Exhibit 10-H
CONFORMED COPY
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$5,600,000,000
LONG TERM REVOLVING CREDIT AGREEMENT
Dated as of May 1, 1995
CHRYSLER FINANCIAL CORPORATION and
CHRYSLER CREDIT CANADA LTD.,
as BORROWERS
ABN AMRO BANK, N.V.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE,
THE CHASE MANHATTAN BANK, N.A., CREDIT SUISSE,
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
NATIONSBANK OF NORTH CAROLINA, N.A.,
SOCIETE GENERALE and THE TORONTO-DOMINION BANK,
as MANAGING AGENTS
ROYAL BANK OF CANADA,
as CANADIAN ADMINISTRATIVE AGENT
CHEMICAL BANK,
as ADMINISTRATIVE AGENT
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS............................................ 1
1.1 Defined Terms........................................ 1
1.2 Other Definitional Provisions........................ 18
SECTION 2. THE U.S. COMMITMENTS................................... 18
2.1 The U.S. Commitments................................. 18
2.2 Procedure for Borrowing.............................. 18
2.3 U.S. L/F Loans....................................... 19
2.4 Conversion and Continuation Options.................. 20
2.5 Minimum Amount of Eurodollar Tranches................ 20
2.6 Certain Matters Relating to Eurodollar Loans......... 20
SECTION 3. THE CANADIAN COMMITMENTS............................... 22
3.1 The Canadian Commitments............................. 22
3.2 Procedure for C$ R/C Loan Borrowing.................. 22
3.3 Bankers' Acceptances................................. 22
3.4 C$ L/F Loans......................................... 25
3.5 Conversion Option.................................... 26
3.6 Currency Fluctuations, etc........................... 27
SECTION 4. GENERAL PROVISIONS..................................... 27
4.1 Evidence of Debt..................................... 27
4.2 Repayment of Loans................................... 28
4.3 Interest Rate and Payment Dates...................... 28
4.4 Lending Procedures................................... 29
4.5 Facility Fees........................................ 29
4.6 Termination or Reduction of Commitments.............. 30
4.7 Optional Prepayments................................. 30
4.8 Pro Rata Treatment and Payments...................... 30
4.9 Computation of Interest and Fees..................... 31
4.10 Increased Costs..................................... 32
4.11 Changes in Capital Requirements..................... 33
4.12 Indemnity........................................... 34
4.13 Taxes............................................... 35
4.14 Use of Proceeds..................................... 36
4.15 Replacement of Banks................................ 36
SECTION 5. REPRESENTATIONS AND WARRANTIES......................... 37
5.1 Financial Condition.................................. 37
5.2 No Change............................................ 37
5.3 Corporate Existence.................................. 37
5.4 Corporate Authorization; No Violation................ 37
5.5 Government Authorization............................. 38
5.6 Federal Regulations.................................. 38
5.7 Enforceable Obligations.............................. 38
5.8 No Material Litigation............................... 38
5.9 Taxes................................................ 38
Page
5.10 ERISA............................................... 38
5.11 Investment Company Act; Other Regulations........... 38
5.12 Existing Financial Covenants........................ 39
SECTION 6. CONDITIONS PRECEDENT................................... 39
6.1 Conditions to Effectiveness.......................... 39
6.2 Conditions to Each Facility Loan..................... 40
SECTION 7. AFFIRMATIVE COVENANTS.................................. 41
7.1 Financial Statements, etc............................ 41
7.2 Maintenance of Existence............................. 42
7.3 Notices.............................................. 42
SECTION 8. NEGATIVE COVENANTS..................................... 42
8.1 Debt to Equity Ratio................................. 42
8.2 Limitation on Transactions with Affiliates........... 42
8.3 Limitation on Fundamental Change..................... 42
8.4 Limitation on Liens.................................. 43
8.5 Additional Covenants................................. 44
SECTION 9. EVENTS OF DEFAULT...................................... 45
SECTION 10. THE AGENTS............................................ 48
10.1 Appointment......................................... 48
10.2 Delegation of Duties................................ 48
10.3 Exculpatory Provisions.............................. 48
10.4 Reliance by Agents and CASC......................... 48
10.5 Notice of Default................................... 49
10.6 Non-Reliance on Agents, Other Banks and CASC. ..... 49
10.7 Indemnification..................................... 49
10.8 Agents in their Individual Capacity................. 50
10.9 Successor Agents.................................... 50
10.10 The Managing Agents................................ 50
SECTION 11. FOREIGN CURRENCY SUBFACILITIES........................ 51
11.1 Terms of Foreign Currency Subfacilities............. 51
11.2 Currency Fluctuations, etc.......................... 52
SECTION 12. GUARANTEE............................................. 53
12.1 Guarantee........................................... 53
12.2 No Subrogation, Contribution, Reimbursement
or Indemnity........................................ 54
12.3 Amendments, etc. with respect to the Subsidiary
Borrower Obligations................................ 54
12.4 Guarantee Absolute and Unconditional................ 54
12.5 Reinstatement....................................... 55
12.6 Payments............................................ 55
12.7 Judgments Relating to Guarantee..................... 56
12.8 Independent Obligations............................. 56
- ii -
Page
SECTION 13. MISCELLANEOUS......................................... 56
13.1 Amendments and Waivers.............................. 56
13.2 Notices............................................. 57
13.3 Clearing Accounts................................... 58
13.4 No Waiver; Cumulative Remedies...................... 59
13.5 Survival of Representations and Warranties.......... 59
13.6 Payment of Expenses................................. 59
13.7 Successors and Assigns.............................. 60
13.8 Right of Set-off.................................... 62
13.9 Adjustments......................................... 62
13.10 New Banks; Commitment Increases; Commitment
Reallocations...................................... 62
13.11 Changing Designations of Liquidity Facility
Banks.............................................. 64
13.12 Tax Forms.......................................... 64
13.13 Counterparts....................................... 64
13.14 Governing Law...................................... 64
13.15 Submission to Jurisdiction; Waivers................ 65
13.16 Integration........................................ 65
13.17 Judgments Relating to CCCL......................... 65
13.18 WAIVERS OF JURY TRIAL.............................. 66
SCHEDULES
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SCHEDULE I Commitments
SCHEDULE II Existing Financial Covenants
EXHIBITS
- --------
EXHIBIT A Addendum
EXHIBIT B Closing Certificate
EXHIBIT C-1 Opinion of Simpson Thacher & Bartlett
EXHIBIT C-2 Opinion of General Counsel of CFC
EXHIBIT C-3 Opinion of Canadian Counsel to CCCL
EXHIBIT D-1 Assignment and Acceptance
EXHIBIT D-2 New Bank Supplement
EXHIBIT D-3 Commitment Increase Supplement
EXHIBIT D-4 Commitment Reallocation Supplement
EXHIBIT E Promissory Note
EXHIBIT F Foreign Currency Subfacility Addendum
- iii -
LONG TERM REVOLVING CREDIT AGREEMENT dated as of May 1, 1995
among CHRYSLER FINANCIAL CORPORATION, a Michigan corporation ("CFC"), CHRYSLER
CREDIT CANADA LTD. ("CCCL"), a Canadian corporation, the several commercial
banks from time to time parties to this Agreement (as more specifically
defined below, the "Banks"), ABN AMRO BANK, N.V., BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE, THE CHASE
MANHATTAN BANK, N.A., CREDIT SUISSE, THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK OF NORTH
CAROLINA, N.A., SOCIETE GENERALE and THE TORONTO-DOMINION BANK, as Managing
Agents (in such capacity, the "Managing Agents"), ROYAL BANK OF CANADA, a
Canadian chartered bank ("Royal"), as Canadian administrative agent for the C$
Banks (as defined below) hereunder, and CHEMICAL BANK, a New York banking
corporation ("Chemical"), as administrative agent for the Banks hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
defined in the caption to this Agreement shall have the meanings set forth
therein, and the following terms have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"Acceptance Fee": the fee payable in C$ to each C$ Bank in
respect of Bankers' Acceptances computed in accordance with Section
3.3.
"Accumulated Funding Deficiency": any "accumulated funding
deficiency" as defined in Section 302 of ERISA.
"ACH": an Automated Clearing House.
"Addendum": an instrument, substantially in the form of
Exhibit A, by which a Bank becomes a party to this Agreement.
"Administrative Agent": Chemical Bank and its affiliates, in
their respective capacities as administrative agent for the Banks
under this Agreement and arranger of the Commitments, together with
any of their respective successors.
"Affected Bank": as defined in Section 2.6(b).
"Affiliate": with respect to any Person, any other Person
that, directly or indirectly, controls or is controlled by or is
under common control with such Person. For the purposes of this
definition, "control" (including, with correlative meanings, the
terms "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and
2
policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Agents": the collective reference to the Administrative
Agent and the Canadian Administrative Agent.
"Aggregate Canadian Extensions of Credit": with respect to
any C$ Bank, at any time, the aggregate principal amount of all C$
Loans (US$ Equivalent) made by such Bank then outstanding.
"Aggregate Foreign Extensions of Credit": with respect to
any US$ Bank, at any time, the sum of (a) the aggregate Foreign
Currency Subfacility Maximum Borrowing Amounts with respect to such
Bank under any Foreign Committed Subfacility to which it is a party
and (b) the aggregate outstanding principal amount of all Foreign
Currency Loans (US$ Equivalent) made by such Bank under any Foreign
Uncommitted Subfacility to which it is a party.
"Aggregate U.S. Extensions of Credit": with respect to any
US$ Bank, at any time, the aggregate principal amount of all U.S.
Loans made by such Bank then outstanding.
"Aggregate U.S./Foreign Extensions of Credit": with respect
to any US$ Bank, at any time, the sum of the Aggregate Foreign
Extensions of Credit of such Bank and the Aggregate U.S. Extensions
of Credit of such Bank at such time.
"Agreement": this Long Term Revolving Credit Agreement, as
the same may be amended, modified or supplemented from time to time.
"Applicable BA Discount Rate":
(a) with respect to any Schedule I C$ Bank, as applicable to
a Bankers' Acceptance being purchased by such Schedule I C$ Bank on
any day, the average (as determined by the Canadian Administrative
Agent) of the respective percentage discount rates (expressed to two
decimal places and rounded upward, if necessary, to the nearest
1/100th of 1%) quoted to the Canadian Administrative Agent by each
Schedule I C$ Reference Bank as the percentage discount rate at which
such Schedule I C$ Reference Bank would, in accordance with its
normal practices, at or about 10:00 A.M., Toronto time, on such day,
be prepared to purchase bankers' acceptances accepted by such
Schedule I Reference C$ Bank having a maturity date comparable to the
maturity date of such Bankers' Acceptance; and
(b) with respect to any Schedule II C$ Bank, as applicable
to a Bankers' Acceptance being purchased by such Schedule II C$ Bank
on any day, the average (as determined by the Canadian Administrative
Agent) of the respective percentage discount rates (expressed to two
decimal places and rounded upward, if necessary, to the nearest
1/100th of 1%) quoted to the Canadian Administrative Agent by each
Schedule II C$ Reference Bank as the percentage discount rate at
which such Schedule II C$ Reference Bank would, in accordance with
its normal practices, at or about 10:00 A.M., Toronto time, on such
day, be prepared to purchase bankers' acceptances accepted by such
Schedule II Reference C$ Bank having a maturity date comparable to
the maturity date of such Bankers' Acceptance.
3
"Applicable Margin": with respect to each Eurodollar Loan or
Banker's Acceptance at any date, the applicable percentage per annum
set forth below based upon the Status and U.S. Utilization or
Canadian Utilization, as applicable, on such date (provided that if
the Commitments have been terminated prior to such date, the U.S.
Utilization and Canadian Utilization for such date shall be deemed to
be greater than 50%):
Level I Level II Level III Level IV Level V
U.S./Canadian Utilization Status Status Status Status Status
- ------------------------- -------- -------- --------- --------- --------
Less than or equal to
50%: 0.2500% 0.2500% 0.3000% 0.3750% 0.5000%
Greater than 50%: 0.3750% 0.3750% 0.4250% 0.5000% 0.6250%
"Assessment Rate": for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently
estimated by the Administrative Agent as the then current net annual
assessment rate that will be employed in determining amounts payable
by Chemical to the Federal Deposit Insurance Corporation (or any
successor) for insurance by such Corporation (or any successor) of
time deposits made in Dollars at Chemical's domestic offices.
"Available Canadian Commitment": as to any C$ Bank, at a
particular time, an amount equal to the excess, if any, of (a) the
amount of such Bank's Canadian Commitment at such time over (b) the
Aggregate Canadian Extensions of Credit of such Bank at such time.
"Available U.S. Commitment": as to any US$ Bank, at a
particular time, an amount equal to the excess, if any, of (a) the
amount of such Bank's U.S. Commitment at such time over (b) the
Aggregate U.S./Foreign Extensions of Credit of such Bank at such
time.
"BA Discount Proceeds": in respect of any Bankers'
Acceptance to be purchased by a C$ Bank on any day under Section 3.3,
an amount (rounded to the nearest whole Canadian cent, and with
one-half of one Canadian cent being rounded up) calculated on such
day by dividing:
(A) the face amount of such Bankers' Acceptance; by
(B) the sum of one plus the product of:
(i) the Applicable BA Discount Rate (expressed
as a decimal) applicable to such Bankers'
Acceptance; and
(ii) a fraction, the numerator of which is the
number of days remaining in the term of
such Bankers' Acceptance and the
denominator of which is the number of days
in the calendar year in which the Bankers'
Acceptance is issued, being 365 or 366, as
applicable;
with such product being rounded up or down
to the fifth decimal place and .000005
being rounded up.
4
"Bankers' Acceptance": a bill of exchange denominated in C$
drawn by CCCL and accepted by a C$ Bank pursuant to Section 3.3.
"Banking Day": in respect of any city, any day on which
commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in that city.
"Bank Rate": at any date of determination, the rate
determined by the Bank of Canada at its weekly three-month Canadian
Dollar Treasury Bill auction.
"Banks": as defined in the caption to this Agreement;
provided, that (a) each reference herein to any Bank shall be deemed
to be a reference to each US$ Bank and to each C$ Bank unless the
context otherwise requires (in which case such reference shall be
deemed to be a reference only to each US$ Bank or to each C$ Bank, as
applicable) and (b) each reference herein to any Bank shall, to the
extent applicable, be deemed to be a reference to any subsidiary,
affiliate, branch or agency of any Bank which is a party to a Foreign
Currency Subfacility.
"Base Rate": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/100th of 1%) equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the Base CD Rate in effect
on such day plus 1% and (c) the Effective Federal Funds Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from
time to time by Chemical as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced; "Base CD
Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment
Rate; and "Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day shall not be
a Business Day, the next preceding Business Day) by the Federal
Reserve Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Federal Reserve Board, be published in Federal
Reserve Statistical Release H.15(519) during the week following such
day), or, if such rate shall not be so reported for such day or such
next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money
center banks in New York City received at approximately 10:00 A.M.,
New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the
Administrative Agent from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent clearly demonstrable error)
that it is unable to ascertain the Base CD Rate or the Effective
Federal Funds Rate or both for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations
in accordance with the terms thereof, the Base Rate shall be
determined without regard to clause (b) or (c), or both, of the first
sentence of this definition, as appropriate, until the circumstances
giving rise to such inability no longer exist. Any change in the Base
Rate due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Effective Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate, the Three-Month
Secondary CD Rate or the Effective Federal Funds Rate, respectively.
5
"Base Rate Loans": U.S. Loans at such time as they bear
interest at a rate based upon the Base Rate.
"Borrowing Date": any Business Day prior to the Termination
Date specified in a notice pursuant to Section 2.2, 2.3, 3.2, 3.3 or
3.4 as a date on which a Facility Borrower requests Facility Loans to
be made hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close, except that, (a) when used in connection
with a Eurodollar Loan with respect to which the Eurodollar Rate is
determined based upon the Telerate screen in accordance with the
definition of Eurodollar Rate, "Business Day" shall mean any Business
Day on which dealings in foreign currencies and exchange between
banks may be carried on in London, England and New York, New York and
(b) when used in connection with a C$ Loan, "Business Day" shall mean
a day on which banks are open for business in Toronto, Ontario,
Canada but excludes Saturday, Sunday and any other day which is a
legal holiday in Toronto, Ontario, Canada.
"C$ Bank": each Bank designated as a "C$ Bank" on Schedule
I, as such Schedule may be modified from time to time pursuant to
Section 13.7 or 13.10.
"C$ Commitment Percentage": as to any C$ Bank at any time,
the percentage of the aggregate Canadian Commitments then constituted
by such Bank's Canadian Commitment.
"C$ L/F Bank": each C$ Bank that has agreed to make C$ L/F
Loans hereunder as indicated on Schedule I, as such Schedule may be
modified from time to time pursuant to Section 13.7 or 13.11.
"C$ L/F Loans": as defined in Section 3.4.
"C$ Loans": the collective reference to C$ R/C Loans, C$ L/F
Loans and Bankers' Acceptances. For the purposes of this agreement,
the principal amount of any C$ Loan constituting a Bankers'
Acceptance shall be deemed to be the face amount of such Bankers'
Acceptance.
"C$ Prime Loans": C$ Loans at such time as they bear
interest at a rate based upon the Canadian Prime Rate.
"C$ R/C Loans": as defined in Section 3.1.
"Canadian Administrative Agent": Royal, in its capacity as
Canadian administrative agent for the C$ Banks under this Agreement,
together with any of its successors.
"Canadian Calculation Date": the Business Day immediately
preceding the Effective Date and the last Business Day of each
calendar month.
"Canadian Commitment": as to any C$ Bank, its obligation to
make C$ R/C Loans and purchase Bankers' Acceptances and, in the case
of C$ L/F Banks, to make C$ L/F Loans, to or from CCCL hereunder in
an aggregate principal amount (US$ Equivalent) at any one time
outstanding not to exceed the amount (expressed in Dollars) set forth
opposite such
6
Bank's name on Schedule I, as such amount may be changed from time to
time as provided herein.
"Canadian Dollars" or "C$": lawful currency of Canada.
"Canadian Exchange Rate": on a particular date, the rate at
which C$ may be exchanged into Dollars, determined by reference to
the Bank of Canada noon rate as published on the Reuters Screen page
BOFC. In the event that such rate does not appear on such Reuters
page, the "Canadian Exchange Rate" shall be determined by reference
to any other means (as selected by the Canadian Administrative Agent)
by which such rate is quoted or published from time to time by the
Bank of Canada; provided, that if at the time of any such
determination, for any reason, no such exchange rate is being quoted
or published, the Canadian Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and
such determination shall be conclusive absent manifest error.
"Canadian Prime Rate": with respect to a C$ Prime Loan, on
any day, the greater of (a) the annual rate of interest announced
from time to time by Royal as its reference rate then in effect for
determining interest rates on C$ denominated commercial loans in
Canada and (b) the annual rate of interest equal to the sum of (i)
the CDOR Rate and (ii) 0.75% per annum.
"Canadian Register": as defined in Section 13.7(c).
"Canadian Reset Date" as defined in Section 3.6(a).
"Canadian Utilization": with respect to any Utilization
Period, the percentage equivalent of a fraction (a) the numerator of
which is the average daily principal amount of C$ Loans (US$
Equivalent) outstanding during such Utilization Period and (b) the
denominator of which is the average daily amount of the aggregate
Canadian Commitments of all C$ Banks during such Utilization Period.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"CASC": Chemical Bank Agency Services (and any successor).
"CDOR Rate": on any day, the annual rate of interest which
is the rate based on an average 30 day rate applicable to C$ bankers'
acceptances appearing on the "Reuters Screen CDOR Page" (as defined
in the International Swap Dealer Association, Inc. definitions, as
modified and amended from time to time) as of 10:00 A.M., Toronto
time, on such day, or if such day is not a Business Day, then on the
immediately preceding Business Day; provided, however, if such rate
does not appear on the Reuters Screen CDOR Page as contemplated, then
the CDOR Rate on any day shall be calculated as the arithmetic mean
of the 30 day rates applicable to C$ bankers' acceptances quoted by
the Schedule I C$ Reference Banks as of 10:00 A.M., Toronto time, on
such day, or if such day is not a Business Day, then on the
immediately preceding Business Day. If less than all of the Schedule
I C$ Reference Banks quote the aforementioned rate on the days and at
the times described above, the "CDOR Rate" shall be such other rate
or rates as the Canadian Administrative Agent and CCCL may agree.
7
"CFC Affiliate": any Person that, directly or indirectly,
controls or is controlled by or is under common control with CFC
(including, without limitation, Chrysler and its subsidiaries, but
excluding any Subsidiary). For the purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with
respect to any Person, shall mean the power, directly or indirectly,
either to (a) vote 20% or more of the securities (or other equity
interests) of such Person having ordinary voting power or (b) direct
or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities (or other equity
interests) or by contract or otherwise.
"Change of Control": any of the following events or
circumstances: (a) any Person or "group" (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended) shall either (i) acquire beneficial ownership of more than
50% of any outstanding class of common stock of Chrysler having
ordinary voting power in the election of directors of Chrysler or
(ii) obtain the power (whether or not exercised) to elect a majority
of Chrysler's directors or (b) the Board of Directors of Chrysler
shall not consist of a majority of Continuing Directors. As used in
this definition, "Continuing Directors" shall mean the directors of
Chrysler on the Effective Date and each other director of Chrysler,
if such other director's nomination for election to the Board of
Directors of Chrysler is recommended by a majority of the then
Continuing Directors.
"Chartered Bank": a bank named on Schedule I or Schedule II
to the Bank Act (Canada).
"Chrysler": Chrysler Corporation, a Delaware corporation.
"Clearing Account": as to any US$ Bank, the bank account
designated in its Addendum, or such other bank account as such Bank
shall designate in writing to the Administrative Agent from time to
time, provided that such other bank account shall be maintained at
the office of an ACH member.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commercial Bank": (a) with respect to the U.S. Commitments
and the U.S. Loans thereunder, any Person (i) licensed to engage in
commercial banking business and (ii) which on the date it becomes a
Bank (or purchases a participation) hereunder (x) is entitled to
receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (y) is
entitled to an exemption from, or is not subject to, United States
backup withholding tax and (b) with respect to the Canadian
Commitments and the C$ Loans thereunder, any Chartered Bank which
(except in the case of participations) has a Related US$ Bank.
"Commitment": with respect to any Bank, the sum of such
Bank's U.S. Commitment and Canadian Commitment.
"Commitment Percentage": as to any Bank at any time, the
percentage of the aggregate Commitments then constituted by such
Bank's Commitment.
8
"Commitment Period": as to the Commitment of any Bank, the
period from and including the Effective Date (or, in the case of an
assignee that is not already a Bank and any New Bank, from the date
that such Person becomes party to this Agreement as provided in
Section 13.7 or 13.10, as applicable) to but not including the
Termination Date or such earlier date as the Commitments shall
terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with CFC within the
meaning of Section 4001 of ERISA or is part of a group which includes
CFC and is treated as a single employer under Section 414 of the
Code.
"Contractual Obligation": as to any Person, any enforceable
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which
it or any of its property is bound.
"D&P": Duff & Phelps Credit Rating Company and its
successors.
"Debt": at any date, the amount which would appear in
accordance with GAAP on a consolidated balance sheet of CFC and its
Subsidiaries on such date opposite the heading "debt" (or any similar
item).
"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, lapse of time, or
both, or the happening of any other condition, has been satisfied.
"Dollars" or "$": lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"Effective Date": subject to satisfaction of the conditions
specified in Section 6.1, May 5, 1995.
"Effective Federal Funds Rate": for any day, the weighted
average of the rates on overnight Federal funds transactions between
members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average quotations
for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by
it.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Equity": at any date, the amount which would appear in
accordance with GAAP on a consolidated balance sheet of CFC and its
Subsidiaries on such date opposite the heading "total shareholders'
investment" (or any similar item).
"Eurodollar Loan": any U.S. Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
9
"Eurodollar Rate": in the case of any Eurodollar Loan, with
respect to each day during each Interest Period (other than any
seven-day Interest Period) pertaining to such Eurodollar Loan, the
rate of interest determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the
Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period, provided, that in the
event that such rate does not appear on Page 3750 of the Telerate
Service (or otherwise on such service), the "Eurodollar Rate" shall
be determined by reference to such other publicly available service
for displaying eurodollar rates as may be agreed upon by the
Administrative Agent and CFC. In the absence of such agreement, and
in the case of any seven-day Interest Period pertaining to such
Eurodollar Loan, the "Eurodollar Rate" shall instead be the rate per
annum equal to the average (rounded upward, if necessary, to the
nearest 1/100th of 1%) of the respective rates notified to the
Administrative Agent by each of the Eurodollar Reference Banks as the
rate at which such Reference Bank is offered Dollar deposits at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of the relevant Interest Period, in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to
the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Eurodollar Reference Banks": Chemical, Royal and Swiss Bank
Corporation; provided, that, for the purposes of determining the
Eurodollar Rate with respect to any seven-day Interest Period,
Chemical shall be the sole Eurodollar Reference Bank.
"Eurodollar Tranche": the collective reference to Eurodollar
Loans having the same Interest Period, whether or not originally made
on the same day.
"Event of Default": any of the events specified in Section
9, provided that any requirement for the giving of notice, the lapse
of time, or both, or the happening of any other condition, has been
satisfied.
"Excess U.S. Utilization Period": any Utilization Period
with respect to which the U.S. Utilization exceeds 50%.
"Existing Agreements": the collective reference to (a) the
Revolving Credit Agreement dated as of May 23, 1994 among CFC, the
banks parties thereto and Chemical, as Agent, (b) the Revolving
Credit Agreement dated as of May 23, 1994 among CCCL, the banks
parties thereto and Royal, as Agent, (c) the Short Term Receivables
Purchase Agreement dated as of May 23, 1994 among CFC, certain of its
Subsidiaries and Chemical, as Agent and Administrative Agent, (d) the
Long Term Receivables Purchase Agreement dated as of May 23, 1994
among CFC, certain of its Subsidiaries and Chemical, as Agent and
Administrative Agent, (e) the Short Term Receivables Purchase
Agreement dated as of May 23, 1994 among CCCL, certain of its
Subsidiaries and Royal, as Agent, and (f) the Long Term Receivables
Purchase Agreement dated as of May 23, 1994 among CCCL, certain of
its Subsidiaries and Royal, as Agent.
"Facility Borrowers": the collective reference to CFC and
CCCL.
"Facility Fee": as defined in Section 4.5.
10
"Facility Fee Rate": for any day, the rate per annum set
forth below opposite the Status in effect on such day:
Facility Fee
Status Rate
--------------- -------------
Level I Status 0.1000%
Level II Status 0.1250%
Level III Status 0.1500%
Level IV Status 0.2500%
Level V Status 0.3750%
"Facility Loans": the collective reference to the U.S. Loans
and the C$ Loans.
"Federal Reserve Board": the Board of Governors of the
Federal Reserve System of the United States.
"Final Date": as defined in Section 4.5.
"Finance Business": (a) the small loan, personal finance,
consumer finance or installment credit business (including the
business of making collateral loans secured by credit obligations or
personal property), (b) the sales finance business and the business
of purchasing and selling notes and accounts receivable (whether or
not repayable in installments) and interests therein, (c) the
commercial financing and factoring business as generally conducted,
including the leasing of tangible personal property, and (d) any
business (including, without limitation, securitization and other
receivables-based transactions) related to or conducted in connection
with any business of the character referred to in the foregoing
clauses (a), (b) and (c) other than insurance underwriting.
"Finance-Related Insurance Business": the business of (a)
insuring articles and merchandise the sale or leasing of which is
financed in the ordinary course of the Finance Business, (b) insuring
the lives of individuals who are liable for the payment of the
amounts owing on such sales or leases and writing accident and health
insurance on such individuals, (c) automobile dealership property,
liability, workers compensation and related insurance, (d) motor
vehicle physical damage and liability insurance, and such other
insurance business that is not described in clause (a), (b), (c) or
(d) above to the extent that such insurance business does not produce
at any time aggregate premiums written (net of reinsurance ceded) by
all Subsidiaries in an amount greater than 50% of the aggregate
amount of all premiums written (net of reinsurance ceded) at such
time in all of the insurance business of such Subsidiaries.
"Finance Subsidiary": any Domestic Subsidiary that is
engaged primarily in the Finance Business.
"Fitch": Fitch Investors Service, Inc. and its successors.
11
"Foreign Calculation Date": the last Business Day of each
calendar month.
"Foreign Committed Subfacility": any Foreign Currency
Subfacility designated as a "Foreign Committed Subfacility" pursuant
to Section 11.1(a).
"Foreign Currency": Dollars and any currency other than
Dollars as to which a Foreign Exchange Rate may be calculated.
"Foreign Currency Loans": any loan made pursuant to a
Foreign Currency Subfacility.
"Foreign Currency Subfacility": any credit facility
providing for borrowings in a Foreign Currency which has been
designated as a "Foreign Currency Subfacility" pursuant to a Foreign
Currency Subfacility Addendum.
"Foreign Currency Subfacility Addendum": a Foreign Currency
Subfacility Addendum substantially in the form of Exhibit F and
conforming to the requirements of Section 11.
"Foreign Currency Subfacility Maximum Borrowing Amount": as
defined in Section 11.1(b).
"Foreign Exchange Rate": with respect to any Foreign
Currency on a particular date, the rate at which such Foreign
Currency may be exchanged into Dollars, determined by reference to
the selling rate in respect of such Foreign Currency published in the
"Wall Street Journal" on the relevant Foreign Calculation Date. In
the event that such rate is not, or ceases to be, so published by the
"Wall Street Journal", the "Foreign Exchange Rate" with respect to
such Foreign Currency shall be determined by reference to such other
publicly available source for determining exchange rates as may be
agreed upon by the Administrative Agent and CFC or, in the absence of
such agreement, such "Foreign Exchange Rate" shall instead be the
Administrative Agent's spot rate of exchange in the interbank market
where its foreign currency exchange operations in respect of such
Foreign Currency are then being conducted, at or about 12:00 noon,
local time, at such date for the purchase of Dollars with such
Foreign Currency, for delivery two Banking Days later; provided, that
if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent may use any
reasonable method as it deems applicable to determine such rate, and
such determination shall be conclusive absent manifest error.
"Foreign Reset Date": as defined in Section 11.2(a).
"Foreign Subsidiary": any Subsidiary that (a) is organized
under the laws of any jurisdiction outside the United States of
America, Puerto Rico and Canada, or (b) conducts the major portion of
its business outside the United States of America, Puerto Rico and
Canada.
"Foreign Subsidiary Borrower": any Subsidiary which is a
borrower under a Foreign Currency Subfacility.
"Foreign Uncommitted Subfacility": any Foreign Currency
Subfacility designated as a "Foreign Uncommitted Subfacility"
pursuant to the relevant Foreign Currency Subfacility Addendum.
12
"GAAP": generally accepted accounting principles in the
United States of America (and, to the extent applicable, Canada) in
effect from time to time, except that for the purposes of determining
compliance with the covenants set forth in Section 8, "GAAP" shall
mean generally accepted accounting principles in the United States of
America (and, to the extent applicable, Canada) in effect on December
31, 1994 applied consistently with those used in compiling the
financial statements included in the 1994 Annual Report.
"Governmental Authority": any nation or government, any
state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indebtedness": as applied to any Person at any date, (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services which would appear on a
consolidated balance sheet of such Person (or, in the case of CFC and
its Subsidiaries, CFC) prepared in accordance with GAAP, (b)
obligations of such Person under leases which appear as capital
leases on a consolidated balance sheet of such Person prepared in
accordance with GAAP and (c) any withdrawal obligation of such Person
or any Commonly Controlled Entity thereof to a Multiemployer Plan.
"Interest Period": with respect to any Eurodollar Tranche:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be, with
respect to such Eurodollar Tranche and ending seven days or
one, two, three or six months thereafter, as selected by CFC
in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Tranche and ending seven days or one, two, three
or six months thereafter, as selected by CFC by irrevocable
notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current
Interest Period with respect thereto (or, if no such period
is specified, ending one month thereafter);
provided that, the foregoing provisions are subject to the following:
(A) if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest
Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding
Business Day;
(B) no Interest Period may be selected by CFC if
such Interest Period would end after the Termination Date;
and
(C) any Interest Period of at least one month's
duration that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
relevant calendar month.
13
"Level": any of Level I, Level II, Level III, Level IV or
Level V.
"Level I": any of the following long-term senior unsecured
debt ratings: A+ or better by S&P, A1 or better by Moody's, A+ or
better by D&P or A+ or better by Fitch.
"Level II": any of the following long-term senior unsecured
debt ratings: A or A- by S&P, A2 or A3 by Moody's, A or A- by D&P or
A or A- by Fitch.
"Level III": any of the following long-term senior unsecured
debt ratings: BBB+ or BBB by S&P, Baa1 or Baa2 by Moody's, BBB+ or
BBB by D&P or BBB+ or BBB by Fitch.
"Level IV": any of the following long-term senior unsecured
debt ratings: BBB- by S&P, Baa3 by Moody's, BBB- by D&P or BBB- by
Fitch.
"Level V": any of the following long-term senior unsecured
debt ratings: BB+ or lower (or unrated) by S&P, Ba1 or lower (or
unrated) by Moody's, BB+ or lower (or unrated) by D&P or BB+ or lower
(or unrated) by Fitch.
"L/F Loans": the collective reference to U.S. L/F Loans and
C$ L/F Loans.
"Lien": with respect to any property of any Person, any
mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other), charge or other security interest of any kind in or with
respect to such property (including, without limitation, any
conditional sale or other title retention agreement, and any
financing lease under which such Person is lessee having
substantially the same economic effects as any of the foregoing).
"Loans": the collective reference to the Facility Loans and
the Foreign Currency Loans.
"Local Time": (a) in the case of matters relating to U.S.
Loans, New York City time, and (b) in the case of matters relating to
C$ Loans, Toronto time.
"Material Indebtedness": any item or related items of
Indebtedness (or, in the case of any revolving credit facility, any
commitments) having an aggregate principal amount of at least
$100,000,000 (or the equivalent thereof in any other currency).
"Maximum Canadian Commitment Amount": with respect to each
C$ Bank, the amount specified opposite such Bank's name on Schedule I
in the column captioned "Maximum Canadian Commitment Amount".
"Moody's": Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan": a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in Section 13.10(a).
"1994 Annual Report": CFC's annual report to stockholders
for the fiscal year ended December 31, 1994.
14
"Other Taxes": as defined in Section 4.13(a).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor
corporation.
"Person": an individual, a partnership, a corporation
(including a business trust), a joint stock company, a trust, an
unincorporated association, a joint venture or other entity or a
government or any agency or political subdivision thereof.
"Plan": any pension plan which is covered by Title IV of
ERISA and in respect of which CFC or a Commonly Controlled Entity is
an "employer" as defined in Section 3(5) of ERISA.
"Prohibited Transaction": any "prohibited transaction" as
defined in Section 406 of ERISA or Section 4975 of the Code.
"Rating Agencies": the collective reference to D&P, Fitch,
Moody's and S&P.
"Real Estate Business": the acquisition, development,
leasing, financing, management, maintenance and disposition of real
property, including, without limitation, automotive dealership
facilities and dealership site control arrangements.
"Reference Banks": the collective reference to the
Eurodollar Reference Banks, the Schedule I C$ Reference Banks and the
Schedule II C$ Reference Banks.
"Registers": the collective reference to the U.S. Register
and the Canadian Register.
"Related C$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Related US$ Bank": as defined in the definition of "US$
Bank Combined Commitment".
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Required Banks": at any date, Banks having at least 51% of
the aggregate amount of the Commitments at such date or, if the
Commitments have been terminated or for the purposes of determining
whether to accelerate the Loans pursuant to Section 9, the holders of
at least 51% of the outstanding principal amount of the Loans (US$
Equivalent).
"Required Canadian Banks": at any date, C$ Banks having at
least 51% of the aggregate amount of the Canadian Commitments at such
date.
"Required U.S. Banks": at any date, US$ Banks having at
least 51% of the aggregate amount of the U.S. Commitments at such
date.
"Requirement of Law": 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
15
regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of
its property is subject.
"Responsible Officer": at any particular time, the Chairman
of the Board of Directors, the President, the chief financial
officer, the Vice President-Corporate Finance and Development, the
Treasurer or the Controller of CFC or CCCL, as the case may be.
"S&P": Standard & Poor's Ratings Group, and its successors.
"Schedule I C$ Bank": any C$ Bank named on Schedule I to the
Bank Act (Canada).
"Schedule I Reference C$ Banks": the collective reference to
Royal, Canadian Imperial Bank of Commerce and The Bank of Nova
Scotia.
"Schedule II C$ Bank": any C$ Bank named on Schedule II to
the Bank Act (Canada).
"Schedule II Reference C$ Banks": the collective reference
to Chemical Bank of Canada, Credit Suisse Canada, Banque Nationale de
Paris (Canada) and The Dai-Ichi Kangyo Bank (Canada).
"Short Term Revolving Credit Agreement": (a) the Short Term
Revolving Credit Agreement, dated as of May 1, 1995, among CFC, CCCL,
the financial institutions from time to time parties thereto, the
Managing Agents parties thereto, Royal Bank of Canada, as Canadian
administrative agent, and Chemical Bank, as administrative agent, as
amended, supplemented, or otherwise modified from time to time, or
(b) if such Revolving Credit Agreement is refinanced, refunded or
otherwise replaced by another bank revolving credit agreement, such
agreement, as amended, supplemented or otherwise modified from time
to time.
"Significant Subsidiary": at the time of any determination
thereof, (a) CCCL, (b) any other Finance Subsidiary and (c) any other
Subsidiary of CFC the assets of which constitute at least 5% of the
consolidated assets of CFC and its Subsidiaries as stated on the
consolidated financial statements of CFC and its Subsidiaries for the
most recently ended fiscal quarter of CFC, provided, that the term
"Significant Subsidiary" shall not include any Special Purpose
Subsidiary.
"Single Employer Plan": any Plan which is not a
Multiemployer Plan.
"Special Purpose Subsidiary": any Subsidiary created for the
sole purpose of purchasing assets from CFC or any Finance Subsidiary
with the intention and for the purpose of using such assets in a
securitization transaction.
"Status": the existence of Level I Status, Level II Status,
Level III Status, Level IV Status or Level V Status, as the case may
be. For the purposes of this definition, "Status" will be set at the
lowest Level assigned to CFC by any Rating Agency, unless only one
Rating Agency has assigned such Level to CFC, in which case CFC's
Status will be set at the second lowest Level assigned to CFC by any
Rating Agency.
16
"Statutory Reserves": a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum applicable
reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the
Federal Reserve Board and any other banking authority to which
Chemical is subject with respect to the Base CD Rate (as such term is
used in the definition of "Base Rate"), for new negotiable
nonpersonal time deposits in Dollars of over $100,000 with maturities
approximately equal to three months. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change
in any reserve percentage.
"Subsidiary": any corporation of which CFC or one or more
Subsidiaries or CFC and one or more Subsidiaries shall at the time
own shares of any class or classes (however designated) having voting
power for the election of at least a majority of the members of the
board of directors (or other governing body) of such corporation.
"Subsidiary Borrowers": the collective reference to CCCL and
the Foreign Subsidiary Borrowers.
"Subsidiary Borrower Obligations": with respect to each
Subsidiary Borrower, the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity
of the Loans made to such Subsidiary Borrower and interest accruing
after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding, relating to
such Subsidiary Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans made
to such Subsidiary Borrower and all other obligations and liabilities
of such Subsidiary Borrower to any Agent or to any Bank, whether
direct or indirect, absolute or contingent, due or to become due, or
now existing or hereafter incurred, which may arise under, out of, or
in connection with, this Agreement, any Foreign Currency Subfacility
or any other document made, delivered or given in connection herewith
or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements
of counsel to any Agent or to any Bank that are required to be paid
by such Subsidiary Borrower pursuant to this Agreement or any Foreign
Currency Subfacility) or otherwise.
"Taxes": as defined in Section 4.13(a).
"Termination Date": May 5, 2000, or, if such day is not a
Business Day, the next preceding Business Day.
"Type": as to any U.S. R/C Loan, its nature as a Base Rate
Loan or a Eurodollar Loan.
"Unrefunded C$ L/F Loans": as defined in Section 3.4(c).
"Unrefunded L/F Loans": the collective reference to
Unrefunded U.S. L/F Loans and Unrefunded C$ L/F Loans.
"Unrefunded U.S. L/F Loans": as defined in Section 2.3(c).
17
"US$ Bank": each Bank designated as a "US$ Bank" on Schedule
I, as such Schedule may be modified from time to time pursuant to
Section 13.7 or 13.10.
"US$ Bank Combined Commitment": as to any US$ Bank, the sum
of (a) such Bank's U.S. Commitment and (b) if such Bank has a Related
C$ Bank, such Related C$ Bank's Canadian Commitment; provided, that
in the event that Loans shall be outstanding after the Commitments
shall have been terminated, the "US$ Bank Combined Commitment" of
each US$ Bank, on any day, shall be deemed to equal the aggregate
principal amount of the Loans (US$ Equivalent) made by such Bank (or,
if applicable, such Bank's Related C$ Bank), outstanding on such day.
For the purposes of this Agreement, (i) "Related C$ Bank" means, with
respect to any US$ Bank, as applicable, either (x) such Bank in its
capacity as a C$ Bank or (y) any subsidiary, affiliate, branch or
agency of such Bank which is a C$ Bank and (ii) "Related US$ Bank"
means, with respect to any C$ Bank, as applicable, either (x) such
Bank in its capacity as a US$ Bank or (y) any subsidiary, affiliate,
branch or agency of such Bank which is a US$ Bank. The entry by any
US$ Bank into any Foreign Currency Subfacility shall have no effect
on the amount of the US$ Bank Combined Commitment of such Bank.
"US$ Equivalent": on any date of determination, with respect
to any amount in Canadian Dollars or any Foreign Currency, the
equivalent in Dollars of such amount, determined by the relevant
Agent using the Canadian Exchange Rate or the Foreign Exchange Rate,
as applicable, then in effect with respect thereto as determined
pursuant to Section 3.6 or 11, respectively.
"U.S. Commitment": as to any US$ Bank, its obligation to
make U.S. R/C Loans and, in the case of U.S. L/F Banks, U.S. L/F
Loans to CFC 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 such amount may be changed from time to
time as provided herein.
"U.S. Commitment Percentage": as to any US$ Bank at any
time, the percentage of the aggregate U.S. Commitments then
constituted by such Bank's U.S. Commitment.
"U.S. L/F Bank": each US$ Bank that has agreed to make U.S.
L/F Loans hereunder as indicated on Schedule I, as such Schedule may
be modified from time to time pursuant to Section 13.7 or 13.11.
"U.S. L/F Loans": as defined in Section 2.3(a).
"U.S. Loans": the collective reference to the U.S. L/F Loans
and the U.S. R/C Loans.
"U.S. Net Commitment": at any date, with respect to any US$
Bank, the excess of (a) the U.S. Commitment of such Bank on such date
over (b) the Aggregate Foreign Extensions of Credit of such Bank on
such date.
"U.S. R/C Loans": as defined in Section 2.1(a).
"U.S. Register": as defined in Section 13.7(c).
"U.S. Utilization": for any Utilization Period, with respect
to the U.S. Commitments, the percentage equivalent of a fraction (a)
the numerator of which is the average daily
18
principal amount of U.S. Loans outstanding during such Utilization
Period and (b) the denominator of which is the average daily amount
of the aggregate U.S. Net Commitments of all US$ Banks during such
Utilization Period.
"Utilization Period": (a) each fiscal quarter of CFC and (b)
any portion of a fiscal quarter of CFC ending on the Final Date.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to CFC 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.
(c) 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,
schedule and exhibit references are to this Agreement unless otherwise
specified.
SECTION 2. THE U.S. COMMITMENTS
2.1 The U.S. Commitments. (a) Subject to the terms and
conditions hereof, each US$ Bank severally agrees to make revolving credit
loans ("U.S. R/C Loans") to CFC from time to time during the Commitment
Period. During the Commitment Period, CFC may use the U.S. Commitment of each
US$ Bank by borrowing, prepaying or repaying the U.S. R/C Loans of such Bank,
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event may U.S. R/C Loans be borrowed under this Section 2.1
if, after giving effect thereto and the application of the proceeds thereof,
the aggregate principal amount of U.S. Loans made by any US$ Bank then
outstanding would exceed such Bank's U.S. Net Commitment.
(b) U.S. R/C Loans may be Base Rate Loans or Eurodollar
Loans, as determined by CFC and notified to the Administrative Agent in
accordance with Section 2.2, provided that no Eurodollar Loans shall be made
after the day which is seven days prior to the Termination Date.
2.2 Procedure for Borrowing. CFC may borrow under Section
2.1 during the Commitment Period on any Business Day, provided that CFC shall
give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 10:00 A.M., New York City time,
(i) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, and (ii) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans) specifying (A) the amount to be
borrowed, (B) the requested Borrowing Date, (C) the Type(s) of U.S. R/C Loans
to be borrowed, and (D) the length of the Interest Period for any Eurodollar
Loan. Upon receipt of such notice, the Administrative Agent shall promptly
notify each US$ Bank thereof. Not later than 2:00 P.M., New York City time, on
the Borrowing Date specified in such notice, each US$ Bank shall (subject to
Section 13.3(b)) deposit in its Clearing Account an amount in immediately
available funds equal to the amount of the U.S. R/C Loan to be made by such
Bank pursuant to Section 2.1. The Administrative Agent shall, pursuant to
Section 13.3(a), cause such
19
amount to be withdrawn from each such Clearing Account and shall make the
aggregate amount so withdrawn available to CFC by depositing the proceeds
thereof in the account of CFC with the Administrative Agent on the date such
Loans are made for transmittal by the Administrative Agent upon CFC's request.
Each borrowing pursuant to Section 2.1 shall be in an aggregate principal
amount of the lesser of (i) $50,000,000 or an integral multiple of $1,000,000
in excess thereof or (ii) the then aggregate Available U.S. Commitments.
2.3 U.S. L/F Loans. (a) Subject to the terms and conditions
hereof, each U.S. L/F Bank severally agrees to make liquidity loans (the "U.S.
L/F Loans") to CFC from time to time during the Commitment Period in
accordance with the procedures set forth in this Section 2.3. Amounts borrowed
by CFC under this Section 2.3 may be repaid and, to but excluding the
Termination Date, reborrowed. All U.S. L/F Loans shall at all times be Base
Rate Loans. CFC shall give the Administrative Agent irrevocable notice of any
U.S. L/F Loans requested hereunder (which notice must be received by the
Administrative Agent prior to 12:00 noon, New York City time, on the requested
Borrowing Date) specifying (A) the amount to be borrowed and (B) the requested
Borrowing Date. Upon receipt of such notice, the Administrative Agent shall
promptly notify each U.S. L/F Bank thereof. Not later than 2:30 P.M., New York
City time, on the Borrowing Date specified in such notice each U.S. L/F Bank
shall make the amount of its U.S. L/F Loan available to the Administrative
Agent for the account of CFC at the office of the Administrative Agent set
forth in Section 13.2 in funds immediately available to the Administrative
Agent. The proceeds of such borrowing will then be made available to CFC by
the Administrative Agent crediting the account of CFC on the books of such
office with the aggregate of the amounts made available to the Administrative
Agent by the U.S. L/F Banks and in like funds as received by the
Administrative Agent. Each borrowing pursuant to this Section 2.3 shall be in
an aggregate principal amount of the lesser of (i) $50,000,000 or an integral
multiple of $1,000,000 in excess thereof and (ii) the then aggregate Available
U.S. Commitments of the U.S. L/F Banks. Notwithstanding anything to the
contrary contained in this Agreement, in no event may U.S. L/F Loans be
borrowed under this Section 2.3 if, after giving effect thereto and the
application of the proceeds thereof, the aggregate principal amount of U.S.
Loans made by any US$ Bank then outstanding would exceed such Bank's U.S. Net
Commitment.
(b) Notwithstanding the occurrence of any Default or Event
of Default or noncompliance with the conditions precedent set forth in Section
6, if any U.S. L/F Loans shall remain outstanding at 10:00 A.M., New York City
time, on the fourth Business Day following the Borrowing Date thereof and if
by such time on such fourth Business Day the Administrative Agent shall have
received neither (i) a notice of borrowing delivered pursuant to Section 2.2
requesting that U.S. R/C Loans be made pursuant to Section 2.1 on the
immediately succeeding Business Day in an amount at least equal to the
aggregate principal amount of such U.S. L/F Loans, nor (ii) any other notice
indicating CFC's intent to repay such U.S. L/F Loans with funds obtained from
other sources, the Administrative Agent shall be deemed to have received a
Notice of Borrowing from CFC pursuant to Section 2.2 requesting that U.S. R/C
Loans (which shall be Base Rate Loans) be made pursuant to Section 2.1 on such
immediately succeeding Business Day in an amount equal to the aggregate amount
of such U.S. L/F Loans, and the procedures set forth in Section 2.2 shall be
followed in making such U.S. R/C Loans. The proceeds of such U.S. R/C Loans
shall be applied to repay such U.S. L/F Loans.
(c) If, for any reason, U.S. R/C Loans may not be made
pursuant to Section 2.3(b) to repay U.S. L/F Loans as required by such
Section, effective on the date such U.S. R/C Loans would otherwise have been
made, each US$ Bank severally agrees that it shall unconditionally and
irrevocably, without regard to the occurrence of any Default or Event of
Default, purchase a participating interest in such U.S. L/F Loans ("Unrefunded
U.S. L/F Loans") in an amount equal to the amount of the U.S. R/C Loan which
would otherwise have been made by such Bank pursuant to
20
Section 2.3(b). Each US$ Bank will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its participation, and
the proceeds of such participation shall be distributed by the Administrative
Agent to each U.S. L/F Bank in such amount as will reduce the amount of the
participating interest retained by such U.S. L/F Bank in its U.S. L/F Loans to
the amount of the U.S. R/C Loan which would otherwise have been made by such
Bank pursuant to Section 2.3(b). Each US$ Bank shall share on a pro rata basis
(calculated by reference to its participating interest in such U.S. L/F Loans)
in any interest which accrues thereon and in all repayments thereof. All
payments in respect of Unrefunded U.S. L/F Loans and participations therein
shall be made in accordance with Section 4.8.
2.4 Conversion and Continuation Options. (a) CFC may elect
from time to time to convert Eurodollar Loans to Base Rate Loans, by giving
the Administrative Agent at least two Business Days' prior irrevocable notice
of such election, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto. CFC
may elect from time to time to convert Base Rate Loans (other than U.S. L/F
Loans) to Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election. Any such notice of
conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such notice
the Administrative Agent shall promptly notify each US$ Bank thereof. All or
any part of outstanding Eurodollar Loans and Base Rate Loans (other than U.S.
L/F Loans) may be converted as provided herein, provided that (i) no Base Rate
Loan may be converted into a Eurodollar Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
U.S. Banks have determined in its or their sole discretion that such
conversion is not appropriate and (ii) no Base Rate Loan may be converted into
a Eurodollar Loan after the date that is seven days prior to the Termination
Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by CFC
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required U.S. Banks have determined in its or their sole discretion that
such continuation is not appropriate or (ii) after the date that is seven days
prior to the Termination Date and provided, further, that if CFC shall fail to
give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to Base Rate Loans on the last day of such
then expiring Interest Period. Upon receipt of any notice given by CFC
pursuant to this Section 2.4(b), the Administrative Agent shall promptly
notify each US$ Bank thereof.
2.5 Minimum Amount of Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, payments,
prepayments, continuations and conversions of U.S. R/C Loans shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising any
Eurodollar Tranche shall not be less than $50,000,000.
2.6 Certain Matters Relating to Eurodollar Loans. (a) In the
event that (i) the Administrative Agent determines (which determination shall
be conclusive and binding upon CFC) that by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate in respect of any Eurodollar Loans, or (ii)
the Required U.S. Banks determine (which determination shall be conclusive and
binding upon CFC) and shall notify the
21
Administrative Agent that the rates of interest referred to in the definition
of "Eurodollar Rate" as the basis upon which the rate of interest for
Eurodollar Loans is to be determined do not adequately cover the cost to the
US$ Banks of making or maintaining Eurodollar Loans, in each case with respect
to any proposed U.S. R/C Loan that CFC has requested be made as a Eurodollar
Loan, the Administrative Agent shall forthwith give facsimile transmission or
other written notice of such determination to CFC and the US$ Banks at least
one Business Day prior to the requested Borrowing Date for such Eurodollar
Loan. If such notice is given, any requested borrowing of a Eurodollar Loan
shall be made as a Base Rate Loan. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made.
(b) Upon notice from any Affected Bank (as hereinafter
defined), CFC shall pay to the Administrative Agent for the account of such
Affected Bank an additional amount for each Eurodollar Loan of such Affected
Bank, payable on the last day of the Interest Period with respect thereto,
equal to
P X [[R / (1.00 - r)] - R] X [T / 360]
Where P = the principal amount of such Eurodollar Loan of such Bank;
R = the Eurodollar Rate (expressed as a decimal)
for such Interest Period;
T = the number of days in such Interest Period during
which such Bank was an "Affected Bank"; and
r = the aggregate of rates (expressed as a decimal) of
reserve requirements current on the date two Business
Days prior to the beginning of such Interest Period
(including, without limitation, basic, supplemental,
marginal and emergency reserves) under any regulations
of the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto, as
now and from time to time hereafter in effect, dealing
with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Federal Reserve
Board) maintained by a member bank of the Federal
Reserve System.
The term "Affected Bank" shall mean any US$ Bank party to
this Agreement that is (i) organized under the laws of the United States or
any State thereof or (ii) a bank organized under laws other than those of the
United States of America or a State thereof that is funding its Eurodollar
Loans through a branch or agency located in the United States of America. Each
US$ Bank agrees to notify the Administrative Agent (A) by appropriate
notification on its Addendum in the case of each original US$ Bank party
hereto and (B) in the case of each New Bank, and each assignee pursuant to
Section 13.7(a) that is not already a US$ Bank, upon its becoming a party
hereto as a US$ Bank, whether or not it is an Affected Bank, and of any
subsequent change of status, disclosing the effective date of such change.
(c) Upon the occurrence of any of the events specified in
Section 2.6(a), each US$ Bank whose Eurodollar Loans are affected by any such
event agrees that it will transfer its Eurodollar Loans affected by any such
event to another branch office (or, if such Bank so elects, to an affiliate)
of such Bank, provided that such transfer shall be made only if such Bank
shall have determined in good faith (which determination shall, absent
manifest error, be final, conclusive and binding upon all
22
parties) that, (i) on the basis of existing circumstances, such transfer will
avoid such events and will not result in any additional costs, liabilities or
expenses to such Bank or to CFC and (ii) such transfer is otherwise consistent
with the interests of such Bank.
SECTION 3. THE CANADIAN COMMITMENTS
3.1 The Canadian Commitments. Subject to the terms and
conditions hereof, each C$ Bank severally agrees to make revolving credit
loans ("C$ R/C Loans") (which shall be C$ Prime Loans) to, and to accept
Bankers' Acceptances from, CCCL from time to time during the Commitment
Period. During the Commitment Period, CCCL may use the Canadian Commitment of
each C$ Bank by borrowing, prepaying or repaying the C$ R/C Loans or Bankers'
Acceptances of such Bank, in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof. Notwithstanding anything to
the contrary contained in this Agreement, in no event may C$ R/C Loans or
Bankers' Acceptances be borrowed or issued under this Section 3.1 if, after
giving effect thereto and the application of the proceeds thereof, the
Aggregate Canadian Extensions of Credit of any C$ Bank then outstanding would
exceed such C$ Bank's Canadian Commitment.
3.2 Procedure for C$ R/C Loan Borrowing. CCCL may borrow C$
R/C Loans during the Commitment Period on any Business Day, provided that CCCL
shall give the Canadian Administrative Agent irrevocable notice (which notice
must be received by the Canadian Administrative Agent prior to 12:00 noon,
Toronto time, one Business Day prior to the requested Borrowing Date,
specifying (a) the amount to be borrowed and (b) the requested Borrowing Date.
Upon receipt of such notice, the Canadian Administrative Agent shall promptly
notify each C$ Bank thereof. Not later than 2:00 P.M., Toronto time, on the
Borrowing Date specified in such notice, each C$ Bank shall make the amount of
its share of such borrowing available to the Canadian Administrative Agent for
the account of CCCL at the office of the Canadian Administrative Agent
specified in Section 13.2 and in funds immediately available to the Canadian
Administrative Agent. Each borrowing pursuant to this Section 3.2 shall be in
an aggregate principal amount of the lesser of (i) C$5,000,000 or an integral
multiple of C$100,000 in excess thereof or (ii) the amount in C$ which has a
US$ Equivalent equal to the then aggregate Available Canadian Commitments.
3.3 Bankers' Acceptances. (a) CCCL may issue Bankers'
Acceptances denominated in C$, for purchase by the C$ Banks, each in
accordance with the provisions of this Section 3.3.
(b) Procedures.
(i) Notice. CCCL shall notify the Canadian Administrative
Agent by irrevocable written notice by 10:00 A.M., Toronto time, one
Business Day prior to the Borrowing Date in respect of any borrowing
by way of Bankers' Acceptances.
(ii) Minimum Borrowing Amount. Each borrowing by way of
Bankers' Acceptances shall be in a minimum aggregate face amount of
C$10,000,000.
(iii) Face Amounts. The face amount of each Bankers'
Acceptance shall be C$100,000 or any integral multiple thereof.
(iv) Term. Bankers' Acceptances shall be issued and shall
mature on a Business Day. Each Bankers' Acceptance shall have a term
of at least 30 days and not more than 365 days excluding days of
grace and shall mature on or before the Termination Date and shall be
in
23
form and substance reasonably satisfactory to each C$ Bank.
Notwithstanding the foregoing sentence, Bankers' Acceptances may from
time to time be issued for a term of seven days if each C$ Bank
agrees at such time to accept Bankers' Acceptances with such term in
the amount determined by the Canadian Administrative Agent in respect
of such Bank in accordance with Section 3.3(b)(vii).
(v) Bankers' Acceptances in Blank. To facilitate the
acceptance of Bankers' Acceptances under this Agreement, CCCL shall,
upon execution of this Agreement and from time to time as required,
provide to the Canadian Administrative Agent drafts, in form
satisfactory to the Canadian Administrative Agent, duly executed and
endorsed in blank by CCCL in quantities sufficient for each C$ Bank
to fulfill its obligations hereunder. Each C$ Bank is hereby
authorized to issue such Bankers' Acceptances endorsed in blank in
such face amounts as may be determined by such Bank provided that the
aggregate amount thereof is equal to the aggregate amount of Bankers'
Acceptances required to be accepted by such Bank. No C$ Bank shall be
responsible or liable for its failure to accept a Bankers' Acceptance
if the cause of such failure is, in whole or in part, due to the
failure of CCCL to provide duly executed and endorsed drafts to the
Canadian Administrative Agent on a timely basis nor shall any C$ Bank
be liable for any damage, loss or other claim arising by reason of
any loss or improper use of any such instrument except loss or
improper use arising by reason of the gross negligence or willful
misconduct of such Bank, its officers, employees, agents or
representatives. Each C$ Bank shall maintain a record with respect to
Bankers' Acceptances (i) received by it from the Canadian
Administrative Agent in blank hereunder, (ii) voided by it for any
reason, (iii) accepted by it hereunder, (iv) purchased by it
hereunder and (v) cancelled at their respective maturities. Each C$
Bank further agrees to retain such records in the manner and for the
statutory periods provided in the various Canadian provincial or
federal statutes and regulations which apply to such Bank.
(vi) Execution of Bankers' Acceptances. Drafts of CCCL to be
accepted as Bankers' Acceptances hereunder shall be duly executed on
behalf of CCCL. Notwithstanding that any person whose signature
appears on any Bankers' Acceptance as a signatory for CCCL may no
longer be an authorized signatory for CCCL at the date of issuance of
a Bankers' Acceptance, such signature shall nevertheless be valid and
sufficient for all purposes as if such authority had remained in
force at the time of such issuance and any such Bankers' Acceptance
so signed shall be binding on CCCL.
(vii) Issuance of Bankers' Acceptances. Promptly following
receipt of a notice of borrowing by way of Bankers' Acceptances, the
Canadian Administrative Agent shall so advise the C$ Banks and shall
advise each C$ Bank of the face amount of each Bankers' Acceptance to
be accepted by it and the term thereof. The aggregate face amount of
Bankers' Acceptances to be accepted by a C$ Bank shall be determined
by the Canadian Administrative Agent by reference to the respective
Canadian Commitments of the C$ Banks, except that, if the face amount
of a Bankers' Acceptance, which would otherwise be accepted by a C$
Bank, would not be C$100,000 or an integral multiple thereof, such
face amount shall be increased or reduced by the Canadian
Administrative Agent in its sole and unfettered discretion to the
nearest integral multiple of C$100,000.
(viii) Acceptance of Bankers' Acceptances. Each Bankers'
Acceptance to be accepted by a C$ Bank shall be accepted at such
Bank's office referred to in its Addendum.
24
(ix) Purchase of Bankers' Acceptances. CCCL may require any
C$ Bank to purchase promptly, and in any event no later than two
Business Days following written notice by CCCL to the Canadian
Administrative Agent, from CCCL, at the Applicable BA Discount Rate,
any Bankers' Acceptance accepted by it and provide to the Canadian
Administrative Agent the BA Discount Proceeds for the account of
CCCL. The Acceptance Fee payable by CCCL to such Bank under Section
3.3(d) in respect of each Bankers' Acceptance accepted and purchased
by such Bank shall be set off against the BA Discount Proceeds
payable by such Bank under this Section 3.3(b)(ix).
(x) Sale of Bankers' Acceptances. Each C$ Bank may at any
time and from time to time hold, sell, rediscount or otherwise
dispose of any or all Bankers' Acceptances accepted and purchased by
it.
(xi) Waiver of Presentment and Other Conditions. CCCL waives
presentment for payment and any other defense to payment of any
amounts due to a C$ Bank in respect of a Bankers' Acceptance accepted
by it pursuant to this Agreement which might exist solely by reason
of such Bankers' Acceptance being held, at the maturity thereof, by
such Bank in its own right and CCCL agrees not to claim any days of
grace if such Bank as holder sues CCCL on the Bankers' Acceptances
for payment of the amount payable by CCCL thereunder.
(c) With respect to each Bankers' Acceptance, CCCL shall
give irrevocable telephone or written notice (or such other method of
notification as may be agreed upon between the Canadian Administrative Agent
and CCCL) to the Canadian Administrative Agent at or before 2:00 P.M., Toronto
time, two Business Days prior to the maturity date of such Bankers' Acceptance
followed by written confirmation electronically transmitted to the Canadian
Administrative Agent on the same day, of CCCL's intention to issue a Bankers'
Acceptance on such maturity date (a "Refunding Bankers' Acceptance") to
provide for the payment of such maturing Bankers' Acceptance (it being
understood that payments by CCCL and fundings by the C$ Banks in respect of
each maturing Bankers' Acceptance and the related Refunding Bankers'
Acceptance shall be made on a net basis reflecting the difference between the
face amount of such maturing Bankers' Acceptance and the BA Discount Proceeds
(net of the applicable Acceptance Fee) of such Refunding Bankers' Acceptance).
Any repayment of Bankers' Acceptances must be made at or before 12:00 noon,
Toronto time, on the respective maturity dates of such Bankers' Acceptances.
If CCCL fails to give such notice, CCCL shall be deemed to have repaid such
maturing Bankers' Acceptances with funds obtained by way of C$ R/C Loans
commencing on the maturity date of such maturing Bankers' Acceptances.
(d) An Acceptance Fee shall be payable by CCCL to each C$
Bank in advance (in the manner specified in Section 3.3(b)(ix)) upon the
issuance of a Bankers' Acceptance to be accepted by such Bank calculated at
the rate per annum equal to the Applicable Margin, such Acceptance Fee to be
calculated on the face amount of such Bankers' Acceptance and to be computed
on the basis of the number of days in the term of such Bankers' Acceptance.
Subject to the additional amounts payable under Section 3.3(e), the amount of
Acceptance Fees to be paid as specified above shall be the amount which would
be due and payable if the Canadian Utilization for the term of the relevant
Bankers' Acceptance was less than 50%.
(e) On the first Business Day following the last day of each
Utilization Period, CCCL shall pay to the Canadian Administrative Agent, for
the ratable benefit of the C$ Banks an additional amount on account of
Acceptance Fees in respect of each Bankers' Acceptance outstanding during such
Utilization Period equal to an amount calculated by multiplying:
25
(A) a fraction, the numerator of which is the number of days in
the term of the Bankers' Acceptance in such Utilization
Period and the denominator of which is the number of days in
the term of the Bankers' Acceptance; by
(B) the excess (if any) of (A) the amount of Acceptance Fees
which would have been payable in respect of such Bankers'
Acceptance had the Canadian Utilization at the time of the
issuance of such Bankers' Acceptance been the same as the
actual Canadian Utilization during such Utilization Period,
over (B) the amount of Acceptance Fees which actually were
paid in respect of such Bankers' Acceptance.
(f) Upon the occurrence of any Event of Default, and in
addition to any other rights or remedies of any C$ Bank and the Canadian
Administrative Agent hereunder, any C$ Bank or the Canadian Administrative
Agent as and by way of collateral security (or such alternate arrangement as
may be agreed upon by CCCL and such Bank or the Canadian Administrative Agent,
as applicable) shall be entitled to deposit and retain in an account to be
maintained by the Canadian Administrative Agent (bearing interest at the
Canadian Administrative Agent's rates as may be applicable in respect of other
deposits of similar amounts for similar terms) amounts which are received by
such Bank or the Canadian Administrative Agent from CCCL hereunder or as
proceeds of the exercise of any rights or remedies of any C$ Bank or the
Canadian Administrative Agent hereunder against CCCL, to the extent such
amounts may be required to satisfy any contingent or unmatured obligations or
liabilities of CCCL to the C$ Banks or the Canadian Administrative Agent, or
any of them hereunder.
3.4 C$ L/F Loans. (a) Subject to the terms and conditions
hereof, each C$ L/F Bank severally agrees to make liquidity loans (the "C$ L/F
Loans") to CCCL from time to time during the Commitment Period in accordance
with the procedures set forth in this Section 3.4. Amounts borrowed by CCCL
under this Section 3.4 may be repaid and, to but excluding the Termination
Date, reborrowed. All C$ L/F Loans shall at all times be C$ Prime Loans. CCCL
shall give the Canadian Administrative Agent irrevocable notice of any C$ L/F
Loans requested hereunder (which notice must be received by the Canadian
Administrative Agent prior to 12:00 noon, Toronto time, on the requested
Borrowing Date) specifying (A) the amount to be borrowed and (B) the requested
Borrowing Date. Upon receipt of such notice, the Canadian Administrative Agent
shall promptly notify each C$ L/F Bank thereof. Not later than 2:30 P.M.,
Toronto time, on the Borrowing Date specified in such notice each C$ L/F Bank
shall make the amount of its C$ L/F Loan available to the Canadian
Administrative Agent for the account of CCCL at the office of the Canadian
Administrative Agent set forth in Section 13.2 in funds immediately available
to the Canadian Administrative Agent. The proceeds of such borrowing will then
be made available to CCCL by the Canadian Administrative Agent crediting the
account of CCCL on the books of such office with the aggregate of the amounts
made available to the Canadian Administrative Agent by the C$ L/F Banks and in
like funds as received by the Canadian Administrative Agent. Each borrowing
pursuant to this Section 3.4 shall be in an aggregate principal amount of the
lesser of (i) C$5,000,000 or an integral multiple of C$100,000 in excess
thereof and (ii) the amount in C$ which has a US$ Equivalent equal to the then
aggregate Available Canadian Commitments. Notwithstanding anything to the
contrary contained in this Agreement, in no event may C$ L/F Loans be borrowed
under this Section 3.4 if, after giving effect thereto and the application of
the proceeds thereof, the Aggregate Canadian Extensions of Credit of any C$
Bank then outstanding would exceed such Bank's Canadian Commitment. CCCL shall
reimburse each C$ L/F Bank for any increased cost over and above the Canadian
Prime Rate incurred by such C$ L/F Bank in connection with obtaining funds
from the Bank of Canada, as a lender of last resort, with respect to any C$
L/F Loan made by such C$ L/F Bank. If a C$ L/F Bank becomes entitled to claim
any additional amounts pursuant to the preceding sentence, it shall promptly
notify CCCL, through the Canadian Administrative Agent, of the event by reason
of which it has become so entitled. A
26
certificate as to any such additional amounts payable submitted by a C$ L/F
Bank, through the Canadian Administrative Agent, to CCCL shall be conclusive
in the absence of manifest error.
(b) Notwithstanding the occurrence of any Default or Event
of Default or noncompliance with the conditions precedent set forth in Section
6, if any C$ L/F Loans shall remain outstanding at 10:00 A.M., Toronto time,
on the fourth Business Day following the Borrowing Date thereof and if by such
time on such fourth Business Day the Canadian Administrative Agent shall have
received neither (i) a notice of borrowing delivered pursuant to Section 3.2
requesting that C$ R/C Loans be made pursuant to Section 3.2 on the
immediately succeeding Business Day in an amount at least equal to the
aggregate principal amount of such C$ L/F Loans, nor (ii) any other notice
indicating CCCL's intent to repay such C$ L/F Loans with funds obtained from
other sources, the Canadian Administrative Agent shall be deemed to have
received a Notice of Borrowing from CCCL pursuant to Section 3.2 requesting
that C$ R/C Loans be made pursuant to Section 3.2 on such immediately
succeeding Business Day in an amount equal to the aggregate amount of such C$
L/F Loans, and the procedures set forth in Section 3.2 shall be followed in
making such C$ R/C Loans. The proceeds of such C$ R/C Loans shall be applied
to repay such C$ L/F Loans.
(c) If, for any reason, C$ R/C Loans may not be made
pursuant to Section 3.4(b) to repay C$ L/F Loans as required by such Section,
effective on the date such C$ R/C Loans would otherwise have been made, each
C$ Bank severally agrees that it shall unconditionally and irrevocably,
without regard to the occurrence of any Default or Event of Default, purchase
a participating interest in such C$ L/F Loans ("Unrefunded C$ L/F Loans") in
an amount equal to the amount of C$ R/C Loan which would otherwise have been
made by such Bank pursuant to Section 3.4(b). Each C$ Bank will immediately
transfer to the Canadian Administrative Agent, in immediately available funds,
the amount of its participation, and the proceeds of such participation shall
be distributed by the Canadian Administrative Agent to each C$ L/F Bank in
such amount as will reduce the amount of the participating interest retained
by such C$ L/F Bank in its C$ L/F Loans to the amount of the C$ R/C Loan which
would otherwise have been made pursuant to Section 3.4(b). Each C$ Bank shall
share on a pro rata basis (calculated by reference to its participating
interest in such C$ L/F Loans) in any interest which accrues thereon and in
all repayments thereof. All payments in respect of Unrefunded C$ L/F Loans and
participations therein shall be made in accordance with Section 4.8.
3.5 Conversion Option. Subject to the provisions of this
Agreement, CCCL may, prior to the Termination Date, effective on any Business
Day, convert, in whole or in part, C$ R/C Loans into Bankers' Acceptances or
vice versa upon giving to the Canadian Administrative Agent prior irrevocable
telephone or written notice within the notice period and in the form which
would be required to be given to the Canadian Administrative Agent in respect
of the category of C$ Loan into which the outstanding C$ Loan is to be
converted in accordance with the provisions of Section 3.2 or 3.3, as
applicable, followed by written confirmation on the same day, provided that:
(A) no C$ R/C Loan may be converted into a Bankers' Acceptance
when any Event of Default has occurred and is continuing and
the Canadian Administrative Agent has or the Required C$
Banks have determined in its or their sole discretion that
such conversion is not appropriate;
(B) each conversion to Bankers' Acceptances shall be for a
minimum aggregate amount of C$10,000,000 (and whole
multiples of C$100,000 in excess thereof) and each
conversion to C$ R/C Loans shall be in a minimum aggregate
amount of C$5,000,000; and
27
(C) Bankers' Acceptances may be converted only on the maturity
date of such Bankers' Acceptances and, provided that, if
less than all Bankers' Acceptances are converted, then after
such conversion not less than C$10,000,000 (and whole
multiples of C$100,000 in excess thereof) shall remain as
Bankers' Acceptances.
3.6 Currency Fluctuations, etc. (a) No later than 2:00 P.M.,
Toronto time, on each Canadian Calculation Date, the Canadian Administrative
Agent shall (i) determine the Canadian Exchange Rate as of such date and (ii)
give notice thereof to CFC and CCCL. The Canadian Exchange Rate so determined
shall become effective on the first Business Day immediately following the
relevant Canadian Calculation Date (a "Canadian Reset Date") and shall remain
effective until the next succeeding Canadian Reset Date.
(b) No later than 2:00 P.M., New York City time, on each
Canadian Reset Date and each Borrowing Date in respect of C$ Loans, the
Canadian Administrative Agent shall (i) determine the US$ Equivalent of the C$
Loans then outstanding (after giving effect to any C$ Loans to be made or
repaid on such date) and (ii) notify CFC and CCCL of the results of such
determination.
(c) If, on any Canadian Reset Date (after giving effect to
(i) any C$ Loans to be made or repaid on such date and (ii) any increase or
decrease in any Canadian Commitment pursuant to Section 13.10 effective on
such date of which the Canadian Administrative Agent has received notice), the
Aggregate Canadian Extensions of Credit of any C$ Bank exceed the Canadian
Commitment of such Bank, then, within ten Business Days after notice thereof
from the Canadian Administrative Agent, (i) CCCL shall reduce the aggregate C$
Loans and/or (ii) CFC shall increase the Canadian Commitments pursuant to
Section 13.10 in an amount such that, after giving effect thereto, the
Aggregate Canadian Extensions of Credit of each C$ Bank shall be equal to or
less than the Canadian Commitment of such Bank.
(d) The Canadian Administrative Agent shall promptly furnish
the Administrative Agent and each affected C$ Bank with a copy of any notice
delivered to CFC or CCCL pursuant to this Section 3.6.
(e) Notwithstanding the foregoing provisions of this Section
3.6, after the initial Canadian Calculation Date, the Canadian Administrative
Agent may at its option suspend the resetting of the Canadian Exchange Rate
pursuant to Section 3.6(a) and the making of the determinations referred to in
Sections 3.6(b) and 3.6(c) during any period when the sum of the Aggregate
Canadian Extensions of Credit of all C$ Banks, calculated using the Canadian
Exchange Rate effective as of the last Canadian Reset Date prior to such
suspension, is less than 50% of the aggregate Canadian Commitments then in
effect.
SECTION 4. GENERAL PROVISIONS
4.1 Evidence of Debt. (a) Each Bank shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Facility Borrower to the appropriate lending office of
such Bank resulting from each Facility Loan made by such lending office of
such Bank from time to time, including the amounts of principal and interest
payable and paid to such lending office of such Bank from time to time under
this Agreement.
(b) Each Agent shall maintain a Register pursuant to Section
13.7(c), and a subaccount for each relevant Bank, in which Register and
subaccounts (taken together) shall be
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recorded (i) the amount of each relevant Facility Loan made hereunder, whether
such Loan is, as applicable, a U.S. R/C Loan, a U.S. L/F Loan, a C$ R/C Loan,
a Bankers' Acceptance or a C$ L/F Loan, the Type of each U.S. R/C Loan made
and the Interest Period applicable to any Eurodollar Loan, (ii) the amount of
any principal or interest due and payable or to become due and payable from
the relevant Facility Borrower to each relevant Bank hereunder and (iii) the
amount of any sum received by such Agent hereunder from the relevant Facility
Borrower and each relevant Bank's share thereof.
(c) The entries made in the Registers and accounts
maintained pursuant to paragraphs (a) and (b) of this Section 4.1 shall, to
the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the relevant Facility Borrower
therein recorded; provided, that the failure of any Bank or either Agent to
maintain such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of each Facility
Borrower to repay the Facility Loans (and all other amounts owing with respect
thereto) made to such Facility Borrower in accordance with the terms of this
Agreement.
4.2 Repayment of Loans. The relevant Facility Borrower shall
repay all outstanding Facility Loans (together with all accrued unpaid
interest thereon) on the last day of the Commitment Period.
4.3 Interest Rate and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period therefor on
the unpaid principal amount thereof at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the Applicable
Margin.
(b) Each Base Rate Loan shall bear interest for each day on
the unpaid principal amount thereof, at a rate per annum equal to the Base
Rate determined for such day.
(c) Each C$ Prime Loan shall bear interest for each day on
the unpaid principal amount thereof, at a rate per annum equal to the Canadian
Prime Rate determined for such day.
(d) If all or a portion of (i) the principal amount of any
Facility Loan, (ii) any interest payable thereon or (iii) any Facility Fee,
Acceptance Fee or other amount payable hereunder 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 (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section 4.3 plus 1% or (y) in the
case of any overdue interest, Facility Fee, Acceptance Fee or other amount,
the rate described in Section 4.3(b) (in the case of amounts payable in
Dollars) or 4.3(c) (in the case of amounts payable in C$) plus 1%, in each
case from the date of such non-payment to (but excluding) the date on which
such amount is paid in full (as well after as before judgment).
(e) Interest shall be payable in arrears (i) with respect to
Eurodollar Loans having an Interest Period of three months or less, on the
last day of such Interest Period, (ii) with respect to Eurodollar Loans having
an Interest Period longer than three months, on each day which is three
months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period, (iii) with respect to Base
Rate Loans and C$ Prime Loans (other than L/F Loans which do not constitute
Unrefunded L/F Loans), on the last day of each March, June, September and
December, and (iv) with respect to all Facility Loans, upon each repayment,
prepayment or conversion thereof; provided that interest accruing pursuant to
Section 4.3(d) shall be payable on demand. Interest payable in respect of U.S.
Loans shall be payable in Dollars by CFC and interest payable in respect of C$
Loans shall be payable in C$ by CCCL (subject to Section 12).
29
(f) The amount of interest on any Eurodollar Loans to be
paid on any date as specified in paragraph (e) above shall in each case be
determined under the assumption that the U.S. Utilization for the Utilization
Period(s) during which such interest accrued was less than 50%. On the first
Business Day following the last day of each Excess U.S. Utilization Period,
CFC shall pay to the Administrative Agent, for the benefit of the US$ Banks,
an additional amount of interest equal to the excess (if any) of (i) the
amount of interest which accrued during such U.S. Utilization Period after
giving effect to the actual U.S. Utilization for such Utilization Period
(whether or not such accrued interest was actually payable during such
Utilization Period) over (ii) the amount of interest which would have accrued
during such Utilization Period if the U.S. Utilization during such Utilization
Period had been less than 50%.
4.4 Lending Procedures. (a) Unless the relevant Agent shall
have received notice from a Bank prior to a Borrowing Date that such Bank will
not make available to such Agent such Bank's share of the borrowing requested
to be made on such Borrowing Date, such Agent may assume that such Bank has
made its share of such borrowing available to such Agent on such Borrowing
Date, and such Agent may, in reliance upon such assumption, make available to
the relevant Facility Borrower on such Borrowing Date a corresponding amount.
If such Agent does, in such circumstances, make available to such Facility
Borrower such amount, such Bank shall within three Business Days following
such Borrowing Date make its share of such borrowing available to such Agent,
together with interest thereon for each day from and including such Borrowing
Date that its share of such borrowing was not made available, to but excluding
the date such Bank makes its share of such borrowing available to such Agent,
at the Effective Federal Funds Rate (in the case of U.S. Loans) or at the then
effective Bank Rate (in the case of C$ Loans). If such amount is so made
available, such payment to such Agent shall constitute such Bank's Loan on
such Borrowing Date for all purposes of this Agreement. If such amount is not
so made available to the relevant Agent, then such Agent shall notify such
Facility Borrower of such failure, and, on the fourth Business Day following
such Borrowing Date, such Facility Borrower shall pay to such Agent such
amount, together with interest thereon for each day that such Facility
Borrower had the use of such ratable portion at the Effective Federal Funds
Rate (in the case of U.S. Loans) or at the then effective Bank Rate (in the
case of C$ Loans). Nothing contained in this Section 4.4(a) shall relieve any
Bank which has failed to make available its share of any borrowing hereunder
from its obligation to do so in accordance with the terms hereof.
(b) The failure of any Bank to make the Facility Loan to be
made by it on any Borrowing Date shall not relieve any other Bank of its
obligation, if any, hereunder to make its Loan on such Borrowing Date, but no
Bank shall be responsible for the failure of any other Bank to make the
Facility Loan to be made by such other Bank on such Borrowing Date.
4.5 Facility Fees. CFC agrees to pay to the Administrative
Agent, for the account of each US$ Bank, in Dollars, a facility fee (the
"Facility Fee") for each day from and including the Effective Date to but
excluding the later of (a) the last day of the Commitment Period and (b) the
date on which all of the Loans shall have been paid in full (such later date,
the "Final Date"). Such fee shall be payable quarterly in arrears on (i) the
first Business Day of each January, April, July and October (for the
three-month period (or portion thereof) ended on the last day of the
immediately preceding month) and (ii) on the Final Date (for the period ended
on such date for which no payment has been received pursuant to clause (i)
above) and shall be computed for each day during such period at a rate per
annum equal to the Facility Fee Rate in effect on such day on the US$ Bank
Combined Commitment of such Bank in effect on such day.
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4.6 Termination or Reduction of Commitments. CFC shall have
the right, upon not less than five Business Days' notice to each Agent, to
terminate the Commitments or, from time to time, to reduce the amount of the
U.S. Commitments (so long as, after giving effect thereto and any
contemporaneous prepayment of the Loans, the Aggregate U.S. Extensions of
Credit of each US$ Bank shall be no greater than such Bank's U.S. Net
Commitment) or reduce the amount of the Canadian Commitments (so long as,
after giving effect thereto and any contemporaneous prepayment of the C$
Loans, the Aggregate Canadian Extensions of Credit of each C$ Bank shall be no
greater than such Bank's Canadian Commitment). Upon receipt of such notice the
Administrative Agent shall promptly notify each relevant Bank thereof. Any
such reduction shall be in an amount of at least $100,000,000 (in the case of
the U.S. Commitments) or $10,000,000 (in the case of the Canadian Commitments)
and shall reduce permanently the amount of the affected Commitments then in
effect. Any termination of the Commitments shall be accompanied by prepayment
in full of the Loans, together with accrued interest thereon to the date of
such prepayment.
4.7 Optional Prepayments. Each Facility Borrower may at any
time and from time to time prepay the Facility Loans made to it hereunder, in
whole or in part, without premium or penalty, upon prior notice to the
relevant Agent (which notice must be received by the relevant Agent prior to
10:00 A.M., Local Time, (i) three Business Days prior to the repayment date in
the case of Eurodollar Loans and (ii) one Business Day prior to the repayment
date otherwise) specifying the date and amount of prepayment, and the category
or categories of Facility Loan to be prepaid; provided that, in the case of
any prepayment of L/F Loans, such notice may be delivered to the relevant
Agent as late as, but no later than 12:00 noon, Local Time, on the date of
such prepayment and provided, further, that each prepayment of Eurodollar
Loans on a day other than the last day of the related Interest Period shall
require the payment of any amounts payable by CFC pursuant to Section 4.12.
Upon receipt of any such notice, the relevant Agent shall promptly notify each
relevant Bank thereof. Any such notice shall be irrevocable, and the payment
amount specified in such notice shall be due and payable on the date
specified, together with accrued interest to such date on the amount prepaid.
Partial prepayments shall be in an aggregate principal amount of $25,000,000
or a multiple of $1,000,000 in excess thereof (in the case of U.S. Loans) and
C$5,000,000 or a multiple of $1,000,000 in excess thereof (in the case of C$
Prime Loans). Notwithstanding anything to the contrary above, Facility Loans
consisting of Bankers' Acceptances may not be prepaid pursuant to this Section
4.7.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of
U.S. R/C Loans or U.S. L/F Loans shall be made pro rata according to the then
existing Available U.S. Commitments of the US$ Banks or the U.S. L/F Banks,
respectively. Each borrowing of C$ R/C Loans or C$ L/F Loans shall be made pro
rata according to the then existing Canadian Commitments of the C$ Banks or
the C$ L/F Banks, respectively. Each payment of Facility Fees (except as a
result of an increase in a particular Bank's Facility Fee pursuant to Section
4.11(a)) shall be made pro rata according to the amounts of the then existing
US$ Bank Combined Commitments of the US$ Banks. Any reduction of the amount of
the Commitments of the Banks hereunder (except for the termination or
reduction of a particular Bank's Commitment pursuant to Section 4.11(a)) shall
be made pro rata according to the amounts of the then existing relevant
Commitments. Each payment (including each prepayment) by a Facility Borrower
on account of principal of and interest on (except for payments to a
particular Bank pursuant to Section 2.6, 4.10, 4.11, 4.12 or 4.13) any
category of Facility Loan (other than Eurodollar Loans) shall be made on a pro
rata basis according to the amounts of the then outstanding Facility Loans of
such type of the relevant Banks. Each payment (including each prepayment) by
CFC on account of principal of and interest on Eurodollar Loans designated by
CFC to be applied to a particular Eurodollar Tranche shall be made pro rata
according to the respective outstanding principal amounts of such Eurodollar
Loans then held by the US$ Banks. All payments (including prepayments) by the
relevant Facility Borrower hereunder on account of principal, interest, fees
and
31
other amounts shall be made without setoff or counterclaim to the relevant
Agent for the account of the relevant Banks at the office of the relevant
Agent referred to in Section 13.2 in Dollars or C$, as applicable, in
immediately available funds. In the case of amounts relating to U.S. Loans,
the Administrative Agent shall promptly distribute such payments to each US$
Bank entitled to receive a portion thereof by causing such Bank's portion of
such payment to be deposited in such Bank's Clearing Account. If any payment
hereunder (other than a payment in respect of a Eurodollar Loan) becomes due
and payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another calendar
month in which event such payment shall be made on the immediately preceding
Business Day. In the case of any extension of any payment of principal
pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension. The provisions of the first
five sentences of this Section 4.8(a) shall not apply to any borrowing or
prepayment made pursuant to Section 13.10.
(b) Unless the relevant Agent shall have received notice
from the relevant Facility Borrower prior to the date on which any payment is
due to the relevant Banks hereunder that such Facility Borrower will not make
such payment in full, such Agent may assume that such Facility Borrower has
made such payment in full to such Agent on such date, and such Agent may, in
reliance upon such assumption, cause to be distributed to each such Bank on
such due date an amount equal to the amount then due to such Bank. If and to
the extent such Facility Borrower shall not have so made such payment in full
to such Agent, each such Bank shall repay to such Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from and including the date such amount is distributed to such Bank to but
excluding the date such Bank repays such amount to such Agent at the Effective
Federal Funds Rate (in the case of U.S. Loans) or the then effective Bank Rate
(in the case of C$ Loans) for each such day. Nothing contained in this Section
4.8(b) shall relieve either Facility Borrower from its obligations to make
payments on all amounts due hereunder in accordance with the terms hereof.
4.9 Computation of Interest and Fees. (a) Interest (other
than interest calculated on the basis of the Prime Rate or the Canadian Prime
Rate) shall be calculated on the basis of a 360-day year for the actual days
elapsed. Facility Fees, Acceptance Fees and interest calculated on the basis
of the Prime Rate or the Canadian Prime Rate shall be calculated on the basis
of a 365- (or 366-, as the case may be) day year for the actual days elapsed.
The relevant Agent shall, as soon as practicable, notify the relevant Facility
Borrower and the relevant Banks of each determination of the Eurodollar Rate
or the Applicable BA Discount Rate. Any change in the interest rate in respect
of a Facility Loan or in any Facility Fee or Acceptance Fee resulting from a
change in the Base Rate, the Canadian Prime Rate, the Applicable Margin or
Status shall become effective as of the opening of business on the day on
which a change in the Base Rate or Canadian Prime Rate shall become effective
or such Applicable Margin or Status changes as provided herein, as the case
may be. The relevant Agent shall notify the relevant Facility Borrower and the
relevant Banks of the effective date and the amount of each such change in the
Base Rate or Canadian Prime Rate.
(b) Each determination, pursuant to and in accordance with
any provision of this Agreement, of the Eurodollar Rate or the Applicable BA
Discount Rate by the relevant Agent, and each determination by a Reference
Bank of a rate with respect to a Eurodollar Loan or a Bankers' Acceptance to
be notified to the relevant Agent pursuant to the definition of "Eurodollar
Rate" or "Applicable BA Discount Rate", as the case may be, shall be
conclusive and binding on the Facility Borrowers and the Banks in the absence
of manifest error. The relevant Agent shall, at the request of
32
the relevant Facility Borrower, deliver to such Facility Borrower a statement
showing any quotations given by the relevant Reference Banks and the
computations used by such Agent in determining any Eurodollar Rate or
Applicable BA Discount Rate.
(c) If any Reference Bank's relevant Commitment shall
terminate (otherwise than on termination of all the Commitments) or, as the
case may be, the relevant Facility Loans made by it hereunder are assigned, or
prepaid or repaid (otherwise than on the prepayment or repayment of the
relevant Facility Loans among the Banks) for any reason whatsoever, such
Reference Bank shall thereupon cease to be a Reference Bank, and if, as a
result of the foregoing, there shall be only one Reference Bank of a
particular category remaining, then the relevant Agent (after consultation
with the relevant Facility Borrower and the relevant Banks) shall, as soon as
practicable thereafter, by notice to the Facility Borrowers and the relevant
Banks, designate another Bank that is willing to act as a Reference Bank so
that there shall at all times be at least two Reference Banks of each
category. In acting so to designate another Bank to serve as a Eurodollar
Reference Bank, the Administrative Agent will use its best efforts to ensure
that one Eurodollar Reference Bank will, at all times, be a US$ Bank that has
its headquarters office located outside the United States.
(d) If any of the Reference Banks shall be unable or shall
otherwise fail to provide notice of a rate to the relevant Agent upon its
request, the Eurodollar Rate or Applicable BA Discount Rate, as applicable,
shall be determined on the basis of rates provided in notices of the remaining
relevant Reference Banks.
4.10 Increased Costs. In the event that any law, regulation,
treaty or directive or any change therein or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority enacted or made subsequent to the date hereof:
(a) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for
the account of, advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Bank; or
(b) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining advances or extensions of credit hereunder to either
Facility Borrower or to reduce any amounts receivable hereunder from either
Facility Borrower (such increase in cost or reduction in amounts receivable,
"Increased Costs") then, in any such case, such Facility Borrower shall
promptly pay to the relevant Agent for the account of such Bank, upon the
written demand of such Bank to such Facility Borrower (with a copy to the
relevant Agent), so long as such Increased Costs are not otherwise included in
the amounts required to be paid to such Bank pursuant to Section 2.6(b), 4.11,
4.12 or 4.13, any additional amounts necessary to compensate such Bank for
such Increased Costs which such Bank deems to be material as determined by
such Bank with respect to its Eurodollar Loans or Bankers' Acceptances, as the
case may be. If a Bank becomes entitled to claim any additional amounts
pursuant to this Section 4.10, it shall promptly notify the relevant Facility
Borrower, through the relevant Agent, of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by a Bank, through the relevant
Agent, to the relevant Facility Borrower shall be conclusive in the absence of
manifest error.
33
4.11 Changes in Capital Requirements. (a) In the event that,
in the opinion of counsel for any Bank (which may, in the discretion of such
Bank, be such Bank's internal counsel), compliance with any law, rule,
regulation or guideline, or any change therein or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or Governmental
Authority enacted or made subsequent to the date hereof shall affect the
amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and the amount of such capital that is
required or expected to be maintained is increased by or based upon the
Commitment of such Bank under this Agreement or any participation agreement
entered into pursuant to Section 13.7, as applicable (such event, a "Change in
Law"), such affected Bank shall notify CFC and the Administrative Agent within
180 days after such affected Bank shall have obtained actual knowledge of the
costs associated with its compliance with such Change in Law (but in no event
later than 365 days after such Bank is first required to comply with such
Change in Law). At the time of such notification such affected Bank shall
provide CFC with a written statement setting forth the amount that would
adequately compensate such affected Bank for the costs associated with its
compliance with such Change in Law and setting forth in reasonable detail the
assumptions upon which such affected Bank calculated such amount, and a copy
of the opinion of counsel referred to in the preceding sentence. Such affected
Bank shall allocate to the Facility Borrowers the costs associated with such
Change in Law in such a way that the proportion of (i) such costs that are
allocated to the Facility Borrowers to (ii) the total of such costs of such
affected Bank associated with such Change in Law as it relates to all
commitments of such Bank to its customers of similar creditworthiness as the
Facility Borrowers, is substantially the same as the proportion of (i) the
Commitment of such affected Bank under this Agreement or such participation
agreement to (ii) the total of all commitments by such affected Bank to its
customers of similar creditworthiness as the Facility Borrowers. CFC and such
affected Bank shall thereafter negotiate in good faith an agreement to
increase that portion of the Facility Fee payable to such affected Bank under
Section 4.5 to a level, which, in the opinion of such affected Bank, will
adequately compensate such affected Bank for such costs. If such increase is
approved in writing by CFC within 90 days from the date of the notice to CFC
from such affected Bank, the Facility Fee payable by CFC shall, effective from
the date of such Change in Law (but subject to the last sentence of this
Section 4.11(a)) include the amount of such agreed increase, and CFC will so
notify the Administrative Agent. If CFC and such affected Bank are unable to
agree on such an increase within 90 days from the date of the notice to CFC
from such affected Bank, CFC shall by written notice to such affected Bank
within 120 days from the date of the aforesaid notice to CFC from such
affected Bank, elect either to (a) terminate the Commitment of such affected
Bank (each such Bank, a "Terminated Bank") (subject to the last sentence of
this Section 4.11(a)) or (b) (subject to the next to last sentence of this
Section 4.11(a)) increase the Facility Fee payable to such affected Bank by
the amount requested by such affected Bank. Without limiting the foregoing, if
CFC elects to take the action described in clause (b) of the preceding
sentence, it may simultaneously therewith reduce the Commitment of such
affected Bank by an amount chosen by CFC. If CFC fails to provide notice to
such affected Bank as described in the second preceding sentence by such 120th
day, CFC shall be deemed to have taken the action described in clause (b) of
such second preceding sentence. CFC (A) may from time to time after such 120th
day reduce the compensation to be received pursuant to this Section 4.11(a) by
any affected Bank as a result of any Change in Law, to the average
compensation (the "Average Compensation") CFC has agreed, as provided above,
to pay the affected Banks as a result of such Change in Law (such average
compensation to be measured by a percentage of the aggregate Commitments of
such affected Banks) and (B) shall pay to each Terminated Bank, on the date
the Commitment of such Bank is terminated, an amount equal to the excess, if
any, of (i) the lesser of (x) the aggregate Facility Fee that would have been
payable to such Bank, from the date of such Terminated Bank's notice to CFC
pursuant to this Section 4.11(a) to the date the Commitment of such Terminated
Bank is terminated, had such Facility Fee been determined by reference to the
Average Compensation and (y)
34
the aggregate Facility Fee that would have been payable to such Bank during
such period had such Facility Fee been increased by an amount necessary to
adequately compensate such Bank (as determined by such Bank in accordance with
the applicable provisions of this Section 4.11(a)) for the costs attributable
to the relevant Change in Law over (ii) the aggregate Facility Fee actually
paid to such Bank during such period.
(b) On the day the Commitment of a Terminated Bank is
terminated pursuant to Section 4.11(a), CFC or the relevant Subsidiary
Borrower, as applicable, shall (i) repay all Loans and other amounts
(including accrued interest and Facility Fees) owing to such Terminated Bank,
(ii) be liable to such Terminated Bank under Section 4.12 if any Eurodollar
Loans owing to such Terminated Bank shall be repaid other than on the last day
of the Interest Period relating to such Eurodollar Loan, and (iii) in the case
of CCCL, pay to such Terminated Bank an amount equal to the maximum aggregate
amount of CCCL's obligations pursuant to any Bankers' Acceptance accepted by
such Terminated Bank, which amount shall be held by such Terminated Bank in an
interest bearing account as collateral security for CCCL's obligations to such
Terminated Bank with respect to any such Bankers' Acceptance, and CCCL shall
execute in favor of such Terminated Bank a cash collateral agreement (or such
alternate arrangement as may be agreed upon by CCCL and such Terminated Bank)
in form and substance satisfactory to such Terminated Bank in respect of such
amount.
(c) Upon the occurrence of any Change in Law each Bank whose
Commitment hereunder is affected by such Change in Law shall transfer its
Commitment to another branch office (or, if such Bank so elects, to an
affiliate) of such Bank, provided that such transfer shall be made only if
such Bank shall have determined in good faith (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) that
(i) on the basis of existing circumstances, such transfer will avoid the
increased costs resulting from such Change in Law and will not result in any
additional costs, liabilities or expenses to such Bank (unless CFC agrees to
pay such additional costs, liabilities or expenses of such Bank) and (ii) such
transfer is otherwise consistent with the interests of such Bank.
4.12 Indemnity. Each of CFC and CCCL, as applicable, agrees
to indemnify each Bank and to hold such Bank harmless from any loss or expense
(including, but not limited to, any such loss or expense arising from interest
or fees payable by such Bank to lenders of funds obtained by it in order to
maintain its Eurodollar Loans hereunder, but excluding loss of the Applicable
Margin), which such Bank may sustain or incur as a consequence of (a) failure
by either Facility Borrower in making any payment when due (whether by
acceleration or otherwise) of the principal amount of or interest on the
Eurodollar Loans or Bankers' Acceptances of such Bank, (b) failure by either
Facility Borrower to make a borrowing consisting of Eurodollar Loans or
Bankers' Acceptances, or a conversion into or continuation of Eurodollar Loans
or Bankers' Acceptances, after such Facility Borrower has given a notice
requesting or accepting the same in accordance with the provisions of this
Agreement, (c) failure by either Facility Borrower in making any prepayment
after such Facility Borrower has given a notice in accordance with this
Agreement and (d) a payment or prepayment of a Eurodollar Loan on a day that
is not the last day of the Interest Period with respect thereto. In the case
of Eurodollar Loans, such indemnification may include an amount equal to the
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such payment, prepayment or of such failure to borrow,
convert or continue to the last day of the relevant Interest Period (or
proposed Interest Period), in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin)
over (ii) the amount of interest (as reasonably determined by such Bank) which
would have accrued to such Bank on such amount by placing such amount on
deposit for a
35
comparable period with leading banks in the interbank eurodollar market. The
agreements in this Section 4.12 shall survive the payment of the Facility
Loans and all other amounts payable hereunder.
4.13 Taxes. (a) In the event that the adoption of any law,
regulation, treaty or directive or any change therein or in the interpretation
or application thereof, in each case after the date hereof, shall require any
Taxes (as hereinafter defined) to be withheld or deducted from any amount
payable to any Bank under this Agreement, upon notice by such Bank to the
relevant Facility Borrower (with a copy to the relevant Agent) to the effect
that (i) as a result of the adoption of such law, rule, regulation, treaty or
directive or a change therein or in the interpretation thereof, Taxes are
being withheld or deducted from amounts payable to such Bank under this
Agreement and (ii) such Bank has taken all action required to be taken by it
to avoid the imposition of such Taxes pursuant to paragraph (c) of this
Section 4.13 prior to demanding indemnification under this paragraph (a), such
Facility Borrower will pay to the relevant Agent for the account of such Bank
additional amounts so that such additional amounts, together with amounts
otherwise payable under this Agreement, will yield to such Bank, after
deduction from such increased amount of all Taxes required to be withheld or
deducted therefrom, the amount stated to be payable under this Agreement. The
term "Taxes" shall mean all net income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, imposed, levied, collected,
withheld or assessed by any country (or by any political subdivision or taxing
authority thereof or therein), excluding, with respect to any Bank, net income
and franchise taxes imposed with respect to net income of any country (or any
political subdivision or taxing authority thereof or therein) where such Bank
is organized or, in respect of such Bank's Eurodollar Loans, by the country
(or any political subdivision or tax authority thereof or therein) where such
Bank's Eurodollar Loans are booked and, in respect of such Bank's Base Rate
Loans, by the country (or any political subdivision or tax authority thereof
or therein) where such Bank's Base Rate Loans are booked (such excluded taxes,
"Other Taxes"). If the relevant Facility Borrower fails to pay any Taxes when
due following notification by any Bank as provided above, such Facility
Borrower shall indemnify such Bank for any incremental taxes, interest or
penalties that may become payable by any Bank as a result of any such failure
by such Facility Borrower to make such payment. Either Facility Borrower may,
upon payment by such Facility Borrower to any Bank claiming indemnification
under this paragraph (a) of any amount payable by such Facility Borrower to
such Bank, elect by not less than four Business Days' prior written notice to
such Bank to terminate the Commitment of such Bank and prepay or cash
collateralize (in the case of Bankers' Acceptances) the outstanding Facility
Loans of such Bank.
(b) Each Bank that is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to CFC
and the Administrative Agent (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or any successor applicable form,
as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or
any successor form. Each such Bank also agrees to deliver to CFC and the
Administrative Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms or other manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to CFC, and such extensions or renewals
thereof as may reasonably be requested by CFC or the Administrative Agent,
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank so advises CFC and the Administrative
Agent. Such Bank shall certify (i) in the case of Form 1001 or 4224, that it
is entitled to receive payments under this Agreement without deduction or
36
withholding of any United States federal income taxes and (ii) in the case of
a Form W-8 or W-9, that it is entitled to an exemption from United States
backup withholding tax.
(c) No Bank may request indemnification for any Taxes from
either Facility Borrower under paragraph (a) of this Section 4.13 to the
extent that such Taxes would have been avoided or reduced by such Bank's
transfer of its Facility Loans affected by such event to another office of
such Bank (or to an affiliate of such Bank), by such Bank's properly claiming
the benefit of any exemption from or reduction of such Taxes (whether provided
by statute, treaty or otherwise), including, without limitation, by delivering
the forms required by paragraph (b) of this Section 4.13, or by such Bank's
taking any other action which in its judgment is reasonable to avoid or reduce
such Taxes, provided that such Bank shall not be required to (i) take any
action which in the reasonable judgment of such Bank could directly or
indirectly result in any increased cost or expense or in any loss of
opportunity to such Bank unless the relevant Facility Borrower shall have
provided to such Bank indemnity or reimbursement therefor in form and
substance reasonably satisfactory to such Bank or (ii) claim or apply any tax
credit against such Taxes.
(d) Within 30 days after the payment by either Facility
Borrower of any Taxes withheld or deducted from any amount payable to any Bank
under this Agreement, and irrespective of whether such Bank is entitled to
demand indemnification in respect thereof under paragraph (a) above, such
Facility Borrower will furnish to such Bank (with a copy to the relevant
Agent), the original or a certified copy of a receipt evidencing payment
thereof.
4.14 Use of Proceeds. The proceeds of the Facility Loans
shall be used by each Facility Borrower for general corporate purposes.
4.15 Replacement of Banks. CFC shall be permitted to replace
any Bank which (a) requests reimbursement for amounts owing pursuant to
Section 2.6, 4.10, 4.11, 4.13 or 13.6(c)(i) or (b) defaults in its obligation
to make Facility Loans, with a replacement Commercial Bank; provided that (i)
such replacement does not conflict with any Requirement of Law, (ii) no Event
of Default shall have occurred and be continuing at the time of such
replacement, (iii) the relevant Facility Borrower or Foreign Subsidiary
Borrower shall repay (or the replacement Commercial Bank shall purchase, at
par) all Loans (other than Bankers' Acceptances) and other amounts (including
accrued interest) owing to such replaced Bank concurrently with such
replacement, (iv) in the case of any replaced C$ Banks, (x) CCCL shall pay to
such replaced Bank an amount equal to the maximum aggregate amount of CCCL's
obligations pursuant to any Bankers' Acceptance accepted by such replaced
Bank, which amount shall be held by such replaced Bank in an interest bearing
account as collateral security for CCCL's obligations to such replaced Bank
with respect to such Bankers' Acceptance, and CCCL shall execute in favor of
such replaced Bank a cash collateral agreement (or such alternate arrangement
as may be agreed upon by CCCL and such replaced Bank) in form and substance
satisfactory to such replaced Bank in respect of such amount and (y) CCCL
shall give the Canadian Administrative Agent notice of the provision of any
such collateral security, (v) CFC shall be liable to such replaced Bank under
Section 4.12 if any Eurodollar Loan owing to such replaced Bank shall be
prepaid (or purchased) other than on the last day of the Interest Period
relating thereto, (vi) the replacement Commercial Bank, if not already a Bank,
and the terms and conditions of such replacement, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Bank shall be
obligated to make such replacement in accordance with the provisions of
Section 13.7 (provided that CFC shall be obligated to pay the registration and
processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Facility Borrowers shall pay all
additional amounts (if any) required pursuant to Section 2.6, 4.10, 4.11, 4.13
or 13.6(c)(i), as the case may be, (ix) any replacement of a Bank which
requests reimbursement for amounts owing pursuant to Section 13.6(c)(i)
37
shall apply only to such Bank in its capacity as a C$ Bank, and (x) any such
replacement shall not be deemed to be a waiver of any rights which the
Facility Borrowers, the Foreign Subsidiary Borrowers, any Agent or any other
Bank shall have against the replaced Bank.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement
and to make the Facility Loans herein provided for, CFC and, to the extent
applicable, CCCL, hereby represents and warrants to each Bank that:
5.1 Financial Condition. The consolidated balance sheet of
CFC and its Subsidiaries as at December 31, 1994, and the related consolidated
statements of net earnings and cash flows for the fiscal year ended on such
date, certified by Deloitte & Touche, copies of which have been delivered to
each Bank, present fairly the consolidated financial position of CFC and its
Subsidiaries as at such date, and the consolidated results of their operations
and cash flows for the fiscal year then ended. The unaudited consolidated
balance sheet of CFC and its Subsidiaries as at March 31, 1995, and the
related consolidated statements of net earnings and cash flows for the
three-month period ended on such date, certified by a Responsible Officer,
copies of which have been delivered to each Bank, present fairly the
consolidated financial condition of CFC and its Subsidiaries as at such date,
and the consolidated results of their operations for the three-month period
then ended (subject to normal year-end audit adjustments). Such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP. As at March 31, 1995, neither CFC nor any of
its Subsidiaries had any asset, liability, contingent obligation, liability
for taxes, long-term lease or unusual forward or long-term commitment material
to the financial condition of CFC and its Subsidiaries taken as a whole, which
was not reflected in the foregoing statements or in the notes thereto.
5.2 No Change. Between December 31, 1994 and the Effective
Date there has been no material adverse change in the business, operations or
financial condition of CFC and its Subsidiaries taken as a whole.
5.3 Corporate Existence. Each Facility Borrower (a) is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its organization, and (b) is duly qualified as a
foreign corporation to do business and is in good standing in each of the
jurisdictions in which the character of the properties owned or held under
lease by it or the nature of business transacted by it makes such
qualification necessary, except in the case of this clause (b) to the extent
that the failure to be so qualified or in good standing would not have a
material adverse effect on the business, operations or financial condition of
CFC and its Subsidiaries taken as a whole.
5.4 Corporate Authorization; No Violation. The execution,
delivery and performance by each Facility Borrower of this Agreement are
within the corporate powers of such Facility Borrower, have been duly
authorized by all necessary corporate action, and do not contravene any
Requirement of Law or Contractual Obligation of CFC or any of its
Subsidiaries, except to the extent that such contravention would not have a
material adverse effect on the business, operations or financial condition of
CFC and its Subsidiaries taken as a whole or on the ability of such Facility
Borrower to fulfill its obligations under this Agreement or on the rights and
remedies of the Agents and the Banks hereunder.
38
5.5 Government Authorization. No authorization or approval
or other action by, and no notice to or filing with, any Governmental
Authority is required to be obtained or made by CFC or any of its Subsidiaries
for the due execution, delivery and performance by each Facility Borrower of
this Agreement.
5.6 Federal Regulations. Neither CFC nor any of its
Subsidiaries is principally engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U, T, G or X issued by the Federal Reserve Board), and no proceeds
of any borrowing hereunder will be used to purchase or carry any margin stock
or to extend credit to others for the purpose of purchasing or carrying any
margin stock.
5.7 Enforceable Obligations. This Agreement has been duly
executed and delivered on behalf of each Facility Borrower, and this Agreement
constitutes a legal, valid and binding obligation of each Facility Borrower
enforceable against such Facility Borrower 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 principles of equity, whether considered in
a proceeding in equity or at law.
5.8 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of either Facility Borrower, threatened by or against CFC
or any of its Subsidiaries or against any of its or their respective
properties or revenues, in which there is a reasonable likelihood of an
adverse determination (a) with respect to this Agreement or any of the
transactions contemplated hereby, if such adverse determination would have a
material adverse effect on the ability of either Facility Borrower to fulfill
its obligations under this Agreement or on the rights and remedies of the
Administrative Agent and the Banks hereunder or (b) which would, if adversely
determined, have a material adverse effect on the business, operations,
property or financial condition of CFC and its Subsidiaries taken as a whole.
5.9 Taxes. Each of CFC and its Subsidiaries has filed or
caused to be filed all material tax returns which to the knowledge of either
Facility Borrower are required to be filed, and has paid all material taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed
on it or any of its property by any Governmental Authority (other than those
the amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP, if any, have been provided on the books of CFC or its Subsidiaries, as
the case may be).
5.10 ERISA. No Prohibited Transaction or Accumulated Funding
Deficiency (other than those that have been waived by the Internal Revenue
Service) has occurred since July 1, 1974 with respect to any Plan and no
Reportable Event has occurred since July 1, 1974 with respect to any Plan
which could in either case subject CFC or any of its Subsidiaries to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of CFC and its
Subsidiaries taken as a whole. The projected benefit obligations with respect
to all benefits, both vested and nonvested, under all Single Employer Plans
(based on the most recently available actuarial information and computed in
accordance with Statement of Accounting Standards No. 87) maintained by CFC or
a Commonly Controlled Entity did not exceed, at December 31, 1994, the fair
value of the assets of such Plans.
5.11 Investment Company Act; Other Regulations. No Facility
Borrower is an "investment company", or a company "controlled" by an
"investment company", within the meaning of
39
the Investment Company Act of 1940, as amended. No Facility Borrower is
subject to regulation under any statute or regulation of the United States or
Canada (or any governmental unit thereof) which limits its ability to incur
Indebtedness.
5.12 Existing Financial Covenants. Schedule II hereto sets
forth a list of all Material Indebtedness of CFC or any Significant Subsidiary
the documentation with respect to which includes a financial covenant which is
more onerous than, or materially different from, the financial covenant
contained in Section 8.1, together with a complete and correct transcription
of the text of each such financial covenant.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of this
Agreement is subject to the satisfaction of the following conditions
precedent:
(a) Execution of Agreement and Addenda. (i) This Agreement
shall have been executed and delivered by a duly authorized officer
of each Facility Borrower and each Agent and (ii) the Administrative
Agent shall have received an executed Addendum (or a copy thereof by
facsimile transmission) from each Person listed on Schedule I,
provided, that, notwithstanding the foregoing, in the event that an
Addendum has not been duly executed and delivered by each Person
listed on Schedule I on the date (which shall be no earlier than the
date hereof) on which this Agreement shall have been executed and
delivered by each of CFC and the Administrative Agent, this Agreement
shall, subject to satisfaction of the other conditions precedent set
forth in this Section 6.1, nevertheless become effective on such date
with respect to those Persons which have executed and delivered an
Addendum on or before such date if on such date CFC and the
Administrative Agent shall have designated one or more Commercial
Banks (the "Designated Banks") to assume, in the aggregate, all of
the Commitments which would have been held by the Persons listed on
Schedule I (the "Non-Executing Persons") which have not so executed
an Addendum (subject to each such Designated Bank's prior written
consent in its sole discretion and its execution of an Addendum).
Schedule I shall automatically be deemed to be amended to reflect the
respective Commitments of the Designated Banks and the omission of
the Non-Executing Persons as Banks hereunder.
(b) Closing Certificate. The Administrative Agent shall have
received a certificate of each Facility Borrower, dated the Effective
Date, substantially in the form of Exhibit B, with appropriate
insertions, satisfactory in form and substance to the Administrative
Agent, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of such Facility Borrower, and
attaching the documents referred to in Section 6.1(c) and (d).
(c) Corporate Proceedings of the Facility Borrowers. The
Administrative Agent shall have received a copy of the resolutions,
in form and substance satisfactory to the Administrative Agent, of
the Board of Directors of each Facility Borrower (or a duly
authorized committee thereof) authorizing (i) the execution, delivery
and performance of this Agreement and (ii) the borrowings by such
Facility Borrower contemplated hereunder.
(d) Corporate Documents. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation
or amalgamation and by-laws of each Facility Borrower.
40
(e) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions, with a copy for each
Bank:
(i) the executed legal opinion of Simpson Thacher &
Bartlett, counsel to the Administrative Agent, substantially
in the form of Exhibit C-1;
(ii) the executed legal opinion of Allan L.
Ronquillo, Esq., General Counsel of CFC, substantially in
the form of Exhibit C-2; and
(iii) the executed legal opinion of Gowling,
Strathy & Henderson, Canadian Counsel to CCCL, substantially
in the form of Exhibit C-3.
(f) Existing Agreements. The Administrative Agent shall have
received satisfactory evidence that each of the Existing Agreements
shall have been terminated pursuant to an irrevocable notice of
termination and that any amounts owing thereunder (including, without
limitation, accrued unpaid commitment fees thereunder through the
Effective Date) by the relevant Facility Borrower shall have been (or
shall upon the occurrence of the Effective Date be) paid in full.
Without affecting any terms of any Existing Agreement which expressly
survive the termination of such Existing Agreement, each Bank party
to any Existing Agreement hereby waives any requirement of advance
notice of such termination contained in such Existing Agreement and
hereby agrees that such Existing Agreement and the commitments
thereunder (subject to receipt of any other required consents of any
other Person) shall terminate simultaneously with the satisfaction of
the conditions to effectiveness set forth in this Section 6.1.
The Administrative Agent shall notify the Banks of the Effective Date promptly
after the occurrence thereof, which notice shall be accompanied, if
applicable, with a copy of Schedule I revised to give effect to any deemed
amendments thereto made pursuant to Section 6.1(a).
6.2 Conditions to Each Facility Loan. The obligation of each
Bank to make any Facility Loan on or after the Effective Date, other than
pursuant to Section 2.3(b) or 3.4(b), as applicable, to be made by it
hereunder is subject to the satisfaction (or waiver by the Required U.S. Banks
(in the case of U.S. Loans) or the Required C$ Banks (in the case of C$
Loans)) of the following conditions precedent:
(a) Representations and Warranties. The representations and
warranties made by CFC and, in the case of Canadian Loans, CCCL,
shall be correct in all material respects on and as of the Borrowing
Date for such Facility Loan as if made on and as of such date, except
for any such representations or warranties which relate solely to an
earlier date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such Borrowing Date
or after giving effect to the Facility Loans to be made on such
Borrowing Date.
Each borrowing by either Facility Borrower hereunder, other than pursuant to
Section 2.3(b) or 3.4(b), as applicable, shall constitute a representation and
warranty by such Facility Borrower as of the date of each such borrowing that
the conditions in this Section 6.2 have been satisfied.
41
SECTION 7. AFFIRMATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL hereby
covenants and agrees that so long as the Commitments remain in effect, any
Facility Loan remains outstanding and unpaid or any other amount is owing to
any Bank or either Agent hereunder:
7.1 Financial Statements, etc. (a) Each Facility Borrower
will furnish (a) in the case of CFC, to the Administrative Agent and each Bank
or (b) in the case of CCCL, to the Canadian Administrative Agent and each C$
Bank:
(i) as soon as available and in any event within 60
days after the end of the first, second and third quarterly
accounting periods in each fiscal year of such Facility
Borrower, copies of financial statements of such Facility
Borrower and its Subsidiaries consisting of, at a minimum,
balance sheets of such Facility Borrower and its
Subsidiaries on a consolidated basis as of the end of such
quarterly accounting period, and related statements of net
earnings and cash flows for the portion of such fiscal year
ended with the last day of such quarterly accounting period,
all in reasonable detail and prepared and certified (subject
to year-end audit adjustments) by a Responsible Officer
(which certification may be included in the certificate
referred to in Section 7.1(a)(iii)) and stating in
comparative form the respective figures for the
corresponding date and period in the previous fiscal year;
(ii) as soon as available and in any event within
90 days after the end of each fiscal year of such Facility
Borrower, copies of financial statements of such Facility
Borrower and its Subsidiaries consisting of, at a minimum,
balance sheets of such Facility Borrower and its
Subsidiaries on a consolidated basis as of the end of such
fiscal year, and related statements of net earnings and cash
flows for such fiscal year, all in reasonable detail and
certified by independent public accountants of nationally
recognized standing selected by such Facility Borrower and
stating in comparative form the respective figures as of the
end of and for the previous fiscal year;
(iii) concurrently with the financial statements
for each quarterly accounting period and for each fiscal
year of such Facility Borrower furnished pursuant to
paragraphs (a)(i) and (a)(ii) of this Section 7.1, a
certificate of a Responsible Officer stating that, based on
an examination which in the opinion of the signer is
sufficient to enable him to make an informed statement, such
Facility Borrower and its Subsidiaries have performed and
observed all of, and neither such Facility Borrower nor any
of its Subsidiaries is in default in the performance or
observance of any of, the terms, covenants, agreements and
conditions of this Agreement or, if such Facility Borrower
or any of its Subsidiaries shall be in default, specifying
all such defaults and the nature thereof, of which the
signer of such certificate may have knowledge; and
(iv) such other information relating to the affairs
of such Facility Borrower and its Subsidiaries as any Bank
through the Administrative Agent may from time to time
reasonably request.
(b) (i) Upon written request by any Bank through the
Administrative Agent, each Facility Borrower will furnish to such Bank copies
of all such reports of the type a publicly held
42
corporation would generally make available to its stockholders as such
Facility Borrower shall make available to its parent company and (ii) upon
written request of the Administrative Agent, each Facility Borrower will
furnish to the Administrative Agent all regular and periodic reports which CFC
or any Subsidiary may be required to file with the Securities and Exchange
Commission, the Ontario Securities Commission or any similar or corresponding
government department, commission, board, bureau or agency, domestic or
foreign, or with any securities exchange.
7.2 Maintenance of Existence. Each Facility Borrower will
preserve, renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and franchises
necessary or desirable in the normal conduct of its business, except for
rights, privileges and franchises the loss of which would not in the aggregate
in the reasonable business judgment of such Facility Borrower have a material
adverse effect on the business, operations, property or financial or other
condition of such Facility Borrower and its Subsidiaries taken as a whole, and
except as otherwise permitted by Section 8.3.
7.3 Notices. Each Facility Borrower will promptly give
notice to the Administrative Agent (which shall notify the Banks) of (a) the
occurrence of any Default or Event of Default (accompanied by a certificate of
a Responsible Officer specifying the nature of such event, the period of
existence thereof, and the action that the relevant Facility Borrower proposes
to take with respect thereto) and (b) the execution and delivery of any
documentation with respect to any Material Indebtedness of CFC or any
Significant Subsidiary if such documentation includes a financial covenant
which is more onerous than, or materially different from, the financial
covenant contained in Section 8.1, accompanied by a complete and correct
transcription of the text of such financial covenant. The delivery of any such
notice shall be deemed to automatically amend Schedule II to reflect the
existence of such financial covenant and the text thereof.
SECTION 8. NEGATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL, hereby
covenants and agrees that so long as the Commitments remain in effect, any
Facility Loan remains outstanding and unpaid or any other amount is owing to
any Bank or either Agent hereunder:
8.1 Debt to Equity Ratio. CFC will not permit the ratio of
Debt on the last day of any fiscal quarter of CFC to Equity on such day to be
greater than 11.0 to 1.0.
8.2 Limitation on Transactions with Affiliates. CFC will
not, and will not permit any Subsidiary to, engage in any transaction with an
Affiliate (other than CFC and its Subsidiaries) on terms substantially less
favorable to CFC or such Subsidiary than would be obtainable at the time in
comparable transactions of CFC or such Subsidiary with Persons not Affiliates.
As used in this Section 8.2, after the occurrence of a Change of Control, the
term "Affiliate" shall be deemed to include any CFC Affiliate.
8.3 Limitation on Fundamental Change. (a) CFC will not (i)
merge or consolidate with any other Person (unless (x) CFC shall be the
continuing corporation and (y) immediately before and immediately after giving
effect to such merger or consolidation, no Default or Event of Default shall
have occurred and be continuing) or (ii) sell or convey all or substantially
all of its assets to any Person.
43
(b) CCCL will not (i) amalgamate with any other Person
(unless (x) the amalgamated Person shall, if requested by the Administrative
Agent, execute and deliver a ratification of any outstanding C$ Loans and a
confirmation of its assumption of the Subsidiary Borrower Obligations owing by
CCCL and (y) immediately before and immediately after giving effect to such
amalgamation, no Default or Event of Default shall have occurred and be
continuing) or (ii) sell or convey all or substantially all of its assets to
any Person (other than CFC).
8.4 Limitation on Liens. (a) CFC will not, and will not
permit any Finance Subsidiary to, create, assume or incur, or suffer to be
created, assumed or incurred or to exist, any Lien in respect of any property
of any character of CFC or such Finance Subsidiary, whether heretofore or
hereafter acquired; excluding, however, from the operation of this covenant:
(i) any deposit of assets of CFC or any of its Finance
Subsidiaries with any surety company or clerk of any court, or in
escrow, as collateral in connection with, or in lieu of, any bond on
appeal by CFC or any of its Finance Subsidiaries, from any judgment
or decree, or in connection with other proceedings or actions at law
or in equity by or against CFC or any of its Finance Subsidiaries;
(ii) Liens created by any Finance Subsidiary in favor of
CFC or a wholly-owned Subsidiary securing indebtedness of such
Finance Subsidiary to CFC or a wholly-owned Subsidiary (which Liens
cannot be transferred except to CFC or to another wholly-owned
Subsidiary);
(iii) any deposits to secure public or statutory
obligations of CFC or any of its Finance Subsidiaries, other than any
such deposit made as a result of or in connection with the occurrence
of any of the events described in clause (i), (ii), (iii) or (iv) of
Section 9(g);
(iv) any purchase money Liens in respect of fixed assets
or other physical or real properties heretofore or hereafter acquired
by CFC or any of its Finance Subsidiaries, or any Liens existing in
respect of such property at the time of acquisition thereof;
provided, however, that no such Lien shall extend to or cover any
other property of CFC or such Finance Subsidiary, as the case may be;
(v) any Liens which are (A) in respect of fixed assets
or other physical properties of a corporation which is not a Finance
Subsidiary as of the date hereof, and (B) in existence at the time
such corporation becomes a Finance Subsidiary;
(vi) the extension, renewal or replacement of any Lien
permitted by paragraphs (i) through (v) above in respect of the same
property theretofore subject thereto or the extension, renewal or
replacement (without increase of principal amount) of the
indebtedness secured thereby;
(vii) Liens for taxes not yet due or which are being
contested in good faith and by appropriate proceedings if adequate
reserves with respect thereto are maintained on the books of CFC or
such Finance Subsidiary, as the case may be, in accordance with GAAP;
(viii) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business (A) which are not overdue for a period of
more than 60 days or (B) which are being contested in good faith and
by appropriate
44
proceedings if adequate reserves with respect thereto are maintained
on the books of CFC or such Finance Subsidiary, as the case may be,
in accordance with GAAP;
(ix) easements, rights-of-way, zoning and similar
restrictions and other similar encumbrances or title defects incurred
in the ordinary course of business which, in the aggregate, are not
substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or interfere
with the ordinary conduct of the business of CFC or its Finance
Subsidiaries;
(x) any attachment or judgment lien, unless the judgment
it secures shall not, within 30 days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall
not have been discharged within 30 days after the expiration of any
such stay;
(xi) Liens granted on assets in connection with leveraged
leases and project financings entered into in the ordinary course of
the Finance Business;
(xii) Liens granted in connection with the cash
collateralization of Bankers' Acceptances pursuant hereto or in
connection with the cash collateralization of bankers' acceptances
pursuant to the Short Term Revolving Credit Agreement;
(xiii) Liens on receivables payable in foreign currencies
(other than C$) to secure borrowings in foreign countries (other than
Canada); and
(xiv) Liens to secure Indebtedness and other obligations
of CFC or any of its Finance Subsidiaries not otherwise permitted by
this Section 8.4, but only to the extent that the aggregate amount of
Indebtedness and other obligations secured thereby does not at any
time exceed $100,000,000 (or the equivalent thereof in any other
currency).
(b) CFC will not permit any Domestic Subsidiary that is not
a Finance Subsidiary to create, assume or incur, or suffer to be created,
assumed or incurred or to exist, any Lien in respect of any property of any
character of such Domestic Subsidiary, whether heretofore or hereafter
acquired, excluding, however, from the operation of this covenant:
(i) Liens on property of such Domestic Subsidiary that
would be permitted under Section 8.4(a) if such Domestic Subsidiary
were a Finance Subsidiary;
(ii) Liens on property of such Domestic Subsidiary that
are incurred in the ordinary course of the Finance Business or the
Real Estate Business of such Domestic Subsidiary; and
(iii) Liens on any property of such Domestic Subsidiary if
such Domestic Subsidiary is a "single purpose" entity formed for the
purpose of holding title to such property and engages in no
activities other than those related to holding title to such
property.
8.5 Additional Covenants. At any time after the occurrence
of a Change of Control:
(a) Limitation on Dividends, Investments, etc. CFC
shall not (i) declare or pay any dividend (other than dividends
payable solely in common stock of CFC) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund
for, the
45
purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of CFC, whether now or
hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property
or in obligations of CFC or any Subsidiary or (ii) make, or permit
any Subsidiary to make, any investment, loan, advance, capital
contribution or extension of credit (including by way of guaranty in
favor of third party creditors), whether in cash or property or
otherwise, in or to or for the benefit of any CFC Affiliate, except
that (x) so long as no Event of Default has occurred and is
continuing (or would occur after giving effect thereto), CFC may
declare and pay any scheduled dividend on, and make redemptions of,
preferred stock issued by CFC to any Person (other than a CFC
Affiliate) to the extent permitted by the terms thereof and (y) CFC
and its Subsidiaries may make investments, loans, advances and
extensions of credit in or to or for the benefit of any CFC Affiliate
in the ordinary course of its Finance Business consistent with
historical practices (in each case determined as of the date of such
Change of Control) and in accordance with Section 8.2.
(b) Minimum Equity. CFC shall not permit Equity
(determined without giving effect to any redemption of preferred
stock of CFC made pursuant to Section 8.5(a) after the date of such
Change of Control) to be less than an amount equal to Equity as of
the day immediately preceding the occurrence of such Change of
Control minus $250,000,000.
(c) Limitation on Amendments to Intercompany
Agreements; CFC Affiliate Transactions. CFC shall not, and shall not
permit any Subsidiary to, (i) amend or modify, or agree to amend or
modify, any of the provisions of any Intercompany Agreement in a
manner materially adverse to the interests of either (x) CFC and its
Subsidiaries taken as a whole or (y) the Banks, or (ii) enter into,
or agree to enter into, any Intercompany Agreement which is
materially adverse to the interests of either (x) CFC and its
Subsidiaries taken as a whole or (y) the Banks. As used in this
Section 8.5(c), "Intercompany Agreement" means any agreement between
CFC or any Subsidiary and any CFC Affiliate, any instrument issued by
CFC or any Subsidiary to any CFC Affiliate and any instrument issued
by any CFC Affiliate to CFC or any Subsidiary.
(d) Limitation on Lines of Business. CFC shall not,
and shall not permit any Subsidiary to, engage in any business other
than the Finance Business, the Finance-Related Insurance Business and
the other businesses in which CFC and its Subsidiaries are engaged as
of the date of such Change of Control, and other than businesses in
which CFC or any of its Subsidiaries may be involved in connection
with or related to any workout, liquidation, foreclosure or other
realization on or disposition of assets in which it has a security
interest, or any other exercise of rights or remedies pursuant to a
workout in connection with any financing (whether equity or debt)
provided by CFC or any of its Subsidiaries to any Person.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) CFC or any Subsidiary Borrower shall fail to pay any
principal of any Loan when due in accordance with the terms hereof or
of the relevant Foreign Currency Subfacility, as the case may be; or
to pay any interest on any Loan or any fee or other amount owing
hereunder or under any Foreign Currency Subfacility within five
Business Days after any such interest,
46
fee or other amount becomes due in accordance with the terms hereof
or of the relevant Foreign Currency Subfacility, as the case may be;
or
(b) any representation or warranty made by either Facility
Borrower herein, or deemed made by either Facility Borrower pursuant
to Section 5 or 6, 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) either Facility Borrower shall default in the observance
or performance of any agreement contained in Section 8.1, 8.3 or 8.5;
or
(d) either Facility Borrower shall default in the observance
or performance of any other agreement, covenant or term contained in
this Agreement (including any failure to make any payment required
hereunder other than as described in paragraph (a) above), and such
default shall continue unremedied for a period of 30 days after
receipt by such Facility Borrower of notice of such default from the
Administrative Agent; or
(e) CFC or any Significant Subsidiary shall default in any
payment of $25,000,000 (or the equivalent thereof in any other
currency) or more of principal of or interest on any Indebtedness or
in the payment of $25,000,000 (or the equivalent thereof in any other
currency) or more on account of any guarantee in respect of
Indebtedness, beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or guarantee
was created; or
(f) (i) CFC or any of its Significant Subsidiaries 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 CFC or any of its Significant Subsidiaries shall make a
general assignment for the benefit of its creditors; or (ii) there
shall be commenced against CFC or any of its Significant Subsidiaries
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 CFC or any of its Significant
Subsidiaries 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; or (iv) CFC or any of its Significant
Subsidiaries 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; or (v) CFC or any of its
Significant Subsidiaries shall admit in writing its inability to pay
its debts generally as they become due; or
(g) (i) any Person shall engage in any Prohibited
Transaction involving any Plan, (ii) any Accumulated Funding
Deficiency, whether or not waived, shall exist with respect to any
Plan, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to
47
have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which
Reportable Event or institution of proceedings is, in the reasonable
opinion of the Required Banks, likely to result in the termination of
such Plan for purposes of Title IV of ERISA, and, in the case of a
Reportable Event, the continuance of such Reportable Event unremedied
for ten days after notice of such Reportable Event pursuant to
Section 4043(a), (c) or (d) of ERISA is given or the continuance of
such proceedings for ten days after commencement thereof, as the case
may be, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, or (v) any other event or condition shall occur or
exist with respect to a Single Employer Plan; and in each case in
clauses (i) through (v) above, the Administrative Agent shall have
notified CFC that, in the opinion of the Required Banks, such event
or condition, together with all other such events or conditions, if
any, could reasonably be expected to subject CFC or any of its
Subsidiaries to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property
or financial or other condition of CFC and its Subsidiaries taken as
a whole; or
(h) one or more final judgments or decrees shall be entered
against CFC or any of its Significant Subsidiaries involving in the
aggregate a liability (not paid or fully covered by insurance) of
$100,000,000 (or the equivalent thereof in any other currency) or
more shall have been unpaid for a period of 60 days and shall not
have been stayed; or
(i) Chrysler shall at any time fail to own at least 51% of
the issued and outstanding shares of the common stock of CFC; or
(j) CFC or any of its Significant Subsidiaries shall default
in the observance or performance of any financial covenant contained
in any instrument or agreement evidencing, securing or relating to
any of its Material Indebtedness, the effect of which default is to
cause, or to permit the holder or holders of such Material
Indebtedness (or a trustee or agent on behalf of such holder or
holders) to cause, such Material Indebtedness to become due prior to
its stated maturity;
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to CFC,
automatically the Commitments shall immediately terminate and the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
Bank), with accrued interest thereon, and all other amounts owing under this
Agreement and the Foreign Currency Subfacilities 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 CFC, 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 CFC, declare the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
Bank), with accrued interest thereon, and all other amounts owing under this
Agreement and the Foreign Currency Subfacilities to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section 9, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
48
SECTION 10. THE AGENTS
10.1 Appointment. Each Bank hereby irrevocably designates
and appoints the Administrative Agent as the administrative agent of such Bank
under this Agreement, and each Bank hereby irrevocably authorizes the
Administrative Agent as administrative agent for such Bank 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. Each C$ Bank hereby irrevocably
designates and appoints the Canadian Administrative Agent as the Canadian
administrative agent of such Bank under this Agreement, and each C$ Bank
hereby irrevocably authorizes the Canadian Administrative Agent as Canadian
administrative agent for such Bank 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 Canadian 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, neither Agent shall 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 any Foreign
Currency Subfacility or otherwise exist against either Agent.
10.2 Delegation of Duties. Each 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. Without limiting the foregoing, the Administrative Agent may
appoint CASC as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to CFC and distribution of funds
to the Banks and to perform such other related functions of the Administrative
Agent hereunder as are reasonably incidental to such functions.
10.3 Exculpatory Provisions. Neither Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates (including, without limitation, CASC) shall be (a) 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 willful misconduct), or (b) responsible in any manner to any of
the Banks for any recitals, statements, representations or warranties made by
either Facility Borrower, any Foreign Subsidiary Borrower or any Subsidiary or
any officer thereof contained in this Agreement or any Foreign Currency
Subfacility or in any certificate, report, statement or other document
referred to or provided for in, or received by either Agent under or in
connection with, this Agreement or any Foreign Currency Subfacility or for any
failure of either Facility Borrower, any Foreign Subsidiary Borrower or any
Subsidiary to perform its obligations hereunder or thereunder. Neither Agent
shall 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 any Foreign Currency Subfacility, or to inspect the
properties, books or records of either Facility Borrower, any Foreign
Subsidiary Borrower or any Subsidiary.
10.4 Reliance by Agents and CASC. Each Agent and CASC shall
be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, facsimile transmission, 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 CFC), independent accountants and other experts
selected by the relevant Agent. Each Agent and CASC may deem and treat the
Bank specified in the relevant Register with respect to any amount owing
hereunder as the owner thereof for all purposes unless a
49
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent in accordance with Section 13.7. Each
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 (or, if so specified in this Agreement, all of the Banks) as it
deems appropriate or 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. Each 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 (or, if so
specified in this Agreement, all of the 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 Facility
Borrowers hereunder.
10.5 Notice of Default. Neither Agent shall be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless such Agent has received notice from a Bank or either Facility
Borrower 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 either Agent receives such a notice, such Agent shall give notice thereof
to the Banks, and, if such notice is received from a Bank, such Agent shall
give notice thereof to each Facility Borrower and each other Bank. Subject to
the proviso contained in Section 13.1, 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 (or, if so specified in this
Agreement, all of the 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.
10.6 Non-Reliance on Agents, Other Banks and CASC. Each Bank
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates
(including, without limitation, CASC) has made any representations or
warranties to it and that no act by either Agent hereafter taken, including
any review of the affairs of either Facility Borrower, shall be deemed to
constitute any representation or warranty by either Agent to any Bank. Each
Bank represents to each Agent and CASC that it has, independently and without
reliance upon either Agent, any other Bank or CASC, 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 Facility Borrowers and any Foreign
Subsidiary Borrower and made its own decision to make its Loans under, and
enter into, this Agreement and any Foreign Currency Subfacility. Each Bank
also represents that it will, independently and without reliance upon either
Agent, any other Bank or CASC, 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 or any Foreign Currency Subfacility, 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 Facility
Borrowers and any Foreign Subsidiary Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Banks by the
relevant Agent hereunder, neither Agent shall have any duty or responsibility
to provide any Bank with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of either Facility Borrower or any Foreign Subsidiary
Borrower which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
10.7 Indemnification. The Banks (or, in the case of the
indemnity in favor of the Canadian Administrative Agent, the C$ Banks) agree
to indemnify each Agent and CASC (to the
50
extent not reimbursed by either Facility Borrower and without limiting the
obligation of each Facility Borrower to do so), ratably according to the
respective amounts of their respective Commitment Percentages (or, in the case
of the indemnity in favor of the Canadian Administrative Agent, the C$ Banks'
respective C$ Commitment Percentages) in effect on the date on which
indemnification is sought under this Section 10.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated,
ratably in accordance with such Commitment Percentages (or C$ 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 Loans) be imposed on, incurred by or asserted against such Agent or CASC
in any way relating to or arising out of this Agreement or any Foreign
Currency Subfacility or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by such Agent or CASC 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 such Agent's
or CASC's, as the case may be, gross negligence or willful misconduct. The
agreements in this Section 10.7 shall survive the payment of the Loans and all
other amounts payable hereunder or under any Foreign Currency Subfacility.
10.8 Agents in their Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with each Facility Borrower and any Foreign Subsidiary
Borrower as though such Agent was not an Agent hereunder. With respect to its
Loans made or renewed by it, each Agent shall have the same rights and powers
under this Agreement as any Bank and may exercise the same as though it were
not an Agent, and the terms "Bank" and "Banks" shall include such Agent in its
individual capacity.
10.9 Successor Agents. Each Agent may resign as Agent upon
10 days' notice to the Banks and the Facility Borrowers, and may be removed at
any time with or without cause by the Required Banks. If an Agent shall resign
or be removed as Agent under this Agreement, then either (a) the Required
Banks shall appoint from among the Banks a successor administrative agent or
Canadian administrative agent, as applicable, which successor agent shall be
approved by CFC, or (b) if a successor agent shall not have been so appointed
and approved within the 10-day period following such Agent's notice to the
Banks or its removal as Agent, such Agent shall then, with the consent of CFC,
appoint a successor agent who shall serve as Administrative Agent or Canadian
Administrative Agent, as applicable, until such time, if any, as the Required
Banks appoint, and CFC approves, a successor agent as provided in (a) above.
Upon its appointment pursuant to either clause (a) or (b) above, such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent or the Canadian Administrative Agent, as applicable, and
the terms "Administrative Agent", "Canadian Administrative Agent" and "Agent",
as applicable, shall mean such successor agent effective upon its appointment,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or
any of the parties to this Agreement or any holders of the obligations owing
by the Facility Borrowers hereunder. After any retiring Agent's resignation
hereunder as Agent, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
10.10 The Managing Agents. No Managing Agent in its capacity
as such shall have any rights, duties or responsibilities hereunder, 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 any Managing Agent in its capacity as
Managing Agent.
51
SECTION 11. FOREIGN CURRENCY SUBFACILITIES
11.1 Terms of Foreign Currency Subfacilities. (a) Subject to
the provisions of this Section 11, each Bank hereby agrees that CFC may in its
discretion from time to time designate any credit facility to which any one or
more Foreign Subsidiary Borrowers and any one or more Banks is a party as a
"Foreign Currency Subfacility", with the consent of each such Bank in its sole
discretion, and subject to confirmation by the Administrative Agent that such
facility complies with the requirements of this Section 11, by delivering a
Foreign Currency Subfacility Addendum to the Administrative Agent, executed by
CFC and each such Foreign Subsidiary Borrower and executed or acknowledged in
writing by each such Bank, provided, that on the effective date of such
designation (i) a Foreign Exchange Rate with respect to each Foreign Currency
covered by such Foreign Currency Subfacility shall be determinable by
reference to a selling rate published in the "Wall Street Journal" (or, in the
event that such rate is not so published, such other publicly available source
for determining exchange rates as shall be acceptable to the Administrative
Agent and CFC), (ii) no Default or Event of Default shall have occurred and be
continuing and (iii) CFC shall have agreed in writing to pay to the
Administrative Agent an administration fee in respect of such Foreign Currency
Subfacility in an amount mutually acceptable to CFC and the Administrative
Agent. Except as otherwise provided in this Section 11, the terms and
conditions of each Foreign Currency Subfacility shall be determined by mutual
agreement of the relevant Foreign Subsidiary Borrower(s) and Bank(s). The
documentation governing each Foreign Currency Subfacility shall contain an
express acknowledgement that such Foreign Currency Subfacility shall be
subject to the provisions of this Section 11. Each Bank party to a Foreign
Currency Subfacility must be a US$ Bank or a subsidiary, affiliate, branch or
agency of a US$ Bank, and each party hereto and, by agreeing to any Foreign
Currency Subfacility designation as contemplated hereby, any such subsidiary,
affiliate, branch or agency, acknowledges and agrees that each reference in
this Agreement to any Bank shall, to the extent applicable, be deemed to be a
reference to such subsidiary, affiliate, branch or agency. In the event of any
inconsistency between the terms of this Agreement and the terms of any Foreign
Currency Subfacility, the terms of this Agreement shall prevail. It is
understood that the provisions of Sections 4.10, 4.11, 4.12 and 4.13 do not
apply to any Foreign Currency Subfacility or any Loans made thereunder.
(b) The documentation governing each Foreign Currency
Subfacility shall set forth the maximum amount (expressed in Dollars)
available to be borrowed from each Bank thereunder (each, a "Foreign Currency
Subfacility Maximum Borrowing Amount"). In no event shall (i) the aggregate of
all Foreign Currency Subfacility Maximum Borrowing Amounts in respect of all
Banks at any time exceed 10% of the aggregate Commitments then in effect, (ii)
the aggregate of all Foreign Currency Subfacility Maximum Borrowing Amounts in
respect of any Bank at any time exceed the lesser of $50,000,000 and 50% of
such Bank's U.S. Commitment or (iii) the Aggregate U.S./Foreign Extensions of
Credit of any Bank at any time exceed such Bank's U.S. Commitment. The making
of Foreign Currency Loans by a Bank under a Foreign Currency Subfacility shall
under no circumstances reduce the amount available to be borrowed from such
Bank under any other Foreign Currency Subfacility to which such Bank is a
party.
(c) Except as otherwise required by applicable law, in no
event shall the Banks party to a Foreign Currency Subfacility have the right
to accelerate the Foreign Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Loans prior to the stated
termination date in respect thereof, except, in each case, in connection with
an acceleration of the Loans or a termination of the Commitments pursuant to
Section 9 of this Agreement, provided, that nothing in this paragraph (c)
shall be deemed to require any Bank to make a Foreign Currency Loan if the
applicable conditions precedent to the making of such Foreign Currency Loan
set forth in the relevant Foreign Currency Subfacility have not been
satisfied. No Foreign Currency Loan may be
52
made under a Foreign Currency Subfacility if a Default or Event of Default
shall have occurred and be continuing or would result therefrom.
(d) The relevant Banks, or, if so specified in the relevant
Foreign Currency Subfacility, an agent acting on their behalf, shall furnish
to the Administrative Agent, immediately upon its request, a statement setting
forth the outstanding Foreign Currency Loans made under such Foreign Currency
Subfacility. The Administrative Agent shall be entitled to rely on any such
statement without further investigation.
(e) If any amendment, supplement or other modification to a
Foreign Currency Subfacility shall (i) add a Bank as a party thereto or (ii)
change the Foreign Currency Subfacility Maximum Borrowing Amount of any Bank
party thereto, CFC shall promptly furnish an appropriately revised Foreign
Currency Subfacility Addendum, executed by CFC, the relevant Foreign
Subsidiary Borrower and the affected Banks (or any agent acting on their
behalf), to the Administrative Agent.
(f) CFC may terminate its designation of a facility as a
Foreign Currency Subfacility, with the consent of each Bank party thereto in
its sole discretion, by written notice to the Administrative Agent, which
notice shall be executed by CFC, the relevant Foreign Subsidiary Borrower and
each Bank party to such Foreign Currency Subfacility (or any agent acting on
their behalf). Once notice of such termination is received by the
Administrative Agent, such Foreign Currency Subfacility and the loans and
other obligations outstanding thereunder shall immediately cease to be subject
to the terms of this Agreement (including the guarantee of CFC contained in
Section 12).
(g) Nothing in this Section 11 shall be deemed to limit the
ability of CFC or any of the Subsidiaries to enter into credit facilities
which do not constitute Foreign Currency Subfacilities.
11.2 Currency Fluctuations, etc. (a) No later than 2:00
P.M., New York City time, on each Foreign Calculation Date, the Administrative
Agent shall (i) determine the Foreign Exchange Rate as of such Foreign
Calculation Date with respect to each Foreign Currency covered by a Foreign
Currency Subfacility and (ii) give notice thereof to the relevant Banks and
CFC. The Foreign Exchange Rates so determined shall become effective on the
first Business Day immediately following the relevant Foreign Calculation Date
(a "Foreign Reset Date") and shall remain effective until the next succeeding
Foreign Reset Date. If on any Foreign Calculation Date a Foreign Exchange Rate
cannot be determined with respect to any Foreign Currency, such Foreign
Exchange Rate shall remain at the applicable rate effective as of the most
recent Foreign Reset Date with respect to which such Foreign Exchange Rate was
available until such Foreign Exchange Rate can once again be determined.
(b) No later than 2:00 P.M., New York City time, on each
Foreign Reset Date and each Borrowing Date, the Administrative Agent shall (i)
determine the US$ Equivalent of the Foreign Currency Loans then outstanding
under each Foreign Currency Subfacility (after giving effect to any Foreign
Currency Loans to be made or repaid on such date) and (ii) notify the relevant
Banks and CFC of the results of such determination.
(c) If, on any Foreign Reset Date or any Borrowing Date
(after giving effect to (i) any Loans to be made or repaid on such date and
(ii) any amendment, supplement or other modification to any Foreign Currency
Subfacility effective on such date of which the Administrative Agent has
received notice), the Aggregate U.S./Foreign Extensions of Credit (US$
Equivalent) of any Bank exceed the U.S. Commitment of such Bank, then, within
ten Business Days after notice thereof to CFC from the Administrative Agent,
CFC shall cause the relevant Foreign Subsidiary Borrower to reduce
53
the Aggregate Foreign Extensions of Credit of such Bank in an amount such
that, after giving effect thereto, the Aggregate U.S./Foreign Extensions of
Credit (US$ Equivalent) of such Bank shall be equal to or less than the U.S.
Commitment of such Bank.
(d) If, on any Foreign Reset Date or any Borrowing Date
(after giving effect to (i) any Foreign Currency Loans to be made or repaid on
such date and (ii) any amendment, supplement or other modification to any
Foreign Currency Subfacility effective on such date of which the
Administrative Agent has received notice), the US$ Equivalent of the Foreign
Currency Loans made by any Bank outstanding under any Foreign Currency
Subfacility to which such Bank is a party exceeds the Foreign Currency
Subfacility Maximum Borrowing Amount of such Bank with respect thereto, then
CFC shall cause the relevant Foreign Subsidiary Borrower, within ten Business
Days after notice thereof to CFC from the Administrative Agent, to (i)
increase the Foreign Currency Subfacility Maximum Borrowing Amount of such
Bank with respect to such Foreign Currency Subfacility (subject to the
approval of such Bank) in accordance with Section 11.1(e) and/or (ii) prepay
such Foreign Currency Loans in accordance with the terms of such Foreign
Currency Subfacility in an aggregate amount such that, after giving effect
thereto, the US$ Equivalent of such Foreign Currency Loans shall be equal to
or less than such Bank's Foreign Currency Subfacility Maximum Borrowing Amount
with respect to such Foreign Currency Subfacility.
(e) The Administrative Agent shall promptly furnish each
affected Bank with a copy of any notice described in Section 11.2(c) or
11.2(d) which has been delivered to CFC by the Administrative Agent.
SECTION 12. GUARANTEE
12.1 Guarantee. In order to induce the Agents and the Banks
to execute and deliver this Agreement, to become a party to any Foreign
Currency Subfacility and to make or maintain the Loans, and in consideration
thereof, CFC hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, to the Administrative Agent, for the ratable
benefit of the Agents and the Banks, the prompt and complete payment and
performance by each Subsidiary Borrower when due (whether at stated maturity,
by acceleration or otherwise) of the Subsidiary Borrower Obligations. The
guarantee contained in this Section 12, subject to Section 12.5, shall remain
in full force and effect until the Subsidiary Borrower Obligations are paid in
full and the Commitments are terminated, notwithstanding that from time to
time prior thereto any Subsidiary Borrower may be free from any Subsidiary
Borrower Obligations.
CFC agrees that whenever, at any time, or from time to time,
it shall make any payment to either Agent or any Bank on account of its
liability under this Section 12, it will notify the Administrative Agent (and,
in the cases of payments to it, the Canadian Administrative Agent) and such
Bank in writing that such payment is made under the guarantee contained in
this Section 12 for such purpose. No payment or payments made by any
Subsidiary Borrower or any other Person or received or collected by either
Agent or any Bank from any Subsidiary Borrower or any other Person by virtue
of any action or proceeding or any setoff or appropriation or application, at
any time or from time to time, in reduction of or in payment of the Subsidiary
Borrower Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of CFC under this Section 12 which, notwithstanding any
such payment or payments, shall remain liable for the unpaid and outstanding
Subsidiary Borrower Obligations until, subject to Section 12.5, the Subsidiary
Borrower Obligations are paid in full and the Commitments are terminated.
54
12.2 No Subrogation, Contribution, Reimbursement or
Indemnity. Notwithstanding anything to the contrary in this Section 12, CFC
hereby irrevocably waives (a) all rights which may have arisen in connection
with the guarantee contained in this Section 12 to be subrogated to any of the
rights (whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of either Agent or any Bank against
any Subsidiary Borrower or against either Agent or any Bank for the payment of
the Subsidiary Borrower Obligations and (b) all contractual, common law,
statutory and other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against any Subsidiary Borrower or
any other Person which may have arisen in connection with the guarantee of the
Subsidiary Borrower Obligations contained in this Section 12, in each case
until all Subsidiary Borrower Obligations of such Subsidiary Borrower have
been paid in full. So long as the Subsidiary Borrower Obligations remain
outstanding, if any amount shall be paid by or on behalf of any Subsidiary
Borrower or any other Person to CFC on account of any of the rights waived in
this Section 12.2, such amount shall be held by CFC in trust, segregated from
other funds of CFC, and shall, forthwith upon receipt by CFC, be turned over
to the Administrative Agent in the exact form received by CFC (duly indorsed
by CFC to the Administrative Agent, if required), to be applied against the
Subsidiary Borrower Obligations, whether matured or unmatured, in such order
as the Administrative Agent may determine. The provisions of this Section 12.2
shall survive the term of the guarantee contained in this Section 12 and the
payment in full of the Subsidiary Borrower Obligations and the termination of
the Commitments.
12.3 Amendments, etc. with respect to the Subsidiary
Borrower Obligations. CFC shall remain obligated under this Section 12
notwithstanding that, without any reservation of rights against CFC, and
without notice to or further assent by CFC, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower
Obligations made by either Agent or any Bank may be rescinded by such Agent or
such Bank, and any of the Subsidiary Borrower Obligations continued, and the
Subsidiary Borrower Obligations, or the liability of any other party upon or
for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered or released by either Agent or any Bank, and this
Agreement and any other documents executed and delivered in connection
herewith or in connection with any Foreign Currency Subfacility may be
amended, modified, supplemented or terminated, in whole or in part, as may be
deemed advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by either Agent or any Bank for the payment
of the Subsidiary Borrower Obligations may be sold, exchanged, waived,
surrendered or released. No Agent or Bank shall have any obligation to
protect, secure, perfect or insure any lien at any time held by it as security
for the Subsidiary Borrower Obligations or for the guarantee contained in this
Section 12 or any property subject thereto.
12.4 Guarantee Absolute and Unconditional. CFC waives any
and all notice of the creation, renewal, extension or accrual of any of the
Subsidiary Borrower Obligations and notice of or proof of reliance by either
Agent or any Bank upon the guarantee contained in this Section 12 or
acceptance of the guarantee contained in this Section 12; the Subsidiary
Borrower Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon the guarantee contained in this Section 12; and all dealings
between CFC or the Subsidiary Borrowers, on the one hand, and the Agents and
the Banks, on the other, shall likewise be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section
12. CFC waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon CFC or any Subsidiary Borrower with
respect to the Subsidiary Borrower Obligations. The guarantee contained in
this Section 12 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of
this Agreement, any Foreign Currency Subfacility, any of the Subsidiary
55
Borrower Obligations or any collateral security therefor or guarantee or right
of offset with respect thereto at any time or from time to time held by either
Agent or any Bank, (b) the legality under applicable Requirements of Law of
repayment by the relevant Subsidiary Borrower of any Subsidiary Borrower
Obligations or the adoption of any Requirement of Law purporting to render any
Subsidiary Borrower Obligations null and void, (c) any defense, setoff or
counterclaim (other than a defense of payment or performance by the applicable
Subsidiary Borrower) which may at any time be available to or be asserted by
CFC or any Subsidiary Borrower against either Agent or any Bank, or (d) any
other circumstance whatsoever (with or without notice to or knowledge of CFC
or any Subsidiary Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any Subsidiary Borrower for any
Subsidiary Borrower Obligations, or of CFC under the guarantee contained in
this Section 12, in bankruptcy or in any other instance. When either Agent or
any Bank is pursuing its rights and remedies under this Section 12 against
CFC, such Agent or Bank may, but shall be under no obligation to, pursue such
rights and remedies as it may have against any Subsidiary Borrower or any
other Person or against any collateral security or guarantee for the
Subsidiary Borrower Obligations or any right of offset with respect thereto,
and any failure by either Agent or any Bank to pursue such other rights or
remedies or to collect any payments from any Subsidiary Borrower or any such
other Person or to realize upon any such collateral security or guarantee or
to exercise any such right of offset, or any release of any Subsidiary
Borrower or any such other Person or of any such collateral security,
guarantee or right of offset, shall not relieve CFC of any liability under
this Section 12, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Agents and
the Banks against CFC.
12.5 Reinstatement. The guarantee contained in this Section
12 shall continue to be effective, or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any of the Subsidiary Borrower
Obligations is rescinded or must otherwise be restored or returned by either
Agent or any Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Subsidiary Borrower or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, any Subsidiary Borrower or any substantial part of its property,
or otherwise, all as though such payments had not been made.
12.6 Payments. (a) CFC hereby agrees that any payments in
respect of the Subsidiary Borrower Obligations pursuant to this Section 12
will be paid without setoff or counterclaim in C$ (in the case of Subsidiary
Borrower Obligations arising under this Agreement) or, at the option of the
relevant Bank(s), in Dollars or in the relevant Foreign Currency (in the case
of Subsidiary Borrower Obligations arising under any Foreign Currency
Subfacility), to (unless otherwise specified by the Administrative Agent): (a)
the Canadian Administrative Agent at the office of the Canadian Administrative
Agent specified in Section 13.2 (in the case of Subsidiary Borrower
Obligations arising under this Agreement) or (b) the relevant Bank(s) (or an
agent acting on their behalf) at the office specified for payments under the
relevant Foreign Currency Subfacility or such other office as shall have been
specified by the relevant Bank(s) in each case to the extent permitted by
applicable law (in the case of Subsidiary Borrower Obligations arising under
any Foreign Currency Subfacility).
(b) In the event that any law, regulation, treaty or
directive (whether or not in effect on the date hereof), shall require any
Taxes to be withheld or deducted from any amount payable to any Bank under the
guarantee contained in this Section 12, upon notice by such Bank to CFC (with
a copy to the Administrative Agent) to the effect that as a result of such
law, rule, regulation, treaty or directive, Taxes are being withheld or
deducted from amounts payable to such Bank under the guarantee contained in
this Section 12, CFC will pay to such Bank (or, if applicable, the relevant
Agent or any other agent acting on such Bank's behalf) additional amounts (in
the relevant currency) so that such additional amounts, together with amounts
otherwise payable under the guarantee
56
contained in this Section 12, will yield to such Bank, after deduction from
such increased amount of all Taxes required to be withheld or deducted
therefrom, the amount stated to be payable under the guarantee contained in
this Section 12. If CFC fails to pay any Taxes when due following notification
by any Bank as provided above, CFC shall indemnify such Bank for any
incremental taxes, interest or penalties that may become payable by any Bank
as a result of any such failure by CFC to make such payment. Within 30 days
after the payment by CFC of any Taxes withheld or deducted from any amount
payable to any Bank under the guarantee contained in this Section 12, CFC will
furnish to such Bank (with a copy to the Administrative Agent), the original
or a certified copy of a receipt evidencing payment thereof.
12.7 Judgments Relating to Guarantee. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
due under the guarantee contained in this Section 12 in one currency into
another currency, CFC agrees, to the fullest extent that it may effectively do
so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the relevant Bank (or
agent acting on its behalf) could purchase the first currency with such other
currency for the first currency on the Banking Day immediately preceding the
day on which final judgment is given.
(b) The obligations of CFC in respect of any sum due under
the guarantee contained in this Section 12 shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with this Section 12 (the "Agreement Currency"), be
discharged only to the extent that, on the Banking Day following receipt by
any Bank (or agent acting on its behalf) (the "Applicable Creditor") of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, CFC agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss, provided, that if the amount of the Agreement
Currency so purchased exceeds the sum originally due to the Applicable
Creditor, the Applicable Creditor agrees to remit such excess to CFC. The
obligations of CFC contained in this Section 12.7 shall survive the
termination of the guarantee contained in this Section 12 and the payment of
all amounts owing hereunder.
12.8 Independent Obligations. The obligations of CFC under
the guarantee contained in this Section 12 are independent of the obligations
of each Subsidiary Borrower, and a separate action or actions may be brought
and prosecuted against CFC whether or not the relevant Subsidiary Borrower be
joined in any such action or actions. CFC waives, to the full extent permitted
by law, the benefit of any statute of limitations affecting its liability
hereunder or the enforcement thereof.
SECTION 13. MISCELLANEOUS
13.1 Amendments and Waivers. With the written consent of the
Required Banks, the Administrative Agent and the Facility Borrowers 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 either Facility Borrower
hereunder, and with the written consent of the Required Banks the
Administrative Agent on behalf of the Banks may execute and deliver to the
Facility Borrowers a written instrument waiving, on such terms and conditions
as the Administrative Agent may specify (with such consent) in such
instrument, any of the requirements of this Agreement or any Default or Event
of Default and its consequences;
57
provided, however, that no such waiver and no such amendment, supplement or
modification shall (a) extend the maturity of any Facility Loan, or reduce the
rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof, or reduce the amount or extend the time of payment
of any Facility Fee or Acceptance Fee hereunder, or change the amount or terms
of any Bank's Commitment, or amend, modify or waive any provision of this
Section 13.1 or reduce the percentages specified in the definition of Required
Banks, Required U.S. Banks or Required Canadian Banks, or consent to the
assignment or transfer by either Facility Borrower of any of its rights and
obligations under this Agreement or amend, modify or waive the provisions of
Section 13.8, in each case without the prior written consent of each Bank
directly affected thereby; or (b) release CFC from its obligations under the
guarantee contained in Section 12 without the prior written consent of each C$
Bank and each Bank party to a Foreign Currency Subfacility; or (c) amend,
modify or waive any provision of Section 10 without the prior written consent
of each Agent directly affected thereby; or (d) amend, modify or waive any
provision of Section 10.10 without the prior written consent of each Managing
Agent. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Banks and shall be binding upon each
Facility Borrower, the Banks, each Agent and all future holders of the
obligations owing by the Facility Borrowers hereunder. In the case of any
waiver, each Facility Borrower, the Banks and each Agent 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. The Administrative Agent shall give the
Canadian Administrative Agent prompt written notice of any waiver, amendment,
supplement or modification entered into pursuant to this Section 13.1.
13.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing or by
facsimile transmission or telex and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by hand
or when deposited in the mail, first class or air postage prepaid, or, in the
case of facsimile transmission, when transmitted, receipt acknowledged, or, in
the case of telex notice, when sent, answerback received, addressed as follows
in the case of the Facility Borrowers, the Canadian Administrative Agent and
the Administrative Agent, and as set forth in its Addendum 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
by the Facility Borrowers hereunder:
58
CFC: Chrysler Financial Corporation
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: 810-948-3801
CCCL: Chrysler Credit Canada Ltd.
27777 Franklin Road
Southfield, Michigan 48034-8286
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: 810-948-3801
The Administrative Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Rosemary Bradley
Facsimile: 212-972-9854
With copies to: Chemical Bank Agency Services
Grand Central Tower
140 East 45th Street
New York, New York 10017
Attention: Sandra Miklave
Telex: 353-006
Answerback: ABSC NYK
Facsimile: 212-622-0002
The Canadian
Administrative Agent: Royal Bank of Canada
Loan Structuring and Syndications
Royal Bank Plaza, South Tower
200 Bay Street
Toronto, Ontario
Canada M5J 2J5
Attention: Manager, Business Operations
Facsimile: 416-974-2407
provided that any notice, request or demand to or upon an Agent pursuant to
Section 2.2, 2.3, 2.4, 3.2, 3.3, 3.4, 3.5, 4.6 or 4.7 shall not be effective
until received.
13.3 Clearing Accounts. (a) Each US$ Bank irrevocably
authorizes the Administrative Agent and CASC to cause such Bank's Clearing
Account to be debited as contemplated in Sections 2.2 and 2.3 and to cause to
be created an overdraft in such account if the balance in such Bank's Clearing
Account on a particular Borrowing Date is less than the amount of the U.S.
Loan to be made by such Bank on such day. In addition each US$ Bank
irrevocably authorizes the Administrative Agent and CASC to cause such Bank's
Clearing Account to be credited, as
59
contemplated in Section 4.8(a), with its ratable share of payments received by
the Administrative Agent from CFC. The Clearing Account of each US$ Bank shall
be maintained at its own expense and free of charge to the Administrative
Agent, CASC and CFC.
(b) The Administrative Agent may at any time in its sole
discretion, upon prior notice to CFC and the US$ Banks, discontinue the use of
ACH procedures in connection with U.S. Loans made pursuant hereto, and the US$
Banks shall thereafter fund each U.S. Loan required to be made by them
hereunder by making available the amount thereof to the Administrative Agent
for the account of CFC at the office of the Administrative Agent set forth in
Section 13.2 in funds immediately available to the Administrative Agent.
13.4 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of either 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 of
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.
13.5 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.
13.6 Payment of Expenses. Each of CFC and, as applicable,
CCCL, agrees:
(a) to pay or reimburse the Administrative Agent for all
reasonable out-of-pocket costs and expenses incurred in connection
with the preparation and execution of, and any amendment, supplement
or modification to or waiver under, this Agreement and any other
documents prepared in connection herewith, and the consummation of
the transactions contemplated hereby and the administration of this
Agreement, including, without limitation, the reasonable fees and
disbursements of Simpson Thacher & Bartlett, special counsel to the
Administrative Agent and the Banks;
(b) to pay or reimburse each Bank and each Agent for all
costs and expenses (other than legal fees and disbursements) incurred
in connection with the enforcement or preservation of any rights
under this Agreement and any such other documents, and the reasonable
fees and disbursements of one firm of special counsel in each of the
United States and Canada to the Agents and the Banks; and
(c) to (i) indemnify each C$ Bank from and against any loss
or expense which such C$ Bank may sustain or incur as a consequence
of the imposition or payment of any Taxes or Other Taxes imposed
under the laws of Canada or any province thereof in respect of any
Facility Fee payable to such C$ Bank's Related US$ Bank, except that
no C$ Bank may request indemnification for any Taxes or Other Taxes
under this clause (i) to the extent that (x) such Taxes or Other
Taxes would have been avoided or reduced by such Bank's properly
claiming the benefit of any exemption from or reduction of such Taxes
or Other Taxes (whether provided by statute, treaty or otherwise) or
by such Bank's taking any other action which in its judgment is
reasonable to avoid or reduce such Taxes or Other Taxes, provided
that such Bank shall not be required to (1) take any action which in
the reasonable judgment of such Bank could directly or indirectly
result in any increased cost or expense or in any loss of opportunity
to such Bank unless the relevant Facility Borrower shall have
provided to such
60
Bank indemnity or reimbursement therefor in form and substance
reasonably satisfactory to such Bank or (2) claim or apply any tax
credit against such Taxes or Other Taxes or (y) in the case of Other
Taxes, such Other Taxes result from the voluntary allocation by such
Related US$ Bank of any portion of such Facility Fee to such C$ Bank;
(ii) indemnify each Bank from and against liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements (other than legal fees and disbursements)
of any kind whatsoever (and, with respect to any proceeding or
related proceedings, the reasonable fees and disbursements of one
firm of special counsel to the relevant Banks in connection with such
proceeding(s)) which may at any time (including, without limitation,
at any time following the payment of the Loans) be imposed on,
incurred by or asserted against such Bank in any way relating to or
arising out of this Agreement or any other documents contemplated by
or referred to herein or the transactions contemplated hereby or any
action taken or omitted by such Bank under or in connection with any
of the foregoing, provided that no Borrower 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 (x) the ordinary course of
administration of this Agreement or such other documents by any Bank
or (y) any Bank's gross negligence or willful misconduct or bad
faith; and (iii) pay or reimburse (x) each Bank for any payments made
by such Bank to either Agent or CASC pursuant to the provisions of
Section 10.7 and (y) each Agent and CASC for any and all liabilities,
expenses or disbursements incurred by any of them which pursuant to
the provisions of Section 10.7 are the subject of indemnification
payments from the Banks to the extent that such Agent or CASC, as the
case may be, for whatever reason, did not receive such
indemnification payments from any Bank or Banks.
The agreements in this Section 13.6 shall survive repayment of the Loans and
all other amounts payable hereunder.
13.7 Successors and Assigns. (a) This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns except that (x) no Facility Borrower may
assign its rights or obligations hereunder without the prior consent of all of
the Banks (in the case of CFC) or all of the C$ Banks (in the case of CCCL),
and (y) no assignment by a Bank of any of its rights or obligations hereunder
shall be effective unless (i) the assignee is a Commercial Bank (unless
otherwise agreed by CFC in its sole discretion), (ii) the assignee shall have
designated in writing to the Administrative Agent an account at the office of
a bank that is an ACH member to serve as such assignee's "Clearing Account"
hereunder, (iii) in the event of an assignment of less than all of such Bank's
obligations, (A) the principal amount of such Bank's obligations (which may
constitute U.S. Commitments and/or Canadian Commitments) so assigned shall be
in an aggregate amount of $10,000,000 or greater and (B) after giving effect
to any such assignment, the transferor Bank and the assignee (in each case
together with any Bank which is a subsidiary, affiliate, branch or agency of
such transferor Bank or assignee, respectively) shall each have obligations
hereunder (which may constitute U.S. Commitments and/or Canadian Commitments)
aggregating not less than $24,500,000 (unless, in each case, at CFC's
discretion, a lesser amount is mutually agreed upon between CFC and such Bank
or assignee, as applicable), (iv) CFC and the Administrative Agent shall have
consented to the making of such assignment (which consent in each case shall
not be unreasonably withheld or delayed), (v) the transferor Bank, the
assignee, the Administrative Agent and CFC (if its consent to such assignment
is required hereunder) shall have executed and delivered an Assignment and
Acceptance substantially in the form of Exhibit D-1, (vi) after giving effect
to any such assignment by a US$ Bank, the Aggregate U.S./Foreign Extensions of
Credit of such Bank shall not exceed its U.S. Commitment, and (vii) the
transferor Bank shall have paid to the Administrative Agent a registration and
processing fee of $2,500 (or such lesser amount as may be agreed to by the
61
Administrative Agent); provided, however, that no consent by CFC shall be
required in the case of assignments to a Commercial Bank controlled by,
controlling or under common control with an assignor Bank or pursuant to a
merger or consolidation of such Bank with another entity or a similar
transaction involving such Bank and provided further, that a U.S. L/F Bank or
C$ L/F Bank may so assign all or a portion of such rights and obligations to a
Person that shall become a U.S. L/F Bank or C$ L/F Bank, as the case may be,
hereunder only if notice of the designation of such new L/F Bank shall have
been delivered to the Administrative Agent (and, in the case of a new C$ L/F
Bank, the Canadian Administrative Agent) prior to such assignment. Upon the
effectiveness of any assignment pursuant to this Section 13.7, Schedule I
shall be deemed to be amended to reflect such assignment. Each Bank may sell
participations in its Commitment or in all or any part of any Facility Loan
made by it hereunder to a Commercial Bank, in which event the participant
shall not have any rights under this Agreement (the participant's rights
against such Bank in respect of such participation to be those set forth in
the agreement executed by such Bank in favor of the participant thereto) and
all amounts payable by the Facility Borrowers under Sections 2, 3 and 4 shall
be determined as if such Bank had not sold such participations; provided that
(1) the terms of any participation agreement or certificate relating to any
such participation shall prohibit any subparticipations by such participant;
(2) any such participation agreement or certificate shall permit the Bank
granting such participations the right to consent to waivers, amendments or
supplements to this Agreement without the consent of such participant except
in the case of (x) waivers of any Default or Event of Default described in
Section 9(a), and (y) any amendment or modification extending the maturity of
any Facility Loan, or reducing the interest rate in respect of any Facility
Loan, or reducing any Facility Fee, or extending the time of payment of
interest on any Facility Loan or of any Facility Fee, or reducing the
principal amount of any Facility Loan, in each case to the extent such waiver,
amendment or supplement directly affects such participant and (3) a
participating interest of at least $10,000,000 shall be sold pursuant to any
such participation (unless, at CFC's discretion, a lesser amount is mutually
agreed upon between CFC and such Bank).
(b) Nothing herein shall prohibit any US$ Bank from pledging
or assigning all or any portion of its U.S. Loans to any Federal Reserve Bank
in accordance with applicable law. In order to facilitate such pledge or
assignment, CFC hereby agrees that, upon request of any US$ Bank at any time
and from time to time after CFC has made its initial borrowing hereunder, CFC
shall provide to such Bank, at CFC's own expense, a promissory note,
substantially in the form of Exhibit E, evidencing the U.S. R/C Loans or U.S.
L/F Loans owing to such Bank.
(c) (i) The Administrative Agent shall maintain at its
address referred to in Section 13.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "U.S. Register") for the recordation of
the names and addresses of the US$ Banks, the U.S. Commitments of such Banks,
and the principal amount of each category of U.S. Loan owing to each such Bank
from time to time. The entries in the U.S. Register shall be conclusive, in
the absence of clearly demonstrable error, and CFC, the Administrative Agent
and the Banks may treat each Person whose name is recorded in the U.S.
Register as the owner of the U.S. Loans recorded therein for all purposes of
this Agreement. The U.S. Register shall be available for inspection by CFC or
any US$ Bank at any reasonable time and from time to time upon reasonable
prior notice. The Administrative Agent shall give prompt written notice to CFC
of the making of any entry in the U.S. Register or any change in any such
entry.
(ii) The Canadian Administrative Agent shall maintain at its
address referred to in Section 13.2 a register (the "Canadian Register") for
the recordation of the names and addresses of the C$ Banks, the Canadian
Commitments of such Banks, and the principal amount of each category of C$
Loan owing to each such Bank from time to time. The entries in the Canadian
Register shall be conclusive, in the absence of clearly demonstrable error,
and CCCL, the Canadian Administrative
62
Agent and the Banks may treat each Person whose name is recorded in the
Canadian Register as the owner of the C$ Loans recorded therein for all
purposes of this Agreement. The Canadian Register shall be available for
inspection by CFC, CCCL or any C$ Bank at any reasonable time and from time to
time upon reasonable prior notice. The Canadian Administrative Agent shall
give prompt written notice to CCCL of the making of any entry in the Canadian
Register or any change in any such entry.
13.8 Right of Set-off. Upon (a) the occurrence and during
the continuance of an Event of Default and (b) with the consent of the
Required Banks, each Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (including,
without limitation, its branches) to or for the credit or the account of
either Facility Borrower against any and all of the obligations of such
Facility Borrower now or hereafter existing under this Agreement, irrespective
of whether or not such Bank shall have made any demand under this Agreement
and although such obligations may be unmatured. Each Bank agrees promptly to
notify the relevant Facility Borrower 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. The rights of each Bank
under this Section 13.8 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Bank may
have.
13.9 Adjustments. If any Bank (a "benefitted Bank") shall at
any time, except in connection with any termination, replacement or assignment
of or by such Bank pursuant to this Agreement, receive any payment of all or
part of its U.S. Loans or C$ Loans, 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 clause
(f) of Section 9, or otherwise) in a greater proportion than any such payment
to, or any collateral received by, any other Bank, if any, in respect of such
other Bank's U.S. Loans or C$ Loans, as the case may be, or interest thereon,
such benefitted Bank shall purchase for cash from the other US$ Banks or C$
Banks, as the case may be, such portion of each such other Bank's U.S. Loans
or C$ Loans, as the case may be, or shall provide such other relevant 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 other
relevant 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. Each Facility Borrower
agrees that each Bank so purchasing a portion of another Bank's U.S. Loans or
C$ Loans, as the case may be, may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such portion as fully
as if such Bank were the direct holder of such portion.
13.10 New Banks; Commitment Increases; Commitment
Reallocations. (a) With the consent of CFC and upon notification to the
Administrative Agent, one or more additional Commercial Banks may become a
party to this Agreement by executing a New Bank Supplement hereto with CFC and
the Administrative Agent, substantially in the form of Exhibit D-2, whereupon
such Commercial Bank (herein called a "New Bank") shall become a Bank for all
purposes and to the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this Agreement, and Schedule I hereto
shall be deemed to be amended to add the name and Commitment of such New Bank.
Each New Bank shall be designated as a US$ Bank with a U.S. Commitment and/or
a C$ Bank with a Canadian Commitment, as specified in such New Bank
Supplement.
63
(b) With the consent of CFC and upon notification to the
Administrative Agent, any Bank may increase the amount of its Commitment by
executing a Commitment Increase Supplement hereto with CFC and the
Administrative Agent, substantially in the form of Exhibit D-3, whereupon such
Bank shall be bound by and entitled to the benefits of this Agreement with
respect to the full amount of its Commitment as so increased (which increase
shall be allocated to its U.S. Commitment and/or its Canadian Commitment, as
specified in such Commitment Increase Supplement), and Schedule I hereto shall
be deemed to be amended to add the increased Commitment of such Bank.
(c) With the consent of the Administrative Agent (which
shall not be unreasonably withheld), so long as no Default or Event of Default
shall have occurred and be continuing, CFC may reallocate all or any portion
of the Canadian Commitment of any C$ Bank to the U.S. Commitment of such C$
Bank's Related US$ Bank or reallocate all or any portion of the U.S.
Commitment of any US$ Bank to the Canadian Commitment of such US$ Bank's
Related C$ Bank by executing a Commitment Reallocation Supplement hereto with
the Administrative Agent, substantially in the form of Exhibit D-4, whereupon
the affected US$ Bank and C$ Bank shall be bound by and entitled to the
benefits of this Agreement with respect to the full amount of the U.S.
Commitment or Canadian Commitment of such Bank after giving effect to such
reallocation, and Schedule I hereto shall be deemed to be amended to reflect
such reallocation. Each reallocation pursuant to this Section 13.10(c) shall
be subject to the prior written consent of the affected US$ Bank and C$ Bank,
provided, that (i) each C$ Bank and its Related US$ Bank confirm that, as of
the date hereof, such C$ Bank and its Related US$ Bank are willing to consider
any reallocation of such Related US$ Bank's U.S. Commitment to such C$ Bank's
Canadian Commitment which does not increase such C$ Bank's Canadian Commitment
above its Maximum Canadian Commitment Amount and (ii) no such consent shall be
required in connection with the reallocation of a C$ Bank's Canadian
Commitment after such Bank has sought reimbursement pursuant to Section
13.6(c)(i) (it being understood that such reallocation shall not affect CFC's
obligation to make such reimbursement) so long as such reallocation will not
result in any additional costs, liabilities or expenses to such Bank or its
Related US$ Bank (other than liabilities consisting of the assumption by such
US$ Bank of such reallocated Commitment and the making of any U.S. Loans in
connection therewith).
(d) (i) If on the date upon which a Commercial Bank becomes
a New Bank (designated as a US$ Bank), upon which a Bank obtains a U.S.
Commitment or upon which a US$ Bank's U.S. Commitment is changed pursuant to
Section 13.10, there is an unpaid principal amount of U.S. R/C Loans, CFC
shall borrow U.S. R/C Loans from, or prepay U.S. R/C Loans of, such Bank, as
applicable, in an amount such that, after giving effect thereto, the quotient
of (x) the U.S. R/C Loans of such Bank of each Type (and, in the case of
Eurodollar Loans, of each Eurodollar Tranche) and (y) such Bank's U.S.
Commitment is equal to the comparable quotient of each other US$ Bank;
provided, that after the first Foreign Currency Subfacility becomes effective
hereunder, the amount of such borrowing or prepayment shall instead be
determined by reference to the amount of each Type of U.S. R/C Loan (and, in
the case of Eurodollar Loans, of each Eurodollar Tranche) which would have
been outstanding from such Bank if (1) each such Type or tranche had been
borrowed on the date of the relevant change in such Bank's U.S. Commitment
after giving effect to such change and (2) the aggregate amount of each such
Type or tranche requested to be so borrowed had been increased or decreased,
as the case may be, to the extent necessary to give effect, with respect to
such Bank, to the first sentence of Section 4.8(a). Any Eurodollar Loan
borrowed pursuant to the preceding sentence shall bear interest at a rate
equal to the respective interest rates then applicable to the Eurodollar Loans
of the other US$ Banks in the same Eurodollar Tranche.
(ii) If on the date upon which a Commercial Bank becomes a
New Bank (designated as a C$ Bank), upon which a Bank obtains a Canadian
Commitment or upon which a C$ Bank's
64
Canadian Commitment is changed pursuant to Section 13.10, there is an unpaid
principal amount of C$ Loans (other than C$ L/F Loans), CCCL shall borrow C$
Loans from, or prepay or cash collateralize (in the case of Bankers'
Acceptances) C$ Loans of, such Bank, as applicable, in an amount such that,
after giving effect thereto, the quotient of (x) the C$ Loans (other than C$
L/F Loans) of such Bank of each category (and, in the case of Bankers'
Acceptances, of each maturity) and (y) such Bank's Canadian Commitment is
equal to the comparable quotient of each other C$ Bank. Any Bankers'
Acceptance borrowed pursuant to the preceding sentence shall yield an
Acceptance Fee at a rate equal to the respective Acceptance Fee rates then
applicable to the Bankers' Acceptances of the other C$ Banks having comparable
maturities.
(e) The Administrative Agent shall advise the Canadian
Administrative Agent and the Banks of each addition of a New Bank and of each
change in a Bank's U.S. Commitment or Canadian Commitment pursuant to this
Section 13.10 and of the amount of any borrowing or prepayment required to be
made from or to any such Bank pursuant to this Section 13.10 upon such
addition or change.
13.11 Changing Designations of Liquidity Facility Banks. CFC
shall have the right to change the designation of a Bank, U.S. L/F Bank or C$
L/F Bank to (a) cause a US$ Bank to become a U.S. L/F Bank, (b) cause a C$
Bank to become a C$ L/F Bank or (c) cause a U.S. L/F Bank or C$ L/F Bank to no
longer be a U.S. L/F Bank or C$ L/F Bank, as the case may be, provided that no
such change shall become effective unless (i) the Bank affected thereby shall
have agreed to such change and (ii) prior written notification thereof shall
have been delivered to the relevant Agent. Upon the occurrence of any change
of designation pursuant to this Section 13.11, Schedule I shall be deemed to
be amended to reflect such change.
13.12 Tax Forms. If any Bank which becomes a party to this
Agreement on any day after the date hereof pursuant to Section 13.7 or 13.10
is organized under the laws of any jurisdiction other than the United States
or any state thereof, such Bank shall, on the date such Person becomes a Bank,
(i) represent to the transferor Bank (if applicable), the Administrative Agent
and the Facility Borrowers that under applicable law and treaties no taxes
will be required to be withheld by the Administrative Agent, the Facility
Borrowers or the transferor Bank (if applicable) with respect to any payments
to be made to such Bank in respect of the Facility Loans hereunder, (ii)
furnish to the transferor Bank (if applicable), the Administrative Agent and
CFC either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue
Service Form 1001 (wherein such Bank claims entitlement to complete exemption
from U.S. federal withholding tax on all interest payments hereunder) and
(iii) agree (for the benefit of the transferor Bank (if applicable), the
Administrative Agent and the Facility Borrowers) to provide the transferor
Bank (if applicable), the Administrative Agent and CFC a new Form 4224 or Form
1001 upon the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Bank, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
13.13 Counterparts. This Agreement may be executed by one or
more of the parties hereto 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 CFC and the Administrative Agent.
13.14 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
65
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
13.15 Submission to Jurisdiction; Waivers. Each Facility
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action
or proceeding commenced by any party hereto 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 State of New York, the courts of the United States of
America for the Southern District of New York, 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 services 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 CFC at its address set forth in Section 13.2 or at such
other address of which the Administrative Agent shall have been
notified with copies addressed as set forth in Section 13.2; 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 sue in any other jurisdiction.
13.16 Integration. This Agreement represents the agreement
of each party with respect to the subject matter hereof and there are no
promises or representations by either Agent or any Bank relative to the
subject matter hereof not reflected herein.
13.17 Judgments Relating to CCCL. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum owing
hereunder by CCCL in one currency into another currency, CCCL agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the relevant Bank could purchase the first currency with
such other currency for the first currency on the Banking Day immediately
preceding the day on which final judgment is given.
(b) The obligations of CCCL in respect of any sum due in C$
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than C$, be discharged only to the extent that, on
the Banking Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction
purchase C$ with the Judgment Currency; if the amount of C$
66
so purchased is less than the sum originally due to the Applicable Creditor in
C$, CCCL agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Applicable Creditor against such loss, provided,
that if the amount of C$ so purchased exceeds the sum originally due to the
Applicable Creditor, the Applicable Creditor agrees to remit such excess to
CCCL. The obligations of the CCCL contained in this Section 13.17 shall
survive the termination of this Agreement and the payment of all other amounts
owing hereunder.
13.18 WAIVERS OF JURY TRIAL. THE FACILITY BORROWERS, THE
ADMINISTRATIVE AGENT, THE CANADIAN ADMINISTRATIVE AGENT 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 hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By: /s/ David A. Robison
---------------------
Title: Vice President and Treasurer
CHRYSLER CREDIT CANADA LTD.
By: /s/ David A. Robison
---------------------
Title: Vice President and Treasurer
CHEMICAL BANK,
as Administrative Agent
By: /s/ Rosemary Bradley
---------------------
Title: Vice President
ROYAL BANK OF CANADA,
as Canadian Administrative Agent
By: /s/ William Stanley
---------------------
Title: Manager, Business Operations