EXHIBIT 10.15
CIT FINANCIAL LTD.,
the Company
and
ROYAL BANK OF CANADA,
as Administrative Agent
and
CANADIAN IMPERIAL BANK OF COMMERCE
and
THE CHASE MANHATTAN BANK OF CANADA,
as Syndication Agents
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$500,000,000
364-DAY CREDIT AGREEMENT
Dated as of March 27, 2001
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RBC DOMINION SECURITIES,
as Sole Arranger and Book Manager
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS
Section 1.1 Defined Terms...............................................1
Section 1.2 Other Definitional Provisions...............................9
ARTICLE 2
AMOUNT AND TERMS OF COMMITMENTS
Section 2.1 Commitments.................................................9
Section 2.2 Borrowing Procedure.........................................9
Section 2.3 Repayment of Canadian Prime Rate Loans; Evidence of Debt...10
Section 2.4 Facility Fee; Administrative Agent's Fee...................11
Section 2.5 Utilization Fee............................................11
Section 2.6 Extension of Termination Date..............................11
Section 2.7 Termination or Reduction of Commitments....................13
Section 2.8 Optional Prepayments of Accommodations.....................14
Section 2.9 Applicable Interest Rate Margins, Facility Fee Rate and
Utilization Fee............................................14
Section 2.10 Interest Rates and Payment Dates...........................14
Section 2.11 Computation of Interest and Fees...........................15
Section 2.12 Pro Rata Treatment and Payments............................17
Section 2.13 Requirements of Law........................................18
Section 2.14 Taxes......................................................20
Section 2.15 Indemnity..................................................20
Section 2.16 Actions of Banks...........................................20
Section 2.17 Lending Installations......................................20
Section 2.18 Removal of Banks...........................................20
Section 2.19 Replacement of Banks.......................................21
ARTICLE 3
BANKERS' ACCEPTANCES
Section 3.1 Acceptances and Drafts.....................................22
Section 3.2 Form of Drafts.............................................22
Section 3.3 Procedure for Drawing......................................23
Section 3.4 Presigned Draft Forms......................................23
Section 3.5 Payment, Conversion or Renewal of Bankers' Acceptances.....24
Section 3.6 Circumstances Making Bankers' Acceptances Unavailable......25
(i)
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties.............................25
ARTICLE 5
CONDITIONS PRECEDENT
Section 5.1 Conditions to Initial Accommodations.......................27
Section 5.2 Conditions to Each Accommodation...........................28
ARTICLE 6
AFFIRMATIVE COVENANTS
Section 6.1 Payment of Obligations.....................................29
Section 6.2 Conduct of Business and Maintenance of Existence...........29
Section 6.3 Notices....................................................30
Section 6.4 Status of Obligations......................................31
Section 6.5 Payment of Taxes...........................................31
Section 6.6 Use of Proceeds............................................31
ARTICLE 7
NEGATIVE COVENANTS
Section 7.1 Negative Pledge............................................31
Section 7.2 Assignment.................................................34
ARTICLE 8
EVENTS OF DEFAULT
Section 8.1 Events of Default..........................................35
ARTICLE 9
THE AGENTS
Section 9.1 Appointment................................................38
Section 9.2 Delegation of Duties.......................................38
Section 9.3 Exculpatory Provisions.....................................38
Section 9.4 Reliance by Administrative Agent...........................39
Section 9.5 Notice of Default..........................................39
Section 9.6 Non-Reliance on Administrative Agent.......................39
Section 9.7 Indemnification............................................40
Section 9.8 Administrative Agent in Its Individual Capacity............41
Section 9.9 Successor Administrative Agent.............................41
(ii)
ARTICLE 10
MISCELLANEOUS
Section 10.1 Amendments and Waivers.....................................41
Section 10.2 Notices....................................................42
Section 10.3 No Waiver; Cumulative Remedies.............................43
Section 10.4 Survival of Representations and Warranties.................43
Section 10.5 Payment of Expenses and Taxes..............................44
Section 10.6 Successors and Assigns; Participations; Purchasing Banks...44
Section 10.7 Dissemination of Information; Confidentiality..............47
Section 10.8 Adjustments................................................48
Section 10.9 Counterparts...............................................49
Section 10.10 Severability...............................................49
Section 10.11 Integration................................................49
Section 10.12 GOVERNING LAW..............................................49
Section 10.13 Submission To Jurisdiction; Waivers........................50
Section 10.14 WAIVERS OF JURY TRIAL......................................50
SCHEDULES
I Commitments and Bank Information
EXHIBITS
A-1 Form of Opinion of Counsel to the Company
A-2 Form of Opinion of Counsel to the Guarantor
A-3 Form of Opinion of Stikeman Elliott
B Form of Commitment Transfer Supplement
C-1 Form of Officer's Certificate
C-2 Form of Officer's Certificate
C-3 Form of Secretary's Certificate
D Form of Incumbency Certificate
E Form of Notice of Borrowing
F Form of Drawing Notice
G Form of Guaranty
(iii)
364 - DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT, dated as of March 27, 2001, among CIT FINANCIAL
LTD., a corporation incorporated under the laws of Ontario, the several banks
and other financial institutions from time to time on Schedule I to this
Agreement (the "BANKS"), ROYAL BANK OF CANADA ("RBC"), as administrative agent
(in such capacity, the "ADMINISTRATIVE AGENT"), and CANADIAN IMPERIAL BANK OF
COMMERCE AND THE CHASE MANHATTAN BANK OF CANADA, as syndication agents (in such
capacity, the "SYNDICATION AGENTS").
RECITALS:
(a) The Company has requested $500,000,000 in senior unsecured revolving
credit facilities from the Banks for general corporate purposes; and
(b) the Banks are willing to provide the requested senior unsecured
revolving credit facilities on the terms and conditions set forth
herein.
In consideration of the foregoing and the mutual agreements contained
herein (the receipt and adequacy of which are acknowledged), the parties agree
as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINED TERMS.
As used in this Agreement, the following terms shall have the following
meanings:
"ACCOMMODATION" means (i) a Canadian Prime Rate Loan, (ii) the creation and
purchase of Bankers Acceptances or the completion and purchase of completed
Drafts by a Bank or by any other Person, and (iii) a BA Equivalent Note.
"ACCOMMODATIONS OUTSTANDING" means, at any time, an amount equal to (i) in
relation to the Company and any Bank, the sum of (A) the aggregate principal
amount of all outstanding Canadian Prime Rate Loans made by such Bank, and (B)
the aggregate Face Amount of all outstanding Bankers' Acceptances, completed
Drafts and BA Equivalent Notes which the Bank has purchased or has arranged to
have purchased, and (ii) in relation to the Company and all Banks, the sum of
Accommodations Outstanding to each Bank.
"ADMINISTRATIVE AGENT" has the meaning as set forth in the preamble hereto.
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"AFFILIATE" means as to any Person, any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, such Person.
"AGENTS" means the collective reference to the Administrative Agent and the
Syndication Agents.
"AGGREGATE AVAILABLE COMMITMENT" means at any time, the excess, if any, of (i)
the Aggregate Commitment over (ii) the aggregate principal amount of all
Accommodations Outstanding.
"AGGREGATE COMMITMENT" means the aggregate amount of the Banks' Commitments.
"AGREEMENT" means this 364-Day Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPLICABLE BA MARGIN" has the meaning as set forth in Section 2.9.
"APPLICABLE CANADIAN PRIME MARGIN" has the meaning as set forth in Section 2.9.
"APPLICABLE FACILITY FEE RATE" has the meaning as set forth in Section 2.9.
"APPLICABLE MARGIN" has the meaning as set forth in Section 2.9.
"APPLICABLE UTILIZATION FEE RATE" has the meaning as set forth in Section 2.9.
"BA EQUIVALENT NOTE" has the meaning as set forth in Section 3.3(3).
"BANKERS' ACCEPTANCE" has the meaning as set forth in Section 3.1(1).
"BANKS" has the meaning as set forth in the preamble hereto.
"BORROWING" means any borrowing consisting of simultaneous Canadian Prime Rate
Loans from each of the Banks.
"BORROWING DATE" means a date on which a Borrowing is made hereunder.
"BUSINESS DAY" means a day other than a Saturday, Sunday or other day on which
commercial banks in Toronto are authorized or required by law to close.
"CANADIAN PRIME RATE" means, on any day, the greater of (i) the rate of interest
per annum equal to the per annum rate of interest quoted, published and commonly
known as the "PRIME RATE" of RBC which RBC establishes at its main office in
Toronto, Ontario as the reference rate of interest in order to determine
interest rates for commercial loans in Dollars to its Canadian borrowers,
adjusted automatically
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and with each quoted or published change in the prime rate of RBC there shall be
a corresponding change in the rate of interest payable under this Agreement, all
without necessity of any prior notice thereof to the Company or any other
Person, and (ii) the rate for Canadian Dollar bankers' acceptances accepted by
RBC with a term to maturity of 30 days as quoted on the Reuters Screen CDOR Page
as of 10:00 a.m. (Toronto time) on such day (and if such screen is not
available, any successor or similar service as may be selected by the Company
and the Administrative Agent) plus 0.50%.
"CANADIAN PRIME RATE LOAN" means a loan bearing interest at a rate determined by
reference to the Canadian Prime Rate in accordance with Article 2.
"CIT U.S. CREDIT AGREEMENT" means the 364-Day Credit Agreement dated as of March
28, 2000 among the Guarantor, the lenders party thereto, The Chase Manhattan
Bank, as administrative agent, Chase Securities Inc as lead arranger and book
manager, Barclays Bank PLC, Bank of America, N.A., Citibank, N.A. and The
Dai-Ichi Kangyo Bank, Limited, as syndication agents, as amended, modified,
supplemented or restated from time to time.
"CLOSING DATE" means the date on which the conditions precedent set forth in
Section 5.1 are satisfied.
"COMMITMENT" means, with respect to any Bank, the obligation of such Bank to
make Accommodations to the Company hereunder in an aggregate principal amount at
any one time outstanding not to exceed the amount set forth opposite such Bank's
name on Schedule I, as the same may be decreased or terminated from time to time
in accordance with Section 2.7.
"COMMITMENT PERCENTAGE" means, with respect to any Bank at any time, the
percentage of the Aggregate Commitment then constituted by such Bank's
Commitment, or, at any time after the Commitments shall have expired or
terminated, the percentage which the amount of such Bank's Accommodations
Outstanding constitutes of the amount of the Accommodations Outstanding.
"COMMITMENT PERIOD" means the period from and including the date hereof to but
not including the Termination Date or such earlier date on which the Aggregate
Commitment shall terminate as provided herein.
"COMMITMENT TRANSFER SUPPLEMENT" has the meaning as set forth in Section
10.6(3).
"COMPANY" means CIT Financial Ltd. and its successors and assigns.
"CONTINUING BANKS" has the meaning as set forth in Section 2.6(1).
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"CONTRACTUAL OBLIGATION" means as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"DEFAULT" means any of the events specified in Section 8.1, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied.
"DISCOUNT RATE" means, in respect of any Bankers' Acceptances or Drafts to be
purchased by a Bank pursuant to Article 3, (i) for a Bank which is a Schedule I
Bank, (y) the average bankers' acceptances discount rate for the appropriate
term as quoted on Reuters Screen CDOR Page determined at or about 10:00 a.m.
(Toronto time) on that day or, (z) if the discount rate for a particular term is
not quoted on Reuters Screen CDOR Page, the actual discount rate accepted by
RBC, and (ii) for any other Bank, the arithmetic average of the actual discount
rate quoted by the Reference Banks (as selected by the Administrative Agent and
the Company) but not to exceed the actual rate of discount quoted in (i) above
plus 0.08%.
"DOLLARS" and "$" means dollars in lawful currency of Canada.
"DRAFT" means, at any time, either a depository xxxx within the meaning of the
DEPOSITORY BILLS AND NOTES ACT (Canada), or a xxxx of exchange within the
meaning of the BILLS OF EXCHANGE ACT (Canada), drawn by the Company on a Bank or
any other Person and bearing such distinguishing letters and numbers as the Bank
or the Person may determine, but which at such time has not been completed as
the payee or accepted by the Bank or the Person.
"DRAWING" means (i) the creation and purchase of Bankers' Acceptances by a Bank
or by any other Person pursuant to Article 3, or (ii) the purchase of completed
Drafts by a Bank or by any other Person pursuant to Article 3.
"DRAWING DATE" means any Business Day fixed pursuant to Section 3.3 for a
Drawing.
"DRAWING FEE" means, with respect to each Draft drawn by the Company hereunder
and purchased by any Person on any Drawing Date, an amount equal to the product
of the Applicable BA Margin and the Face Amount of such Draft, calculated on the
basis of the term to maturity of such Draft and a year of 365 days.
"DRAWING NOTICE" has the meaning as set forth in Section 3.3(1).
"DRAWING PURCHASE PRICE" means, in respect of Bankers' Acceptances or Drafts to
be purchased by a Bank or any other Person, an amount equal to the product of
(i) the aggregate Face Amount of such Bankers' Acceptances or Drafts, and (ii)
the result (rounded to the nearest whole cent, with one-half of one cent being
rounded up)
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obtained by dividing one by the sum of one plus the product of (x) the relevant
Bank's Discount Rate multiplied by (y) a fraction the numerator of which is the
number of days in the term of maturity of such Bankers' Acceptances and the
denominator of which is 365.
"EVENT OF DEFAULT" means any of the events specified in Section 8.1, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"EXISTING CREDIT AGREEMENT" means the credit agreement dated as of March 28,
2000 among The CIT Financial Group Canada Ltd., Royal Bank of Canada, as
administrative agent, Canadian Imperial Bank of Commerce and The Chase Manhattan
Bank of Canada as syndication agents and the lenders party thereto.
"EXTENSION NOTICE" has the meaning as set forth in Section 2.6(1).
"FACE AMOUNT" means in respect of a Bankers' Acceptance, a Draft or a BA
Equivalent Note, as the case may be, the amount payable to the holder thereof on
its maturity.
"FEE PAYMENT DATE" means the last day of each calendar quarter, commencing March
31, 2001, the Termination Date and the Maturity Date.
"FINANCING LEASE" means any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"GAAP" means generally accepted accounting principles in Canada in effect from
time to time.
"GOVERNMENTAL AUTHORITY" means any nation or government, any province, state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"GUARANTY" means the guaranty dated as of March 27, 2001 executed by the
Guarantor in favour of the Administrative Agent substantially in the form
attached hereto as Exhibit G; and from and after an assignment and assumption as
contemplated in Section 7.2, means the Guaranty delivered to the Administrative
Agent pursuant to such Section 7.2.
"GUARANTOR" means The CIT Group, Inc. and its successors and assigns.
"HEDGING AGREEMENT" means any swap, cap, collar, floor or other hedging
agreement in respect of interest rates or currency exchange rates. For purposes
of this Agreement, the amount of any obligations or liabilities in respect of
any
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Hedging Agreement shall be the amounts, including any termination payments, that
would be required to be paid to a counterparty upon early termination (in
accordance with customary industry standards) rather than any notional amount
with regard to which payments may be calculated.
"INDEBTEDNESS" means such Person's (i) obligations for borrowed money, (ii)
obligations representing the deferred purchase price of property or services
other than accounts payable arising in the ordinary course of such Person's
business, (iii) obligations, whether or not assumed, secured by Liens on
property now or hereafter owned or acquired by such Person (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
statutory Liens arising in the ordinary course of business), (iv) obligations
which are evidenced by notes, acceptances, or other similar instruments, (v)
capitalized lease obligations, (vi) contingent obligations with respect to the
Indebtedness of another Person, including but not limited to the obligation or
liability of another which such Person assumes, guarantees, endorses,
contingently agrees to purchase or provide funds for the payment of, or
otherwise becomes contingently liable upon; provided that any Indebtedness owing
by the Company to any of its Subsidiaries or by any Subsidiary of the Company to
the Company or by any Subsidiary of the Company to any other Subsidiary of the
Company or any contingent obligation in respect thereof shall not constitute
Indebtedness for purposes of this Agreement, and (vii) obligations for which
such Person is obligated in respect of a letter of credit. For purposes of this
Agreement, Indebtedness shall not include (A) any indebtedness of such Person to
the extent (I) such indebtedness does not appear on the financial statement of
such Person, (II) such indebtedness is recourse only to certain assets of such
Person, and (III) the assets to which such indebtedness is recourse only appear
on the financial statements of such Person net of such indebtedness, or (B) any
indebtedness or other obligations issued by any Person (or by a trust or other
entity established by such Person or any of its affiliates) which are primarily
serviced by the cash flows of a discrete pool of receivables, leases or other
financial assets which have been sold or transferred by the Company or any
Subsidiary in securitization transactions which, in accordance with GAAP, are
accounted for as sales for financial reporting purposes. It is understood and
agreed that (1) the amount of any Indebtedness described in clause (iii) for
which recourse is limited to certain property of such Person shall be the lower
of (x) the amount of the obligation and (y) the fair market value of the
property of such Person securing such obligation, and (2) the amount of any
obligation described in clause (vi) shall be the lower of (x) the stated or
determinable amount of the primary obligation in respect of which such
contingent obligation is made, and (y) the maximum amount for which such Person
may be liable pursuant to the terms of the agreement embodying such contingent
obligation unless such primary obligation and the maximum amount for which such
Person may be liable are not stated or determinable, in which case the amount of
such
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contingent obligation shall be such Person's maximum, reasonably anticipated
liability in respect thereof as determined by such Person in good faith.
"INTEREST PAYMENT DATE" means as to any Canadian Prime Rate Loan, the last day
of each month during which such Canadian Prime Rate Loan is outstanding and the
Termination Date.
"LENDING INSTALLATION" means any branch or office of any Bank selected by such
Bank to be a Lending Installation in accordance with Section 2.17.
"LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement and any Financing Lease having substantially the same
economic effect as any of the foregoing).
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the ability of the
Guarantor to perform its obligations under the Guaranty.
"MATURITY DATE" means the first anniversary of the Termination Date (as such
Termination Date may be extended from time to time).
"NET WORTH COVENANT" means Section 6.3 of the CIT U.S. Credit Agreement which is
incorporated by reference in the Guaranty pursuant to Section 6 of the Guaranty.
"NON-EXTENDING BANKS" has the meaning as set forth in Section 2.6(1)
"NOTICE OF BORROWING" has the meaning as set forth in Section 2.2
"PARTICIPANT" has the meaning as set forth in Section 10.6(2).
"PERSON" means an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"RBC" has the meaning as set forth in the preamble hereto.
"REFERENCE BANKS" means two Schedule II Banks or Schedule III Banks as so
designated by the Company and the Administrative Agent.
"REQUIRED BANKS" means at a particular time, Banks whose Commitment Percentages
aggregate at least 51% or, if the Aggregate Commitment has been terminated or
for purposes of any decision to accelerate the Accommodations
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Outstanding pursuant to Section 8.1, Banks in the aggregate holding at least 51%
of the Accommodations Outstanding.
"REQUIREMENT OF LAW" means as to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or final determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any material portion of its property or to which such Person
or any material portion of its property is subject.
"RESPONSIBLE OFFICER" means the chief executive officer, the vice chairman, the
president, the secretary, any vice president of the Company or, with respect to
financial matters, (i) the chief financial officer of the Company, (ii) the
treasurer of the Company, or (iii) the controller of the Company.
"SCHEDULE I BANK" means any Bank named on Schedule I to the BANK ACT (Canada).
"SCHEDULE II BANK" means any Bank named on Schedule II to the BANK ACT (Canada).
"SCHEDULE III BANK" means any Bank named on Schedule III to the BANK ACT
(Canada).
"SUBSIDIARY" means as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "SUBSIDIARY" or to
"SUBSIDIARIES" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company.
"SYNDICATION AGENT" has the meaning as set forth in the preamble hereto.
"TERMINATION DATE" means March 26, 2002, as such date may be extended from time
to time in accordance with Section 2.6.
"TRANSFER EFFECTIVE DATE" has the meaning as set forth in Section 10.6(3).
"TRANSFEREE" has the meaning as set forth in Section 10.7.
"U.S. DOLLARS" or "US$" means the lawful currency for the time being of the
United States of America.
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"UTILIZATION FEE" has the meaning as set forth in Section 2.5.
SECTION 1.2 OTHER DEFINITIONAL PROVISIONS
(1) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto.
(2) As used herein and in any certificate or other document made or delivered
pursuant hereto, accounting terms relating to the Company and its
Subsidiaries not defined in Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(3) The words "HEREOF", "HEREIN" and "HEREUNDER" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(4) The meanings given to terms defined herein shall be equally applicable to
both the singular and plural forms of such terms.
ARTICLE 2
AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1 COMMITMENTS.
Subject to the terms and conditions hereof, each Bank severally agrees to
make Accommodations available to the Company, from time to time during the
Commitment Period in an aggregate principal amount at any one time outstanding
not to exceed the amount of such Bank's Commitment. Notwithstanding anything to
the contrary contained in this Section 2.1, at no time shall the aggregate of
Accommodations Outstanding of all Banks exceed the Aggregate Commitment. During
the Commitment Period the Company may borrow, pay or prepay and reborrow
hereunder, all in accordance with the terms and conditions set forth in this
Agreement.
SECTION 2.2 BORROWING PROCEDURE.
Subject to the terms and conditions hereof, the Company may request
Canadian Prime Rate Loans during the Commitment Period on any Business Day,
provided that the Company shall give the Administrative Agent irrevocable
notice, substantially in the form of Exhibit E (a "NOTICE OF BORROWING"), (which
notice must be received by the Administrative Agent prior to 10:00 A.M., Toronto
time, on the Borrowing Date), specifying (i) the amount to be borrowed, and (ii)
the requested
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Borrowing Date. Each Borrowing shall be in an amount equal to $10,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the then Aggregate
Available Commitment is less than $10,000,000, such lesser amount). Upon receipt
of any such notice from the Company, the Administrative Agent shall promptly
notify the Lending Installation of each Bank thereof. Each Bank will make the
amount of its pro rata share of each Borrowing available to the Administrative
Agent at the office of the Administrative Agent specified in Section 10.2 prior
to 1:00 P.M., Toronto time, on the Borrowing Date requested by the Company in
funds immediately available to the Administrative Agent. The Administrative
Agent shall make the funds so received from the Banks immediately available to
the Company at the Administrative Agent's aforesaid address or to an account
designated by the Company.
SECTION 2.3 REPAYMENT OF CANADIAN PRIME RATE LOANS; EVIDENCE OF DEBT.
(1) The Company unconditionally promises to pay to the Administrative Agent
for the account of the relevant Bank on the Maturity Date (or such earlier
date as the Canadian Prime Rate Loans become due and payable pursuant to
Section 2.8 or Section 8.1), the unpaid principal amount of each Canadian
Prime Rate Loan made to it by such Bank. The Company further agrees to pay
interest in immediately available funds at the office of the
Administrative Agent on the unpaid principal amount of Canadian Prime Rate
Loans from time to time from the date hereof until payment in full thereof
at the rates per annum, and on the dates, set forth in Section 2.10.
(2) The Administrative Agent shall maintain in accordance with its usual
practice accounts and records evidencing the Indebtedness of the Company
to each Bank resulting from the Accommodations made by such Bank to the
Company, including (i) the amount of each Accommodation made hereunder,
whether such Accommodation is a Canadian Prime Rate Loan, a Bankers'
Acceptance or a BA Equivalent Note, and the maturity date (if any)
applicable thereto, and (ii) the amounts of principal and interest payable
and paid to such Bank from time to time hereunder.
(3) The accounts and records maintained pursuant to Section 2.3(2) shall be
prima facie evidence of the items contained therein; provided, however,
that the failure of any Bank or the Administrative Agent to maintain such
account or such records, or any error therein, shall not in any manner
affect the obligation of the Company to repay (with applicable interest)
any Accommodation made to the Company by such Bank in accordance with the
terms of this Agreement.
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SECTION 2.4 FACILITY FEE; ADMINISTRATIVE AGENT'S FEE.
(1) The Company agrees to pay to the Administrative Agent for the account of
each Bank a non-refundable facility fee at the Applicable Facility Fee
Rate per annum (i) on the daily average amount of such Bank's Commitment
(whether borrowed or unborrowed) from and including the date hereof to and
excluding the Termination Date, and (ii) on the daily average amount of
each Bank's Accommodations Outstanding from and including the Termination
Date to and excluding the Maturity Date, in each case calculated daily and
payable quarterly in arrears and on each Fee Payment Date.
(2) The Company will pay to the Administrative Agent, for its own account, an
agent's fee equal to the amount agreed upon in writing between the Company
and the Administrative Agent, payable to the Administrative Agent in such
manner as the Company and the Administrative Agent may agree. Each Bank
acknowledges that the Administrative Agent is being paid certain other
fees for its own account in connection with the financing pursuant to this
Agreement in addition to the fees described in this Agreement.
SECTION 2.5 UTILIZATION FEE.
If the average daily amount of Accommodations Outstanding for the calendar
quarter preceding a Fee Payment Date (or such shorter period beginning with the
date hereof or ending with the Maturity Date) is in excess of 50% of the average
daily Aggregate Commitment for such calendar quarter or period (or, in the case
of any period after the Termination Date, 50% of the Aggregate Commitment
immediately prior to the Termination Date), the Company agrees to pay to the
Administrative Agent for the account of the Banks a non-refundable utilization
fee (the "UTILIZATION FEE") at the Applicable Utilization Fee Rate on such
average daily aggregate principal amount of the Accommodations Outstanding
during such calendar quarter (or shorter period), payable in arrears on each Fee
Payment Date.
SECTION 2.6 EXTENSION OF TERMINATION DATE.
(1) The Company, on its behalf and on behalf of the Guarantor, may by written
notice to the Administrative Agent (such notice being an "EXTENSION
NOTICE") given no earlier than sixty days and no later than forty-five
days prior to the Termination Date, request the Banks to consider an
extension of the then applicable Termination Date to a date 364 days after
the then applicable Termination Date. The Administrative Agent shall
promptly transmit any Extension Notice to each Bank. Each Bank shall
notify the Administrative Agent whether it wishes to extend the then
applicable Termination Date no earlier than thirty days, and no later than
twenty days, prior to such Termination Date, and any such notice given by
a Bank to the Administrative Agent, once given, shall be irrevocable as to
such Bank. Any Bank which
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does not expressly notify the Administrative Agent prior to such twenty
day period that it wishes to so extend the then applicable Termination
Date shall be deemed to have rejected the Company's request for extension
of such Termination Date. Banks consenting to extend the then applicable
Termination Date are hereinafter referred to as "CONTINUING BANKS", and
Banks declining to consent to extend such Termination Date (or Banks
deemed to have so declined) are hereinafter referred to as "NON-EXTENDING
BANKS". If the Required Banks have elected (in their sole and absolute
discretion) to so extend the Termination Date, the Administrative Agent
shall notify the Company of such election by such Required Banks no later
than fifteen days prior to such Termination Date, and effective on the
date of such notice by the Administrative Agent to the Company, the
Termination Date shall be automatically and immediately so extended. No
extension will be permitted hereunder without the consent of the Required
Banks and in no event shall the Termination Date be extended beyond March
23, 2005. Upon the delivery of an Extension Notice and upon the extension
of the Termination Date pursuant to this Section 2.6, the Company shall be
deemed to have represented and warranted on and as of the date of such
Extension Notice and the effective date of such extension, as the case may
be, that no Default or Event of Default has occurred and is continuing and
that the representations and warranties of the Company contained herein
are true and correct in all material respects on and as of such date as if
made on and as of such date except (i) to the extent that such
representations and warranties expressly relate to an earlier date, and
(ii) for changes in the Schedules hereto reflecting transactions permitted
by this Agreement. Notwithstanding anything contained in this Agreement to
the contrary, no Bank shall have any obligation to extend the Termination
Date, and each Bank may at its option, unconditionally and without cause,
decline to extend the Termination Date.
(2) If the Termination Date shall have been extended in accordance with
Section 2.6(1), all references herein to the "TERMINATION DATE" shall
refer to the Termination Date as so extended.
(3) If any Bank shall determine not to extend the Termination Date as
requested by any Extension Notice given by the Company pursuant to Section
2.6(1), the Commitment of such Bank shall terminate on the Termination
Date without giving any effect to such proposed extension, and the Company
shall on such date pay to the Administrative Agent, for the account of
such Bank, the amount (including any accrued but unpaid interest) of such
Bank's Accommodations Outstanding, together with any amounts payable to
such Bank pursuant to Section 2.15 and any fees or other amounts owing to
such Bank under this Agreement; provided that if the Company has replaced
such Non-Extending Bank pursuant to Section 2.6(4) below then the
provisions of
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such Section shall apply. The Aggregate Commitment shall be reduced by the
amount of the Commitment of such Non-Extending Bank to the extent the
Commitment of such Non-Extending Bank has not been transferred to one or
more Continuing Banks pursuant to Section 2.6(4) below.
(4) A Non-Extending Bank shall be obligated, at the request of the Company and
subject to payment by the Company to the Administrative Agent for the
account of such Non-Extending Bank of the amount (including any accrued
but unpaid interest) of such Bank's Accommodations Outstanding, together
with any amounts payable to such Bank pursuant to Section 2.15 and any
fees or other amounts owing to such Bank under this Agreement, to transfer
without recourse, representation, warranty (other than good title to its
Accommodations Outstanding) or expense to such Non-Extending Bank, at any
time prior to the Termination Date applicable to such Non-Extending Bank,
all of its rights and obligations hereunder to another financial
institution or group of financial institutions nominated by the Company
and willing to participate in the facility in the place of such
Non-Extending Bank; provided that, if such transferee is not a Bank, such
transferee(s) satisfies all the requirements of this Agreement and the
Administrative Agent shall have consented to such transfer, which consent
shall not be unreasonably withheld. Each such transferee shall become a
Continuing Bank hereunder in replacement of the Non-Extending Bank and
shall enjoy all rights and assume all obligations on the part of the Banks
set forth in this Agreement. Simultaneously with such transfer, each such
transferee shall execute and deliver to the Administrative Agent a written
agreement assuming all obligations of the Non-Extending Bank it is
replacing set forth in this Agreement, which agreement shall be reasonably
satisfactory in form and substance to the Administrative Agent.
(5) If the Termination Date shall have been extended in respect of Continuing
Banks in accordance with Section 2.6(1), any Notice of Borrowing pursuant
to Section 2.2 specifying a Borrowing Date occurring after the Termination
Date applicable to a Non-Extending Bank shall (i) have no effect in
respect of such Non-Extending Bank, and (ii) not specify a requested
aggregate principal amount exceeding the Aggregate Available Commitment
(calculated on the basis of the Commitments of the Continuing Banks).
SECTION 2.7 TERMINATION OR REDUCTION OF COMMITMENTS.
The Company shall have the right, upon not less than three Business Days'
notice to the Administrative Agent, to terminate the Aggregate Commitment or,
from time to time, to reduce the amount of the Aggregate Commitment, provided
that no such termination or reduction shall be permitted if, after giving effect
thereto and to any prepayments made in respect of the Accommodations Outstanding
on
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the effective date of such termination or reduction, the aggregate amount of
Accommodations Outstanding would exceed the Aggregate Commitment then in effect.
Any such reduction shall be in an amount equal to $10,000,000 or a whole
multiple of $1,000,000 in excess thereof and shall reduce permanently the
Commitments then in effect.
SECTION 2.8 OPTIONAL PREPAYMENTS OF ACCOMMODATIONS.
The Company may at any time and from time to time prepay any principal
amount of Accommodations Outstanding in whole or in part, without premium or
penalty, upon at least two Business Days' irrevocable notice to the
Administrative Agent, specifying the date and amount of prepayment. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with, in the case of a Canadian Prime Rate
Loan, accrued interest to such date on the amount prepaid. Partial prepayments
shall be in an aggregate principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Any amount prepaid in respect of a Bankers'
Acceptance, Draft or BA Equivalent Note will be held by the Administrative Agent
in an interest bearing account (such interest being for the account of the
Borrower) on behalf of the Banks to fund such Bankers' Acceptance, Draft or BA
Equivalent Note upon their maturity.
SECTION 2.9 APPLICABLE INTEREST RATE MARGINS, FACILITY FEE RATE AND UTILIZATION
FEE.
The Applicable Canadian Prime Margin, the Applicable BA Margin, the
Applicable Facility Fee Rate and the Applicable Utilization Fee Rate (the
Applicable Canadian Prime Margin, the Applicable BA Margin, the Applicable
Facility Fee Rate and the Applicable Utilization Fee Rate, individually or
collectively, the "APPLICABLE MARGIN") shall be equal to the percentage per
annum set forth below:
Applicable Canadian Prime Margin .00%
Applicable BA Margin .23%
Applicable Facility Fee Rate .07%
Applicable Utilization Fee Rate .05%
SECTION 2.10 INTEREST RATES AND PAYMENT DATES.
(1) Each Canadian Prime Rate Loan shall bear interest for each day during
which such Canadian Prime Rate Loan is outstanding at a rate per annum
equal to the Canadian Prime Rate plus the Applicable Canadian Prime
Margin.
(2) If all or a portion of (i) the principal amount of any Accommodation
Outstanding or (ii) any interest payable thereon, any fee or any other
amount payable pursuant to the terms of this Agreement (other than
attorneys' fees
-15-
incurred in connection with the enforcement of the terms hereof) shall not
be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
which is the Canadian Prime Rate plus 2%, in each case from the date of
such non-payment until such amount is paid in full (after as well as
before judgment).
(3) Interest on each Canadian Prime Rate Loan shall be calculated daily and
payable in arrears on each Interest Payment Date applicable to such
Canadian Prime Rate Loan, the Maturity Date and upon any prepayment of
such Canadian Prime Rate Loan, provided that interest accruing pursuant to
Section 2.10(2) shall be payable on demand.
SECTION 2.11 COMPUTATION OF INTEREST AND FEES.
(1) Interest on Canadian Prime Rate Loans and all fees shall be calculated on
the basis of a 365 (or 366, as the case may be) day year for the actual
days elapsed. Any change in the interest rate on a Canadian Prime Rate
Loan resulting from a change in the Canadian Prime Rate shall become
effective as of the opening of business on the day on which such change in
the Canadian Prime Rate is announced. Notwithstanding anything to the
contrary in this Agreement, interest paid or becoming due hereunder shall
in no event exceed the maximum rate permitted by applicable law.
(2) For purposes of the INTEREST ACT (Canada), (i) whenever any interest under
this Agreement is calculated using a rate based on a year of 365 days,
such rate determined pursuant to such calculation, when expressed as an
annual rate, is equivalent to (x) the applicable rate based on a year of
365 days, (y) multiplied by the actual number of days in the calendar year
in which the period for which such interest or fee is payable (or
compounded) ends, and (z) divided by 365, (ii) the principle of deemed
reinvestment of interest does not apply to any interest calculation under
this Agreement; and (iii) the rates of interest stipulated in this
Agreement are intended to be nominal rates and not effective rates or
yields.
(3) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Banks in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative
Agent in determining any interest rate pursuant to Section 2.10.
SECTION 2.12 PRO RATA TREATMENT AND PAYMENTS.
(1) Each Accommodation made by the Banks hereunder, each payment by the
Company on account of any fee hereunder and, except as contemplated by
-16-
Section 2.6(3), Section 2.16, Section 2.18, and Section 2.19 any reduction
of the Commitments of the Banks shall be made pro rata according to the
respective Commitment Percentages of the Banks. Except as contemplated by
Section 2.6(3), Section 2.16, Section 2.18 and Section 2.19 each payment
(including each prepayment) by the Company on account of Accommodations
Outstanding shall be made pro rata according to the respective
Accommodations Outstanding then held by the Banks. Each Bank agrees that
in computing such Bank's portion of any Accommodation to be made
hereunder, the Administrative Agent may, in its discretion, round each
Bank's percentage of such Accommodation to the next higher or lower whole
dollar amount. All payments (including prepayments) to be made by the
Company hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made
prior to 12:00 Noon, Toronto time, on the due date thereof to the
Administrative Agent, for the account of the Banks, at the Administrative
Agent's office specified in Section 10.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments
to the Lending Installation of the Banks promptly upon receipt in like
funds as received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension.
(2) Unless the Administrative Agent shall have been notified in writing by any
Bank prior to the date of any Accommodation that such Bank will not make
the amount that would constitute its Commitment Percentage of the
Accommodation on such date available to the Administrative Agent, the
Administrative Agent may assume that such Bank has made such amount
available to the Administrative Agent on such date, and the Administrative
Agent may, in reliance upon such assumption, make available to the Company
a corresponding amount. If such amount is made available to the
Administrative Agent on a date after the date of any Accommodation, such
Bank shall pay to the Administrative Agent on demand an amount equal to
the product of (i) the rate equal to the cost of funds of the
Administrative Agent, times (ii) the amount of such Bank's Commitment
Percentage of such Accommodation, times (iii) a fraction the numerator of
which is the number of days that elapse from and including the date of any
Accommodation to the date on which such Bank's Commitment Percentage of
such Accommodation shall have become immediately available to the
Administrative Agent and the denominator of which is 365. A certificate of
the Administrative Agent submitted to any Bank with respect to any amounts
owing under this Section 2.12(2) shall be conclusive in the absence of
manifest error. If such Bank's Commitment Percentage of such Accommodation
is not in fact made
-17-
available to the Administrative Agent by such Bank within three Business
Days of the date of such Accommodation, the Administrative Agent shall
notify the Company of such Bank's failure to fund, and shall be entitled
to recover such amount with interest thereon at the rate per annum
applicable to Canadian Prime Rate Loans hereunder, on demand, from the
Company.
SECTION 2.13 REQUIREMENTS OF LAW.
(1) In the event that any Bank shall have determined that any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Bank or the Lending Installation
of such Bank or any corporation controlling such Bank with any request or
directive regarding capital adequacy (whether or not having the force of
law) from any Governmental Authority, in each case, made subsequent to the
date hereof, does or shall have the effect of reducing the rate of return
on such Bank's, such Lending Installation's or such corporation's capital
as a consequence of its obligations hereunder to a level below that which
such Bank, such Lending Installation or such corporation could have
achieved but for such change or compliance (taking into consideration such
Bank's, such Lending Installation's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, after submission by such Bank to the
Company of a written request therefor, the Company shall pay to such Bank
within 90 days after demand such additional amount or amounts as will
compensate such Bank for such reduction. Each such request shall be
accompanied by such information in respect of the basis for the claim made
thereby and the method of computation thereof as such Bank shall at the
time customarily provide to other borrowers deemed by it to be similarly
situated. This covenant shall survive the termination of this Agreement
and the payment of all other amounts payable hereunder.
(2) Each Bank, through the Administrative Agent, will promptly notify the
Company of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this
Section. Notwithstanding the foregoing, no Bank shall be entitled to any
compensation described in this Section unless, at the time it requests
such compensation, it is the policy or general practice of such Bank to
request compensation for comparable costs in similar circumstances under
comparable provisions of other credit agreements for comparable customers
(as determined by such Bank) unless specific facts or circumstances
applicable to the Company or the transactions contemplated by this
Agreement would alter such policy or general practice. If any Bank fails
to give the notice described in this Section 2.13(2) within 90 days after
it obtains such actual knowledge of the event required to be described in
such notice,
-18-
such Bank shall, with respect to any compensation that would otherwise be
owing to such Bank under this Section 2.13, only be entitled to payment
for increased costs incurred from and after the date that such Bank does
give such notice. If the Company shall reimburse any Bank pursuant to this
Section for any cost and such Bank shall subsequently receive a refund in
respect thereof, such Bank shall so notify the Company and, upon its
request, will pay to the Company the portion of such refund that such Bank
shall determine in good faith to be allocable to the costs so reimbursed.
SECTION 2.14 TAXES.
(1) All payments made by the Company under this Agreement shall be made free
and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding, in the case of the Administrative Agent and each
Bank, taxes based on or measured by net income imposed on the
Administrative Agent or such Bank, as the case may be, as a result of a
present or former connection between the jurisdiction of the government or
taxing authority imposing such tax and the Administrative Agent or such
Bank (excluding a connection arising solely from the Administrative Agent
or such Bank having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement) or any political
subdivision or taxing authority thereof or therein (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions and withholdings
being hereinafter called "TAXES"). If any Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Bank
hereunder, the amounts so payable to the Administrative Agent or such Bank
shall be increased to the extent necessary to yield to the Administrative
Agent or such Bank (after payment of all Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Taxes are payable by the Company, promptly
thereafter the Company shall send to the Administrative Agent for its own
account or for the account of such Bank, as the case may be, a certified
copy of an original official receipt received by the Company showing
payment thereof. If such evidence of payment is unavailable, other
evidence of such payment, satisfactory to the Administrative Agent, shall
be provided by the Company. If the Company fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required documentary
evidence, the Company shall indemnify the Administrative Agent and the
Banks for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Bank as a result of any such
failure.
-19-
(2) Each Bank represents and warrants to the Company that under currently
applicable law and treaties no Taxes will be required to be withheld by
the Company with respect to any payments to be made to such Bank
hereunder.
(3) If any Bank (or Transferee) or the Administrative Agent shall become aware
that it is entitled to receive a refund or credit (such credit to include
any increase in any foreign tax credit) as a result of Taxes (including
any penalties or interest with respect thereto) as to which it has been
indemnified by the Company pursuant to this Section 2.14, it shall
promptly notify the Company of the availability of such refund or credit
and shall, within 30 days after receipt of a request by the Company, apply
for such refund or credit at the Company's expense, and in the case of any
application for such refund or credit by the Company, shall, if legally
able to do so, deliver to the Company such certificates, forms or other
documentation as may be reasonably necessary to assist the Company in such
application. If any Bank (or Transferee) or the Administrative Agent
receives a refund or credit (such credit to include any increase in any
foreign tax credit) in respect to any Taxes as to which it has been
indemnified by the Company pursuant to this Section 2.14, it shall
promptly notify the Company of such refund or credit and shall, within 60
days after receipt of such refund or the benefit of such credit (such
benefit to include any reduction of the taxes for which any Bank (or
Transferee) or the Administrative Agent would otherwise be liable due to
any increase in any foreign tax credit available to such Bank (or
Transferee) or the Administrative Agent), repay the amount of such refund
or benefit of such credit (with respect to the credit, as determined by
the Bank, Transferee or Administrative Agent in its sole, reasonable
judgment) to the Company (to the extent of amounts that have been paid by
the Company under this Section 2.14 with respect to Taxes giving rise to
such refund or credit), plus any interest received with respect thereto,
net of all reasonable out-of-pocket expenses of such Bank (or Transferee)
or the Administrative Agent and without interest (other than interest
actually received from the relevant taxing authority or other Governmental
Authority with respect to such refund or credit); provided, however, that
the Company, upon the request of such Bank (or Transferee) or the
Administrative Agent, agrees to return the amount of such refund or
benefit of such credit (plus interest) to such Bank (or Transferee) or the
Administrative Agent in the event such Bank (or Transferee) or the
Administrative Agent is required to repay the amount of such refund or
benefit of such credit to the relevant taxing authority or other
Governmental Authority.
(4) The agreements in this subsection shall survive the termination of this
Agreement and the payment of all other amounts payable hereunder.
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SECTION 2.15 INDEMNITY.
The Company agrees to indemnify each Bank and to hold each Bank harmless
from any loss or expense which such Bank may sustain or incur as a consequence
of a default by the Company in making any prepayment after the Company has given
a notice thereof in accordance with the provisions of this Agreement, including
any such loss or expense arising from the reemployment of funds obtained by it
(or which it has arranged to obtain) or from fees payable to terminate the
deposits from which such funds were obtained (or which it has arranged to
obtain). Nothing in this Section shall be deemed to give the Company any right
to prepay any Accommodation Outstanding, the prepayment of which is otherwise
prohibited pursuant to the terms of this Agreement. This covenant shall survive
the termination of this Agreement and the payment of all other amounts payable
hereunder.
SECTION 2.16 ACTIONS OF BANKS.
Each Bank agrees to use reasonable efforts (including reasonable efforts
to change the Lending Installation for its Accommodations) to avoid or minimize
any amounts which might be payable pursuant to Section 2.13 or Section 2.14;
provided, however, that such efforts shall not cause the imposition on such Bank
of any additional costs or legal or regulatory burdens deemed by such Bank to be
material. In the event that such reasonable efforts are insufficient to avoid
all amounts that might be payable pursuant to Section 2.13 or Section 2.14, then
the Company may remove any such Bank pursuant to Section 2.18 or replace any
such Bank pursuant to Section 2.19.
SECTION 2.17 LENDING INSTALLATIONS.
Each Bank may hold its Accommodations Outstanding at any Lending
Installation selected by it and may change its Lending Installation from time to
time, provided that no such Bank shall be entitled to receive any greater amount
under Section 2.13, Section 2.14, Section 2.15, or Section 10.5 as a result of a
transfer of any such Accommodations Outstanding to a different office of such
Bank than it would be entitled to immediately prior thereto unless such claim
would have arisen even if such transfer had not occurred. All provisions of this
Agreement shall apply to any such Lending Installation. Each Bank may, by
written or telex notice to the Company and the Administrative Agent, designate a
Lending Installation through which the Accommodations will be made by it and for
whose account payments are to be made.
SECTION 2.18 REMOVAL OF BANKS.
The Company shall be permitted, from time to time in its discretion, to
remove Banks from this Agreement and to reduce the Aggregate Commitment;
provided, that (i) the Aggregate Commitment may not be reduced below
$350,000,000 as a result of removal of one or more Banks from this Agreement
-21-
pursuant to this Section, (ii) after giving effect to such removal, no Bank
shall have a Commitment hereunder which exceeds an amount equal to 20% of the
Aggregate Commitment, and (iii) a Bank may not be removed from this Agreement at
any time a Default or an Event of Default exists and remains uncured or unwaived
under this Agreement. If the Company elects to terminate the Commitment of a
Bank, it shall give not less than 30 days written notice to the Administrative
Agent and such Bank. On the effective date of such termination, the Company
shall pay to the Administrative Agent, for the account of such Bank, in
immediately available funds, an amount equal to all Accommodations Outstanding
and other amounts (including accrued interest and fees) owing to such Bank plus
the amounts, if any, owing to such Bank under Section 2.13, Section 2.14,
Section 2.15, and Section 10.5. Notwithstanding the removal of any Bank pursuant
to this Section, such Bank shall continue to have all such rights as would
survive the termination of this Agreement under Section 2.13, Section 2.14,
Section 2.15 and Section 10.5.
SECTION 2.19 REPLACEMENT OF BANKS.
In the event that any Bank (a "NOTIFYING BANK") (i) shall demand payment
by the Company of any amount pursuant to Section 2.13 or Section 2.14, (ii)
shall have failed to make available an Accommodation on the date on which it was
obligated to do so, or (iii) shall have failed to consent to any waiver,
amendment or modification of this Agreement that has been consented to by the
Required Banks, the Company may, upon notice to such Notifying Bank and the
Administrative Agent, nominate a new financial institution or group of financial
institutions willing to participate in the facility in the place of such
Notifying Bank ("REPLACEMENT BANK"). Upon receipt of such notice from the
Company and upon the consent of the Administrative Agent as to the Replacement
Bank, which consent shall not be unreasonably withheld, such Notifying Bank
shall be obligated to transfer without recourse, representation, warranty (other
than that it has not in any way transferred, assigned, encumbered, sold or
conveyed its rights under its Accommodations) or expense to such Notifying Bank,
all of its rights (other than rights that would survive the termination of this
Agreement pursuant to Section 2.13, Section 2.14, Section 2.15 and Section 10.5)
and obligations hereunder to the Replacement Bank; provided that the Replacement
Bank satisfies all of the requirements of this Agreement and pays such Notifying
Bank all amounts owing to such Notifying Bank under this Agreement and the
Company pays such Notifying Bank any funding losses incurred pursuant to Section
2.15, if any, as a result of such replacement. This Section 2.19 shall in no way
affect the right of the Company to replace, remove or add a Bank pursuant to any
other provision of this Agreement.
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ARTICLE 3
BANKERS' ACCEPTANCES
SECTION 3.1 ACCEPTANCES AND DRAFTS.
(1) Each Bank severally agrees, on the terms and conditions of this Agreement
and from time to time on any Business Day prior to the Termination Date,
(i) in the case of a Bank which is willing and able to accept Drafts, to
create acceptances ("BANKERS' ACCEPTANCES") by accepting Drafts and to
purchase such Bankers' Acceptances in accordance with Section 3.3(2), and
(ii) in the case of a Bank which is unwilling or unable to accept Drafts,
to purchase completed Drafts (which have not and will not be accepted by
the Bank or any other Bank in accordance with Section 3.3(2)).
(2) Each Drawing shall be in a minimum aggregate Face Amount of $10,000,000
and in an integral multiple of $1,000,000 thereafter and shall consist of
the creation and purchase of Bankers' Acceptances or the purchase of
Drafts on the same day, in each case for the Drawing Purchase Price,
effected or arranged by the Banks in accordance with Section 3.3 and their
respective Bank's Commitment.
(3) If the Administrative Agent determines, in good faith, which determination
shall be final, conclusive and binding upon the Company and the Banks,
that the Bankers' Acceptances to be created and purchased or Drafts to be
purchased on any Drawing (upon a conversion or otherwise) will not be
created and purchased ratably by the Banks in accordance with Section
3.1(2) and Section 3.3(3), then the requested Face Amount of Bankers'
Acceptances and BA Equivalent Notes relating to such Drawing shall be
reduced to such lesser amount as the Administrative Agent determines will
permit such rateable sharing and the amount by which the requested Face
Amount shall have been so reduced shall be converted or continued, as the
case may be, as a Canadian Prime Rate Loan under the Agreement to be made
contemporaneously with the Drawing.
SECTION 3.2 FORM OF DRAFTS.
Each Draft presented by the Company (i) shall be in a minimum amount of
$100,000 and integral multiples of $100,000 thereafter, (ii) shall be dated the
date of the Drawing, and (iii) shall mature and be payable by the Company (in
common with all other Drafts presented in connection with such Drawing) on a
Business Day which occurs approximately 1, 2, 3 or 6 months after the Drawing
Date and on or prior to the Termination Date and which would not, in the opinion
of the Administrative Agent, conflict with the Termination Date.
-23-
SECTION 3.3 PROCEDURE FOR DRAWING.
(1) Each Drawing shall be made on notice (a "DRAWING NOTICE") given by the
Company to the Administrative Agent not later than 10:00 a.m. (Toronto
time) on the Business Day before the Drawing. Each Drawing Notice shall be
in substantially the form of Exhibit F, shall be irrevocable and binding
on the Company and shall specify (i) the Drawing Date; (ii) the aggregate
Face Amount of Drafts to be accepted and purchased (or purchased, as the
case may be), and (iii) the contract maturity date for such Drafts.
(2) Not later than 2:00 p.m. (Toronto time) on an applicable Drawing Date,
each Bank shall (i) complete one or more Drafts in accordance with the
Drawing Notice, accept such Drafts and purchase the Bankers' Acceptances
thereby created for the Drawing Purchase Price, or (ii) complete one or
more Drafts in accordance with the Drawing Notice and purchase such Drafts
for the Drawing Purchase Price. In each case, upon receipt of an amount
equal to the difference between (i) such Drawing Purchase Price, and (ii)
the applicable aggregate Drawing Fee, and upon fulfilment of the
applicable conditions set forth in Article 5, the Administrative Agent
shall make such funds available to the Company in accordance with Article
2.
(3) The Company shall, at the request of a Bank, issue one or more
non-interest bearing promissory notes (each a "BA EQUIVALENT NOTE")
payable on the date of maturity of the unaccepted Draft referred to below,
in such form as such Bank may specify, in a principal amount equal to the
Face Amount of, and in exchange for, any unaccepted Drafts which such Bank
has purchased or has arranged to have purchased in accordance with Section
3.3(2).
(4) Bankers' Acceptances purchased by a Bank hereunder may be held by it for
its own account until the contract maturity date or sold by it at any time
prior thereto in any relevant market therefor in Canada, in such Person's
sole discretion.
SECTION 3.4 PRESIGNED DRAFT FORMS.
(1) To enable the Banks to make Drawings in the manner specified in this
Article 3, the Company shall supply each Bank with such number of Drafts
as such Banks may reasonably request, duly endorsed and executed on behalf
of the Company. Each Bank shall exercise such care in the custody and
safekeeping of Drafts as it would exercise in the custody and safekeeping
of similar property owned by it. Each Bank will, upon request by the
Company, promptly advise the Company of the number and designations, if
any, of the uncompleted Drafts then held by it. The signature of any duly
authorized officer of the Company on a Draft may be mechanically
reproduced in facsimile and Drafts and Bankers' Acceptances bearing such
facsimile
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signature shall be binding upon the Company as if they had been manually
signed by such officers. Notwithstanding that any of the individuals whose
manual or facsimile signature appears on any Draft as one of such officers
may no longer hold office at the date thereof or at the date of its
acceptance by the Bank hereunder or at any time thereafter, any Draft or
Bankers' Acceptance so signed shall be valid and binding upon the Company.
(2) The Company irrevocably appoints each Bank as the attorney of the Company
to (i) sign and endorse for and on behalf and in the name of the Company
as drawer, Drafts drawn on such Bank payable to the order of the Company,
to the order of such Bank or to the order of a clearing house, and (ii) to
fill in the amount, date and maturity date of such Drafts, such acts to be
undertaken by such Bank in accordance with written instructions given to
such Bank by the Company. All Drafts signed or endorsed for and on behalf
of the Company by a Bank in accordance with the written instructions of
the Company shall be binding on the Company, all as if duly executed and
issued by the Company.
SECTION 3.5 PAYMENT, CONVERSION OR RENEWAL OF BANKERS' ACCEPTANCES.
(1) Upon the maturity of a Bankers' Acceptance, Draft or BA Equivalent Note,
the Company may (i) elect to issue a replacement Bankers' Acceptance,
Draft or BA Equivalent Note by giving a Drawing Notice in accordance with
Section 3.3(1), (ii) elect to have all or a portion of the Face Amount of
such Bankers' Acceptance, Draft or BA Equivalent Note converted to a
Canadian Prime Rate Loan, by giving a Notice of Borrowing in accordance
with Section 2.2, or (iii) pay, on or before 10:00 a.m. (Toronto time) on
the maturity date for such Bankers' Acceptance, Draft or BA Equivalent
Note, an amount in Dollars equal to the Face Amount of such Bankers'
Acceptance, Draft or BA Equivalent Note (notwithstanding that a Bank may
be the holder thereof at maturity). Any such payment shall satisfy the
Company's obligations under the Bankers' Acceptance, Draft or BA
Equivalent Note to which it relates and the relevant Bank shall thereafter
be solely responsible for the payment of such Bankers' Acceptances, Drafts
or BA Equivalent Notes.
(2) If the Company fails to pay any Bankers' Acceptance when due, or to issue
a replacement Bankers' Acceptance, Draft or BA Equivalent Note in the Face
Amount of such Bankers' Acceptance, Draft or BA Equivalent Note pursuant
to Section 3.5(1), the unpaid amount due and payable in respect thereof
shall be converted, as of such date, and without any necessity for the
Company to give a Notice of Borrowing in accordance with Section 2.2, to a
Canadian Prime Rate Loan made by the Banks ratably under this Agreement
and shall bear interest calculated and payable as provided in Section
2.11.
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SECTION 3.6 CIRCUMSTANCES MAKING BANKERS' ACCEPTANCES UNAVAILABLE.
If any Bank determines in good faith, which determination shall be final,
conclusive and binding upon the Company, and notifies the Company that, by
reason of circumstances affecting the money market, there is no market for
Bankers' Acceptances, then:
(a) The right of the Company to request a Drawing from such Bank shall
be suspended until such Bank determines that the circumstances
causing such suspension no longer exist and such Bank so notifies
the Company;
(b) The portion of any Drawing Notice which is outstanding in respect of
such Bank's PRO RATA portion of any Drawing shall be cancelled and
such Bank's portion of the Drawing requested therein shall not be
made; and
(c) Such Bank shall promptly notify the Administrative Agent and the
Company of the suspension of the Company's right to request a
Drawing from such Bank and of the termination of any such
suspension.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 REPRESENTATIONS AND WARRANTIES.
To induce the Banks to enter into this Agreement and to make the
Accommodations, the Company hereby represents and warrants to the Administrative
Agent and each Bank that:
(a) CORPORATE EXISTENCE; COMPLIANCE WITH LAW. The Company (i) is duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, and (ii) has the power and
authority to conduct the business in which it is currently engaged.
(b) CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Company
has the corporate power and authority to make, deliver and perform
this Agreement and to borrow hereunder and has taken all necessary
corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution,
delivery and performance of this Agreement. No consent or
authorization of, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required on the part
of the Company in connection with the borrowings hereunder or with
the
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execution, delivery, performance, validity or enforceability of this
Agreement. This Agreement has been duly executed and delivered on
behalf of the Company. This Agreement constitutes a legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).
(c) NO LEGAL BAR. The execution, delivery and performance of this
Agreement, the borrowings hereunder and the use of the proceeds
thereof will not violate any Requirement of Law or material
Contractual Obligation of the Company and will not result in, or
require, the creation or imposition of any Lien on any of its
material properties or revenues pursuant to any such Requirement of
Law or material Contractual Obligation.
(d) NO MATERIAL LITIGATION.
(i) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the
knowledge of the Company, threatened by or against the Company
or any of its properties or revenues in any case that involves
this Agreement, the execution, delivery and performance of
this Agreement or the borrowings hereunder.
(ii) No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the
knowledge of the Company, threatened by or against the Company
or its properties or revenues which could reasonably be
expected to result in a violation of the Net Worth Covenant.
(e) NO DEFAULT.
(i) The Company is not in default under or with respect to any of
its Contractual Obligations in any respect which could
reasonably be expected to result in a violation of the Net
Worth Covenant.
(ii) No Default or Event of Default has occurred and is continuing.
(f) PURPOSE OF ACCOMMODATIONS. The proceeds of the Accommodations shall
be used by the Company for general corporate purposes, including
commercial paper back-up.
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ARTICLE 5
CONDITIONS PRECEDENT
SECTION 5.1 CONDITIONS TO INITIAL ACCOMMODATIONS.
The agreement of each Bank to make the initial Accommodations requested to
be made by it is subject to the satisfaction of the following conditions
precedent:
(a) CREDIT AGREEMENT. The Administrative Agent shall have received this
Agreement, executed and delivered by a duly authorized officer of
the Company, with a counterpart for each Bank.
(b) GUARANTY. The Administrative Agent shall have received the Guaranty
executed and delivered by a duly authorized officer of the
Guarantor.
(c) CORPORATE PROCEEDINGS OF THE COMPANY. The Administrative Agent shall
have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of the Company
authorizing (i) the execution, delivery and performance of this
Agreement, and (ii) the borrowings contemplated hereunder, certified
by the Secretary or an Assistant Secretary of the Company as of the
Closing Date pursuant to a certificate substantially in the form of
Exhibit C-2, which certificate shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded.
(d) CORPORATE PROCEEDINGS OF THE GUARANTOR. The Administrative Agent
shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the
Administrative Agent, of the Executive Committee of the Board of
Directors of the Guarantor authorizing the execution, delivery and
performance of the Guaranty, certified by the Secretary or an
Assistant Secretary of the Guarantor as of the Closing Date pursuant
to a certificate substantially in the form of Exhibit C-3, which
certificate shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(e) CORPORATE DOCUMENTS. The Administrative Agent shall have received,
with a counterpart for each Bank, true and complete copies of the
certificate of incorporation and by-laws of each of the Company and
the Guarantor, certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary of
the Company or the Guarantor, as the case may be.
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(f) NO CHANGE. Since December 31, 1998 and until the date of this
Agreement, there shall have been no development or event which has
had or could reasonably be expected to have a Material Adverse
Effect and the Administrative Agent shall have received an officer's
certificate of the Guarantor to such effect.
(g) LEGAL OPINIONS. The Administrative Agent shall have received, with a
counterpart for each Bank, (i) the executed legal opinion of Blake,
Xxxxxxx & Xxxxxxx LLP, counsel to the Company, substantially in the
form of Exhibit A-1, (ii) the executed legal opinion of the general
counsel of the Guarantor, substantially in the form of Exhibit A-2,
and (iii) the executed legal opinion of Stikeman Elliott, counsel to
the Administrative Agent, substantially in the form of Exhibit A-3.
(h) CERTIFICATES. The Administrative Agent shall have received, with a
counterpart for each Bank, an officer's certificate of the chief
financial officer, treasurer or controller of each of the Company
and the Guarantor, substantially in the form of Exhibit C-1, and a
certificate of incumbency of each of the Company and the Guarantor,
substantially in the form of Exhibit D.
(i) EXISTING CREDIT AGREEMENT. The Administrative Agent shall have
received evidence satisfactory to it that the Existing Credit
Agreement has been terminated and all amounts, if any, owing by the
borrowers thereunder have been paid in full.
(j) TRANSFER INSTRUCTIONS. The Administrative Agent shall have received
written money transfer instructions addressed to the Administrative
Agent and signed by a duly authorized officer, together with such
other related money transfer authorizations as the Administrative
Agent may have reasonably requested.
SECTION 5.2 CONDITIONS TO EACH ACCOMMODATION.
(1) The agreement of each Bank to make any Accommodation requested to be made
by it on any date (including, without limitation, its initial
Accommodation) is subject to the satisfaction of the following conditions
precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by the Company in Section 4.1 of this Agreement
shall be true and correct in all material respects on and as of such
date as if made on and as of such date except (i) to the extent such
representations and warranties expressly relate to an earlier date,
and (ii) for changes in the Schedules hereto reflecting transactions
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permitted by this Agreement. Each of the representations and
warranties made by the Guarantor in the Guaranty shall be true and
correct in all material respects on and as of such date as if made
on and as of such date except to the extent such representations and
warranties expressly relate to an earlier date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the
Accommodations requested to be made on such date.
(c) BORROWING NOTICE; DRAWING NOTICE. The Administrative Agent shall
have received a Notice of Borrowing or Drawing Notice, as the case
may be, from the Company.
(2) Each request by the Company for the making of an Accommodation hereunder
shall constitute a representation and warranty by the Company as of the
date of making such Accommodation that the conditions contained in this
Section 5.2 have been satisfied.
ARTICLE 6
AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long any Commitment shall remain in
effect or any amount owing hereunder shall be unpaid, the Company shall:
SECTION 6.1 PAYMENT OF OBLIGATIONS.
Pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its obligations of whatever nature,
except where the amount or validity thereof is currently being contested in good
faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Company, or except to the
extent that the failure to pay, discharge or otherwise satisfy the same could
not, in the aggregate, reasonably be expected to result in a violation of the
Net Worth Covenant.
SECTION 6.2 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
Preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and franchises
material to the normal conduct of its significant businesses, provided, however,
that notwithstanding this Section 6.2, the Company may (i) discontinue any of
its businesses that are no longer deemed advantageous to it (such determination
to be in the sole and absolute discretion of the Company), (ii) sell or dispose
of any assets, subsidiaries or the capital stock thereof and (iii) consolidate
with any other
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corporation or accept a merger of any other corporation into the Company,
provided that the surviving corporation of the merger shall be an entity
organized under the laws of Canada or any province thereof and shall expressly
assume the obligations of the Company under this Agreement and expressly agree
to be bound by all other provisions applicable to the Company under this
Agreement. The Company shall comply in all material respects with all
Requirements of Law, except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to result in a violation of the
Net Worth Covenant.
SECTION 6.3 NOTICES.
(1) Promptly give notice to the Administrative Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any litigation, investigation or proceeding affecting the Company
which could reasonably be expected to result in a violation of the
Net Worth Covenant;
(c) as soon as possible and in any event within 30 days after receipt by
the Company, a copy of (i) any notice or claim to the effect that
the Company or any Subsidiary is or may be liable to any Person as a
result of the release by the Company, any of its Subsidiaries, or
any other Person of any toxic or hazardous waste or substance into
the environment, and (ii) any notice alleging any violation of any
federal, provincial or local environmental, health or safety law or
regulation by the Company or any Subsidiary, which could reasonably
be expected to result in a claim, liability or loss that will, in
the case of clauses (i) or (ii), when aggregated with the effect of
any failure by the Company to (x) maintain and preserve all property
material to the conduct of its business, (y) keep such property in
good repair, working order and condition and (z) from time to time
make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto, result in a
violation of the Net Worth Covenant; and
(d) a consolidation or merger of any corporation into the Company or the
transfer or assignment by the Company of any of its rights or
obligations under this Agreement to any Person.
(2) Each notice pursuant to this Section 6.3 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Company proposes to take
with respect thereto.
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SECTION 6.4 STATUS OF OBLIGATIONS.
Ensure that its obligations under this Agreement shall at all times be
direct and general obligations of the Company and shall at all times rank at
least pari passu in all respects with all other outstanding unsecured and
unsubordinated indebtedness of the Company.
SECTION 6.5 PAYMENT OF TAXES.
Pay and discharge promptly when due all taxes, assessments and
governmental charges or levies the amounts of which are material to the
business, assets, operations, prospects or condition, financial or otherwise, of
the Company and the Subsidiaries taken as a whole, imposed upon it or upon its
income or profits or in respect of its property, before the same shall become
delinquent or in default; provided, however, that such payment and discharge
shall not be required with respect to any such tax, assessment, charge, or levy
so long as the validity or amount thereof shall be contested in good faith by
appropriate actions or proceedings and the Company shall have set aside on its
books appropriate reserves with respect thereto.
SECTION 6.6 USE OF PROCEEDS.
Use, and cause each Subsidiary to use, the proceeds of Accommodations for
general corporate purposes, including commercial paper back-up.
ARTICLE 7
NEGATIVE COVENANTS
The Company hereby agrees that, so long as any Commitment shall remain in
effect or any amount owing hereunder shall be unpaid, the Company shall not:
SECTION 7.1 NEGATIVE PLEDGE.
(1) (i) Create, incur or suffer to exist any Lien upon any of its property or
assets to secure indebtedness for money borrowed, incurred, issued,
assumed or guaranteed by the Company or (ii) create any Lien upon any of
its property or assets to secure any indebtedness or other obligations of
any Person if such Lien is a Lien created by any action of the Company
(including any grant by the Company of any Lien pursuant to a written
instrument or by the pledge by the Company of property, but excluding
Liens arising by operation of law), without, in the case of any Lien
described in the foregoing clauses (i) and (ii), thereby expressly
securing the due and punctual payment of the principal of and interest on
the Accommodations Outstanding and all other amounts payable by the
Company hereunder equally and ratably with any and all other obligations
and indebtedness secured by such Lien, so long as
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any such other obligations and indebtedness shall be so secured; provided,
however, that this restriction shall not prohibit or otherwise restrict:
(a) the Company from creating, incurring or suffering to exist upon any
of its property or assets any Lien in favor of any subsidiary of the
Company;
(b) the Company (i) from creating, incurring or suffering to exist a
purchase money Lien upon any such property, assets, capital stock or
indebtedness acquired by the Company prior to, at the time of, or
within one year after (A) in the case of physical property or
assets, the later of the acquisition, completion of construction
(including any improvements on existing property) or commencement of
commercial operation of such property or (B) in the case of shares
of capital stock, indebtedness or other property or assets, the
acquisition of such shares of capital stock, indebtedness, property
or assets, (ii) from acquiring property or assets subject to Liens
existing thereon at the date of acquisition thereof, whether or not
the indebtedness secured by any such Lien is assumed or guaranteed
by the Company, or (iii) from creating, incurring or suffering to
exist Liens upon any property of any Person, which Liens exist at
the time any such Person is merged with or into or consolidated with
the Company (or becomes a subsidiary of the Company) or which Liens
exist at the time of a sale or transfer of the properties of any
such Person as an entirety or substantially as an entirety to the
Company;
(c) the Company from creating, incurring or suffering to exist upon any
of its property or assets Liens in favor of Canada or any province
thereof, or any agency, department or other instrumentality thereof,
to secure progress, advance or other payments pursuant to any
contract or provision of any statute (including maintaining
self-insurance or participating in any fund in connection with
worker's compensation, disability benefits, unemployment insurance,
old age pensions or other types of social benefits, or joining in
any other provisions or benefits available to companies
participating in any such arrangements);
(d) the Company from creating, incurring or suffering to exist upon any
of its property or assets Liens securing the performance of letters
of credit, bids, tenders, sales contracts, purchase agreements,
repurchase agreements, reverse repurchase agreements, bankers'
acceptances (other than Bankers' Acceptances), leases, surety and
performance bonds, and other similar obligations incurred in the
ordinary course of business;
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(e) the Company from creating, incurring or suffering to exist Liens
upon any real property acquired or constructed by the Company
primarily for use in the conduct of its business;
(f) the Company from entering into any arrangement with any Person
providing for the leasing by the Company of any property or assets,
which property or assets have been or will be sold or transferred by
the Company to such Person with the intention that such property or
assets will be leased back to the Company, if the obligations in
respect of such lease would not be included as liabilities on a
consolidated balance sheet of the Company;
(g) the Company from creating, incurring or suffering to exist upon any
of its property or assets Liens to secure non-recourse debt in
connection with the Company engaging in any leveraged or
single-investor or other lease transactions, whether (in the case of
Liens on or relating to leases or groups of leases or the particular
properties subject thereto) such Liens are on the particular
properties subject to any leases involved in any of such
transactions and/or the rental or other payments or rights under
such leases or, in the case of any group of related or unrelated
leases, on the properties subject to the leases comprising such
group and/or on the rental or other payments or rights under such
leases, or on any direct or indirect interest therein, and whether
(in any case) (i) such Liens are created prior to, at the time of,
or at any time after the entering into of such lease transactions
and/or (ii) such leases are in existence prior to, or are entered
into by the Company at the time of or at any time after, the
purchase or other acquisition by the Company of the properties
subject to such leases;
(h) the Company from creating, incurring or suffering to exist (i) other
consensual Liens in the ordinary course of business of the Company
that secure indebtedness that, in accordance with generally accepted
accounting principles, would not be included in total liabilities as
shown on the Company's consolidated balance sheet, or (ii) Liens
created by the Company in connection with any transaction intended
by the Company to be a sale of property or assets of the Company,
provided that such Liens upon any or all of the property or assets
intended to be sold, the income from such property or assets and/or
the proceeds of such property or assets;
(i) the Company from creating, incurring or suffering to exist Liens on
property or assets financed through tax-exempt municipal
obligations, provided that such Liens are only on the property or
assets so financed;
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(j) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any of the
foregoing; provided, however, that any such extension, renewal or
replacement shall be limited to all or a part of the property or
assets (or substitutions therefor) which secured the Lien so
extended, renewed or replaced (plus improvements on such property);
and
(k) the Company from creating, incurring or suffering to exist any other
Lien not otherwise permitted by any of the foregoing clauses (i)
through (ix) above if the aggregate amount of all secured debt of
the Company secured by such Liens would not exceed 5% of the excess
of the Guarantor's consolidated assets over the consolidated
liabilities as shown on the Guarantor's most recent audited
consolidated financial statements in accordance with generally
accepted accounting principles.
(2) For the purposes of this Section 7.1, any contract by which title is
retained as security (whether by lease, purchase, title retention
agreement or otherwise) for the payment of a purchase price shall be
deemed to be a purchase money Lien. Nothing in this Section 7.1 shall
apply to any Lien of any kind upon any of the properties of any character
of the Company existing on the date of execution and delivery of this
Agreement.
(3) Nothing contained in this Section 7.1, or elsewhere in this Agreement
shall prevent or be deemed to prohibit the creation, assumption or
guaranty by the Company of any indebtedness not secured by a Lien or the
issuance by the Company of any debentures, notes or other evidences of
indebtedness not secured by a Lien, whether in the ordinary course of
business or otherwise.
SECTION 7.2 ASSIGNMENT
Assign or transfer any of its rights or obligations under this Agreement
to any Person unless (i) such Person is a corporation or other entity organized
under the laws of Canada or any province thereof which expressly assumes the
obligations of the Company in respect of the due and punctual performance and
observance of all of the covenants and conditions of this Agreement to be
performed or observed by the Company by one or more agreements, reasonably
satisfactory in form to the Administrative Agent executed and delivered by such
Person in favour of the Administrative Agent, (ii) the Administrative Agent
shall have received a guarantee of the obligations of such Person in the form of
the Guaranty MUTATIS MUTANDIS, and (iii) the Administrative Agent shall have
received such certificates of corporate officers of such Person and such
opinions of legal counsel to such Person, the Guarantor and the Administrative
Agent in form satisfactory to the Administrative Agent in respect of such
assignment and assumption. Upon completion of such
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assignment and assumption, the assignor shall automatically and without further
action on the part of any party be released from its obligations as a borrower
hereunder and shall no longer be a party hereto.
ARTICLE 8
EVENTS OF DEFAULT
SECTION 8.1 EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall (i) fail to pay any amount of the Accommodations
Outstanding when due in accordance with the terms hereof; (ii) fail
to pay any interest, any Utilization Fee or any Facility Fee within
five Business Days after any such interest or fee becomes due in
accordance with the terms hereof; or (iii) fail to pay any expenses
or other amounts payable under this Agreement to the Administrative
Agent or any Bank within fifteen days after such expenses or other
amounts become due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by the Company
herein or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in
any material respect on or as of the date made or deemed made; or
(c) Any representation or warranty made or deemed made by the Guarantor
in the Guaranty shall prove to have been incorrect in any material
respect on or as of the date made; or
(d) The Company shall default in the observance or performance of any
agreement contained in Article 7; or
(e) The Guarantor shall default in the observance or performance of any
agreement contained in Sections 6.1 through 6.3 of the CIT U.S.
Credit Agreement which are incorporated by reference in the Guaranty
pursuant to Section 6 of the Guaranty; or
(f) The Company shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided
in paragraphs (a), (b) and (d) of this Section), and such default
shall continue unremedied for a period of 30 days after notice shall
have been given to the Company by the Administrative Agent; or
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(g) The Guarantor shall default in the observance or performance of any
other agreement contained in the Guaranty (other than as provided in
paragraphs (c) and (e) of this Section), and such default shall
continue unremedied for a period of 30 days after notice shall have
been given to the Guarantor by the Administrative Agent; or
(h) Any event or condition shall occur which results in the acceleration
of the maturity of any Indebtedness of the Guarantor in an aggregate
principal amount equal to or greater than U.S. $100,000,000; or the
Guarantor shall not make any liquidation or termination payment or
payments in an aggregate amount equal to or greater than U.S.
$100,000,000 when it becomes due (any applicable grace period having
expired) under one or more Hedging Agreements; the Guarantor shall
not pay the principal of or interest on any Indebtedness with
respect to Indebtedness in an aggregate principal amount in excess
of U.S. $100,000,000 when it becomes due and beyond any period of
grace with respect thereto; or
(i) (i) The Company or the Guarantor shall commence any case, proceeding
or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its
assets, or the Company or the Guarantor shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Company or the Guarantor any case, proceeding
or other action of a nature referred to in clause (i) above which
(A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of 60 days; or (iii) there shall be
commenced against the Company or the Guarantor any case, proceeding
or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; (iv) the Company or the Guarantor shall take any
action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above;
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or (v) the Company or the Guarantor shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts
as they become due; or
(j) One or more judgments or decrees shall be entered against the
Company or the Guarantor involving in the aggregate a liability (not
paid or fully covered by insurance) of U.S. $100,000,000 or more and
such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 90 days from the entry
thereof; or
(k) If at any time the Company shall become liable for remediation
and/or environmental compliance expenses and/or fines, penalties or
other charges which, in the aggregate, could reasonably be expected
to result in a violation of the Net Worth Covenant; or
(l) The Guaranty shall cease, for any reason (other than the express
written release thereof by the Banks), to be in full force and
effect, or the Guarantor shall so assert in writing.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect to the Company,
automatically the Commitments shall immediately terminate and the Accommodations
Outstanding (with accrued interest thereon) and all other amounts owing under
this Agreement shall immediately become due and payable, and (B) if such event
is any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Banks, the Administrative Agent may,
or upon the request of the Required Banks the Administrative Agent shall, by
notice to the Company declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii) with the consent
of the Required Banks, the Administrative Agent may, or upon the request of the
Required Banks the Administrative Agent shall, by notice of default to the
Company, declare the Accommodations Outstanding (with accrued interest thereon)
and all other amounts owing under this Agreement to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
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ARTICLE 9
THE AGENTS
SECTION 9.1 APPOINTMENT.
Each Bank hereby designates and appoints RBC as the Administrative Agent
of such Bank under this Agreement, and each such Bank authorizes RBC as the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent. The Syndication Agents, in their capacities as such, shall
not have any duties or responsibilities hereunder nor any fiduciary relationship
with any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Syndication Agents in their capacities as such.
SECTION 9.2 DELEGATION OF DUTIES.
The Administrative Agent may execute any of its duties under this
Agreement by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
SECTION 9.3 EXCULPATORY PROVISIONS.
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or wilful misconduct) or (ii) responsible in any manner to any of the
Banks for any recitals, statements, representations or warranties made by the
Company or any officer thereof contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or for any failure of the Company to perform
its obligations hereunder or thereunder. The Administrative Agent shall not be
under any obligation to any Bank to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Company.
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SECTION 9.4 RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Company), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of the Bank specified in the accounts and records maintained by
the Administrative Agent with respect to any amount owing hereunder as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate and it shall first be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement in accordance with
a request of the Required Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks and all
future holders of the obligations owing by the Company hereunder.
SECTION 9.5 NOTICE OF DEFAULT.
The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Bank or the Company referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "NOTICE OF DEFAULT". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Banks. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Banks; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Banks.
SECTION 9.6 NON-RELIANCE ON ADMINISTRATIVE AGENT.
Each Bank expressly acknowledges that neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of the Company, shall be deemed to constitute any representation or warranty by
the Administrative Agent to
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any Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Company and
made its own decision to make its Accommodations hereunder and enter into this
Agreement. Each Bank also represents that it will, independently and without
reliance upon the Administrative Agent or any other Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly required to be furnished to the Banks by
the Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Company which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
SECTION 9.7 INDEMNIFICATION.
The Banks agree to indemnify the Administrative Agent in its capacity as
such (to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
under this Section (or, if indemnification is sought after the date upon which
the Commitment shall have terminated and the Accommodations Outstanding shall
have been paid in full, ratably in accordance with their Commitment Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Accommodations Outstanding and all other amounts owing hereunder) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement or any documents contemplated by or referred to
herein or the transactions contemplated hereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this Section shall survive
the payment of the Accommodations Outstanding and all other amounts payable
hereunder.
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SECTION 9.8 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY.
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Company as
though the Administrative Agent were not the Administrative Agent hereunder.
With respect to its Accommodations made or renewed by it, the Administrative
Agent shall have the same rights and powers under this Agreement as any Bank and
may exercise the same as though it were not the Administrative Agent, and the
terms "BANK" and "BANKS" shall include the Administrative Agent in its
individual capacity.
SECTION 9.9 SUCCESSOR ADMINISTRATIVE AGENT.
The Administrative Agent may resign as Administrative Agent upon thirty
days' notice to the Banks, and may be removed at any time with or without cause
by the Required Banks. Upon any resignation or removal of the Administrative
Agent, the Required Banks shall appoint from among the Banks a successor
Administrative Agent for the Banks, which successor Administrative Agent shall
be approved by the Company. If no successor Administrative Agent shall have been
so approved by the Company and shall have accepted such appointment within
thirty days after the resignation of the Administrative Agent, then in place or
the Required Banks' removal of the retiring Administrative Agent, such retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent (which shall be a commercial bank or trust company
organized or licensed under the laws of Canada or any province thereof) which
appointment shall be subject to the approval of the Company such approval not to
be unreasonably withheld. Upon the acceptance of any appointment as
Administrative Agent hereunder, such successor Administrative Agent shall
succeed to the rights, powers and duties of the Administrative Agent and the
term "ADMINISTRATIVE AGENT" shall mean such successor agent effective upon its
appointment, and the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or further act or
deed on the part of such former Administrative Agent or any of the parties to
this Agreement or any holders of the obligations owing hereunder. After any
retiring Administrative Agent's resignation or removal as Administrative Agent,
the provisions of this Section shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 AMENDMENTS AND WAIVERS.
Neither this Agreement, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section.
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With the written consent of the Required Banks, the Administrative Agent and the
Company may, from time to time, enter into written amendments, supplements or
modifications hereto for the purpose of adding any provisions to this Agreement
or changing in any manner the rights of the Banks or of the Company hereunder or
thereunder or waiving, on such terms and conditions as the Administrative Agent
may specify in such instrument, any of the requirements of this Agreement or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i) reduce
the amount or extend the maturity of any Accommodation or any installment
thereof, or reduce the rate of interest (other than default interest rates)
thereon or extend the time of payment of interest or fees thereon, or reduce any
fee payable to any Bank hereunder, or change the amount of any Bank's
Commitment, in each case without the written consent of the Bank affected
thereby, or (ii) amend, modify or waive any provision of Section 2.6, or this
Section, amend the definition of Required Banks, change the types of
Accommodations available or consent to the assignment or transfer by the Company
of any of its rights and obligations under this Agreement in each case without
the written consent of all the Banks, (iii) amend, modify or waive any provision
of Article 9 or any reference to the Administrative Agent or the Syndication
Agents in any other provision of this Agreement which alters the duties or
obligations of the Administrative Agent or the Syndication Agents without the
written consent of the then Administrative Agent or the Syndication Agents, as
the case may be. Nothing in this Section 10.1 shall prevent or prohibit the
Administrative Agent, the Company or any Bank from taking any action in
accordance with Section 2.6, Section 2.16, Section 2.18 or Section 2.19
notwithstanding anything contained in this Section 10.1 to the contrary,
including, without limitation (i) preventing a Non-Extending Bank from
transferring its rights and obligations hereunder to a Continuing Bank, (ii)
preventing a Notifying Bank from transferring its rights and obligations to a
Replacement Bank, or (iii) the modification, amendment or supplement of this
Agreement (including, without limitation, Schedule I), in each case solely in
accordance with, or upon a transfer by a Bank of its rights and obligations
hereunder pursuant to, the applicable provisions of Section 2.6, Section 2.16,
Section 2.18, or Section 2.19. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Banks and shall be
binding upon the Company, the Banks, the Agents and all future holders of the
obligations owing hereunder. In the case of any waiver, the Company, the Banks
and the Agents shall be restored to their former position and rights hereunder,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
SECTION 10.2 NOTICES.
All notices, requests and demands to or upon the respective parties hereto
to be effective shall be in writing (including by telecopy, telegraph or telex),
and,
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unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when received, or, in
the case of telegraphic notice, when delivered to the telegraph company, or, in
the case of telex notice, when sent, answer back received, addressed, in the
case of the Company and the Administrative Agent, as follows, and as set forth
on Schedule I in the case of the other parties hereto, or to such other address
as may be hereafter notified by the respective parties hereto and any future
holders of the obligations owing hereunder:
(a) The Administrative Agent:
Royal Bank of Canada
00xx Xxxxx Xxxxx Xxxxx, Xxxxx Bank Plaza
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Manager Agency
Telecopy: (000) 000-0000
(b) The Company:
CIT Financial Ltd.
c/o The CIT Group, Inc.
000 XXX Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx
X.X.X. 00000
Attention: Treasurer
Telecopy: (000) 000-0000
SECTION 10.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Bank, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
SECTION 10.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Accommodations hereunder.
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SECTION 10.5 PAYMENT OF EXPENSES AND TAXES.
The Company agrees (i) to pay or reimburse the Administrative Agent for
all of its reasonable out-of-pocket costs and expenses incurred in connection
with the preparation and execution of, and any amendment, supplement or
modification to, this Agreement and any other documents prepared in connection
herewith, including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent, (ii) to pay or reimburse each Bank and
the Agents for all its reasonable costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement and any such
other documents, including, without limitation, reasonable fees and
disbursements (including the allocated costs and expenses of in-house counsel)
of counsel to the Administrative Agent and to the several Banks, (iii) to pay,
indemnify, and hold each Bank and the Administrative Agent harmless from, any
and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement and any such other documents,
and (iv) to pay, indemnify, and hold each Bank and the Administrative Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, any Accommodation
(including the use of proceeds thereof) and any such other documents (all the
foregoing, collectively, the "INDEMNIFIED LIABILITIES"), provided, that the
Company shall have no obligation hereunder to any Administrative Agent or any
Bank with respect to indemnified liabilities arising from (A) the gross
negligence or wilful misconduct of such Administrative Agent or such Bank, (B)
legal proceedings commenced against any Administrative Agent or any Bank by any
security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such, or
(C) legal proceedings commenced against any Agent or any Bank by any other Bank
or by any Transferee. The agreements in this Section shall survive repayment of
the Accommodations Outstanding and all other amounts payable hereunder.
SECTION 10.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; PURCHASING BANKS.
(1) This Agreement shall be binding upon and inure to the benefit of the
Company, the Administrative Agent, the Banks, all future holders of the
obligations owing hereunder and their respective successors and assigns.
Notwithstanding any other provision contained herein, (i) no Bank shall
have the right to assign all or any part of its rights or obligations to
any Person who is a non-resident of Canada within the meaning of the
INCOME TAX ACT (Canada), (ii) no Purchasing Bank shall be entitled to
receive any greater
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payment, on a cumulative basis, pursuant to Section 2.13 than the Bank
which granted such assignment would have been entitled to, and (iii) any
participation or assignment hereunder shall not increase the Company's
cost of borrowing under Section 2.14 or otherwise impose any additional
cost, expense or obligation on the Company, in each case, without the
prior written consent of the Company.
(2) Any Bank may, in the ordinary course of its commercial banking business
and in accordance with applicable law, at any time sell to one or more
banks or other entities ("PARTICIPANTS") participating interests in any
Accommodation owing to such Bank, any Commitment of such Bank or any other
interest of such Bank hereunder. In the event of any such sale by a Bank
of participating interests to the Participant, such Bank's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any obligation owing to it
hereunder for all purposes under this Agreement, and the Company and the
Administrative Agent shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this
Agreement; provided, that such Bank shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Agreement other than, as
may be agreed to by such Bank and Participant, any amendment, modification
or waiver with respect to any Accommodation or Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable with respect to any such
Accommodation or Commitment or postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on, any
such Accommodation or Commitment. The Company agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Bank under this Agreement. The
Company also agrees that each Participant shall be entitled to the
benefits of Section 2.13, Section 2.14, Section 2.15 and Section 10.5 with
respect to its participation in the Commitment and the Accommodation
Outstanding from time to time; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such subsections than
the transferor Bank would have been entitled to receive in respect of the
amount of the participation transferred by the transferor Bank to such
Participant had no such transfer occurred.
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(3) Any Bank may, in the ordinary course of its commercial banking business
and in accordance with applicable law, at any time sell to any Bank or any
Affiliate thereof (which shall be resident of Canada) and, with the
consent of the Company and the Administrative Agent (which shall not be
unreasonably withheld), to one or more additional banks or financial
institutions (which shall be resident of Canada) ("PURCHASING BANKS") all
or any part of its rights and obligations under this Agreement pursuant to
a Commitment Transfer Supplement, substantially in the form of Exhibit B
(a "COMMITMENT TRANSFER SUPPLEMENT"), executed by such Purchasing Bank and
such transferor Bank (and, in the case of a Purchasing Bank that is not
then a Bank or an Affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for its acceptance. The
Company shall have no obligation to consent to a sale by a Bank to any
Person that is not a bank or an Affiliate of a bank. Each such assignment
shall be in a minimum amount of $10,000,000 (other than in the case of an
assignment of all of a Bank's interests under this Agreement) and the
parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance, a Commitment Transfer
Supplement, and the transferor Bank or the Purchasing Bank, as agreed
between them, shall deliver to the Administrative Agent a processing and
recordation fee of $3,500. Each such assignment shall be ratable as among
any Commitment and/or Accommodations under this Agreement. After giving
effect to any such assignment (other than an assignment of all of a Bank's
interests under this Agreement), the assigning Bank (together with any
Bank which is an Affiliate of such assigning Bank) shall retain
Accommodations and/or Commitments aggregating not less than $10,000,000.
Upon such execution, delivery, acceptance and recording, from and after
the transfer effective date determined pursuant to such Commitment
Transfer Supplement (the "TRANSFER EFFECTIVE DATE"), (x) the Purchasing
Bank thereunder shall be a party hereto and, to the extent provided in
such Commitment Transfer Supplement, have the rights and obligations of a
Bank hereunder with a Commitment as set forth therein, and (y) the
transferor Bank thereunder shall, to the extent provided in such
Commitment Transfer Supplement, be released from its obligations under
this Agreement (and, in the case of a Commitment Transfer Supplement
covering all or the remaining portion of a transferor Bank's rights and
obligations under this Agreement, such transferor Bank shall cease to be a
party hereto). Such Commitment Transfer Supplement shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Bank and the resulting adjustment
of Commitment Percentages arising from the purchase by such Purchasing
Bank of all or a portion of the rights and obligations of such transferor
Bank under this Agreement. Notwithstanding any provision of this Section
10.6, the consent of the Company shall not be required for any assignment
which
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occurs at any time when any of the events described in Section 8.1(i)
shall have occurred and be continuing.
(4) The Administrative Agent shall maintain at its address referred to in
Section 10.2 a copy of each Commitment Transfer Supplement delivered to
it.
(5) Upon its receipt of a Commitment Transfer Supplement executed by a
transferor Bank and Purchasing Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an Affiliate thereof, by the Company and the
Administrative Agent), the Administrative Agent shall (i) promptly accept
such Commitment Transfer Supplement, and (ii) on the Transfer Effective
Date determined pursuant thereto give notice of such acceptance to the
Banks and the Company.
SECTION 10.7 DISSEMINATION OF INFORMATION; CONFIDENTIALITY.
(1) The Company authorizes each Bank to disclose to any Participant or
Purchasing Bank or any other Person acquiring an interest in this
Agreement by operation of law (each a "TRANSFEREE") and any prospective
Transferee any and all information in such Bank's possession concerning
the creditworthiness of the Company and its Subsidiaries, provided that
such Transferee or prospective Transferee agrees to be bound by this
Section 10.7 with respect to such information as though such Transferee or
prospective Transferee were a Bank hereunder.
(2) Each Bank and each Transferee that receives information which is not
publicly available and which has been identified by the Company as
confidential ("PROPRIETARY INFORMATION") will be bound to treat such
Proprietary Information in a confidential manner and to use such
Proprietary Information only for the purpose of evaluating and monitoring
the creditworthiness of the Company and its Subsidiaries in connection
with such Bank's or such Transferee's extensions of credit pursuant to
this Agreement or such Bank's or Transferee's other agreements with the
Company, or as otherwise may be required by law, regulation or court
order; provided, that if any Bank or Transferee shall be required to
disclose any Proprietary Information by a court order (i) such Bank or
Transferee shall, unless prohibited by applicable law, applicable
regulation or the terms of the applicable court order, communicate such
fact to the Administrative Agent and the Administrative Agent shall
communicate such fact to the Company, and (ii) such Bank or Transferee
shall disclose only such Proprietary Information which it is requested to
disclose or advised by counsel to disclose; provided, further, that any
Bank or Transferee may disclose such information which it is requested to
disclose or is advised by counsel to disclose to an auditor or examiner if
it has advised such auditor or examiner
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that such information is confidential; provided, further, that any Bank or
Transferee may disclose Proprietary Information (A) to Affiliates of such
Bank or Transferee provided that such Affiliates agree to keep the
Proprietary Information confidential as set forth herein, (B) with the
written consent of the Company, (C) in connection with any litigation
involving the Company and such Bank or Transferee, (D) to legal counsel to
such Bank or Transferee if it advises such legal counsel that such
information is confidential, (E) if such Proprietary Information was in
the possession of such Bank or Transferee on a non-confidential basis
prior to the Company furnishing it to such Bank or Transferee as shown by
clear and convincing evidence, or (F) if such Proprietary Information is
received by such Bank or Transferee, without restriction as to its
disclosure or use, from a Person who, to such Bank's or Transferee's
knowledge or reasonable belief, was not prohibited from disclosing it by
any duty of confidentiality.
SECTION 10.8 ADJUSTMENTS.
(1) If any Bank (a "BENEFITTED BANK") shall at any time receive any payment of
all or part of its Accommodations Outstanding, or interest thereon, or
receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8.1(i), or otherwise), in a greater proportion than
any such payment to or collateral received by any other Bank, if any, in
respect of such other Bank's Accommodations Outstanding, or interest
thereon, such benefitted Bank shall purchase for cash from the other Banks
such portion of each such other Bank's Accommodations Outstanding, or
shall provide such other Banks with the benefits of any such collateral,
or the proceeds thereof, as shall be necessary to cause such benefitted
Bank to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Banks; provided, however, that if all or
any portion of such excess payment or benefits is thereafter recovered
from such benefitted Bank, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest. Notwithstanding anything contained in this Agreement to
the contrary, this Section 10.8 shall only be applicable to (i) payments
received by a Bank in respect of the obligations of the Company under this
Agreement, and (ii) collateral received from the Company, if any, to
secure obligations of the Company under this Agreement.
(2) In addition to any rights and remedies of the Banks provided by law, upon
(i) the occurrence and during the continuance of an Event of Default, and
(ii) the declaration by the Administrative Agent that the Accommodations
Outstanding are immediately due and payable pursuant to the last paragraph
of Section 8.1, or the occurrence and continuance of an Event of Default
specified in clause (i) or (ii) of Section 8.1(i), each Bank shall have
the right,
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without prior notice to the Company, any such notice being expressly
waived by the Company to the extent permitted by applicable law (but
without waiving any notices specified in Section 8.1), upon any amount
becoming due and payable by the Company hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and
apply against such amount any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether matured or
unmatured, at any time held or owing by such Bank or any branch or agency
thereof to or for the credit or the account of the Company. Each Bank
agrees promptly to notify the Company and the Administrative Agent after
any such set-off and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such set-off
and application.
SECTION 10.9 COUNTERPARTS.
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Agreement signed by all the parties shall be lodged with
the Company and the Administrative Agent.
SECTION 10.10 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 10.11 INTEGRATION.
This Agreement represents the agreement of the Company, the Agents and the
Banks with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Company, the Agents or any
Bank relative to subject matter hereof not expressly set forth or referred to
herein other than any agreements referred to in Section 2.4(2).
SECTION 10.12 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL LAWS OF CANADA
APPLICABLE THEREIN.
-50-
SECTION 10.13 SUBMISSION TO JURISDICTION; WAIVERS.
The Company hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the courts of the province of Ontario and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid,
to the Company at its address set forth in Section 10.2 or at such
other address of which the Bank shall have been notified pursuant
thereto; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction.
SECTION 10.14 WAIVERS OF JURY TRIAL.
THE COMPANY, THE AGENTS AND THE BANKS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties have executed this Agreement
CIT FINANCIAL LTD.
By:
---------------------------------
Name:
Title:
-00-
XXXXX XXXX XX XXXXXX,
as Administrative Agent
By:
---------------------------------
Name: Xxxx Xxxxxx
Title: Manager, Global Banking,
Agency
ROYAL BANK OF CANADA,
as a Bank
By:
---------------------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
as Syndication Agent and as a Bank
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK OF CANADA,
as Syndication Agent
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
-00-
XXX XXXXX XXXXXXXXX XXXX,
XXXXXXX BRANCH
as a Bank
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
-00-
XXXX XX XXXXXXXX,
as Managing Agent and as a Bank
By:
---------------------------------
Name: X. Xxxxxxxxx
Title: Director
THE BANK OF NOVA SCOTIA,
as Managing Agent and as a Bank
By:
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
THE TORONTO-DOMINION BANK,
as Managing Agent and as a Bank
By:
---------------------------------
Name: Xxxx Xxxxx
Title: Relationship Manager
By:
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Manager, Commercial Credit
BANK OF AMERICA CANADA,
as a Bank
By:
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
-54-
BANK ONE CANADA,
as a Bank
By:
---------------------------------
Name: M.N. Tam
Title: Vice President
BNP PARIBAS (CANADA),
as a Bank
By:
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: SVP and Treasurer
By:
---------------------------------
Name: Alain Ligault
Title: SVP
CITIBANK CANADA,
as a Bank
By:
---------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
-55-
CREDIT SUISSE FIRST BOSTON CANADA,
as a Bank
By:
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
By:
---------------------------------
Name: Xxxxx Xxxxxx
Title: Director
DEUTSCHE BANK CANADA,
as a Bank
By:
---------------------------------
Name: Xxx X'Xxxx
Title: Director
By:
---------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
MIZUHO BANK (CANADA),
as a Bank
By:
---------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
SCHEDULE I
TO THE 364-DAY CREDIT AGREEMENT
COMMITMENTS AND BANK INFORMATION
======================================================= =======================
LENDER COMMITMENT
------------------------------------------------------- -----------------------
Royal Bank of Canada $70,000,000
000 Xxx Xx., 00xx Xxxxx
Xxxxx Xxxxx
Xxxxx Bank Plaza
Toronto, Ontario
M5J 2J5
Attention: Xxxxxxx X.X. Xxxxxx
Senior Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
Canadian Imperial Bank of Commerce $64,000,000
BCE Place
000 Xxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx
XXXXXX X0X 0X0
Attention: Xxxxx Xxxxxxxx
Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
Xxx Xxxxx Xxxxxxxxx Xxxx, Xxxxxxx Branch $64,000,000
0 Xxxxx Xxxxxxxx Xxxxx
000 Xxxx Xxxxxx Xxxx
Xxxxx 0000, X.X. Xxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
======================================================= =======================
-2-
======================================================= =======================
LENDER COMMITMENT
------------------------------------------------------- -----------------------
Bank of Montreal $40,000,000
First Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Cam Xxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
The Bank of Nova Scotia $40,000,000
00 Xxxx Xxxxxx Xxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxx
Director Bank Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
The Toronto-Dominion Bank $40,000,000
X.X. Xxx 0, Xxxxxxx-Xxxxxxxx Xxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
Bank of America Canada $26,000,000
000 Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx Sales xx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
======================================================= =======================
-3-
======================================================= =======================
LENDER COMMITMENT
------------------------------------------------------- -----------------------
Bank One Canada $26,000,000
BCE Place
000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xx. Xxxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
BNP Paribas (Canada) $26,000,000
000 Xxxx Xxxxxx Xxxx
P.O. Box 87, Suite 2130
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
Citibank Canada $26,000,000
Citibank Place
000 Xxxxx Xxxxxx West
10th Floor
Toronto, Ontario
M5J 2M3
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
Credit Suisse First Boston Canada $26,000,000
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
P.O. Box 301
Toronto, Ontario
M5X 1C9
Attention: Xxxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
======================================================= =======================
-4-
======================================================= =======================
LENDER COMMITMENT
------------------------------------------------------- -----------------------
Deutsche Bank Canada $26,000,000
000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxx Xxxxxx
Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
Mizuho Bank (Canada) $26,000,000
000 Xxxxx Xxxxxx
X.X. Xxx 00, Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Mr. Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
------------------------------------------------------- -----------------------
TOTAL: $500,000,000
======================================================= =======================
