Exhibit 4.14
FOUR YEAR REVOLVING TERM CREDIT AGREEMENT
CELESTICA INC. AND CELESTICA INTERNATIONAL INC.,
AS BORROWERS
- AND -
THE BANK OF NOVA SCOTIA,
AS ADMINISTRATIVE AGENT
- AND -
THE FINANCIAL INSTITUTIONS NAMED IN SCHEDULE A,
AS LENDERS
U.S. $500,000,000
FOUR YEAR REVOLVING TERM CREDIT FACILITY
MADE AS OF JULY 31, 2001
OSLER, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
TABLE OF CONTENTS
ARTICLE 1 INTERPRETATION...................................................2
1.1 DEFINITIONS......................................................2
1.2 HEADINGS........................................................22
1.3 USE OF DEFINED TERMS............................................22
1.4 EXTENDED MEANINGS...............................................22
1.5 CROSS REFERENCES................................................22
1.6 REFERENCE TO AGENT OR LENDERS...................................22
1.7 ACCOUNTING TERMS................................................23
1.8 CONSOLIDATED FINANCIAL STATEMENTS AND CONSOLIDATED ACCOUNTS.....23
1.9 NON-BANKING DAYS................................................23
1.10 REFERENCES TO TIME OF DAY.......................................23
1.11 CURRENCY........................................................24
1.12 REFERENCES TO STATUTES..........................................24
1.13 REFERENCES TO AGREEMENTS........................................24
1.14 CONSENTS AND APPROVALS..........................................24
1.15 SCHEDULES.......................................................24
ARTICLE 2 THE FACILITY....................................................26
2.1 ESTABLISHMENT OF THE FACILITY...................................26
2.2 PURPOSE, NATURE AND TERM OF THE FACILITY........................26
2.3 TERM AND AVAILABILITY OF ADVANCES...............................26
2.4 LENDERS' OBLIGATIONS............................................27
2.5 REPAYMENT OF FACILITY...........................................27
2.6 PAYMENTS/CANCELLATION OR REDUCTION..............................28
2.7 EXTENSION OF MATURITY DATE......................................28
2.8 INTEREST ON BASE RATE CANADA ADVANCES...........................31
2.9 LIBOR ADVANCES..................................................32
2.10 METHOD AND PLACE OF PAYMENT.....................................33
2.11 FEES............................................................33
2.12 CONVERSION OPTIONS..............................................34
2.13 EXECUTION OF NOTICES............................................34
2.14 EVIDENCE OF INDEBTEDNESS........................................34
2.15 INTEREST ON UNPAID COSTS AND EXPENSES...........................34
2.16 CRIMINAL RATE OF INTEREST.......................................35
2.17 COMPLIANCE WITH THE INTEREST ACT (CANADA).......................35
2.18 NOMINAL RATE OF INTEREST........................................35
2.19 SWING LINE FACILITY.............................................35
2.20 INCREASE IN AGGREGATE COMMITMENT AMOUNT TO U.S.$750,000,000.....37
ARTICLE 3 CHANGE OF CIRCUMSTANCES AND INDEMNIFICATION.....................39
3.1 LENDER REPRESENTATION...........................................39
3.2 INCREASED COSTS.................................................39
3.3 ILLEGALITY......................................................40
3.4 MITIGATION......................................................40
3.5 TAXES...........................................................42
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3.6 TAX REFUND......................................................44
ARTICLE 4 CONDITIONS PRECEDENT TO DRAWDOWN................................44
4.1 CONDITIONS FOR FIRST DRAWDOWN...................................44
4.2 CONDITIONS FOR SUBSEQUENT DRAWDOWNS.............................46
ARTICLE 5 PROVISIONS RELATING TO SUBSIDIARIES.............................47
5.1 MATERIAL RESTRICTED SUBSIDIARIES TO PROVIDE GUARANTEES..........47
5.2 UNRESTRICTED SUBSIDIARIES.......................................47
ARTICLE 6 REPRESENTATIONS AND WARRANTIES..................................48
6.1 REPRESENTATIONS AND WARRANTIES..................................48
6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES......................52
6.3 DEEMED REPETITION OF REPRESENTATIONS AND WARRANTIES.............53
ARTICLE 7 COVENANTS.......................................................53
7.1 AFFIRMATIVE COVENANTS...........................................53
7.2 NEGATIVE COVENANTS..............................................58
7.3 FINANCIAL COVENANTS.............................................61
ARTICLE 8 DEFAULT AND ACCELERATION........................................61
8.1 EVENTS OF DEFAULT...............................................61
8.2 ACCELERATION....................................................64
8.3 REMEDIES CUMULATIVE AND WAIVERS.................................65
8.4 SUSPENSION OF LENDERS' OBLIGATIONS..............................65
8.5 APPLICATION OF PAYMENTS AFTER AN EVENT OF DEFAULT...............65
ARTICLE 9 THE ADMINISTRATIVE AGENT AND ADMINISTRATION OF THE FACILITY.....66
9.1 AUTHORIZATION OF ACTION.........................................66
9.2 PROCEDURE FOR MAKING ADVANCES...................................66
9.3 REMITTANCE OF PAYMENTS..........................................68
9.4 REDISTRIBUTION OF PAYMENT.......................................68
9.5 DUTIES AND OBLIGATIONS..........................................69
9.6 PROMPT NOTICE TO THE LENDERS....................................70
9.7 AGENT'S AUTHORITY...............................................70
9.8 LENDER'S INDEPENDENT CREDIT DECISION............................71
9.9 INDEMNIFICATION.................................................71
9.10 SUCCESSOR AGENT.................................................71
9.11 TAKING AND ENFORCEMENT OF REMEDIES..............................72
9.12 RELIANCE UPON LENDERS...........................................73
9.13 RELIANCE UPON AGENT.............................................73
9.14 REPLACEMENT OF CANCELLED COMMITMENTS............................74
9.15 DISCLOSURE OF INFORMATION.......................................74
9.16 ADJUSTMENTS OF RATEABLE PORTIONS................................76
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ARTICLE 10 COSTS, EXPENSES AND INDEMNIFICATION.............................76
10.1 COSTS AND EXPENSES..............................................76
10.2 INDEMNIFICATION BY THE BORROWERS................................77
10.3 FUNDS...........................................................77
10.4 GENERAL INDEMNITY...............................................77
10.5 ENVIRONMENTAL CLAIMS............................................79
ARTICLE 11 GENERAL.........................................................80
11.1 TERM............................................................80
11.2 SURVIVAL........................................................80
11.3 BENEFIT OF THE AGREEMENT........................................80
11.4 NOTICES.........................................................81
11.5 AMENDMENT AND WAIVER............................................81
11.6 GOVERNING LAW...................................................82
11.7 FURTHER ASSURANCES..............................................82
11.8 ENFORCEMENT AND WAIVER BY THE LENDERS...........................82
11.9 EXECUTION IN COUNTERPARTS.......................................83
11.10 ASSIGNMENT BY THE BORROWERS.....................................83
11.11 ASSIGNMENTS AND TRANSFERS BY A LENDER...........................83
11.12 CERTAIN REQUIREMENTS IN RESPECT OF MERGER, ETC..................85
11.13 LOCATION OF LENDERS.............................................87
11.14 SET-OFF.........................................................87
11.15 TIME OF THE ESSENCE.............................................87
11.16 ADVERTISEMENTS..................................................88
11.17 DESIGNATION.....................................................88
Schedules:
Schedule A - Lenders
Schedule B - Lenders' Commitments
Schedule C - Applicable Margin and Facility Fee
Schedule D - Quarterly Certificate on Covenants
Schedule E - Conversion Notice
Schedule F - Drawdown Notice and Notice of Swing Line Borrowing
Schedule G - Guarantees
Schedule H - Rollover Notice
Schedule I - Transfer Notice
Schedule J - Mandatory Cost Calculation
Schedule K - Opinions of Counsel
Schedule L - Extension Request
Schedule M - Permitted Encumbrance Certificate
FOUR YEAR REVOLVING TERM CREDIT AGREEMENT
MADE as of the 31st day of July, 2001.
B E T W E E N:
CELESTICA INC.,
a corporation incorporated under the laws of the
Province of Ontario,
OF THE FIRST PART,
- and -
CELESTICA INTERNATIONAL INC.,
a corporation incorporated under the laws of the
Province of Ontario,
OF THE SECOND PART,
- and -
THE BANK OF NOVA SCOTIA,
a Canadian chartered bank, as Administrative Agent
OF THE THIRD PART,
- and -
THE FINANCIAL INSTITUTIONS NAMED IN SCHEDULE A,
as Lenders,
OF THE FOURTH PART.
WHEREAS Celestica has requested the Lenders to provide, and
the Lenders have agreed to provide, a revolving term credit facility in an
initial aggregate maximum principal amount of U.S.$500,000,000 (which may be
increased up to $750,000,000) to Celestica and Celestica International upon and
subject to the terms and conditions hereinafter set forth;
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AND WHEREAS the Administrative Agent has agreed to act as
agent on behalf of the Lenders with regard to certain matters associated with
the Facility;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration
of the premises, the covenants herein contained and other valuable
consideration, the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACQUIRED INDEBTEDNESS" means Indebtedness of any Person (i) which is
outstanding at the time that such Person becomes a Restricted Subsidiary or is
amalgamated with, or merged with or into, a Borrower or a Restricted Subsidiary;
or (ii) which is outstanding at the time that assets of a Person are acquired by
a Borrower or a Restricted Subsidiary and the obligation for repayment of which
is assumed by such Borrower or Restricted Subsidiary in connection with the
acquisition of such assets;
"ACQUIRING LENDERS" has the meaning specified in Section 2.7(b)(iii);
"ACQUISITION DATE" has the meaning specified in Section 2.7(b)(iii);
"ADDITIONAL COMPENSATION" has the meaning specified in Section 3.2;
"ADMINISTRATIVE AGENT" means Scotiabank when acting in its capacity as
administrative agent hereunder;
"ADVANCE" means a LIBOR Advance, a Base Rate Canada Advance made by the Lenders
or a Lender, as applicable and "Advances" means all of them;
"AFFECTED LENDER" has the meaning specified in Section 3.4(b);
"AFFILIATE" means an affiliated body corporate and, for the purposes of this
Agreement, (i) one body corporate is affiliated with another body corporate if
one such body corporate is the Subsidiary of the other or both are Subsidiaries
of the same body corporate or each of them is controlled by the same Person and
(ii) if two bodies corporate are affiliated with the same body corporate at the
same time, they are deemed to be affiliated with each other; for greater
certainty for the purposes of this definition, "body corporate" shall include a
Canadian Chartered Bank;
"AGREEMENT" means this agreement and all Schedules attached hereto as the same
may be amended, restated, replaced or superseded from time to time;
"ALTERNATE LENDERS" has the meaning specified in Section 2.7(b)(iv);
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"APPLICABLE LAW" means, with respect to any Person, property, transaction or
event, all applicable laws, statutes, rules, regulations, codes, treaties,
conventions, judgements, orders, awards or determinations of courts, arbitrators
or mediators, and decrees in any applicable jurisdiction which are binding on
such Person, property, transaction or event;
"APPLICABLE MARGIN" shall have the meaning specified in Schedule C;
"APPROVED CREDIT RATING AGENCY" means any one of Standard & Poor's Ratings
Services (a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.) ("Standard & Poor's"),
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and any other similar agency agreed
to by Celestica and the Administrative Agent;
"APPROVING LENDERS" has the meaning specified in Section 2.7(b);
"ARM'S LENGTH" has the meaning ascribed thereto under the Income Tax Act
(Canada) in effect as of the date hereof;
"ASSENTING LENDER" has the meaning specified in Section 3.4(b);
"AVAILABLE SWING LINE COMMITMENT" means the monetary amount which is the
Commitment of the Swing Line Lender as may be increased or decreased from time
to time pursuant to Section 2.19(j);
"BANKING DAY" means a day, other than a Saturday or a Sunday and, where used in
the context of a notice, delivery, payment or other communication addressed to
the Administrative Agent, which is also a day on which banks are not required or
authorized to close in Toronto, Canada;
"BASE RATE CANADA" means, on any day on which such rate is determined, the
greater of (i) the variable rate of interest per annum, expressed on the basis
of a year of 365 or 366 days, as the case may be, established or quoted from
time to time by the Administrative Agent as the reference rate of interest then
in effect for determining interest rates on United States Dollar denominated
commercial loans made by it in Canada; and (ii) the Federal Funds Effective Rate
plus 1/2 of 1% per annum;
"BASE RATE CANADA ADVANCE" means a loan made by the Lenders to a Borrower on
which interest is payable based on the Base Rate Canada;
"BORROWERS' COUNSEL" means ▇▇▇▇▇▇ ▇▇▇▇ Philips & ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
or such other firm of legal counsel as the Borrowers may from time to time
designate;
"BORROWERS" means Celestica and Celestica International from time to time and
their respective permitted successors and assigns;
"BUSINESS" means the business of:
(i) conducting a broad range of electronics manufacturing services,
including the manufacturing, assembly and testing of printed
circuit boards, printed
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circuit board assembly, backplanes, electro-mechanical
sub-assembly, memory modules, photonics, opto-electronic
assembly, full system assembly, product testing, quality
assurance, failure analysis, and other related manufacturing
services;
(ii) a full range of supply chain management, services such as
materials procurement, inventory management, logistics,
packaging, distribution, after-market support and
refurbishment;
(iii) design services including concept and product design, product
documentation and data management, prototype services, product
qualification, design for manufacturability and new product
introduction;
(iv) the design, production, distribution and sale of power
products; and
(v) any incidental businesses conducted by businesses acquired by
a Borrower or a Restricted Subsidiary whose principal business
involves one or more of the businesses described in paragraphs
(a) through (d) of this definition;
"CANADIAN DOLLARS" and "CDN. $" mean the lawful currency of Canada in
immediately available funds;
"CAPITAL LEASE" means any leasing or similar arrangement which, in accordance
with GAAP, would be classified a capital lease;
"CAPITAL LEASE OBLIGATIONS" means all monetary obligations of Celestica or a
Subsidiary under a Capital Lease and for the purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP;
"CASH EQUIVALENTS" means:
(a) United States Dollars, Canadian Dollars or Freely Tradeable European
Currency;
(b) bonds, debentures or other evidences of indebtedness issued or
directly and fully guaranteed or insured by the United States or
Canadian Government, any agency or instrumentality thereof or, if such
bonds, debentures or other evidences of indebtedness are rated at
least A-1 or P-1 by an Approved Credit Rating Agency, of the
Government of any Province of Canada or any agency or instrumentality
thereof;
(c) any evidence of indebtedness, maturing not more than one year after
such time, issued or guaranteed by the United States or Canadian
Government or, if such evidence of indebtedness is rated at least A-1
or P-1 by an Approved Credit Rating Agency or R1(mid) by Dominion Bond
Rating Service Limited ("DBRS") by the Government of any Province of
Canada;
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(d) commercial paper, maturing not more than twelve months from the date
of issue, which is issued by,
(i) a corporation (other than an Obligor or any Affiliate of any
Obligor) organized under the laws of any state of the United
States, of the District of Columbia, of Canada or of any
Province of Canada and rated at least A-1 by Standard & Poor's
or P-1 by Moody's or any equivalent rating by another Approved
Credit Rating Agency or R1(mid) by DBRS; or
(ii) any Lender (or an Affiliate thereof);
(e) any certificate of deposit or bankers' acceptance, maturing not more
than one year after such time, which is issued by either,
(i) a commercial banking institution that is a member of the
Federal Reserve System and has a combined capital and surplus
and undivided profits of not less than U.S. $500,000,000 or a
bank that is listed on Schedule I to the Bank Act (Canada); or
(ii) any Lender;
(f) any repurchase agreement entered into with any Lender (or other
commercial banking institution of the stature referred to in clause
(v)(A) which ,
(i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (ii)
through (v); and
(ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase
obligation of such Lender (or other commercial banking
institution) thereunder;
(g) marketable debt securities issued in the United Kingdom by Her
Majesty's Government;
(h) amounts deposited overnight for cash management purposes with a
commercial banking institution, which banking institution does not
meet the debt rating criteria set out in paragraph (i) below, with
whom Celestica or a Restricted Subsidiary has a cash management
relationship, provided that such amounts, for the purposes of
inclusion of such amounts in the definition of "Net Funded Debt",
shall be limited to an aggregate amount of U.S. $30,000,000;
(i) amounts deposited overnight with a commercial banking institution
provided that such institution, or the guarantor of the obligations of
such institution with respect to such deposits, in each case, has a
short-term debt rating of A-1 granted by Standard & Poor's or P-1
granted by Moody's;
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(j) the face amount of certificates of deposit issued in London by an
authorized institution under the England Banking ▇▇▇ ▇▇▇▇ or a
Building Society authorized under the England Building Societies Act
1986 with a short term debt rating, in each case of A-1 granted by
Standard & Poor's or P-1 granted by Moody's; and
(k) Pound Sterling bills of exchange eligible for rediscount at the Bank
of England;
"CELESTICA" means Celestica Inc., a corporation duly incorporated, organized and
subsisting under the laws of the Province of Ontario, and any successor
corporation;
"CELESTICA CORP." means Celestica Corporation, a corporation duly incorporated,
organized and subsisting under the laws of the State of Delaware, and any
successor corporation;
"CELESTICA INTERNATIONAL" means Celestica International Inc., a corporation duly
incorporated, organized and subsisting under the laws of the Province of
Ontario, and any successor corporation;
"CERCLA" means the United States Comprehensive Environmental Response,
Compensation and Liability Act of 1980;
"CERCLIS" means the United States Comprehensive Environmental Response
Compensation Liability Information System List;
"CLAIMS" has the meaning specified in Section 10.4(a);
"CLOSING DATE" means July 31, 2001;
"CODE" means the United States Internal Revenue Code of 1986;
"COMMENCEMENT DATE" means January 1, 1999;
"COMMITMENT" means the commitment of each Lender to loan a portion of the
aggregate amount of the Facility, in the amount set opposite its name in
Schedule B, as such Schedule B may be amended pursuant to (a) Section 2.20 or
(b) under a Transfer Notice pursuant to Section 11.11;
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by which
any Person guarantees, endorses or otherwise becomes or is contingently liable
for the Indebtedness for borrowed monies of any other Person;
"CONTROL" means, with respect to control of a body corporate by a Person, the
holding (other than by way of security only) by or for the benefit of that
Person, or Affiliates of that Person of securities of such body corporate or the
right to vote or direct the voting of securities of such body corporate to
which, in the aggregate, are attached more than 50% of the votes that may be
cast to elect directors of the body corporate, provided that the votes attached
to those securities are sufficient, if exercised, to elect a majority of the
directors of the body corporate;
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"CONTROLLED GROUP" means all members of a controlled group of corporations and
all members of a controlled group of trades or business (whether or not
incorporated) under common control which, together with the Borrowers, are
treated as a single employer under Section 414(b) or Section 414(c) of the Code;
"CONVERSION" means the conversion of one type of Advance into another type of
Advance pursuant to Section 2.12;
"CONVERSION NOTICE" means a notice substantially in the form set out in
Schedule E;
"CORPORATE REORGANIZATION" has the meaning specified in Section 11.12;
"DEFAULT" means an event which, with the giving of notice or the passage of time
or the making of any determination or any combination thereof as provided for
herein, would constitute an Event of Default;
"DESIGNATED ACCOUNT" means an account of a Borrower of which the Administrative
Agent is notified by such Borrower from time to time for the purposes of
transactions under this Agreement;
"DISSENTING LENDERS" has the meaning specified in Section 2.7(b);
"DRAWDOWN" means a drawdown of an Advance;
"DRAWDOWN DATE" means, in relation to any Advance, the date, which shall be a
Banking Day, on which the Drawdown of such Advance is made by a Borrower
pursuant to a Drawdown Notice;
"DRAWDOWN NOTICE" means a notice substantially in the form set out in Exhibit 1
to Schedule F;
"EBITDA" means, for any particular period, the aggregate of:
(a) Net Income for such period;
(b) all amounts deducted in the calculation of Net Income in respect
of Taxes, whether paid or deferred (in accordance with GAAP);
(c) all amounts deducted in the calculation of Net Income in respect of
depreciation;
(d) all amounts deducted in the calculation of Net Income in respect
of amortization;
(e) all amounts deducted in the calculation of Net Income in respect of
Interest Expense;
(f) all amounts deducted in the calculation of Net Income in connection
with the implicit financing costs of synthetic leases and Permitted
Securitization Transactions;
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(g) all amounts deducted in the calculation of Net Income in determining
all non-recurring charges; and
(h) non-cash charges and purchase accounting deductions,
provided that, in the event of the acquisition by Celestica or a Restricted
Subsidiary of (i) a corporation which becomes a new Restricted Subsidiary or
(ii) any other entity or a group of assets or an operation, provided that such
operation comprises a going concern which becomes a division or part of the
business of Celestica or a Restricted Subsidiary (an "operation"), EBITDA will,
subject to (x) and (y), include the EBITDA for the newly acquired Restricted
Subsidiary or operation for its immediately preceding four fiscal quarters
completed prior to such acquisition.
(i) If such newly acquired Restricted Subsidiary or operation was,
immediately prior to such acquisition, accounted for on a stand-alone
basis, EBITDA for such newly acquired Restricted Subsidiary or
operation shall only be included in the above calculation if EBITDA
for such newly acquired Restricted Subsidiary or operation, as the
case may be, can be determined by reference to historical financial
statements satisfactory to the Administrative Agent; and
(j) If such newly acquired Restricted Subsidiary or operation:
(i) was not, immediately prior to such acquisition, accounted for
on a stand-alone basis; or
(ii) was immediately prior to such acquisition, accounted for on a
stand-alone basis but, in the determination of the
Administrative Agent acting reasonably, the business of such
newly acquired Restricted Subsidiary or operation will not be
conducted by Celestica or its Restricted Subsidiary, as the
case may be, in substantially the same form or the same manner
as conducted by the vendor immediately prior to such
acquisition,
then subject to the satisfaction of the Administrative Agent and the Majority
Lenders with the method of determination thereof acting reasonably, EBITDA for
such newly acquired Restricted Subsidiary or operation will be determined having
regard to historical financial results together with, and having regard to,
contractual arrangements and any other changes made or proposed to be made by
Celestica or its Restricted Subsidiary, as the case may be, to the business of
such newly acquired Restricted Subsidiary or operation;
"ENVIRONMENTAL LAWS" means applicable federal, provincial, state, municipal or
other local law, statute, regulation or by-law, code, ordinance, decree,
directive, standard, policy, guideline, rule, order, treaty, convention,
judgment, award or determination for the protection of the environment or human
health or relating to the manufacture, processing, distribution, use, treatment,
storage, Release, transport or handling of Hazardous Materials;
"ERISA" means the United States Employee Retirement Income Security Act of 1974;
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"EURO" means the single currency of the European Union introduced on the
Commencement Date;
"EVENT OF DEFAULT" means any of the events described in Section 8.1;
"EXEMPTED JURISDICTION" has the meaning specified in Section 11.12;
"EXTENSION REQUEST" means a request made in writing by Celestica to the
Administrative Agent substantially in the form set out in Schedule L;
"FACILITY" means the four year revolving term credit facility in an initial
aggregate principal amount of U.S.$500,000,000 to be made available to the
Borrowers as set forth in Article 2 as same may be increased and/or extended
subject to the terms set forth herein;
"FACILITY FEE" has the meaning specified in Section 2.11(a) and calculated in
accordance with Schedule C;
"FEDERAL FUNDS EFFECTIVE RATE" means, for any particular day, the variable rate
of interest per annum, calculated on the basis of a 360-day year as determined
by the Administrative Agent for the actual number of days elapsed, equal to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers as published for such day (or, if such day is
not a Banking Day, for the next preceding Banking Day) by the Federal
Reserve Bank of New York, or
(b) for any Banking Day on which such rate is not so published by the
Federal Reserve Bank of New York, the average of the quotations for
such day for such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by
the Administrative Agent in consultation with Celestica;
"FINAL MATURITY DATE" means the day which is one year from the Maturity Date;
"FREELY TRADEABLE EUROPEAN CURRENCY" means Pounds Sterling and, so long as it
trades on a LIBOR equivalent basis and is freely convertible to Canadian Dollars
and to United States Dollars, the Euro;
"GAAP" has the meaning specified in Section 1.7;
"GLOBAL RATEABLE PORTION" means, with respect to any Lender, at any time, the
ratio, expressed as a decimal fraction, of:
(a) such Lender's Commitment at such time to
(b) the aggregate of the Commitments of all of the Lenders at such time;
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"GUARANTEES" means the guarantees of each of the Guarantors substantially in the
form set forth in Schedule G;
"GUARANTOR" means each Person which, on the date of this Agreement, is or, after
the date of this Agreement, becomes a Material Restricted Subsidiary and
"Guarantors" means two or more of them;
"HAZARDOUS MATERIAL" has the meaning specified in Section 10.5(a);
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of such
Person under interest rate swap agreements, interest rate cap agreements,
interest rate collar agreements and all such other agreements or arrangements
designed to protect such Person against fluctuations in interest rates;
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(b) all obligations, contingent or otherwise, relative to the face amount
of all letters of credit, whether drawn or undrawn, and bankers'
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with GAAP, recorded as Capital Leases,
including liabilities in respect of Capital Leases incurred by such
Person in connection with sale/leaseback transactions;
(d) net liabilities of such Person under all Hedging Obligations or net
liabilities of such Person under currency, swap, forward or other
foreign exchange hedging agreements;
(e) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon), secured by a lien on the property owned or being purchased
by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse;
(f) all Contingent Liabilities of such Person; and
(g) any Acquired Indebtedness.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer;
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"INDEMNIFIED PERSON" has the meaning specified in Section 3.5(b);
"INDEMNIFYING PARTY" has the meaning specified in Section 10.4(c);
"INDEMNITEE" has the meaning specified in Section 10.4(a);
"INTEREST EXPENSE" means, for any period, the aggregate consolidated interest
expense of Celestica on a consolidated basis as determined in accordance with
GAAP including the portions of any payment made in respect of Capital Leases
allocable to interest expenses but excluding deferred financing costs and other
non-cash interest expense;
"INTEREST PAYMENT DATE" shall have the meaning set out in Section 2.8;
"INTEREST PERIOD" means relative to any LIBOR Advance, the period commencing on
(and including) the date on which such LIBOR Advance is made or continued as, or
converted into, a LIBOR Advance, and ending on (but excluding) the day which
numerically corresponds to such date one, two, three or six months thereafter
(or, if such month has no numerically corresponding date, on the last Banking
Day of such month) as the Borrower may select; provided, however, that:
(a) if such Interest Period would otherwise end on a day which is not a
Banking Day, such Interest Period shall end on the next following
Banking Day (unless, if such Interest Period applies to LIBOR
Advances, and such next following Banking Day is the first Banking Day
of a calendar month, in which case such Interest Period shall end on
the Banking Day next preceding such numerically corresponding day);
(b) the Borrowers shall not be permitted to select, collectively or in the
aggregate, Interest Periods to be in effect at any one time which have
expiration dates occurring on more than ten different dates, unless
otherwise previously consented to in writing by the Administrative
Agent; and
(c) no Interest Period may end later than the Maturity Date;
"LENDERS" means, collectively, the financial institutions set out in Schedule A
and "Lender" shall mean any such financial institution;
"LENDERS" Counsel" means the firm of Osler, ▇▇▇▇▇▇ & Harcourt LLP, Toronto,
Ontario, or such other firm of legal counsel as the Administrative Agent may
from time to time designate;
"LIBO RATE" means, relative to any LIBOR Advance:
(a) the rate of interest per annum of the offered quotations for deposits
in the currency of the relevant Advance for a period equal or
comparable to the Interest Period in an amount comparable to the
Advance as such rate is reported on the display designated as "page
3750" or "page 3740", as applicable (or any replacement pages) by
"Telerate - The Financial Information Network" published
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by Telerate Systems, Inc. (or such other company or service as may be
nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for deposits in the currency in which the
LIBOR Advance is requested) at or about 10:00 a.m. (London, England
time) on the applicable Rate Fixing Day; or
(b) if a rate cannot be determined under paragraph (a) above, the rate
determined by the Administrative Agent to be the arithmetic average
(rounded up if necessary, to the nearest 1/16 of 1%) of such rates as
reported on the display page designated as the page (or any
replacement page) for the offering of deposits in the currency in
which the LIBOR Advance is requested (for example, the LIBO page in
the case of United States Dollars) by Reuters Money Market Service (or
its successor) for a period equal to or comparable to the Interest
Period and in an amount comparable to the Advance at or about 10:00
a.m. (London, England time) on the applicable Rate Fixing Day provided
that at least two such rates are reported on such page; or
(c) if a rate cannot be determined under either of paragraphs (a) and (b)
above, the rate determined by the Administrative Agent for a
particular Interest Period to be the arithmetic average of the rates
per annum at which deposits in the currency in which the LIBOR Advance
is requested in immediately available funds are offered to the LIBOR
Offices in the London interbank market for a period equal to or
comparable to the Interest Period and an amount comparable to the
Advance at or about 10:00 a.m. (London, England time) on the
applicable Rate Fixing Day.
For the purposes of this definition, "Rate Fixing Day" means in respect of each
Interest Period, the second Banking Day before the first day of such Interest
Period.
"LIBOR ADVANCE" means a loan made by the Lenders to a Borrower on which interest
is payable at the LIBO Rate plus the Applicable Margin;
"LIBOR OFFICE" means, relative to any Lender, the office of such Lender
designated as such below its signature hereto, or designated in the Transfer
Notice by which a financial institution becomes a Lender pursuant to Section
11.11, or such other office of a Lender (or any successor, assign or Affiliate
of such Lender) as designated from time to time by notice from such Lender to
Celestica and the Administrative Agent, whether or not outside Canada, which may
be making or maintaining the LIBOR Advances of such Lender;
"LIENS" means any security interest, mortgage, pledge, hypothec, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise) or
charge against or interest in property to secure payment of a debt or
performance of an obligation (including the interest of a vendor or lessor under
any conditional sale agreement, or of a lessor under any lease including a
Capital Lease or other title retention agreement);
"LOAN DOCUMENTS" means this Agreement, the Guarantees provided for herein and
all other agreements, documents or instruments to be executed and delivered to
the Administrative Agent,
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the Lenders or any of them by the Borrowers, the Guarantors or any of them
hereunder or thereunder or pursuant hereto or thereto;
"LOSSES" has the meaning specified in Section 10.4(a);
"MAIN FACILITY COMMITMENT" means, at any time, the amount, if any, by which the
Commitment of the Swing Line Lender exceeds the Available Swing Line Commitment
at that time;
"MAIN FACILITY RATEABLE PORTION" means, with respect to any Lender, at any time,
subject to adjustment by the Administrative Agent in accordance with Section
9.16 of this Agreement and also subject to Section 2.3 of this Agreement, the
ratio, expressed as a decimal fraction, of:
(a) such Lender's Commitment at such time (or, if such Lender is
Scotiabank, or an affiliate thereof, the Main Facility Commitment) to
(b) the aggregate of the Commitments of all of the Lenders (other than
Scotiabank and its affiliates) at such time and the Main Facility
Commitment at such time;
"MAJORITY LENDERS" means the Lenders, the Commitments of which are in the
aggregate more than 51% of the aggregate amount of Commitments;
"MANDATORY COST" means, in relation to a LIBOR Advance, an amount determined in
accordance with Schedule J;
"MATERIAL ADVERSE CHANGE" means any change of circumstances or any event which
would reasonably be likely to have a Material Adverse Effect;
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the business,
assets, operations, prospects or condition, financial or otherwise, of Celestica
and of the Restricted Subsidiaries taken as a whole, or (b) the ability of any
Borrower to perform any of its Obligations, or (c) the rights of the
Administrative Agent and the Lenders against the Obligors on a consolidated
basis pursuant to the Loan Documents;
"MATERIAL RESTRICTED SUBSIDIARY" means any Restricted Subsidiary of Celestica
whose assets total greater than U.S. $150,000,000 on an unconsolidated basis on
the date referenced in the most recently delivered set of financial statements
delivered pursuant to Section 7.1(a)(ii); provided, however, that the
unconsolidated assets of all Restricted Subsidiaries which are not Material
Restricted Subsidiaries shall not exceed on the date referenced in such
financial statements, in the aggregate, ten per cent (10%) of the consolidated
assets of the Borrowers and the Restricted Subsidiaries on such date, and in the
event that the unconsolidated assets of all Restricted Subsidiaries which are
not Material Restricted Subsidiaries exceeds, on the date referenced in such
financial statements, in the aggregate, ten percent (10%) of the consolidated
assets of the Borrowers and Restricted Subsidiaries, Celestica shall set out in
a Schedule to the Officer's Certificate to be delivered in accordance with
Section 7.1(a)(iii) the Restricted Subsidiaries which it wishes to designate as
Material Restricted Subsidiaries such that
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unconsolidated assets of all of the Restricted Subsidiaries which are not
Material Restricted Subsidiaries shall not exceed ten percent (10%) of the
consolidated assets of the Borrowers and Restricted Subsidiaries on such date;
"MATURITY DATE" means July 30, 2005 or, if the Maturity Date has been extended
pursuant to the provisions of Section 2.7, the Final Maturity Date;
"NET FUNDED DEBT" of Celestica, on a consolidated basis, means, at any
particular time and without duplication the amount, by which the aggregate of:
(a) on a consolidated basis, determined in accordance with GAAP:
(i) the outstanding monetary Obligations at such time;
(ii) the Capital Lease Obligations outstanding at such time;
(iii) any other Indebtedness for borrowed money (including, without
limitation and without duplication, all Indebtedness in
respect of bankers' acceptances and letters of credit)
outstanding at such time but excluding (A) Permitted
Subordinated Indebtedness, and (B) any Indebtedness which, in
accordance with GAAP adopted as at the date of incurring such
Indebtedness, qualified as equity, so long as the terms
governing such Indebtedness are not amended after the date of
incurring the Indebtedness in a manner that would have
resulted in such Indebtedness not qualifying as equity in
accordance with GAAP as adopted as at the date of incurring
such Indebtedness;
(iv) the net marked-to-market value (positive or negative) of any
Hedging Obligations; and
(v) any Acquired Indebtedness outstanding at such time;
plus
(b) Contingent Liabilities of Celestica or any Restricted Subsidiary in
existence at such time;
exceeds the aggregate of
(c) cash and Cash Equivalents on a consolidated basis;
"NET INCOME" means, for any particular period, net income of Celestica for such
period determined on a consolidated basis in accordance with GAAP;
"NOTICE OF AMOUNT" has the meaning specified in Section 3.2;
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"NOTICE OF SWING LINE BORROWING" means a notice substantially in the form set
out in Exhibit 2 to Schedule F;
"NOTIFICATION DATE" has the meaning specified in Section 10.5(c);
"OBLIGATIONS" means all obligations (monetary and otherwise) of the Borrowers
arising under or in connection with this Agreement and each other Loan Document;
"OBLIGORS" means, collectively, the Borrowers and the Guarantors and "Obligor"
means any one of them;
"OFFICER'S CERTIFICATE" means a certificate signed by any one of the Chairman of
the Board, the President, the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer, any Senior Vice-President, any
Vice-President, the Treasurer, the Controller, the Assistant Treasurer, the
Secretary or the Assistant Secretary of Celestica;
"OFFICIAL BODY" means any national, federal or provincial government or any
government of any political subdivision thereof, or any agency, authority,
board, central bank, monetary authority, commission, department or
instrumentality thereof, or any court, tribunal, grand jury, mediator or
arbitrator, whether foreign or domestic, or any non-governmental regulatory
authority to the extent that the rules, regulations and orders of such body have
the force of law;
"ORGANIC DOCUMENT" means, relative to any body corporate, its articles of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its Shares;
"OTHER TAXES" means any present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, any of the Loan Documents, or any other document in
connection herewith;
"OUTSTANDING AMOUNT" has the meaning specified in Section 2.3(c);
"PBGC" means the Pension Benefit Guaranty Corporation and any entity succeeding
to any or all of its functions under ERISA;
"PENSION PLAN" means:
(a) any plan, program, agreement or arrangement that is a pension plan for
the purposes of any federal or provincial pension benefit law or under
the Income Tax Act (Canada) (whether or not registered under such law)
which is maintained or contributed to, or to which there is or may be
an obligation to contribute by any of the Borrowers in respect of its
employees in Canada; and
(b) a "pension plan", as such term is defined in Section 3(2) of ERISA,
which is subject to Title IV of ERISA (other than a multi-employer
plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrowers or any of the
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Subsidiaries or any corporation, trade or business that is, along with
the Borrowers, a member of a Controlled Group, may have liability;
"PERMITTED ENCUMBRANCES" means any one or more of the following with respect to
the assets of Celestica or any Restricted Subsidiary:
(a) inchoate or statutory Liens for Taxes, assessments and other
governmental charges or levies which are not delinquent (taking into
account any relevant grace periods) or the validity of which are
currently being contested in good faith by appropriate proceedings and
in respect of which there shall have been set aside a provision or
reserve (to the extent required by GAAP) in an amount which is
adequate therefor;
(b) inchoate or statutory Liens of contractors, sub-contractors,
mechanics, workers, suppliers, materialmen, carriers and others in
respect of construction, maintenance, repair or operation of assets of
Celestica or the relevant Restricted Subsidiary, or otherwise arising
in the ordinary course provided that such Liens are related to
obligations not due or delinquent (taking into account any applicable
grace or cure periods), are not registered as encumbrances against
title to any of the assets of Celestica or the relevant Restricted
Subsidiary and adequate holdbacks are being maintained as required by
applicable legislation or such Liens are being contested in good faith
by appropriate proceedings and in respect of which there shall have
been set aside a provision or reserve (to the extent required by GAAP)
in an amount which is adequate with respect thereto and provided
further that such Liens do not, in the aggregate, materially detract
from the value of the assets of Celestica or any Material Restricted
Subsidiary encumbered thereby or materially interfere with the use
thereof in the operation of the business of Celestica or any Material
Restricted Subsidiary;
(c) easements, rights-of-way, servitudes, restrictions and similar rights
in real property comprised in the assets of Celestica or the relevant
Restricted Subsidiary or interests therein granted or reserved to
other persons, provided that such rights do not, in the aggregate,
materially detract from the value of the assets of Celestica or any
Material Restricted Subsidiary or materially interfere with the use
thereof in the operation of the business of Celestica or any Material
Restricted Subsidiary;
(d) title defects or irregularities which are of a minor nature and which
do not, in the aggregate, materially detract from the value of the
assets of Celestica or any Material Restricted Subsidiary or
materially interfere with the use thereof in the operation of the
business of Celestica or any Material Restricted Subsidiary;
(e) Liens incidental to the conduct of the business or the ownership of
the assets of Celestica or the relevant Restricted Subsidiary (other
than those described in Clauses (f) and (g) of this definition) which
were not incurred in connection with the borrowing of money or the
obtaining of advances of credit (including, without
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limitation, unpaid purchase price), and which do not, in the
aggregate, materially detract from the value of the assets of
Celestica or any Material Restricted Subsidiary or materially
interfere with the use thereof in the operation of the business of
Celestica or any Material Restricted Subsidiary;
(f) Liens securing appeal bonds or other similar Liens arising in
connection with court proceedings (including, without limitation,
surety bonds, security for costs of litigation where required by law
and letters of credit) or any other instrument serving a similar
purpose;
(g) attachments, judgments and other similar Liens arising in connection
with court proceedings; provided, however, that such Liens are in
existence for less than 30 days after the entry thereof or the
execution or other enforcement of such Liens is effectively stayed and
the claims secured thereby are being actively contested in good faith
and by appropriate proceedings;
(h) Liens given to a public utility or any municipality or governmental or
other public authority when required by such utility or other
authority in connection with the operation of the business or the
ownership of the assets of Celestica or the relevant Restricted
Subsidiary, provided that such Liens do not have a Material Adverse
Effect;
(i) Purchase Money Obligations arising in the ordinary course of business,
provided that such Lien is limited to the property so acquired and is
created, issued or assumed substantially concurrently with the
acquisition of such property;
(j) the right reserved to or vested in any Official Body by any statutory
provision or by the terms of any lease, licence, franchise, grant or
permit of any of Celestica or the relevant Restricted Subsidiary, to
terminate any such lease, licence, franchise, grant or permit, or to
require annual or other payments as a condition to the continuance
thereof;
(k) the interests of lessors (including without limitation, security
interests granted in favour of lessors) pursuant to all leases,
including Capital Leases and synthetic leases, under which Celestica
or the relevant Restricted Subsidiary is the lessee;
(l) the extension, renewal or refinancing of any Permitted Encumbrance,
provided that the amount so secured does not exceed the original
amount secured immediately prior to such extension, renewal or
refinancing;
(m) Liens granted over the assets securitized in connection with any
Permitted Securitization Transaction;
(n) Liens granted by Celestica Corp. pursuant to and in accordance with
the Synthetic Lease provided that neither Celestica nor any other
Subsidiary other than
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Celestica, Celestica Corp. or Celestica International has any
liability in respect of such indebtedness;
(o) Liens granted by Celestica and/or any Restricted Subsidiary pursuant
to future subsidized financing by development entities on terms and
conditions satisfactory to the Administrative Agent and the Majority
Lenders;
(p) Liens granted to secure Acquired Indebtedness, to the extent that (i)
such Liens exist at the time such person or the assets subject to such
Lien are acquired by Celestica or a Restricted Subsidiary; (ii) such
Liens were not created in contemplation of the transaction by which
the subject Indebtedness became Acquired Indebtedness; and (iii) such
Liens either (A) only extend to the assets acquired or the assets of
the Person acquired, as applicable, in the transaction pursuant to
which the Acquired Indebtedness became an obligation of a Borrower or
a Restricted Subsidiary or (B) are discharged within 60 days of such
acquisition;
(q) Liens granted in respect of Shares of Unrestricted Subsidiaries;
(r) Liens of the nature contemplated in (b), (c), (d) or (e) above, but
exceeding the materiality thresholds specified therein, securing
indebtedness in the aggregate not greater than U.S. $50,000,000; and
(s) the Lien perfected by the registration in the Ontario Personal
Property Registration System of Financing Statement Reference File No.
078426459, Registration No. 961017 1441 0043 8892 registered on
October 17, 1996 for a period of 5 years, naming as Business Debtor
Celestica, Inc. at its address located at ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇/▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ by 1201541 Ontario Inc. as Secured Party,
naming as the secured party's address ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇, ▇▇▇▇▇▇ Trust Tower Toronto, Ontario M5J 2S1 and checking the
collateral classifications accounts and other, which financing
statement was amended on October 23, 1996 by Registration No. 961023
1124 0043 9764 to indicate change of name of the Secured Party to
Celestica International Inc. pursuant to articles of amendment dated
October 22, 1996. This registration shall perfect only security
interests granted in connection with a Loan Agreement made as of
November 4, 1996, as amended, between Celestica, Inc. (a predecessor
to Celestica International Inc.) and 1201541 Ontario Inc. (a
predecessor to Celestica International Inc.), pursuant to which
Celestica, Inc. borrowed an aggregate principal amount of U.S.
$200,000,000 from 1201541 Ontario Inc.;
"PERMITTED ENCUMBRANCE CERTIFICATE" means a certificate in the form of Schedule
M;
"PERMITTED SECURITIZATION TRANSACTION" means any transaction providing for the
sale, securitization or other asset-backed financing of (i) trade accounts
receivable of or owing to Celestica or any Restricted Subsidiary not exceeding
30% of the book value thereof in any fiscal
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year, (ii) inventory of Celestica or any Restricted Subsidiary not exceeding
30% of the book value thereof in any fiscal year, or (iii) contractual
rights related to (i) or (ii) provided that the terms and conditions of the
subject transaction shall be on an Arm's Length basis and on commercially
reasonable and usual terms;
"PERMITTED SUBORDINATED INDEBTEDNESS" means all unsecured Indebtedness of
Celestica, which, in respect of principal, is subordinated in right of payment
to the payment in full in cash of all monetary Obligations and, in respect of
interest, is only so subordinated upon the occurrence and during the continuance
of a Default, in each case, on terms satisfactory to the Administrative Agent
and the Majority Lenders, the terms of which permit Celestica at Celestica's
sole option in all circumstances to satisfy such indebtedness by the issue of
Shares or other securities convertible in all circumstances at the sole option
of Celestica into Shares of Celestica;
"PERSON" means an individual, company, partnership (whether or not having
separate legal personality), corporation (including a business trust and a
Canadian chartered bank), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government, state or political
subdivision thereof or any agency of such government, state or political
subdivision;
"POUNDS STERLING" and "L" means the lawful currency of the United Kingdom;
"PREDECESSOR CORPORATION" has the meaning described thereto in Section 11.12;
"PREDECESSOR GUARANTEE" has the meaning described thereto in Section 11.12;
"PROPERTY" has the meaning ascribed thereto in Section 10.5(a);
"PURCHASE MONEY OBLIGATIONS" means any Lien created, issued or assumed by
Celestica or any Subsidiary to secure indebtedness assumed as part of, or issued
or incurred to pay or provide funds to pay, all or a part of the purchase price
of any property (other than the shares, stock or other securities of any
Subsidiary or of any corporation which becomes a Subsidiary upon such purchase,
except for an Unrestricted Subsidiary);
"RELEASE" has the meaning specified in Section 6.1(h)(i);
"RESTRICTED SUBSIDIARY" means each and every Subsidiary of Celestica which is
not at the time an Unrestricted Subsidiary. For greater certainty, a Subsidiary
of an Unrestricted Subsidiary shall not be a Restricted Subsidiary;
"ROLLOVER" means a rollover of a LIBOR Advance pursuant to and in accordance
with Section 2.9;
"ROLLOVER NOTICE" means a notice substantially in the form of Schedule H;
"SCOTIABANK" means The Bank of Nova Scotia, a Canadian chartered bank;
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"SENIOR UNSECURED CREDIT AGREEMENT" means the Amended and Restated Credit
Agreement dated as of June 8, 2001 among Celestica and the Subsidiaries of
Celestica designated therein, as borrowers, Scotiabank as Administrative Agent,
Canadian Facility Agent, U.S. Facility Agent and U.K. Facility Agent and
Scotiabank and the Financial Institutions named therein as lenders as same may
be amended, restated, supplemented, extended or replaced from time to time;
"SHARES", as applied to the shares of any corporation or other entity, means the
shares or other ownership interests of every class whether now or hereafter
authorized, regardless of whether such shares or other ownership interests shall
be limited to a fixed sum or percentage with respect to the rights of the
holders thereof to participate in dividends and in the distribution of assets
upon the voluntary or involuntary liquidation, dissolution or winding-up of such
corporation or other entity;
"SPECIAL PURPOSE SUBSIDIARY" means any Subsidiary of Celestica which (a) is
formed for the purpose of effecting any Permitted Securitization Transaction and
engaging in other activities reasonably related thereto, and, where applicable,
(b) is structured as a "bankruptcy-remote subsidiary" in accordance with
customary practices in the asset-backed securitization market;
"SUBSIDIARY" means, with respect to any Person, any corporation, company or
other similar business entity (including, for greater certainty, a Canadian
chartered bank) of which more than fifty per cent (50%) of the outstanding
Shares or other equity interests (in the case of Persons other than
corporations) having ordinary voting power to elect a majority of the board of
directors or the equivalent thereof of such corporation, company or similar
business entity (irrespective of whether at the time Shares of any other class
or classes of the Shares of such corporation, company or similar business entity
shall or might have voting power upon the occurrence of any contingency) is at
the time directly or indirectly owned by such Person, by such Person and one or
more other Subsidiaries of such Person, or by one or more other Subsidiaries of
such Person;
"SUBSTITUTE LENDERS" has the meaning specified in Section 9.14;
"SUCCESSOR AGENT" has the meaning specified in Section 9.10;
"SUCCESSOR CORPORATION" has the meaning specified in Section 11.12(a);
"SWING LINE ADVANCE" means an Advance made pursuant to the provisions of
Section 2.19(a);
"SWING LINE LENDER" means Scotiabank or such other Lender as may have agreed to
act as a Swing Line Lender and to which Scotiabank and Celestica may have agreed
to acting as a Swing Line Lender from time to time;
"SYNTHETIC LEASE" means the Master Lease and Open-end Mortgage dated as of
February 12, 1998 made between Celestica Corp. (under its former name, Celestica
Colorado, Inc.) and BMO Leasing (U.S.) Inc., as same may be amended, restated,
supplemented, extended or replaced from time to time, including, without
limitation, the amendment dated December 31, 1998 pursuant to
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which Celestica Corp. (under its former name Celestica (USA), Inc.) assumed the
liabilities of Celestica Colorado, Inc. under such Master Lease and Open-end
Mortgage;
"TAKE-OVER BID" means an offer to acquire made by Celestica or any Restricted
Subsidiary, alone or acting jointly or in concert with any other Person or
Persons (collectively, the "offeror") to any holder of Shares or securities
convertible, exchangeable or exercisable into Shares (the "Target Shares") of
the offeree issuer, which has not been solicited by or made at the request of
the board of directors of the offeree issuer or with respect to which the board
of directors of the offeree issuer has not recommended acceptance, where the
Target Shares subject to the offer to acquire, together with the Target Shares
held by or on behalf of the offeror on the date of the offer, constitute, in
aggregate, 20% (or such lesser percentage as would require compliance with the
formal requirements governing take-over bids (such as the delivery of circulars
or equivalent disclosure documents to shareholders under Applicable Law)) or
more of the outstanding Target Shares at the date of the offer to acquire, but
excluding any such offer which, under the Applicable Law of the jurisdiction in
which such offer is made, would be exempt from such formal requirements;
"TAKE-OVER BID NOTICE" has the meaning specified in Section 2.3;
"TANGIBLE NET WORTH" of Celestica, on a consolidated basis, means, at any
particular time, without duplication, the sum, determined in accordance with
GAAP, of:
(a) capital stock;
(b) preferred stock;
(c) paid-in capital;
(d) retained earnings; and
(e) cumulative translation adjustment (whether positive or negative);
minus the sum of any amounts shown on account of any:
(f) patents, patent applications, service marks, industrial designs,
copyright and trade marks;
(g) goodwill and other intangibles; and
(h) any equity in, loan to or other investment or interest in an
Unrestricted Subsidiary whatsoever;
"TAXES" includes all present and future income, corporation, capital gains,
capital and value-added and goods and services taxes and all stamp, franchise
and other taxes and levies, imposts, deductions, duties, charges and
withholdings whatsoever together with interest thereon and penalties with
respect thereto, if any, and charges, fees and other amounts made on or in
respect thereof;
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"TORONTO OFFICE" means the office of the Administrative Agent located at ▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile:
416-866-5991) or such other address as the Administrative Agent may designate by
notice to Celestica;
"TRANSFER NOTICE" means a notice substantially in the form of Schedule I;
"TRUST INDENTURE" has the meaning specified in Section 11.17;
"UNITED STATES DOLLARS" and "U.S. $" means the lawful currency of the United
States of America in immediately available funds; and
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of Celestica designated by
Celestica as such in accordance with Section 5.2 of this Agreement and any
Subsidiary of an Unrestricted Subsidiary.
1.2 HEADINGS
The division of this Agreement into Articles and Sections and the insertion of
an index and headings are for convenience of reference only and shall not affect
the construction or interpretation hereof. The terms "this Agreement", "hereof",
"hereunder" and similar expressions refer to this Agreement and not to any
particular Article, Section, paragraph or other portion hereof and include any
agreement supplemental hereto. Save as expressly provided herein, references
herein to Articles and Sections are to Articles and Sections of this Agreement.
1.3 USE OF DEFINED TERMS
Unless otherwise defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings when used in
each Drawdown Notice, Conversion Notice, Rollover Notice, Loan Document, notice
and other communication delivered from time to time in connection with this
Agreement or any other Loan Document.
1.4 EXTENDED MEANINGS
Words importing the singular number only shall include the plural and vice
versa, and words importing any gender shall include all genders.
1.5 CROSS REFERENCES
Unless otherwise specified, references in this Agreement and in each other Loan
Document to any Article or Section are references to such Article or Section of
this Agreement or such other Loan Document, as the case may be, and unless
otherwise specified referenced in the Article, Section or definition to any
Clause are references to such Clause of such Article, Section or definition.
1.6 REFERENCE TO AGENT OR LENDERS
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Any reference in this Agreement to the Administrative Agent or a Lender shall be
construed so as to include its permitted successors, transferees or assigns
hereunder in accordance with their respective interests.
1.7 ACCOUNTING TERMS
Unless otherwise specified, all accounting terms used herein or in any other
Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder shall be made, and all financial statements
required to be delivered hereunder or thereunder shall be prepared in accordance
with, those Canadian generally accepted accounting principles as now or (except
as provided in clause (a)(iii) of the definition of Net Funded Debt) hereafter
adopted by the Canadian Institute of Chartered Accountants or any successor
thereto ("GAAP") and all financial data submitted pursuant to this Agreement
shall be prepared in accordance with such principles, consistently applied;
provided that, if Celestica notifies the Administrative Agent that it wishes to
amend any covenant in Section 7.3 to eliminate the effect of any change in GAAP
or any change in the application of accounting policies on the operation of such
covenant (or the Administrative Agent notifies Celestica that the Majority
Lenders wish to amend Section 7.3 for such purpose), Celestica's compliance with
such covenant shall be determined on the basis of GAAP or accounting policies in
effect immediately before the relevant change in GAAP or change in accounting
policies became effective, until either such notices are withdrawn or such
covenant is amended in a manner satisfactory to Celestica, the Administrative
Agent and the Majority Lenders.
1.8 CONSOLIDATED FINANCIAL STATEMENTS AND CONSOLIDATED ACCOUNTS
Notwithstanding Section 1.7, wherever in this Agreement reference is made to a
consolidated financial statement of Celestica or to a determination to be made
on a consolidated basis, such reference shall be deemed to be to a consolidated
financial statement or consolidated basis, determined in accordance with GAAP,
which consolidates only the financial statements or accounts of Celestica and
its Subsidiaries, excluding all Unrestricted Subsidiaries, with investments by
Celestica or any Restricted Subsidiary in Unrestricted Subsidiaries accounted
for using equity accounting. At any time that Celestica and all Restricted
Subsidiaries have no Unrestricted Subsidiaries, all references to consolidated
financial statements herein shall be deemed to be references to the fully
consolidated financial statements of Celestica.
1.9 NON-BANKING DAYS
Except as otherwise specified herein, whenever any payment to be made hereunder
shall be stated to be due or any action to be taken hereunder shall be stated to
be required to be taken on a day other than a Banking Day, such payment shall be
made or such action shall be taken on the next succeeding Banking Day and, in
the case of the payment of any monetary amount, the extension of time shall be
included for the purposes of computation of interest or fees thereon.
1.10 REFERENCES TO TIME OF DAY
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Except as otherwise specified herein, a time of day shall be construed as a
reference to Toronto, Canada time.
Severability
In the event that one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect under any Applicable
Law, the validity, legality or enforceability of the remaining provisions hereof
shall not be affected or impaired thereby.
1.11 CURRENCY
All monetary amounts in this Agreement refer to United States Dollars unless
otherwise specified.
1.12 REFERENCES TO STATUTES
Except as otherwise provided herein, any reference in this Agreement to a
statute shall be construed to be a reference to such statute as the same may
have been, or may from time to time be, amended, reformed or otherwise modified
or re-enacted from time to time.
1.13 REFERENCES TO AGREEMENTS
Except as otherwise provided herein, any reference herein to this Agreement, any
other Loan Document or any other agreement or document shall be construed to be
a reference to this Agreement, such Loan Document or such other agreement or
document, as the case may be, as the same may have been, or may from time to
time be, amended, restated, extended, supplemented or replaced.
1.14 CONSENTS AND APPROVALS
Whenever the consent in writing or approval in writing of a party hereto is
required in a particular circumstance, unless otherwise expressly provided for
therein, such consent or approval shall not be unreasonably withheld or delayed
by such party.
1.15 SCHEDULES
The following are the Schedules attached hereto and incorporated by reference
and deemed to be part hereof:
Schedule A - Lenders
Schedule B - Lenders' Commitments
Schedule C - Applicable Margin and Facility Fee
Schedule D - Quarterly Certificate on Covenants
Schedule E - Conversion Notice
Schedule F - Drawdown Notice and Notice of Swing Line Borrowing
Schedule G - Guarantees
Schedule H - Rollover Notice
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Schedule I - Transfer Notice
Schedule J - Mandatory Cost Calculation
Schedule K - Opinions of Counsel
Schedule L - Extension Request
Schedule M - Permitted Encumbrance Certificate
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ARTICLE 2
THE FACILITY
2.1 ESTABLISHMENT OF THE FACILITY
Upon the terms and subject to the conditions hereof, each of the Lenders hereby
severally agrees to make its Global Rateable Portion of the Facility available
to the Borrowers as specified in Sections 2.2, 2.3 and 2.19.
2.2 PURPOSE, NATURE AND TERM OF THE FACILITY
(a) The Facility is being made available to the Borrowers by the Lenders
for the business and operations of the Borrowers and their respective
Restricted Subsidiaries, including, without limitation and for greater
certainty, to finance acquisitions of companies which, after the
acquisition thereof, will become Restricted Subsidiaries or assets
which, after the acquisition thereof, will be owned by Celestica or a
Restricted Subsidiary, the repayment of existing indebtedness and for
commercial paper support.
(b) Advances under the Facility shall not be used by any Borrower to
finance the acquisition of, investment in, loan to or to provide
working capital to an Unrestricted Subsidiary.
(c) Subject to the terms and conditions of this Agreement (including,
without limitation, Section 2.7) the Facility shall be a revolving
credit facility and the Borrowers may borrow, repay and reborrow under
the Facility as they see fit. The Facility shall terminate, subject to
Section 2.7, on the Maturity Date.
2.3 TERM AND AVAILABILITY OF ADVANCES
(a) The Facility shall be available for Drawdowns by the Borrowers, at the
option of the Borrowers, as follows:
(i) to Celestica or Celestica International, Drawdowns from
Lenders, each in a minimum amount of U.S. $5,000,000 and
integral multiples of U.S. $100,000 in excess thereof, in
United States Dollars by way of Base Rate Canada Advances; and
(ii) to Celestica or Celestica International, Drawdowns from
Lenders, each in a minimum amount of U.S. $5,000,000 and
integral multiples of U.S. $100,000 in excess thereof, in
United States Dollars by way of LIBOR Advances.
(b) Each Drawdown of an Advance pursuant to Section 2.3(a)(i) or (ii)
shall be made by irrevocable Drawdown Notice, which Drawdown Notice
shall be given by Celestica or Celestica International to the
Administrative Agent, not later than (y)
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10:00 a.m. Toronto, Canada time on the Banking Day prior to the
relevant Drawdown Date in the case of Base Rate Canada Advances, and
(z) 10:00 a.m. London, England time and 10:00 a.m. New York, New York
time on the third Banking Day prior to the relevant Drawdown Date in
the case of a LIBOR Advance in United States Dollars.
(c) A Borrower may not make a Drawdown under the Facility if, as a result
of such Drawdown, the sum of (i) the aggregate principal amount of all
LIBOR Advances in United States Dollars outstanding under the
Facility, plus (ii) the aggregate principal amount of all Base Rate
Canada Advances outstanding under the Facility (collectively, the
"Outstanding Amount") would exceed the aggregate of all Commitments of
the Lenders at such time (or such lesser amount as may be available
following a cancellation in part of the Facility pursuant to Section
2.6).
(d) If a Borrower wishes to make a Drawdown under the Facility for the
purpose of financing a Take-over Bid, such Borrower shall deliver to
the Administrative Agent a written notice (a "Take-over Bid Notice")
thereof at least ten (10) Banking Days prior to the day on which it
gives to the Administrative Agent a Drawdown Notice requesting such
Drawdown. Such Take-over Bid Notice shall include the details of such
Take-over Bid. As soon as possible, but in any event within five (5)
Banking Days of the giving of the Take-over Bid Notice, each Lender
shall, acting reasonably and in good faith, determine whether or not
it wishes to fund its Main Facility Rateable Portion of such Drawdown.
Notwithstanding any other provisions hereof, if any Lender determines
that it does not wish to fund its Main Facility Rateable Portion of
such Drawdown, such Lender shall not be required to fund its Main
Facility Rateable Portion of such Drawdown and the Drawdown shall be
reduced accordingly.
(e) This Section 2.3 shall not apply to Swing Line Advances.
2.4 LENDERS' OBLIGATIONS
(a) The obligations of the Lenders hereunder are several and not joint.
(b) Save as otherwise specifically provided herein, each Lender shall
participate in each Advance (other than, for certainty, any Swing Line
Advance) referred to in the applicable provisions of Section 2.3 in
accordance with its Main Facility Rateable Portion.
The failure of any Lender to make available its share of any Advance required to
be made by it under this Agreement shall not relieve any other Lender of its
obligation to make available its share of any Advance required to be made under
this Agreement.
2.5 REPAYMENT OF FACILITY
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(a) Provided that the Facility is not prepaid or accelerated in accordance
with Article 8, each Borrower shall repay the principal amount of all
Advances made to it outstanding under the Facility, together with
accrued and unpaid interest thereon, subject to Section 2.6 and
Section 2.7, on the Maturity Date to the Administrative Agent.
(b) All repayments of the Facility by the Borrowers shall be in a minimum
amount equal to the minimum amount of a Drawdown of each type of
Advance set out in Section 2.3 and amounts in excess thereof in
integral multiples of U.S. $100,000, except in the event of a Rollover
of an Advance into a lesser amount than the Advance then outstanding
or a repayment pursuant to paragraph (a) of this Section 2.5 which may
be in any amount.
2.6 PAYMENTS/CANCELLATION OR REDUCTION
Celestica may at any time, upon giving at least three (3) Banking Days' prior
notice to the Administrative Agent, repay, or cause another Borrower to repay
and, in each case, cancel, any drawn portion of the Facility or cancel in full
or, from time to time, in part, any undrawn portion of the Facility; provided,
however, that:
(a) in the event that any such repayment relates to a LIBOR Advance other
than on the scheduled last day of the applicable Interest Period, the
Borrower to which such Advance was made shall contemporaneously pay to
the Administrative Agent all applicable breakage costs, being any loss
or expense incurred by the Lenders by reason of the resulting
liquidation or re-employment of deposits of funds;
(b) any such reduction shall be in a minimum amount of U.S. $5,000,000 and
cancellations in excess thereof shall be in increments of U.S.
$100,000;
(c) any cancellation shall reduce the Commitment of each Lender on a pro
rata basis having regard to the Commitment of each Lender; and
(d) any such cancellation shall permanently reduce the Facility and may
not be reinstated.
2.7 EXTENSION OF MATURITY DATE
(a) MATURITY DATE. Subject to Section 2.6, this Section 2.7, Section 8.2
and Section 8.5, the Facility shall be available until the Maturity
Date. Notwithstanding the termination of availability of the Facility,
until all of the Obligations (other than contingent indemnity
obligations) of the Borrowers shall have been fully and indefeasibly
paid and satisfied and all financing arrangements among the Borrowers
and the Lenders with respect to the Obligations shall have been
cancelled or terminated, all of the rights and remedies under this
Agreement and the other Loan Documents shall survive.
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(b) EXTENSION OF MATURITY DATE. Not more than 90 days nor less than 60
days before the Maturity Date, Celestica may request, by delivery of
an Extension Request (which shall include the consent of all
Guarantors) to the Administrative Agent, that the Maturity Date be
extended for an additional period of one year. Within 5 days after
receipt of such Extension Request, the Administrative Agent shall
notify each Lender of the Extension Request by Celestica and provide
each Lender with a copy of such Extension Request. Within 25 days
after Celestica has delivered such Extension Request, each Lender
shall give the Administrative Agent notice in writing of its decision
to agree to so extend or to deny the requested extension (and the
failure to provide such notice shall be deemed to be a decision to
deny the requested extension). Within 5 days following the aforesaid
25 day period, the Administrative Agent shall give written notice to
Celestica and the Lenders advising as to those Lenders who have agreed
to the requested extension (for purposes of this Section 2.7, the
"APPROVING LENDERS") and those Lenders who have not agreed to or who
have been deemed to have not agreed to the requested extension (for
purposes of this Section 2.7, the "DISSENTING LENDERS").
(i) If all Lenders approve the requested extension, the Facility
shall be extended for a further one year and the Facility
shall be available until and each Borrower shall repay all
Advances and other amounts in accordance with Section 2.5 on
the Final Maturity Date.
(ii) If Lenders having Commitments equal to at least 66% but less
than 100% of the Commitments approve the requested extension
then an Approving Lender, at its option, may acquire all or
any portion of the rights and obligations of the Dissenting
Lenders under the Facility by giving written notice to the
Administrative Agent of the portion of the rights and
obligations of the Dissenting Lenders which such Approving
Lender is prepared to acquire. Such notice shall be given
within 10 days following receipt of the notice from the
Administrative Agent advising as to the Approving Lenders and
the Dissenting Lenders pursuant to Section 2.7(b). If more
than one Approving Lender gives notice to the Administrative
Agent that it wishes to acquire all or a portion of the rights
and obligations of the Dissenting Lenders under the Facility,
then each Approving Lender shall, subject to Section
2.7(b)((iii) be entitled to acquire its pro rata share of the
rights and obligations of the Dissenting Lenders under the
Facility. For the purpose of this Section 2.7(b)(ii), the
Approving Lenders' pro rata shares shall be determined based
on the Commitments (before acquisition under this Section
2.7(b)(ii)) of each of the Approving Lenders wishing to
acquire a portion of the rights and obligations of the
Dissenting Lenders under the Facility. The Administrative
Agent shall give written notice to Celestica within five days
following the expiry of the time for Approving Lenders to give
notice
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of acquisition pursuant to this Section 2.7(b)(ii), of the
Commitments of the Dissenting Lenders so acquired.
(iii) If one or more of the Approving Lenders (for purposes of this
Section 2.7(b)(iii), the "Acquiring Lenders") has given notice
to the Administrative Agent that it wishes to acquire all or a
portion of the rights and obligations of the Dissenting
Lenders under the Facility pursuant to Section 2.7(b)(ii),
then, concurrently with the notice given to Celestica pursuant
to Section 2.7(b)(ii), the Administrative Agent shall give
notice to each of the Acquiring Lenders setting out the
Commitments of and the amount of the outstanding Advances made
by the Dissenting Lenders to be acquired by each of the
Acquiring Lenders in accordance with Section 2.7(b)(ii) and of
the date (for purposes of this Section 2.7(b)(iii), the
"Acquisition Date") on which the acquisition shall be
effective. The Acquisition Date shall be the tenth day
following the date of the notice given pursuant to this
Section 2.7(b)(iii). At or before 11:00 a.m. (Toronto, Canada
time) on the Acquisition Date, each Acquiring Lender shall
deposit with or transfer to the Administrative Agent for the
account of the Dissenting Lenders an amount equal to the
amount of the outstanding credit to be acquired by it pursuant
to this Section 2.7(b)(iii). Upon receipt of such amounts, the
Administrative Agent shall (i) disburse such amounts to each
of the Dissenting Lenders in accordance with their respective
entitlement thereto against delivery of forms of Transfer
Notice executed by each of the Dissenting Lenders; and (ii)
make appropriate entries in the books of account regarding the
Facility. The provisions of Section 11.11(b), (c) and (d)
shall apply mutatis mutandis to any acquisition pursuant to
this Section 2.7(b)(iii). Each acquisition of the outstanding
Advances of a Dissenting Lender by an Acquiring Lender shall
be subject to the prior consent of Celestica, which consent
shall not be unreasonably withheld or delayed, provided that
it shall not be unreasonable for Celestica to withhold its
consent if such acquisition gives rise to a claim for
increased costs pursuant to Article 3 or any obligation on the
part of an Obligor to deduct or withhold any Taxes from or in
respect of any sum payable under this Agreement, in excess of
what would have been the case without such acquisition, but it
shall be unreasonable for Celestica to withhold its consent if
such Acquiring Lender waives the rights to any benefits under
Section 3.5 in respect of the Advances purchased by it
pursuant to this clause (iii).
(iv) If Lenders having Commitments equal to at least 66% but less
than 100% of the Commitments approve the requested extension
and if the Acquiring Lenders have not acquired all of the
rights and obligations of the Dissenting Lenders pursuant to
Section 2.7(b)(iii), then Celestica may, at its option, either
(A) locate one or more other financial institutions (for
purposes of this Section 2.7(b)(iv), "Alternate Lenders"),
satisfactory to
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the Administrative Agent acting reasonably, to become Lenders
and to acquire all or a pro rata share of the rights and
obligations of the Dissenting Lenders under the Facility which
have not been acquired by the Acquiring Lenders or (B) repay
to the Administrative Agent on behalf of such Dissenting
Lenders all of the outstanding Advances which have been
advanced by such Dissenting Lenders and all accrued and unpaid
interest and fees thereon without any repayment to any other
Lenders. For the purpose of this Section 2.7(b)(iv), the
Alternate Lenders' pro rata shares shall be determined based
on the Commitments of each of the Alternate Lenders wishing to
acquire a portion of the rights and obligations of the
Dissenting Lenders under the Facility. If all of the rights
and obligations of the Dissenting Lenders have not been
acquired by Acquiring Lenders or Alternate Lenders or both or
if all of the credit outstanding hereunder which has been
extended by such Dissenting Lenders and all accrued and unpaid
interest and fees thereon have not been repaid as aforesaid on
or before the Maturity Date, there shall be no extension of
the Maturity Date and Section 2.7(b)(v) shall apply. If (A)
all of the rights and obligations of the Dissenting Lenders
have been acquired by Acquiring Lenders and/or Alternate
Lenders and/or (B) if all of the Advances outstanding
hereunder which have been advanced by such Dissenting Lenders
and all accrued and unpaid interest and fees thereon have been
repaid as aforesaid on or before the Maturity Date, the
Facility shall be extended for a further one year and this
Facility shall be available until and each Borrower shall
repay all Advances and other amounts in accordance with
Section 2.5(b) on the Final Maturity Date.
(v) If Lenders having Commitments of less than 66% of the
Commitments under the Facility approve the requested extension
then the Facility shall be available until, and each Borrower
shall repay all Advances and other amounts in accordance with
Section 2.5 on the Maturity Date.
A Dissenting Lender shall remain committed to make Advances under the Facility
until the earlier of the date on which the Obligations owing to it are assigned
or repaid as aforesaid and the Maturity Date.
2.8 INTEREST ON BASE RATE CANADA ADVANCES
Interest on each Base Rate Canada Advance shall accrue at a rate per annum equal
to the Base Rate Canada in effect from time to time during the period of time
that the Base Rate Canada Advance is outstanding. Such interest shall be payable
to the Administrative Agent at its Toronto Office in United States Dollars
quarterly in arrears on the last Banking Day of each of March, June, September
and December (each hereinafter referred to as an "Interest Payment Date") in
each year for the period from and including the Drawdown Date for such Advance
(or, if applicable, the date on which such Advance was converted into a Base
Rate Canada Advance) or the preceding Interest Payment Date for such Base Rate
Canada Advance, as the case may be, to and including the day preceding such
Interest Payment Date and shall be calculated on the
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principal amount of the Base Rate Canada Advance from time to time outstanding
during such period and on the basis of the actual number of days elapsed and the
number of days deemed to be included in a year by the definition of the rate
used to set Base Rate Canada. Changes in the Base Rate Canada shall cause an
automatic and immediate adjustment of the interest rate payable on Base Rate
Canada Advances without the necessity of any notice to the Borrowers.
2.9 LIBOR ADVANCES
(a) LIBOR Advances shall be available for Drawdown, Conversion or Rollover
in United States Dollars in minimum principal amounts of U.S.
$5,000,000 and integral multiples of U.S. $100,000 in excess thereof.
Each Drawdown Notice shall specify the applicable Interest Period for
the LIBOR Advance. The duration of each such Interest Period shall be
for a period of approximately one, two, three or six months (or such
other period as may be agreed to by the Administrative Agent with the
consent of the Majority Lenders), as the Borrower requesting such
Drawdown, Conversion or Rollover may select in the applicable Drawdown
Notice, Conversion Notice or Rollover Notice. No LIBOR Advance may
have an Interest Period ending after the Maturity Date. If any
Interest Period would end on a day which is not a Banking Day, such
Interest Period shall be extended to the next succeeding Banking Day
unless such next succeeding Banking Day falls in the next calendar
month, in which case such Interest Period shall be shortened to end on
the immediately preceding Banking Day.
(b) If a Lender determines that deposits of the necessary amount for the
applicable Interest Period are not available in the London interbank
market or if for any other reason the Administrative Agent, acting
reasonably, is unable to determine the applicable LIBO Rate, then the
relevant LIBOR Advance will not be made, and the Administrative Agent
will discuss with such Borrower the particular circumstances and
implications of such event. In the event that such determination is
made by the Administrative Agent in the case of a proposed Rollover of
an existing LIBOR Advance or a proposed Conversion of a Base Rate
Canada Advance into a LIBOR Advance, the proposed LIBOR Advance will
automatically be deemed to be a Base Rate Canada Advance.
(c) Interest on any LIBOR Advance shall be calculated at a rate per annum
equal to the LIBO Rate plus the Applicable Margin, plus any applicable
Mandatory Cost then in effect, shall accrue from day to day and shall
be calculated on the basis of the actual number of days elapsed
(including the first day of each Interest Period but excluding the
last day thereof) and divided by 360. Interest on any LIBOR Advance
shall be payable to the Administrative Agent in United States Dollars
in arrears on the last day of the Interest Period relating thereto;
provided, however, that if the Interest Period is for a term of more
than three months, interest shall be payable on the last Banking Day
of the first three-month period and on the last Banking Day of each
three-month period thereafter, as well as on the last day of the
Interest Period.
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(d) If a LIBOR Advance to a Borrower is neither repaid on the last day of
an Interest Period nor converted into another type of Advance on such
date pursuant to Section 2.12, and if the Administrative Agent has not
received a Rollover Notice or a Conversion Notice specifying the term
of the next Interest Period for such LIBOR Advance at or before 10:00
a.m. on the third Banking Day prior to the last day of the then
current Interest Period, then the outstanding LIBOR Advance shall be
deemed to be converted, by way of Conversion on the last day of the
then current Interest Period, into a Base Rate Canada Advance.
(e) Except as otherwise provided herein, LIBOR Advances shall not be
repaid, prepaid or converted into another type of Advance except on
the last day of any Interest Period relating thereto.
2.10 METHOD AND PLACE OF PAYMENT
(a) Each payment to be made by a Borrower under this Agreement shall be
made without deduction, set-off or counterclaim.
(b) All payments of principal, interest and fees hereunder shall be made
for value at or before 12:00 noon (Toronto, Canada time) on the day
such amount is due by deposit or transfer thereof to the account of
the Administrative Agent maintained at its Toronto Office. Payments
received after such time shall be deemed to have been made on the next
following Banking Day.
(c) Subject to Section 9.16, each Lender shall be entitled to its Main
Facility Rateable Portion of each repayment or prepayment of principal
of a Base Rate Canada Advance (other than a Swing Line Advance) or a
LIBOR Advance.
(d) Notwithstanding Section 2.9(c), in the event that a Borrower is
required to pay Additional Compensation to a Lender, such Borrower may
prepay all or any portion of the Advances made by such Lender to such
Borrower, without any obligation to prepay any portion of the Advances
made by other Lenders to whom the Borrower is not required to pay
Additional Compensation; provided, however, that any prepayment of a
LIBOR Advance shall be subject to the provisions of Section 10.2.
2.11 FEES
(a) During the period commencing on the date hereof and ending on the
Maturity Date (the "relevant period"), Celestica on behalf of itself
and Celestica International shall pay to the Administrative Agent for
the account of the Lenders a fee (the "Facility Fee") calculated at
the rate per annum set forth in Schedule C on the aggregate
Commitments (after giving effect to any cancellation and reduction
pursuant to Sections 2.6 and 2.7) hereunder during the relevant period
from day to day which fee shall be payable quarterly in arrears.
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(b) Celestica shall pay to the Administrative Agent for its own account
the fees specified in the letter dated June 26, 2001 addressed by the
Administrative Agent to Celestica.
2.12 CONVERSION OPTIONS
Subject to the provisions of this Agreement, a Borrower may convert any type of
Advance outstanding under the Facility as follows:
(a) provided that no Event of Default has occurred and is continuing, a
Base Rate Canada Advance or a portion thereof into a LIBOR Advance by
giving the Administrative Agent a Conversion Notice no later than
10:00 a.m. three (3) Banking Days prior to the date of the proposed
Conversion;
(b) provided that no Event of Default has occurred and is continuing, a
LIBOR Advance or a portion thereof into a Base Rate Canada Advance on
the last day of the Interest Period of the relevant LIBOR Advance by
giving the Administrative Agent a Conversion Notice no later than
10:00 a.m. one (1) Banking Day prior to the date of the proposed
Conversion.
2.13 EXECUTION OF NOTICES
All Drawdown Notices, Conversion Notices, Rollover Notices and notices of
repayment or cancellation and, unless otherwise provided herein, all other
notices, requests, demands or other communications to be given to the
Administrative Agent by a Borrower hereunder shall be executed by any one
officer or director of the Borrower making each such Drawdown Notice, Conversion
Notice, Rollover Notice or notice of repayment or cancellation.
2.14 EVIDENCE OF INDEBTEDNESS
The Administrative Agent shall open and maintain in accordance with its usual
practice books of account evidencing all Advances and all other amounts owing by
the Borrowers to the Administrative Agent and the Lenders hereunder, details of
every Drawdown Date in respect of each Advance and all amounts from time to time
owing or paid by a Borrower to the Administrative Agent for its own account or
for the account of the Lenders hereunder, the amounts of principal, interest and
fees payable from time to time hereunder and the unused portion of each Lenders'
Commitment available to be drawn down by the Borrowers. The information entered
in the foregoing accounts shall constitute, in the absence of manifest error,
prima facie evidence of the obligations of the Borrowers to the Administrative
Agent and the Lenders hereunder, the date the Lenders made each Advance
available to the Borrowers and the amounts the Borrowers have paid from time to
time on account of the principal of and interest on the Advances.
2.15 INTEREST ON UNPAID COSTS AND EXPENSES
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Unless the payment of interest is otherwise specifically provided for herein,
where a Borrower fails to pay any amount required to be paid by a Borrower
hereunder when due, having received notice that such amount is due, such
Borrower shall pay interest to the Administrative Agent on such unpaid amount,
including overdue interest from the time such amount is due until paid at an
annual rate equal to the sum of (i) 2%, plus (ii) the Base Rate Canada. Such
interest shall be determined daily, compounded quarterly in arrears on each
Interest Payment Date in each year and payable on demand.
2.16 CRIMINAL RATE OF INTEREST
Notwithstanding the foregoing provisions of this Article 2, the Borrowers shall
in no event be obliged to make any payments of interest or other amounts payable
to the Lenders hereunder in excess of an amount or rate which would be
prohibited by law or would result in the receipt by the Lenders of interest at a
criminal rate (as such terms are construed under the Criminal Code (Canada)).
2.17 COMPLIANCE WITH THE INTEREST ACT (CANADA)
For the purposes of this Agreement, whenever any interest is calculated on the
basis of a period of time other than a calendar year, the annual rate of
interest to which each rate of interest determined pursuant to such calculation
is equivalent for the purposes of the Interest Act (Canada) is such rate as so
determined multiplied by the actual number of days in the calendar year in which
the same is to be ascertained and divided by the number of days used in the
basis of such determination.
2.18 NOMINAL RATE OF INTEREST
The parties acknowledge and agree that all calculations of interest under the
Loan Documents are to be made on the basis of the nominal interest rate
described herein and not on the basis of effective yearly rates or on any other
basis which gives effect to the principle of deemed reinvestment of interest.
The parties acknowledge that there is a material difference between the stated
nominal interest rates and the effective yearly rates of interest and that they
are capable of making the calculations required to determine such effective
yearly rates of interest.
2.19 SWING LINE FACILITY
(a) SWING LINE ADVANCES. Subject to subsection (b), the Swing Line Lender
hereby agrees, on the terms and conditions set forth in this
Agreement, to make Swing Line Advances in United States Dollars to
Celestica or Celestica International from time to time from the date
hereof to the Maturity Date.
(b) LIMITATION ON SWING LINE ADVANCES. No Swing Line Advance shall be made
by the Swing Line Lender if:
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(i) the sum of (A) the amount of such Swing Line Advance and (B)
the aggregate principal amount of all Swing Line Advances
outstanding on such day exceeds the Available Swing Line
Commitment; or
(ii) immediately after such Swing Line Advance is made, the
aggregate outstanding principal amount of all Advances exceeds
the aggregate Commitments.
(c) AMOUNT OF EACH SWING LINE ADVANCE. Each Swing Line Advance shall be in
an aggregate principal amount of U.S. $1,000,000 or any integral
multiple thereof.
(d) INTEREST RATES. Each Swing Line Advance shall bear interest on the
outstanding principal amount thereof, for each day from the date such
Swing Line Advance is made until it becomes due, at a rate per annum
equal to, the Base Rate Canada plus the Applicable Margin.
(e) PROCEDURE FOR REQUESTING SWING LINE ADVANCES. The relevant Borrower
shall give to the Administrative Agent telephonic notice no later than
10:00 a.m. (local time) on the date of each Swing Line Advance
specifying (i) the date of such Swing Line Advance, which shall be a
Banking Day in Toronto, Canada; and (ii) the amount of such Swing Line
Advance. Such telephonic notice shall be followed by delivery by the
relevant Borrower by no later than 3:00 p.m. local time on the same
day of a Notice of Swing Line Borrowing. Promptly after receiving such
Notice of Swing Line Borrowing, the Administrative Agent shall notify
the relevant Swing Line Lender of the contents thereof and such Notice
of Swing Line Borrowing shall not thereafter be revocable by such
Borrower.
(f) FUNDING OF SWING LINE ADVANCES. On the date of each Swing Line
Advance, the Swing Line Lender shall make available such Swing Line
Advance no later than 12:00 noon, Toronto, Canada time.
(g) OPTIONAL PREPAYMENT OF SWING LINE ADVANCES. Any Borrower may prepay
its Swing Line Advance in whole at any time or from time to time in
part in a minimum principal amount of U.S. $1,000,000, as the case may
be, or any integral multiple thereof, by giving notice of such
prepayment to the Administrative Agent not later than 10:00 a.m.
Toronto, Canada time on the date of prepayment and paying the
principal amount to be prepaid (together with interest accrued thereon
to the date of prepayment) to the Administrative Agent for the account
of the relevant Swing Line Lender.
(h) MATURITY OF SWING LINE ADVANCES. Any Swing Line Advance outstanding on
the seventh day after such Swing Line Advance, if not repaid by such
Borrower on such seventh day, shall convert to a Base Rate Canada
Advance. If, prior to the seventh day after such Swing Line Advance
was made, the Administrative Agent declares the Advances to be
immediately due and payable or the Commitments automatically
terminate, each as set out in Section 8.2, such Swing
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Line Advance shall be due and payable on the date of such declaration
by the Administrative Agent or automatic termination.
(i) REFUNDING UNPAID SWING LINE ADVANCES. If any Swing Line Advance is
converted, pursuant to subsection (j), to another form of Advance, the
Swing Line Lender shall forthwith notify the Administrative Agent and
the Administrative Agent shall, by notice to the Lenders (including
the Swing Line Lender in its capacity as Lender), require the Lenders
to pay to the Administrative Agent, for the account of the Swing Line
Lender, their Main Facility Rateable Portion of the aggregate amount
of such other form of Advance. Such other form of Advance shall
constitute, a Base Rate Canada Advance, provided that if the Lenders
are prevented from making such Advances by provisions of applicable
bankruptcy laws or otherwise, the amount so paid by each Lender shall
constitute a purchase by it of a participation in the unpaid principal
amount of such converted Swing Line Advances. Any such notice to the
Lenders shall specify the date on which such payments are to be made
by them. No later than 12:00 noon Toronto, Canada time on the date so
specified each Lender shall pay the amount so notified to it in
immediately available funds to the Administrative Agent for the
account of the Swing Line Lender. Each Lender's obligations to make
payments for the account of the Swing Line Lender under this
subsection shall be absolute and unconditional and shall not be
affected by any circumstance provided that no Lender shall be
obligated to make any payment to the Administrative Agent under this
Section with respect to a Swing Line Advance made by the Swing Line
Lender at a time when the Swing Line Lender had received written
notice from Celestica or the Administrative Agent that a Default had
occurred and was continuing.
(j) INCREASING OR DECREASING AVAILABLE SWING LINE COMMITMENT. At any time
and from time to time, Celestica may, by written notice to the
Administrative Agent, increase or decrease the Available Swing Line
Commitment, provided that the Available Swing Line Commitment shall at
no time exceed U.S. $75,000,000 less the amount, if any, that the
Commitment of the Swing Line Lender has been reduced pursuant to
Section 2.6 or be less than zero.
2.20 INCREASE IN AGGREGATE COMMITMENT AMOUNT TO U.S.$750,000,000
(a) Notwithstanding any other provision of this Agreement, each of the
parties hereto agree that Celestica may, from time to time and at any
time, give notice to the Administrative Agent that one or more
financial institutions (each an "Additional Lender") have agreed to
make commitments (each an "Additional Commitment") hereunder
(provided, however, that Celestica shall not be entitled to give such
notice at any time at which the aggregate Commitments is equal to U.S.
$750,000,000 (or such lesser amount as may be available following a
cancellation in part of the Facility pursuant to Section 2.6)). Upon
receipt of such written notice, each party hereto hereby irrevocably
authorizes the Administrative Agent to:
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(i) insert the name of the Additional Lender or Affiliate of the
Additional Lender (collectively, the "Additional Parties")
that will become a Lender on Schedule A;
(ii) amend Schedule B to reflect the Additional Commitment of the
Additional Lender;
(iii) affix signature pages of the Additional Parties to this
Agreement; and
(iv) if Advances (other than Swing Line Advances) are outstanding
at the time such notice is given, then the Additional Parties
shall make available to the Administrative Agent an amount
equal to their respective Main Facility Rateable Portion
(calculated as if the Additional Commitment were a Commitment)
of such Advances and the Administrative Agent shall make
available to each Lender that Lender's Main Facility Rateable
Portion (calculated without reference to the Additional
Commitment) of such amount,
whereupon each of the Borrowers, the Administrative Agent, each
Lender and the Additional Parties shall acquire the same rights and
assume the same obligations between themselves as they would have
acquired and assumed had such Additional Parties been original
parties hereto as Lenders.
(b) Each of the parties hereto agrees that it will promptly execute and
deliver all such documents, including, without limitation, all such
additional conveyances, transfers and consents and other assurances,
and do all such other acts and things as may from time to time be
desirable in order to better evidence or give effect to this Section
2.20.
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ARTICLE 3
CHANGE OF CIRCUMSTANCES
AND INDEMNIFICATION
3.1 LENDER REPRESENTATION
Each Lender represents to each of Celestica and Celestica International and the
Administrative Agent that it is resident in Canada for the purposes of the
Income Tax Act (Canada) and that it is beneficially entitled to the principal,
interest and fees payable to it under the Loan Documents. The foregoing
representation shall be true and correct and shall be deemed to be given by each
Lender on each day that a payment of interest, principal or fees is to be made
to it pursuant to a Loan Document.
3.2 INCREASED COSTS
In the event of (i) any Applicable Law coming into force after the date hereof,
(ii) any change in any Applicable Law, or in the interpretation or application
thereof by any court or by any governmental, regulatory, other authority or
central bank charged with the administration thereof, or (iii) compliance by any
Lender with any direction, request or requirement (whether or not having the
force of law but, if not having the force of law, one with which a responsible
bank acting reasonably would comply) of any government, monetary authority,
central bank or comparable agency (each such event being hereinafter referred to
as a "change in law") which now or hereafter:
(a) subjects a Lender to any Tax or changes the basis of taxation, or
increases any existing Tax (in each case, except for the coming into
force of any Tax or change in the basis of taxation in respect of or
the change in the rate of Tax charged on net income as a whole, on
franchises or capital applicable to the relevant jurisdictions of the
Lender), on payments of principal, interest or other amounts payable
by the Borrowers to such Lender under any Loan Document or on or by
reference to the amount of any Advances made or to be made by any
Lender hereunder or on or by reference to the Commitment of any
Lender, or
(b) imposes, modifies or deems applicable any reserve, deposit, ratio or
similar requirements or otherwise imposes any cost on any Lender in
funding or maintaining all or any of the Advances or its Commitment;
or
(c) has the effect of increasing the amount of overall capital required to
be maintained by a Lender, taking into account the existence of such
Lender's participation in any Advance or any of its obligations under
any Loan Document (including, without limitation, all or any part of
its Commitment),
and the result of any of the foregoing is to increase the cost to a
Lender, reduce the income receivable by it or reduce the effective
return on the capital of such Lender in respect of any Advances and/or
its Commitment to an extent which such Lender believes to be material
(after consultation with Celestica), the Lender
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shall give notice thereof to the Administrative Agent and the
Administrative Agent shall give notice thereof to the Borrowers
(herein called a "Notice of Amount") stating the event by reason of
which it believes it is entitled to Additional Compensation, such cost
and/or such reduction in such return (or such proportion of such
reduction as is, in the reasonable and bona fide opinion of such
Lender, attributable to its obligations hereunder), the amount of such
Additional Compensation (as hereinafter defined) incurred by such
Lender and supplying reasonable supporting evidence (including, in the
event of change of Applicable Law, a photocopy of the Applicable Law
evidencing such change together with a certificate of a duly
authorized officer of the Lender setting forth the Additional
Compensation and the basis for calculation of such Additional
Compensation and an opinion in writing of such Lender's counsel
confirming such change); provided that the Lender shall not be
required to disclose any information required to be kept confidential
by Applicable Law (in which case the requirement of such
confidentiality shall be supported by an opinion of such Lender's
Counsel) within ten (10) Banking Days of the date of receipt of any
Notice of Amount, the amount set out therein (in this Article 3
referred to as "ADDITIONAL COMPENSATION") shall be paid to the Lender
by Celestica and Celestica International. In the event such Lender
subsequently recovers all or part of the Additional Compensation paid
by the Borrowers, it shall repay an equal amount to such Borrowers.
3.3 ILLEGALITY
If, with respect to any Lender, the implementation of any existing provision of
Applicable Law or the adoption of any Applicable Law, or any change therein or
in the interpretation or application thereof by any court or by any statutory
board or commission now or hereafter makes it unlawful for such Lender to make,
fund or maintain all or any portion of an outstanding Advance, to maintain all
or any part of its Commitment hereunder or to give effect to its obligations in
respect of all or any portion of an outstanding Advance, such Lender may, by
written notice thereof to the Borrowers and the other Lenders through the
Administrative Agent (supported, at the request and expense of the Borrowers, by
an opinion of such Lender's counsel), declare the obligations of such Lender
under this Agreement to be terminated whereupon the same shall forthwith
terminate, and the Borrowers to whom such Lender has made Advances shall repay
within the time required by such law (or as promptly as practicable if already
unlawful or at the end of such longer period, if any, as such Lender in its bona
fide opinion may agree) the principal of the Advances made by such Lender. If
any such change shall affect only that portion of such Lender's obligations
under this Agreement that is, in the bona fide opinion of such Lender, severable
from the remainder of this Agreement so that the remainder of this Agreement may
be continued in full force and effect without otherwise affecting any of the
obligations of such Lender or the Borrowers hereunder, such Lender shall declare
its obligations under only that portion so terminated.
3.4 MITIGATION
(a) If, in respect of any Lender, circumstances arise which would
result, upon the giving of notice, in:
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(i) Additional Compensation being paid by a Borrower to a Lender
under Section 3.2; or
(ii) a reduction of all or any of an Advance by such Lender or the
Lender's Commitment pursuant to Section 3.3; or
(iii) the prepayment of the portion of the Advances outstanding to
it pursuant to Section 3.3; or
(iv) the payment of any amount by an Obligor under Section 3.5;
then such Lender, promptly upon becoming aware of the same and the
possible results thereof, shall notify the Administrative Agent
thereof and the Administrative Agent shall notify the Borrowers
thereof and, in consultation with the Borrowers shall take such steps,
if any, as such Lender in its bona fide opinion considers appropriate
to mitigate the effects of such circumstances. Without limiting the
generality of the foregoing, if it is commercially reasonable, such
Lender shall make reasonable efforts to limit the incidence of any
such Additional Compensation and seek recovery for the account of the
Borrowers upon the Borrower's request and at the Borrower's expense;
provided that such Lender in its reasonable determination suffers no
appreciable economic, legal, regulatory or other disadvantage. In all
events, the Lenders shall promptly co-operate with the Borrowers to
the extent possible, to rearrange the affected availment to one that
may not be affected by such change, but failure to effect a change in
availment shall not relieve the relevant Borrower of its obligation to
pay the Additional Compensation. Notwithstanding the foregoing
provisions, a Lender shall only be entitled to rely upon the
provisions of Section 3.2 if and for so long as it is not treating the
Borrowers in any materially different or in any less favourable manner
than is applicable to any other customers of any Lender, where such
other customers are bound by similar provisions to the foregoing
provisions of Section 3.2.
(b) If any Lender seeks Additional Compensation pursuant to Section 3.2
hereof (the "Affected Lender"), then the relevant Borrowers may
indicate to the Administrative Agent in writing that they desire to
(i) replace the Affected Lender with one or more of the other Lenders,
and/or (ii) amend a Drawdown Notice or Notice of Swing Line Borrowing
to reduce the amount sought to be borrowed to reflect the reduced
amount hereunder, and the Administrative Agent shall then forthwith
give notice to the other Lenders that any Lender or Lenders may, in
the aggregate, advance all or part of the Affected Lender's Main
Facility Rateable Portion of such Advance and, in the aggregate,
assume all or part of the Affected Lender's Commitment and obligations
hereunder and acquire all or part of the rights of the Affected Lender
and assume all or part of the obligations of the Affected Lender under
each of the other Loan Documents (but in no event shall any other
Lender or the Administrative Agent be obliged to do so). If a Lender
shall so agree in writing (herein collectively called the "Assenting
Lenders" and individually called an "Assenting Lender") with respect
to such advance,
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acquisition and assumption, the Main Facility Rateable Portion of such
Advance of each Assenting Lender (other than a Swing Line Advance) and
the Commitment and the obligations of such Assenting Lender under this
Agreement and the rights and obligations of such Assenting Lender
under each of the other Loan Documents shall be increased accordingly
on a date mutually acceptable to such Assenting Lender and the
Borrowers. On such date, the Assenting Lender shall advance to the
relevant Borrowers the relevant portion of the Affected Lender's Main
Facility Rateable Portion of the outstanding Advances (other than
Swing Line Advances) and the relevant Borrowers shall prepay to the
Affected Lender the Advances of the Affected Lender then outstanding,
together with all interest accrued thereon and all other amounts owing
to the Affected Lender hereunder, and, upon such advance and
prepayment, the Affected Lender shall cease to be a "Lender" for
purposes of this Agreement and shall no longer have any obligations
hereunder. Upon the assumption of the Affected Lender's Commitment as
aforesaid by an Assenting Lender, Schedule B hereto shall be deemed to
be amended to increase the Commitment of such Assenting Lender by the
amount of such assumption and to reduce the Commitment of the Affected
Lender by a like amount. If no Assenting Lender is found, then in such
event, the relevant Borrower is entitled to repay the Affected Lender
and reduce its obligations hereunder by such amount so repaid.
3.5 TAXES
(a) All payments by any Obligor under this Agreement or the Guarantees
shall be made free and clear of and without deduction or withholding
for any and all Taxes, unless required by law. If an Obligor shall be
required by law, rule, regulation or the interpretation thereof by the
relevant governmental authority to deduct or withhold any such Taxes
from or in respect of any sum payable under this Agreement,
(i) the sum payable shall be increased by such additional amount
as may be necessary so that after making all required
deductions or withholdings (including deductions or
withholdings applicable to additional amounts paid under this
Section 3.5), the Lenders or Agent, as applicable, receive a
net amount equal to the full amount they would have received
if no deduction or withholding had been made;
(ii) the Obligor shall make such required deductions or
withholdings;
(iii) the Obligor shall pay the full amount deducted or withheld to
the relevant taxation or other authority in accordance with
Applicable Law; and
(iv) such Obligor shall deliver to the relevant Lender or
Administrative Agent, as applicable, as soon as practicable
after it has made such payment to the applicable authority (x)
a copy of such receipt as is issued by such authority
evidencing the deduction or withholding of all amounts
required
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to be deducted or withheld from the sum payable hereunder or
(y) if such a receipt is not available from such authority,
notice of the payment of such amount deducted or withheld;
provided that the obligations of an Obligor to pay additional
amounts pursuant to hereto shall not apply with respect to
Taxes ("Excluded Taxes") arising by virtue of a Lender or the
Administrative Agent, as applicable, having a connection with
the jurisdiction that imposes the Taxes other than merely by
the execution of this Agreement, receipt of payments under
this Agreement, the holding and disposition of Advances, the
performance of its obligations or the enforcement of its
rights under this Agreement.
(b) Without prejudice to the foregoing provisions of this Section 3.5, if
the Administrative Agent or any Lender (in this Section 3.5, an
"Indemnified Person") is required at any time (whether before or after
any Obligor has discharged all of its other obligations hereunder) to
make any payment on account of any Tax which an Obligor is required to
withhold in accordance with Section 3.5(a) hereof or for which an
Obligor is otherwise required to indemnify a Lender or the
Administrative Agent pursuant to Sections 3.5(a), (c) or (d) hereof,
or if any liability in respect of any such payment is asserted,
imposed, levied or assessed against such Indemnified Person, the
Obligor in respect of which such sum was received or receivable shall,
within 30 days of written demand of the Administrative Agent or
Lender, promptly indemnify such Indemnified Person against such
payment or liability, together with interest, penalties and expenses
payable or incurred in connection therewith including, without
limitation, any Tax imposed by any jurisdiction on or in relation to
any amounts paid to or for the account of such Indemnified Person
pursuant to this Section 3.5. An Indemnified Person intending to make
a claim pursuant to this Section 3.5 shall notify the Obligor of the
event in respect of which it believes it is entitled to make such
claim and supply reasonable supporting evidence including a copy of
the relevant portion of any written assessment, provided that any such
Indemnified Person shall not be required to disclose any information
required to be kept confidential by regulation or contract (in which
case the basis of such confidentiality, at the request and expense of
the Borrowers, shall be supported by an opinion of counsel of
reputable standing).
(c) If an Obligor fails to pay any Taxes required to be paid by it
pursuant to this Section 3.5 when due to the appropriate taxing
authority or fails to remit to the Administrative Agent, for the
account of the respective Lenders, for the account of any other Agent
or for the Administrative Agent's own account, as applicable, the
required receipts or other documentary evidence required by Section
3.5(a)(ii), the Obligor shall indemnify the Lenders or Agent, as
applicable, for any incremental Taxes, interest or penalties that may
become payable by any Lender or the Administrative Agent as a result
of any such failure. For purposes of this
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Section 3.5, a distribution by the Administrative Agent or any Lender
to or for the account of any Lender shall be deemed a payment by the
Obligor.
(d) Each Obligor will indemnify the Lenders and Agents for the full amount
of Taxes imposed by any jurisdiction and paid by such Lender or Agent,
as applicable with respect to any amounts payable pursuant to this
Section 3.5, and any liability arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such
Lender or Agent, as applicable makes written demand therefor which
demand shall identify the nature and amount of Taxes for which
indemnification is being sought and shall include a copy of the
relevant portion of any written assessment from the relevant taxing
authority demanding payment of such Taxes.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 3.5
shall survive the payment in full of principal, interest, fees and any
other amounts payable hereunder and the termination of this Agreement
and the Guarantees.
3.6 TAX REFUND
(a) If, following the imposition of any Tax on any payment by any Obligor
in consequence of which such Obligor pays an additional amount under
Section 3.5(a), any Lender receives or is granted a refund of any Tax
actually paid by it which in such Lender's sole opinion (acting in
good faith) is attributable to such additional amount paid by such
Obligor and is both identifiable and quantifiable by it without
requiring such Lender or its professional advisers to expend a
material amount of time or incur a material cost in so identifying or
quantifying (any of the foregoing, to the extent so identifiable and
quantifiable, being referred to as a "refund"), such Lender shall, to
the extent that it can do so without prejudice to the retention of the
relevant refund and subject to such Obligor's obligation to repay
promptly on demand by the Lender the amount to such Lender if the
relevant refund is subsequently disallowed or cancelled, reimburse
such Obligor promptly after receipt of such refund by such Lender with
such amount as such Lender shall in its sole opinion but in good faith
have concluded to be the amount or value of the relevant refund.
(b) Nothing contained in this Agreement shall interfere with the right of
any Lender to arrange its Tax and other affairs in whatever manner it
thinks fit. No Lender shall be required to disclose any confidential
information relating to the organization of its affairs.
ARTICLE 4
CONDITIONS PRECEDENT TO DRAWDOWN
4.1 CONDITIONS FOR FIRST DRAWDOWN
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The following conditions shall be satisfied by the Borrowers on or prior to the
first Drawdown Date after the date hereof:
(a) each Obligor shall have duly authorized, executed and delivered to the
Administrative Agent each of the Loan Documents to which it is a party
and each such Loan Document shall constitute a legal, valid and
binding obligation of such Obligor, enforceable against such Obligor
in accordance with its terms;
(b) each Obligor shall have delivered to the Administrative Agent:
(i) a certified copy of its Organic Documents,
(ii) a certified copy of the resolutions authorizing it to enter
into, execute and deliver the Loan Documents to which it is a
party and to perform its obligations thereunder;
(iii) a certificate as to the incumbency of its officers signing the
Loan Documents to which it is a party; and
(iv) a certificate of status, good standing or like certificate
with respect to such Obligor issued by the appropriate
government officials of the jurisdiction of its incorporation;
(c) the representations and warranties set forth in Section 6.1 shall be
true and correct in all material respects on and as of the Drawdown
Date, both before and after giving effect to the Drawdown of such
Advance and to the application of proceeds therefrom, by reference to
the facts and circumstances then existing;
(d) no Default or Event of Default shall have occurred and be continuing,
nor shall any such event occur as a result of making the Advances or
the application of proceeds therefrom on the Drawdown Date;
(e) there shall have been no Material Adverse Change since December 31,
2000;
(f) each Material Restricted Subsidiary shall have executed and delivered
to the Administrative Agent a Guarantee;
(g) Celestica shall have executed and delivered to the Administrative
Agent a Guarantee of the monetary Obligations of Celestica
International;
(h) any Borrower which intends to make a Drawdown shall have given the
appropriate Drawdown Notice to the Administrative Agent in accordance
with the provisions of Section 2.3;
(i) opinions of Borrowers' Counsel, and local counsel to each Guarantor,
substantially in form of Schedule K, shall have been delivered to the
Administrative Agent;
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(j) none of the undertaking, property or assets of the Borrowers or any of
the Restricted Subsidiaries shall be subject to any Liens other than
(i) Permitted Encumbrances or (ii) Liens with respect to which the
Administrative Agent shall have received satisfactory evidence of the
repayment of the underlying obligation and fully executed discharges
and releases thereof and Celestica and each of the Restricted
Subsidiaries shall have delivered to the Administrative Agent a
Permitted Encumbrance Certificate; and
(k) the Borrowers shall have paid all fees and expenses relating to the
Facility provided for in this Agreement which are payable on or prior
to the first Drawdown Date.
The conditions set forth in this Section 4.1 are inserted for the sole benefit
of the Lenders and may be waived by the Administrative Agent on behalf of the
Lenders in whole or in part, with or without terms or conditions.
4.2 CONDITIONS FOR SUBSEQUENT DRAWDOWNS
The following conditions shall be satisfied by the Borrower requesting an
Advance at or prior to the time of each Drawdown of an Advance under the
Facility subsequent to the first Drawdown after the date hereof:
(a) a Borrower shall have given to the Administrative Agent a Drawdown
Notice in accordance with the provisions of Section 2.3;
(b) the representations and warranties set forth in Section 6.1 shall be,
mutatis mutandis, true and correct in all material respects on and as
of the Drawdown Date, both before and after giving effect to the
Drawdown of such Advance and to the application of proceeds therefrom,
by reference to the facts and circumstances then existing; and
(c) no Default or Event of Default shall have occurred and be continuing,
nor shall any such event occur as a result of making the Advances or
the application of proceeds therefrom on the Drawdown Date.
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ARTICLE 5
PROVISIONS RELATING TO SUBSIDIARIES
5.1 MATERIAL RESTRICTED SUBSIDIARIES TO PROVIDE GUARANTEES
(a) Each Subsidiary of Celestica which is or becomes a Material Restricted
Subsidiary shall comply with the requirements of Subsection 7.1(m).
(b) In the event that a Material Restricted Subsidiary ceases to be a
Material Restricted Subsidiary as a result of the diminution of the
value of its assets such that the aggregate value thereof does not
meet the applicable threshold set out in the definition of Material
Restricted Subsidiary under this Agreement, Celestica may request and
the Administrative Agent shall, in its reasonable discretion, release
the Guarantee executed by such Material Restricted Subsidiary.
5.2 UNRESTRICTED SUBSIDIARIES
Celestica may, from time to time and at any time hereafter, designate any
Subsidiary as an Unrestricted Subsidiary so long as:
(a) (i) such Subsidiary shall not be a Subsidiary existing as at the date
of this Agreement; and (ii) such Subsidiary shall never have been a
Restricted Subsidiary;
(b) neither Celestica nor any of its Subsidiaries (other than Unrestricted
Subsidiaries) shall be liable, contingently or otherwise, for any
indebtedness or other liability or obligation of the Unrestricted
Subsidiary, except for guarantees provided by the immediate parent of
such Unrestricted Subsidiary in respect of indebtedness of such
Unrestricted Subsidiary, where such guarantees are:
(i) made solely for the purpose of facilitating a pledge by the
guarantor of Shares of such Unrestricted Subsidiary; and
(ii) the recourse under such guarantees are limited to such pledged
Shares; and
(c) neither Celestica nor any of its Restricted Subsidiaries shall have
applied the proceeds of any Advance under the Facility to fund the
equity of, or otherwise capitalize the Unrestricted Subsidiary;
Provided that an Event of Default has not occurred and is not continuing,
Celestica may from time to time and at any time hereafter, designate an
Unrestricted Subsidiary as a Restricted Subsidiary provided that:
(i) immediately upon giving effect to such designation, Celestica
shall remain in compliance with all covenants set out in
Section 7.3 on a pro-forma (four quarter) basis; and
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(ii) the designation of such Unrestricted Subsidiary as a
Restricted Subsidiary would not otherwise result in the
occurrence of a Default or an Event of Default.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants as follows to the Administrative Agent and
the Lenders and acknowledges and confirms that the Administrative Agent and the
Lenders are relying upon such representations and warranties:
(a) ORGANIZATION, ETC. Each Obligor is validly organized and existing and
in good standing under the laws of the jurisdiction of its
incorporation or creation, is duly qualified to do business and is
qualified as a foreign corporation, company or other entity in each
jurisdiction where the nature of its business requires such
qualification, except where the failure to be so qualified would not
reasonably be likely to have Material Adverse Effect, and has full
power and authority and holds all requisite governmental licences,
permits and other approvals to enter into and perform its obligations
under the Loan Documents to which it is a party and except where
failure to hold such licenses, permits or approvals would not
reasonably be likely to have a Material Adverse Effect to own or hold
under lease its property and to conduct its business substantially as
currently conducted by it.
(b) VALIDITY, ETC. Each Obligor has duly executed and delivered each Loan
Document to which it is a party and each such Loan Document
constitutes a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms.
(c) DUE AUTHORIZATION, NON-CONTRAVENTION ETC. The execution, delivery and
performance by each Obligor of each Loan Document to which it is a
party are within its corporate powers, have been duly authorized by
all necessary corporate action by it, and do not
(i) contravene its Organic Documents;
(ii) contravene any Applicable Law or contractual restriction;
(iii) result in, or require the creation or imposition of, any Lien
on any of its properties.
(d) GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or approval or
other action by, and no consent from, notice to or filing with, any
Official Body or other Person is required for the due execution,
delivery or performance by any Obligor
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of any Loan Document to which it is a party or in order to render any
such Loan Document legal, valid, binding or enforceable against such
Obligor.
(e) FINANCIAL STATEMENTS. The consolidated financial statements of
Celestica and its Subsidiaries as at December 31, 2000 fairly present
the financial condition of Celestica and its Subsidiaries as at such
date and the results of their operations for the fiscal year then
ended, in accordance with GAAP consistently applied. Since December
31, 2000 there has been no Material Adverse Change;
(f) LITIGATION, LABOUR CONTROVERSIES, ETC. There is no pending or, to the
knowledge of Celestica and the Restricted Subsidiaries, threatened
litigation, action, proceeding, or labour controversy affecting
Celestica or any of the Restricted Subsidiaries, or any of their
respective properties, businesses, assets or revenues, which would
reasonably be likely to have a Material Adverse Effect or purports to
affect the legality, validity or enforceability of any Loan Document.
(g) LICENCES, ETC. AND COMPLIANCE WITH LAWS. All material licences,
franchises, certificates, consents, rights, approvals, authorizations,
registrations, orders and permits required under Applicable Law (other
than Environmental Laws) to enable each of the Borrowers and each
Restricted Subsidiary to carry on their respective businesses as now
conducted by them and to own or lease their respective properties have
been duly obtained and are currently subsisting. Each of the Borrowers
and each Restricted Subsidiary have complied in all material respects
with the terms and provisions presently required to be complied with
by them in all such material licences, franchises, certificates,
consents, rights, approvals, authorizations, registrations, orders and
permits and with Applicable Law (other than Environmental Laws) and
are not in violation of any of the respective provisions thereof if
such non-compliance or violation would reasonably be likely to have a
Material Adverse Effect.
(h) COMPLIANCE WITH ENVIRONMENTAL LAWS. Each of the Borrowers and the
Subsidiaries and all facilities and property now or formerly owned,
operated or leased by them:
(i) are and have been in compliance with all Environmental Laws,
including, without limitation, with respect to the release,
spill, leak, pumping, pouring, emptying, injection, escape,
leaching, dumping, spraying, burial, abandonment,
incineration, seepage, placement, emission, deposit, issuance,
discharge, transportation or disposal ("Release") of any
Hazardous Material in or over the water, atmosphere or soil
other than for non-compliance with Environmental Laws which
would not reasonably be likely to have a Material Adverse
Effect;
(ii) have no contingent liabilities in connection with any Release
or likely Release of Hazardous Materials and have not Released
or caused or permitted the Release of Hazardous Materials, and
have no knowledge of
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Releases by others, at, on or under any property now or
previously owned, operated or leased by the Celestica and its
Material Restricted Subsidiaries that, with respect to any of
the foregoing, singly or in the aggregate, would reasonably be
likely to have a Material Adverse Effect;
(iii) have not received notice of and are not aware of any pending
or threatened claims, complaints, notices, orders, directions,
instructions or requests for information with respect to any
alleged violation of or potential liability under any
Environmental Law which would reasonably be likely to have a
Material Adverse Effect;
(iv) have been issued and are in compliance with all permits,
certificates, approvals, licences and other authorizations
relating to environmental matters and necessary or desirable
for the Business other than for any such non-issuances and
non-compliances which would not reasonably be likely to have a
Material Adverse Effect and each such permit, certificate,
approval, licence or other authorization the absence of which
would reasonably be likely to have a Material Adverse Effect
is in good standing and there are no proceedings pending or,
to the knowledge of the Borrowers, threatened to revoke, amend
or limit in any material respect any such permit, certificate,
approval, licence or other authorization;
(v) have no underground storage tanks, active or, to the knowledge
of the Borrowers, abandoned, including petroleum storage
tanks, on or under any such property that, singly or in the
aggregate, would reasonably be likely to have a Material
Adverse Effect;
(vi) have not directly transported or directly arranged for the
transportation of any Hazardous Substances in violation of
Environmental Laws or to any location which would reasonably
be likely to lead to claims against them for any remedial
work, damage to the environment or natural resources or
personal injury, including claims under CERCLA, which in any
such case would reasonably be likely to have a Material
Adverse Effect;
(vii) have no polychlorinated biphenyls or friable asbestos present
at any such property that, singly or in the aggregate, would
reasonably be likely to have a Material Adverse Effect;
(viii) have no conditions which exist at, on or under any such
property which, with or without the passage of time, or the
giving of notice or both, would give rise to liability under
any Environmental Laws which would reasonably be likely to
have a Material Adverse Effect; and
(ix) is not listed or proposed for listing on the National
Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list of sites or Persons requiring investigation
or clean up where the liability imposition
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and allocation regime provided for in the applicable state
Environmental Law is similar to CERCLA, including, without
limitation, the ability of governments and other parties to
recover costs from other responsible or potentially
responsible persons, except for any such listing or proposed
listing which would not reasonably be likely to have a
Material Adverse Effect.
(i) ENCUMBRANCES. There are no Liens on any of the assets or undertaking
of the Borrowers or any Restricted Subsidiary other than Permitted
Encumbrances.
(j) NO DEFAULT OR EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
(k) ACCURACY OF INFORMATION. All factual information heretofore or
contemporaneously furnished by or on behalf of Celestica in writing to
the Administrative Agent for the purposes of or in connection with
this Agreement, including, without limitation, the final prospectus of
Celestica dated May 23, 2001, is true and accurate in every material
respect on the date as of which such information is dated or certified
and as of the date of execution and delivery of this Agreement, and
such information is not incomplete by omitting to state any material
fact necessary to make such information not misleading.
(l) NO ACTION FOR WINDING-UP OR BANKRUPTCY. There has been no involuntary
action taken against any of the Borrowers or any Restricted Subsidiary
for any such corporation's winding-up, dissolution, liquidation,
bankruptcy, receivership, administration or similar or analogous
events in respect of such corporation or all or any material part of
its assets or revenues.
(m) TAXES. Each Borrower and each of its Subsidiaries have duly filed on a
timely basis all tax returns required to be filed by them except where
such failure to file would not reasonably be likely to have a Material
Adverse Effect and have paid all Taxes which are due and payable by
them, and all assessments and re-assessments, and all other Taxes,
governmental charges, governmental royalties, penalties, interest and
fines claimed against them, other than those for which liability is
being contested by them in good faith by appropriate proceedings and
for which adequate provision has been made where required in
accordance with GAAP or in respect of which such failure to pay would
not reasonably be likely to have a Material Adverse Effect, and all
required instalment payments have been made in respect of Taxes
payable for the current period for which returns are not yet required
to be filed except where such failure to pay would not reasonably be
likely to have a Material Adverse Effect; there are no agreements,
waivers or other arrangements providing for an extension of time with
respect of the filing of any tax returns by them or the payment of any
Taxes except where such agreements, waivers or other arrangements
would not reasonably be likely to have a Material Adverse Effect;
there are no actions or proceedings to be taken by any taxation
authority of any jurisdiction to enforce the payment of any Taxes by
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them other than those which are being contested by them in good faith
by appropriate proceedings and which proceedings have been stayed for
the duration of such contestation.
(n) PENSION PLANS. Except as would not be reasonably likely to have a
Material Adverse Effect, (i) all Pension Plans are duly established,
registered, qualified, administered and invested in compliance with
the terms thereof, any applicable collective agreements and Applicable
Law; (ii) no events have occurred and no action has been taken by any
Person which would reasonably be likely to result in the termination
or partial termination of any Pension Plan, whether by declaration of
any Superintendent of Pensions or otherwise; (iii) none of the
Borrowers have withdrawn any assets held in respect of any Pension
Plan except as permitted under the terms thereof and Applicable Laws;
(iv) no Pension Plan has a "SOLVENCY DEFICIENCY" or "GOING CONCERN
UNFUNDED LIABILITY" as defined in the Pension Benefits Act (Ontario)
and the regulations enacted thereunder, as amended; (v) all
contributions, premiums and other payments required to be paid to or
in respect of each Pension Plan have been paid in a timely fashion in
accordance with the terms thereof and Applicable Law and no taxes,
penalties or fees are owing or exigible in respect of any Pension
Plan; and (vi) no actions, suits, claims, or proceedings are pending
or, to the knowledge of the Borrower, threatened in respect of any
Pension Plan or its assets, other than routine claims for benefits.
For the purposes of this section, "APPLICABLE LAW" shall include any
federal or provincial pension benefits legislation and the Income Tax
Act (Canada).
(o) REGULATIONS U AND X. No Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying margin
stock. None of the proceeds from the Facility will be used for the
purpose of purchasing or carrying directly or indirectly margin stock
or for any other purpose that would constitute this transaction a
"Purpose Credit" within the meaning of Regulations U and X of the
Board of Governors of the Federal Reserves System, as any of them may
be amended from time to time.
(p) INVESTMENT COMPANY ACT. No Obligor is an investment company within the
meaning of the United States Investment Company Act of 1940.
(q) PUBLIC UTILITY HOLDING COMPANY ACT. No Obligor is an "affiliate" or a
"subsidiary company" of a "public utility company" for a "holding
company" or an "affiliate" or a "subsidiary company" of a "public
utility company" as such terms are defined in the United States Public
Utility Holding Company Act of 1935.
6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Article 6 and in any Loan
Document shall survive the execution and delivery of this Agreement and the
making of any Advances to the
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Borrowers, notwithstanding any investigations or examinations which may be made
by the Administrative Agent or any Lender or any counsel to any of them.
6.3 DEEMED REPETITION OF REPRESENTATIONS AND WARRANTIES
Each of the representations set out in Section 6.1 shall be true and correct in
all material respects and shall be deemed to be given on the occurrence of the
Drawdown, Conversion or Rollover of an Advance, in each case by reference to the
facts and circumstances existing on the date of such Drawdown, Conversion or
Rollover.
ARTICLE 7
COVENANTS
7.1 AFFIRMATIVE COVENANTS
Celestica covenants and agrees with each of the Lenders that, unless the
Majority Lenders otherwise consent in writing, so long as any amount payable
hereunder or under the Loan Documents is outstanding or any of the Lenders has
any Commitment hereunder:
(a) FINANCIAL REPORTING. Celestica shall deliver to the Administrative
Agent, with sufficient copies for distribution to each of the
Administrative Agent and each of the Lenders:
(i) within 60 days after the end of each of its fiscal quarters in
each fiscal year, commencing with the fiscal quarter ending
September 30, 2001, the unaudited financial statements of
Celestica on a consolidated basis, each consisting of a
balance sheet, statement of income and statement (in the form
customarily prepared by Celestica for internal reporting
purposes) of changes in financial position as at the end of
such fiscal quarter and for the period commencing with the end
of the previous fiscal quarter and ending with the end of such
fiscal quarter, together with the figures for the year-to-date
and setting forth, in each case, in comparative form to the
figures for the corresponding fiscal quarter of the previous
fiscal year;
(ii) within 120 days after the end of each fiscal year of
Celestica, the audited consolidated financial statements of
Celestica for such year setting forth the corresponding
figures for the previous fiscal year in comparative form,
together with the report thereon of an independent auditor of
recognized national standing, each consisting of a balance
sheet, statement of income and statement of changes in
financial position;
(iii) within 60 days after the end of each fiscal quarter of
Celestica in each fiscal year, commencing with the fiscal
quarter ending September 30, 2001, an Officer's Certificate of
Celestica substantially in the form of Schedule D stating
that:
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(A) Celestica is in compliance with the covenants set forth
in this Article 7 and that no Default or Event of
Default has occurred and is continuing (or specifying
such non-compliance or Default or Event of Default and
stating what action, if any, Celestica is taking or is
causing to be taken in connection therewith) and
providing a calculation of the ratios referred to in
Sections 7.3(a) and (b), and a statement as to the
amount and calculation of Tangible Net Worth, Net
Funded Debt and EBITDA, in each case as at the last day
of the relevant period; and
(B) Celestica has determined that the unconsolidated assets
of all Restricted Subsidiaries which are not Material
Restricted Subsidiaries do not, or will not, after
giving effect to the Guarantees delivered by the
Restricted Subsidiaries listed in a schedule thereto,
exceed ten per cent (10%) of the consolidated assets of
the Borrowers and the Restricted Subsidiaries on the
date referenced in the most recently delivered set of
financial statements delivered pursuant to Section
7.1(a)(ii);
(iv) in the event that Celestica delivers filings other than the
financial statements referred to in clauses (i) to (iii) above
to any securities commission, stock exchange or similar
regulatory authority, such filings concurrently with the
delivery of such filings to the securities commission, stock
exchange or similar regulatory authority; and
(v) such other information respecting the condition or operations,
financial or otherwise, of Celestica or any Subsidiary (other
than an Unrestricted Subsidiary) as any Lender through the
Administrative Agent may from time to time reasonably request,
including without limitation, particulars of Advances advanced
or applied by either of the Borrowers to or for the benefit of
Celestica Italia S.r.l. or by any of Celestica's Restricted
Subsidiaries to or for the benefit of Celestica Italia S.r.l.
(b) CORPORATE STATUS. Subject to transactions undertaken in compliance
with Section 11.12, Celestica shall remain a corporation duly
incorporated and validly subsisting under the laws of the Province of
Ontario and each of the Restricted Subsidiaries shall remain validly
organized and existing and in good standing under the laws of its
jurisdiction of formation.
(c) MAINTENANCE OF BUSINESS AND PROPERTIES. Each of Celestica and each
Restricted Subsidiary shall, and shall cause each of its Subsidiaries
(except for Unrestricted Subsidiaries) to, continue its business,
maintain, preserve, protect and keep its properties in good repair,
working order and condition, reasonable wear and tear excepted, and
make necessary and proper repairs, renewals and replacements so that
its business carried on in connection therewith may be properly
conducted at
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all times unless Celestica or such Restricted Subsidiary determines
in good faith that the continued maintenance of any of its properties
is no longer desirable.
(d) NOTICE OF EVENT OF DEFAULT. Celestica shall deliver to the
Administrative Agent, forthwith upon becoming aware of any Default or
Event of Default, a certificate of an officer of Celestica specifying
such Default or Event of Default together with a statement of an
officer of Celestica setting forth details of such Default or Event of
Default and the action which has been, or is proposed to be, taken
with respect thereto.
(e) OTHER NOTIFICATIONS. Celestica shall at any time upon request of the
Administrative Agent, acting reasonably, provide to the Administrative
Agent an up to date corporate chart showing Celestica and all of its
Subsidiaries and shall promptly notify the Administrative Agent of:
(i) any change in the name or organization of any of the Borrowers
or any Material Restricted Subsidiary and of any change in the
location of the registered office or executive office of any
of them;
(ii) the non-compliance with any Environmental Law or any
environmental claim, complaint, notice or order issued to any
of the Borrowers, or any of the Subsidiaries, or any other
environmental condition or event where such non-compliance,
condition or event would reasonably be likely to have a
Material Adverse Effect. As soon as practicable thereafter,
Celestica shall advise the Administrative Agent as to the
actions which the Borrowers or any such Subsidiary intends to
take in connection with any such claim, complaint, notice or
order; and
(iii) the institution of any steps by the Borrower or any other
Person to terminate any Pension Plan which would reasonably be
likely to have a Material Adverse Effect, failure to make a
required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under Section 3.02(f) of
ERISA, the taking of any action with respect to a Pension Plan
which could reasonably be expected to result in the
requirement that a Borrower furnish a bond or other security
to the PBGC or such Pension Plan, the occurrence of any event
with respect any Pension Plan which would reasonably be likely
to have a Material Adverse Effect and copies of all
documentation relating thereto.
(f) COMPLIANCE WITH LAWS, ETC. Each of Celestica and the Restricted
Subsidiaries will, and will cause each of its Subsidiaries to, comply
in all material respects with Applicable Laws, such compliance to
include (without limitation) its qualification as a foreign
corporation in all jurisdictions in which such qualification is
legally required for the conduct of its business.
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(g) PAYMENT OF TAXES. The Borrowers shall, and the Borrowers shall cause
each of the Subsidiaries to, pay or cause to be paid, when due, all
Taxes including, property taxes, business taxes, social security
premiums, assessments and governmental charges or levies imposed upon
it or upon its income, sales, capital or profit or any property
belonging to it unless any such Tax, social security premiums,
assessment, charge or levy is contested by it in good faith with
adequate provision or reserve, where required by GAAP, and to withhold
and remit when due all payroll and withholding taxes.
(h) INSURANCE. Each of Celestica and the Restricted Subsidiaries will, and
will cause each of its Subsidiaries (except for Unrestricted
Subsidiaries) to, maintain or cause to be maintained insurance with
responsible insurance companies with respect to its properties and
business against such casualties and contingencies, of such types, and
in such amounts as is customary in the case for similar businesses
operating in similar geographic locations. Notwithstanding the
foregoing, Celestica and each of the Restricted Subsidiaries shall be
permitted to self-insure only where self-insurance is usual and
customary for the type of risk, and for companies in substantially the
same line of business and operating in the same geographic location as
Celestica or the Restricted Subsidiary, as applicable, and where
customary and usual reserves or provisions are taken in respect of
such self-insurance by Celestica or the Restricted Subsidiary, as
applicable. Upon request of the Administrative Agent, Celestica will
furnish to the Administrative Agent for distribution to the Lenders at
reasonable intervals a certificate of an Authorized Officer of
Celestica setting forth the nature and extent of all insurance
maintained by Celestica and the Restricted Subsidiaries in accordance
with this Section which certificate shall specify the risks for which
Celestica or any Restricted Subsidiary have self-insured and the
amount of the provisions or reserves, if any, held or made in respect
of such self-insurance.
(i) BOOKS AND RECORDS. Celestica and each Restricted Subsidiary will, and
will cause each of its Subsidiaries to, keep books and records which
accurately reflect all of its business affairs and transactions.
Celestica will permit the Administrative Agent and each Lender or any
of their respective representatives, at reasonable times and customary
intervals during normal business hours, to visit Celestica's offices
and to discuss its financial matters with Celestica's financial
officers. Upon the occurrence of and during the continuation of a
Default, Celestica and each Restricted Subsidiary shall permit the
Administrative Agent and each Lender or any of their respective
representatives at any time to visit all of its offices, to discuss
its financial matters with its officers and its independent chartered
accountant (and each of Celestica and each Restricted Subsidiary
hereby authorizes such independent chartered accountant to discuss
their financial matters with the Administrative Agent and each Lender
or its representatives whether or not any representative of Celestica
or the Restricted Subsidiary is present) and to examine (and, at the
expense of the Borrowers, photocopy extracts from) any of its books or
corporate records. The Borrowers shall pay any fees of
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such independent chartered accountant incurred in connection with the
Administrative Agent's or any Lender's exercise of its rights pursuant
to this Section.
(j) CELESTICA INTERNATIONAL TO REMAIN SUBSIDIARY. Celestica International
(or its Successor Corporation within the meaning of Section 11.12)
shall remain a directly or indirectly wholly-owned Subsidiary of
Celestica.
(k) PUNCTUAL PAYMENT. Celestica will, and will cause each Obligor to duly
and punctually pay or cause to be paid all amounts due under this
Agreement and the other Loan Documents at the dates and places, in the
currencies and in the manner provided in this Agreement and any other
Loan Documents.
(l) RATINGS MAINTENANCE. Celestica shall maintain a credit rating with the
Approved Credit Rating Agencies and shall forthwith notify the
Administrative Agent in the event that any rating by an Approved
Credit Rating Agency is downgraded or in the event that the rating of
Celestica shall have been placed under review by an Approved Credit
Rating Agency.
(m) MATERIAL RESTRICTED SUBSIDIARY GUARANTEES.
(i) Subject to clauses (ii) and (iii), Celestica shall:
(A) within 45 days of the acquisition or incorporation of a
Subsidiary which is a Restricted Subsidiary, whose
assets total greater than U.S. $150,000,000 on the date
of such acquisition or incorporation; and
(B) upon the designation of a Restricted Subsidiary as a
Material Restricted Subsidiary on the Schedule to the
Officer's Certificate delivered pursuant to Section
7.1(a)(iii) within 45 days of such delivery of the
Officer's Certificate making such designation,
cause such Material Restricted Subsidiary to (I) authorize,
execute and deliver a Guarantee to the Administrative Agent
substantially in the form of Schedule G with such changes as
the Administrative Agent and the Material Restricted
Subsidiary may necessarily require on the advice of their
respective counsel to reflect local legal requirements; (II)
deliver to the Administrative Agent certified copies of its
Organic Documents and a resolution authorizing the Guarantee,
a certificate of its officers signing the Guarantee and a
certificate of status, good standing or like certificate with
respect to it issued by appropriate government officials of
its jurisdiction of incorporation; and (III) cause to be
delivered an opinion of counsel to the newly acquired or
incorporated Material Restricted Subsidiary substantially in
the form of Schedule K, with only those changes which are
satisfactory to the Lender's Counsel.
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(ii) In the event that any Material Restricted Subsidiary is not a
wholly-owned Subsidiary of Celestica, on the later of (i) the
date of execution of a Guarantee or (ii) the date of
acquisition by any Person which is not Celestica or a
Subsidiary of Celestica of any Share of such Material
Restricted Subsidiary, Celestica shall deliver an
acknowledgement addressed by such Person to the Administrative
Agent acknowledging the Guarantee executed by such Material
Restricted Subsidiary and the enforceability thereof against
the Material Restricted Subsidiary to the full extent set out
in the Guarantee (subject to the same qualifications as set
out in the opinion of legal counsel to such Material
Restricted Subsidiary with respect to such Guarantee)
notwithstanding the ownership of Shares of the Material
Restricted Subsidiary by such Person and any agreement between
such Person and Celestica or any Subsidiary of Celestica.
(iii) The Borrowers and Guarantors shall, and the Borrowers shall
cause each of its Subsidiaries to, take all such steps and do
such things as may be necessary, in the opinion of the
Administrative Agent, to ensure the continuous enforceability
of each Guarantee granted by each Borrower and each Material
Restricted Subsidiary.
(n) ACCURACY OF INFORMATION. All factual information hereafter furnished
by or on behalf of Celestica in writing to the Administrative Agent
for the purposes of or in connection with this Agreement shall be true
and accurate in every material respect on the date as of which such
information is dated or certified and shall not be incomplete by the
omission to state any material fact necessary to make such information
not misleading.
7.2 NEGATIVE COVENANTS
Celestica covenants and agrees with each of the Lenders that, unless the
Majority Lenders otherwise consent in writing, so long as any amount payable
hereunder is outstanding or the Lenders shall have any Commitment hereunder:
(a) NO MERGER, AMALGAMATION, ETC. None of the Borrowers or any Restricted
Subsidiary shall, directly or indirectly, merge, amalgamate or enter
into any similar or other business combination pursuant to statutory
authority or otherwise with any other Person except upon compliance
with Section 11.12.
(b) RESTRICTION ON DISPOSITION OF ASSETS. None of the Borrowers or any
Restricted Subsidiary shall sell, assign, transfer, lease, convey or
otherwise dispose of any property, assets or investments, (in each
case a "sale") other than:
(i) sales made in compliance with Section 11.12; or
(ii) sales of obsolete equipment in the ordinary course of
business; or
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(iii) sales, assignments and transfers pursuant to a Permitted
Securitization Transaction; or
(iv) sale/leaseback transactions of:
(A) any real property owned by a Borrower or Restricted
Subsidiary; and
(B) any property or assets acquired by a Borrower or
Restricted Subsidiary, as the case may be, which is
completed within six months of the date on which such
property or assets were acquired, provided that any
Borrowing made to finance such acquisition shall be
repaid within two Banking Days of the completion of
such sale/leaseback transaction; or
(v) sales of Shares of any Unrestricted Subsidiary; or
(vi) sales of assets and property, including inventory, in the
ordinary course of business; or
(vii) sales of any fixed assets together with associated
intellectual property not otherwise permitted in clauses (i)
to (vi) above, subject to an aggregate limit of sales under
this clause (vii) in any fiscal year by the Borrowers and
Restricted Subsidiaries in an amount equal to 10% of the
aggregate net book value of the fixed assets plus 10% of the
aggregate net book value of intellectual property of Celestica
on a consolidated basis (the "disposition allowance") and
provided that, in any fiscal year in which the Borrowers and
Restricted Subsidiaries do not sell fixed assets and
associated intellectual property under this clause (vii)
having aggregate net book values totalling the disposition
allowance, the Borrowers and Restricted Subsidiaries may carry
forward into the following fiscal years the unused disposition
allowance, and further provided that none of the Borrowers or
Restricted Subsidiaries shall sell any intellectual property
under this clause (vii) unless such sale is incidental to a
sale of fixed assets; or
(viii) sales of assets, property or investments from a Borrower or
Restricted Subsidiary to another Borrower or Restricted
Subsidiary provided that no Borrower or Restricted Subsidiary
shall so sell assets, property or investments during the
occurrence and continuance of a Default or where such sale,
alone or as part of a series of previously or concurrently
occurring sales, would reasonably be likely to have a Material
Adverse Effect.
(c) RESTRICTION ON CERTAIN INTER-COMPANY TRANSACTIONS. Except as otherwise
permitted by this Section 7.2, none of the Borrowers or any Restricted
Subsidiary
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shall enter into any agreement or complete any transaction
with any other Borrower or any Restricted Subsidiary during the
occurrence and continuance of a Default or where such agreement or
transaction, alone or as part of a series of previously or
concurrently occurring agreements or transactions, would reasonably be
likely to have a Material Adverse Effect.
(d) NEGATIVE PLEDGE/PARI PASSU RANKING. None of the Borrowers or any of
the Restricted Subsidiaries shall create, incur, assume or permit to
exist any Lien, other than Permitted Encumbrances, on any of its
property, undertaking or assets now owned or hereafter acquired. Each
Obligor's monetary Obligations shall rank at least pari passu with all
other unsecured Indebtedness of such Obligor and no Obligor shall, or
shall agree with any other Person to, pay any other Indebtedness in
priority to payment of all monetary Obligations as and when due.
(e) RESTRICTION ON NON-ARM'S LENGTH TRANSACTIONS. The Borrowers shall not,
and shall not permit any Restricted Subsidiary to, enter into any
transaction or agreement with any Person which is not at Arm's Length
with the Borrowers or such Restricted Subsidiary (other than other
Borrowers, Restricted Subsidiaries or Unrestricted Subsidiaries)
unless,
(i) such transaction or agreement is in the ordinary course of
business and is on terms no less favourable to the Borrowers
or such Restricted Subsidiary as would be obtainable in a
comparable transaction with a Person which is at Arm's Length
with the Borrower or such Restricted Subsidiary, and
(ii) such transaction or agreement complies with the terms of
Section 7.2(c).
(f) RESTRICTION ON CHANGE OF BUSINESS. None of the Borrowers or the
Restricted Subsidiaries shall, either directly or indirectly, enter
into any business other than the Business without the prior written
consent of the Majority Lenders.
(g) NO CHANGE IN ACCOUNTING TREATMENT OR REPORTING PRACTICES. Subject to
the provisions of Section 1.7, none of the Borrowers nor any
Restricted Subsidiary shall make any material change in its accounting
or reporting or financial reporting practices, except as consistent
with GAAP or Applicable Law, which changes shall be disclosed to the
Lenders.
(h) RESTRICTIONS ON TRANSACTIONS WITH UNRESTRICTED SUBSIDIARIES. No
Borrower shall, or shall permit any Restricted Subsidiary to,
(i) sell assets or lend monies to any Unrestricted Subsidiary
unless such sale is permitted pursuant to Section 7.2(b)(vi)
and such sale or loan is in the ordinary course of business
and is on terms no less favourable to such Borrower or such
Restricted Subsidiary as would be obtainable in a comparable
transaction with a Person which is at Arm's Length with the
Borrower or such Restricted Subsidiary; or
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(ii) provide financial assistance by means of a guarantee to an
Unrestricted Subsidiary unless the financial assistance is in
the form of a guarantee granted by the immediate parent of
such Unrestricted Subsidiary, where such guarantee is (A) made
solely for the purpose of facilitating a pledge by the
guarantor of Shares of such Unrestricted Subsidiary; and (B)
the recourse thereunder is limited to the Shares of the
Unrestricted Subsidiary; and (C) a pledge of the Shares of the
Unrestricted Subsidiary.
(i) RESTRICTIONS ON TRANSACTIONS WITH CELESTICA ITALIA S.R.L. No Borrower
shall, or shall permit any Restricted Subsidiary to,
(i) invest Advances in, contribute equity to, or otherwise apply
Advances for the benefit of Celestica Italia S.r.l. except,
subject to Section 7.2(i)(ii), by loaning such Advances to
Celestica Italia S.r.l.; and
(ii) lend Advances to Celestica Italia S.r.l. where the amount of
Advances that has been advanced to or for the benefit of
Celestica Italia S.r.l. outstanding at such time would exceed
U.S.$200,000,000.
7.3 FINANCIAL COVENANTS
(a) MINIMUM TANGIBLE NET WORTH. Celestica shall maintain, at all times, a
minimum Tangible Net Worth in an amount that shall not be less than an
amount equal to the sum of U.S. $1,750,000,000, plus 50% of cumulative
annual positive Net Income commencing with the fiscal year ending
December 31, 2000 and in each subsequent fiscal year.
(b) MAXIMUM NET FUNDED DEBT: EBITDA RATIO. Celestica shall maintain a Net
Funded Debt: EBITDA ratio, calculated on a rolling four quarter basis
of not more than 3.25:1.0.
(c) CALCULATION OF FINANCIAL RATIOS. For the purposes of Sections 7.3(a)
and (b), all of the calculations shall be made on a consolidated basis
for Celestica and its Subsidiaries (but for greater certainty,
excluding Unrestricted Subsidiaries) in accordance with the provisions
of Sections 1.7 and 1.8.
ARTICLE 8
DEFAULT AND ACCELERATION
8.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events (each such event and
the expiry of the cure period, if any, provided in connection therewith, being
herein referred to as an "EVENT OF DEFAULT") shall constitute a default under
this Agreement:
(a) if a Borrower shall default in (i) the payment when due of any
principal of any Advance; (ii) the payment when due of any interest on
any Advance (and such
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default shall continue unremedied, in the case of interest, for a
period of three (3) days); or (iii) the payment when due of any fee or
any other Obligation (and any of such defaults described in item (iii)
shall continue unremedied for a period of five (5) days);
(b) any representation or warranty made or deemed to be made hereunder or
in any other Loan Document or any other writing or certificate
furnished by on behalf of an Obligor to the Administrative Agent for
the purposes of or in connection with this Agreement or any such other
Loan Document is or shall be incorrect when made in any material
respect;
(c) any Obligor shall default in the service or performance of any
agreement, covenant or condition contained herein or in any other Loan
Document (other than as set forth above) and such failure shall remain
unremedied for a period of thirty (30) days after notice in writing
has been given by the Administrative Agent to Celestica;
(d) a default shall occur in the payment when due, whether by acceleration
or otherwise, of any Indebtedness (other than as set forth in (a)
above) of any Borrower or any Restricted Subsidiary having a principal
amount, individually or in the aggregate, in excess of $50,000,000, or
a default shall occur in the performance or observance of any
obligation or condition with respect to any such Indebtedness if the
effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied and unwaived
for any applicable grace period of time sufficient to permit the
holder or holders of such Indebtedness, or any trustee or agent for
such holders, to have the right to cause such Indebtedness to become
due and payable prior to its expressed maturity;
(e) any judgment or order for the payment of money in excess of
$25,000,000, which is not covered by insurance, shall be rendered
against any Borrower or any Restricted Subsidiary and either:
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order; or
(ii) there shall be any period of 30 consecutive days during which
a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect and such
judgment shall not have been paid or otherwise satisfied;
(f) any Borrower or any Restricted Subsidiary shall:
(i) become (or be deemed by any Applicable Law to be) insolvent or
generally fail to pay, or admit in writing its inability or
unwillingness to pay its debts as they generally become due;
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(ii) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, receiver and manager, liquidator,
sequestrator, administrator or other custodian in connection
with the insolvency of a Borrower or a Restricted Subsidiary
or any property of any thereof except as permitted under
Section 11.12, or make a general assignment for the benefit of
creditors;
(iii) in the absence of an application referred to in Section
8.1(f)(ii), consent or acquiescence, permit or suffer to exist
the appointment of a trustee, receiver, receiver and manager,
liquidator, sequestrator, administrator or other custodian for
a Borrower or a Restricted Subsidiary or for a substantial
part of the property of any of them except as permitted under
Section 11.12, and such trustee, receiver, receiver and
manager, liquidator, sequestrator, administrator or other
custodian shall not be discharged within 60 days, provided
that the Borrowers hereby expressly authorize the
Administrative Agent and each Lender to appear in any court
conducting any relevant proceeding relating to any of them or
any Restricted Subsidiary during such 60-day period to
preserve, protect and defend their rights under the Loan
Documents;
(iv) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement, administration or other case
or proceeding under any bankruptcy, insolvency or similar law,
or any dissolution, winding up, administration or liquidation
proceeding, in respect of any Borrower or any Restricted
Subsidiary (except as permitted under Section 11.12), and, if
any such case or proceeding is not commenced by such Borrower
or such Restricted Subsidiary, such case or proceeding shall
be consented to or acquiesced in by such Borrower or such
Restricted Subsidiary or shall result in the entry of an order
for relief or shall remain for 60 days undismissed, provided
that each Borrower and each Restricted Subsidiary is hereby
deemed to expressly authorize the Administrative Agent and
each Lender to appear in any court conducting any such case or
proceeding relating to any of them or any Restricted
Subsidiary during such 60-day period to preserve, protect and
defend their rights under the Loan Documents; or
(v) take any corporate action authorizing, or in furtherance of,
any of the matters referred to in clauses (ii), (iii) or (iv)
above;
(g) Onex Corporation shall cease to control Celestica unless the shares of
Celestica become widely held such that no one Person or group of
Persons acting jointly or in concert (within the meaning of Part XX of
the Securities Act (Ontario)) controls Celestica, provided that any
Person or group of Persons acting jointly or in concert which owns or
controls securities of Celestica to which are attached more than 20%
of the votes that may be cast to elect the directors of Celestica
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shall, in the absence of evidence satisfactory to the Administrative
Agent, acting reasonably, be deemed to control Celestica;
(h) any Loan Document shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or cease to be the
legally valid, binding and enforceable obligation of any Obligor that
is a party thereto; or any Obligor shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability of any Loan Document;
(i) any Borrower or any governmental authority declares, orders or
proposes to order a full or partial wind up of any Pension Plan which,
in either case, would reasonably be likely to have a Material Adverse
Effect or if any of the following events shall occur with respect to a
Pension Plan:
(i) the institution of any step by a Borrower, any member of its
Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, the Borrowers or any
such member of its Controlled Group would reasonably be likely
to be required to make a contribution to such Pension Plan or
could reasonably expect to incur a liability or obligation to
such Pension Plan which, in either case, would reasonably be
likely to have a Material Adverse Effect; or
(ii) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of
ERISA.
8.2 ACCELERATION
Upon the occurrence of an Event of Default (other than as set forth in Section
8.1(f) or (g)) and at any time thereafter while an Event of Default is
continuing, the Administrative Agent may, in consultation with the Lenders (and,
if so instructed by the Majority Lenders, shall) by written notice to the
Borrowers:
(a) declare the Advances made to the Borrowers to be immediately due and
payable (whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the Borrowers
hereunder or under any other Loan Document) or declare such Advances
to be due and payable on demand of the Administrative Agent; and/or
(b) if not theretofore terminated, declare that all of the Commitments
shall be cancelled, whereupon the same shall be cancelled and the
Commitment of each Lender shall be reduced to zero.
If, pursuant to this Section 8.2, the Administrative Agent declares any Advances
made to the Borrowers to be due and payable on demand, then, and at any time
thereafter, the Administrative Agent may (and, if so instructed by the Majority
Lenders, shall) by written notice to the Borrowers call for repayment of such
Advances on such date or dates as it may specify in such
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notice (whereupon the same shall become due and payable on such date together
with accrued interest thereon and any other sums then owed by the Borrowers
hereunder or under any other Loan Document and the provisions of Section 8.4
shall apply) or withdraw its declaration with effect from such date as it may
specify in such notice.
Upon the occurrence of an Event of Default set forth in Section 8.1(f) or (g),
the Commitments shall automatically terminate and the outstanding principal
amount of all outstanding Advances (together with accrued interest thereon and
any other sums then owed by the Borrowers hereunder or under any other Loan
Document and the provisions of Section 8.4 shall apply) shall automatically be
and become immediately due and payable, without notice or demand.
8.3 REMEDIES CUMULATIVE AND WAIVERS
It is expressly understood and agreed that the rights and remedies of the
Lenders, the Administrative Agent and each of them hereunder or under any other
Loan Document or other instrument executed pursuant to this Agreement are
cumulative and are in addition to and not in substitution for any rights or
remedies provided by law or by equity; and any single or partial exercise by the
Lenders, the Administrative Agent or any of them of any right or remedy for a
default or breach of any term, covenant, condition or agreement contained in
this Agreement or any other Loan Document shall not be deemed to be a waiver of
or to alter, affect or prejudice any other right or remedy or other rights or
remedies to which the Lenders, the Administrative Agent or any of them may be
lawfully entitled for such default or breach. Any waiver by the Lenders, the
Administrative Agent or any of them of the strict observance, performance or
compliance with any term, covenant, condition or other matter contained herein
or in any other Loan Document and any indulgence granted, either expressly or by
course of conduct, by the Lenders, the Administrative Agent or any of them shall
be effective only in the specific instance and for the purpose for which it was
given and shall be deemed not to be a waiver of any rights and remedies of the
Lenders, the Administrative Agent or any of them under this Agreement or any
other Loan Document as a result of any other default or breach hereunder or
thereunder.
8.4 SUSPENSION OF LENDERS' OBLIGATIONS
Without prejudice to the rights which arise out of this Agreement or by law, the
occurrence of an Event of Default shall, while such Event of Default shall be
continuing, relieve the Lenders of all obligations to make any Advances
hereunder (whether or not any Drawdown Notice in respect of any such Advance
shall have been received by the Administrative Agent prior to the occurrence of
an Event of Default) or to accept or comply with any Drawdown Notice, Conversion
Notice or Rollover Notice.
8.5 APPLICATION OF PAYMENTS AFTER AN EVENT OF DEFAULT
If any Event of Default shall occur and be continuing, all payments made by the
Borrowers hereunder or payments made pursuant to any of the provisions of any of
the Guarantees shall be applied in the following order:
(a) to amounts due hereunder as costs and expenses of the Administrative
Agent;
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(b) to amounts due hereunder as costs and expenses of the Lenders;
(c) to amounts due hereunder as fees;
(d) to any other amounts (other than amounts in respect of interest or
principal) due hereunder;
(e) to amounts due hereunder as interest; and
(f) to amounts due hereunder as principal.
ARTICLE 9
THE ADMINISTRATIVE AGENT AND
ADMINISTRATION OF THE FACILITY
9.1 AUTHORIZATION OF ACTION
Each Lender hereby irrevocably appoints and authorizes the Administrative Agent
to be its Agent in its name and on its behalf and to exercise such rights or
powers granted to the Administrative Agent under this Agreement and the Loan
Documents to the extent specifically provided herein and therein and on the
terms hereof and thereof, together with such rights, powers and discretions as
are reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement or the Loan Documents, the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders; provided, however, that no Agent
shall be required to take any action which exposes Agent to liability in such
capacity, which could result in the Administrative Agent incurring any costs and
expenses or which is contrary to this Agreement or Applicable Law.
9.2 PROCEDURE FOR MAKING ADVANCES
(a) The Administrative Agent shall make Advances available to the relevant
Borrowers as required hereunder by debiting the account of the
Administrative Agent to which the Lenders' Main Facility Rateable
Portions of such Advances have been credited in accordance with
Section 9.2(b) (or causing such account to be debited) and, in the
absence of other arrangements agreed to by the Administrative Agent
and Celestica in writing, by transferring (or causing to be
transferred) like funds in accordance with the instructions of the
Borrower as set forth in the Drawdown Notice in respect of each
Advance; provided that the obligation of the Administrative Agent
hereunder shall be limited to taking such steps as are commercially
reasonable to implement such instructions, which steps once taken
shall constitute conclusive and binding evidence that such funds were
advanced hereunder in accordance with the provisions relating thereto
and the Administrative Agent shall not be liable for any damages,
claims or costs which may be suffered by the Borrower and occasioned
by the failure of such Advance
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to reach the designated destination, except to the extent such
damages, claims or costs are the result of the gross negligence or
wilful misconduct of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Lender on the
Banking Day prior to the Drawdown Date requested by a Borrower that
such Lender will not make available to the Administrative Agent its
Main Facility Rateable Portion of such Advance, the Administrative
Agent may assume that such Lender has made such portion of the Advance
available to the Administrative Agent on the Drawdown Date in
accordance with the provisions hereof and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If and to the extent such Lender
shall not have so made its Main Facility Rateable Portion of the
Advance available to the Administrative Agent, then such Lender shall
pay to the Administrative Agent forthwith on demand such Lender's Main
Facility Rateable Portion of the Advance and all reasonable costs and
expenses incurred by the Administrative Agent in connection therewith
together with interest thereon (at the rate payable thereunder by the
Borrower in respect of such Advance) for each day from the date such
amount is made available to the Borrower until the date such amount is
paid to the Administrative Agent; provided, however, that
notwithstanding such obligation, if such Lender fails to so pay, the
Borrower covenants and agrees that without prejudice to any rights
such Borrower may have against such Lender, it shall reimburse such
amount to the Administrative Agent forthwith after demand therefor by
the Administrative Agent. The amount payable to the Administrative
Agent pursuant hereto shall be as set forth in a certificate delivered
by the Administrative Agent to such Lender and such Borrower (which
certificate shall contain reasonable details of how the amount payable
is calculated) and shall be conclusive and binding, for all purposes,
in the absence of manifest error. If such Lender makes the payment to
the Administrative Agent required herein, such Lender shall be
considered to have made its Main Facility Rateable Portion of the
Advance for purposes of this Agreement and the Administrative Agent
shall make appropriate entries in the books of account maintained by
the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion
of any Advance shall not relieve any other Lender of its obligation,
if any, hereunder to make its Main Facility Rateable Portion of such
Advance on the Drawdown Date, but no Lender shall be responsible for
the failure of any other Lender to make the Main Facility Rateable
Portion of the Advance to be made by such other Lender on the date of
any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance
under the Facility are to occur on the same day, the Administrative
Agent shall not make available to the relevant Borrower the amount of
the Advance to be drawn down until the Administrative Agent is
satisfied that it has received irrevocable and irreversible payment of
the amount to be prepaid or repaid. Notwithstanding the
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foregoing, in the absence of gross negligence or wilful misconduct on
the part of the Administrative Agent, the risk of non-receipt of the
amount to be repaid is that of the Lenders and not of the
Administrative Agent.
(e) This Section 9.2 shall not apply to Swing Line Advances.
9.3 REMITTANCE OF PAYMENTS
Forthwith after receipt of any repayment of principal or payment of interest or
fees pursuant to any provision of this Agreement, the Administrative Agent which
has received such repayment or payment shall remit to each Lender its Main
Facility Rateable Portion thereof; provided, however, that the Administrative
Agent shall be entitled to set off against and deduct from any amount payable to
a Lender any outstanding amounts payable by such Lender to the Administrative
Agent pursuant to Section 9.2(b). Forthwith after receipt of any payment of
Facility Fees pursuant to Section 2.11, the Administrative Agent shall remit to
each Lender its Main Facility Rateable Portion of such payment. If the
Administrative Agent, on the assumption that it will receive on any particular
date a payment of principal, interest or fees hereunder, remits such payment to
the Lenders and the Borrowers fail to make such payment, each of the Lenders
agrees to repay to the Administrative Agent forthwith on demand the amount
received by it together with all reasonable costs and expenses incurred by the
Administrative Agent in connection therewith to the extent not reimbursed by the
Borrower and interest thereon at the rate and calculated in the manner
applicable to the Advance in respect of which such payment was made for each day
from the date such amount is remitted to the Lenders, the exact amount of the
repayment required to be made by the Lenders pursuant hereto to be as set forth
in a certificate delivered by the Administrative Agent to each Lender, which
certificate shall be conclusive and binding for all purposes in the absence of
manifest error. The Administrative Agent shall make appropriate entries in the
register maintained by it to reflect the foregoing.
9.4 REDISTRIBUTION OF PAYMENT
(a) If any Lender receives or recovers (whether by payment or combination
of accounts or otherwise) an amount owed to it by a Borrower under
this Agreement otherwise than through the Administrative Agent, then
such Lender shall, within two Banking Days following such receipt or
recovery, notify the Administrative Agent (who shall in turn notify
the other Lenders) of such fact.
(b) Subject to the other terms and conditions of this Agreement, if at any
time the proportion which any Lender (a "Recovering Lender") has
received or recovered (whether by payment or combination of accounts
or otherwise) in respect of its portion of any payment to be made
under this Agreement by a Borrower for the account of such Recovering
Lender and one or more other Lenders is greater (the amount of the
excess being herein called the "excess amount") than the proportion
thereof received or recovered by the Lender or Lenders receiving or
recovering the smallest proportion thereof, then:
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(i) the Recovering Lender shall, within two Banking Days following
such receipt or recovery, pay to the Administrative Agent an
amount equal to the excess amount; and
(ii) the Administrative Agent shall treat the amount received by it
from the Recovering Lender pursuant to paragraph (i) above as
if such amount had been received by it from such Borrower
pursuant to its obligations under this Agreement and shall pay
the same to the Persons entitled thereto (including such
Recovering Lender) pro rata to their respective entitlements
thereto in which event, for all purposes in connection
herewith, the Recovering Lender shall be deemed only to have
received or recovered from such Borrower that portion of the
excess amount which is actually paid to the Recovering Lender
by the Administrative Agent pursuant to this Section
9.4(b)(ii).
(c) If a Lender that has paid an excess amount to the Administrative Agent
in accordance with Section 9.4(b)(i) is required to refund the whole
(or a portion) of such excess amount to the Borrower, then each of the
other Lenders shall pay to the Administrative Agent for the account of
that Lender the whole (or that proportion) of the amount received by
it as a result of the distribution in respect of that excess amount
made by the Administrative Agent pursuant to Section 9.4(b)(ii).
9.5 DUTIES AND OBLIGATIONS
(a) Neither the Administrative Agent nor any of its directors, officers,
agents or employees (and, for purposes hereof, the Administrative
Agent shall be deemed to be contracting for and on behalf of such
Persons) shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement except for
its or their own gross negligence or wilful misconduct. Without
limiting the generality of the foregoing, the Administrative Agent:
(i) may assume that there has been no assignment or transfer by
any means by any Lender of its rights hereunder, unless and
until the Administrative Agent has received a duly completed
and executed assignment in form satisfactory to it;
(ii) may consult with legal counsel (including the Lenders'
Counsel), independent public accountants and other experts of
reputable standing selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
experts;
(iii) shall incur no liability under or in respect of this Agreement
by acting upon any notice, consent, certificate or other
instrument or writing believed by it to be genuine and signed
or sent by the proper party or
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parties or by acting upon any representation or warranty of
the Borrowers or any Guarantor made or deemed to be made
hereunder;
(iv) may assume that no Event of Default has occurred and is
continuing unless an appropriate officer charged with the
administration of this Agreement has actual notice or
knowledge to the contrary;
(v) may rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any Person upon a
certificate signed by or on behalf of such Person; and
(vi) shall incur no liability for its failure to distribute to any
Lender the financial statements or other information provided
to the Administrative Agent by the Borrowers or any Guarantor.
Further, the Administrative Agent (a) shall not have any duty to
ascertain or to enquire as to the performance or observance of any
of the terms, covenants or conditions of this Agreement on the part
of any of the Borrowers or any Guarantor or to inspect the property
(including the books and records) of any of the Borrowers or any
Guarantor and (b) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any instrument or document
furnished pursuant hereto.
(b) The Administrative Agent makes no warranty or representation to any
Lender nor shall the Administrative Agent be responsible to any Lender
for the accuracy or completeness of the data made available to any of
the Lenders in connection with the negotiation of this Agreement, or
for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement.
(c) Except as otherwise provided for herein, the Administrative Agent may,
but is not obligated to, seek the approval of the Majority Lenders to
any consents required to be given by the Administrative Agent
hereunder.
9.6 PROMPT NOTICE TO THE LENDERS
Subject to the provisions of Section 9.5(a)(vi), the Administrative Agent agrees
to provide to the Lenders, copies where appropriate, of all information, notices
and reports required to be given to the Administrative Agent by the Borrowers
and the Guarantors hereunder or pursuant to any other Loan Document, promptly
upon receipt of same, excepting therefrom information and notices relating
solely to the role of the Administrative Agent hereunder.
9.7 AGENT'S AUTHORITY
With respect to its Commitment and the Advances made by it as a Lender, the
Administrative Agent shall have the same rights and powers under this Agreement
as any other Lender and may
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exercise the same as though they were not Agents. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrowers and the Subsidiaries or any corporation or other
entity owned or controlled by any of them and any Person which may do business
with any of them, all as if the Administrative Agent was not the Administrative
Agent hereunder and without any duties to account therefor to the Lenders.
9.8 LENDER'S INDEPENDENT CREDIT DECISION
It is understood and agreed by each Lender that it has itself been, and will
continue to be, solely responsible for making its own independent appraisal of
and investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of the Borrowers and its Subsidiaries. Accordingly,
each Lender confirms with the Administrative Agent that it has not relied, and
will not hereafter rely, on the Administrative Agent (i) to check or enquire on
its behalf into the adequacy, accuracy or completeness of any information
provided by the Borrowers or any other Person under or in connection with this
Agreement, the other Loan Documents or the transactions herein or therein
contemplated (whether or not such information has been or is hereafter
distributed to such Lender by the Administrative Agent), or (ii) to assess or
keep under review on its behalf the financial condition, creditworthiness,
condition, affairs, status or nature of the Borrowers or any Subsidiary. Each
Lender acknowledges that a copy of this Agreement has been made available to it
for review and each Lender acknowledges that it is satisfied with the form and
substance of this Agreement.
9.9 INDEMNIFICATION
Each Lender hereby agrees to indemnify the Administrative Agent (to the extent
not reimbursed by the Borrowers) in its Global Rateable Portion, from and
against any and all liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent (in its capacity as agent for the Lenders) in any way
relating to or arising out of this Agreement or any other Loan Documents or any
action taken or admitted by the Administrative Agent under or in respect of this
Agreement or any other Loan Documents; provided that no Lender shall be liable
for any portion of such liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's gross negligence or wilful misconduct. Without limiting
the generality of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand in the proportion specified herein in
respect of any out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the preservation of any rights of Agents
or the Lenders under, or the enforcement of, or legal advice in respect of the
rights or responsibilities under, this Agreement or any other Loan Documents, to
the extent that the Administrative Agent is not reimbursed for such expenses by
the Borrowers.
9.10 SUCCESSOR AGENT
The Administrative Agent may, as hereinafter provided, resign at any time by
giving not less than 30 days' written notice thereof to the Lenders and the
Borrowers. The Administrative Agent may, as hereinafter provided, be removed at
any time on not less than 30 days' written
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notice thereof by the Majority Lenders provided that the Majority Lenders have
designated a successor who is prepared to act hereunder and which is acceptable
to Celestica, acting reasonably. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor agent (the
"Successor Agent") which shall be a Lender and which shall be acceptable to the
Borrowers, acting reasonably. In the event that Scotiabank resigns or is removed
from its role as Administrative Agent hereunder, Scotiabank and each of its
branches, Affiliates and Subsidiaries, as applicable, shall be deemed to have
resigned or been removed from its role as Administrative Agent as at the same
effective date. Upon the acceptance of any appointment hereunder by a Successor
Agent, such Successor Agent shall thereupon become Administrative Agent
hereunder and shall succeed to and become vested with all the rights, powers,
privileges and duties of Scotiabank and Scotiabank shall thereupon be discharged
from its further duties and obligations as Administrative Agent under this
Agreement. After any resignation or removal of Scotiabank under this Section
9.10, the provisions of this Article 9 shall continue to enure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent hereunder.
9.11 TAKING AND ENFORCEMENT OF REMEDIES
(a) Each of the Lenders hereby acknowledges that, to the extent permitted
by Applicable Law, the remedies provided hereunder to the Lenders are
for the benefit of the Lenders collectively and acting together and
not severally and further acknowledges that its rights hereunder are
to be exercised not severally, but collectively by the Administrative
Agent upon the decision of the Lenders regardless of whether
declaration or acceleration was made pursuant to Section 8.2;
accordingly, notwithstanding any of the provisions contained herein,
each of the Lenders hereby covenants and agrees that it shall not be
entitled to take any action with respect to the Facility, including,
without limitation, any declaration or acceleration under Section 8.2,
but that any such action shall be taken only by the Administrative
Agent with the prior written consent of the Lenders or the Majority
Lenders, as applicable, provided that, notwithstanding the foregoing:
(i) in the absence of instructions from the Lenders or from the
Majority Lenders, as applicable, and where in the sole opinion
of the Administrative Agent the exigencies of the situation
warrant such action, the Administrative Agent may without
notice to or consent of the Lenders take such action on behalf
of the Lenders as it deems appropriate or desirable in the
interest of the Lenders; and
(ii) the commencement of litigation before any court shall be made
in the name of each Lender individually unless the laws of the
jurisdiction of such court permit such litigation to be
commenced in the name of the Administrative Agent on behalf of
the Lenders (whether pursuant to a specific power of attorney
in favour of the Administrative Agent or otherwise) and the
Administrative Agent agrees to commence such litigation in its
name;
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each of the Lenders hereby further covenants and agrees that upon any
such written consent being given by the Lenders or the Majority
Lenders, as applicable, they shall co-operate fully with the
Administrative Agent to the extent requested by the Administrative
Agent in the collective realization including, without limitation,
the appointment of a receiver and manager to act for their collective
benefit; and each Lender covenants and agrees to do all acts and
things and to make, execute and deliver all agreements and other
instruments, including, without limitation, any instruments necessary
to effect any registrations, so as to fully carry out the intent and
purpose of this Section 9.11; and each of the Lenders hereby covenants
and agrees that it has not heretofore and shall not seek, take, accept
or receive any security for any of the obligations and liabilities of
the Borrowers or any Guarantor hereunder or under any other document,
instrument, writing or agreement ancillary hereto and shall not enter
into any agreement with any of the parties hereto or thereto relating
in any manner whatsoever to the Facility, unless all of the Lenders
shall at the same time obtain the benefit of any such agreement.
(b) Notwithstanding any other provision contained in this Agreement, no
Lender shall be required to be joined as a party to any litigation
commenced against the Borrowers or any Guarantor by the Administrative
Agent or the Majority Lenders hereunder (unless otherwise required by
any court of competent jurisdiction) if it elects not to be so joined
in which event any such litigation shall not include claims in respect
of the rights of such Lender against the Borrowers and the Guarantors
hereunder until such time as such Lender does elect to be so joined;
provided that if at the time of such subsequent election it is not
possible or practicable for such Lender to be so joined, then such
Lender may commence proceedings in its own name in respect of its
rights against the Borrowers and the Guarantors hereunder.
9.12 RELIANCE UPON LENDERS
The Administrative Agent shall be entitled to rely upon any certificate, notice
or other document provided to it by a Lender on behalf of all financial
institutions and Affiliates which together constitute a Lender pursuant to this
Agreement and the Administrative Agent shall be entitled to deal with the
Lenders with respect to the matters under this Agreement which are the
Administrative Agent's responsibilities without any liability whatsoever to the
Lenders for relying upon any certificate, notice or other document provided to
it by such Lender notwithstanding any lack of authority of the Lender to provide
the same or to bind the other financial institutions and Affiliates which
together constitute a Lender.
9.13 RELIANCE UPON AGENT
The Borrower and the Guarantors shall be entitled to rely upon any certificate,
notice or other document provided to any of them by the Administrative Agent
pursuant to this Agreement and the Borrowers and the Guarantors shall be
entitled to deal with the Administrative Agent (and, except as otherwise
specifically provided, not to deal with any Lender prior to an Event of
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Default) with respect to all matters under this Agreement without any liability
whatsoever to the Lenders for relying upon any certificate, notice or other
document provided to any of them by the Administrative Agent, notwithstanding
any lack of authority of the Administrative Agent to provide the same. Without
limiting the generality of the foregoing, but subject as herein otherwise
specifically provided, none of the Lenders shall have any right to enforce
directly any of the provisions of this Agreement or to communicate with the
Borrowers and the Guarantors except through the Administrative Agent in
accordance with the terms of this Agreement or as otherwise specifically
provided in this Agreement. The provisions of this Article 9 are for the benefit
of the Administrative Agent and the Lenders and, except for the provisions of
Sections 9.2, 9.12, 9.13 and 9.14, may not be relied upon by the Borrowers or
the Guarantors.
9.14 REPLACEMENT OF CANCELLED COMMITMENTS
If, at any time prior to the Maturity Date, the Commitment of any Lender or
Lenders is cancelled, or any Lender fails to perform its obligations hereunder,
the Administrative Agent may, and at the request of the Borrowers, provided that
no Default or Event of Default has occurred and is continuing, shall use its
reasonable efforts to locate one or more other Persons ("Substitute Lenders")
satisfactory to the Borrowers (who may be an existing Lender) to become a Lender
and to assume all or a portion of the Commitment so cancelled, provided that the
Administrative Agent shall not be under any obligation to assume such cancelled
Commitment itself if the Administrative Agent is unable to locate any Substitute
Lenders. Upon locating one or more Substitute Lenders, the Administrative Agent
(on behalf of each of the parties hereto other than the Borrowers, the
Guarantors and the Lender or Lenders whose Commitment has been cancelled), the
Borrowers, the Guarantors and the Substitute Lenders shall make any appropriate
amendments to this Agreement which are required to incorporate such Substitute
Lender or Lenders hereunder. If any Substitute Lender is not an existing Lender,
then Celestica shall pay to the Administrative Agent an administration fee of
U.S. $3,500.
9.15 DISCLOSURE OF INFORMATION
(a) The Borrowers agree that, if Celestica has given its prior written
consent to a Person being an assignee or transferee hereunder, then
the Administrative Agent or any Lender may provide any such assignee
or transferee or proposed assignee or transferee pursuant to Section
11.11 with any information it has concerning the financial condition
of the Borrowers and their Subsidiaries other than information
delivered by the Borrowers to the Administrative Agent and/or the
Lenders on a confidential basis which is not in the public domain;
provided that, for greater certainty, nothing in this Section 9.15(a)
shall prevent the Administrative Agent or any Lender from disclosing
the terms of this Agreement on a confidential basis to any proposed
assignee or transferee of any Lender; and provided further that
consent of the Borrowers shall not be required if an Event of Default
has occurred and is continuing.
(b) Subject to Section 9.15(a), the Administrative Agent and each of the
Lenders acknowledges the confidential nature of the financial,
operational and other information and data provided and to be provided
to it by the Borrowers pursuant
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hereto that is not at the time it is so provided or (other than
through a breach of this Agreement) thereafter in the public domain
and agrees to use reasonable efforts to prevent the disclosure of
such information; provided, however, that:
(i) the Administrative Agent or any Lender may disclose all or any
part of such information if, (A) in the sole reasonable
opinion (stated in writing) of the Lenders' Counsel, such
disclosure is compellable by Applicable Law in connection with
any threatened judicial, administrative or governmental
proceeding or is required in connection with any actual
judicial, administrative or governmental proceeding or (B)
such disclosure is compellable by Applicable Law, provided
that in any such event the Administrative Agent or the Lender
will make reasonable efforts to provide Celestica with prompt
written notice of any such compellable disclosure so that
Celestica may seek a protective order or other appropriate
remedy or relief to prevent such disclosure from being made.
The failure to deliver such notice or, where applicable, the
giving of such notice, shall not preclude disclosure by the
Administrative Agent or the Lender where legally required in
the opinion of Lenders' Counsel. In any event, the
Administrative Agent or Lender will furnish only that portion
of such information which, in the reasonable opinion of the
Lenders' Counsel, it is legally required to disclose and will
exercise reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded such information;
(ii) it shall incur no liability in respect of any disclosure of
such information to any, or pursuant to the requirements of
any, judicial authority, law enforcement agency, tax or
regulatory authority which it is required to make in
accordance with Applicable Law;
(iii) it shall inform the Borrowers, as soon as is practicable, of
any disclosure of such information made by it unless such
disclosure is in the ordinary course of its business or such
tax or regulatory authority or such judicial authority or law
enforcement agency requires the Administrative Agent or such
Lender not to inform the Borrowers of the disclosure of such
information to it;
(iv) the Administrative Agent and each Lender may disclose all or
any part of such information on a confidential basis to its
auditors or to Lenders' Counsel or other counsel of reputable
standing on a confidential basis for the purpose of seeking or
obtaining accounting or legal advice;
(v) the Administrative Agent and each Lender may disclose such
information on a confidential basis to any Subsidiary or
Affiliate of the Administrative Agent or Lender if such
disclosure is required in connection with the administration
of the Facility; and
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(vi) if an Event of Default has occurred and is continuing, the
Administrative Agent or any Lender may disclose such
information to any other Agent or other Lenders on a
confidential basis in connection with any discussions
regarding or related to the resolution of such Event of
Default.
9.16 ADJUSTMENTS OF RATEABLE PORTIONS
(a) In connection with any Drawdown (other than a Drawdown of a Swing Line
Advance), Conversion or Rollover or any reimbursement or repayment of
an Obligation, the Administrative Agent shall, in its sole and
unfettered discretion, have the right (but not the obligation) to make
adjustments of the amount of such Drawdown, Conversion or Rollover
advanced or paid by such Lender or the amount of such reimbursement or
repayment to be received by such Lender in order to maintain the
balances of the Advances made by each Lender in the same portion as
the Main Facility Rateable Portion of each Lender.
(b) Upon the occurrence of an acceleration under Section 8.1(f), 8.1(g) or
8.2, if, with respect to any Lender, the aggregate of all outstanding
Advances made by such Lender is less than its Global Rateable Portion
(after giving effect to any adjustment made pursuant to Subsection
9.16(a)) of the aggregate of all outstanding Advances, the
Administrative Agent may, by written notice, require such Lender to
pay to the Administrative Agent, for the credit of the other Lenders,
in such currency or currencies as the Administrative Agent may in its
discretion determine, such amount as may be required so as to bring
the aggregate of all outstanding Advances made by such Lender equal to
its Global Rateable Portion of the aggregate of all outstanding
Advances. The Administrative Agent shall credit the funds received
from such Lender to any other Lender or Lenders, as it may determine
in its discretion, so as to render the aggregate of the outstanding
Advances made by each Lender equal to the Global Rateable Portion of
each Lender of all outstanding Advances.
ARTICLE 10
COSTS, EXPENSES AND INDEMNIFICATION
10.1 COSTS AND EXPENSES
Each Borrower shall pay promptly, upon request by the Administrative Agent
accompanied by reasonable supporting documentation or other evidence, all
reasonable costs and expenses in connection with the due diligence pertaining to
or the preparation, printing, execution and delivery of this Agreement and the
other documents to be delivered hereunder including, without limitation, the
reasonable fees and out-of-pocket expenses of the Lenders' Counsel with respect
thereto. Except for ordinary expenses of the Administrative Agent relating to
the day-to-day administration of this Agreement, each Borrower further agrees to
pay all reasonable out-of-pocket costs and expenses (including reasonable fees
and expenses of counsel, accountants and other experts) in connection with the
syndication of the Facility and the interpretation, preservation or enforcement
of rights of the Administrative Agent and the Lenders under this
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Agreement and the Loan Documents including, without limitation, all reasonable
costs and expenses sustained by them as a result of any failure by any of the
Borrowers or Guarantors to perform or observe its obligations contained in any
of this Agreement and the Loan Documents.
10.2 INDEMNIFICATION BY THE BORROWERS
In addition to any liability of each Borrower to any Lender or the
Administrative Agent under any other provision hereof, each Borrower shall
indemnify the Lenders and the Administrative Agent and hold each Lender and the
Administrative Agent harmless against any reasonable costs or expenses incurred
by a Lender or the Administrative Agent as a result (i) of any failure by such
Borrower to fulfil any of its obligations hereunder or under any Loan Document
in the manner provided herein including, without limitation, any cost or expense
incurred by reason of the liquidation or re-employment in whole or in part of
deposits or other funds required by any Lender to fund or maintain any Advance
as a result of the failure of such Borrower to complete a Drawdown or to make
any repayment or other payment on the date required hereunder or specified by it
in any notice given hereunder; or (ii) the failure of such Borrower to pay any
other amount including, without limitation, any interest or fee due hereunder on
its due date; or (iii) as a result of the prepayment or repayment by such
Borrower of any LIBOR Advance prior to its date of maturity or the last day of
the then current Interest Period for such Advance.
10.3 FUNDS
Each amount advanced, made available, disbursed or paid hereunder shall be
advanced, made available, disbursed or paid, as the case may be, in immediately
available funds or, after notice from the Administrative Agent, in such other
form of funds as may from time to time be customarily used in the jurisdiction
in which the Advance is advanced, made available, disbursed or paid in the
settlement of banking transactions similar to the banking transactions required
to give effect to the provisions of this Agreement on the day such advance,
disbursement or payment is to be made.
10.4 GENERAL INDEMNITY
(a) INDEMNITY. Subject to paragraphs (b), (c) and (d) below, the Borrowers
agree to indemnify and save harmless the Administrative Agent, the
Lenders, their respective Affiliates involved in the syndication or
administration of the Facility, their respective officers, directors,
employees and agents (collectively, the "Indemnitees" and
individually, an "Indemnitee") from and against any and all
liabilities, claims, damages and losses (including reasonable legal
fees and disbursements of counsel but excluding loss of profits and
special or consequential damages) (collectively, the "Losses") as a
result of any claims, actions or proceedings ("Claims") asserted
against the Indemnitees, by a Person other than the Indemnitees in
connection with the agreement of the Lenders to provide the Facility,
the Commitments of the Lenders and the Advances made by the Lenders
including, without limitation: (i) the costs of defending and/or
counterclaiming or claiming over against third parties in respect of
any Claim;
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and (ii) subject to the provisions set forth in paragraph (d) below,
any Losses arising out of a settlement of any Claim made by the
Indemnitees.
(b) LIMITATIONS TO INDEMNITY. The foregoing obligations of indemnification
shall not apply to (i) any Losses suffered by the Indemnitees or any
of them or to any Claim asserted against the Indemnitees or any of
them to the extent such Loss or Claim has resulted from the gross
negligence or wilful misconduct of the Indemnitees or any of them; and
(ii) any Losses with respect to Taxes for which an Indemnitee may
claim an indemnity from an Obligor pursuant to Section 3.5(b) of this
Agreement.
(c) NOTIFICATION. Whenever a Lender or the Administrative Agent shall have
received notice that a Claim has been commenced or threatened, which,
if successful, would subject a Borrower (the "Indemnifying Party") to
the indemnity provisions of this Section 10.4, the Lender or Agent
shall as soon as reasonably possible notify (to the extent permitted
by law) the Indemnifying Party in writing of the Claim and of all
relevant information the Lender or the Administrative Agent possesses
relating thereto; provided, however, that failure to so notify the
Indemnifying Party shall not release it from any liability which it
may have on account of the indemnity set forth in this Section 10.4,
except to the extent that the Indemnifying Party shall have been
materially prejudiced by such failure.
(d) DEFENCE AND SETTLEMENT. The Indemnifying Party shall have the right,
but not the obligation, to assume the defence of any Claim in any
jurisdiction with legal counsel of reputable standing in order to
protect the rights and interest of the Indemnitees. In such respect,
(i) the Indemnifying Party shall require the consent of the
Indemnitees to the choice of legal counsel in connection with the
Claim, which consent shall not be unreasonably withheld or delayed;
and (ii) without prejudice to the rights of the Indemnitees to retain
counsel and participate in the defence of the Claim, the Indemnifying
Party and the Indemnitees shall make all reasonable efforts to
co-ordinate their course of action in connection with the defence of
such Claim. The related costs and expenses sustained in such respect
by the Indemnitees shall be at the expense of the Indemnifying Party,
provided that the Indemnifying Party shall only be liable for the
costs and expenses of one firm of separate counsel in addition to the
cost of any local counsel that may be required. If the Indemnifying
Party fails to assume defence of the Claim, the Indemnitees will (upon
further notice to the Borrowers) have the right to undertake, at the
expense of the Indemnifying Party, the defence, compromise or
settlement of the Claim on behalf and for the account and risk of the
Indemnifying Party, subject to the right of the Indemnifying Party to
assume the defence of the Claim at any time prior to settlement,
compromise or final determination thereof.
Notwithstanding the foregoing, in the event the Indemnitee, acting reasonably,
does not agree with the manner or timeliness in which the legal counsel of the
Indemnifying Party is carrying on the defence of the Claim, or, pursuant to the
opinion of a reputable counsel retained by the Indemnitee, there may be one or
more legal defences available different from the one carried on
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by the legal counsel of the Indemnifying Party, the Indemnitee shall have the
right to assume its own defence in the Claim by appointing its own legal
counsel. The costs and the expenses sustained by the Indemnitee shall be at the
expense of the Indemnifying Party provided that the Indemnifying Party shall
only be liable for the costs and expenses of one firm of separate counsel, in
addition to the costs of any local counsel that may be required.
The Indemnifying Party shall not be liable for any settlement of any Claim
effected without its written consent (which shall not be unreasonably withheld
or delayed). In addition, the Indemnifying Party will not, without the prior
written consent of the Indemnitee (which consent shall not be unreasonably
withheld or delayed), settle, compromise or consent to the entry of any judgment
in or otherwise seek to terminate any Claim or threatened Claim in respect of
which indemnification or contribution may be sought hereunder.
If an offer for settlement made to any Indemnitee which the Indemnifying Party
has recommended for acceptance is rejected by the Indemnitee and the final
liability of the Indemnitee in respect of such action and all related damages is
greater than such offer, the liability of the Indemnifying Party will only be to
indemnify the Indemnitee up to the amount of such offer.
10.5 ENVIRONMENTAL CLAIMS
(a) INDEMNITY. Subject to paragraphs (b), (c) and (d) below, the Borrowers
agree to indemnify and save harmless the Indemnitees from and against
any and all Losses as a result of any Claims asserted against the
Indemnitees by a Person other than the Indemnitees with respect to any
material presence or Release on, into, onto, under or from any
property owned, leased or operated by any of the Borrowers or any
Subsidiary (the "PROPERTY") of any Hazardous Material (as hereinafter
defined) regardless of whether caused by, or within the control of,
the Borrower or any Subsidiary or which arises out of or in connection
with any action of, or failure to act by, the Borrowers or any
Subsidiary or any predecessor or successor thereof in contravention of
any present or future applicable Environmental Laws, whether or not
having the force of law, including, without limitation: (i) the costs
of defending and/or counterclaiming or claiming over against third
parties in respect of any such Claim; and (ii) subject to the
provisions set forth in paragraph (d) below, any Losses arising out of
a settlement made by the Indemnitees of any Claim. "HAZARDOUS
MATERIAL" means any contaminant, pollutant, waste of any nature,
hazardous or toxic substance or material or dangerous good as defined,
judicially interpreted or identified in any Environmental Law or any
substance that causes harm or degradation to the surrounding
environment or injury to human health and, without restricting the
generality of the foregoing, includes any pollutant, contaminant,
waste, hazardous waste, deleterious substance or dangerous good
present in such quantity or state that it contravenes any
Environmental Laws or gives rise to any liability or obligation under
any Environmental Law.
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(b) LIMITATIONS TO INDEMNITY. The foregoing obligations of indemnification
shall not apply to any Losses suffered by the Indemnitees or any of
them or to any Claim asserted against the Indemnitees or any of them
which relates directly to any action or omission taken by any of the
Indemnitees while in possession or control of the Property which is
grossly negligent or constitutes wilful misconduct but shall apply to
any Claim occurring during such period that relates to a continuation
of conditions previously in existence or of a practise previously
employed by any Obligor.
(c) NOTIFICATION. Whenever an Indemnitee shall have received notice that a
Claim has been commenced or threatened, which, if successful, would
subject the Borrowers to the indemnity provisions of this Section
10.5, the Indemnitee shall as soon as reasonably possible and in any
event on or before the expiry of the date (the "Notification Date")
which is the earlier of (i) the tenth Banking Day after the receipt of
such notice by the Indemnitee, and (ii) such date as will afford
sufficient time for the Borrowers to prepare and file a timely answer
to the Claim, notify the Borrowers of the Claim and of all relevant
information the Indemnitee possesses relating thereto. If the
Indemnitee shall fail to so notify the Borrowers and provide it with
such information on or before the Notification Date, the Borrowers
shall not have any liability hereunder in respect of any Losses
suffered by the Indemnitee in respect of such Claim to the extent such
Losses may be reasonably attributable to such failure by the
Indemnitee.
(d) DEFENCE AND SETTLEMENT. The provisions of Section 10.4(d) shall apply
to any Claims under this Section 10.5.
ARTICLE 11
GENERAL
11.1 TERM
The Facility shall expire on the Maturity Date.
11.2 SURVIVAL
All covenants, agreements, representations and warranties made herein or in
certificates delivered in connection herewith by or on behalf of the Borrowers
and each Guarantor shall survive the execution and delivery of this Agreement
and the making of the Drawdowns hereunder and shall continue in full force and
effect so long as there is any obligation of the Borrowers and each Guarantor to
the Administrative Agent, and the Lenders hereunder.
11.3 BENEFIT OF THE AGREEMENT
This Agreement shall enure to the benefit of and be binding upon the successors
and permitted assigns of the Borrowers and the successors and permitted assigns
of the Administrative Agent and the Lenders.
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11.4 NOTICES
All notices, requests, demands or other communications to or from the parties
hereto shall be in writing and shall be given by overnight delivery service, by
hand delivery or by telecopy to the addressee as follows:
(i) If to the Borrowers:
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Corporate Treasurer
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
(ii) If to the Administrative Agent (in respect of all matters):
The Bank of Nova Scotia
Loan Syndications
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Managing Director
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if to a Lender, at the addresses set out in Schedule A or in
the relevant Transfer Notice;
or at such other address or to such other individual as the Borrowers may
designate by notice to the Administrative Agent and as the Administrative Agent
or a Lender may designate by notice to the Borrowers and the Lenders or the
Administrative Agent, as the case may be.
11.5 AMENDMENT AND WAIVER
This Agreement and any Loan Documents collateral hereto may be modified or
amended and a waiver of any breach of any term or provision of this Agreement
shall be effective only if the Borrowers, the Administrative Agent and the
Majority Lenders so agree in writing, provided that in all cases the Borrowers
shall be entitled to rely upon the Administrative Agent, without further inquiry
in respect of any amendments or waivers agreed to by the Administrative Agent
and which the Administrative Agent has confirmed have been agreed to by the
Majority Lenders; provided further, however, that no amendment, waiver or
consent, unless in writing and signed by all of the Lenders shall: (i) increase
the Commitment of any Lender or subject any Lender to any additional obligation;
(ii) reduce the principal of, or interest on, the Advances or reduce any fees
hereunder; (iii) postpone any date fixed for any payment of principal of, or
interest on, the
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Advances or any other amounts payable hereunder; (iv) change the Global Rateable
Portion of any Lender except for adjustments thereto made by the Administrative
Agent in accordance with the terms of this Agreement, or the aggregate unpaid
principal amount of the Advances, or the number of Lenders which shall be
required for the Lenders to take any action hereunder; (v) amend the definition
of Majority Lenders; (vi) amend or release any Guarantee, except to the extent
that a release of a Guarantee may be effected pursuant to a transaction subject
to Section 11.12 or is otherwise authorized pursuant to the terms of this
Agreement and except to the extent that an amendment, as determined by the
Administrative Agent and Lenders' Counsel, each acting reasonably, does not
materially impair the enforceability of such Guarantee; or (vii) amend this
Section 11.5; and provided, further, that no amendment, waiver or consent,
unless in writing and signed by the Administrative Agent or Swing Line Lender,
as applicable, in addition to the Lenders required herein above to take such
action, affects the rights or duties of the Administrative Agent or Swing Line
Lender, as applicable, under this Agreement or any Advance. A waiver of any
breach of any term or provision of this Agreement shall be limited to the
specific breach waived.
11.6 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein. The
Administrative Agent, Lenders and Borrowers agree that any legal suit, action or
proceeding arising out of this Agreement or any Loan Document may be instituted
in the courts of Ontario, and the Administrative Agent, Lenders and Borrowers
hereby accept and irrevocably submit to the nonexclusive jurisdiction of said
courts and acknowledge their competence and agree to be bound by any judgment
thereof.
11.7 FURTHER ASSURANCES
Each Obligor shall promptly cure any default in its execution and delivery of
this Agreement or in any of the other instruments referred to or contemplated
herein to which it is a party. Each Obligor, at its expense, will promptly
execute and deliver, or cause to be executed and delivered, to the
Administrative Agent, upon request, all such other and further documents,
agreements, certificates and instruments in compliance with, or accomplishment
of the covenants and agreements of such Obligor hereunder or more fully to state
the obligations of such Obligor as set out herein or to make any recording, file
any notice or obtain any consents, all as may be necessary or appropriate in
connection therewith.
11.8 ENFORCEMENT AND WAIVER BY THE LENDERS
Subject to Section 9.11, the Lenders shall have the right at all times to
enforce the provisions of this Agreement and agreements to be delivered pursuant
hereto in strict accordance with the terms hereof and thereof, notwithstanding
any conduct or custom on the part of the Lenders in refraining from so doing at
any time or times. The failure of the Lenders at any time or times to enforce
their rights under such provisions, strictly in accordance with the same, shall
not be construed as having created a custom in any way or manner, modified or
waived the same. All rights and remedies of the Lenders are cumulative and
concurrent and the exercise of one right or remedy shall not be deemed a waiver
or release of any other right or remedy.
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11.9 EXECUTION IN COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
considered an original and all of which taken together shall constitute a single
agreement.
11.10 ASSIGNMENT BY THE BORROWERS
The rights and obligations of the Borrowers under this Agreement are not
assignable to any other Person, except in accordance with Article 5, without the
prior written consent of all of the Lenders, which consent shall not be
unreasonably withheld.
11.11 ASSIGNMENTS AND TRANSFERS BY A LENDER
(a) With the prior written consent of the Administrative Agent and
Celestica, such consent not to be unreasonably withheld or delayed,
any Lender may, at any time, assign all or any of its rights and
benefits hereunder or transfer in accordance with Section 11.11(b) all
or any of its rights, benefits and obligations hereunder; provided
that in the event that such assignment would give rise to a claim for
increased costs pursuant to Article 3, it shall not be unreasonable
for Celestica to withhold its consent to such assignment. Any
assignment or transfer shall be with respect to a minimum Commitment
of U.S. $25,000,000 and integral multiples of U.S. $1,000,000 in
excess thereof. A lesser amount may be assigned or transferred by any
Lender if such amount represents the remaining balance of such
Lender's Commitment. Notwithstanding the foregoing, the consent of the
Administrative Agent and Celestica is not required in connection with
the assignment or transfer of all or any of the rights, benefits and
obligations hereunder (i) to any Subsidiary or Affiliate of a Lender
or to any other Lender hereunder provided that notice is given to the
Administrative Agent and Celestica, and provided that, in either case,
any such assignment or transfer does not give rise to a claim for
increased costs pursuant to Article 3 or any obligation on the part of
an Obligor to deduct or withhold any Taxes from or in respect of any
sum payable hereunder to the Administrative Agent or the Lenders, in
either case, in excess of what would have been the case without such
assignment, or such assignee waives the rights to any benefits under
Section 3.5; or (ii) to any financial institution if an Event of
Default has occurred and is continuing.
(b) If any Lender assigns all or any of its rights and benefits hereunder
in accordance with Section 11.11(a), then, unless and until the
assignee has agreed with the Administrative Agent and the other
Lenders (in a Transfer Notice or otherwise) that it shall be under the
same obligations towards each of them as it would have been under if
it had been an original party hereto as a Lender, none of the
Administrative Agent or any of the other Lenders or the Borrowers
shall be obliged to recognize such assignee as having the rights
against each of them which it would have had if it had been such a
party hereto.
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(c) If any Lender wishes to assign all or any of its rights, benefits
and/or obligations hereunder as contemplated in Section 11.11(a), then
such transfer may be effected upon:
(i) receipt of the written consent of the Administrative Agent and
Celestica as referred to in Section 11.11(a) delivered to the
relevant assignee by the Administrative Agent unless an Event
of Default has occurred and is continuing in which case
consent of Celestica shall not be required;
(ii) the delivery to and countersignature by the Lender of a duly
completed and duly executed Transfer Notice; and
(iii) if any Lender wishes to assign any of its rights, benefits
and/or obligations hereunder to a financial institution which
is not a Lender or a Subsidiary or Affiliate of a Lender, such
Lender shall have paid to the Administrative Agent a fee in
the amount of U.S. $3,500;
in which event, on the later of the effective date, if any,
specified in such Transfer Notice and the fifth Banking Day
after the date of delivery of such Transfer Notice to the
Administrative Agent (unless the Administrative Agent agrees
to a shorter period):
(iv) to the extent that in such Transfer Notice the Lender party
thereto seeks to transfer its rights and obligations
hereunder, each of the Obligors and such Lender shall be
released from further obligations towards one another
hereunder and their respective rights against one another
shall be cancelled (such rights and obligations being referred
to in this Section 11.11(c) as "discharged rights and
obligations");
(v) each of the Obligors and the assignee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights
and obligations only insofar as such Obligor and such Assignee
have assumed and/or acquired the same in place of such Obligor
and such Lender; and
(vi) the Administrative Agent, such assignee and the other Lenders
shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had
such assignee been an original party hereto as a Lender with
the rights and/or obligations acquired or assumed by it as a
result of such transfer.
(d) Each of the parties hereto confirms that:
(i) the delivery to an assignee of a Transfer Notice signed by a
Lender constitutes an irrevocable offer (subject to the
conditions of Section 11.11(c)) by each of the parties hereto
to accept such transferee (subject to
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the conditions set out herein) as a Lender party hereto with
the rights and obligations so expressed to be transferred;
(ii) such offer may be accepted by such assignee by the execution
of such Transfer Notice by such assignee and upon fulfilment
of the conditions set forth in Section 11.11(c); and
(iii) the provisions of this Agreement shall apply to the contract
between the parties thereto arising as a result of acceptance
of such offer.
(e) The Administrative Agent shall not be obliged to accept any Transfer
Notice received by it hereunder and no such Transfer Notice may take
effect on any day on or after the receipt by the Administrative Agent
of a Drawdown Notice and prior to the date for the making of the
proposed Advance.
(f) No transfer pursuant to this Section 11.11 shall, unless the
Administrative Agent otherwise decides in its absolute discretion and
notifies the parties to such transfer accordingly, be effective if the
date for effectiveness of such transfer on the day on which the
Administrative Agent receives the applicable Transfer Notice is on, or
less than five Banking Days before, the day for the payment of any
interest or fee hereunder.
(g) Any Lender may participate all or any part of its interest hereunder,
provided that any such participation does not give rise to a claim for
increased costs pursuant to Article 3 or any obligation on the part of
an Obligor to deduct or withhold any Taxes from or in respect of any
sum payable hereunder to the Administrative Agent or the Lenders, or
such Lender and participant waive the right to any benefits under
Section 3.5 and, in such case, notice of such participation has been
given to the Administrative Agent and Celestica. Such participant
shall not be entitled to any vote as a Lender. The Borrowers shall not
be obligated to deal with any participant and shall be entitled to
deal solely with the Lender and the Lender shall not be released from
any of its obligations to the Borrowers as a result of such
participation except to the extent that the participant has fulfilled
such obligations. Such participants shall be bound to the same
confidentiality provisions with respect to the Facility, the Borrowers
and the Guarantors as are applicable to the Lenders.
11.12 CERTAIN REQUIREMENTS IN RESPECT OF MERGER, ETC.
No Borrower shall, and the Borrowers shall not permit any Restricted Subsidiary
(in each case, a "Predecessor Corporation") to, enter into any transaction
(whether by way of liquidation, dissolution, amalgamation, merger, transfer,
sale or otherwise) whereby all or substantially all of its undertaking, property
and assets would become the property of any other Person or, in the case of any
such amalgamation or merger, of the continuing company resulting therefrom, or
whereby the obligation of the Predecessor Corporation to pay amounts under this
Agreement would become subject to novation or assumed or undertaken by any other
such Person or
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continuing company (a "Corporate Reorganization"), provided that it may do so
(and if the Predecessor Corporation is a Borrower or a Material Restricted
Subsidiary such Person or continuing company shall become a party to this
Agreement or to the Guarantee provided by such Material Restricted Subsidiary,
as the case may be) if:
(a) such other Person or continuing company (herein referred to as a
"Successor Corporation") is a Borrower or Restricted Subsidiary;
(b) where required in the reasonable opinion of Lenders' Counsel, a
Successor Corporation which is a Borrower or Material Restricted
Subsidiary shall execute and/or deliver to the Administrative Agent an
agreement supplemental hereto or to the Guarantee or Guarantees
executed by a Predecessor Corporation or Predecessor Corporations, as
the case may be, in form reasonably satisfactory to the Administrative
Agent and execute and/or deliver such other instruments, if any, which
to the reasonable satisfaction of the Administrative Agent and in the
opinion of Lenders' Counsel are necessary to evidence (i) the
assumption by the Successor Corporation of liability under each Loan
Document to which the Predecessor Corporation is a party for the due
and punctual payment of all money payable by the Predecessor
Corporation thereunder, and (ii) the covenant of the Successor
Corporation to pay the same and (iii) the agreement of the Successor
Corporation to observe and perform all the covenants and obligations
of the Predecessor Corporation under each Loan Document to which the
Predecessor Corporation was a party and to be bound by all the terms
of each such Loan Document so far as they relate to the Predecessor
Corporation which instruments, if any, shall be in form reasonably
satisfactory to the Administrative Agent;
(c) such transaction would not have a Material Adverse Effect;
(d) all Other Taxes payable as a result of such transaction have been
paid;
(e) such transaction will not result in any claim for increased costs
pursuant to Section 3.2 or result in any Tax being levied on or
payable by the Administrative Agent or any Lender (except for Taxes on
the overall net income or capital of the Administrative Agent or a
Lender provided there is no increase in such Taxes as a result of such
transaction);
(f) such transaction will not cause, or have the result of the
Administrative Agent, the Lenders or any of them being in default
under, noncompliance with, or violation of, any Applicable Law;
(g) an opinion of Borrowers' counsel substantially in the form and as to
matters addressed in the opinion of Borrowers' Counsel delivered
pursuant to Section 4.1 shall have been delivered to the
Administrative Agent;
(h) each of the covenants set forth in Section 7.3 shall be satisfied on
an actual and pro forma basis after giving effect to such transaction;
and
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(i) no Default or Event of Default shall have occurred and be continuing
or will occur as a result of such transaction.
Sections 11.12(a), (b) and (g) shall not apply to the respective liquidation or
dissolution of Celestica Ireland B.V. and Celestica Power Systems USA Inc.
This Section 11.12 shall not apply to permit any consolidation, amalgamation or
merger by or of Celestica unless, as the result thereof, the Successor
Corporation is Celestica.
A Successor Corporation shall not be required to comply with Section 11.12(b)
and (g) in respect of a Corporate Reorganization where one or more of the
participants in the subject Corporate Reorganization is a Predecessor
Corporation which is a Borrower or Restricted Subsidiary existing under the laws
of an Exempted Jurisdiction and which, prior to the completion of such Corporate
Reorganization, delivered a Guarantee in accordance with Section 7.1(m)(i) and
the Guarantee delivered by such Predecessor Corporation (the "PREDECESSOR
GUARANTEE") has not been terminated or released. In this paragraph, "EXEMPTED
JURISDICTION" means:
(i) the Province of Ontario, unless, following the date hereof,
the laws of such Province change in a manner that would
adversely affect the enforceability of the Predecessor
Guarantee against the Successor Corporation;
(ii) Canada, unless following the date hereof, the laws of Canada
or the laws of the Province of Canada which govern such
Guarantee change in a manner that would adversely affect the
enforceability of the Predecessor Guarantee against the
Successor Corporation; and
(iii) the State of Delaware, unless, following the date hereof, the
laws of such State change in a manner that would adversely
affect the enforceability of the Predecessor Guarantee against
the Successor Corporation.
11.13 LOCATION OF LENDERS
Unless otherwise agreed between the Administrative Agent and Celestica, each
Lender shall be resident in Canada. In respect of any Lender which assigns or
shares part of its Commitment with an Affiliate or Subsidiary, the provisions of
Article 9 relating to the appointment and authorization of the Administrative
Agent and the indemnification of the Administrative Agent shall apply equally to
each such Affiliate and Subsidiary.
11.14 SET-OFF
If an Event of Default has occurred, the Administrative Agent and Lender shall
have the right to set off against any accounts, credits or balances maintained
by the Obligors with the Administrative Agent or any Lender, any amount due
hereunder.
11.15 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
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11.16 ADVERTISEMENTS
The Administrative Agent and the Lenders agree that prior to any advertisement
with respect to this transaction, the Administrative Agent shall obtain the
written consent of Celestica as to the form and content of such advertisement,
such consent not to be reasonably withheld and to be provided as soon as
practicable.
11.17 DESIGNATION
Celestica, as issuer pursuant to the Indenture dated as of November 18, 1996
originally among Celestica International Inc. as issuer and Celestica Inc. and
Celestica Corporation as guarantors (the "TRUST INDENTURE"), as amended, hereby
designates the Facility and all Advances made under this Agreement as
"Designated Senior Debt" in accordance with the terms of the Trust Indenture,
subject to the consent of the lenders under the Senior Unsecured Credit
Agreement.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement.
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
CELESTICA INC.
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇. ▇▇▇▇▇▇ Thouret
Title: Vice-President and Corporate Treasurer
CELESTICA INTERNATIONAL INC.
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇. ▇▇▇▇▇▇ Thouret
Title: Vice-President and Treasurer
SIGNATURE PAGE FOR THE BANK OF NOVA SCOTIA, AS LENDER
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE FOR BANK OF AMERICA CANADA, AS LENDER
BANK OF AMERICA CANADA
By: /s/ ▇. ▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Corporate Investment
Banking
SIGNATURE PAGE FOR ROYAL BANK OF CANADA, AS LENDER
ROYAL BANK OF CANADA
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Account Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Manager
SIGNATURE PAGE FOR CANADIAN IMPERIAL BANK OF COMMERCE, AS LENDER
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Vlada Dekina
-----------------------------------------
Name: Vlada Dekina
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE FOR CITIBANK CANADA, AS LENDER
CITIBANK CANADA
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
SIGNATURE PAGE FOR CREDIT SUISSE FIRST BOSTON CANADA, AS LENDER
CREDIT SUISSE FIRST BOSTON CANADA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE FOR DEUTSCHE BANK AG, CANADA BRANCH, AS LENDER
DEUTSCHE BANK AG, CANADA BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
SIGNATURE PAGE FOR THE BANK OF NOVA SCOTIA (ON ITS
OWN ACCOUNT), AS LENDER IN RESPECT OF THE COMMITMENT
OF NATIONAL WESTMINSTER BANK PLC
THE BANK OF NOVA SCOTIA (ON ITS OWN
ACCOUNT, AND NOT AS AGENT), AS LENDER IN
RESPECT OF THE COMMITMENT OF NATIONAL
WESTMINSTER BANK PLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
SIGNATURE PAGE FOR NATIONAL BANK OF CANADA, AS LENDER
NATIONAL BANK OF CANADA
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: Manager