Exhibit 2.4
SECOND AMENDED AND RESTATED
REVOLVING TERM CREDIT AGREEMENT
CELESTICA INC. AND THE SUBSIDIARIES SPECIFIED AS
DESIGNATED SUBSIDIARIES HEREIN,
AS BORROWERS
- AND -
CIBC WORLD MARKETS,
AS JOINT LEAD ARRANGER AND SYNDICATION AGENT
- AND -
RBC CAPITAL MARKETS,
AS JOINT LEAD ARRANGER AND CO-DOCUMENTATION AGENT
- AND -
BANK OF AMERICA SECURITIES LLC,
AS JOINT LEAD ARRANGER AND CO-DOCUMENTATION AGENT
- AND -
THE BANK OF NOVA SCOTIA,
AS ADMINISTRATIVE AGENT
- AND -
THE FINANCIAL INSTITUTIONS NAMED IN SCHEDULE A,
AS LENDERS
UP TO U.S.$ 500,000,000
REVOLVING TERM CREDIT FACILITY
MADE AS OF DECEMBER 17, 2002
TABLE OF CONTENTS
PAGE
ARTICLE 1
INTERPRETATION..........................................................................................3
1.1 Definitions....................................................................................3
1.2 Headings......................................................................................25
1.3 Use of Defined Terms..........................................................................25
1.4 Extended Meanings.............................................................................25
1.5 Cross References..............................................................................25
1.6 Reference to Agents or Lenders................................................................25
1.7 Accounting Terms..............................................................................26
1.8 Consolidated Financial Statements and Consolidated Accounts...................................26
1.9 Non-Banking Days..............................................................................26
1.10 References to Time of Day.....................................................................26
1.11 Severability..................................................................................26
1.12 Currency......................................................................................27
1.13 References to Statutes........................................................................27
1.14 References to Agreements......................................................................27
1.15 Consents and Approvals........................................................................27
1.16 Schedules.....................................................................................27
ARTICLE 2
THE FACILITY...........................................................................................29
2.1 Establishment of the Facility.................................................................29
2.2 Purpose, Nature and Term of the Facility......................................................29
2.3 Availability of Advances......................................................................29
2.4 Lenders' Obligations..........................................................................31
2.5 Repayment of Advances by Former Designated Subsidiaries.......................................31
2.6 Repayment of Facility.........................................................................31
2.7 Payments/Cancellation or Reduction............................................................32
2.8 Final Maturity Date; Extension of Conversion Date.............................................33
2.9 Interest on Prime Rate Advances...............................................................36
2.10 Interest on Base Rate Canada Advances.........................................................36
2.11 [Intentionally Deleted].......................................................................37
2.12 LIBOR Advances................................................................................37
2.13 Method and Place of Payment...................................................................38
2.14 Fees..........................................................................................39
2.15 Conversion Options............................................................................39
2.16 Execution of Notices..........................................................................40
2.17 Evidence of Indebtedness......................................................................40
2.18 Interest on Unpaid Costs and Expenses.........................................................40
2.19 Criminal Rate of Interest.....................................................................41
2.20 Compliance with the Interest Act (Canada).....................................................41
2.21 Nominal Rate of Interest......................................................................41
2.22 Swing Line Facility...........................................................................41
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TABLE OF CONTENTS
(CONTINUED)
PAGE
2.23 Increase In Aggregate Commitment Amount To U.S.$ 500,000,000..................................44
ARTICLE 3
LETTERS OF CREDIT.....................................................................................45
3.1 Issuance Request..............................................................................45
3.2 Issuances.....................................................................................45
3.3 Other Lenders' Participation..................................................................46
3.4 Reimbursement.................................................................................47
3.5 Deemed Disbursements..........................................................................48
3.6 Nature of Reimbursement Obligations...........................................................48
3.7 Indemnity for Costs...........................................................................49
3.8 Fees..........................................................................................49
3.9 Issuing Bank..................................................................................50
ARTICLE 4
BANKERS' ACCEPTANCES AND ACCEPTANCE NOTES..............................................................51
4.1 Funding of Bankers' Acceptances...............................................................51
4.2 Acceptance Fees...............................................................................51
4.3 Safekeeping of Drafts.........................................................................52
4.4 Term and Interest Periods.....................................................................52
4.5 Payment on Maturity...........................................................................52
4.6 Waiver of Days of Grace.......................................................................52
4.7 Special Provisions Relating to Acceptance Notes...............................................53
4.8 No Market.....................................................................................53
ARTICLE 5
CHANGE OF CIRCUMSTANCES AND INDEMNIFICATION............................................................54
5.1 [Intentionally Deleted].......................................................................54
5.2 [Intentionally Deleted].......................................................................54
5.3 Lender Representation.........................................................................54
5.4 [Intentionally Deleted].......................................................................54
5.5 Increased Costs...............................................................................54
5.6 Illegality....................................................................................55
5.7 Mitigation....................................................................................56
5.8 Taxes.........................................................................................57
5.9 Tax Refund....................................................................................59
ARTICLE 6
CONDITIONS PRECEDENT...................................................................................60
6.1 Conditions for Closing........................................................................60
6.2 Conditions for First Drawdown.................................................................61
6.3 Conditions for Subsequent Drawdowns...........................................................61
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 7
PROVISIONS RELATING TO SUBSIDIARIES....................................................................63
7.1 Designated Subsidiaries.......................................................................63
7.2 Intentionally Deleted.........................................................................65
7.3 Material Restricted Subsidiaries to Provide Guarantees........................................65
7.4 Unrestricted Subsidiaries.....................................................................65
ARTICLE 8
REPRESENTATIONS AND WARRANTIES.........................................................................67
8.1 Representations and Warranties................................................................67
8.2 Survival of Representations and Warranties....................................................71
8.3 Deemed Repetition of Representations and Warranties...........................................72
ARTICLE 9
COVENANTS..............................................................................................73
9.1 Affirmative Covenants.........................................................................73
9.2 Negative Covenants............................................................................78
9.3 Financial Covenants...........................................................................80
ARTICLE 10
DEFAULT AND ACCELERATION...............................................................................82
10.1 Events of Default.............................................................................82
10.2 Acceleration..................................................................................85
10.3 Remedies with Respect to Bankers' Acceptance Advances and Letters of Credit...................85
10.4 Remedies Cumulative and Waivers...............................................................86
10.5 Suspension of Lenders' Obligations............................................................86
10.6 Application of Payments After an Event of Default.............................................86
ARTICLE 11
THE ADMINISTRATIVE AGENT AND ADMINISTRATION OF THE FACILITY............................................88
11.1 Authorization of Action.......................................................................88
11.2 Procedure for Making Advances.................................................................88
11.3 Remittance of Payments........................................................................89
11.4 Redistribution of Payment.....................................................................90
11.5 Duties and Obligations........................................................................91
11.6 Prompt Notice to the Lenders..................................................................92
11.7 Agent's Authority.............................................................................92
11.8 Lender's Independent Credit Decision..........................................................92
11.9 Indemnification...............................................................................93
11.10 Successor Agent...............................................................................93
11.11 Taking and Enforcement of Remedies............................................................94
11.12 Reliance Upon Lenders.........................................................................95
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TABLE OF CONTENTS
(CONTINUED)
PAGE
11.13 Reliance upon Administrative Agent............................................................95
11.14 Replacement of Cancelled Commitments..........................................................95
11.15 Disclosure of Information.....................................................................96
11.16 Adjustments of Rateable Portions..............................................................97
ARTICLE 12
COSTS, EXPENSES AND INDEMNIFICATION....................................................................99
12.1 Costs and Expenses............................................................................99
12.2 Indemnification by the Borrowers..............................................................99
12.3 Funds.........................................................................................99
12.4 General Indemnity............................................................................100
12.5 Environmental Claims.........................................................................101
ARTICLE 13
GENERAL...............................................................................................103
13.1 Term.........................................................................................103
13.2 Survival.....................................................................................103
13.3 Benefit of the Agreement.....................................................................103
13.4 Notices......................................................................................103
13.5 Amendment and Waiver.........................................................................104
13.6 Governing Law................................................................................105
13.7 Further Assurances...........................................................................105
13.8 Enforcement and Waiver by the Lenders........................................................105
13.9 Execution in Counterparts....................................................................105
13.10 Assignment by the Borrowers..................................................................105
13.11 Assignments and Transfers by a Lender........................................................105
13.12 Certain Requirements in Respect of Merger, Etc...............................................108
13.13 Set-Off......................................................................................110
13.14 Time of the Essence..........................................................................110
13.15 Advertisements...............................................................................110
SCHEDULE A - LENDERS
SCHEDULE B - LENDERS' COMMITMENTS
SCHEDULE C - APPLICABLE MARGIN, FACILITY FEE, UTILIZATION FEE AND LC FEE
SCHEDULE D - QUARTERLY CERTIFICATE ON COVENANTS
SCHEDULE E - CONVERSION NOTE
SCHEDULE F - CANADIAN DESIGNATED SUBSIDIARY AGREEMENT
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SCHEDULE G - DRAWDOWN NOTICE AND NOTICE OF SWING LINE
BORROWING
SCHEDULE H - GUARANTEES
SCHEDULE I - ROLLOVER NOTICE
SCHEDULE J - TRANSFER NOTICE
SCHEDULE K - ISSUANCE REQUEST
SCHEDULE L - ACCEPTANCE NOTE
SCHEDULE M - CONSENT LENDER NOTICE
SCHEDULE N - MANDATORY COST CALCULATION
SCHEDULE O - OPINIONS OF COUNSEL
SCHEDULE P - EXTENSION REQUEST
SCHEDULE Q - PERMITTED ENCUMBRANCE CERTIFICATE
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SECOND AMENDED AND RESTATED REVOLVING TERM CREDIT AGREEMENT
MADE as of the 17th day of December, 2002.
B E T W E E N:
CELESTICA INC.,
a corporation incorporated under the laws of the Province of
Ontario,
OF THE FIRST PART,
- and -
THE SUBSIDIARIES OF CELESTICA INC. SPECIFIED HEREIN AS
DESIGNATED SUBSIDIARIES,
OF THE SECOND PART,
- and -
CIBC WORLD MARKETS,
as Joint Lead Arranger and Syndication Agent,
OF THE THIRD PART,
- and -
RBC CAPITAL MARKETS,
as Joint Lead Arranger and Co-Documentation Agent,
OF THE FOURTH PART,
BANK OF AMERICA SECURITIES LLC,
as Joint Lead Arranger and Co-Documentation Agent,
OF THE FIFTH PART,
- and -
THE BANK OF NOVA SCOTIA,
a Canadian chartered bank, as Administrative Agent
OF THE SIXTH PART,
- and -
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THE FINANCIAL INSTITUTIONS NAMED IN SCHEDULE
A, as Lenders,
OF THE SEVENTH PART.
WHEREAS Celestica Inc., the Subsidiaries of Celestica Inc. designated therein as
Designated Subsidiaries, The Bank of Nova Scotia as the Administrative Agent,
the Canadian Facility Agent, the U.S. Facility Agent and the U.K. Facility Agent
and the financial institutions named therein as the Lenders are parties to an
Amended and Restated Revolving Term Credit Agreement dated as of June 8, 2001
(the "EXISTING CREDIT AGREEMENT") which amended and restated a Credit Agreement
among Celestica Inc., the Subsidiaries of Celestica Inc. designated therein as
Designated Subsidiaries, The Bank of Nova Scotia as the Administrative Agent,
the Canadian Facility Agent, the U.S. Facility Agent and the U.K. Facility Agent
and the financial institutions named therein as the Lenders dated as of April
22, 1999;
AND WHEREAS parties hereto wish to amend and restate the Existing Credit
Agreement on the terms set forth herein;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the premises,
the covenants herein contained and other valuable consideration, the parties
hereto agree as follows:
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ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCEPTANCE NOTE" means a non-interest bearing promissory note of a Borrower
substantially in the form of Schedule L delivered to a Lender in the
circumstances set out in Section 4.7(a);
"ACQUIRED INDEBTEDNESS" means Indebtedness of any Person (i) which is
outstanding at the time that such Person becomes a Restricted Subsidiary or is
amalgamated with, or merged with or into, a Borrower or a Restricted Subsidiary;
or (ii) which is outstanding at the time that assets of a Person are acquired by
a Borrower or a Restricted Subsidiary and the obligation for repayment of which
is assumed by such Borrower or Restricted Subsidiary in connection with the
acquisition of such assets;
"ACQUIRING LENDERS" has the meaning specified in Section 2.8(b)(iii);
"ACQUISITION DATE" has the meaning specified in Section 2.8(b)(iii);
"ADDITIONAL COMPENSATION" has the meaning specified in Section 5.5;
"ADMINISTRATIVE AGENT" means Scotiabank when acting in its capacity as
administrative agent hereunder;
"ADVANCE" means a Prime Rate Advance, a Bankers' Acceptance Advance, a LIBOR
Advance, or a Base Rate Canada Advance made by the Lenders or a Lender, as
applicable, or the issuance of a Letter of Credit and "ADVANCES" means all of
them;
"AFFECTED LENDER" has the meaning specified in Section 5.7(b);
"AFFILIATE" means an affiliated body corporate and, for the purposes of this
Agreement, (i) one body corporate is affiliated with another body corporate if
one such body corporate is the Subsidiary of the other or both are Subsidiaries
of the same body corporate or each of them is controlled by the same Person and
(ii) if two bodies corporate are affiliated with the same body corporate at the
same time, they are deemed to be affiliated with each other; for greater
certainty for the purposes of this definition, "BODY CORPORATE" shall include a
Canadian chartered bank;
"AGENTS" means the Administrative Agent, the Syndication Agent and the
Co-Documentation Agents and "Agent" shall mean any one of them;
"AGREEMENT" means this agreement and all Schedules attached hereto as the same
may be amended, restated, replaced or superseded from time to time;
"ALTERNATE LENDERS" has the meaning specified in Section 2.8(b)(iv);
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"APPLICABLE LAW" means, with respect to any Person, property, transaction or
event, all applicable laws, statutes, rules, regulations, codes, treaties,
conventions, judgments, orders, awards or determinations of courts, arbitrators
or mediators, and decrees in any applicable jurisdiction which are binding on
such Person, property, transaction or event;
"APPLICABLE MARGIN" shall have the meaning specified in Schedule C;
"APPROVED CREDIT RATING AGENCY" means any one of Standard & Poor's Ratings
Services (a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.) ("STANDARD & POOR'S"),
▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S") and any other similar agency agreed
to by Celestica and the Administrative Agent;
"APPROVING LENDERS" has the meaning specified in Section 2.8(b);
"ARM'S LENGTH" has the meaning ascribed thereto under the INCOME TAX ACT
(Canada) in effect as of the date hereof;
"ASSENTING LENDER" has the meaning specified in Section 5.7(b);
"AVAILABLE SWING LINE COMMITMENT" means the monetary amount which is the
Commitment of the Swing Line Lender as may be increased or decreased from time
to time pursuant to Section 2.22(l);
"BANKERS' ACCEPTANCE" means a draft or other ▇▇▇▇ of exchange in Canadian
Dollars including, without limitation, a depository ▇▇▇▇ subject to the
DEPOSITORY BILLS AND NOTES ACT (Canada), drawn by Celestica or a Canadian
Designated Subsidiary and accepted by a Lender in accordance with Article 4;
"BANKERS' ACCEPTANCE ADVANCE" means the advance of funds to a Borrower by way of
creation and issuance of Bankers' Acceptances or by way of the issuance of an
Acceptance Note, in each case in accordance with the provisions of Article 4;
"BANKING DAY" means a day, other than a Saturday or a Sunday and, where used in
the context of a notice, delivery, payment or other communication addressed to:
(i) the Administrative Agent, which is also a day on which banks are not
required or authorized to close in Toronto, Canada and
(A) in the case of Base Rate Canada Advances in United States
Dollars, which is also a day on which banks are not required or
authorized to close in New York, New York; or
(B) in the case of LIBOR Advances in United States Dollars, which is
also a day on which banks are not required or authorized to close
in New York, New York or London, England, or which is a day on
which dealings are not carried on in the London interbank market;
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"BASE RATE CANADA" means, on any day on which such rate is determined, the
greater of (i) the variable rate of interest per annum, expressed on the basis
of a year of 365 or 366 days, as the case may be, established or quoted from
time to time by the Administrative Agent as the reference rate of interest then
in effect for determining interest rates on United States Dollar denominated
commercial loans made by it in Canada; and (ii) the Federal Funds Effective Rate
plus 1/2 of 1% per annum;
"BASE RATE CANADA ADVANCE" means a loan made by the Lenders to a Borrower on
which interest is payable based on the Base Rate Canada plus the Applicable
Margin;
"BORROWERS' COUNSEL" means ▇▇▇▇▇▇ ▇▇▇▇ Philips & ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
or such other firm of legal counsel as the Borrowers may from time to time
designate;
"BORROWERS" means Celestica and each Designated Subsidiary from time to time and
their respective permitted successors and assigns and "BORROWER" means any of
them;
"BUSINESS" means the business of:
(a) conducting a broad range of electronics manufacturing services,
including the manufacturing, assembly and testing of printed circuit
boards, printed circuit board assembly, backplanes, electro-mechanical
sub-assembly, memory modules, photonics, opto-electronic assembly,
full system assembly, product testing, quality assurance, failure
analysis and other related manufacturing services;
(b) a full range of supply chain management services such as materials
procurement, inventory management, logistics, packaging, distribution,
after-market support and refurbishment;
(c) design services including concept and product design, product
documentation and data management, prototype services, product
qualification, design for manufacturability and new product
introduction;
(d) the design, production, distribution and sale of power products; and
(e) any incidental businesses conducted by businesses acquired by a
Borrower or a Restricted Subsidiary whose principal business involves
one or more of the businesses described in paragraphs (a) through (d)
of this definition;
"CANADIAN BA RATE" means, for a particular term, the discount rate per annum,
calculated on the basis of a year of 365 days, equal to the arithmetic average
of the rates per annum for Canadian Dollar Bankers' Acceptances having such
term:
(a) for the Schedule I Reference Lenders in respect of the Bankers'
Acceptances to be accepted by the Schedule I Lenders, that appear on
the display page designated as the CDOR page (or any replacement page)
by Reuters Money Market Service (or its successor) as of 10:00 a.m.
(Toronto, Canada time) on the first day of such term; and
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(b) for the Non-Schedule I Reference Lenders in respect of the Bankers'
Acceptances or Acceptance Notes to be accepted by the Non-Schedule I
Lenders, as are quoted by such Non-Schedule I Reference Lenders as of
10:00 a.m. (Toronto, Canada time) on the first day of such term,
provided that the arithmetic average of such quoted rates shall in no
event exceed the sum of the highest of the rates that appear on the
display page designated as the CDOR page (or any replacement page) by
Reuters Money Market Service (or its successor) for the Schedule I
Reference Lenders as of 10:00 a.m. (Toronto, Canada time) on the first
day of such term plus ten basis points, each as determined by the
Administrative Agent.
"CANADIAN DOLLARS" and "CDN.$" mean the lawful currency of Canada in immediately
available funds;
"CANADIAN DESIGNATED SUBSIDIARY" means a Designated Subsidiary, (a) which was
incorporated, continued, amalgamated or otherwise created in accordance with and
continues to be governed by the laws of a Province of Canada or the federal laws
of Canada and which is domiciled in Canada; and (b) which has satisfied and
complied with the terms of Section 7.1(b);
"CAPITAL LEASE" means any leasing or similar arrangement which, in accordance
with GAAP, would be classified a capital lease;
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of Celestica or a
Subsidiary under a Capital Lease and for the purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP;
"CELESTICA" means Celestica Inc., a corporation duly incorporated, organized and
subsisting under the laws of the Province of Ontario, and any successor or
continuing corporation;
"CELESTICA CORP." means Celestica Corporation, a corporation duly incorporated,
organized and subsisting under the laws of the State of Delaware, and any
successor corporation;
"CELESTICA INTERNATIONAL" means Celestica International Inc., a corporation duly
incorporated, organized and subsisting under the laws of the Province of
Ontario, and any successor or continuing corporation;
"CERCLA" means the United States COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT OF 1980;
"CERCLIS" means the United States Comprehensive Environmental Response
Compensation Liability Information System List;
"CIBC" means Canadian Imperial Bank of Commerce, a Canadian chartered bank;
"CLAIMS" has the meaning specified in Section 12.4(a);
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"CLOSING" means the consummation of the transactions contemplated herein,
including, without limitation, the satisfaction of the conditions precedent set
out in Section 6.1 and the Facility becoming available to the Borrowers subject
to the terms of this Agreement;
"CLOSING DATE" means December 17, 2002;
"CODE" means the United States INTERNAL REVENUE CODE OF 1986;
"COMMITMENT" means the commitment of each Lender to loan a portion of the
aggregate amount of the Facility, in the amount set opposite its name in
Schedule B, as such Schedule B may be amended pursuant to (a) Section 2.23 or
(b) under a Transfer Notice pursuant to Section 13.11;
"CONSENT DESIGNATED SUBSIDIARIES" means a Designated Subsidiary; (a) which was
not incorporated, continued, amalgamated or otherwise created in accordance with
the laws of a Province of Canada or the federal laws of Canada; and (b) which
has satisfied and complied with the terms of Section 7.1(c);
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by which
any Person guarantees, endorses or otherwise becomes or is contingently liable
for the Indebtedness for borrowed monies of any other Person;
"CONTROL" means, with respect to control of a body corporate by a Person, the
holding (other than by way of security only) by or for the benefit of that
Person, or Affiliates of that Person of securities of such body corporate or the
right to vote or direct the voting of securities of such body corporate to
which, in the aggregate, are attached more than 50% of the votes that may be
cast to elect directors of the body corporate, provided that the votes attached
to those securities are sufficient, if exercised, to elect a majority of the
directors of the body corporate;
"CONTROLLED GROUP" means all members of a controlled group of corporations and
all members of a controlled group of trades or business (whether or not
incorporated) under common control which, together with the Borrowers, are
treated as a single employer under Section 414(b) or Section 414(c) of the Code;
"CONVERSION" means the conversion of one type of Advance into another type of
Advance pursuant to Section 2.15;
"CONVERSION DATE" means December 15, 2003 or such later date to which the
Conversion Date has been extended pursuant to the provisions of Section 2.8;
"CONVERSION NOTICE" means a notice substantially in the form set out in Schedule
E;
"CORPORATE REORGANIZATION" has the meaning specified in Section 13.12;
"DEFAULT" means an event which, with the giving of notice or the passage of time
or the making of any determination or any combination thereof as provided for
herein, would constitute an Event of Default;
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"DESIGNATED ACCOUNT" means an account of a Borrower of which the Administrative
Agent is notified by such Borrower from time to time for the purposes of
transactions under this Agreement;
"DESIGNATED SUBSIDIARY" means a directly or indirectly wholly-owned Restricted
Subsidiary of Celestica designated by Celestica as a Canadian Designated
Subsidiary or a Consent Designated Subsidiary in accordance with and which
complies with the applicable terms of Section 7.1 of this Agreement;
"DESIGNATED SUBSIDIARY AGREEMENT" means an agreement substantially in the form
set out in Schedule F;
"DISBURSEMENT" has the meaning specified in Section 3.4;
"DISBURSEMENT DATE" has the meaning specified in Section 3.4;
"DISSENTING LENDERS" has the meaning specified in Section 2.8(b);
"DRAWDOWN" means a drawdown of an Advance;
"DRAWDOWN DATE" means, in relation to any Advance, the date, which shall be a
Banking Day, on which the Drawdown of such Advance is made by a Borrower
pursuant to a Drawdown Notice;
"DRAWDOWN NOTICE" means a notice substantially in the form set out in Exhibit 1
to Schedule G;
"EBITDA" means, for any particular period, the aggregate of:
(a) Net Income for such period;
(b) all amounts deducted in the calculation of Net Income in respect of
Taxes, whether paid or deferred (in accordance with GAAP);
(c) all amounts deducted in the calculation of Net Income in respect of
depreciation;
(d) all amounts deducted in the calculation of Net Income in respect of
amortization;
(e) all amounts deducted in the calculation of Net Income in respect of
Interest Expense;
(f) all amounts deducted in the calculation of Net Income in connection
with the implicit financing costs of synthetic leases and Permitted
Securitization Transactions;
(g) all amounts deducted in the calculation of Net Income in determining
all non-recurring charges; and
(h) non-cash charges and purchase accounting deductions,
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provided that, in the event of the acquisition by Celestica or a Restricted
Subsidiary of (i) a corporation which becomes a new Restricted Subsidiary or
(ii) any other entity or a group of assets or an operation, provided that such
operation comprises a going concern which becomes a division or part of the
business of Celestica or a Restricted Subsidiary (an "OPERATION"), EBITDA will,
subject to (x) and (y), include the EBITDA for the newly acquired Restricted
Subsidiary or operation for its immediately preceding four fiscal quarters
completed prior to such acquisition.
(x) If such newly acquired Restricted Subsidiary or operation was,
immediately prior to such acquisition, accounted for on a stand-alone
basis, EBITDA for such newly acquired Restricted Subsidiary or
operation shall only be included in the above calculation if EBITDA
for such newly acquired Restricted Subsidiary or operation, as the
case may be, can be determined by reference to historical financial
statements satisfactory to the Administrative Agent; and
(y) If such newly acquired Restricted Subsidiary or operation:
(A) was not, immediately prior to such acquisition, accounted for on
a stand-alone basis; or
(B) was immediately prior to such acquisition, accounted for on a
stand-alone basis but, in the determination of the Administrative
Agent acting reasonably, the business of such newly acquired
Restricted Subsidiary or operation will not be conducted by
Celestica or its Restricted Subsidiary, as the case may be, in
substantially the same form or the same manner as conducted by
the vendor immediately prior to such acquisition,
then subject to the satisfaction of the Administrative Agent and the Majority
Lenders with the method of determination thereof acting reasonably, EBITDA for
such newly acquired Restricted Subsidiary or operation will be determined having
regard to historical financial results together with, and having regard to,
contractual arrangements and any other changes made or proposed to be made by
Celestica or its Restricted Subsidiary, as the case may be, to the business of
such newly acquired Restricted Subsidiary or operation;
"ENVIRONMENTAL LAWS" means applicable federal, provincial, state, municipal or
other local law, statute, regulation or by-law, code, ordinance, decree,
directive, standard, policy, guideline, rule, order, treaty, convention,
judgment, award or determination for the protection of the environment or human
health or relating to the manufacture, processing, distribution, use, treatment,
storage, Release, transport or handling of Hazardous Materials;
"EQUIVALENT AMOUNT" on any given date in one currency (the "FIRST CURRENCY") of
any amount denominated in another currency (the "SECOND CURRENCY") means the
amount of the first currency which could be purchased with such amount of the
second currency at the rate of exchange quoted by the Administrative Agent at
10:00 a.m. (Toronto, Canada time) on such date for the purchase of the first
currency with the second currency;
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"ERISA" means the United States EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974;
"EURO" means the single currency of the Participating Member States introduced
on January 1, 1999;
"EVENT OF DEFAULT" means any of the events described in Section 10.1;
"EXISTING CREDIT AGREEMENT" has the meaning specified in the first recital
hereto;
"EXEMPTED JURISDICTION" has the meaning specified in Section 13.12;
"EXTENSION REQUEST" means a request made in writing by Celestica to the
Administrative Agent substantially in the form set out in Schedule P;
"FACE AMOUNT" means, in respect of a Bankers' Acceptance, the amount payable to
the holder thereof on the maturity thereof and means, in respect of a Letter of
Credit, the maximum amount payable to a beneficiary thereunder;
"FACILITY" means the revolving term credit facility in an aggregate principal
amount of U.S.$ 350,000,000 to be made available to the Borrowers as set forth
in Article 2 as same may be increased and/or extended subject to the terms set
forth herein;
"FACILITY FEE" has the meaning specified in Section 2.14(a) and calculated in
accordance with Schedule C;
"FEDERAL FUNDS EFFECTIVE RATE" means, for any particular day, the variable rate
of interest per annum, calculated on the basis of a 360-day year as determined
by the Administrative Agent for the actual number of days elapsed, equal to:
(i) 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 Banking Day, for the next preceding Banking Day) by
the Federal Reserve Bank of New York, or
(ii) for any Banking Day on which such rate is not so published by the
Federal Reserve Bank of New York, the average of the quotations
for such day for such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing
selected by the Administrative Agent in consultation with
Celestica;
"FINAL MATURITY DATE" means the day which is one year from the last Conversion
Date;
"FREELY TRADEABLE EUROPEAN CURRENCY" means Pounds Sterling and, so long as it
trades on a LIBOR equivalent basis and is freely convertible to Canadian Dollars
and to United States Dollars, the Euro;
-11-
"GAAP" means those Canadian generally accepted accounting principles as now or
(except as provided in item (a) (iii) of the definition of Gross Funded Debt)
hereafter adopted by the Canadian Institute of Chartered Accountants or any
successor thereto;
"GLOBAL RATEABLE PORTION" means, with respect to any Lender, at any time, the
ratio, expressed as a decimal fraction, of:
(i) such Lender's Commitment at such time to
(ii) the aggregate of the Commitments of all of the Lenders at such
time;
"GROSS FUNDED DEBT" of Celestica, on a consolidated basis, means at any
particular time and without duplication, the aggregate of:
(a) the following amounts determined in accordance with GAAP:
(i) the outstanding monetary Obligations at such time;
(ii) the Capital Lease Obligations outstanding at such time;
(iii) any other Indebtedness for borrowed money (including, without
limitation and without duplication, all Indebtedness in respect
of bankers' acceptances and letters of credit) outstanding at
such time but excluding (A) Permitted Subordinated Indebtedness,
and (B) any Indebtedness which, in accordance with GAAP adopted
as at the date of incurring such Indebtedness, qualified as
equity, so long as the terms governing such Indebtedness are not
amended after the date of incurring the Indebtedness in a manner
that would have resulted in such Indebtedness not qualifying as
equity in accordance with GAAP as adopted as at the date of
incurring such Indebtedness;
(iv) the aggregate net marked-to-market liability under all Hedging
Obligations;
(v) any Acquired Indebtedness outstanding at such time;
(vi) the outstanding amounts under any Permitted Securitization
Transactions; and
(vii) the aggregate amounts outstanding under synthetic leases to
which Celestica and its Restricted Subsidiaries are parties being
the aggregate original cost of the assets subject to all such
leases less all payments made on account of principal under all
such leases on or prior to the date on which such amounts are
determined;
plus
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(b) Contingent Liabilities of Celestica or any Restricted Subsidiary in
existence at such time;
"GUARANTEES" means the guarantees of each of the Guarantors substantially in the
form set forth in Schedule H;
"GUARANTOR" means each Person which, on the date of this Agreement, is or, after
the date of this Agreement, becomes a Material Restricted Subsidiary and
"GUARANTORS" means two or more of them;
"HAZARDOUS MATERIAL" means any contaminant, pollutant, waste of any nature,
hazardous or toxic substance or material or dangerous good as defined,
judicially interpreted or identified in any Environmental Law or any substance
that causes harm or degradation to the surrounding environment or injury to
human health and, without restricting the generality of the foregoing, includes
any pollutant, contaminant, waste, hazardous waste, deleterious substance or
dangerous good present in such quantity or state that it contravenes any
Environmental Laws or gives rise to any liability or obligation under any
Environmental Law;
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of such
Person under interest rate swap agreements, interest rate cap agreements,
interest rate collar agreements and all such other agreements or arrangements
designed to protect such Person against fluctuations in interest rates;
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(b) all obligations, contingent or otherwise, relative to the face amount
of all letters of credit, whether drawn or undrawn, and bankers'
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with GAAP, recorded as Capital Leases,
including liabilities in respect of Capital Leases incurred by such
Person in connection with sale/leaseback transactions;
(d) net liabilities of such Person under all Hedging Obligations or net
liabilities of such Person under currency, swap, forward or other
foreign exchange hedging agreements;
(e) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon), secured by a lien on the property owned or being purchased
by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not
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such indebtedness shall have been assumed by such Person or is limited
in recourse;
(f) all Contingent Liabilities of such Person; and
(g) any Acquired Indebtedness.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer;
"INDEMNIFIED PERSON" has the meaning specified in Section 5.8(b);
"INDEMNIFYING PARTY" has the meaning specified in Section 12.4(c);
"INDEMNITEE" has the meaning specified in Section 12.4(a);
"INTEREST EXPENSE" means, for any period, the aggregate consolidated interest
expense of Celestica on a consolidated basis as determined in accordance with
GAAP including the portions of any payment made in respect of Capital Leases
allocable to interest expenses but excluding deferred financing costs and other
non-cash interest expense;
"INTEREST PAYMENT DATE" shall have the meaning set out in Section 2.9;
"INTEREST PERIOD" means relative to any LIBOR Advance, Bankers' Acceptance or
Advance by way of an Acceptance Note, the period commencing on (and including)
the date on which such LIBOR Advance is made or continued as, or converted into,
a LIBOR Advance or such Bankers' Acceptance or Acceptance Note is issued, and
ending on (but excluding) the day which is, in the case of a Bankers' Acceptance
or Acceptance Note, approximately 30, 60, 90 or 180 days thereafter, or which in
the case of any LIBOR Advance, numerically corresponds to such date one, two,
three or six months thereafter (or, if such month has no numerically
corresponding date, on the last Banking Day of such month), in each case as the
Borrower may select; provided, however, that:
(a) if such Interest Period would otherwise end on a day which is not a
Banking Day, such Interest Period shall end on the next following
Banking Day (unless, if such Interest Period applies to LIBOR
Advances, and such next following Banking Day is the first Banking Day
of a calendar month, in which case such Interest Period shall end on
the Banking Day next preceding such numerically corresponding day);
(b) the Borrowers shall not be permitted to select, collectively or in the
aggregate, Interest Periods to be in effect at any one time which have
expiration dates occurring on more than ten different dates, unless
otherwise previously consented to in writing by the Administrative
Agent; and
(c) no Interest Period may end later than the Final Maturity Date;
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"ISSUANCE REQUEST" means a request and certificate duly executed by an
authorized officer of Celestica in substantially the form of Schedule K attached
hereto;
"ISSUING BANK" means a Lender which issues a Letter of Credit pursuant to
Article 3;
"JOINT LEAD ARRANGERS" means CIBC World Markets, RBC Capital Markets and Bank of
America Securities LLC;
"LC FEE" has the meaning specified in Schedule C;
"LENDERS" means the financial institutions set out in Schedule A and "Lender"
shall mean any such financial institution;
"LENDERS' COUNSEL" means the firm of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Toronto,
Ontario, or such other firm of legal counsel as the Administrative Agent may
from time to time designate;
"LETTER OF CREDIT" means a standby letter of credit or a letter of guarantee
issued by an Issuing Bank at the request of Celestica pursuant to Section 3.1;
"LETTER OF CREDIT AVAILABILITY" means U.S.$ 50,000,000;
"LIBO RATE" means, relative to any LIBOR Advance:
(a) the rate of interest per annum of the offered quotations for deposits
in United States Dollars for a period equal or comparable to the
Interest Period in an amount comparable to the Advance as such rate is
reported on the display designated as "page 3750" or "page 3740", as
applicable (or any replacement pages) by "Telerate - The Financial
Information Network" published by Telerate Systems, Inc. (or such
other company or service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for deposits in
United States Dollars) at or about 10:00 a.m. (London, England time)
on the applicable Rate Fixing Day; or
(b) if a rate cannot be determined under paragraph (a) above, the rate
determined by the Administrative Agent to be the arithmetic average
(rounded up if necessary, to the nearest 1/16 of 1%) of such rates as
reported on the LIBO page by Reuters Money Market Service (or its
successor) for a period equal to or comparable to the Interest Period
and in an amount comparable to the Advance at or about 10:00 a.m.
(London, England time) on the applicable Rate Fixing Day provided that
at least two such rates are reported on such page; or
(c) if a rate cannot be determined under either of paragraphs (a) and (b)
above, the rate determined by the Administrative Agent for a
particular Interest Period to be the arithmetic average of the rates
per annum at which deposits in United States Dollars in immediately
available funds are offered by prime London banks to the LIBOR Offices
in the London interbank market for a period equal to or
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comparable to the Interest Period and an amount comparable to the
Advance at or about 10:00 a.m. (London, England time) on the
applicable Rate Fixing Day.
For the purposes of this definition, "RATE FIXING DAY" means in respect of each
Interest Period, the second Banking Day before the first day of such Interest
Period.
"LIBOR ADVANCE" means a loan made by the Lenders to a Borrower on which interest
is payable at the LIBO Rate plus the Applicable Margin;
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such in Schedule A, if applicable, or designated in the Transfer
Notice by which a financial institution becomes a Lender pursuant to Section
13.11, or such other office of a Lender (or any successor, assign or Affiliate
of such Lender) as designated from time to time by notice from such Lender to
Celestica and the Administrative Agent, whether or not outside Canada, which may
be making or maintaining the LIBOR Advances of such Lender;
"LIENS" means any security interest, mortgage, pledge, hypothec, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise) or
charge against or interest in property to secure payment of a debt or
performance of an obligation (including the interest of a vendor or lessor under
any conditional sale agreement, or of a lessor under any lease including a
Capital Lease or other title retention agreement);
"LOAN DOCUMENTS" means this Agreement, the Guarantees provided for herein and
all other agreements, documents or instruments to be executed and delivered to
the Administrative Agent, the Lenders or any of them by the Borrowers, the
Guarantors or any of them hereunder or thereunder or pursuant hereto or thereto;
"LOSSES" has the meaning specified in Section 12.4(a);
"MAIN FACILITY COMMITMENT" means, at any time, the amount, if any, by which the
Commitment of the Swing Line Lender exceeds the Available Swing Line Commitment
at that time;
"MAIN FACILITY RATEABLE PORTION" means, with respect to any Lender, at any time,
subject to adjustment by the Administrative Agent in accordance with Section
11.16 of this Agreement and also subject to Sections 2.3 and 4.1 of this
Agreement, the ratio, expressed as a decimal fraction, of;
(i) such Lender's Commitment at such time (or, if such Lender is the
Swing Line Lender, the Main Facility Commitment) to
(ii) the aggregate of the Commitments of all of the Lenders (other
than the Swing Line Lender) at such time and the Main Facility
Commitment at such time;
"MAJORITY LENDERS" means the Lenders, the Commitments of which are in the
aggregate more than 51% of the aggregate amount of Commitments;
-16-
"MANDATORY COST" means, in relation to a LIBOR Advance, an amount determined in
accordance with Schedule N;
"MATERIAL ADVERSE CHANGE" means any change of circumstances or any event which
would reasonably be likely to have a Material Adverse Effect;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the business,
assets, operations, prospects or condition, financial or otherwise, of Celestica
and of the Restricted Subsidiaries taken as a whole, or (b) the ability of any
Borrower to perform any of its Obligations, or (c) the rights of the
Administrative Agent and the Lenders against the Obligors on a consolidated
basis pursuant to the Loan Documents;
"MATERIAL RESTRICTED SUBSIDIARY" means (i) each Designated Subsidiary and (ii)
any other Restricted Subsidiary of Celestica whose assets total greater than
U.S.$ 150,000,000 on an unconsolidated basis on the date referenced in the most
recently delivered set of financial statements delivered pursuant to Section
9.1(a)(ii); provided, however, that the unconsolidated assets of all Restricted
Subsidiaries which are not Material Restricted Subsidiaries shall not exceed on
the date referenced in such financial statements, in the aggregate, ten per cent
(10%) of the unconsolidated assets of the Borrowers and the Restricted
Subsidiaries on such date, and in the event that the unconsolidated assets of
all Restricted Subsidiaries which are not Material Restricted Subsidiaries
exceeds, on the date referenced in such financial statements, in the aggregate,
ten percent (10%) of the unconsolidated assets of the Borrowers and Restricted
Subsidiaries, Celestica shall set out in a Schedule to the Officer's Certificate
to be delivered in accordance with Section 9.1(a)(iii) the Restricted
Subsidiaries which it wishes to designate as Material Restricted Subsidiaries
such that unconsolidated assets of all of the Restricted Subsidiaries which are
not Material Restricted Subsidiaries shall not exceed ten percent (10%) of the
unconsolidated assets of the Borrowers and Restricted Subsidiaries on such date;
"NET INCOME" means, for any particular period, net income of Celestica for such
period determined on a consolidated basis in accordance with GAAP;
"NON-SCHEDULE I LENDERS" means Lenders which are not Canadian chartered banks
that are listed on Schedule I to the BANK ACT (Canada);
"NON-SCHEDULE I REFERENCE LENDERS" means, where there are two or fewer Lenders
which are not Canadian chartered banks that are listed on Schedule I to the BANK
ACT (Canada), all such Lenders, and where there are more than two such Lenders,
two of such Lenders chosen by the Administrative Agent and identified by written
notice to Celestica and where there is one such Lender, that Lender;
"NOTICE OF AMOUNT" has the meaning specified in Section 5.5;
"NOTICE OF SWING LINE BORROWING" means a notice substantially in the form set
out in Exhibit 2 to Schedule G;
"NOTIFICATION DATE" has the meaning specified in Section 12.5(c);
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"NOTIONAL BA PROCEEDS" means, with respect to a Bankers' Acceptance Advance, the
aggregate Face Amount of the Bankers' Acceptances or principal amount of the
Acceptance Notes comprising such Bankers' Acceptance Advance, if applicable,
less the aggregate of:
(a) a discount from the aggregate face amount of such Bankers' Acceptances
or principal amount of such Acceptance Notes, if applicable,
calculated in accordance with normal market practices based on the
Canadian BA Rate for the term of such Bankers' Acceptances or
Acceptance Notes, if applicable; and
(b) the amount of the acceptance fees determined in accordance with
Section 4.2 in respect of such Bankers' Acceptance Advance;
"OBLIGATIONS" means all obligations (monetary and otherwise) of the Borrowers
arising under or in connection with this Agreement and each other Loan Document;
"OBLIGORS" means, collectively, the Borrowers and the Guarantors and "OBLIGOR"
means any one of them;
"OFFICER'S CERTIFICATE" means a certificate signed by any one of the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, any Senior Vice-President, any
Vice-President, the Treasurer, the Controller, the Assistant Treasurer, the
Secretary or the Assistant Secretary of Celestica;
"OFFICIAL BODY" means any national, federal or provincial government or any
government of any political subdivision thereof, or any agency, authority,
board, central bank, monetary authority, commission, department or
instrumentality thereof, or any court, tribunal, grand jury, mediator or
arbitrator, whether foreign or domestic, or any non-governmental regulatory
authority to the extent that the rules, regulations and orders of such body have
the force of law;
"ORGANIC DOCUMENT" means, relative to any body corporate, its articles of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its Shares;
"OTHER TAXES" means any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, any of the Loan Documents, or any other document in
connection herewith;
"OUTSTANDING AMOUNT" has the meaning specified in Section 2.3;
"PARTICIPATING MEMBER STATE" means a member state of the European Communities
that adopts or has adopted the Euro as its lawful currency under the legislation
of the European Union for European Monetary Union;
"PBGC" means the Pension Benefit Guaranty Corporation and any entity succeeding
to any or all of its functions under ERISA;
"PENSION PLAN" means:
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(a) any plan, program, agreement or arrangement that is a pension plan for
the purposes of any federal or provincial pension benefit law or under
the INCOME TAX ACT (Canada) (whether or not registered under such law)
which is maintained or contributed to, or to which there is or may be
an obligation to contribute by any of the Borrowers in respect of its
employees in Canada; and
(b) a "PENSION PLAN", as such term is defined in Section 3(2) of ERISA,
which is subject to Title IV of ERISA (other than a multi-employer
plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrowers or any of the Subsidiaries or any corporation, trade or
business that is, along with the Borrowers, a member of a Controlled
Group, may have liability;
"PERMITTED ENCUMBRANCES" means any one or more of the following with respect to
the assets of Celestica or any Restricted Subsidiary:
(a) inchoate or statutory Liens for Taxes, assessments and other
governmental charges or levies which are not delinquent (taking into
account any relevant grace periods) or the validity of which are
currently being contested in good faith by appropriate proceedings and
in respect of which there shall have been set aside a provision or
reserve (to the extent required by GAAP) in an amount which is
adequate therefor;
(b) inchoate or statutory Liens of contractors, sub-contractors,
mechanics, workers, suppliers, materialmen, carriers and others in
respect of construction, maintenance, repair or operation of assets of
Celestica or the relevant Restricted Subsidiary, or otherwise arising
in the ordinary course provided that such Liens are related to
obligations not due or delinquent (taking into account any applicable
grace or cure periods), are not registered as encumbrances against
title to any of the assets of Celestica or the relevant Restricted
Subsidiary and adequate holdbacks are being maintained as required by
applicable legislation or such Liens are being contested in good faith
by appropriate proceedings and in respect of which there shall have
been set aside a provision or reserve (to the extent required by GAAP)
in an amount which is adequate with respect thereto and provided
further that such Liens do not, in the aggregate, materially detract
from the value of the assets of Celestica or any Material Restricted
Subsidiary encumbered thereby or materially interfere with the use
thereof in the operation of the business of Celestica or any Material
Restricted Subsidiary;
(c) easements, rights-of-way, servitudes, restrictions and similar rights
in real property comprised in the assets of Celestica or the relevant
Restricted Subsidiary or interests therein granted or reserved to
other persons, provided that such rights do not, in the aggregate,
materially detract from the value of the assets of Celestica or any
Material Restricted Subsidiary or materially interfere with the use
thereof in the operation of the business of Celestica or any Material
Restricted Subsidiary;
-19-
(d) title defects or irregularities which are of a minor nature and which
do not, in the aggregate, materially detract from the value of the
assets of Celestica or any Material Restricted Subsidiary or
materially interfere with the use thereof in the operation of the
business of Celestica or any Material Restricted Subsidiary;
(e) Liens incidental to the conduct of the business or the ownership of
the assets of Celestica or the relevant Restricted Subsidiary (other
than those described in Clauses (f) and (g) of this definition) which
were not incurred in connection with the borrowing of money or the
obtaining of advances of credit (including, without limitation, unpaid
purchase price), and which do not, in the aggregate, materially
detract from the value of the assets of Celestica or any Material
Restricted Subsidiary or materially interfere with the use thereof in
the operation of the business of Celestica or any Material Restricted
Subsidiary;
(f) Liens securing appeal bonds or other similar Liens arising in
connection with court proceedings (including, without limitation,
surety bonds, security for costs of litigation where required by law
and letters of credit) or any other instrument serving a similar
purpose;
(g) attachments, judgments and other similar Liens arising in connection
with court proceedings; provided, however, that such Liens are in
existence for less than 30 days after the entry thereof or the
execution or other enforcement of such Liens is effectively stayed and
the claims secured thereby are being actively contested in good faith
and by appropriate proceedings;
(h) Liens given to a public utility or any municipality or governmental or
other public authority when required by such utility or other
authority in connection with the operation of the business or the
ownership of the assets of Celestica or the relevant Restricted
Subsidiary, provided that such Liens do not have a Material Adverse
Effect;
(i) Purchase Money Obligations arising in the ordinary course of business,
provided that such Lien is limited to the property so acquired and is
created, issued or assumed substantially concurrently with the
acquisition of such property;
(j) the right reserved to or vested in any Official Body by any statutory
provision or by the terms of any lease, licence, franchise, grant or
permit of any of Celestica or the relevant Restricted Subsidiary, to
terminate any such lease, licence, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance
thereof;
(k) the interests of lessors (including without limitation, security
interests granted in favour of lessors) pursuant to all leases,
including Capital Leases and synthetic leases, under which Celestica
or the relevant Restricted Subsidiary is the lessee;
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(l) the extension, renewal or refinancing of any Permitted Encumbrance,
provided that the amount so secured does not exceed the original
amount secured immediately prior to such extension, renewal or
refinancing;
(m) Liens granted over the assets securitized in connection with any
Permitted Securitization Transaction;
(n) Liens granted by Celestica Corp. pursuant to and in accordance with
the Synthetic Lease provided that neither Celestica nor any other
Subsidiary other than Celestica, Celestica Corp. or Celestica
International has any liability in respect of such indebtedness;
(o) Liens granted by Celestica and/or any Restricted Subsidiary pursuant
to future subsidized financing by development entities on terms and
conditions satisfactory to the Administrative Agent and the Majority
Lenders;
(p) Liens granted to secure Acquired Indebtedness, to the extent that (i)
such Liens exist at the time such person or the assets subject to such
Lien are acquired by Celestica or a Restricted Subsidiary; (ii) such
Liens were not created in contemplation of the transaction by which
the subject Indebtedness became Acquired Indebtedness; and (iii) such
Liens either (A) only extend to the assets acquired or the assets of
the Person acquired, as applicable, in the transaction pursuant to
which the Acquired Indebtedness became an obligation of a Borrower or
a Restricted Subsidiary or (B) are discharged within 60 days of such
acquisition;
(q) Liens granted in respect of Shares of Unrestricted Subsidiaries;
(r) Liens of the nature contemplated in (b), (c), (d) or (e) above, but
exceeding the materiality thresholds specified therein, securing
indebtedness in the aggregate not greater than U.S.$ 50,000,000; and
(s) Liens granted by Celestica International in favour of Celestica in
connection with a Loan Agreement made as of November 4, 1996, as
amended, between Celestica International (under its former name
Celestica, Inc.) and 1201541 Ontario Inc. (a predecessor in interest
to Celestica);
"PERMITTED ENCUMBRANCE CERTIFICATE" means a certificate in the form of Schedule
Q;
"PERMITTED SECURITIZATION TRANSACTION" means any transaction providing for the
sale, securitization or other asset-backed financing (collectively,
"Securitization Transactions") of:
(i) trade accounts receivable of or owing to Celestica or any
Restricted Subsidiary (and/or contractual rights relating
thereto) having an aggregate book value on the date the relevant
Securitization Transaction is completed that does not exceed the
sum of (A) 30% of the aggregate book value of the trade accounts
receivable of or owing to Celestica and its Restricted
Subsidiaries determined on a consolidated
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basis, before giving effect to prior Securitization Transactions
of trade accounts receivable that have not been collected, on or
prior to the date on which the relevant Securitization
Transaction is completed, and (B), as long as there are no
Advances (other than Letters of Credit) outstanding under this
Agreement and no advances (other than letters of credit) under
any other credit agreement under which Celestica or any
Restricted Subsidiary is a borrower (excluding, for greater
certainty, overdraft facilities and Acquired Indebtedness), 50%
of the amount by which (1) the aggregate book value of the
inventory that is otherwise available for Securitization
Transactions involving inventory under (ii) below, exceeds (2)
the aggregate book value of all inventory that has been subject
to prior Securitization Transactions effected by Celestica and
its Restricted Subsidiaries; or
(ii) inventory of Celestica or any Restricted Subsidiary (and/or
contractual rights relating thereto) having an aggregate book
value on the date the relevant Securitization Transaction is
completed that does not exceed the sum of (A) 30% of the
aggregate book value of the inventory of Celestica and its
Restricted Subsidiaries determined on a consolidated basis,
before giving effect to prior Securitization Transactions of
inventory that has not been incorporated into product sold to a
third party, on or prior to the date on which the relevant
Securitization Transaction is completed, and (B), as long as
there are no Advances (other than Letters of Credit) outstanding
under this Agreement and no advances (other than letters of
credit) under any other credit agreement under which Celestica or
any Restricted Subsidiary is a borrower (excluding, for greater
certainty, overdraft facilities and Acquired Indebtedness), 50%
of the amount by which (1) the aggregate book value of the trade
accounts receivable of or owing to Celestica and its Restricted
Subsidiaries that are otherwise available for Securitization
Transactions of trade accounts receivable under (i) above,
exceeds (2) the aggregate book value of all trade accounts
receivable that have been subject to prior Securitization
Transactions effected by Celestica and its Restricted
Subsidiaries;
provided that the terms and conditions of all such Securitization
Transactions shall be on an Arms' Length basis and on commercially
reasonable and usual terms;
"PERMITTED SUBORDINATED INDEBTEDNESS" means all unsecured Indebtedness of
Celestica, which, in respect of principal, is subordinated in right of payment
to the payment in full in cash of all monetary Obligations and, in respect of
interest, is only so subordinated upon the occurrence and during the continuance
of a Default, in each case, on terms satisfactory to the Administrative Agent
and the Majority Lenders, the terms of which permit Celestica at Celestica's
sole option in all circumstances to satisfy such indebtedness by the issue of
Shares or other securities convertible in all circumstances at the sole option
of Celestica into Shares of Celestica;
"PERSON" means an individual, company, partnership (whether or not having
separate legal personality), corporation (including a business trust and a
Canadian chartered bank), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government, state or political
subdivision thereof or any agency of such government, state or political
subdivision;
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"POUNDS STERLING" and "(Pound)" means the lawful currency of the United Kingdom;
"PREDECESSOR CORPORATION" has the meaning described thereto in Section 13.12;
"PREDECESSOR GUARANTEE" has the meaning described thereto in Section 13.12;
"PRIME RATE" means the greater of (i) the variable rate of interest per annum,
expressed on the basis of a year of 365 or 366 days, as the case may be,
established or quoted from time to time by the Administrative Agent as the
reference rate of interest then in effect for determining interest rates on
Canadian Dollar denominated commercial loans made by it in Canada and (ii) the
sum of (x) the rate per annum for Canadian Dollar bankers' acceptances having a
term of 30 days that appears on the display page designated as the CDOR Page (or
any replacement page) by Reuters Money Market Service (or its successor) as of
10:00 a.m. on the date of determination as reported by the Administrative Agent,
and (y) 1/2 of 1% per annum;
"PRIME RATE ADVANCE" means a loan made by the Lenders to a Borrower in Canadian
Dollars on which interest is payable based on the Prime Rate plus the Applicable
Margin;
"PROPERTY" has the meaning ascribed thereto in Section 12.5;
"PURCHASE MONEY OBLIGATIONS" means any Lien created, issued or assumed by
Celestica or any Subsidiary to secure indebtedness assumed as part of, or issued
or incurred to pay or provide funds to pay, all or a part of the purchase price
of any property (other than the shares, stock or other securities of any
Subsidiary or of any corporation which becomes a Subsidiary upon such purchase,
except for an Unrestricted Subsidiary);
"REIMBURSEMENT OBLIGATION" has the meaning specified in Section 3.4;
"RELEASE" has the meaning specified in Section 8.1(h)(i);
"RESTRICTED SUBSIDIARY" means each and every Subsidiary of Celestica which is
not at the time an Unrestricted Subsidiary. For greater certainty, a Subsidiary
of an Unrestricted Subsidiary shall not be a Restricted Subsidiary;
"ROLLOVER" means a rollover of a LIBOR Advance or a Bankers' Acceptance pursuant
to and in accordance with Sections 2.12, 4.4 and 4.5;
"ROLLOVER NOTICE" means a notice substantially in the form of Schedule I;
"SCHEDULE I LENDERS" means Lenders which are Canadian chartered banks that are
listed on Schedule I to the BANK ACT (Canada);
"SCHEDULE I REFERENCE LENDERS" means, where there are three or fewer Lenders
which are Canadian chartered banks that are listed on Schedule I to the BANK ACT
(Canada), all such Lenders, and where there are more than three such Lenders,
three of such Lenders chosen by the Administrative Agent and identified by
written notice to Celestica; provided that if the Administrative Agent is also a
Lender, the Administrative Agent shall be one of the Lenders comprising the
Schedule I Reference Lenders;
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"SCOTIABANK" means The Bank of Nova Scotia, a Canadian chartered bank;
"SENIOR UNSECURED CREDIT AGREEMENT" means the Amended and Restated Senior Credit
Agreement dated as of June 8, 2001 among Celestica and the Subsidiaries of
Celestica designated therein, as borrowers, Scotiabank as Administrative Agent,
Canadian Facility Agent, U.S. Facility Agent and U.K. Facility Agent and the
Financial Institutions named therein as lenders as same may be amended,
restated, supplemented, extended or replaced from time to time;
"SHARES", as applied to the shares of any corporation or other entity, means the
shares or other ownership interests of every class whether now or hereafter
authorized, regardless of whether such shares or other ownership interests shall
be limited to a fixed sum or percentage with respect to the rights of the
holders thereof to participate in dividends and in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding-up of such
corporation or other entity;
"SPECIAL PURPOSE SUBSIDIARY" means any Subsidiary of Celestica which (a) is
formed for the purpose of effecting any Permitted Securitization Transaction and
engaging in other activities reasonably related thereto, and, where applicable,
(b) is structured as a "BANKRUPTCY-REMOTE SUBSIDIARY" in accordance with
customary practices in the asset-backed securitization market;
"SUBSIDIARY" means, with respect to any Person, any corporation, company or
other similar business entity (including, for greater certainty, a Canadian
chartered bank) of which more than fifty per cent (50%) of the outstanding
Shares or other equity interests (in the case of Persons other than
corporations) having ordinary voting power to elect a majority of the board of
directors or the equivalent thereof of such corporation, company or similar
business entity (irrespective of whether at the time Shares of any other class
or classes of the Shares of such corporation, company or similar business entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other Subsidiaries of
such Person;
"SUBSTITUTE LENDERS" has the meaning specified in Section 11.14;
"SUCCESSOR AGENT" has the meaning specified in Section 11.10;
"SUCCESSOR CORPORATION" has the meaning specified in Section13.12(a);
"SWING LINE ADVANCE" means an Advance made pursuant to the provisions of Section
2.22(a);
"SWING LINE LENDER" means Canadian Imperial Bank of Commerce or such other
Lender as may have agreed to act as a Swing Line Lender and to which Canadian
Imperial Bank of Commerce and Celestica may have agreed to acting as a Swing
Line Lender from time to time.
"SYNTHETIC LEASE" means the Master Lease and Open-end Mortgage dated as of
February 12, 1998 made between Celestica Corp. (under its former name, Celestica
Colorado, Inc.) and BMO Leasing (U.S.) Inc., as same may be amended, restated,
supplemented, extended or replaced from
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time to time, including, without limitation, the amendment dated December 31,
1998 pursuant to which Celestica Corp. (under its former name Celestica (USA),
Inc.) assumed the liabilities of Celestica Colorado, Inc. under such Master
Lease and Open-end Mortgage;
"TAKE-OVER BID" means an offer to acquire made by Celestica or any Restricted
Subsidiary, alone or acting jointly or in concert with any other Person or
Persons (collectively, the "OFFEROR") to any holder of Shares or securities
convertible, exchangeable or exercisable into Shares (the "TARGET SHARES") of
the offeree issuer, which has not been solicited by or made at the request of
the board of directors of the offeree issuer or with respect to which the board
of directors of the offeree issuer has not recommended acceptance, where the
Target Shares subject to the offer to acquire, together with the Target Shares
held by or on behalf of the offeror on the date of the offer, constitute, in
aggregate, 20% (or such lesser percentage as would require compliance with the
formal requirements governing take-over bids (such as the delivery of circulars
or equivalent disclosure documents to shareholders under Applicable Law)) or
more of the outstanding Target Shares at the date of the offer to acquire, but
excluding any such offer which, under the Applicable Law of the jurisdiction in
which such offer is made, would be exempt from such formal requirements;
"TAKE-OVER BID NOTICE" has the meaning specified in Section 2.3;
"TANGIBLE NET WORTH" of Celestica, on a consolidated basis, means, at any
particular time, without duplication, the sum, determined in accordance with
GAAP, of:
(a) capital stock;
(b) preferred stock;
(c) paid-in capital;
(d) retained earnings; and
(e) cumulative translation adjustment (whether positive or negative);
minus the sum of any amounts shown on account of any:
(f) patents, patent applications, service marks, industrial designs,
copyright and trade marks;
(g) goodwill and other intangibles; and
(h) any equity in, loan to or other investment or interest in an
Unrestricted Subsidiary whatsoever;
"TAXES" includes all present and future income, corporation, capital gains,
capital and value-added and goods and services taxes and all stamp, franchise
and other taxes and levies, imposts, deductions, duties, charges and
withholdings whatsoever together with interest thereon and penalties with
respect thereto, if any, and charges, fees and other amounts made on or in
respect thereof;
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"TORONTO OFFICE" means the office of the Administrative Agent located at ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile:
416-866-5991) or such other address as either of the Administrative Agent may
designate by notice to Celestica;
"TRANSFER NOTICE" means a notice substantially in the form of Schedule J;
"UNITED STATES DOLLARS" and "U.S.$" means the lawful currency of the United
States of America in immediately available funds; and
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of Celestica designated by
Celestica as such in accordance with Section 7.4 of this Agreement and any
Subsidiary of an Unrestricted Subsidiary.
1.2 HEADINGS
The division of this Agreement into Articles and Sections and the insertion of
an index and headings are for convenience of reference only and shall not affect
the construction or interpretation hereof. The terms "THIS AGREEMENT", "HEREOF",
"HEREUNDER" and similar expressions refer to this Agreement and not to any
particular Article, Section, paragraph or other portion hereof and include any
agreement supplemental hereto. Save as expressly provided herein, references
herein to Articles and Sections are to Articles and Sections of this Agreement.
1.3 USE OF DEFINED TERMS
Unless otherwise defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings when used in
each Drawdown Notice, Conversion Notice, Rollover Notice, Loan Document, notice
and other communication delivered from time to time in connection with this
Agreement or any other Loan Document.
1.4 EXTENDED MEANINGS
Words importing the singular number only shall include the plural and VICE
VERSA, and words importing any gender shall include all genders.
1.5 CROSS REFERENCES
Unless otherwise specified, references in this Agreement and in each other Loan
Document to any Article or Section are references to such Article or Section of
this Agreement or such other Loan Document, as the case may be, and unless
otherwise specified referenced in the Article, Section or definition to any
Clause are references to such Clause of such Article, Section or definition.
1.6 REFERENCE TO AGENTS OR LENDERS
Any reference in this Agreement to an Agent or a Lender shall be construed so as
to include its permitted successors, transferees or assigns hereunder in
accordance with their respective interests.
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1.7 ACCOUNTING TERMS
Unless otherwise specified, all accounting terms used herein or in any other
Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder shall be made, and all financial statements
required to be delivered hereunder or thereunder shall be prepared in accordance
with GAAP and all financial data submitted pursuant to this Agreement shall be
prepared in accordance with such principles, consistently applied; provided
that, if Celestica notifies the Administrative Agent that it wishes to amend any
covenant in Section 9.3 to eliminate the effect of any change in GAAP or any
change in the application of accounting policies on the operation of such
covenant (or the Administrative Agent notifies Celestica that the Majority
Lenders wish to amend Section 9.3 for such purpose), Celestica's compliance with
such covenant shall be determined on the basis of GAAP or accounting policies in
effect immediately before the relevant change in GAAP or change in accounting
policies became effective, until either such notices are withdrawn or such
covenant is amended in a manner satisfactory to Celestica, the Administrative
Agent and the Majority Lenders.
1.8 CONSOLIDATED FINANCIAL STATEMENTS AND CONSOLIDATED ACCOUNTS
Notwithstanding Section 1.7, wherever in this Agreement reference is made to a
consolidated financial statement of Celestica or to a determination to be made
on a consolidated basis, such reference shall be deemed to be to a consolidated
financial statement or consolidated basis, determined in accordance with GAAP,
which consolidates only the financial statements or accounts of Celestica and
its Subsidiaries, excluding all Unrestricted Subsidiaries, with investments by
Celestica or any Restricted Subsidiary in Unrestricted Subsidiaries accounted
for using equity accounting. At any time that Celestica and all Restricted
Subsidiaries have no Unrestricted Subsidiaries, all references to consolidated
financial statements herein shall be deemed to be references to the fully
consolidated financial statements of Celestica.
1.9 NON-BANKING DAYS
Except as otherwise specified herein, whenever any payment to be made hereunder
shall be stated to be due or any action to be taken hereunder shall be stated to
be required to be taken on a day other than a Banking Day, such payment shall be
made or such action shall be taken on the next succeeding Banking Day and, in
the case of the payment of any monetary amount, the extension of time shall be
included for the purposes of computation of interest or fees thereon.
1.10 REFERENCES TO TIME OF DAY
Except as otherwise specified herein, a time of day shall be construed as a
reference to Toronto, Canada time.
1.11 SEVERABILITY
In the event that one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect under any Applicable
Law, the validity, legality or enforceability of the remaining provisions hereof
shall not be affected or impaired thereby.
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1.12 CURRENCY
All monetary amounts in this Agreement refer to United States Dollars unless
otherwise specified.
1.13 REFERENCES TO STATUTES
Except as otherwise provided herein, any reference in this Agreement to a
statute shall be construed to be a reference to such statute as the same may
have been, or may from time to time be, amended, reformed or otherwise modified
or re-enacted from time to time.
1.14 REFERENCES TO AGREEMENTS
Except as otherwise provided herein, any reference herein to this Agreement, any
other Loan Document or any other agreement or document shall be construed to be
a reference to this Agreement, such Loan Document or such other agreement or
document, as the case may be, as the same may have been, or may from time to
time be, amended, restated, extended, supplemented or replaced.
1.15 CONSENTS AND APPROVALS
Whenever the consent in writing or approval in writing of a party hereto is
required in a particular circumstance, unless otherwise expressly provided for
therein, such consent or approval shall not be unreasonably withheld or delayed
by such party.
1.16 SCHEDULES
The following are the Schedules attached hereto and incorporated by reference
and deemed to be part hereof:
Schedule A - Lenders
Schedule B - Lenders' Commitments
Schedule C - Applicable Margin, Facility Fee, Utilization Fee
and LC Fee
Schedule D - Quarterly Certificate on Covenants
Schedule E - Conversion Notice
Schedule F - Designated Subsidiary Agreement
Schedule G - Drawdown Notice and Notice of Swing Line Borrowing
Schedule H - Guarantees
Schedule I - Rollover Notice
Schedule J - Transfer Notice
Schedule K - Issuance Request
Schedule L - Acceptance Note
Schedule M - Consent Lender Notice
Schedule N - Mandatory Cost Calculation
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Schedule O - Opinions of Counsel
Schedule P - Extension Request
Schedule Q - Permitted Encumbrance Certificate
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ARTICLE 2
THE FACILITY
2.1 ESTABLISHMENT OF THE FACILITY
Upon the terms and subject to the conditions hereof, each of the Lenders hereby
severally agrees to make its Global Rateable Portion of the Facility available
to the Borrowers as specified in Sections 2.2, 2.3 and 2.22.
2.2 PURPOSE, NATURE AND TERM OF THE FACILITY
(a) The Facility is being made available to the Borrowers by the Lenders
for the business and operations of the Borrowers and their respective
Restricted Subsidiaries, including, without limitation and for greater
certainty, to finance acquisitions of companies which, after the
acquisition thereof, will become Restricted Subsidiaries or assets
which, after the acquisition thereof, will be owned by Celestica or a
Restricted Subsidiary and for commercial paper support.
(b) Advances under the Facility shall not be used by any Borrower to
finance the acquisition of, investment in, loan to or to provide
working capital to an Unrestricted Subsidiary. Letters of Credit shall
not be available to support or secure any Indebtedness of an
Unrestricted Subsidiary, including, without limitation, a loan or
other advance to an Unrestricted Subsidiary.
(c) Subject to the terms and conditions of this Agreement (including,
without limitation, Section 2.8) the Facility shall be a revolving
credit facility and the Borrowers may borrow, repay and reborrow under
the Facility as they see fit at any time prior to the Conversion Date.
The Facility shall terminate on the Final Maturity Date.
2.3 AVAILABILITY OF ADVANCES
(a) The Facility shall be available for Drawdowns by the Borrowers, at the
option of the Borrowers, as follows:
(i) to Celestica or any Designated Subsidiary, Drawdowns from
Lenders, each in a minimum amount of Cdn.$ 5,000,000 and integral
multiples of Cdn.$ 100,000 in excess thereof, in Canadian Dollars
by way of Prime Rate Advances;
(ii) to Celestica or any Designated Subsidiary, Drawdowns from
Lenders, each in a minimum amount of Cdn.$ 5,000,000 and integral
multiples of Cdn.$ 100,000 in excess thereof, in Canadian Dollars
by way of Bankers' Acceptance Advances;
(iii) to Celestica or any Designated Subsidiary, Drawdowns from
Lenders, each in a minimum amount of U.S.$ 5,000,000 and integral
multiples of
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U.S.$ 100,000 in excess thereof, in United States Dollars by way
of Base Rate Canada Advances;
(iv) to Celestica or any Designated Subsidiary, Drawdowns from
Lenders, each in a minimum amount of U.S.$ 5,000,000 and integral
multiples of U.S.$ 100,000 in excess thereof, in United States
Dollars by way of LIBOR Advances; and
(v) to Celestica, Letters of Credit from the Issuing Bank on behalf
of the Lenders in, at the option of Celestica, Canadian Dollars,
United States Dollars or any Freely Tradeable European Currency,
in accordance with Article 3.
(b) Each Drawdown of an Advance pursuant to Section 2.3(a)(i) to (iv)
shall be made by irrevocable Drawdown Notice, which Drawdown Notice
shall be given by each Borrower to the Administrative Agent, not later
than (x) 10:00 a.m. Toronto, Canada time on the Banking Day prior to
the relevant Drawdown Date in the case of Prime Rate Advances,
Bankers' Acceptance Advances, and Base Rate Canada Advances, and
(y) 10:00 a.m. London, England time and 10:00 a.m. New York, New York
time on the third Banking Day prior to the relevant Drawdown Date in
the case of a LIBOR Advance in United States Dollars.
(c) The Borrowers shall have the right to convert one currency into
another as they see fit, but subject to the terms of this Agreement,
including, without limitation, those provisions set out in items (i)
to (iv) of subsection (a) above if the Conversion relates to an
Advance other than a Swing Line Advance, providing for the manner in
which the Facility is available to each Borrower. A Borrower may not
make a Drawdown under the Facility if, as a result of such Drawdown,
the sum of (i) the Equivalent Amount, expressed in United States
Dollars, of the aggregate principal amount of all Prime Rate Advances
and Acceptance Notes outstanding under the Facility, plus (ii) the
Equivalent Amount, expressed in United States Dollars, of the
aggregate Face Amount of all Bankers' Acceptances outstanding under
the Facility, plus (iii) the Equivalent Amount, expressed in United
States Dollars, of the maximum amount which may be drawn under all
Letters of Credit outstanding under the Facility, plus (iv) the
aggregate principal amount of all Base Rate Canada Advances
outstanding under the Facility, plus (iv) the aggregate principal
amount of all LIBOR Advances outstanding under the Facility
(collectively, the "OUTSTANDING AMOUNT") would exceed the aggregate of
all Commitments of the Lenders at such time (or such lesser amount as
may be available following a cancellation in part of the Facility
pursuant to Section 2.7).
(d) If a Borrower wishes to make a Drawdown under the Facility for the
purpose of financing a Take-over Bid, such Borrower shall deliver to
the Administrative Agent a written notice (a "TAKE-OVER BID NOTICE")
thereof at least ten (10) Banking Days prior to the day on which it
gives to the Administrative Agent a Drawdown Notice requesting such
Drawdown. Such Take-over Bid Notice shall include the details of such
Take-over Bid. As soon as possible, but in any event
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within five (5) Banking Days of the giving of the Take-over Bid
Notice, each Lender shall, acting reasonably and in good faith,
determine whether or not it wishes to fund its Main Facility Rateable
Portion of such Drawdown. Notwithstanding any other provisions hereof,
if any Lender determines that it does not wish to fund its Main
Facility Rateable Portion of such Drawdown, such Lender shall not be
required to fund its Main Facility Rateable Portion of such Drawdown
and the Drawdown shall be reduced accordingly.
(e) This Section 2.3 shall not apply to Swing Line Advances.
2.4 LENDERS' OBLIGATIONS
(a) The obligations of the Lenders hereunder are several and not joint.
(b) Save as otherwise specifically provided herein, each Lender shall
participate in each Advance (other than, for certainty, any Swing Line
Advance) referred to in the applicable provisions of Section 2.3 in
accordance with its Main Facility Rateable Portion.
(c) The failure of any Lender to make available its share of any Advance
required to be made by it under this Agreement shall not relieve any
other Lender of its obligation to make available its share of any
Advance required to be made under this Agreement.
2.5 REPAYMENT OF ADVANCES BY FORMER DESIGNATED SUBSIDIARIES
Provided that the Facility is not earlier accelerated in accordance with Article
10, a Subsidiary which is no longer a Designated Subsidiary by virtue of the
delivery of a notice in writing to the Administrative Agent to that effect by
Celestica in accordance with Section 7.1(d) of this Agreement shall repay to the
Administrative Agent the principal amount of Advances made by the Lenders to
such Subsidiary, together with all accrued and unpaid interest thereon, on the
day which is five (5) Banking Days after the date of delivery of such notice by
Celestica to the Administrative Agent in accordance with Section 7.1(d) of this
Agreement.
2.6 REPAYMENT OF FACILITY
(a) In the event that, at any time, the Outstanding Amount exceeds the
maximum amount allowed pursuant to Section 2.3 due to changes in
exchange rates, then Celestica shall forthwith repay to the
Administrative Agent or cause another Borrower to forthwith repay to
the Administrative Agent that portion of the Outstanding Amount which
is in excess of the maximum amount allowed pursuant to Section 2.3;
provided, however, that unless the Outstanding Amount exceeds One
Hundred and Five Per Cent (105%) of the aggregate Commitments under
the Facility, there shall be no such obligation to make a repayment
hereunder until the next following Interest Payment Date, Drawdown
Date, date of Rollover or date of Conversion (whichever is the first
to occur following receipt of written notice of determination of such
Outstanding Amount by the
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Administrative Agent to Celestica) and provided further that if such
repayment would result in the repayment of a Bankers' Acceptance
Advance prior to its maturity date or the repayment of an Acceptance
Note or a LIBOR Advance prior to the last day of its Interest Period,
Celestica may, or may cause another Borrower to, at its option and in
lieu of repayment of such Advances, deposit with the Administrative
Agent cash collateral in an amount equal to the required repayment
amount to be held by the Administrative Agent for distribution to the
Lenders as repayment of a Bankers' Acceptance Advance on its maturity
date (or the last day of its then current Interest Period in the case
of an Acceptance Note) or repayment of an Acceptance Note or a LIBOR
Advance on the last day of its then current Interest Period, as the
case may be.
(b) Provided that the Facility is not prepaid or accelerated in accordance
with Article 10, each Borrower shall repay the principal amount of all
Advances made to it outstanding under the Facility, together with
accrued and unpaid interest thereon, on the Final Maturity Date to the
Administrative Agent and, in the event that the expiry date of any
Letter of Credit is after the Final Maturity Date, Celestica shall
deposit with the Administrative Agent, on behalf of the Issuing Bank,
an amount equal to the undrawn Face Amount of any such issued and
outstanding Letter of Credit. Such amount shall be held by the
Administrative Agent in an interest-bearing account and shall be
applied to satisfy Celestica's obligations pursuant to Section 3.4 in
the event that the Issuing Bank is called upon by a beneficiary to
honour a Letter of Credit. Following the expiry of all such Letters of
Credit, the Administrative Agent shall pay to Celestica the amounts so
deposited, together with any interest accrued thereon less any amount
paid by the Administrative Agent to the Issuing Bank.
(c) All repayments of the Facility by the Borrowers shall be in a minimum
amount equal to the minimum amount of a Drawdown of each type of
Advance set out in Section 2.3 and amounts in excess thereof in
integral multiples of U.S.$ 100,000, or the Equivalent Amounts thereof
in the currency in which each Advance is denominated except in the
event of a Rollover of an Advance into a lesser amount than the
Advance then outstanding or a repayment pursuant to paragraphs (a) and
(b) of Section 2.6 which may be in any amount. Repayments of any
Advance outstanding under the Facility shall be made in the currency
in which such Advance is denominated.
2.7 PAYMENTS/CANCELLATION OR REDUCTION
Celestica may at any time, including, without limitation, during the period
between the Conversion Date and the Final Maturity Date, upon giving at least
three (3) Banking Days' prior notice to the Administrative Agent, repay, or
cause another Borrower to repay and, in each case, cancel, any drawn portion of
the Facility or cancel in full or, from time to time, in part, any undrawn
portion of the Facility; provided, however, that:
(a) if any such repayment relates to Bankers' Acceptances, Acceptance
Notes or Letters of Credit, which have not matured, the Borrower to
which such Advance
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was made shall, at such time, deposit in a cash collateral account
opened and maintained by the Administrative Agent such amount as may
be required to yield an amount equal to the aggregate undiscounted
Face Amount of such instruments on the maturity dates thereof;
(b) in the event that any such repayment relates to a LIBOR Advance other
than on the scheduled last day of the applicable Interest Period, the
Borrower to which such Advance was made shall contemporaneously pay to
the Administrative Agent all applicable breakage costs, being any loss
or expense incurred by the Lenders by reason of the resulting
liquidation or re-employment of deposits of funds;
(c) any such reduction shall be in a minimum amount of U.S.$ 5,000,000 and
cancellations in excess thereof shall be in increments of U.S.$
100,000;
(d) any cancellation shall reduce the Commitment of each Lender on a PRO
RATA basis having regard to the Commitment of each Lender; and
(e) any such cancellation shall permanently reduce the Facility and may
not be reinstated.
2.8 FINAL MATURITY DATE; EXTENSION OF CONVERSION DATE
(a) FINAL MATURITY DATE. Subject to Section 2.7, this Section 2.8, Section
10.2 and Section 10.5, the Facility shall be available until the Final
Maturity Date. Notwithstanding the termination of availability of the
Facility, until all of the Obligations (other than contingent
indemnity obligations) of the Borrowers shall have been fully and
indefeasibly paid and satisfied and all financing arrangements among
the Borrowers and the Lenders with respect to the Obligations shall
have been cancelled or terminated, all of the rights and remedies
under this Agreement and the other Loan Documents shall survive.
(b) EXTENSION OF CONVERSION DATE. Not more than 90 days nor less than 60
days before the then effective Conversion Date, Celestica may request,
by delivery of an Extension Request (which shall include the consent
of all Guarantors) to the Administrative Agent, that the Conversion
Date be extended for an additional period of 364 days. Within 5 days
after receipt of such Extension Request, the Administrative Agent
shall notify each Lender of the Extension Request by Celestica and
provide each Lender with a copy of such Extension Request. Within 25
days after Celestica has delivered such Extension Request, each Lender
shall give the Administrative Agent notice in writing of its decision
to agree to so extend or to deny the requested extension (and the
failure to provide such notice shall be deemed to be a decision to
deny the requested extension). Within 5 days following the aforesaid
25 day period, the Administrative Agent shall give written notice to
Celestica and the Lenders advising as to those Lenders who have agreed
to the requested extension (for purposes of this Section 2.8, the
"APPROVING LENDERS") and those Lenders who have not agreed to or who
have been deemed
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to have not agreed to the requested extension (for purposes of this
Section 2.8, the "DISSENTING LENDERS").
(i) If all Lenders approve the requested extension, the Facility
shall be extended for a further 364 days and the Conversion Date
shall be the date that is 364 days from the date that had been
the Conversion Date.
(ii) If Lenders having Commitments equal to at least 66 2/3% but
less than 100% of the Commitments approve the requested extension
then an Approving Lender, at its option, may acquire all or any
portion of the rights and obligations of the Dissenting Lenders
under the Facility by giving written notice to the Administrative
Agent of the portion of the rights and obligations of the
Dissenting Lenders which such Approving Lender is prepared to
acquire. Such notice shall be given within 10 days following
receipt of the notice from the Administrative Agent advising as
to the Approving Lenders and the Dissenting Lenders pursuant to
Section 2.8(b). If more than one Approving Lender gives notice to
the Administrative Agent that it wishes to acquire all or a
portion of the rights and obligations of the Dissenting Lenders
under the Facility, then each Approving Lender shall, subject to
Section 2.8(b)((iii) be entitled to acquire its pro rata share of
the rights and obligations of the Dissenting Lenders under the
Facility. For the purpose of this Section 2.8(b)(ii), the
Approving Lenders' pro rata shares shall be determined based on
the Commitments (before acquisition under this Section
2.8(b)(ii)) of each of the Approving Lenders wishing to acquire a
portion of the rights and obligations of the Dissenting Lenders
under the Facility. The Administrative Agent shall give written
notice to Celestica within five days following the expiry of the
time for Approving Lenders to give notice of acquisition pursuant
to this Section 2.8(b)(ii), of the Commitments of the Dissenting
Lenders so acquired.
(iii) If one or more of the Approving Lenders (for purposes of this
Section 2.8(b)(iii), the "ACQUIRING LENDERS") has given notice to
the Administrative Agent that it wishes to acquire all or a
portion of the rights and obligations of the Dissenting Lenders
under the Facility pursuant to Section 2.8(b)(ii), then,
concurrently with the notice given to Celestica pursuant to
Section 2.8(b)(ii), the Administrative Agent shall give notice to
each of the Acquiring Lenders setting out the Commitments of and
the amount of the outstanding Advances made by the Dissenting
Lenders to be acquired by each of the Acquiring Lenders in
accordance with Section 2.8(b)(ii) and of the date (for purposes
of this Section 2.8(b)(iii), the "ACQUISITION DATE") on which the
acquisition shall be effective. The Acquisition Date shall be the
tenth day following the date of the notice given pursuant to this
Section 2.8(b)(iii). At or before 11:00 a.m. (Toronto, Canada
time) on the Acquisition Date, each Acquiring Lender shall
deposit with or transfer to the Administrative Agent for the
account
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of the Dissenting Lenders an amount equal to the amount of the
outstanding credit to be acquired by it pursuant to this Section
2.8(b)(iii). Upon receipt of such amounts, the Administrative
Agent shall (i) disburse such amounts to each of the Dissenting
Lenders in accordance with their respective entitlement thereto
against delivery of forms of Transfer Notice executed by each of
the Dissenting Lenders; and (ii) make appropriate entries in the
books of account regarding the Facility. The provisions of
Section 13.11(b), (c) and (d) shall apply mutatis mutandis to any
acquisition pursuant to this Section 2.8(b)(iii). Each
acquisition of the outstanding Advances of a Dissenting Lender by
an Acquiring Lender shall be subject to the prior consent of
Celestica, which consent shall not be unreasonably withheld or
delayed, provided that it shall not be unreasonable for Celestica
to withhold its consent if such acquisition gives rise to a claim
for increased costs pursuant to Article 5 or any obligation on
the part of an Obligor to deduct or withhold any Taxes from or in
respect of any sum payable under this Agreement, in excess of
what would have been the case without such acquisition, but it
shall be unreasonable for Celestica to withhold its consent if
such Acquiring Lender waives the rights to any benefits under
Section 5.7 in respect of the Advances purchased by it pursuant
to this clause (iii).
(iv) If Lenders having Commitments equal to at least 66 2/3% but less
than 100% of the Commitments approve the requested extension and
if the Acquiring Lenders have not acquired all of the rights and
obligations of the Dissenting Lenders pursuant to Section
2.8(b)(iii), then Celestica may, at its option, either (A) locate
one or more other financial institutions (for purposes of this
Section 2.8(b)(iv), "ALTERNATE LENDERS"), satisfactory to the
Administrative Agent acting reasonably, to become Lenders and to
acquire all or a pro rata share of the rights and obligations of
the Dissenting Lenders under the Facility which have not been
acquired by the Acquiring Lenders or (B) repay to the
Administrative Agent on behalf of such Dissenting Lenders all of
the outstanding Advances which have been advanced by such
Dissenting Lenders and all accrued and unpaid interest and fees
thereon without any repayment to any other Lenders. For the
purpose of this Section 2.8(b)(iv), the Alternate Lenders' pro
rata shares shall be determined based on the Commitments of each
of the Alternate Lenders wishing to acquire a portion of the
rights and obligations of the Dissenting Lenders under the
Facility. If all of the rights and obligations of the Dissenting
Lenders have not been acquired by Acquiring Lenders or Alternate
Lenders or both or if all of the credit outstanding hereunder
which has been extended by such Dissenting Lenders and all
accrued and unpaid interest and fees thereon have not been repaid
as aforesaid on or before the then current Conversion Date, there
shall be no extension of the then current Conversion Date and
Section 2.8(b)(v) shall apply. If (A) all of the rights and
obligations of the Dissenting Lenders have been acquired by
Acquiring Lenders and/or Alternate Lenders and/or (B) if all of
the
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Advances outstanding hereunder which have been advanced by such
Dissenting Lenders and all accrued and unpaid interest and fees
thereon have been repaid as aforesaid on or before the then
current Conversion Date, the Facility shall be extended for a
further 364 days and the Conversion Date shall be the date that
is 364 days from the date that had been the Conversion Date.
(v) If Lenders having Commitments of less than 66 2/3% of the
Commitments under the Facility approve the requested extension,
the amount of the Facility shall be permanently reduced on the
Conversion Date to the aggregate of the Advances outstanding on
the Conversion Date under the Facility, there shall be no further
extension of the Conversion Date and the Final Maturity Date
shall be the date which is one year from the then effective
Conversion Date, provided that the Facility shall, as at the then
effective Conversion Date, cease to be revolving in nature.
A Dissenting Lender shall remain committed to make Advances under the Facility
until the earlier of the date on which the Obligations owing to it are assigned
or repaid as aforesaid and the Final Maturity Date as determined in accordance
with Section 2.8(b)(v).
2.9 INTEREST ON PRIME RATE ADVANCES
Interest on each Prime Rate Advance shall accrue at a rate per annum equal to
the Prime Rate in effect from time to time during the period of time that the
Prime Rate Advance is outstanding plus the Applicable Margin. Such interest
shall be payable to the Administrative Agent at its Toronto Office in Canadian
Dollars on a quarterly basis in arrears on the last Banking Day of each of
March, June, September and December (each herein referred to as an "INTEREST
PAYMENT DATE") in each year for the period from and including the Drawdown Date
for such Advance (or, if applicable, the date on which such Advance was
converted into a Prime Rate Advance) or the preceding Interest Payment Date for
such Prime Rate Advance, as the case may be, to and including the day preceding
such Interest Payment Date and shall be calculated on the principal amount of
the Prime Rate Advance from time to time outstanding during such period and on
the basis of the actual number of days elapsed in a year of 365 or 366 days (in
the case of an Interest Payment Date occurring in a leap year). Changes in the
Prime Rate shall cause an automatic and immediate adjustment of the interest
rate payable on Prime Rate Advances without the necessity of any notice to the
Borrowers.
2.10 INTEREST ON BASE RATE CANADA ADVANCES
Interest on each Base Rate Canada Advance shall accrue at a rate per annum equal
to the Base Rate Canada in effect from time to time during the period of time
that the Base Rate Canada Advance is outstanding plus the Applicable Margin.
Such interest shall be payable to the Administrative Agent at its Toronto Office
in United States Dollars quarterly in arrears on each Interest Payment Date in
each year for the period from and including the Drawdown Date for such Advance
(or, if applicable, the date on which such Advance was converted into a Base
Rate Canada Advance) or the preceding Interest Payment Date for such Base Rate
Canada Advance, as the case may be, to and including the day preceding such
Interest Payment Date and shall be
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calculated on the principal amount of the Base Rate Canada Advance from time to
time outstanding during such period and on the basis of the actual number of
days elapsed and the number of days deemed to be included in a year by the
definition of the rate used to set Base Rate Canada. Changes in the Base Rate
Canada shall cause an automatic and immediate adjustment of the interest rate
payable on Base Rate Canada Advances without the necessity of any notice to the
Borrowers.
2.11 [INTENTIONALLY DELETED]
2.12 LIBOR ADVANCES
(a) LIBOR Advances shall be available for Drawdown, Conversion or Rollover
in United States Dollars in minimum principal amounts of U.S.$
5,000,000 and integral multiples of U.S.$ 100,000 in excess thereof.
Each Drawdown Notice shall specify the applicable Interest Period for
the LIBOR Advance. The duration of each such Interest Period shall be
for a period of approximately one, two, three or six months, as the
Borrower requesting such Drawdown, Conversion or Rollover may select
in the applicable Drawdown Notice, Conversion Notice or Rollover
Notice. No LIBOR Advance may have an Interest Period ending after the
Final Maturity Date. 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 next calendar month, in which case such Interest Period
shall be shortened to end on the immediately preceding Banking Day.
(b) If a Lender determines that deposits of the necessary amount in the
requested currency for the applicable Interest Period are not
available in the London interbank market or if for any other reason
the Administrative Agent, acting reasonably, is unable to determine
the applicable LIBO Rate, then the relevant LIBOR Advance will not be
made, and the Administrative Agent will discuss with such Borrower the
particular circumstances and implications of such event. In the event
that such determination is made by the Administrative Agent in the
case of a proposed Rollover of an existing LIBOR Advance or a proposed
Conversion of another type of Advance into a LIBOR Advance, the
proposed LIBOR Advance will automatically be deemed to be a Base Rate
Canada Advance.
(c) Interest on any LIBOR Advance shall be calculated at a rate per annum
equal to the LIBO Rate plus the Applicable Margin, plus any applicable
Mandatory Cost then in effect, shall accrue from day to day and shall
be calculated on the basis of the actual number of days elapsed
(including the first day of each Interest Period but excluding the
last day thereof) and divided by 360 or by 365 where market practice
so requires. Interest on any LIBOR Advance shall be payable to the
Administrative Agent in United States Dollars in arrears on the last
day of the Interest Period relating thereto; provided, however, that
if the Interest Period is for a term of more than three months,
interest shall be payable on the last Banking
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Day of the first three-month period and on the last Banking Day of
each three-month period thereafter, as well as on the last day of the
Interest Period.
(d) [INTENTIONALLY DELETED]
(e) If a LIBOR Advance to a Borrower is neither repaid on the last day of
an Interest Period nor converted into another type of Advance on such
date pursuant to Section 2.15, and if the Administrative Agent has not
received a Rollover Notice or a Conversion Notice specifying the term
of the next Interest Period for such LIBOR Advance at or before 10:00
a.m. (local time in Toronto, Canada) on the third Banking Day prior to
the last day of the then current Interest Period, then the outstanding
LIBOR Advance shall be deemed to be converted, by way of Conversion on
the last day of the then current Interest Period, into a Base Rate
Canada Advance.
(f) [INTENTIONALLY DELETED]
(g) Except as otherwise provided herein, LIBOR Advances shall not be
repaid, prepaid or converted into another type of Advance except on
the last day of any Interest Period relating thereto.
2.13 METHOD AND PLACE OF PAYMENT
(a) Each payment to be made by a Borrower under this Agreement shall be
made without deduction, set-off or counterclaim.
(b) Except as provided in Section 4.2 with respect to Acceptance Fees and
Section 3.8 with respect to fees for Letters of Credit, all payments
of principal, interest and fees hereunder shall be made for value at
or before 12:00 noon (local time in Toronto, Canada) on the day such
amount is due by deposit or transfer thereof to the account of the
Administrative Agent maintained at its Toronto Office. Payments
received after such time shall be deemed to have been made on the next
following Banking Day.
(c) Subject to Section 11.16, each Lender shall be entitled to its Main
Facility Rateable Portion of each repayment or prepayment of
principal of a Prime Rate Advance (other than a Swing Line
Advance), Acceptance Note, Base Rate Canada Advance (other than a
Swing Line Advance) or payment of the Face Amount of Bankers'
Acceptances made to Celestica or a Canadian Designated Subsidiary.
(d) Notwithstanding Section 2.12(c), in the event that a Borrower is
required to pay Additional Compensation to a Lender, such Borrower
may prepay all or any portion of the Advances made by such Lender
to such Borrower, without any obligation to prepay any portion of
the Advances made by other Lenders to whom the Borrower is not
required to pay Additional Compensation; provided, however,
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that any prepayment of a Bankers' Acceptance Advance or LIBOR
Advance shall be subject to the provisions of Section 12.2.
2.14 FEES
(a) During the period commencing on the date hereof and ending on the
Final Maturity Date (the "RELEVANT PERIOD"), Celestica on behalf of
itself and the other Borrowers shall pay to the Administrative Agent
for the account of the Lenders a fee (the "FACILITY FEE") calculated
at the rate per annum set forth in Schedule C on the aggregate
Commitments (after giving effect to any cancellation and reduction
pursuant to Sections 2.7 and 2.8) hereunder during the relevant period
from day to day which fee shall be payable quarterly in arrears.
(b) During the relevant period, Celestica on behalf of itself and the
other Borrowers shall pay to the Administrative Agent for the account
of the Lenders a fee (the "UTILIZATION FEE") calculated at the rate
per annum set forth in Schedule C on the aggregate principal amount of
all outstanding Advances hereunder for each day during the relevant
period on which the aggregate principal amount of all outstanding
Advances exceed 33.333% of the aggregate Commitments (after giving
effect to any increase, cancellation or reduction pursuant to Sections
2.3, 2.7, 2.8 and 2.23) hereunder, which fee shall be payable
quarterly in arrears.
2.15 CONVERSION OPTIONS
Subject to the provisions of this Agreement (including, without limitation,
Section 4.5), provided that no Event of Default has occurred and is continuing,
a Borrower may convert any type of Advance outstanding under the Facility as
follows:
(a) provided that the relevant Borrower thereunder is Celestica or a
Canadian Designated Subsidiary, a Prime Rate Advance or a portion
thereof into a Bankers' Acceptance Advance by giving the
Administrative Agent a Conversion Notice no later than 10:00 a.m. one
(1) Banking Day prior to the date of the proposed Conversion;
(b) provided that the relevant Borrower thereunder is Celestica or a
Canadian Designated Subsidiary, the Face Amount of a Bankers'
Acceptance or the principal amount of any Acceptance Notes, as
applicable, or a portion thereof into a Prime Rate Advance on the
maturity date of the Bankers' Acceptance or the last day of the then
current Interest Period of such Acceptance Note by giving the
Administrative Agent a Conversion Notice no later than 10:00 a.m. one
(1) Banking Day prior to the date of the proposed Conversion;
(c) a Base Rate Canada Advance or a portion thereof into a LIBOR Advance
by giving the Administrative Agent a Conversion Notice no later than
10:00 a.m. three (3) Banking Days prior to the date of the proposed
Conversion; and
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(d) a LIBOR Advance or a portion thereof into a Base Rate Canada Advance
on the last day of the Interest Period of the relevant LIBOR Advance
by giving the Administrative Agent a Conversion Notice no later than
10:00 a.m. one (1) Banking Day prior to the date of the proposed
Conversion.
An Advance may not be converted into an Advance denominated in a currency other
than the currency in which the original Advance was made; however, an Advance
denominated in one currency may be repaid concurrently with the Drawdown of an
Advance denominated in another currency.
2.16 EXECUTION OF NOTICES
All Drawdown Notices, Conversion Notices, Rollover Notices and notices of
repayment or cancellation and, unless otherwise provided herein, all other
notices, requests, demands or other communications to be given to the
Administrative Agent by a Borrower hereunder shall be executed by any one
officer or director of the Borrower making each such Drawdown Notice, Conversion
Notice, Rollover Notice or notice of repayment or cancellation.
2.17 EVIDENCE OF INDEBTEDNESS
The Administrative Agent shall open and maintain in accordance with its usual
practice books of account evidencing all Advances and all other amounts owing by
the Borrowers to the Administrative Agent and the Lenders hereunder. The
Administrative Agent shall also enter in the foregoing accounts details of every
Letter of Credit issued on behalf of Celestica, details of every Drawdown Date
in respect of each Advance and all amounts from time to time owing or paid by a
Borrower to the Administrative Agent for its own account or for the account of
the Lenders hereunder, the amounts of principal, interest and fees payable from
time to time hereunder and the unused portion of each Lenders' Commitment
available to be drawn down by the Borrowers or in respect of which Advances may
be made in connection with reimbursement of the Issuing Bank pursuant to calls
on a Letter of Credit. The information entered in the foregoing accounts shall
constitute, in the absence of manifest error, PRIMA FACIE evidence of the
obligations of the Borrowers to the Administrative Agent and the Lenders
hereunder, the date the Lenders made each Advance available to the Borrowers,
the date the Issuing Bank issued or was called to honour a Letter of Credit and
the amounts the Borrowers have paid from time to time on account of the
principal of and interest on the Advances.
2.18 INTEREST ON UNPAID COSTS AND EXPENSES
Unless the payment of interest is otherwise specifically provided for herein,
where a Borrower fails to pay any amount required to be paid by a Borrower
hereunder when due, having received notice that such amount is due, such
Borrower shall pay interest to the Administrative Agent on such unpaid amount,
including overdue interest from the time such amount is due until paid at an
annual rate equal to the sum of (i) 2%, plus (ii) the Prime Rate, in the case of
overdue amounts payable in Canadian Dollars, or the Base Rate Canada, in the
case of overdue amounts payable in United States Dollars. Such interest shall be
determined daily, compounded quarterly in arrears on each Interest Payment Date
in each year and payable on demand.
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2.19 CRIMINAL RATE OF INTEREST
Notwithstanding the foregoing provisions of this Article 2, the Borrowers shall
in no event be obliged to make any payments of interest or other amounts payable
to the Lenders hereunder in excess of an amount or rate which would be
prohibited by law or would result in the receipt by the Lenders of interest at a
criminal rate (as such terms are construed under the CRIMINAL CODE (Canada)).
2.20 COMPLIANCE WITH THE INTEREST ACT (CANADA)
For the purposes of this Agreement, whenever any interest is calculated on the
basis of a period of time other than a calendar year, the annual rate of
interest to which each rate of interest determined pursuant to such calculation
is equivalent for the purposes of the INTEREST ACT (Canada) is such rate as so
determined multiplied by the actual number of days in the calendar year in which
the same is to be ascertained and divided by the number of days used in the
basis of such determination.
2.21 NOMINAL RATE OF INTEREST
The parties acknowledge and agree that all calculations of interest under the
Loan Documents are to be made on the basis of the nominal interest rate
described herein and not on the basis of effective yearly rates or on any other
basis which gives effect to the principle of deemed reinvestment of interest.
The parties acknowledge that there is a material difference between the stated
nominal interest rates and the effective yearly rates of interest and that they
are capable of making the calculations required to determine such effective
yearly rates of interest.
2.22 SWING LINE FACILITY
(a) SWING LINE ADVANCES. Subject to subsections (b) and (k), the Swing
Line Lender hereby agrees, on the terms and conditions set forth in
this Agreement, to make Swing Line Advances in Canadian Dollars or
United States Dollars to Celestica or any Canadian Designated
Subsidiary from time to time from the date hereof to the Conversion
Date but in any event not later than the Conversion Date.
(b) LIMITATION ON SWING LINE ADVANCES. No Swing Line Advance shall be made
by the Swing Line Lender if:
(i) the sum of (A) the amount of such Swing Line Advance and (B) the
aggregate principal amount of all Swing Line Advances outstanding
on such day exceeds the Available Swing Line Commitment; or
(ii) immediately after such Swing Line Advance is made, the aggregate
outstanding principal amount of all Advances exceeds the
aggregate Commitments.
(c) AMOUNT OF EACH SWING LINE ADVANCE. Each Swing Line Advance in Canadian
Dollars and each Swing Line Advance in United States Dollars shall be
in an
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aggregate principal amount of Cdn.$ 1,000,000 or U.S.$ 1,000,000, as
the case may be, or any integral multiple thereof.
(d) INTEREST RATES. Each Swing Line Advance shall bear interest on the
outstanding principal amount thereof, for each day from the date such
Swing Line Advance is made until it becomes due, at a rate per annum
equal to, in the case of Swing Line Advances in Canadian Dollars, the
Prime Rate plus the Applicable Margin, and, in the case of Swing Line
Advances in United States Dollars, the Base Rate Canada plus the
Applicable Margin.
(e) PROCEDURE FOR REQUESTING SWING LINE ADVANCES. The relevant Borrower
shall give to the Administrative Agent telephonic notice no later than
10:00 a.m. (local time) on the date of each Swing Line Advance
specifying (i) the date of such Swing Line Advance, which shall be a
Banking Day in Toronto, Canada; and (ii) the currency and amount of
such Swing Line Advance. Such telephonic notice shall be followed by
delivery by the relevant Borrower by no later than 3:00 p.m. local
time on the same day of a Notice of Swing Line Borrowing. Promptly
after receiving such Notice of Swing Line Borrowing, the
Administrative Agent shall notify the relevant Swing Line Lender of
the contents thereof and such Notice of Swing Line Borrowing shall not
thereafter be revocable by such Borrower.
(f) FUNDING OF SWING LINE ADVANCES. On the date of each Swing Line
Advance, the Swing Line Lender shall make available such Swing Line
Advance no later than 12:00 noon, Toronto, Canada time.
(g) OPTIONAL PREPAYMENT OF SWING LINE ADVANCES. Any Borrower may prepay
its Swing Line Advance in whole at any time or from time to time in
part in a minimum principal amount of Cdn.$ 1,000,000 or U.S.$
1,000,000, as the case may be, or any integral multiple thereof, by
giving notice of such prepayment to the Administrative Agent not later
than 10:00 a.m. Toronto, Canada time on the date of prepayment and
paying the principal amount to be prepaid (together with interest
accrued thereon to the date of prepayment) to the Administrative Agent
for the account of the Swing Line Lender.
(h) MATURITY OF SWING LINE ADVANCES. Any Swing Line Advance outstanding on
the seventh day after such Swing Line Advance, if not repaid by such
Borrower on such seventh day, shall convert to, in the case of a Swing
Line Advance in Canadian Dollars, a Prime Rate Advance or, in a case
of a Swing Line Advance in United States Dollars, a Base Rate Canada
Advance, as the case may be. If, prior to the seventh day after such
Swing Line Advance was made, the Administrative Agent declares the
Advances to be immediately due and payable or the Commitments
automatically terminate, each as set out in Section 10.2, such Swing
Line Advance shall be due and payable on the date of such declaration
by the Administrative Agent or automatic termination.
(i) REFUNDING UNPAID SWING LINE ADVANCES. If any Swing Line Advance is
converted, pursuant to subsection (h), to another form of Advance, the
Swing
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Line Lender shall forthwith notify the Administrative Agent and the
Administrative Agent shall, by notice to the Lenders (including
the Swing Line Lender in its capacity as Lender), require the Lenders
to pay to the Administrative Agent, for the account of the Swing Line
Lender, their Main Facility Rateable Portion of the aggregate amount
of such other form of Advance. Such other form of Advance shall
constitute, in the case of a Swing Line Advance in Canadian Dollars, a
Prime Rate Advance and, in the case of a Swing Line Advance in United
States Dollars, a Base Rate Canada Advance, provided that if the
Lenders are prevented from making such Advances by provisions of
applicable bankruptcy laws or otherwise, the amount so paid by each
Lender shall constitute a purchase by it of a participation in the
unpaid principal amount of such converted Swing Line Advances. Any
such notice to the Lenders shall specify the date on which such
payments are to be made by them. No later than 12:00 noon Toronto,
Canada time on the date so specified each Lender shall pay the amount
so notified to it in immediately available funds to the Administrative
Agent for the account of the Swing Line Lender. Each Lender's
obligations to make payments for the account of the Swing Line Lender
under this subsection shall be absolute and unconditional and shall
not be affected by any circumstance provided that no Lender shall be
obligated to make any payment to the Administrative Agent under this
Section with respect to a Swing Line Advance made by the Swing Line
Lender at a time when such Swing Line Lender had received written
notice from Celestica or the Administrative Agent that a Default had
occurred and was continuing.
(j) INCREASING OR DECREASING AVAILABLE SWING LINE COMMITMENT. At any time
and from time to time, Celestica may, by written notice to the
Administrative Agent, increase or decrease the Available Swing Line
Commitment, provided that the Available Swing Line Commitment shall at
no time exceed U.S.$ 25,000,000 less the amount, if any, that the
Commitment of the Swing Line Lender has been reduced pursuant to
Section 2.7 or be less than zero.
(k) TAKE-OVER BIDS. If a Borrower wishes to make a Drawdown of a Swing
Line Advance for the purpose of financing a Take-over Bid, such
Borrower shall deliver to the Swing Line Lender a Take-over Bid Notice
at least ten (10) Banking Days prior to the day on which it gives to
the Swing Line Lender a telephonic notice or Notice of Swing Line
Borrowing requesting such Drawdown. Such Take-over Bid Notice shall
include the details of such Take-over Bid. As soon as possible, but in
any event within five (5) Banking Days of the giving of the Take-over
Bid Notice, the Swing Line Lender shall, acting reasonably and in good
faith, determine whether or not it wishes to fund such Swing Line
Advance. Notwithstanding any other provisions hereof, if the Swing
Line Lender determines that it does not wish to fund such Swing Line
Advance, the Swing Line Lender shall not be required to fund such
Swing Line Advance.
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2.23 INCREASE IN AGGREGATE COMMITMENT AMOUNT TO U.S.$ 500,000,000
(a) Notwithstanding any other provision of this Agreement, each of the
parties hereto agree that Celestica may, from time to time and at any
time, give notice to the Administrative Agent that one or more
financial institutions (each an "ADDITIONAL LENDER") have agreed to
make commitments (each an "ADDITIONAL COMMITMENT") hereunder
(provided, however, that Celestica shall not be entitled to give such
notice at any time at which the aggregate Commitments is equal to
U.S.$ 500,000,000 (or such lesser amount as may be available following
a cancellation in part of the Facility pursuant to Section 2.7)). Upon
receipt of such written notice, each party hereto hereby irrevocably
authorizes the Administrative Agent to:
(i) insert the name of the Additional Lender that will become a
Lender on Schedule A;
(ii) amend Schedule B to reflect the Additional Commitment of the
Additional Lender;
(iii) affix signature pages of the Additional Lender to this
Agreement; and
(iv) if Advances (other than Swing Line Advances) are outstanding at
the time such notice is given, then the Additional Lender shall
make available to the Administrative Agent an amount equal to its
Main Facility Rateable Portion (calculated as if the Additional
Commitment were a Commitment) of such Advances and the
Administrative Agent shall make available to each Lender that
Lender's Main Facility Rateable Portion (calculated without
reference to the Additional Commitment) of such amount,
whereupon each of the Borrowers, the Administrative Agent, each Lender
and the Additional Lender shall acquire the same rights and assume the
same obligations between themselves as they would have acquired and
assumed had such Additional Lender been original parties hereto as
Lenders.
(b) Each of the parties hereto agrees that it will promptly execute and
deliver all such documents, including, without limitation, all such
additional conveyances, transfers and consents and other assurances,
and do all such other acts and things as may from time to time be
desirable in order to better evidence or give effect to this Section
2.23.
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ARTICLE 3
LETTERS OF CREDIT
3.1 ISSUANCE REQUEST
By delivering to the Administrative Agent and the Issuing Bank an Issuance
Request at or before 12:00 noon, Toronto, Canada time, Celestica may request,
from time to time prior to the Conversion Date and on not less than three nor
more than ten Banking Days' notice, that the Issuing Bank issue an irrevocable
standby letter of credit or letter of guarantee in such form as may be requested
by Celestica and approved by the Issuing Bank (each a "LETTER OF CREDIT") in
support of financial obligations of a Restricted Subsidiary incurred in such
Restricted Subsidiary's ordinary course of business and which are described in
such Issuance Request, provided that, if the form of the letter of credit
requested by such Borrower is in a language other than English, Celestica shall
provide to the Administrative Agent and the Issuing Bank not less than ten nor
more than twenty Banking Days notice. Upon receipt of an Issuance Request, the
Administrative Agent shall, within twenty (20) days of the receipt thereof,
notify the Lenders thereof. Each Letter of Credit shall, by its terms:
(a) be issued in a Face Amount which when aggregated with the Face Amounts
of all other outstanding Letters of Credit does not exceed (or would
not, upon its issuance, exceed) the then Letter of Credit
Availability;
(b) be stated to expire on a date (its "STATED EXPIRY DATE") not later
than the earlier of two years from its date of issuance and the Final
Maturity Date; and
(c) on or prior to its Stated Expiry Date:
(i) terminate immediately upon notice to the Issuing Bank thereof
from the beneficiary thereunder that all obligations covered
thereby have been terminated, paid or otherwise satisfied in
full, and
(ii) reduce, in part, immediately and to the extent that the
beneficiary thereunder has notified the Issuing Bank thereof that
the obligations covered thereby have been paid or otherwise
satisfied in part.
Celestica may request Letters of Credit to be denominated in Canadian Dollars,
in United States Dollars, in Pounds Sterling or in such Freely Tradeable
European Currency (other than Pounds Sterling) as the Issuing Bank, in its sole
and absolute discretion, may agree. The provisions of Section 6.1 (with the
exception of 6.1(h)) shall apply to Letters of Credit issued contemporaneously
on the first Drawdown Date and, thereafter, Section 6.2 (with the exception of
Section 6.2(a)) shall apply at the time of issuance of any Letter of Credit as
if such issuance were a Drawdown.
3.2 ISSUANCES
On the terms and subject to the conditions of this Agreement, the Issuing Bank
shall issue Letters of Credit in accordance with the Issuance Requests made
therefor. The Issuing Bank will make
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available the original of each Letter of Credit which it issues in accordance
with the Issuance Request therefor to the beneficiary thereof. The Issuing Bank
shall notify the Administrative Agent of each issuance of or amendment to any
Letter of Credit on the day upon which such issuance or amendment occurs and
will promptly provide each of the Administrative Agent and the Lenders with a
copy of such Letter of Credit or amendment thereof.
3.3 OTHER LENDERS' PARTICIPATION
Each Letter of Credit issued pursuant to Section 3.2 shall, effective upon its
issuance and without further action, be issued on behalf of all Lenders
(including the Issuing Bank) in their respective Main Facility Rateable
Portions. Each Lender shall, to the extent of its Main Facility Rateable
Portion, be deemed irrevocably to have participated in the issuance of the
Letter of Credit and shall be deemed to have purchased from the Issuing Bank an
interest in each Letter of Credit equal to its Main Facility Rateable Portion of
the Face Amount of each Letter of Credit; provided, however, that in the event
that any Letter of Credit is denominated in a currency other than United States
Dollars, each of the Lenders, other than the Issuing Bank, shall be deemed to
have purchased from the Issuing Bank an interest in each Letter of Credit equal
to its Main Facility Rateable Portion of the Equivalent Amount, expressed in
United States Dollars and determined on the date of issuance, of the Letter of
Credit. Each Lender shall be responsible to reimburse promptly the Issuing Bank
for Reimbursement Obligations which have not been reimbursed by Celestica in
accordance with Section 3.4 or which have been reimbursed by Celestica but must
be returned, restored or disgorged by the Issuing Bank for any reason and each
Lender shall, to the extent of its Main Facility Rateable Portion, be entitled
to receive from the Administrative Agent its Main Facility Rateable Portion of
the LC Fee received by the Administrative Agent with respect to each Letter of
Credit. In the event that Celestica shall fail to reimburse the Issuing Bank or
if for any reason Advances shall not be made to fund any Reimbursement
Obligation, all as provided in Section 3.4 and in an amount equal to the amount
of any drawing on or by the Issuing Bank under a Letter of Credit, or in the
event the Issuing Bank must, for any reason, return, restore or disgorge such
reimbursement, the Issuing Bank shall promptly notify each Lender of the
unreimbursed amount of such drawing and such Lender's respective Main Facility
Rateable Portion of the Face Amount of such Letter of Credit. Each Lender shall
make available to the Issuing Bank, whether or not any Default shall have
occurred and be continuing, an amount equal to its respective Main Facility
Rateable Portion of the Face Amount of such Letter of Credit in same day or
immediately available funds at the office of the Issuing Bank specified in such
notice not later than 10:00 a.m. local time on the Banking Day after the date
notified by the Issuing Bank. In the event that any Lender fails to make
available to the Issuing Bank the amount of such Lender's participation in such
Letter of Credit as provided herein, the Issuing Bank shall be entitled to
recover such amount on demand from such Lender together with interest at a daily
rate consistent with market practice. Nothing in this Section shall be deemed to
prejudice the right of any Lender to recover from the Issuing Bank any amounts
made available by such Lender to the Issuing Bank pursuant to this Section in
the event that it is determined by a court of competent jurisdiction that the
payment with respect to such Letter of Credit by the Issuing Bank in respect of
which payment was made by such Lender constituted gross negligence or wilful
misconduct on the part of the Issuing Bank. The Issuing Bank shall distribute to
each other Lender which has paid all amounts payable by it under this Section
with respect to any Letter of Credit issued by the Issuing Bank such other
Lender's
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Main Facility Rateable Portion of all payments received by the Issuing Bank from
Celestica in reimbursement of drawings honoured by the Issuing Bank under such
Letter of Credit when such payments are received.
3.4 REIMBURSEMENT
The Issuing Bank will notify Celestica and the Administrative Agent promptly
following the presentment for payment of any drawing under a Letter of Credit
which notice shall include the date (a "DISBURSEMENT DATE") such payment shall
be made. Subject to the terms and provisions of such Letter of Credit, the
Issuing Bank shall make such payment to the beneficiary (or its designee) of
such Letter of Credit (each, a "DISBURSEMENT"). Unless Celestica has made
alternative arrangements with the Issuing Bank with respect to payment to the
Administrative Agent of an amount sufficient to permit the Issuing Bank to
discharge its obligations under the Letter of Credit together with that amount
equal to any and all charges and expenses which the Issuing Bank may pay or
incur in respect to such Letter of Credit, at or prior to 12:00 noon, Toronto,
Canada time on the Disbursement Date, Celestica will reimburse the Issuing Bank
for all amounts disbursed under the Letter of Credit together with that amount
equal to any and all charges and expenses which the Issuing Bank may pay or
incur in respect of such drawing under such Letter of Credit, failing which any
such payment so payable shall be deemed to be (i) a Drawdown of a Prime Rate
Advance if payment under such Letter of Credit was made in Canadian Dollars;
(ii) a Drawdown of a Base Rate Canada Advance if payment under such Letter of
Credit was made in United States Dollars; or (iii) a Drawdown of a Base Rate
Canada Advance in the Equivalent Amount in United States Dollars on the date of
such disbursement of the aggregate of the amount so disbursed and all such
charges and expenses if payment under such Letter of Credit was made in a Freely
Tradeable European Currency; provided that the provisions of Section 6.2
regarding conditions for subsequent Drawdowns and the provisions of Section 11.2
relieving Lenders of the obligation to make further Advances shall not apply to
such Advances. In the event that any amount so payable by the Issuing Bank
exceeds the amount available to be drawn down by Celestica under the Facility,
then forthwith upon receipt of such notice, Celestica shall provide to the
Issuing Bank an amount equal to such excess amount. Celestica's obligation (a
"REIMBURSEMENT OBLIGATION") to reimburse the Issuing Bank with respect to each
Disbursement, and each Lender's obligation to make participation payments in
each drawing which has not been reimbursed by Celestica, shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim, or defence to payment which Celestica may have or have had against
any Lender or any beneficiary of a Letter of Credit, including any defence based
upon the occurrence of any Default, any draft, demand or certificate or other
document presented under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient, the failure of any Disbursement to conform to the terms
of the applicable Letter of Credit (if, in the Issuing Bank's good faith
opinion, such Disbursement is determined to be appropriate) or any
non-application or misapplication by the beneficiary of the proceeds of such
Disbursement, or the legality, validity, form, regularity, or enforceability of
such Letter of Credit; provided, however, that nothing herein shall adversely
affect the right of Celestica to commence any proceeding against the Issuing
Bank for any wrongful Disbursement made by the Issuing Bank under a Letter of
Credit as a result of gross negligence or wilful misconduct on the part of the
Issuing Bank.
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3.5 DEEMED DISBURSEMENTS
Upon the declaration by the Administrative Agent that all Advances are
immediately due and payable or are due and payable on demand pursuant to Section
10.2 or the occurrence of the Final Maturity Date, an amount equal to any
portion of an outstanding and undrawn Letter of Credit shall, at the election of
the Issuing Bank acting on instructions from the Majority Lenders, and without
demand upon or notice to Celestica, be deemed to have been paid or disbursed by
the Issuing Bank under such Letter of Credit (notwithstanding that such amount
may not in fact have been so paid or disbursed), and, upon notification by the
Issuing Bank to the Administrative Agent and Celestica of its obligations under
this Section, Celestica shall be immediately obligated to reimburse the Issuing
Bank for the amount deemed to have been so paid or disbursed by the Issuing
Bank. Any amounts so received by the Issuing Bank from Celestica pursuant to
this Section shall be held as collateral security for the repayment of
Celestica's obligations in connection with the Letters of Credit issued by the
Issuing Bank. At any time when such Letters of Credit shall terminate pursuant
to Section 3.1(c)(i) or be reduced pursuant to Section 3.1(c)(ii) the
obligations of Celestica under this Section shall be reduced accordingly
(subject, however, to reinstatement in the event any payment in respect of such
Letters of Credit is recovered in any manner from the Issuing Bank), and the
Issuing Bank will return to Celestica the amount, if any, by which (i) the
amount deposited by Celestica with the Issuing Bank; exceeds (ii) the amount
applied by the Issuing Bank to any Reimbursement Obligation of Celestica less
the amount of all Reimbursement Obligations of Celestica.
If, pursuant to Section 10.2, the Administrative Agent withdraws its declaration
that all Advances are immediately due and payable or are due and payable on
demand, or at such time when all Events of Default shall have been cured or
waived, the Issuing Bank shall return to Celestica all amounts then on deposit
with such Issuing Bank pursuant to this Section 3.5.
3.6 NATURE OF REIMBURSEMENT OBLIGATIONS
Celestica shall assume all risks of the acts, omissions, or misuse of any Letter
of Credit it has requested by the beneficiary thereof. Neither the Issuing Bank
nor any Lender (except to the extent of its own gross negligence or wilful
misconduct) shall be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any Letter of Credit or any document submitted by any party
in connection with the application for or issuance of a Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness, or legal
effect of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof in whole or in part, which may prove to
be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions required in
order to demand payment under a Letter of Credit;
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(d) errors, omissions, interruptions, or delays in transmission or
delivery of any messages, by mail, telecopier, or otherwise; or
(e) any loss or delay in the transmission or otherwise of any document or
draft required in order to make a Disbursement under a Letter of
Credit or of the proceeds thereof.
None of the foregoing shall affect, impair, or prevent the vesting of any of the
rights or powers granted to the Issuing Bank or any Lender hereunder. Any action
taken or omitted to be taken by the Issuing Bank in good faith shall be binding
upon Celestica and shall not subject the Issuing Bank to any resulting liability
to Celestica.
3.7 INDEMNITY FOR COSTS
Celestica shall indemnify the Issuing Bank against any and all costs, damages,
expenses, taxes (other than taxes on overall net income, assets or capital),
claims and demands which the Issuing Bank may incur or sustain by reason of or
arising in any way whatsoever in connection with the operating, establishing or
paying of the amounts payable under the Letter of Credit or arising in
connection with any amounts payable by the Issuing Bank thereunder.
3.8 FEES
(a) At the time of issuance of a Letter of Credit, Celestica shall pay to
the Administrative Agent, for the account of the Issuing Bank, an
issuing fee in an amount equal to the product of (i) the maximum
amount payable under the Letter of Credit, (ii) 0.1%, and (iii) a
fraction, the numerator of which is the number of days in the term of
the Letter of Credit and the denominator of which is 365 (or 366 in
the case of a leap year).
(b) At the time of issuance of a Letter of Credit and, if applicable, on
the date one year from the date of issuance of each Letter of Credit
which has a term longer than one year, Celestica shall pay to the
Administrative Agent for the accounts of the Lenders, an annual fee in
an amount equal to the product of (i) the maximum amount payable under
the Letter of Credit, (ii) the LC Fee, and (iii) a fraction, the
numerator of which is the number of days in the term of the Letter of
Credit to elapse in that calendar year from the date of issuance and
the denominator of which is 365 (or 366 in the case of a leap year).
(c) Celestica shall pay to the Administrative Agent, for the account of
the Issuing Bank, an amendment fee in United States Dollars in respect
of each amendment to any Letter of Credit in such amount as is usual
and customary for the Issuing Bank to charge its customers, and such
fee shall be payable by Celestica to the Administrative Agent, for the
account of the Issuing Bank, at the time of request for such
amendment.
(d) In the event that the currency in which a Letter of Credit is
expressed to be drawn is a currency other than United States Dollars
or Canadian Dollars, for the
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purposes of assessing the fees payable under this Section 3.8, the
maximum amount payable under the Letter of Credit shall be deemed to
be the Equivalent Amount in United States Dollars of such other
currency on the date on which such fee is to be assessed.
3.9 ISSUING BANK
The Issuing Bank shall be Scotiabank or such other Lender as Celestica may
designate and such Lender may agree from time to time.
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ARTICLE 4
BANKERS' ACCEPTANCES AND ACCEPTANCE NOTES
4.1 FUNDING OF BANKERS' ACCEPTANCES
If the Administrative Agent receives from Celestica or a Canadian Designated
Subsidiary a Drawdown Notice or a Rollover Notice or a Conversion Notice
requesting an Advance or a Rollover or a Conversion into a Bankers' Acceptance
Advance, the Administrative Agent shall notify each of the Lenders, prior to
11:30 a.m. (Toronto, Canada time) on the first Banking Day prior to the date of
such Advance, of such request and each Lender's Main Facility Rateable Portion
of such Advance except that, if the Face Amount of a draft which would otherwise
be accepted by a Lender would not be Cdn.$ 100,000, or an integral multiple
thereof, such Face Amount shall be increased or reduced by the Administrative
Agent in its sole and unfettered discretion to the nearest integral multiple of
Cdn.$ 100,000. Each Lender shall, not later than 11:30 a.m. (Toronto, Canada
time) on the date of each Advance by way of Bankers' Acceptance under the
Facility (whether in respect of a Drawdown or pursuant to a Rollover or
Conversion), accept drafts of such Borrower who has delivered such Drawdown
Notice, Rollover Notice or Conversion Notice which are presented to it for
acceptance and which have an aggregate face amount equal to such Lender's Main
Facility Rateable Portion of the total Advance being made by way of Bankers'
Acceptances on such date. With respect to each Drawdown of or Rollover of or
Conversion into Bankers' Acceptances, each Lender shall not be required to
accept any draft which has a face amount which is not an integral multiple of
Cdn.$ 100,000. Subject to this Section and Section 2.3, each Lender shall
purchase its Main Facility Rateable Portion of any Bankers' Acceptances.
Concurrently with the acceptance of drafts of such Borrower as aforesaid, each
Lender shall make available to the Administrative Agent its Main Facility
Rateable Portion of the Notional BA Proceeds with respect to such Advance. The
Administrative Agent shall, upon fulfilment by such Borrower of the conditions
set out in Section 6.1 or Section 6.2, as applicable, make such Notional BA
Proceeds available to such Borrower on the date of such Advance by crediting the
Designated Account of such Borrower.
4.2 ACCEPTANCE FEES
With respect to each draft of Celestica or a Canadian Designated Subsidiary
accepted pursuant hereto, such Borrower shall pay to the Administrative Agent
for the account of the Lenders, as the case may be, in advance, an acceptance
fee calculated at the rate per annum, on the basis of a year of 365 days or 366
days in the case of a leap year, equal to the Applicable Margin pertaining to
the Canadian BA Rate on the Face Amount of such Bankers' Acceptance or the
principal amount of an Acceptance Note, as applicable for its term, being the
actual number of days in the period commencing on the date of acceptance of such
Borrower's draft or the date of such Acceptance Note and ending on but excluding
the maturity date of the Bankers' Acceptance or Acceptance Note. Such acceptance
fees shall be non-refundable and shall be fully earned when due or the last day
of the Interest Period of the Acceptance Note, as applicable. Such acceptance
fees shall be paid by the Borrower whose draft has been accepted by the
Administrative Agent deducting the amount thereof on behalf of the Lenders from
what would otherwise be Notional BA Proceeds funded pursuant to Section 4.1.
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4.3 SAFEKEEPING OF DRAFTS
The Lenders agree that, in respect of the safekeeping of executed drafts of
Celestica or any Canadian Designated Subsidiary which are delivered to them for
acceptance hereunder, they shall exercise the same degree of care which the
Lenders give to their own property, provided that the Lenders shall not deemed
to be insurers thereof.
4.4 TERM AND INTEREST PERIODS
The term of any Bankers' Acceptance shall be specified in the draft and in the
Drawdown Notice, Conversion Notice or Rollover Notice related thereto and the
Interest Period for any Acceptance Note shall be specified in the Drawdown
Notice, Conversion Notice or Rollover Notice related thereto and the term of any
Bankers' Acceptance and the Interest Period of an Acceptance Note shall be for
periods of approximately 30, 60, 90 or 180 days, unless otherwise agreed to by
the Administrative Agent. The term of each Bankers' Acceptance shall mature, and
the Interest Period of an Acceptance Note shall end, on a Banking Day. Each
Borrower who delivers a Drawdown Notice, Rollover Notice or Conversion Notice
shall ensure that no Bankers' Acceptance issued pursuant thereto shall have a
maturity date after the Final Maturity Date and that no Acceptance Note issued
pursuant thereto shall have an Interest Period ending after the Final Maturity
Date.
4.5 PAYMENT ON MATURITY
A Borrower which has received a Bankers' Acceptance Advance shall pay to the
Administrative Agent, for the account of the Lenders, on the maturity date of
such Bankers' Acceptance and the last day of the Interest Period of an
Acceptance Note an amount equal to the Face Amount of such maturing Bankers'
Acceptance or the principal amount of such Acceptance Note, as the case may be;
provided that such Borrower may, at its option, so reimburse the Lenders, in
whole or in part, by delivering to the Administrative Agent no later than 10:00
a.m. two (2) Banking Days prior to the maturity date of a maturing Bankers'
Acceptance or the last day of the Interest Period of an Acceptance Note, as the
case may be, a Rollover Notice specifying the term of the Bankers' Acceptances
or the next Interest Period for such Acceptance Note, as the case may be, and
presenting drafts or Acceptance Notes to the Lenders for acceptance and purchase
having, in the case of reimbursement in whole by replacement Bankers'
Acceptances or Acceptance Notes, an aggregate Face Amount equal to the Face
Amount of the maturing Bankers' Acceptances or principal amount of the
Acceptance Notes. In the event that a Borrower fails to deliver a Conversion
Notice or Rollover Notice and fails to make payment to the Administrative Agent
in respect of the maturing Bankers' Acceptance Advance, the Face Amount of the
maturing Bankers' Acceptances and the principal amount of the Acceptance Notes
forming part of such Bankers' Acceptance Advance shall be deemed to be converted
to a Prime Rate Advance on the relevant maturity date.
4.6 WAIVER OF DAYS OF GRACE
Each of Celestica and any Canadian Designated Subsidiary Borrower renounces and
shall not claim any days of grace for the payment of any Bankers' Acceptance or
Acceptance Notes.
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4.7 SPECIAL PROVISIONS RELATING TO ACCEPTANCE NOTES
(a) Each Borrower and each Lender hereby acknowledges and agrees that from
time to time certain Lenders which are Non-Schedule I Lenders may not
be authorized to or may, as a matter of general corporate policy,
elect not to accept or purchase Bankers' Acceptance drafts, and the
Borrowers and each Lender agree that any such Lender may purchase
Acceptance Notes of any of Celestica or any Canadian Designated
Subsidiary in accordance with the provisions of Section 4.7(b) in lieu
of creating Bankers' Acceptances for its account.
(b) In the event that any Lender described in Section 4.7(a) above is
unable to, or elects as a matter of general corporate policy not to,
accept or purchase Bankers' Acceptances hereunder, such Lender shall
not be required to accept or purchase Bankers' Acceptances hereunder,
but rather, if Celestica or any Canadian Designated Subsidiary
requests the acceptance of such Bankers' Acceptances, that Borrower
shall deliver to such Lender an Acceptance Note or Acceptance Notes of
such Borrower having the same maturity as the Bankers' Acceptances to
be accepted and in an aggregate principal amount equal to the face
amount of such Bankers' Acceptances. Each such Lender hereby agrees to
purchase Acceptance Notes from such Borrower at a purchase price equal
to the Notional BA Proceeds which would have been applicable if a
Bankers' Acceptance draft had been accepted by it and such Acceptance
Notes shall be governed by the provisions of this Article 4 as if they
were Bankers' Acceptances.
4.8 NO MARKET
If the Administrative Agent determines in good faith and notifies Celestica in
writing that, by reason of circumstances affecting the Canadian money market,
there is no market for Bankers' Acceptances, then the right of Celestica or any
Canadian Designated Subsidiary to request Bankers' Acceptance Advances shall be
suspended until the Administrative Agent, acting reasonably, determines that the
circumstances causing such suspension no longer exists and the Administrative
Agent so notifies Celestica. In such circumstances, any Drawdown Notice for a
Bankers' Acceptance Advance which is outstanding shall be cancelled and the
Drawdown requested therein shall, at the option of Celestica or any Canadian
Designated Subsidiary delivering such Drawdown Notice, either not be made or be
made as a Prime Rate Advance.
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ARTICLE 5
CHANGE OF CIRCUMSTANCES
AND INDEMNIFICATION
5.1 [INTENTIONALLY DELETED]
5.2 [INTENTIONALLY DELETED]
5.3 LENDER REPRESENTATION
Each Lender represents to each of Celestica and each Designated Subsidiary and
the Administrative Agent that it is resident in Canada for the purposes of the
INCOME TAX ACT (Canada) and that it is beneficially entitled to the principal,
interest and fees payable to it under the Loan Documents. The foregoing
representation shall be true and correct and shall be deemed to be given by each
Lender on each day that a payment of interest, principal or fees is to be made
to it pursuant to a Loan Document.
5.4 [INTENTIONALLY DELETED]
5.5 INCREASED COSTS
In the event of (i) any Applicable Law coming into force after the date hereof,
(ii) any change in any Applicable Law, or in the interpretation or application
thereof by any court or by any governmental, regulatory, other authority or
central bank charged with the administration thereof, or (iii) compliance by any
Lender with any direction, request or requirement (whether or not having the
force of law but, if not having the force of law, one with which a responsible
bank acting reasonably would comply) of any government, monetary authority,
central bank or comparable agency (each such event being hereinafter referred to
as a "CHANGE IN LAW") which now or hereafter:
(a) subjects a Lender to any Tax or changes the basis of taxation, or
increases any existing Tax (in each case, except for the coming into
force of any Tax or change in the basis of taxation in respect of or
the change in the rate of Tax charged on net income as a whole, on
franchises or capital applicable to the relevant jurisdictions of the
Lender), on payments of principal, interest or other amounts payable
by the Borrowers to such Lender under any Loan Document or on or by
reference to the amount of any Advances made or to be made by any
Lender hereunder or on or by reference to the Commitment of any
Lender, or
(b) imposes, modifies or deems applicable any reserve, deposit, ratio or
similar requirements or otherwise imposes any cost on any Lender in
funding or maintaining all or any of the Advances or its Commitment
(including, without limitation, any such requirement imposed by the
Board of Governors of the United States Federal Reserve System or by
the Bank of England or The Financial Services Authority), or
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(c) has the effect of increasing the amount of overall capital
required to be maintained by a Lender, taking into account the
existence of such Lender's participation in any Advance or any
of its obligations under any Loan Document (including, without
limitation, all or any part of its Commitment),
and the result of any of the foregoing is to increase the cost to a Lender,
reduce the income receivable by it or reduce the effective return on the capital
of such Lender in respect of any Advances and/or its Commitment to an extent
which such Lender believes to be material (after consultation with Celestica),
the Lender shall give notice thereof to the Administrative Agent and the
Administrative Agent shall give notice thereof to the Borrowers (herein called a
"NOTICE OF AMOUNT") stating the event by reason of which it believes it is
entitled to Additional Compensation, such cost and/or such reduction in such
return (or such proportion of such reduction as is, in the reasonable and BONA
FIDE opinion of such Lender, attributable to its obligations hereunder), the
amount of such Additional Compensation (as hereinafter defined) incurred by such
Lender and supplying reasonable supporting evidence (including, in the event of
change of Applicable Law, a photocopy of the Applicable Law evidencing such
change together with a certificate of a duly authorized officer of the Lender
setting forth the Additional Compensation and the basis for calculation of such
Additional Compensation and an opinion in writing of such Lender's counsel
confirming such change); provided that the Lender shall not be required to
disclose any information required to be kept confidential by Applicable Law (in
which case the requirement of such confidentiality shall be supported by an
opinion of such Lender's Counsel) within ten (10) Banking Days of the date of
receipt of any Notice of Amount, the amount set out therein (in this Article 5
referred to as "ADDITIONAL COMPENSATION") shall be paid to the Lender by
Celestica (if applicable, on behalf of the relevant Designated Subsidiary) to
the Lender. In the event such Lender subsequently recovers all or part of the
Additional Compensation paid by the Borrowers, it shall repay an equal amount to
such Borrowers.
5.6 ILLEGALITY
If, with respect to any Lender, the implementation of any existing provision of
Applicable Law or the adoption of any Applicable Law, or any change therein or
in the interpretation or application thereof by any court or by any statutory
board or commission now or hereafter makes it unlawful for such Lender to make,
fund or maintain all or any portion of an outstanding Advance, to maintain all
or any part of its Commitment hereunder or to give effect to its obligations in
respect of all or any portion of an outstanding Advance, such Lender may, by
written notice thereof to the Borrowers and the other Lenders through the
Administrative Agent (supported, at the request and expense of the Borrowers, by
an opinion of such Lender's counsel), declare the obligations of such Lender
under this Agreement to be terminated whereupon the same shall forthwith
terminate, and the Borrowers to whom such Lender has made Advances shall repay
within the time required by such law (or as promptly as practicable if already
unlawful or at the end of such longer period, if any, as such Lender in its BONA
FIDE opinion may agree) the principal of the Advances made by such Lender. If
any such change shall affect only that portion of such Lender's obligations
under this Agreement that is, in the BONA FIDE opinion of such Lender, severable
from the remainder of this Agreement so that the remainder of this Agreement may
be continued in full force and effect without otherwise
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affecting any of the obligations of such Lender or the Borrowers hereunder, such
Lender shall declare its obligations under only that portion so terminated.
5.7 MITIGATION
(a) If, in respect of any Lender, circumstances arise which would result,
upon the giving of notice, in:
(i) Additional Compensation being paid by a Borrower to a Lender
under Section 5.5; or
(ii) a reduction of all or any of an Advance by such Lender or the
Lender's Commitment pursuant to Section 5.6; or
(iii) the prepayment of the portion of the Advances outstanding to it
pursuant to Section 5.6; or
(iv) the payment of any amount by an Obligor under Section 5.8;
then such Lender, promptly upon becoming aware of the same and the
possible results thereof, shall notify the Administrative Agent
thereof and the Administrative Agent shall notify the Borrowers
thereof and, in consultation with the Borrowers shall take such steps,
if any, as such Lender in its BONA FIDE opinion considers appropriate
to mitigate the effects of such circumstances. Without limiting the
generality of the foregoing, if it is commercially reasonable, such
Lender shall make reasonable efforts to limit the incidence of any
such Additional Compensation and seek recovery for the account of the
Borrowers upon the Borrower's request and at the Borrower's expense;
provided that such Lender in its reasonable determination suffers no
appreciable economic, legal, regulatory or other disadvantage. In all
events, the Lenders shall promptly co-operate with the Borrowers to
the extent possible, to rearrange the affected availment to one that
may not be affected by such change, but failure to effect a change in
availment shall not relieve the relevant Borrower of its obligation to
pay the Additional Compensation. Notwithstanding the foregoing
provisions, a Lender shall only be entitled to rely upon the
provisions of Section 5.5 if and for so long as it is not treating the
Borrowers in any materially different or in any less favourable manner
than is applicable to any other customers of any relevant Lender,
where such other customers are bound by similar provisions to the
foregoing provisions of Section 5.5.
(b) If any Lender seeks Additional Compensation pursuant to Section 5.5
hereof (the "AFFECTED LENDER"), then the relevant Borrowers may
indicate to the Administrative Agent in writing that they desire to
(i) replace the Affected Lender with one or more of the other Lenders,
and/or (ii) amend a Drawdown Notice or Notice of Swing Line Borrowing
to reduce the amount sought to be borrowed to reflect the reduced
amount hereunder, and the Administrative Agent shall then forthwith
give notice to the other Lenders that any Lender or Lenders may, in
the
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aggregate, advance all or part of the Affected Lender's Main
Facility Rateable Portion of such Advance and, in the aggregate,
assume all or part of the Affected Lender's Commitment and obligations
hereunder and acquire all or part of the rights of the Affected Lender
and assume all or part of the obligations of the Affected Lender under
each of the other Loan Documents (but in no event shall any other
Lender or the Administrative Agent be obliged to do so). If a Lender
shall so agree in writing (herein collectively called the "ASSENTING
LENDERS" and individually called an "ASSENTING LENDER") with respect
to such advance, acquisition and assumption, the Main Facility
Rateable Portion of such Advance of each Assenting Lender (other than
a Swing Line Advance) and the Commitment and the obligations of such
Assenting Lender under this Agreement and the rights and obligations
of such Assenting Lender under each of the other Loan Documents shall
be increased accordingly on a date mutually acceptable to such
Assenting Lender and the Borrowers. On such date, the Assenting Lender
shall advance to the relevant Borrowers the relevant portion of the
Affected Lender's Main Facility Rateable Portion of the outstanding
Advances (other than Swing Line Advances) and the relevant Borrowers
shall prepay to the Affected Lender the Advances of the Affected
Lender then outstanding, together with all interest accrued thereon
and all other amounts owing to the Affected Lender hereunder, and,
upon such advance and prepayment, the Affected Lender shall cease to
be a "Lender" for purposes of this Agreement and shall no longer have
any obligations hereunder. Upon the assumption of the Affected
Lender's Commitment as aforesaid by an Assenting Lender, Schedule B
hereto shall be deemed to be amended to increase the Commitment of
such Assenting Lender by the amount of such assumption and to reduce
the Commitment of the Affected Lender by a like amount. If no
Assenting Lender is found, then in such event, the relevant Borrower
is entitled to repay the Affected Lender and reduce its obligations
hereunder by such amount so repaid.
5.8 TAXES
(a) All payments by any Obligor under this Agreement or the Guarantees
shall be made free and clear of and without deduction or withholding
for any and all Taxes, unless required by law. If an Obligor shall be
required by law, rule, regulation or the interpretation thereof by the
relevant governmental authority to deduct or withhold any such Taxes
from or in respect of any sum payable under this Agreement,
(i) the sum payable shall be increased by such additional amount as
may be necessary so that after making all required deductions or
withholdings (including deductions or withholdings applicable to
additional amounts paid under this Section 5.8), the relevant
Lenders or the Administrative Agent, as applicable, receive a net
amount equal to the full amount they would have received if no
deduction or withholding had been made;
(ii) the Obligor shall make such required deductions or withholdings;
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(iii) the Obligor shall pay the full amount deducted or withheld to
the relevant taxation or other authority in accordance with
Applicable Law; and
(iv) such Obligor shall deliver to the relevant Lender or
Administrative Agent, as applicable, as soon as practicable after
it has made such payment to the applicable authority (x) a copy
of such receipt as is issued by such authority evidencing the
deduction or withholding of all amounts required to be deducted
or withheld from the sum payable hereunder or (y) if such a
receipt is not available from such authority, notice of the
payment of such amount deducted or withheld;
provided that the obligations of an Obligor to pay additional
amounts pursuant to hereto shall not apply with respect to Taxes
("EXCLUDED TAXES") arising by virtue of a Lender or the
Administrative Agent, as applicable, having a connection with the
jurisdiction that imposes the Taxes other than merely by the
execution of this Agreement, receipt of payments under this
Agreement, the holding and disposition of Advances, the
performance of its obligations or the enforcement of its rights
under this Agreement.
(b) Without prejudice to the foregoing provisions of this Section 5.8, if
the Administrative Agent or any Lender (in this Section 5.8, an
"INDEMNIFIED PERSON") is required at any time (whether before or after
any Obligor has discharged all of its other obligations hereunder) to
make any payment on account of any Tax which an Obligor is required to
withhold in accordance with Section 5.8(a) hereof or for which an
Obligor is otherwise required to indemnify a Lender or the
Administrative Agent pursuant to Sections 5.8(a), (c) or (d) hereof,
or if any liability in respect of any such payment is asserted,
imposed, levied or assessed against such Indemnified Person, the
Obligor in respect of which such sum was received or receivable shall,
within 30 days of written demand of the Administrative Agent or
Lender, promptly indemnify such Indemnified Person against such
payment or liability, together with interest, penalties and expenses
payable or incurred in connection therewith including, without
limitation, any Tax imposed by any jurisdiction on or in relation to
any amounts paid to or for the account of such Indemnified Person
pursuant to this Section 5.8. An Indemnified Person intending to make
a claim pursuant to this Section 5.8 shall notify the Obligor of the
event in respect of which it believes it is entitled to make such
claim and supply reasonable supporting evidence including a copy of
the relevant portion of any written assessment, provided that any such
Indemnified Person shall not be required to disclose any information
required to be kept confidential by regulation or contract (in which
case the basis of such confidentiality, at the request and expense of
the Borrowers, shall be supported by an opinion of counsel of
reputable standing).
(c) If an Obligor fails to pay any Taxes required to be paid by it
pursuant to this Section 5.8 when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the
account of the respective Lenders, for the account
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of the Administrative Agent or for the Administrative Agent's own
account, as applicable, the required receipts or other documentary
evidence required by Section 5.8(a)(ii), the Obligor shall indemnify
the Lenders or the Administrative Agent, as applicable, for any
incremental Taxes, interest or penalties that may become payable by
any Lender or the Administrative Agent as a result of any such
failure. For purposes of this Section 5.8, a distribution by the
Administrative Agent or any Lender to or for the account of any Lender
shall be deemed a payment by the Obligor.
(d) Each Obligor will indemnify the Lenders and the Administrative Agent
for the full amount of Taxes imposed by any jurisdiction and paid by
such Lender or the Administrative Agent, as applicable with respect to
any amounts payable pursuant to this Section 5.8, and any liability
arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted. This indemnification shall be made
within 30 days from the date such Lender or the Administrative Agent,
as applicable makes written demand therefor which demand shall
identify the nature and amount of Taxes for which indemnification is
being sought and shall include a copy of the relevant portion of any
written assessment from the relevant taxing authority demanding
payment of such Taxes.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 5.8
shall survive the payment in full of principal, interest, fees and any
other amounts payable hereunder and the termination of this Agreement
and the Guarantees.
5.9 TAX REFUND
(a) If, following the imposition of any Tax on any payment by any Obligor
in consequence of which such Obligor pays an additional amount under
Section 5.8(a), any Lender receives or is granted a refund of any Tax
actually paid by it which in such Lender's sole opinion (acting in
good faith) is attributable to such additional amount paid by such
Obligor and is both identifiable and quantifiable by it without
requiring such Lender or its professional advisers to expend a
material amount of time or incur a material cost in so identifying or
quantifying (any of the foregoing, to the extent so identifiable and
quantifiable, being referred to as a "REFUND"), such Lender shall, to
the extent that it can do so without prejudice to the retention of the
relevant refund and subject to such Obligor's obligation to repay
promptly on demand by the Lender the amount to such Lender if the
relevant refund is subsequently disallowed or cancelled, reimburse
such Obligor promptly after receipt of such refund by such Lender with
such amount as such Lender shall in its sole opinion but in good faith
have concluded to be the amount or value of the relevant refund.
(b) Nothing contained in this Agreement shall interfere with the right of
any Lender to arrange its Tax and other affairs in whatever manner it
thinks fit. No Lender shall be required to disclose any confidential
information relating to the organization of its affairs.
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ARTICLE 6
CONDITIONS PRECEDENT
6.1 CONDITIONS FOR CLOSING
The following conditions shall be satisfied by the Borrowers on or prior to
Closing:
(a) each Obligor shall have duly authorized, executed and delivered to the
Administrative Agent each of the Loan Documents to which it is a party
and each such Loan Document shall constitute a legal, valid and
binding obligation of such Obligor, enforceable against such Obligor
in accordance with its terms;
(b) each Obligor shall have delivered to the Administrative Agent:
(i) a certified copy of its Organic Documents,
(ii) a certified copy of the resolutions authorizing it to enter into,
execute and deliver the Loan Documents to which it is a party and
to perform its obligations thereunder;
(iii) a certificate as to the incumbency of its officers signing the
Loan Documents to which it is a party; and
(iv) a certificate of status, good standing or like certificate with
respect to such Obligor issued by the appropriate government
officials of the jurisdiction of its incorporation;
(c) there shall have been no Material Adverse Change since September 30,
2002;
(d) no Default or Event of Default shall have occurred and be continuing;
(e) each Material Restricted Subsidiary shall have executed and delivered
to the Administrative Agent (i) a confirmation of its Guarantee if
previously provided in connection with the Existing Credit Agreement;
or (ii) a Guarantee;
(f) Celestica shall have executed and delivered to the Administrative
Agent a confirmation of its Guarantee of the monetary Obligations of
each Borrower (other than Celestica);
(g) opinions of Borrowers' Counsel, and local counsel to each Guarantor,
substantially in form of Schedule O, shall have been delivered to the
Administrative Agent;
(h) none of the undertaking, property or assets of the Borrowers or any of
the Restricted Subsidiaries shall be subject to any Liens other than
(i) Permitted Encumbrances or (ii) Liens with respect to which the
Administrative Agent shall have received satisfactory evidence of the
repayment of the underlying obligation and fully executed discharges
and releases thereof and Celestica and each of the
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Restricted Subsidiaries shall have delivered to the Administrative
Agent a Permitted Encumbrance Certificate if any of the undertaking,
property or assets of such Restricted Subsidiary is subject to any
Liens;
(i) the Borrowers shall have paid all fees and expenses relating to the
Facility provided for in this Agreement as set out in Section 2.14;
and
(j) all amounts owing by the Borrowers to the Lenders and the Agents under
the Senior Unsecured Credit Agreement shall have been fully repaid and
such Senior Unsecured Credit Facility shall have been terminated and
cancelled and shall cease to be of any further force and effect.
The conditions set forth in this Section 6.1 are inserted for the sole benefit
of the Lenders and may be waived by the Administrative Agent on behalf of the
Lenders in whole or in part, with or without terms or conditions. Prior to
waiving any condition set forth in this Section 6.1, the Administrative Agent
shall consult with the Joint Lead Arrangers and shall act reasonably given the
views of each of the Joint Lead Arrangers with respect to such waiver.
6.2 CONDITIONS FOR FIRST DRAWDOWN
The following conditions shall be satisfied by the Borrowers on or prior to the
first Drawdown Date after the date hereof:
(a) the representations and warranties set forth in Section 8.1 shall be
true and correct in all material respects on and as of the Drawdown
Date, both before and after giving effect to the Drawdown of such
Advance and to the application of proceeds therefrom on the Drawdown
Date;
(b) no Default or Event of Default shall have occurred and be continuing,
nor shall any such event occur as a result of making the Advances or
the application of proceeds therefrom on the Drawdown Date; and
(c) any Borrower which intends to make a Drawdown shall have given the
appropriate Drawdown Notice to the Administrative Agent in accordance
with the provisions of Section 2.3.
6.3 CONDITIONS FOR SUBSEQUENT DRAWDOWNS
The following conditions shall be satisfied by the Borrower requesting an
Advance at or prior to the time of each Drawdown of an Advance under the
Facility (other than a deemed Drawdown pursuant to the provisions of Section 3.4
or 4.5) subsequent to the first Drawdown after the date hereof:
(a) a Borrower shall have given to the Administrative Agent a Drawdown
Notice in accordance with the provisions of Section 2.3;
(b) the representations and warranties set forth in Section 8.1 shall be,
MUTATIS MUTANDIS, true and correct in all material respects on and as
of the Drawdown
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Date, both before and after giving effect to the Drawdown of such
Advance and to the application of proceeds therefrom on the Drawdown
Date;
(c) no Default or Event of Default shall have occurred and be continuing,
nor shall any such event occur as a result of making the Advances or
the application of proceeds therefrom on the Drawdown Date; and
(d) if the Borrower requesting the Advance is a Restricted Subsidiary that
has become a Designated Subsidiary, the Guarantee required by Section
9.1(m) to have been delivered by that Designated Subsidiary shall have
been delivered to the Administrative Agent notwithstanding that the 45
day period referred to therein may not have expired.
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ARTICLE 7
PROVISIONS RELATING TO SUBSIDIARIES
7.1 DESIGNATED SUBSIDIARIES
(a) The Administrative Agent and the Lenders acknowledge and agree and
Celestica hereby confirms that Celestica has designated Celestica
International as a Canadian Designated Subsidiary and that there are
not, on the date hereof, any other Designated Subsidiaries.
(b) Celestica may, from time to time and at any time hereafter, designate
any other wholly-owned qualifying Restricted Subsidiary as a Canadian
Designated Subsidiary provided that:
(i) all Lenders shall have previously consented in writing to the
designation of such Subsidiary as a Canadian Designated
Subsidiary;
(ii) such Subsidiary was incorporated, continued, amalgamated or
otherwise created in accordance with and continues to be governed
by the laws of a province of Canada or the federal laws of Canada
and which is domiciled in Canada;
(iii) such Restricted Subsidiary, prior to becoming a Designated
Subsidiary, shall have executed and delivered to the
Administrative Agent a Designated Subsidiary Agreement and, if it
has not already done so, a Guarantee substantially in the form of
Schedule H; and
(iv) the Restricted Subsidiary which is proposed to become a
Designated Subsidiary shall have delivered to the Administrative
Agent:
(A) a certified copy of the proposed Designated Subsidiary's
Organic Documents;
(B) a certified copy of the resolutions authorizing it to enter
into, execute and deliver the Designated Subsidiary
Agreement and the Guarantee, if applicable, and to perform
its obligations thereunder;
(C) a certificate as to the incumbency of its officers signing
the Designated Subsidiary Agreement and the Guarantee, if
applicable,
(D) a certificate of status, good standing or like certificate
with respect to such Designated Subsidiary issued by
appropriate government officials of the jurisdiction of its
incorporation; and
(E) an opinion of counsel to the Designated Subsidiary in form
of Schedule O with only those changes which are reasonably
satisfactory to the Lenders' Counsel and counsel to the
Designated Subsidiary;
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(c) Celestica may, from time to time and at any time hereafter, designate
any other wholly-owned Restricted Subsidiary which does not fall
within the definition of "CANADIAN DESIGNATED SUBSIDIARY" as a Consent
Designated Subsidiary, provided that:
(i) all Lenders shall have previously consented in writing to the
designation of such Subsidiary as a Consent Designated
Subsidiary;
(ii) Celestica shall have obtained the agreement in writing of a
Lender located in the jurisdiction where such Consent Designated
Subsidiary is resident, to utilize, subject to the terms of this
Agreement, a portion of the Commitment of such Lender or its
Affiliate to make Advances to the Consent Designated Subsidiary;
(iii) such Subsidiary, prior to becoming a Consent Designated
Subsidiary, shall have executed and delivered to the
Administrative Agent a Designated Subsidiary Agreement
substantially in the form of Schedule H and a Guarantee
substantially in the form of Schedule J, with such changes as the
Administrative Agent and the Consent Designated Subsidiary may
reasonably require on the advice of their respective counsel to
reflect local legal requirements; and
(iv) the Restricted Subsidiary which is proposed to be designated as a
Consent Designated Subsidiary shall have provided to the
Administrative Agent such number of copies as the Administrative
Agent may request of:
(A) a certified copy of the proposed Consent Designated
Subsidiary's Organic Documents;
(B) the resolutions authorizing it to enter into, execute and
deliver the Designated Subsidiary Agreement and the
Guarantee, if applicable, and to perform its obligations
thereunder;
(C) a certificate to the incumbency of its officers signing the
Consent Designated Subsidiary Agreement and the Guarantee,
if applicable;
(D) a certificate of status, good standing or like certificate
with respect to such Consent Designated Subsidiary issued by
appropriate government officials of the jurisdiction of its
incorporation; and
(E) an opinion of counsel to the Consent Designated Subsidiary
in the form of Schedule R with only those changes which are
reasonably satisfactory to the Lenders' Counsel and counsel
to the Consent Designated Subsidiary; and
(d) Celestica may, from time to time and at any time hereafter, terminate
the designation of a Designated Subsidiary as such by the delivery of
written notice to
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the Administrative Agent and the Relevant Facility Agent and from and
after the day which is five (5) Banking Days after receipt of such
notice, the subject Subsidiary shall no longer be a Designated
Subsidiary and shall have no further right or ability to obtain
further Advances under the Facility.
7.2 INTENTIONALLY DELETED
7.3 MATERIAL RESTRICTED SUBSIDIARIES TO PROVIDE GUARANTEES
(a) Each Subsidiary of Celestica which is or becomes a Material Restricted
Subsidiary shall comply with the requirements of Subsection 9.1(m).
(b) In the event that a Material Restricted Subsidiary ceases to be a
Material Restricted Subsidiary as a result of the diminution of the
value of its assets such that the aggregate value thereof does not
meet the applicable threshold set out in the definition of Material
Restricted Subsidiary under this Agreement, Celestica may request and
the Administrative Agent shall, in its reasonable discretion, release
the Guarantee executed by such Material Restricted Subsidiary.
7.4 UNRESTRICTED SUBSIDIARIES
Celestica may, from time to time and at any time hereafter, designate any
Subsidiary as an Unrestricted Subsidiary so long as:
(a) (i) such Subsidiary shall not be a Subsidiary existing as at the date
of this Agreement; (ii) such Subsidiary shall never have been a
Designated Subsidiary; and (iii) such Subsidiary shall never have been
a Restricted Subsidiary;
(b) neither Celestica nor any of its Subsidiaries (other than Unrestricted
Subsidiaries) shall be liable, contingently or otherwise, for any
indebtedness or other liability or obligation of the Unrestricted
Subsidiary, except for guarantees provided by the immediate parent of
such Unrestricted Subsidiary in respect of indebtedness of such
Unrestricted Subsidiary, where such guarantees are:
(i) made solely for the purpose of facilitating a pledge by the
guarantor of Shares of such Unrestricted Subsidiary; and
(ii) the recourse under such guarantees are limited to such pledged
Shares; and
(c) neither Celestica nor any of its Restricted Subsidiaries shall have
applied the proceeds of any Advance under the Facility to fund the
equity of, or otherwise capitalize the Unrestricted Subsidiary.
Provided that an Event of Default has not occurred and is not continuing,
Celestica may from time to time and at any time hereafter, designate an
Unrestricted Subsidiary as a Restricted Subsidiary provided that:
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(i) immediately upon giving effect to such designation, Celestica
shall remain in compliance with all covenants set out in Section
9.3 on a pro-forma (four quarter) basis; and
(ii) the designation of such Unrestricted Subsidiary as a Restricted
Subsidiary would not otherwise result in the occurrence of a
Default or an Event of Default.
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ARTICLE 8
REPRESENTATIONS AND WARRANTIES
8.1 REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants as follows to the Administrative Agent and
the Lenders and acknowledges and confirms that the Administrative Agent and the
Lenders are relying upon such representations and warranties:
(a) ORGANIZATION, ETC. Each Obligor is validly organized and existing and
in good standing under the laws of the jurisdiction of its
incorporation, creation or continuance, is duly qualified to do
business and is qualified as a foreign corporation, company or other
entity in each jurisdiction where the nature of its business requires
such qualification, except where the failure to be so qualified would
not reasonably be likely to have Material Adverse Effect, and has full
power and authority and holds all requisite governmental licences,
permits and other approvals to enter into and perform its obligations
under the Loan Documents to which it is a party and except where
failure to hold such licenses, permits or approvals would not
reasonably be likely to have a Material Adverse Effect to own or hold
under lease its property and to conduct its business substantially as
currently conducted by it.
(b) VALIDITY, ETC. Each Obligor has duly executed and delivered each Loan
Document to which it is a party and each such Loan Document
constitutes a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms.
(c) DUE AUTHORIZATION, NON-CONTRAVENTION ETC. The execution, delivery and
performance by each Obligor of each Loan Document to which it is a
party are within its corporate powers, have been duly authorized by
all necessary corporate action by it, and do not
(i) contravene its Organic Documents;
(ii) contravene any Applicable Law or contractual restriction; or
(iii) result in, or require the creation or imposition of, any Lien on
any of its properties.
(d) GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or approval or
other action by, and no consent from, notice to or filing with, any
Official Body or other Person is required for the due execution,
delivery or performance by any Obligor of any Loan Document to which
it is a party or in order to render any such Loan Document legal,
valid, binding or enforceable against such Obligor.
(e) FINANCIAL STATEMENTS. The consolidated unaudited financial statements
of Celestica and its Subsidiaries as at September 30, 2002 fairly
present the financial
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condition of Celestica and its Subsidiaries as at such date and the
results of their operations for the fiscal quarter and nine month
period then ended, in accordance with GAAP consistently applied. Since
September 30, 2002 (or, for the purposes of Sections 6.2 and 6.3, if
the Conversion Date has been extended pursuant to Section 2.8, the
date of the quarterly or annual financial statements delivered most
recently prior to the date of the most recent of such extensions
pursuant to Section 9.1(a)), there has been no Material Adverse
Change;
(f) LITIGATION, LABOUR CONTROVERSIES, ETC. There is no pending or, to the
knowledge of Celestica and the Restricted Subsidiaries, threatened
litigation, action, proceeding, or labour controversy affecting
Celestica or any of the Restricted Subsidiaries, or any of their
respective properties, businesses, assets or revenues, which would
reasonably be likely to have a Material Adverse Effect or purports to
affect the legality, validity or enforceability of any Loan Document.
(g) LICENCES, ETC. AND COMPLIANCE WITH LAWS. All material licences,
franchises, certificates, consents, rights, approvals, authorizations,
registrations, orders and permits required under Applicable Law (other
than Environmental Laws) to enable each of the Borrowers and each
Restricted Subsidiary to carry on their respective businesses as now
conducted by them and to own or lease their respective properties have
been duly obtained and are currently subsisting. Each of the Borrowers
and each Restricted Subsidiary have complied in all material respects
with the terms and provisions presently required to be complied with
by them in all such material licences, franchises, certificates,
consents, rights, approvals, authorizations, registrations, orders and
permits and with Applicable Law (other than Environmental Laws) and
are not in violation of any of the respective provisions thereof if
such non-compliance or violation would reasonably be likely to have a
Material Adverse Effect.
(h) COMPLIANCE WITH ENVIRONMENTAL LAWS. Each of the Borrowers and the
Subsidiaries and all facilities and property now or formerly owned,
operated or leased by them:
(i) are and have been in compliance with all Environmental Laws,
including, without limitation, with respect to the release,
spill, leak, pumping, pouring, emptying, injection, escape,
leaching, dumping, spraying, burial, abandonment, incineration,
seepage, placement, emission, deposit, issuance, discharge,
transportation or disposal ("RELEASE") of any Hazardous Material
in or over the water, atmosphere or soil other than for
non-compliance with Environmental Laws which would not reasonably
be likely to have a Material Adverse Effect;
(ii) have no contingent liabilities in connection with any Release or
likely Release of Hazardous Materials and have not Released or
caused or permitted the Release of Hazardous Materials, and have
no knowledge of Releases by others, at, on or under any property
now or previously owned, operated or leased by Celestica and its
Material Restricted Subsidiaries
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that, with respect to any of the foregoing, singly or in the
aggregate, would reasonably be likely to have a Material Adverse
Effect;
(iii) have not received notice of and are not aware of any pending or
threatened claims, complaints, notices, orders, directions,
instructions or requests for information with respect to any
alleged violation of or potential liability under any
Environmental Law which would reasonably be likely to have a
Material Adverse Effect;
(iv) have been issued and are in compliance with all permits,
certificates, approvals, licences and other authorizations
relating to environmental matters and necessary or desirable for
the Business other than for any such non-issuances and
non-compliances which would not reasonably be likely to have a
Material Adverse Effect and each such permit, certificate,
approval, licence or other authorization the absence of which
would reasonably be likely to have a Material Adverse Effect is
in good standing and there are no proceedings pending or, to the
knowledge of the Borrowers, threatened to revoke, amend or limit
in any material respect any such permit, certificate, approval,
licence or other authorization;
(v) have no underground storage tanks, active or, to the knowledge of
the Borrowers, abandoned, including petroleum storage tanks, on
or under any such property that, singly or in the aggregate,
would reasonably be likely to have a Material Adverse Effect;
(vi) have not directly transported or directly arranged for the
transportation of any Hazardous Substances in violation of
Environmental Laws or to any location which would reasonably be
likely to lead to claims against them for any remedial work,
damage to the environment or natural resources or personal
injury, including claims under CERCLA, which in any such case
would reasonably be likely to have a Material Adverse Effect;
(vii) have no polychlorinated biphenyls or friable asbestos present at
any such property that, singly or in the aggregate, would
reasonably be likely to have a Material Adverse Effect;
(viii) have no conditions which exist at, on or under any such
property which, with or without the passage of time, or the
giving of notice or both, would give rise to liability under any
Environmental Laws which would reasonably be likely to have a
Material Adverse Effect; and
(ix) is not listed or proposed for listing on the National Priorities
List pursuant to CERCLA, on the CERCLIS or on any similar state
list of sites or Persons requiring investigation or clean up
where the liability imposition and allocation regime provided for
in the applicable state Environmental Law is similar to CERCLA,
including, without limitation, the ability of governments and
other parties to recover costs from other responsible or
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potentially responsible persons, except for any such listing or
proposed listing which would not reasonably be likely to have a
Material Adverse Effect.
(i) ENCUMBRANCES. There are no Liens on any of the assets or undertaking
of the Borrowers or any Restricted Subsidiary other than Permitted
Encumbrances.
(j) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
(k) ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of Celestica in writing to
the Administrative Agent for the purposes of or in connection with
this Agreement is true and accurate in every material respect on the
date as of which such information is dated or certified and as of the
date of execution and delivery of this Agreement, and such information
is not incomplete by omitting to state any material fact necessary to
make such information not misleading.
(l) NO ACTION FOR WINDING-UP OR BANKRUPTCY. There has been no involuntary
action taken against any of the Borrowers or any Restricted Subsidiary
for any such corporation's winding-up, dissolution, liquidation,
bankruptcy, receivership, administration or similar or analogous
events in respect of such corporation or all or any material part of
its assets or revenues.
(m) TAXES. Each Borrower and each of its Subsidiaries have duly filed on a
timely basis all tax returns required to be filed by them except where
such failure to file would not reasonably be likely to have a Material
Adverse Effect and have paid all Taxes which are due and payable by
them, and all assessments and re-assessments, and all other Taxes,
governmental charges, governmental royalties, penalties, interest and
fines claimed against them, other than those for which liability is
being contested by them in good faith by appropriate proceedings and
for which adequate provision has been made where required in
accordance with GAAP or in respect of which such failure to pay would
not reasonably be likely to have a Material Adverse Effect, and all
required instalment payments have been made in respect of Taxes
payable for the current period for which returns are not yet required
to be filed except where such failure to pay would not reasonably be
likely to have a Material Adverse Effect; there are no agreements,
waivers or other arrangements providing for an extension of time with
respect of the filing of any tax returns by them or the payment of any
Taxes except where such agreements, waivers or other arrangements
would not reasonably be likely to have a Material Adverse Effect;
there are no actions or proceedings to be taken by any taxation
authority of any jurisdiction to enforce the payment of any Taxes by
them other than those which are being contested by them in good faith
by appropriate proceedings and which proceedings have been stayed for
the duration of such contestation.
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(n) PENSION PLANS. Except as would not be reasonably likely to have a
Material Adverse Effect, (i) all Pension Plans are duly established,
registered, qualified, administered and invested in compliance with
the terms thereof, any applicable collective agreements and Applicable
Law; (ii) no events have occurred and no action has been taken by any
Person which would reasonably be likely to result in the termination
or partial termination of any Pension Plan, whether by declaration of
any Superintendent of Pensions or otherwise; (iii) none of the
Borrowers have withdrawn any assets held in respect of any Pension
Plan except as permitted under the terms thereof and Applicable Laws;
(iv) no Pension Plan has a "SOLVENCY DEFICIENCY" or "GOING CONCERN
UNFUNDED LIABILITY" as defined in the PENSION BENEFITS ACT (Ontario)
and the regulations enacted thereunder, as amended; (v) all
contributions, premiums and other payments required to be paid to or
in respect of each Pension Plan have been paid in a timely fashion in
accordance with the terms thereof and Applicable Law and no taxes,
penalties or fees are owing or exigible in respect of any Pension
Plan; and (vi) no actions, suits, claims, or proceedings are pending
or, to the knowledge of the Borrower, threatened in respect of any
Pension Plan or its assets, other than routine claims for benefits.
For the purposes of this section, "APPLICABLE LAW" shall include any
federal or provincial pension benefits legislation and the INCOME TAX
ACT (Canada).
(o) REGULATIONS U AND X. No Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying margin
stock. None of the proceeds from the Facility will be used for the
purpose of purchasing or carrying directly or indirectly margin stock
or for any other purpose that would constitute this transaction a
"PURPOSE CREDIT" within the meaning of Regulations U and X of the
Board of Governors of the Federal Reserves System, as any of them may
be amended from time to time.
(p) INVESTMENT COMPANY ACT. No Obligor is an "investment company" within
the meaning of the United States INVESTMENT COMPANY ACT OF 1940 .
(q) PUBLIC UTILITY HOLDING COMPANY ACT. No Obligor is an "affiliate" or a
"subsidiary company" of a "public utility company" for a "holding
company" or an "affiliate" or a "subsidiary company" of a "public
utility company" as such terms are defined in the United States PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935.
8.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Article 8 and in any Loan
Document shall survive the execution and delivery of this Agreement and the
making of any Advances to the Borrowers, notwithstanding any investigations or
examinations which may be made by the Administrative Agent or any Lender or any
counsel to any of them.
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8.3 DEEMED REPETITION OF REPRESENTATIONS AND WARRANTIES
Each of the representations set out in Section 8.1 shall be true and correct in
all material respects and shall be deemed to be given on the occurrence of (i)
the Drawdown, Conversion or Rollover of an Advance, (ii) the acceptance of
drafts presented for acceptance as Bankers' Acceptances or Acceptance Notes, and
(iii) the issuance of a Letter of Credit, in each case by reference to the facts
and circumstances existing on the date of such Drawdown or acceptance or
issuance.
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ARTICLE 9
COVENANTS
9.1 AFFIRMATIVE COVENANTS
Celestica covenants and agrees with each of the Lenders that, unless the
Majority Lenders otherwise consent in writing, so long as any amount payable
hereunder or under the Loan Documents is outstanding or any of the Lenders has
any Commitment hereunder:
(a) FINANCIAL REPORTING. Celestica shall deliver to the Administrative
Agent, with sufficient copies for distribution to each of the
Administrative Agent and each of the Lenders:
(i) within 60 days after the end of each of its fiscal quarters in
each fiscal year, commencing with the fiscal quarter ending
December 31, 2002, the unaudited financial statements of
Celestica on a consolidated basis, each consisting of a balance
sheet, statement of income and statement (in the form customarily
prepared by Celestica for internal reporting purposes) of changes
in financial position as at the end of such fiscal quarter and
for the period commencing with the end of the previous fiscal
quarter and ending with the end of such fiscal quarter, together
with the figures for the year-to-date and setting forth, in each
case, in comparative form to the figures for the corresponding
fiscal quarter of the previous fiscal year;
(ii) within 120 days after the end of each fiscal year of Celestica,
the audited consolidated financial statements of Celestica for
such year setting forth the corresponding figures for the
previous fiscal year in comparative form, together with the
report thereon of an independent auditor of recognized national
standing, each consisting of a balance sheet, statement of income
and statement of changes in financial position;
(iii) within 60 days after the end of each fiscal quarter of Celestica
in each fiscal year, commencing with the fiscal quarter ending
December 31, 2002, an Officer's Certificate of Celestica
substantially in the form of Schedule D stating that:
(A) Celestica is in compliance with the covenants set forth in
this Article 9 and that no Default or Event of Default has
occurred and is continuing (or specifying such
non-compliance or Default or Event of Default and stating
what action, if any, Celestica is taking or is causing to be
taken in connection therewith) and providing a calculation
of the ratios referred to in Sections 9.3(a), (b) and (c),
and a statement as to the amount and calculation of Tangible
Net Worth, EBITDA, Interest Expense and Gross Funded Debt,
in each case as at the last day of the relevant period; and
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(B) Celestica has determined that the unconsolidated assets of
all Restricted Subsidiaries which are not Material
Restricted Subsidiaries do not, or will not, after giving
effect to the Guarantees delivered by the Restricted
Subsidiaries listed in a schedule thereto, exceed ten per
cent (10%) of the unconsolidated assets of the Borrowers and
the Restricted Subsidiaries on the date referenced in the
most recently delivered set of financial statements
delivered pursuant to Section 9.1(a)(ii);
(iv) in the event that Celestica delivers filings other than the
financial statements referred to in clauses (i) to (iii) above to
any securities commission, stock exchange or similar regulatory
authority, such filings concurrently with the delivery of such
filings to the securities commission, stock exchange or similar
regulatory authority; and
(v) such other information respecting the condition or operations,
financial or otherwise, of Celestica or any Subsidiary (other
than an Unrestricted Subsidiary) as any Lender through the
Administrative Agent may from time to time reasonably request.
(b) CORPORATE STATUS. Subject to transactions undertaken in compliance
with Section 13.12, Celestica shall remain a corporation duly
incorporated and validly subsisting under the laws of the Province of
Ontario or the federal laws of Canada and each of the Restricted
Subsidiaries shall remain validly organized and existing and in good
standing under the laws of its jurisdiction of formation or
continuance.
(c) MAINTENANCE OF BUSINESS AND PROPERTIES. Each of Celestica and each
Restricted Subsidiary shall, and shall cause each of its Subsidiaries
(except for Unrestricted Subsidiaries) to, continue its business,
maintain, preserve, protect and keep its properties in good repair,
working order and condition, reasonable wear and tear excepted, and
make necessary and proper repairs, renewals and replacements so that
its business carried on in connection therewith may be properly
conducted at all times unless Celestica or such Restricted Subsidiary
determines in good faith that the continued maintenance of any of its
properties is no longer desirable.
(d) NOTICE OF EVENT OF DEFAULT. Celestica shall deliver to the
Administrative Agent, forthwith upon becoming aware of any Default or
Event of Default, a certificate of an officer of Celestica specifying
such Default or Event of Default together with a statement of an
officer of Celestica setting forth details of such Default or Event of
Default and the action which has been, or is proposed to be, taken
with respect thereto.
(e) OTHER NOTIFICATIONS. Celestica shall at any time upon request of the
Administrative Agent, acting reasonably, provide to the Administrative
Agent an up to date corporate chart showing Celestica and all of its
Subsidiaries and shall promptly notify the Administrative Agent of:
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(i) any change in the name or organization of any of the Borrowers or any
Material Restricted Subsidiary and of any change in the location of
the registered office or executive office of any of them;
(ii) the non-compliance with any Environmental Law or any environmental
claim, complaint, notice or order issued to any of the Borrowers, or
any of the Subsidiaries, or any other environmental condition or event
where such non-compliance, condition or event would reasonably be
likely to have a Material Adverse Effect. As soon as practicable
thereafter, Celestica shall advise the Administrative Agent as to the
actions which the Borrowers or any such Subsidiary intends to take in
connection with any such claim, complaint, notice or order; and
(iii) the institution of any steps by the Borrower or any other Person to
terminate any Pension Plan which would reasonably be likely to have a
Material Adverse Effect, failure to make a required contribution to
any Pension Plan if such failure is sufficient to give rise to a Lien
under Section 3.02(f) of ERISA, the taking of any action with respect
to a Pension Plan which could reasonably be expected to result in the
requirement that a Borrower furnish a bond or other security to the
PBGC or such Pension Plan, the occurrence of any event with respect to
any Pension Plan which would reasonably be likely to have a Material
Adverse Effect and copies of all documentation relating thereto.
(f) COMPLIANCE WITH LAWS, ETC. Each of Celestica and the Restricted
Subsidiaries will, and will cause each of its Subsidiaries to, comply
in all material respects with Applicable Laws, such compliance to
include (without limitation) its qualification as a foreign
corporation in all jurisdictions in which such qualification is
legally required for the conduct of its business.
(g) PAYMENT OF TAXES. The Borrowers shall, and the Borrowers shall cause
each of the Subsidiaries to, pay or cause to be paid, when due, all
Taxes including, property taxes, business taxes, social security
premiums, assessments and governmental charges or levies imposed upon
it or upon its income, sales, capital or profit or any property
belonging to it unless any such Tax, social security premiums,
assessment, charge or levy is contested by it in good faith with
adequate provision or reserve, where required by GAAP, and to withhold
and remit when due all payroll and withholding taxes.
(h) INSURANCE. Each of Celestica and the Restricted Subsidiaries will, and
will cause each of its Subsidiaries (except for Unrestricted
Subsidiaries) to, maintain or cause to be maintained insurance with
responsible insurance companies with respect to its properties and
business against such casualties and contingencies, of such types, and
in such amounts as is customary in the case for similar businesses
operating in similar geographic locations. Notwithstanding the
foregoing, Celestica and each of the Restricted Subsidiaries shall be
permitted to self-insure only where self-insurance is usual and
customary for the type of risk, and for
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companies in substantially the same line of business and operating in
the same geographic location as Celestica or the Restricted
Subsidiary, as applicable, and where customary and usual reserves or
provisions are taken in respect of such self-insurance by Celestica or
the Restricted Subsidiary, as applicable. Upon request of the
Administrative Agent, Celestica will furnish to the Administrative
Agent for distribution to the Lenders at reasonable intervals a
certificate of an Authorized Officer of Celestica setting forth the
nature and extent of all insurance maintained by Celestica and the
Restricted Subsidiaries in accordance with this Section which
certificate shall specify the risks for which Celestica or any
Restricted Subsidiary have self-insured and the amount of the
provisions or reserves, if any, held or made in respect of such
self-insurance.
(i) BOOKS AND RECORDS. Celestica and each Restricted Subsidiary will, and
will cause each of its Subsidiaries to, keep books and records which
accurately reflect all of its business affairs and transactions.
Celestica will permit the Administrative Agent and each Lender or any
of their respective representatives, at reasonable times and customary
intervals during normal business hours, to visit Celestica's offices
and to discuss its financial matters with Celestica's financial
officers. Upon the occurrence of and during the continuation of a
Default, Celestica and each Restricted Subsidiary shall permit the
Administrative Agent and each Lender or any of their respective
representatives at any time to visit all of its offices, to discuss
its financial matters with its officers and its independent chartered
accountant (and each of Celestica and each Restricted Subsidiary
hereby authorizes such independent chartered accountant to discuss
their financial matters with the Administrative Agent and each Lender
or its representatives whether or not any representative of Celestica
or the Restricted Subsidiary is present) and to examine (and, at the
expense of the Borrowers, photocopy extracts from) any of its books or
corporate records. The Borrowers shall pay any fees of such
independent chartered accountant incurred in connection with the
Administrative Agent's or any Lender's exercise of its rights pursuant
to this Section.
(j) DESIGNATED SUBSIDIARIES TO REMAIN SUBSIDIARIES. Each Designated
Subsidiary (or its Successor Corporation within the meaning of Section
13.12) shall remain a directly or indirectly wholly-owned Subsidiary
of Celestica, except where the laws of the jurisdiction of
incorporation of such Designated Subsidiary require qualifying shares
of such Designated Subsidiary to be owned by another Person.
(k) PUNCTUAL PAYMENT. Celestica will, and will cause each Obligor to duly
and punctually pay or cause to be paid all amounts due under this
Agreement and the other Loan Documents at the dates and places, in the
currencies and in the manner provided in this Agreement and any other
Loan Documents.
(l) RATINGS MAINTENANCE. Celestica shall maintain a credit rating with the
Approved Credit Rating Agencies and shall forthwith notify the
Administrative Agent in the event that any rating by an Approved
Credit Rating Agency is downgraded or in
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the event that the rating of Celestica shall have been placed under
review by an Approved Credit Rating Agency.
(m) MATERIAL RESTRICTED SUBSIDIARY GUARANTEES.
(i) Subject to clauses (ii) and (iii), Celestica shall:
(A) within 45 days of the acquisition or incorporation of a
Subsidiary which is a Restricted Subsidiary, whose assets
total greater than U.S.$ 150,000,000 on an unconsolidated
basis on the date of such acquisition or incorporation; and
(B) upon the designation of a Restricted Subsidiary as a
Material Restricted Subsidiary on the Schedule to the
Officer's Certificate delivered pursuant to Section
9.1(a)(iii) within 45 days of such delivery of the Officer's
Certificate making such designation,
cause such Material Restricted Subsidiary to (I) authorize,
execute and deliver a Guarantee to the Administrative Agent
substantially in the form of Schedule H with such changes as the
Administrative Agent and the Material Restricted Subsidiary may
necessarily require on the advice of their respective counsel to
reflect local legal requirements; (II) deliver to the
Administrative Agent certified copies of its Organic Documents
and a resolution authorizing the Guarantee, a certificate of its
officers signing the Guarantee and a certificate of status, good
standing or like certificate with respect to it issued by
appropriate government officials of its jurisdiction of
incorporation; and (III) cause to be delivered an opinion of
counsel to the newly acquired or incorporated Material Restricted
Subsidiary substantially in the form of Schedule O, with only
those changes which are satisfactory to the Lender's Counsel.
(ii) In the event that any Material Restricted Subsidiary is not a
wholly-owned Subsidiary of Celestica, on the later of (i) the
date of execution of a Guarantee or (ii) the date of acquisition
by any Person which is not Celestica or a Subsidiary of Celestica
of any Share of such Material Restricted Subsidiary, Celestica
shall deliver an acknowledgement addressed by such Person to the
Administrative Agent acknowledging the Guarantee executed by such
Material Restricted Subsidiary and the enforceability thereof
against the Material Restricted Subsidiary to the full extent set
out in the Guarantee (subject to the same qualifications as set
out in the opinion of legal counsel to such Material Restricted
Subsidiary with respect to such Guarantee) notwithstanding the
ownership of Shares of the Material Restricted Subsidiary by such
Person and any agreement between such Person and Celestica or any
Subsidiary of Celestica.
(iii) The Borrowers and Guarantors shall, and the Borrowers shall
cause each of its Subsidiaries to, take all such steps and do
such things as may be
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necessary, in the opinion of the Administrative Agent, to ensure
the continuous enforceability of each Guarantee granted by each
Borrower and each Material Restricted Subsidiary.
(n) ACCURACY OF INFORMATION. All factual information hereafter furnished
by or on behalf of Celestica in writing to the Administrative Agent
for the purposes of or in connection with this Agreement shall be true
and accurate in every material respect on the date as of which such
information is dated or certified and shall not be incomplete by the
omission to state any material fact necessary to make such information
not misleading.
9.2 NEGATIVE COVENANTS
Celestica covenants and agrees with each of the Lenders that, unless the
Majority Lenders otherwise consent in writing, so long as any amount payable
hereunder is outstanding or the Lenders shall have any Commitment hereunder:
(a) NO MERGER, AMALGAMATION, ETC. None of the Borrowers or any Restricted
Subsidiary shall, directly or indirectly, merge, amalgamate or enter
into any similar or other business combination pursuant to statutory
authority or otherwise with any other Person except upon compliance
with Section 13.12.
(b) RESTRICTION ON DISPOSITION OF ASSETS. None of the Borrowers or any
Restricted Subsidiary shall sell, assign, transfer, lease, convey or
otherwise dispose of any property, assets or investments, (in each
case a "SALE") other than:
(i) sales made in compliance with Section 13.12; or
(ii) sales of obsolete equipment in the ordinary course of business;
or
(iii) sales, assignments and transfers pursuant to a Permitted
Securitization Transaction; or
(iv) sale/leaseback transactions of:
(A) any real property owned by a Borrower or Restricted
Subsidiary; and
(B) any property or assets acquired by a Borrower or Restricted
Subsidiary, as the case may be, which is completed within
six months of the date on which such property or assets were
acquired, provided that any Borrowing made to finance such
acquisition shall be repaid within two Banking Days of the
completion of such sale/leaseback transaction; or
(v) sales of Shares of any Unrestricted Subsidiary; or
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(vi) sales of assets and property, including inventory, in the
ordinary course of business; or
(vii) sales of any fixed assets together with associated intellectual
property not otherwise permitted in clauses (i) to (vi) above,
subject to an aggregate limit of sales under this clause (vii) in
any fiscal year by the Borrowers and Restricted Subsidiaries in
an amount equal to 10% of the aggregate net book value of the
fixed assets plus 10% of the aggregate net book value of
intellectual property of Celestica on a consolidated basis (the
"DISPOSITION ALLOWANCE") and provided that, in any fiscal year in
which the Borrowers and Restricted Subsidiaries do not sell fixed
assets and associated intellectual property under this clause
(vii) having aggregate net book values totalling the disposition
allowance, the Borrowers and Restricted Subsidiaries may carry
forward into the following fiscal years the unused disposition
allowance, and further provided that none of the Borrowers or
Restricted Subsidiaries shall sell any intellectual property
under this clause (vii) unless such sale is incidental to a sale
of fixed assets; or
(viii) sales of assets, property or investments from a Borrower or
Restricted Subsidiary to another Borrower or Restricted
Subsidiary provided that no Borrower or Restricted Subsidiary
shall so sell assets, property or investments during the
occurrence and continuance of a Default or where such sale, alone
or as part of a series of previously or concurrently occurring
sales, would reasonably be likely to have a Material Adverse
Effect.
(c) RESTRICTION ON CERTAIN INTER-COMPANY TRANSACTIONS. Except as otherwise
permitted by this Section 9.2, none of the Borrowers or any Restricted
Subsidiary shall enter into any agreement or complete any transaction
with any other Borrower or any Restricted Subsidiary during the
occurrence and continuance of a Default or where such agreement or
transaction, alone or as part of a series of previously or
concurrently occurring agreements or transactions, would reasonably be
likely to have a Material Adverse Effect.
(d) NEGATIVE PLEDGE/PARI PASSU RANKING. None of the Borrowers or any of
the Restricted Subsidiaries shall create, incur, assume or permit to
exist any Lien, other than Permitted Encumbrances, on any of its
property, undertaking or assets now owned or hereafter acquired. Each
Obligor's monetary Obligations shall rank at least pari passu with all
other unsecured Indebtedness of such Obligor and no Obligor shall, or
shall agree with any other Person to, pay any other Indebtedness in
priority to payment of all monetary Obligations as and when due.
(e) RESTRICTION ON NON-ARM'S LENGTH TRANSACTIONS. The Borrowers shall not,
and shall not permit any Restricted Subsidiary to, enter into any
transaction or agreement with any Person which is not at Arm's Length
with the Borrowers or
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such Restricted Subsidiary (other than other Borrowers, Restricted
Subsidiaries or Unrestricted Subsidiaries) unless,
(i) such transaction or agreement is in the ordinary course of
business and is on terms no less favourable to the Borrowers or
such Restricted Subsidiary as would be obtainable in a comparable
transaction with a Person which is at Arm's Length with the
Borrower or such Restricted Subsidiary, and
(ii) such transaction or agreement complies with the terms of Section
9.2(c).
(f) RESTRICTION ON CHANGE OF BUSINESS. None of the Borrowers or the
Restricted Subsidiaries shall, either directly or indirectly, enter
into any business other than the Business without the prior written
consent of the Majority Lenders.
(g) NO CHANGE IN ACCOUNTING TREATMENT OR REPORTING PRACTICES. Subject to
the provisions of Section 1.7, none of the Borrowers nor any
Restricted Subsidiary shall make any material change in its accounting
or reporting or financial reporting practices, except as consistent
with GAAP or Applicable Law, which changes shall be disclosed to the
Lenders.
(h) RESTRICTIONS ON TRANSACTIONS WITH UNRESTRICTED SUBSIDIARIES. No
Borrower shall, or shall permit any Restricted Subsidiary to,
(i) sell assets or lend monies to any Unrestricted Subsidiary unless
such sale is permitted pursuant to Section 9.2(b)(vi) and such
sale or loan is in the ordinary course of business and is on
terms no less favourable to such Borrower or such Restricted
Subsidiary as would be obtainable in a comparable transaction
with a Person which is at Arm's Length with the Borrower or such
Restricted Subsidiary; or
(ii) provide financial assistance by means of a guarantee to an
Unrestricted Subsidiary unless the financial assistance is in the
form of a guarantee granted by the immediate parent of such
Unrestricted Subsidiary, where such guarantee is (A) made solely
for the purpose of facilitating a pledge by the guarantor of
Shares of such Unrestricted Subsidiary; and (B) the recourse
thereunder is limited to the Shares of the Unrestricted
Subsidiary; and (C) a pledge of the Shares of the Unrestricted
Subsidiary.
9.3 FINANCIAL COVENANTS
(a) MINIMUM TANGIBLE NET WORTH. Celestica shall maintain, at all times, a
minimum Tangible Net Worth in an amount that shall not be less than an
amount equal to the sum of U.S.$ 1,750,000,000, plus 50% of cumulative
annual positive Net Income commencing with the fiscal year ending
December 31, 2000 and in each subsequent fiscal year.
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(b) MINIMUM EBITDA:INTEREST EXPENSE RATIO. Celestica shall maintain an
EBITDA:Interest Expense ratio, calculated on a rolling four quarter
basis of at least 3.5:1.0.
(c) MAXIMUM GROSS FUNDED DEBT:EBITDA RATIO. Celestica shall maintain a
Gross Funded Debt:EBITDA ratio calculated on a rolling four quarter
basis of not more than 3.25:1.0. The numerator of such ratio will be
reduced by 0.25 for each of the first three full calendar quarters
following the final date on which the Facility ceases to be revolving
in nature pursuant to Section 2.8(b)(v) hereof, so that such ratio
will be 3.0:1.0 for the first such quarter, 2.75:1.0 for the second
such quarter and 2.5:1.0 for the third such quarter and will remain at
2.5:1.0 for the last such quarter ending on the Final Maturity Date.
(d) CALCULATION OF FINANCIAL RATIOS. For the purposes of Sections 9.3(a),
(b) and (c), all of the calculations shall be made on a consolidated
basis in accordance with the provisions of Sections 1.7 and 1.8.
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ARTICLE 10
DEFAULT AND ACCELERATION
10.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events (each such event and
the expiry of the cure period, if any, provided in connection therewith, being
herein referred to as an "EVENT OF DEFAULT") shall constitute a default under
this Agreement:
(a) if a Borrower shall default in (i) the payment when due of any
principal of any Advance; (ii) the payment when due of any interest on
any Advance (and such default shall continue unremedied, in the case
of interest, for a period of three (3) days); or (iii) the payment
when due of any fee or any other Obligation (and any of such defaults
described in item (iii) shall continue unremedied for a period of five
(5) days);
(b) any representation or warranty made or deemed to be made hereunder or
in any other Loan Document or any other writing or certificate
furnished by or on behalf of an Obligor to the Administrative Agent
for the purposes of or in connection with this Agreement or any such
other Loan Document is or shall be incorrect when made in any material
respect;
(c) any Obligor shall default in the service or performance of any
agreement, covenant or condition contained herein or in any other Loan
Document (other than as set forth above) and such failure shall remain
unremedied for a period of thirty (30) days after notice in writing
has been given by the Administrative Agent to Celestica;
(d) if, on, prior to or in connection with any Indebtedness having a
principal amount, individually or in the aggregate, in excess of U.S.
$50,000,000 becoming Acquired Indebtedness, (i) a default shall have
occurred in the payment when due, whether by acceleration or
otherwise, of any such Acquired Indebtedness, or (ii) a default shall
occur or shall have occurred in the performance or observance of any
obligation or condition with respect to such Indebtedness or as a
result of such Indebtedness becoming Acquired Indebtedness, if the
effect of such default is to accelerate the maturity of such Acquired
Indebtedness or such default shall continue unremedied and unwaived
for any applicable grace period of time sufficient to permit the
holder or holders of such Acquired Indebtedness, or any trustee or
agent for such holders, to have the right to cause such Acquired
Indebtedness to become due and payable prior to its expressed
maturity; provided that where such Acquired Indebtedness has a
principal amount individually or in the aggregate, of up to and
including U.S. $100,000,000, a default described in clauses (i) or
(ii) shall only be an Event of Default under this Agreement if
unremedied for 60 days from the date such Indebtedness becomes
Acquired Indebtedness;
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(e) a default shall occur in the payment when due, whether by acceleration
or otherwise, of any Indebtedness (other than as set forth in (a) and
(d) above) of any Borrower or any Restricted Subsidiary having a
principal amount, individually or in the aggregate, in excess of U.S.$
50,000,000, or a default shall occur in the performance or observance
of any obligation or condition with respect to any such Indebtedness
if the effect of such default is to accelerate the maturity of any
such Indebtedness or such default shall continue unremedied and
unwaived for any applicable grace period of time sufficient to permit
the holder or holders of such Indebtedness, or any trustee or agent
for such holders, to have the right to cause such Indebtedness to
become due and payable prior to its expressed maturity;
(f) any judgment or order for the payment of money in excess of U.S.$
25,000,000, which is not covered by insurance, shall be rendered
against any Borrower or any Restricted Subsidiary and either:
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
(ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect and such
judgment shall not have been paid or otherwise satisfied;
(g) any Borrower or any Restricted Subsidiary shall:
(i) become (or be deemed by any Applicable Law to be) insolvent or
generally fail to pay, or admit in writing its inability or
unwillingness to pay its debts as they generally become due;
(ii) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, receiver and manager, liquidator,
sequestrator, administrator or other custodian in connection with
the insolvency of a Borrower or a Restricted Subsidiary or any
property of any thereof except as permitted under Section 13.12,
or make a general assignment for the benefit of creditors;
(iii) in the absence of an application referred to in Section
10.1(g)(ii), consent or acquiescence, permit or suffer to exist
the appointment of a trustee, receiver, receiver and manager,
liquidator, sequestrator, administrator or other custodian for a
Borrower or a Restricted Subsidiary or for a substantial part of
the property of any of them except as permitted under Section
13.12, and such trustee, receiver, receiver and manager,
liquidator, sequestrator, administrator or other custodian shall
not be discharged within 60 days, provided that the Borrowers
hereby expressly authorize the Administrative Agent and each
Lender to appear in any court conducting any relevant proceeding
relating to any of them or any
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Restricted Subsidiary during such 60-day period to preserve,
protect and defend their rights under the Loan Documents;
(iv) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement, administration or other case or
proceeding under any bankruptcy, insolvency or similar law, or
any dissolution, winding up, administration or liquidation
proceeding, in respect of any Borrower or any Restricted
Subsidiary (except as permitted under Section 13.12), and, if any
such case or proceeding is not commenced by such Borrower or such
Restricted Subsidiary, such case or proceeding shall be consented
to or acquiesced in by such Borrower or such Restricted
Subsidiary or shall result in the entry of an order for relief or
shall remain for 60 days undismissed, provided that each Borrower
and each Restricted Subsidiary is hereby deemed to expressly
authorize the Administrative Agent and each Lender to appear in
any court conducting any such case or proceeding relating to any
of them or any Restricted Subsidiary during such 60-day period to
preserve, protect and defend their rights under the Loan
Documents; or
(v) take any corporate action authorizing, or in furtherance of, any
of the matters referred to in clauses (ii), (iii) or (iv) above;
(h) Onex Corporation shall cease to control Celestica unless the shares of
Celestica become widely held such that no one Person or group of
Persons acting jointly or in concert (within the meaning of Part XX of
the SECURITIES ACT (Ontario)) controls Celestica, provided that any
Person or group of Persons acting jointly or in concert which owns or
controls securities of Celestica to which are attached more than 20%
of the votes that may be cast to elect the directors of Celestica
shall, in the absence of evidence satisfactory to the Administrative
Agent, acting reasonably, be deemed to control Celestica;
(i) any Loan Document shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or cease to be the
legally valid, binding and enforceable obligation of any Obligor that
is a party thereto; or any Obligor shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability of any Loan Document; or
(j) any Borrower or any governmental authority declares, orders or
proposes to order a full or partial wind up of any Pension Plan which,
in either case, would reasonably be likely to have a Material Adverse
Effect or if any of the following events shall occur with respect to a
Pension Plan:
(i) the institution of any step by a Borrower, any member of its
Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrowers or any such
member of its Controlled Group would reasonably be likely to be
required to make a contribution to such Pension Plan or could
reasonably expect to incur a liability or
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obligation to such Pension Plan which, in either case, would
reasonably be likely to have a Material Adverse Effect; or
(ii) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA.
10.2 ACCELERATION
Upon the occurrence of an Event of Default (other than as set forth in Section
10.1(g) or (h)) and at any time thereafter while an Event of Default is
continuing, the Administrative Agent may, in consultation with the Lenders (and,
if so instructed by the Majority Lenders, shall) by written notice to the
Borrowers:
(a) declare the Advances made to the Borrowers to be immediately due and
payable (whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the Borrowers
hereunder or under any other Loan Document) or declare such Advances
to be due and payable on demand of the Administrative Agent; and/or
(b) if not theretofore terminated, declare that all of the Commitments
shall be cancelled, whereupon the same shall be cancelled and the
Commitment of each Lender shall be reduced to zero.
If, pursuant to this Section 10.2, the Administrative Agent declares any
Advances made to the Borrowers to be due and payable on demand, then, and at any
time thereafter, the Administrative Agent may (and, if so instructed by the
Majority Lenders, shall) by written notice to the Borrowers call for repayment
of such Advances on such date or dates as it may specify in such notice
(whereupon the same shall become due and payable on such date together with
accrued interest thereon and any other sums then owed by the Borrowers hereunder
or under any other Loan Document and the provisions of Section 10.4 shall apply)
or withdraw its declaration with effect from such date as it may specify in such
notice.
Upon the occurrence of an Event of Default set forth in Section 10.1(g) or (h),
the Commitments shall automatically terminate and the outstanding principal
amount of all outstanding Advances (together with accrued interest thereon and
any other sums then owed by the Borrowers hereunder or under any other Loan
Document and the provisions of Section 10.4 shall apply) shall automatically be
and become immediately due and payable, without notice or demand.
10.3 REMEDIES WITH RESPECT TO BANKERS' ACCEPTANCE ADVANCES AND LETTERS OF
CREDIT
If any Event of Default shall occur and be continuing such that the entire
principal amount of the Advances then outstanding and all accrued and unpaid
interest thereon and all other payments due hereunder or under any other Loan
Document which are unpaid shall become immediately due and payable in accordance
with the provisions of Section 10.2, then the Administrative Agent may (and, if
so instructed by the Majority Lenders shall), by written notice to the
Borrowers, require the Borrowers to pay to the Administrative Agent (i) on
behalf of the Lenders, an amount equal to the Face Amount of outstanding
Bankers' Acceptances and the
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principal amount of all outstanding Acceptance Notes and (ii) on behalf of the
Issuing Bank, an amount equal to the undrawn Face Amount of any Letters of
Credit issued and outstanding under the Letter of Credit Facility.
10.4 REMEDIES CUMULATIVE AND WAIVERS
It is expressly understood and agreed that the rights and remedies of the
Lenders, the Administrative Agent and each of them hereunder or under any other
Loan Document or other instrument executed pursuant to this Agreement are
cumulative and are in addition to and not in substitution for any rights or
remedies provided by law or by equity; and any single or partial exercise by the
Lenders, the Administrative Agent or any of them of any right or remedy for a
default or breach of any term, covenant, condition or agreement contained in
this Agreement or any other Loan Document 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 Lenders, the Administrative Agent or any of them may be
lawfully entitled for such default or breach. Any waiver by the Lenders, the
Administrative Agent or any of them of the strict observance, performance or
compliance with any term, covenant, condition or other matter contained herein
or in any other Loan Document and any indulgence granted, either expressly or by
course of conduct, by the Lenders, the Administrative Agent or any of them shall
be effective only in the specific instance and for the purpose for which it was
given and shall be deemed not to be a waiver of any rights and remedies of the
Lenders, the Administrative Agent or any of them under this Agreement or any
other Loan Document as a result of any other default or breach hereunder or
thereunder.
10.5 SUSPENSION OF LENDERS' OBLIGATIONS
Without prejudice to the rights which arise out of this Agreement or by law, the
occurrence of an Event of Default shall, while such Event of Default shall be
continuing, relieve the Lenders of all obligations to make any Advances
hereunder (whether or not any Drawdown Notice in respect of any such Advance
shall have been received by the Administrative Agent prior to the occurrence of
an Event of Default) or to accept or comply with any Drawdown Notice, Conversion
Notice or Rollover Notice or accept or purchase drafts or Bankers' Acceptances
or Acceptance Notes in replacement of maturing Bankers' Acceptances or
Acceptance Notes. Without prejudice to the rights which arise out of this
Agreement or by law, the occurrence of an Event of Default shall, while such
Event of Default is continuing, relieve the Issuing Lender of all obligations to
issue Letters of Credit hereunder (whether or not any Issuance Request in
respect of any such Letter of Credit shall have been received by the
Administrative Agent and the Issuing Bank prior to the occurrence of an Event of
Default) or to comply with any Issuance Request.
10.6 APPLICATION OF PAYMENTS AFTER AN EVENT OF DEFAULT
If any Event of Default shall occur and be continuing, all payments made by the
Borrowers hereunder or payments made pursuant to any of the provisions of any of
the Guarantees shall be applied in the following order:
(a) to amounts due hereunder as costs and expenses of the Administrative
Agent;
(b) to amounts due hereunder as costs and expenses of the Lenders;
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(c) to amounts due hereunder as fees;
(d) to any other amounts (other than amounts in respect of interest or
principal) due hereunder;
(e) to amounts due hereunder as interest; and
(f) to amounts due hereunder as principal.
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ARTICLE 11
THE ADMINISTRATIVE AGENT AND
ADMINISTRATION OF THE FACILITY
11.1 AUTHORIZATION OF ACTION
Each Lender hereby irrevocably appoints and authorizes the Administrative Agent
to be its agent in its name and on its behalf and to exercise such rights or
powers granted to the Administrative Agent under this Agreement and the Loan
Documents to the extent specifically provided herein and therein and on the
terms hereof and thereof, together with such rights, powers and discretions as
are reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement or the Loan Documents, the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected as against the
Lenders in so acting or refraining from acting) upon the instructions of the
Majority Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to liability in such capacity,
which could result in the Administrative Agent incurring any costs and expenses
or which is contrary to this Agreement or Applicable Law.
11.2 PROCEDURE FOR MAKING ADVANCES
(a) The Administrative Agent shall make Advances available to the relevant
Borrowers as required hereunder by debiting the account of the
Administrative Agent to which the Lenders' Main Facility Rateable
Portions of such Advances have been credited in accordance with
Section 11.2(b) (or causing such account to be debited) and, in the
absence of other arrangements agreed to by the Administrative Agent
and Celestica in writing, by transferring (or causing to be
transferred) like funds in accordance with the instructions of the
Borrower as set forth in the Drawdown Notice in respect of each
Advance; provided that the obligation of the Administrative Agent
hereunder shall be limited to taking such steps as are commercially
reasonable to implement such instructions, which steps once taken
shall constitute conclusive and binding evidence that such funds were
advanced hereunder in accordance with the provisions relating thereto
and the Administrative Agent shall not be liable for any damages,
claims or costs which may be suffered by the Borrower and occasioned
by the failure of such Advance to reach the designated destination,
except to the extent such damages, claims or costs are the result of
the gross negligence or wilful misconduct of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Lender on the
Banking Day prior to the Drawdown Date requested by a Borrower that
such Lender will not make available to the Administrative Agent its
Main Facility Rateable Portion of such Advance, the Administrative
Agent may assume that such Lender has made such portion of the Advance
available to the Administrative Agent on the Drawdown Date in
accordance with the provisions hereof and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower
on
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such date a corresponding amount. If and to the extent such Lender
shall not have so made its Main Facility Rateable Portion of the
Advance available to the Administrative Agent, then such Lender shall
pay to the Administrative Agent forthwith on demand such Lender's Main
Facility Rateable Portion of the Advance and all reasonable costs and
expenses incurred by the Administrative Agent in connection therewith
together with interest thereon (at the rate payable thereunder by the
Borrower in respect of such Advance) for each day from the date such
amount is made available to the Borrower until the date such amount is
paid to the Agent; provided, however, that notwithstanding such
obligation, if such Lender fails to so pay, the Borrower covenants and
agrees that without prejudice to any rights such Borrower may have
against such Lender, it shall reimburse such amount to the
Administrative Agent forthwith after demand therefor by the
Administrative Agent. The amount payable to the Administrative Agent
pursuant hereto shall be as set forth in a certificate delivered by
the Administrative Agent to such Lender and such Borrower (which
certificate shall contain reasonable details of how the amount payable
is calculated) and shall be conclusive and binding, for all purposes,
in the absence of manifest error. If such Lender makes the payment to
the Administrative Agent required herein, such Lender shall be
considered to have made its Main Facility Rateable Portion of the
Advance for purposes of this Agreement and the Administrative Agent
shall make appropriate entries in the books of account maintained by
the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion
of any Advance shall not relieve any other Lender of its obligation,
if any, hereunder to make its Main Facility Rateable Portion of such
Advance on the Drawdown Date, but no Lender shall be responsible for
the failure of any other Lender to make the Main Facility Rateable
Portion of the Advance to be made by such other Lender on the date of
any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance
under the Facility are to occur on the same day, the Administrative
Agent shall not make available to the relevant Borrower the amount of
the Advance to be drawn down until the Administrative Agent is
satisfied that it has received irrevocable and irreversible payment of
the amount to be prepaid or repaid. Notwithstanding the foregoing, in
the absence of gross negligence or wilful misconduct on the part of
the Administrative Agent, the risk of non-receipt of the amount to be
repaid is that of the Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
11.3 REMITTANCE OF PAYMENTS
Forthwith after receipt of any repayment of principal or payment of interest or
fees pursuant to any provision of this Agreement, the Administrative Agent which
has received such repayment or payment shall remit to each Lender its Main
Facility Rateable Portion thereof; provided, however, that the Administrative
Agent shall be entitled to set off against and deduct from any
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amount payable to a Lender any outstanding amounts payable by such Lender to the
Administrative Agent pursuant to Section 11.2(b). Forthwith after receipt of any
payment of Facility Fees pursuant to Section 2.14, the Administrative Agent
shall remit to each Lender its Main Facility Rateable Portion of such payment.
If any Facility Agent, or the Administrative Agent, on the assumption that it
will receive on any particular date a payment of principal, interest or fees
hereunder, remits such payment to the Lenders and the Borrowers fail to make
such payment, each of the Lenders agrees to repay to the Administrative Agent
forthwith on demand the amount received by it together with all reasonable costs
and expenses incurred by the Administrative Agent in connection therewith to the
extent not reimbursed by the Borrower and interest thereon at the rate and
calculated in the manner applicable to the Advance in respect of which such
payment was made for each day from the date such amount is remitted to the
Lenders, the exact amount of the repayment required to be made by the Lenders
pursuant hereto to be as set forth in a certificate delivered by the
Administrative Agent to each Lender, which certificate shall be conclusive and
binding for all purposes in the absence of manifest error. The Administrative
Agent or the Administrative Agent, as applicable shall make appropriate entries
in the register maintained by it to reflect the foregoing.
11.4 REDISTRIBUTION OF PAYMENT
(a) If any Lender receives or recovers (whether by payment or combination
of accounts or otherwise) an amount owed to it by a Borrower under
this Agreement otherwise than through the Administrative Agent, then
such Lender shall, within two Banking Days following such receipt or
recovery, notify the Administrative Agent (who shall in turn notify
the other Lenders) of such fact.
(b) Subject to the other terms and conditions of this Agreement, if at any
time the proportion which any Lender (a "RECOVERING LENDER") has
received or recovered (whether by payment or combination of accounts
or otherwise) in respect of its portion of any payment to be made
under this Agreement by a Borrower for the account of such Recovering
Lender and one or more other Lenders is greater (the amount of the
excess being herein called the "EXCESS AMOUNT") than the proportion
thereof received or recovered by the Lender or Lenders receiving or
recovering the smallest proportion thereof, then:
(i) the Recovering Lender shall, within two Banking Days following
such receipt or recovery, pay to the Administrative Agent an
amount equal to the excess amount; and
(ii) the Agent shall treat the amount received by it from the
Recovering Lender pursuant to paragraph (i) above as if such
amount had been received by it from such Borrower pursuant to its
obligations under this Agreement and shall pay the same to the
Persons entitled thereto (including such Recovering Lender) PRO
RATA to their respective entitlements thereto in which event, for
all purposes in connection herewith, the Recovering Lender shall
be deemed only to have received or recovered from such Borrower
that portion of the excess amount which is
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actually paid to the Recovering Lender by the Administrative
Agent pursuant to this Section 11.4(b)(ii).
(c) If a Lender that has paid an excess amount to the Administrative Agent
in accordance with Section 11.4(b)(i) is required to refund the whole
(or a portion) of such excess amount to the Borrower, then each of the
other Lenders shall pay to the Administrative Agent for the account of
that Lender the whole (or that proportion) of the amount received by
it as a result of the distribution in respect of that excess amount
made by the Administrative Agent pursuant to Section 11.4(b)(ii).
11.5 DUTIES AND OBLIGATIONS
(a) None of the Agents nor any of their respective directors, officers,
agents or employees (and, for purposes hereof, each of the Agents
shall be deemed to be contracting for and on behalf of such Persons)
shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement except for its or
their own gross negligence or wilful misconduct. Without limiting the
generality of the foregoing, each Agent:
(i) may assume that there has been no assignment or transfer by any
means by any Lender of its rights hereunder, unless and until the
Administrative Agent has received a duly completed and executed
assignment in form satisfactory to it;
(ii) may consult with legal counsel (including the Lenders' Counsel),
independent public accountants and other experts of reputable
standing selected by it and shall not be liable for any action
taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts;
(iii) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other
instrument or writing believed by it to be genuine and signed or
sent by the proper party or parties or by acting upon any
representation or warranty of the Borrowers or any Guarantor made
or deemed to be made hereunder;
(iv) may assume that no Event of Default has occurred and is
continuing unless an appropriate officer charged with the
administration of this Agreement has actual notice or knowledge
to the contrary;
(v) may rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any Person upon a
certificate signed by or on behalf of such Person; and
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(vi) shall incur no liability for its failure to distribute to any
Lender the financial statements or other information provided to
the Administrative Agent by the Borrowers or any Guarantor.
Further, each Agent (a) shall not have any duty to ascertain or to
enquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of any of the
Borrowers or any Guarantor or to inspect the property (including the
books and records) of any of the Borrowers or any Guarantor and (b)
shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any instrument or document furnished pursuant
hereto.
(b) No Agent makes any warranty or representation to any Lender nor shall
any Agent be responsible to any Lender for the accuracy or
completeness of the data made available to any of the Lenders in
connection with the negotiation of this Agreement, or for any
statements, warranties or representations (whether written or oral)
made in or in connection with this Agreement.
(c) Except as otherwise provided for herein, an Agent may, but is not
obligated to, seek the approval of the Majority Lenders to any
consents required to be given by an Agent hereunder.
11.6 PROMPT NOTICE TO THE LENDERS
Subject to the provisions of Section 11.5(a)(vi), the Administrative Agent
agrees to provide to the Lenders, copies where appropriate, of all information,
notices and reports required to be given to the Administrative Agent by the
Borrowers and the Guarantors hereunder or pursuant to any other Loan Document,
promptly upon receipt of same, excepting therefrom information and notices
relating solely to the role of the Administrative Agent hereunder.
11.7 AGENT'S AUTHORITY
With respect to its Commitment and the Advances made by it as a Lender, an Agent
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not an Agent. An Agent may accept
deposits from, lend money to, and generally engage in any kind of business with
the Borrowers and the Subsidiaries or any corporation or other entity owned or
controlled by any of them and any Person which may do business with any of them,
all as if the Agent was not an Agent hereunder and without any duties to account
therefor to the Lenders.
11.8 LENDER'S INDEPENDENT CREDIT DECISION
It is understood and agreed by each Lender that it has itself been, and will
continue to be, solely responsible for making its own independent appraisal of
and investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of the Borrowers and its Subsidiaries. Accordingly,
each Lender confirms with the Agents that it has not relied, and will not
hereafter rely, on the Agents (i) to check or enquire on its behalf into the
adequacy, accuracy
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or completeness of any information provided by the Borrowers or any other Person
under or in connection with this Agreement, the other Loan Documents or the
transactions herein or therein contemplated (whether or not such information has
been or is hereafter distributed to such Lender by an Agent), or (ii) to assess
or keep under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Borrowers or any Subsidiary. Each
Lender acknowledges that a copy of this Agreement has been made available to it
for review and each Lender acknowledges that it is satisfied with the form and
substance of this Agreement.
11.9 INDEMNIFICATION
Each Lender hereby agrees to indemnify the Agents (to the extent not reimbursed
by the Borrowers) in its Global Rateable Portion, from and against any and all
liabilities, obligations, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against an Agent (in its capacity as agent for the
Lenders) in any way relating to or arising out of this Agreement or any other
Loan Documents or any action taken or admitted by an Agent under or in respect
of this Agreement or any other Loan Documents; provided that no Lender shall be
liable for any portion of such liabilities, obligations, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Agent's gross negligence or wilful misconduct. Without limiting the generality
of the foregoing, each Lender agrees to reimburse such Agent promptly upon
demand in the proportion specified herein in respect of any out-of-pocket
expenses (including counsel fees) incurred by such Agent in connection with the
preservation of any rights of the Agents or the Lenders under, or the
enforcement of, or legal advice in respect of the rights or responsibilities
under, this Agreement or any other Loan Documents, to the extent that the Agent
is not reimbursed for such expenses by the Borrowers.
11.10 SUCCESSOR AGENT
The Administrative Agent, the Syndication Agent or either Co-Documentation Agent
may, as hereinafter provided, resign at any time by giving not less than 30
days' written notice thereof to the Lenders and the Borrowers. The
Administrative Agent may, as hereinafter provided, be removed at any time on not
less than 30 days' written notice thereof by the Majority Lenders provided that
the Majority Lenders have designated a successor who is prepared to act
hereunder and which is acceptable to Celestica, acting reasonably. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor agent (the "SUCCESSOR AGENT") which shall be a Lender and which shall
be acceptable to the Borrowers, acting reasonably. Upon the acceptance of any
appointment hereunder by a Successor Agent, such Successor Agent shall thereupon
become Administrative Agent hereunder and shall succeed to and become vested
with all the rights, powers, privileges and duties of Scotiabank and Scotiabank
shall thereupon be discharged from its further duties and obligations as
Administrative Agent under this Agreement. After any resignation or removal of
Scotiabank under this Section 11.10, the provisions of this Article 11 shall
continue to enure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent hereunder.
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11.11 TAKING AND ENFORCEMENT OF REMEDIES
(a) Each of the Lenders hereby acknowledges that, to the extent permitted
by Applicable Law, the remedies provided hereunder to the Lenders are
for the benefit of the Lenders collectively and acting together and
not severally and further acknowledges that its rights hereunder are
to be exercised not severally, but collectively by the Administrative
Agent upon the decision of the Lenders regardless of whether
declaration or acceleration was made pursuant to Section 10.2;
accordingly, notwithstanding any of the provisions contained herein,
each of the Lenders hereby covenants and agrees that it shall not be
entitled to take any action with respect to the Facility, including,
without limitation, any declaration or acceleration under Section
10.2, but that any such action shall be taken only by the
Administrative Agent with the prior written consent of the Lenders or
the Majority Lenders, as applicable, provided that, notwithstanding
the foregoing:
(i) in the absence of instructions from the Lenders or from the
Majority Lenders, as applicable, and where in the sole opinion of
the Administrative Agent the exigencies of the situation warrant
such action, the Administrative Agent may without notice to or
consent of the Lenders take such action on behalf of the Lenders
as it deems appropriate or desirable in the interest of the
Lenders; and
(ii) the commencement of litigation before any court shall be made in
the name of each Lender individually unless the laws of the
jurisdiction of such court permit such litigation to be commenced
in the name of the Administrative Agent on behalf of the Lenders
(whether pursuant to a specific power of attorney in favour of
the Administrative Agent or otherwise) and the Administrative
Agent agrees to commence such litigation in its name;
each of the Lenders hereby further covenants and agrees that upon any
such written consent being given by the Lenders or the Majority
Lenders, as applicable, they shall co-operate fully with the
Administrative Agent to the extent requested by the Administrative
Agent in the collective realization including, without limitation, the
appointment of a receiver and manager to act for their collective
benefit; and each Lender covenants and agrees to do all acts and
things and to make, execute and deliver all agreements and other
instruments, including, without limitation, any instruments necessary
to effect any registrations, so as to fully carry out the intent and
purpose of this Section 11.11; and each of the Lenders hereby
covenants and agrees that it has not heretofore and shall not seek,
take, accept or receive any security for any of the obligations and
liabilities of the Borrowers or any Guarantor hereunder or under any
other document, instrument, writing or agreement ancillary hereto and
shall not enter into any agreement with any of the parties hereto or
thereto relating in any manner whatsoever to the Facility, unless all
of the Lenders shall at the same time obtain the benefit of any such
agreement.
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(b) Notwithstanding any other provision contained in this Agreement, no
Lender shall be required to be joined as a party to any litigation
commenced against the Borrowers or any Guarantor by the Administrative
Agent or the Majority Lenders hereunder (unless otherwise required by
any court of competent jurisdiction) if it elects not to be so joined
in which event any such litigation shall not include claims in respect
of the rights of such Lender against the Borrowers and the Guarantors
hereunder until such time as such Lender does elect to be so joined;
provided that if at the time of such subsequent election it is not
possible or practicable for such Lender to be so joined, then such
Lender may commence proceedings in its own name in respect of its
rights against the Borrowers and the Guarantors hereunder.
11.12 RELIANCE UPON LENDERS
The Administrative Agent shall be entitled to rely upon any certificate, notice
or other document provided to it by a Lender on behalf of all financial
institutions and Affiliates which together constitute a Lender pursuant to this
Agreement and the Administrative Agent shall be entitled to deal with the
Lenders with respect to the matters under this Agreement which are such
Administrative Agent's responsibilities without any liability whatsoever to the
Lenders for relying upon any certificate, notice or other document provided to
it by such Lender notwithstanding any lack of authority of the Lender to provide
the same or to bind the other financial institutions and Affiliates which
together constitute a Lender.
11.13 RELIANCE UPON ADMINISTRATIVE AGENT
The Borrower and the Guarantors shall be entitled to rely upon any certificate,
notice or other document provided to any of them by the Administrative Agent
pursuant to this Agreement and the Borrowers and the Guarantors shall be
entitled to deal with the Administrative Agent (and, except as otherwise
specifically provided, not to deal with any Lender prior to an Event of Default)
with respect to all matters under this Agreement without any liability
whatsoever to the Lenders for relying upon any certificate, notice or other
document provided to any of them by the Administrative Agent, notwithstanding
any lack of authority of the Administrative Agent to provide the same. Without
limiting the generality of the foregoing, but subject as herein otherwise
specifically provided, none of the Lenders shall have any right to enforce
directly any of the provisions of this Agreement or to communicate with the
Borrowers and the Guarantors except through the Administrative Agent in
accordance with the terms of this Agreement or as otherwise specifically
provided in this Agreement. The provisions of this Article 11 are for the
benefit of the Agents and the Lenders and, except for the provisions of Sections
11.2, 11.13, 11.14 and 11.15, may not be relied upon by the Borrowers or the
Guarantors.
11.14 REPLACEMENT OF CANCELLED COMMITMENTS
If, at any time prior to the Final Maturity Date, the Commitment of any Lender
or Lenders is cancelled, or any Lender fails to perform its obligations
hereunder, the Administrative Agent may, and at the request of the Borrowers,
provided that no Default or Event of Default has occurred and is continuing,
shall use its reasonable efforts to locate one or more other Persons
("SUBSTITUTE LENDERS") satisfactory to the Borrowers (who may be an existing
Lender) to
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become a Lender and to assume all or a portion of the Commitment so cancelled,
provided that the Administrative Agent shall not be under any obligation to
assume such cancelled Commitment itself if the Administrative Agent is unable to
locate any Substitute Lenders. Upon locating one or more Substitute Lenders, the
Administrative Agent (on behalf of each of the parties hereto other than the
Borrowers, the Guarantors and the Lender or Lenders whose Commitment has been
cancelled), the Borrowers, the Guarantors and the Substitute Lenders shall make
any appropriate amendments to this Agreement which are required to incorporate
such Substitute Lender or Lenders hereunder. If any Substitute Lender is not an
existing Lender, then Celestica shall pay to the Administrative Agent an
administration fee of U.S.$ 3,500.
11.15 DISCLOSURE OF INFORMATION
(a) The Borrowers agree that, if Celestica has given its prior written
consent to a Person being an assignee or transferee hereunder, then
the Administrative Agent or any Lender may provide any such assignee
or transferee or proposed assignee or transferee pursuant to Section
13.11 with any information it has concerning the financial condition
of the Borrowers and their Subsidiaries other than information
delivered by the Borrowers to the Administrative Agent and/or the
Lenders on a confidential basis which is not in the public domain;
provided that, for greater certainty, nothing in this Section 11.15(a)
shall prevent the Administrative Agent or any Lender from disclosing
the terms of this Agreement on a confidential basis to any proposed
assignee or transferee of any Lender; and provided further that
consent of the Borrowers shall not be required if an Event of Default
has occurred and is continuing.
(b) Subject to Section 11.15(a), the Administrative Agent and each of the
Lenders acknowledges the confidential nature of the financial,
operational and other information and data provided and to be provided
to it by the Borrowers pursuant hereto that is not at the time it is
so provided or (other than through a breach of this Agreement)
thereafter in the public domain and agrees to use reasonable efforts
to prevent the disclosure of such information; provided, however,
that:
(i) the Administrative Agent or any Lender may disclose all or any
part of such information if, (A) in the sole reasonable opinion
(stated in writing) of the Lenders' Counsel, such disclosure is
compellable by Applicable Law in connection with any threatened
judicial, administrative or governmental proceeding or is
required in connection with any actual judicial, administrative
or governmental proceeding or (B) such disclosure is compellable
by Applicable Law, provided that in any such event the
Administrative Agent or the relevant Lender will make reasonable
efforts to provide Celestica with prompt written notice of any
such compellable disclosure so that Celestica may seek a
protective order or other appropriate remedy or relief to prevent
such disclosure from being made. The failure to deliver such
notice or, where applicable, the giving of such notice, shall not
preclude disclosure by the Administrative Agent or the Lender
where legally required in the opinion of Lenders' Counsel. In any
event, the Administrative Agent or Lender will furnish only that
portion of
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such information which, in the reasonable opinion of the Lenders'
Counsel, it is legally required to disclose and will exercise
reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded such information;
(ii) it shall incur no liability in respect of any disclosure of
such information to any, or pursuant to the requirements of
any, judicial authority, law enforcement agency, tax or
regulatory authority which it is required to make in
accordance with Applicable Law;
(iii) it shall inform the Borrowers, as soon as is practicable,
of any disclosure of such information made by it unless such
disclosure is in the ordinary course of its business or such
tax or regulatory authority or such judicial authority or
law enforcement agency requires the Administrative Agent or
such Lender not to inform the Borrowers of the disclosure of
such information to it;
(iv) the Administrative Agent and each Lender may disclose all or
any part of such information to its auditors on a
confidential basis (except where such auditor is the Auditor
General of Canada, in which case such disclosure may be on a
non-confidential basis) or to Lenders' Counsel or other
counsel of reputable standing on a confidential basis for
the purpose of seeking or obtaining accounting or legal
advice;
(v) the Administrative Agent and each Lender may disclose such
information on a confidential basis to any Subsidiary or
Affiliate of the Administrative Agent or Lender if such
disclosure is required in connection with the administration
of the Facility;
(vi) if an Event of Default has occurred and is continuing, the
Administrative Agent or any Lender may disclose such
information to the Administrative Agent or other Lenders on
a confidential basis in connection with any discussions
regarding or related to the resolution of such Event of
Default; and
(vii) the Administrative Agent and each Lender may disclose all
or any part of such information with the prior written
consent of Celestica.
11.16 ADJUSTMENTS OF RATEABLE PORTIONS
(a) In connection with any Drawdown (other than a Drawdown of a Swing Line
Advance), Conversion or Rollover or any reimbursement or repayment of
an Obligation, the Administrative Agent shall, in its sole and
unfettered discretion, have the right (but not the obligation) to make
adjustments of the amount of such Drawdown, Conversion or Rollover
advanced or paid by such Lender or the amount of such reimbursement or
repayment to be received by such Lender in order to maintain the
balances of the Advances made by each Lender other than to
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a Consent Designated Subsidiary in the same portion as the Main
Facility Rateable Portion of each Lender.
(b) Upon the occurrence of an acceleration under Section 10.1(g), 10.1(h)
or 10.2, if, with respect to any Lender, the aggregate of all
outstanding Advances made by such Lender is less than its Global
Rateable Portion (after giving effect to any adjustment made pursuant
to Subsection 11.16(a)) of the aggregate of all outstanding Advances,
the Administrative Agent may, by written notice, require such Lender
to pay to the Administrative Agent, for the credit of the other
Lenders, in such currency or currencies as the Administrative Agent
may in its discretion determine, such amount as may be required so as
to bring the aggregate of all outstanding Advances made by such Lender
equal to its Global Rateable Portion of the aggregate of all
outstanding Advances. The Administrative Agent shall credit the funds
received from such Lender to any other Lender or Lenders, as it may
determine in its discretion, so as to render the aggregate of the
outstanding Advances made by each Lender equal to the Global Rateable
Portion of each Lender of all outstanding Advances.
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ARTICLE 12
COSTS, EXPENSES AND INDEMNIFICATION
12.1 COSTS AND EXPENSES
Each Borrower shall pay promptly, upon request by the Administrative Agent
accompanied by reasonable supporting documentation or other evidence, all
reasonable costs and expenses in connection with the due diligence pertaining to
or the preparation, printing, execution and delivery of this Agreement and the
other documents to be delivered hereunder including, without limitation, the
reasonable fees and out-of-pocket expenses of the Lenders' Counsel with respect
thereto. Except for ordinary expenses of the Administrative Agent relating to
the day-to-day administration of this Agreement, each Borrower further agrees to
pay all reasonable out-of-pocket costs and expenses (including reasonable fees
and expenses of counsel, accountants and other experts) in connection with the
syndication of the Facility and the interpretation, preservation or enforcement
of rights of the Administrative Agent and the Lenders under this Agreement and
the Loan Documents including, without limitation, all reasonable costs and
expenses sustained by them as a result of any failure by any of the Borrowers or
Guarantors to perform or observe its obligations contained in any of this
Agreement and the Loan Documents. The Borrowers further agree to pay all
reasonable out-of-pocket expenses of the Issuing Bank with respect to the
issuance and administration of Letters of Credit.
12.2 INDEMNIFICATION BY THE BORROWERS
In addition to any liability of each Borrower to any Lender or any Agent under
any other provision hereof, each Borrower shall indemnify the Lenders and the
Agents and hold each Lender and each Agent harmless against any reasonable costs
or expenses incurred by a Lender or an Agent as a result of (i) any failure by
such Borrower to fulfil any of its obligations hereunder or under any Loan
Document in the manner provided herein including, without limitation, any cost
or expense incurred by reason of the liquidation or re-employment in whole or in
part of deposits or other funds required by any Lender to fund or maintain any
Advance as a result of the failure of such Borrower to complete a Drawdown or to
make any repayment or other payment on the date required hereunder or specified
by it in any notice given hereunder; or (ii) the failure of such Borrower to pay
any other amount including, without limitation, any interest or fee due
hereunder on its due date; or (iii) the prepayment or repayment by such Borrower
of any LIBOR Advance or Bankers' Acceptance Advance prior to its date of
maturity or the last day of the then current Interest Period for such Advance.
12.3 FUNDS
Each amount advanced, made available, disbursed or paid hereunder shall be
advanced, made available, disbursed or paid, as the case may be, in immediately
available funds or, after notice from the Administrative Agent, in such other
form of funds as may from time to time be customarily used in the jurisdiction
in which the Advance is advanced, made available, disbursed or paid in the
settlement of banking transactions similar to the banking transactions required
to give effect to the provisions of this Agreement on the day such advance,
disbursement or payment is to be made.
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12.4 GENERAL INDEMNITY
(a) INDEMNITY. Subject to paragraphs (b), (c) and (d) below, the Borrowers
agree to indemnify and save harmless the Agents, the Lenders, their
respective Affiliates involved in the syndication or administration of
the Facility, their respective officers, directors, employees and
agents (collectively, the "INDEMNITEES" and individually, an
"INDEMNITEE") from and against any and all liabilities, claims,
damages and losses (including reasonable legal fees and disbursements
of counsel but excluding loss of profits and special or consequential
damages) (collectively, the "LOSSES") as a result of any claims,
actions or proceedings ("CLAIMS") asserted against the Indemnitees, by
a Person other than the Indemnitees in connection with the agreement
of the Lenders to provide the Facility, the Commitments of the Lenders
and the Advances made by the Lenders including, without limitation:
(i) the costs of defending and/or counterclaiming or claiming over
against third parties in respect of any Claim; and (ii) subject to the
provisions set forth in paragraph (d) below, any Losses arising out of
a settlement of any Claim made by the Indemnitees.
(b) LIMITATIONS TO INDEMNITY. The foregoing obligations of indemnification
shall not apply to (i) any Losses suffered by the Indemnitees or any
of them or to any Claim asserted against the Indemnitees or any of
them to the extent such Loss or Claim has resulted from the gross
negligence or wilful misconduct of the Indemnitees or any of them; and
(ii) any Losses with respect to Taxes for which an Indemnitee may
claim an indemnity from an Obligor pursuant to Section 5.8(b) of this
Agreement.
(c) NOTIFICATION. Whenever a Lender or an Agent shall have received notice
that a Claim has been commenced or threatened, which, if successful,
would subject a Borrower (the "INDEMNIFYING PARTY") to the indemnity
provisions of this Section 12.4, the Lender or the Agent shall as soon
as reasonably possible notify (to the extent permitted by law) the
Indemnifying Party in writing of the Claim and of all relevant
information the Lender or the Agent possesses relating thereto;
provided, however, that failure to so notify the Indemnifying Party
shall not release it from any liability which it may have on account
of the indemnity set forth in this Section 12.4, except to the extent
that the Indemnifying Party shall have been materially prejudiced by
such failure.
(d) DEFENCE AND SETTLEMENT. The Indemnifying Party shall have the right,
but not the obligation, to assume the defence of any Claim in any
jurisdiction with legal counsel of reputable standing in order to
protect the rights and interest of the Indemnitees. In such respect,
(i) the Indemnifying Party shall require the consent of the
Indemnitees to the choice of legal counsel in connection with the
Claim, which consent shall not be unreasonably withheld or delayed;
and (ii) without prejudice to the rights of the Indemnitees to retain
counsel and participate in the defence of the Claim, the Indemnifying
Party and the Indemnitees shall make all reasonable efforts to
co-ordinate their course of action in connection with the defence of
such Claim. The related costs and expenses sustained in such respect
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by the Indemnitees shall be at the expense of the Indemnifying Party,
provided that the Indemnifying Party shall only be liable for the
costs and expenses of one firm of separate counsel in addition to the
cost of any local counsel that may be required. If the Indemnifying
Party fails to assume defence of the Claim, the Indemnitees will (upon
further notice to the Borrowers) have the right to undertake, at the
expense of the Indemnifying Party, the defence, compromise or
settlement of the Claim on behalf and for the account and risk of the
Indemnifying Party, subject to the right of the Indemnifying Party to
assume the defence of the Claim at any time prior to settlement,
compromise or final determination thereof.
Notwithstanding the foregoing, in the event the Indemnitee, acting reasonably,
does not agree with the manner or timeliness in which the legal counsel of the
Indemnifying Party is carrying on the defence of the Claim, or, pursuant to the
opinion of a reputable counsel retained by the Indemnitee, there may be one or
more legal defences available different from the one carried on by the legal
counsel of the Indemnifying Party, the Indemnitee shall have the right to assume
its own defence in the Claim by appointing its own legal counsel. The costs and
the expenses sustained by the Indemnitee shall be at the expense of the
Indemnifying Party provided that the Indemnifying Party shall only be liable for
the costs and expenses of one firm of separate counsel, in addition to the costs
of any local counsel that may be required.
The Indemnifying Party shall not be liable for any settlement of any Claim
effected without its written consent (which shall not be unreasonably withheld
or delayed). In addition, the Indemnifying Party will not, without the prior
written consent of the Indemnitee (which consent shall not be unreasonably
withheld or delayed), settle, compromise or consent to the entry of any judgment
in or otherwise seek to terminate any Claim or threatened Claim in respect of
which indemnification or contribution may be sought hereunder.
If an offer for settlement made to any Indemnitee which the Indemnifying Party
has recommended for acceptance is rejected by the Indemnitee and the final
liability of the Indemnitee in respect of such action and all related damages is
greater than such offer, the liability of the Indemnifying Party will only be to
indemnify the Indemnitee up to the amount of such offer.
12.5 ENVIRONMENTAL CLAIMS
(a) INDEMNITY. Subject to paragraphs (b), (c) and (d) below, the Borrowers
agree to indemnify and save harmless the Indemnitees from and against
any and all Losses as a result of any Claims asserted against the
Indemnitees by a Person other than the Indemnitees with respect to any
material presence or Release on, into, onto, under or from any
property owned, leased or operated by any of the Borrowers or any
Subsidiary (the "PROPERTY") of any Hazardous Material regardless of
whether caused by, or within the control of, the Borrower or any
Subsidiary or which arises out of or in connection with any action of,
or failure to act by, the Borrowers or any Subsidiary or any
predecessor or successor thereof in contravention of any present or
future applicable Environmental Laws, whether or not having the force
of law, including, without limitation: (i) the costs of defending
and/or counterclaiming or claiming over against third parties in
respect
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of any such Claim; and (ii) subject to the provisions set forth in
paragraph (d) below, any Losses arising out of a settlement made by
the Indemnitees of any Claim.
(b) LIMITATIONS TO INDEMNITY. The foregoing obligations of indemnification
shall not apply to any Losses suffered by the Indemnitees or any of
them or to any Claim asserted against the Indemnitees or any of them
which relates directly to any action or omission taken by any of the
Indemnitees while in possession or control of the Property which is
grossly negligent or constitutes wilful misconduct but shall apply to
any Claim occurring during such period that relates to a continuation
of conditions previously in existence or of a practise previously
employed by any Obligor.
(c) NOTIFICATION. Whenever an Indemnitee shall have received notice that a
Claim has been commenced or threatened, which, if successful, would
subject the Borrowers to the indemnity provisions of this Section
12.5, the Indemnitee shall as soon as reasonably possible and in any
event on or before the expiry of the date (the "NOTIFICATION DATE")
which is the earlier of (i) the tenth Banking Day after the receipt of
such notice by the Indemnitee, and (ii) such date as will afford
sufficient time for the Borrowers to prepare and file a timely answer
to the Claim, notify the Borrowers of the Claim and of all relevant
information the Indemnitee possesses relating thereto. If the
Indemnitee shall fail to so notify the Borrowers and provide it with
such information on or before the Notification Date, the Borrowers
shall not have any liability hereunder in respect of any Losses
suffered by the Indemnitee in respect of such Claim to the extent such
Losses may be reasonably attributable to such failure by the
Indemnitee.
(d) DEFENCE AND SETTLEMENT. The provisions of Section 12.4(d) shall apply
to any Claims under this Section 12.5.
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ARTICLE 13
GENERAL
13.1 TERM
The Facility shall expire on the Final Maturity Date.
13.2 SURVIVAL
All covenants, agreements, representations and warranties made herein or in
certificates delivered in connection herewith by or on behalf of the Borrowers
and each Guarantor shall survive the execution and delivery of this Agreement
and the making of the Drawdowns hereunder and shall continue in full force and
effect so long as there is any obligation of the Borrowers and each Guarantor to
the Agents and the Lenders hereunder.
13.3 BENEFIT OF THE AGREEMENT
This Agreement shall enure to the benefit of and be binding upon the successors
and permitted assigns of the Borrowers and the successors and permitted assigns
of the Agents and the Lenders.
13.4 NOTICES
All notices, requests, demands or other communications to or from the parties
hereto shall be in writing and shall be given by overnight delivery service, by
hand delivery or by telecopy to the addressee as follows:
(i) If to the Borrowers:
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Vice President and Treasurer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Vice President and General Counsel
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
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(ii) If to the Administrative Agent:
The Bank of Nova Scotia
Loan Syndications
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Managing Director
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if to a Lender, at the addresses set out in Schedule A or in the
relevant Transfer Notice;
or at such other address or to such other individual as the Borrowers may
designate by notice to the Administrative Agent and as the Administrative Agent
or a Lender may designate by notice to the Borrowers and the Lenders or the
Administrative Agent, as the case may be.
13.5 AMENDMENT AND WAIVER
This Agreement and any Loan Documents collateral hereto may be modified or
amended and a waiver of any breach of any term or provision of this Agreement
shall be effective only if the Borrowers, the Administrative Agent and the
Majority Lenders so agree in writing, provided that in all cases the Borrowers
shall be entitled to rely upon the Administrative Agent, without further inquiry
in respect of any amendments or waivers agreed to by the Administrative Agent
and which the Administrative Agent has confirmed have been agreed to by the
Majority Lenders; provided further, however, that no amendment, waiver or
consent, unless in writing and signed by all of the Lenders shall: (i) increase
the Commitment of any Lender or subject any Lender to any additional obligation;
(ii) reduce the principal of, or interest on, the Advances or reduce any fees
hereunder; (iii) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any other amounts payable hereunder; (v) amend the
definition of Majority Lenders; (vi) amend or release any Guarantee, except to
the extent that a release of a Guarantee may be effected pursuant to a
transaction subject to Section 13.12 or is otherwise authorized pursuant to the
terms of this Agreement and except to the extent that an amendment, as
determined by the Administrative Agent and Lenders' Counsel, each acting
reasonably, does not materially impair the enforceability or unconditionality of
such Guarantee; or (vii) amend this Section 13.5; and provided, further, that no
amendment, waiver or consent, unless in writing and signed by the Administrative
Agent, Swing Line Lender, Issuing Bank or Administrative Agent, as applicable,
in addition to the Lenders required herein above to take such action, affects
the rights or duties of the Administrative Agent, Swing Line Lender, Issuing
Bank or Administrative Agent, as applicable, under this Agreement or any
Advance. A waiver of any breach of any term or provision of this Agreement shall
be limited to the specific breach waived.
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13.6 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein. The Agents,
Lenders and Borrowers agree that any legal suit, action or proceeding arising
out of this Agreement or any Loan Document may be instituted in the courts of
Ontario, and the Agents, Lenders and Borrowers hereby accept and irrevocably
submit to the nonexclusive jurisdiction of said courts and acknowledge their
competence and agree to be bound by any judgment thereof.
13.7 FURTHER ASSURANCES
Each Obligor shall promptly cure any default in its execution and delivery of
this Agreement or in any of the other instruments referred to or contemplated
herein to which it is a party. Each Obligor, at its expense, will promptly
execute and deliver, or cause to be executed and delivered, to the
Administrative Agent, upon request, all such other and further documents,
agreements, certificates and instruments in compliance with, or accomplishment
of the covenants and agreements of such Obligor hereunder or more fully to state
the obligations of such Obligor as set out herein or to make any recording, file
any notice or obtain any consents, all as may be necessary or appropriate in
connection therewith.
13.8 ENFORCEMENT AND WAIVER BY THE LENDERS
Subject to Section 11.11, the Lenders shall have the right at all times to
enforce the provisions of this Agreement and agreements to be delivered pursuant
hereto in strict accordance with the terms hereof and thereof, notwithstanding
any conduct or custom on the part of the Lenders in refraining from so doing at
any time or times. The failure of the Lenders at any time or times to enforce
their rights under such provisions, strictly in accordance with the same, shall
not be construed as having created a custom in any way or manner, modified or
waived the same. All rights and remedies of the Lenders are cumulative and
concurrent and the exercise of one right or remedy shall not be deemed a waiver
or release of any other right or remedy.
13.9 EXECUTION IN COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
considered an original and all of which taken together shall constitute a single
agreement.
13.10 ASSIGNMENT BY THE BORROWERS
The rights and obligations of the Borrowers under this Agreement are not
assignable to any other Person, except in accordance with Article 7, without the
prior written consent of all of the Lenders, which consent shall not be
unreasonably withheld.
13.11 ASSIGNMENTS AND TRANSFERS BY A LENDER
(a) With the prior written consent of the Administrative Agent and
Celestica, such consent not to be unreasonably withheld or delayed,
any Lender may, at any time, assign all or any of its rights and
benefits hereunder or transfer in accordance with
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Section 13.11(b) all or any of its rights, benefits and obligations
hereunder; provided that in the event that such assignment would give
rise to a claim for increased costs pursuant to Article 5, it shall
not be unreasonable for Celestica to withhold its consent to such
assignment. Any assignment or transfer shall be with respect to a
minimum Commitment of U.S.$ 10,000,000 and integral multiples of U.S.$
1,000,000 in excess thereof. A lesser amount may be assigned or
transferred by any Lender if such amount represents the remaining
balance of such Lender's Commitment. Notwithstanding the foregoing,
the consent of the Administrative Agent and Celestica is not required
in connection with the assignment or transfer of all or any of the
rights, benefits and obligations hereunder (i) to any Subsidiary or
Affiliate of a Lender or to any other Lender hereunder provided that
notice is given to the Administrative Agent and Celestica, and
provided that, in either case, any such assignment or transfer does
not give rise to a claim for increased costs pursuant to Article 5 or
any obligation on the part of an Obligor to deduct or withhold any
Taxes from or in respect of any sum payable hereunder to the
Administrative Agent or the Lenders, in either case, in excess of what
would have been the case without such assignment, or such assignee
waives the rights to any benefits under Section 5.8; or (ii) to any
financial institution if an Event of Default has occurred and is
continuing.
(b) If any Lender assigns all or any of its rights and benefits hereunder
in accordance with Section l3.11(a), then, unless and until the
assignee has agreed with the Administrative Agent and the other
Lenders (in a Transfer Notice or otherwise) that it shall be under the
same obligations towards each of them as it would have been under if
it had been an original party hereto as a Lender, none of the
Administrative Agent or any of the other Lenders or the Borrowers
shall be obliged to recognize such assignee as having the rights
against each of them which it would have had if it had been such a
party hereto.
(c) If any Lender wishes to assign all or any of its rights, benefits
and/or obligations hereunder as contemplated in Section l3.11(a), then
such transfer may be effected upon:
(i) receipt of the written consent of the Administrative Agent and
Celestica as referred to in Section 13.11(a) delivered to the
relevant assignee by the Administrative Agent unless an Event of
Default has occurred and is continuing in which case consent of
Celestica shall not be required;
(ii) the delivery to and countersignature by the relevant Lender of a
duly completed and duly executed Transfer Notice; and
(iii) if any Lender wishes to assign any of its rights, benefits
and/or obligations hereunder to a financial institution which is
not a Lender or a Subsidiary or Affiliate of a Lender, such
Lender shall have paid to the Administrative Agent a fee in the
amount of U.S.$ 3,500;
-107-
in which event, on the later of the effective date, if any,
specified in such Transfer Notice and the fifth Banking Day after
the date of delivery of such Transfer Notice to the
Administrative Agent (unless the Administrative Agent agrees to a
shorter period):
(iv) to the extent that in such Transfer Notice the Lender party
thereto seeks to transfer its rights and obligations hereunder,
each of the Obligors and such Lender shall be released from
further obligations towards one another hereunder and their
respective rights against one another shall be cancelled (such
rights and obligations being referred to in this Section 13.11(c)
as "DISCHARGED RIGHTS AND OBLIGATIONS");
(v) each of the Obligors and the assignee party thereto shall assume
obligations towards one another and/or acquire rights against one
another which differ from such discharged rights and obligations
only insofar as such Obligor and such Assignee have assumed
and/or acquired the same in place of such Obligor and such
Lender; and
(vi) the Administrative Agent, such assignee and the other Lenders
shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had
such assignee been an original party hereto as a Lender with the
rights and/or obligations acquired or assumed by it as a result
of such transfer.
(d) Each of the parties hereto confirms that:
(i) the delivery to an assignee of a Transfer Notice signed by a
Lender constitutes an irrevocable offer (subject to the
conditions of Section 13.11(c)) by each of the parties hereto to
accept such transferee (subject to the conditions set out herein)
as a Lender party hereto with the rights and obligations so
expressed to be transferred;
(ii) such offer may be accepted by such assignee by the execution of
such Transfer Notice by such assignee and upon fulfilment of the
conditions set forth in Section 13.11(c); and
(iii) the provisions of this Agreement shall apply to the contract
between the parties thereto arising as a result of acceptance of
such offer.
(e) The Administrative Agent shall not be obliged to accept any Transfer
Notice received by it hereunder and no such Transfer Notice may take
effect on any day on or after the receipt by the Administrative Agent
of a Drawdown Notice and prior to the date for the making of the
proposed Advance.
(f) No transfer pursuant to this Section 13.11 shall, unless the
Administrative Agent otherwise decides in its absolute discretion and
notifies the parties to such transfer accordingly, be effective if the
date for effectiveness of such transfer on the day
-108-
on which the Administrative Agent receives the applicable Transfer
Notice is on, or less than five Banking Days before, the day for the
payment of any interest or fee hereunder.
(g) Any Lender may participate all or any part of its interest hereunder,
provided that any such participation does not give rise to a claim for
increased costs pursuant to Article 5 or any obligation on the part of
an Obligor to deduct or withhold any Taxes from or in respect of any
sum payable hereunder to an Agent or the Lenders, or such Lender and
participant waive the right to any benefits under Section 5.8 and, in
such case, notice of such participation has been given to the
Administrative Agent and Celestica. Such participant shall not be
entitled to any vote as a Lender. The Borrowers shall not be obligated
to deal with any participant and shall be entitled to deal solely with
the Lender and the Lender shall not be released from any of its
obligations to the Borrowers as a result of such participation except
to the extent that the participant has fulfilled such obligations.
Such participants shall be bound to the same confidentiality
provisions with respect to the Facility, the Borrowers and the
Guarantors as are applicable to the Lenders.
13.12 CERTAIN REQUIREMENTS IN RESPECT OF MERGER, ETC.
No Borrower shall, and the Borrowers shall not permit any Restricted Subsidiary
(in each case, a "PREDECESSOR CORPORATION") to, enter into any transaction
(whether by way of liquidation, dissolution, amalgamation, merger, transfer,
sale or otherwise) whereby all or substantially all of its undertaking, property
and assets would become the property of any other Person or, in the case of any
such amalgamation or merger, of the continuing company resulting therefrom, or
whereby the obligation of the Predecessor Corporation to pay amounts under this
Agreement would become subject to novation or assumed or undertaken by any other
such Person or continuing company (a "Corporate Reorganization"), provided that
it may do so (and if the Predecessor Corporation is a Borrower or a Material
Restricted Subsidiary such Person or continuing company shall become a party to
this Agreement or to the Guarantee provided by such Material Restricted
Subsidiary, as the case may be) if:
(a) such other Person or continuing company (herein referred to as a
"SUCCESSOR CORPORATION") is a Borrower or Restricted Subsidiary;
(b) where required in the reasonable opinion of Lenders' Counsel, a
Successor Corporation which is a Borrower or Material Restricted
Subsidiary shall execute and/or deliver to the Administrative Agent an
agreement supplemental hereto or to the Guarantee or Guarantees
executed by a Predecessor Corporation or Predecessor Corporations, as
the case may be, in form reasonably satisfactory to the Administrative
Agent and execute and/or deliver such other instruments, if any, which
to the reasonable satisfaction of the Administrative Agent and in the
opinion of Lenders' Counsel are necessary to evidence (i) the
assumption by the Successor Corporation of liability under each Loan
Document to which the Predecessor Corporation is a party for the due
and punctual payment of all money payable by the Predecessor
Corporation thereunder, and (ii) the covenant of the
-109-
Successor Corporation to pay the same and (iii) the agreement of the
Successor Corporation to observe and perform all the covenants and
obligations of the Predecessor Corporation under each Loan Document to
which the Predecessor Corporation was a party and to be bound by all
the terms of each such Loan Document so far as they relate to the
Predecessor Corporation which instruments, if any, shall be in form
reasonably satisfactory to the Administrative Agent;
(c) such transaction would not have a Material Adverse Effect;
(d) all Other Taxes payable as a result of such transaction have been
paid;
(e) such transaction will not result in any claim for increased costs
pursuant to Section 5.5 or result in any Tax being levied on or
payable by the Administrative Agent or any Lender (except for Taxes on
the overall net income or capital of the Administrative Agent or a
Lender provided there is no increase in such Taxes as a result of such
transaction);
(f) such transaction will not cause, or have the result of the
Administrative Agent, the Lenders or any of them being in default
under, noncompliance with, or violation of, any Applicable Law;
(g) an opinion of Borrowers' counsel substantially in the form and as to
matters addressed in the opinion of Borrowers' Counsel delivered
pursuant to Section 6.1 shall have been delivered to the
Administrative Agent;
(h) each of the covenants set forth in Section 9.3 shall be satisfied on
an actual and PRO FORMA basis after giving effect to such transaction;
and
(i) no Default or Event of Default shall have occurred and be continuing
or will occur as a result of such transaction.
Sections 13.12(a), (b) and (g) shall not apply to (i) the respective liquidation
or dissolution of Celestica Ireland B.V. and Celestica Denmark A/S or (ii) the
merger of Celestica Japan EMS K.K. with and into Celestica Japan K.K.
This Section 13.12 shall not apply to permit any consolidation, amalgamation or
merger by or of Celestica unless, as the result thereof, the Successor
Corporation is Celestica.
A Successor Corporation shall not be required to comply with Section 13.12(b)
and (g) in respect of a Corporate Reorganization where one or more of the
participants in the subject Corporate Reorganization is a Predecessor
Corporation which is a Borrower or Restricted Subsidiary existing under the laws
of an Exempted Jurisdiction and which, prior to the completion of such Corporate
Reorganization, delivered a Guarantee in accordance with Section 9.1(m) (i) and
the Guarantee delivered by such Predecessor Corporation (the "PREDECESSOR
GUARANTEE") has not been terminated or released. In this paragraph, "EXEMPTED
JURISDICTION" means:
-110-
(i) the Province of Ontario, unless, following the date hereof, the
laws of such Province change in a manner that would adversely
affect the enforceability of the Predecessor Guarantee against
the Successor Corporation;
(ii) Canada, unless following the date hereof, the laws of Canada or
the laws of the Province of Canada which govern such Guarantee
change in a manner that would adversely affect the enforceability
of the Predecessor Guarantee against the Successor Corporation;
and
(iii) the State of Delaware, unless, following the date hereof, the
laws of such State change in a manner that would adversely affect
the enforceability of the Predecessor Guarantee against the
Successor Corporation.
13.13 SET-OFF
If an Event of Default has occurred, the Administrative Agent and Lender shall
have the right to set off against any accounts, credits or balances maintained
by the Obligors with the Administrative Agent or any Lender, any amount due
hereunder.
13.14 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
13.15 ADVERTISEMENTS
The Administrative Agent and the Lenders agree that prior to any advertisement
with respect to this transaction, the Administrative Agent shall obtain the
written consent of Celestica as to the form and content of such advertisement,
such consent not to be reasonably withheld and to be provided as soon as
practicable.
-111-
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
CELESTICA INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Corporate
Treasurer
DESIGNATED SUBSIDIARY
CELESTICA INTERNATIONAL INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Corporate
Treasurer
-112-
CIBC WORLD MARKETS, AS JOINT LEAD
ARRANGER AND SYNDICATION AGENT
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Director
RBC CAPITAL MARKETS, AS JOINT LEAD
ARRANGER AND CO-DOCUMENTATION AGENT
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
BANK OF AMERICA SECURITIES LLC, AS
JOINT LEAD ARRANGER AND CO-DOCUMENTATION
AGENT
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Principal
-113-
THE BANK OF NOVA SCOTIA,
AS ADMINISTRATIVE AGENT
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE FOR CANADIAN IMPERIAL BANK OF COMMERCE, AS LENDER
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Director
SIGNATURE PAGE FOR BANK OF AMERICA, N.A., CANADA BRANCH AS LENDER
BANK OF AMERICA, N.A., CANADA BRANCH
By: /s/ ▇▇▇▇▇▇ SALES ▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ Sales ▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
SIGNATURE PAGE FOR ROYAL BANK OF CANADA, AS LENDER
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Manager
SIGNATURE PAGE FOR EXPORT DEVELOPMENT CANADA, AS LENDER
EXPORT DEVELOPMENT CANADA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Financial Services
Manager
By: /s/ ▇▇▇▇▇▇ LOW
-------------------------------------
Name: ▇▇▇▇▇▇ Low
Title: Group Vice President
SIGNATURE PAGE FOR THE BANK OF NOVA SCOTIA, AS LENDER
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director -
Communications &
Technology
By: /s/ ▇▇▇▇▇ ORANGE
-------------------------------------
Name: ▇▇▇▇▇ Orange
Title: Associate Director -
Communications &
Technology
SIGNATURE PAGE FOR BANK OF MONTREAL, AS LENDER
BANK OF MONTREAL
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE FOR BANK OF TOKYO-MITSUBISHI (CANADA), AS LENDER
BANK OF TOKYO-MITSUBISHI (CANADA)
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE FOR DEUTSCHE BANK AG, CANADA BRANCH, AS LENDER
DEUTSCHE BANK AG, CANADA BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE FOR KEY CORPORATE CAPITAL, INC., AS LENDER
KEY CORPORATE CAPITAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
SIGNATURE PAGE FOR NATIONAL BANK OF CANADA, AS LENDER
NATIONAL BANK OF CANADA
By: /s/ ▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE FOR CITIBANK N.A., CANADA
BRANCH, AS LENDER
CITIBANK N.A., CANADA BRANCH
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Managing Director
By:
-------------------------------------
Name:
Title:
SCHEDULE C
APPLICABLE MARGIN, FACILITY FEE, UTILIZATION FEE AND LC FEE
----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇(▇) ▇▇▇▇▇ ▇ LEVEL VI
----------------------------------------------------------------------------------------------------------------------------------
Senior Debt Rating(2) > BBB+/Baa1 BBB/Baa2 BBB-/Baa3 ▇▇▇▇▇▇ ▇▇/▇▇▇ < BB/Ba2
(Standard & Poor's or Moody's)
----------------------------------------------------------------------------------------------------------------------------------
Utilization Fee(3) 25.0 bps 25.0 bps 25.0 bps 25.0 bps 25.0 bps 25.0 bps
----------------------------------------------------------------------------------------------------------------------------------
LIBOR / BA Applicable Margin(4)(5) 75.0 bps 85.0 bps 95.0 bps 125.0 bps 132.5 bps 160.0 bps
/LC Fee
----------------------------------------------------------------------------------------------------------------------------------
Prime / Base Rate Canada Applicable 0.0 bps 0.0 bps 0.0 bps 25.0 bps 32.5 bps 60.0 bps
Margin
----------------------------------------------------------------------------------------------------------------------------------
Facility Fee(6) 12.5 bps 15.0 bps 17.5 bps 25.0 bps 30.0 bps 40.0 bps
----------------------------------------------------------------------------------------------------------------------------------
NOTES:
1. Level IV will apply at closing.
2. In the event of a split rating, the higher rating shall apply, unless
there are two or more gradations between ratings, in which case, the
rating one level below the higher rating shall apply.
3. Utilization Fee is payable on the aggregate Commitments (after giving
effect to any cancellation, reduction, or increase pursuant to Sections
2.7, 2.8, and 2.23).
4. "Applicable Margin" expressed as basis points per annum.
5. "Applicable Margin" (for a LIBOR Advance, Banker's Acceptance Advance,
a Prime Rate Advance or a Base Rate Canada Advance or for the LC Fee)
shall increase by 35.0 bps on the date that the Facility ceases to be
revolving in nature pursuant to Section 2.8(b)(v).
6. Facility Fee is payable regardless of usage on the aggregate
Commitments (after giving effect to any cancellation, reduction, or
increase pursuant to Sections 2.7 and 2.8) regardless of usage.
SCHEDULE N
CALCULATION OF THE MANDATORY COST
1. GENERAL
The Mandatory Cost is the weighted average of the rates for each Lender
calculated below by the Administrative Agent on the first day of a
Term. The Administrative Agent must distribute each amount of Mandatory
Cost among the Lenders on the basis of the rate for each Lender.
2. FOR A LENDER LENDING FROM THE U.K.
a. The relevant rate for a Lender lending from the U.K. is
calculated in accordance with the following formulae:
for a Loan in Sterling:
AB + C(B-E) = E x 0.01 per cent. per annum
----------------------
100-(a + C)
for any other Loan:
E x 0.01 per cent. per annum
--------
300
where on the day of application of the formula:
A is the percentage of that Lender's eligible liabilities (in
excess of any stated minimum) which the Bank of England
requires it to hold on a non-interest-bearing deposit
account in accordance with its cash ratio requirements;
B is LIBOR for that Term;
C is the percentage of that Lender's eligible liabilities
which the Bank of England requires it to place as a special
deposit;
D is the interest rate per annum allowed by the Bank of
England on a special deposit; and
E is calculated by the Administrative Agent as being the
average of the rates of charge supplied by the Lenders to
the Administrative Agent under paragraph (d) below and
expressed in pounds per L1 million.
b. For the purposes of this paragraph 2:
i. ELIGIBLE LIABILITIES and SPECIAL DEPOSIT have the meanings
given to them at the time of application of the formula by
the Bank of England;
ii. FEES RULES means the then current rules on periodic fees in
the Supervision Manual of the FSA Handbook; and
iii. TARIFF base has the meaning given to it in the fees rules.
c. i. In the application of the formulae, A, B, C and D are
included as figures and not as percentages, e.g. if
A = 0.5% and B = 15%, AB is calculated as 0.5 x 15.
A negative result obtained by subtracting D from B is
taken as zero.
ii. Each date calculated in accordance with a formula is,
if necessary, rounded upward to four decimal places.
d. i. Each Lender must supply to the Administrative Agent the
rate of charge payable by that Lender to the Financial
Services Authority under the fees rules (calculated by
that Lender as being the average of the rates of charge
applicable to that Lender but, for this purpose, applying
any applicable discount and ignoring any minimum fee
required under the fees rules) and expressed in pounds per
L1 million of the tariff base of that Lender.
ii. Each Lender must promptly notify the Administrative Agent
of any change to the rate of charge.
e. i. Each Lender must supply to the Administrative Agent the
information required by it to make a calculation of the
rate for that Lender. The Administrative Agent may assume
that this information is correct in all respects.
ii. If a Lender fails to do so, the Administrative Agent
may assume that the Lender's obligations in respect of
cash ratio deposits, special deposits and the fees rules
are the same as those of a typical bank from its
jurisdiction of incorporation with a lending office
in the U.K.
iii. The Administrative Agent has no liability to any Party if
its calculation over or under compensates any Lender.
2
3. FOR A LENDER LENDING FROM A LENDING OFFICE IN A PARTICIPATING MEMBER
STATE.
a. The relevant rate for a Lender lending from a lending office in
a Participating Member State is the percentage rate per annum
notified by that Lender to the Administrative Agent as its cost
of complying with the minimum reserve requirements of the
European Central Bank.
b. If a Lender fails to specify a rate under paragraph (a) above,
the Administrative Agent will assume that the Lender has not
incurred any such cost.
4. CHANGES
The Administrative Agent may, after consultation with the Company
and the Lenders, notify all the Parties of any amendment to this
Schedule which is required to reflect:
a. any change in law or regulation; or
b. any requirement imposed by the Bank of England, the Financial
Services Authority or the European Central Bank (or, in any
case, any successor authority).
Any notification will be, in the absence of manifest error, conclusive
and binding on all the Parties.
3