NATIONAL-OILWELL, INC. FORM 10-Q FILED NOVEMBER 12, 2002
EXHIBIT 10.2
CREDIT AGREEMENT
DATED AS OF JULY 30, 2002
AMONG
NATIONAL-OILWELL, L.P.,
AS U.S. BORROWER,
NATIONAL-OILWELL CANADA LTD. AND DRECO ENERGY SERVICES LTD.,
AS CANADIAN BORROWERS,
NATIONAL OILWELL NORWAY HOLDINGS, A.S.,
AS NORWEGIAN BORROWER,
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION,
AS U.S. ADMINISTRATIVE AGENT AND AS A U.S. LENDER,
THE BANK OF NOVA SCOTIA,
AS CANADIAN ADMINISTRATIVE AGENT, AS A U.S. LENDER AND AS A CANADIAN
LENDER,
DEN NORSKE BANK ASA
AS NORWEGIAN ADMINISTRATIVE AGENT, AS A U.S. LENDER AND AS A
NORWEGIAN LENDER,
THE OTHER LENDERS NOW OR HEREAFTER
PARTIES HERETO
COMERICA BANK-TEXAS,
AS A DOCUMENTATION AGENT AND AS A U.S. LENDER
THE BANK OF NEW YORK,
AS A DOCUMENTATION AGENT AND AS A U.S. LENDER
AND
XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION,
AS LEAD ARRANGER AND SOLE BOOK RUNNER
(US$135,000,000 U.S. LOAN FACILITY,
US$20,000,000 CANADIAN LOAN FACILITY
AND
US$20,000,000 NORWEGIAN LOAN FACILITY)
32
ARTICLE I Definitions.................................................................................. 1
Section 1.1 Certain Defined Terms.................................................................... 1
Section 1.2 Miscellaneous............................................................................ 26
Section 1.3 Computation of Time Periods.............................................................. 26
Section 1.4 Accounting Terms; Changes in GAAP........................................................ 26
Section 1.5 References to Agreements and Laws........................................................ 26
ARTICLE II Commitments; Loans; BA's and Letters of Credit............................................... 26
Section 2.1 Loans and BA's........................................................................... 26
Section 2.2 U.S. Swing Line Borrowings............................................................... 29
Section 2.3 Letters of Credit........................................................................ 30
Section 2.4 Certain Provisions Relating to Bankers' Acceptances...................................... 37
Section 2.5 Terminations, Reductions or Reallocations of Commitments................................. 40
Section 2.6 Utilization Fees......................................................................... 42
Section 2.7 Facility Fees............................................................................ 42
Section 2.8 Several Obligations...................................................................... 43
Section 2.9 Evidence of Debt......................................................................... 43
Section 2.10 Use of Proceeds......................................................................... 45
Section 2.11 Currency Fluctuations................................................................... 45
Section 2.12 Increase of Commitment.................................................................. 46
Section 2.13 Extension of Maturity Date.............................................................. 47
ARTICLE III Borrowings, Prepayments and Interest Options................................................. 48
Section 3.1 Borrowings............................................................................... 48
Section 3.2 Prepayments.............................................................................. 49
Section 3.3 Interest; Etc............................................................................ 50
ARTICLE IV Payments; Pro Rata Treatment; Computations, Etc.............................................. 55
Section 4.1 Payments; Tax Forms...................................................................... 55
Section 4.2 Pro Rata Treatment....................................................................... 58
Section 4.3 Certain Actions, Notices, Etc............................................................ 58
Section 4.4 Non-Receipt of Funds by Any Administrative Agent......................................... 59
Section 4.5 Sharing of Payments, Etc................................................................. 59
Section 4.6 Replacement of Lenders................................................................... 60
ARTICLE V Conditions Precedent......................................................................... 60
Section 5.1 Initial Loans, Letters of Credit and Bankers' Acceptances................................ 60
Section 5.2 All Loans, Letters of Credit and Bankers' Acceptances.................................... 62
ARTICLE VI Representations and Warranties............................................................... 62
Section 6.1 Organization............................................................................. 63
Section 6.2 Financial Statements..................................................................... 63
Section 6.3 Enforceable Obligations; Authorization................................................... 63
Section 6.4 Other Debt............................................................................... 64
Section 6.5 Litigation............................................................................... 64
(i)
Section 6.6 Taxes.................................................................................... 64
Section 6.7 Regulations T, U and X................................................................... 64
Section 6.8 Subsidiaries............................................................................. 64
Section 6.9 No Untrue or Misleading Statements....................................................... 64
Section 6.10 ERISA................................................................................... 64
Section 6.11 Investment Company Act.................................................................. 65
Section 6.12 Public Utility Holding Company Act...................................................... 65
Section 6.13 Compliance.............................................................................. 65
Section 6.14 Environmental Matters................................................................... 65
ARTICLE VII Affirmative Covenants........................................................................ 65
Section 7.1 Section 7.1 Taxes, Existence, Regulations, Property, Etc................................. 66
Section 7.2 Financial Statements and Information..................................................... 66
Section 7.3 Inspection............................................................................... 67
Section 7.4 Further Assurances....................................................................... 67
Section 7.5 Books and Records........................................................................ 67
Section 7.6 Insurance................................................................................ 67
Section 7.7 Notice of Certain Matters................................................................ 67
Section 7.8 Capital Adequacy......................................................................... 68
Section 7.9 ERISA Information and Compliance......................................................... 68
Section 7.10 Conduct of Business..................................................................... 69
Section 7.11 Use of Proceeds......................................................................... 69
Section 7.12 Pari Passu.............................................................................. 70
ARTICLE VIII Negative Covenants........................................................................... 70
Section 8.1 Borrowed Money Indebtedness.............................................................. 70
Section 8.2 Liens.................................................................................... 71
Section 8.3 Contingent Liabilities................................................................... 71
Section 8.4 Mergers, Consolidations and Dispositions of Assets....................................... 72
Section 8.5 Redemption, Dividends and Distributions.................................................. 72
Section 8.6 Transactions with Related Parties........................................................ 72
Section 8.7 Loans and Investments.................................................................... 73
Section 8.8 Organizational Documents, etc............................................................ 73
Section 8.9 Unfunded Liabilities..................................................................... 73
Section 8.10 Subordinated Indebtedness............................................................... 73
Section 8.11 No Burdensome Agreements; Prohibitions of Liens
or Subsidiary Dividends...................................................................... 73
Section 8.12 Other Agreements........................................................................ 73
Section 8.13 Nature of Business...................................................................... 73
Section 8.14 Capital Expenditures.................................................................... 73
Section 8.15 Maximum Leverage Ratio.................................................................. 74
Section 8.16 Minimum Interest Charge Coverage Ratio.................................................. 74
ARTICLE IX Defaults..................................................................................... 74
Section 9.1 Events of Default........................................................................ 74
Section 9.2 Right of Setoff.......................................................................... 76
(ii)
Section 9.3 Collateral Account....................................................................... 77
Section 9.4 Preservation of Security for Unmatured Obligations....................................... 78
Section 9.5 Currency Conversion After Maturity....................................................... 78
Section 9.6 Remedies Cumulative...................................................................... 78
ARTICLE X Administrative Agents........................................................................ 79
Section 10.1 Appointment, Powers and Immunities...................................................... 79
Section 10.2 Reliance................................................................................ 80
Section 10.3 Defaults................................................................................ 81
Section 10.4 Material Written Notices................................................................ 81
Section 10.5 Rights as a Lender...................................................................... 81
Section 10.6 Indemnification......................................................................... 81
Section 10.7 Non-Reliance on Administrative Agents and Other Lenders................................. 82
Section 10.8 Failure to Act.......................................................................... 82
Section 10.9 Resignation or Removal of Administrative Agent.......................................... 82
Section 10.10 No Partnership......................................................................... 84
ARTICLE XI Miscellaneous................................................................................ 84
Section 11.1 Waiver.................................................................................. 84
Section 11.2 Notices................................................................................. 84
Section 11.3 Expenses, Etc........................................................................... 85
Section 11.4 Indemnification......................................................................... 85
Section 11.5 Amendments, Etc......................................................................... 86
Section 11.6 Successors and Assigns.................................................................. 87
Section 11.7 Limitation of Interest.................................................................. 89
Section 11.8 Survival................................................................................ 90
Section 11.9 Captions................................................................................ 90
Section 11.10 Counterparts........................................................................... 90
Section 11.11 Venue; Governing Law................................................................... 90
Section 11.12 Severability........................................................................... 91
Section 11.13 Interest Act (Canada).................................................................. 92
Section 11.14 Judgment Currency...................................................................... 92
Section 11.15 Conflicts Between This Agreement and the Other Loan Documents.......................... 92
Section 11.16 Limitation on Charges; Substitute Lenders; Non-Discrimination.......................... 92
Section 11.17 Multiple Persons Comprising Canadian Borrower.......................................... 93
Section 11.18 Confidentiality........................................................................ 93
Section 11.19 Waiver of Right to Trial by Jury....................................................... 94
(iii)
EXHIBITS
A-1 -- Request for Extension of Credit (U.S. Borrower)
A-2 -- Request for Extension of Credit (Canadian Borrowers)
A-3 -- Request for Extension of Credit (Norwegian Borrower)
B -- Rate Designation Notice
C -- Canadian Note
D -- U.S. Note
E -- Norwegian Note
F -- U.S. Swing Line Note
G -- Assignment and Acceptance
H -- Compliance Certificate
I -- Bankers' Acceptance Notice
J -- Canadian Dollar Note
K -- Existing Borrowed Money Indebtedness
L -- Norwegian Krone Note
M -- Form of Commitment Increase (Increasing Lender)
N -- Form of Commitment Increase (Additional Lender)
O -- Outstanding U.S., Canadian and Norwegian Letters of Credit
SCHEDULES
Schedule 6.8 Subsidiaries
(i)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is made and entered into as of
July 30, 2002 (the "Effective Date"), by and among NATIONAL-OILWELL, L.P., a
Delaware limited partnership ("U.S. Borrower"); NATIONAL-OILWELL CANADA LTD., an
Alberta corporation ("NOCL" or a "Canadian Borrower"); DRECO ENERGY SERVICES
LTD., an Alberta corporation ("DESL" or a "Canadian Borrower" and, collectively
with NOCL, "Canadian Borrowers"); NATIONAL OILWELL NORWAY HOLDINGS, A.S., a
Norwegian corporation ("Norwegian Borrower"), each of the lenders which is or
may from time to time become a party hereto (individually, a "Lender" and,
collectively, the "Lenders", which terms shall include U.S. Lenders, Canadian
Lenders and Norwegian Lenders); XXXXX FARGO BANK TEXAS, NATIONAL ASSOCIATION
("Xxxxx Fargo"), a national banking association, as administrative agent for the
U.S. Lenders (in such capacity, together with its successors in such capacity,
the "U.S. Administrative Agent"), THE BANK OF NOVA SCOTIA, as administrative
agent for the Canadian Lenders (in such capacity, together with its successors
in such capacity, the "Canadian Administrative Agent"), DEN NORSKE BANK ASA, as
administrative agent for the Norwegian Lenders (in such capacity, together with
its successors in such capacity, the "Norwegian Administrative Agent"), THE BANK
OF NEW YORK, as a Documentation Agent and a U.S. Lender and COMERICA BANK-TEXAS,
as a Documentation Agent and a U.S. Lender.
The parties hereto agree as follows:
DEFINITIONS
CERTAIN DEFINED TERMS.
Unless a particular term, word or phrase is otherwise defined or the
context otherwise requires, capitalized terms, words and phrases used herein or
in the Loan Documents (as hereinafter defined) have the following meanings (all
definitions that are defined in this Agreement in the singular have the same
meanings when used in the plural and vice versa):
"Acceptance Fee" means the fee payable in Canadian Dollars to each
Canadian Lender in respect of the Bankers' Acceptances accepted by such Canadian
Lender computed in accordance with Section 2.4(c).
"Accounts" has the meaning assigned to it in the Uniform Commercial
Code enacted in the State of Texas in force on the Effective Date.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Parent or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger,
consolidation or otherwise or (b) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of related
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage
of voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Additional Interest" means the aggregate of all amounts accrued or
paid pursuant to the Notes or any of the other Loan Documents (other than
interest on the Notes at the Stated Rate and any Acceptance Fee) which, under
applicable laws, are or may be deemed to constitute interest on the indebtedness
evidenced by the Notes or the other Obligations.
"Additional Lender" has the meaning set forth in Section 2.12.
"Adjusted EBITDA" means, with reference to any period, without
duplication, Consolidated EBITDA for such period plus the EBITDA associated with
any entity or assets acquired in an Acquisition, as determined in accordance
with the financial performance of such acquired entity or assets for such
period.
"Administrative Agents" means U.S. Administrative Agent, Canadian
Administrative Agent, and Norwegian Administrative Agent, collectively.
"Affiliate" means any Person controlling, controlled by or under common
control with any other Person. For purposes of this definition, "control"
(including "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or otherwise.
"Aggregate Commitments" means the sum of the U.S. Commitment, Canadian
Commitment and Norwegian Commitment.
"Agreement" means this Credit Agreement, as it may from time to time be
amended, modified, restated or supplemented.
"Annual Financial Statements" means the annual financial statements of
the Parent.
"Applicable BA Discount Rate" means, as applicable to a Bankers'
Acceptance being purchased by any Canadian Lender on any day, the percentage
discount rate (expressed to two decimal places and rounded upward, if necessary,
to the nearest 1/100th of 1%) quoted by the Canadian Administrative Agent as
that at which the Canadian Administrative Agent would, in accordance with normal
practice, at or about 12:00 noon (Calgary, Alberta time), on such day, be
prepared to purchase Bankers' Acceptances in an amount and having a maturity
date comparable to the amount and maturity date of such Bankers' Acceptances.
"Applicable Canadian Pension Legislation" means, at any time, any
pension legislation then applicable to Canadian Borrowers, including the Pension
Benefits Act (Ontario), including all regulations made thereunder, and all
rules, regulations, rulings and interpretations made or issued by any
Governmental Authority having or asserting jurisdiction in respect thereof.
"Applications" means all applications and agreements for Letters of
Credit, or similar instruments or agreements, in the relevant Issuing Bank's
customary form (modified, to the extent
2
necessary to avoid being inconsistent with this Agreement), now or hereafter
executed by any Person in connection with any Letter of Credit now or hereafter
issued or to be issued under the terms hereof at the request of any Person.
"Assignment and Acceptance" has the meaning ascribed to such term in
Section 11.6 hereof.
"Availability Period" means, for each Lender, the period from and
including the Effective Date to the Termination Date.
"BA Discount Proceeds" means, in respect of any Bankers' Acceptance
being purchased by a Canadian Lender on any day under Section 2.4, an amount
(rounded to the nearest whole Canadian cent, and with one-half of one Canadian
cent being rounded up) calculated on such day by multiplying:
The face amount of such Bankers' Acceptance; by
THE QUOTIENT EQUAL TO ONE DIVIDED BY THE SUM OF ONE PLUS THE PRODUCT OF: the
Applicable BA Discount Rate (expressed as a decimal) applicable to such Bankers'
Acceptance; and
a fraction, the numerator of which is the number of days remaining in the term
of such Bankers' Acceptance and the denominator of which is 365; with such
quotient being rounded up or down to the nearest fifth decimal place and
..000005 being rounded up.
"Bankers' Acceptance" or "BA" means a xxxx of exchange denominated in
Canadian Dollars drawn by a Canadian Borrower on and accepted by a Canadian
Lender pursuant to Section 2.4 hereof.
"Bankers' Acceptance Liabilities" means, at any time and in respect of
any Bankers' Acceptance, the face amount thereof if still outstanding and unpaid
or, following maturity and payment thereof, the aggregate unpaid amount of all
Reimbursement Obligations at that time due and payable in respect of the payment
of such Bankers' Acceptance upon maturity. Bankers' Acceptance Notice has the
meaning specified in Section 2.4(a).
"Bankruptcy Code" means (i) the United States Bankruptcy Code, (ii) the
Bankruptcy and Insolvency Act (Canada), (iii) the Companies' Creditors
Arrangement Act (Canada), as the same may be amended and together with any
successor statutes and (iv) Norwegian Bankruptcy Code.
"Base Rate" means, for any Lender and for any day, a rate per annum
equal to the lesser of (a) the greater of (1) the applicable Prime Rate for that
day and (2) the Federal Funds Rate for that day plus 1/2 of 1% or (b) the
Ceiling Rate. If for any reason any applicable Administrative Agent shall have
determined (which determination shall be conclusive and binding, absent manifest
error) that it is unable to ascertain the Federal Funds Rate for any reason, the
Base Rate shall, until the circumstances giving rise to such inability no longer
exist, be the lesser of (a) the applicable Prime Rate from time to time in
effect or (b) the Ceiling Rate.
"Base Rate Borrowing" means that portion of the principal balance of
the Loans at any time bearing interest at the Base Rate.
3
"Borrowed Money Indebtedness" means, with respect to any Person,
without duplication, (i) all obligations of such Person for borrowed money, (ii)
all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (iii) all obligations of such Person under conditional sale or
other title retention agreements relating to Property purchased by such Person
(other than obligations excluded in clause (iv) of this definition), (iv) all
obligations of such Person issued or assumed as the deferred purchase price of
Property or services (excluding trade accounts payable in the ordinary course of
business and deferred payments for services to employees and former employees
incurred in the ordinary course of such Person's business), (v) all capital
lease obligations of such Person, (vi) all obligations of others secured by any
Lien on Property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (vii) all contingent obligations
(excluding reimbursement obligations in respect of amounts actually drawn under
letters of credit or due and payable in respect of matured bankers' acceptances)
of such Person in respect of outstanding letters of credit issued for the
account of such Person or bankers' acceptances drawn by such Person, (viii) all
financial guarantees of such Person, and (ix) Interest Rate Risk Indebtedness of
such Person.
"Borrowers" means U.S. Borrower, Canadian Borrowers and Norwegian
Borrower, collectively.
"Business Day" means (i) any day other than a day on which commercial
banks are authorized or required to close in San Francisco, California, (ii) if
the applicable Business Day relates to any Canadian Commitment or Canadian
Obligation, any day which is a "Business Day" described in clause (i) of this
definition but which is not a day on which commercial banks are authorized to
close in Calgary, Alberta, and (iii) if the applicable Business Day relates to
any Norwegian Commitment or Norwegian Obligation, any day which is a "Business
Day" described in (i) of this definition but which is not a day on which
commercial banks are authorized to close in Oslo, Norway.
"Calculation Date" means the last Business Day of each month.
"Canadian Administrative Agent" has the meaning assigned to it in the
introductory paragraph of this Agreement.
"Canadian Borrower" has the meaning assigned to it in the introductory
paragraph of this Agreement.
"Canadian Borrowers" has the meaning assigned to it in the introductory
paragraph of this Agreement.
"Canadian Commitment" means, as to any Canadian Lender, the amount, if
any, set forth opposite such Canadian Lender's name on the signature pages
hereof under the caption "Canadian Commitment", or otherwise provided for in an
Assignment and Acceptance Agreement (as the same may be increased or reduced
from time to time pursuant to Section 2.5, 2.12, 11.6(b) or 11.16 hereof).
4
"Canadian Dollar Notes" means the Notes of Canadian Borrowers
evidencing the Canadian Loans denominated in Canadian Dollars, in the form of
Exhibit J hereto.
"Canadian Dollars" or "C$" means lawful money of Canada.
"Canadian Lender" means each lender signatory hereto with (i) prior to
the Termination Date, a Canadian Commitment and (ii) on and after the
Termination Date, any outstanding Canadian Obligations.
"Canadian Letter of Credit" has the meaning assigned to such term in
Section 2.3 hereof.
"Canadian Loan" means a Loan made pursuant to Section 2.1(b) hereof.
"Canadian Notes" means the Notes of Canadian Borrowers evidencing the
Canadian Loans denominated in Dollars, in the form of Exhibit C hereto.
"Canadian Obligations" means, as at any date of determination thereof,
the sum of the following (determined without duplication and, if in Canadian
Dollars, converted to Dollars at the Exchange Rate on the most recent Reset
Date): (i) the aggregate principal amount of Canadian Loans outstanding
hereunder on such date, plus (ii) the aggregate amount of the Bankers'
Acceptance Liabilities outstanding on such date, plus (iii) the aggregate amount
of Letter of Credit Liabilities outstanding on such date relating to Canadian
Letters of Credit.
"Canadian Prime Loans" means Loans made pursuant to Section 2.1(b)
hereof which are denominated in Canadian Dollars.
"Canadian Prime Rate" means, on any day, as to Loans denominated in
Canadian Dollars made to either or both of Canadian Borrowers, the lesser of (1)
the Ceiling Rate or (2) the greater of (a) the annual rate of interest announced
from time to time by the Canadian Administrative Agent as its prime rate then in
effect at its Principal Office, being the reference rate used by the Canadian
Administrative Agent for determining interest rates on commercial loans
denominated in Canadian Dollars to borrowers in Canada, and (b) an annual rate
of interest equal to the sum of (i) the CDOR Rate and (ii) 1.00% per annum. The
Canadian Prime Rate is a reference rate and does not necessarily represent the
lowest or best rate or a favored rate, and Xxxxx Fargo, the Canadian
Administrative Agent, each Administrative Agent and each Lender disclaims any
statement, representation or warranty to the contrary. Xxxxx Fargo, the Canadian
Administrative Agent, any Administrative Agent or any Lender may make commercial
loans or other loans at rates of interest at, above or below the Canadian Prime
Rate.
"Capital Expenditures" means, with respect to any Person for any
period, expenditures in respect of fixed or capital assets by such Person,
including capital lease obligations payable during such period (to the extent
not already included), which would be reflected as additions to Property, plant
or equipment on a balance sheet of such Person and its consolidated
Subsidiaries, if any, prepared in accordance with GAAP; but excluding
expenditures during such period for the repair or replacement of any fixed or
capital asset which was destroyed or damaged, in whole or in part, to the extent
financed by the proceeds of an insurance policy maintained by such Person.
Capital Expenditures shall not include Permitted Investments or the assets owned
by any Person acquired
5
by way of a Permitted Investment or assets comprising substantially all of an
entire business which is acquired by the applicable Person.
"CDOR Rate" means, on any day, an annual rate of interest equal to the
average 30 day rate applicable to Canadian bankers' acceptances appearing on the
"Reuters Screen CDOR Page" (as defined in the International Swap Dealer
Association, Inc. (1991 ISDA) definitions, as modified and amended from time to
time) as of 12:00 noon (Calgary, Alberta time) on such day, or if such day is
not a Business Day, then on the immediately preceding Business Day; provided,
however, if such rate does not appear on the Reuters Screen CDOR Page as
contemplated, then the CDOR Rate on any day shall be calculated as the
arithmetic mean of the 30 day rates applicable to Canadian bankers' acceptances
quoted by the Canadian Lenders which are listed in Schedule I to the Bank Act
(Canada) as of 12:00 noon (Calgary, Alberta time) on such day, or if such day is
not a Business Day, then on the immediately preceding Business Day.
"Ceiling Rate" means, for any Lender and on any day, the maximum
nonusurious rate of interest, if any, permitted to such Lender for that day by
applicable law, including without limitation any federal law or state law that
legally permits a higher interest rate than other state, provincial or other
local law, stated as a rate per annum. To the extent that the interest rate laws
of the State of Texas are applicable to any Lender, the applicable interest rate
ceiling is the indicated (weekly) ceiling determined in accordance with Chapter
303 of the Texas Finance Code, as amended, and, to the extent that with respect
to any Lender, any Obligation under this Agreement, any Note or any other Loan
Document is deemed an open end account as such term is defined in Chapter 302 of
the Texas Finance Code, as amended, the U.S. Administrative Agent retains the
right to modify the interest rate of such Lender in accordance with applicable
law. Without notice to Borrowers or any other Person, the Ceiling Rate of an
applicable Lender shall automatically fluctuate upward and downward as and in
the amount by which such maximum nonusurious rate of interest permitted by
applicable law fluctuates.
"Change of Control" means a change resulting when any Unrelated Person
or any Unrelated Persons (other than any Person that Beneficially Owns at least
10% of the aggregate voting power of all classes of Voting Stock of the Parent
as of the date hereof) acting together which would constitute a Group together
with any Affiliates or Related Persons thereof (in each case also constituting
Unrelated Persons) shall at any time either (i) Beneficially Own more than 50%
of the aggregate voting power of all classes of Voting Stock of Parent or (ii)
succeed in having sufficient of its or their nominees elected to the Board of
Directors of Parent such that such nominees, when added to any existing
directors remaining on the Board of Directors of Parent after such election who
is an Affiliate or Related Person of such Person or Group, shall constitute a
majority of the Board of Directors of Parent. As used herein (a) "Beneficially
Own" means "beneficially own" as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended, or any successor provision thereto; provided,
however, that, for purposes of this definition, a Person shall not be deemed to
Beneficially Own securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates until such
tendered securities are accepted for purchase or exchange; (b) "Group" means a
"group" for purposes of Section 13(d) of the Securities Exchange Act of 1934, as
amended; (c) "Unrelated Person" means at any time any Person other than Parent
or any Subsidiary of Parent and other than any trust for any employee benefit
plan of Parent or any Subsidiary of Parent; (d) "Related Person" of any Person
shall mean
6
any other Person owning (1) 5% or more of the outstanding common stock of such
Person or (2) 5% or more of the Voting Stock of such Person; and (e) "Voting
Stock" of any Person shall mean capital stock of such Person which ordinarily
has voting power for the election of directors (or persons performing similar
functions) of such Person, whether at all times or only so long as no senior
class of securities has such voting power by reason of any contingency.
"Code" means the Internal Revenue Code of 1986, as amended, as now or
hereafter in effect, together with all regulations, rulings and interpretations
thereof or thereunder by the Internal Revenue Service.
"Commercial Letter of Credit" means a commercial letter of credit as
that term is commonly referred to in the banking industry.
"Commitment" means, with respect to each Lender the commitment of such
Lender to make a U.S. Loan, Canadian Loan, or Norwegian Loan as the case may be,
and to acquire participations in Letters of Credit and Bankers' Acceptances, as
applicable, as such commitment may be adjusted pursuant to Sections 2.5 and
2.12. The initial amount of each Lender's Commitment is set forth next to such
Lender's name on its respective signature page.
"Commitment Increase" has the meaning set forth in Section 2.12 of this
Agreement.
"Commitment Percentage" means, as to any Lender, the percentage
equivalent of a fraction the numerator of which is the amount of such Lender's
U.S. Commitment, Canadian Commitment or Norwegian Commitment, as the case may
be, and the denominator of which is the aggregate amount of U.S. Commitment,
Canadian Commitment or Norwegian Commitment, as the case may be, of all Lenders,
as of the Effective Date (subject to adjustment in accordance with (i)
reallocations pursuant to Section 2.5(c) hereof, (ii) Commitment Increases
pursuant to Section 2.12 hereof, (iii) the removal or replacement of a Lender
pursuant to Section 4.6, or (iv) an assignment pursuant to Section 11.6(b)).
"Compliance Certificate" means a certificate of the Parent
substantially in the form of the attached Exhibit H.
"Consenting Lenders" has the meaning set forth in Section 2.13(b).
"Consolidated" refers to the consolidation of the accounts of the
Parent and its Subsidiaries in accordance with GAAP, including, when used in
reference to the Parent, principles of consolidation consistent with those
applied in the preparation of the Financial Statements.
"Consolidated EBITDA" means, with reference to any period the EBITDA of
the Parent and its Subsidiaries calculated on a consolidated basis for such
period, determined in accordance with GAAP.
"Consolidated Net Worth" means at any time, preferred stock and the
consolidated stockholders' equity (including paid-in capital and retained
earnings) of Parent and its Subsidiaries calculated on a consolidated basis as
of such time (excluding treasury stock), determined in accordance with GAAP.
7
"Consolidated Total Capitalization" means the sum of, without
duplication, (i) Consolidated Total Funded Debt and (ii) Consolidated Net Worth,
determined in accordance with GAAP.
"Consolidated Total Funded Debt" means Borrowed Money Indebtedness
(exclusive of the categories of Borrowed Money Indebtedness, other than
obligations in respect of Bankers' Acceptances, described in clauses (vii),
(viii) and (ix) of the definition of Borrowed Money Indebtedness set forth in
this Section 1.1) of Parent and its Subsidiaries (on a consolidated basis) as of
such date, determined in accordance with GAAP.
"Consolidated Total Interest Expense" means, with reference to any
period, the Interest Expense of the Parent and its Subsidiaries calculated on a
consolidated basis for such period.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with any Borrower, are treated as a single
employer under Section 414 of the Code or under Applicable Canadian Pension
Legislation.
"Corporation" means any corporation, limited liability company,
partnership, joint venture, joint stock association, business trust and other
business entity.
"Cover" or "Cover for Letter of Credit Liabilities or any Bankers'
Acceptance Liabilities" means payment to U.S. Administrative Agent, Canadian
Administrative Agent or Norwegian Administrative Agent, as the case may be,
immediately available funds, to be held by U.S. Administrative Agent, Canadian
Administrative Agent or Norwegian Administrative Agent, as the case may be, in a
collateral account maintained by U.S. Administrative Agent, Canadian
Administrative Agent or Norwegian Administrative Agent, as the case may be, at
its Principal Office and collaterally assigned to U.S. Administrative Agent,
Canadian Administrative Agent or Norwegian Administrative Agent, as the case may
be, as security for the applicable Obligations using documentation reasonably
satisfactory to U.S. Administrative Agent, Canadian Administrative Agent or
Norwegian Administrative Agent, as the case may be, in the amount required by
any applicable provision hereof. Such amount shall be retained by U.S.
Administrative Agent, Canadian Administrative Agent or Norwegian Administrative
Agent, as the case may be, in such collateral account until such time as the
applicable Letter of Credit shall have expired and the Reimbursement
Obligations, if any, with respect thereto shall have been fully satisfied or the
applicable Bankers' Acceptance shall have matured and the related Bankers'
Acceptance Liabilities shall have been fully satisfied; provided, however, that
at such time if a Default or Event of Default has occurred and is continuing,
U.S. Administrative Agent, Canadian Administrative Agent or Norwegian
Administrative Agent, as the case may be, shall not be required to release such
amount in such collateral account from the time of such collateral assignment
until such Default or Event of Default shall have been cured or waived.
"DBNA" means the Depository Bills and Notes Act (Canada).
"DESL" has the meaning assigned to it in the introductory paragraph of
this Agreement.
8
"Default" means an Event of Default or an event which with notice or
lapse of time or both would, unless cured or waived, become an Event of Default.
"Default Rate" means, on any day, a rate per annum equal to the lesser
of (i) the Ceiling Rate for that day or (ii) the applicable Base Rate, Canadian
Prime Rate or Norwegian Prime Rate, as the case may be, plus two percent (2%).
"Documentation Agents" means The Bank of New York and Comerica
Bank-Texas.
"Dollars, U.S. Dollars, US$ and $" means lawful money of the United
States of America.
"EBITDA" means without duplication, for any period the consolidated net
earnings (excluding any extraordinary gains or losses) plus, to the extent
deducted in calculating such consolidated net earnings, depreciation,
amortization, other non-cash items, Interest Expense, and federal, state and
provincial income tax expense and minus, to the extent added in calculating such
consolidated net earnings, any non-cash items, in each case, for Parent and its
Subsidiaries (on a consolidated basis).
"Effective Date" has the meaning assigned to it in the introductory
paragraph of this Agreement.
"Environmental Claim" means any third party (including Governmental
Authorities and employees) action, lawsuit, claim or proceeding (including
claims or proceedings at common law or under the Occupational Safety and Health
Act or similar laws relating to safety of employees) which seeks to impose
liability for (i) noise; (ii) pollution, contamination, protection or clean-up
of the air, surface water, ground water or land; (iii) solid, gaseous or liquid
waste generation, handling, treatment, storage, disposal or transportation; (iv)
exposure to Hazardous Substances; (v) the safety or health of employees or (vi)
the manufacture, processing, distribution in commerce, use, discharge or storage
of Hazardous Substances. An "Environmental Claim" includes, but is not limited
to, a common law action, as well as a proceeding to issue, modify or terminate
an Environmental Permit to the extent that such a proceeding attempts to redress
violations of an applicable permit, license, or regulation as alleged by any
Governmental Authority.
"Environmental Liabilities" includes all liabilities arising from any
Environmental Claim, Environmental Permit or Requirements of Environmental Law
under any theory of recovery, at law or in equity, and whether based on
negligence, strict liability or otherwise, including but not limited to
remedial, removal, response, abatement, investigative, monitoring, personal
injury and damage to Property or injuries to persons, and any other related
costs, expenses, losses, damages, penalties, fines, liabilities and obligations,
and all costs and expenses necessary to cause the issuance, reissuance or
renewal of any Environmental Permit including reasonable attorneys' fees and
court costs.
"Environmental Permit" means any permit, license, approval or other
authorization under any applicable Legal Requirement relating to pollution or
protection of health or the environment, including laws, regulations or other
requirements relating to emissions, discharges, releases or threatened releases
of pollutants, contaminants or hazardous substances or toxic materials or wastes
9
into ambient air, surface water, ground water or land, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and all rules, regulations, rulings and
interpretations adopted by the U.S. Department of Labor thereunder and, as the
context may require, Applicable Canadian Pension Legislation.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Rate" means for any Lender and for any day during an
Interest Period for a LIBOR Borrowing a rate per annum equal to the lesser of
(a) the sum of (1) LIBOR with respect to such Interest Period plus (2) the
applicable Margin Percentage from time to time in effect and (b) the Ceiling
Rate.
"Eurodollar Reserve Requirement" means, on any day, that percentage
(expressed as a decimal fraction and rounded, if necessary, to the next highest
one ten thousandth [.0001]) which is in effect on such day for determining all
reserve requirements (including, without limitation, basic, supplemental,
marginal and emergency reserves) applicable to "Eurocurrency liabilities," as
currently defined in Regulation D. Each determination of the Eurodollar Reserve
Requirement by any Administrative Agent shall be conclusive and binding, absent
manifest error, and may be computed using any reasonable averaging and
attribution method.
"Eurokrone Rate" means for any day during an Interest Period for a
NIBOR Borrowing a rate per annum equal to the lesser of (a) the sum of (1) NIBOR
with respect to such Interest Period plus (2) the applicable Margin Percentage
from time to time in effect and (b) the Ceiling Rate.
"Event of Default" has the meaning assigned to it in Section 9 hereof.
"Exchange Rate" means, on any day, (a) (i) with respect to Canadian
Dollars in relation to Dollars, the spot rate as quoted by the Bank of Canada as
its noon spot rate at which Dollars are offered on such day for Canadian
Dollars, and (ii) with respect to Dollars in relation to Canadian Dollars, the
spot rate as quoted by the Bank of Canada as its noon spot rate at which
Canadian Dollars are offered on such day for Dollars and (b) (i) with respect to
Dollars in relation to Norwegian Krone, the spot rate as quoted by the Central
Bank of Norway (Norges Bank) as its noon spot rate at which Norwegian Krone are
offered on such day for Dollars and (ii) with respect to Norwegian Krone in
relation to Dollars, the spot rate as quoted by the Central Bank of Norway
(Norges Bank) as its noon spot rate at which Dollars are offered on such day for
Norwegian Krone.
"Existing Canadian Letters of Credit" means the issued and undrawn
letters of credit existing on the date of this Agreement issued by The Bank of
Nova Scotia under the Existing Credit Facility on behalf of Canadian Borrowers
and listed on Exhibit O attached hereto.
"Existing Credit Facility" has the meaning set forth in Section 5.1(k).
10
"Existing Norwegian Letters of Credit" means the issued and undrawn
letters of credit issued by Den norske Bank ASA on behalf of Norwegian Borrower
existing on the date of this Agreement and listed on Exhibit O attached hereto.
"Existing U.S. Letters of Credit" means the issued and undrawn letters
of credit issued by The Chase Manhattan Bank (n/k/a JPMorgan Chase Bank) on
behalf of U.S. Borrower existing on the date of this Agreement and listed on
Exhibit O attached hereto.
"Extension Maturity Date" means the date, if any, to which the Maturity
Date or any subsequent Extension Maturity Date has been extended pursuant to
Section 2.13.
"Facility Fees" means the fees specified in Section 2.7.
"Federal Funds Rate" means, for any day, a fluctuating interest rate
per annum equal for such day 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, if such rate is not so published for any such day which is a
Business Day, the average of the quotations for such day on such transactions
received by U.S. Administrative Agent from three Federal funds brokers of
recognized standing selected by U.S. Administrative Agent in its sole and
absolute discretion.
"Foreign Commitment" means a Canadian Commitment or Norwegian
Commitment, or both.
"Foreign Subsidiaries" means Subsidiaries that are organized under the
laws of a jurisdiction other than the United States of America, any State of the
United States or any political subdivision thereof.
"Funding Loss" means, with respect to (a) any Borrower's payment of
principal of a LIBOR Borrowing or NIBOR Borrowing, on a day other than the last
day of the applicable Interest Period; (b) any Borrower's failure to borrow a
LIBOR Borrowing or NIBOR Borrowing, or to borrow funds by way of Bankers'
Acceptances on the date specified by such Borrower; (c) any Borrower's failure
to make any prepayment of the Loans (other than Base Rate Borrowings and
Canadian Prime Loans) on the date specified by such Borrower, or (d) any
cessation of a Eurodollar Rate or Eurokrone Rate, as the case may be, to apply
to the Loans or any part thereof pursuant to Section 3.3, in each case whether
voluntary or involuntary, any loss, expense, penalty, premium or liability
actually incurred by any Lender (including but not limited to any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain a Loan), but excluding
loss of anticipated profits.
"GAAP" means, as to a particular Person, such United States accounting
practice as, in the opinion of independent certified public accountants of
recognized national standing regularly retained by such Person, conforms at the
time to generally accepted accounting principles, consistently applied for all
periods after the Effective Date so as to present fairly the financial
condition, and results of operations and cash flows, of such Person. If any
change in any
11
accounting principle or practice is required by the Financial Accounting
Standards Board, all reports and financial statements required hereunder may be
prepared in accordance with such change so long as the applicable Person
provides to the Lenders such disclosures of the impact of such change as the
Lenders may reasonably require. No such change in any accounting principle or
practice shall, in itself, cause a Default or Event of Default hereunder (but
Borrowers, Administrative Agents and Lenders shall negotiate in good faith to
replace any financial covenants hereunder to the extent such financial covenants
are affected by such change in accounting principle or practice).
"Governmental Authority" means any governmental authority of the United
States of America, Canada, Norway, any State of the United States, any Province
of Canada, or of any other foreign jurisdiction and any political subdivision of
any of the foregoing, and any central bank, agency, department, commission,
board, bureau, court or other tribunal having or asserting jurisdiction over any
Administrative Agent, any Lender, any Obligor or their respective Property.
"Guaranties" means, collectively, (i) the Guaranty dated concurrently
herewith executed by Parent, as Guarantor, in favor of U.S. Administrative
Agent, for the benefit of U.S. Lenders, (ii) the Guaranty dated concurrently
herewith executed by Parent, as Guarantor, in favor of Canadian Administrative
Agent, for the benefit of Canadian Lenders, and (iii) the Guaranty dated
concurrently herewith executed by Parent, as Guarantor, in favor of Norwegian
Administrative Agent, for the benefit of Norwegian Lenders.
"Guarantor" means the Parent.
"Hazardous Substance" means petroleum products, and any hazardous or
toxic waste or substance defined or regulated as such from time to time by any
law, rule, regulation or order described in the definition of "Requirements of
Environmental Law".
"Increasing Lender" has the meaning set forth in Section 2.12.
"Index Debt" means senior, unsecured, long-term Borrowed Money
Indebtedness of the Parent that is not guaranteed by any other Person or subject
to any other credit enhancement.
"Information" has the meaning set forth in Section 11.18.
"Interest Coverage Ratio" means, as of any day, the ratio of (a)
Consolidated EBITDA for the 12 months ending on such day less Capital
Expenditures during such period to (b) Consolidated Total Interest Expense for
such period.
"Interest Expense" means for any period, interest expense, whether
expensed or capitalized, paid, accrued or scheduled to be paid or accrued during
such period, determined in accordance with GAAP, without duplication.
"Interest Options" means the Base Rate, each Eurodollar Rate, as to the
Canadian Dollar Notes only, the Canadian Prime Rate, and as to the Norwegian
Krone Notes only, NIBOR and "Interest Option" means any of them.
12
"Interest Payment Dates" means (a) for Base Rate Borrowings, for
Canadian Prime Loans and for Norwegian Prime Loans, September 30, 2002 and the
last day of each March, June, September and December thereafter prior to the
Maturity Date, and the Maturity Date; and (b) for LIBOR Borrowings and NIBOR
Borrowings, the end of the applicable Interest Period (and if such Interest
Period exceeds three months' duration, quarterly, commencing on the first
quarterly anniversary of the first day of such Interest Period) and the Maturity
Date.
"Interest Period" means, for each LIBOR Borrowing or NIBOR Borrowing,
as the case may be, a period commencing on the date such LIBOR Borrowing or
NIBOR Borrowing, as the case may be, began and ending on the numerically
corresponding day which is, subject to availability as set forth in Section
3.3(c)(iii), 1, 2, 3 or 6 months thereafter, as any Borrower shall elect in
accordance herewith; provided, (1) unless the Lenders shall otherwise consent,
no Interest Period with respect to a LIBOR Borrowing or NIBOR Borrowing, as the
case may be, shall commence on a date earlier than three (3) Business Days after
this Agreement shall have been fully executed; (2) any Interest Period with
respect to a LIBOR Borrowing or NIBOR Borrowing, as the case may be, which would
otherwise end on a day which is not a LIBOR Business Day or NIBOR Business Day,
as the case may be, shall be extended to the next succeeding LIBOR Business Day
or NIBOR Business Day, as the case may be, unless such LIBOR Business Day or
NIBOR Business Day, as the case may be, falls in another calendar month, in
which case such Interest Period shall end on the next preceding LIBOR Business
Day or NIBOR Business Day, as the case may be; (3) any Interest Period with
respect to a LIBOR Borrowing or NIBOR Borrowing, as the case may be, which
begins on the last LIBOR Business Day or NIBOR Business Day, as the case may be,
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last LIBOR Business Day or NIBOR Business Day, as the case may be, of the
appropriate calendar month; and (4) no Interest Period for a Loan shall ever
extend beyond the Maturity Date.
"Interest Rate Risk Agreement" means an interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or similar
arrangement entered into by U.S. Borrower for the purpose of reducing U.S.
Borrower's exposure to interest rate fluctuations and not for speculative
purposes, approved in writing by U.S. Administrative Agent (such approval not to
be unreasonably withheld), as it may from time to time be amended, modified,
restated or supplemented.
"Interest Rate Risk Indebtedness" means all monetary obligations of
U.S. Borrower provided for in any Interest Rate Risk Agreement.
"Investment" means, as to any Person the purchase or other acquisition
of any securities or indebtedness of, or the making of any loan, advance or
capital contribution to, or the incurring of any liability (other than trade
accounts payable arising in the ordinary course of business), contingently or
otherwise, in respect of the indebtedness of, any other Person.
"Issuer" means the applicable Issuing Bank (or, where applicable, each
Issuing Bank) of a Letter of Credit under this Agreement.
13
"Issuing Bank" means each of Xxxxx Fargo and up to two additional
Lenders acceptable to Xxxxx Fargo, Borrower and such Lender with respect to the
U.S. Letters of Credit, The Bank of Nova Scotia with respect to the Canadian
Letters of Credit and Den norske Bank ASA with respect to the Norwegian Letters
of Credit.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Legal Requirement" means any law, statute, ordinance, decree,
requirement, order, judgment, rule, or regulation (or interpretation of any of
the foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority, whether presently existing or arising in the future.
"Lender" and "Lenders" have the meaning assigned to them in the
introductory paragraph of this Agreement.
"Letter of Credit Exposure" means, at any time, the sum of (a) the
aggregate undrawn maximum face amount of each Letter of Credit at such time and
(b) the aggregate unpaid amount of all Reimbursement Obligations in respect of
Letters of Credit at such time.
"Letter of Credit Liabilities" means, at any time and in respect of any
Letter of Credit, the sum of (i) the amount available for drawings under such
Letter of Credit plus (ii) the aggregate unpaid amount of all Reimbursement
Obligations at the time due and payable in respect of previous drawings made
under such Letter of Credit. For the purpose of determining at any time the
amount described in clause (i), in the case of any Letter of Credit payable in a
currency other than Dollars or Canadian Dollars, such amount shall be converted
by the U.S. Administrative Agent to Dollars by any reasonable method, and such
converted amount shall be conclusive and binding, absent manifest error.
"Letters of Credit" means the U.S. Letters of Credit, the Canadian
Letters of Credit, and the Norwegian Letters of Credit.
"Leverage Ratio" means, as of any date of calculation, the ratio of
Consolidated Total Funded Debt outstanding on such date to Consolidated Total
Capitalization outstanding on such date.
"LIBOR" means, for each Interest Period for any LIBOR Borrowing, the
rate per annum (rounded upwards, if necessary, to the nearest 1/16th of 1%)
equal to the average of the offered quotations appearing on Telerate Page 3750
(or if such Telerate Page shall not be available, any successor or similar
service as may be selected by Administrative Agents and Borrowers) as of 11:00
a.m., Houston, Texas time (in respect of a LIBOR Borrowing relating to the U.S.
Loans) or 12:00 noon, Calgary, Alberta time (in respect of a LIBOR Borrowing
relating to the Canadian
14
Loans) (or, in either case, as soon thereafter as practicable) on the day two
LIBOR Business Days prior to the first day of such Interest Period for deposits
in Dollars having a term comparable to such Interest Period and in an amount
comparable to the principal amount of the LIBOR Borrowing to which such Interest
Period relates. If none of such Telerate Page 3750 nor any successor or similar
service is available, then "LIBOR" shall mean, with respect to any Interest
Period for any applicable LIBOR Borrowing, the rate of interest per annum,
rounded upwards, if necessary, to the nearest 1/16th of 1%, quoted by U.S.
Administrative Agent at or before 11:00 a.m., Houston, Texas time (in respect of
a LIBOR Borrowing relating to the U.S. Loans) or 12:00 noon, Calgary, Alberta
time (in respect of a LIBOR Borrowing relating to the Canadian Loans) (or, in
either case, as soon thereafter as practicable), on the date two LIBOR Business
Days before the first day of such Interest Period, to be the arithmetic average
of the prevailing rates per annum at the time of determination and in accordance
with the then existing practice in the applicable market, for the offering to
U.S. Administrative Agent or Canadian Administrative Agent, as the case may be,
by one or more prime banks selected by such Administrative Agent in its sole
discretion, in the London interbank market, of deposits in Dollars for delivery
on the first day of such Interest Period and having a maturity equal (or as
nearly equal as may be) to the length of such Interest Period and in an amount
equal (or as nearly equal as may be) to the LIBOR Borrowing to which such
Interest Period relates. Each determination by any Administrative Agent of LIBOR
shall be conclusive and binding, absent manifest error, and may be computed
using any reasonable averaging and attribution method.
"LIBOR Borrowing" means each portion of the principal balance of the
Loans at any time bearing interest at a Eurodollar Rate.
"LIBOR Business Day" means a Business Day on which transactions in
Dollar deposits between lenders may be carried on in the London interbank
market.
"Lien" means any mortgage, pledge, charge, encumbrance, security
interest, collateral assignment or other lien or restriction of any kind,
whether based on common law, constitutional provision, statute or contract, and
whether or not consensual.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Bankers' Acceptances, the Bankers' Acceptance Notices, the Guaranties, all
Applications, all instruments, certificates and agreements now or hereafter
executed or delivered by any Obligor to any Administrative Agent or any Lender
pursuant to any of the foregoing or in connection with the Obligations or any
commitment regarding the Obligations, and all amendments, modifications,
renewals, extensions, increases and rearrangements of, and substitutions for,
any of the foregoing.
"Loans" means the loans provided for by Section 2.1(a), (b) and (d) and
Section 2.2 hereof.
"Majority Lenders" means, at any time while the Commitments are
outstanding, two or more Lenders having greater than 50% of the aggregate amount
of Commitments, and at any other time, two or more Lenders having greater than
50% of the aggregate amount of Obligations outstanding.
15
"Mandatory U.S. Borrowing" means a U.S. Swing Line Borrowing comprised
of Base Rate Borrowings made to repay a U.S. Swing Line Borrowing which has not
been repaid to U.S. Swing Line Lender on or before the date when due.
"Margin Percentage" means, at any date with respect to any LIBOR
Borrowing, NIBOR Borrowing, Facility Fees, Utilization Fees or letter of credit
fees hereunder (except as otherwise provided below), the applicable per annum
percentage set forth at the appropriate intersection in the table shown below
based upon the ratings by Moody's and S&P, respectively, applicable on such date
to the Index Debt:
Facility LIBOR/NIBOR Utilization
Category Rating Fee Margin Fee
-------- ------ -------- ----------- -----------
-------------------------------------------------------------------------------------
5 = or >A-/A3 0.10% 0.40% 0.10%
-------------------------------------------------------------------------------------
4 BBB+/Baa1 0.125% 0.50% 0.125%
-------------------------------------------------------------------------------------
3 BBB/Baa2 0.15% 0.725% 0.125%
-------------------------------------------------------------------------------------
2 BBB-/Baa3 0.20% 0.925% 0.25%
-------------------------------------------------------------------------------------
1 < BBB-/Baa3 0.25% 1.25% 0.25%
-------------------------------------------------------------------------------------
For purposes of the foregoing, (a) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 1; (b) if
the ratings established or deemed to have been established by Moody's and S&P
for the Index Debt shall fall within different Categories, the Margin Percentage
shall be based on the higher of the two ratings unless one of the two ratings is
two or more Categories lower than the other, in which case the Margin Percentage
shall be determined by reference to the Category next above that of the lower of
the two ratings; and (c) if the ratings established or deemed to have been
established by Moody's and S&P for the Index Debt shall be changed (other than
as a result of a change in the rating system of Moody's or S&P), such change
shall be effective as of the date on which it is first announced or published by
the applicable rating agency or, in the absence of such announcement or
publication, on the effective date of such rating. Each change in the Margin
Percentage shall apply during the period commencing on the effective date of
such change and ending on the date immediately preceding the effective date of
the next such change. If the rating system of Moody's or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, each Borrower and the applicable Lenders shall negotiate in
good faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness
of any such amendment, the Margin Percentage shall be determined by reference to
the rating most recently in effect prior to such change or cessation. From the
Effective Date until the first such ratings change, if any, the Margin
Percentage shall be determined by reference to Category 4.
"Material Adverse Effect" means a material adverse effect on the
properties, business, operations, assets or condition (financial or otherwise)
of Parent and its Subsidiaries, taken as a
16
whole, or on the ability of the Obligors, taken as a whole, to perform their
obligations under the Loan Documents.
"Material Part" means, with respect to the Property of the Parent and
its Subsidiaries, Property that represents more than 10% of the consolidated
assets of the Parent and its Subsidiaries or Property that is responsible for
more than 10% of the consolidated net sales or of the consolidated net income of
Parent and its Subsidiaries, in each case, as would be shown in the consolidated
financial statements of Parent and its Subsidiaries as at the beginning of the
twelve month period ending with the month in which such determination is made
(or if financial statements have not been delivered hereunder for that month
which begins the twelve month period, then the financial statements delivered
hereunder for the quarter ending immediately prior to that month).
"Material Subsidiary" means (i) as of the date of this Agreement and
until the first quarterly Compliance Certificate is provided hereunder by the
Parent, each Subsidiary of Parent which owns assets the book value of which
comprises ten percent (10%) or more of the book value of all of the assets of
Parent and its Subsidiaries (on a consolidated basis) or has gross revenues for
the immediately preceding fiscal year which comprises ten percent (10%) or more
of the gross revenues of Parent and its Subsidiaries for such fiscal year (on a
consolidated basis) as shown on Schedule 6.8 hereto, and (ii) beginning with the
date the first quarterly Compliance Certificate is provided hereunder by the
Parent, each Subsidiary of Parent (other than a Foreign Subsidiary) which owns
assets the book value of which comprises ten percent (10%) or more of the book
value of all of the assets of Parent and its Subsidiaries (on a consolidated
basis) or has gross revenues for the immediately preceding fiscal year which
comprises ten percent (10%) or more of the gross revenues of Parent and its
Subsidiaries for such fiscal year (on a consolidated basis) as shown on the
Compliance Certificate.
"Maturity Date" means the later of (i) the Original Maturity Date or
(ii) the Extension Maturity Date.
"Maximum Canadian Available Amount" means US$20,000,000. In connection
with the application of any provision hereof using the term "Maximum Canadian
Available Amount", any amounts denominated in Canadian Dollars shall be
converted to Dollars using the then current Exchange Rate. The Maximum Canadian
Available Amount is subject to change pursuant to Section 2.5(c) and Section
2.12 hereof.
"Maximum Norwegian Amount" means US$20,000,000. In connection with the
application of any provision hereof using the term "Maximum Norwegian Available
Amount," any amounts denominated in Norwegian Krone shall be converted to
Dollars using the then current Exchange Rate. The Maximum Norwegian Available
Amount is subject to change pursuant to Section 2.5(c) and Section 2.12 hereto.
"Maximum U.S. Available Amount" means US$135,000,000. The Maximum U.S.
Available Amount is subject to change pursuant to Section 2.5(c) and Section
2.12 hereof.
17
"Multiple Lender" means any Lender which has both a U.S. Commitment and
Foreign Commitment or a Canadian Commitment and a Norwegian Commitment.
"NIBOR" means, on any day, an annual rate of interest to be determined
by reference to the Reuters screen picture NIBP at or about 12:00 noon Oslo
time, two business days prior to the first day of the relevant interest period,
rounded upwards if necessary to the next higher 1/16%.
"NIBOR Borrowing" means each portion of the principal balance of the
Loans at any time bearing interest at a Eurokrone Rate.
"NIBOR Business Day" means a Business Day on which transactions in
Norwegian Krone between lenders may be carried on in the Norwegian interbank
market.
"NOCL" has the meaning assigned to it in the introductory paragraph of
this Agreement.
"Non-Consenting Lenders" has the meaning set forth in Section 2.13.
"Norwegian Administrative Agent" has the meaning assigned to it in the
introductory paragraph of this Agreement.
"Norwegian Borrower" has the meaning assigned to it in the introductory
paragraph of this Agreement.
"Norwegian Commitment" means, as to any Norwegian Lender, the amount,
if any, set forth opposite such Norwegian Lender's name on the signature pages
hereof under the caption "Norwegian Commitment", or otherwise provided for in an
Assignment and Acceptance Agreement (as the same may be increased or reduced
from time to time pursuant to Section 2.5, 2.12, 11.6(b) or 11.16 hereof).
"Norwegian Krone" or "NOK" means lawful money of the Kingdom of Norway.
"Norwegian Krone Notes" means the Notes of Norwegian Borrower
evidencing the Norwegian Loans denominated in Norwegian Krone, in the form of
Exhibit L hereto.
"Norwegian Lender" means each lender signatory hereto with (i) prior to
the Termination Date, a Norwegian Commitment and (ii) on and after the
Termination Date, any outstanding Norwegian Obligations.
"Norwegian Letter of Credit" has the meaning assigned to such term in
Section 2.3 hereof.
"Norwegian Loan" means a Loan made pursuant to Section 2.1(d) hereof.
"Norwegian Notes" means the Notes of Norwegian Borrower evidencing the
Norwegian Loans denominated in Dollars, in the form of Exhibit E hereto.
"Norwegian Obligations" means, as at any date of determination thereof,
the sum of the following (determined without duplication): (i) the aggregate
principal amount of Norwegian
18
Loans outstanding hereunder on such date, plus (ii) the aggregate amount of
Letter of Credit Liabilities outstanding on such date relating to Norwegian
Letters of Credit.
"Norwegian Prime Loans" means Loans made pursuant to Section 2.1(d)
hereof which are denominated in Norwegian Krone.
"Norwegian Prime Rate" means, on any day, the prime rate of Den norske
Bank ASA in effect for that day at its offices in Oslo, Norway. The Norwegian
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate or a favored rate, and Norwegian Administrative Agent disclaims any
statement, representation or warranty to the contrary. Norwegian Administrative
Agent may make commercial loans or other loans at rates of interest at, above or
below the Norwegian Prime Rate.
"Notes" has the meaning assigned to such term in Section 2.9 hereof.
"Obligations" means, as at any date of determination thereof, the sum
(without duplication) of the following: (i) the aggregate principal amount of
Loans outstanding hereunder on such date, plus (ii) the aggregate amount of the
outstanding Letter of Credit Liabilities on such date, plus (iii) the aggregate
amount of outstanding Bankers' Acceptance Liabilities on such date, plus (iv)
all other outstanding liabilities, obligations and indebtedness of any Obligor
under any Loan Document on such date.
"Obligors" means each Borrower and Parent.
"Organizational Documents" means, with respect to a United States
corporation, the certificate of incorporation, articles of incorporation and
bylaws of such corporation; with respect to a partnership, the partnership
agreement establishing such partnership; with respect to a trust, the instrument
establishing such trust and with respect to any other Person, the agreements or
instruments pursuant to which such Person was formed and by which such Person is
governed; in each case including any and all modifications thereof as of the
date of the Loan Document referring to such Organizational Document and any and
all future modifications thereof.
"Original Maturity Date" means July 30, 2005.
"Parent" means National-Oilwell, Inc., a Delaware corporation.
"Payor" has the meaning set forth in Section 4.4.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA and any pension commission
or similar body constituted under any Applicable Canadian Pension Legislation.
"Permitted Business" has the meaning set forth in Section 8.13.
"Permitted Dividends" means (i) dividends or distributions by a
Subsidiary of a Borrower to such Borrower or redemption by a Subsidiary of any
of its stock held by any Borrower and (ii) so
19
long as no Event of Default shall have occurred and be continuing (or would
result therefrom), any other dividends or distributions.
"Permitted Investments" means:(a) readily marketable securities issued
or fully guaranteed by the full faith and credit of the United States of
America, of Canada or of Norway with maturities of not more than one year; (b)
commercial paper rated "Prime 2" or better by Xxxxx'x Investors Service, Inc. or
"A-2" or better by Standard and Poor's Ratings Services or the equivalent
thereof by Dominion Bond Rating Service Limited with maturities of not more than
180 days; (c) certificates of deposit or repurchase obligations issued by (i)
any Lender or (ii) any U.S., Canadian or Norwegian domestic bank having capital
and surplus (or net worth in the case of a non-bank Lender) of at least
US$100,000,000 or by any other financial institution acceptable to the U.S.
Administrative Agent, all of the foregoing not having a maturity of more than
one year from the date of issuance thereof; (d) money market funds the assets of
which consist primarily of investments included in clauses (a), (b) and (c)
above; (e) loans made to Parent or U.S. Borrower and loans made by either
Canadian Borrower to the other Canadian Borrower; (f) loans not exceeding
US$20,000,000 (or its equivalent in the case of loans not in Dollars) in the
aggregate at any one time outstanding to either Canadian Borrower (exclusive of
loans permitted under clause (e) above); (g) loans not exceeding US$20,000,000
(or its equivalent in the case of loans not in Dollars) in the aggregate at any
one time outstanding to Norwegian Borrower (exclusive of loans permitted under
clause (e) above); (h) loans (exclusive of loans permitted under clause (e)
above or clause (i) below) not exceeding US$20,000,000 in the aggregate at any
one time outstanding to any Material Subsidiary, (i) loans (exclusive of loans
permitted under clauses (e), (f), (g) or (h) above) made to Subsidiaries so long
as the aggregate unpaid principal balance of all such loans does not exceed
US$20,000,000 at any time outstanding (the loans described in clauses (e), (f),
(g), (h) and (i) above shall be subject to Section 8.2 hereof) or (j)
Investments in any Subsidiary of the Parent .
"Permitted Liens" means each of the following: (a) artisans' or
mechanics' Liens arising in the ordinary course of business, and Liens for
taxes, but only to the extent that payment thereof shall not at the time be due
or if due, the payment thereof is being diligently contested in good faith and
adequate reserves computed in accordance with GAAP have been set aside therefor;
(b) Liens in effect on the Effective Date and disclosed to the Lenders in the
financial statements delivered on or prior to the Effective Date pursuant to
Section 6.2 hereof or in a schedule hereto, provided that neither the Borrowed
Money Indebtedness secured thereby nor the Property covered thereby shall
increase after the Effective Date without the prior written consent of the
Majority Lenders; (c) normal encumbrances and restrictions on title which do not
secure Borrowed Money Indebtedness and which do not have a material adverse
effect on the value or utility of the applicable Property; (d) Liens under the
Loan Documents including, without limitation, Liens securing Interest Rate Risk
Indebtedness owed to one or more of the U.S. Lenders (but not to any Person
which is not, at such time, a U.S. Lender); (e) Liens incurred or deposits made
in the ordinary course of business (1) in connection with workmen's
compensation, unemployment insurance, social security and other like laws, or
(2) to secure insurance in the ordinary course of business, the performance of
bids, tenders, contracts, leases, licenses, statutory obligations, surety,
appeal and performance bonds and other similar obligations incurred in the
ordinary course of business, not, in any of the cases specified in this clause
(2), incurred in connection with the borrowing of money, the obtaining of
advances or the payment of the deferred purchase price of Property; (f) subject
to Section 9.1(i), attachments, judgments and other similar Liens arising in
connection with court proceedings,
20
provided that the execution and enforcement of such Liens are effectively stayed
and the claims secured thereby are being actively contested in good faith with
adequate reserves made therefor in accordance with GAAP; (g) Liens imposed by
law, such as, but not limited to, carriers', warehousemen's, mechanics',
materialmen's and vendors' Liens, incurred in good faith in the ordinary course
of business and securing obligations which are not yet due or which are being
contested in good faith by appropriate proceedings if adequate reserves with
respect thereto are maintained in accordance with GAAP; (h) zoning restrictions,
easements, licenses, reservations, provisions, covenants, conditions, waivers,
and restrictions on the use of Property, and which do not in any case singly or
in the aggregate materially impair the present use or value of the Property
subject to any such restriction or materially interfere with the ordinary
conduct of the business of any Obligor; (i) Liens securing Borrowed Money
Indebtedness to the extent permitted under Section 8.1 hereof and any Liens on
Property acquired (or Property owned by any Person acquired) in Acquisitions
permitted under Section 8.4 hereof; (j) capital leases and sale/leaseback
transactions permitted under the other provisions of this Agreement, and (k)
extensions, renewals and replacements of Liens referred to in clauses (a)
through (j) of this definition; provided that any such extension, renewal or
replacement Lien shall be limited to the Property or assets covered by the Lien
extended, renewed or replaced and that the Borrowed Money Indebtedness secured
by any such extension, renewal or replacement Lien shall be in an amount not
greater than the amount of the Borrowed Money Indebtedness secured by the Lien
extended, renewed or replaced.
"Person" means any individual, Corporation, trust, unincorporated
organization, Governmental Authority or any other form of entity.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code or any Applicable Canadian Pension Legislation and is either (a) maintained
by any Borrower or any member of the Controlled Group for employees of any
Borrower or any member of the Controlled Group or (b) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which any Borrower or any member of the
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions.
"Present Maturity Date" has the meaning set forth in Section 2.13.
"Prime Rate" means, on any day, (a) at any time the rate of interest
most recently announced by Xxxxx Fargo Bank, N.A. at its principal office in San
Francisco, California as its prime rate, whether or not the Borrowers have
notice thereof, with the understanding that the Prime Rate is one of Xxxxx Fargo
Bank, N.A.'s base rates and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such internal
publication or publications as Xxxxx Fargo Bank, N.A. may designate, which
change in the Prime Rate shall be effective on the day the change is announced
within Xxxxx Fargo Bank, N.A. and (b) as to Loans denominated in Dollars made to
a Canadian Borrower, the base rate for that day for Loans denominated in Dollars
quoted by The Bank of Nova Scotia. The Prime Rate is, in each case, a reference
rate and does not necessarily represent the lowest or best rate or a favored
rate, and Xxxxx Fargo Bank, N.A., The Bank of Nova Scotia, each Administrative
Agent and each Lender disclaims any statement, representation or warranty to the
21
contrary. Xxxxx Fargo Bank, N.A., The Bank of Nova Scotia, any Administrative
Agent or any Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Principal Office" means (a) as to Obligations of U.S. Borrower, the
principal office of U.S. Administrative Agent, presently located at 0000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000, (b) as to Obligations of
Canadian Borrowers, the principal office of Canadian Administrative Agent,
presently located at 000 Xxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0,
Xxxxxx and (c) as to Obligations of Norwegian Borrower, the principal office of
Norwegian Administrative Agent, presently located at 000 Xxxx Xxxxxx, Xxx Xxxx
Xxxx, Xxx Xxxx 00000.
"Proper Form" means in form and substance reasonably satisfactory to
U.S. Administrative Agent, Canadian Administrative Agent and Norwegian
Administrative Agent, as applicable.
"Property" means any interest in any kind of property or assets,
whether real, personal or mixed, tangible or intangible.
"Quarterly Dates" means the last day of each March, June, September and
December, provided that if any such date is not a Business Day, then the
relevant Quarterly Date shall be the next succeeding Business Day.
"Rate Designation Date" means that Business Day which is (a) in the
case of Base Rate Borrowings by the U.S. Borrower, 11:00 a.m., Houston, Texas
time, and, in the case of Base Rate Borrowings by a Canadian Borrower, 12:00
noon, Calgary, Alberta time, in each case on the date of such borrowing and (b)
in the case of LIBOR Borrowings by the U.S. Borrower, 11:00 a.m., Houston, Texas
time, and, in the case of LIBOR Borrowings by a Canadian Borrower, 12:00 noon,
Calgary, Alberta time, in each case, on the date three LIBOR Business Days
preceding the first day of any proposed Interest Period, and (c) in the case of
NIBOR Borrowings by Norwegian Borrower 12:00 noon, Oslo, Norway time, in each
case on the date four NIBOR Business Days preceding the first day of any
proposed Interest Period.
"Rate Designation Notice" means a written notice substantially in the
form of Exhibit B.
"Refunding Bankers' Acceptance" has the meaning specified in Section
2.4.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System from time to time in effect and includes any successor or
other regulation relating to reserve requirements applicable to member banks of
the Federal Reserve System.
"Regulatory Change" means with respect to any Lender, any change on or
after the date of this Agreement in any Legal Requirement (including, without
limitation, Regulation D) or the adoption or making on or after such date of any
interpretation, directive or request applying to a class of lenders including
such Lender under any Legal Requirements (whether or not having the force of
law) by any Governmental Authority.
"Reimbursement Obligations" means, as at any date, (i) the obligations
of any Borrower then outstanding in respect of Letters of Credit under this
Agreement, to reimburse the applicable
22
Issuers for the amount paid by such Issuers in respect of any drawing under such
Letters of Credit and (ii) the obligations of Canadian Borrowers then
outstanding in respect of any Bankers' Acceptance paid by any Canadian Lender on
maturity thereof. Except for Canadian Letters of Credit denominated in Canadian
Dollars or Norwegian Letters of Credit denominated in Norwegian Krone,
Reimbursement Obligations in respect of any Letter of Credit shall at all times
be payable in Dollars notwithstanding any such Letter of Credit being payable in
a currency other than Dollars.
"Request for Extension of Credit" means a request for extension of
credit duly executed by the chief executive officer, chief financial officer or
treasurer of U.S. Borrower, a Canadian Borrower or Norwegian Borrower, as the
case may be, or any other Person duly authorized by one of such officers,
appropriately completed and substantially in the form of Exhibit A-1 (U.S.
Borrower), Exhibit A-2 (Canadian Borrowers) or Exhibit A-3 (Norwegian Borrower)
attached hereto, as the case may be.
"Requirements of Environmental Law" means all requirements imposed by
any law (including for example and without limitation The Resource Conservation
and Recovery Act and The Comprehensive Environmental Response, Compensation, and
Liability Act), rule, regulation, or order of any federal, state or local
executive, legislative, judicial, regulatory or administrative agency, board or
authority in effect at the applicable time which relate to (i) noise; (ii)
pollution, contamination, protection or clean-up of the air, surface water,
ground water or land; (iii) solid, gaseous or liquid waste generation, handling,
treatment, storage, disposal or transportation; (iv) exposure to Hazardous
Substances; (v) the safety or health of employees or (vi) the manufacture,
processing, distribution in commerce, use, discharge or storage of Hazardous
Substances.
"Reset Date" has the meaning specified in Section 2.11(a).
"Responsible Officer" means the Chief Executive Officer, the President,
the Chief Financial Officer, any Vice President, any Treasurer, any Assistant
Treasurer, any Secretary, any Assistant Secretary or Manager of any Person.
"Revolving Commitment" means, as to any Lender, the sum of the U.S.
Commitment of such Lender, Canadian Commitment of such Lender and the Norwegian
Commitment of such Lender.
"Secretary's Certificate" means a certificate, in Proper Form, of the
Secretary or an Assistant Secretary of a corporation as to (a) the resolutions
of the Board of Directors of such corporation authorizing the execution,
delivery and performance of the documents to be executed by such corporation;
(b) the incumbency and signature of the officer of such corporation executing
such documents on behalf of such corporation, and (c) the Organizational
Documents of such corporation.
"Standby Letter of Credit" means a standby letter of credit as that
term is commonly referred to within the banking industry.
"Stated Rate" means for any Lender the effective weighted per annum
rate of interest applicable to the Obligations; provided, that if on any day
such rate shall exceed the Ceiling Rate
23
for such Lender for that day, the Stated Rate for such Lender shall be fixed at
the Ceiling Rate on that day and on each day thereafter until the total amount
of interest accrued at the Stated Rate for such Lender on the unpaid principal
balances of such Lender's Notes and such Lender's other Obligations plus the
Additional Interest equals the total amount of interest which would have accrued
if there had been no Ceiling Rate. If the Obligations mature (or are prepaid)
before such equality is achieved, then, in addition to the unpaid principal and
accrued interest then owing pursuant to the other provisions of the Loan
Documents, the applicable Borrower promises to pay on demand to the order of the
holder of the applicable Obligations interest in an amount equal to the excess
(if any) of (a) the lesser of (i) the total interest which would have accrued on
such Obligations if the Stated Rate had been defined as equal to the Ceiling
Rate from time to time in effect and (ii) the total interest which would have
accrued on such Obligations if the Stated Rate were not so prohibited from
exceeding the Ceiling Rate, over (b) the total interest actually accrued on such
Obligations to such maturity (or prepayment) date. Without notice to any
Borrower or any other Person, the Stated Rate shall automatically fluctuate
upward and downward in accordance with the provisions of this definition.
"Subordinated Indebtedness" means all Borrowed Money Indebtedness of a
Person which has been subordinated on terms and conditions satisfactory to the
Majority Lenders, in their sole discretion, to all Borrowed Money Indebtedness
of such Person to Lenders, whether now existing or hereafter incurred. Borrowed
Money Indebtedness shall not be considered as "Subordinated Indebtedness" unless
and until Administrative Agents shall have received copies of the documentation
evidencing or relating to such Borrowed Money Indebtedness together with a
subordination agreement, in Proper Form, duly executed by the holder or holders
of such Borrowed Money Indebtedness and evidencing the terms and conditions of
subordination required by the Majority Lenders.
"Subsidiary" means, as to a particular parent Corporation, any
Corporation of which more than 50% of the indicia of equity rights (whether
outstanding capital stock, partnership or member interests or otherwise) is at
the time directly or indirectly owned by, such parent Corporation.
"Taxes" has the meaning ascribed to it in Section 4.1(d).
"Termination Date" means the earliest of (a) the Maturity Date (or
Extension Maturity Date, as the case may be), (b) the date specified by the U.S.
Administrative Agent in accordance with Section 9.1 hereof or (c) such other
date on which the aggregate commitments terminate as provided herein.
"Total Canadian Exposure" means, at any time and without duplication,
the sum of the aggregate principal amounts of the then outstanding Canadian
Loans, then outstanding Bankers' Acceptance Liabilities and then outstanding
Letter of Credit Liabilities in respect of Canadian Letters of Credit, in each
case expressed in Dollars using, where applicable, the then current Exchange
Rate.
"Total Norwegian Exposure" means, at any time and without duplication,
the sum of the aggregate principal amounts of the then outstanding Norwegian
Loans, and then outstanding Letter
24
of Credit Liabilities in respect of Norwegian Letters of Credit, in each case
expressed in Dollars using, where applicable, the then current Exchange Rate.
"Total Outstandings" means the aggregate outstanding amount of all
Obligations, excluding those Obligations referred to in clause (iv) of the
definition herein of Obligations.
"Tranche" means, as applicable, U.S. Borrowings, Canadian Borrowings or
Norwegian Borrowings.
"Unfunded Liabilities" means, with respect to any Plan, at any time,
the amount (if any) by which (a) the present value of all benefits under such
Plan exceeds (b) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent actuarial valuation report
for such Plan, but only to the extent that such excess represents a potential
liability of any member of the Controlled Group to the PBGC or a Plan under
Title IV of ERISA or under Applicable Canadian Pension Legislation. With respect
to multi-employer Plans, the term "Unfunded Liabilities" shall also include
contingent liability for withdrawal liability under Section 4201 of ERISA or
under Applicable Canadian Pension Legislation to all multi-employer Plans to
which any Borrower or any member of a Controlled Group for employees of any
Borrower contributes in the event of complete withdrawal from such plans.
"U.S. Administrative Agent" has the meaning assigned to it in the
introductory paragraph of this Agreement.
"U.S. Borrower" has the meaning assigned to it in the introductory
paragraph of this Agreement.
"U.S. Commitment" means, as to any U.S. Lender, the amount, if any, set
forth opposite such U.S. Lender's name on the signature pages hereof under the
caption "U.S. Commitment", or otherwise provided for in an Assignment and
Acceptance Agreement (as the same may be increased or reduced from time to time
pursuant to Section 2.5(c), 2.12, 11.6(b) or 11.16 hereof).
"U.S. Lender" means each lender signatory hereto with (i) prior to the
Termination Date, a U.S. Commitment and (ii) on and after the Termination Date,
any outstanding U.S. Obligations.
"U.S. Letter of Credit" has the meaning assigned to such term in
Section 2.3 hereof.
"U.S. Loan" means a Loan made pursuant to Section 2.1(a) or 2.2 hereof.
"U.S. Notes" means the Notes of U.S. Borrower evidencing the U.S.
Loans made pursuant to Section 2.1(a) hereof, in the form of Exhibit D hereto.
"U.S. Obligations" means, as at any date of determination thereof, the
sum of the following (determined without duplication): (i) the aggregate
principal amount of U.S. Loans outstanding hereunder on such date plus (ii) the
aggregate amount of the Letter of Credit Liabilities outstanding on such date
relating to U.S. Letters of Credit.
"U.S. Swing Line Borrowing" has the meaning set forth in Section 2.2.
25
"U.S. Swing Line Lender" means the U.S. Administrative Agent.
"U.S. Swing Line Loan" means a Loan made pursuant to Section 2.2.
"U.S. Swing Line Note" means a promissory note of the U.S. Borrower
payable to the order of the U.S. Swing Line Lender in substantially the form of
the attached Exhibit F, evidencing the Borrowed Money Indebtedness of the U.S.
Borrower to the U.S. Swing Line Lender from U.S. Swing Line Borrowings owing to
the U.S. Swing Line Lender.
"Utilization Fee" means the fees specified in Section 2.6.
"Xxxxx Fargo" has the meaning assigned to it in the introductory
paragraph of this Agreement.
MISCELLANEOUS. The words "hereof," "herein," and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not any particular provision of this Agreement. The term "annualized"
as used herein shall mean the multiplication of the applicable amount for any
given period by a fraction, the numerator of which is 365 and the denominator of
which is the number of days elapsed in such period.
COMPUTATION OF TIME PERIODS. In this Agreement in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to but
excluding".
ACCOUNTING TERMS; CHANGES IN GAAP.
All accounting terms not specifically defined in this Agreement shall be
construed in accordance with GAAP applied on a consistent basis with those
applied in the preparation of the Annual Financial Statements.
Unless otherwise indicated, all financial statements of the Parent, all
calculations for compliance with covenants in this Agreement, and all
calculations of any amounts to be calculated under the definitions in this
Agreement shall be based upon the Consolidated accounts of the Parent and its
Subsidiaries in accordance with GAAP.
REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly provided herein,
(a) references to Organizational Documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Laws shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Laws.
COMMITMENTS; LOANS; BA'S AND LETTERS OF CREDIT
LOANS AND BA'S. Each Lender severally agrees, subject to all of the terms and
conditions of this Agreement (including, without limitation, Sections 5.1 and
5.2 hereof), to make Loans
26
and, in the case of Canadian Lenders, to accept and purchase Bankers'
Acceptances, as follows:
U.S. LOANS. From time to time on or after the Effective Date and during the
Availability Period, each U.S. Lender shall make loans under this Section 2.1(a)
to U.S. Borrower in an aggregate principal amount at any one time outstanding
(including its Commitment Percentage of all U.S. Swing Line Loans and all
Letter of Credit Liabilities relating to U.S. Letters of Credit at such time)
up to but not exceeding such U.S. Lender's Commitment Percentage of the Maximum
U.S. Available Amount. Notwithstanding anything herein to the contrary, in no
event shall any U.S. Lender be obligated to make any loan or purchase any
participation in a Letter of Credit to the extent that the making of such loan
and/or purchase of such participation in a Letter of Credit, as applicable,
would cause such Lender's U.S. Loan and Letter of Credit Liabilities relating to
U.S. Letters of Credit to exceed its U.S. Commitment.
Subject to the conditions in this Agreement, any such U.S. Loan repaid
prior to the Termination Date may be reborrowed pursuant to the terms of this
Agreement; provided, that any and all such U.S. Loans shall be due and payable
in full at the end of the Availability Period. Loans made under this Section
2.1(a) shall be made and denominated in Dollars. The aggregate of all U.S. Loans
to be made by the U.S. Lenders in connection with a particular borrowing shall
be equal to the lesser of (i) the unutilized portion of the U.S. Commitments or
(ii) (x) for a Base Rate Borrowing at least US$500,000 or any integral multiple
of US$100,000 in excess thereof, or (y) for a LIBOR Borrowing, at least
US$5,000,000 or any integral multiple of US$1,000,000 in excess thereof.
27
CANADIAN LOANS. From time to time on or after the Effective Date and during the
Availability Period, each Canadian Lender shall make loans under this Section
2.1(b) to either Canadian Borrower in an aggregate (for both Canadian Borrowers
together) principal amount at any one time outstanding (including such Canadian
Lender's Commitment Percentage of all Bankers' Acceptance Liabilities and all
Letter of Credit Liabilities relating to Canadian Letters of Credit at such
time) up to but not exceeding such Canadian Lender's Commitment Percentage of
the Maximum Canadian Available Amount. Subject to the conditions in this
Agreement, any such Canadian Loan repaid prior to the Termination Date may be
reborrowed pursuant to the terms of this Agreement; provided, that any and all
such Canadian Loans shall be due and payable in full at the end of the
Availability Period. Loans made under this Section 2.1(b) may, at the option of
either Canadian Borrower, be made and denominated either in Dollars or in
Canadian Dollars (but all Loans to be made under a particular borrowing must be
made and denominated in the same currency). The aggregate of all Canadian Loans
to be made by the Canadian Lenders in connection with a particular borrowing
shall be equal to the lesser of (i) the unutilized portion of the Canadian
Commitments or (ii) US$1,000,000 or any integral multiple of US$100,000 in
excess thereof (if the Loans are denominated in Dollars) or C$1,000,000 or any
integral multiple of C$100,000 in excess thereof (if the Loans are denominated
in Canadian Dollars).
BANKERS' ACCEPTANCES. From time to time on or after the Effective Date and
during the Availability Period, each Canadian Lender shall accept and purchase
Bankers' Acceptances drawn on it under Section 2.4 hereof by either Canadian
Borrower in an aggregate (for both Canadian Borrowers together) principal amount
at any one time outstanding (including such Canadian Lender's Commitment
Percentage of all Canadian Loans outstanding at such time and all Letter of
Credit Liabilities relating to Canadian Letters of Credit at such time) up to
but not exceeding such Canadian Lender's Commitment Percentage of the Maximum
Canadian Available Amount. No Bankers' Acceptance may be made or accepted on or
after the Termination Date and all outstanding Bankers' Acceptances shall mature
no later than the end of the Availability Period. Loans made by way of Bankers'
Acceptances shall be made and denominated in Canadian Dollars.
NORWEGIAN LOANS. From time to time on or after the Effective Date and during the
Availability Period, each Norwegian Lender shall make loans under this Section
2.1(d) to Norwegian Borrower in an aggregate principal amount at any one time
outstanding (including such Norwegian Lender's Commitment Percentage of all
Letter of Credit Liabilities relating to Norwegian Letters of Credit at such
time) up to but not exceeding such Norwegian Lender's Commitment Percentage of
the Maximum Norwegian Available Amount. Subject to the conditions in this
Agreement, any such Norwegian Loan repaid prior to the Termination Date may be
reborrowed pursuant to the terms of this Agreement; provided, that any and all
such Norwegian Loans shall be due and payable in full at the end of the
Availability Period. Loans made under this Section 2.1(d) may, at the option of
Norwegian Borrower, be made and denominated either in Dollars or in Norwegian
Krone (but all Loans to be made under a particular borrowing must be made and
denominated in the same currency). The aggregate of all Norwegian Loans to be
made by the Norwegian Lenders in connection with a particular borrowing shall be
equal to the lesser of (i) the unutilized portion of the Norwegian Commitments
or (ii) or US$1,000,000 or any integral
28
multiple of US$100,000 in excess thereof (if the Loans are denominated in
Dollars) or NOK10,000,000 or any integral multiple of NOK1,000,000 in excess
thereof.
NON-APPLICABILITY. Borrowers, Administrative Agents and the Lenders agree that
Chapter 346 of the Texas Finance Code, as amended shall not apply to this
Agreement, the Notes, the Loan Documents or any other Obligation.
U.S. SWING LINE BORROWINGS. On the terms and conditions set forth in this
Agreement, U.S. Swing Line Lender may, in its sole discretion from time-to-time
on any Business Day during the period from the date of this Agreement until the
Maturity Date, make advances ("U.S. Swing Line Borrowings") under the U.S. Swing
Line Note to the U.S. Borrower in an aggregate principal amount not to exceed
US$10,000,000 outstanding at any time, which shall reduce proportionally the
amount available under the U.S. Commitment of each U.S. Lender; provided that
the aggregate principal amount of outstanding U.S. Loan, U.S. Swing Line
Borrowings, and U.S. Letter of Credit Exposure relating to the U.S. Commitment
may not exceed the aggregate U.S. Commitments at such time; and provided further
than no U.S. Swing Line Borrowing shall be made by U.S. Swing Line Lender if the
statements set forth in Section 5.2 hereof are not true on the date of the
making of such U.S. Swing Line Borrowing, it being agreed by the U.S. Borrower
that the giving of the applicable notice of borrowing and the acceptance by the
U.S. Borrower of the proceeds of such U.S. Swing Line Borrowing shall constitute
a representation and warranty by the U.S. Borrower that on the date of such U.S.
Swing Line Borrowing such statements are true. Subject to the other provisions
hereof, the U.S. Borrower may from time-to-time borrow, prepay (in whole or in
part) and reborrow U.S. Swing Line Borrowings.
Except as provided in the following clause (ii) below, each request for a U.S.
Swing Line Borrowing shall be made pursuant to telephone notice to U.S. Swing
Line Lender given no later than 12:00 noon (Houston, Texas time) on the date of
the proposed U.S. Swing Line Borrowing, promptly confirmed by a completed and
executed notice of borrowing telecopied to the U.S. Swing Line Lender. U.S.
Swing Line Lender will promptly (but in any event prior to 3:00 p.m. (Houston,
Texas time) on the date of such proposed U.S. Swing Line Borrowing make the U.S.
Swing Line Borrowing available to the U.S. Borrower at the U.S. Borrowers'
account with the U.S. Administrative Agent or such other accounts as may be
designated by the U.S. Borrower.
U.S. Borrower and the U.S. Swing Line Lender agree that in the event any U.S.
Swing Line Borrowing is not repaid on the date due to U.S. Swing Line Lender,
each U.S. Lender shall pay to the U.S. Administrative Agent its pro rata share
of such U.S. Swing Line Borrowing and such payment shall be deemed to be a Base
Rate Borrowing made pursuant to such U.S. Commitment, whether made before or
after termination of the U.S. Commitments, acceleration of the U.S. Borrowings,
or otherwise, and whether or not the conditions precedent in Article V have been
satisfied. U.S. Administrative Agent shall give each U.S. Lender notice of such
Mandatory U.S. Borrowing by 12:00 noon (Houston, Texas time) on the date the
Mandatory U.S. Borrowing is to be made. Each U.S. Lender, to the extent of such
U.S. Lender's Commitment Percentage of the Maximum U.S. Available Amount, shall
make its Mandatory U.S. Borrowing available to the U.S. Administrative Agent
for the
29
account of U.S. Swing Line Lender in immediately available funds by 2:00 p.m.
(Houston, Texas time) on the date requested, and the U.S. Borrower hereby
irrevocably instructs U.S. Swing Line Lender to apply the proceeds of such
Mandatory U.S. Borrowing to the payment of the outstanding U.S. Swing Line
Borrowings.
Each U.S. Swing Line Lender shall be paid in full by the U.S. Borrower no later
than 10 days after such U.S. Swing Line Borrowing is made, and if such U.S.
Swing Line Borrowing is not paid within such time, then such U.S. Swing Line
Borrowing shall be paid by the funding in accordance with Section 2.2(b); and
Each U.S. Swing Line Borrowing is a Base Rate Borrowing and shall be in a
minimum amount equal to US$100,000 unless the U.S. Borrower elects to use Xxxxx
Fargo's credit sweep product, in which event there shall be no minimum amount.
LETTERS OF CREDIT.
LETTERS OF CREDIT. Subject to the terms and conditions of this Agreement, and on
the condition that aggregate Letter of Credit Liabilities relating to U.S.
Letters of Credit shall never exceed US$50,000,000, that aggregate Letter of
Credit Liabilities relating to Canadian Letters of Credit shall not exceed, at
the time of issuance, US$15,000,000, and that aggregate Letter of Credit
Liabilities relating to Norwegian Letters of Credit shall not exceed, at the
time of issuance, US$10,000,000, and the sum of the aggregate Letter of Credit
Liabilities relating to the U.S. Letters of Credit, Canadian Letters of Credit
and Norwegian Letters of Credit shall not exceed, at the time of issuance,
US$50,000,000, (i) U.S. Borrower shall have the right, in addition to U.S. Loans
provided for in Section 2.1(a) hereof, to utilize the U.S. Commitments from time
to time during the Availability Period by obtaining the issuance of letters of
credit for the account of U.S. Borrower if U.S. Borrower shall so request in the
notice referred to in Section 2.3(b)(i) hereof (such letters of credit as any of
them may be amended, supplemented, extended or confirmed from time to time,
being herein collectively called the "U.S. Letters of Credit"); either Canadian
Borrower shall have the right, in addition to Canadian Loans provided for in
Section 2.1(b) hereof and Bankers' Acceptances provided for in Section 2.1(c)
hereof, to utilize the Canadian Commitments from time to time during the
Availability Period by obtaining the issuance of letters of credit for the
account of such Canadian Borrower if such Canadian Borrower shall so request in
the notice referred to in Section 2.3(b)(i) hereof (such letters of credit as
any of them may be amended, supplemented, extended or confirmed from time to
time, being herein collectively called the "Canadian Letters of Credit"); and
Norwegian Borrower shall have the right, in addition to Norwegian Loans provided
for in Section 2.1(d) hereof, to utilize the Norwegian Commitments from time to
time during the Availability Period by obtaining the issuance of letters of
credit for the account of Norwegian Borrower if Norwegian Borrower shall so
request in the notice referred to in Section 2.3(b)(i) hereof (such letters of
credit as any of them may be amended, supplemented, extended or confirmed from
time to time, being herein collectively called the "Norwegian Letters of
Credit") and (ii) Xxxxx Fargo and an applicable Issuing Bank agrees to issue
U.S. Letters of Credit, The Bank of Nova Scotia agrees to issue Canadian Letters
of Credit and Den norske Bank, ASA, agrees to issue Norwegian Letters of Credit.
The Letters of Credit will, at the request of the applicable Borrower, be issued
in
30
currencies other than those expressly provided for in this Agreement so long as
the applicable Administrative Agent is reasonably satisfied that such currency
is readily available in the required amounts and that such currency selection is
not otherwise disadvantageous to any Administrative Agent or any Lender. Upon
the date of the issuance of a Letter of Credit, the applicable Issuer shall be
deemed, without further action by any party hereto, to have sold to each U.S.
Lender, Canadian Lender or Norwegian Lender, as the case may be, and each such
U.S. Lender (subject to the restrictions set forth in Section 2.1(a) hereof),
Canadian Lender or Norwegian Lender, as the case may be, shall be deemed,
without further action by any party hereto, to have purchased from the
applicable Issuer, a participation, to the extent of such Lender's Commitment
Percentage, in such Letter of Credit and the related Letter of Credit
Liabilities, which participation shall terminate on the earlier of the
expiration date of such Letter of Credit or the Termination Date. Any Letter of
Credit that shall have an expiration date after the end of the Availability
Period shall be subject to Cover or backed by a standby letter of credit in form
and substance, and issued by a Person acceptable to the Issuing Bank, in its
sole discretion (such acceptance not to be unreasonably withheld). Xxxxx Fargo
or, with the prior approval of U.S. Borrower, U.S. Administrative Agent and the
applicable U.S. Lender, another U.S. Lender shall be the Issuer of each U.S.
Letter of Credit, The Bank of Nova Scotia, or, with the prior approval of
Canadian Borrowers, Canadian Administrative Agent and the applicable Canadian
Lender, another Canadian Lender shall be the Issuer of each Canadian Letter of
Credit and Den norske Bank, ASA, or, with the prior approval of Norwegian
Borrower, Norwegian Administrative Agent and the applicable Norwegian Lender,
another Norwegian Lender shall be the Issuer of each Norwegian Letter of Credit.
Except as provided above, all U.S. Letters of Credit shall be denominated in
Dollars, all Canadian Letters of Credit shall, at the option of the applicable
Canadian Borrower, be denominated in either Dollars or Canadian Dollars and all
Norwegian Letters of Credit shall, at the option of Norwegian Borrower, be
denominated in either Dollars or Norwegian Krone. Fees due in respect of a U.S.
Letter of Credit shall be payable in Dollars; fees due in respect of a Canadian
Letter of Credit shall be payable (i) in Dollars, if such Letter of Credit is
denominated in Dollars and (ii) in Canadian Dollars if such Letter of Credit is
denominated in Canadian Dollars or any other currency; and fees due in respect
of a Norwegian Letter of Credit shall be payable (i) in Dollars, if such Letter
of Credit is denominated in Dollars and (ii) in Norwegian Krone if such Letter
of Credit is denominated in Norwegian Krone or any other currency.
ADDITIONAL PROVISIONS. The following additional provisions shall apply to each
Letter of Credit:
U.S. Borrower, a Canadian Borrower or Norwegian Borrower, as the case may be,
shall give the appropriate Administrative Agent notice requesting each issuance
of a Letter of Credit hereunder as provided in Section 4.3 hereof and shall
furnish such additional information regarding such transaction as such
Administrative Agent may reasonably request. Upon receipt of such notice, such
Administrative Agent shall promptly notify each U.S. Lender, Canadian Lender or
Norwegian Lender, as the case may be, of the contents thereof and of such
Lender's Commitment Percentage of the amount of such proposed Letter of Credit.
No U.S. Letter of Credit may be issued if after giving effect thereto the sum of
(A) the aggregate outstanding principal amount of U.S. Loans and U.S. Swing Line
Loans plus (B) the aggregate
31
Letter of Credit Liabilities relating to U.S. Letters of Credit would exceed
the Maximum U.S. Available Amount. No Canadian Letter of Credit may be issued if
after giving effect thereto the sum of (A) the aggregate outstanding principal
amount of Canadian Loans plus (B) the aggregate Letter of Credit Liabilities
relating to Canadian Letters of Credit plus (C) the aggregate Bankers'
Acceptance Liabilities would exceed the Maximum Canadian Available Amount. No
Norwegian Letter of Credit may be issued if after giving effect thereto the sum
of (A) the aggregate outstanding principal amount of Norwegian Loans plus (B)
the aggregate Letter of Credit Liabilities relating to Norwegian Letters of
Credit would exceed the Maximum Norwegian Available Amount. On each day during
the period commencing with the issuance of any Letter of Credit and until such
Letter of Credit shall have expired or been terminated, the U. S. Commitment,
Canadian Commitment or Norwegian Commitment, as the case may be, of each
applicable Lender shall be deemed to be utilized for all purposes hereof in an
amount equal to such Lender's Commitment Percentage of the amount then available
for drawings under such Letter of Credit (and any unreimbursed drawings under
such Letter of Credit).
Upon receipt from the beneficiary of any Letter of Credit of any demand for
payment thereunder, the applicable Issuer shall notify the Administrative Agents
and thereafter the U.S. Administrative Agent, the Canadian Administrative Agent
or Norwegian Administrative Agent, as the case may be, shall promptly notify the
applicable Borrower and each applicable Lender as to the amount to be paid as a
result of such demand and the payment date therefor. If at any time prior to the
expiration date of a Letter of Credit any applicable Issuer shall have made a
payment to a beneficiary of a Letter of Credit in respect of a drawing under
such Letter of Credit, each applicable Lender will pay to the U.S.
Administrative Agent, the Canadian Administrative Agent or Norwegian
Administrative Agent, as the case may be, immediately upon demand by such Issuer
at any time during the period commencing after such payment until reimbursement
thereof in full by the applicable Borrower, an amount equal to such Lender's
U.S. Commitment Percentage, Canadian Commitment Percentage or Norwegian
Commitment Percentage, as the case may be, of such payment, together with
interest on such amount for each day from the date of demand for such payment
(or, if such demand is made after 11:00 a.m. Houston, Texas time (in the case of
a U.S. Letter of Credit), 12:00 noon Calgary, Alberta time (in the case of a
Canadian Letter of Credit) or 12:00 noon Oslo, Norway time (in the case of a
Norwegian Letter of Credit) on such date, from the next succeeding Business Day)
to the date of payment by such Lender of such amount at a rate of interest per
annum equal to (i) in respect of U.S. Letters of Credit, the Federal Funds Rate,
(ii) in respect of Canadian Letters of Credit which are denominated in Dollars,
the Base Rate plus two percent (2%), (iii) in respect of Canadian Letters of
Credit which are denominated in Canadian Dollars, the CDOR Rate, (iv) in respect
of Norwegian Letters of Credit which are denominated in Dollars, the Base Rate
plus two percent (2%) and (v) in respect of Norwegian Letters of Credit which
are denominated in Norwegian Krone, the Eurokrone Rate plus two percent (2%). To
the extent that it is ultimately determined that the applicable Borrower is
relieved of its obligation to reimburse the applicable Issuer because of such
Issuer's gross negligence or willful misconduct in determining that documents
received under any applicable Letter of Credit comply with the terms thereof,
the applicable Issuer shall be obligated to refund to the paying Lenders all
amounts paid to such Issuer to reimburse Issuer for the applicable drawing under
such Letter of Credit.
U.S. Borrower, Canadian Borrowers or Norwegian Borrower, as the case may be,
shall be irrevocably and unconditionally obligated forthwith to reimburse the
appropriate Administrative Agent, on the date on which such Administrative Agent
notifies U.S. Borrower, the applicable
32
Canadian Borrower or Norwegian Borrower, as the case may be, of the date and
amount of any payment by the applicable Issuer of any drawing under a Letter of
Credit, for the amount paid by such Issuer upon such drawing, without
presentment, demand, protest or other formalities of any kind, all of which are
hereby waived. Such reimbursement may, subject to satisfaction of the conditions
in Sections 5.1 and 5.2 hereof and to the Maximum U.S. Available Amount, Maximum
Canadian Available Amount or Maximum Norwegian Available Amount, as the case may
be (after adjustment in the same to reflect the elimination of the corresponding
Letter of Credit Liability), be made by the borrowing of Loans or, in the case
of a Canadian Borrower, by the issuance, acceptance and purchase of Bankers'
Acceptances. The applicable Administrative Agent will pay to each Lender such
Lender's Commitment Percentage of all amounts received from U.S. Borrower,
Canadian Borrowers or Norwegian Borrower, as the case may be, for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of any
Letter of Credit, but only to the extent such Lender has made payment to the
applicable Administrative Agent in respect of such Letter of Credit pursuant to
clause (iii) above. Each Borrower hereby unconditionally and irrevocably
authorizes, empowers, and directs the applicable Administrative Agent and the
Lenders to record and otherwise treat each payment under a Letter of Credit
issued for the account of such Borrower not reimbursed when due hereunder as a
Base Rate Borrowing to such Borrower.
The issuance by the applicable Issuer of each Letter of Credit shall, in
addition to the conditions precedent set forth in Article V hereof, be subject
to the conditions precedent (A) that such Letter of Credit shall be in such form
and contain such terms as shall be reasonably satisfactory to applicable
Administrative Agent, and (B) that U.S. Borrower, Canadian Borrowers or
Norwegian Borrower, as the case may be, shall have executed and delivered such
Applications and other instruments and agreements relating to such Letter of
Credit as the applicable Administrative Agent shall have reasonably requested
and are not inconsistent with the terms of this Agreement. In the event of a
conflict between the terms of this Agreement and the terms of any Application,
the terms hereof shall control.
Each Issuer will send to U.S. Borrower, the applicable Canadian Borrower or
Norwegian Borrower, as the case may be, and each applicable Lender, immediately
upon issuance of any Letter of Credit issued by such Issuer or any amendment
thereto, a true and correct copy of such Letter of Credit or amendment.
FURTHER PROVISIONS. The following additional provisions shall apply to each
respective Commercial Letter of Credit and Standby Letter of Credit as set forth
below:
For each Commercial Letter of Credit issued on behalf of each Borrower:
the expiry date shall not be longer than 180 days from the date of issuance,
provided that, no expiry date shall extend beyond the Maturity Date;
at the time of issuance, U.S. Borrower, the applicable Canadian Borrower or
Norwegian Borrower, as the case may be, shall pay to the U.S. Administrative
Agent, Canadian Administrative Agent or Norwegian Administrative Agent, as the
case may be, for the benefit of the U.S. Lender, Canadian Lender or Norwegian
Lender, as the case may be, an issuance fee equal to the greater of (x) 0.125%
of the amount of the Commercial Letter of Credit issued, or (y) US$250. After
the occurrence of an Event of Default which has not been cured or waived, the
letter of credit fee provided for the preceding sentence shall, on a
Tranche-by-Tranche basis, be increased by two
33
percent (2%) of the aggregate amount of the Commercial Letters of Credit
outstanding upon the approval of such increase by Lenders having 50% or more of
the Aggregate Commitments related to such Tranche, such increased fee to be due
and payable upon demand by the applicable Administrative Agent. In the event any
Letter of Credit is drawn, that portion of the applicable letter of credit fee
provided for in the preceding sentence relating to the period beyond the date of
such drawing shall be credited to the applicable Borrower's Reimbursement
Obligations relating thereto. The applicable Administrative Agent will pay to
each applicable Lender, promptly after receiving any payment in respect of
letter of credit fees referred to in this clause (2), an amount equal to the
product of such Lender's U.S. Commitment Percentage, Canadian Commitment
Percentage or Norwegian Commitment Percentage, as the case may be, times the
amount of such fees; and
U.S. Borrower, the applicable Canadian Borrower or Norwegian Borrower, as the
case may be, shall pay to the applicable Issuing Bank, on demand, such other
fronting, amendment, transfer, negotiation and other fees as determined in
accordance with the applicable Issuing Bank's then current fee policy regarding
Commercial Letters of Credit;
The applicable Issuing Bank shall neither renew or extend nor permit the renewal
or extension of any Commercial Letter of Credit if after giving effect to such
renewal, the expiry date of such Commercial Letter of Credit would be a date
that is later than the Maturity Date.
For each Standby Letter of Credit issued on behalf of each Borrower:
U.S. Borrower, the applicable Canadian Borrower or Norwegian Borrower, as the
case may be, will pay to the appropriate Administrative Agent at the Principal
Office of such Administrative Agent for the account of each applicable Lender a
letter of credit fee with respect to each Standby Letter of Credit equal to the
Margin Percentage applicable to LIBOR Borrowings or NIBOR Borrowings, as the
case may be, multiplied by the face amount available of each Standby Letter of
Credit issued (and computed on the basis of the actual number of days elapsed in
a year composed of 360 days), in each case for the period from and including the
date of issuance of such Letter of Credit to and including the date of
expiration or termination thereof, such fee to be due and payable quarterly (i)
in arrears in the case of U.S. Letters of Credit and Norwegian Letters of Credit
and (ii) in case of Canadian Letters of Credit in advance. After the occurrence
of an Event of Default which has not been cured or waived, the letter of credit
fee provided for the preceding sentence shall, on a Tranche-by-Tranche basis, be
increased by two percent (2%) per annum upon the approval of such increase by
Lenders having 50% or more of the Aggregate Commitments related to such Tranche,
such increased fee to be due and payable upon demand by the applicable
Administrative Agent. In the event any Letter of Credit is drawn, that portion
of the applicable letter of credit fee provided for in the preceding sentence
relating to the period beyond the date of such drawing shall be credited to the
applicable Borrower's Reimbursement Obligations relating thereto. The applicable
Administrative Agent will pay to each applicable Lender, promptly after
receiving any payment in respect of letter of credit fees referred to in this
Section 2.3(c)(ii)(1), an amount equal to the product of such Lender's U.S.
Commitment Percentage, Canadian Commitment Percentage or Norwegian Commitment
Percentage, as the case may be, times the amount of such fees.
In addition to and cumulative of the above described fees, U.S. Borrower, the
applicable Canadian Borrower or Norwegian Borrower, as the case may be, shall
pay to the appropriate Administrative
34
Agent, for the account of the applicable Issuing Bank, in advance on the date of
the issuance of the applicable Standby Letter of Credit, a fronting fee in an
amount equal to the greater of (x) 0.125% of the amount of the Standby Letter of
Credit issued, or (y) US$400 (such fee to be retained by the applicable Issuing
Bank for its own account); and the applicable Borrower shall also pay to the
applicable Issuing Bank such other amendment, transfer, negotiation and other
fees as determined in accordance with the Issuing Bank's then current fee policy
regarding Standby Letters of Credit;
The Issuing Bank shall neither renew or extend nor permit the renewal or
extension of any Standby Letter of Credit if after giving effect to such
renewal, the expiry date of such Letter of Credit would be a date that is later
than twelve months beyond the Maturity Date then in effect.
INDEMNIFICATION; RELEASE. Each of U.S. Borrower, Canadian Borrowers and
Norwegian Borrower, as the case may be, hereby indemnifies and holds harmless
each applicable Administrative Agent, each applicable Lender and each applicable
Issuer from and against any and all claims and damages, losses, liabilities,
costs or expenses which such Administrative Agent, such Lender or such Issuer
may incur (or which may be claimed against such Administrative Agent, such
Lender or such Issuer by any Person whatsoever), REGARDLESS OF WHETHER CAUSED IN
WHOLE OR IN PART BY THE NEGLIGENCE OF ANY OF THE INDEMNIFIED PARTIES, in
connection with the execution and delivery of any Letter of Credit or transfer
of or payment or failure to pay under any Letter of Credit; provided that U.S.
Borrower, Canadian Borrowers or Norwegian Borrower, as the case may be, shall
not be required to indemnify any party seeking indemnification for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of the party
seeking indemnification, or (ii) the failure by the party seeking
indemnification to pay under any Letter of Credit after the presentation to it
of a request required to be paid under applicable law. U.S. Borrower, Canadian
Borrowers or Norwegian Borrower, as the case may be, hereby releases, waives and
discharges each Administrative Agent, each Lender and each Issuer from any
claims, causes of action, damages, losses, liabilities, reasonable costs or
expenses which may now exist or may hereafter arise, REGARDLESS OF WHETHER
CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY OF THE INDEMNIFIED
connection with the failure of any other Lender to fulfill or comply with its
obligations to such Administrative Agent, such Lender or such Issuer, as the
case may be, hereunder (but nothing herein contained shall affect any rights
U.S. Borrower, Canadian Borrowers or Norwegian Borrower, as the case may be, may
have against such defaulting Lender or may have in respect of gross negligence
or willful misconduct). Nothing in this Section 2.3(d) is intended to limit the
obligations of U.S. Borrower, Canadian Borrowers or Norwegian Borrower, as the
case may be, under any other provision of this Agreement.
ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. If as a result of any
Regulatory Change there shall be imposed, modified or deemed applicable any tax
(other than any franchise tax or tax based on or measured by income or
revenues), reserve, special deposit or similar requirement against or with
respect to or measured by reference to Letters of Credit issued or to be issued
hereunder or participations in such Letters of Credit, and the result shall be
to increase the cost to any Lender of issuing or maintaining any Letter of
Credit or any participation therein, or materially reduce any amount receivable
by any Lender hereunder
35
in respect of any Letter of Credit or any participation therein (which increase
in cost, or reduction in amount receivable, shall be the result of such Lender's
reasonable allocation of the aggregate of such increases or reductions resulting
from such event), then such Lender shall notify U.S. Borrower, the applicable
Canadian Borrower or Norwegian Borrower, as the case may be, through the
appropriate Administrative Agent (which notice shall be accompanied by a
statement setting forth in reasonable detail the basis for the determination of
the amount due), and within 15 Business Days after demand therefor by such
Lender through such Administrative Agent, U.S. Borrower, the applicable Canadian
Borrower or Norwegian Borrower, as the case may be, shall pay to such Lender,
from time to time as specified by such Lender, such additional amounts as shall
be sufficient to compensate such Lender for such increased costs or reductions
in amount. Such statement as to such increased costs or reductions in amount
incurred by such Lender, submitted by such Lender to U.S. Borrower, the
applicable Canadian Borrower or Norwegian Borrower, as the case may be, shall be
conclusive as to the amount thereof, absent manifest error, and may be computed
using any reasonable averaging and attribution method. Each Lender will notify
U.S. Borrower, the applicable Canadian Borrower or Norwegian Borrower, as the
case may be, through the appropriate Administrative Agent of any event occurring
after the date of this Agreement which will entitle such Lender to compensation
pursuant to this Section as promptly as practicable after any executive officer
of such Lender obtains knowledge thereof and determines to request such
compensation, and (if so requested by U.S. Borrower, the applicable Canadian
Borrower or Norwegian Borrower, as the case may be, through the appropriate
Administrative Agent) will designate a different lending office of such Lender
for the issuance or maintenance of Letters of Credit by such Lender or will take
such other action as U.S. Borrower, the applicable Canadian Borrower or
Norwegian Borrower, as the case may be, may reasonably request if such
designation or action is consistent with the internal policy of such Lender and
legal and regulatory restrictions, can be undertaken at no additional cost, will
avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of such Lender, be disadvantageous to such Lender (provided
that no such U.S. Lender shall have any obligation so to designate a different
lending office which is not located in the United States of America, no such
Canadian Lender shall have any obligation so to designate a different lending
office which is not located in Canada and no such Norwegian Lender shall have
any obligation so to designate a different lending office which is not located
in Norway).
COLLATERAL ACCOUNT. U.S. Borrower, Canadian Borrowers or Norwegian Borrower, as
the case may be, shall be required to deposit cash or an irrevocable standby
letter of credit issued by a bank or other financial institution acceptable to
the Issuing Bank (such acceptance not to be unreasonably withheld), for the
benefit of the U.S. Lender, Canadian Lender or Norwegian Lender, as the case may
be, in an account of the Issuing Bank if (i) required pursuant to any Section
herein, or (ii) within 30 days prior to the Maturity Date then in effect in an
amount equal to the Letter of Credit Exposure as of such date.
EXISTING LETTERS OF CREDIT. On the date of this Agreement, the Existing Canadian
Letters of Credit will become Canadian Letters of Credit hereunder and the
Existing Norwegian Letters of Credit will become Norwegian Letters of Credit
hereunder and all provisions of this Section 2.3 and this Agreement shall apply
to the Existing Canadian Letters of Credit
36
and Existing Norwegian Letters of Credit as if they had been issued hereunder.
On the date of this Agreement, the Issuing Bank shall issue a Standby Letter of
Credit to cover or back the full outstanding and undrawn amount of the Existing
U.S. Letters of Credit. This Standby Letter of Credit will become a U.S. Letter
of Credit hereunder and all provisions of this Section 2.3 and this Agreement
shall apply thereto.
CERTAIN PROVISIONS RELATING TO BANKERS' ACCEPTANCES.
Subject to the terms and conditions hereof, each Canadian Lender severally
agrees to accept and purchase Bankers' Acceptances drawn upon it by either
Canadian Borrower denominated in Canadian Dollars. The applicable Canadian
Borrower shall notify the Canadian Administrative Agent by irrevocable written
notice (each a "Bankers' Acceptance Notice") by 12:00 noon (Calgary, Alberta
time) two (2) Business Days prior to the proposed date of any borrowing by way
of Bankers' Acceptances. Each borrowing by way of Bankers' Acceptances shall be
in a minimum aggregate face amount of C$1,000,000 and integral multiples of
C$100,000 in excess thereof. The face amount of each Bankers' Acceptance shall
be C$100,000 or any integral multiple thereof. Each Bankers' Acceptance Notice
shall be in the form of Exhibit I.
Bankers' Acceptances shall be issued and shall mature on a Business Day. Each
Bankers' Acceptance shall have a term of 30, 60, 90 or, if available, 180 days
excluding days of grace and shall mature on or before the Maturity Date and
shall be in form and substance reasonably satisfactory to the Canadian
Administrative Agent.
To facilitate the acceptance of Bankers' Acceptances under this Agreement, each
Canadian Borrower shall, upon execution of this Agreement and from time to time
as required, provide to the Canadian Administrative Agent drafts, in form
satisfactory to the Canadian Administrative Agent, duly executed and endorsed in
blank by such Canadian Borrower in quantities sufficient for each Canadian
Lender to fulfill its obligations hereunder. Each Canadian Borrower recognizes
and agrees that all Bankers' Acceptances signed and/or endorsed on its behalf by
a Canadian Lender shall bind such Canadian Borrower as fully and effectually as
if signed in the handwriting of and duly issued by the proper signing officer of
such Canadian Borrower. Each Canadian Lender is hereby authorized to issue such
Bankers' Acceptances endorsed in blank in such face amounts as may be determined
by such Canadian Lender provided that the aggregate amount thereof is equal to
the aggregate amount of Bankers' Acceptances required to be accepted by such
Canadian Lender. No Canadian Lender shall be responsible or liable for its
failure to accept a Bankers' Acceptance if the cause of such failure is, in
whole or in part, due to the failure of the respective Canadian Borrower to
provide duly executed and endorsed drafts to the Canadian Administrative Agent
on a timely basis nor shall any Canadian Lender be liable for any damage, loss
or other claim arising by reason of any loss or improper use of any such
instrument except loss or improper use arising by reason of the gross negligence
or willful misconduct of such Canadian Lender, its officers, employees,
Administrative Agents or representatives. Each Canadian Lender shall maintain a
record with respect to Bankers' Acceptances (i) received by it from the Canadian
Administrative Agent or either Canadian Borrower in blank hereunder, (ii) voided
by it for any reason, (iii) accepted by it hereunder, (iv) purchased by it
hereunder and (v) canceled at their respective maturities. Each Canadian Lender
further agrees to retain such records in the manner and for the statutory
periods provided in the various Canadian provincial or federal statutes and
regulations which apply to such Canadian Lender.
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Subject to Section 2.4(d) below, drafts of each Canadian Borrower to be accepted
as Bankers' Acceptances hereunder shall be duly executed by a duly authorized
officer of such Canadian Borrower. Notwithstanding that any person whose
signature appears on any Bankers' Acceptance as a signatory for each Canadian
Borrower may no longer be an authorized signatory for such Canadian Borrower at
the date of issuance of a Bankers' Acceptance, such signature shall nevertheless
be valid and sufficient for all purposes as if such authority had remained in
force at the time of such issuance and any such Bankers' Acceptance so signed
shall be binding on such Canadian Borrower.
Promptly following receipt of a Bankers' Acceptance Notice, the Canadian
Administrative Agent shall so advise the Canadian Lenders and shall advise each
Canadian Lender of the face amount of each Bankers' Acceptance to be accepted by
it and the term thereof. The aggregate face amount of Bankers' Acceptances to be
accepted by a Canadian Lender shall be determined by the Canadian Administrative
Agent by reference to the respective Canadian Commitments of the Canadian
Lenders, except that, if the face amount of a Bankers' Acceptance, which would
otherwise be accepted by a Canadian Lender, would not be C$100,000 or an
integral multiple thereof, such face amount shall be increased or reduced by the
Canadian Administrative Agent in its sole and unfettered discretion to the
nearest integral multiple of C$100,000.
Each Bankers' Acceptance to be accepted by a Canadian Lender shall be accepted
at such Canadian Lender's office shown on the signature pages hereof or as
otherwise designated by such Canadian Lender from time to time.
On the relevant borrowing date, each Canadian Lender severally agrees to
purchase from the applicable Canadian Borrower, at the face amount thereof
discounted by the Applicable BA Discount Rate, any Bankers' Acceptance accepted
by it and provided to the Canadian Administrative Agent, for the account of such
Canadian Borrower, the BA Discount Proceeds in respect thereof after deducting
therefrom the amount of the Acceptance Fee payable by such Canadian Borrower to
such Canadian Lender and the Canadian Administrative Agent under Section 2.4(c)
in respect of such Bankers' Acceptance.
Each Canadian Lender may at any time and from time to time hold, sell,
rediscount or otherwise dispose of any or all Bankers' Acceptances accepted and
purchased by it.
Each Canadian Borrower waives presentment for payment and any other defense to
payment of any amounts due to a Canadian Lender in respect of a Bankers'
Acceptance accepted by it pursuant to this Agreement which might exist solely by
reason of such Bankers' Acceptance being held, at the maturity thereof, by such
Canadian Lender in its own right and each Canadian Borrower agrees not to claim
any days of grace if such Canadian Lender as holder sues such Canadian Borrower
on the Bankers' Acceptances for payment of the amount payable by such Canadian
Borrower thereunder.
With respect to each Bankers' Acceptance, a Canadian Borrower, prior to the
occurrence and continuation of a Default, may give irrevocable telephone or
written notice (or such other method of notification as may be agreed upon
between the Canadian Administrative Agent and such Canadian Borrower) to the
Canadian Administrative Agent at or before 12:00 noon (Calgary, Alberta time)
two (2) Business Days prior to the maturity date of such Bankers' Acceptance
followed by written confirmation electronically transmitted to the Canadian
38
Administrative Agent on the same day, of such Canadian Borrower's intention to
issue one or more Bankers' Acceptance on such maturity date (each a "Refunding
Bankers' Acceptance") to provide for the payment of such maturing Bankers'
Acceptance (it being understood that payments by such Canadian Borrower and
fundings by the Canadian Lenders in respect of each maturing Bankers' Acceptance
and each related Refunding Bankers' Acceptance shall be made on a net basis
reflecting the difference between the face amount of such maturing Bankers'
Acceptance and the BA Discount Proceeds (net of the applicable Acceptance Fee)
of such Refunding Bankers' Acceptance). Any funding on account of any maturing
Bankers' Acceptance must be made at or before 12:00 noon (Calgary, Alberta time)
on the maturity date of such Bankers' Acceptance. If such Canadian Borrower
fails to give such notice, then subject to satisfaction of the conditions in
Section 5 hereof and to the Maximum Canadian Available Amount, such Canadian
Borrower shall be irrevocably deemed to have requested and to have been advanced
a Canadian Prime Loan in the face amount of such maturing Bankers' Acceptance on
the maturity date of such Bankers' Acceptance from the Canadian Lender which
accepted such maturing Bankers' Acceptance, which Canadian Prime Loan shall
thereafter bear interest as such in accordance with the provisions hereof until
paid in full.
An Acceptance Fee shall be payable by the applicable Canadian Borrower to each
Canadian Lender in advance (in the manner specified in Section 2.4(a)(6)) in
respect of, and as a condition precedent to the acceptance by such Canadian
Lender of, a Bankers' Acceptance to be accepted by such Canadian Lender
calculated at the rate per annum equal to the Margin Percentage applicable to
LIBOR Borrowings, calculated on the face amount of such Bankers' Acceptance and
computed on the basis of the number of days in the term of such Bankers'
Acceptance and a year of 365 days.
DEPOSITORY BILLS AND NOTES ACT. If and for so long as the power of attorney
referred to in subsection 2.4(e) is in force with respect to each of the
Canadian Lenders, it is intended that pursuant to the DBNA, all Bankers'
Acceptances accepted by the Canadian Lenders under this Agreement will be issued
in the form of a "depository xxxx" (as defined in the DBNA), deposited with a
"clearing house" (as defined in the DBNA, including, without limitation, The
Canadian Depository for Securities Ltd. or its nominee CDS & Co.). In order to
give effect to the foregoing, the Canadian Agent will, subject to the approval
of Canadian Borrowers, establish and notify Canadian Borrowers and the Canadian
Lenders of any additional procedures, consistent with the terms of this
Agreement and the DBNA, as are reasonably necessary to accomplish such
intention, including:
any instrument held by the Canadian Agent for the purposes of Bankers'
Acceptances will have marked prominently and legibly on its face and within its
text, at or before the time of issue, the words "This is a depository xxxx
subject to the Depository Bills and Notes Act (Canada)"; any reference to the
authentication of the Bankers' Acceptance will be removed; and any reference to
the "bearer" will be removed and such Bankers' Acceptances will not be marked
with any words prohibiting negotiation, transfer or assignment of it or of an
interest in it.
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POWER OF ATTORNEY. Canadian Borrowers hereby appoint the Canadian Agent and
each Canadian Lender, acting by any authorized signatory of any such Person,
the attorney of the undersigned:
to execute, for and on behalf and in the name of the applicable Canadian
Borrower as drawer of, and to endorse on its behalf, drafts in such Person's
standard form which constitute depository bills for the purpose of the DBNA;
to complete the amount, date and maturity date of such Bankers' Acceptances;
and
to deposit such Bankers' Acceptances which have been accepted by such
Person with a clearing house (as defined in the DBNA);
provided that such acts in each case are to be undertaken by such Person
strictly in accordance with instructions given to it by the applicable Canadian
Borrower as provided in this subsection 2.4(e). For certainty, signatures of
any authorized signatory of such Person may be mechanically reproduced in
facsimile on Bankers' Acceptances (or Discount Notes as applicable) issued in
accordance with this Agreement and such facsimile signatures will be binding
and effective as if they had been manually executed by such authorized
signatory of such Person.
Instructions from the applicable Canadian Borrower to such Person relating to
the execution, completion, endorsement, discount and/or delivery by such Person
on behalf of the applicable Canadian Borrower of Bankers' Acceptances will be
communicated by delivery to the Canadian Agent of a Request for Extension of
Credit (Canadian Borrowers) or a Rate Designation Notice, as applicable. This
power of attorney may be withdrawn by Canadian Borrowers by providing the
Canadian Agent and each Canadian Lender with 2 days written notice of such
withdrawal.
TERMINATIONS, REDUCTIONS OR REALLOCATIONS OF COMMITMENTS.
MANDATORY. On the Termination Date, all Commitments shall be terminated in
their entirety.
OPTIONAL. U.S. Borrower, either Canadian Borrower or Norwegian Borrower, as the
case may be, shall have the right to terminate or reduce the unused portion of
the U.S. Commitments, Canadian Commitments or Norwegian Commitments, as the
case may be, at any time or from time to time, provided that (i) U.S. Borrower,
either Canadian Borrower or Norwegian Borrower, as the case may be, shall give
notice of each such termination or reduction to the appropriate Administrative
Agent as provided in Section 4.3 hereof and (ii) each such partial reduction
shall be in an integral multiple of US$5,000,000. Notwithstanding the
foregoing, U.S. Borrower may not reduce the U.S. Commitments below the then
outstanding principal balance of the U.S. Obligations, Canadian Borrowers may
not reduce the Canadian Commitments below the then outstanding principal
balance of the Canadian Obligations, and Norwegian Borrower may not reduce the
Norwegian Commitments below the then outstanding principal balance of the
Norwegian Obligations. No termination or reduction of the Commitments pursuant
to this provision may be reinstated without the prior written approval of
Administrative Agents and the Lenders.
REALLOCATIONS. Any Multiple Lender may agree with Borrowers to reallocate its
existing U.S. Commitment, Canadian Commitment or Norwegian Commitment, so long
as the sum of such U.S. Commitment, Canadian Commitment and Norwegian
Commitment remains unchanged.
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In addition, with the prior written consent of all of the Multiple Lenders, any
U.S. Lender may agree with Borrowers to convert a portion of its U.S.
Commitment into a Canadian Commitment or Norwegian Commitment, thereby becoming
a Multiple Lender, and any Canadian Lender may agree with Borrowers to convert
a portion of its Canadian Commitment into a U.S. Commitment or Norwegian
Commitment, thereby becoming a Multiple Lender, and any Norwegian Lender may
agree with Borrowers to convert a portion of its Norwegian Commitment into a
Canadian Commitment or U.S. Commitment, thereby becoming a Multiple Lender, in
each case so long as (i) each Lender continues to be a U.S. Lender with a U.S.
Commitment of at least US$1,000,000, (ii) the sum of such Lender's U.S.
Commitment, Canadian Commitment and Norwegian Commitment remains equal to the
aggregate amount of such Lender's U.S. Commitment, Canadian Commitment and
Norwegian Commitment, as the case may be, prior to such reallocation and (iii)
the Canadian Commitment and Norwegian Commitment, each individually, shall not
exceed US$40,000,000. Borrowers shall give written notice to the Administrative
Agents of any reallocation pursuant to this provision at least ten (10)
Business Days prior to the effective date of any such reallocation. No
applicable Lender affected by such reallocation shall be required to agree to
any such reallocation, but may do so at its option, in its sole discretion. The
following conditions precedent must be satisfied prior to any such reallocation
becoming effective:
no Default or Event of Default shall have occurred and be continuing;
if, as a result of any such reallocation, the aggregate U.S. Obligations would
exceed the aggregate of all of the U.S. Commitments, then the U.S. Borrower
shall, on the effective date of such reallocation, repay or prepay U.S. Loans
(or provide Cover for Letter of Credit Liabilities relating to U.S. Letters of
Credit) in accordance with this Agreement in an aggregate principal amount such
that, after giving effect thereto, the aggregate U.S. Obligations shall not
exceed the aggregate of all of the U.S. Commitments;
if, as a result of any such reallocation, the Total Canadian Exposure would
exceed the aggregate of all of the Canadian Commitments, then Canadian
Borrowers shall, on the effective date of such reallocation, repay or prepay
Canadian Loans(or provide Cover for Letter of Credit Liabilities relating to
Canadian Letters of Credit or for Bankers' Acceptance Liabilities) in
accordance with this Agreement in an aggregate principal amount such that,
after giving effect thereto, the Total Canadian Exposure shall not exceed the
aggregate of all of the Canadian Commitments;
if, as a result of any such reallocation, the Total Norwegian Exposure would
exceed the aggregate of all of the Norwegian Commitments, then Norwegian
Borrower shall, on the effective date of such reallocation, repay or prepay
Norwegian Loans (or provide Cover for Letter of Credit Liabilities relating to
Norwegian Letters of Credit) in accordance with this Agreement in an aggregate
principal amount such that, after giving effect thereto, the Total Norwegian
Exposure shall not exceed the aggregate of all of the Norwegian Commitments;
Borrowers shall have paid any amounts (or shall have provided Cover) due under
Sections 2.11(c) or (d) or Section 2.11(e) hereof on the date of such
reallocation;
The Maximum U.S. Available Amount shall be adjusted to equal the sum of all of
the U.S. Commitments after giving effect to such reallocation, the Maximum
Canadian Available Amount shall be adjusted to equal the sum of all of the
Canadian Commitments after giving effect to such
41
reallocation and the Maximum Norwegian Available Amount shall be adjusted to
equal the sum of all of the Norwegian Commitments after giving effect to such
reallocation;
Participations by the Lenders in the outstanding Letters of Credit and the
Letter of Credit Liabilities and the outstanding Loans of the Lenders shall be
adjusted to give effect to such reallocation; provided, however, that in lieu
of requiring any prepayment of any Bankers' Acceptances in order to make
appropriate adjustments to give effect to such reallocations, Canadian
Borrowers shall be required to provide additional Cover for any applicable
portion of the Bankers' Acceptance Liabilities;
each Lender whose U.S. Commitment, Canadian Commitment or Norwegian Commitment,
as the case may be, shall be the subject of any reallocation shall have
received from the Borrowers a fee equal to the greater of the applicable
equivalent of US$10,000 or 1/16% of the amount of the increase or decrease, as
the case may be, in its respective U.S. Commitment, Canadian Commitment or
Norwegian Commitment.
UTILIZATION FEES.
UTILIZATION FEES. U.S. Borrower, Canadian Borrowers or Norwegian Borrower, as
the case may be, agrees to pay to the U.S. Administrative Agent, for the
ratable benefit of the Lenders, a daily utilization fee per annum equal to the
Margin Percentage in effect from time to time, times the Total Outstandings on
each day that the Total Outstandings exceed 33 1/3% of the total of the
Aggregate Commitments (or if the Aggregate Commitments have terminated, on the
Total Outstandings), from the Effective Date until the later of the Termination
Date or repayment in full of the Obligations, such fees due and payable
quarterly in arrears on the twentieth calendar day (or the first day thereafter
that is a Business Day) after the last Business Day of each March, June,
September and December, commencing October 21, 2002, and on the Termination
Date. The Utilization Fee shall accrue at all times so long as any of the U.S.
Commitment, Canadian Commitment or Norwegian Commitment or any of the
Obligations remain outstanding, including at any time during which one or more
of the conditions in Article V is not met. If there is any change in the Margin
Percentage during any quarter, the actual daily amount shall be computed and
multiplied by the Margin Percentage separately for each period during such
quarter that such Margin Percentage was in effect. For purposes of computation
of the above fees, within 10 days of the quarter then ended, Canadian Agent and
Norwegian Agent shall deliver to the U.S. Agent a daily log of outstanding
amounts in Dollars under the Canadian Commitment and Norwegian Commitment, as
the case may be, for the preceding quarter.
All past due fees payable under this Section shall bear interest at the Default
Rate.
FACILITY FEES.
U.S. Borrower, Canadian Borrowers or Norwegian Borrower, as the case may be,
agrees to pay to the U.S. Administrative Agent, the Canadian Administrative
Agent or the Norwegian Administrative Agent, as the case may be, for the
benefit of the U.S. Lender, Canadian Lender or Norwegian Lender, as the case
may be, a daily Facility Fee per annum equal to the Margin Percentage in effect
on the date such payment is due from time to time, times the actual daily
amount of the respective U.S. Commitment, Canadian Commitment, or
42
Norwegian Commitment, as the case may be, regardless of usage (or if the
Aggregate Commitments have terminated on the Total Outstandings), from the
Effective Date until the later of the Termination Date or repayment in full of
the Obligations, such fees due and payable quarterly in arrears on the
twentieth calendar day (or the first day thereafter that is a Business Day)
after the last Business Day of each March, June, September and December,
commencing October 21, 2002, and on the Termination Date. The Facility Fee
shall accrue at all times so long as any of the U.S. Commitment, Canadian
Commitment or Norwegian Commitments or any of the Obligations remain
outstanding, including at any time during which one or more of the conditions
in Article V is not met. If there is any change in the Margin Percentage
during any quarter, the actual daily amount shall be computed and multiplied by
the Margin Percentage separately for each period during such quarter that such
Margin Percentage was in effect.
All past due fees payable under this Section shall bear interest at the Default
Rate.
SEVERAL OBLIGATIONS. The failure of any Lender to make any Loan to be made by
it or to accept and purchase any Bankers' Acceptance required to be so accepted
and purchased by it on the date specified therefor shall not relieve any other
Lender of its obligation to make its Loan or to accept and purchase its
Bankers' Acceptance on such date, but neither any Administrative Agent nor any
Lender shall be responsible or liable for the failure of any other Lender to
make a Loan or to accept and purchase any Bankers' Acceptance or to participate
in, or co-issue, any Letter of Credit. Notwithstanding anything contained
herein to the contrary, (i) if a U.S. Lender fails to make a U.S. Loan as and
when required hereunder, then upon each subsequent event which would otherwise
result in payments of principal being made to the defaulting U.S. Lender, the
amount which would have been paid to the defaulting U.S. Lender shall be
divided among the non-defaulting U.S. Lenders ratably according to their
respective Commitment Percentages until the Obligations of each U.S. Lender
(including the defaulting U.S. Lender) are equal to such U.S. Lender's
Commitment Percentage of the total U.S. Obligations, (ii) if a Canadian Lender
fails to make a Canadian Loan or accept and purchase any Bankers' Acceptance as
and when required hereunder, then upon each subsequent event which would
otherwise result in payments of principal being made to the defaulting Canadian
Lender, the amount which would have been paid to the defaulting Canadian Lender
shall be divided among the non-defaulting Canadian Lenders ratably according to
their respective Commitment Percentages until the Obligations of each Canadian
Lender (including the defaulting Canadian Lender) are equal to such Canadian
Lender's Commitment Percentage of the total Canadian Obligations, and (iii) if
a Norwegian Lender fails to make a Norwegian Loan as and when required
hereunder, then upon each subsequent event which would otherwise result in
payments of principal being made to the defaulting Norwegian Lender, the amount
which would have been paid to the defaulting Norwegian Lender shall be divided
among the non-defaulting Norwegian Lenders ratably according to their
respective Commitment Percentages until the Obligations of each Norwegian
Lender (including the defaulting Norwegian Lender) are equal to such Norwegian
Lender's Commitment Percentage of the total Norwegian Obligations. In each
case, no Default or Event of Default shall exist or result from any defaulting
Lender not receiving payment when due as a result of this Section 2.8.
EVIDENCE OF DEBT.
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The U.S. Loans made by each U.S. Lender shall be evidenced by a U.S. Note of
U.S. Borrower in substantially the form of Exhibit D hereto payable to the
order of such U.S. Lender in a principal amount equal to the U.S. Commitment of
such U.S. Lender, and otherwise duly completed and a U.S. Swing Line Note of
U.S. Borrower in substantially the form of Exhibit F hereto payable to the
order of such U.S. Swing Line Lender in a principal amount equal to the
Commitment of such U.S. Swing Line Lender, and otherwise duly completed.. The
Canadian Loans made by each Canadian Lender which are denominated in Dollars
shall be evidenced by a single Canadian Note of Canadian Borrowers in
substantially the form of Exhibit C hereto payable to the order of such
Canadian Lender in a principal amount equal to the Canadian Commitment of such
Canadian Lender, and otherwise duly completed. The Canadian Prime Loans made by
each Canadian Lender shall be evidenced by a single Canadian Dollar Note of
Canadian Borrowers in substantially the form of Exhibit J hereto payable to the
order of such Canadian Lender in a principal amount equal to US$20,000,000. The
Norwegian Loans made by each Norwegian Lender which are denominated in Dollars
shall be evidenced by a single Norwegian Krone Note of Norwegian Borrower in
substantially the form of Exhibit E hereto payable to the order of such
Norwegian Lender in a principal amount equal to the Norwegian Commitment of
such Norwegian Lender, and otherwise duly completed. The Norwegian Loans made
by each Norwegian Lender shall be evidenced by a single Norwegian Krone Note of
Norwegian Borrower in substantially the form of Exhibit L hereto payable to the
order of such Norwegian Lender in a principal amount equal to US$20,000,000,
and otherwise duly completed. The promissory notes described in this Section
are each, together with all renewals, extensions, modifications and
replacements thereof and substitutions therefor, called a "Note" and
collectively called the "Notes". Each Lender is hereby authorized by each
Borrower to endorse on the schedule (or a continuation thereof) that may be
attached to each Note of such Lender, to the extent applicable, the date,
amount, type of and the applicable period of interest for each Loan made by
such Lender to the applicable Borrower hereunder, and the amount of each
payment or prepayment of principal of such Loan received by such Lender,
provided, that any failure by such Lender to make any such endorsement shall
not affect the obligations of any Borrower under such Note or hereunder in
respect of such Loan.
In addition to Notes, the Loans made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the applicable
Administrative Agent in the ordinary course of business. The accounts or
records maintained by the applicable Administrative Agent and each Lender shall
be conclusive absent manifest error of the amount of the Loans made by the
Lenders to the Borrowers and the interest and payments thereon. In the event of
conflict between the Notes and such accounts and records, such accounts and
records shall control. Any failure to so record or any error in doing so shall
not, however, limit or otherwise affect the obligation of the Borrowers
hereunder to pay any amount owing with respect to the Obligations. In the event
of any conflict between the accounts and records maintained by any Lender and
the accounts and records of the applicable Administrative Agent in respect of
such matters, the accounts and records of the applicable Administrative Agent
shall control in the absence of manifest error.
In addition to the accounts and records referred to in subsection (b), each
Lender and the applicable Administrative Agent shall maintain in accordance with
its usual practice
44
accounts or records evidencing the purchases and sales by such Lender of
participations in U.S. Letters of Credit, Canadian Letters of Credit or
Norwegian Letters of Credit, as the case may be, Bankers' Acceptances and U.S.
Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the applicable Administrative Agent and the accounts and records
of any Lender in respect of such matters, the accounts and records of the
applicable Administrative Agent shall control in the absence of manifest error.
USE OF PROCEEDS. The proceeds of the Loans and of the acceptance and purchase
of Bankers' Acceptances may be used by the Borrowers for any lawful corporate
purpose not expressly prohibited in this Agreement including, without
limitation, (i) to refinance certain existing indebtedness of the Borrowers,
and (ii) other working capital and general corporate purposes of the Parent,
Borrowers and their respective Subsidiaries. Neither any Administrative Agent
nor any Lender shall have any responsibility as to the use of any proceeds of
the Loans or of the acceptance and purchase of Bankers' Acceptances. No
Borrower will, nor will it permit any Subsidiary to, use any of the proceeds of
the U.S. Borrowings, Canadian Borrowings and Norwegian Borrowings to purchase
or carry any "margin stock" (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) that would cause any Lender to be in
violation of Regulation U or any Borrower to be in violation of Regulation X of
the Board of Governors of the Federal Reserve System.
CURRENCY FLUCTUATIONS.
Not later than (i) 1:00 p.m. (Calgary, Alberta time) on each Calculation Date,
the Canadian Administrative Agent shall determine the Exchange Rate with
respect to Canadian Dollars as of such Calculation Date and deliver to the U.S.
Administrative Agent in writing the U.S. Dollar equivalent amount of such
determination on or prior to the Reset Date (as defined below), and (ii) 1:00
p.m. (Oslo, Norway time) on each Calculation Date, the Norwegian Administrative
Agent shall determine the Exchange Rate with respect to Norwegian Krone as of
such Calculation Date and deliver to the U.S. Administrative Agent in writing
the U.S. Dollar equivalent amount of such determination on or prior to the
Reset Date (as defined below). The Exchange Rate so determined shall become
effective on the second Business Day immediately following the relevant
Calculation Date (a "Reset Date") and shall remain effective until the next
succeeding Calculation Date.
Not later than 4:00 p.m. (Houston, Texas time) on each Reset Date, the U.S.
Administrative Agent shall consult with the Canadian Administrative Agent and
Norwegian Administrative Agent regarding the Exchange Rate and the
Administrative Agents shall determine the Total Canadian Exposure, Total
Norwegian Exposure and the aggregate U.S. Obligations.
If, on any Reset Date or on the date of any reallocation of the U.S.
Commitments, Canadian Commitments and Norwegian Commitments pursuant to Section
2.5(c) hereof, the sum of the aggregate U.S. Obligations, the Total Canadian
Exposure and the Total Norwegian Exposure exceeds the aggregate of all of the
U.S. Commitments, Canadian Commitments and Norwegian Commitments by five
percent (5%) or more, then (i) the Administrative Agents shall give notice
thereof to the Lenders and Borrowers and (ii) the Borrowers shall within three
Business Days thereafter, repay or prepay Loans (or provide Cover for Letter of
Credit Liabilities or Bankers' Acceptance Liabilities) in accordance with this
Agreement in an
45
aggregate principal amount sufficient to reduce the sum of the aggregate U.S.
Obligations, the Total Canadian Exposure and the Total Norwegian Exposure to
the aggregate of all of the U.S. Commitments, Canadian Commitments and
Norwegian Commitments.
If, on any Reset Date prior to the Termination Date, the Total Canadian
Exposure exceeds the aggregate of all of the Canadian Commitments by five
percent (5%) or more, then (i) the Canadian Administrative Agent shall give
notice thereof to Canadian Borrowers and the Canadian Lenders and (ii) within
three Business Days thereafter, Canadian Borrowers shall repay or prepay
Canadian Loans (or provide Cover for Letter of Credit Liabilities relating to
Canadian Letters of Credit or Bankers' Acceptance Liabilities) in accordance
with this Agreement in an aggregate principal amount such that, after giving
effect thereto, the Total Canadian Exposure shall not exceed the aggregate of
all of the Canadian Commitments.
If, on any Reset Date prior to the Termination Date, the Total Norwegian
Exposure exceeds the aggregate of all of the Norwegian Commitments by five
percent (5%) or more, then (i) the Norwegian Administrative Agent shall give
notice thereof to Norwegian Borrower and the Norwegian Lenders and (ii) within
three Business Days thereafter, Norwegian Borrower shall repay or prepay
Norwegian Loans (or provide Cover for Letter of Credit Liabilities relating to
Norwegian Letters of Credit Liabilities) in accordance with this Agreement in
an aggregate principal amount such that, after giving effect thereto, the Total
Norwegian Exposure shall not exceed the aggregate of all of the Norwegian
Commitments.
INCREASE OF COMMITMENT.
On any date occurring on or prior to the Maturity Date, the Borrowers may
increase the aggregate of the Revolving Commitments by an amount not greater
than US$25,000,000 (any such increase, a "Commitment Increase"), provided,
however, that the aggregate Revolving Commitments shall not at any time exceed
US$200,000,000, by (i) requesting one or more of the existing U.S. Lenders,
Canadian Lenders or Norwegian Lenders (each of which, in its sole discretion,
may determine whether and to what degree to participate in such Commitment
Increase) to increase its Commitment (an "Increasing Lender") and/or (ii) by
designating one or more other banks or other financial institutions reasonably
acceptable to the U.S. Administrative Agent (an "Additional Lender") to become
a party to this Agreement. The sum of the increases in the Revolving
Commitments of the Increasing Lenders plus the Revolving Commitments of the
Additional Lenders upon giving effect to the Commitment Increase shall not in
the aggregate exceed the amount of the Commitment Increase. Borrower shall
provide prompt notice of any proposed Commitment Increase pursuant to this
Section 2.12 to the U.S. Administrative Agent, Canadian Administrative Agent,
and Norwegian Administrative Agent and the Lenders, provided however, that the
number of requests for a Commitment Increase shall be limited to two requests,
each of which shall be in an amount equal to at least $10,000,000. The
Borrowers shall allocate each Commitment Increase to the Canadian Commitments,
Norwegian Commitments and the U.S. Commitments as set forth in such notice, and
the sum of the resulting increase in the Canadian Commitments, Norwegian
Commitments and the U.S. Commitments shall equal the amount of such Commitment
Increase.
46
Any Commitment Increase shall become effective upon (i) the receipt by the U.S.
Administrative Agent of (A) an agreement pertaining to such Commitment Increase
in the form attached hereto as Exhibit M signed by Borrowers and each
Increasing Lender, if any, (B) an agreement pertaining to such Commitment
Increase in the form attached hereto as Exhibit N signed by Borrowers and each
Additional Lender, if any, and (C) such evidence of appropriate authorization
on the part of each Borrower with respect to the Commitment Increase and such
opinions of counsel for each Borrower with respect to the Commitment Increase
as the U.S. Administrative Agent may reasonably request, (ii) the funding by
each Increasing Lender and Additional Lender of the U.S. Borrowings, Canadian
Borrowings and Norwegian Borrowings, to be made by each such U.S. Lender,
Canadian Lender and Norwegian Lender, as the case may be, and each Increasing
Lender and each Additional Lender, if applicable described in subsection (c)
below and (iii) receipt by the Administrative Agents of a certificate (the
statements contained in which shall be true) of a Responsible Officer of the
respective Borrower stating that both before and after giving effect to such
Commitment Increase (A) no Event of Default has occurred and is continuing, and
(B) all representations and warranties made by each Borrower in this Agreement
are true and correct in all material respects, unless such representation or
warranty relates to an earlier date.
Upon the effective date of any Commitment Increase, each Increasing Lender and
each Additional Lender shall provide funds to the applicable Administrative
Agent, in the manner described in Section 3.1. The funds so provided by any
U.S. Lender, Canadian Lender and Norwegian Lender, as the case may be, shall
be deemed to be a U.S. Borrowing, Canadian Borrowing or Norwegian Borrowing, as
the case may be, made by such U.S. Lender, Canadian Lender and Norwegian Lender
on the date of such Commitment Increase, and in an amount such that after
giving effect to such Commitment Increase and the U.S. Borrowing, Canadian
Borrowing or Norwegian Borrowing made on the date of such Commitment Increase,
each U.S. Borrowing, Canadian Borrowing or Norwegian Borrowing as the case may
be, outstanding hereunder shall consist of U.S. Borrowing, Canadian Borrowing
or Norwegian Borrowing as the case may be, made by the U.S. Lender, Canadian
Lender and Norwegian Lender ratably in accordance with each U.S. Lender,
Canadian Lender and Norwegian Lender's U.S. Commitment, Canadian Commitment and
Norwegian Commitment, respectively. Notwithstanding any provision contained
herein to the contrary, from and after the date of any Commitment Increase and
the making of any U.S. Borrowing, Canadian Borrowing or Norwegian Borrowing as
the case may be, on such date pursuant to subsection (b) above, all
calculations and payments of interest on the U.S. Borrowing, Canadian Borrowing
or Norwegian Borrowing as the case may be, shall take into account the actual
Revolving Commitment of each U.S. Lender, Canadian Lender and Norwegian Lender
and the actual principal amount outstanding of each U.S. Borrowing, Canadian
Borrowing or Norwegian Borrowing made by such U.S. Lender, Canadian Lender and
Norwegian Lender, as the case may be, during the relevant period of time.
EXTENSION OF MATURITY DATE.
Not earlier than 120 days prior to the Maturity Date, then in effect, nor later
than 60 days prior to the Maturity Date, then in effect, the Borrowers may, upon
notice to the
47
Administrative Agents (which shall promptly notify the Lenders), request a
one-year extension of the Maturity Date then in effect. This option may be
exercised only twice. Within 30 days of delivery of such notice, each Lender
shall notify the applicable Administrative Agent whether or not it consents to
such extension (which consent may be given or withheld in such Lender's sole
and absolute discretion). Any Lender not responding within the above time
period shall be deemed not to have consented to such extension. The
Administrative Agents shall promptly notify each Borrower and the Lenders of
the Lenders' responses.
The Maturity Date shall be extended only if Lenders holding at least 66-2/3% of
the Aggregate Commitments (the "Consenting Lenders") have consented thereto. If
so extended, the Maturity Date, as to the Consenting Lenders, shall be extended
to the same date in the following year, effective as of the Maturity Date then
in effect (such extended Maturity Date being the "Extension Maturity Date").
All non-consenting Lenders ("Non-Consenting Lenders") shall continue to be
subject to the Maturity Date in effect prior to the effectiveness of the
Extension Maturity Date (such existing Maturity Date being the "Present
Maturity Date"). The Administrative Agents and the Borrowers shall promptly
confirm to the Lenders such extension and the Extension Maturity Date. As a
condition precedent to such extension, the Borrowers shall pay or prepay all
Loans, interest thereon and all other amounts due each Non-Consenting Lender on
or before the Present Maturity Date (and each Non-Consenting Lender shall, as
of the Present Maturity Date, be released of all obligations (i) with respect
to Letter of Credit Liabilities and U.S. Swing Line Borrowings, and (ii) to
reimburse draws or fund participations under Section 2.3, and shall deliver to
the Administrative Agents a certificate of each Borrower (in sufficient copies
for each Lender) signed by a Responsible Officer of such Borrower (i)
certifying and attaching the resolutions adopted by such Borrower approving or
consenting to such extension and (ii) certifying that, before and after giving
effect to such extension, (A) the representations and warranties contained in
Article VI and the other Loan Documents are true and correct in all material
respects, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date, and except that for purposes
of this Section 2.13, the representations and warranties contained in
subsections (a) and (b) of Section 6.2 shall be deemed to refer to the most
recent statements furnished pursuant to subsections (a) and (b), respectively,
of Section 7.2, and (B) no Default exists.
This Section shall supersede any provisions in Section 4.5 or 11.5 to the
contrary.
The Borrowers shall prepay any Loans outstanding on the Extension Maturity Date
(and pay any additional amounts required pursuant to Section 3.3(c)(iv)) or
borrow additional amounts to the extent necessary to keep outstanding Loans
ratable with any revised and new U.S. Commitment, Canadian Commitment or
Norwegian Commitment, as the case may be, of all Consenting Lenders effective
as of the Extension Maturity Date.
BORROWINGS, PREPAYMENTS AND INTEREST OPTIONS
BORROWINGS. The applicable Borrower shall give the applicable Administrative
Agent notice of each borrowing to be made hereunder as provided in Section 4.3
hereof and the applicable Administrative Agent shall promptly notify each
applicable Lender of such request. Not later
48
than 12:00 noon Houston, Texas time (in the case of U.S. Loans), 1:00 p.m.
Calgary, Alberta time (in the case of Canadian Loans which are not same day
fundings and Bankers' Acceptances) or 2:00 p.m. Calgary, Alberta time (in the
case of Canadian Loans which are same day fundings) or 12:00 noon Oslo, Norway
time (in the case of Norwegian Loans) on the date specified for each such
borrowing hereunder, each applicable Lender shall make available the amount of
the Loan, if any, to be made by it on such date and/or the proceeds of the
acceptance and purchase of any Bankers' Acceptances, if any, to be so accepted
and purchased by it on such date to the applicable Administrative Agent at its
Principal Office, in immediately available funds, for the account of the
applicable Borrower. Such amounts received by the applicable Administrative
Agent will be held in an account maintained by the applicable Borrower with the
applicable Administrative Agent. The amounts so received by the applicable
Administrative Agent shall, subject to the terms and conditions of this
Agreement, be made available to the applicable Borrower by wiring or otherwise
transferring, in immediately available funds, such amount to an account
designated by the applicable Borrower and approved by the applicable
Administrative Agent.
PREPAYMENTS.
OPTIONAL PREPAYMENTS. Except as provided in Section 3.3 hereof, each Borrower
shall have the right to prepay, on any Business Day, in whole or in part,
without the payment of any penalty or fee, any of the Obligations (other than
Obligations relating to Bankers' Acceptances) at any time or from time to time,
provided that the applicable Borrower shall give the applicable Administrative
Agent notice of each such prepayment as provided in Section 4.3 hereof. Each
partial optional prepayment on a Loan shall be in an amount equal to at least
US$3,000,000 or any an integral multiple of US$1,000,000 in excess thereof (in
respect of Loans denominated in Dollars) or C$3,000,000 or any an integral
multiple of C$1,000,000 in excess thereof (in respect of Loans denominated in
Canadian Dollars) or NOK30,000,000 or any integral multiple of NOK10,000,000 in
excess thereof (in respect of Loans denominated in Norwegian Krone) and shall
include accrued interest up to such date of prepayment. Bankers' Acceptances
may not be prepaid.
INTEREST PAYMENTS. Accrued and unpaid interest on the unpaid principal balance
of the Notes shall be due and payable on the Interest Payment Dates.
PAYMENTS AND INTEREST ON REIMBURSEMENT OBLIGATIONS. Each Borrower will pay to
the applicable Administrative Agent for the account of each applicable Lender
the amount of each Reimbursement Obligation with respect to such Borrower on
the date on which the applicable Administrative Agent notifies the applicable
Borrower of the date and amount of the applicable payment by the Issuer of any
drawing under a Letter of Credit or payment of any Bankers' Acceptance on
maturity. The amount of any Reimbursement Obligation may, if the applicable
conditions precedent specified in Sections 5.1 and 5.2 hereof have been
satisfied, be paid with the proceeds of Loans or, in the case of Canadian
Obligations, of the acceptance and purchase of Bankers' Acceptances. Subject to
Section 11.7 hereof, each Borrower will pay to the applicable Administrative
Agent for the account of each applicable Lender interest on any Reimbursement
Obligation at (i) at the applicable Base Rate (with respect to Reimbursement
Obligations denominated in Dollars) or at the Canadian Prime
49
Rate (with respect to Reimbursement Obligations denominated in Dollars) plus
the applicable Margin Percentage from the date such Reimbursement Obligation
arises until the date five (5) Business Days thereafter and (ii) at the
applicable Default Rate thereafter until the same is paid in full.
INTEREST; ETC.
INTEREST; OPTIONS AVAILABLE. The outstanding principal balance of the U.S. Note
shall bear interest at the applicable Base Rate; the outstanding principal
balance of the Canadian Dollar Notes shall bear interest at the Canadian Prime
Rate and the outstanding principal balance of the Norwegian Krone Note shall
bear interest at the Norwegian Prime Rate; provided, that (1) all past due
amounts, both principal and accrued interest, for any of the Notes, shall bear
interest at the Default Rate, (2) upon the direction of the Majority Lenders,
while any Default or Event of Default has occurred or is continuing, all
Obligations shall bear interest at the Default Rate and (3) subject to the
provisions hereof, the U.S. Borrower, each Canadian Borrower and Norwegian
Borrower shall have the option of having all or any portion of the principal
balances of its Notes (other than the Canadian Dollar Notes or Norwegian Krone
Notes) from time to time outstanding bear interest at a Eurodollar Rate and
Norwegian Borrower shall also have the option of having all or any portion of
the principal balances of its Notes from time to time outstanding bear interest
at a Eurokrone Rate. The records of Administrative Agents and each of the
Lenders with respect to Interest Options, Interest Periods and the amounts of
Loans to which they are applicable shall be binding and conclusive, absent
manifest error. Interest on the amount of each advance against the Notes shall
be computed on the amount of that advance and from the date it is made.
Notwithstanding anything in this Agreement to the contrary, for the full term
of the Notes the interest rate produced by the aggregate of all sums paid or
agreed to be paid to any holder of a Note for the use, forbearance or detention
of the debt evidenced thereby (including all interest on the Notes at the
Stated Rate plus the Additional Interest) shall not exceed the Ceiling Rate, if
any, for such holder.
DESIGNATION AND CONVERSION. Each Borrower shall have the right to designate or
convert its Interest Options in accordance with the provisions hereof. Provided
no Event of Default has occurred and is continuing and subject to the last
sentence of Section 3.3(a) and the provisions of Section 3.3(c), the U.S.
Borrower and either Canadian Borrower may elect to have a Eurodollar Rate apply
or continue to apply to all or any portion of the principal balance of its
Notes (other than the Canadian Dollar Notes) and Norwegian Borrower may elect
to have a Eurokrone Rate apply or continue to apply to all or any portion of
the principal balance of its Notes. Each change in Interest Options shall be a
conversion of the rate of interest applicable to the specified portion of the
Loans, but such conversion shall not change the respective outstanding
principal balances of the applicable Notes. The Interest Options shall be
designated or converted in the manner provided below:
The applicable Borrower shall give the applicable Administrative Agent
telephonic notice, promptly confirmed by a Rate Designation Notice (and the
applicable Administrative Agent shall promptly inform each applicable Lender
thereof). Each such telephonic and written notice shall specify the amount of
the Loan which is the subject of the designation, if any; the amount of
borrowings into which such borrowings are to be converted or for which an
Interest Option is
50
designated; the proposed date for the designation or conversion and the
Interest Period or Periods, if any, selected by the applicable Borrower. Such
telephonic notice shall be irrevocable and shall be given to the applicable
Administrative Agent no later than the applicable Rate Designation Date.
No more than five (5) LIBOR Borrowings shall be in effect with respect to the
U.S. Loans at any time, no more than 3 LIBOR Borrowings shall be in effect
with respect to the Canadian Loans at any time and no more than 5 LIBOR
Borrowings shall be in effect with respect to the Norwegian Loans at any time.
No single LIBOR Borrowing may include both U.S. Loans and Canadian Loans or
Norwegian Loans.
Each designation or conversion of a LIBOR Borrowing shall occur on a LIBOR
Business Day.
Each designation or conversion of a NIBOR Borrowing shall occur on a NIBOR
Business Day.
Except as provided in Section 3.3(c) hereof, no LIBOR Borrowing shall be
converted to a Base Rate Borrowing or another LIBOR Borrowing on any day other
than the last day of the applicable Interest Period.
Each request for a Base Rate Borrowing shall be in the amount at least equal to
the lesser of (1) the unutilized portion of the U.S. Commitments or (2)
US$500,000 and an integral multiple of US$100,000 in excess thereof.
Each request for a LIBOR Borrowing shall be in the amount at least equal to the
lesser of (1) the unutilized portion of the U.S. Commitments, Canadian
Commitments or Norwegian Commitments, as the case may be or (2) US$5,000,000
and an integral multiple of US$1,000,000 in excess thereof.
Each request for a NIBOR Borrowing shall be in the amount at least equal to the
lesser of (1) the unutilized portion of the Norwegian Commitments or (2)
NOK50,000,000 and an integral multiple of NOK10,000,000 in excess thereof.
Each designation of an Interest Option with respect to the U.S. Notes shall
apply to all of the U.S. Notes ratably in accordance with their respective
outstanding principal balances. Each designation of an Interest Option with
respect to the Canadian Notes shall apply to all of the Canadian Notes ratably
in accordance with their respective outstanding principal balances. If any
Lender assigns an interest in any of its Notes when any LIBOR Borrowing is
outstanding with respect thereto, then such assignee shall have its ratable
interest in such LIBOR Borrowing.
The entire outstanding principal balance of the Canadian Dollar Notes shall
bear interest at the Canadian Prime Rate. The entire outstanding principal
balance of the Banker's Acceptances shall bear interest at the Applicable BA
Discount Rate.
The entire outstanding balance of the Norwegian Krone Notes shall bear interest
at the Norwegian Prime Rate.
SPECIAL PROVISIONS APPLICABLE TO LIBOR BORROWINGS AND NIBOR BORROWINGS.
Options Unlawful. If the adoption of any applicable Legal Requirement after the
Effective Date or any change after the Effective Date in any applicable Legal
Requirement or in the interpretation or administration thereof by any
Governmental Authority or compliance by any Lender with any request or directive
(whether or not having the force of law) issued after the Effective Date by any
central bank or other Governmental Authority shall at any time make it unlawful
or impossible for any Lender to permit the establishment of or to maintain any
LIBOR Borrowing or NIBOR Borrowing, the commitment of such Lender to establish
or maintain such LIBOR Borrowing or
51
NIBOR Borrowing shall forthwith be suspended and the applicable Borrower shall
forthwith, upon demand by the applicable Administrative Agent to such Borrower,
(1) convert the LIBOR Borrowing or NIBOR Borrowing of such Lender with respect
to which such demand was made to a Base Rate Borrowing; (2) pay all accrued and
unpaid interest to date on the amount so converted; and (3) pay any amounts
required to compensate such Lender for any additional cost or expense which
such Lender may incur as a result of such adoption of or change in such Legal
Requirement or in the interpretation or administration thereof and any Funding
Loss which any Lender may incur as a result of such conversion. If, when any
Administrative Agent so notifies any Borrower, such Borrower has given a Rate
Designation Notice specifying a LIBOR Borrowing or NIBOR Borrowing but the
selected Interest Period has not yet begun, as to the applicable Lender such
Rate Designation Notice shall be deemed to be of no force and effect, as if
never made, and the balance of the Loans made by such Lender specified in such
Rate Designation Notice shall bear interest at the Base Rate until a different
available Interest Option shall be designated in accordance herewith.
Increased Cost of Borrowings. If the adoption after the Effective Date of any
applicable Legal Requirement or any change after the Effective Date in any
applicable Legal Requirement or in the interpretation or administration thereof
by any Governmental Authority or compliance by any Lender with any request or
directive (whether or not having the force of law) issued after the Effective
Date by any central bank or Governmental Authority shall at any time as a
result of any portion of the principal balances of the Notes being maintained
on the basis of a Eurodollar Rate or Eurokrone Rate, as the case may be:
subject any Lender to any Taxes (to the extent not covered by Section 4.1(d)),
on or from any payment due under any LIBOR Borrowing or NIBOR Borrowing or
other amount due hereunder, other than income, revenue and franchise taxes of
the United States or its political subdivisions or such other jurisdiction in
which the applicable Lender has its principal office or applicable lending
office; or
change the basis of taxation of payments due from any Borrower to any Lender
under any LIBOR Borrowing or NIBOR Borrowing (otherwise than by a change in the
rate of franchise taxes or taxation based on income or revenues of such
Lender); or
impose, modify, increase or deem applicable any reserve requirement (excluding
that portion of any reserve requirement included in Section 3.3(g) or Section
3.3(h)), special deposit requirement or similar requirement (including, but not
limited to, state law requirements and Regulation D) against assets of any
Lender, or against deposits with any Lender, or against loans made by any
Lender, or against any other funds, obligations or other Property owned or held
by any Lender; or
impose on any Lender any other condition regarding any LIBOR Borrowing or NIBOR
Borrowing (other than any condition generally applicable to all Loans);
and the result of any of the foregoing is to increase the cost to any Lender of
agreeing to make or of making, renewing or maintaining such LIBOR Borrowing or
NIBOR Borrowing, or reduce the amount of principal or interest received by any
Lender, then, within 15 Business Days after demand by any Administrative Agent
(accompanied by a statement setting forth in reasonable detail the applicable
Lender's basis therefor), the applicable Borrower shall pay to the applicable
Administrative Agent additional amounts which shall compensate each Lender for
such increased cost or reduced amount. The determination by any Lender of the
amount of any such increased
52
cost, increased reserve requirement or reduced amount shall be conclusive and
binding, absent manifest error. Each Borrower shall have the right, if it
receives from any Administrative Agent any notice referred to in this
paragraph, upon three Business Days' notice to the applicable Administrative
Agent (which shall notify each affected Lender), either (i) to repay in full
(but not in part) any borrowing with respect to which such notice was given,
together with any accrued interest thereon, or (ii) to convert the LIBOR
Borrowing or NIBOR Borrowing which is the subject of the notice to a Base Rate
Borrowing; provided, that any such repayment or conversion shall be accompanied
by payment of (x) the amount required to compensate each Lender for the
increased cost or reduced amount referred to in the preceding paragraph; (y)
all accrued and unpaid interest to date on the amount so repaid or converted,
and (z) any Funding Loss which any Lender may incur as a result of such
repayment or conversion. Each Lender will notify the applicable Borrower
through the applicable Administrative Agent of any event occurring after the
date of this Agreement which will entitle such Lender to compensation pursuant
to this Section as promptly as practicable after it obtains knowledge thereof
and determines to request such compensation, and (if so requested by the
applicable Borrower through the applicable Administrative Agent) will designate
a different lending office of such Lender for the applicable LIBOR Borrowing or
NIBOR Borrowing or will take such other action as the applicable Borrower may
reasonably request if such designation or action is consistent with the
internal policy of such Lender and legal and regulatory restrictions, will
avoid the need for, or reduce the amount of, such compensation and will not, in
the sole opinion of such Lender, be disadvantageous to such Lender.
Inadequacy of Pricing and Rate Determination. If, for any reason with respect to
any Interest Period, any applicable Administrative Agent (or, in the case of
clause 2 below, Lenders having 50% or more of the Aggregate Commitments relating
to the affected Tranche) shall have determined (which determination shall be
conclusive and binding upon each Borrower, absent manifest error) that:
the applicable Administrative Agent is unable through its customary general
practices to determine any applicable Eurodollar Rate or Eurokrone Rate, as the
case may be, or
any applicable Eurodollar Rate or Eurokrone Rate, as the case may be, will not
adequately and fairly reflect the cost to the applicable Lenders of making and
maintaining such LIBOR Borrowing or NIBOR Borrowing hereunder for any proposed
Interest Period, then the applicable Administrative Agent shall give the
applicable Borrower notice thereof and thereupon, (A) any Rate Designation
Notice previously given by such Borrower designating the applicable LIBOR
Borrowing or NIBOR Borrowing which has not commenced as of the date of such
notice from any Administrative Agent shall be deemed for all purposes hereof to
be of no force and effect, as if never given, and (B) until the applicable
Administrative Agent shall notify such Borrower that the circumstances giving
rise to such notice from such Administrative Agent no longer exist, each Rate
Designation Notice requesting the applicable Eurodollar Rate or Eurokrone Rate,
as the case may be, shall be deemed a request for a Base Rate Borrowing, and any
applicable LIBOR Borrowing or NIBOR Borrowing then outstanding shall be
converted, without any notice to or from any Borrower, upon the termination of
the Interest Period then in effect with respect to it, to a Base Rate Borrowing.
Funding Losses. Each Borrower shall indemnify each applicable Lender against
and hold each applicable Lender harmless from any Funding Loss relating to
Loans to such Borrower or relating
53
to Bankers' Acceptances requested by such Borrower. This indemnity shall
survive the payment of the Notes. A certificate of any Lender (explaining in
reasonable detail the amount and calculation of the amount claimed) as to any
additional amounts payable pursuant to this paragraph submitted to the
applicable Borrower shall be conclusive and binding upon such Borrower, absent
manifest error.
FUNDING OFFICES; ADJUSTMENTS AUTOMATIC; CALCULATION YEAR. Any Lender may, if it
so elects, fulfill its obligation as to any LIBOR Borrowing or NIBOR Borrowing
by causing a branch or affiliate of such Lender to make such Loan and may
transfer and carry such Loan at, to or for the account of any branch office or
affiliate of such Lender; provided, that in such event for the purposes of this
Agreement such Loan shall be deemed to have been made by such Lender and the
obligation of the applicable Borrower to repay such Loan shall nevertheless be
to such Lender and shall be deemed held by it for the account of such branch or
affiliate. Without notice to any Borrower or any other Person, each rate
required to be calculated or determined under this Agreement shall
automatically fluctuate upward and downward in accordance with the provisions
of this Agreement. Interest based on the Base Rate, Canadian Prime Rate or any
applicable Prime Rate shall be computed on the basis of the actual number of
days elapsed in a year consisting of 365 or 366 days, as the case may be. All
other interest required to be calculated or determined under this Agreement
including LIBOR Borrowings and NIBOR Borrowings shall be computed on the basis
of the actual number of days elapsed in a year consisting of 360 days, unless
the Ceiling Rate would thereby be exceeded, in which event, to the extent
necessary to avoid exceeding the Ceiling Rate, the applicable interest shall be
computed on the basis of the actual number of days elapsed in the applicable
calendar year in which such interest accrued.
FUNDING SOURCES. Notwithstanding any provision of this Agreement to the
contrary, each Lender shall be entitled to fund and maintain its funding of all
or any part of the Loans in any manner it sees fit, it being understood,
however, that for the purposes of this Agreement all determinations hereunder
shall be made as if each Lender had actually funded and maintained each LIBOR
Borrowing or NIBOR Borrowing during each Interest Period through the purchase
of deposits having a maturity corresponding to such Interest Period and bearing
an interest rate equal to the Eurodollar Rate or Eurokrone Rate, as the case
may be, for such Interest Period.
ADDITIONAL INTEREST ON LIBOR ADVANCES. If any Lender is required by any Legal
Requirement to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, and if as a result thereof
there is an increase in the cost to such Lender of agreeing to make or making,
funding or maintaining any LIBOR Borrowing, then the Borrower that borrowed
such Borrowing shall from time to time, upon demand by such Lender (with a copy
of such demand to the U.S. Administrative Agent), pay to the U.S.
Administrative Agent for the account of such Lender additional amounts, as
additional interest hereunder, sufficient to compensate such Lender for such
increased cost.
ADDITIONAL INTEREST ON NIBOR ADVANCES. Without duplication of Section 3.3(c)
hereof, if by reason of: (A) changes in any existing law, rule or regulation,
or (B) the adoption of any new law, rule or regulation, or (C) any change in
the interpretation or administration of (A) or (B)
54
above by any governmental authority, or (D) compliance with any directive or
request from any governmental authority (whether or not having the force of
law):
the Norwegian Lender incurs a cost as a result of it having entered into this
Agreement and/or performing its obligations hereunder; or
(i) there is an increase in the cost to the Norwegian
Lender of maintaining or funding a NIBOR Borrowing; or
(ii) the Norwegian Lender becomes liable for any new
taxes (other than on net income) calculated by reference to any NIBOR
Borrowing; or
the Norwegian Lender becomes subject to any new or modified capital adequacy or
similar requirements which will have the effect of increasing the amount of
capital required or expected to be maintained by the Norwegian Lender based on
the Norwegian Lender's obligations hereunder;
or
the Norwegian Lender's
effective return hereunder is reduced in any other manner;
then any such cost, liability or reduction of return as referred to in the
preceding paragraphs (i)-(v) shall be payable by Norwegian Borrower upon request
by the Norwegian Lender either in the form of an increased margin or in the form
of an indemnification. The Norwegian Lender shall give Norwegian Borrower notice
within a reasonable time of its intention to claim compensation under this
Clause and it shall specify the form and amount of such compensation. The
Norwegian Lender's determination of the amount of compensation to be made under
this Clause shall, absent manifest error, be conclusive. Norwegian Borrower
shall be entitled to prepay the NIBOR Borrowing in accordance with the terms of
the Agreement. In such event Norwegian Borrower shall nevertheless compensate
the Norwegian Lender for such requested indemnification for the period up to and
including the date of prepayment.
In the event that it shall be unlawful for the Norwegian Lender to make
available or maintain a NIBOR Borrowing then the Norwegian Lender's obligations
to lend in Krone shall terminate and all amounts owing by Norwegian Borrower to
the Norwegian Lender in Krone shall become due and payable on demand, in each
case to the extent necessary to not violate any law.
Notwithstanding anything in this Section 3.3 to the contrary, under no
circumstances will Norwegian Borrower be jointly and/or severally liable for
any obligation or liability of U.S. Borrower or Canadian Borrowers, or both.
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS, ETC.
PAYMENTS; TAX FORMS.
Except to the extent otherwise provided herein, all payments of principal,
interest, Reimbursement Obligations and other amounts to be made by any
Borrower hereunder, under the Notes and under the other Loan Documents shall be
made in (iii) with respect to Bankers' Acceptance Liabilities and Canadian
Prime Loans, Canadian Dollars (iv) with respect to NIBOR Borrowings, in
Norwegian Krone and (v) in all other cases, in Dollars, without setoff or
counterclaim and in same day funds, to the applicable Administrative Agent at
its Principal Office (or in the case of a successor U.S. Administrative Agent,
55
Canadian Administrative Agent or Norwegian Administrative Agent, as the case
may be, at the principal office of such successor Administrative Agent, as
applicable, not later than 12:00 noon Houston, Texas time, 1:00 p.m. Calgary,
Alberta time or 12:00 noon Oslo, Norway time, as applicable), each such payment
made after such time on such due date to be deemed to have been made on the
next succeeding Business Day.
Each Borrower shall, at the time of making each payment hereunder, under any
Note or under any other Loan Document, specify to the applicable Administrative
Agent Obligations payable by such Borrower hereunder or thereunder to which
such payment is to be applied. Each payment received by any Administrative
Agent hereunder, under any Note or under any other Loan Document for the
account of a Lender shall be paid promptly to such Lender (subject, however, to
Section 2.8), in immediately available funds. If any Administrative Agent fails
to send to any Lender the applicable amount by the close of business on the
date any such payment is received by such Administrative Agent if such payment
is received prior to 11:00 a.m. Houston, Texas time (in the case of any payment
to a U.S. Lender), 12:00 noon Calgary, Alberta time (in the case of any
payment to a Canadian Lender) or 12:00 noon Oslo, Norway time (in the case of
any payment to a Norwegian Lender) (or on the next succeeding Business Day with
respect to payments which are received after such time), such Administrative
Agent shall pay to the applicable Lender interest on such amount from such date
at a rate of interest per annum equal to (i) in respect of Obligations which
are denominated in Dollars, the Federal Funds Rate and (ii) in respect of
Canadian Obligations which are denominated in Canadian Dollars, the CDOR Rate
and (iii) in respect of Norwegian Obligations which are denominated in
Norwegian Krone, the NIBOR Rate.
If the due date of any payment hereunder or under any other Loan Document falls
on a day which is not a Business Day, the due date for such payments (except as
otherwise provided in the definition of "Interest Period" set forth in Section
1.1 hereof) shall be extended to the next succeeding Business Day and interest
shall be payable for any principal so extended for the period of such extension.
(vi) Each U.S. Lender which is organized under the laws of a
jurisdiction outside the United States shall, on the day of
the initial borrowing from each such U.S. Lender hereunder and
from time to time thereafter if requested by U.S. Borrower or
U.S. Administrative Agent, provide U.S. Administrative Agent
and U.S. Borrower with the forms prescribed by the Internal
Revenue Service of the United States certifying as to such
U.S. Lender's status for purposes of determining exemption
from, or reduction of, United States withholding taxes with
respect to all payments to be made to such U.S. Lender
hereunder or other documents satisfactory to such U.S. Lender,
U.S. Borrower and U.S. Administrative Agent indicating that
all payments to be made to such U.S. Lender hereunder are not
subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty adopted
after such U.S. Lender became a U.S. Lender. Unless U.S.
Borrower and U.S. Administrative Agent shall have received
such forms or such documents indicating that payments to such
U.S. Lender hereunder are not subject to United States
withholding tax or are subject to such tax at a rate reduced
by an
56
applicable tax treaty adopted after such U.S. Lender became
a U.S. Lender, U.S. Borrower and U.S. Administrative Agent
shall be entitled to withhold taxes from such payments at the
applicable statutory rate.
Except as provided in 4.1(d)(i), all payments by any Borrower hereunder or under
any other Loan Document shall be made free and clear of and without deduction
for or on account of any present or future income, stamp, or other taxes, fees,
duties, withholding or other charges of any nature whatsoever imposed by any
taxing authority excluding in the case of each Lender taxes imposed on or
measured by its income or revenue or franchise taxes imposed by the United
States or its political subdivisions or such other jurisdiction in which the
applicable Lender is organized or has its principal office or through which it
acts for purposes of this Agreement (such non-excluded items being hereinafter
referred to as "Taxes").
If the making of such payments by any Borrower is prohibited by law unless such
a tax, levy, impost or other charge is deducted or withheld therefrom, the
applicable Borrower shall pay to the relevant Administrative Agent, on the date
of each such payment, such additional amounts (without duplication of any
amounts required to be paid by the applicable Borrower hereunder) as may be
necessary in order that net amounts received by the Lenders after such deduction
or withholding shall equal the amounts which would have been received if such
deduction or withholding were not required. If as a result of any change in law
(or the interpretation thereof) after the date that the applicable Lender became
a "Lender" under this Agreement any withholding or deduction from any payment to
be made to, or for the account of, a Lender by any Borrower hereunder or under
any other Loan Document is required in respect of any Taxes pursuant to any
applicable law, rule, or regulation, then such Borrower will (i) pay to the
relevant authority the full amount required to be so withheld or deducted; (ii)
to the extent available, promptly forward to the applicable Administrative Agent
an official receipt or other documentation reasonably satisfactory to such
Administrative Agent evidencing such payment to such authority; and (iii) pay to
the applicable Administrative Agent, for the account of each affected Lender,
such additional amount or amounts as are necessary to ensure that the net amount
actually received by such Lender will equal the full amount such Lender would
have received had no such withholding or deduction been required. Each Lender
shall determine such additional amount or amounts payable to it (which
determination shall, in the absence of manifest error, be conclusive and binding
on each Borrower). If a Lender becomes aware that any such withholding or
deduction from any payment to be made by any Borrower hereunder or under any
other Loan Document is required, then such Lender shall promptly notify the
applicable Administrative Agent and the applicable Borrower thereof stating the
reasons therefor and the additional amount required to be paid under this
Section. To the extent that any such withholding or deduction results from the
failure of a Lender to provide a form required by Section 4.1(d)(i) hereof
(unless such failure is due to some prohibition under applicable Legal
Requirements), the applicable Borrower shall have no obligation to pay the
additional amount required by clause (iii) above. Anything in this Section
notwithstanding, if any Lender elects to require payment by any Borrower of any
material amount under this Section, the applicable Borrower may, within 60 days
after the date of receiving notice thereof and so long as no Default shall have
occurred and be continuing, elect to terminate such Lender as a party to this
Agreement; provided that, concurrently with such termination the applicable
Borrower shall (i) if the Administrative Agents and each of the other Lenders
shall consent, pay that Lender all principal, interest and fees and other
amounts owed to such Lender through such date of termination or (ii) have
arranged for another financial institution approved
57
by the Administrative Agents (such approval not to be unreasonably withheld) as
of such date, to become a substitute Lender for all purposes under this
Agreement in the manner provided in Section 11.6; provided further that, prior
to substitution for any Lender, the applicable Borrower shall have given
written notice to the Administrative Agents of such intention and the Lenders
shall have the option, but no obligation, for a period of 60 days after receipt
of such notice, to increase their Commitments in order to replace the affected
Lender in lieu of such substitution.
Each Canadian Lender is a resident of Canada for purposes of the Income Tax Act
(Canada).
Each Norwegian Lender is a resident of Norway for purposes of the Norwegian Act
relating to Taxation on Property and Income of 26th March 1999 No. 14.
PRO RATA TREATMENT. Except to the extent otherwise provided herein:(a) each
borrowing from the Lenders under Section 2.1 hereof shall be made (x) in the
case of Canadian Loans, ratably from the Canadian Lenders in accordance with
their respective Canadian Commitments, (y) in the case of U.S. Loans, ratably
from the U.S. Lenders in accordance with their respective U.S. Commitments and
(z) in the case of Norwegian Loans, ratably from the Norwegian Lenders in
accordance with their respective Norwegian Commitments; (b) each payment of
Facility Fees shall be made for the account of the Lenders, and each
termination or reduction of the U.S. Commitment, Canadian Commitment or
Norwegian Commitment, as the case may be, of the applicable Lenders under
Section 2.5 hereof shall be applied, pro rata, according to such Lenders'
respective U.S. Commitment and/or Canadian Commitment and/or Norwegian
Commitment, as the case may be; (c) each payment by any Borrower of principal
of or interest on the Loans or any Bankers' Acceptance shall be made to the
applicable Administrative Agent for the account of the applicable Lenders pro
rata in accordance with the respective unpaid principal amounts of the Loans
held by or Bankers' Acceptances accepted by such Lenders, and (d) the
applicable Lenders (other than the applicable Issuer) shall purchase from the
applicable Issuer participations in each Letter of Credit to the extent of
their respective U.S. Commitment Percentages, Canadian Commitment Percentages
or Norwegian Commitment Percentages, as the case may be.
CERTAIN ACTIONS, NOTICES, ETC. Notices to the applicable Administrative Agent
of any termination or reduction of Commitments and of borrowings and optional
prepayments of Loans and requests for issuances of Letters of Credit shall be
irrevocable and shall be effective only if received by the applicable
Administrative Agent not later than 11:00 a.m. Houston, Texas time (in the case
of U.S. Loans and U.S. Letters of Credit), 12:00 noon Calgary, Alberta time (in
the case of Canadian Loans and Canadian Letters of Credit) or 12:00 noon Oslo,
Norway time (in the case of Norwegian Loans and Norwegian Letters of Credit) on
the number of Business Days prior to the date of the relevant termination,
reduction, borrowing and/or prepayment specified below:
Prior Notice Number of Business Days
------------ -----------------------
Termination or Reduction of Commitments 5
Loan repayment 1
Swing Line Borrowings same day
Base Rate Borrowings 1
Canadian Prime Loans same day
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Letter of Credit issuance 3
Selection of a Eurodollar Rate 3
Selection of a Eurokrone Rate 4
NIBOR Borrowing 4
LIBOR Borrowing 3
Each such notice of termination or reduction shall specify the amount
of the applicable Commitment to be terminated or reduced. Each such notice of
borrowing or prepayment shall specify the amount of the Loans to be borrowed or
prepaid and the date of borrowing or prepayment (which shall be a Business Day).
The applicable Administrative Agent shall promptly notify the affected Lenders
of the contents of each such notice.
NON-RECEIPT OF FUNDS BY ANY ADMINISTRATIVE AGENT. Unless the applicable
Administrative Agent shall have been notified by a Lender or a Borrower (the
"Payor") prior to the date on which such Lender is to make payment to such
Administrative Agent of the proceeds of a Loan (or funding of a drawing under a
Letter of Credit or reimbursement with respect to any drawing under a Letter of
Credit or funding of a payment under a Bankers' Acceptance or reimbursement with
respect to any payment under a Bankers' Acceptance) to be made by it hereunder
or the applicable Borrower is to make a payment to such Administrative Agent for
the account of one or more of the Lenders, as the case may be (such payment
being herein called the "Required Payment"), which notice shall be effective
upon receipt, that the Payor does not intend to make the Required Payment to
such Administrative Agent, the applicable Administrative Agent may assume that
the Required Payment has been made and may, in reliance upon such assumption
(but shall not be required to), make the amount thereof available to the
intended recipient on such date and, if the Payor has not in fact made the
Required Payment to such Administrative Agent, the recipient of such payment
(or, if such recipient is the beneficiary of a Letter of Credit, the applicable
Borrower and, if such Borrower fails to pay the amount thereof to the applicable
Administrative Agent forthwith upon demand, the applicable Lenders ratably in
proportion to their respective Commitment Percentages) shall, on demand, pay to
such Administrative Agent the amount made available by such Administrative
Agent, together with interest thereon in respect of the period commencing on the
date such amount was so made available by such Administrative Agent until the
date Administrative Agent recovers such amount at a rate of interest per annum
equal to (i) in respect of Obligations which are denominated in Dollars, the
Federal Funds Rate, (ii) in respect of Canadian Obligations which are
denominated in Canadian Dollars, the CDOR Rate and (iii) in respect of Norwegian
Obligations which are denominated in Norwegian Krone , the NIBOR Rate.
SHARING OF PAYMENTS, ETC. If any of the U.S. Lender, Canadian Lender or
Norwegian Lender (the U.S. Lenders collectively, Canadian Lenders collectively
and Norwegian Lenders collectively, each a class) shall obtain payment of any
principal of or interest on any Loan made by it under this Agreement, on any
Reimbursement Obligation or on any other Obligation then due to such Lender
hereunder, through the exercise of any right of set-off (including, without
limitation, any right of setoff or Lien granted under Section 9.2 hereof),
59
banker's Lien, counterclaim or similar right, or otherwise, it shall promptly
purchase from the other Lenders of such class participations in the Loans made
by such other Lenders, or Reimbursement Obligations or other Obligations held by
such other Lenders in such amounts, and make such other adjustments from time to
time as shall be equitable to the end that all the Lenders of such class shall
share the benefit of such payment (net of any expenses which may be incurred by
such Lender in obtaining or preserving such benefit) pro rata in accordance with
the unpaid Obligations then due to each of them. To such end all the Lenders of
a class shall make appropriate adjustments among themselves (by the resale of
participations sold or otherwise) if such payment is rescinded or must otherwise
be restored. Each Borrower agrees, to the fullest extent it may effectively do
so under applicable law, that any Lender so purchasing a participation in the
Loans made, or Reimbursement Obligations or other Obligations held, by other
Lenders may exercise all rights of set-off, bankers' Lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans, Reimbursement Obligations or other Obligations in
the amount of such participation. Nothing contained herein shall require any
Lender to exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of any Borrower.
REPLACEMENT OF LENDERS. Under any circumstances set forth herein providing that
the Borrowers shall have the right to replace a Lender as a party to this
Agreement, the Borrowers may, upon notice to such Lender and the U.S.
Administrative Agent, replace such Lender by causing such Lender to assign its
U.S. Commitment, Canadian Commitment or Norwegian Commitment, as the case may
be, pursuant to Section 11.6 to one or more other Lenders procured by the
Borrowers. The Borrowers shall (x) pay in full all principal, interest, fees and
other amounts owing to such Lender through the date of replacement (including
any amounts payable pursuant to Section 3.3(c)), (y) provide appropriate
assurances and indemnities (which may include letters of credit) to the
applicable Issuing Bank and the U.S. Swing Line Lender, as the case may be, as
each may reasonably require with respect to any continuing obligation to fund
participation interests in any Letters of Credit Liabilities or any U.S. Swing
Line Borrowings or Canadian Swing Line Borrowings, as the case may be, then
outstanding, and (z) release such Lender from its obligations under the Loan
Documents. Any Lender being replaced shall execute and deliver an Assignment and
Acceptance with respect to such Lender's U.S. Commitment, Canadian Commitment or
Norwegian Commitment, as the case may be, and outstanding Loans and
participations in Letters of Credit Liabilities and U.S. Swing Line Borrowings,
as the case may be.
CONDITIONS PRECEDENT
INITIAL LOANS, LETTERS OF CREDIT AND BANKERS' ACCEPTANCES. The obligation of
each Lender or each Issuer to make its initial Loans or issue or participate in
the initial Letter of Credit hereunder or to accept and purchase its initial
Bankers' Acceptance hereunder (whichever shall first occur) is subject to the
following conditions precedent, each of which shall have been fulfilled or
waived to the satisfaction of the Lenders:
60
AUTHORIZATION AND STATUS. Administrative Agents shall have received from the
appropriate Governmental Authorities certified copies of the Organizational
Documents (other than by-laws) of each Obligor, and evidence satisfactory to
Administrative Agents of all action taken by each Obligor authorizing the
execution, delivery and performance of the Loan Documents and all other
documents related to this Agreement to which it is a party (including, without
limitation, a certificate of the secretary of each such party which is a
corporation setting forth the resolutions of its Board of Directors authorizing
the transactions contemplated thereby and attaching a copy of its bylaws),
together with such certificates as may be appropriate to demonstrate the
qualification and good standing of and payment of taxes by each Obligor in the
jurisdiction of its organization and in each other jurisdiction where the
failure to qualify would have a Material Adverse Effect.
INCUMBENCY. Each Obligor shall have delivered to Administrative Agents a
certificate in respect of the name and signature of each of the officers (i) who
is authorized to sign on its behalf the applicable Loan Documents related to any
Loan, Letter of Credit and Bankers' Acceptance and (ii) who will, until replaced
by another officer or officers duly authorized for that purpose, act as its
representative for the purposes of signing documents and giving notices and
other communications in connection with any Loan, Letter of Credit and Bankers'
Acceptance. Each Administrative Agent and each Lender may conclusively rely on
such certificates until they receive notice in writing from the applicable
Obligor to the contrary.
NOTES. Administrative Agents shall have received the appropriate Notes of
Borrowers for each Lender, duly completed and executed.
LOAN DOCUMENTS. Each Obligor shall have duly executed and delivered the Loan
Documents to which it is a party (in such number of copies as Administrative
Agents shall have requested). Each such Loan Document shall be in substantially
the form furnished to the Lenders prior to their execution of this Agreement,
together with such changes therein as Administrative Agents may approve.
FEES AND EXPENSES. Borrowers shall have paid to Administrative Agents all unpaid
fees in the amounts previously agreed upon in writing between any Borrower and
any Administrative Agent; and shall have in addition paid to Administrative
Agents all amounts payable under Section 11.3 hereof, on or before the date of
this Agreement, except for amounts which the applicable Administrative Agent, in
its sole discretion, agrees may be paid at a later date.
INSURANCE. Borrowers shall have delivered to Administrative Agents evidence
satisfactory to Administrative Agents regarding the existence of all insurance
required to be maintained by each Obligor by this Agreement.
OPINIONS OF COUNSEL. Administrative Agents shall have received such opinions of
counsel to Obligors as the Administrative Agents shall reasonably request with
respect to Obligors and the Loan Documents.
61
CONSENTS. Administrative Agents shall have received evidence satisfactory to the
Lenders that all material consents of each Governmental Authority and of each
other Person, if any, reasonably required in connection with (a) the Loans,
Letters of Credit and Bankers' Acceptances and (b) the execution, delivery and
performance of this Agreement and the other Loan Documents have been
satisfactorily obtained.
NO MATERIAL ADVERSE EFFECT. No Material Adverse Effect shall have occurred
since December 31, 2001.
OTHER DOCUMENTS. Administrative Agents shall have received such other documents
consistent with the terms of this Agreement and relating to the transactions
contemplated hereby as Administrative Agents may reasonably request.
PAYMENT OF CERTAIN OUTSTANDING INDEBTEDNESS. Administrative Agent shall have
received evidence satisfactory to Administrative Agent that all existing
Borrowed Money Indebtedness owing under the September 25, 1997 Loan Agreement
among U.S. Borrower and certain of its Affiliates, Xxxxx Fargo, as Co-Agent, and
certain other Administrative Agents and lenders (the "Existing Credit Facility")
shall have been paid in full (or will be paid in full out of the initial advance
hereunder) and that all rights to further advances under the Existing Credit
Facility shall have been terminated.
ALL LOANS, LETTERS OF CREDIT AND BANKERS' ACCEPTANCES. The obligation of each
Lender to make any Loan to be made by it hereunder or to issue or participate in
any Letter of Credit or to accept and purchase any Bankers' Acceptance is
subject to (a) the accuracy, in all material respects, on the date of such Loan
or such issuance or such acceptance and purchase of all representations and
warranties of each Obligor contained in this Agreement and the other Loan
Documents, except to the extent that such representations and warranties,
specifically refer to an earlier date, in which case they were true and correct
in all material respects as of such earlier date; (b) the applicable
Administrative Agent shall have received the following, all of which shall be
duly executed: (1) a Request for Extension of Credit as to the Loan, Letter of
Credit or Bankers' Acceptance, as the case may be, by the time and on the
Business Day specified under Section 4.3 hereof, (2) in the case of a Letter of
Credit, an Application; (c) no Default or Event of Default shall have occurred
and be continuing; (d) the making of such Loan or the issuance of such Letter of
Credit or the acceptance and purchase of such Bankers' Acceptance shall not be
illegal or prohibited by any Legal Requirement, (e) Borrowers shall have paid
all fees and expenses of the type described in Section 11.3 hereof and all other
fees owed to any Administrative Agent or any Lender under the Loan Documents
which are due and payable, in each case, prior to or on the date of such Loan or
such issuance or such acceptance and purchase and (f) no Material Adverse Effect
shall have occurred since the date of the audited financial statements that were
delivered to the Lenders on or prior to the Effective Date pursuant to Section
6.2 hereof. The submission by any Borrower of a Request for Extension of Credit
shall be deemed to be a representation and warranty that the conditions
precedent to the applicable Loan or Letter of Credit or Bankers' Acceptance have
been satisfied.
REPRESENTATIONS AND WARRANTIES
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To induce the Lenders to enter into this Agreement and to make the
Loans and issue or participate in the Letters of Credit and accept and purchase
Bankers' Acceptances, Parent, and with respect to its own individual entity
only, U.S. Borrower, Canadian Borrowers and Norwegian Borrower, represents and
warrants (such representations and warranties to survive any investigation and
the making of the Loans and the issuance of any Letters of Credit and the
acceptance and purchase of any Bankers' Acceptances) to the Lenders and
Administrative Agents as follows:
ORGANIZATION. Each Obligor (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization; (b) has all
necessary power and authority to conduct its business in all material respects
as presently conducted, and (c) is duly qualified to do business and in good
standing in the jurisdiction of its organization and in all jurisdictions in
which the failure to so qualify would reasonably be expected to have a Material
Adverse Effect.
FINANCIAL STATEMENTS. Borrowers have furnished to the Lenders: (i) audited
financial statements (including a balance sheet) as to Parent which fairly
present in all material respects, in accordance with GAAP, the consolidated
financial condition and the results of operations of Parent as at the end of the
fiscal year ended December 31, 2001, (ii) unaudited financial statements
(including a balance sheet) as to each Canadian Borrower and Norwegian Borrower
which fairly present in all material respects, in accordance with GAAP, the
consolidated financial condition and the results of operations of the applicable
Person as at the end of the fiscal year ended December 31, 2001, and (iii)
unaudited financial statements (including a balance sheet) as to Parent and as
to each Canadian Borrower and Norwegian Borrower which fairly present in all
material respects, in accordance with GAAP (subject to year-end adjustments and
the absence of notes), the consolidated financial condition and the results of
operations of the applicable Person as at the end of the fiscal quarter ended
March 31, 2002. No events, conditions or circumstances have occurred from the
date that such financial statements were delivered to the Lenders through the
Effective Date which would cause such financial statements to be misleading in
any material respect. There are no material instruments or liabilities which
should in accordance with GAAP be reflected in such December 31, 2001 financial
statements which are not so reflected. For purposes of this Section 6.2 and
Section 7.2 hereof, financial statements as to each Canadian Borrower shall be
prepared in accordance with generally accepted accounting principles in effect
in Canada, and "GAAP" shall be deemed modified accordingly and financial
statements as to Norwegian Borrower shall be prepared in accordance with
generally accepted accounting principles in effect in Norway and "GAAP" shall be
deemed modified accordingly.
ENFORCEABLE OBLIGATIONS; AUTHORIZATION. The Loan Documents are legal, valid and
binding obligations of each applicable Obligor, enforceable in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency and
other similar laws and judicial decisions affecting creditors' rights generally
and by general equitable principles. The execution, delivery and performance of
the Loan Documents by the applicable Obligor (a) have all been duly authorized
by all necessary action; (b) are within the power and authority of each
applicable Obligor; (c) do not and will not contravene or violate any Legal
Requirement applicable to any applicable Obligor or the Organizational Documents
of any applicable Obligor, the contravention or violation of which would
reasonably be expected to have a Material Adverse Effect; (d) do not and will
not result in the breach of, or constitute a
63
default under, any material agreement or instrument by which any Obligor or any
of its Property may be bound, and (e) do not and will not result in the
creation of any Lien upon any Property of any Obligor, except as expressly
contemplated herein. All necessary permits, registrations and consents for such
making and performance have been obtained.
OTHER DEBT. No Obligor is in default in the payment of any other Borrowed Money
Indebtedness or under any agreement, mortgage, deed of trust, security agreement
or lease to which it is a party and which default would reasonably be expected
to have a Material Adverse Effect.
LITIGATION. There is no litigation or administrative proceeding, to the
knowledge of any executive officer of any Obligor, pending or threatened
against, nor any outstanding judgment, order or decree against, any Obligor
before or by any Governmental Authority which does or would reasonably be
expected to have a Material Adverse Effect. No Obligor is in default with
respect to any judgment, order or decree of any Governmental Authority where
such default would have a Material Adverse Effect.
TAXES. Each Obligor has filed all material tax returns required to have been
filed and paid all taxes shown thereon to be due, except those for which
extensions have been obtained and those which are being contested in good faith.
REGULATIONS T, U AND X. None of the proceeds of any Loan or proceeds from the
acceptance and purchase of Bankers' Acceptances will be used for the purpose of
purchasing or carrying directly or indirectly any margin stock or for any other
purpose that would constitute this transaction a "purpose credit" within the
meaning of Regulations T, U and X of the Board of Governors of the Federal
Reserve System, as any of them may be amended from time to time.
SUBSIDIARIES. As of the Effective Date, (i) Parent has no Subsidiaries other
than as set forth on Schedule 6.8 hereto, and (ii) the percentage of the issued
and outstanding equity interests in each applicable Subsidiary which is owned,
as of the Effective Date, by Parent or one or more of its Subsidiaries is set
forth on Schedule 6.8 hereto.
NO UNTRUE OR MISLEADING STATEMENTS. No representation or warranty made by any
Obligor in any Loan Document or in any document, instrument or other writing
furnished to the Lenders by or on behalf of any Obligor in connection with the
transactions contemplated in any Loan Document contains at the time so furnished
any untrue material statement of fact or omits in light of the circumstances
under which they were made to state any such fact (of which any executive
officer of any Obligor has knowledge) necessary to make the representations,
warranties and other statements contained herein or in such other document,
instrument or writing not misleading in any material respect.
ERISA. With respect to each Plan, each Borrower and each member of the
Controlled Group have fulfilled their obligations, including obligations under
the minimum funding standards of ERISA and the Code and are in compliance in all
material respects with the provisions of ERISA and the Code. No event has
occurred which could result in a liability of any Borrower or any member of the
Controlled Group to the PBGC or a Plan (other than to make contributions in the
ordinary course) that would reasonably be expected to have a Material Adverse
Effect. There have not been any nor are there now existing any events or
conditions that would cause any Lien provided under ERISA to attach to any
Property of any
64
Borrower or any member of the Controlled Group. Unfunded Liabilities as of the
date hereof do not exceed US$5,000,000. No non-exempt "prohibited transaction"
has occurred with respect to any Plan.
INVESTMENT COMPANY ACT. No Obligor is an investment company within the meaning
of the Investment Company Act of 1940, as amended, or acting on behalf of any
Person which is an investment company, within the meaning of said Act.
PUBLIC UTILITY HOLDING COMPANY ACT. No Obligor is an "affiliate" or a
"subsidiary company" of a "public utility company," or a "holding company," or
an "affiliate" or a "subsidiary company" of a "holding company," as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended.
COMPLIANCE. Each Obligor is in compliance with all Legal Requirements applicable
to it, except to the extent that the failure to comply therewith would not
reasonably be expected to have a Material Adverse Effect.
ENVIRONMENTAL MATTERS. Each Obligor has, to the best knowledge of their
respective executive officers, obtained and maintained in effect all
Environmental Permits (or the applicable Person has initiated the necessary
steps to transfer the Environmental Permits into its name or obtain such
permits), the failure to obtain which would reasonably be expected to have a
Material Adverse Effect. Each Obligor and its Properties, business and
operations have been and are, to the best knowledge of their respective
executive officers, in compliance with all applicable Requirements of
Environmental Law and Environmental Permits the failure to comply with which
would reasonably be expected to have a Material Adverse Effect. Each Obligor and
its Properties, business and operations are not subject to any (A) Environmental
Claims or (B), to the best knowledge of their respective executive officers
(after making reasonable inquiry of the personnel and records of their
respective Corporations), Environmental Liabilities, in either case direct or
contingent, arising from or based upon any act, omission, event, condition or
circumstance occurring or existing on or prior to the date hereof which would
reasonably be expected to have a Material Adverse Effect. None of the officers
of any Obligor has received any notice of any violation or alleged violation of
any Requirements of Environmental Law or Environmental Permit or any
Environmental Claim in connection with its Properties, liabilities, condition
(financial or otherwise), business or operations which would reasonably be
expected to have a Material Adverse Effect. Neither U.S. Borrower, Canadian
Borrowers nor Norwegian Borrower knows of any event or condition with respect to
currently enacted Requirements of Environmental Laws presently scheduled to
become effective in the future with respect to any of the Properties of any
Obligor which would reasonably be expected to have a Material Adverse Effect,
for which the applicable Obligor has not made good faith provisions in its
business plan and projections of financial performance.
AFFIRMATIVE COVENANTS
Parent, U.S. Borrower, Canadian Borrowers and Norwegian Borrower each
covenants and agrees with Administrative Agents and the Lenders that prior to
the termination of this Agreement, it will do or cause to be done, and with
respect to the Parent only, cause each other Obligor (unless
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limited by the language of the applicable provision to less than all of the
Obligors) or Material Subsidiary, to do or cause to be done, each and all of
the following:
SECTION 7.1 TAXES, EXISTENCE, REGULATIONS, PROPERTY, ETC. At all times (a) pay
when due all material taxes and governmental charges of every kind upon it or
against its income, profits or Property, unless and only to the extent that the
same shall be contested diligently in good faith and adequate reserves in
accordance with GAAP have been established therefor; (b) do all things
necessary to preserve its existence, qualifications, rights and franchises in
all jurisdictions where such failure to qualify would reasonably be expected to
have a Material Adverse Effect; (c) comply with all applicable Legal
Requirements (including without limitation Requirements of Environmental Law)
in respect of the conduct of its business and the ownership of its Property,
the noncompliance with which would reasonably be expected to have a Material
Adverse Effect; and (d) cause its Property to be protected, maintained and kept
in good repair and make all replacements and additions to such Property as may
be reasonably necessary to conduct its business properly and efficiently.
FINANCIAL STATEMENTS AND INFORMATION. Furnish, as applicable, to each Lender:
Quarterly Financials. As soon as available and in any event not later than 45
days after the end of each quarter of each fiscal year of the Parent, the
unaudited Consolidated balance sheets of Parent, Canadian Borrowers and
Norwegian Borrower as of the end of such quarter and the related unaudited
statements of income and cash flows for the period commencing at the end of the
previous quarter and ending with the end of such quarter, together with a Form
10Q and a Compliance Certificate duly executed by a Responsible Officer;
Annual Financials. As soon as available and in any event not later than 90 days
after the end of each fiscal year of the Parent, an unqualified (except for
qualifications relating to changes in accounting principles or practices
reflecting changes in generally accepted accounting principles and required or
approved by the Parent's independent certified public accountants) audit report
for such year for the Parent and its Subsidiaries, including therein audited
Consolidated balance sheets of the Parent, Canadian Borrowers and Norwegian
Borrower as of the end of such fiscal year and the related Consolidated
statements of income and cash flows of the Parent for such fiscal year, and the
corresponding figures as at the end of, and for, the preceding fiscal year
together with a Form 10K and a Compliance Certificate duly executed by a
Responsible Officer;
Annual Projections. As soon as available and in any event not later than 90
days after the end of each fiscal year of the Parent (commencing with fiscal
year 2003), the Consolidated annual projections of the Parent for such year in
reasonable detail and duly certified by a senior financial officer of the
Parent as the projections presented or to be presented to the Parent's Board of
Directors for their review;
Other Borrowed Money Indebtedness. As any Lender through the applicable
Administrative Agent may from time to time request, detail about any other
Borrowed Money Indebtedness of Parent and its Subsidiaries, including, without
limitation, any bilateral facilities between Parent or any of its Subsidiaries
and any bank, financial institution or other lender.
Other Information. (i) Such other information respecting the business or
Properties, or the condition or operations, financial or otherwise, of Parent,
or any of its Subsidiaries, including financial statements set forth in
Sections 7.2(i) and (ii) hereof, as any Lender through the applicable
Administrative Agent may from time to time reasonably request, (ii) upon
request by any
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Lender, copies of all proxy material, reports and other information which each
Borrower or any of its Subsidiaries sends to or files with the United States
Securities and Exchange Commission as any Lender through the applicable
Administrative Agent may from time to time reasonably request and (iii) as soon
as possible and in any event within 5 Business Days after the occurrence of
each Default known to a Responsible Officer of any Borrower, a statement of a
Responsible Officer of such Borrower (but without need for duplication if the
same Default is known by a Responsible Officer of more than one Borrower)
setting forth the details of such Default and the actions, if any, such
Borrower (or if applicable, the Parent or a Subsidiary of the Parent) has
taken, if any, and proposes to take with respect thereto.
INSPECTION. Permit each Administrative Agent and each Lender upon 3 days' prior
notice (unless a Default or an Event of Default has occurred which is
continuing, in which case no prior notice is required) to inspect its Property,
to examine its files, books and records, except privileged communication with
legal counsel and classified governmental material, and make and take away
copies thereof, and to discuss its affairs with its officers and accountants,
all during normal business hours and at such intervals and to such extent as
any Administrative Agent may reasonably desire. Notwithstanding the foregoing,
unless a Default or an Event of Default has occurred, no more than two
inspections pursuant to this Section 7.3 may occur within any consecutive
twelve month period.
FURTHER ASSURANCES. Promptly execute and deliver, at the Borrowers' expense, as
the case may be, any and all other and further instruments which may be
reasonably requested by any Administrative Agent or Lender through the
applicable Administrative Agent, to cure any defect in the execution and
delivery of any Loan Document in order to effectuate the transactions
contemplated by the Loan Documents.
BOOKS AND RECORDS. Maintain books of record and account which permit financial
statements to be prepared in accordance with GAAP.
INSURANCE. Maintain insurance (including business interruption insurance) with
such insurers, on such of its Property, with responsible companies in such
amounts, with such deductibles and against such risks as are usually carried by
owners of similar businesses and properties in the same general areas in which
the applicable Obligor operates or as any Administrative Agent may otherwise
reasonably require, and furnish each Administrative Agent satisfactory evidence
thereof promptly upon request. Each Administrative Agent shall be provided with
a certificate of the insurer that the insurance required by this Section may not
be canceled, reduced or affected in any material manner without thirty (30)
days' prior written notice to Administrative Agents.
NOTICE OF CERTAIN MATTERS. Give the Administrative Agents for delivery to each
Lender written notice of the following promptly after any executive officer of
U.S. Borrower, either Canadian Borrower or Norwegian Borrower shall become aware
of the same:
the issuance by any court or governmental agency or authority of any injunction,
order or other restraint prohibiting, or having the effect of prohibiting, the
performance of this Agreement, any other Loan Document, or the making of the
Loans or the acceptance and purchase of Bankers' Acceptances or the initiation
of any litigation, or any claim or
67
controversy which would reasonably be expected to result in the initiation of
any litigation, seeking any such injunction, order or other restraint;
the filing or commencement of any action, suit or proceeding, whether at law or
in equity or by or before any court or any Governmental Authority involving
claims with a specified amount in excess of US$3,000,000 against any Obligor or
which may reasonably be expected to result in a Default hereunder; and
any Event of Default or Default, specifying the nature and extent thereof and
the action (if any) which is proposed to be taken with the respect thereto.
Borrowers will also notify the Administrative Agents in writing at
least 30 days prior to the date that any Obligor changes its name or the
location of its chief executive office or principal place of business or the
place where it keeps its books and records.
CAPITAL ADEQUACY. If any Lender shall have determined that the adoption after
the Effective Date or effectiveness after the Effective Date (whether or not
previously announced) of any applicable law, rule, regulation or treaty
regarding capital adequacy, or any change therein after the Effective Date, or
any change in the interpretation or administration thereof after the Effective
Date by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any request or directive after the Effective Date regarding capital
adequacy (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency has or would have the effect of
reducing the rate of return on such Lender's capital as a consequence of its
obligations hereunder, under the Letters of Credit, the Notes or other
Obligations held by it to a level below that which such Lender could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies with respect to capital adequacy) by an amount deemed by
such Lender to be material, then from time to time, upon satisfaction of the
conditions precedent set forth in this Section, after demand by such Lender
(with a copy to the appropriate Administrative Agent) as provided below, pay
(subject to Section 11.7 hereof) to such Lender such additional amount or
amounts as will compensate such Lender for such reduction. The certificate of
any Lender setting forth such amount or amounts as shall be necessary to
compensate it and the basis thereof and reasons therefor shall be delivered as
soon as practicable to U.S. Borrower, Canadian Borrowers or Norwegian Borrower,
as the case may be, and shall be conclusive and binding, absent manifest error.
U.S. Borrower or Canadian Borrower, as the case may be, shall pay the amount
shown as due on any such certificate within 15 Business Days after the delivery
of such certificate. In preparing such certificate, a Lender may employ such
assumptions and allocations of costs and expenses as it shall in good xxxxx xxxx
reasonable and may use any reasonable averaging and attribution method.
ERISA INFORMATION AND COMPLIANCE. Promptly furnish to the Administrative Agents
for delivery to the Lenders: (i) immediately upon receipt, a copy of any notice
of complete or partial withdrawal liability under ERISA and any notice from the
PBGC under ERISA of an intent to terminate or appoint a trustee to administer
any Plan, (ii) if requested by any Administrative Agent or any Lender through
its Administrative Agent, promptly after the filing thereof with the United
States Secretary of Labor or the PBGC or the Internal Revenue
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Service or any Governmental Authority having jurisdiction under Applicable
Canadian Pension Legislation, copies of each annual and other report with
respect to each Plan or any trust created thereunder, (iii) immediately upon
becoming aware of the occurrence of any "reportable event," as such term is
used under ERISA for which the disclosure requirements have not been waived, or
of any non-exempt "prohibited transaction," as such term is defined in Section
4975 of the Code, in connection with any Plan or any trust created thereunder,
a written notice signed by the President or the principal financial officer of
the applicable Borrower or the applicable member of the Controlled Group
specifying the nature thereof, what action the applicable Borrower or the
applicable member of the Controlled Group is taking or proposes to take with
respect thereto, and, when known, any action taken by the PBGC, the Internal
Revenue Service, the Department of Labor or any other applicable Governmental
Authority with respect thereto, (iv) promptly after the filing or receiving
thereof by any Borrower or any member of the Controlled Group of any notice of
the institution of any proceedings or other actions which may result in the
termination of any Plan, and (v) each request for waiver of the funding
standards or extension of the amortization periods required by ERISA or Section
412 of the Code promptly after the request is submitted by Borrower or any
member of the Controlled Group to the Secretary of the Treasury, the Department
of Labor, the Internal Revenue Service or any other applicable Governmental
Authority. To the extent required under applicable statutory funding
requirements, each Borrower will fund, or will cause the applicable member of
the Controlled Group to fund, all pension liabilities as they are incurred
under the provisions of all Plans from time to time in effect, and comply with
all applicable provisions of ERISA, in each case, except to the extent that
failure to do the same would not reasonably be expected to have a Material
Adverse Effect. Each Borrower covenants that it shall and shall cause each
member of the Controlled Group to (1) make contributions to each Plan in a
timely manner and in an amount sufficient to comply with the contribution
obligations under such Plan and the minimum funding standards requirements of
ERISA; (2) prepare and file in a timely manner all notices and reports required
under the terms of ERISA including but not limited to annual reports; and (3)
pay in a timely manner all required PBGC premiums, in each case, except to the
extent that failure to do the same would not reasonably be expected to have a
Material Adverse Effect.
CONDUCT OF BUSINESS. Carry on and conduct, and cause each Subsidiary to carry on
and conduct, its business in such a manner that the business of the Parent and
its Subsidiaries, taken as a whole, is conducted in substantially the same
manner as it is presently conducted and in Permitted Businesses and do all
things necessary to remain duly incorporated or organized, validly existing and
(to the extent such concept applies to such entity) in good standing as a
domestic corporation, partnership or limited liability company in its
jurisdiction of incorporation or organization, as the case may be, and maintain
all requisite authority to conduct its business in each jurisdiction in which
its business is conducted, in each case, except to the extent that failure to do
so would not reasonably be expected to have a Material Adverse Effect.
USE OF PROCEEDS. Use the proceeds of the Loans for any lawful corporate purpose
not expressly prohibited in this Agreement including, without limitation, (i) to
refinance certain existing indebtedness of the Borrowers, and (ii) other working
capital and general corporate
69
purposes of the Parent, Borrowers and their respective Subsidiaries. Neither
any Administrative Agent nor any Lender shall have any responsibility as to the
use of any proceeds of the Loans or of the acceptance and purchase of Bankers'
Acceptances. Each Borrower will not, nor will it permit any Subsidiary to, use
any of the proceeds of the U.S. Borrowings, Canadian Borrowings and Norwegian
Borrowings to purchase or carry any "margin stock" (as defined in Regulation U)
that would cause any Lender to be in violation of Regulation U or any Borrower
to be in violation of Regulation X of the Board of Governors of the Federal
Reserve System.
PARI PASSU. Cause Obligations under this Agreement and the other Loan Documents
to rank at least pari passu with and, if other senior Borrowed Money
Indebtedness is secured (other than by Permitted Liens), be equally and ratably
secured as all such other senior Borrowed Money Indebtedness of the Borrowers
and the Guarantor except for Borrowed Money Indebtedness secured by Permitted
Liens; provided, however, that, nothing contained in this Section 7.12 is
intended to permit any Liens or Borrowed Money Indebtedness not otherwise
specifically provided for in this Agreement or to waive any rights with respect
to any prohibitions on any Liens or Borrowed Money Indebtedness contained in
this Agreement.
NEGATIVE COVENANTS
Parent, U.S. Borrower, Canadian Borrowers and Norwegian Borrower each
covenants and agrees with Administrative Agents and the Lenders that prior to
the termination of this Agreement it will not, and with respect to the Parent
only, will not suffer or permit any other Obligor or Material Subsidiary to, do
any of the following:
BORROWED MONEY INDEBTEDNESS. Create, incur, suffer or permit to exist, or assume
or guarantee, directly or indirectly, or become or remain liable with respect to
any Borrowed Money Indebtedness, whether direct, indirect, absolute, contingent
or otherwise, except the following:
Borrowed Money Indebtedness under this Agreement and the other Loan Documents
and Borrowed Money Indebtedness secured by Liens permitted by Section 8.2
hereof;
Borrowed Money Indebtedness existing on the date of this Agreement and listed on
Exhibit K and Exhibit O attached hereto, and all renewals, extensions and
replacements of any of the foregoing;
Interest Rate Risk Indebtedness;
other Borrowed Money Indebtedness not exceeding, in the aggregate for Parent and
each of its Subsidiaries, at any one time outstanding (excluding Borrowed Money
Indebtedness permitted by Section 8.1(a), (b), (c) or (e)), an amount equal to
20% of the Consolidated Net Worth of Parent and its Subsidiaries as of the last
day of the immediately preceding fiscal quarter; provided, however, at the time
such other Borrowed Money Indebtedness is incurred:
Parent and its Subsidiaries shall be in compliance, on a pro forma basis after
giving effect to such incurrence of additional Borrowed Money Indebtedness, with
the covenants contained in this
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Article VIII recomputed as of the last day of the most recently ended fiscal
quarter of the Parent and its Subsidiaries as if the transaction in question
had occurred on the first day of each relevant period for testing such
compliance;
The financial covenants of additional Borrowed Money Indebtedness are no more
restrictive or burdensome than the covenants set forth in this Agreement;
There shall be no required scheduled amortization of such additional Borrowed
Money Indebtedness at any time that any Obligations shall remain unpaid, any
Letter of Credit shall remain outstanding, or any Lender shall have any
applicable U.S. Commitment, Canadian Commitment or Norwegian Commitment
hereunder, except with respect to capital leases and indebtedness acquired or
assumed in connection with an Acquisition permitted hereunder; The Obligations
under this Agreement and the other Loan Documents of each Borrower and the
Guarantor shall rank at least pari passu with and, if other senior Borrowed
Money Indebtedness is secured (other than by Permitted Liens), be equally and
ratably secured with such other Borrowed Money Indebtedness; and provided
further that (x) capital leases and purchase money Borrowed Money Indebtedness
(indebtedness secured by Liens) shall not exceed 5% of the Parent and its
Subsidiaries Consolidated Net Worth at any time; and (y) the aggregate
principal amount of all Borrowed Money Indebtedness of Subsidiaries of the
Borrowers (excluding amounts available under the Increased Commitment) shall
not exceed 5% of the Parent and its Subsidiaries Consolidated Net Worth at any
time.
Notwithstanding the above, if the Parent's S&P rating and Xxxxx'x rating both
fall below BBB- or Baa3, respectively, then further Borrowed Money Indebtedness
shall not be permitted under this Section 8.1(d) without Majority Lender
approval, and in any event without limiting the foregoing under this Section,
each Borrower agrees that all Borrowed Money Indebtedness owing by Parent to
any of its Subsidiaries or owing by any Subsidiary of Parent to Parent or to
any other Subsidiary of Parent shall be subordinated in a manner acceptable to
the Majority Lenders and pursuant to documentation in Proper Form.
Borrowed Money Indebtedness secured by assets assumed in connection with an
Acquisition transaction permitted by Section 8.4 shall be permitted within 180
days from the consummation of the Acquisition; provided, however, that 180 days
after giving effect to the Acquisition, the additional Borrowed Money
Indebtedness incurred in the aggregate pursuant to an Acquisition, and
permitted only by this Section 8.1(e), shall not exceed 5% of the Parent and
its Subsidiaries Consolidated Net Worth at any time.
LIENS. Create or suffer to exist any Lien upon any of its Property now owned or
hereafter acquired except as provided for in Section 8.1 hereof; or in any
manner directly or indirectly sell, assign, pledge or otherwise transfer any of
its Accounts; provided, however, that any Obligor may create or suffer to exist
Permitted Liens.
CONTINGENT LIABILITIES. Directly or indirectly guarantee the performance or
payment of, or purchase or agree to purchase, or assume or contingently agree to
become or be secondarily liable in respect of, any obligation or liability of
any other Person except for (a) the endorsement of checks or other negotiable
instruments in the ordinary course of business; (b) obligations disclosed to the
Lenders in the financial statements delivered on or prior to the Effective Date
pursuant to Section 6.2 hereof (but not increases of such obligations after the
Effective Date); (c) guaranties of performance (but not of any Borrowed Money
71
Indebtedness) by a Subsidiary or the Parent provided in the ordinary course of
business, and (d) those liabilities permitted under Section 8.1 hereof.
MERGERS, CONSOLIDATIONS AND DISPOSITIONS OF ASSETS.
In any single transaction or series of transactions, directly or indirectly,
enter into any Acquisition, liquidate or dissolve, be a party to any merger or
consolidation or sell, lease or otherwise dispose of all or a Material Part of
its assets or stock, except that:
each Borrower or any of its Subsidiaries may enter into any Acquisition if upon
the consummation of any such Acquisition, (A) a Borrower or Subsidiary is the
surviving corporation to any such Acquisition (or the other Person will thereby
become a Subsidiary); (B) the Borrowers or such Subsidiary has the power and
authority under the pertinent agreement and under applicable Legal Requirements
to subject the assets of such acquired Person to the provisions of this
Agreement and such assets are so subjected to the provisions of this Agreement;
(C) such acquired Person engages in a business that does not result in a
violation of section 8.13 hereof; (D) no Default or Event of Event shall have
occurred and be continuing or would otherwise be existing as a result of such
merger, consolidation, or Acquisition; (E) Parent demonstrates pro-forma
compliance with all terms and conditions of this Agreement based on combined
historical results of the acquisition target and Parent, (F) the Parent's S&P
rating or Xxxxx'x rating shall be at least BBB- or Baa3 at the time of such
Acquisition; and (F) for an Acquisition with a purchase consideration of greater
than US$50,000,000, the Parent shall deliver to the U.S. Administrative Agent
audited financial statements (such audited financial statements shall not have
been completed greater than 12 months prior to the closing date of such
Acquisition), provided that, to the extent audited financial statements are not
available, Parent shall, at the election of the U.S. Administrative Agent cause
an audit to be performed or provide calculation of the Adjusted EBITDA by an
officer of the Parent; Borrowers and their Subsidiaries may make or effectuate
(A) sales, leases, transfers and dispositions of inventory in the ordinary
course of business, (B) sales, transfers or dispositions of assets which are
obsolete or are no longer in use and which are not significant to the
continuation of the business of the Parent and its Subsidiaries taken as a
whole; (C) dispositions of assets from Parent to its Subsidiaries or from the
Subsidiaries to the Parent or any other Subsidiary of the Parent; (D)
sale/leaseback transactions in an aggregate annual amount not greater than 15%
of Consolidated Net Worth, and (E) sales, leases or other dispositions of
Property that, together with all other Property of Parent and its Subsidiaries
previously sold, leased or disposed of (other than property disposed of in
clauses (A), (C) and (D) above, during the twelve month period ending when such
sale, lease, or disposition occurs) does not constitute a Material Part of the
Property of the Parent and its Subsidiaries;
Pledge, transfer or otherwise dispose of any equity interest in (or voting
rights in respect of ) any Subsidiary of Parent or any indebtedness of any
Subsidiary of Parent.
REDEMPTION, DIVIDENDS AND DISTRIBUTIONS. At any time: (a) redeem, retire or
otherwise acquire, directly or indirectly, any equity interest in any Obligor
other than Permitted Dividends or (b) make any distributions of any Property or
cash to the owner of any of the equity interests in any Obligor other than
Permitted Dividends.
TRANSACTIONS WITH RELATED PARTIES. Enter into any transaction or agreement with
any officer, director or holder (other than the Parent or any of its
Subsidiaries) of any equity interest in
72
any Obligor (or any Affiliate, other than the Parent or any of its
Subsidiaries, of any such Person) unless the same is upon terms substantially
similar to those obtainable from wholly unrelated sources (to the best
knowledge of the executive officers of the applicable Obligor or Affiliate,
after making reasonable inquiry of the personnel and records of the applicable
Obligor or Affiliate).
LOANS AND INVESTMENTS. Make any loan, advance or capital contribution to, or
make or, except as permitted by this Agreement, have any Investment in, any
Person, or make any commitment to make any such Investment, except (a) Permitted
Investments and (b) normal and reasonable advances in the ordinary course of
business to officers and employees.
ORGANIZATIONAL DOCUMENTS, ETC. Amend, modify, restate or supplement any of its
Organizational Documents if such action would reasonably be expected to
materially and adversely affect any collateral, if applicable, or Obligation or
the ability of any Obligor to perform its Obligations under any Loan Document,
unless such action shall be consented to in writing by the Majority Lenders.
UNFUNDED LIABILITIES. Incur any Unfunded Liabilities after the Effective Date
or allow any Unfunded Liabilities in excess of US$5,000,000, in the aggregate,
to arise or exist.
SUBORDINATED INDEBTEDNESS. Except as expressly permitted in writing by the
Majority Lenders or as required by the terms of the relevant Subordinated
Indebtedness, Borrowers will not amend, modify or obtain or grant a waiver of
any provision of any document or instrument evidencing any Subordinated
Indebtedness or purchase, redeem, retire or otherwise acquire for value, deposit
any monies with any Person with respect to or make any payment or prepayment of
the principal of or any other amount owing in respect of, any Subordinated
Indebtedness.
NO BURDENSOME AGREEMENTS; PROHIBITIONS OF LIENS OR SUBSIDIARY DIVIDENDS. Except
for Borrowed Money Indebtedness permitted by Section 8.1, enter into any
agreement or contract which limits or restricts in any way (i) the granting of
Liens by any Obligor securing any of the Obligations (excluding, however,
restrictions in favor of the holder of a Permitted Lien or Borrowed Money
Indebtedness to the extent such restrictions apply only to Property subject to
Permitted Liens), (ii) the guaranties of the Obligations by any of the Obligors
or (iii) any dividends or distributions by any Subsidiary of any Borrower to
such Borrower or to another Subsidiary of such Borrower.
OTHER AGREEMENTS. Permit any of its Subsidiaries to, enter into any agreement
(excluding this Agreement or any other Loan Documents) governing or issued in
connection with a debt or other instrument to any third party company or person
other than in a senior unsecured facility that is publicly placed or sold to
institutional investors in a transaction otherwise permitted by this Agreement.
NATURE OF BUSINESS. Enter into any business, if after giving effect thereto, the
business of the Parent and its Subsidiaries, taken as a whole, would be
substantially different from the business in which the Parent and its
Subsidiaries, taken as a whole, is presently engaged (a "Permitted Business").
CAPITAL EXPENDITURES. Expend, or be committed to expend, material Capital
Expenditures for any purpose other than in connection with a Permitted Business.
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MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio of the Parent and its
Subsidiaries on a Consolidated basis, to be greater than 0.45 to 1.0 at the end
of any fiscal quarter.
MINIMUM INTEREST CHARGE COVERAGE RATIO. As of the end of any fiscal quarter,
permit the Interest Coverage Ratio for the Parent and its Subsidiaries, on a
Consolidated basis to be less than 3.00 to 1.00.
DEFAULTS
EVENTS OF DEFAULT. If any one or more of the following events (herein called
"Events of Default") shall occur, then the U.S. Administrative Agent may at the
direction or with the consent of the Majority Lenders do any or all of the
following without notice to U.S. Borrower, Canadian Borrowers, Norwegian
Borrower or any other Person (provided however, that the U.S. Administrative
Agent shall use its reasonable best efforts to provide notice within 15
Business Days of taking any such action to U.S. Borrower, Canadian Borrowers
and Norwegian Borrower, provided that, the failure to give, or delay in giving,
any such notice shall not effect the validity of such action taken nor impose
or create any liability on the U.S. Administrative Agent for failure to do so):
(1) declare the Commitments terminated (whereupon the Commitments shall be
terminated) and/or accelerate the Termination Date to a date as early as the
date of termination of the Commitments; (2) terminate any Letter of Credit
allowing for such termination, by sending a notice of termination as provided
therein and require the applicable Borrower to provide Cover for outstanding
Letters of Credit; (3) declare the principal amount then outstanding of and the
unpaid accrued interest on the Loans and Reimbursement Obligations and all fees
and all other amounts payable hereunder, under the Notes and under the other
Loan Documents to be forthwith due and payable, whereupon such amounts shall be
and become immediately due and payable, without notice (including, without
limitation, notice of acceleration and notice of intent to accelerate),
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by U.S. Borrower, Canadian Borrowers and Norwegian
Borrower; provided that in the case of the occurrence of an Event of Default
with respect to any Obligor referred to in clause (f), (g) or (h) of this
Section 9.1, the Commitments shall be automatically terminated and the
principal amount then outstanding of and unpaid accrued interest on the Loans
and the Reimbursement Obligations and all fees and all other amounts payable
hereunder, under the Notes and under the other Loan Documents shall be and
become automatically and immediately due and payable, without notice
(including, without limitation, notice of acceleration and notice of intent to
accelerate), presentment, demand, protest or other formalities of any kind, all
of which are hereby expressly waived by U.S. Borrower, Canadian Borrowers and
Norwegian Borrower, and (4) exercise any or all other rights and remedies
available to any Administrative Agent or any Lenders under the Loan Documents,
at law or in equity:
Payments - (i) any Obligor shall fail to make any payment of principal on the
Loans payable under this Agreement or the other Loan Documents when due or any
Obligor fails to make any payment or required prepayment of any Reimbursement
Obligation (except for such Reimbursement Obligations which shall become Loans
hereunder pursuant to Section 2.3(b)(iv)) or (ii) any Obligor shall fail to
make any payment of any interest with respect to
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the Loans or any other fee or amount under this Agreement or the other Loan
Documents when due and, in the case of clause (ii) only, such failure to pay
continues unremedied for a period of five days; or
Other Obligations - any Obligor or Material Subsidiary shall default in the
payment when due of any principal of or interest on any Borrowed Money
Indebtedness having an outstanding principal amount of at least the applicable
equivalent of US$5,000,000 (other than the Loans and Reimbursement Obligations)
and such default shall continue beyond any applicable period of grace; or any
event or condition shall occur which results in the acceleration of the
maturity of any such Borrowed Money Indebtedness or enables (or, with the
giving of notice or lapse of time or both, would enable) the holder of any such
Borrowed Money Indebtedness or any Person acting on such holder's behalf to
accelerate the maturity thereof and such event or condition shall not be cured
within any applicable period of grace; or
Representations and Warranties - any representation or warranty made or deemed
made by or on behalf of any Obligor in this Agreement or any other Loan
Document or in any certificate furnished or made by any Obligor to
Administrative Agents or the Lenders in connection herewith or therewith shall
prove to have been incorrect, false or misleading in any material respect as of
the date thereof or as of the date as of which the facts therein set forth were
stated or certified or deemed stated or certified; or
Affirmative Covenants - (i) default shall be made in the due observance or
performance of any of the covenants or agreements contained in Sections 7.8 and
7.11 hereof, (ii) default shall be made in the due observance or performance of
any of the covenants or agreements contained in Sections 7.2, 7.3, 7.6, or 7.7
hereof and, in each case, such default continues unremedied for a period of 20
days after notice thereof is given by any Administrative Agent to U.S.
Borrower, to a Canadian Borrower or to Norwegian Borrower, or (iii) default is
made in the due observance or performance of any of the other covenants and
agreements contained in Article 7 hereof or any other affirmative covenant of
any Obligor contained in this Agreement or any other Loan Document and such
default continues unremedied for a period of 30 days after notice thereof is
given by any Administrative Agent to U.S. Borrower, a Canadian Borrower or to
Norwegian Borrower; or
Negative Covenants - default is made in the due observance or performance by
U.S. Borrower, a Canadian Borrower or Norwegian Borrower of any of the
covenants or agreements contained in Article 8 of this Agreement or of any
other negative covenant of any Obligor contained in this Agreement or any other
Loan Document; or
Involuntary Bankruptcy or Receivership Proceedings - a receiver,
receiver-manager, interim receiver, monitor, conservator, liquidator or trustee
of any Obligor or Material Subsidiary or of any of its Property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction; or any Obligor or Material Subsidiary is adjudicated bankrupt or
insolvent; or any of such Person's Property is sequestered by court order and
such order remains in effect for more than 60 days; or a petition is filed
against any Obligor or Material Subsidiary under any state or federal
bankruptcy, reorganization,
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arrangement, insolvency, readjustment or debt, dissolution, liquidation or
receivership law of any jurisdiction, whether now or hereafter in effect, and
is not dismissed within 60 days after such filing; or
Voluntary Petitions or Consents - any Obligor or Material Subsidiary commences
a voluntary case or other proceeding or order seeking liquidation,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other relief with respect to itself or its debts or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its Property, or consents to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or cannot pay its debts generally as they
become due or takes any corporate action to authorize or effect any of the
foregoing; or
Assignments for Benefit of Creditors or Admissions of Insolvency - any Obligor
or Material Subsidiary makes an assignment for the benefit of its creditors, or
admits in writing its insolvency (including any admission of its inability to
pay its debts generally as they become due), or consents to the appointment of
a receiver, receiver-manager, interim receiver, monitor, trustee, or liquidator
of such Obligor or Material Subsidiary or of all or any substantial part of its
Property; or
Undischarged Judgments - a final non-appealable judgment or judgments for the
payment of money in a net aggregate amount, after deducting any amounts covered
by insurance, of US$5,000,000 or greater, is rendered by any court or other
governmental body against any Obligor or Material Subsidiary and such Obligor
or Material Subsidiary does not discharge the same or provide for its discharge
in accordance with its terms, or procure a stay of execution thereof within 30
days from the date of entry thereof;
Ownership Change or Encumbrance - Parent shall cease to own, directly or
indirectly, all of the issued and outstanding equity interests in each of the
Borrowers and each Material Subsidiary or any Change of Control shall occur; or
Any Loan Document at any time after its execution and delivery and for any
reason other than as expressly permitted hereunder or satisfaction in full of
all the Obligations, ceases to be in full force and effect or any Obligor,
Affiliate of any Obligor or Subsidiary contests in any manner the validity or
enforceability of any Loan Document; or any Obligor denies that it has any or
further liability or Obligation under any Loan Document, or purports to revoke,
terminate (other than as expressly permitted hereunder or in satisfaction in
full of all the Obligations) or rescind any Loan Document.
RIGHT OF SETOFF. Upon the occurrence and during the continuance of any Event of
Default, each Lender is hereby authorized at any time and from time to time,
without notice to any Obligor (any such notice being expressly waived by U.S.
Borrower, Canadian Borrowers, Norwegian Borrower and the other Obligors), to
setoff and apply any and all deposits (general or special, time or demand,
provisional or final but excluding the funds held in accounts clearly
designated as escrow or trust accounts held by U.S. Borrower, Canadian
Borrowers, Norwegian Borrower or any other Obligor for the benefit of Persons
which are
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not Obligors or Affiliates of any Obligor), whether or not such setoff results
in any loss of interest or other penalty, and including without limitation all
certificates of deposit, at any time held, and any other funds or Property at
any time held, and other indebtedness at any time owing by such Lender to or
for the credit or the account of U.S. Borrower, Canadian Borrowers, Norwegian
Borrower or any other Obligor against any and all of the Obligations
irrespective of whether or not such Lender or any Administrative Agent will
have made any demand under this Agreement, the Notes or any other Loan
Document. Should the right of any Lender to realize funds in any manner set
forth above be challenged and any application of such funds be reversed,
whether by court order or otherwise, each Lender, to the extent such Lender has
received such funds, shall make restitution or refund to U.S. Borrower,
Canadian Borrower or Norwegian Borrower or the applicable other Obligor, as the
case may be, pro rata in accordance with their U.S. Commitments, Canadian
Commitments or Norwegian Commitments, as the case may be. Each Lender agrees
to promptly notify U.S. Borrower, Canadian Borrowers, Norwegian Borrower and
Administrative Agents after any such setoff and application, provided that the
failure to give such notice will not affect the validity of such setoff and
application. The rights of Administrative Agents and the Lenders under this
Section are in addition to other rights and remedies (including without
limitation other rights of setoff) which Administrative Agents or the Lenders
may have. This Section is subject to the terms and provisions of Sections 4.5
and 11.7 hereof. Any amounts realized under this Section which constitute an
asset of a Canadian Borrower shall only be applied to the payment of Canadian
Obligations. Any amounts realized under this Section which constitute an asset
of Norwegian Borrower shall only be applied to the payment of Norwegian
Obligations. Any amounts realized under this Section which constitute an asset
of U.S. Borrower shall only be applied to the payment of U.S. Obligations.
COLLATERAL ACCOUNT. U.S. Borrower hereby agrees, in addition to the provisions
of Section 9.1 hereof, that upon the occurrence and during the continuance of
any Event of Default (except as otherwise provided for herein), it shall, if
requested by the Majority Lenders (through the U.S. Administrative Agent), or
automatically upon the occurrence of an Event of Default pursuant to Section
9.1(f), and to the extent permitted by law, pay to U.S. Administrative Agent an
amount in immediately available funds equal to the then aggregate amount
available for drawings under all outstanding U.S. Letters of Credit, which
funds shall be held by U.S. Administrative Agent as Cover. Each Canadian
Borrower hereby agrees, in addition to the provisions of Section 9.1 hereof,
that upon the occurrence and during the continuance of any Event of Default, it
shall, if requested by the Majority Lenders (through the Canadian
Administrative Agent), pay to Canadian Administrative Agent an amount in
immediately available funds equal to the sum of the then aggregate amount
available for drawings under all outstanding Canadian Letters of Credit plus
the unpaid principal balance of all outstanding Bankers' Acceptances, which
funds shall be held by Canadian Administrative Agent as Cover. Norwegian
Borrower hereby agrees, in addition to the provisions of Section 9.1 hereof,
that upon the occurrence and during the continuance of any Event of Default, it
shall, if requested by the Majority Lenders (through Norwegian Administrative
Agent), pay to Norwegian Administrative Agent an amount in immediately
available funds equal to the sum of the then aggregate amount available for
drawings under all outstanding Norwegian Letters of Credit, which funds shall
be held by Norwegian Administrative Agent as Cover.
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PRESERVATION OF SECURITY FOR UNMATURED OBLIGATIONS. In the event that,
following (i) the occurrence of an Event of Default and the exercise of any
rights available to any Administrative Agent or any Lender under the Loan
Documents, and (ii) payment in full of the principal amount then outstanding of
and the accrued interest on the Loans and Reimbursement Obligations and fees
and all other amounts payable hereunder and under the Loan Documents , any
Letters of Credit or Bankers' Acceptances shall remain outstanding and undrawn
upon, the applicable Administrative Agent shall be entitled to hold (and each
Borrower and each other Obligor hereby grants and conveys to Administrative
Agent a security interest in and to) all cash or, to the extent not in
violation of any agreement existing at the time, other Property, if any,
("Proceeds of Remedies") realized or arising out of the exercise of any rights
available under the Loan Documents, at law or in equity, including, without
limitation, the proceeds of any foreclosure, as collateral for the payment of
any amounts due or to become due under or in respect of such Letters of Credit
and/or such Bankers' Acceptances. Such Proceeds of Remedies shall be held for
the ratable benefit of the U.S. Lenders, the Canadian Lenders or Norwegian
Lenders, as the case may be. The rights, titles, benefits, privileges, duties
and obligations of the applicable Administrative Agent with respect thereto
shall be governed by the terms and provisions of this Agreement. The applicable
Administrative Agent may, but shall have no obligation to, invest any such
Proceeds of Remedies in such manner as such Administrative Agent, in the
exercise of its sole discretion, deems appropriate. Such Proceeds of Remedies
shall be applied to Reimbursement Obligations arising in respect of any such
Letters of Credit, the payment of any Lender's obligations under any such
Letter of Credit and/or the Obligations relating to any such Bankers'
Acceptance when such Letter of Credit is drawn upon or such Bankers' Acceptance
matures, as the case may be. Nothing in this Section shall cause or permit an
increase in the maximum amount of the Obligations permitted to be outstanding
from time to time under this Agreement. Any amounts realized under this
Section which constitute an asset of a Canadian Borrower shall only be applied
to the payment of Canadian Obligations. Any amounts realized under this Section
which constitute an asset of Norwegian Borrower shall only be applied to the
payment of Norwegian Obligations. Any amounts realized under this Section which
constitute an asset of U.S. Borrower shall only be applied to the payment of
U.S. Obligations.
CURRENCY CONVERSION AFTER MATURITY. At any time following the occurrence of an
Event of Default and the acceleration of the maturity of the Obligations owed
to the Canadian Lenders hereunder, the Canadian Lenders shall be entitled to
convert, with two (2) Business Days' prior notice to the applicable Canadian
Borrower, any and all or any part of the then unpaid and outstanding LIBOR
Borrowings and Base Rate Borrowings of the applicable Canadian Borrower to
Canadian Prime Loans. Any such conversion shall be calculated so that the
resulting Canadian Prime Loans shall be the equivalent on the date of
conversion of the amount of Dollars so converted. Any accrued and unpaid
interest denominated in Dollars at the time of any such conversion shall be
similarly converted to Canadian Dollars, and such Canadian Prime Loans and
accrued and unpaid interest thereon shall thereafter bear interest in
accordance with the terms hereof.
REMEDIES CUMULATIVE. No remedy, right or power conferred upon any
Administrative Agent or any Lender is intended to be exclusive of any other
remedy, right or power given
78
hereunder or now or hereafter existing at law, in equity, or otherwise, and all
such remedies, rights and powers shall be cumulative.
ADMINISTRATIVE AGENTS
APPOINTMENT, POWERS AND IMMUNITIES. Each U.S. Lender hereby irrevocably
appoints and authorizes U.S. Administrative Agent to act as its Administrative
Agent hereunder, under the U.S. Letters of Credit and under the other Loan
Documents with such powers as are specifically delegated to U.S. Administrative
Agent by the terms hereof and thereof, together with such other powers as are
reasonably incidental thereto. Each Canadian Lender hereby irrevocably appoints
and authorizes Canadian Administrative Agent to act as its Administrative Agent
hereunder, under the Canadian Letters of Credit and under the other Loan
Documents with such powers as are specifically delegated to Canadian
Administrative Agent by the terms hereof and thereof, together with such other
powers as are reasonably incidental thereto. Each Norwegian Lender hereby
irrevocably appoints and authorizes Norwegian Administrative Agent to act as
its Administrative Agent hereunder, under the Norwegian Letters of Credit and
under the other Loan Documents with such powers as are specifically delegated
to Norwegian Administrative Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. Any Loan Documents
executed in favor of any Administrative Agent shall be held by such
Administrative Agent for the ratable benefit of the applicable Lenders. None of
the Administrative Agents ("Administrative Agents" as used in this Section 10
shall include reference to their Affiliates and their own and their Affiliates'
respective officers, shareholders, directors, employees and Administrative
Agents) (a) shall have any duties or responsibilities except those expressly
set forth in this Agreement, the Letters of Credit, and the other Loan
Documents, and shall not by reason of this Agreement or any other Loan Document
be a trustee or fiduciary for any Lender; (b) shall be responsible to any
Lender for any recitals, statements, representations or warranties contained in
this Agreement, the Letters of Credit or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by
any of them under, this Agreement, the Letters of Credit or any other Loan
Document, or for the value, validity, effectiveness, genuineness,
enforceability, execution, filing, registration, collectibility, recording,
perfection, existence or sufficiency of this Agreement, the Letters of Credit,
or any other Loan Document or any other document referred to or provided for
herein or therein or any Property covered thereby or for any failure by any
Obligor or any other Person to perform any of its obligations hereunder or
thereunder, or shall have any duty to inquire into or pass upon any of the
foregoing matters; (c) shall be required to initiate or conduct any litigation
or collection proceedings hereunder or under the Letters of Credit or any other
Loan Document except to the extent requested and adequately indemnified by the
Majority Lenders; (d) shall be responsible for any mistake of law or fact or
any action taken or omitted to be taken by it hereunder or under the Letters or
Credit or any other Loan Document or any other document or instrument referred
to or provided for herein or therein or in connection herewith or therewith,
including, without limitation, pursuant to its own negligence, except for its
own gross negligence or willful misconduct; (e) shall be bound by or obliged to
recognize any agreement among or between any Borrower and any Lender to which
such Administrative Agent is not a party, regardless of whether such
Administrative Agent has knowledge of the existence of any such agreement or
the terms and provisions
79
thereof; (f) shall be charged with notice or knowledge of any fact or
information not herein set out or provided to such Administrative Agent in
accordance with the terms of this Agreement or any other Loan Document; (g)
shall be responsible for any delay, error, omission or default of any mail,
telegraph, cable or wireless agency or operator, and (h) shall be responsible
for the acts or edicts of any Governmental Authority. Any Administrative Agent
may employ Administrative Agents and attorneys-in-fact and none of the
Administrative Agents shall be responsible for the negligence or misconduct of
any such Administrative Agents or attorneys-in-fact selected by it with
reasonable care. Without in any way limiting any of the foregoing, each Lender
acknowledges that none of the Administrative Agents (nor any Issuer) shall have
greater responsibility in the operation of the Letters of Credit than is
specified in the Uniform Customs and Practice for Documentary Credits (1993
Revision, International Chamber of Commerce Publication No. 500). In any
foreclosure proceeding concerning any collateral, if applicable, each holder of
an Obligation if bidding for its own account or for its own account and the
accounts of other Lenders is prohibited from including in the amount of its bid
an amount to be applied as a credit against the Obligations held by it or the
Obligations held by the other Lenders; instead, such holder must bid in cash
only. However, in any such foreclosure proceeding, (i) U.S. Administrative
Agent may (but shall not be obligated to) submit a bid for all U.S. Lenders
(including itself) in the form of a credit against the U.S. Obligations, and
U.S. Administrative Agent or its designee may (but shall not be obligated to)
accept title to such collateral for and on behalf of all U.S. Lenders, (ii)
Canadian Administrative Agent may (but shall not be obligated to) submit a bid
for all Canadian Lenders (including itself) in the form of a credit against the
Canadian Obligations, and Canadian Administrative Agent or its designee may
(but shall not be obligated to) accept title to such collateral for and on
behalf of all Canadian Lenders and (iii) Norwegian Administrative Agent may
(but shall not be obligated to) submit a bid for all Norwegian Lenders
(including itself) in the form of a credit against the Norwegian Obligations,
and Norwegian Administrative Agent or its designee may (but shall not be
obligated to) accept title to such collateral for and on behalf of all
Norwegian Lenders.
RELIANCE. Each Administrative Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telegram, electronic mail or cable) believed by it to be
genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(which may be counsel for any Borrower), independent accountants and other
experts selected by such Administrative Agent. None of the Administrative
Agents shall be required in any way to determine the identity or authority of
any Person delivering or executing the same. As to any matters not expressly
provided for by this Agreement, the Letters of Credit, or any other Loan
Document, each Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder and thereunder in accordance
with instructions of the Majority Lenders, and any action taken or failure to
act by U.S. Administrative Agent pursuant thereto shall be binding on all of
the U.S. Lenders, any action taken or failure to act by Canadian
Administrative Agent pursuant thereto shall be binding on all of the Canadian
Lenders and any action taken or failure to act by Norwegian Administrative
Agent pursuant thereto shall be binding on all of the Norwegian Lenders. If any
order, writ, judgment or decree shall be made or entered by any court affecting
the rights, duties and obligations of any Administrative Agent under this
Agreement or any other Loan Document, then and in
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any of such events such Administrative Agent is authorized, in its sole
discretion, to rely upon and comply with such order, writ, judgment or decree
which it is advised by legal counsel of its own choosing is binding upon it
under the terms of this Agreement, the relevant Loan Document or otherwise; and
if such Administrative Agent complies with any such order, writ, judgment or
decree, then it shall not be liable to any Lender or to any other Person by
reason of such compliance even though such order, writ, judgment or decree may
be subsequently reversed, modified, annulled, set aside or vacated.
DEFAULTS. None of the Administrative Agents shall be deemed to have knowledge
of the occurrence of a Default (other than the non-payment of principal of or
interest on Loans or Reimbursement Obligations) unless such Administrative
Agent has received notice from a Lender or a Borrower specifying such Default
and stating that such notice is a "Notice of Default." In the event that any
Administrative Agent receives such a Notice of Default, such Administrative
Agent shall give prompt notice thereof to the Lenders (and shall give each
Lender prompt notice of each such non-payment). Each Administrative Agent shall
(subject to Section 10.7 hereof) take such action with respect to such Notice
of Default as shall be directed by the Majority Lenders and within its rights
under the Loan Documents and at law or in equity, provided that, unless and
until an Administrative Agent shall have received such directions, such
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, permitted hereby with respect to such Notice
of Default as it shall deem advisable in the best interests of the Lenders and
within its rights under the Loan Documents, at law or in equity.
MATERIAL WRITTEN NOTICES. In the event that any Administrative Agent receives
any written notice of a material nature from any Borrower or any Obligor under
the Loan Documents, such Administrative Agent shall promptly inform each of the
Lenders thereof.
RIGHTS AS A LENDER. With respect to its Commitments and the Obligations, each
of Xxxxx Fargo, The Bank of Nova Scotia and Den norske Bank, ASA, in its
capacity as a Lender hereunder, shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting in
its agency capacity, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include each Administrative Agent in its
individual capacity. Each Administrative Agent may (without having to account
therefor to any Lender) accept deposits from, lend money to and generally
engage in any kind of banking, trust, letter of credit, agency or other
business with any Borrower (and any of their Affiliates) as if it were not
acting as an Administrative Agent, and each Administrative Agent may accept
fees and other consideration from any Borrower (in addition to the fees
heretofore agreed to between any Borrower and any Administrative Agent) for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
INDEMNIFICATION. The Canadian Lenders, Norwegian Lenders and the U.S. Lenders,
respectively, agree to indemnify Canadian Administrative Agent, Norwegian
Administrative Agent and U.S. Administrative Agent, respectively (to the extent
not reimbursed under Section 2.3(c), Section 11.3 or Section 11.4 hereof, but
without limiting the obligations of any Borrower under said Sections 2.3(c),
11.3 and 11.4), ratably in accordance with the sum of the applicable Lenders'
respective Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind
81
and nature whatsoever, REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY THE
NEGLIGENCE OF ANY INDEMNIFIED PARTIES, which may be imposed on, incurred by or
asserted against the applicable Administrative Agent in any way relating to or
arising out of this Agreement, the Letters of Credit or any other Loan Document
or any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses which any Borrower is obligated to pay under Sections
2.3(c), 11.3 and 11.4 hereof, interest, penalties, attorneys' fees and amounts
paid in settlement, but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or of any such other documents; provided that no Lender
shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the party to be indemnified. The
obligations of the Lenders under this Section 10.6 shall survive the
termination of this Agreement and the repayment of the Obligations.
NON-RELIANCE ON ADMINISTRATIVE AGENTS AND OTHER LENDERS. Each Lender agrees
that it has received current financial information with respect to each
Borrower and each other Obligor and that it has, independently and without
reliance on any Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis of each Borrower and each other Obligor and decision to enter into
this Agreement and that it will, independently and without reliance upon any
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any of the other Loan Documents. None of the Administrative Agents shall be
required to keep itself informed as to the performance or observance by any
Obligor of this Agreement, the Letters of Credit or any of the other Loan
Documents or any other document referred to or provided for herein or therein
or to inspect the properties or books of any Obligor. Except for notices,
reports and other documents and information expressly required to be furnished
to an Administrative Agent hereunder, under the Letters of Credit or the other
Loan Documents, none of the Administrative Agents shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of any Obligor (or any
of their affiliates) which may come into the possession of any Administrative
Agent.
FAILURE TO ACT. Except for action expressly required of an Administrative Agent
hereunder, under the Letters of Credit or under the other Loan Documents, each
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Lenders of their indemnification
obligations under Section 10.6 hereof against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action.
RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to the appointment and
acceptance of a successor U.S. Administrative Agent, Canadian Administrative
Agent or Norwegian Administrative Agent, as the case may be, as provided below,
U.S. Administrative Agent, Canadian Administrative Agent and Norwegian
Administrative Agent, respectively, may resign at any time by giving notice
thereof to the U.S. Lenders, the Canadian Lenders and
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Norwegian Lenders, respectively, and to U.S. Borrower, Canadian Borrowers and
Norwegian Borrower, respectively, and any Administrative Agent may be removed
at any time with or without cause by the Majority Lenders; provided, that such
Administrative Agent shall continue as U.S. Administrative Agent, Canadian
Administrative Agent or Norwegian Administrative Agent, as the case may be,
until such time as any successor shall have accepted appointment hereunder as
U.S. Administrative Agent, Canadian Administrative Agent or Norwegian
Administrative Agent, as the case may be. Upon any such resignation or removal,
(i) the Majority Lenders with the consent of Borrowers (if no Event of Default
shall exist and be continuing) shall have the right to appoint a successor U.S.
Administrative Agent, Canadian Administrative Agent or Norwegian Administrative
Agent, as the case may be, so long as such successor U.S. Administrative Agent,
Canadian Administrative Agent or Norwegian Administrative Agent, as the case
may be, is also a Lender at the time of such appointment and (ii) the Majority
Lenders shall have the right to appoint a successor U.S. Administrative Agent,
Canadian Administrative Agent or Norwegian Administrative Agent, as the case
may be, that is not a Lender at the time of such appointment so long as
Borrowers consent to such appointment (which consent shall not be unreasonably
withheld and shall not be required if an Event of Default exists). If no
successor U.S. Administrative Agent, Canadian Administrative Agent or
Norwegian Administrative Agent, as the case may be, shall have been so
appointed by the Majority Lenders and accepted such appointment within 30 days
after the retiring U.S. Administrative Agent's, Canadian Administrative
Agent's or Norwegian Administrative Agent's, as the case may be, giving of
notice of resignation or the Majority Lenders' removal of the retiring U.S.
Administrative Agent, Canadian Administrative Agent or Norwegian Administrative
Agent, as the case may be, then the retiring Administrative Agent may, on
behalf of the applicable Lenders, appoint a successor U.S. Administrative
Agent, Canadian Administrative Agent or Norwegian Administrative Agent, as the
case may be, with the consent of Borrowers (if no Event of Default shall exist
and be continuing), but without the consent of any Lender or any Borrower if an
Event of Default has occurred and is continuing. Any successor U.S.
Administrative Agent shall be a bank which has an office in the United States
and a combined capital and surplus of at least US$250,000,000 and any successor
Canadian Administrative Agent shall be a bank which has an office in Canada and
a combined capital and surplus of at least C$250,000,000 and any successor
Norwegian Agent shall be a bank which has an office in Norway and a combined
capital and surplus of at least NOK250,000,000 Upon the acceptance of any
appointment as U.S. Administrative Agent, Canadian Administrative Agent or
Norwegian Administrative Agent, as the case may be, hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under any
other Loan Documents. Such successor Administrative Agent shall promptly
specify by notice to Borrowers and Lenders its Principal Office referred to in
Section 3.1 and Article 4 hereof. After any retiring Administrative Agent's
resignation or removal hereunder as an Administrative Agent, the provisions of
this Section 10 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
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NO PARTNERSHIP. Neither the execution and delivery of this Agreement nor any of
the other Loan Documents nor any interest the Lenders, Administrative Agents or
any of them may now or hereafter have in all or any part of the Obligations
shall create or be construed as creating a partnership, joint venture or other
joint enterprise between the Lenders or among the Lenders and any
Administrative Agent. The relationship between the Lenders, on the one hand,
and any Administrative Agent, on the other, is and shall be that of principals
and Administrative Agent only, and nothing in this Agreement or any of the
other Loan Documents shall be construed to constitute any Administrative Agent
as trustee or other fiduciary for any Lender or to impose on any Administrative
Agent any duty, responsibility or obligation other than those expressly
provided for herein and therein.
MISCELLANEOUS
WAIVER. No waiver of any Default or Event of Default shall be a waiver of any
other Default or Event of Default. No failure on the part of any Administrative
Agent or any Lender to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under any Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege thereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies
provided in the Loan Documents are cumulative and not exclusive of any remedies
provided by law or in equity.
NOTICES. All notices and other communications provided for herein (including,
without limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made by telex, telegraph, telecopy (confirmed by
mail), cable, electronic mail (pursuant to procedures approved in writing by
U.S. Administrative Agent, provided that approval of such procedures may be
limited to particular notices or communications) or other writing and telexed,
telecopied, telegraphed, cabled, mailed, electronically mailed or delivered to
the intended recipient at the "Address for Notices" specified below its name on
the signature pages hereof (or provided for in an Assignment and Acceptance);
or in the case of electronic mail, in accordance with the procedures set by the
U.S. Administrative Agent, or, as to any party hereto, at such other address as
shall be designated by such party in a notice (given in accordance with this
Section) (i) as to any Borrower, to Administrative Agents, (ii) as to U.S.
Administrative Agent, to U.S. Borrower and to each U.S. Lender, (iii) as to
Canadian Administrative Agent, to a Canadian Borrower and to each Canadian
Lender, (iv) as to Norwegian Administrative Agent, to Norwegian Borrower and to
each Norwegian Lender, (v) as to any U.S. Lender, to U.S. Borrower and
Administrative Agents, (v) as to any Canadian Lender, to a Canadian Borrower
and Administrative Agents and (vi) as to any Norwegian Lender, to Norwegian
Borrower and Administrative Agents. Except as otherwise provided in this
Agreement, all such notices or communications shall be deemed to have been duly
given when (a) transmitted by telex or telecopier or delivered to the telegraph
or cable office, (b) personally delivered (c) one Business Day after deposit
with an overnight mail or delivery service, postage prepaid or (d) three
Business Days' after deposit in a receptacle maintained by the United States
Postal Service, Canada Post or Norway Post, as the case may be, postage
prepaid, registered or certified mail, return receipt requested, in each case
given or addressed as aforesaid.
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EXPENSES, ETC. Whether or not any Loan is ever made or any Bankers' Acceptances
ever accepted and purchased or any Letter of Credit ever issued, Borrowers shall
pay or reimburse within 10 days after written demand (a) any Administrative
Agent for paying the reasonable fees and expenses of legal counsel to such
Administrative Agent, together with the reasonable fees and expenses of each
local counsel to such Administrative Agent, in connection with the preparation,
negotiation, execution and delivery of this Agreement (including the exhibits
and schedules hereto), the other Loan Documents and the making of the Loans and
the acceptance and purchase of Bankers' Acceptances and the issuance of Letters
of Credit hereunder, and any modification, supplement or waiver of any of the
terms of this Agreement, the Letters of Credit or any other Loan Document; (b)
any Administrative Agent for any Lien search fees incurred while an Event of
Default exists, and reasonable out-of-pocket expenses incurred in connection
with the preparation, documentation, administration and pre-Effective Date
syndication of any of the Loan Documents (including, without limitation, the
advertising, marketing, printing, publicity, duplicating, mailing and similar
expenses) or any of the Obligations; (c) any Administrative Agent or any Lender
for paying all transfer, stamp, documentary or other similar taxes, assessments
or charges levied by any governmental or revenue authority in respect of this
Agreement, any Letter of Credit or any other Loan Document or any other document
referred to herein or therein; (d) any Administrative Agent for paying all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by this Agreement, any document referred to herein or therein, and
(e) following the occurrence and during the continuation of an Event of Default,
any Lender or any Administrative Agent for paying all amounts reasonably
expended, advanced or incurred by such Lender or such Administrative Agent to
satisfy any obligation of any Obligor under this Agreement or any other Loan
Document, to protect the collateral, if applicable, to collect the Obligations
or to enforce, protect, preserve or defend the rights of the Lenders or
Administrative Agents under this Agreement or any other Loan Document,
including, without limitation, fees and expenses incurred in connection with
such Lender's or such Administrative Agent's participation as a member of a
creditor's committee in a case commenced under the Bankruptcy Code or other
similar law, fees and expenses incurred in connection with lifting the automatic
stay prescribed in Section 362 of the Bankruptcy Code and fees and expenses
incurred in connection with any action pursuant to Section 1129 of the
Bankruptcy Code and all other customary out-of-pocket expenses incurred by such
Lender or such Administrative Agent in connection with such matters, together
with interest thereon at the Default Rate applicable to U.S. Loans on each such
amount from the due date of payment until the date of reimbursement to such
Lender or such Administrative Agent.
INDEMNIFICATION. Each Borrower, shall indemnify each applicable Administrative
Agent and each applicable Lender and each affiliate thereof and their respective
directors, officers and employees from, and hold each of them harmless against,
any and all losses, liabilities, claims or damages to which any of them may
become subject, REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY THE
NEGLIGENCE OF ANY INDEMNIFIED PARTIES, insofar as such losses, liabilities,
claims or damages arise out of or result from any (i) actual or proposed use by
any such Borrower of the proceeds of any extension of credit (whether a Loan, a
Bankers' Acceptance or a Letter of Credit) by any Lender hereunder; (ii) breach
by any Obligor of this Agreement or any other Loan Document; (iii) violation by
any
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Obligor of any Legal Requirement, or (iv) investigation, litigation or other
proceeding relating to any of the foregoing, and each Borrower, shall reimburse
each applicable Administrative Agent, each applicable Lender, and each Affiliate
thereof and their respective directors, officers and employees, upon demand for
any reasonable expenses (including reasonable legal fees) incurred in connection
with any such investigation or proceeding; provided, however, that none of the
Borrowers shall have any obligations pursuant to this Section with respect to
any losses, liabilities, claims, damages or expenses incurred by the Person
seeking indemnification by reason of the gross negligence or willful misconduct
of that Person or with respect to any disputes between or among any or all of
Administrative Agents, Lenders, U.S. Swing Line Lender and Issuers. Nothing in
this Section is intended to limit the obligations of any Borrower under any
other provision of this Agreement. Each Administrative Agent, each Lender and
the U.S. Swing Line Lender, respectively, shall indemnify Borrowers and hold
Borrowers harmless from and against the gross negligence or willful misconduct
of such Administrative Agent, such Lender or such U.S. Swing Line Lender, as the
case may be. Nothing in this Section shall render a Canadian Borrower liable in
respect of the U.S. Obligations or Norwegian Obligations. Nothing in this
Section shall render Norwegian Borrower liable in respect of the U.S.
Obligations or Canadian Obligations. Nothing in this Section shall render U.S.
Borrower liable in respect of the Canadian Obligations or the Norwegian
Obligations.
AMENDMENTS, ETC. No amendment or modification of this Agreement, the Notes or
any other Loan Document shall in any event be effective against any Borrower
unless the same shall be agreed or consented to in writing by the applicable
Borrower. No amendment, modification or waiver of any provision of this
Agreement, the Notes or any other Loan Document, nor any consent to any
departure by any Borrower therefrom, shall in any event be effective against the
Lenders unless the same shall be agreed or consented to in writing by the
Majority Lenders, and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, that
no amendment, modification, waiver or consent shall, unless in writing and
signed by each Lender affected thereby, do any of the following: (a) increase
any Commitment of any of the Lenders (or reinstate any termination or reduction
of the Commitments) or subject any of the Lenders to any additional obligations;
(b) reduce the principal of, or interest on, any Loan, Reimbursement Obligation,
fee or other amount due hereunder; (c) postpone or extend the Maturity Date, the
Termination Date, the Availability Period or any scheduled date fixed for any
payment of principal of, or interest on, any Loan, Reimbursement Obligation, fee
or other sum to be paid hereunder or waive any Event of Default described in
Section 9.1(a) hereof; (d) change the percentage of any of the Commitments or of
the aggregate unpaid principal amount of Obligations, or the percentage of
Lenders, which shall be required for the Lenders or any of them to take any
action under this Agreement; (e) change any provision contained in Sections
2.3(c), 7.8, 11.3 or 11.4 hereof or this Section 11.5, or (f) release any Person
from liability under a Guaranty or release all or substantially all of the
security, if any, for the Obligations or release collateral, if applicable
(exclusive of collateral, if any, with respect to which any Administrative Agent
is obligated to provide a release pursuant to this Agreement or any of the other
Loan Documents or by law) in any one (1) calendar year ascribed an aggregate
value on the most recent financial statements of the applicable Borrower
delivered to Administrative Agents in excess of US$1,000,000. Notwithstanding
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anything in this Section 11.5 to the contrary, no amendment, modification,
waiver or consent shall be made with respect to Article 10 without the consent
of U.S. Administrative Agent to the extent it affects U.S. Administrative Agent,
as U.S. Administrative Agent, Canadian Administrative Agent to the extent it
affects Canadian Administrative Agent, as Canadian Administrative Agent or
Norwegian Administrative Agent to the extent it affects Norwegian Administrative
Agent, as Norwegian Administrative Agent.
SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of Borrowers,
Administrative Agents and the Lenders and their respective successors and
assigns; provided, however, that no Borrower may assign or transfer any of its
rights or obligations hereunder without the prior written consent of all of the
Lenders, and any such assignment or transfer without such consent shall be null
and void. Each Lender may sell participations to any Person in all or part of
any Loan or Bankers' Acceptance, or all or part of its Notes, Commitments or
interests in Letters of Credit or Bankers' Acceptances, in which event, without
limiting the foregoing, the provisions of the Loan Documents shall inure to the
benefit of each purchaser of a participation; provided, however, the pro rata
treatment of payments, as described in Section 4.2 hereof, shall be determined
as if such Lender had not sold such participation. No Lender that sells one or
more participations to any Person shall be relieved by virtue of such
participation from any of its obligations to Borrowers under this Agreement. In
the event any Lender shall sell any participation, such Lender shall retain the
sole right and responsibility to enforce the obligations of Borrowers hereunder,
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement other than amendments,
modifications or waivers with respect to (i) any fees payable hereunder to the
Lenders, (ii) the amount of principal or the rate of interest payable on, or the
dates fixed for the scheduled repayment of principal of, any of the Obligations
and (iii) the release of the Liens on all or substantially all of the
collateral, if applicable.
Each U.S. Lender may assign to one or more U.S. Lenders or any other Person all
or a portion of its interests, rights and obligations under this Agreement;
provided, however, that (i) the aggregate amount of the Commitments of the
assigning U.S. Lender subject to each such assignment shall in no event be less
than US$5,000,000 and (ii) other than in the case of an assignment to another
U.S. Lender (that is, at the time of the assignment, a party hereto) or to an
Affiliate of such U.S. Lender or to a Federal Reserve Bank, the U.S.
Administrative Agent and, so long as no Event of Default shall have occurred and
be continuing, U.S. Borrower must both provide prior written consent, which
consent shall not be unreasonably withheld. Each Canadian Lender may assign to
one or more Canadian Lenders or any other Person all or a portion of its
interests, rights and obligations under this Agreement; provided, however, that
(i) the aggregate amount of the Commitments of the assigning Canadian Lender
subject to each such assignment shall in no event be less than C$5,000,000 and
(ii) other than in the case of an assignment to another Canadian Lender (that
is, at the time of the assignment, a party hereto) or to an Affiliate of such
Canadian Lender, the Canadian Administrative Agent and, so long as no Event of
Default shall have occurred and be continuing, each Canadian Borrower must
provide prior written consent, which consent shall not be unreasonably withheld.
Norwegian Lender may assign to one or more Norwegian
87
Lenders or any other Person all or a portion of its interests, rights and
obligations under this Agreement; provided, however, that (i) the aggregate
amount of the Commitments of the assigning Norwegian Lender subject to each such
assignment shall in no event be less than NOK50,000,000 and (ii) other than in
the case of an assignment to another Norwegian Lender (that is, at the time of
the assignment, a party hereto) or to an Affiliate of such Norwegian Lender, the
Norwegian Administrative Agent and, so long as no Event of Default shall have
occurred and be continuing, Norwegian Borrower must provide prior written
consent, which consent shall not be unreasonably withheld. As a condition
precedent to any such assignment, the parties to each such assignment shall
execute and deliver to the applicable Administrative Agent, for its acceptance
an Assignment and Acceptance in the form of Exhibit G hereto (each an
"Assignment and Acceptance") with blanks appropriately completed, together with
any Note or Notes subject to such assignment and a processing and recording fee
of US$5,000 paid by the assignee for the benefit of the applicable
Administrative Agent (for which Borrowers will have no liability). Upon such
execution, delivery and acceptance, from and after the effective date specified
in each Assignment and Acceptance, (A) the assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder and (B) the Lender thereunder
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto except in respect of provisions of this Agreement which survive payment
of the Obligations and termination of the Commitments). Notwithstanding anything
contained in this Agreement to the contrary, any Lender may at any time assign
all or any portion of its rights under this Agreement and the other Loan
Documents as collateral to a Federal Reserve Bank; provided that no such
assignment shall release such Lender from any of its obligations hereunder.
By executing and delivering an Assignment and Acceptance, the assignor and
assignee thereunder confirm to and agree with each other and the other parties
hereto as follows: (i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the applicable assignor makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any of
the other Loan Documents or any other instrument or document furnished pursuant
thereto; (ii) the applicable assignor makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any
Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto; (iii) the applicable assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 6.2 hereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) the
applicable assignee will, independently and without reliance upon any
Administrative Agent, the applicable assignor or any other Lender and based on
such
88
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 this
Agreement and the other Loan Documents; (v) the applicable assignee appoints and
authorizes U.S. Administrative Agent, Canadian Administrative Agent or Norwegian
Administrative Agent, as the case may be, to take such action as Administrative
Agent on its behalf and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to such Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto; and (vi)
the applicable assignee agrees that it will perform in accordance with their
terms all obligations that by the terms of this Agreement and the other Loan
Documents are required to be performed by it as a Lender.
The entries in the records of each applicable Administrative Agent as to each
Assignment and Acceptance delivered to it and the names and addresses of the
Lenders and the Commitments of, and principal amount of the Obligations owing
to, each Lender from time to time shall be conclusive, in the absence of
manifest error, and Borrowers, Administrative Agents and the Lenders may treat
each Person the name of which is recorded in the books and records of the
applicable Administrative Agent as a Lender hereunder for all purposes of this
Agreement and the other Loan Documents.
Upon the applicable Administrative Agent's receipt of an Assignment and
Acceptance executed by an assigning Lender and the assignee thereunder, together
with any Note or Notes subject to such assignment and the written consent to
such assignment (to the extent consent is required), such Administrative Agent
shall, if such Assignment and Acceptance has been completed with blanks
appropriately filled, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in its records and (iii) give prompt notice
thereof to the applicable Borrower. Within five Business Days after receipt of
notice, the applicable Borrower, at its own expense, shall execute and deliver
to the applicable Administrative Agent in exchange for the old Notes, new Notes
payable to the order of such assignee in the appropriate amounts and, if the
assigning Lender has retained Commitments hereunder, new Notes to the order of
the assigning Lender in the appropriate amounts. Such new Notes shall be dated
the effective date of such Assignment and Acceptance and shall otherwise be in
the forms required hereunder.
Any Lender may, in connection with any assignment or participation or proposed
assignment or participation pursuant to this Section 11.6, disclose to the
assignee or participant or proposed assignee or participant, any information
relating to any Borrower furnished to such Lender by or on behalf of any
Borrower, subject to Section 11.18.
LIMITATION OF INTEREST. Borrowers and the Lenders intend to strictly comply with
all applicable laws, including applicable usury laws (or the usury laws of any
jurisdiction, including Canada and Norway, whose usury laws are deemed to apply
to the Notes or any other Loan Documents. Accordingly, the provisions of this
Section 11.7 shall govern and control over every other provision of this
Agreement or any other Loan Document which conflicts or is inconsistent with
this Section, even if such provision declares that it controls. As used in this
Section, the term "interest" includes the aggregate of all charges, fees,
benefits or other compensation which constitutes interest under applicable law,
provided that, to the maximum extent permitted by applicable law, (a) any
non-principal payment shall be
89
characterized as an expense or as compensation for something other than the use,
forbearance or detention of money and not as interest, and (b) all interest at
any time contracted for, reserved, charged or received shall be amortized,
prorated, allocated and spread, in equal parts during the full term of the
Obligations. In no event shall Borrowers or any other Person be obligated to
pay, or any Lender have any right or privilege to reserve, receive or retain,
(a) any interest in excess of the maximum amount of nonusurious interest
permitted under the applicable laws (if any) of the United States or of any
other applicable jurisdiction, or (b) total interest in excess of the amount
which such Lender could lawfully have contracted for, reserved, received,
retained or charged had the interest been calculated for the full term of the
Obligations at the Ceiling Rate. The daily interest rates to be used in
calculating interest at the Ceiling Rate shall be determined to the extent
provided by applicable law by dividing the applicable Ceiling Rate per annum by
the number of days in the calendar year for which such calculation is being
made. None of the terms and provisions contained in this Agreement or in any
other Loan Document (including, without limitation, Section 9.1 hereof) which
directly or indirectly relate to interest shall ever be construed without
reference to this Section 11.7, or be construed to create a contract to pay for
the use, forbearance or detention of money at an interest rate in excess of the
Ceiling Rate. If the term of any Obligation is shortened by reason of
acceleration of maturity as a result of any Default or by any other cause, or by
reason of any required or permitted prepayment, and if for that (or any other)
reason any Lender at any time, including but not limited to, the stated
maturity, is owed or receives (and/or has received) interest in excess of
interest calculated at the Ceiling Rate, then and in any such event all of any
such excess interest shall be canceled automatically as of the date of such
acceleration, prepayment or other event which produces the excess, and, if such
excess interest has been paid to such Lender, it shall be credited pro tanto
against the then-outstanding principal balance of the applicable Borrower's
obligations to such Lender, effective as of the date or dates when the event
occurs which causes it to be excess interest, until such excess is exhausted or
all of such principal has been fully paid and satisfied, whichever occurs first,
and any remaining balance of such excess shall be promptly refunded to its
payor.
SURVIVAL. The obligations of Borrowers under Sections 2.3(c), 2.3(d), 7.8, 11.3
and 11.4 hereof and all other obligations of Borrowers in any other Loan
Document (to the extent stated therein), the obligations of each Issuer under
the last sentence of Section 2.3(b)(iii) and the obligations of the Lenders
under Section 10.5 and 11.7 hereof, shall, notwithstanding anything herein to
the contrary, survive the repayment of the Loans and Reimbursement Obligations
and the termination of the Commitments and the Letters of Credit.
CAPTIONS. Captions and section headings appearing herein are included solely
for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
COUNTERPARTS. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same agreement and any of
the parties hereto may execute this Agreement by signing any such counterpart.
VENUE; GOVERNING LAW. This Agreement and (except as therein provided) the other
Loan Documents are performable in Xxxxxx County, Texas, which shall be a proper
place of venue for suit on or in respect thereof. Each Borrower irrevocably
agrees that any legal proceeding
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in respect of this Agreement or the other Loan Documents shall be brought in
the district courts of Xxxxxx County, Texas or the United States District Court
for the Southern District of Texas, Houston Division (collectively, the
"Specified Courts"). Each Borrower hereby irrevocably submits to the
nonexclusive jurisdiction of the state and federal courts of the State of Texas.
Each Borrower hereby irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to any Loan Document
brought in any Specified Court, and hereby further irrevocably waives any claims
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Each Borrower further (1) agrees to designate
and maintain an agent for service of process in the State of Texas in connection
with any such suit, action or proceeding upon request by any Administrative
Agent and to deliver to Administrative Agents evidence thereof and (2)
irrevocably consents to the service of process out of any of the aforementioned
courts in any such suit, action or proceeding by the mailing of copies thereof
by certified mail, return receipt requested, postage prepaid, to such Borrower
at its address as provided in this Agreement or as otherwise provided by
applicable law. Nothing herein shall affect the right of any Administrative
Agent or any applicable Lender to commence legal proceedings or otherwise
proceed against any Borrower in any jurisdiction or to serve process in any
manner permitted by applicable law. Each Borrower agrees that a final judgment
in any such action or proceeding shall be conclusive to the extent allowed by
any applicable treaties under U.S., Canadian or Norwegian laws, as the case may
be, and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. THIS AGREEMENT AND (EXCEPT AS THEREIN PROVIDED)
THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE APPLICABLE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF AMERICA (IT
BEING EXPRESSLY UNDERSTOOD AND AGREED THAT EACH LENDER SHALL BE ENTITLED TO THE
BENEFITS OF ITS APPLICABLE FEDERAL LAW OF THE UNITED STATES OF AMERICA AND ITS
OTHER APPLICABLE LAW WITH RESPECT TO USURY LAWS) FROM TIME TO TIME IN EFFECT;
PROVIDED, HOWEVER, THAT, EXCEPT AS MAY BE REQUIRED UNDER APPLICABLE LAWS, THE
USURY LAWS OF THE STATE OF TEXAS OR THE UNITED STATES OF AMERICA SHALL NOT APPLY
TO ADVANCES MADE IN CANADA BY CANADIAN LENDERS TO CANADIAN BORROWER, BUT RATHER
THE USURY LAWS OF THE PROVINCE OF ALBERTA AND THE FEDERAL LAWS OF CANADA
APPLICABLE THEREIN SHALL GOVERN IN SUCH CONTEXT AND THE USURY LAWS OF THE STATE
OF TEXAS OR THE UNITED STATES OF AMERICA SHALL NOT APPLY TO ADVANCES MADE IN
NORWAY BY NORWEGIAN LENDERS TO NORWEGIAN BORROWER, BUT RATHER THE USURY LAWS OF
NORWAY APPLICABLE THEREIN SHALL GOVERN IN SUCH CONTEXT.
SEVERABILITY. Whenever possible, each provision of the Loan Documents shall be
interpreted in such manner as to be effective and valid under applicable law. If
any provision of any Loan Document shall be invalid, illegal or unenforceable in
any respect under any applicable law, the validity, legality and enforceability
of the remaining provisions of such Loan Document shall not be affected or
impaired thereby.
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INTEREST ACT (CANADA). Whenever interest is calculated on the basis of a year of
360 or 365 days, for the purposes of the Interest Act (Canada), the yearly rate
of interest which is equivalent to the rate payable hereunder is the rate
payable multiplied by the actual number of days in the year and divided by 360
or 365, as the case may be. All interest will be calculated using the nominal
rate method and not the effective rate method and the deemed reinvestment
principle shall not apply to such calculations.
JUDGMENT CURRENCY. The obligation of each Borrower to make payments on any
Obligation to the Lenders or to any Administrative Agent hereunder in any
currency (the "first currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted into any
other currency (the "second currency") except to the extent to which such tender
or recovery shall result in the effective receipt by the applicable Lender or
the applicable Administrative Agent of the full amount of the first currency
payable, and accordingly the primary obligation of each Borrower shall be
enforceable as an alternative or additional cause of action for the purpose of
recovery in the second currency of the amount (if any) by which such effective
receipt shall fall short of the full amount of the first currency payable and
shall not be affected by a judgment being obtained for any other sum due
hereunder.
CONFLICTS BETWEEN THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. In the event of
any conflict between the terms of this Agreement and the terms of any of the
other Loan Documents, the terms of this Agreement shall control.
LIMITATION ON CHARGES; SUBSTITUTE LENDERS; NON-DISCRIMINATION. Anything herein
notwithstanding:
No Borrower shall be required to pay to any Lender reimbursement with regard to
any taxes, costs or expenses described herein, unless such Lender notifies the
applicable Borrower of such taxes, costs or expenses within 90 days after the
date paid or incurred;
none of the Lenders shall be permitted to pass through to any Borrower taxes,
charges and costs described herein on a discriminatory basis (i.e., which are
not also passed through by such Lender to other customers of such Lender
similarly situated where such customer is subject to documents providing for
such pass through); and
if any Lender elects to pass through to any Borrower any material taxes, charge
or cost described herein or elects to terminate the availability of LIBOR
Borrowings for any material period of time, the applicable Borrower may, within
60 days after the date of such event and so long as no Default shall have
occurred and be continuing, elect to terminate such Lender as a party to this
Agreement; provided that, concurrently with such termination such Borrower shall
(i) if Administrative Agents and each of the other Lenders shall consent, pay
that Lender all principal, interest and fees and other amounts owed to such
Lender through such date of termination (and concurrently herewith such Lender
shall be released from all obligations with respect to Letter of Credit
Liabilities and U.S. Swing Line Loans) or (ii) have arranged for another
financial institution approved by Administrative Agents (such approval not to be
unreasonably withheld) as of such date, to become a substitute Lender for all
purposes under this Agreement in the manner provided in Section 11.6 (subject to
the payment of all amounts due to the Lender being terminated); provided further
that, prior to substitution for any Lender, the applicable Borrower shall have
given written notice to Administrative Agents of such intention and the Lenders
shall
92
have the option, but no obligation, for a period of 60 days after receipt of
such notice, to increase their Commitments in order to replace the affected
Lender in lieu of such substitution.
MULTIPLE PERSONS COMPRISING CANADIAN BORROWER. The parties recognize and
acknowledge that "Canadian Borrower" is comprised of more than one Person. All
duties and obligations imposed on "Canadian Borrowers" hereunder or under any of
the other Loan Documents shall be the joint and several duties and obligations
of each Person comprising "Canadian Borrower", notwithstanding the manner in
which any of such obligations shall be allocated among the Persons comprising
"Canadian Borrowers" for the purposes of such Persons' internal records and
accounts. Whenever this Agreement or any of the other Loan Documents requires
the execution and delivery of any document or instrument by "Canadian
Borrowers", such requirement may be satisfied by execution and delivery by any
single one of the Persons comprising the applicable "Canadian Borrowers", and
execution and delivery of any document or instrument by any single one of the
Persons comprising "Canadian Borrowers" shall be binding upon each of the
Persons comprising "Canadian Borrowers".
CONFIDENTIALITY. Each of the Administrative Agents and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(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; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or purchaser of a
participation pursuant to Section 11.6 hereof, any direct or indirect
contractual counterparty or prospective counterparty (or such contractual
counterparty's or prospective counterparty's professional advisor) to any credit
derivative transaction relating to obligations of the Obligors; (g) with the
consent of the Parent; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis
from a source other than the Parent or its Subsidiaries. In addition, the
Administrative Agents and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to the
Administrative Agents and the Lenders in connection with the administration and
management of this Agreement and the other Loan Documents. For the purposes of
this Section, "Information" means all information received from any Obligor
relating to such Obligor or its business, other than any such information that
is available to any Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by any Obligor; provided that, in the case of
information received from a Loan Party after the date hereof, such information
is clearly identified in writing at the time of delivery as confidential. 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
93
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
94
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
NATIONAL-OILWELL, L.P.,
a Delaware limited partnership, as U.S. Borrower
By: Its Sole General Partner, NOW Oilfield
Services, Inc., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
Name:
Title:
NATIONAL-OILWELL CANADA LTD.,
an Alberta corporation, as a Canadian Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
Name:
Title:
DRECO ENERGY SERVICES LTD.,
an Alberta corporation, as a Canadian Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
Name:
Title:
NATIONAL OILWELL NORWAY HOLDINGS,
A.S., a Norwegian corporation,
as Norwegian Borrower
By: /s/ Xxxx Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Address for Notices:
National-Oilwell, Inc.
00000 Xxxxxxxx Xxx.
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
with copies to:
Dreco Energy Services Ltd.
0000 00xx Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx X0X 0XX XXXXXX
Attention: Xxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
National-Oilwell Canada Ltd.
0000, 000 - 0xx Xxx. XX
Xxxxxxx, Xxxxxxx X0X 0X0 XXXXXX
Attention: Mr. Xxxx Arnelien
Telecopy No.: (000) 000-0000
and
National Oilwell Norway Holdings, A.S.
Xxxxxxxxx 0
X.X. Xxx 0000
0000 Xxxxxxxxx Xxxxxx
Attn: Xx. Xxxx Xxxxx
Telecopy No.: 011-47-51-81-81-70
XXXXX FARGO BANK TEXAS, NATIONAL
ASSOCIATION, as U.S. Administrative Agent, as
a U.S. Lender, and as an Issuing Bank
US$30,000,000 - U.S. Facility By: /s/ T. Xxxx Xxxxx
Name: T. Xxxx Xxxxx
Title: Vice President
Address for Notices:
0000 Xxxxxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
THE BANK OF NOVA SCOTIA,
as Canadian Administrative Agent,
as a U.S. Lender and as a Canadian Lender
US$5,000,000 - U.S. Facility By: /s/ Xxxxxxx Xxx
US$20,000,000 - Canadian Name: Xxxxxxx Xxx
Facility Title: Managing Director
Address for Notices:
Scotia Capital - Corporate Banking
Oil, Gas & Pipelines
Suite 2000, Scotia Centre
000 Xxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Managing Director
Telecopy No.: 000-000-0000
DEN NORSKE BANK ASA,
as Norwegian Administrative Agent,
as a U.S. Lender and as a Norwegian Lender
US$5,000,000 - U.S. Facility By: /s/ Xxxxxx X. Xxxx
US$20,000,000 - Norwegian Name: Xxxxxx X. Xxxx
Facility Title: Senior Vice President
By: /s/ Hans Jorgen Ormar
Name: Hans Jorgen Ormar
Title: Vice President
Address for Notices:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Ormar
Telecopy No.: 000-000-0000
COMERICA BANK-TEXAS
as a U.S. Lender
US$20,000,000 - U.S. Facility By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Senior Vice President
Address for Notices:
________________________________________________
________________________________________________
________________________________________________
Attention:______________________________________
Telecopy No.:___________________________________
THE BANK OF NEW YORK,
as a U.S. Lender
US$20,000,000 - U.S. Facility By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address for Notices:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telecopy No.: 000-000-0000
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a U.S. Lender
US$20,000,000 - U.S. Facility By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Managing Director
Address for Notices:
Wachovia Securities, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxx
Telecopy No.: (000) 000-0000
BANK ONE, NA, (main office Chicago)
as a U.S. Lender
US$12,500,000 - U.S. Facility By: /s/ J. Xxxxxxx Xxxxx, Xx.
Name: J. Xxxxxxx Xxxxx, Xx.
Title: Director, Capital Markets
Address for Notices:
________________________________________________
________________________________________________
________________________________________________
Attention:______________________________________
Telecopy No.:___________________________________
BARCLAYS BANK PLC,
as a U.S. Lender
US$12,500,000 - U.S. Facility By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Director
Address for Notices:
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx, 11th Floor
Telecopy No.: 000-000-0000
SOUTHWEST BANK OF TEXAS, N.A.,
as a U.S. Lender
US$10,000,000 - U.S. Facility By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Address for Notices:
0000 Xxxx Xxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy No.: 000-000-0000
THE BANK OF NOVA SCOTIA,
as a U.S. Lender
US$5,000,000 - U.S. Facility By: /s/X. Xxxx
Name: X. Xxxx
Title: Senior Manager Loan Operations
Address for Notices:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, XX
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy No.: 000-000-0000
