Form 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Report of Foreign Issuer
Pursuant to Rule 13a - 16 or 15d - 16 of
the Securities Exchange Act of 1934
For the month of ___April___ 2007
(Commission File No. 000-24876)
TELUS Corporation
(Translation of registrant's name into English)
21st Floor, 3777 Kingsway
Burnaby, British Columbia V5H 3Z7
Canada
(Address of principal registered offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F:
X
Form 20-F _____ Form 40-F _____
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of
1934.
X
Yes _____ No _____
This Form 6-K consists of the following:
______________________________________________________________________________
TELUS CORPORATION and TELUS COMMUNICATIONS INC.
as Borrowers
- and -
THE TORONTO-DOMINION BANK
as Administration Agent
- and -
THOSE INSTITUTIONS WHOSE NAMES ARE SET FORTH
ON THE EXECUTION PAGES HEREOF UNDER THE
HEADING "LENDERS"
as Lenders
______________________________________________________________________________
2007 CREDIT AGREEMENT
______________________________________________________________________________
TD SECURITIES
Lead Arranger
TD SECURITIES
Bookrunner
BANK OF MONTREAL, THE BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE
and ROYAL BANK OF CANADA
Syndication Agents
______________________________________________________________________________
Dated for reference March 2, 2007
ARTICLE 1 INTERPRETATION..............................................1
1.1 Defined Terms.......................................................1
1.2 Computation of Time Periods........................................31
1.3 Accounting Terms...................................................31
1.4 Incorporation of Schedules.........................................32
1.5 Gender; Singular, Plural, etc......................................32
1.6 Use of Certain Words...............................................32
1.7 Successors, etc....................................................32
1.8 Interpretation not Affected by Headings, etc.......................32
1.9 General Provisions as to Certificates and Opinions, etc............32
1.10 Existing Facilities................................................33
ARTICLE 2 THE CREDIT FACILITY........................................33
2.1 Credit Facility....................................................33
2.2 Amortization.......................................................36
2.3 Replacement of Borrower............................................38
2.4 Voluntary Reductions and Prepayments...............................39
2.5 Payments...........................................................40
2.6 Computations.......................................................41
2.7 Fees...............................................................42
2.8 Interest on Overdue Amounts........................................42
2.9 Account Debit Authorization........................................43
2.10 Administration Agent's Discretion on Allocation....................43
2.11 Where Borrower Fails to Pay........................................43
2.12 Rollover and Conversion............................................44
ARTICLE 3 ADVANCES...................................................45
3.1 Advances...........................................................45
3.2 Making the Advances (except Swingline Advances)....................45
3.3 Interest on Advances...............................................47
ARTICLE 4 BANKERS' ACCEPTANCES.......................................48
4.1 Acceptances........................................................48
4.2 Drawdown Request...................................................49
4.3 Form of Bankers' Acceptances.......................................49
4.4 Completion of Bankers' Acceptance..................................49
4.5 BA Proceeds........................................................50
4.6 Stamping Fee.......................................................50
4.7 Payment at Maturity................................................50
4.8 Power of Attorney Respecting Bankers' Acceptances..................50
4.9 Prepayments........................................................51
4.10 Default............................................................51
4.11 Non-Acceptance Lenders.............................................51
ARTICLE 5 LETTERS OF CREDIT..........................................52
5.1 Letters of Credit Commitment.......................................52
5.2 Notice of Issuance.................................................53
5.3 Form of Letter of Credit...........................................53
5.4 Procedure for Issuance of Letters of Credit........................53
5.5 Payment of Amounts Drawn Under Letters of Credit...................54
5.6 Fees...............................................................54
5.7 Obligations Absolute...............................................55
5.8 Indemnification; Nature of Lenders' Duties.........................56
5.9 Default, Maturity, etc.............................................57
ARTICLE 6 CLOSING CONDITIONS.........................................59
6.1 Closing Conditions to Initial Availability.........................59
6.2 General Conditions for Accommodations..............................60
6.3 Conversions and Rollovers..........................................61
6.4 Deemed Representation..............................................61
6.5 Conditions Solely for the Benefit of the Lenders...................61
6.6 No Waiver..........................................................61
6.7 Final Date for Initial Accommodation...............................61
ARTICLE 7 REPRESENTATIONS AND WARRANTIES.............................62
7.1 Existence..........................................................62
7.2 Corporate Authority................................................62
7.3 Authorization, Governmental Approvals, etc.........................62
7.4 Enforceability.....................................................62
7.5 No Breach..........................................................63
7.6 Subsidiaries.......................................................63
7.7 Compliance.........................................................63
7.8 Financial Statements...............................................64
7.9 Material Adverse Effect............................................64
7.10 Pari Passu.........................................................64
ARTICLE 8 COVENANTS..................................................64
8.1 Affirmative Covenants..............................................64
8.2 Negative Covenants.................................................67
8.3 Administration Agent May Perform Covenants.........................69
ARTICLE 9 CHANGES IN CIRCUMSTANCES...................................69
9.1 Illegality.........................................................69
9.2 Circumstances Requiring Different Pricing..........................70
9.3 Increased Costs....................................................70
9.4 Indemnification....................................................72
9.5 Taxes, Costs, Etc..................................................72
ARTICLE 10 EVENTS OF DEFAULT..........................................74
10.1 Events of Default..................................................74
10.2 Effect.............................................................76
10.3 Right of Set-Off...................................................77
10.4 Currency Conversion After Acceleration.............................77
ARTICLE 11 THE AGENTS AND THE LENDERS.................................77
11.1 Authorization and Action...........................................77
11.2 Duties and Obligations.............................................78
11.3 Agents and Affiliates..............................................79
11.4 Lender Credit Decision.............................................80
11.5 Indemnifications...................................................80
11.6 Successor Administration Agent.....................................81
11.7 Sub-Agent or Co-Agent..............................................81
11.8 Cash Collateral....................................................82
ARTICLE 12 MISCELLANEOUS..............................................82
12.1 Sharing of Payments; Records.......................................82
12.2 Amendments, etc....................................................86
12.3 Notices, etc.......................................................87
12.4 Expenses...........................................................89
12.5 Judgment Currency..................................................90
12.6 Governing Law......................................................91
12.7 Successors and Assigns.............................................92
12.8 Conflict...........................................................94
12.9 Confidentiality....................................................95
12.10 Severability.......................................................95
12.11 Prior Understandings...............................................95
12.12 Time of Essence....................................................95
12.13 Counterparts.......................................................96
SCHEDULES
(Intentionally Deleted)
THIS AGREEMENT is dated for reference March 2, 2007.
AMONG:
TELUS CORPORATION and TELUS
COMMUNICATIONS INC.
as Borrowers
OF THE FIRST PART
AND:
THE TORONTO-DOMINION BANK
as Administration Agent
OF THE SECOND PART
AND:
THOSE INSTITUTIONS WHOSE NAMES ARE SET
FORTH ON THE EXECUTION PAGES HEREOF UNDER
THE HEADING "LENDERS"
as Lenders
OF THE THIRD PART
WHEREAS TELUS has requested that the Lenders make available to it a credit
facility, and the Lenders have agreed to do so on the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the mutual covenants and agreements herein
set forth and other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, the parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Defined Terms. As used in this agreement, including the recital and the
schedules, unless there is something in the subject matter or the context
inconsistent therewith, the following terms shall have the following
meanings:
(1) "Accommodation" means:
(a) an Advance by a Lender made on the occasion of a Borrowing pursuant
to an Accommodation Request (whether given or deemed to be given) or
otherwise made or deemed to have been made pursuant hereto;
(b) the creation of Bankers' Acceptances on the occasion of a Drawing
(or the making of a BA Equivalent Loan) pursuant to an Accommodation
Request; and
(c) the issue of a Letter of Credit by the Fronting Lender on behalf of
the Lenders on the occasion of an Issuance pursuant to an
Accommodation Request;
and includes an Advance and a Bankers' Acceptance resulting from a
Rollover or Conversion (whether requested or deemed to have been
requested hereunder) or otherwise effected pursuant hereto. Each type
of Borrowing and each type of Letter of Credit is a "type" of
Accommodation, as are Bankers' Acceptances.
(2) "Accommodation Request" means a notice of request for a Borrowing, a
Drawing and/or an Issuance substantially in the form of schedule 2
annexed hereto, or such other form as the Administration Agent may from
time to time specify.
(3) "Administration Agent" means TD Bank and any successor administration
agent appointed in accordance with Article 11.
(4) "Advance" means an advance of monies (other than and excluding
Discount Proceeds) made or deemed to have been made by a Lender under
the Credit Facility and includes an Advance resulting from a Conversion
or Rollover (whether requested or deemed to have been requested
hereunder) or otherwise effected pursuant hereto, including a Swingline
Advance. An Advance may be denominated in US Dollars (a "US Dollar
Advance") or Cdn. Dollars (a "Canadian Dollar Advance"). A Canadian
Dollar Advance shall be designated a "Prime Rate Advance" and a US
Dollar Advance shall be designated from time to time, as requested or
deemed to have been requested by the relevant Borrower, a "LIBOR
Advance" or a "Base Rate Advance". Each of a Prime Rate Advance, a LIBOR
Advance and a Base Rate Advance is a "type" of Advance.
(5) "affiliate" means, with respect to any person (the "first person"),
any other person which controls (or is a member of a group which
controls), or is under common control with, or is controlled by, the
first person. Notwithstanding the foregoing, neither the Administration
Agent nor any Lender shall be deemed to be an affiliate of a Borrower or
any affiliate thereof solely by reason of its agency function or lending
relationship.
(6) "Agency" means each of DBRS and S&P.
(7) "Applicable Margin" means, with respect to a particular Borrower and
in respect of the following types of Accommodation or the unadvanced
portion of a Commitment, the following corresponding margins and fees
expressed as basis points per annum:
Level Where the Bankers' Prime Rate Commitment
Ratings for Acceptances, LIBOR Advances and Fees:
such Borrower Advances and Base Rate
are: Issuance fees: Advances:
(Intentionally Deleted)
For the purposes of determining the Applicable Margin, the following shall
apply:
(a) Level V shall apply to a Borrower in the absence of at least one
Rating for such Borrower.
(b) If the Ratings in respect of a Borrower provided by the two
Agencies are at two different Levels, the Applicable Margin for such
Borrower shall be calculated at the Level corresponding to the
higher of the Ratings; provided that, if there are one or more
Levels between such Ratings, the Applicable Margin shall be
calculated at the Level that is immediately below the Level
corresponding to the higher of the Ratings.
(c) The Applicable Margin shall be determined from time to time by
the Administration Agent based solely upon deliveries made pursuant
to section 6.1(10) or 8.1(9)(b), whose determination shall be
conclusive and binding for all purposes hereof, absent demonstrated
error. The Administration Agent shall provide notice to the
Borrowers and the Lenders of any change in the Applicable Margin as
so determined by it.
(d) A change in Applicable Margin with respect to a Borrower
necessitated by a change in or absence of a Rating for such Borrower
shall have effect as regards Base Rate Advances, Prime Rate Advances
or LIBOR Advances then outstanding in favour of such Borrower on the
effective day of such change or the first day of such absence (each,
a "change effective day"), shall have effect as regards fees to be
paid by such Borrower as referred to in sections 2.7(a) and 5.6(1)
and (2) on the change effective day, shall have effect as regards
fresh Accommodations obtained by such Borrower on or after the
change effective day and shall not affect the stamping fees for
outstanding Bankers' Acceptances in favour of such Borrower.
(8) "Asset Securitization" means a sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or
dispositions) by or on behalf of a person at the election of such person
involving receivables and/or other assets in the course of an asset
securitization transaction and regardless of the form of asset
securitization.
(9) "Asset Securitization Amount" means, at any time, the balance of the
cash proceeds received from an Asset Securitization.
(10) "Attributable Debt" means, in respect of a Sale and Lease-Back
Transaction, at the time of determination, the Capital Lease Obligations
under the Capital Lease resulting from such Sale and Lease-Back
Transaction as reflected on the consolidated balance sheet of the lessee.
Attributable Debt may be reduced by the present value of the rental
obligations, calculated on the same basis, that any sublessee has for all
or part of the same property.
(11) "BA Equivalent Loan" means, in relation to a Drawing, a loan in
Canadian Dollars made to a Borrower by a Non-Acceptance Lender as part of
the Drawing in accordance with the provisions of section 4.11.
(12) "Bankers' Acceptance" means a depository bill as defined by the
Depository Bills and Notes Act (Canada) or a blank non-interest bearing
bill of exchange as defined by the Bills of Exchange Act (Canada), in
either case drawn by a Borrower, denominated in Canadian Dollars and
accepted by a Lender as a bankers' acceptance, as evidenced by such
Lender's endorsement thereof at the request of such Borrower pursuant to
an Accommodation Request and includes a Bankers' Acceptance resulting
from a Conversion or Rollover.
(13) "Base Rate" means, at any time, the greater of:
(a) the rate of interest per annum established and reported by TD
Bank from time to time as the reference rate of interest it charges
to customers for US Dollar loans made by it in Canada; and
(b) the sum of (i) the Federal Funds Effective Rate multiplied by
365 (or 366 in the case of a leap year) and divided by 360, plus
(ii) 100 basis points per annum;
as to which a certificate of the Administration Agent, absent manifest
error, shall be conclusive evidence from time to time. With each quoted or
published change in such rate aforesaid of TD Bank there shall be a
corresponding change in the rate of interest payable under this agreement,
should such changed rate exceed that set forth in paragraph (b) of this
definition, all without the necessity of any notice thereof to the
Borrowers or any other person.
(14) "basis point" and "b.p." each mean one one-hundredth (1/100) of one per
cent, or .01%.
(15) "Beneficiary" means, in respect of any Letter of Credit, the beneficiary
specified therein.
(16) "Borrower" and "Borrowers" mean, as the context requires, either or both
of TELUS and TCI.
(17) "Borrowing" means a borrowing consisting of one or more Advances. Prime
Rate Advances, LIBOR Advances and Base Rate Advances are each a "type" of
Borrowing.
(18) "Business Day" means:
(a) in respect of LIBOR Advances and payments in connection
therewith, a day (other than Saturday or Sunday) which is a day for
trading by and between banks in US Dollar deposits in the London
Eurodollar interbank market and which is also a day on which banks
are open for business in New York City, Vancouver, Calgary and
Toronto;
(b) in respect of Base Rate Advances, a day (other than Saturday or
Sunday) on which banks are open for business in New York City,
Vancouver, Calgary and Toronto; and
(c) for all other purposes of this agreement, a day (other than
Saturday or Sunday) on which banks are open for business in
Vancouver, Calgary and Toronto.
(19) "C$ Equivalent Debt" means, on any date in respect of any Debt
denominated in US Dollars, the equivalent amount of such Debt expressed
in Cdn. Dollars determined on the basis of the rate of exchange used for
purposes of TELUS' consolidated balance sheet as at the end of the
Financial Quarter ended on or most recently ended prior to such date;
provided that, if TELUS or any subsidiary has entered into a Hedge
Instrument which protects TELUS or such subsidiary against increases in
the value of US Dollars as against Cdn. Dollars in respect of such Debt,
the Cdn. Dollar equivalent of such Debt shall be reduced by any related
deferred hedging asset or increased by any related deferred hedging
liability determined in accordance with GAAP and shown on TELUS'
consolidated balance sheet as at the end of such Financial Quarter.
(20) "C$ Equivalent Principal Outstanding" means, at any time, the amount
equal to:
(a) when used in a context pertaining to Accommodations made by a
single Lender under the Credit Facility, the Principal Outstanding
in favour of such Lender under the Credit Facility; and
(b) when used elsewhere in this agreement with reference to the
Credit Facility, the Principal Outstanding in favour of the Lenders
under the Credit Facility;
in each case calculated and expressed in Cdn. Dollars, with each US
Dollar obligation converted for purposes of such calculation into the
Equivalent Amount in Cdn. Dollars.
(21) "Canadian Dollars", "Cdn. Dollars", "Cdn. $", "C$" and "$" each mean
lawful money of Canada.
(22) "Capital Lease" means a lease of (or other agreement conveying the
right to use) real and/or personal property, which lease is required to
be classified and accounted for as a capital lease on a balance sheet of
the lessee under GAAP (including the Canadian Institute of Chartered
Accountants Handbook Section 3065).
(23) "Capital Lease Obligations" means, as to any person, the obligations
of such person to pay rent or other amounts under a Capital Lease and,
for purposes of this agreement, the amount of such obligations shall be
the capitalized amount thereof, determined in accordance with GAAP
(including the Canadian Institute of Chartered Accountants Handbook
Section 3065).
(24) "Capital Stock" means, with respect to any person, any and all
shares, interests (partnership, joint venture or otherwise),
participations or other equivalents (however designated, whether voting
or non-voting) in the equity of such person, whether now outstanding or
issued after the date hereof.
(25) "Cash Equivalents" means:
(a) marketable, direct obligations of the United States of America,
of Canada or of any political agency or subdivision thereof maturing
within 365 days of the date of purchase;
(b) commercial paper maturing within 180 days from the date of
purchase thereof, and rated (i) in the United States "P-2" or better
by Moody's or "A-2" or better by S&P, or (ii) in Canada "A-1 low" or
better by S&P or "R-1 low" or better by DBRS, or (iii) in any of the
foregoing cases the equivalent thereof by any other recognized
rating agency; and
(c) certificates of deposit maturing within 365 days of the date of
purchase issued by or acceptances accepted or Guaranteed by a bank
to which the Bank Act (Canada) applies having at the time of
acquisition a combined capital, surplus or undistributed profits of
at least C$2 billion.
(26) "CDOR Rate" means, on any day, the annual rate of discount
determined by the Administration Agent which is equal to the simple
average of the yield rates per annum (calculated on the basis of a year
of 365 days and calculated to two decimal places with .005 or more being
rounded upward) applicable to bankers' acceptances denominated in
Canadian Dollars having, where applicable, comparable issue dates and
maturity dates as the Bankers' Acceptances proposed to be issued by the
relevant Borrower displayed and identified as such on the "CDOR Page" (or
any display substituted therefor) of Reuters Monitor Money Rates Service
at approximately 10:00 a.m. (Toronto time) on that day or, if that day is
not a Business Day, then on the immediately preceding Business Day (as
adjusted by the Administration Agent after 10:00 a.m. (Toronto time) to
reflect any error in the posted average annual rate of discount);
provided, however, if those rates do not appear on the CDOR Page (or the
display substituted therefor), then the CDOR Rate shall be the annual
rate of discount determined by the Administration Agent which is equal to
the simple average of the yield rates per annum (calculated on the basis
of a year of 365 days and calculated to two decimal places with .005 or
more being rounded upward) applicable to those bankers' acceptances in a
comparable amount to the Bankers' Acceptances proposed to be issued by
the relevant Borrower, quoted by three of the five largest (as to total
assets) Schedule I Banks (as selected by the Administration Agent) as of
10:00 a.m. (Toronto time) on that day or, if that day is not a Business
Day, on the immediately preceding Business Day. Each determination of the
CDOR Rate by the Administration Agent shall be conclusive and binding,
absent demonstrated error.
(27) "Closing Date" means March 2, 2007 or such other date as shall be
mutually agreed by TELUS and the Lenders.
(28) "Commitment" means, for a Lender, the amount set forth opposite such
Lender's name on schedule 1 annexed hereto to the extent not permanently
reduced, cancelled or terminated pursuant to this agreement.
(29) "Compliance Certificate" means a certificate delivered by TELUS
pursuant to section 8.1(8)(c) substantially in the form of schedule 6
annexed hereto.
(30) "control" of a person (including, with correlative meanings,
"controlled by" and "under common control with") shall mean possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies of such person (whether through ownership of
Capital Stock, by contract or otherwise); provided that, in any event and
without limitation, any person or combination of persons acting jointly
or in concert which owns directly or indirectly more than 50% of the
Capital Stock having ordinary voting power for the election of the
directors of, or persons performing similar functions for, such person
will be deemed to control such person (irrespective of whether at the
time any other Capital Stock of such person of any other class shall or
might have voting power upon the occurrence of any contingency).
(31) "Control Event" means the acquisition by any person or a combination
of persons acting jointly or in concert of more than 50% of the Capital
Stock having ordinary voting power for the election of the directors of
TELUS (other than the creation of a holding company or similar
transaction that does not involve a change in the beneficial ownership of
TELUS as a result of such transaction).
(32) "Conversion" means, in respect of any Drawing or type of Borrowing,
the conversion of the method for calculating interest, discount rates or
fees thereon from one method to another in accordance with section 2.12,
and includes a conversion from a Prime Rate Advance to a Drawing and
vice-versa and a conversion from a LIBOR Advance to a Base Rate Advance
and vice-versa. In addition, the repayment in full by a Borrower of the
Principal Outstanding under an Accommodation in one currency and the
concurrent making of an Accommodation in another currency, whereby the
aggregate C$ Equivalent Principal Outstanding remains the same before and
after such transactions, shall also be considered to be a Conversion for
all purposes of this agreement.
(33) "Coverage Ratio" at any time means the ratio of X to Y for TELUS and
its subsidiaries, with each component calculated on a consolidated basis,
where:
(a) "X" is EBITDA determined for the four consecutive Financial
Quarters ending at such time or immediately prior thereto, as the
case may be, for which TELUS has provided or is required prior to
such time to provide a Compliance Certificate; and
(b) "Y" is the Interest Expense for such four Financial Quarters.
(34) "Credit Facility" means the credit facility to be made available
for the purposes set forth in section 2.1(2), on a revolving basis and
in an aggregate C$ Equivalent Principal Outstanding not to exceed C$2
billion.
(35) "Credit Facility Documents" means this agreement, Bankers'
Acceptances, Letters of Credit, the TCC Guarantee and all other
documents necessary to implement the financing comprised in the Credit
Facility.
(36) "DBRS" means Dominion Bond Rating Service Limited.
(37) "Debt" means, with respect to any person at any time, the sum of
the following (without duplication):
(a) the amount of all indebtedness for borrowed moneys of such
person (including without limitation Purchase Money Obligations);
(b) the amount of all obligations of such person evidenced by notes
payable, drafts accepted representing extensions of credit, bonds,
debentures or other similar instruments, to the extent such
obligations would be considered indebtedness for borrowed moneys in
accordance with GAAP;
(c) all obligations of such person, whether or not contingent, with
respect to or under any bankers' acceptance facility or, except
where the same secures payment of trade payables incurred in the
ordinary course of business, any letter of credit facility or
similar facility, including any liability arising under any
indemnity obligation pertaining thereto;
(d) the amount of the deferred purchase price of property or
services, other than trade payables incurred in the ordinary course
of business;
(e) Capital Lease Obligations of such person;
(f) all other debt upon which interest charges are customarily paid
by such person;
(g) Hedging Obligations of such person, determined on a net basis
having regard to amounts payable by and to such person;
(h) shares in the capital of such person redeemable at the option of
the holder, or which by their terms or otherwise are required to be
redeemed, at the time of determination of Debt;
(i) all indebtedness of other persons secured by a Lien on any asset
of such person, whether or not such indebtedness is assumed by such
person; provided that the amount of such indebtedness shall be the
lesser of (i) the fair market value of such asset at such date of
determination, and (ii) the amount of such indebtedness; and
(j) any Guarantee by such person in any manner of any part or all of
an obligation included in clauses (a) to (i) above.
The amount of Debt of any person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above
and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation;
provided that (i) the amount at any time of indebtedness issued with
original issue discount shall be the accreted amount thereof determined
in accordance with GAAP, and (ii) Debt shall not include any liability
for unpaid Taxes not yet due. The amount of Debt at any date shall be
determined in Cdn. Dollars including the C$ Equivalent Debt of any Debt
denominated in US Dollars at such date.
(38) "Default" means an event which, with the giving of notice or
passage of time, or both, would constitute an Event of Default.
(39) "Discount Proceeds" means, in respect of Bankers' Acceptances to be
purchased by a Lender, the result (rounded to the nearest whole cent,
with one-half of one cent and more being rounded up) obtained by
multiplying the aggregate Face Amount of such Bankers' Acceptances by a
price (rounded up or down to the second decimal place, with .005 or more
being rounded up) determined by dividing one by the sum of one plus the
product of (x) the applicable Discount Rate multiplied by (y) a
fraction, the numerator of which is the number of days in the term to
maturity of such Bankers' Acceptances and the denominator of which is
365.
(40) "Discount Rate" means:
(a) with respect to an issue of Bankers' Acceptances accepted by a
Lender that is a Schedule I Bank, the CDOR Rate; and
(b) with respect to an issue of Bankers' Acceptances accepted by a
Lender that is not a Schedule I Bank, the lesser of:
(i) the CDOR Rate plus seven basis points; and
(ii) either:
(A) in the case of acceptance by a Lender that is a Schedule
II Bank, the annual rate, expressed as a percentage,
determined by the Administration Agent as the average
discount rate for bankers' acceptances having a comparable
face value in Cdn. Dollars and a comparable issue and
maturity date to the face value and issue and maturity date
of that issue of Bankers' Acceptances calculated on the
basis of a year of 365 days accepted by the Reference
Lenders at or about 10:00 a.m. (Toronto time) on the date of
issue of those Bankers' Acceptances; or
(B) in the case of acceptance by a Lender that is a Schedule
III Bank, the annual rate, expressed as a percentage,
determined by the Administration Agent as the discount rate
for bankers' acceptances having a comparable face value in
Cdn. Dollars and a comparable issue and maturity date to the
face value and issue and maturity date of that issue of
Bankers' Acceptances calculated on the basis of a year of
365 days accepted by such Lender at or about 10:00 a.m.
(Toronto time) on the date of issue of those Bankers'
Acceptances.
(41) "Drawing" means the creation or making of one or more Bankers'
Acceptances in pursuance of an Accommodation Request.
(42) "Drawing Date" means any Business Day fixed in accordance with the
provisions of this agreement for a Drawing.
(43) "EBITDA" for any person for any period means the net income of such
person for such period, excluding in the calculation of net income all
extraordinary and all other non-recurring items (such exclusion to
include restructuring and workforce reduction costs), foreign exchange
losses or gains, and losses or gains on the repurchase or redemption of
any securities, plus, to the extent deducted in calculating such net
income, Interest Expense, depreciation, amortization (including
amortization of goodwill) and income taxes (whether or not deferred).
(44) "Environmental Laws" means all applicable Laws, Permits and
guidelines or requirements of any Official Body (whether or not having
the force of Law, and including consent decrees as to which a Borrower
or a Material Subsidiary is a party or otherwise subject, and
administrative orders which may affect a Borrower or a Material
Subsidiary) relating to public health and safety, protection of the
environment, the Release of Hazardous Materials and occupational health
and safety.
(45) "Equivalent Amount" means, on a particular date in respect of any
amount (the "original amount") expressed in a particular currency (the
"original currency"), the equivalent amount expressed in a second
designated currency (the "second currency") determined by reference to
the Bank of Canada noon rate at which the original currency may be
exchanged into the second currency as published on the Reuters Screen
page BOFC. In the event that such rate does not appear on such Reuters
page, such rate shall be ascertained by reference to any other means (as
selected by the Administration Agent) by which such rate is quoted or
published from time to time by the Bank of Canada; provided that, if at
the time of any such determination, for any reason, no such exchange
rate is being quoted or published, the Administration Agent may use such
reasonable method as it considers appropriate to ascertain such rate,
and the resulting determination shall be conclusive absent manifest
error.
(46) "Event of Default" means any of the events specified in section
10.1.
(47) "Excluded Debt" means any of the following:
(a) Intercompany Debt owed by a Borrower to a Material Subsidiary,
or vice versa, or owed by a Material Subsidiary to another Material
Subsidiary;
(b) Debt comprised in commercial paper; provided that such Debt
enjoys the benefit of backstop credit facilities held by a Borrower
having an available undrawn principal amount at all times equal to
or greater than the outstanding principal of such Debt;
(c) the Quebec Tel Mortgage Bonds;
(d) any Debt constituted by a Guarantee by TCC of any obligations
of TCI; and
(e) Debt comprised in an Accommodation made to TCI if the proceeds
thereof were used to repay commercial paper.
(48) "Excluded Taxes" shall mean, in relation to any Lender, those Taxes
which are imposed or levied by any jurisdiction or any political
subdivision thereof:
(a) on or measured by the overall net income of such Lender or its
applicable Lending Branch or any affiliate thereof, and all
franchise taxes, branch taxes, taxes on doing business or taxes
measured by capital or net worth imposed on any Lender or its
applicable Lending Branch or any affiliate thereof, as a result of
such Lender (i) carrying on a trade or business therein or having a
permanent establishment therein, (ii) being organized under the
laws of such jurisdiction or any political subdivision thereof, or
(iii) being or being deemed to be resident or domiciled in such
jurisdiction for income tax purposes;
(b) by reason of such Lender not dealing at arm's length (as such
term is interpreted for purposes of the Income Tax Act (Canada))
with the Borrowers; or
(c) which would not have been imposed had such Lender satisfied a
relevant authority that such Lender was not a person mentioned in
clause (a) or (b) above.
(49) "Face Amount" means, in respect of a Bankers' Acceptance, the
amount payable to the holder thereof on its maturity and, in respect of
a Letter of Credit, the maximum amount that may from time to time be
payable to the Beneficiary thereof, and where used in a context
referring to more than one Bankers' Acceptance and/or Letter of Credit
means the aggregate of the Face Amounts thereof.
(50) "Federal Funds Effective Rate" means, for any day, an interest rate
per annum expressed on the basis of a 360 day year equal to the weighted
average (rounded upwards if necessary to the next 0.01%) of the rates on
overnight federal funds transactions with members of the United States
Federal Reserve System arranged by federal funds brokers on such day, as
published for such day (or, if such day is not a Business Day, for the
immediately preceding Business Day) by the Federal Reserve Bank of New
York or, if such rate is not so published for any day which is a
Business Day, the average (rounded upwards if necessary to the next
0.01%) of the quotations at approximately 11:00 a.m. (New York time) for
such day for such transactions received by the Administration Agent from
three federal funds brokers of recognized standing selected by the
Administration Agent in its sole discretion.
(51) "Financial Quarter" means a period of three consecutive months
ending on and including March 31, June 30, September 30 or December 31,
as the case may be.
(52) "Financial Year" means a financial year commencing on January 1 of
each calendar year and ending on and including December 31 of such year.
(53) "Fronting Lender" means TD Bank in its capacity as the issuer of
Letters of Credit as contemplated by Article 5.
(54) "Funded Debt" of any person at any time means the Debt of such
person at such time, less:
(a) item (g) thereunder;
(b) that portion of the face amount of any letter of credit that
would otherwise be included in item (c) thereunder but has not yet
been drawn at such time; and
(c) the sum of (i) the amount of such person's cash on hand at such
time subject to no Lien other than any right of refund, set-off or
charge-back available to any bank or other financial institution,
and (ii) the market value of all Cash Equivalents held by such
person at such time; provided that, during any time that the
Applicable Margin is determined at Level V of the definition
thereof, the amount determined under this item (c) shall be deemed
to be zero.
(55) "GAAP" means, in relation to any person at any time, accounting
principles generally accepted in Canada as recommended in the Handbook
of the Canadian Institute of Chartered Accountants or its successor,
applied on a basis consistent with the most recent audited financial
statements of such person and, if applicable, its consolidated
subsidiaries (except for changes approved by the auditors of such
person; provided that the calculation of the Leverage Ratio or the
Coverage Ratio, including the constituent elements thereof, shall be
made without regard to any change in GAAP, or TELUS' adoption of any
change in GAAP, after December 31, 2006).
(56) "Guarantee" means, with respect to any person, any obligation of
such person directly or indirectly guaranteeing any indebtedness or
other obligation of any other person and, without limiting the
generality of the foregoing, includes any obligation, direct or
indirect, contingent or otherwise, of such person (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such
indebtedness or other obligation of such other person (whether arising
by virtue of partnership, joint venture or similar arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or
services, or to maintain financial condition or otherwise), or (ii)
entered into for purposes of assuring in any manner the obligee of such
indebtedness or other obligation of the payment or performance (or
payment of damages in the event of non-performance) thereof or to
protect such obligee against loss in respect thereof (in whole or in
part); provided that the foregoing shall exclude endorsement of
negotiable instruments for collection or deposit in the ordinary course
of business.
(57) "Hazardous Materials" means:
(a) any oil, flammable substances, explosives, radioactive
materials, hazardous wastes or substances, toxic wastes or
substances or any other wastes, contaminates, materials or
pollutants which:
(i) pose a hazard to any real property, or to persons on or about
any real property; or
(ii) cause any real property to be in violation of any Law;
(b) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which
contain dielectric fluid containing levels of polychlorinated
biphenyls in excess of limits prescribed by Law, or radon gas;
(c) any chemical, material or substance defined as or included in
the definition of "dangerous goods", "deleterious substance",
"hazardous substances", "hazardous wastes", "hazardous materials",
"extremely hazardous wastes", "restricted hazardous waste", or
"toxic substances", "waste" or words of similar import under any
Law, including the Canadian Environmental Protection Act (Canada),
Fisheries Act (Canada), Transportation of Dangerous Goods Act
(Canada), Canada Water Act (Canada) and any applicable provincial
legislation; and
(d) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any Official Body or which may
or could pose a hazard to the occupants of any real property or the
owners or occupants of property adjacent to or surrounding any real
property, or any other person coming upon any real property or
adjacent or surrounding property.
(58) "Hedge Instrument" means any interest rate or foreign exchange risk
management agreement or product, including interest rate or currency
exchange or swap agreements, futures contracts, forward rate agreements,
interest rate cap agreements and interest rate collar agreements,
options and all other agreements or arrangements designed to protect
such person against fluctuations in interest rates or currency exchange
rates.
(59) "Hedging Obligations" means, with respect to any person, payment or
delivery obligations under Hedge Instruments.
(60) "Increased Costs" means any amounts payable by a Borrower to the
Administration Agent or a Lender under any of sections 3.2(3), 5.8 and
8.1(10), Article 9 and section 12.4.
(61) "Indebtedness for Borrowed Moneys" means Debt of the nature
contemplated by paragraphs (a), (b), (c) (as to bankers' acceptances),
(d), (e) and (j) (to the extent the underlying Debt which is the subject
of such Guarantee is of the nature contemplated by the foregoing) of the
definition of Debt.
(62) "Intercompany Debt" means any Debt of a subsidiary of TELUS to
TELUS, and vice-versa, or to another subsidiary of TELUS.
(63) "Interest Expense" for any person for any period means, without
duplication, the aggregate amount of interest and financing charges in
respect of Debt (including amortization of original issue discount on
any Debt, but excluding for greater certainty underwriting and
arrangement fees), mandatory dividend payments on shares comprising Debt
(unless such dividends are cumulative or, if unpaid, are not required to
be paid in the future), and that component of rentals in respect of
Capital Lease Obligations which is treated as interest expense or
financing charge under GAAP, paid, accrued and/or scheduled to be paid,
as the case may be, by such person during such period, net of interest
earned by such person during such period.
(64) "Interest Period" means, for each LIBOR Advance, a period
commencing:
(a) in the case of the initial Interest Period for such Advance, on
the date of such Advance; and
(b) in the case of any subsequent Interest Period for such Advance
in accordance with a Rollover, on the last day of the immediately
preceding Interest Period;
and ending in either case on the last day of such period as shall be
selected by the relevant Borrower pursuant to the provisions below.
If a Base Rate Advance is converted to a LIBOR Advance, the initial
Interest Period for such LIBOR Advance shall commence on the date of
such Conversion. The duration of each Interest Period for a LIBOR
Advance shall be one, two, three or six months (subject to
availability), as the relevant Borrower may select in the applicable
Accommodation Request, or such other period to which the Lenders may
agree. No Interest Period may be selected which would end on a day after
the Maturity Date or, in the opinion of the Administration Agent,
conflict with any repayment stipulated herein. Whenever the last day of
an Interest Period would otherwise occur on a day other than a Business
Day, the last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day.
(65) "ISP98" means the International Standby Practices ISP98, as
published by the International Chamber of Commerce and in effect from
time to time.
(66) "Issuance" means the issuance of one or more Letters of Credit made
pursuant to an Accommodation Request.
(67) "Issue Date" means any Business Day fixed in accordance with the
provisions of this agreement for an Issuance.
(68) "Law" means any law (including common law and the laws of equity),
constitution, statute, treaty, regulation, by-law, rule, ordinance,
order, injunction, writ, decree or award of any Official Body.
(69) "Lenders" means those financial institutions whose names are set
forth on the execution pages hereof under the heading "Lenders", and
their respective successors and assigns.
(70) "Lenders' Counsel" means Stikeman Elliott LLP or such other law
firm or firms as may from time to time be chosen by the Lenders to act
on their behalf in connection with the Credit Facility.
(71) "Lending Branch" means, in respect of a particular Lender, the
branch whose address is set forth in schedule 1 annexed hereto, or such
other branch as such Lender may designate from time to time by notice
given to the Administration Agent and TELUS.
(72) "Letter of Credit" means a standby or commercial letter of credit
or a letter of guarantee for a specified amount in Canadian Dollars
issued by the Fronting Lender on behalf of the Lenders at the request
and upon the indemnity of a Borrower pursuant to Article 5 and (subject
to section 5.3(b)) having a term to maturity from the date of issuance
thereof of no more than 365 days.
(73) "Leverage Ratio" at any time means the ratio of X to Y for TELUS
and its subsidiaries, with each component calculated on a consolidated
basis, where:
(a) "X" is the sum of Funded Debt and Asset Securitization Amounts
at that time; and
(b) "Y" is EBITDA determined for the four consecutive Financial
Quarters ending at such time or immediately prior thereto, as the
case may be, for which TELUS has provided or is required prior to
such time to provide a Compliance Certificate.
(74) "LIBOR", with respect to any Interest Period, means:
(a) the rate of interest (expressed as an annual rate on the basis
of a 360 day year) determined by the Administration Agent to be the
arithmetic mean (rounded up to the nearest 0.01%) of the offered
rates for deposits in US Dollars for a period equal to the
particular Interest Period, which rates appear on (A) the Reuters
screen LIBO page, or (B) if such Reuters screen page is not readily
available to the Administration Agent, Page 3750 of the Telerate
screen, in either case as of 11:00 a.m. (London time) on the second
London Business Day before the first day of that Interest Period;
(b) if neither such Reuters screen page nor Telerate screen page is
readily available to the Administration Agent for any reason, the
rate of interest determined by the Administration Agent which is
equal to the simple average of the rates of interest (expressed as
a rate per annum on the basis of a year of 360 days and rounded up
to the nearest 0.01%) at which three of the five largest (as to
total assets) Schedule I Banks (as selected by the Administration
Agent) would be prepared to offer leading banks in the London
interbank market a deposit in US Dollars for a term coextensive
with that Interest Period in an amount substantially equal to the
relevant LIBOR Advance at or about 10:00 a.m. (Toronto time) on the
second London Business Day before the first day of such Interest
Period;
where "London Business Day" means a day (other than Saturday or Sunday)
which is a day for trading by and between banks in US Dollar deposits in
the London Eurodollar interbank market.
(75) "Lien" means any mortgage, pledge, lien, hypothecation, security
interest or other encumbrance or charge (whether fixed, floating or
otherwise) or title retention, and any deposit of moneys under any
agreement or arrangement whereby such moneys may be withdrawn only upon
fulfilment of any condition as to the discharge of any other
indebtedness or other obligation to any creditor, or any right of or
arrangement of any kind with any creditor to have its claims satisfied
prior to other creditors with or from the proceeds of any properties,
assets or revenues of any kind now owned or later acquired.
(76) "Majority Lenders" means Lenders whose respective individual
Commitments aggregate at least 50.1% of the total Commitments of all
Lenders at such time; provided that, for purposes of declaring the
Obligations to be due and payable pursuant to section 10.2, and for all
purposes after the Obligations become due and payable pursuant to
section 10.2 or the Commitments expire or terminate, "Majority Lenders"
shall mean Lenders whose respective Principal Outstanding aggregate at
least 50.1% of the total Principal Outstanding of all Lenders at such
time.
(77) "Material Adverse Effect" means:
(a) any material adverse change in the assets, properties,
operations or condition, financial or otherwise, of the Borrowers
and the Material Subsidiaries taken as a whole; or
(b) any material impairment or reduction in the ability (financial
or otherwise) of a Borrower to fulfil any covenant or obligation to
the Administration Agent or the Lenders.
(78) "Material Subsidiary" means, at any time, any subsidiary whose
total assets, consolidated in the case of a Material Subsidiary which
itself has subsidiaries, represent not less than 10% of the consolidated
total assets of TELUS, such consolidated total assets to be calculated
by reference to its most recently completed Financial Quarter, and any
other subsidiary designated as a Material Subsidiary by TELUS from time
to time.
(79) "Maturity Date" means May 1, 2012.
(80) "Moody's" means Moody's Investors Service, Inc.
(81) "Net Tangible Assets" means, at any time, the consolidated assets
of TELUS determined at such time in accordance with GAAP, less
intangible assets (other than intangible assets, including spectrum
licenses, with indefinite lives).
(82) "Non-Acceptance Discount Rate" means, for any day, the Discount
Rate that is the lesser of the rates described in paragraph (b)(i) and
(b)(ii)(A) of the definition of Discount Rate; provided that, if at any
relevant time there are no Reference Lenders, the Non-Acceptance
Discount Rate will be the Discount Rate in paragraph (b)(i) of that
definition.
(83) "Non-Acceptance Lender" has the meaning set forth in section 4.11.
(84) "Notice" means, as the context requires, an Accommodation Request
or a Repayment/Cancellation Notice.
(85) "Obligations" means at any time the amount equal to the sum of:
(a) the Principal Outstanding under the Credit Facility;
(b) all accrued and unpaid interest thereon and all interest on
accrued and unpaid interest; and
(c) all accrued and unpaid fees, expenses, costs, indemnities,
Increased Costs and other amounts payable to the Lenders or the
Administration Agent pursuant to the provisions of any Credit
Facility Document or otherwise in respect of the Credit Facility.
(86) "Official Body" means any government (including any federal,
provincial, state, territorial, municipal or local government) or
political subdivision or supranational body, any agency, authority,
bureau, regulatory or administrative authority, central bank, monetary
authority, commission, department or instrumentality thereof, or any
court, tribunal, judicial entity, or arbitrator, whether foreign or
domestic.
(87) "Participant" shall have the meaning ascribed thereto in section
12.7(3).
(88) "Payment Account" means, for TELUS:
(a) for US Dollars: (Intentionally Deleted)
(b) for Cdn. Dollars: (Intentionally Deleted)
or such other places or accounts as may be agreed by the Administration
Agent and TELUS from time to time and notified to the Lenders, and for
TCI means such accounts as may be agreed by the Administration Agent and
TCI from time to time and notified to the Lenders.
(89) "Permit" means any permit, licence, approval, consent, order,
right, certificate, judgment, writ, injunction, award, determination,
direction, decree, authorization, franchise, privilege, grant, waiver,
exemption and other similar concession or by-law, rule or regulation
(whether or not having the force of Law) of, by or from any Official
Body.
(90) "Permitted Liens" means, in respect of any person at any time, any
one or more of the following:
(a) Liens for Taxes, assessments or government charges or levies
not at the time due and delinquent or the validity of which is
being contested at the time by such person in good faith by proper
legal proceedings, and which contested Liens have not had and would
not reasonably be expected to have a Material Adverse Effect;
(b) the Lien of any judgment rendered or claim filed against such
person which such person shall be contesting in good faith by
proper legal proceedings, and which Lien has not had and would not
reasonably be expected to have a Material Adverse Effect;
(c) Liens or privileges imposed by Law such as carriers,
warehousemen's, mechanics and materialmen's Liens and privileges
arising in the ordinary course of business not at the time due or
delinquent or which are being contested at the time by such person
in good faith by proper legal proceedings, and which contested
Liens or privileges have not had and would not reasonably be
expected to have a Material Adverse Effect;
(d) undetermined or inchoate Liens incidental to current operations
which have not at such time been filed;
(e) restrictions, easements, rights-of-way, servitudes or other
similar rights in land or immovable property (including rights of
way and servitudes for railways, sewers, drains, gas and oil
pipelines, gas and water mains, electric light and power and
telephone or telegraph or cable television conduits, poles, wires
and cables) granted to or reserved by other persons; provided that,
in the case of a property having a value in excess of C$10 million,
such restrictions, easements, rights-of-way, servitudes or other
similar rights in the aggregate will not materially impair the
usefulness, in the operation of the business of such person, of
such property;
(f) the right reserved to or vested in any Official Body, by the
terms of any Permit acquired by such person or by any Law, to
terminate any such Permit or to require annual or other payments as
a condition to the continuance thereof;
(g) the encumbrance resulting from the deposit of cash or
securities in connection with any of the Liens referred to in
paragraph (a), (b) or (c) of this definition pending a final
determination as to the existence or amount of any obligation
referred to therein, or in connection with contracts, tenders,
leases or expropriation proceedings, or to secure worker's
compensation, obligations under employee pension or retirement
plans or other benefit plans, surety or appeal bonds, costs of
litigation when required by Law and public and statutory
obligations, and any right of refund, set-off or charge-back
available to any bank or other financial institution;
(h) security given to a public utility or any other Official Body
when required by such utility or other Official Body in connection
with the operations of such person in the ordinary course of its
business;
(i) the reservations, limitations, provisos and conditions, if any,
expressed in any grants from the Crown or any similar authority;
(j) title defects or irregularities which are of a minor nature;
provided that, in the case of a property having a value in excess
of C$10 million, such title defects or irregularities in the
aggregate will not materially impair the use of the property for
the purposes for which it is held by such person;
(k) Liens securing Capital Lease Obligations and Purchase Money
Obligations not in the aggregate in excess of 5% of the
consolidated gross revenues of TELUS and its subsidiaries for the
four consecutive Financial Quarters then most-recently ended;
(l) the Liens contemplated hereby in favour of the Administration
Agent over any cash collateral account;
(m) Liens securing Debt or other obligations of a Borrower or
Material Subsidiary owing to, as the case may be, a Borrower or
Material Subsidiary;
(n) the Lien of the Quebec Tel Mortgage Bonds;
(o) Liens on property or shares of a person at the time that such
person becomes a Material Subsidiary; provided, however, that the
Lien may not extend to any other property or assets owned by any
Material Subsidiary; provided, further, that such Liens are not
created, incurred or assumed in connection with, or in
contemplation of, or to provide credit support in connection with,
such person becoming a Material Subsidiary;
(p) Liens on property or assets at the time a Borrower or Material
Subsidiary acquires the property or assets, including any
acquisition by means of an amalgamation, merger or consolidation
with or into a Borrower or Material Subsidiary; provided, however,
that the Lien may not extend to any other property or assets owned
by a Borrower or Material Subsidiary; provided, further, that such
Liens are not created, incurred or assumed in connection with, or
in contemplation of, or to provide credit support in connection
with, such acquisition;
(q) Liens to secure any refinancing, extension, renewal or
replacement as a whole, or in part, of any Debt secured by any Lien
referred to in the foregoing paragraph (n), (o) or (p);
(r) any Lien that extends only to a non-material asset, securing
(in the aggregate with all other Liens outstanding under this
paragraph (r)) an amount less than C$10 million (or the Equivalent
Amount in other currencies), where such Lien has inadvertently been
granted or incurred and has not remained outstanding more than 20
days after the Administration Agent has requested that same be
released;
(s) other Liens not otherwise covered by this definition, where the
sum of (i) with respect to Liens which secure Debt or Attributable
Debt, the aggregate of such Debt or Attributable Debt, and (ii)
with respect to other Liens, the book value of the property
affected thereby, does not exceed 5% of Net Tangible Assets as at
the latest time any such Lien is created;
(t) Liens on property of a Borrower or Material Subsidiary securing
indebtedness or other obligations issued by Canada or the United
States of America or any state or department, agency or
instrumentality or political subdivision of Canada or the United
States of America or any state, or by any other country or any
political subdivision of any other country, for the purpose of
financing all or any part of the purchase price of, or, in the case
of real property, the cost of construction on or improvement of,
any property or assets subject to the Liens, including Liens
incurred in connection with pollution control, industrial revenue
or similar financings;
(u) leases or subleases entered into by a Borrower or a Material
Subsidiary or by which a Borrower or a Material Subsidiary is bound
that do not materially interfere with the ordinary course of
business of TELUS and its subsidiaries, taken as a whole;
(v) Liens encumbering property under construction arising from
progress or partial payments made by a customer of TELUS or its
subsidiaries relating to such property;
(w) any interest or title of a lessor in the property subject to
any lease; and
(x) Liens in favour of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection
with the importation of goods.
(91) "Permitted Mergers" means a transaction otherwise prohibited by
section 8.2(2) where the following conditions are satisfied:
(a) in the case of any such transaction involving a Borrower, the
resulting, surviving or transferee person shall be a person that is
not a non-resident of Canada for purposes of the Income Tax Act
(Canada) and is organized and existing under the laws of Canada or
any province thereof, and such person shall expressly assume on
terms and conditions as to legal effect satisfactory to the
Lenders' Counsel the obligations of such Borrower under all Credit
Facility Documents;
(b) in the case of any such transaction involving a Borrower or any
Material Subsidiary:
(i) no Default or Event of Default has occurred and is
continuing and immediately after giving effect to such
transaction on a pro forma basis no Default or Event of Default
shall have occurred and be continuing;
(ii) no such transaction shall affect the validity or
enforceability of any Credit Facility Document; and
(iii) TELUS shall deliver to the Administration Agent promptly
following such transaction a certificate of a Senior Officer
and an opinion of counsel to the Borrowers, each stating that
such transaction complies herewith and each being otherwise in
form and substance reasonably acceptable to the Administration
Agent;
provided that the certificate and opinion referred to in (iii) shall
not be required in the case of a transaction:
(iv) involving (A) only a Borrower and Material Subsidiaries,
or (B) only Material Subsidiaries; or
(v) comprising the amalgamation or merger of a Borrower or a
Material Subsidiary with a person that is directly or
indirectly a wholly-owned subsidiary of TELUS.
(92) "person" includes an individual, partnership, body corporate,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture and other entity and any
Official Body.
(93) "Portion" means, in respect of the Credit Facility on any date, the
TELUS Portion or the TCI Portion (as the case may be) on such date.
(94) "Prime Rate" means, at any time, the greater of:
(a) the rate of interest per annum established and reported by TD
Bank from time to time as the reference rate of interest it charges
to customers for Canadian Dollar loans made by it in Canada; and
(b) the sum of:
(i) the average one month bankers' acceptance rate as quoted on
Reuters Service page CDOR as at 10:00 a.m. (Toronto time) on
such day, expressed as a rate per annum; plus
(ii) 100 basis points;
as to which a certificate of the Administration Agent, absent manifest
error, shall be conclusive evidence from time to time. With each quoted
or published change in such rate aforesaid of TD Bank there shall be a
corresponding change in any rate of interest payable under this
agreement based on the Prime Rate should such changed rate exceed that
set forth in paragraph (b) of this definition, all without the necessity
of any notice thereof to the Borrowers or any other person.
(95) "Principal Outstanding" means, at any time, the amount equal to:
(a) when used in a context pertaining to Accommodations made by a
single Lender, the sum of:
(i) the aggregate principal amount of all Advances and BA
Equivalent Loans then outstanding made by such Lender; and
(ii) the Face Amount of all Accommodations then outstanding
made by such Lender by way of Bankers' Acceptances (whether or
not held by such Lender) and Letters of Credit (including such
Lender's pro rata interest in Letters of Credit issued by the
Fronting Lender); and
(b) when used elsewhere in this agreement, the sum of:
(i) the aggregate principal amount of all Advances and BA
Equivalent Loans then outstanding made by the Lenders; and
(ii) the Face Amount of all Accommodations then outstanding
made by the Lenders by way of Bankers' Acceptances (whether or
not held by the respective Lenders) and Letters of Credit.
(96) "Principal Property" means at any time assets, revenues or any
other property or property right or interest (whether tangible or
intangible, real or personal, including any right to receive income)
which has a fair market value or a book value in excess of US$5 million
(or its equivalent in any other currency or currencies).
(97) "Purchase Money Obligation" means indebtedness under any purchase
money mortgage, pledge or other purchase money Lien entered into in the
ordinary course of business and secured upon property acquired by a
person.
(98) "Quebec Tel" means TELUS Communications (Quebec) Inc.
(99) "Quebec Tel Mortgage Bonds" means the 11.50% First Mortgage Bonds,
Series "U", issued by Quebec Tel pursuant to the trust deed of hypothec,
mortgage, pledge and charge dated August 13, 1947 made by Quebec
Telephone Corporation in favour of The Sun Trust Limited (since replaced
by Computershare Trust Company of Canada), as supplemented by, inter
alia, supplemental trust deeds bearing formal date of July 1, 1990, July
1, 2004, March 1, 2006 and April 25, 2006.
(100) "Rating" means a rating assigned to the public senior unsecured
debt of a Borrower by an Agency.
(101) "receiver" includes a receiver, receiver/manager and receiver and
manager.
(102) "Reference Lenders" means any two Lenders as selected by the
Administration Agent from time to time and that are acceptable to TELUS
which are banks under Schedule II of the Bank Act (Canada).
(103) "Release" includes releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping, or permitting any of the foregoing to occur.
(104) "Repayment/Cancellation Notice" means a notice in the form of or
to substantially similar effect as schedule 3 annexed hereto, given to
the Administration Agent by the relevant Borrower pursuant to any
relevant provision of this agreement.
(105) "Required Notice", when used with respect to a type of
Accommodation, a payment, prepayment or reduction of the Commitments
hereunder, means such number of days' notice to the Administration Agent
as is set forth in schedule 7 annexed hereto.
(106) "Rollover" means, in respect of a Borrowing by way of LIBOR
Advances, the continuation thereof or any portion thereof for a
succeeding Interest Period and, in respect of a Drawing, the issuance of
a further Drawing on any day in a Face Amount not exceeding the Face
Amount of the Drawing maturing on that day, the proceeds of which are
used to pay (directly or indirectly) the maturing Drawing, all as
contemplated by section 2.12.
(107) "S&P" means Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
(108) "Sale and Lease-Back Transaction" means any transaction or series
of related transactions pursuant to which a Borrower or Material
Subsidiary sells or transfers any Principal Property of such Borrower or
Material Subsidiary to any person and leases back such Principal
Property by way of a Capital Lease Obligation, but does not include (a)
any Sale and Lease-Back Transaction between a Borrower and either the
other Borrower or a Material Subsidiary, or between Material
Subsidiaries, or (b) any Sale and Lease-Back Transaction where the term
of the lease back is less than three years.
(109) "Schedule I Bank", "Schedule II Bank" or "Schedule III Bank" mean
a bank under (as the case may be) Schedule I or II of the Bank Act
(Canada) or an authorized foreign bank under Schedule III of the Bank
Act (Canada); provided that, for the purposes of the definition of
Discount Rate, Alberta Treasury Branch shall be considered to be a
Schedule I Bank.
(110) "Senior Officer" means, in respect of a corporation, the chair of
the board, the president or chief executive officer, the chief financial
officer, the chief legal officer, a vice-president, the secretary, the
treasurer or such other officer as the Administration Agent may agree
to.
(111) "subsidiary" means, at any time with respect to a person, any
other person, if at such time such first-mentioned person owns, directly
or indirectly, more than 50% of the Capital Stock in such other person
entitled ordinarily to vote in the election of the board of directors
of, or persons performing similar functions for, such other person.
(112) "Swingline" means that portion of the Credit Facility to be made
available by the Swingline Lender to TELUS as described in section
2.1(6), and "Swingline Advance" has the meaning set forth in said
section 2.1(6).
(113) "Swingline Amount" means C$50 million (or the Equivalent Amount in
US Dollars) to the extent not permanently reduced, cancelled or
terminated pursuant to this agreement.
(114) "Swingline Lender" means TD Bank acting in its capacity as the
Lender of Swingline Advances under section 2.1(6).
(115) "Taking" means the expropriation, condemnation or taking by
eminent domain or similar authority, or by any proceeding or purchase in
lieu or anticipation thereof, of any property or asset or any right,
title or interest therein by any Official Body.
(116) "Taxes" means all taxes, levies, imposts, stamp taxes, duties,
fees, deductions, withholdings, charges, compulsory loans or
restrictions or conditions resulting in a charge which are imposed,
levied, collected, withheld or assessed by any country or political
subdivision or taxing authority thereof as of the date hereof or at any
time in the future together with interest thereon and penalties with
respect thereto, if any, and any payments of principal, interest,
charges, fees or other amounts made on or in respect thereof (but
excluding Excluded Taxes), and "Tax" and "Taxation" shall be construed
accordingly.
(117) "TCC" means TELUS Communications Company, a general partnership
formed under the laws of the Province of British Columbia.
(118) "TCC Guarantee" means a guarantee by TCC of the obligations of TCI
under this agreement, substantially in the form of the guarantee dated
March 1, 2006 executed by TCC in respect of the obligations of TCI under
the 2005 Credit Agreement.
(119) "TCI" means TELUS Communications Inc.
(120) "TCI Portion" has the meaning set forth in section 2.3.
(121) "TD Bank" means The Toronto-Dominion Bank, a Canadian chartered
bank.
(122) "TELUS" means TELUS Corporation (B.C. Inc. No. 0573792).
(123) "TELUS Portion" means (i) prior to the replacement of TELUS by TCI
in respect of the TCI Portion pursuant to section 2.3, the full amount
of the Credit Facility, and (ii) thereafter, the full amount of the
Credit Facility less the TCI Portion.
(124) "this agreement", "herein", "hereof", "hereto" and "hereunder" and
similar expressions mean and refer to this agreement as supplemented or
amended and not to any particular Article, section, paragraph, schedule
or other portion hereof; and the expressions "Article", "section",
"paragraph" and "schedule" followed by a number or letter mean and refer
to the specified Article, section, paragraph or schedule of this
agreement.
(125) "2005 Credit Agreement" means the credit agreement dated May 4,
2005 between TELUS and TCI as borrowers, The Toronto-Dominion Bank as
administration agent and the Lenders (as therein defined).
(126) "US Dollars", "United States Dollars" and "US$" each mean lawful
money of the United States of America in same day immediately available
funds or, if such funds are not available, the form of money of the
United States of America that is customarily used in the settlement of
international banking transactions on the day payment is due hereunder.
(127) "Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits, as published by the International Chamber of
Commerce and in effect from time to time.
1.2 Computation of Time Periods.
(1) Inclusion Rules. 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".
(2) Ibid. Where in this agreement a notice must be given a number of
days prior to a specified action, the day on which such notice is
given shall be included and the day of the specified action shall be
excluded.
1.3 Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP.
1.4 Incorporation of Schedules. Schedules 1 to 8 annexed hereto shall, for
all purposes hereof, form an integral part of this agreement.
1.5 Gender; Singular, Plural, etc. As used herein, each gender shall include
all genders, and the singular shall include the plural and the plural the
singular, as the context shall require.
1.6 Use of Certain Words. The words "including" and "includes", when either
follows any general term or statement, is not to be construed as limiting
the general term or statement to the specific terms or matters set forth
immediately following such word or to similar items or matters, but rather
as referring to all other items or matters that could reasonably fall
within the broadest possible scope of the general term or statement.
1.7 Successors, etc. In this agreement:
(a) reference to any body corporate shall include successors
thereto, whether by way of amalgamation or otherwise, and in the
case of the Borrowers and the Material Subsidiaries includes any
such successor pursuant to a Permitted Merger;
(b) references to any statute, enactment or legislation or to any
section or provision thereof include a reference to any order,
ordinance, regulation, rule or by-law or proclamation made under or
pursuant to that statute, enactment or legislation and all
amendments, modifications, consolidations, re-enactments or
replacements thereof or substitutions therefor from time to time;
and
(c) reference to any agreement, instrument, Permit or other
document shall include reference to such agreement, instrument,
Permit or other document as the same may have been heretofore or
may from time to time hereafter be amended, supplemented, replaced
or restated.
1.8 Interpretation not Affected by Headings, etc. The division of this
agreement into Articles and sections and the insertion of headings are for
convenience of reference only and shall not affect the construction or
interpretation hereof.
1.9 General Provisions as to Certificates and Opinions, etc. Whenever the
delivery of a certificate is a condition precedent to the taking of any
action by the Administration Agent or any Lender hereunder, the truth and
accuracy of the facts and the diligent and good faith determination of the
opinions stated in such certificate shall in each case be conditions
precedent to the right of the Borrowers to have such action taken, and any
certificate executed by a Borrower shall be deemed to represent and warrant
that the facts stated in such certificate are true, accurate and complete.
1.10 Existing Facilities. At such time as the conditions precedent set forth
in section 6.1 have been satisfied, fulfilled or otherwise met to the
satisfaction of the Lenders, all letters of credit issued under the 2005
Credit Agreement shall for all purposes be deemed to be Letters of Credit
issued and outstanding under the Credit Facility. The Administration Agent
shall make any adjustments to fees in respect of such Letters of Credit as
a result of changes in fee rates under this agreement as compared to the
2005 Credit Agreement or changes in the respective Commitments of Lenders
under this agreement as compared to the 2005 Credit Agreement.
ARTICLE 2
THE CREDIT FACILITY
2.1 Credit Facility.
(1) Commitment. The Credit Facility is to be made available, subject
to the terms and conditions of this agreement, to the Borrowers by the
Lenders on a revolving basis in the principal amount of up to but not
exceeding C$2 billion.
Subject to the terms and conditions herein set forth, the Credit
Facility shall be available in Canadian Dollars by way of Prime Rate
Advances, Bankers' Acceptances or Letters of Credit, or in US Dollars
by way of Base Rate Advances or LIBOR Advances.
Subject to the terms and conditions herein set forth, each Lender
shall make Accommodations available under the Credit Facility pro rata
on the basis of such Lender's Commitment, as set forth in schedule 1
annexed hereto.
In no event shall a Lender be obligated to make Accommodations
available under the Credit Facility if after making such
Accommodations the C$ Equivalent Principal Outstanding of that
Lender's Accommodations would exceed that Lender's Commitment. For
greater certainty and notwithstanding section 2.1(6), in no event
shall the C$ Equivalent Principal Outstanding of the Swingline
Lender's Accommodations (including the entire Principal Outstanding by
way of Swingline Advances) exceed the Swingline Lender's Commitment.
Each Lender shall make Accommodations available to a Borrower through
its relevant Lending Branch.
(2) Purposes. The Credit Facility shall be used for general corporate
purposes (including by way of a backstop for commercial paper issued
by a Borrower or Material Subsidiary in an aggregate amount up to
C$800 million).
(3) Availability Period. Subject to the terms and conditions herein
set forth, Accommodations will be made available by way of multiple
draws from time to time under the Credit Facility up to the Business
Day immediately preceding the Maturity Date.
(4) Minimum Amounts. Subject to the Majority Lenders in any specific
instance waiving such requirement, the following minimum amounts shall
apply in respect of certain Borrowings and Drawings requested under
each Accommodation Request (excluding Swingline Advances):
(a) the aggregate of the Prime Rate Advances requested in any
Borrowing shall be at least C$25 million and a whole multiple of
C$1 million;
(b) each Bankers' Acceptance shall be in a Face Amount of at least
C$100,000 and a whole multiple thereof;
(c) the aggregate of the Face Amount of Bankers' Acceptances
requested in any Drawing shall be at least C$25 million and a whole
multiple of C$1 million; and
(d) the aggregate of the Base Rate Advances requested in any
Borrowing shall be at least US$25 million and a whole multiple of
US$1 million;
(e) the aggregate of the LIBOR Advances requested in any Borrowing
shall be at least US$25 million and a whole multiple of US$1
million.
(5) Revolving Nature. The Credit Facility is a so-called "revolving"
facility and amounts may be repaid thereunder and subsequently made
the subject of a further Accommodation (subject to compliance with the
terms and conditions of this agreement).
(6) Swingline Advances.
(a) The Swingline Lender establishes a committed revolving
operating credit facility as part of the Credit Facility in favour
of TELUS, up to the Swingline Amount, to finance the day-to-day
requirements of TELUS for general corporate purposes.
(b) Each Swingline Advance shall be made by the Swingline Lender by
way of a Prime Rate Advance (if requested in Canadian Dollars) or a
Base Rate Advance (if requested in US Dollars) on the same day's
notice if given to the Swingline Lender before noon (Toronto time)
or, if requested by TELUS, on an overdraft basis by debiting such
account of TELUS as shall be established by agreement of TELUS and
the Swingline Lender. The amount of any such overdraft from time to
time shall be deemed to be a Prime Rate Advance (to the extent of
such debit balance in Canadian Dollars) and a Base Rate Advance (to
the extent of such debit balance in US Dollars). TELUS shall ensure
that the aggregate C$ Equivalent Principal Outstanding of all
Swingline Advances does not exceed the Swingline Amount at any
time.
(c) Except as otherwise provided in section 12.1, for the purposes
of each other provision of this agreement, the Commitment of the
Swingline Lender under the Credit Facility shall be reduced by the
Swingline Amount and the rateable shares of the Lenders in each
Accommodation made under the Credit Facility (excluding the
Swingline) shall be adjusted proportionately.
(d) If the Commitment of the Swingline Lender determined in
accordance with section 2.1(6)(c) is reduced to nil, each further
reduction of the Commitment of the Swingline Lender determined
without regard for section 2.1(6)(c) will reduce the Swingline
Amount by the amount of such reduction.
2.2 Amortization.
(1) General. The Principal Outstanding and all other Obligations under
the Credit Facility will become due and payable in full on the
Maturity Date.
(2) Foreign Exchange Fluctuations. If at any time the C$ Equivalent
Principal Outstanding under the Credit Facility shall exceed 105% of
the aggregate Commitments of the Lenders or if at any time the C$
Equivalent Principal Outstanding under the Credit Facility shall have
exceeded for a 30 day period 103% of the aggregate Commitments of the
Lenders, in either case solely by virtue of a change in the Equivalent
Amount in Cdn. Dollars of Accommodations made in US Dollars, the
Borrower(s) shall forthwith following demand therefor by the
Administration Agent pay to the Administration Agent such amount as is
required to reduce such Principal Outstanding to such aggregate
Commitments; provided that, for the purposes of the calculation of
Principal Outstanding and Commitments under the foregoing provisions
of this section 2.2(2), there shall be deducted from each of Principal
Outstanding and Commitments the Equivalent Amount in Canadian Dollars
of such Principal Outstanding in US Dollars as shall enjoy the benefit
of a Hedge Instrument which protects the relevant Borrower against
increases in the value of US Dollars as against Cdn. Dollars; provided
further that, in the event that following repayment of all outstanding
Prime Rate Advances and Base Rate Advances there remains an excess
attributable to the outstanding principal amount under LIBOR Advances
or the Face Amount of outstanding Bankers' Acceptances or Letters of
Credit, such excess amount shall be paid by the relevant Borrower to
the Administration Agent, and shall be held by the Administration
Agent (pending the expiry of subsisting Interest Periods, the maturity
of Bankers' Acceptances or the termination of Letters of Credit, as
the case may be) in a cash collateral account and invested as directed
by such Borrower in Cash Equivalents as security for the obligations
of such Borrower in respect of such LIBOR Advances, Bankers'
Acceptances or Letters of Credit.
2.3 Replacement of Borrower. Initially, TELUS shall be the only Borrower.
TELUS and TCI may at any time prior to the date that is three months
before the Maturity Date deliver to the Administration Agent a notice to
the effect that TELUS will be replaced by TCI as a Borrower as to a
portion of the Credit Facility (the "TCI Portion") not to exceed C$800
million, which replacement will become effective on such date (occurring
prior to the Maturity Date) as shall be stipulated by TELUS and TCI in
such notice; provided that it shall be a condition to the effectiveness of
such replacement that no Default or Event of Default shall have occurred
and be continuing. Upon such replacement becoming effective:
(a) any reference herein to the "relevant Borrower" in the context
of the TCI Portion shall constitute a reference to TCI;
(b) any Obligations outstanding under the TCI Portion of the Credit
Facility shall cease to be obligations of TELUS and shall become
obligations of TCI;
(c) TELUS shall remain the Borrower in respect of the TELUS Portion
of the Credit Facility but shall thenceforth have no ability to
avail itself of Accommodations under the TCI Portion.
TELUS and TCI may avail themselves of this section 2.3 on one occasion only.
2.4 Voluntary Reductions and Prepayments.
(1) Reductions of Commitments. The relevant Borrower shall have the
right at any time and from time to time, without penalty or bonus,
upon delivery of a Repayment/Cancellation Notice to the Administration
Agent on the Required Notice, to terminate the whole or reduce in part
on a permanent basis the unused portion of the Commitments of the
Lenders in respect of such Borrower's Portion (pro rata among such
Lenders on the basis of their respective Commitments); provided that
each partial reduction shall be in an aggregate minimum amount of C$10
million and multiples in excess thereof of C$5 million.
(2) Prepayment of Credit Facility. The relevant Borrower shall have
the right at any time and from time to time, without penalty or bonus
but subject to section 9.4(1), upon delivery of a
Repayment/Cancellation Notice to the Administration Agent on the
Required Notice, to effect a voluntary prepayment on account of the
Principal Outstanding in respect of such Borrower's Portion, which
prepayment (subject to the Majority Lenders in any specific instance
waiving such requirement) shall be in an aggregate minimum amount of
C$10 million or US$10 million, as the case may be, and multiples in
excess thereof of C$5 million or US$5 million, as the case may be, or
in the full amount of such Principal Outstanding.
2.5 Payments.
(1) Payment Account. The relevant Borrower shall make each payment to
be made hereunder from a location within Canada, following delivery of
(where applicable) a Repayment/Cancellation Notice and on the Required
Notice, not later than 2:00 p.m. (Toronto time) in the currency of the
Accommodation or other Obligation in respect of which such payment is
made (be it Canadian Dollars or US Dollars) on the day (subject to
section 2.5(2)) when due, in same day funds, by deposit of such funds
to the Payment Account.
(2) Business Day. Subject to the next following sentence, whenever any
payment hereunder is due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be. If any such extension would
cause any payment of interest or fees on an Accommodation to be made
in the next following calendar month, such payment shall be made on
the last preceding Business Day.
(3) Application. Unless otherwise provided herein, all amounts
received by the Administration Agent on account of the Obligations
shall be applied by the Administration Agent as follows:
(a) first, to fulfil the relevant Borrower's obligation to pay
accrued and unpaid interest due and owing (including interest on
overdue interest and on other amounts), excluding interest accruing
on BA Equivalent Loans;
(b) second, to fulfil such Borrower's obligation to pay any fees
which are due and owing to the Lenders hereunder (including those
fees set forth in section 2.7), and any Increased Costs and other
unpaid costs, expenses and other amounts payable to the
Administration Agent and the Lenders in connection with any of the
Credit Facility Documents;
(c) third, to fulfil such Borrower's obligation to pay interest
accruing on BA Equivalent Loans and any amounts due and owing on
account of Principal Outstanding (including in respect of the Face
Amount of outstanding Bankers' Acceptances and Letters of Credit);
and
(d) fourth, to such Borrower or as any court of competent
jurisdiction may otherwise direct.
(4) Pro Rata Basis. All payments of principal, interest and fees
herein set forth, unless otherwise expressly stipulated, shall be made
for the account of, and distributed by the Administration Agent to,
the relevant Lenders pro rata on the basis of their respective
Commitments; provided that, in the event that certain Lenders have
received payment of interest as accrued up to a certain date, and
other Lenders have only received payment as accrued up to an earlier
date, any amounts required to be applied to interest hereunder shall
first be paid to such other Lenders, until all Lenders have received
payment of interest as accrued up to the same date, and thenceforth to
all Lenders as otherwise required by this agreement.
(5) Netting. If on any date liquidated amounts (other than interest
and fees) would be payable under this agreement in the same currency
by a Borrower to certain Lenders and by such Lenders to such Borrower,
then on such date, at the election of and upon notice from the
Administration Agent stating that netting is to apply to such
payments, each such party's obligations to make payment of any such
amount will be automatically satisfied and discharged and, if the
aggregate amount that would otherwise have been payable by such
Borrower to such Lenders exceeds the aggregate amount that would
otherwise have been payable by such Lenders to such Borrower or vice
versa, such obligations shall be replaced by an obligation upon such
Borrower or such Lenders by whom the larger aggregate amount would
have been payable to pay to the other the excess of the larger
aggregate amount over the smaller aggregate amount.
(6) Payments Free of Set-off. Except as set forth in section 2.5(5),
each payment made by a Borrower on account of the Obligations shall be
made without set-off or counterclaim.
2.6 Computations.
(1) Basis. All computations of:
(a) interest based on the Prime Rate and the Base Rate shall be
made by the Administration Agent on the basis of a year of 365 days
or, in the case of a leap year, 366 days and the actual number of
days (including the first day but excluding the last day) occurring
in the period for which such interest is payable; and
(b) interest based on LIBOR shall be made by the Administration
Agent on the basis of a year of 360 days and the actual number of
days (including the first day but excluding the last day) occurring
in the period for which such interest is payable.
Computations of fees under sections 2.7(a), 4.6 and 5.6(1) and (2)
shall be made by the Administration Agent on the basis of a year of
365 days or, in the case of a leap year and only with respect to
fees under sections 2.7(a) and 5.6(1) and (2), 366 days and the
actual number of days (including the first day but excluding the
last day) occurring in the period for which such fees are payable.
Each determination by the Administration Agent of an amount of
interest, Discount Proceeds or fees payable by a Borrower hereunder
shall be conclusive and binding for all purposes, absent
demonstrated error.
(2) Interest Act (Canada). For purposes of disclosure pursuant to the
Interest Act (Canada), the yearly rate of interest to which any rate
of interest based on LIBOR is equivalent may be determined by
multiplying the applicable rate by a fraction, the numerator of which
is the number of days to the same calendar date in the next calendar
year (or 365 days if the calculation is made as of February 29) and
the denominator of which is 360.
2.7 Fees. The Borrowers shall pay to the Administration Agent the following
fees, calculated as follows:
(a) a commitment fee (for the account of the Lenders pro rata on
the basis of their respective Commitments) payable by the relevant
Borrower in Cdn. Dollars quarterly in arrears on the fifth Business
Day of the first month following the end of each Financial Quarter,
and on the Maturity Date, calculated on a daily basis on the
difference between the aggregate C$ Equivalent Principal
Outstanding (converted for purposes of such calculation into the
Equivalent Amount in Cdn. Dollars as at the last day of such
Financial Quarter) under such Borrower's Portion of the Credit
Facility and the aggregate Commitments with respect to such
Borrower's Portion, at the rate set forth in the definition of
Applicable Margin; and
(b) the fees agreed with the Administration Agent in an agreement
of even date.
2.8 Interest on Overdue Amounts. Except as otherwise provided in this
agreement, each amount owed by a Borrower to a Lender which is not paid
when due (whether at stated maturity, on demand, by acceleration or
otherwise) shall bear interest (both before and after maturity, default and
judgment), from the date on which such amount is due until such amount is
paid in full, payable on demand, at a rate per annum equal at all times to
the Base Rate (in the case of amounts denominated in US Dollars) or the
Prime Rate (in the case of amounts denominated in Cdn. Dollars), in each
case plus the Applicable Margin plus a further two (2%) percent per annum,
2.9 Account Debit Authorization. Each Borrower authorizes and directs the
Administration Agent, in its discretion, to automatically debit, by
mechanical, electronic or manual means, the bank accounts of such Borrower
maintained with TD Bank (for so long as TD Bank is Administration Agent
hereunder) and designated by such Borrower in writing for all amounts due
and payable under this agreement on account of principal, interest and fees
comprised in the Obligations.
2.10 Administration Agent's Discretion on Allocation. In the event that it is
not practicable to:
(a) allocate an Accommodation pro rata in accordance with section
3.2 or 4.1(2) by reason of the occurrence of circumstances
described in Article 9; or
(b) allocate a Drawing among the Lenders in accordance with section
4.1(2) by reason of the need to ensure that the aggregate amount of
Bankers' Acceptances required to be accepted hereunder complies
with the minimum amounts or increments set forth in section 2.1(4);
the Administration Agent is authorized by the Borrowers and each Lender to
make such allocation as the Administration Agent determines in its sole
and unfettered discretion may be equitable in the circumstances, subject
in all cases to section 2.1. All fees in respect of any such Drawing, and
fees payable under section 2.7(a), shall be adjusted, as among the
Lenders, by the Administration Agent accordingly.
2.11 Where Borrower Fails to Pay. Unless the Administration Agent has been
notified in writing by a Borrower at least one Business Day prior to the
date on which any payment to be made by such Borrower hereunder is due
that such Borrower does not intend to remit such payment, the
Administration Agent may, in its discretion, assume that such Borrower has
remitted such payment when so due and the Administration Agent may, in its
discretion and in reliance upon such assumption, make available to each
relevant Lender on such payment date an amount equal to the portion of
such payment which is due to such Lender pursuant to this agreement.
If such Borrower does not in fact remit such payment to the Administration
Agent, the Administration Agent (without prejudice to any rights or
remedies of the Lenders against the Borrowers) shall promptly notify each
relevant Lender and each such Lender shall forthwith on demand repay to the
Administration Agent an amount equal to the portion of such assumed payment
made available to such Lender, together with interest thereon until the
date of repayment thereof at a rate determined by the Administration Agent
(such rate to be conclusive and binding on such Lender) in accordance with
the Administration Agent's usual banking practice for similar advances to
financial institutions of like standing as such Lender but in no event
greater than the Prime Rate.
2.12 Rollover and Conversion.
(1) General. Subject to the terms and conditions of this agreement, a
Borrower may from time to time request that any Drawing or type of
Borrowing or any portion thereof be rolled over or converted in
accordance with the provisions hereof.
(2) Request. Each request by a Borrower for a Rollover or Conversion
shall be made by the delivery of a duly completed and executed
Accommodation Request to the Administration Agent with the Required
Notice and the provisions of Articles 3 or 4 shall apply to each
request for a Rollover or Conversion as if such request were a request
thereunder for an Advance or a Drawing (as the case may be).
(3) Effective Date. Each Rollover or Conversion of a LIBOR Advance or
Bankers' Acceptance shall be made effective as of, in the case of a
LIBOR Advance, the last day of the subsisting Interest Period and, in
the case of a Bankers' Acceptance, the maturity date applicable
thereto.
(4) Failure to Elect. If a Borrower does not deliver an Accommodation
Request at or before the time required by section 2.12(2) and:
(a) in the case of a Bankers' Acceptance fails to give the Required
Notice that it will pay to the Administration Agent for the account
of the applicable Lender the Face Amount thereof on the maturity
date or if such Borrower gives such notice but fails to act in
accordance with it, such Borrower shall be deemed to have requested
a Conversion of the Face Amount thereof to a Prime Rate Advance and
all of the provisions hereof relating to a Prime Rate Advance shall
apply thereto; or
(b) in the case of a LIBOR Advance, fails to give the Required
Notice that it will pay to the Administration Agent for the account
of the applicable Lender the principal amount thereof at the end of
the relevant Interest Period or if such Borrower gives such notice
but fails to act in accordance with it, such Borrower shall be
deemed to have requested a Rollover of such Advance to either a
LIBOR Advance having an Interest Period of one month (and all of
the provisions hereof applicable to LIBOR Advances shall apply
thereto) (in the case of a failure to deliver an Accommodation
Request and give the Required Notice) or a Base Rate Advance (in
the case of a failure to act in accordance with a notice).
(5) Continuing Obligation. A Rollover or Conversion shall not
constitute a repayment of the relevant Accommodation or a re-borrowing
by the relevant Borrower but shall result in a change in the basis of
calculation of interest, discounts or fees (as the case may be) for,
and/or currency of, such Accommodation. However, where a Conversion
takes place from a US Dollar Advance to a Canadian Dollar Advance, or
vice versa, the same may be effected only by such Borrower repaying
the entire Principal Outstanding under the existing Advance (together
with all accrued and unpaid interest thereon), in the currency of such
existing Advance, and receiving the proceeds of the new Advance in the
currency of such new Advance.
(6) Limit. Notwithstanding any other provision of this agreement, at
no time shall there be more than 16 separate maturity dates, in
aggregate, for all LIBOR Advances and Bankers' Acceptances outstanding
under the Credit Facility.
ARTICLE 3
ADVANCES
3.1 Advances.
(1) Commitment. Each Lender agrees (on a several basis with the other
Lenders, up to the amount of such Lender's Commitment), on the terms
and conditions herein set forth, from time to time on any Business
Day, to make Advances under the Credit Facility prior to the
cancellation or termination thereof.
(2) Amounts. The aggregate principal amount of each Borrowing shall
comply with section 2.1(4).
3.2 Making the Advances (except Swingline Advances).
(1) Notice. Each Borrowing shall be made on the Required Notice given
not later than 1:00 p.m. (Toronto time) by the relevant Borrower to
the Administration Agent, and the Administration Agent shall give to
each Lender prompt notice thereof and of such Lender's rateable
portion of each type of Borrowing to be made under the Borrowing in
the currency of such Borrowing. Each such notice of a Borrowing shall
be given by way of an Accommodation Request or by telephone (confirmed
promptly in writing), with the same information as would be contained
in an Accommodation Request, including the requested date of such
Borrowing and the aggregate amount of each type of Borrowing
comprising such Borrowing.
(2) Lender Funding. Each Lender shall, before noon (Toronto time) on
the date of the requested Borrowing, deposit to the relevant Payment
Account in same day funds such Lender's rateable portion (subject to
section 2.10) of each type of Borrowing comprising such Borrowing (in
Canadian Dollars, in the case of Prime Rate Advances, and in US
Dollars, in the case of LIBOR Advances and Base Rate Advances).
Promptly upon receipt by the Administration Agent of such funds and
upon fulfilment of the applicable conditions set forth in Article 6,
the Administration Agent will make such funds available to the
relevant Borrower by debiting such account (or causing such account to
be debited), and by crediting such account of such Borrower as shall
be agreed with the Administration Agent (or causing such account to be
credited) with such Advances.
(3) Failure by Lender to Fund. Unless the Administration Agent shall
have received notice from a Lender at least one Business Day prior to
the date of any Borrowing that such Lender will not make available to
the Administration Agent such Lender's rateable portion of such
Borrowing, the Administration Agent may assume that such Lender has
made each such portion available to the Administration Agent on the
date of such Borrowing in accordance with section 3.2(2) and the
Administration Agent may, in reliance upon such assumption, make
available to the relevant Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have made its
rateable portion available to the Administration Agent, such Lender
shall pay such corresponding amount to the Administration Agent
forthwith on demand. If such Lender shall pay such corresponding
amount to the Administration Agent, the amounts so paid shall
constitute such Lender's rateable portion of such Borrowing for the
purposes of this agreement. The Administration Agent shall also be
entitled to recover from such Lender interest on such corresponding
amount, for each day from the date such amount was made available by
the Administration Agent to such Borrower until the date such amount
is repaid to the Administration Agent, at the rate payable by such
Borrower with respect to the affected type of Borrowing, together with
the Administration Agent's reasonable administrative fee. If such
Lender shall not pay such corresponding amount to the Administration
Agent forthwith on demand, such Borrower shall pay such corresponding
amount (together with accrued and unpaid interest at the applicable
rate herein set forth for the affected type of Borrowing) to the
Administration Agent within three Business Days of demand being made
upon it.
(4) Notice of Failure. The Administration Agent shall notify the
relevant Borrower of the failure of any Lender to make an Advance if:
(a) such failure has not been remedied within seven days; or
(b) the Administration Agent reasonably believes that such failure
was caused by any reason other than a technical failure or as a
result of a defect in the arrangements hereunder for funding
Advances.
The Administration Agent shall not be liable to either Borrower or any
Lender in respect of notice given or not given pursuant to this section
3.2(4). In the event of the continuing failure by any Lender (in this
section 3.2(4), the "defaulting Lender") to make an Advance, the
relevant Borrower shall use its reasonable efforts in consultation with
the Administration Agent to arrange for one or more other persons (in
this section 3.2(4), the "assuming Lender") reasonably satisfactory to
such Borrower and the Administration Agent to assume all or a portion
of the relevant Commitments and acquire the outstanding Accommodations
and other rights and interests of the defaulting Lender hereunder. The
assuming Lender and defaulting Lender shall execute all such documents
as may be reasonably required by the Administration Agent and such
Borrower to effect such assumption and acquisition.
3.3 Interest on Advances. The relevant Borrower shall pay interest on the
unpaid principal amount of each Advance at the following rates per annum:
(1) Prime Rate Advances. If and so long as such Advance is a Prime
Rate Advance, at a rate per annum equal at all times to the sum of the
Prime Rate in effect from time to time plus the Applicable Margin,
calculated on the daily principal amount outstanding under such Prime
Rate Advance and payable in Cdn. Dollars in arrears:
(a) monthly on the fifth Business Day of each month with respect to
the previous calendar month (calculated as at the last day of such
previous calendar month); and
(b) when such Prime Rate Advance becomes due and payable in full.
(2) Base Rate Advances. If and so long as such Advance is a Base Rate
Advance, at a rate per annum equal at all times to the sum of the Base
Rate in effect from time to time plus the Applicable Margin,
calculated on the daily principal amount outstanding under such Base
Rate Advance and payable in US Dollars in arrears:
(a) monthly on the fifth Business Day of each month with respect to
the previous calendar month (calculated as at the last day of such
previous calendar month); and
(b) when such Base Rate Advance becomes due and payable in full.
(3) LIBOR Advances. If and so long as such Advance is a LIBOR Advance,
at a rate per annum equal at all times during each Interest Period for
such LIBOR Advance to the sum of LIBOR for such Interest Period plus
the Applicable Margin, calculated on the daily principal amount
outstanding under such LIBOR Advance and payable in US Dollars:
(a) at the end of each Interest Period (except where such Interest
Period exceeds three months in duration, in which case such
interest shall be payable on the dates falling every three months
following the commencement of the Interest Period and, finally, at
the end of such Interest Period); and
(b) when such LIBOR Advance becomes due and payable in full or is
converted to a Base Rate Advance.
ARTICLE 4
BANKERS' ACCEPTANCES
4.1 Acceptances.
(1) Commitment. Subject to section 4.11, each Lender agrees (on a
several basis with the other Lenders, up to the amount of such
Lender's Commitment), on the terms and conditions herein set forth,
from time to time on any Business Day, to accept and purchase Bankers'
Acceptances under the Credit Facility prior to the cancellation or
termination thereof.
(2) Amounts. Each Drawing shall be in an aggregate Face Amount not
less than the minimum amount (or requisite multiple in excess thereof)
set forth in section 2.1(4) and shall consist of the creation by the
relevant Borrower of Bankers' Acceptances on the same day, effected or
arranged by the Lenders in accordance with section 4.4, rateably
according to their respective Commitments (subject to section 2.10).
4.2 Drawdown Request.
(1) Notice. Each Drawing shall be made on the Required Notice given
not later than 1:00 p.m. (Toronto time) by the relevant Borrower to
the Administration Agent and the Administration Agent shall give to
each Lender prompt notice thereof and of such Lender's rateable
portion thereof. Each such notice of a Drawing shall be given by way
of an Accommodation Request or by telephone (confirmed promptly in
writing) with the same information as would be contained in an
Accommodation Request, including the requested Drawing Date and the
Face Amounts of the Drawing.
(2) Maturity. The relevant Borrower shall not request in an
Accommodation Request a term for Bankers' Acceptances which would end
on a date subsequent to the Maturity Date.
4.3 Form of Bankers' Acceptances.
(1) Form. Each Bankers' Acceptance shall:
(a) be in a Face Amount allowing for conformance with section 2.1(4);
(b) be dated the Drawing Date;
(c) mature and be payable by the relevant Borrower (in common with all
other Bankers' Acceptances created in connection with such Drawing)
on a Business Day which occurs no more than six months after the
date thereof, subject to availability; and
(d) be in a form satisfactory to the relevant Lender.
(2) Grace. Each Borrower hereby waives presentment for payment and any
other defence to payment of any amounts due in respect of any Bankers'
Acceptance, and hereby renounces, and shall not claim, any days of
grace for the payment of any Bankers' Acceptance.
4.4 Completion of Bankers' Acceptance. Upon receipt of the notice from the
Administration Agent pursuant to section 4.2(1), each Lender is thereupon
authorized to execute Bankers' Acceptances as the duly authorized attorney
of the relevant Borrower pursuant to section 4.8, in accordance with the
particulars provided by the Administration Agent.
4.5 BA Proceeds. Each Lender shall, for same day value on the Drawing Date
specified by the relevant Borrower in the applicable Accommodation
Request, credit the relevant Payment Account with the applicable Discount
Proceeds of the Bankers' Acceptances purchased by that Lender to the
Administration Agent for the account of such Borrower, less the stamping
fee set forth in section 4.6. Promptly upon receipt by the Administration
Agent of such funds and upon fulfilment of the applicable conditions set
forth in Article 6, the Administration Agent will make such funds
available to such Borrower by debiting such account (or causing such
account to be debited), and by crediting such account as shall be agreed
with such Borrower (or causing such account to be credited) with such
Discount Proceeds less such stamping fee. Each Lender may at any time and
from time to time purchase, hold, sell, rediscount or otherwise dispose of
any Bankers' Acceptance and no such dealing shall prejudice or impair such
Borrower's obligations under section 4.7.
4.6 Stamping Fee. The relevant Borrower shall pay to the Administration
Agent in respect of each Drawing (for the account of the Lenders, pro rata
on the basis of their respective Commitments, subject to section 2.10) a
stamping fee in Cdn. Dollars. Such stamping fee shall be payable by such
Borrower in full on the Drawing Date, and shall be calculated on the Face
Amount of such Bankers' Acceptances on the basis of the number of days in
the term of such Bankers' Acceptances (including the Drawing Date but
excluding the maturity date) at a rate per annum equal to the applicable
percentage set forth under "Bankers' Acceptances" in the definition of
Applicable Margin.
4.7 Payment at Maturity. The relevant Borrower shall pay to the
Administration Agent, and there shall become due and payable, on the
maturity date for each Bankers' Acceptance an amount in same day funds
equal to the Face Amount of the Bankers' Acceptance. Such Borrower shall
make each payment hereunder in respect of Bankers' Acceptances by deposit
of the required funds to the relevant Payment Account. Upon receipt of
such payment, the Administration Agent will promptly thereafter cause such
payment to be distributed to the Lenders rateably (based on the proportion
that the Face Amount of Bankers' Acceptances accepted by a Lender maturing
on the relevant date bears to the Face Amount of Bankers' Acceptances
accepted by all the Lenders maturing on such date). Such payment to the
Administration Agent shall satisfy such Borrower's obligations under a
Bankers' Acceptance to which it relates and the accepting institution
shall thereafter be solely responsible for the payment of such Bankers'
Acceptance.
4.8 Power of Attorney Respecting Bankers' Acceptances. In order to
facilitate issues of Bankers' Acceptances pursuant to this agreement, each
Borrower authorizes each Lender, and for this purpose appoints each Lender
its lawful attorney (with full power of substitution), to complete, sign
and endorse drafts issued in accordance with section 4.4 on its behalf in
handwritten or by facsimile or mechanical signature or otherwise and, once
so completed, signed and endorsed, and following acceptance of them as
Bankers' Acceptance under this agreement, then purchase, discount or
negotiate such Bankers' Acceptances in accordance with the provisions of
this Article Four. Drafts so completed, signed, endorsed and negotiated on
behalf of a Borrower by any Lender shall bind such Borrower as fully and
effectively as if so performed by an authorized officer of such Borrower.
4.9 Prepayments. Except as required by section 4.10, no payment of the
Face Amount of a Bankers' Acceptance shall be made by a Borrower to a
Lender prior to the maturity date thereof. Any such required payment made
before the applicable maturity date shall be held by the Administration
Agent in a cash collateral account and invested in Cash Equivalents as
security to provide for or to secure payment of the Face Amount of such
outstanding Bankers' Acceptance upon maturity. Any such required payment
made before the applicable maturity date by the relevant Borrower to the
Administration Agent, to the extent of the amount thereof, shall satisfy
such Borrower's obligations under the Bankers' Acceptance to which it
relates as to a like amount. The accepting institution shall thereafter be
solely responsible for the payment of the Bankers' Acceptance and shall
indemnify and hold such Borrower harmless against any liabilities, costs
or expenses incurred by such Borrower as a result of any failure by such
Lender to pay the Bankers' Acceptance as to such like amount in accordance
with its terms.
4.10 Default. Upon the occurrence of an Event of Default and the
Administration Agent declaring the Obligations to be due and payable
pursuant to section 10.2, and notwithstanding the date of maturity of any
outstanding Bankers' Acceptances, an amount equal to the Face Amount of
all outstanding Bankers' Acceptances which the Lenders are required to
honour shall thereupon forthwith become due and payable by the relevant
Borrower to the Administration Agent.
4.11 Non-Acceptance Lenders. The parties acknowledge that a Lender (a
"Non-Acceptance Lender") may not be permitted by applicable Law to, or may
not by virtue of customary market practices, stamp or accept commercial
drafts. A Non-Acceptance Lender shall, in lieu of accepting and purchasing
Bankers' Acceptances, make a BA Equivalent Loan. The amount of each BA
Equivalent Loan shall be equal to the Discount Proceeds which would be
realized from a hypothetical sale of those Bankers' Acceptances which that
Non-Acceptance Lender would otherwise be required to accept and purchase
as part of such Drawing. To determine the amount of those Discount
Proceeds, the hypothetical sale shall be deemed to take place at the
Non-Acceptance Discount Rate for that BA Equivalent Loan. Any BA
Equivalent Loan shall be made on the relevant Drawing Date, and shall
remain outstanding for the term of the relevant Bankers' Acceptances. For
greater certainty, concurrently with the making of a BA Equivalent Loan, a
Non-Acceptance Lender shall be entitled to deduct therefrom an amount
equal to the stamping fee which that Lender would otherwise be entitled to
receive pursuant to section 4.6 as part of that BA Equivalent Loan if that
BA Equivalent Loan was a Bankers' Acceptance, based on the amount of
principal and interest payable on the maturity date of that BA Equivalent
Loan. On the maturity date for the Bankers' Acceptances required by a
Borrower, such Borrower shall pay to each Non-Acceptance Lender the amount
of such Lender's BA Equivalent Loan plus interest on the principal amount
of that BA Equivalent Loan calculated at the applicable Non-Acceptance
Discount Rate (in effect the date such BA Equivalent Loan was made) from
the date of acceptance to but excluding the maturity date of that BA
Equivalent Loan.
Unless otherwise expressly provided herein or unless the context otherwise
requires, all references in this agreement to "Bankers' Acceptances" shall
be deemed to include BA Equivalent Loans made by a Non Acceptance Lender
as part of an Accommodation by way of Bankers' Acceptances, and all
references to "Drawings" shall be deemed to include the making of one or
more BA Equivalent Loans pursuant to an Accommodation Request.
ARTICLE 5
LETTERS OF CREDIT
5.1 Letters of Credit Commitment.
(1) Issuance. Each Lender agrees (on a several basis with the other
Lenders up to the amount of such Lender's Commitment), on the terms
and conditions herein set forth, from time to time on any Business
Day, to issue Letters of Credit under the Credit Facility, through the
Fronting Lender for the account of the relevant Borrower prior to the
cancellation or termination thereof; provided that at no time shall
the Face Amount of outstanding Letters of Credit exceed collectively
C$360 million.
(2) Fronting. All Letters of Credit shall be issued by the Fronting
Lender on behalf of the relevant Lenders and for this purpose:
(a) the Principal Outstanding in respect of such Letters of Credit
shall be considered to be allocated among such Lenders pro rata on
the basis of their respective Commitments and, on the issuance of a
Letter of Credit under the Credit Facility, the Administration
Agent shall advise each of the relevant Lenders of their pro rata
share of the liability under such Letter of Credit having regard to
their respective Commitments and on the basis that each such Lender
is liable to, and by entering into this agreement agrees to,
indemnify and hold harmless the Fronting Lender in relation to the
Fronting Lender's liability as issuer of such Letter of Credit to
the extent of the amount of such pro rata share of such liability;
(b) for greater certainty and without limiting the generality of
section 12.1, the Principal Outstanding among the relevant Lenders
shall be adjusted in the circumstances and in the manner
contemplated by section 12.1 in order to reflect the Issuance by
the Fronting Lender on behalf of such Lenders.
5.2 Notice of Issuance. Each Issuance shall be made on the Required Notice,
given in the form of an Accommodation Request not later than 1:00 p.m.
(Toronto time) by the relevant Borrower to the Fronting Lender (with a copy
of each such Accommodation Request to the Administration Agent). In
addition, the relevant Borrower shall execute and deliver the Fronting
Lender's customary form of letter of credit indemnity agreement; provided
that, if there is any inconsistency between the terms of this agreement and
the terms of the Fronting Lender's customary form of indemnity agreement,
the terms of this agreement shall prevail.
5.3 Form of Letter of Credit. Each Letter of Credit to be issued hereunder
shall:
(a) be dated the Issue Date;
(b) have an expiration date on a Business Day which occurs no more
than 365 days after the Issue Date (provided that Letters of Credit
may have a term in excess of 365 days if the Fronting Lender shall
agree); and
(c) comply with the definition of Letter of Credit and shall
otherwise be satisfactory in form and substance to the Fronting
Lender.
Except to the extent otherwise expressly provided herein or in another
Credit Facility Document, the Uniform Customs or, as the case may be,
ISP98 shall apply to and govern each Letter of Credit.
5.4 Procedure for Issuance of Letters of Credit.
(1) Issue. On the Issue Date, the Fronting Lender will complete and
issue a Letter of Credit in favour of the Beneficiary as specified by
the relevant Borrower in its Accommodation Request. Such Letters of
Credit shall be deemed to have been issued by the relevant Lenders pro
rata on the basis of their respective Commitments.
(2) Time for Honour. No Letter of Credit shall require payment against
a conforming draft to be made thereunder on the same Business Day upon
which such draft is presented, if such presentation is made after
11:00 a.m. (Toronto time) on such Business Day.
(3) Text. Prior to the Issue Date, the relevant Borrower shall specify
a precise description of the documents and the verbatim text of any
certificate to be presented by the Beneficiary prior to payment under
the Letter of Credit. The Fronting Lender may require changes in any
such documents or certificate, acting reasonably.
(4) Conformity. In determining whether to pay under a Letter of
Credit, the Fronting Lender shall be responsible only to determine
that the documents and certificates required to be delivered under
such Letter of Credit have been delivered and that they comply on
their face with the requirements of such Letter of Credit.
5.5 Payment of Amounts Drawn Under Letters of Credit. In the event of any
request for a drawing under any Letter of Credit, the Fronting Lender may
notify the relevant Borrower (with a copy of the notice to the
Administration Agent) on or before the date on which it intends to honour
such drawing. The relevant Borrower (whether or not such notice is given)
shall reimburse the Fronting Lender on demand by the Fronting Lender, in
Cdn. Dollars, an amount, in same day funds, equal to the amount of such
drawing.
Unless the relevant Borrower notifies the Fronting Lender and the
Administration Agent, prior to 1:00 p.m. (Toronto time) on the second
Business Day following receipt by such Borrower of the notice from the
Fronting Lender referred to in the preceding paragraph, that such Borrower
intends to reimburse the Fronting Lender for the amount of such drawing
with funds other than the proceeds of Advances:
(a) such Borrower shall be deemed to have given an Accommodation
Request to the Administration Agent requesting the relevant Lenders
to make a Prime Rate Advance on the third Business Day following
the date on which such notice is provided by the Fronting Lender to
such Borrower in an amount equal to the amount of such drawing; and
(b) subject to the terms and conditions of this agreement
(including those set forth in Article 6), the relevant Lenders
shall, on the next Business Day following the date of such drawing,
make such Advance in accordance with Article 3 and the
Administration Agent shall apply the proceeds thereof to the
reimbursement of the Fronting Lender for the amount of such
drawing.
5.6 Fees.
(1) Issue Fee. The relevant Borrower shall on the fifth Business Day
following the end of each Financial Quarter and on the Maturity Date
pay to the Administration Agent, in relation to each Letter of Credit
issued under the Credit Facility at the request of such Borrower, for
the account of the relevant Lenders a fee in respect of each such
Letter of Credit outstanding during any portion of such Financial
Quarter equal to that specified under "Issuance fee" in the definition
of "Applicable Margin" multiplied by an amount equal to the undrawn
portion of the Face Amount of each such Letter of Credit, such fee to
be payable in Cdn. Dollars and determined for a period equal to the
number of days during such Financial Quarter that each such Letter of
Credit was outstanding.
(2) Fronting Fee. In addition, the relevant Borrower shall on the
fifth Business Day following the end of each Financial Quarter and on
the Maturity Date pay to the Administration Agent, in relation to each
Letter of Credit issued under the Credit Facility at the request of
such Borrower, for the account of the Fronting Lender a fronting fee
in respect of each such Letter of Credit outstanding during any
portion of such Financial Quarter equal to five basis points per annum
multiplied by an amount equal to the undrawn portion of the Face
Amount of each such Letter of Credit, such fee to be determined for a
period equal to the number of days during such Financial Quarter that
each such Letter of Credit was outstanding.
(3) Administration Fee. The relevant Borrower shall pay to the
Fronting Lender, upon the issuance, amendment or transfer of each
Letter of Credit requested by such Borrower, the Fronting Lender's
standard documentary and administrative charges for issuing, amending
or transferring standby or commercial letters of credit or letters of
guarantee of a similar amount, term and risk.
5.7 Obligations Absolute. The obligation of the relevant Borrower to reimburse
the Fronting Lender for drawings made under any Letter of Credit shall be
unconditional and irrevocable and shall be fulfilled strictly in accordance
with the terms of this agreement under all circumstances, including:
(a) any lack of validity or enforceability of any Letter of Credit;
(b) the existence of any claim, set-off, defence or other right
which such Borrower may have at any time against a Beneficiary or
any transferee of any Letter of Credit (or any persons for whom any
such transferee may be acting), the Fronting Lender, any Lender or
any other person, whether in connection with this agreement, the
Credit Facility Documents, the transactions contemplated herein and
therein or any unrelated transaction (including any underlying
transaction between such Borrower or an affiliate and the
Beneficiary of such Letter of Credit);
(c) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or
inaccurate in any respect;
(d) payment by the Fronting Lender under any Letter of Credit
against presentation of a demand, draft or certificate or other
document which does not comply with the terms of such Letter of
Credit (provided that such payment does not breach the standards of
reasonable care specified in the Uniform Customs or disentitle the
Fronting Lender to reimbursement under ISP98, in each case as
stated on its face to be applicable to the respective Letter of
Credit); or
(e) the fact that a Default or an Event of Default shall have
occurred and be continuing.
5.8 Indemnification; Nature of Lenders' Duties.
(1) Indemnity. In addition to amounts payable as elsewhere provided in
this Article 5, the relevant Borrower hereby agrees to protect,
indemnify, pay and save the Fronting Lender and each relevant Lender
and their respective directors, officers, employees, agents and
representatives harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
legal fees and expenses) which the indemnitee may incur or be subject
to as a consequence, direct or indirect, of:
(a) the issuance of any Letter of Credit, other than as a result of
the breach of the standards of reasonable care specified in the
Uniform Customs or where the Fronting Lender would not be entitled
to the foregoing indemnification under ISP98, in each case as
stated on its face to be applicable to such Letter of Credit; or
(b) the failure of the indemnitee to honour a drawing under any
Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto
Official Body (all such acts or omissions called in this section
5.8, "Government Acts").
(2) Risk. As between the relevant Borrower, on the one hand, and the
Fronting Lender and the relevant Lenders, on the other hand, such
Borrower assumes all risks of the acts and omissions of, or misuse of
the Letters of Credit issued by the Fronting Lender by, the respective
Beneficiaries of such Letters of Credit and, without limitation of the
foregoing, neither the Fronting Lender nor any Lender shall be
responsible for:
(a) the form, validity, accuracy, genuineness or legal effect of
any document submitted by any party in connection with the
application for and issuance of such Letters of Credit, even if it
should in fact prove to be in any or all respects invalid,
inaccurate, fraudulent or forged;
(b) the invalidity or insufficiency of any instrument transferring
or assigning or purporting to transfer or assign any such Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for
any reason;
(c) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by fax, electronic transmission, mail,
cable, telegraph, telex or otherwise, whether or not they are in
cipher;
(d) errors in interpretation of technical terms;
(e) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any such Letter
of Credit or of the proceeds thereof;
(f) the misapplication by the Beneficiary of any such Letter of
Credit of the proceeds of any drawing under such Letter of Credit;
and
(g) any consequences arising from causes beyond the control of the
Fronting Lender or any Lender, including any Government Acts.
None of the above shall affect, impair or prevent the vesting of any
of the Lenders' rights or powers hereunder. No action taken or omitted
by the Fronting Lender or any Lender under or in connection with any
Letter of Credit issued by it or the related certificates, if taken or
omitted in good faith, shall put the Fronting Lender or any Lender
under any resulting liability to the relevant Borrower (provided that
the Fronting Lender acts in accordance with the standards of
reasonable care specified in the Uniform Customs and otherwise as may
be required under ISP98, in each case as stated on its face to be
applicable to the respective Letter of Credit).
5.9 Default, Maturity, etc. Upon the earlier of the Maturity Date and the
Administration Agent declaring the Obligations to be due and payable
pursuant to section 10.2, and notwithstanding the expiration date of any
outstanding Letters of Credit issued under the Credit Facility, an amount
equal to the Face Amount of all outstanding Letters of Credit under the
Credit Facility, and all accrued and unpaid fees owing by the relevant
Borrower in respect of the Issuance of such Letters of Credit pursuant to
section 5.6, if any, shall thereupon forthwith become due and payable by
such Borrower to the Administration Agent and, except for any amount
payable in respect of unpaid fees as aforesaid, such amount shall be held
in a cash collateral account by the Administration Agent and invested in
Cash Equivalents as security to provide for or to secure payment of the
amounts payable under such Letters of Credit in respect of any drawing
thereunder.
The relevant Borrower shall pay to the Administration Agent the aforesaid
amount in respect of both any Letter of Credit outstanding hereunder and
any Letter of Credit which is the subject matter of any order, judgment,
injunction or other such determination (in this section 5.9, a "Judicial
Order") restricting payment by the Fronting Lender under and in accordance
with such Letter of Credit or extending the Fronting Lender's liability
under such Letter of Credit beyond the expiration date stated therein.
Payment in respect of each such Letter of Credit shall be due in the
currency in which such Letter of Credit is stated to be payable.
Subject to section 2.5(5), the Administration Agent shall with respect to
each such Letter of Credit, upon the later of:
(a) the date on which any final and non-appealable order, judgment
or other such determination has been rendered or issued either
terminating the applicable Judicial Order or permanently enjoining
the Fronting Lender from paying under such Letter of Credit; and
(b) the earlier of:
(i) the date on which either the original counterpart of the Letter
of Credit is delivered to the Administration Agent for
cancellation or the Fronting Lender is released by the
Beneficiary from any further obligations in respect thereof;
and
(ii) the expiry (to the extent permitted by any applicable Law) of
such Letter of Credit;
pay to the relevant Borrower an amount equal to the difference between the
amount paid to the Administration Agent by such Borrower pursuant to this
section 5.9 and the aggregate amount paid by the Fronting Lender under
such Letter of Credit.
ARTICLE 6
CLOSING CONDITIONS
6.1 Closing Conditions to Initial Availability. The Borrowers shall not be
entitled to an Accommodation under the Credit Facility unless the
conditions precedent set forth in this section 6.1 have been satisfied,
fulfilled or otherwise met to the satisfaction of the Lenders on the
Closing Date.
(1) Documents. The Credit Facility Documents (other than Bankers'
Acceptances and Letters of Credit yet to be issued) shall have been
executed and delivered to the Administration Agent.
(2) Constitutional Documents. The Administration Agent shall have
received certified copies of the constitutional documents of the
Borrowers and each Material Subsidiary to the extent not previously
delivered to the Administration Agent or so delivered and subsequently
amended.
(3) Resolutions. The Administration Agent shall have received
certified copies of resolutions of the board of directors (or, where
applicable, executive, audit or other relevant committee thereof) of
each Borrower authorizing the execution, delivery and performance of
each Credit Facility Document to which it is a party.
(4) Incumbency. The Administration Agent shall have received a
certificate of the secretary or an assistant secretary of each
Borrower certifying the names and the true signatures of the officers
authorized to sign the Credit Facility Documents to which it is a
party.
(5) Good Standing. The Administration Agent shall have received a
certificate of good standing or like certificate in respect of each
Borrower and Material Subsidiary available from appropriate government
officials of its jurisdiction of formation.
(6) Representations and Warranties. All of the representations and
warranties contained herein or in any other Credit Facility Document
shall be true and correct in all material respects on and as of the
Closing Date as though made on and as of such date and the
Administration Agent shall have received a certificate of a Senior
Officer of TELUS so certifying to the Lenders.
(7) No Default. No Default or Event of Default shall have occurred and
be continuing, and the Administration Agent shall have received a
certificate of a Senior Officer of TELUS so certifying to the Lenders.
(8) Financial Statements. The Administration Agent shall have received
the most recent annual audited financial statements of TELUS, together
with a Compliance Certificate as at December 31, 2006 confirming
compliance with section 8.2(3).
(9) Fees. The Administration Agent and the Lenders shall have received
payment of all fees and all reimbursable expenses then due.
(10) Ratings. The Administration Agent shall have received particulars
of the Ratings, if any, certified by a Senior Officer of TELUS,
failing which the Applicable Margin shall be determined in accordance
with clause (a) of the definition thereof.
(11) Opinions. The Administration Agent shall have received an opinion
of counsel to the Borrowers substantially in the form of schedule 8
annexed hereto and shall have received the favourable opinion of
Lenders' Counsel in form and substance satisfactory to the
Administration Agent with respect to the matters covered by the
aforementioned opinion and such other matters as the Administration
Agent shall reasonably request.
(12) Existing Facilities. All commitments under the 2005 Credit
Agreement shall have been terminated or shall concurrently be
terminated.
(13) Other. The Administration Agent shall have received such
supporting and other certificates and documentation as the Lenders may
reasonably request.
6.2 General Conditions for Accommodations. The Borrowers shall not be entitled
to any Accommodations (other than by Conversion or Rollover) after the
Closing Date unless and until the conditions precedent set forth in this
section 6.2 have been satisfied, fulfilled or otherwise met to the
satisfaction of the Lenders.
(1) Documents. The Credit Facility Documents (other than Bankers'
Acceptances and Letters of Credit yet to be issued) shall have been
executed and delivered to the Administration Agent.
(2) Representations and Warranties. All of the representations and
warranties contained herein or in any other Credit Facility Document
shall be true and correct in all material respects on and as of such
date as though made on and as of such date (unless expressly stated to
be made as of the Closing Date or some other specified date) and an
authorized officer of TELUS shall so certify to the Lenders in the
applicable Accommodation Request.
(3) No Default. No Default or Event of Default shall have occurred and
be continuing and the Administration Agent shall have received a
certificate of an authorized officer of TELUS so certifying to the
Lenders.
(4) Other. The Lenders shall have received such supporting and other
certificates and documentation as the Lenders may reasonably request.
6.3 Conversions and Rollovers. The obligation of the Lenders to make any
Accommodation by Conversion or Rollover shall be subject to the condition
precedent that no Default or Event of Default shall have occurred and be
continuing, and an authorized officer of TELUS shall so certify to the
Lenders in the applicable Accommodation Request.
6.4 Deemed Representation. Each of the giving of any Accommodation Request
and the acceptance or use by a Borrower of the proceeds of any
Accommodation shall be deemed to constitute a representation and warranty
by such Borrower that, on the date of such Accommodation Request and on
the date of any Accommodation being provided and after giving effect
thereto, the applicable conditions precedent set forth in this Article 6
shall have been satisfied, fulfilled or otherwise met.
6.5 Conditions Solely for the Benefit of the Lenders. All conditions
precedent to the entitlement of the Borrowers to any Accommodations
hereunder are solely for the benefit of the Lenders, and no other person
shall have standing to require satisfaction or fulfilment of any condition
precedent or that it be otherwise met and no other person shall be deemed
to be a beneficiary of any such condition, any and all of which may be
freely waived in whole or in part by the Lenders at any time the Lenders
deem it advisable to do so in their sole discretion.
6.6 No Waiver. The making of any Accommodations without one or more of the
conditions precedent set forth in this Article 6 having been satisfied,
fulfilled or otherwise met shall not constitute a waiver by the Lenders of
any such condition, and the Lenders reserve the right to require that each
such condition be satisfied, fulfilled or otherwise met prior to the
making of any subsequent Accommodations.
6.7 Final Date for Initial Accommodation. In the event that the conditions
precedent set forth in section 6.1 have not been satisfied, fulfilled or
otherwise met prior to the close of business of the Administration Agent
in Toronto on March 30, 2007, all obligations of the Lenders hereunder
shall forthwith terminate without the necessity of any notice to the
Borrowers or any other person.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Each Borrower (i) represents and warrants to the Lenders as set forth in this
Article 7 (except that the representations and warranties in sections 7.6, 7.7
and 7.9 shall be made by TELUS only, and the representation and warranty made
by TCI in section 7.10 shall relate to TCI only), (ii) acknowledges that the
Lenders are relying thereon in entering into this agreement and providing
Accommodations from time to time, (iii) agrees that no investigation at any
time made by or on behalf of the Lenders shall diminish in any respect
whatsoever their right to rely thereon, and (iv) agrees that all
representations and warranties shall be valid and effective as of the date when
given or deemed to have been given and to such extent shall survive the
execution and delivery of this agreement and the provision of Accommodations
from time to time.
7.1 Existence. Such Borrower and each Material Subsidiary of such Borrower
is a person duly incorporated or otherwise formed and is validly
subsisting and in good standing under the laws of its jurisdiction of
formation, and is duly qualified to do business in all jurisdictions where
the failure to so qualify would reasonably be expected to have a Material
Adverse Effect.
7.2 Authority. Such Borrower has full corporate right, power and authority
to enter into, and perform its obligations under each Credit Facility
Document to which it is or will be a party, and such Borrower and each
Material Subsidiary of such Borrower has full corporate or partnership
power and authority to own and operate its properties and to carry on its
business as now conducted or as contemplated to be conducted.
7.3 Authorization, Governmental Approvals, etc. As at the Closing Date,
the execution and delivery of this agreement and each other Credit
Facility Document to which it is or will be a party, and the performance
by it of its obligations hereunder and thereunder, have been duly
authorized by all necessary corporate action on the part of such Borrower,
and no Permit under any applicable Law, and no registration,
qualification, designation, declaration or filing with any Official Body
having jurisdiction over it, is or was necessary therefor or to preserve
the benefit thereof to the Lenders except as has heretofore been effected
or obtained.
7.4 Enforceability. This agreement has been duly executed and delivered by
such Borrower and constitutes, and each other Credit Facility Document to
which it is or will be a party and each other document hereby or thereby
contemplated when executed by it will constitute, its legal, valid and
binding obligation, enforceable against it in accordance with its terms,
subject to such qualifications as may be set forth in the opinion of
counsel to the Borrowers delivered pursuant to section 6.1(11).
7.5 No Breach. The execution and delivery by such Borrower of each Credit
Facility Document to which it is or will be a party and each other
document hereby or thereby contemplated and the performance by it of its
obligations hereunder and thereunder do not and will not:
(a) conflict with or result in a breach of any of the terms, conditions
or provisions of:
(i) its charter documents or by-laws;
(ii) any Law;
(iii) any material contractual restriction binding on or affecting
it or its properties; or
(iv) any material writ, judgment, injunction, determination or award
which is binding on it; or
(b) result in, or require or permit:
(i) the imposition of any Lien (other than Permitted Liens) on or
with respect to any properties now owned or hereafter acquired
by it; or
(ii) the acceleration of the maturity of any of its Debt under any
contractual provision binding on or affecting it.
7.6 Subsidiaries. The only Material Subsidiaries of TELUS are as set forth
in schedule 4 annexed hereto. TELUS owns on the date hereof, and will own
on the Closing Date, legally and beneficially (directly or indirectly) the
respective portions of the outstanding shares in the capital of the
Material Subsidiaries as shown in schedule 4 annexed hereto.
Save as set forth in schedule 4 annexed hereto and save for statutory
pre-emptive rights, no person (other than TELUS or a wholly-owned
subsidiary of TELUS) has any agreement or option, or right or privilege
(whether by law, pre-emptive or contractual) capable of becoming an
agreement or option, for the purchase of shares in the capital of any
Material Subsidiary. Each of the representations and warranties in this
section 7.6 is made as of the Closing Date.
7.7 Compliance. Except as otherwise disclosed in writing to the Lenders
prior to the Closing Date:
(a) no Default or Event of Default has occurred and is continuing as at
the Closing Date; and
(b) as at the Closing Date, neither such Borrower nor any of its
Material Subsidiaries is in breach or default, or is aware of any
event or circumstance which, but for the passage of time or the
giving of notice or both, would constitute a breach or default:
(i) under any contract or agreement to which it is a party or by
which it is bound (nor is it aware of any breach or default by
any other party thereunder); or
(ii) under any Law (including any Environmental Law) by which it is
bound;
where such breach or default has had or would reasonably be expected
to have a Material Adverse Effect.
7.8 Financial Statements. The audited consolidated financial statements of
TELUS as of and for the year ended December 31, 2006, copies of which have
been delivered to the Administration Agent, were prepared in accordance
with GAAP and as at the Closing Date present fairly, as at the date
thereof, the consolidated financial position of TELUS.
7.9 Material Adverse Effect. As at the Closing Date, there does not exist
and there has not occurred since December 31, 2006 any change (or any
condition, event or development involving a prospective change) in the
assets, properties, operations or condition, financial or otherwise, of
either TELUS or the Material Subsidiaries, which would reasonably be
expected to have a Material Adverse Effect.
7.10 Pari Passu. The payment Obligations of each of TELUS and TCI under
this agreement and each other Credit Facility Document to which it is a
party rank at least pari passu in right of payment with all of such
person's other unsecured and unsubordinated indebtedness, other than any
such indebtedness which is preferred by mandatory provisions of applicable
Law.
ARTICLE 8
COVENANTS
8.1 Affirmative Covenants. Until the Obligations are paid and satisfied in
full and this agreement has been terminated, and in addition to any other
covenants herein set forth, each Borrower (save as expressly set forth
below as applying only to TELUS or TCI) covenants as set forth in this
section 8.1.
(1) Maintain Existence. It will do all things necessary (a) to
maintain its corporate existence, and (b) to carry out its businesses
in a proper and efficient manner in like manner as a prudent operator
of similar businesses, including obtaining and maintaining in full
force and effect all Permits required for the conduct of its
businesses, and shall cause each of its Material Subsidiaries to do
so, except to the extent that failure to do so has not had, and would
not reasonably be expected to have, a Material Adverse Effect;
provided that, in the case of a Material Subsidiary that is a
partnership, the foregoing covenant to maintain its corporate
existence shall be construed as a covenant to maintain its partnership
existence.
(2) Compliance with Laws, etc. It will comply with all applicable Laws
(including Environmental Laws) and Permits and do all things necessary
to obtain, promptly renew and maintain in good standing from time to
time all Permits and duly observe all valid requirements of any
Official Body (including those requirements respecting the protection
of the environment, Release of Hazardous Substances, and occupational
health and safety), and shall cause each of its Material Subsidiaries
to do so, except to the extent that failure to do so has not had, and
would not reasonably be expected to have, a Material Adverse Effect.
(3) Payment of Taxes and Claims. It will file as and when required by
applicable Law all Tax returns (except to the extent that failure to
do so has not had, and would not reasonably be expected to have, a
Material Adverse Effect) and will pay and discharge before the same
shall become delinquent (i) all Taxes imposed upon it or upon its
property, and (ii) all lawful claims (including claims for labour,
materials, supplies or services) which, if unpaid, might become a Lien
upon its property except in each case any such Tax or claim which is
being contested in good faith and by proper proceedings and for which
adequate reserves have been maintained and no Liens (except Permitted
Liens) have attached, and shall cause each of its Material
Subsidiaries to do so.
(4) Insurance. TELUS shall insure and keep insured the property of the
Borrowers and the Material Subsidiaries, which is of an insurable
nature, against such risks, in such amount and in such manner as is
customary and prudent in the case of corporations, similarly situated
and operating generally similar property, and with such reputable
insurance companies or associations as it may select; provided that
the Borrowers and the Material Subsidiaries may from time to time
adopt other methods or plans of protection, including self-insurance,
against risks in substitution or partial substitution for the
aforesaid insurance.
(5) Keeping of Books. It will keep proper books of record and account,
in which full and correct entries shall be made of all financial
transactions and its assets and business in accordance with GAAP, and
shall cause each of its Material Subsidiaries to do so.
(6) Pay Obligations to Lenders and Perform Other Covenants. It will
make full and timely payment of the Obligations owed by it, whether
now existing or hereafter arising, and will duly comply with all the
terms and covenants contained in each of the Credit Facility Documents
to which it is from time to time a party, all at the times and places
and in the manner set forth therein.
(7) Use of Proceeds. It will use the proceeds of all Accommodations
made available to it for the purposes set forth in section 2.1(2)
(including the payment of commercial paper).
(8) Financial and Other Reporting. TELUS will deliver to the
Administration Agent:
(a) within 120 days after the end of each Financial Year, a copy of
the annual audited consolidated financial statements of each of
TELUS and TCI prepared in accordance with GAAP;
(b) within 60 days after the end of the first three Financial
Quarters of the Financial Year, a copy of the unaudited
consolidated financial statements of each of TELUS and TCI prepared
in accordance with GAAP, certified by a Senior Officer of TELUS or
TCI, as the case may be; and
(c) with each of the financial statements in (a) and (b) above, a
Compliance Certificate signed by a Senior Officer of TELUS.
In addition, in the event that any financial statement or other
information delivered hereunder indicates that a subsidiary of TELUS has
become a Material Subsidiary, TELUS shall expressly draw same to the
attention of the Administration Agent and, within 20 Business Days
following delivery of such financial statement or other information,
TELUS shall deliver to the Administration Agent the documents referred
to in section 6.1(2) and (5).
(9) Notice of Certain Events. TELUS will promptly notify the
Administration Agent in writing of:
(a) any Default or Event of Default;
(b) a decision (for whatever reason) by an Agency to cease
providing a Rating, any change in a Rating by either Agency, or any
new such Rating; or
(c) prior to completion thereof, any transaction whereby a Material
Subsidiary will cease to be a subsidiary of TELUS.
(10) Environmental Indemnity. It will indemnify and hold harmless the
Administration Agent and each Lender and their respective directors,
officers, employees, agents and representatives from and against any
and all third party liabilities, claims, demands, actions and causes
of action, fines and other penal or administrative sanctions suffered
by the indemnitees arising directly or indirectly out of any breach of
any Environmental Law, or any environmental hazards existing, or any
environmental pollution occurring, at any time relating to the assets
or properties of such Borrower or any of its Material Subsidiaries.
(11) Further Assurances. It will at its cost and expense, upon request
of the Administration Agent, duly execute and deliver, or cause to be
duly executed and delivered, to the Administration Agent such further
instruments and do and cause to be done such further acts as may be
necessary or proper in the reasonable opinion of the Administration
Agent to carry out more effectually the provisions and purposes of
this agreement and the other Credit Facility Documents.
8.2 Negative Covenants. Until the Obligations are paid and satisfied in
full and this agreement has been terminated, and in addition to any other
covenants herein set forth, each Borrower (save as expressly set forth
below as applying only to TELUS or TCI) covenants and agrees that it will
not take any of the actions set forth in this section 8.2 or permit or
suffer same to occur without the prior written consent of the Lenders
pursuant to section 12.2.
(1) Liens. It will not, and will not permit any of its Material
Subsidiaries to, create, incur or otherwise permit to exist any Lien on
any of its assets, other than Permitted Liens.
(2) Merger, etc. Except for Permitted Mergers, it will not, and will not
permit any of its Material Subsidiaries to, merge, consolidate or
amalgamate with or into, or sell, convey, transfer, lease or otherwise
dispose of (in one transaction or a series of transactions) all or
substantially all of its assets to, any other person.
(3) Financial Tests. TELUS will not:
(a) permit its Leverage Ratio to exceed 4.0:1 at the end of any
Financial Quarter; or
(b) permit its Coverage Ratio to be less than 2.0:1 at the end of
any Financial Quarter.
(4) Debt. TELUS will not permit any of its Material Subsidiaries at any
time to create, incur or otherwise permit to exist, or otherwise be
obligated in respect of, any Indebtedness for Borrowed Moneys (but
excluding in such calculation all Excluded Debt) if the effect thereof
is that the aggregate principal amount of all Indebtedness for Borrowed
Moneys of all Material Subsidiaries shall exceed 15% of Net Tangible
Assets at such time.
(5) Sale and Lease-Back Transactions. Neither it nor any of its Material
Subsidiaries shall enter into any Sale and Lease-Back Transaction
unless:
(a) such Sale and Lease-Back Transaction qualifies as a Permitted
Lien other than under paragraph (s) or (w) of the definition of
Permitted Lien; or
(b) such Sale and Lease-Back Transaction is not otherwise permitted
under paragraph (a) but such Borrower or Material Subsidiary would
be entitled, in the manner described in such paragraph (s), to
incur Debt secured by a Lien on the applicable Principal Property
at least equal in amount to the Attributable Debt in respect of
such Sale and Lease-Back Transaction; or
(c) such Borrower or Material Subsidiary shall apply or cause to be
applied, in the case of a sale or transfer for cash, an amount
equal to the greater of the fair market value of the Principal
Property sold or transferred and leased back pursuant to such Sale
and Lease-Back Transaction or the net proceeds of such Sale and
Lease-Back Transaction and, in the case of a sale or transfer
otherwise than for cash, an amount equal to the fair market value
of the Principal Property sold or transferred and leased back
pursuant to such Sale and Lease-Back Transaction, to (x) the
retirement (other than any mandatory retirement), within 180 days
after the effective date of such Sale and Lease-Back Transaction,
of Debt of a Borrower ranking on a parity with the Obligations and
owing to a person other than a Borrower or any affiliate of a
Borrower, or (y) the purchase, construction or improvement of real
property or personal property used by a Borrower or Material
Subsidiary in the ordinary course of business.
8.3 Administration Agent May Perform Covenants. If a Borrower or any Material
Subsidiary shall fail to perform or observe any covenant on its part
contained herein or in any other Credit Facility Document, the
Administration Agent may, in its sole discretion acting reasonably, and
shall upon the instructions of the Majority Lenders, in either case subject
to it having been indemnified to its satisfaction, perform (or cause to be
performed), any of the said covenants capable of being performed by the
Administration Agent and, if any such covenant requires the payment or
expenditure of money, the Administration Agent may make such payment or
expenditures with its own funds or with money borrowed for that purpose
(but the Administration Agent shall be under no obligation to do so);
provided that the Administration Agent shall first have provided written
notice of its intention to the Borrowers and a reasonable opportunity (not
to exceed 20 days, or such longer period as the Lenders shall approve) to
cure the failure. All amounts paid by the Administration Agent pursuant to
this section 8.3 shall be repaid by the Borrowers to the Administration
Agent on demand therefor, and shall form part of the Obligations. No
payment or performance under this section 8.3 shall relieve the Borrowers
from any Event of Default.
ARTICLE 9
CHANGES IN CIRCUMSTANCES
9.1 Illegality. If the enactment of any applicable Law, or any change
therein or in the interpretation or application thereof by any Official
Body or compliance by a Lender with any guideline, official directive,
request or direction (whether or not having the force of Law) of any
Official Body, hereafter makes it unlawful or impossible for a Lender to
make, fund or maintain any type of Accommodation or to give effect to its
obligations in respect of such type of Accommodation, such Lender may, by
written notice thereof to the Borrowers and to the Administration Agent,
declare its obligations under this agreement in respect of such type of
Accommodation to be terminated, whereupon the same shall forthwith
terminate, and the Borrowers shall within the time required by such Law
(or at the end of such longer period as such Lender at its discretion has
agreed) repay or effect a Conversion of the Principal Outstanding in
respect of such type of Accommodation from such Lender (without reducing
or prepaying the Commitment(s) of any other Lender(s)), and shall pay all
accrued interest and fees payable hereunder and all Increased Costs
incurred in connection with the termination or Conversion of such type of
Accommodation.
In the foregoing circumstances, TELUS, in consultation with the
Administration Agent and the affected Lender, may arrange for one or more
other persons (in this section 9.1, the "assuming Lender") reasonably
satisfactory to TELUS and the Administration Agent to assume all or a
portion of the relevant Commitments and acquire the outstanding
Accommodations and other rights and interests of the affected Lender
hereunder. The assuming Lender and affected Lender shall execute all such
documents as may be reasonably required by the Administration Agent and
TELUS to effect such assumption and acquisition.
9.2 Circumstances Requiring Different Pricing. If, on or before any date
on which an interest rate is to be determined on the basis of LIBOR,
either:
(a) the Administration Agent determines that it will not be
possible to determine LIBOR for the applicable Interest Period or
in the applicable amounts; or
(b) the Administration Agent determines or receives notice from a
Lender that LIBOR will not adequately reflect the cost of making,
funding or maintaining LIBOR Advances for the applicable Interest
Period (including, for greater certainty, any such circumstance
arising by virtue of the imposition, or increase in the applicable
rate, of any Tax other than an Excluded Tax);
then the Administration Agent shall forthwith give notice of such event
to the Borrowers and each Lender, whereupon the obligations of the
Lenders to make LIBOR Advances to the Borrowers shall be suspended until
the Administration Agent gives notice to the Borrowers and the Lenders
that the circumstances giving rise to such determination no longer
exist.
9.3 Increased Costs. If:
(a) the enactment or amendment of any Law or any change in the
interpretation or application thereof by any Official Body
(including with respect to any applicable Taxes other than Excluded
Taxes); or
(b) compliance by any Lender with any amendment or change to any
existing directive, request or requirement (whether or not having
the force of Law) of any Official Body, or with any new such
directive, request or requirement of any Official Body;
shall have the effect of:
(c) increasing the cost to such Lender of performing its
obligations under this agreement or in respect of any
Accommodation, including the costs of maintaining any capital,
reserve, deemed reserve or special deposit requirements with
respect to this agreement or any Accommodation or with respect to
its obligations hereunder or thereunder or with respect to assets
or deposits that directly or indirectly support such obligations;
(d) requiring such Lender to maintain or allocate any capital
(including a requirement affecting such Lender's allocation of
capital to its obligations) or additional capital in respect of its
obligations under this agreement or in respect of any Accommodation
or otherwise reducing the effective return to such Lender under
this agreement or in respect of any Accommodation or on its total
capital as a result of entering into this agreement or making any
Accommodation;
(e) reducing any amount payable to it by or in an amount it deems
material (other than, for greater certainty, a reduction resulting
from a higher rate of income or capital Tax or other special Tax
relating to such Lender's income or capital and other than any
other Excluded Taxes); or
(f) causing such Lender to make any payment or to forgo any return
on or calculated by reference to any amount received or receivable
by such Lender under this agreement or in respect of any
Accommodation;
such Lender may give notice to the Borrowers (with a copy to the
Administration Agent) specifying the nature of the event giving rise to
such additional cost, reduction, payment or forgone return and the
Borrowers shall promptly pay such amounts as such Lender may specify to be
necessary to compensate it for any such additional cost, reduction,
payment or forgone return. A certificate setting out, in reasonable
detail, the amount of any such additional cost, reduction, payment or
forgone return, submitted in good faith by such Lender to the Borrowers,
shall be conclusive and binding for all purposes absent demonstrated
error.
If such circumstances continue in effect for 60 consecutive days, on
request from TELUS, TELUS shall use its reasonable efforts, in
consultation with the Administration Agent and the affected Lender, to
arrange for one or more other persons (in this section 9.3, the "assuming
Lender") reasonably satisfactory to TELUS and the Administration Agent to
assume all or a portion of the relevant Commitments and acquire the
outstanding Accommodations and other rights and interests of the affected
Lender hereunder. The assuming Lender and affected Lender shall execute
all such documents as may be reasonably required by the Administration
Agent and TELUS to effect such assumption and acquisition. Failing such
assumption and acquisition, the Borrower may effect a prepayment and
cancellation of the relevant Commitments of the affected Lender (without
reducing or prepaying the Commitment(s) of any other Lender(s)).
9.4 Indemnification.
(1) Matching Funds. The relevant Borrower shall promptly pay to each
Lender any amounts required to compensate such Lender for any breakage
or similar cost, loss, cost of redeploying funds or other cost or
expense suffered or incurred by such Lender as a result of:
(a) any payment being made by such Borrower in respect of a LIBOR
Advance or a Bankers' Acceptance (due to acceleration hereunder or
a mandatory repayment or prepayment of principal or for any other
reason) on a day other than the last day of an Interest Period or
the maturity date applicable thereto; provided that, where the
event giving rise to such payment is a mandatory repayment or
prepayment, such Borrower may at its option instead deposit the
amount of the repayment or prepayment to a cash collateral account
pending expiry of the existing Interest Period or (as the case may
be) maturity of outstanding Bankers Acceptances, and the monies in
such cash collateral account shall be invested in Cash Equivalents
and held as security to be applied by the Administration Agent to
the required repayment or prepayment on the expiry of such Interest
Period or maturity of such Bankers Acceptance;
(b) such Borrower's failure to give Notice in the manner and at the
times required hereunder; or
(c) the failure of such Borrower to fulfil or honour, before the
date specified for any Accommodation, the applicable conditions set
forth in Article 6 or to accept an Accommodation after delivery of
an Accommodation Request in the manner and at the time specified in
such Accommodation Request.
A certificate of such Lender submitted to the relevant Borrower (with
a copy to the Administration Agent) as to the amount necessary to so
compensate such Lender shall be conclusive evidence, absent
demonstrated error, of the amount due from such Borrower to such Lender.
(2) General. Without limiting section 8.1(10), each Borrower agrees to
indemnify the Administration Agent, each Lender and their respective
affiliates, and the directors, officers and employees of each of them,
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the indemnitees or any of them,
related to or arising out of the transactions contemplated hereunder
or under any other Credit Facility Document; provided that no amount
shall be payable under this section 9.4(2) to the extent that same
arises out of the gross negligence or wilful misconduct of an
indemnified person, or out of a breach by it of the terms of this
agreement or any other Credit Facility Document.
9.5 Taxes, Costs, Etc.
(1) General. Any and all payments by a Borrower under this agreement
or any other Credit Facility Document shall be made free and clear of
and without deduction or withholding for Taxes unless such Taxes are
required by Law to be deducted or withheld. For greater certainty, a
Borrower shall not be required to indemnify a Lender in respect of
Taxes or Excluded Taxes payable to any Official Body in Canada which
are levied, withheld, deducted or paid on payments to such Lender by
reason of the fact that such Lender is a non-resident of Canada within
the meaning of the Income Tax Act (Canada).
(2) Pay Taxes. Each Borrower shall pay all Taxes (for greater
certainty, excluding Excluded Taxes) which arise from any payment made
by it hereunder or under any other Credit Facility Document or from
the execution, delivery or registration of, or otherwise with respect
to, this agreement or such other Credit Facility Document.
(3) Evidence of Payment. Within 30 days after the date of any payment
of Taxes, the relevant Borrower will furnish to the relevant Lender
the original or a certified copy of a receipt evidencing payment
thereof.
(4) Survival. Without prejudice to the survival of any other agreement
or obligation of the Borrowers hereunder or under any other Credit
Facility Document, the obligations of the Borrowers under this section
9.5 shall survive the payment and performance of the Obligations.
ARTICLE 10
EVENTS OF DEFAULT
10.1 Events of Default. Each of the events set forth in this section 10.1
shall constitute an "Event of Default".
(1) Payment. A Borrower shall fail:
(a) to pay the principal amount of any Advance or BA Equivalent
Loan when the same becomes due and payable;
(b) to reimburse any Lender in respect of any Bankers' Acceptance
or Letter of Credit, or pay the Face Amount thereof, when required
hereunder; or
(c) to pay any interest or fees hereunder when the same becomes due
and payable;
and in any such case under (b) or (c) such failure shall remain unremedied
for a period of five days.
(2) Representations and Warranties Incorrect. Any of the
representations or warranties made or deemed to have been made by a
Borrower in any Credit Facility Document shall prove to be or have
been incorrect in any material respect when made or deemed to have
been made.
(3) Failure to Perform Certain Covenants. A Borrower or a Material
Subsidiary (including TCC in the case of the TCC Guarantee) shall fail
to perform or observe any covenant contained in any Credit Facility
Document on its part to be performed or observed or otherwise
applicable to it; provided that, if such failure is capable of being
remedied, no Event of Default shall have occurred as a result thereof
unless and until such failure shall have remained unremedied for 30
days after the earlier of (i) written notice thereof given to the
Borrowers by the Administration Agent, and (ii) such time as a
Borrower or Material Subsidiary is aware of same.
(4) Debt. (a) A Borrower or Material Subsidiary fails to pay the
principal of any Debt (excluding the Obligations) which is outstanding
in an aggregate principal amount exceeding US$75 million (or the
Equivalent Amount in any other currency) when such amount becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) beyond any applicable grace period;
or (b) any other event occurs or condition exists (including a failure
to pay the premium or interest on such Debt) and continues after the
applicable grace period, if any, specified in any agreement or
instrument relating to any such Debt which is outstanding in an
aggregate principal amount exceeding US$75 million (or the Equivalent
Amount in any other currency) without waiver of such failure by the
holder of such Debt on or before the expiration of such period, as a
result of which such holder accelerates such Debt.
(5) Judgment. Any final judgment or order (subject to no further right
of appeal) for the payment of money aggregating in excess of US$75
million (or the Equivalent Amount in any other currency) shall be
rendered against a Borrower or Material Subsidiary in respect of which
enforcement proceedings have been commenced and such proceedings have
not been effectively stayed.
(6) Bankruptcy, etc. A Borrower or Material Subsidiary:
(a) becomes insolvent or generally unable to pay its debts as they become
due;
(b) admits in writing its inability to pay its debts generally or makes a
general assignment for the benefit of creditors;
(c) institutes or has instituted against it any proceeding involving or
affecting its creditors seeking (x) to adjudicate it a bankrupt or
insolvent, (y) liquidation, winding-up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency, reorganization or
relief of debtors including any plan of compromise or arrangement or
other corporate proceeding relating thereto, or (z) the entry of an
order for relief or the appointment of a receiver, trustee or other
similar official for it or for any material portion of its properties
and assets, and in the case of any such proceeding instituted against
it (but not instituted by it), either such person fails to diligently
and actively oppose such proceeding, or any of the relief sought in
such proceeding (including the entry of any order for relief against
it or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its properties
and assets) is given; or
(d) takes any corporate or partnership action to authorize any of the
above actions.
(7) Execution. Assets of a Borrower or Material Subsidiary are
attached, executed, sequestered or distrained upon or become subject
to any order of a court or other process and such attachment,
execution, sequestration, distraint, order or process (i) relates to
claims in the aggregate in excess of US$75 million (or the Equivalent
Amount in another currency), and (ii) such Borrower or Material
Subsidiary shall not discharge the same or provide for its discharge
in accordance with its terms, or procure a stay of execution thereof,
or deposit with the Administration Agent cash collateral or other
security satisfactory to the Majority Lenders in the amount of the
claim, within 60 days from the date of entry thereof.
(8) Control Event. A Control Event.
10.2 Effect.
(1) General. Upon the occurrence and continuance of an Event of Default,
except as provided in section 10.2(2), the Administration Agent:
(a) shall, at the request of the Majority Lenders, by notice to the
Borrowers cancel all obligations of the Lenders in respect of the
Commitments (whereupon no further Accommodations may be made and
any Accommodation Request given with respect to an Accommodation
occurring on or after the date of such notice or request shall
cease to have effect); and
(b) shall, at the request of the Majority Lenders, by notice to the
Borrowers declare the Obligations to be forthwith due and payable,
without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrowers.
(2) Specific Defaults. If any Event of Default specified in section
10.1(6) shall occur with respect to a Borrower, then all obligations
of the Lenders in respect of the Commitments shall be automatically
cancelled and the Obligations shall be forthwith due and payable, all
as if the request and notice specified in each of sections 10.2(1)(a)
and 10.2(1)(b) had been received and given by the Administration
Agent.
(3) Enforcement. Upon the occurrence of an Event of Default and
acceleration of the Obligations, the Administration Agent may, and
shall at the request of the Majority Lenders, commence such legal
action or proceedings as it may deem expedient, all without any
additional notice, presentation, demand, protest, notice of dishonour,
or any other action, notice of all of which the Borrowers hereby
expressly waive to the extent permitted by law. The rights and
remedies of the Administration Agent and the Lenders hereunder and
under the other Credit Facility Documents are cumulative and are in
addition to and not in substitution for any other rights or remedies
provided by Law; provided that nothing herein contained shall permit
any Lender to take any steps which, pursuant to this agreement, may
only be undertaken by or with the consent of all Lenders or the
Majority Lenders.
10.3 Right of Set-Off. In addition to any rights now or hereafter
granted under applicable Law and not by way of limitation of any such
rights, after the occurrence of an Event of Default and acceleration of
the Obligations, except where there is an agreement to the contrary,
each Lender is hereby authorized by each Borrower at any time or from
time to time without notice to such Borrower or to any other person, any
such notice being hereby expressly waived to the extent permitted by
Law, to set off and to appropriate and to apply any and all deposits
(general or special), time or demand, in each case whether matured or
unmatured (and any other indebtedness) at any time held or owing by such
Lender to or for the credit or account of such Borrower against and on
account of the Obligations of such Borrower to such Lender, including
all claims of any nature or description arising out of or connected with
this agreement or any of the other Credit Facility Documents, and
although such obligations and liabilities or any of them shall be
contingent and unmatured.
10.4 Currency Conversion After Acceleration. At any time following the
occurrence of an Event of Default and the acceleration of the
Obligations, each Lender shall be entitled to convert, with two Business
Days' prior notice to the Borrowers, its unpaid and outstanding US
Dollar Advances, or any of them, to Prime Rate Advances. Any such
conversion shall be calculated so that the resulting Prime Rate Advances
shall be the Equivalent Amount in Cdn. Dollars on the date of conversion
of the amount of US Dollars so converted. Any accrued and unpaid
interest denominated in US Dollars at the time of any such conversion
shall be similarly converted to Cdn. Dollars, and such Prime Rate
Advances and accrued and unpaid interest thereon shall thereafter bear
interest in accordance with Article 3.
ARTICLE 11
THE ADMINISTRATION AGENT AND THE LENDERS
11.1 Authorization and Action. Each Lender hereby appoints and
authorizes the Administration Agent to take such action as
Administration Agent on its behalf and to exercise such powers under
this agreement and the other Credit Facility Documents as are delegated
to the Administration Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. As to any matters
not expressly provided for by this agreement or such other Credit
Facility Documents, the Administration Agent shall not be required to
exercise any discretion or take any action, but shall be required to act
or to refrain from acting (and shall be fully indemnified and protected
in so acting or refraining from acting) upon the instructions of the
Majority Lenders and such instructions (and indemnification) shall be
binding upon all Lenders; provided that the Administration Agent shall
not be required to take any action which exposes it to personal
liability or which is contrary to this agreement or such other Credit
Facility Documents or applicable Law.
11.2 Duties and Obligations. The duties and obligations of the
Administration Agent hereunder shall be mechanical and administrative in
nature, and the Administration Agent shall not have by reason of this
agreement or any other Credit Facility Document any fiduciary
relationship or duty with or to any Lender.
Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable to any Lender for any action taken
or omitted to be taken by it or them under or in connection with this
agreement or any other Credit Facility Document except for its or their
own gross negligence or wilful misconduct. Without limiting the
generality of the foregoing, the Administration Agent:
(a) may treat any Lender as the payee of amounts attributable to
such Lender's Commitment unless and until the Administration Agent
receives written notice of the assignment thereof signed by such
Lender and the Administration Agent receives the written agreement
of the assignee that such assignee is bound hereby as if it had
been an original Lender party hereto, in each case in form
satisfactory to the Administration Agent and otherwise in
accordance with section 12.7;
(b) may consult with legal counsel (including counsel for the
Borrowers), independent chartered accountants and other experts
selected by it and shall not be liable to the Lenders for any
action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts;
(c) shall incur no liability under or in respect of this agreement
or any other Credit Facility Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be
by fax, electronic communication, telegram, cable, facsimile or
similar means of recorded communication) believed by it to be
genuine and signed or sent by the proper party or parties or by
acting upon any representation or warranty of the Borrowers made or
deemed to be made hereunder or thereunder;
(d) may assume that no Default or Event of Default has occurred and
is continuing unless it has actual knowledge to the contrary; and
(e) may rely as to any matters of fact which might reasonably be
expected to be within the knowledge of any person upon a
certificate signed by or on behalf of such person.
Further, the Administration Agent:
(f) neither makes any warranty or representation to any Lender nor
shall be responsible to any Lender for the accuracy or completeness
of the documents, information or financial data made available to
the Lenders in connection with the negotiation of this agreement,
or for any statements, warranties or representations (whether
written or oral) made in or in connection with this agreement or
any other Credit Facility Document;
(g) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of this agreement or any other Credit Facility Document
on the part of the Borrowers or any other person or to inspect any
assets (including books and records); and
(h) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or
value of this agreement or any other Credit Facility Document.
The Administration Agent shall promptly distribute to the Lenders
copies of all material received from the Borrowers in compliance
with the Borrowers' reporting obligations hereunder.
11.3 Administration Agent and Affiliates. With respect to its Commitment
and Accommodations made or provided and to be made or provided by it,
the Administration Agent, which is also a Lender, shall have the same
rights and powers under this agreement and every other Credit Facility
Document as any other Lender and may exercise the same as though it were
not the Administration Agent; and the terms "Lender" and "Lenders"
shall, unless otherwise expressly indicated, include the Administration
Agent in its capacity as Lender. Each Lender (including the
Administration Agent) and its affiliates may accept deposits from, lend
money to and generally engage in any kind of business with the Borrowers
and their affiliates, or any corporation or other entity owned or
controlled by such persons, and any person which may do business with
such persons, all as if it were not a party hereto and without any duty
to account therefor to any Lender; provided that nothing in this section
11.3 shall affect in any manner whatsoever any covenant or other
obligation on the part of the Borrowers or any other person to be
observed or performed under this agreement or any other Credit Facility
Document.
11.4 Lender Credit Decision. It is understood and agreed by each Lender
that it has itself been, and will continue to be, solely responsible for
making its own independent appraisal of and investigations into the
financial condition, creditworthiness, condition, affairs, status and
nature of the Borrowers and their affiliates. Accordingly, each Lender
confirms to the Administration Agent and each other Lender that it has
not relied, and will not hereafter rely, on the Administration Agent or
any other Lender:
(a) to check or inquire on its behalf into the adequacy, accuracy
or completeness of any information provided by or on behalf of the
Borrowers or any affiliate under or in connection with this
agreement or any other Credit Facility Document or the transactions
herein or therein contemplated (whether or not such information has
been or is hereafter distributed to such Lender by the
Administration Agent or other Lender); or
(b) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of the Borrowers or any affiliate.
Each Lender acknowledges that a copy of this agreement has been made
available to it for its review and that it is satisfied with the form
and substance hereof.
11.5 Indemnifications. Each Lender shall indemnify the Administration
Agent, each affiliate thereof, and each respective director, officer,
and employee of the Administration Agent and of each such affiliate (to
the extent not reimbursed by the Borrowers), with all other Lenders pro
rata according to the respective amounts of their respective
Commitments, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Administration Agent or any
such affiliate, director, officer or employee in any way relating to or
arising out of this agreement or any other Credit Facility Document or
any action taken or omitted by the Administration Agent or any such
affiliate, director, officer or employee under this agreement or any
such other Credit Facility Document to the extent that the
Administration Agent or such affiliate, director, officer or employee is
not reimbursed for such expenses by the Borrowers; provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements resulting from the gross negligence or wilful
misconduct of an indemnitee. Without limiting the generality of the
foregoing, each Lender agrees to reimburse the Administration Agent and
each such affiliate, director, officer or employee promptly upon demand
for its share (determined rateably as aforesaid) of any out-of-pocket
expenses (including counsel fees) incurred by the indemnitee in
connection with the preservation of any rights of the Administration
Agent or the Lenders under, or the enforcement of, or legal advice in
respect of rights or responsibilities under, this agreement or any such
other Credit Facility Document, to the extent that the Administration
Agent or such affiliate, director, officer or employee is not reimbursed
for such expenses by the Borrowers.
11.6 Successor Administration Agent. The Administration Agent may, as
hereinafter provided, resign at any time by giving written notice
thereof to the Lenders and the Borrowers and may be removed at any time
with cause by the Majority Lenders. Upon any such resignation or
removal, the Lenders, after consultation with TELUS, shall have the
right to appoint a successor Administration Agent, which shall be a
Lender. If no successor Administration Agent shall have been so
appointed by the Lenders and shall have accepted such appointment within
30 days after the retiring Administration Agent's giving of notice of
resignation or the Lenders' removal of the retiring Administration
Agent, then the retiring Administration Agent shall on behalf of the
Lenders forthwith designate one of the Lenders the pro tem successor
Administration Agent, and such designated Lender shall act as
Administration Agent hereunder pending the appointment of its successor.
Upon the acceptance of any appointment as Administration Agent hereunder
by a successor Administration Agent, such successor Administration Agent
shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administration Agent, and
the retiring Administration Agent shall be discharged from any further
duties and obligations under this agreement. After any retiring
Administration Agent's resignation or removal hereunder as
Administration Agent, the provisions of this Article 11 shall enure to
its benefit as to any actions taken or omitted to be taken by it while
it was Administration Agent under this agreement.
11.7 Sub-Agent or Co-Agent. At any time or times, in order to comply
with any legal requirement in any province, state or other jurisdiction,
or to facilitate the taking by the Administration Agent of any action
provided for in any Credit Facility Document, the Administration Agent
may appoint one or more trust companies, chartered banks or other
persons (any of whom may, but need not be, a Lender) to act either as
co-agent or sub-agent, jointly with the Administration Agent or as a
separate agent or agents on behalf of the Lenders, with such powers and
authorities as the Administration Agent deems necessary for the
effective operation of the provisions of any Credit Facility Document.
In the discretion of the Administration Agent, any instrument or
agreement appointing any such co-agent or sub-agent may include
provisions for the protection of such co-agent or sub-agent similar to
but no broader than the provisions of this Article 11. Upon the
appointment of any such co-agent or sub-agent by the Administration
Agent, all references in this agreement and in all other Credit Facility
Documents to the Administration Agent shall thereafter be construed as
references to such co-agent or sub-agent to the extent necessary in
order to give effect to its powers, authorities and obligations.
11.8 Cash Collateral. To the extent that the Administration Agent is
from time to time in possession of cash collateral, it shall be entitled
to invest the same and all proceeds thereof in Cash Equivalents,
including Cash Equivalents issued by TD Bank.
ARTICLE 12
MISCELLANEOUS
12.1 Sharing of Payments; Records.
(1) The Swingline and Fronting Lender. Upon the occurrence of an Event
of Default, adjustments shall be made among the Lenders as set forth
in this section 12.1(1).
(a) Unless the Swingline Lender and the Majority Lenders agree
otherwise, if an Event of Default occurs, then the Swingline Lender
will promptly request the Administration Agent on behalf of TELUS
(and for this purpose the Swingline Lender is irrevocably
authorized by TELUS to do so) for a Borrowing by way of a Prime
Rate Advance or a Base Rate Advance (as applicable) from the
Lenders pursuant to Article 3 to repay to the Swingline Lender the
outstanding Swingline Advances. The Lenders are irrevocably
directed by TELUS to make any Prime Rate Advance or Base Rate
Advance (as applicable) if so requested by the Swingline Lender and
pay the proceeds thereof directly to the Administration Agent for
the account of the Swingline Lender. At all times thereafter the
commitment of the Swingline Lender to make Swingline Advances under
section 2.1(6) shall be terminated and the Lenders shall make such
adjusting payments amongst themselves in the manner contemplated by
section 12.1(2) as may be required to ensure their respective
participations in outstanding Advances under the Credit Facility
reflect their respective Commitments. If any Letter of Credit is
thereafter drawn upon which results in a payment by the Fronting
Lender thereunder (in this section 12.1(1), an "LC Payment"), the
Fronting Lender will promptly request the Administration Agent on
behalf of the relevant Borrower (and for this purpose the Fronting
Lender is irrevocably authorized by such Borrower to do so) for a
Borrowing by way of a Prime Rate Advance from the Lenders pursuant
to Article 3 to reimburse the Fronting Lender for such LC Payment
and the foregoing provisions of this section 12.1(1)(a) shall
equally apply to each such further Advance. Each Lender
unconditionally agrees to pay to the Administration Agent for the
account of the Swingline Lender or the Fronting Lender such
Lender's rateable portion of each Advance requested by the
Swingline Lender or the Fronting Lender on behalf of the relevant
Borrower to repay Swingline Advances or LC Payments made by the
Swingline Lender or the Fronting Lender.
(b) Except as provided in section 12.1(1)(d), the obligations of
each Lender under section 12.1(1)(a) are unconditional, shall not
be subject to any qualification or exception whatsoever and shall
be performed in accordance with the terms and conditions of this
agreement under all circumstances including:
(i) any lack of validity or enforceability of the obligations
of TELUS under section 2.1(6);
(ii) the occurrence of any Default or Event of Default or the
exercise of any rights by the Administration Agent under
section 10.2; and
(iii) the absence of any demand for payment being made, any
proof of claim being filed, any proceeding being commenced or
any judgment being obtained by the Swingline Lender or the
Fronting Lender against the relevant Borrower.
(c) If a Lender (a "Defaulting Lender") fails to make payment on
the due date therefor of any amount due from it for the account of
the Swingline Lender or the Fronting Lender pursuant to section
12.1(1)(a) (the balance thereof for the time being unpaid being
referred to in this section 12.1(1)(c) as an "overdue amount")
then, until the Swingline Lender or the Fronting Lender has
received payment of that amount (plus interest as provided below)
in full (and without in any way limiting the rights of the
Swingline Lender or the Fronting Lender in respect of such
failure):
(i) the Swingline Lender or the Fronting Lender shall be
entitled to receive any payment which the Defaulting Lender
would otherwise have been entitled to receive in respect of the
Credit Facility or otherwise in respect of any Credit Facility
Document; and
(ii) the overdue amount shall bear interest payable by the
Defaulting Lender to the Swingline Lender or the Fronting
Lender at the rate payable by the relevant Borrower in respect
of the Obligations which gave rise to such overdue amount.
(d) If for any reason an Advance may not be made pursuant to
section 12.1(1)(a) to reimburse the Swingline Lender or the
Fronting Lender as contemplated thereby, then promptly upon receipt
of notification of such fact from the Administration Agent, each
relevant Lender shall deliver to the Administration Agent for the
account of the Swingline Lender or the Fronting Lender in
immediately available funds the purchase price for such Lender's
participation interest in the relevant unreimbursed Swingline
Advances or LC Payments (including interest then accrued thereon
and unpaid by the relevant Borrower). Without duplication, each
Lender shall, upon demand by the Swingline Lender or the Fronting
Lender made to the Administration Agent, deliver to the
Administration Agent for the account of the Swingline Lender or the
Fronting Lender interest on such Lender's rateable portion from the
date of payment by the Swingline Lender or the Fronting Lender of
such unreimbursed Swingline Advances or LC Payments until the date
of delivery of such funds to the Swingline Lender or the Fronting
Lender by such Lender at a rate per annum equal to the Federal
Funds Rate (if reimbursement is to be made in US Dollars) or the
one month CDOR (if reimbursement is to be made in Canadian Dollars)
for such period. Such payment shall only, however, be made by the
Lenders in the event and to the extent the Swingline Lender or the
Fronting Lender has not been reimbursed in full by the relevant
Borrower for interest on the amount of such unreimbursed Swingline
Advances or LC Payments.
(e) The Swingline Lender or the Fronting Lender shall, forthwith
upon its receipt of any reimbursement (in whole or in part) by the
relevant Borrower for any unreimbursed Swingline Advances or LC
Payments in relation to which other Lenders have purchased a
participation interest pursuant to section 12.1(1)(d), or of any
other amount from such Borrower or any other person in respect of
such payment (other than pursuant to section 2.1(6)), transfer to
such other Lender such other Lender's rateable share of such
reimbursement or other amount. In the event that any receipt by the
Swingline Lender or the Fronting Lender of any reimbursement or
other amount is found to have been a transfer in fraud of creditors
or a preferential payment under any applicable insolvency
legislation or is otherwise required to be returned, such Lender
shall promptly return to the Swingline Lender or the Fronting
Lender any portion thereof previously transferred to it by the
Swingline Lender or the Fronting Lender, without interest to the
extent that interest is not payable by the Swingline Lender or the
Fronting Lender in connection therewith.
(2) Sharing. If:
(a) any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off pursuant
to section 10.3 or at law or equity, or otherwise) on account of
any Accommodation made by it (other than Increased Costs paid to
it) in excess of its rateable share of payments on account of such
Accommodation; or
(b) (without regard to outstanding Increased Costs) any Lender
shall at the time of acceleration of the Obligations have
outstanding Obligations which are less than its rateable share of
all outstanding Obligations;
then such Lender shall forthwith purchase from the other Lenders such
participations in the Accommodations made by such other Lenders as shall
be necessary to cause such purchasing Lender to share the excess payment
or be owed the outstanding Obligations rateably with such other Lenders.
In the case of paragraph (a) of this section 12.1(2), if all or any
portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each other Lender shall be
rescinded and each Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount
equal to such other Lender's rateable share (according to the proportion
that the amount such other Lender's required repayment bears to the total
amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total
amount so recovered.
Any Lender purchasing a participation from another Lender pursuant to
this section 12.1 may, to the fullest extent permitted by Law, exercise
all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.
(3) Records. The Principal Outstanding and C$ Equivalent Principal
Outstanding under the Credit Facility (or, if applicable, the TELUS
Portion and the TCI Portion), the unpaid interest accrued thereon, the
interest rate or rates applicable to any unpaid principal amounts, the
duration of such application, the date of acceptance or issue, Face
Amount and maturity of all Bankers' Acceptances and Letters of Credit
and the Commitments shall at all times be ascertained from the records
of the Administration Agent, which shall be conclusive absent
demonstrated error.
12.2 Amendments, etc.
(1) Amendments - General. Subject to section 12.2(2), no amendment or
waiver of any provision of this agreement or of any other Credit
Facility Document, nor any consent to any departure by a Borrower or
any affiliate herefrom or therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Majority Lenders
(or by the Administration Agent on their authorization), and then such
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
(2) Amendments - Unanimous. No instrument shall, unless in writing and
signed by all the Lenders (or by the Administration Agent on their
authorization):
(a) waive any of the conditions specified in Article 6;
(b) increase the Commitment of any Lender or subject any Lender to
any additional obligation;
(c) change the principal of, or interest on, or discount rate
applicable to any Accommodation or any fees hereunder;
(d) amend the Maturity Date or otherwise postpone any date fixed
for any payment of principal of, or interest on, any Accommodation
or any fees hereunder, or subordinate the Obligations or any
portion thereof to any Debt;
(e) amend the terms of section 8.2(3) or this section 12.2,
provided that any waiver of a breach of section 8.2(3) need only be
approved under section 12.2(1);
(f) amend the definition of "Majority Lenders"; or
(g) except as permitted by sections 2.3 or 8.2(2), permit a change
in a Borrower or an assignment or transfer of any of its rights or
obligations under any Credit Facility Document.
(3) Amendments - Administration Agent. No amendment, waiver or consent
shall, unless in writing and approved by the Administration Agent in
addition to the Majority Lenders, affect the rights or duties of the
Administration Agent under any Credit Facility Document.
(4) Fronting Lender. No amendment, waiver or consent shall, unless
approved by the Fronting Lender, affect the rights or obligations of
the Fronting Lender with respect to Letters of Credit.
(5) Swingline Lender. No amendment, waiver or consent shall, unless
approved by the Swingline Lender, affect the rights or obligations of
the Swingline Lender with respect to Swingline Advances.
(6) Other Approvals. For greater certainty, any approval of a person
specifically required by any of sections 12.2(3) to (5), inclusive,
shall be in addition to any other approval required by this agreement.
12.3 Notices, etc.
(1) Notices. Any and all notices or other communications required or
permitted pursuant to this agreement shall be in writing and shall be
personally delivered by courier or telecopied to the addressee at the
address referred to below, in which case such notice or other
communication shall conclusively be deemed to have been given to the
addressee thereof on the day upon which it was delivered or received
by telecopy if delivered or received prior to the relevant time on
such day (or on the next Business Day if received after the relevant
time or if received on a day that is not a Business Day). For this
purpose, the "relevant time" shall be 1:00 pm (local time of the
addressee) in the case of a Notice, and 3:00 pm (local time of the
addressee) in all other cases. The addresses referred to above for the
Borrowers and the Administration Agent are as follows, and in respect
of the Lenders as set forth in schedule 1 annexed hereto:
Borrowers
__________
TELUS Corporation or TELUS Communications Inc.
555 Robson Street, Suite 3B
Vancouver, British Columbia
V6B 3K9
Attention: Senior Vice President and Treasurer
Telecopy No. (604) 899-9228
with a copy to:
TELUS Corporation
30th Floor, 10020 100th Street
Edmonton, Alberta
T5J 0N5
Attention: Senior Treasury Manager
Telecopy No. (780) 493-3612
Administration Agent
The Toronto Dominion Bank
Investment Banking
77 King Street West
Royal Trust Tower, 18th Floor
Toronto Dominion Centre
Toronto, Ontario
M5K 1A2
Attention: Vice President, Loan Syndications - Agency
Telecopy No. (416) 982-5535
(2) Change. Each party may change its address for service by written
notice, given in the manner provided above, to the other parties and
such change shall be effective upon the date the notice shall be
deemed to be received.
(3) Deliveries. All deliveries of financial statements and other
documents to be made by the Borrowers to the Lenders hereunder shall
be made by making delivery of such financial statements and documents
to the Administration Agent (in sufficient copies for the
Administration Agent and each Lender) to the address in section
12.3(1) or to such other address as the Administration Agent may from
time to time notify to the Borrowers. All such deliveries shall be
effective only upon actual receipt.
(4) Notice Irrevocable. Each Notice shall be irrevocable and binding
on the relevant Borrower.
(5) Reliance. The Administration Agent may act upon the basis of
telephonic notice believed by it in good faith to be from a Borrower
prior to receipt of a Notice. In the event of conflict between the
Administration Agent's record of the applicable terms of any
Accommodation and such Notice, the Administration Agent's record shall
prevail, absent demonstrated error.
(6) No Waiver; Remedies. No failure on the part of the Administration
Agent or any of the Lenders to exercise, and no delay in exercising,
any right under any Credit Facility Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right under
any Credit Facility Document preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein and
therein provided are cumulative and not exclusive of any remedies
provided by Law.
12.4 Expenses. The Borrowers shall pay to the Administration Agent, on
its own account and on behalf of the Lenders, all reasonable costs and
expenses (including all reasonable legal fees and disbursements on a full
reimbursement basis) incurred by the Administration Agent in connection
with this agreement, the other Credit Facility Documents and the Credit
Facility, including:
(a) the negotiation, preparation, printing, execution, delivery and
interpretation, both prior and subsequent to the Closing Date, of
the Summary of Terms and Conditions relating to the Credit
Facility, this agreement, any other Credit Facility Document and
financial and other information prepared for prospective Lenders;
(b) the performance by the Administration Agent of its obligations
and duties under any Credit Facility Document;
(c) the fees and expenses of consulting and other expert or
professional services; provided that, prior to the occurrence of a
Default or an Event of Default, the provider of such services has
been approved by TELUS, which approval shall not be unreasonably
withheld;
(d) advice of counsel with respect to the administration of or
other matters relating to the Credit Facility, any Credit Facility
Document or any transaction contemplated thereunder;
(e) the enforcement of any Credit Facility Document or the
enforcement or preservation of rights under, and the refinancing,
renegotiation or restructuring (including negotiation of any
so-called "workout" or similar transaction) of the Credit Facility
under, this agreement or any other Credit Facility Document or the
bringing of any action, suit or proceeding with respect to the
enforcement of any Credit Facility Document or any such right or
seeking any remedy which may be available to the Administration
Agent or the Lenders at law or in equity; and
(f) any amendments, waivers or consents requested by a Borrower
pursuant to the provisions hereof or any other Credit Facility
Document.
Notwithstanding the foregoing, the Lenders will limit reimbursable legal
fees and disbursements to one law firm in Canada, except pursuant to
paragraph (e) following an Event of Default.
The obligations of the Borrowers under this section 12.4 shall survive
the payment and performance of the Obligations.
12.5 Judgment Currency.
(1) Exchange Rate. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder to the
Administration Agent or a Lender in one currency (in this section
12.5, the "Original Currency") into another currency (in this section
12.5, the "Judgment Currency"), the parties agree, to the fullest
extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures
the Administration Agent or such Lender could purchase the Original
Currency with the Judgment Currency on the Business Day preceding that
on which final judgment is paid or satisfied.
(2) Obligation. The obligations of a Borrower in respect of any sum
due in the Original Currency from it to the Administration Agent or a
Lender under any Credit Facility Document shall, notwithstanding any
judgment in any Judgment Currency, be discharged only to the extent
that, on the Business Day following receipt by the Administration
Agent or such Lender of any sum adjudged to be so due in such Judgment
Currency, the Administration Agent or such Lender may in accordance
with normal banking procedures purchase the Original Currency with
such Judgment Currency. If the amount of the Original Currency so
purchased is less than the sum originally due to the Administration
Agent or such Lender in the Original Currency, such Borrower agrees,
as a separate obligation and notwithstanding any such judgment, to
indemnify the Administration Agent or such Lender against such loss
and, if the amount of the Original Currency so purchased exceeds the
sum originally due to the Administration Agent or such Lender in the
Original Currency, the Administration Agent or such Lender agrees to
remit such excess to such Borrower.
12.6 Governing Law.
(1) Governing Law. This agreement shall be governed by and construed
in accordance with the laws of the Province of British Columbia and
the laws of Canada applicable therein.
(2) Submission to Jurisdiction. Each party hereby irrevocably submits
to the jurisdiction of the courts of British Columbia in any action or
proceeding arising out of or relating to this agreement and hereby
irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such courts. Each party
hereby irrevocably waives, to the fullest extent it may effectively do
so, the defence of an inconvenient forum to the maintenance of such
action or proceeding. As an alternative to any other method of service
permitted by applicable Law, each party also irrevocably consents to
the service of any and all process in any such action or proceeding by
the mailing of copies of such process to it at its address referred to
in section 12.3 or at such other address as it may direct in
accordance with section 12.3. Each party 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.
(3) Non-Exclusive. Nothing in this section 12.6 shall affect the right
of any party to serve legal process in any other manner permitted by
Law or affect the right of a party to bring any action or proceeding
against another party or its property in the courts of other
jurisdictions.
(4) Trial by Jury. Each of the parties hereto, to the fullest extent
permitted by Law, hereby waives its rights to a trial by jury.
12.7 Successors and Assigns.
(1) Enurement. This agreement shall become effective when it shall
have been executed by the parties and thereafter shall be binding upon
and enure to the benefit of the parties and their respective
successors and permitted assigns.
(2) Assignment by the Borrowers. Neither Borrower shall have the right
to assign its rights or obligations hereunder or any interest herein
without the prior consent of all the Lenders, which consent may be
withheld by the Lenders in their sole and absolute discretion;
provided that the foregoing shall not prohibit a Permitted Merger by a
Borrower or the replacement of TELUS by TCI as a Borrower in respect
of a portion of the Credit Facility pursuant to section 2.3.
(3) Participation. A Lender may at any time sell to one or more other
persons ("Participants") participating interests in all or any part of
the Credit Facility. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations
under this agreement to the Borrowers shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof and
the Borrowers shall continue to be obligated to such Lender in
connection with such Lender's rights under this agreement. No
Participant, unless such Participant is an affiliate of such Lender,
or is itself a Lender, shall be entitled to require such Lender to
take or refrain from taking any action hereunder or under any other
Credit Facility Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in section 12.2(2) (c)
or (d). The Borrowers agree that, if amounts outstanding under this
agreement are due and unpaid, or shall have been declared to be or
shall have become due and payable further to the occurrence of an
Event of Default, each Participant that was disclosed to TELUS at the
time of creation of the relevant participation shall be deemed to have
the right of setoff, if any, in respect of its participating interests
in amounts owing under this agreement to the same extent as if the
amount of its participating interest were owing directly to it as such
Lender under this agreement. The Borrowers also agree that each
Participant shall be entitled to the benefits of section 9.5 with
respect to its participation hereunder; provided that no Participant
shall be entitled to receive any greater amount pursuant to such
section, nor shall a Borrower as a result thereof be required to pay
any greater amount, than such Lender would have been entitled to
receive, or such Borrower would have been required to pay, in respect
of the amount of the participation transferred by such Lender to such
Participant had no such transfer occurred.
Unless an Event of Default has occurred and is continuing, the sale
of participating interests by a Lender hereunder shall be subject
to the prior written consent of the Borrowers, which consent shall
not be unreasonably withheld.
For the purposes of this agreement, the term "participation" shall
not include any transaction or security commonly known as a credit
default swap, credit-linked note or any similar credit derivative
instrument.
(4) Assignments. A Lender (an "Assignor") may at any time sell all or
any part of its rights and obligations hereunder to one or more
persons ("Assignees") in respect of an aggregate amount of Commitment
exceeding C$10 million. Upon such sale, the Assignor shall, to the
extent of such sale, be released from its obligations hereunder and
each of the Assignees shall become a party hereto to the extent of the
interest so purchased, having the rights of a Lender and the benefit
of section 9.5. Any such sale by an Assignor shall not be effective
unless and until (i) (unless such sale is to a Related Fund or an
affiliate of the Assignor) the Assignor has paid to the Administration
Agent an assignment fee in the amount of C$3,500, (ii) the Assignee
has executed an instrument substantially in the form of schedule 5
annexed hereto whereby such Assignee has agreed to be bound by the
terms hereof as a Lender and has agreed to specific Commitments under
the Credit Facility and a specific address and telefacsimile number
for the purpose of notices as provided in section 12.3, and (iii) a
copy of a fully executed copy of such instrument has been delivered to
each of the Administration Agent and the Borrowers. Upon any such sale
becoming effective, schedule 1 annexed hereto shall be deemed to be
amended to include the Assignee as a Lender including the specific
Commitments, Lending Office, address and telefacsimile number as
aforesaid and the Commitments of the Assignor shall be deemed to be
reduced by the amount of the Commitments assigned to the Assignee. No
Lender (including an Assignee) shall, after an assignment made
pursuant to this section 12.7(4), hold an amount of Commitment less
than C$10 million unless such Lender has assigned the entire amount of
its Commitments.
Unless an Event of Default has occurred and is continuing and except
with respect to an assignment to an affiliate or a Related Fund, any
assignment pursuant to this section 12.7(4) shall require the prior or
concurrent written acknowledgement of the Administration Agent and the
prior written consent of the Borrowers, neither of which will be
unreasonably withheld.
In this section 12.7(4), "Related Fund" means, with respect to any
Lender that is a fund, another fund that invests in loans that is
managed by the same investment advisor as such Lender or by an
affiliate of such Lender or such investment advisor.
(5) Information. Each Borrower authorizes the Administration Agent and
each Lender to disclose to any Participant or Assignee (each, a
"Transferee") and any prospective Transferee and authorizes the
Administration Agent and each Lender to disclose to any Lender any and
all financial information in their possession concerning the Borrowers
and their affiliates which has been delivered to them by or on behalf
of the Borrowers pursuant to this agreement or which has been
delivered to them by or on behalf of the Borrowers in connection with
their credit evaluation prior to becoming a party to this agreement,
so long as any such Transferee or prospective Transferee agrees to
comply with section 12.9.
(6) Restrictions on Participations and Assignments by Lenders.
Notwithstanding anything to the contrary contained in section 12.7(3)
or 12.7(4) or any other provision of this agreement, a Lender who is
not a non-resident of Canada within the meaning of the Income Tax Act
(Canada) shall not sell participating interests in all or any part of
the Credit Facility to, or assign all or any part of its rights and
obligations hereunder to, any person who is a non-resident of Canada
unless such person provides to the Borrowers such information with
respect to such person as is reasonably necessary in order to permit
the Borrowers to comply with any applicable Law, or any applicable
guideline, official directive, request or direction (whether or not
having the force of Law) of any Official Body, requiring the Borrowers
to deduct or withhold any amount on account of Taxes or Excluded Taxes
from or in respect of any payment made pursuant to this agreement to
such person.
12.8 Conflict. In the event of a conflict between the provisions of
this agreement and the provisions of any other Credit Facility
Document, the provisions of this agreement shall prevail.
12.9 Confidentiality. Information provided by the Borrowers hereunder
will not be disclosed by the Administration Agent or any Lender or
used by the Administration Agent or any Lender for any purpose other
than evaluation, monitoring and review pursuant to this agreement;
provided that such information may be disclosed:
(a) as contemplated by section 12.7(5) if such Participant or
Assignee or prospective Transferee is advised such information is
confidential and agrees to treat such information as confidential;
(b) to any director, officer or employee of the Administration
Agent or such Lender or its subsidiaries involved with the Credit
Facility that otherwise has a need for such information; provided
that same is treated in the same manner as other confidential
information held by the Administration Agent or such Lender;
(c) to legal counsel, accountants and other consultants and
professional advisors determined by the Administration Agent or
such Lender to require such information for the purpose of
assisting in or advising upon such evaluation, monitoring and
review, if such persons are advised that such information is
confidential to the Borrowers;
(d) pursuant to applicable Law or the request of any Official Body
with which the Administration Agent or such Lender customarily
complies;
(e) to the extent that such information is public;
(f) to the extent that such information was previously known to the
Administration Agent or such Lender through means other than the
Borrowers, or was acquired from a third party not known to the
Administration Agent or such Lender to be under a duty of
confidentiality to the Borrowers or their relevant affiliate.
12.10 Severability. The provisions of this agreement are intended to
be severable. If any provision of this agreement shall be held invalid
or unenforceable in whole or in part in any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without in any manner affecting
the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
12.11 Prior Understandings. This agreement supersedes all prior
understandings and agreements, whether written or oral, among the
parties relating to the transactions provided for herein.
12.12 Time of Essence. Time shall be of the essence hereof.
12.13 Counterparts. This agreement may be executed in counterparts,
each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument, and may be
delivered by a party by facsimile or similar means of recorded
communication.
IN WITNESS WHEREOF the parties have caused this agreement to be
executed by their respective officers thereunto duly authorized, as of
the date first above written.
BORROWERS:
TELUS CORPORATION
Per:_________________
Authorized Signatory
Per:_________________
Authorized Signatory
TELUS COMMUNICATIONS INC.
Per:_________________
Authorized Signatory
Per:_________________
Authorized Signatory
ADMINISTRATION AGENT:
THE TORONTO-DOMINION BANK
Per:_________________
Authorized Signatory
(Intentionally Deleted)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: March 23, 2007
TELUS Corporation
/s/ Audrey Ho
_____________________________
Name: Audrey Ho
Title: Vice President, Legal Services and
General Counsel and Corporate Secretary