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Exhibit 99f
IMPERIAL PARKING LIMITED
as Borrower
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504463 N.B. INC.
(NOW IMPARK SERVICES LIMITED)
as Guarantor
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THE FINANCIAL INSTITUTIONS SET FORTH
ON THE SIGNATURE PAGES HEREOF
- and -
BT BANK OF CANADA
as Agent
SECOND AMENDMENT
TO THE AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 17, 1997
DATED AS OF DECEMBER 30, 1998
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SECOND AMENDMENT
Second Amendment, dated as of December 30, 1998, to the
Amended and Restated Credit Agreement dated as of April 17, 1997 among IMPERIAL
PARKING LIMITED, a corporation amalgamated and existing under the laws of
Canada, as Borrower, 504463 N.B. INC., now IMPARK SERVICES LIMITED, a
corporation incorporated and existing under the laws of the Province of New
Brunswick, as Guarantor, BT BANK OF CANADA ("BT") and HONGKONG BANK OF CANADA
("HKBC"), as Lenders, and BT BANK OF CANADA, as Agent (the "Credit Agreement").
WHEREAS the Credit Agreement was amended pursuant to a First
Amendment dated as of December 30, 1997;
AND WHEREAS the Credit Agreement was also amended pursuant to
a waiver letter dated as of June 25, 1998 following the breach by the Borrower
of certain of the financial covenants set out in the Credit Agreement;
AND WHEREAS the Lenders and the Borrower have agreed to make
certain amendments to the Credit Agreement with the intention that the Borrower
will be able to meet its obligations under the Credit Agreement, as amended, on
an ongoing basis for the remainder of the term of the Credit Agreement;
NOW THEREFORE, in consideration of the agreements set forth
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Agent, the Lenders, the Borrower and the Guarantor
hereby agree that the Credit Agreement shall be amended as follows:
1. Certain definitions contained in section 1.1 of the Credit Agreement are
hereby amended to read in their entirety as follows:
" "ACCOMMODATION" means (i) an advance made by a Lender on the occasion
of any Borrowing; (ii) the creation and purchase of a Bankers'
Acceptance or the purchase of completed Drafts by a Lender or by any
other Person on the occasion of any Drawing; (iii) the issue of a
Letter of Credit by BT or HKBC; and (iv) the creation of an Overdraft
in the Overdraft Account established with HKBC (each of which is a
"TYPE" of Accommodation)."
" "ACCOMMODATIONS OUTSTANDING" means, subject in the case of the
Operating Facility to the definition of "Operating Commitment" set
out below, at any time under a Credit Facility, an amount equal to
(i) in relation to the Borrower and all Lenders, the sum of (s) the
aggregate principal amount of all outstanding Advances; (t) the
aggregate Face Amount of all outstanding Bankers' Acceptances,
completed Drafts and, without duplication, BA Equivalent Notes
which the Lenders have purchased or arranged to have purchased; (u)
the aggregate Face Amount of all Letters of Credit for which BT and
HKBC are contingently liable; and (v) the Overdraft outstanding in
the Overdraft Account; and (ii) in relation to the Borrower and any
Lender, the sum of (w) the aggregate principal amount of all
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outstanding Advances made by such Lender; (x) the aggregate Face
Amount of all outstanding Bankers' Acceptances, completed Drafts and,
without duplication, BA Equivalent Notes which such Lender has
purchased or arranged to have purchased; (y) the aggregate Face
Amount of all Letters of Credit for which BT or HKBC, as applicable,
is contingently liable; and (z) in the case of HKBC only, the amount
of the Overdraft in the Overdraft Account (except for the purposes of
the "Majority Lenders" definition in which case only half the amount
of the Overdraft in the Overdraft Account will be taken into
account)."
" "CONSOLIDATED EBITDA" means, for any period of months, the
Consolidated Net Income of the Borrower, the Guarantor and their
respective Consolidated Subsidiaries (or with respect to the
definition of Target EBITDA, the relevant target entity mutatis
mutandis) increased by the sum of (i) Consolidated Interest Charges,
(ii) Consolidated Income Tax Expense, (iii) Consolidated Depreciation
and Amortization Expense, (in each case, for such period and
calculated prior to extraordinary items), and in addition (but not in
the case of Target EBITDA), (iv) such out-of-pocket expenses incurred
by such entities on a one time basis and which can reasonably be
solely attributed to the carrying out of the Transaction, and, in the
case of any period of months encompassing the period from October 1,
1998 to September 30, 1999, (v) an amount equal to $4,020,000 in
respect of extraordinary one-time expenses respecting severance pay,
legal, consulting and other professional fees and banking fees
(provided that in the case of (v) such amount has been invested in
the Borrower by FUR, FUMI or any of their affiliates and the
Borrower's obligation to repay such amount is subordinated and
postponed to the Borrower's obligations to the Lenders on a basis
satisfactory to the Lenders)."
" "CONSOLIDATED INDEBTEDNESS" means the aggregate of all Debts For
Borrowed Money of the Borrower, the Guarantor and their respective
Consolidated Subsidiaries less (w) the face amount of the FUR Letter
of Credit to the extent not drawn down by the Agent, (x) Subordinated
Debt, (y) cash and Permitted Marketable Securities on the balance
sheet of the latest financial statements delivered to the Agent
pursuant to Section 8.1(a), provided that such cash is maintained in
an account at BT or HKBC and such Permitted Marketable Securities are
held by the Agent or HKBC as custodian and (z) such other cash and
Permitted Marketable Securities, which is not deposited with or held
by, as applicable, BT or HKBC, on the balance sheet of the latest
financial statements delivered to the Agent pursuant to Section
8.1(a) to the extent that the aggregate value of such cash and
Permitted Marketable Securities does not exceed an aggregate amount
of U.S. $250,000."
" "CONSOLIDATED INTEREST CHARGES" means, for any period of months for
the Borrower, the Guarantor and their respective Consolidated
Subsidiaries, the total of (i) all items properly classified as
interest expense (whether expended or capitalized) in accordance with
Generally Accepted Accounting Principles; and (ii)
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the imputed interest component for any element of Consolidated
Indebtedness (such as capital leases and deferred revenues) which
would not be classified as interest expense pursuant to Generally
Accepted Accounting Principles, calculated using an interest rate
equal to the then prevailing Canadian Prime Rate, in each case for
such period, provided that, notwithstanding the foregoing, no
interest will be included in this calculation with respect to (A) the
FUR Subordinated Debt or (B) the Accommodations supported by the FUR
Letter of Credit, the exclusion in (B) being achieved by taking the
amount otherwise calculated under this paragraph and deducting a
percentage of that amount equal to 100% times the result of dividing
(x) Cdn$11,500,000 by (y) the average aggregate, calculated on the
basis of the average of such amounts as at the end of each Financial
Quarter, of all Accommodations Outstanding under the Acquisition
Facility, the Term Facility and the Operating Facility (up to a
maximum of Cdn$6,500,000 in the case of the Operating Facility) for
such period."
" "CREDIT DOCUMENTS" means this Agreement, the Original Credit
Agreement, the Drafts, the Banker's Acceptances, the BA Equivalent
Notes, the Security Documents, the Hedging Agreements, the Fee
Letters, and Overdraft Security and all other connected agreements,
and any amendments to any of the foregoing and any waivers
effectively amending any of the foregoing."
" "DRAFT" includes a xxxxx xxxx of exchange, within the meaning of the
Bills of Exchange Act (Canada), and a depository xxxx, which is
subject to the Depository Bills and Note Act (Canada), drawn by the
Borrower on a Lender or any other Person, in form acceptable to such
Lender or such Person, which at such time has not been completed or
accepted by such Lender or such Person."
" "DRAWING FEE" means with respect to each Draft or Bankers' Acceptance
drawn by the Borrower hereunder and purchased by any Person on any
Drawing Date, an amount equal to the aggregate of (i) 1.50%, with
respect to any portion of the term to maturity of such Draft from and
including January 11, 1999, up to and including June 30, 1999, and
(ii) 1.75%, with respect to any portion of the term to maturity of
such Draft before January 11, 1999 or after June 30, 1999, multiplied
in each case by the aggregate Face Amount of such Draft, calculated
on the basis of the term to maturity of such Draft and a 365/366 day
year."
" "FEES" means the fees payable by the Borrower under Sections 2.7 and
5.7."
" "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally accepted
accounting principles set forth from time to time in the opinions and
pronouncements of the American Institute of Certified Public
Accountants and statements and pronouncements of the Governmental
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date
of determination, applied on a consistent basis (except for changes
made with
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the prior written consent of the Agent and approved by the Borrower's
independent auditors as being in accordance with such opinions,
statements and pronouncements)."
" "LETTER OF CREDIT" means a standby letter of credit issued or to be
issued for the account of the Borrower pursuant to Article 5."
" "OPERATING COMMITMENT" means, at any time, in respect of the
Operating Facility, notwithstanding the aggregate amount of each
Lender's Operating Commitment, Cdn$6,500,000."
" "OPERATING FACILITY" means the Credit Facility to be made available
to the Borrower hereunder for the purposes specified in Section 2.3
by BT by way of Letter of Credit and by HKBC by way of Overdraft and
Letter of Credit."
2. The definition of "Working Capital Line" contained in section 1.1
of the Credit Agreement is hereby deleted.
3. The following definitions are hereby added to section 1.1 of the
Credit Agreement:
" "CIBC LETTERS OF CREDIT" means letters of credit issued by Canadian
Imperial Bank of Commerce on behalf of the Borrower, which as of
December 30, 1998 have an aggregate face amount of Cdn$2,045,000."
" "FUR LETTER OF CREDIT" means a letter of credit in the face amount of
US$8,000,000 and in form satisfactory to the Agent issued at the
request of FUR, by a bank acceptable to the Agent, to the Agent as
beneficiary on behalf of the Lenders."
" "HKBC" means Hongkong Bank of Canada."
" "OVERDRAFT" means the aggregate of all principal amounts made
available under the Operating Facility by HKBC, subject to the
provisions of Article 5A, and debited to the Overdraft Account
(including cheques and withdrawals and accrued and unpaid interest)
in excess of the aggregate at any time and from time to time of all
principal amounts credited to the Overdraft Account."
" "OVERDRAFT ACCOUNT" means collectively all current accounts opened by
the Borrower with HKBC."
" "OVERDRAFT RATE" means HKBC's Prime Rate plus 0.50 of 1% per annum
from and including January 11, 1999 up to and including June 30,
1999, and thereafter 0.75 of 1% per annum, such Prime Rate being a
floating annual rate of interest established and announced by HKBC
from time to time as a reference rate used for
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purposes of determining the rates of interest it will charge on loans
denominated in Canadian dollars in Canada."
4. Section 2.1(2) of the Credit Agreement is hereby amended to read in
its entirety as follows:
" (2) Except as otherwise set out in this paragraph, each Lender
severally agrees, on the terms and conditions of this
Agreement, to make Accommodations rateably to the Borrower in
accordance with such Lender's Term Commitment and Lender's
Acquisition Commitment. In the case of the Operating Facility
the issuance of Letters of Credit pursuant to Article 5 by BT
or HKBC and the extension of an Overdraft by HKBC pursuant to
Article 5A shall not be done rateably. Accommodations shall be
made available as (i) Advances, pursuant to Article 3; (ii)
Drawings, pursuant to Article 4; (iii) Letters of Credit,
pursuant to Article 5, issued by BT or HKBC; and (iv)
Overdraft, pursuant to Article 5A, extended by HKBC."
5. Section 2.1(3) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (3) Provided that HKBC shall be under no obligation to make
Accommodations under the Operating Facility until BT has
issued one or more Letters of Credit in favour of HKBC
pursuant to Article 5, and then only to the extent of twice
the aggregate undrawn amount of any such outstanding Letters
of Credit, and, in any event, subject to the provisions of
Article 5A, the failure of any Lender to make an Accommodation
shall not relieve any other Lender of its obligation, if any,
in connection with such Accommodation, but no Lender shall be
responsible for such other Lender's failure in respect of such
Accommodation."
6. Section 2.1 of the Credit Agreement is hereby amended by adding the
following subsection:
"(5) Notwithstanding any other provisions of this Agreement, no
further Accommodations may be obtained under either the
Acquisition Facility or the Term Facility, and the Acquisition
Commitment and the Term Commitment are reduced to the
Accommodations Outstanding under the Acquisition Facility and
the Term Facility, respectively, as of the date of this
Agreement and thereafter from time to time."
7. The last sentence of section 2.2(1) is hereby amended to read in its
entirety as follows:
" Subject to the provisions of Articles 5 and 5A, Accommodations under
the Operating Facility shall revolve and may be repaid and reborrowed
from time to time."
8. Section 2.3(1) of the Credit Agreement is hereby amended to delete the
words "under the Working Capital Line" in subparagraph (i) thereof.
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9. Section 2.9 of the Credit Agreement is hereby amended to add the
following as paragraph (2):
" (2) All amounts received by HKBC as a credit to the Overdraft
Account will be applied against the outstanding Overdraft."
10. Section 3.3 of the Credit Agreement is hereby amended such that each
reference to "0.75 of 1% per annum" is replaced by "0.50 of 1% per annum, from
and including January 11, 1999 up to and including June 30, 1999, and 0.75 of 1%
per annum prior to January 11, 1999 or after June 30, 1999".
11. Section 5.1 of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (1) BT which has an Operating Commitment agrees, on the terms and
conditions of this Agreement to issue Letters of Credit
denominated in Canadian dollars (in a maximum aggregate amount
not exceeding $3,250,000 once the existing Letter of Credit
issued by BT in favour of Canadian Imperial Bank of Commerce
has been terminated) under the Operating Facility, for the
account of the Borrower from time to time on any Business Day
prior to the Relevant Repayment Date.
(2) HKBC which has an Operating Commitment may, in its sole
discretion, agree, on the terms and conditions of this
Agreement to issue Letters of Credit denominated in Canadian
dollars under the Operating Facility for the account of the
Borrower from time to time on any Business Day prior to the
Relevant Repayment Date."
12. Section 5.2(2) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (2) Not later than 2:00 p.m. (Toronto time) on the Issue Date, BT
or HKBC (provided in the case of HKBC that it has consented to
do so), as applicable, shall issue a Letter of Credit
completed in accordance with the Issue Notice in the
appropriate form. Upon receipt of the Letter of Credit and
upon fulfilment of the conditions set forth in Article 6, the
Agent shall deliver the Letter of Credit to or to the order of
the Borrower."
13. Section 5.2(4) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (4) Prior to the Issue Date, the Borrower shall provide a precise
description of the documents and the verbatim text of any
certificates to be presented by the Beneficiary which, if
presented by the Beneficiary, would require BT or HKBC, as
applicable, to make payment under the Letter of Credit. BT or
HKBC, as applicable, may require changes in any such document
or certificate."
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14. Section 5.5(2) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (2) If the Borrower fails to pay to BT or HKBC, as applicable, the
amount drawn under any Letter of Credit, the unpaid amount due
and payable shall, in the case of BT, automatically as of such
date, and without the necessity for the Borrower to give any
Borrowing Notice pursuant to Section 3.2, be deemed to be a
Canadian Prime Rate Advance advanced by BT upon the basis set
out in Section 3.3 above, and, in the case of HKBC, be debited
by HKBC to the Overdraft Account."
15. Section 5.6(1) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (1) In determining whether to pay under a Letter of Credit, BT or
HKBC, as applicable, shall be responsible only to determine
that the documents and certificates required to be delivered
under such Letter of Credit have been delivered and that they
comply on their face with the requirements of such Letter of
Credit."
16. Section 5.6(2) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (2) The reimbursement obligation of the Borrower under any Letter
of Credit shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement
under all circumstances, including (i) any lack of validity or
enforceability of a Letter of Credit, (ii) the existence of
any claim, set-off, defense or other right which the Borrower
may have at any time against a Beneficiary or any transferee
of a Letter of Credit, the Lender or any other Person, whether
in connection with the Credit Documents, the transactions
contemplated therein or any other transaction (including any
underlying transaction between the Borrower and the
Beneficiary), (iii) any draft, demand, certificate or any
other document presented with a Letter of Credit proving to be
forged, fraudulent or invalid or any statement in it being
untrue or inaccurate, (iv) the existence of any act or
omission or any misuse of, a Letter of Credit or
misapplication of proceeds by the Beneficiary, including any
fraud in any draft, demand, certificate or any other document
presented with a Letter of Credit, (v) payment by BT or HKBC,
as applicable, under the Letter of Credit against presentation
of a demand, draft or certificate or other document which does
not comply with the terms of the Letter of Credit unless such
payment constitutes fraud, gross negligence or wilful
misconduct of BT or HKBC, as applicable, or (vi) the existence
of a Default or Event of Default."
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17. Section 5.6(3) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (3) BT or HKBC, as applicable, shall be responsible for (i) the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of
Credit or the rights or benefits under it or proceeds of it,
in whole or in part, which may prove to be invalid or
ineffective for any reason, (ii) errors, omissions,
interruptions or delays in transmission or delivery of any
messages by mail, telecopy or otherwise, (iii) errors in
interpretation of technical terms, (iv) any loss or delay in
the transmission of any document required in order to make a
drawing, and (v) any consequences arising from causes beyond
the control of the Lender, including the acts or omissions,
whether rightful or wrongful, of any Governmental Entity. None
of the above shall affect, impair, or prevent the vesting of
any of the BT's or HKBC's rights or powers under this
Agreement. Any action taken or omitted by BT or HKBC under or
in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put
BT or HKBC under any resulting liability to the Borrower
provided that BT or HKBC acts in accordance with the standards
of reasonable care specified in the UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 Revision), ICC
Publication 500 (or any replacement publication)."
18. Section 5.7(1) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (1) The Borrower shall pay to BT or HKBC, as applicable, a Fee
equal to .125 of 1% per annum of its Face Amount, for the
period during which a Letter of Credit is outstanding. Such
Fee shall be calculated daily and payable in advance on the
Issue Date in Canadian dollars and shall be non-refundable."
19. Section 5.7(2) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (2) The Borrower shall pay to BT or HKBC, as applicable, a Fee
equal to 1.625% per annum for the period during which a Letter
of Credit is outstanding, which Fee, subject to the following
sentence, shall be calculated, on a 365/366 day year basis,
and payable in arrears on the last day of each month. To the
extent such Letter of Credit has been issued by BT in favour
of HKBC such Fee shall be calculated, on a 365/366 day year
basis, based on 50% of the average total utilisation by the
Borrower of the Operating Facility by way of Overdraft or
Letters of Credit issued by HKBC for such preceding month, and
payable by HKBC, on behalf of the Borrower, to BT in arrears
on the 15th day of each month with respect to the immediately
preceding calender month."
20. Section 5.7(3) of the Credit Agreement is hereby amended to read in its
entirety as follows:
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" (3) The Borrower shall pay to BT or HKBC, as applicable, upon the
issuance, amendment or transfer of each Letter of Credit
issued by BT or HKBC, as applicable, and each drawing made
thereunder, the standard and prevailing documentary and
administrative charges of BT or HKBC, as applicable, for
issuing, amending, transferring or drawing under, as the case
may be, Letters of Credit of similar amount, term and risk."
21. Section 5.7 of the Credit Agreement is hereby amended by adding the
following subsection:
" (4) The Borrower shall pay to HKBC a non-usage Fee equal to 0.125
of 1% per annum, calculated, on a 365/366 day year basis based
on the difference between (i) the average total utilisation by
the Borrower of the Operating Facility by way of Overdraft or
a Letter of Credit issued by HKBC for such preceding month and
(ii) the Operating Commitment, and payable in arrears on the
15th day of each month with respect to the immediately
preceding calender month, such Fee to be divided equally
between BT and HKBC."
22. Section 5.8(1) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (1) If the Borrower shall be required to repay the Accommodations
pursuant to Article 2 or Article 9, then the Borrower shall
pay to BT or HKBC, as applicable, to the extent required in
those Articles, an amount equal to the contingent liability of
BT or HKBC, as applicable, in respect of (i) any outstanding
Letter of Credit, and (ii) any Letter of Credit which is the
subject matter of any order, judgment, injunction or other
such determination (a "JUDICIAL ORDER") restricting payment
under and in accordance with such Letter of Credit or
extending the liability of BT or HKBC, as applicable, under
such Letter of Credit beyond its stated expiration date.
Payment in respect of each Letter of Credit shall be due in
Canadian dollars."
23. Section 5.8(2) of the Credit Agreement is hereby amended to read in its
entirety as follows:
" (2) BT or HKBC, as applicable, shall, with respect to any Letter
of Credit, upon the later of:
(a) the date on which any final and non-appealable order,
judgment or other such determination has been
rendered or issued either terminating the applicable
Judicial Order or permanently enjoining BT or HKBC,
as applicable, from paying under such Letter of
Credit; and
(b) the earlier of (i) the date on which either (x) the
original counterpart of the Letter of Credit is
returned to BT or HKBC, as applicable, for
cancellation, or (y) BT or HKBC, as applicable, is
released by the
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Beneficiary from any further obligations, and (ii)
the expiry (to the extent permitted by any applicable
Law) of the Letter of Credit,
pay to the Borrower an amount equal to the difference between the
amount paid to BT or HKBC, as applicable, pursuant to Section 5.8(1)
and the amounts paid by BT or HKBC, as applicable, under the Letter of
Credit."
24. The Credit Agreement is hereby amended by adding the following as
Article 5A:
"ARTICLE 5A - OVERDRAFT
SECTION 5A.1. HKBC, which has an Operating Commitment, agrees, on the
terms and conditions of this Agreement, to the extent of: (a) two times
the aggregate outstanding amount of Letters of Credit issued by BT in
its favour pursuant to Section 5.1 (1) above, to permit the Borrower to
incur an Overdraft in the Overdraft Account from time to time prior to
the Relevant Repayment Date LESS (b) the face amount of all Letters of
Credit issued by HKBC pursuant to this Agreement at the request of and
to accommodate the Borrower.
SECTION 5A.2. The Borrower shall pay interest to HKBC on the daily
closing balance of the Overdraft at the Overdraft Rate. Such interest
shall be calculated, on the basis of a 365/366 day year for the actual
number of days occurring in the period for which such interest is
payable, and payable monthly in arrears on the last day of each and
every month.
SECTION 5A.3 In addition to debiting the Overdraft Account with the
amount of each cheque, payment, order or other item drawn on the
Overdraft Account, and each withdrawal, HKBC shall also be entitled to
debit the Overdraft Account with the amount of all interest (including
compound interest) payable by the Borrower monthly to HKBC pursuant to
this Agreement.
SECTION 5A.4. The Borrower shall not permit the Overdraft to exceed the
Operating Commitment or such lesser amount as may be permitted pursuant
to Section 5A.1 above (the "PERMITTED OVERDRAFT"). HKBC may refuse to
honour any cheque, permit any withdrawal, or pay any other item if the
Overdraft exceeds, or would after such payment exceed, the Permitted
Overdraft on the date such cheque, withdrawal or other item is
presented to HKBC for payment; provided this Agreement shall continue
to apply to the Overdraft and to the Borrower notwithstanding that any
Overdraft is in excess of the Permitted Overdraft.
SECTION 5A.5. The Borrower shall deliver to HKBC from time to time,
promptly on request by HKBC, such number of HKBC's standard form Line
of Credit By Way Of Current Account Overdraft Agreements as HKBC may
request (collectively the "Overdraft Security"), and, in form and
substance satisfactory to HKBC, a demand promissory note or other
acknowledgement of debt evidencing
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the amount of all indebtedness and liability then owing by the Borrower
to HKBC in respect of the Overdraft, and in this regard the Borrower
shall deliver to HKBC a supply of blank demand promissory notes which
HKBC shall be authorized, at its discretion, to complete on behalf of
the Borrower from time to time in pursuance of this clause. In the
event that any such promissory note or any other acknowledgement of
debt, security or other document is requested by HKBC, HKBC shall not
be obligated to honour any cheque or permit any withdrawal or other
debit to the Overdraft Account until such promissory note, other
acknowledgement of debt, security or other document is delivered to
HKBC.
SECTION 5A.6. The Borrower shall comply with the Overdraft Security and
all present and future agreements between the Borrower and HKBC,
including any operation of account agreements between the Borrower and
HKBC; provided that in the event there exists any conflict between the
provisions of (i) the Overdraft Security or any of such agreements and
(ii) the provisions hereof, the provisions hereof shall govern.
SECTION 5A.7. HKBC shall have the right at any time, notwithstanding
any other provision of this Agreement or the occurrence or
non-occurrence of a Default or an Event of Default, to demand immediate
payment of the Overdraft, or any part thereof, together with interest,
fees, charges and costs outstanding hereunder and the Borrower shall
forthwith comply with any such demand. In addition, the Bank may at any
time, notwithstanding any other provision of this Agreement or the
occurrence or non-occurrence of a Default or an Event of Default,
refuse to permit any further Overdraft forthwith upon giving notice to
the Borrower, in which event thereafter HKBC shall not be obliged to
honour any cheque, permit any withdrawal or permit the creation or
increase of the Overdraft.
SECTION 5A.8. Upon receipt from HKBC each month of a statement of the
Overdraft Account together with all cheques or vouchers for amounts
appearing therein charged to the Overdraft Account, the Borrower shall
examine such statement, cheques or vouchers and check the credit and
debit entries in the statements, and, within thirty days after HKBC
delivers or mails such statement, cheques and vouchers to the Borrower,
the Borrower shall notify HKBC in writing of any errors, irregularities
or omissions therein or therefrom; and at the expiration of the said
thirty days (except as to any errors, irregularities or omissions of
which the Bank has been so notified) it shall be conclusively settled
as between HKBC and the Borrower that such statement and the amount of
the balance shown thereon is correct and the said cheques and vouchers
are genuine and properly chargeable to and charged against the
Overdraft Account and that the Borrower was not entitled to be credited
with any sum not credited, as reflected by the statement. For greater
certainty, HKBC shall not, in any legal action to which HKBC is a
party, be required to prove the evidence of any transaction which is
disclosed by any such statement or the accuracy of any such statement.
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SECTION 5A.9. No Security shall be released, discharged, redeemed or
extinguished by reason of the Overdraft being repaid or the Overdraft
Account ceasing to have a debit balance at any time or the Borrower
ceasing to be indebted to the Bank, and shall subsist and secure future
amounts debited to the Overdraft Account until such Security is
returned or released and discharged in writing by the Agent on behalf
of the Lenders."
25. Section 8.1(c) of the Credit Agreement is hereby amended to delete
the words in said paragraph (v) "the lender of the Working Capital Line" and
replace them by "HKBC".
26. Section 8.2(a) of the Credit Agreement is hereby amended to delete
subparagraph (vii).
27. Section 8.3(c) of the Credit Agreement is hereby amended to read in
its entirety as follows:
" (c) MAINTENANCE OF INTEREST COVERAGE RATIO. Ensure that Holdco 1,
Holdco 2 and their respective Consolidated Subsidiaries have,
as at the end of the Financial Quarter ending December 31,
1998, a minimum Interest Coverage Ratio of 1.60 to 1, as at
the end of each of the Financial Quarters ending March 31,
1999, and June 30, 1999, a minimum Interest Coverage Ratio of
1.75 to 1, as at the end of the Financial Quarter ending
September 30, 1999, a minimum Interest Coverage Ratio of 2.00
to 1 and, as at the end of each Financial Quarter thereafter,
a minimum Interest Coverage Ratio of 2.75 to 1."
28. Section 9.1 of the Credit Agreement is hereby amended by deleting the
reference to "BT's contingent liability" in the seventh last line thereof and
replacing it by "the contingent liability of BT or HKBC, as applicable,".
29. Section 10.5(1) of the Credit Agreement is hereby amended to read in
its entirety as follows:
" (1) The Security Interests and Security constituted by the
Security Documents shall be held by the Agent for the rateable
benefit of the Lenders, in accordance with their respective
terms. Whether such Security is held in the name of the Agent
or in the name of any one or more of the Lenders and without
regard to any priority to which any Lender may otherwise be
entitled under applicable Law, each Lender shall so benefit
based on the amount of Accommodations Outstanding, all
interest and Fees accrued thereon, and all other amounts
payable under this Agreement to such Lender as a proportion of
the aggregate amount of Accommodations Outstanding, all
interest and Fees accrued thereon and all other amounts
payable under this Agreement to all Lenders, provided that, on
the assumption that HKBC is able to draw as permitted under a
Letter of Credit issued by BT in HKBC's favour and
notwithstanding any other provision of this Agreement, BT and
HKBC shall benefit on a 50/50 basis with respect to any
proceeds of such Security in connection with Accommodations
Outstanding under the Operating Facility."
14
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30. Section 11.7 of the Credit Agreement is hereby amended by deleting the
word "Document" and replacing it by the word "Documents".
31. The Credit Agreement is hereby amended by amending the amount showing
on the execution page as being Operating Commitment for BT to read
"Cdn$3,250,000" (but effective only once the existing Letter of Credit issued by
BT in favour of Canadian Imperial Bank of Commerce has been terminated) and by
amending the amount shown on the same page as being Operating Commitment for
HKBC to read "Cdn$6,500,000" (but subject to the provisions of Section 5A.1).
32. The Credit Agreement is hereby amended by replacing the existing
Schedule 3A thereto by the revised Schedule 3A attached hereto.
All other terms and conditions of the Credit Agreement shall remain in full
force and effect, unamended, and the Borrower and Guarantor hereby confirm that
all existing Credit Documents (including, without limitation, any Guarantees)
and Security provided by them will remain in full force and effect for the
benefit of the Lenders after the execution and delivery of this Second
Amendment.
The Borrower hereby represents and warrants that the execution and delivery of
this Second Amendment and the performance by it of its obligations hereunder
have been duly authorized by all necessary corporate action, the Second
Amendment has been duly executed and delivered by the Borrower and constitutes a
legal, valid and binding obligation of the Borrower.
This Second Amendment shall be effective as of November 12, 1998, once fully
executed by the parties hereto and the Agent has been provided with the
following:
1. A certified copy of the resolution of the board of directors of the
Borrower approving the execution of this Second Amendment.
2. A certificate of an officer of the Borrower certifying the names and
true signatures of its officer authorized to sign this Second
Amendment.
3. A certificate of status, compliance, good standing or like certificate
with respect to the Borrower issued by the appropriate government
officials of the jurisdiction of its incorporation.
4. Confirmation in form satisfactory to the Agent from each Additional
Loan Party that the Credit Documents (including, without limitation any
Guarantee) and Security provided by it are in good standing and in full
effect.
5. Such other documents, instruments and legal opinions as the Agent or
its counsel may reasonably require.
6. A fee of Cdn$26,784 to be shared equally between the Lenders, such fee
being payable pursuant to Section 2.6(b) of the Credit Agreement as a
result of prepayments of $9,100,000
15
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having been made under the Acquisition Facility and of $2,060,000
having been made under the Term Facility. The fee of Cdn$26,784 was
calculated by dividing the aggregate of the prepayments, being
$11,160,000, by $50,000,000 and multiplying the result by $120,000.
7. A non-refundable loan restructuring fee of Cdn$388,400 to be shared
equally between the Lenders, payable by December 30, 1998.
8. Receipt by the Agent of a letter of credit in the amount of
US$8,000,000 issued by a bank acceptable to the Agent, and in form
satisfactory to the Agent, on behalf of First Union Real Estate Equity
and Mortgage Investments, which FUR Letter of Credit shall be held as
security for the benefit of the Lenders in respect of the
Accommodations Outstanding from time to time under the Credit
Facilities.
In addition, Imperial shall pay to BT and HKBC, as applicable, on demand, all
administrative costs and expenses, legal fees, and all other out-of-pocket costs
and expenses incurred by BT and HKBC, respectively, in connection with this
transaction.
Further it is hereby agreed that it will constitute an Event of Default under
the Credit Agreement if, due to any action of the Borrower or any failure to act
by the Borrower (or in the case of (1)(b) below any failure to act by Canadian
Imperial Bank of Commerce), the Borrower has failed:
(1) By noon on February 1, 1999 (a) to provide evidence
satisfactory to the Agent of the termination of all of the
Borrower's credit facilities with Canadian Imperial Bank of
Commerce; (b) to return to the Agent the Letter of Credit
issued by it in favour of Canadian Imperial Bank of Commerce;
and (c) to provide evidence that the Overdraft Account has
been opened with HKBC and that HKBC has received executed
copies of all required Overdraft Security.
(2) To provide by noon on February 1, 1999 evidence satisfactory
to the Agent that the Borrower has closed all its current
accounts with Canadian Imperial Bank of Commerce, other than
those accounts which BT and HKBC agree may remain open.
Notwithstanding the foregoing, the Lenders hereby acknowledge and agree that:
(a) each CIBC Letter of Credit will remain in place until such CIBC Letter
of Credit expires, is drawn on or is released, and in any event the
Borrower agrees that the CIBC Letters of Credit will be cancelled not
later than July 1, 1999.
Hongkong Bank of Canada hereby acknowledges and agrees that, from and after the
date hereof, it will perform cash management services for the Borrower,
including facilitating and overseeing the major portion of the work required in
order to achieve the transition contemplated by paragraphs (1) and (2) above
subject to the Borrower fully cooperating with HKBC in the process. Such Lender
further agrees that its fees for such cash management services will not exceed
the fees charged by Canadian Imperial Bank of Commerce for the same services,
namely, $14,300 monthly, such fees
16
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to be reviewed, and revised if applicable, by HKBC semi-annually based on actual
activity experience.
This Agreement shall be governed by, interpreted and enforced in accordance with
the laws of the Province of Ontario and the federal laws of Canada as applicable
therein, and may be executed in any number of counterparts. All such
counterparts shall be an original and taken together shall be deemed to
constitute one and the same instrument. Delivery by or on behalf of the
undersigned of a facsimile of a signed copy of this Agreement shall be
sufficient for all purposes.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
BT BANK OF CANADA IMPERIAL PARKING LIMITED
(as Lender and as Agent)
Per: Per:
------------------------------- -------------------------------------
Authorizing Signing Officer Authorizing Signing Officer
c/s
Per: Per:
------------------------------- -------------------------------------
Authorizing Signing Officer Authorizing Signing Officer
HONGKONG BANK OF CANADA IMPARK SERVICES LIMITED
Per: Per:
------------------------------- -------------------------------------
Authorizing Signing Officer Authorizing Signing Officer
c/s
Per: Per:
------------------------------- -------------------------------------
Authorizing Signing Officer Authorizing Signing Officer
17
SCHEDULE 3A
FORM OF ISSUE NOTICE
[DATE]
BT BANK OF CANADA
OR HONGKONG BANK OF CANADA
Attention: ____
Dear Sirs:
The undersigned, Imperial Parking Limited (the "Borrower") refers to
the Amended and Restated Credit Agreement dated as of April 17, 1997 as amended,
supplemented or restated from time to time (the "Credit Agreement", the terms
defined therein being used herein as therein defined) among the Borrower, the
Agent and the Lenders, and hereby gives you notice pursuant to Section 5.2(1) of
the Credit Agreement that the Borrower hereby requests an Issue under the Credit
Agreement, and, in that connection, sets forth below the information relating to
such Issue as required by Section 5.2(1) of the Credit Agreement:
(a) The date of the Issue, being a Business Day, is _______________.
(b) The Face Amount of such Letter of Credit is $_________.
(c) The expiration date of such Letter of Credit, being a Business Day is
___________ .(1)
(e) The conditions of drawing and documentary requirements are __________.
(e) The name and address of the Beneficiary is __________________________
____________________________________________________________________.
Yours truly,
IMPERIAL PARKING LIMITED
Per:
-----------------------------
Authorized Signing Officer
----------------
(1) The expiration date shall occur no later than one year from the Issue
Date.
