EXHIBIT 4.3
NORSKE XXXX CANADA LIMITED ET AL
AND
TD SECURITIES AND
RBC CAPITAL MARKETS
AS ARRANGERS
AND
THE LENDERS FROM TIME TO TIME
PARTY TO THIS AGREEMENT
AND
THE TORONTO-DOMINION BANK
AS ADMINISTRATION AGENT
AND
ROYAL BANK OF CANADA
AS SYNDICATION AGENT
--------------------------------------------------------------------------------
CDN. $350,000,000 CREDIT FACILITY
CREDIT AGREEMENT
DATED AS OF 19 JULY 2002
--------------------------------------------------------------------------------
XXXXXX XXXXXX GERVAIS LLP
XXXXXX XXXXXXX
THIS CREDIT AGREEMENT is made as of 19 July 0000
X X X X X X X:
NORSKE XXXX CANADA LIMITED, NORSKE XXXX CANADA FINANCE
LIMITED AND THE OTHER RESTRICTED PARTIES FROM TIME TO TIME
- and -
TD SECURITIES AS LEAD ARRANGER AND BOOK MANAGER AND
RBC CAPITAL MARKETS AS CO-LEAD ARRANGER
(collectively, the "Arrangers")
- and -
THE LENDERS FROM TIME TO TIME PARTY
TO THIS AGREEMENT
(the "Lenders")
- and -
THE TORONTO-DOMINION BANK
in its capacity as Administration Agent
(the "Agent")
- and -
ROYAL BANK OF CANADA
in its capacity as Syndication Agent
(the "Syndication Agent")
RECITALS:
A. Norske Xxxx Canada Finance Limited (the "Borrower") has requested the
Arrangers to arrange a senior secured credit facility of up to a maximum amount
of Cdn. $350,000,000 to be used to finance the general corporate purposes of the
Restricted Parties.
B. The Lenders have each agreed to provide their respective commitments to the
Borrower, subject to the terms and conditions of this Agreement.
C. The parties are entering into this Agreement to provide for the terms of the
credits.
THEREFORE, for value received, and intending to be legally bound
by this Agreement, the parties agree as follows:
- 2 -
ARTICLE I
INTERPRETATION
1.1 DEFINED TERMS
In this Agreement, unless something in the subject matter or
context is inconsistent therewith:
1.1.1 "ACCEPTING LENDER" has the meaning defined in Section 2.4.3.
1.1.2 "ADJUSTED BALANCE SHEET" means NSCL's consolidated balance sheet
at any time, prepared in accordance with GAAP and adjusted to
exclude the assets, liabilities and shareholders' equity of all
persons that are not Restricted Parties.
1.1.3 "ADVANCE" means an availment of a Credit by the Borrower by way of
Prime Rate Advance, Base Rate Advance, acceptance of Bankers'
Acceptances, L/C or LIBOR Advance, deemed Advances and
conversions, renewals and rollovers of existing Advances, and any
reference relating to the amount of Advances shall mean the sum of
all outstanding Prime Rate Advances, Base Rate Advances and LIBOR
Advances, plus the face amount of all outstanding Bankers'
Acceptances and L/Cs.
1.1.4 "AGENT" means TD in its role as administration agent for the
Lenders, and any successor administration agent appointed in
accordance with this Agreement.
1.1.5 "AGREEMENT", "HEREOF", "HEREIN", "HERETO", "HEREUNDER" or similar
expressions mean this Agreement and any Schedules hereto, as
amended, supplemented, restated and replaced from time to time.
1.1.6 "APPLICABLE FEE RATE" means, on any day, in respect of any Advance
by way of Bankers' Acceptance or L/C, as the case may be, the
applicable rate (expressed as a percentage per annum) set forth
below, and "APPLICABLE MARGIN" means, on any day, with respect to
any Prime Rate Advance, Base Rate Advance or LIBOR Advance, the
applicable margin (expressed as a percentage per annum) set forth
below, in each case based upon the Reference Debt Ratings on that
day.
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5 Level 6
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
Xxxxx'x Baa1 or above Xxx0 Xxx0 Xx0 Xx0 Less than Ba2
S&P BBB+ or above BBB BBB- BB+ BB Less than BB
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
Margin for 0 0.125% 0.25% 1.25% 1.625% 2.25%
Prime Rate Advances/
Base Rate Advances
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
- 3 -
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 0 Xxxxx 5 Level 6
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
Margin for 1.00% 1.125% 1.25% 2.25% 2.625% 3.25%
LIBO Rate Advances
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
Rate for 1.00% 1.125% 1.25% 2.25% 2.625% 3.25%
Bankers'
Acceptance Fee/
L/C Fee
------------------------ --------------- ------------- ------------- -------------- ------------- ---------------
At the date of this Agreement, the Applicable Fee Rate and
Applicable Margin are based on Level 4.
For purposes hereof, (i) if the ratings established (or deemed to
have been established, as provided in clause (ii) below) by
Xxxxx'x and S&P fall within different Levels as set out above, the
Applicable Fee Rate and Applicable Margin will be the higher of
the alternative Applicable Fee Rates and Applicable Margins, (ii)
if at any time there is only one of Xxxxx'x and S&P which has in
effect a Reference Debt Rating (other than (a) because such
ratings agency is no longer in the business of rating corporate
debt obligations, (b) as a result of a change in the rating system
of Xxxxx'x or S&P or (c) for any other reason reasonably
determined by the Agent to be outside of the control of and
unrelated to NSCL), then the Applicable Fee Rate and Applicable
Margin shall be determined as if each rating agency had
established a Reference Debt Rating in Level 6 and (iii) if any
rating established (or deemed to have been established, as
provided in clause (ii) above) by Xxxxx'x or S&P is changed (other
than as a result of a change in the rating system of Xxxxx'x or
S&P), the change shall be effective as of the date on which it is
first publicly announced by the applicable rating agency. Each
change in the Applicable Fee Rate and Applicable Margin 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. On the effective date of each
change, the Borrower shall pay any additional amount attributable
to a higher Applicable Fee Rate with respect to a Bankers'
Acceptance or an L/C outstanding on that date for the remaining
term of the Bankers' Acceptance or L/C, or the Lenders shall remit
to the Agent, who shall refund to the Borrower, any amount
attributable to a lower Applicable Fee Rate. If at any time only
one of Xxxxx'x and S&P has in effect a Reference Debt Rating (x)
because the rating system of Xxxxx'x or S&P has changed, (y)
because such rating agency has ceased to be in the business of
rating corporate debt obligations, or (z) for any other reason
reasonably determined by the Agent to be outside of the control of
and unrelated to NSCL, NSCL and the Lenders (acting through the
Agent) shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating
system or the non-availability of ratings from such rating agency
and, pending the effectiveness of any such amendment, the
Applicable Fee Rate and Applicable Margin shall be determined by
reference to the Level most recently in effect.
- 4 -
1.1.7 "ARRANGERS" means, collectively, TD Securities as Lead Arranger
and Book Manager and RBC Capital Markets as Co-Lead Arranger.
1.1.8 "ASSIGNMENT AGREEMENT" means an agreement in the form of Schedule
D to this Agreement.
1.1.9 "BA DISCOUNT PROCEEDS" means, in respect of any Bankers'
Acceptance, an amount calculated on the applicable Drawdown Date
which is (rounded to the nearest full cent, with one-half of one
cent being rounded up) equal to the face amount of such Bankers'
Acceptance multiplied by the price, where the price is calculated
by dividing one by the sum of one plus the product of (i) the BA
Discount Rate applicable thereto expressed as a decimal fraction
multiplied by (ii) a fraction, the numerator of which is the term
of such Bankers' Acceptance and the denominator of which is 365,
which calculated price will be rounded to the nearest multiple of
0.001%.
1.1.10 "BA DISCOUNT RATE" means, (a) with respect to any Bankers'
Acceptance accepted by a Lender named on Schedule I to the BANK
ACT (Canada), the average rate that appears on the Reuters Screen
CDOR Page at or about 10:00 a.m. (Toronto time) on the applicable
Drawdown Date, for bankers' acceptances having an identical
maturity date to the maturity date of such Bankers' Acceptance,
and (b) with respect to any Bankers' Acceptance accepted by any
other Lender, the rate determined established in accordance with
(a) above plus 0.07% per annum.
1.1.11 "BA EQUIVALENT LOAN" has the meaning defined in Section 5.15.5.
1.1.12 "BANKERS' ACCEPTANCE" means a depository xxxx as defined in the
DEPOSITORY BILLS AND NOTES ACT (Canada) in Canadian Dollars that
is in the form of an order signed by the Borrower and accepted by
a Lender pursuant to this Agreement or, for Lenders not
participating in clearing services contemplated in that Act, a
draft or xxxx of exchange in Canadian Dollars that is drawn by the
Borrower and accepted by a Lender pursuant to this Agreement.
Orders that become depository bills, drafts and bills of exchange
are sometimes collectively referred to in this Agreement as
"orders." Any depository xxxx may be made payable to "CDS & Co."
and deposited with the Canadian Depository for Securities Limited.
1.1.13 "BANKERS' ACCEPTANCE FEE" means the amount calculated by
multiplying the face amount of each Bankers' Acceptance by the
rate for the Bankers' Acceptance Fee specified in Section 2.5, and
then multiplying the result by a fraction, the numerator of which
is the duration of its term on the basis of the actual number of
days to elapse from and including the date of acceptance of a
Bankers Acceptance by the Lender up to but excluding the maturity
date of the Bankers' Acceptance and the denominator of which is
365.
1.1.14 "BASE RATE" means, on any day, the greater of:
- 5 -
(a) the annual rate of interest (expressed as a percentage per
annum on the basis of a 365 day year) announced by TD on
that day as its reference rate for commercial loans made in
Canada in US Dollars; and
(b) the Federal Funds Effective Rate plus 1% per annum.
1.1.15 "BASE RATE ADVANCE" means an Advance in US Dollars bearing
interest based on the Base Rate and includes deemed Base Rate
Advances provided for in this Agreement.
1.1.16 "BORROWER" means Norske Xxxx Canada Finance Limited, a company
governed by the COMPANY ACT (British Columbia).
1.1.17 "BORROWING BASE" means at any time, the aggregate of:
(a) 75% of the net book value of accounts receivable of NSCL,
other than accounts receivable owing by employees of any
Restricted Party, based on the Adjusted Balance Sheet; and
(b) an amount equal to the lesser of item (a) above and 50% of
the aggregate inventory of NSCL, other than work in
process, based on the Adjusted Balance Sheet.
1.1.18 "BORROWING BASE CERTIFICATE" means a certificate of NSCL in the
form of Schedule G.
1.1.19 "BRANCH OF ACCOUNT" means the Agency Account, Xxxxxxx-Xxxxxxxx
Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx.
1.1.20 "BUSINESS DAY" means a day of the year, other than Saturday or
Sunday, on which (a) the Agent is open for business at its
executive offices in Toronto, Ontario and at its main branch in
Vancouver, British Columbia (or in other locations specified by
any successor to TD as Agent) and (b) in respect of notices,
determinations, payments or Advances relating to LIBOR Advances,
the Agent is open for business at its principal offices in London,
England. Notwithstanding the foregoing, if the Agent will be open
in some locations referred to above and closed in others on a
particular day, and the Agent in consultation with NSCL determines
that the closing on that day will not adversely affect completion
of relevant transactions in accordance with customary banking
market and trading practices, the Agent may, on reasonable notice
to NSCL and the Lenders, specify the particular day to be a
Business Day.
1.1.21 "CANADIAN DOLLARS", "CDN. DOLLARS", "CDN. $" and "$" mean lawful
money of Canada.
1.1.22 "CAPITAL STOCK" means, with respect to any person, any and all
present and future shares, partnership or other interests,
participations or other equivalent
- 6 -
rights in the person's capital, however designated and whether
voting or non-voting.
1.1.23 "CHANGE OF CONTROL DEFAULT" means a change of control of NSCL
which results in the Reference Debt Rating by Xxxxx'x or S&P being
lowered by three or more levels, a level being, for example, the
difference between A and A+. For the purpose of this Agreement, a
change in control of NSCL shall be deemed to have occurred only in
the following circumstances:
(a) if the Existing Major Shareholder then directly or
indirectly holds Capital Stock of NSCL to which is attached
30% or more of the votes that may be cast to elect
directors of NSCL or 30% or more of the total shareholders'
equity of NSCL, a change of control shall be deemed to have
occurred if Capital Stock of NSCL is held by or for the
benefit of any person, or group of persons acting jointly
or in concert, other than by way of security only, in a
quantity to which is attached more of the votes or more of
the shareholders' equity than are attached to the Capital
Stock of NSCL then held by the Existing Major Shareholder,
or
(b) if the Existing Major Shareholder does not then directly or
indirectly hold Capital Stock of NSCL to which is attached
30% or more of the votes that may be cast to elect
directors of NSCL or 30% or more of the total shareholders'
equity of NSCL, a change of control shall be deemed to have
occurred if Capital Stock of NSCL to which is attached 30%
or more of the votes that may be cast to elect directors of
NSCL or 30% or more of the total shareholders' equity of
NSCL is held by or for the benefit of any person, or group
of persons acting jointly or in concert, other than by way
of security only.
1.1.24 "COLLATERAL" means cash, a bank draft or a letter of credit, all
in a form, and in the case of a letter of credit, from an issuer,
satisfactory to the Lenders, acting reasonably.
1.1.25 "COMMITMENT" means in respect of each Lender from time to time,
the commitment to make Advances to the Borrower in the Lender's
Proportionate Share of the maximum amount of any Credit as set out
on Schedule E and, where the context requires, the maximum amount
of Advances which the Lender has made or committed to make.
1.1.26 "COMPLIANCE CERTIFICATE" means a certificate in the form of
Schedule C.
1.1.27 "CONSOLIDATED NET TANGIBLE ASSETS" means the sum of the net book
value of the assets of the Restricted Parties less, without
duplication, the sum of (a) the net book value of the Restricted
Parties' goodwill, trademarks, copyrights, patents, trade names,
organization expense, treasury stock, deferred charges,
unamortized debt discount expense and other similar intangible
assets and (b) the
- 7 -
net book value of the Restricted Parties' liabilities (including
deferred taxes but excluding Funded Debt) and minority interests.
1.1.28 "CONSTATING DOCUMENTS" means, with respect to any Restricted
Party, its articles or certificate of incorporation, amendment,
amalgamation or continuance, memorandum of association, by-laws,
partnership agreement, limited liability company agreement or
other similar document, and all unanimous shareholder agreements,
other shareholder agreements, voting trust agreements and similar
arrangements applicable to the Restricted Party's Capital Stock,
all as amended from time to time.
1.1.29 "CONTRACTS" means agreements, franchises, leases, easements,
servitudes, privileges and other rights, other than Permits.
1.1.30 "CONTRIBUTING LENDER" shall have the meaning defined in Section
9.3.2.
1.1.31 "CREDITS" means collectively the revolving credit of up to
$297,500,000 or the US Dollar equivalent thereof (designated as
"CREDIT 1") and the revolving credit of up to $52,500,000 or the
US Dollar equivalent thereof (designated as "CREDIT 2") which are
established by this Agreement, and "CREDIT" means either of them.
1.1.32 "CREDIT DOCUMENTS" means this Agreement, the Security and all
other documents relating to the Credits, or any of them.
1.1.33 "DEBT" means, with respect to any person, without duplication and
without regard to any interest component thereof (whether actual
or imputed) that is not due and payable, the aggregate of the
following amounts, each calculated in accordance with GAAP unless
the context otherwise requires:
(a) all obligations (including, without limitation, by way of
overdraft and drafts or orders accepted representing
extensions of credit) that would be considered to be
indebtedness for borrowed money, and all obligations
(whether or not with respect to the borrowing of money)
that are evidenced by bonds, debentures, notes or other
similar instruments;
(b) the BA Discount Proceeds of all outstanding Bankers'
Acceptances, less the Bankers' Acceptance Fees in respect
thereof, and the equivalent amounts in respect of any
similar instruments not issued under this Agreement;
(c) all liabilities upon which interest charges are customarily
paid by that person;
(d) any Capital Stock of that person (or of any Subsidiary of
that person that is not held by that person or by a
Subsidiary of that person that is wholly owned, directly or
indirectly) which Capital Stock, by its terms (or by the
terms of any security into which it is convertible or for
which it is
- 8 -
exchangeable at the option of the holder), or upon the
happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, for cash or securities
constituting Debt;
(e) all capital lease obligations, synthetic lease obligations,
obligations under sale and leaseback transactions and
purchase money obligations;
(f) all obligations for the deferred purchase price of Property
or services acquired by such person or any predecessor and
all obligations of such person under any conditional sale
or other title retention agreement with respect to any
Property;
(g) all obligations secured by any Encumbrance upon or in any
Property owned by such person whether or not such person
has assumed or become liable for the payment of such
obligations;
(h) the Market Value of all Derivatives in respect of which the
Market Value is negative from that person's perspective
(that is, the person is "out of the money");
(i) the amount of all contingent liabilities in respect of L/Cs
and other letters of credit and letters of guarantee;
(j) the amount of all contingent liabilities in respect of
performance bonds and surety bonds, and any other guarantee
or other contingent liability of any part or all of an
obligation of a person other than a Restricted Party, in
each case only to the extent that the guarantee or other
contingent liability is required by GAAP to be treated as a
liability on a balance sheet of the guarantor or person
contingently liable; and
(k) the amount of the contingent liability under any guarantee
(other than by endorsement of negotiable instruments for
collection or deposit in the ordinary course of business)
in any manner of any part or all of an obligation of
another person of the type included in any of the other
items in this definition;
provided that trade payables and accrued liabilities that are
current liabilities incurred in the ordinary course of business do
not constitute Debt. The amount of a person's Debt as calculated
above shall be reduced by the Market Value of all Derivatives
entered into by that person with a counterparty in respect of
which the Market Value is positive, but the reduction for any
counterparty shall not exceed the Market Value of any Derivatives
entered into with the same counterparty that have a negative
Market Value, except if the counterparty is a Lender, the
reduction shall not exceed the aggregate of the principal amount
of the Obligations owed to the same Lender and the Market Value of
all Derivatives entered into by that person with the same Lender
in respect of which the Market Value is negative.
- 9 -
1.1.34 "DECLINING LENDER" has the meaning defined in Section 2.4.1.
1.1.35 "DEFAULTING LENDER" has the meaning defined in Section 9.3.2.
1.1.36 "DERIVATIVE" means any transaction of a type commonly considered
to be a derivative, any combination of such transactions or any
agreement relating to any such transaction or combination of
transactions, in each case whether relating to one or more of
interest, currencies, commodities, securities or other matters,
including but not limited to (a) any cap, collar, floor or option,
(b) any forward contract, and (c) any rate swap, basis swap,
commodity swap, cross-currency swap or other swap or contract for
differences.
1.1.37 "DERIVATIVE AGENT" means a Lender which may be appointed as
contemplated in Schedule L.
1.1.38 "DESIGNATED ACCOUNT" means, in respect of any Advance, the account
or accounts maintained by the Borrower at a branch of RBC in
Vancouver, British Columbia that the Borrower designates in its
notice requesting an Advance.
1.1.39 "DRAWDOWN DATE" means the date, which shall be a Business Day, of
any Advance.
1.1.40 "EBITDA" means, for any relevant period, an amount equal to NSCL's
net income or net loss for the period, calculated on a
consolidated basis;
(a) plus, amounts deducted in calculating net income or net
loss in respect of depreciation and amortization;
(b) plus, Total Interest Expense;
(c) plus, upfront fees paid to the Agent, Arrangers or Lenders
in connection with this Agreement;
(d) plus, amounts deducted in calculating net income or net
loss in respect of income taxes (but not capital taxes
except those that are considered by GAAP to be income
taxes), whether or not deferred;
(e) minus, any non-cash items increasing consolidated net
income for such period;
(f) plus, any non-cash items decreasing consolidated net income
for such period;
(g) plus, unusual non-cash charges which require an accrual of,
or a reserve for, cash charges for any future period;
(h) minus, all cash payments during such period relating to
non-cash charges which were added back in determining
EBITDA in any prior period;
- 10 -
and excluding:
(i) any gain or loss attributable to the sale, conversion,
abandonment or other disposition of Property, other than
sales of inventory in the ordinary course of business; and
(j) gains resulting from the write-up of Property and losses
resulting from the write-down of Property (other than
allowances for doubtful accounts receivable and any
inventory adjustments); and
(k) any gain or loss on the repurchase or redemption of any
securities (including in connection with the early
retirement or defeasance of any Debt); and
(l) any foreign exchange gain or loss (other than foreign
exchange gains or losses in respect of accounts receivable
and accounts payable and xxxxxx or forward exchange
contracts in respect of revenues, in each case that are
realized in the ordinary course of business); and
(m) any income or loss attributable to discontinued operations;
and
(n) any other extraordinary items; and
(o) net income or net loss and other amounts specified in the
other items of this definition that are attributable to
persons other than Restricted Parties or to minority
interests in Restricted Parties;
all of which shall be calculated without duplication in accordance
with GAAP unless otherwise expressly described. If NSCL has
established a new Restricted Party or has disposed of a Restricted
Party or material Property out of the ordinary course of business
during the relevant period, EBITDA shall be calculated in
accordance with GAAP (or otherwise on a basis satisfactory to the
Agent, acting reasonably), as if the new Restricted Party had been
a Restricted Party during the entire period or the disposition had
occurred at the beginning of the period. If NSCL has acquired
material Property out of the ordinary course of business during
the relevant period for which there are separate historical
financial statements, EBITDA shall be calculated in accordance
with GAAP (or otherwise on a basis satisfactory to the Agent,
acting reasonably), as if the acquisition had occurred at the
beginning of the period.
1.1.41 "ENCUMBRANCE" means any mortgage, debenture, pledge, hypothec,
deposit, lien, charge, assignment by way of security, consignment,
capital lease, hypothecation, security interest or other security
agreement, trust or arrangement having the effect of security for
the payment of any debt, liability or obligation, or any other
adverse claim affecting Property, and "ENCUMBRANCES",
"ENCUMBRANCER", "ENCUMBER" and "ENCUMBERED" shall have
corresponding meanings.
- 11 -
1.1.42 "ENVIRONMENTAL LAWS" means all applicable Requirements of Law,
Permits and guidelines or requirements of any governmental body
(whether or not having the force of law, and including consent
decrees as to which any Restricted Party is a party or otherwise
subject, and administrative orders which may affect a Restricted
Party) relating to public health and safety, protection of the
environment, the release of Hazardous Materials or occupational
health and safety.
1.1.43 "EVENT OF DEFAULT" has the meaning defined in Section 8.1.
1.1.44 "EXCHANGE RATE" means, on any day, for the purpose of calculations
under this Agreement, the amount of Canadian Dollars into which US
Dollars may be converted, or VICE VERSA, using the Agent's mid
rate (i.e. the average of the Agent's spot buying and selling
rates) for converting the first currency to the other currency at
the relevant time on that day. If the Exchange Rate is being
determined at any time in respect of a previous day, the noon spot
rate of the Bank of Canada on that previous day shall be used
instead of the Agent's mid rate.
1.1.45 "EXCLUDED TAXES" means any Taxes now or hereafter imposed, levied,
collected, withheld or assessed on a Lender by Canada or any other
jurisdiction in which that Lender is subject to Tax as a result of
the Lender (i) carrying on a trade or business in such
jurisdiction or being deemed to do so, or having a permanent
establishment in such jurisdiction; (ii) being organized under the
laws of such jurisdiction; (iii) being resident or deemed to be
resident in such jurisdiction, (iv) not dealing at arm's length
with the Restricted Parties or any other Lender or (v) being
connected with the jurisdiction imposing such Taxes otherwise than
by the mere advancement of credit hereunder, the receipt of
payments under the Credit Documents or the enforcement of rights
under the Credit Documents; but does not include any sales, goods
or services Tax payable under the laws of any such jurisdiction
with respect to any goods or services made available by a Lender
to the Borrower under this Agreement or any withholding tax.
1.1.46 "EXISTING MAJOR SHAREHOLDER" means the principal shareholder of
NSCL referred to on page 10 of NSCL's short form prospectus dated
16 May 2002.
1.1.47 "EXISTING SPECIAL DERIVATIVES" has the meaning defined in Schedule
L.
1.1.48 "FEDERAL FUNDS EFFECTIVE RATE" means for any period, a fluctuating
interest rate per annum equal, for each day during such period, to
the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by Federal Funds brokers as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York or, for any day on which that
rate is not published for that day by the Federal Reserve Bank of
New York, the average of
- 12 -
the quotations for that day for such transactions received by the
Agent from three Federal Funds brokers of recognized standing.
1.1.49 "FEE AGREEMENT" means the agency fee agreement between the
Borrower and the Agent dated as of 19 July 2002, as amended,
supplemented, restated and replaced from time to time.
1.1.50 "FUNDED DEBT" means all Debt of NSCL on a consolidated basis other
than Debt referred to in item (d) of the definition of Debt and
Debt in respect of which no interest, fee or other compensation is
charged and no Encumbrance is held.
1.1.51 "FUNDED DEBT RATIO" means at any time, the ratio calculated by
dividing NSCL's (a) Funded Debt by (b) the aggregate of its Funded
Debt plus its shareholders equity determined in accordance with
GAAP on a consolidated basis.
1.1.52 "GAAP" means Canadian generally accepted accounting principles,
including such principles recommended by the Canadian Institute of
Chartered Accountants as contained in the "CICA Handbook" as
amended, replaced or restated from time to time and, in the
absence of a specific recommendation contained in the "CICA
Handbook," accounting principles generally accepted in practice in
Canada.
1.1.53 "HAZARDOUS MATERIALS" means:
(a) any oil, flammable substances, explosives, radioactive
materials, hazardous wastes or substances, toxic wastes or
substances or any other wastes, contaminates, materials or
pollutants which:
(i) pose a hazard to any real property, or to persons on
or about any real property; or
(ii) cause any real property to be in violation of any
Requirement of Law;
(b) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other
equipment which contain dielectric fluid containing levels
of polychlorinated biphenyls in excess of limits prescribed
by Requirements of Law, or radon gas;
(c) any chemical, material or substance defined as or included
in the definition of "dangerous goods", "deleterious
substance", "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous wastes",
"restricted hazardous waste", "toxic substances", "waste"
or words of similar import under any Law, including the
Canadian Environmental Protection Act (Canada), Fisheries
Act (Canada), Transportation of
- 13 -
Dangerous Goods Act (Canada), Canada Water Act (Canada) and
any applicable provincial legislation; and
(d) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any
governmental body or which may or could pose a hazard to
the occupants of any real property or any other person
coming upon any real property or adjacent or surrounding
property;
and references to a "release" of Hazardous Materials include
spilling, leaking, pumping, pouring, emitting emptying,
discharging, injecting, escaping, leaching, disposing, dumping or
other form of release, or permitting any of the foregoing to
occur.
1.1.54 "INTELLECTUAL PROPERTY" means patents, trademarks, service marks,
trade names, copyrights, trade secrets, industrial designs and
other similar rights.
1.1.55 "INTERBANK REFERENCE RATE" means, in respect of any currency, the
interest rate expressed as a percentage per annum which is
customarily used by the Agent when calculating interest due by it
or owing to it arising from correction of errors in transactions
in that currency between it and other chartered banks.
1.1.56 "INTERCREDITOR AGREEMENTS" means any intercreditor agreements that
may be entered into from time to time to provide for the terms of
subordination of any Debt in favour of the Obligations, or other
relationship between the Lenders and the holders of other Debt,
including, without limitation, any intercreditor agreements
entered into with the holders of 1999 Notes, 2001 Notes, Permitted
Senior Secured Indebtedness and Permitted Subordinated Secured
Indebtedness, each as amended, supplemented, restated and replaced
from time to time.
1.1.57 "INTEREST COVERAGE RATIO" means, at any time, the ratio calculated
by dividing (a) EBITDA for NSCL's four most recently completed
fiscal quarters by (b) Total Interest Expense for that period. For
the purpose of calculating the Interest Coverage Ratio for the
four fiscal quarters ending 30 June 2002, NSCL's EBITDA and Total
Interest Expense for the fiscal quarter ended 30 September 2001
shall be deemed to be $67,600,000 and $19,400,000, respectively,
reflecting a PRO FORMA calculation taking into account NSCL's
acquisition of Pacifica Papers Inc. during that quarter.
1.1.58 "INTEREST PAYMENT DATE" means (in connection with Prime Rate
Advances and Base Rate Advances) the first day of each calendar
month or if that is not a Business Day, the Business Day next
following.
1.1.59 "ISSUING BANK" means the Lender making Advances under Credit 2,
which is RBC unless changed in accordance with Section 2.1.1.
1.1.60 "L/C" means a standby letter of credit, letter of guarantee or
commercial letter of credit in a form satisfactory to the Issuing
Bank issued by the Issuing Bank at
- 14 -
the request of the Borrower in favour of a third party to secure
the payment or performance of an obligation of a Restricted Party
to the third party.
1.1.61 "L/C FEE" means the amount calculated by multiplying the face
amount of each L/C by the rate for the L/C Fee specified in
Section 2.5, and then multiplying the result by a fraction, the
numerator of which is the duration of its term on the basis of the
actual number of days to elapse from and including the date of
issuance of an L/C by the Issuing Bank up to but excluding the
expiry date of the L/C and the denominator of which is 365.
1.1.62 "LENDERS" means each of the persons listed on Schedule E and other
lenders that agree from time to time to become Lenders in
accordance with Article X of this Agreement, and "LENDER" means
any one of the Lenders.
1.1.63 "LIBO RATE" means, for any LIBOR Period and LIBOR Advance, either:
(a) the rate of interest (expressed as an annual rate on the
basis of a 360 day year) determined by the Agent to be the
arithmetic mean (rounded up to the nearest 0.01%) of the
offered rates for deposits in US Dollars for a period equal
to the particular LIBOR Period, which rates appear on (A)
the Reuters screen LIBO page, or (B) if the Reuters screen
LIBO page is not readily available to the Agent, Page 3750
of the Telerate screen, in either case as of 11:00 a.m.
(London time) on the second Business Day before the first
day of that LIBOR Period, or,
(b) if neither the Reuters screen LIBO page nor Page 3750 of
Telerate is readily available to the Agent for any reason,
the rate of interest determined by the Agent which is equal
to the simple average of the rates of interest (expressed
as a rate per annum on the basis of a year of 360 days and
rounded up to the nearest 0.01%) at which three of the five
largest (as to total assets) banks listed on Schedule I to
the BANK ACT (Canada) as selected by the Agent would be
prepared to offer leading banks in the London interbank
market a deposit in US Dollars for a period equal to the
LIBOR Period in an amount approximately equal to the
relevant LIBOR Advance at or about 10:00 a.m. (Toronto
time) on the second Business Day before the first day of
such Interest Period.
The LIBO Rate calculated as above shall be adjusted from
day to day for any Lender to whom the Eurocurrency Reserve
Percentage applies in respect of its LIBOR Advances under
this Agreement by dividing the LIBO Rate by a percentage
equal to 100% minus the Eurocurrency Reserve Percentage on
that day. The Eurocurrency Reserve Percentage is the
percentage prescribed by the Board of Governors of the
Federal Reserve System of the United States (or any
successor to its functions) for determining the maximum
reserve requirement (including but not limited to any
emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve
System in New York, New
- 15 -
York with deposits exceeding US $5 billion in respect of
Eurocurrency Liabilities (as defined in Regulation D of the
Board of Governors of the Federal Reserve System) or in
respect of any other category of liabilities which includes
deposits by reference to which the interest rate on LIBOR
Advances is determined or any category of extensions of
credit or assets which includes loans by a non-United
States office of any bank to United States residents.
1.1.64 "LIBOR ADVANCE" means an advance in US Dollars bearing interest
based on the LIBO Rate.
1.1.65 "LIBOR PERIOD" means the period selected by the Borrower for a
LIBOR Advance or the period applicable to the LIBOR Advance under
the terms of this Agreement.
1.1.66 "MAJORITY LENDERS" means Lenders holding, in the aggregate, a
minimum of 66 2/3% of the outstanding amount of the Commitments.
1.1.67 "MARKET VALUE" means, on any day, the total amount, if any,
expressed in Canadian Dollars that a person would be required to
pay to its counterparty under any Derivative in order to terminate
the Derivative. The determination shall be made in accordance with
current market practice using the average of the buy and sell
prices of the underlying interest of the Derivative as of noon
Toronto time on that date. The determination shall be made by the
Derivative Agent if a Derivative Agent has been appointed.
Otherwise, the determination may be made initially by NSCL but
shall be subject to review by the Agent (whose determination, if
made in good faith, shall be conclusive) if the Agent considers
that review is appropriate.
1.1.68 "MATERIAL ADVERSE CHANGE" means any one or more transactions,
events or conditions which, when taken together, have a material
adverse effect on (a) the ability of the Restricted Parties as a
whole to perform and discharge their obligations under this
Agreement or the Material Contracts taken as a whole, (b) the
Agent's or the Lenders' ability to enforce their rights or
remedies under any of the Credit Documents, or (c) the financial
condition, business or prospects of NSCL and its Subsidiaries,
taken as a whole. Notwithstanding the foregoing, if the context
requires, "Material Adverse Change" shall be interpreted having
reference only to such persons (other than all of the Restricted
Parties) as the context requires.
1.1.69 "MATERIAL CONTRACT" means any Contract:
(a) to which is attached obligations on the part of the
Restricted Parties or which has an economic value to the
Restricted Parties in excess of $25,000,000 per annum; or
- 16 -
(b) to which a Restricted Party is a party that, if terminated,
would materially impair the ability of the Restricted
Parties as a whole to carry on business in the ordinary
course or would cause a Material Adverse Change.
1.1.70 "MATERIAL PERMIT" means any Permit issued to a Restricted Party
that, if terminated, would materially impair the ability of the
Restricted Parties as a whole to carry on business in the ordinary
course or would cause a Material Adverse Change.
1.1.71 "MOODY'S" means Xxxxx'x Investors Service, Inc.
1.1.72 "NON BA LENDER" has the meaning defined in Section 5.15.5.
1.1.73 "NEW LENDER" has the meaning defined in Section 2.4.4.
1.1.74 "1999 INDENTURE" means the trust indenture dated as of 12 March
1999 between Pacifica Papers Inc., a predecessor by amalgamation
of NSCL, as issuer, certain of its Subsidiaries as guarantors and
Xxxxx Fargo Bank Minnesota, National Association (originally
Norwest Bank Minnesota, National Association), as Trustee, as
amended and supplemented by agreements dated 12 March 1999, 30
December 1999, 31 January 2001 and 1 September 2001 and otherwise
as permitted by this Agreement.
1.1.75 "1999 NOTES" means the 10% senior notes due 2009 issued under the
0000 Xxxxxxxxx.
1.1.76 "NOTEHOLDERS" means the holders from time to time of the 1999
Notes and the 2001 Notes.
1.1.77 "NSCL" means Norske Xxxx Canada Limited, a corporation governed by
the CANADA BUSINESS CORPORATIONS ACT.
1.1.78 "OBLIGATIONS" means all obligations of the Borrower to the Lenders
under or in connection with this Agreement, other than the Other
Secured Obligations, including but not limited to all debts and
liabilities, present or future, direct or indirect, absolute or
contingent, matured or not, at any time owing by the Borrower to
the Lenders in any currency or remaining unpaid by the Borrower to
the Lenders in any currency under or in connection with this
Agreement, whether arising from dealings between the Lenders and
the Borrower or from any other dealings or proceedings by which
the Lenders may be or become in any manner whatever creditors of
the Borrower under or in connection with this Agreement, and
wherever incurred, and whether incurred by the Borrower alone or
with another or others under or in connection with this Agreement,
and whether as principal or surety, and all interest, fees, legal
and other costs, charges and expenses. In this definition, "the
Lenders" shall be interpreted as "the Lenders, or any of them".
- 17 -
1.1.79 "OTHER SECURED OBLIGATIONS" means the present and future debts,
liabilities and obligations of any Restricted Party under or in
connection with:
(a) Derivatives to exchange one of Canadian Dollars, US
Dollars, Euros or Japanese yen to another of those
currencies, provided that in the case of such Derivatives
that relate to Debt, such Derivatives do not increase the
principal amount of Debt outstanding other than as a result
of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities or compensation payable
thereunder;
(b) Derivatives to provide for the exchange of floating
interest rate obligations for fixed interest rate
obligations, provided that the aggregate notional principal
amount (net of offsetting transactions) of such Derivatives
does not exceed the aggregate principal amount of NSCL's
consolidated floating rate Debt at the time any such
Derivative is entered into, and that the notional principal
amount of such Derivatives, at the time they are incurred,
does not exceed the principal amount of the Debt to which
such Derivatives relate;
(c) Derivatives to provide for the exchange of fixed interest
rate obligations for floating interest rate obligations in
an aggregate notional principal amount (net of offsetting
transactions) that does not exceed the aggregate principal
amount of NSCL's consolidated fixed rate Debt at the time
any such Derivative is entered into;
(d) Derivatives to manage fluctuations in prices of
commodities;
(e) any other Derivative that is not entered into for
speculative purposes provided that the Agent acting
reasonably, after consultation with counsel but without any
requirement to seek approval of the Majority Lenders,
concludes that the Derivative may be entered into without
breaching this Agreement, the 1999 Indenture, the 2001
Indenture, any Permitted Senior Secured Indebtedness, any
Permitted Subordinated Secured Indebtedness or any
Permitted Unsecured Indebtedness; and
(f) guarantees by Restricted Parties of Other Secured
Obligations incurred by other Restricted Parties;
provided that:
(g) the debts, liabilities and obligations are, in each case,
held by (i.e. owed to) any person that, at the time the
relevant Derivative was entered into, was a Lender or an
affiliate (as defined in the CANADA BUSINESS CORPORATIONS
Act) of a Lender;
(h) the Derivative Agent (or the Agent, if no Derivative Agent
has then been appointed) has been notified in writing of
any particular Other Secured Obligation (other than those
listed on Schedule H) being entered into,
- 18 -
either within five Business Days of it being entered into
or within such longer time as is established in accordance
with any arrangements established as contemplated in
Schedule L; and
(i) except for the Existing Special Derivatives, if the
Derivative is of the type described in Sections (c), (d) or
(e), it is entered into in accordance with the arrangements
contemplated in Schedule L.
1.1.80 "PENDING EVENT OF DEFAULT" means an event which, with giving of
notice, lapse of time, or both, or subject to any other condition
subsequent to such event, would constitute an Event of Default.
1.1.81 "PENSION PLAN" means (a) a "registered pension plan" (as that term
is defined in the INCOME TAX ACT (Canada)) which is subject to the
funding requirements of applicable pension benefits legislation in
any jurisdiction of Canada and is applicable to employees resident
in Canada of any Restricted Party, or (b) any pension benefit
plan, other post-retirement benefit plan or other similar
arrangement applicable to employees of any Restricted Party.
1.1.82 "PERMITS" means governmental licenses, authorizations, consents,
registrations, exemptions, permits and other approvals required by
law.
1.1.83 "PERMITTED ENCUMBRANCES" means, with respect to any person, the
following:
(a) Encumbrances for taxes, rates, assessments or other
governmental charges or levies not yet due, or for which
instalments have been paid based on reasonable estimates
pending final assessments, or if due, the validity of which
is being contested diligently and in good faith by
appropriate proceedings by that person and the payment of
which has been secured by such arrangements (including
Collateral) as the Lenders may require;
(b) undetermined or inchoate Encumbrances, rights of distress
and charges incidental to current operations which have not
at such time been filed or exercised and of which none of
the Lenders has been given notice, or which relate to
obligations not due or payable or if due, the validity of
which is being contested diligently and in good faith by
appropriate proceedings by that person and the payment of
which has been secured by such arrangements (including
Collateral) as the Lenders may require;
(c) reservations, limitations, provisos and conditions
expressed in any original grants from the Crown or other
grants of real or immovable property, or interests therein,
which do not materially affect the use of the affected land
for the purpose for which it is used by that person;
(d) zoning, land use and building restrictions, by-laws,
regulations and ordinances of federal, provincial,
municipal and other governmental authorities, licenses,
easements, rights-of-way and rights in the nature of
easements (including, without limiting the generality of
the foregoing,
- 19 -
licenses, easements, rights-of-way and rights in the nature
of easements for sidewalks, public ways, sewers, drains,
gas, steam and water mains or electric light and power, or
telephone and telegraph conduits, poles, wires and cables),
none of which will materially impair the use of the
affected land for the purpose for which it is used by that
person;
(e) title defects, encroachments or irregularities which are of
a minor nature and which in the aggregate will not
materially impair the use of the affected property for the
purpose for which it is used by that person;
(f) the right reserved to or vested in any municipality or
governmental or other public authority by the terms of any
lease, license, franchise, grant or permit acquired by that
person or by any statutory provision to terminate any such
lease, license, franchise, grant or permit, or to require
annual or other payments as a condition to the continuance
thereof;
(g) the Encumbrance resulting from the deposit of cash or
securities in connection with contracts (other than for the
payment of Debt), tenders or expropriation proceedings, or
to secure workers' compensation, unemployment insurance,
surety or appeal bonds, costs of litigation when required
by law, liens and claims incidental to current
construction, mechanics', warehousemen's, carriers' and
other similar liens, and public, statutory and other like
obligations incurred in the ordinary course of business, up
to a maximum at any time of $10,000,000 for all Restricted
Parties;
(h) security given to a public utility or any municipality or
governmental authority when required by such utility or
authority in connection with the operations of that person
in the ordinary course of its business, up to a maximum at
any time of $10,000,000 for all Restricted Parties;
(i) the Trustee Security, to the extent that it secures
debentures that have been issued under the trust deeds
forming part of the Trustee Security and pledged to secure
the debts, liabilities and obligations described in Section
3.2, and the pledges of those debentures;
(j) the Security other than the Trustee Security;
(k) the Encumbrance created by a judgment of a court of
competent jurisdiction, as long as the judgment is being
contested diligently and in good faith by appropriate
proceedings and payment has been secured by such
arrangements (including Collateral) as the Lenders may
require or the judgment is being satisfied by that person
and has not caused an Event of Default;
(l) Encumbrances on Property and the proceeds thereof created
or assumed to finance the acquisition or improvement or
secure the unpaid purchase price thereof (including the
principal amount of any capital lease or
- 20 -
Purchase Money Mortgage), provided that the aggregate
principal amount (or fair market value of the Property
Encumbered if no principal amount is designated) in respect
of all such Encumbrances entered into by all Restricted
Parties does not exceed 5% of Consolidated Net Tangible
Assets at any time;
(m) lease by Pacifica Papers Inc. to Xxxxxxx Trucking Ltd. of
that part of XX 0, Xxxxxxx Xxxxxxxx, Xxxx 0000-X and that
Part of Xxx X, XX 0, Xxxxxxx Xxxxxxxx Xxxx 00000, dated 1
November 1999, with term to 31 October 2003, with rent of
$5,100 semi-annually (NSCL File No. 1701-02, PR No.
G-1243);
(n) lease by Pacifica Poplars Inc. to Xxxxx Xxxxx of Part of
Northwest 1/4 of the Northeast 1/4 of Section 30, Township
3810, Range 5, EWM, containing 1.75 acres more or less at
$1.00 per year to 21 October 2005 (NSCL File No. 4708-05,
PR No. G-4000);
(o) permit by NSCL to West Isle Resources Renewal Limited to
use Part of Part of Block 105 Alberni District Plan for a
4-year term at $1500 per quarter, for fish composting
operations (expires 30 June 2005);
(p) lease ED128285 by NSCL registered against one of the
properties comprising the Crofton Pulp and Paper lands
(PID: 009-922-431) to The Corporation of the District of
North Cowichan over the portion of the relevant property
shown on Plan VIP51593 for the purposes of a community
parking lot, boat launch ramp and water access for a term
of 20 years commencing on 1 May 1990 and terminating on 30
April 2010;
(q) lease EN73583 by Elk Falls Pulp and Paper Limited
registered against one of the properties comprising the Elk
Falls Mill lands (PID: 001-233-432) to Calpine Island
Cogeneration Project Inc. (Inc. No. A44467), for the
purposes of a cogeneration plant which provides steam to
the mill operations and also sells electricity to BC Hydro,
and being a long-term lease which has a term consistent
with the Mill Services Agreement dated 29 September 1998
(including a renewal); and
(r) other Encumbrances expressly agreed to in writing by the
Majority Lenders.
1.1.84 "PERMITTED OBLIGATIONS" means the following:
(a) the Obligations;
(b) the Other Secured Obligations;
(c) debts, liabilities and obligations of any Restricted Party
to another Restricted Party;
- 21 -
(d) the 1999 Notes and the 2001 Notes;
(e) Permitted Senior Secured Indebtedness;
(f) Permitted Subordinated Secured Indebtedness;
(g) Permitted Unsecured Indebtedness;
(h) other debts, liabilities and obligations secured by
Permitted Encumbrances;
(i) other unsecured Debt up to an aggregate amount outstanding
of $4,000,000 for all Restricted Parties at any time;
(j) current accounts payable, accrued expenses and other debts,
liabilities and obligations incurred in the ordinary course
of business which are not Debt;
(k) deferred taxes;
(l) actuarially determined obligations in respect of Pension
Plans;
(m) obligations arising from guarantees by one Restricted Party
of debts, liabilities and obligations of another Restricted
Party that are themselves Permitted Obligations;
(n) bankers' acceptances secured by L/Cs as contemplated in
Section 5.23; and
(o) other debts, liabilities and obligations expressly
permitted under this Agreement or expressly consented to by
the Majority Lenders in writing.
1.1.85 "PERMITTED SENIOR SECURED INDEBTEDNESS" means Debt of NSCL for
borrowed money that:
(a) is secured by the Trustee Security PARI PASSU with the
Obligations and the Other Secured Obligations;
(b) other than as a result of default, does not require or
result in payment of principal in excess of an aggregate of
$50,000,000 for all Permitted Senior Secured Indebtedness
and Permitted Unsecured Indebtedness during any period of
36 consecutive months in the term of this Agreement;
(c) is on terms and conditions that, in the reasonable opinion
of the Majority Lenders, are no more restrictive to the
Restricted Parties than the terms of the Obligations
including, without limitation, the scheduled amortization
of the Debt;
(d) is not incurred at a time that an Event of Default or
Pending Event of Default has occurred and is continuing or
would, in the opinion of the Majority Lenders, acting
reasonably, based on their review of PRO FORMA
- 22 -
budgets and other information that the Lenders may require
from NSCL (all of which must be in form and substance
satisfactory to the Lenders, acting reasonably), result
from the incurrence of the Debt;
(e) if required by the Majority Lenders, is subject to the
terms of an Intercreditor Agreement entered into with the
Agent in form and substance satisfactory to the Majority
Lenders, acting reasonably; and
(f) has an aggregate principal amount outstanding at any time
during the term of this Agreement that does not exceed
$150,000,000.
1.1.86 "PERMITTED SUBORDINATED SECURED INDEBTEDNESS" means Debt of NSCL
for borrowed money that:
(a) is on terms and conditions including, without limitation,
financial covenants that are satisfactory to the Majority
Lenders;
(b) if required by the Majority Lenders, is subject to the
terms of an Intercreditor Agreement entered into with the
Agent in form and substance satisfactory to the Majority
Lenders, acting reasonably;
(c) is secured by the Trustee Security but subordinate to the
Obligations and the Other Secured Obligations.
1.1.87 "PERMITTED UNSECURED INDEBTEDNESS" means Debt of NSCL for borrowed
money that:
(a) other than as a result of default, does not require payment
of principal in excess of an aggregate of $50,000,000 for
all Permitted Senior Secured Indebtedness and Permitted
Unsecured Indebtedness during the term of this Agreement;
(b) is on terms and conditions that are no more restrictive to
the Restricted Parties than the terms of the Obligations
including, without limitation, the scheduled amortization
of the Debt; and
(c) is not incurred at a time that an Event of Default or
Pending Event of Default has occurred and is continuing or
would result from the incurrence of the Debt.
1.1.88 "PERSON" or "PERSON" means any individual, corporation, company,
partnership, unincorporated association, trust, joint venture,
estate or other judicial entity or any governmental body.
1.1.89 "PLEDGED SHARES" means the Capital Stock of the Restricted Parties
and other persons that is pledged as part of the Trustee Security
from time to time.
1.1.90 "PRIME RATE" means, on any day, the greater of:
- 23 -
(a) the annual rate of interest expressed as a percentage per
annum in effect on that day as TD's reference rate for
commercial loans made by it in Canada in Canadian Dollars;
and
(b) the average rate for 30 day Canadian Dollar bankers'
acceptances that appears on the Reuters Screen CDOR Page at
10:00 a.m. Toronto time on that day, plus 1% per annum.
1.1.91 "PRIME RATE ADVANCE" means an Advance in Canadian Dollars bearing
interest based on the Prime Rate and includes deemed Prime Rate
Advances provided for in this Agreement.
1.1.92 "PROPERTY" means, with respect to any person, any or all of its
undertaking, property and assets.
1.1.93 "PROPORTIONATE SHARE" means the percentage of the maximum amount
of the Credits which a Lender has agreed to advance to the
Borrower, as set out on Schedule E , which shall be amended by the
Agent from time to time as other persons become Lenders or the
Proportionate Shares of Lenders otherwise change.
1.1.94 "PURCHASE MONEY MORTGAGE" means any Encumbrance, including a
capital lease, created, issued or assumed by any Restricted Party
to secure indebtedness assumed by that person as part of, or
issued or incurred to provide funds to pay, and not exceeding 100%
of, the unpaid purchase price (including installation cost) or
construction cost of any Property, if the Encumbrance is limited
to the Property acquired and is created, issued or assumed
substantially concurrently with the acquisition of the Property or
in connection with the refinancing of an existing Purchase Money
Mortgage, if the principal amount has not increased and the
Encumbrance continues to be limited to that Property. Purchase
Money Mortgage also includes any other fixed charge over specific
limited Property securing term debt of a person existing at the
time the person is acquired by a Restricted Party or assumed by a
Restricted Party in connection with the acquisition of Property
from the person, but not incurred in connection with or in
anticipation of the acquisition of the person or Property.
1.1.95 "RBC" means Royal Bank of Canada, a bank to which the BANK ACT
(Canada) applies.
1.1.96 "REFERENCE DEBT RATING" means the public rating of the
indebtedness and liability of the Borrower to the Lenders under
the Credits or if either Xxxxx'x or S&P has not established a
rating for indebtedness and liability under the Credits, the
corporate credit or issuer ratings of NSCL established by Xxxxx'x
or S&P, as the case may be, shall apply.
1.1.97 "REGISTER" has the meaning defined in Section 10.2.3.
- 24 -
1.1.98 "REPLACEMENT CONTRACT" means any one or more Contracts (a) entered
into by a Restricted Party to replace a Material Contract that has
been terminated or in respect of which a declaration of
non-performance has been issued or similar step has been taken,
(b) which provide the Restricted Party with rights, benefits and
value substantially similar to and on terms and conditions not
materially less favourable than those contained in the Material
Contract being replaced and (c) which are entered into
concurrently with or before a termination, declaration or similar
step arising from a breach by or other event relating to a
Restricted Party or within 30 days of a termination, declaration
or similar step arising from a breach by or other event relating
to a Person other than a Restricted Party. A Replacement Contract
shall be deemed to be a Material Contract and shall be deemed to
be a Special Material Contract if the Material Contract that it
replaces was a Special Material Contract, and the Material
Contract that is replaced shall cease to be a Material Contract.
1.1.99 "REQUIREMENT OF LAW" means, as to any person, any law, treaty,
regulation, ordinance, decree, judgment, order or similar
requirement made or issued under sovereign or statutory authority
and applicable to or binding upon that person, or to which that
person or any of its Property is subject.
1.1.100 "RESTRICTED PARTIES" means NSCL, the Borrower, Elk Falls Pulp and
Paper Limited, NorskeCanada, Norske Xxxx Canada (Japan) Ltd,
Norske Xxxx Canada Pulp Operations Limited, Norske Xxxx Canada
Pulp Sales Inc, Norske Xxxx Canada Sales Inc., Norske Xxxx Canada
(USA) Inc., Norske Xxxx Pulp Sales (Japan) Ltd., NSCL Holdings
Inc., Pacifica Papers Sales Ltd., Pacifica Papers Sales Inc.,
Pacifica Papers Kabushiki Kaisha, Pacifica Poplars Ltd., Pacifica
Poplars Inc., and Pacifica Papers US Inc. and such other
Subsidiaries of NSCL as may become Restricted Parties from time to
time.
1.1.101 "S&P" means Standard & Poor's Corporation.
1.1.102 "SCHEDULE" means the designated schedule of this Agreement.
1.1.103 "SECTION" means the designated section of this Agreement.
1.1.104 "SECURED DEBT RATIO" means, at any time, the ratio of (a) the
amount of Funded Debt that is secured by any Encumbrance to (b)
the aggregate of all Funded Debt plus NSCL's shareholders' equity
determined in accordance with GAAP on a consolidated basis.
1.1.105 "SECURITY" means the security held from time to time by or on
behalf of the Lenders (including but not limited to the Trustee
Security), securing or intended to secure repayment of the
Obligations, including without limitation the security described
in Section 3.1.
1.1.106 "SPECIAL MATERIAL CONTRACT" has the meaning defined in Section
3.1.8.
- 25 -
1.1.107 "SUBSIDIARY" means, with respect to a Restricted Party, a
subsidiary as defined in the CANADA BUSINESS CORPORATIONS ACT as
of the date of this Agreement, and any partnership or other
organization in which the Restricted Party or any of its
Subsidiaries has the right to make or control management
decisions.
1.1.108 "SUCCESSOR AGENT" has the meaning defined in Section 9.11.
1.1.109 "SYNDICATION AGENT" means RBC in its role as syndication agent for
the Lenders.
1.1.110 "TAXES" means all taxes, levies, imposts, stamp taxes, duties,
deductions, withholdings, rates, assessments, fees, dues and
similar governmental impositions payable, levied, collected,
withheld, imposed or assessed as of the date of this Agreement or
at any time in the future, and "TAX" shall have a corresponding
meaning.
1.1.111 "TD" means The Toronto-Dominion Bank, a bank to which the BANK ACT
(Canada) applies.
1.1.112 "THRESHOLD AMOUNT" means, while the 1999 Notes are outstanding,
the aggregate of:
(a) the greater of (i) $430,000,000 and (ii) the sum of 75% of
the net book value of the accounts receivable of NSCL and
its "Restricted Subsidiaries" as defined under the 1999
Indenture plus 50% of the net book value of inventory of
NSCL and its Restricted Subsidiaries plus $290,000,000;
(b) $40,000,000; and
(c) the amount of Advances outstanding under the Credits that
are trade letters of credit and standby letters of credit
incurred in the ordinary course of business and the amount
of Bankers' Acceptances outstanding under the Credits that
are incurred in the ordinary course of business, up to an
aggregate principal amount of $5,000,000 outstanding at any
one time;
and, if the 1999 Notes are no longer outstanding and the 2001
Notes are outstanding, means the aggregate of:
(d) the greater of (i) $725,000,000 and (ii) the sum of 75% of
the net book value of the accounts receivable of NSCL and
its "Restricted Subsidiaries" as defined under the 2001
Indenture plus 50% of the book value of inventory at the
lower of cost and net realizable value, net of any
allowance for obsolescence of NSCL and its Restricted
Subsidiaries plus $290,000,000;
(e) $40,000,000; and
- 26 -
(f) the amount of Advances outstanding under the Credits that
are trade letters of credit and standby letters of credit
incurred in the ordinary course of business and the amount
of Bankers' Acceptances outstanding under the Credits that
are incurred in the ordinary course of business, up to an
aggregate principal amount of $5,000,000 outstanding at any
one time.
If neither the 1999 Notes nor the 2001 Notes are outstanding, the
Threshold Amount shall be considered to be unlimited.
1.1.113 "TOTAL INTEREST EXPENSE" means, for any particular period, without
duplication, the difference between (a) aggregate expense incurred
for interest and equivalent costs of borrowing (taking into
account the effect of any relevant Derivatives), including but not
limited to (i) bankers' acceptance fees, (ii) discounts on
bankers' acceptances, (iii) the interest portion of any capital
lease, and (iv) all fees and other compensation paid to any person
that has extended credit to the Restricted Parties, but excluding
any upfront, extension and similar non-recurring fees paid to the
Agent or Lenders or paid in connection with the 2001 Notes or 1999
Notes, in each case whether or not actually paid (unless paid by
the issuance of securities constituting Debt), and (b) the
aggregate income earned from interest, in the case of each of (a)
and (b), calculated in accordance with GAAP in respect of NSCL on
a consolidated basis, omitting amounts that are not attributable
to Restricted Parties. If the calculation of EBITDA is adjusted
because of acquisitions, dispositions or other circumstances
described in the last paragraph of Section 1.1.40, the calculation
of Total Interest Expense shall be adjusted on the same basis.
1.1.114 "TRUSTEE" means The Canada Trust Company in its capacity as
trustee under the Trustee Security from time to time, and any
successor trustee.
1.1.115 "TRUSTEE SECURITY" means the trust deeds granted by the Restricted
Parties to the Trustee and the pledges of Pledged Shares,
assignments of Material Contracts and other collateral security
for the trust deeds.
1.1.116 "2001 INDENTURE" means the trust indenture dated as of 14 August
2001 between NSCL, certain of its Subsidiaries as guarantors and
Xxxxx Fargo Bank Minnesota, National Association as trustee, as
amended and supplemented by agreements dated 28 August 2001 and 1
September 2001 and otherwise as permitted by this Agreement.
1.1.117 "2001 NOTES" means the 8 5/8% senior notes due 2011 issued by NSCL
under the 0000 Xxxxxxxxx.
1.1.118 "US DOLLARS" and "US $" mean lawful money of the United States of
America.
- 27 -
ARTICLE II
THE CREDITS
2.1 AMOUNT AND AVAILMENT OPTIONS
2.1.1 Upon and subject to the terms and conditions of this Agreement, the
Lenders agree to provide credits for the use of the Borrower in the amount of up
to Cdn. $350,000,000 or the US Dollar equivalent thereof, which are referred to
collectively as the Credits and are comprised of a tranche of up to
Cdn.$297,500,000 referred to as Credit 1 and a tranche of up to Cdn. $52,500,000
referred to as Credit 2. Subject to Section 5.1, Advances under Credit 1 will be
made by the Lenders and Advances under Credit 2 will be made by RBC. The
Borrower may from time to time with the agreement of the Agent (without any
requirement to seek Majority Lender consent) and the proposed replacement,
designate another Lender to replace RBC in making Advances under Credit 2. In
that case, references in this Agreement to RBC in respect of Credit 2 shall be
interpreted as referring to the replacement.
2.1.2 At the option of the Borrower, Credit 1 may be used by requesting Prime
Rate Advances to be made by the Lenders, by requesting Base Rate Advances to be
made by the Lenders, by presenting orders to the Lenders for acceptance as
Bankers' Acceptances, or by requesting that LIBOR Advances be made by the
Lenders.
2.1.3 At the option of the Borrower, Credit 2 may be used by the Borrower
incurring overdrafts in its accounts with RBC, which shall be deemed to be Prime
Rate Advances in the case of Canadian Dollar overdrafts and Base Rate Advances
in the case of US Dollar overdrafts, by presenting orders to RBC for acceptance
as Bankers' Acceptances, by requesting that LIBOR Advances be made by RBC or by
requesting that L/Cs denominated in Canadian Dollars, US Dollars, Euros or
Japanese yen be issued by RBC.
2.1.4 The aggregate amount of all outstanding Advances to the Borrower under
the Credits shall not at any time exceed the amount of the Borrowing Base at
that time.
2.2 REVOLVING CREDIT
The Credits are revolving credits and the principal amount of any
Advance under a Credit that is repaid may be reborrowed, if the Borrower is
otherwise entitled to an Advance under that Credit.
2.3 USE OF CREDITS
The Credits shall be used to assist in financing the general corporate
requirements of the Restricted Parties.
2.4 TERM AND REPAYMENT
The Credits shall be repaid in full and cancelled on or before 19 July
2005. If no Event of Default or Pending Event of Default has occurred and is
continuing, the
- 28 -
Borrower may request that the maturity date of the Credits be
extended by successive one year periods in accordance with the following
procedures:
2.4.1 The Borrower shall, if it wishes to extend the maturity date, make such
request to each Lender by written notice given to the Agent not earlier than 1
April nor later than 30 April in each year, after the forecasts contemplated in
Section 7.3.1(e) have been delivered to the Agent. Each Lender shall provide a
written response to such request to the Agent within 30 days after receiving the
request. If any Lender fails to respond, it shall be deemed to have declined to
grant any extension (and shall have no liability for failing to respond).
Promptly thereafter, the Agent will notify the Borrower of the response of the
Lenders, which notice shall include the names of all Lenders who declined or
were deemed to have declined to grant such extension (the "DECLINING LENDERS").
2.4.2 If all of the Lenders agree to extend the maturity date, the maturity
date shall be extended by one year from the then applicable maturity date.
2.4.3 If the aggregate amount of the Commitments in respect of all Lenders
who agree to extend the maturity date (the "ACCEPTING LENDERS") is less than or
equal to two-thirds of the aggregate Commitments in respect of the Credits of
all Lenders then in effect, the maturity date shall not be extended.
2.4.4 If the aggregate amount of the Commitments of the Accepting Lenders
exceeds two-thirds of the aggregate Commitments of all Lenders in respect of the
Credits then in effect, unless the Borrower elects not to extend the maturity
date by giving a further written notice to the Agent to that effect before the
then applicable maturity date, the maturity date shall be extended by one year
from the then applicable maturity date provided that the Borrower has, before
the then applicable maturity date, replaced or cancelled the Commitments in
respect of the Credits of all Declining Lenders in the following manner:
(a) the Borrower may negotiate an agreement with:
(i) one or more of the Accepting Lenders, or
(ii) one or more other financial institutions ("NEW
LENDERS") which have been identified by the Borrower
(with the assistance of the Agent, if requested) and
which are acceptable to the Accepting Lenders, acting
reasonably,
to assume the Commitments of the Declining Lenders upon payment to
the Declining Lenders of all amounts owed to the Declining Lenders
under or in connection with the Credits, and in that event an
assignment by the Declining Lenders to the Accepting Lenders or
the New Lenders will be deemed to have occurred in accordance with
the terms of the form of Assignment Agreement; and
(b) to the extent the Commitments of the Declining Lenders have not
been fully assumed by the Accepting Lenders and the New Lenders
pursuant to paragraph (a) above, the Borrower shall cancel the
Commitments of the
- 29 -
Declining Lenders and pay to the Declining Lenders on the latest
maturity date to which the Declining Lenders have previously
agreed, all amounts owed to the Declining Lenders under or in
connection with the Credits, without penalty but subject to
payment of any losses, costs and expenses payable to the Declining
Lenders pursuant to this Agreement.
2.5 INTEREST RATES AND FEES
Interest rates on Prime Rate Advances, Base Rate Advances and
LIBOR Advances and the rates for calculation of Bankers' Acceptance Fees and L/C
Fees shall vary according to the Reference Debt Ratings. The rate for
calculation of Bankers' Acceptance Fees and L/C Fees shall be the Applicable Fee
Rate per annum from time to time in effect. Interest shall accrue and be payable
on Prime Rate Advances and Base Rate Advances at the Prime Rate and Base Rate,
respectively, per annum plus the Applicable Margin from time to time in effect.
Interest shall accrue and be payable on LIBOR Advances at the LIBO Rate per
annum for the applicable LIBOR Period plus the Applicable Margin from time to
time in effect. Any change in the Applicable Fee Rate or Applicable Margin shall
take effect as provided in the definitions of those terms.
Interest and fees for Credit 1 shall be promptly distributed by
the Agent to the Lenders based on their respective Proportionate Shares as
adjusted in accordance with Section 5.2. Subject to Section 5.1, interest for
Credit 2 shall be paid to RBC for its own account.
2.6 COMMITMENT FEE
The Borrower shall pay commitment fees based on the daily undrawn
portion of Credits 1 and 2, respectively, at the following rates, which shall
vary according to the percentage of the aggregate amount of the Credit which is
drawn and the Applicable Fee Rate from time to time:
APPLICABLE COMMITMENT FEE
PERCENTAGE WHICH IS DRAWN (% OF APPLICABLE FEE RATE)
------------------------- --------------------------
Less than 33% 35%
33% to 66% 30%
Less than 66% 25%
The commitment fee shall be calculated daily beginning on 19 July
2002 and shall be payable quarterly in arrears on the third Business Day after
the end of each calendar quarter, with the first payment to be made on 3 October
2002. Commitment fees for Credit 1 shall be promptly distributed by the Agent to
the Lenders based on their respective Proportionate Shares as adjusted in
accordance with Section 5.2. Subject to Section 5.1, commitment fees for Credit
2 shall be paid to RBC for its own account.
- 30 -
2.7 OTHER FEES
The Borrower shall also pay agency and other fees in respect of
the Credits to the Agent in accordance with the Fee Agreement and to TD and RBC
in accordance with the fee letters dated 10 May 2002 from those Lenders to the
Borrower.
2.8 EXISTING L/CS, BANKERS' ACCEPTANCES ETC.
2.8.1 The letters of credit listed on Schedule K, which were issued by
RBC before the date of this Agreement, shall be deemed to have been issued as
L/Cs and to be Advances under Credit 2, without any notice of Advance or payment
of any fee under this Agreement being required. The Borrower hereby confirms its
previous assumption of all debts, liabilities and obligations of NSCL under or
in connection with the letters of credit listed on Schedule K that were
originally issued for the account of NSCL.
2.8.2 The bankers' acceptances listed on Schedule K, which were accepted
by certain Lenders before the date of this Agreement, shall be deemed to have
been accepted as Bankers' Acceptances and to be Advances under Credit 1 (or
Credit 2 in the case of those accepted by RBC), without any notice of Advance or
payment of any fee under this Agreement being required. The parties acknowledge
that, until the maturity of those Bankers' Acceptances, the Lenders under Credit
1 may have Advances outstanding that are not in accordance with their
Commitments. No attempt will be made to make compensating adjustments in respect
of future Advances under Credit 1, but payments in respect of Credit 1 shall be
made based on the actual amounts outstanding rather than Commitments.
2.8.3 All "Advances" (as defined in the credit agreement dated as of 14
August 2001 to which certain of the parties to this Agreement are also party)
made by RBC under "Operating Credit 2" (as defined in this Agreement) that are
outstanding on the date of the initial Advance under this Agreement shall be
deemed to be Advances under Credit 2.
2.9 EXCHANGE RATE AND BORROWING BASE FLUCTUATIONS
If fluctuations in rates of exchange in effect between US Dollars
and Cdn. Dollars cause the amount of Advances (expressed in Cdn. Dollars) under
a Credit to exceed the maximum amount of that Credit permitted herein by three
percent or more at any time, the Borrower shall immediately pay the Lenders such
amount as is necessary to repay the excess. If the amount of Advances
outstanding to the Borrower under the Credits exceeds the amount of the
Borrowing Base at that time, the Borrower shall immediately pay the Lenders such
amount as is necessary to repay the excess. If the Borrower is unable to
immediately pay any amount under this Section because LIBOR Periods have not
ended or Bankers' Acceptances have not matured, the Borrower shall immediately
post Collateral with the Agent in the amount of the excess, which shall form
part of the Security for the Obligations and be held until the amount of the
excess is paid in full or is less than three percent in the case of a
fluctuation in rates of exchange. If, on the date of any Advance under a Credit
(whether by rollover, conversion or otherwise), the amount of Advances
(expressed in Cdn. Dollars) under that Credit exceeds the maximum amount of that
Credit permitted herein because of fluctuations in rates of exchange, the
Borrower shall
- 31 -
immediately pay the Lenders the excess and shall not be entitled
to any Advance that would result in the amount of that Credit being exceeded.
ARTICLE III
SECURITY
3.1 SECURITY
3.1.1 The Security includes the following, all in form and substance
satisfactory to the Lenders and subject only to Permitted Encumbrances:
(a) a $5,000,000,000 trust deed granted by each Restricted
Party in favour of the Trustee, secured by a fixed charge
over all freehold and leasehold real property and all
equipment and a security interest and floating charge over
all other Property, together with such other documents as
the Lenders may require from time to time to charge
Property located outside of British Columbia;
(b) debentures issued under each trust deed and pledged in
favour of the Agent for the benefit of the Lenders;
(c) pledges in favour of the Trustee of all Capital Stock of
the Restricted Parties other than NSCL that are owned by
the Restricted Parties (including NSCL) from time to time;
(d) pledges in favour of the Trustee of all Capital Stock of
persons other than Restricted Parties that are owned by the
Restricted Parties from time to time;
(e) specific assignments by way of security of Material
Contracts that have been given by the relevant Restricted
Parties in favour of the Trustee before the date of this
Agreement;
(f) further specific assignments in favour of the Trustee of
those Material Contracts that are designated by the Agent
from time to time after Permitted Senior Secured
Indebtedness has been incurred in an aggregate principal
amount of $100,000,000 or more;
(g) a general assignment by way of security of all Material
Contracts (without any requirement that they be
individually listed), to be given in favour of the Trustee
by each Restricted Party designated by the Agent from time
to time;
(h) unconditional guarantees of the Obligations by each of the
Restricted Parties, excluding the Borrower, which shall be
unlimited except for limits imposed by applicable law.
- 32 -
3.1.2 Notwithstanding the foregoing, but subject to compliance with
Sections 7.5.3(d) and 7.5.3(e), the Restricted Parties shall not be required to
deliver Security documents in a form customarily used in jurisdictions outside
Canada and the United States or arrange registrations of the Security outside
Canada and the United States as a condition precedent to the initial Advance
under this Agreement, but shall cause such documents to be delivered before the
thresholds specified in Sections 7.5.3(d) and 7.5.3(e) are exceeded, together
with all opinions and supporting documents that the Agent reasonably requires.
For greater certainty, all Restricted Parties shall deliver all other documents
contemplated in Section 3.1.1.
3.1.3 Except for the companies listed in Schedule I (other than any
Restricted Parties), if at any time NSCL owns, establishes or acquires a
Subsidiary that is wholly owned by NSCL, directly or indirectly, NSCL shall
immediately cause that Subsidiary to become a Restricted Party, adopt this
Agreement by delivering an agreement in the form of Schedule B so as to be bound
by all of the terms applicable to Restricted Parties as if it had executed this
Agreement as a Restricted Party, and deliver a guarantee and other security
documents similar to those delivered by other Restricted Parties, which shall
become part of the Security. NSCL shall also deliver or cause the delivery of a
pledge of all of the Capital Stock of the new Subsidiary as part of the Trustee
Security and cause the delivery of such legal opinions and other supporting
documents as the Agent may reasonably require.
3.1.4 Notwithstanding the preceding paragraph, a wholly owned Subsidiary
not owned at the date of this Agreement shall not be required to become a
Restricted Party if:
(a) it is established, acquired and/or invested in using solely
the proceeds of Capital Stock issued by NSCL or Permitted
Unsecured Indebtedness; or
(b) it is established, acquired and/or invested in using
proceeds of Advances and the aggregate amount of proceeds
of Advances used to establish, acquire and/or invest in all
such Subsidiaries during any period of 36 consecutive
months does not exceed (i) $100,000,000 if any Permitted
Senior Secured Indebtedness or Permitted Subordinated
Secured Indebtedness is outstanding or (ii) $250,000,000 if
no Permitted Senior Secured Indebtedness or Permitted
Subordinated Secured Indebtedness is outstanding and if no
Restricted Party is providing any guarantee (or other
financial assistance which may result in an obligation to
make disbursements in an aggregate amount exceeding
$5,000,000) relating to any obligations of any such
Subsidiary; the limits of $100,000,000 and $250,000,000
shall be increased to the extent that the Restricted
Parties actually receive cash dividends or other cash
returns on their investments in such Subsidiaries during
the 36 month period and use the cash dividends or other
cash returns to repay the Credits.
For greater certainty, if a wholly-owned Subsidiary is
established, acquired and/or invested in using proceeds of Permitted Senior
Secured Indebtedness or Permitted Subordinated Secured Indebtedness, NSCL must
immediately comply with Section 3.1.3.
- 33 -
3.1.5 NSCL shall cause a pledge in form satisfactory to the Agent of the
Capital Stock of any wholly owned Subsidiary that does not become a Restricted
Party as permitted by Section 3.1.4 to be delivered as part of the Security if
the aggregate amount used to establish, acquire and/or invest in all such
Subsidiaries during any period of 36 consecutive months exceeds $100,000,000.
The limit of $100,000,000 shall be increased to the extent that the Restricted
Parties actually receive cash dividends or other cash returns on their
investments in such Subsidiaries during the 36 month period and use the cash
dividends or other cash returns to repay the Credits. If the shareholder of any
such Subsidiary is itself not a Restricted Party, the pledge shall be without
recourse to the other Property of the shareholder.
3.1.6 If at any time any Restricted Party owns or obtains an interest in
a person that is not a wholly owned Subsidiary, other than Xxxxxx River Energy
Inc. or Xxxxxx River Energy LP, NSCL shall cause that interest to immediately be
pledged as part of the Trustee Security and cause the delivery of such legal
opinions and other supporting documents as the Agent may reasonably require.
3.1.7 If at any time all of the Capital Stock of a Restricted Party
other than the Borrower or NSCL is sold in accordance with the terms of this
Agreement, other than to another Restricted Party, then if no Event of Default
or Pending Event of Default has occurred and is continuing, the Restricted Party
of which the Capital Stock has been sold and any wholly-owned Subsidiary thereof
that is a Restricted Party shall, on request by NSCL, cease to be a Restricted
Party and the Agent shall deliver or direct the Trustee to deliver such releases
of the Security, including guarantees, as may reasonably be required to release
the obligations of those Restricted Parties. The Agent shall also discharge any
Security (or direct the Trustee to do so) to the extent necessary to allow any
Restricted Party to complete any sale or other disposition of Property permitted
by this Agreement.
3.1.8 Before incurring Permitted Senior Secured Indebtedness in an
aggregate principal amount of $100,000,000 during the term of this Agreement,
NSCL shall prepare and submit to the Agent for its approval (acting reasonably,
after consultation with counsel, but without any requirement to seek approval of
the Majority Lenders) a list of all of the then-existing Material Contracts. The
list shall be in a form similar to the lists prepared in connection with the
credit agreement dated as of 14 August 2001 to which NSCL, the Agent and others
were parties, it being acknowledged that NSCL has stated it considers certain
Contracts on those lists would not, in fact, qualify as Material Contracts and
that the contents of the existing lists shall not be determinative of the
content of the new list. Without limitation, the list shall be separated into
Part A, being the most important Material Contracts, which are referred to in
this Agreement as "SPECIAL MATERIAL CONTRACTS" and Part B, being the remainder.
The separation shall be done on a basis consistent with the separation of
Material Contracts in the lists prepared in connection with the credit agreement
dated as of 14 August 2001. Before incurring Permitted Senior Secured
Indebtedness in an aggregate principal amount of $100,000,000 during the term of
this Agreement, NSCL shall also (i) deliver specific assignments in favour of
the Trustee of those Material Contracts that are designated by the Agent which
have not already been specifically assigned, (ii) obtain agreements from other
parties to Special Material Contracts that have been specifically assigned if
agreements from those parties have not already been
- 34 -
obtained and (iii) diligently and in good faith use all commercially reasonable
efforts (both before and after incurring Permitted Senior Secured Indebtedness)
to obtain agreements from other parties to other Material Contracts that have
been specifically assigned if agreements from those parties have not already
been obtained.
3.2 OBLIGATIONS SECURED BY THE TRUSTEE SECURITY
3.2.1 Debentures shall be issued by the Restricted Parties under their
respective trust deeds and pledged to the Agent to secure:
(a) the Obligations that (taking into account other obligations
described in Section 7.7.2 that must be accounted for in
determining whether the Threshold Amount has been exceeded)
do not exceed the Threshold Amount;
(b) the Other Secured Obligations that are classified by NSCL
as being incurred under clauses (v) and (vi) of the
definition of "Permitted Indebtedness" in the 0000
Xxxxxxxxx and the definition of "Permitted Debt" in the
2001 Indenture (including guarantees by Restricted Parties
of those Other Secured Obligations as incurred by other
Restricted Parties);
(c) the Other Secured Obligations not mentioned in item (b)
above that (taking into account other obligations described
in Section 7.7.2 that must be accounted for in determining
whether the Threshold Amount has been exceeded) do not
exceed the Threshold Amount;
equally and ratably with each other and with any Permitted Senior Secured
Indebtedness but in priority to any other debts, liabilities and obligations
secured by the Trustee Security.
Out of an abundance of caution (recognizing that the Restricted
Parties are not permitted to do anything that would result in the holders of the
1999 Notes or the 2001 Notes becoming entitled to be secured), further
debentures shall be issued by the Restricted Parties under their respective
trust deeds and pledged to the Agent to secure the Obligations and the Other
Secured Obligations not mentioned in item (b) above that exceed the Threshold
Amount, equally and ratably with the debts, liabilities and obligations of the
Restricted Parties under or in connection with the 1999 Notes and/or the 2001
Notes if the 1999 Notes and/or the 2001 Notes are required to be secured under
their terms.
As between the Lenders, all Obligations shall rank equally and
ratably with each other notwithstanding that different Obligations may be
designated as having been incurred with reference to different provisions of the
1999 Indenture and the 2001 Indenture which might otherwise imply that different
Obligations have different rankings. Each Lender shall (and hereby absolutely,
unconditionally and irrevocably agrees to) do all such things, including
delivery of indemnity agreements and assignments to other Lenders of Advances
made by those Lenders as shall be required to ensure that result. Any such
action on the part of the Lenders shall be binding on the Borrower. If any
Lender fails to take the actions required under this Section, the Agent may,
without prejudice to the other rights of the Lenders, make such adjustments to
the payments to the defaulting Lender under this
- 35 -
Agreement as are necessary to compensate the other Lenders for the defaulting
Lender's failure.
Further debentures may be issued by a Restricted Party under its
trust deed and pledged to another Restricted Party to secure debts, liabilities
and other obligations to the other Restricted Party as long as the debentures
are subordinate to all debentures pledged to secure the Obligations and the
Other Secured Obligations and are assigned to the Agent as additional security
for the Obligations up to the Threshold Amount.
Subject to the other terms of this Agreement, further debentures
may be issued by a Restricted Party under its trust deed and pledged to secure
Permitted Senior Secured Indebtedness. Any debentures issued and pledged for
that purpose may rank equally and ratably as to proceeds of enforcement of
security with debentures issued and pledged to secure the Obligations and the
Other Secured Obligations, but shall be designated as "Ratable Debentures" under
the respective trust deeds.
Subject to the other terms of this Agreement, further debentures
may be issued by a Restricted Party under its trust deed and pledged to secure
Permitted Subordinated Secured Indebtedness. Any debentures issued and pledged
for that purpose must rank junior in all respects to debentures issued and
pledged to secure the Obligations and the Other Secured Obligations.
3.2.2 For the purposes of section 4.06 of each of the 1999 Indenture and
the 2001 Indenture:
(a) Advances by way of L/Cs are hereby classified by NSCL as
being incurred under clause (xi) of the definition of
"Permitted Indebtedness" in the 0000 Xxxxxxxxx and the
definition of "Permitted Debt" in the 2001 Indenture until
all amounts permitted to be incurred under those clauses
from time to time have been incurred, thereafter under
clause (i) of the respective definitions until all amounts
permitted to be incurred under those clauses from time to
time have been incurred, and finally under clause (ix) of
the respective definitions until all amounts permitted to
be incurred under those clauses from time to time have been
incurred;
(b) Advances other than by way of L/Cs are hereby classified by
NSCL as being incurred under clause (i) of the definition
of "Permitted Indebtedness" in the 0000 Xxxxxxxxx and the
definition of "Permitted Debt" in the 2001 Indenture until
all amounts permitted to be incurred under those clauses
from time to time have been incurred, and thereafter under
clause (ix) of the respective definitions until all amounts
permitted to be incurred under those clauses from time to
time have been incurred.
If NSCL incurs Permitted Senior Secured Indebtedness, Permitted
Subordinated Secured Indebtedness or Permitted Unsecured Indebtedness on terms
that require the classification of Advances, NSCL shall do so on a basis that is
approved by the Agent as being consistent with the classifications provided for
above. All classifications are
- 36 -
irrevocable without the consent of the Agent acting reasonably, after
consultation with counsel, but without any requirement to seek approval of the
Majority Lenders.
If any Advance is within the Threshold Amount at the time it is
made and thereby entitled to be secured in priority to the 1999 Notes and the
2001 Notes, it shall remain entitled to that priority notwithstanding any
subsequent diminution of the Threshold Amount. If any repayment is made under a
Credit, it shall be deemed to have first been made in respect of any Advance
that was not within the Threshold Amount at the time it was made, and shall only
be made in respect of any Advance that was within the Threshold Amount at the
time it was made if no other Advances are then outstanding under that Credit.
3.2.3 If the Obligations other than outstanding Bankers' Acceptances
and/or L/Cs have been indefeasibly paid in full, the Lenders will release their
interest in the Security upon receiving Collateral to secure the remaining
Obligations, in an amount satisfactory to the respective Lenders, acting
reasonably.
3.2.4 As of the date of this Agreement, Lenders have entered into the
Derivatives with Restricted Parties which are listed in Schedule H and are Other
Secured Obligations. Lenders, or affiliates (as defined in the CANADA BUSINESS
CORPORATIONS ACT) of Lenders, may during the term of this Agreement enter into
further Derivatives with Restricted Parties, which shall be Other Secured
Obligations if they fall within the definition of Other Secured Obligations.
For the purposes of section 4.06 of the each of the 1999 Indenture
and the 2001 Indenture:
(a) the Other Secured Obligations referred to in Section
1.1.79(a) are hereby classified by NSCL as being incurred
under clause (vi) of the definition of "Permitted
Indebtedness" in the 0000 Xxxxxxxxx and the definition of
"Permitted Debt" in the 0000 Xxxxxxxxx;
(b) the Other Secured Obligations referred to in Section
1.1.79(b) are hereby classified by NSCL as being incurred
under clause (v) of the definition of "Permitted
Indebtedness" in the 0000 Xxxxxxxxx and the definition of
"Permitted Debt" in the 2001 Indenture;
(c) the Other Secured Obligations referred to in Section
1.1.79(c) are hereby classified by NSCL as being incurred
under clause (i) of the respective definitions until all
amounts permitted to be incurred under those clauses from
time to time have been incurred and thereafter under clause
(ix) of the respective definitions until all amounts
permitted to be incurred under those clauses from time to
time have been incurred;
(d) the Other Secured Obligations referred to in Sections
1.1.79(d) and 1.1.79(e) are hereby classified by NSCL as
being incurred under clause (i) of the definition of
"Permitted Indebtedness" in the 0000 Xxxxxxxxx and the
definition of "Permitted Debt" in the 2001 Indenture until
all amounts permitted to be incurred under those clauses
from time to time have been
- 37 -
incurred and thereafter under clause (ix) of the respective
definitions until all amounts permitted to be incurred
under those clauses from time to time have been incurred.
If NSCL incurs Permitted Senior Secured Indebtedness, Permitted
Subordinated Secured Indebtedness or Permitted Unsecured Indebtedness on terms
that require the classification of Other Secured Obligations, NSCL shall do so
on a basis that is approved by the Agent as being consistent with the
classifications provided for above. All classifications are irrevocable without
the consent of the Agent acting reasonably, after consultation with counsel, but
without any requirement to seek approval of the Majority Lenders.
The Agent shall from time to time prepare and provide the Lenders
and NSCL with a revision of Schedule H to reflect changes in the Other Secured
Obligations, but the Agent's failure to do so shall not affect the security for
the Other Secured Obligations if the relevant Derivatives fall within the
definition of Other Secured Obligations. Derivatives that fall within the
definition of Other Secured Obligations shall be conclusively deemed to be
secured by the Trustee Security (in the absence of manifest error) and shall not
cease to be secured without the prior written consent of the respective holders
of the Other Secured Obligations. If the Obligations have been indefeasibly paid
in full, the holders of the Other Secured Obligations will release their
interest in the Security upon receiving Collateral to secure the Other Secured
Obligations, in an amount satisfactory to the respective holders, acting
reasonably.
Notwithstanding the rights of holders of Other Secured Obligations
to benefit from the Trustee Security in respect of the Other Secured
Obligations, all decisions concerning the Trustee Security and the enforcement
thereof shall be made by the Lenders or the Majority Lenders in accordance with
this Agreement. No holder of Other Secured Obligations from time to time shall
have any additional right to influence the Trustee Security or the enforcement
thereof as a result of holding Other Secured Obligations as long as this
Agreement remains in force and the Agent shall vote any debentures issued under
the Trustee Security and pledged to secure the Other Secured Obligations in the
same manner as the debentures pledged to secure the Obligations. However, the
Other Secured Obligations shall continue to be secured by the Trustee Security
notwithstanding the termination of this Agreement by reason of payment of the
Credits, or for any other reason. After the termination of this Agreement,
decisions concerning the Trustee Security shall be made by the holders of Other
Secured Obligations as they may determine among themselves.
3.3 CONSENT TO ASSIGNMENT OF CONTRACTS
Each Restricted Party that is a party to any Contract with, or
that has issued any instrument in favour of, any other Restricted Party or
Restricted Parties hereby acknowledges that the rights of the other Restricted
Party or Restricted Parties are charged by the Trustee Security, consents to the
granting of the Trustee Security and agrees that the Trustee shall be entitled
to enforce the Trustee Security in accordance with the terms thereof.
- 38 -
ARTICLE IV
DISBURSEMENT CONDITIONS
4.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE
The following conditions precedent must be satisfied at or before
the time of the first Advance under this Agreement, unless waived in accordance
with Section 9.7.2. Where delivery of documents is referred to, the documents
shall be delivered to the Agent, for and on behalf of the Lenders, and shall be
in full force and effect and in form and substance satisfactory to the Lenders.
4.1.1 OTHER DEBT AND ENCUMBRANCES - The Agent shall have received:
(a) evidence that NSCL has completed an issuance of Capital
Stock for gross proceeds of not less than $150,000,000 and
has used the net proceeds to permanently repay Debt under
existing credit facilities;
(b) evidence that all existing credit facilities (including but
not limited to those established under the credit agreement
dated as of 14 August 2001 to which certain of the parties
to this Agreement are also party) and other Debt of the
Restricted Parties not forming part of Permitted
Obligations have been or will be paid and performed in full
and cancelled concurrently with the first Advance (except
to the extent they are secured by L/Cs as contemplated in
Section 5.23) and that all security held in connection
therewith has been or will be promptly released;
(c) releases, discharges and postponements (in registrable form
where appropriate) covering all Encumbrances affecting the
collateral Encumbered by the Security which are not
Permitted Encumbrances, and all statements and
acknowledgments that are reasonably required in respect of
other security interests affecting the Property of the
Restricted Parties or other parties delivering Security to
confirm that the collateral Encumbered by those
Encumbrances does not include the collateral Encumbered by
the Security or is a Permitted Encumbrance;
(d) a certificate of NSCL with copies of the 1999 Indenture,
the 2001 Indenture and any other documents necessary to
fully and fairly disclose all material terms of the 1999
Notes and 2001 Notes.
4.1.2 FINANCIAL INFORMATION - The Agent shall have received:
(a) a certificate of NSCL containing its audited consolidated
financial statements for its fiscal period ended 31
December 2001 and its unaudited consolidated financial
statements for its fiscal period ended 31 March 2002;
(b) a Compliance Certificate from NSCL for the fiscal period
ended 31 March 2002;
- 39 -
(c) a current Borrowing Base Certificate.
4.1.3 SECURITY AND OTHER DOCUMENTS - The Agent shall have received:
(a) duly executed copies of this Agreement and the Security,
duly registered as required;
(b) certificates representing the Pledged Shares, and executed
stock powers of attorney relating to those certificates;
(c) certificates of insurance or other evidence that the
covenants and conditions of the Credit Documents concerning
insurance coverage are being complied with;
(d) the Fee Agreement;
(e) agreements from other parties to Material Contracts that
have then been specifically assigned as part of the Trustee
Security (it being understood that such agreements have
previously been delivered and that no additional agreements
will be delivered as a condition of the initial Advance).
4.1.4 CORPORATE AND OTHER INFORMATION - The Agent shall have received:
(a) a certificate of each Restricted Party with copies of its
Constating Documents, a list of its officers and directors
with specimens of the signatures of those who are executing
Credit Documents on its behalf, and copies of the corporate
proceedings taken to authorize it to execute, deliver and
perform its obligations under the Credit Documents;
(b) evidence that the delivery of Credit Documents will not
contravene laws governing financial assistance or other
similar laws which affect the Credit Documents;
(c) evidence that the delivery of Credit Documents will not
contravene any material covenants or agreements to which
any Restricted Party is a party;
(d) consents that are required from the directors, shareholders
or partners of the Restricted Parties, either in connection
with the pledges of Pledged Shares or in connection with
any disposition of the Pledged Shares pursuant to the
Trustee Security (it being understood that consents
previously delivered to the Trustee need not be delivered
again).
4.1.5 OPINIONS - The Agent shall have received:
(a) the opinion of Xxxxxx Xxxxxx Xxxxxxx LLP, counsel to the
Lenders, addressed to the Agent and the Lenders;
- 40 -
(b) the opinion of Xxxxxx Xxxxxxx, Canadian counsel to the
Restricted Parties, addressed to the Agent, the Lenders and
Xxxxxx Xxxxxx Gervais LLP;
(c) the opinion of Shearman & Sterling, US counsel to the
Restricted Parties, addressed to the Agent and the Lenders;
(d) the opinions of local counsel, addressed to the Agent, the
Lenders and Xxxxxx Xxxxxx Xxxxxxx LLP.
4.1.6 OTHER MATTERS - The following conditions must also be satisfied:
(a) the Lenders must have received a certificate of NSCL, and
otherwise be satisfied, that no Material Adverse Change has
occurred since 31 March 2002;
(b) the Agent shall have received satisfactory evidence that
NSCL has obtained a Reference Debt Rating from each of
Xxxxx'x and S&P that expressly contemplates the issuance of
Capital Stock on a basis consistent with this Agreement and
have received satisfactory written or verbal confirmation
from each of them that they do not intend to amend their
Reference Debt Ratings;
(c) the Agent shall have received payment of all fees owing to
the Agent, the Lenders, or any of them and reimbursement of
all expenses incurred, including but not limited to legal
fees, in each case up to the time of the initial Advance;
(d) the Agent shall have received such other documents as the
Lenders may reasonably require.
4.1.7 DEADLINE FOR ADVANCE
The initial Advance under the Credits must be made on or before 19
July 2002, failing which the Credits may be terminated at the option of any of
the Lenders unless, before that date, other persons identified by the Borrower
and satisfactory to the remaining Lenders have agreed to become Lenders in place
of those Lenders who are unwilling to continue beyond that date.
4.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Lenders to make any Advance is subject to
the conditions precedent that:
(a) no Event of Default or (except in the case of a conversion
of a LIBOR Advance into a Base Rate Advance, the conversion
of a Bankers' Acceptance to a Prime Rate Advance or an
Advance for the purpose of paying a demand under an L/C)
Pending Event of Default has occurred and is continuing on
the Drawdown Date, or would result from making the
- 41 -
Advance, and without limiting the foregoing, all
representations and warranties of the Restricted Parties
contained in this Agreement, other than those expressly
stated to be made as of a specific date, are true on and as
of the date of the Advance;
(b) the Advance is in compliance with the terms of the 1999
Notes, 2001 Notes, Permitted Senior Secured Indebtedness,
Permitted Subordinated Secured Indebtedness and Permitted
Unsecured Indebtedness, to the extent they are outstanding
(including but not limited to any limitation on additional
indebtedness contained in the documentation relating to the
1999 Notes, 2001 Notes, Permitted Senior Secured
Indebtedness, Permitted Subordinated Secured Indebtedness
or Permitted Unsecured Indebtedness) and will not
contravene or cause a default under any of the terms of the
1999 Notes, 2001 Notes, Permitted Senior Secured
Indebtedness, Permitted Subordinated Secured Indebtedness
and Permitted Unsecured Indebtedness;
(c) the Advance would not result in the holders of the 1999
Notes or the 2001 Notes becoming entitled to be secured;
(d) the Advance would not result in the holders of any other
unsecured Debt outstanding at any time becoming entitled to
be secured unless the unsecured Debt, if secured, would
constitute Permitted Senior Secured Indebtedness or
Permitted Subordinated Secured Indebtedness;
(e) the Agent has received timely notice as required under
Section 5.6;
(f) all other terms and conditions of this Agreement upon which
an Advance may be obtained are fulfilled.
ARTICLE V
ADVANCES
5.1 LENDERS' OBLIGATIONS RELATING TO CREDITS 1 AND 2
Notwithstanding that Advances under Credit 2 are for the time
being made by RBC and its participation in Advances under Credit 1 is reduced,
and the participation of the other Lenders is increased, in accordance with
Section 5.2, it is the intention of the parties that the ultimate credit risk
and exposure of any Lender in respect of the Credit (including in respect of
L/Cs issued under Credit 2) be in accordance with its Proportionate Share of the
entire amount of the Credit. Accordingly, upon the Obligations becoming due and
payable under Section 8.2, each Lender shall (and hereby absolutely,
unconditionally and irrevocably agrees to) do all such things, including
delivery of indemnity agreements and assignments to other Lenders of Advances
made by RBC under Credit 2 or assignments to RBC of Advances made by other
Lenders under Credit 1 as shall be required to ensure that result. Any such
action on the part of the Lenders shall be binding on the Borrower.
- 42 -
If any Lender fails to take the actions required under this
Section, the Agent may, without prejudice to the other rights of the Lenders,
make such adjustments to the payments to the defaulting Lender under this
Agreement as are necessary to compensate the other Lenders for the defaulting
Lender's failure.
5.2 ADJUSTMENT OF PROPORTIONATE SHARES FOR SPECIFIC CREDITS
While RBC is the sole Lender making Advances under Credit 2, its
participation in Advances and payments (including commitment fees) under Credit
1 shall be reduced or eliminated and shall be adjusted by the Agent from time to
time, having regard to the maximum principal amounts of the Credits and the
overall Commitment of RBC to the Credits, so that RBC's separate Proportionate
Shares of Credits 1 and 2 reflect its overall Proportionate Share of the
Credits. The Agent shall amend Schedule E to this Agreement from time to time to
reflect such adjustments and notify NSCL and all affected Lenders of the
amendment.
5.3 EXCEPTIONS REGARDING PARTICULAR CREDITS
Subject to the provisions of Section 5.1 regarding the assignment
of interests under Credit 2 in the event of acceleration of payment of the
Obligations, the provisions of this Agreement do not apply to Credit 2 to the
extent that the provisions contemplate the participation in Advances and
payments under Credit 2 by any Lender other than RBC. All Advances under Credit
2 shall be made solely by RBC and records concerning Advances shall be
maintained solely by RBC, but RBC shall provide information concerning such
Advances to the Agent from time to time upon request. All payments of principal,
interest, fees and other amounts relating to Credit 2 shall be made solely to
RBC. In addition, any notices by the Borrower in connection with Credit 2 shall
be made to RBC, and notice and minimum amount requirements for Advances shall
not apply to Advances by way of overdraft under Credit 2.
In connection with Advances by way of overdraft, RBC shall
ascertain the positions or net positions of the Borrower's Canadian Dollar and
US Dollar accounts daily and, if the positions or net positions are debits in
favour of RBC, the debits will (if the Borrower is entitled to an Advance) be
deemed to be a Prime Rate Advance (in the case of Canadian Dollars) or a Base
Rate Advance (in the case of US Dollars) under Credit 2 in the respective
amounts of the debits. If the positions or net positions are credits in favour
of the Borrower, the credits will be deemed to be repayments of Prime Rate
Advances (in the case of Canadian Dollars) or Base Rate Advances (in the case of
US Dollars) under Credit 2 in the respective amounts of the credits.
5.4 EVIDENCE OF INDEBTEDNESS
The Obligations resulting from Prime Rate Advances, Base Rate
Advances and LIBOR Advances made by the Lenders shall be evidenced by records
maintained by the Agent, and by each Lender concerning those Advances it has
made. The Agent shall also maintain records of the Obligations resulting from
Advances by way of Bankers' Acceptances and L/Cs, and each Lender shall also
maintain records relating to Bankers' Acceptances that it has accepted. The
Issuing Bank shall also maintain records relating to
- 43 -
L/Cs that it has issued. The records maintained by the Agent, and by the Issuing
Bank relating to L/Cs, shall constitute, in the absence of manifest error,
conclusive evidence of the Obligations and all details relating thereto. The
failure of the Agent or any Lender to correctly record any such amount or date
shall not, however, adversely affect the obligation of the Borrower to pay the
Obligations in accordance with this Agreement.
5.5 CONVERSIONS
Subject to the other terms of this Agreement (including notice
requirements), the Borrower may from time to time convert all or any part of the
outstanding amount of any Advance into another form of Advance permitted by this
Agreement. A conversion does not, however, constitute a new advance of funds by
any Lender, but only an adjustment of the basis on which interest payable to the
Lenders will be calculated.
5.6 NOTICE OF ADVANCES AND PAYMENTS
The Borrower shall give the Agent irrevocable written notice, in
the form attached as Schedule A to this Agreement, of any request for any
Advance to it under the Credits. The Borrower shall also give the Agent
irrevocable written notice in the same form of any payment by it (whether
resulting from repayment, prepayment, rollover or conversion) of any Advance
under the Credits.
Notice shall be given on or before the third Business Day (but not
earlier than the fifth Business Day) prior to the date of any Advance or
payment, except that notice shall be given in respect of an Advance by way of
L/C at such earlier time as the Issuing Bank may reasonably require so that it
has sufficient time to review the proposed form of L/C, and except that notice
in respect of a Prime Rate Advance, Base Rate Advance or payment thereof may be
given on the Business Day before any such Advance or payment. Any cancellation
of part or all of any Credit shall only be effective on three Business Days'
notice as required by Section 5.7.
Notices shall be given not later than 1:00 p.m. (Toronto time) on
the date for notice. Payments (other than those being made solely from the
proceeds of rollovers and conversions) must be made prior to 1:00 p.m. (Toronto
time) on the date for payment. If a notice or payment is not given or made by
those times, it shall be deemed to have been given or made on the next Business
Day, unless all Lenders affected by the late notice or payment agree, in their
sole discretion, to accept a notice or payment at a later time as being
effective on the date it is given or made.
5.7 PREPAYMENTS AND REDUCTIONS
Subject to giving notice required by Section 5.6 and to the other
provisions of this Agreement, the Borrower may from time to time repay Advances
outstanding under any Credit without penalty, except that (i) LIBOR Advances may
not be paid prior to the end of the applicable LIBOR Periods unless the Borrower
indemnifies the Lenders for any loss or expense that the Lenders incur as a
result, including any breakage costs and (ii) Bankers' Acceptances may not be
paid prior to their respective maturity dates.
- 44 -
The Borrower may from time to time, by giving not less than three
Business Days' express written notice to the Agent and paying all accrued and
unpaid commitment fees to the effective date of cancellation, irrevocably notify
the Agent of the cancellation in whole or in part of the undrawn amount of any
Credit by an amount which shall be a minimum of $1,000,000 and a whole multiple
of $100,000, or the equivalent thereof in US Dollars. The Borrower shall have no
right to any increase in the committed amount of that Credit thereafter.
5.8 PRIME RATE, BASE RATE AND LIBOR ADVANCES
Upon timely fulfilment of all applicable conditions as set forth
in this Agreement, the Agent, in accordance with the procedures set forth in
Section 5.11, will make the requested amount of a Prime Rate Advance, Base Rate
Advance or LIBOR Advance available to the Borrower on the Drawdown Date
requested by the Borrower by transferring such amount to the Designated Account.
Each Prime Rate Advance shall be in an aggregate minimum amount of $1,000,000
and in a whole multiple of $100,000. Each Base Rate Advance shall be in an
aggregate minimum amount of US $1,000,000 and in a whole multiple of US
$100,000. Each LIBOR Advance shall be in minimum amount of US $1,000,000 and a
whole multiple of US $100,000. The Borrower shall pay interest to the Agent for
the account of the Lenders at the Branch of Account on any such Advances
outstanding to it from time to time hereunder at the applicable rate of interest
specified in Section 2.5.
Interest on Prime Rate Advances and Base Rate Advances shall be
payable monthly on each Interest Payment Date. Interest on LIBOR Advances shall
be payable on the last day of the applicable LIBOR Period and, if the LIBOR
Period is longer than three months, every three months after the date of the
relevant LIBOR Advance. All interest shall accrue from day to day and shall be
payable in arrears for the actual number of days elapsed from and including the
date of Advance or the previous date on which interest was payable, as the case
may be, to but excluding the date on which interest is payable, both before and
after maturity, default and judgment, with interest on overdue interest at the
same rate payable on demand. Overdue interest with respect to a LIBOR Advance
shall, upon the expiry of the LIBOR Period applicable to such LIBOR Advance,
bear interest, payable on demand, calculated at the rates applicable to Base
Rate Advances.
Interest calculated with reference to the Prime Rate shall be
calculated monthly on the basis of a calendar year. Interest calculated with
reference to the Base Rate shall be calculated monthly on the basis of a year of
365 days. Interest calculated with reference to the LIBO Rate shall be
calculated on the basis of a year of 360 days for a term equal to the applicable
LIBOR Period or, if a LIBOR Period is longer than three months, every three
months. Each rate of interest which is calculated with reference to a period
(the "DEEMED INTEREST PERIOD") that is less than the actual number of days in
the calendar year of calculation is, for the purposes of the INTEREST ACT
(Canada), equivalent to a rate based on a calendar year calculated by
multiplying such rate of interest by the actual number of days in the calendar
year of calculation and dividing by the number of days in the deemed interest
period.
- 45 -
5.9 LIBOR PERIODS
The Borrower may select, by irrevocable notice to the Agent, LIBOR
Periods of one, two, three or six months to apply to any particular LIBOR
Advance, provided that the Agent, in circumstances of market disruption or
illiquidity, shall have the discretion to restrict the LIBOR Period. LIBOR
Periods of other lengths shall also be available at the discretion of the
Lenders from time to time. No LIBOR Period may end on a date which is not a
Business Day or on a date which is later than the date on which the principal
amount of any Credit is required to be reduced (in whole or in part) if that
would adversely affect the Borrower's ability to cause the reduction of the
Credit in question. The Borrower shall from time to time select and give notice
to the Agent of the LIBOR Period for a LIBOR Advance which shall commence upon
the making of the LIBOR Advance or at the expiry of any outstanding LIBOR Period
applicable to a LIBOR Advance that is being rolled over. If the Borrower fails
to select and give the Agent notice of a LIBOR Period for a LIBOR Advance in
accordance with Section 5.6, the Lenders shall be deemed to have made a Base
Rate Advance to the Borrower to replace the maturing LIBO Rate Advance. A
rollover of a LIBOR Advance does not constitute a new advance of funds by the
Lenders, but rather an adjustment of the basis on which interest is charged.
5.10 TERMINATION OF LIBOR ADVANCES
If at any time a Lender determines in good faith and on reasonable
grounds (which determination shall be conclusive and binding on the Borrower)
that:
(a) adequate and reasonable means do not exist for ascertaining
the LIBO Rate applicable to a LIBOR Advance;
(b) the LIBO Rate does not adequately reflect the effective
cost to the Lender of making or maintaining a LIBOR
Advance, except as a result of the Lender failing to obtain
a deposit in the amount and for the term of the LIBOR
Advance; or
(c) it cannot readily obtain or retain funds in the London
interbank market in order to fund or maintain any LIBOR
Advance or cannot otherwise perform its obligations
hereunder with respect to any LIBOR Advance,
then upon written notice by the Agent to the Borrower,
(d) the right of the Borrower to request LIBOR Advances from
that Lender shall be and remain suspended until the Agent
notifies the Borrower that any condition causing such
determination no longer exists, and
(e) if the Lender is prevented from maintaining a LIBOR
Advance, the Borrower shall, at its option, either repay
the LIBOR Advances owing by it to that Lender or convert
the LIBOR Advances into other forms of Advance which are
permitted by this Agreement, but the Borrower shall be
responsible for any loss or expense that the Lender incurs
as a result,
- 46 -
including breakage costs if the Lender is prevented from
maintaining a LIBOR Advance for reasons beyond its control.
5.11 CO-ORDINATION OF PRIME RATE, BASE RATE AND LIBOR ADVANCES
Each Lender shall advance its Proportionate Share of each Prime
Rate Advance, Base Rate Advance and LIBOR Advance in accordance with the
following provisions:
(a) the Agent shall advise each Lender of its receipt of a
notice from the Borrower pursuant to Section 5.6 on the day
such notice is received and shall, as soon as possible,
advise each Lender of such Lender's Proportionate Share of
any Advance requested by the notice;
(b) each Lender shall deliver its Proportionate Share of the
Advance to the Agent not later than 11:00 a.m. (Toronto
time) on the Drawdown Date;
(c) if the Agent determines that all the conditions precedent
to an Advance specified in this Agreement have been met, it
shall advance to the Borrower the amount delivered by each
Lender by transferring it to the Designated Account prior
to 2:00 p.m. (Toronto time) on the Drawdown Date, but if
the conditions precedent to the Advance are not met by 2:00
p.m. (Toronto time) on the Drawdown Date, the Agent shall
return the funds to the Lenders or invest them in an
overnight investment as orally instructed by each Lender
until such time as the Advance is made; and
(d) if the Agent determines that a Lender's Proportionate Share
of an Advance would not be a whole multiple of $100,000 or
US $100,000, as the case may be, the amount to be advanced
by that Lender may be increased or reduced by the Agent in
its sole discretion to the extent necessary to reflect the
requirements of this sub-paragraph.
5.12 EXECUTION OF BANKERS' ACCEPTANCES
To facilitate the acceptance of Bankers' Acceptances hereunder,
the Borrower hereby appoints each Lender as its attorney to sign and endorse on
its behalf, as and when considered necessary by the Lender, an appropriate
number of orders in the form prescribed by that Lender.
Each Lender may, at its option, execute any order in handwriting
or by the facsimile or mechanical signature of any of its authorized officers,
and the Lenders are hereby authorized to accept or pay, as the case may be, any
order of the Borrower which purports to bear such a signature notwithstanding
that any such individual has ceased to be an authorized officer of the Lender.
Any such order or Bankers' Acceptance shall be as valid as if he or she were an
authorized officer at the date of issue of the order or Bankers' Acceptance.
Any order or Bankers' Acceptance signed by a Lender as attorney
for the Borrower, whether signed in handwriting or by the facsimile or
mechanical signature of an
- 47 -
authorized officer of a Lender may be dealt with by the Agent or any Lender to
all intents and purposes and shall bind the Borrower as if duly signed and
issued by the Borrower.
The receipt by the Agent of a request for an Advance by way of
Bankers' Acceptances shall be each Lender's sufficient authority to execute, and
each Lender shall, subject to the terms and conditions of this Agreement,
execute orders in accordance with such request and the advice of the Agent given
pursuant to Section 5.15, and the orders so executed shall thereupon be deemed
to have been presented for acceptance.
5.13 SALE OF BANKERS' ACCEPTANCES
It shall be the responsibility of each Lender to arrange, in
accordance with normal market practice, for the sale on each Drawdown Date of
the Bankers' Acceptances issued by the Borrower and to be accepted by that
Lender, failing which the Lender shall purchase its Bankers' Acceptances.
In accordance with the procedures set forth in Section 5.15, the
Agent will make the net proceeds of the requested Advance by way of Bankers'
Acceptances received by it from the Lenders available to the Borrower on the
Drawdown Date by transferring such amount to the Designated Account.
Notwithstanding the foregoing, if in the determination of the
Majority Lenders acting reasonably a market for Bankers' Acceptances does not
exist at any time, or the Lenders cannot for other reasons, after reasonable
efforts, readily sell Bankers' Acceptances or perform their other obligations
under this Agreement with respect to Bankers' Acceptances, then upon written
notice by the Agent to the Borrower, the Borrower's right to request Advances by
way of Bankers' Acceptances shall be and remain suspended until the Agent
notifies the Borrower that any condition causing such determination no longer
exists.
5.14 SIZE AND MATURITY OF BANKERS' ACCEPTANCES AND ROLLOVERS
Each Advance of Bankers' Acceptances shall be in a minimum amount
of $1,000,000 and a whole multiple of $100,000. Each Bankers' Acceptance shall
have a term of one, two, three or six months after the date of acceptance of the
order by a Lender, provided that the Agent, in circumstances of market
disruption or illiquidity, shall have the discretion to restrict the term or
maturity dates of Bankers' Acceptances. Bankers' Acceptances of other lengths
shall also be available at the discretion of the Lenders from time to time. No
Bankers' Acceptance may mature on a date which is not a Business Day or on a
date which is later than the date on which the principal amount of any Credit is
required to be reduced (in whole or in part) if that would adversely affect the
Borrower's ability to cause the reduction of the Credit in question. The face
amount at maturity of a Bankers' Acceptance may be renewed as a Bankers'
Acceptance or converted into another form of Advance permitted by this
Agreement.
5.15 CO-ORDINATION OF BA ADVANCES
Each Lender shall advance its Proportionate Share of each Advance
by way of Bankers' Acceptances in accordance with the provisions set forth
below.
- 48 -
5.15.1 The Agent, promptly following receipt of a notice from the
Borrower pursuant to Section 5.6 requesting an Advance by way of Bankers'
Acceptances, shall advise each Lender of the aggregate face amount and term(s)
of the Bankers' Acceptances to be accepted by it, which term(s) shall be
identical for all Lenders. The aggregate face amount of Bankers' Acceptances to
be accepted by a Lender shall be determined by the Agent by reference to the
respective Commitments of the Lenders, except that, if the face amount of a
Bankers' Acceptance would not be Cdn. $100,000 or a whole multiple thereof, the
face amount shall be increased or reduced by the Agent in its sole discretion to
the nearest whole multiple of Cdn. $100,000.
5.15.2 Each Lender shall transfer to the Agent at the Branch of Account
for value on each Drawdown Date immediately available Cdn. Dollars in an
aggregate amount equal to the BA Discount Proceeds of all Bankers' Acceptances
accepted and sold or purchased by the Lender on such Drawdown Date net of the
applicable Bankers' Acceptance Fee and net of the amount required to pay any of
its previously accepted Bankers' Acceptances that are maturing on the Drawdown
Date or any of its other Advances that are being converted to Bankers'
Acceptances on the Drawdown Date.
5.15.3 If the Agent determines that all the conditions precedent to an
Advance specified in this Agreement have been met, it shall advance to the
Borrower the amount delivered by each Lender by transferring it to the
Designated Account prior to 2:00 p.m. (Toronto time) on the Drawdown Date, but
if the conditions precedent to the Advance are not met by 2:00 p.m. (Toronto
time) on the Drawdown Date, the Agent shall return the funds to the Lenders or
invest them in an overnight investment as orally instructed by each Lender until
such time as the Advance is made.
5.15.4 Notwithstanding any other provision hereof, for the purpose of
determining the amount to be transferred by a Lender to the Agent for the
account of the Borrower in respect of the sale of any Bankers' Acceptance issued
by the Borrower and accepted by such Lender, the proceeds of sale thereof shall
be deemed to be an amount equal to the BA Discount Proceeds calculated with
respect thereto. Accordingly, in respect of any particular Bankers' Acceptance
accepted by it, a Lender in addition to its entitlement to retain the applicable
Bankers' Acceptance Fee for its own account (i) shall be entitled to retain for
its own account the amount, if any, by which the actual proceeds of sale thereof
exceed the BA Discount Proceeds calculated with respect thereto, and (ii) shall
be required to pay out of its own funds the amount, if any, by which the actual
proceeds of sale thereof are less than the BA Discount Proceeds calculated with
respect thereto.
5.15.5 Whenever the Borrower requests an Advance that includes Bankers'
Acceptances, each Lender that is not permitted by applicable law or by customary
market practice to accept a Bankers' Acceptance or any other Lender that in any
instance chooses not to accept a Bankers' Acceptance (each, a "NON BA LENDER")
shall, in lieu of accepting its PRO RATA amount of such Bankers' Acceptances,
make available to the Borrower on the Drawdown Date a loan (a "BA EQUIVALENT
LOAN") in Canadian Dollars and in an amount equal to the BA Discount Proceeds of
the Bankers' Acceptances that the Non BA Lender would have been required to
accept on the Drawdown Date if it were able to accept Bankers' Acceptances. Each
Non BA Lender shall also be entitled to deduct from the BA
- 49 -
Equivalent Loan an amount equal to the Bankers Acceptance Fee that would have
been applicable had it been able to accept Bankers' Acceptances. The BA
Equivalent Loan shall have a term equal to the term of the Bankers' Acceptances
that the Non BA Lender would otherwise have accepted and the Borrower shall, at
the end of that term, be obligated to pay the Non BA Lender an amount equal to
the aggregate face amount of the Bankers' Acceptances that it would otherwise
have accepted. All provisions of this Agreement applicable to Bankers'
Acceptances and Lenders that accept Bankers' Acceptances shall apply MUTATIS
MUTANDIS to BA Equivalent Loans and Non BA Lenders and, without limiting the
foregoing, Advances shall include BA Equivalent Loans.
5.16 PAYMENT OF BANKERS' ACCEPTANCES
The Borrower shall provide for the payment to the Agent at the
Branch of Account for the account of the applicable Lenders of the full face
amount of each Bankers' Acceptance accepted for its account on the earlier of
(i) the date of maturity of a Bankers' Acceptance and (ii) the date on which any
Obligations become due and payable pursuant to Section 8.2. The Lenders shall be
entitled to recover interest from the Borrower at a rate of interest per annum
equal to the rate applicable to Prime Rate Advances under the Credit under which
the Bankers' Acceptance was issued, compounded monthly, upon any amount payment
of which has not been provided for by the Borrower in accordance with this
Section. Interest shall be calculated from and including the date of maturity of
each Bankers' Acceptance up to but excluding the date such payment, and all
interest thereon, both before and after demand, default and judgment, is
provided for by the Borrower.
If the Borrower provides cash in response to any Obligations
becoming due and payable under Section 8.2, it shall be entitled to receive
interest on the cash provided in accordance with Section 11.16 as long as the
cash is held as Collateral.
5.17 DEEMED ADVANCE - BANKERS' ACCEPTANCES
Except for amounts which are paid from the proceeds of a rollover
of a Bankers' Acceptance or for which payment has otherwise been funded by the
Borrower, any amount which a Lender pays to any third party on or after the date
of maturity of a Bankers' Acceptance in satisfaction thereof or which is owing
to the Lender in respect of such a Bankers' Acceptance on or after the date of
maturity of such a Bankers' Acceptance, shall be deemed to be a Prime Rate
Advance to the Borrower under this Agreement. Each Lender shall forthwith give
notice of the making of such a Prime Rate Advance to the Borrower and the Agent
(which shall promptly give similar notice to the other Lenders). Interest shall
be payable on such Prime Rate Advances in accordance with the terms applicable
to Prime Rate Advances.
5.18 WAIVER
The Borrower shall not claim from a Lender any days of grace for
the payment at maturity of any Bankers' Acceptances presented and accepted by
the Lender pursuant to this Agreement. The Borrower waives any defence to
payment which might otherwise exist if for any reason a Bankers' Acceptance
shall be held by a Lender in its own right at the
- 50 -
maturity thereof, and the doctrine of merger shall not apply to any Bankers'
Acceptance that is at any time held by a Lender in its own right.
5.19 DEGREE OF CARE
Any executed orders to be used as Bankers' Acceptances shall be
held in safekeeping with the same degree of care as if they were the Lender's
own property, and shall be kept at the place at which such orders are ordinarily
held by such Lender.
5.20 INDEMNITY
The Borrower shall indemnify and hold the Lenders, and each of
them, harmless from any loss, cost, damage or expense with respect to any
Bankers' Acceptance dealt with by the Lenders for the Borrower's account, but
shall not be obliged to indemnify a Lender for any loss, cost, damage or expense
caused by the gross negligence or wilful misconduct of that Lender.
5.21 OBLIGATIONS ABSOLUTE
The obligations of the Borrower with respect to Bankers'
Acceptances under this Agreement shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any order
accepted by a Lender as a Bankers' Acceptance; or
(ii) the existence of any claim, set-off, defence or
other right which the Borrower may have at any time
against the holder of a Bankers' Acceptance, a
Lender or any other person or entity, whether in
connection with this Agreement or otherwise.
5.22 SHORTFALL ON DRAWDOWNS, ROLLOVERS AND CONVERSIONS
The Borrower agrees that:
(a) the difference between the amount of an Advance requested
by the Borrower by way of Bankers' Acceptances and the
actual proceeds of the Bankers' Acceptances;
(b) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to pay a maturing
Bankers' Acceptance, if a Bankers' Acceptance is being
rolled over; and
(c) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to repay any Advance
which is being converted to a Bankers' Acceptance;
- 51 -
shall be funded and paid by the Borrower from its own resources, by 11:00 a.m.
on the day of the Advance or may be advanced as a Prime Rate Advance under a
Credit if the Borrower is otherwise entitled to an Advance under the Credit.
5.23 PROHIBITED USE OF L/CS AND BANKERS' ACCEPTANCES
The Borrower shall not enter into any agreement or arrangement of
any kind with any person to whom Bankers' Acceptances have been delivered
whereby the Borrower undertakes to replace such Bankers' Acceptances on a
continuing basis with other Bankers' Acceptances, nor shall the Borrower
directly or indirectly take, use or provide Bankers' Acceptances or L/Cs as
security for loans or advances from any other person. Notwithstanding the
preceding sentence, the Borrower may use L/Cs as security for industrial
development bonds and other similar types of instruments which may be
outstanding in connection with any Property acquired by any Restricted Party,
directly or indirectly. Such use of an L/C shall be considered to be financial
assistance for the purpose of Section 3.1.4(b). The Borrower may also use L/Cs
to secure bankers' acceptances maturing on or before 21 October 2002 that are
owing to National Bank of Canada and Comerica Bank in connection with the credit
agreement dated as of 14 August 2001.
5.24 ISSUANCE AND MATURITY OF L/CS
A request for an Advance by way of L/C shall be made by a Borrower
in accordance with Section 5.6, except that the request shall be sent directly
to the Issuing Bank. A request shall include the details of the L/C to be
issued. The Issuing Bank shall promptly notify the Borrower of any comment
concerning the form of the L/C requested by the Borrower and shall, if the
Borrower is otherwise entitled to an Advance, issue the L/C to the Borrower at
the branch where its account is maintained on the Drawdown Date or as soon
thereafter as the Issuing Bank is satisfied with the form of L/C to be issued.
Each L/C issued under this Agreement shall have a term which is
not more than one year after its issuance date or renewal date and does not
extend beyond the then-current maturity date of the Credits. Collateral shall be
provided for the benefit of the Lenders promptly upon demand by the Agent. An
L/C may be renewed by the Borrower subject to complying with the terms of this
Agreement applicable to an Advance by way of L/C.
5.25 PAYMENT OF L/C FEES
Payment of L/C Fees shall be made to the Issuing Bank, shall be
made at the time of issuance or renewal of each L/C and shall be refunded PRO
RATA if the L/C is drawn, reduced in amount or terminated before its expiry
date. Fees shall be calculated for the period from and including the date of
issuance (or the day following the previous expiry date in the case of a
renewal) to and including the date of expiry of the relevant L/C.
5.26 PAYMENT OF L/CS
The Borrower shall provide for the payment to the Issuing Bank at
the branch where the L/C was issued of the full face amount of each L/C (or the
amount actually paid in the case of a partial payment) on the earlier of (i) the
date on which the Issuing Bank makes a payment to the beneficiary of an L/C, and
(ii) the date on which any Obligations
- 52 -
become due and payable pursuant to Section 8.2. The Issuing Bank shall be
entitled to recover interest from the Borrower at a rate of interest per annum
equal to the rate applicable to Prime Rate Advances (in the case of Canadian
Dollar L/Cs) or Base Rate Advances (in the case of US Dollar L/Cs), compounded
monthly, upon any amount payment of which has not been provided for by the
Borrower in accordance with this Section. Interest shall be calculated from and
including the date on which the Issuing Bank makes a payment to the beneficiary
of an L/C, up to but excluding the date such payment, and all interest thereon,
both before and after demand, default and judgment, is provided for by the
Borrower.
The obligation of the Borrower to reimburse the Issuing Bank for a
payment to a beneficiary of an L/C shall be absolute and unconditional, without
prejudice to the Borrower's right to subsequently claim damages for matters
arising from the Issuing Bank's wilful misconduct or gross negligence, and shall
not be reduced by any demand or other request for payment of an L/C (a "DEMAND")
paid or acted upon in good faith and in conformity with laws, regulations or
customs applicable thereto being invalid, insufficient, fraudulent or forged,
nor shall the Borrower's obligation be subject to any defence or be affected by
any right of set-off, counter-claim or recoupment which the Borrower may now or
hereafter have against the beneficiary, the Issuing Bank or any other person for
any reason whatsoever, including the fact that the Issuing Bank paid a Demand or
Demands (if applicable) aggregating up to the amount of the L/C notwithstanding
any contrary instructions from the Borrower to the Issuing Bank or the
occurrence of any event including, but not limited to, the commencement of legal
proceedings to prohibit payment by the Issuing Bank of a Demand. Any action,
inaction or omission taken or suffered by the Issuing Bank under or in
connection with an L/C or any Demand, if in good faith and in conformity with
laws, regulations or customs applicable thereto shall be binding on the Borrower
and shall not place any Lender under any resulting liability to the Borrower.
Without limiting the generality of the foregoing, the Issuing Bank may receive,
accept, or pay as complying with the terms of the L/C, any Demand otherwise in
order which may be signed by, or issued to, any administrator, executor, trustee
in bankruptcy, receiver or other person or entity acting as the representative
or in place of, the beneficiary.
If the Borrower provides cash in response to any Obligations
becoming due and payable under Section 8.2, it shall be entitled to receive
interest on the cash provided in accordance with Section 11.16 as long as the
cash is held as Collateral.
5.27 DEEMED ADVANCE - L/CS
Except for amounts which have been funded by the Borrower, any
amount which the Issuing Bank pays to any third party in respect of an L/C in
satisfaction or partial satisfaction thereof shall be deemed to be a Prime Rate
Advance in the case of Canadian Dollar L/Cs or a Base Rate Advance in the case
of US Dollar L/Cs, in each case under the Credit under which the L/C was issued.
Any amount which the Issuing Bank pays to any third party in respect of an L/C
denominated in Euros or Japanese yen in satisfaction or partial satisfaction
thereof shall be promptly converted by the Issuing Bank to Canadian Dollars in
accordance with its customary practices for conversion of currencies and the
amount of Canadian Dollars into which the amount paid is converted shall be
deemed to be a Prime Rate Advance under the Credit under which the L/C was
issued. The Issuing Bank
- 53 -
shall forthwith give notice of the making of such an Advance to the Borrower.
Interest shall be payable on such Advances in accordance with the terms
applicable to such Advances.
5.28 PROHIBITED RATES OF INTEREST
It is the intention of the parties to comply with applicable usury
laws now or hereafter enacted. Accordingly, notwithstanding any other provisions
of this Agreement or any other Credit Document, in no event shall any Credit
Document require the payment or permit the collection of interest or other
amounts in an amount or at a rate in excess of the amount or rate that is
permitted by law or in an amount or at a rate that would result in the receipt
by the Lenders or the Agent of interest at a criminal rate, as the terms
"interest" and "criminal rate" are defined under the CRIMINAL CODE (Canada).
Where more than one such law is applicable to any Restricted Party, that
Restricted Party shall not be obliged to make payment in an amount or at a rate
higher than the lowest amount or rate permitted by such laws. If from any
circumstances whatever, fulfilment of any provision of any Credit Document shall
involve transcending the limit of validity prescribed by applicable law for the
collection or charging of interest, the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from any such circumstances the
Agent or the Lenders shall ever receive anything of value as interest or deemed
interest under any Credit Document in an amount that would exceed the highest
lawful rate of interest permitted by applicable law, such amount that would be
excessive interest shall be applied to the reduction of the principal amount of
the relevant Credit, and not to the payment of interest, or if such excessive
interest exceeds the unpaid principal balance of the relevant Credit, the amount
exceeding the unpaid balance shall be refunded to the Borrower. In determining
whether or not the interest paid or payable under any specified contingency
exceeds the highest lawful rate, the Restricted Parties, the Agent and the
Lenders shall, to the maximum extent permitted by applicable law, (a)
characterize any non-principal payment as an expense, fee or premium rather than
as interest, (b) exclude voluntary prepayments and the effects thereof, (c)
amortize, prorate, allocate and spread the total amount of interest throughout
the term of such indebtedness so that interest thereon does not exceed the
maximum amount permitted by applicable law, and/or (d) allocate interest between
portions of such indebtedness to the end that no such portion shall bear
interest at a rate greater than that permitted by applicable law. For the
purposes of the application of the CRIMINAL CODE (Canada), the effective annual
rate of interest shall be determined in accordance with generally accepted
actuarial practices and principles and in the event of any dispute, a
certificate of a Fellow of the Canadian Institute of Actuaries appointed by the
Agent shall be conclusive for the purpose of such determination.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
Each Restricted Party represents and warrants to the Lenders as
specified below.
6.1.1 CORPORATE MATTERS
- 54 -
(a) It is a duly incorporated or amalgamated and validly
existing corporation or a duly organized and validly
existing partnership, as the case may be, and has the power
and authority to enter into and perform its obligations
under any Credit Documents to which it is or will be a
party, to own its Property and to carry on the business in
which it is engaged.
(b) It is in compliance with the requirements for carrying on
business in all jurisdictions in which it carries on
business except to the extent that the non-compliance would
not have a material adverse effect on the ability of the
Restricted Parties, taken as a whole, to carry on business.
(c) It has all Permits required as of the date hereof, to enter
into and perform its obligations under any Credit Documents
to which it is or will be a party, to own its Property and
to carry on the business in which it is engaged, except to
the extent that the absence of Permits would not have a
material adverse effect on the ability of the Restricted
Parties, taken as a whole, to do all things contemplated in
this paragraph.
(d) The entering into and the performance by it of the Credit
Documents to which it is or will be a party (i) have been
duly authorized by all necessary corporate action on its
part, (ii) do not and will not violate its Constating
Documents, any Requirement of Law, the 1999 Indenture, the
2001 Indenture or the terms of any Permitted Senior Secured
Indebtedness, Permitted Subordinated Secured Indebtedness
or Permitted Unsecured Indebtedness, (iii) do not and will
not violate any Permit or any Contract not mentioned in
item (ii) to which it is a party, except to the extent that
any violation would not cause a Material Adverse Change,
and (iv) will not result in the creation of any Encumbrance
on any of its Property or require it to create any
Encumbrance on any of its Property other than, in either
case, Permitted Encumbrances and will not result in the
forfeiture of any of its Property.
(e) Its Constating Documents do not restrict the power of its
directors to borrow money, to give financial assistance by
way of loan, guarantee or otherwise, or to encumber any or
all of its present and future Property to secure the
Obligations, except for restrictions under any Constating
Document which have been complied with in connection with
the Credit Documents and the Permitted Obligations.
(f) It is not in violation of any term of its Constating
Documents and is not in violation of any Requirement of
Law, Permit or Contract, the violation of which would
materially and adversely affect its ability to own its
Property and conduct its business, nor will its execution,
delivery and performance of any Credit Documents to which
it is a party result in any such violation.
(g) It has good and marketable title to or the right to use or
good, valid and subsisting leases or licenses in respect of
all of the Property necessary for
- 55 -
the operation of its business, free and clear of any
Encumbrances, other than Permitted Encumbrances, and no
person has any agreement or right to acquire any of its
Property out of the ordinary course of business.
6.1.2 CREDIT DOCUMENTS
(a) The Credit Documents to which it is or will be a party have
been or will be duly executed and delivered by it and, when
executed and delivered, will constitute legal, valid and
binding obligations enforceable against it in accordance
with their respective terms, subject to the availability of
equitable remedies and the effect of bankruptcy, insolvency
and similar laws affecting the rights of creditors
generally.
(b) As of the date of this Agreement, no Event of Default or
Pending Event of Default has occurred and is continuing.
(c) From and after the date on which the relevant Security is
delivered, the Lenders will have the benefit of legal,
valid and enforceable security upon all of its present and
future Property subject only to Permitted Encumbrances, the
availability of equitable remedies, and the effect of
bankruptcy, insolvency and similar laws affecting the
rights of creditors generally.
6.1.3 LITIGATION, FINANCIAL STATEMENTS ETC.
(a) As of the date of execution of this Agreement, there are no
litigation, arbitration or administrative proceedings or
industrial or labour disputes outstanding and, to its
knowledge after having made reasonable inquiry, there are
no proceedings or disputes pending or threatened, against
it which, in either case, could constitute a Material
Adverse Change, except as disclosed on Schedule J.
(b) All of the historical financial statements which have been
furnished to the Lenders, or any of them, in connection
with this Agreement are complete and, to its knowledge
after reasonable inquiry, fairly present in all material
respects the financial position of NSCL on a consolidated
basis as of the dates referred to therein and have been
prepared in accordance with GAAP except, in the case of
quarterly financial statements, notes to the statements and
normal year-end audit adjustments required by GAAP are not
included.
(c) All projections, including forecasts, budgets, PRO FORMAS
and business plans provided to the Agent were prepared in
good faith based on assumptions which were believed to be
reasonable and were believed at the time of preparation to
be reasonable estimates of the prospects of the businesses
referred to therein, and all material changes in the
estimates of the prospects of those businesses occurring
between the time of
- 56 -
preparation and the date of this Agreement have been
disclosed to the Lenders in writing.
(d) As of the date of execution of this Agreement, it has no
liabilities (contingent or other) or other obligations of
the type required to be included in the consolidated
financial statements of the Restricted Parties in
accordance with GAAP which are not fully included on NSCL's
audited financial statements provided to the Lenders for
its fiscal year ended 31 December 2001 or NSCL's unaudited
financial statements for the fiscal period ended 31 March
2002, other than liabilities and obligations incurred
thereafter in the ordinary course of its business and the
Obligations, none of which constitutes a Material Adverse
Change.
(e) It is not in default under any of the Permitted
Encumbrances to an extent that would materially and
adversely affect the financial position of NSCL on a
consolidated basis, or the Restricted Party's ability to
carry on its business or perform its obligations under the
Credit Documents to which it is or will be a party.
(f) There is no fact that it has not disclosed to the Agent in
writing that materially and adversely affects its ability
to perform its obligations under the Credit Documents to
which it is or will be a party.
6.1.4 OTHER DEBT
(a) This Agreement is in compliance with the terms of the 1999
Notes, the 2001 Notes, and any outstanding Permitted Senior
Secured Indebtedness, Permitted Subordinated Secured
Indebtedness and Permitted Unsecured Indebtedness
(including but not limited to any limitation on additional
indebtedness contained in the documentation relating to the
1999 Notes, 2001 Notes, Permitted Senior Secured
Indebtedness, Permitted Subordinated Secured Indebtedness
and Permitted Unsecured Indebtedness) and will not
contravene or cause a default under any of the 1999 Notes,
2001 Notes, Permitted Senior Secured Indebtedness,
Permitted Subordinated Secured Indebtedness and Permitted
Unsecured Indebtedness.
(b) All Obligations are "Permitted Indebtedness" under the 1999
Indenture, "Permitted Debt" under the 0000 Xxxxxxxxx and
the equivalent of those terms under the terms of any
outstanding Permitted Senior Secured Indebtedness,
Permitted Subordinated Secured Indebtedness and Permitted
Unsecured Indebtedness.
(c) All Obligations are "Senior Indebtedness" and "Designated
Senior Indebtedness" or the equivalent of those terms under
the terms of any outstanding Permitted Subordinated Secured
Indebtedness and the terms of any Permitted Unsecured
Indebtedness which is expressed to be
- 57 -
subordinated and are entitled to the benefit of all
subordination provisions under the terms of any such Debt.
(d) The Credits constitute "New Credit Facilities" under the
terms of the 1999 Notes and the 2001 Notes. As of 30 June
2002, the Threshold Amount was not less than $600,000,000.
6.1.5 PROPERTY AND CAPITAL STOCK
(a) Schedule F fully and fairly describes as of the date of
this Agreement, the ownership of all of its issued and
outstanding Capital Stock, the Capital Stock in Restricted
Parties and other persons that it owns, the nature of the
business that it carries on, the locations of its head
office (and chief executive office, if different) and its
freehold (or fee as the case may be) and leasehold real
property, and the jurisdictions in which its other Property
(other than accounts receivable) are located.
(b) The Pledged Shares are validly issued as fully paid and
non-assessable Capital Stock of the respective Restricted
Parties or other issuers.
(c) The consents of the shareholders or directors of the
respective Restricted Parties or other issuers and any
other consents that will be delivered at or prior to the
time that the Pledged Shares become part of the Trustee
Security are the only consents that are necessary or
desirable in connection with the pledges of the Pledged
Shares as part of the Trustee Security (including the
enforcement of the pledges), and will be kept in full force
and effect as long as they remain necessary or desirable.
6.1.6 ENVIRONMENTAL MATTERS
(a) To its knowledge having made all due inquiry, (i) there are
no active or abandoned underground storage tanks located on
any land which it occupies or controls, except those that
comply with applicable Requirements of Law, (ii) there are
no Hazardous Materials located on, above or below the
surface of any land which it occupies or controls or
contained in the soil or water constituting such land
(except those that are in compliance with applicable
Requirements of Law), (iii) no release of Hazardous
Materials has occurred on or from such land (except those
minor items that are in accordance with Permits or
otherwise do not violate applicable Requirements of Law)
and (iv) no land that it occupies or controls has been used
as a landfill or waste disposal site, except in each case
as disclosed on Schedule J or as would not reasonably be
expected to cause a Material Adverse Change.
(b) Its business and Property have been and are being owned,
occupied and operated in substantial compliance with
applicable Requirements of Law intended to protect the
environment (including, without limitation, laws respecting
the disposal or emission of Hazardous Materials), to the
best of
- 58 -
its knowledge after reasonable inquiry there are no
breaches thereof and no enforcement actions in respect
thereof are threatened or pending which, in any such case,
would reasonably be expected to cause a Material Adverse
Change.
6.1.7 TAXES AND WITHHOLDINGS
(a) It has (i) duly filed on a timely basis all material tax
returns, elections and reports required to be filed by it
and has paid, collected and remitted all material Taxes due
and payable, collectible or remittable by it, except Taxes
for which instalments have been paid based on reasonable
estimates pending final assessments, or the validity of
which is being contested by it diligently and in good faith
by appropriate proceedings and the payment of which has
been secured by such arrangements (including Collateral) as
the Lenders may require, (ii) made adequate provision for
material Taxes payable by it for the current period and any
previous period for which tax returns are not yet required
to be filed and, except as disclosed in writing to the
Agent from time to time, there are no actions, proceedings
or claims pending or, to its knowledge, threatened, against
it in respect of material Taxes, and (iii) collected and
remitted to the appropriate tax authority when required by
law to do so all material amounts collectible and
remittable in respect of goods and services tax and similar
provincial or state Taxes, and has paid all such material
amounts payable by it on account of sales Taxes including
goods and services and value-added taxes, except in each
case Taxes for which instalments have been paid based on
reasonable estimates pending final assessments, or the
validity of which is being contested by it diligently and
in good faith by appropriate proceedings and the payment of
which has been secured by such arrangements (including
Collateral) as the Lenders may require (it being agreed
that, for purposes of this paragraph, the amount of a Tax
is material if it equals or exceeds Cdn. $10,000,000 or the
equivalent thereof in another currency).
(b) It has withheld from each payment made to any of its past
or present employees, officers or directors, and to any
non-resident of the country in which it is resident, the
amount of all material Taxes and other deductions required
to be withheld therefrom and has paid the same to the
appropriate tax authority within the time required under
any applicable legislation (it being agreed that, for
purposes of this paragraph, the amount of a Tax is material
if it equals or exceeds Cdn. $2,000,000 or the equivalent
thereof in another currency).
6.1.8 ABORIGINAL CLAIMS
(a) Except for matters which would not, in the aggregate,
reasonably be expected to cause a Material Adverse Change,
no Aboriginal group has asserted, by virtue of its
Aboriginal status:
- 59 -
(i) any claim against any Property of a Restricted
Party;
(ii) any right, title, benefit or interest in any real
property of a Restricted Party;
(iii) any claim of jurisdiction over any real property of
a Restricted Party; or
(iv) any right to be consulted with respect to any change
in the use, development or improvement in any real
property of a Restricted Party.
(b) Except for matters which would not, in the aggregate,
reasonably be expected to cause a Material Adverse Change,
it is not aware of and has not received, in relation to any
of its real property, any notice of:
(i) the existence or potential existence of any
Aboriginal heritage sites;
(ii) any actual or alleged interference with Aboriginal
rights; or
(iii) any specific or comprehensive claims.
(c) Except for matters which would not, in the aggregate,
reasonably be expected to cause a Material Adverse Change,
it has disclosed to the Lenders all written correspondence,
notices or minutes of meetings received from or involving
any Aboriginal group relating to any claim, conflict or
controversy.
6.1.9 OTHER MATTERS
(a) Neither it nor any of its Subsidiaries is an "investment
company" within the meaning of the INVESTMENT COMPANY ACT
OF 1940 (United States), as amended, or a "holding
company", or a "subsidiary company" of a "holding company",
or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," within the
meaning of the PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
(United States), as amended.
(b) None of the proceeds of any Advance shall be used to
purchase or carry, or to reduce or retire or refinance any
credit incurred to purchase or carry, any margin stock
(within the meaning of Regulations U and X of the Board of
Governors of the Federal Reserve System of the United
States) or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
- 60 -
6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Unless expressly stated to be made as of a specific date, the
representations and warranties made in this Agreement shall survive the
execution of this Agreement and all other Credit Documents, and shall be deemed
to be repeated as of the date of each Advance (including any deemed Advance),
subject to modifications made by NSCL to the Lenders in writing and accepted by
the Majority Lenders, acting reasonably. The Lenders shall be deemed to have
relied upon such representations and warranties at each such time as a condition
of making an Advance hereunder or continuing to extend the Credits hereunder.
ARTICLE VII
COVENANTS AND CONDITIONS
7.1 FINANCIAL COVENANTS
7.1.1 During the term of this Agreement, the Funded Debt Ratio shall not
at any time exceed 0.60 to 1.
7.1.2 During the term of this Agreement, NSCL shall at all times
maintain a consolidated shareholders' equity of not less than a minimum of
$779,300,000. The minimum shall increase annually as of 31 December in each
year, beginning in 2002, by an amount equal to 50% of NSCL's consolidated net
income for each year, excluding any year in which NSCL incurs a consolidated net
loss.
7.1.3 During the term of this Agreement, the Secured Debt Ratio shall
not at any time exceed 0.30 to 1.
7.1.4 At all times during the term of this Agreement when Permitted
Senior Secured Indebtedness or Permitted Subordinated Secured Indebtness is
outstanding and the Funded Debt Ratio is greater than 0.40 to 1, NSCL shall
maintain an Interest Coverage Ratio of not less than the following:
PERIOD INTEREST COVERAGE RATIO
------ -----------------------
to 31 December 2002 1.10 to 1
from 1 January 2003 to 31 March 2003 1.75 to 1
on and after 1 April 2003 2.50 to 1
7.2 POSITIVE COVENANTS
During the term of this Agreement, each Restricted Party shall
perform the covenants specified below.
7.2.1 PAYMENT; OPERATION OF BUSINESS
(a) It shall duly and punctually pay the Obligations, either as
Borrower or in accordance with its guarantee of the
Obligations, at the times and places and in the manner
required by the terms thereof.
- 61 -
(b) It shall keep proper books of account and record, maintain
its corporate status in all jurisdictions where it carries
on business, operate its business in accordance with sound
business practice and in compliance in all material
respects with all applicable Requirements of Law (including
but not limited to those regarding ownership of persons
carrying on the type of business that it carries on) and
Material Contracts and Material Permits.
(c) It shall maintain in good standing and shall obtain, as and
when required, all Permits and Contracts which may be
material to permit it to acquire, own, operate and maintain
its business and Property, lease any land forming part of
its Property, and perform its obligations under the Credit
Documents to which it is or will be a party.
(d) At any time after Permitted Senior Secured Indebtedness in
an aggregate principal amount of $100,000,000 or more has
been incurred during the term of this Agreement, it shall
not (i) amend any provision of any Material Contract to
which it is a party or give any consent, concession or
waiver with respect thereto which, in either case, would
cause a Material Adverse Change, or (ii) cancel, terminate
or accept the surrender of any Material Contract if the
cancellation, termination or surrender would cause a
Material Adverse Change, unless a Replacement Contract is
entered into in respect of the Material Contract in
question.
7.2.2 INSPECTION
It shall at all reasonable times and from time to time upon
reasonable notice, permit representatives of the Lenders to inspect any of its
Property and to examine and take extracts from its financial books, accounts and
records, including but not limited to accounts and records stored in computer
data banks and computer software systems, and to discuss its financial condition
with its senior officers and (in the presence of such of its representatives as
it may designate) its auditors, the reasonable expense of all of which shall be
paid by the Borrower provided that:
(a) the Lenders' exercise of their rights under this paragraph
does not unreasonably interfere with the operations of the
Restricted Parties;
(b) the Lenders maintain the confidentiality of all information
they receive in accordance with usual requirements of
banker / customer confidentiality, and do not disclose or
use it except for the purposes of this Agreement;
(c) any representative of a Lender who is not an employee of
that Lender has executed and delivered an agreement in
favour of the Restricted Parties and the Lenders to use any
information obtained as a result of any inspection or
examination on behalf of a Lender only for the purposes of
this Agreement, and has established to the reasonable
satisfaction of NSCL and the Lenders that there is no
inherent conflict of interest between the business and
clientele of the Restricted Parties and the business and
clientele (other than the Lenders) of that representative.
- 62 -
7.2.3 INSURANCE
(a) It shall maintain insurance on all its Property with
financially sound and reputable insurance companies or
associations including all-risk property insurance,
comprehensive general liability insurance and business
interruption insurance, in amounts, with deductibles or
retentions, and against risks that would be maintained by a
prudent owner carrying on similar businesses in similar
locations, and shall furnish to the Agent, on written
request, satisfactory evidence of the insurance carried.
(b) It shall cause policies of insurance referred to above to
contain a standard mortgage clause and other customary
endorsements for the benefit of lenders (including
endorsements naming the Trustee as loss payee and
additional insured as required by the Agent), all in a form
acceptable to the Lenders acting reasonably, and a
provision that such policies will not be amended in any
manner which is prejudicial to the Lenders or be cancelled
without 30 days' prior written notice being given to the
Trustee by the issuers thereof. It shall also, subject to
Section 7.6, cause all of the proceeds of insurance under
such policies to be made payable and to be paid to the
Trustee.
(c) Whenever reasonably requested in writing by the Agent, it
shall cause certified copies of the policies of insurance
carried pursuant to this Section to be delivered to the
Agent.
(d) It shall provide the Agent promptly with such other
evidence of the insurance as the Lenders may from time to
time reasonably require.
7.2.4 TAXES, ENCUMBRANCES AND WITHHOLDINGS
(a) It shall pay all Taxes and Encumbrances in respect of
itself or its Property as they become due and payable
unless they are being contested in good faith by
appropriate proceedings and it has made adequate provision
for payment of the contested amount.
(b) It shall withhold from each payment made to any of its past
or present employees, officers or directors, and to any
non-resident of the country in which it is resident, the
amount of all Taxes and other deductions required to be
withheld therefrom and pay the same to the appropriate tax
authority within the time required under any applicable
Requirement of Law.
(c) It shall collect from all Persons the amount of all Taxes
required to be collected from them and remit the same to
the proper tax or other receiving officers within the time
required under any applicable Requirement of Law.
7.2.5 OTHER MATTERS
- 63 -
(a) It shall, immediately upon receipt, deliver to the Trustee
certificates representing all Capital Stock of other
Restricted Parties or of other persons in which it owns
Capital Stock that it acquires after the date that Capital
Stock of the Restricted Parties or other persons is first
delivered as part of the Trustee Security, together with
executed stock powers of attorney relating to those
certificates (or if certificates in respect of such Capital
Stock are not available, take such other steps to perfect
the Trustee Security relating to such Capital Stock as the
Agent requires).
(b) It shall observe and comply in all material respects at all
times with the provisions of all Environmental Laws and
shall provide such evidence of on-going compliance with
Environmental Laws as the Majority Lenders may reasonably
require from time to time including, without limitation, if
so requested by the Majority Lenders, acting reasonably
upon reasonable cause, arranging for one or more
environmental site assessment and/or compliance audits
(each consisting of a non-intrusive phase I audit and
recommendations with respect to the findings described
therein and such other audits or investigations recommended
in each such phase I audit, including, without limitation,
an intrusive phase II audit) and reports thereon by an
independent consultant engaged by the Restricted Parties
and acceptable to the Majority Lenders, acting reasonably.
It shall also remove, clean up or otherwise remedy the
matters referred to in Section 7.3.2(d).
(c) If it is listed on Schedule I, it shall comply with the
limits on its Property, business activities and other
matters described on that Schedule and, if it owns Capital
Stock of any other person listed on Schedule , it shall
cause that person to comply with the limits on its
Property, business activities and other matters described
on that Schedule I.
(d) It shall diligently and in good faith use all commercially
reasonable efforts to obtain agreements in form and
substance satisfactory to the Agent from other parties to
Material Contracts that are specifically assigned as part
of the Trustee Security from time to time after the
agreements contemplated in Section 3.1.8 have been
obtained.
(e) It shall diligently and in good faith use all commercially
reasonable efforts to obtain consents in respect of the
Security in form and substance satisfactory to the Agent
from landlords of material leasehold real property
designated by the Agent from time to time in which any
Restricted Party carries on business.
(f) In the case of NSCL, if it issues Permitted Senior Secured
Indebtedness, Permitted Subordinated Secured Indebtedness
or Permitted Unsecured Indebtedness, it shall concurrently
deliver a certificate to the Agent with copies of the
indenture or agreement under which that Debt is incurred
and
- 64 -
any other documents necessary to fully and fairly disclose
all material terms thereof.
7.3 REPORTING AND NOTICE REQUIREMENTS
During the term of this Agreement, NSCL shall deliver or cause the
delivery of the periodic reports specified below and shall give notices in the
circumstances specified below, or cause notices to be given. All financial
statements and other reports shall be in a form satisfactory to the Lenders and
all financial statements shall be prepared in accordance with GAAP. NSCL shall,
as directed by the Agent from time to time, either distribute financial
statements and other reports directly to the Lenders or supply the Agent with
sufficient copies of financial statements and other reports to allow the Agent
to distribute them to the Lenders.
7.3.1 PERIODIC REPORTS
(a) NSCL shall, as soon as practicable and in any event within
30 days of the end of each calendar month, prepare and
deliver a Borrowing Base Certificate and a statement of the
Restricted Parties' inventory and aged accounts receivable
(including amounts owing by account debtor name for account
debtors owing an aggregate of $1,000,000 or more each) as
at the end of that month. The Borrowing Base Certificate
may be delivered by e-mail and, if delivered by NSCL by
e-mail, it shall be considered to be a representation by
NSCL even if not manually signed by NSCL.
(b) NSCL shall, as soon as practicable and in any event within
45 days of the end of each of its fiscal quarters
(including the fourth quarter), prepare and deliver its
interim unaudited consolidated financial statements,
modified to exclude persons that are not Restricted
Parties, and the interim unaudited financial statements of
the Borrower, as at the end of such quarter, in each case
including, without limitation, balance sheet, statement of
income and retained earnings and statement of changes in
financial position.
(c) NSCL shall, as soon as practicable and in any event within
90 days after the end of each of its fiscal years, prepare
and deliver its consolidated annual financial statements,
including supplemental consolidating information
identifying Restricted Parties and persons that are not
Restricted Parties, and the annual financial statements of
the Borrower, including, without limitation, balance sheet,
statement of income and retained earnings and statement of
changes in financial position for such fiscal year, all of
which shall be audited by an internationally recognized
accounting firm.
(d) NSCL shall, concurrently with the delivery of each of its
quarterly financial statements, prepare and deliver a
Compliance Certificate.
(e) NSCL shall, as soon as practicable and in any event not
later than 120 days after the beginning of each of its
fiscal years, prepare and deliver its
- 65 -
financial forecast for its current fiscal year and the
following two fiscal years, which shall cover NSCL on a
consolidated basis and shall include, without limitation, a
projected income statement, a projected statement of
changes in funds, estimates of capital expenditures and tax
losses and deferrals.
(f) NSCL shall promptly deliver copies of all information
concerning its financial condition and Property that is
provided to the Noteholders and the holders of the
Permitted Senior Secured Indebtedness, Permitted
Subordinated Secured Indebtedness and Permitted Unsecured
Indebtedness and not otherwise provided to the Lenders,
copies of all notices received from the Noteholders and the
holders of the Permitted Senior Secured Indebtedness,
Permitted Subordinated Secured Indebtedness and Permitted
Unsecured Indebtedness, and all other information
reasonably requested by the Lenders from time to time
concerning the business, financial condition and Property
of the Restricted Parties.
If there is any change in a subsequent period from the accounting
policies, practices and calculation methods used by NSCL in preparing its
financial statements for its fiscal year ended 31 December 2001, or components
thereof, NSCL shall provide the Lenders with all information that the Lenders
require to ensure that reports provided to the Lenders after any change are
comparable to previous reports. In addition, all calculations made for the
purposes of this Agreement shall continue to be made based on the accounting
policies, practices and calculation methods that were used in preparing NSCL's
financial statements for its fiscal year ended 31 December 2001 if the changed
policies, practices and methods would materially affect the results of those
calculations.
7.3.2 REQUIREMENTS FOR NOTICE
(a) NSCL shall promptly notify the Lenders of any Event of
Default or Pending Event of Default.
(b) If an aggregate principal amount of $100,000,000 or more of
Permitted Senior Secured Indebtedness is then outstanding,
NSCL shall promptly notify the Lenders of (i) any material
default (either by a Restricted Party or by any other
party) under any Material Contract or Material Permit, (ii)
any event which, with or without the giving of notice,
lapse of time or any other condition subsequent, would be a
material default or would otherwise allow the termination
of any Material Contract or Material Permit or the
imposition of any material sanction on any party to a
Material Contract or Material Permit, (iii) the occurrence
of any "force majeure" event as described in any Material
Contract, (iv) any litigation or arbitration proceedings
concerning any Material Contract, and (v) any matters
requiring the consent of any other party to a Material
Contract, and shall from time to time provide the Lenders
with all information reasonably requested by any of the
Lenders concerning the status thereof.
- 66 -
(c) NSCL shall promptly notify the Lenders on becoming aware of
the occurrence of any litigation, dispute, arbitration,
proceeding, labour or industrial dispute or any other
circumstance affecting it, the result of which if
determined adversely would cause a Material Adverse Change,
and shall from time to time provide the Lenders with all
reasonable information requested by any of the Lenders
concerning the status thereof.
(d) NSCL shall promptly notify the Agent of (i) any release of
Hazardous Materials on or from any land which any
Restricted Party occupies or controls that is reportable
under applicable Requirements of Law and that has resulted
in any material personal injury or illness or is reasonably
expected to result in a cost of remediation of $1,000,000
or more, and (ii) any enforcement actions, special
investigations, control orders, stop orders, injunctions,
prosecutions or civil proceedings under any Environmental
Law or based on any allegation of environmental damage or
release of Hazardous Materials, and shall provide the Agent
with details, including cost, of the work required to
remove, clean up or otherwise remedy the matters referred
to in the notice.
(e) NSCL shall promptly notify the Agent if any change occurs
in the ratings used to determine the Applicable Fee Rate
and the Applicable Margin or (except as prohibited by
confidentiality agreements with relevant ratings agencies)
if it learns that any change will be made by the relevant
ratings agencies.
(f) NSCL shall promptly notify the Agent if it is within
$10,000,000 of any of the thresholds that would require it
to take action specified in Section 7.7 or item 3 of
Schedule L, and promptly provide such further reports as
the Agent may require while it remains within $10,000,000
of either threshold.
7.4 OWNERSHIP OF THE RESTRICTED PARTIES
During the term of this Agreement, there shall not be any change
in the ownership or control of the Restricted Parties other than NSCL from that
described on Schedule F, except if:
(a) the change is otherwise expressly permitted in this
Agreement and NSCL gives the Agent reasonable advance
notice of the change and immediately takes whatever steps
and delivers whatever documents (including opinions of
counsel satisfactory to the Lenders) are reasonably
required to ensure that the Security is not adversely
affected as a result;
(b) the Restricted Party was owned or controlled, as the case
may be, by another Restricted Party incorporated in Canada
and the change will result in the first Restricted Party
being owned or controlled by a Restricted Party or
Restricted Parties incorporated in Canada, and NSCL gives
the Agent reasonable advance notice of the change and
immediately takes
- 67 -
whatever steps and delivers whatever documents (including
opinions of counsel satisfactory to the Lenders) are
reasonably required to ensure that the Security is not
adversely affected as a result; or
(c) the Agent (acting reasonably, after consultation with
counsel) determines that the Lenders' ability to recover
under the Security would not be adversely affected by the
change.
7.5 NEGATIVE COVENANTS
During the term of this Agreement, the Restricted Parties shall
not do any of the things specified in this Section without the prior written
consent of the Majority Lenders, which shall not be unreasonably withheld.
7.5.1 FINANCIAL TRANSACTIONS AND ENCUMBRANCES
No Restricted Party shall:
(a) create, incur or assume or suffer to exist or cause or
permit any Encumbrance upon or in respect of any of its
Property, except for Permitted Encumbrances;
(b) do or permit anything to adversely affect the ranking or
validity of the Security except by incurring a Permitted
Encumbrance;
(c) create, incur, assume or permit any debts, liabilities or
obligations of any kind (including contingent liabilities)
to remain outstanding, other than Permitted Obligations;
(d) prepay, redeem, defease, repurchase or make other payments
in respect of any of its Debt for borrowed money, other
than:
(i) the Obligations;
(ii) scheduled interest and principal payments under the
1999 Notes, the 2001 Notes, any Permitted Senior
Secured Indebtedness and any Permitted Unsecured
Indebtedness that is not expressed to be
subordinated;
(iii) scheduled interest payments under any Permitted
Subordinated Secured Indebtedness and any Permitted
Unsecured Indebtedness that is expressed to be
subordinated, as long as no Event of Default or
Pending Event of Default has occurred and is
continuing or would result from payment being made;
(iv) the purchase money and other obligations
contemplated in Section 1.1.83(l);
(v) Debts owing by any Restricted Party to another
Restricted Party;
- 68 -
(vi) payments made with the proceeds of any issuance of
Capital Stock, any right to acquire Capital Stock or
any equity-equivalent security, to the extent not
required by this Agreement to be paid on account of
the Obligations;
(e) make loans to any other person, guarantee, endorse or
otherwise become liable for any debts, liabilities or
obligations of any other person, or give other financial
assistance of any kind to any other person, except for:
(i) the guarantees given as part of the Security or in
connection with other debentures permitted to be
issued under the Trustee Security;
(ii) loans and advances to other Restricted Parties that
are incorporated in Canada;
(iii) loans and advances to other Restricted Parties that
are not incorporated in Canada if the Agent (acting
reasonably, after consultation with counsel, but
without any requirement to seek approval of the
Majority Lenders) determines that the Lenders'
ability to recover under the Security would not be
adversely affected by the loans and advances;
(iv) loans and advances to Xxxxxx River Energy Inc. or
Xxxxxx River Energy LP;
(v) loans to persons other than Restricted Parties of
which the lender is a shareholder that would comply
with Section 7.5.2(b) if the amount of the loan was
instead used to acquire Capital Stock or other
securities of, or make investments in, the person;
(vi) guarantees of debts, liabilities and obligations of
other Restricted Parties that are Permitted
Obligations;
(vii) financial assistance not permitted by the other
items in this Section 7.5.1(e) in an aggregate
amount outstanding at any time of not greater than
$5,000,000, or $20,000,000 while no Permitted Senior
Secured Indebtedness is outstanding;
(f) (i) enter into any Derivative for speculative purposes,
(ii) enter into any Derivative except for Derivatives
secured by the Trustee Security as Other Secured
Obligations or other Derivatives of the type described in
Sections 1.1.79(a) to 1.1.79(e) inclusive that are
unsecured, or (iii) enter into any Derivative if (A) the
notional amount or the term of the proposed transaction
would adversely affect the Borrower's ability to make
principal payments required under the terms of this
Agreement or, (B) in the case of interest rate Derivatives,
the aggregate notional amount swapped by all Restricted
Parties at any time (net of offsetting transactions)
exceeds the
- 69 -
outstanding amount of the Credits, the 1999 Notes and the
2001 Notes at that time;
(g) do anything that would result in the holders of the 1999
Notes or the 2001 Notes becoming entitled to be secured;
(h) do anything that would result in the holders of any other
unsecured Debt outstanding at any time becoming entitled to
be secured unless the unsecured Debt, if secured, would
constitute Permitted Senior Secured Indebtedness or
Permitted Subordinated Secured Indebtedness.
7.5.2 BUSINESS AND PROPERTY
No Restricted Party shall:
(a) effect any material change in the nature of its business,
being the manufacture and sale of paper, pulp and
containerboard, except that the Restricted Parties
generally may discontinue their containerboard business and
any Restricted Party may discontinue any aspect of its
business that is transferred to and continued by another
Restricted Party;
(b) acquire Capital Stock or other securities of, or make
investments in, any other person, unless (i) the
acquisition or investment is in, or is incidental to, the
manufacture and/or sale of paper, pulp and/or
containerboard, (ii) the acquisition or investment is made
at a time that no Event of Default or Pending Event of
Default has occurred and is continuing or would result from
the acquisition or investment, (iii) NSCL submits PRO FORMA
financial statements and calculations of financial covenant
compliance, prepared in accordance with GAAP and reflecting
the acquisition or investment, to the Agent a reasonable
time in advance of completion of the acquisition or
investment, and (iv) Sections 3.1.3, 3.1.4, 3.1.5 and 3.1.6
are complied with in connection with the acquisition or
investment; for greater certainty, the terms "securities"
and "investment" as used in this paragraph do not include
matters referred to in Section 7.5.1(e);
(c) permit any sale, lease, sale and lease-back or other
disposition of any part of its Property (including Capital
Stock it holds) except for (i) sales of inventory and
obsolete or redundant equipment in the ordinary course of
business, (ii) dispositions to another Restricted Party,
provided that Property owned by a Restricted Party
incorporated in Canada is not transferred to a Restricted
Party not incorporated in Canada and Property located in
Canada is not transferred outside Canada, (iii)
dispositions in connection with transactions permitted by
Section 7.5.3(a), (iv) other dispositions of Property
(including Capital Stock of any other person) having a fair
market value for all Restricted Parties up to an aggregate
for all Restricted Parties during any period of 36
consecutive months of 12.5% (20% if no Permitted Senior
Secured Indebtedness is outstanding at the
- 70 -
time of the disposition) of the Consolidated Net Tangible
Assets valued immediately before any disposition;
(d) except for transactions between two or more Restricted
Parties each of which is incorporated in the same
jurisdiction, enter into any transaction of any kind with
any affiliate or associate (as those terms are defined in
the CANADA BUSINESS CORPORATIONS ACT), or person of which
it is an associate except on terms that are no more onerous
to a Restricted Party than if it were dealing with such
person on an arm's length basis.
7.5.3 CORPORATE MATTERS
No Restricted Party shall:
(a) consolidate, amalgamate or merge with any other person,
enter into any corporate reorganization or other
transaction intended to effect or otherwise permit a change
in its existing Constating Documents, liquidate, wind-up or
dissolve itself, or permit any liquidation, winding-up or
dissolution, except for transactions involving only one or
more Restricted Parties if NSCL gives the Agent reasonable
advance notice of the transactions and immediately takes
whatever steps and delivers whatever documents (including
opinions of counsel satisfactory to the Lenders) are
reasonably required to ensure that the Lenders' rights are
not adversely affected as a result;
(b) change its name without providing the Lenders with prior
written notice thereof and promptly taking other steps, if
any, as the Lenders reasonably request to permit the
Trustee and/or Agent to perfect the Security with respect
to the change in name;
(c) change the location of its Property (except for goods in
transit) or the location of its chief executive office from
the respective jurisdictions specified on Schedule F
without providing the Agent with prior written notice
thereof and promptly taking other steps, if any, as the
Lenders reasonably request to permit the Trustee and/or
Agent to perfect the Security with respect to the change in
location;
(d) allow inventory to be located in any jurisdiction where the
Trustee Security over inventory has not been registered in
accordance with local requirements unless (i) the amount of
all such inventory for all Restricted Parties in each such
jurisdiction is less than 50,000 tonnes and (ii) the net
book value of all such inventory for all Restricted Parties
in all such jurisdictions, measured on 30 June of each year
with an adjustment for any unusual movements of inventory
on or before that date, is less than 30% of then-existing
consolidated net book value of NSCL's inventory;
(e) allow Property other than inventory to be located in any
jurisdiction where the Trustee Security over that Property
has not been registered in
- 71 -
accordance with local requirements unless the net book
value of all such Property for all Restricted Parties in
all such jurisdictions is less than 4% of then-existing
consolidated net book value of NSCL's fixed assets; for
greater certainty, accounts receivable of a Restricted
Party shall be considered for the purpose of this item to
be located where the chief executive office of the
Restricted Party is located;
(f) in the case of NSCL and the Borrower, change its fiscal
year end, being 31 December;
(g) change its auditors, unless an internationally recognized
accounting firm is appointed;
(h) be a party to any amendment or waiver of the terms of any
Permitted Senior Secured Indebtedness, Permitted
Subordinated Secured Indebtedness or Permitted Unsecured
Indebtedness unless expressly permitted by any applicable
Intercreditor Agreement;
(i) be a party to any amendment or waiver to the terms of the
1999 Notes or 2001 Notes or any documents relating to any
of them if the amendment would adversely affect the rights
of any Lender or make the terms thereof more onerous to any
Restricted Party (including but not limited to any
amendment that would shorten the maturity, require any
additional prepayment, increase the interest rate or other
compensation payable to Noteholders, impose additional
requirements for securing the Noteholders or further limit
the rights of the Restricted Parties to incur Debt or grant
Encumbrances), or be a party to any amendment of any kind
without immediately providing the Agent with copies of all
documents and other information relating to the amendment.
7.6 USE OF INSURANCE PROCEEDS
7.6.1 Unless otherwise specified in this Section 7.6, all proceeds of
insurance required to be maintained by the Restricted Parties under the terms of
this Agreement shall be paid to the Trustee.
7.6.2 Proceeds of liability insurance shall be paid to the person to
whom the affected Restricted Party is liable. Proceeds of insurance covering
loss of or damage to property in an amount of less than $25,000,000 per claim,
or in any amount if no Permitted Senior Secured Indebtedness is outstanding, may
be paid by the insurer directly to the affected Restricted Party unless, if an
Event of Default or Pending Event of Default has occurred and is continuing, the
Agent requires that payment be made to the Trustee.
7.6.3 Subject to the rights of any holder of a Permitted Encumbrance
that has priority over the Security, proceeds of insurance covering loss of or
damage to property not covered by Section 7.6.2 shall be paid to the Trustee and
the Agent shall direct the Trustee to disburse the proceeds to the affected
Restricted Party on conditions customary for construction or equipment
financing, to fund the repair or replacement of the property in
- 72 -
respect of which the insurance proceeds are payable, or to acquire revenue
producing Property within the core business of the Restricted Parties, provided
that:
(a) no Event of Default (including but not limited to one
relating to Material Adverse Change) or Pending Event of
Default has occurred and is continuing;
(b) the Majority Lenders are satisfied, acting reasonably,
that, if repair or replacement is contemplated, the
proceeds of such insurance together with other resources
available to the affected Restricted Party (the use of
which would not contravene this Agreement) are sufficient
to fully repair or replace the property in respect of which
the insurance proceeds are payable within the remaining
term of the then-outstanding Credits or within 365 days,
whichever is less.
7.6.4 The proceeds of business interruption insurance shall be used to
repay the Credits, without prejudice to the Borrower's rights to further
Advances under the Credits. If the Credits are repaid in full at any time, the
proceeds may be used to carry on the business of the Restricted Parties as long
as the Majority Lenders are satisfied, acting reasonably, that adequate
provision has been made for payment of the Obligations and any other obligations
secured by the Security (payment of which is permitted in accordance with this
Agreement).
7.7 ADJUSTMENTS TO AMOUNT OF DEBT
7.7.1 If the aggregate of the Market Values of all Derivatives that are
Other Secured Obligations (whether in respect of interest rates, currencies,
commodities or other matters permitted by this Agreement) is at any time
negative from the Restricted Parties' perspective (that is, the Restricted
Parties on an aggregate basis are "out of the money") to the extent of
$150,000,000 or more, the Restricted Parties shall, within five Business Days of
receiving notice from the Agent, terminate or re-price one or more Derivatives
or take other action acceptable to the Agent acting reasonably so that the
Market Value of those Derivatives is immediately reduced to a negative Market
Value of not more than $135,000,000.
7.7.2 If the aggregate of:
(a) the outstanding principal amount of the Credits;
(b) the outstanding principal amount of any Permitted Senior
Secured Indebtedness and Permitted Subordinated Secured
Indebtedness;
(c) the absolute value of the Market Value, if negative, of the
Existing Special Derivatives;
(d) the absolute value of the Market Value, if negative, of all
Derivatives not mentioned in item (c) that are Other
Secured Obligations and have been classified as being
incurred under clauses (i) or (ix) of the definition of
- 73 -
"Permitted Indebtedness" in the 1999 Indenture and the
definition of "Permitted Debt" in the 2001 Indenture;
(e) the amount, as determined under the 1999 Indenture and the
2001 Indenture, respectively, of any other obligations that
have been classified as being incurred under clauses (i) or
(ix) of the definition of "Permitted Indebtedness" in the
0000 Xxxxxxxxx and the definition of "Permitted Debt" in
the 2001 Indenture
exceeds an amount equal to the Threshold Amount less $20,000,000, the Restricted
Parties shall within five Business Days of receiving notice from the Agent repay
Advances, repay Permitted Senior Secured Indebtedness, repay Permitted
Subordinated Secured Indebtedness, terminate or re-price one or more Derivatives
and/or take other action acceptable to the Agent acting reasonably so that the
aggregate of those amounts is reduced to not greater than an amount equal to the
Threshold Amount less $35,000,000.
7.7.3 The definition of Market Value in this Agreement shall not,
however, be binding on the Restricted Parties or any other person for the
purpose of determining the price or other basis on which any such action is
taken.
ARTICLE VIII
DEFAULT
8.1 EVENTS OF DEFAULT
Each of the following events shall constitute an Event of Default
under this Agreement:
(a) the Borrower fails to pay any amount of principal,
interest, fees or other Obligations (including any amount
relating to a Bankers' Acceptance or an L/C) within five
Business Days of when due; or
(b) a Restricted Party makes any representation or warranty
under any of the Credit Documents which is incorrect or
incomplete in any material respect when made or deemed to
be made, it being agreed that an incorrect representation
that there is no Pending Event of Default shall not result
in the Restricted Parties being disentitled to any cure
period otherwise associated with the Pending Event of
Default; or
(c) a Restricted Party ceases or threatens to cease to carry on
its business, except as expressly permitted in this
Agreement, or admits its inability or fails to pay its
debts generally; or
(d) a Restricted Party permits any default under one or more
agreements or instruments relating to its Debt other than
the Obligations (including but not limited to the Debt
under the 1999 Notes, 2001 Notes, Permitted Senior Secured
Indebtedness, Permitted Subordinated Secured Indebtedness
and Permitted Unsecured Indebtedness to the extent they are
- 74 -
outstanding) or permits any other event to occur and to
continue without being waived or cured after any applicable
grace period specified in such agreements or instruments,
if the effect of one or more of such events is to
accelerate, or to permit (in accordance with any applicable
inter-creditor and subordination arrangements) the
acceleration of, the date on which Debt in an aggregate
amount of $25,000,000 or more becomes due (whether or not
acceleration actually occurs), or if any such Debt in an
aggregate amount of $25,000,000 or more is not paid when
due, taking into account any applicable grace periods; or
(e) a Restricted Party becomes a bankrupt (voluntarily or
involuntarily); or becomes subject to any proceeding
seeking liquidation, arrangement, relief of creditors or
the appointment of a receiver or trustee over, or any
judgment or order which has or might have a material and
adverse effect on, any material part of its Property, and
such proceeding, if instituted against the Restricted
Party, or such judgment or order, is not contested
diligently, in good faith and on a timely basis and
dismissed or stayed within 30 days of its commencement or
issuance; or
(f) a Restricted Party denies, to any material extent, its
obligations under the Credit Documents or claims any of the
Credit Documents to be invalid, withdrawn or terminated in
whole or in part; or any of the Credit Documents is
invalidated in any material respect by any act, regulation
or governmental action or is determined to be invalid in
any material respect by a court or other judicial entity
and such determination has not been stayed pending appeal;
or
(g) one or more final judgments, writs of execution,
garnishments or attachments or similar processes
representing claims in an aggregate of $25,000,000 or more
for all Restricted Parties at any time are issued or levied
against any of their Property and are not released, bonded,
satisfied, discharged, vacated, stayed or accepted for
payment by an insurer within 30 days after their entry,
commencement or levy, unless such process is contested
diligently, in good faith and on a timely basis and the
applicable Restricted Party has made sufficient cash offset
or other arrangements satisfactory to the Lenders with
respect thereto; or
(h) an Encumbrancer takes possession of all or a substantial
portion of the Property of a Restricted Party by
appointment of a receiver, receiver and manager, or
otherwise; or
(i) one or more transactions, events or conditions occur or
exist which, when taken together, have a material adverse
effect on the Agent's or the Lenders' ability to enforce
their rights or remedies under any of the Credit Documents,
or the financial condition, business or prospects of NSCL
and its Subsidiaries, taken as a whole, in each case as
determined by the
- 75 -
Majority Lenders, acting in good faith and on commercially
reasonable grounds; or
(j) there is a breach of Section 7.1 and NSCL does not, within
30 days after it first identifies the breach, receive
proceeds of an equity investment in a form and an amount
sufficient to satisfy the Agent that the breach would not
have occurred had the equity investment been made at the
beginning of the relevant period for measurement of the
provision of Section 7.1 that has been breached; or
(k) there is a breach of Section 7.7 or the Restricted Parties
do not comply with the requirements of Schedule L or any
arrangements that may be entered into as contemplated in
Schedule L; or
(l) there is a breach of any other provision of any of the
Credit Documents and such breach is not corrected or
otherwise satisfied within 30 days after the Agent, for and
on behalf of the Lenders, gives written notice thereof; or
(m) there is a Change of Control Default or another change
in the ownership or control of a Restricted Party which is
not permitted by this Agreement; or
(n) at a time when Permitted Senior Secured Indebtedness in an
aggregate principal amount of $100,000,000 or more is
outstanding, any Material Permit expires or is withdrawn,
cancelled, terminated, or modified so as to cause a
Material Adverse Change, and is not reinstated or replaced
within 30 days thereafter so as to reverse the Material
Adverse Change; or
(o) at a time when Permitted Senior Secured Indebtedness in an
aggregate principal amount of $100,000,000 or more is
outstanding, a default under any Material Contract by a
Restricted Party or any other party to a Material Contract
occurs, or any other event occurs under any Material
Contract, and continues without being waived after any
applicable grace period specified in the Material Contract,
if the effect of the default or other event (if not waived)
is to terminate the Material Contract or if the default or
other event results in a declaration of non-performance
being issued or similar step being taken with respect to a
Restricted Party, and the termination, declaration or
similar step, if it arose from a breach by or other event
relating to a Restricted Party, would cause a Material
Adverse Change or, if it relates to a Special Material
Contract and arose from a breach by or other event relating
to a Person other than a Restricted Party, would cause an
Event of Default under clause (i) above or would have a
material adverse effect on the ability of the Restricted
Parties as a whole to perform and discharge their
obligations under this Agreement or the Material Contracts
taken as a whole, in each case unless a Replacement
Contract is entered into in respect of the Material
Contract in question.
- 76 -
8.2 ACCELERATION AND TERMINATION OF RIGHTS
If any Event of Default occurs, no Lender shall be under any
further obligation to make Advances and the Majority Lenders may instruct the
Agent to give notice to the Borrower (i) declaring the Lenders' obligations to
make Advances to be terminated, whereupon the same shall forthwith terminate,
(ii) declaring the Obligations or any of them to be forthwith due and payable,
whereupon they shall become and be forthwith due and payable without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower, and/or (iii) demanding that the
Borrower deposit forthwith with the Agent for the Lenders' benefit Collateral
equal to the full principal amount at maturity of all L/Cs and Bankers'
Acceptances then outstanding for its account.
Notwithstanding the preceding paragraph, if a Restricted Party
becomes a bankrupt (voluntarily or involuntarily), or institutes any proceeding
seeking liquidation, rearrangement, relief of debtors or creditor or the
appointment of a receiver or trustee over any material part of its Property,
then without prejudice to the other rights of the Lenders as a result of any
such event, without any notice or action of any kind by the Agent or the
Lenders, and without presentment, demand or protest, the Lenders' obligation to
make Advances shall immediately terminate, the Obligations shall immediately
become due and payable and the Borrower shall be obligated to deposit forthwith
with the Agent for the Lenders' benefit Collateral equal to the full principal
amount at maturity of all L/Cs and Bankers' Acceptances then outstanding for its
account.
8.3 PAYMENT OF L/CS
Immediately upon any Obligations becoming due and payable under
Section 8.2, the Borrower shall, without necessity of further act or evidence,
be and become thereby unconditionally obligated to deposit forthwith with the
Agent for the Lenders' benefit Collateral equal to the full principal amount at
maturity of all L/Cs and Bankers' Acceptances then outstanding for its account
and the Borrower hereby unconditionally promises and agrees to deposit with the
Agent immediately upon such demand Collateral in the amount so demanded. The
Borrower authorizes the Lenders, or any of them, to debit its accounts with the
amount required to pay such L/Cs and to pay such Bankers' Acceptances,
notwithstanding that such Bankers' Acceptances may be held by the Lenders, or
any of them, in their own right at maturity. Amounts paid to the Agent pursuant
to such a demand in respect of Bankers' Acceptances and L/Cs shall be applied
against, and shall reduce, PRO RATA among the Lenders, to the extent of the
amounts paid to the Agent in respect of Bankers' Acceptances and L/Cs,
respectively, the obligations of the Borrower to pay amounts then or thereafter
payable under Bankers' Acceptances and L/Cs, respectively, at the times amounts
become payable thereunder.
The Borrower shall be entitled to receive interest on cash held as
Collateral in accordance with Section 11.16.
8.4 REMEDIES
Upon the occurrence of any event by which any of the Obligations
become due and payable under Section 8.2, the Security shall become immediately
enforceable and the
- 77 -
Majority Lenders may instruct the Agent to take such action or proceedings on
behalf of the Lenders and in compliance with applicable Requirements of Law as
the Majority Lenders in their sole discretion deem expedient to enforce the
same, all without any additional notice, presentment, demand, protest or other
formality, all of which are hereby expressly waived by the Restricted Parties.
8.5 SAVING
The Lenders shall not be under any obligation to the Restricted
Parties or any other person to realize any collateral or enforce the Security or
any part thereof or to allow any of the collateral to be sold, dealt with or
otherwise disposed of. The Lenders shall not be responsible or liable to the
Restricted Parties or any other person for any loss or damage upon the
realization or enforcement of, the failure to realize or enforce the collateral
or any part thereof or the failure to allow any of the collateral to be sold,
dealt with or otherwise disposed of or for any act or omission on their
respective parts or on the part of any director, officer, agent, servant or
adviser in connection with any of the foregoing, except that a Lender may be
responsible or liable for any loss or damage arising from the wilful misconduct
or gross negligence of that Lender.
8.6 PERFORM OBLIGATIONS
If an Event of Default has occurred and is continuing and if any
Restricted Party has failed to perform any of its covenants or agreements in the
Credit Documents, the Majority Lenders, may, but shall be under no obligation
to, instruct the Agent on behalf of the Lenders to perform any such covenants or
agreements in any manner deemed fit by the Majority Lenders without thereby
waiving any rights to enforce the Credit Documents. The reasonable expenses
(including any legal costs) paid by the Agent and/or the Lenders in respect of
the foregoing shall be secured by the Security.
8.7 THIRD PARTIES
No person dealing with the Lenders or any agent of the Lenders
shall be concerned to inquire whether the Security has become enforceable, or
whether the powers which the Lenders are purporting to exercise have become
exercisable, or whether any Obligations remain outstanding upon the security
thereof, or as to the necessity or expediency of the stipulations and conditions
subject to which any sale shall be made, or otherwise as to the propriety or
regularity of any sale or other disposition or any other dealing with the
collateral charged by such Security or any part thereof.
8.8 POWER OF ATTORNEY
Effective upon occurrence and during the continuance of an Event
of Default, each Restricted Party hereby irrevocably constitutes and appoints
any Vice-President, Managing Director or more senior officer of the Agent its
due and lawful attorney with full power of substitution in its name and on its
behalf, during the continuance of an Event of Default, to enforce any right,
title or interest of the Lenders in, to or under the Security or any part
thereof or any obligation to that Restricted Party or remedy available to that
- 78 -
Restricted Party. This appointment is irrevocable to the maximum extent
permitted by applicable law.
8.9 REMEDIES CUMULATIVE
The rights and remedies of the Lenders under the Credit Documents
are cumulative and are in addition to and not in substitution for any rights or
remedies provided by law. Any single or partial exercise by the Lenders of any
right or remedy for a default or breach of any term, covenant, condition or
agreement herein contained shall not be deemed to be a waiver of or to alter,
affect, or prejudice any other right or remedy or other rights or remedies to
which the Lenders may be lawfully entitled for the same default or breach. Any
waiver by the Lenders of the strict observance, performance or compliance with
any term, covenant, condition or agreement herein contained, and any indulgence
granted by the Lenders shall be deemed not to be a waiver of any subsequent
default.
8.10 SET-OFF OR COMPENSATION
In addition to and not in limitation of any rights now or
hereafter granted under applicable law, if the Obligations become due and
payable pursuant to Section 8.2, the Lenders, or any of them, may at any time
and from time to time without notice to the Restricted Parties or any other
person, any notice being expressly waived by the Restricted Parties, set-off and
compensate and apply any and all deposits, general or special, time or demand,
provisional or final, matured or unmatured, the Market Value of Derivatives that
is positive from any Restricted Party's perspective, and any other indebtedness
at any time owing by the Lenders, or any of them, to or for the credit of or the
account of any Restricted Party against and on account of the Obligations
notwithstanding that any of them are contingent or unmatured.
ARTICLE IX
THE AGENT AND THE LENDERS
9.1 AUTHORIZATION OF AGENT AND RELATIONSHIP
Each Lender hereby appoints TD as Agent and TD hereby accepts such
appointment. The appointment may only be terminated as expressly provided in
this Agreement. Each Lender hereby authorizes the Agent to take all action on
its behalf and to exercise such powers and perform such duties under this
Agreement as are expressly delegated to the Agent by its terms, together with
all powers reasonably incidental thereto. The Agent shall have only those duties
and responsibilities which are of a solely mechanical and administrative nature
and which are expressly specified in this Agreement, and it may perform such
duties by or through its agents or employees, but shall not by reason of this
Agreement have a fiduciary duty in respect of any Lender. As to any matters not
expressly provided for by this Agreement, the Agent is not required to exercise
any discretion or to take any action, but is required to act or to refrain from
acting (and is fully protected in so acting or refraining from acting) upon the
instructions of the Lenders or the Majority Lenders, as the case may be. Those
instructions shall be binding upon all Lenders, but the Agent is not required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law.
- 79 -
Without limiting the foregoing, each of the Lenders hereby grants
to the Agent a power of attorney, for the purposes of laws applicable to the
Security from time to time, to sign documents comprising the Security from time
to time (as the party accepting the grant of the security), and also grants to
the Agent the right to delegate its authority as attorney to any other person,
whether or not an officer or employee of the Agent. Each of the Lenders also
hereby grants to the Agent, while it is acting as collateral agent or trustee in
connection with the Security, a power of attorney, for the purposes of Article
2692 of the Civil Code of Quebec and for the purposes of other laws applicable
to the Security from time to time, to sign documents comprising the Security
from time to time (as the party accepting the grant of the security), and also
grants to the Agent in that capacity the right to delegate its authority as
attorney to any other person, whether or not an officer or employee of the
Agent.
Without limiting the foregoing, the Agent may perform its duties
through one or more of its offices, may designate different offices for the
performance of different duties from time to time and may delegate its duties to
one or more of its affiliates from time to time. The provisions of this
Agreement regarding the Agent shall apply MUTATIS MUTANDIS to the affiliates of
the Agent to whom duties may be delegated from time to time.
Neither the Arrangers nor the Syndication Agents have any
responsibility to the Borrower or the Lenders in that capacity.
9.2 DISCLAIMER OF AGENT
The Agent makes no representation or warranty, and assumes no
responsibility with respect to the due execution, legality, validity,
sufficiency, enforceability or collectability of this Agreement or any other
Credit Document. The Agent assumes no responsibility for the financial condition
of the Restricted Parties, or for the performance of the obligations of the
Restricted Parties under this Agreement or any other Credit Document. The Agent
assumes no responsibility with respect to the accuracy, authenticity, legality,
validity, sufficiency or enforceability of any documents, papers, materials or
other information furnished by the Restricted Parties to the Agent on behalf of
the Lenders. The Agent shall not be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or as to the use of the proceeds of the Credits
or (unless the officers or employees of the Lender acting as Agent active in
their capacity as officers or employees on the Restricted Parties' accounts have
actual knowledge thereof, or have been notified thereof in writing by a
Restricted Party or a Lender) of the existence or possible existence of any
Event of Default or Pending Event of Default. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them as Agent under or in connection with the
Agreement except for its or their own gross negligence or wilful misconduct.
With respect to its Commitment, the Lender acting as Agent shall have the same
rights and powers hereunder as any other Lender, and may exercise the same as
though it were not performing the duties and functions delegated to it as Agent
hereunder.
- 80 -
9.3 FAILURE OF LENDER TO FUND
9.3.1 Unless the Agent has actual knowledge that a Lender has not made
or will not make available to the Agent for value on a Drawdown Date the
applicable amount required from such Lender pursuant to Sections 5.11 or 5.15,
the Agent shall be entitled to assume that such amount has been or will be
received from such Lender when so due and the Agent may (but shall not be
obliged to), in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not in fact received by the Agent from
such Lender on such Drawdown Date and the Agent has made available a
corresponding amount to the Borrower on such Drawdown Date as aforesaid, such
Lender shall pay to the Agent on demand an amount equal to the product of (i)
the Interbank Reference Rate per annum multiplied by (ii) the amount that should
have been paid to the Agent by such Lender on such Drawdown Date and was not,
multiplied by (iii) a fraction, the numerator of which is the number of days
that have elapsed from and including such Drawdown Date to but excluding the
date on which the amount is received by the Agent from such Lender and the
denominator of which is 365. A certificate of the Agent containing details of
the amount owing by a Lender under this Section shall be binding and conclusive
in the absence of manifest error. If any such amount is not in fact received by
the Agent from such Lender on such Drawdown Date, the Agent shall be entitled to
recover from the Borrower, on demand, the related amount made available by the
Agent to the Borrower as aforesaid together with interest thereon at the
applicable rate per annum payable by the Borrower hereunder.
9.3.2 Notwithstanding the provisions of Section 9.3.1, if any Lender
fails to make available to the Agent its Proportionate Share of any Advance
(such Lender being herein called the "DEFAULTING LENDER"), the Agent shall
forthwith give notice of such failure by the Defaulting Lender to the Borrower
and the other Lenders. The Agent shall then forthwith give notice to the other
Lenders that any Lender may make available to the Agent all or any portion of
the Defaulting Lender's Proportionate Share of such Advance (but in no way shall
any other Lender or the Agent be obliged to do so) in the place of the
Defaulting Lender. If more than one Lender gives notice that it is prepared to
make funds available in the place of a Defaulting Lender in such circumstances
and the aggregate of the funds which such Lenders (herein collectively called
the "CONTRIBUTING LENDERS" and individually called the "CONTRIBUTING LENDER")
are prepared to make available exceeds the amount of the Advance which the
Defaulting Lender failed to make, then each Contributing Lender shall be deemed
to have given notice that it is prepared to make available its Proportionate
Share of such Advance based on the Contributing Lenders' relative commitments to
advance in such circumstances. If any Contributing Lender makes funds available
in the place of a Defaulting Lender in such circumstances, then the Defaulting
Lender shall pay to any Contributing Lender making the funds available in its
place, forthwith on demand, any amount advanced on its behalf together with
interest thereon at the rate applicable to such Advance from the date of advance
to the date of payment, against payment by the Contributing Lender making the
funds available of all interest received in respect of the Advance from the
Borrower. The failure of any Lender to make available to the Agent its
Proportionate Share of any Advance as required herein shall not relieve any
other Lender of its obligations to make available to the Agent its Proportionate
Share of any Advance as required herein.
- 81 -
9.4 PAYMENTS BY THE BORROWER
All payments made by or on behalf of the Borrower pursuant to this
Agreement shall be made to and received by the Agent and shall be distributed by
the Agent to the Lenders as soon as possible upon receipt by the Agent. Except
as required to make payments in respect of the Other Secured Obligations or as
otherwise provided in this Agreement (including but not limited to Section 9.5),
the Agent shall distribute:
(a) payments of interest in accordance with each Lender's
Proportionate Share of the relevant Credit;
(b) repayments of principal in accordance with each Lender's
Proportionate Share of the relevant Credit; or
(c) all other payments received by the Agent including, without
limitation, amounts received upon the realization of
Security, in accordance with each Lender's Proportionate
Share of the relevant Credit provided, however, that with
respect to proceeds of realization, no Lender shall receive
an amount in excess of the amounts owing to it in respect
of the Obligations.
If the Agent does not distribute a Lender's share of a payment
made by the Borrower to that Lender for value on the day that payment is made or
deemed to have been made to the Agent, the Agent shall pay to the Lender on
demand an amount equal to the product of (i) the Interbank Reference Rate per
annum multiplied by (ii) the Lender's share of the amount received by the Agent
from the Borrower and not so distributed, multiplied by (iii) a fraction, the
numerator of which is the number of days that have elapsed from and including
the date of receipt of the payment by the Agent to but excluding the date on
which the payment is made by the Agent to such Lender and the denominator of
which is 365.
9.5 PAYMENTS BY AGENT
9.5.1 For greater certainty, the following provisions shall apply to any
and all payments made by the Agent to the Lenders hereunder:
(a) the Agent shall be under no obligation to make any payment
(whether in respect of principal, interest, fees or
otherwise) to any Lender until an amount in respect of such
payment has been received by the Agent from the Borrower;
(b) if the Agent receives less than the full amount of any
payment of principal, interest, fees or other amount owing
by the Borrower under this Agreement, the Agent shall have
no obligation to remit to each Lender any amount other than
such Lender's Proportionate Share of that amount which is
the amount actually received by the Agent;
(c) if any Lender advances more or less than its Proportionate
Share of a Credit, such Lender's entitlement to such
payment shall be increased or
- 82 -
reduced, as the case may be, in proportion to the amount
actually advanced by such Lender;
(d) if a Lender's Proportionate Share of an Advance has been
advanced, or a Lender's Commitment has been outstanding,
for less than the full period to which any payment (other
than a payment of principal) by the Borrower relates, such
Lender's entitlement to such payment shall be reduced in
proportion to the length of time such Lender's
Proportionate Share of the relevant Credit or such Lender's
Commitment, as the case may be, has actually been
outstanding;
(e) the Agent acting reasonably and in good faith shall, after
consultation with the Lenders in the case of any dispute,
determine in all cases the amount of all payments to which
each Lender is entitled and such determination shall, in
the absence of manifest error, be binding and conclusive;
and
(f) upon request, the Agent shall deliver a statement detailing
any of the payments to the Lenders referred to herein.
9.5.2 Unless the Agent has actual knowledge that the Borrower has not
made or will not make a payment to the Agent for value on the date in respect of
which the Borrower has notified the Agent that the payment will be made, the
Agent shall be entitled to assume that such payment has been or will be received
from the Borrower when due and the Agent may (but shall not be obliged to), in
reliance upon such assumption, pay the Lenders corresponding amounts. If the
payment by such Borrower is in fact not received by the Agent on the required
date and the Agent has made available corresponding amounts to the Lenders, the
Borrower shall, without limiting its other obligations under this Agreement,
indemnify the Agent against any and all liabilities, obligations, losses,
damages, penalties, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on or incurred by the Agent as a result, except
for those arising from the Agent's gross negligence or wilful misconduct. A
certificate of the Agent with respect to any amount owing by the Borrower under
this Section shall be conclusive evidence of the amount owing in the absence of
manifest error. If the payment is not received by the Agent from the Borrower
within a reasonable time following the disbursement to the Lenders by the Agent,
the Lenders shall return the amounts received by them to the Agent with interest
at the Interbank Reference Rate.
9.6 DIRECT PAYMENTS
The Lenders agree among themselves that, except as otherwise
provided for in this Agreement (including but not limited to Sections 11.14 and
11.15), except as necessary to adjust for Advances that are not in each Lender's
Proportionate Share under the Credits, and except for receipts relating to the
Other Secured Obligations, all sums received by a Lender relating to this
Agreement or by virtue of the Security, whether received by voluntary payment,
by the exercise of the right of set-off or compensation or by counterclaim,
cross-action or as proceeds of realization of any Security or otherwise, shall
be shared by each Lender in its Proportionate Share under the Credits and each
Lender
- 83 -
undertakes to do all such things as may be reasonably required to give full
effect to this Section, including without limitation, the purchase from other
Lenders of such notes or a portion thereof by the Lender who has received an
amount in excess of its Proportionate Share under the Credits as shall be
necessary to cause such purchasing Lender to share the excess amount rateably in
its Proportionate Share under the Credits with the other Lenders. If any sum
which is so shared is later recovered from the Lenders who originally received
it, the Lender shall restore its Proportionate Share under the Credits of such
sum to such Lenders, without interest. If any Lender shall obtain any payment of
moneys due under this Agreement as referred to above, it shall forthwith remit
such payment to the Agent and, upon receipt, the Agent shall distribute such
payment in accordance with the provisions of Section 9.5.
9.7 ADMINISTRATION OF THE CREDITS
9.7.1 Unless otherwise specified herein, the Agent shall perform the
following duties under this Agreement:
(a) prior to an Advance, ensure that all conditions precedent
have been fulfilled in accordance with the terms of this
Agreement, subject to Section 9.8.2 and any other
applicable terms of this Agreement;
(b) take delivery of each Lender's Proportionate Share of an
Advance and make all Advances hereunder in accordance with
the procedures set forth in Sections 5.11 and 5.15;
(c) use reasonable efforts to collect promptly all sums due and
payable by the Borrower pursuant to this Agreement;
(d) make all payments to the Lenders in accordance with the
provisions hereof;
(e) hold the Security other than the Trustee Security on behalf
of the Lenders and take all necessary steps to comply with
registration requirements so that the Security remains
perfected under applicable laws, but each Lender shall
notify the Agent of any circumstance that might affect the
perfection of the Security of which the Lender becomes
aware;
(f) hold all legal documents relating to the Credits, maintain
complete and accurate records showing all Advances made by
the Lenders, all remittances and payments made by the
Borrower to the Agent, all remittances and payments made by
the Agent to the Lenders and all fees or any other sums
received by the Agent and, except for accounts, records and
documents relating to the fees payable under the Fee
Agreement, allow each Lender and their respective advisors
to examine such accounts, records and documents at their
own expense, and provide any Lender, upon reasonable
notice, with such copies thereof as such Lender may
reasonably require from time to time at the Lender's
expense;
- 84 -
(g) except as otherwise specifically provided for in this
Agreement, promptly advise each Lender upon receipt of each
notice and deliver to each Lender, promptly upon receipt,
all other written communications furnished by the
Restricted Parties to the Agent on behalf of the Lenders
pursuant to this Agreement, including without limitation
copies of financial reports and certificates which are to
be furnished to the Agent;
(h) forward to each of the Lenders, upon request and at the
expense of the Lender so requesting (other than customary
record books which shall be provided at the expense of the
Borrower), copies of this Agreement, the Security and other
Credit Documents (other than the Fee Agreement);
(i) promptly forward to each Lender, upon request, an
up-to-date loan status report; and
(j) upon learning of same, promptly advise each Lender in
writing of the occurrence of an Event of Default or Pending
Event of Default or the occurrence of any event, condition
or circumstance which would cause a Material Adverse Change
or of any material adverse information coming to the
attention of the Agent (using reasonable efforts) relative
to the Security, provided that, except as aforesaid, the
Agent shall be under no duty or obligation whatsoever to
provide any notice to the Lenders and further provided that
each Lender hereby agrees to notify the Agent of any Event
of Default or Pending Event of Default of which it may
reasonably become aware.
9.7.2 The Agent may take the following actions only with the prior
consent of the Majority Lenders, unless otherwise specified in this Agreement:
(a) subject to Section 9.7.3, exercise any and all rights of
approval conferred upon the Lenders by this Agreement;
(b) give written notice to the Restricted Parties in respect of
any matter in respect of which notice may be required,
permitted, necessary or desirable in accordance with or
pursuant to this Agreement, promptly after receiving the
consent of the Majority Lenders, except that the Agent
shall, without direction from the Lenders, immediately give
the Borrower notice of any payment that is due or overdue
under the terms of this Agreement unless the Agent
considers that it should request the direction of the
Majority Lenders, in which case the Agent shall promptly
request that direction;
(c) amend, modify or waive any of the terms of this Agreement,
including waiver of an Event of Default or Pending Event of
Default, if such action is not otherwise provided for in
Section 9.7.3;
(d) declare an Event of Default or take action to enforce
performance of the Obligations and to realize upon the
Security including the appointment of a receiver, the
exercise of powers of distress, lease or sale given by the
- 85 -
Security or by law and take foreclosure proceedings and/or
pursue any other legal remedy necessary;
(e) decide to accelerate the amounts outstanding under the
Credits;
(f) pay insurance premiums, taxes and any other sums as may be
reasonably required to protect the interests of the
Lenders; and
(g) enter into or amend, modify or waive any term of any
Intercreditor Agreement.
9.7.3 The Agent may take the following actions only if the prior
unanimous consent of the Lenders is obtained, unless otherwise specified herein:
(a) amend, modify, discharge, terminate or waive any of the
terms of the Security;
(b) amend, modify, discharge, terminate or waive any of the
terms of this Agreement if such amendment, modification,
discharge, termination or waiver would increase the amount
of any Credit, amend the purpose of any Credit, reduce the
interest rates and similar charges applicable to any
Credit, reduce the fees payable with respect to any Credit,
extend any date fixed for payment of principal, interest or
any other amount relating to any Credit or extend the term
of any Credit (for greater certainty, any extension of the
Credits shall be made in accordance with Section 2.4); and
(c) amend the definition of "Majority Lenders" or this Section
9.7.3.
For greater certainty, no Lender's Commitment or Proportionate
Share may be amended without the consent of that Lender.
9.7.4 Notwithstanding Sections 9.7.2 and 9.7.3, the Agent may, without
the consent of the Lenders, make amendments to the Credit Documents that are for
the sole purpose of curing any immaterial or administrative ambiguity, defect or
inconsistency, but shall immediately notify the Lenders of any such action. The
Agent may also consent from time to time to any change to the list of Material
Contracts provided by NSCL in accordance with Section 3.1.8 and may discharge
any Security (or direct the Trustee to do so) to the extent necessary to allow
any Restricted Party to complete any sale or other disposition of Property
permitted by this Agreement.
9.7.5 As between the Restricted Parties, on the one hand, and the Agent
and the Lenders, on the other hand:
(a) all statements, certificates, consents and other documents
which the Agent purports to deliver on behalf of the
Lenders or the Majority Lenders shall be binding on each of
the Lenders, and the Restricted Parties shall not be
- 86 -
required to ascertain or confirm the authority of the Agent
in delivering such documents;
(b) all certificates, statements, notices and other documents
which are delivered by the Restricted Parties to the Agent
in accordance with this Agreement shall be deemed to have
been duly delivered to each of the Lenders;
(c) all payments which are delivered by the Borrower to the
Agent in accordance with this Agreement shall be deemed to
have been duly delivered to each of the Lenders;
(d) unless an Event of Default or Pending Event of Default has
occurred and is continuing, NSCL's consent to the
appointment of any Successor Agent must be obtained, but
NSCL's consent shall not be unreasonably withheld.
9.8 RIGHTS OF AGENT
9.8.1 In administering the Credits, the Agent may retain, at the expense
of the Lenders if such expenses are not recoverable from the Borrower, such
solicitors, counsel, auditors and other experts and agents as the Agent may
select, in its sole discretion, acting reasonably and in good faith after
consultation with the Lenders.
9.8.2 The Agent shall be entitled to rely on any communication,
instrument or document believed by it to be genuine and correct and to have been
signed by the proper individual or individuals, and shall be entitled to rely
and shall be protected in relying as to legal matters upon opinions of
independent legal advisors selected by it. The Agent may also assume that any
representation made by a Restricted Party is true and that no Event of Default
or Pending Event of Default has occurred unless the officers or employees of the
Lender acting as Agent, active in their capacity as officers or employees
responsible for the Restricted Parties' account have actual knowledge to the
contrary or have received notice to the contrary from any other party to this
Agreement.
9.8.3 The Agent may, without any liability to account, accept deposits
from and lend money to and generally engage in any kind of banking, or other
business with the Restricted Parties, as if it were not the Agent.
9.8.4 Except in its own right as a Lender, the Agent shall not be
required to advance its own funds for any purpose, and in particular, shall not
be required to pay with its own funds insurance premiums, taxes or public
utility charges or the cost of repairs or maintenance with respect to the assets
which are the subject matter of the Security, nor shall it be required to pay
with its own funds the fees of solicitors, counsel, auditors, experts or agents
engaged by it as permitted hereby.
9.8.5 The Agent shall be entitled to receive a fee for acting as Agent
as agreed in the Fee Agreement or as otherwise agreed between the Agent and NSCL
from time to time.
- 87 -
9.9 ACKNOWLEDGEMENTS, REPRESENTATIONS AND COVENANTS OF LENDERS
9.9.1 It is acknowledged and agreed by each Lender that it has itself
been, and will continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition, creditworthiness,
property, affairs, status and nature of the Restricted Parties. Accordingly,
each Lender confirms to the Agent that it has not relied, and will not hereafter
rely, on the Agent (a) to check or inquire on its behalf into the adequacy or
completeness of any information provided by the Restricted Parties under or in
connection with this Agreement or the transactions herein contemplated (whether
or not such information has been or is hereafter distributed to such Lender by
the Agent) or (b) to assess or keep under review on its behalf the financial
condition, creditworthiness, property, affairs, status or nature of the
Restricted Parties.
9.9.2 Each Lender represents and warrants that it has the legal capacity
to enter into this Agreement pursuant to its charter and any applicable
legislation and has not violated its charter, constating documents or any
applicable legislation by so doing.
9.9.3 Each Lender agrees to indemnify the Agent (to the extent not
reimbursed by the Borrower), rateably according to its Proportionate Share from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of the Credit Documents or the
transactions therein contemplated, provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or wilful misconduct. Without limiting the generality
of the foregoing, each Lender agrees to reimburse the Agent for its
Proportionate Share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preservation of any rights of the
Agent or the Lenders under, or the enforcement of, or legal advice in respect of
rights or responsibilities under this Agreement, to the extent that the Agent is
not reimbursed for such expenses by the Borrower. The obligation of the Lenders
to indemnify the Agent shall survive the termination of this Agreement and shall
be performed by the Lenders promptly upon demand by the Agent.
9.9.4 Each of the Lenders acknowledges and confirms that in the event
that the Agent does not receive payment in accordance with this Agreement, it
shall not be the obligation of the Agent to maintain the Credits in good
standing nor shall any Lender have recourse to the Agent in respect of any
amounts owing to such Lender under this Agreement.
9.9.5 Each Lender acknowledges and agrees that its obligation to advance
its Proportionate Share of Advances in accordance with the terms of this
Agreement is independent and in no way related to the obligation of any other
Lender hereunder.
9.9.6 Each Lender hereby acknowledges receipt of a copy of this
Agreement and the Security (to the extent that the Security has been delivered)
and acknowledges that it is satisfied with the form and content of such
documents.
- 88 -
9.10 COLLECTIVE ACTION OF THE LENDERS
Each of the Lenders hereby acknowledges that to the extent
permitted by applicable law, the Security and the remedies provided under the
Credit Documents to the Lenders are for the benefit of the Lenders collectively
and acting together and not severally and further acknowledges that its rights
hereunder and under the Security are to be exercised not severally, but by the
Agent upon the decision of the Majority Lenders or Lenders as required by this
Agreement. Accordingly, notwithstanding any of the provisions contained herein
or in the Security each of the Lenders hereby covenants and agrees that it shall
not be entitled to take any action hereunder or thereunder including, without
limitation, any declaration of default hereunder or thereunder but that any such
action shall be taken only by the Agent with the prior written agreement of the
Majority Lenders. Each of the Lenders hereby further covenants and agrees that
upon any such written agreement being given by the Majority Lenders, it shall
co-operate fully with the Agent to the extent requested by the Agent.
Notwithstanding the foregoing, in the absence of instructions from the Lenders
and where in the sole opinion of the Agent, acting reasonably and in good faith,
the exigencies of the situation warrant such action, the Agent may without
notice to or consent of the Lenders take such action on behalf of the Lenders as
it deems appropriate or desirable in the interest of the Lenders.
9.11 SUCCESSOR AGENT
Subject to the appointment and acceptance of a Successor Agent as
provided in this Section, and subject to Section 9.7.5(d), the Agent may resign
at any time by giving 30 days' written notice thereof to the Lenders and NSCL,
and may be removed at any time by the Majority Lenders upon 30 days' written
notice. Upon receipt of notice by the Lenders of the resignation of the Agent,
or upon giving notice of termination to the Agent, the Majority Lenders may,
within 21 days, appoint a successor from among the Lenders or, if no Lender is
willing to accept such an appointment, from among other banks to which the BANK
ACT (Canada) applies, which each have combined capital and reserves in excess of
$250,000,000, and which have offices in Vancouver, Toronto and New York (the
"SUCCESSOR AGENT"). If no Successor Agent has been so appointed and has accepted
such appointment within 21 days after the retiring Agent's giving of notice of
resignation or receiving of notice of termination, then the retiring Agent may,
on behalf of the Lenders, appoint a Successor Agent. Upon the acceptance of any
appointment as Agent hereunder by a Successor Agent, the retiring Agent shall
pay the Successor Agent any unearned portion of any fee paid to the Agent for
acting as such, and the Successor Agent shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its further duties and obligations as
Agent under this Agreement and the other Credit Documents. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
continue to enure to its benefit and be binding upon it as to any actions taken
or omitted to be taken by it while it was Agent hereunder.
9.12 PROVISIONS OPERATIVE BETWEEN LENDERS AND AGENT ONLY
Except for the provisions of Sections 9.7.5, 9.9.2, 9.9.5, 9.10,
9.11 and 9.12, the provisions of this Article relating to the rights and
obligations of the Lenders and the Agent
- 89 -
INTER SE shall be operative as between the Lenders and the Agent only, and the
Restricted Parties shall not have any rights or obligations under or be entitled
to rely for any purpose upon such provisions.
ARTICLE X
ADDITIONAL LENDERS,
SUCCESSORS AND ASSIGNS
10.1 SUCCESSORS AND ASSIGNS
10.1.1 The Credit Documents shall be binding upon and enure to the
benefit of the Agent, the Arrangers, each Lender, the Restricted Parties and
their respective successors and permitted assigns, except that the Restricted
Parties shall not assign any rights or obligations with respect to this
Agreement or any of the other Credit Documents without the prior written consent
of each Lender.
The collective rights and obligations of the Lenders under this
Agreement are assignable in whole or in part (PRO RATA) and any Lender shall be
entitled to assign in whole or in part its individual rights and obligations
hereunder or to permit other financial institutions to participate in the
Credits, all in accordance with the provisions of Section 10.2 and the other
terms of this Agreement. The Restricted Parties hereby consent to the disclosure
of any information relating to the Restricted Parties to any potential Lender or
participant provided that the potential Lender or participant agrees in writing
to keep the information confidential.
No assignment shall be made in respect of an aggregate Commitment
of less than $5,000,000 in respect of the Credits. No assignment may result in
the Commitment of any Lender, determined as of the effective date of the
Assignment Agreement with respect to such assignment, being less than
$5,000,000.
Notwithstanding any other provisions of this Agreement, each
Lender agrees that it shall not offer to assign or assign any portion of its
rights and obligations under this Agreement including, without limitation, any
portion of its Commitment, without the prior written consent of the Agent and
NSCL, which consent shall not be unreasonably withheld, except that (i) the
consent of the Agent and NSCL shall not be required for an assignment of a
Lender's interest in the Credits to another Lender and (ii) the consent of NSCL
shall not be required if an Event of Default has occurred and is continuing. The
Lenders agree that NSCL's consent shall not be considered to be unreasonably
withheld if the proposed assignment would result in any material additional cost
being incurred by the Borrower, including but not limited to any gross-up for
withholding tax under Section 11.14. Notwithstanding the foregoing, the Borrower
may not withhold its consent because of any increase in the discount rate
applicable to Bankers' Acceptances of the proposed assignee compared to the
assignor.
10.1.2 A participation by a Lender of its interest (or a part thereof)
hereunder or a payment by a participant to a Lender as a result of the
participation will not constitute a payment hereunder to the Lender or an
Advance to the Borrower. A payment (excluding the effect of any premium or
discount) made by an assignee to an assigning Lender in order
- 90 -
for the assignee to assume its Proportionate Share of Advances made by the
assigning Lender will reduce the Advances owing by the Borrower to the assigning
Lender by the amount of the payment and will be result in Advances in the amount
of the payment becoming owed to the assignee by the Borrowers as of the date
that the payment is made. However, no such payment shall, as between the
Borrowers and the Lenders, be or be deemed to be a repayment by the Borrowers or
a new Advance by the Lenders.
10.2 ASSIGNMENTS
10.2.1 Subject to Section 10.1 and the other terms of this Agreement, the
Lenders collectively or individually may assign to one or more assignees all or
a portion of their respective rights and obligations under this Agreement
(including, without limitation, all or a portion of their respective
Commitments). The parties to each such assignment shall execute and deliver an
Assignment Agreement to the Agent, for its consent (if necessary) and recording
in the Register and shall pay a processing and recording fee to the Agent in the
amount of $3500. After such execution, delivery, consent and recording (i) the
assignee thereunder shall be a party to this Agreement and, to the extent that
rights and obligations hereunder have been assigned to it, have the rights and
obligations of a Lender hereunder and (ii) the assigning Lender thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment Agreement, relinquish its rights, other than
rights to expense reimbursement and indemnification to which it is then entitled
hereunder, and be released from its obligations under this Agreement, other than
obligations in respect of which it is then in default and liabilities arising
from its actions prior to the assignment. In the case of an Assignment Agreement
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.
10.2.2 The agreements of an assignee contained in an Assignment Agreement
shall benefit the assigning Lender thereunder, the other Lenders and the Agent
in accordance with the terms of the Assignment Agreement.
10.2.3 The Agent shall maintain at its address referred to herein a copy
of each Assignment Agreement delivered to and acknowledged by it and a register
for recording the names and addresses of the Lenders and the Commitment under
the Credits of each Lender from time to time (the "REGISTER"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error. The Borrower, the Agent and each of the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement, and need not recognize any person as a Lender unless it is
recorded in the Register as a Lender. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
10.2.4 Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee and approved by the Agent (as evidenced by its
execution thereof), the Agent shall, if the Assignment Agreement has been
completed and is in the required form with such immaterial changes as are
acceptable to the Agent, record the information
- 91 -
contained therein in the Register and update Schedule E. The Agent shall provide
NSCL with an updated version of Schedule E following any change to Schedule E.
10.3 PARTICIPATIONS
Each Lender may (subject to the provisions of Section 10.1) sell
participations to one or more financial institutions or other persons in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment), but the participant
shall not become a Lender and:
(a) the Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(b) the Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with the Lender in
connection with the Lender's rights and obligations under
this Agreement;
(d) no participant shall have any right to approve any
amendment or waiver of any provision of this Agreement, or
any consent to any departure by any person therefrom.
Notwithstanding the foregoing, each participant shall have the
same benefit, as if it was a Lender, with respect to the rights provided to the
Lenders in Section 11.15. Each participant shall also have the right to be
provided by the Lender from whom it has obtained its participation with all
information relating to the Restricted Parties which is provided to any Lender.
Without limiting the foregoing, no participant shall have the benefit of Section
11.14 except to the extent that the Lender from whom it has obtained its
participation is itself entitled to compensation under that Section.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 HEADINGS AND TABLE OF CONTENTS
The headings of the Articles and Sections and the Table of
Contents are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
11.2 ACCOUNTING TERMS
Each accounting term used in this Agreement, unless otherwise
defined herein, has the meaning assigned to it under GAAP.
- 92 -
11.3 CAPITALIZED TERMS
All capitalized terms used in any of the Credit Documents (other
than this Agreement) which are defined in this Agreement shall have the meaning
defined herein unless otherwise defined in the other document.
11.4 SEVERABILITY
Any provision of this Agreement which is or becomes prohibited or
unenforceable in any relevant jurisdiction shall not invalidate or impair the
remaining provisions hereof which shall be deemed severable from such prohibited
or unenforceable provision and any such prohibition or unenforceability in any
such jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. Should this Agreement fail to provide for any relevant
matter, the validity, legality or enforceability of this Agreement shall not
thereby be affected.
11.5 NUMBER AND GENDER
Unless the context otherwise requires, words importing the
singular number shall include the plural and vice versa, words importing any
gender include all genders and references to agreements and other contractual
instruments shall be deemed to include all present or future amendments,
supplements, restatements or replacements thereof or thereto.
11.6 AMENDMENT, SUPPLEMENT OR WAIVER
No amendment, supplement or waiver of any provision of the Credit
Documents, nor any consent to any departure by a Restricted Party therefrom,
shall in any event be effective unless it is in writing, makes express reference
to the provision affected thereby and is signed by the Agent for and on behalf
of the Lenders or the Majority Lenders, as the case may be, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. In addition, any amendment or supplement shall require
the written consent of the other parties to the Credit Document in question. No
waiver or act or omission of the Agent, the Lenders, or any of them, shall
extend to or be taken in any manner whatsoever to affect any subsequent Event of
Default or breach by a Restricted Party of any provision of the Credit Documents
or the rights resulting therefrom.
11.7 GOVERNING LAW
Each of the Credit Documents, except for those which expressly
provide otherwise, shall be conclusively deemed to be a contract made under, and
shall for all purposes be exclusively governed by and construed in accordance
with, the laws of the Province of British Columbia and the laws of Canada
applicable in British Columbia. Each party to this Agreement hereby irrevocably
and unconditionally attorns to the non-exclusive jurisdiction of the courts of
British Columbia and all courts competent to hear appeals therefrom.
- 93 -
11.8 THIS AGREEMENT TO GOVERN
In the event of any conflict between the terms of this Agreement
and the terms of any other Credit Document (other than the Fee Agreement and any
Intercreditor Agreement, which shall prevail as against this Agreement), the
provisions of this Agreement shall govern to the extent necessary to remove the
conflict.
11.9 PERMITTED ENCUMBRANCES
The designation of an Encumbrance as a Permitted Encumbrance is
not, and shall not be deemed to be, an acknowledgment by the Lenders that the
Encumbrance shall have priority over the Security.
11.10 CURRENCY
All payments made hereunder shall be made in the currency in
respect of which the obligation requiring such payment arose. Unless the context
otherwise requires, all amounts expressed in this Agreement in terms of money
shall refer to Canadian Dollars.
Except as otherwise expressly provided in this Agreement, wherever
this Agreement contemplates or requires the calculation of the equivalent in one
currency of an amount expressed in another currency, the calculation shall be
made on the basis of the Exchange Rate at the effective date of the calculation.
11.11 LIABILITY OF LENDERS
The liability of the Lenders in respect of all matters relating to
this Agreement and the other Credit Documents is several and not joint or joint
and several. Without limiting that statement, the obligations of the Lenders to
make Advances is limited to their respective Proportionate Shares of any Advance
that is requested, and, in the aggregate, to their respective Proportionate
Shares of the total amounts of the Credits.
11.12 EXPENSES AND INDEMNITY
All statements, reports, certificates, opinions, appraisals and
other documents or information required to be furnished to the Lenders, the
Agent, or any of them, by the Restricted Parties under this Agreement shall be
supplied without cost to the Lenders, the Agent, or any of them. The Borrower
shall pay on demand all reasonable third party costs and expenses of the
Lenders, or any of them (including, without limitation, the reasonable fees and
expenses of counsel for the Lenders and the Agent collectively, but not
separately for individual Lenders and the Agent, on a solicitor and own client
basis), incurred in connection with (i) the preparation, execution, delivery,
administration, periodic review and enforcement of the Credit Documents; (ii)
obtaining advice as to their rights and responsibilities in connection with the
Credits and the Credit Documents; (iii) reviewing, inspecting and appraising the
collateral that is the subject of the Security at reasonable intervals; (iv) the
syndication of the Credits; (v) due diligence; and (vi) other matters relating
to the Credits. Such costs and expenses shall be payable whether or not an
Advance is made under this Agreement.
- 94 -
The Borrower shall indemnify the Lenders, the Agent, the
Arrangers, the Syndication Agents, and each of them, and their respective
officers, directors, trustees, employees and agents against any liability,
obligation, loss or expense which any of them may sustain or incur as a
consequence of (i) any representation or warranty made herein by a Restricted
Party which was incorrect at the time it was made or deemed to have been made,
(ii) a default by the Borrower in the payment of any sum due from it under or in
connection with the Credit Documents (irrespective of whether an Advance is
deemed to be made to pay the amount that has not been paid), including, but not
limited to, all sums (whether in respect of principal, interest or any other
amount) paid or payable to lenders of funds borrowed by the Lenders, the Agent,
or any of them, in order to fund the amount of any such unpaid amount to the
extent the Lenders, the Agent, or any of them, are not reimbursed pursuant to
any other provisions of this Agreement, (iii) the failure of the Borrower to
complete any Advance or make any payment after notice therefor has been given
under this Agreement, (iv) the failure of a purchaser of Bankers' Acceptances
(other than one of the Lenders) to pay for and take delivery of them in any
arrangement for sale made by the Borrower and communicated to the Agent, (v) any
other default by a Restricted Party hereunder, and (vi) generally, the Lenders
and the Agent having entered into this Agreement and the other Credit Documents
and made Advances to the Borrower. A certificate of a Lender or the Agent as to
the amount of any such loss or expense shall be conclusive evidence as to the
amount thereof, in the absence of manifest error provided that the Lender
determines the amount owing to it in good faith using any reasonable method and
provides a detailed description of its calculation of the amount owing to it.
In no event shall any party to this Agreement be liable for
consequential damages suffered by any other party.
The agreements in this Section shall survive the termination of
this Agreement and repayment of the Obligations.
11.13 ENVIRONMENTAL INDEMNITY
The Borrower shall protect, indemnify and hold the Agent and the
Lenders and all directors, officers, employees and agents of the Agent or the
Lenders harmless from and against any and all actual or potential claims,
liabilities, damages, losses, fines, penalties, sanctions, judgments, awards,
costs and expenses whatsoever (including, without limitation, costs and expenses
of investigating, denying or defending any of the foregoing and costs and
expenses for preparing any necessary environmental assessment report or other
such reports) which arise out of or relate in any way to:
(a) the presence, use, handling, production, transportation,
storage, release, deposit, discharge or disposal of any
Hazardous Materials in, on or about any Property owned,
operated or occupied by the Restricted Parties and their
Subsidiaries, whether by the Restricted Parties or any
other person;
(b) any remedial action taken by the Agent or any Lender in
connection with any matter referred to in paragraph (a),
including without limitation any repair, clean-up,
remediation or detoxification of any of such Property and
the preparation of any closure or other required plans; and
- 95 -
(c) any breach by any Restricted Party of any Environmental
Law.
Notwithstanding anything to the contrary contained in this
Agreement, (i) the indemnity provisions set forth above shall not apply with
respect to Hazardous Materials, contaminants, wastes or other substances which
the Borrower establishes were first placed on, in, under or about the property
in question after the Agent or a Lender or other indemnified party took actual
and exclusive possession of the property (either through foreclosure or
otherwise), and (ii) the indemnity provisions set forth above are not intended
to indemnify any indemnified party for its own gross negligence or wilful
misconduct.
If any Hazardous Materials are caused to be removed by any
Restricted Party, the Agent, a Lender or any other indemnified party, then such
Hazardous Materials will be and remain the property of the Restricted Party to
which they belonged before removal, and such Restricted Party will assume any
and all liability for such removed Hazardous Materials. The Borrower understands
that its liability to the indemnified parties under this Section will survive
the termination of this Agreement and repayment of the Obligations.
11.14 MANNER OF PAYMENT AND TAXES
All payments to be made by or on behalf of the Restricted Parties
(or in the case of upfront fees and indemnity fees, by the Agent or any Lender
to another Lender or to an assignee of an interest in the Credits) in connection
with the Credit Documents are to be made without set-off, compensation or
counterclaim, free and clear of and without deduction for or on account of any
Tax, including but not limited to withholding taxes, other than Excluded Taxes,
except if such deduction is required by law or the administration thereof. If
any Tax, other than Excluded Taxes, is deducted or withheld from any payments
under the Credit Documents (including the remittance provided for in this
Section), the Restricted Party making payment shall promptly remit to the Agent
for the Lenders' benefit in the currency in which such payment was made, the
equivalent of the amount of Tax so deducted or withheld together with the
relevant receipt issued by the taxing or other receiving authority. Subject to
Section 5.28, if the Borrower is prevented by operation of law or otherwise from
paying, causing to be paid or remitting such Tax, the interest or other amount
payable under the Credit Documents will be increased to such rates as are
necessary to yield and remit to the Lenders the principal sum advanced or made
available together with interest at the rates specified in the Credit Documents
after provision for payment of such Tax.
If any Lender or the Agent becomes liable for any Tax in the
jurisdiction in which the person making a payment:
(a) under the Credit Documents, or
(b) to Restricted Parties or Subsidiaries,
is located, as a result of a payment being made without the required Tax in that
jurisdiction having been deducted or withheld, NSCL shall indemnify the Lender
or the Agent, as the case may be, for such Tax and any interest and penalties
thereon, and the indemnity payment shall be increased as necessary so that after
the imposition of any Tax in that
- 96 -
jurisdiction on the indemnity payment (including Tax in respect of any such
increase in the indemnity payment), the Lender or the Agent shall receive the
full amount of Taxes, interest and penalties for which it is liable in that
jurisdiction as a result of the failure to deduct or withhold Tax.
11.15 INCREASED COSTS ETC.
If the introduction of or any change in or in the interpretation
of, or any change in the application to any Restricted Party or any Lender of,
any law or any regulation or guideline from any central bank or other
governmental authority that is binding on any Restricted Party or any Lender
(whether or not having the force of law), including but not limited to any
reserve or special deposit requirement or any Tax (other than Excluded Taxes) or
any capital requirement, has due to the Lenders' compliance therewith the
effect, directly or indirectly, of (i) increasing the cost to the Lenders, or
any of them, of performing their respective obligations hereunder; (ii) reducing
any amount received or receivable by the Lenders, or any of them, hereunder or
its effective return hereunder or on its capital; or (iii) causing the Lenders,
or any of them, to make any payment or to forego any return based on any amount
received or receivable by the Lenders, or any of them, hereunder, then upon
demand from time to time the affected Restricted Party shall pay such amount as
shall compensate the Lenders for any such cost, reduction, payment or foregone
return that is not fully offset by an increase in the applicable interest rate
or rates or fees hereunder. Any certificate of a Lender in respect of the
foregoing will be conclusive evidence of the foregoing, except for manifest
error, provided that the Lender determines the amounts owing to it in good faith
using any reasonable averaging and attribution methods and provides a detailed
description of its calculation of the amounts owing to it.
11.16 INTEREST ON MISCELLANEOUS AMOUNTS
If a Restricted Party fails to pay any amount payable hereunder
(other than principal, interest thereon or interest upon interest which is
payable as otherwise provided in this Agreement) on the due date, that
Restricted Party shall, on demand, pay interest on such overdue amount to the
Agent from and including such due date up to but excluding the date of actual
payment, both before and after demand, default or judgment, at a rate of
interest per annum equal to the sum of the Prime Rate plus 3.0% per annum,
compounded monthly.
If the Borrower deposits cash as Collateral pursuant to a
requirement under this Agreement, the Lender or Lenders holding the cash shall
pay the Borrower interest on the cash while it continues to be held as
Collateral at the rate offered by the relevant Lenders from time to time for
deposits in the relevant currency of comparable size and term.
11.17 CURRENCY INDEMNITY
In the event of a judgment or order being rendered by any court or
tribunal for the payment of any amounts owing to the Lenders or any of them
under this Agreement or for the payment of damages in respect of any breach of
this Agreement or under or in respect of a judgment or order of another court or
tribunal for the payment of such amounts or damages, such judgment or order
being expressed in a currency (the "JUDGMENT CURRENCY") other than the currency
payable hereunder or thereunder ("the AGREED
- 97 -
CURRENCY"), the party against whom the judgment or order is made shall indemnify
and hold the Lenders harmless against any deficiency in terms of the Agreed
Currency in the amounts received by the Lenders arising or resulting from any
variation as between (i) the exchange rate at which the Agreed Currency is
converted into the Judgment Currency for the purposes of such judgment or order,
and (ii) the exchange rate at which each Lender is able to purchase the Agreed
Currency with the amount of the Judgment Currency actually received by the
Lender on the date of such receipt. The indemnity in this Section shall
constitute a separate and independent obligation from the other obligations of
the Restricted Parties hereunder, shall apply irrespective of any indulgence
granted by the Lenders, and shall be secured by the Security.
11.18 ADDRESS FOR NOTICE
Notice to be given under the Credit Documents shall, except as
otherwise specifically provided, be in writing addressed to the party for whom
it is intended and, unless the law or a specific provision in another Credit
Document deems a particular notice to be received earlier, a notice shall not be
deemed received until actual receipt thereof by the other party. The addresses
of the parties hereto for the purposes hereof shall be the addresses specified
beside their respective signatures to this Agreement or on any Assignment
Agreement, or such other mailing or telecopier addresses as each party from time
to time may notify the other as aforesaid. Notice to the other Restricted
Parties shall be sent in care of NSCL.
11.19 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
11.20 FURTHER ASSURANCES
The Restricted Parties shall, at the request of the Agent acting
on the instructions of the Majority Lenders, do all such further acts and
execute and deliver all such further documents as may, in the reasonable opinion
of the Majority Lenders, be necessary or desirable in order to fully perform and
carry out the purpose and intent of the Credit Documents.
11.21 TERM OF AGREEMENT
Except as otherwise provided herein, this Agreement shall remain
in full force and effect until the payment and performance in full of all of the
Obligations.
11.22 PAYMENTS ON BUSINESS DAY
Whenever any payment or performance under the Credit Documents
would otherwise be due on a day other than a Business Day, such payment shall be
made on the following Business Day, unless the following Business Day is in a
different calendar month, in which case the payment shall be made on the
preceding Business Day.
- 98 -
11.23 COUNTERPARTS AND FACSIMILE
This Agreement may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed to be an original, and such
counterparts together shall constitute one and the same agreement. For the
purposes of this Section, the delivery of a facsimile copy of an executed
counterpart of this Agreement shall be deemed to be valid execution and delivery
of this Agreement, but the party delivering a facsimile copy shall deliver an
original copy of this Agreement as soon as possible after delivering the
facsimile copy.
11.24 WAIVER OF JURY TRIAL, CONSEQUENTIAL DAMAGES ETC.
Each party hereto hereby waives, to the fullest extent permitted
by applicable law, any right it may have to a trial by jury in any legal
proceeding directly or indirectly arising out of or relating to this the Credit
Documents, the transactions contemplated thereby or any course of conduct,
course of dealing, statements (whether oral or written) or actions of any party
(whether based on contract, tort or any other theory).
No party shall assert, and each party hereby waives (to the
fullest extent permitted by applicable law), any claim against any other party
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, the Credit Documents, the transactions contemplated
thereby or any course of conduct, course of dealing, statements (whether oral or
written) or actions of any party (whether based on contract, tort or any other
theory).
The Restricted Parties acknowledge and agree that none of the
Agent or the Lenders shall have any liability to them in relation to any due
diligence investigations conducted by any of them in connection with the
transactions contemplated hereby or be under any obligation whatsoever to
disclose to them any information received or facts disclosed by any such
investigations. The Restricted Parties further acknowledge and agree that they
are not relying, will not rely, and will not be deemed, in any respect
whatsoever, to have relied upon the facts received by and information disclosed
to any of the Agent or the Lenders under or in connection with such due
diligence investigations.
Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
provisions and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement by, among other things, the waivers,
acknowledgments and certifications in this Section.
11.25 ENTIRE AGREEMENT
Except as expressly provided in the commitment letter, summary of
terms and conditions and fee letters dated 10 May 2002 issued by TD and RBC as
underwriters to the Borrower, this Agreement, the Fee Agreement and the
Intercreditor Agreements constitute the entire agreement between the parties
hereto concerning the matters addressed in this Agreement, and cancel and
supersede any prior agreements, undertakings, declarations or representations,
written or verbal, in respect thereof. Without limiting the foregoing, the
- 99 -
commitment letter, summary of terms and conditions and fee letter referred to
above are cancelled and superseded except as expressly provided therein.
11.26 DATE OF AGREEMENT
This Agreement may be referred to as being dated 19 July
2002 or as of 19 July 2002, notwithstanding the actual date of execution.
[NOTE: THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
S-1
IN WITNESS OF WHICH, the parties have executed this Agreement.
ADDRESS FOR NOTICE THE TORONTO-DOMINION
BANK, as Administration Agent
The Toronto-Dominion Bank
Corporate and Investment Banking By: /s/ authorized signatory
00 Xxxxxxxxxx Xxxxxx West, 38th Floor ------------------------------------
Toronto-Dominion Bank Tower Name:
Toronto, Ontario Title:
M5K 1A2
Attention: Vice President, Loan By: /s/ authorized signatory
Syndications - Agency ------------------------------------
Facsimile: 000-000-0000 Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-2
ADDRESS FOR NOTICE THE TORONTO-DOMINION
BANK, as Lender
The Toronto-Dominion Bank
TD Tower - Suite 660 By: /s/ authorized signatory
000 Xxxx Xxxxxxx Xxxxxx ----------------------------------
Xxxxxxxxx, XX Name:
X0X 0X0 Title:
Attention: Vice President, Corporate & By: /s/ authorized signatory
Investment Banking ----------------------------------
Facsimile: 000-000-0000 Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
X-0
XXXXXXX XXX XXXXXX XXXXX XXXX XX XXXXXX
------------------
Royal Bank of Canada
Corporate Credit By: /s/ authorized signatory
Xxxxx 0000, Xxxx Xxxxx, -----------------------------------
000 Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxxxxxx
Xxxxxxxxx, X.X. Managing Director, Global Banking
V6C 3B1
Attention: Managing Director By: /s/ authorized signatory
Facsimile: 000-000-0000 -----------------------------------
Xxxxxx Xxxx
Associate
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
X-0
XXXXXXX XXX XXXXXX XXXXXXX XXXXX XXXXXXX
XXXXXX INC.
Xxxxxxx Xxxxx Capital Canada Inc.
000 Xxx Xxxxxx
0xx Xxxxx By: /s/ authorized signatory
Xxxxxxx, Xxxxxxx --------------------------------------
X0X 0X0 Name:
Title:
Attention: Xxxxxxx Xxxxx By: /s/ authorized signatory
Facsimile: 000-000-0000 --------------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
X-0
XXXXXXX XXX XXXXXX XXX XXXX XX XXXX XXXXXX
------------------
The Bank of Nova Scotia By: /s/ authorized signatory
000 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx ---------------------------------
Xxxxxxxxx, XX Name:
V6B 4N7 Title:
Attention: Xxxx Xxxxxxxx By: /s/ authorized signatory
Facsimile: 000-000-0000 ---------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-6
ADDRESS FOR NOTICE BANK OF MONTREAL
Bank of Montreal
1400, 000-0xx Xxxxxx X.X. By: /s/ authorized signatory
Xxxxxxx, Xxxxxxx ------------------------------------
X0X 0X0 Name:
Title:
Attention: Xxxx Xxxxxx By: /s/ authorized signatory
Facsimile: 000-000-0000 ------------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-7
ADDRESS FOR NOTICE HSBC BANK CANADA
------------------
HSBC Bank Canada By: /s/ authorized signatory
000 Xxxx Xxxxxxx Xxxxxx ------------------------------------
Suite 200 Name:
Vancouver, B.C. Title:
X0X 0X0
By: /s/ authorized signatory
Attention: Xxxxx Xxxxxx ------------------------------------
Facsimile: 000-000-0000 Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-8
ADDRESS FOR NOTICE LAURENTIAN BANK OF CANADA
------------------
Laurentian Bank of Canada By: /s/ authorized signatory
000 Xxxxxxxx Xxxxxx Xxxx ----------------------------------
Xxxxxxx, Xxxxxxx Name:
X0X 0X0 Title:
By: /s/ authorized signatory
Attention: Xxxxxxx Xxxxxxxxx ----------------------------------
Facsimile: 000-000-0000 Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-9
ADDRESS FOR NOTICE CANADIAN WESTERN BANK
------------------
Canadian Western Bank
Park Place Branch By: /s/ authorized signatory
000 Xxxxxxx Xxxxxx, Xxxxx 000 -----------------------------------
Vancouver, B.C. Name:
X0X 0X0 Title:
By: /s/ authorized signatory
Attention: Xxx Xxxxxxxx -----------------------------------
Facsimile: 604-688-7117 Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-10
ADDRESS FOR NOTICE BANK OF AMERICA, N.A.
CANADA BRANCH
Bank of America, N.A., Canada Branch
000 Xxxxx Xxxxxx Xxxx By: /s/ authorized signatory
Xxxxx 0000 -------------------------------------
Xxxxxxx, Xxxxxxx Name:
X0X 0X0 Title:
Attention: Xxxxx XxXxxxxx By: /s/ authorized signatory
Facsimile: 000-000-0000 -------------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-11
ADDRESS FOR NOTICE CANADIAN IMPERIAL BANK OF COMMERCE
------------------
Canadian Imperial Bank of Commerce By: /s/ authorized signatory
BCE Place ---------------------------------------
000 Xxx Xxxxxx, 0xx Xxxxx Name:
Toronto, Ontario Title:
X0X 0X0
By: /s/ authorized signatory
---------------------------------------
Attention: Xxxx Xxxxxxxx Name:
Facsimile: 000-000-0000 Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-12
ADDRESS FOR NOTICE NORSKE XXXX CANADA LIMITED
------------------
Norske Xxxx Canada Limited By: /s/ Xxxxx Xxxxxxx
9th Floor -----------------------------------------
000 Xxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
Vancouver, British Columbia Treasurer
V7Y 1J7
Attention: Chief Financial Officer By: /s/ Xxxxx Xxxxxxxx
Facsimile: 000-000-0000 -----------------------------------------
Xxxxx Xxxxxxxx
Vice President Finance and Chief
Financial Officer
with a copy to:
NORSKE XXXX CANADA
Xxxxxx Xxxxxxx FINANCE LIMITED
Barristers and Solicitors
Suite 0000 Xxxxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
V6C 3L2 -----------------------------------------
Xxxxx Xxxxxxx
Attention: Xxxxx X. Xxxxx Treasurer
Facsimile: 000-000-0000
ELK FALLS PULP AND PAPER LIMITED
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Xxxxx Xxxxxxx
President
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-13
NORSKE XXXX CANADA
LIMITED AS MANAGING PARTNER FOR
AND ON BEHALF OF NORSKECANADA
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
Treasurer
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx
Vice President Finance and
Chief Financial Officer
NORSKE XXXX CANADA PULP
OPERATIONS LIMITED
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
NORSKE XXXX CANADA SALES INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
NSCL HOLDINGS INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
NORSKE XXXX CANADA (USA) INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
S-14
NORSKE XXXX CANADA (JAPAN) LTD.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxx
Director
NORSKE XXXX PULP SALES (JAPAN) LTD.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
Director
NORSKE XXXX CANADA PULP SALES INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA PAPERS SALES LTD.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
President
PACIFICA PAPERS SALES INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
PACIFICA PAPERS KABUSHIKI KAISHA
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Director
PACIFICA POPLARS LTD.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
President
PACIFICA POPLARS INC..
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
PACIFICA PAPERS US INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxxxxx
Treasurer
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 19 JULY 2002 RELATING TO NORSKE
XXXX CANADA LIMITED ET AL]
SCHEDULE A
NOTICE OF ADVANCE OR PAYMENT
[SEE REFERENCE IN SECTION 5.6]
TO: THE TORONTO-DOMINION BANK
Corporate and Investment Banking
00 Xxxxxxxxxx Xxxxxx West, 38th Floor
Toronto-Dominion Bank Tower
Toronto, Ontario
M5K 1A2
Attention: Vice President, Loan Syndications - Agency
Facsimile: 000-000-0000
[NOTE: NOTICE TO BE SENT TO RBC IN CONNECTION WITH CREDIT 2]
We refer to the credit agreement dated as of 19 July 2002 between
Norske Xxxx Canada Limited and others as Restricted Parties, The
Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents named therein, as amended, supplemented, restated or replaced
from time to time (the "Credit Agreement"). All capitalized terms used in this
certificate and defined in the Credit Agreement have the meanings defined in the
Credit Agreement.
REQUEST FOR ADVANCE
Notice is hereby given pursuant to Section 5.6 of the Credit
Agreement that the undersigned hereby irrevocably requests as follows:
(A) that an Advance be made under the following Credit [CHECK ONE]:
Credit 1 ( )
Credit 2 ( )
(B) the requested Advance represents the following [CHECK ONE OR MORE]:
initial Advance under the Credit ( )
Increase in Advances under the Credit ( )
Rollover of existing Advances under the Credit ( )
conversion of existing Advances to another type of Advance ( )
(C) the Drawdown Date shall be
--------------------------------------------------
(D) the Advance shall be in the form of [CHECK ONE OR MORE AND COMPLETE
DETAILS]:
Prime Rate Advance ( )
Amount $
--------------------
- 2 -
Bankers' Acceptances ( )
Face Amount:
--------------------
Term:
--------------------
Base Rate Advance ( )
Amount US$
--------------------
LIBOR Advance ( )
Currency:
---------------------------
Amount:
---------------------------
End of LIBOR Period:
---------------------------
L/C ( )
Nominal amount:
---------------------------
Expiry date:
---------------------------
[NOTE: ATTACH PROPOSED FORM OR DETAILS]
(E) the proceeds of the Advance shall be deposited in [SPECIFY DESIGNATED
ACCOUNT]
The undersigned hereby confirms as follows:
(a) the representations and warranties made in Section 6.1 of the Credit
Agreement, other than those expressly stated to be made as of a
specific date, are true on and as of the date hereof with the same
effect as if such representations and warranties had been made on and
as of the date hereof, subject to modifications made by NSCL to the
Lenders in writing and accepted by the Majority Lenders;
(b) no Pending Event of Default or Event of Default has occurred and is
continuing on the date hereof or will result from the Advance(s)
requested herein [EXCEPT o];
(c) after reasonable inquiry, there is no reason to believe that NSCL will
not be in compliance with all covenants contained in Section 7.1 of the
Credit Agreement at the end of its current fiscal quarter and was not
in compliance with those covenants at the end of its immediately
preceding fiscal quarter if it has not yet delivered its Compliance
Certificate for that quarter [EXCEPT o];
(d) the undersigned will immediately notify you if it becomes aware of the
occurrence of any event which would mean that the statements in the
immediately preceding paragraphs (a), (b) and (c) would not be true if
made on the Drawdown Date;
(e) all other conditions precedent set out in Section 4.2 [AND SECTION
4.1] of the Credit Agreement have been fulfilled.
- 3 -
NOTICE OF PAYMENT
Pursuant to Section 5.6 of the Credit Agreement, the undersigned
hereby irrevocably notifies you of the following:
(a) that a payment will be made under the following Credit [CHECK ONE]:
Credit 1 ( )
Credit 2 ( )
(b) the payment represents the following [CHECK ONE OR MORE]:
reduction in Advances under the Credit ( )
payment of existing Advances which will be rolled ( )
over as the same type of Advance under the Credit
payment of existing Advances which will be ( )
converted to another type of Advance under the Credit
(c) the payment date shall be
----------------------
(d) the Advance to be paid shall be in the form of [CHECK ONE OR MORE AND
COMPLETE details]:
Prime Rate Advance ( )
Amount $
------------------
Bankers' Acceptances ( )
Face Amount
------------------
Maturity Date
------------------
Base Rate Advance ( )
Amount US$
------------------
LIBOR Advance ( )
Currency:
---------------------------
Amount:
---------------------------
Start of LIBOR Period:
---------------------------
- 4 -
DATED:
----------------------------------------------------------
NORSKE XXXX CANADA FINANCE LIMITED
By:
---------------------------------
Name:
Title:
SCHEDULE B
AGREEMENT OF NEW RESTRICTED SUBSIDIARY
SUPPLEMENT TO CREDIT AGREEMENT
[SEE REFERENCE IN SECTION 3.1]
THIS AGREEMENT supplements the credit agreement dated as of 19
July 2002 between Norske Xxxx Canada Limited and others as Restricted Parties,
The Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents named therein, as amended, supplemented, restated or replaced
from time to time (the "Credit Agreement").
RECITALS
A. Capitalized terms used and not defined in this Agreement have the meanings
defined in the Credit Agreement.
B. The Credit Agreement contemplates that further Subsidiaries of NSCL shall
become Restricted Parties in certain circumstances.
C. o (the "New Subsidiary") is required by the Credit Agreement to become a
Restricted Party.
D. The New Subsidiary has delivered the documents listed on Appendix A to this
Agreement, which form part of the Security, an opinion of its counsel and other
resolutions and ancillary documents required by the Agent, and a pledge of all
shares of the New Subsidiary owned by the other Restricted Parties has also been
delivered as part of the Security.
THEREFORE, for value received, and intending to be legally bound
by this Agreement, the parties agree as follows:
1. The New Subsidiary hereby acknowledges and agrees to the terms of the Credit
Agreement and agrees to be bound by all obligations of a Restricted Party under
the Credit Agreement as if it had been an original signatory thereto.
2. The Agent, on behalf of the Lenders, acknowledges that the New Subsidiary
shall be a Restricted Party as of the date of this Agreement.
- 2 -
IN WITNESS OF WHICH, the undersigned have executed this Agreement
as of o.
THE TORONTO-DOMINION BANK as Agent
By:
-------------------------------
Name:
Title:
[NEW SUBSIDIARY]
By:
-------------------------------
Name:
Title:
[NOTE: APPENDIX A TO BE ATTACHED TO LIST SECURITY]
SCHEDULE C
COMPLIANCE CERTIFICATE
[SEE REFERENCE IN SECTION 1.1.26]
TO: THE LENDERS (as defined in the Credit Agreement referred to below)
AND TO: THE TORONTO-DOMINION BANK, as Agent
--------------------------------------------------------------------------------
We refer to Section 7.3.1(d) of the credit agreement dated as of
19 July 2002 between Norske Xxxx Canada Limited and others as Restricted
Parties, The Toronto-Dominion Bank as Administration Agent and the Lenders,
Arrangers and Syndication Agents named therein, as amended, supplemented,
restated or replaced from time to time (the "Credit Agreement"). All capitalized
terms used in this certificate and defined in the Credit Agreement have the
meanings defined in the Credit Agreement.
1. The undersigned hereby certifies that:
(a) the representations and warranties made in Section 6.1 of the
Credit Agreement, other than those expressly stated to be made
as of a specific date, are true on and as of the date hereof
with the same effect as if such representations and warranties
had been made on and as of the date hereof, subject to
modifications made by the undersigned to the Lenders in
writing and accepted by the Majority Lenders;
(b) no Pending Event of Default or Event of Default has occurred
and is continuing on the date hereof [OR AS THE CASE MAY BE].
2. The undersigned hereby certifies that, as of the end of its
most-recently completed fiscal quarter, which ended on ,
(a) [INCLUDE ONLY IF PERMITTED SENIOR SECURED INDEBTEDNESS OR
PERMITTED SUBORDINATED SECURED INDEBTEDNESS IS OUTSTANDING AND
THE FUNDED DEBT RATIO IS GREATER THAN 0.40 TO 1] the Interest
Coverage Ratio is ______: 1.
(b) the Funded Debt Ratio is ______: 1.
(c) the Secured Debt Ratio is ______: 1.
(d) the value of its Consolidated Net Tangible Assets is
$______________________.
(e) its "Consolidated Fixed Charge Coverage Ratio" as defined
under the 1999 Indenture and the 2001 Indenture is ______: 1
and ______: 1, respectively.
(f) the Threshold Amount is $___________.
(g) [INCLUDE FOR YEAR END ONLY] its shareholders equity is
$_________.
- 2 -
3. Appendix A attached sets out the calculations of the amounts referred
to in paragraph 2 above.
4. Appendix B attached contains a list of all sales or other dispositions
of any Property of Restricted Parties (including Capital Stock of any
other person) during the term of this Agreement, other than
dispositions to another Restricted Party and sales of inventory in the
ordinary course of its business, and a list of all material Property of
a Restricted Party which has been expropriated, condemned, destroyed,
damaged or otherwise lost, with a description of the use of the
proceeds of disposition, insurance or other compensation.
5. Appendix C attached contains details of (i) all Other Secured
Obligations as of the end of the undersigned's most-recently completed
fiscal quarter, the classification under which they were incurred for
the purposes of section 4.06 of the each of the 1999 Indenture and the
2001 Indenture and the Market Value thereof, (ii) all outstanding
Permitted Senior Secured Indebtedness and Permitted Subordinated
Secured Indebtedness as of the end of the undersigned's most-recently
completed fiscal quarter and the classification under which it was
incurred for the purposes of section 4.06 of the each of the 1999
Indenture and the 2001 Indenture and (iii) the amount, as determined
under the 1999 Indenture and the 2001 Indenture, respectively, of any
other obligations that have been classified as being incurred under
clauses (i) or (ix) of the definition of "Permitted Indebtedness" in
the 0000 Xxxxxxxxx and the definition of "Permitted Debt" in the 2001
Indenture.
6. The undersigned hereby certifies that the current Reference Debt
Ratings established by Xxxxx'x and S&P are o and o, respectively.
Accordingly, the Applicable Fee Rate is o% per annum and the Applicable
Margins are as follows:
Margin for Prime Rate Advances/ Base Rate Advances - o%
Margin for LIBO Rate Advances - o%
7. [INCLUDE WITH REPORT FOR QUARTER IN WHICH 30 JUNE FALLS] The
undersigned hereby certifies that the consolidated net book value of
its inventory as at 30 June [YEAR] is $o and the net book value of all
inventory located in any jurisdiction where the Security has not been
registered over inventory in accordance with local requirements is $o
as at that date.
8. The undersigned hereby certifies that there is no jurisdiction where
the Security has not been registered over inventory in accordance with
local requirements in which the amount of inventory for all Restricted
Parties is greater than 50,000 tonnes.
9. The undersigned hereby certifies that the current consolidated net book
value of its fixed assets is $o and the net book value of all Property
other than inventory located in any jurisdiction where the Security
over such Property has not been registered in accordance with local
requirements is $o.
- 3 -
10. [REQUIRED ONLY IF PERMITTED SENIOR SECURED DEBT IN AN AGGREGATE
PRINCIPAL AMOUNT OF $100,000,000 OR MORE HAS BEEN INCURRED DURING THE
TERM OF THIS AGREEMENT] Appendix D attached is an up to date list of
all Material Contracts. [OR There has been no change to the list of
Material Contracts dated o]
11. Appendix E attached contains details of all releases of Hazardous
Materials on or from any land which any Restricted Party occupies or
controls during its most-recently completed fiscal quarter that were
reportable under applicable Requirements of Law, that have not
previously been reported to the Agent and in respect of which any
Restricted Party is or remains in non-compliance with any Environmental
Law as of the date of this certificate.
DATED _______________________________
NORSKE XXXX CANADA LIMITED
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
SCHEDULE D
ASSIGNMENT AGREEMENT
[SEE REFERENCE IN SECTION 1.1.8]
The undersigned refer to the credit agreement dated as of 19 July
2002 between Norske Xxxx Canada Limited and others as Restricted Parties, The
Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents named therein as amended, supplemented, restated or replaced
from time to time (the "Credit Agreement"). All capitalized terms used in this
Assignment Agreement and defined in the Credit Agreement have the meanings
defined in the Credit Agreement.
For value received, the "Assignor" and the "Assignee" named below
hereby agree as follows:
1. The Assignor hereby sells and assigns, without recourse, to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, the Proportionate
Share specified on Appendix 1 in and to the Assignor's rights and obligations
under the Credit Agreement, the Security and all other Credit Documents.
2. The Assignor (a) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder, that such interest is free
and clear of any lien or security interest and that it is entitled to enter into
this Assignment Agreement; (b) makes no representation or warranty, other than
as provided in this Assignment Agreement and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other Credit Document; and (c) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Restricted
Parties or any other guarantor or the performance or observance by the
Restricted Parties or any other guarantor of any of the obligations under the
Credit Agreement or any other Credit Document.
3. The Assignee, for the benefit of the Restricted Parties, the Agent and all
Lenders from time to time, including the Assignor, (a) acknowledges receipt of
any upfront fee payable by the Assignor, (b) confirms that it has received a
copy of the Credit Agreement, together with such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement; (c) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (d) appoints and authorizes the Agent to take such action
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (e) ratifies and
adopts the powers of attorney and related powers given to the Agent under the
Credit Agreement; (f) agrees that it will perform in accordance with their terms
all of the obligations that by the terms of the Credit Agreement are required to
be performed by it as a Lender, (g) agrees to be bound by the terms of all
Intercreditor
- 2 -
Agreements, and (h) specifies as its address for notice and payments its office
at the address set forth on Appendix 1 hereto.
4. Following the execution of this Assignment Agreement, it shall immediately be
delivered to the Agent, together with the processing and recording fee specified
in Section 10.2.1 of the Credit Agreement if applicable, for approval and
recording by the Agent, and NSCL, if applicable. The Assignee's agreement to
become a Lender, as constituted by this Assignment Agreement, is irrevocable,
unless the Assignee is not approved by the Agent, and NSCL if applicable. The
Assignee shall become a Lender, and shall be bound by the obligations and
entitled to the benefits in the Credit Agreement, immediately upon this
Assignment Agreement being approved and recorded by the Agent and NSCL, if
applicable (the "Effective Date"). On the Effective Date, the Assignee (a) shall
pay the Assignor an amount equal to the Assignee's Proportionate Share of Prime
Rate Advances and Base Rate Advances made by the Assignor as of the Effective
Date and (b) shall become entitled to receive standby fees in accordance with
the Credit Agreement in respect of its Proportionate Share of the aggregate
amount of the Credit that has not been advanced by the Lenders. The Assignee
shall make further Advances to the Borrower beginning on the first Drawdown Date
that is at least three Business Days following the Effective Date, as LIBOR
Advances and Advances by way of Bankers' Acceptances made by the Assignor
mature, until the Assignee has made Advances in an amount equal to its
Proportionate Share of the aggregate Advances made by all Lenders under the
Credit Agreement.
5. If Advances made by the Assignee to the Borrower are for any reason less than
the Assignee's Proportionate Share of the aggregate Advances made by all Lenders
under the Credit Agreement, the Assignee shall, on demand, indemnify the
Assignor in respect of the principal amount of the corresponding Advances made
by the Assignor in excess of the Assignor's Proportionate Share. The Advances by
the Assignor in respect of which the Assignee is bound to indemnify the Assignor
are set out on Appendix 2 to this Assignment Agreement. The Assignor shall pay
the Assignee indemnity fees during the period in which the Assignee is obliged
to indemnify the Assignor. The fee shall be in the amount specified on Appendix
2 and shall be payable on the Effective Date in respect of Advances by way of
Bankers' Acceptances, and on each date on which the Borrower pays interest on
LIBOR Advances, in respect of LIBOR Advances.
6. This Assignment Agreement shall be exclusively governed by, and construed in
accordance with the laws of the Province of British Columbia, Canada.
7. This Assignment Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Assignment Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Assignment Agreement.
- 3 -
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment Agreement to be executed by their duly authorized officers as of the
dates specified below.
Assignor:
--------------------------------------
By:
----------------------------------
Name:
Title:
Dated:
----------------------------------
Assignee:
-------------------------------------
By:
----------------------------------
Name:
Title:
Dated:
----------------------------------
[IF APPLICABLE]
Approved on Approved on
-------------------------- --------------------------
THE TORONTO-DOMINION BANK, NORSKE XXXX CANADA LIMITED
as Agent
By: By:
------------------------- -------------------------------
Name: Name:
Title: Title:
Effective Date: Date:
-------------------------- -------------------------------
APPENDIX 1
TO
ASSIGNMENT AGREEMENT
Proportionate Share assigned by Assignor:
---------------------------------------
Proportionate Share retained by Assignor:
---------------------------------------
Payment Details, including address of Assignee for notices:
APPENDIX 2
TO
ASSIGNMENT AGREEMENT
Advances in respect of which the Assignee is to indemnify the Assignor, as of
the Effective Date:
TYPE OF ADVANCE MATURITY DATE OF ADVANCE PRINCIPAL AMOUNT OF ADVANCE
Indemnity fee:
SCHEDULE E
PROPORTIONATE SHARES OF LENDERS
[SEE REFERENCES IN SECTIONS 1.1.25, 1.1.62, 1.1.93, 5.2, 10.2.4]
[PROPORTIONATE SHARES IN CREDITS ARE NIL UNLESS OTHERWISE SPECIFIED.
DOLLAR FIGURES REPRESENT INITIAL COMMITMENT]
TD
Credit 1 (adjusted in accordance with Section 5.2) - 17.647% ($52,500,000)
Credits (overall) - 15.000% ($52,500,000)
RBC
Credit 2 (adjusted in accordance with Section 5.2) -100% ($52,500,000)
Credits (overall) - 15.000% ($52,500,000)
CANADIAN IMPERIAL BANK OF COMMERCE
Credit 1 (adjusted in accordance with Section 5.2) - 14.286 % ($42,500,000)
Credits (overall) - 12.143% ($42,500,000)
BANK OF MONTREAL
Credit 1 (adjusted in accordance with Section 5.2) - 14.286 % ($42,500,000)
Credits (overall) - 12.143% ($42,500,000)
THE BANK OF NOVA SCOTIA
Credit 1 (adjusted in accordance with Section 5.2) - 14.286 % ($42,500,000)
Credits (overall) - 12.143% ($42,500,000)
HSBC BANK CANADA
Credit 1 (adjusted in accordance with Section 5.2) - 10.084% ($30,000,000)
Credits (overall) - 8.571% ($30,000,000)
BANK OF AMERICA, N.A. CANADA BRANCH
Credit 1 (adjusted in accordance with Section 5.2) - 10.084% ($30,000,000)
Credits (overall) - 8.571% ($30,000,000)
XXXXXXX XXXXX CAPITAL CANADA INC.
Credit 1 (adjusted in accordance with Section 5.2) - 8.403% ($25,000,000)
Credits (overall) - 7.143% ($25,000,000)
2
CANADIAN WESTERN BANK
Credit 1 (adjusted in accordance with Section 5.2) - 5.882% ($17,500,000)
Credits (overall) - 5.000% ($17,500,000)
LAURENTIAN BANK OF CANADA
Credit 1 (adjusted in accordance with Section 5.2) - 5.042% ($15,000,000)
Credits (overall) - 4.286% ($15,000,000)
SCHEDULE F
DETAILS OF CAPITAL STOCK, PROPERTY ETC.
[SEE REFERENCES IN SECTIONS 6.1.5(a), 7.4, 7.5.3(c)]
1. NORSKE XXXX CANADA LIMITED
CAPITAL STOCK: Public Company
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
P.O. Box 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
REAL PROPERTY:
Owned:
PID: LEGAL DESCRIPTION:
005 932 092 Those parts of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx
0000 shown outlined in red on Plan 925 RW
007 388 004 Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000 except parts
in Plans 11613, 13731 and 16471
000 000 000 That part of Parcel C (DD 36578I) of Section 2 Range 7 Chemainus
District outlined in red on Plan 920 RW
005 419 239 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 0000
in Plan 920 RW
009 024 174 That part of Parcel B (DD 99604I) of Section 5 Range 10 Chemainus
District outlined in red on Plan 925 RW
005 932 190 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 0000
lying to the south east of the south easterly boundary of
Plan 925 RW
009 024 336 That part of Section 3 Range 8 Chemainus District outlined in red
on Plan 920 RW
009 024 310 That part of Section 4 Range 9 Chemainus District outlined in red
on Plan 925 RW
009 024 379 That part of Parcel E (DD 141335I) of Xxxxxxx 0 Xxxxx 0
Xxxxxxxxx Xxxxxxxx outlined in red on Plan 920 RW
009 024 417 That part of Parcel D (DD 65699I) of Xxxxxxx 0 Xxxxx 0 Xxxxxxxxx
Xxxxxxxx outlined in red on Plan 920 RW
000 000 000 That part of Parcel D (DD 118337I) of Section 4 and 5 Range 8
Chemainus District outlined in red on Plan 920 RW and lying
wholly within Section 4
005 968 585 That portion of that part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxxxx
Xxxxxxxx Xxxx 0000 lying to the West of the Westerly boundary
of Plan 645 RW shown outlined in red on Plan 911 RW and
containing 1.27 acres more or less
009 739 637 Section 8 Range 9 Chemainus District
009 739 611 Section 7 Range 9 Chemainus District
009 739 718 Those parts of Section 9 Range 8 Chemainus District lying
East of the Chemainus River, including all that part of a strip
of land 33 feet wide as shown coloured purple and green on
Plan 16 BL known as Mainguy Road
009 739 688 Those parts of Section 8 Range 8 Chemainus District lying
East of the Chemainus River, including all that part of a strip
of land 33 feet wide as shown coloured purple and green on
Plan 16 BL, known as Mainguy Road
009 739 653 Those parts of Section 7 Range 8 Chemainus District, lying
East of the Chemainus River including all that part of a strip
of land 33 feet wide as shown coloured purple and green on
Plan 16 BL, known as Mainguy Road
009 739 785 Xxx 0X Xxxxxxxxx Xxxxxxxx
- 0 -
009 739 777 Xxx 0 Xxxxxxxxx Xxxxxxxx
003 982 840 Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 00000
004 798 619 Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 00000
004 979 087 Lot 1 Sections 3 and 4 Ranges 9 and 10 Chemainus District
Plan 12168
006 244 637 Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 3198
009 956 069 Section 3 Range 9 Chemainus District except parts in Plans 920 RW
and 921 RW
000 000 000 That part of Section 5 Renfrew District (situate in Cowichan Lake
District) as shown outlined in red on Plan 457 BL
006 912 524 Xxx 0 Xx 0 Xxxxxxx 0 Xxxxxxx Xxxxxxxx (situate in Cowichan Lake
District) Plan 1750
006 912 516 Xxx 0 Xx 0 Xxxxxxx 0 Xxxxxxx Xxxxxxxx (situate in Cowichan Lake
District) Plan 1750
008 768 820 District Xxx 000 Xxxxxxxx Xxxx Xxxxxxxx
006 912 567 Xxx 0 Xx 0 Xxxxxxx 0 Xxxxxxx Xxxxxxxx (situate in Cowichan Lake
District) Plan 1750
006 912 494 Xxx 0 Xx 0 Xxxxxxx 0 Xxxxxxx Xxxxxxxx (situate in Cowichan Lake
District) Plan 1750
006 912 451 Xxx 0 Xx 0 Xxxxxxx 0 Xxxxxxx Xxxxxxxx (situate in Cowichan Lake
District) Plan 1750
007 655 517 Block 0 XX 00 Xxxxxxxx Xxxx Xxxxxxxx Xxxx 0000 except part in
Plan 31221
005 145 473 Xxx 0 XX 00 Xxxxxxxx Xxxx Xxxxxxxx Xxxx 00000
007 663 544 That part of District Xxx 00 Xxxxxxxx Xxxx Xxxxxxxx being that
portion of Fern Road dedicated by Plan 1231 and closed by
Order-In-Council No. 1754 dated 16th day of July, 1956 as shown
outlined in red on Plan 458 BL
018 195 326 Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx VIP56262
005 338 859 That part of Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 0000
shown in red on Plan 903 RW
009 662 481 That part of Parcel G (DD 36290I) of Sections 18 and 19 Range 4
Quamichan District shown outlined in red on Plan 903 RW and
containing 0.08 acres and 0.30 acres more or less
009 662 278 That part of Parcel P (DD 76080I) of Sections 17, 18 and 19 Range
4 Quamichan District shown outlined in red on Plan 903 RW and
lying entirely in Section 18
006 360 564 That part of Xxx 00 Xxxxxxxx 00 xxx 00 Xxxxx 0 Xxxxxxxxx
Xxxxxxxx Xxxx 0000 shown in red on Plan 903 RW
006 738 567 That part of Xxx 0 Xx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx
Xxxx 0000 shown outlined in red on Plan 903 RW
006 738 524 That part of Xxx 0 Xx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx
Xxxx 0000 shown outlined in red on Plan 903 RW
006 738 354 That part of Xxx 0 Xx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx
Xxxx 0000 shown outlined in red on Plan 903 RW
006 360 742 That part of Xxx 00 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx
0000 shown in red on Plan 903 RW
006 157 971 That part of Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 0000
outlined red on Plan 903 RW
009 668 314 That part of Parcel D (DD 106367I) of Section 19 Range 4 Quamichan
District shown outlined in red on Plan 903 RW
006 068 065 That part of Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 0000
shown in red on Plan 903 RW
004 680 499 Lot A Section 19 Range 4 Quamichan District Plan 12945
005 586 445 Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 8636
005 586 437 Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 8636
005 586 429 Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 8636
006 442 382 That part of Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 910 RW
008 162 794 That part of Xxx 0 Xx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Plan
972 shown outlined in red on Plan 903 RW
009 797 807 That part of Section 20 Range 7 Somenos District outlined in red
on Plan 911 RW and containing 0.66 acres more or less
009 797 939 That part of Section 19 Range 7 Somenos District lying West of
Parcel A (DD 43540I) outlined in red on Plan 911 RW and containing
0.67 acres more or less
009 744 495 That part of the East 70 acres of Section 17 Range 6 Somenos
District shown outlined in red on Plan 911 RW
- 3 -
006 406 891 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
006 405 754 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
005 557 755 Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 9162
007 104 057 That part of Xxx 0 Xx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx
0000 shown outlined in red on Plan 902 RW
008 162 760 That part of Xxx 0 Xx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Plan
972 shown outlined in red on Plan 903 RW
005 934 389 That part of Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 911 RW
009 796 649 That part of Parcel A (DD 43540I) of Sections 19 and 20 Range 7
Somenos District lying within Section 19 included in Plan 911 RW
009 772 995 That part of Parcel A (DD 42185I) of Section 12 Range 5 Somenos
District shown outlined in red on Plan 910 RW
009 773 398 That part of Section 13 Range 5 Somenos District outlined in red
on Plan 910 RW
005 934 354 That part of Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 911 RW
008 162 824 That part of Xxx 0 Xx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Plan
972 shown outlined in red on Plan 903 RW
000 000 000 That part of Xxx 0 Xx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx
0000 shown outlined in red on Plan 902 RW
009 773 185 That part of Section 12 Range 5 Somenos District lying to the
south of Parcel A (DD 42185I) shown outlined in red on Plan 910 RW
009 774 483 Those parts of Parcel A (DD 89348I) of Sections 14 and 15 Range 5
Somenos District outlined in red on Plans 910 RW and 911 RW except
part in Plan 15076
006 248 110 That part of Xxx 0 Xxxxxxxx 00 xxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx
Xxxx 0000 shown outlined in red on Plan 827R included within Plan
911 RW
006 441 980 That part of Xxx 0 Xxxxxxxx 0 xxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx
0000 shown outlined in red on Plan 910 RW
000 000 000 That part of Xxx 0 Xxxxxxxx 00 xxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx
Xxxx 0000 shown outlined in red on Plan 911 RW except that part in
Plan 15076
009 744 517 That part of the west 50 acres of Section 18 Range 7 Somenos
District shown outlined in red on Plan 911 RW
009 744 444 That part of Parcel B (DD 77714I) of Xxx 00 Xxxxxxx Xxxxxxxx shown
outlined in red on Plan 911 RW 009 744 509 That part of the West
50 acres of Section 17 Range 7 Somenos District shown outlined in
red on plan deposited under DD 23410 included in Plan 911 RW
009 744 487 Those parts of Parcel A (DD 77714I) of Section 16 Range 6 Somenos
District shown outlined in red on Plan 911 RW
006 582 311 That part of Xxx X Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
006 568 556 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown in red on Plan 902 RW
009 872 906 That part of the south 1/2 of Section 8 Range 4 Somenos District
shown outlined in red on Plan 902 RW
000 000 000 That part of Xxx 0 Xxxxxxxx 0 xxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
000 000 000 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
006 609 007 That part of Xxx X Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
006 246 851 That part of Xxx 0 Xxxxxxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 911 RW except that part in Plan
15076
006 442 641 That part of Xxx 00 Xxxxxxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 910 RW
- 4 -
000 000 000 That part of Xxx 00 Xxxxxxx 00 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 910 RW
005 576 695 That part of Section 11 Range 4 Somenos District shown outlined in
red on Plan 910 RW
009 759 492 That part of Section 4 Range 3 Somenos District shown outlined in
red on Plan 902 RW
006 407 234 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
009 774 939 That part of Parcel C (DD 174586I) of Section 14 Range 5 Somenos
District outlined in red on Plan 910 RW
006 581 684 That part of Xxx X Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
000 000 000 That part of Xxx X Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
009 764 151 That part of Section 5 Range 4 Somenos District shown outlined in
red on Plan 902 RW
005 576 571 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown in red on Plan 903 RW
006 440 347 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 910 RW
007 104 375 That part of Xxx 0 Xx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx
0000 shown outlined in red on Plan 902 RW
006 406 939 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
007 104 936 That part of Xxx 0 Xx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx
0000 shown outlined in red on Plan 902 RW
000 000 000 That part of Xxx 0 Xxxxxxx 0 Xxxxxx 0 and 4 Somenos District Plan
2794 shown in red on Plan 902 RW
006 383 025 That part of Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 902 RW
005 576 539 Xxx 0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 8611 003 733 998 Xxx
0 Xxxxxxx 0 Xxxxx 0 Xxxxxxx Xxxxxxxx Xxxx 00000
007 388 209 Xxx 00 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000 Except part
in Plan 11574
013 194 976 That part of Section 5 Ranges 8, 9 and 10 and Section 4 Range 8
Chemainus District shown outlined in red in DD 27614
013 194 470 That part of Sections 4 and 5 Range 8 Chemainus District shown
outlined in red on plan attached to DD 24931
013 194 381 That part of Section 4 Range 8 Chemainus District shown outlined
in red on plan attached to DD 23242
013 143 123 That part of Sections 5 and 6 Range 10 and that part of the
foreshore of District Xxx 000 Xxxxxxxxx Xxxxxxxx shown coloured
red on plan deposited under DD 14529I
009 922 431 That part of Section 1 Range 11 Chemainus District lying to the
North of the Northerly boundary of Xxxxxxx Street as said street
is shown on Plan 739 and the production easterly of the said
northerly boundary, except parts in Plans 4257 and 23431
009 920 145 That part of Section 5 Range 9 Chemainus District lying Northerly
and Westerly of Plan 5803, except parts in Plans 4302 and 9775
009 925 431 Xxxxxxxx Xxx 0 Xxxxxxxxx Xxxxxxxx
009 921 168 That part of Section 2 Ranges 10 and 00 Xxxxxxxxx Xxxxxxxx in Plan
DD 8239I containing 31.7 acres more or less except part in Plan
856 BL
009 862 021 Xxxxxxxx Xxx 0 Xxxxxxxxx Xxxxxxxx 005 852 293 Xxx 0 Xxxxxxxx Xxx 0
Xxxxxxxxx Xxxxxxxx Xxxx 6538
009 034 595 Xxxxxxxx Xxx 0 Xxxxxxxxx Xxxxxxxx except part in Plan 6538
009 861 998 Xxxxxxxx Xxx 0 Xxxxxxxxx Xxxxxxxx
004 627 938 Xxx 0 Xxxxxxxxx Xxxxxxxx
000 000 887 District Xxx 000 Xxxxxxxxx Xxxxxxxx except that part included in
the right of way of the Esquimalt and Nanaimo Railway Company
006 116 981 That part of Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000
shown outlined in red on Plan 815 R
000 167 886 Lot A Xxxxxxx 0 Xxxxx 0 Xxxxxxxxx Xxxxxxxx Xxxx 00000
- 5 -
004 169 948 Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 00000
000 573 736 Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000 except part
in Plan 15020 and 41332
006 116 965 That part of Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000
lying to the north of a boundary parallel to the northerly
boundary of said lot and extending from a point on the easterly
boundary of said lot distant 1.515 chs. from the north east corner
of said lot
006 116 973 That part of Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 0000
lying south of a boundary parallel to the northern boundary of
said lot and extending from a point on the easterly boundary
thereof distant 1.515 chs. from the north east corner of said lot,
except that part thereof shown outlined in red on Plan 815R
006 066 551 Xxx 0 Xxxxxxx 0 Xxxxx 00 Xxxxxxxxx Xxxxxxxx Xxxx 4257
009 921 958 That part of Section 6 Range 10 Chemainus District lying to the
north of the right of way of the Esquimalt and Nanaimo Railway
Company
009 920 196 Section 6 Range 9 Chemainus District except parts in Plans 4302
and 5803
009 920 803 Section 4 Range 9 Chemainus District except the west 30 chains and
except parts in Plans 925 RW, 13072, 22398 and 32612
009 920 064 That part of Section 5 Range 8 Chemainus District lying easterly
of the centre line of Tsussie Creek (which is the easterly
boundary of Plan 4302) and to the north of the northerly boundary
of the right of way of the Esquimalt and Nanaimo Railway Company
shown on Plan DD 27614, except parts in Plans 5803 and 9775
024 662 666 Lot 1 of Sections 4, 5 & 6 Range 00 Xxxxxxxxx Xxxxxxxx Xxxx
XXX00000
024 662 674 Xxx 0 xx Xxxxxxxx 0, 0 & 0 Xxxxxx 00 & 11 Chemainus District and
of Sections 5 & 6 Range 10 Chemainus District and of District Lots
141 and 000 Xxxxxxxx Xxxxxxxx Xxxx XXX00000
024 663 018 Xxx 0 xx Xxxxxxxx 0, 0, & 0 Xxxxxx 00 & 11 and District Xxx 000
Xxxxxxxxx Xxxxxxxx and of District Lots 141 and 000 Xxxxxxxx
Xxxxxxxx Xxxx XXX00000
024 663 034 Xxx 0 xx Xxxxxxxx 0, 0 & 0 Xxxxx 00 Xxxx XXX00000
024 663 115 Xxx 0 Xxxxxxx 0 Xxxxxx 00 and 00 Xxxxxxxxx Xxxxxxxx Xxxx XXX00000
(formerly PACIFICA)
Vancouver Land Title Office
000-000-000 District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx Except Lot A2
(Reference Plan 490)
000-000-000 Block 46, Except those portions included in Plans 8519, 10829,
Reference Plan 3573 and Explanatory Plan 6151 and Plans 12506 and
14689 District Xxx 000 Xxxx 0000
000-000-000 Xxxxx 00 Xxxxxxxx Xxx 450 Plan 8096
000-000-000 District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx
000-000-000 District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx
000-000-000 District Xxx 0000, Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx Except Part
in Reference Plan 2267
000-000-000 District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx
000-000-000 Lot A2 (Reference Plan 490) District Lot 3091 Group 1
New Westminster District
000-000-000 Xxx 0 Xxxxx 00 Xxxxxxxx Xxx 000 Plan 6606
000-000-000 District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx
000-000-000 Block 43, Except those portions in Plans 12273 and 14778
Explanatory Plans 5457 and 7624, District Xxx 000 Xxxx 0000
000-000-000 Xxxxx 00 Xxxxxxxx Xxx 450 Plan 8096
000-000-000 District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx
000-000-000 Xxx 0 Xxxxx 0 Xxxxxxxx Xxx 000 Xxxx 4533 010-865-349 Xxx 00 Xxxxx
00 Xxxxxxxx Xxx 450 Plan 4533
000-000-000 Block 58 District Lot 450 Plan 8096
000-000-000 Block 55 Except Portions in Plans 13475, 14965 and 16963, District
Xxx 000, Xxxx 0000
000-000-000 Xxxxx 00 Xxxxxxxx Xxx 1901A Plan 8096
000-000-000 Xxxxx 00 Xxxxxxxx Xxx 0000X Plan 8096
000-000-000 Lot 8, Except Part in Reference Plan 5142 and Except Part in
Explanatory Plan 3085 Block 13 District Lot 450 Plan 6606
000-000-000 Xxx 00 Xxxxx 00 Xxxxxxxx Xxx 450 Plan 6606
000-000-000 Xxx 00 Xxxxx 00 Xxxxxxxx Xxx 000 Xxxx 0000
- 0 -
000-000-000 Xxx 0 Xxxxx 0 Xxxxxxxx Xxx 000 Xxxx 4533
000-000-000 Xxx 0 Xxxxx 00 Xxxxxxxx Xxx 450 Plan 6606
000-000-000 Block 37 (Explanatory Plan 4343) Except Part in Plan 13855,
District Lot 450, Plan 8096
000-000-000 Xxx 0 Xxxxx 00 Xxxxxxxx Xxx 450 Plan 6606
(formerly PACIFICA)
Victoria Land Title Office
000-000-000 Xxx 0, Xxxxxxxx Xxx 0, Xxxxxxx Xxxxxxxx, Plan 15070, Except Part
in Plans 31593, 51178 and VIP67137
000-000-000 Xxx X, Xxxxxxxx Xxxx 000 and 196 and Block 000, Xxxxxxx Xxxxxxxx,
Xxxx XXX00000, Except Part in Plan VIP68610
000-000-000 That Part of District Lot 61, Alberni District, Outlined in Red on
Plan 462 RW
000-000-000 Xxx X Xxxxxxxx Xxx 0 Xxxxxxx Xxxxxxxx and Part of the Bed of the
Public Harbour of Alberni Plan VIP69746
000-000-000 Xxxxxxxx Xxx 000, Xxxxxxx Xxxxxxxx
000-000-000 District Xxx 000, Xxxxxxx Xxxxxxxx, Xxxxxxxxxx 0.00 Xxxxx more or
less
000-000-000 Xxxxxxxx Xxx 000, Xxxxxxx Xxxxxxxx
000-000-000 That Part of District Lot 141, Alberni District, Outlined in Red
on Plan 487 RW
000-000-000 That Part of Xxx 0, Xxxxxxxx Xxxx 00 xxx 000, Xxxxxxx Xxxxxxxx,
Plan 15961 Lying to the East of Plan 487 RW
000-000-000 That Part of Parcel A (DD 3333N) of District Lot 81, Alberni
District, Shown Outlined in Red on Plan 890 RW
000-000-000 Xxx X, Xxxxxxxx Xxx 0, Xxxxxxx Xxxxxxxx, Xxxx 00000
000-000-000 That Part of District Lot 1, Alberni District, Shown Outlined in
Red on Plan 1186R
000-000-000 That Part of District Lot 105, Alberni District, Outlined in Red
on Plan 471 RW, Except Part in Plan 33608
000-000-000 That Part of District Lot 105, Alberni District, Outlined in Red
on Plan 890 RW, Except Part in Plan 33608
000-000-000 That Part of District Lot 81, Alberni District, Outlined in Red on
Plan 479 RW
000-000-000 That Part of District Lot 61, Alberni District, Outlined in Red on
Plan 889 RW
000-000-000 That Part of District Lot 81, Alberni District, Shown Outlined in
Red on Plan 890 RW, Except Part in Parcel A (DD 3333N), and Except
Part in Plan 2192
000-000-000 That Part of District Lot 81, Alberni District, Outlined in Red on
Plan 492 RW
000-000-000 That Part of District Lot 127, Alberni District, Outlined in Red
on Plan 472 RW
000-000-000 That Part of Parcel C (XX 00000X), Xxxxxxxx Lot 85, Alberni
District, Shown Outlined in Red on Plan 889 RW, Except that Part
in Plan VIP56579
000-000-000 That Part of Parcel A (DD 3333N) of District Lot 81, Alberni
District, Outlined in Red on Plan 478 RW
000-000-000 Those Parts of Parcel C (XX 00000X), Xxxxxxxx Lot 85, Alberni
District, Shown Outlined in Red on Plan 486 RW, Except that Part
in Plan VIP56579
000-000-000 That Part of Parcel C (DD 20890N) of District Lot 86, Alberni
District, Outlined in Red on Plan 464 RW
000-000-000 That Part of Parcel D (DD 526N) of District Lot 86, Alberni
District, Outlined in Red on Plan 464 RW
000-000-000 Xxx 0 Xxxxxxxx Xxx 0 Xxxxxxx Xxxxxxxx Xxxx XXX00000 See Plan for
Limited Access - Access by Water Only
000-000-000 That Part of District Lot 127, Alberni District, Shown Outlined in
Red on Plan 890 RW
000-000-000 Lot A District Lot 1 and Part of the Bed of Public Harbour of
Alberni Xxxxxxx Xxxxxxxx Xxxx XXX00000
000-000-000 That Part of Parcel D (DD 526N) of District Xxx 00, Xxxxxxx
Xxxxxxxx, Included in Plan 889 RW
000-000-000 That Part of Parcel C (DD 20890N) of District Xxx 00, Xxxxxxx
Xxxxxxxx, Included in Xxxx 000 XX
- 0 -
Xxxx Xxxxxxx Waterlots
(H2565) That Portion of the bed of Port Alberni Harbour adjacent to Hoik
Island, Alberni District, Vancouver Island, Province of British
Columbia, as shown outlined in red on an Explanatory Plan of Lease
#152 prepared by Messrs. Acres & Xxxxxxx B.C.L.S. file # 9624 and
certified correct on April 13, 1988, containing in the aggregate
15.549 hectares (38.42 Acres) more or less
(H1305, Part of the bed of Port Alberni Harbour, commencing at the most
Lease 1305) southerly corner of Lease number One Hundred Forty-Nine (149) in
Port Alberni Harbour; thence south seven hundred fifty (750) feet;
thence west nine hundred (900) feet; thence north nine hundred
(900) feet; thence east eight hundred fifteen and nine tenths
(815.9) feet more or less to an intersection with the
southwesterly boundary of the said Lease number One Hundred
Forty-Nine (149); thence southeasterly and following the said
southwesterly boundary one hundred seventy-one and ninety-seven
hundredths (171.97) feet more or less to the point of
commencement. The whole of the hereinbefore described parcel
contains eighteen and forty-five hundredths (18.45) acres, be the
same more or less, and is shown outlined in red colour on a plan
prepared by Xxxxxxx Xxxxxxx Xxxxx, British Columbia Land Surveyor,
sworn on the twenty-ninth (29th) day of December 1965
(H1140, Lot 280-G, 27.00 acres in size; Lot 292-G, 33.54 acres in size;
H1301, Lot 293-G, 14.75 in size; Lot 278-G, 45.40 acres in size and Lot
H1302, 279-G, 18.00 acres in size; all of Xxxxxxx Xxxxxxxx
X0000,
H1764)
N/A That strip of land lying between two lines commencing at a point
on the easterly boundary of Xxx 0, Xxxxxxx Xxxxxxxx, distant
nineteen hundred and forty-five and four tenths feet (1945.4 ft.)
south and three hundred and twenty-one and five tenths feet (321.5
ft.) east from the northwest corner thereof, thence south
sixty-seven degrees, twenty minutes east (S67 DEG. 20'E) a
distance of eight hundred and seventy and eight tenths feet (870.8
ft.) more or less, to the easterly bank of the Somass River
(H1151) Xxx 000, Xxxxxxx Xxxxxxxx, and more particularly described by a
British Columbia Land Survey completed on December 10, 1963
(H1152) Xxx 000, Xxxxxxx Xxxxxxxx, and more particularly described by a
British Columbia Land Survey completed on January 20, 1964
(H1374, A portion of the foreshore and bed of Port Alberni Harbour shown
Lease 137) outlined in red colour on a plan entitled "Plan accompanying
application to the Port Alberni Harbour Commissioners by MacMillan
Xxxxxxx Limited for effluent pipe and power cable easement through
tidal lands and the bed of the Somass River in Port Alberni
Harbour" which said plan was sworn to by Xxxxxxx Xxxxxxx Xxxxx,
British Columbia Land Surveyor, on the 10th day of July in the
year of 1970, containing in the aggregate Seventy Four/One
Hundredths (.74) acres (.2995 ha.) more or less
- 8 -
(H1375, That portion covered by the waters of the Alberni Inlet commencing
Lease 135 at a point South Twelve degrees fifty-four minutes forty seconds
and 135A) East (12(0) 54' 40" E) two hundred thirty-six and four tenths
(236.40) feet from the most westerly corner of the fourteen and
six hundredths (14.06) acre parcel outlined in red on Land
Registry Office Plan one thousand six hundred and eighty-four
(1684) R; thence South eighty-three degrees thirty-eight minutes
twenty seconds East (S 83(0) 38' 20" E) two hundred sixty-six and
two tenths (266.20) feet; thence South forty-eight degrees
fifty-nine minutes thirty seconds East (S 48(0) 59' 30" E) seven
hundred fifty (750) feet; thence South thirty-nine degrees
thirty-two minutes twenty seconds East (S 39(0) 32" 20" E) one
hundred eighty-two and twenty-seven hundredths (182.27) feet;
thence on a tangential circular curve to the right having a radius
of one hundred thirty-nine and two tenths (139.20) feet, a
distance of one hundred ninety-one and four hundredths (191.04)
feet; thence South thirty-nine degrees five minutes forty seconds
West (S 39(0) 05' 40" W) one thousand eighty-one and fifty-three
hundredths (1081.53) feet; thence on a tangential circular curve
to the right having a radius of two hundred twenty-four and
thirty-two hundredths (224.32) feet, a distance of three hundred
fifty-two and forty-two hundredths (352.42) feet; thence North
fifty degrees four minutes thirty seconds West (N 50(0) 04' 30" W)
nine hundred twenty-five and seventy-four hundredths (925.74)
feet; thence on a tangential circular curve to the right having a
radius of one hundred twenty-four and forty-four hundredths
(124.44) feet, a distance of one hundred seventy-two and two
hundredths (172.02) feet; thence North twenty-nine degrees seven
minutes forty seconds East (N 29(0) 07' 40" E) one hundred
sixty-six and three hundredths (166.03) feet; thence North
forty-five degrees twenty minutes East (N 45(0) 20' E) four
hundred seventy and forty-five hundredths (470.45) feet; thence
north thirty-seven degrees fifty-three minutes, forty seconds East
(N 37(0) 53' 40" E) six hundred twelve and nine hundredths
(612.09) feet, more or less to the point of commencement,
containing in the aggregate 35.8 acres (14.50 ha.) more or less
(Rockfill) Portion of the bed of the Port Alberni Harbour formerly covered by
water, now filled, shown outlined in red on a plan entitled "Plan
to Accompany Application" by MacMillan Xxxxxxx Limited for lease
of part of the bed of Port Alberni Harbour, which said plan was
sworn to by Xxxxxxx Xxxxxxx Xxxxx, British Columbia Land Surveyor,
on the 16th day of December, 1970
(H1671, Those certain parcels or tracts of land situate lying and being in
Lease 109) the bed of Alberni Harbour and consisting of strips of said bed
lying between two lines drawn parallel to, and perpendicularly
distant 25 feet from and on opposite sides of, a centre line and
terminated by high water xxxx, said centre line being more
particularly described as follows:
A. Commencing at a point 290.45 feet north of the southerly
boundary of Parcel A of Xxxx 0 xxx 0 (X.X. 00000X), Xxxxxxx
District, and 1614.88 feet on bearing N 85(0) 34' E from the
southwest corner of said Parcel A; thence S 73(0) 38' E 419.3
feet, said strip of land containing 0.481 acres more or less
B. Commencing at a point 101.3 feet south of the southerly
boundary of Parcel A of Xxxx 0 xxx 0 (X.X. 00000X), Xxxxxxx
District, and 2673.74 feet on bearing N 85(0) 34' E from the
southwest corner of said Parcel A; thence S 73(0) 38' E 231.8
feet, said strip of land containing 0.276 acres more or less
C. Commencing at a point 251.5 feet south of the southerly
boundary of Parcel A of Xxxx 0 xxx 0 (X.X. 00000X), Xxxxxxx
District, and 3059.0 feet on bearing N 85(0) 34 'E from the
southwest corner of said Parcel A; thence S 67(0) 20' E 168.4
feet, said strip of land containing 0.193 acres more or less
- 9 -
(H4234) That portion of the bed of Port Alberni Harbour adjacent to Hoik
Island, Alberni District, Vancouver Island, Province of British
Columbia, as shown outlined in red on Plan of Survey of Lease
#144-1 (being a subdivision of Lease Lot 144) Bed of Port Alberni
Harbour, British Columbia prepared by Xxxxxxx Xxxxx Xxxxxx and
certified correct on April 8, 1998, containing in the aggregate
53.627 acres (21.7 hectares) more or less
(H1304) That portion of the bed of Port Alberni Harbour covered by water,
which said portion is shown as "Lease 132, Amended Area,
containing 2.58 Acres 1.045 ha.), and outlined in red colour on a
plan entitled "Plan of Amendments to Leases 118, 119 and 132,
within Port Alberni Federal Harbour, Alberni District, B.C." which
said plan was certified correct by X.X. Xxxxx, British Columbia
Land Surveyor, on December 16, 1970
Xxxxxx River Waterlots
(H1276) District Lots 4071, 4072, 5922, 5923, 6071, 6174 and 6237A, Group
0 Xxx Xxxxxxxxxxx Xxxxxxxx containing a total of 69.70 hectares
(H1288) District Xxx 0000 xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx
containing 22.95 hectares
(H1367) District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx, containing
50.59 hectares
(H1287) District Xxx 0000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx, containing
18.7 hectares
Leased:
REAL PROPERTY LEASES
PID LEGAL DESCRIPTION
000-000-000 District Xxx 000, Xxxxx 00 (EP9962), Plan 000 xxx Xxxxxxx X, X, X
xx xx, Xxxxxxx Xxxxxxxx Xxxxx, 000 Xxxx Xxxxxxx, Xxxxxxxxx
(Originally 81760 Sq. Ft. Floors 7-11 amended numerous times) Head
Lease Bos HQ FCCL
000-000-000 Sections 2 and 3, Chemainus Xxx 0, Xxxxx 00, Xxxx 0000, Xxx
Xxxxxxxxxx Trailer Site, Xxxxx Street, Crofton P&P (Xxxxxxxx
Challenge Canada Limited)
000 000 000 Xxx 0 Xxxxxxxx Xxx 00 and 13 Group 2 and of the Bed of the Fraser
River New Westminster District Plan LMP29318
000 000 000 Lot 1 of the Bed of the Fraser River New Westminster District Plan
76570
004 501 110 Xxx 00 Xxxxxxxx Xxxx 0, 00 and 11 Group 0 Xxx Xxxxxxxxxxx Xxxxxxxx
Xxxx 00000
000-000-000 Xxx 00, Xxxxx 00, Xxxxxxxx Xxx 000, Xxxx 210, 000 Xxxxxxxxx Xxxxxx
(sublease of 5860 sq. ft. on the second floor)
000-000-000 Xxx 00, Xxxxx 00, Xxxxxxxx Xxx 000, Xxxx 210 (see Lot 24 above)
000-000-000 Xxx 00, Xxxxx 00, Xxxxxxxx Xxx 000, Xxxx 210 (see Xxx 00 xxxxx)
000-000-000 Xxxxx 00, Xxxxxxxx Xxx 541, Plan 210, except Plan 18901 and
EP13277 (month to month lease of offices 46 & 47 at 0000-000 Xxxx
Xxxxxxx Xxxxxx, note that the legal description includes all of
Pacific Centre not just offices 46 &47)
NATURE OF BUSINESS: Paper Manufacturing
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia
CAPITAL STOCK HOLDINGS:
------------------------------------------------- ---------------------- ----------------------------------------
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
------------------------------------------------- ---------------------- ----------------------------------------
Elk Falls Pulp and Paper Limited 3 1 common share
- 10 -
------------------------------------------------- ---------------------- ----------------------------------------
Elk Falls Forest Industries Limited 4 1,000 common shares
5 1,699,200 common shares
6 4,500,000 common shares
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx Canada (Japan) Ltd. C No.003 1,000 shares
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx Canada Pulp Operations Limited 6 53,683,253 common shares
7 46,026,332 common shares
8 24,474,668 common shares
9 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx Canada Sales Inc. 7 1,000 common shares
------------------------------------------------- ---------------------- ----------------------------------------
3264904 Canada Limited 3 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
468327 B.C. Ltd. 2-C 2,000 common shares
------------------------------------------------- ---------------------- ----------------------------------------
British Columbia Forest Products Limited 3 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Catalyst Paper Corporation (B.C.) 2 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Catalyst Paper Corporation (Canada) 2 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Crofton Pulp and Paper Limited 9 2 common shares
------------------------------------------------- ---------------------- ----------------------------------------
Echelon Paper Corporation (B.C.) 2 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Echelon Paper Corporation (Canada) 2 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Export Sales Company Limited (formerly 8 10 common shares
Mackenzie Forest Products Limited n/c Dec.11/01)
------------------------------------------------- ---------------------- ----------------------------------------
NSC Holdings (Barbados) Limited 100% of capital stock (details unknown)
------------------------------------------------- ---------------------- ----------------------------------------
NSC Holdings (Philippines) Inc. (unknown) 79,475 common shares
------------------------------------------------- ---------------------- ----------------------------------------
NSCL Holdings Inc. 4 1,000 common stock
------------------------------------------------- ---------------------- ----------------------------------------
Pacifica Poplars Ltd. 8 90,001 common shares
------------------------------------------------- ---------------------- ----------------------------------------
Pacifica Papers Sales Ltd. 4 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Pacifica Papers Kabushiki Kaisha X0001 1,000 shares
------------------------------------------------- ---------------------- ----------------------------------------
NorskeCanada A1 124,070 Class A Units
A3 118,224 Class A Units
A5 84,455 Class A Units
B1 8,317 Class B Units
B3 5,913 Class B Units
------------------------------------------------- ---------------------- ----------------------------------------
Xxxxxx River Energy Inc. 4 50,001 common shares
------------------------------------------------- ---------------------- ----------------------------------------
Xxxxxx River Energy Limited Partnership Not applicable 49.95% interest (no units issued)
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx Canada Finance Limited 3 10 common shares
------------------------------------------------- ---------------------- ----------------------------------------
2. NORSKE XXXX CANADA FINANCE LIMITED
CAPITAL STOCK: Authorized Capital: 10,000 Common Shares without par value
Issued and outstanding Shares: 10 Common Shares
Members: Norske Xxxx Canada Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
P.O. Box 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF
BUSINESS: To borrow funds and lend them on to the Norske Group of Companies
- 11 -
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia
CAPITAL STOCK HOLDINGS: Nil
3. NORSKE XXXX CANADA PULP OPERATIONS LIMITED
CAPITAL STOCK: Authorized capital: 500,000,000 common shares without par value
Issued and outstanding shares: 124,189,254 common shares
Members: Norske Xxxx Canada Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
P.O. Box 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Pulp Manufacturing
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia
CAPITAL STOCK HOLDINGS:
------------------------------------------------- ---------------------- ----------------------------------------
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx Canada Pulp Sales Inc. 3 1 common share
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx Pulp Sales (Japan) Ltd. B No.001 600 shares
------------------------------------------------- ---------------------- ----------------------------------------
Allwin Technical Services Inc. 2 1 common share
4 1,349,999 common shares
5 1,350,000 common shares
------------------------------------------------- ---------------------- ----------------------------------------
NorskeCanada A2 15,444 Class A Units
A4 111,697 Class A Units
A6 25,304 Class A Units
B2 1,683 Class B Units
B4 4,087 Class B Units
------------------------------------------------- ---------------------- ----------------------------------------
4. ELK FALLS PULP AND PAPER LIMITED
CAPITAL STOCK: Authorized capital: 10,000,000 common shares without par value
Issued and outstanding shares: 1 common share
Members: Norske Xxxx Canada Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
P.O. Box 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
REAL PROPERTY:
Owned:
PID: LEGAL DESCRIPTION:
- 12 -
000 849 731 District Xxx 000 (XX 0000000) Xxxxxxx Xxxxxxxx Xxxxxx Part in Plans 14946 and VIP57724
000 849 821 That part of District Xxx 00 Xxxxxxx Xxxxxxxx shown outlined in red on Plan 1374 RW
000 848 905 Lot A DL 68 Sayward District Plan 20538
000 000 000 That part of DL 151 Sayward District shown outlined in red on Plan 1433R
000 000 000 That Part of DL 163 Sayward District shown outlined in red on Plan 1431R
001 233 475 Block B of Lot 1504 Sayward District
001 233 467 Block C of Lot 1504 Sayward District
001 233 459 Block D of Lot 1504, Sayward District
000 848 913 Xxx 0 XX 00 Xxxxxxx Xxxxxxxx Xxxx 00000
000 849 855 That part of DL 52 Sayward District shown outlined in red on Plan 659 RW
000 849 847 That part of DL 67 Sayward District shown outlined in red on Plan 659 RW
000 849 910 District Xxx 00 Xxxxxxx Xxxxxxxx except part in Plans 34604 and 42540
000 848 921 Xxx 0 XX 000 Xxxxxxx Xxxxxxxx Xxxx 16956
000 849 430 District Xxx 000 Xxxxxxx Xxxxxxxx shown outlined in red on Plan 1431R
001 233 432 District Lot 109 Sayward District except Parcel A (DD 285472-I) and those parts in Plans
1373-R, 16956, 19371, 50636 and VIP54479 and VIP64521
001 233 441 Lot 1599 Sayward District except that portion in Plan VIP 64521
000 846 287 Xxxxxxxx Xxx 0 Xxxxxxx Xxxxxxxx except those parts in Plans 19371, 42540, 50636, VIP 64521
and VIP 64522
015 101 231 Amended Bl 24 (See 235568L) DL 313 Plan 827
000 000 000 Lot A (See M51221L) Bl 23 DL 313 Plan 827
Note: Elk Falls Pulp and Paper Limited holds legal title only to the above
properties. Norske Xxxx Canada Limited holds beneficial title.
Leased:
PID: LEGAL DESCRIPTION:
N/A Site Lease XXX #00000, XXX XX XX Sections 1 and 0, X0XX0X
XX00, Xxxx Xxxx Xxxx Loading Site, 14021 Port Xxxx Shore
District of Surrey, Fibre Supply EFFIL (Elk Falls Pulp and
Paper Limited)
NATURE OF BUSINESS: Bare Trustee
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia
CAPITAL STOCK HOLDINGS: Nil
5. NORSKE XXXX CANADA SALES INC.
CAPITAL STOCK: Authorized capital: 10,000 common shares without par value
Issued and outstanding shares: 1,000 common shares
Members: Norske Xxxx Canada Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
P.O. Box 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0 REAL PROPERTY:
Owned: Nil
Leased: Nil
- 13 -
NATURE OF BUSINESS: Pulp and Paper Sales
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia, Alberta
CAPITAL STOCK HOLDINGS: Nil
6. NORSKE XXXX CANADA PULP SALES INC.
CAPITAL STOCK: Authorized capital: 100,000,000 common shares without par value
Issued and outstanding shares: 1 common share
Members: Norske Xxxx Canada Pulp Operations Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
P.O. Box 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Fibre Sales
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia
CAPITAL STOCK HOLDINGS: Nil
7. NORSKE XXXX PULP SALES (JAPAN) LTD.
CAPITAL STOCK: Authorized capital: 800 shares with a par value of (Y)50,000 each
Issued and outstanding shares: 600 shares
Members: Norske Xxxx Canada Pulp Operations Limited
HEAD OFFICE: Ginza Xxxxxx Xxxxxxxx 0X
0-0 Xxxxx 1-chome, Chuo-ku
Tokyo 104-0061, Japan
- 14 -
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Pulp Sales
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
Japan
CAPITAL STOCK HOLDINGS: Nil
8. NORSKE XXXX CANADA (JAPAN) LTD.
(known as Xxxxxxxx Challenge Paper Sales (Japan) Ltd. until 1 August 2001)
CAPITAL STOCK: Authorized capital: 4,000 shares with a par value of(Y)50,000 each
Issued and outstanding shares: 1,000 shares
Members: Norske Xxxx Canada Limited
HEAD OFFICE: Ginza Fujiya Building 6F
0-0 Xxxxx 0-xxxxx, Xxxx-xx
Xxxxx 000-0000, Xxxxx
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Pulp and Paper Sales.
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
Japan
CAPITAL STOCK HOLDINGS: Nil
9. NSCL HOLDINGS INC.
CAPITAL STOCK: Authorized capital: 1,000,000 common stock with a par value of US$1 each
Issued and outstanding shares: 1,000 common stock
Members: Norske Xxxx Canada Limited
HEAD OFFICE: Xxxxx 000, Xxxxxxxxxx Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Holding Company
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
not applicable (holding company)
- 15 -
CAPITAL STOCK HOLDINGS:
------------------------------------------------- ---------------------- ----------------------------------------
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx Canada (USA) Inc. 4 1,000 common stock
------------------------------------------------- ---------------------- ----------------------------------------
Arizona Newsprint Industries Corporation 4 1,000 common stock
------------------------------------------------- ---------------------- ----------------------------------------
NSC Fibre Inc. 2 1,000 common stock
------------------------------------------------- ---------------------- ----------------------------------------
Pacifica Papers US Inc. 7 100 common shares
------------------------------------------------- ---------------------- ----------------------------------------
10. NORSKE XXXX CANADA (USA) INC.
(Known as Norske Xxxx Paper Company until 13 September 2001)
CAPITAL STOCK: Authorized capital: 1,000,000 common shares
Issued and outstanding shares: 1,000 common shares
Member: NSCL Holdings Inc.
HEAD OFFICE: Xxxxx 000, Xxxxxxxxxx Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Pulp and Paper Sales
JURISDICTIONS IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
California, Colorado, Illinois, Washington, Oregon, Alabama, Michigan
CAPITAL STOCK HOLDINGS:
------------------------------------------------- ---------------------- ----------------------------------------
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
------------------------------------------------- ---------------------- ----------------------------------------
Norske Xxxx North America LLC Not applicable 50% equity interest
------------------------------------------------- ---------------------- ----------------------------------------
11. NORSKECANADA
PARTNERSHIP UNITS: Authorized units: Unlimited number of Class A Units and Class B Units
Issued and outstanding units: 479,194 Class A Units and 20,000 Class B Units
Partners: Norske Xxxx Canada Limited and Norske Xxxx Canada Pulp Operations
Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
X.X. Xxx 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X.
X0X 0X0
REAL PROPERTY:
Owned: Nil
- 16 -
Leased:
PID: LEGAL DESCRIPTION:
000-000-000 Section 2, Chemainus Lot A Range 6 and 7, Plan 45436, Gas Monitoring Trailer Site, Xxxxx
Road, Crofton P&P
000-000-000 Sections 12 and 13, Xxx 0, Xxxxx 0, Xxxx 00000, Xxxxxxxx, Gas Monitoring Trailer Site
Located at 0000 Xxxxxx Xxxxxxxx Xxxx, Xxxxxxx X&X
N/A District Xxx 000, XX Xxxx 00, 00, 00, 00, Xxxxx 43, District
Plan 198, 000 Xxxxxx Xxxxxx, Xxxxxxxxx (basement storage
space) Bos FCCL (also contains TWFL historical records)
PROVINCIAL WATER LOT LEASES
Crofton Facility:
N/A W/Lot Lease #102130 - District Lot 107G; Blk D Chemainus (Prev. #13180) Log Booming
& Wharfage (Sublet 15 Dec 1993 Stuart Channel Wharves)
N/A W/Lot Lease #102653 - District Lot 107G; Blk A & B Chemainus
(Prev. #13181) Warehouse & Dock #1 & #2 & Part Stuart Channel
Wharves Dock #3 (.2274 AC. SCW)
N/A W/Lot Lease #101412 - Lot 161; Blk B Cowichan Log Storage, Shipping &
Industrial PT
N/A W/Lot Lease #106051 - DL 565, 676, 2008; Blk E Cowichan (Prev. #101709 & PT 103929)
Log Dumping, Booming, Storage, Scow & Chip Barge Moorage, Industrial Purposes
Elk Falls Facility:
N/A W/Lot Lease #101447 - Blk A Lot 1504; Sayward (Prev. #29554) Xxxxxx Bay Fronting Pulp Mill
Complex
N/A W/Lot Lease #100785 - Xxx 000 xxx Xxx 0000; Xxx X Xxxxxxx Xxxxxx Xxx next to Middle Point
Barge Tie Up & Log Storage (Upland DL 2,26)
FEDERAL WATER LOT LEASES
N/A W/Lot Lease #05020, between the North Fraser Port Authority
(landlord) and Norske Xxxx Canada Limited (tenant), for a Chip
Loading Site Fronting Kent Avenue (0.806 ha.)
N/A W/Lot Lease #E-04-06, between the Fraser River Port Authority
(landlord) and 3264912 Canada Limited (now Norske Xxxx Canada
Pulp Operations Limited), for a Barge Tie-up & Fiber Supply
Loading Area near Port Xxxx (2.248 ha.)
NATURE OF BUSINESS: Operation of pulp and paper manufacturing facilities
JURISDICTION IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS
RECEIVABLE IS LOCATED: British Columbia
CAPITAL STOCK HOLDINGS: Nil
12. PACIFICA PAPERS SALES LTD.
CAPITAL STOCK: Authorized capital: 500,000,000 common shares
Issued and outstanding: 1
Member: Norske Xxxx Canada Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
X.X. Xxx 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
- 17 -
Real Property:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Canadian marketing agent
JURISDICTION IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia
CAPITAL STOCK HOLDINGS: Nil
13. PACIFICA POPLARS LTD.
CAPITAL STOCK: Authorized capital: 100,000 common shares
Issued and outstanding: 90,001
Member: Norske Xxxx Canada Limited
HEAD OFFICE: 0xx Xxxxx, 000 Xxxx Xxxxxxx Street
X.X. Xxx 00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
REAL PROPERTY:
Owned:
PID: LEGAL DESCRIPTION:
000-000-000 Xxx 0, Xxxxxxxx Xxxx 00 xxx 000, Xxxxxxx Xxxxxxxx, Plan VIP64541
000-000-000 Xxx 00, Xxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxx 0000 Except that Part in Plan VIP65075
000-000-000 Xxx 00, Xxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxx 0000
000-000-000 Xxx 00, Xxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxx 0000
000-000-000 District Xxx 000, Xxxxx Xxxxxxxx
000-000-000 Xxx X, Xxxxx 29, Comox District, Plan 3433, Except that
Part thereof Lying to the South of the Southerly
Boundary of Dove Creek Road as said Road is Described in
B.C. Gazette Dated 31.08.1933, Page 1273, and Except
that Part thereof included within the Boundaries of Plan
1551R
000-000-000 The Fractional South West 1/4 of Xxxxxxx 00, Xxxxxxxx 0, Xxxxx
Xxxxxxxx, Xxxx 552G
000-000-000 The Fractional South East 1/4 of Xxxxxxx 00,
Xxxxxxxx 0, Xxxxx Xxxxxxxx, Xxxx 552G
000-000-000 The West 1/2 of the North East 1/4, Section 8, Township 3,
Sayward District, Except the South
West 1/4 of the North East 1/4 of said Section 0,
Xxxxxxxx 0, Xxxxxxx Xxxxxxxx, Xxxxxx Part in Plan 40329
000-000-000 The East 1/2 of the North West 1/4, Section 8, Township 3,
Sayward District, Except Parts Shown Coloured Red and Yellow on Plan 280 RW
- 18 -
PID: LEGAL DESCRIPTION:
000-000-000 Xxx X, Xxxxxxx 00, Xxxxxxxx 0 and Xxx 000, Xxxxxxx Xxxxxxxx, Xxxx XXX00000
000-000-000 Xxx 0 xx Xxxxxxxx Xxxx 0 0X 0 xxx 00 Xxxxxxx Xxxxxxxx Plan VIP72153
000-000-000 Xxx 0 xx Xxxxxxxx Xxxx 0X xxx 0 Xxxxxxx Xxxxxxxx Plan VIP72153
000-000-000 Xxx X, Xxxxxxxx Xxx 00, Xxxxxxx Xxxxxxxx, Xxxx 00000
000-000-000 Block 36, Except 9(A) Those Portions in Plans 8230, 8368, 8765,
9240, 10196, 12203, 12273, 13678, 13855, 13904, 14438, 14728, 14857,
15509 and 15920 (B) Part outlined green on Explanatory Plan 3126 (C)
Parcel 7 (Reference Plan 5651) and Part subdivided by Plan LMP25234
District Xxx 000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx Xxxx 8096
000-000-000 Xxx X Xxxxxxxx Xxx 000 Xxxxx 0 Xxx Xxxxxxxxxxx Xxxxxxxx Plan LMP25234
000-000-000 The Closed Part of the Xxxxxx River-Westview Road Shown Outlined in Green on Reference Plan
0000 Xxxxx 00 Xxxxxxxx Xxx 000 Plan 8096
000-000-000 Block 56, Except Part in Plan 12767, District Lot 450 Plan 8096
Leased:
REAL PROPERTY LEASES
Lease from Xxxxx & Xxxxx Xxxxxxx of Xxx X, Xxxxx 00, Xxxxx Xxxxxxxx,
Xxxx XXX00000 Lease from Xxxxxxx X. Hockey & Xxxxx X. Hockey of Xxx 00,
Xxxxxxxx Xxx 0, Xxxxxxx Xxxxxxxx, Plan 1981
Lease from Xxxxxx X. Xxxxxx of Part of Xxx 0, Xxxxxxxx Xxx 000, Xxxx
00000 Xxxxxxx Xxxx District
Lease from Ed & Xxxxxx Xxx of Part of Xxx 0, Xxxxxxx 00, Xxxxxxxx 0,
Xxxxx Xxxxxxxx, Xxxx 00000 Lease from Xxxx & Xxxxxxxx Xxxxxxxxxxx of
Part of Xxx 00, Xxxxx 00, Xxxxx Xxxxxxxx, Xxxx 0000,
Except Part in Plan 38715 as shown in red on the attached plan and
comprising of 29.8 acres (2.06 HA), more or less
Lease from Xxxxx Xxxxxxxx of that Part of District Xxx 00, Xxxxxxx
Xxxxxxxx, except that part included within the boundaries of Plan
13475, containing approximately 13.32 HA (Northern Portion)
Lease from Xxxxx Xxxxxxxx of that Part of District Xxx 00, Xxxxxxx
Xxxxxxxx, except that part included within the boundaries of Plan
13475, containing approximately 16.6 HA (Southern Portion)
Lease from XXXX Enterprises Ltd. of that Part of the South 1/2 of
District Xxx 00, Xxxxxxx Xxxxxxxx,
Xxxxxx Amended Parcel B (DD14401N) and Except the R/W of the E&N
Railway Company shown colored red on plan deposited DD9088F and except
that Part in Plan 13475, containing approximately 6.38HA
Lease from Xxxxx Xxxxx Xxxx & Hachhatter Sing Xxxx of Part of Xxxxxxx
0, Xxxxxxxx 00, Xxx Xxxxxxxxxxx Xxxxxxxx Xxxx LMP 1570 (H4018)
Lease from Xxxxxxxx Gardens Ltd. of that Part of Lot 1 Except: Part
Dedicated Road on Plan 69971, Section 00, Xxxxxxxx 00, Xxx Xxxxxxxxxxx
Xxxxxxxx Xxxx 0000 as outlined in red on the attached plan and
comprising an area of 35 acres (22.5 HA), more or less
Lease from Gurdarshen Singh of Part of the West Half of the North East
Quarter Section 00, Xxxxxxxx 00, Xxx Xxxxxxxxxxx Xxxxxxxx
Lease from Xxxxxxxx Xxxxxx Xxxxx and Xxxxxxxxxx Xxxxx of Part of the
North Half of DL 8, Group 1 Except 1 PCL C (Plan B427) 2. Pt of Plan
6465, 3. PCL "B" (Ref Plan 11261), 4. PT PCL "14" Plan 8809, 5. PT of
Plan 27426A, 6 PT Subdiv by Pl 11421, 7. PT in Expl Plan 11824, 0.XX
Subd by Plan 36609, 9. Part on Xxx Xx 00000, 10. Part Subd by Plan
52465, Yale Div, Yale Dist, Containing 45 Acres more or less
Lease from Xxxxxx & Xxxxxx Xxxxxx of Part of Xxx 0, Xxxxxxx 00 xxx
Xxxxxxx 00, Xxxxxxxx 4, Range 27, West of the 0xx Xxxxxxxx, Xxx
Xxxxxxxxxxx Xxxxxxxx Xxxx 00000, and Part of Xxx 0, Xxxxxxxx Xxx 00
- 19 -
"A", Group 1, Yale Division of Yale District, Plan 15730 as shown in
red on the attached print and comprising 35 acres (14.16 HA) more or
less
Lease from Xxxx Xxxxxxx Xxxxxxx of Xxx 0 Xxxxxxx 00 Xxxxxxxx 00
Xxxxxxxxxxx Xxxxxxxx Plan 3529
Lease from Xxxx X. Xxxxxx of Part of Xxx 0 Xxxxxxxx Xxx 0000 Xxxxx 0
Xxx Xxxxxxxxxxx District in West Half of District Lot 4168 Except Plan
7623 Group 0 Xxx Xxxxxxxxxxx Xxxxxxxx
Lease from Mrs. Pluck of Xxx 00, Xxxxxxxx Xxx. 0, Xxxxxxx Xxxxxxxx,
Plan 1981
Lease from Xx. Xxxxxx of part of Xxx 00, Xxxxxxxx Xxx 0, Xxxxxxx
Xxxxxxxx, Xxxx 1981
NATURE OF BUSINESS: Canadian poplar tree plantation business
JURISDICTION IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
British Columbia
CAPITAL STOCK HOLDINGS: Nil
14. PACIFICA PAPERS KABUSHIKI KAISHA
CAPITAL STOCK: Authorized capital: 2,000 shares with par value of (Y)50,000 per share
Issued and outstanding: 1,000
Member: Norske Xxxx Canada Limited
HEAD OFFICE: Ginza Fujiya Building 6F
0-0 Xxxxx 0-xxxxx, Xxxx-xx
Xxxxx 000-0000, Xxxxx
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: Selling agent in Japan
JURISDICTION IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
Japan
CAPITAL STOCK HOLDINGS: Nil
15. PACIFICA PAPERS US INC.
CAPITAL STOCK: Authorized capital: 1,000 common shares
Issued and outstanding: 100
Member: NSCL Holdings Inc.
HEAD OFFICE: The Corporation Trust Company
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 XXX
CHIEF EXECUTIVE OFFICE: Xxxxx 000, Xxxxxxxxxx Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
- 20 -
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: U.S. holding company
JURISDICTION IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
Washington
CAPITAL STOCK HOLDINGS:
------------------------------------------------- ---------------------- ----------------------------------------
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
------------------------------------------------- ---------------------- ----------------------------------------
Pacifica Papers Sales Inc. 8 100 common shares
------------------------------------------------- ---------------------- ----------------------------------------
Pacifica Poplars Inc. 11 850 shares of common stock
------------------------------------------------- ---------------------- ----------------------------------------
16. PACIFICA PAPERS SALES INC.
CAPITAL STOCK: Authorized capital: 1,000 common shares
Issued and outstanding: 100
Member: Pacifica Papers US Inc.
HEAD OFFICE: The Corporation Trust Company
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 XXX
CHIEF EXECUTIVE OFFICE: Xxxxx 000, Xxxxxxxxxx Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
REAL PROPERTY:
Owned: Nil
Leased: Nil
NATURE OF BUSINESS: U.S. marketing agent
JURISDICTION IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS RECEIVABLE IS LOCATED:
Washington
CAPITAL STOCK HOLDINGS: Nil
17. PACIFICA POPLARS INC.
CAPITAL STOCK: Authorized capital: 1,000 shares of common stock
Issued and outstanding: 850
Member: Pacifica Papers US Inc.
HEAD OFFICE: The Corporation Trust Company
Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 XXX
- 21 -
CHIEF EXECUTIVE OFFICE: Xxxxx 000, Xxxxxxxxxx Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
REAL PROPERTY:
Owned:
Property Record TITLE NO. LEGAL DESCRIPTION
& FILE NOS.
--------------- ---------- -----------------
F-4098 9610110803 N/E1/4& portion of the E1/2of the NW1/4of Section 00, Xxxxxxxx 00X, Xxxxx 6 E.W.M.,
4101-01 King County, except a portion of the NE1/4Section 00, Xxxxxxxx 00X, Xxxxx 0 Xxxx X.X.
F-4118 9701140877 The S1/2of the SE1/4and that portion of the SE1/4of the SW 1/4 , Section 00, Xxxxxxxx
0000-00 00X, Xxxxx 6 East, X.X., King County.
F-4114 0000000000 That portion of the N1/2of the NW1/4and portion of the NW1/4of the NE1/4of Section 14,
0000-00 Xxxxxxxx 00X, Xxxxx 0 Xxxx, X.X., Xxxx Xxxxxx.
F-4051 9601030073 Parcel A, part of the east 6 acres of the SW1/4of the SE1/4of Section 6, lying south &
4301-01 west of Conner Slough, and part of Gov't Lot 2, lying south & west of Conner Slough,
Section 7, all within XXX 00X, Xxxxx 0 Xxxx xx X.X., (See deed for full legal).
F-4080 9604100060 Part of the SW1/4of the NE1/4and the W1/2of the SE1/4of the NE1/4, all in Section 2,
0000-00 Xxxxxxxx 00X, Xxxxx 4 E.W.M., except County Road R/W's. Also, part of the N1/2of the
XX 0/0 xx Xxxxxxx 0, XXX 00X, Xxxxx 4 E.W.M., Skagit County.
F-4145 9703140056 That portion of Xxx 0, xx Xxxxx Xxxx Xx. 00-00, lying north of the County Road known as
0000-00 Xxx Xxxx Xxxx previously known as Xxxx Xxxxxxx Xxxx, Xxxxxxxx 00X, Xxxxx 0 Xxxx, X.X.
(See deed for full legal description).
F-4084 9606040120 The S1/2of the NW1/4and the N1/2of the SW1/4in Sec. 0, Xxxxxxxx 00X, Xxxxx 3 E, X.X.,
4304-01 except roads and drainage ditch rights-of-way, and except that portion, in any, lying
south of the north line of the south 80 acres of said SW 1/4, Section 4, Plan 9.
F-4088 9608120155 Parcel "A" the E1/2of the SE1/4of the NE1/4of Section 0, Xxxxxxxx 00X, Xxxxx 4 E.W.M.,
4305-01 except County Road & Parcel "B" the portion of the W1/2of the SW1/4of the NW1/4& that
portion of the SW 1/4 of Section 0, Xxxxxxxx 00X, Xxxxx 0X.
F-4117 9709090008 Portions of Government Xxxx 0 & 0 xx Xxxxxxx 0, Xxxxxxxx 00X, Xxxxx 3 East, X.X.,
4306-01 Government Lot 2 and portion of Government Xxx 0, xx Xxxxxxx 0, Xxxxxxxx 00X, Xxxxx 2 East,
X.X., and portion of the Xxxxx 0/0, Xxxxxxx 00, Xxxxxxxx 00X, Xxxxx.
F-4127 9710100109 Tract 2 of Skagit County Short Plat No. 97-0056 approved
4307-01 September 8, 1997, recorded September 17, 1997, in Volume 13, page 36-38
of Short Plats, under auditor's file No. 9709170034, being a portion of Northeast
1/4 of Section 00, Xxxxxxxx 00X, Xxxxx 2 East; except that portion described by quit
claim deed dated the 1st of June, 1999.
F-4040 9508290366 Parcel A - Xxx 00, XXX 00X, Xxxxx 0 X,X.X. and Parcel B - Xxx 00, XXX 00X, Xxxxx 0 X,
0000-00 X.X. (see deed for full legal).
F-4041 9508020290 Those portions of Government Xxxx 0 & 0 xx Xxx 00; the NW 1/4of Government Lots 3 & 4
4502-01 and the N 1/2of the S 1/2of Sec 14; the E 1/2of Sec 15; and Government Lot 7 of Section
10; all in Xxxxxxxx 00X, Xxxxx 0 Xxxx, X.X., Xxxxxxxxx Xxxxxx (see deed for details).
F-4034 9506290020 The NW 1/4of the SW 1/4, Xxxxxxx 00, xxxxx xxxx xx XX 000 (Xxxxxx X); Government Xxx 0,
0000-00 Xxxxxxx 00 (Xxxxxx X); Government Xxx 0, Xxxxxxx 00 (Xxxxxx C), all within Xxxxxxxx
00X, Xxxxx 0 Xxxx, X.X., all situate in the County of Snohomish. (see deed for full legal).
F-4052 9512280191 Parcel A being part of Xxxxxxx 00, Xxxxxxxx 00X, Xxxxx 0 Xxxx, X.X.; Parcel B being
4504-01 part of the NW 1/4of the SW 1/4of Xxxxxxx 00, Xxxxxxxx 00X, Xxxxx 0 Xxxx, X.X.; and
Parcel C being Lot 5, Stetcher acre tracts,all situate within Snohomish County.
- 22 -
Property Record TITLE NO. LEGAL DESCRIPTION
& FILE NOS.
--------------- ---------- -----------------
F-4055 9512050402 Parcel A, being the E 3/4ths of the NE 1/4 of the SW 1/4; & the E 1/2 of the E 1/2 of the
4505-01 SE 1/4 of the SW 1/4 of Sec 15 Parcel B, being, the SW 1/4 of the SE 1/4 of Sec 15, Parcel C,
being a 20' wide road easement; Parcel D, being part of the NE 1/4 of Section 22, TWP 28
F-4081 9602160309 That portion of Government Xxxx 0 & 00 xxx XX 0/0 xx xxx XX 0/0, Xxx 0; and portions of the
4506-01 NE 1/4 and the NW 1/4, N 1/2 of the NE 1/4, Sec 1/4 of the XX 0/0, xxx XX 0/0 xx xxx XX 0/0,
Xxx 0; all in XXX 00X, Xxx 0 X.X.X. Xxxxxxxxx Xxxxxx.
F-4083 9604300349 Part of the NE 1/4of the NW 1/4 of Sec 16 and part of the SW 1/4 of the NW 1/4 of Xxx 00,
0000-00 XXX 00X, Xxx 0 E. W.M.; also Lot 1, Stetcher acre tracts know as Xxx 0 xx XXX 00000,
situated in Snohomish County.
F-4086 0000000000 SW 1/4 of the SW 1/4, W 3/4 of the SE 1/4 of the SW 1/4, W 1/2 of the W 1/2 of the NE 1/4 of
4508-01 the SW 1/4, all in Section 15, the S 1/2 of the SE 1/4 of Sec 16, the N 1/2 of the N 1/2 of
the NE 1/4 of the NE 1/4 of Section 21; Township 2.
F-4087 9606120171 All that portion of the north half of the NE 1/4 of Section 00, Xxxxxxxx 00X, Xxxxx 6
4509-01 East, X.X., lying westerly of Xxxxx Xxxx Xx. 0, except the NW corner of the NE 1/4 of the
NW 1/4; thence east 40 feet; thence south 81 feet; thence west 540 feet.
F-4093 0000000000 Beginning at the NW corner of the NE 1/4 of the XX 0/0 xx Xxx 00, XXX 00X, Xxx 6 E. W.M.;
4510-01 thence north along the West line of the SE 1/4 of the NE 1/4 of said Sec 19 to the
intersection with the southerly right of way line of the Puget Sound Traction Ligh.
F-4091 9607150124 The SE 1/4 of the SW 1/4 of the NE 1/4 of Section 00, Xxxxxxxx 00X, Xxxxx 6 E., X.X., less
0000-00 Xxxxx Xxxxxxx 0. Together with that portion of the S 1/2 of the SE 1/4 of the NW 1/4 of said
Section 27, lying easterly of State Highway 2 (see attached F).
F-4090 9607150179 Parcels A, B & C, Snohomish County, described as the N 1/2 of the SE 1/4 of the NW 1/4; all
4512-01 that portion of the N 1/2 of the S 1/2 of the NE 1/4; all in Section 00, Xxxxxxxx 00X, Xxxxx
6 E.W.M., (see title for full legal).
F-4092 9609130400 Parcel "A" in Gov't Lot 5; Parcel "B-1" in the SE 1/4 of the SE 1/4; Parcel "B-2" the south
4513-01 25' of SE 1/4 of the SE 1/4 plus the south 25' of the east 165 feet of the SW 1/4 of the
SE 1/4 all located in Xxx 00, XXX 00 X, Xxx 0 E.W.M.; Parcel "B-3" part of Gov't Lot.
F-4094 9609130263 That portion of the SE 1/4 of the SW 1/4 of Sec 8, and that portion of the NE 1/4 of the
4514-01 NW 1/4 of Xxx 00, XXX 00 X, Xxx 0 E.W.M., in Snohomish County (see title for full legal).
F-4101 9610220418 Parcel A: portion of the X 0/0 xx Xxx 0, XXX 00X, Xxx 0X, X.X.; Parcel B: portion of the
0000-00 XX 0/0 of Xxx 0, XXX 00X, Xxx 0X, X.X. & Parcel C: portion of Gov't Xxx 0, Xxx 0 xxx X 0/0
xx XX 0/0 of Xxx 0, XXX 00X, Xxx 0X, X.X. with exceptions
F-4097 9611150060 The NE 1/4 of the SW 1/4 of Xxx 00, XXX 00X, Xxx 0 E.W.M., except the south 30 feet, the
4516-01 north 20 feet and the west 10 feet and hereof; also except that portion lying within
Cherry Avenue.
F-4134 9711180246 Parcel A: the W 1/2 of the SW 1/4 of Sec 22; Parcel B: the SE 1/4 of the SE 1/4 and the
4518-01 E 1/2 of the NE 1/4 of the SE 1/4 of Sec 21; Parcel C: the NE 1/4 of the NE 1/4 of Sec 28; all
in XXX 00X, Xxx 0 X, X.X., with the exceptions (see title for full legal).
F-4047 951011032 A tract of land in Section 0, Xxxxxxxx 00X, Xxxxx 0X of X.X. described as follows:
4701-01 bounded on north and the west by the Old Nooksack River as meandered in 1859; on the
east by Ferndale Road, and on the south by Marine Drive, less roads, situate in Whatc.
F-4026 950505035 The north half of the south half of the NW quarter and the SE quarter of the SE quarter
4702-01 of the NW quarter of Section 00, Xxxxxxxx 00X, Xxxxx 5 East of the X.X. except railroad
right of way and except State Route No. 9.
F-4032 950512020 The E 1/2 of the SW 1/4; the NW 1/4 of the SW 1/4 and the N 1/2 of the SW 1/4 of Section 8,
4703-01 Township 37N, Range 5 East of the X.X. (see title for full legal).
F-4033 950615017 The SW 1/4 of the SW 1/4 of Section 20, Township 38N, Range 5 East of the X.X. Whatcom
4704-01 County (for exceptions see full legal on deed).
F-4035 950609089 The NW 1/4 of the SE 1/4 of Section 19, less the west 25' thereof; the south 417' of the
- 23 -
Property Record TITLE NO. LEGAL DESCRIPTION
& FILE NOS.
--------------- ---------- -----------------
4705-1 east 417' of the NE 1/4 of the SE 1/4 of Section 19, less road; the SE 1/4 of the SE 1/4 of
Section 19 less roads; the SW 1/4 of the SE 1/4 of Section 19
F-4042 951019081 Lot 6, within the NW 1/4 of Section 31, Township 39N, Range 2 East of the X.X. (see Deed
4706-01 for full legal).
F-4044 951031158 Beginning at a point 561' south of the NE corner of the SE 1/4 of the NW 1/4, Section 1,
0000-00 Xxxxxxxx 00X, Xxxxx 0 Xxxx, X.X., Xxxxxxxxxx thence south 561', thence west 1320',
thence north 561', thence east 1320', to point of beginning
F-4045 960327151 The NW 1/4 of the NE 1/4 of Section 30, TWP 38N, Rng 5E, X.X., except the north 417' of
4708-01 the east 417' thereof; except the north 355' of the west 612' thereof; and except
Strand Road (see deed for full legal description).
F-4046 951004092 The S 1/2 of the N 2/3rds of Government Xxx 0 xx Xxxxxxx 0, Xxxxxxxx 00X, Xxxxx 2 East of
4709-01 X.X., less the road, situate in Whatcom County, State of Washington.
F-4050 951212038 Government Xxx 0, Xxxxxxx 00, Xxxxxxxx 00X, Xxxxx 2 East of X.X., except roads.
4710-01
F-4053 951215105 Parcel A being part of the W 1/2 of the SW 1/4 of the SW 1/4 of Section 16; also the SE 1/4 of
4711-01 the SE 1/4 of Section 17; Parcel B being part of the NE 1/4 of the NE 1/4, Section 20, all
within Xxxxxxxx 00X, Xxxxx 0 Xxxx X.X., Xxxxxxx Xxxxxx (see deed).
F-4124 1970800864 Parcel A, a strip of land 30' in width across the south end of the SE1/4of the SE 1/4 of
4711-06 Section 17; and Parcel B, a strip of land 30' in width across the south end of the W 1/2
of the SW 1/4 of the SW 1/4 of Section 16; all in Township 37N.
F-4054 960105050 The S 1/3 of Government Xxx 0, Xxxxxxx 0, Xxxxxxxx 00X, Xxxxx 2 East, of X.X. in
4712-01 Whatcom County, Washington.
F-4057 960313031 The south 60 acres of the west half of thesoutheast quarter of Section 00, Xxxxxxxx 00X,
0000-00 Xxxxx 1 East of X.X., less roads, situate in the County of Whatcom, State of Washington.
F-4082 960415012 Parcel `A'; Government Xxx 0 xx Xxx 00 xxx Xxxxxx `B'; the north 20 acres of the SE 1/4
4714-01 of the SW 1/4 of Sec 31; XXX 00X, Xxx 0 E.W.M., except Xxxxx Road and Slough, situate in
Whatcom County.
F-4095 0000000000 All of Lots 6, 7 and 11 and the SE 1/4 of the XX 0/0 xx Xxx 00, XXX 00X, Xxx 0X, X.X. also
4715-01 a strip of land 15' in width along the westerly bank of the Nooksack River in Lot 6 and
along the 1/4 sec line running east and west in said Sec 32, which forms the North.
F-4096 961015018 All that part of Gov't Xxx 0 xxx xxx XX 0/0 xx xxx XX 0/0, Xxx 0, and the NW 1/4 of the
4716-01 NE 1/4, Xxx 00, XXX 00X, Xxx 0 E.W.M., Whatcom County (see Exhibit "A" for full legal).
F-4125 1970704143 The east 20 acres of the N 1/2 of the SW 1/4 and the S 1/2 of the SW 1/4 of Section 32,
0000-00 Xxxxxxxx 00X, Xxxxx 5 East, X.X. except the R/W for Xxxxx Xxxxx Xx. 0; and that portion
of said South 1/2 of the SW 1/4 lying west of State Route No. 9
F-4143 1980401482 Parcel A: the SW 1/4 of Sec 5; Parcel B: part of Sec 5; Parcel C: Xxxx 00, 00 xxx 00 xx xxx
0000-00 XX 0/0 of the NE 1/4 of Sec 7; Parcel D: the NW 1/4 of the SW 1/4 and the NW 1/4 of Sec 8;
all in Township 38N, Range 2 E. W.M. with exceptions.
F-4144 1980700595 Parcel A: Blocks 9, 10, 19, 20, 21, 28, 29 and 30 "Plat of the Marietta Xxxxxx Xxxxx
0000-00 Xxxxxxx Xxxxxx" and Parcel B: that portion of Xxx 0, XXX 00X, Xxxxx 0 Xxxx of the X.X.
LEASED: Nil
NATURE OF BUSINESS: U.S. poplar tree plantation business
- 24 -
JURISDICTION IN WHICH ITS PROPERTY OTHER THAN ACCOUNTS
RECEIVABLE IS LOCATED: United States
CAPITAL STOCK HOLDINGS: Nil
SCHEDULE G
BORROWING BASE CERTIFICATE
[SEE REFERENCE IN SECTION 1.1.18]
TO: THE LENDERS (as defined in the Credit Agreement referred to below)
AND TO: THE TORONTO-DOMINION BANK, as Agent
----------------- --------------------------------------------------------------
We refer to Section 7.3.1(a) of the credit agreement dated as of
19 July 2002 between Norske Xxxx Canada Limited and others as Restricted
Parties, The Toronto-Dominion Bank as Administration Agent and the Lenders,
Arrangers and Syndication Agents named therein, as amended, supplemented,
restated or replaced from time to time (the "Credit Agreement"). All capitalized
terms used in this certificate and defined in the Credit Agreement have the
meanings defined in the Credit Agreement.
We hereby certify that the following is a true and correct
calculation of our Borrowing Base as of [DATE] and that the attached documents
accurately set out the details from which the Borrowing Base is calculated.
($'000S)
ACCOUNTS RECEIVABLE
Trade AR
Paper o
Pulp o
Fibre o
Allowance for doubtful accounts (o)
Accrued rebates, discounts and price adjustment (o)
Foreign Exchange & other o
-----------
Net Total o
Other AR
Employee AR o
Taxes o
Other o
-----------
o
-----------
Consolidated AR per Financial Statements o
Less: Employee AR (o)
Less: AR of Unrestricted Parties (o)
-----------
Adjusted AR o
-----------
- 2 -
-----------
75% OF ADJUSTED AR o
-----------
B INVENTORY
Finished Goods
Paper o
Pulp o
-----------
Sub total o
WIP o
Raw Materials
Chips o
Logs o
Sawdust o
DIP/Other purchased pulp o
Other o
-----------
Sub total o
Supplies
Crofton o
Elk Falls o
Powell River o
Port Alberni o
Other o
-----------
Sub total o
Consolidated Inventory per FS o
Less: WIP (o)
Less: Inventory of Unrestricted Parties (o)
-----------
Adjusted Inventory o
-----------
-----------
50% OF ADJUSTED INVENTORY o
-----------
===========
BORROWING BASE o
===========
(A + the lesser of A and B)
- 3 -
DATED _____________
NORSKE XXXX CANADA LIMITED
By:
----------------------------
Name:
Title:
By:
----------------------------
----------------------------
Name:
Title:
SCHEDULE H
OTHER SECURED OBLIGATIONS
[SEE REFERENCE IN SECTION 3.2]
U.S. dollar to Canadian dollar foreign exchange contracts between Norske Xxxx
Canada Finance Limited and the following Lenders existing as of the close of
business on 18 July 2002:
LENDER TOTAL AMOUNT - US$
------ ------------------
Royal Bank of Canada $88,000,000.00
The Toronto-Dominion Bank $52,500,000.00
The Bank of Nova Scotia $75,500,000.00
Bank of Montreal $ 8,000,000.00
HSBC Bank Canada $ 3,000,000.00
Laurentian Bank of Canada $ 2,000,000.00
Japanese yen to U.S. dollar foreign exchange contracts between Norske Xxxx
Canada Finance Limited and the following Lenders existing as of the close of
business on 18 July 2002:
LENDER TOTAL AMOUNT - JPY
------ ------------------
Royal Bank of Canada Y 50,000,000.00
The Toronto-Dominion Bank Y300,000,000.00
The Bank of Nova Scotia Y150,000,000.00
HSBC Bank Canada Y225,000,000.00
U.S. dollar to Canadian dollar call option agreements between Norske Xxxx Canada
Finance Limited and the following Lenders existing as at the close of business
on 18 July 2002:
LENDER TOTAL AMOUNT - US$
------ ------------------
The Toronto-Dominion Bank $34,000,000.00
U.S. dollar to Canadian dollar put and call option agreements with down and in
barrier price on USD call/Canada put currency pair between Norske Xxxx Canada
Finance Limited and the following Lenders existing as at the close of business
on 18 July 2002:
LENDER TOTAL AMOUNT - US$
------ ------------------
Bank of Montreal $6,000,000.00
- 2 -
U.S. dollar to Canadian dollar collar option agreements between Norske Xxxx
Canada Finance Limited and the following Lenders existing as of the close of
business on 18 July 2002:
LENDER TOTAL AMOUNT - US$
------ ------------------
Royal Bank of Canada $144,000,000.00
The Toronto-Dominion Bank $ 31,000,000.00
The Bank of Nova Scotia $ 9,000,000.00
HSBC Bank Canada $ 60,000,000.00
Bank of Montreal $ 78,000,000.00
Laurentian Bank of Canada $ 12,000,000.00
Canadian dollar to U.S. dollar foreign exchange contracts between Norske Xxxx
Canada Finance Limited and the following Lenders existing as of the close of
business on 18 July 2002:
LENDER TOTAL AMOUNT - US$
------ ------------------
Royal Bank of Canada $ 131,000,000.00
The Toronto-Dominion Bank $ 108,000,000.00
The Bank of Nova Scotia $ 69,800,000.00
HSBC Bank Canada $ 38,200,000.00
Bank of Montreal $ 10,000,000.00
Canadian dollar to U.S. dollar call option agreements between Norske Xxxx Canada
Finance Limited and the following lenders existing as at the close of business
on 18 July 2002:
LENDER TOTAL AMOUNT - US$
------ ------------------
Royal Bank of Canada $10,000,000.00
U.S. dollar interest rate swap contracts to exchange fixed for floating interest
rates between Norske Xxxx Canada Finance Limited and the following Lenders
existing as of the close of business on 18 July 2002:
LENDER TOTAL NOTIONAL PRINCIPAL AMOUNT - US$
------ -------------------------------------
Royal Bank of Canada $75,000,000.00
The Toronto-Dominion Bank $20,000,000.00
HSBC Bank Canada $30,000,000.00
SCHEDULE I
LIMITATIONS ON CERTAIN SUBSIDIARIES OF RESTRICTED PARTIES
[SEE REFERENCES IN SECTIONS 3.1, 7.2.5(c)]
None of 3264904 Canada Limited, Catalyst Paper Corporation (a British Columbia
company), Catalyst Paper Corporation (a CANADA BUSINESS CORPORATIONS ACT
company), Echelon Paper Corporation (a British Columbia company), Echelon Paper
Corporation (a CANADA BUSINESS CORPORATIONS ACT company), Export Sales Company
Limited (formerly Mackenzie Forest Products Limited), Crofton Pulp & Paper
Limited, 468327 B.C. Ltd., British Columbia Forest Products Limited, FCC
Holdings (Philippines) Inc., NSC Holdings (Barbados) Limited , NSC Fibre Inc.,
Arizona Newsprint Industries Corporation, Elk Falls Forest Industries Limited,
Norske Xxxx North America LLC and Allwin Technical Services Inc. shall at any
time carry on any business or have any material Property unless it first becomes
a Restricted Party in accordance with this Agreement.
SCHEDULE J
LITIGATION AND ENVIRONMENTAL MATTERS
[SEE REFERENCES IN SECTIONS 6.1.3(a), 6.1.6(a)]
A. LITIGATION
PLAINTIFF DEFENDANT NATURE STATUS
1. Avenor Inc. Norske Xxxx Canada Claim for contribution Unknown (claimant has
Limited or indemnity in respect not provided any detail)
of any judgment
International Forest
Products Limited may
obtain against Avenor
Inc. in respect of
contaminants and other
hazardous or toxic
substances
2. International Crown Forest Industries Contamination of Crown Writ of Summons issued
Forest Products Limited, Xxxxxxxx Forest Industries and Appearance entered.
Limited Challenge Canada Limited former Fraser International Forest
Limited, Elk Falls Mill site Products Limited has
Forest Industries agreed to discontinue
Limited and Elk Falls its action against Elk
Pulp and Paper Limited Falls Forest Industries
Limited.
- 2 -
B. GRIEVANCES
Nothing which meets the materiality threshold.
C. ENVIRONMENTAL
Nothing which meets the materiality threshold.
SCHEDULE K
EXISTING L/CS AND BANKERS' ACCEPTANCES
[SEE REFERENCE IN SECTION 2.8]
EXISTING L/CS
BENEFICIARY REFERENCE ISSUE DATE EXPIRY DATE AMOUNT
NUMBER
CIBC Mellon Trust Co. (re G21522V00010 27 Nov '91 31 Mar. '03 $25,987,000.00
executive pension)
Her Majesty the Queen in Right of G24914V0010 13 Apr. '92 12 Apr. '03 $100,000.00
the Province of BC (Minister of
Lands & Parks) (re waterlot leases)
EXISTING BANKERS' ACCEPTANCES
[NOTE: MATURITY DATES ARE ALL IN 2002. AMOUNTS ARE IN THOUSANDS OF DOLLARS]
22 Jul 30 Jul 6 Aug 26 Aug 21 Oct Total
The Toronto-Dominion Bank 300 100 200 300 200 1100
Royal Bank of Canada 300 300 200 200 200 1200
Bank of Montreal 800 800 600 500 500 3200
The Bank of Nova Scotia 800 800 600 500 500 3200
HSBC Bank Canada 800 800 600 500 500 0000
Xxxxxxx Xxxxx Xxxxxxx Xxxxxx Inc. 300 300 200 200 200 1200
Canadian Western Bank 200 300 200 200 200 1100
Laurentian Bank of Canada 400 400 300 100 300 1500
15700
SCHEDULE L
SPECIAL DERIVATIVE PROVISIONS
[SEE REFERENCES IN SECTIONS 1.1.37, 1.1.47, 1.1.79(i), 7.7 AND 8.1(k)]
NSCL has indicated that it is desirable, having regard to certain provisions of
the 1999 Indenture and the 2001 Indenture, to establish further arrangements on
which Derivatives described in Sections 1.1.79(c), 1.1.79(d) and 1.1.79(e) would
be entered into. These arrangements may include the appointment of a Lender to
act as an agent in connection with the administration of Derivatives (the
"DERIVATIVE AGENT"). NSCL has asked that the establishment of these arrangements
be deferred until after the initial Advance under this Agreement. Accordingly,
until otherwise agreed by amendment to this Agreement consented to by all
Lenders, the following provisions shall apply notwithstanding any other
provision of this Agreement:
1. No Restricted Party shall be a party to any Derivative of the type described
in Sections 1.1.79(c), 1.1.79(d) and 1.1.79(e), whether secured or unsecured and
whether entered into with a Lender or not, except for those that are outstanding
at the date of this Agreement and described on Schedule H (the "EXISTING SPECIAL
DERIVATIVES") and except that, if the amendment to this Agreement contemplated
in the preceding paragraph has not been entered into on or before 9 August 2002,
the Restricted Parties may enter into unsecured Derivatives of the type
described in Sections 1.1.79(c), 1.1.79(d) and 1.1.79(e) with persons other than
Lenders.
2. If the aggregate of the Market Values of all Existing Special Derivatives is
at any time negative from the Restricted Parties' perspective (that is, the
Restricted Parties on an aggregate basis are "out of the money") by more than
$10,000,000, the Restricted Parties shall, within five Business Days of
receiving notice from the Agent, terminate or re-price one or more Existing
Special Derivatives or take other action acceptable to the Agent acting
reasonably so that the negative Market Value of those Derivatives is immediately
reduced to less than $10,000,000.
3. NSCL shall report the current Market Value of the Existing Special
Derivatives to the Agent not less frequently than weekly.
TABLE OF CONTENTS
ARTICLE I INTERPRETATION.......................................................2
1.1 Defined Terms................................................2
ARTICLE II THE CREDITS........................................................27
2.1 Amount and Availment Options................................27
2.2 Revolving Credit............................................27
2.3 Use of Credits..............................................27
2.4 Term and Repayment..........................................27
2.5 Interest Rates and Fees.....................................29
2.6 Commitment Fee..............................................29
2.7 Other Fees..................................................30
2.8 Existing L/CS, Bankers' Acceptances Etc.....................30
2.9 Exchange Rate and Borrowing Base Fluctuations...............30
ARTICLE III SECURITY..........................................................31
3.1 Security....................................................31
3.2 Obligations Secured by the Trustee Security.................34
3.3 Consent to Assignment of Contracts..........................37
ARTICLE IV DISBURSEMENT CONDITIONS............................................38
4.1 Conditions Precedent to Initial Advance.....................38
4.1.1 Other Debt and Encumbrances.................................38
4.1.2 Financial Information.......................................38
4.1.3 Security and Other Documents................................39
4.1.4 Corporate and Other Information.............................39
4.1.5 Opinions....................................................39
4.1.6 Other Matters...............................................40
4.1.7 Deadline for Advance........................................40
4.2 Conditions Precedent to All Advances........................40
ARTICLE V ADVANCES............................................................41
- 2 -
5.1 Lenders' Obligations Relating to Credits 1 and 2............41
5.2 Adjustment of Proportionate Shares for Specific Credits.....42
5.3 Exceptions Regarding Particular Credits.....................42
5.4 Evidence of Indebtedness....................................42
5.5 Conversions.................................................43
5.6 Notice of Advances and Payments.............................43
5.7 Prepayments and Reductions..................................43
5.8 Prime Rate, Base Rate and LIBOR Advances....................44
5.9 LIBOR Periods...............................................45
5.10 Termination of LIBOR Advances...............................45
5.11 Co-ordination of Prime Rate, Base Rate and LIBOR Advances...46
5.12 Execution of Bankers' Acceptances...........................46
5.13 Sale of Bankers' Acceptances................................47
5.14 Size and Maturity of Bankers' Acceptances and Rollovers.....47
5.15 Co-ordination of BA Advances................................47
5.16 Payment of Bankers' Acceptances.............................49
5.17 Deemed Advance - Bankers' Acceptances.......................49
5.18 Waiver......................................................49
5.19 Degree of Care..............................................50
5.20 Indemnity...................................................50
5.21 Obligations Absolute........................................50
5.22 Shortfall on Drawdowns, Rollovers and Conversions...........50
5.23 Prohibited Use of L/CS and Bankers' Acceptances.............51
5.24 Issuance and Maturity of L/CS...............................51
5.25 Payment of L/C Fees.........................................51
5.26 Payment of L/CS.............................................51
5.27 Deemed Advance - L/CS.......................................52
5.28 Prohibited Rates of Interest................................53
- 3 -
ARTICLE VI REPRESENTATIONS AND WARRANTIES.....................................53
6.1 Representations and Warranties..............................53
6.1.1 Corporate Matters...........................................53
6.1.2 Credit Documents............................................55
6.1.3 Litigation, Financial Statements etc........................55
6.1.4 Other Debt..................................................56
6.1.5 Property and Capital Stock..................................57
6.1.6 Environmental Matters.......................................57
6.1.7 Taxes and Withholdings......................................58
6.1.8 Aboriginal Claims...........................................58
6.1.9 Other Matters...............................................59
6.2 Survival of Representations and Warranties..................60
ARTICLE VII COVENANTS AND CONDITIONS..........................................60
7.1 Financial Covenants.........................................60
7.2 Positive Covenants..........................................60
7.2.1 Payment; Operation of Business..............................60
7.2.2 Inspection..................................................61
7.2.3 Insurance...................................................62
7.2.4 Taxes, Encumbrances and Withholdings........................62
7.2.5 Other Matters...............................................62
7.3 Reporting and Notice Requirements...........................64
7.3.1 Periodic Reports............................................64
7.3.2 Requirements for Notice.....................................65
7.4 Ownership of the Restricted Parties.........................66
7.5 Negative Covenants..........................................67
7.5.1 Financial Transactions and Encumbrances.....................67
7.5.2 Business and Property.......................................69
7.5.3 Corporate Matters...........................................70
- 4 -
7.6 Use of Insurance Proceeds...................................71
7.7 Adjustments to Amount of Debt...............................72
ARTICLE VIII DEFAULT..........................................................73
8.1 Events of Default...........................................73
8.2 Acceleration and Termination of Rights......................76
8.3 Payment of L/CS.............................................76
8.4 Remedies....................................................76
8.5 Saving......................................................77
8.6 Perform Obligations.........................................77
8.7 Third Parties...............................................77
8.8 Power of Attorney...........................................77
8.9 Remedies Cumulative.........................................78
8.10 Set-Off or Compensation.....................................78
ARTICLE IX THE AGENT AND THE LENDERS..........................................78
9.1 Authorization of Agent and Relationship.....................78
9.2 Disclaimer of Agent.........................................79
9.3 Failure of Lender to Fund...................................80
9.4 Payments by the Borrower....................................81
9.5 Payments by Agent...........................................81
9.6 Direct Payments.............................................82
9.7 Administration of the Credits...............................83
9.8 Rights of Agent.............................................86
9.9 Acknowledgements, Representations and Covenants of Lenders..87
9.10 Collective Action of the Lenders............................88
9.11 Successor Agent.............................................88
9.12 Provisions Operative Between Lenders and Agent Only.........88
ARTICLE X ADDITIONAL LENDERS, SUCCESSORS AND ASSIGNS..........................89
10.1 Successors and Assigns......................................89
- 5 -
10.2 Assignments.................................................90
10.3 Participations..............................................91
ARTICLE XI MISCELLANEOUS PROVISIONS...........................................91
11.1 Headings and Table of Contents..............................91
11.2 Accounting Terms............................................91
11.3 Capitalized Terms...........................................92
11.4 Severability................................................92
11.5 Number and Gender...........................................92
11.6 Amendment, Supplement or Waiver.............................92
11.7 Governing Law...............................................92
11.8 This Agreement to Govern....................................93
11.9 Permitted Encumbrances......................................93
11.10 Currency ...................................................93
11.11 Liability of Lenders........................................93
11.12 Expenses and Indemnity......................................93
11.13 Environmental Indemnity.....................................94
11.14 Manner of Payment and Taxes.................................95
11.15 Increased Costs etc.........................................96
11.16 Interest on Miscellaneous Amounts ..........................96
11.17 Currency Indemnity .........................................96
11.18 Address for Notice .........................................97
11.19 Time of the Essence ........................................97
11.20 Further Assurances .........................................97
11.21 Term of Agreement ..........................................97
11.22 Payments on Business Day ...................................97
11.23 Counterparts and Facsimile .................................98
11.24 Waiver of Jury Trial, Consequential Damages etc. ...........98
11.25 Entire Agreement ...........................................98
- 6 -
11.26 Date of Agreement...........................................90
SCHEDULE A NOTICE OF ADVANCE OR PAYMENT........................................1
SCHEDULE B AGREEMENT OF NEW RESTRICTED SUBSIDIARY SUPPLEMENT TO CREDIT
AGREEMENT.................................................................1
SCHEDULE C COMPLIANCE CERTIFICATE..............................................1
SCHEDULE D ASSIGNMENT AGREEMENT................................................1
SCHEDULE E PROPORTIONATE SHARES OF LENDERS.....................................1
SCHEDULE F DETAILS OF CAPITAL STOCK, PROPERTY ETC..............................1
SCHEDULE G BORROWING BASE CERTIFICATE..........................................1
SCHEDULE H OTHER SECURED OBLIGATIONS...........................................1
SCHEDULE I LIMITATIONS ON CERTAIN SUBSIDIARIES OF RESTRICTED PARTIES...........1
SCHEDULE J LITIGATION AND ENVIRONMENTAL MATTERS................................1
SCHEDULE K EXISTING L/CS AND BANKERS' ACCEPTANCES..............................1
SCHEDULE L SPECIAL DERIVATIVE PROVISIONS.......................................1
