FORM 6-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
of the Securities Exchange Act of 1934
For the month of May 2004
(Commission File Number: 000-24876)
TELUS Corporation
(Translation of registrant's name into English)
21st Floor, 3777 Kingsway
Burnaby, British Columbia V5H 3Z7
Canada
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F:
Form 20-F _____ Form 40-F __X__
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(1): ____
Indicate by check mark if the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(7): ____
Indicate by check mark whether by furnishing the information contained
in this Form, the registrant is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes _____ No __X__
If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82-________
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
________________________________________________________________________________
2004 CREDIT AGREEMENT
________________________________________________________________________________
TD SECURITIES AND RBC CAPITAL MARKETS
Co-Lead Arrangers
TD SECURITIES
Bookrunner
ROYAL BANK OF CANADA
Syndication Agent
BANK OF MONTREAL, THE BANK OF NOVA SCOTIA AND
CANADIAN IMPERIAL BANK OF COMMERCE
Co-Documentation Agents
________________________________________________________________________________
Dated for reference May 7, 2004
TABLE OF CONTENTS
PAGE
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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 FACILITIES.....................................................................33
2.1 Credit Facilities.............................................................................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
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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
Page
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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
Page
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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 OMITTED)
1 Lenders and Commitments
2 Accommodation Request
3 Repayment/Cancellation Notice
4 Subsidiaries
5 Assignment
6 Compliance Certificate
7 Required Notice
8 Form of Opinion
9 Existing Letters of Credit
THIS AGREEMENT is dated for reference May 7, 2004.
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 two credit
facilities, 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 4-Year 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 a 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.
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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 Fees: Commitment
----- Ratings for Acceptances, LIBOR Advances and 4-Year Facility Fees: 364-Day
such Borrower Advances and Base Rate --------------- Facility
are: Issuance fees: Advances: --------
---- -------------- ---------
I A- and A low 65.0 Nil 16.25 12.5
or higher
II BBB+ and BBB 75.0 Nil 17.5 15.0
high
III BBB and BBB 100.0 Nil 22.5 20.0
IV BBB- and BBB 125.0 25.0 30.0 25.0
low
V below BBB- 175.0 75.0 43.75 35.0
and BBB low
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 lower 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
above the Level corresponding to the lower 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
3
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) "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.
(9) "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.
(10) "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.
(11) "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
4
(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.
(12) "BASIS POINT" and "B.P." each mean one one-hundredth (1/100)
of one per cent, or .01%.
(13) "BENEFICIARY" means, in respect of any Letter of Credit, the
beneficiary specified therein.
(14) "BORROWER" and "BORROWERS" mean, as the context requires,
either or both of TELUS and TCI.
(15) "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.
(16) "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 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 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 and Toronto.
(17) "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
5
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.
(18) "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 either or both of the
Credit Facilities, the Principal Outstanding in
favour of such Lender under such Credit Facilities;
and
(b) when used elsewhere in this agreement with reference
to either or both of the Credit Facilities, the
Principal Outstanding in favour of the Lenders under
such Credit Facilities;
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.
(19) "CANADIAN DOLLARS", "CDN. DOLLARS", "CDN. $", "C$" and "$"
each mean lawful money of Canada.
(20) "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).
(21) "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).
(22) "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
6
equity of such person, whether now outstanding or issued
after the date hereof.
(23) "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.
(24) "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
7
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.
(25) "CLOSING DATE" means May 7, 2004 or such other date as shall
be mutually agreed by TELUS and the Lenders.
(26) "COMMITMENT" means, for a Lender in respect of a Credit
Facility, the amount in respect of such Credit Facility set
forth opposite such Lender's name under the heading, as the
case may be, "4-Year Facility" or "364-Day Facility" on
schedule 1 annexed hereto to the extent not permanently
reduced, cancelled or terminated pursuant to this agreement.
(27) "COMPLIANCE CERTIFICATE" means a certificate delivered by
TELUS pursuant to section 8.1(8)(c) substantially in the form
of schedule 6 annexed hereto.
(28) "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).
(29) "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).
(30) "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
8
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.
(31) "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.
(32) "CREDIT FACILITY" means, as the context requires, either of
the 4-Year Facility or the 364-Day Facility, and "CREDIT
FACILITIES" means, as the context requires, both of the said
facilities.
(33) "CREDIT FACILITY DOCUMENTS" means this agreement, Bankers'
Acceptances, Letters of Credit and all other documents
necessary to implement the financing comprised in the Credit
Facilities.
(34) "DBRS" means Dominion Bond Rating Service Limited.
(35) "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;
9
(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, (ii) Debt shall not include any
liability for unpaid Taxes not yet due, and (iii) Debt shall
not include the TELUS Convertible Debentures. 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.
(36) "DEFAULT" means an event which, with the giving of notice or
passage of time, or both, would constitute an Event of
Default.
(37) "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
10
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.
(38) "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.
(39) "DRAWING" means the creation or making of one or more Bankers'
Acceptances in pursuance of an Accommodation Request.
11
(40) "DRAWING DATE" means any Business Day fixed in accordance with
the provisions of this agreement for a Drawing.
(41) "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).
(42) "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.
(43) "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.
(44) "EVENT OF DEFAULT" means any of the events specified in
section 10.1.
(45) "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;
12
(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) the Quebec Tel MTN's; and
(e) Debt comprised in an Accommodation made to TCI under
the 364-Day Facility if the proceeds thereof were
used to repay commercial paper.
(46) "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.
(47) "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.
(48) "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
13
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.
(49) "FINAL MATURITY DATE" means the day that is:
(a) in the case of the 4-Year Facility, the fourth
anniversary of the Closing Date; and
(b) in the case of the 364-Day Facility and subject to
extension under section 2.2(3), the first anniversary
of the 364-Day Availability Termination Date;
or, if any such day is not a Business Day, the immediately
preceding Business Day.
(50) "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.
(51) "FINANCIAL YEAR" means a financial year commencing on January
1 of each calendar year and ending on and including December
31 of such year.
(52) "4-YEAR FACILITY" means the Credit Facility to be made
available for the purposes set forth in section 2.1(2)(a), on
a revolving basis and in an aggregate C$ Equivalent Principal
Outstanding not to exceed C$800 million.
(53) "4-YEAR LENDERS" and "364-DAY LENDERS" mean, respectively, the
Lenders providing a Commitment in respect of the relevant
Credit Facility.
(54) "FRONTING LENDER" means TD Bank in its capacity as the issuer
of Letters of Credit as contemplated by Article 5.
(55) "FUNDED DEBT" of any person at any time means the Debt of such
person at such time, less:
14
(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.
(56) "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 after March 31, 2004).
(57) "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.
15
(58) "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.
(59) "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.
(60) "HEDGING OBLIGATIONS" means, with respect to any person,
payment or delivery obligations under Hedge Instruments.
16
(61) "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.
(62) "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.
(63) "INTERCOMPANY DEBT" means any Debt of a subsidiary of TELUS to
TELUS, and vice-versa, or to another subsidiary of TELUS.
(64) "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.
(65) "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 under a Credit Facility may be
selected which would end on a day after the Final Maturity
Date for such Credit Facility or, in the
17
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.
(66) "ISP98" means the International Standby Practices ISP98, as
published by the International Chamber of Commerce and in
effect from time to time.
(67) "ISSUANCE" means the issuance of one or more Letters of Credit
made pursuant to an Accommodation Request.
(68) "ISSUE DATE" means any Business Day fixed in accordance with
the provisions of this agreement for an Issuance.
(69) "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.
(70) "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.
(71) "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
Facilities.
(72) "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.
(73) "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 4-Year Lenders at the request and upon the indemnity of
TELUS 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.
(74) "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:
18
(a) "X" is Funded Debt 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.
(75) "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.
(76) "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
19
with or from the proceeds of any properties, assets or
revenues of any kind now owned or later acquired.
(77) "MAJORITY LENDERS" means:
(a) in respect of both Credit Facilities at any time,
Lenders whose respective individual Commitments
aggregate at least 50.1% of the total Commitments of
all Lenders under the Credit Facilities at such time;
and
(b) in respect of a particular Credit Facility at any
time, Lenders whose respective individual Commitments
under such Credit Facility aggregate at least 50.1%
of the total Commitments under such Credit Facility
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 under (as the case may be) all
Credit Facilities or a particular Credit Facility at such
time.
(78) "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.
(79) "MATERIAL SUBSIDIARY" means, at any time, a 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.
(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
20
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:
(a) at any time in respect of a Credit Facility, the
amount equal to the sum of:
(i) the Principal Outstanding under such Credit
Facility;
(ii) all accrued and unpaid interest thereon and
all interest on accrued and unpaid interest;
and
(iii) 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 such Credit
Facility; and
(b) at any time in respect of both Credit Facilities, the
amount equal to the sum of:
(i) the Principal Outstanding under both Credit
Facilities;
(ii) all accrued and unpaid interest thereon and
all interest on accrued and unpaid interest;
and
(iii) 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 either Credit
Facility.
21
(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: Bank of America National Trust &
Savings Association
SWIFT BOFAUS3N
ABA #026 009 593
Favour of: TD Bank Toronto
Account #6550-8-26336
For further credit:
Agency Administration
US$ Account #0360-01-2261871
(Ref: TELUS Corporation)
(b) for Cdn. Dollars: The Toronto-Dominion Bank
International Centre Toronto
For account:
Agency Administration
CAN$ Account #0360-01-2261774
(Ref: TELUS Corporation)
SWIFT TDOMCATTTOR
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
22
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
workmen's compensation, 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;
23
(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;
24
(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
25
(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 no such
certificate or opinion shall be required in
the case of a transaction involving (A) only
a Borrower and Material Subsidiaries, or (B)
only Material Subsidiaries.
(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.
26
(93) "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.
(94) "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 either or both of the
Credit Facilities, the sum of:
(i) the aggregate principal amount of all
Advances and BA Equivalent Loans then
outstanding made by such Lender under such
Credit Facilities; and
27
(ii) the Face Amount of all Accommodations then
outstanding made by such Lender under such
Credit Facilities 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 with reference
to either or both of the Credit Facilities, the sum
of:
(i) the aggregate principal amount of all
Advances and BA Equivalent Loans then
outstanding made by the Lenders under such
Credit Facilities; and
(ii) the Face Amount of all Accommodations then
outstanding made by the Lenders under such
Credit Facilities by way of Bankers'
Acceptances (whether or not held by the
respective Lenders) and Letters of Credit.
(95) "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).
(96) "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.
(97) "QUEBEC TEL" means TELUS Communications (Quebec) Inc.
(98) "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, as supplemented by, inter alia, a supplemental
trust deed bearing formal date of July 1, 1990.
(99) "QUEBEC TEL MTN'S" means the 7.10% Medium Term Notes due
February 1, 2007 in the aggregate principal amount of C$70
million issued by Quebec Tel pursuant to a trust indenture
dated as of September 1, 1994 between Quebec-Telephone, Trust
Generale du Canada and Natcan Trust Company, as supplemented
and amended by, inter alia, an indenture dated as of December
17, 1996.
(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.
28
(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).
(110) "SENIOR OFFICER" means, in respect of a corporation, the
chairman 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
29
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 4-Year 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) "TCI" means TELUS Communications Inc.
(118) "TD BANK" means The Toronto-Dominion Bank, a Canadian
chartered bank.
(119) "TELUS" means TELUS Corporation (B.C. Inc. No. 0573792).
(120) "TELUS CONVERTIBLE DEBENTURES" means the 6.75% Convertible
Unsecured Subordinated Debentures due June 15, 2010 and the
Variable Rate Convertible Unsecured Subordinated Debentures
due June 15, 2010 of the Borrower.
(121) "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",
30
"paragraph" and "schedule" followed by a number or letter
mean and refer to the specified Article, section, paragraph
or schedule of this agreement.
(122) "364-DAY AVAILABILITY TERMINATION DATE" means the day that is
364 days after the Closing Date, subject to extension under
section 2.2(3).
(123) "364-DAY FACILITY" means the Credit Facility to be made
available for the purposes set forth in section 2.1(2)(b), on
a revolving basis during the 364-Day Revolving Period and on a
non-revolving basis during the 364-Day Non-Revolving Period,
and in an aggregate C$ Equivalent Principal Outstanding not to
exceed C$800 million.
(124) "364-DAY NON-REVOLVING PERIOD" means the period from the
364-Day Availability Termination Date to the Final Maturity
Date for the 364-Day Facility.
(125) "364-DAY REVOLVING PERIOD" means the period from the Closing
Date to and including the 364-Day Availability Termination
Date.
(126) "US DOLLARS", "UNITED STATES DOLLARS" and "US$" 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.
31
1.4 INCORPORATION OF SCHEDULES. Schedules 1 to 9 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
32
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, the letters of credit described in
schedule 9 annexed hereto shall for all purposes be deemed to be
Letters of Credit issued and outstanding under the 4-Year Facility.
ARTICLE 2
THE CREDIT FACILITIES
2.1 CREDIT FACILITIES.
(1) Commitment. The Credit Facilities to be made available,
subject to the terms and conditions of this agreement, are as
follows:
(a) the 4-Year Facility, to be made available to TELUS by
the 4-Year Lenders on a revolving basis in the
principal amount of up to but not exceeding C$800
million; and
(b) the 364-Day Facility, to be made available to TELUS
(or, in the circumstances contemplated by section
2.3, TCI) by the 364-Day Lenders on a revolving basis
during the 364-Day Revolving Period and on a
non-revolving basis during the 364-Day Non-Revolving
Period, in the principal amount of up to but not
exceeding C$800 million.
Subject to the terms and conditions herein set forth, each
Credit Facility shall be available in Canadian Dollars by way
of Prime Rate Advances, Bankers' Acceptances or (in the case
of the 4-Year Facility) Letters of Credit, or in US Dollars by
way of Base Rate Advances or LIBOR Advances.
Subject to the terms and conditions herein set forth, each
Lender shall make Accommodations available under a Credit
Facility pro rata on the basis of such Lender's Commitment
thereunder, as set forth in schedule 1 annexed hereto.
In no event shall a Lender be obligated to make
Accommodations available under a Credit Facility if after
making such Accommodations the C$ Equivalent Principal
Outstanding of that Lender's Accommodations under such
Credit Facility would exceed that Lender's Commitment in
respect of such Credit Facility. For greater certainty and
notwithstanding section 2.1(6), in no event shall the C$
Equivalent Principal Outstanding of
33
either the Fronting Lender's or the Swingline
Lender's respective Accommodations under the 4-Year Facility
(including the entire Principal Outstanding by way of, as the
case may be, Letters of Credit or Swingline Advances) exceed
such Lender's Commitment in respect of the 4-Year Facility.
Each Lender shall make Accommodations available to a Borrower
through its relevant Lending Branch.
(2) Purposes. The Credit Facilities shall be used only for the
following purposes:
(a) in the case of the 4-Year Facility, for general
corporate purposes; and
(b) in the case of the 364-Day Facility, for general
corporate purposes (including by way of a backstop
for commercial paper issued by a Borrower or Material
Subsidiary).
(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 each Credit Facility
up to the following dates, namely:
(a) 4-Year Facility - the Business Day immediately
preceding the relevant Final Maturity Date;
(b) 364-Day Facility - the 364-Day Availability
Termination Date;
provided that Accommodations by way of Conversion and Rollover
shall be available under each Credit Facility up to the
relevant Final Maturity Date.
Any remaining portion of a Credit Facility not previously made
available to the Borrowers on the relevant date indicated in
(a) or (b) above shall be cancelled and shall thereafter not
be available hereunder, and the Commitments for such Credit
Facility shall be reduced accordingly on a permanent basis.
(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):
34
(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$1 million.
(5) Revolving Nature. Each of the 4-Year Facility and (during the
364-Day Revolving Period) the 364-Day Facility is a so-called
"revolving" facility and amounts may be repaid thereunder and
subsequently made the subject of a further Accommodation
(subject to compliance with the terms and conditions of this
agreement). During the 364-Day Non-Revolving Period, the
364-Day Facility shall not revolve, and amounts repaid or
prepaid thereunder may not be the subject of any further
Accommodations (other than by way of Conversions or
Rollovers).
(6) Swingline Advances.
(a) The Swingline Lender establishes a committed
revolving operating credit facility as part of the
4-Year Facility in favour of TELUS, up to the
Swingline Amount, to finance the day-to-day
requirements of TELUS for general corporate purposes.
(b) Each Swingline Advance shall be made by the Swingline
Lender by way of a Prime Rate Advance (if requested
in Canadian Dollars) or a Base Rate Advance (if
requested in US Dollars) on the same day's notice if
given to the Swingline Lender before noon (Toronto
time) or, if requested by TELUS, on an overdraft
basis by debiting such account of TELUS as shall be
established by agreement of TELUS and the Swingline
Lender. The amount of any such overdraft from time to
time shall be deemed to be a Prime Rate Advance (to
the extent of such debit balance in Canadian Dollars)
and a Base Rate Advance (to the extent of such debit
balance in US Dollars). TELUS
35
shall ensure that the aggregate C$ 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
4-Year Facility shall be reduced by the Swingline
Amount and the rateable shares of the 4-Year Lenders
in each Accommodation made under the 4-Year Facility
(excluding the Swingline) shall be adjusted
proportionately.
(d) If the Commitment of the Swingline Lender under the
4-Year Facility 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 a Credit Facility will become due and payable in full on
the Final Maturity Date for such Credit Facility.
(2) Foreign Exchange Fluctuations. If at any time the C$
Equivalent Principal Outstanding under either Credit Facility
shall exceed 105% of the aggregate Commitments of the Lenders
in respect of such Credit Facility or if at any time the C$
Equivalent Principal Outstanding under either Credit Facility
shall have exceeded for a 30 day period 103% of the aggregate
Commitments of the Lenders in respect of such Credit Facility,
in either case solely by virtue of a change in the Equivalent
Amount in Cdn. Dollars of Accommodations made in US Dollars,
the relevant Borrower 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
36
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.
(3) Optional Extensions. The relevant Borrower may, during the
period between 45 and 90 days prior to the subsisting 364-Day
Availability Termination Date, make a request to the
Administration Agent for an extension of such date (and
therefore the 364-Day Revolving Period) for an additional
period of 364 days. Not later than the date that is 21 days
after such request or 45 days prior to the subsisting 364-Day
Availability Termination Date, whichever is the later, the
Administration Agent, subject to the consent of the Majority
Lenders under the 364-Day Facility (which consent may be
granted or refused by the 364-Day Lenders in their sole and
absolute discretion), will extend such 364-Day Availability
Termination Date for an additional period of 364 days, such
extension applying only to those 364-Day Lenders which
provided their consent to the extension request. A failure of
a Lender to respond affirmatively to the Administration Agent,
or a failure of the Administration Agent to respond
affirmatively to such Borrower, prior to the time required for
a response shall be considered a negative response.
In the event that the Majority Lenders (collectively, the
"CONSENTING LENDERS") under the 364-Day Facility shall consent
as aforesaid to an extension of such 364-Day Availability
Termination Date, the Accommodations under the 364-Day
Facility of a 364-Day Lender not consenting (a "NON-CONSENTING
LENDER") shall be subject to the following options of the
relevant Borrower in respect of such Lender (which options may
be exercised by such Borrower in combination with respect to a
Non-Consenting Lender, and in a different manner with respect
to different Non-Consenting Lenders):
(a) on or before the subsisting 364-Day Availability
Termination Date, to repay any Accommodations made by
the Non-Consenting Lender under the 364-Day Facility
and reduce the aggregate 364-Day Facility by the
Commitment of such Non-Consenting Lender under the
364-Day Facility;
37
(b) on or before the subsisting 364-Day Availability
Termination Date, to replace all or part of the
Commitment of the Non-Consenting Lender under the
364-Day Facility by Commitment increases of one or
more Consenting Lenders, at their option, or by one
or more new lenders satisfactory to such Borrower and
the Administration Agent acting reasonably and, to
the extent that the Commitment of the Non-Consenting
Lender under the 364-Day Facility is not replaced, to
repay any remaining Accommodations made by the
Non-Consenting Lender under the 364-Day Facility and
reduce the Commitment of such Non-Consenting Lender
under the 364-Day Facility; and
(c) to allow the Accommodations made or required to be
made by the Non-Consenting Lenders up to the
subsisting 364-Day Availability Termination Date to
remain outstanding under the 364-Day Facility after
the subsisting 364-Day Availability Termination Date
as if such date were not extended, and accordingly
the Final Maturity Date for the 364-Day Facility
shall also be deemed not to have been extended with
respect to such Accommodations.
For greater certainty:
(i) except for Accommodations remaining
outstanding as contemplated by the foregoing
paragraph (c) (including Rollovers and
Conversions thereof) (collectively,
"TERMED-OUT ACCOMMODATIONS"), Applicable
Margins and fees are subject to review by
the Consenting Lenders on each optional
extension request, without the need for any
further approval under section 12.2;
(ii) fees under section 2.7(a) shall not be
payable in respect of Termed-Out
Accommodations; and
(iii) the Borrower may from time to time repay and
reborrow Accommodations under the 364-Day
Facility without repaying any portion of the
Termed-Out Accommodations; provided that, if
the remaining Commitments in respect of the
364-Day Facility are at any time reduced or
any permanent repayment in respect of the
364-Day Facility is made, the same
percentage of the Termed-Out Accommodations
will concurrently be permanently repaid.
2.3 REPLACEMENT OF BORROWER. TELUS and TCI may at any time prior to the
364-Day Availability Termination Date deliver to the Administration
Agent a notice to the
38
effect that TELUS will be replaced by TCI as the Borrower under the
364-Day Facility, which replacement will become effective on such
date (occurring prior to the 364-Day Availability Termination 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.
Any such notice may (at the option of TELUS and TCI) provide that,
upon such replacement becoming effective, the Final Maturity Date for
the 364-Day Facility shall (subject to extension under section
2.2(3)) be that number of days after the 364-Day Availability
Termination Date as specified in such notice; provided that the
number of days so specified shall in any event be less than 365. Upon
such replacement becoming effective:
(a) any reference herein to the "relevant Borrower" in
the context of the 364-Day Facility shall constitute
a reference to TCI;
(b) any Obligations outstanding under the 364-Day
Facility shall cease to be obligations of TELUS and
shall become obligations of TCI; and
(c) TELUS shall thenceforth have no ability to avail
itself of Accommodations under the 364-Day Facility.
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 a
Credit Facility (pro rata among such Lenders on the basis of
their respective Commitments in respect of such Credit
Facility); 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 under a Credit Facility,
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.
39
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 and the
definition of "Final Maturity Date", 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 under the Credit Facilities (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.
40
(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 with respect to the
relevant Credit Facility; 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.
41
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) in respect of each Credit Facility, a commitment fee (for the
account of the Lenders pro rata on the basis of their
respective Commitments under such Credit Facility) 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 final day of availability
under such Credit Facility of Accommodations (other than
Conversions or Rollovers), 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 Credit Facility and the
aggregate Commitments with respect to such Credit Facility, 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
42
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
43
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
44
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 eight separate maturity
dates, in aggregate, for all LIBOR Advances and Bankers'
Acceptances outstanding under the 4-Year Facility, and eight
separate maturity dates, in aggregate, for all LIBOR Advances
and Bankers' Acceptances outstanding under the 364-Day
Facility.
ARTICLE 3
ADVANCES
3.1 ADVANCES.
(1) Commitment. Each Lender agrees (on a several basis with the
other Lenders under each relevant Credit Facility, up to the
amount of such Lender's Commitment thereunder), on the terms
and conditions herein set forth, from time to time on any
Business Day, to make Advances under each relevant 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
45
Lender prompt notice thereof and of such Lender's rateable
portion of each type of Borrowing to be made under the
Borrowing and the Equivalent Amount in US Dollars where such
Lender has the option of providing funds in US Dollars. 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 a type of Borrowing
comprising 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 corresponding amounts. If and
to the extent that such Lender shall not have made its
rateable portions available to the Administration Agent,
such Lender shall pay such corresponding amounts to the
Administration Agent forthwith on demand. If such Lender
shall pay such corresponding amounts to the Administration
Agent, the amounts so paid shall constitute such Lender's
rateable portions 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
amounts, for each day from the date such amounts were made
available by the Administration Agent to such Borrower until
the date such amounts are repaid to the Administration
Agent, at the rate payable by
46
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 amounts to the Administration Agent forthwith on
demand, such Borrower shall pay such corresponding amounts
(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 best 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.
47
(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 (as the case may be) 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 under each relevant
Credit Facility, up to the amount of such Lender's Commitment
thereunder), on the terms and conditions herein set forth,
from time to time on any Business Day, to accept and purchase
Bankers' Acceptances under each relevant 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
48
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 under a
Credit Facility which would end on a date subsequent to the
Final Maturity Date for such Credit Facility or that would
conflict with any repayment stipulated herein.
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
49
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
50
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
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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.
ARTICLE 5
LETTERS OF CREDIT
5.1 LETTERS OF CREDIT COMMITMENT.
(1) Issuance. Each 4-Year Lender agrees (on a several basis with
the other 4-Year Lenders up to the amount of such Lender's
Commitment under the 4-Year Facility), on the terms and
conditions herein set forth, from time to time on any
Business Day, to issue Letters of Credit under the 4-Year
Facility, through the Fronting Lender for the account of
TELUS prior to the cancellation or termination thereof;
provided that at no time shall the Face Amount of outstanding
Letters of Credit under the 4-Year Facility exceed
collectively C$360 million.
(2) Fronting. All Letters of Credit shall be issued by the
Fronting Lender on behalf of the 4-Year Lenders and for this
purpose:
(a) the Principal Outstanding in respect of such Letters
of Credit shall be considered to be allocated among
the 4-Year Lenders pro rata on the basis of their
respective Commitments under the 4-Year Facility
and, on the issuance of a Letter of Credit under the
4-Year Facility, the Administration Agent shall
advise each of the 4-Year Lenders of their pro rata
share of the liability under such Letter of Credit
having regard to their respective Commitments under
the 4-Year Facility 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;
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(b) for greater certainty and without limiting the
generality of section 12.1, the Principal
Outstanding among the 4-Year 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 the
4-Year 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 TELUS to the Fronting Lender (with a copy of each
such Accommodation Request to the Administration Agent). In addition,
TELUS 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 TELUS in its Accommodation Request. Such Letters
of Credit shall be deemed to have been issued by the 4-Year
Lenders pro rata on the basis of their respective Commitments
under the 4-Year Facility.
(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.
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(3) Text. Prior to the Issue Date, TELUS 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 TELUS (with a copy of the notice to the Administration
Agent) on or before the date on which it intends to honour such
drawing. TELUS (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 TELUS notifies the Fronting Lender and the Administration Agent,
prior to 1:00 p.m. (Toronto time) on the second Business Day following
receipt by TELUS of the notice from the Fronting Lender referred to in
the preceding paragraph, that TELUS intends to reimburse the Fronting
Lender for the amount of such drawing with funds other than the
proceeds of Advances:
(a) TELUS shall be deemed to have given an Accommodation
Request to the Administration Agent requesting the
4-Year 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 TELUS
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 4-Year 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. TELUS shall on the fifth Business Day following
the end of each Financial Quarter and on the termination of
each Letter of Credit issued under the 4-Year Facility pay to
the Administration Agent in relation to
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each such Letter of Credit for the account of the 4-Year
Lenders a fee in respect of each 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, TELUS shall on the fifth Business
Day following the end of each Financial Quarter and on the
termination of the Commitments under the 4-Year Facility pay
to the Administration Agent in relation to Letters of Credit
issued under the 4-Year Facility for the account of the
Fronting Lender a fronting fee in respect of each 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. TELUS shall pay to the Fronting Lender,
upon the issuance, amendment or transfer of each Letter of
Credit, 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 TELUS 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 TELUS 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 4-Year
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 TELUS or an affiliate and the
Beneficiary of such Letter of Credit);
55
(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, TELUS hereby agrees to protect,
indemnify, pay and save the Fronting Lender and each 4-Year
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 the
respective 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 TELUS, on the one hand, and the Fronting
Lender and 4-Year Lenders, on the other hand, TELUS 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,
56
without limitation of the foregoing, neither the Fronting
Lender nor any 4-Year 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 4-Year 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 4-Year 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 4-Year Lender
under any resulting liability to TELUS (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 Final Maturity Date
under the 4-Year Facility and the Administration Agent declaring the
Obligations to be due
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and payable pursuant to section 10.2, and notwithstanding the
expiration date of any outstanding Letters of Credit, an amount equal
to the Face Amount of all outstanding Letters of Credit, and all
accrued and unpaid fees owing by TELUS in respect of the Issuance of
Letters of Credit pursuant to section 5.6, if any, shall thereupon
forthwith become due and payable by TELUS 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.
TELUS 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 TELUS an amount equal to the difference between the amount paid
to the Administration Agent by TELUS pursuant to this section 5.9 and
the aggregate amount paid by the Fronting Lender under such Letter of
Credit.
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ARTICLE 6
CLOSING CONDITIONS
6.1 CLOSING CONDITIONS TO INITIAL AVAILABILITY. The Borrowers shall not be
entitled to an Accommodation under either of the Credit Facilities
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.
(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 and quarterly
unaudited financial statements
59
of TELUS, together with a Compliance Certificate as at March
31, 2004 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 first amended
and restated credit agreement dated for reference May 29,
2002 among TELUS Corporation as Borrower, The
Toronto-Dominion Bank as Administration Agent, and the
Lenders referred to therein 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 the
Administration Agent shall have received a certificate of an
authorized officer of TELUS so certifying to the Lenders.
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(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 under any Credit Facility 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 May 26, 2004, all obligations of the Lenders
hereunder shall forthwith terminate without the necessity of any notice
to the Borrowers or any other person.
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ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Each Borrower (i) represents and warrants to the Lenders as set forth in this
Article 7, (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).
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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 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
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(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, 2003, and its interim
unaudited consolidated financial statements as of and for the period
ended March 31, 2004, 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 dates 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, 2003 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
64
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
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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 only 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;
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(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.
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(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. It 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 such 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
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property used by such 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
69
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
70
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 best 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
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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.
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(2) General. Subject to 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.
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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 Material
Subsidiary 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
74
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,
75
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
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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
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(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
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(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.
79
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
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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
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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 4-Year
Lenders as set forth in this section 12.1(1).
(a) Unless the Swingline Lender and the Majority Lenders
under the 4-Year Facility 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 4-Year
Lenders pursuant to Article 3 to repay to the
Swingline Lender the outstanding Swingline Advances.
The 4-Year 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 4-Year 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 4-Year Facility
reflect their respective Commitments under the
4-Year Facility. 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 TELUS (and for this purpose the Fronting Lender
is irrevocably authorized by TELUS to do so) for a
Borrowing by way of a Prime Rate Advance from the
4-Year Lenders pursuant to Article 3 to reimburse
the Fronting Lender for
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such LC Payment and the foregoing provisions of
this section 12.1(1)(a) shall equally apply to each
such further Advance. Each 4-Year Lender
unconditionally agrees to pay to the Administration
Agent for the account of the Swingline Lender or
the Fronting Lender such 4-Year Lender's rateable
portion of each Advance requested by the Swingline
Lender or the Fronting Lender on behalf of TELUS 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 4-Year 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
TELUS' obligations 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 TELUS.
(c) If a 4-Year 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
83
(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 TELUS 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 4-Year 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 4-Year Lender's participation interest in the
relevant unreimbursed Swingline Advances or LC
Payments (including interest then accrued thereon
and unpaid by TELUS). Without duplication, each
4-Year 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 4-Year 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 4-Year 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 4-Year Lenders
in the event and to the extent the Swingline Lender
or the Fronting Lender has not been reimbursed in
full by TELUS 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 TELUS for any unreimbursed
Swingline Advances or LC Payments in relation to
which other 4-Year Lenders have purchased a
participation interest pursuant to section
12.1(1)(d), or of any other amount from TELUS or any
other person in respect of such payment (other than
pursuant to section 2.1(6)), transfer to such other
4-Year Lender such other 4-Year 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
84
is otherwise required to be returned, such 4-Year
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.
85
(3) Records. The Principal Outstanding and C$ Equivalent
Principal Outstanding under a Credit Facility, 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) and except
as expressly contemplated by section 2.2(3), 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. Except as expressly contemplated by
section 2.2(3), 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 Final Maturity Date for either Credit
Facility 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
86
(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) Credit Facilities. No amendment, waiver or consent shall,
unless approved by the Majority Lenders under a Credit
Facility, affect the rights or obligations of the Lenders
under such Credit Facility if such rights or obligations are
affected in a manner which is different from the rights and
obligations of the Lenders under the other Credit Facility.
(5) 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.
(6) 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.
(7) Other Approvals. For greater certainty, any approval of a
person specifically required by any of sections 12.2(3) to
(6), 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:
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Borrowers
---------
TELUS Corporation or TELUS Communications Inc.
555 Robson Street, Suite 3B
Vancouver, British Columbia
V6B 3K9
Attention: 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
88
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 Facilities, 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
Facilities, this agreement, any other Credit
Facility Document and such confidential information
memorandum 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;
89
(d) advice of counsel with respect to the administration
of or other matters relating to the Credit
Facilities, 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 Facilities 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
90
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.
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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 under the 364-Day
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 a 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.
92
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 one or more of the Credit Facilities 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.
93
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 a Credit
Facility to, or assign all or any part of its rights and
obligations hereunder in respect of such Credit Facility 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:
94
(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 Facilities
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
95
and the same instrument, and may be delivered by a
party by facsimile or similar means of recorded communication.
96
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: /s/ Robert Gardner
------------------------------
Authorized Signatory
Per: /s/ Robert G. McFarlane
------------------------------
Authorized Signatory
TELUS COMMUNICATIONS INC.
Per: /s/ Robert Gardner
------------------------------
Authorized Signatory
Per: /s/ Robert G. McFarlane
------------------------------
Authorized Signatory
ADMINISTRATION AGENT:
--------------------
THE TORONTO-DOMINION BANK
Per: /s/ Joseph Cavanaugh
------------------------------
Authorized Signatory
LENDERS:
-------
THE TORONTO-DOMINION BANK
Per: /s/ Grant Wice
------------------------------
Authorized Signatory
ROYAL BANK OF CANADA
Per: /s/ Sandra Lokoff
------------------------------
Authorized Signatory
CANADIAN IMPERIAL BANK OF COMMERCE
Per: /s/ Steve Nishimura
/s/ Alex Tessier
------------------------------
Authorized Signatory
THE BANK OF NOVA SCOTIA
Per: /s/ Dan Grouix
/s/ Martin Stevenson
------------------------------
Authorized Signatory
BANK OF MONTREAL
Per: /s/ Jerry Kaye
------------------------------
Authorized Signatory
JPMORGAN CHASE BANK, TORONTO BRANCH
Per: /s/ Christine Chan
------------------------------
Authorized Signatory
CITIBANK, N.A. CANADIAN BRANCH
Per: /s/ Daljeet Lamba
------------------------------
Authorized Signatory
NATIONAL BANK OF CANADA
Per: /s/ Geoffrey Scott
------------------------------
Authorized Signatory
Per: /s/ Brian Smith
------------------------------
Authorized Signatory
SOCIETE GENERALE (CANADA)
Per: /s/ Georges Benay
/s/ Dominic Au-Yeung
------------------------------
Authorized Signatory
CONGRESS FINANCIAL CORPORATION
(CANADA)
Per: /s/ H. Rosenfeld
------------------------------
Authorized Signatory
BANK OF TOKYO-MITSUBISHI (CANADA)
Per: /s/ Davis J. Stewart
------------------------------
Authorized Signatory
UNITED OVERSEAS BANK LIMITED
Per: /s/ K. Jin Koh
------------------------------
Authorized Signatory
MIZUHO CORPORATE BANK (CANADA)
Per: /s/ Rob Mackinnon
------------------------------
Authorized Signatory
SUMITOMO MITSUI BANKING CORPORATION
OF CANADA
Per: /s/ Elwood Langley
------------------------------
Authorized Signatory
HSBC BANK CANADA
Per: /s/ Judi C. Wood
------------------------------
Authorized Signatory
BNP PARIBAS (CANADA)
Per: /s/ Don R. Lee
/s/ Andrew Sclater
------------------------------
Authorized Signatory
CAISSE CENTRALE DESJARDINS
Per: /s/ Andre Roy
/s/ Francine Champoux
------------------------------
Authorized Signatory
BANK OF CHINA (CANADA)
Per: /s/ Lan Li
/s/ Dashu Zhu
------------------------------
Authorized Signatory
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.
Date: May 17, 2004
TELUS CORPORATION
By: /s/ Audrey T. Ho
-------------------------------------
Name: Audrey T. Ho
Title: Vice President, Legal Services
and General Counsel