Telvent GIT SA Contracts
Sample Business Contracts
Credit Agreement - Telvent Canada Ltd. and LaSalle Business Credit
Loan Forms
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CREDIT AGREEMENT
(Dated: May 2, 2003)
BETWEEN:
--------------------
TELVENT CANADA LTD.
-AND-
LASALLE BUSINESS CREDIT, A DIVISION OF ABN AMRO BANK N.V., CANADA
BRANCH
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BAKER & MCKENZIE
SUITE 2600
255 - 5TH AVENUE S.W.
CALGARY, ALBERTA
T2P 3G6
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TABLE OF CONTENTS
ARTICLE 1
INTERPRETATION............................................................. 1
SECTION 1.1 DEFINITIONS............................................ 1
SECTION 1.2 MEANING OF "CONTROL"................................... 24
SECTION 1.3 PER ANNUM CALCULATIONS................................. 24
SECTION 1.4 CURRENCY............................................... 24
SECTION 1.5 INTEREST ACT (CANADA).................................. 25
SECTION 1.6 APPLICATION OF GENERALLY ACCEPTED ACCOUNTING PRINCIPLES 25
SECTION 1.7 COMPUTATION OF TIME PERIODS............................ 25
SECTION 1.8 SCHEDULES.............................................. 25
ARTICLE 2
THE CREDIT FACILITY........................................................ 26
SECTION 2.1 THE CREDIT FACILITY.................................... 26
SECTION 2.2 MANNER OF BORROWING.................................... 26
SECTION 2.3 PURPOSE................................................ 26
SECTION 2.4 AVAILABILITY OF FACILITY A ADVANCES.................... 26
SECTION 2.5 AVAILABILITY OF FACILITY B ADVANCES.................... 26
SECTION 2.6 DRAWDOWN AND CONVERSION RESTRICTIONS................... 27
SECTION 2.7 NOTICE PERIODS FOR DRAWDOWNS, CONVERSIONS AND
ROLLOVERS.............................................. 27
SECTION 2.8 BANK'S OBLIGATIONS WITH RESPECT TO CANADIAN PRIME RATE
LOANS, BANKER'S ACCEPTANCES, U.S. BASE RATE LOANS AND
LIBOR LOANS............................................ 27
SECTION 2.9 IRREVOCABILITY......................................... 27
SECTION 2.10 CANCELLATION OR REDUCTION OF CREDIT FACILITY........... 27
SECTION 2.11 NATURE OF CREDIT FACILITY.............................. 28
ARTICLE 3
SECURITY ............................................................... 28
SECTION 3.1 GRANT OF SECURITY...................................... 28
SECTION 3.2 INITIAL GUARANTEE SUBSIDIARY........................... 28
SECTION 3.3 GUARANTEES............................................. 28
SECTION 3.4 UNDERTAKING TO GRANT ADDITIONAL SECURITY............... 28
ARTICLE 4
CONDITIONS PRECEDENT TO DRAWDOWNS.......................................... 29
SECTION 4.1 CONDITIONS FOR FIRST DRAWDOWN.......................... 29
4.1.1 Drawdown Notice........................................ 29
4.1.2 Borrower's Constituent Documents....................... 29
4.1.3 Guarantee Subsidiary Constituent Documents............. 29
4.1.4 Borrowing Base Certificate............................. 29
4.1.5 Borrower's January 31, 2003 Unaudited Balance Sheet.... 29
4.1.6 Borrower's March 31, 2003 Unaudited Financial
Statements............................................. 29
4.1.7 Borrower's Officer's Certificate....................... 29
4.1.8 Guarantee Subsidiaries' Officer's Certificate.......... 29
4.1.9 Copy of Purchase Agreement............................. 29
4.1.10 Field Audit............................................ 29
4.1.11 No Change of Ownership or Event of Default............. 29
4.1.12 Borrower's Counsel's Opinion........................... 30
4.1.13 No Litigation.......................................... 30
4.1.14 Cash Management Arrangements........................... 30
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4.1.15 Payment of Fees........................................ 30
SECTION 4.2 SUBSEQUENT DRAWDOWNS................................... 30
4.2.1 Subsequent Drawdown Notices............................ 30
4.2.2 Subsequent Borrower's Representations Certificate...... 30
4.2.3 Subsequent Guarantee Subsidiaries' Representations
Certificate............................................ 30
4.2.4 No Subsequent Change of Ownership or Change of
Ownership.............................................. 30
4.2.5 Amended Constituent Documents.......................... 30
SECTION 4.3 WAIVER................................................. 31
ARTICLE 5
EVIDENCE OF DRAWDOWNS...................................................... 31
SECTION 5.1 ACCOUNT OF RECORD...................................... 31
ARTICLE 6
PAYMENTS OF INTEREST AND FEES.............................................. 31
SECTION 6.1 INTEREST ON CANADIAN PRIME RATE LOANS.................. 31
SECTION 6.2 INTEREST ON U.S. BASE RATE LOANS....................... 31
SECTION 6.3 INTEREST ON LIBOR LOANS................................ 32
SECTION 6.4 NO DEDUCTION ETC....................................... 32
SECTION 6.5 UNUSED LINE FEES AND OTHER FEES........................ 32
SECTION 6.6 LIMIT ON RATE OF INTEREST.............................. 33
ARTICLE 7
ROLLOVERS ................................................................ 33
SECTION 7.1 SELECTION OF INTEREST PERIODS.......................... 33
SECTION 7.2 PARTIAL ROLLOVERS...................................... 33
ARTICLE 8
BANKERS' ACCEPTANCES....................................................... 33
SECTION 8.1 BANKERS' ACCEPTANCES................................... 33
SECTION 8.2 FEES................................................... 33
SECTION 8.3 GENERAL PROVISIONS..................................... 34
SECTION 8.4 DRAWDOWNS.............................................. 35
SECTION 8.5 ROLLOVERS.............................................. 35
SECTION 8.6 CONVERSIONS............................................ 35
SECTION 8.7 ALTERNATIVE BORROWINGS................................. 36
ARTICLE 9
LETTER OF CREDIT FACILITY.................................................. 36
SECTION 9.1 OBLIGATION TO ISSUE LETTERS OF CREDIT.................. 36
SECTION 9.2 TYPES AND AMOUNTS...................................... 37
SECTION 9.3 CONDITIONS............................................. 37
SECTION 9.4 LETTER OF CREDIT FEES.................................. 37
SECTION 9.5 SPECIFIC AMENDMENTS TO THE MASTER LETTER OF
CREDIT AGREEMENT....................................... 38
9.5.1 Bank................................................... 38
9.5.2 Section 1 - Certain Definitions........................ 38
9.5.3 Subsection 2.4 - Representations and Warranties........ 38
9.5.4 Section 7-Making of Payments........................... 38
9.5.5 Section 9 - Events of Default.......................... 39
9.5.6 Section 10 - Security.................................. 39
9.5.7 Subsection 11.5 - Governing Law........................ 39
9.5.8 Subsection 11.14-Jurisdiction.......................... 39
SECTION 9.6 PARAMOUNCY............................................. 39
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ARTICLE 10
CONVERSION OPTIONS......................................................... 39
SECTION 10.1 CONVERSION OPTIONS..................................... 39
ARTICLE 11
REPAYMENT ............................................................... 40
SECTION 11.1 REPAYMENT OF EXCESS OVER CREDIT FACILITY OR BORROWING
BASE................................................... 40
SECTION 11.2 OPTIONAL REPAYMENT OF PRINCIPAL........................ 40
SECTION 11.3 MANDATORY REPAYMENTS OF PRINCIPAL - FACILITY A......... 41
SECTION 11.4 MANDATORY REPAYMENTS OF PRINCIPAL - FACILITY B......... 41
ARTICLE 12
PLACE AND APPLICATION OF PAYMENTS.......................................... 41
SECTION 12.1 PLACE OF PAYMENT OF PRINCIPAL, INTEREST AND FEES....... 41
SECTION 12.2 FUNDS................................................... 41
SECTION 12.3 APPLICATION OF PAYMENTS................................ 42
ARTICLE 13
REPRESENTATIONS AND WARRANTIES............................................. 42
SECTION 13.1 REPRESENTATIONS AND WARRANTIES......................... 42
13.1.1 Corporate Status....................................... 42
13.1.2 Corporate Authority.................................... 42
13.1.3 Guarantee Subsidiary Corporate Status.................. 42
13.1.4 Guarantee Subsidiary Corporate Authority............... 43
13.1.5 Valid Authorization.................................... 43
13.1.6 Validity of Documents and Enforceability............... 43
13.1.7 Approvals.............................................. 43
13.1.8 Tax Examinations....................................... 44
13.1.9 Tax Returns............................................ 44
13.1.10 Taxes Paid............................................. 44
13.1.11 Titles and Liens....................................... 44
13.1.12 Security Documents..................................... 45
13.1.13 Purchase Agreement..................................... 45
13.1.14 Non-Default............................................ 45
13.1.15 Financial Condition.................................... 45
13.1.16 Borrower's Interim Financial Statements................ 45
13.1.17 Pro Forma Financial Statements......................... 45
13.1.18 Securities Activities.................................. 46
13.1.19 Absence of Litigation.................................. 46
13.1.20 Loss Contingencies..................................... 46
13.1.21 No Undisclosed Liabilities............................. 46
13.1.22 Solvency............................................... 47
13.1.23 Capital Structure...................................... 47
13.1.24 Employee Commitments................................... 47
13.1.25 Collective Agreements.................................. 47
13.1.26 Guarantees............................................. 47
13.1.27 Intellectual Property.................................. 47
13.1.28 Insurance.............................................. 51
13.1.29 Environmental Compliance............................... 51
SECTION 13.2 NATURE OF REPRESENTATIONS AND WARRANTIES............... 52
ARTICLE 14
COVENANTS ................................................................ 53
SECTION 14.1 AFFIRMATIVE COVENANTS OF THE BORROWER.................. 53
14.1.1 Punctual Payment....................................... 53
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14.1.2 Conduct of Business.................................... 53
14.1.3 Compliance with Laws................................... 53
14.1.4 Operation in Accordance with Environmental Legislation. 53
14.1.5 Environmental Authorizations........................... 53
14.1.6 Financial Statements and Other Information............. 53
14.1.7 No Default Certificate................................. 55
14.1.8 Compliance with Agreements............................. 56
14.1.9 Taxes.................................................. 56
14.1.10 Insurance.............................................. 56
14.1.11 Use of Proceeds........................................ 56
14.1.12 Maintain Business, Assets and Undertaking.............. 57
14.1.13 Rights of Inspection................................... 57
14.1.14 Notice of Major Change in Ownership or Material Default 57
14.1.15 Discharge Existing Security............................ 57
14.1.16 Registration of Security............................... 57
14.1.17 Further Assurances..................................... 57
SECTION 14.2 FINANCIAL RATIOS AND COVENANTS......................... 58
SECTION 14.3 DETERMINATION AND REPORTING OF BORROWING BASE.......... 58
SECTION 14.4 NEGATIVE COVENANTS OF THE BORROWER..................... 58
14.4.1 Nature of Business..................................... 58
14.4.2 Negative Pledge......................................... 58
14.4.3 Sale of Assets......................................... 58
14.4.4 Dividends.............................................. 59
14.4.5 Distributions of Collateral............................ 59
14.4.6 Distributions of Cash.................................. 59
14.4.7 No Modification to Material Agreement.................. 59
14.4.8 Expenditures........................................... 59
14.4.9 No Dissolution......................................... 59
14.4.10 Indebtedness........................................... 59
14.4.11 Intercompany Loans..................................... 60
14.4.12 Investments............................................ 60
SECTION 14.5 SUCCESSOR CORPORATION.................................. 61
ARTICLE 15
EVENTS OF DEFAULT AND ACCELERATION......................................... 61
SECTION 15.1 EVENTS OF DEFAULT...................................... 61
SECTION 15.2 ACCELERATION........................................... 64
SECTION 15.3 DEFAULT INTEREST....................................... 64
SECTION 15.4 REMEDIES CUMULATIVE AND WAIVERS........................ 65
SECTION 15.5 TERMINATION OF BANK'S OBLIGATIONS...................... 65
ARTICLE 16
CHANGE OF CIRCUMSTANCES.................................................... 65
SECTION 16.1 MARKET DISRUPTION...................................... 65
SECTION 16.2 CHANGE IN LAW.......................................... 66
SECTION 16.3 REPAYMENT OF AFFECTED LOAN............................. 66
SECTION 16.4 ILLEGALITY............................................. 67
ARTICLE 17
COSTS, EXPENSES AND INDEMNIFICATION........................................ 67
SECTION 17.1 COSTS AND EXPENSES..................................... 67
SECTION 17.2 INDEMNIFICATION BY THE BORROWER........................ 68
SECTION 17.3 INTEREST ON UNPAID COSTS AND EXPENSES.................. 69
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ARTICLE 18
GENERAL ...................................................................69
SECTION 18.1 EXCHANGE AND CONFIDENTIALITY OF INFORMATION............ 69
SECTION 18.2 NOTICE................................................. 69
SECTION 18.3 GOVERNING LAW.......................................... 70
SECTION 18.4 CONSENT TO JURISDICTION................................ 71
SECTION 18.5 JUDGMENT CURRENCY...................................... 71
SECTION 18.6 BENEFIT OF THE AGREEMENT............................... 72
SECTION 18.7 ASSIGNMENT AND NOVATION................................ 72
SECTION 18.8 SEVERABILITY........................................... 72
SECTION 18.9 WHOLE AGREEMENT........................................ 72
SECTION 18.10 AMENDMENTS AND WAIVERS................................. 72
SECTION 18.11 FURTHER ASSURANCES..................................... 72
SECTION 18.12 BINDING EFFECT......................................... 73
SECTION 18.13 TIME OF THE ESSENCE.................................... 73
SECTION 18.14 COUNTERPARTS........................................... 73
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CREDIT AGREEMENT
THIS AGREEMENT MADE as of May 2, 2003.
BETWEEN:
TELVENT CANADA LTD., a Corporation, incorporated under
the Laws of Canada, and having an office in the City of
Calgary in the Province of Alberta (herein referred to
as the "BORROWER")
OF THE FIRST PART
- and -
LASALLE BUSINESS CREDIT, A DIVISION OF ABN AMRO BANK
N.V., CANADA BRANCH, a Canadian Branch of a Foreign
Bank, under the Bank Act (Canada), and having an office
in the City of Toronto in the Province of Ontario
(herein referred to as the "BANK")
OF THE SECOND PART
WHEREAS the Borrower has requested the Credit Facility to partially
finance the acquisition cost of the stock of the Borrower by way of
distributions or loans from the Borrower, to Telvent, in an amount up to U.S. $
28,000,000, or the Equivalent Amount in Canadian Dollars. Borrowings under
Facility A will be used for working capital and general corporate purposes and
borrowings under Facility B will be used to finance the Deferred Payment amount
under the Purchase Agreement and for working capital and general corporate
purposes and the Bank has agreed to provide the Credit Facility to the Borrower
on the terms and conditions herein set forth; and
NOW THEREFORE, in consideration of the terms, covenants, conditions
and provisions hereof, given or made by each party hereto, to or in favor of all
or any of the other parties hereto, and other good and valuable consideration
(receipt and sufficiency whereof is hereby acknowledged by each party receiving
the same) the parties hereto mutually covenant and agree as follows.
ARTICLE 1
INTERPRETATION
SECTION 1.1 DEFINITIONS
In this Agreement, unless something in the subject matter or context
is inconsistent therewith:
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"ACCOUNT DEBTOR" means the account debtor or obligor with respect to any of the
Eligible Receivables and/or the prospective purchaser with respect to any
contract right, and/or any Person who enters into or proposes to enter into any
contract or other arrangement with the Borrower or any of the Borrower's
Subsidiaries.
"ADDITIONAL COMPENSATION" has the meaning set out in Section 16.2.
"ADVANCE" means an advance of funds made by the Bank to the Borrower pursuant to
the provisions hereof.
"AFFILIATE" of a Person shall mean any Person directly or indirectly
controlling, controlled by or under common control with such Person and, for the
purpose of this definition, a Person possessing, directly or indirectly, the
right to direct, or cause the direction of, the management and policies of
another Person by contract, through the ownership of voting securities or
otherwise, is deemed to control such other Person.
"AGREEMENT" means this agreement and all amendments made hereto in accordance
with the provisions hereof.
"ALTERNATE LOAN" means a loan referred to in Section 8.7.
"APPLICABLE L/C FEE PERCENTAGE" means the factor for determining the fee to be
charged by the Bank to the Borrower, calculated:
(a) in the case of a standby Letter of Credit, a rate per annum equal to
the following percentages:
APPLICABLE L/C FEE
PERCENTAGE
WHERE TOTAL NET DEBT/EBITDA IS (EXPRESSED AS A PERCENTAGE)
greater than or equal to 2.00 3.25
greater than or equal to 1.50 and less than 2.00 3.00
greater than or equal to 1.00 and less than 1.50 2.50
greater than or equal to 0.50 and less than 1.00 2.00
less than 0.50 1.50
and
(b) in the case of any other Letter of Credit, 0.25 percent of the face
amount of the Letter of Credit at the time of issuance by the Bank.
"ASSOCIATE," when used to indicate a relationship of one Person with another
Person, means:
(a) a Person (the "FIRST PERSON") of which the other Person (the "SECOND
PERSON") beneficially owns or controls, directly or indirectly,
voting securities entitling the
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Second Person to more than 10% of the voting rights attached to
outstanding securities of the First Person; or
(b) any partner of a partnership; or
(c) any trust or estate in which a Person has a substantial beneficial
interest or in respect of which a Person serves as trustee or in a
similar capacity; or
(d) in the case of a Person who is an individual:
(i) that person's spouse or child, or
(ii) any relative of that person or of his spouse who has the same
residence as that person.
"BANKERS' ACCEPTANCE" means a draft in Canadian Dollars drawn by the Borrower,
accepted by the Bank and issued for value pursuant to this Agreement.
"BANKERS' ACCEPTANCE FEE" means a rate per annum equal to the face amount of the
Bankers' Acceptance multiplied by the applicable B.A. Margin as determined
below:
APPLICABLE B.A. MARGIN
WHERE TOTAL NET DEBT/EBITDA IS (EXPRESSED AS A PERCENTAGE)
FACILITY A FACILITY B
greater than or equal to 2.00 3.25 3.75
greater than or equal to 1.50 and less than 2.00 3.00 3.50
greater than or equal to 1.00 and less than 1.50 2.50 3.00
greater than or equal to 0.50 and less than 1.00 2.00 2.50
less than 0.50 1.50 2.00
"BANK" means LaSalle Business Credit, a division of ABN AMRO Bank N.Y., Canada
Branch.
"BANKING DAY" means in respect of a Loan, other than a Libor Loan, a day on
which banks are open for business in Calgary, Alberta, Toronto, Ontario and
Chicago, Illinois and, in respect of a Libor Loan means a day on which banks are
open in the foregoing cities, New York, New York, and London, England and for
all other purposes shall mean a day on which banks are open in Chicago,
Illinois, but does not in any event include a Saturday or a Sunday.
"BASE RATE MARGIN" means an additional amount to be added to the Canadian Prime
Rate or the U.S. Base Rate, as the case may be, for the purposes of calculating
the amount of interest to be paid by the Borrower hereunder, such amount to be
determined as follows:
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APPLICABLE
APPLICABLE BASE CANADIAN PRIME
RATE MARGIN RATE MARGIN
(EXPRESSED AS A (EXPRESSED AS A
WHERE TOTAL NET DEBT/EBITDA IS PERCENTAGE): PERCENTAGE):
greater than or equal to 2.00 0.50 2.00
greater than or equal to 1.50 and less than 2.00 0.25 1.75
greater than or equal to 1.00 and less than 1.50 0.25 1.75
greater than or equal to 0.50 and less than 1.00 0.00 1.50
less than 0.50 0.00 1.50
"BORROWER" means Telvent Canada Ltd.
"BORROWED FUNDS" means with respect to the Borrower and its Subsidiaries,
without duplication, Indebtedness consisting of:
(a) obligations for borrowed money, including, without limitation,
subordinated indebtedness,
(b) obligations representing the deferred purchase price of property or
services rendered, including, without limitation earn-outs and other
similar forms of contingent purchase prices (but excluding accounts
payable arising in the ordinary course of such Person's business
payable on terms customary in the trade),
(c) obligations, whether or not assumed, secured by Liens or payable out
of the revenues from property or assets now or hereafter owned or
acquired by such Person,
(d) obligations which are evidenced by notes, acceptances, other
instruments or drafts drawn pursuant to a corresponding letter of
credit or letter of guarantee, and
(e) Capitalized Lease Obligations.
"BORROWER'S FINANCIAL STATEMENTS" means the financial statements that the
Borrower is required to deliver to the Bank pursuant to Section 14.1.6.
"BORROWER'S 2002 FINANCIAL STATEMENTS" means the Borrower's unaudited
consolidated financial statements as at November 30, 2002 as reviewed by the
Borrower's auditor and Notes thereto.
"BORROWER'S JANUARY 31, 2003 AUDITED BALANCE SHEET" means the Borrower's audited
Balance Sheet as at January 31, 2003 and Notes thereto and the Guarantee
Subsidiary's audited Balance Sheet as at January 31, 2003 and Notes thereto.
"BORROWER'S JANUARY 31, 2003 UNAUDITED BALANCE SHEET" means the Borrower's
unaudited Balance Sheet as at January 31, 2003 and Notes thereto and the
Guarantee Subsidiary's unaudited Balance Sheet as at January 31, 2003 and Notes
thereto.
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"BORROWER'S MARCH 31, 2003 UNAUDITED FINANCIAL STATEMENTS" means the Borrower's
unaudited consolidated financial statements as at March 31, 2003, as prepared by
the Borrower, and Notes thereto. "BORROWER'S PROPERTY" means all lands and
properties owned or occupied by the Borrower or any of its Subsidiaries.
"BORROWING BASE" means the maximum amount in U.S. Dollars, or the Equivalent
Amount in Canadian Dollars that the Borrower is permitted to draw down under the
Credit Facility, being the sum of:
(a) 85% of:
(i) Domestic Receivables, and
(ii) Foreign Receivables which are secured for payment by a letter
of credit:
(A) confirmed by a bank which is acceptable to the Bank, or
(B) issued by a bank which is acceptable to the Bank if the
letter of credit is not confirmed; and
(b) 75% of other Foreign Receivables, to a maximum amount available
under this clause of U.S. $1,000,000, or the Equivalent Amount in
Canadian Dollars; and
(c) 40% of Eligible Inventory.
"BORROWING BASE CERTIFICATE" means an Officer's Certificate containing a
detailed calculation substantially in the form of Schedule Q hereto, of the
Borrowing Base.
"CANADIAN DOLLARS" and "CDN. $" mean the lawful money of Canada.
"CANADIAN PRIME RATE" means the prime lending rate of the Bank, such rate being
a variable per annum reference rate of interest, as announced and adjusted by
the Bank from time to time, for Canadian Dollar loans made by the Bank in
Canada.
"CANADIAN PRIME RATE LOAN" means an Advance in, or Conversion into, Canadian
Dollars made by the Bank to the Borrower on which the Borrower has specified
that interest is to be calculated by reference to the Canadian Prime Rate.
"CAPITAL EXPENDITURES" means capital expenditures as that expression is defined
by GAAP.
"CAPITALIZED LEASE" means, with respect to any Person, any lease of property by
such Person as lessee which would be capitalized on a balance sheet of such
Persons prepared in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means with respect to any Person, the amount of
the obligations of such Person under Capitalized Leases which would be
capitalized on a balance sheet of such Person prepared in accordance with GAAP.
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"CAPITAL STOCK" means:
(a) in the case of a corporation, shares in the capital of the
corporation,
(b) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however designated) of share capital,
(c) in the case of a partnership, partnership interests (whether general
or limited), and
(d) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"CASH EQUIVALENTS" means:
(a) marketable direct obligations issued or unconditionally guaranteed
by the United States government, or the Government of Canada and
backed by the full faith and credit of the United States government,
or the Government of Canada;
(b) domestic and Eurodollar certificates of deposit and time deposits,
bankers' acceptances and floating rate certificates of deposit
issued by any commercial bank organized under the laws of the United
States, any state thereof, the District of Columbia, the laws of
Canada or any province thereof, any foreign bank, or its branches or
agencies, the long-term indebtedness of which institution at the
time of acquisition is rated A- (or better) by S&P or A3 (or better)
by Moody's, and which certificates of deposit and time deposits, in
currencies other than U.S. Dollars, are fully protected against
currency fluctuations for any such deposits with a term of more than
ninety (90) days;
(c) shares of money market, mutual or similar funds having assets in
excess of U.S. $100,000,000, or the Equivalent Amount in Canadian
Dollars and the investments of which are limited to (i) investment
grade securities (i.e., securities rated at least Baa by Moody's or
at least BBB by S&P) and (ii) commercial paper of United States and
foreign banks and bank holding companies and their subsidiaries and
United States and foreign finance, commercial industrial or utility
companies which, at the time of acquisition, are rated A-1 (or
better) by S&P or P-l (or better) by Moody's (all such institutions
being, "QUALIFIED INSTITUTIONS"); and
(d) commercial paper of Qualified Institutions; provided that the
maturities of such Cash Equivalents shall not exceed three hundred
sixty-five (365) days from the date of acquisition thereof.
"CHICAGO TIME" means local time in Chicago, Illinois on the date on which a
determination is made or an event is to occur.
"CLOSING DATE" means the date on which all conditions precedent to the initial
Advance hereunder have been satisfied or waived and at which time the initial
Advance has been made.
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"COLLATERAL" means any and all property, assets and undertakings of the
Borrower, and each Subsidiary, as the case may be, securing the Obligations as
more particularly described in the Security Documents.
"COMPUTATION PERIOD" means:
(a) in respect of the Total Net Debt to EBITDA ratio in subsection
14.2.1, the annualized amounts based on results for the periods
between the Closing Date and:
(i) June 30, 2003,
(ii) September 30, 2003,
(iii) December 31, 2003,
(iv) March 31, 2004, and
thereafter a period of four consecutive Quarters, ending on the last
day of the last Quarter for which the determination is being made.
(b) in respect of the Fixed Charge Ratio pursuant to subsection 14.2.2,
the periods from Closing Date until:
(i) June 30, 2003,
(ii) September 30, 2003,
(iii) December 31, 2003,
(iv) March 31, 2004, and
thereafter a period of four consecutive Quarters, ending on the last
day of the last Quarter for which the determination is being made.
"CONSTITUENT DOCUMENTS" means as applied to any Person, the certificate of
incorporation, articles of incorporation or certificate of formation, by-laws or
operating agreement and any other applicable organizational document of such
Person.
"CONTROL" has the meaning set out in Section 1.2.
"CONVERSION" means a conversion of a Loan pursuant to Section 10.1.
"CONVERSION DATE" means the date specified by the Borrower as being the date on
which the Borrower has elected to convert one type of Loan into another type of
Loan and which shall be a Banking Day.
"CONVERSION NOTICE" means a notice substantially in the form annexed hereto as
Schedule B.
"CREDIT FACILITY" means the credit facility consisting of Facility A and
Facility B.
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"DISCOUNT PROCEEDS" means the net cash proceeds from the sale of the Bankers'
Acceptance pursuant to Article 8.
"DOCUMENTS" means this Agreement and all certificates and other documents
delivered or to be delivered to the Bank pursuant hereto or thereto and, when
used in relation to any Person, the term "DOCUMENTS" shall mean and refer to the
documents executed and delivered by such Person.
"DOMESTIC RECEIVABLE" means an Eligible Receivable of the Borrower or any
Subsidiary, payable by an Account Debtor resident in Canada or the United
States.
"DRAWDOWN" means an Advance of a Canadian Prime Rate Loan, a U.S. Base Rate
Loan, a Libor Loan or the issuance of Bankers' Acceptances, as the case may be.
"DRAWDOWN DATE" means the date on which a Drawdown is made by the Borrower
pursuant to the provisions hereof and which shall be a Banking Day.
"DRAWDOWN NOTICE" means a notice substantially in the form annexed hereto as
Schedule A.
"EBITDA" means, for any period, on a consolidated basis for the Borrower and its
Subsidiaries, the sum of the amounts for such period, without duplication,
calculated in each case in accordance with GAAP, of:
(i) Net Income, plus
(ii) Interest Expense to the extent deducted in computing Net Income,
plus
(iii) charges against income for foreign, federal, provincial, state and
local cash taxes to the extent deducted in computing Net Income,
plus
(iv) depreciation expense to the extent deducted in computing Net Income,
plus
(v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in
computing Net Income, less
(vi) gains on cash and non-cash items, plus
(vii) non-cash losses.
"ELIGIBLE INVENTORY" means inventory of the Borrower located in Canada or the
United States and which is raw materials or finished goods in good condition,
merchantable, not deemed by the Bank to be slow moving or stale and free and
clear of all Liens.
"ELIGIBLE RECEIVABLE" means a Receivable owed from any Person (including that
Person's Affiliates and Associates) to the Borrower or any Subsidiary and which
on the applicable Drawdown Date, Rollover Date or Conversion Date, as the case
may be, is recorded on the books of account of the Borrower, Provided However, a
Receivable shall not be an "ELIGIBLE RECEIVABLE" if the Bank, in its reasonable
discretion determines that it is a Receivable:
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(a) with respect to which more than 90 days have elapsed since the date
of the original invoice therefore;
(b) of such Person in respect of whom more than 25% in the aggregate
amount of all Receivables owed to the Borrower by such Person, are
in excess of 90 days from the respective dates of original invoice;
(c) with respect to which Receivable (or any other Receivable due from
such Account Debtor), in whole or in part, a check, promissory note,
draft, trade acceptance or other instrument for the payment of money
has been received, presented for payment and returned uncollected
for any reason;
(d) with respect to which any one or more of the following events has
occurred to the Account Debtor on such Receivable: (i) death or
judicial declaration of incompetency of an Account Debtor who is an
individual; (ii) the filing by or against the Account Debtor of a
request or petition for liquidation, reorganization, arrangement,
adjustment of debts, adjudication as a bankrupt, winding-up, or
other relief under the bankruptcy, insolvency, or similar laws of
Canada or the United States, any state or territory thereof, or any
foreign jurisdiction, nor or hereafter in effect; (iii) the making
of any general assignment by the Account Debtor for the benefit of
creditors; the appointment of a receiver or trustee for the Account
Debtor or for any of the assets of the Account Debtor, including,
without limitation, the appointment of or taking possession by a
"CUSTODIAN", as defined in the U.S. Bankruptcy Code; (iv) the
institution by or against the Account Debtor of any other type of
insolvency proceeding (under the bankruptcy laws of Canada or the
United States or otherwise) or of any formal or informal proceeding
for the dissolution or liquidation of, settlement of claims against,
or winding up of affairs of, the Account Debtor; (v) the sale,
assignment, or transfer of all or any material part of the assets of
the Account Debtor; the nonpayment generally by the Account Debtor
of its debts as they become due; or the cessation of the business of
the Account Debtor as a going concern; or (vi) such Account Debtor
becomes unlikely to pay the Receivable due to financial inability,
as determined by the Bank in the exercise of its good faith
reasonable judgment;
(e) owed by an Account Debtor which is an Affiliate or employee of the
Borrower or any of its Subsidiaries;
(f) if the Account Debtor thereon has disputed liability or made any
claim with respect to any other Receivable due from such Account
Debtor (including claims of setoff or recoupment); but in each such
case only to the extent of such dispute or claim;
(g) owed by the government of Canada or any Province thereof or the
United States, any state or territory thereof, or any foreign
jurisdiction, or by any state, political subdivision, department,
agency or other instrumentality of any of the foregoing and as to
which the Bank determines that its Lien therein is not perfected,
but for
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<PAGE>
greater certainty, this subsection does not include Receivables owed
by any municipality or public corporation;
(h) which represents a sale on a bill-and-hold, guaranteed sale, sale
and return, sale on approval, consignment, or other repurchase or
return basis;
(i) which arises out of a sale not made in the ordinary course of the
applicable entity's business;
(j) with respect to which the goods giving rise to such Receivable have
not been shipped and delivered to and accepted by the Account Debtor
or the services giving rise to such Receivable have not been
performed, and, if applicable, accepted by the Account Debtor, or
the Account Debtor revokes its acceptance of such goods or services;
(k) which arises out of an enforceable contract or order which, by its
terms, forbids, restricts or makes void or unenforceable the
granting of a Lien by the Borrower to the Bank with respect to such
Receivable; or
(1) such other reasonable criteria of ineligibility, established by the
Bank, as a result of information obtained in connection with any
field audit of the Borrower.
If any Receivable at any time ceases to be an Eligible Receivable, then such
Receivable shall promptly be excluded from the calculation of Eligible
Receivables. Notwithstanding the foregoing, the Bank may elect, in its sole
discretion, to treat an Receivable as an Eligible Receivable even though it
meets one or more of the applicable criteria for ineligibility.
"ENVIRONMENTAL CONTAMINATION" means any discharge, abandonment, addition,
deposit, dispersal, disposal, dumping, emitting, emptying, escape, leach, leak,
migration, pouring, pumping, release or spill, (accidental or otherwise) of a
hazardous material in violation of any environmental legislation originating on
the Borrower's Property and capable of causing material injury to any Person or
to the atmosphere, soil, surface or subsurface water, property, animal or plant
life.
"ENVIRONMENTAL LEGISLATION" means any and all statutes, rules, regulations,
ordinances, standards, orders, bylaws, decisions, permits, licences,
authorizations or consents of any federal, provincial, state, municipal or
regulatory authority in force from time to time which regulate the environment,
occupational safety, health, product liability or transportation, or impose a
penalty or civil liability on any Person responsible for environmental
contamination and which are applicable to the Borrower's or its Subsidiaries
business, assets or undertaking, and includes any prosecution, order, decision,
notice, direction, report, recommendation or request issued, rendered or made by
any governmental authority in connection with environmental legislation.
"EQUITY INTEREST" means Capital Stock and all warrants, options or other rights
to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock), but excluding any shares ownership,
restricted shares, warrants, shares option, or shares appreciation rights plans,
"phantom" shares plans, deferred compensation arrangements, employment
agreements, non-competition agreements, subscription and shareholders agreements
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<PAGE>
and other incentive and bonus plans and similar arrangements made in connection
with the retention of directors, executives, officers or employees of the
Borrower and its Subsidiaries, or obligations or payments under any such
excluded item.
"EQUIVALENT AMOUNT" means, on any date, the equivalent amount in Canadian
Dollars or United States Dollars, as the case may be, after giving effect to a
conversion of a specified amount of Canadian Dollars to United States Dollars or
of United States Dollars to Canadian Dollars, as the case may be, at the noon
rate as quoted by the Bank of Canada or, if not so quoted, the simple average of
the spot rates quoted for wholesale transactions by LaSalle Bank National
Association, in Chicago, Illinois at approximately noon (Toronto time) on that
date in accordance with their normal practice.
"EVENT OF DEFAULT" means any of the events described in Section 15.1.
"EXCESS CASH FLOW" means without duplication, an amount, for the Borrower and
its consolidated Subsidiaries, equal to:
(a) EBITDA for such period, minus
(b) Cash Interest Expense for such period, minus
(c) charges against income for foreign, federal, state and local taxes
paid in cash for such period, minus
(d) scheduled amortization of the principal portion of the Term Loans,
prepayments of the Term Loans and scheduled amortization of the
principal portion of all other Borrowed Funds of the Borrower and
its Subsidiaries during such period; minus
(e) permitted cash Capital Expenditures paid during such period,
commencing with the fiscal year ending December 31, 2002, plus
(minus)
(f) reductions (additions) to Working Capital for such fiscal year
exclusive of any change to Working Capital attributable to assets
acquired in any acquisition permitted by the Bank, as determined by
the Bank in its reasonable judgment,
"FACILITY" means Facility A or Facility B and "FACILITIES" means Facility A and
Facility B.
"FACILITY A" means the secured revolving credit facility in the maximum
aggregate principal amount not to exceed U.S. $8,000,000 or the Equivalent
Amount in Canadian Dollars to be made available to the Borrower by the Bank in
accordance with the provisions hereof, subject to any reduction in accordance
with the provisions hereof.
"FACILITY B" means the secured non-revolving delayed draw term Canadian Dollar
credit facility in the maximum aggregate principal amount not to exceed U.S.
$5,500,000 or the Equivalent Amount in Canadian Dollars which is to be made
available to the Borrower by the Bank, as determined on the Drawdown Date, in
accordance with the provisions hereof, subject to any reduction in accordance
with the provisions hereof.
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<PAGE>
"FIXED CHARGE COVERAGE RATIO" means with respect to any Computation Period, the
ratio of:
(a) EBITDA, less
(b) unfinanced Capital Expenditures, divided by the sum of:
(c) amounts in respect of principal due on Borrowed Funds, plus
(d) all accrued but unpaid interest on Borrowed Funds, plus
(e) all cash dividends paid, plus
(f) all cash taxes paid.
"FOREIGN RECEIVABLE" means an Eligible Receivable of the Borrower, payable by an
Account Debtor not resident in Canada or the United States.
"GAAP" means generally accepted accounting principles in Canada in respect of
entities operating in Canada ("CANADIAN GAAP") and generally accepted accounting
principles in the United States in respect of entities operating in the United
States of America or its territories and possessions ("U.S. GAAP"), as the case
may be, as in effect at the date hereof.
"GENERAL SECURITY AGREEMENT" means the general security agreement, in form and
substance satisfactory to the Bank, to be entered into between the Borrower and
the Bank, pursuant to which the Borrower will create and grant a security
interest in all of the present and after acquired personal property of the
Borrower, as those expressions are defined by the Personal Property Security Act
(Alberta) and equivalent legislation in any other jurisdiction in which the
Borrower carries on its business or in which it owns assets as security for its
Obligations hereunder.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
provincial, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
authority or functions of or pertaining to government, including any authority
or other quasi-governmental entity established to perform any of such functions.
"GUARANTEE" means a guarantee of the Obligations, substantially in the form of
Schedule G hereto.
"GUARANTEE COLLATERAL SECURITY AGREEMENT" means the general security agreement,
in form and substance satisfactory to the Bank, to be entered into between the
Guarantee Subsidiary and the Bank, pursuant to which the Guarantee Subsidiary
will create and grant a security interest in all of the present and after
acquired personal property of the Borrower, as those expressions are defined by
the Uniform Commercial Code in any other jurisdiction in which the Guarantee
Subsidiary carries on its business or in which it owns assets, as collateral
security for the Guarantee.
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<PAGE>
"GUARANTEE SUBSIDIARY" means a Subsidiary, which has executed and delivered a
Guarantee to the Bank and shall initially include Telvent U.S.
"GUARANTOR" means each Person which guarantees or otherwise acts as surety for
the performance of the Obligations, including without limitation the Guarantee
Subsidiary hereunder together with their respective successors and assigns.
"HAZARDOUS MATERIALS" means any substance, class of substances or mixture of
substances that is entering or capable of entering the environment in a quantity
or concentration or under conditions that may constitute an immediate or
long-term adverse effect, or which may be hazardous, toxic, injurious, or
dangerous to persons, property, air, land, water, flora, fauna or wildlife, and
includes a substance or thing containing such a substance, including, without
limiting the generality of the foregoing, any contaminants, pollutants,
dangerous substances, liquid wastes, industrial wastes, hauled liquid wastes,
toxic substances, hazardous wastes, hazardous materials or hazardous substances
as defined in or pursuant to any environmental legislation pursuant thereto.
"INDEBTEDNESS" means, with respect to the Borrower and its Subsidiaries,
indebtedness created, incurred, assumed or guaranteed by that Person which
would, in accordance with GAAP, be classified upon a balance sheet (and the
notes thereto) of that Person as liabilities (absolute or contingent), including
for greater certainty all principal amounts and other amounts (other than
interest) due hereunder; Provided However, that contingent liabilities under
guarantees for borrowed money, to the extent of the lesser of the amount of the
guarantee and the amount of the debt outstanding to which the guarantee relates,
or for amounts that may be paid under a letter of credit issued for the account
of that Person, and other contingent liabilities shall be included as
Indebtedness only to the extent of any reserve or other amount that has been
provided on the Borrower's Financial Statements in respect of the same.
"INTELLECTUAL PROPERTY" means:
(a) all inventions (whether patentable or unpatentable and whether or
not reduced to practice) and all patent rights in same including
patents and patent applications, together with all rights of
priority and all reissuances, continuations, continuations-in-part,
divisions, revisions, extensions and reexaminations thereof
("PATENTS");
(b) all trademarks, service marks and other marks, trade dress,
corporate names, business names, trade names, and other trade
rights, all whether or not registrable or the subject of
applications for registration(s), including all goodwill associated
therewith and all applications, registrations and renewals in
connection therewith ("TRADEMARKS");
(c) all copyrights in the Works (defined below), and all applications,
registrations, and renewals in connection therewith ("COPYRIGHTS");
(d) all confidential information including as may relate to any of the
following: improvements thereto, trade secrets and confidential
business information, ideas, research and development, know-how,
formulas, compositions, manufacturing
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<PAGE>
and production processes and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and
cost information, and business and marketing plans and proposals
("TRADE SECRETS");
(e) all computer software programs, scripts, interfaces, program
specifications, charts, procedures, source codes (including
annotations), object codes, diagnostic and other routines and report
layouts and formats, record file layouts, diagrams, functional
specifications and narrative descriptions and flow charts
("SOFTWARE");
(f) all domain names, uniform resource locators and other names and
locators associated with the Internet;
(g) all databases, database layouts and data collections including all
rights therein ("DATABASES");
(h) all works, including literary, artistic, musical, dramatic and audio
visual works, performer's performances, sound recordings and
broadcast signals, all whether or not registered or registrable
(collectively, with Software and Databases, herein and hereinafter
"WORKS");
(i) all moral rights or the benefits of all waivers of moral rights, in
the Works ("MORAL RIGHTS");
(j) all mask works and mask work rights;
(k) all industrial designs, whether or not patentable or registrable,
patented or registered or the subject of applications for
registration or patent, including all design patents, design
registrations, pending applications and rights to file applications,
including all rights of priority and rights in continuation,
continuations-in-part, divisions, re-examinations, and reissues
("DESIGN RIGHTS");
(1) all integrated circuit topographies and integrated circuit
topography products, whether or not registrable, registered or
pending, including registrations, pending applications, and rights
to file for any of same ("TOPOGRAPHY RIGHTS");
(m) all other intellectual and industrial property including all rights
to enforce rights in clauses 1.1.1(a) to 1.1.1(1) ("OTHER
INTELLECTUAL PROPERTY RIGHTS").
"INTELLECTUAL PROPERTY ASSIGNMENTS" means those assignments of the Borrower's
and its Subsidiaries' rights to certain Patents and Trade Marks, and the
pledging of those assignments to the Bank as security for the Obligations of the
Borrower hereunder.
"INTEREST EXPENSE" means, for any period, the total cash interest expense of the
Borrower and its consolidated Subsidiaries, (including the interest component of
Capitalized Leases, commitment and letter of credit fees and the discount or
implied interest component (or other fees or charges in securitization
transactions) of Off-Balance Sheet Liabilities), Bankers' Acceptance Stamping
Fees and net payments (if any) pursuant to hedging arrangements relating to
interest rate protection, all as determined in conformity with GAAP.
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<PAGE>
"INTEREST PAID" means, for any specified period, the aggregate of (i) net
interest actually paid by the Borrower and its Subsidiaries on Borrowed Funds,
whether capitalized or Expanses, included on the Borrower's Financial
Statements; and (ii) dividends paid by the Borrower on its outstanding preferred
shares included on the Borrower's Financial Statements.
"INTEREST PAYMENT DATE" means:
(a) with respect to each Canadian Prime Rate Loan and each U.S. Base
Rate Loan, on August 1, November 1, February 1 and May 1 in each
year, commencing on August 1, 2003; and
(b) with respect to each Libor Loan, the last day of each applicable
Interest Period and, if any Interest Period is longer than three
months the last Banking Day of each such three month period during
such Interest Period.
"INTEREST PERIOD" means,
(a) with respect to each Canadian Prime Rate Loan and each U.S. Base
Rate Loan, the period commencing on the applicable Drawdown Date,
Rollover Date or Conversion Date, as the case may be, and
terminating on the date ultimately selected by the Borrower
hereunder for the Conversion of such Loan into another type of Loan
or the repayment of such Loan;
(b) with respect to each Libor Loan, the period selected by the Borrower
and being of 30 days, 60 days, 90 days or 180 days duration
commencing on the Drawdown Date, Rollover Date or Conversion Date of
such Loan; and
(c) with respect to the Bankers' Acceptance, the period selected by the
Borrower hereunder and being of 30 to 180 days duration commencing
on the Drawdown Date, Rollover Date or Conversion Date of such Loan,
or such other duration as is determined by the Bank;
Provided That, the last day of each Interest Period shall be a
Banking Day and if the last day of an Interest Period selected by
the Borrower is not a Banking Day the Borrower shall be deemed to
have selected an Interest Period the last day of which is the
Banking Day next following the last day of the Interest Period
otherwise selected; and Further Provided, an Interest Period may not
extend beyond the maturity date of the Facility to which it relates.
"INTEREST RATE" means in respect of any Loan, the rate at which interest is
calculated pursuant to the terms hereof, as the case may be.
"INVESTMENT" means, with respect to any Person (the "FIRST PERSON"):
(a) any purchase or other acquisition by the First Person of any
Indebtedness, Equity Interests or other securities, or of a
beneficial interest in any Indebtedness, Equity Interests or other
securities, issued by any other Person (the "SECOND PERSON"),
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<PAGE>
(b) any purchase by the First Person of all or substantially all of the
assets of a business (whether of a division, branch, unit operation,
or otherwise) conducted by the Second Person, and
(c) any loan, advance (other than deposits with financial institutions
available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred
in the ordinary course of business) or capital contribution by the
First Person to the Second Person, including all Indebtedness owing
to the First Person arising from a sale of property by the Second
Person other than in the ordinary course of its business.
"JUDGMENT CONVERSION DATE" has the meaning set out in Section 18.5.
"JUDGMENT CURRENCY" has the meaning set out in Section 18.5.
"LIBOR LOAN" means an Advance in, or Conversion into, United States Dollars made
by the Bank to the Borrower on which the Borrower has specified that interest is
to be calculated by reference to the Libor Rate.
"LIBOR MARGIN" means an additional amount to be added to the Libor Rate for the
purposes of calculating the amount of interest to be paid by the Borrower
hereunder, such amount to be determined as follows:
APPLICABLE LIBOR RATE MARGIN
WHERE TOTAL NET DEBT/EBITDA IS (EXPRESSED AS A PERCENTAGE)
FACILITY A FACILITY B
greater than or equal to 2.00 3.25 3.75
greater than or equal to 1.50 and less than 2.00 3.00 3.50
greater than or equal to 1.00 and less than 1.50 2.50 3.00
greater than or equal to 0.50 and less than 1.00 2.00 2.50
less than 0.50 1.50 2.00
"LIBOR RATE" means, for each Interest Period applicable to a Libor Loan, the
rate of interest per annum, expressed on the basis of a 360 day year, at which
United States Dollars are quoted by the Bank for one, two, three and six month
U.S. Dollar deposits in the London interbank market at approximately 11:00 a.m.
(London, England time) on the third Banking Day prior to the first day of such
Interest Period, in an amount similar to such Libor Loan and for a period
comparable to such Interest Period.
"L/C LIABILITIES" has the meaning given to the expression "LIABILITIES" in the
Master Letter of Credit Agreement.
"L/C OBLIGATIONS" means without duplication, an amount equal to the sum of:
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<PAGE>
(a) the aggregate of the amount then available for drawing under each of
the issued and outstanding Letters of Credit,
(b) the amount equal to the stated amount of all drafts drawn on the
Bank pursuant to a corresponding Letter of Credit, which drafts have
been accepted by the Bank,
(c) the aggregate outstanding amount of all Reimbursement Obligations at
such time, and
(d) the aggregate amount equal to the stated amount of all Letters of
Credit requested by the Borrower but not yet issued, unless the
request for an unissued Letter of Credit has been denied.
"LETTER OF CREDIT" means a letter of credit to be issued by the Bank pursuant to
Section 9.1 hereof.
"LIEN" means any mortgage, pledge, hypothec, assignment, transfer, security
interest, encumbrance, lien or charge of any kind (including any agreement to
give any of the foregoing or any conditional sale or other title retention
agreement), Capitalized Lease or any other type of preferential arrangement.
"LOAN" means a Canadian Prime Rate Loan, U.S. Base Rate Loan, Libor Loan or
Bankers' Acceptance made to the Borrower.
"MAJOR CHANGE IN OWNERSHIP" means, except where approved by the Bank, any
transaction or series of transactions whereby Control of the Borrower shall as a
result be held by a Person or group of Persons, and their respective Affiliates
and Associates, acting together, other than one or more of the Persons their
respective and Affiliates and Associates, who are the shareholders of the
Borrower at the date hereof.
"MASTER LETTER OF CREDIT AGREEMENT" means an agreement providing for the
application for and issue of Letters of Credit, otherwise in accordance with the
terms and conditions of this Agreement, by the Bank for the benefit of the
Borrower on terms and conditions as set forth in Schedule E hereto.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (i) the business,
assets, condition (financial or otherwise), operations, performance, properties,
results of operations or prospects of the Borrower, any Guarantor, or the
Borrower and its Subsidiaries in each case taken as a whole, (ii) the ability of
the Borrower, any Guarantor or the Borrower and its Subsidiaries to perform
their respective obligations under this Agreement or the Security Documents,
(iii) the ability of the Bank to enforce the Obligations, (iv) the validity or
enforceability of this Agreement, the Security Documents to which the Borrower
or any Guarantor is a party, or the rights or remedies of the Bank hereunder and
thereunder, (v) the value of a Substantial Portion of the Collateral, or (vi)
the perfection or priority of the Bank's Liens with respect to a Substantial
Portion of the Collateral.
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<PAGE>
"NET INCOME" means, for any period, an amount equal to the net earnings (or
loss) after taxes of the Borrower and its Subsidiaries on a consolidated basis
for such period taken as a single accounting period determined in conformity
with GAAP.
"OBLIGATIONS" means the obligations of the Borrower to repay the principal of,
and to pay interest on, the Loans, all issued Bankers' Acceptances, all L/C
Obligations and to pay all fees and other amounts from time to time due from the
Borrower to the Bank hereunder.
"OFF-BALANCE SHEET LIABILITIES" means, with respect to any Person, (i) any
repurchase obligation or liability of such Person or any of its Subsidiaries
with respect to Receivables sold by such Person or any of its Subsidiaries, (ii)
any liability of such Person or any of its Subsidiaries under any sale and
leaseback transaction which does not create a liability on the consolidated
balance sheet of such Person (iii) any liability of such Person or any of its
Subsidiaries under any financing lease or so-called "synthetic lease" or "tax
ownership operating lease" transaction, or (iv) any obligations of such Person
or any of its Subsidiaries arising with respect to any other transaction which
is the functional equivalent of or takes the place of borrowing but which does
not constitute a liability on the consolidated balance sheet of such Person and
its Subsidiaries.
"OFFICER'S CERTIFICATE" means a certificate signed by any one of the President,
a Vice-President, the Treasurer or the Controller of the Borrower, setting forth
the information or affirmations required for the purposes thereof.
"PERMITTED ENCUMBRANCES" means in respect of any particular asset of either
Borrower or any of its Subsidiaries, any of the following Liens, or restrictions
as to sale or other disposition:
(a) undetermined or inchoate Liens and charges incidental to
construction, maintenance or operations which have not at the time
been filed pursuant to law and any Liens and charges incidental to
construction, maintenance or operation which, although filed, relate
to obligations not overdue or to obligations the validity of which
is being contested in good faith if the Borrower or the Subsidiary
shall have made on its books provision reasonably deemed by it to be
adequate therefor;
(b) Liens for taxes and assessments for the then current year, Liens for
taxes and assessments not at the time overdue, Liens securing
workers' compensation assessments and Liens for specified taxes and
assessments which are overdue but the validity of which is being
contested at the time in good faith, if the Borrower or the
Subsidiary shall have made on its books provision reasonably deemed
by it to be adequate therefor;
(c) liens for the excess of the amount of any taxes, rates, assessments
or governmental charges or levies for which final assessments have
not been received over and above the amount of such taxes, rates,
assessments or governmental charges or levies as estimated by the
Borrower or its Subsidiaries;
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<PAGE>
(d) pledges or deposits to secure obligations under workers'
compensation or similar legislation, including Liens or judgments
thereunder which are not currently dischargeable;
(e) liens created or resulting from any litigation or legal proceeding
which is currently being contested in good faith by appropriate
proceedings diligently conducted;
(f) liens or any rights of distress reserved in or exercisable under any
lease for rent and for compliance with the terms of such lease;
(g) easements, rights-of-way or similar rights in land granted to or
reserved by other Persons which in the aggregate do not materially
impair the usefulness of such land in the business of the Borrower
or any of its Subsidiaries;
(h) all rights reserved to or vested in any governmental body by the
terms of any lease, license, franchise, grant or permit held by the
Borrower or its Subsidiaries or by any statutory provision to
terminate any such lease, license, franchise, grant or permit or to
require annual or other periodic payments as a condition of the
continuance thereof or to distrain against or to obtain a Lien on
any property or asset of the Borrower or its Subsidiaries in the
event of failure to make such annual or other periodic payments;
(i) encumbrances resulting from the deposit of cash or obligations as
security when the Borrower or its Subsidiaries is required to do so
by governmental or other public authority or by normal business
practice in connection with contracts, licences or tenders or
similar matters in the ordinary course of business and for the
purpose of carrying on the same, or to secure workers' compensation,
surety or appeal bonds or to secure costs of litigation when
required by law;
(j) public and statutory obligations which are not due or delinquent,
and security 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 operations of the Borrower
or its Subsidiaries;
(k) pledges or deposits to secure performance in connection with bids,
tenders, contracts (other than contracts for the payment of money)
or leases on real property to which the Borrower or any of its
Subsidiaries is a party;
(1) purchase money Liens, conditional sales agreements or other title
retention mortgage, charge, hypothec, pledge, Lien or other
encumbrance on a property or asset created, issued or assumed to
secure the unpaid purchase price in respect of such property or
asset ("PURCHASE MONEY MORTGAGES") (Provided That during the term of
this Agreement, the Borrower and its Subsidiaries, collectively,
shall only be permitted to have outstanding Purchase Money Mortgages
in respect of Capital Assets for which the aggregate of the unpaid
purchase price and Capitalized Lease Obligations, as the case may
be, do not exceed U.S. $1,000,000 or the Equivalent Amount in
Canadian Dollars, at anytime and from time to time);
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<PAGE>
(m) any lease or sublease granted by the Borrower or its Subsidiaries in
the normal course of business, Provided That, any such lease or
sublease will not materially adversely affect the enjoyment by the
Borrower or its Subsidiaries of the assets of the Borrower and its
Subsidiaries taken as a whole in the conduct of their business;
(n) title defects or irregularities which are of a minor nature and in
the aggregate will not materially impair the use of the property for
the purposes for which it is held by the Borrower or its
Subsidiaries; and
(o) the Lien of the Security Documents; and
(p) Liens identified as or associated with Permitted Existing
Indebtedness and Permitted Refinancing Indebtedness.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Borrower and its
Subsidiaries identified as such on Schedule O to this Agreement.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal, refinancing
or extension of any Borrowed Funds, permitted under Section 14.4.10 that:
(a) does not exceed the aggregate principal amount (plus accrued
interest and any applicable premium and associated fees and
expenses) of the Borrowed Funds being replaced, renewed, refinanced
or extended,
(b) does not have a Weighted Average Life to Maturity at the time of
such replacement, renewal, refinancing or extension that is less
than the Weighted Average Life to Maturity of the Borrowed Funds
being replaced, renewed, refinanced or extended,
(c) does not rank at the time of such replacement, renewal, refinancing
or extension senior to the Borrowed Funds being replaced, renewed,
refinanced or extended, and
(d) does not contain terms (including, without limitation, terms
relating to security, amortization, interest rate, premiums, fees,
covenants, subordination, events of default and remedies), taken as
a whole, materially less favorable to the Borrower, its Subsidiaries
or the Bank than those applicable to the Borrowed Funds being
replaced, renewed, refinanced or extended.
"PERSON" means an individual, partnership, corporation, body corporate, trust or
other business or legal entity or any duly constituted government of or in any
country and any minister, department, commission, board, bureau, agency,
authority, instrumentality or court and the like of any such government.
"PURCHASE AGREEMENT" means the agreement dated January 31, 2003, among Metso
Automation Holdings B.V., Neles-Jamesbury, Inc., Telvent, Metso Automation SCADA
Solutions Ltd. and Metso Automation SCADA Solutions Inc., whereby Telvent agreed
to acquire all of the outstanding shares of the Borrower and Telvent U.S.
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"QUARTER" means a three-month period ending on the last day of March, June,
September or December in a year, as the case may be.
"RECEIVABLE" means the Borrower's and its Subsidiaries' presently existing and
hereafter arising or acquired accounts, accounts receivable, and all present and
future rights of the Borrower or any Subsidiary to payment for goods sold,
leased or licensed, or for services rendered (except those evidenced by
instruments or chattel paper), whether or not they have been earned by
performance, and all rights in any merchandise or goods which any of the same
may represent, and all rights, title, security and guaranties with respect to
each of the foregoing, including, without limitation, any right of stoppage in
transit.
"REIMBURSEMENT OBLIGATION" has the meaning given that expression in the Master
Letter of Credit Agreement.
"REPRESENTATION CERTIFICATE" means the certificate in the form of Schedule H
annexed hereto.
"REPAYMENT NOTICE" means a notice substantially in the form of Schedule C
annexed hereto.
"REQUIREMENTS OF LAW" means as to any Person, the Constituent Documents of such
Person, and any law, rule or regulation, or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its business, assets and undertaking.
"ROLLOVER" means a rollover of a Loan of one type into a Loan of the same type.
"ROLLOVER DATE" means the date of commencement of a new Interest Period
applicable to a Loan and which shall be a Banking Day.
"ROLLOVER NOTICE" means a notice substantially in the form annexed hereto as
Schedule D.
"SECURITY DOCUMENTS" means, collectively, the Promissory Notes, the General
Security Agreement, the Guarantees, the Guarantee Collateral Security Agreement,
the Intellectual Property Assignments and any and all other security granted as
collateral for the Obligations, including, without limitation, any security
granted pursuant to Section 3.4 hereof.
"SHAREHOLDERS' EQUITY" means, on any date, the total amount of shareholders'
equity including (i) the stated capital of all shares, (ii) accumulated retained
earnings, (iii) the amount of any contributed surplus and (iv) the amount of
Subordinated Shareholders' Loans, but excluding deferred taxes, all as set forth
in the Borrower's Financial Statements delivered pursuant to Section 14.1.6.
"SOLVENT" means when used with respect to any Person, that at the time of
determination:
(a) the fair value of its assets (both at fair valuation and at present
fair saleable value) is equal to or in excess of the total amount of
its liabilities, including, without limitation, contingent
liabilities; and
(b) it is then able and expects to be able to pay its debts as they
mature; and
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(c) it has capital sufficient to carry on its business as conducted and
as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the present
value of the amount which, in light of all the facts and circumstances existing
at the time, represent the amount which can be reasonably be expected to become
an actual or matured liability.
"SUBORDINATED SHAREHOLDERS' LOANS" means loans or advances made to the Borrower
by its shareholders or other persons that as at the date hereof are Subsidiaries
or Affiliates of such shareholders and which loans or advances, by their terms,
provide, in the opinion of counsel reasonably satisfactory to the Bank, that (i)
the principal thereof and premium, if any, are postponed to and may not be
repaid in whole or in part prior to the repayment of the Loans and all accrued
and unpaid interest and fees thereon and other amounts under the Credit
Facility; and (ii) upon the happening of an Event of Default or a Major Change
in Ownership the principal thereof, premium, if any, and interest and fees
thereon, and other amounts thereunder shall be subordinate and junior in right
of payment to the Loans and accrued and unpaid interest and fees thereon and
other amounts under the Credit Facility.
"SUBSIDIARY" means with respect to any Person:
(a) any corporation more than fifty percent (50%) of the outstanding
securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by
one or more of its Subsidiaries or by such Person and one or more of
its Subsidiaries, or
(b) any partnership, limited liability company, association, joint
venture or similar business organization more than fifty percent
(50%) of the ownership interests having ordinary voting power of
which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "SUBSIDIARY"
means a Subsidiary of the Borrower.
"SUBSTANTIAL PORTION OF THE COLLATERAL" means as of any date of determination,
Collateral having a book value (calculated in accordance with GAAP) greater than
U.S. $500,000, or the Equivalent Amount in Canadian Dollars, in the aggregate.
"TELVENT" means Telvent Sistemas y Redes, S.A.
"TELVENT U.S." means Telvent USA, Inc.
"TORONTO TIME" means local time in Toronto, Ontario on the date on which such
determination is made.
"TOTAL NET DEBT" means at any measurement point in respect of the Borrower and
its Subsidiaries, the aggregate of all Borrowed Funds less cash and Cash
Equivalents, as reported on the Borrower's Financial Statements.
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"UNITED STATES DOLLARS" and "U.S. $" means the lawful money of the United States
of America.
"U.S. BASE RATE" means the prime lending rate of the Bank, expressed on the
basis of a year of 360 days, being a variable per annum reference rate of
interest, as announced and adjusted by the Bank from time to time, for United
States Dollar loans in Canada.
"U.S. BASE RATE LOAN" means an Advance in, or Conversion into, United States
Dollars made by the Bank to the Borrower on which the Borrower has specified
that interest is to be calculated by reference to the U.S. Base Rate.
"UNUSED FACILITY A AMOUNT" means in respect of any day, the difference between
the aggregate principal amount available under this Credit Facility in respect
of Facility A (after giving effect to any cancellations or reductions pursuant
to Section 2.10 hereof) and the sum of the principal amounts outstanding under
Facility A and all L/C Obligations, on that day, in U.S. Dollars or the
Equivalent Amount in Canadian Dollars.
"UNUSED FACILITY B AMOUNT" means in respect of any day, the difference between
the aggregate principal amount available under this Credit Facility in respect
of Facility B (after giving effect to any cancellations or reductions pursuant
to Section 2.10 hereof) and the principal amount outstanding under Facility B,
on that day, in U.S. Dollars or the Equivalent Amount in Canadian Dollars.
"UNUSED LINE FEE" means the fees calculated pursuant to subsections 6.5.2 and
6.5.3 hereof.
"UNUSED LINE FEE RATE" means the annual factor by which the Unused Facility A
Amount or the Unused Facility B Amount, as the case may be, is to be multiplied
for the purposes of calculating the amount of the Unused Line Fee to be paid by
the Borrower hereunder, such amount to be determined as follows:
APPLICABLE ANNUAL UNUSED LINE FEE
WHERE TOTAL NET DEBT/EBITDA IS (EXPRESSED AS A PERCENTAGE)
greater than or equal to 2.00 0.50
greater than or equal to 1.50 and less than 2.00 0.50
greater than or equal to 1.00 and less than 1.50 0.25
greater than or equal to 0.50 and less than 1.00 0.25
less than 0.50 0.25
"VOTING SHARES" means shares of any class of any corporation or other voting
rights in respect of any limited liability company, limited liability
partnership, limited partnership, general partnership or any other entity
carrying voting rights under all circumstances Provided However, for the purpose
of this definition, shares which only carry the right to vote conditionally on
the happening of an event shall not be considered Voting Shares nor shall any
shares be deemed to be Voting Shares solely by reason of a right to vote
accruing to shares of another class or classes by reason of the happening of
such event.
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"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any Borrowed Funds at
any date, the number of years obtained by dividing:
(a) the product obtained by multiplying:
(i) the amount of each then remaining installment, sinking fund,
serial maturity or other required payments of principal,
including payment at final maturity, in respect thereof, by
(ii) the number of years (calculated to the nearest one-twelfth)
that will elapse between such date and the making of such
payment, by
(b) the then outstanding principal amount of such Borrowed Funds.
"WORKING CAPITAL" means as at any date of determination and in conformity with
GAAP, the excess, if any, of:
(a) the Borrower's consolidated current assets, over
(b) the Borrower's consolidated current liabilities, except current
maturities of long-term Indebtedness and Obligations under Facility
A as of such date, and all accrued interest and fees,
as of such date.
SECTION 1.2 MEANING OF "CONTROL"
For the purposes hereof, "CONTROL" (including with correlative
meanings the terms "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means, as to
any Person, the beneficial ownership of the right, whether such ownership is
direct or through Affiliates or may be exercised pursuant to a right in contract
and whether or not combined with the beneficial ownership of securities of a
corporation to which are attached more than 10% of the votes that may be cast to
elect directors, to elect a majority of the board of directors of the
corporation or the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Shares or by
contract or otherwise.
SECTION 1.3 PER ANNUM CALCULATIONS
Unless otherwise stated, wherever in this Agreement reference is
made to a "PER ANNUM" rate of interest or otherwise, such expression shall be
calculated on the basis of a calendar year of 365 days or 366 days, as the case
may be.
SECTION 1.4 CURRENCY
All references to currency herein shall be to lawful money of the
United States of America, unless otherwise expressly stated.
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SECTION 1.5 INTEREST ACT (CANADA)
For the purposes of this Agreement, whenever interest is calculated
on the basis of a year of 360 days, each rate of interest determined pursuant to
such calculation expressed as an annual rate for the purposes of the Interest
Act (Canada) is equivalent to 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 360.
SECTION 1.6 APPLICATION OF GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
Except to the extent inconsistent herewith, or as otherwise agreed
to in writing by the Bank and the Borrower, GAAP shall be adhered to and applied
in respect of all financial and accounting matters herein in a consistent manner
from period to period.
SECTION 1.7 COMPUTATION OF TIME PERIODS
In this Agreement, in the computation of periods of time from a
specified date to a later specified date, unless otherwise expressly stated, the
word "FROM" means "FROM AND INCLUDING" and the words "TO" and "UNTIL" each mean
"TO BUT EXCLUDING."
SECTION 1.8 SCHEDULES
The following are the Schedules annexed hereto and incorporated by
reference and deemed to be part hereof:
Schedule A - Draw Down Notice
Schedule B - Conversion Notice
Schedule C - Repayment Notice
Schedule D - Rollover Notice
Schedule E - Master Letter of Credit Agreement
Schedule F - Form of Promissory Notes
Schedule G - Guarantee and Collateral Security Agreement
Schedule H - Officers' Certificate
Schedule I - Borrower's Counsel's Opinion
Schedule J - Pro Forma Financial Statements
Schedule K - Borrower's January 31, 2003 Unaudited Balance Sheet
Schedule L - Statement of Liabilities
Schedule M - Statement of Insurance
Schedule N - Statement of Litigation
Schedule O - Permitted Existing Indebtedness and Investments
Schedule P - List of Guarantees and Indemnities
Schedule Q - Borrowing Base Certificate
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ARTICLE 2
THE CREDIT FACILITY
SECTION 2.1 THE CREDIT FACILITY
Subject to the terms and conditions of this Agreement, the Bank
shall make available the amounts provided for under the Credit Facility.
SECTION 2.2 MANNER OF BORROWING
The Borrower may make Drawdowns under the Credit Facility of
Canadian Prime Rate Loans, Bankers' Acceptances or Letters of Credit in Canadian
Dollars and of U.S. Base Rate Loans, Libor Loans or Letters of Credit in United
States Dollars.
SECTION 2.3 PURPOSE
The Credit Facility is being made available to the Borrower for
general corporate purposes, including, without limitation, to partially finance
the acquisition cost of the stock of the Borrower by way of distributions or
loans from the Borrower, to Telvent, in an amount up to U.S. $28,000,000, or the
Equivalent Amount in Canadian Dollars. Borrowings under Facility A will be used
for working capital and general corporate purposes and borrowings under Facility
B will be used to finance the Deferred Payment amount under the Purchase
Agreement and for working capital and general corporate purposes.
SECTION 2.4 AVAILABILITY OF FACILITY A ADVANCES
Subject to the other terms, covenants and conditions hereof, the
Borrower shall be entitled to make Drawdowns, Conversions and Rollovers in
respect of Facility A; Provided That the aggregate amount of all Loans and L/C
Obligations which may be outstanding in respect of Facility A shall not exceed,
at any time, the amount permitted pursuant to Section 2.11 hereof.
Notwithstanding the foregoing, the amount available in respect of the initial
Advance at the Closing Date of Facility A hereunder shall not be greater than
U.S. $5,000,000 or the Equivalent Amount in Canadian Dollars.
SECTION 2.5 AVAILABILITY OF FACILITY B ADVANCES
Subject to the other terms, covenants and conditions hereof, the
Borrower shall be entitled to make Drawdowns, Conversions and Rollovers in
respect of Facility B; Provided That Advances shall be made in an initial
funding at the Closing Date of U.S. $3,400,000 or the Equivalent Amount in
Canadian Dollars. Subsequent to final determination of the maximum deferred
purchase price under the Purchase Agreement, the Bank will fund the lesser of:
2.5.1 37% of the deferred purchase price subsequent to Telvent funding its
63% equity portion of the deferred purchase price; and
2.5.2 the aggregate amount available in respect of Facility B.
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Notwithstanding anything herein, the Bank shall not be obligated to make any
subsequent Advance in respect of Facility B earlier than January 31, 2004.
SECTION 2.6 DRAWDOWN AND CONVERSION RESTRICTIONS
Drawdowns and Conversions under the Credit Facility shall be subject
to the restriction that each Drawdown or Conversion in respect of a Canadian
Prime Rate Loan, U.S. Base Rate Loan, Libor Loan or Banker's Acceptance shall be
in a minimum principal amount of U.S. $100,000 or the Equivalent Amount in
Canadian Dollars, and increments in excess thereof of U.S. $100,000 or the
Equivalent Amount in Canadian Dollars, and integral multiples thereof (except
where the remaining balance available for Drawdown or Conversion is less than
U.S. $100,000 or the Equivalent Amount in Canadian Dollars, in which case the
amount of the remaining balance shall be the minimum principal amount).
SECTION 2.7 NOTICE PERIODS FOR DRAWDOWNS, CONVERSIONS AND ROLLOVERS
The Borrower may make a Drawdown, Conversion or Rollover under the
Credit Facility by delivering a Drawdown Notice, Conversion Notice or Rollover
Notice, as the case may be, with respect to a specified type of Loan to the Bank
not later than 11:00 a.m. (Toronto time) three Banking Days prior to the
proposed Drawdown Date, Conversion Date or Rollover Date, as the case may be.
SECTION 2.8 BANK'S OBLIGATIONS WITH RESPECT TO CANADIAN PRIME RATE
LOANS, BANKER'S ACCEPTANCES, U.S. BASE RATE LOANS AND
LIBOR LOANS
The Bank shall, prior to 10:00 a.m. (Toronto time) on the Drawdown
Date, Rollover Date or Conversion Date specified by the Borrower in a Drawdown
Notice, Rollover Notice or Conversion Notice with respect to a Canadian Prime
Rate Loan, U.S. Base Rate Loan, Libor Loan or Banker's Acceptance, make
available the full amount of the amounts so credited to the Borrower.
SECTION 2.9 IRREVOCABILITY
A Drawdown Notice, Rollover Notice or Conversion Notice properly
given by the Borrower hereunder shall be irrevocable and shall oblige the
Borrower and the Bank to take the action contemplated on the date specified
therein, except as provided in Section 8.7 or 16.1.
SECTION 2.10 CANCELLATION OR REDUCTION OF CREDIT FACILITY
The Borrower may, at any time, upon giving at least five days prior
notice to the Bank, cancel in full or, from time to time, reduce in part the
undrawn portion of any Facility; Provided That, any such reduction shall be in a
minimum amount of U.S. $100,000, or the Equivalent Amount in Canadian Dollars,
and reductions in excess thereof shall be in increments of U.S. $100,000, or the
Equivalent Amount in Canadian Dollars, and integral multiples thereof
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(except where the remaining balance available is less than U.S. $100,000, or the
Equivalent Amount in Canadian Dollars, in which case the reduction shall be the
amount of the remaining balance).
SECTION 2.11 NATURE OF CREDIT FACILITY
2.11.1 Except in respect of a repayment under Section 11.1, when the
Borrower has made any repayment on Facility B, the Facility shall be
permanently reduced by the amount of the repayment. Rollovers and
Conversions will not constitute repayments.
2.11.2 Except as provided for in Section 11.1, the maximum of:
(a) all Loans and L/C Obligations under Facility A shall not
exceed the lesser of:
(i) U.S. $8,000,000 or the Equivalent Amount in Canadian
Dollars, or
(ii) the Borrowing Base; and
(b) all Loans under Facility B shall not exceed U.S. $5,500,000 or
the Equivalent Amount in Canadian Dollars; and
(c) all Obligations under this Agreement shall not exceed the sum
of the amounts permitted under clauses 2.11.2(a) and 2.11.2(b)
ARTICLE 3
SECURITY
SECTION 3.1 GRANT OF SECURITY
Payment of the Obligations shall be secured by a perfected first
security interest in the Collateral, subject only to Permitted Encumbrances, in
accordance with the provisions of the Security Documents.
SECTION 3.2 INITIAL GUARANTEE SUBSIDIARY
The Borrower shall cause to be executed and delivered to the Bank on
or before the Closing Date the Guarantee of Telvent U.S., as a Guarantee
Subsidiary.
SECTION 3.3 GUARANTEES
The Borrower shall cause to be executed and delivered to the Bank as
and when required hereunder the Guarantee of each Subsidiary forthwith upon such
entity becoming a Subsidiary of the Borrower.
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SECTION 3.4 UNDERTAKING TO GRANT ADDITIONAL SECURITY
The Borrower shall, forthwith at the reasonable request of the
Bank grant to the Bank and register or cause to be registered a first, fixed and
specific mortgage, charge and security interest in favor of the Bank and in form
and substance satisfactory to the Bank on all or such portion of the assets and
undertaking of the Borrower as the Bank may determine, from time to time,
subject only to Permitted Encumbrances.
ARTICLE 4
CONDITIONS PRECEDENT TO DRAWDOWNS
SECTION 4.1 CONDITIONS FOR FIRST DRAWDOWN
On or before the first Drawdown of Facility A hereunder the
following conditions must be satisfied by the Borrower proposing to make a
Drawdown:
4.1.1 Drawdown Notice - the Bank shall have received a Drawdown
Notice;
4.1.2 Borrower's Constituent Documents - the Borrower shall have
delivered to the Bank certified copies of the Constituent
Documents and by-laws of the Borrower, the resolutions of
the directors authorizing the borrowings and certificates
of incumbency of the officers of the Borrower, and any
other Documents to be provided pursuant to the provisions
hereof;
4.1.3 Guarantee Subsidiary Constituent Documents - the Borrower
shall have delivered to the Bank certified copies of the
Constituent Documents and by-laws of each Guarantee
Subsidiary then in existence, the resolutions of the
directors authorizing the Guarantee and certificates of
incumbency of the officers of the Guarantee Subsidiary and
any other Documents to be provided pursuant to the
provisions hereof;
4.1.4 Borrowing Base Certificate - a Borrowing Base Certificate
as at March 31, 2003.
4.1.5 Borrower's January 31, 2003 Unaudited Balance Sheet - the
Borrower's January 31, 2003 Unaudited Balance Sheet
4.1.6 Borrower's March 31, 2003 Unaudited Financial Statements -
the Borrower's March 31, 2003 Unaudited Financial
Statements.
4.1.7 Borrower's Officer's Certificate - an Officer's
Certificate from the Borrower confirming that the
representations and warranties set forth in Section 13.1
are true and accurate in all material respects shall be
delivered to the Bank;
4.1.8 Guarantee Subsidiaries' Officer's Certificate - the
Borrower shall have delivered a Representation Certificate
in respect of each Guarantee Subsidiary then in existence
to the extent any Guarantees are then being delivered by
such entities;
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4.1.9 Copy of Purchase Agreement - the Bank shall have received
a duly executed copy of the Purchase Agreement;
4.1.10 Field Audit - the Bank shall have completed, and been
satisfied in its sole determination with the results of,
a field audit of the Borrower;
4.1.11 No Change of Ownership or Event of Default - a Major
Change in Ownership shall not have occurred and no event
shall have occurred which would constitute an Event of
Default or which would constitute a Major Change in
Ownership or an Event of Default with the giving of notice
or lapse of time or both nor shall the Drawdown result in
the occurrence of any such event;
4.1.12 Borrower's Counsel's Opinion - an opinion substantially
in the form set out in Schedule I shall have been
delivered to the Bank;
4.1.13 No Litigation - evidence satisfactory to the Bank shall
have been received indicating that there is no litigation,
including dissenting shareholder litigation, which would,
or could be reasonably expected to, have a Material
Adverse Effect, except as disclosed in Schedule N hereto;
4.1.14 Cash Management Arrangements - the Borrower shall have
entered into and shall thereafter maintain cash management
arrangements acceptable to the Bank and the Borrower; and
4.1.15 Payment of Fees - The Borrower shall have paid all amounts
due under Section 6.5.1 hereof.
SECTION 4.2 SUBSEQUENT DRAWDOWNS
The following conditions shall be satisfied by the Borrower at
or prior to the time of each Drawdown subsequent to the first Drawdown under
this Agreement:
4.2.1 Subsequent Drawdown Notices - the Bank shall have received a
Drawdown Notice from the Borrower;
4.2.2 Subsequent Borrower `s Representations Certificate - the
Borrower shall have delivered to the Bank a Representation
Certificate confirming that the representations and warranties
set forth therein are true and accurate in all material
respects;
4.2.3 Subsequent Guarantee Subsidiaries' Representations Certificate
- the Borrower shall have delivered to the Bank a
Representation Certificate in respect of each Guarantee
Subsidiary confirming that the representations and warranties
set forth therein are true and accurate in all material
respects;
4.2.4 No Subsequent Change of Ownership or Change of Ownership - a
Major Change of Ownership shall not have occurred and no event
shall have occurred and be continuing which would constitute
an Event of Default or which would constitute
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<PAGE>
a Major Change in Ownership or an Event of Default with the
giving of notice or lapse of time or both nor shall the
Drawdown result in the occurrence of any such event; and
4.2.5 Amended Constituent Documents - the Borrower shall have
delivered to the Bank certified copies of any and all changes,
amendments, additions to and deletions from the Constituent
Documents and by-laws of the Borrower and each Guarantee
Subsidiary then in existence since the last date on which such
documents were delivered to the Bank hereunder and
certificates of incumbency of the officers of the Borrower,
and any other Documents to be provided pursuant to the
provisions hereof.
SECTION 4.3 WAIVER
The conditions set forth in Sections 4.1 and 4.2 are inserted
for the sole benefit of the Bank and may be waived by the Bank in whole or in
part (with or without terms or conditions), in respect of any Drawdown without
prejudicing the right of the Bank at any time to assert such conditions in
respect of any subsequent Drawdown.
ARTICLE 5
EVIDENCE OF DRAWDOWNS
SECTION 5.1 ACCOUNT OF RECORD
The Bank shall open and maintain separate books of account for
each Facility evidencing all Loans and all other amounts owing by each of the
Borrower to the Bank hereunder. The Bank shall enter in the foregoing accounts
details of all amounts from time to time owing, paid or repaid by the Borrower
hereunder. The information entered in the foregoing accounts shall constitute
prima facie non-exclusive evidence of the obligations of the Borrower to the
Bank hereunder with respect to the principal amount of all Loans owing by the
Borrower to the Bank hereunder.
ARTICLE 6
PAYMENTS OF INTEREST AND FEES
SECTION 6.1 INTEREST ON CANADIAN PRIME RATE LOANS
The Borrower shall pay interest on each Canadian Prime Rate
Loan during each Interest Period applicable thereto in Canadian Dollars at a
rate per annum equal to the Canadian Prime Rate in effect from time to time
during such Interest Period, plus the Base Rate Margin. Each determination by
the Bank of the Canadian Prime Rate applicable from time to time during an
Interest Period shall, in the absence of error, be binding upon the Borrower.
Such interest shall be payable in arrears on each Interest Payment Date for such
Loan for the period from and including the Drawdown Date or the preceding
Rollover Date, Conversion Date or Interest Payment Date, as the case may be, for
such Loan to and including the day preceding the current Interest Payment Date
and shall be calculated on the principal amount of the Canadian Prime Rate Loan
outstanding during such period and on the basis of the actual number of days
elapsed
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in a year of 365 days or 366 days, as the case may be. Changes in the Canadian
Prime Rate shall cause an immediate adjustment of the interest rate applicable
to such Loan without the necessity of any notice to the Borrower.
SECTION 6.2 INTEREST ON U.S. BASE RATE LOANS
The Borrower shall pay interest on each U.S. Base Rate Loan
during each Interest Period applicable thereto in United States Dollars at a
rate per annum, expressed on the basis of a 360 day year, equal to the U.S. Base
Rate applicable from time to time during an Interest Period, plus the Base Rate
Margin. Each determination by the Bank of the U.S. Base Rate applicable from
time to time during an Interest Period shall, in the absence of error, be
binding upon the Borrower. Such interest shall be payable in arrears on each
Interest Payment Date for such Loan for the period from and including the
Drawdown Date or the preceding Rollover Date, Conversion Date or Interest
Payment Date, as the case may be, for such Loan to and including the day
preceding the current Interest Payment Date and shall be calculated on the
principal amount of the U.S. Base Rate Loan outstanding during such period and
on the basis of the actual number of days elapsed divided by 360. Changes in the
U.S. Base Rate shall cause an immediate adjustment of the interest rate
applicable to such Loan without the necessity of any notice to the Borrower.
SECTION 6.3 INTEREST ON LIBOR LOANS
The Borrower shall pay interest on each Libor Loan during each
Interest Period applicable thereto in United States Dollars at a rate per annum,
expressed on the basis of a 360 day year, equal to the Libor Rate with respect
to such Interest Period plus the Libor Margin. Each determination by the Bank of
the Libor Rate applicable to an Interest Period shall, in the absence of error,
be binding upon the Borrower. Upon determination of the Libor Rate applicable to
an Interest Period, the Bank shall notify the Borrower. Such interest shall be
payable in arrears on each Interest Payment Date for such Loan for the period
from and including the Drawdown Date or the preceding Rollover Date, Conversion
Date or Interest Payment Date, as the case may be, for such Loan to and
including the day preceding the current Interest Payment Date and shall be
calculated on the principal amount of the Libor Loan outstanding during such
period and on the basis of the actual number of days elapsed divided by 360.
SECTION 6.4 NO DEDUCTION ETC.
Interest payments hereunder shall be payable by the Borrower
both before and after maturity and before and after default or judgment, if any,
until payment thereof in full, and interest shall accrue on overdue interest, if
any, at the rates described in this Agreement.
SECTION 6.5 UNUSED LINE FEES AND OTHER FEES
6.5.1 At the Closing Date of the initial Advance of either Facility
A or Facility B, whichever first occurs, LaSalle Bank National
Association shall receive a fee equal to U.S. $135,000 in
respect of its facilitating the Credit Facility.
6.5.2 From and after the date of execution hereof, the Borrower
shall pay to the Bank in respect of Facility A, an Unused Line
Fee in U.S. Dollars, based on the Unused
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Line Fee Rate multiplied by the Unused Facility A Amount,
expressed in U.S. Dollars, calculated on a daily basis and
paid Quarterly on the last Banking Day for each Quarter in
respect of which the calculation is made; Provided However, no
such Unused Line Fee shall accrue and be payable during any
period when the Bank, in accordance with Section 15.5, shall
not be obligated to permit further drawdowns.
6.5.3 From and after the date of execution hereof, the Borrower
shall pay to the Bank in respect of Facility B, an Unused Line
Fee in U.S. Dollars, based on the Unused Line Fee Rate
multiplied by the Unused Facility B Amount, expressed in U.S.
Dollars, calculated on a daily basis and paid Quarterly on the
last Banking Day for each Quarter in respect of which the
calculation is made; Provided However, no such Unused Line Fee
shall accrue and be payable during any period when the Bank,
in accordance with Section 15.5, shall not be obligated to
permit further drawdowns.
SECTION 6.6 LIMIT ON RATE OF INTEREST
Notwithstanding any provision contained herein, the Borrower
shall not be obliged to make any payments of interest or other amounts payable
to the Bank hereunder in excess of the amount or rate which would be prohibited
by applicable law or would result in the receipt by the Bank of interest at a
criminal rate (as such terms are construed under the Criminal Code (Canada)).
ARTICLE 7
ROLLOVERS
SECTION 7.1 SELECTION OF INTEREST PERIODS
Prior to the expiration of each Interest Period of each Libor
Loan and in accordance with Section 2.7 the Borrower shall, unless it has
delivered a Conversion Notice pursuant to Section 10.1 or a Repayment Notice
pursuant to Section 11.2 with respect to the aggregate amount of such Loan,
deliver a Rollover Notice to the Bank selecting the next Interest Period
applicable to the Libor Loan which next Interest Period shall commence on and
include the last day of such prior Interest Period. If the Borrower fails to
deliver a Rollover Notice to the Bank as herein provided the Borrower shall be
deemed to have given a Conversion Notice to the Bank pursuant to Section 10.1
electing to convert the Libor Loan into a U.S. Base Rate Loan.
SECTION 7.2 PARTIAL ROLLOVERS
The Borrower may effect a Rollover of a part of a Libor Loan;
Provided That, the portion which is not part of the Rollover is either repaid in
accordance with Section 11.2 or converted in accordance with Section 10.1.
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ARTICLE 8
BANKERS' ACCEPTANCES
SECTION 8.1 BANKERS' ACCEPTANCES
Bankers' Acceptances are permitted under Facility A and B of
the Credit Facility in accordance with the provisions of this Article.
SECTION 8.2 FEES
Upon the acceptance by the Bank of Bankers' Acceptances, the
Borrower shall pay or cause to be paid to the Bank, in advance, a fee in
Canadian Dollars equal to the Bankers' Acceptance Fee. Such fee shall be
calculated on the principal amount at maturity of each Bankers' Acceptance and
for the period of time from and including the date of acceptance to but
excluding the maturity date of each Bankers' Acceptance and calculated on the
basis of the actual number of days elapsed in the year of 365 or 366 days, as
the case may be, in which the Bankers' Acceptance is accepted.
SECTION 8.3 GENERAL PROVISIONS
8.3.1 Upon receipt of a Drawdown Notice, Rollover Notice or
Conversion Notice with respect to a Bankers' Acceptance, the
Bank shall release drafts drawn by the Borrower upon the Bank
in a principal amount at maturity equal to the amount of the
proposed Bankers' Acceptances before 10:00 a.m. (Toronto time)
on the Drawdown Date, Rollover Date or Conversion Date
specified by the Borrower in its Drawdown Notice, Rollover
Notice or Conversion Notice. Such drafts shall be properly
drawn and executed by the Borrower on the Bank's standard form
in effect at the time, subject as follows:
(a) if the Borrower proposes to use facsimile signatories on
Bankers' Acceptances, the Bank shall have received the
appropriate authorizing resolutions and documentation from
such Borrower;
(b) the principal amount at maturity of each draft of the Bankers'
Acceptance to be presented by the Borrower at any one time to
the Bank shall be a minimum of Cdn. $1,000,000 and integral
multiples of Cdn. $100,000 for amounts in excess of Cdn.
$1,000,000;
(c) the Bankers' Acceptance delivered by the Borrower to the Bank
shall mature on the last day of the Interest Period with
respect thereto; and
(d) the provisions of this Agreement, and not the provisions
contained in the Bank's standard form, shall govern the
relationship between the Borrower and the Bank.
8.3.2 The Borrower shall not claim any days of grace for the payment
at maturity of the Bankers' Acceptance.
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8.3.3 In anticipation of the maturity of Bankers' Acceptances the
Borrower shall do one or a combination of the following:
(a) deliver to the Bank prior to the maturity date and in
accordance with the time periods set forth in Section 2.7, a
Rollover Notice that the Borrower intends to draw and present
for acceptance on the maturity date new Bankers' Acceptances;
(b) deliver to the Bank a Conversion Notice pursuant to Section
10.1; or
(c) on the maturity date of the maturing Bankers' Acceptances,
make a payment to the Bank for the account of the Bank in an
amount equal to the face amount of the maturing Bankers'
Acceptances less the amounts dealt with under Sections
8.3.3(a) and 8.3.3(b).
If the Borrower fails so to notify the Bank or make such
payment, the Bank shall effect a Conversion into a Canadian
Prime Rate Loan as if a Conversion Notice pursuant to 8.3.3(b)
above had been given by the Borrower to the Bank.
8.3.4 To facilitate the acceptance of Bankers' Acceptances as
aforesaid, the Borrower shall, upon execution of this
Agreement and from time to time as required, provide to the
Bank drafts drawn in blank by the Borrower upon the Bank in
quantities sufficient for the Bank to fulfill its obligations
hereunder. The Bankers' Acceptances shall be kept by the Bank
with like care as if the Bankers' Acceptances were the
property of the Bank. The Bank shall not be liable for its
failure to accept the Bankers' Acceptance as required
hereunder if the cause of such failure is, in whole or in
part, due to the failure of the Borrower to provide such
instruments to the Bank on a timely basis.
SECTION 8.4 DRAWDOWNS
The Bank, upon accepting Bankers' Acceptances on a Drawdown
shall exchange the Bankers' Acceptance for the Bank draft, certified cheque or
other medium of payment of the purchaser acceptable to the Bank equal in amount
to the Discount Proceeds thereof. The Bank shall pay or credit to the account of
the Borrower, an amount equal to the Discount Proceeds without deduction in same
day funds.
SECTION 8.5 ROLLOVERS
In the case of a Rollover of the Bankers' Acceptance, the Bank
shall exchange the Bankers' Acceptance for a bank draft, certified cheque or
other medium of payment of the purchaser acceptable to the Bank for the Discount
Proceeds thereof. In order to satisfy the continuing liability of the Borrower
to the Bank for the principal amount of the maturing Bankers' Acceptance, the
Bank shall receive for its own account the Discount Proceeds of such new
Bankers' Acceptance and the Borrower shall on the maturity date of the maturing
Bankers' Acceptance pay to the Bank an amount equal to the difference between
the principal amount of
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the maturing Bankers' Acceptance and the Discount Proceeds from the new Bankers'
Acceptance. The Borrower shall assume the risk of non-payment on the purchasers'
medium of payment for Bankers' Acceptances.
SECTION 8.6 CONVERSIONS
Subject to Section 10.1:
8.6.1 In the case of a Conversion into the Bankers' Acceptance, the
Bank shall exchange the Bankers' Acceptance for the Bank
draft, certified cheque or other medium of payment of the
purchaser acceptable to the Bank for the Discount Proceeds
thereof. In order to satisfy the continuing liability of the
Borrower to the Bank for the amount of the converted Loan, the
Bank shall receive for its own account the Discount Proceeds
of the Bankers' Acceptance and the Borrower shall, on the
Conversion Date, pay to the Bank the difference between the
principal amount of the Bankers' Acceptance and the Discount
Proceeds therefrom.
8.6.2 In the case of a Conversion of Bankers' Acceptances into
another type of Loan, in order to satisfy the continuing
liability of the Borrower to the Bank for the amount of the
Bankers' Acceptances, the Bank shall record the obligation of
the Borrower to the Bank as a Loan in the type into which the
obligation has been converted.
SECTION 8.7 ALTERNATIVE BORROWINGS
8.7.1 Where the Borrower requests a Loan by way of Bankers'
Acceptances, the Bank may, at its option, make available to
the Borrower prior to 10:00 a.m. (Toronto time) on the
Drawdown Date, Rollover Date or Conversion Date, as the case
may be, for such Loan by way of Bankers' Acceptances a
Canadian Dollar loan (the "ALTERNATE LOAN") in a principal
amount equal to the principal amount of such Loan by way of
Bankers' Acceptance. Such Alternate Loan shall be funded in
the same manner as a Loan is funded pursuant to Section 2.8.
Such Alternate Loan shall have the same term as the Bankers'
Acceptances for which it is a substitute and shall bear such
rate of interest per annum as shall permit the Bank to obtain
the same effective yield as if the Bank had accepted and
purchased Bankers' Acceptances and furnished an amount equal
to the Discount Proceeds in accordance with Section 8.2.
Interest shall be calculated for such Alternate Loan in
advance on the Drawdown Date, Rollover Date or Conversion
Date, as the case may be, and the Bank shall deduct such
calculated amount from the principal amount of such Alternate
Loan.
8.7.2 On the Drawdown Date, Rollover Date or Conversion Date, as the
case may be, the Borrower shall pay or cause to be paid to the
Bank an amount equal to the Bankers' Acceptance Fee which
would have been payable to the Bank if it had accepted
Bankers' Acceptances.
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8.7.3 If the Bank intends to make a Loan by way of an Alternative
Loan pursuant to Section 8.7.2, it shall give to the Borrower
notice of the decision by the Bank to make Alternative Loans
in lieu of or in addition to Loans by way of Bankers
Acceptances, such notice to apply to all further Loans by the
Bank in respect of Bankers' Acceptances until further notice
is given by the Bank to the Borrower.
ARTICLE 9
LETTER OF CREDIT FACILITY
SECTION 9.1 OBLIGATION TO ISSUE LETTERS OF CREDIT
Subject to the terms and conditions of this Agreement and the
Master Letter of Credit Agreement, and in reliance upon the representations,
warranties and covenants of the Borrower herein set forth, the Bank hereby
agrees to issue for the account of the Borrower, one or more Letters of Credit
in respect of Facility A, denominated in Canadian Dollars or U.S. Dollars in
accordance with this Article, from time to time during the period, commencing on
the Closing Date and ending on the 6th Banking Day prior to the termination of
the obligation of the Bank to fund Advances hereunder.
SECTION 9.2 TYPES AND AMOUNTS
Notwithstanding the foregoing, the Bank shall not have any
obligation to:
9.2.1 issue or amend any Letter of Credit if on the date of issuance
or amendment, before or after giving effect to the Letter of
Credit requested hereunder:
(a) the amount of the Obligations at such time would exceed the
amount permitted by Section 2.11, at such time, or
(b) the aggregate outstanding amount of the L/C Obligations would
exceed U.S. $2,000,000, or the Equivalent Amount in Canadian
Dollars, calculated as of the date of issuance of any Letter
of Credit; or
9.2.2 issue or amend any Letter of Credit which has an expiration date
later than the date which is the earlier of:
(a) 1 year after the date of issuance thereof, or
(b) 5 Banking Days immediately preceding the termination of the
obligation of the Bank to fund Advances hereunder;
Provided, That any Letter of Credit with a one year tenor may provide for the
renewal thereof for additional one year periods, which in no event shall extend
beyond the date referred to in clause 9.2.2(b) above.
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SECTION 9.3 CONDITIONS
In addition to the terms and conditions of the Master Letter
of Credit Agreement and in addition to being subject to the satisfaction of the
conditions contained in Section 4.1 or 4.2, as the case may be, the obligation
of the Bank to issue any Letter of Credit is subject to the condition that as of
the date of issuance no order, judgment or decree of any court, arbitrator or
Governmental Authority shall purport by its terms to enjoin or restrain the Bank
from issuing such Letter of Credit and no law, rule or regulation applicable to
the Bank and no request or directive, whether or not having the force of law,
from a Governmental Authority with jurisdiction over the Bank shall prohibit or
request that the Bank refrain from the issuance of Letters of Credit generally
or the issuance of that Letter of Credit.
SECTION 9.4 LETTER OF CREDIT FEES
The Borrower agrees to pay pursuant to Section 5 of the Master
Letter of Credit Agreement:
9.4.1 in respect of each standby Letter of Credit on each Interest
Payment Date, in arrears, to the Bank, a letter of credit fee
at a rate per annum equal to the Applicable L/C Fee Percentage
for standby Letters of Credit, multiplied by the average daily
outstanding amount available for drawing under the standby
Letter of Credit; and
9.4.2 in respect of each other Letter of Credit on the date of
issue, a letter of credit fee equal to the Applicable L/C Fee
Percentage for other Letters of Credit, multiplied by the face
amount of the Letter of Credit; and
9.4.3 to the Bank, all customary fees and other issuance, amendment,
cancellation, document examination, negotiation, transfer and
presentment expenses and related charges in connection with
the issuance, amendment, cancellation, presentation of drafts
drawn on the Bank pursuant to a corresponding Letter of
Credit, negotiation, transfer and the like customarily charged
by the Bank with respect to Letters of Credit, including,
without limitation, standard commissions with respect to
commercial Letters of Credit, payable at the time of invoice
of such amounts.
SECTION 9.5 SPECIFIC AMENDMENTS TO THE MASTER LETTER OF CREDIT
AGREEMENT
The following terms, covenants and conditions of the Master
Letter of Credit Agreement are hereby specifically amended:
9.5.1 Bank - The "Bank" shall be "LaSalle Business Credit, a
division of ABN AMRO Bank N.V., Canada Branch";
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9.5.2 Section 1 - Certain Definitions - The following defined terms
in the Master Letter of Credit Agreement are hereby amended as
follows:
(a) Prime Rate - is hereby amended to read:
"means the Canadian Prime Rate if the Letter of Credit is denominated
in Canadian Dollars or the U.S. Base Rate if the Letter of Credit is
denominated in U.S. Dollars."
(b) Credit Agreement - a defined term is hereby added as follows:
"Credit Agreement means that Credit Agreement between the Bank and the
Borrower dated May 2, 2003 under which Letters of Credit are provided
for hereunder."
9.5.3 Subsection 2.4- Representations and Warranties - Section 2.4
is hereby amended to adding after the words "from such
issuance" at the end of the paragraph and before the period,
the following:
"and (c) all of the representations and warranties of the Credit
Agreement are true and correct as at the date of the Application and
the Applicant is in full compliance with all of the covenants on the
part of the Applicant under the Credit Agreement."
9.5.4 Section 7- Making of Payments - Section 7 is hereby amended as
necessary to provide that all payments made in respect of
Letters of Credit shall be made at the Bank's offices in
Toronto, Ontario, or as the Bank otherwise directs and all
amounts shall be paid in the currency in which the Letter of
Credit was denominated.
9.5.5 Section 9 - Events of Default - Section 9 is hereby amended by
adding as Clause 9.1.5 thereof:
"9.1.5 Credit Agreement Default. An event of default shall
have occurred and be continuing under the Credit
Agreement."
9.5.6 Section 10 - Security - Section 10 is hereby amended to add as
Subsection 10.3, the following:
"10.3 Credit Agreement Security. The Applicant confirms and
declares that the security given by it, as Borrower, to the Bank
under the Credit Agreement shall extend to and secure the
obligations of the Applicant hereunder and nothing herein shall
limit or preclude the Bank from enforcing its rights thereunder in
respect of any amounts owing to the Bank in connection with any
Letter of Credit or otherwise arising hereunder."
9.5.7 Subsection 11.5 - Governing Law - Subsection 11.5 is hereby
amended to read that the contract is made under and governed
by the laws of the Province of
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Alberta applicable to contracts made and to be performed
entirely within such province.
9.5.8 Subsection 11.14 - Jurisdiction - Subsection 11.14 is hereby
amended by changing all references to "Cook County, Illinois"
and the "State of Illinois" to read "the Province of Alberta".
SECTION 9.6 PARAMOUNCY
If there shall be any conflict between the provisions of the
body of this Agreement and those of the Master Letter of Credit Agreement, the
provisions of the body of this Agreement shall be read as paramount thereto.
ARTICLE 10
CONVERSION OPTIONS
SECTION 10.1 CONVERSION OPTIONS
10.1.1 Subject to the provisions of this Agreement, the Borrower may
convert the whole or any part of any type of Loan into any
other type of Loan on the last day of the applicable Interest
Period therefor, by giving the Bank a Conversion Notice in
accordance with the time periods set forth in Section 2.7. The
Bank shall, on the Conversion Date, continue to extend credit
to the Borrower by way of the type of Loan into which the
outstanding Loan or a portion thereof is converted in the
aggregate principal amount or Equivalent Amount, as the case
may be, of the outstanding Loan or the portion thereof which
is being converted.
10.1.2 Where on a Conversion one type of Loan in one currency is
being converted to another type of Loan in a different
currency, the Borrower shall pay to the Bank the principal
amount of the Loan or the portion thereof being converted and
the Bank shall make a further Loan to the Borrower in the new
currency in the aggregate principal amount of the Equivalent
Amount of the outstanding Loan or the portion thereof which is
being converted.
ARTICLE 11
REPAYMENT
SECTION 11.1 REPAYMENT OF EXCESS OVER CREDIT FACILITY OR
BORROWING BASE
If at any time, the Bank determines that all Obligations then
outstanding under the Credit Facility, expressed in U.S. Dollars, exceeds the
Credit Facility or the Borrowing Base, expressed in U.S. Dollars, the Bank shall
notify the Borrower of the amount of such excess and the Borrower shall within
four Banking Days after the receipt of such notice, repay to the Bank such
excess in U.S. Dollars, together with accrued interest thereon in U.S. Dollars
to the date of such payment. If, to make the repayment, it is necessary to repay
a Bankers' Acceptance, the
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Borrower shall not be required to repay such Bankers' Acceptance until the end
of the Interest Period relating thereto. If, to make the repayment, it is
necessary to repay a Libor Loan, the Borrower shall not be required to repay
such Libor Loan until the end of the Interest Period relating thereto. In making
such repayment the Borrower may designate which Loans are being repaid. In
determining the amount of any excess hereunder which is to be repaid, the Bank
may, in the case of any other forward exchange contracts of the Borrower with
other financial institutions, take such forward exchange contracts into
consideration.
SECTION 11.2 OPTIONAL REPAYMENT OF PRINCIPAL
11.2.1 The Borrower may at any time and from time to time pay,
without penalty, to the Bank for the account of the Bank, the
whole or any part of any Loan (other than in respect of any
Bankers' Acceptance) under the Credit Facility together with
accrued and unpaid interest thereon to the date of such
repayment; Provided That:
(a) the Borrower shall give a Repayment Notice to the Bank at
least five Banking Days prior to the date of repayment; and
(b) each such repayment may only be made on the last day of the
applicable Interest Period with regard to a Loan that is being
repaid.
11.2.2 If any Loan is repaid on other than the last day of the
applicable Interest Period the Borrower shall, within three
Banking Days after notice is given and delivery of the
certificate hereinafter described has been made by the Bank,
pay to the Bank for the account of the Bank all costs, losses
and expenses incurred by the Bank by reason of the liquidation
or redeployment of deposits or other funds resulting from the
repayment of such Loan or any part thereof on other than the
last day of the applicable Interest Period. The Bank shall
prepare a certificate of a duly authorized officer of the Bank
setting forth the basis of calculation thereof and such
certificate shall be delivered by the Bank to the Borrower. If
pursuant to the provisions of this Section or any other
provision hereof the Borrower becomes obliged to pay such
costs, losses or expenses, the Bank shall use its reasonable
best efforts to minimize such costs, losses and expenses.
SECTION 11.3 MANDATORY REPAYMENTS OF PRINCIPAL - FACILITY A
The entire amount of the Obligations outstanding in respect of
Facility A shall be repaid by the Borrower on or before March 31, 2008.
SECTION 11.4 MANDATORY REPAYMENTS OF PRINCIPAL - FACILITY B
The principal amount of the Loans outstanding in respect of
Facility B shall be repaid by the Borrower:
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(a) in installments in the amount of U.S. $275,000 each, or the
Equivalent Amount in Canadian Dollars, on August 1, November
1, February 1 and May 1 in each year, commencing on August 1,
2003; and
(b) an amount equal to 50% of the Excess Cash Flow for each fiscal
year of the Borrower, such payment to be made within 90 days
after such fiscal year end;
Provided However, the entire amount of the Obligations outstanding in respect of
Facility B shall be repaid by the Borrower on or before March 31, 2008.
ARTICLE 12
PLACE AND APPLICATION OF PAYMENTS
SECTION 12.1 PLACE OF PAYMENT OF PRINCIPAL, INTEREST AND FEES
All payments of principal, interest, fees and other amounts to
be made by the Borrower to the Bank pursuant to this Agreement shall be made in
the currency in which the Loan is outstanding or as otherwise required under
this Agreement for value on the day such amount is due and if such day is not a
Banking Day on the Banking Day next following by deposit or transfer thereof to
the account of the Borrower maintained in accordance with this Agreement in
Canada.
SECTION 12.2 FUNDS
Each amount advanced, made available, disbursed or paid
hereunder shall be advanced, made available, disbursed or paid, as the case may
be, for value on the date such amount is advanced, made available, disbursed or
paid in such form of funds as may from time to time be customarily used for
Canadian Dollars in Canada or for United States Dollars in the United States 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.
SECTION 12.3 APPLICATION OF PAYMENTS
If any Event of Default or a Major Change in Ownership shall
occur and be continuing, all payments made by the Borrower hereunder shall be
applied in the following order:
12.3.1 to amounts due hereunder as Unused Line Fees;
12.3.2 to amounts due hereunder as costs and expenses;
12.3.3 to amounts due hereunder as default interest;
12.3.4 to amounts due hereunder as Bankers' Acceptance fees;
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12.3.5 to amounts due hereunder as interest; and
12.3.6 to amounts due hereunder as principal.
ARTICLE 13
REPRESENTATIONS AND WARRANTIES
SECTION 13.1 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows to the Bank
and acknowledges and confirms that the Bank is relying upon such representations
and warranties:
13.1.1 Corporate Status - The Borrower is a corporation duly
incorporated and validly existing under the laws of Canada and
has all necessary corporate power and authority to own its
respective properties and carry on its respective business as
presently carried on and each is duly licensed, registered or
qualified in all jurisdictions where a failure to be so
licensed, registered or qualified would have a Material
Adverse Effect.
13.1.2 Corporate Authority - The Borrower has full corporate power
and authority to enter into this Agreement or any other
Document to be delivered pursuant hereto, as the case may be,
and to do all acts and things contemplated or desirable
hereunder, and to execute and deliver all other Documents as
are required hereunder or thereunder to be done, observed or
performed by them in accordance with their terms.
13.1.3 Guarantee Subsidiary Corporate Status - The Guarantee
Subsidiary is a corporation duly incorporated and validly
existing under the laws of Texas and has all necessary
corporate power and authority to own its respective properties
and carry on its respective business as presently carried on
and each is duly licensed, registered or qualified in all
jurisdictions where a failure to be so licensed, registered or
qualified would have a Material Adverse Effect.
13.1.4 Guarantee Subsidiary Corporate Authority - The Guarantee
Subsidiary has full corporate power and authority to enter
into and grant its Guarantee or any other Document, to which
it is a party, to be delivered pursuant hereto, as the case
may be, and to do all acts and things contemplated or
desirable hereunder, and to execute and deliver all other
Documents, to which it is a party, as are required hereunder
or thereunder to be done, observed or performed by them in
accordance with their terms.
13.1.5 Valid Authorization -
(a) The Borrower has taken all necessary corporate action to
authorize the creation, execution, delivery and performance of
this Agreement, and each of the other
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Documents to which it is a party and to observe and perform
the provisions of each in accordance with its terms.
(b) Each Guarantee Subsidiary has taken all necessary corporate
action to authorize the creation, execution, delivery and
performance of its Guarantee, and each of the other Documents
to which it is a party and to observe and perform the
provisions of each in accordance with its terms.
13.1.6 Validity of Documents and Enforceability - Assuming due
execution by parties thereto other than the Borrower, and each
Guarantee Subsidiary, as the case may be, this Agreement, or
its Guarantee, as the case may be, constitutes valid and
legally binding obligations of the Borrower, or its Guarantee
Subsidiary, as the case may be, enforceable against it in
accordance with its terms. Neither the execution and delivery
thereof nor compliance with the terms and conditions hereof:
(a) will result in a violation of the articles or the by-laws of
the Borrower, or its Guarantee Subsidiary, as the case may be,
or any resolutions passed by the Board of Directors or
shareholders of the Borrower, or any Guarantee Subsidiary, as
the case may be, or any applicable law, rule, regulation,
order, judgment, injunction, award or decree; or
(b) will result in a breach of, or constitute a default under, any
loan agreement, indenture, trust deed or any other agreement
or instrument to which the Borrower, or any Guarantee
Subsidiary, as the case maybe, is a party or by which it is
bound and which breach or default would, or could be
reasonably expected to, have a Material Adverse Effect; or
(c) requires any approval or consent of any government authority
or agency having jurisdiction except such as has already been
obtained.
13.1.7 Approvals -
(a) No authorizations, approvals or consents of, and no filings,
or registrations with, any governmental or regulatory
authority or agency or any other Person are necessary for the
execution, delivery or performance by the Borrower of the
Documents, to which it is a party, or for the validity or
enforceability thereof, or for the perfection of the Liens
intended to be created by the Security Documents, to which it
is a party, except, in the case of the General Security
Agreement, the filing of a financing statement in the
appropriate governmental offices of the Province of Alberta;
and
(b) No authorizations, approvals or consents of, and no filings,
or registrations with, any governmental or regulatory
authority or agency or any other Person are necessary for the
execution, delivery or performance by the Guarantee
Subsidiary, of the Documents to which it is a party, or for
the validity or enforceability
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thereof, or for the perfection of the Liens intended to be
created by the Security Documents to which it is a party
except, in the case of the Guarantee Collateral Security
Agreement, the filing of a financing statement in the
appropriate governmental offices of the State of Texas (and
such other States as may be appropriate).
13.1.8 Tax Examinations - All deficiencies which have been asserted
against the Borrower or any of the Borrower's Subsidiaries as
a result of any federal, provincial, state, local or foreign
tax examination for each taxable year in respect of which an
examination has been conducted have been fully paid or finally
settled or are being contested in good faith, and no issue has
been raised by any taxing authority in any such examination
which, by application of similar principles, could reasonably
be expected to result in assertion by such taxing authority of
a material deficiency for any other year not so examined which
has not been reserved for in the Borrower's consolidated
financial statements to the extent, if any, required by GAAP.
Except as permitted pursuant to Section 14.1.9, neither the
Borrower nor any of the Borrower's Subsidiaries anticipates
any tax liability with respect to the years which have not
been closed pursuant to applicable law that will have or could
reasonably be expected to have a Material Adverse Effect.
13.1.9 Tax Returns - The Borrower, and each Guarantee Subsidiary, as
the case may be, has filed all tax returns which are required
to be filed by it and has paid all taxes due pursuant to such
returns or pursuant to any assessment received by the
Borrower, and each Guarantee Subsidiary, as the case may be.
The charges, accruals and reserves on the books of the
Borrower in respect of taxes and other governmental charges
are, in the opinion of the Borrower adequate.
13.1.10 Taxes Paid - All tax returns and reports of the Borrower and
its Subsidiaries required to be filed have been timely filed,
and all taxes, assessments, fees and other governmental
charges upon the tax returns and reports of the Borrower and
its Subsidiaries and upon their respective property, assets,
income and franchises which are shown in such returns or
reports to be due and payable have been paid except those
items which are being contested in good faith and have been
reserved for in accordance with GAAP. The Borrower has no
knowledge of any proposed tax assessment against the Borrower
or any of its Subsidiaries that will have or could reasonably
be expected to have a Material Adverse Effect.
13.1.11 Titles and Liens - The Borrower has good and merchantable
title to each of the properties, assets and undertakings and
all such properties, assets and undertakings are free and
clear from all Liens other than Permitted Encumbrances, Minor
Title Defects and the security granted pursuant to the
Security Documents.
13.1.12 Security Documents - The Security Documents, when duly
executed, recorded and delivered, will create a first, prior
and recorded lien and charge in favor of the Bank in the
Collateral as security for the payment of the Obligations,
subject to no
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subordinated, equal or prior lien or charge, other than the
Permitted Encumbrances.
13.1.13 Purchase Agreement - The Borrower has heretofore furnished to
the Bank a true and complete copy of the Purchase Agreement as
it is in effect on the date hereof.
13.1.14 Non-Default - No Event of Default or Major Change in Ownership
and no event in respect of any agreement, undertaking or
instrument to which the Borrower or any Subsidiary is a party
or to which the Borrower, any Subsidiary, or any of their
respective assets may be subject has occurred which
constitutes or which, with the giving of notice, lapse of time
or other condition, would constitute a Major Change in
Ownership or an Event of Default or which would or could
reasonably be expected to have a Material Adverse Effect.
13.1.15 Financial Condition - The Borrower's 2002 Financial Statements
fairly present the financial condition of the Borrower as at
the date thereof and the results of the operations of the
Borrower for the period then ending, and have been prepared in
accordance with GAAP, consistently applied, except as
otherwise noted therein, and no event has occurred which could
reasonably be expected to have a Material Adverse Effect.
13.1.16 Borrower's Interim Financial Statements -
(a) The Borrower's January 31, 2003 Unaudited Balance Sheet fairly
presents the financial condition of the Borrower as at the
date thereof, all in accordance with GAAP, consistently
applied, except as otherwise noted, and no event has occurred
which could reasonably be expected to have a Material Adverse
Effect; and
(b) Borrower's March 31, 2003 Unaudited Financial Statements
fairly present the financial condition of the Borrower as at
the date thereof and the results of the operations of the
Borrower for the period then ending, all in accordance with
GAAP, consistently applied, except as otherwise noted, and no
event has occurred which could reasonably be expected to have
a Material Adverse Effect
13.1.17 Pro Forma Financial Statements - The combined, projected pro
forma balance sheet, income statements and statements of cash
flow of the Borrower and its Subsidiaries, copies of which are
attached hereto as Schedule J to this Agreement, present on a
pro forma basis the financial condition of the Borrower and
such Subsidiaries to December 31, 2003, and reflect on a pro
forma basis those liabilities reflected in the notes thereto
and resulting from consummation of Purchase Agreement and the
other transactions contemplated by this Agreement, and the
payment or accrual of all transaction costs payable on the
Closing Date with respect to any of the foregoing. The
projections and assumptions expressed in the pro forma
financials referenced in this Section were prepared in good
faith and represent management's opinion based on the
information available to the Borrower at the time so furnished
and, since the preparation thereof and up to the
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Closing Date, there has occurred no change in the business,
financial condition, operations, or prospects of the Borrower
or any of its Subsidiaries, or the Borrower and its
Subsidiaries taken as a whole which has had or could
reasonably be expected to have a Material Adverse Effect.
13.1.18 Securities Activities - Neither the Borrower nor any of its
Subsidiaries:
(a) is in violation of any securities laws to which it or its
activities are subject; and
(b) is engaged in the business of extending credit for the purpose
of purchasing or carrying Margin Stock (as that expression is
defined in Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any
successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by
banks, non-banks and non-broker lenders for the purpose of
purchasing or carrying Margin Stock applicable to member banks
of the Federal Reserve System). Margin Stock constitutes less
than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder.
13.1.19 Absence of Litigation - Except as set forth in Schedule N (the
"DISCLOSED LITIGATION"), there is no action, suit, proceeding,
arbitration or, to the Borrower's knowledge, investigation
before or by any Governmental Authority or private arbitrator
pending or, to the Borrower's knowledge, threatened against or
affecting the Borrower or any of its Subsidiaries or any
property of any of them. Neither any of the Disclosed
Litigation nor any action, suit, proceeding, arbitration or
investigation which has commenced since the Closing Date (or
the most recent update of the Disclosed Litigation) (i)
challenges the validity or the enforceability of any material
provision of the Transaction Documents or (ii) has or could
reasonably be expected to have a Material Adverse Effect
Neither the Borrower nor any of its Subsidiaries is (x) in
violation of any applicable Requirements of Law which
violation will have or could reasonably be expected to have a
Material Adverse Effect, or (y) subject to or in default with
respect to any final judgment, writ, injunction, restraining
order or order of any nature, decree, rule or regulation of
any court or Governmental Authority which will have or could
reasonably be expected to have a Material Adverse Effect.
13.1.20 Loss Contingencies - There is no material loss contingency
within the meaning of GAAP which has not been reflected in the
consolidated financial statements of the Borrower prepared and
delivered pursuant to Section 14.1.6 for the fiscal period
during which such material loss contingency was incurred.
13.1.21 No Undisclosed Liabilities - Except as set forth in Schedule L
hereto, neither the Borrower nor its Subsidiaries has any
liabilities or obligations of any nature (whether absolute,
accrued, contingent or otherwise) except for liabilities or
obligations reflected or reserved against in the Borrower's
2002 Financial
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Statements and liabilities and obligations not required by
GAAP, to be disclosed in the Borrower's 2002 Financial
Statements.
13.1.22 Solvency - After giving effect to:
(a) the Loans to be made on the Closing Date or such other date as
Loans requested hereunder are made,
(b) the other transactions contemplated by this Agreement, the
Security Documents and the Purchase Agreement, and
(c) the payment and accrual of all transaction costs with respect
to the foregoing, and
(d) the distribution of the proceeds of each of Facility A and
Facility B to Telvent, the Borrower and its Subsidiaries taken
as a whole are Solvent.
13.1.23 Capital Structure - All of the issued and outstanding Voting
Shares of the Borrower are held by Telvent and all of the
issued and outstanding Voting Shares of the Guarantee
Subsidiary are held by the Borrower.
13.1.24 Employee Commitments - Neither the Borrower, nor any
Subsidiary is a party to or bound by any written or oral
pension, employee benefit agreement or other agreement with or
respecting employees or is bound by or obligated to make any
contributions under any pension plan or arrangement or any
retirement income plan, deferred profit sharing plan or
similar plan or arrangement, or any plan, program or other
arrangement providing for medical services or coverage, dental
care and life insurance which creates any obligations or
commitments substantially different from those set for in
Schedule 4.14.1 to the Purchase Agreement.
13.1.25 Collective Agreements - Neither the Borrower nor any of its
Subsidiaries is subject to any union or other collective
bargaining agreements with respect to any of its employees.
13.1.26 Guarantees - Except as set forth in Schedule P hereto neither
the Borrower nor any Subsidiary (except as herein provided) is
a party to or bound by any agreement of guarantee,
indemnification, assumption or endorsement or any other like
commitment of the obligations, liabilities (contingent or
otherwise) or indebtedness of any person or other entity.
13.1.27 Intellectual Property -
(a) Except as set for in Schedule 4.19.6 to the Purchase Agreement
(the "PURCHASE AGREEMENT INTELLECTUAL PROPERTY SCHEDULE"), the
Borrower and its Subsidiaries are the exclusive owners of all
right, title and interest in and to, and have good
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and marketable title to, the specific Intellectual Property
listed in the Purchase Agreement Intellectual Property
Schedule, free and clear of any Liens.
(b) Except as set forth in the Purchase Agreement Intellectual
Property Schedule all licenses or other rights or permission
to use and which are material for the business of the Borrower
or its Subsidiaries have been obtained by the Borrower and its
Subsidiaries to any Third Party Intellectual Property (defined
below) used by the Borrower and its Subsidiaries in their
businesses.
(c) Except as set forth in the Purchase Agreement Intellectual
Property Schedule each item of Intellectual Property owned or
used by the Borrower and its Subsidiaries immediately prior to
the Closing hereunder will be owned or available for use by
such Companies (as defined in the Purchase Agreement) on
substantially the same terms and conditions immediately
subsequent to the Closing hereunder.
(d) Except as set forth therein, the Purchase Agreement
Intellectual Property Schedule sets forth all registrations
and applications therefore currently issued or pending in any
jurisdiction for the Intellectual Property owned by the
Borrower and its Subsidiaries, including registration or
application numbers therefor and the jurisdiction in which
registration or application has been obtained or made
(collectively referred to herein and hereinafter as
"REGISTERED INTELLECTUAL PROPERTY").
(e) To the best knowledge of the Borrower and except as set forth
therein, the Purchase Agreement Intellectual Property Schedule
sets forth a true and complete list of all Registered
Intellectual Property that is owned by the Borrower and its
Subsidiaries and the Registered Intellectual Property is
valid, subsisting, and unexpired.
(f) For the purposes of this Agreement "Third Party Intellectual
Property" means any intellectual property rights of any Person
other than Borrower and its Subsidiaries, including any
patent, industrial design, copyright, moral right, trademark
or service mark (including any logo, design, business name,
trade name or the like), mask work, trade secret, confidential
information, right of privacy, data right, or any other
analogous intangible proprietary right, whether registered or
unregistered, anywhere in the world.
(g) Except as set forth in the Purchase Agreement Intellectual
Property Schedule, and to the best of the knowledge of the
Borrower, neither the Borrower nor any of its Subsidiaries has
separately or together, infringed upon or misappropriated any
Third Party Intellectual Property.
(h) Except as set forth in the Purchase Agreement Intellectual
Property Schedule, none of the Borrower or its Subsidiaries
has ever received any written complaint, claim, demand, or
notice that remains unresolved and that:
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(i) alleges that the Borrower or its Subsidiaries has
infringed or misappropriated any Third Party
Intellectual Property; or
(ii) seeks to restrict in any manner the use, transfer, or
licensing of any Intellectual Property owned by
Borrower or its Subsidiaries.
(i) To the best of the knowledge of the Borrower and its
Subsidiaries, and except as provided in the Purchase Agreement
Intellectual Property Schedule, no third party to Borrower or
its Subsidiaries has infringed upon or misappropriated any
Intellectual Property rights owned by the Borrower or its
Subsidiaries.
(j) Except as otherwise set forth in the Purchase Agreement
Intellectual Property Schedule with respect to each item of
Intellectual Property identified therein:
(i) where the item is Registered Intellectual Property,
the item remains pending or in force (as the case may
be) with all maintenance fees and renewal fees that
have fallen due on or prior to the Closing Date
having been paid in a timely fashion;
(ii) the item is not subject to any outstanding
injunction, judgment, order, decree, or ruling by a
Court of competent jurisdiction limiting its use by
the Borrower or its Subsidiaries (except for
Registered Intellectual Property to the extent
pending or registered in any government patent or
trademark office, as the case may be); and
(iii) no action, suit, proceeding, hearing, complaint,
written claim, or written demand is pending or, to
the best of the knowledge of the Borrower and its
Subsidiaries, is threatened which challenges the
subsistence, existence, validity, enforceability,
use, or ownership of the item provided that nothing
in this term extends to the prosecution of any
Registered Intellectual Property to the extent
pending or registered in any government patent or
trademark office, as the case may be.
(k) Except as set forth therein, the Purchase Agreement
Intellectual Property Schedule identifies each license,
sublicense, agreement or permission to use any Third Party
Intellectual Property which is material for the business of
the Borrower and its Subsidiaries other than off the shelf or
similar Software and to the best of the knowledge of the
Borrower and its Subsidiaries the Purchase Agreement
Intellectual Property Schedule identifies each license,
sublicense, agreement or permission to use any Third Party
Intellectual Property which are material for the business of
the Borrower and its Subsidiaries for off the shelf or similar
Software. With respect to each such license, sublicense,
agreement or permission:
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(i) the license, sublicense, agreement, or permission
covering the item is legal, valid, binding,
enforceable against the Borrower and its
Subsidiaries, respectively, and in full force and
effect;
(ii) the license, sublicense, agreement, or permission
will continue to be legal, valid, binding,
enforceable against the Borrower and its
Subsidiaries, respectively, and in full force and
effect on essentially the same terms following the
Closing Date;
(iii) none of the Borrower nor its Subsidiaries and to the
best of the knowledge of the Borrower and its
Subsidiaries, no other party to the license,
sublicense, agreement, or permission is in breach or
default, and, to the best of the knowledge of the
Borrower and its Subsidiaries, no event has occurred
which with notice or lapse of time would have a
Material Adverse Effect or permit termination,
modification, or acceleration thereunder; and
(iv) except as permitted by the applicable agreement, none
of the Borrower or its Subsidiaries has granted any
sublicense or similar right with respect to the
listed license , sublicense, agreement, or
permission.
(1) Except as set forth therein, the Purchase Agreement
Intellectual Property Schedule sets forth all material
products that are licensed or sold by the Borrower and its
Subsidiaries to unrelated third parties and which are or
include either Software and/or Databases owned by any of the
Borrower or its Subsidiaries and identifies specifically under
separate headings in respect of the foregoing: (A) Software as
to which the source code is owned by the Borrower and its
Subsidiaries ("OWNED SOFTWARE"), (B) third party Software
which is licensed to each or any of the Borrower and its
Subsidiaries and as to which the Borrower or its Subsidiaries
are in possession of the source code; (C) third party Software
which is licensed to any of the Borrower or its Subsidiaries
but as to which the Borrower or its Subsidiaries do not have
possession of the source code and which is bundled with or
embedded in the Owned Software pursuant to reseller
agreements; (D) third party Software purchased by or licensed
to each or either Company solely for resale or sublicense to
its customers other than off the shelf or similar Software;
(E) third party Software not owned by the Borrower or its
Subsidiaries but in which the Borrower or its Subsidiaries has
any use, possessory or proprietary rights other than as set
forth in clauses A) through D), above (such material Software
described in the foregoing subsections B) through E) being
referred to collectively as the "THIRD-PARTY SOFTWARE"); and
(F) all material Software development projects undertaken by
the Borrower and its Subsidiaries, in whole or in part, within
the past two years with persons other than employees, together
with an identification of the persons undertaking such
projects. In this Section a reference to "source code" means a
human readable version of any Software owned by one or both of
the Companies that is not routinely or regularly
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provided to end users. With respect to the Owned Software and
except as set forth separately in the Purchase Agreement
Intellectual Property Schedule:
(i) the Borrower or its Subsidiaries have the sole and
exclusive right to use the Owned Software, free and
clear of any Encumbrances, except rights to market
and/or use the Owned Software granted by the Borrower
or its Subsidiaries to customers thereof pursuant to
license agreements or sales, marketing,
distributorship, agency, representative and
value-added reseller agreements made with third
parties with respect to the sale or sublicensing by
the third party of any of the products of the
Borrower and its Subsidiaries and which were entered
into in the normal course of business;
(ii) the source code with respect to the Owned Software is
not in the possession of any party other than the
Borrower or its Subsidiaries and has been maintained
as confidential by the Borrower and its Subsidiaries;
and
(iii) no contractual rights in favor of any party to any
Software owned by the Borrower and its Subsidiaries
(including Software which is the subject of escrow,
payment terms or similar arrangements) will be
immediately triggered or otherwise immediately
materially adversely affected by the transactions
contemplated hereby.
(m) Except as set forth in the Purchase Agreement Intellectual
Property Schedule, neither the Borrower nor its Subsidiaries
has granted any exclusive license with respect to, any
Intellectual Property of Borrower or its Subsidiaries to any
third party. Except as set forth in the Purchase Agreement
Intellectual Property Schedule, to the best knowledge of the
Borrower and its Subsidiaries they have in the past 365 days
immediately preceding the Closing Date (the "QUIET PERIOD"),
by way of agreement or assignment made, entered into, prepared
or executed in said Quiet Period, transferred ownership to any
Intellectual Property that was owned by the Borrower or its
Subsidiaries to a third party.
(n) Except as set forth in the Purchase Agreement Intellectual
Property Schedule to the best knowledge of the Borrower and
its Subsidiaries no material Trade Secrets are in the
possession of any party other than the Borrower and its
Subsidiaries except pursuant to license or confidentiality
agreements signed by such other party and all material Trade
Secrets have been maintained as confidential by the Borrower
and its Subsidiaries.
13.1.28 Insurance - Schedule M to this Agreement accurately sets forth
as of the Closing Date all insurance policies and programs
currently in effect with respect to the respective properties
and assets and business of the Borrower and its Subsidiaries,
specifying, for each such policy and program, (A) the amount
thereof, (B) the risks insured against thereby, (C) the name
of the insurer and each insured party thereunder, (D) the
policy or other identification number thereof, (E) the
expiration date thereof, and (F) any reserves relating to any
self-insurance
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program that is in effect. Such insurance policies and
programs reflect coverage that is reasonably consistent with
prudent industry practice, and shall include, without
limitation, property and liability (and, if appropriate,
business interruption) insurance.
13.1.29 Environmental Compliance - Except as described in Schedule
4.17 to the Purchase Agreement:
(a) All of the Borrower's Properties are in a condition that is
clean and healthful and free of all Environmental
Contamination (including latent Environmental Contamination)
or other potentially harmful physical conditions including,
without limitation, any patent or latent Environmental
Contamination of the atmosphere, air, soil, subsoil,
groundwater or surface waters within or adjacent thereto;
(b) No Hazardous Materials and no other materials intended for use
or generated by the Borrower or any of its Subsidiaries have
been or are used, stored, treated or otherwise disposed of in
violation of Environmental Legislation;
(c) All Hazardous Materials removed or emitted from the Borrower's
Properties were and are documented, transported and disposed
of in compliance with all Environmental Legislation;
(d) No materials including, without limitation, effluents,
leachate, emissions or hazardous materials, generated on or
emitted from the Borrower's Properties have caused or will
cause in whole or in part any Environmental Contamination or
injury to any atmosphere, air, soil, subsoil, groundwater,
surface water, property or persons, including adjacent
property and property through or to which such materials were
shipped;
(e) All of the facilities of the Borrower or any of its
Subsidiaries that were or are used by any party for the
disposal of solid or other waste have been and are properly
permitted and operated in compliance with all applicable laws
and regulations and have not produced and do not produce any
Environmental Contamination;
(f) There is no agreement or consent order to which the Borrower
or any of its Subsidiaries is a party which relates to any
environmental matter, and no such agreement or order is
necessary for the continued compliance of the Borrower with
applicable Environmental Legislation or any other laws and
regulations applicable to the Borrower or any of its
Subsidiaries;
(g) There have been no orders issued, investigations conducted or
other proceedings taken or threatened under or pursuant to any
Environmental Legislation with respect to the business, assets
or undertaking of the Borrower or any of its Subsidiaries.
There are no circumstances or events that have any reasonable
prospect of resulting in any claim, action or other proceeding
with respect to
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environmental damage or harm or in an order, investigation or
other proceeding under or pursuant to the Environmental
Legislation. All approvals, permits, certificates, licences,
orders-in-council or other actions required under the
environmental legislation applicable to the business, assets
or undertaking of the Borrower or any of its Subsidiaries and
to own and operate the same have been obtained; and
(h) The use of, and operations relating to the business, assets
and undertaking of the Borrower or any of its Subsidiaries do
not constitute a nuisance nor has any claim of nuisance been
made in respect of such use and operations by any adjoining
landowner or other party.
SECTION 13.2 NATURE OF REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Article
shall survive the execution and delivery of this Agreement and the making of
each Drawdown, notwithstanding any investigations or examinations which may be
made by the Bank or counsel to the Bank.
ARTICLE 14
COVENANTS
SECTION 14.1 AFFIRMATIVE COVENANTS OF THE BORROWER
The Borrower covenants and agrees with the Bank that so long
as any amount payable hereunder is outstanding:
14.1.1 Punctual Payment - The Borrower shall duly and punctually pay
the principal of all Loans made to it, all interest thereon
and all fees and other amounts required to be paid by the
Borrower hereunder at the dates and places, in the currency
and in the manner mentioned herein.
14.1.2 Conduct of Business - The Borrower shall, and will cause its
Subsidiaries to, maintain their respective corporate
existences in good standing and do or cause to be done all
things necessary to keep in full force and effect all
properties, rights, franchises, licences and qualifications to
carry on business where a failure to do so would have a
material adverse effect on the business, operations or
financial condition of the Borrower and its Subsidiaries taken
as a whole.
14.1.3 Compliance with Laws - The Borrower shall, and shall cause its
Subsidiaries to:
(a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties,
assets or operations of such Person, and
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(b) obtain as needed all permits necessary for its operations and
maintain such permits in good standing unless failure to
comply or obtain such permits could not reasonably be expected
to have a Material Adverse Effect.
14.1.4 Operation in Accordance with Environmental Legislation - The
Borrower shall and shall cause each of its Subsidiaries to,
hold, maintain and operate all of its business, assets and
undertaking in compliance with all applicable Environmental
Legislation.
14.1.5 Environmental Authorizations - The Borrower shall and shall
cause its Subsidiaries to, obtain and maintain in good
standing all at all times all permits, licences, consents and
approvals required under applicable Environmental Legislation,
necessary for the ownership of its assets and undertaking and
the conduct of its business.
14.1.6 Financial Statements and Other Information - The Borrower
shall deliver to the Bank:
(a) Annual Financial Statements - as soon as practicable and, in
any event, within 120 days after the end of each of its fiscal
years, copies of:
(i) its unaudited annual financial statements of the
Borrower, and
(ii) the unaudited annual financial statements of each of
its Subsidiaries, and
(iii) the consolidated audited annual financial statements
of the Borrower and each of its Subsidiaries,
consisting of balance sheets, statements of earnings and
retained earnings and statements of cash flow for each such
year, expressed in U.S. Dollars, together with the notes
thereto and any management report or audit letter, all
prepared in accordance with U.S. GAAP consistently applied,
except as otherwise noted (and accepted by the Bank),
throughout the period and prior periods, together, in the case
of the consolidated financial statements, with a report of the
auditors of the Borrower;
(b) Quarterly Financial Statements - as soon as practicable, and
in any event within forty five (45) days after the end of each
Quarter the consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as at the end of such period
and the related consolidated and consolidating statements of
income, shareholders' equity and cash flows of the Borrower
and its Subsidiaries for such fiscal quarter and cumulatively
for the period from the beginning of the then current fiscal
year to the end of such fiscal quarter, certified by the chief
financial officer of the Borrower on behalf of the Borrower as
fairly presenting the consolidated and consolidating financial
position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and cash
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flows for the periods indicated in accordance with U.S. GAAP,
subject to normal year-end audit adjustments, together with:
(i) in comparative form:
(A) the corresponding figures as set forth in
the budget, if any, delivered pursuant to
Subsection 14.1.6(e) for such period, and
(B) the corresponding figures of the Borrower
and its Subsidiaries for the period ending
on the corresponding calendar quarter in the
previous fiscal year if such corresponding
calendar quarter began after the Closing
Date, and
(ii) any management discussion and analysis of such
financial statements prepared for presentation to the
Board of Directors of the Borrower.
(c) Monthly Financial Statements - commencing as of the first day
of the month following the initial Advance, as soon as
practicable, and in any event within thirty (30) days after
the end of each four-week fiscal period (other than the end of
a fiscal quarter), the consolidated and consolidating balance
sheet of the Borrower and its Subsidiaries as at the end of
such period and the related consolidated and consolidating
statements of income and statement of cash flow of the
Borrower and its Subsidiaries for such fiscal period and
cumulatively for the period from the beginning of the then
current fiscal year to the end of such fiscal period,
certified by the chief financial officer of the Borrower on
behalf of the Borrower as fairly presenting the consolidated
and consolidating financial position of the Borrower and its
Subsidiaries as at the dates indicated and the results of
their operations and cash flow for the fiscal periods
indicated in accordance with U.S. GAAP, subject to normal year
end adjustments, and in comparative form:
(i) the corresponding figures as set forth in the budget
delivered pursuant to Subsection 14.1.6(e) for such
period, and
(ii) the actual financial position of the Borrower and its
Subsidiaries for the period ending on the
corresponding fiscal period in the previous fiscal
year.
(d) Borrower's January 31, 2003 Audited Balance Sheet - not later
than June 30, 2003, the Borrower's January 31, 2003 Audited
Balance Sheet.
(e) Budgets - as soon as practicable and in any event not later
than:
(i) the Closing Date of the initial Advance hereunder and
thereafter not later than sixty (60) days after the
beginning of each fiscal year commencing
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with the fiscal year beginning on January 1, 2003, a
copy of the Borrower's fiscal year operating budget
for such fiscal year, and
(ii) the Closing Date of the initial Advance hereunder and
thereafter not later than ninety (90) days after the
beginning of each fiscal year commencing with the
fiscal year beginning on January 1,2003, a copy of
the plan and forecast (including a projected balance
sheet, income statement, a statement of cash flow and
related footnotes) of the Borrower and its
Subsidiaries for the upcoming five (5) fiscal years,
in each case prepared in such detail as shall be
reasonably satisfactory to the Bank; and
(f) Other - at the request of the Bank, such other reports,
certificates, projections of income and cash flow or other
matters affecting the business affairs or financial condition
of the Borrower and its Subsidiaries as the Bank may
reasonably require and as may reasonably be available and
subject to any contractual restrictions regarding
confidentiality.
14.1.7 No Default Certificate - The Borrower shall deliver to the
Bank, concurrently with furnishing the financial statements
pursuant to clauses 14.1.6(a) and 14.1.6(b), an Officer's
Certificate signed by its chief executive officer, president,
chief financial officer, treasurer or other responsible
officer of the Borrower acceptable to the Bank, certifying
that:
(a) such financial statements fairly present the financial
condition and results of operations of the Borrower and its
consolidated Subsidiaries,
(b) no Major Change in Ownership has occurred,
(c) no Event of Default has occurred and is continuing,
(d) the Borrower is in compliance with all covenants, terms and
conditions on its part to be performed pursuant to the
Purchase Agreement, and
(e) the Borrower is in compliance with its obligation to provide
detailed calculations of its financial covenants to the Bank.
14.1.8 Compliance with Agreements - The Borrower shall duly perform
and meet its obligations and duties under the Purchase
Agreement and the Security Documents.
14.1.9 Taxes - The Borrower shall pay, and cause each of its
Subsidiaries to pay when due:
(a) all taxes, assessments and other governmental charges imposed
upon it or on any of its properties or assets or in respect of
any of its franchises, business, income or property before any
penalty or interest accrues thereon, and
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(b) all claims (including, without limitation, claims for labor,
services, materials and supplies) for sums which have become
due and payable and which by law have or may become a Lien
(other than the Lien hereof and Permitted Encumbrances) upon
any of the Borrower's or such Subsidiary's property or assets,
prior to the time when any penalty or fine shall be incurred
with respect thereto;
Provided, However, that no such taxes, assessments and
governmental charges referred to in clause 14.1.9(a) above or
claims referred to in clause 14.1.9(b) above (and interest,
penalties or fines relating thereto) need be paid if being
contested in good faith by appropriate proceedings diligently
instituted and conducted and if such reserve or other
appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
14.1.10 Insurance - The Borrower shall and shall cause each of its
Subsidiaries to, keep insured its business, assets and
undertaking in such amounts as the Bank may reasonably require
against loss or damage by fire and such other risks as the
Bank may from time to time specify, based on the opinion of an
independent, recognized insurance broker with experience in
arranging insurance for clients in businesses similar to the
business of the Borrower, with insurers approved by the Bank.
The Borrower shall whenever from time to time requested by the
Bank provide the Bank with satisfactory evidence of such
insurance and any renewal thereof which shall at all times be
subject to mortgage clauses in a form approved by the Bank.
Evidence satisfactory to the Bank of the renewal of every
policy of insurance shall be left with the Bank at least 7
days before the termination thereof. Each policy of insurance
entered into by the Borrower after the date hereof shall be in
form and substance acceptable to the Bank and shall not,
without the approval of the Bank, be subject to any
co-insurance clause.
14.1.11 Use of Proceeds - The proceeds of the Loan shall be used for
general corporate purposes, including, without limitation, to
partially finance the acquisition cost of the stock of the
Borrower by way of distributions or loans from the Borrower,
to Telvent, in an amount up to U.S. $ 28,000,000, or the
Equivalent Amount in Canadian Dollars. Borrowings under
Facility A will be used for working capital and general
corporate purposes and borrowings under Facility B will be
used to finance the Deferred Payment amount under the Purchase
Agreement and for working capital and general corporate
purposes.
14.1.12 Maintain Business, Assets and Undertaking - The Borrower
covenants and agrees with the Holder that the Borrower will
hereafter for so long as there are Obligations outstanding,
defend title to its assets and undertaking and those of its
Subsidiaries against claims and demands of all Persons
whomsoever and shall keep and maintain the same in good
standing, order, condition and repair, subject to reasonable
wear and tear of its assets.
14.1.13 Rights of Inspection - At any reasonable time and from time to
time upon reasonable prior notice, the Borrower shall, and
shall cause its Subsidiaries to,
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permit the Bank or any representative thereof, at the expense
and risk of the Bank, to examine the financial records and
books of account of the Borrower or any of its Subsidiaries
and to visit and inspect the premises and properties of the
Borrower or any of its Subsidiaries and to discuss the affairs
or finances and accounts of either of the Borrower or any of
their respective Subsidiaries with any of the senior officers
of the Borrower and as may reasonably be available and subject
to any contractual restrictions regarding confidentiality.
14.1.14 Notice of Major Change in Ownership or Material Default - The
Borrower shall deliver to the Bank, forthwith upon becoming
aware of any Major Change in Ownership or any material default
in the performance of any covenant, agreement or condition
contained in this Agreement, an Officer's Certificate
specifying the same.
14.1.15 Discharge Existing Security - The Borrower shall repay all
outstanding Indebtedness that is secured by a Lien on the
assets or undertaking of the Borrower, other than Indebtedness
allowed under Permitted Encumbrances and the Indebtedness
created pursuant hereto, and shall discharge any such Lien.
14.1.16 Registration of Security - The Borrower shall at its sole cost
and expense register and renew any registration, filing or
recording of the Lien created hereby and by the Security
Documents and all instruments collateral, supplemental or
ancillary hereto at every office and place where such
registrations, filings or recordings may be required or
permitted from time to time.
14.1.17 Further Assurances - The Borrower shall forthwith, and from
time to time, hereafter, at its sole cost and expense, do or
cause to be done all things and shall execute and register or
cause to be executed and registered all public recordations,
registrations and filings, security agreements, instruments
supplemental hereto, deeds and documents (including without
limitation, all Financing Statements, Financing Change
Statements), which, in the reasonable opinion of the Bank, are
necessary or advisable for giving the Bank (so far as may be
possible under the local laws of the places where the assets
and undertaking of the Borrower are situated) a valid Lien of
the nature and kinds specified in 3.1 hereof, upon any and all
undertaking, property or assets, whether now owned or
hereafter acquired, to secure payment of moneys intended to be
secured pursuant to this Agreement and the Security Documents
and for better assuring, mortgaging, pledging, charging,
assigning, transferring, hypothecating, granting a security
interest in and confirming unto the Bank the such assets and
undertaking, and for conferring upon the Bank such power of
sale and other powers over such assets and undertaking as are
hereby expressed to be conferred.
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SECTION 14.2 FINANCIAL RATIOS AND COVENANTS
The Borrower covenants and agrees with the Bank that the
Borrower, together with its consolidated Subsidiaries, as at the end of each
successive Computation Period shall have:
14.2.1 a ratio of Total Net Debt to EBITDA of not more than
3.00:1.00;
14.2.2 Fixed Charge Coverage Ratio of not less than
1.20:1.00; and
14.2.3 a minimum Net Income of not less than U.S. $1.00 per
year.
SECTION 14.3 DETERMINATION AND REPORTING OF BORROWING BASE
The Borrower covenants and agrees with the Bank that so long
as any amount payable hereunder is outstanding, as soon as practicable after the
end of each month, and in any event within 30 days after the end of each month,
or more frequently as reasonably required by the Bank if an Event of Default
shall have occurred and be continuing, and otherwise as herein provided, the
Borrower shall submit to the Bank a Borrowing Base Certificate for the purposes
of determining the Borrowing Base, together with such supporting documents as
the Bank reasonably deems desirable, all certified as being true and correct by
an officer of the Borrower authorized to sign an Officer's Certificate. The
Borrowing Base, once so redetermined and accepted by the Bank, shall remain in
effect until redetermined pursuant to this Section and so on from time to time.
The Borrower may update the Borrowing Base Certificate and supporting documents
more frequently than required hereunder and the most recently delivered
Borrowing Base Certificate shall be the applicable Borrowing Base Certificate
for purposes of determining the Borrowing Base, at any time.
SECTION 14.4 NEGATIVE COVENANTS OF THE BORROWER
The Borrower covenants and agrees with the Bank that, unless
the Bank otherwise consents in writing, so long as any amount payable hereunder
is outstanding:
14.4.1 Nature of Business - The Borrower shall not make any material
change in the nature of its business as carried on at the date
hereof.
14.4.2 Negative Pledge - The Borrower shall not, nor will it permit
any of its Subsidiaries to, create, issue, incur, assume or
permit to exist any mortgage, charge, Lien on any of its
undertaldngs or assets, other than Permitted Encumbrances and
the Lien of the Security Documents.
14.4.3 Sale of Assets - The Borrower shall not, except as permitted
by the provisions of the Security Documents, sell, lease,
assign, transfer or otherwise dispose of (whether in one
transaction or in a series of related transactions) all or any
portion of the Collateral, other than sales of software
licenses and equipment to customers
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in the ordinary course of business or the sale or disposition
of redundant or obsolete equipment.
14.4.4 Dividends - The Borrower shall not declare or pay any
dividends on any of its shares without the prior written
consent of the Bank.
14.4.5 Distributions of Collateral - The Borrower shall not, except
as permitted by the provisions of this Agreement and the
Security Documents, distribute any of the Collateral to any
Person.
14.4.6 Distributions of Cash - Except as permitted in clause 14.4.12
hereof, and except as otherwise herein specifically provided,
the Borrower shall not, without the prior written consent of
the Bank, distribute any funds in any form to any Person.
14.4.7 No Modification to Material Agreement - The Borrower shall not
modify any of the terms of the Purchase Agreement or any other
agreement to which it is a party which could reasonably be
expected to have a Material Adverse Effect without the prior
written consent of the Bank, which may be withheld it the sole
discretion of the Bank.
14.4.8 Expenditures - The Borrower shall not make any expenditures
for fixed or capital assets in excess of U.S. $1,500,000, or
the Equivalent Amount in Canadian Dollars, annually.
14.4.9 No Dissolution - The Borrower shall not, nor will it permit
any Subsidiary to, liquidate, dissolve or wind-up or take any
steps or proceedings in connection therewith.
14.4.10 Indebtedness - Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create, incur,
assume or otherwise become or remain directly or indirectly
liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Permitted Existing Indebtedness and Permitted
Refinancing Indebtedness in respect thereof;
(c) Indebtedness in respect of obligations secured by
Permitted Encumbrances;
(d) subject to the terms of Section 14.4.11, Indebtedness
arising from intercompany loans and advances:
(i) from any Subsidiary to the Borrower or any
wholly-owned Subsidiary or
(ii) from the Borrower to any wholly-owned
Subsidiary;
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provided, that such Indebtedness shall be expressly
subordinate to the payment in full in cash of the
Secured Obligations on terms satisfactory to the
Bank,
(e) Indebtedness with respect to surety, appeal and
performance bonds obtained by the Borrower or any of
its Subsidiaries in the ordinary course of business,
in the aggregate not exceeding U.S. $5,000,000, or
the Equivalent Amount in Canadian Dollars, at any one
time outstanding; and
(f) trade payables incurred in the ordinary course of
business and usual payables related to salaries of
employees (including amounts payable for services
rendered by consultants under contract to the
Borrower), and related benefits and source
deductions.
14.4.11 Intercompany Loans - Neither the Borrower nor any of its
Subsidiaries shall make any loans to any other Subsidiary of
the Borrower except to the extent any such loans shall be
evidenced by promissory notes which provide that if any
acceleration of the Obligations under this Agreement shall
occur, the obligations under such promissory note shall
immediately become due and payable without any election or
action on the part of such Person.
14.4.12 Investments - Neither the Borrower nor any of its Subsidiaries
shall directly or indirectly make or own any investment
except:
(a) Investments in cash and Cash Equivalents;
(b) Investments consisting of trade receivables or
received in connection with the bankruptcy or
reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other
disputes with, customers and suppliers arising in the
ordinary course of business;
(c) Investments consisting of deposit accounts maintained
by the Borrower and its Subsidiaries in the ordinary
course of business in connection with its cash
management system;
(d) Investments consisting of non-cash consideration from
a sale, assignment, transfer, lease, conveyance or
other disposition of property permitted hereunder or
under the Security Documents; and
(e) Investments consisting of:
(i) intercompany loans from the Borrower to its
Subsidiaries permitted under clause 14.4.11
hereof, and
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(ii) a one time, demand, non-revolving loan by
the Borrower to Telvent in an amount not to
exceed U.S.$ 6,100,000, evidenced by a
demand promissory note which provides that:
(A) if any acceleration of the
Obligations under this Agreement
shall occur, the obligations under
such loan shall immediately become
due and payable without any election
or action on the part of such
Person, and
(B) such promissory note shall be
pledged to the Bank on terms
satisfactory to the Bank, and
(iii) Voting Shares and all warrants, options or
other rights to acquire Voting Shares (but
excluding any debt security that is
convertible into, or exchangeable for,
Voting Shares), excluding any incentive
arrangements or obligations or payments
thereunder.
SECTION 14.5 SUCCESSOR CORPORATION
The Borrower shall not, and shall not permit any Subsidiary
to, enter into any transaction whereby all or substantially all of its
undertaking, property and assets would become the property of any other
corporation (herein called a "SUCCESSOR CORPORATION") whether by way of
reconstruction, reorganization, recapitalization, consolidation, amalgamation,
merger, transfer, sale or otherwise, unless:
14.5.1 prior to or contemporaneously with the consummation of such
transaction the Borrower, or such Subsidiary, as the case may
be, and the successor corporation shall have executed such
instruments and done such things as, in the opinion of
counsel, are necessary or advisable to establish that upon the
consummation of such transaction:
(a) the successor corporation will have assumed all the covenants
and obligations of the Borrower, or such Subsidiary, as the
case may be, under this Agreement, and
(b) this Agreement will be a valid and binding obligation of the
successor corporation entitling the Bank, as against the
successor corporation, to exercise all its rights under this
Agreement;
14.5.2 such transaction shall be on such terms and shall be carried
out in such manner as to not be materially prejudicial to the
rights and powers of the Bank hereunder; and
14.5.3 such transaction shall not result in the assets of the
successor corporation being subjected to any encumbrances
other than Permitted Encumbrances.
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Wherever the conditions of this Section 14.5 shall have been
duly observed and performed the successor corporation shall possess and from
time to time may exercise each and every right and power of the Borrower under
this Agreement in the name of the Borrower.
ARTICLE 15
EVENTS OF DEFAULT AND ACCELERATION
SECTION 15.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events
(each such event being herein referred to as an "EVENT OF DEFAULT") shall
constitute a default under this Agreement:
15.1.1 if the Borrower defaults in payment of the principal of any
Loan when due and payable and such default continues
unremedied for four Banking Days after notice of such default
by the Bank to the Borrower specifying such default and
requiring the Borrower to put an end to the same (which said
notice may be given by the Bank, in its discretion);
15.1.2 if the Borrower defaults in payment of (i) any interest
(including, if applicable, default interest) due on any Loan,
(ii) any fee with respect to the Bankers' Acceptance, (iii)
any Unused Line Fee, or (iv) any other amount payable by
either Borrower hereunder when due and payable and such
default continues unremedied for four Banking Days after
notice of such default by the Bank to the Borrower specifying
such default and requiring the Borrower to put an end to the
same (which said notice may be given by the Bank);
15.1.3 if the Borrower or any Guarantee Subsidiary neglects to
observe or perform any other covenant or obligation contained
in this Agreement, the Documents or the Security Documents
(other than a covenant or condition whose breach or default in
performance is elsewhere in this Section specifically dealt
with) and such default continues unremedied for 15 Banking
Days after notice of such default by the Bank to the Borrower
specifying such default and requiring the Borrower to put an
end to the same;
15.1.4 if any Guarantee of any Guarantee Subsidiary ceases to be
enforceable against the Guarantor thereunder;
15.1.5 if any Guarantor fails to pay any amount when due under any
Guarantee;
15.1.6 if the Borrower or any Guarantee Subsidiary is at any time not
Solvent;
15.1.7 if in the sole judgment of the Bank, reasonably exercised, any
party to the Purchase Agreement fails to fully perform the
covenants, terms and conditions on its part to be performed
pursuant to the Purchase Agreement which could reasonably be
expected to have a Material Adverse Effect, and such failure
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continues unremedied for 15 Banking Days after notice of such
failure by the Bank to the Borrower specifying such failure;
15.1.8 if one or more events of default as defined in agreements,
indentures or instruments evidencing, or under which, any
indebtedness for borrowed money of the Borrower or any
Guarantee Subsidiary for principal amounts aggregating in
excess of U.S. $100,000, or the Equivalent Amount in Canadian
Dollars, which are not payable on demand (unless demand has
been made therefor), is outstanding and such indebtedness
shall be capable of acceleration so that the same shall be or
have become due and payable or subject to a right to become
due and payable prior to the date on which the same would
otherwise become due and payable;
15.1.9 if a decree or order of a court having jurisdiction in the
premises is entered adjudging either Borrower or any Guarantee
Subsidiary bankrupt or insolvent, or approving as properly
filed a petition seeking the winding up of such party under
the Companies' Creditors Arrangement Act (Canada), the
Bankruptcy and Insolvency Act (Canada) or the Winding Up Act
(Canada) or any other bankruptcy, insolvency or analogous laws
or issuing sequestration or process of execution against, or
against any substantial part of the assets of, such party or
ordering the winding up or liquidation of its affairs, (or
similar process or proceeding in any other jurisdiction) and
any such decree or order continues unstayed and in effect for
a period of 15 Banking Days;
15.1.10 if the Borrower or any Guarantee Subsidiary becomes insolvent,
makes any assignment in bankruptcy or makes any other
assignment for the benefit of creditors, makes any proposal
under the Bankruptcy and Insolvency Act (Canada) or any
comparable law, seeks relief under the Companies' Creditors
Arrangement Act (Canada), the Winding Up Act (Canada) or any
other bankruptcy, insolvency or analogous law in any other
jurisdiction, is adjudged bankrupt, files a petition or
proposal to take advantage of any act of insolvency, consents
to or acquiesces in the appointment of a trustee, receiver,
receiver and manager, interim receiver, custodian,
sequestrator or other Person with similar powers of itself or
of all or any substantial portion of its assets, or files a
petition or otherwise commences any proceeding seeking any
reorganization, arrangement, composition or readjustment under
any applicable bankruptcy, insolvency, moratorium,
reorganization or other similar law affecting creditors'
rights or consents to, or acquiesces in, the filing of such a
petition;
15.1.11 one or more final judgments for the payment of money in an
amount in Canadian Dollars in the aggregate exceeding U.S.
$100,000, or the Equivalent Amount in Canadian Dollars, shall
be rendered by a court of record against the Borrower or any
Guarantee Subsidiary in any jurisdiction or jurisdictions in
which any such party has property or assets which are material
to the business, operations or financial condition of the
Borrower and its Subsidiaries taken as a whole and the
Borrower or any such Subsidiary shall not discharge the same
or provide for its
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discharge in accordance with its terms, or procure a stay of
execution thereof within 30 days from the date of entry
thereof, and within said period of 30 days, or such longer
period during which execution of such judgment shall have been
stayed, appeal such final judgment and cause the execution
thereof to be stayed during such appeal;
15.1.12 if any representation or warranty made by the Borrower in this
Agreement, the Documents or any certificate or other document
at any time delivered hereunder to the Bank shall prove to
have been incorrect or misleading in any material respect in
respect of the business, operations or financial condition of
the Borrower and its Subsidiaries taken as a whole as of the
date thereof, which could reasonably be expected to have a
Material Adverse Effect;
15.1.13 if proceedings are commenced for the dissolution, liquidation
or winding-up of either Borrower, any of its Guarantee
Subsidiaries that are not wholly owned, or for the suspension
of the operations of either Borrower or any of its Guarantee
Subsidiaries that are not wholly owned unless such proceedings
are being actively and diligently contested in good faith;
15.1.14 if Telvent shall fail to provide funds as contemplated by
Section 2.5 hereof; or
15.1.15 if there are any differences between the Borrower's January
31, 2003 Unaudited Balance Sheet and the Borrower's January
31, 2003 Audited Balance Sheet for any item which could
reasonably be expected to have a Material Adverse Effect.
SECTION 15.2 ACCELERATION
If a Major Change in Ownership or any Event of Default shall
occur and be continuing, the entire principal amount of Loans then outstanding
and all accrued and unpaid interest thereon and all other payments due
hereunder, at the option of the Bank become immediately due and payable with
interest thereon, at the rate or rates determined as herein provided, to the
date of actual payment thereof, all without notice, presentment, protest,
demand, notice of dishonor or any other demand or notice whatsoever, all of
which are hereby expressly waived by the Borrower. In such event the Bank may,
in its discretion, exercise any right or recourse, or proceed by any action,
suit, remedy or proceeding against the Borrower, authorized or permitted by law
for the recovery of all the indebtedness and liabilities of the Borrower to the
Bank, or any combination of the foregoing, and proceed to exercise any and all
rights hereunder and no such remedy for the enforcement of the rights of the
Bank shall be exclusive of or dependent on any other remedy but any one or more
of such remedies may from time to time be exercised independently or in
combination.
SECTION 15.3 DEFAULT INTEREST
If an Event of Default or a Major Change in Ownership shall
occur and be continuing, the Bank may convert, at the Equivalent Amount, if
applicable, any or all Canadian Prime Rate Loans, Banker's Acceptances, Letters
of Credit, L/C Liabilities or Libor Loans, at
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any time, to U.S. Base Rate Loans. Interest shall accrue in respect of all
Obligations outstanding at that time:
15.3.1 on each U.S. Base Rate Loan at the Interest Rate then in
effect plus 2% per annum; and
15.3.2 on L/C Liabilities in respect of each Letter of Credit which
is denominated in U.S. Dollars, and each Libor Loan, which the
Bank has not then converted to a U.S. Base Rate Loan, at the
Interest Rate then in effect for U.S. Base Rate Loans plus 2%
per annum; and
15.3.3 on L/C Liabilities in respect of each Letter of Credit which
is denominated in Canadian Dollars, Canadian Prime Rate Loan,
Banker's Acceptance, which the Bank has not then converted to
a U.S. Base Rate Loan, at the Interest Rate then in effect for
Canadian Prime Rate Loans plus 2% per annum;
together in each case with interest on all overdue interest at the same rate,
from the date of the Event of Default or Major Change in Ownership in the case
of each U.S. Base Rate Loan and Canadian Prime Rate Loan outstanding on the such
date, or from the date of conversion in the case of any U.S. Base Rate Loan into
which a Letter of Credit, L/C Liabilities or Banker's Acceptance is converted
under this Section, for so long as such default shall continue, before and after
judgment, such interest to be payable on demand.
SECTION 15.4 REMEDIES CUMULATIVE AND WAIVERS
For greater certainty, it is expressly understood and agreed
that the respective rights and remedies of the Bank hereunder or under any other
document or 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 Bank of any right
or remedy for a default or breach of any term, covenant, condition or agreement
contained in this Agreement or other document or instrument executed pursuant to
this Agreement 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
Bank may be lawfully entitled for such default or breach. Any waiver by the Bank
of the strict observance, performance or compliance with any term, covenant,
condition or agreement herein contained and any indulgence granted, either
expressly or by course of conduct, by the Bank 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 Bank under this Agreement
or any other document or instrument executed pursuant to this Agreement as a
result of any other default or breach hereunder or thereunder.
SECTION 15.5 TERMINATION OF BANK'S OBLIGATIONS
The occurrence of an Event of Default or a Major Change in
Ownership shall relieve the Bank of all obligations to permit any further
Drawdowns hereunder.
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ARTICLE 16
CHANGE OF CIRCUMSTANCES
SECTION 16.1 MARKET DISRUPTION
In the event that at any time subsequent to the giving of a
Drawdown Notice, Rollover Notice or Conversion Notice to the by the Borrower
with regard to any Libor Loan but before the date of the Drawdown, Rollover or
Conversion, as the case may be, the Bank make a determination, which shall be
binding upon the Borrower, that:
16.1.1 by reason of circumstances affecting the London interbank
market adequate and fair means do not exist for ascertaining
the rate of interest with respect to a Libor Loan during the
Interest Period selected;
16.1.2 the making or continuing of the Libor Loan by the Bank has
been made impracticable by the occurrence of an event which
materially or adversely affects the London interbank market;
or
16.1.3 the cost to the Bank of funding the Libor Loan for the
immediately following Interest Period does not accurately
reflect the effective cost of the Bank' funding for that
Interest Period,
then the Bank shall give notice thereof to the Borrower and the Borrower shall,
within one Banking Day after receipt of such notice, give the Bank a revised
Drawdown Notice or a Conversion Notice, as the case may be, which specifies the
Drawdown of a Canadian Prime Rate Loan, a U.S. Base Rate Loan, on the last day
of the applicable Interest Period. In the event the Borrower fails to give, if
applicable, a Conversion Notice, such Libor Loan shall be converted on the last
day of the applicable Interest Period, to the extent possible, into a U.S. Base
Rate Loan.
SECTION 16.2 CHANGE IN LAW
In the event of any change after the date hereof in any applicable law, rule,
guideline, regulation, treaty or official directive (whether or not having the
force of law) or in the interpretation or application thereof by any court or by
any governmental agency, central bank or other authority or entity charged with
the administration thereof in Canada or the United States of America which now
or hereafter:
16.2.1 subjects the Bank to any tax (other than withholding tax) or
changes the basis of taxation, or increases any existing tax,
on payments of principal, interest, fees or other amounts
payable by the Borrower to the Bank under this Agreement
(except for taxes on the overall net income of the Bank);
16.2.2 imposes, modifies or deems applicable any reserve, special
deposit or similar requirements against assets held by, or
deposits in or for the account of or loans by or any other
acquisition of funds by, an office of the Bank; or
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16.2.3 imposes on the Bank or expects there to be maintained by the
Bank any capital adequacy or additional capital requirements
in respect of any Loans or the Credit Facility hereunder, or
any other condition with respect to this Agreement,
and the result of any of the foregoing shall be to increase the cost to, or
reduce the amount of principal, interest or other amount received or receivable
by the Bank hereunder or its effective return hereunder in respect of making,
maintaining or funding the Loan under the Credit Facility the Bank shall
determine that amount of money which shall compensate the Bank for such increase
in cost or reduction in income (herein referred to as "ADDITIONAL
COMPENSATION"). Upon the Bank having determined that it is entitled to
Additional Compensation in accordance with the provisions of this Section, the
Bank shall, within 20 days, so notify the Borrower. The Borrower shall pay to
the Bank within 10 Banking Days of the giving of such notice and receipt of the
aforementioned certificate the Bank's Additional Compensation calculated to the
date of such notification. The Bank shall be entitled to be paid such Additional
Compensation from time to time to the extent that the provisions of this Section
are then applicable. The Bank shall endeavor to limit the incidence of any such
Additional Compensation, including seeking recovery for the account of the
Borrower, by appealing any assessment at the expense of the Borrower upon the
Borrower's request. The Bank shall eliminate such Additional Compensation should
the cause of the same be rescinded, removed, repealed or withdrawn.
SECTION 16.3 REPAYMENT OF AFFECTED LOAN
Notwithstanding the provisions hereof, if the Bank gives the
notice provided for in Section 16.2 with respect to any Loan (an "AFFECTED
LOAN"), the Borrower may repay in full without penalty the full amount of the
Affected Loan outstanding together with accrued and unpaid interest on the
principal amount so prepaid up to the date of such prepayment, such Additional
Compensation as may be applicable to the date of such payment and all costs,
losses and expenses incurred by the Bank by reason of the liquidation or
re-employment of deposits or other funds resulting from the repayment of such
Affected Loan or any part thereof on other than the last day of the applicable
Interest Period, and upon such payment being made that Bank's obligations to
make such Affected Loans to the Borrower under this Agreement shall terminate.
The Bank shall prepare a certificate of a duly authorized officer of the Bank
setting forth the basis of calculation thereof and such certificate shall be
delivered by the Bank to the Borrower. If pursuant to the provisions of this
Section or any other provision hereof the Borrower become obliged to pay such
Additional Compensation or such costs, losses or expenses, the Bank shall use
its best efforts to minimize such Additional Compensation and such costs, losses
or expenses.
SECTION 16.4 ILLEGALITY
If, in Canada or the United States of America the adoption of
any applicable law, regulation, treaty or official directive (whether or not
having the force of law) or any change therein or in the interpretation or
application thereof by any court or by any governmental or other authority or
central bank or comparable agency or any other entity charged with the
interpretation or administration thereof or compliance by the Bank with any
request or direction (whether or not having the force of law) of any such
authority, central bank or comparable agency or entity, now or hereafter makes
it unlawful or impossible for the Bank to make, fund or
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maintain a Loan under the Credit Facility or to give effect to its obligations
in respect of such Loan, the Bank may, by written notice thereof to the Borrower
declare its obligations under this Agreement to be terminated whereupon the same
shall forthwith terminate, and the Borrower shall repay within the time required
by such law (or at the end of such longer period as the Bank at its discretion
has agreed) the principal of the Loan together with accrued interest, such
Additional Compensation as may be applicable to the date of such payment and all
costs, losses and expenses incurred by the Bank by reason of the liquidation or
re-employment of deposits or other funds resulting from the repayment of such
Loan or any part thereof on other than the last day of the applicable Interest
Period. The Bank shall prepare a certificate of a duly authorized officer of the
Bank setting forth the basis of calculation thereof and such certificate shall
be delivered by the Bank to the Borrower. If pursuant to the provisions of this
Section or any other provision hereof the Borrower becomes obliged to pay such
Additional Compensation or such costs, losses or expenses, the Bank shall use
its best efforts to minimize such Additional Compensation and such costs, losses
or expenses. If any such change shall only affect a portion of the Bank's
obligations under this Agreement which is, in the opinion of the Bank 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 the Bank or the Borrower hereunder, the Bank shall only declare
its obligations under that portion so terminated.
ARTICLE 17
COSTS, EXPENSES AND INDEMNIFICATION
SECTION 17.1 COSTS AND EXPENSES
The Borrower shall pay promptly upon receipt of written notice
from the Bank all reasonable Out of pocket costs and expenses in connection with
preparation, printing, execution and delivery of this Agreement and the other
Documents to be delivered hereunder whether or not any Drawdown has been made
hereunder, including, without limitation, the reasonable fees and reasonable
out-of-pocket expenses of counsel to the Bank with respect thereto and with
respect to advising the Bank as to its rights and responsibilities under this
Agreement and the other documents to be delivered hereunder. The Borrower shall,
in addition, pay promptly upon receipt of written notice from the Bank all out
of pocket costs and expenses in connection with the Bank's annual collateral
field audit expenses in connection with the Credit Facility. Except for ordinary
expenses of the Bank relating to the day-to-day administration of this
Agreement, the Borrower further agree to pay within 10 Banking Days of demand by
Bank all reasonable costs and expenses in connection with the preparation or
review of waivers, consents and amendments and questions of interpretation of
this Agreement and in connection with the establishment of the validity and
enforceability of this Agreement and the preservation or enforcement of rights
of the Bank under this Agreement and other documents to be delivered hereunder,
including, without limitation, all reasonable costs and expenses sustained by
the Bank as a result of any failure by the Borrower to perform or observe their
obligations contained in this Agreement and the other documents to be delivered
hereunder.
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SECTION 17.2 INDEMNIFICATION BY TUE BORROWER
17.2.1 In addition to any liability of the Borrower to the Bank under
any other provision hereof, the Borrower and its Subsidiaries
shall indemnify the Bank and hold the Bank harmless against
any reasonable loss or expense incurred by the Bank to third
parties as a result of any failure by the Borrower to fulfill
any of its obligations hereunder 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 the Bank to fund the Bankers'
Acceptance or to fund or maintain any Loan as a result of the
Borrower's failure to complete a Drawdown or to make any
payment, repayment or prepayment on the date required
hereunder or specified by it in any notice given hereunder;
the Borrower's failure to provide for the payment to the Bank
the full principal amount of the Bankers' Acceptance on its
maturity date; the Borrower's failure to pay any other amount,
including without limitation any interest or fee, due
hereunder on its due date; the repayment or prepayment of a
Libor Loan otherwise than on the last day of its Interest
Period; the provision of funds for any outstanding Bankers'
Acceptance before the maturity date of the Bankers'
Acceptance; or the Borrower's failure to give any notice
required to be given by it to the Bank hereunder.
17.2.2 The Borrower shall indemnify the Bank and each director,
officer, employee and affiliate of the Bank (an "INDEMNIFIED
PARTY") in connection with any expenses, losses, claims,
damages or liabilities to which any such Indemnified Party may
become subject insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or in
any way relate or result from the actions of the Borrower or
any of its Subsidiaries in connection with the use of Loans,
and to reimburse such Indemnified Party for any legal or other
expenses incurred in connection with the investigating,
defending or participating in any such loss, claim, damage,
liability or action. Notwithstanding the foregoing the
Borrower shall have no obligation hereunder with respect to
indemnified liabilities or expenses arising out of the
negligence or willful misconduct of an indemnified party.
17.2.3 The Bank shall notify the Borrower of any claim to be made by
the Bank pursuant to Articles 16 or 17 within a period of one
year after the Bank first had knowledge of the facts giving
rise to the claim and failing the giving of such notice within
such time period the claim shall be extinguished and the Bank
shall have no further claim thereon.
SECTION 17.3 INTEREST ON UNPAID COSTS AND EXPENSES
Subject always to the provisions of Section 15.3 hereof,
unless the payment of interest is otherwise specifically provided for herein,
where the Borrower fails to pay any amount required to be paid by it hereunder
when due having received notice that such amount is due, the Borrower shall pay
interest on such unpaid amount from the time such amount is due until paid at an
annual rate equal to the Interest Rate then in effect in respect of Canadian
Prime Rate Loans,
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plus 2% per annum as regards amounts denominated in Canadian Dollars and at an
annual rate equal to the Interest Rate then in effect in respect of U.S. Base
Rate Loans, plus 2% per annum as regards amounts denominated in United States
Dollars.
ARTICLE 18
GENERAL
SECTION 18.1 EXCHANGE AND CONFIDENTIALITY OF INFORMATION
The Bank acknowledges the confidential nature of the
financial, operational and other information and data provided and to be
provided to them by the Borrower pursuant hereto (the "INFORMATION") and agree
to use all reasonable efforts to prevent the disclosure thereof. Notwithstanding
the foregoing, the Bank may disclose all or any part of the Information if, in
its opinion, such disclosure is desirable or required in connection with any
actual or threatened judicial, administrative or governmental proceeding or any
investigation by any judicial authority, law enforcement agency or taxation
authority, or any other process under which it is legally compelled or otherwise
required to make to avoid standing liable for contempt or suffering other
material censure or penalty, including any proceeding or investigation under or
in respect of any rule or regulation promulgated by any banking regulatory
authority, securities regulatory authority, stock exchange or securities
commission, and it shall incur no liability in respect of any disclosure of
information to any, or pursuant to any such requirement.
The Bank agrees with the Borrower, however that it shall
endeavor provide the Borrower with notice of any such anticipated disclosure of
Information so that the Borrower may, at its sole expense, seek a protective
order or other appropriate relief, or waive compliance with the provisions of
this Section. If such protective order or other remedy is not obtained or the
Borrower waives compliance with this Section, then the Bank will furnish only
that portion of the Information which, in its sole opinion, it is legally
required to furnish. Notwithstanding the foregoing, the Bank shall not be liable
to the Borrower for any failure on the part of the Bank to give notice to the
Borrower pursuant to this Section.
SECTION 18.2 NOTICE
The address for notices of each of the Parties shall be as
follows:
TO: Telvent Canada Ltd. Suite 200, 10333 Southport Road S.W. Calgary,
Alberta, T2W 3X6
Attention: Steve Aasen
and: Cameron Demcoe
Telephone: (403) 212-2204 (Steve Aasen)
(403) 212-22229 (Cameron Demcoe)
Facsimile: (403) 212-2450 (Steve Aasen)
(403) 212-2435 (Cameron Demcoe)
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TO: LaSalle Business Credit, a division Suite 1500 Maritime Life Tower, 79 Wellington
of ABN AMRO Bank N.V., Canada Branch Street, P.O. Box 114, Toronto Dominion Centre
Toronto Ontario M5K 1G8
Attention: Darcy Mack
Telephone: (416) 367 7967
Facsimile: (416) 367 7943
WITH A COPY TO: 135 S. LaSalle Street Chicago, IL 60603
Attention: Amy Damitio
LaSalle Bank National
Association Telephone: (312) 904-2743
Facsimile: (312) 904-0870
Each of the Addressees may from time to time change their
address for service herein by giving written notice to the other Addressee. Any
notice, required or contemplated hereunder, may be served by personal service
upon an officer or director of a Addressee or by telecopy, facsimile
transmission or mailing the same, except during periods of actual or anticipated
postal disruptions, by prepaid registered post in a properly addressed envelope
addressed to the Addressee at its address for service hereunder, as the same may
be amended from time to time in accordance herewith. Any notice given by service
upon an officer or director of a Addressee shall be deemed to be given on the
date of such service. Any notice given by mail shall be deemed to be given to
and received by the addressee on the fifth Business Day after the mailing
thereof. Any notice given by telecopy or facsimile transmission shall be deemed
to be given to and received by the addressee on the next Business Day after the
sending thereof.
SECTION 18.3 GOVERNING LAW
This Agreement shall be conclusively deemed to be a contract
made under, and shall for all purposes be governed by and construed in
accordance with the laws of the Province of Alberta and the federal laws of
Canada therein applicable to contracts made in and to be wholly performed in
such Province, without prejudice to or limitation of any other rights or
remedies available under the laws of any jurisdiction where property or assets
of the Borrower may be found.
SECTION 18.4 CONSENT TO JURISDICTION
18.4.1 The Borrower hereby irrevocably submits to the jurisdiction of
any Alberta court sitting in Calgary in any action or
proceeding arising out of or relating to this Agreement and
the Security Documents and hereby irrevocably agrees that all
claims in respect of any such action or proceeding may be
heard and determined in such Alberta court. The Borrower
hereby consents to service upon it at its address set out in
Section 18.2 of copies of the statement of claim and any
process
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issued in respect of any such action or proceeding. The
Borrower agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law.
18.4.2 Nothing in this Section shall affect the right of the Bank to
serve legal process in any other manner permitted by law or
affect the right of the Bank to bring any action or proceeding
against the Borrower or its property in the courts of other
jurisdictions.
SECTION 18.5 JUDGMENT CURRENCY
18.5.1 If for the purpose of obtaining or enforcing judgment against
the Borrower or any Subsidiary of the Borrower in any court in
any jurisdiction, it becomes necessary to convert into any
other currency (such other currency being hereinafter in this
Section referred to as the "JUDGMENT CURRENCY") an amount due
in Canadian Dollars or United States Dollars under this
Agreement, the conversion shall be made at the rate of
exchange prevailing on the Banking Day immediately preceding
the date of actual payment of the amount due, in the case of
any proceeding in the courts of any jurisdiction, including
the Province of Alberta, if the courts thereof will give
effect to such conversion being made on such date and
otherwise on the date on which the judgment is given, (the
date as of which such conversion is made pursuant to this
Section being hereinafter in this Section referred to as the
"JUDGMENT CONVERSION DATE").
18.5.2 If, in the case of any proceeding in the court of any
jurisdiction referred to in Section, there is a change in the
rate of exchange prevailing between the Judgment Conversion
Date and the date of actual payment of the amount due, the
Borrower shall pay such additional amount (if any, but in any
event not a lesser amount) as may be necessary to ensure that
the amount paid in the Judgment Currency, when converted at
the rate of exchange prevailing on the date of payment, will
produce the amount of Canadian Dollars or United States
Dollars, as the case may be, which could have been purchased
with the amount of Judgment Currency stipulated in the
judgment or judicial order at the rate of exchange prevailing
on the Judgment Conversion Date.
18.5.3 Any amount due from the Borrower under the provisions of
Section shall be due as a separate debt and shall not be
affected by judgment being obtained for any other amounts due
under or in respect of this Agreement.
18.5.4 The term "RATE OF EXCHANGE" in this Section means the noon
rate of exchange for Canadian interbank transactions in
Canadian Dollars or United States Dollars, as the case may be,
in the Judgment Currency published by the Bank of Canada for
the day in question, or if such rate is not so published by
the Bank of Canada, such rate shall mean the simple average of
the spot rates quoted for wholesale transactions by LaSalle
Bank National Association, in Chicago, Illinois at
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approximately noon (Toronto time) on that date in accordance
with its normal practice.
SECTION 18.6 BENEFIT OF THE AGREEMENT
This Agreement shall enure to the benefit of and be binding
upon the Borrower and the Bank, and their respective successors and assigns.
SECTION 18.7 ASSIGNMENT AND NOVATION
The Bank may not, without the prior written consent of the
Borrower, assign their respective rights and obligations under this Agreement
and novate the assignee into this Agreement, except that the Bank may, in
consultation with the Borrower, at any time and from time to time, sell, assign,
transfer or otherwise grant an interest in any Loan to a Subsidiary or Affiliate
of the Bank.
SECTION 18.8 SEVERABILITY
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 18.9 WHOLE AGREEMENT
This Agreement constitutes the whole and entire agreement
between the parties hereto in connection with the borrowings contemplated herein
and cancels and supersedes any prior agreements, undertakings, declarations,
commitments, representations, written or oral, in respect thereof.
SECTION 18.10 AMENDMENTS AND WAIVERS
Except as otherwise specifically provided herein, any
provision of this Agreement may be amended only by the Borrower and the Bank in
writing and may be waived only if the Bank so agrees in writing. Any such waiver
and any consent by the Bank under any provision of this Agreement may be given
subject to any conditions thought fit by the Bank. Any waiver or consent shall
be effective only in the instance and for the purpose for which it is given.
SECTION 18.11 FURTHER ASSURANCES
The Borrower, and the Bank shall promptly cure any default by
it in the execution and delivery of this Agreement to which it is a party. The
Borrower, at its expense, shall promptly execute and deliver to the Bank, upon
request by the Bank, all such other and further documents, agreements, opinions,
certificates and instruments in compliance with, or accomplishment of the
covenants and agreements of the Borrower hereunder or more fully to
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state the obligations of the Borrower as set out herein or to make any
recording, file any notice or obtain any consent, all as may be reasonably
necessary or appropriate in connection therewith.
SECTION 18.12 BINDING EFFECT
This Agreement shall become effective when it shall have been
executed by the Borrower and the Bank and thereafter shall be binding upon and
enure to the benefit of the Borrower and the Bank and their respective
successors and assigns. The Borrower shall not assign its rights and obligations
hereunder or any interest herein without the prior consent of all the Bank.
SECTION 18.13 TIME OF TEE ESSENCE
Time shall be of the essence of this Agreement.
SECTION 18.14 COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which taken together
shall be deemed to constitute one and the same instrument, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
IN WITNESS WHEREOF the Parties hereto have duly executed this
Agreement as of the date first above written.
TELVENT CANADA LTD. LASALLE BUSINESS CREDIT, A
DIVISION OF ABN AMRO BANK N.V.,
CANADA BRANCH
/s/ Cameron Demcoe /s/ Keith Hughes
------------------------------------ -------------------------------------
Cameron Demcoe Keith Hughes
------------------------------------ -------------------------------------
(Name) (Name)
Corporate Secretary Senior Vice President
------------------------------------ -------------------------------------
(Title) (Title)
/s/ Steve Aasen /s/ Darcy Mack
------------------------------------ -------------------------------------
Steve Aasen Darcy Mack
------------------------------------ -------------------------------------
(Name) (Name)
Vice President Business Controls Vice President, Asset Based Lending
------------------------------------ -------------------------------------
(Title) (Title)
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