EXHIBIT 13
FINAL
THIS THIRD AMENDING AGREEMENT is made as of 28 May 2004
BETWEEN:
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, as amended by amending agreements dated as of 8 May 2003 and 6
August 2003 (as amended, 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 1.1.59 of the Existing Credit Agreement is deleted and replaced by
the following:
"Issuing Bank" means (i) with respect to L/Cs issued under Credit 1,
the Agent and (ii) with respect to L/Cs issued under Credit 2, the
Lender making Advances under Credit 2, which is RBC unless changed in
accordance with Section 2.1.1.
-2-
(b) Section 1.1.60 of the Existing Credit Agreement is deleted and replaced by
the following:
"L/C" 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 the Borrower in favour of
a third party to secure the payment or performance of an obligation of
a Restricted Party to the third party, and includes a PoA L/C.
(c) Section 1.1.87 of the Existing Credit Agreement is deleted and replaced by
the following:
"Permitted Unsecured Indebtedness" means Debt of a Restricted Party
for borrowed money that:
(a) other than as a result of default, does not require payment of
principal in excess of an aggregate of $50,000,000 for all
Permitted Senior Secured Indebtedness and Permitted Unsecured
Indebtedness during the term of this Agreement;
(b) is on terms and conditions with respect to:
(i) the term, scheduled amortization and other mandatory
repayments or repurchases of the Debt, and the frequency of
payment of interest;
(ii) the circumstances in which NSCL or any other Restricted
Party may incur Debt or Other Secured Obligations and the
amounts that may be incurred;
(iii) the circumstances in which NSCL or any other Restricted
Party may create, incur, assume or permit the existence of
any Encumbrance on its Property and the amounts that may be
secured;
(iv) the ranking or priority of the Permitted Unsecured
Indebtedness and the circumstances in which NSCL or any
other Restricted Party is required to grant security in
respect of the Permitted Unsecured Indebtedness;
(v) the guarantees or other credit support required by the terms
of the Permitted Unsecured Indebtedness; and
(vi) the characterization of the Obligations and Other Secured
Obligations as being "Permitted Debt" and (in the case of
the Obligations) "Credit Facilities" or as falling within
corresponding terms in the applicable Similar Indenture;
-3-
that are no more restrictive to the Restricted Parties than
the terms of one or more of the 2003 Notes or any Similar
Notes then outstanding or, if the terms are more
restrictive, in the opinion of the Agent acting reasonably,
after consultation with counsel but without any requirement
to seek approval of the Majority Lenders, such restrictions
do not materially affect the position of the Lenders; for
greater certainty, any entitlement of the holder of the Debt
to convert it to Capital Stock shall not be considered more
restrictive to the Restricted Parties; and
(c) is not incurred at a time that an Event of Default or Pending
Event of Default has occurred and is continuing or would result
from the incurrence of the Debt.
Without limiting the foregoing, the 2003 Notes and the 2004 Notes are
Permitted Unsecured Indebtedness.
(d) The definition of "Similar Indenture," which was added in the amending
agreement dated as of 8 May 2003 that forms part of the Existing Credit
Agreement, is deleted and replaced by the following:
"Similar Indenture" means an indenture under which Permitted Unsecured
Indebtedness is issued.
(e) Section 1.1.112 of the Existing Credit Agreement is deleted and replaced
with the following:
"Threshold Amount" means, while the 2003 Notes are outstanding, the
aggregate of:
(a) the greater of (i) $725,000,000 and (ii) the sum of 75% of the
net book value of the accounts receivable of NSCL and its
"Restricted Subsidiaries" as defined under the 2003 Indenture,
plus 50% of the book value of inventory at the lower of cost and
net realizable value, net of any allowance for obsolescence of
NSCL and its Restricted Subsidiaries, plus $290,000,000;
(b) $40,000,000; and
(c) the amount of Advances outstanding under the Credits that are
trade letters of credit and standby letters of credit incurred in
the ordinary course of business and the amount of Bankers'
Acceptances outstanding under the Credits that are incurred in
the ordinary course of business, up to an aggregate principal
amount of $5,000,000 outstanding at any one time.
-4-
If the 2004 Notes are the only Similar Notes outstanding, "Threshold
Amount" means the aggregate of:
(d) the greater of (i) $725,000,000 and (ii) the sum of 85% of the
net book value of the accounts receivable of NSCL and its
"Restricted Subsidiaries" as defined under the 2004 Indenture,
plus 60% of the book value of inventory at the lower of cost and
net realizable value, net of any allowance for obsolescence of
NSCL and its Restricted Subsidiaries, plus $375,000,000;
(e) $100,000,000; and
(f) the amount of Advances outstanding under the Credits that are
trade letters of credit and standby letters of credit incurred in
the ordinary course of business and the amount of Bankers'
Acceptances outstanding under the Credits that are incurred in
the ordinary course of business, up to an aggregate principal
amount of $5,000,000 outstanding at any one time.
If neither of the circumstances described above is applicable but
Similar Notes are outstanding, the Threshold Amount shall be
calculated by adapting the foregoing as required to reflect the
provisions of the outstanding Similar Indentures that correspond with
clauses (1), (9) and (11) in the definition of "Permitted Debt" in the
2004 Indenture (or that in the determination of the Agent similarly
affect the amount of debt that can be incurred without requiring the
Similar Notes to be secured) and that result in the lowest Threshold
Amount (if the outstanding Similar Indentures do not have identical
provisions). If no Similar Notes with corresponding or similar
provisions are outstanding, the Threshold Amount shall be considered
to be unlimited. For greater certainty, the Threshold Amount based on
any Similar Indenture shall not be lower than the Threshold Amount
based on the 2003 Indenture.
(f) The following additional definitions are added to Section 1.1 of the
Existing Credit Agreement:
"PoA L/C" means an L/C issued under Credit 1 in accordance with the
requirements of Section 5.29.
"2003 Indenture" means the trust indenture dated as of 15 May 2003
between NSCL, certain of its Subsidiaries as guarantors and Xxxxx
Fargo Bank Minnesota, National Association, as trustee, as amended and
supplemented as permitted by this Agreement.
"2003 Notes" means NSCL's 8-5/8% senior notes due 2011 in the original
principal amount of US $400,000,000 that have been issued under the
2003 Indenture.
-5-
"2004 Indenture" means the trust indenture dated as of 23 March 2004
between NSCL, certain of its Subsidiaries as guarantors and Xxxxx
Fargo Bank Minnesota, National Association, as trustee, as amended and
supplemented as permitted by this Agreement.
"2004 Notes" means NSCL's 7-3/8% senior notes due 2014 in the original
principal amount of US $250,000,000 that have been issued under the
0000 Xxxxxxxxx.
(g) As the 1999 Notes have been repaid and the 2001 Notes have been exchanged
for Similar Notes issued under the 2003 Indenture, the 1999 Indenture and
2001 Indenture have been terminated. Accordingly, references to the terms
"1999 Notes," "2001 Notes," "1999 Indenture " and "2001 Indenture" in the
Existing Credit Agreement shall be disregarded in connection with
repetitions of representations and warranties that include those terms.
2. AMENDMENTS TO ARTICLE II OF EXISTING CREDIT AGREEMENT
(a) Section 2.1.2 of the Existing Credit Agreement is deleted and replaced by
the following:
"At the option of the Borrower, Credit 1 may be used by requesting
Prime Rate Advances to be made by the Lenders, by requesting Base Rate
Advances to be made by the Lenders, by presenting orders to the
Lenders for acceptance as Bankers' Acceptances, by requesting that
LIBOR Advances be made by the Lenders or by requesting that PoA L/Cs
denominated in Canadian Dollars, US Dollars, Euros or Japanese yen be
issued by the Agent on behalf of the Lenders. The aggregate face
amount of PoA L/Cs outstanding shall not exceed $75,000,000 or the
equivalent amount in other applicable currencies measured at the time
of issuance or renewal of any PoA L/C."
(b) In response to a request by the Borrower pursuant to Section 2.4 of the
Existing Credit Agreement, the Lenders agree that the maturity date of the
Credits is extended to 19 July 2007.
3. AMENDMENTS TO SECTION 3.2 OF EXISTING CREDIT AGREEMENT
(a) Section 3.2.2 of the Existing Credit Agreement is amended by adding the
following after the existing sub-paragraph (b):
"For the purposes of section 4.06 of the 2003 Indenture:
(c) Advances by way of L/Cs are hereby classified by NSCL as being
incurred under clause (xi) of the definition of "Permitted Debt"
in the 2003 Indenture until all amounts permitted to be incurred
under that clause from time to time have been incurred,
thereafter under clause (i) of the definition until all amounts
permitted to be incurred under that clause from time to time have
been incurred, and finally under clause (ix) of the definition
until all amounts
-6-
permitted to be incurred under that clause from time to time have
been incurred;
(d) Advances other than by way of L/Cs are hereby classified by NSCL
as being incurred under clause (i) of the definition of
"Permitted Debt" in the 2003 Indenture until all amounts
permitted to be incurred under that clause from time to time have
been incurred, and thereafter under clause (ix) of the definition
until all amounts permitted to be incurred under that clause from
time to time have been incurred.
For the purposes of section 10.06 of the 2004 Indenture:
(e) Advances that were outstanding on the date on which notes were
first issued under the 2004 Indenture are classified by NSCL as
being incurred under clause (1) of the definition of "Permitted
Debt" in the 2004 Indenture;
(f) subject to item (e) above, Advances by way of L/Cs are hereby
classified by NSCL as being incurred under clause (11) of the
definition of "Permitted Debt" in the 2004 Indenture until all
amounts permitted to be incurred under that clause from time to
time have been incurred, thereafter under clause (1) of the
definition until all amounts permitted to be incurred under that
clause from time to time have been incurred, and finally under
clause (9) of the definition until all amounts permitted to be
incurred under that clause from time to time have been incurred;
(g) subject to item (e) above, Advances other than by way of L/Cs are
hereby classified by NSCL as being incurred under clause (1) of
the definition of "Permitted Debt" in the 2004 Indenture until
all amounts permitted to be incurred under that clause from time
to time have been incurred, and thereafter under clause (9) of
the definition until all amounts permitted to be incurred under
that clause from time to time have been incurred."
(b) Section 3.2.4 of the Existing Credit Agreement is amended by adding the
following after the existing sub-paragraph (d):
"For the purposes of section 4.06 of the 0000 Xxxxxxxxx and Section
10.06 of the 2004 Indenture:
(e) the Other Secured Obligations referred to in Section 1.1.79(a)
are hereby classified by NSCL as being incurred under clauses
(vi) and (6), respectively, of the definition of "Permitted Debt"
in the 2003 Indenture and the 2004 Indenture;
-7-
(f) the Other Secured Obligations referred to in Section 1.1.79(b)
are hereby classified by NSCL as being incurred under clauses (v)
and (5), respectively, of the definition of "Permitted Debt" in
the 2003 Indenture and the 0000 Xxxxxxxxx;
(g) the Other Secured Obligations referred to in Section 1.1.79(c)
are hereby classified by NSCL as being incurred under clauses (i)
and (1), respectively, of the definition of "Permitted Debt" in
the 2003 Indenture and the 2004 Indenture until all amounts
permitted to be incurred under those clauses from time to time
have been incurred and thereafter under clauses (ix) and (9),
respectively, of the definition until all amounts permitted to be
incurred under those clauses from time to time have been
incurred;
(h) the Other Secured Obligations referred to in Sections 1.1.79(d)
and 1.1.79(e) are hereby classified by NSCL as being incurred
under clauses (i) and (1) of the definition of "Permitted Debt"
in the 2003 Indenture and the 2004 Indenture until all amounts
permitted to be incurred under those clauses from time to time
have been incurred and thereafter under clauses (ix) and (9),
respectively, of the definition until all amounts permitted to be
incurred under those clauses from time to time have been
incurred."
4. AMENDMENTS TO ARTICLE V OF EXISTING CREDIT AGREEMENT
(a) Section 5.1 of the Existing Credit Agreement is amended by deleting the
words "issued under Credit 2" in the fifth line of that Section.
(b) Section 5.25 of the Existing Credit Agreement is deleted and replaced by
the following:
"Payment of L/C Fees shall be made to the Issuing Bank (and shall be
promptly distributed to the Lenders in the case of PoA L/Cs), shall be
made at the time of issuance or renewal of each L/C and shall be
refunded pro rata if the L/C is drawn, reduced in amount or terminated
before its expiry date. Any refund of L/C Fees relating to a PoA L/C
may, in the Agent's discretion, be made by reducing the next payment,
if any, to the relevant Lenders rather than requiring payment of the
refund from them. Fees shall be calculated for the period from and
including the date of issuance (or the day following the previous
expiry date in the case of a renewal) to and including the date of
expiry of the relevant L/C."
(c) The first two paragraphs of Section 5.26 of the Existing Credit Agreement
are deleted and replaced by the following:
"The Borrower shall provide for payment to the Issuing Bank (for the
account of the Lenders in the case of a PoA L/C) at the branch
-8-
where the L/C was issued of the full face amount of each L/C (or the
amount actually paid in the case of a partial payment) on the earlier
of (i) the date on which a payment is made to the beneficiary of an
L/C, and (ii) the date on which any Obligations become due and payable
pursuant to Section 8.2. The Issuing Bank, on behalf of the Lenders
(in the case of a PoA L/C), or the Issuing Bank (in the case of an L/C
issued under Credit 2) shall be entitled to recover interest from the
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) or Base
Rate Advances (in the case of US Dollar L/Cs), 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 a payment is made 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 Borrower to reimburse the Issuing Bank for the
account of the Lenders (in the case of a PoA L/C) or the Issuing Bank
(in the case of an L/C issued under Credit 2) for a payment to a
beneficiary of an L/C shall be absolute and unconditional, without
prejudice to the Borrower's right to subsequently claim damages for
matters arising from the wilful misconduct or gross negligence of the
Issuing Bank or the Lenders, and shall not be reduced by any demand or
other request for payment of an L/C (a "DEMAND") 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
Issuing Bank, any Lender or any other person for any reason
whatsoever, including the fact that the Issuing Bank or any Lender
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 any Lender or the occurrence of any event
including, but not limited to, the commencement of legal proceedings
to prohibit payment of a Demand. Any action, inaction or omission
taken or suffered by the Issuing Bank or any Lender 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 the Issuing Bank or any
Lender under any resulting liability to the Borrower. Without limiting
the generality of the foregoing, the Issuing Bank and the Lenders 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,
-9-
executor, trustee in bankruptcy, receiver or other person or entity
acting as the representative or in place of, the beneficiary."
(d) Section 5.27 of the Existing Credit Agreement is deleted and replaced by
the following:
"Except for amounts which have been funded by the Borrower, any amount
which the Issuing Bank or any Lender (in the case of a PoA L/C) pays
to any third party in respect of an L/C in satisfaction or partial
satisfaction thereof shall 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 US
Dollar L/Cs, in each case under the Credit under which the L/C was
issued. Any amount which is paid to any third party in respect of an
L/C denominated in Euros or Japanese yen in satisfaction or partial
satisfaction thereof shall be promptly converted to Canadian Dollars
in accordance with the Issuing Bank's customary practices for
conversion of currencies and the amount of Canadian Dollars into which
the amount paid is converted shall be deemed to be a Prime Rate
Advance 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 Borrower. Interest shall be payable on such Advances in accordance
with the terms applicable to such Advances."
(e) The following is added to the Existing Credit Agreement as Section 5.29:
"5.29 PoA L/Cs
5.29.1 Each PoA L/C shall be issued by the Issuing Bank on behalf of
all Lenders as a single multi-Lender L/C, but the obligation of
each Lender thereunder shall be several, and not joint, based
upon its Proportionate Share in effect on the date of issuance of
such PoA L/C, subject to any changes resulting from a change in
its Proportionate Share after the date of issuance of the PoA L/C
that are effected in accordance with the terms of the PoA L/C.
Each PoA L/C shall include the provisions contained in, and shall
be substantially in the form of, Schedule N, and shall otherwise
be in a form satisfactory to the Issuing Bank. Without the
unanimous consent of the Lenders, no PoA L/C shall be issued
which varies the several and not joint nature of the liability of
each Lender thereunder.
5.29.2 Each PoA L/C shall be executed and delivered by the Agent as
Issuing Bank in the name and on behalf of, and as
attorney-in-fact for, each Lender party to such L/C. The Agent
shall act under each PoA L/C as the agent of each Lender to:
(a) receive documents presented by the beneficiary under such
PoA L/C;
-10-
(b) determine whether such documents are in compliance with the
terms and conditions of such PoA L/C; and
(c) notify such Lender and the Borrower that a valid drawing has
been made and the date that the related payment under such
PoA L/C is to be made; provided that the Agent (in such
capacity) shall have no obligation or liability for any
payment to be made under any PoA L/C and each PoA L/C shall
expressly so provide.
5.29.3 Each Lender hereby appoints and designates the Agent as its
attorney in-fact, acting through any duly authorized officer of
the Agent, to execute and deliver each PoA L/C to be issued by
such Lender hereunder in the name and on behalf of such Lender.
Each Lender shall furnish to the Agent a power of attorney in the
form attached as Schedule O, which may be presented as evidence
of the Agent's power to act but which shall not, as between the
Lender and the Agent, vary the power of the Agent as established
in this Agreement. In addition, promptly upon the request of the
Agent, each Lender will furnish to the Agent such other evidence
as any beneficiary of any PoA L/C may reasonably request in order
to demonstrate that the Agent has the power to act as
attorney-in-fact for such Lender to execute and deliver such PoA
L/C. The Borrower and the Lenders agree that each PoA L/C shall
provide that all documents presented thereunder shall be
delivered to the Agent and that all payments thereunder shall be
made by the Lenders obligated thereon through the Agent at the
Branch of Account. Each Lender shall be severally liable under
each PoA L/C in proportion to its Proportionate Share on the date
of issuance of such PoA L/C and each PoA L/C shall specify each
Lender's share of the amount payable thereunder.
5.29.4 The Borrower and each Lender hereby authorize the Agent to
review on behalf of each Lender each document presented under
each PoA L/C. The determination of the Agent as to the conformity
of any documents presented under a PoA L/C to the requirements of
such PoA L/C shall, in the absence of the Agent's gross
negligence or wilful misconduct, be conclusive and binding on the
Borrower and each Lender. The Agent shall, within a reasonable
time following its receipt thereof, examine all documents
purporting to represent a demand for payment under any PoA L/C.
The Agent shall promptly after such examination:
-11-
(a) notify each of the Lenders obligated under such PoA L/C and
the Borrower by telephone (confirmed in writing) of such
demand for payment and of each Lender's share of such
payment;
(b) deliver to each such Lender a copy of each document
purporting to represent a demand for payment under such PoA
L/C; and
(c) notify each Lender and the Borrower whether the demand for
payment was properly made under such PoA L/C.
5.29.5 With respect to any drawing determined by the Agent to have
been properly made under a PoA L/C, each Lender will make a
payment under the PoA L/C in accordance with its liability under
the PoA L/C and this Agreement. The payment shall be made to the
Branch of Account or such other account as the Agent designates
by notice to the Lenders. The Agent will promptly make any such
payment available to the beneficiary of such PoA L/C. Promptly
following any payment by any Lender in respect of any PoA L/C,
the Agent will notify the Borrower of such payment, but any
failure to give or delay in giving such notice shall not relieve
the Borrower of its obligation to reimburse the Lenders with
respect to any such payment. The responsibility of the Agent and
the Lenders in connection with any document presented for payment
under any PoA L/C shall, in addition to any payment obligation
expressly provided in such PoA L/C, be limited to determining
that the documents delivered under such L/C in connection with
such presentment are in conformity with such PoA L/C. The Agent
shall not be required to make any payment under a PoA L/C in
excess of the amount received by it from the Lenders for such
payment.
5.29.6 Without limiting the other provisions of this Agreement, if an
Event of Default or Pending Event of Default has then occurred
and is continuing, the Agent shall notify the Lenders 30 days
before any applicable deadline for notifying the beneficiary of a
PoA L/C that it will not be renewed, in order to avoid automatic
renewal in accordance with the terms of the PoA L/C."
5. AMENDMENT TO ARTICLE VI OF EXISTING CREDIT AGREEMENT
Section 6.1.4(d) of the Existing Credit Agreement is deleted and replaced
by the following:
-12-
"The Credits constitute "New Credit Facilities," "Credit Facilities"
or the equivalent of those terms under any Similar Indenture. As of 31
March 2004, the Threshold Amount was not less than $770,000,000."
6. AMENDMENT TO ARTICLE VII OF EXISTING CREDIT AGREEMENT
(a) Section 7.5.1(g) of the Existing Credit Agreement is deleted and replaced
by the following:
"do anything that would result in the holders of any Similar Notes
becoming entitled to be secured"
(b) Section 7.7.2(e) of the Existing Credit Agreement is deleted and replaced
by the following:
"the amount, as determined under any outstanding Similar Indenture, of
any other obligations that have been classified as being incurred
under clauses (1) or (9) of the definition of "Permitted Debt" in the
0000 Xxxxxxxxx or the corresponding provisions in other applicable
Similar Indentures"
7. ADDITION OF SCHEDULES TO EXISTING CREDIT AGREEMENT
Schedules N and O attached to this agreement are added as Schedules N and O
to the Existing Credit Agreement.
8. 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 3.2.1(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) and the definitions of "Permitted Debt" in the 2001
Indenture and the 2003 Indenture (each as defined in the Syndicated
Credit Agreement), clauses (5) and (6) of the definition of "Permitted
Debt" in the 2004 Indenture (as defined in the Syndicated Credit
Agreement) and the corresponding clauses and definitions in any
Similar Indenture (as defined in the Syndicated Credit Agreement). For
greater
-13-
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."
9. 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 any outstanding Similar Indenture, all in form and
substance satisfactory to the Agent.
10. 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.
11. 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.
12. 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]
-14-
IN WITNESS OF WHICH, the parties have executed this agreement.
NORSKE XXXX CANADA LIMITED
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
By:
------------------------------------
Xxxxx Xxxxxxxx
Vice President Finance and
Chief Financial Officer
NORSKE XXXX CANADA FINANCE LIMITED
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
ELK FALLS PULP AND PAPER LIMITED
By:
------------------------------------
Xxxxx Xxxxxxx
President
[signature page for Third Amending Agreement dated as of 28 May 2004 relating to
Norske Xxxx Canada Limited et al]
-15-
NORSKE XXXX CANADA LIMITED AS MANAGING
PARTNER FOR AND ON BEHALF OF
NORSKECANADA
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
By:
------------------------------------
Xxxxx Xxxxxxxx
Vice President Finance and
Chief Financial Officer
NORSKE XXXX CANADA PULP OPERATIONS
LIMITED
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
NORSKE XXXX CANADA SALES INC.
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
NSCL HOLDINGS INC.
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
NORSKE XXXX CANADA (USA) INC.
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
[signature page for Third Amending Agreement dated as of 28 May 2004 relating to
Norske Xxxx Canada Limited et al]
-16-
NORSKE XXXX CANADA (JAPAN) LTD.
By:
------------------------------------
Ryogi Miyakita
Director and President
NORSKE XXXX CANADA PULP SALES INC.
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA PAPERS SALES LTD.
By:
------------------------------------
Xxxxx Xxxxxxx
President
PACIFICA PAPERS SALES INC.
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA POPLARS LTD.
By:
------------------------------------
Xxxxx Xxxxxxx
President
PACIFICA POPLARS INC.
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA PAPERS US INC.
By:
------------------------------------
Xxxxx Xxxxxxx
Treasurer
[signature page for Third Amending Agreement dated as of 28 May 2004 relating to
Norske Xxxx Canada Limited et al]
-00-
XXX XXXXXXX-XXXXXXXX XXXX, as Agent
By:
------------------------------------
Name:
Title:
[signature page for Third Amending Agreement dated as of 28 May 2004 relating to
Norske Xxxx Canada Limited et al]
SCHEDULE N
FORM OF POA L/C
[see reference in Section 5.29.1]
[Letterhead of The Toronto-Dominion Bank or
Form for Letters of Credit]
Irrevocable Letter of Credit No.:
Date of Issue:
Expiry Date:
Place of Expiry:
Amount:
Beneficiary: Name: _____________________ Applicant: Name: ____________________
Address: __________________ Address: _________________
Attn: _____________________ Attn: ____________________
Fax No.: __________________
The banks and other financial institutions named under the heading on the
signature pages "ISSUING LENDERS:" (collectively, the "ISSUING LENDERS" and,
individually, an "ISSUING LENDER") hereby establish this irrevocable Letter of
Credit in your favour as beneficiary for drawings up to [Canadian Dollars,
United States Dollars, Euros or Japanese Yen] ________ in aggregate amount. This
Letter of Credit is issued, presentable and payable at our office at [address],
or other address of which notice is given as described below, and expires at our
close of business 5:00 PM (local time) on ___________ (the "EXPIRY DATE"). The
aggregate amount available under this Letter of Credit shall be reduced
immediately following the honouring of any draft drawn hereunder in an amount
equal to the amount of such draft. Except when the amount of this Letter of
Credit is increased, this Letter of Credit cannot be modified or revoked without
your consent. The Toronto-Dominion Bank, in addition to acting in its individual
capacity as an Issuing Lender hereunder, is acting as an agent for the other
Issuing Lenders hereunder (in such capacity, together with its successors in
such capacity, the "AGENT").
Funds shall be available under this Letter of Credit upon presentation to the
Agent of a draft substantially in the form of Exhibit A attached hereto, the
original of this Letter of Credit and the following: _____________ [describe any
other requirements for a drawing].
Each Issuing Lender hereby undertakes, severally according to the percentage set
forth next to its signature below (such Issuing Lender's "APPLICABLE
PERCENTAGE") and not jointly or jointly and severally with any other Issuing
Lender, that drafts drawn under and in strict compliance with the terms of this
Letter of Credit will be duly honoured by paying to the Agent such Issuing
Lender's share (according to its Applicable Percentage) of the amount of such
draft. The Agent hereby undertakes that any amount so received by it will be
made available to you promptly remitting the payment so received, in like funds,
in accordance with your instructions.
The obligation of each Issuing Lender under this Letter of Credit is several and
not joint or joint and several and shall at all times be an amount equal to such
Issuing Lender's Applicable Percentage of the aggregate undrawn amount of this
Letter of Credit (and of each drawing under this Letter of Credit).
-2-
This Letter of Credit has been executed and delivered by the Agent in the name
and on behalf of, and as attorney-in-fact for, each Issuing Lender. The Agent is
authorized to act under this Letter of Credit as the agent of each Issuing
Lender in order to:
(a) receive drafts, other demands for payment and other documents
presented by you under this Letter of Credit;
(b) determine whether such drafts, demands and documents are in compliance
with the terms and conditions of this Letter of Credit;
(c) notify such Issuing Lender and the applicant that a valid drawing has
been made and the date that the related disbursement is to be made;
(d) notify you that this Letter of Credit will not be renewed. [Note:
insert this clause only if the Letter of Credit provides that it will
be renewed automatically unless notice to the contrary is given]
The Agent undertakes that it will promptly notify each Issuing Lender and the
applicant of any valid drawing under this Letter of Credit.
You agree that the Agent shall have no obligation or liability to honour any
drawing under this Letter of Credit (subject to the liability of The
Toronto-Dominion Bank in its capacity as an Issuing Lender and the obligation of
the Agent to remit funds paid to the Agent from an Issuing Lender, as set forth
above) and that neither any Issuing Lender nor the Agent shall be responsible
for the failure of any other Issuing Lender to make a payment to be made by such
other Issuing Lender hereunder.
This Letter of Credit sets forth in full the terms of our and each Issuing
Lender's undertaking, and such undertaking is not subject to any agreement,
requirement or qualification and shall not in any way be amended, modified,
amplified or limited by reference to any document, instrument or agreement
referred to herein or in which this Letter of Credit is referred to or to which
this Letter of Credit relates (other than the annexes attached hereto, if any),
and any such reference shall not be deemed to incorporate herein by reference
any document, instrument or agreement. The obligation of each Issuing Lender
under this Letter of Credit is the individual obligation of such Issuing Lender
and is in no way contingent upon reimbursement of any drawing hereunder or upon
any Issuing Lender's ability to perfect a lien or security interest.
Each Issuing Lender's obligation to pay is irrevocable and, subject to
compliance with the requirements hereof, unconditional and, in furtherance and
support thereof and without limiting the irrevocable and unconditional nature of
each Issuing Lender's obligations to the beneficiary hereunder, any demand by
the beneficiary shall be honoured without any inquiry as to the rights, claims
or defences (legal or equitable) of the applicant against the beneficiary and
without regard to any other defence to the beneficiary's demand for payment,
arising as a result of any dispute between the beneficiary and the applicant or
between the applicant and the Issuing Lenders.
This Letter of Credit shall be governed by and construed in accordance with the
law of the Province of [_____] (without reference to choice of law doctrine) and
is subject to the Uniform Customs and Practice for Letter of Credits (1993
Revision), International Chamber of Commerce Publication No. 500 (the "UCP"). In
the event of any conflict between the law of the Province of [_____] and the
UCP, the UCP shall control. Notwithstanding Article 17 of the UCP, if this
Letter
-3-
of Credit expires during an interruption of business as described in said
Article 17, each Issuing Lender agrees to effect payment if this Letter of
Credit is drawn against within 30 days after the resumption of business by the
Agent. [insert the immediately preceding sentence, if and as applicable]
This Letter of Credit [may not be assigned or transferred, except that it]
[insert the immediately preceding clause, if and as applicable]shall inure to
the benefit of any successor by operation of law of the named beneficiary
hereof, including, without limitation, any liquidator, receiver or trustee for
such named beneficiary.
All communications regarding this Letter of Credit should be addressed to The
Toronto-Dominion Bank, [address], Attention: __________________, referencing
Irrevocable Letter of Credit No. ____. Upon or in anticipation of closure of the
place where this Letter of Credit is presentable and payable, the Agent may give
notice to the beneficiary, not less than 30 days before the Expiry Date, of
another reasonable place where this Letter of Credit shall be presentable and
payable, and if the Agent does so then this Letter of Credit shall be
presentable and payable at that place and not any previously designated place.
An Issuing Lender may, subject to the replacement thereof with a new Lender
having the minimum credit rating set forth below or with your consent (as
applicable), cease to be a party to, and a new Lender may become a party to,
this Letter of Credit, and the Applicable Percentage of an Issuing Lender may
change, but no such event will reduce the then available amount under this
Letter of Credit. Upon the occurrence of any such event, the Agent will provide
prompt notice to you of such event, including any change in the identities of
the Issuing Lenders severally but not jointly or jointly and severally liable in
respect of the aggregate undrawn amount of this Letter of Credit (based upon
their respective Applicable Percentages thereof) and any change in such
Applicable Percentages. If a new Lender becomes a party to this Letter of Credit
and the credit rating of such new Lender (or its parent) is lower than A minus
(A-) as rated by Standard & Poor's Rating Group or the equivalent by any other
nationally recognized rating agency, the consent of the beneficiary to such
change shall be required.
Very truly yours,
THE TORONTO-DOMINION BANK, as Agent
By:
------------------------------------
Name:
Title:
-4-
Applicable Percentage ISSUING LENDERS:
____% THE TORONTO-DOMINION BANK,
By:
------------------------------------
Name:
Title:
____% [NAME OF LENDER],
by The Toronto-Dominion Bank, as
Attorney-in-Fact
By:
------------------------------------
Name:
Title:
____% [NAME OF LENDER],
by The Toronto-Dominion Bank, as
Attorney-in-Fact
By:
------------------------------------
Name:
Title:
____% [NAME OF LENDER],
by The Toronto-Dominion Bank, as
Attorney-in-Fact
By:
------------------------------------
Name:
Title:
____% [NAME OF LENDER],
by The Toronto-Dominion Bank, as
Attorney-in-Fact
By:
------------------------------------
Name:
Title:
EXHIBIT A
FORM OF DRAFT
[Date, place] CAD, USD, EUR or JPY _____________________________________________
At sight pay to the order of ____________________ the sum of ___________________
Canadian Dollars, United States Dollars, Euros or Japanese Yen
To The Toronto-Dominion Bank (insert address) as Agent for the financial
institutions listed immediately below ("Issuing Lenders"), each severally and
not jointly or jointly and severally and each with respect to only the
percentage of the amount drawn herein set out opposite its name:
_____% [name of Issuing Lender]
_____% [name of Issuing Lender]
_____% [name of Issuing Lender]
_____% [name of Issuing Lender]
Except in its individual capacity as an Issuing Lender, the Agent shall have no
obligation or liability hereunder.
Drawn under letter of credit No. _____
[Beneficiary]
(signature)
----------------------------
SCHEDULE O
FORM OF POWER OF ATTORNEY FOR POA L/CS
[see reference in Section 5.29.3]
RECITALS:
A. The undersigned (the "ISSUING LENDER") is party to a credit agreement between
Norske Xxxx Canada Limited, Norske Xxxx Canada Finance Limited and the other
restricted parties and lenders from time to time party thereto and The
Toronto-Dominion Bank in its capacity as Administration Agent (the "AGENT"),
dated as of 19 July 2002, as amended by amending agreements dated as of 8 May
2003, 6 August 2003 and 28 May 2004 (as so amended and as further amended,
supplemented, restated and replaced from time to time, the "CREDIT AGREEMENT").
B. Capitalized terms used in this agreement and not otherwise defined have the
meanings defined in the Credit Agreement.
C. The Issuing Lender has agreed, pursuant to Section 5.29.3 of the Credit
Agreement, to appoint the Agent, acting through any duly authorized officer of
the Agent, as its attorney-in-fact to execute and deliver certain letters of
credit to be issued by the Issuing Lender under the Credit Agreement in the name
of and on behalf of the Issuing Lender.
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. APPOINTMENT
The Issuing Lender hereby appoints the Agent (the "ATTORNEY") as its
attorney-in-fact, acting through any duly authorized officer of the Attorney,
with full authority to execute and deliver letters of credit applied for by
Norske Xxxx Canada Finance Limited under the Credit Agreement, and to do such
other things relating to the administration and payment of such letters of
credit as may be specified in them or incidental thereto.
2. INTERPRETATION
This power of attorney for property shall be read with such changes of gender or
number as the context may require.
3. EFFECTIVE IMMEDIATELY
This power of attorney becomes effective on the date of execution specified
below.
4. PROOF OF ATTORNEY'S AUTHORITY
The presentation of this power of attorney, or of a notarial copy of this power,
by an officer of the Agent is sufficient proof to a person to whom such power or
notarial copy is presented, without further investigation by such person, of the
Attorney's authority to act.
-2-
The Attorney's assertion, whether in speech or writing, that any document
executed by the Attorney or any act taken by the Attorney is authorized by this
power of attorney, shall be sufficient proof to a person to whom such assertion
is made, without further investigation by such person, of the Attorney's
authority to execute such document or perform such act.
IN WITNESS WHEREOF the Issuing Lender has on [date] signed this power of
attorney written on this and [one] preceding page and confirms that it has the
authority to make this power of attorney, and that all acts taken hereunder by
the Attorney are binding on the Issuing Lender.
[NAME OF LENDER]
By:
------------------------------------
Name:
Title:
