CHC HELICOPTER CORPORATION AND THE OTHER OBLIGORS FROM TIME TO TIME PARTY TO THIS AGREEMENT AND THE LENDERS FROM TIME TO TIME PARTY TO THIS AGREEMENT AND THE BANK OF NOVA SCOTIA as Administrative Agent
EXHIBIT
4.4
FINAL
CHC
HELICOPTER CORPORATION AND THE OTHER
OBLIGORS
FROM TIME TO TIME
PARTY
TO THIS AGREEMENT
AND
THE
LENDERS FROM TIME TO TIME
PARTY
TO THIS AGREEMENT
AND
THE
BANK OF NOVA SCOTIA
as
Administrative Agent
|
SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
DATED
AS OF 22 DECEMBER 2004
|
XXXXXX
XXXXXX XXXXXXX LLP
TABLE
OF CONTENTS
|
ARTICLE
I DEFINED TERMS
|
2
|
|
|
1.1
|
Defined
Terms
|
2
|
|
1.2
|
Amendment
and Restatement
|
26
|
|
1.3
|
Confirmation
of Security
|
26
|
|
ARTICLE
II CREDIT A
|
28
|
|
|
2.1
|
Amount
and Availment Options
|
28
|
|
2.2
|
Right
to Re-Borrow
|
29
|
|
2.3
|
Use
of Credit A
|
29
|
|
2.4
|
Term
and Repayment
|
29
|
|
2.5
|
Interest
Rates and Fees
|
30
|
|
2.6
|
Standby
Fees
|
30
|
|
2.7
|
Other
Fees Payable to Lenders and Agent
|
30
|
|
ARTICLE
III CREDIT B
|
30
|
|
|
3.1
|
Amount
and Availment Options
|
30
|
|
3.2
|
Revolving
Credit
|
31
|
|
3.3
|
Use
of Credit B
|
31
|
|
3.4
|
Term
and Repayment
|
31
|
|
3.5
|
Interest
Rates and Fees
|
31
|
|
3.6
|
Standby
Fees
|
32
|
|
ARTICLE
IV CREDIT C
|
32
|
|
|
4.1
|
Amount
and Availment Options
|
32
|
|
4.2
|
Non-Revolving
Credit
|
32
|
|
4.3
|
Use
of Credit C
|
32
|
|
4.4
|
Term
and Repayment
|
32
|
|
4.5
|
Interest
Rates and Fees
|
33
|
|
ARTICLE
V CREDIT E
|
33
|
|
|
5.1
|
Amount
and Availment Options
|
33
|
|
5.2
|
Non-Revolving
Credit
|
34
|
|
5.3
|
Use
of Credit E
|
34
|
|
5.4
|
Term
and Repayment
|
34
|
|
5.5
|
Interest
Rates and Fees
|
34
|
|
5.6
|
Prepayments
of Credits
|
34
|
|
ARTICLE
VI SECURITY AND EXCHANGE RATE FLUCTUATIONS
|
36
|
|
|
6.1
|
Security
|
36
|
|
6.2
|
Obligations
Secured by the Security
|
39
|
|
6.3
|
Exchange
Rate Fluctuations
|
40
|
|
6.4
|
Borrowing
Base
|
41
|
|
ARTICLE
VII DISBURSEMENT CONDITIONS
|
42
|
|
|
7.1
|
Conditions
Precedent to Initial Advance
|
42
|
|
7.2
|
Conditions
Precedent to all Advances
|
44
|
|
ARTICLE
VIII ADVANCES
|
45
|
|
|
8.1
|
Lenders'
Obligations Relating to L/Cs and Credits A and B
|
45
|
|
8.2
|
Adjustment
of Applicable Percentages for Specific Credits
|
46
|
|
8.3
|
Exceptions
Regarding Particular Credits
|
46
|
|
8.4
|
Evidence
of Indebtedness
|
47
|
|
8.5
|
Conversions
|
48
|
|
8.6
|
Notice
of Advances and Payments
|
48
|
|
8.7
|
Prepayments
and Reductions
|
48
|
|
8.8
|
Prime
Rate, Base Rate and LIBOR Advances
|
49
|
|
8.9
|
LIBOR
Periods
|
50
|
|
8.10
|
Co-ordination
of Prime Rate, Base Rate and LIBOR Advances
|
50
|
|
8.11
|
Execution
of Bankers' Acceptances
|
51
|
|
8.12
|
Reference
Lenders
|
51
|
|
8.13
|
Sale
of Bankers' Acceptances
|
52
|
|
8.14
|
Size
and Maturity of Bankers' Acceptances and Rollovers
|
52
|
|
8.15
|
Co-ordination
of BA Advances
|
53
|
|
8.16
|
Payment
of Bankers' Acceptances
|
54
|
|
8.17
|
Deemed
Advance - Bankers' Acceptances
|
55
|
|
8.18
|
Waiver
|
55
|
|
8.19
|
Degree
of Care
|
55
|
|
8.20
|
Obligations
Absolute
|
55
|
|
8.21
|
Shortfall
on Drawdowns, Rollovers and Conversions
|
55
|
|
8.22
|
Prohibited
Use of Bankers' Acceptances and L/Cs
|
56
|
|
8.23
|
Issuance
and Maturity of L/Cs
|
56
|
|
8.24
|
Payment
of L/C Fees
|
57
|
|
8.25
|
Payment
of L/Cs
|
57
|
|
8.26
|
Deemed
Advance - L/Cs
|
58
|
|
8.27
|
Failure
of Lender to Fund
|
58
|
|
8.28
|
Payments
by the Borrowers
|
59
|
|
8.29
|
Payments
by Agent
|
59
|
|
8.30
|
Prohibited
Rates of Interest
|
60
|
|
ARTICLE
IX REPRESENTATIONS AND WARRANTIES
|
61
|
|
|
9.1
|
Representations
and Warranties
|
61
|
|
ARTICLE
X COVENANTS AND CONDITIONS
|
66
|
|
|
10.1
|
Intercompany
Obligations
|
66
|
|
10.2
|
Financial
Covenants
|
67
|
|
10.3
|
Positive
Covenants
|
67
|
|
10.4
|
Reporting
and Notice Requirements
|
70
|
|
10.5
|
Ownership
of the Obligors
|
73
|
|
10.6
|
Negative
Covenants
|
73
|
|
10.7
|
Payments
by CHC
|
80
|
|
10.8
|
Limits
on Certain Obligors
|
80
|
|
10.9
|
Use
of Insurance Proceeds
|
80
|
|
10.10
|
Classification
of Advances for Sub Debt Indenture
|
81
|
|
ARTICLE
XI DEFAULT
|
82
|
|
|
11.1
|
Events
of Default
|
82
|
|
11.2
|
Acceleration
and Termination of Rights
|
84
|
|
11.3
|
Payment
of Bankers' Acceptances and L/Cs
|
85
|
|
11.4
|
Remedies
|
85
|
|
11.5
|
Saving
|
85
|
|
11.6
|
Perform
Obligations
|
86
|
|
11.7
|
Third
Parties
|
86
|
|
11.8
|
Power
of Attorney
|
86
|
|
11.9
|
Remedies
Cumulative
|
86
|
|
ARTICLE
XII ADDITIONAL AGENCY PROVISIONS
|
87
|
|
|
12.1
|
Authorization
of Agent
|
87
|
|
12.2
|
Administration
of the Credits and Lender Consents
|
87
|
|
12.3
|
Acknowledgements,
Representations and Covenants of Lenders
|
90
|
|
12.4
|
Provisions
Operative Between Lenders and Agent Only
|
90
|
|
ARTICLE
XIII MISCELLANEOUS PROVISIONS
|
91
|
|
|
13.1
|
Headings
and Table of Contents
|
91
|
|
13.2
|
Accounting
Terms
|
91
|
|
13.3
|
Capitalized
Terms
|
91
|
|
13.4
|
Severability
|
91
|
|
13.5
|
Number
and Gender
|
91
|
|
13.6
|
Amendment,
Supplement or Waiver
|
91
|
|
13.7
|
Governing
Law and Agent for Service
|
92
|
|
13.8
|
This
Agreement to Govern
|
92
|
|
13.9
|
Permitted
Encumbrances
|
92
|
|
13.10
|
Currency
|
92
|
|
13.11
|
Liability
of Lenders
|
92
|
|
13.12
|
Interest
on Miscellaneous Amounts
|
93
|
|
13.13
|
Currency
Indemnity
|
93
|
|
13.14
|
Address
for Notice
|
93
|
|
13.15
|
Time
of the Essence
|
94
|
|
13.16
|
Further
Assurances
|
94
|
|
13.17
|
Term
of Agreement; Survival
|
94
|
|
13.18
|
Payments
on Business Day
|
94
|
|
13.19
|
Entire
Agreement
|
94
|
|
13.20
|
Date
of Agreement
|
94
|
|
SCHEDULE
A
|
-
|
NOTICE
OF ADVANCE, PAYMENT, ROLLOVER OR CONVERSION
|
|
SCHEDULE
B
|
-
|
AGREEMENT
OF NEW RESTRICTED SUBSIDIARY
|
|
SCHEDULE
C
|
-
|
REPORTING
CERTIFICATE
|
|
SCHEDULE
D
|
-
|
MODEL
CREDIT AGREEMENT PROVISIONS
|
|
SCHEDULE
E
|
-
|
APPLICABLE
PERCENTAGES OF LENDERS
|
|
SCHEDULE
F
|
-
|
DETAILS
OF CAPITAL STOCK, PROPERTY ETC.
|
|
SCHEDULE
G
|
-
|
OTHER
SECURED OBLIGATIONS
|
|
SCHEDULE
H
|
BORROWING
BASE CALCULATION
|
|
|
SCHEDULE
I
|
-
|
LOCATIONS
OF AIRCRAFT
|
|
SCHEDULE
J
|
-
|
LIMITATIONS
ON CERTAIN OBLIGORS AND OTHERS
|
|
SCHEDULE
K
|
-
|
RESTRICTED
INTERCOMPANY OBLIGATIONS
|
|
SCHEDULE
L
|
-
|
SPECIAL
REQUIREMENTS REGARDING AIRCRAFT
|
|
SCHEDULE
M
|
-
|
OBLIGORS
|
THIS
SECOND AMENDED AND RESTATED CREDIT AGREEMENT is made as of 22 December
0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION AND THE OTHER
OBLIGORS
FROM TIME TO TIME
PARTY
TO THIS AGREEMENT
-
and -
THE
LENDERS FROM TIME TO TIME
PARTY
TO THIS AGREEMENT
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties (either originally or by having
signed a supplemental agreement or, in the case of certain Lenders, being party
to an assignment agreement) to an amended and restated credit agreement dated
as
of 5 July 2000, which amended and restated a credit agreement dated as
of 2 August 1999, as previously amended and supplemented, and which
was in turn amended by a first amending agreement dated as of
11 October 2000, a second amending agreement and consent dated as of
31 October 2000, a third amending agreement dated as of
15 December 2000, a fourth amending agreement dated as of
16 July 2001, a fifth amending agreement dated as of
29 March 2002, a sixth amending agreement and consent dated as of
29 April 2002, a seventh amending agreement dated as of
4 July 2002, an eighth amending agreement dated as of
31 July 2002, a ninth amending agreement dated as of 6 March 2003, a
tenth amending agreement dated as of 13 February 2004, an eleventh amending
agreement dated as of 21 April 2004, a twelfth amending agreement dated as
of 22
April 2004 and a thirteenth amending agreement dated as of 16 August 2004 and
by
other consents by the Lenders from time to time (as amended, supplemented and
restated, the "Existing Credit Agreement").
B. The
Lenders have provided commitments to CHC Helicopter Corporation to extend the
term of the credits established in the Existing Credit Agreement, to the extent
they have not been repaid and to provide an increased revolving
credit.
C. The
Existing Credit Agreement contemplates that it may be amended and
restated. The parties are entering into this Agreement to amend and
restate the Existing Credit Agreement and provide for the terms of the
continuing credits.
THEREFORE,
for value received, and intending to be legally bound by this Agreement, the
parties agree that the Existing Credit Agreement is hereby amended and restated
so that, as amended and restated, it reads as follows:
ARTICLE
I
DEFINED
TERMS
|
1.1
|
Defined
Terms
|
In
this Agreement, unless something in the subject matter or context is
inconsistent therewith:
|
1.1.1
|
"Additional
Borrower" means CHII and any Obligor other than CHC and CHII that
may be designated by CHC as an Additional Borrower from time to time
with
the consent of the Required Lenders and after delivery of such guarantees
and other Security as the Required Lenders may reasonably
require.
|
|
1.1.2
|
"Adjusted
Total Debt Ratio" means, at any time, the ratio calculated by
dividing (a) the Total Debt plus, without duplication, the Asset
Value Guarantee Exposure if any plus, for any Lease to which an Obligor
is
a party that is not included within Total Debt, the least of (i) 6.6
times the total of all payments made in respect of the Lease during
CHC's
four most recently completed fiscal quarters, (ii) the aggregate of
all remaining payments during the term of the Lease and any purchase
option or other payment due on termination of the Lease, and
(iii) the purchase option price at which the Obligor could at that
time promptly acquire the full residual title to the Leased aircraft,
free
of the Lease, by (b) the aggregate of EBITDA plus (to the extent not
included in EBITDA) the total of all payments made by Obligors in
respect
of Leases, in each case for CHC's four most recently completed fiscal
quarters.
|
|
1.1.3
|
"Administrative
Questionnaire" has the meaning defined in the
Provisions.
|
|
1.1.4
|
"Advance"
means an availment of a Credit by a Borrower by way of Prime Rate
Advance,
Base Rate Advance, acceptance of Bankers' Acceptances, L/C or LIBOR
Advance, including deemed Advances and conversions, renewals and
rollovers
of existing Advances, and any reference relating to the amount of
Advances
shall mean the sum of all outstanding Prime Rate Advances, Base Rate
Advances and LIBOR Advances, plus the face amount of all outstanding
Bankers' Acceptances and L/Cs.
|
|
1.1.5
|
"Affiliate"
has the meaning defined in the
Provisions.
|
-
2
-
|
1.1.6
|
"Agent"
or "Administrative Agent" means BNS in its role as
administrative agent for the Lenders, and any successor Agent appointed
in
accordance with this Agreement.
|
|
1.1.7
|
"Agreement"
means this Agreement and any Schedules hereto, including the Provisions,
as amended, supplemented, restated and replaced from time to
time.
|
|
1.1.8
|
"Aircraft"
means helicopters and fixed wing aircraft, including all Parts from
time
to time incorporated or installed in, attached to or forming part
of such
aircraft.
|
|
1.1.9
|
"Applicable
Law" has the meaning defined in the
Provisions.
|
|
1.1.10
|
"Applicable
Percentage" has the meaning defined in the
Provisions. Without limiting the Provisions, depending on the
context, Applicable Percentage may refer to a Lender's position either
with respect to all Credits or any particular Credit. Each
Lender's Applicable Percentage is set out on SCHEDULE E, as amended
from
time to time as Applicable Percentages change in accordance with
this
Agreement.
|
|
1.1.11
|
"Approved
Currencies" means Canadian Dollars, US Dollars, Euros, British
Pounds and other currencies to be specified from time to time and
agreed
to by all Lenders requested to make Advances in those currencies,
which
are readily available to those Lenders and are freely transferable
into US
Dollars, and in which the Obligors have significant revenues, and
"Approved Currency" means any one of
them.
|
|
1.1.12
|
"Approved
Fund" has the meaning defined in the
Provisions.
|
|
1.1.13
|
"Asset
Value Guarantee" means a guarantee by an Obligor of the minimum
value of an Aircraft upon the termination of an operating lease of
that
Aircraft that is permitted under Section
1.1.114(n).
|
|
1.1.14
|
"Asset
Value Guarantee Exposure" means, at any time, the aggregate
of:
|
|
|
(a)
|
the
estimated liability of all Obligors under all outstanding Asset Value
Guarantees where the value of the relevant Aircraft is or is reasonably
expected to be less than the guaranteed minimum value, to the extent
that
the liability is not already funded by deposits or other amounts
held by
the relevant lessor; and
|
|
|
(b)
|
the
amount by which the maximum contingent liability of all Obligors
under all
outstanding Asset Value Guarantees (irrespective of whether the value
of
the relevant Aircraft is or is reasonably expected to be less than
the
guaranteed minimum value) exceeds $35,000,000 or the equivalent amount
in
other currencies, to the extent that the contingent liability is
not
already funded by deposits or other amounts held by the relevant
lessor
and is not included within item (a) immediately
above.
|
-
3
-
|
1.1.15
|
"Assignment
and Assumption" has the meaning defined in the
Provisions.
|
|
1.1.16
|
"BA
Discount Proceeds" means, in respect of any Bankers' Acceptance,
an amount calculated on the applicable Drawdown Date which is (rounded
to
the nearest full cent, with one-half of one cent being rounded up)
equal
to the face amount of such Bankers' Acceptance multiplied by the
price,
where the price is calculated by dividing one by the sum of one plus
the
product of (i) the BA Discount Rate applicable thereto expressed as a
decimal fraction multiplied by (ii) a fraction, the numerator of
which is the term of such Bankers' Acceptance and the denominator
of which
is 365, which calculated price will be rounded to the nearest multiple
of
0.001%.
|
|
1.1.17
|
"BA
Discount Rate" means, (a) with respect to any Bankers'
Acceptance accepted by a bank named on Schedule I to the Bank
Act (Canada), the rate determined by the Agent as being the
arithmetic average (rounded upward to the nearest multiple of 0.01%)
of
the discount rates, calculated on the basis of a year of 365 days and
determined in accordance with normal market practice at or about
10:00 a.m. (Toronto time) on the applicable Drawdown Date, for
bankers' acceptances of the Schedule I Reference Lenders having a
comparable face amount and identical maturity date to the face amount
and
maturity date of such Bankers' Acceptance, and (b) with respect to
any Bankers' Acceptance accepted by any other Lender, the rate determined
by the Agent as being the arithmetic average (rounded upward to the
nearest multiple of 0.01%) of the discount rates, calculated on the
basis
of a year of 365 days and determined in accordance with normal market
practice at or about 10:00 a.m. (Toronto time) on the applicable
Drawdown Date, for bankers' acceptances of the Other Reference Lenders
having a comparable face amount and identical maturity date to the
face
amount and maturity date of such Bankers'
Acceptance.
|
|
1.1.18
|
"Bankers'
Acceptance" means a depository xxxx as defined in the
Depository Bills and Notes Act (Canada) in Canadian Dollars that
is in the form of an order signed by a Borrower and accepted by a
Lender
pursuant to this Agreement or, for Lenders not participating in clearing
services contemplated in that Act, a draft or xxxx of exchange in
Canadian
Dollars that is drawn by a Borrower and accepted by a Lender pursuant
to
this Agreement. Orders that become depository bills, drafts and
bills of exchange are sometimes collectively referred to in this
Agreement
as "orders." References in the Provisions to "bankers'
acceptances" shall be interpreted as referring to Bankers'
Acceptances.
|
-
4
-
|
1.1.19
|
"Bankers'
Acceptance Fee" means the amount calculated by multiplying the
face amount of each Bankers' Acceptance by the rate for the Bankers'
Acceptance Fee specified in Sections 2.5, 4.5 and 5.5 and then multiplying
the result by a fraction, the numerator of which is the duration
of its
term on the basis of the actual number of days to elapse from and
including the date of acceptance of a Bankers Acceptance by the Lender
up
to but excluding the maturity date of the Bankers' Acceptance and
the
denominator of which is the number of days in the calendar year in
question.
|
|
1.1.20
|
"Base
Rate Advance" means an Advance in an Approved Currency other than
Canadian Dollars bearing interest based on the Base Rate applicable
to the
relevant Approved Currency, and includes deemed Base Rate Advances
provided for in this Agreement.
|
|
1.1.21
|
"Base
Rate" means, on any day,
|
|
|
(a)
|
for
a Base Rate Advance under Credit A or Credit C, the average of the
annual
rates of interest (expressed as a percentage per annum on the basis
of a
360 day year) announced by the Schedule I Reference Lenders on
that day as their respective reference rates for commercial loans
made in
Canada in the relevant Approved Currency except that, for a Base
Rate
Advance in US Dollars, the Base Rate shall not be less than the Federal
Funds Effective Rate plus
0.5% per annum;
|
|
|
(b)
|
for
a Base Rate Advance under Credit B, the rate per annum equal to Nordea's
offered rate (based on Nordea's cost of funding) for loans in the
applicable Approved Currency.
|
|
1.1.22
|
"BNS"
means The Bank of Nova Scotia, a bank to which the Bank Act
(Canada) applies.
|
|
1.1.23
|
"Borrowers"
means CHC, the Additional Borrowers, the European Borrowers and the
Overdraft Borrowers, and "Borrower" means any of
them.
|
|
1.1.24
|
"Borrowing
Base" means the amount determined by the formula that is set
out
in SCHEDULE H but any error, omission or other discrepancy in the
calculations of the Borrowing Base submitted by CHC is not binding
on the
Lenders.
|
|
1.1.25
|
"Branch
of Account" means the WBO - Loan Operations department of BNS at
3rd Floor, 000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X
0X0.
|
|
1.1.26
|
"British
Pounds", "GBP" and "£" mean
pounds sterling, the lawful money of the United Kingdom of Great
Britain
and Northern Ireland.
|
-
5
-
|
1.1.27
|
"Business
Day" means a day of the year, other than Saturday or Sunday,
on
which (a) the Agent is open for business at its executive offices in
Toronto, Ontario, at its Vancouver, British Columbia Commercial Banking
Centre and at its principal offices in New York, New York, and
London, England and (b) banks are open for business in the country of
issue of any Approved Currency relevant to any notice, determination,
payment or Advance made on the day. Notwithstanding the
foregoing, if banks will be open in some locations referred to above
and
closed in others on a particular day, and the Agent determines that
the
closing of those banks on that day will not adversely affect completion
of
relevant transactions in accordance with customary banking market
and
trading practices, the Agent may, on reasonable advance notice to
CHC and
the Lenders on each occasion, specify the particular day to be a
Business
Day.
|
|
1.1.28
|
"Canadian Dollars",
"Cdn. Dollars", "Cdn. $",
"CAD" and "$" mean lawful money of
Canada.
|
|
1.1.29
|
"Capital
Expenditure" means any expenditure for fixed or capital assets
that would be classified as a capital expenditure in accordance with
GAAP
but excludes any expenditure for Capital Stock or for fixed or capital
assets made as part of the acquisition of an operating
business.
|
|
1.1.30
|
"Capital
Stock" means, with respect to any person, any and all present
and
future shares, partnership or other interests, participations or
other
equivalent rights in the person's capital, however designated and
whether
voting or non-voting.
|
|
1.1.31
|
"Cash
Collateral" means cash, a bank draft or a letter of credit issued
by a Canadian chartered bank, all in a form satisfactory to the Lenders,
acting reasonably.
|
|
1.1.32
|
"Change
in Law" has the meaning defined in the
Provisions.
|
|
1.1.33
|
"CHB"
means CHC Helicopters (Barbados) Limited, a corporation
constituted pursuant to the corporate laws of Barbados, formerly
known as
Canadian Helicopters (Barbados)
Limited.
|
|
1.1.34
|
"CHC"
means CHC Helicopter Corporation, a corporation constituted
pursuant to the Canada Business Corporations
Act.
|
|
1.1.35
|
"CHC
Scotia" means CHC Scotia Limited, a corporation constituted
pursuant to the corporate laws of England and Wales, which was previously
known as Scotia Helicopter Services Ltd. and as Bond Helicopters
Limited.
|
|
1.1.36
|
"CHII"
means CHC Helicopters International Inc., a corporation constituted
pursuant to the Canada Business Corporations
Act.
|
-
6
-
|
1.1.37
|
"Commitment"
means in respect of each Lender from time to time, the covenant
to make Advances to the Borrowers in the Lender's Applicable Percentage
of
the maximum amount of any Credit and, where the context requires,
the
maximum amount of Advances which the Lender has covenanted to
make.
|
|
1.1.38
|
"Consolidated
Tangible Net Worth" means CHC's total shareholders' equity based
on CHC's consolidated financial statements, excluding the effect
of any
foreign currency translation adjustment and deducting deferred financing
costs (net of accumulated amortization), intangible assets and
pre-operating expenses.
|
|
1.1.39
|
"Constating
Documents" means, with respect to any Obligor, its articles or
certificate of incorporation, amalgamation or continuance, memorandum
of
association, by-laws, partnership agreement, limited liability company
agreement or other similar document, and all unanimous shareholder
agreements, other shareholder agreements, voting trust agreements
and
similar arrangements applicable to the Obligor's Capital Stock, all
as
amended from time to time.
|
|
1.1.40
|
"Contracts"
means agreements, franchises, leases, easements, servitudes,
privileges and other rights, other than
Permits.
|
|
1.1.41
|
"Contributing
Lender" shall have the meaning defined in Section
8.27.
|
|
1.1.42
|
"Control"
has the meaning defined in the
Provisions.
|
|
1.1.43
|
"Credit
A" means, collectively, the credit of up to US $175,000,000
or
the equivalent thereof in relevant Approved Currencies, comprised
of the
credit of up to US $125,000,000 or the equivalent thereof in relevant
Approved Currencies (designated as "Credit A1"), the credit of up
to
US $10,000,000 or the equivalent thereof in relevant Approved
Currencies (designated as "Credit A2") and the credit of up to
US $40,000,000 or the equivalent thereof in relevant Approved
Currencies (designated as "Credit A3"), which are established in
favour of CHC, the Additional Borrowers in the case of Credits A1
and A3
and the Overdraft Borrowers in the case of Credit A2, as more particularly
described in ARTICLE II.
|
|
1.1.44
|
"Credit A
Lenders" means the Lenders who have provided Commitments relating
to Credit A as more particularly described in SCHEDULE
E.
|
|
1.1.45
|
"Credit
B" means, collectively, the revolving credit in the amount
of up
to £4,788,866 or the equivalent thereof in relevant Approved Currencies
(designated as "Credit B1") and the revolving credit in the amount
of up
to £2,000,000 or the equivalent thereof in relevant Approved Currencies
(designated as "Credit B2") which is established in favour of the
European
Borrowers as more particularly described in ARTICLE
III.
|
-
7
-
|
1.1.46
|
"Credit B
Lenders" means the Lenders who have provided Commitments relating
to Credit B as more particularly described in SCHEDULE
E.
|
|
1.1.47
|
"Credit
C" means the non-revolving credit of up to £7,591,515.46 or the
equivalent thereof in relevant Approved Currencies, which is established
in favour of CHC as more particularly described in ARTICLE
IV.
|
|
1.1.48
|
"Credit C
Lenders" means the Lenders who have provided Commitments relating
to Credit C as more particularly described in SCHEDULE
E.
|
|
1.1.49
|
"Credit
E" means the non-revolving credit of up to €66,111,723, which is
established in favour of CHC by this
Agreement.
|
|
1.1.50
|
"Credit
E Lenders" means the Lenders who have provided Commitments
relating to Credit E as more particularly described in SCHEDULE
E.
|
|
1.1.51
|
"Credits"
means Credit A, Credit B, Credit C and Credit E (Credit
D in the
Existing Credit Agreement having been combined with Credit C in this
Agreement), and "Credit" means any of
them.
|
|
1.1.52
|
"Credit
Documents" has the same meaning as Loan
Documents.
|
|
1.1.53
|
"Debt"
means, with respect to any person, without duplication and,
except as provided in item (b) below, without regard to any interest
component thereof (whether actual or imputed) that is not due and
payable,
the aggregate of the following amounts, each calculated in accordance
with
GAAP unless the context otherwise
requires:
|
|
|
(a)
|
all
obligations (including by way of overdraft and drafts or orders accepted
representing extensions of credit) that would be considered to be
indebtedness for borrowed money, and all obligations (whether or
not with
respect to the borrowing of money) that are evidenced by bonds,
debentures, notes or other similar
instruments;
|
|
|
(b)
|
the
face amount of all bankers' acceptances and similar
instruments;
|
|
|
(c)
|
all
liabilities upon which interest charges are customarily paid by that
person;
|
|
|
(d)
|
any
capital stock of that person (or of any Subsidiary of that person
that is
not held by that person or by a Subsidiary of that person that is
wholly
owned, directly or indirectly) which capital stock, by its terms
(or by
the terms of any security into which it is convertible or for which
it is
exchangeable at the option of the holder), or upon the happening
of any
event, matures or is mandatorily redeemable, pursuant to a sinking
fund
obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or before 31 December 2010, for
cash or securities constituting
Debt;
|
-
8
-
|
|
(e)
|
all
purchase money obligations and obligations under Leases, other than
obligations under operating leases (as the requirements for operating
leases are determined under GAAP as at 30 April
2004);
|
|
|
(f)
|
the
aggregate Market Value of all Swaps that have a negative Market Value
from
that person's perspective, i.e. that person is "out of the money,"
after offsetting for Swaps in which a Lender is the counterparty,
the
Market Value of Swaps with the same or other Lenders that have a
positive
Market Value;
|
|
|
(g)
|
the
amount of the contingent liability under any guarantee (other than
by
endorsement of negotiable instruments for collection or deposit in
the
ordinary course of business) in any manner of any part or all of
an
obligation of another person of the type included in items (a) through
(f)
above;
|
|
|
(h)
|
the
amount of all contingent liabilities in respect of L/Cs and other
letters
of credit and letters of guarantee;
|
|
|
(i)
|
the
amount of all contingent liabilities in respect of performance bonds
and
surety bonds, and any other guarantee or other contingent liability
of any
part or all of an obligation of a person other than an Obligor, in
each
case only to the extent that the guarantee or other contingent liability
is required by GAAP to be treated as a liability on a balance sheet
of the
guarantor or person contingently
liable;
|
provided
that trade payables and accrued liabilities that are current liabilities
incurred in the ordinary course of business do not constitute Debt.
|
1.1.54
|
"Default"
has the meaning defined in the Provisions. Without
limiting the Provisions, Default includes a Pending Event of
Default.
|
|
1.1.55
|
"Defaulting
Lender" has the meaning defined in Section
8.27.
|
|
1.1.56
|
"Designated
Account" means, in respect of any Advance, the account or
accounts that a Borrower designates in its notice requesting an Advance
and that are maintained at a branch of the Agent in Vancouver, British
Columbia (in the case of CHC, the Additional Borrowers and the Overdraft
Borrowers) or London, England (in the case of the European Borrowers)
or
in another location approved in advance by the Agent, acting
reasonably.
|
-
9
-
|
1.1.57
|
"Discovery
Note" means a $5,000,000 promissory note of CHC in favour of
Discovery Helicopters Limited, a corporation controlled by
Xx. X.X. Xxxxxx, the proceeds of which were advanced to CHC in
August 1999.
|
|
1.1.58
|
"Drawdown
Date" means the date, which shall be a Business Day, of any
Advance.
|
|
1.1.59
|
"EBITDA"
means, for any relevant period, an amount equal to CHC's
net
income or net loss for the period, calculated on a consolidated
basis:
|
|
|
(a)
|
plus
amounts deducted in calculating net income or net loss in respect
of
depreciation and amortization;
|
|
|
(b)
|
plus
interest expense on Total Debt;
|
|
|
(c)
|
plus
amounts deducted in calculating net income or net loss in respect
of
income taxes, whether or not
deferred;
|
and
excluding:
|
|
(d)
|
any
gain or loss attributable to the sale, conversion or other disposition
of
assets; and
|
|
|
(e)
|
gains
resulting from the write-up of assets and losses resulting from the
write-down of assets (other than losses resulting from allowances
for
doubtful accounts, which shall be included);
and
|
|
|
(f)
|
any
gain or loss on the repurchase or redemption of any securities (including
in connection with the early retirement or defeasance of any Debt);
and
|
|
|
(g)
|
any
foreign currency translation gain or loss;
and
|
|
|
(h)
|
any
other extraordinary, non-recurring or unusual items;
and
|
|
|
(i)
|
amounts
attributable to persons other than Obligors or to minority interests
in
Obligors;
|
all
of which shall be calculated in accordance with GAAP unless otherwise expressly
described. Except with respect to the Xxxxxxxxx Acquisition, if CHC
has established a new Obligor or has disposed of an Obligor or material property
out of the ordinary course of business during the relevant period, EBITDA shall
be adjusted on a basis satisfactory to the Required Lenders as if the new
Obligor had been an Obligor during the entire period or the disposition had
occurred at the beginning of the period. With respect to the
Xxxxxxxxx Acquisition, if EBITDA for CHC is to be calculated for a period
beginning before the completion of the Xxxxxxxxx Acquisition, an adjustment
shall be made by (x) calculating EBITDA for Xxxxxxxxx and the Obligors that
are
Subsidiaries of Xxxxxxxxx for the period beginning at 16 February 2004 (the
date
of completion of the Xxxxxxxxx Acquisition) and ending at
the end of the period for which CHC's EBITDA is to be calculated and (y)
multiplying it by a fraction the numerator of which is 366 and the denominator
of which is the number of days in the period described in (x).
-
10
-
|
1.1.60
|
"Eligible
Assignee" has the meaning defined in the
Provisions.
|
|
1.1.61
|
"Encumbrance"
means any mortgage, debenture, pledge, hypothec, prior claim, lien,
charge, assignment by way of security, consignment, Lease, hypothecation,
security interest or other security agreement, trust or arrangement
having
the effect of security for the payment of any debt, liability or
obligation, and "Encumbrances", "Encumbrancer", "Encumber" and
"Encumbered" shall have corresponding
meanings.
|
|
1.1.62
|
"European
Borrowers" means CHC Scotia, and any other European Obligor that
may be designated by CHC as a European Borrower from time to time
with the
consent of the Required Lenders and after delivery of such guarantees
and
other Security as the Required Lenders may reasonably
require. Without limiting the foregoing, HSAS may be designated
as a European Borrower if CHC and the other Obligors that have not
given
guarantees of CHC's Obligations (because of limitations of Norwegian
and
similar laws) give a guarantee of HSAS's Obligations as Borrower
and HSAS
and those other Obligors amend the Security they have given so as
to
secure HSAS's Obligations as Borrower or their guarantees
thereof.
|
|
1.1.63
|
"Euros",
"EUR" and "€" mean units of the single currency
adopted by certain member states of the European Union in accordance
with
legislation of the European Union relating to European Economic and
Monetary Union.
|
|
1.1.64
|
"Event
of Default" has the meaning defined in Section
11.1.
|
|
1.1.65
|
"Exchange
Rate" means, on any day, for the purpose of calculations under
this Agreement, the amount of one Approved Currency into which another
Approved Currency may be converted using the Agent's mid rate
(i.e. the average of the Agent's spot buying and selling rates) for
converting the first currency to the other currency at the relevant
time
on that day. If the Exchange Rate is being determined at any
time in respect of a previous day, the noon spot rate of the Bank
of
Canada on that previous day shall be used instead of the Agent's
mid rate.
|
|
1.1.66
|
"Excluded
Taxes" has the meaning defined in the
Provisions.
|
-
11
-
|
1.1.67
|
"Existing
Credit Agreement" has the meaning defined in the first recital to
this Agreement.
|
|
1.1.68
|
"Federal
Funds Effective Rate" means for any period, a fluctuating
interest rate per annum equal, for each day during such period, to
the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by Federal Funds
brokers as published for such day (or, if such day is not a Business
Day,
for the next preceding Business Day) by the Federal Reserve Bank
of New
York or, for any day on which that rate is not published for that
day by
the Federal Reserve Bank of New York, the average of the quotations
for
that day for such transactions received by the Agent from
three Federal Funds brokers of recognized
standing.
|
|
1.1.69
|
"Fee
Agreement" means the letter from BNS to CHC dated 22 December
2004, as amended, supplemented, restated and replaced from time to
time.
|
|
1.1.70
|
"Fixed
Charge Coverage Ratio" means, at any time, the ratio calculated
by dividing (a) the aggregate of EBITDA, plus (to the extent not
added back in calculating EBITDA) the total of all payments made
by
Obligors in respect of Leases, less Maintenance Capital Expenditures,
for
CHC's four most recently completed fiscal quarters by (b) the
aggregate of amounts paid (or required to be paid) by the Obligors
for
Total Interest Expense, scheduled principal reductions and the amounts
actually paid on account of taxes and dividends, plus (to the extent
not
included in Total Interest Expense) the total of all payments made
by
Obligors in respect of Leases, for CHC's four most recently completed
fiscal quarters.
|
|
1.1.71
|
"Foreign
Lender" has the meaning defined in the
Provisions.
|
|
1.1.72
|
"Fund"
has the meaning defined in the
Provisions.
|
|
1.1.73
|
"GAAP"
means generally accepted accounting principles which are
in
effect from time to time in Canada, as established by the Canadian
Institute of Chartered Accountants.
|
|
1.1.74
|
"Governmental
Authority" has the meaning defined in the
Provisions.
|
|
1.1.75
|
"Hazardous
Materials" means any hazardous substance or any pollutant or
contaminant, toxic or dangerous waste, substance or material, as
defined
in or regulated by any Applicable Law or Governmental Authority from
time
to time, including friable asbestos and poly-chlorinated
biphenyls.
|
|
1.1.76
|
"HSAS"
means CHC Helikopter Service AS, a corporation constituted pursuant
to the
corporate laws of Norway, formerly known as Helikopter Service
AS.
|
-
12
-
|
1.1.77
|
"HSG"
means Helicopter Services Group AS, a corporation
constituted pursuant to the corporate laws of Norway, formerly known
as
Helicopter Services Group ASA.
|
|
1.1.78
|
"Indemnified
Taxes" has the meaning defined in the
Provisions.
|
|
1.1.79
|
"Intellectual
Property" means patents, trademarks, service marks, trade names,
copyrights, trade secrets, industrial designs and other similar
rights.
|
|
1.1.80
|
"Interbank
Reference Rate" means, in respect of any currency, the interest
rate expressed as a percentage per annum which is customarily used by
the Agent when calculating interest due by it or owing to it arising
from
correction of errors in transactions in that currency between it
and other
chartered banks.
|
|
1.1.81
|
"Intercompany
Loan Obligations" means all present and future debts, liabilities
and obligations of any kind owing or remaining unpaid by any Obligor
to
another Obligor in respect of loans or advances made, including Restricted
Intercompany Obligations.
|
|
1.1.82
|
"Intercompany
Obligations" means all present and future debts, liabilities and
obligations of any kind owing or remaining unpaid by any Obligor
to
another Obligor, including Intercompany Loan Obligations, guarantees
of
Intercompany Loan Obligations of another Obligor and indebtedness
for
goods and services supplied by any Obligor to
another.
|
|
1.1.83
|
"Intercreditor
Agreements" means intercreditor agreements that may be entered
into from time to time to provide for the terms of subordination
of other
Debt in favour of the Obligations, each as amended, supplemented,
restated
and replaced from time to time.
|
|
1.1.84
|
"Interest
Payment Date" means (in connection with Prime Rate Advances and
Base Rate Advances) the 22nd day
of
each calendar month or if that is not a Business Day, the Business
Day
next following.
|
|
1.1.85
|
"Interest
Period" has the same meaning as LIBOR
Period.
|
|
1.1.86
|
"ISDA
Master Agreement" means an ISDA Master Agreement as published by
the International Swaps and Derivatives Association, Inc., as amended
or
replaced from time to time.
|
|
1.1.87
|
"Issuing
Bank" has the meaning defined in the Provisions. For
the time being, BNS is the Issuing Bank in respect of L/Cs issued
under
Credit A and Nordea is the Issuing Bank in respect of L/Cs issued
under
Credit B. The Agent may from time to time designate other
Lenders as Issuing Banks after consultation with
CHC.
|
-
13
-
|
1.1.88
|
"L/C"
or "Letter of Credit" means a standby letter of
credit, letter of guarantee or commercial letter of credit in a form
satisfactory to the Issuing Bank issued by the Issuing Bank at the
request
of a Borrower in favour of a third party to secure the payment or
performance of an obligation of an Obligor to the third
party.
|
|
1.1.89
|
"Lease"
means any arrangement by which an Obligor obtains the use of an Aircraft
of which it is not the owner for a term of more than 12 months, including
rights of renewal, in exchange for payment to a person other than
an
Obligor, including a capital lease, an operating lease, a synthetic
lease,
the lease aspect of a sale and leaseback transaction and the "lease
in"
aspect of a "lease out, lease in"
transaction.
|
|
1.1.90
|
"Lenders"
means each of the persons listed on SCHEDULE E and other
lenders
that agree from time to time to become Lenders in accordance with
Article XIII of this Agreement, including the Credit A Lenders,
the Credit B Lenders, the Credit C Lenders and the Credit E
Lenders, and "Lender" means any one of the
Lenders.
|
|
1.1.91
|
"Lending
Office" means, as to any Lender, the office or offices from which
it makes Advances and receives payments pursuant to this Agreement
from
time to time.
|
|
1.1.92
|
"LIBO
Rate" means, for any LIBOR Period and LIBOR Advance, the average
of the interest rates expressed as a percentage per annum on the
basis of a 360 day year at which deposits in the relevant Approved
Currency are offered by the principal offices of the Schedule I
Reference Lenders in London, England in the London interbank market
at 11:00 a.m. London time two Business Days before the first day
of the LIBOR Period for a period equal to the LIBOR Period and in
an
amount approximately equal to the amount of the LIBOR
Advance.
|
|
1.1.93
|
"LIBOR
Advance" or "LIBO Rate Loan" means an advance in
an Approved Currency other than Cdn. Dollars bearing interest based
on the LIBO Rate.
|
|
1.1.94
|
"LIBOR
Period" means the period selected by the relevant Borrower for
a
LIBOR Advance or the period applicable to the LIBOR Advance under
the
terms of this Agreement.
|
|
1.1.95
|
"Loan"
has the meaning defined in the
Provisions.
|
|
1.1.96
|
"Loan
Documents" means this Agreement, the Security and all other
documents relating to the Credits, or any of
them.
|
|
1.1.97
|
"Maintenance
Capital Expenditures" means Capital Expenditures necessary to
sustain operations and revenues of the Obligors as they existed at
the
beginning of CHC's then-current fiscal year on an efficient
basis.
|
-
14
-
|
1.1.98
|
"Market
Value" means:
|
|
|
(a)
|
for
any Swap governed by an ISDA Master Agreement, on any day, the amount
(whether positive or negative) expressed in Canadian Dollars that is
determined by a Lender in good faith in accordance with its customary
practices as of the close of business on that day as though that
day was
an "Early Termination Date" and the "Transaction" was a "Terminated
Transaction" in accordance with the payment measure provided for
in
section 6(e)(i)(3) of the 1992 ISDA Master Agreement
(Multicurrency - Cross Border). "Early Termination
Date," "Transaction" and "Terminated Transaction" have the meanings
defined in that ISDA Master
Agreement;
|
|
|
(b)
|
for
any Swap not governed by an ISDA Master Agreement, on any day, the
amount
expressed in Canadian Dollars that is determined by a Lender in good
faith in accordance with its customary practices (using the average
of the
buy and sell prices) as of the close of business on that day that
one
counterparty to a Swap would have to pay the other in order to terminate
the Swap on that day.
|
|
1.1.99
|
"Material
Contract" means any
Contract:
|
|
|
(a)
|
to
which is attached obligations on the part of the Obligors or which
has an
economic value to the Obligors in excess of $10,000,000 per annum;
or
|
|
|
(b)
|
to
which an Obligor is a party that, if terminated, would materially
impair
the ability of any Obligor to carry on business in the ordinary course
or
would have a material adverse effect on the financial condition of
the
Obligors as a whole.
|
|
1.1.100
|
"Material
Permit" means any Permit:
|
|
|
(a)
|
that
is required to operate Aircraft;
|
|
|
(b)
|
to
which is attached obligations on the part of the Obligors or which
has an
economic value to the Obligors in excess of $1,000,000 per annum;
or
|
|
|
(c)
|
issued
to an Obligor that, if terminated, would materially impair the ability
of
any Obligor to carry on business in the ordinary course or would
have a
material adverse effect on the financial condition or business prospects
of the Obligors as a whole.
|
-
15
-
|
1.1.101
|
"Nordea"
means Nordea Bank Norge ASA, a bank established under the laws of
the
Kingdom of Norway.
|
|
1.1.102
|
"Norwegian
Kroner" and "NOK" mean lawful money of the
Kingdom of Norway.
|
|
1.1.103
|
"Obligations"
means all obligations of the Borrowers to the Lenders under
or in
connection with this Agreement, including all debts and liabilities,
present or future, direct or indirect, absolute or contingent, matured
or
not, at any time owing by the Borrowers to the Lenders in any currency
or
remaining unpaid by the Borrowers to the Lenders in any currency
under or
in connection with this Agreement, whether arising from dealings
between
the Lenders and the Borrowers or from any other dealings or proceedings
by
which the Lenders may be or become in any manner whatever creditors
of the
Borrowers under or in connection with this Agreement, and wherever
incurred, and whether incurred by the Borrowers alone or with another
or
others and whether as principal or surety, and all interest, fees,
legal
and other costs, charges and expenses. In this definition, "the Borrowers"
shall be interpreted as "the Borrowers, or any of them" and "the
Lenders"
shall be interpreted as "the Lenders, or any of
them."
|
|
1.1.104
|
"Obligors"
has the meaning defined in the Provisions. Without
limiting the Provisions, Obligors means CHC, the Subsidiaries of
CHC
listed on SCHEDULE M and other Subsidiaries of CHC that may become
Obligors in accordance with this Agreement, and "Obligor"
means any of them.
|
|
1.1.105
|
"Other
Reference Lenders" means the Lenders that are not banks listed in
Schedule I of the Bank Act (Canada) and that have been
designated as such or deemed to be Other Reference Lenders in accordance
with Section 8.12.
|
|
1.1.106
|
"Other
Secured Obligations" has the meaning defined in Section
6.2(c).
|
|
1.1.107
|
"Other
Taxes" has the meaning defined in the
Provisions.
|
|
1.1.108
|
"Overdraft
Borrowers" means Obligors other than CHC that are designated by
CHC with the consent of BNS to obtain Advances by way of overdraft
under
Credit A2, provided that CHC has delivered a guarantee of the Obligations
of each Overdraft Borrower as a Borrower and CHC and each Overdraft
Borrower have delivered such other documents relating to obtaining
overdrafts as BNS may require from time to
time.
|
|
1.1.109
|
"Participant"
has the meaning defined in the
Provisions.
|
|
1.1.110
|
"Parts"
means any and all parts, accessories and assemblies for
Aircraft
including any and all avionics, furnishings, instruments, appurtenances,
accessories, communication and radar equipment, main rotor blades,
engines, transmissions, main rotor heads, tail rotor assemblies,
intermediate gear boxes, servo actuators, nodal beams, skid tubes,
cockpit voice recorders and other equipment of any kind or nature
whatsoever (whether consumable, repairable or non-repairable, spare
parts
or otherwise), whether or not incorporated or installed in, attached
to or
forming part of any Aircraft at a particular
time.
|
-
16
-
|
1.1.111
|
"Pending
Event of Default" means an event that would constitute an Event
of Default hereunder, except for satisfaction of any requirement
for
giving of notice, lapse of time, or both, or any other condition
subsequent to such event. Without limiting the foregoing, it
shall be a Pending Event of Default if there are objectively ascertainable
and measurable grounds to warrant a finding by the Required Lenders,
acting reasonably, that CHC will not be in compliance with the financial
covenants contained in Section 10.2 at the end of its current fiscal
quarter, or was not in compliance with those covenants at the end
of its
immediately preceding fiscal quarter if it has not delivered its
Reporting
Certificate for that quarter.
|
|
1.1.112
|
"Pension
Plan" means (a) a "pension plan" or "plan" which is subject
to the funding requirements of the Pension Benefits Standards Act
(Canada) or any applicable pension benefits legislation in any
other
jurisdiction of Canada and is applicable to employees resident in
Canada
of any Obligor, or (b) any pension benefit plan or similar arrangement
applicable to employees of any
Obligor.
|
|
1.1.113
|
"Permits"
means licenses, certificates, authorizations, consents, registrations,
exemptions, permits and other approvals required by Applicable
Law.
|
|
1.1.114
|
"Permitted
Encumbrances" or "Permitted Liens" means, with
respect to any person, without duplication, the
following:
|
|
|
(a)
|
Encumbrances
for taxes, rates, assessments or other charges or levies imposed
by
Applicable Law that are not yet due, or for which instalments have
been
paid based on reasonable estimates pending final assessments, or
if due,
the validity of which is being contested diligently and in good faith
by
appropriate proceedings by that person and the payment of which has
been
covered by arrangements satisfactory to the Required
Lenders;
|
|
|
(b)
|
undetermined
or inchoate Encumbrances, rights of distress and charges incidental
to
current operations which have not at such time been filed or exercised
and
of which none of the Lenders has been given notice, or which relate
to
obligations not due or payable or if due, the validity of which is
being
contested diligently and in good faith by appropriate proceedings
by that
person;
|
-
17
-
|
|
(c)
|
reservations,
limitations, provisos and conditions expressed in any original grants
from
the Crown or other grants of real or immovable property, or interests
therein, which do not in the opinion of the Required Lenders acting
reasonably materially affect the use of the affected land for the
purpose
for which it is used by that
person;
|
|
|
(d)
|
licenses,
easements, rights-of-way and rights in the nature of easements (including
licenses, easements, rights-of-way and rights in the nature of easements
for sidewalks, public ways, sewers, drains, gas, steam and water
mains or
electric light and power, or telephone and telegraph conduits, poles,
wires and cables) and zoning, land use and building restrictions,
by-laws,
regulations and ordinances of federal, provincial, municipal and
other
Governmental Authorities, which will not in the opinion of the Required
Lenders acting reasonably materially impair the use of the affected
land
for the purpose for which it is used by that
person;
|
|
|
(e)
|
title
defects, encroachments or irregularities which are of a minor nature
and
which in the aggregate will not in the opinion of the Required Lenders
acting reasonably materially impair the use of the affected property
for
the purpose for which it is used by that
person;
|
|
|
(f)
|
the
right reserved to or vested in any Governmental Authority by the
terms of
any lease, license, franchise, grant or permit acquired by that person
or
by any statutory provision to terminate any such lease, license,
franchise, grant or 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 contracts, tenders or expropriation proceedings, or to secure
workers' compensation, unemployment insurance, surety or appeal bonds,
costs of litigation when required by law, liens and claims incidental
to
current construction, mechanics', warehousemen's, carriers' and other
similar liens, and public, statutory and other like obligations incurred
in the ordinary course of business;
|
|
|
(h)
|
security
given to a public utility or any Governmental Authority when required
by
such utility or authority in connection with the operations of that
person
in the ordinary course of its
business;
|
|
|
(i)
|
the
Security;
|
|
|
(j)
|
the
Encumbrance created by a judgment of a court of competent jurisdiction,
as
long as the judgment is being contested diligently and in good faith
by
appropriate proceedings by that person and does not result in an
Event of
Default;
|
-
18
-
|
|
(k)
|
Encumbrances
on equipment (other than Aircraft) and the proceeds thereof created
or
assumed to finance the acquisition or improvement or secure the unpaid
purchase price thereof (including the principal amount of any capital
lease), to a maximum aggregate principal amount of $1,000,000 for
all
Obligors at any time;
|
|
|
(l)
|
aircraft
mortgage by CHC Scotia in favour of General Electric Capital Equipment
Finance Inc. under which a charge of aircraft G-DRNT (serial number
760201) is created as collateral security for CHII's obligations
relating
to a lease of an Aircraft located in Saudi
Arabia;
|
|
|
(m)
|
Encumbrances
on any new or refurbished Part in favour of the provider of
power-by-the-hour maintenance support which will be released once
the
Obligor which owns or controls the relevant Aircraft has delivered
clear
title to a corresponding used Part that has been removed from the
Aircraft
in furtherance of the maintenance obligations and Parts exchange
described
in SCHEDULE L;
|
|
|
(n)
|
Encumbrances
of Aircraft that are subject to:
|
|
|
(i)
|
operating
leases existing at 22 December
2004;
|
|
|
(ii)
|
any
refinancings or replacements of the operating leases existing at
22
December 2004, relating to the same Aircraft provided that the principal
amount financed for any Aircraft is not
increased;
|
|
|
(iii)
|
other
operating leases for a term of less than two years with aggregate
payments for all such other leases of less than $1,000,000 per annum
that are not intended as financing
arrangements;
|
|
|
(iv)
|
operating
leases of Aircraft that do not fall within items (i) to (iii) immediately
above, provided that CHC gives the Agent prior written notice of
entering
into any such operating lease and includes with its notice a calculation
demonstrating that it would have been in compliance with the Adjusted
Total Debt Ratio for the fiscal period in respect of which it has
most
recently submitted a Reporting Certificate even if the numerator
and
denominator used in calculating the Adjusted Total Debt Ratio had
each
been increased to take into account the lease payments and/or purchase
option price in respect of such operating lease and any other operating
leases that were not reflected in that calculation and have since
been
entered into; and
|
-
19
-
|
|
(v)
|
Leases
permitted by items (i) to (iv) immediately above that are subsequently
reclassified as capital leases;
|
|
|
(o)
|
other
Encumbrances agreed to in writing by the Required
Lenders.
|
|
|
(p)
|
assignments
in favour of Eurocopter S.A. and other arm's-length subordinate lenders
of
proceeds of sale of Aircraft that are subject to operating leases
described in item (n) above to secure repayment of any rental down
payment
or junior loan financed by such lenders that is otherwise without
recourse
to the Obligors;
|
|
|
(q)
|
Encumbrances
over rights in power by the hour contracts, sub-leases, future rental
rebates and similar rights relating to a particular Aircraft that
is
subject to an operating lease described in item (n) above to secure
the
operating lease, other operating leases with the same lessor or its
Affiliates or Asset Value Guarantees relating to those operating
leases;
|
|
|
(r)
|
cash
collateral which may be delivered by CHC from time to time to a Lender
which is the counterparty under one or more Swaps in the form of
equity
forward contracts entered into by CHC to hedge exposure under stock
appreciation rights granted to employees and directors of the Obligors,
provided that the cash collateral does not at any time exceed an
aggregate
of $13,000,000 and the Swaps do not at any time relate to an aggregate
of
more than 750,000 Class A shares of CHC; it is agreed that the
counterparty's interest in the cash collateral shall rank ahead of
the
Security;
|
|
|
(s)
|
Encumbrances
on the Property of Multifabs Survival Limited to secure a term loan
established in May and June 2003 in the amount of GBP 832,898, a
term loan
dated 24 November 2003 in the amount of GBP 496,000 and Debt that
is
incurred under a GBP 600,000 overdraft facility dated 8 June 2004,
all
with Bank of Scotland and all of which were existing on 17 August
2004
(the date the Capital Stock of Multifabs Survival Limited was acquired
by
Brintel Holdings Limited), as long as no other Obligor has any obligation
in respect of, or has given any Encumbrance to secure, that
Debt;
|
|
|
(t)
|
Encumbrances
on the Property of Whirly Bird Services Limited to secure a term
loan
dated 27 September 2000 in the amount of GBP 300,000, a term loan
dated 14
October 2003 in the amount of GBP 200,000 and Debt that is incurred
under
a GBP 200,000 overdraft facility dated 11 April 2003, all with Bank
of
Scotland and all of which were existing on 5 March
2004 (the date the Capital Stock of Whirly Bird
Services Limited was acquired by Brintel Holdings Limited), as long
as no
other Obligor has any obligation in respect of, or has given any
Encumbrance to secure, that Debt;
|
-
20
-
|
|
(u)
|
Encumbrances
that were existing on the Property of a Person to secure Debt of
the
Person that was existing, or that is incurred under an operating
credit
facility that was existing, at the time the Person's Capital Stock
was
acquired by an Obligor, as long as the Encumbrances were not granted
and
the Debt was not incurred in anticipation of the acquisition, the
aggregate principal amount of such Debt that is outstanding for all
such
Persons at any time does not exceed $10,000,000 or the equivalent
amount
in other currencies, and no Obligor (except one that was an Affiliate
of
the Person before its Capital Stock was acquired) has any obligation
in
respect of, or has given any Encumbrance to secure, that
Debt;
|
|
|
(v)
|
Encumbrances
to secure Debt contemplated in Section
1.1.115(n);
|
|
|
(w)
|
pledges
to one or more Lenders of proceeds of loans made by those Lenders
to fund
the price of Property being purchased by one Obligor from another
in
accordance with this Agreement and as part of the process contemplated
to
be undertaken by CHC with the advice of Ernst & Young LLP to (among
other things) streamline its legal organizational structure and align
the
structure with its operational structure, provided that the proceeds
are
at all times held in, or being wire transferred to, accounts of Obligors
with one or more Lenders and that the advances are outstanding only
for as
long as is necessary to enable all necessary wire transfers to be
completed, and in any event not more than five Business Days and
provided
that the wire transfers are commenced no later than 31 December
2005; it is agreed that the pledges of proceeds shall rank
ahead of the Security.
|
|
1.1.115
|
"Permitted
Obligations" means, without duplication, the
following:
|
|
|
(a)
|
the
Obligations;
|
|
|
(b)
|
the
Other Secured Obligations;
|
|
|
(c)
|
Intercompany
Obligations;
|
|
|
(d)
|
other
debts, liabilities and obligations secured by Permitted Encumbrances,
other than the Security;
|
|
|
(e)
|
the
Sub Debt;
|
-
21
-
|
|
(f)
|
reimbursement
obligations for which the issuers hold indemnifications of Export
Development Corporation in connection with (i) a US $25,000,000
letter of credit issued by Bank of Scotland or another financial
institution in connection with the Maersk Oil contract and (ii) other
letters of credit in an aggregate face amount outstanding from time
to
time of not more than USD 4,000,000 or the equivalent amount in other
currencies;
|
|
|
(g)
|
current
accounts payable, accrued expenses and other debts, liabilities and
obligations incurred in the ordinary course of business which do
not
constitute Debt;
|
|
|
(h)
|
deferred
taxes;
|
|
|
(i)
|
obligations
arising from guarantees by one Obligor of debts, liabilities and
obligations of another Obligor that are themselves Permitted
Obligations;
|
|
|
(j)
|
operating
credits (i) in the amount of 7,000,000 South African Rand from a
South
African bank (currently First National Bank of South Africa Limited)
in
favour of CHC Helicopters (Africa) (Proprietary) Ltd., and (ii) in
the
amount of 7,350,000 South African Rand from a South African bank
(currently ABSA Bank Limited) in favour of CHC Helicopters (Africa)
(Proprietary) Ltd. that in each case are either unsecured or secured
by an
L/C issued under a Credit;
|
|
|
(k)
|
Debts
to CHC Reinsurance S.A. (formerly HSG Reinsurance S.A.) of NOK
15,750,000 owing by HSG pursuant to a loan agreement dated
26 May 1999, NOK 6,000,000 owing by HSAS pursuant to a loan
agreement dated 15 May 2000, US $1,000,000 owing by HSAS
pursuant to a loan agreement dated 15 May 2000 and US $300,000
owing by HSG pursuant to a loan agreement dated July
2001;
|
|
|
(l)
|
the
Discovery Note;
|
|
|
(m)
|
obligations
arising from the guarantee by an Obligor of performance obligations
(not
relating to Debt) of a Person that is partially owned by or has entered
into a joint venture with an Obligor, to the extent any such guarantee
is
required in the ordinary course of obtaining contracts in favour
of that
Person;
|
|
|
(n)
|
other
secured or unsecured Debt for borrowed money and/or capital leases
in an
aggregate principal amount outstanding for all Obligors of not more
than
$40,000,000 or the equivalent amount in other currencies at any
time;
|
-
22
-
|
|
(o)
|
Asset
Value Guarantees;
|
|
|
(p)
|
other
debts, liabilities and obligations expressly permitted under this
Agreement or consented to by the Required Lenders in
writing.
|
|
1.1.116
|
"Person"
has the meaning defined in the Provisions and
"person" has the same
meaning.
|
|
1.1.117
|
"Pledged
Shares" means the Capital Stock of the Obligors that is pledged
as part of the Security from time to
time.
|
|
1.1.118
|
"Primary
Operating Jurisdiction" means each of Canada, the United Kingdom,
Norway, Denmark (excluding Greenland), Australia, the United States
of
America, South Africa, the Netherlands and
Ireland.
|
|
1.1.119
|
"Prime
Rate" means, on any day, the greater
of:
|
|
|
(a)
|
the
average of the annual rates of interest expressed as a percentage
per annum announced by the Schedule I Reference Lenders on that
day as their respective reference rates for commercial loans made
by them
in Canada in Canadian Dollars;
and
|
|
|
(b)
|
the
average rate for 30 day Canadian Dollar bankers' acceptances
that appears on the Reuters Screen CDOR Page at 10:00 a.m. Toronto
time on that day, plus
0.75% per annum.
|
|
1.1.120
|
"Prime
Rate Advance" means an Advance in Canadian Dollars bearing
interest based on the Prime Rate and includes deemed Prime Rate Advances
provided for in this Agreement.
|
|
1.1.121
|
"Property"
means, with respect to any person, any or all of its undertaking,
property
and assets including Capital Stock held by that person in any other
person.
|
|
1.1.122
|
"Proportionate
Share" has the same meaning as Applicable
Percentage.
|
|
1.1.123
|
"Provisions"
means the model credit agreement provisions attached as Schedule
D.
|
|
1.1.124
|
"Register"
has the meaning defined in section 10(c) of the
Provisions.
|
|
1.1.125
|
"Related
Parties" has the meaning defined in the
Provisions.
|
|
1.1.126
|
"Reporting
Certificate" means a certificate in the form of
Schedule C.
|
|
1.1.127
|
"Required
Lenders" means Lenders holding, in the aggregate, a minimum of
60% of the outstanding amount of the Commitments for all Credits,
but in
any event at least three Lenders if there are a total of six or more
Lenders.
|
-
23
-
|
1.1.128
|
"Restricted
Intercompany Obligations" means the loans described on SCHEDULE
K, all guarantees of those loans and all Encumbrances securing those
loans
and guarantees.
|
|
1.1.129
|
"Restricted
Parties" has the same meaning as
Obligors.
|
|
1.1.130
|
"Restricted
Payment" means any payment to (a) pay dividends,
(b) issue bonuses on Capital Stock, (c) redeem or purchase
Capital Stock, (d) make principal or cash interest payments on Debt
owing to shareholders, affiliated corporations or associates of
shareholders or affiliated corporations, including the Discovery
Note in
the case of CHC, or (e) pay management fees or make distributions to
shareholders, affiliated corporations or associates of shareholders
or
affiliated corporations or engage in any other method of returning
capital
to direct or indirect holders of Capital
Stock.
|
|
1.1.131
|
"Schedule"
means the designated schedule of this
Agreement.
|
|
1.1.132
|
"Schedule I
Reference Lenders" means the Lenders that are banks listed in
Schedule I of the Bank Act (Canada) and that have been
designated as such or deemed to be Schedule I Reference Lenders in
accordance with Section 8.12.
|
|
1.1.133
|
"Xxxxxxxxx"
means Xxxxxxxxx Luchtvaart Groep B.V., a private limited liability
company
established under the laws of the
Netherlands.
|
|
1.1.134
|
"Xxxxxxxxx
Acquisition" means the acquisition by CHC Netherlands B.V. of all
of the issued and outstanding Capital Stock of
Xxxxxxxxx.
|
|
1.1.135
|
"Section"
means the designated section of this
Agreement.
|
|
1.1.136
|
"Security"
means the security held from time to time by or on behalf of the
Lenders,
securing or intended to secure repayment of the Obligations, the
Intercompany Obligations and/or the Other Secured Obligations, including
the security described in Section
6.1.
|
|
1.1.137
|
"Senior
Debt Ratio" means, at any time, the ratio calculated by dividing
(a) Total Debt excluding that part not ranking, or capable of
ranking, senior to or pari passu with the Obligations, by
(b) EBITDA for CHC's four most recently completed fiscal
quarters.
|
|
1.1.138
|
"Sub
Debt" means the 7.375% senior subordinated notes due 2014 in
the
aggregate principal amount of US $250,000,000 issued under the trust
indenture dated as of 27 April 2004 between CHC, other Obligors and
The
Bank of New York as trustee. For greater certainty, the Sub
Debt does not include any "Additional Notes" as defined in that
indenture.
|
-
24
-
|
1.1.139
|
"Sub
Debt Indenture" means the indenture under which the Sub Debt
has been issued.
|
|
1.1.140
|
"Subsidiary"
means, with respect to an Obligor, a subsidiary as defined in the
Canada Business Corporations Act as of 22 December 2004, and any
partnership or other organization in which the Obligor or any Subsidiary
of the Obligor has Control.
|
|
1.1.141
|
"Swap"
means (a) any cap, collar, floor or other option, (b) any forward
contract, (c) any swap or contract for differences, (d) any other
agreement of a type commonly considered to be a derivative, or (e)
any
combination of any of those agreements, in each case whether relating
to
interest, currencies, commodities, securities or
otherwise.
|
|
1.1.142
|
"Taxes"
has the meaning defined in the
Provisions.
|
|
1.1.143
|
"Total
Debt" means the aggregate, without duplication, of all Debt of
CHC on a consolidated basis, calculated in accordance with GAAP unless
otherwise expressly described, less the amount of CHC's consolidated
cash
that is on deposit with Lenders and not Encumbered except by the
Security.
|
|
1.1.144
|
"Total
Debt Ratio" means, at any time, the ratio calculated by dividing
(a) Total Debt plus Asset Value Guarantee Exposure by (b) EBITDA
for CHC's four most recently completed fiscal
quarters.
|
|
1.1.145
|
"Total
Interest Expense" means, for any period, without duplication, the
aggregate expense incurred by CHC on a consolidated basis for interest
and
equivalent costs of borrowing, including (a) Bankers' Acceptance
fees,
(b) discounts on Bankers' Acceptances, (c) the interest portion of
any capital lease and (d) all fees and other compensation paid to any
person that has extended credit to the Obligors, but excluding any
upfront, extension and similar non-recurring fees, in each case whether
or
not actually paid (unless paid by the issuance of securities constituting
part of Total Debt), and calculated in accordance with
GAAP.
|
|
1.1.146
|
"Tranche
1" has the meaning defined in Section
5.1.
|
|
1.1.147
|
"Tranche
2" has the meaning defined in Section
5.1.
|
|
1.1.148
|
"Tranche
3" has the meaning defined in Section
5.1.
|
|
1.1.149
|
"US
Dollars", "USD" and "US $" mean
lawful money of the United States of
America.
|
|
1.1.150
|
"Welfare
Plan" means any medical, health, hospitalization, insurance or
other employee benefit or welfare plan, agreement or arrangement
applicable to employees of any
Obligor.
|
-
25
-
|
1.2
|
Amendment
and Restatement
|
This
Agreement is and shall for all purposes be deemed to be an amendment and
restatement of the provisions of the Existing Credit Agreement. While
this Agreement shall supersede the Existing Credit Agreement insofar as it
constitutes the entire agreement between the parties concerning the subject
matter of this Agreement, this Agreement merely amends and restates the Existing
Credit Agreement and does not constitute or result in a novation or rescission
of the Existing Credit Agreement, the existing Security or any other Loan
Document.
The
parties confirm that none of the Advances pursuant to the Existing Credit
Agreement has been repaid or replaced by new obligations as a result of this
Agreement. All such Advances shall be deemed to be Advances under
this Agreement as more specifically provided in Sections 2.3, 3.3, 4.3 and
5.3,
and all of the Obligations (as defined in the Existing Credit Agreement) shall
be deemed to be Obligations under this Agreement.
Without
in any way limiting the terms of the Existing Credit Agreement or the other
Loan
Documents, the Obligors confirm that the existing Security shall continue to
secure all of the Obligations, Intercompany Obligations and Other Secured
Obligations (or such part of them as is described in any particular document
forming part of the Security), including those arising as a result of this
Agreement. Any references in the Security or other Loan Documents to
the Existing Credit Agreement or section numbers in the Existing Credit
Agreement shall be interpreted as referring to this Agreement and the
corresponding Sections of it.
Certain
defined terms used in the Existing Credit Agreement, including "Credit
Documents," "Proportionate Share" and "Restricted Parties" have generally been
replaced in this Agreement by equivalent terms used in the Provisions, but
the
terms used in the Existing Credit Agreement may continue to be used in the
Security and other Loan Documents. It is intended that the equivalent
terms are interchangeable and, without limiting that statement, that the debts,
liabilities and obligations of the Restricted Parties that may be described
in
the Security are the same as those of the Obligors described in this
Agreement.
|
Confirmation
of Security
|
|
1.3.1
|
Each
Obligor hereby (i) acknowledges that it has received a copy of this
Agreement; and (ii) consents to the amendments to the Existing Credit
Agreement and the restatement of the Existing Credit
Agreement as so amended as set forth in this
Agreement.
|
|
1.3.2
|
Each
Obligor hereby confirms and agrees that the Security executed by
it (or
any of its predecessor entities, if applicable) continues to secure
all of
the debts, liabilities and obligations, direct or indirect, absolute
or
contingent, matured or unmatured, at any time due or accruing due
of each
such Obligor under or in connection with the Loan Documents to which
it is
a party.
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26
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1.3.3
|
Each
Obligor hereby confirms and agrees that the Security and the other
Loan
Documents executed by it (or any of its predecessor entities, if
applicable) in connection with the Existing Credit Agreement continue
to
be valid and enforceable against it in accordance with their respective
terms as of the date hereof.
|
|
1.3.4
|
The
Agent and each Obligor acknowledge, confirm and agree, with respect
to the
Security to which the Agent and such Obligor (including as a consequence
of being a successor entity to a predecessor party thereto) is a
party, as
follows:
|
|
|
(a)
|
such
Security accurately describes and contains the mutual understandings
of
the parties thereto with respect to the matters provided for therein;
and
|
|
|
(b)
|
other
than this Agreement, there are no oral or written statements or agreements
or courses of prior dealings among the parties to such Security,
or any
predecessor parties thereto, that would modify, amend, vary or override
any of the covenants, agreements, terms or conditions of such
Security.
|
|
1.3.5
|
Notwithstanding
the amendment and restatement of the Existing Credit Agreement by
way of
the execution and delivery of this Agreement or the execution and
delivery
of any additional Loan Documents in connection with this Agreement,
each
Obligor hereby irrevocably and unconditionally (i) acknowledges,
confirms
and agrees that the Security executed and delivered by it (or any
of its
predecessor entities, if applicable), and all of the covenants,
agreements, obligations and liabilities of such Obligor under such
Security are hereby ratified and confirmed, remain in full force
and
effect, and continue to constitute valid, binding and enforceable
covenants, agreements, obligations and liabilities of such Obligor,
and
(ii) ratifies, confirms and agrees to perform, observe, comply with
and be
bound by each and every covenant, agreement, term, condition, undertaking,
appointment, duty, guarantee, indemnity, debt, liability, obligation
and
security interest contained in, existing under or created by the
Security
executed and delivered by it (or any of its predecessor entities,
if
applicable).
|
|
1.3.6
|
Sections
1.3.2 to 1.3.5 inclusive do not apply to the Security to the extent
any
part of it has been expressly released in writing by the Agent on
behalf
of the Lenders before 22 December
2004.
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27
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ARTICLE
II
CREDIT
A
|
2.1
|
Amount
and Availment Options
|
|
2.1.1
|
Upon
and subject to the terms and conditions of this Agreement, the
Credit A Lenders agree to provide a credit for the use of CHC in the
amount of up to US $175,000,000 or the equivalent thereof in other
relevant Approved Currencies, which is referred to collectively as
Credit A and is comprised of a tranche of US $125,000,000
referred to as Credit A1 (which is also for the use of the Additional
Borrowers), a tranche of US $10,000,000 referred to as Credit A2
(which is also for the use of the Overdraft Borrowers) and a tranche
of up
to US $40,000,000 or the equivalent thereof in relevant Approved
Currencies referred to as "Credit A3" (which is also for the use of
the Additional Borrowers to the extent the Advances to CHC contemplated
in
Section 10.10(e) are repaid). Subject to Section 8.1, Advances
under Credit A1 and Credit A3 will be made by the Credit A
Lenders and Advances under Credit A2 will be made by
BNS.
|
|
2.1.2
|
At
the option of CHC or the Additional Borrowers, Credit A1 and Credit
A3 may be used by requesting Prime Rate Advances to be made by the
Credit A Lenders, by requesting Base Rate Advances in Approved
Currencies other than Canadian Dollars to be made by the Credit A
Lenders, by presenting orders to the Credit A Lenders for acceptance
as Bankers' Acceptances, by requesting that LIBOR Advances in Approved
Currencies other than Canadian Dollars be made by the Credit A
Lenders, or by requesting that L/Cs be issued by the Issuing Bank
on
behalf of all Credit A Lenders. The aggregate face amount
of L/Cs outstanding under Credit A at any time shall not, however,
exceed US $25,000,000 or the equivalent thereof in other Approved
Currencies.
|
|
2.1.3
|
Credit A2
may be used by CHC and the Overdraft Borrowers incurring overdrafts
in
their respective accounts with BNS, which shall be deemed to be Prime
Rate
Advances in the case of Canadian Dollar overdrafts and Base Rate
Advances
in the case of overdrafts in US Dollars and any other Approved Currencies
that are acceptable to BNS.
|
|
2.1.4
|
The
aggregate principal amount of Advances of any kind to Additional
Borrowers
and Overdraft Borrowers that are "Non-Guarantor Restricted Subsidiaries"
as defined in the Sub Debt Indenture shall be limited to the amount
permitted pursuant to clause 1008(b)(i) of the Sub Debt
Indenture.
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-
28
-
|
2.1.5
|
If
any Advance under Credit A is to be used for the purpose of making
an
acquisition of Capital Stock permitted by this Agreement that would
raise
issues under the "whitewash" provisions of the laws of the United
Kingdom
or Applicable Law in other jurisdictions that affects the ability
of any
Obligor to guarantee or provide security for the Advance, CHC shall
designate such Advance as an Advance used for such purpose and advise
the
Agent of such designation. Each such designated Advance shall
be repaid from (i) the net proceeds of one or more asset sales,
including any sale and leaseback transaction, (ii) from the
operational earnings of an Obligor, or (iii) another source if the
Agent is satisfied, with the advice of counsel, that such other source
of
repayment is adequate to satisfy the applicable "whitewash" or other
legal
issues. CHC shall provide notice to the Agent concurrently with
repayment of a designated Advance identifying the designated Advance
to
which such payment is to be applied and identifying the source of
the
funds used for such repayment to the reasonable satisfaction of the
Agent. Any such repayment shall be without prejudice to CHC's
right to obtain further Advances as permitted by this
Agreement.
|
|
2.2
|
Right
to Re-Borrow
|
Credit A
is a revolving credit and the principal amount of any Advance under
Credit A that is repaid may be re-borrowed if the Borrowers are otherwise
entitled to an Advance under Credit A, except that re-borrowing under
Credit A3 is also subject to CHC providing the Agent with an opinion of counsel
and other evidence satisfactory to the Agent that the re-borrowing is in
compliance with the Sub Debt Indenture because the indebtedness incurred by
re-borrowing has been classified as being incurred under section 1008(b)(i)
or
(xii) of the Sub Debt Indenture or has been incurred in compliance with section
1008(a) of the Sub Debt Indenture.
|
2.3
|
Use
of Credit A
|
Credit A3,
Credit A2 and Credit A1 shall be used as follows:
|
|
(a)
|
in
the case of Credit A3, to make or continue Advances to CHC as contemplated
in Section 10.10(e);
|
|
|
(b)
|
in
the case of Credit A2, to continue Advances made to CHC under
Credit A2 in the Existing Credit
Agreement;
|
|
|
(c)
|
in
the case of Credit A1, to continue Advances under Credit A1 in the
Existing Credit Agreement in excess of those continued under Credit
A3;
|
|
|
(d)
|
as
to the balance, to assist in financing the general corporate requirements
of the Obligors, including Capital Expenditures and acquisitions
that are
permitted by this Agreement.
|
|
2.4
|
Term
and Repayment
|
Credit A
shall be repaid in full and cancelled on or before 22 December
2007.
-
29
-
|
2.5
|
Interest
Rates and Fees
|
Interest
on Prime Rate Advances and Base Rate Advances shall be the Prime Rate or the
applicable Base Rate, respectively, plus 0.125% per annum. The
Bankers' Acceptance Fee and the fee for L/Cs shall be 1.125% per
annum. Interest on LIBOR Advances shall be the relevant LIBO Rate
plus 1.125% per annum.
Interest
and fees for Credit A1 and Credit A3 shall be promptly distributed by the
Agent to the Credit A Lenders based on their respective Applicable
Percentages as adjusted in accordance with Section 8.2. Subject to
Section 8.1, interest for Credit A2 shall paid to BNS for its own
account. In addition, a fronting fee on the amount of each L/C will
be payable to the Issuing Bank for its own account in accordance with the Fee
Agreement or as otherwise agreed between the Issuing Bank and CHC.
|
2.6
|
Standby
Fees
|
CHC
shall pay a standby fee on the daily unadvanced portion of Credit A at a
rate of 0.30% per annum. The standby fee shall be
calculated daily beginning on 22 December 2004 and shall be payable on the
first
Business Day of each of January, April, July and October in respect of the
preceding calendar quarter, beginning on 4 January 2005. Upon
final payment of the Obligations under Credit A, CHC shall also pay the
accrued standby fee for the elapsed portion of the quarter in which final
payment is made. Standby fees for Credit A1 and Credit A3 shall
be promptly distributed by the Agent to the Credit A Lenders based on their
respective Applicable Percentages as adjusted in accordance with Section
8.2. Subject to Section 8.1, standby fees for Credit A2 shall
paid to BNS for its own account.
|
2.7
|
Other
Fees Payable to Lenders and
Agent
|
CHC
shall, concurrently with the execution of this Agreement, pay non-refundable
upfront and other fees to the Lenders as agreed between CHC and the
Lenders.
CHC
shall also pay annual agency fees to the Agent in accordance with the Fee
Agreement. The processing and recordation fee payable to the Agent as
contemplated in section 10(b)(vi) of the Provisions is $3000.
ARTICLE
III
CREDIT
B
|
3.1
|
Amount
and Availment Options
|
|
3.1.1
|
Upon
and subject to the terms and conditions of this Agreement, the Credit
B
Lenders agree to provide a credit for the use of the European Borrowers
in
the amount of up to £6,788,866 or the equivalent thereof in other relevant
Approved Currencies which is referred to collectively as Credit B
and is
comprised of a tranche of £4,788,866 referred to as Credit B1 and a
tranche of £2,000,000 referred to as Credit B2. Subject to
Section 8.1, Advances under Credit B1 will be made by the Credit
B Lenders
and Advances under Credit B2 will be made by
Nordea.
|
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30
-
|
3.1.2
|
At
the option of the European Borrowers, Credit B1 may be used by the
European Borrowers by requesting Base Rate Advances to be made by
the
Credit B Lenders in Approved Currencies other than Canadian Dollars,
by
requesting that LIBOR Advances be made by the Credit B Lenders in
Approved
Currencies other than Canadian Dollars, or by requesting that L/Cs
be
issued by the Issuing Bank on behalf of all Credit B
Lenders. The aggregate face amount of L/Cs outstanding under
Credit B1 at any time shall not, however, exceed £3,500,000 or the
equivalent thereof in other relevant Approved
Currencies.
|
|
3.1.3
|
Credit
B2 may be used by the European Borrowers by obtaining Base Rate Advances
in Approved Currencies other than Canadian Dollars acceptable to
Nordea
pursuant to arrangements agreed upon between the European Borrowers
and
Nordea from time to time, which may include incurring overdrafts
in
accounts with Nordea.
|
|
3.1.4
|
The
aggregate principal amount of Advances of any kind to European Borrowers
that are "Non-Guarantor Restricted Subsidiaries" as defined in the
Sub
Debt Indenture shall be limited to the amount permitted pursuant
to clause
1008(b)(i) of the Sub Debt
Indenture.
|
|
3.2
|
Revolving
Credit
|
Credit B
is a revolving credit and the principal amount of any Advance under
Credit B that is repaid may be reborrowed if the European Borrowers are
otherwise entitled to an Advance under Credit B.
|
3.3
|
Use
of Credit B
|
Credit B
shall be used to continue Advances made under Credit B in the Existing Credit
Agreement and thereafter to assist in financing the general corporate
requirements of the Obligors.
|
3.4
|
Term
and Repayment
|
Credit
B shall be repaid in full and cancelled on or before 22 December
2007.
|
3.5
|
Interest
Rates and Fees
|
Interest
on Base Rate Advances shall be the applicable Base Rate plus 1.125% per
annum. The fee for L/Cs shall be 1.125% per
annum. Interest on LIBOR Advances shall be the relevant LIBO Rate
plus 1.125% per annum.
Interest
and fees for Credit B1 shall be promptly distributed by the Agent to the Credit
B Lenders based on their respective Applicable Percentages as adjusted in
accordance with Section 8.2. Subject to Section 8.1, interest
for Credit B2 shall be paid to Nordea for its own account. In
addition, unless the Issuing Bank is the only Credit B Lender at the relevant
time, a fronting fee on the amount of each L/C will be payable to the Issuing
Bank for its own account in accordance with the Fee Agreement or
otherwise.
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31
-
|
3.6
|
Standby
Fees
|
The
European Borrowers shall pay a standby fee on the daily unadvanced portion
of
Credit B at a rate of 0.30% per annum. The standby fee shall be
calculated daily beginning on 22 December 2004 and shall be payable on the
first
Business Day of each of January, April, July and October in respect of the
preceding calendar quarter, beginning on 4 January 2005. Upon
final payment of the Obligations under Credit B, the European Borrowers shall
also pay the accrued standby fee for the elapsed portion of the quarter in
which
final payment is made. Standby fees for Credit B1 shall be promptly
distributed by the Agent to the Credit B Lenders based on their respective
Applicable Percentages as adjusted in accordance with Section
8.2. Subject to Section 8.1, standby fees for Credit B2 shall be paid
to Nordea for its own account.
ARTICLE
IV
CREDIT C
|
4.1
|
Amount
and Availment Options
|
Upon
and subject to the terms and conditions of this Agreement, the Credit C Lenders
agree to provide a credit for the use of CHC in the amount of £7,591,515.46 or
the equivalent thereof in other relevant Approved Currencies. Credit
C may be used by requesting Prime Rate Advances to be made by the Credit C
Lenders, by requesting Base Rate Advances to be made by the Credit C Lenders
in
Approved Currencies other than Canadian Dollars, by presenting orders to the
Credit C Lenders for acceptance as Bankers' Acceptances, or by requesting that
LIBOR Advances be made by the Credit C Lenders in Approved Currencies other
than
Canadian Dollars.
|
4.2
|
Non-Revolving
Credit
|
Credit C
is a non-revolving credit and the principal amount of any Advance under
Credit C that is repaid may not be reborrowed.
|
4.3
|
Use
of Credit C
|
Credit C
shall be used by CHC to continue Advances made to CHC under Credit C in the
Existing Credit Agreement and no further funds shall be advanced
thereafter.
|
4.4
|
Term
and Repayment
|
The
principal amount of Credit C
shall be repaid and permanently reduced by quarterly instalments on the last
Business Days of each of October, January, April and July of each year,
beginning in January 2005, each in the amount of
₤379,575.77 or, if other Approved Currencies are outstanding,
amounts in the
other Approved Currencies as determined by the Agent based on repayment of
Credit C in 20 equal instalments if no prepayments are made. In
addition to the scheduled repayments and reductions, Credit C shall be repaid
and permanently reduced in accordance with Section 5.6.
Credit
C shall, in any event, be repaid
in full and cancelled on or before 22 December 2009.
-
32
-
|
4.5
|
Interest
Rates and Fees
|
Interest
on Prime Rate Advances and Base Rate Advances shall be the Prime Rate or the
applicable Base Rate, respectively, plus 0.125% per annum. The
Bankers' Acceptance Fee shall be 1.125% per annum. Interest on LIBOR
Advances shall be the relevant LIBO Rate plus 1.125% per annum.
Interest
and fees shall be promptly distributed by the Agent to the Credit C Lenders
based on their respective Applicable Percentages.
ARTICLE
V
CREDIT E
|
5.1
|
Amount
and Availment Options
|
Upon
and subject to the terms and
conditions of this Agreement, the Credit E Lenders agree to provide a credit
for
the use of CHC in the amount of €66,111,723 or the
equivalent amount in other Approved Currencies, which will be comprised of
a
tranche of €19,516,531 referred to as "Tranche 1," a tranche of €40,000,000
referred to as "Tranche 2" and a tranche of €6,595,192 referred to as "Tranche
3." Credit E may be used by requesting Prime Rate Advances to be made
by the Credit E Lenders, by requesting Base Rate Advances to be made by the
Credit E Lenders in Approved Currencies other than Canadian Dollars, by
presenting orders to the Credit E Lenders for acceptance as Bankers'
Acceptances, or by requesting that LIBOR Advances be made by the Credit E
Lenders in Approved Currencies other than Canadian Dollars.
Credit
E has been fully advanced and only rollovers and conversions are
available. Tranche 1 was used by CHC to fund, through other
Obligors including CHC Sweden AB, part of the purchase price for all of the
issued and outstanding shares of Xxxxxxxxx. Tranche 2 was used by CHC
to fund, through other Obligors, the remainder of the purchase price for all
of
the issued and outstanding shares of Xxxxxxxxx and to finance CHC's transaction
costs relating to the Xxxxxxxxx Acquisition. Tranche 3 was used by
CHC, directly or through other Obligors, to refinance the existing debt of
Xxxxxxxxx and its Subsidiaries and to provide additional working capital for
CHC
and the other Obligors.
-
33
-
|
5.2
|
Non-Revolving
Credit
|
Credit E
is a non-revolving credit and the principal amount of any Advance under
Credit E that is repaid may not be reborrowed.
|
5.3
|
Use
of Credit E
|
Credit E
shall be used by CHC to continue Advances made to CHC under Credit E in the
Existing Credit Agreement and no further funds shall be advanced
thereafter.
|
5.4
|
Term
and Repayment
|
The
principal amount of Credit E
shall be repaid and permanently reduced by quarterly instalments on the last
Business Days of each of October, January, April and July of each year,
beginning in January 2005, each in the amount of
€3,305,586.15 or, if other Approved Currencies are outstanding,
amounts in the
other Approved Currencies as determined by the Agent based on repayment of
Credit E in 20 equal instalments if no prepayments are made. In
addition to the scheduled repayments and reductions, Credit E shall be repaid
and permanently reduced in accordance with Section 5.6. All payments
in respect of Credit E that are made before the occurrence of any event by
which
any of the Obligations become due and payable under Section 11.2 shall be
applied to Tranche 1 until it has been repaid in full and then applied to
Tranche 2 until it has been repaid in full.
Credit
E shall, in any event, be repaid
in full and cancelled on or before 22 December 2009.
|
5.5
|
Interest
Rates and Fees
|
Interest
on Prime Rate Advances and Base Rate Advances shall be the Prime Rate or the
applicable Base Rate, respectively, plus 0.125% per annum. The
Bankers' Acceptance Fee shall be 1.125% per annum. Interest on LIBOR
Advances shall be the relevant LIBO Rate plus 1.125% per annum.
Interest
and fees shall be promptly distributed by the Agent to the Credit E Lenders
based on their respective Applicable Percentages.
|
5.6
|
Prepayments
of Credits
|
|
5.6.1
|
The
Credits shall be permanently repaid and cancelled with 100% of the
proceeds if an Obligor sells or otherwise disposes (including by
way of
lease with an option to purchase at less than fair market value,
sale as
part of a sale and leaseback transaction or "lease out" as part of
a
"lease out, lease in" transaction) of any part of its Property, including
Capital Stock that it owns, or if any Property of an Obligor is
expropriated, condemned, destroyed, damaged or otherwise lost, except
for
the following:
|
-
34
-
|
|
(a)
|
proceeds
of the sale of inventory in the ordinary course of its
business;
|
|
|
(b)
|
proceeds
equal to the direct out of pocket fees, commissions and other costs
of the
disposition;
|
|
|
(c)
|
proceeds
equal to an allowance determined by CHC's auditors and approved by
the
Agent for future income tax payable by CHC as a result of the capital
gain
or income from the disposition;
|
|
|
(d)
|
proceeds
that are re-invested in fixed assets by the Obligors within 12 months
of
the date of receipt thereof;
|
|
|
(e)
|
exceptions
regarding proceeds of insurance specified in Section
10.9;
|
|
|
(f)
|
other
proceeds up to an aggregate for all Obligors of US $10,000,000 per
annum.
|
|
5.6.2
|
The
Required Lenders may require that proceeds referred to in Section
5.6.1,
except those mentioned in Sections 5.6.1(a) and 5.6.1(b), be immediately
used to repay and permanently reduce the Credits if a Default has
occurred
and is continuing.
|
|
5.6.3
|
The
proceeds referred to in Section 5.6.1 and any proceeds of business
interruption insurance held by an Obligor, to the extent that they
are not
immediately subject to one of the exceptions in that Section, shall
be
used to repay Credits A or B or both, without prejudice to the
Borrowers' right to obtain further Advances under those
Credits. If nothing is outstanding under Credits A
and B, any such proceeds shall be held by the Agent as part of the
Security until applied to payment of the Obligations or released
to the
affected Obligor. The Agent shall place all such funds in an
interest-bearing account with the interest thereon to accrue to the
benefit of the affected Obligor.
|
|
5.6.4
|
Prepayments
required under Section 5.6.1 shall be applied first to Credit E until
it
has been repaid in full and cancelled, then to Credit C until it
has been
repaid in full and cancelled, then to repay and permanently reduce
the
maximum amount available under either Credit A or Credit B as determined
by the Borrowers, until each has been repaid in full and
cancelled. Mandatory and voluntary prepayments of Credits C and
E shall be applied to reduce the scheduled instalments of Credits
C and E,
including the payment due on maturity, in inverse order of their
due
dates.
|
|
5.6.5
|
The
provisions of this Section concerning use of proceeds shall not affect
any
provision of this Agreement that requires the consent of the Lenders
or
any of them to any sale or other matter contemplated
above.
|
-
35
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ARTICLE
VI
SECURITY
AND EXCHANGE RATE FLUCTUATIONS
|
6.1
|
Security
|
|
6.1.1
|
The
Security includes the following (which may have been delivered pursuant
to
the Existing Credit Agreement), all in form and substance satisfactory
to
the Lenders and subject only to Permitted
Encumbrances:
|
|
|
(a)
|
security
over all present and future Property of each Obligor pursuant to
appropriate forms of security in each jurisdiction, including fixed
charges over all material freehold and leasehold real property (as
determined by the Agent from time to time) and all Aircraft, by each
Obligor in favour of the Agent for the benefit of the
Lenders;
|
|
|
(b)
|
pledges
in favour of the Agent for the benefit of the Lenders of all Capital
Stock
of the Obligors other than CHC that is owned by the other Obligors
from
time to time;
|
|
|
(c)
|
pledges
in favour of the Agent for the benefit of the Lenders of all Capital
Stock
of persons other than Obligors that is owned by the Obligors from
time to
time;
|
|
|
(d)
|
specific
assignments in favour of the Agent for the benefit of the Lenders
of all
Restricted Intercompany
Obligations;
|
|
|
(e)
|
unconditional
guarantees of the Obligations by each of the Obligors (other than
those
Obligations in respect of which it is the Borrower), either directly
or by
way of guarantee of a guarantee given by another Obligor, which guarantees
shall be unlimited except for limits imposed by Applicable
Law.
|
|
6.1.2
|
Except
for the companies listed in items 2, 3, 12, 14 and
18 of SCHEDULE J, if at any
time CHC directly or indirectly owns, establishes or acquires a Subsidiary
that is wholly owned by CHC or is acquired pursuant to Section
10.6.2(c)(ii), CHC shall immediately cause that Subsidiary to become
an
Obligor, adopt this Agreement by delivering an agreement in the form
of
SCHEDULE B so as to be bound by all of the terms applicable to Obligors
as
if it had executed this Agreement as an Obligor, and deliver a guarantee
and other security documents similar to those delivered by other
Obligors,
which shall become part of the Security. CHC shall also deliver
or cause the delivery of a pledge of all of the Capital Stock of
the new
Subsidiary as part of the Security and cause the delivery of such
legal
opinions and other supporting documents as the Agent may reasonably
require.
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36
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|
6.1.3
|
If
at any time any Obligor owns or obtains an interest in a person that
is
not a wholly owned Subsidiary, CHC shall cause that interest to
immediately be pledged as part of the Security and cause the delivery
of
such legal opinions and other supporting documents as the Agent may
reasonably require.
|
|
6.1.4
|
Each
Obligor shall, immediately on receipt, deliver to the Agent for the
benefit of the Lenders, certificates representing all Capital Stock
of
other Obligors and of other persons in which it owns Capital Stock
that it
acquires after the date that Capital Stock of the Obligors or other
persons is first delivered as part of the Security, together with
executed
stock powers of attorney relating to those certificates (or if
certificates in respect of such Capital Stock are not available,
take such
other steps to perfect the Security relating to such Capital Stock
as the
Agent requires), and shall also deliver to the Agent originals of
any
future promissory notes and similar instruments evidencing Restricted
Intercompany Obligations, endorsed for payment to the Agent on behalf
of
the Lenders.
|
|
6.1.5
|
Each
Obligor shall, immediately on the acquisition of any material freehold
or
leasehold real property (as determined by the Agent) or any Aircraft,
grant to the Agent for the benefit of the Lenders, a fixed charge
over
that freehold or leasehold real property or
Aircraft.
|
|
6.1.6
|
In
order to perfect the Security, CHC shall, in consultation with the
Agent,
and as directed by the Agent in the case of any
uncertainty:
|
|
|
(a)
|
concurrently
with the execution of any document forming part of the Security,
arrange
to register, file or record the document and/or, if applicable, financing
statements or other prescribed statements in respect thereof, and
take
other actions, as may from time to time be necessary or desirable
in
perfecting, preserving or protecting the Security, wherever such
registration, filing, recording or other action may be necessary
or
desirable;
|
|
|
(b)
|
whenever
necessary or desirable, including in the circumstances contemplated
in
Sections 10.6.3(b) and 10.6.3(c) and SCHEDULE L, arrange to renew
or amend
such registrations, filings and recordings and make additional
registrations, filings and recordings and take other actions as are
necessary or desirable to maintain the Security as valid and effective
security with the priority required by this
Agreement;
|
|
|
(c)
|
promptly
after taking any action contemplated in this Section 6.1.6, cause
documents, including opinions of counsel satisfactory to the Agent,
to be
delivered to the Agent evidencing such action and confirming that
the
provisions of this Section have been complied
with.
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37
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|
6.1.7
|
Notwithstanding
the foregoing, if Applicable Law or the terms of any shareholders
agreement affecting persons other than Obligors prevent an Obligor
from
granting Security as required above or require that the scope or
obligations secured by the Security be limited, the Security required
above shall be varied accordingly. In particular, the Lenders
acknowledge that:
|
|
|
(a)
|
the
laws of Norway in effect prevent Obligors incorporated in Norway
from
guaranteeing or providing security for the Obligations as they exist
at 22
December 2004 and the laws of Luxembourg in effect prevent CHC Reinsurance
S.A. from becoming an Obligor;
|
|
|
(b)
|
although
the Security given by the Norwegian Obligors at 22 December 2004
refers to
securing, among other things, debts, liabilities and obligations
of those
Obligors under or in connection with this Agreement, those Obligors
are
not currently Borrowers and will not currently be guaranteeing or
providing security for the Obligations or Intercompany Obligations
owed by
their direct or indirect shareholders, except as permitted by the
laws of
Norway;
|
|
|
(c)
|
once
the Intercompany Obligations of the Norwegian Obligors that are secured
by
their Security have been indefeasibly paid and performed, they will,
in
the absence of any other obligations secured by their Security at
the
relevant time, be entitled to a release of their Security notwithstanding
that the Intercompany Obligations have been assigned to secure all
of the
Obligations;
|
|
|
(d)
|
it
is not possible to effectively pledge the Capital Stock of certain
Scottish Obligors by transfer of the Capital Stock held by other
Obligors
since to do so might adversely affect the Permits for the operation
of
Aircraft held by Scottish Obligors;
|
|
|
(e)
|
the
laws of the Netherlands in effect prevent Xxxxxxxxx and its Subsidiaries
from guaranteeing or giving security for the Obligations under or
in
connection with Tranche 1 and Tranche
2;
|
|
|
(f)
|
the
laws of Denmark do not provide an effective method for Danish Obligors
to
provide security over their accounts receivable, inventory and fixed
assets, apart from Capital Stock, Aircraft and real
property;
|
|
|
(g)
|
the
Security provided by an Obligor incorporated in Denmark shall be
limited
to the extent such Security or the enforcement thereof would constitute
a
breach of the provisions contained in sections 115 and 115a of the
Danish Public Limited Companies Act or Sections 49 and 50 of the
Danish Private Limited Companies
Act.
|
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38
-
|
|
(h)
|
the
Security provided by an Obligor incorporated in Sweden shall be limited
to
the extent such Security or the enforcement thereof would constitute
a
breach of the provisions contained in chapter 12, section 2 of the
Swedish Companies Act.
|
In
addition, the Agent may excuse Obligors from delivering security documents
covering types of Property that they do not own, if the security documents
they
deliver cover the types of Property they are permitted to own by Schedule
K.
|
6.1.8
|
Any
Obligor that has not delivered Security as required by Section 6.1.1,
including any guarantee that is limited as to amount or obligations
guaranteed or any Security over Property that does not cover all
of the
Property referred to in that Section, shall promptly deliver amended
or
supplementary guarantees or other Security from time to time in response
to the reasonable request of the Agent (acting on the instructions
of the
Required Lenders) if it is then entitled under Applicable Law to
increase
the limit of its guarantee or otherwise expand the scope of the Security
it has delivered.
|
|
6.2
|
Obligations
Secured by the Security
|
Unless
otherwise agreed by the Lenders among themselves, and except as provided in
Section 6.1.7, the Security shall secure the following obligations
pari passu with each other and in priority to any other debts,
liabilities and obligations secured by the Security:
|
|
(a)
|
the
Obligations;
|
|
|
(b)
|
the
Intercompany Obligations to the extent they are assigned to the Agent
for
the benefit of the Lenders;
|
|
|
(c)
|
the
present and future debts, liabilities and obligations of an Obligor
to any
Lender (collectively, the "Other Secured Obligations") under or in
connection with (i) Swaps that do not have a term of longer than five
years and do not have an aggregate notional amount
greater than US $400,000,000 or the equivalent
amount in other currencies by all Obligors under all such transactions
that are outstanding at any time and otherwise comply with Section
10.6.1(d) and (ii) other transactions not made under this Agreement
that are listed in SCHEDULE G as of 22 December 2004, or if it is
agreed
by the Obligors and the Agent acting on the instructions of the Required
Lenders after 22 December 2004 that such debts, liabilities and
obligations shall be secured.
|
-
39
-
As
of 22 December 2004, the Other Secured Obligations are those listed in SCHEDULE
G. The Agent may from time to time prepare and provide the Lenders
and CHC with a revision of SCHEDULE G to reflect changes in the Other Secured
Obligations, but the Agent's failure to do so shall not affect the security
for
the Other Secured Obligations if it has been agreed in accordance with this
Section that they shall be secured by the Security. Other
Secured Obligations listed on SCHEDULE G from time to time shall be conclusively
deemed to be secured by the Security (in the absence of manifest error) and
shall not cease to be secured without the prior written consent of the
respective Lenders to whom the Other Secured Obligations are owed.
Notwithstanding
the rights of Lenders to benefit from the Security in respect of the Other
Secured Obligations, all decisions concerning the Security and the enforcement
thereof shall be made by the Lenders or the Required Lenders in accordance
with
this Agreement. No Lender holding Other Secured Obligations from time
to time shall have any additional right to influence the Security or the
enforcement thereof as a result of holding Other Secured Obligations as long
as
this Agreement remains in force. However, the Other Secured
Obligations shall continue to be secured by the Security notwithstanding the
termination of this Agreement by reason of payment of the Credits, or for any
other reason. After the termination of this Agreement, decisions
concerning the Security shall be made by the holders of Other Secured
Obligations as they may determine among themselves.
Subject
to Section 6.1.7, the Security shall also secure all Intercompany Obligations,
not only while the Intercompany Obligations are assigned to the Agent for the
benefit of the Lenders but also for the benefit of the Obligors to whom they
are
owed if the Intercompany Obligations are no longer assigned to the Agent
following repayment of the Obligations and the Other Secured Obligations and
termination of this Agreement. The Obligors to whom Intercompany
Obligations are owed (but for their having been assigned as part of the
Security) shall have no right to influence the Security or the enforcement
thereof, or to receive any proceeds thereof, as a result of their interest
in
the Intercompany Obligations until the Obligations and the Other Secured
Obligations have been paid in full and this Agreement has been terminated,
and
any action or omission of the Agent or the Lenders concerning the Security
shall
be binding on the Obligors. However, following repayment of the
Obligations and the Other Secured Obligations and termination of this Agreement,
the Agent shall assign the Security securing Intercompany Obligations as CHC
may
direct. Any such assignment shall be without representation by or
recourse to the Agent and the Lenders and shall be at the expense of
CHC.
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40
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|
6.3
|
Exchange
Rate Fluctuations
|
If
fluctuations in rates of
exchange in effect between relevant Approved Currencies cause the amount of
Advances (expressed in US Dollars in the case of Credits A and B, British Pounds
in the case of Credit C and Euros in the case of Credit E, in each case based
on
the Exchange Rate in effect from time to time) to any Borrower under Credits
A,
B, C or E to exceed the maximum amount of that Credit permitted herein by five
percent or more at any time, the relevant Borrower or Borrowers (as determined
by the Agent) shall pay the Lenders immediately on demand such amount as is
necessary to repay the excess. If a Borrower is unable to immediately
pay that amount because LIBOR Periods have not ended, Bankers' Acceptances
have
not matured or L/Cs are outstanding, that Borrower shall, immediately on demand,
post Cash Collateral in the amount of the excess, which shall form part of
the
Security and be held until the amount of the excess is paid in full or is less
than five percent. If, on the date of any Advance under Credits A, B,
C or E (whether by rollover, conversion or otherwise), the amount of Advances
(expressed in US Dollars in the case of Credits A and B, British Pounds in
the
case of Credit C and Euros in the case of Credit E, in each case based on the
Exchange Rate in effect from time to time) under that Credit exceeds the maximum
amount of that Credit permitted herein because of fluctuations in rates of
exchange, the relevant Borrower or Borrowers (as determined by the Agent) shall
immediately pay the Lenders the excess and shall not be entitled to any Advance
that would result in the amount of that Credit being exceeded.
|
6.4
|
Borrowing
Base
|
|
6.4.1
|
CHC
shall ensure that the Borrowing Base is at all times equal to at
least
1.20 times the aggregate of (a) the principal amount of all Advances
outstanding, (b) the absolute value of the aggregate Market Value
of all
Swaps that are Other Secured Obligations and that have a negative
Market
Value from the Obligors' perspective after offsetting the Market
Value of
Swaps with the same or another Lender that are Other Secured Obligations
and that have a positive Market Value and (c) an amount representing
the
exposure in respect of Other Secured Obligations that are not Swaps,
calculated on a basis agreed to by the Required Lenders. The
Borrowers shall not be entitled to receive Advances that would result
in
the Borrowing Base being less than 1.20 times the aggregate of those
amounts and shall immediately repay Advances or post Cash Collateral
to
the extent that the Borrowing Base is ever less than 1.20 times the
aggregate of those amounts, but CHC may submit a new calculation
of its
Borrowing Base from time to time between submissions of its Reporting
Certificates.
|
|
6.4.2
|
Notwithstanding
Sections 5.6 and 6.1 and SCHEDULE L, if no Default has occurred and
is
continuing, CHC shall not be required to repay Advances in the
circumstances described in Section 5.6 nor shall an Obligor be required
to
give Security over part or all of its Property if, in either case,
the
failure to do so does not result in a breach of Section
6.4.1. Nothing in this Section 6.4.2 shall, however, excuse CHC
from causing a Subsidiary to become an Obligor and deliver a guarantee
and
from delivering or causing the delivery of a pledge of all of the
Capital
Stock of the Subsidiary if otherwise required by Section
6.1. For greater certainty, although the first sentence of this
Section 6.4.2 may excuse CHC from repaying Advances with the proceeds
of
disposition of certain Property, under Section 10.6.1(b) CHC is not
permitted to make principal payments in respect of the Sub Debt and
must
therefore repay Advances with the proceeds of disposition of Property
to
the extent that the Sub Debt Indenture would otherwise require CHC
to
repay the Sub Debt.
|
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41
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ARTICLE
VII
DISBURSEMENT
CONDITIONS
|
7.1
|
Conditions
Precedent to Initial
Advance
|
The
following conditions precedent must be satisfied at or before the time of the
first Advance under this Agreement, unless waived in accordance with Section
12.2.2. Where delivery of documents is referred to, the documents
shall be delivered to the Agent, for and on behalf of the Lenders, and shall
be
in full force and effect and in form and substance satisfactory to the
Lenders. Documents delivered in connection with the Existing Credit
Agreement need not be delivered again in connection with this Agreement if
they
have not been amended since then and do not require confirmation.
|
7.1.1
|
Other
Debt and Encumbrances - The Agent shall have
received:
|
|
|
(a)
|
a
certificate of CHC with copies of all documents necessary to fully
and
fairly disclose all material terms of the Sub
Debt;
|
|
|
(b)
|
evidence
that all Debt of the Obligors not forming part of Permitted Obligations
(including the USD 30,000,000 temporary credit extended by BNS) has
been
or will be paid and performed in full concurrently with the first
Advance
and that all security held in connection therewith has been or will
be
promptly released;
|
|
|
(c)
|
releases,
discharges and postponements (in registrable form where appropriate)
covering all Encumbrances affecting the collateral Encumbered by
the
Security which are not Permitted Encumbrances, and all statements
and
acknowledgments that are required in respect of other security interests
affecting the Property of the Obligors or other parties delivering
Security to confirm that the collateral Encumbered by those Encumbrances
does not include the collateral Encumbered by the Security or is
a
Permitted Encumbrance.
|
|
7.1.2
|
Financial
Information - The Agent shall have
received:
|
|
|
(a)
|
a
certificate of CHC containing its audited consolidated financial
statements for its fiscal period ended on 30 April 2004 and its
consolidated financial statements for its fiscal period ended on
31 October 2004 (and the Lenders must be satisfied with the matters
disclosed by those statements);
|
|
|
(b)
|
a
Reporting Certificate for the fiscal period ended 31 October
2004.
|
|
7.1.3
|
Security
and Other Documents - The Agent shall have
received:
|
|
|
(a)
|
duly
executed copies of this Agreement and the Security, duly registered
as
required;
|
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42
-
|
|
(b)
|
certificates
representing the Pledged Shares (unless certificates have not been
and are
not customarily issued for any particular Pledged Shares), and executed
stock powers of attorney relating to those
certificates;
|
|
|
(c)
|
certificates
of insurance or other evidence that the covenants and conditions
of the
Loan Documents concerning insurance coverage are being complied
with;
|
|
|
(d)
|
the
Fee Agreement;
|
|
|
(e)
|
consents
in respect of the Security from landlords of leasehold real property
in
which any Obligor carries on business, if any are required by the
Agent.
|
|
7.1.4
|
Corporate
and Other Information - The Agent shall have
received:
|
|
|
(a)
|
a
certificate of each Obligor with copies of its Constating Documents,
a
list of its officers and directors with specimens of their signatures
and
copies of the corporate proceedings taken to authorize it to execute,
deliver and perform its obligations under the Loan
Documents;
|
|
|
(b)
|
evidence
that the delivery of Loan Documents will not contravene laws governing
financial assistance or other similar laws which affect the Loan
Documents;
|
|
|
(c)
|
consents
that are required from the directors, shareholders or partners of
the
Obligors, either in connection with the pledges of Pledged Shares
or in
connection with any disposition of the Pledged Shares pursuant to
the
Security;
|
|
|
(d)
|
certified
copies of all documents necessary to disclose all material terms
of and
arrangements relating to Restricted Intercompany Obligations, including
loan agreements, and original promissory notes and similar instruments
evidencing Restricted Intercompany Obligations, endorsed for payment
to
the Agent on behalf of the Lenders.
|
|
7.1.5
|
Opinions - The
Agent shall have received:
|
|
|
(a)
|
the
opinion of Xxxxxx Xxxxxx Xxxxxxx LLP, counsel to the Lenders, addressed
to
the Agent and the Lenders;
|
|
|
(b)
|
the
opinion of Xxxxxx Xxxxxxx, Canadian counsel to the Obligors, addressed
to
the Agent and the Lenders;
|
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43
-
|
|
(c)
|
the
opinion of Shearman & Sterling LLP, counsel to the Obligors in
connection with the Sub Debt, addressed to the Agent and the
Lenders;
|
|
|
(d)
|
the
opinions of Dundas & Xxxxxx and Xxxxx & Williamsons,
Scottish counsel to the Lenders and the Obligors, respectively, addressed
to the Agent and the Lenders;
|
|
|
(e)
|
the
opinion of Thommessen Xxxxxxxx Xxxxx Xxxx and Advokatfirmaet Wiersholm,
Mellbye & Bech ANS, Norwegian counsel to the Lenders and the Obligors,
respectively, addressed to the Agent and
Lenders;
|
|
|
(f)
|
the
opinions of local counsel in the Netherlands, Sweden, Denmark, Ireland,
Barbados, Australia, South Africa and other jurisdictions as required
by the Lenders, addressed to the Agent and
Lenders.
|
|
7.1.6
|
Other
Matters - The following conditions must also be
satisfied:
|
|
|
(a)
|
The
Lenders must be satisfied that there has not occurred or does not
exist a
circumstance or event which would or does have a material adverse
effect
on the business, condition (financial or otherwise), Property or
prospects
of the Obligors taken as a whole since 30 April 2004, on the rights
and
remedies of the Lenders or on the ability of any Obligor to perform
its
obligations to the Lenders.
|
|
|
(b)
|
The
Borrowers must have paid all interest and fees, including standby
fees,
owing under the Existing Credit Agreement up to the date of the initial
Advance under this Agreement.
|
|
|
(c)
|
The
Agent and Lenders shall have received payment of all fees and expenses
then owing to them by the
Borrowers.
|
|
|
(d)
|
The
Agent shall have received such other documents as the Lenders may
reasonably require.
|
|
7.2
|
Conditions
Precedent to all Advances
|
The
obligation of the Lenders to make any Advance is subject to the conditions
precedent that:
|
|
(a)
|
no
Default has occurred and is continuing on the Drawdown Date, or would
result from making the Advance;
|
|
|
(b)
|
there
has not occurred or does not exist a circumstance or event which
would or
does have a material adverse effect on the business, condition (financial
or otherwise), Property or prospects of the Obligors taken as a whole,
on
the rights and remedies of the Lenders or on the ability of any Obligor
to
perform its obligations to the
Lenders;
|
-
44
-
|
|
(c)
|
the
Agent has received timely notice as required under Section
8.6;
|
|
|
(d)
|
the
Advance is in compliance with the Sub Debt Indenture (including any
limitation on additional indebtedness contained in the Sub Debt Indenture)
and will not contravene or cause a default under the Sub Debt
Indenture;
|
|
|
(e)
|
all
other terms and conditions of this Agreement upon which an Advance
may be
obtained are fulfilled.
|
ARTICLE
VIII
ADVANCES
|
8.1
|
Lenders'
Obligations Relating to L/Cs and Credits A and
B
|
Notwithstanding
that L/Cs under Credits
A and B are issued by an Issuing Bank, it is the intention of the parties that
the ultimate credit risk and exposure of any Lender be in accordance with its
overall Applicable Percentage of Credits A and B, respectively. Each
Lender shall (and hereby absolutely, unconditionally and irrevocably agrees
to)
indemnify the Issuing Bank for that Lender’s Applicable Percentage under the
applicable Credit of any payment made by the Issuing Bank in respect of an
L/C
for which the Issuing Bank is not immediately reimbursed by the relevant
Borrower, and shall do all such things, including assignments to other Lenders
of Advances made by the Issuing Bank, as shall be required to ensure that
result. Any such action on the part of the Lenders shall be binding
on that Borrower. If the rating of the non-credit-enhanced senior
debt of any Lender by Standard & Poor's Corporation or Xxxxx'x Investors
Services Inc. is at any time less than "A" or "A2" respectively, that Lender
shall, if requested by an Issuing Bank, provide Cash Collateral (in a form
satisfactory to the Issuing Bank acting reasonably) to secure that Lender's
obligations under this clause.
Similarly,
notwithstanding that
Advances under Credit A2 are for the time being made by BNS and its
participation in Advances under Credit A1 and Credit A3 is reduced, and the
participation of the other Credit A Lenders is increased, in accordance with
Section 8.2, it is the intention of the parties that the ultimate credit risk
and exposure of any Credit A Lender in respect of Credit A be in accordance
with
its Applicable Percentage of the entire amount of Credit
A. Accordingly, upon the Obligations becoming due and payable under
Section 11.2, each Credit A Lender shall (and hereby absolutely, unconditionally
and irrevocably agrees to) do all such things, including assignments to other
Credit A Lenders of Advances made by BNS under Credit A2 or assignments to
BNS
of Advances made by other Credit A Lenders under Credit A1 and Credit A3 as
shall be required to ensure that result. Any such action on the part
of the Credit A Lenders shall be binding on the Borrowers.
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45
-
If
there is more than one Credit B
Lender, then notwithstanding that Advances under Credit B2 are for the time
being made by Nordea and its participation in Advances under Credit B1 is
reduced, and the participation of the other Credit B Lenders is increased,
in
accordance with Section 8.2, it is the intention of the parties that the
ultimate credit risk and exposure of any Credit B Lender in respect of Credit
B
be in accordance with its Applicable Percentage of the entire amount of Credit
B. Accordingly, upon the Obligations becoming due and payable under
Section 11.2, each Credit B Lender shall (and hereby absolutely, unconditionally
and irrevocably agrees to) do all such things, including assignments to other
Credit B Lenders of Advances made by Nordea under Credit B2 or assignments
to
Nordea of Advances made by other Credit B Lenders under Credit B1 as shall
be
required to ensure that result. Any such action on the part of the
Credit B Lenders shall be binding on the European Borrowers.
If
any Lender fails to take the actions
required under this Section, the Agent may, without prejudice to the other
rights of the Lenders, make such adjustments to the payments to the defaulting
Lender under this Agreement as are necessary to compensate the other Lenders
for
the defaulting Lender's failure.
|
8.2
|
Adjustment
of Applicable Percentages for Specific
Credits
|
While
BNS is the sole Lender making
Advances under Credit A2, its participation in Advances and payments (including
standby fees) under Credit A1 and Credit A3 shall be reduced and shall be
adjusted by the Agent from time to time, having regard to the maximum principal
amounts of Credits A1, A2 and A3 and the overall Commitment of BNS to Credit
A,
so that BNS's separate Applicable Percentages of Credits A1, A2 and A3 reflect
its overall Applicable Percentage of Credit A.
While
Nordea is the sole Lender making
Advances under Credit B2, its participation in Advances and payments (including
standby fees) under Credit B1 shall be reduced if there is more than one Credit
B Lender and shall be adjusted by the Agent from time to time, having regard
to
the maximum principal amounts of Credits B1 and B2 and the overall Commitment
of
Nordea to Credit B, so that Nordea's separate Applicable Percentages of Credits
B1 and B2 reflect its overall Applicable Percentage of Credit B.
|
8.3
|
Exceptions
Regarding Particular
Credits
|
Subject
to the provisions of Section
8.1 regarding the assignment of interests under Credit A2 in the event of
acceleration of payment of the Obligations, the provisions of this Agreement
do
not apply to Credit A2 to the extent that the provisions contemplate the
participation in Advances and payments under Credit A2 by any Lender other
than
BNS. All Advances under Credit A2 shall be made solely by BNS and
records concerning Advances shall be maintained solely by BNS. All
payments of principal, interest, fees and other amounts relating to Credit
A2
shall be made solely to BNS. Any notices by the Borrowers in
connection with Credit A2 shall be made to BNS. Notice and minimum
amount requirements for Advances shall not apply to Advances by way of overdraft
under Credit A2. In connection with Advances by way of overdraft, BNS
shall ascertain daily the positions or net positions of accounts of CHC and
the
Overdraft Borrowers in Canadian Dollars, US Dollars and other Approved
Currencies acceptable to BNS and, if the respective positions or net positions
are debits in favour of BNS, the debits will (if the Borrowers are entitled
to
an Advance) be deemed to be Prime Rate Advances (in the case of Canadian
Dollars) or Base Rate Advances (in the case of other Approved Currencies) under
Credit A2 in the respective amounts of the debits. If the respective
positions or net positions are credits in favour of the respective Borrowers,
the credits will be deemed to be repayments of Prime Rate Advances (in the
case
of Canadian Dollars) or Base Rate Advances (in the case of other Approved
Currencies) under Credit A2 in the respective amounts of the
credits.
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46
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Subject
to the provisions of Section
8.1 regarding the assignment of interests under Credit B2 in the event of
acceleration of payment of the Obligations, the provisions of this Agreement
do
not apply to Credit B2 (or to Credit B1 if there is only one Credit B Lender)
to
the extent that the provisions contemplate the participation in Advances and
payments under Credit B2 (or Credit B1 if there is only one Credit B Lender)
by
any Lender other than Nordea. All Advances under Credit B2 (and
Credit B1 if there is only one Credit B Lender) shall be made solely by Nordea
and records concerning Advances shall be maintained solely by
Nordea. All payments of principal, interest, fees and other amounts
relating to Credit B2 (and Credit B1 if there is only one Credit B Lender)
shall
be made solely to Nordea. Any notices by the European Borrowers in
connection with Credit B2 (and Credit B1 if there is only one Credit B Lender)
shall be made to Nordea. Notice and minimum amount requirements for
Advances shall not apply to Advances by way of overdraft under Credit
B2. In connection with Advances by way of overdraft, if any, Nordea
shall ascertain the positions or net positions of the respective European
Borrowers' accounts in the relevant Approved Currencies daily and, if the
positions or net positions are debits in favour of Nordea, the debits will
(if
the European Borrowers are entitled to an Advance) be deemed to be Base Rate
Advances in the respective amounts of the debits. If the positions or
net positions are credits in favour of the respective European Borrowers, the
credits will be deemed to be repayments of Base Rate Advances under Credit
B2 in
the respective amounts of the credits.
Similarly,
references in this Agreement
to the Lenders generally shall, in the context of a particular Credit, be
interpreted as referring only to the Lenders who have Commitments relating
to
that Credit. For example, no Lender other than a Credit C Lender
shall have any right to receive payments in respect of Credit C or any
obligation to make Advances under Credit C.
|
8.4
|
Evidence
of Indebtedness
|
The
Obligations resulting from Prime Rate Advances, Base Rate Advances, and LIBOR
Advances made by the Lenders shall be evidenced by records maintained by the
Agent, and by each Lender concerning those Advances it has made. The
Agent shall also maintain records of the Obligations resulting from Advances
by
way of Bankers' Acceptances and L/Cs, and each Lender shall also maintain
records relating to Bankers' Acceptances that it has accepted and any L/Cs
that
it has issued. The records maintained by the Agent shall constitute,
in the absence of manifest error, prima facie evidence of the
Obligations and all details relating thereto. The failure of the
Agent or any Lender to correctly record any such amount or date shall not,
however, adversely affect the obligation of the Borrowers to pay the Obligations
in accordance with this Agreement.
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47
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|
8.5
|
Conversions
|
Subject
to the other terms of this Agreement, the Borrowers may from time to time
convert all or any part of the outstanding amount of any Advance into another
form of Advance permitted by this Agreement. A conversion does not,
however, constitute a new advance of funds by any Lender, but only an adjustment
of the basis on which interest payable to the Lenders will be
calculated.
|
8.6
|
Notice
of Advances and Payments
|
A
Borrower shall give the Agent irrevocable written notice, in the form attached
as SCHEDULE A to this Agreement, of any request for any Advance to it under
the
Credits. A Borrower shall also give the Agent irrevocable written
notice in the same form of any payment (whether resulting from repayment or
prepayment), rollover or conversion by it of any Advance under the
Credits.
Notice
shall be given on the third Business Day prior to the date of any Advance,
payment, rollover or conversion, except that notice shall be given in respect
of
an Advance by way of L/C at such earlier time as the Issuing Bank may reasonably
require so that it has sufficient time to review the proposed form of L/C,
and
except that notice in respect of a Prime Rate Advance, Base Rate Advance or
payment thereof may be given on the Business Day before any such Advance or
payment. Any permanent reduction of any Credit shall only be
effective on three Business Days' notice as required by Section
8.7.
Notices
shall be given not later than 1:00 p.m. (local time in the relevant office
of the Agent) on the date for notice. Payments must be made prior to
1:00 p.m. (local time in the relevant office of the Agent) on the date for
payment. If a notice or payment is not given or made by those times,
it shall be deemed to have been given or made on the next Business Day, unless
all Lenders affected by the late notice or payment agree, in their sole
discretion, to accept a notice or payment at a later time as being effective
on
the date it is given or made.
|
8.7
|
Prepayments
and Reductions
|
Subject
to giving notice required by Section 8.6, the Borrowers may from time to time
repay Advances outstanding under any Credit without penalty, except that
(i) LIBOR Advances may not be paid prior to the end of the applicable LIBOR
Periods unless the relevant Borrower indemnifies the Lenders for any loss or
expense that the Lenders incur as a result, including any breakage costs, and
(ii) Bankers' Acceptances may not be paid prior to their respective maturity
dates.
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48
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CHC
may from time to time, by giving not less than three Business Days' express
written notice to the Agent and paying all accrued and unpaid standby fees
to
the effective date of cancellation or reduction, irrevocably notify the Agent
of
the cancellation of any Credit or of the permanent reduction of the committed
amount of any Credit by an amount which shall be a minimum of US $1,000,000
and
a whole multiple of US $100,000. The Borrowers shall have no right to
any increase in the committed amount of that Credit thereafter.
|
8.8
|
Prime
Rate, Base Rate and LIBOR
Advances
|
Upon
timely fulfilment of all applicable conditions in this Agreement, the Agent,
in
accordance with the procedures in Section 8.10, will make the requested amount
of a Prime Rate Advance, Base Rate Advance or LIBOR Advance available to the
relevant Borrower on the Drawdown Date requested by the Borrower by crediting
the Designated Account with such amount. Each Prime Rate Advance or
Base Rate Advance shall be in an aggregate minimum amount of $1,000,000 or
US $1,000,000, respectively and in a whole multiple of $100,000 or
US $100,000, respectively, or in similar amounts and multiples for other
Approved Currencies that are established by the Agent. Each LIBOR
Advance shall be in a minimum amount of US $5,000,000 or £5,000,000 and a
whole multiple of US $1,000,000 or £1,000,000, respectively, or in similar
amounts and multiples for other Approved Currencies that are established by
the
Agent. Each Borrower shall pay interest to the Agent for the account
of the Lenders at the Branch of Account on any such Advances outstanding to
it
from time to time hereunder at the applicable rate of interest specified in
Sections 2.5, 3.5, 4.5 and 5.5.
Interest
on Prime Rate Advances and Base Rate Advances shall be payable monthly on each
Interest Payment Date. Interest on LIBOR Advances shall be payable on
the last day of the applicable LIBOR Period and, if the LIBOR Period is longer
than three months, every three months after the date of the relevant
LIBOR Advance. All interest shall accrue from day to day and shall be
payable in arrears for the actual number of days elapsed from and including
the
date of Advance or the previous date on which interest was payable, as the
case
may be, to but excluding the date on which interest is payable, both before
and
after maturity, default and judgment, with interest on overdue interest at
the
same rate payable on demand. Overdue interest with respect to a LIBOR
Advance shall, upon the expiry of the LIBOR Period applicable to such LIBOR
Advance, bear interest, payable on demand, calculated at the rates applicable
to
Base Rate Advances in the relevant Approved Currency.
Interest
calculated with reference to the Prime Rate shall be calculated monthly on
the
basis of a calendar year. Interest on Base Rate Advances shall be
calculated monthly on the basis of a year of 360 days. Interest
calculated with reference to the LIBO Rate shall be calculated on the basis
of a
year of 360 days for a term equal to the applicable LIBOR Period or, if a LIBOR
Period is longer than three months, every
three months. Each rate of interest which is calculated with
reference to a period (the "deemed interest period") that is less than the
actual number of days in the calendar year of calculation is, for the purposes
of the Interest Act (Canada), equivalent to a rate based on a calendar
year calculated by multiplying such rate of interest by the actual number of
days in the calendar year of calculation and dividing by the number of days
in
the deemed interest period.
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49
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|
8.9
|
LIBOR
Periods
|
The
Borrowers may select, by irrevocable notice to the Agent, LIBOR Periods of
one,
two, three or six months to apply to any particular LIBOR
Advance. LIBOR Periods of other lengths shall be permitted if the
relevant Lenders, acting reasonably, determine that deposits for such terms
are
readily available. No LIBOR Period may end on a date which is not a
Business Day, or after the date on which the principal amount of any Credit
is
required to be reduced (in whole or in part) if that would adversely affect
the
Borrowers' ability to cause the reduction of the Credit in
question. The Borrowers shall from time to time select and give
notice to the Agent of the LIBOR Period for a LIBOR Advance which shall commence
upon the making of the LIBOR Advance or at the expiry of any outstanding LIBOR
Period applicable to a LIBOR Advance that is being rolled over. If a
Borrower fails to select and give the Agent notice of a LIBOR Period for a
LIBOR
Advance in accordance with Section 8.6, the LIBOR Advance for which the LIBOR
Period has ended shall be deemed to be converted to a Base Rate Advance in
the
relevant Approved Currency. A rollover of a LIBOR Advance does not
constitute a new advance of funds by the Lenders, but rather an adjustment
of
the basis on which interest is charged.
|
8.10
|
Co-ordination
of Prime Rate, Base Rate and LIBOR
Advances
|
Each
Lender shall advance its Applicable Percentage of each Prime Rate, Base Rate
and
LIBOR Advance under a Credit in accordance with the following
provisions:
|
|
(a)
|
the
Agent shall advise each Lender of its receipt of a notice from a
Borrower
pursuant to Section 8.6 on the day such notice is received and shall,
as
soon as possible, advise each Lender of such Lender's Applicable
Percentage of any Advance requested by the
notice;
|
|
|
(b)
|
each
Lender shall deliver its Applicable Percentage of the Advance to
the Agent
not later than 11:00 a.m. (local time in the relevant office of the
Agent)
on the Drawdown Date;
|
|
|
(c)
|
if
the Agent determines that all the conditions precedent to an Advance
specified in this Agreement have been met, it shall advance to the
relevant Borrower the amount delivered by each Lender by crediting
the
Designated Account prior to 3:00 p.m. (local time in the relevant
office of the Agent) on the Drawdown Date, but if the conditions
precedent
to the Advance are not met by 3:00 p.m. (local time in the relevant
office of the Agent) on the Drawdown Date, the Agent shall return
the
funds to the Lenders or invest them in an overnight investment as
orally
instructed by each Lender until such time as the Advance is made;
and
|
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50
-
|
|
(d)
|
if
the Agent determines that a Lender's Applicable Percentage of an
Advance
would not be a whole multiple of $100,000 or US $100,000 (or a similar
amount in other Approved Currencies that is established by the Agent),
as
the case may be, the amount to be advanced by that Lender may be
increased
or reduced by the Agent in its sole discretion to the extent necessary
to
reflect the requirements of this
sub-clause.
|
|
8.11
|
Execution
of Bankers' Acceptances
|
To
facilitate the acceptance of Bankers' Acceptances hereunder, each Borrower
hereby appoints each Lender as its attorney to sign and endorse on its behalf,
as and when considered necessary by the Lender, an appropriate number of orders
in the form prescribed by that Lender.
Each
Lender may, at its option, execute any order in handwriting or by the facsimile
or mechanical signature of any of its authorized officers, and the Lenders
are
hereby authorized to accept or pay, as the case may be, any order of a Borrower
which purports to bear such a signature notwithstanding that any such individual
has ceased to be an authorized officer of the Lender. Any such order or Bankers'
Acceptance shall be as valid as if he or she were an authorized officer at
the
date of issue of the order or Bankers' Acceptance.
Any
order or Bankers' Acceptance signed by a Lender as attorney for a Borrower,
whether signed in handwriting or by the facsimile or mechanical signature of
an
authorized officer of a Lender may be dealt with by the Agent or any Lender
to
all intents and purposes and shall bind that Borrower as if duly signed and
issued by the Borrower.
The
receipt by the Agent of a request for an Advance by way of Bankers' Acceptances
shall be each Lender's sufficient authority to execute, and each Lender shall,
subject to the terms and conditions of this Agreement, execute orders in
accordance with such request and the advice of the Agent given pursuant to
Section 8.15, and the orders so executed shall thereupon be deemed to have
been
presented for acceptance.
|
8.12
|
Reference
Lenders
|
If
more than three Lenders are banks named on Schedule I of the Bank
Act (Canada), the Agent shall be a Schedule I Reference Lender and
each of the Agent and CHC shall designate a different Lender named on
Schedule I to be a Schedule I Reference Lender for the purpose of
quoting rates to be used in determining the Prime Rate, Base Rate for US
Dollars, LIBOR Rate and BA Discount Rate. If more than two Lenders
are not banks named on Schedule I of the Bank Act (Canada) but
accept Bankers' Acceptances, the Agent and CHC shall each designate a different
such Lender to be an Other Reference Lender for the purpose of quoting rates
to
be used in determining the BA Discount Rate.
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51
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If
any Schedule I Reference Lender or Other Reference Lender ceases to be a
Lender or ceases to accept Bankers' Acceptances, the person that originally
designated that Reference Lender shall have the right to designate in a timely
manner another qualified Lender as a replacement Reference Lender, failing
which
the applicable Prime Rate, Base Rate for US Dollars, LIBOR Rate and BA Discount
Rate hereunder shall be determined on the basis of the rates provided by the
notice from the relevant remaining Reference Lender(s).
If
three or fewer Lenders are banks named on Schedule I of the Bank
Act (Canada), all such Lenders shall be deemed to be the Schedule I
Reference Lenders and any applicable Prime Rate, Base Rate, LIBOR Rate and
BA
Discount Rate hereunder shall be determined on the basis of the discount rate
provided by those Lenders. If two or fewer Lenders are not banks
named on Schedule I of the Bank Act (Canada) but accept Bankers'
Acceptances, all such Lenders shall be deemed to be an Other Reference Lender
and any applicable BA Discount Rate hereunder shall be determined on the basis
of the discount rate provided by those Lenders. If no Lender is
qualified to be a particular Reference Lender, any applicable BA Discount Rate
hereunder shall be determined on the basis of the average rate for bankers'
acceptances of the relevant term that appears on the Reuters Screen CDOR Page
at
10:00 a.m. Toronto time on the Drawdown Date plus 0.10% per annum.
|
8.13
|
Sale
of Bankers' Acceptances
|
It
shall be the responsibility of each Lender to arrange, in accordance with normal
market practice, for the sale on each Drawdown Date of the Bankers' Acceptances
issued by any Borrower and to be accepted by that Lender, failing which the
Lender shall purchase its Bankers' Acceptances.
In
accordance with the procedures in Section 8.15, the Agent will make the net
proceeds of the requested Advance by way of Bankers' Acceptances received by
it
from the Lenders available to the relevant Borrower on the Drawdown Date by
crediting the Designated Account with such amount.
|
8.14
|
Size
and Maturity of Bankers' Acceptances and
Rollovers
|
Each
Advance of Bankers' Acceptances shall be in a minimum amount of $5,000,000
and
each Bankers' Acceptance shall be in the amount of $1,000 or whole multiples
thereof. Each Bankers' Acceptance shall have a term of 30 to 180 days
after the date of acceptance of the order by a Lender, but no Bankers'
Acceptance may mature on a date which is not a Business Day or on a date which
is later than the date on which the principal amount of any Credit is required
to be reduced (in whole or in part) if that would adversely affect the
Borrowers' ability to cause the reduction of the Credit in
question. The face amount at maturity of a Bankers' Acceptance may be
renewed as a Bankers' Acceptance or converted into another form of Advance
permitted by this Agreement.
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52
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|
8.15
|
Co-ordination
of BA Advances
|
Each
Lender shall advance its Applicable Percentage of each Advance under a Credit
by
way of Bankers' Acceptances in accordance with the following
provisions:
|
8.15.1
|
The
Agent, promptly following receipt of a notice from a Borrower pursuant
to
Section 8.6 requesting an Advance by way of Bankers' Acceptances,
shall
advise each Lender of the aggregate face amount and term(s) of the
Bankers' Acceptances to be accepted by it, which term(s) shall be
identical for all Lenders. The aggregate face amount of
Bankers' Acceptances to be accepted by a Lender shall be determined
by the
Agent by reference to the respective Commitments of the Lenders,
except
that, if the face amount of a Bankers' Acceptance would not be Cdn.
$1,000
or a whole multiple thereof, the face amount shall be increased or
reduced
by the Agent in its sole discretion to the nearest whole multiple
of
Cdn. $1,000.
|
|
8.15.2
|
Each
Lender shall transfer to the Agent at the Branch of Account for value
on
each Drawdown Date immediately available Cdn. Dollars in an aggregate
amount equal to the BA Discount Proceeds of all Bankers' Acceptances
accepted and sold or purchased by the Lender on such Drawdown Date
net of
the applicable Bankers' Acceptance Fee and net of the amount required
to
pay any of its previously accepted Bankers' Acceptances that are
maturing
on the Drawdown Date or any of its other Advances that are being
converted
to Bankers' Acceptances on the Drawdown
Date.
|
|
8.15.3
|
If
the Agent determines that all the conditions precedent to an Advance
specified in this Agreement have been met, it shall advance to the
relevant Borrower the amount delivered by each Lender by crediting
the
Designated Account prior to 3:00 p.m. (Toronto time) on the Drawdown
Date, but if the conditions precedent to the Advance are not met
by
3:00 p.m. (Toronto time) on the Drawdown Date, the Agent shall return
the funds to the Lenders or invest them in an overnight investment
as
orally instructed by each Lender until such time as the Advance is
made.
|
|
8.15.4
|
Notwithstanding
any other provision hereof, for the purpose of determining the amount
to
be transferred by a Lender to the Agent for the account of the relevant
Borrower in respect of the sale of any Bankers' Acceptance issued
by that
Borrower and accepted by such Lender, the proceeds of sale thereof
shall
be deemed to be an amount equal to the BA Discount Proceeds calculated
with respect thereto. Accordingly, in respect of any particular
Bankers' Acceptance accepted by it, a Lender in addition to its
entitlement to retain the applicable Bankers' Acceptance Fee for
its own
account (i) shall be entitled to retain for its own account the
amount, if any, by which the actual proceeds of sale thereof exceed
the BA
Discount Proceeds calculated with respect thereto, and (ii) shall be
required to pay out of its own funds the amount, if any, by which
the
actual proceeds of sale thereof are less than the BA Discount Proceeds
calculated with respect thereto.
|
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53
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|
8.15.5
|
Whenever
a Borrower requests an Advance that includes Bankers' Acceptances,
each
Lender that is not permitted by Applicable Law or by customary market
practice to accept a Bankers' Acceptance (a "Non BA Lender") shall,
in
lieu of accepting its pro rata amount of such Bankers'
Acceptances, make available to that Borrower on the Drawdown Date
a loan
(a "BA Equivalent Loan") in Canadian Dollars and in an amount equal
to the
BA Discount Proceeds of the Bankers' Acceptances that the Non BA
Lender
would have been required to accept on the Drawdown Date if it were
able to
accept Bankers' Acceptances. The BA Discount Proceeds shall be
calculated based on the BA Discount Rate provided by the Other
Reference Lenders. Each Non BA Lender shall also be entitled to deduct
from the BA Equivalent Loan an amount equal to the Bankers Acceptance
Fee
that would have been applicable had it been able to accept Bankers'
Acceptances. The BA Equivalent Loan shall have a term equal to
the term of the Bankers' Acceptances that the Non BA Lender would
otherwise have accepted and the relevant Borrower shall, at the end
of
that term, be obligated to pay the Non BA Lender an amount equal
to the aggregate face amount of the Bankers' Acceptances that it
would
otherwise have accepted. All provisions of this Agreement
applicable to Bankers' Acceptances and Lenders that accept Bankers'
Acceptances shall apply mutatis mutandis to BA Equivalent Loans
and Non BA Lenders and, without limiting the foregoing, Advances
shall
include BA Equivalent Loans.
|
|
8.16
|
Payment
of Bankers' Acceptances
|
Each
Borrower shall provide for the payment to the Agent at the Branch of Account
for
the account of the applicable Lenders of the full face amount of each Bankers'
Acceptance accepted for its account on the earlier of (i) the date of maturity
of a Bankers' Acceptance and (ii) the date on which any Obligations become
due
and payable pursuant to Section 11.2. The Lenders shall be entitled
to recover interest from the relevant Borrower at a rate of interest per annum
equal to the rate applicable to Prime Rate Advances under the Credit under
which
the Bankers' Acceptance was issued, compounded monthly, upon any amount payment
of which has not been provided for by that Borrower in accordance with this
Section. Interest shall be calculated from and including the date of
maturity of each Bankers' Acceptance up to but excluding the date such payment,
and all interest thereon, both before and after demand, default and judgment,
is
provided for by the Borrower.
If
a Borrower provides cash in response to any Obligations becoming due and payable
under Section 11.2, it shall be entitled to receive interest on the cash
provided in accordance with Section 13.12 as long as the cash is held as Cash
Collateral.
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54
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|
8.17
|
Deemed
Advance - Bankers'
Acceptances
|
Except
for amounts which are paid from the proceeds of a rollover of a Bankers'
Acceptance or for which payment has otherwise been funded by a Borrower, any
amount which a Lender pays to any third party on or after the date of maturity
of a Bankers' Acceptance in satisfaction thereof or which is owing to the Lender
in respect of such a Bankers' Acceptance on or after the date of maturity of
such a Bankers' Acceptance, shall be deemed to be a Prime Rate Advance to that
Borrower under this Agreement. Each Lender shall forthwith give
notice of the making of such a Prime Rate Advance to the relevant Borrower
and
the Agent (which shall promptly give similar notice to the other
Lenders). Interest shall be payable on such Prime Rate Advances in
accordance with the terms applicable to Prime Rate Advances.
|
8.18
|
Waiver
|
The
Borrowers shall not claim from a Lender any days of grace for the payment at
maturity of any Bankers' Acceptances presented and accepted by the Lender
pursuant to this Agreement. Each Borrower waives any defence to
payment which might otherwise exist if for any reason a Bankers' Acceptance
shall be held by a Lender in its own right at the maturity thereof, and the
doctrine of merger shall not apply to any Bankers' Acceptance that is at any
time held by a Lender in its own right.
|
8.19
|
Degree
of Care
|
Any
executed orders to be used as Bankers' Acceptances shall be held in safekeeping
with the same degree of care as if they were the Lender's own property, and
shall be kept at the place at which such orders are ordinarily held by such
Lender.
|
8.20
|
Obligations
Absolute
|
The
obligations of each Borrower with respect to Bankers' Acceptances under this
Agreement shall be unconditional and irrevocable, and shall be paid strictly
in
accordance with the terms of this Agreement under all circumstances, including
the following circumstances:
|
|
(a)
|
any
lack of validity or enforceability of any order accepted by a Lender
as a
Bankers' Acceptance; or
|
|
|
(b)
|
the
existence of any claim, set-off, defence or other right which a Borrower
may have at any time against the holder of a Bankers' Acceptance,
a Lender
or any other person or entity, whether in connection with this Agreement
or otherwise.
|
|
8.21
|
Shortfall
on Drawdowns, Rollovers and
Conversions
|
Each
Borrower agrees that:
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55
-
|
|
(a)
|
the
difference between the amount of an Advance requested by the Borrower
by
way of Bankers' Acceptances and the actual proceeds of the Bankers'
Acceptances;
|
|
|
(b)
|
the
difference between the actual proceeds of a Bankers' Acceptance and
the
amount required to pay a maturing Bankers' Acceptance, if a Bankers'
Acceptance is being rolled over;
and
|
|
|
(c)
|
the
difference between the actual proceeds of a Bankers' Acceptance and
the
amount required to repay any Advance which is being converted to
a
Bankers' Acceptance;
|
shall
be funded and paid by the Borrower from its own resources, by 11:00 a.m. on
the
day of the Advance or may be advanced as a Prime Rate Advance under a Credit
if
the Borrower is otherwise entitled to an Advance under the Credit.
|
8.22
|
Prohibited
Use of Bankers' Acceptances and
L/Cs
|
No
Borrower shall enter into any agreement or arrangement of any kind with any
person to whom Bankers' Acceptances have been delivered whereby the Borrower
undertakes to replace such Bankers' Acceptances on a continuing basis with
other
Bankers' Acceptances, nor shall any Borrower directly or indirectly take, use
or
provide Bankers' Acceptances or L/Cs as security for loans or advances from
any
other person except as expressly contemplated by this Agreement.
|
8.23
|
Issuance
and Maturity of L/Cs
|
A
request for an Advance by way of L/C shall be made by a Borrower in accordance
with Section 8.6. The Agent shall promptly notify the Lenders of the
receipt of the request, but L/Cs shall only be issued by the Issuing Bank as
fronting bank for all Lenders. A request shall include the details of
the L/C to be issued. The Issuing Bank shall promptly notify the
relevant Borrower of any comment concerning the form of the L/C requested by
the
Borrower and shall, if the Borrower is otherwise entitled to an Advance, issue
the L/C to the Borrower at the branch where its account is maintained on the
Drawdown Date or as soon thereafter as the Issuing Bank is satisfied with the
form of L/C to be issued.
Each
L/C issued under this Agreement shall have a term that is not more than one
year
after its issuance date or renewal date. An L/C may be renewed by the
relevant Borrower subject to complying with the terms of this Agreement
applicable to an Advance by way of L/C. If any L/C is outstanding on
the maturity date of the Credit under which it has been issued, the relevant
Borrower shall immediately provide Cash Collateral equal to the full face amount
of the outstanding L/C for the benefit of the Lenders.
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8.24
|
Payment
of L/C Fees
|
Payment
of L/C fees shall be made to the Agent for the account of the Lenders (other
than the fronting fee under Credits A and B which shall be solely for the
Issuing Bank's account) at the Branch of Account, and shall be made at the
time
of issuance or renewal of an L/C. L/C fees shall be calculated at the
rate specified in Sections 2.5 and 3.5 on the face amount of each L/C for the
duration of its term on the basis of the actual number of days to elapse from
and including the date of issuance or renewal by the Issuing Bank to but not
including the expiry date of the L/C. L/C fees shall be calculated on
the basis of a 365 day year. The relevant Borrower shall be entitled to a
pro rata refund of fees paid in connection with any L/C that is
terminated as a result of payment or otherwise before its expiry
date.
|
8.25
|
Payment
of L/Cs
|
The
Borrower for whose account an L/C was issued shall provide for the payment
to
the Issuing Bank at the branch where the L/C was issued (for the account of
the
Lenders) of the full face amount of each L/C (or the amount actually paid in
the
case of a partial payment to a beneficiary) on the earlier of (i) the date
on
which the Issuing Bank makes a payment to the beneficiary of an L/C, and (ii)
the date on which any Obligations become due and payable pursuant to Section
11.2. The Lenders shall be entitled to recover interest from the
relevant Borrower at a rate of interest per annum equal to the rate applicable
to Prime Rate Advances (in the case of Canadian Dollar L/Cs) and Base Rate
Advances (in the case of L/Cs in other Approved Currencies), compounded monthly,
upon any amount payment of which has not been provided for by the Borrower
in
accordance with this Section. Interest shall be calculated from and
including the date on which the Issuing Bank makes a payment to the beneficiary
of an L/C, up to but excluding the date such payment, and all interest thereon,
both before and after demand, default and judgment, is provided for by the
Borrower.
The
obligation of the relevant Borrower to reimburse the Lenders for a payment
to a
beneficiary of an L/C shall be absolute and unconditional except, as to any
Lender, for matters arising from the Lender's wilful misconduct or gross
negligence, and shall not be reduced by any demand or other request for payment
of an L/C (a "Demand"), which is paid or acted upon in good faith and in
conformity with laws, regulations or customs applicable thereto, being invalid,
insufficient, fraudulent or forged, nor shall the Borrower's obligation be
subject to any defence or be affected by any right of set-off, counter-claim
or
recoupment which the Borrower may now or hereafter have against the beneficiary,
the Lender or any other person for any reason whatsoever, including the fact
that the Issuing Bank paid a Demand or Demands (if applicable) aggregating
up to
the amount of the L/C notwithstanding any contrary instructions from the
Borrower to the Issuing Bank or the occurrence of any event including the
commencement of legal proceedings to prohibit payment by the Issuing Bank of
a
Demand. Any action, inaction or omission taken or suffered by the
Issuing Bank under or in connection with an L/C or any Demand, if in good faith
and in conformity with laws, regulations or customs applicable thereto shall
be
binding on the Borrower and shall not place any Lender under any resulting
liability to the Borrower. Without limiting the generality of the
foregoing, the Issuing Bank may receive, accept, or pay as complying with the
terms of the L/C, any Demand otherwise in order which may be signed by, or
issued to, any administrator, executor, trustee in bankruptcy, receiver or
other
person or entity acting as the representative or in place of, the
beneficiary.
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57
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If
a Borrower provides cash in response to any Obligations becoming due and payable
under Section 11.2, it shall be entitled to receive interest on the cash
provided in accordance with Section 13.12 as long as the cash is held as Cash
Collateral.
|
8.26
|
Deemed
Advance - L/Cs
|
Except
for amounts which have been funded by the relevant Borrower, any amount which
the Issuing Bank pays to any third party in respect of an L/C in satisfaction
or
partial satisfaction hereof shall also be deemed to be a Prime Rate Advance
in
the case of Canadian Dollar L/Cs or a Base Rate Advance in the case of L/Cs
in
other Approved Currencies, in each case under the Credit under which the L/C
was
issued. The Issuing Bank shall forthwith give notice of the making of
such an Advance to the relevant Borrower and the Agent (which shall promptly
give similar notice to the other Lenders). Interest shall be payable
on such Advances in accordance with the terms applicable to such
Advances.
|
8.27
|
Failure
of Lender to Fund
|
Notwithstanding
the provisions of section 6(a) of the Provisions, if any Lender fails to make
available to the Agent its Applicable Percentage of any Advance (such Lender
being herein called the "Defaulting Lender"), the Agent shall forthwith give
notice of such failure by the Defaulting Lender to the relevant Borrower and
the
other Lenders. The Agent shall then forthwith give notice to the
other Lenders that any Lender may make available to the Agent all or any portion
of the Defaulting Lender's Applicable Percentage of such Advance (but in no
way
shall any other Lender or the Agent be obliged to do so) in the place of the
Defaulting Lender. If more than one Lender gives notice that it is
prepared to make funds available in the place of a Defaulting Lender in such
circumstances and the aggregate of the funds which such Lenders (herein
collectively called the "Contributing Lenders" and individually called the
"Contributing Lender") are prepared to make available exceeds the amount of
the
Advance which the Defaulting Lender failed to make, then each Contributing
Lender shall be deemed to have given notice that it is prepared to make
available its Applicable Percentage of such Advance based on the Contributing
Lenders' relative commitments to advance in such circumstances. If
any Contributing Lender makes funds available in the place of a Defaulting
Lender in such circumstances, then the Defaulting Lender shall pay to any
Contributing Lender making the funds available in its place, forthwith on
demand, any amount advanced on its behalf together with interest thereon at
the
rate applicable to such Advance from the date of advance to the date of payment,
against payment by the Contributing Lender making the funds available of all
interest received in respect of the Advance from the relevant
Borrower. The failure of any Lender to make available to the Agent
its Applicable Percentage of any Advance as required herein shall not relieve
any other Lender of its obligations to make available to the Agent its
Applicable Percentage of any Advance as required herein.
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8.28
|
Payments
by the Borrowers
|
All
payments made by or on behalf of the Borrowers pursuant to this Agreement shall
be made to and received by the Agent and shall be distributed by the Agent
to
the Lenders as soon as possible upon receipt by the Agent. Except as
required to make payments in respect of the Other Secured Obligations or as
otherwise provided in this Agreement (including Sections 8.1 and 8.29), the
Agent shall distribute:
|
|
(a)
|
payments
of interest in accordance with each Lender's Applicable Percentage
of the
relevant Credit;
|
|
|
(b)
|
repayments
of principal in accordance with each Lender's Applicable Percentage
of the
relevant Credit; or
|
|
|
(c)
|
all
other payments received by the Agent including amounts received upon
the
realization of Security, in accordance with each Lender's Applicable
Percentage of the relevant Credit provided, however, that with respect
to
proceeds of realization, no Lender shall receive an amount in excess
of
the amounts owing to it in respect of the
Obligations.
|
If
the Agent does not distribute a Lender's share of a payment made by a Borrower
to that Lender for value on the day that payment is made or deemed to have
been
made to the Agent, the Agent shall pay to the Lender on demand an amount equal
to the product of (i) the Interbank Reference Rate per annum multiplied by
(ii)
the Lender's share of the amount received by the Agent from the Borrower and
not
so distributed, multiplied by (iii) a fraction, the numerator of which is the
number of days that have elapsed from and including the date of receipt of
the
payment by the Agent to but excluding the date on which the payment is made
by
the Agent to such Lender and the denominator of which is 365. The
Agent shall be entitled to withhold any Tax applicable to any such payment
as
required by law.
|
8.29
|
Payments
by Agent
|
For
greater certainty, the following provisions shall apply to any and all payments
made by the Agent to the Lenders hereunder:
|
|
(a)
|
the
Agent shall be under no obligation to make any payment (whether in
respect
of principal, interest, fees or otherwise) to any Lender until an
amount
in respect of such payment has been received by the Agent from the
relevant Borrower;
|
|
|
(b)
|
if
the Agent receives less than the full amount of any payment of principal,
interest, fees or other amount owing by a Borrower under this Agreement,
the Agent shall have no obligation to remit to each Lender any amount
other than such Lender's Applicable Percentage of that amount which
is the
amount actually received by the
Agent;
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(c)
|
if
any Lender advances more or less than its Applicable Percentage of
a
Credit, such Lender's entitlement to such payment shall be increased
or
reduced, as the case may be, in proportion to the amount actually
advanced
by such Lender;
|
|
|
(d)
|
if
a Lender's Applicable Percentage of an Advance has been advanced,
or a
Lender's Commitment has been outstanding, for less than the full
period to
which any payment (other than a payment of principal) by a Borrower
relates, such Lender's entitlement to such payment shall be reduced
in
proportion to the length of time such Lender's Applicable Percentage
of
the relevant Credit or such Lender's Commitment, as the case may
be, has
actually been outstanding;
|
|
|
(e)
|
the
Agent acting reasonably and in good faith shall, after consultation
with
the Lenders in the case of any dispute, determine in all cases the
amount
of all payments to which each Lender is entitled and such determination
shall, in the absence of manifest error, be binding and conclusive;
and
|
|
|
(f)
|
upon
request, the Agent shall deliver a statement detailing any of the
payments
to the Lenders referred to herein.
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|
8.30
|
Prohibited
Rates of Interest
|
Notwithstanding
any other provisions of this Agreement or any other Loan Document, the Borrowers
shall not be obliged to make any payment of interest or other amounts payable
to
the Lenders or the Agent under this Agreement or under any other Loan Document
in an amount or at a rate that would be prohibited by law or would result in
the
receipt by the Lenders or the Agent of interest at a criminal rate, as the
terms
"interest" and "criminal rate" are defined under the Criminal Code
(Canada), or that would contravene any local usury laws which may be applicable
to any obligations of the Borrowers to the Lenders or the Agent under or in
connection with this Agreement. In any such case, any payment,
collection or demand for interest in excess of the maximum permitted rate shall
be deemed to have been made by mutual mistake of the relevant Borrower, Agent
and Lenders, any excess payment shall be refunded to that Borrower and the
amount or rate otherwise payable under the terms of any Loan Document shall
be
reduced to the maximum amount or rate payable in accordance with Applicable
Law. For the purposes of this Agreement, the effective annual rate of
interest shall be determined in accordance with generally accepted actuarial
practices and principles and in the event of any dispute, a certificate of
a
Fellow of the Canadian Institute of Actuaries appointed by the Agent shall
be
conclusive for the purpose of such determination.
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ARTICLE
IX
REPRESENTATIONS
AND WARRANTIES
|
9.1
|
Representations
and Warranties
|
Each
Obligor represents and warrants to the Lenders as specified below.
|
9.1.1
|
Corporate
Matters
|
|
|
(a)
|
It
is a duly incorporated and validly existing corporation, is in compliance
with the requirements for carrying on business in all jurisdictions
in
which it carries on business, and has the power and authority, and
all
material Permits required as of the date hereof, to enter into and
perform
its obligations under any Loan Documents to which it is or will be
a
party, to own its Property and to carry on the business in which
it is
engaged.
|
|
|
(b)
|
The
entering into and the performance by it of the Loan Documents to
which it
is or will be a party (i) have been duly authorized by all necessary
corporate action on its part, (ii) do not and will not violate its
Constating Documents, any Applicable Law, any Permit or any Contract
to
which it is a party, and (iii) will not result in the creation of any
Encumbrance on any of its Property, other than the Security, will
not
require it to create any Encumbrance on any of its Property and will
not
result in the forfeiture of any of its
Property.
|
|
|
(c)
|
Its
Constating Documents do not restrict the power of its directors to
borrow
money, to give financial assistance by way of loan, guarantee or
otherwise, or to encumber any or all of its present and future Property
to
secure the Obligations, except for restrictions under any Constating
Document which have been complied with in connection with the Loan
Documents and the Permitted
Obligations.
|
|
|
(d)
|
It
is not in violation of any term of its Constating Documents and is
not in
violation of any Applicable Law, Permit or Contract, the violation
of
which would materially and adversely affect its ability to own its
Property and conduct its business, nor will its execution, delivery
and
performance of any Loan Documents to which it is a party result in
any
such violation.
|
|
9.1.2
|
Loan
Documents
|
|
|
(a)
|
The
Loan Documents to which it is or will be a party have been or will
be duly
executed and delivered by it and constitute legal, valid and binding
obligations enforceable against it in accordance with their respective
terms, subject to the availability of equitable remedies and the
effect of
bankruptcy, insolvency and similar laws affecting the rights of creditors
generally.
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(b)
|
No
Default has occurred and is
continuing.
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|
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(c)
|
From
and after the date on which the relevant Security is delivered and
registered if required, the Lenders will have legal, valid and enforceable
security upon all of its present and future Property which is or
is
intended to be Encumbered thereby (as to which it has, or will when
acquired have, a good and marketable title as owner or lessee), subject
only to Permitted Encumbrances, the availability of equitable remedies,
and the effect of bankruptcy, insolvency and similar laws affecting
the
rights of creditors generally.
|
|
9.1.3
|
Litigation,
Financial Statements Etc.
|
|
|
(a)
|
As
of 22 December 2004, there are no litigation, arbitration or
administrative proceedings or industrial or labour disputes outstanding
and, to its knowledge after having made reasonable inquiry, there
are no
proceedings or disputes pending or threatened against it which, in
either
case, could materially and adversely affect its ability to perform
its
obligations under the Loan
Documents.
|
|
|
(b)
|
All
of the historical financial statements which have been furnished
to the
Lenders, or any of them, in connection with this Agreement are complete
and, to its knowledge after reasonable inquiry, fairly present its
financial position as of the dates referred to therein and have been
prepared in accordance with GAAP except, in the case of quarterly
financial statements, notes to the statements and audit adjustments
required by GAAP are not included.
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(c)
|
As
of 22 December 2004, all projections, including forecasts, budgets,
pro formas and business plans provided to the Lenders, or any of
them, were prepared in good faith based on reasonable assumptions
which
were adequately disclosed in the respective documents and are reasonable
estimates of the prospects of the businesses referred to
therein.
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|
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(d)
|
As
of 22 December 2004, it has no liabilities (contingent or other)
or other
obligations of the type required to be disclosed in accordance with
GAAP
which are not fully disclosed on its audited financial statements
provided
to the Lenders for its fiscal year ended 30 April 2004, or its
interim financial statements for its fiscal period ended 31 October
2004,
other than liabilities and obligations incurred thereafter in the
ordinary
course of its business.
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|
(e)
|
It
is not in default under any of the Permitted
Encumbrances.
|
|
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(f)
|
There
is no fact that it has not disclosed to the Agent and the Lenders
in
writing that materially adversely affects its ability to perform
its
obligations under the Loan Documents to which it is or will be a
party.
|
|
9.1.4
|
Sub
Debt
|
|
|
(a)
|
This
Agreement does not contravene or conflict with the Sub Debt Indenture
and
the incurrence of the Obligations is in compliance with the Sub Debt
Indenture and will not contravene or cause a default under the Sub
Debt
Indenture.
|
|
|
(b)
|
All
Obligations are "Senior Indebtedness" and "Designated Senior Indebtedness"
as defined in the Sub Debt Indenture and are entitled to the benefit
of
all subordination provisions of the Sub Debt
Indenture.
|
|
|
(c)
|
This
Agreement constitutes the "Senior Credit Facility" as defined in
the Sub
Debt Indenture.
|
|
9.1.5
|
Property
and Capital Stock
|
|
|
(a)
|
SCHEDULE
F fully and fairly describes as of 22 December 2004, the ownership
of all
of its issued and outstanding Capital Stock, the Capital Stock in
Obligors
and other persons that it owns, the nature of the business that it
carries
on, the location of its head office (and chief executive office,
if
different), and the jurisdictions in which its Property is
located.
|
|
|
(b)
|
As
of 31 October 2004, the Aircraft in which it has any interest (including
leased Aircraft) are located in the respective jurisdictions specified
on
SCHEDULE I.
|
|
|
(c)
|
The
Pledged Shares are validly issued as fully paid and non-assessable
Capital
Stock of the respective Obligors.
|
|
|
(d)
|
The
consents of the shareholders or directors of the respective Obligors
that
will be delivered at or prior to the time that the Pledged Shares
become
part of the Security are the only consents that are necessary or
desirable
in connection with the pledges of the Pledged Shares as part of the
Security (including the enforcement of the pledges), except for consents
of regulatory authorities that may be required in connection with
transfers of Pledged Shares issued by Obligors that directly or indirectly
hold Permits for operation of aircraft. The consents of the
shareholders or directors will be kept in full force and effect as
long as
they remain necessary or desirable.
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63
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|
|
(e)
|
It
owns or is licensed or otherwise has the right to use all Intellectual
Property that is necessary for the operation of its business, without
conflict with the rights of any other person. The only
Intellectual Property in which it owns an interest registered in
a public
office is trademarks for names and logos under which it carries on
business.
|
|
9.1.6
|
Environmental
Matters
|
|
|
(a)
|
To
its knowledge having made all due inquiry, (i) there are no active or
abandoned underground storage tanks located on any land which it
occupies
or controls, except those that comply with Applicable Law, (ii) there
are no Hazardous Materials located on, above or below the surface
of any
land which it occupies or controls (except those being stored in
compliance with Applicable Law) or contained in the soil or water
constituting such land, (iii) no release, spill, leak, emission,
discharge, leaching, dumping or disposal of Hazardous Materials has
occurred on or from such land to an extent that requires reporting
under
Applicable Law or might otherwise be material, and (iv) no land that
it occupies or controls has been used as a landfill or waste disposal
site.
|
|
|
(b)
|
Its
business and Property have been and are being owned, occupied and
operated
in substantial compliance with Applicable Law intended to protect
the
environment (including laws respecting the disposal or emission of
Hazardous Materials), to the best of its knowledge after reasonable
inquiry there are no breaches thereof and no enforcement actions
in
respect thereof are threatened or pending which, in any such case,
could
materially and adversely affect its ability to perform its obligations
under the Loan Documents to which it is or will be a
party.
|
|
9.1.7
|
Taxes
and Withholdings
|
|
|
(a)
|
It
has (i) duly filed on a timely basis all material tax returns, elections
and reports required to be filed by it and has paid, collected and
remitted all material Taxes due and payable, collectible or remittable
by
it, and (ii) made adequate provision for material Taxes payable by
it for
the current period and any previous period for which tax returns
are not
yet required to be filed and, except as disclosed in writing to the
Agent
from time to time, there are no actions, proceedings or claims pending
or,
to its knowledge, threatened, against it in respect of material Taxes
(it
being agreed that, for purposes of this clause, the amount of a Tax
is
material if it equals or exceeds Cdn. $3,000,000 or the equivalent
thereof
in another currency).
|
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64
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|
|
(b)
|
It
has (i) withheld from each payment made to any of its past or present
employees, officers or directors, and to any non-resident of the
country
in which it is resident, the amount of all material Taxes and other
deductions required to be withheld therefrom and has paid the same
to the
proper tax or other receiving officers within the time required under
any
applicable legislation, and (ii) collected and remitted to the
appropriate tax authority when required by law to do so all material
amounts collectible and remittable in respect of goods and services
tax
and similar provincial or state Taxes, and has paid all such material
amounts payable by it on account of sales Taxes including goods and
services and value-added taxes (it being agreed that, for purposes
of this
clause, the amount of a Tax is material if it equals or exceeds Cdn.
$3,000,000 or the equivalent thereof in another
currency).
|
|
9.1.8
|
Pension
Plans
|
|
|
(a)
|
During
the period of twelve consecutive months before the date of the execution
and delivery of this Agreement and before the date of any Advance
hereunder, (i) no steps have been taken to terminate any Pension Plan
(wholly or in part), which could result in an Obligor be required
to make
an additional contribution to the Pension Plan in excess of $3,000,000,
(ii) no contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a lien or charge under any applicable
pension benefits laws of any other jurisdiction, (iii) no condition
exists and no event or transaction has occurred with respect to any
Pension Plan which might result in the incurrence by any Obligor
of any
liability, fine or penalty in excess of $3,000,000, and (iv) except
as disclosed in the financial statements required to be provided
pursuant
to this Agreement or as otherwise disclosed in writing from time
to time
to the Agent, no Obligor has any contingent liability with respect
to any
post-retirement benefit under a Welfare
Plan.
|
|
|
(b)
|
Each
Pension Plan is in compliance in all material respects with all applicable
pension benefits and tax laws, (i) all contributions (including
employee contributions made by authorized payroll deductions or other
withholdings) required to be made to the appropriate funding agency
in
accordance with all Applicable Law and the terms of each Pension
Plan have
been made in accordance with all Applicable Law and the terms of
each
Pension Plan, (ii) all liabilities under each Pension Plan are fully
funded, on a going concern and solvency basis, or any shortfall is
being
funded, in each case in accordance with the terms of the respective
Pension Plans, the requirements of applicable pension benefits laws
and of
applicable regulatory authorities and the most recent actuarial report
filed with respect to the Pension Plan, and (iii) no event has
occurred and no conditions exist with respect to any Pension Plan
that has
resulted or could reasonably be expected to result in any Pension
Plan
having its registration revoked or refused for the purposes of any
applicable pension benefits or tax laws or being placed under the
administration of any relevant pension benefits regulatory authority
or
being required to pay any taxes or penalties under any applicable
pension
benefits or tax laws, except for any exceptions to
clauses (ii) through (iv) above that, individually or in the
aggregate, could not reasonably be expected to have a material adverse
effect on any Obligor.
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65
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|
9.1.9
|
Survival
of Representations and
Warranties
|
Unless
expressly stated to be made as of a specific date, the representations and
warranties made in this Agreement shall survive the execution of this Agreement
and all other Loan Documents, and shall be deemed to be repeated as of the
date
of each Advance (including any deemed Advance) and as of the date of delivery
of
each Reporting Certificate, subject to modifications made by CHC to the Lenders
in writing and accepted by the Required Lenders. The Lenders shall be
deemed to have relied upon such representations and warranties at each such
time
as a condition of making an Advance hereunder or continuing to extend the
Credits hereunder.
ARTICLE
X
COVENANTS
AND CONDITIONS
|
10.1
|
Intercompany
Obligations
|
|
10.1.1
|
Each
Obligor acknowledges that, under the terms of the Security it has
given,
all Intercompany Obligations owing to it are assigned as security
to the
Agent. The assignment as security shall not prevent an Obligor
from receiving payment of Intercompany Obligations unless a Default
has
occurred and is continuing. Notwithstanding the foregoing, the
principal amount of Restricted Intercompany Obligations shall not
be
repaid, converted, forgiven or otherwise reduced or eliminated without
the
prior written consent of the Required
Lenders.
|
|
10.1.2
|
Intercompany
Obligations are assigned to the Agent under the Security, and shall
be
paid free of any set-off, counterclaim, defence or other right that
the
Obligors, or any of them, owing Intercompany Obligations may have
against
Obligors, or any of them, to whom Intercompany Obligations are
owed.
|
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66
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|
10.2
|
Financial
Covenants
|
|
10.2.1
|
CHC
shall at all times maintain a Total Debt Ratio of not greater than
5.00 to
1.
|
|
10.2.2
|
CHC
shall at all times maintain a Senior Debt Ratio of not greater than
2.50
to 1.
|
|
10.2.3
|
CHC
shall at all times maintain an Adjusted Total Debt Ratio of not greater
than 5.50 to 1.
|
|
10.2.4
|
CHC
shall at all times maintain a Fixed Charge Coverage Ratio of not
less than
1.10 to 1.
|
|
10.2.5
|
CHC
shall at all times maintain a Consolidated Tangible Net Worth of
not less
than $430,000,000 plus 50% of CHC's consolidated net
income after taxes for each fiscal quarter beginning with the fiscal
quarter ended 31 July 2004, excluding any fiscal quarter in which
CHC's
consolidated net income after taxes is a
loss.
|
|
10.3
|
Positive
Covenants
|
During
the term of this Agreement, each Obligor shall perform the covenants specified
below.
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10.3.1
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Payment;
Operation of Business
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(a)
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It
shall duly and punctually pay the Obligations, either as Borrower
or in
accordance with any guarantee it has given, at the times and places
and in
the manner required by the terms
thereof.
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(b)
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It
shall operate its business in accordance with sound business practice
and
in compliance in all material respects with all Applicable Law (including
that regarding ownership of persons carrying on the type of business
that
it carries on) and Material Contracts and Material
Permits.
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(c)
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It
shall obtain, as and when required, all Permits and Contracts which
may be
material to permit it to acquire, own, operate and maintain its business
and Property and perform its obligations under the Loan Documents
to which
it is or will be a party, and preserve and maintain those Permits
and
Contracts and all such Permits and Contracts now held by it in good
standing.
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10.3.2
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Inspection
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It
shall at all reasonable times and from time to time upon reasonable advance
notice (unless a Default has occurred and is continuing, in which case notice
shall not be required), permit representatives of the Lenders to inspect any
of
its Property and to examine and take extracts from its financial books, accounts
and records, including accounts and records stored in computer data banks and
computer software systems, and to discuss its financial condition with its
senior officers and (in the presence of such of its representatives as it may
designate) its auditors, the reasonable expense of all of which shall be paid
by
CHC, provided that:
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(a)
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the
Lenders' exercise of their rights under this clause does not unreasonably
interfere with the operations of the
Obligors;
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(b)
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any
representative of a Lender who is not an employee of that Lender
has
executed and delivered an agreement in favour of the Obligors and
the
Lenders to use any information obtained as a result of any inspection
or
examination on behalf of a Lender only for the purposes of this Agreement,
and has established to the reasonable satisfaction of CHC and the
Lenders
that there is no inherent conflict of interest between the business
and
clientele of the Obligors and the business and clientele (other than
the
Lenders) of that representative;
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(c)
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unless
a Default has occurred and is continuing, CHC shall only be required
to
pay the expense of one inspection in any fiscal year of CHC for any
particular Aircraft or premises;
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(d)
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unless
a Default has occurred and is continuing, any inspection shall be
undertaken by qualified representatives of the Lenders (as determined
by
the Agent) who are most closely located to the Aircraft or premises
to be
inspected so as to minimize the expense to
CHC.
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10.3.3
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Insurance
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(a)
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It
shall maintain insurance on all its Property with financially sound
and
reputable insurance companies or associations including all-risk
property
insurance, comprehensive general liability insurance and business
interruption insurance (in respect of business that does not relate
to
operation of Aircraft), in amounts and against risks that are reasonably
required by the Lenders, and shall furnish to the Agent, on written
request, satisfactory evidence of the insurance
carried.
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(b)
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It
shall cause policies of insurance referred to above to contain a
standard
mortgage clause and other customary endorsements for the benefit
of
lenders, all in a form acceptable to the Lenders acting reasonably,
and a
provision that such policies will not be amended in any manner which
is
prejudicial to the Lenders or be cancelled without 30 days' prior
written
notice being given to the Agent by the issuers thereof. It
shall also cause the Agent to be named as an additional insured with
respect to public liability and, subject to Section 10.9, cause all
of the
proceeds of insurance under such policies to be made payable and
to be
paid to the Agent for and on behalf of the Lenders as their interests
may
appear to the extent of the
Obligations.
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(c)
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Whenever
reasonably requested in writing by the Agent, it shall cause certified
copies of the policies of insurance carried pursuant to this
Section to be delivered to the
Agent.
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(d)
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It
shall provide the Agent promptly with such other evidence of the
insurance
as the Lenders may from time to time reasonably
require.
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10.3.4
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Taxes
and Withholdings
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(a)
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It
shall pay all Taxes as they become due and payable unless (i) they
are being contested in good faith by appropriate proceedings and
it has
made arrangements satisfactory to the Required Lenders acting reasonably
in respect of payment of the contested amount or (ii) the amount of
unpaid Taxes cannot be reliably determined and is less than an aggregate
of $100,000 for all such Taxes that are outstanding at any
time.
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(b)
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It
shall withhold from each payment made to any of its past or present
employees, officers or directors, and to any non-resident of the
country
in which it is resident, the amount of all Taxes and other deductions
required to be withheld therefrom and pay the same to the proper
tax or
other receiving officers within the time required under any Applicable
Law.
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(c)
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It
shall collect from all Persons the amount of all Taxes required to
be
collected from them and remit the same to the proper tax or other
receiving officers within the time required under any Applicable
Law.
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10.3.5
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Other
Matters
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(a)
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It
shall provide such evidence of on-going compliance with Applicable
Law
relating to Hazardous Materials as the Required Lenders may reasonably
require from time to time including if so requested by the Required
Lenders, acting reasonably upon reasonable cause, having conducted
one or
more environmental site assessment and/or compliance audits (each
consisting of a non-intrusive phase I audit and recommendations with
respect to the findings described therein and such other audits or
investigations recommended in each such phase I audit, including
an
intrusive phase II audit) and reports thereon by an independent consultant
engaged by the Obligors and acceptable to the Required Lenders, acting
reasonably. It shall also remove, clean up or otherwise remedy
the matters referred to in Section
10.4.2(c).
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(b)
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To
the extent it has any interest in Aircraft, it shall comply with
the
requirements of SCHEDULE L for owned and leased Aircraft, as
applicable.
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(c)
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If
requested by the Agent, it shall diligently pursue consents in respect
of
the Security from landlords of leasehold real property in which any
Obligor carries on business.
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10.4
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Reporting
and Notice Requirements
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During
the term of this Agreement, CHC shall deliver or cause the delivery of the
periodic reports specified below and shall give notices in the circumstances
specified below, or cause notices to be given. All financial
statements and other reports shall be in a form satisfactory to the Lenders
and
all financial statements shall be prepared in accordance with GAAP.
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10.4.1
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Periodic
Reports
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(a)
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CHC
shall, as soon as practicable and in any event within 45 days of
the end
of each of its fiscal quarters, cause to be prepared and delivered
to the
Lenders, a statement of its inventory and an aged listing of its
accounts
receivable, each on a consolidated basis and with such unconsolidated
information in respect of individual Obligors as the Lenders may
specify.
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(b)
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CHC
shall, as soon as practicable and in any event within 45 days of
the end
of each of its fiscal quarters (including the fourth quarter, except
that
60 days shall be allowed for the fourth quarter), cause to be prepared
and
delivered to the Lenders, its interim unaudited consolidated financial
statements as at the end of such quarter and interim unaudited
unconsolidated financial statements of such Obligors as the Lenders
may
specify from time to time as at the end of such quarter, in each
case
including balance sheet, statement of income and retained earnings
and
statement of changes in financial
position.
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(c)
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CHC
shall, as soon as practicable and in any event within 90 days after
the
end of each of its fiscal years, cause its consolidated annual financial
statements to be prepared and delivered to the Lenders including
balance
sheet, statement of income and retained earnings and statement of
changes
in financial position for such fiscal year, which shall be audited
by an
internationally recognized accounting
firm.
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(d)
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CHC
shall, concurrently with the delivery of its quarterly financial
statements, provide the Lenders with a Reporting
Certificate.
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(e)
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CHC
shall, as soon as practicable and in any event not later than 45
days
after the beginning of each of its fiscal years, cause to be prepared
and
delivered to the Lenders, a budget with projections for the current
and
the following four fiscal years. The budget shall cover CHC on
a consolidated basis and other Obligors designated by the Agent on
an
unconsolidated basis and shall include a projected income statement,
a
projected statement of changes in funds, estimates of Capital
Expenditures, the value of Aircraft to be acquired through Leases,
and tax
losses and deferrals, and a list of all Material Contracts expiring
in all
relevant periods, all broken down quarterly for the current fiscal
year
only and annually thereafter, and otherwise in detail acceptable
to the
Agent and the Required Lenders.
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(f)
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CHC
shall, as soon as practicable and in any event not later than 45
days
after the beginning of each of its fiscal years, cause to be prepared
and
delivered to the Lenders, a current appraisal by an independent appraiser
satisfactory to the Agent of all of the Aircraft owned by
Obligors. The appraisal may be a "desk-top" appraisal based on
information provided to the appraiser concerning the specifications
and
hours of service of the Aircraft rather than physical inspection
of the
Aircraft.
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(g)
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CHC
shall promptly provide each of the Lenders with copies of all information
concerning its financial condition and Property that is provided
to the
trustees or noteholders under the Sub Debt Indenture and not otherwise
provided to the Lenders, copies of all notices received from the
trustees
or noteholders under the Sub Debt Indenture, and all other information
reasonably requested by the Lenders from time to time concerning
the
business, financial condition and Property of the Obligors, including
details of operating leases outstanding from time to
time.
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(h)
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CHC
shall, as soon as practicable and in any event within 25 days of
the end
of each month, cause to be prepared and delivered to the Lenders,
an
unconsolidated statement of accounts receivable of each Obligor
incorporated under the laws of the Netherlands which has given a
pledge of
its accounts receivable as part of the Security in the form of "borderel"
attached to the relevant pledge.
|
If
there is any change in a subsequent period from the accounting policies,
practices and calculation methods used by CHC in preparing its financial
statements for its fiscal year ended 30 April 2004, or components thereof,
CHC
shall provide the Lenders with all information that the Lenders require to
ensure that reports provided to the Lenders after any change are comparable
to
previous reports. In addition, all calculations made for the purposes
of this Agreement shall continue to be made based on the accounting policies,
practices and calculation methods that were used in preparing CHC's financial
statements for its fiscal year ended 30 April 2004 if the changed policies,
practices and methods would materially affect the results of those
calculations.
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10.4.2
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Requirements
for Notice
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(a)
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CHC
shall immediately notify the Lenders of any Default, or of any material
default (either by an Obligor or by any other party) under any Material
Contract or Material Permit, or of any event which, with or without
the
giving of notice, lapse of time or any other condition subsequent,
would
be a material default or would otherwise allow the termination of
any
Material Contract or Material Permit or the imposition of any material
sanction on any party to a Material Contract or Material Permit,
and shall
from time to time provide the Lenders with all information reasonably
requested by any of the Lenders concerning the status
thereof.
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(b)
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CHC
shall immediately notify the Lenders on becoming aware of the occurrence
of any litigation, dispute, arbitration, proceeding, labour or industrial
dispute or other circumstance affecting it, the result of which if
determined adversely would have a material and adverse effect on
the
ability of any Obligor to perform its obligations under this Agreement,
or
the Loan Documents to which it is or will be a party, and shall from
time
to time provide the Lenders with all reasonable information requested
by
any of the Lenders concerning the status
thereof.
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(c)
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CHC
shall immediately notify the Agent upon (i) learning of the existence
of Hazardous Materials located on, above or below the surface of
any land
which any Obligor owns, leases, occupies or controls (except those
being
stored, used or otherwise handled in substantial compliance with
Applicable Law), or contained in the soil or water constituting such
land
(in excess of levels prescribed under Applicable Law, guidelines
or
policies of applicable regulatory authorities or which would constitute
an
actual or potential breach of or non-compliance with any Applicable
Law)
and (ii) the occurrence of any reportable release, spill, leak,
emission, discharge, leaching, dumping or disposal of Hazardous Materials
that has occurred on or from such land which, as to either (i) or
(ii),
would materially and adversely affect the ability of any Obligor
to
perform its obligations under the Loan Documents to which it is or
will be
a party, and shall provide the Agent with details (including cost)
of the
work required to remove, clean up or otherwise remedy the matters
referred
to in the notice.
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(d)
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CHC
shall provide notice to the Agent and copies of all relevant documentation
immediately upon becoming aware of (i) the institution of any steps
by any Obligor or any applicable regulatory authority to terminate
any
Pension Plan (wholly or in part) which could result in any Obligor
being
required to make an additional contribution to the Pension Plan in
excess
of $3,000,000, (ii) the failure to make a required contribution to
any Pension Plan if such failure is sufficient to give rise to a
lien or
charge under any applicable pension benefits laws of any other
jurisdiction, (iii) the taking of any action with respect to a
Pension Plan which could reasonably be expected to result in the
requirement that any Obligor furnish a bond or other security to
such
Pension Plan or any applicable regulatory authority, or (iv) the
occurrence of any event with respect to any Pension Plan which could
reasonably be expected to result in the incurrence by any Obligor
of any
material liability, fine or penalty, or any increase in the contingent
liability of any Obligor in excess of $3,000,000 with respect to
any
post-retirement Welfare Plan
benefit.
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10.5
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Ownership
of the Obligors
|
During
the term of this Agreement, there shall not, without the prior written consent
of the Required Lenders (which shall not be unreasonably withheld), be any
change in the ownership or Control of the Obligors other than CHC from that
described on SCHEDULE F, except that ownership or Control may be transferred
in
whole or in part to another Obligor if CHC gives the Agent reasonable advance
notice of the transfer and promptly takes steps that the Agent reasonably
requests to maintain the Security and the other Loan Documents so that the
Lenders' position is not adversely affected. In addition, there shall
be no change in the ownership of CHC that would result in
Xx. X.X. Xxxxxx ceasing to Control CHC, except that his shares may be
transferred within his immediate family upon his death (as long as steps are
immediately taken to preserve all Permits for the operation of Aircraft by
the
Obligors, to the extent those Permits depend upon his citizenship or other
matters personal to him, and no such Permits are adversely affected) or for
succession planning purposes (as long as steps approved by the Required Lenders
are taken before any such transfer to ensure that no such Permits are adversely
affected).
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10.6
|
Negative
Covenants
|
During
the term of this Agreement, the Obligors shall not do any of the things
specified in this Section without the prior written consent of the Required
Lenders, which shall not be unreasonably withheld.
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10.6.1
|
Financial
Transactions and
Encumbrances
|
No
Obligor shall:
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|
(a)
|
create,
incur, assume or permit any debts, liabilities or obligations of
any kind
(including contingent liabilities and Leases) to remain outstanding,
other
than Permitted Obligations;
|
|
|
(b)
|
prepay,
redeem, defease, repurchase or make other payments in respect of
any of
its Debt for borrowed money, other
than:
|
|
|
(i)
|
the
Obligations;
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|
(ii)
|
scheduled
payments of interest under the Sub Debt, which may be made if no
payment
blockage period or other suspension of the rights of the holders
of Sub
Debt to receive payment contemplated in the subordination provisions
of
the Sub Debt Indenture is in effect and no Default has occurred and
is
continuing or would result from payment being
made;
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(iii)
|
payments
in respect of the obligations contemplated in Sections 1.1.114(k),
1.1.114(s), 1.1.114(t), 1.1.114(u), 1.1.114(w), 1.1.115(j) and
1.1.115(n);
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(iv)
|
payments
in respect of Intercompany Loan Obligations that are not prohibited
by
Section 10.1.1;
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(v)
|
payments
in respect of the Discovery Note as permitted by Section
10.7;
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(c)
|
make
loans to any other person, guarantee, endorse or otherwise become
liable
for any debts, liabilities or obligations of any other person, or
give
other financial assistance of any kind to any other person, except
for:
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(i)
|
the
guarantees given as part of the Security or in connection with the
Sub
Debt;
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(ii)
|
loans
and advances resulting in Intercompany Loan
Obligations;
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(iii)
|
guarantees
that are Permitted Obligations or that are in respect of debts,
liabilities and obligations of other Obligors that are Permitted
Obligations;
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(iv)
|
loans
made to lessors in connection with operating leases permitted under
Section 1.1.114(n) to finance the portion of the purchase price of
the
Aircraft by the lessor that is not financed by the lessor (repayment
of
which may be contingent on the value of the Aircraft at the termination
of
the operating lease), provided that the amount of each loan is included
in
the fair market value of the Aircraft that is referred to in Section
10.6.2(d) and that, at any time, the aggregate principal amount of
all
such loans that are outstanding does not exceed 25% of the aggregate
of
the respective fair market values of each Aircraft to which a loan
relates
on the date that the loan in respect of such Aircraft was
made; notwithstanding the other provisions of this Section
10.6, the payments by way of loans that are permitted by this item
may
instead be made as security deposits, advances or investments as
long as
they would satisfy the requirements of this item if made as
loans;
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|
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(v)
|
other
financial assistance in an aggregate amount outstanding for all Obligors
of not more than $10,000,000 or the equivalent amount in other currencies
at any time, calculated based on the principal amount of any loan
or other
money advanced by an Obligor or the principal amount for which an
Obligor
is contingently liable;
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(d)
|
enter
into any Swap except for (i) Swaps secured by the Security as Other
Secured Obligations and (ii) other Swaps that are not entered into
for
speculative purposes that in each case comply with section 1008(b)(viii)
and other relevant provisions of the Sub Debt
Indenture;
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|
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(e)
|
create,
incur or assume or suffer to exist or cause or permit any Encumbrance
upon
or in respect of any of its Property, except for Permitted Encumbrances;
or
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(f)
|
do
or permit anything to adversely affect the ranking or validity of
the
Security except by incurring a Permitted Encumbrance or obtaining
a
release of the Security in accordance with this
Agreement.
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10.6.2
|
Business
and Property
|
No
Obligor shall:
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|
(a)
|
effect
any material change in its business as it exists at 22 December
2004;
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(b)
|
notwithstanding
any other term of this Agreement, undertake the "EU Investor Initiative"
or any other action or actions by which any business conducted by
Obligors
in Primary Operating Jurisdictions would be conducted by a joint
venture
or other Person that is not wholly owned by CHC directly or indirectly
but
in which CHC has a direct or indirect economic interest, if the total
fixed assets or revenue of all such joint ventures or other Persons
in
respect of business conducted in Primary Operating Jurisdictions
would
exceed 10% of the aggregate of the fixed assets or revenue, respectively,
of the Obligors and such joint ventures or other Persons in respect
of
business conducted in Primary Operating
Jurisdictions;
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75
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(c)
|
acquire
any material Property of any person, except
for:
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|
|
(i)
|
acquisitions
of inventory and Parts in the ordinary course of business for the
purpose
of carrying on its business;
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(ii)
|
acquisitions
of Capital Stock of operating companies (or holding companies for
operating companies) and acquisitions of Property in connection with
the
acquisition of an operating business where the aggregate cost of
all such
acquisitions for all Obligors does not exceed $50,000,000 or the
equivalent in other currencies in any fiscal year of
CHC provided that (A) no Default has occurred and is
continuing or would result from the acquisition; (B) CHC provides
the
Agent with reasonable advance notice of the acquisition and provides
a
certificate satisfactory to the Agent with pro forma evidence
that CHC will be in compliance with the covenants in Section 10.2
following completion of the acquisition taking into account all Debt
to be
incurred or assumed, but taking into account any additional EBITDA
or
Property only to the extent agreed to by the Required Lenders; (C)
the
acquisition shall not result in any material change in the Obligors'
business as it exists as of 22 December 2004; (D) if the acquisition
results in the direct or indirect acquisition of Capital Stock, the
Capital Stock represents more than 50% of the voting rights and economic
interests in each issuer of Capital Stock that is directly or indirectly
acquired (including any Capital Stock of the issuer that is already
owned
by an Obligor); and (v) each issuer of Capital Stock that is directly
or
indirectly acquired becomes an Obligor and Section 6.1 is otherwise
complied with;
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(iii)
|
acquisitions
of Aircraft and other Property through Capital Expenditures and Leases
permitted by this Agreement or otherwise consented to by the Required
Lenders;
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(iv)
|
direct
or indirect acquisitions of or investments in Capital Stock where
the
Capital Stock represents 50% or less of the voting rights or economic
interests in the issuer of Capital Stock (including any Capital Stock
of
the issuer that is already owned by an Obligor), provided that the
Obligors' book value of all such Capital Stock acquired or invested
in by
all Obligors after 22 December 2004 and still held at the time of
measurement does not exceed USD 10,000,000 or the equivalent amount
in
other currencies; for greater certainty, the Capital Stock of
Vector Aerospace Corporation (and any other Capital Stock representing
an
interest of 50% or less) that is held by the Obligors on 22 December
2004
need not be included within the USD 10,000,000 amount but, if it
is no
longer held in the future, will not increase the amount available
for
other acquisitions or investments;
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(v)
|
the
acquisition of a minority equity interest in CHC Composites Inc.
by CHII
if CHII is required to accept the equity interest under the terms
of the
sale referred to in Section
10.6.2(f)(vi);
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(d)
|
incur
Capital Expenditures or acquire Aircraft through Leases that do not
constitute Capital Expenditures in excess of an aggregate of
$300,000,000 (including the fair market value of
Aircraft acquired through Leases that do not constitute Capital
Expenditures, but excluding any amount relating to Aircraft already
in
CHC's fleet that are in effect refinanced and deducting the proceeds
of
any Aircraft that are disposed out of CHC's fleet) for CHC on a
consolidated basis in its fiscal year ending 30 April 2005, or (in
CHC's
subsequent fiscal years) in excess of the aggregate of $80,000,000
and any
part of the amount approved for the immediately preceding fiscal
year that
was not used in that fiscal year, or such greater amount as is expressly
approved by the Required Lenders, based on annual budgets submitted
by
CHC;
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(e)
|
have
any Subsidiaries or hold or acquire Capital Stock or other securities
of,
or make investments in, any other person
except:
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|
|
(i)
|
other
Obligors as specified on SCHEDULE
F;
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|
|
(ii)
|
investments
in other corporations as specified on SCHEDULE
F;
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|
(iii)
|
others
as permitted in Sections 10.5 and 10.6.2(c)
above;
|
|
|
(f)
|
permit
any sale, lease or other disposition of the whole or any part of
its
Property, including any disposition as part of which Lease obligations
are
assumed directly or by guarantee by any Obligor, except
for:
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77
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|
|
(i)
|
sales
of inventory in the ordinary course of
business;
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|
|
(ii)
|
dispositions
(including leases) of Aircraft on commercially reasonable terms,
up to
aggregate proceeds of sale of $60,000,000 or the equivalent in other
currencies for all Obligors in any fiscal year of CHC; if an
Aircraft is leased by an Obligor as lessor, the proceeds of sale
for the
purposes of this item shall be deemed to be the fair market value
of the
Aircraft;
|
|
|
(iii)
|
transactions
that involve Aircraft that are purchased and then sold and leased
back (or
leased out and leased in) under operating leases that comply with
Section
1.1.114(n)(iv) within the lesser of 365 days and the time permitted
under
the Sub Debt Indenture (being 270 days at 22 December 2004) after
purchase;
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|
(iv)
|
dispositions
(including leases) of Aircraft and Parts that are permitted by SCHEDULE
L;
|
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(v)
|
dispositions
(including leases) of other Property at fair market value, up to
aggregate
proceeds of sale of $15,000,000 or the equivalent in other currencies
for
all Obligors in any fiscal year of CHC; if Property is leased
by an Obligor as lessor, the proceeds of sale for the purposes of
this
item shall be deemed to be the fair market value of the
Property;
|
|
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(vi)
|
the
sale, on or before 31 December 2005, of all of CHII's shares of CHC
Composites Inc. for $15,800,000, payable $5,800,000 in cash on closing
and
the balance payable in five years pursuant to a secured convertible
debenture under which CHII has the option to convert the balance
into a
minority equity position in CHC Composites Inc. but may also be required
to accept a minority equity interest in CHC Composites Inc. at the
option
of CHC Composites Inc. to satisfy the
balance;
|
|
|
(g)
|
enter
into any transaction of any kind with any affiliate or associate
(as those
terms are defined in the Canada Business Corporations Act as of
22 December 2004), or person of which it is an associate except on
a
commercially reasonable basis as if it were dealing with such person
on an
arm's length basis.
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|
10.6.3
|
Corporate
Matters
|
No
Obligor shall:
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|
(a)
|
consolidate,
amalgamate or merge with any other person, enter into any corporate
reorganization or other transaction intended to effect or otherwise
permit
a change in its existing Constating Documents, liquidate, wind-up
or
dissolve itself, or permit any liquidation, winding-up or dissolution,
except for transactions involving only one or more Obligors if CHC
gives
the Agent reasonable advance notice thereof and promptly takes such
steps
as the Agent reasonably requests to maintain the Security and the
other
Loan Documents so that the Lenders' position is not adversely
affected; notwithstanding the foregoing exception, CHC may not
liquidate, wind-up or dissolve itself, or permit itself to be liquidated,
wound-up or dissolved;
|
|
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(b)
|
change
its name without providing the Agent with reasonable advance notice
thereof and promptly taking other steps, if any, as the Agent reasonably
requests to maintain the Security and the other Loan Documents so
that the
Lenders' position is not adversely
affected;
|
|
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(c)
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permit
its chief executive office to be located out of the respective
jurisdictions specified on SCHEDULE F without providing the Agent
with
reasonable advance notice thereof and promptly taking other steps,
if any,
as the Agent reasonably requests to maintain the Security and the
other
Loan Documents so that the Lenders' position is not adversely
affected;
|
|
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(d)
|
change
its fiscal year end (being 30 April for CHC), except
that any Subsidiary may change its fiscal year end to
30 April;
|
|
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(e)
|
change
its auditors, unless another of Deloitte & Touche, Ernst & Young,
KPMG and PricewaterhouseCoopers is
appointed;
|
|
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(f)
|
be
a party to any amendment, modification, discharge, termination or
waiver
of the terms of any Restricted Intercompany
Obligation;
|
|
|
(g)
|
be
a party to any amendment, modification, discharge, termination or
waiver
to the terms of the Sub Debt or any documents relating to the Sub
Debt,
other than amendments that do not in any way affect the subordination
provisions of the Sub Debt and that are for the sole purpose of curing
any
immaterial ambiguity, defect or inconsistency in other provisions
of the
Sub Debt, or be a party to any amendment of any kind without immediately
providing the Agent with copies of all documents and other information
relating to the amendment;
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|
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(h)
|
give
any notice, make any statement or otherwise claim that a "Payment
Default"
or "Non-Payment Default" (each as defined in the Sub Debt Indenture)
has
been cured or waived or has ceased to exist without the prior written
consent of the Agent acting on the instructions of the Lenders or
Required
Lenders as required by Sections 12.2.2 and
12.2.3.
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10.7
|
Payments
by CHC
|
CHC
shall not make any Restricted Payment, except for:
|
|
(a)
|
Restricted
Payments made when the Total Debt Ratio is less than 3.50 to 1 and
no
Default has occurred or would result from
payment;
|
|
|
(b)
|
Restricted
Payments of not greater than an aggregate of $16,000,000 per annum
that
are made when no Default has occurred or would result from
payment;
|
|
|
(c)
|
Restricted
Payments made when the Total Debt Ratio is greater than or equal
to 3.50
to 1 and no Default has occurred or would result from payment, provided
that the aggregate of all such payments and any payments made pursuant
to
items (a) and (b) immediately above during any fiscal year shall
not
exceed 50% of CHC's net income after tax during the preceding fiscal
year,
based on its audited financial
statements.
|
Before
making any Restricted Payment pursuant to items (a) and (c) immediately above,
CHC shall provide the Agent with reasonable advance notice and a certificate
satisfactory to the Agent demonstrating compliance with the conditions for
making the Restricted Payment that are specified in this Section.
|
10.8
|
Limits
on Certain Obligors
|
Each
Obligor listed on SCHEDULE J shall comply with the limits on its Property,
business activities and other matters described on that Schedule and each
Obligor which owns Capital Stock of any other person listed on SCHEDULE J shall
cause that person to comply with the limits on its Property, business activities
and other matters described on that Schedule.
|
10.9
|
Use
of Insurance Proceeds
|
|
10.9.1
|
Unless
otherwise specified in this Section or Section 5.6, all proceeds
of
insurance required to be maintained by the Obligors under the terms
of
this Agreement shall be paid to the Agent and be applied by it to
repay
the Obligations and permanently reduce the amount of one or more
Credits,
either directly or through repayment of Intercompany Loan
Obligations.
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|
10.9.2
|
Proceeds
of liability insurance shall be paid to the person to whom the affected
Obligor is liable or to reimburse the affected Obligor to the extent
it
has made payment in respect of its insured
liability.
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10.9.3
|
Proceeds
of insurance covering loss of or damage to Property that is the subject
of
a Permitted Encumbrance having priority over the Security may be
paid to
the holder of the Permitted Encumbrance. Other proceeds of
insurance covering loss of or damage to Property and proceeds of
business
interruption insurance may be paid by the insurer directly to the
affected
Obligor unless, if a Default has occurred and is continuing, the
Agent
requires that payment be made to the Agent. Proceeds of
insurance covering loss of or damage to Property that are received
by the
Obligors when no Default has occurred and is continuing shall be
used as
follows:
|
|
|
(a)
|
the
first USD 10,000,000 received by all Obligors in any fiscal year
of CHC
may be used at the Obligors' discretion, subject to the other terms
of
this Agreement;
|
|
|
(b)
|
the
proceeds of any single claim or series of related claims not falling
within item (a) immediately above may be used at the Obligors' discretion,
subject to the other terms of this Agreement, if the proceeds do
not
exceed USD 5,000,000; and
|
|
|
(c)
|
any
proceeds not falling within items (a) or (b) immediately above shall
be
used to permanently repay and cancel the Credits in accordance with
Section 5.6 unless they are reinvested in replacement Property by
the
Obligors within 12 months of the date of receipt
thereof.
|
|
10.10
|
Classification
of Advances for Sub Debt
Indenture
|
In
connection with section 1008(c) of the Sub Debt Indenture, CHC
hereby:
|
|
(a)
|
agrees
that Advances under Credits C and E are classified as being incurred
under
section 1008(b)(i) of the Sub Debt
Indenture;
|
|
|
(b)
|
represents
that, pursuant to section 1008(d) of the Sub Debt Indenture, the
Advances
under Credit C and E as of the date of the initial Advance under
this
Agreement are equivalent to USD 95,895,497.37 and that the conversion
rates applicable to those Advances are, for Credit C, 1 GBP equals
USD
1.51179 (the rate on 5 July 2000) and, for Credit E, 1 EUR equals
USD
1.27691 (the rate on 16 February
2004);
|
|
|
(c)
|
represents
that not more than USD 8,000,000 of Advances under Credits A and
B of the
Existing Credit Agreement that remain outstanding were incurred on
or
before the date of the Sub Debt Indenture and agrees that such Advances
are classified as being incurred under section 1008(b)(i) of the
Sub Debt
Indenture;
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(d)
|
represents
that, as of 22 December 2004, no Indebtedness (as defined in the
Sub Debt
Indenture) other than Advances has been classified as being incurred
under
section 1008(b)(i) of the Sub Debt Indenture and the basket for
Indebtedness of USD 200,000,000 under section 1008(b)(i) has not
been
reduced as contemplated in that
section;
|
|
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(e)
|
classifies
the sum of USD 9,920,000 used from the initial Advance under Credit
A3 to
partially repay the temporary revolving credit established by BNS
in
favour of CHC, and the sums of USD 17,080,000 and USD 13,000,000
that were
outstanding by way of Base Rate Advances and LIBOR Advances, respectively,
under Credit A1 in the Existing Credit Agreement (made after the
date of
the Sub Debt Indenture) and are now forming the remainder of Credit
A3,
and any rollovers and conversions thereof, as being incurred in compliance
with section 1008(a) of the Sub Debt
Indenture;
|
|
|
(f)
|
agrees
that, except for the Advances reclassified in item (e) immediately
above
and any other Advances under Credit A3 (which may only be obtained
upon
CHC complying with Section 2.2), all Advances are classified as being
incurred under section 1008(b)(i) of the Sub Debt Indenture unless
all
amounts permitted to be incurred under that section have been incurred,
and that it shall not classify any other Indebtedness (as defined
in the
Sub Debt Indenture) as being incurred under that section, except
to the
extent that the maximum amount of Advances available under the Credits
is
less than the amount of Indebtedness then permitted to be incurred
under
that section;
|
|
|
(g)
|
agrees
that all other Advances are classified as being incurred under section
1008(b)(xii) of the Sub Debt Indenture, and that it shall not classify
any
other Indebtedness (as defined in the Sub Debt Indenture) as being
incurred under that section if to do so would result in any possibility
of
amounts permitted to be incurred under that section being exceeded
if all
Credits were fully drawn.
|
ARTICLE
XI
DEFAULT
|
11.1
|
Events
of Default
|
Each
of the following events shall constitute an Event of Default under this
Agreement:
|
|
(a)
|
a
Borrower fails to pay any amount of principal or interest (including
any
amount relating to a Bankers' Acceptance or L/C) when due or, to
pay any
other Obligations (apart from principal and interest) within three
days of
when due; or
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|
|
(b)
|
an
Obligor makes any representation or warranty under any of the Loan
Documents which is incorrect or incomplete in any material respect
when
made or deemed to be made, it being agreed that an incorrect
representation that there is no Pending Event of Default shall not
result
in the Obligors being disentitled to any cure period otherwise associated
with the Pending Event of Default;
or
|
|
|
(c)
|
an
Obligor ceases or threatens to cease to carry on its business, or
admits
its inability or fails to pay its debts generally;
or
|
|
|
(d)
|
an
Obligor permits any default under one or more agreements or instruments
relating to its Debt other than the Obligations (including but not
limited
to the Sub Debt or the Discovery Note) or permits any other event
to occur
and to continue after any applicable grace period specified in such
agreements or instruments, if the effect of one or more of such events
is
to accelerate, or to permit (in accordance with any applicable
inter-creditor and subordination arrangements) the acceleration of,
the
date on which Debt in an aggregate amount of US $1,000,000 or more,
or the
equivalent amount in other currencies, becomes due (whether or not
acceleration actually occurs), or an Obligor fails to pay any such
Debt
when due; or
|
|
|
(e)
|
an
Obligor becomes a bankrupt (voluntarily or
involuntarily); or
|
|
|
(f)
|
an
Obligor becomes subject to any proceeding or other action for liquidation,
arrangement, winding up, relief of creditors or the appointment of
a
receiver, trustee or administrator over, or becomes subject to a
judgment
or order which has or might have a material and adverse effect on,
any
material part of its Property, and such proceeding, if instituted
against
the Obligor, or such judgment or order, is not contested diligently,
in
good faith and on a timely basis and dismissed or stayed within 45
days of
its commencement or issuance; or
|
|
|
(g)
|
an
Obligor denies, to any material extent, its obligations under the
Loan
Documents or claims any of the Loan Documents to be invalid or withdrawn
in whole or in part (including any purported termination of any
guarantee); or any of the Loan Documents is invalidated by any act,
regulation or action of a Governmental Authority or is determined
to be
invalid by a court or other judicial entity and such determination
has not
been stayed pending appeal; or
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|
|
(h)
|
a
final judgment, writ of execution, garnishment or attachment or similar
process is issued or levied against any of the Property of an Obligor
and
such judgment, writ, execution, garnishment, attachment or similar
process
is not released, bonded, satisfied, discharged, vacated or stayed
within
10 days after its entry, commencement or levy;
or
|
|
|
(i)
|
an
Encumbrancer takes possession of all or a substantial portion of
the
Property of an Obligor by appointment of a receiver, receiver and
manager,
or otherwise; or
|
|
|
(j)
|
there
is a breach of Section 10.2 and 10.5;
or
|
|
|
(k)
|
there
is a breach of any other provision of any of the Loan Documents and
such
breach is not capable of being corrected or otherwise satisfied or
(if it
is capable of being corrected or otherwise satisfied) is not corrected
or
otherwise satisfied within 30 days after the Agent, for and on behalf
of the Lenders, gives written notice thereof;
or
|
|
|
(l)
|
any
Material Permit expires or is withdrawn, cancelled, terminated, or
modified to the material detriment of an Obligor or its Property
or
business, and is not reinstated or replaced within five days thereafter
without material impairment to its Property or business;
or
|
|
|
(m)
|
a
default by an Obligor or any other party to any Material Contract
occurs,
or any other event occurs under any Material Contract, and continues
without being waived after any applicable grace period specified
in the
Material Contract, if the effect of the default or other event (if
not
waived) is to terminate the Material Contract or if the default or
other
event results in a declaration of non-performance being issued or
similar
step being taken with respect to an
Obligor.
|
|
11.2
|
Acceleration
and Termination of Rights
|
If
any Event of Default occurs, no Lender shall be under any further obligation
to
make Advances or to accept orders as Bankers' Acceptance and the Required
Lenders may instruct the Agent to give notice to the Borrowers
(i) declaring the Lenders' obligations to make Advances to be terminated,
whereupon the same shall forthwith terminate, (ii) declaring the
Obligations or any of them to be forthwith due and payable, whereupon they
shall
become and 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, and/or (iii) demanding that each Borrower deposit forthwith with
the Agent for the Lenders' benefit Cash Collateral equal to the full principal
amount at maturity of all Bankers' Acceptances and L/Cs then outstanding for
its
account.
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84
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Notwithstanding
the preceding clause, if an Obligor becomes a bankrupt (voluntarily or
involuntarily), or institutes any proceeding seeking liquidation, rearrangement,
relief of debtors or creditor or the appointment of a receiver or trustee over
any material part of its Property, then without prejudice to the other rights
of
the Lenders as a result of any such event, without any notice or action of
any
kind by the Agent or the Lenders, and without presentment, demand or protest,
the Lenders' obligation to make Advances shall immediately terminate, the
Obligations shall immediately become due and payable and each Borrower shall
be
obligated to deposit forthwith with the Agent for the Lenders' benefit Cash
Collateral equal to the full principal amount at maturity of all Bankers'
Acceptances and L/Cs then outstanding for its account.
|
11.3
|
Payment
of Bankers' Acceptances and
L/Cs
|
Immediately
upon any Obligations becoming due and payable under Section 11.2, each Borrower
shall, without necessity of further act or evidence, be and become thereby
unconditionally obligated to deposit forthwith with the Agent for the Lenders'
benefit Cash Collateral equal to the full principal amount at maturity of all
Bankers' Acceptances and L/Cs then outstanding for its account and each Borrower
hereby unconditionally promises and agrees to deposit with the Agent immediately
upon such demand Cash Collateral in the amount so demanded. Each
Borrower authorizes the Lenders, or any of them, to debit its accounts with
the
amount required to pay such L/Cs, and to pay such Bankers' Acceptances,
notwithstanding that such Bankers' Acceptances may be held by the Lenders,
or
any of them, in their own right at maturity. Amounts paid to the
Agent pursuant to such a demand in respect of Bankers' Acceptances and L/Cs
shall be applied against, and shall reduce, pro rata among the Lenders,
to the extent of the amounts paid to the Agent in respect of Bankers'
Acceptances and L/Cs, respectively, the obligations of the relevant Borrower
to
pay amounts then or thereafter payable under Bankers' Acceptances and L/Cs,
respectively, at the times amounts become payable thereunder.
A
Borrower shall be entitled to receive interest on cash held as Cash Collateral
in accordance with Section 13.12.
|
11.4
|
Remedies
|
Upon
the occurrence of any event by which any of the Obligations become due and
payable under Section 11.2, the Security shall become immediately enforceable
and the Required Lenders may instruct the Agent to take such action or
proceedings on behalf of the Lenders as the Required Lenders in their sole
discretion deem expedient to enforce the same, all without any additional
notice, presentment, demand, protest or other formality, all of which are hereby
expressly waived by the Obligors.
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85
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|
11.5
|
Saving
|
The
Lenders shall not be under any obligation to the Obligors or any other person
to
realize any collateral or enforce the Security or any part thereof or to allow
any of the collateral to be sold, dealt with or otherwise disposed
of. The Lenders shall not be responsible or liable to the Obligors or
any other person for any loss or damage upon the realization or enforcement
of,
the failure to realize or enforce the collateral or any part thereof or the
failure to allow any of the collateral to be sold, dealt with or otherwise
disposed of or for any act or omission on their respective parts or on the
part
of any director, officer, agent, servant or adviser in connection with any
of
the foregoing, except that a Lender may be responsible or liable for any loss
or
damage arising from the wilful misconduct or gross negligence of that
Lender.
|
11.6
|
Perform
Obligations
|
If
an Event of Default has occurred and is continuing and if any Obligor has failed
to perform any of its covenants or agreements in the Loan Documents, the
Required Lenders, may, but shall be under no obligation to, instruct the Agent
on behalf of the Lenders to perform any such covenants or agreements in any
manner deemed fit by the Required Lenders without thereby waiving any rights
to
enforce the Loan Documents. The reasonable expenses (including any
legal costs) paid by the Agent and/or the Lenders in respect of the foregoing
shall be secured by the Security.
|
11.7
|
Third
Parties
|
No
person dealing with the Lenders or any agent of the Lenders shall be concerned
to inquire whether the Security has become enforceable, or whether the powers
which the Lenders are purporting to exercise have become exercisable, or whether
any Obligations remain outstanding upon the security thereof, or as to the
necessity or expediency of the stipulations and conditions subject to which
any
sale shall be made, or otherwise as to the propriety or regularity of any sale
or other disposition or any other dealing with the collateral charged by such
Security or any part thereof.
|
11.8
|
Power
of Attorney
|
Effective
upon occurrence of an Event of Default, each Obligor hereby irrevocably
constitutes and appoints any Managing Director, Vice-President or more senior
officer of the Agent its due and lawful attorney with full power of substitution
in its name and on its behalf, during the continuance of an Event of Default,
to
enforce any right, title or interest of the Lenders in, to or under the Security
or any part thereof or any obligation to that Obligor or remedy available to
that Obligor. This appointment is effective and irrevocable to the
maximum extent permitted by Applicable Law.
|
11.9
|
Remedies
Cumulative
|
The
rights and remedies of the Lenders under the Loan Documents are cumulative
and
are in addition to and not in substitution for any rights or remedies provided
by law. Any single or partial exercise by the Lenders of any right or
remedy for a default or breach of any term, covenant, condition or agreement
herein contained shall not be deemed to be a waiver of or to alter, affect,
or
prejudice any other right or remedy or other rights or remedies to which the
Lenders may be lawfully entitled for the same default or breach. Any
waiver by the Lenders of the strict observance, performance or compliance with
any term, covenant, condition or agreement herein contained, and any indulgence
granted by the Lenders shall be deemed not to be a waiver of any subsequent
default.
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ARTICLE
XII
ADDITIONAL
AGENCY PROVISIONS
|
12.1
|
Authorization
of Agent
|
Without
limiting section 7.1 of the Provisions, each of the Lenders hereby appoints
the
Agent as security trustee for the purposes of Scottish and other relevant law,
and grants to the Agent a power of attorney, for the purposes of laws applicable
to the Security from time to time, to sign documents comprising the Security
from time to time (as the party accepting the grant of the security), and also
grants to the Agent the right to delegate its authority as attorney to any
other
person, whether or not an officer or employee of the Agent.
|
12.2
|
Administration
of the Credits and Lender
Consents
|
|
12.2.1
|
Unless
otherwise specified herein, the Agent shall perform the following
duties
under this Agreement:
|
|
|
(a)
|
prior
to an Advance, ensure that all conditions precedent have been fulfilled
in
accordance with the terms of this Agreement, subject to section 7.4
of the
Provisions and any other applicable terms of this
Agreement;
|
|
|
(b)
|
take
delivery of each Lender's Applicable Percentage of an Advance and
make all
Advances hereunder in accordance with the procedures in Sections
8.10 and
8.15;
|
|
|
(c)
|
use
reasonable efforts to collect promptly all sums due and payable by
the
Borrowers pursuant to this
Agreement;
|
|
|
(d)
|
make
all payments to the Lenders in accordance with the provisions
hereof;
|
|
|
(e)
|
hold
the Security on behalf of the
Lenders;
|
|
|
(f)
|
hold
all legal documents relating to the Credits, maintain complete and
accurate records showing all Advances made by the Lenders, all remittances
and payments made by the Borrowers to the Agent, all remittances
and
payments made by the Agent to the Lenders and all fees or any other
sums
received by the Agent and, except for accounts, records and documents
relating to the fees payable under the Fee Agreement, allow each
Lender
and their respective advisors to examine such accounts, records and
documents at their own expense, and provide any Lender, upon reasonable
notice, with such copies thereof as such Lender may reasonably require
from time to time at the Lender's
expense;
|
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87
-
|
|
(g)
|
except
as otherwise specifically provided for in this Agreement, promptly
advise
each Lender upon receipt of each notice and deliver to each Lender,
promptly upon receipt, all other written communications furnished
by the
Obligors to the Agent on behalf of the Lenders pursuant to this Agreement,
including copies of financial reports and certificates which are
to be
furnished to the Agent;
|
|
|
(h)
|
forward
to each of the Lenders, upon request and at the expense of the Lender
so
requesting (other than customary record books which shall be provided
at
the expense of the Borrowers), copies of this Agreement, the Security
and
other Loan Documents (other than the Fee Agreement);
and
|
|
|
(i)
|
promptly
forward to each Lender, upon request, an up-to-date loan status
report.
|
|
12.2.2
|
The
Agent may take the following actions only with the prior consent
of the
Required Lenders, unless otherwise specified in this
Agreement:
|
|
|
(a)
|
subject
to Section 12.2.3, exercise any and all rights of approval conferred
upon
the Lenders by this Agreement;
|
|
|
(b)
|
give
written notice to the Obligors in respect of any matter in respect
of
which notice may be required, permitted, necessary or desirable in
accordance with or pursuant to this Agreement, promptly after receiving
the consent of the Required Lenders, except that the Agent may, without
direction from the Lenders, give the relevant Borrower notice of
any
payment that is due or overdue under the terms of this
Agreement;
|
|
|
(c)
|
amend,
modify or waive any of the terms of this Agreement, including waiver
of a
Default, if such action is not otherwise provided for in Section
12.2.3;
|
|
|
(d)
|
declare
an Event of Default or take action to enforce performance of the
Obligations and to realize upon the Security including the appointment
of
a receiver, the exercise of powers of distress, lease or sale given
by the
Security or by law and take foreclosure proceedings and/or pursue
any
other legal remedy necessary;
|
|
|
(e)
|
decide
to accelerate the amounts outstanding under the
Credits;
|
|
|
(f)
|
pay
insurance premiums, taxes and any other sums as may be reasonably
required
to protect the interests of the Lenders;
and
|
|
|
(g)
|
enter
into or amend, modify or waive any term of any Intercreditor
Agreement.
|
-
88
-
|
12.2.3
|
The
Agent may take the following actions only if the prior unanimous
consent
of the Lenders is obtained, unless otherwise specified
herein:
|
|
|
(a)
|
amend,
modify, discharge, terminate or waive any of the terms of the
Security;
|
|
|
(b)
|
amend,
modify, discharge, terminate or waive any of the terms of this Agreement
if such amendment, modification, discharge, termination or waiver
would
increase the amount of any Credit, amend the purpose of any Credit,
reduce
the interest rates and similar charges applicable to any Credit,
reduce
the fees payable with respect to any Credit, extend any scheduled
date for
payment of principal, interest or any other amount relating to any
Credit
or extend the term of any Credit;
|
|
|
(c)
|
amend
the definition of "Required Lenders" or this Section
12.2.3.
|
For
greater certainty, no Lender's Commitment or Applicable Percentage may be
amended without the consent of that Lender. In addition, no
amendment, modification or waiver affecting the rights or obligations of the
Agent or the Issuing Bank may be made without their respective
consent.
|
12.2.4
|
Notwithstanding
Sections 12.2.2 and 12.2.3, the Agent may, without the consent of
the
Lenders, make amendments to the Loan Documents that are for the sole
purpose of curing any immaterial or administrative ambiguity, defect
or
inconsistency, but shall immediately notify the Lenders of any such
action. The Agent may also discharge any Security to the extent
necessary to allow any Obligor to complete any sale or other disposition
of Property or other action (including the transfer of Aircraft from
one
jurisdiction to another or secured financing of particular Property)
that
is made in accordance with this Agreement (including pursuant to
any
consent, waiver or other decision by the Lenders or Required
Lenders).
|
|
12.2.5
|
As
between the Obligors, on the one hand, and the Agent and the Lenders,
on
the other hand:
|
|
|
(a)
|
all
statements, certificates, consents and other documents which the
Agent
purports to deliver on behalf of the Lenders or the Required Lenders
shall
be binding on each of the Lenders, and the Obligors shall not be
required
to ascertain or confirm the authority of the Agent in delivering
such
documents;
|
|
|
(b)
|
all
certificates, statements, notices and other documents which are delivered
by the Obligors to the Agent in accordance with this Agreement shall
be
deemed to have been duly delivered to each of the
Lenders;
|
-
89
-
|
|
(c)
|
all
payments which are delivered by the Borrowers to the Agent in accordance
with this Agreement shall be deemed to have been duly delivered to
each of
the Lenders.
|
|
12.2.6
|
Except
in its own right as a Lender, the Agent shall not be required to
advance
its own funds for any purpose, and in particular, shall not be required
to
pay with its own funds insurance premiums, taxes or public utility
charges
or the cost of repairs or maintenance with respect to the assets
which are
the subject matter of the Security, nor shall it be required to pay
with
its own funds the fees of solicitors, counsel, auditors, experts
or agents
engaged by it as permitted hereby.
|
|
12.3
|
Acknowledgements,
Representations and Covenants of
Lenders
|
|
12.3.1
|
Each
Lender represents and warrants that it has the legal capacity to
enter
into this Agreement pursuant to its charter and any applicable legislation
and has not violated its charter, constating documents or any applicable
legislation by so doing.
|
|
12.3.2
|
Each
of the Lenders acknowledges and confirms that in the event that the
Agent
does not receive payment in accordance with this Agreement, it shall
not
be the obligation of the Agent to maintain the Credits in good standing
nor shall any Lender have recourse to the Agent in respect of any
amounts
owing to such Lender under this
Agreement.
|
|
12.3.3
|
Each
Lender acknowledges and agrees that its obligation to advance its
Applicable Percentage of Advances in accordance with the terms of
this
Agreement is independent and in no way related to the obligation
of any
other Lender hereunder.
|
|
12.3.4
|
Each
Lender hereby acknowledges receipt of a copy of this Agreement and
the
Security (to the extent that the Security has been delivered) and
acknowledges that it is satisfied with the form and content of such
documents.
|
|
12.4
|
Provisions
Operative Between Lenders and Agent
Only
|
Except
for the provisions of Sections 12.2.5, 12.3.1, 12.3.3 and 12.4, the
provisions of this Article relating to the rights and obligations of the Lenders
and the Agent inter se shall be operative as between the Lenders and
the Agent only, and the Obligors shall not have any rights or obligations under
or be entitled to rely for any purpose upon such provisions.
-
90
-
ARTICLE
XIII
MISCELLANEOUS
PROVISIONS
|
13.1
|
Headings
and Table of Contents
|
The
headings of the Articles and Sections and the Table of Contents are inserted
for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
|
13.2
|
Accounting
Terms
|
Each
accounting term used in this Agreement, unless otherwise defined herein, has
the
meaning assigned to it under GAAP.
|
13.3
|
Capitalized
Terms
|
All
capitalized terms used in any of the Loan Documents (other than this Agreement)
that are defined in this Agreement shall have the meaning defined herein unless
otherwise defined in the other document.
|
13.4
|
Severability
|
Any
provision of this Agreement which is or becomes prohibited or unenforceable
in
any relevant jurisdiction shall not invalidate or impair the remaining
provisions hereof which shall be deemed severable from such prohibited or
unenforceable provision and any such prohibition or unenforceability in any
such
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction. Should this Agreement fail to provide for any
relevant matter, the validity, legality or enforceability of this Agreement
shall not thereby be affected.
|
13.5
|
Number
and Gender
|
Unless
the context otherwise requires, words importing the singular number shall
include the plural and vice versa, words importing any gender include all
genders and references to agreements and other contractual instruments shall
be
deemed to include all present or future amendments, supplements, restatements
or
replacements thereof or thereto.
|
13.6
|
Amendment,
Supplement or Waiver
|
No
amendment, supplement or waiver of any provision of the Loan Documents, nor
any
consent to any departure by an Obligor therefrom, shall in any event be
effective unless it is in writing, makes express reference to the provision
affected thereby and is signed by the Agent for and on behalf of the Lenders
or
the Required Lenders, as the case may be, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given. No waiver or act or omission of the Agent, the Lenders,
or any of them, shall extend to or be taken in any manner whatsoever to affect
any subsequent Event of Default or breach by an Obligor of any provision of
the
Loan Documents or the rights resulting therefrom.
-
91
-
|
13.7
|
Governing
Law and Agent for Service
|
The
Province referred to in sections 11(a) and (b) of the Provisions is the Province
of Ontario. The law governing this Agreement shall also govern each
of the Loan Documents, except for those that expressly provide
otherwise.
Each
of the Obligors hereby nominates, constitutes and appoints Messrs. Xxxxxx
Xxxxxxx of Xxxxx 0000, Xxxxx Xxxx Xxxxx, Xxxxx Xxxxx, 000 Xxx Xxxxxx, X.X.
Xxx
00, Xxxxxxx, Xxxxxxx, X0X 0X0 as its agent for service, to act as such and
as
such to xxx and be sued, plead and be impleaded in any court in Ontario, and
generally on its behalf to accept service of process and to receive all notices
and to do all acts and to execute all deeds and other instruments relating
to
proceedings in any court in Ontario. This appointment shall be
irrevocable without the prior consent of the Required Lenders upon the
appointment of a substitute agent acceptable to the Required Lenders acting
reasonably and, until that time, service of process or of papers and notices
relating to proceedings in any court in Ontario upon Messrs. Xxxxxx Xxxxxxx
shall be sufficient service on the Obligors.
|
13.8
|
This
Agreement to Govern
|
In
the event of any conflict between the terms of this Agreement and the terms
of
any other Loan Document (other than the Fee Agreement and any Intercreditor
Agreement, which shall prevail as against this Agreement), the provisions of
this Agreement shall govern to the extent necessary to remove the
conflict.
|
13.9
|
Permitted
Encumbrances
|
The
designation of an Encumbrance as a Permitted Encumbrance is not, and shall
not
be deemed to be, an acknowledgment by the Lenders that the Encumbrance shall
have priority over the Security.
|
13.10
|
Currency
|
All
payments made hereunder shall be made in the currency in respect of which the
obligation requiring such payment arose. Unless the context otherwise
requires, all amounts expressed in this Agreement in terms of money shall refer
to Canadian Dollars.
Except
as otherwise expressly provided in this Agreement, wherever this Agreement
contemplates or requires the calculation of the equivalent in one Approved
Currency of an amount expressed in another Approved Currency, the calculation
shall be made on the basis of the Exchange Rate at the effective date of the
calculation.
|
13.11
|
Liability
of Lenders
|
The
liability of the Lenders in respect of all matters relating to this Agreement
and the other Loan Documents is several and not joint or joint and
several. Without limiting that statement, the obligations of the
Lenders to make Advances is limited to their respective Applicable Percentages
of any Advance that is requested, and, in the aggregate, to their respective
Applicable Percentages of the total amounts of the Credits for which they have
made Commitments.
-
92
-
|
13.12
|
Interest
on Miscellaneous Amounts
|
If
an Obligor fails to pay any amount payable hereunder (other than principal,
interest thereon or interest upon interest which is payable as otherwise
provided in this Agreement) on the due date, that Obligor shall, on demand,
pay
interest on such overdue amount to the Agent from and including such due date up
to but excluding the date of actual payment, both before and after demand,
default or judgment, at a rate of interest per annum equal to the sum of the
Prime Rate plus 3.0% per annum, compounded monthly.
If
a Borrower deposits cash as Cash Collateral pursuant to a requirement under
this
Agreement, the Lender or Lenders holding the cash shall pay the Borrower
interest on the cash while it continues to be held as Cash Collateral at the
rate offered by the relevant Lenders from time to time for deposits in the
relevant currency of comparable size and term. The Lenders shall be
entitled to withhold any Tax applicable to any such payment as required by
law.
|
13.13
|
Currency
Indemnity
|
In
the event of a judgment or order being rendered by any court or tribunal for
the
payment of any amounts owing to the Lenders or any of them under this Agreement
or for the payment of damages in respect of any breach of this Agreement or
under or in respect of a judgment or order of another court or tribunal for
the
payment of such amounts or damages, such judgment or order being expressed
in a
currency ("the Judgment Currency") other than the currency payable hereunder
or
thereunder ("the Agreed Currency"), the party against whom the judgment or
order
is made shall indemnify and hold the Lenders harmless against any deficiency
in
terms of the Agreed Currency in the amounts received by the Lenders arising
or
resulting from any variation as between (i) the Exchange Rate at which the
Agreed Currency is converted into the Judgment Currency for the purposes of
such
judgment or order, and (ii) the Exchange Rate at which each Lender is able
to
purchase the Agreed Currency with the amount of the Judgment Currency actually
received by the Lender on the date of such receipt. The indemnity in
this Section shall constitute a separate and independent obligation from
the other obligations of the Obligors hereunder, shall apply irrespective of
any
indulgence granted by the Lenders, and shall be secured by the
Security.
|
13.14
|
Address
for Notice
|
As
of 22 December 2004, the addresses of CHC and the Lenders contemplated in
section 8(a) of the Provisions are as specified beside their respective
signatures to this Agreement. Notice to the other Obligors shall be
sent in care of CHC.
-
93
-
|
13.15
|
Time
of the Essence
|
Time
shall be of the essence in this Agreement.
|
13.16
|
Further
Assurances
|
The
Obligors shall, at the request of the Agent acting on the instructions of the
Required Lenders, do all such further acts and execute and deliver all such
further documents as may, in the reasonable opinion of the Required Lenders,
be
necessary or desirable in order to fully perform and carry out the purpose
and
intent of the Loan Documents.
|
13.17
|
Term
of Agreement; Survival
|
Except
as otherwise provided herein, this Agreement shall remain in full force and
effect until the payment and performance in full of all of the Obligations
and
the termination of the Credits. The obligations of the Obligors in
sections 3.1, 3.2 and 9 of the Provisions and of the Lenders in section 7.5
of
the Provisions shall continue for the benefit of those to whom the obligations
are owed notwithstanding the termination of this Agreement or the termination
of
any particular person's role as Obligor, Agent or Lender.
|
13.18
|
Payments
on Business Day
|
Whenever
any payment or performance under the Loan Documents would otherwise be due
on a
day other than a Business Day, such payment shall be made on the following
Business Day, unless the following Business Day is in a different calendar
month, in which case the payment shall be made on the preceding Business
Day.
|
13.19
|
Entire
Agreement
|
This
Agreement and the Fee Agreement constitute the entire agreement between the
parties hereto concerning the matters addressed in this Agreement, and cancel
and supersede any prior agreements, undertakings, declarations or
representations, written or verbal, in respect thereof.
|
13.20
|
Date
of Agreement
|
This
Agreement may be referred to as being dated 22 December 2004 or as of 22
December 2004, notwithstanding the actual date of execution
[The
balance of this page has been intentionally left blank]
-
94
-
IN
WITNESS OF WHICH, the parties have executed this Agreement.
|
Address
For Notice
|
|||
|
The
Bank of Nova Scotia
Corporate
Banking, Atlantic
4th
Floor, 0000 Xxxxxx Xxxxxx
Xxxxxxx,
Xxxx Xxxxxx
X0X
0X0
Attention: Managing
Director
Fax
No.: (000)
000-0000
|
THE
BANK OF NOVA SCOTIA
|
||
|
By:
|
|||
|
X.X.
Xxxxxxx
Managing
Director
|
|||
|
By:
|
|||
|
X.
Xxxxxxx
Director
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
95
-
|
Address
For Notice
|
|||
|
National
Bank of Canada
000
Xxxx Xxxxxx Xxxx
Xxxxx
0000, X.X. Xxx 00
Xxxxxxx,
XX X0X 0X0
Attention: Bank
Finance
Fax
No.: 000-000-0000
|
NATIONAL
BANK OF CANADA
|
||
|
By:
|
|||
|
Name:
Title:
|
|||
|
By:
|
|||
|
Name:
Title:
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
96
-
|
Address
For Notice
|
|||
|
Bank
of Montreal
BMO
Xxxxxxx Xxxxx
Suite
1800 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
X.X.
X0X
0X0
Attention: Xxxxx
Xxxx
Vice President
Fax
No.: 000-000-0000
|
BANK
OF MONTREAL
|
||
|
By:
|
|||
|
Name:
Title:
|
|||
|
By:
|
|||
|
Name:
Title:
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
97
-
|
Address
For Notice
|
|||
|
HSBC
Bank Canada
Suite
200 - 000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
X.X.
X0X
0X0
Attention: Xxxx
Xxxxx, Assistant
Vice
President,
Commercial
Financial
Services
Fax
No.: 000-000-0000
|
HSBC
BANK CANADA
|
||
|
By:
|
|||
|
Name:
Title:
|
|||
|
By:
|
|||
|
Name:
Title:
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
98
-
|
Address
For Notice
|
|||
|
Bank
of America, N.A., Canada Branch
Suite
2700
000
Xxxxx Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Xxxxxx
Xxx, Vice
President
Fax
No.: 000-000-0000
|
BANK
OF AMERICA, N.A.
Canada
Branch
|
||
|
By:
|
|
||
|
Xxxxxx
Xxx
Vice
President
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
99
-
|
Address
For Notice
|
|||
|
Société
Générale (Canada)
1501,
Av. XxXxxx College
bureau
1800
Xxxxxxxx,
Xxxxxx
X0X
0X0
Attention: Corporate
& Investment
Banking
Fax
No.: 000 000
0000
|
SOCIETE
GENERALE
(CANADA)
|
||
|
By:
|
|||
|
Xxxxx
Xxxxxxx
Director
Corporate
& Investment
Banking
|
|||
|
By:
|
|||
|
Xxxxxxxx
Xxxxxxxxx
Managing
Director
Deputy
Head Corporate Credit Group
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
000
-
|
Xxxxxxx
Xxx Xxxxxx
|
|||
|
Xxxxxxx
Xxxxx Xxxxxxx Xxxxxx Inc.
Debt
Capital Markets
000
Xxx Xxxxxx
Xxxxx
000
Xxxxxxx
Xxxxxxx X0X 0X0
|
XXXXXXX
XXXXX CAPITAL
CANADA
INC.
|
||
|
By:
|
|||
|
Xxxxxxx
Xxxxx
Vice
President
|
|||
|
copy
to:
Xxxxx
Xxxxxxx
Assistant
Vice President
Xxxxxxx
Xxxxx & Co.
Loan
Portfolio Management Group
4
World Financial Center, Fl. 16
Xxx
Xxxx, XX 00000
Fax
000 000-0000
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
101
-
|
Address
For Notice
|
|||
|
Nordea
Bank Norge ASA
Middelthunsgt.
17,
X.X.
Xxx 0000 Xxxxxxx, XX-0000
Xxxx,
Xxxxxx
Attention: Xxxx
X. Xxxxx
Fax
No.: (x00)
00 00 00 00
|
NORDEA
BANK NORGE ASA
|
||
|
By:
|
|||
|
Name:
Title:
|
|||
|
By:
|
|||
|
Name:
Title:
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
102
-
|
Address
For Notice
|
|||
|
JPMorgan
Chase Bank, N.A., Toronto Branch
000
Xxx Xxxxxx, Xxxxx Bank Plaza
South
Tower, Suite 1800
Xxxxxxx,
Xxxxxxx X0X 0X0
Attention: Credit
Department
Fax
No.: 000-000-0000
|
JPMORGAN
CHASE BANK, N.A.,
Toronto
Branch
|
||
|
By:
|
|||
|
Name:
Title:
|
|||
|
By:
|
|||
|
Name:
Title:
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
103
-
|
Address
For Notice
|
|||
|
The
Bank of Nova Scotia
Corporate
Banking - Loan
Syndications
62nd
Floor
00 Xxxx
Xxxxxx Xxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Managing
Director and Unit
Head
Fax
No.: 000 000
0000
|
THE
BANK OF NOVA SCOTIA
as
agent
|
||
|
By:
|
|||
|
Name:
Title:
|
|||
|
By:
|
|||
|
Name:
Title:
|
|||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
104
-
|
Name:
|
Name:
|
each
signing in his capacity as an authorized officer or director or holder of a
subsisting power of attorney of, or being otherwise authorized to sign on behalf
of, each of the Obligors other than CHC Helicopters (Barbados) Limited, CHC
Leasing (Barbados) Limited and CHC Capital (Barbados) Limited, and not in his
personal capacity.
Address
For Notice
CHC
Helicopter Corporation
0000
Xxxx Xxxxx
Xxxxxxxx,
XX
X0X
0X0
Attention: Chief
Financial Officer
Fax
No. 000-000-0000
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
105
-
|
CHC
HELICOPTERS
(BARBADOS)
LIMITED
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
CHC
LEASING
(BARBADOS)
LIMITED
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
CHC
CAPITAL
(BARBADOS)
LIMITED
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
106
-
|
VINLAND
HOLDING AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:______________________________
Name
Title:
|
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
107
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
ASTEC
HELICOPTER SERVICES AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for second amended and restated credit agreement dated as of 22 December
2004 relating to CHC Helicopter Corporation et al]
-
108
-
SCHEDULE
A
NOTICE
OF ADVANCE, PAYMENT, ROLLOVER OR CONVERSION
[see
reference in Section 8.6]
|
TO:
|
THE
BANK OF NOVA SCOTIA
|
Wholesale
Banking Operations
Loan
Operations
000
Xxxx Xxxxxx Xxxx
0xx
Xxxxx
Xxxxxxx,
Xxxxxxx
X0X
0X0
Attention: Senior
Manager
Fax
No.: 000-000-0000
[Note: notices
regarding Credit B are to be sent to Nordea]
We
refer to the second amended and restated credit agreement dated as of 22
December 2004 between CHC Helicopter Corporation and others as Obligors, The
Bank of Nova Scotia as Agent and the Lenders named therein, as amended,
supplemented, restated or replaced from time to time (the "Credit
Agreement"). All capitalized terms used in this certificate and
defined in the Credit Agreement have the meanings defined in the Credit
Agreement.
Request
for Advance
Notice
is hereby given pursuant to Section 8.6 of the Credit Agreement that the
undersigned hereby irrevocably requests as follows:
|
(A)
|
that
an Advance be made under the following Credit [check
one]:
|
|||
|
Credit
A
|
( )
|
|||
|
Credit
B
|
( )
|
|||
|
Credit
C
|
( )
|
|||
|
Credit
E
|
( )
|
|||
|
(B)
|
the
requested Advance represents the following [check one or
more]:
|
|||
|
increase
in Advances under the Credit
|
( )
|
|||
|
rollover
of existing Advances under the Credit
|
( )
|
|||
|
conversion
of existing Advances to another type of Advance
|
( )
|
|||
|
(C)
|
the
Drawdown Date shall be _________________
|
|||
|
(D)
|
the
Advance shall be in the form of [check one or more and complete
details]:
|
|||
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109
-
|
Prime
Rate
Amount $________________
|
( )
|
|||
|
Bankers'
Acceptances
Face
Amount: ________________
Term: ________________
|
( )
|
|||
|
Base
Rate Advance
Amount:
________________
Currency: ________________
|
( )
|
|||
|
LIBOR
Advance
Currency: ________________
Amount:
________________
End
of LIBOR
Period: ________________
|
( )
|
|||
|
L/C
Nominal
Amount: ________________
Expiry
Date: ________________
[Note: attach
proposed
form or details]
|
( )
|
|
|
|||||
|
(E)
|
the proceeds of the Advance shall be deposited in [specify Designated Account] | ||||
The
undersigned hereby confirms as follows:
|
(a)
|
the
representations and warranties made in Section 9.1 of the Credit
Agreement, other than those expressly stated to be made as of a specific
date, are true on and as of the date hereof with the same effect
as if
such representations and warranties had been made on and as of the
date
hereof;
|
|
(b)
|
no
Default has occurred and is continuing on the date hereof or will
result
from the Advance(s) requested
herein;
|
|
(c)
|
after
reasonable inquiry, the undersigned has no reason to believe that
CHC will
not be in compliance with all covenants contained in Section 10.2
of the
Credit Agreement at the end of CHC's current fiscal quarter and was
not in
compliance with those covenants at the end of its immediately preceding
fiscal quarter if it has not yet delivered its Reporting Certificate
for
that quarter;
|
|
(d)
|
the
undersigned will immediately notify you if it becomes aware of the
occurrence of any event which would mean that the statements in the
immediately preceding clauses (a), (b) and (c) would not be true
if made
on the Drawdown Date;
|
|
(e)
|
all
other conditions precedent set out in Section 7.2 [and Section 7.1 as
applicable] of the Credit Agreement have been
fulfilled. Without limiting the foregoing, in the case of an
Advance under Credit B to a European Borrower, the amount of debt
permitted to be incurred pursuant to clause 1008(b)(i) of the Sub
Debt
Indenture is not less than US$!
|
-
110
-
Notice
of Payment, Rollover or Conversion
Pursuant
to Section 8.6 of the Credit Agreement, the undersigned hereby irrevocably
notifies you of the following:
|
(a)
|
that
a payment, rollover or conversion will be made under the following
Credit
[check one]:
|
|||
|
Credit
A
|
( )
|
|||
|
Credit
B
|
( )
|
|||
|
Credit
C
|
( )
|
|||
|
Credit
E
|
( )
|
|||
|
(b)
|
the
payment, rollover or conversion represents the following [check one or
more]:
|
|||
|
reduction
in Advances under Credit
|
( )
|
|||
|
rollover
of existing Advances as the same
type
of Advance under
Credit
|
( )
|
|||
|
(c)
|
conversion
of existing Advances to another
type
of Advance under
Credit
|
( )
|
||
|
|
the
payment, rollover or conversion date shall be
___________________
|
|||
|
(d)
|
the
Advance to be paid, rolled over or converted shall be in the form
of
[check one or more and complete details]:
|
|||
|
Prime
Rate
Amount $________________
|
( )
|
|||
|
Bankers'
Acceptances
Face
Amount: ________________
Maturity
Date: ________________
|
( )
|
|||
|
Base
Rate Advance
Amount:
________________
Currency: ________________
|
( )
|
|||
|
LIBOR
Advance
Currency: ________________
Amount:
________________
Start
of current LIBOR
Period: ___________________
|
( )
|
|||
-
111
-
DATED
_______________________________________
|
[BORROWER]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
cc.
|
The
Bank of Nova Scotia
|
Corporate
Banking, Atlantic
4th
Floor, 0000 Xxxxxx Xxxxxx
Xxxxxxx,
Xxxx Xxxxxx
X0X
0X0
Attention: Managing
Director
Fax
No.: (000)
000-0000
The
Bank of Nova Scotia
Corporate
Banking, Loan Syndications
00
Xxxx Xxxxxx Xxxx
Xxxxxx
Plaza, 62nd Floor
Toronto,
Ontario
M5W
2X6
Attention: Managing
Director
Fax
No.: (000)
000-0000
-
112
-
SCHEDULE
B
AGREEMENT
OF NEW RESTRICTED SUBSIDIARY
SUPPLEMENT
TO CREDIT AGREEMENT
[see
reference in Section 6.1.2]
THIS
AGREEMENT supplements the second amended and restated credit agreement dated
as
of 22 December 2004 between CHC Helicopter Corporation and others as Obligors,
The Bank of Nova Scotia as Agent and the Lenders named therein, as amended,
supplemented, restated or replaced from time to time (the "Credit
Agreement").
RECITALS
A. Capitalized
terms used and not defined in this Agreement have the meanings defined in the
Credit Agreement.
B. The
Credit Agreement contemplates that further Subsidiaries of CHC shall become
Obligors in certain circumstances.
C. =
(the "New
Subsidiary") is required by the Credit Agreement to become an
Obligor.
D. Security
and other documents required by Section 6.1 of the Credit Agreement have been
delivered by or in respect of the New Subsidiary.
THEREFORE,
for value received, and intending to be legally bound by this Agreement, the
parties agree as follows:
1. The
New Subsidiary hereby acknowledges and agrees to the terms of the Credit
Agreement and agrees to be bound by all obligations of an Obligor under the
Credit Agreement as if it had been an original signatory thereto.
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113
-
2. The
Agent, on behalf of the Lenders, acknowledges that the New Subsidiary shall
be
an Obligor as of the date of this Agreement.
IN
WITNESS OF WHICH, the undersigned have executed this Agreement as of =.
|
THE
BANK OF NOVA SCOTIA
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
[New
Subsidiary]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
-
114
-
SCHEDULE
C
REPORTING
CERTIFICATE
[see
reference in Section 1.1.126]
TO: THE
LENDERS (as defined in the Credit Agreement referred to below)
AND
TO: THE
BANK OF NOVA SCOTIA, as Agent
We
refer to Section 10.4.1(d) of the second amended and restated credit agreement
dated as of 22 December 2004 between CHC Helicopter Corporation and others
as
Obligors, The Bank of Nova Scotia as Agent and the Lenders named therein, as
amended, supplemented, restated or replaced from time to time (the "Credit
Agreement"). All capitalized terms used in this certificate and
defined in the Credit Agreement have the meanings defined in the Credit
Agreement. This Reporting Certificate relates to CHC's fiscal quarter
ended ____________________ (the "Quarter End")
1. CHC
hereby certifies that:
|
|
(a)
|
the
representations and warranties made in Section 9.1 of the Credit
Agreement, other than those expressly stated to be made as of a specific
date, are true on and as of the date hereof with the same effect
as if
such representations and warranties had been made on and as of the
date
hereof;
|
|
|
(b)
|
no
Default has occurred and is continuing on the date hereof [or as the
case may be].
|
2. CHC
hereby certifies that, as of the Quarter End:
|
|
(a)
|
the
Total Debt Ratio was ___________________ to
1;
|
|
|
(b)
|
the
Senior Debt Ratio was ___________________ to
1;
|
|
|
(c)
|
the
Adjusted Total Debt Ratio was ___________________ to
1;
|
|
|
(d)
|
the
Fixed Charge Coverage Ratio was ___________________ to
1;
|
|
|
(e)
|
its
Consolidated Tangible Net Worth was
$__________________;
|
|
|
(f)
|
the
Borrowing Base was
$______________________.
|
3. Appendix
A attached is a report concerning the current location of all Aircraft of the
Obligors. Not more than 10% of the aggregate value of all Aircraft
owned or leased by Obligors in the total fleet of the Obligors is located in
or
operated from a single jurisdiction other than a Primary Operating
Jurisdiction. [Note: a report concerning the specific
location of each Aircraft (e.g. municipality) within a particular jurisdiction
(e.g. province or country) is only required annually, but the jurisdiction
must
be reported quarterly. Identify each Aircraft that is considered
eligible to be included in the Borrowing Base and identify all changes from
the
previous report]
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115
-
4. Appendix
B attached contains a report of the amount of all Restricted Intercompany
Obligations as of the Quarter End.
5. Appendix
C attached contains details of all Other Secured Obligations as of the Quarter
End.
6. Appendix
D attached is an up to date version of SCHEDULE F to the Credit
Agreement. [or There has been no change to the information
contained in the version of SCHEDULE Fto the Credit Agreement dated
=] [Note: a
complete update of SCHEDULE F is only required annually; information on
shareholders of and shareholdings by each Obligor must be updated
quarterly]
7. Appendix
E attached sets out the calculations of the Total Debt Ratio, Senior Debt Ratio,
Adjusted Total Debt Ratio, Fixed Charge Coverage Ratio and Consolidated Tangible
Net Worth referred to above and a calculation of the minimum required
Consolidated Tangible Net Worth as of the Quarter End.
8. Appendix
F attached sets out details of the dispositions of Property, receipts of
insurance proceeds, reinvestments of proceeds and other information required
to
demonstrate compliance with Section 5.6 of the Credit Agreement as of the
Quarter End.
9. Appendix
G attached contains calculations as of the Quarter End of the
Borrowing Base and the aggregate of (a) the principal amount of all Advances
outstanding, (b) the absolute value of the aggregate Market Value of all Swaps
that are Other Secured Obligations and that have a negative Market Value from
the Obligors' perspective after offsetting the Market Value of Swaps with the
same or another Lender that are Other Secured Obligations and that have a
positive Market Value and (c) an amount representing the exposure in respect
of
Other Secured Obligations that are not Swaps, calculated on a basis agreed
to by
the Required Lenders.
10. Appendix
H attached is an up to date organizational chart for CHC. [or
There has been no change to the organizational chart for CHC dated =]
11. Appendix
I attached contains details as of the Quarter End of the outstanding
Indebtedness (as defined in the Sub Debt Indenture) that is classified as being
incurred under section 1008(b)(i) of the Sub Debt Indenture, the outstanding
Indebtedness that is classified as being incurred under section 1008(b)(xii)
of
the Sub Debt Indenture and the outstanding Indebtedness that has been incurred
by Non-Guarantor Restricted Subsidiaries (as defined in the Sub Debt
Indenture).
12. Appendix
J attached contains details as of the Quarter End of the
outstanding letter of credit reimbursement obligations for which the issuers
hold indemnifications of Export Development Corporation, as contemplated in
Section 1.1.115(f) of the Credit Agreement.
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116
-
13. Appendix
K attached contains details as of the Quarter End of the
outstanding Debt that has been incurred pursuant to Sections 1.1.114(u) and
1.1.115(n) of the Credit Agreement, financial assistance given pursuant to
Section 10.6.1(c)(v) of the Credit Agreement, acquisitions made pursuant to
Section 10.6.2(c)(ii) and Section 10.6.2(c)(iv) of the Credit Agreement, the
amount expended for Capital Expenditures and acquisitions of Aircraft as
contemplated in Section 10.6.2(d) of the Credit Agreement and the amount of
dispositions of Property pursuant to Section 10.6.2(f)(v) of the Credit
Agreement.
14. Appendix
L attached contains a calculation as of the Quarter End of the Asset Value
Guarantee Exposure.
DATED
__________________
|
CHC
HELICOPTER CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
-
117
-
SCHEDULE
D
MODEL
CREDIT AGREEMENT PROVISIONS
[see
reference in Section 1.1.123]
The
attached model credit agreement provisions, which have been revised under the
direction of the Canadian Bankers' Association Secondary Loan Market Specialist
Group from provisions prepared by The Loan Syndications and Trading Association,
Inc., form part of this Agreement, except for the footnotes to the model credit
agreement provisions and subject to the following variations:
1. The
term "Borrower," which is used but not defined in the Provisions, shall be
interpreted as referring to "CHC" except as follows:
|
|
(a)
|
all
references to "Borrower" in the definition of "Obligors" and in sections
5
and 14 of the Provisions, the first reference to "Borrower" in section
4
of the Provisions and the last two references to "Borrower" in each
of
sections 10(b) and 10(d) of the Provisions shall be interpreted as
referring to "the Borrowers, or any of
them;"
|
|
|
(b)
|
the
last two references to "Borrower" in section 3.4 of the Provisions,
the
last reference to "Borrower" in section 3.5, and all references to
"Borrower" in section 6 of the Provisions shall be interpreted as
referring to whichever of the Borrowers is relevant to the respective
Advances or payments contemplated by those
references;
|
|
|
(c)
|
all
references to "Borrower" in the definition of "Foreign Lender" and
the
first reference to "Borrower" in section 3.2(e) of the Provisions
shall be
interpreted as referring to each Borrower separately so as to establish
for each Lender whether it is a Foreign Lender as regards each
Borrower.
|
2. The
term "Base Rate Loans," which is used in section 3.5 but not defined in the
Provisions, shall be interpreted as referring to a Base Rate Advance in the
Approved Currency in which the pending LIBO Rate Loan was
requested.
3. The
term "Release," which is used in section 9(b) but not defined in the Provisions,
shall be interpreted as referring to any release, spill, leakage, emission,
deposit, discharge, leaching, migration or disposition. The
term "Environmental Liability," which is used in section 9(b) but not defined
in
the Provisions, shall be interpreted as referring to any remedial action taken
by the Agent or any Lender relating to any Hazardous Materials or any breach
of
any Applicable Law relating to Hazardous Materials.
4. Clause
5(iii)(y) of the Provisions is deleted and replaced with the
following:
"any
reduction arising from an amount owing to an Obligor upon the termination of
any
derivative entered into between the Obligor and such Lender except for a net
amount available after the termination of all derivatives entered into between
the Obligors and such Lender and the setoff of resulting amounts owing by the
Obligors and to the Obligors"
-
118
-
5. References
in the Provisions to participations by Lenders in respect of Letters of Credit
shall be interpreted as referring to the obligations of Lenders to indemnify
the
Issuing Bank in accordance with Section 8.1 of this Agreement.
6. Clause
10(b)(iii) of the Provisions is deleted and replaced with the
following:
"any
assignment of a Commitment relating to a credit under which Letters of Credit
may be issued must be approved by the Issuing Bank in its sole
discretion"
-
119
-
“Administrative
Questionnaire” means an Administrative
Questionnaire in a form supplied by the Administrative
Agent.
“Affiliate”
means,
with respect to a
specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled
by or is under common
Control with the Person
specified.
“Applicable
Law” means (a)
any domestic or foreign statute, law (including common and
civil law), treaty, code, ordinance, rule, regulation, restriction or by-law
(zoning or otherwise); (b) any judgement, order, writ,
injunction, decision, ruling, decree or award; (c) any
regulatory policy, practice, guideline or directive; or (d)
any franchise, licence, qualification, authorization, consent, exemption,
waiver, right, permit or other approval of any Governmental
Authority, binding on or affecting the Person referred to in the context in which
the term is used or
binding on or affecting the property of such Person,
in each case whether or not having the force of
law.
“Applicable
Percentage” means with respect
to any Lender, the percentage of the total Commitments
represented by such Lender’s Commitment. If the
Commitments
have
terminated or expired, the Applicable Percentages shall be
the percentage of the total outstanding Loans and participations in respect
of
Letters of Credit represented by such Lender’s outstanding Loans and
participations in respect of Letters of Credit.
“Approved
Fund” means any Fund that is administered or managed
by (a) a
Lender,
(b)
an Affiliate of a Lender
or (c)
an entity or an Affiliate of an entity that administers or
manages a Lender.
“Assignment
and Assumption”
means an assignment and assumption entered into by a Lender
and an Eligible Assignee and accepted by the Administrative
Agent, in substantially the form of Exhibit A or any
other form approved by the Administrative Agent.
“Change
in Law” means the
occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any
Applicable
Law, (b) any change in any Applicable
Law or in the administration, interpretation or
application thereof by any Governmental
Authority or (c) the making or issuance of any Applicable
Law by any Governmental
Authority.
“Control”
means
the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and
“Controlled” have corresponding meanings.
“Eligible
Assignee” means any Person (other
than a natural person, any Obligor or any Affiliate
of an Obligor), in respect of which any
consent that is required by Section 10(b) has been
obtained.
-
120
-
“Excluded
Taxes” means,
with respect to the Administrative Agent, any Lender, the
Issuing
Bank or any other recipient of any payment to be made
by or on account of any obligation of an Obligor
hereunder, (a) taxes imposed on or
measured by its net income, and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits
taxes or any similar tax imposed by any jurisdiction in which the Lender is
located and (c) in the case of a Foreign
Lender (other than (i) an
assignee
pursuant to a request by the Borrower under Section 3.3(b),
(ii)
an assignee pursuant to an Assignment and Assumption made when an Event of
Default has occurred and is continuing or (iii) any other
assignee to the extent that the Borrower has expressly agreed
that any withholding tax shall be an Indemnified
Tax), any withholding tax that (A) is not imposed or
assessed in respect of a Loan that was made on the premise that an exemption
from such withholding tax would be available where the exemption is subsequently
determined, or alleged by a taxing authority, not to be available and (B) is
required by Applicable Law to be withheld or paid in respect of any amount
payable hereunder or under any Loan Document to such Foreign
Lender
at the time such Foreign Lender
becomes a party
hereto (or designates a new lending office) or is attributable to such Foreign Lender’s
failure or
inability (other than as a result of a Change in Law) to
comply with Section 3.2(e), except to the extent that such
Foreign
Lender
(or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from an Obligor with
respect to such withholding tax pursuant to Section 3.2(a). For greater certainty, for purposes of item
(c)
above, a withholding tax includes any Tax that a Foreign Lender is required
to
pay pursuant to Part XIII of the Income Tax Act (Canada) or any successor
provision thereto.1
“Foreign
Lender” means any Lender that is not organized under the
laws of the jurisdiction in
which the Borrower is resident for tax purposes and that is not otherwise
considered or deemed in respect of any amount payable to it hereunder or under
any Loan Document to be resident for income tax or withholding tax purposes
in
the jurisdiction in which the Borrower is resident for tax
purposes by application of the laws of that jurisdiction. For
purposes of this definition Canada and each Province
and Territory thereof shall be deemed to constitute a
single jurisdiction and the United States of America, each
State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“Fund”
means
any Person
(other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its
business.
“Governmental
Authority”
means the government of Canada or any other nation, or of any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, including any supra-national bodies such
as the European Union or the European
Central Bank and
including a Minister
of the Crown, Superintendent of Financial Institutions
or other comparable
authority or agency.
"Issuing
Bank" means the
Person named elsewhere in this Agreement2
as the issuer of Letters of
Credit on the basis that it is "fronting" for other
Lenders and not on the basis that it is the attorney of other Lenders to sign
Letters of Credit on their behalf, or any successor issuer of Letters
of Credit. For greater certainty,
where the context requires, references to "Lenders" in these
Provisions
include
the Issuing
Bank.
-
121
-
“Loan”
means any extension of credit by a Lender under this Agreement, including by
way
of bankers' acceptance or LIBO Rate Loan, except for any Letter of Credit or
participation in a Letter of Credit.
"Obligors"
means, collectively, the
Borrower and each of the guarantors of the Borrower's obligations that are
identified elsewhere in this Agreement.
“Other
Taxes” means all present or future
stamp or documentary taxes or any other excise or property
taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document
or
from the execution, delivery or enforcement of, or
otherwise
with respect to, this Agreement or any other Loan Document.
“Person”
means
any natural person,
corporation, limited liability company, trust, joint venture, association,
company, partnership, Governmental
Authority
or other entity.
“Related
Parties” means, with respect to
any Person, such Person’s Affiliates
and the directors, officers, employees, agents and
advisors of such Person and of such Person’s Affiliates.
“Taxes”
means
all present or future taxes,
levies, imposts, duties, deductions, withholdings, assessments, fees or other
charges imposed by any Governmental
Authority,
including any interest, additions to tax
or penalties
applicable thereto.
(1) The
definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”,
“includes”
and “including”
shall
be deemed
to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning
and effect as the
word “shall”. Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document herein (including this Agreement) shall be
construed as referring to
such agreement, instrument or other document as from time to time amended,
supplemented, restated or otherwise modified (subject to any restrictions on
such amendments, supplements, restatements or modifications set forth herein), (b) any
reference herein to any Person
shall be construed to include such Person’s successors
and permitted
assigns, (c) the words “herein”, “hereof"
and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) unless
otherwise expressly stated, all references in these
Provisions to Articles, Sections, Exhibits
and Schedules
shall be
construed to refer to Articles and Sections of, and Exhibits
and Schedules
to, these
Provisions, but all such references elsewhere
in this Agreement shall be construed to refer to
this Agreement apart from these Provisions,
(e)
any reference to any law or regulation herein
shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time and (f) the words
“asset”
and “property”
shall
be construed
to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities,
accounts and contract rights.
(2) If
there is any conflict or inconsistency between these Provisions and the other terms of this Agreement,
the other terms of this Agreement shall govern to the extent
necessary to resolve the conflict or inconsistency.
-
122
-
(i)
impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets of,
deposits with or for the account of, or credit extended or participated in
by,
any Lender;
(ii)
subject any Lender to any Tax of
any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation
in a Letter of
Credit or any Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof,
except for Indemnified
Taxes or Other Taxes covered by Section 3.2 and
the
imposition, or any change in the rate, of any Excluded Tax
payable by such Lender; or
(iii)
impose on any Lender or any applicable
interbank market any other condition, cost or expense affecting this Agreement or Loans made
by such Lender or any Letter of Credit or participation
therein;
and
the result of any of the foregoing shall be to increase the cost
to such Lender of making or maintaining any Loan (or
of maintaining its obligation to make any such Loan), or to increase the cost to such Lender
or
the Issuing Bank of participating in, issuing
or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or
to
issue any Letter of Credit), or to reduce the amount of any sum received or
receivable by such Lender or the Issuing
Bank hereunder (whether of principal,
interest or any other amount), then upon request of such Lender the Borrower
will
pay
to such Lender such additional amount or amounts
as will compensate such Lender
for such additional
costs incurred or reduction suffered.
(b)
Capital
Requirements. If any Lender
determines that any Change in Law affecting such Lender
or any lending office of such Lender or
such Lender’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s capital or on the capital of such Lender’s holding
company, if any, as a consequence of this Agreement, the Commitments
of such Lender or the Loans made
by, or the Letters
of Credit issued or participated in by such
Lender, to a level below that which such
Lender
or its holding company could have achieved but for such
Change in Law
(taking into consideration
such Lender’s policies and the policies of its holding
company with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender such additional amount or amounts
as will
compensate such Lender or its holding company for any such
reduction suffered.
(c)
Certificates
for Reimbursement. A certificate of a Lender setting forth the amount or amounts
necessary to compensate
such Lender or its holding company, as the case
may be, as
specified in paragraph (a) or (b) of this Section, including reasonable detail
of the basis of calculation of the amount or amounts, and delivered to the
Borrower shall be conclusive absent manifest
error. The
Borrower shall pay such Lender
the amount
shown as due on any such certificate within 10 days after receipt
thereof.
(d)
Delay
in Requests. Failure or delay on the part of any
Lender to demand compensation pursuant
to this Section shall
not constitute a waiver of such Lender’s right to demand such
compensation, except that the Borrower shall not be required
to compensate a Lender pursuant to this Section for any
increased costs incurred or reductions suffered more than nine months prior
to
the date that such Lender notifies the Borrower
of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s intention
to claim compensation therefore, unless the Change in Law
giving rise to such increased costs or reductions is retroactive, in which
case
the nine-month period referred to above shall be extended to include the period of retroactive effect
thereof.
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(a)
Payments
Subject to Taxes. If
any Obligor, the Administrative Agent, or any Lender
is required by Applicable Law to deduct or
pay any Indemnified
Taxes (including any Other Taxes)
in respect of any
payment by or on account of any obligation of an Obligor hereunder or under
any
other Loan Document, then (i) the sum payable shall be
increased by that Obligor when payable as necessary so that after making or
allowing for all required deductions and payments (including
deductions and payments applicable to additional sums payable under this
Section) the Administrative Agent or Lender,
as the case may be, receives an amount equal to the sum it
would have received had no such deductions or payments been required, (ii) the Obligor shall make any such deductions
required to be made
by it under Applicable Law and (iii) the
Obligor shall timely pay the full amount required to be deducted to the relevant
Governmental
Authority in accordance with
Applicable Law.
(b)
Payment
of Other Taxes by
the Borrower. Without limiting the provisions of paragraph (a) above, the Borrower
shall timely pay any
Other Taxes to the relevant Governmental
Authority in accordance with Applicable Law.
(c)
Indemnification
by the Borrower. The Borrower shall indemnify the Administrative
Agent
and each Lender, within 10 days after demand therefor,
for
the full amount of any Indemnified
Taxes or
Other Taxes (including
Indemnified
Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent or such Lender
and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified
Taxes or Other Taxes were correctly
or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender
(with a copy to the Administrative Agent),
or by the Administrative Agent on its own behalf or
on behalf
of a Lender, shall be conclusive absent manifest
error.
(d)
Evidence
of Payments. As soon as practicable after any
payment of Indemnified
Taxes or Other Taxes by an Obligor to a Governmental
Authority, the Obligor shall deliver to the Administrative Agent the original or a certified
copy of a receipt
issued by such Governmental
Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
(e)
Status
of Lenders. Any Foreign
Lender
that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which
the Borrower is resident for tax purposes, or
any treaty to
which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document
shall,
at the request of the Borrower, deliver to the Borrower
(with a copy to the Administrative
Agent), at the time or times prescribed by Applicable Law or
reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed
documentation prescribed by Applicable Law as will permit
such payments to be made without withholding or at a
reduced rate of withholding. In addition, (a) any Lender, if
requested by the Borrower or the Administrative
Agent, shall deliver such other documentation
prescribed by Applicable Law or reasonably requested by
the
Borrower or the Administrative
Agent as
will enable the Borrower
or the Administrative Agent to determine whether
or not such Lender is subject to withholding or information
reporting
requirements, and (b) any Lender that ceases to be, or to be deemed to be,
resident in Canada for purposes of Part XIII of the Income Tax Act (Canada)
or
any successor provision thereto shall within five days thereof notify the
Borrower and the Administrative Agent in writing.
(f)
Treatment
of Certain Refunds and Tax Reductions. If the
Administrative Agent or a Lender
determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes
as to which it has been
indemnified by the Borrower or with respect to which an
Obligor has paid additional amounts pursuant to this Section or that, because
of
the payment of such Taxes or Other Taxes, it has benefited from a reduction
in
Excluded Taxes otherwise payable by it, it shall pay to the Borrower or Obligor, as applicable, an amount
equal to such refund
or reduction (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower or Obligor under this Section
with respect to the Taxes or Other Taxes
giving rise to such refund or reduction), net of all out-of-pocket expenses of the Administrative
Agent or such Lender, as the case may be, and without
interest (other than any net after-Tax interest paid by the relevant Governmental
Authority with respect to such
refund). The Borrower or Obligor as applicable,
upon the request of the Administrative Agent or such Lender,
agrees to repay the amount paid over to the Borrower or Obligor (plus any penalties,
interest or other charges
imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender
if the Administrative Agent or such Lender
is required to repay such refund or reduction to such Governmental
Authority. This paragraph shall not be
construed to require the Administrative Agent or any Lender
to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person,
to arrange its
affairs in any particular manner or to claim any available refund or
reduction.
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(a)
Designation
of a Different Lending
Office. If any Lender requests compensation under Section
3.1, or requires the Borrower
to pay any
additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.2 , then
such Lender shall use reasonable efforts to designate
a different lending
office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices, branches
or affiliates, if, in
the judgment of such Lender, such designation or assignment
(i) would
eliminate or reduce amounts payable pursuant to
Section 3.1 or 3.2 , as the case may be, in the future
and
(ii) would not subject such Lender
to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Lender. The Borrower
hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b)
Replacement
of Lenders.3 If any Lender
requests compensation under Section 3.1, if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section
3.2, if
any Lender's obligations are suspended pursuant to
Section 3.4 or if any Lender defaults in its obligation to
fund Loans hereunder,
then the Borrower may, at its sole expense and effort,
upon 10 days’ notice
to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in,
and
consents required by, Section 10), all of its interests,
rights and obligations under this Agreement and the related
Loan Documents
to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment),
provided that:
(ii)
the assigning Lender receives payment of an
amount equal to the outstanding principal of its Loans and
participations in disbursements under Letters
of Credit, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder and under the other Loan
Documents (including any breakage costs and amounts
required
to be paid under this Agreement as a result of prepayment to
a Lender) from the assignee (to the extent
of such
outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
(iii)
in the case of any such assignment resulting from a claim for
compensation under Section 3.1 or payments required to be
made pursuant to Section 3.2, such assignment will result
in a reduction in such compensation or payments
thereafter; and
A
Lender
shall not be required to make any such
assignment or delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation
cease to
apply.
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If
any Lender determines that any Applicable Law
has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make or maintain any Loan (or
to maintain its obligation to make any Loan), or to participate in, issue or maintain
any Letter of Credit
(or to maintain its obligation to participate in or to issue any Letter of
Credit), or to determine or charge interest rates based upon any particular
rate, then, on notice thereof by such Lender to the Borrower
through the Administrative Agent, any
obligation of such Lender with respect to the activity that
is unlawful shall be suspended until such Lender notifies the
Administrative
Agent and the Borrower that
the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the
Administrative
Agent), prepay or, if conversion would avoid
the activity that is unlawful, convert any Loans, or take any
necessary steps with respect to any Letter of Credit in order to avoid the
activity that is unlawful. Upon any such prepayment or conversion,
the Borrower shall also pay accrued interest
on the amount so
prepaid or converted. Each Lender agrees to
designate a different Lending Office if such designation
will avoid
the need for such notice and will not, in the good faith judgment of such
Lender,
otherwise be materially disadvantageous to such Lender.
If
the Required Lenders
determine that for any reason a market for bankers' acceptances does not exist
at any time or the Lenders cannot for other reasons, after
reasonable efforts, readily sell bankers' acceptances or perform their other
obligations under this Agreement with respect to bankers'
acceptances, the Administrative Agent will
promptly so notify the Borrower and each Lender. Thereafter,
the Borrower's
right to request the acceptance of bankers' acceptances shall be and remain
suspended until the Required Lenders
determine and the Agent notifies the Borrower
and each Lender that the condition
causing such determination no longer exists. If the Required Lenders
determine that for any reason
adequate and reasonable means do not exist for determining the LIBO Rate for any requested Interest
Period with
respect to a proposed LIBO Rate Loan, or that the LIBO Rate
for any requested Interest Period with
respect to a proposed LIBO Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such
Loan, the
Administrative
Agent will promptly so notify the Borrower
and each
Lender. Thereafter, the obligation of the Lenders
to make or maintain LIBO Rate Loans shall
be suspended until the Administrative Agent (upon the
instruction of the Required Lenders)
revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for
a borrowing, conversion or continuation of
LIBO
Rate Loans or, failing that, will be deemed to have converted
such request into a request for a borrowing of Base Rate
Loans in the amount specified therein.
If
an Event of Default has occurred and is
continuing, each of the Lenders and each of their respective
Affiliates
is hereby authorized at any time and from time to
time to set off and apply any and all deposits (general or special, time or
demand, provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender or any such Affiliate
to or for the credit
or the account of any Obligor against any and all of the
obligations of the Borrower now or hereafter existing under
this Agreement or any other Loan Document
to such Lender, irrespective of whether or not such
Lender
has made any demand under this Agreement
or any other Loan Document and although such obligations
of
the Obligor may be contingent or unmatured or
are owed to a
branch or office of such Lender different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each the Lenders and their respective Affiliates
under this Section are in addition to other rights and
remedies (including other rights of setoff, consolidation
of
accounts and bankers' lien) that the Lenders or their
respective Affiliates may have. Each Lender
agrees to promptly notify the Borrower and
the Administrative Agent after any such setoff
and
application, but the failure to give such notice shall not affect the validity
of such setoff and application. If any Affiliate of a Lender
exercises any rights under this Section 4, it shall share the benefit received
in accordance with Section 5 as if the benefit had been received by the Lender
of which it is an Affiliate.
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If
any Lender, by exercising any right of setoff
or counterclaim or otherwise, obtains any payment or other reduction that might
result in such Lender receiving payment or other reduction
of
a proportion of the aggregate amount of its Loans and accrued
interest thereon or other obligations hereunder greater than its pro rata
share thereof as provided herein, then the Lender
receiving such payment or other reduction shall (a) notify the Administrative
Agent of such fact,
and (b) purchase (for cash at face value) participations
in
the Loans and such other obligations of the other
Lenders,
or make such other adjustments as shall be equitable, so
that the benefit of all such payments shall be shared by the Lenders rateably in accordance with the aggregate
amount of
principal of and accrued interest on their respective Loans
and other amounts owing them, provided that
(i)
the provisions of this Section shall not be construed to apply
to (x) any payment made by any Obligor
pursuant to and in accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment
of or sale of a
participation in any of its Loans or participations in
disbursements under Letters
of Credit to any
assignee or participant, other than to any Obligor or any
Affiliate
of an Obligor (as to which the
provisions of this Section shall apply); and
(ii)
the provisions of this Section shall not be construed to apply
to (w) any payment made while no Event of
Default has occurred and is continuing in respect of obligations of the Borrower to such Lender
that do not arise under
or in connection with the Loan Documents,
(x) any payment made in respect of an obligation
that is
secured by a Permitted
Lien or that is
otherwise entitled to priority over the Borrower's
obligations under or in connection with the Loan Documents,
(y)
any reduction arising from an
amount owing to an Obligor upon the termination of
derivatives entered into between the Obligor and such Lender4,
or (z) any payment to which
such Lender is entitled as a result of any form
of credit
protection obtained by such Lender.
The
Obligors
consent to the foregoing and agree,
to the extent they may effectively do so under Applicable
Law, that any Lender acquiring a participation pursuant
to
the foregoing arrangements may exercise against each Obligor
rights of setoff and counterclaim and similar rights of Lenders with respect
to
such participation as fully as if such Lender were a direct
creditor of each Obligor in the amount of such
participation.
(a)
Funding
by Lenders;
Presumption by Administrative Agent. Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any
advance of funds that such
Lender will not
make available to the
Administrative Agent such Lender’s share
of such advance, the Administrative Agent may assume that
such Lender has made such share available on such
date in
accordance with the provisions of this Agreement concerning
funding by Lenders and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of
the
applicable advance available to the Administrative
Agent,
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then
the applicable Lender shall pay to the Administrative
Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at
a rate determined by the Administrative Agent in accordance
with prevailing banking industry practice on interbank
compensation. If such Lender pays such amount to
the Administrative Agent, then such amount shall
constitute
such Lender’s Loan included
in such
advance. If the Lender does not do so forthwith, the Borrower shall pay to
the
Administrative Agent forthwith on demand such corresponding amount with interest
thereon at the interest rate applicable to the advance in question. Any payment
by the Borrower shall be without prejudice to any
claim the
Borrower may have against a Lender
that
has failed to make such payment to the Administrative
Agent.
(b)
Payments
by Borrower; Presumptions by Administrative
Agent. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the
account of any Lender hereunder
that the
Borrower will not
make such payment, the
Administrative Agent may assume that the
Borrower
has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute the amount due to the
Lenders. In such event, if the Borrower
has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender
with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment
to
the Administrative Agent, at a rate determined
by the Administrative Agent in accordance with prevailing
banking industry
practice on interbank compensation.
7.1 Appointment
and Authority. Each of the Lenders and the Issuing
Bank hereby irrevocably appoints the Person identified elsewhere in this Agreement
as
the Administrative Agent5 to act on its behalf
as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of
this
Article are solely for the benefit of the Administrative
Agent, the Lenders and the Issuing
Bank,
and no Obligor shall have rights as a third party
beneficiary
of any of such provisions.
7.2 Rights
as a Lender. The Person
serving
as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the
same as though it were not the Administrative Agent and the
term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person
serving as
the Administrative Agent hereunder
in its
individual capacity. Such Person and its Affiliates
may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with any Obligor or any Affiliate
thereof as if such Person were not the
Administrative
Agent and without any duty to account to the
Lenders.
(1) The
Administrative Agent shall not have any duties
or obligations
except those expressly set forth herein and in the other
Loan Documents.6
Without limiting the
generality of the foregoing, the Administrative
Agent:
|
6
|
It
is anticipated that the Credit Agreement will require the Borrower
to be
responsible for compliance with all requirements to maintain perfection
of
security.
|
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(a) shall
not be subject to any fiduciary or other implied duties, regardless of whether
a
Default has occurred and is continuing;
(b) shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby
or
by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing
by the Required Lenders
(or such other
number or percentage of the Lenders as shall be expressly
provided for in the Loan Documents),
but the
Administrative Agent shall not be required
to take any action
that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that
is contrary to any Loan
Document or Applicable Law; and
(c) shall
not, except as expressly set forth herein and in the other
Loan Documents,
have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates
that is
communicated to or obtained by the person serving as the Administrative Agent or any of its Affiliates
in
any capacity.
(2) The
Administrative Agent shall not be liable
for any action taken
or not taken by it (i) with the consent or at the request of
the Required Lenders
(or such other number
or percentage of the Lenders as is necessary, or as the
Administrative
Agent believes in good faith is necessary,
under the provisions of the Loan Documents)
or
(ii) in the absence of its own gross negligence
or wilful
misconduct. The Administrative Agent shall be deemed not
to
have knowledge of any Default unless and until notice
describing the Default is given to the Administrative
Agent by the Borrower or a Lender.
(3) Except
as otherwise expressly specified in this Agreement, the
Administrative
Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with this Agreement or any other Loan Document,
(ii)
the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection
herewith
or therewith, (iii) the performance or observance of any
of
the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default,
(iv)
the validity, enforceability,
effectiveness or genuineness of this Agreement, any other
Loan Document
or any other agreement, instrument or document
or (v) the satisfaction of any condition specified
in this
Agreement, other than to confirm receipt
of items expressly
required to be delivered to the Administrative
Agent.
7.4 Reliance
by Administrative Agent. The Administrative Agent shall
be entitled to rely upon, and shall not incur any liability for relying upon,
any notice, request, certificate, consent, statement, instrument, document
or
other writing (including any electronic message, Internet
or
intranet posting or other distribution) believed by it to be genuine and to
have
been signed, sent or otherwise authenticated by
the proper
Person. The Administrative
Agent also may
rely upon any statement made to it orally or by telephone and believed by it
to
have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or
the
issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the Issuing
Bank, the Administrative Agent may presume that such
condition is satisfactory to such Lender or the Issuing
Bank unless the Administrative Agent shall have received
notice to the contrary from
such Lender or the Issuing
Bank prior to the making of such Loan or the issuance of such
Letter of Credit. The Administrative Agent may consult with
legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of
any such counsel, accountants or experts.
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7.6 Delegation
of Duties. The Administrative Agent may perform any and
all
of its duties and exercise its rights and powers hereunder or
under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent from among
the Lenders (including
the Person serving as Administrative
Agent) and their
respective Affiliates. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related
Parties. The provisions of this Article and other provisions of this Agreement for the benefit of the Administrative
Agent shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
(1) The
Administrative Agent may at any time give
notice of its
resignation to the Lenders, the Issuing
Bank and the Borrower. Upon receipt of any such notice
of
resignation, the Required Lenders
shall
have the right, in consultation with the Borrower, to appoint
a successor, which shall be a Lender having a Commitment
to a revolving credit if one or more is established in
this Agreement and having an office in Toronto,
Ontario
or Montréal,
Québec, or
an Affiliate of any such Lender
with an office in Toronto or Montréal. The
Administrative
Agent may also be
removed at any time by the Required Lenders
upon 30 days' notice to the Administrative Agent and the Borrower
as long as
the Required Lenders,
in consultation with
the Borrower, appoint and obtain the acceptance
of a
successor within such 30 days, which shall be a Lender having
a Commitment to a revolving credit if one or
more is
established in this Agreement and having an office in Toronto
or Montréal, or an Affiliate
of any such Lender with an office in
Toronto
or Montréal.
(2) If
no such successor shall have been so appointed by the Required Lenders
and shall have accepted such
appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders,
appoint a successor Administrative Agent
meeting the qualifications specified in Section 7.7(1),
provided that if the Administrative
Agent shall notify
the Borrower and the Lenders
that no
qualifying Person has accepted such appointment, then
such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Administrative
Agent
shall be discharged from its duties and obligations hereunder
and under the other Loan Documents (except that in the case
of any collateral security held by the Administrative Agent
on behalf of the Lenders under any of the Loan
Documents, the retiring Administrative Agent shall continue to hold
such collateral security
until such time as a successor Administrative Agent is
appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender directly, until such time as the Required
Lenders appoint a successor Administrative
Agent as provided for above in the preceding paragraph.
(3) Upon
a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the former Administrative Agent, and the former Administrative
Agent shall be discharged from all of its duties and
obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided in
the preceding paragraph). The fees payable by the Borrower to
a successor Administrative Agent shall be the same as
those
payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the termination
of the service of
the former Administrative Agent, the provisions of this
Section 7 and of Section 9 shall
continue
in effect for the benefit of such former Administrative
Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
former Administrative Agent was acting as Administrative
Agent.
7.8 Non-Reliance
on Administrative Agent and Other Lenders. Each
Lender
and the Issuing
Bank
acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender
or any
of their Related Parties and based on such documents
and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender
and the Issuing
Bank also
acknowledges that it will, independently and without reliance
upon the Administrative
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Agent
or any other Lender or any of their Related
Parties and based on such documents and information as it shall from time to
time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other
Loan Document
or any related agreement or any document
furnished hereunder or thereunder.
7.10 No
Other Duties. etc. Anything herein to the contrary
notwithstanding, none of the Bookrunners, Arrangers
or holders of similar titles, if any, specified in this
Agreement shall have any powers, duties or
responsibilities
under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent or a Lender
hereunder.
(a)
Notices
Generally. Except in the case of notices and
other communications expressly permitted to be given by telephone (and except
as-provided in paragraph (b) below), all notices and other
communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified
or
registered mail or sent by telecopier to the addresses or telecopier numbers
specified elsewhere in this Agreement7 or, if
to a Lender, to it at its address or telecopier number
specified
in the Register or, if to an Obligor
other
than the Borrower, in care of the Borrower.
Notices
sent by hand or overnight
courier service, or mailed by certified or registered mail, shall be deemed
to
have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given on a business day between
9:00 a.m. and 5:00 p.m. local time where the recipient is located, shall be
deemed to have been given at 9:00 a.m. on the next business day for the
recipient). Notices
delivered through
electronic communications to the extent provided in paragraph (b) below, shall be effective as provided
in said paragraph
(b).
(b)
Electronic
Communications. Notices
and other communications to the Lenders
and the Issuing
Bank hereunder may be delivered or furnished by
electronic communication
(including e-mail and Internet or intranet
websites) pursuant
to procedures approved by the Administrative
Agent,8provided that the foregoing shall not apply to
notices to any Lender of Loans to be
made or
Letters
of Credit to be issued if such Lender has notified the Administrative
Agent that
it is incapable of receiving
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8
|
Administrative
Agents may wish to prescribe procedures for electronic communications
and
to disseminate those procedures to
Lenders.
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notices
under such Article by electronic communication. The Administrative Agent or the Borrower may,
in its
discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant
to procedures
approved by it, provided that approval of such procedures may be limited
to particular notices or communications.
Unless
the Administrative Agent otherwise
prescribes, (i) notices and other communications sent
to an
e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is not
sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business
on
the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address
as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address
therefor.
(c)
Change
of Address. Etc. Any party hereto may change its
address or telecopier number for notices and other communications hereunder by notice to the other parties
hereto.
(a)
Costs
and Expenses. The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including
the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with
the
syndication of the credit facilities provided for herein, the
preparation, negotiation, execution, delivery and
administration of this Agreement and the other Loan Documents
or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket
expenses incurred by the Issuing
Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable
out-of-pocket
expenses incurred by the Administrative Agent, any Lender
or the Issuing Bank, including
the reasonable fees, charges and disbursements of counsel,
in connection with the enforcement or protection of its rights in connection
with this Agreement and the other Loan
Documents, including its rights under this Section,
or in
connection with the Loans made or Letters
of Credit issued hereunder, including
all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters
of
Credit.
(b)
Indemnification
by the Borrower. The Borrower shall indemnify the Administrative
Agent
(and any sub-agent thereof), each Lender and the Issuing
Bank, and each Related Party of any of
the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each
Indemnitee
harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the
fees, charges and disbursements of any counsel for any Indemnitee, incurred by any Indemnitee
or
asserted against any Indemnitee by any third party or by any
Obligor
arising out of, in connection with, or as a result of
(i) the execution
or delivery of this
Agreement, any other Loan Document
or any
agreement or instrument contemplated hereby or thereby, the performance or
non-performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation
or non-consummation of
the transactions contemplated hereby or thereby,
(ii) any
Loan
or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal
by the Issuing
Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or Release
of Hazardous Materials on or from any property owned or operated by any Obligor,
or any Environmental Liability related in any way
to any Obligor, or (iv) any actual or prospective claim, litigation,
investigation or
proceeding relating to any of the foregoing, whether based on contract, tort
or
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any
other theory, whether brought by a third party or by an Obligor
and regardless of whether any Indemnitee is a party thereto,
provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that
such losses, claims,
damages, liabilities or related expenses (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to
have
resulted from the gross negligence or wilful misconduct of such Indemnitee or (y) result
from a claim brought by
the Borrower or any other Obligor
against
an Indemnitee for breach in bad faith of such
Indemnitee's
obligations hereunder
or under any other Loan Document, if the Obligor
has obtained a final and nonappealable judgment in its
favour on such claim as determined by a court of competent jurisdiction, nor
shall it be available in respect of matters specifically addressed in Sections
3.1, 3.2 and 9(a).
(c)
Reimbursement
by Lenders. To
the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under paragraph (a) or (b) of this Section
to be paid by it to the Administrative Agent (or any
sub-agent thereof), the Issuing
Bank or any
Related Party of any of the foregoing, each
Lender
severally agrees to pay to the Administrative Agent (or any such sub-agent),
the Issuing
Bank or such Related
Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent (or any such
sub-agent) or the Issuing
Bank in its capacity
as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent)
or Issuing
Bank in connection with such
capacity. The obligations of the Lenders under this paragraph
(c) are
subject to the other provisions of this Agreement concerning several liability of
the Lenders.
(d)
Waiver
of Consequential Damages. Etc. To the fullest
extent permitted by Applicable Law, the Obligors
shall not assert, and hereby waive, any claim against any
Indemnitee, on any theory of liability, for
indirect,
consequential, punitive, aggravated or exemplary damages (as opposed to direct
damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document
or any
agreement or instrument contemplated hereby (or any breach thereof), the transactions contemplated hereby or thereby,
any Loan or Letter of Credit or the use of the
proceeds thereof. No
Indemnitee shall be liable for any damages
arising from the
use by unintended recipients of any information or other materials distributed
by it through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents
or the transactions contemplated
hereby or thereby.
(a)
Successors
and Assigns Generally. The provisions of this
Agreement shall be binding upon and inure
to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that no Obligor may assign or otherwise transfer
any
of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except
(i) to
an Eligible Assignee in accordance
with the provisions of paragraph (b) of this Section, (ii) by
way of participation in accordance with the provisions of paragraph (d) of
this
Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph
(d) of this Section
and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders)
any legal or equitable right, remedy or claim under or by
reason of this Agreement.
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(b)
Assignments
by Lenders. Any
Lender
may at any time assign to one or more Eligible Assignees all or a portion of its
rights and obligations
under this Agreement (including
all or a
portion of its Commitment and the Loans at
the time owing to it); provided that:
(i)
except if an Event of Default has occurred
and is continuing or in the case of an assignment of the entire remaining amount
of the assigning Lender’s Commitment
and
the Loans at the time owing to it or in the case
of an
assignment to a Lender or an Affiliate
of
a Lender or an Approved
Fund with respect
to a Lender, the aggregate amount of the Commitment
being assigned (which for this purpose includes Loans outstanding
thereunder) or, if the
applicable Commitment is not then in effect, the principal
outstanding balance of the Loan of the assigning Lender
subject to each such assignment (determined as of the date
the Assignment and Assumption with respect to
such assignment
is delivered to the Administrative Agent or, if “Trade Date”
is specified
in the Assignment and
Assumption, as of the Trade Date) shall not be less than
$5,000,000, in the case of any assignment in respect of a revolving facility,
or
$1,000,000, in the case of any assignment in respect of a term facility, unless
each of the Administrative Agent and, so long as no Default has occurred and
is
continuing, the Borrower otherwise consent to a lower amount (each such consent
not to be unreasonably withheld or delayed);
(ii)
each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and
obligations under this Agreement with respect to the Loan or
the Commitment assigned, except that this
clause (ii) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among separate
credits on a non-pro rata basis;
(iii)
any assignment of a Commitment relating to
a credit under which Letters
of Credit may be
issued must be approved by any Issuing
Bank
(such approval not to be unreasonably withheld or delayed) unless the Person that is the proposed assignee is itself
already a Lender with a Commitment
under that
credit;
(iv)
any assignment must be approved by the Administrative Agent (such approval not to
be unreasonably withheld
or delayed) unless:
(x)
in the case of an assignment of a Commitment
relating to a revolving credit, the proposed assignee is itself already a Lender with the same type of Commitment,
(y)
no Event of Default has occurred and is
continuing, and the assignment is of a Commitment relating to
a non-revolving credit that is fully advanced, or
(z)
the proposed assignee is a bank whose senior, unsecured,
non-credit enhanced, long term debt is rated at least A3, A- or A low by at
least two of Xxxxx'x Investor Services Inc., Standard
&
Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. and
Dominion Bond Rating Service Limited, respectively;
(v)
any assignment must be approved by the Borrower (such approval not to be unreasonably
withheld or delayed)
unless the proposed assignee is itself already a Lender with
the same type of Commitment or a Default
has occurred and is continuing; and
(vi)
the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment
and
Assumption, together with a processing and recordation fee in an amount
specified elsewhere in this Agreement10 and
the Eligible Assignee, if it shall not be a Lender,
shall deliver to the Administrative
Agent an Administrative
Questionnaire.
10 Ensure
that the
Credit Agreement specifies the amount of this fee.
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Subject
to acceptance and recording thereof by the Administrative Agent pursuant to paragraph
(c) of this Section,
from and after the effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and,
to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender
under this Agreement and the other Loan Documents,
including
any collateral security, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under
this Agreement (and, in the case of an Assignment
and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement,
such Lender shall cease to be a
party hereto) but shall continue to be entitled to the benefits of Sections
3 and 9, and shall continue to be liable
for any breach of
this Agreement by such Lender, with respect to facts and circumstances occurring
prior to the effective date of such assignment. Any assignment or
transfer by a Lender of rights or obligations under this
Agreement that does not comply with this
paragraph shall be
treated for purposes of this Agreement as a sale by such
Lender
of a participation in such rights and obligations in
accordance with paragraph (d) of this Section. Any payment by an
assignee to an assigning Lender in connection with an assignment or transfer
shall not be or be deemed to be a repayment by the Borrower or a new Loan to
the
Borrower.
(c)
Register.
The Administrative Agent shall maintain at
one of its offices in Toronto, Ontario
or Montréal, Québec a copy of
each Assignment and Assumption delivered to
it and a
register for the recordation of the names and addresses of the Lenders, and the Commitments
of, and principal
amounts of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the “Register”).
The entries in the Register
shall be conclusive, absent manifest error, and the Borrower, the Administrative
Agent and the
Lenders may treat each Person
whose name
is recorded in the Register pursuant to the terms hereof
as a Lender hereunder
for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower and any Lender,
at any reasonable time and from time to time upon
reasonable prior notice.
(d)
Participations.
Any Lender may at
any time, without the consent of, or notice to, the Borrower
or the Administrative Agent, sell participations
to any
Person (other than a natural person, an
Obligor
or any Affiliate of an Obligor11)
(each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including
all or a portion of its
Commitment and/or the Loans
owing to
it); provided that (i) such Lender’s
obligations under this Agreement shall
remain unchanged, (ii) such Lender
shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower,
the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement. Any payment
by a Participant to a Lender in connection with a sale of a participation shall
not be or be deemed to be a repayment by the Borrower or a new Loan to the
Borrower.
Subject
to paragraph (e) of this Section, the Borrower agrees that each Participant
shall be
entitled to the benefits of Section 3 to the same
extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the
benefits of Section 4 as though it were a Lender,
provided such Participant agrees to be
subject to Section 5 as though it were a Lender.
(e)
Limitations
upon Participant
Rights. A Participant
shall not be entitled to
receive any greater payment under Section 3.1 and 3.2
than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower’s prior
written consent. A Participant that would be a Foreign
Lender
if it were a Lender shall not be entitled to the benefits
of Section 3.2 unless the Borrower
is notified of the
participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 3.2(e)
as
though it were a Lender.
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11
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Consideration
should be given to the percentage of Lenders required to permit
the sale
of a participation to an Obligor or any Affiliate or Subsidiary
of an
Obligor.
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(f)
Certain
Pledges. Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, but no such pledge or
assignment shall release such Lender from any of its obligations hereunder
or
substitute any such pledgee or assignee for such Lender as a party
hereto.
11.
Governing Law: Jurisdiction: Etc.
(a)
Governing
Law. This Agreement shall
be governed by, and construed in accordance with, the laws of the Province
specified elsewhere in this Agreement12 and
the laws of Canada
applicable in that
Province.
(b)
Submission
to Jurisdiction. Each Obligor irrevocably and unconditionally
submits, for itself and its
property, to the nonexclusive jurisdiction
of the courts of
the Province specified elsewhere in this Agreement, and any
appellate court from any thereof, in any action or proceeding arising out of
or
relating to this Agreement or any other Loan
Document, or for recognition or enforcement of any judgment,
and each of the parties hereto irrevocably and unconditionally agrees that
all
claims in respect of any such action or proceeding may be heard and determined
in such court. Each of the parties hereto 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. Nothing in this Agreement or in any other
Loan
Document shall affect any right that the Administrative Agent or any Lender
may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against
any Obligor or its properties in the courts
of any
jurisdiction.
(c)
Waiver
of Venue. Each Obligor
irrevocably and unconditionally waives, to the fullest extent permitted by
Applicable Law, any objection that it may
now or hereafter
have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by Applicable Law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER
LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION.
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(a)
Counterparts:
Integration:
Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement and the
other Loan Documents and any separate letter
agreements with
respect to fees payable to the Administrative Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous
agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in the conditions
precedent Section(s)
of this Agreement, this Agreement
shall
become effective when it has been executed by the Administrative Agent and when the Administrative
Agent has received counterparts hereof that, when taken together, bear
the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy or
by sending a scanned copy by electronic mail shall be effective as delivery
of a
manually executed counterpart of this Agreement.
(b)
Electronic
Execution of Assignments. The words “execution,” “signed,”
“signature,”
and
words of like import in any Assignment and Assumption shall be deemed
to include electronic signatures or the keeping
of records in
electronic form, each of which shall be of the same legal effect, validity
or
enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and
as
provided for in any Applicable Law, including
Parts 2 and 3 of the Personal
Information Protection and Electronic Documents Act
(Canada), the Electronic Commerce Act, 2000 (Ontario)
and other similar federal or provincial laws based on the
Uniform Electronic Commerce Act of the
Uniform
Law Conference of Canada or its Uniform
Electronic Evidence Act, as the case may
be.
(1) Each
of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a)
to it, its
Affiliates and its and its Affiliates'
respective partners, directors, officers, employees, agents, advisors and
representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to
keep such Information confidential), (b)
to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory
authority), (c) to the extent required by Applicable
Laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e)
in connection with the exercise of any remedies hereunder or under any other Loan
Document or
any action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights
hereunder
or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant
in, or any prospective assignee of or Participant
in, any of its rights or obligations
under this Agreement or (ii)
any actual
or prospective counterparty (or its advisors) to any swap, derivative,
credit-linked note or similar transaction relating to the Borrower and its obligations, (g)
with the
consent of the Borrower or (h)
to the
extent such Information (x)
becomes
publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative
Agent or any Lender
on a non-confidential
basis from a source other than an Obligor.
(2) For
purposes of this Section, “Information” means all information received in
connection with this Agreement from any Obligor
relating to any Obligor or any of its
Subsidiaries
or any of their respective businesses, other
than any such information that is available to the Administrative Agent or any Lender
on a
non-confidential basis prior to such receipt. Any Person required to maintain
the confidentiality of Information as provided in this Section
shall be considered to have
complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such Information as such Person
would accord to its
own confidential information. In addition, the Administrative Agent may disclose to any
agency or organization
that assigns standard identification numbers to loan facilities such basic
information describing the facilities provided hereunder as
is necessary to assign unique identifiers (and, if requested, supply a copy
of
this Agreement), it being understood that the
Person
to whom such disclosure is made will be
informed of the confidential nature of such Information and
instructed to make available to the public only such Information as such person normally makes
available in the course
of its business of assigning identification numbers
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137
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(3) In
addition, and notwithstanding anything herein to the
contrary, the Administrative Agent may provide the
information described on Exhibit
B
concerning the Borrower and the credit facilities
established herein to Loan
Pricing
Corporation and/or other recognized trade publishers of information for general
circulation in the loan market.
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ASSIGNMENT
AND ASSUMPTION
This
Assignment
and Assumption
(the “Assignment
and Assumption”) is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor]
(the “Assignor”) and
[Insert
name of Assignee] (the “Assignee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Credit
Agreement
identified below (as amended, the “Credit
Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to
and incorporated herein by
reference and made a part of this Assignment and Assumption
as if set forth herein in full.
For
an agreed consideration, the Assignor
hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and
assumes from
the Assignor, subject to and in accordance
with the Standard
Terms and Conditions and the Credit
Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights
and
obligations in its capacity as a Lender under the Credit
Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to
the
amount and percentage interest identified below of all of such outstanding
rights and obligations of the Assignor under the respective
facilities identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned
under Applicable Law, all claims, suits, causes
of action and any other
right of the Assignor (in its capacity as a Lender)
against any Person, whether known or
unknown, arising under or in connection with the Credit
Agreement, any other documents or
instruments delivered pursuant thereto or the loan-transactions governed thereby
or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims
and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned pursuant to clauses (i)
and (ii) above being referred to herein collectively
as, the
“Assigned Interest”). Such sale and assignment is
without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without
representation or warranty by the Assignor.
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Assignor:
|
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Assignee:
|
|
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[and
is an Affiliate/Approved Fund of [identify
Lender]1]
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Borrower(s):
|
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Administrative
Agent: _______________________,as the administrative agent under
the
Credit Agreement
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|
Credit
Agreement:
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[The
[amount] Credit Agreement dated as of _______ among [name of
Borrower(s)], the Lenders parties thereto, [name of
Administrative Agent], as Administrative Agent, and the other agents
parties thereto]
|
-
139
-
|
Assigned
Interest:
|
|
Facility
Assigned2
|
Aggregate
Amount of
Commitment/Loans
for
all Lenders3
|
Amount
of
Commitment/Loans
Assigned3
|
Percentage
Assigned of Commitment/Loans4
|
CUSIP
Number
|
|
$
|
$
|
%
|
||
|
$
|
$
|
%
|
||
|
$
|
$
|
%
|
2
Fill in the appropriate terminology for the types of facilities
under the Credit Agreement that are being assigned under this Assignment
(e.g.
“Revolving Credit Commitment,” “Term Loan Commitment,” etc.)
3
Amount to be adjusted by the counterparties to take into account
any payments or prepayments made between the Trade Date and the Effective
Date.
4
Set
forth, to at least 9 decimals, as a percentage of the Commitment/Loans of
all
Lenders thereunder.
|
5
|
To
be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade
Date.
|
-
140
-
Effective
Date: ___________, 20___
[TO
BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
|
ASSIGNOR
[NAME
OF ASSIGNOR]
|
||||
|
By:
|
||||
|
Title:
|
||||
|
ASSIGNEE
[NAME
OF ASSIGNEE]
|
||||
|
By:
|
||||
|
Title:
|
||||
|
[Consented
to and]6 Accepted:
|
||||
|
[NAME
OF ADMINISTRATIVE AGENT], as
Administrative
Agent
|
||||
|
By
|
||||
|
Title:
|
||||
|
[Consented
to:]7
|
||||
|
[NAME
OF RELEVANT PARTY]
|
||||
|
By
|
||||
|
Title:
|
||||
6 To
be
added only if the consent of the Administrative Agent is required by the
terms
of the Credit Agreement.
7 To
be
added only if the consent of the Borrower and/or other parties (e.g. Swingline
Lender, L/C Issuer) is required by the terms of the Credit
Agreement.
-
141
-
[ ]1
STANDARD
TERMS AND CONDITIONS FOR
ASSIGNMENT
AND ASSUMPTION
1.1 Assignor.
The Assignor (a)
represents and warrants
that (i) it is the legal and beneficial owner
of the Assigned Interest, (ii)
the Assigned Interest is free and clear of
any lien, encumbrance or
other adverse claim and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate
the transactions
contemplated hereby; and (b) assumes no responsibility with
respect to (i) any statements, warranties or representations
made in or in connection with the Credit
Agreement or any other Loan
Document2, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the Borrower,
any of its Subsidiaries or Affiliates
or
any other Person obligated in respect of any Loan
Document
or (iv) the performance or observance by the
Borrower,
any of its Subsidiaries or Affiliates
or any other Person of any of their
respective obligations under any Loan Document.
1.2 Assignee.
The Assignee (a)
represents and warrants
that (i) it has full power and authority, and
has taken all
action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become
a Lender under the Credit
Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit
Agreement (subject to
receipt of such consents as may be required under the Credit
Agreement), (iii) from
and after the Effective Date, it shall be bound by the
provisions of the Credit
Agreement as a Lender thereunder and, to the extent of
the
Assigned Interest, shall have the obligations
of a Lender thereunder, (iv)
it has received a copy
of the Credit
Agreement,
together with copies of the most recent financial statements delivered pursuant
to Section ___
thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and Assumption and to purchase
the Assigned Interest on the basis of which
it has made such analysis
and decision independently and without reliance on the Administrative Agent or any other Lender,
and
(v) if it is a Foreign
Lender3, attached to the Assignment
and
Assumption is any documentation required to be delivered by it pursuant to
the
terms of the Credit
Agreement, duly completed and executed by the Assignee; and
(b)
agrees that (i) it will,
independently and without reliance on the Administrative
Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at
the
time, continue to make its own credit decisions in taking or not taking action
under the Loan
Documents, and (ii) it will perform in accordance with
their terms all of the
obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.
2.
Payments.
From and after the Effective Date, the Administrative
Agent shall
make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued
prior to, on or
after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments
in
payments by the Administrative Agent for periods prior
to
the Effective Date or with respect to the making
of this
assignment directly between themselves.
|
1
|
Describe
Credit Agreement at option of Administrative
Agent.
|
|
3
|
The
concept of “Foreign Lender” should be conformed to the section in the
Credit Agreement governing withholding taxes and
gross-up.
|
-
142
-
3.
General
Provisions.
This Assignment and Assumption shall be binding
upon, and
inure to the benefit of, the parties hereto and their respective successors
and
permitted assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy or
by sending a
scanned copy by electronic mail shall be effective as delivery of a manually
executed counterpart of this Assignment and Assumption. This
Assignment
and Assumption shall be governed by, and
construed in accordance with, the law governing the Credit
Agreement.
-
143
-
LOAN
MARKET DATA TEMPLATE
Recommended
Data Fields - At Close
The
items highlighted in bold are those that Loan
Pricing Corporation (LPC) deem essential. The
remaining items are those that LPC has seen become more
prominent over time as transparency has increased in the U.S.
Loan Market.
|
Purpose
|
||
|
Sponsor
|
||
|
Facility
Signing Date
|
||
|
Assignment
Language
|
Pricing
|
|
|
Law
Firms
|
||
|
MAC
Clause
|
||
|
Cash
Dominion
|
||
|
Mandatory
Prepays
|
||
|
Other
Restrictions
|
||
|
Annual
Fee
|
||
|
Utilization
Fee
|
||
|
LC
Fee(s)
|
||
|
BA
Fee
|
||
|
Prepayment
Fee
|
||
|
Other
Fees to Market
|
||
-
144
-
SCHEDULE
E
APPLICABLE
PERCENTAGES OF LENDERS
[Note:
Applicable Percentages are nil unless otherwise noted]
THE
BANK OF NOVA SCOTIA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
37.686437%
Credit
A2 (adjusted in accordance with Section 8.2) - 100%
Credit
A (overall) - 41.247100%
Credit
C - 41.247100%
Credit
E - 41.000000%
NATIONAL
BANK OF CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
19.056135%
Credit
A (overall) - 17.967200%
Credit
C - 17.967200%
Credit
E - 17.000000%
BANK
OF MONTREAL
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
10.480875%
Credit
A (overall) - 9.882000%
Credit
C - 9.882000%
Credit
E - 9.000000%
HSBC
BANK CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
9.909190%
Credit
A (overall) - 9.343000%
Credit
C - 9.343000%
Credit
X - 0.000000%
XXXX
XX XXXXXXX, X.X., Xxxxxx Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
7.622455%
Credit
A (overall) - 7.186900%
Credit
C - 7.186900%
Credit
E - 7.186900%
SOCIETE
GENERALE (CANADA)
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.716841%
Credit
A (overall) - 5.390200%
Credit
C - 5.390200%
Credit
E - 5.390200%
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.716841%
Credit
A (overall) - 5.390200%
Credit
C - 5.390200%
Credit
E - 5.390200%
NORDEA
BANK NORGE ASA
Credit
B - 100%
JPMORGAN
CHASE BANK N.A., Toronto Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
3.811227%
Credit
A (overall) - 3.593400%
Credit
C - 3.593400%
Credit
E - 3.593400%
-
146
-
SCHEDULE
F
DETAILS
OF CAPITAL STOCK, PROPERTY ETC.
[see
references in Sections 9.1.5(a), 10.5 and 10.6.2(e)]
[See
attached]
-
147
-
DETAILS
OF CAPITAL STOCK, PROPERTY ETC.
4083423
CANADA INC.
Corporate
History
Incorporated
on June 10, 2002 under the laws of Canada as 4083423 Canada Inc.
Shareholders
One
common share issued to CHC Helicopter Corporation.
Nature
of Business
Used
for selling/leasing
aircraft.
Head
Office
St.
John’s, Newfoundland and
Labrador
Chief
Executive Xxxxxx
0000
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
Xxxxxxxx
Capital
Stock Owned
None
Location
of Property
See Fleet
List
for location of aircraft.
ASTEC
HELICOPTER SERVICES AS
Corporate
History
Established
under the laws of Norway on 15 June 2000 under the name Astec Helicopter
Services AS
Shareholders
100%
owned by Helicopter Services Group
AS (NOK 100,000,000 fully paid)
-
148
-
Nature
of Business
Direct
or indirect supply of services related to repair and maintenance of aircraft,
engineering and related services.
Head
Office and Chief Executive Office
Sola,
Norway
Capital
Stock Owned
None
AUSTRALIAN
HELICOPTERS TRUST
Corporate
History
The
Trust was established by an indenture dated 6 April 1993 between Xxxxx Xxxxxx
Xxxxx and Xxxxx Helicopters International Pty. Ltd. as trustee. The
trust deed was amended by a Supplemental Deed of Trust dated 15 October
1999.
Unitholders
Xxxxx
Xxxx Strait Helicopters Pty Ltd. owns 100% of its units.
Nature
of Business
Manages
helicopter overhaul and safety equipment facilities of the Xxxxx Helicopter
group
Head
Office and Chief Executive Office
00
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital
Stock Owned
None
Location
of Property
Not
applicable
AVIATION
PERSONNEL RECRUITMENT & MANAGEMENT (APRAM) LTD.
Corporate
History
Incorporated
under the laws of the Republic of Cyprus under the name of Aviation Consulting
& Marketing (Middle East) Limited. Name changed to Aviation
Personnel Recruitment & Management (APRAM) Limited on 14 May
1983.
-
149
-
Shareholders
CHC
Helicopters International Inc. - 10,000 shares of CYP 1,00 each.
Nature
of Business
Personnel
recruitment and management company.
Head
Office and Chief Executive Xxxxxx
0X
Xxxxxxxx Xxxxxx, Xxxxxxx 0000, Xxxxxx
Capital
Stock Owned
None
Location
of Property
Not
applicable.
BOND
HELICOPTER SERVICES LIMITED (Company Number SC178188)
Corporate
History
Incorporated
under the laws of Scotland, 26 August 1997. Its previous name was
Comlaw No 447 Limited, which changed to its current name on 6 January
1998.
Shareholders
Brintel
Helicopters Limited owns 100% of:
|
Issued
share capital:
|
47,238,994
pounds, divided into 47,238,994 Ordinary Shares of
₤1.00 each
15,746,331
pounds, divided into 15,746,331 Redeemable Ordinary Shares of ₤1.00
each
|
|
Nominal
share capital:
|
64,000,000
pounds divided into 48,000,000 Ordinary shares of 1pound each and
16,000,000 Redeemable Ordinary shares of 1 pound
each.
|
Nature
of Business
Holding
company.
Head
Office and Chief Executive Office (Registered
Office)
CHC
House, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxx, Xxxxxxxx, XX00
0XX
-
150
-
Capital
Stock Owned
Owns
entire issued share capital of CHC Scotia Limited and Bond Rotary
Wing Limited
Location
of Property
Not
applicable; holding company
BRINTEL
HELICOPTERS LIMITED (Company Number SC137022)
Corporate
History
Incorporated
under the laws of Scotland 9 March 1992 under the name Comlaw No. 287
Limited
Changed
name to British International Helicopters (North Sea) Limited on 9 April
1992
Changed
name to Brintel Helicopters Limited on 29 October 1992
Shareholders
Brintel
Holdings Limited - 2 Ordinary shares of £1.00 each
Nature
of Business
Formerly
UK operating company engaged mainly in offshore
contracts. Now a holding company.
Head
Office and Chief Executive Office (Registered
Office)
XXX
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx, Dyce, Aberdeen, AB21
0GL
Capital
Stock Owned
Owns
100% of Vinland Denmark A/S, Bond Helicopter Services Limited and Bond
Helicopters Limited.
Location
of Property
Scotland
BRINTEL
HOLDINGS LIMITED (Company Number SC136650)
Corporate
History
Incorporated
under the laws of Scotland 14 February 1992 under the name Dreamexist
Limited. Changed name to Brintel Holdings Limited on 26 March
1993.
-
151
-
Shareholders
Canadian
Helicopters (U.K.) Limited - 1,500,000 ordinary 20p shares, 1,000,000 "A"
participating shares of 20p, 6,750,000 7.5% cumulative redeemable “A” preference
and 3,250,000 7.5% cumulative redeemable “B” preference shares
Nature
of Business
Holding
company
Head
Office and Chief Executive Office (Registered Office)
XXX
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx,
Dyce,
Xxxxxxxx XX00 0XX
Capital
Stock Owned
Owns
all 100% of issued share capital of Brintel Helicopters Limited, Heliworld
Leasing Limited, Multifabs Survival Limited and Whirly Bird Services
Limited
Location
of Property
Not
applicable; holding company
CANADIAN
HELICOPTERS (U.K.) LIMITED (Company Number SC147943)
Corporate
History
Incorporated
under the laws of Scotland 8 December 1993 under the name Ablefun Enterprises
Limited
Changed
name to Canadian Helicopters (U.K.) Limited on 21 December 1993
Shareholders
Entire
issued share capital held by CHC Helicopters International Inc. - 36,537,458
ordinary shares, 5,259,000 "A" Preference shares, and 1,052,000 "B" Preference
shares
Nature
of Business
Holding
company.
Head
Office and Chief Executive Office (Registered Office)
XXX
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx,
Dyce,
Xxxxxxxx XX00 0XX
Capital
Stock Owned
Owns
100% of issued share capital of Brintel Holdings Limited and Flight
Handling Limited (Inactive)
-
152
-
Location
of Property
Not
applicable; holding company
CAPITAL
AVIATION SERVICES B.V.
Corporate
History
Established
under the laws of the Netherlands on 7 September 2000. Registered at
Chamber of Commerce & Industries for Amsterdam.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 202 shares of EUR 100 each
Nature
of Business
Fleet
ownership and management.
Head
Office and Chief Executive Office
Xxxxxxxxxxx
0, 0000XX
Xxxxxxxxx
Capital
Stock Owned
None
Location
of Property
See
Fleet List for description and
location of aircraft.
CHC
CAPITAL (BARBADOS) LIMITED (Company #22938)
Corporate
History
Incorporated
under the laws of Barbados on October 24, 2003 under the name CHC Asset
Management Limited. Changed name to CHC Capital (Barbados) Limited on
January 23, 2004
Shareholders
CHC
Helicopters (Barbados) Limited - 14,160,936 common shares
Nature
of Business
Loans
to related companies.
-
153
-
Head
Office and Chief Executive Office
Jalabash
House, 12 Highgate Park, St. Xxxxxxx, Barbados, W.I.
Capital
Stock Owned
None
Location
of Property
Not
applicable, no tangible property
CHC
DENMARK ApS
Corporate
History
Incorporated
under the laws of Denmark on 1 September 1998 as a private limited company
(anpartesselskab). The company also conducts business under the
secondary name Brintel Aps (CHC Denmark ApS).
Shareholders
Vinland
Denmark ApS - total share capital of DKK 125,000
Nature
of Business
Subcontractor
to CHC Scotia Limited in servicing contract with Maersk Oil
Head
Office and Chief Executive Office
Xxxx
Xxxxxxxxxx 00, 0000 Xxxxxxx, Xxxxxxx
Capital
Stock Owned
None
Location
of Property
Not
applicable; no tangible property currently owned
CHC
HELICOPTER CORPORATION
Corporate
History
Incorporated
(by amalgamation) under the laws of Canada on 10 February 1987 under the
name
000000 Xxxxxx Limited.
-
154
-
Articles
of Amalgamation between CHC Helicopter Corporation and Xxxxxx Management
Services Limited on 5 August 1987. Certificate of Amendment dated 7
August 1987 amending share provisions. Certificate of Amendment dated
27 September 1991 to increase authorized capital. Certificate of
Amendment dated 23 February 1994 to change share attributes. Articles
of Amalgamation - Schedule I updated December 1996 to change share
attributes. Articles of Amendment dated 9 December 1997 to increase
authorized capital.
Shareholders
Publicly
traded, controlled by Xxxxx X. Xxxxxx
Nature
of Business
Holding
company for operating subsidiaries
Head
Office
St.
John's, Newfoundland and Labrador
Chief
Executive Xxxxxx
0000
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
Xxxxxxxx
Capital
Stock Owned
Owns
all shares of CHC Helicopter Holdings Limited, Viking Helicopters Limited
and
4083423 Canada Inc. and some shares of CHC Helicopters International
Inc.
Location
of Property
Not
applicable; holding company
CHC
HELICOPTER HOLDINGS LIMITED
Corporate
History
Incorporated
under the laws of Ontario on 29 January 1958 under the name Norcon Builders
Limited and continued under the laws of Canada effective 29 August 1989 under
the name CHC Helicopter Holdings Limited.
Shareholders
CHC
- 3,019 Class A Shares and 230 common shares
Nature
of Business
Holding
company.
-
155
-
Head
Office
St.
John's, Newfoundland and Labrador
Chief
Executive Xxxxxx
0000
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
Xxxxxxxx
Capital
Stock Owned
Owns
130 common shares of CHC Helicopters International Inc.
Location
of Property
Not
applicable; holding company
CHC
HELICOPTERS (AFRICA) (PROPRIETARY) LTD.
Corporate
History
This
company was incorporated as a
company in accordance with the laws of the Republic of South Africa on 13
June
1960 under the name “Autair Helicopters SA (Proprietary) Limited”. It thereafter
changed its name to Court Line Helicopters (Proprietary) Limited on 3 June
1971,
again changed its name on 31 January 1975 to Court Helicopters (Proprietary)
Limited and changed its name to CHC Helicopters (Africa) (Proprietary) Limited
on 17 January 2001. The original registration number of the company was
60/02212/07 but as a result of the change of numbering in the Companies’ Office
its current registration is 1960/002212/07.
Shareholders
Court
Air (Proprietary) Ltd. owns 100% of 135 issued shares of R2.00
each.
Nature
of Business
The
Company is the Group’s main operating company providing helicopter support
service. Its core business focus is that of helicopter service to
offshore oil, gas and diamond mining operations.
Head
Office and Chief Executive Office
Cape
Town International Airport, Cape Town, South Africa
Capital
Stock Owned
Owns
100% of shares of CHC Helicopters (South Africa) (Proprietary)
Ltd..
-
156
-
Location
of Property
Lease
property at CTI Airport, Cape Town Docks, Durban, Xxxxxx (Soeker), V&A
Waterfront and Johannesburg, South Africa.
See
Fleet List for locations of
aircraft.
CHC
HELICOPTERS (BARBADOS) LIMITED (Company #10852)
Corporate
History
Incorporated
under the laws of Barbados on 14 June 1995 under the name Canadian Helicopters
(Barbados) Limited. Name changed to CHC Helicopters (Barbados)
Limited on March 22, 2002.
Barbados
International Business Company.
Shareholders
CHC
Helicopters International Inc. - 23,317 Class A redeemable preference shares,
36,760,936 common shares.
Nature
of Business
Owns
or leases (purchase/finance) aircraft which are leased to CHC Leasing (Barbados)
Limited. Lender in various transactions with other
Obligors.
Head
Office and Chief Executive Office
Jalabash
House, 12 Highgate Park, St. Xxxxxxx, Barbados, W.I.
Capital
Stock Owned
Owns
100% of CHC Leasing (Barbados) Limited and CHC Capital (Barbados) Limited
(formerly CHC Asset Management Ltd.)
Location
of Property
See
Fleet List for location of aircraft.
CHC
HELICOPTERS (MAURITIUS) LIMITED
Corporate
History
Incorporated
under the laws of the British Virgin Islands on 14 September 1988, continued
under the laws of the Republic of Mauritius on 6 May 1998. Formerly
Court Helicopters Limited name changed 15 May 2002.
-
157
-
Shareholders
Authorized
share capital is 50,000 ordinary shares of US $1.00 each. Issued
share capital is one ordinary share held by Helicopter Services Group
AS
Nature
of Business
Leasing
and subleasing of aircraft
Head
Office and Chief Executive Office (Registered Office)
Les
Jamalacs, Vieux Conseil Street, Port Louis, Mauritius
Capital
Stock Owned
Owns
49% of stock of CHC Helicopters (Namibia) (Pty) Ltd. (formerly Helinamib
(Pty.)
Ltd.), a corporation incorporated in Namibia
Location
of Property
None
CHC
HELICOPTERS INTERNATIONAL INC.
Corporate
History
Articles
of Amalgamation dated 1 May 1996 between Canadian Helicopters Limited,
Helicopter Welders of Canada Ltd, Viking Helicopters (Maritimes)
Ltd./Helicopteres Viking (Maritimes) Ltee and Summerside Aerospace Centre
Limited. The name of the company was changed to CHC Helicopters
International Inc. (“CHII”) on 5 February 2001. Atlantic Turbines
Inc. amalgamated with CHII on 1 May 2001. 4235819 Canada Inc.
(formerly Canadian Helicopters (International) Limited which was formerly
Canadian Helicopter Services (Myanmar) Limited) amalgamated with CHII on
30
April 2004.
Shareholders
CHC
Helicopter Corporation - 11,729,200 common shares and 6,619 Class A - Series
2
CHC
Helicopter Holdings Limited - 130 common shares
Viking
Helicopters Limited - 100 Class A - Series 1 and 22,039 Class A - Series
2
Nature
of Business
Holds
shares in various other companies as noted below. Owns all real
property located in Canada.
International
Division: supplies helicopters for work in oil industry around the world;
participates in joint venture arrangements in Thailand (Thai Aviation Services
-
CHII has a 30% interest); Peru; Azerbaijan (East West Helicopters Limited
- CHII
has a 25% interest); Saudi Arabia (CHII receives 90% of proceeds); Myanmar
(CHII
uses an agent to whom an annual fee is paid); and Brunei (CHII uses an agent
to
whom a 10% annual fee is paid). Owns shares of other corporations
referred to below.
-
158
-
Corporate
Division: Executive office functions for CHC group of
companies
Flight
Division: Base operation at St. John’s International Airport (Sale
pending)
Head
Office Chief Executive Office
St.
John's, Newfoundland and Labrador
Chief
Executive Xxxxxx
0000
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
Xxxxxxxx
Capital
Stock Owned
Owns
100% of shares of Canadian Helicopters (UK) Limited, CHC Helicopters (Barbados)
Limited, Pacific Aerospace Services Inc.(inactive), 297303 British Columbia
Limited (inactive), 6248276 Canada Inc., CHC Sweden AB and Aviation Personnel
Recruitment & Management (APRAM) Ltd.
Owns
interests in CHC Composites Inc., formerly Newfoundland Bonding & Composites
Ltd. (100% of common shares plus one Class A Special Share, one Class B Special
Share, one Class C Special Share and one Class D Special Share), Canadian
Helicopters Limited, formerly 3793486 Canada Limited (45%), Slemon Park
Corporation (40%), Canadian Helicopters Philippines International Incorporated,
formerly Xxxxx Helicopters Philippines Inc. (40%), Thai Aviation Services
Ltd.
(30%), OSCO & CHL Arabia Limited (90%), Myanmar Helicopters International
Ltd. (49%), Aero Turbine Support Ltd. (60%)
Location
of Property
Richmond,
BC Offices
and hangar
Halifax,
NS Offices
and hanger
St.
John’s,
NF Offices
and hanger (Sale pending)
See
Fleet List for location of aircraft.
CHC
HELIKOPTER SERVICE AS
Corporate
History
Established
under the laws of Norway on 21 April 1995 under the name Helikopter Service
AS. Its organization number is 974 414 228.
-
159
-
Shareholders
Helicopter
Services Group AS owns 100% of NOK 310,000,000 divided into 3,100 ordinary
shares each with a nominal value of NOK 100,000.
Nature
of Business
The
company’s main objects include rental of transport activities with helicopters
and planes, transport generally, trade, financing and insurance, industry,
management of real estate and matters connected with the above, together
with
participation as shareholder or otherwise in other business.
HS
provides flight, training and leasing services to the Norwegian offshore
oil and
gas industry.
Head
Office and Chief Executive Office
Sola,
Norway
Capital
Stock Owned
Scancopter
AS (100%)
Location
of Property
Lease
property at Kristiansund, Xxxxxx, Xxxxx and Stavanger.
CHC
IRELAND LIMITED (Registration Number 218246)
Corporate
History
Incorporated
under the laws of Ireland on 7 June 1994. Formerly Bond Helicopters
(Ireland) Ltd. Name change 8 November 2000.
Shareholders
CHC
Scotia Limited owns 100% of:
Issued
share
capital: 80,0002
Ordinary Shares of 1 Irish pound each
Nominal
share
capital: 1,000,000
Ordinary Shares of 1 Irish pound each.
Nature
of Business
The
principal activity of the Company is aviation operations. Its
principal operations are based on contracts for helicopter support from Cork
Airport to Marathon's Kinsale Head gas field and search and rescue cover
for the
Irish Department of the Marine from Xxxxxxx Airport and Dublin
Airport.
-
160
-
Head
Office and Chief Executive Office (Registered
Office)
Cork
Airport
Cork
Ireland
Capital
Stock Owned
None
Location
of Property
Lease
offices and hangars in Cork, Swords and Xxxxxxx Airport, Ireland
CHC
LEASING (BARBADOS) LIMITED (Company #10851)
Corporate
History
Incorporated
under the laws of Barbados on 14 June 1995 under the name CHL Leasing (Barbados)
Limited. Name changed to CHC Leasing (Barbados) Limited on April 2,
2002.
Barbados
Domestic Company.
Shareholders
CHC
Helicopters (Barbados) Limited - 1 common share.
Nature
of Business
Sub-leases
aircraft to CHC Helicopters International Inc.’s non-Canadian related operations
such as Integra Leasing A.S., Thai Aviation Services Ltd. and Brintel Holdings
Limited.
Head
Office and Chief Executive Office
Jalabash
House, 12 Highgate Park, St. Xxxxxxx, Barbados, W.I.
Capital
Stock Owned
None
Location
of Property
Not
applicable; no tangible property
-
161
-
CHC
NETHERLANDS BV
Corporate
History
Established
under the laws of the Netherlands on 13 January 2004. Registered
under the Chamber of Commerce & Industries in Amsterdam.
Shareholders
100%
owned by CHC Sweden AB - 181
shares of EUR 100 each
Nature
of Business
Holding
company
Head
Office and Chief Executive Office
Amsterdam,
The Netherlands
Capital
Stock Owned
Owns
100% of Xxxxxxxxx Luchtvaart Groep B.V.
Location
of Property
Not
applicable
CHC
SCOTIA LIMITED (Company Number 936569)
Corporate
History
Incorporated
under the laws of England and Wales on 2 August 1968 under the name Jorob
Limited. Name changed to Management Aviation Limited on 21 August
1968. Name changed to Bond Helicopters Limited on October 1,
1984. Name changed to Scotia Helicopter Services Limited on 5 July
2000. Name changed to CHC Scotia Limited on 18 October
2000.
Shareholders
Bond
Helicopter Services Limited owns 4,929,780 Ordinary Shares of
₤1.00 each.
|
Issued
share capital:
|
4,929,780
Ordinary Shares of ₤1.00 each
|
|
Nominal
share capital:
|
5,500,000
Ordinary Shares of ₤1.00 each
|
Nature
of Business
The
principal UK trading subsidiary carrying on the business of providing offshore
helicopter services in the UK.
Its
principal operations include helicopter transportation service to customers
in
the oil and gas production industry (operating primarily in the UK continental
shelf area).
-
162
-
Head
Office and Chief Executive Office (Registered
Office)
North
Denes Airfield
Caister
Road
Caister
On Sea
Great
Yarmouth NR30
5TF
Capital
Stock Owned
CHC
Ireland Limited - 100%
North
Denes Aerodrome Ltd. - 100%
Scotia
Helicopter Services Limited (inactive) - 100%
Viscom
(Aberdeen) Limited - 33.3%
Quillion
Group Limited - 11% of issued Ordinary shares and 45% of issued 10% Cumulative
Redeemable Shares
Location
of Property
Owns
property as follows:
Aberdeen Office
and workshop
Shetland House
and Building
Leases
property as follows:
|
Aberdeen
|
Hangers,
Ground Lease, Cargo building
|
|
|
Peterhead
|
Ground
Lease
|
|
|
Sumburgh
Airport
|
Ground
Lease
|
|
|
Humberside
Airport (England)
|
Ground
Lease
|
|
|
Liverpool
Airport
|
Ground
Lease
|
|
|
Blackpool
Airport
|
Hanger
and Terminal
|
See
Fleet List for locations of aircraft
CHC
SWEDEN AB
Corporate
History
Established
under the laws of Sweden on 24 October 2002 under the name Stiftaren
7747AB. Name changed to CHC Sweden AB on 5 February
2004.
Shareholders
100%
owned by CHC Helicopters
International Inc.
Nature
of Business
Holding
company.
-
163
-
Head
Office and Chief Executive Office
Stockholm,
Sweden
Capital
Stock Owned
Owns
100% of CHC Netherlands
BV
Location
of Property
Not
applicable.
COURT
AIR (PROPRIETARY) LTD.
Corporate
History
This
company was incorporated as a
company in accordance with the laws of the Republic of South Africa on 20
July
1970 under the name “Heli Marine (Proprietary) Limited”. It thereafter changed
its name to Court Air (Proprietary) Limited on 7 August 1999. The original
registration number of the company was 70/9448/07 but as a result of the
change
of numbering in the Companies’ Office its current registration is
1970/009448/07.
Shareholders
Court
Helicopter Services (Proprietary) Ltd. owns 100,000 shares of R1,00
each.
Nature
of Business
Holding
company.
Head
Office and Chief Executive Office
Cape
Town International Airport, Cape Town, South Africa
Capital
Stock Owned
|
CHC
Helicopters (Africa) (Proprietary) Ltd.
|
(100%)
|
|
|
Court
Flight Safety (Proprietary) Ltd.
|
(100%)
|
|
|
Court
Republic Helicopters (Proprietary) Ltd. (dormant)
|
(100%)
|
|
|
Cape
Aero Services (Proprietary) Ltd. (dormant)
|
(100%)
|
|
|
Helicopter
Services (Proprietary) Ltd.
|
(48%)
|
Location
of Property
Not
applicable; holding company
-
164
-
COURT
HELICOPTER SERVICES (PROPRIETARY) LTD.
Corporate
History
This
company was incorporated as a
company in accordance with the laws of the Republic of South Africa on 17
August
1965 under the name “Xxxxxx & Xxxxxxx Industrialised Buildings (Cape)
(Proprietary) Limited”. It thereafter changed its name to Court Air
Holdings (Proprietary) Limited on 3 June 1975 and then changed its name once
again to Court Helicopter Services (Proprietary) Limited on 13 August
1999. The original registration number of the company was 65/7024/07
but as a result of the change of numbering in the Companies’ Office its current
registration is 1965/007024/07.
Shareholders
Helicopter
Services Group AS owns 100% of 1,000 shares of R1,00 each.
Nature
of Business
Holding
company
Head
Office and Chief Executive Office
Cape
Town International Airport, Cape Town, South Africa
Capital
Stock Owned
Owns
100% of Court Air (Proprietary) Ltd.
Location
of Property
Not
applicable; holding company
FLIGHT
HANDLING LIMITED (Company Number SC164266) (Inactive)
Corporate
History
Incorporated
under the laws of Scotland 19 March 1996 under name Firstmarch
Limited.
Changed
name to Flight Handling Limited on 30 April 1996.
Shareholders
Canadian
Helicopters (U.K.) Limited - 2 Ordinary £1.00 shares - 100% Ordinary
shares
Nature
of Business
Inactive. Holds
mortgages of Aircraft registered in Denmark to secure its indemnity in favour
of
the Lenders.
-
165
-
Head
Office and Chief Executive Office (Registered
Office)
XXX
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx,
Dyce,
Xxxxxxxx XX00 0XX
Capital
Stock Owned
None
Location
of Property
Not
applicable; no tangible property
HANDELSMAATSCHAPPIJ
XXXXXXXXX & CO. B.V. - XXXXXXXXX & CO. B.V.
Corporate
History
Established
under the laws of The Netherlands on 30 March 1973. Registered under
the Chamber of Commerce & Industries of Amsterdam.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 200 shares of NLG 1,000 each
Nature
of Business
Carrying
on a trade and agency business within aviation and other related
industries.
Head
Office and Chief Executive Office
Xxxxxxxxxxx
0, 0000 XX Xxxxxxxxx, Xxx
Xxxxxxxxxxx
Capital
Stock Owned
None
Location
of Property
Not
applicable
HELICOPTER
SERVICES GROUP AS
Corporate
History
Established
under the laws of Norway on 20 February 1956 under the name “Helikopter Service
AS.” The name was changed to Helicopter Services Group ASA on 19
February 1996 and to Helicopter Services Group AS in November 1999. Its
organisation number is 912 582 914.
-
166
-
Shareholders
Vinland
Holding AS (formerly Vinland Helicopters AS) - 100%.
The
share capital consists of NOK 236,927,427.50 divided into 20,602,385 ordinary
shares of NOK 11.50.
Nature
of Business
Holding
company.
Head
Office and Chief Executive Office
Stavanger,
Lufthavn
Sola
4050
Sola
Norway
Capital
Stock Owned
|
Xxxxx
Helicopter Services Limited
|
(100%)
|
|
Court
Helicopter Services (Proprietary) Ltd.
|
|
|
(formerly
Court Air Holdings (Proprietary) Ltd.
|
(100%)
|
|
CHC
Helikopter Service AS
|
(100%)
|
|
Astec
Helicopter Services AS
|
(100%)
|
|
CHC
Reinsurance S.A.
|
(99.9%)
|
|
Heliwest
AS
|
(100%)
|
|
CHC
Helicopters (Mauritius) Limited
|
(100%)
|
|
|
|
|
Brazilian
Helicopter Services
|
(10%)
|
Location
of Property
Norway
Real
Property Owned or Leased
Owns
two properties in Stavanger and leases properties in Oslo, Sola, Bergen and
Bodρ.
HELIWEST
AS
Corporate
History
Established
under the laws of Norway on 31 January 1970 under the name Heliwest
AS. Its organization number is 819 569 762. Its Articles
of Association were adopted at the extraordinary general meeting on 31 January
1970 with subsequent amendments at the latest at the ordinary general meeting
on
30 April 1997.
-
167
-
Shareholders
Helicopter
Services Group AS owns 100% of NOK 1,500,000 divided into 1,500 ordinary
shares
of NOK 1,000 each.
Nature
of Business
Owns
or has other interests in aircraft that are operated by related
companies.
Head
Office and Chief Executive Office
Sola,
Norway.
Capital
Stock Owned
CHC
Reinsurance SA - 3 of 500,000 shares
Location
of Property
Lease
property at Xxxx.
HELIWORLD
LEASING LIMITED (Company Number 4413202)
Corporate
History
Incorporated
under the laws of England and Wales on 10 April 2002 under the name Zoneclimb
Limited. Name changed to Heliworld Leasing Limited on 26 April
2002.
Shareholders
Brintel
Holdings Limited - 1 Ordinary share of ₤1.00
Nature
of Business
The
principal activity of the company is that of helicopter lessor.
Head
Office & Chief Executive Office (Registered Office)
North
Denes Airfield, Caister Road, Caister on Sea, Great Xxxxxxxx, Xxxxxxx, Xxxxxxx,
XX00 0XX
Capital
Stock Owned
None
-
168
-
Location
of Property
Not
applicable.
INTEGRA
LEASING AS
Corporate
History
Incorporated
under the laws of Norway on 30 November 1992
Limited
company
Organization
number 966 705 175
Shareholders
Vinland
Holding AS - 100 shares, each with nominal value of NOK
1000
Nature
of Business
Used
for international leasing of certain Aircraft owned by CHII or CHB
Head
Office and Chief Executive Office
x/x
Xxxxxxxxx Xxxxxxx & Xxxx
Xxxx,
Xxxxxx
Capital
Stock Owned
None
Location
of Property
Not
applicable; no tangible property
XXXXX
XXXX XXXXXX HELICOPTERS PTY LTD.
Corporate
History
Incorporated
on 15 December 1981. The company was originally called Bass Strait
Helicopters Pty Ltd and changed its name on 8 January 1982 to its current
name. The Memorandum and Articles of Association were replaced and a
new set of standard Memorandum and Articles of Association adopted on 25
February 1998. The Constitution was amended on 30 January
2004.
Shareholders
Xxxxx
Helicopter Services Pty Ltd. - 2 ordinary fully paid shares.
The
share capital of the company is $100,000 divided into 100,000 shares of $1.00
each.
Nature
of Business
Carried
on operations before 1993. Now holding company.
-
169
-
Head
Office and Chief Executive Office
00
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital
Stock Owned
Owns
100% of shares of Xxxxx Helicopters International Pty Ltd. and The Australian
Helicopters Trust. Owns 33-1/3 % of Xxxxx Off-Shore Helicopters Pty
Ltd.
Location
of Property
Not
applicable; holding company
XXXXX
HELICOPTER SERVICES LIMITED (Company Number SC181461)
Corporate
History
Incorporated
under the laws of Scotland on 12 December 1997.
Shareholders
Helicopter
Services Group AS owns 100% of:
|
Issued
share capital:
|
Aus$40,000,000
|
|
|
Nominal
share capital:
|
Aus$40,000,000
divided into 30,000,000 Ordinary Shares of Aus. $1 each and
10,000,000 Redeemable Ordinary shares of Aus. $1
each.
|
Nature
of Business
Acts
as the UK holding company for HSG's Australian operations. It does
not otherwise trade.
Head
Office and Chief Executive Office (Registered
Office)
XXX
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx, Dyce, Aberdeen, AB21
0GL
Capital
Stock Owned
Owns
100% of issued share capital of Management Aviation
Limited.
Location
of Property
Not
applicable; holding company
-
170
-
XXXXX
HELICOPTER SERVICES PTY LTD.
Corporate
History
Incorporated
on 10 December 1992. The company was originally called Marcuto Pty
Ltd. and changed its name on 12 July 1996 to its current name. The
Constitution was amended on 29 January 2004.
Shareholders
Management
Aviation Ltd. owns 100% of 54,800,000 ordinary fully paid shares.
Nature
of Business
Holding
company for the Xxxxx Helicopter group
Head
Office and Chief Executive Office
00
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital
Stock Owned
Owns
100% of shares of Xxxxx Xxxx Strait Helicopters Pty Ltd. and Xxxxx Helicopters
Pty Ltd., and 66-2/3 % of the shares of Xxxxx Off-Shore Helicopters Pty.
Ltd.
Location
of Property
Own
property in Adelaide, South Australia
XXXXX
HELICOPTERS INTERNATIONAL PTY LTD.
Corporate
History
Incorporated
on 26 March 1990. The company was originally called Xxxxxxx Pty Ltd.
and changed its name on 13 July 1990 to its current name. The
Memorandum and Articles of Association of the Company were replaced and a
new
Constitution was adopted on 21 April 1999. The Constitution was
amended on 30 January 2004.
Shareholders
Xxxxx
Xxxx Xxxxxx Helicopters Pty Ltd. - 2 ordinary fully paid shares.
The
share capital of the company is $1,000,000 divided into 1,000,000 shares
of
$1.00 each.
Nature
of Business
This
company is used for international contracts. It is also the Xxxxx
party to the off-shore joint venture arrangements.
-
171
-
Head
Office and Chief Executive Office
00
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital
Stock Owned
None
Location
of Property
See
Fleet List for location of aircraft.
XXXXX
HELICOPTERS PTY LTD.
Corporate
History
Incorporated
on 22 February 1980. The Constitution was amended on 30 January
2004.
Shareholders
Xxxxx
Helicopter Services Pty Ltd - 1,000 A Class shares.
Nature
of Business
Corporate
/ management support company for the Xxxxx Helicopter group. Costs
are passed on to operating companies. The company is registered as
the employer for the purposes of payment of group employment and payroll
taxes
Head
Office and Chief Executive Office
00
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital
Stock Owned
None
Location
of Property
Lease
property located in/at Adelaide, Richmond, Karratha Airport, Xxxxxxx, Renmark
Airfield and Canberra Airport.
See
Fleet List for location of aircraft.
XXXXX
OFF-SHORE HELICOPTERS PTY LTD.
Corporate
History
Incorporated
on 27 October 1981. The Constitution was amended on 30 January
2004.
-
172
-
Shareholders
Xxxxx
Xxxx Strait Helicopters Pty Ltd - one ordinary fully paid share
Xxxxx
Helicopter Services Pty. Ltd. - two ordinary fully paid shares.
The
share capital of the company is $100,000 divided into 100,000 shares of $1.00
each.
Nature
of Business
This
company is the contract holder / operator for all of the group's Australian
contracts and operations. It owns the majority of the group's
helicopters.
Head
Office and Chief Executive Office
00
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital
Stock Owned
None
Location
of Property
See
Fleet List for location of
aircraft.
LUCHTVAARTMAATSCHAPPIJ
XXXXXXXXX AIRWAYS B.V.
Corporate
History
Established
under the laws of The Netherlands on 2 December 1972. Registered
under the Chamber of Commerce & Industries of Amsterdam.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 200 shares of NLG 1,000 each
Nature
of Business
Conducting
aviation operations (outside Europe)
Head
Office and Chief Executive Office
Xxxxxxxxxxx
0, 0000 XX Xxxxxxxxx, Xxx
Xxxxxxxxxxx
Capital
Stock Owned
|
Aerocoop
B.V. Rotterdam
|
(100%)
|
|
|
Xxxxxxxxx
Airways Panama S.A.
|
(100%)
|
|
|
Xxxxxxxxx
Airways Panama Operating S.A.
|
(100%)
|
|
|
Aero
Contractors Services Philippines Inc.
|
(30%)
|
-
173
-
Location
of Property
Not
applicable
MANAGEMENT
AVIATION LIMITED (Company Number 872372)
Corporate
History
Incorporated
under the laws of England and Wales on 25 February 1966 under the name Bond
Helicopters Limited. Name changed to Management Aviation Limited on 1
October 1984.
Shareholders
Xxxxx
Helicopter Services Limited owns 100% of:
|
Issued
share capital:
|
25,651,354
Ordinary shares of ₤1.00 each
|
|
Nominal
share capital:
|
25,651,354
pounds divided into 25,651,354 Ordinary shares of 1 pound
each.
|
Nature
of Business
Holding
company. Its purpose is also to protect the name “Management Aviation
Limited”.
Head
Office and Chief Executive Office (Registered
Office)
North
Denes Airfield
Caister
Road
Caister
On Sea
Great
Xxxxxxxx XX00
0XX
Xxxxxxx
Capital
Stock Owned
Owns
100% of shares of Xxxxx Helicopter Services Pty Ltd.
Location
of Property
Not
applicable; holding company
-
174
-
MULTIFABS
SURVIVAL LIMITED (Company Number SC188500)
Corporate
History
Incorporated
under the laws of Scotland on 13 August 1998 under the name Ledge 412
Limited. Name changed to Multifabs Holdings Limited on 21 December
1998 and then to Multifabs Survival Limited on 26 February 1999.
Shareholders
Brintel
Holdings Limited - 854,000 Ordinary shares of ₤1 each
Nature
of Business
Manufacturing,
sale, rental and maintenance of off-shore survival suits.
Head
Office and Chief Executive Office (Registered
Office)
XXX
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx, Dyce, Aberdeen, AB21
0GL.
Capital
Stock Owned
Own
100% of Kirkhill (Dormant) Limited and Multifabs Survival Inc. (both dormant
companies)
Location
of Property
Lease
offices and units in Aberdeen, Peterhead, North Denes, North Lincolnshire
and
Blackpool.
NORTH
DENES AERODOME LTD. (Company Number 555902)
Corporate
History
Incorporated
under the laws of England and Wales on 13 October 1955. Its previous
name was Anglian Air Charter Limited which changed on 7 January
1971.
Shareholders
CHC
Scotia Limited owns 100% of:
|
Issued
share capital:
|
798
Ordinary Shares of 1 pound each
|
|
Nominal
share capital:
|
1,000
pounds divided into 1,000 Ordinary Shares of 1 pound
each.
|
-
175
-
Nature
of Business
The
Company owns and operates the airfield at North Denes, Great
Yarmouth. It also owns a number of aircraft that are operated by CHC
Scotia Limited.
Head
Office and Chief Executive Office (Registered
Office)
|
North
Denes Airfield
|
|
|
Caister
Road
|
|
|
Caister
On Sea
|
|
|
Great
Yarmouth
|
NR30
5TF
|
Capital
Stock Owned
None
Location
of Property
Lease
at North Denes Airfield.
See
Fleet List for locations of aircraft.
SCANCOPTER
AS
Corporate
History
Established
under the laws of Norway on 4 April 1994. Its organization number is
970 923 829.
Shareholders
CHC
Helikopter Service AS owns 1000 shares of NOK 1000 each. Share
capital NOK 1,000,000.
Nature
of Business
The
objects of the Company are to carry on a trade and agency business within
aviation and other related industries, together with related businesses,
including participating in other enterprises with equivalent
activities.
The
main operations of Scancopter are trade and agency activities within aircraft
and other related industries.
Head
Office and Chief Executive Office
Bærum,
Norway.
Capital
Stock Owned
None
-
176
-
Location
of Property
Leases
property at
Fornebu.
XXXXXXXXX
AIR TARGET SERVICES B.V.
Corporate
History
Established
under the law of the Netherlands on August 16, 1991. Registered under
the Chamber of Commerce & Industries for Noordwest-Holland.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 40 shares of NLG 1,000 each
Nature
of Business
Conducting
target operations for the Dutch Ministry of Defence until the end of
2004.
Head
Office and Chief Executive Office
Xxxxxxx
00, 0000XX
Xxxxxxxxxxx
Xxxxxxx
Xxxxx Owned
None
Location
of Property
Use
of property of the Dutch Ministry of Defence during the contract period until
the end of 2004.
XXXXXXXXX
AIRCRAFT MAINTENANCE B.V.
Corporate
History
Established
under the laws of the Netherlands on 29 September 1987. Registered
under the Chamber of Commerce & Industries for Zuid-Limburg.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 400 shares of NLG 1,000 each
Nature
of Business
Maintenance
of fixed wing aircraft
Head
Office and Chief Executive Office
Xxxxxxxxxx
00, 0000XX
Xxxxxxxxxx-Xxxxxxx
-
177
-
Capital
Stock Owned
None
Location
of Property
Long
lease of land at Xxxxxxxxxx 00,
Xxxxxxxxxx Airport. Owns the building at this land.
XXXXXXXXX
CANADA LIMITED
Corporate
History
Established
under the laws of Ontario on May 19, 1999.
SALE
OF COMPANY TO COMPLETE BY DECEMBER 24, 2004
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V.
Nature
of Business
Manufacture
of military targets
Head
Office and Chief Executive Office
Medicine
Hat, Alberta
Capital
Stock Owned
None
Location
of Property
Medicine
Hat, Alberta
(leased)
XXXXXXXXX
LUCHTVAART GROEP B.V.
Corporate
History
Established
under the laws of The Netherlands on 17 October 1952. Registered
under the Chamber of Commerce & Industries of Amsterdam.
Shareholders
100%
owned by CHC Netherlands BV -
6,919,511 shares of NLG 1 each
Nature
of Business
Holding
company
-
178
-
Head
Office and Chief Executive Office
Xxxxxxxxxxx
0, 0000 XX
Xxxxxxxxx
Xxxxxxx
Xxxxx Owned
|
Handelsmaatschappij
Xxxxxxxxx & Co. B.V.
|
(100%)
|
|
|
Xxxxxxxxx
Canada Limited
|
(100%)
|
|
|
Xxxxxxxxx
Air Target Services B.V.
|
(100%)
|
|
|
Luchtvaartmaatschappij
Xxxxxxxxx Airways B.V.
|
(100%)
|
|
|
Xxxxxxxxx
NorthSea Helicopters B.V.
|
(100%)
|
|
|
Xxxxxxxxx
Aircraft Maintenance B.V.
|
(100%)
|
|
|
Xxxxxxxxx
Tchad S.A.
|
(100%)
|
|
|
Xxxxxxxxx
Onroerend Goed B.V.
|
(100%)
|
|
|
Capital
Aviation Services B.V.
|
(100%)
|
|
|
Xxxxxxxxx
Components B.V.
|
(100%)
|
|
|
Xxxxxxxxx
Delta Consult EEVS (membership)
|
(100%)
|
|
|
Xxxxxxxxx
Aircraft Trading Company B.V.
|
(100%)
|
|
|
Lesotho
Air Transport Services (Proprietary) Ltd.
|
(100%)
|
|
|
Xxxxxxxxx
Airways Belgium N.V.
|
(100%)
|
|
|
Aviation
Trading and Constructing A.G.
|
(100%)
|
|
|
Xxxxxxxxx
NorthSea Helicopters C.V.
|
(99%)
|
|
|
Xxxxxxxxx
Airtax Argentina S.A.
|
(49%)
|
|
|
Aerocontractors
Company of Nigeria Ltd.
|
(40%)
|
|
|
Xxxxxxxxx
Airways Cameroun S.A.
|
(50%)
|
|
|
INAER
S.A.
|
(38%)
|
|
|
Servicio
Aero Litoral Ltda.
|
(30%)
|
|
|
Nigeravia
S.A.
|
(8.1%)
|
Location
of Property
Not
applicable
XXXXXXXXX
NORTHSEA HELICOPTERS B.V.
Corporate
History
Established
under the laws of the Netherlands on 10 December 1965. Registered at
the Chamber of Commerce and Industries of Noordwest - Holland.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 200 shares of NLG 1,000 each
Nature
of Business
Conducting
flying operations in Dutch part of the Northsea.
-
179
-
Head
Office and Chief Executive Office
Xxxxxxxxxxxxx
00, 0000XX Xxx
Helder
Capital
Stock Owned
Owns
100% of Xxxxxxxxx NorthSea Helicopters UK Ltd. Will own 50% of
Luchthaven Den Helder C.V. (before the end of 2004 the assets of Xxxxxxxxx
Northsea Helicopters CV (owner of 50% of Luchthaven Den Helder CV) will be
brought into Xxxxxxxxx Northsea Helicopters BV).
Location
of Property
Xxxxxxxxxxxxx
00, 0000XX Xxx
Xxxxxx
XXXXXXXXX
NORTHSEA HELICOPTERS C.V.
Corporate
History
Limited
partnership established under the laws of the Netherlands on 1 November
1991.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V.
Nature
of Business
Holding
company
Head
Office and Chief Executive Office
Xxxxxxxxxxxxx
00, 0000XX Xxx
Helder
Capital
Stock Owned
None
Location
of Property
Not
applicable.
-
180
-
XXXXXXXXX
ONROEREND GOED B.V.
Corporate
History
Established
under the laws of The Netherlands on 11 September 1996. Registered
under the Chamber of Commerce & Industries of Amsterdam.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 400 shares of NLG 100 each
Nature
of Business
Owns
the office building at Hoofddorp.
Head
Office and Chief Executive Office
Xxxxxxxxxxx
0, 0000XX
Xxxxxxxxx
Capital
Stock Owned
None
Location
of Property
Xxxxxxxxxxx
0, 0000 XX Xxxxxxxxx
(ownership).
XXXXXXXXX
TCHAD S.A.
Corporate
History
Established
under the laws of Tchad on 28 October 1999.
Shareholders
100%
owned by Xxxxxxxxx Luchtvaart
Groep B.V. - 8,625 shares of X.XXX 100,000 each
Nature
of Business
Conducting
aviation operations in Tchad.
Head
Office and Chief Executive Office
Xxx
xx Xxxxxxxx, XX xx 0000,
N’Djamena
Capital
Stock Owned
None
-
181
-
Location
of Property
Office
building and hangar/workshop facilities in N’Djamena (leased). Eight
bedroom staff houses in N’Djamena (leased).
VIKING
HELICOPTERS LIMITED
Corporate
History
Incorporated
on 6 January 1969 under the laws of Canada as Viking Helicopters
Limited. By amendment effective on 1 February 1984, it adopted the
French equivalent name Helicopteres Viking Limitee.
Shareholders
CHC
Helicopter Corporation - 6,600,000 common shares
Nature
of Business
Holding
company.
Head
Office
St.
John's, Newfoundland and Labrador
Chief
Executive Xxxxxx
0000
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxx
Xxxxxxxx
Capital
Stock Owned
Owns
Class A shares of CHC Helicopters International Inc.
Location
of Property
Not
applicable; holding company
VINLAND
DENMARK A/S
Corporate
History
Incorporated
under the laws of Denmark on 8 July 1998 as a public limited company
(aktieselskab).
Company
Registration No. (CVR) 21023949.
Shareholders
Brintel
Helicopters Limited - total share capital of DKK 1,000,000
-
182
-
Nature
of Business
Holding
company
Head
Office and Chief Executive Office
Xxxx
Xxxxxxxxxx 00, 0000 Xxxxxxx, Xxxxxxx
Capital
Stock Owned
Owns
all of Vinland Holding AS and CHC Denmark ApS
Location
of Property
Not
applicable; holding company
VINLAND
HOLDING AS
Corporate
History
Incorporated
under the laws of Norway on 5 March 1999 under the name Vinland Helicopters
AS
as a limited company. Name change 26 June 2003 to Vinland Holding
AS
Organization
# 980 593 126.
Shareholders
Vinland
Denmark A/S - 22,350,000 shares with par value of NOK 10 per share
Nature
of Business
Acquisition
and holding company for Helicopter Services Group AS
Head
Office and Chief Executive Office
x/x
Xxxxxxxxx Xxxxxxx & Xxxx
Xxxx,
Xxxxxx
Capital
Stock Owned
Owns
100% of shares of Helicopter Services Group AS and Integra Leasing
AS
Location
of Property
Not
applicable; holding company
-
183
-
WHIRLY
BIRD SERVICES LIMITED (Company Number SC061453)
Corporate
History
Incorporated
under the laws of Scotland
on 6 January 1977.
Shareholders
Brintel
Holdings Limited - 2,133 Ordinary Shares of ₤1.00 each
Nature
of Business
Sale,
rental and maintenance of off-shore survival suits.
Head
Office and Chief Executive Office (Registered
Office)
XXX
Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx Xxxxxx, Dyce, Aberdeen, AB21
0GL.
Capital
Stock Owned
Owns
50% of Whirly Bird Airport Services Limited - 1 Share
Location
of Property
Own
office in Aberdeen. Lease offices in Italy and
Kazakhstan.
-
184
-
SCHEDULE
G
OTHER
SECURED OBLIGATIONS
[see
reference in Section 6.2]
1. Debts,
liabilities and obligations of Obligors to BNS under or in connection with
corporate Visa cards issued by BNS to Obligors from time to time, up to a
maximum principal amount outstanding of $250,000. For the purposes of
Section 6.4.1, the credit exposure is agreed to be the principal amount
outstanding at the time of determination of the credit exposure.
2. Debts,
liabilities and obligations of Obligors to BNS under or in connection with
wire
transfers made by BNS at the request of Obligors, up to a maximum amount of
$10,000,000 per day. For the purposes of Section 6.4.1, the credit
exposure is agreed to be nil unless the Obligors' funds transferred by BNS
are
subsequently determined not to be available from deposits or Advances, in which
case the credit exposure is agreed to be the principal amount owing to BNS
at
the time of determination of the credit exposure.
3. Debts,
liabilities and obligations of Obligors to BNS under or in connection with
mirror netting and other money managements service arrangements established
by
BNS from time to time. For the purposes of Section 6.4.1, the credit
exposure is agreed to be nil unless funds made available to Obligors by BNS
through such arrangements are subsequently determined not to be available from
deposits or Advances, in which case the credit exposure is agreed to be the
principal amount owing to BNS at the time of determination of the credit
exposure.
4. Reimbursement
obligations of CHII in connection with a SAR 2,000,000 letter of credit issued
by BNS in favour of Gulf Bank KSC, Kuwait in connection with a contract to
transport employees of the Arabian Oil Company Limited, as amended,
supplemented, restated and replaced from time to time.
5. The
obligations of CHC under or in connection with BNS swap transaction reference
number X09862 in the notional amount of GBP 55,000,000, trade date 28 April
2004, termination date 28 April 2006.
6. The
obligations of CHC under or in connection with BNS swap transaction reference
number X09864 in the notional amount of EUR 25,000,000, trade date 28 April
2004, termination date 28 April 2006.
7. The
obligations of CHC under or in connection with BNS FX Forward transactions
dated
19 May 2004 in the total notional amount of USD 53,446,937, maturity dates
monthly from 31 December 2004 to 30 September 2007.
8. The
obligations of CHC under or in connection with National Bank FX Forward
transactions of various dates before 22 December 2004 in the total notional
amounts of GBP 75,609,140 and USD 13,840,696, maturity dates monthly from 31
December 2004 to 30 September 2007.
-
185
-
By
signing this Agreement, CHC unconditionally guarantees payment and performance
by each Obligor of all of its present and future debts, liabilities and
obligations described above and each other Obligor that has guaranteed the
debts, liabilities and obligations of CHC acknowledges that its guarantee
extends to CHC's obligations as guarantor.
-
186
-
SCHEDULE
H
BORROWING
BASE CALCULATION
[see
reference in Section 1.1.24]
The
"Borrowing Base" is the aggregate of item 14 minus item 17
minus item 21 below. The component items leading to the calculation
are the following:
Accounts
Receivable
|
1.
|
the
aggregate amount of the entries that would, in accordance with GAAP,
be
classified on a consolidated balance sheet as trade accounts receivable
of
CHC
|
|
2.
|
the
amount included in item 1 above that has been outstanding for
over 90 days
|
|
3.
|
the
amount included in item 1 above that is not subject to a
perfected security interest forming part of the Security, that is
subject
to any Encumbrance other than a Permitted Encumbrance that does not
rank
prior to or pari passu with the Security, or that is subject to
garnishment, execution, attachment or similar
process [Note: accounts receivable for which
Security would need to be given under Danish law must be deducted,
as
Danish law does not provide an effective means of obtaining
security]
|
|
4.
|
the
amount included in item 1 above that is subject to any
reasonable claim for credit, set-off, allowance, adjustment, counterclaim
or partial discharge (but only to the extent of the adverse claim
thereon
known to the officers of CHC signing the Reporting Certificate, after
reasonable inquiry)
|
|
5.
|
the
amount included in item 1 above that is not owed to an Obligor
and payable in a Primary Operating
Jurisdiction
|
|
6.
|
the
amount of item 1 above less the aggregate (without duplication)
of the amounts for items 2 through 5
above
|
Inventory
|
7.
|
the
aggregate amount of the entries that would, in accordance with GAAP,
be
classified on a consolidated balance sheet as inventory of CHC valued
at
the lower of cost or fair market
value
|
|
8.
|
the
amount included in item 7 above that represents obsolete
inventory
|
|
9.
|
the
amount included in item 7 above that is not subject to a perfected
security interest forming part of the Security, that is subject to
any
Encumbrance other than a Permitted Encumbrance that does not rank
prior to
or pari passu with the Security, or that is subject to
garnishment, execution, attachment or similar
process [Note: inventory for which Security
would need to be given under Danish law must be deducted, as Danish
law
does not provide an effective means of obtaining
security]
|
-
187
-
|
10.
|
the
amount included in item 7 above that represents inventory located
outside
of a Primary Operating Jurisdiction
|
|
11.
|
the
amount of item 7 above less the aggregate (without duplication) of
the
amounts for items 8, 9 and 10 above
|
Aircraft
|
12.
|
the
aggregate of the most recent appraised fair market values of the
Aircraft
owned by Obligors (as opposed to Aircraft under Lease from persons
other
than Obligors) that are located in and operated from a Primary Operating
Jurisdiction, have registered first-ranking mortgages in place as
part of
the Security in the Primary Operating Jurisdiction in which they
are
located and are not subject to any lease that has priority over the
mortgage (all as described on Appendix A attached to the Reporting
Certificate)
|
Cash
Pledged
|
13.
|
the
amount of cash of Obligors deposited with a Lender and subject to
an
express first-ranking pledge in favour of the Agent as part of the
Security (as detailed on Appendix G attached to the Reporting
Certificate)
|
Calculation
of Borrowing Base and Compliance
|
14.
|
the
aggregate of (item 6 X 0.75) + (item 11 X 0.50) +
(item 12 X 0.75) +
(item 13)
|
|
15.
|
the
amount of item 14 attributable to Property of Obligors incorporated
in
Norway
|
|
16.
|
the
principal balance of the Restricted Intercompany
Obligations
|
|
17.
|
the
amount, if any, by which item 15 exceeds item
16
|
|
18.
|
the
amount of item 14 attributable to Property of Xxxxxxxxx and its
Subsidiaries
|
|
19.
|
the
aggregate of (a) the principal amount of all Advances outstanding,
(b) the
absolute value of the aggregate Market Value of all Swaps that are
Other
Secured Obligations and that have a negative Market Value from the
Obligors' perspective after offsetting the Market Value of Swaps
with the
same or another Lender that are Other Secured Obligations and that
have a
positive Market Value and (c) the amount representing the exposure
in
respect of Other Secured Obligations that are not
Swaps
|
|
20.
|
the
principal amount of Advances outstanding under Xxxxxxx 0 xxx Xxxxxxx
0
|
-
000
-
|
00.
|
The
amount, if any, by which item 18 exceeds the aggregate of item 19
minus
item 20
|
-
189
-
SCHEDULE
I
LOCATIONS
OF AIRCRAFT
[see
reference in Section 9.1.5(b)]
[See
attached]
-
190
-
|
USD
|
|||||||||||
|
Appraisal
|
|||||||||||
|
A/C
Type
|
Size
|
Status
|
Owner
|
Oper
Div
|
Call
Sign
|
Yr
Mfg
|
S/N
|
Country
|
Security
|
Jurisdiction
|
April
2004
|
|
AS332L
|
Heavy
|
Owned
|
CHC
Barbados
|
Scotia
|
G-TIGZ
|
1984
|
2115
|
UK
|
Unsecured
|
Primary
Non-Nordic
|
7,350,000
|
|
AS332L
|
Heavy
|
Owned
|
Scotia
|
Scotia
|
X-XXXX/
XX-XXX
|
0000
|
0000
|
Xxxxxxx
|
Unsecured
|
Primary
Nordic
|
6,920,000
|
|
AS332L
|
Heavy
|
Owned
|
CHC
Helicopters Intl
Inc
|
Scotia
|
X-XXXX/
XX-XXX
|
0000
|
0000
|
Xxxxxxx
|
Secured
|
Primary
Nordic
|
6,140,000
|
|
AS332L
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OLA/
C-GVCH
|
1983
|
2074
|
Canada
|
Secured
|
Primary
Non-Nordic
|
6,690,000
|
|
AS332L
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OLB
|
1983
|
2082
|
Norway
|
Secured
|
Primary
Nordic
|
6,960,000
|
|
AS332L
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OLD
|
1984
|
2103
|
Norway
|
Secured
|
Primary
Nordic
|
7,070,000
|
|
AS332L
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OLF/
C-GOCH
|
1985
|
2139
|
Canada
|
Secured
|
Primary
Non-Nordic
|
6,900,000
|
|
AS332L
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OMD/
C-GTCH
|
1983
|
2048
|
Canada
|
Secured
|
Primary
Non-Nordic
|
6,690,000
|
|
AS332L
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OME/
LN-OAW
|
1983
|
2053
|
Norway
|
Secured
|
Primary
Nordic
|
7,400,000
|
|
AS332L
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
Secured
|
Primary
Nordic
|
6,870,000
|
|
AS332L
|
Heavy
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-BKZE
|
1983
|
2102
|
UK
|
7,110,000
|
||
|
AS332L
|
Heavy
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-BKZG
|
1983
|
2106
|
UK
|
6,510,000
|
||
|
AS332L
|
Heavy
|
Owned
|
Scotia
|
Australia
|
VH-LHK/G-BKZH
|
1983
|
2107
|
Australia
|
Unsecured
|
Primary
Non-Nordic
|
6,150,000
|
|
AS332L
|
Heavy
|
Owned
|
North
Denes Aerodrome
Limited
|
Scotia
|
G-PUMG
|
1980
|
2018
|
UK
|
Secured
|
Primary
Non-Nordic
|
6,750,000
|
|
AS332L
|
Heavy
|
Owned
|
Scotia
|
Scotia
|
LN-ODA
/
G-PUML
|
1983
|
2073
|
UK
|
Secured
|
Primary
Non-Nordic
|
6,460,000
|
|
AS332L
|
Heavy
|
Owned
|
Scotia
|
HS
AS
|
LN-OMF
/
G-PUMK
|
1983
|
2067
|
Norway
|
Unsecured
|
Primary
Nordic
|
6,740,000
|
|
AS332L
|
Heavy
|
Owned
|
Scotia
|
Scotia
|
OY-HEO
/
G-CHCA
|
1981
|
2007
|
Denmark
|
Unsecured
|
Primary
Nordic
|
7,530,000
|
|
AS332L
|
Heavy
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX/X-XXXX
|
0000
|
0000
|
Xxxxxxxxx
|
Unsecured
|
Primary
Non-Nordic
|
6,130,000
|
|
AS332L1
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
Australia
|
LN-OBR
/
VH-LHG
|
1990
|
2317
|
East
Timor
|
Secured
|
Non-primary
|
8,690,000
|
|
AS332L1
|
Heavy
|
Owned
|
Scotia
|
Australia
|
LN-OBT
/
VH-LAF
|
1990
|
2319
|
Australia
|
Unsecured
|
Primary
Non-Nordic
|
8,430,000
|
|
AS332L1
|
Heavy
|
Owned
|
Scotia
|
Australia
|
LN-OBU
/
VH-LAG
|
1991
|
2352
|
East
Timor
|
Unsecured
|
Non-primary
|
9,280,000
|
|
AS332L2
|
Heavy
|
Owned
|
CHC
Mauritius
|
Africa
|
D2-EVP
|
1993
|
2398
|
Angola
|
Unsecured
|
Non-primary
|
10,350,000
|
|
AS350BA
|
Light
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
0000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
625,000
|
|
AS355F1
|
Light
|
Owned
|
CHC
Helicopters Intl
Inc
|
Corporate
|
C-GTLC
|
1981
|
5097
|
Canada
|
Secured
|
Primary
Non-Nordic
|
519,500
|
|
AS365C-1
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
0000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
774,000
|
|
AS365C-1
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
0000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
533,000
|
|
AS365N2
|
Medium
|
Owned
|
Xxxxxxxx
|
XX
XX
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
Secured
|
Primary
Nordic
|
3,178,000
|
|
AS365N2
|
Medium
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-BTEU
|
1990
|
6392
|
UK
|
4,393,500
|
||
|
AS365N2
|
Medium
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-BTNC
|
1991
|
6409
|
UK
|
4,463,000
|
||
|
AS365N2
|
Medium
|
Owned
|
Scotia
|
Heliwest
|
G-BTUX
|
1991
|
6424
|
Sweden
|
Unsecured
|
Primary
Non-Nordic
|
3,029,000
|
|
AS365N2
|
Medium
|
Owned
|
Scotia
|
HS
AS
|
LN-ODB
/
G-NTWO
|
1990
|
6358
|
Norway
|
Secured
|
Primary
Nordic
|
2,478,000
|
|
Xxxx
206B111
|
Light
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
0000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
310,000
|
|
Xxxx
206B111
|
Light
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
0000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
305,000
|
|
Xxxx
206L-1
|
Light
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
544,500
|
|
Xxxx
206L-1
|
Light
|
Owned
|
The
Australian Helicopters
Trust
|
Australia
|
VH-HHS
|
1980
|
45404
|
Australia
|
Secured
|
Primary
Non-Nordic
|
561,000
|
|
Xxxx
206L-3
|
Light
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RDI
|
1980
|
00000
|
Xxxxx
Xxxxxx
|
Secured
|
Primary
Non-Nordic
|
773,000
|
|
Xxxx
206L-3
|
Light
|
Owned
|
The
Australian Helicopters
Trust
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
746,500
|
|
Xxxx
212
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
International
|
HC-CDD/
C-FRWM/
VH-LAM
|
1977
|
00000
|
Xxxxxxx
|
Unsecured
|
Non-primary
|
1,692,000
|
|
Xxxx
212
|
Medium
|
Owned
|
Xxxxx
Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
1,894,000
|
|
Xxxx
212
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RNP/C-FPKW
|
1978
|
00000
|
Xxxxx
Xxxxxx
|
Unsecured
|
Primary
Non-Nordic
|
2,027,500
|
|
Xxxx
212
|
Medium
|
Owned
|
CHII
-
International
|
International
|
C-FRUT
|
1978
|
00000
|
Xxxxxxx
|
Unsecured
|
Non-primary
|
2,147,000
|
|
Xxxx
212
|
Medium
|
Owned
|
CHII
-
International
|
International
|
EP-HCH/
C-FRWF
|
1978
|
30894
|
Iran
|
Unsecured
|
Non-primary
|
2,064,000
|
|
Xxxx
212
|
Medium
|
Owned
|
CHII
-
International
|
International
|
C-FRWI
|
1975
|
30672
|
Georgia
|
Unsecured
|
Non-primary
|
2,030,000
|
|
Xxxx
212
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RNR/C-FRWL
|
1978
|
30829
|
Sudan
|
Unsecured
|
Non-primary
|
1,868,000
|
|
Xxxx
212
|
Medium
|
Owned
|
CHII
-
International
|
International
|
HC-CEF/
C-GBPH
|
1974
|
00000
|
Xxxxxxx
|
Unsecured
|
Non-primary
|
2,173,000
|
|
Xxxx
214ST
|
Medium
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
XX-XXX
|
0000
|
00000
|
Xxxxxx
|
Secured
|
Primary
Nordic
|
2,868,000
|
|
Xxxx
412
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,121,000
|
|
Xxxx
412
|
Medium
|
Owned
|
4083423
Canada
Inc
|
International
|
XX-XXX
|
0000
|
00000
|
Xxxxx
|
Unsecured
|
Non-primary
|
3,935,000
|
|
Xxxx
412
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
1,983,000
|
|
Xxxx
412
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,056,500
|
|
Xxxx
412
|
Medium
|
Owned
|
Xxxxx
Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,126,500
|
|
Xxxx
412
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,086,000
|
|
Xxxx
412EP
|
Medium
|
Leased
|
Capital
Bank
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
6,543,000
|
-
191
-
|
USD
|
|||||||||||
|
Appraisal
|
|||||||||||
|
A/C
Type
|
Size
|
Status
|
Owner
|
Oper
Div
|
Call
Sign
|
Yr
Mfg
|
S/N
|
Country
|
Security
|
Jurisdiction
|
April
2004
|
|
Convair
580
|
Fixed
Wing
|
Owned
|
CHC
Africa
|
Africa
|
ZS-KEI
|
1953
|
000
|
Xxxxx
Xxxxxx
|
Secured
|
Primary
Non-Nordic
|
360,000
|
|
Convair
580
|
Fixed
Wing
|
Owned
|
CHC
Africa
|
Africa
|
ZS-LYL
|
1952
|
000
|
Xxxxx
Xxxxxx
|
Secured
|
Primary
Non-Nordic
|
110,000
|
|
S61N
|
Heavy
|
Owned
|
CHC
Africa
|
Africa
|
ZS-HSZ
|
1970
|
61473
|
Ivory
Coast
|
Secured
|
Non-primary
|
2,662,500
|
|
S61N
|
Heavy
|
Owned
|
CHC
Africa
|
Africa
|
ZS-HVJ
|
1972
|
61493
|
Ivory
Coast
|
Secured
|
Non-primary
|
2,000,000
|
|
S61N
|
Heavy
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RDV
|
1974
|
00000
|
Xxxxx
Xxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,516,000
|
|
S61N
|
Heavy
|
Owned
|
XXX
Xxxxxxxx
|
Xxxxxxxxxxxxx
|
XX-XXX/
X-XXXX
|
0000
|
00000
|
Xxxxxxxx
|
Unsecured
|
Non-primary
|
2,105,000
|
|
S61N
|
Heavy
|
Owned
|
CHII
-
International
|
International
|
C-FOKP
|
1965
|
61297
|
Canada
|
Secured
|
Primary
Non-Nordic
|
2,188,000
|
|
S61N
|
Heavy
|
Owned
|
CHII
-
International
|
International
|
HS-HTA/
C-GOLH
|
1978
|
00000
|
Xxxxxxxx
|
Unsecured
|
Non-primary
|
2,310,000
|
|
S61N
|
Heavy
|
Owned
|
CHII
-
International
|
International
|
C-GSAB/
G-BSVO
|
1980
|
61823
|
Canada
|
Unsecured
|
Primary
Non-Nordic
|
2,266,000
|
|
S61N
|
Heavy
|
Owned
|
CHII
-
International
|
International
|
C-GSBL/
G-BEDI
|
1976
|
61754
|
Azerbaijan
|
Unsecured
|
Non-primary
|
2,472,000
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
Scotia
|
LN-OQB/
EI-RCG
|
1978
|
61807
|
Ireland
|
Unsecured
|
Primary
Non-Nordic
|
2,816,000
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OQM
|
1977
|
61764
|
Norway
|
Secured
|
Primary
Nordic
|
2,966,500
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OQQ
|
1978
|
61814
|
Norway
|
Secured
|
Primary
Nordic
|
2,906,000
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
Scotia
|
LN-OQU/
EI-CXS
|
1978
|
61816
|
Ireland
|
Unsecured
|
Primary
Non-Nordic
|
2,825,000
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-ORC
|
1978
|
61817
|
Norway
|
Secured
|
Primary
Nordic
|
2,751,000
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
HS
AS
|
LN-OSJ
|
1974
|
61715
|
Norway
|
Secured
|
Primary
Nordic
|
2,760,000
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
International
|
LN-OST
|
1974
|
61738
|
Norway
|
Secured
|
Primary
Nordic
|
2,753,000
|
|
S61N
|
Heavy
|
Owned
|
Helikopter
Services
AS
|
Scotia
|
XX-XXX/
XX-XXX
|
0000
|
00000
|
Xxxxxxx
|
Unsecured
|
Primary
Non-Nordic
|
2,683,500
|
|
S61N
|
Heavy
|
Owned
|
Scotia
|
International
|
C-GROV/
YV-1033C/
G-BEIC
|
1965
|
61222
|
Canada
|
Unsecured
|
Primary
Non-Nordic
|
2,449,500
|
|
S61N
|
Heavy
|
Owned
|
Scotia
|
Scotia
|
G-BEJL
|
1964
|
61224
|
UK
|
Secured
|
Primary
Non-Nordic
|
750,000
|
|
S61N
|
Heavy
|
Owned
|
Scotia
|
Africa
|
ZS-RLK
/
X-XXXX
|
0000
|
00000
|
Xxxxx
Xxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,205,500
|
|
S61N
|
Heavy
|
Owned
|
Scotia
|
Africa
|
ZS-RLL
/
G-BFFK
|
1978
|
00000
|
Xxxxx
Xxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,096,000
|
|
S76A
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RGZ
|
1980
|
000000
|
Xxxxxx
|
Unsecured
|
Non-primary
|
1,660,000
|
|
S76A
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RJK
|
1980
|
000000
|
Xxxxxx
|
Unsecured
|
Non-primary
|
1,546,000
|
|
S76A
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-REI/C-GIMK
|
1979
|
760016
|
Eqt.
Guinea
|
Unsecured
|
Non-primary
|
1,670,000
|
|
S76A
|
Medium
|
Owned
|
CHII
-
International
|
International
|
HS-HTQ/
C-GIMQ
|
1980
|
760102
|
Malaysia
|
Unsecured
|
Non-primary
|
1,778,000
|
|
S76A
|
Medium
|
Owned
|
CHC
Africa
|
International
|
ZS-RNT/C-GIMU
|
1980
|
760131
|
Thailand
|
Unsecured
|
Non-primary
|
1,866,500
|
|
S76A+
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RNG/
G-CHCE
|
1980
|
760036
|
Eqt.
Guinea
|
Unsecured
|
Non-primary
|
2,823,000
|
|
S76A+
|
Medium
|
Owned
|
Heliwest
|
International
|
HS-HTR/
C-GIHR
|
1979
|
760032
|
Thailand
|
Unsecured
|
Non-primary
|
2,935,500
|
|
S76A+
|
Medium
|
Owned
|
Heliwest
|
International
|
HS-HTS/
C-GIHS
|
1981
|
760150
|
Thailand
|
Unsecured
|
Non-primary
|
3,104,500
|
|
S76A+
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RPI/G-BHGK
|
1980
|
760049
|
Eqt.
Guinea
|
Unsecured
|
Non-primary
|
3,067,000
|
|
S76A+
|
Medium
|
Owned
|
Scotia
|
Scotia
|
G-BMAL
|
1980
|
760120
|
UK
|
Secured
|
Primary
Non-Nordic
|
2,663,000
|
|
S76A+
|
Medium
|
Owned
|
Scotia
|
Scotia
|
G-DRNT
|
1981
|
760201
|
UK
|
Unsecured
|
Primary
Non-Nordic
|
2,720,000
|
|
S76A+
|
Medium
|
Owned
|
Scotia
|
Scotia
|
OY-HEZ
/
G-CHCD
|
1980
|
760101
|
UK
|
Unsecured
|
Primary
Non-Nordic
|
2,622,500
|
|
S76A+
|
Medium
|
Owned
|
Scotia
|
Scotia
|
OY-HIW/
G-BVCX
|
1981
|
760183
|
Denmark
|
Secured
|
Primary
Nordic
|
2,765,000
|
|
S76A++
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RBE
|
1984
|
760268
|
Angola
|
Unsecured
|
Non-primary
|
3,075,000
|
|
S76A++
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RKO/
VH-LAX
|
1981
|
760135
|
Namibia
|
Unsecured
|
Non-primary
|
3,074,000
|
|
S76A++
|
Medium
|
Owned
|
CHC
Africa
|
Africa
|
ZS-RKP/
VH-LAY
|
1981
|
760198
|
Namibia
|
Unsecured
|
Non-primary
|
2,839,000
|
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Australia
|
VH-HRP
|
1980
|
760122
|
Australia
|
Secured
|
Primary
Non-Nordic
|
3,077,000
|
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
C-GKWT/
B-HZD
|
1990
|
760295
|
Myanmar
|
Unsecured
|
Non-primary
|
2,498,000
|
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
International
|
C-GIHY/
VH-HUC /
RP-C276
|
1979
|
760011
|
Malaysia
|
Unsecured
|
Non-primary
|
2,816,000
|
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
000000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,962,000
|
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
000000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
3,248,500
|
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
International
|
RP-C176/
VH-LAQ
|
1980
|
760112
|
Philippines
|
Unsecured
|
Non-primary
|
3,057,000
|
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
000000
|
Xxxxxxxxx
|
Secured
|
Primary
Non-Nordic
|
2,905,000
|
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Helicopters Pty
Ltd
|
Australia
|
VH-LHZ
|
1980
|
760113
|
Australia
|
Secured
|
Primary
Non-Nordic
|
3,025,000
|
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
HS-HTD/
C-FIHD
|
1984
|
760187
|
Thailand
|
Unsecured
|
Non-primary
|
3,230,000
|
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
C-GIME
|
1978
|
760004
|
Azerbaijan
|
Unsecured
|
Non-primary
|
2,989,000
|
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
C-GIML
|
1979
|
760017
|
Myanmar
|
Unsecured
|
Non-primary
|
3,229,000
|
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
EP-HCS/
C-GKWS
|
1990
|
760297
|
Iran
|
Unsecured
|
Non-primary
|
2,930,000
|
-
192
-
|
USD
|
|||||||||||
|
Appraisal
|
|||||||||||
|
A/C
Type
|
Size
|
Status
|
Owner
|
Oper
Div
|
Call
Sign
|
Yr
Mfg
|
S/N
|
Country
|
Security
|
Jurisdiction
|
April
2004
|
|
S76A++
|
Medium
|
Owned
|
Heliwest
|
Africa
|
ZS-RJS
|
1981
|
760160
|
Angola
|
Unsecured
|
Non-primary
|
2,928,000
|
|
S76C
|
Medium
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-SSSC
|
1993
|
760408
|
UK
|
4,789,000
|
||
|
S76C
|
Medium
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-SSSD
|
1993
|
760415
|
UK
|
4,624,000
|
||
|
S76C
|
Medium
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-SSSE
|
1993
|
760417
|
UK
|
4,643,000
|
||
|
S76C+
|
Medium
|
Leased
|
ANZ
|
International
|
C-FCHC
|
2003
|
760546
|
Thailand
|
6,358,000
|
||
|
S76C+
|
Medium
|
Leased
|
ANZ
|
International
|
C-GHRZ
|
2004
|
760561
|
Thailand
|
6,992,812
|
||
|
S76C+
|
Medium
|
Leased
|
ANZ
|
International
|
X-XXXX
|
0000
|
000000
|
Xxxxx
|
6,383,000
|
||
|
S76C+
|
Medium
|
Owned
|
4083423
Canada
Inc
|
International
|
X-XXXX
|
0000
|
000000
|
Xxxxx
|
Unsecured
|
Non-primary
|
4,857,000
|
|
S76C+
|
Medium
|
Owned
|
CHC
Helicopters Intl
Inc
|
Africa
|
ZS-RRX
|
2004
|
760547
|
Eqt.
Guinea
|
Unsecured
|
Non-primary
|
7,750,000
|
|
S76C+
|
Medium
|
Owned
|
CHC
Helicopters Intl
Inc
|
Africa
|
ZS-RRY
|
2004
|
760548
|
Eqt.
Guinea
|
Unsecured
|
Non-primary
|
7,750,000
|
|
SA365N
|
Medium
|
Owned
|
North
Denes Aerodrome
Limited
|
Scotia
|
EI-MIP
/
G-XXXX
|
1984
|
6119
|
Ireland
|
Unsecured
|
Primary
Non-Nordic
|
1,669,500
|
|
SA365N
|
Medium
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-BKXD
|
1983
|
6088
|
UK
|
1,580,000
|
||
|
SA365N
|
Medium
|
Owned
|
North
Denes Aerodrome
Limited
|
Scotia
|
G-BLEZ
|
1984
|
6131
|
UK
|
Secured
|
Primary
Non-Nordic
|
1,653,000
|
|
SA365N
|
Medium
|
Owned
|
North
Denes Aerodrome
Limited
|
Scotia
|
G-XXXX
|
1985
|
6101
|
UK
|
Secured
|
Primary
Non-Nordic
|
1,527,500
|
|
SA365N
|
Medium
|
Owned
|
Scotia
|
Scotia
|
G-BLUN
|
1985
|
6114
|
UK
|
Secured
|
Primary
Non-Nordic
|
1,663,000
|
|
AS332L
|
Heavy
|
Leased
|
GE
Capital
|
Scotia
|
G-PUMD
|
1983
|
2077
|
UK
|
6,770,000
|
||
|
AS332L
|
Heavy
|
Leased
|
GE
Capital
|
Scotia
|
G-PUME
|
1983
|
2091
|
UK
|
6,210,000
|
||
|
AS332L
|
Heavy
|
Leased
|
ANZ
Banking
Group
|
Scotia
|
X-XXXX/
XX-XXX
|
0000
|
0000
|
Xxxxxxx
|
6,850,000
|
||
|
AS332L
|
Heavy
|
Leased
|
ANZ
Banking
Group
|
Scotia
|
G-BUZD
|
1983
|
2069
|
UK
|
6,990,000
|
||
|
AS332L
|
Heavy
|
Leased
|
ANZ
Banking
Group
|
Scotia
|
G-PUMA
|
1983
|
2038
|
UK
|
6,740,000
|
||
|
AS332L
|
Heavy
|
Leased
|
ANZ
Banking
Group
|
Scotia
|
G-PUMB
|
1983
|
2075
|
UK
|
7,140,000
|
||
|
AS332L1
|
Heavy
|
Leased
|
GE
Capital
|
International
|
LN-OBF
|
1992
|
2381
|
Brazil
|
9,730,000
|
||
|
AS332L1
|
Heavy
|
Leased
|
Nordbanken
|
International
|
9M-STW/
LN-OBQ
|
1990
|
2312
|
Malaysia
|
8,630,000
|
||
|
AS332L1
|
Heavy
|
Leased
|
Westbroker
Finans
AS
|
International
|
LN-OMT
|
1997
|
2468
|
Brazil
|
11,090,000
|
||
|
AS332L1
|
Heavy
|
Leased
|
GE
Capital
|
HS
AS
|
LN-OPH
|
1991
|
2347
|
Norway
|
8,930,000
|
||
|
AS332L1
|
Heavy
|
Leased
|
Capital
Bank
|
International
|
0X-XXX/
XX-XXX
|
0000
|
0000
|
Xxxxxxxx
|
9,790,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
GE
Capital
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
10,290,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
SEB
Finans
Sc
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
10,730,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Nordea
Finans
AS
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
11,800,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Elcon
Finance
|
HS
AS
|
LN-OHE
|
1998
|
2474
|
Norway
|
12,220,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
NIB
Capital
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
11,880,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
South
Service Flight
Co.
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
11,750,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Elcon
Finance
|
Scotia
|
G-XXXX
|
0000
|
0000
|
UK
|
13,960,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Soverign
|
Scotia
|
G-XXXX
|
0000
|
0000
|
UK
|
14,250,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Bank
of
Scotland
|
Scotia
|
G-XXXX
|
0000
|
0000
|
UK
|
14,780,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
GE
Capital
|
International
|
G-PUMM
|
1998
|
2477
|
UK
|
12,790,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Capital
Bank
|
Scotia
|
G-PUMN
|
1998
|
2484
|
UK
|
12,490,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
GE
Capital
|
Scotia
|
G-XXXX
|
1998
|
2467
|
UK
|
12,440,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Sovereign
Finance
|
Scotia
|
G-PUMS
|
2000
|
2504
|
UK
|
12,690,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
SEB
Finans
AS
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
14,130,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
Westbroker
Finans
AS
|
HS
AS
|
LN-OHJ
|
2003
|
2594
|
Norway
|
14,600,000
|
||
|
AS332L2
|
Heavy
|
Leased
|
GE
European
Equipment
|
HS
AS
|
LN-OHK
|
2004
|
2613
|
Norway
|
17,962,772
|
||
|
AS332L2
|
Heavy
|
Leased
|
Elcon
Finance
|
HS
AS
|
LN-OHL
|
2004
|
2617
|
Norway
|
18,163,000
|
||
|
AS365N2
|
Medium
|
Leased
|
Handelsbanken
|
HS
AS
|
XX-XXX
|
0000
|
0000
|
Xxxxxx
|
2,336,000
|
||
|
S76A++
|
Medium
|
Owned
|
Xxxxx
Offshore Helicopters Pty
Ltd
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
000000
|
Xxxxxxxxx
|
Unsecured
|
Primary
Non-Nordic
|
2,736,000
|
|
AS365N3
|
Medium
|
Leased
|
ANZ
Leasing
|
Australia
|
VH-PVG
|
2001
|
6597
|
Australia
|
5,301,000
|
||
|
AS365N3
|
Medium
|
Leased
|
ANZ
Leasing
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
0000
|
Xxxxxxxxx
|
5,039,000
|
||
|
Xxxx
212
|
Medium
|
Leased
|
GB/Xxxxx
|
Africa
|
ZS-RGV
|
1979
|
00000
|
Xxxxx
Xxxxxx
|
1,890,000
|
||
|
Xxxx
212
|
Medium
|
Leased
|
GE
Capital
|
International
|
X-XXXX
|
0000
|
00000
|
Xxxxx
Xxxxxx
|
2,949,500
|
||
|
Xxxx
212
|
Medium
|
Leased
|
CDN
Air
Parts
|
International
|
C-FCAP/
ZS-RNH
|
1979
|
30923
|
Georgia
|
2,079,000
|
-
193
-
|
USD
|
|||||||||||
|
Appraisal
|
|||||||||||
|
A/C
Type
|
Size
|
Status
|
Owner
|
Oper
Div
|
Call
Sign
|
Yr
Mfg
|
S/N
|
Country
|
Security
|
Jurisdiction
|
April
2004
|
|
Xxxx
212
|
Medium
|
Leased
|
Xxxxx
Air
|
Australia
|
VH-LHX/C-GOKX
|
1975
|
30680
|
East
Timor
|
1,916,000
|
||
|
Xxxx
412
|
Medium
|
Leased
|
ANZ
Leasing
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
5,226,000
|
||
|
Xxxx
412
|
Medium
|
Leased
|
ANZ
Leasing
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxxxxxx
|
5,229,500
|
||
|
Xxxx
412HP
|
Medium
|
Leased
|
Helicopter
Holdings
Ltd
|
International
|
N-412MB
|
1991
|
36023
|
Venezuela
|
4,066,815
|
||
|
S61N
|
Heavy
|
Leased
|
Airlog
|
Scotia
|
EI-CNL
|
1962
|
61746
|
Ireland
|
2,762,500
|
||
|
S61N
|
Heavy
|
Leased
|
Airlog
|
Scotia
|
EI-MES
|
1977
|
61776
|
Ireland
|
3,058,000
|
||
|
S61N
|
Heavy
|
Leased
|
Airlog
|
Scotia
|
EI-SAR
|
1975
|
61143
|
Ireland
|
2,834,000
|
||
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
HS-HTO/
C-GIHO
|
1979
|
760015
|
Thailand
|
Unsecured
|
Non-primary
|
2,898,000
|
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
C-GIMJ
|
1979
|
760009
|
Myanmar
|
Unsecured
|
Non-primary
|
3,252,000
|
|
S76C+
|
Medium
|
Owned
|
CHII
-
International
|
International
|
C-GHRY
|
2004
|
760568
|
Canada
|
Unsecured
|
Primary
Non-Nordic
|
6,637,565
|
|
S76A++
|
Medium
|
Owned
|
CHII
-
International
|
International
|
HS-HTX/
C-GIMX
|
1979
|
760213
|
Malaysia
|
Unsecured
|
Non-primary
|
2,825,000
|
|
S76A++
|
Medium
|
Leased
|
GE
Capital
|
International
|
HS-HTI/
VH-JXL
|
1981
|
760148
|
Thailand
|
2,597,500
|
||
|
S76A++
|
Medium
|
Leased
|
GE
Capital
|
International
|
HS-HTU/
VH-HUB
|
1979
|
760010
|
Thailand
|
2,699,500
|
||
|
Twin
Otter
|
Fixed
Wing
|
Leased
|
Xxxx
Xxxxx
|
International
|
C-GKCS
|
1980
|
693
|
Myanmar
|
1,050,000
|
||
|
Twin
Otter
|
Fixed
Wing
|
Leased
|
Xxxx
Xxxxx
|
International
|
C-GKBR
|
1979
|
617
|
Myanmar
|
1,030,000
|
||
|
DHC6-300
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-SAC
|
1975
|
476
|
Cameroun
/
Tchad
|
Unsecured
|
Non-primary
|
1,010,000
|
|
DHC6-310
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-SAF
|
1977
|
529
|
Cameroun
/
Tchad
|
Unsecured
|
Non-primary
|
930,000
|
|
DHC6-310
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-ALL
|
1977
|
572
|
Cameroun
/
Tchad
|
Unsecured
|
Non-primary
|
780,000
|
|
DHC6-300
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-SAD
|
1978
|
600
|
Cameroun
/
Tchad
|
Unsecured
|
Non-primary
|
930,000
|
|
DHC6-300
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-CQE
|
1980
|
662
|
Cameroun
/
Tchad
|
Unsecured
|
Non-primary
|
1,050,000
|
|
DHC8-102
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-MGV
|
1985
|
24
|
Nigeria
|
Unsecured
|
Non-primary
|
1,850,000
|
|
DHC8-311
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-EVD
|
1990
|
216
|
Nigeria
|
Unsecured
|
Non-primary
|
3,720,000
|
|
S76C+
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-BNG
|
1997
|
760468
|
Nigeria
|
Unsecured
|
Non-primary
|
5,002,500
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-BBK
|
1985
|
760310
|
Nigeria
|
Unsecured
|
Non-primary
|
2,486,500
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-SDW
|
1989
|
760350
|
Nigeria
|
Unsecured
|
Non-primary
|
2,541,000
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZZ
|
1985
|
760316
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,180,000
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZS
|
1986
|
760325
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,492,000
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZT
|
1986
|
760326
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,715,000
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZU
|
1986
|
760329
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,462,500
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZV
|
1987
|
760336
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,574,000
|
|
S76B
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZW
|
1991
|
760381
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,535,000
|
|
S61N
|
Medium
|
Owned
|
XXX
XX
|
Xxxxxxxxx
|
XX-XXX
|
0000
|
00000
|
Xxxxx
|
Secured
|
Non-primary
|
2,156,000
|
|
S61N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZG
|
1975
|
61753
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,042,000
|
|
S61N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-NZK
|
1977
|
61773
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,388,000
|
|
SA365N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-ESO
|
1983
|
6072
|
Nigeria
|
Unsecured
|
Non-primary
|
1,283,000
|
|
SA365N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-BDA
|
1984
|
6077
|
Nigeria
|
Unsecured
|
Non-primary
|
1,369,500
|
|
SA365N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-BET
|
1984
|
6087
|
Nigeria
|
Unsecured
|
Non-primary
|
1,337,000
|
|
SA365N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-STO
|
1984
|
6106
|
Nigeria
|
Unsecured
|
Non-primary
|
1,184,500
|
|
SA365N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-CQD
|
1983
|
6062
|
Cameroun
|
Unsecured
|
Non-primary
|
450,000
|
|
SA365N
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-SSX
|
1982
|
6030
|
Spain
|
Unsecured
|
Non-primary
|
1,630,000
|
|
SA365C2
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-HRL
|
1980
|
5055
|
Spain
|
Unsecured
|
Non-primary
|
395,000
|
|
SA365N2
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-FMD
|
1994
|
6469
|
not
operated
yet
|
Unsecured
|
Non-primary
|
2,764,028
|
|
SA365N3
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
XX-SAY
|
2000
|
6571
|
Cameroun
|
Unsecured
|
Non-primary
|
4,631,500
|
|
SA365N3
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-SHI
|
2003
|
6657
|
The
Netherlands
|
Unsecured
|
Primary
Non-Nordic
|
5,975,000
|
|
SA365N3
|
Medium
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-BGF
|
2003
|
6593
|
Nigeria
|
Unsecured
|
Non-primary
|
5,616,000
|
|
MD902
|
Light
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-SHF
|
2000
|
80
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,891,500
|
|
MD902
|
Light
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
PH-RVD
|
2000
|
79
|
The
Netherlands
|
Secured
|
Primary
Non-Nordic
|
2,899,500
|
|
Learjet
45
|
Fixed
Wing
|
Owned
|
CAS
BV
|
Xxxxxxxxx
|
5N-BGR
|
2001
|
163
|
Nigeria
|
Unsecured
|
Non-primary
|
6,504,568
|
|
DHC8-311
|
Fixed
Wing
|
Leased
|
Airplanes
Jetprop
Finance
|
Xxxxxxxxx
|
5N-DAP
|
1990
|
244
|
Nigeria
|
3,980,000
|
||
|
S76C+
|
Medium
|
Leased
|
Helicopter
Transportation
Group
|
Xxxxxxxxx
|
5N-BCX
|
1997
|
760466
|
Nigeria
|
4,589,000
|
||
|
SA365N1
|
Medium
|
Leased
|
Helicopter
Transportation
Group
|
Xxxxxxxxx
|
5N-BFP
|
1989
|
6319
|
Nigeria
|
2,375,000
|
||
|
SA365N2
|
Medium
|
Leased
|
Helicopter
Leasing
Group
|
Xxxxxxxxx
|
5N-BBR
|
1992
|
6446
|
Nigeria
|
2,829,000
|
||
|
DHC8-311
|
Fixed
Wing
|
Leased
|
Airplanes
Jetprop
Finance
|
Xxxxxxxxx
|
XX-SAB
|
1991
|
276
|
Tchad
|
4,070,000
|
||
|
SA365N
|
Medium
|
Leased
|
Helicopter
Leasing
Group
|
Xxxxxxxxx
|
PP-MCA
|
1984
|
6103
|
Brazil
|
1,579,500
|
||
|
207
|
898,669,060
|
-
194
-
SCHEDULE
J
LIMITATIONS
ON CERTAIN OBLIGORS AND OTHERS
[see
reference in Section 10.8]
|
1.
|
Neither
CHC Helicopter Holdings Limited nor Viking Helicopters Limited shall
have
any material Property other than Capital Stock of CHII and neither
shall
carry on any business other than owning that Capital
Stock.
|
|
2.
|
None
of Pacific Aerospace Services Inc., Bond Rotary Wing Limited, Court
Helicopters (Proprietary) Ltd. (formerly Court Republic Helicopters
(Proprietary) Ltd.), Multifabs Survival Inc., Kirkhill Limited,
Scandinavian Aviation Group and Scotia Helicopter Services Limited
shall
carry on any business or own any
Property.
|
|
3.
|
297303
British Columbia Limited shall not have any material Property (except
for
an existing account receivable from a related party) or carry on
any
business unless it becomes an Obligor and complies with all of the
requirements in Section 6.1.2 relating to newly owned, established
or
acquired wholly owned Subsidiaries. Bond Helicopters Limited, a
corporation established to preserve that name following a previous
change
of name of what is now CHC Scotia shall not have any material Property
or
carry on any business unless it becomes an Obligor and complies with
all
of the requirements in Section 6.1.2 relating to newly owned, established
or acquired wholly owned
Subsidiaries.
|
|
4.
|
Flight
Handling Limited shall have no material Property other than one or
more
letters of indemnity or mortgages of helicopters in Denmark that
it holds
to secure its guarantee and indemnity in favour of the Agent, and
shall
not carry on any business other than holding those letters of indemnity
or
mortgages.
|
|
5.
|
Vinland
Denmark A/S shall have no material Property other than Capital Stock
of
Vinland Holding AS and CHC Denmark ApS and shall not carry on any
business
other than owning that Capital
Stock.
|
|
6.
|
Vinland
Holding AS shall have no material Property other than Capital Stock
of
Helicopter Services Group AS and Integra Leasing AS and shall not
carry on
any business other than owning that Capital
Stock.
|
|
7.
|
CHC
Denmark ApS shall not carry on any business other than acting as
a
subcontractor to or agent for Brintel Helicopters Limited in the
performance of a contract with Maersk Oil and shall have no material
Property other than helicopters leased from other
Obligors.
|
|
8.
|
Integra
Leasing AS and Heliwest AS shall not carry on any business other
than as
lessees under leases of helicopters from which in turn are sub-leased
in
compliance with SCHEDULE L, and shall have no material Property other
than
rights in connection with those
leases.
|
-
195
-
|
9.
|
Court
Helicopter Services (Proprietary) Limited (formerly Court Air Holdings
(Proprietary) Ltd.) shall have no material Property other than Capital
Stock of Court Air (Proprietary) Ltd. and shall not carry on any
business
other than owning that Capital
Stock.
|
|
10.
|
Court
Air (Proprietary) Ltd. shall have no material Property other than
Capital
Stock of CHC Helicopters (Africa) (Proprietary) Ltd., Helicopter
Services
(Pty) Ltd. and, until they are dissolved, Court Helicopters (Proprietary)
Ltd. and Court Flight Safety (Proprietary) Limited, and shall not
carry on
any business other than owning that Capital
Stock.
|
|
11.
|
Court
Flight Safety (Proprietary) Ltd. shall have no material Property
other
than amounts receivable of not greater than 50,000 South African
Rand and
shall not carry on any business other than seeking to collect those
amounts. CHC shall cause it to be dissolved or wound up as soon
as it has assigned the amounts receivable to an Obligor, collected
them or
exhausted attempts to collect them.
|
|
12.
|
CHC
Reinsurance S.A. shall have no material Property other than loans
owing by
HSG in the amounts of NOK 15,750,000 and US $300,000 and by HSAS
in the
amounts of NOK 6,000,000 and US $1,000,000 and shall not carry on
any
business other than owning those
loans.
|
|
13.
|
HSG
and Scancopter AS shall not acquire material Property in excess of
that
owned on 11 August 1999 without the prior consent of the Required
Lenders.
|
|
14.
|
None
of Aerocoop B.V., Airmars Trading Company Ltd., Helicopter Administration
Services Ltd., Lesotho Air Transport Services (Proprietary) Ltd.,
Xxxxxxxxx Aircraft Trading Company B.V., Xxxxxxxxx Airtax Argentina
SA,
Xxxxxxxxx Airways (Cyprus) Ltd., Xxxxxxxxx Northsea Helicopters UK
Ltd.,
Servicio Aero Litoral Ltda, Aviation Trading and Constructing AG,
Xxxxxxxxx Airways Panama SA, Xxxxxxxxx Airways Panama Operating SA
and
Xxxxxxxxx Airways Belgium N.V. shall carry on any business or own
any
Property.
|
|
15.
|
CHC
Capital (Barbados) Limited shall have no material Property other
than
Intercompany Loan Obligations totalling €71,000,000 owing by CHC
Netherlands B.V. and shall not carry on any business other than holding
those Intercompany Loan
Obligations.
|
|
16.
|
CHC
Sweden AB shall have no material Property other than Capital Stock
in CHC
Netherlands B.V. and shall not carry on any business other than holding
that Capital Xxxxx.
|
|
00.
|
XXX
Xxxxxxxxxxx B.V. shall have no material Property other than Capital
Stock
in Xxxxxxxxx and Intercompany Loan Obligations totalling up to €34,000,000
owing by Xxxxxxxxx and/or its Subsidiaries and shall not carry on
any
business other than holding that
Property.
|
-
196
-
|
18.
|
6248276
Canada Inc. shall have no material Property other than Capital Stock
in
Vector Aerospace Corporation owned as of 22 December 2004 and shall
not
carry on any business other than holding that
Property.
|
-
197
-
SCHEDULE
K
RESTRICTED
INTERCOMPANY OBLIGATIONS
[see
reference in Section 1.1.128]
|
Lender
|
Borrower
|
Guarantor(s)
and Comments
|
Amount
|
|
|
1.
|
CHB
|
HSG
|
Pursuant
to loan and guarantee agreement dated as of 15 October
1999. Guarantors include HSAS, Vinland Holding AS, Integra
Leasing AS, Heliwest AS, Astec Helicopter Services AS and Scancopter
AS
|
£36,497,577
|
|
2.
|
CHB
|
HSAS
|
Pursuant
to loan and guarantee agreement dated as of 15 October
1999. Guarantors include HSG, Vinland Holding AS, Integra
Leasing AS, Heliwest AS, Astec Helicopter Services AS and Scancopter
AS
|
NOK
446,092,590
|
CHC
may designate other Intercompany Loan Obligations owing by Norwegian Obligors
as
Restricted Intercompany Obligations as long as the Agent is satisfied that
all
Norwegian Obligors are liable in respect of the proposed additional Restricted
Intercompany Obligations and that they are secured to the same extent as the
Restricted Intercompany Obligations referred to above.
-
198
-
SCHEDULE
L
SPECIAL
REQUIREMENTS REGARDING AIRCRAFT
[see
reference in Section 10.3.5(b)]
To
the extent it has any interest in Aircraft, each Obligor shall comply with
the
following requirements:
|
1.
|
General
Limitation on Location of
Aircraft
|
Notwithstanding
anything contained in this Agreement, unless the Required Lenders and CHC
otherwise agree, CHC shall ensure that at all times not more than 10% of the
aggregate value of all Aircraft owned or leased by Obligors in the total fleet
of the Obligors are located in or operated from any single jurisdiction other
than a Primary Operating Jurisdiction.
|
2.
|
Relocation
of Aircraft
|
An
Obligor may from time to time choose to relocate any Aircraft outside the
jurisdiction listed with respect to that Aircraft on SCHEDULE I as of 31 October
2004, but upon any relocation, the Aircraft will not be eligible to be included
in the Borrowing Base until the Obligor has caused any document or agreement
necessary in connection with the Security required under this Agreement to
be
executed, recorded, filed, re-executed, re-recorded and/or re-filed pursuant
to
any Applicable Law in the new jurisdiction as and to the extent necessary in
order to, and shall take such other actions, including delivery of a legal
opinion concerning the new Security, as may from time to time be reasonably
requested by the Agent or be necessary or advisable to, establish, perfect,
protect and maintain the Security over the Aircraft and all related Parts and
technical documents free and clear of all Encumbrances other than Permitted
Encumbrances and establish rights and remedies created or intended to be created
under the Security and carry out more effectively the intent of the
Security.
|
3.
|
Control
of Aircraft
|
Unless
otherwise expressly permitted in this Agreement, it shall maintain de facto
operational control of all Aircraft, (i) through crew employed by, or subject
to
the direct control of, the Obligor or (ii) through a Person that is partially
owned by an Obligor or a joint venture in either of which the Obligor's
participation is sufficient to enable it to provide, control or actively monitor
the operation and maintenance of the Aircraft, except:
|
(a)
|
with
the prior written consent of the
Agent;
|
|
(b)
|
an
Aircraft may be delivered to a manufacturer or to any other person
for
testing, overhaul, service, repair or maintenance work to be carried
out
upon it or for modification, alterations or changes permitted or
required
to be made by this Agreement to be carried out thereon;
or
|
-
199
-
|
(c)
|
not
more than 10% of the aggregate value of all Aircraft owned or leased
by
Obligors in the total fleet of the Obligors may be outside the operational
control of an Obligor through "dry"
leases.
|
|
4.
|
Registration
|
(a) It
shall at its own cost and expense cause each Aircraft to be duly registered
in
the jurisdiction in which it is located under the applicable civil aviation
regulations and at all times to remain so duly registered in its name and shall
to the extent to which it is possible so to do cause the interest of the Agent
to be noted with the applicable civil aviation authority, except where
maintaining a pre-existing registration despite re-location to a new
jurisdiction is prudent according to industry practice and in compliance with
Applicable Law.
(b) It
shall promptly as and when reasonably requested by the Agent provide the Agent
with evidence of the currency of the applicable certificate of registration
and
certificate of airworthiness issued pursuant to the applicable civil aviation
regulations in respect of the Aircraft.
(c) It
shall maintain any other Permit that may from time to time be required under
any
Applicable Law for the ownership or operation of the Aircraft.
|
5.
|
Maintenance
|
It
shall at all times:
|
(a)
|
maintain,
inspect, service, repair, overhaul and test the Aircraft and each
Part
thereof so as to keep it at all times in good operational repair
and
condition in all respects and in compliance with Applicable Law and
all
requirements and recommendations of any manufacturer and/or supplier
of
the Aircraft and each Part thereof; in each case, such things
shall be done in a manner, to an extent and with a standard of care
not
less than the standard of the industry for prudent maintenance and
safety
of similar aircraft, and in such manner and condition as will maintain
all
warranties and indemnities of manufacturers and/or suppliers and
as will
fully satisfy any applicable requirements of any
insurer;
|
|
(b)
|
maintain
all records, logs and other similar material required by Applicable
Law or
required by any manufacturer and/or supplier in order to maintain
any
warranties given by such manufacturer and/or supplier or required
by any
insurer;
|
|
(c)
|
upon
the request of the Agent, promptly furnish to the Agent such information
to which the Obligor has or should have access as may be required
to
enable the Agent to file any notifications of repairs required to
be filed
by the Agent with any applicable Governmental Authority in respect
of the
Aircraft or the operation thereof;
|
|
(d)
|
comply
with all Applicable Law applicable to the Aircraft or the operation
thereof including all airworthiness directives and ensure that at
all
times there is a current, unconditional airworthiness certificate
issued
in respect of the Aircraft under the applicable civil aviation
regulations;
|
-
200
-
|
(e)
|
ensure
that any direction by the applicable civil aviation authority in
respect
of a certificate of airworthiness or maintenance release or any
notification or suspension or cancellation of a maintenance release
or
certificate of airworthiness is promptly brought to the attention
of any
person who is likely to fly or likely to issue a maintenance release
in
respect of the Aircraft;
|
|
(f)
|
ensure
that each Aircraft is, at all times when not being operated, properly
and
safely hangared and sheltered where it is reasonably possible and
customary under industry practice to do
so.
|
Where
it does not employ qualified staff for the purpose referred to in this clause,
it shall at its own expense effect maintain and keep in force maintenance
contracts in respect of the Aircraft providing for regular maintenance in
accordance with the manufacturer's specification and in particular such
contracts as may be properly required by any insurer in pursuance of the
Obligor's obligations to effect insurance. Each such contract shall
be entered into with a reputable contractor engaged in the business of
maintenance and repair of such parts of the Aircraft. The Obligor
shall upon the request of the Agent produce to the Agent copies of all such
maintenance contracts together with satisfactory evidence that the same are
still in force.
In
the event of the Obligor failing to comply with its obligations under this
clause, the Agent shall be entitled to give notice to the Obligor to remedy
such
failure and in the event that such remedy is not effected to the satisfaction
of
the Agent within a reasonable period, the Agent shall be entitled, but not
bound, to effect or cause to be effected, at the expense of the Obligor, such
repairs and the like works as are necessary to remedy such failure.
|
6.
|
Replacement,
Interchange and Exchange of
Parts
|
(a) It
shall promptly replace (or cause to be replaced) all Parts which are or may
from
time to time be incorporated or installed in or attached to an Aircraft and
which may from time to time become worn out, lost, stolen, destroyed, seized,
confiscated, damaged beyond repair or permanently rendered unfit for use for
any
reason whatsoever, and may, in the ordinary course of maintenance, service,
overhaul, repair or testing of such Aircraft remove any Parts provided that
such
Parts are replaced as promptly as practicable, consistent with normal industry
practice. All replacement Parts shall be free and clear of any
Encumbrances (except Permitted Encumbrances) and shall be in as good operating
condition as, and shall have a utility at least equal to, the Parts being
replaced.
(b) All
Parts at any time so removed from any Aircraft shall remain the property of
such
Obligor and subject to the Security, no matter where located, until such time
as
such Parts shall be replaced by Parts which meet the requirements for
replacement Parts specified above and until title to such replacement Parts
has
vested in the Obligor in accordance herewith, at which time the removed Parts
shall cease to be subject to the Security unless and until they subsequently
become replacement Parts. Immediately upon any replacement Parts
becoming incorporated or installed in or attached to any Aircraft as
hereinbefore provided, such replacement Parts shall be deemed a part of such
Aircraft and be subject to the Security.
-
201
-
(c) The
Lenders acknowledge and consent to the necessity for an Obligor which operates
Aircraft to interchange Parts on an Aircraft which have time life
characteristics and are subject to repair and overhaul among the similar type
Aircraft in the Obligors' fleet from time to time, and to engage in interchanges
and exchanges of such Parts either internally from its pool of Parts or
externally pursuant to power-by-the-hour arrangements with manufacturers and
possibly with other third parties in the ordinary course of its business,
consistent with industry practice.
(d) Unless
a Default has occurred and is continuing, an Obligor which operates any of
the
Aircraft shall be entitled to directly or indirectly exchange, deal in and
dispose of such exchangeable Parts in the usual course of its business,
consistent with industry practice, when substituting the same for Parts of
equal
or greater utility. Whether it occurs pursuant to a power-by-the-hour
contract or otherwise, any Part at any time removed from an Aircraft of the
Obligor shall remain subject to the Security until, but only until, such time
as
a replacement Part of equal or greater utility to the Part so removed is
incorporated into or annexed to such Aircraft, and title to such replacement
Part has passed to the Obligor such that the same becomes subject to the
Security free and clear of all Encumbrances other than Permitted
Encumbrances. Thereafter the Part so removed may be delivered and
transferred free and clear of the Security to any third party which provided
the
replacement Part if there is an obligation to do so.
(e) Upon
substitution of an exchangeable Part into any Aircraft that is not beneficially
owned by an Obligor but is operated within its fleet, any right, title or
security interest of the Lenders therein shall thereupon be and become
subordinate to the security interest or rights of any third party lender or
lessor then holding a prior ranking Permitted Encumbrance over the Aircraft
into
which the same has been incorporated, provided that a Part of equal function
and
utility is removed from the Aircraft in exchange therefor and concurrently
becomes subject to the Security free and clear of the security interest or
rights of the third party lender or lessor.
|
7.
|
Alterations,
Modifications and
Additions
|
An
Obligor may, at its own cost and expense, from time to time make such
alterations, modifications and additions to any such Aircraft as it may deem
desirable in the proper conduct of its business, provided that no such
alteration, modification or addition diminishes the value, utility, condition
or
airworthiness of the Aircraft below the value, utility, condition and
airworthiness thereof immediately prior to such alteration, modification or
addition, and that such Aircraft then has the utility and airworthiness required
to be maintained by the terms of this Agreement. Nothing in this
SCHEDULE L shall, however, prevent an Obligor from making modifications to
an
Aircraft or failing to replace any Part that is removed if doing so is intended
to accommodate a change in the use or location of the Aircraft.
-
202
-
|
8.
|
Insurance
|
It
shall, at its own expense, take out and at all times maintain in full force
and
effect insurance in such amounts and in form and through brokers, reasonably
satisfactory to the Agent in its name and in the name of the Agent as its
interest may appear against:
|
(a)
|
loss,
damage or destruction (whether total or partial) to the Aircraft,
Parts
and technical documents relating
thereto;
|
|
(b)
|
any
liability for:
|
|
(i)
|
injury
(including bodily injury and personal injury to passengers, crew,
employees and third parties);
|
|
(ii)
|
damage
(including property damage) to baggage, cargo, mail, public and private
property (whether owned by cargo consignors, passengers, crew, employees
or third parties);
|
|
(iii)
|
any
claims whatsoever (whether or not similar to the foregoing) caused
by or
arising out of or in connection with the operation, storage, maintenance
or use of the Aircraft, Parts and technical documents;
and
|
|
(c)
|
any
other liability normally insured against by companies engaged in
the same
or similar business or companies owning and operating similar Aircraft;
and
|
|
(d)
|
such
other risks as the Agent may reasonably specify from time to
time.
|
All
insurance shall be:
|
(e)
|
in
amounts which are not less than the public liability and property
damage
insurance applicable to similar aircraft which comprise its fleet
and on
which it carries insurance;
|
|
(f)
|
of
the type usually carried out by companies engaged in the same or
similar
business, owning and operating similar aircraft and which covers
risks of
the kind customarily insured against by such
companies;
|
|
(g)
|
maintained
in effect with insurers of recognised standing in leading insurance
markets; and
|
|
(h)
|
endorsed
with a breach of warranties endorsement for the benefit of the Agent
in
terms approved by the Agent.
|
During
the term of this Agreement it shall:
|
(i)
|
not
without the prior consent of the Agent alter any of the insurance
in a
manner which has a material adverse effect in relation to the cover
and/or
risks provided by the insurance as at the date hereof nor make, do,
consent or agree to any act or omission which would or might render
any of
the insurance invalid, void, voidable or unenforceable or render
any sum
paid out under any of the insurance repayable in whole or in
part;
|
-
203
-
|
(j)
|
not
cause or permit the Aircraft to be operated in any way inconsistent
with
the provisions of warranties of, or implied in, outside the geographical
limits of or otherwise outside the cover provided by, any insurance
or to
be used or kept for any purpose or to carry any cargo in any manner
or in
any place not permitted by any
insurance;
|
|
(k)
|
renew
all insurance at least 14 days before the relevant policies or contracts
expire and ensure that the approved brokers promptly confirm in writing
to
the Agent as and when each such renewal is
effected;
|
|
(l)
|
comply
with the terms of each insurance policy and duly pay all premiums,
calls,
contributions or other sums of money from time to time payable in
respect
of the insurance;
|
|
(m)
|
not
authorize or permit payment of any monies in respect of the insurance
other than to the Agent or as provided in Sections 5.6 and 10.9 of
this
Agreement;
|
|
(n)
|
except
as provided in Sections 5.6 and 10.9 of this Agreement, if it receives
payment of any moneys in respect of insurance, forthwith pay over
the same
to the Agent and until paid over hold such moneys in trust for the
Agent;
|
|
(o)
|
immediately
notify the Agent in reasonable detail about any claims or events
giving
rise to claims in excess of USD 1,000,000
each;
|
|
(p)
|
comply
with all Applicable Law from time to time regarding insurance in
connection with the Aircraft imposed by the jurisdiction of registration
of the Aircraft and any state to, from or over which it is
flown.
|
The
following additional provisions shall apply to insurance:
|
(q)
|
each
policy of insurance shall expressly provide that all of the provisions
thereof except the limits of liability shall operate in the same
manner as
if it was a separate policy covering each
insured;
|
|
(r)
|
the
geographical limits from time to time for the operation of each policy
of
insurance with respect to the Aircraft shall include as the minimum
coverage all territories in or over which it will operate the
Aircraft;
|
|
(s)
|
each
policy of insurance shall also contain an agreement by the insurer
that
notwithstanding the lapse of any such policy except by reason of
expiration in accordance with its terms, each such policy shall continue
in force for the benefit of the Agent for at least 30 days after
written
notice of such cancellation shall have been given to the
Agent;
|
-
204
-
|
(t)
|
no
reduction in limits or coverage of the insurance shall be made in
any such
policy or any part thereof except with the prior written approval
of the
Agent;
|
|
(u)
|
each
policy of insurance shall insure the Agent's interest up to the limits
of
such policy regardless of any act or neglect of the Obligor or any
breach
or violation by the Agent or the Obligor of any warranties declarations
or
conditions contained in such policies unless the Agent was aware
of the
same at the date of entry into the policy, and the Obligor hereby
represents that no such breach or violation
exists.
|
If
the Obligor fails to effect any required insurance, the Agent will be entitled
(but not bound):
|
(v)
|
to
pay any premiums or to effect the insurance which the Obligor has
so
failed to effect or otherwise to remedy such failure in such manner
as the
Agent considers appropriate or to effect any additional insurance
which
the Agent may in its reasonable opinion consider necessary to protect
its
interests under the Security and in the Aircraft and the other Property,
and any amount expended by the Agent in effecting such insurances
or such
additional insurances will be repayable by the relevant Obligor to
the
Agent together with interest thereon at the Prime Rate plus 3% from
the
date of such expenditure by the Agent to the date of payment thereof
by
the Obligor (both before and after any relevant judgment);
and
|
|
(w)
|
to
require such Aircraft as the Insurances relate to remain grounded
at any
airport or (as the case may be) to proceed to and remain at any airport
designated by the Agent until such failure is remedied to the satisfaction
of the Agent.
|
|
9.
|
Operation
|
During
the term of this Agreement, it shall:
|
(a)
|
not
operate the Aircraft in any manner contrary to the Applicable Law
in the
territories in which the Aircraft may operate from time to
time;
|
|
(b)
|
not
use or operate the Aircraft for any purpose for which it is not designed
or suited or outside tolerances and limitations for which it was
designed
or in any manner contrary to any airworthiness certificate, licence
or
registration relating to the Aircraft issued by the applicable civil
aviation authority;
|
|
(c)
|
not
cause or permit the Aircraft to be employed for any illegal purpose
in any
manner or to be located or operated in any country which would imperil
its
safety or render it liable to confiscation, forfeiture, seizure or
destruction;
|
|
(d)
|
take
all necessary steps to maintain its air operators
licence;
|
|
(e)
|
not
enter or trade to any zone which is declared a war zone by any
Governmental Authority or by the Aircraft's insurers unless the Obligor
shall have given notice to the Agent and effected at its expense
such
special insurance cover as the Agent may reasonably require and unless
the
Aircraft or other Aircraft owned or leased by an Obligor are operating
there at 31 October 2004 or the Agent shall have first given its
consent
thereto in writing;
|
-
205
-
|
(f)
|
not
do or omit to do anything which may prejudice any right which is
material
to the Obligor and which the Obligor or the Agent may have in respect
of
the Aircraft or any Part against the manufacturer or supplier of
the
same;
|
|
(g)
|
not
at any time represent or hold out the Agent or any Lender as carrying
any
goods or passengers in any Aircraft or as being in any way connected
or
associated with any operation of any Aircraft or in any other way
having
any interest in any the Aircraft except as holder of the
Security;
|
|
(h)
|
not
pledge the credit of the Agent or any Lender for any maintenance,
service,
repairs, overhauls of, or modifications to, or changes or alterations
in,
the Aircraft or any Part or in connection with the operation of the
Aircraft or for any other purpose
whatsoever;
|
|
(i)
|
promptly
furnish to the Agent all such information as the Agent may from time
to
time reasonably require regarding the Aircraft and their location,
re-location, usage and engagements and, if reasonably required, copies
of
all charters and other contracts for their employment or
otherwise;
|
|
(j)
|
maintain
accurate complete and current records of all flights made by the
Aircraft
and of all maintenance, modifications and repairs carried out to
the
Aircraft and any Part, and will maintain all other records, logs
and
documents which are required to be maintained in respect of the Aircraft
in accordance with the requirements of the applicable civil aviation
authority.
|
|
10.
|
Marking
of Aircraft
|
If
requested by the Agent in writing, it shall promptly affix and thereafter
maintain engraved metal nameplates approved by the Agent which shall identify
the Agent as the holder of Security and shall be placed in the cockpit of the
airframe of each Aircraft adjacent to the airworthiness
certificate. Such nameplates shall also state the type,
manufacturer's serial number and current registration data of the Aircraft
or
engine (as the case may be). Except as provided in this clause, the
Obligor shall not allow the name of any person to be placed on any Airframe
or
engine as a designation that might be interpreted as a claim of ownership or
entitlement to an Encumbrance except that the Obligor may place its colours
and
insignia on any Aircraft.
|
11.
|
Prevention
of Arrest and Discharge of Security
Interests
|
|
(a)
|
It
shall not do, and will endeavour so far as reasonably within its
powers to
prevent, any act which could reasonably be expected to result in
the
Aircraft or any Part being arrested, confiscated, seized, taken in
execution, poinded, impounded, forfeited, subjected to distress,
detained
in exercise or purported exercise of any possessory lien or other
claim or
otherwise taken from the possession of the
Obligor.
|
-
206
-
|
(b)
|
If
any such arrest, confiscation, seizure, taking, poinding, impounding,
forfeiture, subjection, or detention occurs it shall give the Agent
notice
within 24 hours thereof and will, at the Obligor's expense, procure
the
release of the Aircraft or the Part concerned within 7 days of receiving
notice of the occurrence by
providing bail or otherwise as the circumstances may require, and
it shall
be responsible for discharging each and every liability in connection
with
any such process, claim or lien without regard to whether or not
it is in
possession of the Aircraft or the Part
concerned.
|
|
12.
|
Application
to Leased Aircraft
|
Clauses
2, 6, 7, 8 and 10 do not apply to Aircraft that are leased by Obligors from
third parties.
-
207
-
SCHEDULE
M
OBLIGORS
[See
reference in Section 1.1.24]
As
of 22 December 2004 the Obligors are:
|
4083423
Canada Inc.
Astec
Helicopter Services AS
Australian
Helicopters Trust
Aviation
Personnel Recruitment and
Management
(APRAM) Limited
Bond
Helicopter Services Limited
Brintel
Helicopters Limited
Brintel
Holdings Limited
Canadian
Helicopters (U.K.) Limited
Capital
Aviation Services B.V.
CHC
Capital (Barbados) Limited
CHC
Denmark ApS
CHC
Helicopter Corporation
CHC
Helicopter Holdings Limited
CHC
Helicopters (Africa) (Proprietary) Ltd.
CHC
Helicopters (Barbados) Limited
CHC
Helicopters (Mauritius) Ltd.
CHC
Helicopters International Inc.
CHC
Helikopter Service AS
CHC
Ireland Limited
CHC
Leasing (Barbados) Limited
CHC
Netherlands BV
CHC
Scotia Limited
CHC
Sweden AB
Court
Air (Proprietary) Ltd.
Court
Helicopter Services (Proprietary) Ltd.
Flight
Handling Limited
Handelsmaatschappij
Xxxxxxxxx & Co B.V.
Helicopter
Services Group AS
Heliwest
AS
|
Heliworld
Leasing Ltd.
Integra
Leasing AS
Xxxxx
Xxxx Strait Helicopters Pty Ltd.
Xxxxx
Helicopter Services Limited
Xxxxx
Helicopter Services Pty Ltd.
Xxxxx
Helicopters International Pty Ltd. in
its
own capacity and in its capacity as
trustee
of the Australian Helicopters Trust
Xxxxx
Helicopters Pty Ltd.
Xxxxx
Off-Shore Helicopters Pty Ltd.
Luchtvaartmaatschappij
Xxxxxxxxx Airways
B.V.
Management
Aviation Limited
Multifabs
Survival Limited
North
Denes Aerodrome Ltd.
Scancopter
AS
Xxxxxxxxx
Air Target Services B.V.
Xxxxxxxxx
Aircraft Maintenance B.V.
Xxxxxxxxx
Canada Ltd.
Xxxxxxxxx
Luchtvaart Groep B.V.
Xxxxxxxxx
Northsea Helicopters B.V.
Xxxxxxxxx
Northsea Helicopters X.X.
Xxxxxxxxx
Onroerend Goed B.V.
Xxxxxxxxx
Tchad SA
Viking
Helicopters Limited
Vinland
Denmark A/S
Vinland
Holding AS (sometimes referred to as Vinland Holdings AS)
Whirly
Bird Services Limited
|
[Notes:
Xxxxxxxxx Aircraft Maintenance B.V. will be sold and released immediately
following execution of this Agreement. Xxxxxxxxx Canada Ltd. is being
sold and released at or about the time of execution of this
Agreement. Xxxxxxxxx Components B.V is in the process of becoming an
Obligor. Xxxxxxxxx Northsea Helicopters C.V. is being dissolved.]
-
208
-
THIS
FIRST AMENDING AGREEMENT is made as of 2 February 0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION
AND
THE OTHER OBLIGORS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT AS DEFINED BELOW
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties to a second amended and restated
credit agreement dated as of 22 December 2004, which amended and restated
a
credit agreement dated as of 5 July 2000, which in turn amended and
restated a credit agreement dated as of 2 August 1999, each of which
was amended and supplemented on various occasions before being amended and
restated (the "Existing Credit Agreement").
B. The
Existing Credit Agreement contemplates that it may be amended. The
parties are entering into this agreement to record various amendments that
have
been agreed to between them. The amendments are intended to address
an immaterial or administrative inconsistency in the Existing Credit Agreement
arising from the need to have an Affiliate of Nordea Bank Norge ASA provide
Credit B2 and therefore this agreement is executed by the Agent without
requiring the consent of the Lenders.
C. Capitalized
terms used in this agreement and not otherwise defined have the meanings
defined
in the Existing Credit Agreement.
THEREFORE,
for value received, and intending to be legally bound by this agreement,
the
parties agree as follows:
1. Amendment
to Section 1.1 of the Existing Credit Agreement
|
(a)
|
Section
1.1.21(b) is deleted and replaced by the
following:
|
"for
a Base Rate Advance under Credit B, the rate per annum equal to the offered
rate
of the particular Credit B Lender making the Advance (based on its cost of
funding) for loans in the applicable Approved Currency."
|
(b)
|
Section
1.1.87 is deleted and replaced by the
following:
|
"Issuing
Bank" has the meaning defined in the Provisions. For the time being,
BNS is the Issuing Bank in respect of L/Cs issued under Credit A and Nordea
Bank
Norge ASA is the Issuing Bank in respect of L/Cs issued under Credit
B. The Agent may from time to time designate other Lenders as Issuing
Banks after consultation with CHC.
-
209
-
|
(c)
|
Section
1.1.101 is deleted and replaced by the
following:
|
"Nordea"
means Nordea Bank Finland Plc, London Branch, a bank established under the
laws
of Finland, or any other Lender that is providing Advances under Credit B2
in
place of Nordea Bank Finland Plc, London Branch.
2. Amendment
to Article VIII of Existing Credit Agreement
The
second paragraph of Section 8.3 is deleted and replaced with the
following:
"Subject
to the provisions of Section 8.1 regarding the assignment of interests under
Credit B2 in the event of acceleration of payment of the Obligations, the
provisions of this Agreement do not apply to Credit B2 to the extent that
the
provisions contemplate the participation in Advances and payments under Credit
B2 by any Lender other than Nordea. All Advances under Credit B2
shall be made solely by Nordea and records concerning Advances shall be
maintained solely by Nordea. All payments of principal, interest,
fees and other amounts relating to Credit B2 shall be made solely to
Nordea. Any notices by the European Borrowers in connection with
Credit B2 shall be made to Nordea. The preceding sentences of this
paragraph shall also apply to Credit B1 if Nordea Bank Norge ASA is the only
Lender making Advances under Credit B1, and references to Credit B2 and Nordea
in those sentences shall for that purpose be interpreted as referring to
Credit
B1 and Nordea Bank Norge ASA.
Notice
and minimum amount requirements for Advances shall not apply to Advances
by way
of overdraft under Credit B2. In connection with Advances by way of
overdraft, if any, Nordea shall ascertain the positions or net positions
of the
respective European Borrowers' accounts in the relevant Approved Currencies
daily and, if the positions or net positions are debits in favour of Nordea,
the
debits will (if the European Borrowers are entitled to an Advance) be deemed
to
be Base Rate Advances in the respective amounts of the debits. If the
positions or net positions are credits in favour of the respective European
Borrowers, the credits will be deemed to be repayments of Base Rate Advances
under Credit B2 in the respective amounts of the credits."
-
210
-
3. Representations
of Obligors
The
Obligors acknowledge that this agreement is a Loan Document and that all
of
their representations and warranties concerning Loan Documents that are
contained in the Existing Credit Agreement apply to this agreement and are
deemed to be repeated on their execution of this agreement as if set out
in full
in this agreement. The Obligors also represent that there are no
consents or other agreements required from third parties to avoid this agreement
causing a breach or default under any other agreement to which any Obligor
is a
party.
4. Ratification
and Confirmation
The
Existing Credit Agreement, as amended by this agreement, remains in full
force
and effect and is hereby ratified and confirmed. The parties confirm
that none of the Advances has been repaid or replaced by new obligations
as a
result of this agreement and that all such Advances will remain outstanding
after the effectiveness of this agreement. This agreement merely
amends the Existing Credit Agreement and does not constitute or result in
a
novation or rescission of the Existing Credit Agreement or any other Loan
Document. Without in any way limiting the terms of the Existing
Credit Agreement or the other Loan Documents, the Obligors confirm that the
existing Security shall continue to secure all of the Obligations (or any
limited part thereof described in a particular document forming part of the
Security), including but not limited to those arising as a result of this
agreement.
5. Counterparts
and Facsimile
This
agreement may be executed in any number of counterparts, each of which when
executed and delivered shall be deemed to be an original, and such counterparts
together shall constitute one and the same agreement. The delivery of
a facsimile copy of an executed counterpart of this agreement shall be deemed
to
be valid execution and delivery of this agreement, but the party delivering
a
facsimile copy shall deliver an original copy of this agreement as soon as
possible after delivering the facsimile copy.
[Note: signature
pages follow]
-
211
-
IN
WITNESS OF WHICH, the parties have executed this agreement.
|
THE
BANK OF NOVA SCOTIA
as
Agent
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title: |
[signature
page for First Amending Agreement dated as of 2 February 2005 relating to
CHC
Helicopter Corporation et al]
-
212
-
______________________________ ______________________________
Sylvain
Xxxxxx Xx
Xxxx Zurel
each
signing in his capacity as an authorized officer or director or holder of
a
subsisting power of attorney of each of the Obligors other than CHC Helicopters
(Barbados) Limited, CHC Leasing (Barbados) Limited, CHC Capital (Barbados)
Limited, Vinland Holding AS, Helicopter Services Group AS, CHC Helikopter
Service AS, Integra Leasing AS, Heliwest AS, Astec Helicopter Services AS
and
Scancopter AS, and not in his personal capacity.
[signature
page for First Amending Agreement dated as of 2 February 2005 relating to
CHC
Helicopter Corporation et al]
-
213
-
|
CHC
HELICOPTERS
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
LEASING
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
CAPITAL
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title: |
[signature
page for First Amending Agreement dated as of 2 February 2005 relating to
CHC
Helicopter Corporation et al]
-
214
-
|
VINLAND
HOLDING AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:______________________________
Name
Title:
|
[signature
page for First Amending Agreement dated as of 2 February 2005 relating to
CHC
Helicopter Corporation et al]
-
215
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
ASTEC
HELICOPTER SERVICES AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for First Amending Agreement dated as of 2 February 2005 relating to
CHC
Helicopter Corporation et al]
-
216
-
THIS
SECOND AMENDING AGREEMENT is made as of 11 March 0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION
AND
THE OTHER OBLIGORS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT AS DEFINED BELOW
-
and -
THE
LENDERS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties to a second amended and restated
credit agreement dated as of 22 December 2004, which amended and restated
a
credit agreement dated as of 5 July 2000, which in turn amended and
restated a credit agreement dated as of 2 August 1999, each of which
was amended and supplemented on various occasions before being amended
and
restated. The second amended and restated credit agreement has been
amended by an amending agreement dated as of 2 February 2005 and as amended
and
supplemented to date is referred to in this agreement as the "Existing
Credit
Agreement."
B. The
Existing Credit Agreement contemplates that it may be amended. The
parties are entering into this agreement to record various amendments
that have
been agreed to between them, including amendments arising in connection
with
CHC's request that the Lenders agree to its issuance of additional senior
subordinated notes under the Sub Debt Indenture.
C. Capitalized
terms used in this agreement and not otherwise defined have the meanings
defined
in the Existing Credit Agreement.
THEREFORE,
for value received, and intending to be legally bound by this agreement,
the
parties agree as follows:
1. Amendment
to Section 1.1 of the Existing Credit Agreement
Section
1.1.138 is deleted and replaced by the following:
"Sub
Debt" means the 7.375% senior subordinated notes due 2014 issued under
the trust
indenture dated as of 27 April 2004 between CHC, other Obligors and The
Bank of
New York as trustee, consisting of notes in the aggregate principal amount
of US
$250,000,000 issued on or about 27 April 2004 and notes in the aggregate
principal amount of US $150,000,000 (issued at a premium to yield approximately
6.75% per annum) that will be issued on or about 22 March 2005. For
greater certainty, the Sub Debt does not include any "Additional Notes"
as
defined in that indenture apart from those mentioned in the immediately
preceding sentence.
-
217
-
2. Amendment
to Section 6.2 of the Existing Credit Agreement
Section
6.2(c) is deleted and replaced by the following:
"the
present and future debts, liabilities and obligations of an Obligor to
any
Lender (collectively, the "Other Secured Obligations") under or in connection
with (i) Swaps that do not have a term of longer than five
years, do not have an aggregate notional amount greater
than USD 550,000,000 or the equivalent amount in other
currencies by all Obligors under all such transactions that are outstanding
at
any time, and otherwise comply with Section 10.6.1(d) and (ii)
transactions other than Swaps that are not made under this Agreement,
if they
are listed in SCHEDULE G as of 22 December 2004, or if it is agreed by
the
Obligors and the Agent acting on the instructions of the Required Lenders
after
22 December 2004 that such debts, liabilities and obligations shall be
secured"
3. Amendments
to Schedules of the Existing Credit Agreement
|
(a)
|
Section
1 in Schedule D to the Existing Credit Agreement is deleted
and replaced
by the following:
|
The
term "Borrower," which is used but not defined in the Provisions, shall
be
interpreted as referring to "CHC" except as follows:
|
|
(a)
|
all
references to "Borrower" in the definition of "Obligors" and
in sections 5
and 14 of the Provisions, and the first reference to "Borrower"
in section
4 of the Provisions shall be interpreted as referring to "the
Borrowers,
or any of them;"
|
|
|
(b)
|
the
last two references to "Borrower" in each of sections 3.4 and
10(b) of the
Provisions, the last reference to "Borrower" in section 3.5,
and all
references to "Borrower" in sections 3.1, 3.3(b)(ii) and 6
and the first
paragraph of section 10(d) of the Provisions shall be interpreted
as
referring to whichever of the Borrowers is relevant to the
respective
Advances or payments contemplated by those
references;
|
-
218
-
|
|
(c)
|
all
references to "Borrower" in the definition of "Foreign Lender"
and the
first reference to "Borrower" in section 3.2(e) of the Provisions
shall be
interpreted as referring to each Borrower separately so as
to establish
for each Lender whether it is a Foreign Lender as regards each
Borrower;
|
|
|
(d)
|
the
first reference to "the Borrower" in each of sections 3.3(a)
and 3.3(b) of
the Provisions shall be interpreted as referring to "any Obligor"
and the
reference to "the Borrower" in the second paragraph of section
10(d) of
the Provisions shall be interpreted as referring to "each
Obligor."
|
|
(b)
|
Schedule
D to the Existing Credit Agreement is amended by adding the
following
after the existing provisions:
|
|
|
7.
|
The
definition of "Obligors" in the Provisions is deleted and replaced
by the
following:
|
"Obligors"
means, collectively, the Borrower and each of the guarantors of the Borrower's
obligations and other Persons identified as Obligors, in each case as
specified
elsewhere in this Agreement.
|
(c)
|
Schedule
E to the Existing Credit Agreement is deleted and replaced
by Schedule E
attached to this agreement.
|
4. Conditions
The
amendments specified in sections 1 and 2 of this agreement are subject
to the
following conditions:
|
(a)
|
the
additional notes referred to in section 1 must be issued on
or before 30
April 2005;
|
|
(b)
|
the
Agent must have received a certificate of CHC with copies of
all documents
necessary to fully and fairly disclose all material terms of
the Sub Debt,
including documents relating to the issuance of additional
notes referred
to in section 1, all of which must be satisfactory to the
Agent;
|
|
(c)
|
the
Agent must have received an opinion of CHC's counsel, substantially
comparable to previous opinions concerning the Sub Debt and
in form and
substance satisfactory to the
Agent;
|
|
(d)
|
the
Agent must have received such other documents as it may reasonably
require
in connection with this agreement.
|
-
219
-
5. Representations
of Obligors
The
Obligors acknowledge that this agreement is a Loan Document and that
all of
their representations and warranties concerning Loan Documents that are
contained in the Existing Credit Agreement apply to this agreement and
are
deemed to be repeated on their execution of this agreement as if set
out in full
in this agreement. The Obligors also represent that there are no
consents or other agreements required from third parties to avoid this
agreement
causing a breach or default under any other agreement to which any Obligor
is a
party.
6. Ratification
and Confirmation
The
Existing Credit Agreement, as amended by this agreement, remains in full
force
and effect and is hereby ratified and confirmed. The parties confirm
that none of the Advances has been repaid or replaced by new obligations
as a
result of this agreement. This agreement merely amends the Existing
Credit Agreement and does not constitute or result in a novation or rescission
of the Existing Credit Agreement or any other Loan Document. Without
in any way limiting the terms of the Existing Credit Agreement or the
other Loan
Documents, the Obligors confirm that the existing Security shall continue
to
secure all of the Obligations (or any limited part thereof described
in a
particular document forming part of the Security), including but not
limited to
any arising as a result of this agreement.
7. Counterparts
and Facsimile
This
agreement may be executed in any number of counterparts, each of which
when
executed and delivered shall be deemed to be an original, and such counterparts
together shall constitute one and the same agreement. The delivery of
a facsimile copy of an executed counterpart of this agreement shall be
deemed to
be valid execution and delivery of this agreement, but the party delivering
a
facsimile copy shall deliver an original copy of this agreement as soon
as
possible after delivering the facsimile copy.
[Note: signature
pages follow]
-
220
-
IN
WITNESS OF WHICH, the parties have executed this agreement.
|
THE
BANK OF NOVA SCOTIA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title: |
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
000
-
|
XXXXXXXX
XXXX XX XXXXXX
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title: |
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
222
-
|
BANK
OF MONTREAL
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
223
-
|
HSBC
BANK CANADA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
224
-
|
BANK
OF AMERICA, N.A.
Canada
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
225
-
|
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
000
-
|
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
227
-
|
NORDEA
BANK NORGE ASA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
228
-
|
NORDEA
BANK FINLAND PLC, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
000
-
|
XXXXXXXX
XXXXX XXXX, X.X.,
Xxxxxxx
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
230
-
|
THE
BANK OF NOVA SCOTIA,
as
Agent
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
______________________________ ______________________________
Name: Name:
each
signing in his capacity as an authorized officer or director or holder
of a
subsisting power of attorney of each of the Obligors other than CHC Helicopters
(Barbados) Limited, CHC Leasing (Barbados) Limited, CHC Capital (Barbados)
Limited, Vinland Holding AS, Helicopter Services Group AS, CHC Helikopter
Service AS, Integra Leasing AS, Heliwest AS, Astec Helicopter Services
AS and
Scancopter AS, and not in his personal capacity.
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
231
-
|
CHC
HELICOPTERS
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
LEASING
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
CAPITAL
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
|
VINLAND
HOLDING AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:______________________________
Name
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
232
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
ASTEC
HELICOPTER SERVICES AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for Second Amending Agreement dated as of 11 March 2005 relating
to CHC
Helicopter Corporation et al]
-
233
-
SCHEDULE
E
APPLICABLE
PERCENTAGES OF LENDERS
[Note:
Applicable Percentages are nil unless otherwise noted]
THE
BANK OF NOVA SCOTIA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
37.686437%
Credit
A2 (adjusted in accordance with Section 8.2) - 100%
Credit
A (overall) - 41.247100%
Credit
C - 41.247100%
Credit
E - 41.000000%
NATIONAL
BANK OF CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
19.056135%
Credit
A (overall) - 17.967200%
Credit
C - 17.967200%
Credit
E - 17.000000%
BANK
OF MONTREAL
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
10.480875%
Credit
A (overall) - 9.882000%
Credit
C - 9.882000%
Credit
E - 9.000000%
HSBC
BANK CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
9.909190%
Credit
A (overall) - 9.343000%
Credit
C - 9.343000%
Credit
X - 0.000000%
XXXX
XX XXXXXXX, X.X., Xxxxxx Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
7.622455%
Credit
A (overall) - 7.186900%
Credit
C - 7.186900%
Credit
E - 7.186900%
SOCIETE
GENERALE (CANADA)
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.716841%
Credit
A (overall) - 5.390200%
Credit
C - 5.390200%
Credit
E - 5.390200%
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.716841%
Credit
A (overall) - 5.390200%
Credit
C - 5.390200%
Credit
E - 5.390200%
NORDEA
BANK NORGE ASA
Credit
B1 (adjusted in accordance with Section 9.2) - 100%
Credit
B (overall) - 70.539999%
NORDEA
BANK FINLAND PLC
Credit
B2 (adjusted in accordance with Section 8.2) - 100%
Credit
B (overall) - 29.460001%
JPMORGAN
CHASE BANK N.A., Toronto Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
3.811227%
Credit
A (overall) - 3.593400%
Credit
C - 3.593400%
Credit
E - 3.593400%
-
235
-
THIS
THIRD AMENDING AGREEMENT is made as of 10 June 0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION
AND
THE OTHER OBLIGORS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT AS DEFINED BELOW
-
and -
THE
LENDERS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties to a second amended and
restated
credit agreement dated as of 22 December 2004, which amended and restated
a
credit agreement dated as of 5 July 2000, which in turn amended and
restated a credit agreement dated as of 2 August 1999, each of which
was amended and supplemented on various occasions before being amended
and
restated. The second amended and restated credit agreement has been
amended by an amending agreement dated as of 2 February 2005 and a
second
amending agreement dated as of 11 March 2005, and as amended and supplemented
to
date is referred to in this agreement as the "Existing Credit
Agreement."
B. The
Existing Credit Agreement contemplates that it may be amended. The
parties are entering into this agreement to record various amendments
that have
been agreed to between them in connection with CHC's internal reorganization
of
its subsidiaries.
C. Capitalized
terms used in this agreement and not otherwise defined have the meanings
defined
in the Existing Credit Agreement.
THEREFORE,
for value received, and intending to be legally bound by this agreement,
the
parties agree as follows:
1. Amendments
to Section 10.6 of the Existing Credit Agreement
|
(a)
|
Section
10.6.1 is amended by re-designating Section 10.6.1(c)(v)
as Section
10.6.1(c)(vi) and adding the following as a new Section
10.6.1(c)(v):
|
"loans
and advances to CHC Composites Inc. in an aggregate amount of not more
than
$20,000,000 outstanding for all Obligors at any time, for as long as
the
Obligors maintain their ownership interest in CHC Composites Inc. as
it existed
on 1 June 2005"
-
236
-
|
(b)
|
Section
10.6.2(c) is amended by adding the following after the existing
provisions:
|
|
|
"(vi)
|
other
acquisitions resulting from actions that are expressly permitted
by this
Agreement"
|
|
(c)
|
Section
10.6.2(f) is amended by adding the following after the existing
provisions:
|
|
|
"(vii)
|
dispositions
of Property to one or more other Obligors if CHC gives the
Agent
reasonable advance notice thereof and promptly takes such
steps as the
Agent reasonably requests to maintain the Security and the
other Loan
Documents so that the Lenders' position is not adversely
affected"
|
|
(d)
|
Section
10.6.3(c) is deleted and replaced by the
following:
|
"permit
its chief executive office or its Property (other than goods in transit)
to be
located out of the respective jurisdictions specified on SCHEDULE F
without
providing the Agent with reasonable advance notice thereof and promptly
taking
other steps, if any, as the Agent reasonably requests to maintain the
Security
and the other Loan Documents so that the Lenders' position is not adversely
affected"
2. Amendment
to Section 12.2 of the Existing Credit Agreement
Section
12.2.4 is deleted and replaced by the following:
"Notwithstanding
Sections 12.2.2 and 12.2.3, the Agent may, without the consent of the
Lenders,
make amendments to the Loan Documents that are for the sole purpose
of curing
any immaterial or administrative ambiguity, defect or inconsistency,
but shall
immediately notify the Lenders of any such action. The Agent may also
discharge any Security (a) to the extent necessary to allow any Obligor
to
complete any sale or other disposition of Property or other action
(including
the transfer of Aircraft from one jurisdiction to another or secured
financing
of particular Property) that is made in accordance with this Agreement
(including pursuant to any consent, waiver or other decision by the
Lenders or
Required Lenders) and (b) in a jurisdiction in which the relevant Obligor
no
longer has any Property and is not expected to have any Property in
the
future. In connection with any discharge of Security, CHC shall
provide the Agent with such evidence as the Agent reasonably requires
that CHC
will be in compliance with Section 6.4.1 following the discharge of
Security."
-
237
-
3. Amendments
to Schedules of the Existing Credit Agreement
Schedule
F to the Existing Credit Agreement is amended by adding the following
after the
existing provisions under the heading "ASTEC HELICOPTER SERVICES
AS:"
|
|
"Location
of Property
|
Norway;
United Kingdom; British Columbia and Nova Scotia, Canada"
4. Representations
of Obligors
The
Obligors acknowledge that this agreement is a Loan Document and that
all of
their representations and warranties concerning Loan Documents that
are
contained in the Existing Credit Agreement apply to this agreement
and are
deemed to be repeated on their execution of this agreement as if set
out in full
in this agreement. The Obligors also represent that there are no
consents or other agreements required from third parties to avoid this
agreement
causing a breach or default under any other agreement to which any
Obligor is a
party.
5. Ratification
and Confirmation
The
Existing Credit Agreement, as amended by this agreement, remains in
full force
and effect and is hereby ratified and confirmed. The parties confirm
that none of the Advances has been repaid or replaced by new obligations
as a
result of this agreement. This agreement merely amends the Existing
Credit Agreement and does not constitute or result in a novation or
rescission
of the Existing Credit Agreement or any other Loan Document. Without
in any way limiting the terms of the Existing Credit Agreement or the
other Loan
Documents, the Obligors confirm that the existing Security shall continue
to
secure all of the Obligations (or any limited part thereof described
in a
particular document forming part of the Security), including but not
limited to
any arising as a result of this agreement.
6. Counterparts
and Facsimile
This
agreement may be executed in any number of counterparts, each of which
when
executed and delivered shall be deemed to be an original, and such
counterparts
together shall constitute one and the same agreement. The delivery of
a facsimile copy of an executed counterpart of this agreement shall
be deemed to
be valid execution and delivery of this agreement, but the party delivering
a
facsimile copy shall deliver an original copy of this agreement as
soon as
possible after delivering the facsimile copy.
[Note: signature
pages follow]
-
238
-
IN
WITNESS OF WHICH, the parties have executed this agreement.
THE
BANK OF NOVA SCOTIA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXXX
XXXX XX XXXXXX
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
240
-
BANK
OF MONTREAL
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
241
-
HSBC
BANK CANADA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
242
-
BANK
OF AMERICA, N.A.
Canada
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
243
-
SOCIETE
GENERALE (CANADA)
By:
____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
245
-
NORDEA
BANK NORGE ASA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
246
-
NORDEA
BANK FINLAND PLC, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXXX
XXXXX XXXX, X.X.,
Xxxxxxx
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
248
-
THE
BANK OF NOVA SCOTIA,
as
Agent
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
249
-
______________________________ ______________________________
Name: Name:
each
signing in his capacity as an authorized officer or director or holder
of a
subsisting power of attorney of each of the Obligors other than CHC
Helicopters
(Barbados) Limited, CHC Leasing (Barbados) Limited, CHC Capital (Barbados)
Limited, Heli-One Norway AS (formerly Vinland Holding AS), Helicopter
Services
Group AS, CHC Helikopter Service AS, Integra Leasing AS, Heliwest AS,
Astec
Helicopter Services AS and Scancopter AS, and not in his personal
capacity.
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
250
-
CHC
HELICOPTERS
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
LEASING
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
CAPITAL
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
251
-
|
HELI-ONE
NORWAY AS (formerly
Vinland
Holding AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:______________________________
Name
Title:
|
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
252
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
ASTEC
HELICOPTER SERVICES AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for Third Amending Agreement dated as of 10 June 2005 relating
to CHC
Helicopter Corporation et al]
-
253
-
FINAL
THIS
FOURTH AMENDING AGREEMENT is made as of 19 June 0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION
AND
THE OTHER OBLIGORS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT AS DEFINED BELOW
-
and -
THE
LENDERS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties to a second amended and
restated
credit agreement dated as of 22 December 2004, which amended and
restated a
credit agreement dated as of 5 July 2000, which in turn amended and
restated a credit agreement dated as of 2 August 1999, each of which
was amended and supplemented on various occasions before being amended
and
restated. The second amended and restated credit agreement has been
amended by an amending agreement dated as of 2 February 2005, a second
amending
agreement dated as of 11 March 2005 and a third amending agreement
dated as of
10 June 2005 and as amended and supplemented to date is referred
to in this
agreement as the "Existing Credit Agreement."
B. The
Existing Credit Agreement contemplates that it may be amended. The
parties are entering into this agreement to record various amendments
that have
been agreed to between them since the date of the third amending
agreement in
connection with, among other things, CHC's continuing internal reorganization
of
its subsidiaries and an increase in the amount of Credit A.
C. Capitalized
terms used in this agreement and not otherwise defined have the meanings
defined
in the Existing Credit Agreement.
THEREFORE,
for value received, and intending to be legally bound by this agreement,
the
parties agree as follows:
1. Amendments
to Section 1.1 of the Existing Credit Agreement
|
(a)
|
Section
1.1.43 is deleted and replaced by the
following:
|
-
254
-
"Credit
A" means, collectively, the credit of up to US
$235,000,000 or the equivalent thereof in relevant Approved Currencies,
comprised of credits designated as "Credit A1," "Credit A2" and
"Credit A3", which are more particularly described in Article
II.
|
(b)
|
Section
1.1.62 is deleted and replaced by the
following:
|
"European
Borrowers" means CHC Scotia (for as long as it remains an Obligor),
Heli-One
(UK) Limited (formerly Brintel Holdings Limited) and any other European
Obligor
that may be designated by CHC as a European Borrower from time to
time with the
consent of the Required Lenders and after delivery of such guarantees
and other
Security as the Required Lenders may reasonably require. Without
limiting the foregoing, a Norwegian Obligor may be designated as
a European
Borrower if CHC and other Obligors that have not given guarantees
of CHC's
Obligations (because of limitations of Norwegian and similar laws)
give a
guarantee of the Norwegian Obligor's Obligations as Borrower and
the Norwegian
Obligor and those other Obligors amend the Security they have given
so as to
secure the Norwegian Obligor's Obligations as Borrower or their guarantees
thereof.
|
(c)
|
Section
1.1.90 is deleted and replaced by the
following:
|
"Lenders" means
each of the persons listed on SCHEDULE E and other lenders that agree
from time
to time to become Lenders in accordance with section 10 of the Provisions,
including the Credit A Lenders, the Credit B Lenders, the
Credit C Lenders and the Credit E Lenders, and "Lender" means any one of
the Lenders.
|
(d)
|
Section
1.1.114 (definition of Permitted Encumbrances) is amended
by inserting the
following as Section 1.1.114(x) after the existing
provisions:
|
"Encumbrances
on Aircraft and the proceeds thereof securing financing for the acquisition
thereof pursuant to the credit facility referred to in Section
1.1.115(p)"
|
(e)
|
Section
1.1.115 (definition of Permitted Obligations) is amended
by re-designating
Section 1.1.115(p) as Section 1.1.115(q) and inserting
the following as
Section 1.1.115(p):
|
"secured
or unsecured Debt under a term credit facility provided to CHC by
Export
Development Canada in a principal amount outstanding of not more
than USD
30,000,000 at any time, the purpose of which is to finance the purchase
of
Aircraft that are, at the inception of the facility, not operated
in Primary
Operating Jurisdictions"
-
255
-
|
(f)
|
Section
1.1.118 is deleted and replaced by the
following:
|
"Primary
Operating Jurisdiction" means each of Canada, the United Kingdom,
Norway,
Denmark (excluding Greenland), Australia, the United States of America,
South
Africa, the Netherlands, Ireland and Brazil.
2. Amendments
to Article II of the Existing Credit Agreement
|
(a)
|
Section
2.1.1 is deleted and replaced by the
following:
|
"Upon
and subject to the terms and conditions of this Agreement, the Credit A
Lenders agree to provide a credit for the use of CHC in the amount
of up to
US $235,000,000 or the equivalent thereof in other relevant Approved
Currencies, which is referred to collectively as Credit A and is comprised
of a tranche of US $175,000,000 referred to as Credit A1 (which is
also for the use of the Additional Borrowers), a tranche of US $20,000,000
referred to as Credit A2 (which is also for the use of the Overdraft
Borrowers) and a tranche of up to US $40,000,000 or the equivalent thereof
in relevant Approved Currencies referred to as "Credit A3" (which is also
for the use of the Additional Borrowers to the extent the Advances
to CHC
contemplated in Section 10.10(e) are repaid). Subject to Section 8.1,
Advances under Credit A1 and Credit A3 will be made by the Credit A
Lenders and Advances under Credit A2 will be made by BNS."
|
(b)
|
Section
2.1 is amended by adding the following after the existing
provisions:
|
|
|
"2.1.6
|
If
the Borrowers are otherwise entitled to an Advance under
Credit A, CHC may
from time to time increase the amount of Credit A1 and
decrease the amount
of Credit A3 by an equal amount, or vice versa. CHC's right to
do so is subject to CHC providing the Agent with an opinion
of counsel and
other evidence satisfactory to the Agent that any increase
in the amount
of Credit A1 is in compliance with the Sub Debt Indenture
because the
additional indebtedness incurred is properly classified
as being incurred
under section 1008(b)(i) or (xii) of the Sub Debt Indenture
or that any
increase in the amount of Credit A3 is in compliance with
the Sub Debt
Indenture because the additional indebtedness incurred
has been properly
incurred under section 1008(a) of the Sub Debt
Indenture."
|
|
(c)
|
Section
2.2 is deleted and replaced by the
following:
|
"Credit A
is a revolving credit and the principal amount of any Advance under
Credit A that is repaid may be re-borrowed if the Borrowers are otherwise
entitled to an Advance under Credit A, except that re-borrowing under
Credit A3 is also subject to CHC providing the Agent with an opinion
of counsel
and other evidence satisfactory to the Agent that the re-borrowing
is in
compliance with the Sub Debt Indenture because the indebtedness incurred
by
re-borrowing has been properly incurred in compliance with section
1008(a) of
the Sub Debt Indenture."
-
256
-
3. Amendment
to Section 6.1 of the Existing Credit Agreement
The
last paragraph of Section 6.1.7 is deleted and replaced by the
following:
"In
addition, the Agent may excuse Obligors from delivering security
documents
covering types of Property that they do not own, if the security
documents they
deliver cover the types of Property they are permitted to own by
Schedule
J."
4. Amendments
and Consents Relating to Article X of the Existing Credit
Agreement
|
(a)
|
In
accordance with Section 10.1.1, the Lenders hereby confirm
their consent
to HSAS being released from its obligations as borrower
under the
Restricted Intercompany Obligation listed as item 2 on
Schedule K,
provided that Heliwest AS assumes the obligations of HSAS
as borrower and
HSAS guarantees the obligations assumed by Heliwest
AS.
|
|
(b)
|
Section
10.4.1(b) is deleted and replaced by the
following:
|
"CHC
shall, as soon as practicable and in any event within 60 days of
the end of each
of its fiscal quarters (including the fourth quarter, except that
90 days shall
be allowed for the fourth quarter), cause to be prepared and delivered
to the
Lenders, its interim unaudited consolidated financial statements
as at the end
of such quarter and interim unaudited unconsolidated financial statements
of
such Obligors as the Lenders may specify from time to time as at
the end of such
quarter, in each case including balance sheet, statement of income
and retained
earnings and statement of changes in financial position."
|
(c)
|
Section
10.4.1(e) is deleted and replaced by the
following:
|
"CHC
shall, as soon as practicable and in any event not later than 70
days after the
beginning of each of its fiscal years, cause to be prepared and delivered
to the
Lenders, a budget with projections for the current and the following
four fiscal
years. The budget shall cover CHC on a consolidated basis and other
Obligors designated by the Agent on an unconsolidated basis and shall
include a
projected income statement, a projected statement of changes in funds,
estimates
of Capital Expenditures, the value of Aircraft to be acquired through
Leases,
and tax losses and deferrals, and a list of all Material Contracts
expiring in
all relevant periods, all broken down quarterly for the current fiscal
year only
and annually thereafter, and otherwise in detail acceptable to the
Agent and the
Required Lenders."
-
257
-
|
(d)
|
Section
10.6.1(b)(iii) is deleted and replaced by the
following:
|
"payments
in respect of the obligations contemplated in Sections 1.1.114(k),
1.1.114(s),
1.1.114(t), 1.1.114(u), 1.1.114(w), 1.1.114(x), 1.1.115(j), 1.1.115(n)
and
1.1.115(p)"
|
(e)
|
Section
10.6.1(c)(v) is deleted and replaced by the
following:
|
"loans
and advances to CHC Composites Inc. in an aggregate amount of not
more than
$25,000,000 outstanding for all Obligors at any time, for as long
as the
Obligors maintain their ownership interest in CHC Composites Inc.
as it existed
on 1 June 2005"
|
(f)
|
In
accordance with Section 10.6.2(d), the Lenders hereby confirm
their
consent to CHC's consolidated budget for Capital Expenditures
for its
fiscal year ended 30 April 2006 of $425,000,000 as presented
to the
Lenders at their meeting with CHC's management in Vancouver,
British
Columbia on 30 August 2005.
|
|
(g)
|
Notwithstanding
Section 10.6.2(f), the Lenders hereby confirm their consent
to the sale by
CHC on or about 9 September 2005 of its direct
or
indirect shareholdings of Canadian Helicopters Limited
(representing
approximately 45% of the outstanding shares of Canadian
Helicopters
Limited), for gross proceeds of
$58,200,000, and the sale by
CHC on or about 29 December 2005 of its direct
or
indirect shareholdings of Inversiones Aereas S.L. (representing
approximately 38% of the outstanding shares of Inversiones
Aereas S.L.),
for gross proceeds of $39,600,000. The Lenders agree that the
sales shall not reduce the amount of other dispositions
permitted by
Section 10.6.2(f) but the Credits shall be permanently
repaid and
cancelled with the proceeds of the sale to the extent required
by Section
5.6.1 and Section 6.4.2.
|
|
(h)
|
The
Lenders also confirm their consent to CHC making dispositions
of Aircraft
pursuant to Section 10.6.2(f)(ii) of the Existing Credit
Agreement in an
amount up to $80,000,000 rather than $60,000,000, but only
in respect of
CHC's fiscal year ended 30 April
2006.
|
5. Amendments
to Schedules of the Existing Credit Agreement
|
(a)
|
Item
3 in Schedule C is deleted and replaced by the
following:
|
"Appendix
A attached is a report concerning the current location of all Aircraft
of the
Obligors. Not more than 15% of the aggregate
value of all Aircraft owned or leased by Obligors in the total fleet
of the
Obligors is located in or operated from a single jurisdiction other
than a
Primary Operating Jurisdiction. [Note: a report
concerning the specific location of each Aircraft (e.g. municipality)
within a
particular jurisdiction (e.g. province or country) is only required
annually,
but the jurisdiction must be reported quarterly. Identify each
Aircraft that is considered eligible to be included in the Borrowing
Base and
identify all changes from the previous report]"
-
258
-
|
(b)
|
Item
13 in Schedule C is deleted and replaced by the
following:
|
"Appendix
K attached contains details as of the Quarter End of the
outstanding Debt that has been incurred pursuant to Sections 1.1.114(u)
and
1.1.115(n) of the Credit Agreement, financial assistance given pursuant
to
Section 10.6.1(c)(v) and Section 10.6.1(c)(vi) of the
Credit Agreement, acquisitions made pursuant to Section 10.6.2(c)(ii)
and
Section 10.6.2(c)(iv) of the Credit Agreement, the amount expended
for Capital
Expenditures and acquisitions of Aircraft as contemplated in Section
10.6.2(d)
of the Credit Agreement and the amount of dispositions of Property
pursuant to
Section 10.6.2(f)(v) of the Credit Agreement."
|
(c)
|
Schedule
E to the Existing Credit Agreement is deleted and replaced
by Schedule E
attached to this agreement.
|
|
(d)
|
The
first paragraph of Schedule H is deleted and replaced by
the
following:
|
"The
"Borrowing Base" is the aggregate of item 14 minus item 17 minus
item 21 minus
item 22 below. The component items leading to the calculation are the
following:"
(e) Item
5 of Schedule H is deleted and replaced by the following:
"the
amount included in item 1 above that is (a) not owed to an Obligor and
payable in a Primary Operating Jurisdiction or (b) payable by an
account debtor
located in Brazil that has not provided an acknowledgment of the
Security in a
form satisfactory to the Agent"
(f) Item
10 of Schedule H is deleted and replaced by the following:
"the
amount included in item 7 above that represents inventory located
(a) outside of
a Primary Operating Jurisdiction or (b) in Brazil"
(g) Item
12 of Schedule H is deleted and replaced by the following:
"the
aggregate of the most recent appraised fair market values of the
Aircraft owned
by Obligors (as opposed to Aircraft under Lease from persons other
than
Obligors) that (i) are located in and operated from a Primary Operating
Jurisdiction, (ii) have registered first-ranking mortgages in place
as part of
the Security in the Primary Operating Jurisdiction in which they
are located,
(iii) are not subject to any lease that has priority over the mortgage
and (iv)
in the case of Aircraft located in Brazil, are owned by an Obligor
incorporated
in Canada, (all as described on Appendix A attached to the Reporting
Certificate)"
-
259
-
(h) Schedule
H is further amended by adding the following after the existing
provisions:
"22. The
amount, if any, by which the proportion of the Borrowing Base (calculated
without reference to this item 22) attributable to Property that
is the subject
of Security given under Brazilian law exceeds 20%"
|
(i)
|
Item
2 of Schedule J is deleted and replaced by the
following:
|
"None
of Pacific Aerospace Services Inc., Bond Rotary Wing Limited, Court
Helicopters
(Proprietary) Ltd. (formerly Court Republic Helicopters (Proprietary)
Ltd.),
Multifabs Survival Inc., Kirkhill Limited, Scotia Helicopter Services
Limited
and 0733526 BC Ltd. shall carry on any business or own any
Property. Heli-One Inc. (which was incorporated on 19 May 2005 as
corporation no. 430261-3) shall not carry on any business or own
any property,
except momentarily as part of a "butterfly" transaction with various
Obligors,
following which it shall be dissolved, by which time its name will
have been
changed and an Obligor will have taken on its current name."
|
(j)
|
Items
8 and 13 of Schedule J are deleted.
|
|
(k)
|
Section
1 of Schedule L is deleted and replaced by the
following:
|
"Notwithstanding
anything contained in this Agreement, unless the Required Lenders
and CHC
otherwise agree, CHC shall ensure that at all times not more than
15% of the
aggregate value of all Aircraft owned or leased by Obligors in the
total fleet
of the Obligors are located in or operated from any single jurisdiction
other
than a Primary Operating Jurisdiction."
6. Conditions
Precedent
|
(a)
|
The
effectiveness of the amendments in sections 2 and 5(c)
of this agreement
is subject to CHC paying an up-front fee of $120,000 to
the Agent in
respect of the increase in Credit A, which the Agent shall
distribute to
the Lenders in proportion to their respective Commitments
to the increased
amount, and to CHC providing the Agent with an opinion
of counsel and
other evidence satisfactory to the Agent that the increase
in the amount
of Credit A1 is in compliance with the Sub Debt Indenture
because the
additional indebtedness incurred is properly classified
as being incurred
under section 1008(b)(i) or (xii) of the Sub Debt
Indenture.
|
-
260
-
|
(b)
|
The
Lenders' consent in section 4(a) of this agreement is subject
to the Agent
being satisfied, in consultation with legal counsel, that
all
documentation has been put in place to provide the Lenders
with security
relating to the assumed Restricted Intercompany Obligation
authorized in
that section that is comparable to the security held in
connection with
the existing security for Restricted Intercompany
Obligations.
|
7. Representations
of Obligors
The
Obligors acknowledge that this agreement is a Loan Document and that
all of
their representations and warranties concerning Loan Documents that
are
contained in the Existing Credit Agreement apply to this agreement
and are
deemed to be repeated on their execution of this agreement as if
set out in full
in this agreement. The Obligors also represent that there are no
consents or other agreements required from third parties to avoid
this agreement
causing a breach or default under any other agreement to which any
Obligor is a
party.
8. Ratification
and Confirmation
The
Existing Credit Agreement, as amended by this agreement, remains
in full force
and effect and is hereby ratified and confirmed. The parties confirm
that none of the Advances has been repaid or replaced by new obligations
as a
result of this agreement. This agreement merely amends the Existing
Credit Agreement and does not constitute or result in a novation
or rescission
of the Existing Credit Agreement or any other Loan Document. Without
in any way limiting the terms of the Existing Credit Agreement or
the other Loan
Documents, the Obligors confirm that the existing Security shall
continue to
secure all of the Obligations (or any limited part thereof described
in a
particular document forming part of the Security), including but
not limited to
any arising as a result of this agreement.
9. Counterparts
and Facsimile
This
agreement may be executed in any number of counterparts, each of
which when
executed and delivered shall be deemed to be an original, and such
counterparts
together shall constitute one and the same agreement. The delivery of
a facsimile copy of an executed counterpart of this agreement shall
be deemed to
be valid execution and delivery of this agreement, but the party
delivering a
facsimile copy shall deliver an original copy of this agreement as
soon as
possible after delivering the facsimile copy.
[Note: signature
pages follow]
-
261
-
IN
WITNESS OF WHICH, the parties have executed this agreement.
THE
BANK OF NOVA SCOTIA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXXX
XXXX XX XXXXXX
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
263
-
BANK
OF MONTREAL
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
264
-
HSBC
BANK CANADA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
265
-
BANK
OF AMERICA, N.A.
Canada
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
266
-
SOCIETE
GENERALE (CANADA)
By:
____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
268
-
NORDEA
BANK NORGE ASA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
269
-
NORDEA
BANK FINLAND PLC, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXXX
XXXXX XXXX, X.X.,
Xxxxxxx
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
271
-
THE
BANK OF NOVA SCOTIA,
as
Agent
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
272
-
______________________________ ______________________________
Name: Name:
each
signing in his capacity as an authorized officer or director or holder
of a
subsisting power of attorney of each of the Obligors other than CHC
Helicopters
(Barbados) Limited, CHC Leasing (Barbados) Limited, CHC Capital (Barbados)
Limited, Heli-One (Europe) AS (formerly Vinland Holding AS and Heli-One
Norway
AS), Helicopter Services Group AS, CHC Helikopter Service AS, Integra
Leasing
AS, Heliwest AS, Heli-One (Norway) AS (formerly Astec Helicopter
Services AS)
and Scancopter AS, and not in his personal capacity.
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
273
-
CHC
HELICOPTERS
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
LEASING
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
CAPITAL
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
274
-
|
HELI-ONE
(EUROPE) AS (formerly
Vinland
Holding AS and Heli-One Norway AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:______________________________
Name
Title:
|
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
275
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELI-ONE
(NORWAY) AS, (formerly Astec Helicopter Services AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for Fourth Amending Agreement dated as of 19 June 2006 relating
to CHC
Helicopter Corporation et al]
-
276
-
SCHEDULE
E
APPLICABLE
PERCENTAGES OF LENDERS
[Note:
Applicable Percentages are nil unless otherwise noted]
THE
BANK OF NOVA SCOTIA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
35.781714%
Credit
A2 (adjusted in accordance with Section 8.2) - 100%
Credit
A (overall) - 41.247100%
Credit
C - 41.247100%
Credit
E - 41.000000%
NATIONAL
BANK OF CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
19.638567%
Credit
A (overall) - 17.967200%
Credit
C - 17.967200%
Credit
E - 17.000000%
BANK
OF MONTREAL
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
10.801256%
Credit
A (overall) - 9.882000%
Credit
C - 9.882000%
Credit
E - 9.000000%
HSBC
BANK CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
10.212116%
Credit
A (overall) - 9.343000%
Credit
C - 9.343000%
Credit
X - 0.000000%
XXXX
XX XXXXXXX, X.X., Xxxxxx Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
7.855449%
Credit
A (overall) - 7.186900%
Credit
C - 7.186900%
Credit
E - 7.186900%
SOCIETE
GENERALE (CANADA)
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.891614%
Credit
A (overall) - 5.390200%
Credit
C - 5.390200%
Credit
E - 5.390200%
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.891614%
Credit
A (overall) - 5.390200%
Credit
C - 5.390200%
Credit
E - 5.390200%
NORDEA
BANK NORGE ASA
Credit
B1 (adjusted in accordance with Section 9.2) - 100%
Credit
B (overall) - 70.539999%
NORDEA
BANK FINLAND PLC
Credit
B2 (adjusted in accordance with Section 8.2) - 100%
Credit
B (overall) - 29.460001%
JPMORGAN
CHASE BANK N.A., Toronto Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
3.927670%
Credit
A (overall) - 3.593400%
Credit
C - 3.593400%
Credit
E - 3.593400%
-
278
-
FINAL
THIS
FIFTH AMENDING AGREEMENT is made as of 12 September 0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION
AND
THE OTHER OBLIGORS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT AS DEFINED BELOW
-
and -
THE
LENDERS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties to a second amended
and restated
credit agreement dated as of 22 December 2004, which amended and
restated a
credit agreement dated as of 5 July 2000, which in turn amended and
restated a credit agreement dated as of 2 August 1999, each of which
was amended and supplemented on various occasions before being
amended and
restated. The second amended and restated credit agreement has been
amended by an amending agreement dated as of 2 February 2005, a
second amending
agreement dated as of 11 March 2005, a third amending agreement
dated as of 10
June 2005 and a fourth amending agreement dated as of 19 June 2006,
and as
amended and supplemented to date is referred to in this agreement
as the
"Existing Credit Agreement."
B. The
Existing Credit Agreement contemplates that it may be amended. The
parties are entering into this agreement to record various amendments
that have
been agreed to between them since the date of the fourth amending
agreement in
connection with, among other things, changes in CHC's accounting
policies.
C. Capitalized
terms used in this agreement and not otherwise defined have the
meanings defined
in the Existing Credit Agreement.
THEREFORE,
for value received, and intending to be legally bound by this agreement,
the
parties agree as follows:
1. Amendments
and Consent Relating to Article X of the Existing Credit
Agreement
|
(a)
|
The
last paragraph in Section 10.4.1 is deleted and replaced
by the
following:
|
-
279
-
"If
there is any change in a subsequent period from the accounting
policies,
practices and calculation methods used by CHC in preparing its
financial
statements for its fiscal year ended 30 April 2006, or components
thereof, CHC
shall provide the Lenders with all information that the Lenders
require to
ensure that reports provided to the Lenders after any change are
comparable to
previous reports. In addition, all calculations made for the purposes
of this Agreement shall continue to be made based on the accounting
policies,
practices and calculation methods that were used in preparing CHC's
financial
statements for its fiscal year ended 30 April 2006 if the changed
policies,
practices and methods would materially affect the results of those
calculations."
The
Lenders acknowledge that CHC has changed its accounting policies
concerning the
calculation of expenses for maintenance, repair and overhaul costs
on major
components and concerning the classification of repairable parts
(as capital
assets rather than inventory) effective as of 31 January 2006 and
has made prior
period restatements as appropriate to reflect these changes.
|
(b)
|
Section
10.6.1(c)(v) is deleted and replaced by the
following:
|
"loans
and advances to CHC Composites Inc. in an aggregate amount of not
more than
$50,000,000 outstanding for all Obligors at any time (of which
not more than
$25,000,000 is advanced after 22 December 2004), for as long as
the Obligors
maintain their ownership interest in CHC Composites Inc. as it
existed on 1 June
2005"
|
(c)
|
In
accordance with Section 10.6.2(d), the Lenders hereby
confirm their
consent to CHC's consolidated budget for Capital Expenditures
for its
fiscal year ending 30 April 2007 of
$575,000,000.
|
2. Amendments
to Schedule H of the Existing Credit Agreement
|
(a)
|
Item
7 of Schedule H is deleted and replaced by the
following:
|
"the
aggregate amount of the entries that (i) would, in accordance with
GAAP, be
classified on a consolidated balance sheet as inventory of CHC,
valued at the
lower of cost or fair market value or (ii) are repairable parts
that would have
been classified as inventory in accordance with CHC's accounting
policies as of
30 April 2004 but are classified as capital assets on a consolidated
balance
sheet of CHC in accordance with GAAP and its accounting policies
as of 30 April
2006, valued at their net book value"
(b) Item
8 of Schedule H is deleted and replaced by the following:
-
280
-
"the
amount included in item 7 above that represents obsolete
Property"
(c) Item
10 of Schedule H is deleted and replaced by the following:
"the
amount included in item 7 above that represents Property located
(a) outside of
a Primary Operating Jurisdiction or (b) in Brazil"
3. Condition
Precedent
The
effectiveness of this agreement is subject to CHC paying an work
fee of $7500
for each Lender to the Agent, which the Agent shall promptly distribute
to the
Lenders.
4. Representations
of Obligors
The
Obligors acknowledge that this agreement is a Loan Document and
that all of
their representations and warranties concerning Loan Documents
that are
contained in the Existing Credit Agreement apply to this agreement
and are
deemed to be repeated on their execution of this agreement as if
set out in full
in this agreement. The Obligors also represent that there are no
consents or other agreements required from third parties to avoid
this agreement
causing a breach or default under any other agreement to which
any Obligor is a
party.
5. Ratification
and Confirmation
The
Existing Credit Agreement, as amended by this agreement, remains
in full force
and effect and is hereby ratified and confirmed. The parties confirm
that none of the Advances has been repaid or replaced by new obligations
as a
result of this agreement. This agreement merely amends the Existing
Credit Agreement and does not constitute or result in a novation
or rescission
of the Existing Credit Agreement or any other Loan Document. Without
in any way limiting the terms of the Existing Credit Agreement
or the other Loan
Documents, the Obligors confirm that the existing Security shall
continue to
secure all of the Obligations (or any limited part thereof described
in a
particular document forming part of the Security), including but
not limited to
any arising as a result of this agreement.
6. Counterparts
and Facsimile
This
agreement may be executed in any number of counterparts, each of
which when
executed and delivered shall be deemed to be an original, and such
counterparts
together shall constitute one and the same agreement. The delivery of
a facsimile copy of an executed counterpart of this agreement shall
be deemed to
be valid execution and delivery of this agreement, but the party
delivering a
facsimile copy shall deliver an original copy of this agreement
as soon as
possible after delivering the facsimile copy.
[signature
pages follow]
-
281
-
IN
WITNESS OF WHICH, the parties have executed this agreement.
THE
BANK OF NOVA SCOTIA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXXX
XXXX XX XXXXXX
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
283
-
BANK
OF MONTREAL
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
284
-
HSBC
BANK CANADA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
285
-
BANK
OF AMERICA, N.A.
Canada
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
286
-
SOCIETE
GENERALE (CANADA)
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
288
-
NORDEA
BANK NORGE ASA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
289
-
NORDEA
BANK FINLAND PLC, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
000
-
XXXXXXXX
XXXXX XXXX, X.X.,
Xxxxxxx
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
291
-
THE
BANK OF NOVA SCOTIA,
as
Agent
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
292
-
______________________________ ______________________________
Name: Name:
each
signing in his capacity as an authorized officer or director or
holder of a
subsisting power of attorney of each of the Obligors other than
CHC Helicopters
(Barbados) Limited, CHC Leasing (Barbados) Limited, CHC Capital
(Barbados)
Limited, Heli-One (Europe) AS (formerly Vinland Holding AS and
Heli-One Norway
AS), Helicopter Services Group AS, CHC Helikopter Service AS, Integra
Leasing
AS, Heliwest AS, Heli-One (Norway) AS (formerly Astec Helicopter
Services AS)
and Scancopter AS, and not in his personal capacity.
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
293
-
CHC
HELICOPTERS
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
LEASING
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
CAPITAL
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
294
-
|
HELI-ONE
(EUROPE) AS (formerly
Vinland
Holding AS and Heli-One Norway AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:______________________________
Name
Title:
|
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
295
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELI-ONE
(NORWAY) AS, (formerly Astec Helicopter Services AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for Fifth Amending Agreement dated as of 12 September 2006
relating to CHC
Helicopter Corporation et al]
-
296
-
FINAL
BLG
/ JWM
THIS
SIXTH AMENDING AGREEMENT is made as of 9 March 0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION
AND
THE OTHER OBLIGORS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT AS DEFINED BELOW
-
and -
THE
LENDERS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties to a second amended
and restated
credit agreement dated as of 22 December 2004, which amended and
restated a
credit agreement dated as of 5 July 2000, which in turn amended and
restated a credit agreement dated as of 2 August 1999, each of which
was amended and supplemented on various occasions before being
amended and
restated. The second amended and restated credit agreement has been
amended by amending agreements dated as of 2 February 2005, 11
March 2005, 10
June 2005, 19 June 2006 and 12 September 2006, and as amended and
supplemented
to date is referred to in this agreement as the "Existing Credit
Agreement."
B. The
Existing Credit Agreement contemplates that it may be amended. The
parties are entering into this agreement to amend the Existing
Credit Agreement
by, among other things, increasing the amount of certain Credits
and amending
the Borrowing Base. Various affiliates or other branches of Lenders
are becoming Lenders in order to fund part of the increased amount
of Credit
B1.
C. Capitalized
terms used in this agreement and not otherwise defined have the
meanings defined
in the Existing Credit Agreement.
THEREFORE,
for value received, and intending to be legally bound by this agreement,
the
parties agree as follows:
1. Amendments
Relating to Article I of the Existing Credit Agreement
|
(a)
|
Section
1.1.2 is deleted and replaced by the
following:
|
-
297
-
"Adjusted
Total Debt Ratio" means, at any time, the ratio calculated by dividing
(a) the Total Debt plus, without duplication, the Asset Value Guarantee
Exposure if any plus, for any Lease to which an Obligor is a party
that is not
included within Total Debt, the least of (i) 6.6 times the total of all
payments made in respect of the Lease during CHC's four most recently
completed
fiscal quarters, (ii) the aggregate of all remaining payments during the
term of the Lease and any purchase option or other payment due
on termination of
the Lease, and (iii) the purchase option price at which the Obligor could
at that time promptly acquire the full residual title to the property
subject to
the Lease, free of the Lease, by (b) the aggregate of EBITDA plus (to the
extent not included in EBITDA) the total of all payments made by
Obligors in
respect of Leases, in each case for CHC's four most recently completed
fiscal
quarters.
|
(b)
|
Section
1.1.11 is deleted and replaced by the
following:
|
"Approved
Currencies" means (a) Canadian Dollars, US Dollars, Euros and British
Pounds,
(b) in respect of Credits A1, A3 and B only, Norwegian Kroner,
and (c) other
currencies to be specified from time to time and agreed to by all
Lenders
requested to make Advances in those currencies, which are readily
available to
those Lenders and are freely transferable into US Dollars, and
in which the
Obligors have significant revenues, and "Approved Currency" means
any one of
them.
|
(c)
|
Section
1.1.21 is deleted and replaced by the
following:
|
"Base
Rate" means, on any day,
|
|
(a)
|
for
a Base Rate Advance in US Dollars under Credit A, Credit
B1, Credit C or
Credit E, the greater of (i) the average of the annual
rates of interest
(expressed as a percentage per annum on the basis of
a 360 day year)
announced by the Schedule I Reference Lenders on that
day as their
respective reference rates for commercial loans made
in Canada in US
Dollars and (ii) the Federal Funds Effective Rate plus
0.5% per
annum;
|
|
|
(b)
|
for
a Base Rate Advance by Nordea under Credit B2, the rate
per annum equal to
Nordea's offered rate (based on its cost of funding)
for loans in the
applicable Approved Currency;
|
|
|
(c)
|
for
any other Base Rate Advance, the average of the offered
rates (based on
cost of funding) of the Schedule I Reference Lenders
on that day for loans
in the applicable Approved
Currency."
|
-
298
-
|
(d)
|
Section
1.1.25 is deleted and replaced by the
following:
|
"Branch
of Account" means the WBO - Loan Operations department of BNS at
3rd Floor,
000 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0. In addition,
the Agent may by notice to CHC and the Lenders from time to time
designate other
addresses as the Branch of Account and may designate different
addresses as the
Branch of Account for different purposes.
|
(e)
|
Section
1.1.43 is deleted and replaced by the
following:
|
"Credit
A" means, collectively, the credit of up to US
$250,000,000 or the equivalent thereof in relevant Approved Currencies,
comprised of credits designated as "Credit A1," "Credit A2" and
"Credit A3", which is more particularly described in Article
II.
|
(f)
|
Section
1.1.45 is deleted and replaced by the
following:
|
"Credit
B" means, collectively, the credit of up to GBP
30,000,000
or the equivalent thereof in relevant Approved Currencies, comprised
of credits
designated as "Credit B1" and "Credit B2", which is more particularly
described in Article III.
|
(g)
|
The
last paragraph of Section 1.1.53 (definition of "Debt")
is deleted and
replaced by the following:
|
provided
that (i) trade payables and accrued liabilities that are current
liabilities
incurred in the ordinary course of business and (ii) any contingent
liability
arising from the possibility of being required to re-acquire contracts
for the
purchase of Aircraft that have been transferred to prospective
operating lessors
(for as long as the liability remains only a contingency), do not
constitute
Debt.
|
(h)
|
The
last paragraph of Section 1.1.59 (definition of "EBITDA")
is deleted and
replaced by the following:
|
"all
of which shall be calculated in accordance with GAAP unless otherwise
expressly
described. If CHC has established a new Obligor or has disposed of an
Obligor or material property out of the ordinary course of business
during the
relevant period, EBITDA shall be adjusted on a basis satisfactory
to the
Required Lenders as if the new Obligor had been an Obligor during
the entire
period or the disposition had occurred at the beginning of the
period. CHC may continue to include in calculating EBITDA amounts
relating to any Obligor that would otherwise constitute EBITDA,
notwithstanding
that they are classified as income from discontinued operations
as a result of
CHC holding the Obligor for sale but, following completion of the
sale, the
calculation of EBITDA shall exclude all amounts relating to the
Obligor that has
been sold, including amounts arising before completion of the
sale."
-
299
-
|
(i)
|
Section
1.1.62 is deleted and replaced by the
following:
|
"European
Borrowers" means CHC Scotia, Heli-One (UK) Limited (formerly Brintel
Holdings
Limited), Heliworld Leasing Limited, Helicopter Services Group
AS, Heli-One
(Norway) AS (formerly Astec Helicopter Services AS), Heliwest AS,
CHC Helikopter
Service AS, Capital Aviation Services B.V., CHC Helicopters Netherlands
B.V.
(formerly Xxxxxxxxx NorthSea Helicopters B.V.), Heli-One Netherlands
B.V.
(formerly Handelmaatschappij Xxxxxxxxx & Co. B.V.), Heli-One Components B.V.
(formerly Xxxxxxxxx Components B.V.) and any other European Obligor
that may be
designated by CHC as a European Borrower from time to time with
the consent of
the Required Lenders and after delivery of such guarantees and
other Security as
the Required Lenders may reasonably require.
|
(j)
|
Section
1.1.89 is deleted and replaced by the
following:
|
"Lease"
means (a) any arrangement by which an Obligor obtains the use of
an Aircraft of
which it is not the owner for a term of more than 12 months, including
rights of
renewal, in exchange for payment to a person other than an Obligor,
including a
capital lease, an operating lease, a synthetic lease, the lease
aspect of a sale
and leaseback transaction and the "lease in" aspect of a "lease
out, lease in"
transaction, and (b) each of the leasebacks arising from the anticipated
sale
and leaseback transactions involving the Obligors' properties at
Agar Drive,
Richmond, B.C. and Boundary Bay, B.C.
|
(k)
|
Section
1.1.92 is deleted and replaced by the
following:
|
"LIBO
Rate" means, for any LIBOR Period and LIBOR Advance, the average
of the interest
rates expressed as a percentage per annum on the basis of a 360 day
year (or 365 day year in the case of British Pounds) at which deposits
in the
relevant Approved Currency are offered by the principal offices
of the
Schedule I Reference Lenders in London, England in the London
interbank market at 11:00 a.m. London time two Business Days before
the first day of the LIBOR Period for a period equal to the LIBOR
Period and in
an amount approximately equal to the amount of the LIBOR Advance.
-
300
-
|
(l)
|
Section
1.1.114(n) (part of definition of "Permitted Encumbrances")
is deleted and
replaced by the following:
|
"Leases
of Aircraft that are operating leases or that were operating leases
when entered
into but are subsequently reclassified under GAAP as capital
leases."
|
(m)
|
Section
1.1.132 is deleted and replaced by the
following:
|
"Schedule
I Reference Lenders" means Lenders that have been designated as
such or deemed
to be Schedule I Reference Lenders in accordance with Section 8.12.
2. Amendments
Relating to Article II of the Existing Credit Agreement
|
(a)
|
Section
2.1.1 is deleted and replaced by the
following:
|
"Upon
and subject to the terms and conditions of this Agreement, the
Credit A
Lenders agree to provide a credit for the use of CHC in the amount
of up to
US $250,000,000 or the equivalent thereof in other relevant Approved
Currencies, which is referred to collectively as Credit A and is comprised
of the following tranches:
(i)
Credit A1 (which is also for the use of the Additional Borrowers) in an
amount equal to US $230,000,000 less the US Dollar equivalent of
the maximum
amount of Credit A3;
(ii)
Credit A2 (which is also for the use of the Overdraft Borrowers) in the
amount of US $20,000,000;
(iii)
Credit A3 (which is also for the use of the Additional Borrowers to the
extent the Advances to CHC contemplated in Section 10.10(e) are
repaid) in the
amount of US $105,000,000 plus Cdn. $65,000,000.
Subject
to Section 8.1, Advances under Credit A1 and Credit A3 will be made by the
Credit A Lenders and Advances under Credit A2 will be made by
BNS."
|
(b)
|
Section
2.2 is deleted and replaced by the
following:
|
"Subject
to the following, Credit A is a revolving credit and the principal amount
of any Advance under Credit A that is repaid may be re-borrowed if the
Borrowers are otherwise entitled to an
-
301
-
Advance
under Credit A. Rollovers of LIBOR Advances and conversions of
LIBOR Advances to Base Rate Advances (and vice versa) are permitted
under Credit
A3 as long as the Borrower is CHC or is the same Borrower if CHC
is not the
Borrower and the principal amounts of the Advances rolled over
or converted do
not change. Rollovers of Bankers’ Acceptances, conversions of
Bankers’ Acceptances to Prime Rate Advances (and vice versa), and conversions
of
Advances in one Approved Currency to another Approved Currency
are permitted
under Credit A3 as long as the Borrower is CHC or is the same Borrower
if CHC is
not the Borrower and the principal amounts of the Advances rolled
over or
converted (or the equivalent thereof in US Dollars) do not
increase. Other Advances under Credit A3 are also subject to CHC
providing the Agent with an opinion of counsel and other evidence
satisfactory
to the Agent that the re-borrowing is in compliance with the Sub
Debt Indenture
because the indebtedness incurred by re-borrowing has been properly
incurred in
compliance with section 1008(a) of the Sub Debt Indenture."
|
(c)
|
Section
2.4 is deleted and replaced by the
following:
|
"The
maximum principal amount of Credit A shall be permanently reduced
to
US $235,000,000 or the equivalent thereof in other relevant Approved
Currencies on or before 31 July 2007 and outstanding Advances in
excess of that
amount shall be repaid. At that time, Credit A1 shall be reduced by
US $15,000,000. Upon any such reduction on or before 31 July 2007,
unless a Default has occurred and is continuing, the repayment
or reduction
shall be applied so as to restore the Applicable Percentages of
the Credit A
Lenders before the increase in Credit A on or about 9 March 2007
(taking into
account any subsequent assignment by any Credit A
Lender). Credit A shall, in any event, be repaid in full and
cancelled on or before 22 December 2007."
|
(d)
|
The
first paragraph of Section 2.5 is deleted and replaced
by the
following:
|
"Interest
on Prime Rate Advances shall be the Prime Rate plus 0.125% per
annum. Interest on Base Rate Advances shall be the Base Rate for the
relevant Approved Currency plus 0.125% per annum if the Base Rate
is calculated
in accordance with Section 1.1.21(a) or plus 1.125% per annum if
the Base Rate
is calculated in accordance with Section 1.1.21(c). The Bankers'
Acceptance Fee and fee for L/Cs shall be 1.125% per annum. Interest
on LIBOR Advances shall be the relevant LIBO Rate plus 1.125% per
annum."
-
302
-
3. Amendments
Relating to Article III of the Existing Credit Agreement
|
(a)
|
Section
3.1.1 is deleted and replaced by the
following:
|
"Upon
and subject to the terms and conditions of this Agreement, the
Credit B Lenders
agree to provide a credit for the use of the European Borrowers
in the amount of
up to GBP 30,000,000 or the equivalent thereof in other relevant
Approved
Currencies which is referred to collectively as Credit B and is
comprised of a
tranche of GBP 28,000,000 referred to as Credit B1 and a tranche
of GBP
2,000,000 referred to as Credit B2. Subject to Section 8.1, Advances
under Credit B1 will be made by the Credit B Lenders and Advances
under Credit
B2 will be made by Nordea."
|
(b)
|
Section
3.4 is deleted and replaced by the
following:
|
"The
maximum principal amount of Credit B1 shall be permanently reduced
to GBP
4,788,866 or the equivalent thereof in other relevant Approved
Currencies on or
before 31 July 2007 and outstanding Advances in excess of that
amount shall be
repaid. Upon any such reduction on or before 31 July 2007, unless a
Default has occurred and is continuing, the repayment or reduction
shall be
applied so as to restore the Applicable Percentages of the Credit
B Lenders
before the increase in Credit B on or about 9 March 2007 (taking
into account
any subsequent assignment by any Credit B Lender). Credit B
shall, in any event, be repaid in full and cancelled on or before
22 December
2007."
|
(c)
|
The
first paragraph of Section 3.5 is deleted and replaced
by the
following:
|
"Interest
on Base Rate Advances shall be the Base Rate for the relevant Approved
Currency
plus 0.125% per annum if the Base Rate is calculated in accordance
with Section
1.1.21(a) or plus 1.125% per annum if the Base Rate is calculated
in accordance
with Section 1.1.21(b) or (c). The fee for L/Cs shall be 1.125% per
annum. Interest on LIBOR Advances shall be the relevant LIBO Rate
plus 1.125% per annum."
4. Amendment
Relating to Article IV and Article V of the Existing Credit
Agreement
The
first paragraph of each of Section 4.5 and Section 5.5 is deleted
and replaced
by the following:
"Interest
on Prime Rate Advances shall be the Prime Rate plus 0.125% per
annum. Interest on Base Rate Advances shall be the Base Rate for the
relevant Approved Currency plus 0.125% per annum if the Base Rate
is calculated
in accordance with Section 1.1.21(a) or plus 1.125% per annum if
the Base Rate
is calculated in accordance with Section 1.1.21(c). The Bankers'
Acceptance Fee shall be 1.125% per annum. Interest on LIBOR Advances
shall be the relevant LIBO Rate plus 1.125% per annum."
-
303
-
5. Amendment
Relating to Article VI of the Existing Credit Agreement
Section
6.4.1 is deleted and replaced by the following:
"CHC
shall ensure that the Borrowing Base is at all times equal to at
least the
aggregate of (a) the principal amount of all Advances outstanding,
(b) the
absolute value of the aggregate Market Value of all Swaps that
are Other Secured
Obligations and that have a negative Market Value from the Obligors'
perspective
after offsetting the Market Value of Swaps with the same or another
Lender that
are Other Secured Obligations and that have a positive Market Value
and (c) an
amount representing the exposure in respect of Other Secured Obligations
that
are not Swaps, calculated on a basis agreed to by the Required
Lenders. The Borrowers shall not be entitled to receive Advances that
would result in the Borrowing Base being less than the aggregate
of those
amounts and shall immediately repay Advances or post Cash Collateral
to the
extent that the Borrowing Base is ever less than the aggregate
of those amounts,
but CHC may submit a new calculation of its Borrowing Base from time to time
between submissions of its Reporting Certificates."
6. Amendment
Relating to Article VIII of the Existing Credit Agreement
Section
8.12 is amended by adding the following after the existing
provisions:
"Notwithstanding
the foregoing provisions of this Section 8.12, the Agent and CHC
may agree that
Lenders that are not banks named on Schedule I of the Bank Act (Canada)
shall be Schedule I Reference Lenders and that there shall be different
Schedule
I Reference Lenders for different purposes. The Agent and CHC agree
that, as of 9 March 2007, the Schedule I Reference Lenders for
Advances in NOK
shall be BNS, National Bank of Canada and Nordea Bank Norge ASA
and for other
Advances shall be BNS, National Bank of Canada and Bank of
Montreal."
7. Amendments
and Consents Relating to Article X of the Existing Credit
Agreement
|
(a)
|
Notwithstanding
Section 10.6.1(a), the Lenders hereby consent to one
or more Obligors
entering into the leaseback transactions referred to
in section 7(b)(ii)
of this agreement.
|
|
(b)
|
Notwithstanding
Section 10.6.2(f), the Lenders hereby consent
to:
|
|
|
(i)
|
the
sale of the Capital Stock or Property of Survival-One
Limited;
and
|
-
304
-
|
|
(ii)
|
sale
and leaseback transactions on commercially reasonable
terms involving the
Obligors' properties at Agar Drive, Richmond, B.C. and
Boundary Bay,
B.C.
|
The
Lenders agree that the sales shall not reduce the amount of other
dispositions
permitted by Section 10.6.2(f) of the Existing Credit Agreement
but the Credits
shall be permanently repaid and cancelled with the proceeds of
the sales to the
extent required by Section 5.6.1 and Section 6.4.2 of the Existing
Credit
Agreement.
|
(c)
|
Section
10.6.2(f)(iii) is deleted and replaced by the
following:
|
"transactions
that involve Aircraft that are purchased and then sold and leased
back (or
leased out and leased in) under operating leases within the lesser
of 365 days
and the time permitted under the Sub Debt Indenture (being 270
days at 22
December 2004) after purchase"
|
(d)
|
Section
10.10 is deleted and replaced by the
following:
|
"In
connection with section 1008(c) of the Sub Debt Indenture, CHC
hereby:
|
|
(a)
|
agrees
that Advances under Credits C and E are classified as
being incurred under
section 1008(b)(i) of the Sub Debt
Indenture;
|
|
|
(b)
|
represents
that, pursuant to section 1008(d) of the Sub Debt Indenture,
the Advances
under Credit C and E following the payments made on 31
January 2007 are
equivalent to USD 52,743,000 and that the conversion
rates to US Dollars
applicable to non-USD Advances pursuant to section 1008(d)
of the Sub Debt
Indenture are as follows:
|
|
Credit
|
GBP
|
EUR
|
CAD
|
NOK
|
|
A1
and A2 (5 July 2000)
|
1.5119
|
0.9547
|
1.4907
|
0.1165
|
|
B1
and B2 (16 July 2001)
|
1.4013
|
0.8550
|
1.5397
|
0.1071
|
|
C
(2 August 1999)*
|
1.6176
|
1.0680
|
1.4945
|
0.1291
|
|
E
(16 Feb. 2004)
|
1.8883
|
1.2772
|
1.3147
|
0.1441
|
|
|
*2
August 1999 is the date of the credit agreement pursuant
to which Credit C
was established, but that date was a bank holiday, so
the rates are taken
from 3 August 1999
|
-
305
-
|
|
(c)
|
represents
that, on at least one Business Day on or after 22 March
2005 (the date of
the issuance of additional notes under the Sub Debt Indenture)
and before
the transfer of Advances under Section 10.10(e)(i), the
aggregate
principal balance of Advances under Credit A1 was not
more than the
balance of Advances under Credit A1 remaining after that
transfer;
|
|
|
(d)
|
represents
that, as of 9 March 2007, no Indebtedness (as defined
in the Sub Debt
Indenture) other than Advances has been classified as
being incurred under
section 1008(b)(i) of the Sub Debt Indenture and the
basket for
Indebtedness of USD 200,000,000 under section 1008(b)(i)
has not been
reduced as contemplated in that
section;
|
|
|
(e)
|
(i)
requests that the sums of US $65,000,000 and Cdn. $65,000,000
that were
outstanding by way of LIBOR Advances and Bankers’ Acceptances,
respectively, under Credit A1 as of 9 March 2007
(and that were made after 22 March 2005) be considered
as outstanding
under Credit A3 (and the Lenders hereby consent to that
request), (ii)
classifies those sums and the sum of USD 40,000,000 outstanding
as of 9
March 2007 under Credit A3, including rollovers of LIBOR
Advances and
conversions of LIBOR Advances to Base Rate Advances (and
vice versa) that
are permitted under Section 2.2 without delivering an
opinion of counsel,
as being incurred in compliance with section 1008(a)
of the Sub Debt
Indenture, and (iii) classifies rollovers of Bankers’ Acceptances,
conversions of Bankers’ Acceptances to Prime Rate Advances (and vice
versa), and conversions of Advances in one Approved Currency
to another
Approved Currency that are permitted under Section 2.2
without delivering
an opinion of counsel, as being incurred in compliance
with section
1008(b)(xiii) of the Sub Debt
Indenture;
|
|
|
(f)
|
agrees
that, except for Advances under Credit A3, all Advances
are classified as
being incurred under section 1008(b)(i) of the Sub Debt
Indenture until
all amounts permitted to be incurred under section 1008(b)(i)
have been
incurred;
|
|
|
(g)
|
(i)
agrees that any Advances that are not classified as being
incurred under
section 1008(a) or 1008(b)(i) of the Sub Debt Indenture
shall be
classified as being incurred under section 1008(b)(xii)
of the Sub Debt
Indenture, and (ii) represents that, following the increase
of Credit A3
and reclassification of Advances on 9 March 2007, no
Advances are
classified as being incurred under section 1008(b)(xii)
and no Advances
will be classified under that section unless differences
between the
Exchange Rate and the exchange rates specified in Section
10.10(b) result
in the US Dollar equivalent of Advances as calculated
for the purposes of
the Sub Debt Indenture being greater than the equivalent
of Advances as
calculated for the purposes of this
Agreement;
|
-
306
-
|
|
(h)
|
represents
that the only Borrowers that are Non-Guarantor Restricted
Subsidiaries (as
defined in the Sub Debt Indenture) are Helicopter Services
Group AS,
Heli-One (Norway) AS (formerly Astec Helicopter Services
AS), Heliwest AS
and CHC Helikopter Service AS, and represents that, as
of 9 March 2007,
the only Indebtedness (as defined in the Sub Debt Indenture)
incurred by
Non-Guarantor Restricted Subsidiaries pursuant to sections
1008(b)(i) and
1008(b)(xii) of the Sub Debt Indenture, is any Indebtedness
under a
revolving credit facility with Nordea Bank Norge ASA
that does not exceed
an aggregate principal amount of NOK
5,000,000.
|
|
|
(i)
|
agrees
that (i) it shall not classify any Indebtedness (as defined
in the Sub
Debt Indenture), except for Advances, as being incurred
under section
1008(b)(i) of the Sub Debt Indenture, except to the extent
that the
maximum amount of Advances available under the Credits
other than Credit
A3 is less than the amount of Indebtedness then permitted
to be incurred
under that section and (ii) it shall not classify any
Indebtedness, except
for Advances, as being incurred under section 1008(b)(xii)
of the Sub Debt
Indenture if to do so would result in amounts permitted
to be incurred
under that section being exceeded."
|
8. Amendments
to Schedules to the Existing Credit Agreement
|
(a)
|
Item
(e) in Schedule A is deleted and replaced by the
following:
|
"all
other conditions precedent set out in Section 7.2 [and Section 7.1 as
applicable] of the Credit Agreement have been fulfilled. Without
limiting the foregoing, in the case of an Advance under Credit
B to a
Non-Guarantor Restricted Subsidiary (as defined in the Sub Debt
Indenture), the
amount of the Advance will not cause the Indebtedness incurred
by all
Non-Guarantor Restricted Subsidiaries to exceed the amount permitted
to be
incurred pursuant to section 1008(b)(i) and, if applicable, section
1008(b)(xii)
of the Sub Debt Indenture."
-
307
-
|
(b)
|
Schedule
D is amended by adding the following after the existing
provisions:
|
"8. For
the purposes of the definition of "Foreign Lender" in the Provisions,
Credit B1
is made on the premise that no withholding tax will be
applicable. Accordingly, should it be determined that withholding tax
is applicable to any payment in respect of Credit B1, it will be
an Indemnified
Tax and section 3.2(a) of the Provisions will apply."
|
(c)
|
Schedule
E to the Existing Credit Agreement is deleted and replaced
by Schedule E
attached to this agreement.
|
(d) Item
7 of Schedule H is deleted and replaced by the following:
"the
aggregate amount of the entries that (i) would, in accordance with
GAAP, be
classified on a consolidated balance sheet as inventory of CHC,
valued at the
lower of cost or fair market value, (ii) are repairable parts that
would have
been classified as inventory in accordance with CHC's accounting
policies as of
30 April 2004 but are classified as capital assets on a consolidated
balance
sheet of CHC in accordance with GAAP and its accounting policies
as of 30 April
2006, valued at their net book value, or (iii) are major spares
(comprised of
engines, main gear boxes, tail gear boxes, intermediate gear boxes,
main rotor
blades, main rotor heads and tail rotor heads) that are classified
as fixed
assets on a consolidated balance sheet of CHC, valued at their
net book
value"
(e) Item
9 of Schedule H is deleted and replaced by the following:
"the
amount included in item 7 above that is not subject to a perfected
security
interest forming part of the Security, that is subject to any Encumbrance
other
than a Permitted Encumbrance that does not rank prior to or pari passu
with the Security, or that is subject to garnishment,
execution, attachment
or similar process [Note: property for which Security
would need to be given under Danish law must be deducted, as Danish
law does not
provide an effective means of obtaining security]"
(f) Item
16 of Schedule H is deleted and replaced by the following:
"the
aggregate of (a) the principal balance of the Restricted Intercompany
Obligations, (b) the principal amount of Advances to Borrowers
incorporated in
Norway and (c) the amount of Other Secured Obligations determined
in accordance
with items 19(b) and (c) below that are incurred by Obligors incorporated
in
Xxxxxx"
-
000
-
(x) Item
2 of Schedule J is deleted and replaced by the following:
"Unless
it becomes an Obligor and complies with all of the requirements
of Section 6.1.2
relating to newly owned, established or acquired wholly owned Subsidiaries,
none
of Bond Rotary Wing Limited, Court Helicopters (Proprietary) Ltd.
(formerly
Court Republic Helicopters (Proprietary) Ltd.), Multifabs Survival
Inc.,
Kirkhill Limited, Scotia Helicopter Services Limited, 0733526 BC
Ltd., 0770436
BC Ltd., Scotia CHC Limited, EEA Helicopter Operations Limited
and CHC Global
Operations Overseas Ltd. shall carry on any business or own any
Property. Heli-One Inc. (which was incorporated on 19 May 2005 as
corporation no. 430261-3) shall not carry on any business or own
any property,
except momentarily as part of a "butterfly" transaction with various
Obligors,
following which it shall be dissolved, by which time its name will
have been
changed and an Obligor will have taken on its current name."
9. Additional
Lenders
By
executing this agreement, the parties agree that each of Scotiabank
Europe Plc,
National Bank of Canada London Branch, Bank of Montreal London
Branch, Bank of
America N.A. London Branch, Société Générale and X.X. Xxxxxx Europe Limited
shall become Lenders. Nordea Bank Norge ASA hereby assigns to each of
those Lenders, and each of them severally accepts, such proportion
of Credit B1
and Credit B (overall) as is necessary to result in each of them
and Nordea Bank
Norge ASA holding the Applicable Percentages specified in Schedule
E to this
agreement. The assignment shall be deemed to be in accordance with
the terms of the Assignment and Assumption and the Agent hereby
waives any fee
in connection with the assignment.
10. Conditions
Precedent
The
effectiveness of this agreement is subject to the following:
|
(a)
|
CHC
paying to the Agent an amendment fee equal to 0.02% of
the Commitment of
each Lender pursuant to the Existing Credit Agreement
and a commitment fee
equal to 0.10% of the increase in the Commitment by each
Lender pursuant
to this agreement, which the Agent shall promptly distribute
to the
Lenders;
|
|
(b)
|
to
the extent that this agreement provides for Norwegian
Obligors to be
Borrowers, the Security given by all Norwegian Obligors
being amended to
provide for guarantees by the Norwegian Obligors of the
Obligations of
other Norwegian Obligors as Borrowers and to provide
that the guarantees
are secured by the Security that they have
given;
|
-
309
-
|
(c)
|
CHC
providing the Agent with an opinion of counsel and other
evidence
satisfactory to the Agent that the increase in the amount
of Credits A and
B and the provisions of Section 10.10 of the Existing
Credit Agreement as
amended by this agreement are in compliance with the
Sub Debt
Indenture;
|
|
(d)
|
CHC
providing the Agent with satisfactory evidence of the
authority of the
persons signing this agreement on behalf of the respective
Obligors;
|
|
(e)
|
the
Agent receiving and being satisfied with a new certificate
from CHC
calculating the Borrowing Base, taking into account the
amendments to the
Borrowing Base pursuant to this
agreement.
|
11. Representations
of Obligors
The
Obligors acknowledge that this agreement is a Loan Document and
that all of
their representations and warranties concerning Loan Documents
that are
contained in the Existing Credit Agreement apply to this agreement
and are
deemed to be repeated on their execution of this agreement as if
set out in full
in this agreement. The Obligors also represent that there are no
consents or other agreements required from third parties to avoid
this agreement
causing a breach or default under any other agreement to which
any Obligor is a
party.
12. Ratification
and Confirmation
The
Existing Credit Agreement, as amended by this agreement, remains
in full force
and effect and is hereby ratified and confirmed. This agreement
merely amends the Existing Credit Agreement and does not constitute
or result in
a novation or rescission of the Existing Credit Agreement or any
other Loan
Document. Without in any way limiting the terms of the Existing
Credit Agreement or the other Loan Documents, the Obligors confirm
that (i) the
existing Security shall continue to secure all of the Obligations
(or any
limited part thereof described in a particular document forming
part of the
Security), including but not limited to any arising as a result
of this
agreement and (ii) the guarantee by CHC dated 22 December 2004
of obligations of
the other Obligors extends to the Obligations of the additional
Borrowers
arising as a result of this agreement and the guarantees by other
Obligors of
obligations of CHC extend to its obligations under its guarantee
dated 22
December 2004.
13. Counterparts
and Facsimile
This
agreement may be executed in any number of counterparts, each of
which when
executed and delivered shall be deemed to be an original, and such
counterparts
together shall constitute one and the same agreement. The delivery of
a facsimile copy of an executed counterpart of this agreement shall
be deemed to
be valid execution and delivery of this agreement, but the party
delivering a
facsimile copy shall deliver an original copy of this agreement
as soon as
possible after delivering the facsimile copy.
[signature
pages follow]
-
310
-
IN
WITNESS OF WHICH, the parties have executed this agreement.
THE
BANK OF NOVA SCOTIA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
311
-
SCOTIABANK
EUROPE PLC
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
000
-
XXXXXXXX
XXXX XX XXXXXX
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
313
-
NATIONAL
BANK OF CANADA, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
314
-
BANK
OF
MONTREAL
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
315
-
BANK
OF MONTREAL, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
316
-
HSBC
BANK CANADA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
317
-
BANK
OF AMERICA, N.A.
Canada
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
318
-
BANK
OF AMERICA, N.A., London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
319
-
SOCIETE
GENERALE (CANADA)
By:
____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
320
-
SOCIETE
GENERALE
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
322
-
NORDEA
BANK NORGE ASA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
323
-
NORDEA
BANK FINLAND PLC, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
000
-
XXXXXXXX
XXXXX XXXX, X.X.,
Xxxxxxx
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
325
-
X.X.
XXXXXX EUROPE LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
326
-
THE
BANK OF NOVA SCOTIA,
as
Agent
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
327
-
______________________________ ______________________________
Name: Name:
each
signing in his capacity as an authorized signatory of each of the
Obligors other
than CHC Helicopters (Barbados) Limited, CHC Leasing (Barbados)
Limited, CHC
Capital (Barbados) Limited, Heli-One (Europe) AS (formerly Vinland
Holding AS
and Heli-One Norway AS), Helicopter Services Group AS, CHC Helikopter
Service
AS, Integra Leasing AS, Heliwest AS, Heli-One (Norway) AS (formerly
Astec
Helicopter Services AS) and Scancopter AS, and not in his personal
capacity.
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
328
-
CHC
HELICOPTERS
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
LEASING
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
CAPITAL
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
329
-
|
HELI-ONE
(EUROPE) AS (formerly
Vinland
Holding AS and Heli-One Norway AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:______________________________
Name
Title:
|
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
330
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELI-ONE
(NORWAY) AS, (formerly Astec Helicopter Services AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for Sixth Amending Agreement relating to CHC Helicopter Corporation
et
al]
-
331
-
SCHEDULE
E
APPLICABLE
PERCENTAGES OF LENDERS
[Note:
Applicable Percentages are nil unless otherwise noted]
THE
BANK OF NOVA SCOTIA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
36.138261%
Credit
A2 (adjusted in accordance with Section 8.2) - 100%
Credit
A (overall) - 41.247200%
Credit
C - 41.247100%
Credit
E - 41.000000%
SCOTIABANK
EUROPE PLC
Credit
B1 (adjusted in accordance with Section 8.2) - 32.232143%
Credit
B (overall) - 30.000000%
NATIONAL
BANK OF CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
19.529565%
Credit
A (overall) - 17.967200%
Credit
C - 17.967200%
Credit
E - 17.000000%
NATIONAL
BANK OF CANADA, London Branch
Credit
B1 (adjusted in accordance with Section 8.2) - 14.039286%
Credit
B (overall) - 13.000000%
BANK
OF MONTREAL
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
10.740870%
Credit
A (overall) - 9.881600%
Credit
C - 9.882000%
Credit
E - 9.000000%
BANK
OF MONTREAL, London Branch
Credit
B1 (adjusted in accordance with Section 8.2) - 19.235714%
Credit
B (overall) - 17.000000%
HSBC
BANK CANADA
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
10.155217%
Credit
A (overall) - 9.342800%
Credit
C - 9.343000%
Credit
E - 9.343000%
-
000
-
XXXX
XX XXXXXXX, X.X., Xxxxxx Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
7.811739%
Credit
A (overall) - 7.186800%
Credit
C - 7.186900%
Credit
E - 7.186900%
BANK
OF AMERICA, N.A., London Branch
Credit
B1 (adjusted in accordance with Section 8.2) - 5.614286%
Credit
B (overall) - 5.240000%
SOCIETE
GENERALE (CANADA)
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.859130%
Credit
A (overall) - 5.390400%
Credit
C - 5.390200%
Credit
E - 5.390200%
SOCIETE
GENERALE
Credit
B1 (adjusted in accordance with Section 8.2) - 4.210714%
Credit
B (overall) - 3.930000%
XXXXXXX
XXXXX CAPITAL CANADA INC.
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
5.859130%
Credit
A (overall) - 5.390400%
Credit
C - 5.390200%
Credit
E - 5.390200%
NORDEA
BANK NORGE ASA
Credit
B1 (adjusted in accordance with Section 8.2) - 21.860714%
Credit
B (overall) - 20.403333%
NORDEA
BANK FINLAND PLC
Credit
B2 (adjusted in accordance with Section 8.2) - 100%
Credit
B (overall) - 6.666667%
-
000
-
XXXXXXXX
XXXXX XXXX X.X., Xxxxxxx Branch
Credit
A1 and Credit A3 (adjusted in accordance with Section 8.2) -
3.906087%
Credit
A (overall) - 3.593600%
Credit
C - 3.593400%
Credit
E - 3.593400%
X.X.
XXXXXX EUROPE LIMITED
Credit
B1 (adjusted in accordance with Section 8.2) - 2.807143%
Credit
B (overall) - 2.620000%
-
334
-
THIS
SEVENTH AMENDING AGREEMENT is made as of 26 April 0000
X
X X X X X X:
CHC
HELICOPTER CORPORATION
AND
THE OTHER OBLIGORS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT AS DEFINED BELOW
-
and -
THE
LENDERS AS DEFINED IN
THE
EXISTING CREDIT AGREEMENT
-
and -
THE
BANK OF NOVA SCOTIA
in
its capacity as Administrative Agent
RECITALS:
A. The
parties to this agreement are also parties to a second amended
and restated
credit agreement dated as of 22 December 2004, which amended
and restated a
credit agreement dated as of 5 July 2000, which in turn amended and
restated a credit agreement dated as of 2 August 1999, each of which
was amended and supplemented on various occasions before being
amended and
restated. The second amended and restated credit agreement has been
amended by amending agreements dated as of 2 February 2005, 11
March 2005, 10
June 2005, 19 June 2006, 12 September 2006 and 9 March 2007,
and as amended and
supplemented to date is referred to in this agreement as the
"Existing Credit
Agreement."
B. The
Existing Credit Agreement contemplates that it may be amended. The
parties are entering into this agreement to amend the Existing
Credit Agreement
in order to allow the Obligors certain flexibility to facilitate
transactions
among the Obligors, including a transaction planned on or shortly
after the date
of this agreement.
C. Capitalized
terms used in this agreement and not otherwise defined have the
meanings defined
in the Existing Credit Agreement.
THEREFORE,
for value received, and intending to be legally bound by this
agreement, the
parties agree as follows:
1. Amendments
Relating to Article I of the Existing Credit Agreement
|
(a)
|
Section
1.1.115 (definition of “Permitted Obligations”) is amended by
re-designating item (q) as item (r) and adding the
following as item
(q):
|
"advances
that are made by one or more Lenders to facilitate transactions
among the
Obligors, provided that the proceeds of the advances are at all
times held in
accounts of Obligors with one or more Lenders, the advances are
repaid as soon
as reasonably possible having regard to the time required to
transfer funds
between accounts of Obligors (and in any event not more than
three Business Days
after the advance), and the principal amount outstanding is not
more than
$100,000,000 at any time; it is agreed that rights of offset by the
Lender or Lenders making the advances against proceeds of the
advances shall
have priority over the Security and that any amount offset shall
not be subject
to any requirement for sharing pursuant to this Agreement"
-
335
-
|
(b)
|
Section
1.1.128 is deleted and replaced by the
following:
|
"Restricted
Intercompany Obligations" means the loans described on SCHEDULE
K as modified in
accordance with this Agreement, other loans that are designated
as Restricted
Intercompany Obligations in accordance with this Agreement from
time to time,
all guarantees of those loans and all Encumbrances securing those
loans and
guarantees.
2. Amendments
Relating to Article X of the Existing Credit Agreement
|
(a)
|
Section
10.1.1 is deleted and replaced by the
following:
|
"Each
Obligor acknowledges that, under the terms of the Security it
has given, all
Intercompany Obligations owing to it are assigned as security
to the
Agent. The assignment as security shall not prevent an Obligor from
receiving payment of Intercompany Obligations unless a Default
has occurred and
is continuing. Notwithstanding the foregoing, the principal amount of
Restricted Intercompany Obligations shall not be repaid, converted,
forgiven or
otherwise reduced or eliminated without the prior written consent
of the
Required Lenders, unless CHC provides the Agent with reasonable
advance notice
of any proposed action and with such evidence as the Agent reasonably
requires
that CHC will be in compliance with Section 6.4.1 following implementation
of
the proposed action, taking into account any concurrent addition
of other
Restricted Intercompany Obligations in accordance with this
Agreement."
|
(b)
|
Section
10.6.1(b)(iii) is deleted and replaced by the
following:
|
"payments
in respect of the obligations contemplated in Sections 1.1.114(k),
1.1.114(s),
1.1.114(t), 1.1.114(u), 1.1.114(w), 1.1.114(x), 1.1.115(j), 1.1.115(n),
1.1.115(p) and 1.1.115(q)"
-
336
-
|
(c)
|
Section
10.6.3(f) is deleted and replaced by the
following:
|
"be
a party to any amendment, modification, discharge, termination
or waiver of the
terms of any Restricted Intercompany Obligation, except as permitted
by Section
10.1.1"
3. Amendments
to Schedules to the Existing Credit Agreement
|
(a)
|
Schedule
A is amended by deleting the words "[Note: notices
regarding Credit B are to be sent to Nordea]" from below the address
of the Agent on page 1 of Schedule
A.
|
|
(b)
|
Schedule
K to the Existing Credit Agreement is deleted and replaced
by Schedule K
attached to this agreement.
|
4. Representations
of Obligors
The
Obligors acknowledge that this agreement is a Loan Document and
that all of
their representations and warranties concerning Loan Documents
that are
contained in the Existing Credit Agreement apply to this agreement
and are
deemed to be repeated on their execution of this agreement as
if set out in full
in this agreement. The Obligors also represent that there are no
consents or other agreements required from third parties to avoid
this agreement
causing a breach or default under any other agreement to which
any Obligor is a
party.
5. Ratification
and Confirmation
The
Existing Credit Agreement, as amended by this agreement, remains
in full force
and effect and is hereby ratified and confirmed. This agreement
merely amends the Existing Credit Agreement and does not constitute
or result in
a novation or rescission of the Existing Credit Agreement or
any other Loan
Document. Without in any way limiting the terms of the Existing
Credit Agreement or the other Loan Documents, the Obligors confirm
that the
existing Security shall continue to secure all of the Obligations
(or any
limited part thereof described in a particular document forming
part of the
Security), including but not limited to any arising as a result
of this
agreement.
6. Counterparts
and Facsimile
This
agreement may be executed in any number of counterparts, each
of which when
executed and delivered shall be deemed to be an original, and
such counterparts
together shall constitute one and the same agreement. The delivery of
a facsimile copy of an executed counterpart of this agreement
shall be deemed to
be valid execution and delivery of this agreement, but the party
delivering a
facsimile copy shall deliver an original copy of this agreement
as soon as
possible after delivering the facsimile copy.
[signature
pages follow]
-
337
-
IN
WITNESS OF WHICH, the parties have executed this agreement.
THE
BANK OF NOVA SCOTIA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
338
-
SCOTIABANK
EUROPE PLC
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
000
-
XXXXXXXX
XXXX XX XXXXXX
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
340
-
NATIONAL
BANK OF CANADA, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
341
-
BANK
OF MONTREAL
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
342
-
BANK
OF MONTREAL, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
343
-
HSBC
BANK CANADA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
344
-
BANK
OF AMERICA, N.A.
Canada
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
345
-
BANK
OF AMERICA, N.A., London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
346
-
SOCIETE
GENERALE (CANADA)
By:
____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
347
-
SOCIETE
GENERALE
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
000
-
XXXXXXX
XXXXX XXXXXXX XXXXXX INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
349
-
NORDEA
BANK NORGE ASA
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
350
-
NORDEA
BANK FINLAND PLC, London Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
000
-
XXXXXXXX
XXXXX XXXX, X.X.,
Xxxxxxx
Branch
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
352
-
X.X.
XXXXXX EUROPE LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
353
-
THE
BANK OF NOVA SCOTIA,
as
Agent
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
354
-
______________________________ ______________________________
Name: Name:
each
signing in his capacity as an authorized signatory of each of
the Obligors other
than CHC Helicopters (Barbados) Limited, CHC Leasing (Barbados)
Limited, CHC
Capital (Barbados) Limited, Heli-One (Europe) AS (formerly Vinland
Holding AS
and Heli-One Norway AS), Helicopter Services Group AS, CHC Helikopter
Service
AS, Integra Leasing AS, Heliwest AS, Heli-One (Norway) AS (formerly
Astec
Helicopter Services AS) and Scancopter AS, and not in his personal
capacity.
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
355
-
CHC
HELICOPTERS
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
LEASING
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
CHC
CAPITAL
(BARBADOS)
LIMITED
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
356
-
|
HELI-ONE
(EUROPE) AS (formerly
Vinland
Holding AS and Heli-One Norway AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELICOPTER
SERVICES GROUP AS
By:_______________________________
Name:
Title:
By:________________________________
Name:
Title:
|
|
CHC
HELIKOPTER SERVICE AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
INTEGRA
LEASING AS
By:________________________________
Name:
Title:
By:________________________________
Name
Title:
|
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
357
-
|
HELIWEST
AS
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
HELI-ONE
(NORWAY) AS, (formerly Astec Helicopter Services AS)
By:______________________________
Name
Title:
By:______________________________
Name
Title:
|
|
SCANCOPTER
AS
By:______________________________
Name
Title:
By: _____________________________
Name
Title:
|
[signature
page for Seventh Amending Agreement relating to CHC Helicopter
Corporation et
al]
-
358
-
SCHEDULE
K
RESTRICTED
INTERCOMPANY OBLIGATIONS
[see
reference in Section 1.1.128]
|
Lender
|
Borrower
|
Guarantor(s)
and Comments
|
Amount
|
|
|
1.
|
CHB
|
HSG
|
Pursuant
to loan and guarantee agreement dated as of 15 October
1999. Guarantors include HSAS, Vinland Holding AS (now Heli-One
(Europe) AS), Integra Leasing AS, Heliwest AS, Astec
Helicopter Services
AS (now Heli-One (Norway) AS) and Scancopter AS
|
£36,497,577
|
|
2.
|
CHB
|
Heliwest
AS
|
Pursuant
to loan and guarantee agreement dated as of 15 October
1999. Obligations of HSAS as original borrower were assumed
by
Heliwest AS by assignment agreement dated as of 30
November
2005. Guarantors include HSG, Vinland Holding AS (now Heli-One
(Europe) AS), Integra Leasing AS, HSAS, Astec Helicopter
Services AS (now
Heli-One (Norway) AS) and Scancopter AS
|
NOK
446,092,590
|
|
3.
|
CHC
Capital (Barbados) Limited
|
HSG
|
Pursuant
to a loan agreement made as of 27 April 2004 as amended
by loan amending
agreement dated as of 30 June 2006. Guarantors include HSAS,
Heli-One (Europe) AS, Integra Leasing AS, Heliwest
AS, Heli-One (Norway)
AS and Scancopter AS. Designated as a Restricted Intercompany
Obligation by omnibus agreement dated as of 20 July
2006
|
NOK
123,825,578
|
|
4.
|
CHB
|
Heli-One
(Norway) AS
|
Pursuant
to a loan agreement made as of 21 December 2005. Guarantors
include HSAS, Heli-One (Europe) AS, Integra Leasing
AS, Heliwest AS, HSG
and Scancopter AS. Designated as a Restricted Intercompany
Obligation by omnibus agreement dated as of 20 July
2006
|
NOK
144,247,561.34
|
CHC
may designate other Intercompany Loan Obligations owing by Norwegian
Obligors as
Restricted Intercompany Obligations as long as the Agent is satisfied
that all
Norwegian Obligors are liable in respect of the proposed additional
Restricted
Intercompany Obligations and that they are secured to the same
extent as the
Restricted Intercompany Obligations referred to above. It is
anticipated that, on or about 30 April 2007, pursuant to Section
10.1.1 and the
preceding sentence, the principal amount of item 2 above will
be reduced by NOK
345,779,568 and a loan by CHB to Heli-One (Europe) AS in an equal
amount,
guaranteed by the other Norwegian Obligors, will be designated
as a Restricted
Intercompany Obligation.
-
359
-
