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HomeMy WebLinkAbout2001-189 a THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW #2001- 189 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and Toronto Dominion Bank, Oshawa, Ontario for the Banking Services for the Municipality of Clarington. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington with the Corporation Seal, a contract between Toronto Dominion Bank, Oshawa, , Ontario and said Corporation; and 2. THAT this agreement attached hereto as Schedule "A" form part of this By-law. By-law read a first and second time this 29th day of October , 2001. By-law read a third time and finally passed this 29th of October , 2001. John M ayor atti L. rne, unicipal Clerk i © Commercial Banking South-East Ontario Commercial Banking Centre 4 King St.W. P.O. Box 247 Oshawa, Ontario L1H 71_3 Telephone No. : 905-576-7741 Fax No. : 905-576-9147 August 7, 2001 Corporation Of The Municipality Of Clarington 40 Temperance St Bowmanville, ON Li C 3A6 Dear Sirs We are pleased to offer the Borrower the following credit facilities (the"Facilities"), subject to the terms and conditions outlined below. BORROWER Corporation of the Municipality of Clarington (the"Borrower") LENDER The Toronto-Dominion Bank(the"Bank"),through its South-East Ontario Commercial Banking Centre branch, in Oshawa, Ontario. CREDIT LIMIT 1) CDN$10,000,000 TYPE OF CREDIT AND BORROWING OPTIONS 1) Operating Loan available at the Borrower's option by way of: • Prime Rate Based Loans in CDN$("Prime Based Loans") • Bankers Acceptances in CDN$("B/As") PURPOSE 1) To assist with working capital requirements. TENOR 1) Uncommitted INTEREST RATES AND FEES Advances shall bear interest and fees as follows: 1) Operating Loan: • Prime Based Loans: Prime Rate-0.50%per annum • B/As: Stamping Fee at 37.5 bps per annum Interest Payments will be made in accordance with Schedule "A" attached hereto. Information on Interest Rate and Fee Definitions, Interest Rate Calculations and Payment is set out in the Schedule"A"attached hereto. EEES None DRAWDOWN 1) On a revolving basis. Notice periods, minimum amounts of draws, interest periods and terms for Banker's Acceptances and other similar details are set out in the Schedule"A"attached hereto. BUSINESS CREDIT SERVICE The Borrower will have access to the Operating Loan (Facility 1)via Loan Account Number 3184-9743001 (the"Loan Account") up to the Credit Limit of the Operating Loan by withdrawing funds from the Borrower's Current Account Number 3184-743001 (the "Current Account").The Borrower agrees that each advance from the Loan Account will be in an amount equal to$5,000(the"Transfer Amount")or a multiple thereof. If the transfer amount is NIL,the Borrower agrees that an advance from the Borrower's Loan Account may be in an amount sufficient to cover the debits made to the Current Account. The Borrower agrees that: a) all other overdraft privileges which have governed the Borrower's Current Account are hereby canceled. b) all outstanding overdraft amounts under any such other agreements are now included in Indebtedness under this Agreement. The Bank may, but is not required to, automatically advance the Transfer Amount or a multiple thereof or any other amount from the Loan Account to the Current Account in order to cover the debits made to the Current account if the amount in the Current Account is insufficient to cover the debits. The Bank may,but is not required to, automatically and without notice apply the funds in the Current Account in amounts equal to the Transfer Amount or any multiple thereof or any other amount to repay the outstanding amount in the Loan Account. REPAYMENT 1) On demand. If the Bank demands repayment,the Borrower will pay to the Bank all amounts outstanding under the Operating Loan, including without limitation,the amount of all unmatured B/As. SECURITY Nil QJSBURSEMENT CONDITIONS The obligation of the Bank to make any loan hereunder is subject to the Standard Disbursement Conditions contained in Schedule"A". REPRESENTATIONS AND WARRANTIES All representations and warranties shall be deemed to be continually repeated so long as any amounts remain outstanding and unpaid under this Agreement or so long as any commitment under this Agreement remains in effect.The Borrower makes the Standard Representations and Warranties set out in Schedule"A". POSITIVE COVENANTS So long as any amounts remain outstanding and unpaid under this Agreement or so long as any commitment under this Agreement remains in effect,the Borrower will observe the Standard Positive Covenants set out in Schedule"A"and in addition will: a) Provide Annual, Audited Financial Statements within 120 days of the Borrower's fiscal year end. b) Provide Annual,Audited Financial Statements for The Veridian Corporation within 120 days of fiscal year end. C) Provide the Annual Repayment Limit for the current year within 120 days of fiscal year end. • d d) Provide the Borrowing By-Law for the current year within 120 days of fiscal year end. e) Ensure that the Operating Line shows wide and frequent fluctuations. NEGATIVE COVENANTS So long as any amounts remain outstanding and unpaid under this Agreement or so long as any commitment under this Agreement remains in effect,the Borrower will observe the Standard Negative Covenants set out in Schedule"A". FINANCIAL COVENANTS None EVENTS OF DEFAULT The Bank may accelerate the payment of principal and interest under any committed credit facility hereunder and cancel any undrawn portion of any committed credit facility hereunder, at any time after the occurrence of any one of the Standard Events of Default contained in Schedule"A". ANCILLARY FACILITIES In addition to the Facilities,the Bank has made available to Borrower the following ancillary facilities (the"Ancillary Facilities")which the Borrower agrees will not be used for speculative purposes: 1) Purchase Manager Visa Cards with an aggregate limit of$315,000. AVAILABILITY OF OPERATING LOAN The Operating Loan is uncommitted, made available at the Bank's Discretion,and is not automatically available upon satisfaction of the terms and conditions,conditions precedent, or financial tests set out herein. The occurrence of an Event of Default is not a precondition to the Bank's right to accelerate repayment and cancel the availability of the Operating Loan. SCHEDULE"A"- STANDARD TERMS AND CONDITIONS Schedule"A"sets out the Standard Terms and Conditions ("Standard Terms and Conditions")which apply to these credit facilities.The Standard Terms and Conditions, including the defined terms set out therein,form part of this Agreement, unless this letter states specifically that one or more of the Standard Terms and Conditions do not apply or are modified. We trust you will find these facilities helpful in meeting your ongoing financing requirements. We ask that if you wish to accept this offer of financing (which includes the Standard Terms and Conditions),please do so by signing and returning the attached duplicate copy of this letter to the undersigned. This offer will expire if not accepted in writing and received by the Bank on or before November 30.2001, Yours truly, THE TORONTO-DOMINION BANK: K196 K74 Mary Kowal Signing Patrick J.Xblly Signing Relationship Manager No. VP i;qmmercial Bankin No. TO THE TORONTO-DOMINION BANK: Corporation of the Municipality of Clarington hereby accepts the foregoing offer this 29th day of November , 2001. Signature S' nature John Mutton, Mayor Patti L Barrie, Clerk Print Name&Position Print Name&Position Signature Signature Print Name&Position Print Name&Position SCHEDULE A STANDARIXTERMS AND CONDITIONS L INT R ST RATF DEFINITIONS 3.DRAWDOWN PROVISIONS Prime Rate means the rate of Interest per annum(based on a 365/366 day year)established and reported by the Bank to the Bank of Canada from Prime Rased and LISRR Loann time to time as the reference rate of Interest for determination of interest There is no minimum amount of drawdown by way of Prime Based Loans rates that the Bank charges to customers of varying degrees of and USSR Loans,except as stated in the section of the Agreement titled creditworthiness in Canada for Canadian dollar loans made by it in "Business Credit Services Agreement",If that section of the Agreement Canada. has not been deleted.The Borrower shall provide the Bank with 3 Business Day's notice of a requested Prime Based Loan or USBR Loan The Stamping Fee rate per annum is based on a 365/366 day year and over$1,000,000. the Stamping Fee is calculated on the Face Amount of each B/A presented to the Bank for acceptance. BLA& The Borrower shall advise the Bank of the requested term or maturity date LIBOR means the rate of Interest per annum(based on a 360 day year)as for B/As issued hereunder. The Bank shall have the discretion to restrict determined by the Bank(rounded upwards,if necessary to the nearest the term or maturity dates of B/As.In no event shall the term of the B/A whole multiple of 1/1 6th of 1%)at which the Bank may make available exceed the Maturity Date.The minimum amount of a drawdown by way of United States dollars which are obtained by the Bank In the Interbank Euro B/As is$500,000 and in multiples of$100,000 thereafter.The Borrower Currency Market,London,England at approximately.11:00 a.m.(Toronto shall provide the Bank with 3 Business Day's notice of a requested B/A time)on the second Business Day before the first day of,and in an drawdown. amount similar to,and for the period similar to the Interest period of,such advance. The Borrower shall pay to the Bank the final amount of the B/A at the maturity date of the B/A. USBR means the rate of Interest per annum(based on a 365/366 day year)established by the Bank from time to time as the reference rate of LIBOR interest for the determination of Interest rates that the Bank charges to The Borrower shall advise the Bank of the requested LIBOR contract customers of varying degrees of creditworthiness for US dollar loans made maturity period. The Bank shall have the discretion to restrict the LIBOR by it in Canada. contract maturity. In no event shall the term of the LIBOR contract exceed the Maturity Date. The minimum amount of a drawdown by way of a Any Interest rate based on a period less than a year expressed as an LIBOR Loan is$1,000,000,and shall be in multiples of$100,000 annual rate for the purposes of the Interest Act(Canada)is equivalent to thereafter.The Borrower will provide the Bank with 3 Business Day's such determined rate multiplied by the actual number of days in the notice of a requested LIBOR Loan. calendar year in which the same is to be ascertained and divided by the number of days in the period upon which it was based. 1 and/or L/. The Bank shall have the discretion to restrict the maturity date of UGs or 9 INTFRFST CALCULATION AND PAYNI NT L/Cs. Interest on Prime Based Loans and USBR Loans is calculated daily and payable monthly in arrears based on the number of days the subject loan R/A-Prime Conversion is outstanding. The Borrower will provide the Bank with at least 3 Business Days notice of its intention either to convert a B/A to a Prime Based Loan or vice versa, The Stamping Fee is calculated based on the amount and the term of the failing which,the Bank may decline to accept such additional B/As or may B/A and payable upon acceptance by the Bank of the B/A.The net charge interest on the amount of Prime Based Loans resulting from proceeds received by the Borrower on a B/A advance will be equal to the maturity of B/As at the rate of 115%of the rate applicable to Prime Based Face Amount of the B/A discounted at the Bank's then prevailing B/A Loans for the 3 Business Day period immediately following such maturity. discount rate for the specified term of the B/A less the B/A Stamping Fee. Thereafter,the rate shall revert to the rate applicable to Prime Based Loans. Interest on LIBOR Loans is calculated and payable on the earlier of contract maturity or quarterly In arrears,for the number of days in the g.PREPAYMENT LIBOR interest period. For Facilities available on a"revolving"basis,prepayment Is not applicable. L/C and UG fees are payable at the time of Issuance of the L/C or UG. For Facilities where the Tenor is described as'Committed'and Drawdown Interest on Fixed Rate Loans is compounded monthly and payable is not on a revolving basis,when not in default,the Borrower may prepay monthly in arrears unless otherwise noted. all or any part of the principal then outstanding upon payment of Interest accrued to the date of prepayment("Prepayment Date")and prepayment Interest is payable both before and after maturity or demand,default and charges equal to the greater of: judgment. (a) three months'Interest on the amount of the prepayment using the Interest rate applicable to the loan facility being prepaid;and Each payment under this Agreement shall be applied first in payment of (b) the Interest Rate Differential. "Interest Rate Differential"means the costs and expenses,then interest and fees and the balance,if any,shall amount,by which(1)the total amount of Interest the Bank would have be applied In reduction of principal. received on the amount prepaid had it not been prepaid but remained outstanding to the Maturity Date exceeds(11)the total amount of For loans not secured by real property,all overdue amounts of principal interest the Bank would receive on the amount prepaid on a Fixed and Interest shall bear interest from the date on which the same became Rate Loan made for a term from the date of prepayment until the due until the date of payment at the All-in Rate plus 2%per annum. Maturity Date using the Interest rate applicable to a Fixed Rate Loan the Bank would make to a borrower for a comparable facility on the Prepayment Date for a term expiring on the Maturity Date. 5 STANDARD DISR URSEM91INIT C'nNniTIoNS 7.STANDARD POSITIVE rQVFNANTS The obligation of the Bank to make any loan or advance hereunder at any So long as any amounts remain outstanding and unpaid under this time is subject to the following conditions precedent: Agreement or so long as any commitment under this Agreement remains a) The Bank shall have received the following documents which shall be in effect,the Borrower will,and will ensure that its subsidiaries and each in form and substance satisfactory to the Bank: of the Guarantors will: I) A copy of a duly executed resolution of the Board of Directors of a) Pay all amounts of principal,interest and fees on the dates,times and the Borrower empowering the Borrower to enter Into this place specified herein and under any other agreement between the Agreement; Bank and the Borrower. it) A copy of any necessary government approvals authorizing the b) Advise the Bank of any change in the amount and the terms of any Borrower to enter into this Agreement; credit arrangement made with other lenders or any action taken by 111) All of the Bank Security and supporting resolutions and solicitors' another lender to recover amounts outstanding with such other letter of opinion required hereunder; lender. Iv) The Borrower's compliance certificate certifying compliance with c) Advise promptly alter the happening of any event which will result In a all terms and conditions hereunder;and material adverse change in the financial condition,business, v) all operation of account documentation; operations,or prospects of the Borrower or the occurrence of any b) The representations and warranties contained in this Agreement are Event of Default or default under this Agreement or under any other correct. agreement for borrowed money. c) No event has occurred and is continuing which constitutes an Event of d) Do all things necessary to maintain in good standing its corporate Default or would constitute an Event of Default,but for the requirement existence and preserve and keep all material agreements,rights, that notice be given or time elapse or both. franchises,licenses,operations,contracts or other arrangements in d) The Bank has received the arrangement fee payable hereunder(if full force and effect. any)and the Borrower has paid all legal and other expenses incurred e) Take all necessary actions to ensure that the Bank Security and its by the Bank in connection with the Agreement or the Bank Security. obligations hereunder will rank ahead of all other indebtedness of and 6 STANDARD R PR NTATION AND WARRANTIES all other security granted by the Borrower. f) Pay all taxes,assessments and government charges unless such The Borrower hereby represents and warrants,which representations and taxes,assessments,or charges are being contested in good faith and warranties shall be deemed to be continually repeated so long as any appropriate reserves shall be made with funds set aside in a separate amounts remain outstanding and unpaid under this Agreement or so long trust fund. as any commitment under this Agreement remains in effect,that: g) Provide the Bank with Information and financial data as it may request a) The Borrower is a dui Incorporated corporation,a limited from time to time. Y Po Po partnership, partnership,or sole proprietorship,duly organized,validly existing and h) Maintain property,plant and equipment in good repair and working condition. In good standing under the laws of the jurisdiction where the i) Inform the Bank of any actual or probable litigation and furnish the Branch/Centre is located and each other jurisdiction where the Bank with copies of details of any litigation or other proceedings, Borrower has adequate corporate power and d authority to carry on Its Borrower has property or assets or carries business and the which might affect the financial condition,business,operations,or business,own property,borrow monies and enter Into agreements prospects of the Borrower. therefore,execute and deliver the Agreement,the Bank Security,and D Provide such additional security and documentation as may be documents required hereunder,and observe and perform the terms required from time to lime by the Bank or its solicitors. and provisions of this Agreement. k) Continue to carry on the business currently being carried on by the b) There are no laws,statutes or regulations applicable to or binding Borrower Its subsidiaries and each of the Guarantors at the date upon the Borrower and no provisions in its charter documents or in hereof. any by-laws,resolutions,contracts,agreements,or arrangements 1) Maintain adequate Insurance on all of its assets,undertakings,and which would be contravened,breached,violated as a result of the business risks. execution,delivery,performance,observance,of any terms of this m) Permit the Bank or its authorized representatives full and reasonable Agreement. access to its premises,business,financial and computer records and c) No Event of Default has occurred nor has any event occurred which, allow the duplication or extraction of pertinent information therefrom. with the passage of time or the giving of notice,would constitute an S STANDARD NFOATIVE COVFNANTS Event of Default under this Agreement or which would constitute a So long as any amounts remain outstanding and unpaid under this default under any other agreement. Agreement or so long as any commitment under this Agreement remains d) There are no actions,suits or proceedings,including appeals or in effect,the Borrower will not and will ensure that Its subsidiaries and applications for review,or any knowledge of pending actions,suits,or each of the Guarantors will not: proceedings against the Borrower and Its subsidiaries,before any a) Create,Incur,assume,or suffer to exist,any mortgage,deed of trust, court or administrative agency which would result In any material pledge,lien,security Interest,assignment,charge,or encumbrance adverse change in the property,assets,financial condition,business (including without limitation,any conditional sale,or other title or operations of the Borrower. retention agreement,or finance lease)of any nature,upon or with e) All material authorizations,approvals,consents,licenses,exemptions, respect to any of Its assets or undertakings,now owned or hereafter filings,registrations and other requirements of governmental,judicial acquired,except for those Permitted Liens,if any,set out in the and public bodies and authorities required to carry on Its business Letter. have been or will be obtained or effected and are or will be in full force b) Create,incur,assume or suffer to exist any other Indebtedness for and effect. borrowed money(except for Indebtedness resulting from Permitted f) The financial statements and forecasts delivered to the Bank fairly Liens,if any)or guarantee or act as surety or agree to Indemnify the present the present financial position of the Borrower,and have been debts of any other Person. prepared by the Borrower and Its auditors In accordance with c) Merge or consolidate with any other Person,or acquire all or Canadian Generally Accepted Accounting Principles consistently substantially all of the shares,assets or business of any other Person. applied. d) Sell,lease,assign,transfer,convey or otherwise dispose of any of Its g) All of the remittances required to be made by the Borrower to the now owned or hereafter acquired assets(including,without limitation, federal government and all provincial and municipal governments shares of stock and Indebtedness of subsidiaries,receivables and have been made,are currently up to date and there are no leasehold Interests),except for Inventory disposed of in the ordinary outstanding arrears. Without limiting the foregoing,all employee course of business. source deductions(including income taxes,Employment Insurance e) Terminate or enter Into a surrender of any lease of any property and Canada Pension Plan),sales taxes(both provincial and federal), mortgaged under the Bank Security. corporate Income taxes,corporate capital taxes,payroll taxes and f) Cease to cant'on the business currently being carried on by each of worker's compensation dues are currently paid and up to date. the Borrower,Its subsidiaries,and the Guarantors at the date hereof. g) Permit any change of ownership or change in the capital structure of the Borrower. 9.ENVIRONMFNT t 11_ AC'M. FRATICIN(ContiniL20 The Borrower represents and warrants(which representation and warranty The Bank may demand the payment of principal and Interest under the shall continue throughout the term of this Agreement)that the business of Operating Loan(and any other uncommitted facility)hereunder and cancel the Borrower,Its subsidiaries and each of the Guarantors is being any undrawn portion of the Operating Loan(and any other uncommitted operated in compliance with applicable laws and regulations respecting facility)hereunder,at any time whether or not an Event of Default has the discharge,omission,spill or disposal of any hazardous materials and occurred. that any and all enforcement actions in respect thereto have been clearly conveyed to the Bank. 12,CLIRR NCY IND MNITY US$loans must be repaid with US$and CDN$loans must be repaid with The Borrower shall,at the request of the Bank from time to time,and at CDN$and the Borrower shall Indemnity the Bank for any loss suffered by the Borrower's expense,obtain and provide to the Bank an environmental the Bank if US$loans are repaid with CDN$or vice versa,whether such audit or Inspection report of the property from auditors or inspectors payment is made pursuant to an order of a court or otherwise. acceptable to the Bank. 13,TAXATION ON PAYMENTS The Borrower hereby Indemnifies the Bank,Its officers,directors, All payments made by the Borrower to the Bank will be made free and employees,agents and shareholders,and agrees to hold each of them clear of all present and future taxes(excluding the Bank's Income taxes), harmless from all loss,claims,damages and expenses(including legal withholdings or deductions of whatever nature. It these taxes, and audit expenses)which may be suffered or Incurred in connection with whhhotdings or deductions are required by applicable law and are made, the indebtedness under this Agreement or in connection with the Bank the Borrower,shall,as a separate and Independent obligation,pay to the Security. Bank all additional amounts as shall fully indemnify the Bank from any 10 STANDARD vFNTa OF nFFAI 11 T such taxes,withholdings or deductions. The Bank may accelerate the payment of principal and Interest under any 14_REPRESENTATION committed credit facility hereunder and cancel any undrawn portion of any No representation or warranty or other statement made by the Bank committed credit facility hereunder,at any time after the occurrence of any concerning any of the credit facilities shall be binding on the Bank unless one of the following Events of Default: made by it in writing as a specific amendment to this Agreement. a) Non-payment of principal outstanding under this Agreement when due 15.ADDED COST wi thin 3 Business Days of when due.non-payment interest or fees outstanding under this Agreement If the introduction of or any change in any present or future law,regulation, within b) If any representation,warranty or statement made hereunder or made treaty,official or unofficial directive,or regulatory requirement,(whether or In connection with the execution and delivery of this Agreement or the not having the force of law)or in the interpretation or application thereof, Bank Security is false or misleading at any time. relates to: c) It there is a breach or non-performance or non-observance of any term 1) the imposition or exemption of taxation of payments due to the Bank or condition of this Agreement or the Bank Security and,if such default or on reserves or deemed reserves In respect of the undrawn portion Is capable to being remedied,the default continues unremedied for 5 of any Facility or loan made available hereunder;or, Business Days after the occurrence. Ii) any reserve,special deposit,regulatory or similar requirement against d) If the Borrower,any one of Its subsidiaries,or,if any of the Guarantors assets,deposits,or loans or other acquisition of funds for loans by the makes a general assignment for the benefit of creditors,files or Bank;or, presents a petition,makes a proposal or commits any act of III) the amount of capital required or expected to be maintained by the bankruptcy,or if any action is taken for the winding up,liquidation or Bank as a result of the existence of the advances or the commitment the appointment of a liquidator,trustee in bankruptcy,custodian, made hereunder; curator,sequestrator,receiver or any other officer with similar powers and the result of such occurrence Is,in the sole determination of the Bank, or it a judgment or order shall be entered by any court approving a to Increase the cost of the Bank or to reduce the income received or petition for reorganization,arrangement or composition of or in respect receivable by the Bank hereunder,the Borrower shall,on demand by the of the Borrower,any of Its subsidiaries,or any of the Guarantors or if Bank,pay to the Bank that amount which the Bank estimates will the Borrower,any of Its subsidiaries,or any of the Guarantors is insolvent or declared bankrupt. compensate It for such additional cost or reduction In Income and the 's e) It there exists a voluntary or involuntary suspension of business of the Bank estimate shall be conclusive,absent manifest error. Borrower,any of Its subsidiaries,or any of the Guarantors. Q it action is taken by an encumbrancer against the Borrower, any of Its 16_ or N subsidiaries,or any of the Guarantors to take possession of property The Borrower shall pay,within 5 Business Days following s)Incurred all or enforce proceedings against any assets. fees and expenses(including but not iimited to all legal tees)incurred by g) o any final judgment for the payment of monies is made against the the Bank In connection with the preparation,registration and ongoing Borrower,any of its subsidiaries,or any of the Guarantors and t h not administration of this Agreement and the Bank Security and with the discharged within 30 days from the imposition of such judgment. enforcement of the Bank's rights and remedies under this Agreement or the the Bank Security whether or not any amounts are advanced under the h) If there exists hi event,the effect of which with lapse of time n giving of notice,will constitute an event of default or a default under Agreement.These fees and expenses shall Include,but not f be limited,to any other agreement for borrowed money In excess the Cross Default all outside counsel fees and expenses and all In-house legal fees and Threshold entered Into by the Borrower,any of Its subsidiaries,or any expenses,if In-house counsel are used,and all outside professional of the Guarantors. advisory fees and expenses.The Borrower shall pay Interest on unpaid i) If the Bank Security is not enforceable or if any party to the Bank amounts due pursuant to this paragraph at the Prime Rate plus No per Security shall dispute or deny any liability or any of Its obligations annum. under the Bank Security. J) If,In the Bank's determination,a material adverse change occurs In 17-NON WAIVER the financial condition,business operations or prospects of the Any failure by the Bank to object to or take action with respect to a breach Borrower,any of the Borrower's subsidiaries,or any of the of this Agreement or any Bank Security or upon the occurrence of an Guarantors. Event of Default shall not constitute a waiver of the Banks right to take action at a later date on that breach.No course of conduct by the Bank will 11-A . . RATION give rise to any reasonable expectation which is in any way Inconsistent If the Bank accelerates the payment of principal and Interest hereunder, with the terms and conditions of this Agreement and the Bank Security or the Borrower shall Immediately pay to the Bank all amounts outstanding the Bank's rights thereunder. hereunder,Including without limitation,the amount of unmatured B/As and LIBOR Loans and the amount of all drawn and undrawn L/Gs and L/Cs. All cost to the Bank of unwinding LIBOR Loans and all loss suffered by the Bank in re-employing amounts repaid will be paid by the Borrower. 18. Vln N ,17 OF INn RT nN QR 24_ nEFINITIONS(Cantint The Bank shall record on Its records the amount of all loans made 'Agreement-means the agreement between the Bank and the Borrower hereunder,payments made in respect thereto,and all other amounts set out In the Letter and this Schedule"A"-Standard Terms and becoming due to the Bank under this Agreement. The Bank's records Conditions. constitute,in the absence of manifest error,conclusive evidence of the Business Day"means any day(other than a Saturday or Sunday)that the Indebtedness of the Borrower to the Bank pursuant to this Agreement. Branch/Centre is open for business. The Borrower will sign an Indemnity Agreement for all L/Cs and UGs "Business Plan/Forecast"mans,for any fiscal year,a business plan and Issued by the Bank. financial forecast In respect of the Borrower for such fiscal year,In form reasonably acceptable to the Bank and certified by a senior 19-OTH R AORFFMFNTS officer/representative of the Borrower. This Agreement replaces any previous letter agreements dealing specifically with terms and conditions of the credit facilities described in Branch/Cenfre"means The Toronto-Dominion Bank branch or banking the Letter.Agreements relating to other credit facilities made available by centre noted on the first page of the Letter,or such other branch or centre the Bank continue to apply for those other credit facilities. as may from time to time be designated by the Bank. Face Amount"means,In respect of: 20_ASSIGNMENT (1) a B/A,the amount payable to the holder thereof on its maturity; The Bank may assign or grant participation in all or part of this Agreement or in any loan made hereunder without notice to and without the (II) A L/C or UG,the maximum amount payable to the beneficiary Borrower's consent. specified therein or any other Person to whom payments may be required to be made persuant to such UC or UG. The Borrower may not assign or transfer all or any part of Its rights or Fixed Rate Loan*means any ban drawn down,converted or extended obligations under this Agreement. under a Credit Facility at an Interest rate which Is fixed for a term,Instead 21-R AS OF INFORMATION of referenced to a variable rate such as the Prime Rate. The Borrower hereby Irrevocably authorizes and directs the Borrower's "Inventory Value"means,at any time of determination,the total value accountant,(the"Accountant")to deliver all financial statements and other (based on the lower of cost or market)of the Borrower's inventories that financial Information concerning the Borrower to the Bank and agrees that are subject to the Bank Security(other than(1)those inventories supplied the Bank and the Accountant may communicate directly with each other. by trade creditors who at that time have not been fully paid therefor and would have a right to repossess all or part of such Inventories if the 22_SET-OFF Borrower were then either bankrupt or In receivership,(II)those In addition to and not in limitation of any rights now or hereafter granted Inventories comprising work in process and(III)those inventories that the under applicable law,the Bank may at any time and from time to time Bank may from time to time designate In Its sole discretion)minus the total without notice to the Borrower or any other Person,any notice being amount of any claims,liens or encumbrances on those Inventories having expressly waived by the Borrower,set-off and compensate and apply any or purporting to have priority over the Bank. and all deposits,general or special,time or demand,provisional or final, "Letter"means the letter from the Bank to the Borrower to which this matured or unmatured,in any currency,and any other indebtedness at Schedule"A"- Standard Terms and Conditions is attached. any time owing by the Bank,to or for the credit of or the account of the Borrower against and on account of the indebtedness and liability under "Letter of Credit"or L/C"means,unless specifically limited elsewhere In this Agreement notwithstanding that any of them are contingent or this Agreement,a documentary letter of credit or similar Instrument in form unmatured or in a different currency than the Indebtedness and liability and substance satisfactory to the Bank. under this Agreement. Letter of Guarantee-or VG-means,unless specifically limited elsewhere In this Agreement,a stand-by letter of guarantee or similar Instrument in When applying a deposit in a different currency than the Indebtedness and form and substance satisfactory to the Bank. liability under this Agreement to the Indebtedness and liability under this Agreement,the Bank will convert the deposit to the currency of the "Person"Includes any Individual,sole proprietorship,corporation, Indebtedness and liability under this Agreement using the Bank's noon partnership,joint venture,trust,unincorporated association,association, spot rate of exchange for the conversion of such currency. Institution,entity,party,or government(whether national,federal, provincial,state,municipal,city,county,or otherwise and Including any 2 -MISCIPI I AN o JR Instrumentality,division,agency,body,or department thereof). i) The Borrower has received a signed copy of this Agreement; purchase Money Security interest"means a security interest on an asset ii) If more than one Person,firth or corporation signs this Agreement as which Is granted to a lender or to the setter of such asset in order to the Borrower,each party is jointly and severally liable hereunder,and secure the purchase price of such asset or a loan Inured to acquire such the Bank may require payment of all amounts payable under this asset,provided that the amount secured by the security Interest does not Agreement from any one of them,or a portion from each,but the Bank exceed the cost of the asset and provided that the Borrower provides is released from any of its obligations by performing that obligation to any one of them; written notice to the Bank prior to the creation of the security Interest. iii) Accounting terms will(to the extent not defined in this Agreement)be "Receivable Value"means,at any time of determination,the total value of Interpreted In accordance with accounting principles established from those of the Borrower's trade accounts receivable that are subject to the time to time by the Canadian Institute of Chartered Accountants(or Bank Security other than(1)those accounts there outstanding for 90 days, any successor)consistently applied,and all financial statements and (11)those accounts owing by Persons,firms or corporations affiliated with Information provided to the Bank will be prepared in accordance with the Borrower,(III)those accounts that the Bank may from time to time those principles; designate in its sole discretion,(iv)those accounts subject to any claim, Iv) This Agreement is governed by the law of the Province or Territory liens,or encumbrance having or purporting to have priority over the Bank, where the Branch/Centre Is located. (v)those accounts which are subject to a claim of set-off by the obligor v) Unless stated otherwise,all amounts referred to herein are in under such account,MINUS the total amount of all claims,liens,or Canadian dollars encumbrances on those receivables having or purporting to have priority over the Bank. 24.nFFINITIONS Receivables/inventory Summary*means a summary of the Customer's Capitalized Terms used in this Agreement shalt have the following trade account receivables and Inventories,in form as the Bank may meanings: require and certified by a senior officer/representative of the Borrower. All-In Rate"means the greater of the Interest Rate that the Borrower pays "US$Cquvalent"means,on any date,the equivalent amount in United for Prime Based Loans(which for greater certainty includes the States Dollars after giving effect to a conversion of a specified amount of percent per annum added to the Prime Rate)or the highest Fixed Canadian Dollars to United States Dollars at the Bank's croon spot rate of Rate paid for Fixed Rate Loans. exchange for Canadian Dollars to United States Dollars established by the Bank for the day in question.