EXHIBIT 4.4
THIS FIRST AMENDING AGREEMENT is made as of 8 May 0000
X X X X X X X:
NORSKE XXXX CANADA LIMITED, NORSKE XXXX CANADA FINANCE LIMITED
AND THE OTHER RESTRICTED PARTIES FROM TIME TO TIME
- and -
THE LENDERS WHO ARE PARTIES
TO THE EXISTING CREDIT AGREEMENT
- and -
THE TORONTO-DOMINION BANK
in its capacity as Administration Agent
(the "AGENT")
RECITALS:
A. The parties to this agreement are also parties to a credit agreement dated as
of 19 July 2002 (the "EXISTING CREDIT AGREEMENT").
B. Capitalized terms used in this agreement and not otherwise defined have the
meanings defined in the Existing Credit Agreement.
C. The parties have agreed to certain amendments to the Existing Credit
Agreement and to a pledge agreement forming part of the Security, and are
therefore entering into this agreement to amend the provisions of the Existing
Credit Agreement and the Security as agreed by the parties.
D. This agreement is being signed by the Agent on behalf of the Lenders pursuant
to the approval of the Lenders or Majority Lenders as required.
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 EXISTING CREDIT AGREEMENT
(a) Section 1.1.17 of the Existing Credit Agreement is deleted and replaced
by the following:
"Borrowing Base" means at any time, the aggregate of:
(a) 75% of the net book value of accounts receivable of
NSCL, other than accounts receivable owing by
employees of any Restricted Party, based on the
Adjusted Balance Sheet; and
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(b) an amount equal to the lesser of item (a) above and
50% of the aggregate inventory of NSCL, other than
work in process, based on the Adjusted Balance Sheet;
except that, effective 60 days after NSCL gives express notice
to the Agent requesting a change in the calculation of the
Borrowing Base (which notice may be irrevocably given by NSCL
at its option during the term of this Agreement), the
Borrowing Base shall be the amount calculated in accordance
with Schedule M.
(b) Section 1.1.18 of the Existing Credit Agreement is deleted and replaced by
the following:
"Borrowing Base Certificate" means a certificate of NSCL in
the form of Schedule G or, if pursuant to Section 1.1.79 the
Borrowing Base is calculated in accordance Schedule M, means a
certificate of NSCL in the form of Schedule M.
(c) Section 1.1.37 of the Existing Credit Agreement is deleted and replaced by
the following:
"Derivative Agent" means RBC and any successor to it as the
"Group Valuation Agent" appointed under the Repricing
Agreement.
(d) Section 1.1.47 of the Existing Credit Agreement (definition of Existing
Special Derivatives) is deleted.
(e) Section 1.1.67 of the Existing Credit Agreement is deleted and replaced by
the following:
"Market Value" means, on any day, the total amount, if any,
expressed in Canadian Dollars that would be required to be
paid under any Derivative in order to terminate the
Derivative. The determination shall be made in accordance with
the procedures described in the definition of "Hedging
Transaction Exposure" under the Repricing Agreement.
(f) The first two lines of Section 1.1.79 of the Existing Credit Agreement are
deleted and replaced by the following:
"Other Secured Obligations" means the present and future
debts, liabilities and obligations of the Borrower (or any
other Restricted Party in respect of item (f) below) under or
in connection with:
(g) Item (a) of Section 1.1.79 of the Existing Credit Agreement is deleted and
replaced by the following:
"(a) Derivatives to exchange one of Canadian Dollars, US
Dollars, Euros, Japanese yen, Australian dollars,
British pounds sterling or such other currencies as
may be approved by the Agent, after consultation with
counsel but without any requirement to seek approval
of the Majority
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Lenders, to another of those currencies, provided
that in the case of such Derivatives that relate
to Debt, such Derivatives do not increase the
principal amount of Debt outstanding other than as a
result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities or
compensation payable thereunder;
(h) Item (f) and following of Section 1.1.79 of the Existing Credit Agreement is
deleted and replaced by the following:
"(f) guarantees by other Restricted Parties of Other Secured
Obligations incurred by the Borrower;
provided that:
(g) the debts, liabilities and obligations are, in each case other
than any guarantee given to the Agent, incurred pursuant to a
1992 ISDA master agreement and held by (i.e. owed to) a person
that, at the time the relevant Derivative was entered into,
was a Lender or an affiliate (as defined in the CANADA
BUSINESS CORPORATIONS ACT) of a Lender and that, if the
Derivative is of a type described in items (c), (d) and (e)
above, is a party to the Repricing Agreement;
(h) the Derivative Agent is notified in accordance with the
Repricing Agreement of the particular Other Secured Obligation
being entered into, except that a delay in notifying the
Derivative Agent shall not disqualify any debt, liability or
obligation from being an Other Secured Obligation as long as
its later inclusion as an Other Secured Obligation does not
result in one of the events contemplated in section 2(a) of
the Repricing Agreement."
(i) Item (b) of Section 1.1.87 of the Existing Credit Agreement (definition
of Permitted Unsecured Indebtedness) is deleted and replaced by the
following:
"(b) is on terms and conditions that are no more restrictive to the
Restricted Parties than one or both of:
(i) the terms of the Obligations including, without
limitation, the scheduled amortization of the Debt;
and
(ii) the terms of any of the 1999 Notes and the 2001 Notes
including, without limitation, the stated maturity of
any of the 1999 Notes and the 2001 Notes (for greater
certainty, the 1999 Notes and 2001 Notes shall be
used as a basis for comparison whether or not they
remain outstanding and any entitlement of the holder
of the Debt to convert it to
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Capital Stock shall not be considered more
restrictive to the Restricted Parties); and"
(j) Section 1.1.100 of the Existing Credit Agreement is deleted and replaced by
the following:
"Restricted Parties" means NSCL, the Borrower, Elk Falls Pulp
and Paper Limited, NorskeCanada, Norske Xxxx Canada (Japan)
Ltd., Norske Xxxx Canada Pulp Operations Limited, Norske Xxxx
Canada Pulp Sales Inc, Norske Xxxx Canada Sales Inc., Norske
Xxxx Canada (USA) Inc., NSCL Holdings Inc., Pacifica Papers
Sales Ltd., Pacifica Papers Sales Inc., Pacifica Poplars Ltd.,
Pacifica Poplars Inc., and Pacifica Papers US Inc. and such
other Subsidiaries of NSCL as may become Restricted Parties
from time to time.
(k) Section 1.1.112 of the Existing Credit Agreement (definition of
Threshold Amount) is amended by replacing the last sentence with the
following:
"If neither the 1999 Notes nor the 2001 Notes are outstanding
but Similar Notes are outstanding, the Threshold Amount shall
be calculated by adapting the foregoing as required to reflect
the provisions of the Similar Indenture that correspond to
clauses (i), (ix) and (xi), respectively, of the definition of
"Permitted Indebtedness" in the 0000 Xxxxxxxxx and "Permitted
Debt" in the 2001 Indenture. If no 1999 Notes, 2001 Notes or
Similar Notes are outstanding, the Threshold Amount shall be
considered to be unlimited. For greater certainty, because of
the requirements of the definition of Similar Indenture, the
Threshold Amount based on any Similar Indenture shall not be
lower than the Threshold Amount based on the 2001 Indenture."
(l) Section 1.1.113 of the Existing Credit Agreement is deleted and replaced by
the following:
"TOTAL INTEREST EXPENSE" means, for any particular period,
without duplication, the difference between (a) aggregate
expense incurred for interest and equivalent costs of
borrowing (taking into account the effect of any relevant
Derivatives), including but not limited to (i) bankers'
acceptance fees, (ii) discounts on bankers' acceptances, (iii)
the interest portion of any capital lease, and (iv) all fees
and other compensation paid to any person that has extended
credit to the Restricted Parties, but excluding any upfront,
extension and similar non-recurring fees paid to the Agent or
Lenders or paid in connection with the 2001 Notes, the 1999
Notes or any Similar Notes, in each case whether or not
actually paid (unless paid by the issuance of securities
constituting Debt), and (b) the aggregate income earned from
interest, in the case of each of (a) and (b), calculated in
accordance with GAAP in respect of NSCL on a consolidated
basis, omitting amounts that are not
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attributable to Restricted Parties. If the calculation of
EBITDA is adjusted because of acquisitions, dispositions or
other circumstances described in the last paragraph of Section
1.1.40, the calculation of Total Interest Expense shall be
adjusted on the same basis.
(m) The following additional definitions are added to Section 1.1 of the
Existing Credit Agreement:
"Monetization Transaction" means a sale on a discounted basis
by a Restricted Party to a Lender or an affiliate (as defined
in the CANADA BUSINESS CORPORATIONS Act) of a Lender of
accounts receivable of the Restricted Party, which may include
the sale or assignment of the Restricted Party's rights to any
insurance or security for the accounts receivable that are
sold.
"Repricing Agreement" means the agreement in the form attached
as Schedule L, as amended, supplemented, restated and replaced
from time to time.
"Similar Indenture" means an indenture under which Permitted
Unsecured Indebtedness is issued (a) that contains
substantially the same provisions as the 1999 Indenture or the
0000 Xxxxxxxxx or (b) the provisions of which are based on the
same "template" as the 1999 Indenture and the 2001 Indenture
but are less restrictive to the Restricted Parties (as the
provisions of the 2001 Indenture are less onerous than the
1999 Indenture).
"Similar Notes" means notes issued under a Similar Indenture.
2. EXTENSION UNDER SECTION 2.4 OF EXISTING CREDIT AGREEMENT
In response to a request by the Borrower pursuant to Section 2.4 of the
Existing Credit Agreement that the maturity date of the Credits be extended to
19 July 2006, TD, RBC, Canadian Imperial Bank of Commerce, Bank of Montreal, The
Bank of Nova Scotia, HSBC Bank Canada, Bank of America, N.A. Canada Xxxxxx,
Xxxxxxx Xxxxx Capital Canada Inc. and Canadian Western Bank were Accepting
Lenders and Laurentian Bank of Canada was a Declining Lender. Accordingly, the
maturity date of the Credits shall be extended to 19 July 2006 subject to the
Borrower complying with Section 2.4.4 of the Existing Credit Agreement.
3. AMENDMENTS TO SECTION 3.2 OF EXISTING CREDIT AGREEMENT
(a) The first sentence of the third paragraph of Section 3.2.1 of the
Existing Credit Agreement is deleted and replaced by the following:
"As between the Lenders, all Obligations shall rank equally
and ratably with each other notwithstanding that different
Obligations may be designated as having been incurred with
reference to different provisions of the 1999 Indenture, the
2001 Indenture or
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any Similar Indenture which might otherwise imply that
different Obligations have different rankings."
(b) The first sentence of the final paragraph of Section 3.2.2 of the
Existing Credit Agreement is deleted and replaced by the following:
"If any Advance is within the Threshold Amount at the time it
is made and thereby entitled to be secured in priority to the
1999 Notes, the 2001 Notes and any Similar Notes, it shall
remain entitled to that priority notwithstanding any
subsequent diminution of the Threshold Amount."
4. AMENDMENT TO SECTION 6.1 OF EXISTING CREDIT AGREEMENT
Section 6.1.4(d) of the Existing Credit Agreement is deleted and
replaced by the following:
"The Credits constitute "New Credit Facilities" under the
terms of the 1999 Notes, the 2001 Notes and any Similar Notes.
As of 30 June 2002, the Threshold Amount was not less than
$600,000,000."
5. AMENDMENT TO SECTION 7.3 OF EXISTING CREDIT AGREEMENT
Section 7.3.2(f) of the Existing Credit Agreement is deleted and
replaced by the following:
"NSCL shall promptly notify the Agent if (i) it is within
$10,000,000 of any of the thresholds that would require it to
take action specified in Section 7.7, or (ii) the "Aggregate
Special Derivative Exposure" is within $10,000,000 of the
"Permitted Special Derivative Exposure," as those terms are
defined in the Repricing Agreement, and promptly provide such
further reports as the Agent may require while any of those
circumstances continues."
6. AMENDMENTS TO SECTION 7.5 OF EXISTING CREDIT AGREEMENT
(a) Section 7.5.1(d) of the Existing Credit Agreement is amended by adding
the following immediately after item (vi) thereof:
"(vii) the repurchase of 1999 Notes, 2001 Notes, Permitted
Senior Secured Indebtedness, Permitted Subordinated
Secured Indebtedness or Permitted Unsecured
Indebtedness under an exchange offer made by NSCL
pursuant to a registration statement filed with the
Securities and Exchange Commission of the United
States, provided that the sole consideration for the
repurchase is (in the case of Permitted Senior
Secured Indebtedness and Permitted Subordinated
Secured Indebtedness) notes of NSCL that
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constitute Permitted Senior Secured Indebtedness and
Permitted Subordinated Secured Indebtedness,
respectively, or (in the case of the 1999 Notes, 2001
Notes or Permitted Unsecured Indebtedness) Permitted
Unsecured Indebtedness, in all cases in an aggregate
amount that does not increase the obligations of
NSCL, taking into account any difference in interest
rates
(viii) the conversion of any Permitted Unsecured
Indebtedness to Capital Stock of NSCL"
(b) Section 7.5.1(e) of the Existing Credit Agreement is amended by adding the
following immediately after item (vii) thereof:
"(viii) guarantees, indemnities or other financial assistance
of any kind in favour of the purchasers in
Monetization Transactions, in respect of payment of
the accounts receivable sold"
(c) Item (B) in Section 7.5.1(f) of the Existing Credit Agreement is deleted and
replaced by the following:
"in the case of interest rate Derivatives, the aggregate
notional amount swapped by all Restricted Parties at any time
(net of offsetting transactions) exceeds the outstanding
amount of the Credits, the 1999 Notes, the 2001 Notes and any
Similar Notes at that time"
(d) Section 7.5.2(c) of the Existing Credit Agreement is deleted and replaced by
the following:
"permit any sale, lease, sale and lease-back or other
disposition of any part of its Property (including Capital
Stock it holds) except for (i) sales of inventory and obsolete
or redundant equipment in the ordinary course of business,
(ii) dispositions to another Restricted Party, provided that
Property owned by a Restricted Party incorporated in Canada is
not transferred to a Restricted Party not incorporated in
Canada and Property located in Canada is not transferred
outside Canada, (iii) dispositions in connection with
transactions permitted by Section 7.5.3(a), (iv) sales
constituting Monetization Transactions, and (v) other
dispositions of Property (including Capital Stock of any other
person) having a fair market value for all Restricted Parties
up to an aggregate for all Restricted Parties during any
period of 36 consecutive months of 12.5% (20% if no Permitted
Senior Secured Indebtedness is outstanding at the time of the
disposition) of the Consolidated Net Tangible Assets valued
immediately before any disposition;"
(e) Section 7.5.3(h) of the Existing Credit Agreement is deleted.
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(f) Section 7.5.3(i) of the Existing Credit Agreement is deleted and replaced by
the following:
"(A) be a party to any amendment or waiver to the terms of the
1999 Notes, 2001 Notes, Permitted Senior Secured Indebtedness,
Permitted Subordinated Secured Indebtedness or Permitted
Unsecured Indebtedness or any documents relating to them
unless expressly permitted by any applicable Intercreditor
Agreement, or (B) if there is no applicable Intercreditor
Agreement, be a party to any such amendment or waiver if the
amendment or waiver would adversely affect the rights of any
Lender or make the terms thereof more onerous to any
Restricted Party (including but not limited to any amendment
that would shorten the maturity, require any prepayment not
required in the 1999 Indenture, 2001 Indenture or other
applicable document, increase the interest rate or other
compensation payable to holders thereof, impose additional
requirements for securing the holders or further limit the
rights of the Restricted Parties to incur Debt or grant
Encumbrances), except that it may pay a consent solicitation
fee to holders in connection with the solicitation of consents
to an amendment or waiver that is otherwise permitted under
this item (i) provided that such fee does not exceed customary
amounts in the circumstances, or (C) be a party to any
amendment or waiver permitted by (A) or (B) without
immediately providing the Agent with copies of all documents
and other information relating to the amendment or waiver."
7. AMENDMENTS TO SECTION 7.7 OF EXISTING CREDIT AGREEMENT
(a) Section 7.7.2(c) of the Existing Credit Agreement is deleted.
(b) Section 7.7.2(d) of the Existing Credit Agreement is deleted and
replaced by the following:
"the amount of the limit on liability established by
sections 5(d) and 5(e) of the Repricing Agreement"
(c) Section 7.7.2(e) of the Existing Credit Agreement is deleted and
replaced by the following:
"the amount, as determined under the 1999 Indenture, the 2001
Indenture or any Similar Indenture, of any other obligations
that have been classified as being incurred under clauses (i)
or (ix) of the definitions referred to in that sentence"
8. ADDITION OF SECTION 7.8 TO EXISTING CREDIT AGREEMENT
The following is added after Section 7.7 of the Existing Credit
Agreement:
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"7.8 REPRICING AGREEMENT
Any Lender or affiliate of a Lender that holds Other Secured
Obligations of the type described in Sections 1.1.79(c), (d)
and (e) must be aparty to the Repricing Agreement. Any Lender
or affiliate of a Lender that holds only other types of Other
Secured Obligations may, but need not, be a party to the
Repricing Agreement. However, any such non-party:
(a) shall provide trade details to the Derivative Agent
and notify the Derivative Agent as required by
section 3(c) of the Repricing Agreement, which is
incorporated herein by reference;
(b) shall provide the Borrower with a listing of its
Derivatives as required by the first two lines of
section 3(g) of the Repricing Agreement, which are
incorporated herein by reference;
(c) shall comply with section 6(a) of the Repricing
Agreement, which is incorporated herein by reference;
(d) accepts the provisions of sections 11(a), (b) and (c)
of the Repricing Agreement, which are incorporated
herein by reference."
9. AMENDMENT TO SECTION 8.1 OF EXISTING CREDIT AGREEMENT
Section 8.1(k) of the Existing Credit Agreement is deleted and replaced
by the following:
"there is a breach of Section 7.7 or NSCFL does not comply
with the requirements of the Repricing Agreement"
10. AMENDMENTS TO SCHEDULE C OF EXISTING CREDIT AGREEMENT
(a) Item 2(e) in Schedule C of the Existing Credit Agreement is deleted and
replaced by the following:
"its "Consolidated Fixed Charge Coverage Ratio" as defined
under the 1999 Indenture, the 2001 Indenture and any Similar
Indenture is : 1"
--------
(b) Item 5 in Schedule C of the Existing Credit Agreement is deleted and
replaced by the following:
"Appendix C attached contains details of (i) all Other Secured
Obligations as of the end of the undersigned's most-recently
completed fiscal quarter, the classification under which they
were incurred for the purposes of section 4.06 of the each of
the 1999 Indenture and the 0000 Xxxxxxxxx and the
corresponding provision of any Similar Indenture and the
Market Value thereof, (ii) all
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outstanding Permitted Senior Secured Indebtedness and
Permitted Subordinated Secured Indebtedness as of the end of
the undersigned's most-recently completed fiscal quarter and
the classification under which it was incurred for the
purposes of section 4.06 of the each of the 1999 Indenture and
the 0000 Xxxxxxxxx and the corresponding provision of any
Similar Indenture and (iii) the amount, as determined under
the 1999 Indenture, the 2001 Indenture and any Similar
Indenture, respectively, of any other obligations that have
been classified as being incurred under clauses (i) or (ix) of
the definition of "Permitted Indebtedness" in the 1999
Indenture, the definition of "Permitted Debt" in the 0000
Xxxxxxxxx and the corresponding provisions of any Similar
Indenture."
11. AMENDMENT TO SCHEDULE L OF EXISTING CREDIT AGREEMENT
Schedule L of the Existing Credit Agreement is deleted and replaced by
Schedule L attached to this agreement.
12. ADDITION OF SCHEDULE TO EXISTING CREDIT AGREEMENT
Schedule M attached to this agreement is added as Schedule M to the
Existing Credit Agreement.
13. AMENDMENT TO OMNIBUS PLEDGE AGREEMENT
Section 3 on page 4 of the omnibus pledge agreement dated as of 19 July
2002 (the "OMNIBUS PLEDGE") by which the Restricted Parties pledged debentures
to the Agent as contemplated in Section 3.3.1(b) of the Existing Credit
Agreement is amended and replaced by the following:
"Each Pledgor hereby assigns, pledges and hypothecates to the
Pledgee, and grants to the Pledgee for and on behalf of and
for the benefit of the Secured Parties a security interest in,
its Debentures designated as Series A No. 4 as general and
continuing collateral security for the payment and performance
by such Pledgor of all "Other Secured Obligations" of the
Pledgor as defined in the Syndicated Credit Agreement that are
classified by Norske Xxxx Canada Limited as being incurred
under clauses (v) and (vi) of the definition of "Permitted
Indebtedness" in the 1999 Indenture (as defined in the
Syndicated Credit Agreement), the definition of "Permitted
Debt" in the 2001 Indenture (as defined in the Syndicated
Credit Agreement) and the corresponding definition in any
Similar Indenture (as defined in the Syndicated Credit
Agreement). For greater certainty, the pledge of each Series A
No. 4 Debenture shall continue to secure the Other Secured
Obligations described above notwithstanding the termination of
the Syndicated Credit Agreement for any reason."
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14. CONDITIONS PRECEDENT
The obligations of the Lenders under this agreement are subject to the
Agent receiving opinions of counsel to the Restricted Parties concerning the
authorization, execution and enforceability of this agreement and concerning
relevant matters relating to the 1999 Indenture and the 2001 Indenture, all in
form and substance satisfactory to the Agent.
15. REPRESENTATIONS OF RESTRICTED PARTIES
The Restricted Parties acknowledge that this agreement is a Credit
Document and that all of their representations and warranties concerning Credit
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 Restricted Parties 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 Restricted Party is a party.
16. RATIFICATION AND CONFIRMATION
The Existing Credit Agreement and the Omnibus Pledge, as amended by
this agreement, remain in full force and effect and are hereby ratified and
confirmed. Without in any way limiting the terms of the Existing Credit
Agreement or the other Credit Documents, the Restricted Parties confirm that the
Security shall continue to secure the Obligations and the Other Secured
Obligations, including but not limited to any arising as a result of this
agreement.
17. 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]
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IN WITNESS OF WHICH, the parties have executed this agreement.
NORSKE XXXX CANADA LIMITED
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
Treasurer
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx
Vice President Finance and Chief
Financial Officer
NORSKE XXXX CANADA FINANCE LIMITED
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
Treasurer
ELK FALLS PULP AND PAPER LIMITED
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
President
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 8 MAY 2003 RELATING TO
NORSKE XXXX CANADA LIMITED ET AL]
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NORSKE XXXX CANADA LIMITED
AS MANAGING PARTNER FOR
AND ON BEHALF OF NORSKECANADA
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
Treasurer
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx
Vice President Finance and
Chief Financial Officer
NORSKE XXXX CANADA PULP OPERATIONS LIMITED
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
NORSKE XXXX CANADA SALES INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
NSCL HOLDINGS INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
NORSKE XXXX CANADA (USA) INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 8 MAY 2003 RELATING TO
NORSKE XXXX CANADA LIMITED ET AL]
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NORSKE XXXX CANADA (JAPAN) LTD.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxx
Director
NORSKE XXXX CANADA PULP SALES INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA PAPERS SALES LTD.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
President
PACIFICA PAPERS SALES INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA POPLARS LTD.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
President
PACIFICA POPLARS INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA PAPERS US INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 8 MAY 2003 RELATING TO
NORSKE XXXX CANADA LIMITED ET AL]
THE TORONTO-DOMINION BANK, as Agent
By: /s/ authorized signatory
---------------------------------
Name:
Title:
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 8 MAY 2003 RELATING TO
NORSKE XXXX CANADA LIMITED ET AL]
SCHEDULE L
FORM OF REPRICING AGREEMENT
[NOTE: SEE ATTACHED]
SCHEDULE M
ALTERNATE BORROWING BASE CERTIFICATE
[SEE REFERENCE IN SECTION 1.1.18]
TO: THE LENDERS (as defined in the Credit Agreement referred to below)
AND TO: THE TORONTO-DOMINION BANK, as Agent
--------------------------------------------------------------------------------
We refer to Section 7.3.1(a) of the credit agreement dated as of 19
July 2002 between Norske Xxxx Canada Limited and others as Restricted Parties,
The Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents 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.
We hereby certify that the following is a true and correct calculation
of our Borrowing Base as of [DATE] and that the attached documents accurately
set out the details from which the Borrowing Base is calculated. The amounts of
accounts receivable and inventory referred to below are based on the Adjusted
Balance Sheet.
($'000S)
A ACCOUNTS RECEIVABLE
(a) 100% of accounts receivable, each of which is fully
backed by a standby letter of credit, a letter of
guarantee or a commercial letter of credit, other
than an L/C, issued by a financial institution o
acceptable to the Agent (each, an "Acceptable
Letter"); plus
(b) 90% of accounts receivable that are insured to the
extent of at least 90% by Export Development Canada
or other insurer acceptable to the Agent acting o
reasonably (each, an "Insured Account"); plus
(c) 80% of non-Insured Account, non-Acceptable Letter
backed accounts receivable from Pan Asia Paper Co.
Pte Ltd. (as long as it is at least 40% owned by o
Norske Skogindustriere ASA), Norske Skogindustriere
ASA or its Subsidiaries and Xxxxxx River Energy
Inc.; plus
(d) 80% of non-Insured Account, non-Acceptable Letter
backed accounts receivable, including fibre
receivables, owing by a debtor located in Canada, the
United States of America, Australia or the United o
Kingdom that NSCL reasonably considers to be good
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and collectable in the normal course; plus
(e) 70% of non-Insured Account, non-Acceptable Letter
backed accounts receivable owing by a debtor located o
in a country other than Canada, the United States of
America, Australia or the United Kingdom; plus
(f) 100% of amounts owing by the Government of Canada in
respect of goods and services tax payable pursuant to o
the EXCISE TAX ACT (Canada); plus
(g) 70% of other accounts receivable including accrued
interest receivables, freight/traffic claims and
other sundry receivables but excluding accounts
receivable owing by employees of a Restricted Party; (o)
less:
(h) all amounts included in items (c) through (e) and (g)
above which relate to accounts receivable that are 60
days past due
NET TOTAL o
B INVENTORY
Finished Goods
Paper o
Pulp o
Sub total o
WIP o
Raw Materials
Chips o
Logs o
Sawdust o
DIP/Other purchased pulp o
Other o
Sub total o
Supplies
Crofton o
Elk Falls o
Powell River o
Port Alberni o
-3-
Other o
Sub total o
Consolidated Inventory per FS o
Less: WIP (o)
Less: Inventory of Unrestricted Parties (o)
Adjusted Inventory o
50% OF ADJUSTED INVENTORY O
BORROWING BASE
(A + the lesser of A and B)
DATED _____________
NORSKE XXXX CANADA LIMITED
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
