EXHIBIT 10.17
AMENDED AND RESTATED
CREDIT AGREEMENT
C$30,000,000
AMONG
XXXXXX & XXXXX, LIMITED
AND ANY DESIGNATED SUBSIDIARIES
WHICH MAY BECOME A PARTY
TO THIS AGREEMENT, AS SOLIDARY BORROWER
- AND -
CANADIAN IMPERIAL BANK OF COMMERCE
AND ANY OTHER FINANCIAL INSTITUTIONS
WHICH MAY BECOME A PARTY TO THIS AGREEMENT, AS LENDERS
- WITH -
CANADIAN IMPERIAL BANK OF COMMERCE
AS AGENT
DATED AS OF DECEMBER 27, 2001
TABLE OF CONTENTS
ARTICLE I INTERPRETATION............................................................ 1
1.1 Definitions.............................................................. 1
1.2 Headings and Table of Contents........................................... 9
1.3 References............................................................... 9
1.4 Rules of Interpretation.................................................. 10
1.5 Accounting Terms......................................................... 10
1.6 Currency................................................................. 10
ARTICLE II REPRESENTATIONS AND WARRANTIES........................................... 10
2.1 Representations and Warranties of the Lead Borrower...................... 10
ARTICLE III AMOUNTS AND TERMS OF THE CREDIT FACILITY................................ 12
3.1 Obligations of Each Lender............................................... 12
3.2 Margined Limit of the Credit Facility.................................... 13
3.3 Use of the Credit Facility............................................... 13
3.4 Selection of Designated Subsidiaries..................................... 13
ARTICLE IV MECHANICS OF DRAWDOWNS AND CONVERSIONS................................... 14
4.1 Borrowing by Designated Subsidiary....................................... 14
4.2 Prime Rate Loans......................................................... 14
4.3 Base Rate Loans.......................................................... 14
4.4 LIBOR Loans.............................................................. 15
4.5 Bankers' Acceptances..................................................... 15
4.6 Repayment and Renewal of Bankers' Acceptances............................ 16
4.7 Discounted Advances in lieu of Bankers' Acceptances...................... 16
4.8 Pro Rata Treatment of Borrowings......................................... 17
4.9 Adjustments of US Dollar Borrowings to the Equivalent Amount............. 17
ARTICLE V CONVERSIONS AND REPAYMENTS................................................ 17
5.1 Conversion of Borrowings................................................. 17
5.2 Repayments of Borrowings................................................. 18
5.3 Optional Reduction of Available Commitment............................... 18
ARTICLE VI EVIDENCE OF INDEBTEDNESS................................................. 18
6.1 Evidence of Indebtedness................................................. 18
ARTICLE VII INTEREST................................................................ 19
7.1 Payment of Interest on Prime Rate Loans.................................. 19
7.2 Payment of Interest on Base Rate Loans................................... 19
7.3 Payment of Interest on LIBOR Loans....................................... 19
7.4 Interest on Overdue Interest............................................. 20
ARTICLE VIII FEES................................................................... 20
8.1 Commitment Fee........................................................... 20
8.2 Stamping Fees............................................................ 20
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8.3 Structuring Fee.......................................................... 20
8.4 Syndication and Agencies Fees............................................ 20
ARTICLE IX LETTERS OF CREDIT AND OVERDRAFT CARVE-OUT................................ 21
9.1 Letters of Credit and Overdraft Carve-Out................................ 21
ARTICLE X CHANGES IN CIRCUMSTANCES.................................................. 21
10.1 Increased Costs.......................................................... 21
10.2 Illegality............................................................... 22
10.3 Substitute Basis - Alternate Interest Rate............................... 23
ARTICLE XI PAYMENTS, TAXES AND INDEMNITY............................................ 23
11.1 Time and Place of Payments............................................... 23
11.2 Payments Net of Taxes.................................................... 23
11.3 Expenses and Indemnity................................................... 24
11.4 Survival of Indemnification.............................................. 25
11.5 Repayment or Conversion of Locked-in Borrowings.......................... 25
11.6 Calculation of Breakage Costs............................................ 25
11.7 Application of Payments.................................................. 25
ARTICLE XII PREDISBURSEMENT CONDITIONS.............................................. 26
12.1 Conditions Precedent to Initial Borrowing................................ 26
12.2 Conditions Precedent to all other Borrowings............................. 27
12.3 Waiver................................................................... 27
ARTICLE XIII COVENANTS.............................................................. 28
13.1 Affirmative Covenants of the Borrower.................................... 28
13.2 Affirmative Covenants of the Lead Borrower............................... 29
13.3 Negative Covenants of the Borrower....................................... 30
ARTICLE XIV EVENTS OF DEFAULT....................................................... 31
14.1 Events of Default........................................................ 31
14.2 Acceleration............................................................. 33
14.3 Remedies Cumulative...................................................... 33
14.4 Waivers.................................................................. 33
14.5 Set-Off.................................................................. 33
ARTICLE XV THE AGENT................................................................ 34
15.1 Authorization of Agent................................................... 34
15.2 Arrangements for Borrowings.............................................. 34
15.3 Arrangements for Repayment of Borrowings................................. 35
15.4 Repayment by Lenders to Agent............................................ 35
15.5 Disclaimer of Agent...................................................... 36
15.6 Acknowledgment of Lenders................................................ 36
15.7 Successor Agent.......................................................... 36
15.8 Notices between Lenders and Agent........................................ 37
15.9 Duties and Obligations of Agent.......................................... 37
15.10 Indemnification of Agent................................................. 38
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15.11 Sharing among Lenders.................................................... 38
15.12 Actions and Enforcement of Remedies...................................... 39
15.13 Provisions Operative Between Lenders and Agent Only...................... 39
15.14 Relations with Borrower.................................................. 39
15.15 Amendment of Article XV.................................................. 40
15.16 Agency................................................................... 40
15.17 Sharing of Information................................................... 40
15.18 No Partnership........................................................... 40
15.19 Confidentiality.......................................................... 40
ARTICLE XVI JURISDICTION AND GOVERNING LAW.......................................... 41
16.1 Governing Law............................................................ 41
16.2 Submission to Jurisdiction............................................... 41
16.3 Judgment Currency........................................................ 41
ARTICLE XVII SUCCESSORS AND ASSIGNS................................................. 42
17.1 Successors and Assigns................................................... 42
17.2 Syndication and Sale of Participations................................... 42
ARTICLE XVIII NOTICE................................................................ 43
18.1 Address for Notice....................................................... 43
18.2 Notice................................................................... 43
ARTICLE XIX MISCELLANEOUS........................................................... 44
19.1 Severability............................................................. 44
19.2 Survival of Representations.............................................. 44
19.3 Waivers, Amendments, etc................................................. 44
19.4 Further Assurances....................................................... 45
19.5 No Novation.............................................................. 45
19.6 Nature of Liability of Borrowers......................................... 45
19.7 Lead Borrower as Agent of the Borrower................................... 45
19.8 Counterparts............................................................. 46
ARTICLE XX LANGUAGE................................................................. 46
20.1 Language................................................................. 46
ARTICLE I
INTERPRETATION
1.1 DEFINITIONS
In this Agreement and the Schedules hereto and in all notices pursuant
to this Agreement, unless something in the subject matter or context is
inconsistent therewith, the following words and phrases shall have the following
meanings:
(a) "AFFILIATE" means any Person (other than a Subsidiary) which is
controlled by or is under common control with the Lead Borrower. As
used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of
voting securities, by contract or otherwise;
(b) "AGENT" means Canadian Imperial Bank of Commerce when acting in its
capacity as Agent hereunder and includes any successor agent appointed
pursuant to Section 15.7;
(c) "AGREEMENT" means this Amended and Restated Credit Agreement, and any
future amendments, extensions, restatements or supplements to it;
(d) "APPLICABLE BASE RATE MARGIN" has the meaning attributed to it in
Section 1.1(e) below;
(e) "APPLICABLE MARGIN" means, as the case may be, the Applicable Prime
Rate Margin, the Applicable Base Rate Margin, the Applicable LIBOR
Margin, the Commitment Fee Rate and the Letter of Credit Fee Rate as
follows:
(i) for the period commencing on the Closing Date to and including
the first Performance Pricing Determination Date, (w) for any
Prime Rate Loans, Base Rate Loans and LIBOR Loans, the
Applicable Prime Rate Margin, Applicable Base Rate Margin and
Applicable LIBOR Margin shall be 0.25% per annum, (x) for any
Borrowing by way of Bankers' Acceptances, the Applicable
Stamping Fee shall be 1.75% per annum; (y) the Commitment Fee
Rate shall be 0.275% per annum and (z) the Letter of Credit
Fee Rate shall be 2.25% per annum; and
(ii) from and after the first Performance Pricing Determination
Date, the Applicable Margin shall be the percentage determined
on each Performance Pricing Determination Date by reference to
the table set forth below as to each such type of Borrowing
and the Fixed Charge Ratio (sometimes referred to herein as
the "TEST RATIO") as determined as of the end of the fiscal
quarter of the US Parent ending immediately prior to such
Performance Pricing Determination Date as follows:
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APPLICABLE
LIBOR MARGIN,
APPLICABLE BASE
RATE MARGIN
AND APPLICABLE APPLICABLE COMMIT- LETTER OF
PRIME RATE STAMPING MENT FEE CREDIT FEE
TEST RATIO MARGIN FEE RATE RATE
--------------------------------------------------------------------------------------
Level I: If the Test
Ratio is greater than 0% 1.50% 0.25% 2%
1.20 to 1.00
Level II: If the Test
Ratio is less than or 0.25% 1.75% 0.275% 2.25%
equal to 1.20 to 1.00
The Applicable Margin shall be subject to reduction or
increase, as applicable and as set forth in the table above,
on a quarterly basis according to the performance of the US
Parent as measured by the Test Ratio for the immediately
preceding four (4) fiscal quarters of the US Parent; provided,
however, that the Test Ratio measured (x) for December 31,
2001 shall be calculated for the immediately preceding fiscal
quarter, (y) for March 31, 2002 shall be calculated for the
immediately preceding two (2) fiscal quarters, and (z) for
June 30, 2002, shall be calculated for the immediately
preceding three (3) fiscal quarters. Except as set forth in
the last sentence hereof, any such increase or reduction in
the Applicable Margin provided for herein shall be effective
on the Performance Pricing Determination Date; provided,
however, that any reduction in the Applicable Margin shall not
apply to any LIBOR Loans outstanding on the Performance
Pricing Determination Date that have an interest period
commencing prior to the Performance Pricing Determination
Date. If the financial statements of the US Parent are not
received by the Agent by the date required pursuant to this
Agreement, the Applicable Margin shall be determined as if the
Test Ratio exceeds the ratio set forth as Level I in the
foregoing table until such time as such financial statements
are received and any Event of Default resulting from a failure
to timely deliver such financial statements is waived in
writing by the Agent. For the final fiscal quarter of any
fiscal year, the Lead Borrower may provide the unaudited
financial statements of the US Parent, subject only to
year-end adjustments, for the purpose of determining the
Applicable Margin; provided, however, that if, upon the timely
delivery of the annual audited financial statements required
to be submitted by the Borrower to the Agent pursuant to this
Agreement, it is determined that an Applicable Margin other
than as determined based upon the unaudited financial
statements should have been in effect for the final quarter of
such fiscal year then ended, then (a) effective on the first
day of the month following receipt by the Agent of such
audited financial statements, the Applicable Margin shall be
the Applicable Margin that would have been in effect if the
unaudited financial
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statements of the US Parent for the final fiscal quarter of
such fiscal year then ended had been consistent with the
annual audited financial statements, and (b) the Borrower
shall pay to the Agent, for the benefit of the Lenders, or the
Agent shall credit the account of the Borrower, on the first
day of the month following receipt by the Agent of such
audited financial statements, an amount equal to the
difference between (y) the amount of interest or fees that
would have been paid on the principal amount of the Borrowings
using the Applicable Margin determined based upon such audited
financial statements and (z) the amount of interest or fees
actually paid during the period in which the reduction of the
Applicable Margin was in effect based upon the unaudited
financial statements of such final fiscal quarter of the
fiscal year then ended;
(f) "APPLICABLE LIBOR MARGIN" has the meaning attributed to it in Section
1.1(e) above;
(g) "APPLICABLE PRIME RATE MARGIN" has the meaning attributed to it in
Section 1.1(e) above;
(h) "AVAILABLE COMMITMENT" means the amount of the Total Commitment (to the
extent not cancelled or terminated pursuant to the provisions hereof),
less any commitment cancellations made by the Borrower from time to
time pursuant to Section 5.3;
(i) "BANKERS' ACCEPTANCE" any draft issued by the Borrower and accepted by
a Lender under Section 4.5 of this Agreement, and includes among other
things a depository xxxx under the Depository Bills and Notes Act
(Canada) and a xxxx of exchange under the Bills of Exchange Act
(Canada);
(j) "BASE RATE" means on any particular day, the greater of (i) the rate of
interest per annum most recently determined by the Agent as the
reference rate then in effect for determining interest rates on US
Dollar commercial demand loans made by it in Canada to its prime
commercial borrowers, and (ii) the Federal Funds Rate plus one percent
(1%);
(k) "BASE RATE LOAN" means a Borrowing denominated in US Dollars and
bearing interest at the Base Rate in accordance with Section 7.2;
(l) "BORROWER" means, at any time, the Lead Borrower and all the entities
that are then Designated Subsidiaries;
(m) "BORROWING BASE" means, as at any time, as determined by the Agent, the
amount resulting from the calculation referred in Section 3.2 hereof;
(n) "BORROWING" means a utilization of the Credit Facility by way of Prime
Rate Loans, Base Rate Loans, LIBOR Loans, Bankers' Acceptances (or
Discounted Advances), or letters of credit, and "BORROWINGS" means the
aggregate of all such utilizations outstanding at any particular time;
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(o) "BRANCH OF ACCOUNT" means, with respect to each Lender, including the
Agent, the branch of such Lender at the address shown next to its name
on the signature page hereof, or such other branch in Canada as the
Lender may from time to time advise the Agent and the Borrower in
writing;
(p) "BUSINESS DAY" means any day (other than a Saturday or Sunday) during
which each Lender is open to transact business in the ordinary course
at its Branch of Account and, in the case of a LIBOR Loan, during which
money market transactions and dealings between banks in foreign
currency and exchange may be carried out in Montreal, Toronto, New York
and London (England);
(q) "CALENDAR QUARTER" means any three-month period ending on the Sunday
closest to March 31st, June 30th, September 30th and December 31st
(either before or after);
(r) "CANADIAN DOLLARS" and the symbol "C$" each mean the lawful money of
Canada;
(s) "CLOSING DATE" means December 27, 2001;
(t) "COMMITMENT" means the several obligation of each Lender to make
available to the Borrower its Pro Rata Share of the Total Commitment;
(u) "COMMITMENT FEE RATE" has the meaning attributed to it in Section
1.1(e) above;
(v) "CONSOLIDATED SUBSIDIARY" means, at any date, any Subsidiary or other
entity the accounts of which would be consolidated with those of the
Lead Borrower in its consolidated financial statements if such
statements were prepared as of such date;
(w) "CONVERSION DATE" means any Business Day which the Borrower has
notified the Agent at the Agent's Branch of Account as the date on
which it has elected to convert a Borrowing or a portion thereof
pursuant to Section 5.1;
(x) "CREDIT FACILITY" means the facility which the Lenders are hereby
making available to the Borrower pursuant to and subject to this
Agreement;
(y) "DESIGNATED SUBSIDIARY" means a Subsidiary which the Lead Borrower has
so designated pursuant to Section 3.4 hereof and which, at the
particular time, remains a Designated Subsidiary; as at the Closing
Date, the only Designated Subsidiary is T&B Commander Limited
Partnership;
(z) "DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default;
(aa) "DISCOUNTED ADVANCES" means the Borrowings or portion thereof made
available to the Borrower by a Lender that is not a Canadian chartered
bank, in lieu of Bankers' Acceptances, pursuant to Section 4.7;
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(bb) "DRAWDOWN DATE" means any Business Day which the Borrower has notified
the Agent at the Agent's Branch of Account as a date on which a
Borrowing is to be made hereunder;
(cc) "EBITDA" means, with respect to any fiscal period, the Lead Borrower's
net earnings (or loss) minus extraordinary gains (plus extraordinary
losses), plus, to the extent deducted from such net earnings, interest
expense, income taxes, and depreciation and amortization for such
period, as determined in accordance with GAAP;
(dd) "ELIGIBLE INVENTORY" means all of the inventory of the Borrower (valued
at the lower of cost, determined using the first-in-first-out method,
replacement cost and net realizable value, but in no event valued at
greater than fair market value), which consists of finished goods
inventory (but in no event work in process), which are subject to the
Liens created by the Security Documents, excluding therefrom (i) any
supplies, spare parts, goods returned or rejected by customers and are
not saleable, (ii) goods to be returned to suppliers, (iii) goods in
transit and (iv) goods held under consignment or subject to title
retention agreements pending complete payment or subject to any other
special arrangement affecting the title of the Borrower;
(ee) "ELIGIBLE ACCOUNTS RECEIVABLE" means, all of the claims, book debts and
accounts receivable of the Borrower which are subject to the Liens
created by the Security Documents, for which the account debtor is not
an Affiliate and is located in Canada or in the United States of
America or, if located in another jurisdiction, for which the
applicable claim, book debt or account receivable is supported by a
letter of credit acceptable to the Agent that has been assigned or
charged to the Agent or the Lenders and which are outstanding for less
than 90 days, other than such claims, book debts and accounts
receivable which are being disputed by the account debtors or are
considered to constitute bad debts under generally accepted accounting
principles;
(ff) "EQUIVALENT AMOUNT" means, on any date, the amount of original
currencies which may be converted to a second currency at the Bank of
Canada noon rate on such date;
(gg) "EVENT OF DEFAULT" means any of the events or circumstances specified
in Section 14.1;
(hh) "FEDERAL FUNDS RATE" means on any day, a fluctuating rate per annum
equal to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System as published by
the Federal Reserve Bank of New York;
(ii) "FIXED CHARGE RATIO" means the ratio of EBITDA to Fixed Charges;
(jj) "FIXED CHARGES" means for any period the sum of (i) interest expense
and non-capitalized interest and the interest component of capitalized
lease obligations, plus (ii) capital expenditures, plus (iii) taxes,
plus (iv) dividends and distributions paid during such period;
(kk) "FLOATING RATE LOAN" means either a Prime Rate Loan or a Base Rate
Loan;
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(ll) "GAAP" means:
- with respect to the financial information of the US Parent,
generally accepted accounting principles as in effect from
time to time in the United States of America, applied on a
basis consistent (except for changes concurred in by the US
Parent's independent public accountants) with the most recent
audited consolidated financial statements of the US Parent and
its Consolidated Subsidiaries delivered to the Lenders; and
- with respect to the financial information of the Borrower,
generally accepted accounting principles as in effect from
time to time in Canada, applied on a basis consistent (except
for changes concurred in by the Borrower's independent public
accountants) with the most recent unaudited consolidated
financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Lenders;
(mm) "HAZARDOUS MATERIAL" means any hazardous substance, pollutant,
contaminant, toxic or dangerous waste, substance or material, the
disposal, handling, transportation or storage of which is regulated by
the laws of Canada or of any Province thereof;
(nn) "HYPOTHEC" has the meaning ascribed thereto in Section 13.1(l);
(oo) "INTEREST PAYMENT DATE" means the first Business Day of each calendar
month;
(pp) "LAWS" includes, as the case may be, codes, statutes, regulations,
orders, decrees, rulings, decisions, policies and other rules adopted
by competent authorities;
(qq) "LEAD BORROWER" means Xxxxxx & Xxxxx, Limited;
(rr) "LENDER" means any bank or other financial institution which is an
original signatory hereto as lender, and any other financial
institution which may hereafter become party hereto in such capacity
pursuant to Section 17.2;
(ss) "LETTER OF CREDIT" means a standby letter of credit, a commercial
letter of credit or a letter of guarantee denominated in Canadian
Dollars or US Dollars issued from time to time by the Canadian Imperial
Bank of Commerce at the request of the Borrower in accordance with
Section 9.1;
(TT) LETTER OF CREDIT FEE RATE" has the meaning attributed to it in Section
1.1(e) above;
(uu) "LIBOR" in relation to each LIBOR Loan means the rate of interest per
annum offered by the Agent to leading banks in the London interbank
market for deposits in US Dollars in an amount comparable to the
principal amount of the LIBOR Loan for which a LIBOR interest rate is
then being determined and with maturities comparable to the LIBOR
Interest Period for which the applicable LIBOR interest rate will
apply, in each case at approximately 11:00 a.m. (London Time) two
Business Days prior to the commencement of such LIBOR Interest Period;
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(vv) "LIBOR INTEREST PAYMENT DATE" means, with reference to a LIBOR Loan,
the last day of its LIBOR Interest Period and if the LIBOR Interest
Period selected by the Borrower is for a period longer than three (3)
months, the day falling on each three-month anniversary of the first
day of such LIBOR Interest Period. If the last day of a LIBOR Interest
Period or, in the case of a LIBOR Interest Period longer than three (3)
months, the three-month anniversary of the first day of such LIBOR
Interest Period, is not a Business Day, the LIBOR Interest Payment Date
shall be the Business Day next following;
(ww) "LIBOR INTEREST PERIOD" means, with reference to a LIBOR Loan, the
initial period (subject to availability and to Section 4.4 of thirty
(30), sixty (60), ninety (90) or one hundred and eighty (180) days,
commencing with the date on which a LIBOR Loan is made or on which
another basis of Borrowing is converted into a LIBOR Loan, and ending
on the LIBOR Interest Payment Date falling on the last day of the
applicable LIBOR Interest Period, and thereafter (subject to
availability and to Section 4.4) each successive period of thirty (30),
sixty (60), ninety (90) or one hundred and eighty (180) days;
(xx) "LIBOR LOAN" means a Borrowing bearing interest in accordance with
Section 7.3;
(yy) "LIEN" means, with respect to any asset, any hypothec, mortgage, lien,
prior claim, pledge, charge, security interest or encumbrance of any
kind in respect of such asset. For purposes hereof, the Lead Borrower
or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset; provided that any
transaction (including, without limitation, any sale of accounts
receivable) which is treated as a sale of assets under GAAP shall be so
treated hereunder and any asset which is so sold shall not be deemed
subject to a Lien. It is understood that a contractual grant of a right
of set-off does not create a Lien in the absence of an agreement to
maintain a balance against which such right may be exercised;
(zz) "LOCKED-IN BORROWING" means any form of Borrowing hereunder, other than
Floating Rate Loans;
(aaa) "MAJORITY LENDERS" means the Lenders to which at least 66-2/3% in the
aggregate of all Borrowings are owing; provided, however, that if at
the time that any such determination must be made, there is no
Borrowing outstanding hereunder, then the calculation shall be made on
the basis of the Available Commitment at the particular time;
(bbb) "MATERIAL ADVERSE EFFECT" means a serious and material deterioration in
the financial condition of the Borrower which, in the reasonable
opinion of the Majority Lenders, impairs or is likely to impair its
ability to satisfy and perform, on a timely basis, its liabilities and
obligations generally as they become due, including those owing
hereunder;
(ccc) "MATURITY DATE" means March 31, 2004;
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(ddd) "NOTICE OF BORROWING" means a notice given pursuant to Section 4.2
through Section 4.7 of this Agreement, and includes a notice of
conversion given pursuant to Section 5.1, as the case may be;
(eee) "ORIGINAL CREDIT AGREEMENT" means that certain Credit Agreement dated
as of March 24, 1999, entered into between Xxxxxx & Xxxxx Corporation
and any of its Designated Subsidiaries which may become a party to such
agreement, as borrowers, Canadian Imperial Bank of Commerce and any
other financial institutions which may become party to such agreement,
as lenders, and Canadian Imperial Bank of Commerce, as agent, as
amended by First Amendment to Credit Agreement dated as of September
20, 2000, by Waiver and Second Amendment to Credit Agreement dated as
of July 1, 2001, by Amended Waiver and Third Amendment to Credit
Agreement dated as of August 2, 2001, by the appointment of T&B
Commander Limited Partnership as Designated Subsidiary by letter dated
August 6, 2000, and by Waivers by the Canadian Imperial Bank of
Commerce to Xxxxxx & Xxxxx Corporation, Xxxxxx & Xxxxx, Limited and T&B
Commander Limited Partnership dated respectively September 26, 2001,
October 11, 2001, November 29, 2001, December 14, 2001 and December 21,
2001;
(fff) "OVERDRAFT" means a Borrowing by way of overdraft, as made available to
the Borrower by the Canadian Imperial Bank of Commerce under Section
9.1;
(ggg) "PERFORMANCE PRICING DETERMINATION DATE" means the first Business Day
of the calendar month after receipt by Agent of the latest available
financial statements of the US Parent;
(hhh) "PERSON" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an
agency or instrumentality thereof;
(iii) "PRIME RATE" means the higher of (i) the annual rate of interest set
from time to time by the Agent as its reference rate then in effect for
determining interest rates on Canadian Dollar commercial demand loans
made by it in Canada to its prime commercial borrowers, and (ii) the
sum, expressed as an annual percentage rate, of the Agent's 30-day
discount rate then applicable for Bankers' Acceptances as shown at
approximately 10:00 a.m. on Reuters' CDOR page plus one percent (1%);
(jjj) "PRIME RATE LOAN" means a Borrowing denominated in Canadian Dollars and
bearing interest at the Prime Rate in accordance with Section 7.1;
(kkk) "REVOLVING PERIOD" means the period commencing on the date of this
Agreement, and ending on the Maturity Date;
(lll) "SECURITY DOCUMENTS" is the collective reference to (i) the movable
hypothecs that the Borrower grants in favour of the Lenders as a
continuing collateral guarantee for the execution and payment of the
Borrower's obligations under the Credit Agreement, as same may be
amended, supplemented or restated from time to time and (ii) the
documents pursuant to the terms of which the Borrower assigns its
inventory in
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favour of any Lender that is a bank under the Bank Act (Canada), the
whole pursuant to the provisions of Xxxxxxx 000 xx xxx Xxxx Xxx
(Xxxxxx);
(mmm) "SENIOR FINANCIAL OFFICER" means the senior officers of the Borrower
from time to time serving as its Vice-President Finance, Treasurer,
Assistant-Treasurer or any other senior officer of the Borrower
occupying similar functions, whatever its actual title;
(nnn) "STAMPING FEES" means, with respect to Bankers' Acceptances issued
pursuant to this Agreement, the fees calculated in accordance with
Section 8.2;
(ooo) "SUBSIDIARY" means, as to any Person, a corporation or other entity of
which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons
performing similar functions are at the time directly or indirectly
owned by such Person. Unless otherwise specified, "SUBSIDIARY" means a
Subsidiary of the Lead Borrower;
(ppp) "TOTAL COMMITMENT" means the several obligations of the Lenders to make
available to the Borrower an aggregate principal amount of C$30,000,000
(or the Equivalent Amount thereof), to the extent not cancelled,
reduced, or terminated pursuant to this Agreement;
(qqq) "US CREDIT AGREEMENT" means the Credit and Security Agreement dated as
of November 15, 2001, and entered into between the US Parent, as
borrower, the US Lenders listed therein, as lenders, and Wachovia Bank,
N.A., as Agent, as the same may be amended, extended, restated or
supplemented from time to time;
(rrr) "US DOLLARS" and the symbol "US$" each mean the lawful money of the
United States of America in same day available funds or, if such funds
are not available, the form of money of the United States of America
that is customarily used in the settlement of international banking
transactions on the day that a payment is due hereunder.
(sss) "US LENDERS" means the "Lenders" as defined the US Credit Agreement;
(ttt) "US PARENT" means Xxxxxx & Xxxxx Corporation;
(uuu) "427 DOCUMENTS" has the meaning ascribed thereto in Section 13.1(l).
1.2 HEADINGS AND TABLE OF CONTENTS
The headings of the Sections, the table of contents, the Articles and
the Section numbers are inserted for convenience of reference only and shall not
affect the construction or interpretation of this Agreement.
1.3 REFERENCES
Unless something in the subject matter or context is inconsistent
therewith, all references to Sections, ARTICLES and Schedules are to Sections,
ARTICLES and Schedules to this
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Agreement. The words "hereto", "herein", "hereof", "hereunder" and similar
expressions mean and refer to this Agreement.
1.4 RULES OF INTERPRETATION
In this Agreement, unless otherwise specifically provided, the singular
includes the plural and vice versa, "in writing" or "written" includes printing,
typewriting, and any electronic means of communication capable of being visibly
reproduced at the point of reception, including telex, telecopier or telegraph.
1.5 ACCOUNTING TERMS
All accounting and financial terms used herein, and the compliance with
each covenant contained herein which is related to financial matters, shall be
determined in accordance with GAAP consistently applied, except to the extent
that a deviation therefrom is expressly provided herein or is otherwise
expressly permitted by the Agent.
1.6 CURRENCY
Unless otherwise specifically stated herein or unless it is otherwise
apparent from the context, all amounts of principal, interest and fees set forth
herein and all other amounts payable by the Borrower to the Lenders or the Agent
hereunder are in Canadian Dollars.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE LEAD BORROWER
The Lead Borrower and each Designated Subsidiary represents and
warrants to each of the Agent and the Lenders as of the date of this Agreement,
all of which representations and warranties shall survive the execution and
delivery of this Agreement, that:
(a) it (i) is duly organized, validly existing and in good standing under
the laws of its jurisdiction of constitution, (ii) is duly authorized
to do business wherever the nature of its respective properties or
respective activities requires authorization, and (iii) has the power
and authority to own its respective properties, to conduct the business
in which it is presently engaged and to perform its obligations under
this Agreement;
(b) the execution, delivery and the performance by the Borrower of this
Agreement (i) have been duly authorized by all necessary actions, (ii)
are not in violation of any law, regulation, ordinance or decree, (iii)
are not in violation of any term of its incorporating documents or its
by-laws, and (iv) will not result in any breach of or constitute a
default under or be in conflict with any indenture or loan or credit
agreement or any other agreement to which the Borrower is a party or by
which it is bound;
(c) subject to (i) applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally, and (ii) the
equitable and statutory powers of the courts of Canada to stay
proceedings before them and to refuse to grant equitable remedies such
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as injunctive relief or specific performance, and to stay the execution
of judgments, this Agreement constitutes a legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms,
and the obligations of the Borrower constitute unconditional and direct
obligations;
(d) there is no litigation, action or other legal proceeding pending, or,
to the knowledge of the Lead Borrower, threatened, against the Borrower
or any of their property which, if adversely determined, might have a
Material Adverse Effect;
(e) the Borrower is not in default under this Agreement nor has the
Borrower done or omitted to do anything which, with the giving of
notice or the passage of time, or both, would constitute an Event of
Default and, as at the date hereof, the Borrower is not in default
under any other agreement for monies borrowed or guaranteed to which
the Borrower is a party or by which it is bound;
(f) the Borrower has good and marketable title to all its property and
assets and there are currently no Liens (other than those in favour of
the Lenders) upon any of the Borrower's property or assets;
(g) there no are events, facts or omissions, including strikes or other
labor disputes, which are pending or, to its knowledge, threatened
which could reasonably be expected to have a Material Adverse Effect;
(h) all federal, provincial, local and foreign tax returns, reports and
statements required to be filed by the Borrower have been filed with
the appropriate governmental agencies and all charges and other
impositions shown thereon to be due and payable have, except where
contested in good faith, been paid prior to the date on which any fine,
penalty, interest or late charge may be added thereto for non-payment
thereof, or any such fine, penalty, interest or late charge has been
paid. Proper and accurate amounts have been withheld by the Borrower
from its employees for all periods in full and complete compliance with
all tax, social security, pension plan (including the Canada Pension
Plan) and unemployment withholding provisions of applicable contractual
covenants and/or federal, provincial, local and foreign Laws; in the
event of withholdings required by any applicable federal, provincial,
local and foreign Laws, all such withholdings have been timely paid to
the respective governmental agencies;
(i) the Borrower's business and assets are operated, in all material
respects, in compliance with applicable laws intended to protect the
environment (including, without limitation, laws respecting the
disposal or emission of Hazardous Materials), and no enforcement
actions in respect thereof are threatened or pending;
(j) the Borrower is in good standing under any and all of its material
contracts and leases;
(k) the various information delivered by the Borrower to the Agent has been
prepared in good faith, and is true, correct and accurate in all
material respect;
(l) the consolidated balance sheet of the Parent and the related
consolidated statements of earnings, cash flows and shareholders'
equity as posted from time to time on the
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Securities and Exchange Commission of the United States of America
website on the Internet (see xxx.xxx.xxx), fairly present, in
conformity with generally accepted accounting principles, the
consolidated financial position and the consolidated results of
operations and cash flows of the Parent;
(m) the domicile of each of Xxxxxx & Xxxxx, Limited and T & B Commander
L.P. is located in the Province of Quebec;
(n) the corporate chart set forth in Schedule 2.1(n) hereof now comprises
entities with assets in Canada that represent, in the aggregate, 90% in
value (valued at the lower of cost, replacement cost and net realizable
value, but in no event valued at greater than fair market value) or
more of all the inventory and accounts receivable owned by the Lead
Borrower and all its direct and indirect Canadian subsidiaries;
(o) the list of places of business set forth in Schedule 2.1(o) hereof
comprises locations where the Lead Borrower and all its direct and
indirect subsidiaries have assets that represent, in the aggregate, 90%
in value (valued at the lower of cost, replacement cost and net
realizable value, but in no event valued at greater than fair market
value) or more of all the inventory and accounts receivable owned by
the Lead Borrower and all its direct and indirect Canadian
subsidiaries;
(p) the execution and delivery of this Agreement and the performance of the
obligations of the Borrower under the Hypothecs and the 427 Documents
do not and will not require the consent or approval of any regulatory
authority or governmental authority or agency having jurisdiction over
the Borrower which has not already been obtained, nor contravene or
conflict with the charter documents of the Borrower, or the provisions
of any statute, judgment, order, indenture, instrument, agreement or
undertaking, to which the Borrower is a party or by which any of its
properties are or may become bound.
ARTICLE III
AMOUNTS AND TERMS OF THE CREDIT FACILITY
3.1 OBLIGATIONS OF EACH LENDER
Relying on each of the representations and warranties set forth in
Article II, and on the condition that no Event of Default has occurred and has
remain unremedied in accordance with this Agreement, and on the further
condition that the Borrower has fulfilled its covenants and obligations under
this Agreement, and subject to the terms and conditions of this Agreement, each
of the Lenders, not solidarily but jointly, agrees to make available to the
Borrower at any time and from time to time on and after the date hereof and
prior to the Maturity Date, either by way of Prime Rate Loans, Base Rate Loans,
LIBOR Loans or Bankers' Acceptances, or any combination thereof, its Pro Rata
Share of an amount equal to the lesser of:
(a) THIRTY MILLION CANADIAN DOLLARS (C$30,000,000) or the Equivalent Amount
thereof; and
(b) the amount of the Borrowing Base;
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provided, however, that no Borrowing shall be made by the Lenders hereunder if
after giving effect thereto the aggregate of the Borrowings would exceed the
Available Commitment.
3.2 MARGINED LIMIT OF THE CREDIT FACILITY
The aggregate principal amount outstanding under the Credit Facility,
expressed in the Equivalent Amount of Canadian Dollars if any portion thereof is
outstanding in U.S. Dollars, shall not exceed the aggregate of:
(a) an amount equal to 75% of the Eligible Accounts Receivable; and
(b) an amount equal to 50% of the Eligible Inventory;
less
(c) the aggregate amount of liabilities owing by Xxxxxx & Xxxxx, Limited or
a direct or indirect subsidiary of Xxxxxx & Xxxxx, Limited, the
non-payment of which shall or may result in the creation of a Lien or
other claim ranking in priority to any of the Liens of the Lenders
under the Security Documents.
3.3 USE OF THE CREDIT FACILITY
The Borrower shall utilize the Credit Facility for general corporate
purposes, provided that the Credit Facility shall not be used in connection with
hostile takeovers without the prior unanimous consent of the Lenders expressed
in writing.
3.4 SELECTION OF DESIGNATED SUBSIDIARIES
The initial list showing each Designated Subsidiary which is a Borrower
hereunder is set forth in Schedule 3.4(a). The Lead Borrower shall have the
option from time to time upon ten (10) Business Days' prior notice to the Agent
in the form of Schedule 3.4(b), to remove a Subsidiary from the list of
Designated Subsidiaries or to add to such list one or more Subsidiaries that are
corporate entities constituted under the Canada Business Corporations Act or a
similar statute of a Canadian province or territory, subject to the following
provisions:
(a) the removal of a Designated Subsidiary shall take effect as of the date
which shall be agreed upon between the Lead Borrower and the Agent and
shall be subject to the full and complete repayment by such removed
Designated Subsidiary of all Borrowings utilized by it at the
particular time (subject always to Section 11.5 in the case of
Locked-in Borrowings); or
(b) the assumption by one or more Designated Subsidiaries of such
outstanding Borrowings of the former Designated Subsidiary; provided,
however, that any portion of the Borrowings of such former Designated
Subsidiary which is not assumed by one or more other Designated
Subsidiaries at the particular time shall be repaid to the Lenders
(subject always to Section 11.5 in the case of Locked-in Borrowings)
and shall constitute a repayment made pursuant to Section 5.2 hereof;
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(c) in the case of a Subsidiary which is added to the list of Designated
Subsidiaries, the effective date of such addition shall be agreed upon
between the Lead Borrower and the Agent and shall be subject to the
delivery by such new Designated Subsidiary to the Agent at the Agent's
Branch of Account, not later than the effective date on which such
designation takes effect, (i) of a letter of adhesion in the form
annexed to Schedule 3.4(c) hereof, duly executed by such new Designated
Subsidiary and by the Lead Borrower (acting for itself and as agent and
mandatary of all other existing Designated Subsidiaries comprised in
the definition of "Borrower"), (ii) of security documents granted by
such new Designated Subsidiary, similar to the Security Documents and
in registrable form (iii) a certified copy of a resolution of such
newly Designated Subsidiary authorizing its participation hereto as a
Borrower and the granting of Liens under the Security Documents, and
(iv) of a legal opinion from counsel for such new Designated Subsidiary
in the form attached hereto as Schedule 12.1(a); whereupon the
provisions of this Agreement, including the term "Borrower" shall
extend to and be binding upon such newly Designated Subsidiary as if it
were an original party hereto.
ARTICLE IV
MECHANICS OF DRAWDOWNS AND CONVERSIONS
4.1 BORROWING BY DESIGNATED SUBSIDIARY
One or more of the Designated Subsidiaries may use the Credit Facility
and convert any basis of Borrowing as provided for in Section 5.1, irrespective
of any Borrowing by the Lead Borrower at any time, without in any way limiting
the obligations of the Lead Borrower to the Lenders pursuant hereto. In such
case, any notice given by the Lead Borrower under Sections 4.2, 4.3, 4.4, 4.5,
4.6 or 5.1 shall be deemed to have been given pursuant to Section 19.7 hereof.
4.2 PRIME RATE LOANS
The utilization of the Credit Facility by way of Prime Rate Loans shall
be for a minimum amount of C$1,000,000 or any greater amount which is a whole
multiple of C$100,000. Each such utilization shall be preceded by a written
notice from the Lead Borrower to the Agent in the form and substance set forth
in Schedule 4.2 not less than one (1) Business Day prior to the intended date of
utilization.
4.3 BASE RATE LOANS
The utilization of the Credit Facility by way of Base Rate Loans shall
be for a minimum amount of US $1,000,000 or any greater amount which is a whole
multiple of US $100,000. Each such utilization shall be preceded by a written
notice from the Lead Borrower to the Agent in the form and substance set forth
in Schedule 4.3 not less than one (1) Business Day prior to the intended date of
utilization.
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4.4 LIBOR LOANS
The utilization of the Credit Facility by way of LIBOR Loans shall be
subject to the availability of funds and to the following conditions:
(a) Drawdown of LIBOR Loans
Whenever the Borrower proposes to borrow by way of a LIBOR
Loan or to roll over all or part of an existing LIBOR loan hereunder,
the Lead Borrower shall, at or about 11:00 a.m. (Eastern Time) three
(3) Business Days prior to the beginning of each LIBOR Interest Period,
select and notify the Agent of the LIBOR Interest Period (or, as the
case may be, the next LIBOR Interest Period) applicable to such LIBOR
Loan or such part thereof, which LIBOR Interest Period shall commence
on and include the day of the expiration of any immediately preceding
LIBOR Interest Period, provided that no LIBOR Interest Period shall
extend beyond the Maturity Date. Such notification shall be in the form
and substance provided in Schedule 4.4.
(b) Minimum Amount
Each notification by the Lead Borrower pursuant to the above
paragraph shall be for an amount of US $1,000,000 or any greater amount
which is a whole multiple of US $100,000 and shall be irrevocable and
binding on the Borrower for the LIBOR Interest Period therein selected.
In respect of any LIBOR Loan to be made in connection with such
notification, the Borrower shall indemnify the relevant Lender against
any loss or expense (except loss of profit) incurred by the relevant
Lender as a result of any failure by the Borrower to take down such
LIBOR Loan in the amount and on the date specified, including, without
limitations, any loss or expense (except loss of profit) incurred by
reason of the liquidation of deposits or other funds acquired by the
relevant Lender to fund such LIBOR Loan.
(c) Repayment, rollover or conversion of LIBOR Loans
Any portion of a LIBOR Loan which is not on the last day of
the LIBOR Interest Period thereof either repaid by the Borrower or
rolled into a new LIBOR Loan pursuant to an appropriate Notice of
Borrowing or converted pursuant to an appropriate Notice of Conversion
in that respect, shall be deemed to have been converted into a Base
Rate Loan on the last day of the current LIBOR Interest Period so
ending.
4.5 BANKERS' ACCEPTANCES
The utilization of the Credit Facility by the issuance and reissuance
of Bankers' Acceptances denominated in Canadian Dollars only shall be subject to
market conditions and to the following provisions:
(a) each utilization by way of Bankers' Acceptances is for a minimum
aggregate face amount of C$1,000,000 or any greater amount which is a
whole multiple of C$100,000;
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(b) each Bankers' Acceptance has a term of not less than thirty (30) days
and not more than one hundred and eighty (180) days, provided that no
Bankers' Acceptance shall in any event have a term which expires beyond
the Maturity Date;
(c) the Agent has been notified in writing by the Lead Borrower one (1)
Business Day prior to the date of issuance, of the Borrower's intention
to issue Bankers' Acceptances, such written confirmation to be in the
form and substance provided in Schedule 4.5 not later than 12:00 noon
(Eastern Time) on the same day;
(d) each Bankers' Acceptance will mature on a Business Day on or before the
Maturity Date; and
(e) each utilization by way of Bankers' Acceptance will be drawn and
allocated among the Lenders in each Lender's Pro Rata Share rounded by
the Agent to the nearest C$100,000.
For the purposes of this Agreement, the face amount of Bankers'
Acceptances shall be used when calculations are made to determine the amount of
Borrowings.
4.6 REPAYMENT AND RENEWAL OF BANKERS' ACCEPTANCES
With respect to each Borrowing which is outstanding as a Bankers'
Acceptance, at or before 12:00 noon (Eastern Time) one (1) Business Day prior to
the maturity date of such Banker's Acceptance, the Lead Borrower shall notify
the Agent verbally of the Borrower's intention to reissue Bankers' Acceptances
on such maturity date to provide for the payment of such maturing Bankers'
Acceptance, such verbal notice to be followed by written confirmation in form
and substance as provided in Schedule 4.5 not later than 12:00 noon (Eastern
Time) on the same day. The provisions of Section 4.5 shall apply mutatis
mutandis to each such renewal of Bankers' Acceptances. If the Lead Borrower
fails to give such notices, any Bankers' Acceptance so maturing shall be
automatically converted on its maturity date into a Prime Rate Loan.
4.7 DISCOUNTED ADVANCES IN LIEU OF BANKERS' ACCEPTANCES
With respect to each Borrowing by way of Bankers' Acceptances pursuant
to Section 4.5 or renewal thereof pursuant to Section 4.6, any Lender which is
not a Canadian chartered bank shall, in lieu of accepting Bankers' Acceptances,
purchase from the Borrower a non-interest bearing note issued by such Borrower,
denominated in Canadian Dollars, in the amount and for the same term as the xxxx
which such Lender would otherwise have been required to stamp hereunder, at a
purchase price calculated on the same basis upon which Bankers' Acceptances of a
comparable amount would be discounted if they were purchased by the Agent
hereunder, less an amount equal to the Stamping Fees as set forth in Section
8.2. Each change in the Bankers' Acceptance Stamping Fee shall take effect
automatically without notice to the Borrower.
For all purposes of this Agreement, Discounted Advances (and any
promissory note evidencing same) made available by a Lender to the Borrower in
lieu of Bankers' Acceptances shall be considered and treated hereunder in the
same manner as a Bankers' Acceptance issued by the Borrower and purchased by
such Lender at a discount.
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4.8 PRO RATA TREATMENT OF BORROWINGS
Each Borrowing shall be made available by each of the Lenders in
accordance with its Pro Rata Share. No Lender shall be responsible for the
Commitment of any other Lender. The failure of a Lender to make available a
Borrowing in accordance with its obligations under this Agreement shall not
release any other Lender from its obligations hereunder. No Lender shall be
obligated to make Borrowings available to the Borrower in excess of its
Commitment.
Notwithstanding the foregoing, the Agent shall be entitled at any time
to request accommodations of the Lenders otherwise than in accordance with their
Pro Rata Share if such action is required by and consistent with normal money
market practices.
4.9 ADJUSTMENTS OF US DOLLAR BORROWINGS TO THE EQUIVALENT AMOUNT
Where at any particular time the Borrower has availed itself of US
Dollar Borrowings and, by reason of fluctuations in the exchange rate applicable
thereto, the Equivalent Amount of the US Dollar Borrowings together with all
other Borrowings outstanding hereunder (i) at any time, is greater than the
amount that is above three percent (3%) of the Available Commitment at the
particular time, or (ii) on the first day of any Calendar Quarter, is greater
than the Available Commitment at the particular time, then the Borrower shall,
if so requested by the Agent, forthwith pay to the Lenders such excess amount,
subject to the Borrower's rights to reborrow such amount or part thereof if, on
the basis of a future calculation made by the Agent, the Agent determines that
the aggregate amount of US Dollar Borrowings and all other Borrowings
outstanding hereunder is less than the Available Commitment at the particular
time.
All payments made by the Borrower to the Lenders pursuant to this
Section shall be applied by the Lenders firstly to reduce outstanding Base Rate
Loans and the balance, if any, shall be held by the Agent in a cash collateral
account and shall be applied by the Agent to the reduction of outstanding LIBOR
Loans as soon as the same may be repaid in accordance with the scheduled
maturity thereof. Any funds held by the Agent in such cash collateral account
from time to time shall bear interest in favour of the Borrower at the rate(s)
normally paid by the Agent on deposits of similar currency, amounts and
maturities. The provisions of this Section 4.9 shall apply throughout the term
of this Agreement.
ARTICLE V
CONVERSIONS AND REPAYMENTS
5.1 CONVERSION OF BORROWINGS
Subject to Sections 4.2 through 4.7, and to Section 11.5, the Borrower
may during the Revolving Period, convert any basis of Borrowing into another
basis of Borrowing on any Business Day upon the Lead Borrower giving a notice of
conversion in form and substance as provided in Schedule 5.1 within the delays
specified in Sections 4.2, 4.3, 4.4 or 4.5, as the case may be.
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5.2 REPAYMENTS OF BORROWINGS
The Credit Facility is a revolving facility, and consequently the
Borrower may at any time during the Revolving Period, repay the Borrowings
without penalty subject, in the case of Locked-in Borrowings, to the provisions
of Section 11.5, and the Borrower may at any time borrow and reborrow amounts
under the Credit Facility in accordance with the provisions of Article IV of
this Agreement.
Notwithstanding the above, all Borrowings under the Credit Facility
shall have been fully and finally repaid to the Lenders no later than on the
Maturity Date.
5.3 OPTIONAL REDUCTION OF AVAILABLE COMMITMENT
The Lead Borrower shall have the option at any time, subject to giving
the Agent five (5) Business Days irrevocable prior written notice to that effect
in the form and substance of Schedule 5.3, to cancel all or part of the Total
Commitment and thus permanently reducing the Available Commitment by an equal
amount as and from the date that such cancellation takes effect. No such
commitment cancellation may be made for less than one million dollars
($1,000,000) or whole multiples thereof, except where the entire balance of the
Total Commitment is cancelled.
Where on the effective date of a commitment cancellation, the unpaid
balance of borrowings is greater than the Total Commitment as reduced pursuant
to such cancellation, the Borrower shall pay the difference to the Lenders first
by paying down the Floating Rate Loans and, to the extent necessary, by
reimbursing Locked-in Borrowings on a timely basis in accordance with the
scheduled maturity thereof.
ARTICLE VI
EVIDENCE OF INDEBTEDNESS
6.1 EVIDENCE OF INDEBTEDNESS
The Agent shall open and maintain on its books at the Agent's Branch of
Account, accounts and records evidencing the Borrowings made available to the
Borrower by each of the Lenders under this Agreement. The Agent shall record
therein the amount of such Borrowings and each payment of principal and interest
on the loans and shall record the Bankers' Acceptances accepted, paid and
cancelled by each Lender and all other amounts becoming due to the Lenders (and
to the Agent in its capacity as agent) under this Agreement including Stamping
Fees, Letters of Credit fees, standby fees, extension fees and administration
fees, and all payments on account thereof. Such accounts and records maintained
by the Agent on behalf of each of the Lenders will constitute, in the absence of
manifest error, prima facie evidence of the indebtedness of the Borrower to each
Lender pursuant to this Agreement, the date each Lender made each Borrowing
available and the amounts the Borrower has paid from time to time on account
thereof. The provisions of this Section 6.1 shall apply to any Borrowings by way
of Overdraft and Letters of Credit in accordance with Section 9.1 below.
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ARTICLE VII
INTEREST
7.1 PAYMENT OF INTEREST ON PRIME RATE LOANS
On each Interest Payment Date the Borrower shall pay to the Agent for
the account of the Lenders interest at a rate per annum equal to the Prime Rate,
plus the Applicable Prime Rate Margin, in respect of all outstanding Borrowings
by way of Prime Rate Loans.
The Borrower shall, on each Interest Payment Date, pay such interest in
Canadian Dollars monthly in arrears for the period up to and including the last
day of the month. The Agent shall calculate such interest in respect of each day
on the basis of the actual number of days elapsed in the particular calendar
year. Each change in the Prime Rate will take effect automatically without
notice to the Borrower.
7.2 PAYMENT OF INTEREST ON BASE RATE LOANS
On each Interest Payment Date the Borrower shall pay to the Agent for
the account of the Lenders interest at a rate per annum equal to the Base Rate,
plus the Applicable Base Rate Margin, in respect of all outstanding Borrowings
by way of Base Rate Loans.
The Borrower shall, on each Interest Payment Date, pay such interest in
US Dollars monthly in arrears for the period up to and including the last day of
the month. The Agent shall calculate such interest in respect of each day on the
basis of the actual number of days elapsed in the particular calendar year. Each
change in the Base Rate will take effect automatically without notice to the
Borrower.
7.3 PAYMENT OF INTEREST ON LIBOR LOANS
On each LIBOR Interest Payment Date, the Borrower shall pay the Agent
for the account of the Lenders interest in US Dollars on Borrowings by way of
LIBOR Loans at a rate per annum equal to LIBOR plus the Applicable LIBOR Margin,
on the applicable LIBOR Interest Payment Date.
The Agent shall calculate the interest daily on the basis of the actual
number of days elapsed divided by three hundred and sixty (360). For the purpose
of the Interest Act (Canada), the yearly rates of interest to which the rates
determined in accordance with this Section 7.3 are equivalent, are the rates so
determined, multiplied by the actual number of days in the particular calendar
year and divided by three hundred and sixty (360).
Upon determination, on the LIBOR Interest Payment Date, of the rate of
interest applicable to a LIBOR Loan, the Agent shall notify the Borrower of this
rate which, in the absence of manifest error, shall then be binding on the
Borrower and the Lenders.
- 20 -
7.4 INTEREST ON OVERDUE INTEREST
Any payment of interest or portion thereof which is not paid by the
Borrower on its due date as provided herein shall itself bear interest in the
same currency and at the rate in effect from time to time hereunder with respect
to the relevant Borrowing.
ARTICLE VIII
FEES
8.1 COMMITMENT FEE
The Borrower shall pay to the Agent, for the account of the Lenders, a
commitment fee (the "COMMITMENT FEE") at a rate per annum for any given day
applied to the unused available portion of the Credit Facility, equal to the
Commitment Fee Rate, calculated in arrears on the basis of the actual number of
days elapsed divided by 365, payable quarterly in arrears on the last day of
each of the Calendar Quarters in every year, and on the day on which (i) the
Borrowings are fully repaid to the Lenders by the Borrower in principal,
interest and costs, and (ii) the Lenders have no further obligation to make any
Borrowing available to the Borrower. This Commitment Fee will be computed from
December 27, 2001, with the first of such payments to be made for the period
ending on March 31, 2002.
8.2 STAMPING FEES
Where the Lead Borrower notifies the Agent that a Borrowing is to be
made by way of Bankers' Acceptances, the Borrower shall pay the Agent for the
account of each Lender having accepted such Bankers' Acceptances, forthwith upon
the acceptance of each such Bankers' Acceptance, Stamping Fees in Canadian
Dollars in each case calculated by multiplying the face value of each Bankers'
Acceptance so accepted by the Applicable Stamping Fee and on the basis of the
number of days to maturity of such Bankers' Acceptance based on a three hundred
and sixty five (365) day year.
8.3 STRUCTURING FEE
The Borrower shall pay to the Agent such fees relating to the
structuring of this Credit Facility as have been agreed to prior to the date
hereof or as may be agreed during the Term.
8.4 SYNDICATION AND AGENCIES FEES
The Borrower shall pay in advance to the Agent such agency and
syndication fee relating to syndication and relating to its services as Agent,
as may be agreed to during the Term hereof, it being understood that the Agent
shall have no obligation to syndicate this Credit Facility.
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ARTICLE IX
LETTERS OF CREDIT AND OVERDRAFT CARVE-OUT
9.1 LETTERS OF CREDIT AND OVERDRAFT CARVE-OUT
For cash management and general operating requirements of the Borrower,
a C$5,000,000 (or the Equivalent Amount thereof) Overdraft and Letter of Credit
facility carve-out will be established by the Canadian Imperial Bank of
Commerce, upon terms and conditions, including Letter of Credit fees, and
evidenced by such documents, contracts and agreements, as may be agreed upon
from time to time between the Canadian Imperial Bank of Commerce and any of the
Lead Borrower or any Designated Subsidiary; provided that interest rates on the
Overdraft shall be the same, as the case may be, as those provided for Prime
Rate Loans and Base Rate Loans under this Agreement. Such documents, contracts
and agreements may consist, inter alia, of one or many Group Banking Agreements,
one or many Cash Management Services Agreements, or one or many similar
Centralized Cash Management Agreements (collectively, the "CCC"), being agreed
that such CCC may include and encompass Persons other than the Borrower
hereunder, with which the Borrower specifically agrees by its signature to these
presents. Any utilization of this Overdraft and Letter of Credit facility
carve-out shall be considered a Borrowing, and shall rank pari passu with the
other utilizations of this Credit Facility.
ARTICLE X
CHANGES IN CIRCUMSTANCES
10.1 INCREASED COSTS
If the introduction of or any change in any applicable law, regulation,
treaty, official directive or regulatory requirement (whether or not having the
force of law), or any change in the interpretation or application thereof by any
court or by any governmental or other authority or entity charged with the
administration thereof:
(a) subjects a Lender to any Tax, changes the basis of any Tax, or
increases any Tax, on payments of principal, interest or other amounts
payable by the Borrower to a Lender under this Agreement;
(b) imposes, modifies or deems applicable any reserve, special deposit or
similar requirements against assets held by, or deposits in or for the
account of, or loans by, or any other acquisition of funds by a Lender;
(c) imposes, modifies, or deems applicable to a Lender any capital
adequacy, capital maintenance, or similar requirements; or
(d) imposes on a Lender any other condition with respect to this Agreement;
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and the result of (a), (b), (c) or (d) is to:
(i) increase the cost actually incurred by that Lender or to
reduce the income receivable by it in respect of its
Commitment or of any Borrowing; or
(ii) reduce that Lender's return on capital to a level below that
which such Lender could have achieved but for such
circumstances.
then the Borrower shall either:
(e) pay to such Lender that amount ("ADDITIONAL COMPENSATION") which
compensates the Lender for such additional cost (excluding
administrative expenses) or reduction referred to in sub-paragraphs
(d)(i) or (d)(ii) above; or
(f) make with such Lender such other arrangements as the Lender shall deem
satisfactory for the prepayment or termination of such credit
facilities or their conversion into other Borrowings available to the
Borrower hereunder, and pay to such Lender the amount of Additional
Compensation which may have been incurred up to the date of such
prepayment, termination or conversion as well as any reasonable
out-of-pocket expenses which such Lender may have incurred or suffered
(including any amount to which reference is made in Section 11.5) as a
result of such termination or conversion.
Upon the Lender having determined that it is entitled to Additional
Compensation, it shall promptly notify the Lead Borrower. For such purpose, the
Lender shall submit to the Lead Borrower a certificate signed by a duly
authorized officer of the Lender setting forth the amount of the Additional
Compensation and the basis for it and such certificate will be prima facie
evidence, in the absence of manifest error, of the amount of the Additional
Compensation.
In the event that they are legally capable of doing so, the Lenders
agree to take all reasonable steps to avoid or mitigate any such increased costs
by amending or modifying this Agreement or otherwise, with a view to reducing
the impact of any such events.
10.2 ILLEGALITY
If the introduction of or any change in applicable law, regulation,
treaty, official directive or regulatory requirement (whether or not having the
force of law), or any change in the interpretation or application thereof by any
court or by any governmental or other authority charged with the administration
thereof, makes it unlawful, or prohibited for a Lender (in its sole opinion) to
make, to fund or to maintain the Borrowings or a portion thereof or to perform
its obligations under this Agreement, such Lender may, by written notice to the
Agent (which will promptly transmit such notice to the Lead Borrower) terminate
its obligations under this Agreement (or the portion thereof affected by such
change), whereupon the Borrower shall pay to such Lender the Borrowings or the
portion thereof which has been determined to be unlawful or prohibited, such
payment (together with accrued and unpaid interest thereon) to be made by the
Borrower not later than on the Business Day such illegality or prohibition takes
effect (subject always to Sections 11.5 and 11.6) or, at the Borrower's option,
make with such Lender such other arrangements as the Lender shall deem
satisfactory for the conversion of such credit facilities into other Borrowings
available to the Borrower hereunder.
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10.3 SUBSTITUTE BASIS - ALTERNATE INTEREST RATE
If the Lender determines in good faith that:
(a) adequate and fair means do not exist for ascertaining the rate of
interest on a LIBOR Loan for the ensuing LIBOR Interest Period, or
(b) the making or the continuing of a LIBOR Loan as a LIBOR Loan has become
impracticable by an event materially or adversely affecting the London
interbank market, or
(c) deposits in US Dollars are not available to it in the London interbank
market in sufficient amounts in the ordinary course of business for the
ensuing LIBOR Interest Period,
then, the affected Lender shall immediately notify the Agent
and the Lead Borrower in writing, and the Lead Borrower shall be deemed
to have given the Agent notice to convert the maturing LIBOR Loan into
a Base Rate Loan, if available, or otherwise into a Prime Rate Loan.
ARTICLE XI
PAYMENTS, TAXES AND INDEMNITY
11.1 TIME AND PLACE OF PAYMENTS
The Borrower shall make all payments pursuant to this Agreement for
value on the date of payment not later than 11:00 a.m. (Eastern Time) at the
Agent's Branch of Account. Whenever a payment is due to be made on a day which
is not a Business Day, the day for payment is the next following Business Day
unless, in the case of a LIBOR Loan, the payment would then fall in the next
calendar month, in which case it will be due on the immediately preceding
Business Day.
11.2 PAYMENTS NET OF TAXES
The Borrower shall make all payments pursuant to this Agreement without
set-off or counterclaim and, except as otherwise provided by law, all such
payments shall be free and clear of, and exempt from, and without deduction for
or on account of, any Tax. If any Tax is required to be deducted or withheld
from any payment to be made by the Borrower hereunder (in particular, and
without restricting the generality of these presents, should the Lead Borrower
utilize the credit facilities offered hereby in its capacity of Borrower, and
withholding taxes are levied on payments made to the Lenders or any of them by
the taxing authorities of the United States of America), the Borrower shall
promptly remit to the Lenders concerned such additional amount as may be
necessary so that the net amount received by each Lender concerned after all
required withholdings or deductions will not be less than the amount that such
Lender would have received had such Tax not been withheld or deducted. If any
Tax is required to be deducted or withheld from any payment made by the Borrower
hereunder, the Borrower shall:
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(a) make such withholding or deduction;
(b) remit the full amount deducted or withheld to the relevant taxing
authority; and
(c) furnish to the relevant Lender within 30 days after the date on which
the payment of any Tax is due, certified copies of any receipt
evidencing such payment by the Borrower.
The Borrower further covenants to indemnify the Lenders in respect of
any claim or loss incurred as a result of the Borrower's delay or failure to
remit to the taxing authorities amounts so deducted or withheld in respect of
any such Tax, including penalties and interest after any Lender concerned has
given notice to the Borrower of such claim or loss.
At the Agent's request, the Borrower shall from time to time execute
and deliver any and all further documents as may be necessary or advisable to
give full force and effect to any increase in the rate of interest or fees which
is necessary to yield to the Lenders interest and fees at the aforesaid rates.
11.3 EXPENSES AND INDEMNITY
The Borrower shall supply all statements, reports, certificates,
opinions and other documents or information required to be furnished to the
Lenders pursuant to this Agreement without cost to the Lenders.
The Borrower further agrees and covenants:
(a) to promptly pay the Agent all reasonable expenses which the Agent shall
have incurred in connection with the preparation, negotiation and
execution of this Agreement,
(b) to pay all the expenses the Lenders incurred in the enforcement and
preservation of any of their rights under this Agreement, including,
without limitation, all reasonable legal fees and out-of-pocket
expenses of counsel to the Lenders, and
(c) to indemnify the Lenders against any loss, reasonable expense or
liability which any of them sustains or incurs as a consequence of:
(i) a default by the Borrower in the payment of any sum due
pursuant to this Agreement, including, but not limited to, all
sums (whether in respect of principal, interest, prepayment
penalties, breakage costs or otherwise) paid or payable to any
lender of funds borrowed by the Lenders in order to maintain
the amount of any unpaid amount; and
(ii) a default of the Borrower to borrow in the amount and on the
date specified in any Notice of Borrowing or notice of
conversion given pursuant hereto (whether such default results
from the failure of the Borrower to satisfy the conditions of
a Borrowing, or otherwise), or to give sufficient notice with
respect to any Borrowing or conversion pursuant to Sections
4.2 through 4.7, as the case may be.
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A certificate of the Lender so affected setting out the basis for the
determination of the amount necessary to indemnify it in respect of such loss,
expense or liability shall be, in the absence of manifest error, prima facie
evidence of the facts therein set forth. In the case of breakage costs, the
calculation thereof shall be made by the affected Lender in accordance with
standard industry practices.
11.4 SURVIVAL OF INDEMNIFICATION
Without prejudice to the survival or termination of any other covenant
of the Borrower under this Agreement, the obligations of the Borrower under
Sections 11.2 and 11.3 shall survive the repayment in full of all the Borrowings
and shall remain in effect until the third anniversary date of the date of the
final payment made hereunder, whether such payment is of principal, interest,
fees or otherwise.
11.5 REPAYMENT OR CONVERSION OF LOCKED-IN BORROWINGS
Notwithstanding anything herein contained to the contrary, no Locked-in
Borrowing may be repaid or converted by the Borrower prior to the scheduled
maturity thereof except with the prior consent of the Lenders, which consent
shall only be granted upon such terms and conditions with respect to timing,
breakage costs or otherwise as the Lenders shall alone determine in their
reasonable discretion; provided, however, that if the non-payment of a Locked-in
Borrowing or portion thereof renders the Borrower in default of maintaining the
Borrowings at or below the Available Commitment at any particular time, the
Lenders may nevertheless demand such payment and charge the Borrower with the
relative breakage costs, if any.
11.6 CALCULATION OF BREAKAGE COSTS
Wherever in this Agreement a determination must be made of any
repayment penalties, breakage costs or other costs actually incurred (other than
administrative expenses) related to the repayment, the conversion or termination
of any Borrowing, such determination shall be made by the Lenders on the basis
of calculations submitted by the Lenders concerned and accepted by the Lenders
as being fair and reasonable in the circumstances.
11.7 APPLICATION OF PAYMENTS
Any sum received by the Agent, at any time before or after the
Borrowings have been declared immediately due and payable, and which the Agent
is obliged to apply in or towards the satisfaction of sums due from the Borrower
hereunder shall (except as otherwise provided in this Agreement) be applied by
the Agent:
(a) firstly, in or towards payment of any fees or expenses, if any, then
due and payable by the Borrower to the Agent in connection with the
administration or the provision of its services as Agent;
(b) secondly, among the Lenders in accordance with each Lender's Pro Rata
Share in or towards the payment of any amounts due and payable by the
Borrower as and by way of recoverable expenses;
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(c) thirdly, among the Lenders in accordance with each Lender's Pro Rata
Share in or towards payment of any interest, fees (including standby
fees) or default interest then due and payable on or in respect of the
Borrowings (including amounts owed in this regard under the Overdraft
and Letter of Credit facility carve-out referred to in Section 9.1
above);
(d) fourthly, in or towards repayment of any principal amounts of the
Borrowings (including amounts owed in this regard under the Overdraft
and Letter of Credit facility carve-out referred to in Section 9.1
above); and
(e) fifthly, among the Lenders in accordance with each Lender's Pro Rata
Share in or towards satisfaction of any other amount then due and
payable by the Borrower.
ARTICLE XII
PREDISBURSEMENT CONDITIONS
12.1 CONDITIONS PRECEDENT TO INITIAL BORROWING
The obligation of the Lenders to make a loan on the occasion of the
initial Borrowing is subject to and conditional upon the satisfaction of each of
the following terms and conditions:
(a) each Lender shall have received a duly executed copy of this Agreement;
(b) each Lender shall have received in form and substance reasonably
satisfactory to it:
(i) a duly certified copy of a resolution of the Board of
Directors of the Borrower authorizing it to become a party to
and to perform its obligations under this Agreement;
(ii) a certificate of incumbency of the Borrower setting forth the
name of the individuals authorized to execute cheques, notes,
bills of exchange, notices and all other documents and
instruments required to be executed by the Borrower pursuant
to this Agreement;
(iii) a certified copy of the constating documents of the Borrower;
(c) each Lender shall have received an opinion of counsel concerning the
Borrower, addressed to the Agent and the Lenders in form and substance
reasonably satisfactory to each Lender and substantially as provided in
Schedule 12.1(c);
(d) the Agent shall have received an initial Notice of Borrowing;
(e) the Agent shall have received a Borrowing Base Certificate in form and
substance reasonably satisfactory to each Lender and substantially as
provided in Schedule 12.1(e) at least three (3) Business Days before
the initial Borrowing;
(f) no Event of Default having occurred and no other event having occurred,
which with the giving of notice, lapse of time, or both, would
constitute an Event of Default;
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(g) each Lender shall have received any other documents and information
which it has reasonably requested;
(h) each Lender shall have approved the corporate structure of the Borrower
and of its parents, Affiliates and Subsidiaries, as the case may be,
and the sources and uses of funds available to the Borrower; and
(i) the representations and warranties in Article II being true and correct
with the same effect as though made or restated as of the date of the
initial Borrowing, except with respect to Schedules 2.1(o) and 2.1(p)
to this Agreement, which may be amended in accordance with the
provisions of this Agreement.
12.2 CONDITIONS PRECEDENT TO ALL OTHER BORROWINGS
The obligation of the Lenders to make available any further Borrowing
pursuant to Article III is subject to and conditional upon:
(a) the representations and warranties in Section 2.1 being true and
correct with the same effect as though made or restated as of the
Drawdown Date, except with respect to Schedules 2.1(o) and 2.1(p) to
this Agreement, which may be amended in accordance with the provisions
of this Agreement.
(b) the Agent receiving the Notice of Borrowing;
(c) the Agent shall have received a Borrowing Base Certificate in form and
substance reasonably satisfactory to each Lender and substantially as
provided in Schedule 12.1(e);
(d) no Event of Default having occurred and no other event having occurred,
which with the giving of notice, lapse of time, or both, would
constitute an Event of Default;
(e) each Lender having received a copy of any amendment to the constating
documents of the Borrower; and
(f) each Lender having received from the Borrower any other document and
information which it has requested in its reasonable discretion.
12.3 WAIVER
The terms and conditions of Sections 12.1 and 12.2 are inserted for the
sole benefit of the Lenders and may be waived by the Majority Lenders in whole
or in part with or without terms or conditions, in respect of any Borrowing
without prejudicing the right of the Majority Lenders to assert these terms and
conditions in whole or in part in respect of any other Borrowing.
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ARTICLE XIII
COVENANTS
13.1 AFFIRMATIVE COVENANTS OF THE BORROWER
So long as the Lenders have any Commitment to the Borrower under this
Agreement or the Borrower is indebted to the Lenders hereunder, the Borrower
covenants with the Lenders that it will:
(a) duly and punctually pay all sums of money due by it under the terms of
this Agreement at the times, places and in the manner provided for by
this Agreement;
(b) (i) do or cause to be done all things necessary to preserve and keep in
full force and effect its existence, rights and franchises; (ii)
continue to conduct its business substantially as now conducted or as
otherwise permitted hereunder; and (iii) at all times maintain,
preserve and protect its patents, trademarks and trade names in
accordance with its normal business practice, and preserve all the
remainder of its property, in use or useful in the conduct of its
business, and keep the same in good operating condition (taking into
consideration ordinary wear and tear) and from time to time make, or
cause to be made, all needed and proper repairs, renewals and
replacements, betterments and improvements thereto consistent with
industry practices, so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
(c) promptly give notice to the Agent of the occurrence of any Event of
Default or any event which, with the giving of notice or lapse of time,
or both, would constitute an Event of Default, specifying the nature
thereof, the period of existence thereof and what action the Borrower
has taken or proposes to take with respect thereto;
(d) promptly give notice to the Agent of the occurrence of any litigation,
proceeding or dispute affecting the Borrower which, if determined
adversely, could reasonably be expected to have a Material Adverse
Effect, and provide on a timely basis all reasonable information
requested by the Agent from time to time concerning the status of any
such litigation, proceeding or dispute;
(e) keep adequate records and books of account with respect to its business
activities, in which proper entries, reflecting all of its material
financial transactions, are made in accordance with prudent management
and sound business practice;
(f) from time to time deliver to the Lenders any other financial and
operating reports and statements which the Lenders may reasonably
request, including:
(i) financial and shareholder information and compliance
certificates including an annual budget; and
(ii) upon request from the Agent, a summary list of aged accounts
receivable and inventory by subsidiary;
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(g) maintain or cause to be maintained, with financially sound and
reputable insurers, physical damage and liability insurance with
respect to its properties and business, against loss or damage of the
kinds customarily insured against by corporations of established
reputation engaged in the same or similar businesses and similarly
situated, and of such types and in such amounts as are customarily
carried under similar circumstances by such other corporations;
(h) comply with all federal, provincial and local Laws applicable to it,
including, without limitation, those regarding the collection, payment
and deposit of taxes, employees' income, unemployment, social security
or Canada Pension Plan contributions or payments, and those relating to
any environmental matters where the failure to comply could reasonably
be expected to have a Material Adverse Effect;
(i) carry on its business in compliance with all environmental Laws and
with any governmental permit or license applicable thereunder which may
be necessary or desirable to permit such business to be carried on as
now conducted and to own or lease and operate its assets;
(j) after prior notice reasonable in the circumstances, grant unobstructed
access to any of its assets, properties, books and records, in order
for any Lender and its authorized representatives and agents to verify
compliance by the Borrower of its obligations hereunder;
(k) conduct all material transactions with its Affiliates in a manner
consistent with prudent management and sound business practices; and
(l) there shall be maintained in force at all times (i) a deed of movable
hypothec in the Province of Quebec to be granted by each of the Lead
Borrower and the Designated Subsidiaries in favour of the Lenders
(collectively, the "HYPOTHECS"), in form and substance reasonably
satisfactory to the Agent, together with the appropriate documents
necessary to register the Hypothecs, in order to grant to the Lenders a
first ranking hypothec on all inventory located in the Province of
Quebec and accounts receivable, present and future, of each of the Lead
Borrower and the Designated Subsidiaries, which Hypothecs shall secure
all of the Borrower's obligations under the Credit Agreement, including
all of the Borrower's obligations with respect to the Overdraft and
Letter of Credit facility and (ii) the guarantee provided in Section
427 of the Bank Act (Canada) for the Lead Borrower and the Designated
Subsidiaries (the "427 DOCUMENTS").
13.2 AFFIRMATIVE COVENANTS OF THE LEAD BORROWER
So long as the Lenders have any commitment to the Borrower under this
Agreement or the Borrower is indebted to the Lenders hereunder, the Lead
Borrower covenants with the Lender that it will:
(a) provide to the Agent within one hundred and five (105) days after the
end of each of the fiscal years of the Parent, with sufficient copies
for the Lenders, of the audited consolidated financial statements of
the Parent for the fiscal year so ended, as supplied to the US Lenders
under the US Credit Agreement;
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(b) deliver to the Agent within fifty (50) days after the end of each of
the fiscal quarters of the Parent (except for the last quarter of each
fiscal year), with sufficient copies for the Lenders, of the interim
unaudited quarterly consolidated financial statements of the Parent, as
supplied to the US Lenders under the US Credit Agreement; and
(c) provide the Agent within one hundred and five (105) days after the end
of each of the fiscal years of the Lead Borrower, with sufficient
copies for the Lenders, of the consolidated financial statements of the
Lead Borrower for the fiscal year so ended, together with a review
engagement report from chartered accountants reasonably satisfactory to
the Agent.
Information required to be delivered pursuant to paragraphs 13.2(a) and
13.2(b) above shall be deemed to have been delivered on the date on which such
information has been posted on the Securities and Exchange Commission of the
United States of America website on the Internet (xxx.xxx.xxx).
13.3 NEGATIVE COVENANTS OF THE BORROWER
So long as the Lenders have any Commitment to the Borrower under this
Agreement or the Borrower is indebted to the Lenders hereunder, the Borrower
covenants with the Lenders that it will not do or permit to be done any of the
following, without the prior consent of the Majority Lenders confirmed in
writing by the Agent to the Lead Borrower:
(a) directly or indirectly, by operation of law or otherwise, merge,
amalgamate or consolidate with or into, acquire all or substantially
all of the assets or capital stock of, or otherwise combine with, any
other Person;
(b) enter into any material transaction or material agreement, or allow any
material change in its business;
(c) sell, lease, assign, transfer or otherwise dispose of any material
assets, whether now owned or hereafter acquired; provided, however,
that this shall not prevent the Borrower from disposing of and
replacing any assets in the ordinary course of business;
(d) create, incur or permit to exist, any further Debt after the date
hereof, with the exception of (i) trade accounts payable incurred in
the ordinary course of business and (ii) lease obligations under
operating leases entered into in the ordinary course of business and
(iii) inter-company loans from an Affiliate, subordinated at all times
to any amount advanced under this Credit Facility; and
(e) create, assume or suffer to exist, or allow any of its Subsidiaries to
create, assume or suffer to exist, any Lien on any asset now owned or
hereafter acquired by it and located in Canada, other than the Security
Documents.
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ARTICLE XIV
EVENTS OF DEFAULT
14.1 EVENTS OF DEFAULT
The occurrence of any of the following events constitutes an Event of
Default under this Agreement:
(a) the non-payment on its due date, whether due by acceleration or
otherwise, of any payment of principal due to the Lenders or to the
Agent under this Agreement, the non-payment within three (3) days of
its due date, whether due by acceleration or otherwise, of any payment
of interest or of any fees due to the Lenders or to the Agent under
this Agreement, or the non-payment within three (3) days after written
notice of any other amount payable by a Borrower to any Lender under
this Agreement;
(b) any representation or warranty made by the Lead Borrower or any
Designated Subsidiary in or pursuant to this Agreement or any
information furnished by the Lead Borrower or any Designated Subsidiary
in writing to the Agent or a Lender is found to have been incorrect in
any material respect when made or given or deemed to have been made or
given;
(c) the continued material breach or failure of due performance by the Lead
Borrower or any Designated Subsidiary of any covenant or provision of
this Agreement, other than those set forth in paragraphs (a) and (b) of
this Section, which has not been remedied within thirty (30) days after
written notice to do so by the Agent, including the obligation to
maintain its pension plans funded as required by law and in good
standing;
(d) the Lead Borrower or any Designated Subsidiary fails to fulfill any
obligation, or to pay to any third person any indebtedness in excess of
$2,000,000 (other than indebtedness owing hereunder and trade payables
in the normal course), whether at scheduled maturity or by required
prepayment, acceleration, demand or otherwise, and this failure
continues after the applicable grace period, if any, specified in the
agreement or instrument relating to such obligation or indebtedness; an
event of default occurs under any material agreement or instrument,
which would cause a Material Adverse Effect; or any other event occurs,
if the effect of such event is to accelerate, or to permit the
acceleration of, the maturity of any obligation or indebtedness; or any
obligation or indebtedness is declared to be exigible, or due and
payable, or required to be prepaid (other than by a regularly scheduled
required payment) prior to its stated term or maturity;
(e) the Lead Borrower or any Designated Subsidiary admits in writing its
inability to pay its debts generally as they become due;
(f) the Lead Borrower or any Designated Subsidiary makes a general
assignment for the benefit of its creditors;
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(g) the Lead Borrower or any Designated Subsidiary submits to or makes any
application for the process of suspension of payments;
(h) the Lead Borrower or any Designated Subsidiary petitions to or applies
to any tribunal or authority for, or has or suffers to be appointed,
any administrator, custodian, receiver, trustee or intervenor for it or
for any substantial part of its property;
(i) the Lead Borrower or any Designated Subsidiary enters into any
settlement in connection with any reorganization or bankruptcy that is
related to its insolvency or bankruptcy or that of another entity
constituting the Borrower;
(j) the Lead Borrower or any Designated Subsidiary commences or has
commenced against it, any proceedings under any law, statute,
regulation or decree whether now or subsequently in effect, relating to
the payment of its debts or its reorganization, arrangement,
adjustment, dissolution or liquidation under any law relating to
bankruptcy, insolvency or relief of debtors, unless, if such
proceedings have been commenced by another person, they are being
actively contested in good faith by the Lead Borrower or any Designated
Subsidiary, as the case may be;
(k) the Lead Borrower or any Designated Subsidiary by any act indicates its
consent to, approval of or acquiescence in any bankruptcy,
reorganization or insolvency proceeding under any law relating to
bankruptcy, insolvency or relief of debtors, or any proceeding for the
appointment of a receiver, custodian or trustee for itself or for any
substantial part of its property, or suffers any receivership or
trustee to remain undischarged for a period of ten (10) days;
(l) a writ, execution, attachment or similar process is issued or levied
against all, or a substantial portion of, the property of the Lead
Borrower or any Designated Subsidiary in connection with any judgment
against the Lead Borrower or any Designated Subsidiary, as the case may
be, in any amount which materially affects the property of the Lead
Borrower or any Designated Subsidiary, as the case may be, and unless
contested in good faith by the Lead Borrower or any Designated
Subsidiary, as the case may be, the writ, execution attachment or
similar process is not released, bonded, satisfied, discharged, vacated
or stayed within thirty (30) days after its entry, issuance
commencement or levy;
(m) an encumbrancer or lienor takes possession of, or seizes, a substantial
part of the property of the Lead Borrower or any Designated Subsidiary,
or a prior notice by a creditor intending to exercise a hypothecary
right against the Lead Borrower or any Designated Subsidiary is served
upon the Lead Borrower or any Designated Subsidiary, or is filed at a
registry office, unless such taking of possession, seizure or prior
notice is manifestly done, served or filed illegally, as reasonably
determined by the Agent;
(n) the occurrence of any event which has a Material Adverse Effect, and
such situation has not been remedied, or adequate remedial action
commenced, to the reasonable satisfaction of the Majority Lenders,
within thirty (30) days after written notice thereof by the Agent to
the Lead Borrower; and
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(o) a Default or an Event of Default occurs under the US Credit Agreement
and is not remedied within the delay provided in this regard, if any,
in the US Credit Agreement.
14.2 ACCELERATION
Upon the occurrence of any Event of Default, the Agent may, by notice
to the Lead Borrower, terminate the right of the Borrower to apply for a
Borrowing whereupon all outstanding Borrowings (including the principal amount
of all outstanding Bankers' Acceptances and Letters of Credit, if any), all
accrued and unpaid interest and all other indebtedness of the Borrower pursuant
to this Agreement, shall be immediately due and payable without presentation,
demand, protest or other notice of any kind, all of which are expressly waived
by the Borrower. The Borrower must then immediately pay to the Lenders all
outstanding Borrowings, including all contingent liabilities of any Lender under
outstanding Letters of Credit and the face amount of all outstanding Bankers'
Acceptances. After all outstanding Borrowings are repaid, in the event an
outstanding Letter of Credit matures without having been drawn upon, the amount
paid to the Lenders as provision for such contingent liability will be returned
to the Borrower.
Should the Lenders or any of them actually incur breakage costs or
losses in connection with the early payment or termination of Locked-in
Borrowings, such costs and losses (other than administrative expenses) will be
added to the indebtedness of the Borrower to such Lender(s) hereunder.
14.3 REMEDIES CUMULATIVE
The Borrower expressly agrees that the rights and remedies of the
Lenders under this Agreement are cumulative and are in addition to, not in
substitution for, any rights or remedies provided by law; any single or partial
exercise by the Lenders of any right or remedy for a default or breach of any
term, covenant, condition or agreement in this Agreement does not affect its
rights and does not waive, alter, affect, or prejudice any other right or remedy
to which the Lenders may be lawfully entitled for the same default or breach.
14.4 WAIVERS
No express or implied waiver by the Lenders, whether or not through the
Agent, or by the Agent on behalf of the Lenders, of any Event of Default shall
in any way be or be construed to be a waiver of any future or subsequent Event
of Default. To the extent permitted by applicable law, and on the condition that
the within mentioned waiver be permitted by public order the Borrower hereby
waives any rights now or hereafter conferred by statute or otherwise which may
limit or modify any of a Lenders' rights or remedies under this Agreement.
14.5 SET-OFF
In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, each Lender is hereby
authorized (but not obligated), at any time or from time to time if an Event of
Default has occurred and is continuing, without prior notice to the Borrower or
to any other person, any such prior notice being expressly waived by the
Borrower, to set-off and to apply any and all deposits (general or special) held
from or in the
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name of the Borrower by the applicable Lender and any indebtedness or liability
at any time owing or payable by such Lender to or for the credit of or the
account of the Borrower, against and on account of the obligations owing or
payable by the Borrower to such Lender under this Agreement, irrespective of the
currency in which such obligations are denominated. In the event of such
set-off, each Lender having operated such set-off agrees to give a notice of
such operation to the Lead Borrower within a reasonable delay in accordance with
normal banking practices thereafter, for purposes of information only.
ARTICLE XV
THE AGENT
15.1 AUTHORIZATION OF AGENT
Each Lender irrevocably appoints and authorizes the Agent to be its
agent and to take all action as agent on its behalf and to exercise such powers
and perform such duties under this Agreement as are delegated to the Agent by
its terms, together with all powers reasonably incidental thereto, including the
general administration of this Agreement. The Agent accepts such appointment and
authorization and agrees to act as the agent and mandatary for each of the
Lenders. The Agent shall have only those duties and responsibilities of a solely
mechanical and administrative nature which are expressly specified in this
Agreement, and it may perform such duties by or through its agents or employees.
As to any matters not expressly provided for by this Agreement, the Agent is not
required to exercise any discretion or to take any action, but is required to
act or to refrain from acting (and is fully protected in so acting or refraining
from acting) upon the written instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders, but the Agent is not required to
take any action which exposes the Agent to liability in that capacity, which is
contrary to this Agreement or to applicable law or which could result in the
Agent incurring any costs and expenses for which, in its reasonable opinion, it
is not adequately indemnified.
The Lenders hereby authorize the Agent (or any other person they should
wish to designate as holder of the security) to enter into the Hypothecs and the
427 Documents, to hold the liens, hypothecs and security from time to time
provided for in the, Hypothecs and the 427 Documents, as the case may be, to
exercise the rights and remedies provided for therein and to release liens on
any collateral to the extent the sale thereof is permitted by the terms of the
Hypothecs or the 427 Documents, as the case may be, in each case without any
further action or consent of the Lenders.
15.2 ARRANGEMENTS FOR BORROWINGS
The Agent shall give notice to each Lender promptly in writing upon
receipt by the Agent of any notice given pursuant to Article III, Article IV or
Article V.
The Agent shall advise each Lender of the amount, date and details of
each Borrowing and of each Lender's participation in each Borrowing. At or
before 12:00 noon (Eastern Time) for value on the Drawdown Date or the
Conversion Date, as the case may be, each Lender will make its participation
available to the Borrower at the Agent's Branch of Account.
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15.3 ARRANGEMENTS FOR REPAYMENT OF BORROWINGS
Upon receipt by the Agent of payments from the Borrower on account of
principal, interest, fees, or any other payment made to the Agent on behalf of
the Lenders, the Agent shall pay over to each Lender the amount to which it is
entitled under this Agreement in accordance with Section 11.7. Such payment
shall be made promptly following receipt and, in any event, the Agent shall use
its best efforts to pay to each Lender at the applicable Lender's Branch of
Account such amount on the same Business Day as such amount is received by the
Agent. Each Lender agrees to be bound by a decision of the Majority Lenders with
respect to any direction given to the Agent pursuant to Section 14.2 of this
Agreement. Each Lender shall, subject to applicable law, do all such acts and
things as may be necessary or reasonable to enable the Agent to act pursuant to
any such direction.
15.4 REPAYMENT BY LENDERS TO AGENT
(a) Without affecting the obligations of the Lenders or the Borrower
contained elsewhere in this Agreement, unless the Agent has been
notified in writing by the Borrower at least one (1) Business Day prior
to the date on which any payment to be made by the Borrower hereunder
is due that the Borrower do not intend to remit such payment, the Agent
may, in its discretion, assume that the Borrower has remitted such
payment when so due and the Agent may, in its discretion and in
reliance upon such assumption, make available to each Lender on such
payment date an amount equal to such Lender's Pro Rata Share of such
assumed payment. If the Borrower does not in fact remit such payment to
the Agent, the Agent shall promptly notify each Lender and each such
Lender shall forthwith on demand repay to the Agent the amount of such
assumed payment made available to such Lender, together with interest
thereon until the date of repayment thereof at a rate determined by the
Agent (such rate to be conclusive and binding on such Lender) in
accordance with the Agent's usual banking practice for such advances to
financial institutions of like standing to such Lender, but in any
event at a rate no greater than the usual interbank offered rate for
the sale of Canadian Dollar deposits.
(b) Without affecting the obligations of the Lenders or the Borrower
contained elsewhere in this Agreement, unless the Agent has been
notified in writing by a Lender at least one (1) Business Day prior to
a Drawdown Date or Conversion Date that such Lender does not intend to
make available its Pro Rata Share of the Borrowing to be made available
on such Drawdown Date or Conversion Date, the Agent may, in its
discretion, assume that each Lender has remitted funds in an amount
equal to its Pro Rata Share of such Borrowing to the Agent and the
Agent may, in its discretion and in reliance upon such assumption, make
available to the Borrower on such Drawdown Date or Conversion Date an
amount equal to such Lender's Pro Rata Share of such Borrowing. If a
Lender does not in fact remit such funds to the Agent, the Agent shall
promptly notify such Lender, and such Lender (or failing such Lender,
the Borrower) shall forthwith on demand repay to the Agent the amount
made available to the Agent on behalf of such Lender, together with
interest thereon until the date of repayment thereof at the rate
provided hereunder for that particular type of Borrowing.
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15.5 DISCLAIMER OF AGENT
The Agent makes no representation or warranty and assumes no
responsibility with respect to the due execution, legality, validity,
sufficiency, enforceability or collectability of this Agreement or any
instruments or documents referred to in this Agreement or relative to this
Agreement. The Agent assumes no responsibility for the financial condition of
the Borrower or for the performance of any of the obligations of the Borrower
under this Agreement or any other agreement, instrument or document. The Agent
assumes no responsibility with respect to the accuracy, authenticity, legality,
validity, sufficiency or enforceability of any documents, papers, materials or
other information furnished by the Borrower or any other person to the Agent for
the account of the Lenders. The Agent shall not be required, unless so
instructed by the Majority Lenders, to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in this Agreement or as to the use of the proceeds of
the Credit Facility or, unless the Agent has actual knowledge thereof or has
been notified thereof in writing by the Borrower or a Lender as to the existence
or possible existence of any Event of Default. Neither the Agent nor any of its
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them as Agent under or in
connection with this Agreement except for its or their own gross negligence or
wilful misconduct.
15.6 ACKNOWLEDGMENT OF LENDERS
Each Lender acknowledges that it has itself been, and will continue to
be, solely responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of the Borrower and of the Lead Borrower.
Accordingly, each Lender confirms to the Agent that it has not relied, and will
not in the future rely, on the Agent: (a) to check or inquire on its behalf into
the adequacy, accuracy or completeness of any information provided by the
Borrower under or in connection with this Agreement or the transactions
contemplated in this Agreement (whether or not that information has been or is
in the future distributed to that Lender by the Agent); or (b) to assess or keep
under review on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower.
15.7 SUCCESSOR AGENT
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrower, and the Agent may also be removed for
cause by the Majority Lenders. Upon such resignation or removal, the Majority
Lenders shall have the right to appoint a successor Agent from amongst the other
Lenders who shall be acceptable to the Borrower, acting reasonably. If no
successor Agent shall have been appointed and shall have accepted such
appointment within thirty (30) days after the retiring Agent's giving of notice
of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent who shall be acceptable to the Borrower, acting reasonably. Upon
the acceptance of any appointment as Agent under this Agreement by a successor
Agent, that successor Agent 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 discharged from its further duties and obligations as
Agent under this
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Agreement. If no successor Agent shall have been appointed by the Majority
Lenders or the retiring Agent within sixty (60) days after the retiring Agent's
giving of notice of resignation, the existing Agent shall not be permitted to
resign its duties under this Agreement. After any retiring Agent's resignation
or removal under this Agreement as Agent, the provisions of this Article XV
shall continue to inure to its benefit and be binding upon it as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
15.8 NOTICES BETWEEN LENDERS AND AGENT
Except as otherwise specifically provided for in this Agreement, the
Agent shall promptly telephone each Lender upon receipt of each notice and shall
deliver by messenger or telecopier all written communications furnished by the
Borrower to the Agent on behalf of the Lenders pursuant to this Agreement,
including without limitation copies of financial reports and certificates which
are to be furnished to the Agent pursuant to this Agreement. The Agent shall
notify each Lender and each Lender shall notify the Agent which shall then
notify the other Lenders of any Event of Default of which any of them becomes
aware.
15.9 DUTIES AND OBLIGATIONS OF AGENT
Neither the Agent nor any of its directors, officers, agents or
employees (and, for purposes hereof, the Agent shall be deemed to be contracting
as agent for and on behalf of such persons) shall be liable for any action taken
or omitted to be taken by them under or in connection with this Agreement except
for its own gross negligence or wilful misconduct. Without limiting the
generality of the foregoing, the Agent:
(a) may assume that there has been no assignment or transfer by any means
by any of the Lenders of their rights under this Agreement unless and
until the Agent receives written notice of the assignment thereof from
that Lender and the Agent receives the written agreement of the
assignee that such assignee is bound by this Agreement as it would have
been if it had been an original party to this Agreement, in each case
in form and substance satisfactory to the Agent;
(b) may consult with legal counsel (including counsel for the Borrower,
independent chartered 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;
(c) 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 by cable, telecopier or telex) believed by it to
be genuine and signed or sent by the proper party or parties or by
acting upon any representation or warranty of the Lead Borrower made or
deemed to be made under this Agreement;
(d) may assume that no Event of Default has occurred and is continuing
unless it has actual knowledge to the contrary;
(e) may rely, as to any matters of fact which might reasonably be expected
to be within the knowledge of any person, upon a certificate signed by
or on behalf of that person; and
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(f) may, without any liability to account, accept deposits from and lend
money to and generally engage in any kind of banking or other business
with the Borrower as if it were not the Agent.
Furthermore, the Agent (i) does not make any representation or warranty
to any Lender nor shall it be responsible to any Lender for the accuracy or
completeness of the data made available to any Lender in connection with the
negotiation of this Agreement, or for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (ii) shall not have any duty to ascertain or to enquire as to 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 property (including the
books and records) of the Borrower, other than in conformity with the degree of
care the Agent would ordinarily exercise in the course of administering the
Credit Facility if it were the sole Lender; and (iii) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any instrument or
document furnished pursuant to this Agreement.
15.10 INDEMNIFICATION OF AGENT
Each Lender agrees to indemnify the Agent (acting in its capacity as
Agent under this Agreement and to the extent not reimbursed by the Borrower),
rateably according to its Pro Rata Share from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent (in such capacity) in any
way relating to or arising out of this Agreement or the transactions herein
contemplated, but no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expense or disbursements resulting from the Agent's gross negligence or wilful
misconduct. Without limiting the generality of the foregoing, each Lender agrees
to reimburse the Agent promptly upon demand for its Pro Rata Share of any
out-of-pocket expense (including counsel fees) incurred by the Agent with the
approval of the Majority Lenders in connection with the preservation of any
rights of the Agent or the Lenders under, or the enforcement of, or legal advice
in respect of rights or responsibilities under, this Agreement, to the extent
that the Agent is not reimbursed for such expenses by the Borrower.
15.11 SHARING AMONG LENDERS
The Lenders agree among themselves that, except as otherwise provided
for in this Agreement or unless the aggregate amount of Borrowings outstanding
is not in proportion to each Lender's Pro Rata Share, all sums received by a
Lender relating to this Agreement whether received by voluntary payment, by the
exercise of the right of set-off or compensation or by counterclaim, cross
action or as proceeds of realization of any security or otherwise, shall be
shared by each Lender in proportion to its Pro Rata Share and each Lender
undertakes to do all such things as may be reasonably required to give full
effect to this Section 15.11 including without limitation, the purchase from the
other Lenders of a portion thereof by the Lender that has received an amount in
excess of its Pro Rata Share as shall be necessary to cause that purchasing
Lender to share the excess amount rateably in its Pro Rata Share with the other
Lenders. If any sum which is so shared is later recovered from the Lender that
originally
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received it, each of the other Lenders shall restore its Pro Rata Share of that
sum to that Lender, without interest.
15.12 ACTIONS AND ENFORCEMENT OF REMEDIES
The Lenders agree among themselves that the Agent shall exercise on
their behalf the powers conferred upon the Agent. Each of the Lenders
acknowledges that, to the extent permitted by applicable law, the remedies
afforded to the Agent and the Lenders under this Agreement are for the benefit
of the Lenders collectively and acting together and not severally, and each
Lender further acknowledges that its rights and remedies under this Agreement
are to be exercised not severally, but collectively by the Agent upon the
decision of the Majority Lenders regardless of whether acceleration was made
pursuant to Section 14.2.
Accordingly, notwithstanding any of the provisions contained in this
Agreement, each Lender covenants and agrees that it shall not be entitled to
take any recovery action with respect to the Credit Facility including, without
limitation, any accelerations under Section 14.2 that any such action shall be
taken only by the Agent with the prior written consent of the Majority Lenders
but, notwithstanding the foregoing, in the absence of instruction from the
Majority Lenders and where, in the sole opinion of the Agent, the circumstances
warrant such action, the Agent may, without notice to or consent of the Lenders
take such action on behalf of the Lenders as it deems appropriate or desirable
in the interest of the Lenders. Each of the Lenders covenants and agrees that,
it has not previously and shall not seek, take, accept or receive any security,
for any of the obligations and liabilities of the Borrower under this Agreement
or under any other document, instrument, writing or agreement ancillary to this
Agreement and it shall not enter into any agreement with any of the parties to
this Agreement or thereto relating in any manner whatsoever to the Credit
Facility, unless all of the Lenders shall at the same time obtain the benefit of
any such security or agreement, as the case may be.
15.13 PROVISIONS OPERATIVE BETWEEN LENDERS AND AGENT ONLY
The provisions of this Article XV relating to the rights and
obligations of the Lenders and the Agent shall be operative as between the
Lenders and the Agent only, and the Borrower shall not have any rights or
obligations under or be entitled to rely for any purposes upon such provisions
other than as specifically set forth therein.
15.14 RELATIONS WITH BORROWER
Each Lender may deal with the Borrower in all transactions and
generally do any banking business with or provide any financial services to it
without having any liability to account to the other Lenders therefor. With
respect to the Agent's own Commitment and Pro Rata Share, the Agent shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Agent.
All communications with the Borrower by a Lender in connection with
this Agreement shall be directed through the Agent.
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15.15 AMENDMENT OF ARTICLE XV
The provisions of this Article XV insofar as they relate only to the
rights and obligations of the Agent and the Lenders among themselves and do not
affect the rights, obligations or exercise of discretion of or by the Borrower,
may be amended or added to, from time to time, by execution by the Agent and
each Lender of any instrument in writing and that instrument in writing shall
validly and effectively amend the provisions of this Article XV without
requiring the execution of that instrument in writing by the Borrower, without
prior notice to the Borrower or to any other person, any such prior notice being
expressly waived by the Borrower. In the event of such amendment or addition,
the Agent agrees to give notice thereof to the Lead Borrower within a reasonable
delay thereafter, for purposes of information only.
15.16 AGENCY
The Agent shall hold all monies received by it under this Agreement and
which are due to the Lenders, as agent and mandatary for and on behalf of the
Lenders, in accordance with their respective entitlements.
15.17 SHARING OF INFORMATION
Subject to the provisions of Section 15.19 below, the Borrower
authorizes the Agent and each Lender to share with each other any information
possessed by any of them relating to the Borrower, including, without
limitation, information relating to the financial condition or operations of the
Borrower, the debts and liabilities of the Borrower under this Agreement, or to
payments received by the Agent or a Lender from the Borrower or the information
contained in or related to any certificate provided under this Agreement or
otherwise or obtained as a result of inspections of the Borrower's books,
accounts and records.
15.18 NO PARTNERSHIP
Nothing contained in this Agreement and no action taken pursuant to it
shall be deemed to constitute the Lenders a partnership, association, joint
venture or other such entity.
15.19 CONFIDENTIALITY
Each Lender agrees to exercise commercially reasonable efforts to keep
any information delivered or made available by the Borrower hereunder, or any
other information which is clearly indicated to be confidential information,
including material, non-public information of the Borrower, confidential from
anyone other than persons employed or retained by such Lender who are or are
expected to become engaged in evaluating, approving, structuring or
administering the loans made hereunder; provided that nothing herein shall
prevent any Lender from disclosing such information (i) to any other Lender or
to any Affiliate of any Lender, (ii) upon the order of any court or
administrative agency, (iii) upon the request or demand of any regulatory agency
or authority having jurisdiction over such Lender, (iv) which has been publicly
disclosed, (v) to the extent reasonably required in connection with any
litigation to which the Agent, any Lender or their respective Affiliates may be
a party (provided that neither the Agent nor any Lender shall disclose
forward--looking projections regarding the Borrower's future performance unless
required to do so by law), (vi) to the extent reasonably
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required in connection with the exercise of any remedy hereunder (provided that
neither the Agent nor any Lender shall disclose forward-looking projections
regarding the Borrower's future performance unless required to do so by law),
(vii) to such Lender's legal counsel and independent auditors and (viii) to any
actual or proposed participant, assignee or other transferee of all or part of
its rights hereunder which has agreed in writing to be bound by the provisions
of Section 15.19; provided that should disclosure of any such confidential
information be required by virtue of clause (ii) of the immediately preceding
sentence, to the extent permitted by law, any relevant Lender shall promptly
notify the Borrower of same so as to allow the Borrower to seek a protective
order or to take any other appropriate action; provided, further, that no Lender
shall be required to delay compliance with any directive to disclose any such
information so as to allow the Borrower to effect any such action.
ARTICLE XVI
JURISDICTION AND GOVERNING LAW
16.1 GOVERNING LAW
The parties agree that this Agreement is conclusively deemed to be made
under, and for all purposes to be governed by and construed in accordance with,
the laws of the Province of Quebec and the laws of Canada applicable therein.
16.2 SUBMISSION TO JURISDICTION
The Borrower agrees that any legal action or proceeding with respect to
this Agreement or to enforce any judgment obtained against any of them or their
respective property (a certified or exemplified copy of which shall be
conclusive evidence of the fact and of the amount of any indebtedness of the
Borrower to the Lenders described therein except for any such judgment obtained
by default to appear) may be brought by the Agent on behalf of the Lenders in
the courts of the Province of Quebec or in any other courts which may have
jurisdiction in the circumstances. By the execution and delivery of this
Agreement, the Borrower irrevocably consents and submits to the non-exclusive
jurisdiction of such courts, acknowledges their competence, and irrevocably
agrees to be bound by a final judgment of any such court.
16.3 JUDGMENT CURRENCY
If for the purposes of obtaining judgment in any court in any
jurisdiction with respect to this Agreement, it becomes necessary to convert
into the currency of such jurisdiction (herein called the "JUDGMENT CURRENCY")
any amount due hereunder in any currency other than the Judgment Currency, then
conversion shall be made at the rate of exchange prevailing on the Business Day
before the day when proceedings (such as a writ or other similar proceeding)
instituting a legal demand for this judgment are issued. For this purpose "rate
of exchange" means the rate at which the Agent will, on the relevant date, sell
such currency in Montreal, Canada against the Judgment Currency. In the event
that there is a change in the rate of exchange prevailing between the Business
Day before the day when such proceedings instituting a legal demand is issued
and the date of payment of the amount due, the Borrower
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will, on the date of payment, pay such additional amounts (if any), or be
entitled to receive reimbursement of such amount (if any), as may be necessary
to ensure that the amount paid on such date is the amount in the Judgment
Currency which when converted at the rate of exchange prevailing on the date of
payment is the amount then due under this Agreement in such other currency. Any
additional amount due from the Borrower under this Section 16.3 will be due as a
separate debt and shall not be affected by judgment being obtained for any other
sums due under or in respect of this Agreement.
ARTICLE XVII
SUCCESSORS AND ASSIGNS
17.1 SUCCESSORS AND ASSIGNS
This Agreement when executed and delivered by the parties hereto, shall
be binding upon the parties hereto and their respective successors and permitted
assigns, provided, however, that the Borrower shall not be permitted to assign
any of its rights or obligations hereunder without the prior unanimous consent
of the Lenders (which consent may be withheld by the Lenders in their sole and
absolute discretion) confirmed in writing by the Agent to the Borrower.
17.2 SYNDICATION AND SALE OF PARTICIPATIONS
(a) The rights, benefits and obligations of a Lender under or in respect of
this Agreement (the "RIGHTS") may, in whole or in part, be sold,
assigned or transferred from time to time by such Lender or its
Assignees hereunder (collectively an "ASSIGNOR") to another person (the
"ASSIGNEE") either by way of syndication (a "SYNDICATION") or by way of
participation (a "PARTICIPATION"), without prior notice to, or the
consent of, any Borrower, the whole subject to the following provisions
of this Section 17.2. However, in the event of a Syndication, the Agent
agrees to give notice thereof to the Lead Borrower within a reasonable
time thereafter, for purposes of information only.
(b) In the case of a Syndication, the Assignee shall, to the extent of the
Rights sold or assigned to it by the Assignor and upon delivery to the
Lead Borrower of a written acknowledgment of the assumption by the
Assignee of the Rights of the Assignor, be entitled to such Rights to
the same extent as if the Assignee were an original party to this
Agreement, and the Assignor shall be released and discharged pro tanto.
The Borrower agrees to execute and deliver free of charge, at the
request and expense of the Assignor, such deeds, documents, instruments
and assurances as an Assignor may reasonably request for the purpose of
having the Assignee under a Syndication become a party to this
Agreement and making such changes to this Agreement as may be
appropriate or desirable in the circumstances, provided that such
deeds, documents, instruments and assurances do not adversely modify
any of the Borrower's rights or increase any of its obligations under
this Agreement.
(c) In the case of a Participation, the Assignee shall, to the extent of
the Rights sold or assigned to it by the Assignor, be entitled to such
Rights in the manner and to the extent provided for in the
Participation agreement entered into between the Assignor and the
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Assignee, but notwithstanding any Participation, the Borrower shall be
entitled to continue to deal with the Assignor as if it were the sole
owner of the Rights. The Borrower acknowledges and agrees that the
Assignor shall, in the context of any Participation, continue to be
entitled, in its own name and/or as agent for its Assignees, to enforce
any and all privileges, rights, benefits and remedies attaching from
time to time to the Rights which were the object of any such
Participation.
(d) In connection with any proposed Syndication or Participation as
aforesaid, any Assignor may, on a confidential basis, disclose to a
potential Assignee such information about the Borrower and any
Affiliate as the Assignor may see fit (other than proprietary
information).
(e) Any Syndication or Participation made in accordance with the foregoing
provisions of this Section 17.2 shall, to the extent necessary, be
deemed to have been accepted by the Borrower for all legal purposes,
but no Syndication or Participation made hereunder shall have the
effect of increasing the costs and expenses to the Borrower related to
the use of the Credit Facility, except as otherwise provided in this
Agreement.
ARTICLE XVIII
NOTICE
18.1 ADDRESS FOR NOTICE
Any demand, request or notice to be given under this Agreement shall be
given by delivering the same, or by mailing the same by regular mail postage
prepaid, or by telecopier or by telex, in the case of the Lead Borrower or the
Borrower, as the case may be, to the Lead Borrower at its address indicated
opposite its name on the signature page hereof or at such other address as the
Borrower or the Lead Borrower, as the case may be, may notify the Agent in
writing, and in the case of the Agent or the Lenders, at the address of their
respective Branch of Account.
18.2 NOTICE
Any such demand, request or notice sent as aforesaid shall be deemed to
have been received by the party to whom it is addressed upon delivery, if
delivered, and on the actual receipt thereof, if sent by mail, and on the
Business Day next following the day of transmission when transmitted by telex or
telecopier; provided, however, that in the event normal mail service or telex or
telecopier service shall be interrupted by strike, force majeure or other cause,
then the party sending the demand, request or notice shall utilize any one of
the said services which has not been so interrupted or, failing the availability
of such service, any other mode of communication which shall ensure prompt
receipt of such demand, request or notice by the other party or parties.
- 44 -
ARTICLE XIX
MISCELLANEOUS
19.1 SEVERABILITY
Any provision of this Agreement which is or becomes prohibited or
unenforceable in any jurisdiction does not invalidate, affect or impair the
remaining provisions hereof in such jurisdiction and any such prohibition or
unenforceability in any jurisdiction does not invalidate or render unenforceable
such provision in any other jurisdiction.
19.2 SURVIVAL OF REPRESENTATIONS
All covenants, undertakings, agreements, representations and warranties
made pursuant to this Agreement shall survive the execution and delivery of this
Agreement, and, unless otherwise specifically provided herein, shall continue in
full force and effect until the full payment and satisfaction of all obligations
of the Borrower incurred pursuant to this Agreement and termination of this
Agreement.
19.3 WAIVERS, AMENDMENTS, ETC.
No amendment, change or waiver of any provision of this Agreement or
consent to any departure by the Borrower from any provision of this Agreement
(hereinafter collectively referred to as a "MODIFICATION") will be effective
unless it is in writing and signed by the Agent on behalf of the Lenders, and
then such Modification will be effective only in the specific instance, for the
specific purpose and for the specific length of time for which it is given.
Where any such Modification relates to:
(a) a change in the nature of the Borrowings authorized hereunder;
(b) a change in the provisions of Articles III, VII or VIII hereof;
(c) a Modification of the Total Commitment;
(d) a change in the Maturity Date;
(e) a Modification in the definition of Majority Lenders; or
(f) a Modification of this Section 19.3;
then such Modification shall not be consented to by the Agent unless
the Agent has been authorized to do so by the agreement of all the
Lenders. In circumstances other than those contemplated in the
foregoing provisions of this Section 19.3, and unless otherwise
expressly contemplated by this Agreement, a Modification may be
consented to by the Agent upon the agreement of the Majority Lenders
and then such Modification shall be binding upon all the Lenders with
the same force and effect as if such Modification had been agreed to by
all of them. Except as provided in Section 15.15, nothing herein
contained shall authorize the Agent or the Lenders to
- 45 -
make a Modification which would affect the Borrower's rights and
privileges hereunder without the Borrower's own concurrence, in each
case evidenced in writing.
19.4 FURTHER ASSURANCES
The Borrower and the Lenders shall do all such further acts and execute
and deliver all such further documents as shall be reasonably required in order
to fully perform and carry out the terms of this Agreement.
19.5 NO NOVATION
The parties hereto agree that this Amended and Restated Credit
Agreement, its execution and the changes to the terms and conditions of the
Original Credit Agreement that it contains shall not constitute novation, and
all the sureties, guarantees and other collateral of whatever nature securing
the payment of the indebtedness of the Borrower under the Original Credit
Agreement including, without limiting the generality of these presents, the
Security Documents, shall continue to apply to this Amended and Restated Credit
Agreement.
19.6 NATURE OF LIABILITY OF BORROWERS
The obligations and liabilities of the Borrower to any Lender and to
the Agent hereunder are solidary between the Lead Borrower and each and every
Designated Subsidiary, it being understood that the Lead Borrower together with
each and every Designated Subsidiary which at any particular time constitutes
the Borrower shall be considered as one Borrower and their obligations and
liabilities to the Lenders and to the Agent hereunder shall be indivisible, each
such entity constituting the Borrower being considered as a principal obligor
and not a surety, the whole as contemplated in Article 1523 et seq. of the Civil
Code of Quebec. However and notwithstanding Article 1536 of the Civil Code of
Quebec, any entity constituting the Borrower shall not pursue or exercise a
right of subrogation in competition with the Lenders or the Agent until the
latter have been paid any and all amounts which may from time to time be owing
to them by any entity constituting the Borrower hereunder.
19.7 LEAD BORROWER AS AGENT OF THE BORROWER
Each of the entities constituting the Borrower from time to time hereby
irrevocably appoints the Lead Borrower as its lawful attorney and mandatary to
act on its behalf for the purpose of (i) completing, executing and delivering
any document or agreement changing or varying the provisions hereof in any
respect, (ii) negotiating, accepting or amending any provisions of this
Agreement, (iii) consenting to the adhesion of any additional Designated
Subsidiary or the removal of any Designated Subsidiary (in accordance with
Section 3.4), and (iv) executing the notices provided in Section 4.2, Section
4.3, Section 4.4, Section 4.5 and Section 5.1 hereto, and each of the entities
constituting the Borrower from time to time hereby undertaking to confirm and
ratify all such acts done and documents executed and delivered by the Lead
Borrower on its behalf, all of which shall have the same force and effect and
shall be binding on each of the entities constituting the Borrower as if done,
executed and delivered by each of the entities constituting the Borrower without
any additional formality, and the Lenders and the Agent shall be fully protected
in relying on the within power of attorney.
- 46 -
19.8 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original but all such separate counterparts shall
together constitute but one and the same instrument. In proving this Agreement
in any judicial proceeding, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom such enforcement
is sought. Any signature delivered by a party by facsimile transmission shall be
deemed an original signature hereto. Time is of the essence of this Agreement.
ARTICLE XX
LANGUAGE
20.1 LANGUAGE
The parties have specifically requested that this Agreement as well as
all other documents relating to this Agreement, including notices, be drafted in
English only, without prejudice however to such documents which may from time to
time be drawn up in French only or in both French and English.
Les parties aux presentes ont expressement requis que la presente
convention de meme que tous les documents, y compris tout avis, s'y rattachant,
soient rediges en anglais seulement, mais sans prejudice cependant auxdits
documents qui peuvent a l'occasion etre rediges en francais seulement ou a la
fois en francais et en anglais.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly
executed as of the date and year first above written.
ADDRESS FOR NOTICES: XXXXXX & XXXXX, LIMITED
000 Xxxxxx Xxx
Xxxxxxxxx, Xxxxxx
X0X 0X0 By: _____________________________
Attn: Vice-President, Finance
Tel.: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxxx Xxx X&X COMMANDER LIMITED PARTNERSHIP,
Iberville, Quebec represented by T&B Commander Electrical
J2X 2M9 Materials Inc.
Attn: Vice-President, Finance
Tel.: (000) 000-0000 By: _____________________________
Fax: (000) 000-0000
- 47 -
PRO RATA SHARE
CIBC C$30,000,000 CANADIAN IMPERIAL BANK OF
1155 Xxxx-Xxxxxxxx Blvd. Xxxx XXXXXXXX
Xxxxx 0000
Xxxxxxxx, Xxxxxx By: _______________________
H3B 3Z4
Attn: The General Manager
Tel: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE 2.1(n)
CURRENT CORPORATE CHART
[CURRENT CORPORATE FLOW CHART]
* Only Xxxxxx & Xxxxx, Limited and T&B Commander Limited Partnership own,
in the aggregate, 90% in value or more of all the inventory and
accounts receivable of the group in Canada, as provided in Schedule
2.1(n) of the Credit Agreement, as amended.
SCHEDULE 2.1(o)
PLACES OF BUSINESS
RENTED/
NOM ADRESSE VILLE CO. POST. OWNED
-------------------------------------------------------------------------------------------------------
XXXXXX & XXXXX, LIMITED 0000 XXXXX XXXXXX XXXXXXX XXXXXXX XX X0X 0X0 Owned
-------------------------------------------------------------------------------------------------------
XXXXXX & XXXXX, LIMITED 000 XXXXXX XXXXXX XXXXXXXXX XX X0X 0X0 Owned
-------------------------------------------------------------------------------------------------------
XXXXXX & XXXXX, LIMITED 0000 XXXX. XXXXXXXXXX, X000 XXXXXXXX XX X0X 0X0 Rented
-------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 000 XXXXX XXXXXX XXXXXX XX X0X 0X0 Rented
-------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 0000 XXXX. XXXXX XXXXXX XX X0X 0X0 Owned
-------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 000 XXXXXXXX XXXXXX XXXXXX XX X0X 0X0 Owned
-------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 000, XXX XXXXXXX XX-XXXX-XXX-XXXXXXXXX XX X0X 0X0 Owned
-------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 000 XXXXX-XXXX XX-XXXX XX X0X 0X0 Owned
-------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 0000 XXXX. XXXXX XXXXXX XX X0X 0X0 Owned
-------------------------------------------------------------------------------------------------------
NOM ADRESSE OWNER/ LANDLORD/ TENANT COMMENTS
-------------------------------------------------------------------------------------------------------------
XXXXXX & XXXXX, LIMITED 0000 XXXXX XXXXXX XXXXXXX Xxxxxx & Xxxxx, Limited Inventory
-------------------------------------------------------------------------------------------------------------
XXXXXX & XXXXX, LIMITED 000 XXXXXX XXXXXX X&X Commander Electrical Head Office /
Materials Inc. leases
to T&B Commander L.P. Inventory
-------------------------------------------------------------------------------------------------------------
XXXXXX & XXXXX, LIMITED 0000 XXXX. XXXXXXXXXX, X000 Xxxxxxxx: 0000000 Xxxxxx Inc. ; No inventory /
Sub-lessor: Xxx Xxxxxxxx, a sales office
division of Sonepar Distribution
Inc.; Sub-tenant: Xxxxxx & Xxxxx,
Limited
-------------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 000 XXXXX XXXXXX Xxxxxxxx: Stamco Incorporated; Inventory
Tenant: T&B Commander L.P.
-------------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 1811 BOUL. XXXXX Xxxxxx & Xxxxx, Limited leases to Inventory
T&B Commander L.P.
-------------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 180 XXXXXXXX T&B Commander Electrical Inventory
Materials Inc. leases to T&B
Commander L.P.
-------------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 000, XXX XXXXXXX X&X Commander Electrical Inventory
Materials Inc. leases to T&B
Commander L.P.
-------------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 760 NOTRE-DAME T&B Commander Electrical Materials Inventory
Inc. leases T&B Commander L.P.
-------------------------------------------------------------------------------------------------------------
T&B COMMANDER L.P. 1800 BOUL. XXXXX Xxxxxx & Xxxxx, Limited leases to Inventory
T&B Commander L.P.
-------------------------------------------------------------------------------------------------------------
SCHEDULE 3.4(a)
LIST OF DESIGNATED SUBSIDIARIES
T&B Commander Limited Partnership
SCHEDULE 3.4(b)
NOTICE IN RESPECT OF A DESIGNATED SUBSIDIARY
Date: _____________________
CANADIAN IMPERIAL BANK OF COMMERCE
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The General Manager
Dear Sirs:
We refer to the Amended and Restated Credit Agreement dated as of
December 27, 2001, between XXXXXX & XXXXX, LIMITED and its Designated
Subsidiaries from time to time, as solidary Borrower, the financial institutions
party thereto as Lenders, and CANADIAN IMPERIAL BANK OF COMMERCE as Agent (the
"CREDIT AGREEMENT").
In accordance with Section 3.4 of the Credit Agreement, we hereby give
you notice of our intention to:
(select (a) or (b) but not both)
(a) add [name of Subsidiary] as a newly Designated Subsidiary effective on
______________ and for such purpose we enclose herewith a duly signed and
completed letter of adhesion by such Subsidiary and a certified true copy of a
Resolution of its Board of Directors, the whole as contemplated in paragraph
3.4(c) of Section 3.4 of the Credit Agreement. Unless we are advised in writing
to the contrary by the Agent on or before the above-mentioned effective date,
such Designated Subsidiary shall become a solidary borrower under the Credit
Agreement.
OR
(b) remove [name of Designated Subsidiary] as a Designated Subsidiary
effective on ___________________ and, subject to the provisions of paragraph
3.4(a) of Section 3.4 of the Credit Agreement, such Designated Subsidiary shall
no longer be a solidary borrower under the Credit Agreement.
Yours very truly,
XXXXXX & XXXXX, LIMITED
per: ________________________
Title:
SCHEDULE 3.4(c)
FORM OF LETTER OF ADHESION
(Additional Designated Subsidiary)
TO: CANADIAN IMPERIAL BANK OF COMMERCE
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The General Manager
Dear Sirs:
We refer to the Amended and Restated Credit Agreement dated as of
December 27, 2001, between XXXXXX & XXXXX, LIMITED and its Designated
Subsidiaries from time to time, as solidary Borrower, the financial institutions
party thereto as Lenders, and CANADIAN IMPERIAL BANK OF COMMERCE as Agent (the
"CREDIT AGREEMENT").
The undersigned wishes to become a Designated Subsidiary and one of the
entities acting as solidary borrower under the Credit Agreement and pursuant to
Section 3.4 of the Credit Agreement, the undersigned hereby directs the Agent to
add to Schedule 3.4(a) of the Credit Agreement the name of the undersigned as a
Designated Subsidiary, and the undersigned hereby agrees to observe and be bound
by all the terms and conditions of the Credit Agreement to the same extent and
with the same force and effect as if the undersigned had been an original
signatory thereto.
____________________________________
(Name of new Designated Subsidiary)
per: _______________________________
Authorized Representative
CONSENT OF EXISTING BORROWER
The undersigned Lead Borrower, acting for itself and as agent and
mandatary of all other entities constituting the Borrower pursuant to the powers
and authority granted to it pursuant to Section 19.7 of the aforesaid Credit
Agreement, hereby consents and agrees to the adherence of [name of new
Designated Subsidiary] as an additional solidary borrower to the said Credit
Agreement with effect as of the date which shall have been agreed upon between
the undersigned and the Agent as provided in Section 3.4 of the Credit
Agreement.
XXXXXX & XXXXX, LIMITED
per: ______________________________
Title
SCHEDULE 4.2/4.3
NOTICE OF BORROWING BY WAY OF FLOATING RATE LOAN
Date: _____________________
CANADIAN IMPERIAL BANK OF COMMERCE
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The General Manager
Dear Sirs:
We refer to the Amended and Restated Credit Agreement dated as of
December 27, 2001, between XXXXXX & XXXXX, LIMITED and its Designated
Subsidiaries from time to time, as solidary Borrower, the financial institutions
party thereto as Lenders, and CANADIAN IMPERIAL BANK OF COMMERCE as Agent (the
"CREDIT AGREEMENT").
We hereby request a Borrowing by way of:
1. Prime Rate Loan pursuant to Section 4.2 of the Credit Agreement as
follows:
a) Amount of Borrowing: $_______________
b) Drawdown Date: $_______________
2. Base Rate Loan pursuant to Section 4.3 of the Credit Agreement as
follows:
a) Amount of Borrowing: US $________________
b) Drawdown Date: ________________
3. Name of Borrower:
Yours very truly,
XXXXXX & XXXXX, LIMITED
per: __________________________
Title:
SCHEDULE 4.5
NOTICE OF BORROWING BY WAY OF BANKERS' ACCEPTANCES
Date: ________________________
CANADIAN IMPERIAL BANK OF COMMERCE
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The General Manager
Dear Sirs:
We refer to the Amended and Restated Credit Agreement dated as of December 27,
2001, between XXXXXX & XXXXX, LIMITED and its Designated Subsidiaries from time
to time, as solidary Borrower, the financial institutions party thereto as
Lenders, and CANADIAN IMPERIAL BANK OF COMMERCE as Agent (the "CREDIT
AGREEMENT").
We hereby give you notice of our intention to issue Bankers' Acceptances
pursuant to Section 4.5 of the Credit Agreement as follows:
1. Aggregate face amount: C$__________________________
2. Term: _________________________days
3. Drawdown Date: _____________________________
4. Maturity: _____________________________
5. Name and address of broker(s): _____________________________
6. Discount rate: _____________________________
7. Proceeds of issue: C$__________________________
8. Name of Borrower:
Yours very truly,
XXXXXX & XXXXX, LIMITED
per: ______________________
Title:
SCHEDULE 5.1
NOTICE OF CONVERSION OF BORROWINGS
Date: ______________________
CANADIAN IMPERIAL BANK OF COMMERCE
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The General Manager
Dear Sirs:
We refer to the Amended and Restated Credit Agreement dated as of
December 27, 2001, between XXXXXX & XXXXX, LIMITED and its Designated
Subsidiaries from time to time, as solidary Borrower, the financial institutions
party thereto as Lenders, and CANADIAN IMPERIAL BANK OF COMMERCE as Agent (the
"CREDIT AGREEMENT").
Pursuant to Section 5.1 of the Credit Agreement, we hereby request that
the following Borrowing(s) be converted in the manner set forth below:
Description of existing Borrowing(s): _______________
(a) Name of Borrower:
(b) Amount of Prime Rate Loan: $______________
(c) Amount of Base Rate Loan: US$______________
(d) LIBOR Loans expiring on US$______________
*____________
(e) Bankers' Acceptances maturing on $______________
*______________
[*this date must be the same as the Conversion Date indicated in item 1]
Will be converted into the following $______________
Borrowings:
(a) Amount of Prime Rate Loan: $______________
(b) Amount of Base Rate Loan: US$______________
- 2 -
(c) LIBOR Loans expiring on US$______________
*______________
(d) Bankers' Acceptances $______________
maturing on *_____________
Yours very truly,
XXXXXX & XXXXX, LIMITED
Per: ____________________
Title:
SCHEDULE 5.3
NOTICE OF COMMITMENT CANCELLATION
Date: ________________
CANADIAN IMPERIAL BANK OF COMMERCE
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: The General Manager
Dear Sirs:
We refer to the Amended and Restated Credit Agreement dated as of
December 27, 2001, between XXXXXX & XXXXX, LIMITED and its Designated
Subsidiaries from time to time, as solidary Borrower, the financial institutions
party thereto as Lenders, and CANADIAN IMPERIAL BANK OF COMMERCE as Agent (the
"CREDIT AGREEMENT").
We hereby give you irrevocable notice of our intention to cancel the
Available Commitment effective on the date indicated below and for the following
amounts:
1. Effective date of cancellation: _______________
2. Amount of Commitment cancellation: $______________
3. Balance of Available Commitment after
giving effect to the cancellation: $______________
If on the effective date of this Commitment Cancellation the aggregate
amount of Borrowings outstanding is greater than the balance of the Available
Commitment after giving effect to such reduction, Borrowings will be reduced
simultaneously in the manner provided in Section 5.3 of the Credit Agreement.
Yours very truly,
XXXXXX & XXXXX, LIMITED
Per: ________________________
Title:
SCHEDULE 12.1(c)
LEGAL OPINION OF COUNSEL
Date: ________________________
CANADIAN IMPERIAL BANK OF COMMERCE
1155 Xxxx-Xxxxxxxx Blvd. West
Suite 1400
Xxxxxxxx, Xxxxxx
X0X 0X0
and
to any other financial institutions
which may become a Lender
pursuant to the Credit Agreement
referred to below.
and
Stikeman, Xxxxxxx
0000 Xxxx-Xxxxxxxx Xxxx. Xxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Dear Sirs:
We refer to the Amended and Restated Credit Agreement dated as of -,
2001, between XXXXXX & XXXXX, LIMITED and its Designated Subsidiaries from time
to time, as solidary Borrower, the financial institutions party thereto as
Lenders, and CANADIAN IMPERIAL BANK OF COMMERCE as Agent (the "CREDIT
AGREEMENT"). All words and expressions defined in the Credit Agreement have the
same meanings herein unless the context otherwise requires.
We are counsel to - (the "CORPORATION") and have full knowledge of the
transactions contemplated by the Credit Agreement. In rendering our opinion as
counsel to the Corporation in connection with the Credit Facility, we have
examined the following documents:
(a) the incorporation documents and by-laws of the Corporation;
(b) a duly executed copy of the Credit Agreement;
(c) a resolution of the Board of Directors of the Corporation
approving and authorizing the execution of the Credit
Agreement on behalf of the Corporation;
(d) a certificate from an officer of the Corporation;
- 2 -
(e) all such other documents and public instruments as we
considered necessary in connection with this opinion.
In such examination we have assumed the genuineness of all signatures
and the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or facsimile copies.
On the basis of and relying upon the foregoing, we are of the opinion
that:
1. The Corporation (a) is a corporation duly incorporated and
validly existing under the laws of -, and (b) is in good
standing with respect to the filing of its corporate returns
under the laws of its jurisdiction of incorporation.
2. The Corporation has full corporate power, capacity and legal
right to carry on its enterprise as presently conducted, to
own its property, assets and holdings, and to execute and
deliver the Credit Agreement and perform its obligations
thereunder.
3. The execution and delivery by the Corporation of the Credit
Agreement, and the performance by the Corporation of its
obligations thereunder, have been duly authorized by all
requisite corporate action on the part of the Corporation.
4. The Credit Agreement has been duly executed and delivered on
behalf of the Corporation.
5. The execution and delivery by the Corporation of the Credit
Agreement, and the performance by the Corporation of its
obligations thereunder, are not prevented by and do not
violate or result in a default under any provision of its
Articles of Incorporation or by-laws.
6. The execution and delivery of the Credit Agreement by the
Corporation and the performance of its obligations thereunder
do not violate or constitute a default under any law, rule or
regulation of the jurisdiction in which the Corporation is now
constituted.
7. No approval, consent, license or authorization from, and no
other action, filing or registration with, any department,
agency, or other administrative authority of the jurisdiction
in which the Corporation is now constituted is required for
the execution and performance of the Credit Agreement in order
for the Corporation (i) to incur its obligations provided for
in the Credit Agreement, (ii) to execute and deliver the
Credit Agreement and all other documents and instruments to be
delivered by it thereunder, (iii) to perform and observe the
terms and provisions thereof and (iv) to make all payments as
required thereunder.
[We have also conducted the following searches with respect to filings
or registrations with respect to the name(s) indicated in Schedules and B
attached hereto:
- 3 -
(a) a search with respect to registrations in the Register of
Personal and Movable Real Rights ("RPMRR") with respect to
filings against movable (personal) property; and
(b) a search at the Montreal Office of Bank of Canada with respect
to registrations of notices of intention to give security
under Section 427 of the Bank Act affecting inventory ("BANK
ACT SEARCH").
The foregoing searches did not disclose, as of the respective dates
indicated in Schedules A and B, any filings or registrations for the Province of
Quebec with respect to the name(s) searched other than those indicated in
Schedules A and B, which are respectively the French and English versions of the
name of the Corporation and of all the predecessor names of the Corporation.
We draw to your attention, that there could exist various other rights
in favour of third parties which would not be disclosed by the searches such as,
for example, the following:
(c) statutory claims and the rights of third parties whose claims
have priority by law and which are not required to be
published (registered);
(d) the hypothecary rights of a creditor of a seller affecting
movable property previously hypothecated by the seller and
sold outside the ordinary course of business of the seller to
any of the entities whose name has been searched, which rights
are preserved by such creditor on the property sold by
observing certain formalities within prescribed delays;
(e) the following rights of a seller with respect to property sold
under certain circumstances to any of the entities whose name
has been searched:
(i) certain rights of resolution or revendication of an
unpaid seller;
(ii) the hypothecary rights of a seller with respect to a
hypothec granted by any of the entities whose name
has been searched upon the acquisition of property
and registered within prescribed delays; and
(iii) the rights of a seller acquired pursuant to an
instalment (conditional) sale where the seller
reserves ownership of the property, or a sale with
right of redemption;
(f) the rights of a lessor pursuant to a leasing contract with
respect to movable property leased to any of the entities
whose name has been searched;
(g) the hypothecary rights of a creditor of any of the entities
whose name has been searched affecting the following movable
property:
(i) movable property hypothecated (pledged) with delivery
(i.e. with physical dispossession); and
- 4 -
(ii) accounts receivable (claims) or movable property
represented by a xxxx of lading or other negotiable
instrument, provided that the hypothec affecting such
property is published (by registration or delivery)
within ten (10) days following the time the creditor
gives value.
Also, we draw to your attention that the RPMRR is a computer data base
which came into force on January 1, 1994 and is still suffering from sporadic
glitches and manual transcription errors of the registrar which can give rise to
uncertainties. There have been instances where a proper search of the RPMRR has
failed to disclose all entries.] [NOTE: MAY BE SUBSTITUTED BY LIEN SEARCH
LANGUAGE FOR RELEVANT JURISDICTION(S) IN THE CASE OF CORPORATIONS WHOSE HEAD
OFFICE IS NOT LOCATED IN THE PROVINCE OF QUEBEC].
Yours very truly,
Schedule 12.1(e)
BORROWING BASE CERTIFICATE
(monthly)
(letterhead of Xxxxxx & Xxxxx, Limited)
TO: CANADIAN IMPERIAL BANK OF COMMERCE, as agent (the "AGENT")
FROM: XXXXXX & XXXXX, LIMITED
For the month of: -
This certificate is delivered to you pursuant to the provisions of the
Amended and Restated Credit Agreement dated as of December 27, 2001 (the "CREDIT
AGREEMENT") among XXXXXX & XXXXX, LIMITED and its Designated Subsidiaries from
time to time, as solidarily borrowers, the lenders party thereto and the Agent,
as same may be amended, supplemented or restated at any time and from time to
time.
All capitalized terms and expressions used in this certificate have the
meanings ascribed to them in the Credit Agreement.
1. As - of Xxxxxx & Xxxxx, Limited, I hereby confirm that as of -, the
maximum amount available under the Credit Facility is $-, calculated,
as provided by section 3.1A of the Credit Agreement, as follows:
Authorized amount Cdn $30,000,000 (A)
75% of the Eligible Accounts Receivable
(see Appendix 1) ________________(B)
50% of the Eligible Inventory (see Appendix 2)
________________(C)
Prior Claims of Xxxxxx & Xxxxx, Limited and
of its direct and indirect subsidiaries (see
Appendix 3) ________________(D)
[(B) + (C)] - (D) ________________(E)
Amount available: the lesser of (A) and (E)
Dated:
By:
__________________________
Name:
Title:
APPENDIX 1 TO THE MONTHLY CERTIFICATE
ELIGIBLE ACCOUNTS RECEIVABLE
AMOUNT DUE
(EXPRESSED IN AGING (BY MULTIPLES
NAME OF CLIENT COUNTRY OF ORIGIN CDN $) OF 30 DAYS)
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TOTAL CDN $
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APPENDIX 2 TO THE MONTHLY CERTIFICATE
ELIGIBLE INVENTORY
BOOK VALUE (EXPRESSED
DESCRIPTION OF INVENTORY IN CDN $) LOCATION
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APPENDIX 3 TO THE MONTHLY CERTIFICATE
PRIOR CLAIMS
