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Exhibit 10.15
1250828 ONTARIO INC.
-AND-
CANADIAN IMPERIAL BANK OF COMMERCE
CREDIT AGREEMENT
DATED AS OF OCTOBER 27, 1997
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TABLE OF CONTENTS
PAGE
PARTIES
RECITALS
ARTICLE ONE
INTERPRETATION
Section 1.01 Definitions.................................................................... 1
Section 1.02 Currency....................................................................... 10
Section 1.03 Words and Phrases.............................................................. 10
Section 1.04 Headings and Table of Contents................................................. 10
Section 1.05 Accounting Terms............................................................... 10
Section 1.06 Schedules...................................................................... 10
Section 1.07 Computation of Time Periods.................................................... 10
Section 1.08 Extended Meaning............................................................... 10
Section 1.09 Statutory References........................................................... 10
Section 1.10 Certificates and Opinions, etc................................................. 11
Section 1.11 Knowledge of the Borrower...................................................... 11
ARTICLE TWO
THE CREDIT
Section 2.01 The Credit..................................................................... 11
Section 2.02 Drawdown Options............................................................... 11
Section 2.03 Non-revolving Nature of the Credit............................................. 11
Section 2.04 Evidence of Indebtedness....................................................... 11
Section 2.05 Drawdown Notice................................................................ 12
Section 2.06 Rollovers...................................................................... 12
Section 2.07 Place of Advance............................................................... 13
Section 2.08 Bankers' Acceptances........................................................... 13
ARTICLE THREE
TERMINATION AND REDUCTION OF CREDIT, REPAYMENT AND MATURITY
Section 3.01 Mandatory Repayment............................................................ 15
Section 3.02 Voluntary Prepayment and Cancellation.......................................... 15
Section 3.03 Time and Place of Payment by Borrower.......................................... 15
Section 3.04 Payments to be Made on Banking Days............................................ 16
Section 3.05 Manner of Payment; No Set-Off.................................................. 16
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ARTICLE FOUR
INTEREST RATES, FEES AND CHARGES
Section 4.01 Interest Rate - Prime Rate Borrowings.......................................... 17
Section 4.02 Interest Rate - Base Rate Borrowings........................................... 17
Section 4.03 Interest Rate - LIBOR Borrowings............................................... 17
Section 4.04 Overdue Interest............................................................... 17
Section 4.05 General Interest Provisions.................................................... 17
Section 4.06 LIBOR Borrowings............................................................... 18
Section 4.07 Selection of Interest Periods.................................................. 18
Section 4.08 Bankers' Acceptance Fee........................................................ 18
Section 4.09 Commitment Fee................................................................. 19
Section 4.10 Expenses and Legal Fees........................................................ 19
ARTICLE FIVE
CONDITIONS PRECEDENT
Section 5.01 Conditions to the Initial Advance.............................................. 19
Section 5.02 Conditions Precedent to All Drawdowns.......................................... 20
Section 5.03 Discretion of Lender........................................................... 21
Section 5.04 Conditions Solely for the Lender's Benefit..................................... 21
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES
Section 6.01 Representations and Warranties................................................. 21
Section 6.02 Survival of Representations and Warranties..................................... 23
ARTICLE SEVEN
COVENANTS OF THE BORROWER
Section 7.01 Affirmative Covenants.......................................................... 23
Section 7.02 Negative Covenants............................................................. 25
ARTICLE EIGHT
DEFAULT
Section 8.01 Events of Default.............................................................. 25
Section 8.02 Remedies....................................................................... 27
Section 8.03 Remedies Cumulative............................................................ 27
Section 8.04 Set-Off........................................................................ 28
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ARTICLE NINE
CHANGE IN CIRCUMSTANCES AND INDEMNITIES
Section 9.01 Increased Costs................................................................ 28
Section 9.02 Losses......................................................................... 29
Section 9.03 Currency Indemnity............................................................. 29
Section 9.04 Environmental Indemnity........................................................ 30
Section 9.05 Lack of LIBOR Rate............................................................. 31
Section 9.06 Unlawful Borrowings............................................................ 32
ARTICLE TEN
ASSIGNMENT AND PARTICIPATION
Section 10.01 Benefit of Agreement........................................................... 33
Section 10.02 Assignment by Borrower......................................................... 33
Section 10.03 Assignment by Lender........................................................... 33
Section 10.04 Participation.................................................................. 33
Section 10.05 Limitation on Assignment and Participation..................................... 34
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 Rights and Waivers............................................................. 35
Section 11.02 Non-Merger..................................................................... 35
Section 11.03 Debiting of Account............................................................ 35
Section 11.04 Notices........................................................................ 35
Section 11.05 Statements and Reports......................................................... 35
Section 11.06 Severability................................................................... 35
Section 11.07 Governing Law.................................................................. 35
Section 11.08 Time of Essence................................................................ 35
Section 11.09 Further Assurances............................................................. 36
Section 11.10 Entire Agreement............................................................... 36
Section 11.11 Conflict....................................................................... 36
Section 11.12 No Third Party Beneficiaries................................................... 36
Section 11.13 Counterparts................................................................... 36
Section 11.14 Relationship of Parties........................................................ 36
EXECUTION
SCHEDULES
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THIS CREDIT AGREEMENT dated as of the 27th day of October,
1997.
B E T W E E N:
1250828 ONTARIO INC., a corporation incorporated
pursuant to the laws of the Province of Ontario
(hereinafter called the "Borrower")
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CANADIAN IMPERIAL BANK OF COMMERCE, a bank chartered
under the laws of Canada
(hereinafter called the "Lender")
WHEREAS the Guarantor (as hereinafter defined) owns all of the
issued and outstanding shares of the Borrower;
AND WHEREAS the Borrower has requested that the Lender enter
into this Agreement with the Borrower to provide the Borrower with a bridge
credit in the maximum principal amount of Cdn. $135,000,000 which will be used
in accordance with Section 2.01 hereof;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration
of the covenants and agreements contained herein and for other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE ONE
INTERPRETATION
SECTION 1.01 DEFINITIONS: In this Agreement, unless the context otherwise
requires, the following terms shall have the meaning set out below:
"ACCOMMODATION" means Prime Rate Borrowings, Base Rate Borrowings,
Bankers' Acceptances or LIBOR Borrowings and refers to any one or more
of such types of Accommodation where the context requires;
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"ADVANCE" means any amount advanced by the Lender to the Borrower under
the Credit and includes a Prime Rate Borrowing, a Base Rate Borrowing,
a LIBOR Borrowing, or the face amount of any Bankers' Acceptance;
"AFFILIATE" means with respect to any person, any person which,
directly or indirectly, controls or is controlled by or is under common
control with such person and for the purposes of this definition,
"control" (including with correlative meanings the terms "controlled
by" and "under common control with") means the power to direct or cause
the direction of the management and policies of any person, whether
through the ownership of shares or equity or by contract or otherwise;
"AGREEMENT" means this Agreement and all schedules attached hereto and
includes all written amendments, modifications, supplements and
replacements hereto and thereto from time to time;
"AMALGAMATION" means an amalgamation of the Borrower and Synergistics;
"ANTITRUST LEGISLATION" means the Hart-Scott-Rodino Antitrust
Improvements Act (United States) and the Competition Act (Canada);
"APPLICABLE MARGIN" means as of any date, a percentage per annum
determined by reference to the Public Debt Rating of the Guarantor in
effect on such date as set forth below:
PUBLIC DEBT RATING APPLICABLE MARGIN
S&P/MOODY'S/ FOR BANKERS' ACCEPTANCES
DUFF & PHELPS AND LIBOR BORROWINGS
------------------- -------------------------
A-/A3/A-or above 0.30%
BBB+/Baa1/BBB+ 0.35%
BBB/Baa2/BBB 0.45%
BBB-/Baa3/BBB- 0.5125%
BB+/Bal/BB+ 0.875%
"APPLICABLE PERCENTAGE" means as of any date, a percentage per annum
determined by reference to the Public Debt Rating of the Guarantor in
effect on such date as set forth below:
PUBLIC DEBT RATING
S&P/MOODY'S/DUFF & PHELPS COMMITMENT FEE
------------------------- ----------------
A-/A3/A-or above 0.10%
BBB+/Baa1/BBB+ 0.125%
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BBB/Baa2/BBB 0.15%
BBB-/Baa3/BBB- 0.225%
BB+/Bal/BB+ 0.375%
"BA DISCOUNT RATE" means, with respect to any Bankers' Acceptance, the
annual rate of interest determined by the Lender at or about 10:00 a.m.
on the applicable Borrowing Date as being equivalent to the rate that
appears on the Reuters Screen CDOR page at or about 10:00 a.m. on such
Borrowing Date as the discount rate applicable to bankers' acceptances
quoted by the Lender on such date, based upon a year of 365 days and
having a comparable face value and an identical maturity date to the
face value and maturity date of such Bankers' Acceptance;
"BANKERS' ACCEPTANCE FEE" means the fee payable on the amount of each
Bankers' Acceptance calculated and payable in the manner provided for
in Section 4.08;
"BANKERS' ACCEPTANCES" means bills of exchange denominated in Canadian
Dollars drawn by the Borrower and accepted by the Lender as permitted
pursuant to the Credit;
"BANKING DAY" means a day other than Saturday or Sunday, on which the
offices of the Lender are open for commercial banking business in the
Municipality of Metropolitan Toronto, Ontario and, in respect of a
LIBOR Borrowing or Base Rate Borrowing, a day on which the offices of
the Lender are also open for commercial banking business in London,
England or New York, New York, respectively;
"BASE RATE" means the greater of (i) the variable annual rate of
interest which is declared by the Lender from time to time as being its
base rate for US Dollar commercial loans made in Canada based on a year
of 365 days and (ii) the Federal Funds Effective Rate plus one half of
one percent (1/2%) per annum, any change in such rate to be effective
automatically on the date such change is established by the Lender
without the necessity of any notice being given to the Borrower. If for
any reason the Lender shall have determined (which determination shall
be conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including without
limitation, the inability or failure of the Lender to obtain sufficient
bids or publications in accordance with the terms hereof, the rate
announced by the Lender in Canada as its "Base Rate" shall be the Base
Rate until circumstances giving rise to such inability no longer exist;
"BASE RATE BORROWING" means an advance to the Borrower in U.S. Dollars
on which interest is calculated with reference to the Base Rate;
"BORROWER" means 1250828 Ontario Inc., and subsequent to the
Amalgamation, the entity resulting therefrom;
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"BORROWER'S ACCOUNT" means the operating accounts of the Borrower with
the Lender at the Branch maintained for the sole purpose of making
payments pursuant to this Agreement;
"BORROWER'S COUNSEL" means Fasken Campbell Godfrey, Toronto or such
other firm or firms as the Borrower may designate;
"BORROWING" means a Drawdown or a Rollover (as the context requires);
"BORROWING DAY" means a Drawdown Day or a Rollover Day (as the context
requires);
"BORROWING NOTICE" means a Drawdown Notice or a Rollover Notice (as the
context requires);
"BRANCH" means the branch of the Lender located at Commerce Court West,
7th Floor, Toronto, Ontario M5L 1A2, or such other branch in the City
of Toronto as the Lender may designate in writing and which is
reasonably satisfactory to the Borrower;
"CANADIAN DOLLARS", "CDN. DOLLARS", "DOLLARS", "$", and "CDN. $" mean
lawful currency of Canada;
"CHANGE IN CONTROL" means, (i) with respect to the Borrower, any
change, direct or indirect, in the ownership or control of the issued
and outstanding voting equity of the Borrower such that the Guarantor
does not legally and beneficially own all of the outstanding voting
equity of the Borrower on a fully diluted basis; or (ii) with respect
to Synergistics, any change, direct or indirect, after the Initial
Drawdown Date, but before the Amalgamation takes place, in the
ownership or control of the issued and outstanding voting equity of
Synergistics such that the Borrower does not legally and beneficially
own at least 66 2/3% of the outstanding voting equity of Synergistics
on a fully diluted basis;
"CLOSING DATE" means October 27, 1997;
"COUNSEL" means Smith Lyons, Toronto, or such other firm or firms as
the Lender may designate;
"CREDIT" means the facility established by the Lender in favour of the
Borrower as set forth in Section 2.01;
"DEBT", with respect to any Person means, at the date of determination,
the aggregate, without duplication, of all indebtedness, obligations
and liabilities of such Person which, in accordance with GAAP, would be
included in short-term bank debt, the current portion of long-term debt
or long-term debt as shown in the liabilities section of the balance
sheet of such Person;
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"DEFAULT" means an event or condition the occurrence of which is an
Event of Default or would, with the lapse of time or the giving of
notice, or both, become an Event of Default;
"DOCUMENTS" means this Agreement, the Guarantee and all certificates
and other documents delivered or to be delivered to the Lender pursuant
hereto or thereto and, when used in relation to any Person, the term
"Documents" shall mean and refer to those Documents executed and
delivered by such Person;
"DRAWDOWN" means the availment by the Borrower of the Credit by way of
a fresh Advance in a form permitted by Section 2.02 and, for certainty,
excludes any Rollover;
"DRAWDOWN DAY" means a Banking Day on which a Drawdown pursuant to the
Credit is permitted to be obtained by the Borrower from the Lender;
"DRAWDOWN NOTICE" means a notice in the form of Schedule A delivered
pursuant to Section 2.06;
"DUFF & PHELPS" means Duff & Phelps, Inc., and any successor of it;
"ENVIRONMENTAL ACTION" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of non-compliance or
violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement arising under any
Environmental Law or Environmental Permit or relating to Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment, including, without limitation, (i) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (ii) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief;
"ENVIRONMENTAL LAW" means any and all applicable federal, provincial,
state, municipal, local or foreign laws, statutes, rules, codes,
regulations, orders, judgments, decrees, ordinances, official
directives, authorizations or judicial or agency interpretation, policy
or guidance, relating to the environment or Hazardous Materials;
"ENVIRONMENTAL PERMIT" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law;
"EVENT OF DEFAULT" means an event of default as defined in Section 8.01
hereof;
"EXCHANGE EQUIVALENT" means, in respect of any amount (the "original
amount") expressed in Canadian Dollars or U.S. Dollars, as the case may
be, (the "original currency"), the amount expressed in U.S. Dollars or
Canadian Dollars, as the case may be, (the "new
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currency"), which the Lender would be required to pay in Toronto on the
date specified (or, if no date is specified, on the date on which such
amount is being determined), in order to purchase the original amount
of the original currency in the new currency, in accordance with the
Lender's usual foreign exchange practice;
"FEDERAL FUNDS EFFECTIVE RATE" means for any period, a fluctuating
interest rate per annum equal, for each day during such period, to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by Federal Funds
brokers as published for such day (or, if such day is not a New York
banking day, for the immediately preceding New York banking day) by the
Federal Reserve Bank of New York or, for any New York banking day on
which such rate is not so published for such day by the Federal Reserve
Bank of New York, the average of the quotations for such day for such
transactions received by the Lender from three Federal Funds brokers of
recognized standing selected in good faith by the Lender;
"GAAP" means generally accepted accounting principles in the United
States consistent with those applied in the preparation of the
financial statements of the Guarantor dated as of December 31, 1996;
"GOVERNMENTAL AUTHORITY" means any nation, federal government,
province, state, municipality or other political subdivision of any of
the foregoing, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled
(through stock or capital ownership or otherwise) by any of the
foregoing;
"GUARANTEE" means the guarantee of the Guarantor in the form attached
hereto as Exhibit 1;
"GUARANTOR" means The Geon Company, a corporation incorporated under
the laws of the State of Delaware;
"GUARANTOR'S COUNSEL" means an in-house counsel of the Guarantor;
"HAZARDOUS MATERIAL" means petroleum and petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials, or substances designated, classified or regulated as being
"hazardous" or "toxic", or words of similar import, under any
applicable Environmental Law;
"INDEBTEDNESS" means indebtedness arising pursuant to this Agreement
whether present or future, direct or indirect, matured or not, absolute
or contingent;
"INTEREST PAYMENT DATE" means the last day of an Interest Period and
also, in the case of an
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Interest Period which is longer than three (3) months, the last Banking
Day of each three (3) month period during such Interest Period;
"INTEREST PERIOD" means, in relation to a LIBOR Borrowing, the period
selected by the Borrower in accordance with Section 4.07 for computing
interest on such LIBOR Borrowing;
"LIBOR BORROWING" means an Advance on which interest is calculated by
reference to the LIBOR Rate;
"LIBOR RATE" means, in relation to a LIBOR Borrowing, the rate of
interest per annum (expressed on the basis of a year of three hundred
and sixty (360) days) determined by the Lender on the second Banking
Day prior to the commencement of the Interest Period during which such
LIBOR Borrowing is to be outstanding, at which deposits in U.S. Dollars
in amounts comparable to the amount of such LIBOR Borrowing, for value
on the first day of such Interest Period and for a term equal to the
requested Interest Period, are offered to the Lender in accordance with
its normal practice in the London inter-bank market at or about 11:00
a.m. (London time) on such second day;
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, condition (financial or otherwise), operations, performance
or properties of the Guarantor or the Guarantor and its Subsidiaries
taken as a whole;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business, condition (financial or otherwise), operations, performance
or properties of the Guarantor or the Guarantor and its Subsidiaries
taken as a whole, (ii) the rights and remedies of the Lender under this
Agreement or the Guarantee or (iii) the ability of the Guarantor to
perform its obligations under the Guarantee;
"MATURITY DATE" means the date which is eight (8) months after the date
of the initial Drawdown under the Credit;
"MOODY'S" means Moody's Investors Service, Inc., and any successor of
it;
"OFFERING CIRCULAR" means the offer to purchase and circular dated
October 8, 1997 prepared by the Borrower in respect of its offer to
purchase the Synergistics Shares, as amended, modified, supplemented or
restated from time to time;
"PERSON" or "PERSON" includes an individual, a partnership, a
corporation, a trust, an unincorporated organization, a government or
any department or agency thereof or any other entity whatsoever and the
heirs, executors, administrators or other legal representatives of an
individual;
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"PRIME RATE" means the annual rate of interest established by the
Lender from time to time as the interest rate it will charge for demand
loans in Canadian Dollars to its customers in Canada and which it
designates as its prime rate, based upon a year of 365 days, any change
in such rate to be effective automatically on the date such change is
established by the Lender, without the necessity of any notice being
given to the Borrower;
"PRIME RATE BORROWING" means an Advance to the Borrower on which
interest is calculated by reference to the Prime Rate;
"PUBLIC DEBT RATING" means, as of any date, the rating most recently
announced by each of S&P, Moody's or Duff & Phelps, as the case may be,
for any class of long-term senior unsecured debt issued by the
Guarantor. For purposes of the foregoing, (i) if only one of S&P,
Moody's and Duff & Phelps shall have in effect a Public Debt Rating,
the Applicable Margin and the Applicable Percentage shall be determined
by reference to the available rating or, if only two ratings are then
in effect, the lower rating; (ii) if none of S&P, Moody's or Duff &
Phelps shall have in effect a Public Debt Rating, the Applicable Margin
and the Applicable Percentage will be set in accordance with the
provisions provided for in the definition of "Public Debt Rating" in
the U.S. Credit Agreement; (iii) if the ratings established by S&P,
Moody's and Duff & Phelps shall fall within different levels, the
Applicable Margin and the Applicable Percentage shall be established by
the rating remaining after disregarding the highest and the lowest of
the three available ratings; (iv) if any ratings established by S&P,
Moody's or Duff & Phelps shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (v) if S&P,
Moody's or Duff & Phelps shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P,
Moody's or Duff & Phelps, as the case may be, shall refer to the then
equivalent rating by S&P, Moody's or Duff & Phelps, as the case may be;
"ROLLOVER" has the meaning given in Section 2.06 hereof;
"ROLLOVER DAY" means a Banking Day on which a Rollover pursuant to the
Credit is permitted to be obtained by the Borrower from the Lender;
"ROLLOVER NOTICE" means a notice in the form of Schedule B delivered
pursuant to Section 2.06;
"S&P" means Standard & Poor's Rating Group, and any successor of it;
"SECOND STEP TRANSACTION" means an amalgamation or another transaction
or series of transactions, including, without limitation, an
amalgamation, continuance, arrangement, consolidation, reclassification
or other transaction involving, without limitation, the Borrower and
Synergistics designed or intended to enable the Borrower to acquire all
of the issued share capital of Synergistics;
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"SUBSIDIARY" of any person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the issued and outstanding capital stock or
the equivalent ownership or controlling interest, in either case having
ordinary voting power to elect a majority of the board of directors,
managers or trustees thereof (irrespective of whether at the time
capital stock (or other evidence of ownership) of any other class or
classes of such entity shall or might have the voting power upon the
occurrence of any contingency) or (b) the beneficial interest in such
trust or estate, is at the time owned or controlled, directly or
indirectly, by such person, by such person and one or more of its other
Subsidiaries or by one or more of such person's other Subsidiaries;
"SYNERGISTICS" means, Synergistics Industries Limited Les Industries
Synergistics Limitee, a corporation amalgamated pursuant to the laws of
Canada, and any entity resulting from a Second Step Transaction;
"SYNERGISTICS SHARES" means common shares and Class A non-voting shares
of Synergistics;
"TAXES" means, with respect to any Person, for any particular period,
all taxes, rates, levies, imposts, assessments, government fees, dues,
stamp taxes, duties, ad valorem taxes or levies charges to tax, fees,
deductions, withholdings and similar impositions paid or payable,
levied, collected, withheld or assessed by any Governmental Authority;
"UNUTILIZED PORTION" means, with respect to the Credit, at the date of
determination thereof, the maximum principal amount of the Credit
available at such date, less the Utilized Portion of such Credit at
such date;
"UTILIZED PORTION" means, in respect of the Credit, at the date of
determination, the aggregate of: (i) all Advances outstanding under the
Credit in Canadian Dollars at such date and (ii) the Exchange
Equivalent in Canadian Dollars of all Advances outstanding under the
Credit in U.S. Dollars as of such date;
"U.S. CREDIT AGREEMENT" means the credit agreement dated as of August
16, 1994, among the Guarantor, Citibank, N.A. as administrative agent,
Nationsbank of North Carolina, N.A. as co-agent, and the other
institutions noted therein. For greater certainty, the term "U.S.
Credit Agreement" as used in this Agreement shall include any
amendments, modifications, supplements, waivers or restatements to such
agreement only until such date as CIBC Inc. remains a lender to the
Guarantor pursuant to such agreement; and
"U.S. DOLLARS" or "U.S.$" means lawful currency of the United States of
America.
SECTION 1.02 CURRENCY: Unless otherwise expressly stated, all monetary amounts
set out herein refer to the lawful money of Canada.
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SECTION 1.03 WORDS AND PHRASES: Where the context so requires, words importing
the singular include the plural, and vice versa, and words importing gender
include the masculine, feminine and neuter genders.
SECTION 1.04 HEADINGS AND TABLE OF CONTENTS: The table of contents and the
headings of all articles, sections and paragraphs herein are inserted for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
SECTION 1.05 ACCOUNTING TERMS: All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP. Where the character
or amount of any asset or liability or item of revenue or expense is required to
be determined, or any consolidation or other accounting computation is required
to be made for the purpose of this Agreement, such determination or calculation
shall, to the extent applicable and except as otherwise specified herein or
therein or as otherwise agreed in writing by the parties, be made in accordance
with GAAP.
SECTION 1.06 SCHEDULES: The following are the schedules annexed hereto which
form an integral part of this Agreement:
Schedule A Drawdown Notice
Schedule B Rollover Notice
SECTION 1.07 COMPUTATION OF TIME PERIODS: The computation of any time period
referred to herein which is not a defined term shall exclude the day of the
occurrence of the event to which the period relates and shall include the last
day of such period. Unless otherwise specifically provided herein in the event
that any time period referred to herein ends on a day which is not a Banking
Day, such time period shall be deemed to end on the next following Banking Day.
SECTION 1.08 EXTENDED MEANING: A reference to any one or more of the parties to
this Agreement shall, to the extent the context so admits, include reference to
the respective successors and permitted assigns of such party, as the case may
be.
SECTION 1.09 STATUTORY REFERENCES: References herein to any statute or any
provision thereof includes such statute or provision thereof as amended,
revised, re-enacted and/or consolidated from time to time and any successor
statute thereto or other legislation in PARI MATERIA therewith.
SECTION 1.10 CERTIFICATES AND OPINIONS, ETC.: Whenever the delivery of a
certificate or opinion is a condition precedent to the taking of any action by
the Lender under this Agreement, the truth and accuracy of the facts and
opinions stated in such certificate or opinion shall in each case be conditions
precedent to the right of the Borrower to have such action taken. Whenever any
certificate is to be delivered by the Borrower, such certificate shall be signed
on behalf of the Borrower by a senior officer of the Borrower.
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SECTION 1.11 KNOWLEDGE OF THE BORROWER: All provisions contained herein
requiring the Borrower to make a determination or assessment of any event or
circumstance or other matter to the best of its knowledge shall be construed to
represent the actual knowledge of the President, Assistant Treasurer or
Assistant Secretary of the Borrower, after such individuals have made all
inquiries and investigations as may be reasonably necessary in the circumstances
before making any such determination or assessment.
ARTICLE TWO
THE CREDIT
SECTION 2.01 THE CREDIT: Subject to the terms and conditions hereof and relying
on the representations and warranties contained in Article Six hereof, the
Lender shall make available to the Borrower a non-revolving credit in the
maximum principal amount of One Hundred and Thirty-Five Million Dollars
($135,000,000) to finance the acquisition by the Borrower of the Synergistics
Shares and the interest, fees and transaction costs relating to such acquisition
or this Agreement.
SECTION 2.02 DRAWDOWN OPTIONS: On the terms and subject to the conditions hereof
on and after the Closing Date the Borrower may from time to time obtain
Accommodation under the Credit by way of:
(i) Prime Rate Borrowings;
(ii) Base Rate Borrowings;
(iii) Bankers' Acceptances; or
(iv) LIBOR Borrowings.
SECTION 2.03 NON-REVOLVING NATURE OF THE CREDIT: The Credit shall be
non-revolving, and the Borrower shall not be entitled to any Drawdown thereunder
with respect to any Advance that has been repaid or prepaid by the Borrower
pursuant to Sections 3.01 or 3.02 hereof.
SECTION 2.04 EVIDENCE OF INDEBTEDNESS: The Indebtedness outstanding from time to
time of the Borrower to the Lender under the Credit shall be evidenced by the
accounts kept by the Lender. The accounts kept by the Lender shall, absent
manifest error, constitute prima facie evidence of the Indebtedness of the
Borrower to the Lender hereunder, the date any Advance was made or deemed to be
made to the Borrower, the amounts from time to time which may be prepaid by the
Borrower on account of such Indebtedness, the amount of such Indebtedness repaid
by the Borrower and the dates of such prepayments and repayment, provided that
the failure of the Lender to record any such amount or date shall not affect the
obligation of the Borrower to pay amounts due hereunder in accordance with this
Agreement.
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SECTION 2.05 DRAWDOWN NOTICE:
(a) If the Borrower wishes to obtain a Drawdown by way of Prime
Rate Borrowings or Base Rate Borrowings it shall deliver to
the Lender a Drawdown Notice not later than 10:00 a.m.
(Toronto time) on the day on which the Borrower requests such
Drawdown to be made, specifying, among other things, the
amount and type of Drawdown requested by the Borrower and the
Drawdown Day. If the Borrower wishes to obtain a Drawdown by
way of LIBOR Borrowing it shall deliver to the Lender a
Drawdown Notice not later than 10:00 a.m. (Toronto time) on
the second Banking Day prior to the day on which the Borrower
requests such Drawdown to be made, specifying, among other
things, the amount and type of Accommodation requested by the
Borrower and the Drawdown Day. Any Drawdown Notice given by
the Borrower shall be irrevocable, and the Borrower shall be
obligated to borrow the stated amount on the stated date in
accordance with the Drawdown Notice.
(b) Unless the Borrower delivers a Drawdown Notice in respect
thereof pursuant to subsection (a), the Borrower shall be
deemed to have given the Lender (i) a proper Drawdown Notice
requesting a Prime Rate Borrowing to fund the payment of each
amount denominated in Canadian Dollars which is due and
payable hereunder prior to the Maturity Date and (ii) a proper
Drawdown Notice requesting a Base Rate Borrowing to fund the
payment of each amount denominated in U.S. Dollars which is
due and payable hereunder prior to the Maturity Date.
SECTION 2.06 ROLLOVERS: The Borrower may at any time deliver a Rollover Notice
to the Lender requesting one or more Accommodations (a "Rollover"), the proceeds
of which will be used to rollover or convert one or more outstanding Advances,
provided that:
(a) the notice identifies the outstanding Accommodation to be
rolled over or converted (the "Refinanced Advance");
(b) the Rollover would otherwise be a permitted form of
Accommodation hereunder and the Borrower complies with each
notice provision hereof relative to the obtaining of
Accommodation in the form requested;
(c) the aggregate principal amount of the Rollover then requested
is not greater than the aggregate principal amount of the
Refinanced Advance;
(d) a Rollover of or conversion from a LIBOR Borrowing may only
occur on the last day of the relevant Interest Period for such
LIBOR Borrowing;
(e) the entire proceeds of the Rollover are used by the Lender to
rollover or
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convert in full the Refinanced Advance;
(f) each Rollover is made contemporaneously with the rollover or
conversion of the Refinanced Advance;
(g) a rollover of or conversion from Bankers' Acceptances may only
occur on the maturity of such Bankers' Acceptance; and
(h) in the case of any rollover of or conversion to Bankers'
Acceptances, the Borrower shall pay to the Lender the amount
by which the face amount of the Rollover exceeds the amount of
the proceeds of the Rollover.
In the event that the Borrower fails to give a proper Rollover Notice to the
Lender by 10:00 a.m. (Toronto time) on the second Banking Day prior to the last
day of any Interest Period of a LIBOR Borrowing, the Borrower shall be deemed to
have given a proper Rollover Notice at such time requesting that such LIBOR
Borrowing be rolled over on the last day of such Interest Period for a further
Interest Period of 30 days.
SECTION 2.07 PLACE OF ADVANCE: The proceeds of all Borrowings under the Credit
shall be credited directly to the Borrower's Account.
SECTION 2.08 BANKERS' ACCEPTANCES: The following provisions shall, in addition
to the other provisions contained herein, apply to all Bankers' Acceptances
accepted pursuant to the Credit:
(a) Subject as hereinafter provided, the Borrower shall, not later
than 10:00 a.m. (Toronto time) on the Borrowing Day (or on the
Banking Day preceding the Borrowing Day in the event the face
amount of the draft to be tendered by the Borrower for
acceptance is equal to or exceeds Cdn. $10,000,000), give the
Lender a Borrowing Notice stating its intention to tender
drafts for acceptance as, or a Rollover into, Bankers'
Acceptances.
(b) Each draft tendered by the Borrower for acceptance by the
Lender as a Bankers' Acceptance shall have a face amount in
integral multiples of Cdn. $100,000 subject to a minimum
aggregate face amount of Cdn. $1,000,000, shall be payable in
Canada, and shall have a term of not less than seven days, if
available, and not more than 180 days.
(c) Each draft to be accepted by the Lender shall be tendered on
the applicable Borrowing Day by the Borrower to the Lender at
the Branch and the amount of the Accommodation constituted
thereby shall be the face amount of such draft. No draft shall
be tendered by the Borrower for acceptance by the Lender if
such draft is for a term that would expire subsequent to the
Maturity Date or if such draft is in an amount which is
inconsistent with the aggregate amount of Accommodation
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available pursuant to the Credit.
(d) Upon tender of a draft by the Borrower for acceptance by the
Lender in accordance with the terms hereof, the Lender shall
accept such drafts and the Borrower shall pay to the Lender
the applicable fees for such acceptance, as required pursuant
to Section 4.08.
(e) unless the Borrower otherwise notifies the Lender, the Lender
shall purchase Bankers' Acceptances on their Borrowing Date at
the purchase price equal to the face amount of such Bankers'
Acceptances less an amount equal to the amount that yields to
the Bank (excluding the Bankers' Acceptance Fee) an interest
rate per annum equivalent to the BA Discount Rate.
(f) On the date of maturity of each Bankers' Acceptance, the
Borrower shall pay to the Lender the necessary Canadian
Dollars in respect of Bankers' Acceptance drawn in order to
discharge its obligations under such Bankers' Acceptance.
Prior to the Maturity Date, unless the Borrower prepays such
portion of the Credit, such payment shall be made from the
proceeds of a Rollover and (to the extent applicable) the
payment made by the Borrower pursuant to Section 2.06(h). If
the Borrower fails to give a Borrowing Notice in respect of
any such maturing Bankers' Acceptances, the Lender shall make
a Prime Rate Borrowing to the Borrower pursuant to the Credit,
for such purpose in the principal amount required to discharge
the Borrower's obligations pursuant to such Bankers'
Acceptance. The Lender shall promptly give notice to the
Borrower of any such Prime Rate Borrowings made by the Lender
to the Borrower, and the Borrower shall accept and use, and
hereby irrevocably directs the Lender to apply, the proceeds
of all such Prime Rate Borrowings made from time to time to
discharge the Borrower's obligations pursuant to such Bankers'
Acceptance.
(g) To facilitate the acceptance of Bankers' Acceptance pursuant
to this Agreement, the Borrower shall from time to time
provide the Lender a power of attorney pursuant to which the
Lender shall be entitled, upon receiving the Borrower's
instructions, to complete any Bankers' Acceptance pursuant to
this Agreement on behalf of the Borrower.
(h) If the Borrower fails to provide a Borrowing Notice in
accordance with Section 2.08(a) or fails to act in accordance
with a Borrowing Notice given, the Lender may in its
discretion, decline to stamp such additional Bankers'
Acceptances and any relevant maturing Bankers' Acceptances
shall be paid on their maturity by a Rollover by way of Prime
Rate Borrowings.
ARTICLE THREE
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TERMINATION AND REDUCTION OF CREDIT, REPAYMENT AND MATURITY
SECTION 3.01 MANDATORY REPAYMENT: Subject to the terms hereof, on the Maturity
Date all Indebtedness of the Borrower to the Lender shall be fully paid and
satisfied and the Credit shall be terminated.
SECTION 3.02 VOLUNTARY PREPAYMENT AND CANCELLATION:
(a) Upon giving to the Lender not less than two (2) Banking Days'
prior written notice specifying the amount and type or types
of Accommodation to be prepaid and the applicable voluntary
prepayment date the Borrower may prepay the principal amount
of the Credit in whole or in part, at any time and from time
to time.
(b) Any notice of voluntary prepayment provided by the Borrower
pursuant to Section 3.02(a) shall be irrevocable by the
Borrower and, if the Borrower defaults in making any such
voluntary prepayment thereafter, the Borrower shall promptly
arrange for payment to the Lender of all reasonable losses and
expenses incurred by the Lender in connection therewith, as
more fully provided in Section 9.02 hereof.
(c) Upon giving the Lender not less than two (2) Banking Days'
prior written notice specifying the amount of the Credit to be
cancelled and the effective date of the cancellation, the
Borrower may cancel any Unutilized Portion of the Credit in
whole or in part, at any time and from time to time.
(d) The amount of the Credit shall automatically reduce by the
amount of each voluntary prepayment when made and of each
voluntary cancellation on its effective date.
SECTION 3.03 TIME AND PLACE OF PAYMENT BY BORROWER: Each payment or prepayment
required or permitted to be made by the Borrower to the Lender hereunder
(whether on account of principal, interest, costs, or any other amount) shall be
made to the Lender at the Branch on the date for payment of the same in
immediately available funds. If any payment to be made by the Borrower hereunder
is released by the Borrower for wire transfer to the Borrower's Account after
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3:00 p.m. (Toronto time) on any day, such payment will be deemed to have been
made on the immediately following Banking Day for the purposes of the
calculation of interest, and interest will accrue due to such following Banking
Day.
SECTION 3.04 PAYMENTS TO BE MADE ON BANKING DAYS: Whenever any payment to be
made hereunder is due on a day that is not a Banking Day, such payment will be
due on the immediately following Banking Day and interest will accrue due to
such following Banking Day if payment is not made prior to that day.
SECTION 3.05 MANNER OF PAYMENT; NO SET-OFF: All payments to be made by the
Borrower pursuant to this Agreement including principal and interest will,
except as otherwise expressly provided herein, be payable in Canadian Dollars in
the case of Prime Rate Borrowings and Bankers' Acceptances and in U.S. Dollars
in the case of Base Rate Borrowings and LIBOR Borrowings; and all payments to be
made by the Borrower pursuant to this Agreement are to be made in freely
transferable, immediately available funds and without set-off, withholding or
deduction of any kind whatsoever, except to the extent required by applicable
law, and if any such set-off, withholding or deduction is so required and is
made, the Borrower will, as a separate and independent obligation to the Lender,
be obligated to pay to the Lender all such additional amounts as may be required
to fully indemnify and save harmless the Lender from such set-off, withholding
or deduction and as will result in the effective receipt by the Lender of all
amounts otherwise payable to it in accordance with the terms of this Agreement.
ARTICLE FOUR
INTEREST RATES, FEES AND CHARGES
SECTION 4.01 INTEREST RATE - PRIME RATE BORROWINGS: Subject to the provisions of
this Agreement, interest shall accrue on the aggregate principal amount of all
Prime Rate Borrowings outstanding from time to time at the variable rate of
interest per annum equal to the Prime Rate commencing on and including the day
on which an Advance is made and ending on, but excluding, the day on which it is
repaid or made subject to a Rollover to another form of Accommodation, such
interest to be calculated daily and payable monthly, in arrears, on the first
Banking Day of each and every month during which such Indebtedness remains
unpaid, based upon a calendar year of 365 days.
SECTION 4.02 INTEREST RATE - BASE RATE BORROWINGS: Subject to the provisions of
this Agreement, interest shall accrue on the aggregate principal amount of all
Base Rate Borrowings outstanding from time to time at the variable rate of
interest per annum equal to the Base Rate commencing on and including the day on
which an Advance is made and ending on, but excluding, the day on which it is
repaid or made subject to a Rollover to another form of Accommodation, such
interest to be calculated daily and payable monthly, in arrears, on the first
Banking Day of each and every month during which such Indebtedness remains
unpaid, based upon a year of 365 days.
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SECTION 4.03 INTEREST RATE - LIBOR BORROWINGS: Interest shall accrue on each
LIBOR Borrowing made pursuant to the Credit commencing on and including the
first day of the Interest Period relative to such LIBOR Borrowing and ending on,
but excluding, the last day of such Interest Period at the LIBOR Rate plus the
Applicable Margin, calculated on the basis of a year of 360 days and payable on
each Interest Payment Date.
SECTION 4.04 OVERDUE INTEREST: If interest is not paid on any principal amount
of the Indebtedness of the Borrower to the Lender hereunder, or any part
thereof, as and when interest is due and payable hereunder, unpaid interest
shall bear interest until paid, as well after as before demand, default,
maturity, and judgment, at the rates provided herein with respect to such
principal amount.
SECTION 4.05 GENERAL INTEREST PROVISIONS:
(a) Notwithstanding the provisions of this Article Four or any
other provision of this Agreement, in no event shall the
aggregate "interest" (as that term is defined in Section 347
of the Criminal Code (Canada)) exceed the effective annual
rate of interest on the "credit advanced" (as defined therein)
lawfully permitted under that section. The effective annual
rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles over the
term of the Credit, and in the event of a dispute, a
certificate of a Fellow of the Canadian Institute of Actuaries
appointed by the Lender will be conclusive for the purposes of
such determination.
(b) The rates of interest per annum payable on or in respect of
Prime Rate Borrowings and Base Rate Borrowings are expressed
on the basis of a 365 day year. The rates of interest per
annum payable on or in respect of Bankers' Acceptances are
expressed on the basis of a 365 day year. The rates of
interest per annum payable on or in respect of LIBOR
Borrowings are expressed on the basis of a 360 day year. The
yearly rate of interest to which the rate of interest per
annum payable on or in respect of Prime Rate Borrowings, Base
Rate Borrowings or Bankers' Acceptances is equivalent is such
rate multiplied by a fraction the numerator of which is the
actual number of days in the relevant year and the denominator
of which is 365. The yearly rate of interest to which the rate
of interest per annum payable on or in respect of LIBOR
Borrowings is equivalent is such rate multiplied by a fraction
the numerator of which is the actual number of days in the
relevant year and the denominator of which is 360.
(c) A certificate of an authorized signing officer of the Lender
as to each amount and/or each rate of interest payable
hereunder from time to time shall be
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prima facie evidence of such amount and of such rate.
(d) For greater certainty, whenever any amount is payable under
this Agreement by the Borrower as interest or as a fee which
requires the calculation of an amount using a percentage per
annum, each party to this Agreement acknowledges and agrees
that such amount shall be calculated as of the date payment is
due without application of the so-called "deemed reinvestment
principle" or the "effective yield method".
SECTION 4.06 LIBOR BORROWINGS: Upon request by the Borrower by telephone at or
prior to 10:00 a.m. (Toronto time) on the second Banking Day before the
commencement of any Interest Period for a LIBOR Borrowing, the Lender shall
inform the Borrower of the prevailing LIBOR Rate for 30, 60, 90 or 180 days, as
requested by the Borrower, subject to the availability of any such Interest
Period to the Lender. If the Borrower wishes to obtain a LIBOR Borrowing, the
Borrower shall then confirm to the Lender the duration of the Interest Period
for the requested LIBOR Borrowing, subject to Section 4.07.
SECTION 4.07 SELECTION OF INTEREST PERIODS: The right of the Borrower to choose
the duration of each Interest Period shall be limited as follows:
(a) the Borrower may not select an Interest Period that ends after
the Maturity Date;
(b) the first Interest Period for a LIBOR Borrowing shall commence
on the Borrowing Day of such Advance and each subsequent
Interest Period relative thereto shall commence forthwith upon
the expiry of the immediately preceding Interest Period
relative thereto;
(c) if any Interest Period would end on a day which is not a
Banking Day, such Interest Period shall be extended to the
next succeeding Banking Day unless such next succeeding
Banking Day falls in the following month in which event such
Interest Period shall end on the immediately preceding Banking
Day; and
(d) if any Interest Period is extended or shortened by the
application of clause (c) above, the following Interest Period
shall (without prejudice to the application of clause (c)
above) end on the day on which it would have ended if the
immediately preceding Interest Period had not been so extended
or shortened.
SECTION 4.08 BANKERS' ACCEPTANCE FEE: Upon presentation by the Borrower to the
Lender of any draft for acceptance by the Lender as a Bankers' Acceptance, the
Borrower shall pay to the Lender at its Branch the Bankers' Acceptance Fee
applicable upon the principal amount of each such Bankers' Acceptance for the
duration of its term on the basis of the actual number of days from the date of
acceptance by the Lender up to and including the maturity date of the Bankers'
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Acceptance, calculated on the basis of a calendar year at a rate equal to the
Applicable Margin. Payment of such Bankers' Acceptance Fee may be received from
the proceeds of the issuance of such Bankers' Acceptance.
SECTION 4.09 COMMITMENT FEE: The Borrower shall pay to the Lender a commitment
fee calculated at a rate per annum equal to the Applicable Percentage in effect
from time to time on the Unutilized Portion of the Credit. The commitment fee
shall accrue from day to day commencing on the Closing Date and shall be payable
quarterly in arrears until the Credit has been terminated.
SECTION 4.10 EXPENSES AND LEGAL FEES: Whether or not any or all of the
transactions contemplated herein shall be consummated, the Borrower shall pay to
the Lender on demand, all reasonable legal fees and disbursements (on a
solicitor and own client basis) incurred by the Lender with respect to the
preparation of this Agreement and the Documents. The Borrower shall in addition
reimburse the Lender on demand for all reasonable fees, costs and out-of-pocket
expenses including, without limitation, legal fees and disbursements (on a
solicitor and own client basis) incurred by the Lender following the Closing
Date in connection with any amendment to this Agreement and the Documents
requested by the Borrower and, following the occurrence of an Event of Default,
the exercising or defending of any or all of the rights, remedies and powers of
the Lender hereunder or under any of the Documents or the realizing on any
assets or property of the Borrower or the taking of any proceedings for the
purpose of enforcing the remedies provided herein or permitted in connection
herewith.
ARTICLE FIVE
CONDITIONS PRECEDENT
SECTION 5.01 CONDITIONS TO THE INITIAL ADVANCE: The obligation of the Lender to
make available the initial Drawdown under the Credit (which initial Drawdown
shall not, without the consent of the Lender, be made available by the Lender
after March 31, 1998) is subject to and conditional upon the Lender having
received all of the following on or before the Closing Date:
(a) all Documents shall have been duly executed and delivered by
all parties thereto;
(b) the Borrower shall have established the Borrower's Account;
(c) the Lender shall be satisfied that, at the time of the Closing
Date, no Material Adverse Change has occurred;
(d) all consents, approvals, requests and waiting periods of
Governmental Authorities necessary to complete or applicable
to the transactions contemplated pursuant to this Agreement
and the Offering Circular which, if not obtained, waived,
dispensed with, complied with or expired would prohibit the
taking up of the Synergistics
24
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Shares, shall have expired or been obtained, waived or
dispensed with by the applicable Governmental Authority;
(e) the Lender shall have received all of the following, all in
form and substance satisfactory to the Lender:
(i) certified true copies of the constating documents of
the Borrower and the Guarantor and all amendments
thereto and restatements thereof;
(ii) certified copies of all corporate action taken by the
Borrower to authorize the borrowing of money, the
execution and delivery of this Agreement, and the
completion of the transactions contemplated hereby,
and the performance of all other acts, matters and
things provided for herein, together with a
certificate of incumbency of the Borrower;
(iii) certified copies of all corporate action taken by the
Guarantor to authorize the execution and delivery of
the Guarantee and the performance of all other acts,
matters and things provided for therein, together
with a certificate of incumbency of the Guarantor;
(iv) the Guarantee;
(v) the opinion of Borrower's Counsel as to all legal
matters pertaining to the Borrower, this Agreement
and the takeover bid for the Synergistics Shares, in
the form of Exhibit 2;
(vi) the opinion of Guarantor's Counsel as to all legal
matters pertaining to the Guarantor and the
Guarantee, in the form of Exhibit 3.
In the event the initial Drawdown shall take place subsequent to December 31,
1997, a certificate in writing signed under corporate seal by a senior officer
of the Borrower dated the date of such initial Drawdown certifying that all
representations and warranties set forth in this Agreement are true as at the
date thereof, and that no Default then exists.
SECTION 5.02 CONDITIONS PRECEDENT TO ALL DRAWDOWNS: The obligation of the Lender
to make available any Drawdown hereunder after the Closing Date is subject to
and conditional upon each of the following terms and conditions being satisfied:
(a) at the time of the Drawdown no Event of Default shall have
occurred and shall be continuing;
(b) to the best of the Borrower's knowledge, at the time of the
Drawdown there are no injunctions or restraining orders,
whether interlocutory or temporary, interim or
25
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permanent, granted or in effect pursuant to Antitrust
Legislation prohibiting the Borrower from acquiring the
Synergistics Shares;
(c) the terms and conditions of this Agreement upon which the
Borrower may obtain a Drawdown set forth in Articles Two,
Three, Four, Eight and Nine have been complied with; and
(d) the Lender has received a Drawdown Notice.
SECTION 5.03 DISCRETION OF LENDER: Notwithstanding the nonfulfillment of any
condition referred to above, the Lender may make an Advance pursuant to the
Credit if the Lender, in its discretion, shall determine. The making of any
Advance by the Lender, either before or after the fulfillment of all applicable
conditions, will not constitute an approval, acceptance or waiver by the Lender
of any condition or Default.
SECTION 5.04 CONDITIONS SOLELY FOR THE LENDER'S BENEFIT: All conditions of the
obligation of the Lender to make any Advance available are imposed solely and
exclusively for the benefit of the Lender and no other Person will have standing
to require satisfaction of such conditions in accordance with their terms or be
entitled to assume that the Lender will refuse to make any Advance available in
the absence of strict compliance with any or all thereof and no other Person
will, under any circumstances, be deemed to be beneficiary of such conditions.
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 REPRESENTATIONS AND WARRANTIES: The Borrower makes and gives the
following representations and warranties to the Lender, upon each of which the
Lender has relied in entering into this Agreement:
(a) INCORPORATION AND CORPORATE POWER: The Borrower is a
corporation incorporated, organized and validly existing under
the laws of the Province of Ontario.
(b) DUE AUTHORIZATION AND NO CONFLICT: The Borrower has taken or
has caused to be taken all necessary corporate action to
authorize the execution, delivery and performance of this
Agreement and the borrowing of money hereunder, and no such
action requires the consent or approval of any Governmental
Authority or any other Person, nor is any such action in
contravention of or in conflict with any applicable law, rule
or regulation or any contractual restriction binding on or
affecting the Borrower, or, as applicable, the articles or
by-laws of the Borrower.
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(c) ENFORCEABILITY: This Agreement constitutes the legal, valid
and binding obligation of the Borrower enforceable against the
Borrower in accordance with the terms thereof, subject only to
bankruptcy, insolvency, reorganization, arrangement or other
statutes or judicial decisions affecting the enforcement of
creditors' rights in general and to general principles of
equity under which specific performance and injunctive relief
may be refused by a court in its discretion.
(d) NO LITIGATION: Apart from proceedings under the Antitrust
Legislation, to the best of the Borrower's knowledge, there
are no actions, suits, proceedings, inquiries or
investigations existing, pending or threatened against or
adversely affecting the Borrower in any court or before any
federal, provincial, municipal or governmental department,
commission, board, tribunal, bureau or agency, whether
Canadian or foreign, or before any arbitrator, which (i) could
be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of
this Agreement or the consummation of the transactions
contemplated hereby.
(e) NO INJUNCTION: To the best of the Borrower's knowledge, there
are no injunctions or restraining orders, whether
interlocutory or temporary, interim or permanent, granted or
in effect pursuant to Antitrust Legislation prohibiting the
Borrower from acquiring the Synergistics Shares.
(f) ADVERSE CHANGES: There has been no Material Adverse Change
since October 8, 1997.
(g) ENVIRONMENTAL COMPLIANCE: The operations and properties of the
Borrower comply in all material respects with all
Environmental Laws; all necessary Environmental Permits have
been obtained and are in effect for the operations and
properties of the Borrower; the Borrower is in compliance in
all material respects with all such Environmental Permits, and
no circumstances exist that could be reasonably likely to (i)
form the basis of an Environmental Action against the Borrower
or any of its properties that would have a Material Adverse
Effect or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability
under any Environmental Law that would have a Material Adverse
Effect.
(h) OWNERSHIP: All of the issued and outstanding equity of the
Borrower is legally and beneficially owned by the Guarantor.
All of the issued and outstanding shares of the Borrower have
been duly issued and are fully paid, free and clear of all
liens and encumbrances. There are no outstanding warrants,
options, or rights to purchase or otherwise acquire any equity
in the Borrower.
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SECTION 6.02 SURVIVAL OF REPRESENTATIONS AND WARRANTIES: All representations and
warranties of the Borrower as set forth herein shall survive the advance of
funds by the Lender.
ARTICLE SEVEN
COVENANTS OF THE BORROWER
SECTION 7.01 AFFIRMATIVE COVENANTS: The Borrower covenants and agrees with the
Lender that until there is no Indebtedness of the Borrower to the Lender
hereunder, the Credit has been terminated, and the Lender has no commitment or
obligation hereunder:
(a) USE OF FUNDS: The Borrower will use and employ the funds
received from the Lender pursuant to the Credit solely for the
purposes set forth in Section 2.01 hereof.
(b) BORROWER'S ACCOUNT: The Borrower shall establish and at all
times maintain current accounts with the Lender at the Branch.
(c) ACCESS AND INFORMATION: At any reasonable time and from time
to time, permit the Lender or any agents or representatives
thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of,
the Borrower, and to discuss the affairs, finances and
accounts of the Borrower with any of the officers or directors
of the Borrower.
(d) NOTICES: The Borrower shall promptly, after obtaining
knowledge of same, give notice to the Lender of:
(i) any Default;
(ii) the commencement of any proceeding of the type
described in Section 6.01(d);
(iii) a representation or warranty made or given herein
which is established to be false or incorrect in any
material respect.
(e) CORPORATE STATUS AND QUALIFICATION: The Borrower will preserve
and maintain its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the
Borrower and Synergistics may consummate any Second Step
Transaction and the Amalgamation; and provided further that
the Borrower shall not be required to preserve any right or
franchise if the Board of Directors of the Borrower shall
determine that the preservation thereof is no longer desirable
in the conduct of the
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business of the Borrower and that the loss thereof is not
disadvantageous in any material respect to the Borrower or the
Lender.
(f) PARI PASSU: The Borrower shall ensure that at all times the
claims of the Lender against it under this Agreement rank at
least pari passu with the claims of all of its other unsecured
creditors (other than claims preferred by applicable law).
(g) CONDUCT OF BUSINESS: The Borrower shall maintain and preserve
all of its properties that are used or useful in the conduct
of its business in good working order and condition, ordinary
wear and tear excepted if the failure to so maintain and
preserve such properties could be reasonably likely to have a
Material Adverse Effect.
(h) GOVERNMENTAL COMPLIANCE: The Borrower shall comply, in all
material respects, with all applicable laws, regulations,
orders, restrictions and regulations of any Governmental
Authority having jurisdiction if non-compliance could be
reasonably likely to have a Material Adverse Effect.
(i) TAXES: The Borrower will pay and discharge before the same
become delinquent, (i) all taxes, assessments and governmental
charges or levies imposed upon it or upon its property and
(ii) all lawful claims that, if unpaid, might by law become a
lien upon its property; provided however, that the Borrower
shall not be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any lien
resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(j) ENVIRONMENTAL COMPLIANCE: The Borrower will use and operate
all of its facilities and properties in material compliance
with all Environmental Laws and Environmental Permits if the
failure to do so could be reasonably likely to have a Material
Adverse Effect, keep all necessary permits, approvals,
certificates, licences and other authorizations relating to
environmental matters in effect and remain in material
compliance therewith if the failure to do so could be
reasonably likely have a Material Adverse Effect, and handle
all Hazardous Materials in material compliance with all
applicable Environmental Laws and Environmental Permits;
provided, however, that the Borrower shall not be required to
undertake any cleanup, removal, remedial or other action to
the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves
are being maintained with respect to such circumstances.
(k) TAKE-OVER BID DOCUMENTATION: The Borrower shall provide copies
of any amendments, modifications, supplements and restatements
of the Offering Circular and the lock-up agreement with the
common shareholders of Synergistics to the Lender for its
review.
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SECTION 7.02 NEGATIVE COVENANTS: The Borrower covenants and agrees with the
Lender that until there is no Indebtedness of the Borrower to the Lender
hereunder, the Credits have been terminated, and the Lender has no commitment or
obligation hereunder, the Borrower will not without the prior written consent of
the Lender:
(a) NO AMALGAMATION: otherwise than pursuant to any Second Step
Transaction or Amalgamation, enter into any transaction or
series of transactions (whether by way of amalgamation,
merger, winding-up, consolidation, reorganization, transfer,
sale, lease, or otherwise) whereby all or substantially all of
its undertaking, properties, rights, or assets would become
the property of any person or, in the case of amalgamation, of
the continuing corporation resulting therefrom, unless the
person receiving such assets or continuing therefrom is a
wholly-owned Subsidiary of the Guarantor;
(b) CHANGE IN CONTROL OF BORROWER: take or permit any action which
would result in a Change in Control of the Borrower; and
(c) CHANGE IN CONTROL OF SYNERGISTICS: subsequent to the purchase
of the Synergistic Shares, take or permit any action which
would result in a Change in Control of Synergistics.
ARTICLE EIGHT
DEFAULT
SECTION 8.01 EVENTS OF DEFAULT: Notwithstanding anything to the contrary in this
Agreement, the right of the Borrower to apply for further Advances shall, at the
option of the Lender, cease and the Indebtedness of the Borrower to the Lender
hereunder shall, at the option of the Lender, become immediately due and payable
to the Lender upon the occurrence of any of the following events (each such
event an "Event of Default"):
(a) FAILURE TO PAY PRINCIPAL OR INTEREST: If the Borrower fails to
punctually pay any Indebtedness within three (3) Banking Days
after the same becomes due and payable.
(b) FALSE REPRESENTATIONS: If any representation or warranty made
or given herein is false or incorrect in any material respect
at the time that it is made or given which is not remedied to
the Lender's sole satisfaction within three (3) Banking Days
after the Lender gives written notice to the Borrower that the
representation or warranty has proven to be false or incorrect
in any material respect.
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(c) DEFAULT IN COVENANTS: If the Borrower fails in the observance
or performance of any of the terms, covenants or agreements to
be performed or observed by it hereunder, and such default
shall have continued for a period of 30 days after written
notice thereof has been delivered to the Borrower by the
Lender.
(d) CROSS-DEFAULT: If there is in existence and continuing any
Event of Default under the U.S. Credit Agreement or if the
Borrower shall default in the payment of any principal or
interest aggregating Cdn. $25,000,000 or more under any
obligation to repay any Debt or interest thereon and such
default is continuing, or if the Borrower shall default in the
performance or observance of any other term, condition or
provision under which Debt is outstanding and such default is
continuing, and, as a consequence thereof the holder of such
Debt is permitted or entitled to accelerate the maturity of
Debt aggregating Cdn. $25,000,000 or more.
(e) VOLUNTARY PROCEEDINGS: If the Borrower shall cease, or
threaten to cease, to carry on business or shall make a
general assignment for the benefit of creditors; or any
proceeding or filing shall be instituted or made by the
Borrower seeking relief on its behalf as debtor, or to
adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding-up, reorganization, arrangement, adjustment or
composition of it or its debts, in each case, under any law
relating to bankruptcy, insolvency or relief of debtors
(including, without limitation, the Bankruptcy and Insolvency
Act (Canada) and the Companies' Creditors Arrangement Act
(Canada)), or seeking appointment of a receiver, trustee,
liquidator, custodian or other similar official for it or for
any part of its properties or assets; or if the Borrower shall
take any corporate action to authorize any of the actions set
forth in this subsection.
(f) INVOLUNTARY PROCEEDINGS: If any proceeding or filing shall be
instituted or made against the Borrower seeking to have an
order for relief entered against it as debtor, or to
adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding-up, reorganization, arrangement, adjustment or
composition of it or its debts, in each case, under any law
relating to bankruptcy, insolvency, reorganization or relief
of debtors (including, without limitation, the Bankruptcy and
Insolvency Act (Canada) and the Companies' Creditors
Arrangement Act (Canada)), or seeking appointment of a
receiver, trustee, custodian or other similar official for it
or for any substantial part of its properties or assets and
such proceeding or filing shall remain undismissed and
unstayed for a period of 30 days, or any of the actions sought
in such proceedings or filing (including, without limitation,
the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its properties or
assets) shall occur.
(g) APPOINTMENT OF RECEIVER: If a receiver, liquidator, trustee,
or other person or officer with like powers shall be appointed
with respect to, or an encumbrancers
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shall take possession of, a majority of the properties or
assets of the Borrower.
(h) GUARANTEE: If the Guarantor notifies the Lender that the
Guarantee is no longer enforceable against it.
(i) LITIGATION: Any judgment or order of a court of competent
jurisdiction shall be rendered or consented to against or by
the Borrower for the payment of money in excess of Cdn.
$25,000,000 net of insurance coverage.
(j) EXECUTIONS, DISTRESS: If any execution, extent or other
similar process of any court shall become enforceable against
the Borrower, or if a distress or any analogous process shall
be levied against any of the properties or assets of the
Borrower and the aggregate amount claimed pursuant to all such
executions, extents, other processes and distraints exceeds
$25,000,000.
(k) CHANGE IN CONTROL: If there shall be any Change in Control in
the Borrower after the date hereof or in Synergistics after
the initial Drawdown Date.
SECTION 8.02 REMEDIES: After default and acceleration pursuant to Section 8.01
hereof, the Lender may commence such legal action or proceedings against the
Borrower or its properties and assets as may be permitted hereunder or at law or
in equity all at such times and in such manner as the Lender in its sole
discretion may deem expedient and all without any additional notice,
presentment, demand, or any other similar proceeding, all of which are hereby
expressly waived.
SECTION 8.03 REMEDIES CUMULATIVE: It is expressly understood and agreed that the
rights and remedies of the Lender under this Agreement and the other Documents
are cumulative and are in addition to and not in substitution for any rights or
remedies provided by law and any single or partial exercise by the Lender of any
right or remedy for a default or breach of any term, covenant, condition or
agreement herein contained shall not be deemed to be a waiver of or to alter,
affect or prejudice any other right or remedy or other rights or remedies to
which the Lender may be lawfully entitled for the same default or breach, and
any waiver by the Lender of the strict observance, performance or compliance
with any term, covenant, condition or agreement herein contained, and any
indulgence granted by the Lender shall be deemed not to be a waiver of any
subsequent default.
SECTION 8.04 SET-OFF: Upon the occurrence of an Event of Default, in addition to
and not in limitation of any rights now or hereafter granted under applicable
law, the Lender may, to the extent permitted by law, without notice to the
Borrower at any time and from time to time: (i) combine, consolidate or merge
any or all of the deposits or other accounts of the Borrower with the Lender
(whether term, notice, demand or otherwise and whether matured or unmatured),
and the Indebtedness of the Borrower to the Lender hereunder, and (ii) set-off,
apply or transfer any or all sums standing to the credit of any such deposits or
accounts in or towards the satisfaction of any of the Indebtedness of the
Borrower to the Lender hereunder, and may do so notwithstanding that the
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balances on such accounts and the Indebtedness may not be expressed in the same
currency and the Lender is hereby authorized to effect any necessary conversions
at the rate of exchange equal to the Exchange Equivalent then in effect.
ARTICLE NINE
CHANGE IN CIRCUMSTANCES AND INDEMNITIES
SECTION 9.01 INCREASED COSTS:
(a) If, due to either (i) the introduction of or any change in or
any interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank
or other Governmental Authority (whether or not having the
force of law) which becomes effective after the date hereof,
there shall be any increase in the cost to the Lender of
agreeing to make or making, funding or maintaining any
Borrowing, then the Borrower shall from time to time, upon
demand by the Lender, pay to the Lender additional amounts
sufficient to compensate the Lender for such additional cost.
(b) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank
or other Governmental Authority (whether or not having the
force of law) which becomes effective after the date hereof,
there shall be any increase in the amount of capital required
or expected to be maintained by the Lender as a result of or
based upon the existence of the Lender's commitment to lend
hereunder and other commitments of this type, then upon demand
by the Lender, the Borrower shall pay to the Lender, from time
to time as specified by the Lender, additional amounts
sufficient to compensate the Lender in the light of such
circumstances, to the extent that the Lender reasonably
determines such increase in capital to be allocable to the
existence of the Lender's commitment to lend hereunder.
(c) The Lender shall give prompt notice to the Borrower if it
determines that it is entitled to claim compensation under
this Section 9.01. The Lender shall not be entitled to
compensation in respect of any period which is more than 90
days prior to the date the Lender so notifies the Borrower. A
certificate as the amount of such compensation setting forth
the basis thereof in reasonable detail and submitted to the
Borrower by the Lender shall be rebuttable evidence thereof.
SECTION 9.02 LOSSES: The Borrower shall, from time to time, fully indemnify and
hold the Lender harmless from and against any and all reasonable costs, losses
(excluding lost profit), expenses, damages or liabilities which the Lender may
sustain or incur as a result of, without
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duplication:
(a) the failure of the Borrower to utilize the Credit in the
manner specified in a Drawdown Notice (including if such
failure was caused by the failure of the Borrower to meet all
conditions precedent);
(b) the failure of the Borrower to pay any sum on its due date;
(c) any prepayment; or
(d) any Event of Default.
Without prejudice to the generality of the foregoing, the foregoing indemnity
shall extend to any loss, premium, penalty or expense which may be incurred by
the Lender in liquidating deposits from third parties acquired to make, maintain
or fund a Drawdown or any part thereof or any amount due or to become due under
this Agreement.
SECTION 9.03 CURRENCY INDEMNITY: If, for the purposes of obtaining judgment in
any court in any jurisdiction with respect to this Agreement, it becomes
necessary to convert into the currency of such jurisdiction (the "Judgment
Currency") any amount due under this Agreement in any currency other than the
Judgment Currency (the "Currency Due"), then conversion shall be made at the
rate of exchange prevailing on the Banking Day before the day on which judgment
is given. For this purpose "rate of exchange" means the rate at which the Lender
is able, on the relevant date, to purchase the Currency Due with the Judgment
Currency in accordance with its normal practice at its Main Branch in Toronto,
Ontario. In the event that there is a change in the rate of exchange prevailing
between the Banking Day before the day on which the judgment is given and the
date of payment of the amount due, the Borrower will, on the date of payment,
pay such additional amounts, if any, as may be necessary to ensure that the
amount paid on such date is the amount in the Judgment Currency which when
converted at the rate of exchange prevailing on the date of payment is the
amount then due under this Agreement in the Currency Due. If the amount of the
Currency Due which the Lender is so able to purchase exceeds the amount of the
Currency Due originally due to the Lender, the Lender shall promptly refund such
excess to the Borrower. If the amount of the Currency Due which the Lender is so
able to purchase is less than the amount of the Currency Due originally due to
the Lender, the Borrower shall indemnify and save the Lender harmless from and
against loss or damage arising as a result of such deficiency. This indemnity
shall constitute an obligation separate and independent from the other
obligations contained in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by the Lender from time to time and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum in respect of an
amount due under this Agreement or under any judgment or order.
SECTION 9.04 ENVIRONMENTAL INDEMNITY:
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(a) (i) The Borrower agrees to indemnify and hold harmless
the Lender and its Affiliates, and their officers,
directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by
reason of, or in connection with the preparation for
a defense of, any investigation, litigation or
proceeding arising out of, related to or in
connection with the actual or alleged presence of
Hazardous Materials on any property of the Borrower
or any Environmental Action relating in any way to
the Borrower, in each case whether or not such
investigation, litigation or proceeding is brought by
the Borrower, its directors, shareholders or
creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated
hereby are consummated, except to the extent such
claim, damage, loss, liability or expense resulted
from an Indemnified Party's gross negligence or
willful misconduct. The Borrower also agrees not to
assert any claim against the Lender or any of its
Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any
theory of liability, for special or indirect damages
arising out of or otherwise relating to this
Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds
of the Advances.
(ii) Each Indemnified Party shall, promptly after becoming
aware of any actual or threatened action or claim
against such Indemnified Party in respect of which
indemnification may be sought against the Borrower
pursuant to this Section 9.04(b), notify the Borrower
in writing of such action or claim. In case any such
action shall be brought against any Indemnified Party
and such Indemnified Party shall notify the Borrower
of the commencement thereof, the Borrower may
participate therein or assume the defense thereof and
after notice from the Borrower to such Indemnified
Party of an election so to assume the defense
thereof, such Indemnified Party shall cooperate
fully, completely and promptly in the defense
thereof, including without limitation, the settlement
of outstanding claims, and the Borrower will not be
liable to such Indemnified Party under this Section
9.04(b) for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with
the defense thereof other than reasonable
out-of-pocket costs of investigation incurred with
the consent of the Borrower, which consent shall not
be unreasonably withheld or delayed; provided,
however, that unless and until the Borrower so
assumes the defense of any such action, the Borrower
shall have the right to participate at its own
expense in the defense of any such action to which it
is a party. If the Borrower shall not have so assumed
the defense of any such action or if any Indemnified
Party shall have reasonably concluded that there may
be defenses
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available to it or them which are different from or additional
to those available to the Borrower (in which case the Borrower
shall not have the right to direct the defense of such action
on behalf of such Indemnified Party), legal or other expenses
incurred by such Indemnified Party shall be borne by the
Borrower; provided that the Borrower shall be liable only for
the expenses of a single legal counsel for all Indemnified
Parties in connection with any single action. Notwithstanding
the foregoing, the Borrower shall not be liable for any
settlement of any action or claim effected without its
consent.
(iii) The Borrower will not settle or compromise or consent to
the entry of any judgment in any pending or threatened claim,
action, suit or proceeding in respect of which indemnification
has been sought hereunder (whether or not an Indemnified Party
is a party to such claim, action, suit or proceeding) without
the prior written consent of the Lender unless such
settlement, compromise or consent includes an unconditional
release of the Lender and each Indemnified Party from all
liability arising from such claim, action, suit or proceeding.
(b) The indemnity in this Section 9.04 shall survive for
a period of five (5) years from the date of the
initial Drawdown. If written notice of a claim
pursuant to this Section 9.04 is given by the Lender
to the Borrower prior to the expiry of such period,
then the right of the Lender to pursue such claim
shall survive the expiry of such five (5) year
period.
SECTION 9.05 LACK OF LIBOR RATE:
(a) If at any time prior to the commencement of an
Interest Period with respect to a LIBOR Borrowing,
the Lender shall have determined in good faith (which
determination shall be conclusive) that:
(i) by reason of circumstances affecting the
London inter-bank market, adequate and fair
means do not exist for ascertaining the rate
of interest applicable to a LIBOR Borrowing
intended to be outstanding during such
Interest Period;
(ii) deposits in U.S. Dollars for the duration of
such Interest Period are not available to
the Lender in the London interbank market in
sufficient amounts in the ordinary course of
business; or
(iii) the rate at which deposits are offered to it
in the London inter-bank market does not
accurately reflect the cost to the Lender of
funding the LIBOR Borrowing for the proposed
Interest Period;
then, from and after the date of such determination, the
Borrower shall, subject to
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Section 9.05(b), not have the right to obtain a LIBOR
Borrowing.
(b) The Lender shall notify the Borrower within 10 Banking Days of
becoming aware that the circumstances referred to in Section
9.05(a) no longer exist. Upon receipt of such notice, the
Borrower shall have the right to receive a LIBOR Borrowing in
accordance with the provisions hereof.
SECTION 9.06 UNLAWFUL BORROWINGS: Notwithstanding anything herein contained, if
at any time while any Advance is outstanding, the Lender determines in good
faith and notifies the Borrower that, by reason of the introduction of or any
change in any law, regulation, treaty, official directive or guideline, or any
change in the interpretation or application thereof by any court or by any
governmental authority charged with the administration thereof (including the
Superintendent of Financial Institutions for Canada), it is unlawful for the
Lender to make, maintain or fund any Base Rate Borrowing or LIBOR Borrowing or
to give effect to any of their related obligations as contemplated hereby, the
Lender, by such notice, may declare that the Lender's obligations relating
thereto under this Agreement shall be terminated and thereupon, or at the end of
such period as the Lender shall have determined in its discretion, the Base Rate
Borrowing or LIBOR Borrowing shall be converted to a Prime Rate Borrowing in an
amount equal to the Exchange Equivalent in Canadian Dollars of such Base Rate
Borrowing or LIBOR Borrowing in effect at that time, and the Borrower shall pay
all unpaid interest accrued thereon to the date of conversion; provided,
however, that if the maximum amount of the Credit in Canadian Dollars, as
referred to in Section 2.01, would be exceeded as a result of such conversion,
any such excess amount shall be payable to the Lender on demand and interest
shall accrue thereon to the time of payment at the same rates as those
applicable to Prime Rate Borrowings under the Credit. If any such law,
regulation, treaty, official directive or guideline, or such change therein,
shall only affect a portion of the Lender's obligations under this Agreement
which portion is, in the opinion of the Lender, severable from the remainder of
this Agreement so that the remainder of this Agreement may continue in full
force and effect without otherwise affecting any of the obligations of the
Lender under this Agreement, the Lender shall only declare its obligations under
that portion so terminated.
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ARTICLE TEN
ASSIGNMENT AND PARTICIPATION
SECTION 10.01 BENEFIT OF AGREEMENT: This Agreement shall enure to the benefit of
and be binding on the parties hereto, their respective successors and any
permitted assignee or transferee of the parties' rights or obligations
hereunder.
SECTION 10.02 ASSIGNMENT BY BORROWER: This Agreement shall be binding upon and
enure to the benefit of the Borrower and its successors and permitted assigns,
provided that neither the rights nor obligations of the Borrower hereunder may
be assigned by it without the prior written consent of the Lender which may be
refused in the absolute discretion of Lender.
SECTION 10.03 ASSIGNMENT BY LENDER: From time to time the Lender may assign all
or any part of its rights to, and may have its obligations in respect of, not
less than Cdn. $5,000,000 of the Credit assumed by any Person upon securing the
consent of the Borrower, such consent not to be unreasonably withheld. No
assignee, however, shall be entitled to receive any greater amount payable under
or otherwise in respect of this Agreement than the Lender would have been
entitled to receive had such assignment not be made. An assignment shall become
effective when the Borrower has received from the assignee an undertaking
(addressed to the parties to this Agreement) to be bound by this Agreement in
its entirety and to perform the obligations assigned to it hereunder in form and
substance satisfactory to the Borrower, acting reasonably. Any assignee shall be
and be treated as if it were the Lender for all purposes of this Agreement,
shall be entitled to the benefit hereof, and shall be subject to the obligations
of the Lender to the same extent as if it were an original party in respect of
the rights or obligations assigned to it and the Lender shall be released and
discharged from its obligations hereunder. For the purposes of any such
assignment the Lender may upon securing the consent of the Borrower, such
consent not to be unreasonably withheld, disclose on a confidential basis to a
potential assignee such information about the Borrower as the Borrower may
permit and the Lender may see fit. The Borrower agrees to execute and deliver,
at the request and expense of the Lender, such deeds, documents, instruments,
and assurances as the Lender may reasonably request in connection with any such
assignment.
SECTION 10.04 PARTICIPATION:
(a) The rights, benefits and obligations of the Lender under or in
respect of this Agreement (referred in this Section 10.04 as
the "Rights") may, in whole or in part, be participated by the
Lender (referred to in this Section 10.04 as a
"Participation") from time to time to one or more Persons and
for this purpose the Lender may, upon securing the consent of
the Borrower, such consent not to be unreasonably withheld,
disclose, on a confidential basis, to a potential participant
(referred in this Section 10.04 as a "Participant") such
information about the Borrower as the Borrower may permit and
the Lender may see fit.
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(b) If the Rights are the subject of a Participation, (i) the
Lender's obligations under this Agreement (including, without
limitation, its commitment to the Borrower hereunder) shall
remain unchanged, (ii) the Lender shall remain solely
responsible to the Borrower for the performance of such
obligations, (iii) the Lender shall remain the holder of all
Indebtedness owing under this Agreement, (iv) the Borrower
shall continue to deal solely and directly with the Lender in
connection with such Rights and (v) no Participant shall have
any right to approve any amendment or waiver of any provision
of this Agreement, or any consent to any departure by the
Borrower therefrom.
SECTION 10.05 LIMITATION ON ASSIGNMENT AND PARTICIPATION: The Lender may, in
connection with any assignment or Participation or proposed assignment or
Participation pursuant to Sections 10.03 or 10.04 disclose to the assignee or
Participant or the proposed assignee or Participant any information relating to
the Borrower furnished to the Lender by or on behalf of the Borrower provided
that prior to any such disclosure the Borrower shall have consented to the
disclosure and the assignee or Participant or proposed assignee or Participant
shall have agreed to preserve the confidentiality of any confidential
information relating to the Borrower received by it from the Lender. The Lender
shall not otherwise disclose any confidential information to any person without
the consent of the Borrower, other than (a) to the Lender's officers, directors,
employees, agents and advisors, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process and (c) as requested
or required by the Office of the Superintendent of Financial Institutions or
other Governmental Authority.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 RIGHTS AND WAIVERS: The rights and remedies of the Lender under
the Documents and in connection therewith: (i) are cumulative, (ii) may be
exercised as often and in such order as the Lender considers appropriate, (iii)
are in addition to its rights and remedies under the general law, and (iv) shall
not be capable of being waived or varied except by virtue of an express waiver
or variation in writing signed by an officer of the Lender; and in particular
any failure to exercise or any delay in exercising any of such rights and
remedies shall, to the extent permitted by law, not operate as a waiver or
variation of that or any other such right or remedy; any defective or partial
exercise of any of such rights shall, to the extent permitted by law, not
preclude any other or future exercise of that or any other such right or remedy;
and no act or course of conduct or negotiation on the part of the Lender or on
its behalf shall, to the extent permitted by law, in any way preclude the Lender
from exercising any such right or remedy or constitute a suspension or variation
of any such right or remedy.
SECTION 11.02 NON-MERGER: The taking of a judgment or judgments (other than a
final order
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of foreclosure) or any other action or dealing whatsoever by the Lender shall
not operate as a merger of any indebtedness or liability of the Borrower or in
any way suspend payment or affect or prejudice the rights, remedies and powers,
legal or equitable, which the Lender may have in connection with such
liabilities, and the surrender, cancellation or any other dealings with any
security for such liabilities shall not release or affect the liability of the
Borrower hereunder or under any security held by the Lender.
SECTION 11.03 DEBITING OF ACCOUNT: Prior to the Maturity Date, the Lender shall
debit the Borrower's Account with the amount of any principal, interest, costs
or other amounts due and payable by the Borrower in accordance with the terms
hereof the payment of which is to be funded by a Drawdown pursuant to Section
2.05(b).
SECTION 11.04 NOTICES: Any notice or communication to be given under this
Agreement to the Borrower may be effectively given by delivering the same to
either the Borrower at One Geon Center, P.O. Box 122, Avon Lake, Ohio 44012,
U.S.A., Attention: Jean M. Miklosko, Assistant Treasurer or to the Borrower c/o
Fasken Campbell Godfrey, 4200 - Toronto Dominion Bank Tower, Box 20,
Toronto-Dominion Centre, Toronto, Ontario, M5K 1N6, Attention: Jon J. Holmstrom,
and marked URGENT or by sending the same by prepaid registered mail to it at
either such address. Any notice or communication to be given under this
Agreement to the Lender may be effectively given by delivering the same to
Canadian Imperial Bank of Commerce, Commerce Court West, 7th Floor, Toronto,
Ontario, M5L 1A2, Attention: Doug Zinkiewich, Director or by sending the same by
prepaid registered mail to it such address. Any notice so delivered or mailed
shall be effective when received.
SECTION 11.05 STATEMENTS AND REPORTS: Except as otherwise provided herein, all
statements, reports, certificates, opinions, appraisals and other documents or
information required to be furnished to the Lender by the Borrower under this
Agreement shall be supplied by the Borrower without cost to the Lender.
SECTION 11.06 SEVERABILITY: The invalidity, for any reason, of any term or
provision of this Agreement shall not in any manner invalidate or cause the
invalidation of any other term or provision thereof but the same shall be deemed
to have been severed therefrom so that the validity, legality and enforceability
of the remaining terms and provisions shall not be affected, prejudiced or
impaired thereby.
SECTION 11.07 GOVERNING LAW: This Agreement has been made in the Province of
Ontario and shall be construed, interpreted and performed in accordance with the
laws of Ontario and the applicable laws of Canada.
SECTION 11.08 TIME OF ESSENCE: Time is of the essence of this Agreement, and a
forbearance by the Lender of the strict application of this provision shall not
operate as a continuing or subsequent forbearance.
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SECTION 11.09 FURTHER ASSURANCES: The Borrower shall from time to time, upon
every reasonable request of the Lender, make, do, execute, and deliver or cause
to be made, done, executed and delivered all such further acts, deeds,
assurances and things as may be necessary in the opinion of the Lender, acting
reasonably, for more effectually implementing and carrying out the true intent
and meaning of this Agreement.
SECTION 11.10 ENTIRE AGREEMENT: This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and supersedes the
committed offer to finance dated September 29, 1997 with respect to the Credit.
There are no restrictions, agreements, promises, warranties, covenants or
undertakings made by the parties other than those set forth in the Documents. No
amendment, modification or termination of the Documents shall be effective
unless made in writing and signed by the party intended to be bound thereby.
SECTION 11.11 CONFLICT: In the event that there is any conflict or inconsistency
between the provisions contained in this Agreement and the provisions contained
in any Document delivered pursuant to or in connection with this Agreement, the
provisions of this Agreement shall govern and shall override the provisions
contained in such other Document.
SECTION 11.12 NO THIRD PARTY BENEFICIARIES: Subject to Article Eleven hereof,
this Agreement shall be for the sole benefit of the Lender and the Borrower, and
is not for the benefit of any other person.
SECTION 11.13 COUNTERPARTS: This Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an
original and all of which when taken together constitute but one and the same
agreement; any party may execute this Agreement by signing any counterpart of
it.
SECTION 11.14 RELATIONSHIP OF PARTIES: The provisions contained in this
Agreement shall not create or be deemed to create any relationship as between
the Borrower and the Lender other than that of debtor and creditor.
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IN WITNESS WHEREOF the parties hereto have duly executed this Agreement
as of the date first written above.
1250828 ONTARIO INC.
Per: /s/ Jean Miklosko
-----------------------------------
Name: Jean Miklosko
Title: Assistant Treasurer
CANADIAN IMPERIAL BANK OF
COMMERCE
Per: /s/ Doug Zinkiewich
-----------------------------------
Name: Doug Zinkiewich
Title: Director