signer
Authorizing Signing Officer
COMMITMENTS THE LENDERS
BT BANK OF CANADA
Operating
Commitment:
Cdn. $6,500,000 Per: /s/ Authorized Signer
Authorizing Signing Officer
Term Per: /s/ Authorized Signer
Commitment: --------------------------
Cdn. $16,750,000 Authorizing Signing Officer
Address:
Acquisition Xxxxx Xxxx Xxxxx
Xxxxxxxxxx: Xxxxx 0000, Xxxxx Xxxxx
Xxx. $5,000,000 X.X. Xxx 000
Xxxxxxx, Xxxxxxx
X0X 2 J2
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Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxx
President and Chief Executive Officer
Operating
Commitment:
NIL
HONG KONG BANK OF CANADA
Term
Commitment: Per: /s/ Authorized Signer
Cdn. $16,750,000 Authorizing Signing Office
Per: /s/ Authorized Signer
Acquisition Authorizing Signing Office
Commitment:
Cdn. $5,000,000 Address:
Xxxxx 000
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Vice President,
Commercial Banking
