Exhibit 10-G
CONFORMED COPY
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$2,000,000,000
SHORT TERM REVOLVING CREDIT AGREEMENT
Dated as of April 21, 1998
CHRYSLER FINANCIAL CORPORATION and
CHRYSLER CREDIT CANADA LTD.,
as BORROWERS
ABN AMRO BANK, N.V.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA,
BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF COMMERCE,
CREDIT SUISSE FIRST BOSTON, FIRST CHICAGO NBD CORPORATION,
THE LONG TERM CREDIT BANK OF JAPAN, LIMITED,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK, N.A.,
SOCIETE GENERALE, CHICAGO BRANCH and THE TORONTO DOMINION BANK,
as MANAGING AGENTS
ROYAL BANK OF CANADA,
as CANADIAN ADMINISTRATIVE AGENT
THE CHASE MANHATTAN BANK,
as ADMINISTRATIVE AGENT
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS......................................... 1
1.1 Defined Terms......................................... 1
1.2 Other Definitional Provisions......................... 17
SECTION 2. THE U.S. COMMITMENTS................................ 17
2.1 The U.S. Commitments.................................. 17
2.2 Procedure for Borrowing............................... 17
2.3 Conversion and Continuation Options................... 18
2.4 Minimum Amount of Eurodollar Tranches................. 18
2.5 Certain Matters Relating to Eurodollar Loans ......... 18
SECTION 3. THE CANADIAN COMMITMENTS............................ 20
3.1 The Canadian Commitments.............................. 20
3.2 Procedure for C$ R/C Loan Borrowing................... 20
3.3 Bankers' Acceptances.................................. 20
3.4 Conversion Option..................................... 23
3.5 Currency Fluctuations, etc............................ 24
SECTION 4. GENERAL PROVISIONS.................................. 24
4.1 Evidence of Debt...................................... 24
4.2 Repayment of Loans.................................... 25
4.3 Interest Rate and Payment Dates....................... 25
4.4 Lending Procedures.................................... 26
4.5 Facility Fees......................................... 26
4.6 Termination or Reduction of Commitments............... 27
4.7 Optional Prepayments.................................. 27
4.8 Pro Rata Treatment and Payments....................... 27
4.9 Computation of Interest and Fees...................... 28
4.10 Increased Costs...................................... 29
4.11 Changes in Capital Requirements...................... 29
4.12 Indemnity............................................ 31
4.13 Taxes................................................ 31
4.14 Use of Proceeds...................................... 33
4.15 Replacement of Banks................................. 33
SECTION 5. REPRESENTATIONS AND WARRANTIES...................... 33
5.1 Financial Condition................................... 33
5.2 No Change............................................. 34
5.3 Corporate Existence................................... 34
5.4 Corporate Authorization; No Violation................. 34
5.5 Government Authorization.............................. 34
5.6 Federal Regulations................................... 34
5.7 Enforceable Obligations............................... 34
5.8 No Material Litigation................................ 35
5.9 ERISA................................................. 35
5.10 Investment Company Act; Other Regulations............ 35
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5.11 Existing Financial Covenants......................... 35
SECTION 6. CONDITIONS PRECEDENT................................ 35
6.1 Conditions to Effectiveness........................... 35
6.2 Conditions to Each Loan............................... 37
SECTION 7. AFFIRMATIVE COVENANTS............................... 37
7.1 Financial Statements, etc............................. 37
7.2 Maintenance of Existence.............................. 38
7.3 Notices............................................... 38
SECTION 8. NEGATIVE COVENANTS.................................. 39
8.1 Debt to Equity Ratio.................................. 39
8.2 Limitation on Fundamental Change...................... 39
8.3 Limitation on Liens................................... 39
8.4 Additional Covenants.................................. 41
SECTION 9. EVENTS OF DEFAULT................................... 42
SECTION 10. THE AGENTS......................................... 44
10.1 Appointment.......................................... 44
10.2 Delegation of Duties................................. 44
10.3 Exculpatory Provisions............................... 44
10.4 Reliance by Agents and CASG.......................... 45
10.5 Notice of Default.................................... 45
10.6 Non-Reliance on Agents, Other Banks and CASG......... 45
10.7 Indemnification...................................... 46
10.8 Agents in their Individual Capacity.................. 46
10.9 Successor Agents..................................... 46
10.10 The Managing Agents................................. 47
SECTION 11. GUARANTEE.......................................... 47
11.1 Guarantee............................................ 47
11.2 No Subrogation, Contribution, Reimbursement or
Indemnity 47
11.3 Amendments, etc. with respect to the CCCL Obligations 48
11.4 Guarantee Absolute and Unconditional................. 48
11.5 Reinstatement........................................ 49
11.6 Payments............................................. 49
11.7 Judgments Relating to Guarantee...................... 49
11.8 Independent Obligations.............................. 50
SECTION 12. MISCELLANEOUS...................................... 50
12.1 Amendments and Waivers............................... 50
12.2 Notices.............................................. 51
12.3 Clearing Accounts.................................... 52
12.4 No Waiver; Cumulative Remedies....................... 52
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12.5 Survival of Representations and Warranties........... 52
12.6 Payment of Expenses.................................. 52
12.7 Successors and Assigns............................... 53
12.8 Right of Set-off..................................... 54
12.9 Adjustments.......................................... 55
12.10 New Banks; Commitment Increases; Commitment
Reallocations....................................... 55
12.11 Tax Forms........................................... 56
12.12 Counterparts........................................ 57
12.13 Governing Law....................................... 57
12.14 Submission to Jurisdiction; Waivers................. 57
12.15 Integration......................................... 57
12.16 Judgments Relating to CCCL.......................... 57
12.17 WAIVERS OF JURY TRIAL............................... 58
SCHEDULES
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SCHEDULE I Commitments
SCHEDULE II Existing Financial Covenants
EXHIBITS
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EXHIBIT A Addendum
EXHIBIT B Closing Certificate
EXHIBIT C-1 Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
EXHIBIT C-2 Opinion of General Counsel of CFC
EXHIBIT C-3 Opinion of Canadian Counsel to CCCL
EXHIBIT D-1 Assignment and Acceptance
EXHIBIT D-2 New Bank Supplement
EXHIBIT D-3 Commitment Increase Supplement
EXHIBIT D-4 Commitment Reallocation Supplement
EXHIBIT E Promissory Note
SHORT TERM REVOLVING CREDIT AGREEMENT dated as of April 21, 1998
among CHRYSLER FINANCIAL CORPORATION, a Michigan corporation ("CFC"),
CHRYSLER CREDIT CANADA LTD. ("CCCL"), a Canadian corporation, the several
commercial banks from time to time parties to this Agreement (as more
specifically defined below, the "Banks"), ABN AMRO BANK, N.V., BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK, THE
BANK OF NOVA SCOTIA, BANQUE NATIONALE DE PARIS, CANADIAN IMPERIAL BANK OF
COMMERCE, CREDIT SUISSE FIRST BOSTON, FIRST CHICAGO NBD CORPORATION, THE LONG
TERM CREDIT BANK OF JAPAN, LIMITED, ▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, NATIONSBANK, N.A., SOCIETE GENERALE, CHICAGO BRANCH and THE TORONTO
DOMINION BANK, as Managing Agents (in such capacity, the "Managing Agents"),
ROYAL BANK OF CANADA, a Canadian chartered bank ("Royal"), as Canadian
administrative agent for the C$ Banks (as defined below) hereunder, and THE
CHASE MANHATTAN BANK, a New York banking corporation ("Chase"), as
administrative agent for the Banks hereunder.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms defined in
the caption to this Agreement shall have the meanings set forth therein, and
the following terms have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance Fee": the fee payable in C$ to each C$ Bank
in respect of Bankers' Acceptances computed in accordance with
Section 3.3.
"Accumulated Funding Deficiency": any "accumulated
funding deficiency" as defined in Section 302 of ERISA.
"ACH": an Automated Clearing House.
"Addendum": an instrument, substantially in the form of
Exhibit A, by which a Bank becomes a party to this Agreement.
"Administrative Agent": The Chase Manhattan Bank and its
affiliates, in their respective capacities as administrative
agent for the Banks under this Agreement and arranger of the
Commitments, together with any of their respective successors.
"Affected Bank": as defined in Section 2.5(b).
"Agents": the collective reference to the Administrative
Agent and the Canadian Administrative Agent.
"Aggregate Canadian Extensions of Credit": with respect
to any C$ Bank, at any time, the aggregate principal amount of
all C$ Loans (US$ Equivalent) made by such Bank then outstanding.
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"Aggregate U.S. Extensions of Credit": with respect to
any US$ Bank, at any time, the aggregate principal amount of
all U.S. R/C Loans made by such Bank then outstanding.
"Agreement": this Short Term Revolving Credit Agreement,
as the same may be amended, modified or supplemented from time
to time.
"Applicable BA Discount Rate":
(a) with respect to any Schedule I C$ Bank, as applicable to a
Bankers' Acceptance being purchased by such Schedule I C$ Bank on any
day, the average (as determined by the Canadian Administrative Agent) of
the respective percentage discount rates (expressed to two decimal
places and rounded upward, if necessary, to the nearest 1/100th of 1%)
quoted to the Canadian Administrative Agent by each Schedule I C$
Reference Bank as the percentage discount rate at which such Schedule I
C$ Reference Bank would, in accordance with its normal practices, at or
about 10:00 A.M., Toronto time, on such day, be prepared to purchase
bankers' acceptances accepted by such Schedule I Reference C$ Bank
having a maturity date comparable to the maturity date of such Bankers'
Acceptance; and
(b) with respect to any Schedule II C$ Bank, as applicable to a
Bankers' Acceptance being purchased by such Schedule II C$ Bank on any
day, the average (as determined by the Canadian Administrative Agent) of
the respective percentage discount rates (expressed to two decimal
places and rounded upward, if necessary, to the nearest 1/100th of 1%)
quoted to the Canadian Administrative Agent by each Schedule II C$
Reference Bank as the percentage discount rate at which such Schedule II
C$ Reference Bank would, in accordance with its normal practices, at or
about 10:00 A.M., Toronto time, on such day, be prepared to purchase
bankers' acceptances accepted by such Schedule II Reference C$ Bank
having a maturity date comparable to the maturity date of such Bankers'
Acceptance.
"Applicable Margin": with respect to each Eurodollar Loan or
Bankers' Acceptance at any date, the applicable percentage per annum set
forth below based upon the Status and U.S. Utilization or Canadian
Utilization, as applicable, on such date (provided that if the
Commitments have been terminated prior to such date, the U.S.
Utilization and Canadian Utilization for such date shall be deemed to be
greater than 50%):
Level I Level II Level III Level IV Level V
U.S./Canadian Status Status Status Status Status
------------- ------- -------- --------- -------- -------
Less than or equal
to 50%: 0.1500% 0.1700% 0.2450% 0.3000% 0.4750%
Greater than 50%: 0.2750% 0.2950% 0.3700% 0.4250% 0.6000%
"Assessment Rate": for any date the annual rate (rounded upwards,
if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that
will be employed in determining amounts payable by Chase to the Federal
Deposit Insurance Corporation (or any successor) for insurance by such
Corporation (or any successor) of time deposits made in Dollars at
Chase's domestic offices.
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"Available Canadian Commitment": as to any C$ Bank, at a particular
time, an amount equal to the excess, if any, of (a) the amount of such
Bank's Canadian Commitment at such time over (b) the Aggregate Canadian
Extensions of Credit of such Bank at such time.
"Available U.S. Commitment": as to any US$ Bank, at a particular
time, an amount equal to the excess, if any, of (a) the amount of such
Bank's U.S. Commitment at such time over (b) the Aggregate U.S.
Extensions of Credit of such Bank at such time.
"BA Discount Proceeds": in respect of any Bankers' Acceptance to be
purchased by a C$ Bank on any day under Section 3.3, an amount (rounded
to the nearest whole Canadian cent, and with one-half of one Canadian
cent being rounded up) calculated on such day by dividing:
(A) the face amount of such Bankers' Acceptance; by
(B) the sum of one plus the product of:
(i) the Applicable BA Discount Rate (expressed as a
decimal) applicable to such Bankers' Acceptance; and
(ii) a fraction, the numerator of which is the number of
days remaining in the term of such Bankers' Acceptance
and the denominator of which is 365;
with such product being rounded up or down to the
fifth decimal place and .000005 being rounded up.
"Bankers' Acceptance": a ▇▇▇▇ of exchange denominated in C$ drawn
by CCCL and accepted by a C$ Bank pursuant to Section 3.3.
"Banking Day": in respect of any city, any day on which commercial
banks are open for business (including dealings in foreign exchange and
foreign currency deposits) in that city.
"Bank Rate": the upper limit of the Bank of Canada operating band
for overnight loans as announced from time to time.
"Banks": as defined in the caption to this Agreement; provided,
that each reference herein to any Bank shall be deemed to be a reference
to each US$ Bank and to each C$ Bank unless the context otherwise
requires (in which case such reference shall be deemed to be a reference
only to each US$ Bank or to each C$ Bank, as applicable).
"Base Rate": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Effective Federal Funds Rate in effect on such
day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by Chase
as its prime rate in effect at its principal office in New York City;
each change in the Prime Rate shall be effective on the date such change
is publicly announced; "Base CD Rate" shall mean the sum of (a) the
product of (i) the Three-Month Secondary CD Rate and (ii) Statutory
Reserves and (b) the Assessment Rate; and "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for three-
4
month certificates of deposit reported as being in effect on such day
(or, if such day shall not be a Business Day, the next preceding
Business Day) by the Federal Reserve Board through the public
information telephone line of the Federal Reserve Bank of New York
(which rate will, under the current practices of the Federal Reserve
Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so
reported for such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at
approximately 10:00 A.M., New York City time, on such day (or, if such
day shall not be a Business Day, on the next preceding Business Day) by
the Administrative Agent from three New York City negotiable certificate
of deposit dealers of recognized standing selected by it. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent clearly demonstrable error)
that it is unable to ascertain the Base CD Rate or the Effective Federal
Funds Rate or both for any reason, including the inability or failure of
the Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the Base Rate shall be determined without regard
to clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability no
longer exist. Any change in the Base Rate due to a change in the Prime
Rate, the Three-Month Secondary CD Rate or the Effective Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate, the Three-Month Secondary CD Rate or the Effective Federal
Funds Rate, respectively.
"Base Rate Loans": U.S. R/C Loans at such time as they bear
interest at a rate based upon the Base Rate.
"Borrowing Date": any Business Day prior to the Termination Date
specified in a notice pursuant to Section 2.2, 3.2 or 3.3 as a date on
which a Facility Borrower requests Loans to be made hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by
law to close, except that, (a) when used in connection with a Eurodollar
Loan with respect to which the Eurodollar Rate is determined based upon
the Telerate screen in accordance with the definition of Eurodollar
Rate, "Business Day" shall mean any Business Day on which dealings in
foreign currencies and exchange between banks may be carried on in
London, England and New York, New York and (b) when used in connection
with a C$ Loan, "Business Day" shall mean a day on which banks are open
for business in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ but excludes Saturday, Sunday
and any other day which is a legal holiday in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇.
"C$ Bank": each Bank designated as a "C$ Bank" on Schedule I, as
such Schedule may be modified from time to time pursuant to Section 12.7
or 12.10.
"C$ Commitment Percentage": as to any C$ Bank at any time, the
percentage of the aggregate Canadian Commitments then constituted by
such Bank's Canadian Commitment.
"C$ Loans": the collective reference to C$ R/C Loans and Bankers'
Acceptances. For the purposes of this Agreement, the principal amount of
any C$ Loan constituting a Bankers' Acceptance shall be deemed to be the
face amount of such Bankers' Acceptance.
5
"C$ Prime Loans": C$ Loans at such time as they bear interest at a
rate based upon the Canadian Prime Rate.
"C$ R/C Loans": as defined in Section 3.1.
"Canadian Administrative Agent": Royal, in its capacity as Canadian
administrative agent for the C$ Banks under this Agreement, together
with any of its successors.
"Canadian Calculation Date": the Business Day immediately preceding
the Effective Date and the last Business Day of each calendar month.
"Canadian Commitment": as to any C$ Bank, its obligation to make C$
R/C Loans and purchase Bankers' Acceptances to or from CCCL hereunder in
an aggregate principal amount (US$ Equivalent) at any one time
outstanding not to exceed the amount (expressed in Dollars) set forth
opposite such Bank's name on Schedule I, as such amount may be changed
from time to time as provided herein.
"Canadian Dollars" or "C$": lawful currency of Canada.
"Canadian Exchange Rate": on a particular date, the rate at which
C$ may be exchanged into Dollars, determined by reference to the Bank of
Canada noon rate as published on the Reuters Screen page BOFC. In the
event that such rate does not appear on such Reuters page, the "Canadian
Exchange Rate" shall be determined by reference to any other means (as
selected by the Canadian Administrative Agent) by which such rate is
quoted or published from time to time by the Bank of Canada; provided,
that if at the time of any such determination, for any reason, no such
exchange rate is being quoted or published, the Canadian Administrative
Agent may use any reasonable method as it deems applicable to determine
such rate, and such determination shall be conclusive absent manifest
error.
"Canadian Facility Fee": as defined in Section 4.5(b).
"Canadian Prime Rate": with respect to a C$ Prime Loan, on any day,
the greater of (a) the annual rate of interest announced from time to
time by Royal as its reference rate then in effect for determining
interest rates on C$ denominated commercial loans in Canada and (b) the
annual rate of interest equal to the sum of (i) the CDOR Rate and (ii)
0.75% per annum.
"Canadian Register": as defined in Section 12.7(c).
"Canadian Reset Date" as defined in Section 3.5(a).
"Canadian Utilization": with respect to any Utilization Period, the
percentage equivalent of a fraction (a) the numerator of which is the
average daily principal amount of C$ Loans (US$ Equivalent) outstanding
during such Utilization Period and (b) the denominator of which is the
average daily amount of the aggregate Canadian Commitments of all C$
Banks during such Utilization Period.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests
6
in a Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"CASG": The Chase Manhattan Bank Loan and Agency Services Group
(and any successor).
"CCCL Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of
the C$ Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to CCCL, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the
C$ Loans and all other obligations and liabilities of CCCL to any Agent
or to any Bank, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, this Agreement or any other
document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all
fees, charges and disbursements of counsel to any Agent or to any Bank
that are required to be paid by CCCL pursuant to this Agreement) or
otherwise.
"CDOR Rate": on any day, the annual rate of interest which is the
rate based on an average 30 day rate applicable to C$ bankers'
acceptances appearing on the "Reuters Screen CDOR Page" (as defined in
the 1991 Definitions published by the International Swaps and
Derivatives Association, Inc., as modified and amended from time to
time) as of 10:00 A.M., Toronto time, on such day, or if such day is not
a Business Day, then on the immediately preceding Business Day;
provided, however, if such rate does not appear on the Reuters Screen
CDOR Page as contemplated, then the CDOR Rate on any day shall be
calculated as the arithmetic mean of the 30 day rates applicable to C$
bankers' acceptances quoted by the Schedule I C$ Reference Banks as of
10:00 A.M., Toronto time, on such day, or if such day is not a Business
Day, then on the immediately preceding Business Day. If less than all of
the Schedule I C$ Reference Banks quote the aforementioned rate on the
days and at the times described above, the "CDOR Rate" shall be such
other rate or rates as the Canadian Administrative Agent and CCCL may
agree.
"CFC Affiliate": any Person that, directly or indirectly, controls
or is controlled by or is under common control with CFC (including,
without limitation, Chrysler and its subsidiaries, but excluding any
Subsidiary). For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the
power, directly or indirectly, either to (a) vote 20% or more of the
securities (or other equity interests) of such Person having ordinary
voting power or (b) direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities (or other equity interests) or by contract or otherwise.
"Change of Control": any of the following events or circumstances:
(a) any Person or "group" (within the meaning of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended) shall either (i)
acquire beneficial ownership of more than 50% of any outstanding class
of common stock of Chrysler having ordinary voting power in the election
of directors of Chrysler or (ii) obtain the power (whether or not
exercised) to elect a majority of Chrysler's directors or (b) the Board
of Directors of Chrysler shall not consist of a majority of Continuing
Directors. As used in this definition, "Continuing Directors" shall mean
the directors of
7
Chrysler on the Effective Date and each other director of Chrysler, if
such other director's nomination for election to the Board of Directors
of Chrysler is recommended by a majority of the then Continuing
Directors.
"Chartered Bank": a bank named on Schedule I or Schedule II to the
Bank Act (Canada).
"Chrysler": Chrysler Corporation, a Delaware corporation.
"Clearing Account": as to any US$ Bank, the bank account designated
in its Addendum, or such other bank account as such Bank shall designate
in writing to the Administrative Agent from time to time, provided that
such other bank account shall be maintained at the office of an ACH
member.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commercial Bank": (a) with respect to the U.S. Commitments and the
U.S. R/C Loans thereunder, any Person (i) licensed to engage in
commercial banking business and (ii) which on the date it becomes a Bank
(or purchases a participation) hereunder (x) is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes and (y) is entitled to an exemption
from, or is not subject to, United States backup withholding tax and (b)
with respect to the Canadian Commitments and the C$ Loans thereunder,
any Chartered Bank which (except in the case of participations) has a
Related US$ Bank.
"Commitment": with respect to any Bank, the sum of such Bank's U.S.
Commitment and Canadian Commitment.
"Commitment Percentage": as to any Bank at any time, the percentage
of the aggregate Commitments then constituted by such Bank's Commitment.
"Commitment Period": as to the Commitment of any Bank, the period
from and including the Effective Date (or, in the case of an assignee
that is not already a Bank and any New Bank, from the date that such
Person becomes party to this Agreement as provided in Section 12.7 or
12.10, as applicable) to but not including the Termination Date or such
earlier date as the Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with CFC within the meaning
of Section 4001 of ERISA or is part of a group which includes CFC and is
treated as a single employer under Section 414 of the Code.
"Contractual Obligation": as to any Person, any enforceable
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which it
or any of its property is bound.
"D&P": Duff & ▇▇▇▇▇▇ Credit Rating Company and its successors.
"Debt": at any date, the amount which would appear in accordance
with GAAP on a consolidated balance sheet of CFC and its Subsidiaries on
such date opposite the heading "debt" (or any similar item).
8
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, lapse of time, or both, or the
happening of any other condition, has been satisfied.
"Defease" or "Defeasance": with respect to any Bankers' Acceptance
accepted by a C$ Bank, the payment by CCCL to such C$ Bank of an amount
equal to the aggregate face amount of CCCL's obligations pursuant to
such Bankers' Acceptance which amount shall be (a) held by such C$ Bank
for application, at the maturity of such Bankers' Acceptance, to the
payment of such C$ Bank's obligations with respect to such Bankers'
Acceptance and (b) invested by such C$ Bank in bankers' acceptances or
cash equivalents reasonably acceptable to such C$ Bank as directed by
CCCL, provided that in the case of investments in bankers' acceptances,
(i) such investments shall be available to such C$ Bank on customary
terms and (ii) the amounts and maturities thereof shall be no greater or
longer than the amount and maturity of such Bankers' Acceptance. Each of
CCCL and each C$ Bank hereby agrees that, upon CCCL effecting the
Defeasance of any Bankers' Acceptance accepted by such C$ Bank, CCCL
shall be released from all obligations to such C$ Bank in any way
relating to such Bankers' Acceptance. In addition, each such C$ Bank
agrees that it will, at the maturity of the applicable Bankers'
Acceptance, pay to CCCL an amount equal to the income earned by such C$
Bank on any investments made pursuant to clause (b) of this definition.
"Designated Canadian Commitment Amount": with respect to each C$
Bank at a particular time, the Designated Canadian Percentage of such C$
Bank's Canadian Commitment then in effect; provided, that in the event
that C$ Loans shall be outstanding after the Canadian Commitments shall
have been terminated, the "Designated Canadian Commitment Amount" of
such C$ Bank, on any day, shall be deemed to equal the Designated
Canadian Percentage of the aggregate principal amount of the C$ Loans
(US$ Equivalent) made by such C$ Bank outstanding on such day.
"Designated Canadian Percentage": a percentage which may be
specified by each C$ Bank, and may be changed from time to time, by
written notice to each Facility Borrower and each Agent; provided, that
if no such percentage has been so specified, such percentage shall be
deemed to be zero. Each such notice shall, unless otherwise agreed by
each Facility Borrower, be furnished within a 30-day period commencing
on the Effective Date or commencing on an anniversary of the Effective
Date.
"Dollars" or "$": lawful currency of the United States of America.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"E-mail Bank": any Bank that has authorized use of an electronic
mail address as its notice address for purposes of this Agreement, as
specified in an administrative questionnaire (or other written notice)
delivered to the Administrative Agent and CFC, provided that such
authorization has not subsequently been rescinded pursuant to a written
notice submitted by such Bank to the Administrative Agent and CFC.
"Effective Date": subject to satisfaction of the conditions
specified in Section 6.1, April 21, 1998.
9
"Effective Federal Funds Rate": for any day, the weighted average
of the rates on overnight Federal funds transactions between members of
the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average quotations for the day of such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Equity": at any date, the amount which would appear in accordance
with GAAP on a consolidated balance sheet of CFC and its Subsidiaries on
such date opposite the heading "total shareholders' investment" (or any
similar item).
"Eurodollar Loan": any U.S. Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Rate": in the case of any Eurodollar Loan, with respect
to each day during each Interest Period (other than any seven-day
Interest Period) pertaining to such Eurodollar Loan, the rate of
interest determined on the basis of the rate for deposits in Dollars for
a period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period, provided, that in the event that such rate does
not appear on Page 3750 of the Telerate Service (or otherwise on such
service), the "Eurodollar Rate" shall be determined by reference to such
other publicly available service for displaying eurodollar rates as may
be agreed upon by the Administrative Agent and CFC. In the absence of
such agreement, and in the case of any seven-day Interest Period
pertaining to such Eurodollar Loan, the "Eurodollar Rate" shall instead
be the rate per annum equal to the average (rounded upward, if
necessary, to the nearest 1/100th of 1%) of the respective rates
notified to the Administrative Agent by each of the Eurodollar Reference
Banks as the rate at which such Eurodollar Reference Bank is offered
Dollar deposits at or about 10:00 A.M., New York City time, two Business
Days prior to the beginning of the relevant Interest Period, in the
interbank eurodollar market where the eurodollar and foreign currency
and exchange operations in respect of its Eurodollar Loans are then
being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable to
the amount of its Eurodollar Loan to be outstanding during such Interest
Period.
"Eurodollar Reference Banks": Chase, Royal and Credit Suisse First
Boston; provided, that, for the purposes of determining the Eurodollar
Rate with respect to any seven-day Interest Period, Chase shall be the
sole Eurodollar Reference Bank.
"Eurodollar Tranche": the collective reference to Eurodollar Loans
having the same Interest Period, whether or not originally made on the
same day.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or the happening of any other condition, has been
satisfied.
10
"Excess U.S. Utilization Period": any Utilization Period with
respect to which the U.S. Utilization exceeds 50%.
"Existing Agreement": the Short Term Revolving Credit Agreement
dated as of April 24, 1997 among CFC, CCCL, the banks parties thereto,
Royal, as Canadian Administrative Agent, and Chase, as Administrative
Agent.
"Facility Borrowers": the collective reference to CFC and CCCL.
"Facility Fee": any U.S. Facility Fee or Canadian Facility Fee.
"Facility Fee Rate": for any day, the rate per annum set forth
below opposite the Status in effect on such day:
Facility Fee
Status Rate
------ ------------
Level I Status 0.0500%
Level II Status 0.0550%
Level III Status 0.0800%
Level IV Status 0.1000%
Level V Status 0.1500%
"Federal Reserve Board": the Board of Governors of the Federal
Reserve System of the United States.
"Final Date": the later of (a) the Termination Date and (b) the
date on which all of the Loans shall have been paid in full.
"Finance Business": (a) the small loan, personal finance, consumer
finance or installment credit business (including the business of making
collateral loans secured by credit obligations or personal property),
(b) the sales finance business and the business of purchasing and
selling notes and accounts receivable (whether or not repayable in
installments) and interests therein, (c) the commercial financing and
factoring business as generally conducted, including the leasing of
tangible personal property, and (d) any business (including, without
limitation, securitization and other receivables-based transactions)
related to or conducted in connection with any business of the character
referred to in the foregoing clauses (a), (b) and (c) other than
insurance underwriting.
"Finance-Related Insurance Business": the business of (a) insuring
articles and merchandise the sale or leasing of which is financed in the
ordinary course of the Finance Business, (b) insuring the lives of
individuals who are liable for the payment of the amounts owing on such
sales or leases and writing accident and health insurance on such
individuals, (c) automobile dealership property, liability, workers
compensation and related insurance, (d) motor
11
vehicle physical damage and liability insurance, and such other
insurance business that is not described in clause (a), (b), (c) or (d)
above to the extent that such insurance business does not produce at any
time aggregate premiums written (net of reinsurance ceded) by all
Subsidiaries in an amount greater than 50% of the aggregate amount of
all premiums written (net of reinsurance ceded) at such time in all of
the insurance business of such Subsidiaries.
"Finance Subsidiary": any Domestic Subsidiary that is engaged
primarily in the Finance Business.
"Financial Covenant": a covenant on the part of CFC or any
Significant Subsidiary to the general effect that such party shall
maintain as of a specified date or dates or for a specified period or
periods, (a) a specified minimum net worth, (b) a ratio of debt to net
worth, earnings or cash flow not in excess of a specified maximum, (c)
current assets in an amount not less than a specified amount in excess
of current liabilities, (d) a specified minimum amount of earnings or
cash flow, (e) a ratio of earnings or cash flow to interest expense or
fixed charges not less than a specified minimum, or (f) any other
specified ratio, amount or measure for the purpose of requiring
maintenance of a specified financial condition or financial performance;
provided, however, that any covenant requiring specified conditions to
be satisfied before dividends may be made shall not constitute a
"Financial Covenant".
"Fitch": Fitch Investors Service, Inc. and its successors.
"Foreign Subsidiary": any Subsidiary that (a) is organized under
the laws of any jurisdiction outside the United States of America,
Puerto Rico and Canada, or (b) conducts the major portion of its
business outside the United States of America, Puerto Rico and Canada.
"GAAP": generally accepted accounting principles in the United
States of America (and, to the extent applicable, Canada) in effect from
time to time, except that for the purposes of determining compliance
with the covenants set forth in Section 8, "GAAP" shall mean generally
accepted accounting principles in the United States of America (and, to
the extent applicable, Canada) in effect on December 31, 1997 applied
consistently with those used in compiling the financial statements
included in the 1997 Annual Report.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Indebtedness": as applied to any Person at any date, (a)
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services which would appear on a
consolidated balance sheet of such Person (or, in the case of CFC and
its Subsidiaries, CFC) prepared in accordance with GAAP, (b) obligations
of such Person under leases which appear as capital leases on a
consolidated balance sheet of such Person prepared in accordance with
GAAP and (c) any withdrawal obligation of such Person or any Commonly
Controlled Entity thereof to a Multiemployer Plan.
"Initial Offered Canadian Commitment Amount": with respect to each
C$ Bank, the amount specified opposite such Bank's name on Schedule I in
the column captioned "Initial Offered Canadian Commitment Amount", which
amount shall equal 25% of the aggregate Canadian commitment amount
offered by such Bank in connection with the initial syndication of
12
the Canadian Commitments and the initial syndication of the "Canadian
Commitments" under the Long Term Revolving Credit Agreement.
"Interest Period": with respect to any Eurodollar Tranche:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such
Eurodollar Tranche and ending seven days or one, two, three or six
months thereafter, as selected by CFC in its notice of borrowing or
notice of conversion, as the case may be, given with respect
thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar
Tranche and ending seven days or one, two, three or six months
thereafter, as selected by CFC by irrevocable notice to the
Administrative Agent not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto
(or, if no such period is specified, ending one month thereafter);
provided that, the foregoing provisions are subject to the
following:
(A) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(B) no Interest Period may be selected by CFC if such Interest
Period would end after the Maturity Date; and
(C) any Interest Period of at least one month's duration that
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the relevant calendar month.
"Level": any of ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ or Level V.
"Level I": any of the following long-term senior unsecured debt
ratings: A or better by S&P, A2 or better by Moody's, A or better by D&P
or A or better by Fitch.
"Level II": any of the following long-term senior unsecured debt
ratings: A- by S&P, A3 by Moody's, A- by D&P or A- by Fitch.
"Level III": any of the following long-term senior unsecured debt
ratings: BBB+ or BBB by S&P, Baa1 or Baa2 by Moody's, BBB+ or BBB by D&P
or BBB+ or BBB by Fitch.
"Level IV": any of the following long-term senior unsecured debt
ratings: BBB- by S&P, Baa3 by Moody's, BBB- by D&P or BBB- by Fitch.
13
"Level V": any of the following long-term senior unsecured debt
ratings: BB+ or lower (or unrated) by S&P, Ba1 or lower (or unrated) by
Moody's, BB+ or lower (or unrated) by D&P or BB+ or lower (or unrated)
by Fitch.
"Lien": with respect to any property of any Person, any mortgage,
pledge, hypothecation, encumbrance, lien (statutory or other), charge or
other security interest of any kind in or with respect to such property
(including, without limitation, any conditional sale or other title
retention agreement, and any financing lease under which such Person is
lessee having substantially the same economic effects as any of the
foregoing).
"Loans": the collective reference to the U.S. R/C Loans and the C$
Loans.
"Local Time": (a) in the case of matters relating to U.S. R/C
Loans, New York City time, and (b) in the case of matters relating to C$
Loans, Toronto time.
"Long Term Revolving Credit Agreement": (a) the Long Term Revolving
Credit Agreement, dated as of April 24, 1997, among CFC, CCCL, the
financial institutions from time to time parties thereto, the Managing
Agents parties thereto, Royal Bank of Canada, as Canadian administrative
agent, and The Chase Manhattan Bank, as administrative agent, as
amended, supplemented, or otherwise modified from time to time, or (b)
if such Revolving Credit Agreement is refinanced, refunded or otherwise
replaced by another bank revolving credit agreement, such agreement, as
amended, supplemented or otherwise modified from time to time.
"Material Indebtedness": any item or related items of Indebtedness
(or, in the case of any revolving credit facility, any commitments)
having an aggregate principal amount of at least $100,000,000 (or the
equivalent thereof in any other currency).
"Maturity Date": the date which is the second anniversary of the
Termination Date.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Bank": as defined in Section 12.10(a).
"1997 Annual Report": CFC's annual report on Form 10-K to
stockholders for the fiscal year ended December 31, 1997.
"Other Taxes": as defined in Section 4.13(a).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA or any successor
corporation.
"Person": an individual, a partnership, a corporation (including a
business trust), a joint stock company, a trust, an unincorporated
association, a joint venture or other entity or a government or any
agency or political subdivision thereof.
14
"Plan": any pension plan which is covered by Title IV of ERISA and
in respect of which CFC or a Commonly Controlled Entity is an "employer"
as defined in Section 3(5) of ERISA.
"Prohibited Transaction": any "prohibited transaction" as defined
in Section 406 of ERISA or Section 4975 of the Code.
"Rating Agencies": the collective reference to D&P, Fitch, Moody's
and S&P.
"Real Estate Business": the acquisition, development, leasing,
financing, management, maintenance and disposition of real property,
including, without limitation, automotive dealership facilities and
dealership site control arrangements.
"Reference Banks": the collective reference to the Eurodollar
Reference Banks, the Schedule I C$ Reference Banks and the Schedule II
C$ Reference Banks.
"Registers": the collective reference to the U.S. Register and the
Canadian Register.
"Related C$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Related US$ Bank": as defined in the definition of "US$ Bank
Combined Commitment".
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA or the regulations thereunder.
"Required Banks": at any date, Banks having at least 51% of the
aggregate amount of the Commitments at such date or, if the Commitments
have been terminated or for the purposes of determining whether to
accelerate the Loans pursuant to Section 9, the holders of at least 51%
of the outstanding principal amount of the Loans (US$ Equivalent).
"Required Canadian Banks": at any date, C$ Banks having at least
51% of the aggregate amount of the Canadian Commitments at such date.
"Required U.S. Banks": at any date, US$ Banks having at least 51%
of the aggregate amount of the U.S. Commitments at such date.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any
of its property or to which such Person or any of its property is
subject.
"Responsible Officer": at any particular time, the Chairman of the
Board of Directors, the President, the Treasurer or the Controller of
CFC or CCCL, as the case may be.
"S&P": Standard & Poor's Ratings Services, and its successors.
"Schedule I C$ Bank": any C$ Bank named on Schedule I to the Bank
Act (Canada).
15
"Schedule I Reference C$ Banks": the collective reference to Royal,
Canadian Imperial Bank of Commerce and The Bank of Nova Scotia.
"Schedule II C$ Bank": any C$ Bank named on Schedule II to the Bank
Act (Canada).
"Schedule II Reference C$ Banks": the collective reference to The
Chase Manhattan Bank of Canada, Credit Suisse First Boston Canada,
Banque Nationale de Paris (Canada) and The Dai-Ichi Kangyo Bank
(Canada).
"Significant Subsidiary": at the time of any determination thereof,
(a) CCCL, (b) any other Finance Subsidiary and (c) any other Subsidiary
of CFC the assets of which constitute at least 5% of the consolidated
assets of CFC and its Subsidiaries as stated on the consolidated
financial statements of CFC and its Subsidiaries for the most recently
ended fiscal quarter of CFC, provided, that the term "Significant
Subsidiary" shall not include any Special Purpose Subsidiary.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Special Purpose Subsidiary": any Subsidiary created for the sole
purpose of purchasing assets from CFC or any Finance Subsidiary with the
intention and for the purpose of using such assets in a securitization
transaction.
"Status": the existence of Level I Status, Level II Status, Level
III Status, Level IV Status or Level V Status, as the case may be. For
the purposes of this definition, "Status" will be set at the lowest
Level assigned to CFC by any Rating Agency, unless only one Rating
Agency has assigned such Level to CFC, in which case CFC's Status will
be set at the second lowest Level assigned to CFC by any Rating Agency.
"Statutory Reserves": a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum applicable reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Federal Reserve
Board and any other banking authority to which Chase is subject with
respect to the Base CD Rate (as such term is used in the definition of
"Base Rate"), for new negotiable nonpersonal time deposits in Dollars of
over $100,000 with maturities approximately equal to three months.
Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subsidiary": any corporation of which CFC or one or more
Subsidiaries or CFC and one or more Subsidiaries shall at the time own
shares of any class or classes (however designated) having voting power
for the election of at least a majority of the members of the board of
directors (or other governing body) of such corporation.
"Taxes": as defined in Section 4.13(a).
"Termination Date": the date which is 364 days after the Effective
Date, or, if such day is not a Business Day, the next preceding Business
Day.
"Type": as to any U.S. R/C Loan, its nature as a Base Rate Loan or
a Eurodollar Loan.
16
"US$ Bank": each Bank designated as a "US$ Bank" on Schedule I, as
such Schedule may be modified from time to time pursuant to Section 12.7
or 12.10.
"US$ Bank Combined Commitment": as to any US$ Bank, the sum of (a)
such Bank's U.S. Commitment and (b) if such Bank has a Related C$ Bank,
such Related C$ Bank's Canadian Commitment; provided, that in the event
that Loans shall be outstanding after the Commitments shall have been
terminated, the "US$ Bank Combined Commitment" of each US$ Bank, on any
day, shall be deemed to equal the aggregate principal amount of the
Loans (US$ Equivalent) made by such Bank (or, if applicable, such Bank's
Related C$ Bank), outstanding on such day. For the purposes of this
Agreement, (i) "Related C$ Bank" means, with respect to any US$ Bank, as
applicable, either (x) such Bank in its capacity as a C$ Bank or (y) any
subsidiary, affiliate, branch or agency of such Bank which is a C$ Bank
and (ii) "Related US$ Bank" means, with respect to any C$ Bank, as
applicable, either (x) such Bank in its capacity as a US$ Bank or (y)
any subsidiary, affiliate, branch or agency of such Bank which is a US$
Bank.
"US$ Bank Net Combined Commitment": with respect to each US$ Bank,
an amount equal to such US$ Bank's US$ Bank Combined Commitment minus,
in the case of each US$ Bank that has a Related C$ Bank, such Related C$
Bank's Designated Canadian Commitment Amount.
"US$ Equivalent": on any date of determination, with respect to any
amount in Canadian Dollars, the equivalent in Dollars of such amount,
determined by the relevant Agent using the Canadian Exchange Rate then
in effect with respect thereto as determined pursuant to Section 3.5.
"U.S. Commitment": as to any US$ Bank, its obligation to make U.S.
R/C Loans to CFC hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Bank's
name on Schedule I, as such amount may be changed from time to time as
provided herein.
"U.S. Commitment Percentage": as to any US$ Bank at any time, the
percentage of the aggregate U.S. Commitments then constituted by such
Bank's U.S. Commitment.
"U.S. Facility Fee": as defined in Section 4.5(a).
"U.S. R/C Loans": as defined in Section 2.1(a).
"U.S. Register": as defined in Section 12.7(c).
"U.S. Utilization": for any Utilization Period, with respect to the
U.S. Commitments, the percentage equivalent of a fraction (a) the
numerator of which is the average daily principal amount of U.S. R/C
Loans outstanding during such Utilization Period and (b) the denominator
of which is the average daily amount of the aggregate U.S. Commitments
of all US$ Banks during such Utilization Period.
"Utilization Period": (a) each fiscal quarter of CFC and (b) any
portion of a fiscal quarter of CFC ending on the Final Date.
17
1.2 Other Definitional Provisions. (a) Unless otherwise specified, all terms
defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to CFC and its
Subsidiaries not defined in Section 1.1, and accounting terms partly defined
in Section 1.1 to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section, schedule
and exhibit references are to this Agreement unless otherwise specified.
SECTION 2. THE U.S. COMMITMENTS
2.1 The U.S. Commitments. (a) Subject to the terms and conditions
hereof, each US$ Bank severally agrees to make revolving credit loans ("U.S.
R/C Loans") to CFC from time to time during the Commitment Period. During the
Commitment Period, CFC may use the U.S. Commitment of each US$ Bank by
borrowing, prepaying or repaying the U.S. R/C Loans of such Bank, in whole or
in part, and reborrowing, all in accordance with the terms and conditions
hereof; provided that no U.S. R/C Loans may be made on or after the
Termination Date (it being understood that continuations and conversions of
outstanding U.S. R/C Loans shall be permitted on and after the Termination
Date in accordance with Section 2.3). Notwithstanding anything to the
contrary contained in this Agreement, in no event may U.S. R/C Loans be
borrowed under this Section 2.1 if, after giving effect thereto and the
application of the proceeds thereof, the aggregate principal amount of U.S.
R/C Loans made by any US$ Bank then outstanding would exceed such Bank's U.S.
Commitment.
(b) U.S. R/C Loans may be Base Rate Loans or Eurodollar Loans, as
determined by CFC and notified to the Administrative Agent in accordance with
Section 2.2.
2.2 Procedure for Borrowing. CFC may borrow under Section 2.1 during
the Commitment Period on any Business Day, provided that CFC shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (i) three
Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, and (ii) one Business Day prior to the requested Borrowing
Date, in the case of Base Rate Loans) specifying (A) the amount to be
borrowed, (B) the requested Borrowing Date, (C) the Type(s) of U.S. R/C Loans
to be borrowed, and (D) the length of the Interest Period for any Eurodollar
Loan. Upon receipt of such notice, the Administrative Agent shall promptly
notify each US$ Bank thereof. Not later than 2:00 P.M., New York City time,
on the Borrowing Date specified in such notice, each US$ Bank shall (subject
to Section 12.3(b)) deposit in its Clearing Account an amount in immediately
available funds equal to the amount of the U.S. R/C Loan to be made by such
Bank pursuant to Section 2.1. The Administrative Agent shall, pursuant to
Section 12.3(a), cause such amount to be withdrawn from each such Clearing
Account and shall make the aggregate amount so withdrawn available to CFC by
depositing the proceeds thereof in the account of CFC with the Administrative
Agent on the date such Loans are made for transmittal by the Administrative
Agent upon CFC's request. Each borrowing pursuant to Section 2.1 shall be in
an aggregate principal amount of the lesser of (i) $50,000,000 or an integral
multiple of $1,000,000 in excess thereof or (ii) the then aggregate Available
U.S. Commitments.
18
2.3 Conversion and Continuation Options. (a) CFC may elect from time to
time to convert Eurodollar Loans to Base Rate Loans, by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only
be made on the last day of an Interest Period with respect thereto. CFC may
elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such notice the Administrative
Agent shall promptly notify each US$ Bank thereof. All or any part of
outstanding Eurodollar Loans and Base Rate Loans may be converted as provided
herein, provided that (i) no Base Rate Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Required U.S. Banks have determined in
its or their sole discretion that such conversion is not appropriate and (ii)
no Base Rate Loan may be converted into a Eurodollar Loan after the date that
is seven days prior to the Maturity Date.
(b) Any Eurodollar Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by CFC giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1,
of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required U.S. Banks have determined in its or their sole discretion that
such continuation is not appropriate or (ii) after the date that is seven
days prior to the Maturity Date and provided, further, that if CFC shall fail
to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans
shall be automatically converted to Base Rate Loans on the last day of such
then expiring Interest Period. Upon receipt of any notice given by CFC
pursuant to this Section 2.3(b), the Administrative Agent shall promptly
notify each US$ Bank thereof.
2.4 Minimum Amount of Eurodollar Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, payments, prepayments,
continuations and conversions of U.S. R/C Loans shall be in such amounts and
be made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising any Eurodollar
Tranche shall not be less than $50,000,000.
2.5 Certain Matters Relating to Eurodollar Loans. (a) In the event that
(i) the Administrative Agent determines (which determination shall be
conclusive and binding upon CFC) that by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate in respect of any Eurodollar Loans, or (ii)
the Required U.S. Banks determine (which determination shall be conclusive
and binding upon CFC) and shall notify the Administrative Agent that the
rates of interest referred to in the definition of "Eurodollar Rate" as the
basis upon which the rate of interest for Eurodollar Loans is to be
determined do not adequately cover the cost to the US$ Banks of making or
maintaining Eurodollar Loans, in each case with respect to any proposed U.S.
R/C Loan that CFC has requested be made as a Eurodollar Loan, the
Administrative Agent shall forthwith give facsimile transmission or other
written notice of such determination to CFC and the US$ Banks at least one
Business Day prior to the requested Borrowing Date for such Eurodollar Loan.
If such notice is given, any requested borrowing of a Eurodollar Loan shall
be made as a Base Rate Loan. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made.
19
(b) Upon notice from any Affected Bank (as hereinafter defined), CFC
shall pay to the Administrative Agent for the account of such Affected Bank
an additional amount for each Eurodollar Loan of such Affected Bank, payable
on the last day of the Interest Period with respect thereto, equal to
P X [[R / (1.00 - r)] - R] X [T / 360]
Where P = the principal amount of such Eurodollar Loan of
such Bank;
R = the Eurodollar Rate (expressed as a decimal) for such
Interest Period;
T = the number of days in such Interest Period during which
such Bank was an "Affected Bank"; and
r = the aggregate of rates (expressed as a decimal) of
reserve requirements ("Reserve Requirements")
current on the date two Business Days prior to the
beginning of such Interest Period (including,
without limitation, basic, supplemental, marginal
and emergency reserves) under any regulations of
the Federal Reserve Board or other Governmental
Authority having jurisdiction with respect thereto,
as now and from time to time hereafter in effect,
dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the
Federal Reserve Board) maintained by a member bank
of the Federal Reserve System.
The term "Affected Bank" shall mean any US$ Bank party to this
Agreement that (i) is (x) organized under the laws of the United States or
any State thereof or (y) a bank organized under laws other than those of the
United States of America or a State thereof that is funding its Eurodollar
Loans through a branch or agency located in the United States of America and
(ii) is subject to actual Reserve Requirements in respect of its Eurodollar
Loans. Each US$ Bank agrees to notify the Administrative Agent promptly upon
becoming an Affected Bank, and of any subsequent change of status, disclosing
the effective date of such change.
(c) Upon the occurrence of any of the events specified in Section
2.5(a), each US$ Bank whose Eurodollar Loans are affected by any such event
agrees that it will transfer its Eurodollar Loans affected by any such event
to another branch office (or, if such Bank so elects, to an affiliate) of
such Bank, provided that such transfer shall be made only if such Bank shall
have determined in good faith (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) that, (i) on the
basis of existing circumstances, such transfer will avoid such events and
will not result in any additional costs, liabilities or expenses to such Bank
or to CFC and (ii) such transfer is otherwise consistent with the interests
of such Bank.
SECTION 3. THE CANADIAN COMMITMENTS
3.1 The Canadian Commitments. Subject to the terms and conditions
hereof, each C$ Bank severally agrees to make revolving credit loans ("C$ R/C
Loans") (which shall be C$ Prime Loans) to, and to accept Bankers'
Acceptances from, CCCL from time to time during the Commitment Period. During
the Commitment Period, CCCL may use the Canadian Commitment of each C$ Bank
by borrowing, prepaying or repaying the C$ R/C Loans or Bankers' Acceptances
of such Bank, in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof; provided that no C$ R/C
20
Loans or Bankers' Acceptances may be made or accepted on or after the
Termination Date (it being understood that continuations and conversions of
outstanding C$ R/C Loans and Bankers' Acceptances shall be permitted on and
after the Termination Date in accordance with Section 3.4). Notwithstanding
anything to the contrary contained in this Agreement, in no event may C$ R/C
Loans or Bankers' Acceptances be borrowed or issued under this Section 3.1
if, after giving effect thereto and the application of the proceeds thereof,
the Aggregate Canadian Extensions of Credit of any C$ Bank then outstanding
would exceed such C$ Bank's Canadian Commitment.
3.2 Procedure for C$ R/C Loan Borrowing. CCCL may borrow C$ R/C Loans
during the Commitment Period on any Business Day, provided that CCCL shall
give the Canadian Administrative Agent irrevocable notice (which notice must
be received by the Canadian Administrative Agent prior to 12:00 noon, Toronto
time, one Business Day prior to the requested Borrowing Date, specifying (a)
the amount to be borrowed and (b) the requested Borrowing Date. Upon receipt
of such notice, the Canadian Administrative Agent shall promptly notify each
C$ Bank thereof. Not later than 2:00 P.M., Toronto time, on the Borrowing
Date specified in such notice, each C$ Bank shall make the amount of its
share of such borrowing available to the Canadian Administrative Agent for
the account of CCCL at the office of the Canadian Administrative Agent
specified in Section 12.2 and in funds immediately available to the Canadian
Administrative Agent. Each borrowing pursuant to this Section 3.2 shall be in
an aggregate principal amount of the lesser of (i) C$5,000,000 or an integral
multiple of C$100,000 in excess thereof or (ii) the amount in C$ which has a
US$ Equivalent equal to the then aggregate Available Canadian Commitments.
3.3 Bankers' Acceptances. (a) CCCL may issue Bankers' Acceptances
denominated in C$, for purchase by the C$ Banks, each in accordance with the
provisions of this Section 3.3.
(b) Procedures.
(i) Notice. CCCL shall notify the Canadian Administrative Agent by
irrevocable written notice by 10:00 A.M., Toronto time, one Business Day
prior to the Borrowing Date in respect of any borrowing by way of Bankers'
Acceptances.
(ii) Minimum Borrowing Amount. Each borrowing by way of Bankers'
Acceptances shall be in a minimum aggregate face amount of C$10,000,000.
(iii) Face Amounts. The face amount of each Bankers' Acceptance shall
be C$100,000 or any integral multiple thereof.
(iv) Term. Bankers' Acceptances shall be issued and shall mature on a
Business Day. Each Bankers' Acceptance shall have a term of at least 30
days and not more than 365 days excluding days of grace and shall mature
on or before the Maturity Date and shall be in form and substance
reasonably satisfactory to each C$ Bank. Notwithstanding the foregoing
sentence, Bankers' Acceptances may from time to time be issued for a term
of seven days if each C$ Bank agrees at such time to accept Bankers'
Acceptances with such term in the amount determined by the Canadian
Administrative Agent in respect of such Bank in accordance with Section
3.3(b)(vii).
(v) Bankers' Acceptances in Blank. To facilitate the acceptance of
Bankers' Acceptances under this Agreement, CCCL shall, upon execution of
this Agreement and from time to time as required, provide to the Canadian
Administrative Agent drafts, in form
21
satisfactory to the Canadian Administrative Agent, duly executed and
endorsed in blank by CCCL in quantities sufficient for each C$ Bank to
fulfill its obligations hereunder. In addition, CCCL hereby appoints each
C$ Bank as its attorney to sign and endorse on its behalf, in handwriting
or by facsimile or mechanical signature as and when deemed necessary by
such C$ Bank, blank forms of Bankers' Acceptances. CCCL recognizes and
agrees that all Bankers' Acceptances signed and/or endorsed on its behalf
by a C$ Bank shall bind CCCL as fully and effectually as if signed in the
handwriting of and duly issued by the proper signing officers of CCCL.
Each C$ Bank is hereby authorized to issue such Bankers' Acceptances
endorsed in blank in such face amounts as may be determined by such Bank
provided that the aggregate amount thereof is equal to the aggregate
amount of Bankers' Acceptances required to be accepted by such Bank. No C$
Bank shall be responsible or liable for its failure to accept a Bankers'
Acceptance if the cause of such failure is, in whole or in part, due to
the failure of CCCL to provide duly executed and endorsed drafts to the
Canadian Administrative Agent on a timely basis nor shall any C$ Bank be
liable for any damage, loss or other claim arising by reason of any loss
or improper use of any such instrument except loss or improper use arising
by reason of the gross negligence or willful misconduct of such Bank, its
officers, employees, agents or representatives. Each C$ Bank shall
maintain a record with respect to Bankers' Acceptances (i) received by it
from the Canadian Administrative Agent in blank hereunder, (ii) voided by
it for any reason, (iii) accepted by it hereunder, (iv) purchased by it
hereunder and (v) cancelled at their respective maturities. Each C$ Bank
further agrees to retain such records in the manner and for the statutory
periods provided in the various Canadian provincial or federal statutes
and regulations which apply to such Bank.
(vi) Execution of Bankers' Acceptances. Drafts of CCCL to be accepted
as Bankers' Acceptances hereunder shall be duly executed on behalf of
CCCL. Notwithstanding that any person whose signature appears on any
Bankers' Acceptance as a signatory for CCCL may no longer be an authorized
signatory for CCCL at the date of issuance of a Bankers' Acceptance, such
signature shall nevertheless be valid and sufficient for all purposes as
if such authority had remained in force at the time of such issuance and
any such Bankers' Acceptance so signed shall be binding on CCCL.
(vii) Issuance of Bankers' Acceptances. Promptly following receipt of a
notice of borrowing by way of Bankers' Acceptances, the Canadian
Administrative Agent shall so advise the C$ Banks and shall advise each C$
Bank of the face amount of each Bankers' Acceptance to be accepted by it
and the term thereof. The aggregate face amount of Bankers' Acceptances to
be accepted by a C$ Bank shall be determined by the Canadian
Administrative Agent by reference to the respective Canadian Commitments
of the C$ Banks, except that, if the face amount of a Bankers' Acceptance,
which would otherwise be accepted by a C$ Bank, would not be C$100,000 or
an integral multiple thereof, such face amount shall be increased or
reduced by the Canadian Administrative Agent in its sole and unfettered
discretion to the nearest integral multiple of C$100,000.
(viii) Acceptance of Bankers' Acceptances. Each Bankers' Acceptance to
be accepted by a C$ Bank shall be accepted at such Bank's office referred
to in its Addendum.
(ix) Purchase of Bankers' Acceptances. On the relevant Borrowing Date,
each C$ Bank shall purchase from CCCL, at the Applicable BA Discount Rate,
any Bankers' Acceptance accepted by it and provide to the Canadian
Administrative Agent the BA Discount Proceeds for the account of CCCL. The
Acceptance Fee payable by CCCL to such Bank under Section 3.3(d)
22
in respect of each Bankers' Acceptance accepted and purchased by such Bank
shall be set off against the BA Discount Proceeds payable by such Bank
under this Section 3.3(b)(ix).
(x) Sale of Bankers' Acceptances. Each C$ Bank may at any time and from
time to time hold, sell, rediscount or otherwise dispose of any or all
Bankers' Acceptances accepted and purchased by it.
(xi) Waiver of Presentment and Other Conditions. CCCL waives
presentment for payment and any other defense to payment of any amounts
due to a C$ Bank in respect of a Bankers' Acceptance accepted by it
pursuant to this Agreement which might exist solely by reason of such
Bankers' Acceptance being held, at the maturity thereof, by such Bank in
its own right and CCCL agrees not to claim any days of grace if such Bank
as holder sues CCCL on the Bankers' Acceptances for payment of the amount
payable by CCCL thereunder.
(c) With respect to each Bankers' Acceptance, CCCL shall give
irrevocable telephone or written notice (or such other method of notification
as may be agreed upon between the Canadian Administrative Agent and CCCL) to
the Canadian Administrative Agent at or before 2:00 P.M., Toronto time, two
Business Days prior to the maturity date of such Bankers' Acceptance followed
by written confirmation electronically transmitted to the Canadian
Administrative Agent on the same day, of CCCL's intention to issue a Bankers'
Acceptance on such maturity date (a "Refunding Bankers' Acceptance") to
provide for the payment of such maturing Bankers' Acceptance (it being
understood that payments by CCCL and fundings by the C$ Banks in respect of
each maturing Bankers' Acceptance and the related Refunding Bankers'
Acceptance shall be made on a net basis reflecting the difference between the
face amount of such maturing Bankers' Acceptance and the BA Discount Proceeds
(net of the applicable Acceptance Fee) of such Refunding Bankers'
Acceptance). Any repayment of Bankers' Acceptances must be made at or before
12:00 noon, Toronto time, on the respective maturity dates of such Bankers'
Acceptances. If CCCL fails to give such notice, CCCL shall be deemed to have
repaid such maturing Bankers' Acceptances with funds obtained by way of C$
R/C Loans commencing on the maturity date of such maturing Bankers'
Acceptances.
(d) An Acceptance Fee shall be payable by CCCL to each C$ Bank in
advance (in the manner specified in Section 3.3(b)(ix)) upon the issuance of
a Bankers' Acceptance to be accepted by such Bank calculated at the rate per
annum equal to the Applicable Margin, such Acceptance Fee to be calculated on
the face amount of such Bankers' Acceptance and to be computed on the basis
of the number of days in the term of such Bankers' Acceptance. Subject to the
additional amounts payable under Section 3.3(e), the amount of Acceptance
Fees to be paid as specified above shall be the amount which would be due and
payable if the Canadian Utilization for the term of the relevant Bankers'
Acceptance was less than 50%.
(e) On the first Business Day following the last day of each
Utilization Period, CCCL shall pay to the Canadian Administrative Agent, for
the ratable benefit of the C$ Banks an additional amount on account of
Acceptance Fees in respect of each Bankers' Acceptance outstanding during
such Utilization Period equal to an amount calculated by multiplying:
(A) a fraction, the numerator of which is the number of days in the term
of the Bankers' Acceptance in such Utilization Period and the
denominator of which is the number of days in the term of the Bankers'
Acceptance; by
23
(B) the excess (if any) of (A) the amount of Acceptance Fees which would
have been payable in respect of such Bankers' Acceptance had the
Canadian Utilization at the time of the issuance of such Bankers'
Acceptance been the same as the actual Canadian Utilization during such
Utilization Period, over (B) the amount of Acceptance Fees which
actually were paid in respect of such Bankers' Acceptance.
(f) Upon the occurrence of any Event of Default which is continuing,
and in addition to any other rights or remedies of any C$ Bank and the
Canadian Administrative Agent hereunder, any C$ Bank or the Canadian
Administrative Agent as and by way of collateral security (or such alternate
arrangement as may be agreed upon by CCCL and such Bank or the Canadian
Administrative Agent, as applicable) shall be entitled to deposit and retain
in an account to be maintained by the Canadian Administrative Agent (bearing
interest at the Canadian Administrative Agent's rates as may be applicable in
respect of other deposits of similar amounts for similar terms) amounts which
are received by such Bank or the Canadian Administrative Agent from CCCL
hereunder or as proceeds of the exercise of any rights or remedies of any C$
Bank or the Canadian Administrative Agent hereunder against CCCL, to the
extent such amounts may be required to satisfy any contingent or unmatured
obligations or liabilities of CCCL to the C$ Banks or the Canadian
Administrative Agent, or any of them hereunder.
3.4 Conversion Option. Subject to the provisions of this Agreement,
CCCL may, prior to the Maturity Date, effective on any Business Day, convert,
in whole or in part, C$ R/C Loans into Bankers' Acceptances or vice versa
upon giving to the Canadian Administrative Agent prior irrevocable telephone
or written notice within the notice period and in the form which would be
required to be given to the Canadian Administrative Agent in respect of the
category of C$ Loan into which the outstanding C$ Loan is to be converted in
accordance with the provisions of Section 3.2 or 3.3, as applicable, followed
by written confirmation on the same day, provided that:
(A) no C$ R/C Loan may be converted into a Bankers' Acceptance when any
Event of Default has occurred and is continuing and the Canadian
Administrative Agent has or the Required C$ Banks have determined in
its or their sole discretion that such conversion is not appropriate;
(B) each conversion to Bankers' Acceptances shall be for a minimum
aggregate amount of C$10,000,000 (and whole multiples of C$100,000 in
excess thereof) and each conversion to C$ R/C Loans shall be in a
minimum aggregate amount of C$5,000,000; and
(C) Bankers' Acceptances may be converted only on the maturity date of such
Bankers' Acceptances and, provided that, if less than all Bankers'
Acceptances are converted, then after such conversion not less than
C$10,000,000 (and whole multiples of C$100,000 in excess thereof) shall
remain as Bankers' Acceptances.
3.5 Currency Fluctuations, etc. (a) No later than 2:00 P.M., Toronto
time, on each Canadian Calculation Date, the Canadian Administrative Agent
shall (i) determine the Canadian Exchange Rate as of such date and (ii) give
notice thereof to CFC and CCCL. The Canadian Exchange Rate so determined
shall become effective on the first Business Day immediately following the
relevant Canadian Calculation Date (a "Canadian Reset Date") and shall remain
effective until the next succeeding Canadian Reset Date.
24
(b) No later than 2:00 P.M., New York City time, on each Canadian Reset
Date and each Borrowing Date in respect of C$ Loans, the Canadian
Administrative Agent shall (i) determine the US$ Equivalent of the C$ Loans
then outstanding (after giving effect to any C$ Loans to be made or repaid on
such date) and (ii) notify CFC and CCCL of the results of such determination.
(c) If, on any Canadian Reset Date (after giving effect to (i) any C$
Loans to be made or repaid on such date and (ii) any increase or decrease in
any Canadian Commitment pursuant to Section 12.10 effective on such date of
which the Canadian Administrative Agent has received notice), the Aggregate
Canadian Extensions of Credit of any C$ Bank exceed the Canadian Commitment
of such Bank, then, within ten Business Days after notice thereof from the
Canadian Administrative Agent, (i) CCCL shall reduce the aggregate C$ Loans
(which reduction, in the case of Bankers' Acceptances, may be effected by
Defeasance thereof) and/or (ii) CFC shall increase the Canadian Commitments
pursuant to Section 12.10 in an amount such that, after giving effect
thereto, the Aggregate Canadian Extensions of Credit of each C$ Bank shall be
equal to or less than the Canadian Commitment of such Bank.
(d) The Canadian Administrative Agent shall promptly furnish the
Administrative Agent and each affected C$ Bank with a copy of any notice
delivered to CFC or CCCL pursuant to this Section 3.5.
(e) Notwithstanding the foregoing provisions of this Section 3.5, after
the initial Canadian Calculation Date, the Canadian Administrative Agent may
at its option suspend the resetting of the Canadian Exchange Rate pursuant to
Section 3.5(a) and the making of the determinations referred to in Sections
3.5(b) and 3.5(c) during any period when the sum of the Aggregate Canadian
Extensions of Credit of all C$ Banks, calculated using the Canadian Exchange
Rate effective as of the last Canadian Reset Date prior to such suspension,
is less than 50% of the aggregate Canadian Commitments then in effect.
SECTION 4. GENERAL PROVISIONS
4.1 Evidence of Debt. (a) Each Bank shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of each
Facility Borrower to the appropriate lending office of such Bank resulting
from each Loan made by such lending office of such Bank from time to time,
including the amounts of principal and interest payable and paid to such
lending office of such Bank from time to time under this Agreement.
(b) Each Agent shall maintain a Register pursuant to Section 12.7(c),
and a subaccount for each relevant Bank, in which Register and subaccounts
(taken together) shall be recorded (i) the amount of each relevant Loan made
hereunder, whether such Loan is, as applicable, a U.S. R/C Loan, a C$ R/C
Loan or a Bankers' Acceptance, the Type of each U.S. R/C Loan made and the
Interest Period applicable to any Eurodollar Loan, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
relevant Facility Borrower to each relevant Bank hereunder and (iii) the
amount of any sum received by such Agent hereunder from the relevant Facility
Borrower and each relevant Bank's share thereof.
(c) The entries made in the Registers and accounts maintained pursuant
to paragraphs (a) and (b) of this Section 4.1 shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of
the obligations of the relevant Facility Borrower therein recorded; provided,
that the failure of any Bank or either Agent to maintain such account, such
Register or such
25
subaccount, as applicable, or any error therein, shall not in any manner
affect the obligation of each Facility Borrower to repay the Loans (and all
other amounts owing with respect thereto) made to such Facility Borrower in
accordance with the terms of this Agreement.
4.2 Repayment of Loans. The relevant Facility Borrower shall repay all
outstanding Loans (together with all accrued unpaid interest thereon) on the
Maturity Date (or such earlier date as may be established pursuant to Section
9).
4.3 Interest Rate and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period therefor on the unpaid
principal amount thereof at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest for each day on the unpaid
principal amount thereof, at a rate per annum equal to the Base Rate
determined for such day.
(c) Each C$ Prime Loan shall bear interest for each day on the unpaid
principal amount thereof, at a rate per annum equal to the Canadian Prime
Rate determined for such day.
(d) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any Facility Fee, Acceptance Fee or
other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall
bear interest at a rate per annum which is (x) in the case of overdue
principal, the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this Section 4.3 plus 1% or (y) in the case of
any overdue interest, Facility Fee, Acceptance Fee or other amount, the rate
described in Section 4.3(b) (in the case of amounts payable in Dollars) or
4.3(c) (in the case of amounts payable in C$) plus 1%, in each case from the
date of such non-payment to (but excluding) the date on which such amount is
paid in full (as well after as before judgment).
(e) Interest shall be payable in arrears (i) with respect to Eurodollar
Loans having an Interest Period of three months or less, on the last day of
such Interest Period, (ii) with respect to Eurodollar Loans having an
Interest Period longer than three months, on each day which is three months,
or a whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period, (iii) with respect to Base Rate Loans
and C$ Prime Loans, on the last day of each March, June, September and
December, and (iv) with respect to all Loans, upon each repayment, prepayment
or conversion thereof; provided that interest accruing pursuant to Section
4.3(d) shall be payable on demand. Interest payable in respect of U.S. R/C
Loans shall be payable in Dollars by CFC and interest payable in respect of
C$ Loans shall be payable in C$ by CCCL (subject to Section 12).
(f) The amount of interest on any Eurodollar Loans to be paid on any
date as specified in paragraph (e) above shall in each case be determined
under the assumption that the U.S. Utilization for the Utilization Period(s)
during which such interest accrued was less than 50%. On the first Business
Day following the last day of each Excess U.S. Utilization Period, CFC shall
pay to the Administrative Agent, for the benefit of the US$ Banks, an
additional amount of interest equal to the excess (if any) of (i) the amount
of interest which accrued during such Excess U.S. Utilization Period after
giving effect to the actual U.S. Utilization for such Utilization Period
(whether or not such accrued interest was actually payable during such
Utilization Period) over (ii) the amount of interest which would have accrued
during such Utilization Period if the U.S. Utilization during such
Utilization Period had been less than 50%.
26
4.4 Lending Procedures. (a) Unless the relevant Agent shall have
received notice from a Bank prior to a Borrowing Date that such Bank will not
make available to such Agent such Bank's share of the borrowing requested to
be made on such Borrowing Date, such Agent may assume that such Bank has made
its share of such borrowing available to such Agent on such Borrowing Date,
and such Agent may, in reliance upon such assumption, make available to the
relevant Facility Borrower on such Borrowing Date a corresponding amount. If
such Agent does, in such circumstances, make available to such Facility
Borrower such amount, such Bank shall make its share of such borrowing
available to such Agent forthwith on demand, together with interest thereon
for each day from and including such Borrowing Date that its share of such
borrowing was not made available, to but excluding the date such Bank makes
its share of such borrowing available to such Agent, at the Effective Federal
Funds Rate (in the case of U.S. R/C Loans) or at the then effective Bank Rate
(in the case of C$ Loans). If such amount is so made available, such payment
to such Agent shall constitute such Bank's Loan on such Borrowing Date for
all purposes of this Agreement. If such amount is not so made available to
the relevant Agent, then such Agent shall notify such Facility Borrower of
such failure, and, on the fourth Business Day following such Borrowing Date,
such Facility Borrower shall pay to such Agent such amount, together with
interest thereon for each day that such Facility Borrower had the use of such
ratable portion at the Effective Federal Funds Rate (in the case of U.S. R/C
Loans) or at the then effective Bank Rate (in the case of C$ Loans). Nothing
contained in this Section 4.4(a) shall relieve any Bank which has failed to
make available its share of any borrowing hereunder from its obligation to do
so in accordance with the terms hereof.
(b) The failure of any Bank to make the Loan to be made by it on any
Borrowing Date shall not relieve any other Bank of its obligation, if any,
hereunder to make its Loan on such Borrowing Date, but no Bank shall be
responsible for the failure of any other Bank to make the Loan to be made by
such other Bank on such Borrowing Date.
4.5 Facility Fees. (a) CFC agrees to pay to the Administrative Agent,
for the account of each US$ Bank, in Dollars, a facility fee (the "U.S.
Facility Fee") for each day from and including the Effective Date to but
excluding the Final Date. Such fee shall be payable quarterly in arrears on
(i) the first Business Day of each January, April, July and October (for the
three-month period (or portion thereof) ended on the last day of the
immediately preceding month) and (ii) on the Final Date (for the period ended
on such date for which no payment has been received pursuant to clause (i)
above) and shall be computed for each day during such period at a rate per
annum equal to the Facility Fee Rate in effect on such day on the US$ Bank
Net Combined Commitment of such US$ Bank in effect on such day.
(b) CCCL agrees to pay to the Canadian Administrative Agent, for the
account of each relevant C$ Bank, in Dollars, a facility fee (the "Canadian
Facility Fee") for each day from and including the Effective Date to but
excluding the Final Date. Such fee shall be payable quarterly in arrears on
(i) the first Business Day of each January, April, July and October (for the
three-month period (or portion thereof) ended on the last day of the
immediately preceding month) and (ii) on the Final Date (for the period ended
on such date for which no payment has been received pursuant to clause (i)
above) and shall be computed for each day during such period at a rate per
annum equal to the Facility Fee Rate in effect on such day on the Designated
Canadian Commitment Amount of such C$ Bank in effect on such day.
4.6 Termination or Reduction of Commitments. (a) Prior to the
Termination Date, CFC shall have the right, upon not less than five Business
Days' notice to each Agent, to terminate the Commitments or, from time to
time, to reduce the amount of the U.S. Commitments (so long as, after
27
giving effect thereto and any contemporaneous prepayment of the Loans, the
Aggregate U.S. Extensions of Credit of each US$ Bank shall be no greater than
such Bank's U.S. Commitment) or reduce the amount of the Canadian Commitments
(so long as, after giving effect thereto and any contemporaneous prepayment
of the C$ Loans, the Aggregate Canadian Extensions of Credit of each C$ Bank
shall be no greater than such Bank's Canadian Commitment). Upon receipt of
such notice the Administrative Agent shall promptly notify each relevant Bank
thereof. Any such reduction shall be in an amount of at least $100,000,000
(in the case of the U.S. Commitments) or $10,000,000 (in the case of the
Canadian Commitments) and shall reduce permanently the amount of the affected
Commitments then in effect. Any termination of the Commitments pursuant to
this Section 4.6(a) shall be accompanied by prepayment in full of the Loans,
together with accrued interest thereon to the date of such prepayment.
(b) The Commitments shall automatically terminate on the Termination
Date.
4.7 Optional Prepayments. Each Facility Borrower may at any time and
from time to time prepay the Loans made to it hereunder, in whole or in part,
without premium or penalty, upon prior notice to the relevant Agent (which
notice must be received by the relevant Agent prior to 10:00 A.M., Local
Time, (i) three Business Days prior to the repayment date in the case of
Eurodollar Loans and (ii) one Business Day prior to the repayment date
otherwise) specifying the date and amount of prepayment, and the category or
categories of Loan to be prepaid; provided, that each prepayment of
Eurodollar Loans on a day other than the last day of the related Interest
Period shall require the payment of any amounts payable by CFC pursuant to
Section 4.12. Upon receipt of any such notice, the relevant Agent shall
promptly notify each relevant Bank thereof. Any such notice shall be
irrevocable, and the payment amount specified in such notice shall be due and
payable on the date specified, together with accrued interest to such date on
the amount prepaid. Partial prepayments shall be in an aggregate principal
amount of $25,000,000 or a multiple of $1,000,000 in excess thereof (in the
case of U.S. R/C Loans) and C$5,000,000 or a multiple of C$1,000,000 in
excess thereof (in the case of C$ Prime Loans). Notwithstanding anything to
the contrary above, Loans consisting of Bankers' Acceptances may not be
prepaid pursuant to this Section 4.7.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of U.S. R/C
Loans shall be made pro rata according to the then existing U.S. Commitments
of the US$ Banks. Each borrowing of C$ R/C Loans shall be made pro rata
according to the then existing Canadian Commitments of the C$ Banks. Any
reduction of the amount of the Commitments of the Banks hereunder (except for
the termination or reduction of a particular Bank's Commitment pursuant to
Section 4.11(a)) shall be made pro rata according to the amounts of the then
existing relevant Commitments. Each payment (including each prepayment) by a
Facility Borrower on account of principal of and interest on (except for
payments to a particular Bank pursuant to Section 2.5, 4.10, 4.11, 4.12 or
4.13) any category of Loan (other than Eurodollar Loans) shall be made on a
pro rata basis according to the amounts of the then outstanding Loans of such
type of the relevant Banks. Each payment (including each prepayment) by CFC
on account of principal of and interest on Eurodollar Loans designated by CFC
to be applied to a particular Eurodollar Tranche shall be made pro rata
according to the respective outstanding principal amounts of such Eurodollar
Loans then held by the US$ Banks. All payments (including prepayments) by the
relevant Facility Borrower hereunder on account of principal, interest, fees
and other amounts shall be made without setoff or counterclaim to the
relevant Agent for the account of the relevant Banks at the office of the
relevant Agent referred to in Section 12.2 in Dollars or C$, as applicable,
in immediately available funds. The relevant Agent shall promptly distribute
such payments to each Bank entitled to receive a portion thereof in like
funds as received. If any payment hereunder (other than a payment in respect
of a Eurodollar Loan) becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan
28
becomes due and payable on a day other than a Business Day, the maturity
thereof shall be extended to the next succeeding Business Day unless the
result of such extension would be to extend such payment into another
calendar month in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension. The provisions of
the first five sentences of this Section 4.8(a) shall not apply to any
borrowing or prepayment made pursuant to Section 12.10.
(b) Unless the relevant Agent shall have received notice from the
relevant Facility Borrower prior to the date on which any payment is due to
the relevant Banks hereunder that such Facility Borrower will not make such
payment in full, such Agent may assume that such Facility Borrower has made
such payment in full to such Agent on such date, and such Agent may, in
reliance upon such assumption, cause to be distributed to each such Bank on
such due date an amount equal to the amount then due to such Bank. If and to
the extent such Facility Borrower shall not have so made such payment in full
to such Agent, each such Bank shall repay to such Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from and including the date such amount is distributed to such Bank to
but excluding the date such Bank repays such amount to such Agent at the
Effective Federal Funds Rate (in the case of U.S. R/C Loans) or the then
effective Bank Rate (in the case of C$ Loans) for each such day. Nothing
contained in this Section 4.8(b) shall relieve either Facility Borrower from
its obligations to make payments on all amounts due hereunder in accordance
with the terms hereof.
4.9 Computation of Interest and Fees. (a) Interest (other than interest
calculated on the basis of the Prime Rate or the Canadian Prime Rate) shall
be calculated on the basis of a 360-day year for the actual days elapsed.
Facility Fees, Acceptance Fees and interest calculated on the basis of the
Prime Rate or the Canadian Prime Rate is expressed herein and shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed. The relevant Agent shall, as soon as practicable,
notify the relevant Facility Borrower and the relevant Banks of each
determination of the Eurodollar Rate or the Applicable BA Discount Rate. Any
change in the interest rate in respect of a Loan or in any Facility Fee or
Acceptance Fee resulting from a change in the Base Rate, the Canadian Prime
Rate, the Applicable Margin or Status shall become effective as of the
opening of business on the day on which a change in the Base Rate or Canadian
Prime Rate shall become effective or such Applicable Margin or Status changes
as provided herein, as the case may be. The relevant Agent shall notify the
relevant Facility Borrower and the relevant Banks of the effective date and
the amount of each such change in the Base Rate or Canadian Prime Rate.
(b) Each determination, pursuant to and in accordance with any
provision of this Agreement, of the Eurodollar Rate or the Applicable BA
Discount Rate by the relevant Agent, and each determination by a Reference
Bank of a rate with respect to a Eurodollar Loan or a Bankers' Acceptance to
be notified to the relevant Agent pursuant to the definition of "Eurodollar
Rate" or "Applicable BA Discount Rate", as the case may be, shall be
conclusive and binding on the Facility Borrowers and the Banks in the absence
of manifest error. The relevant Agent shall, at the request of the relevant
Facility Borrower, deliver to such Facility Borrower a statement showing any
quotations given by the relevant Reference Banks and the computations used by
such Agent in determining any Eurodollar Rate or Applicable BA Discount Rate.
(c) If any Reference Bank's relevant Commitment shall terminate
(otherwise than on termination of all the Commitments) or, as the case may
be, the relevant Loans made by it hereunder are assigned, or prepaid or
repaid (otherwise than on the prepayment or repayment of the relevant Loans
29
among the Banks) for any reason whatsoever, such Reference Bank shall
thereupon cease to be a Reference Bank, and if, as a result of the foregoing,
there shall be only one Reference Bank of a particular category remaining,
then the relevant Agent (after consultation with the relevant Facility
Borrower and the relevant Banks) shall, as soon as practicable thereafter, by
notice to the Facility Borrowers and the relevant Banks, designate another
Bank that is willing to act as a Reference Bank so that there shall at all
times be at least two Reference Banks of each category. In acting so to
designate another Bank to serve as a Eurodollar Reference Bank, the
Administrative Agent will use its best efforts to ensure that one Eurodollar
Reference Bank will, at all times, be a US$ Bank that has its headquarters
office located outside the United States.
(d) If any of the Reference Banks shall be unable or shall otherwise
fail to provide notice of a rate to the relevant Agent upon its request, the
Eurodollar Rate or Applicable BA Discount Rate, as applicable, shall be
determined on the basis of rates provided in notices of the remaining
relevant Reference Banks.
4.10 Increased Costs. In the event that any law, regulation, treaty or
directive or any change therein or in the interpretation or application
thereof or compliance by any Bank with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority enacted or made subsequent to the date hereof:
(a) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Bank; or
(b) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank
of making or maintaining advances or extensions of credit hereunder to either
Facility Borrower or to reduce any amounts receivable hereunder from either
Facility Borrower (such increase in cost or reduction in amounts receivable,
"Increased Costs") then, in any such case, such Facility Borrower shall
promptly pay to the relevant Agent for the account of such Bank, upon the
written demand of such Bank to such Facility Borrower (with a copy to the
relevant Agent), so long as such Increased Costs are not otherwise included
in the amounts required to be paid to such Bank pursuant to Section 2.5(b),
4.11, 4.12 or 4.13, any additional amounts necessary to compensate such Bank
for such Increased Costs which such Bank deems to be material as determined
by such Bank with respect to its Eurodollar Loans or Bankers' Acceptances, as
the case may be. If a Bank becomes entitled to claim any additional amounts
pursuant to this Section 4.10, it shall promptly notify the relevant Facility
Borrower, through the relevant Agent, of the event by reason of which it has
become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by a Bank, through the relevant
Agent, to the relevant Facility Borrower shall be conclusive in the absence
of manifest error.
4.11 Changes in Capital Requirements. (a) In the event that, in the
written opinion of counsel for any Bank (which may, in the discretion of such
Bank, be such Bank's internal counsel), compliance with any law, rule,
regulation or guideline, or any change therein or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or
Governmental Authority, in each case enacted or made subsequent to the date
hereof shall affect the amount of capital required or expected to be
maintained by such Bank or any corporation controlling such Bank and the
amount of such capital that is required or expected to
30
be maintained is increased by or based upon the Commitment of such Bank under
this Agreement or any participation agreement entered into pursuant to
Section 12.7, as applicable (such event, a "Change in Law"), such affected
Bank shall notify CFC and the Administrative Agent within 180 days after such
affected Bank shall have obtained actual knowledge of the costs associated
with its compliance with such Change in Law (but in no event later than 365
days after such Bank is first required to comply with such Change in Law). At
the time of such notification such affected Bank shall provide CFC with (i) a
written statement, certified by a senior officer of such affected Bank
responsible for assessing costs associated with its compliance with capital
adequacy requirements, (x) setting forth in reasonable detail the amount that
would adequately compensate such affected Bank for the costs associated with
its compliance with such Change in Law and the assumptions upon which such
affected Bank calculated such amount and (y) certifying that such
calculations comply with the requirements of the next succeeding sentence,
and (ii) a copy of the opinion of counsel referred to in the preceding
sentence. Such affected Bank shall allocate to the Facility Borrowers the
costs associated with such Change in Law in such a way that the proportion of
(i) such costs that are allocated to the Facility Borrowers to (ii) the total
of such costs of such affected Bank associated with such Change in Law as it
relates to all commitments of such Bank to its customers of similar
creditworthiness as the Facility Borrowers, is substantially the same as the
proportion of (i) the Commitment of such affected Bank under this Agreement
or such participation agreement to (ii) the total of all commitments by such
affected Bank to its customers of similar creditworthiness as the Facility
Borrowers. CFC and such affected Bank shall thereafter negotiate in good
faith an agreement to increase that portion of the Facility Fee payable to
such affected Bank under Section 4.5 to a level, which, in the opinion of
such affected Bank, will adequately compensate such affected Bank for such
costs. If such increase is approved in writing by CFC within 90 days from the
date of the notice to CFC from such affected Bank, the Facility Fee payable
by CFC shall, effective from the date of such Change in Law (but subject to
the last sentence of this Section 4.11(a)) include the amount of such agreed
increase, and CFC will so notify the Administrative Agent. If CFC and such
affected Bank are unable to agree on such an increase within 90 days from the
date of the notice to CFC from such affected Bank, CFC shall by written
notice to such affected Bank within 120 days from the date of the aforesaid
notice to CFC from such affected Bank, elect either to (a) terminate the
Commitment of such affected Bank (each such Bank, a "Terminated Bank")
(subject to the last sentence of this Section 4.11(a)) or (b) (subject to the
next to last sentence of this Section 4.11(a)) increase the Facility Fee
payable to such affected Bank by the amount requested by such affected Bank.
Without limiting the foregoing, if CFC elects to take the action described in
clause (b) of the preceding sentence, it may simultaneously therewith reduce
the Commitment of such affected Bank by an amount chosen by CFC. If CFC fails
to provide notice to such affected Bank as described in the second preceding
sentence by such 120th day, CFC shall be deemed to have taken the action
described in clause (b) of such second preceding sentence. CFC (A) may from
time to time after such 120th day reduce the compensation to be received
pursuant to this Section 4.11(a) by any affected Bank as a result of any
Change in Law, to the average compensation (the "Average Compensation") CFC
has agreed, as provided above, to pay the affected Banks as a result of such
Change in Law (such average compensation to be measured by a percentage of
the aggregate Commitments of such affected Banks) and (B) shall pay to each
Terminated Bank, on the date the Commitment of such Bank is terminated, an
amount equal to the excess, if any, of (i) the lesser of (x) the aggregate
Facility Fee that would have been payable to such Bank, from the date of such
Terminated Bank's notice to CFC pursuant to this Section 4.11(a) to the date
the Commitment of such Terminated Bank is terminated, had such Facility Fee
been determined by reference to the Average Compensation and (y) the
aggregate Facility Fee that would have been payable to such Bank during such
period had such Facility Fee been increased by an amount necessary to
adequately compensate such Bank (as determined by such Bank in accordance
with the applicable provisions of this Section 4.11(a)) for the costs
attributable to the relevant Change in Law over (ii) the aggregate Facility
Fee actually paid to such Bank during such period.
31
(b) On the day the Commitment of a Terminated Bank is terminated
pursuant to Section 4.11(a), CFC or CCCL, as applicable, shall (i) repay all
Loans and other amounts (including accrued interest and Facility Fees) owing
to such Terminated Bank, (ii) be liable to such Terminated Bank under Section
4.12 if any Eurodollar Loans owing to such Terminated Bank shall be repaid
other than on the last day of the Interest Period relating to such Eurodollar
Loan, and (iii) in the case of CCCL, Defease all Bankers' Acceptances
accepted by such Terminated Bank.
(c) Upon the occurrence of any Change in Law each Bank whose Commitment
hereunder is affected by such Change in Law shall transfer its Commitment to
another branch office (or, if such Bank so elects, to an affiliate) of such
Bank, provided that such transfer shall be made only if such Bank shall have
determined in good faith (which determination shall, absent manifest error,
be final, conclusive and binding upon all parties) that (i) on the basis of
existing circumstances, such transfer will avoid the increased costs
resulting from such Change in Law and will not result in any additional
costs, liabilities or expenses to such Bank (unless CFC agrees to pay such
additional costs, liabilities or expenses of such Bank) and (ii) such
transfer is otherwise consistent with the interests of such Bank.
4.12 Indemnity. Each of CFC and CCCL, as applicable, agrees to
indemnify each Bank and to hold such Bank harmless from any loss or expense
(including, but not limited to, any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain its Eurodollar Loans hereunder, but excluding loss of the
Applicable Margin), which such Bank may sustain or incur as a consequence of
(a) failure by either Facility Borrower in making any payment when due
(whether by acceleration or otherwise) of the principal amount of or interest
on the Eurodollar Loans or Bankers' Acceptances of such Bank, (b) failure by
either Facility Borrower to make a borrowing consisting of Eurodollar Loans
or Bankers' Acceptances, or a conversion into or continuation of Eurodollar
Loans or Bankers' Acceptances, after such Facility Borrower has given a
notice requesting or accepting the same in accordance with the provisions of
this Agreement, (c) failure by either Facility Borrower in making any
prepayment after such Facility Borrower has given a notice in accordance with
this Agreement and (d) a payment or prepayment of a Eurodollar Loan on a day
that is not the last day of the Interest Period with respect thereto. In the
case of Eurodollar Loans, such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such payment, prepayment or of such failure to
borrow, convert or continue to the last day of the relevant Interest Period
(or proposed Interest Period), in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the
Applicable Margin) over (ii) the amount of interest (as reasonably determined
by such Bank) which would have accrued to such Bank on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurodollar market. The agreements in this Section 4.12 shall
survive the payment of the Loans and all other amounts payable hereunder.
4.13 Taxes. (a) In the event that the adoption of any law, regulation,
treaty or directive or any change therein or in the interpretation or
application thereof, in each case after the date hereof, shall require any
Taxes (as hereinafter defined) to be withheld or deducted from any amount
payable to any Bank under this Agreement, upon notice by such Bank to the
relevant Facility Borrower (with a copy to the relevant Agent) to the effect
that (i) as a result of the adoption of such law, rule, regulation, treaty or
directive or a change therein or in the interpretation thereof, Taxes are
being withheld or deducted from amounts payable to such Bank under this
Agreement and (ii) such Bank has taken all action required to be taken by it
to avoid the imposition of such Taxes pursuant to paragraph (c) of this
Section 4.13 prior to demanding indemnification under this paragraph (a),
such Facility Borrower will pay to the
32
relevant Agent for the account of such Bank additional amounts so that such
additional amounts, together with amounts otherwise payable under this
Agreement, will yield to such Bank, after deduction from such increased
amount of all Taxes required to be withheld or deducted therefrom, the amount
stated to be payable under this Agreement. The term "Taxes" shall mean all
net income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, imposed, levied, collected, withheld or assessed
by any country (or by any political subdivision or taxing authority thereof
or therein), excluding, with respect to any Bank, net income and franchise
taxes imposed with respect to net income by any country (or any political
subdivision or taxing authority thereof or therein) where such Bank is
organized or, in respect of such Bank's Eurodollar Loans, by the country (or
any political subdivision or tax authority thereof or therein) where such
Bank's Eurodollar Loans are booked and, in respect of such Bank's Base Rate
Loans, by the country (or any political subdivision or tax authority thereof
or therein) where such Bank's Base Rate Loans are booked (such excluded
taxes, "Other Taxes"). If the relevant Facility Borrower fails to pay any
Taxes when due following notification by any Bank as provided above, such
Facility Borrower shall indemnify such Bank for any incremental taxes,
interest or penalties that may become payable by any Bank as a result of any
such failure by such Facility Borrower to make such payment. Either Facility
Borrower may, upon payment by such Facility Borrower to any Bank claiming
indemnification under this paragraph (a) of any amount payable by such
Facility Borrower to such Bank, elect by not less than four Business Days'
prior written notice to such Bank to terminate the Commitment of such Bank
and prepay or Defease (in the case of Bankers' Acceptances) the outstanding
Loans of such Bank.
(b) Each Bank that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to CFC and
the Administrative Agent (i) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or any successor applicable form,
as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9 or
any successor form. Each such Bank also agrees to deliver to CFC and the
Administrative Agent two further copies of the said Form 1001 or 4224 and
Form W-8 or W-9, or successor applicable forms or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to CFC, and such
extensions or renewals thereof as may reasonably be requested by CFC or the
Administrative Agent, unless in any such case an event (including, without
limitation, any change in treaty, law or regulation) has occurred prior to
the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Bank from duly
completing and delivering any such form with respect to it and such Bank so
advises CFC and the Administrative Agent. Such Bank shall certify (i) in the
case of Form 1001 or 4224, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal
income taxes and (ii) in the case of a Form W-8 or W-9, that it is entitled
to an exemption from United States backup withholding tax.
(c) No Bank may request indemnification for any Taxes from either
Facility Borrower under paragraph (a) of this Section 4.13 to the extent that
such Taxes would have been avoided or reduced by such Bank's transfer of its
Loans affected by such event to another office of such Bank (or to an
affiliate of such Bank), by such Bank's properly claiming the benefit of any
exemption from or reduction of such Taxes (whether provided by statute,
treaty or otherwise), including, without limitation, by delivering the forms
required by paragraph (b) of this Section 4.13, or by such Bank's taking any
other action which in its judgment is reasonable to avoid or reduce such
Taxes, provided that such Bank shall not be required to (i) take any action
which in the reasonable judgment of such Bank could directly or indirectly
result in any increased cost or expense or in any loss of opportunity to such
Bank unless the relevant Facility Borrower shall have provided to such Bank
indemnity or reimbursement therefor in
33
form and substance reasonably satisfactory to such Bank or (ii) claim or
apply any tax credit against such Taxes.
(d) Within 30 days after the payment by either Facility Borrower of any
Taxes withheld or deducted from any amount payable to any Bank under this
Agreement, and irrespective of whether such Bank is entitled to demand
indemnification in respect thereof under paragraph (a) above, such Facility
Borrower will furnish to such Bank (with a copy to the relevant Agent), the
original or a certified copy of a receipt evidencing payment thereof.
4.14 Use of Proceeds. The proceeds of the Loans shall be used by each
Facility Borrower for general corporate purposes.
4.15 Replacement of Banks. CFC shall be permitted to replace any Bank
which (a) requests reimbursement for amounts owing pursuant to Section 2.5,
4.10, 4.11 or 4.13 or (b) defaults in its obligation to make Loans, with a
replacement Commercial Bank; provided that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) the
relevant Facility Borrower shall repay (or the replacement Commercial Bank
shall purchase, at par) all Loans (other than Bankers' Acceptances) and other
amounts (including accrued interest) owing to such replaced Bank concurrently
with such replacement, (iv) in the case of any replaced C$ Banks, (x) CCCL
shall Defease all Bankers' Acceptances accepted by such replaced Bank and (y)
CCCL shall give the Canadian Administrative Agent notice of such Defeasance,
(v) CFC shall be liable to such replaced Bank under Section 4.12 if any
Eurodollar Loan owing to such replaced Bank shall be prepaid (or purchased)
other than on the last day of the Interest Period relating thereto, (vi) the
replacement Commercial Bank, if not already a Bank, and the terms and
conditions of such replacement, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Bank shall be obligated to make such
replacement in accordance with the provisions of Section 12.7 (provided that
CFC shall be obligated to pay the registration and processing fee referred to
therein), (viii) until such time as such replacement shall be consummated,
the Facility Borrowers shall pay all additional amounts (if any) required
pursuant to Section 2.5, 4.10, 4.11 or 4.13, as the case may be, and (ix) any
such replacement shall not be deemed to be a waiver of any rights which the
Facility Borrowers, any Agent or any other Bank shall have against the
replaced Bank.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement and to make
the Loans herein provided for, CFC and, to the extent applicable, CCCL,
hereby represents and warrants to each Bank that:
5.1 Financial Condition. The consolidated balance sheet of CFC and its
Subsidiaries as at December 31, 1997, and the related consolidated statements
of net earnings and cash flows for the fiscal year ended on such date,
certified by Deloitte & Touche, copies of which have been delivered to each
Bank, present fairly the consolidated financial position of CFC and its
Subsidiaries as at such date, and the consolidated results of their
operations and cash flows for the fiscal year then ended. The unaudited
consolidated balance sheet of CFC and its Subsidiaries as at March 31, 1998,
and the related consolidated statements of net earnings and cash flows for
the three-month period ended on such date, certified by a Responsible
Officer, copies of which have been delivered to each Bank, present fairly the
consolidated financial condition of CFC and its Subsidiaries as at such date,
and the consolidated results of their operations for the three-month period
then ended (subject to normal year-end audit adjustments).
34
Such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP. As at March 31, 1998, neither CFC
nor any of its Subsidiaries had any asset, liability, contingent obligation,
liability for taxes, long-term lease or unusual forward or long-term
commitment material to the financial condition of CFC and its Subsidiaries
taken as a whole, which was not reflected in the foregoing statements or in
the notes thereto.
5.2 No Change. Between December 31, 1997 and the Effective Date there
has been no material adverse change in the business, operations or financial
condition of CFC and its Subsidiaries taken as a whole.
5.3 Corporate Existence. Each Facility Borrower (a) is a corporation
duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its organization, and (b) is duly qualified as a foreign
corporation to do business and is in good standing in each of the
jurisdictions in which the character of the properties owned or held under
lease by it or the nature of business transacted by it makes such
qualification necessary, except in the case of this clause (b) to the extent
that the failure to be so qualified or in good standing would not have a
material adverse effect on the business, operations or financial condition of
CFC and its Subsidiaries taken as a whole.
5.4 Corporate Authorization; No Violation. The execution, delivery and
performance by each Facility Borrower of this Agreement are within the
corporate powers of such Facility Borrower, have been duly authorized by all
necessary corporate action, and do not contravene any Requirement of Law or
Contractual Obligation of CFC or any of its Subsidiaries, except to the
extent that such contravention would not have a material adverse effect on
the business, operations or financial condition of CFC and its Subsidiaries
taken as a whole or on the ability of such Facility Borrower to fulfill its
obligations under this Agreement or on the rights and remedies of the Agents
and the Banks hereunder.
5.5 Government Authorization. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority is
required to be obtained or made by CFC or any of its Subsidiaries for the due
execution, delivery and performance by each Facility Borrower of this
Agreement.
5.6 Federal Regulations. Neither CFC nor any of its Subsidiaries is
principally engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U, T or
X issued by the Federal Reserve Board), and no proceeds of any borrowing
hereunder will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.
5.7 Enforceable Obligations. This Agreement has been duly executed and
delivered on behalf of each Facility Borrower, and this Agreement constitutes
a legal, valid and binding obligation of each Facility Borrower enforceable
against such Facility Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by principles of equity, whether considered
in a proceeding in equity or at law.
5.8 No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of either Facility Borrower, threatened by or against CFC or any of
its Subsidiaries or against any of its or their respective properties or
revenues, in which there is a reasonable likelihood of an adverse
determination (a) with respect to this Agreement or any of the transactions
contemplated hereby, if such adverse determination would have a
35
material adverse effect on the ability of either Facility Borrower to fulfill
its obligations under this Agreement or on the rights and remedies of the
Administrative Agent and the Banks hereunder or (b) which would, if adversely
determined, have a material adverse effect on the business, operations,
property or financial condition of CFC and its Subsidiaries taken as a whole.
5.9 ERISA. No Prohibited Transaction or Accumulated Funding Deficiency
(other than those that have been waived by the Internal Revenue Service) has
occurred since July 1, 1974 with respect to any Plan and no Reportable Event
has occurred since July 1, 1974 with respect to any Plan which could in
either case subject CFC or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate material in relation to the business,
operations, property or financial or other condition of CFC and its
Subsidiaries taken as a whole. The projected benefit obligations with respect
to all benefits, both vested and nonvested, under all Single Employer Plans
(based on the most recently available actuarial information and computed in
accordance with Statement of Accounting Standards No. 87) maintained by CFC
or a Commonly Controlled Entity did not exceed, at December 31, 1997, the
fair value of the assets of such Plans.
5.10 Investment Company Act; Other Regulations. No Facility Borrower is
an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. No Facility Borrower is subject to regulation under any statute or
regulation of the United States or Canada (or any governmental unit thereof)
which limits its ability to incur Indebtedness.
5.11 Existing Financial Covenants. Schedule II hereto sets forth a list
of all Material Indebtedness of CFC or any Significant Subsidiary the
documentation with respect to which includes a Financial Covenant which is
more onerous than, or materially different from (it being understood that a
quarterly Debt to Equity Ratio with respect to CFC shall not under any
circumstances be deemed to be "materially different from" the Financial
Covenant contained in Section 8.1), the Financial Covenant contained in
Section 8.1, together with a complete and correct transcription of the text
of each such Financial Covenant.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Effectiveness. The effectiveness of this Agreement is
subject to the satisfaction of the following conditions precedent:
(a) Execution of Agreement and Addenda. (i) This Agreement shall have
been executed and delivered by a duly authorized officer of each Facility
Borrower and each Agent and (ii) the Administrative Agent shall have
received an executed Addendum (or a copy thereof by facsimile
transmission) from each Person listed on Schedule I, provided, that,
notwithstanding the foregoing, in the event that an Addendum has not been
duly executed and delivered by each Person listed on Schedule I on the
date (which shall be no earlier than the date hereof) on which this
Agreement shall have been executed and delivered by each of CFC and the
Administrative Agent, this Agreement shall, subject to satisfaction of the
other conditions precedent set forth in this Section 6.1, nevertheless
become effective on such date with respect to those Persons which have
executed and delivered an Addendum on or before such date if on such date
CFC and the Administrative Agent shall have designated one or more
Commercial Banks (the "Designated Banks") to assume, in the aggregate, all
of the Commitments which would have been held by the Persons listed on
Schedule I (the "Non-Executing Persons") which have not so executed an
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Addendum (subject to each such Designated Bank's prior written consent in
its sole discretion and its execution of an Addendum). Schedule I shall
automatically be deemed to be amended to reflect the respective
Commitments of the Designated Banks and the omission of the Non-Executing
Persons as Banks hereunder.
(b) Closing Certificate. The Administrative Agent shall have received a
certificate of each Facility Borrower, dated the Effective Date,
substantially in the form of Exhibit B, with appropriate insertions,
satisfactory in form and substance to the Administrative Agent, executed
by the President or any Vice President and the Secretary or any Assistant
Secretary of such Facility Borrower, and attaching the documents referred
to in Section 6.1(c) and (d).
(c) Corporate Proceedings of the Facility Borrowers. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors of
each Facility Borrower (or a duly authorized committee thereof)
authorizing (i) the execution, delivery and performance of this Agreement
and (ii) the borrowings by such Facility Borrower contemplated hereunder.
(d) Corporate Documents. The Administrative Agent shall have received
true and complete copies of the certificate of incorporation or
amalgamation and by-laws of each Facility Borrower.
(e) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions, with a copy for each Bank:
(i) the executed legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Administrative Agent, substantially in the form of
Exhibit C-1;
(ii) the executed legal opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.,
Vice President and General Counsel of CFC, substantially in the form of
Exhibit C-2; and
(iii) the executed legal opinion of Gowling, Strathy & ▇▇▇▇▇▇▇▇▇,
Canadian Counsel to CCCL, substantially in the form of Exhibit C-3.
(f) Existing Agreement. The Administrative Agent shall have received
satisfactory evidence that the Existing Agreement shall have been
terminated pursuant to an irrevocable notice of termination and that any
amounts owing thereunder (including, without limitation, accrued unpaid
commitment fees thereunder through the Effective Date) by the relevant
Facility Borrower shall have been (or shall upon the occurrence of the
Effective Date be) paid in full. Without affecting any terms of the
Existing Agreement which expressly survive the termination of the Existing
Agreement, each Bank party to the Existing Agreement hereby waives any
requirement of advance notice of such termination contained in the
Existing Agreement and hereby agrees that the Existing Agreement and the
commitments thereunder (subject to receipt of any other required consents
of any other Person) shall terminate simultaneously with the satisfaction
of the conditions to effectiveness set forth in this Section 6.1.
The Administrative Agent shall notify the Banks of the Effective Date
promptly after the occurrence thereof, which notice shall be accompanied, if
applicable, with a copy of Schedule I revised to give effect to any deemed
amendments thereto made pursuant to Section 6.1(a).
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6.2 Conditions to Each Loan. The obligation of each Bank to make any
Loan on or after the Effective Date to be made by it hereunder is subject to
the satisfaction (or waiver by the Required U.S. Banks (in the case of U.S.
R/C Loans) or the Required C$ Banks (in the case of C$ Loans)) of the
following conditions precedent:
(a) Representations and Warranties. The representations and warranties
made by CFC and, in the case of C$ Loans, CCCL, shall be correct in all
material respects on and as of the Borrowing Date for such Loan as if made
on and as of such date, except for any such representations or warranties
which relate solely to an earlier date.
(b) No Default or Event of Default. No Default or Event of Default
shall have occurred and be continuing on such Borrowing Date or after
giving effect to the Loans to be made on such Borrowing Date.
Each borrowing by either Facility Borrower hereunder shall constitute a
representation and warranty by such Facility Borrower as of the date of each
such borrowing that the conditions in this Section 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL hereby covenants and
agrees that so long as the Commitments remain in effect, any Loan remains
outstanding and unpaid or any other amount is owing to any Bank or either
Agent hereunder:
7.1 Financial Statements, etc. (a) Each Facility Borrower will furnish
(a) in the case of CFC, to the Administrative Agent and each Bank or (b) in
the case of CCCL, to the Canadian Administrative Agent and each C$ Bank:
(i) as soon as available and in any event within 60 days after
the end of the first, second and third quarterly accounting periods in
each fiscal year of such Facility Borrower, copies of financial
statements of such Facility Borrower and its Subsidiaries consisting
of, at a minimum, balance sheets of such Facility Borrower and its
Subsidiaries on a consolidated basis as of the end of such quarterly
accounting period, and related statements of net earnings and cash
flows for the portion of such fiscal year ended with the last day of
such quarterly accounting period, all in reasonable detail and prepared
and certified (subject to year-end audit adjustments) by a Responsible
Officer (which certification may be included in the certificate
referred to in Section 7.1(a)(iii)) and stating in comparative form the
respective figures for the corresponding date and period in the
previous fiscal year;
(ii) as soon as available and in any event within 90 days after
the end of each fiscal year of such Facility Borrower, copies of
financial statements of such Facility Borrower and its Subsidiaries
consisting of, at a minimum, balance sheets of such Facility Borrower
and its Subsidiaries on a consolidated basis as of the end of such
fiscal year, and related statements of net earnings and cash flows for
such fiscal year, all in reasonable detail and certified by independent
public accountants of nationally recognized standing selected by such
Facility Borrower and stating in comparative form the respective
figures as of the end of and for the previous fiscal year;
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(iii) concurrently with the financial statements for each
quarterly accounting period and for each fiscal year of such Facility
Borrower furnished pursuant to paragraphs (a)(i) and (a)(ii) of this
Section 7.1, a certificate of a Responsible Officer stating that, based
on an examination which in the opinion of the signer is sufficient to
enable him to make an informed statement, such Facility Borrower and
its Subsidiaries have performed and observed all of, and neither such
Facility Borrower nor any of its Subsidiaries is in default in the
performance or observance of any of, the terms, covenants, agreements
and conditions of this Agreement or, if such Facility Borrower or any
of its Subsidiaries shall be in default, specifying all such defaults
and the nature thereof, of which the signer of such certificate may
have knowledge; and
(iv) such other information relating to the affairs of such
Facility Borrower and its Subsidiaries as any Bank through the
Administrative Agent may from time to time reasonably request.
The reports referred to in this Section 7.1(a) may, at the option of the
relevant Facility Borrower, be delivered via electronic mail to any E-mail
Bank.
(b) (i) Upon written request by any Bank through the Administrative
Agent, each Facility Borrower will furnish to such Bank copies of all such
reports of the type a publicly held corporation would generally make
available to its stockholders as such Facility Borrower shall make available
to its parent company and (ii) upon written request of the Administrative
Agent, each Facility Borrower will furnish to the Administrative Agent all
regular and periodic reports which CFC or any Subsidiary may be required to
file with the Securities and Exchange Commission, the Ontario Securities
Commission or any similar or corresponding government department, commission,
board, bureau or agency, domestic or foreign, or with any securities
exchange.
7.2 Maintenance of Existence. Each Facility Borrower will preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of its business, except for rights,
privileges and franchises the loss of which would not in the aggregate in the
reasonable business judgment of such Facility Borrower have a material
adverse effect on the business, operations, property or financial or other
condition of such Facility Borrower and its Subsidiaries taken as a whole,
and except as otherwise permitted by Section 8.2.
7.3 Notices. Each Facility Borrower will promptly give notice to the
Administrative Agent (which shall notify the Banks) of (a) the occurrence of
any Default or Event of Default (accompanied by a certificate of a
Responsible Officer specifying the nature of such event, the period of
existence thereof, and the action that the relevant Facility Borrower
proposes to take with respect thereto) and (b) the execution and delivery of
any documentation with respect to any Material Indebtedness of CFC or any
Significant Subsidiary if such documentation includes a Financial Covenant
which is more onerous than, or materially different from (it being understood
that a quarterly Debt to Equity Ratio with respect to CFC shall not under any
circumstances be deemed to be "materially different from" the Financial
Covenant contained in Section 8.1), the Financial Covenant contained in
Section 8.1, accompanied by a complete and correct transcription of the text
of such Financial Covenant. The delivery of any such notice shall be deemed
to automatically amend Schedule II to reflect the existence of such Financial
Covenant and the text thereof.
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SECTION 8. NEGATIVE COVENANTS
Each of CFC and, to the extent applicable, CCCL, hereby covenants and
agrees that so long as the Commitments remain in effect, any Loan remains
outstanding and unpaid or any other amount is owing to any Bank or either
Agent hereunder:
8.1 Debt to Equity Ratio. CFC will not permit the ratio of Debt on the
last day of any fiscal quarter of CFC to Equity on such day to be greater
than 11.0 to 1.0.
8.2 Limitation on Fundamental Change. (a) CFC will not (i) merge or
consolidate with any other Person (unless (x) CFC shall be the continuing
corporation and (y) immediately before and immediately after giving effect to
such merger or consolidation, no Default or Event of Default shall have
occurred and be continuing) or (ii) sell or convey all or substantially all
of its assets to any Person.
(b) CCCL will not (i) amalgamate with any other Person (unless (x) the
amalgamated Person shall, if requested by the Administrative Agent, execute
and deliver a confirmation that it is a resident of Canada for purposes of
the Income Tax Act (Canada), a ratification of any outstanding C$ Loans and a
confirmation of its assumption of the CCCL Obligations and (y) immediately
before and immediately after giving effect to such amalgamation, no Default
or Event of Default shall have occurred and be continuing) or (ii) sell or
convey all or substantially all of its assets to any Person (other than CFC).
8.3 Limitation on Liens. (a) CFC will not, and will not permit any
Finance Subsidiary to, create, assume or incur, or suffer to be created,
assumed or incurred or to exist, any Lien in respect of any property of any
character of CFC or such Finance Subsidiary, whether heretofore or hereafter
acquired; excluding, however, from the operation of this covenant:
(i) any deposit of assets of CFC or any of its Finance Subsidiaries
with any surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on appeal by CFC
or any of its Finance Subsidiaries, from any judgment or decree, or in
connection with other proceedings or actions at law or in equity by or
against CFC or any of its Finance Subsidiaries;
(ii) Liens created by any Finance Subsidiary in favor of CFC or a
wholly-owned Subsidiary securing indebtedness of such Finance Subsidiary
to CFC or a wholly-owned Subsidiary (which Liens cannot be transferred
except to CFC or to another wholly-owned Subsidiary);
(iii) any deposits to secure public or statutory obligations of CFC or
any of its Finance Subsidiaries, other than any such deposit made as a
result of or in connection with the occurrence of any of the events
described in clause (i), (ii), (iii) or (iv) of Section 9(g);
(iv) any purchase money Liens in respect of fixed assets or other
physical or real properties heretofore or hereafter acquired by CFC or
any of its Finance Subsidiaries, or any Liens existing in respect of
such property at the time of acquisition thereof; provided, however,
that no such Lien shall extend to or cover any other property of CFC or
such Finance Subsidiary, as the case may be;
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(v) any Liens which are (A) in respect of fixed assets or other
physical properties of a corporation which is not a Finance Subsidiary
as of the date hereof, and (B) in existence at the time such corporation
becomes a Finance Subsidiary;
(vi) the extension, renewal or replacement of any Lien permitted by
paragraphs (i) through (v) above in respect of the same property
theretofore subject thereto or the extension, renewal or replacement
(without increase of principal amount) of the indebtedness secured
thereby;
(vii) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of CFC or such Finance Subsidiary,
as the case may be, in accordance with GAAP;
(viii) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business (A) which are not overdue for a period of more than 60 days or
(B) which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on
the books of CFC or such Finance Subsidiary, as the case may be, in
accordance with GAAP;
(ix) easements, rights-of-way, zoning and similar restrictions and
other similar encumbrances or title defects incurred in the ordinary
course of business which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value
of the property subject thereto or interfere with the ordinary conduct
of the business of CFC or its Finance Subsidiaries;
(x) any attachment or judgment lien, unless the judgment it secures
shall not, within 30 days after the entry thereof, have been discharged
or execution thereof stayed pending appeal, or shall not have been
discharged within 30 days after the expiration of any such stay;
(xi) Liens granted on assets in connection with leveraged leases and
project financings entered into in the ordinary course of the Finance
Business;
(xii) Liens on receivables payable in foreign currencies (other than
C$) to secure borrowings in foreign countries (other than Canada); and
(xiii) Liens to secure Indebtedness and other obligations of CFC or any
of its Finance Subsidiaries not otherwise permitted by this Section 8.3,
but only to the extent that the aggregate amount of Indebtedness and
other obligations secured thereby does not at any time exceed
$100,000,000 (or the equivalent thereof in any other currency).
(b) CFC will not permit any Domestic Subsidiary that is not a Finance
Subsidiary to create, assume or incur, or suffer to be created, assumed or
incurred or to exist, any Lien in respect of any property of any character of
such Domestic Subsidiary, whether heretofore or hereafter acquired,
excluding, however, from the operation of this covenant:
(i) Liens on property of such Domestic Subsidiary that would be
permitted under Section 8.3(a) if such Domestic Subsidiary were a
Finance Subsidiary;
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(ii) Liens on property of such Domestic Subsidiary that are incurred in
the ordinary course of the Finance Business or the Real Estate Business
of such Domestic Subsidiary; and
(iii) Liens on any property of such Domestic Subsidiary if such
Domestic Subsidiary is a "single purpose" entity formed for the purpose
of holding title to such property and engages in no activities other
than those related to holding title to such property.
8.4 Additional Covenants. At any time after the occurrence of a Change
of Control:
(a) Limitation on Dividends, Investments, etc. CFC shall not (i)
declare or pay any dividend (other than dividends payable solely in
common stock of CFC) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any shares
of any class of Capital Stock of CFC, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of
CFC or any Subsidiary or (ii) make, or permit any Subsidiary to make,
any investment, loan, advance, capital contribution or extension of
credit (including by way of guaranty in favor of third party creditors),
whether in cash or property or otherwise, in or to or for the benefit of
any CFC Affiliate, except that (x) so long as no Event of Default has
occurred and is continuing (or would occur after giving effect thereto),
CFC may declare and pay any scheduled dividend on, and make redemptions
of, preferred stock issued by CFC to any Person (other than a CFC
Affiliate) to the extent permitted by the terms thereof and (y) CFC and
its Subsidiaries may make investments, loans, advances and extensions of
credit in or to or for the benefit of any CFC Affiliate in the ordinary
course of its Finance Business consistent with historical practices (in
each case determined as of the date of such Change of Control) and in
accordance with Section 8.4(c).
(b) Minimum Equity. CFC shall not permit Equity (determined
without giving effect to any redemption of preferred stock of CFC made
pursuant to Section 8.4(a) after the date of such Change of Control) to
be less than an amount equal to Equity as of the day immediately
preceding the occurrence of such Change of Control minus $250,000,000.
(c) Limitation on Amendments to Intercompany Agreements; CFC
Affiliate Transactions. CFC shall not, and shall not permit any
Subsidiary to, (i) amend or modify, or agree to amend or modify, any of
the provisions of any Intercompany Agreement in a manner materially
adverse to the interests of either (x) CFC and its Subsidiaries taken as
a whole or (y) the Banks, or (ii) enter into, or agree to enter into,
any Intercompany Agreement which is materially adverse to the interests
of either (x) CFC and its Subsidiaries taken as a whole or (y) the
Banks. In addition, CFC shall not, and shall not permit any Subsidiary
to, engage in any transaction with any CFC Affiliate (other than CFC and
its Subsidiaries) on terms substantially less favorable to CFC or such
Subsidiary than would be obtainable at the time in comparable
transactions of CFC or such Subsidiary with Persons not CFC Affiliates.
As used in this Section 8.4(c), "Intercompany Agreement" means any
agreement between CFC or any Subsidiary and any CFC Affiliate, any
instrument issued by CFC or any Subsidiary to any CFC Affiliate and any
instrument issued by any CFC Affiliate to CFC or any Subsidiary.
(d) Limitation on Lines of Business. CFC shall not, and shall not
permit any Subsidiary to, engage in any business other than the Finance
Business, the Finance-Related Insurance Business and the other
businesses in which CFC and its Subsidiaries are engaged as of
42
the date of such Change of Control, and other than businesses in which
CFC or any of its Subsidiaries may be involved in connection with or
related to any workout, liquidation, foreclosure or other realization
on or disposition of assets in which it has a security interest, or any
other exercise of rights or remedies pursuant to a workout in
connection with any financing (whether equity or debt) provided by CFC
or any of its Subsidiaries to any Person.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) CFC or CCCL shall fail to pay any principal of any Loan when due in
accordance with the terms hereof; or to pay any interest on any Loan or
any fee or other amount owing hereunder within five Business Days after
any such interest, fee or other amount becomes due in accordance with
the terms hereof; or
(b) any representation or warranty made by either Facility Borrower
herein, or deemed made by either Facility Borrower pursuant to Section 5
or 6, or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on
or as of the date made, or deemed made; or
(c) either Facility Borrower shall default in the observance or
performance of any agreement contained in Section 8.1, 8.2 or 8.4; or
(d) either Facility Borrower shall default in the observance or
performance of any other agreement, covenant or term contained in this
Agreement (including any failure to make any payment required hereunder
other than as described in paragraph (a) above), and such default shall
continue unremedied for a period of 30 days after receipt by such
Facility Borrower of notice of such default from the Administrative
Agent; or
(e) CFC or any Significant Subsidiary shall default in any payment of
$25,000,000 (or the equivalent thereof in any other currency) or more of
principal of or interest on any Indebtedness or in the payment of
$25,000,000 (or the equivalent thereof in any other currency) or more on
account of any guarantee in respect of Indebtedness, beyond the period
of grace, if any, provided in the instrument or agreement under which
such Indebtedness or guarantee was created; or
(f) (i) CFC or any of its Significant Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it
a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or for all
or any substantial part of its assets, or CFC or any of its Significant
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against CFC or any of its
Significant Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B)
remains undismissed,
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undischarged or unbonded for a period of 60 days; or (iii) there shall
be commenced against CFC or any of its Significant Subsidiaries any
case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) CFC or any of its Significant Subsidiaries shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii)
above; or (v) CFC or any of its Significant Subsidiaries shall admit in
writing its inability to pay its debts generally as they become due; or
(g) (i) any Person shall engage in any Prohibited Transaction involving
any Plan, (ii) any Accumulated Funding Deficiency, whether or not
waived, shall exist with respect to any Plan, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
institution of proceedings is, in the reasonable opinion of the Required
Banks, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, and, in the case of a Reportable Event, the
continuance of such Reportable Event unremedied for ten days after
notice of such Reportable Event pursuant to Section 4043(a), (c) or (d)
of ERISA is given or the continuance of such proceedings for ten days
after commencement thereof, as the case may be, (iv) any Single Employer
Plan shall terminate for purposes of Title IV of ERISA, or (v) any other
event or condition shall occur or exist with respect to a Single
Employer Plan; and in each case in clauses (i) through (v) above, the
Administrative Agent shall have notified CFC that, in the opinion of the
Required Banks, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to subject
CFC or any of its Subsidiaries to any tax, penalty or other liabilities
in the aggregate material in relation to the business, operations,
property or financial or other condition of CFC and its Subsidiaries
taken as a whole; or
(h) one or more final judgments or decrees shall be entered against CFC
or any of its Significant Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $100,000,000 (or
the equivalent thereof in any other currency) or more, shall have been
unpaid for a period of 60 days and shall not have been stayed; or
(i) Chrysler shall at any time fail to own at least 51% of the issued
and outstanding shares of the common stock of CFC; or
(j) CFC or any of its Significant Subsidiaries shall default in the
observance or performance of any Financial Covenant contained in any
instrument or agreement evidencing, securing or relating to any of its
Material Indebtedness, the effect of which default is to cause, or to
permit the holder or holders of such Material Indebtedness (or a trustee
or agent on behalf of such holder or holders) to cause, such Material
Indebtedness to become due prior to its stated maturity;
then, and in any such event, (a) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above with respect to CFC,
automatically the Commitments shall immediately terminate and the Loans
(including the face amount of all Bankers' Acceptances accepted by any C$
Bank), with accrued interest thereon, and all other amounts owing under this
Agreement shall immediately become due and payable, and (b) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Banks, the Administrative Agent
may, or upon
44
the request of the Required Banks, the Administrative Agent shall, by notice
to CFC, declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Banks, the Administrative Agent may, or upon the request of the
Required Banks, the Administrative Agent shall, by notice of default to CFC,
declare the Loans (including the face amount of all Bankers' Acceptances
accepted by any C$ Bank), with accrued interest thereon, and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly
provided above in this Section 9, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
SECTION 10. THE AGENTS
10.1 Appointment. Each Bank hereby irrevocably designates and appoints
the Administrative Agent as the administrative agent of such Bank under this
Agreement, and each Bank hereby irrevocably authorizes the Administrative
Agent as administrative agent for such Bank to take such action on its behalf
under the provisions of this Agreement and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Each C$ Bank hereby irrevocably designates and
appoints the Canadian Administrative Agent as the Canadian administrative
agent of such Bank under this Agreement, and each C$ Bank hereby irrevocably
authorizes the Canadian Administrative Agent as Canadian administrative agent
for such Bank to take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Canadian Administrative Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, neither Agent shall have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise
exist against either Agent.
10.2 Delegation of Duties. Each Agent may execute any of its duties
under this Agreement by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. Without limiting the foregoing, the Administrative Agent may appoint
CASG as its agent to perform the functions of the Administrative Agent
hereunder relating to the advancing of funds to CFC and distribution of funds
to the Banks and to perform such other related functions of the
Administrative Agent hereunder as are reasonably incidental to such
functions.
10.3 Exculpatory Provisions. Neither Agent nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates
(including, without limitation, CASG) shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any manner to any of
the Banks for any recitals, statements, representations or warranties made by
either Facility Borrower or any Subsidiary or any officer thereof contained
in this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by either Agent under or in
connection with, this Agreement or for any failure of either Facility
Borrower or any Subsidiary to perform its obligations hereunder or
thereunder. Neither Agent shall be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of either Facility Borrower or any Subsidiary.
45
10.4 Reliance by Agents and CASG. Each Agent and CASG shall be entitled
to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, telex or teletype message, statement, order
or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel (including, without limitation,
counsel to CFC), independent accountants and other experts selected by the
relevant Agent. Each Agent and CASG may deem and treat the Bank specified in
the relevant Register with respect to any amount owing hereunder as the owner
thereof for all purposes unless a written notice of assignment, negotiation
or transfer thereof shall have been filed with the Administrative Agent in
accordance with Section 12.7. Each Agent shall be fully justified in failing
or refusing to take any action under this Agreement unless it shall first
receive such advice or concurrence of the Required Banks (or, if so specified
in this Agreement, all of the Banks) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Each Agent shall, in all cases, be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Banks (or, if so specified in this
Agreement, all of the Banks), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Banks and all
future holders of the obligations owing by the Facility Borrowers hereunder.
10.5 Notice of Default. Neither Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder
unless such Agent has received notice from a Bank or either Facility Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that either
Agent receives such a notice, such Agent shall give notice thereof to the
Banks, and, if such notice is received from a Bank, such Agent shall give
notice thereof to each Facility Borrower and each other Bank. Subject to the
proviso contained in Section 12.1, the Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks (or, if so specified in this
Agreement, all of the Banks); provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Banks.
10.6 Non-Reliance on Agents, Other Banks and CASG. Each Bank expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates (including,
without limitation, CASG) has made any representations or warranties to it
and that no act by either Agent hereafter taken, including any review of the
affairs of either Facility Borrower, shall be deemed to constitute any
representation or warranty by either Agent to any Bank. Each Bank represents
to each Agent and CASG that it has, independently and without reliance upon
either Agent, any other Bank or CASG, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Facility Borrowers and made its own
decision to make its Loans under, and enter into, this Agreement. Each Bank
also represents that it will, independently and without reliance upon either
Agent, any other Bank or CASG, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other
condition and creditworthiness of the Facility Borrowers. Except for notices,
reports and other documents expressly required to be furnished to the Banks
by the relevant Agent hereunder, neither Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
46
concerning the business, operations, property, financial and other condition
or creditworthiness of either Facility Borrower which may come into the
possession of such Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Banks (or, in the case of the indemnity in
favor of the Canadian Administrative Agent, the C$ Banks) agree to indemnify
each Agent and CASG (to the extent not reimbursed by either Facility Borrower
and without limiting the obligation of each Facility Borrower to do so),
ratably according to the respective amounts of their respective Commitment
Percentages (or, in the case of the indemnity in favor of the Canadian
Administrative Agent, the C$ Banks' respective C$ Commitment Percentages) in
effect on the date on which indemnification is sought under this Section 10.7
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated, ratably in accordance with such Commitment Percentages
(or C$ Commitment Percentages) immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Loans) be imposed on, incurred by or asserted
against such Agent or CASG in any way relating to or arising out of this
Agreement or any other documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action
taken or omitted by such Agent or CASG under or in connection with any of the
foregoing, provided that no Bank shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
such Agent's or CASG's, as the case may be, gross negligence or willful
misconduct. The agreements in this Section 10.7 shall survive the payment of
the Loans and all other amounts payable hereunder.
10.8 Agents in their Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with each Facility Borrower as though such Agent was not an Agent
hereunder. With respect to its Loans made or renewed by it, each Agent shall
have the same rights and powers under this Agreement as any Bank and may
exercise the same as though it were not an Agent, and the terms "Bank" and
"Banks" shall include such Agent in its individual capacity.
10.9 Successor Agents. Each Agent may resign as Agent upon 30 days'
notice to the Banks and the Facility Borrowers, and may be removed at any
time with or without cause by the Required Banks. If an Agent shall resign or
be removed as Agent under this Agreement, then either (a) the Required Banks
shall appoint from among the Banks a successor administrative agent or
Canadian administrative agent, as applicable, which successor agent shall be
approved by CFC, or (b) if a successor agent shall not have been so appointed
and approved within the 30-day period following such Agent's notice to the
Banks or its removal as Agent, such Agent shall then, with the consent of
CFC, appoint a successor agent who shall serve as Administrative Agent or
Canadian Administrative Agent, as applicable, until such time, if any, as the
Required Banks appoint, and CFC approves, a successor agent as provided in
(a) above. Upon its appointment pursuant to either clause (a) or (b) above,
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent or the Canadian Administrative Agent, as applicable, and
the terms "Administrative Agent", "Canadian Administrative Agent" and
"Agent", as applicable, shall mean such successor agent effective upon its
appointment, and the former Agent's rights, powers and duties as Agent shall
be terminated, without any other or further act or deed on the part of such
former Agent or any of the parties to this Agreement or any holders of the
obligations owing by the Facility Borrowers hereunder. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Section 10
shall inure to its benefit as to any actions taken or omitted to be taken by
it while it was Agent under this Agreement.
47
10.10 The Managing Agents. No Managing Agent in its capacity as such
shall have any rights, duties or responsibilities hereunder, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against any Managing Agent in its capacity as
Managing Agent.
SECTION 11. GUARANTEE
11.1 Guarantee. In order to induce the Agents and the Banks to execute
and deliver this Agreement and to make or maintain the C$ Loans, and in
consideration thereof, CFC hereby unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety, to the Administrative Agent, for
the ratable benefit of the Agents and the Banks, the prompt and complete
payment and performance by CCCL when due (whether at stated maturity, by
acceleration or otherwise) of the CCCL Obligations. The guarantee contained
in this Section 11, subject to Section 11.5, shall remain in full force and
effect until the CCCL Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto CCCL may be
free from any CCCL Obligations.
CFC agrees that whenever, at any time, or from time to time, it shall
make any payment to either Agent or any Bank on account of its liability
under this Section 11, it will notify the Administrative Agent (and, in the
cases of payments to it, the Canadian Administrative Agent) and such Bank in
writing that such payment is made under the guarantee contained in this
Section 11 for such purpose. No payment or payments made by CCCL or any other
Person or received or collected by either Agent or any Bank from CCCL or any
other Person by virtue of any action or proceeding or any setoff or
appropriation or application, at any time or from time to time, in reduction
of or in payment of the CCCL Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of CFC under this Section 11 which,
notwithstanding any such payment or payments, shall remain liable for the
unpaid and outstanding CCCL Obligations until, subject to Section 11.5, the
CCCL Obligations are paid in full and the Commitments are terminated.
11.2 No Subrogation, Contribution, Reimbursement or Indemnity.
Notwithstanding anything to the contrary in this Section 11, CFC hereby
irrevocably waives (a) all rights which may have arisen in connection with
the guarantee contained in this Section 11 to be subrogated to any of the
rights (whether contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of either Agent or any Bank against
CCCL or against either Agent or any Bank for the payment of the CCCL
Obligations and (b) all contractual, common law, statutory and other rights
of reimbursement, contribution, exoneration or indemnity (or any similar
right) from or against CCCL or any other Person which may have arisen in
connection with the guarantee of the CCCL Obligations contained in this
Section 11, in each case until all CCCL Obligations have been paid in full.
So long as the CCCL Obligations remain outstanding, if any amount shall be
paid by or on behalf of CCCL or any other Person to CFC on account of any of
the rights waived in this Section 11.2, such amount shall be held by CFC in
trust, segregated from other funds of CFC, and shall, forthwith upon receipt
by CFC, be turned over to the Administrative Agent in the exact form received
by CFC (duly indorsed by CFC to the Administrative Agent, if required), to be
applied against the CCCL Obligations, whether matured or unmatured, in such
order as the Administrative Agent may determine. The provisions of this
Section 11.2 shall survive the term of the guarantee contained in this
Section 11 and the payment in full of the CCCL Obligations and the
termination of the Commitments.
11.3 Amendments, etc. with respect to the CCCL Obligations. CFC shall
remain obligated under this Section 11 notwithstanding that, without any
reservation of rights against CFC, and
48
without notice to or further assent by CFC, any demand for payment of or
reduction in the principal amount of any of the CCCL Obligations made by
either Agent or any Bank may be rescinded by such Agent or such Bank, and any
of the CCCL Obligations continued, and the CCCL Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security
or guarantee therefor or right of offset with respect thereto, may, from time
to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by either Agent or
any Bank, and this Agreement and any other documents executed and delivered
in connection herewith may be amended, modified, supplemented or terminated,
in whole or in part, as may be deemed advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by either
Agent or any Bank for the payment of the CCCL Obligations may be sold,
exchanged, waived, surrendered or released. No Agent or Bank shall have any
obligation to protect, secure, perfect or insure any lien at any time held by
it as security for the CCCL Obligations or for the guarantee contained in
this Section 11 or any property subject thereto.
11.4 Guarantee Absolute and Unconditional. CFC waives any and all
notice of the creation, renewal, extension or accrual of any of the CCCL
Obligations and notice of or proof of reliance by either Agent or any Bank
upon the guarantee contained in this Section 11 or acceptance of the
guarantee contained in this Section 11; the CCCL Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 11; and all dealings between CFC or CCCL,
on the one hand, and the Agents and the Banks, on the other, shall likewise
be conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 11. CFC waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon
CFC or CCCL with respect to the CCCL Obligations. The guarantee contained in
this Section 11 shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement, any of the CCCL Obligations or any
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by either Agent or any Bank,
(b) the legality under applicable Requirements of Law of repayment by CCCL of
any CCCL Obligations or the adoption of any Requirement of Law purporting to
render any CCCL Obligations null and void, (c) any defense, setoff or
counterclaim (other than a defense of payment or performance by CCCL) which
may at any time be available to or be asserted by CFC or CCCL against either
Agent or any Bank, or (d) any other circumstance whatsoever (with or without
notice to or knowledge of CFC or CCCL) which constitutes, or might be
construed to constitute, an equitable or legal discharge of CCCL for any CCCL
Obligations, or of CFC under the guarantee contained in this Section 11, in
bankruptcy or in any other instance. When either Agent or any Bank is
pursuing its rights and remedies under this Section 11 against CFC, such
Agent or Bank may, but shall be under no obligation to, pursue such rights
and remedies as it may have against any CCCL or any other Person or against
any collateral security or guarantee for the CCCL Obligations or any right of
offset with respect thereto, and any failure by either Agent or any Bank to
pursue such other rights or remedies or to collect any payments from CCCL or
any such other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of CCCL or
any such other Person or of any such collateral security, guarantee or right
of offset, shall not relieve CFC of any liability under this Section 11, and
shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Agents and the Banks against CFC.
11.5 Reinstatement. The guarantee contained in this Section 11 shall
continue to be effective, or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any of the CCCL Obligations is
rescinded or must otherwise be restored or returned by either Agent or any
Bank upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of CCCL or upon or as a
49
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, CCCL or any substantial part of its property,
or otherwise, all as though such payments had not been made.
11.6 Payments. (a) CFC hereby agrees that any payments in respect of
the CCCL Obligations pursuant to this Section 11 will be paid without setoff
or counterclaim in C$ to (unless otherwise specified by the Administrative
Agent) the Canadian Administrative Agent at the office of the Canadian
Administrative Agent specified in Section 12.2.
(b) In the event that any law, regulation, treaty or directive (whether
or not in effect on the date hereof), shall require any Taxes to be withheld
or deducted from any amount payable to any Bank under the guarantee contained
in this Section 11, upon notice by such Bank to CFC (with a copy to the
Administrative Agent) to the effect that as a result of such law, rule,
regulation, treaty or directive, Taxes are being withheld or deducted from
amounts payable to such Bank under the guarantee contained in this Section
11, CFC will pay to such Bank (or, if applicable, the relevant Agent or any
other agent acting on such Bank's behalf) additional amounts (in the relevant
currency) so that such additional amounts, together with amounts otherwise
payable under the guarantee contained in this Section 11, will yield to such
Bank, after deduction from such increased amount of all Taxes required to be
withheld or deducted therefrom, an amount that would be equal to the amount
that such Bank would have received under the guarantee contained in this
Section 11 had no such withholding or deduction been required calculated
after taking into account all applicable Taxes and Other Taxes. If CFC fails
to pay any Taxes when due following notification by any Bank as provided
above, CFC shall indemnify such Bank for any incremental taxes, interest or
penalties that may become payable by any Bank as a result of any such failure
by CFC to make such payment. Within 30 days after the payment by CFC of any
Taxes withheld or deducted from any amount payable to any Bank under the
guarantee contained in this Section 11, CFC will furnish to such Bank (with a
copy to the Administrative Agent), the original or a certified copy of a
receipt evidencing payment thereof.
11.7 Judgments Relating to Guarantee. (a) If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due under
the guarantee contained in this Section 11 in one currency into another
currency, CFC agrees, to the fullest extent that it may effectively do so,
that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the relevant Bank (or
agent acting on its behalf) could purchase the first currency with such other
currency for the first currency on the Banking Day immediately preceding the
day on which final judgment is given.
(b) The obligations of CFC in respect of any sum due under the
guarantee contained in this Section 11 shall, notwithstanding any judgment in
a currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with this Section 11 (the "Agreement Currency"), be
discharged only to the extent that, on the Banking Day following receipt by
any Bank (or agent acting on its behalf) (the "Applicable Creditor") of any
sum adjudged to be so due in the Judgment Currency, the Applicable Creditor
may in accordance with normal banking procedures in the relevant jurisdiction
purchase the Agreement Currency with the Judgment Currency; if the amount of
the Agreement Currency so purchased is less than the sum originally due to
the Applicable Creditor in the Agreement Currency, CFC agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Applicable
Creditor against such loss, provided, that if the amount of the Agreement
Currency so purchased exceeds the sum originally due to the Applicable
Creditor, the Applicable Creditor agrees to remit such excess to CFC. The
obligations of CFC contained in this Section 11.7 shall survive the
50
termination of the guarantee contained in this Section 11 and the payment of
all amounts owing hereunder.
11.8 Independent Obligations. The obligations of CFC under the guarantee
contained in this Section 11 are independent of the obligations of CCCL, and
a separate action or actions may be brought and prosecuted against CFC
whether or not CCCL be joined in any such action or actions. CFC waives, to
the full extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. With the written consent of the Required
Banks, the Administrative Agent and the Facility Borrowers may, from time to
time, enter into written amendments, supplements or modifications hereto for
the purpose of adding any provisions to this Agreement or changing in any
manner the rights of the Banks or of either Facility Borrower hereunder, and
with the written consent of the Required Banks the Administrative Agent on
behalf of the Banks may execute and deliver to the Facility Borrowers a
written instrument waiving, on such terms and conditions as the
Administrative Agent may specify (with such consent) in such instrument, any
of the requirements of this Agreement or any Default or Event of Default and
its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (a) extend the maturity of any
Loan, or reduce the rate or extend the time of payment of interest thereon,
or reduce the principal amount thereof, or reduce the amount or extend the
time of payment of any Facility Fee or Acceptance Fee hereunder, or change
the amount or terms of any Bank's Commitment, or amend, modify or waive any
provision of this Section 12.1 or reduce the percentages specified in the
definition of Required Banks, Required U.S. Banks or Required Canadian Banks,
or consent to the assignment or transfer by either Facility Borrower of any
of its rights and obligations under this Agreement or amend, modify or waive
the provisions of Section 12.8, in each case without the prior written
consent of each Bank directly affected thereby; (b) extend the Termination
Date without the prior written consent of each Bank; or (c) release CFC from
its obligations under the guarantee contained in Section 11 without the prior
written consent of each C$ Bank; or (d) amend, modify or waive any provision
of Section 10 without the prior written consent of each Agent directly
affected thereby; or (e) amend, modify or waive any provision of Section
10.10 without the prior written consent of each Managing Agent. Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the Banks and shall be binding upon each Facility Borrower, the
Banks, each Agent and all future holders of the obligations owing by the
Facility Borrowers hereunder. In the case of any waiver, each Facility
Borrower, the Banks and each Agent shall be restored to their former position
and rights hereunder, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right
consequent thereon. The Administrative Agent shall give the Canadian
Administrative Agent prompt written notice of any waiver, amendment,
supplement or modification entered into pursuant to this Section 12.1.
12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing, by facsimile
transmission or telex or, in the case of any E-mail Bank, by electronic mail,
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered by hand or when deposited in the mail,
first class or air postage prepaid, or, in the case of facsimile
transmission, when transmitted, receipt acknowledged, or, in the case of
telex notice, when sent, answerback received, or, in the case of electronic
mail, when sent, electronic confirmation of receipt received; addressed as
follows in the case of the Facility Borrowers, the Canadian
51
Administrative Agent and the Administrative Agent, and as set forth in an
administrative questionnaire delivered to the Administrative Agent in the
case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the obligations owing by the Facility Borrowers hereunder:
CFC: Chrysler Financial Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
CCCL: Chrysler Credit Canada Ltd.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President and Treasurer
Telex: 230663
Answerback: CHRYFINCL TRMI
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative Agent: The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With copies to: The Chase Manhattan Bank Loan
and Agency Services Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telex: 353-006
Answerback: ABSC NYK
Facsimile: 212-622-0002
The Canadian
Administrative Agent: Royal Bank of Canada
Loan Structuring and Syndications
Royal Bank Plaza, South Tower
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Manager, Business Operations
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon an Agent pursuant to
Section 2.2, 2.3, 3.2, 3.3, 3.4, 4.6 or 4.7 shall not be effective until
received.
51
12.3 Clearing Accounts. (a) Each US$ Bank irrevocably authorizes the
Administrative Agent and CASG to cause such Bank's Clearing Account to be
debited as contemplated in Section 2.2 and to cause to be created an
overdraft in such account if the balance in such Bank's Clearing Account on a
particular Borrowing Date is less than the amount of the U.S. Loan to be made
by such Bank on such day. In addition each US$ Bank irrevocably authorizes
the Administrative Agent and CASG to cause such Bank's Clearing Account to be
credited with its ratable share of payments received by the Administrative
Agent from CFC. The Clearing Account of each US$ Bank shall be maintained at
its own expense and free of charge to the Administrative Agent, CASG and CFC.
(b) The Administrative Agent may at any time in its sole discretion,
upon prior notice to CFC and the US$ Banks, discontinue the use of ACH
procedures in connection with U.S. R/C Loans made pursuant hereto, and the
US$ Banks shall thereafter fund each U.S. Loan required to be made by them
hereunder by making available the amount thereof to the Administrative Agent
for the account of CFC at the office of the Administrative Agent set forth in
Section 12.2 in funds immediately available to the Administrative Agent.
12.4 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of either Agent or any Bank, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or of the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
12.5 Survival of Representations and Warranties. All representations
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement.
12.6 Payment of Expenses. Each of CFC and, as applicable, CCCL, agrees:
(a) to pay or reimburse the Administrative Agent for all reasonable
out-of-pocket costs and expenses incurred in connection with the
preparation and execution of, and any amendment, supplement or
modification to or waiver under, this Agreement and any other documents
prepared in connection herewith, and the consummation of the
transactions contemplated hereby and the administration of this
Agreement, including, without limitation, the reasonable fees and
disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel to the
Administrative Agent and the Banks;
(b) to pay or reimburse each Bank and each Agent for all costs and
expenses (other than legal fees and disbursements) incurred in
connection with the enforcement or preservation of any rights under this
Agreement and any such other documents, and the reasonable fees and
disbursements of one firm of special counsel in each of the United
States and Canada to the Agents and the Banks; and
(c) to (i) indemnify each Bank from and against liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements (other than legal fees and
disbursements) of any kind whatsoever (and, with respect to any
proceeding or related proceedings, the reasonable fees and disbursements
of one firm of special counsel to the relevant Banks in connection with
such proceeding(s)) which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed
on, incurred by or
53
asserted against such Bank in any way relating to or arising out of this
Agreement or any other documents contemplated by or referred to herein
or the transactions contemplated hereby or any action taken or omitted
by such Bank under or in connection with any of the foregoing, provided
that no Borrower shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from (x)
the ordinary course of administration of this Agreement or such other
documents by any Bank or (y) any Bank's gross negligence or willful
misconduct or bad faith; and (ii) pay or reimburse (x) each Bank for any
payments made by such Bank to either Agent or CASG pursuant to the
provisions of Section 10.7 and (y) each Agent and CASG for any and all
liabilities, expenses or disbursements incurred by any of them which
pursuant to the provisions of Section 10.7 are the subject of
indemnification payments from the Banks to the extent that such Agent or
CASG, as the case may be, for whatever reason, did not receive such
indemnification payments from any Bank or Banks.
The agreements in this Section 12.6 shall survive repayment of the Loans and
all other amounts payable hereunder.
12.7 Successors and Assigns. (a) This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns except that (x) no Borrower may assign its rights or
obligations hereunder without the prior consent of all of the Banks (in the
case of CFC) or all of the C$ Banks (in the case of CCCL), and (y) no
assignment by a Bank of any of its rights or obligations hereunder shall be
effective unless (i) the assignee is a Commercial Bank (unless otherwise
agreed by CFC in its sole discretion), (ii) the assignee shall have
designated in writing to the Administrative Agent an account at the office of
a bank that is an ACH member to serve as such assignee's "Clearing Account"
hereunder, (iii) in the event of an assignment of less than all of such
Bank's obligations, (A) the principal amount of such Bank's obligations
(which may constitute U.S. Commitments and/or Canadian Commitments) so
assigned shall be in an aggregate amount of $8,000,000 or greater and (B)
after giving effect to any such assignment, the transferor Bank and the
assignee (in each case together with any Bank which is a subsidiary,
affiliate, branch or agency of such transferor Bank or assignee,
respectively) shall each have obligations hereunder (which may constitute
U.S. Commitments and/or Canadian Commitments) aggregating not less than
$8,750,000 (unless, in each case, at CFC's discretion, a lesser amount is
mutually agreed upon between CFC and such Bank or assignee, as applicable),
(iv) CFC and the Administrative Agent shall have consented to the making of
such assignment (which consent in each case shall not be unreasonably
withheld or delayed), (v) the transferor Bank, the assignee, the
Administrative Agent and CFC (if its consent to such assignment is required
hereunder) shall have executed and delivered an Assignment and Acceptance
substantially in the form of Exhibit D-1, and (vi) the transferor Bank shall
have paid to the Administrative Agent a registration and processing fee of
$2,500 (or such lesser amount as may be agreed to by the Administrative
Agent); provided, however, that no consent by CFC shall be required in the
case of assignments to a Commercial Bank controlled by, controlling or under
common control with an assignor Bank or pursuant to a merger or consolidation
of such Bank with another entity or a similar transaction involving such
Bank. Upon the effectiveness of any assignment pursuant to this Section 12.7,
Schedule I shall be deemed to be amended to reflect such assignment.
Each Bank may sell participations in its Commitment or in all or any part of
any Loan made by it hereunder to a Commercial Bank, in which event the
participant shall not have any rights under this Agreement (the participant's
rights against such Bank in respect of such participation to be those set
forth in the participation agreement executed by such Bank in favor of the
participant thereto) and all amounts payable by the Facility Borrowers under
Sections 2, 3 and 4 shall be determined as if such Bank had not sold such
participations; provided that (1) the terms of any participation agreement or
certificate relating to any such participation shall prohibit
54
any subparticipations by such participant; (2) any such participation
agreement or certificate shall permit the Bank granting such participations
the right to consent to waivers, amendments or supplements to this Agreement
without the consent of such participant except in the case of (x) waivers of
any Default or Event of Default described in Section 9(a), and (y) any
amendment or modification extending the maturity of any Loan, or reducing the
interest rate in respect of any Loan, or reducing any Facility Fee, or
extending the time of payment of interest on any Loan or of any Facility Fee,
or reducing the principal amount of any Loan, in each case to the extent such
waiver, amendment or supplement directly affects such participant and (3) a
participating interest of at least $8,000,000 shall be sold pursuant to any
such participation (unless, at CFC's discretion, a lesser amount is mutually
agreed upon between CFC and such Bank).
(b) Nothing herein shall prohibit any US$ Bank from pledging or
assigning all or any portion of its U.S. R/C Loans to any Federal Reserve
Bank in accordance with applicable law. In order to facilitate such pledge or
assignment, CFC hereby agrees that, upon request of any US$ Bank at any time
and from time to time after CFC has made its initial borrowing hereunder, CFC
shall provide to such Bank, at CFC's own expense, a promissory note,
substantially in the form of Exhibit E, evidencing the U.S. R/C Loans owing
to such Bank.
(c) (i) The Administrative Agent shall maintain at its address referred
to in Section 12.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "U.S. Register") for the recordation of the names and
addresses of the US$ Banks, the U.S. Commitments of such Banks, and the
principal amount of each category of U.S. Loan owing to each such Bank from
time to time. The entries in the U.S. Register shall be conclusive, in the
absence of clearly demonstrable error, and CFC, the Administrative Agent and
the Banks may treat each Person whose name is recorded in the U.S. Register
as the owner of the U.S. R/C Loans recorded therein for all purposes of this
Agreement. The U.S. Register shall be available for inspection by CFC or any
US$ Bank at any reasonable time and from time to time upon reasonable prior
notice. The Administrative Agent shall give prompt written notice to CFC of
the making of any entry in the U.S. Register or any change in any such entry.
(ii) The Canadian Administrative Agent shall maintain at its address
referred to in Section 12.2 a register (the "Canadian Register") for the
recordation of the names and addresses of the C$ Banks, the Canadian
Commitments of such Banks, and the principal amount of each category of C$
Loan owing to each such Bank from time to time. The entries in the Canadian
Register shall be conclusive, in the absence of clearly demonstrable error,
and CCCL, the Canadian Administrative Agent and the Banks may treat each
Person whose name is recorded in the Canadian Register as the owner of the C$
Loans recorded therein for all purposes of this Agreement. The Canadian
Register shall be available for inspection by CFC, CCCL or any C$ Bank at any
reasonable time and from time to time upon reasonable prior notice. The
Canadian Administrative Agent shall give prompt written notice to CCCL of the
making of any entry in the Canadian Register or any change in any such entry.
12.8 Right of Set-off. Upon (a) the occurrence and during the
continuance of an Event of Default and (b) with the consent of the Required
Banks, each Bank is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Bank (including,
without limitation, its branches) to or for the credit or the account of
either Facility Borrower against any and all of the obligations of such
Facility Borrower now or hereafter existing under this Agreement,
irrespective of whether or not such Bank shall have made any demand under
this Agreement and although such obligations may be unmatured. Each Bank
agrees promptly to notify the relevant Facility Borrower after any such
set-off and application made by such
55
Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Bank under this
Section 12.8 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Bank may have.
12.9 Adjustments. If any Bank (a "benefitted Bank") shall at any time,
except in connection with any termination, replacement or assignment of or by
such Bank pursuant to this Agreement, receive any payment of all or part of
its U.S. R/C Loans or C$ Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
clause (f) of Section 9, or otherwise) in a greater proportion than any such
payment to, or any collateral received by, any other Bank, if any, in respect
of such other Bank's U.S. R/C Loans or C$ Loans, as the case may be, or
interest thereon, such benefitted Bank shall purchase for cash from the other
US$ Banks or C$ Banks, as the case may be, such portion of each such other
Bank's U.S. R/C Loans or C$ Loans, as the case may be, or shall provide such
other relevant Banks with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefitted Bank to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the other relevant Banks; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Bank, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without interest. Each
Facility Borrower agrees that each Bank so purchasing a portion of another
Bank's U.S. R/C Loans or C$ Loans, as the case may be, may exercise all
rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Bank were the direct holder of
such portion.
12.10 New Banks; Commitment Increases; Commitment Reallocations. (a)
With the consent of CFC and upon notification to the Administrative Agent,
one or more additional Commercial Banks may become a party to this Agreement
by executing a New Bank Supplement hereto with CFC and the Administrative
Agent, substantially in the form of Exhibit D-2, whereupon such Commercial
Bank (herein called a "New Bank") shall become a Bank for all purposes and to
the same extent as if originally a party hereto and shall be bound by and
entitled to the benefits of this Agreement, and Schedule I hereto shall be
deemed to be amended to add the name and Commitment of such New Bank. Each
New Bank shall be designated as a US$ Bank with a U.S. Commitment and/or a C$
Bank with a Canadian Commitment, as specified in such New Bank Supplement.
(b) With the consent of CFC and upon notification to the Administrative
Agent, any Bank may increase the amount of its Commitment by executing a
Commitment Increase Supplement hereto with CFC and the Administrative Agent,
substantially in the form of Exhibit D-3, whereupon such Bank shall be bound
by and entitled to the benefits of this Agreement with respect to the full
amount of its Commitment as so increased (which increase shall be allocated
to its U.S. Commitment and/or its Canadian Commitment, as specified in such
Commitment Increase Supplement), and Schedule I hereto shall be deemed to be
amended to add the increased Commitment of such Bank.
(c) With the consent of the Administrative Agent (which shall not be
unreasonably withheld), so long as no Default or Event of Default shall have
occurred and be continuing, CFC may reallocate all or any portion of the
Canadian Commitment of any C$ Bank to the U.S. Commitment of such C$ Bank's
Related US$ Bank or reallocate all or any portion of the U.S. Commitment of
any US$ Bank to the Canadian Commitment of such US$ Bank's Related C$ Bank by
executing a Commitment Reallocation Supplement hereto with the Administrative
Agent, substantially in the form of Exhibit D-4, whereupon the affected US$
Bank and C$ Bank shall be bound by and entitled to the benefits of this
Agreement with respect to the full amount of the U.S. Commitment or Canadian
Commitment of such Bank after giving effect to such reallocation, and
Schedule I hereto shall be deemed to be amended to
56
reflect such reallocation. Each reallocation pursuant to this Section
12.10(c) shall be subject to the prior written consent of the affected US$
Bank and C$ Bank, provided, that each C$ Bank and its Related US$ Bank
confirm that, as of the date hereof, such C$ Bank and its Related US$ Bank
are willing to consider any reallocation of such Related US$ Bank's U.S.
Commitment to such C$ Bank's Canadian Commitment which does not increase such
C$ Bank's Canadian Commitment above its Initial Offered Canadian Commitment
Amount.
(d) (i) If on the date upon which a Commercial Bank becomes a New Bank
(designated as a US$ Bank), upon which a Bank obtains a U.S. Commitment or
upon which a US$ Bank's U.S. Commitment is changed pursuant to Section 12.10,
there is an unpaid principal amount of U.S. R/C Loans, CFC shall borrow U.S.
R/C Loans from, or prepay U.S. R/C Loans of, such Bank, as applicable, in an
amount such that, after giving effect thereto, the quotient of (x) the U.S.
R/C Loans of such Bank of each Type (and, in the case of Eurodollar Loans, of
each Eurodollar Tranche) and (y) such Bank's U.S. Commitment is equal to the
comparable quotient of each other US$ Bank. Any Eurodollar Loan borrowed
pursuant to the preceding sentence shall bear interest at a rate equal to the
respective interest rates then applicable to the Eurodollar Loans of the
other US$ Banks in the same Eurodollar Tranche.
(ii) If on the date upon which a Commercial Bank becomes a New Bank
(designated as a C$ Bank), upon which a Bank obtains a Canadian Commitment or
upon which a C$ Bank's Canadian Commitment is changed pursuant to Section
12.10, there is an unpaid principal amount of C$ Loans, CCCL shall borrow C$
Loans from, or prepay or Defease (in the case of Bankers' Acceptances) C$
Loans of, such Bank, as applicable, in an amount such that, after giving
effect thereto, the quotient of (x) the C$ Loans of such Bank of each
category (and, in the case of Bankers' Acceptances, of each maturity) and (y)
such Bank's Canadian Commitment is equal to the comparable quotient of each
other C$ Bank. Any Bankers' Acceptance borrowed pursuant to the preceding
sentence shall yield an Acceptance Fee at a rate equal to the respective
Acceptance Fee rates then applicable to the Bankers' Acceptances of the other
C$ Banks having comparable maturities.
(e) The Administrative Agent shall advise the Canadian Administrative
Agent and the Banks of each addition of a New Bank and of each change in a
Bank's U.S. Commitment or Canadian Commitment pursuant to this Section 12.10
and of the amount of any borrowing or prepayment required to be made from or
to any such Bank pursuant to this Section 12.10 upon such addition or change.
12.11 Tax Forms. If any Bank which becomes a party to this Agreement on
any day after the date hereof pursuant to Section 12.7 or 12.10 is organized
under the laws of any jurisdiction other than the United States or any state
thereof, such Bank shall, on the date such Person becomes a Bank, (i)
represent to the transferor Bank (if applicable), the Administrative Agent
and the Facility Borrowers that under applicable law and treaties no taxes
will be required to be withheld by the Administrative Agent, the Facility
Borrowers or the transferor Bank (if applicable) with respect to any payments
to be made to such Bank in respect of the Loans hereunder, (ii) furnish to
the transferor Bank (if applicable), the Administrative Agent and CFC either
U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service Form
1001 (wherein such Bank claims entitlement to complete exemption from U.S.
federal withholding tax on all interest payments hereunder) and (iii) agree
(for the benefit of the transferor Bank (if applicable), the Administrative
Agent and the Facility Borrowers) to provide the transferor Bank (if
applicable), the Administrative Agent and CFC a new Form 4224 or Form 1001
upon the expiration or obsolescence of any previously delivered form and
comparable statements in accordance with applicable U.S. laws and regulations
and amendments duly executed and completed by such Bank, and to comply from
time to time with all applicable U.S. laws and regulations with regard to
such withholding tax exemption.
57
12.12 Counterparts. This Agreement may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with CFC and the Administrative Agent.
12.13 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.14 Submission to Jurisdiction; Waivers. Each Facility
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding commenced by any party hereto relating to this Agreement, or
for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of New
York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts, and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that services of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to
CFC at its address set forth in Section 12.2 or at such other address of
which the Administrative Agent shall have been notified with copies
addressed as set forth in Section 12.2; and
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction.
12.15 Integration. This Agreement represents the agreement of each
party with respect to the subject matter hereof and there are no promises or
representations by either Agent or any Bank relative to the subject matter
hereof not reflected herein.
12.16 Judgments Relating to CCCL. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder by
CCCL in one currency into another currency, CCCL agrees, to the fullest
extent that it may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures in the relevant
jurisdiction the relevant Bank could purchase the first currency with such
other currency for the first currency on the Banking Day immediately
preceding the day on which final judgment is given.
(b) The obligations of CCCL in respect of any sum due in C$ to any
party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than C$, be discharged only to the extent that, on
the Banking Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may
in accordance with normal banking procedures in the relevant jurisdiction
purchase C$ with the Judgment Currency; if the amount of C$ so purchased is
less
58
than the sum originally due to the Applicable Creditor in C$, CCCL agrees, as
a separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss, provided, that if the amount of C$ so
purchased exceeds the sum originally due to the Applicable Creditor, the
Applicable Creditor agrees to remit such excess to CCCL. The obligations of
the CCCL contained in this Section 12.16 shall survive the termination of
this Agreement and the payment of all other amounts owing hereunder.
12.17 WAIVERS OF JURY TRIAL. THE FACILITY BORROWERS, THE ADMINISTRATIVE
AGENT, THE CANADIAN ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CHRYSLER FINANCIAL CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President and
Treasurer
CHRYSLER CREDIT CANADA LTD.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President and
Treasurer
THE CHASE MANHATTAN BANK,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
ROYAL BANK OF CANADA,
as Canadian Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
---------------------------
Title: Senior Manager