EX-10.7 3 dex107.htm REVOLVING CREDIT AGREEMENT Revolving Credit Agreement

Exhibit 10.7

 

 

 

 

REVOLVING CREDIT AGREEMENT

 

dated for reference March 1, 2003

 

BETWEEN:

 

COSTCO WHOLESALE CANADA LTD.

 

AND:

 

ROYAL BANK OF CANADA

 


Table of Contents

 

1.    INTERPRETATION

   1

1.1

  

Definitions

   1

1.2

  

Applicable Law

   9

1.3

  

Severability

   10

1.4

  

Successors and Assigns

   10

1.5

  

Included Words

   10

1.6

  

Headings and Marginal References

   10

1.7

  

Cross References

   10

1.8

  

Use of Word “Including”

   10

1.9

  

Expiration of Summary

   10

1.10

  

Currency

   11

1.11

  

Payment Dates and Interest Calculation

   11

1.12

  

Accounting Terms

   11

2.    REPRESENTATIONS AND WARRANTIES

   11

2.1

  

Representations and Warranties

   11

2.2

  

Status of the Borrower

   11

2.3

  

Due Authorization

   11

2.4

  

No Contravention

   12

2.5

  

No Breach

   12

2.6

  

Leases and Licences

   12

2.7

  

No Financial Default

   12

2.8

  

Disclosure of Material Facts

   13

2.9

  

Consents and Approvals

   13

2.10

  

Title to Assets by the Borrower

   13

2.11

  

No Default

   13

2.12

  

Borrower’s Financial Status

   13

2.13

  

Quarterly Reports of Borrower

   13

2.14

  

No Material Adverse Change

   14

2.15

  

Accuracy of Statements

   14

2.16

  

Environmental Law

   14

2.17

  

Taxes

   14

2.18

  

Insurance

   14

2.19

  

No Litigation

   15

3.    THE CREDIT FACILITY

   15

3.1

  

Establishment of the Credit Facility

   15

3.2

  

Nature of the Credit Facility

   15

3.3

  

Currencies and Other Options Under the Credit Facility

   15

3.4

  

Interest on Advances Under the Credit Facility

   15

3.5

  

Interest Act of Canada

   16

3.6

  

Manner of Making Advances

   16

3.7

  

Notice for Advances Under the Credit Facility

   16

3.8

  

Conversions of Borrowings

   16

 


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3.9

  Default Interest and the Borrower’s Indemnity    17

3.10

  Indemnity for Out-Of-Pocket Expenses    17

3.11

  Effective Time for Section 3 Notices    17

3.12

  Increased Costs    18

3.13

  Borrower’s Option on Receipt of Certificate    18

3.14

  Increased Cost Limitation    19

3.15

  Borrower’s Right to Revolve the Credit Facility    20

3.16

  Repayment of Credit Facility    20

3.17

  Extension of Payment Date    20

3.18

  Currency of All Payments    20

3.19

  Standby Fee    21

3.20

  Standby Fee on Termination or Reduction    21

3.21

  Evidence of Indebtedness    21

3.22

  Guarantee Letters and Letters of Credit    21

4.    BANKERS’ ACCEPTANCES

   22

4.1

  Guarantee Letters and Letters of Credit    22

4.2

  Calculation of Borrowings    22

4.3

  Notice    23

4.4

  Form of Undertaking    23

4.5

  Execution and Delivery of Drafts    23

4.6

  Authority    23

4.7

  Negotiation of Drafts    23

4.8

  Responsibility for Presigned Drafts    24

4.9

  Power of Attorney    24

4.10

  Issuance and Maturity    24

4.11

  Failure to Provide Notice    24

4.12

  Payment by Borrower    24

4.13

  No Days of Grace    24

4.14

  Acceptance Fees    24

4.15

  Calculation of Acceptance Fees    25

4.16

  Increased Costs    25

4.17

  DBNA    25

4.18

  Payment Date Restriction    25

5.    SECURITY FOR BORROWINGS

   25

5.1

  Security for Borrowings    25

5.2

  Conflict Between the Agreement and Lenders’ Security    26

6.    CREDIT FACILITY CONDITIONS PRECEDENT

   26

6.1

  Conditions Precedent to Initial Borrowings    26

6.2

  Conditions Precedent to Subsequent Borrowings    27

7.    COVENANTS OF THE BORROWER

   27

7.1

  Borrower Covenants    27

7.2

  Environmental Law    31


iii

 

8.    EVENTS OF DEFAULT

   31

8.1

  Definition of Event of Default    31

8.2

  Remedies    33

8.3

  Bankers’ Acceptances, Guarantee Letters, Etc. Outstanding    34

8.4

  Remedies Cumulative    34

8.5

  Waivers    35

8.6

  Application of Payments Following Acceleration    35

8.7

  Lender May Perform Covenants    35

9.    GENERAL

   35

9.1

  Waiver or Modification    35

9.2

  Lender Must Sign Amendments, Modifications, Etc.    35

9.3

  Successors and Assigns    36

9.4

  Assignment After Default    36

9.5

  Time of the Essence    36

9.6

  Further Assurances    36

9.7

  Judgment Currency    36

9.8

  Account Debit Authorization    36

9.9

  Expenses    37

9.10

  Survival of Representations and Warranties    37

9.11

  Notice    37

9.12

  Disruption of Postal Service    37

9.13

  Lender to Grant Releases and Priority    38

9.14

  Indemnity    38

9.15

  Counterparts    38

9.16

  Reasonable Consent or Approval of the Parties    38

9.17

  No Deduction for Taxes    38

9.18

  Entire Agreement    38

 

SCHEDULE A COMMITMENT

 

SCHEDULE B INTEREST RATES AND FEES

 

SCHEDULE C OFFICER’S COMPLIANCE CERTIFICATE

 

SCHEDULE D BANKERS’ ACCEPTANCES

 

SCHEDULE E BANKERS’ ACCEPTANCES UNDERTAKING

 

SCHEDULE F COMMERCIAL PAPER PROGRAM


REVOLVING CREDIT AGREEMENT

 

This Agreement is dated for reference March 1, 2003

 

BETWEEN:

 

COSTCO WHOLESALE CANADA LTD., a corporation incorporated under the Canada Business Corporations Act, having its head office at 415 West Hunt Club Road, Ottawa, Ontario, K2E 1C5

 

AND:

 

ROYAL BANK OF CANADA, a Canadian chartered bank having its head office in Montreal, Quebec and a branch in Toronto, Ontario

 

WHEREAS:

 

A.    The Lender has agreed to make available to the Borrower a committed revolving credit facility to be used by the Borrower for its general corporate purposes;

 

B.    The Borrower has accepted the Lender’s offer.

 

WITNESSETH THAT in consideration of the mutual covenants and agreements hereinafter set forth, the parties hereto covenant and agree each with the other as follows:

 

1.    INTERPRETATION

 

1.1    Definitions

 

Where used in the Agreement, the following terms shall have the following meanings:

 

Acceptance Fee” means the fee to be paid by the Borrower to the Lender pursuant to §4.14 in consideration for the Lender accepting a Bankers’ Acceptance or pursuant to Schedule D in consideration for a Discount Note Lender making a Discount Note Loan (both as defined in Schedule D);

 

Acceleration Date” has the meaning ascribed in §8.2(b) of the Agreement;

 

Additional Amount” has the meaning ascribed in §3.12 of the Agreement;

 

Advances” means collectively, Canadian Advances and U.S. Advances;

 

Affiliate” of a Person means 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

 


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of any Person, whether through the ownership of shares or by contract or otherwise, and without restricting the above, one corporate body shall be deemed to be affiliated with another corporate body if one of them is the Subsidiary of the other or both are Subsidiaries of the same corporate body;

 

Agreement” means this revolving credit agreement dated for reference March 1, 2003, as amended, restated, modified, supplemented, extended, renewed or replaced from time to time;

 

Bankers’ Acceptances” means Drafts in multiples of not less than $500,000 Face Amount and aggregating immediately following availment on any day at least $1,000,000 each for periods of not less than one month nor more than six months (excluding in each case days of grace) drawn by the Borrower and accepted as provided in Section 4;

 

Borrower” means Costco Wholesale Canada Ltd., its successors and permitted assigns;

 

Borrower’s Commercial Paper Program” means the issuance and sale by the Borrower of up to Cdn$140,000,000 of short-term promissory notes pursuant to the terms and conditions described in Schedule F hereto;

 

Borrowing” means a utilization by the Borrower of the Credit Facility by way of Canadian Advances, U.S. Advances, Bankers’ Acceptances, Guarantee Letters or Letters of Credit, and “Borrowings” means the aggregate of such utilizations;

 

Borrowing Option” means any of the borrowing options available to the Borrower pursuant to §3.3;

 

Branch of Account” means the address of the branch of the Lender set out under the Lender’s name on Schedule A or such other branch in Canada as the Lender may advise the Borrower in writing;

 

Business Day” means a day, excluding Saturday and Sunday, on which banking institutions are open for business in Toronto, Ontario, Canada and Vancouver, British Columbia, Canada and in respect of any payments hereunder in U.S. Funds, a day on which banking institutions are also open for business in New York, New York, U.S.A.;

 

Canadian Advances” means any advance or conversion under the Credit Facility requested by the Borrower in Canadian Funds and advanced by the Lender in Canadian Funds or determined as such pursuant to §4.12;

 

Canadian Funds” and “Cdn$” means lawful currency of Canada;

 

Capital Lease” means a lease of which all or a portion of the rents payable thereunder would be included in total liabilities on a balance sheet prepared in accordance with GAAP;

 

CDOR Rate” means that annual rate of interest equal to the average “BA 1 Month” interest rates for Canadian Funds bankers’ acceptances displayed and identified as such on the “Reuters Screen CDOR Page” (as defined in the International Swap Dealers Association, Inc. definitions, as modified and amended from time to time) as of 10:00 a.m. local time at Toronto, Ontario on


3

 

any particular day and, if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Lender after 10:00 a.m. local time at Toronto, Ontario to reflect any error in a posted rate of interest or in the posted average annual rate of interest). If such rates are not available on the Reuters Screen CDOR Page on any particular day, then the CDOR Rate on that day shall be calculated as the arithmetic mean of the 30 day rates applicable to Canadian Funds bankers’ acceptances quoted by three major Canadian Schedule I chartered banks as of 10:00 a.m. local time at Toronto, Ontario on such day, or if such day is not a Business Day, then on the immediately preceding Business Day. The three major Canadian Schedule I chartered banks shall, unless the Borrower and the Lender otherwise agree, be the Lender, Bank of Montreal and Canadian Imperial Bank of Commerce;

 

Change in Control” means a situation where any Person or Persons acting in concert shall in the aggregate, directly or indirectly, acquire control or acquire ownership (beneficially or otherwise) more than 50% (by number of shares) of the issued and outstanding voting shares of the Borrower;

 

Charter” means, as the context requires, the constating documents of the Borrower and includes any amendments thereto;

 

Chief Financial Officer” means the Vice President/Treasurer of the Borrower, or, if there is no such person, the person designated as such by the board of directors of the Borrower and, if no such person is designated, the person responsible for reporting to the board of directors of the Borrower on the financial condition and performance of the Borrower;

 

Closing Date” means March 21, 2003 of such earlier or later date as the Lender and the Borrower may agree to in writing;

 

Commitment” means the obligation of the Lender to make available to the Borrower by way of Advances, Bankers’ Acceptances, Guarantee Letters or Letters of Credit an aggregate principal amount at any given time outstanding or determined or deemed to be utilized, of up to but not exceeding the amount in Canadian Funds set opposite its name on Schedule A or Equivalent Amount in U.S. Funds, to the extent not cancelled, increased, reduced or terminated pursuant to the Agreement;

 

Commitment Fee” means the non-refundable commitment fee of $90,000, which represents 15 basis points on the Commitment, payable by the Borrower to the Lender;

 

Contaminant” means any pollutant, dangerous substance, liquid waste, industrial waste, hauled liquid waste, toxic substance, hazardous waste, hazardous material, hazardous substance or contaminant as defined in any Environmental Law;

 

Contingent Obligation” means any agreement, undertaking or arrangement by which a Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon the obligation or liability of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or otherwise assures any creditor of such other Person, against loss, including any comfort letter, operating agreement, take-or-pay contract or application for letter of credit (except for Letters of Credit or Guarantee Letters);


4

 

Corporate   Distribution” means:

 

(a)   Dividends or other distributions on or in respect of capital stock of a corporation (except for dividends or other distributions payable solely in shares of capital stock); and

 

(b)   the redemption, retirement or acquisition of such stock or of warrants, rights or other options to purchase such stock (except when solely in exchange for such stock);

 

Costco US” means Costco Wholesale Corporation, a Washington corporation and its successors and permitted assigns;

 

Costco US Credit Agreement” means the “Short-Term Revolving Credit Agreement” dated November 15, 2000, among, inter alia, Costco US as borrower and Bank of America, N.A. as Administrative Agent for the Lenders, First Union National Bank, as Documentation Agent for the Lenders and Union Bank of California as Syndication Agent for the Lenders, and other Financial Institutions Party thereto, as the said credit agreement may be amended, extended, renewed, replaced, restated and in effect from time to time;

 

Costco US Guaranty” means the guaranty pursuant to which Costco US guarantees the payment to the Lender of all amounts owing by the Borrower under the Agreement, as amended, restated, modified, supplemented, extended, renewed or replaced from time to time;

 

Credit Facility” means the committed revolving credit facility established by the Lender in favour of the Borrower pursuant to §3.1;

 

Currencies” means Canadian Funds or U.S. Funds;

 

Current Assets” mean those assets of the Borrower and its Subsidiaries which are determined to be current assets in accordance with GAAP;

 

DBNA” means the Depository Bills and Notes Act, S.C. 1998, c. 13 and regulations issued pursuant to that act, as from time to time amended;

 

Dispositions” means a sale (including a lease back transaction), alienation, lease or other disposition by a Person of any of that Person’s property or assets;

 

Dividends” means dividends paid on capital stock (cash or property) but does not include stock dividends;

 

Draft” means a commercial draft of the Lender in its prescribed form made by the Borrower in accordance with the provisions of Section 4 of the Agreement;

 

Drawdown Date” means a Business Day on which a Borrowing is advanced to or converted by the Borrower or renewed by the Lender;

 

Environmental Activity” means any past, present or proposed future activity, event or circumstance in respect of a Contaminant, including, its storage, use, holding, collection, purchase, accumulation, assessment, generation, manufacture, construction, processing, treatment, stabilization, disposition, handling or transportation, or its Release, escape, leaching, dispersal or migration into the natural environment, including the movement through or in the air, soil, surface water or groundwater;


5

 

Environmental Law” means any and all applicable laws, statutes, regulations, treaties, orders, judgements, decrees, ordinances, official directives and authorizations, in each case having the force of law, of any Governmental Body relating to the environment, or any Environmental Activity;

 

Equivalent Amount” means at any time on any date, the amount in a currency other than Canadian Funds or in Canadian Funds, as the case may be, which would result from the conversion of Canadian Funds to a given amount of that other currency or of that other currency to a given amount of Canadian Funds, as the case may be, determined on the basis of the Spot Buying Rate for that other currency against Canadian Funds or Canadian Funds against that other currency, as the case may be. If the date for determination of an Equivalent Amount is not a Business Day, the applicable rate shall be the Spot Buying Rate quoted for the immediately preceding Business Day;

 

Event of Default” means any event set forth in §8.1 of the Agreement;

 

Face Amount” means the amount at maturity for which a Bankers’ Acceptance is drawn;

 

Financial Forecast” means the financial forecast to be prepared by the Borrower for a one year period, which financial forecast shall include a forecast of monthly operating results and of monthly cash flow and a pro forma consolidated balance sheet for such one year period;

 

GAAP” means generally accepted accounting principles as in effect from time to time of the Canadian Institute of Chartered Accountants, including those set out in the Canadian Institute of Chartered Accountants Handbook;

 

G/L Fee” means the fee for Guarantee Letters charged by the Lender as set forth in §3.22 and Schedule B;

 

Governmental Approval” means any authorization, permit, approval, grant, licence, consent, right, privilege, registration, filing, order, commitment, judgement, direction, ordinance, decree or like instrument or affirmation issued or granted by any Governmental Body;

 

Governmental Body” means, as the context requires, any government, parliament, legislature, regulatory authority, agency, tribunal, department, commission, board or court or other law, regulation or rule making entity (including a Minister of the Crown) having or purporting to have jurisdiction on behalf of Canada, any province, a municipality, a region, a district, any subdivision thereof or other lawful authority;


6

 

Guarantee Letters” means letters of guarantee issued by the Lender pursuant to paragraph 3.22;

 

Judgment Currency” has the meaning ascribed in §9.7;

 

L/C Fee” means the fee for Letters of Credit charged by the Lender as set forth in §3.22 and Schedule B;

 

Lender” means Royal Bank of Canada, its successors and assigns;

 

Lender’s Security” means all of the items of security referred to in §5.1;

 

Letters of Credit” means letters of credit issued by the Lender pursuant to §3.22;

 

Lien” means any mortgage, lien, charge, pledge, hypothecation, security interest or other encumbrance or title retention agreement and any other agreement or arrangement having substantially the same economic effect;

 

Long Term Debt” means those liabilities which, on a consolidated basis, are determined to be long term debt of the Borrower in accordance with GAAP;

 

Material Subsidiaries” means, at any particular time, any Subsidiary of the Borrower whose Total Assets as at the close of its fiscal quarter ended immediately prior to such time represent more than 5% of the Total Assets of the Borrower and its Subsidiaries on a consolidated basis as at the close of such fiscal quarter, and any Subsidiary whose revenues (as determined in accordance with GAAP) for the four consecutive fiscal quarters ended immediately prior to such time represent more than 5% of the revenues (as determined in accordance with GAAP) of the Borrower and its Subsidiaries, on a consolidated basis, for such four consecutive fiscal quarters;

 

Payment Date” means March 22, 2004 and thereafter that date which is the later of:

 

(a)   364 days after the current Payment Date, and

 

(b)   such date as the Lender may from time to time determine following written notice from the Borrower requesting a Payment Date extension,

 

in both cases subject to the provisions of §3.17;

 

Permitted Encumbrances” means:

 

(a)   liens for taxes, assessments or governmental charges or levies not at the time due and delinquent or the validity of which is being contested at the time by the Borrower or any of its Subsidiaries in good faith;

 

(b)   the lien of any judgement rendered or claim filed against the Borrower or any of its Subsidiaries which it shall be contesting in good faith;

 

(c)   undetermined or inchoate liens and charges, including construction liens, liens incidental to current operations of the Borrower or any of its Subsidiaries which have not at such time been filed pursuant to law against the Borrower or any of its Subsidiaries or which relate to obligations neither due nor delinquent;


7

 

(d)   restrictions, including land use contracts and covenants, easements, rights-of-way and mortgages thereof, servitudes, undersurface rights or other similar rights in land granted to or reserved by any Persons or minor defects or irregularities in title, all of which in the aggregate do not materially impair the usefulness of the property to the business of the Borrower or any of its Subsidiaries, as the case may be, subject to any such restriction, easement, right-of-way, servitude or other similar rights in land;

 

(e)   security given to a public utility or any Governmental Body in connection with the operations of the Borrower or any of its Subsidiaries in the ordinary course of their respective businesses;

 

(f)   the reservations, limitations, provisos and conditions, if any, expressed in any original grants from the Crown;

 

(g)   Purchase Money Obligations;

 

(h)   lease obligations which are not Capital Leases entered into by the Borrower or any of its Subsidiaries with arm’s length third parties in respect of machinery and equipment (including motor vehicles, office equipment, telecommunication equipment, photocopiers, telephones, telecopier machines) used in the ordinary course of business by the Borrower or any of its Subsidiaries;

 

(i)   security granted pursuant to the Lender’s Security;

 

(j)   any Lien permitted by the Lender or pursuant to any encumbrance permitted by the security referred to in §(i) above; and

 

(k)   any Lien securing indebtedness or other obligations in existence as at September 1, 2002, as reflected in the financial statements referred to in §2.12;

 

(l)   any Lien other than those permitted pursuant to §(a) to (k) above securing indebtedness or other obligations up to a maximum aggregate amount at any time of $50,000,000;

 

Person” means and includes an individual, a partnership, a corporation, a joint stock company, a trust, an unincorporated association, a joint venture or other entity or a Governmental Body or any agency or political subdivision thereof;

 

Potential Preferred Claims” means the aggregate of any rights, claims or preferences whether statutory in nature or otherwise and whether secured or unsecured, which rank in priority to the Credit Facility, including any right or claim which any unpaid supplier of inventory may have pursuant to the Bankruptcy and Insolvency Act (Canada);

 

Power of Attorney” means the Lender’s power of attorney with respect to Bankers’ Acceptances executed by the Borrower in favour of the Lender authorizing the Lender to execute Drafts on behalf of the Borrower;


8

 

Prime Rate” means the floating annual rate of interest announced from time to time by the Lender as its reference rate then in effect for determining interest rates on Canadian dollar commercial loans in Canada by the Lender in all cases adjusting automatically on the effective date of any change to such rate without the necessity of any notice to the Borrower upon each announced change to such rate;

 

Prior Credit Agreement” means the credit agreement between National Bank of Canada, as agent, and the Borrower dated March 10, 1999, as amended;

 

Purchase Money Obligations” means:

 

(a)   any Lien existing and assumed at the time of acquisition by the Borrower or any of its Subsidiaries on any property acquired from arms length third parties;

 

(b)   any Lien or Capital Lease on any property owned by the Borrower or any of its Subsidiaries on the Closing Date or acquired by the Borrower or any of its Subsidiaries from arm’s length third parties after the Closing Date to secure the whole or any part of the purchase price of such property or moneys borrowed to pay such purchase price; and

 

(c)   any extensions, renewals, replacements, substitutions or refinancing of any Lien or other security interest described in §(a) and (b) above provided that the principal amount of the indebtedness secured thereby outstanding on the date of the extension, renewal, replacement, substitution or refinancing is not increased to an amount greater than the amount outstanding on the date the Lien or other encumbrance or title retention agreement was first granted or assumed on the property,

 

provided that any such Liens are secured only by the property so owned or acquired and not by any other assets and may be discharged or caused to be discharged upon payment in full of the amount permitted to be secured under §(a) to (c) inclusive above;

 

Release” includes discharge, spray, inject, inoculate, abandon, deposit, spill, leak, seep, pour, emit, empty, throw, dump, place and exhaust;

 

Restricted Investment” means, as at the date of determination, the aggregate of any cash investments in or cash advances to any Person other than the Borrower or an Affiliate (valued at historic cost) made or incurred by the Borrower or any of its Subsidiaries after the Closing Date (except advances made to contractors and suppliers and Governmental Bodies in the ordinary course of business and except temporary investments of excess cash in term deposits and other money market instruments) net of any reductions by repayment or otherwise and after deducting the aggregate of any cash investments in or cash advances to a Person which becomes an Affiliate of the Borrower;

 

Restricted Payment” means any payment by the Borrower or any of its Subsidiaries which:

 

(a)   is used to make a Restricted Investment,

 

(b)   is used to pay a Corporate Distribution other than a Corporate Distribution paid to the Borrower or any of its Subsidiaries, or

 

(c)   is used to repurchase or redeem shares of the Borrower;


9

 

Spot Buying Rate” means the Bank of Canada noon rate for Canadian Funds against U.S. Funds or U.S. Funds against Canadian Funds (as quoted or published from time to time by the Bank of Canada), as the case may be, on the relevant date of determination;

 

Standby Fee” means the standby fee payable by the Borrower to the Lender as set forth in §3.18 and Schedule B;

 

Subsidiary” means any corporation of which more than 50% of the Voting Shares are beneficially owned for the time being, directly or indirectly, by a Person, and includes any corporation in like relation to a Subsidiary and “Subsidiaries” means more than one Subsidiary;

 

Sufficient Copies” means two copies for the Lender or such other reasonable number of copies of reports, financial statements, certificates and other material required to be delivered by the Borrower to the Lender pursuant to the Agreement as advised by the Lender from time to time in writing;

 

Summary” means the summary of terms and conditions issued by the Lender and provided by the Lender to the Borrower dated February 10, 2003 setting out proposed terms for the Agreement;

 

Total Assets” means, at any time the total assets of a Person which would be shown as assets on a balance sheet of the Person as of such time prepared in accordance with GAAP;

 

U.S.A.” means the United States of America;

 

U.S. Advance” means any advance or conversion under the Credit Facility requested by the Borrower in U.S. Funds and advanced in U.S. Funds by the Lender;

 

U.S. Base Rate” means the annual floating rate of interest announced from time to time by the Lender as its reference rate then in effect for determining interest rates on United States dollar commercial loans in Canada by the Lender in all cases adjusting automatically on the effective date of any change to such rate without the necessity of any notice to the Borrower upon each announced change to such rate;

 

U.S. Funds” and “US$” means lawful currency of the U.S.A. in same day immediately available funds, or, if such funds are not available, the form of money of the U.S.A. that is customarily used in the settlement of international banking transactions on the day payment is due;

 

Voting Shares” means shares of any class entitled to vote in all circumstances;

 

1.2   Applicable Law

 

The Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province.


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1.3   Severability

 

If any one or more of the provisions contained in the Agreement is invalid, illegal or unenforceable in any respect in any jurisdiction, the validity, legality and enforceability of such provision shall not in any way be affected or impaired thereby in any other jurisdiction and the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

 

1.4   Successors and Assigns

 

The Agreement shall enure to the benefit of and be binding on each of the parties to the Agreement and its respective successors and permitted assigns.

 

1.5   Included Words

 

Wherever the singular or the masculine are used in the Agreement, the same shall be deemed to include the plural or the feminine or vice versa and a body politic or corporate where the context or the parties so require.

 

1.6   Headings and Marginal References

 

The division of the Agreement into paragraphs and subparagraphs and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of the Agreement.

 

1.7   Cross References

 

Unless otherwise stated, a reference in the Agreement to a numbered or lettered paragraph, subparagraph or schedule refers to the paragraph, subparagraph or schedule bearing that number or letter in the Agreement.

 

1.8   Use of Word “Including”

 

The word “including”, when following any general term or statement, is not to be construed as limiting the general term or statement to the specific terms or matters set forth immediately following such word or to similar items or matters, but such general term or statement shall rather be construed as referring to all items or matters that could reasonably fall within the broadest possible scope thereof.

 

1.9   Expiration of Summary

 

On the Closing Date, all of the terms and conditions of the Summary agreed to by the Lender and the Borrower in connection with the development of the Credit Facility (except for any terms contained in the Summary requiring payment of commitment fees by the Borrower to the Lender which terms shall remain in full force and effect until such fees have been paid) shall be deemed to be merged herein and to expire and shall thereafter have no force and effect.


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1.10   Currency

 

Unless otherwise specified all statements of, or reference to, dollar amounts in the Agreement without currency specification shall mean Canadian Funds.

 

1.11   Payment Dates and Interest Calculation

 

If the date for payment to the Lender of any sum owing hereunder or the date of advance, renewal or conversion of any sum by the Lender hereunder is not a Business Day, such payment, advance, renewal or conversion, as the case may be, shall be due or made upon the next immediately succeeding Business Day. Interest shall be payable for the day a Canadian Advance or U.S. Advance is made but not for the day of any payment on the amount paid if payment is received by the Lender prior to 10:00 a.m. local time at Vancouver, British Columbia.

 

1.12   Accounting Terms

 

Accounting terms which are not specifically defined herein shall have the meaning accorded and shall be construed in accordance with GAAP.

 

2.   REPRESENTATIONS AND WARRANTIES

 

2.1   Representations and Warranties

 

The Borrower represents and warrants to the Lender as set forth in this part of the Agreement. All representations and warranties are made as of the Closing Date and shall survive all Borrowings and no investigation at any time made by or on behalf of the Lender shall diminish in any respect whatsoever its right to rely thereon.

 

2.2   Status of the Borrower

 

The Borrower is a corporation validly existing, in good standing under the laws of Canada and is duly qualified, in good standing and authorized to do business in all jurisdictions where the character of the properties owned by it or the nature of the business transacted by it makes such qualification necessary. The Borrower has all requisite corporate power and authority to own its properties, has obtained or will obtain all material Governmental Approvals required at the Closing Date to carry on its business as now conducted and to enter into and perform its obligations under the Agreement and all instruments and agreements delivered pursuant hereto and thereto.

 

2.3   Due Authorization

 

The Agreement and every instrument or agreement delivered pursuant hereto has been duly and validly authorized by all requisite actions by the Borrower and each of such documents has been duly executed by the Borrower and when delivered will be legal, valid and binding obligations of the Borrower enforceable in accordance with its respective terms save as enforcement may be limited by:


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(a)   applicable bankruptcy, insolvency, moratorium, reorganization and similar laws at the time in effect affecting the rights of creditors generally,

 

(b)   equitable principles which may limit the availability of certain remedies, including the remedy of specific performance, and

 

(c)   the inability of the courts of Canada to give judgement for payment in foreign currencies or for payment of the additional amounts referred to in §9.7 of the Agreement.

 

2.4   No Contravention