Exhibit 10.1
THE MANUFACTURERS LIFE
INSURANCE COMPANY
- and -
PRIMUS TELECOMMUNICATIONS
CANADA INC.
- and -
3082833 NOVA SCOTIA COMPANY
AMENDED AND RESTATED LOAN AGREEMENT
FOGLER, RUBINOFF LLP
Suite 4400, Royal Trust Tower
Toronto-Dominion Centre
Toronto, Ontario
M5K 1G8
TABLE OF CONTENTS
Article 1 INTERPRETATION
1.1
INTERPRETATION
1.2
SCHEDULES
1.3
ACCOUNTING PRINCIPLES
1.4
BUSINESS DAY
1.5
PERMITTED LIENS
Article 2 THE LOAN
2.1
CREDIT
2.2
ADVANCE
2.3
LETTERS OF CREDIT
Article 3 PAYMENT OF PRINCIPAL AND INTEREST
3.1
PAYMENT OF INTEREST
3.2
INTEREST ON CHARGES
3.3
YEAR
3.4
MAXIMUM INTEREST RATE
3.5
PLACE AND MANNER OF PAYMENT
3.6
NO SET-OFF
Article 4 PREPAYMENT AND REPAYMENT
4.1
PREPAYMENT OF PRINCIPAL
4.2
NOTICE OF PREPAYMENT
4.3
REPAYMENT OF PRINCIPAL
Article 5 SECURITY
5.1
SECURITY FOR ADVANCE
5.2
NO PREJUDICE
5.3
FORM OF SECURITY
5.4
REGISTRATION OF SECURITY
5.5
RANKING OF SECURITY
5.6
SUPPLEMENTAL SECURITY
5.7
PARAMOUNTCY
5.8
PROHIBITED SECURITY
5.9
CHANGE OF ENTITY
Article 6 REPRESENTATIONS AND WARRANTIES
6.1
REPRESENTATIONS AND WARRANTIES
6.2
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Article 7 CONDITIONS OF CLOSING
7.1
CLOSING CONDITIONS
7.2
CONDITIONS FOR SUBSEQUENT ADVANCES
7.3
MATERIAL INACCURACY
7.4
CONDITIONS SOLELY FOR LENDERS' BENEFIT
Article 8 COVENANTS
8.1
POSITIVE COVENANTS
8.2
NEGATIVE COVENANTS
8.3
AGENT ENTITLED TO PERFORM COVENANTS
8.4
CERTAIN PERMITTED TRANSACTIONS
i
Article 9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
9.1
SURVIVAL
Article 10 EVENTS OF DEFAULT
10.1
DEFAULT
10.2
ACCELERATION
10.3
CONSULTANT
10.4
REMEDIES CUMULATIVE
10.5
BENEFIT OF SECURITY; SET-OFF; SHARING OF PAYMENT
Article 11 FEES
11.1
EXPENSES
11.2
ARRANGEMENT FEE
Article 12 THE AGENT
12.1
APPOINTMENT
12.2
INDEMNITY FROM LENDERS
12.3
EXCULPATION
12.4
RELIANCE ON INFORMATION
12.5
KNOWLEDGE AND REQUIRED ACTION
12.6
REQUEST FOR INSTRUCTIONS
12.7
EXCHANGE OF INFORMATION
12.8
THE AGENT, INDIVIDUALLY
12.9
RESIGNATION AND TERMINATION
12.10
ACTIONS BY LENDERS
12.11
PROVISIONS FOR BENEFIT OF LENDERS ONLY
Article 13 GENERAL
13.1
NO WAIVER OF RIGHTS
13.2
NO WAIVER OF DEFAULTS
13.3
NOTICES
13.4
METHOD OF PAYMENT
13.5
SUCCESSORS AND ASSIGNS
13.6
GOVERNING LAW
13.7
ENTIRE AGREEMENT
13.8
MODIFICATION
13.9
HEADINGS
13.10
NUMBER
13.11
WORDS AND PHRASES
13.12
PERMISSIBLE FORMS OF WRITING
13.13
STATUTORY REFERENCES
13.14
SEVERABLE PROVISIONS
13.15
EXECUTION OF ADDITIONAL DOCUMENTS
13.16
OTHER DEFINITIONAL TERMS
13.17
COUNTERPARTS
13.18
CONFLICT
13.19
CONFIDENTIALITY
ii
AMENDED AND RESTATED LOAN AGREEMENT
THIS AGREEMENT dated as of the
day of April, 2004
AMONG:
PRIMUS TELECOMMUNICATIONS CANADA INC.,
a company amalgamated under the laws of the Province of Ontario
(hereinafter called the "Borrower")
- and -
3082833 NOVA SCOTIA COMPANY
a unlimited liability company amalgamated under the laws of Nova Scotia
(hereinafter called the "Shareholder")
- and -
THE MANUFACTURERS LIFE INSURANCE COMPANY,
a corporation incorporated under the laws of Canada and each other financial
institution or person which is now or hereafter becomes a signatory hereto
(hereinafter called the "Lenders")
- and -
THE MANUFACTURERS LIFE INSURANCE COMPANY,
a corporation incorporated under the laws of Canada
(hereinafter called the "Agent")
WHEREAS a predecessor to the Borrower, a predecessor to the Shareholder, the
Lenders and the Agent entered into a loan