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EXHIBIT 10.31
TERMS AND CONDITIONS OF CREDIT FACILITY
1. OPERATING CREDIT FACILITY
1.1 AMOUNT AND PURPOSE
The Bank, subject to the terms and conditions hereof, agrees to make
available to the Borrower an operating credit facility of 30 000
000,00$, in Canadian Dollars or its equivalent in American Dollars, to
finance the Borrower's operating requirements, which operating credit
replaces any operating credit previously granted by the Bank in favour
of the Borrower.
1.2 TERM
This operating credit may be review from time to time by the Bank and
is repayable on demand.
1.3 MODES OF FINANCING
Subject to the terms and conditions provided herein, the Borrower may,
within the amount available to it under the present credit, avail
itself of one or the other of the following forms or a combination
thereof:
1.3.1 Floating Rate Advances in Canadian Dollars; and/or
1.3.2 Floating Rate Advances in American Dollars; and/or
1.3.3 Bankers' acceptances in Canadian Dollars; and/or
1.3.4 Letters of guarantee or Letters of credit in Canadian Dollars or
in any other currency acceptable to the Bank; and/or
1.3.5 Libor Loans.
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1.4 INTEREST RATE
1.4.1 Floating Rate advances in Canadian Dollars:
Floating Rate advances in Canadian dollars shall bear interest, until
payment in full, at an annual interest rate equal to the Canadian
Prime Rate of the Bank.
1.4.2 Floating Rate advances in American Dollars:
Floating Rate advances in American Dollars shall bear interest, until
payment in full, at an annual interest rate equal to the American
Prime Rate of the Bank.
1.4.3 Payment of interest
Interest on the Floating Rate advances shall be payable montly on the
26th day of each month (or any other day of the month that the Bank
may choose) with interest at the same rate on any amount in arrears.
1.5 ADVANCES AND REPAYMENT
The Borrower may draw upon the amount made available to it by virtue
of these presents, by satisfying the terms and conditions specified
herein and subject to the execution of any document that may be
requested by the Bank in order to give full effect to the provisions
contained herein.
Disbursement and repayment of the operating credit shall be made in
multiples of 25 000,00$.
The principal amount of the Floating Rate advances shall be payable on
demand.
The Borrower may repay all or part of its Floating Rate advances at
any time during the credit, without penalty.
The Bankers' acceptances and the Libor Loan shall be repaid only at
maturity.
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1.6 BANKER'S ACCEPTANCES
The utilization of the present credit by way of Bankers' acceptances
may be exercised by the Borrower at any time subject to the following
conditions:
-A prior written notice of two business days must be given to the
Bank.
-The drawing shall be for an aggregate minimum amount of 500 000,00$
Cndian dollars and in integral multiples of 100 000,00$ Cndian dollars
for any sums in excess of such amount.
-The Borrower may use 100% of the present credit by way of Bankers'
acceptances, without exceeding the amount of credit then available.
-The period choosen shall not be less than 3 days and shall not exceed
30 days, and the Borrower shall not be entitled to claim any day of
grace for payment.
-The Borrower shall pay stamping fees on the nominal face value of the
Bankers' Acceptances, at the rate of 0,75% per annum (for the number
of days included in the selected period); such fees shall be payable
at the time of acceptance of such Bankers' Acceptances.
-Subject to the terms and conditions herein, the Bank undertakes to
remit to the Borrower, the nominal face value of the Bankers'
Acceptance issued less the discount applicable thereto.
-Without restricting the right of the Bank to ask on its demand the
repayment of the credit, the Borrower may, by giving a prior written
notice of two business days to the Bank before the maturity of any
Bankers'
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Acceptances, reissue in whole or in part, such Bankers' Acceptances,
the whole in accordance with and subject to the provisions of this
Offer.
-Bankers' Acceptances shall constitute a utilization of the credit to
the extent of their nominal face value and shall automatically, on the
maturity date thereof, be deemed to have been converted to Floating
Rate Advances and shall then bear interest at the interest rate
hereinabove mentioned in paragraph 1.4.1, unless the Borrower repaid
such Bankers' Acceptances or shall have given the necessary notice in
order to reissue such Bankers' Acceptances.
-Notwithstanding the foregoing, the acceptance by the Bank of Bankers'
Acceptances is conditionnal to availability of funds on the money
market.
1.7 LETTERS OF GUARANTEE, LETTERS OF CREDIT
Any request for the issuance of a Letter of guarantee or a Letter of
credit, which request may be made at any time by the Borrower, shall
be subject to the following conditions:
1.7.1 WRITTEN NOTICE
A prior written notice of two (2) business days must be given to the
Bank.
1.7.2 LIMITED AMOUNT
The total amount of Letters of guarantee and Letters of credit must
never exceed 5 000 000,00$ in Canadian dollars or its equivalent in
any other currency acceptable to the Bank.
1.7.3 MATURITY DATES
Letters of guarantee shall mature on a date which shall not be less
than 30 days and no more than 365 days; Letters of credit shall be
payable at sight or shall mature on a date which shall not be more
than 90 days; Letters of guarantee and Letters of credit shall
constitute a utilization of the credit to the extent of their nominal
face value and
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shall automatically, when paid, become Floating Rate Advances and
shall then bear interest at the interest rate hereinabove mentioned in
paragraphs 1.4.1 or 1.4.2 as the case may be.
1.7.4 COMMISSIONS
1.7.4.1 LETTERS OF GUARANTEE
For each letter of guarantee to be issued by the Bank, the borrower
shall pay to the Bank a commission of 0,75% per annum, based on the
amount of the Letter of guarantee and calculated as and from the date
of issuance for the entire duration of such Letter; such commission
being payable in advance at the date of issuance of the Letter of
guarantee.
1.7.4.2 LETTERS OF CREDIT
The Borrower shall pay to the Bank at the date of issuance of any
letter of credit a commission based on the usual scheduled fees of the
Bank.
1.7.5 DOCUMENTATION
No Letter of guarantee shall be issued by the Bank unless the Borrower
has executed and delivered the documents required in connection
therewith, which documents shall be in accordance with the forms in
use at the Bank.
1.8 LIBOR LOAN
Advances in U.S. dollars at Libor rate are subject to the following
conditions:
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1.8.1 WRITTEN NOTICE
A prior written notice of three (3) business days must be given to the
Bank.
This notice, which will have to be substantially in the form attached
hereto as Schedule "B", will indicate the amount that the Borrower
intends to submit to the Libor Loans, the selected period of time and
the date on which the Libor loan option will be applicable
(hereinafter called "reference date"). Upon the Bank receiving this
notice, the choice made by the Borrower in the notice shall be
considered as final and irrevocable.
1.8.2 AMOUNT AND MATURITY DATES
The Libor loan shall be in minimum amounts of 500 000,00$ U.S. dollars
and integral multiples of 100 000,00$ U.S. dollars above this amount,
without exceeding the amount of credit then available.
The Libor loan option shall be, at the borrower's choice, for periods
of time of 1 month, 3 months or 6 months ("Libor period) subject to
availability of the market.
1.8.3 INTEREST RATE
The amount which at any time and from time to time remains outstanding
and upon which the Borrower has elected to repay as a Libor loan,
shall bear interest, computed daily, on the daily balance of the said
amount, from the reference date, at an annual rate equal to the Libor
rate plus 0,75%. Such interest shall be payable at the maturity of
each Libor period. However, when the Libor period exceeds 3 months,
interest shall be payable quarterly beginning the first day of the
quarter following the reference date.
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1.8.4 ANNUAL EQUIVALENT
The interest applicable to the Libor loan option are computed daily on
a basis of a year of 360 days, consequently, the actual annual rate of
interest applicable to the Libor loan shall be equal to:
(Libor rate plus 0,75%) x 365 * = % per annum
360
* In a leap-year, 365 is replaced by 366.
1.8.5 AVAILABILITY
Notwithstanding the foregoing, the acceptance by the Bank of each
Libor loan request by the Borrower, is conditionnal to availability of
U.S. dollars on the London Interbank Market.
1.9 FINANCING CONDITIONS
The aggregate total amount of advances made by virtue of this
Operating Credit Facility, including Bankers' Acceptances, Letters of
guarantee, Letters of credit and Libor Loans, shall not at any time
exceed the value of 80% of the Borrower's net accounts receivable
(excluding contra or inter-company accounts, accounts of doubtful
quality and those aged 90 days or more).
The value of the Borrower's net accounts receivable shall be
established, from time to time, by the Bank, taking into account
claims ranking prior to the security of the Bank. The Borrower shall
furnish to the Bank, on the 20th day of each month, a detailed list of
its accounts receivable according to age, and a detailed list of its
accounts payable for the month ending on the last day of the preceding
month.
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2. CURRENCY AND PLACE OF PAYMENT
All amounts due by the Borrower under this Offer shall be paid by the
Borrower to the Bank at the branch of the Bank where the Borrower operates
its bank account.
The advances in U.S. dollars together with the interest, commissions and
fees relating thereto, shall be repaid by the Borrower in U.S. dollars. The
advances in Canadian dollars together with the interest, commissions and
fees relating thereto shall be repaid by the Borrower in Canadian dollars.
3. SECURITY
The repayment of advances made hereunder, the payment of interest, fees and
all other amounts payable thereunder and in virtue of the security
documents, and the performance of all obligations present and future of the
Borrower towards the Bank, as well as the obligations of the Bank under the
Bankers' Acceptance, Letters of guarantee and Letters of credit, shall be
secured by the following security to be granted to the Bank by the
Borrower, which security shall be in accordance with the forms in use at
the Bank:
-a first ranking movable hypothec in the amount of 30 000 000,00$ on
the universality of the accounts receivable of the Borrower, present
and future;
-a general assignment of all accounts receivable of the Borrower, to
be registered in the province of Ontario and in all other provinces
where the Borrower has a place of business;
-a subordination agreement and a postponement of claims by Fritz
Companies Inc. and Fritz Companies Canada Inc. in favour of the Bank
for all sums due or to become due by the Borrower (which was
approximately 7 154 000,00$ as of December 31, 1995).
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4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants to the Bank that:
4.1 It is a duly constituted, registered and organized company and is
in good standing under the laws governing it, and it has the powers,
permits and licences required to carry on its business and to own,
operate and administer its property.
4.2 There has been no material adverse change in its financial
position since the date of its most recent financial statements dated
December 31st, 1995, which have been provided to the Bank. These
statements represent fairly, at the date they were drawn up, its
financial position. The Borrower does not foresee incurring any
significant liabilities which have not already been disclosed to the
Bank.
4.3 It is not a party to any litigation or legal proceedings which
could have a material effect on its financial position or on its
ability to carry on its business.
4.4 It has good and marketable title to all its property free and
clear of all prior claims, mortgages, hypothecs, pledges, liens or
other similar encumbrances except for such security granted in favour
of the Bank.
4.5 It is not in default under the agreements to which it is a party
nor under the legislation and regulations applicable to the conduct
of its business including, without limitation, any environmental
requirements.
4.6 All taxes, assessments, deductions at source, income tax or
annuities for which the payment thereof is guaranteed by prior claim
and/or legal hypothec have been paid by the Borrower without
subrogation or consolidation.
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5. CONDITIONS PRECEDENT TO ANY RENEWAL OR DISBURSEMENT
At the time of the renewal or disbursement of the credit facility, the
Borrower shall, as applicable, provide, execute or perform the following to
the satisfaction of the Bank and its legal advisers:
5.1 REPRESENTATIONS AND WARRANTIES
The representations and warranties contained in the Section
entitled "REPRESENTATIONS AND WARRANTIES OF THE BORROWER" hereof
shall continue to be true and exact and shall survive the
execution of this or any subsequent agreements.
5.2 DOCUMENTS REQUIRED
The following documents shall be furnished to the Bank in form
and substance satisfactory to it:
-a duly certified copy of the corporate documents of the Borrower
and certificates of good standing and conformity;
-a duly certified copy of the borrowing by-law and resolution of
the Board of Directors of the Borrower relating to its authority
to execute these presents and to perform its obligations
hereunder and in virtue of the security documents;
-a certificate setting forth the functions and signatures of the
individuals authorized to represent the Borrower;
-a copy of the standard agreement or contract used by the
Borrower with its clients;
-the instruments or contracts creating the security contemplated
in section 3 herein, duly executed and registered in all places
where such registration and filing is necessary and duly
signified or served, if necessary;
-a written opinion, in form and substance acceptable to the Bank
and its legal advisers, from the legal advisers of the Borrower
regarding the status and the capacity to perform the obligations
described in this Offer and in virtue of the security documents;
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-a written opinion from the Bank's legal advisers regarding the
registration, validity and rank of the security documents
provided for in this Offer;
-any other document that the Bank may reasonably request.
6. OBLIGATIONS OF THE BORROWER
6.1 POSITIVE COVENANTS
Until payment in full of any amounts due under the terms of this
Offer, the Borrower shall:
6.1.1 carry on its business in a diligent and continuous manner;
6.1.2 use the proceeds of the credit facility for the purposes
provided for herein;
6.1.3 keep and maintain books of account and other accounting records
in accordance with generally accepted accounting principles and
shall furnish to the Bank its consolidated and non-consolidated
audited annual financial statements within 90 days of the end of
its fiscal year, as well as its In-house consolidated and
non-consolidated financial statements, on a monthly basis,
within 20 days of the end of each month;
6.1.4 maintain, at any time, on a cosolidated basis, a Working Capital
Ratio greater than or equal to 1.00 : 1.00;
6.1.5 at all times during normal business hours, and upon reasonable
notice, give the Bank's representatives the right to inspect its
establishments and provide access thereto, and further permit
the Bank's representatives to examine its books of account and
other records, and, if a default has occurred, take extracts
therefrom and/or copies thereof;
6.1.6 maintain, at all times, insurance coverage on its property
against loss or damage caused by fire and any other risk;
6.1.7 obtain and maintain in effect the permits and licenses required
to carry on its business;
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6.1.8 notify the Bank, without delay, of any event of default or any
event which, following notice or the expiry of a delay, could
constitue an event of default;
6.1.9 punctuallypay all taxes, assessments, deductions at source,
income tax or annuities for which the payment thereof is
guaranteed by prior claim and/or legal hypothec, without
subrogation or consolidation;
6.1.10 provide the Bank with all informations and documents that the
Bank may reasonably request.
6.2 NEGATIVE COVENANTS
The Borrower undertakes not to carry out the following
transactions or operations without obtaining the prior written
consent from the Bank:
6.2.1 substantially change the nature of its operations or business;
6.2.2 change the control or the shareholding of the Borrower, which is
totally (100%) held by Fritz Companies Canada Inc.; or, merge
with another company, dissolve or wind up the company, unless
the Borrower stays within the control of the Fritz Family of
Companies;
6.2.3 declare or pay bonus to its officer, directors or shareholders
and/or declare or pay dividends on its shares for an amount
higher than its net earnings;
6.2.4 purchase or redeem its shares or otherwise reduce its capital;
6.2.5 grant a loan or an investment or provide financial assistance to
any subsidiary, affiliated or associated company, or to any
third party by way of a guarantee or otherwise other than in the
ordinary course of business;
6.2.6 grant loans to its officers, directors or shareholders other
than in the ordinary course of business;
6.2.7 give a security or a lien on its accounts receivables, save and
except such security granted to the Bank.
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7. DEFAULT
7.1 EVENTS OF DEFAULT
The occurence of one or more of the following events, shall constitute
a default under these presents:
7.1.1 if the Borrower fails to make a payment, on demand or when due,
of principal and/or interest under the terms hereof;
7.1.2 if the Borrower fails to make a payment, within ten (10) days
when due, of fees, commissions or any other amount which may
become due hereunder or under any of the security documents
provided for herein; or
7.1.3 if the Borrower fails to perform or otherwise breaches any
obligation hereunder or pursuant to any of the security documents
provided for herein, and if such default has not been remedied
within fifteen (15) days following the date of notification
thereof by the Bank; or
7.1.4 if the Borrower becomes subject to the provisions of the
Bankruptcy and Insolvency Act (Canada) or of any other
bankruptcy, insolvency or winding up legislation; or, if for any
reason the Borrower ceases to carry on its business or if an
adverse material change occur in its financial situation; or
7.1.5 if proceedings are instituted for the Borrower's dissolution,
winding-up or suspension of its operations; or
7.1.6 if the property of the Borrower or a substantial part thereof
becomes subject to a hypothecary recourse or be subject to a
taking of possession by a creditor or be seized or if a
sequestrator is appointed; or
7.1.7 if the Borrower is in default under the terms of any other
contracts, agreements or writings with the Bank or any other
financial institution, in an aggregate amount of at least THREE
MILLION DOLLARS (3 000 000,00$); or
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7.1.8 if any representation or warranty made by the Borrower herein or
in any document or certificate furnished to the Bank in
connection herewith proves to be materially incorrect or
erroneous in an important manner.
7.2 REMEDIES BY THE BANK IN THE EVENT OF DEFAULT
Without restricting the right of the Bank under these presents or
under the security documents, upon the occurrence of any event of
default, the Bank may:
-declare the principal, the interest and any other amounts owing
to the Bank immediately due and payable and require immediate
payment of the amount of any Letter of credit or Letter of
guarantee then outstanding and of the nominal face value of the
Bankers' Acceptances (even if the bearer of such Letter of
guarantee, Letter of credit or Bankers' Acceptances has not
requested the payment in full or in part or has requested only
partial payment thereof from the Bank);
-terminate the Borrower's right to use the credit facility or any
form of utilization of same;
-exerciseall its rights and recourses available under the law,
under these presents or under the security documents.
All amounts paid by the Bank for costs and expenses incurred for
the recovery of the sums due to the Bank by the Borrower or in
connection with the realization of the security, shall bear
interest at the Canadian or American Prime Rate of the Bank, as
the case may be, plus 2% per annum, until complete and full
payment of such amounts.
In the case of an event of default and the enforcement of the
security, all sums of money received in connection with the
credit facility, including pursuant to a payment made by the
Borrower hereunder, or to the realization of the security, shall
be applied, at the Bank's discretion, to any of the indebtedness
of the Borrower.
7.3 RELATIONS BETWEEN THE BANK AND THE BORROWER
The Bank may grant delays, accept or waive security, accept
arrangements,
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grant releases and discharges and transact with the Borrower as
it shall deem acceptable without in any way limiting the
responsibility of the Borrower or infringing on the rights of the
Bank under the security provided for hereunder, unless otherwise
specified in writing by the Bank and the Borrower.
The omission on the part of the Bank to notify the Borrower of
any event of default hereunder or to avail itself of any of its
rights hereunder shall not be construed as a waiver of such event
of default or right.
The acceptance by the Bank following any default by the Borrower
of any sum owing to it or the exercise by it of any right or
recourse shall not preclude it from exercising any other right or
recourse, all its rights and recourses being cumulative and not
alternative, and in addition to and not in substitution for any
other rights or remedies by the Bank, whether pursuant to any
agreement or otherwise provided by law.
8. MISCELLANEOUS PROVISIONS
8.1 DEFINITIONS
For the purposes hereof, the following words and expressions
shall have the following meaning:
"ADVANCE" OR "ADVANCES": means a utilization in Canadian or
American dollars made by the Borrower of the credit facility
hereunder, other than by way of Letters of guarantee, Letters of
Credit, Bankers' Acceptances or Libor loans.
"AMERICAN DOLLARS" OR "U.S. DOLLARS" OR "U.S.": means lawful
money of the United States of America.
"AMERICAN PRIME RATE": means the annual variable rate of interest
announced from time to time by the Bank and used to determine the
interest rates on American Dollars Commercial Loans granted by
the Bank in Canada.
"BANKERS' ACCEPTANCE(S)": means any bill of exchange in Canadian
dollars drawn by the Borrower on the form provided by the Bank
and accepted by it, pursuant to section 1.6.
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"BUSINESS DAY": means any day, other than a Saturday, Sunday or
any other day which is a legal holiday, on which the offices of
the Bank are open for business in the Province of Quebec. When
this expression is used in a Libor loan it means any day on which
the Bank can make transactions in U.S. dollars on the London
Interbank Market.
"CANADIAN DOLLARS" OR "CNDIAN DOLLARS" OR "CNDIAN$" OR "$": means
lawful money of Canada.
"CANADIAN PRIME RATE": means the annual variable rate of interest
announced from time to time by the Bank and used to determine the
interest rates on Canadian Dollars commercial loans granted by
the Bank in Canada.
"CREDIT" OR "OPERATING CREDIT" OR "OPERATING CREDIT FACILITY" OR
"CREDIT FACILITY" OR "INDEBTEDNESS": means the aggregate amount
of principal, interest and accessoires due by the Borrower
hereunder.
"EQUIVALENT": means the amount stated in the currency to which
may be converted the amount stated in another currency at the
rate of exchange at which the Bank, in accordance with standard
banking practice, would purchase at a cash price at noon
(Montreal time) the required currency paying with the currency to
be converted, on the Canadian Money Market or the Canadian
Foreign Exchange Market, as the case may be, on the business day
when conversion is made.
"FLOATING RATE ADVANCES": means floating rate advances in
Canadian dollars or floating rate advances in American dollars or
a combination thereof, as the case may be.
"LIBOR LOAN": means, as at any time, that portion of the credit
facility with respect to which the Borrower has elected to pay
interest at the Libor rate and "LIBOR LOANS" means the aggregate
of the Libor Loans.
"LIBOR RATE": means the average, rounded upwards, if necessary,
to the nearest whole multiple of 1/16% of the annual rates of
interest, at which the Bank, in accordance with its normal
practice, would be prepared to offer to leading banks in the
London Interbank Market for a period equal to the period selected
by the Borrower and for deposits in U.S. dollars of comparable
amounts to such amount selected by the Borrower, at or about
10:00 A.M., Montreal time, two (2) business days prior to a
draw-down date for an advance in U.S. dollars.
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"WORKING CAPITAL RATIO": means the ratio between total current
assets and total current liabilities.
8.2 ACCOUNTING TERMS
Unless another definition is provided hereunder, each accounting
term used in this Offer shall have the meaning ascribed to it in
accordance with accounting principles generally accepted by the
Canadian Institute of Chartered Accountants.
8.3 CALCULATION OF INTEREST AND ARREARS
8.3.1 Unless otherwise provided for herein, interest on any
amount due hereunder shall be calculated daily and not in
advance on the basis of a 365-day year (except for the
Libor Loans where the interest is calculated on the basis
of a 360-days year).
8.3.2 For the purposes of the Interest Act (Canada) in the case
of a leap year, the annual interest rate corresponding to
the interest calculated on the basis of a 365-day year is
equal to the interest rate thus calculated multiplied by
366 and divided by 365.
8.3.3 Any amount of principal, interest, commission, discount or
of any other nature remaining unpaid at maturity, shall
bear interest at the rate provided for herein, being
understood that the said interest rate on arrears shall not
exceed the maximum rate provided by law.
8.3.4 Interest on arrears shall be compounded monthly and payable
on demand.
8.3.5 The determination made by the Bank concerning the interest
rate shall be final and shall bind the Borrower unless
there is a manifest error.
8.4 RECORDS
The Bank shall keep records evidencing the transactions effected
under this credit facility. Such records shall be presumed to
reflect these transactions and the debt due to the Bank.
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8.5 LEGAL COUNSEL CHOSEN BY THE BANK
The Bank reserves its right to choose its legal counsel for the
purposes hereof. All reasonable and documented legal fees and
disbursements concerning the preparation, execution and
registration where required, of this offer, and the security
documents, including other ancillary or accessory documentation,
shall be paid by the Borrower. However, under no circumstances
shall the Borrower pay for fees, an amount exceeding 15 000,00$.
8.6 NON-BUSINESS DAYS
Should any payment of capital or interest hereunder become due on
a day which is not a Business Day, the due date thereof shall be
extended to the immediately following Business Day.
8.7 FINAL AGREEMENT AND INTERPRETATION
As soon as this Offer is signed by the Borrower, it shall
constitute the final agreement between the parties hereto with
the exception of any further written modification agreed by the
parties and replaces and supersedes any prior agreements verbal
or written between the parties related to the credit facility
described herein.
Notwithstanding the foregoing, this Offer does not create
novation and does not constitute any derogation to the rights,
privileges and remedies of the Bank under the terms of any
agreements, promissory notes and/or any instruments or contracts
regarding the credit facility or the security contemplated herein
and executed by the Borrower prior to the date of this Offer. The
Borrower represents and warrants that the rights, privileges and
remedies of the Bank under these agreements, promissory notes and
security documents have not been modified and cover the
Borrower's obligations contemplated herein, the whole without
novation.
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8.8 OTHERS DOCUMENTS
The Borrower shall do all things and sign all documents which may
be deemed necessary or appropriate by the Bank for the purposes
of giving full effect to the terms, conditions, undertakings and
security provided herein.
8.9 ADDITIONAL CHARGES
The Borrower undertakes to pay to the Bank the following charges,
as determined by the Bank:
8.9.1 in the event that the cost for the Bank of the credit were
to increase as a result of a law, regulation or
administrative guideline or decision (including, without
limitation, as a result of the application of reserves,
taxes or requirements regarding the capital adequacy of the
Bank), the Borrower shall pay such additional cost on
demand; and
8.9.2 the Borrower shall pay all taxes and additional fees that
could result from the application of the goods and Services
Tax (Canada) and of any applicable provincial taxes of a
similar nature.
8.10 INVALIDITY OF ANY PROVISIONS HEREUNDER
Any provision of this Offer which is or becomes prohibited or
unenforceable in any jurisdiction, shall not invalidate, affect
or impair the remaining provisions hereof and any such
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provisions in any other
jurisdiction.
8.11 AMENDMENTS
No amendment, modification, renewal or waiver of any provision of
this Offer shall in any event be effective unless it is expressly
set out in writing and signed by the Bank and the Borrower.
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8.12 COUNTERPARTS
This offer may be executed in any number of counterparts, each of
which so executed shall be deemed an original, and all such
counterparts taken together shall be deemed to constitute one and
the same instrument.
8.13 MATERIAL CHANGE
If a material change occurs in the nature of the risk inherent in
the credit described herein, the Bank reserves the right to
cancel the said credit at its sole discretion and to demand
repayment of any sum already advanced in respect thereof.
Material change means a material adverse change in, or a material
adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of the Borrower
or the Borrower and its Subsidiaries taken as a whole.
9. REVIEW
Notwithstanding any provisions to the contrary, the terms and conditions
provided for herein are subject to review by the Bank on September 30,
1997.
10. NO ASSIGNMENT BY THE BORROWER
The Borrower shall not transfer or assign its rights hereunder or the
amounts to be received by it hereunder.
11. ACCESS TO INFORMATION
The Borrower hereby authorizes any personal information agent, financial
institution, creditor, tax authority, employer or any other person,
including any public body, holding information concerning the Borrower or
its property including any financial information or with respect to any
undertaking or surety given by the Borrower in favour of third parties,
to supply such information to the Bank for the purposes of verifying
information provided to the Bank or that will be provided by the Borrower
and to ensure its solvency.
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12. NOTICES
Any notice or demand to or upon the respective parties hereto shall be in
writing and shall be validly communicated by the delivery thereof to its
addressee, by hand delivery, certified mail, postage prepaid, or by
telecopying the same, to the addressee hereinafter mentioned, or at such
other address as any of the parties hereto may hereafter notify the other
in writing:
NATIONAL BANK OF CANADA
North American Corporate Banking
Eastern Division
600, de la Gauchetiere west
Montreal (Quebec)
H3B 4L2
Telecopier: (514) 394-6073
At the attention of: Tony Loffreda, Manager
STARBER FRITZ INC.
410, St-Nicolas Street
3rd floor
Montreal (Quebec)
H2Y 2P5
Telecopier: (514) 845-1581
At the attention of: Richard Gervais, Vice-President
with a copy to: GENERAL COUNSEL
FRITZ COMPANIES INC.
706 Mission Street
San Francisco, California, U.S.A.
Any such notice or demand sent as aforesaid shall be deemed to have been
received by the party to whom it is addressed upon delivery, if
delivered, and on the actual receipt thereof, if sent by certified mail,
and when transmitted, if sent
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by telecopier; provided, however, that in the event normal mail
service or telecopier service shall be interrupted by strike, force
majeure or other cause, then the party sending the notice or demand
shall use anyone of the said services which has not been so
interrupted or, failing the availability of any such service, any
other mode of communication which shall ensure prompt receipt of such
notice or demand by the other party.
13. GOVERNING LAW
This Offer shall be construed and interpreted in accordance with the laws
of the Province of Quebec and the laws of Canada applicable herein.
14. LANGUAGE (QUEBEC)
The parties declare that they have requested and do hereby confirm their
request that the present Offer and the ancillary documents related
thereto be in English; les parties declarent qu'elles ont exiges et par
la presente confirment leur demande que la presente offre ainsi que les
documents connexes soient rediges en anglais.
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ACCEPTANCE
We declare to have taken cognizance of this Offer and hereby accept all of its
terms and conditions and obligations.
Signed on Friday , this 19 day of July, 1996.
----------------------------------- ----------
STARBER FRITZ INC.
PER: Richard Gervais
--------------------
Richard Gervais
Vice-President
INTERVENTION
We, the undersigned, hereby declare to have taken cognizance of the present
Offer and undertake to fulfil the obligations and conditions set out in section
3. of this Offer and to execute any document which may be submitted to us by the
Bank in order to give full effect to our commitments.
Signed on Friday , this 19 day of July 1996.
----------------------- -------------
FRITZ COMPANIES INC. FRITZ COMPANIES CANADA INC.
PER: John H. Johung PER: John H. Johung
------------------------------ --------------
John H. Jouung John H. Johung
Executive Vice President Director
& Chief Financial Officer
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