EX-4.9 5 file004.txt LETTER OF CREDIT Exhibit 4.9 Peter R. Car Senior Business Advisor 2nd Floor - 400 Burrard Street Vancouver, B.C. V60 3A6 July 21, 2000 DSI Datotech Systems Inc. 712-525 Seymour Street Vancouver, B.C. V6B 3H7 Attention: Elli Segev Dear Sirs: We, Canadian Imperial Bank of Commerce ("CIBC"), are pleased to establish the following Credits for you, our customer. Credit A: Operating Line Credit Limit: $600,000. Description and Rate: A revolving demand credit, for general business purposes, having the following parts: (1) Canadian dollar loans and overdrafts. The Interest Rate is as follows: Prime Rate plus 0% per year. (2) U.S. dollar loans and overdrafts. Loans and overdrafts under this part of Credit A may not at any time excee US$50,000. The Interest Rate is as follows: U.S. Base Rate plus 0% per year (3) Aerogold VISA cards to be issued to Company officials. Total authorization under this part of Credit A may not at any time exceed CAD $200,000. Subject to standard VISA terms and conditions. A margin is to be established wherein we will lend 100% against GIC's, B/A's, Treasury Bills and 90% against Bonds. Equities are not to be included. Tel: 665-1165 Fax: 665-2838 Security Security: The following security is required: Liquid: Liquid security as follows: Formal pledge of the following Money Market Investments to be held at CIBC Wood Gundy in the name of CIBC in Trust for DSI Datotech Systems Inc., for not less than an amount to provide coverage as required as per the above established margins. This pledge is to be registered with the PPSA registry. (Note that you may from time to time substitute acceptable Money Market Investments and/or Negotiable Securities for these ones.) AEROGOLD VISA cards to be secured by: Guarantee: Guarantee from DSI Datotech Systems Inc. in an amount that is unlimited and supported by the liquid security noted above. Reporting Requirements Reporting Requirements: (1) Within 90 days of each fiscal year-end, financial statements for that fiscal year on an review basis. Other Provisions A cleanup period of once every three months is to be established and deposits are to be made monthly to ensure interest payments are current. CONDITION PRECEDENT A letter is to be obtained from the company's solicitor confirming the pledged funds can be pledged and there are no trust implications associated with these funds. Default Interest Rate: Currently 21% per year. If the Credit Limit of a Credit, or the Credit Limit of part of a Credit, is exceeded at any time, interest at the Default Rate is calculated on that excess amount. In connection with any amounts in foreign currency, see "Foreign Currency Conversion" in the Attached Schedule. Next Scheduled Review Date: February 28, 2001 Standard Credit Terms: The attached Schedule - Standard Credit Terms forms part of this Agreement. General: You agree that (a) you have read this Agreement (including the Schedule - Standard Credit Terms), (b) CIBC has explained it to you, and (c) you understand it. DSI Datotech Systems Inc. July 21, 2000 Please indicate your acceptance of these terms by returning a signed copy of this Agreement. If we do not receive a signed copy by July 31, 2000, then this offer will expire. Upon acceptance, this Agreement replaces the existing credit agreement dated July 17, 2000, between you and CIBC. Outstanding amounts land security) under that Agreement will be covered by this Agreement it being the intention that the obligations under this Agreement are not a substitution for the obligations under the existing credit agreement and that the security under that agreement continues to secure the obligations under this Agreement. Yours truly, Canadian Imperial Bank of Commerce by: /s/Peter R. Car Peter R. Car Account Manager Phone no.: (604) 665-1165 Fax no.: (604) 665-2838 Acknowledgement: The undersigned certifies that all information provided to CIBC is true, and acknowledges receipt of a copy of this Agreement (including any Schedules referred to above). Accepted this 24 day of July, 2000). DSI Datotech Systems Inc. By: /s/ Elli Segev ----------------------- Title: President & CEO By: /s/ Betsy Shimokura ----------------------- Title: Corporate Secretary 3 of 3 CIBC [LOGO] Schedule - Standard Credit Terms ARTICLE 1 - GENERAL Interest Rate. You will pay interest on each credit at nominal rates per year equal to: (a) for amounts above the credit Limit of a credit or a part of a credit or for amounts that are not paid when due, the Default Interest Rate, and (b) for any other amounts, the rate specified in this Agreement. 1.2 Variable interest. Each variable interest rate provided for under this Agreement will change automatically, without notice, whenever the Prime Rate or the u.s. Base Rate, as the case may be, changes. 1.3 Payment of interest. Interest is calculated on the daily balance of the credit at the end of each day. Interest is due once a month, unless the Agreement states otherwise. unless you have made other arrangements with us, we will automatically debit your Operating Account for interest amounts owing. If your Operating Account is in overdraft and you do not deposit to the account an amount equal to the monthly interest payment, the effect is that we will be charging interest on overdue interest (which is known as compounding). unpaid interest continues to compound whether or not we have demanded payment from you or started a legal action, ____ get judgment, against you. 1.4 Default Interest. To determine whether Default Interest is to be charged, the following rules apply: (a) Default Interest will be charged on the amount that exceeds the Credit Limit of any particular Credit. (b) If there are several parts of a Credit. Default Interest will be charged if the Credit Limit of a particular part is exceeded. For example, if Credit A's limit is $250,000. and the limit of one part is $100,000 and the limit of that part is exceeded by $25,000. Default Interest will be charged on that $25,000 excess, even if the total amount outstanding under Credit A is less than $250,000. 1.5 Fees. You will pay CIBC's fees for each credit as out lined in the Letter. You will also reimburse us for all reasonable fees (including legal fees) and out-of-pocket expenses incurred in registering any security, and in enforcing our rights under this Agreement or any security. We will automatically debit your Operating Account for fee amounts owing. 1.6 Our rights re demand credits. At CIBC, we believe that the banker-customer relationship is based on mutual trust and respect. It is important for us to know all the relevant information (whether good or bad) about your business. CIBC is itself a business. Managing risks and monitoring our customers' ability to repay is critical to us. We can only continue to lend when we feel that we are likely to be repaid. As a result, if you do something that jeopardizes that relationship, or if we no longer feel that you are likely to repay all amounts borrowed, we may have to act. We may decide to act, for example, because of something you have done, information we receive about your business, or changes to the economy that affect your business. Some of the actions that we may decide to take include requiring you to give us more financial information, negotiating a change in the interest rate or fees, or asking you to get further accounting assistance, put more cash into the business, provide more security, or produce a satisfactory business plan. It is important to us that your business succeeds. We may, however, at our discretion, demand immediate repayment of any outstanding amounts under any demand credit. We may also, at any time and for any cause, cancel the unused portion of any demand Credit. under normal circumstances, however, we will give you 30 days' notice of any of these actions. DSI Datotech Systems Inc. 1 July 21, 2000 1.7 Payments. If any payment is due on a day other than a Business Day, then the payment is due on the next Business Day. 1.8 Applying money received. If you have not made payments as required by this Agreement. or if you have failed to satisfy any term of this Agreement (or any other agreement you have that relates to this Agreement), or at any time before default but after we have given you appropriate notice, we may decide how to apply any money that we receive. This means that we may choose which credit to apply the money against, or what mix of principal, interest, fees and overdue amounts within any Credit will be paid. 1.9 Information requirements. we may from time to time reasonably require you to provide further information about your business. We may require information from you to be in a form acceptable to us. 1.10 Insurance. You will keep all your business assets and property insured (to the full insurable value) against loss or damage by fire and all other risks usual for property such as yours (plus for any other risks we may reasonably require). If we request, these policies will include a loss payee clause land if you are giving us mortgage security, a mortgagee clause). As further security, you assign all insurance proceeds to us. If we ask, you will give us either the policies themselves or adequate evidence of their existence. If your insurance coverage for any reason stops, we may (but do not have to) insure the property. We will automatically debit your Operating Account for these amounts. Finally, you will notify us immediately of any loss or damage to the property. 1.11 Environmental. You will carry on your business, and maintain your assets and property, in accordance with all applicable environmental laws and regulations. If (a) there is any release, deposit, discharge or disposal of pollutants of any sort (collectively, a 'Discharge') in connection with either your business or your property, and we pay any fines or for any clean-up, or (b) we suffer any loss or damage as a result of any Discharge, you will reimburse CIBC, its directors, officers, employees and agents for any and all losses, damages, fines, costs and other amounts (including amounts spent preparing any necessary environmental assessment or other reports, or defending any lawsuits) that result. If we ask, you will defend any lawsuits, investigations or prosecutions brought against CIBC or any of its directors, officers, employees and agents in connection with any Discharge. Your obligation to us under this section continues even after all Credits have been repaid and this Agreement has terminated. 1.12 Consent to release information. We may from time to time give any credit or other information about you to, or receive such information from, (a) any financial institution, credit reporting agency, rating agency or credit bureau. (b) any person, firm or corporation with whom you may have or propose to have financial dealings, and (c) any person, firm or corporation in connection with any dealings you have or propose to have with us. You agree that we may use that information to establish and maintain your relationship with us and to offer any services as permitted by law, including services and products offered by our subsidiaries when it is considered that this may be suitable to you. 1.13 Our pricing policy. Fees, interest rates and other charges for your banking arrangements are dependent upon each other. If you decide to cancel any of these arrangements, you will have to pay us any increased or added fees, interest rates and charges we determine and notify you of. These increased or added amounts are effective from the date of the changes that you make. 1.14 Proof of debt. This Agreement provides the proof, between CIBC and you, of the credit made available to you. There may be times when the type of Credit you have requires you to sign additional documents. Throughout the time that we provide you credit under this Agreement, our loan accounting records will provide complete proof of all terms and conditions of your credit Isuch as principal loan balances, interest calculations, and payment dates). 1.15 Renewals of this Agreement. This Agreement will remain in effect for your Credits for as long as they remain unchanged. we have shown a Next Scheduled Review Date in the Letter. If there are no changes to the Credits this Agreement will continue to apply, and you will not need to sign anything further. If there are any changes, we will provide you with either an amending agreement, or a new replacement Letter, for you to sign. 1.16 Confidentiality. The terms of this Agreement are confidential between you and CIBC. You therefore agree not to disclose the contents of this Agreement to anyone except your professional advisors. 1.17 Pre-conditions. You may use the Credits granted to you under this Agreement only if: (a) we have received properly signed copies of all documentation that we may require in connection with the operation of your accounts and your ability to borrow and give security; (b) all the required security has been received and registered to our satisfaction; (c) any special provisions or conditions set forth in the Letter have been complied with; and (d) if applicable, you have given us the required number of days notice for a drawing under a credit. 1.18 Notices. We may give you any notice in person or by telephone, or by letter that is sent either by fax or by mail. 1.19 Use of the Operating Line. You will use your Operating Line only for your business operating cash needs. You are responsible for all debits from the Operating Account that you have either initiated Isuch as cheques, loan payments, pre-authorized debits, etc.) or authorized us to make. Payments are made by making deposits to the Operating Account. You may not at any time exceed the Credit Limit. We may, without notice to you, return any debit from the Operating Account that, if paid, would result in the Credit Limit being exceeded, unless you have made prior arrangements with us. If we pay any of these debits, you must repay us immediately the amount by which the Credit Limit is exceeded. 1.20 Foreign Currency Conversion. If this Agreement includes foreign currency Credits, then currency changes may affect whether either the Credit Limit of any Credit or the Overall Credit Limit has been exceeded. (a) See section 1 .4 for the general rules on how Default Interest is calculated. (b) To determine the Overall Credit Limit, all foreign currency amounts are converted to Canadian dollars, even if the Credit Limits of any particular Credits are quoted directly in a foreign currency (such as u.s. dollars). No matter how the Credit Limit of a particular Credit is quoted, therefore, currency fluctuations can affect whether the Overall Credit Limit has been exceeded. For example, if Credits X and Y have Credit Limits of C$100,000 and US$50,000, respectively, with an Overall Credit Limit of C$175,000, if Credit X is at C$90,000 and Credit Y is at US$45,000, Default Interest will be charged only if, after converting the US dollar amount, the Overall Credit Limit is exceeded. (c) Whether the Credit Limit of a particular Credit has been exceeded will depend on how the Credit Limit is quoted, as described below. (d) If the Credit Limit is quoted as, for example, the u.s. dollar equivalent of a Canadian dollar amount, daily exchange rate fluctuations may affect whether that Credit Limit has been exceeded. If, on the other hand, the Credit Limit is quoted in a foreign currency (for example, directly in US dollars), whether that Credit Limit has been exceeded is determined by reference only to the closing balance of that Credit in that currency. (e) For example, assume an outstanding balance of a Credit on a particular day of us$200,000. If the Credit Limit is stated as "the us dollar equivalent of C$275,000", then whether the Credit Limit of that Credit has been exceeded will depend on the value of the Canadian dollar on that day. If the conversion calculations determine that the outstanding balance is under the Credit Limit, a drop in the value of the Canadian dollar the next day (without any change in the balance) may have the effect of putting that Credit over its Credit Limit. If, on the other hand, the Credit Limit is stated as "us$200,000', the Credit Limit is not exceeded, and a drop in the value of the dollar the next day will not change that (although the Overall Credit Limit may be affected). (f) Conversion calculations are done on the closing daily balance of the Credit. The conversion factor used is the mid-point between the buying and selling rate offered by CIBC for that currency on the conversion date. ARTICLE 2 - DEFINITIONS 2.1 Definitions. In this Agreement, the following terms have the following meanings: "Base Rate Loan" means a U.S. dollar loan on which interest is calculated by reference to the u.s. Base Rate. "Business Day" means any day (other than a Saturday or a Sunday) that the CISC Branch/Centre is open for business. "CIBC Branch/Centre" means the CIBC branch or banking centre noted on the first page of this Agreement, as changed from time to time by agreement between the parties. "Credit" means any credit referred to in the Letter, and if there are two or more parts to a Credit, "Credit" includes reference to each part. "Credit Limit" of any Credit means the amount specified in the Letter as its Credit Limit, and if there are two or more parts to a Credit, "Credit Limit" includes reference to each such part. "Default Interest Rate", unless otherwise defined in the Letter, means the Standard Overdraft Rate. "Letter" means the letter agreement between you and CIBC to which this Schedule and any other Schedules are attached. "Money Market Investments" means instruments such as GICs, bankers' acceptances, T-bills, etc. "Negotiable Securities" means securities traded on a publicly recognized securities exchange in Canada or the United States, each of which has a value at all times greater than the minimum value from time to time specified by us. "Operating Account" means the account that you normally use for the day-to-day cash needs of your business, and may be either or both of a Canadian dollar and a U.S. dollar account. "Prime Rate" means the variable reference rate of interest per year declared by CIBC from time to time to be its prime rate for Canadian dollar loans made by CIBC in Canada. "Prime Rate Loan" means a Canadian dollar loan on which interest is calculated by reference to Prime Rate. "Standard Overdraft Rate" means the variable reference interest rate per year declared by CIBC from time to time to be its standard overdraft rate on overdrafts in Canadian or U.S. dollar accounts maintained with CIBC in Canada. "U.S. Base Rate" means the variable reference interest rate per year as declared by CIBC from time to time to be its base rate for U.S. dollar loans made by CIBC in Canada. 2