Exhibit 10.2
CHC HELICOPTER CORPORATION
AND
THE LENDERS FROM TIME TO TIME
PARTY TO THIS AGREEMENT
AND
THE BANK OF NOVA SCOTIA
as Administrative Agent
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US $225,000,000 CREDIT FACILITIES
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF 5 JULY 2000
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XXXXXX XXXXXX XXXXXXX LLP
POOLE, ALTHOUSE, XXXXXXXX & XXXXXX
NOTE: This document is a consolidation of the amended and restated credit
agreement dated as of 5 July 2000, which amended and restated a credit agreement
dated as of 2 August 1999, as previously amended and supplemented, and which has
in turn been amended by a first amending agreement dated as of 11 October 2000,
a second amending agreement and consent dated as of 31 October 2000, a third
amending agreement dated as of 15 December 2000, a fourth amending agreement
dated as of 16 July 2001, a fifth amending agreement dated as of 29 March 2002,
a sixth amending agreement and consent dated as of 29 April 2002, a seventh
amending agreement dated as of 4 July 2002, an eighth amending agreement dated
as of 31 July 2002, a ninth amending agreement dated as of 6 March 2003, a tenth
amending agreement dated as of 13 February 2004, an eleventh amending agreement
dated as of 21 April 2004 and a twelfth amending agreement dated as of 22 April
2004. This document has been prepared for convenience of reference only, by
incorporating the particular changes described in the amending agreements into
the text of the 5 July 2000 document. Other changes that exist at the date of
preparation of this document but have not been reflected in amending agreements
are not reflected in this document.
TABLE OF CONTENTS
ARTICLE I DEFINED TERMS.............................................................2
1.1 Defined Terms..............................................................2
1.2 Amendment and Restatement.................................................27
ARTICLE II CREDIT A................................................................28
2.1 Amount and Availment Options..............................................28
2.2 Revolving Credit..........................................................28
2.3 Use of Credit A...........................................................29
2.4 Term and Repayment........................................................29
2.5 Interest Rates and Fees...................................................29
2.6 Standby Fees..............................................................30
2.7 Other Fees................................................................30
2.8 Existing L/Cs.............................................................31
ARTICLE III CREDIT B...............................................................31
3.1 Amount and Availment Options..............................................31
3.2 Revolving Credit..........................................................32
3.3 Use of Credit B...........................................................32
3.4 Term and Repayment........................................................32
3.5 Interest Rates and Fees...................................................32
3.6 Standby Fees..............................................................32
3.7 Guarantee of CHC..........................................................33
ARTICLE IV CREDIT C................................................................33
4.1 Amount and Availment Options..............................................33
4.2 Non-Revolving Credit......................................................33
4.3 Use of Credit C...........................................................33
4.4 Term and Repayment........................................................33
4.5 Prepayments of Credits....................................................34
4.6 Interest Rates and Fees...................................................38
ARTICLE V CREDIT D.................................................................38
5.1 Amount and Availment Options..............................................38
5.2 Non-Revolving Credit......................................................39
5.3 Use of Credit D...........................................................39
5.4 Term and Repayment........................................................39
5.5 Interest Rates and Fees...................................................39
ARTICLE V-A CREDIT E...............................................................39
5A.1 Amount and Availment Options..............................................39
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5A.2 Non-Revolving Credit......................................................40
5A.3 Use of Credit E...........................................................40
5A.4 Term and Repayment........................................................40
5A.5 Interest Rates and Fees...................................................41
ARTICLE VI SECURITY AND EXCHANGE RATE FLUCTUATIONS.................................41
6.1 Security..................................................................41
6.2 Obligations Secured by the Security.......................................44
6.3 Exchange Rate Fluctuations................................................46
6.4 Borrowing Base............................................................47
ARTICLE VII DISBURSEMENT CONDITIONS................................................47
7.1 Conditions Precedent to Initial Advance...................................47
ARTICLE VIII ADVANCES..............................................................52
8.1 Lenders' Obligations Relating to L/Cs and Credits A and B.................52
8.2 Adjustment of Proportionate Shares for Specific Credits...................53
8.3 Exceptions Regarding Particular Credits...................................53
8.4 Evidence of Indebtedness..................................................54
8.5 Conversions...............................................................55
8.6 Notice of Advances and Payments...........................................55
8.7 Prepayments and Reductions................................................55
8.8 Prime Rate, Base Rate and LIBOR Advances..................................56
8.9 LIBOR Periods.............................................................57
8.10 Termination of LIBOR Advances.............................................57
8.11 Co-ordination of Prime Rate, Base Rate (US) and LIBOR Advances............58
8.12 Execution of Bankers' Acceptances.........................................58
8.13 Reference Lenders.........................................................59
8.14 Sale of Bankers' Acceptances..............................................60
8.15 Size and Maturity of Bankers' Acceptances and Rollovers...................60
8.16 Co-ordination of BA Advances..............................................60
8.17 Payment of Bankers' Acceptances...........................................62
8.18 Deemed Advance - Bankers' Acceptances.....................................62
8.19 Waiver....................................................................63
8.20 Degree of Care............................................................63
8.21 Indemnity.................................................................63
8.22 Obligations Absolute......................................................63
8.23 Shortfall on Drawdowns, Rollovers and Conversions.........................63
8.24 Prohibited Use of Bankers' Acceptances and L/Cs...........................64
8.25 Issuance and Maturity of L/Cs.............................................64
8.26 Payment of L/C Fees.......................................................64
8.27 Payment of L/Cs...........................................................65
8.28 Deemed Advance - L/Cs.....................................................66
8.29 Prohibited Rates of Interest..............................................66
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ARTICLE IX REPRESENTATIONS AND WARRANTIES..........................................66
9.1 Representations and Warranties............................................66
ARTICLE X COVENANTS AND CONDITIONS.................................................72
10.1 Intercompany Obligations..................................................72
10.2 Financial Covenants.......................................................73
10.3 Positive Covenants........................................................74
10.4 Reporting and Notice Requirements.........................................78
10.5 Ownership of the Restricted Parties.......................................82
10.6 Negative Covenants........................................................82
10.7 Payments by CHC...........................................................88
10.8 Limits on Certain Restricted Parties......................................88
10.9 Use of Insurance Proceeds.................................................89
ARTICLE XI DEFAULT.................................................................89
11.1 Events of Default.........................................................89
11.2 Acceleration and Termination of Rights....................................91
11.3 Payment of Bankers' Acceptances and L/Cs..................................92
11.4 Remedies..................................................................92
11.5 Saving....................................................................92
11.6 Perform Obligations.......................................................93
11.7 Third Parties.............................................................93
11.8 Power of Attorney.........................................................93
11.9 Remedies Cumulative.......................................................93
11.10 Set-Off or Compensation...................................................94
ARTICLE XII THE AGENT AND THE LENDERS..............................................94
12.1 Authorization of Agent and Relationship...................................94
12.2 Disclaimer of Agent.......................................................94
12.3 Failure of Lender to Fund.................................................95
12.4 Payments by the Borrowers.................................................96
12.5 Payments by Agent.........................................................97
12.6 Direct Payments...........................................................98
12.7 Administration of the Credits.............................................98
12.8 Rights of Agent..........................................................102
12.9 Acknowledgements, Representations and Covenants of Lenders...............102
12.10 Collective Action of the Lenders.........................................103
12.11 Successor Agent..........................................................104
12.12 Provisions Operative Between Lenders and Agent Only......................104
ARTICLE XIII ADDITIONAL LENDERS, SUCCESSORS AND ASSIGNS...........................105
13.1 Successors and Assigns...................................................105
13.2 Assignments..............................................................106
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13.3 Participations...........................................................107
ARTICLE XIV MISCELLANEOUS PROVISIONS..............................................107
14.1 Headings and Table of Contents...........................................107
14.2 Accounting Terms.........................................................108
14.3 Capitalized Terms........................................................108
14.4 Severability.............................................................108
14.5 Number and Gender........................................................108
14.6 Amendment, Supplement or Waiver..........................................108
14.7 Governing Law............................................................108
14.8 This Agreement to Govern.................................................109
14.9 Permitted Encumbrances...................................................109
14.10 Currency.................................................................109
14.11 Liability of Lenders.....................................................109
14.12 Expenses and Indemnity...................................................110
14.13 Manner of Payment and Taxes..............................................111
14.14 Increased Costs etc......................................................111
14.15 Interest on Miscellaneous Amounts........................................112
14.16 Currency Indemnity.......................................................112
14.17 Address for Notice.......................................................113
14.18 Time of the Essence......................................................113
14.19 Further Assurances.......................................................113
14.20 Term of Agreement........................................................113
14.21 Payments on Business Day.................................................113
14.22 Counterparts and Facsimile...............................................113
14.23 Waiver of Jury Trial, Consequential Damages Etc..........................114
14.24 Entire Agreement.........................................................114
14.25 Date of Agreement........................................................114
SCHEDULE A - NOTICE OF ADVANCE, PAYMENT, ROLLOVER OR CONVERSION
SCHEDULE B - AGREEMENT OF NEW RESTRICTED SUBSIDIARY
SCHEDULE C - REPORTING CERTIFICATE
SCHEDULE D - ASSIGNMENT AGREEMENT
SCHEDULE E - PROPORTIONATE SHARES OF LENDERS
SCHEDULE F - DETAILS OF CAPITAL STOCK, PROPERTY ETC.
SCHEDULE G - OTHER SECURED OBLIGATIONS
SCHEDULE H - LITIGATION
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SCHEDULE I - LOCATIONS OF AIRCRAFT
SCHEDULE J - INTELLECTUAL PROPERTY
SCHEDULE K - LIMITATIONS ON CERTAIN RESTRICTED PARTIES AND OTHERS
SCHEDULE L - INTERCOMPANY LOAN OBLIGATIONS
SCHEDULE M - SPECIAL REQUIREMENTS REGARDING AIRCRAFT
SCHEDULE N - RESTRICTED PARTIES
SCHEDULE O - CERTAIN OPERATING LEASES
THIS AMENDED AND RESTATED
CREDIT AGREEMENT is made as of 5 July 2000
BETWEEN:
CHC HELICOPTER CORPORATION AND ITS SUBSIDIARIES
LISTED ON SCHEDULE N TO THIS AGREEMENT
(collectively, the "Restricted Parties")
- and -
THE LENDERS LISTED ON SCHEDULE
TO THIS AGREEMENT
(the "Lenders")
- and -
THE BANK OF NOVA SCOTIA
in its capacity as Administrative Agent
(the "Agent")
RECITALS:
(a) Certain parties to this agreement are also parties to a
credit
agreement dated as of 2 August 1999, as supplemented by agreements
under which various subsidiaries of
CHC Helicopter Corporation have
become parties thereto and as amended by the first amending agreement
dated as of 1 November 1999, the second amending agreement dated as of
13 January 2000 and the third amending agreement dated as of 27 March
2000 (as supplemented and amended, the "Existing
Credit Agreement").
Under the Existing
Credit Agreement, The Bank of Nova Scotia provided
CHC Helicopter Corporation with senior secured credit facilities of up
to an original maximum aggregate amount of US $410,000,000 to finance
the acquisition by Vinland Helicopters AS of shares of Helicopter
Services Group ASA, to refinance certain of CHC's existing
indebtedness and the existing indebtedness of its subsidiaries, and to
refinance certain existing indebtedness of Helicopter Services Group
ASA and its subsidiaries.
(b) Vinland Helicopters AS has now completed the acquisition of 100% of
the shares of Helicopter Services Group ASA (now known as Helicopter
Services Group AS) and
CHC Helicopter Corporation is concurrently
issuing its 11.75% senior subordinated notes due 2007 in the aggregate
principal amount of (euro)145,000,000, which will be used to partially
repay amounts owing under the Existing
Credit Agreement.
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(c) The Lenders have provided commitments to
CHC Helicopter Corporation
for senior secured credits in an aggregate principal amount of US
$225,000,000 which will continue the credits established in the
Existing
Credit Agreement, to the extent they have not been repaid.
(d) The parties are entering into this Agreement to amend and restate the
Existing
Credit Agreement and provide for the terms of the continuing
credits.
THEREFORE, for value received, and intending to be legally bound by
this Agreement, the parties agree that the Existing Credit Agreement is hereby
amended and restated so that, as amended and restated, it reads as follows:
ARTICLE I
DEFINED TERMS
1.1 Defined Terms
In this Agreement, unless something in the subject matter or context
is inconsistent therewith:
1.1.1 "Adjusted Total Debt Ratio" means, at any time, the ratio calculated
by dividing (a) the Total Debt plus, for any Lease to which a
Restricted Party is a party that is not included within Total Debt,
the least of (i) eight times the total of all payments made in respect
of the Lease during CHC's four most recently completed fiscal
quarters, (ii) the aggregate of all remaining payments during the term
of the Lease and any purchase option or other payment due on
termination of the Lease, and (iii) the purchase option price at which
the Restricted Party could at that time promptly acquire the full
residual title to the Leased aircraft, free of the Lease, by (b) the
aggregate of EBITDA plus (to the extent not included in EBITDA) the
total of all payments made by Restricted Parties in respect of Leases,
in each case for CHC's four most recently completed fiscal quarters.
[Note: Section amended by Eleventh Amending Agreement]
1.1.2 "Advance" means an availment of a Credit by a Borrower by way of Prime
Rate Advance, Base Rate Advance, acceptance of Bankers' Acceptances,
L/C or LIBOR Advance, including deemed Advances and conversions,
renewals and rollovers of existing Advances, and any reference
relating to the amount of Advances shall mean the sum of all
outstanding Prime Rate Advances, Base Rate Advances and LIBOR
Advances, plus the face amount of all outstanding Bankers' Acceptances
and L/Cs.
1.1.3 "Agent" means BNS in its role as Agent for the Lenders, and any
successor Agent appointed in accordance with this Agreement. The Agent
may perform its role through one or more offices and, in particular,
shall designate an office in London, England for the purposes of
receiving notices and payments and making Advances in connection with
Credit B.
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1.1.4 "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.
1.1.5 "Aircraft" means helicopters and fixed wing aircraft, including all
Parts from time to time incorporated or installed in, attached to or
forming part of such aircraft.
1.1.6 "Approved Currencies" means Canadian Dollars, US Dollars, Euros,
British Pounds and other currencies to be specified from time to time
and agreed to by all Lenders requested to make Advances in those
currencies, which are readily available to those Lenders and are
freely transferable into US Dollars, and in which the Restricted
Parties have significant revenues, and "Approved Currency" means any
one of them.
1.1.7 "Assignment Agreement" means an agreement in the form of Schedule D to
this Agreement.
1.1.8 "ATI" means Atlantic Turbines Inc., a corporation constituted pursuant
to the Canada Business Corporations Act.
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 bank named on Schedule I to the Bank Act (Canada), the
rate determined by the Agent as being the arithmetic average (rounded
upward to the nearest multiple of 0.01%) of the discount rates,
calculated on the basis of a year of 365 days and determined in
accordance with normal market practice at or about 10:00 a.m. (Toronto
time) on the applicable Drawdown Date, for bankers' acceptances of the
Schedule I Reference Lenders having a comparable face amount and
identical maturity date to the face amount and maturity date of such
Bankers' Acceptance, and (b) with respect to any Bankers' Acceptance
accepted by any other Lender, the rate determined by the Agent as
being the arithmetic average (rounded upward to the nearest multiple
of 0.01%) of the discount rates, calculated on the basis of a year of
365 days and determined in accordance with normal market practice at
or about 10:00 a.m. (Toronto time) on the applicable Drawdown Date,
for bankers' acceptances of the Schedule II Reference Lenders having a
comparable face amount and
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identical maturity date to the face amount and maturity date of such
Bankers' Acceptance.
"Bank of England Repo Rate" means for any period the fluctuating
interest rate per annum at which the Bank of England, London provides
refinancing by lending to its counterparties in the wholesale money
markets as set by the Monetary Policy Committee under powers set by
the Bank of Xxxxxxx Xxx 0000. [Note: Section added by Ninth Amending
Agreement]
1.1.11 "Bankers' Acceptance" means a depository xxxx as defined in the
Depository Bills and Notes Act (Canada) in Canadian Dollars that is in
the form of an order signed by a Borrower and accepted by a Lender
pursuant to this Agreement or, for Lenders not participating in
clearing services contemplated in that Act, a draft or xxxx of
exchange in Canadian Dollars that is drawn by a Borrower and accepted
by a Lender pursuant to this Agreement. Orders that become depository
bills, drafts and bills of exchange are sometimes collectively
referred to in this Agreement as "orders."
1.1.12 "Bankers' Acceptance Fee" means the amount calculated by multiplying
the face amount of each Bankers' Acceptance by the rate for the
Bankers' Acceptance Fee specified in Sections 2.5 and 4.6, and then
multiplying the result by a fraction, the numerator of which is the
duration of its term on the basis of the actual number of days to
elapse from and including the date of acceptance of a Bankers
Acceptance by the Lender up to but excluding the maturity date of the
Bankers' Acceptance and the denominator of which is the number of days
in the calendar year in question.
1.1.13 "Base Rate Advances" means, collectively, any of Base Rate (UK)
Advances and Base Rate (US) Advances.
1.1.14 "Base Rate (UK)" means, on any day, the greater of:
(a) the annual rate of interest expressed as a percentage per annum
announced by Bank of Scotland on that date as its reference
rate for commercial loans made by it in the United Kingdom in
British Pounds; and
(b) the Bank of England Repo Rate plus 0.5% per annum.
[Note: Section amended by Third Amending Agreement and Ninth Amending
Agreement]
1.1.15 "Base Rate (UK) Advance" means an Advance in British Pounds bearing
interest based on the Base Rate (UK) and includes deemed Base Rate
(UK) advances provided for in this Agreement.
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1.1.16 "Base Rate (US)" means, on any day, the greater of:
(a) the average of the annual rates of interest (expressed as a
percentage per annum on the basis of a 360 day year) announced
by the Schedule I Reference Lenders on that day as their
respective reference rates for commercial loans made in Canada
in US Dollars; and
(b) the Federal Funds Effective Rate plus 0.5% per annum.
1.1.17 "Base Rate (US) 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.
1.1.18 "BNS" means The Bank of Nova Scotia, a bank to which the Bank Act
(Canada) applies.
1.1.19 "Bond" means CHC Scotia Limited, a corporation constituted pursuant to
the corporate laws of England and Wales, which was previously known as
Scotia Helicopter Services Ltd. and as Bond Helicopters Limited.
[Note: Section amended by Third Amending Agreement]
1.1.20 "Borrowers" means CHC and the European Borrowers, and "Borrower" means
any of them.
"Borrowing Base" means the amount determined by the formula that is
set out in the attachment to the Reporting Certificate, but any error,
omission or other discrepancy in the calculations of the Borrowing
Base submitted by CHC is not binding on the Lenders. [Note: Section
added by Eleventh Amending Agreement]
"BoS" means The Governor and Company of the Bank of Scotland
incorporated under an Act of Parliament of the United Kingdom
(commonly referred to as Bank of Scotland). [Note: Section added by
Fourth Amending Agreement]
1.1.21 "Branch of Account" means the IBD Loan Administration & Agency
Services of BNS at 14th Floor, 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx,
X0X 0X0.
1.1.22 "Brintel" means Brintel Helicopters Limited, a corporation constituted
pursuant to the corporate laws of Scotland.
1.1.23 "British Pounds", and "(pound)" mean pounds sterling, the lawful money
of the United Kingdom of Great Britain and Northern Ireland.
1.1.24 "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
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Toronto, Ontario, at its St. John's, Newfoundland Commercial Banking
Centre and Main Branch and at its principal offices in New York, New
York, and London, England and (b) banks are open for business in the
country of issue of any Approved Currency relevant to any notice,
determination, payment or Advance made on the day. Notwithstanding the
foregoing, if banks will be open in some locations referred to above
and closed in others on a particular day, and the Agent determines
that the closing of those banks on that day will not adversely affect
completion of relevant transactions in accordance with customary
banking market and trading practices, the Agent may, on reasonable
advance notice to CHC and the Lenders on each occasion, specify the
particular day to be a Business Day.
1.1.25 "Canadian Dollars", "Cdn. Dollars", "Cdn. $" and "$" mean lawful money
of Canada.
1.1.26 "Canadian Sale" means the proposed sale of CHL's Eastern and Western
divisions that is contemplated in a memorandum of agreement dated as
of 30 May 2000.
1.1.27 "Capital Expenditure" means any expenditure for fixed or capital
assets that would be classified as a capital expenditure in accordance
with GAAP but excludes any expenditure for Capital Stock or for fixed
or capital assets made as part of the acquisition of an operating
business.
1.1.28 "Capital Stock" means, with respect to any person, any and all present
and future shares, partnership or other interests, participations or
other equivalent rights in the person's capital, however designated
and whether voting or non-voting.
1.1.29 "CHB" means CHC Helicopters (Barbados) Limited, a corporation
constituted pursuant to the corporate laws of Barbados, formerly known
as Canadian Helicopters (Barbados) Limited. [Note: Section amended by
Eleventh Amending Agreement]
1.1.30 "CHC" means
CHC Helicopter Corporation, a corporation constituted
pursuant to the Canada Business Corporations Act.
1.1.31 "CHL" means CHC Helicopters International Inc., a corporation
constituted pursuant to the Canada Business Corporations Act, formerly
known as Canadian Helicopters Limited. [Note: Section amended by
Second Amending Agreement]
1.1.32 "Collateral" means cash, a bank draft or a letter of credit issued by
a Canadian chartered bank, all in a form satisfactory to the Lenders,
acting reasonably.
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1.1.33 "Commitment" means in respect of each Lender from time to time, the
covenant to make Advances to the Borrowers in the Lender's
Proportionate Share of the maximum amount of any Credit and, where the
context requires, the maximum amount of Advances which the Lender has
covenanted to make.
1.1.34 "Constating Documents" means, with respect to any Restricted Party,
its articles or certificate of incorporation, amalgamation or
continuance, memorandum of association, by-laws, partnership
agreement, limited liability company agreement or other similar
document, and all unanimous shareholder agreements, other shareholder
agreements, voting trust agreements and similar arrangements
applicable to the Restricted Party's Capital Stock, all as amended
from time to time.
1.1.35 "Contracts" means agreements, franchises, leases, easements,
servitudes, privileges and other rights, other than Permits.
1.1.36 "Contributing Lender" shall have the meaning defined in Section
12.3.2.
1.1.37 "Credit A" means, collectively, the revolving credit of up to US
$33,000,000 or the equivalent thereof in relevant Approved Currencies
(designated as "Credit A1") and the revolving credit of up to US
$7,000,000 or the equivalent thereof in relevant Approved Currencies
(designated as "Credit A2") which are established in favour of CHC by
this Agreement to continue credits provided to CHC in the Existing
Credit Agreement and to assist in financing the future general
corporate requirements of the Restricted Parties.
1.1.38 "Credit A Lenders" means the Lenders who have provided Commitments
relating to Credit A as more particularly described in Schedule E.
1.1.39 "Credit B" means, collectively, the revolving credit in the amount of
up to (pound)4,788,866 or the equivalent thereof in relevant Approved
Currencies (designated as "Credit B1") and the revolving credit in the
amount of up to (pound)2,000,000 or the equivalent thereof in relevant
Approved Currencies (designated as "Credit B2") which is established
in favour of the European Borrowers and CHC by this Agreement to
assist in refinancing credits provided to CHC in the Existing Credit
Agreement and to assist in financing the future general corporate
requirements of the Restricted Parties. [Note: Section amended by
First, Third and Fourth Amending Agreements]
1.1.40 "Credit B Lenders" means the Lenders who have provided Commitments
relating to Credit B as more particularly described in Schedule E.
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1.1.41 "Credit C" means the non-revolving credit of up to (pound)51,000,000
or the equivalent thereof in relevant Approved Currencies which is
established in favour of CHC by this Agreement to continue credits
provided to CHC in the Existing Credit Agreement. [Note: Section
amended by First Amending Agreement]
1.1.42 "Credit C Lenders" means the Lenders who have provided Commitments
relating to Credit C as more particularly described in Schedule E.
1.1.43 "Credit D" means the non-revolving credit of (pound)60,802,594.24
(originally US $90,000,000) which is established in favour of CHC by
this Agreement to continue credits provided to CHC in the Existing
Credit Agreement. [Note: Section amended by First Amending Agreement]
1.1.44 "Credit D Lenders" means the Lenders who have provided Commitments
relating to Credit D as more particularly described in Schedule E.
"Credit E" means the non-revolving credit of up to (euro)93,634,192,
which is established in favour of CHC by this Agreement. [Note:
Section added by Fourth Amending Agreement and amended by Tenth and
Twelfth Amending Agreements]
"Credit E Lenders" means the Lenders who have provided Commitments
relating to Credit E as more particularly described in Schedule E.
[Note: Section added by Fourth Amending Agreement]
1.1.45 "Credits" means Credit A, Credit B, Credit C, Credit D and Credit E,
and "Credit" means any of them. [Note: Section amended by Fourth
Amending Agreement]
1.1.46 "Credit Documents" means this Agreement, the Security and all other
documents relating to the Credits, or any of them.
1.1.47 "Debt" means, with respect to any person, without duplication and,
except as provided in item (b) below, without regard to any interest
component thereof (whether actual or imputed) that is not due and
payable, the aggregate of the following amounts, each calculated in
accordance with GAAP unless the context otherwise requires:
(a) all obligations (including, 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;
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(b) the face amount of all bankers' acceptances and similar
instruments;
(c) all liabilities upon which interest charges are customarily
paid by that person;
(d) any capital stock of that person (or of any Subsidiary of that
person that is not held by that person or by a Subsidiary of
that person that is wholly owned, directly or indirectly) which
capital stock, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable at
the option of the holder), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of
the holder thereof, in whole or in part, on or before 31
December 2005, for cash or securities constituting Debt;
(e) all purchase money obligations and obligations under Leases,
other than obligations under any Leases that are listed on
Schedule O and under operating leases (including but not
limited to operating leases such as off balance sheet leases of
Aircraft in Norway that were existing on 5 July 2000); [Note:
Section amended by Eleventh Amending Agreement]
(f) the aggregate Market Value of all Swaps that have a negative
Market Value from that person's perspective, i.e. that person
is "out of the money," after offsetting for Swaps in which a
Lender is the counterparty, the Market Value of Swaps with the
same Lender that have a positive Market Value;
(g) the amount of the contingent liability under any guarantee
(other than by endorsement of negotiable instruments for
collection or deposit in the ordinary course of business) in
any manner of any part or all of an obligation of another
person of the type included in items (a) through (f) above;
(h) the amount of all contingent liabilities in respect of L/Cs and
other letters of credit and letters of guarantee;
(i) the amount of all contingent liabilities in respect of
performance bonds and surety bonds, and any other guarantee or
other contingent liability of any part or all of an obligation
of a person other than 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;
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(j) less the amount of cash on deposit with Lenders up to an
aggregate at any time of $40,000,000 for all Restricted
Parties, and less the amount of cash on deposit with Lenders in
excess of $40,000,000 that is expressly pledged to the Agent as
part of the Security; [Note: Section amended by Ninth and
Eleventh Amending Agreements]
provided that trade payables and accrued liabilities that are current
liabilities incurred in the ordinary course of business do not
constitute Debt. [Note: Section amended by Eleventh Amending
Agreement]
1.1.48 "Defaulting Lender" has the meaning defined in Section 12.3.2.
1.1.49 "Designated Account" means, in respect of any Advance, the account or
accounts that a Borrower designates in its notice requesting an
Advance and that are maintained at a branch of the Agent in St.
John's, Newfoundland (in the case of CHC) or London, England (in the
case of the European Borrowers) or in another location approved in
advance by the Agent, acting reasonably.
1.1.50 "Discovery Note" means a $5,000,000 promissory note of CHC in favour
of Discovery Helicopters Limited, a corporation controlled by Xx. X.X.
Xxxxxx, the proceeds of which were advanced to CHC in August 1999 to
assist in financing the acquisition of HSG.
1.1.51 "Drawdown Date" means the date, which shall be a Business Day, of any
Advance.
1.1.52 "EBITDA" means, for any relevant period, an amount equal to CHC's net
income or net loss for the period, calculated on a consolidated basis:
(a) plus amounts deducted in calculating net income or net loss in
respect of depreciation and amortization;
(b) plus interest expense on Total Debt;
(c) plus amounts deducted in calculating net income or net loss in
respect of income taxes, whether or not deferred;
and excluding:
(d) any gain or loss attributable to the sale, conversion or other
disposition of assets; and
(e) gains resulting from the write-up of assets and losses
resulting from the write-down of assets (other than losses
resulting from allowances for doubtful accounts, which shall be
included); and
-11-
(f) any gain or loss on the repurchase or redemption of any
securities (including in connection with the early retirement
or defeasance of any Debt); and
(g) any foreign exchange gain or loss; and
(h) any other extraordinary, non-recurring or unusual items; and
(i) amounts attributable to persons other than Restricted Parties
or to minority interests in Restricted Parties;
all of which shall be calculated in accordance with GAAP unless
otherwise expressly described. Except with respect to the Xxxxxxxxx
Acquisition, if CHC has established a new 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 adjusted on a basis satisfactory to the Majority Lenders 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.
With respect to the Xxxxxxxxx Acquisition, if EBITDA for CHC is to be
calculated for a period beginning before the completion of the
Xxxxxxxxx Acquisition and is to be calculated as of a date after
Xxxxxxxxx and its Subsidiaries have become Restricted Parties and
given Security as required by this Agreement, an adjustment shall be
made by (x) calculating EBITDA for Xxxxxxxxx and the Restricted
Parties that are Subsidiaries of Xxxxxxxxx for the period beginning at
the date of completion of the Xxxxxxxxx Acquisition and ending at the
end of the period for which CHC's EBITDA is to be calculated and (y)
multiplying it by a fraction the numerator of which is 366 and the
denominator of which is the number of days in the period described in
(x). For greater certainty, if Xxxxxxxxx and its Subsidiaries have not
become Restricted Parties and given Security, amounts attributable to
them must be excluded in calculating EBITDA. [Note: Section amended by
Tenth Amending Agreement]
1.1.53 "Encumbrance" means any mortgage, debenture, pledge, hypothec, prior
claim, lien, charge, assignment by way of security, consignment,
Lease, hypothecation, security interest or other security agreement,
trust or arrangement having the effect of security for the payment of
any debt, liability or obligation, and "Encumbrances", "Encumbrancer",
"Encumber" and "Encumbered" shall have corresponding meanings. [Note:
Section amended by Eleventh Amending Agreement]
1.1.54 "European Borrowers" means Bond, and any other European Restricted
Party that may be designated by CHC as a European Borrower from time
to time with the consent of the Majority Lenders and after delivery of
such guarantees and other Security as the Majority Lenders may
reasonably require. Without limiting the foregoing, HSAS may be
designated as a
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European Borrower if CHC and the other Restricted Parties that have
not given guarantees of CHC's Obligations (because of limitations of
Norwegian and similar laws) give a guarantee of HSAS's Obligations as
Borrower and HSAS and those other Restricted Parties amend the
Security they have given so as to secure HSAS's Obligations as
Borrower or their guarantees thereof.
1.1.55 "Euros" and "(euro)" mean units of the single currency adopted by
certain member states of the European Union in accordance with
legislation of the European Union relating to European Economic and
Monetary Union.
1.1.56 "Event of Default" has the meaning defined in Section 11.1.
1.1.57 "Excess Cash Flow" means, for any fiscal year, the aggregate for the
CHC Group on a consolidated basis, without duplication, of:
(a) EBITDA;
(b) plus net cash proceeds of extraordinary, unusual or
non-recurring items;
(c) less interest expense on Total Debt and income taxes payable in
respect of the fiscal year, other than deferred taxes;
(d) less the principal amount by which Total Debt was mandatorily
and permanently repaid during the fiscal year other than as a
result of payments from Excess Cash Flow; and
(e) less the amount actually paid for capital expenditures during
the fiscal year up to $15,000,000.
[Note: Section amended by Eleventh Amending Agreement]
1.1.58 "Exchange Rate" means, on any day, for the purpose of calculations
under this Agreement, the amount of one Approved Currency into which
another Approved Currency may be converted using the Agent's mid rate
(i.e. the average of the Agent's spot buying and selling rates) for
converting the first currency to the other currency at the relevant
time on that day. If the Exchange Rate is being determined at any time
in respect of a previous day, the noon spot rate of the Bank of Canada
on that previous day shall be used instead of the Agent's mid rate.
1.1.59 "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 (other than by reason of entering into this
Agreement, making, holding and enforcing the Credits and receiving
payments in respect
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thereof), 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 or (iv) not
dealing at arm's length with the Restricted Parties or any other
Lender; 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 Borrowers under this
Agreement or any withholding tax.
1.1.60 "Existing Credit Agreement" has the meaning defined in the first
recital to this Agreement.
1.1.61 "Federal Funds Effective Rate" means for any period, a fluctuating
interest rate per annum equal, for each day during such period, to the
weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by Federal Funds
brokers as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York or, for any day on which that rate is not published for
that day by the Federal Reserve Bank of New York, the average of the
quotations for that day for such transactions received by the Agent
from three Federal Funds brokers of recognized standing.
1.1.62 "Fee Agreement" means, collectively, the letter from BNS to CHC dated
29 June 2000 and accepted by CHC as of 30 June 2000, to the extent
that it sets out fees payable to BNS, and the fee letter from BNS to
CHC dated 3 February 2004 and accepted by CHC as of 3 February 2004,
as those letters are amended, supplemented, restated and replaced from
time to time. [Note: Section amended by Tenth Amending Agreement]
1.1.63 "Fixed Charge Coverage Ratio" means, at any time, the ratio calculated
by dividing (a) the aggregate of EBITDA, plus (to the extent not added
back in calculating EBITDA) the total of all payments made by
Restricted Parties in respect of Leases, less Net Capital
Expenditures, for CHC's four most recently completed fiscal quarters
by (b) the aggregate of amounts paid (or required to be paid) by the
Restricted Parties for Total Interest Expense, scheduled principal
reductions and the amounts actually paid on account of taxes and
dividends, plus (to the extent not included in Total Interest Expense)
the total of all payments made by Restricted Parties in respect of
Leases, for CHC's four most recently completed fiscal quarters. [Note:
Section amended by Eleventh Amending Agreement]
1.1.64 "GAAP" means generally accepted accounting principles which are in
effect from time to time in Canada, as established by the Canadian
Institute of Chartered Accountants.
1.1.65 "Hazardous Materials" means any hazardous substance or any pollutant
or contaminant, toxic or dangerous waste, substance or material, as
-14-
defined in or regulated by any applicable law, regulation or
governmental authority from time to time, including, without
limitation, friable asbestos and poly-chlorinated biphenyls.
1.1.66 "HSAS" means CHC Helikopter Service AS, a corporation constituted
pursuant to the corporate laws of Norway, formerly known as Helikopter
Service AS. [Note: Section amended by Eleventh Amending Agreement]
1.1.67 "HSG" means Helicopter Services Group AS, a corporation constituted
pursuant to the corporate laws of Norway, formerly known as Helicopter
Services Group ASA.
1.1.68 "Intellectual Property" means patents, trademarks, service marks,
trade names, copyrights, trade secrets, industrial designs and other
similar rights.
1.1.69 "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.
1.1.70 "Intercompany Loan Obligations" means all present and future debts,
liabilities and obligations of any kind owing or remaining unpaid by
any Restricted Party to another Restricted Party in respect of loans
or advances made, including but not limited to the loans described on
Schedule L.
1.1.71 "Intercompany Obligations" means all present and future debts,
liabilities and obligations of any kind owing or remaining unpaid by
any Restricted Party to another Restricted Party, including but not
limited to Intercompany Loan Obligations, guarantees of Intercompany
Loan Obligations of another Restricted Party and indebtedness for
goods and services supplied by any Restricted Party to another.
1.1.72 "Intercreditor Agreements" means an intercreditor agreement dated as
of 5 July 2000 between the Agent, for and on behalf of the Lenders,
BNS as collateral agent, the trustee for the holders of the 2000
Notes, CHC and CHB providing for the terms on which BNS will act as
collateral agent to hold certain Security given by CHB and
Scandinavian Restricted Parties for the benefit of the holders of the
2000 Notes on a subordinated basis, an intercreditor agreement dated
as of August 1999 with the holder of the Discovery Note, and other
intercreditor agreements that may be entered into from time to time to
provide for the terms of subordination of other Debt in favour of the
Obligations, each as amended, supplemented, restated and replaced from
time to time.
-15-
1.1.73 "Interest Coverage Ratio" means, at any time, the ratio calculated by
dividing (a) EBITDA for CHC's four most recently completed fiscal
quarters by (b) Total Interest Expense for that period.
1.1.74 "Interest Payment Date" means (in connection with Prime Rate Advances
and Base Rate Advances) the 22nd day of each calendar month or if that
is not a Business Day, the Business Day next following.
1.1.75 "ISDA Master Agreement" means an ISDA Master Agreement as published by
the International Swap Dealers Association, Inc., as amended or
replaced from time to time.
1.1.76 "Issuing Bank" means each Lender designated by the Agent after
consultation with CHC that issues L/Cs for and on behalf of the
Lenders under a Credit and, for the time being, means BNS.
1.1.77 "L/C" means a standby letter of credit, letter of guarantee or
commercial letter of credit in a form satisfactory to the Issuing Bank
issued by the Issuing Bank at the request of a Borrower in favour of a
third party to secure the payment or performance of an obligation of a
Restricted Party to the third party.
"Lease" means any arrangement by which a Restricted Party obtains the
use of an Aircraft of which it is not the owner for a term of more
than 12 months, including rights of renewal, in exchange for payment
to a person other than a Restricted Party, including but not limited
to a capital lease, an operating lease, a synthetic lease, the lease
aspect of a sale and leaseback transaction and the "lease in" aspect
of a "lease out, lease in" transaction. [Note: Section added by
Eleventh Amending Agreement]
1.1.78 "Lenders" means each of the persons listed on Schedule E and other
lenders that agree from time to time to become Lenders in accordance
with Article XIII of this Agreement, including the Credit A Lenders,
the Credit B Lenders, the Credit C Lenders, the Credit D Lenders and
the Credit E Lenders, and "Lender" means any one of the Lenders.
[Note: Section amended by Tenth Amending Agreement]
1.1.79 "LIBO Rate" means, for any LIBOR Period and LIBOR Advance, the average
of the interest rates expressed as a percentage per annum on the basis
of a 360 day year at which deposits in the relevant Approved Currency
are offered by the principal offices of the Schedule I Reference
Lenders in London, England in the London interbank market at 11:00
a.m. London time two Business Days before the first day of the LIBOR
Period for a period equal to the LIBOR Period and in an amount
approximately equal to the amount of the LIBOR Advance.
The LIBO Rate calculated as above shall be adjusted from day to day by
dividing it by a percentage equal to 100% minus the Eurocurrency
-16-
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 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.
1.1.80 "LIBOR Advance" means an advance in an Approved Currency other than
Cdn. Dollars bearing interest based on the LIBO Rate.
1.1.81 "LIBOR Period" means the period selected by the relevant Borrower for
a LIBOR Advance or the period applicable to the LIBOR Advance under
the terms of this Agreement.
1.1.82 "Majority Lenders" means Lenders holding, in the aggregate, a minimum
of 66 2/3% of the outstanding amount of the Commitments for all
Credits.
1.1.83 "Market Value" means for any Swap governed by an ISDA Master
Agreement, on any day, the amount (whether positive or negative)
expressed in Canadian Dollars that is determined by a Lender in good
faith in accordance with its customary practices as of the close of
business on that day as though that day was an "Early Termination
Date" and the "Transaction" was a "Terminated Transaction" in
accordance with the payment measure provided for in section 6(e)(i)(3)
of the 1992 ISDA Master Agreement (Multicurrency - Cross Border).
"Early Termination Date," "Transaction" and "Terminated Transaction"
have the meanings defined in that ISDA Master Agreement.
1.1.84 "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 $5,000,000 per annum; or
(b) to which a Restricted Party is a party that, if terminated,
would materially impair the ability of any Restricted Party to
carry on business in the ordinary course or would have a
material adverse effect on the financial condition or business
prospects of the Restricted Parties as a whole.
-17-
1.1.85 "Material Permit" means any Permit:
(a) that is required to operate Aircraft, including but not limited
to those located in the United Kingdom and Norway;
(b) 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 $1,000,000 per annum; or
(c) issued to a Restricted Party that, if terminated, would
materially impair the ability of any Restricted Party to carry
on business in the ordinary course or would have a material
adverse effect on the financial condition or business prospects
of the Restricted Parties as a whole.
1.1.86 "Net Capital Expenditures" means, for any period, the aggregate of all
capital expenditures during the period, excluding those that are (a)
made with proceeds of dispositions of Aircraft or proceeds reasonably
attributable to Aircraft in the disposition of Capital Stock of a
Restricted Party whose Property consists primarily or substantially of
Aircraft, (b) made with proceeds of insurance and other compensation
for the expropriation, condemnation, destruction, damage or other loss
of Property, or (c) financed (other than with Advances) on terms
satisfactory to the Lenders, in each case during the period.
1.1.87 "Net Worth" means, at any time, CHC's consolidated shareholders'
equity at that time.
1.1.88 "1987 Debentures" means the 8% convertible subordinated debentures due
2007 issued under the trust indenture dated as of 20 August 1987
between CHC and National Trust Company as trustee, as amended.
1.1.89 "Norwegian Kroner" and "NOK" mean lawful money of the Kingdom of
Norway.
1.1.90 "Obligations" means all obligations of the Borrowers to the Lenders
under or in connection with this Agreement, 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
Borrowers to the Lenders in any currency or remaining unpaid by the
Borrowers to the Lenders in any currency under or in connection with
this Agreement, whether arising from dealings between the Lenders and
the Borrowers or from any other dealings or proceedings by which the
Lenders may be or become in any manner whatever creditors of the
Borrowers under or in connection with this Agreement, and wherever
incurred, and whether incurred by the Borrowers alone or with another
or others and whether as principal or surety, and all interest, fees,
legal and other costs, charges and expenses. In this definition, "the
Borrowers" shall be interpreted as "the
-18-
Borrowers, or any of them" and "the Lenders" shall be interpreted as
"the Lenders, or any of them."
1.1.91 "Other Secured Obligations" has the meaning defined in Section 6.2.
1.1.92 "Parts" means any and all parts, accessories and assemblies for
Aircraft including, without limitation, any and all avionics,
furnishings, instruments, appurtenances, accessories, communication
and radar equipment, main rotor blades, engines, transmissions, main
rotor heads, tail rotor assemblies, intermediate gear boxes, servo
actuators, nodal beams, skid tubes, cockpit voice recorders and other
equipment of any kind or nature whatsoever (whether consumable,
repairable or non-repairable, spare parts or otherwise), whether or
not incorporated or installed in, attached to or forming part of any
Aircraft at a particular time.
1.1.93 "Pending Event of Default" means an event which would constitute an
Event of Default hereunder, except for satisfaction of any requirement
for giving of notice, lapse of time, or both, or any other condition
subsequent to such event. Without limiting the foregoing, it shall be
a Pending Event of Default if there are objectively ascertainable and
measurable grounds to warrant a finding by the Majority Lenders,
acting reasonably, that CHC will not be in compliance with the
financial covenants contained in Section 10.2 at the end of its
current fiscal quarter, or was not in compliance with those covenants
at the end of its immediately preceding fiscal quarter if it has not
delivered its Reporting Certificate for that quarter.
1.1.94 "Pension Plan" means (a) a "pension plan" or "plan" which is subject
to the funding requirements of the Pension Benefits Standards Act
(Canada) or any applicable pension benefits legislation in any other
jurisdiction of Canada and is applicable to employees resident in
Canada of any Restricted Party, or (b) any pension benefit plan or
similar arrangement applicable to employees of any Restricted Party.
1.1.95 "Permits" means governmental licenses, certificates, authorizations,
consents, registrations, exemptions, permits and other approvals
required by law.
1.1.96 "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
-19-
which has been covered by arrangements satisfactory to the
Majority Lenders;
(b) undetermined or inchoate Encumbrances, rights of distress and
charges incidental to current operations which have not at such
time been filed or exercised and of which none of the Lenders
has been given notice, or which relate to obligations not due
or payable or if due, the validity of which is being contested
diligently and in good faith by appropriate proceedings by that
person;
(c) reservations, limitations, provisos and conditions expressed in
any original grants from the Crown or other grants of real or
immovable property, or interests therein, which do not in the
opinion of the Majority Lenders acting reasonably materially
affect the use of the affected land for the purpose for which
it is used by that person;
(d) licenses, easements, rights-of-way and rights in the nature of
easements (including, without limiting the generality of the
foregoing, licenses, easements, rights-of-way and rights in the
nature of easements for sidewalks, public ways, sewers, drains,
gas, steam and water mains or electric light and power, or
telephone and telegraph conduits, poles, wires and cables) and
zoning, land use and building restrictions, by-laws,
regulations and ordinances of federal, provincial, municipal
and other governmental authorities, which will not in the
opinion of the Majority Lenders acting reasonably materially
impair the use of the affected land for the purpose for which
it is used by that person;
(e) title defects, encroachments or irregularities which are of a
minor nature and which in the aggregate will not in the opinion
of the Majority Lenders acting reasonably materially impair the
use of the affected property for the purpose for which it is
used by that person;
(f) the right reserved to or vested in any 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, tenders or
expropriation proceedings, or to secure workers' compensation,
unemployment insurance, surety or appeal bonds, costs of
litigation when required by law, liens and
-20-
claims incidental to current construction, mechanics',
warehousemen's, carriers' and other similar liens, and public,
statutory and other like obligations incurred in the ordinary
course of business;
(h) security given to a public utility or any 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;
(i) the Security;
(j) the Encumbrance created by a judgment of a court of competent
jurisdiction, as long as the judgment is being contested
diligently and in good faith by appropriate proceedings by that
person and does not result in an Event of Default;
(k) Encumbrances on equipment (other than Aircraft) and the
proceeds thereof created or assumed to finance the acquisition
or improvement or secure the unpaid purchase price thereof
(including the principal amount of any capital lease), to a
maximum aggregate principal amount of $1,000,000 for all
Restricted Parties at any time; [Note: Section amended by
Eleventh Amending Agreement]
(l) a pledge of the Capital Stock of CHC Helicopter Holdings
Limited to secure the 1987 Debentures;
(m) aircraft mortgage by Bond in favour of General Electric Capital
Equipment Finance Inc. under which a charge of aircraft G-DRNT
(serial number 760201) is created as collateral security for
CHL's obligations relating to a lease of an Aircraft located in
Saudi Arabia [Note: Section amended by Second and Eleventh
Amending Agreements]
(n) [Note: Section deleted by Eleventh Amending Agreement]
(o) Encumbrances on real estate in Norway owned by Restricted
Parties to secure a loan in favour of HSG by Norgeskreditt AS,
provided that the principal amount of the loan is not increased
and the security is not changed from that which existed on 15
October 1999;
(p) Encumbrances on any new or refurbished Part in favour of the
provider of power-by-the-hour maintenance support which will be
released once the Restricted Party which owns or controls the
relevant Aircraft has delivered clear title to a corresponding
used Part that has been removed from the Aircraft in
furtherance of the
-21-
maintenance obligations and Parts exchange described in
Schedule M;
(q) Encumbrances of Aircraft that are subject to:
(i) operating leases existing at 2 August 1999 and not
refinanced with the proceeds of Advances, including but
not limited to the operating leases of Aircraft
described on Schedule O; [Note: Section amended by
Eleventh Amending Agreement]
(ii) any refinancings or replacements of the operating
leases of Aircraft described on Schedule O, relating to
the same Aircraft provided that the principal amount
financed for any Aircraft is not increased;
(iii) other operating leases for a term of less than two
years with aggregate payments for all such other leases
of less than $1,000,000 per annum that are not intended
as financing arrangements;
(iv) operating leases of Aircraft that do not fall within
items (i) to (iii) immediately above, provided that CHC
gives the Agent prior written notice of entering into
any such operating lease and includes with its notice a
calculation demonstrating that it would have been in
compliance with the Adjusted Total Debt Ratio for the
fiscal period in respect of which it has most recently
submitted a Reporting Certificate even if the numerator
and denominator used in calculating the Adjusted Total
Debt Ratio had each been increased to take into account
the lease payments and/or purchase option price in
respect of such operating lease and any other operating
leases that were not reflected in that calculation and
have since been entered into; and [Note: Section
amended by Eleventh Amending Agreement]
(v) Leases arising from transactions permitted by Section
10.6.2(e)(ii)(B); [Note: Section amended by Eleventh
Amending Agreement]
(r) existing chattel mortgages of Aircraft identified as C-GDUF,
C-GCEC, C-GNZR and C-GQEX owned by CHL to secure payment of
annual consulting fees and expenses to Xxxxxxx Xxxxxx and Xxxx
Xxxxxx of $210,000 and $35,000, respectively, for life,
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which are proposed to be replaced with a chattel mortgage of
the Aircraft identified as C-GTLC;
(s) other Encumbrances agreed to in writing by the Majority
Lenders.
(t) assignments in favour of Eurocopter S.A. and other arm's-length
subordinate lenders of proceeds of sale of Aircraft that are
subject to operating leases described in item (q) above to
secure repayment of any rental down payment or junior loan
financed by such lenders that is otherwise without recourse to
the Restricted Parties [Note: Section added by Third Amending
Agreement]
(u) cash collateral which may be delivered by CHC from time to time
to a Lender which is the counterparty under one or more Swaps
in the form of equity forward contracts entered into by CHC to
hedge exposure under stock appreciation rights granted to
employees and directors of the Restricted Parties, provided
that the cash collateral does not at any time exceed an
aggregate of $13,000,000 and the Swaps do not at any time
relate to an aggregate of more than 630,000 Class A shares of
CHC [Note: Section added by Seventh Amending Agreement]
1.1.97 "Permitted Obligations" means the following:
(a) the Obligations;
(b) the Other Secured Obligations;
(c) Intercompany Obligations;
(d) CHC's $250,000 convertible promissory note dated 1 June 1999 in
favour of BNS;
(e) other debts, liabilities and obligations secured by Permitted
Encumbrances, other than the Security, including the 1987
Debentures;
(f) the 2000 Notes and the 2004 Notes; [Note: Section amended by
Twelfth Amending Agreement]
(g) reimbursement obligations in connection with a US $25,000,000
letter of credit issued by Bank of Scotland in connection with
the Maersk Oil contract and a SAR 2,000,000 letter of credit
issued by BNS in favour of Gulf Bank KSC, Kuwait in connection
with a contract to transport employees of the Arabian Oil
Company Limited, provided that the respective issuers hold
indemnifications of Export Development Corporation;
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(h) an unsecured revolving operating credit extended to Brintel by
Bank of Scotland in an amount of up to (pound)1,000,000, as
existing at the date of this Agreement;
(i) current accounts payable, accrued expenses and other debts,
liabilities and obligations incurred in the ordinary course of
business which do not constitute Debt;
(j) deferred taxes;
(k) obligations arising from guarantees by one Restricted Party of
debts, liabilities and obligations of another Restricted Party
that are themselves Permitted Obligations;
(l) operating credits (i) in the amount of NOK 25,000,000 from a
Norwegian bank (currently Christiania Bank og Kreditkasse ASA)
in favour of HSAS, (ii) in the amount of 7,000,000 South
African Rand from a South African bank (currently First
National Bank of South Africa Limited) in favour of Court
Helicopters (Proprietary) Ltd., (iii) in the amount of
7,350,000 South African Rand from a South African bank
(currently ABSA Bank Limited) in favour of Court Helicopters
(Proprietary) Ltd., and (iv) in the amount of (pound)1,500,000
from Bank of Scotland in favour of Bond as existing at 5 July
2000 that, in each case, are either unsecured or secured by an
L/C issued under a Credit, and other operating credits provided
to Restricted Parties other than CHC that are secured by an L/C
issued for the account of CHC under Credit B and are otherwise
unsecured, it being acknowledged that amounts drawn under items
(i) to (iv) will reduce the amount that can be drawn by the
European Borrowers under Credit B [Note: Section amended by
First and Third Amending Agreements]
(m) Debt of HSG to HSG Reinsurance S.A. of NOK 15,750,000 pursuant
to a loan agreement dated 26 May 1999, NOK 6,000,000 pursuant
to a loan agreement dated 15 May 2000, and US $1,000,000
pursuant to a loan agreement dated 15 May 2000;
(n) the Discovery Note;
(o) obligations arising from the guarantee by a Restricted Party of
performance obligations of a Person that is partially owned by
or has entered into a joint venture with, and operates Aircraft
owned or controlled by, a Restricted Party, to the extent any
such guarantee is required in the ordinary course of obtaining
contracts in favour of that Person;
(p) other debts, liabilities and obligations expressly permitted
under this Agreement or consented to by the Majority Lenders in
writing.
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1.1.98 "Person" or "person" means any individual, corporation, company,
partnership, unincorporated association, trust, joint venture, estate
or other juridical entity or any governmental body.
1.1.99 "Pledged Shares" means the Capital Stock of the Restricted Parties
that is pledged as part of the Security from time to time.
1.1.100 "Prime Rate" means, on any day, the greater of:
(a) the average of the annual rates of interest expressed as a
percentage per annum announced by the Schedule I Reference
Lenders on that day as their respective reference rates for
commercial loans made by them in Canada in Canadian Dollars;
and
(b) the average rate for 30 day Canadian Dollar bankers'
acceptances that appears on the Reuters Screen CDOR Page at
10:00 a.m. Toronto time on that day, plus 0.75% per annum.
1.1.101 "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.
1.1.102 "Property" means, with respect to any person, any or all of its
undertaking, property and assets including, but not limited to,
Capital Stock held by that person in any other person.
1.1.103 "Proportionate Share" means the percentage of the maximum amount of
any Credit which a Lender has agreed to advance to a Borrower, as set
out on Schedule E, which shall be amended and distributed to all
parties by the Agent from time to time as other persons become
Lenders.
1.1.104 "Register" has the meaning defined in Section 13.2.3.
1.1.105 "Reporting Certificate" means a certificate in the form of Schedule C.
1.1.106 "Requirement of Law" means, as to any person, any law, treaty,
regulation, ordinance, decree, judgment, order or similar requirement
made or issued under sovereign, judicial or statutory authority and
applicable to or binding upon that person, or to which that person or
any of its Property is subject.
1.1.107 "Restricted Payment" means any payment to (a) pay dividends, (b) issue
bonuses on Capital Stock, (c) redeem or purchase Capital Stock, (d)
make principal or cash interest payments on Debt owing to
shareholders, affiliated corporations or associates of shareholders or
affiliated corporations, including the Discovery Note in the case of
CHC, or (e) pay management fees or make distributions to shareholders,
affiliated
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corporations or associates of shareholders or affiliated corporations
or engage in any other method of returning capital to direct or
indirect holders of Capital Stock.
1.1.108 "Restricted Parties" means CHC, the Subsidiaries of CHC listed on
Schedule N and other Subsidiaries of CHC that may become Restricted
Parties in accordance with this Agreement, and "Restricted Party"
means any of them.
1.1.109 "Schedule" means the designated schedule of this Agreement.
1.1.110 "Schedule I Reference Lenders" means the Lenders which are banks
chartered under and referred to in Schedule I of the Bank Act (Canada)
and which have been designated as such or deemed to be Schedule I
Reference Lenders in accordance with Section 8.13.
1.1.111 "Schedule II Reference Lenders" means the Lenders which are banks
chartered under and referred to in Schedule II of the Bank Act
(Canada) and which have been designated as such or deemed to be
Schedule II Reference Lenders in accordance with Section 8.13.
"Xxxxxxxxx" means Xxxxxxxxx Luchtvaart Groep B.V., a private limited
liability company established under the laws of the Netherlands.
[Note: Section added by Tenth Amending Agreement]
"Xxxxxxxxx Acquisition" means the acquisition by CHC Netherlands B.V.
of all of the issued and outstanding Capital Stock of Xxxxxxxxx.
[Note: Section added by Tenth Amending Agreement]
1.1.112 "Section" means the designated section of this Agreement.
1.1.113 "Security" means the security held from time to time by or on behalf
of the Lenders, securing or intended to secure repayment of the
Obligations, the Intercompany Obligations and/or the Other Secured
Obligations, including without limitation the security described in
Section 6.1.
1.1.114 "Senior Debt Ratio" means, at any time, the ratio calculated by
dividing (a) Total Debt excluding that part not ranking, or capable of
ranking, senior to or pari passu with the Obligations, by (b) EBITDA
for CHC's four most recently completed fiscal quarters.
1.1.115 "Sub Debt" means, collectively, the 1987 Debentures, the 2000 Notes
and the 2004 Notes. [Note: Section amended by Twelfth Amending
Agreement]
1.1.116 "Sub Debt Indentures" means, collectively, the indentures under which
the Sub Debt has been issued.
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1.1.117 "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 Subsidiary of the Restricted Party has the
right to make or control management decisions.
1.1.118 "Successor Agent" has the meaning defined in Section 12.11.
1.1.119 "Swap" means (a) any cap, collar, floor or other option, (b) any
forward contract, (c) any swap or contract for differences, (d) any
other agreement of a type commonly considered to be a derivative, or
(e) any combination of any of those agreements, in each case whether
relating to interest, currencies, commodities, securities or
otherwise. [Note: Section amended by Seventh Amending Agreement]
1.1.120 "Systems" means all computer software, hardware and other products
incorporating embedded software or microcode, used in operating
Property or carrying on business, including but not limited to
financial, production and order processing systems.
1.1.121 "Taxes" means all taxes, levies, imposts, stamp taxes, duties,
deductions, withholdings and similar impositions payable, levied,
collected, withheld or assessed as of the date of this Agreement or at
any time in the future, including any interest and penalties thereon,
and "Tax" shall have a corresponding meaning.
1.1.122 "Total Debt" means the aggregate, without duplication, of all Debt of
CHC on a consolidated basis, calculated in accordance with GAAP unless
otherwise expressly described.
1.1.123 "Total Debt Ratio" means, at any time, the ratio calculated by
dividing (a) Total Debt by (b) EBITDA for CHC's four most recently
completed fiscal quarters.
1.1.124 "Total Interest Expense" means, for any period, without duplication,
the aggregate expense incurred by CHC on a consolidated basis for
interest and equivalent costs of borrowing, including but not limited
to (a) Bankers' Acceptance fees, (b) discounts on Bankers'
Acceptances, (c) the interest portion of any capital lease and (d) all
fees and other compensation paid to any person that has extended
credit to the Restricted Parties, but excluding any upfront, extension
and similar non-recurring fees paid to the Agent or Lenders or to
their respective affiliates in connection with other Debt, in each
case whether or not actually paid (unless paid by the issuance of
securities constituting part of Total Debt), and calculated in
accordance with GAAP.
"Tranche 1" has the meaning defined in Section 5A.1. [Note: Section
added by Tenth Amending Agreement]
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"Tranche 2" has the meaning defined in Section 5A.1. [Note: Section
added by Tenth Amending Agreement]
"Tranche 3" has the meaning defined in Section 5A.1. [Note: Section
added by Tenth Amending Agreement]
1.1.125 "2000 Notes" means the 11.75% senior subordinated notes due 2007
issued under the trust indenture dated as of 5 July 2000 between CHC,
other Restricted Parties and The Bank of New York as trustee.
"2004 Notes" means the 7.375% senior subordinated notes due 2014 in
the aggregate principal amount of US $250,000,000 issued under the
trust indenture dated as of 27 April 2004 between CHC, other
Restricted Parties and The Bank of New York as trustee. For greater
certainty, the 2004 Notes do not include any "Additional Notes" as
defined in that indenture. [Note: Section added by Twelfth Amending
Agreement]
1.1.126 "US Dollars" and "US $" mean lawful money of the United States of
America.
1.1.127 "Vinland" means Vinland Holdings AS, a corporation constituted
pursuant to the corporate laws of Norway, formerly known as Vinland
Helicopters AS. [Note: Section amended by Eleventh Amending Agreement]
1.1.128 "Welfare Plan" means any medical, health, hospitalization, insurance
or other employee benefit or welfare plan, agreement or arrangement
applicable to employees of any Restricted Party.
1.1.129 "Year 2000 Compliance" means that all Systems (a) are designed to be
used prior to, during and after the calendar year 2000 A.D. without
error relating to date data, and shall operate transparently to the
user during those time periods, (a) are capable of operating without
error relating to the product of date data which represents or refers
to different centuries or more than one century, (c) correctly
recognize the year 2000 as a leap year, (d) do not use date fields as
indicators or for purposes other than to store valid dates and (e) are
designed so that all data fields, date-related user interfaces, and
other interfaces include the indication of century, and "Year 2000
Compliant" shall have a corresponding meaning.
1.2 Amendment and Restatement
This Agreement is and shall for all purposes be deemed to be an
amendment and restatement of the provisions of the Existing Credit Agreement.
This Agreement shall supersede the Existing Credit Agreement insofar as it
constitutes the entire agreement between the parties concerning the subject
matter of this Agreement, but does not constitute a novation of the Existing
Credit Agreement.
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Except for Advances under the Existing Credit Agreement that will be
repaid from the proceeds of the 2000 Notes as a condition precedent of this
Agreement (being all Advances under Credits A and B and some Advances under
Credit C established in the Existing Credit Agreement), all Advances pursuant to
the Existing Credit Agreement shall be deemed to be Advances under this
Agreement as more specifically provided in Sections 2.3, 4.3 and 5.3, and all of
the Obligations (as defined in the Existing Credit Agreement) shall be deemed to
be Obligations under this Agreement.
Without in any way limiting the terms of the Existing Credit Agreement
or the other Credit Documents, the Restricted Parties confirm that the existing
Security shall continue to secure all of the Obligations, Intercompany
Obligations and Other Secured Obligations (or such part of them as is described
in any particular document forming part of the Security), including but not
limited to those arising as a result of this Agreement. Any references in the
Security or other Credit Documents to the Existing Credit Agreement or section
numbers in the Existing Credit Agreement shall be interpreted as referring to
this Agreement and the corresponding Sections of it.
ARTICLE II
CREDIT A
2.1 Amount and Availment Options
2.1.1 Upon and subject to the terms and conditions of this Agreement, the
Credit A Lenders agree to provide a credit for the use of CHC in the amount of
up to US $40,000,000 or the equivalent thereof in other relevant Approved
Currencies, which is referred to collectively as Credit A and is comprised of a
tranche of US $33,000,000 referred to as Credit A1 and a tranche of US
$7,000,000 referred to as Credit A2. Subject to Section 8.1, Advances under
Credit A1 will be made by the Credit A Lenders and Advances under Credit A2 will
be made by BNS.
2.1.2 At the option of CHC, Credit A1 may be used by requesting Prime Rate
Advances to be made by the Credit A Lenders, by requesting Base Rate (US)
Advances to be made by the Credit A Lenders, by presenting orders to the Credit
A Lenders for acceptance as Bankers' Acceptances, by requesting that LIBOR
Advances in US Dollars be made by the Credit A Lenders, or by requesting that
L/Cs be issued by the Issuing Bank on behalf of all Credit A Lenders. The
aggregate face amount of L/Cs outstanding under Credit A at any time shall not,
however, exceed US $15,000,000 or the equivalent thereof in other Approved
Currencies.
2.1.3 Credit A2 may be used by incurring overdrafts in its accounts with
BNS, which shall be deemed to be Prime Rate Advances in the case of Canadian
Dollar overdrafts and Base Rate (US) Advances in the case of US Dollar
overdrafts.
2.2 Revolving Credit
Credit A is a revolving credit and the principal amount of any Advance
under Credit A that is repaid may be reborrowed if CHC is otherwise entitled to
an Advance under Credit A.
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2.3 Use of Credit A
Credit A shall be used by CHC as follows:
(a) to continue Advances made to CHC under Credit C in the Existing
Credit Agreement, to the extent of the balance remaining under
that Credit after repayments made from the net proceeds of the
2000 Notes and after allocation of Advances under the Existing
Credit Agreement to Credits C and D under this Agreement;
(b) as to the balance, to assist in financing the general corporate
requirements of the Restricted Parties.
2.4 Term and Repayment
Credit A shall be repaid in full and cancelled on or before 15 July
2005.
2.5 Interest Rates and Fees
Interest rates, Bankers' Acceptance fees and fees for L/Cs will be
adjusted based on the Total Debt Ratio and will be as follows:
BA Fee
Prime Rate + LIBOR +
Base Rate + L/C Fee
Total Debt Ratio (% per annum) (% per annum)
---------------- ------------- -------------
=> 5.00:1 2.25 3.25
=> 4.50:1, < 5.00:1 2.00 3.00
=> 4.00:1, < 4.50:1 1.50 2.50
=> 3.50:1, < 4.00:1 1.00 2.00
=> 3.00:1, < 3.50:1 0.75 1.75
=> 2.75:1, < 3.00:1 0.50 1.50
=> 2.50:1, < 2.75:1 0.25 1.25
=> 2.25:1, < 2.50:1 0.125 1.125
< 2.25:1 Nil 1.00
[Note: Section amended by Ninth Amending Agreement]
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All figures (other than those under "Total Debt Ratio") represent per
cent per annum. Interest on Prime Rate Advances and Base Rate Advances shall be
the Prime Rate or the relevant Base Rate, respectively, plus the relevant figure
shown under "Prime Rate + / Base Rate +" above. The Bankers' Acceptance Fee
shall be the relevant figure shown under "BA Fee / LIBOR + / L/C Fee" above.
Interest on LIBOR Advances shall be the relevant LIBO Rate plus the relevant
figure shown under "BA Fee / LIBOR + / L/C Fee" above. The fee for L/Cs shall be
the relevant figure shown under "BA Fee / LIBOR + / L/C Fee" above.
Any increase or decrease in the interest rates and fees resulting from
a change in the Total Debt Ratio shall be effective as of the date on which a
Reporting Certificate concerning the calculation of the ratio was due, except
that if a Reporting Certificate is late, any resulting decrease shall be
effective only as of the date that a Reporting Certificate satisfactory to the
Agent is actually received by the Agent. Fees relating to Bankers' Acceptances
and L/Cs advanced before the effective date of an increase or decrease will not
be adjusted. Interest rates and fees for the period from the first Advance under
this Agreement until the date of receipt by the Agent of a satisfactory
Reporting Certificate for the fiscal period ending 30 April 2000 shall be based
on a Total Debt Ratio of greater than 4.50 to 1 and less than 5.00 to 1.
Interest and fees for Credit A1 shall be promptly distributed by the
Agent to the Credit A Lenders based on their respective Proportionate Shares as
adjusted in accordance with Section 8.2. Subject to Section 8.1, interest for
Credit A2 shall paid to BNS for its own account. In addition, a fronting fee on
the amount of each L/C will be payable to the Issuing Bank for its own account
in accordance with the Fee Agreement or otherwise.
2.6 Standby Fees
CHC shall pay a standby fee on the daily unadvanced portion of Credit
A at a rate of 0.50% per annum. The standby fee shall be calculated daily
beginning on the date of the initial Advance under this Agreement and shall be
payable on the first Business Day of each of January, April, July and October in
respect of the preceding calendar quarter, beginning on 1 October 2000. Upon
final payment of the Obligations under Credit A, CHC shall also pay the accrued
standby fee for the elapsed portion of the quarter in which final payment is
made. Standby fees for Credit A1 shall be promptly distributed by the Agent to
the Credit A Lenders based on their respective Proportionate Shares as adjusted
in accordance with Section 8.2. Subject to Section 8.1, standby fees for Credit
A2 shall paid to BNS for its own account.
2.7 Other Fees
CHC shall, concurrently with the execution of this Agreement, pay
non-refundable upfront and other fees to the Agent in accordance with the Fee
Agreement, and the Agent shall pay upfront fees to the other Lenders in
accordance with agreements between the Agent and the other Lenders. Such fees
shall be paid by CHC on behalf of itself, CHL and ATI.
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CHC shall also pay annual agency fees to the Agent in accordance with
the Fee Agreement.
2.8 Existing L/Cs
All letters of credit issued by BNS for the account of CHL pursuant to
its credit arrangements with CHL that existed before the Existing Credit
Agreement and that remain outstanding as of the date of the initial Advance
under Credit A shall be deemed to have been issued by BNS for the account of CHC
and to be L/Cs under this Agreement. CHC hereby confirms its assumption under
the Existing Credit Agreement of all of the present and future debts,
liabilities and obligations of CHL under and in connection with the letters of
credit referred to above and agrees with the Credit A Lenders to pay and perform
all of those debts, liabilities and obligations in accordance with this
Agreement.
ARTICLE III
CREDIT B
3.1 Amount and Availment Options
3.1.1 Upon and subject to the terms and conditions of this Agreement, the
Credit B Lenders agree to provide a credit for the use of the European Borrowers
and CHC in the amount of up to (pound)6,788,866 or the equivalent thereof in
other relevant Approved Currencies which is referred to collectively as Credit B
and is comprised of a tranche of (pound)4,788,866 referred to as Credit B1 and a
tranche of (pound)2,000,000 referred to as Credit B2. Subject to Section 8.1,
Advances under Credit B1 will be made by the Credit B Lenders and Advances under
Credit B2 will be made by BoS.
3.1.2 At the option of the European Borrowers, Credit B1 may be used by the
European Borrowers by requesting Base Rate (UK) Advances to be made by the
Credit B Lenders, by requesting Base Rate (US) Advances to be made by the Credit
B Lenders, by requesting that LIBOR Advances be made by the Credit B Lenders in
Approved Currencies other than Canadian Dollars, or by requesting that L/Cs be
issued by the Issuing Bank on behalf of all Credit B Lenders. The aggregate face
amount of L/Cs outstanding under Credit B1 at any time shall not, however,
exceed (pound)3,400,000 or the equivalent thereof in other relevant Approved
Currencies.
3.1.3 Credit B2 may be used by the European Borrowers incurring overdrafts
in British Pounds in their respective accounts with BoS, which shall be deemed
to be Base Rate (UK) Advances.
3.1.4 The aggregate principal amount of Advances of any kind to the European
Borrowers under Credit B shall be limited to the amount permitted pursuant to
clause 1008(b)(i) of the Sub Debt Indentures for each of the 2000 Notes (while
they remain outstanding) and the 2004 Notes. [Note: Section amended by Twelfth
Amending Agreement]
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3.1.5 CHC may use Credit B by requesting that L/Cs be issued by the Issuing
Bank on behalf of all Credit B Lenders, solely for the purpose of guaranteeing
obligations of other Restricted Parties under operating credits that are
otherwise unsecured. [Note: Section 3.1 amended by First, Third and Fourth
Amending Agreements]
3.2 Revolving Credit
Credit B is a revolving credit and the principal amount of any Advance
under Credit B that is repaid may be reborrowed if the European Borrowers are
otherwise entitled to an Advance under Credit B.
3.3 Use of Credit B
Credit B may be used to assist in financing the general corporate
requirements of the Restricted Parties.
3.4 Term and Repayment
Credit B shall be repaid in full and cancelled on or before 15 July
2005.
3.5 Interest Rates and Fees
Interest and fees shall be payable on Advances under Credit B at the
same rates specified in Section 2.5.
Interest and fees for Credit B1 shall be promptly distributed by the
Agent to the Credit B Lenders based on their respective Proportionate Shares as
adjusted in accordance with Section 8.2. Subject to Section 8.1, interest for
Credit B2 shall be paid to BoS for its own account. In addition, a fronting fee
on the amount of each L/C will be payable to the Issuing Bank for its own
account in accordance with the Fee Agreement or otherwise. [Note: Section
amended by Fourth Amending Agreement]
3.6 Standby Fees
The European Borrowers shall pay a standby fee on the daily unadvanced
portion of Credit B at a rate of 0.50% per annum. The standby fee shall be
calculated daily beginning on the date of the initial Advance under this
Agreement and shall be payable on the first Business Day of each of January,
April, July and October in respect of the preceding calendar quarter, beginning
on 1 October 2000. Upon final payment of the Obligations under Credit B, the
European Borrowers shall also pay the accrued standby fee for the elapsed
portion of the quarter in which final payment is made. Standby fees for Credit
B1 shall be promptly distributed by the Agent to the Credit B Lenders based on
their respective Proportionate Shares as adjusted in accordance with Section
8.2. Subject to Section 8.1, standby fees for Credit B2 shall be paid to BoS for
its own account. [Note: Section amended by Fourth Amending Agreement]
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3.7 Guarantee of CHC
CHC hereby unconditionally guarantees all of the present and future
Obligations of the European Borrowers, and each Restricted Party that has given
a guarantee of the Obligations of CHC acknowledges that its guarantee extends to
CHC's obligations under its guarantee. CHC shall, however, promptly deliver a
separate guarantee in a form comparable to the guarantees delivered by the
Restricted Parties.
ARTICLE IV
CREDIT C
4.1 Amount and Availment Options
Upon and subject to the terms and conditions of this Agreement, the
Credit C Lenders agree to provide a credit for the use of CHC in the amount of
(pound)51,000,000 or the equivalent thereof in other relevant Approved
Currencies. Credit C may be used by requesting Prime Rate Advances to be made by
the Credit C Lenders, by requesting Base Rate (US) Advances to be made by the
Credit C Lenders, by presenting orders to the Credit C Lenders for acceptance as
Bankers' Acceptances, or by requesting that LIBOR Advances be made by the Credit
C Lenders in Approved Currencies other than Canadian Dollars. [Note: Section
amended by First Amending Agreement]
4.2 Non-Revolving Credit
Credit C is a non-revolving credit and the principal amount of any
Advance under Credit C that is repaid may not be reborrowed.
4.3 Use of Credit C
Credit C shall be used by CHC to continue Advances made to CHC under
Credit C in the Existing Credit Agreement to the extent of Cdn. $126,293,000 and
no further funds shall be advanced thereafter.
4.4 Term and Repayment
The principal amount of Credit C shall be repaid and permanently
reduced to not greater than (pound)35,118,060 on the closing of the Canadian
Sale, taking into account the scheduled payment due on 31 October 2000.
Thereafter, it shall be repaid and permanently reduced by quarterly instalments
on the last Business Days of each of October, January, April and July of each
year, beginning in January 2001, in the following amounts:
Period Amount
January 2001 to July 2001 (pound)838,998 each
October 2001 to July 2002 (pound)1,246,511 each
Thereafter (pound)1,558,138 each
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Credit C shall, in any event, be repaid in full and cancelled on or
before 15 July 2005. [Note: Section amended by First and Second Amending
Agreements]
4.5 Prepayments of Credits
4.5.1 It shall be an event of failure under this Agreement if:
(a) a Restricted Party sells or otherwise disposes of any part of
its Property having a value for all Restricted Parties in
excess of an aggregate of $250,000 per annum (including by way
of lease with an option to purchase at less than fair market
value), other than to another Restricted Party and other than
if it sells inventory either in the ordinary course of its
business or in sales of not greater than $2,000,000 each to
dispose of inventory in excess of that required for its
operating requirements, including its repair and overhaul
business;
(b) any Property of a Restricted Party is expropriated, condemned,
destroyed, damaged or otherwise lost.
4.5.2 If an event of failure occurs, CHC shall offer to repay Advances under
Credits C, D and E equal to: [Note: Section amended by Fourth Amending
Agreement]
(a) 100% of the proceeds of the Canadian Sale, net of all direct
out of pocket fees, commissions and other costs of the sale,
net of the amount that CHC is required to invest in the
purchaser under the terms of the Canadian Sale and net of an
allowance determined by CHC's auditors and approved by the
Agent for future income tax payable by CHC as a result of the
capital gain or income from the Canadian Sale; for greater
certainty, the proceeds include any post-closing payments and
all amounts received on account of principal under the
$10,000,000 loan made by CHC to the purchaser in the Canadian
Sale, whether resulting from payment by the purchaser or
assignment of the loan to another lender; [Note: Section
amended by Second Amending Agreement]
(b) except for the Canadian Sale, 75% of the proceeds of all sales
and other dispositions of Aircraft (including leases with an
option to purchase at less than fair market value) and 75% of
the proceeds reasonably attributable to Aircraft in the sale or
other disposition of Capital Stock of a Restricted Party whose
Property consists primarily or substantially of Aircraft, in
each case net of all direct out-of-pocket costs of disposition,
net of an allowance determined by CHC's auditors and approved
by the Agent for future income tax payable by CHC as a result
of any capital gain or income from the disposition, and net of
all proceeds of dispositions used within
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12 months of receipt thereof to purchase additional Aircraft
and the value of Aircraft received in exchange for Aircraft
disposed of;
(c) any part of the remaining 25% of the proceeds of dispositions
referred to in item (b) above that would have to be used to
repay other Debt of the Restricted Parties under the terms of
any Sub Debt Indenture if not used to repay Credits C, D and
E; [Note: Section amended by Fourth Amending Agreement]
(d) 100% of the proceeds of all sales and other dispositions of
Property other than Aircraft and Capital Stock of a Restricted
Party (herein, "non-fleet assets") whose Property consists
primarily or substantially of Aircraft, net of all direct out
of pocket costs of disposition and net of an allowance
determined by CHC's auditors and approved by the Agent for
future income tax payable by CHC as a result of any capital
gain or income from the disposition; provided however that
proceeds of disposition of non-fleet assets not in excess of
$5,000,000 in each fiscal year of the Borrower may be retained
by the applicable Restricted Party or Parties so long as such
proceeds are re-invested in fixed assets within 12 months of
the date of such receipt thereof, failing which such proceeds
shall be paid to the Agent; [Note: Section amended by Ninth
Amending Agreement]
(e) 100% of the proceeds not reasonably attributable to Aircraft in
the sale or other disposition of Capital Stock of a Restricted
Party whose Property consists primarily or substantially of
Aircraft, net of all direct out-of-pocket costs of disposition
not covered above and net of an allowance determined by CHC's
auditors and approved by the Agent for future income tax
payable by CHC as a result of any capital gain or income from
the disposition;
(f) 100% of the proceeds of all insurance (other than liability or
business interruption insurance) and other compensation for the
expropriation, condemnation, destruction, damage or other loss
of any Property of a Restricted Party except to the extent such
proceeds are paid on account of the obligations secured by a
Permitted Encumbrance having priority over the Security or are
used to repair or replace the Property expropriated, condemned,
destroyed, damaged or otherwise lost or, in the case of
proceeds from the loss of or damage to Aircraft, used to
purchase additional Aircraft, in each case within 12 months
after the receipt thereof, and 100% of the proceeds of all
sales or other dispositions of Aircraft that are then leased
back by a Restricted Party, to the extent that the proceeds are
not used to purchase additional Aircraft within 12 months after
the receipt thereof. [Note: Section amended by Eleventh
Amending Agreement]
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The offer to repay Advances shall be made by CHC to the Agent immediately upon
receipt of the proceeds, or within 12 months thereof in the case of items (b)
and (f) above, and payment shall be made immediately upon acceptance of the
offer. The offer shall be accepted unless the Lenders unanimously agree
otherwise, in which case the proceeds may be retained by the relevant Restricted
Party or shall be used in accordance with any condition agreed upon by the
Lenders and CHC as a basis of the Lenders' agreement to decline repayment of
Advances. The Majority Lenders may require that proceeds referred to in items
(b) and (f) above be immediately used to repay Credits C, D and E if: [Note:
Section amended by Fourth Amending Agreement]
(g) an Event of Default or Pending Event of Default has occurred
and is continuing; or
(h) the Majority Lenders determine, acting reasonably, that the
proceeds of such insurance together with other resources
available and likely to become available to the Restricted
Parties (the use of which would not contravene this Agreement)
are not 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.
4.5.3 The following amounts shall be used to repay Credits A or B or both,
without prejudice to the Borrowers' right to obtain further Advances under those
Credits, unless otherwise specified in this Agreement:
(a) the allowances for future income tax contemplated in Section
4.5.2;
(b) the proceeds referred to in Sections 4.5.2(b), 4.5.2(d) and
4.5.2(f), to the extent that they are not immediately used to
repay Credits C and D, to repay obligations secured by a
Permitted Encumbrance having priority over the Security, to
purchase additional Aircraft, to re-invest in fixed assets or
to repair or replace the Property expropriated, condemned,
destroyed, damaged or otherwise lost; [Note: Section amended by
Ninth Amending Agreement]
(c) all proceeds of business interruption insurance held by a
Restricted Party.
If nothing is outstanding under Credits A and B, any remaining amounts shall be
held by the Agent as part of the Security until applied to payment of the
Obligations or released to the affected Restricted Party. The Agent shall place
all such funds in an interest-bearing account with the interest thereon to
accrue to the benefit of the affected Restricted Party.
4.5.4 In addition to other required repayments and reductions, the aggregate
amount available under Credits C, D and E shall be repaid and permanently
reduced pro
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rata, based on the outstanding principal amount at the time of payment, from the
following: [Note: Section amended by Fourth Amending Agreement]
(a) a portion of the Excess Cash Flow for each fiscal year of CHC;
the portion shall be 50% for each year at the end of which the
Total Debt to EBITDA Ratio is greater than 3.50 to 1 and 25%
otherwise; calculation and payment of the amount of such
payments shall be made not later than the last day of the first
fiscal quarter following the end of the fiscal year for which
such Excess Cash Flow is calculated; [Note: By the Fourth
Amending Agreement, the payment from Excess Cash Flow for CHC's
fiscal year ended 30 April 2001 that was required to be made
under Section 4.5.4 on or before 31 July 2001 was waived, but
all future payments from Excess Cash Flow remain payable]
(b) 100% of the proceeds of all equity issues made by CHC unless
otherwise agreed to by the Majority Lenders, net of all direct
out-of-pocket fees, commissions and other costs of issuance
(including closing costs); and [Note: In the Sixth Amending
Agreement, the Lenders agreed that notwithstanding Section
4.5.4(b) of the Existing Credit Agreement, the proceeds of
issuance of shares by CHC on 25 April 2002 need not be used to
repay Credits C and D].
(c) 100% of the proceeds of all debt issues by Restricted Parties,
net of all direct out-of-pocket fees, commissions and other
costs of issuance (including closing costs).
[Note: In the Twelfth Amending Agreement, notwithstanding Section 4.5.4(c), the
Lenders consented to the net proceeds of the issuance of the 2004 Notes being
used to redeem the 2000 Notes at a price of up to 107.85%, to redeem the 1987
Debenture and to repay Encumbrances on real estate in Norway, all as more fully
described in amendments to the Credit Agreement before being used to repay
Credits C, D and/or E]
4.5.5 Notwithstanding the principal payments contemplated in Sections 4.5.4
and 5.4, the aggregate amount of all mandatory principal payments under Credit D
within the first five years following the date of the initial Advance of Credit
D (i.e. 5 July 2000) shall not exceed the lesser of US $22,500,000 (determined
based on the Exchange Rate in effect on any particular date of payment) and
(pound) 15,200,648.56, except for payments required as a result of an Event of
Default or event of failure. If the preceding sentence would prevent a mandatory
payment in respect of Credit D, CHC may make a voluntary payment in respect of
Credit D, failing which the principal payment that would have been paid in
respect of Credit D if not prevented by the preceding sentence shall instead be
paid in respect of Credit C as long as it remains outstanding and thereafter
shall be applied to repay and permanently reduce Credits A and B on a pro rata
basis based on the maximum amount of those Credits at the time of payment.
[Note: Section amended by First Amending Agreement. In the Twelfth Amending
Agreement, CHC elected to make a
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voluntary payment in respect of Credit D rather than an additional payment in
respect of Credit C to the extent that the first sentence in Section 4.5.5 would
prevent a mandatory payment in respect of Credit D.]
4.5.6 Voluntary prepayments on Credits C, D and/or E, other than those
contemplated in Section 4.5.5, shall be applied to Credits C, D and E on a pro
rata basis, based on the outstanding principal amount at the time of payment,
and shall be applied to reduce the scheduled instalments of Credits C, D and E,
including the payment due on maturity, on a pro rata basis, except that
voluntary prepayments, other than those contemplated in Section 4.5.5, may first
be applied on a pro rata basis against the next quarterly instalment of each of
Credits C, D and E. Mandatory prepayments and proceeds of offers to repay
Advances upon an event of failure shall be applied to reduce the scheduled
instalments of Credits C, D and E, including the payment due on maturity, on a
pro rata basis. If any scheduled instalment of Credit D is prevented by reason
of Section 4.5.5, the reduction that would otherwise have been made to that
instalment shall instead be made pro rata to the corresponding scheduled
instalments of Credits C and E. [Note: Section amended by Fourth and Tenth
Amending Agreements. In the Eleventh Amending Agreement, the Lenders confirmed
their consent to CHC making a voluntary prepayment of (pound) 334,049 on or
about 31 January 2004, which was applied only against Credit C, notwithstanding
Section 4.5.6. The Lenders also confirmed their acceptance of CHC's position
(more fully explained in its letter to the Lenders dated 26 January 2004) that
the portion of Credit C that related to refinancing of the cost of acquisition
of Brintel Holdings Limited has now been repaid, and that, accordingly,
whitewash procedures that were required because a portion of Credit C related to
that refinancing are no longer required. In the Twelfth Amending Agreement,
notwithstanding Section 4.5.6, the Lenders agreed that only Tranche 3 of Credit
E would be considered in determining the prorating of the payment over Credits
C, D and E.]
4.5.7 The provisions of this Section concerning use of proceeds shall not
affect any provision of this Agreement that requires the consent of the Lenders
or any of them to any sale or other matter contemplated above.
4.6 Interest Rates and Fees
Interest and fees shall be payable on Advances under Credit C at the
same rates specified in Section 2.5.
Interest and fees shall be promptly distributed by the Agent to the
Credit C Lenders based on their respective Proportionate Shares.
ARTICLE V
CREDIT D
5.1 Amount and Availment Options
The Credit D Lenders advanced the sum of US $90,000,000 to CHC on 5
July 2000. On 25 August 2000, CHC exercised its then-existing right to convert
the Advances under Credit D to British Pounds, resulting in Advances of
(pound)60,802,594.24
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being outstanding under Credit D by way of LIBOR Advances. Credit D may
hereafter be used by CHC requesting the Credit D Lenders to roll over and/or
convert existing Advances as LIBOR Advances and/or Base Rate (UK) Advances, but
no further funds shall be advanced under Credit D, nor shall there be any
further conversion of Advances under Credit D to other currencies. [Note:
Section amended by First Amending Agreement]
5.2 Non-Revolving Credit
Credit D is a non-revolving credit and the principal amount of any
Advance under Credit D that is repaid may not be reborrowed.
5.3 Use of Credit D
Credit D shall be used by CHC to continue Advances made to CHC under
Credit D in the Existing Credit Agreement to the extent of US $90,000,000 and no
further funds shall be advanced thereafter.
5.4 Term and Repayment
The principal amount of Credit D shall be repaid and
permanently reduced to not greater than (pound) 42,332,719.82 on the closing of
the Canadian Sale, taking into account the scheduled payment due on 31 October
2000. Thereafter, subject to Section 4.5.5, Credit D shall be repaid and
permanently reduced by quarterly instalments on the last Business Days of each
of October, January, April and July of each year, beginning in January 2001, in
the amount of (pound) 535,853.25 each. Credit D shall, in any event, be repaid
in full and cancelled on 15 July 2005. In addition to the scheduled repayments
and reductions, the aggregate amount available under Credits C and D shall be
repaid and permanently reduced pro rata in accordance with Section 4.5 [Note:
Section amended by First and Second Amending Agreements]
5.5 Interest Rates and Fees
Interest and fees shall be payable on Advances under Credit D at the
same rates specified in Section 2.5.
Interest and fees shall be promptly distributed by the Agent to the
Credit D Lenders based on their respective Proportionate Shares.
ARTICLE V-A
Credit E
5A.1 Amount and Availment Options
Upon and subject to the terms and conditions of this Agreement, the
Credit E Lenders agree to provide a credit for the use of CHC in the amount of
(euro) 93,634,192 or the equivalent amount in other Approved Currencies, which
will be
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comprised of a tranche of (euro) 22,000,000 referred to as "Tranche 1," a
tranche of (euro) 40,000,000 referred to as "Tranche 2" and a tranche of (euro)
31,634,192 referred to as "Tranche 3." Credit E may be used by requesting Prime
Rate Advances to be made by the Credit E Lenders, by requesting Base Rate (US)
Advances to be made by the Credit E Lenders, by presenting orders to the Credit
E Lenders for acceptance as Bankers' Acceptances, or by requesting that LIBOR
Advances be made by the Credit E Lenders in Approved Currencies other than
Canadian Dollars. Credit E has been fully advanced and only rollovers and
conversions are available. [Note: Section added by Fourth Amending Agreement and
amended by Tenth and Twelfth Amending Agreements]
5A.2 Non-Revolving Credit
Credit E is a non-revolving credit and the principal amount of any
Advance under Credit E that is repaid may not be reborrowed. [Note: Section
added by Fourth Amending Agreement]
5A.3 Use of Credit E
Tranche 1 shall be used by CHC to fund, through other Restricted
Parties including CHC Sweden AB, part of the purchase price for all of the
issued and outstanding shares of Xxxxxxxxx. Tranche 2 shall be used by CHC to
fund, through other Restricted Parties, the remainder of the purchase price for
all of the issued and outstanding shares of Xxxxxxxxx and to finance CHC's
transaction costs relating to the Xxxxxxxxx Acquisition. Tranche 3 shall be used
by CHC, directly or through other Restricted Parties, to refinance the existing
debt of Xxxxxxxxx and its Subsidiaries and to provide additional working capital
for CHC and the other Restricted Parties. To the extent that the proceeds of
Tranche 3 are not required by CHC on the date of the initial Advance under
Credit E, they may be used to repay Advances outstanding under Credit A, without
prejudice to CHC's ability to obtain further Advances under Credit A. [Note:
Section added by Fourth Amending Agreement and amended by Tenth and Twelfth
Amending Agreements]
5A.4 Term and Repayment
Credit E shall be repaid and permanently reduced by quarterly
instalments on the last Business Day of each of October, January, April and July
of each year, beginning in October 2004, in the amount of (euro)3,390,000 each.
Credit E shall, in any event, be repaid in full and cancelled on 15 July 2005.
In addition to the scheduled repayments and reductions, the aggregate amount
available under Credits C, D and E shall be repaid and permanently reduced pro
rata in accordance with Section 4.5. All payments in respect of Credit E that
are made before the occurrence of any event by which any of the Obligations
become due and payable under Section 11.2 shall be applied to Tranche 1 until it
has been repaid in full and then applied to Tranche 2 until it has been repaid
in full. [Note: Section added by Fourth Amending Agreement and amended by Fifth
and Tenth Amending Agreements. In the Twelfth Amending Agreement, the Lenders
consented to the prepayment of principal in respect of Credit E that is to be
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made from proceeds of issuance of the 2004 Notes being applied against Tranche 3
rather than Tranches 1 and 2.]
5A.5 Interest Rates and Fees
Interest and fees shall be payable on Advances under Credit E at the
same rates specified in Section 2.5. In addition, underwriting and other fees
shall be payable to the Credit E Lenders as agreed between CHC and the Credit E
Lenders. Interest and fees shall be promptly distributed by the Agent to the
Credit E Lenders based on their respective Proportionate Shares. [Note:
Paragraph added by Fourth Amending Agreement and amended by Tenth Amending
Agreement]
ARTICLE VI
SECURITY AND EXCHANGE RATE FLUCTUATIONS
6.1 Security
6.1.1 The Security includes the following, all in form and substance
satisfactory to the Lenders and subject only to Permitted Encumbrances:
(a) security over all present and future Property of each
Restricted Party in the form of a $750,000,000 debenture,
secured by a fixed charge over all material freehold and
leasehold real property (as determined by the Agent from time
to time) and all aircraft and a floating charge over all other
Property, and a general assignment of book debts, or equivalent
instruments encumbering all present and future Property in
other jurisdictions, by each Restricted Party in favour of the
Agent for the benefit of the Lenders;
(b) specific assignments of such Material Contracts as are
designated by the Agent from time to time, by the relevant
Restricted Parties in favour of the Agent for the benefit of
the Lenders;
(c) pledges in favour of the Agent for the benefit of the Lenders
of all Capital Stock of the Restricted Parties other than CHC
that is owned by the other Restricted Parties from time to
time;
(d) pledges in favour of the Agent for the benefit of the Lenders
of all Capital Stock of persons other than Restricted Parties
that is owned by the Restricted Parties from time to time;
(e) specific assignments in favour of the Agent for the benefit of
the Lenders of all Intercompany Obligations and any security
therefor from time to time;
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[Note: In the Eighth Amending Agreement and Consent, in
connection with the transfer by CHC Scotia Limited of its
overhaul services business and assets and its logistics and
base maintenance business and assets to Astec Helicopter
Service AS, the Lenders agreed that, notwithstanding Section
6.1.1(e), CHC Scotia Limited need not grant a specific
assignment of the Intercompany Obligation arising from the
promissory note to be given by Astec Helicopter Service AS to
CHC Scotia Limited in connection with the transfer, provided
that the promissory note is delivered to the Agent for
safekeeping and is subject to the floating charge previously
given by CHC Scotia Limited as part of the Security and that
Astec Helicopter Service AS grants a floating charge under
Scottish law in form and substance satisfactory to the Agent to
further secure the currently existing Intercompany Obligations
that have been assigned as part of the Security]
(f) unconditional guarantees of the Obligations by each of the
Restricted Parties (other than those Obligations in respect of
which it is the Borrower), either directly or by way of
guarantee of a guarantee given by another Restricted Party,
which guarantees shall be unlimited except for limits imposed
by applicable law.
Except for the companies listed in items 2, 3 and 12 of Schedule K, if
at any time CHC owns, establishes or acquires a Subsidiary that is wholly owned
by CHC, directly or indirectly, CHC 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. CHC shall
also deliver or cause the delivery of a pledge of all of the Capital Stock of
the new Subsidiary as part of the Security and cause the delivery of such legal
opinions and other supporting documents as the Agent may reasonably require.
[Note: In the Eighth Amending Agreement, in connection with the establishment of
Heliworld Leasing Ltd. as a wholly owned subsidiary of Brintel Holdings Limited,
the Lenders agreed that Heliworld Leasing Ltd. need not become a Restricted
Party, subject to certain conditions, including that it become a Restricted
Party if it was not sold to a third party with the consent of the Majority
Lenders before 15 July 2003]
If at any time any Restricted Party owns or obtains an interest in a
person that is not a wholly owned Subsidiary, CHC shall cause that interest to
immediately be pledged as part of the Security and cause the delivery of such
legal opinions and other supporting documents as the Agent may reasonably
require.
6.1.2 Notwithstanding the foregoing, if Requirements of Law or the terms of
any shareholders agreement affecting entities other than Restricted Parties
prevent a Restricted Party from granting Security as required above or require
that the scope or
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obligations secured by the Security be limited, the Security required above
shall be varied accordingly. In particular, the Lenders acknowledge that:
(a) the laws of Denmark and Norway in effect prevent Restricted
Parties incorporated in Denmark and Norway from guaranteeing or
providing security for the Obligations as they exist at the
date of this Agreement and the laws of Luxembourg in effect
prevent HSG Reinsurance S.A. from becoming a Restricted Party;
(b) although the Security given by the Danish and Norwegian
Restricted Parties at the date of this Agreement refers to
securing, among other things, debts, liabilities and
obligations of those Restricted Parties under or in connection
with this Agreement, those Restricted Parties are not currently
Borrowers and will not currently be guaranteeing or providing
security for the Obligations or Intercompany Obligations owed
by their direct or indirect shareholders;
(c) once the Intercompany Obligations of the Danish and Norwegian
Restricted Parties that are secured by their Security have been
indefeasibly paid and performed, they will, in the absence of
any other obligations secured by their Security at the relevant
time, be entitled to a release of their Security
notwithstanding that the Intercompany Obligations have been
assigned to secure all of the Obligations;
(d) it is not possible to effectively pledge the Capital Stock of
certain Scottish Restricted Parties by transfer of the Capital
Stock held by other Restricted Parties since to do so might
adversely affect the Permits for the operation of Aircraft held
by Scottish Restricted Parties.
(e) the laws of the Netherlands in effect prevent Xxxxxxxxx and its
Subsidiaries from guaranteeing or giving security for the
Obligations under or in connection with Tranche 1 and Tranche
2. [Note: Section added by Tenth Amending Agreement]
In addition, in connection with the Xxxxxxxxx Acquisition, the Agent
may excuse or permit a delay in compliance with the requirements of
Section 6.1.1 as follows: [Note: Section added by Tenth Amending
Agreement]
(f) Xxxxxxxxx and its Subsidiaries need not become Restricted
Parties and grant Security, and the Capital Stock of Xxxxxxxxx
need not be pledged until the requirements of the Works Council
Act of the Netherlands have been satisfied, but CHC shall use
all reasonable efforts to arrange for that to be done within 30
days after
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completion of the Xxxxxxxxx Acquisition; [Note: Section added
by Tenth Amending Agreement]
(g) Subsidiaries becoming Restricted Parties upon completion of the
Xxxxxxxxx Acquisition as noted on Schedule N may be excused
from or permitted to delay delivery of security documents
covering types of Property that they do not own if the security
documents they deliver cover the types of Property that they
are permitted to own by Schedule K; [Note: Section added by
Tenth Amending Agreement]
(h) Subsidiaries becoming Restricted Parties upon completion of the
Xxxxxxxxx Acquisition that are incorporated outside of the
Netherlands may be excused from or permitted to delay delivery
of Security in whole or in part. [Note: Section added by Tenth
Amending Agreement]
6.1.3 Any Restricted Party that has not delivered Security as required by
Section 6.1.1, including but not limited to any guarantee that is limited as to
amount or obligations guaranteed or any Security over Property that does not
cover all of the Property referred to in that Section, shall promptly deliver
amended or supplementary guarantees or other Security from time to time in
response to the reasonable request of the Agent (acting on the instructions of
the Majority Lenders) if it is then entitled under applicable Requirements of
Law to increase the limit of its guarantee or otherwise expand the scope of the
Security it has delivered.
6.2 Obligations Secured by the Security
Unless otherwise agreed by the Lenders among themselves, and except as
provided in Section 6.1.2, the Security shall secure the following obligations
pari passu with each other and in priority to any other debts, liabilities and
obligations secured by the Security:
(a) the Obligations;
(b) the Intercompany Obligations to the extent they are assigned to
the Agent for the benefit of the Lenders;
(c) the present and future debts, liabilities and obligations of a
Restricted Party to any Lender (collectively, the "Other
Secured Obligations") under or in connection with (i) cash
consolidation ("mirror netting") arrangements, credit cards and
other transactions not made under this Agreement if it is
agreed by the Restricted Parties and the Agent acting on the
instructions of the Majority Lenders that such debts,
liabilities and obligations shall be secured, and (ii) Swaps
that:
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A. in the case of currency hedging transactions do not have a term
of longer than 12 months and do not require delivery of an
aggregate amount greater than US $75,000,000 or the equivalent
amount in other currencies by all Restricted Parties under all
such transactions that are outstanding at any time and
otherwise comply with Section 10.6.1(d);
B. in the case of interest rate hedging transactions, comply with
Section 10.6.1(d); or
C. are agreed to by the Agent acting on the instructions of the
Majority Lenders. [Note: In Twelfth Amending Agreement the
Agent (on the instructions of the Majority Lenders) agreed to
CHC entering into a Swap with one or more Lenders. That consent
was subsequently replaced by a consent of the Agent (on the
instructions of the Majority Lenders) in a letter dated 27
April 2004. The Agent agreed to CHC entering into one or more
Swaps with one or more Lenders, which shall constitute Other
Secured Obligations, on the following terms:
(i) the Swap(s) must be currency swaps, cross currency swaps and/or
forward exchange contracts under which the Lender(s) that are
counterparties would pay US Dollars and CHC would pay Canadian
Dollars, British Pounds, Euros and/or Norwegian Kroner, and
must be for an aggregate notional amount not exceeding US
$160,000,000;
(ii) the maturity date(s) of the Swap must be not later than the
maturity date of the 2004 Notes;
(iii) the Swap must be entered into on or before 30 June 2004,
failing which the consent will terminate.]
As of the date of this Agreement, the Other Secured Obligations are
those listed in Schedule G. The Agent may from time to time prepare and provide
the Lenders and CHC with a revision of Schedule G to reflect changes in the
Other Secured Obligations, but the Agent's failure to do so shall not affect the
security for the Other Secured Obligations if it has been agreed in accordance
with this Section that they shall be secured by the Security. Other Secured
Obligations listed on Schedule G from time to time shall be conclusively deemed
to be secured by the Security (in the absence of manifest error) and shall not
cease to be secured without the prior written consent of the respective Lenders
to whom the Other Secured Obligations are owed.
Notwithstanding the rights of Lenders to benefit from the Security in
respect of the Other Secured Obligations, all decisions concerning the Security
and the
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enforcement thereof shall be made by the Lenders or the Majority Lenders in
accordance with this Agreement. No Lender holding Other Secured Obligations from
time to time shall have any additional right to influence the Security or the
enforcement thereof as a result of holding Other Secured Obligations as long as
this Agreement remains in force. However, the Other Secured Obligations shall
continue to be secured by the Security notwithstanding the termination of this
Agreement by reason of payment of the Credits, or for any other reason. After
the termination of this Agreement, decisions concerning the Security shall be
made by the holders of Other Secured Obligations as they may determine among
themselves.
The Security shall also secure all Intercompany Obligations, not only
while the Intercompany Obligations are assigned to the Agent for the benefit of
the Lenders but also for the benefit of the Restricted Parties to whom they are
owed if the Intercompany Obligations are no longer assigned to the Agent
following repayment of the Obligations and the Other Secured Obligations and
termination of this Agreement. The Restricted Parties to whom Intercompany
Obligations are owed (but for their having been assigned as part of the
Security) shall have no right to influence the Security or the enforcement
thereof, or to receive any proceeds thereof, as a result of their interest in
the Intercompany Obligations until the Obligations and the Other Secured
Obligations have been paid in full and this Agreement has been terminated, and
any action or omission of the Agent or the Lenders concerning the Security shall
be binding on the Restricted Parties. However, following repayment of the
Obligations and the Other Secured Obligations and termination of this Agreement,
but subject to the Intercreditor Agreement with the trustee for the 2000 Notes,
the Agent shall assign the Security securing Intercompany Obligations as CHC may
direct. Any such assignment shall be without representation by or recourse to
the Agent and the Lenders and shall be at the expense of CHC.
Certain of the Security given by CHB and Scandinavian Restricted
Parties shall also be held as security for the benefit of the holders of the
2000 Notes as more fully described in the Intercreditor Agreement with the
trustee for the holders of the 2000 Notes.
6.3 Exchange Rate Fluctuations
If fluctuations in rates of exchange in effect between relevant
Approved Currencies cause the amount of Advances (expressed in US Dollars in the
case of Credits A and B, British Pounds in the case of Credit C and Euros in the
case of Credit E, in each case based on the Exchange Rate in effect from time to
time) to any Borrower under Credits A, B, C or E to exceed the maximum amount of
that Credit permitted herein by five percent or more at any time, the relevant
Borrower or Borrowers (as determined by the Agent) shall pay the Lenders
immediately on demand such amount as is necessary to repay the excess. If a
Borrower is unable to immediately pay that amount because LIBOR Periods have not
ended or Bankers' Acceptances have not matured, that Borrower shall, immediately
on demand, post Collateral in the amount of the excess, which shall form part of
the Security and be held until the amount of the excess is paid in full or is
less than five percent. If, on the date of any Advance under Credits A, B, C or
E
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(whether by rollover, conversion or otherwise), the amount of Advances
(expressed in US Dollars in the case of Credits A and B, British Pounds in the
case of Credit C and Euros in the case of Credit E, in each case based on the
Exchange Rate in effect from time to time) under that Credit exceeds the maximum
amount of that Credit permitted herein because of fluctuations in rates of
exchange, the relevant Borrower or Borrowers (as determined by the Agent) shall
immediately pay the Lenders the excess and shall not be entitled to any Advance
that would result in the amount of that Credit being exceeded. [Note: Section
amended by First and Tenth Amending Agreements]
6.4 Borrowing Base
[Note: Section 6.4 added by Eleventh Amending Agreement]
6.4.1 CHC shall ensure that the Borrowing Base is at all times equal to at
least 1.20 times the aggregate of the principal amount of all Advances
outstanding and the aggregate Market Value of all Swaps that are Other Secured
Obligations and that have a negative Market Value from the Restricted Parties'
perspective after offsetting the Market Value of Swaps with the same Lender that
are Other Secured Obligations and that have a positive Market Value. For greater
certainty, the Borrowers shall not be entitled to receive Advances that would
result in the Borrowing Base being less than 1.20 times the aggregate of those
amounts, but CHC may submit a new calculation of its Borrowing Base from time to
time between submissions of its Reporting Certificates. [Note: Section added by
Eleventh Amending Agreement]
6.4.2 Notwithstanding Sections 4.5.2 and 6.1 and Schedule M, if no Event of
Default or Pending Event of Default has occurred and is continuing, CHC shall
not be required to offer to repay Advances in the circumstances described in
Section 4.5.2 nor shall a Restricted Party be required to give Security over
part or all of its Property if the failure to do so does not result in a breach
of Section 6.4.1. Nothing in this Section 6.4.2 shall, however, excuse CHC from
causing a Subsidiary to become a Restricted Party and deliver a guarantee and
from delivering or causing the delivery of a pledge of all of the Capital Stock
of the Subsidiary if otherwise required by Section 6.1. For greater certainty,
although the first sentence of this Section 6.4.2 may excuse CHC from offering
to repay Advances with the proceeds of disposition of certain Property, under
Section 10.6.1(b) CHC is not permitted to make principal payments in respect of
the Sub Debt and must therefore offer to repay Advances with the proceeds of
disposition of Property to the extent that the Sub Debt Indentures would
otherwise require CHC to repay the Sub Debt. [Note: Section added by Eleventh
Amending Agreement]
ARTICLE VII
DISBURSEMENT CONDITIONS
7.1 Conditions Precedent to Initial Advance
The following conditions precedent must be satisfied at or before the
time of the first Advance under this Agreement, unless waived in accordance with
Section 12.7.2. Where delivery of documents is referred to, the documents shall
be
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delivered to the Agent, for and on behalf of the Lenders, and shall be in full
force and effect and in form and substance satisfactory to the Lenders.
Documents delivered in connection with the Existing Credit Agreement need not be
delivered again in connection with this Agreement if they have not been amended
since then and do not require confirmation.
7.1.1 High Yield Notes
The following matters shall have occurred:
(a) the Agent shall have received a certificate of CHC with copies
of all documents necessary to fully and fairly disclose all
material terms of the 2000 Notes;
(b) the Agent shall have entered into an Intercreditor Agreement
with the trustee for the 2000 Notes;
(c) CHC shall have paid all of the net proceeds received from the
2000 Notes to fully repay all amounts outstanding under Credits
A and B under the Existing Credit Agreement and to reduce the
amounts outstanding under Credit C under the Existing Credit
Agreement.
7.1.2 Other Debt and Encumbrances - The Agent shall have received:
(a) evidence that all Debt of the Restricted Parties not forming
part of Permitted Obligations has been or will be paid and
performed in full concurrently with the first Advance and that
all security held in connection therewith has been or will be
promptly released;
(b) releases, discharges and postponements (in registrable form
where appropriate) covering all Encumbrances affecting the
collateral Encumbered by the Security which are not Permitted
Encumbrances, and all statements and acknowledgments that are
required in respect of other security interests affecting the
Property of the 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.
(c) a certified copy of the Discovery Note and an Intercreditor
Agreement with the holder of the Discovery Note, providing for
its subordination on terms satisfactory to the Lenders.
7.1.3 Financial Information - The Agent shall have received:
(a) a certificate of CHC containing its audited consolidated
financial statements for its fiscal periods ended on 30 April
in each of 1997,
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1998 and 1999 (and the Lenders must be satisfied with the
matters disclosed by those statements);
(b) a Reporting Certificate for the fiscal period ended 31 January
2000;
(c) the audited consolidated financial statements of HSG for its
fiscal periods ended on 31 December in each of 1996, 1997 and
1998 (and the Lenders must be satisfied with the matters
disclosed by those statements);
(d) a pro forma consolidated balance sheet for CHC, giving effect
to the 2000 Notes and the Advances contemplated by this
Agreement.
7.1.4 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 (unless
certificates have not been and are not customarily issued for
any particular Pledged Shares), and executed stock powers of
attorney relating to those certificates;
(c) certificates of insurance or other evidence that the covenants
and conditions of the Credit Documents concerning insurance
coverage are being complied with;
(d) the Fee Agreement;
(e) consents in respect of the Security from landlords of leasehold
real property in which any Restricted Party carries on
business, as designated by the Agent;
(f) agreements from other parties to contracts that have been
specifically assigned as part of the Security;
(g) a direction by CHC to the trustee for the holders of the 1987
Debentures, directing the trustee to deliver all shares of CHC
Helicopter Holdings Limited to the Agent when they are no
longer required as security for the 1987 Debentures,
acknowledged by the trustee.
7.1.5 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 their signatures and copies of the corporate
proceedings taken to
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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) 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 Security;
(d) a certificate of CHC attaching copies of all documents relating
to the 1987 Debentures;
(e) certified copies of all documents necessary to disclose all
material terms of and arrangements relating to Intercompany
Loan Obligations contemplated at the date of this Agreement,
including but not limited to loan agreements, and original
promissory notes and similar instruments evidencing
Intercompany Loan Obligations, endorsed for payment to the
Agent on behalf of the Lenders.
7.1.6 Opinions - The Agent shall have received:
(a) the opinion of Ernst & Young and other information concerning
tax issues relating to the funding of the requirements of
Restricted Parties that are not Borrowers;
(b) the opinion of Xxxxxx Xxxxxx Xxxxxxx LLP, counsel to the
Lenders, addressed to the Agent and the Lenders;
(c) the opinion of Poole, Althouse, Xxxxxxxx and Xxxxxx, counsel to
the Restricted Parties, addressed to the Agent and the Lenders;
(d) the opinion of Ontario counsel to the Restricted Parties,
addressed to the Agent and the Lenders;
(e) the opinion of Xxxxx & Williamsons, Scottish counsel to the
Restricted Parties, addressed to the Agent and the Lenders;
(f) the opinion of Thomessen Xxxxxxxx Xxxxx Xxxx and Advokatfirmaet
Wiersholm, Mellbye & Bech ANS, Norwegian counsel to the Lenders
and the Restricted Parties, respectively, addressed to the
Agent and Lenders;
(g) the opinions of local counsel in other provinces and
territories of Canada, in Barbados, Australia, South Africa and
in other
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jurisdictions as required by the Lenders, addressed to the
Agent and Lenders.
7.1.7 Other Matters - The following conditions must also be satisfied:
(a) The Agent must have received and be satisfied with a proposal
from CHC for steps to be taken so that its Permits for the
operation of Aircraft in the United Kingdom, Norway, Denmark
and other relevant jurisdictions are not dependent on the
citizenship of Xx. Xxxxx X. Xxxxxx. The proposal must be
capable of being implemented within six months after request by
the Lenders.
(b) The Agent must be satisfied that there has not occurred or does
not exist a circumstance or event which would or does have a
material adverse effect on the financial condition, Property or
prospects of the Restricted Parties.
(c) The Agent shall have received payment of all fees and expenses
then owing to it by the Borrowers.
(d) The Agent shall have received such other documents as the
Lenders may reasonably require.
7.1.8 Deadline for Advance
The initial Advance under Credits A, C and D must be made on or before
31 July 2000, failing which the Credits may be terminated at the option of any
of the Lenders unless, before that date, other persons identified by CHC and
satisfactory to the remaining Lenders have agreed to become Lenders in place of
those Lenders who are unwilling to continue beyond that date.
7.1.9 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 Pending Event of Default has occurred
and is continuing on the Drawdown Date, or would result from
making the Advance;
(b) the Agent has received timely notice as required under Section
8.6;
(c) the Advance is in compliance with the Sub Debt Indentures
(including but not limited to any limitation on additional
indebtedness contained in the Sub Debt Indentures) and will not
contravene or cause a default under any Sub Debt Indenture;
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(d) all other terms and conditions of this Agreement upon which an
Advance may be obtained are fulfilled.
ARTICLE VIII
ADVANCES
8.1 Lenders' Obligations Relating to L/Cs and Credits A and B
[Note: Section amended by Fourth Amending Agreement]
Notwithstanding that L/Cs under Credits A and B are issued by an
Issuing Bank, it is the intention of the parties that the ultimate credit risk
and exposure of any Lender be in accordance with its overall Proportionate Share
of Credits A and B, respectively. Each Lender shall (and hereby absolutely,
unconditionally and irrevocably agrees to) indemnify the Issuing Bank for that
Lender's Proportionate Share under the applicable Credit of any payment made by
the Issuing Bank in respect of an L/C for which the Issuing Bank is not
immediately reimbursed by the relevant Borrower, and shall do all such things,
including delivery of indemnity agreements and assignments to other Lenders of
Advances made by the Issuing Bank, as shall be required to ensure that result.
Any such action on the part of the Lenders shall be binding on that Borrower. If
the rating of the non-credit-enhanced senior debt of any Lender by Standard &
Poor's Corporation or Xxxxx'x Investors Services Inc. is at any time less than
"A" or "A2" respectively, that Lender shall, if requested by an Issuing Bank,
provide Collateral (in a form satisfactory to the Issuing Bank acting
reasonably) to secure that Lender's obligations under this clause.
Similarly, notwithstanding that Advances under Credit A2 are for the
time being made by BNS and its participation in Advances under Credit A1 is
reduced, and the participation of the other Credit A Lenders is increased, in
accordance with Section 8.2, it is the intention of the parties that the
ultimate credit risk and exposure of any Credit A Lender in respect of Credit A
be in accordance with its Proportionate Share of the entire amount of Credit A.
Accordingly, upon the Obligations becoming due and payable under Section 11.2,
each Credit A Lender shall (and hereby absolutely, unconditionally and
irrevocably agrees to) do all such things, including delivery of indemnity
agreements and assignments to other Credit A Lenders of Advances made by BNS
under Credit A2 or assignments to BNS of Advances made by other Credit A Lenders
under Credit A1 as shall be required to ensure that result. Any such action on
the part of the Credit A Lenders shall be binding on CHC.
Similarly, notwithstanding that Advances under Credit B2 are for the
time being made by BoS and its participation in Advances under Credit B1 is
reduced, and the participation of the other Credit B Lenders is increased, in
accordance with Section 8.2, it is the intention of the parties that the
ultimate credit risk and exposure of any Credit B Lender in respect of Credit B
be in accordance with its Proportionate Share of the entire amount of Credit B.
Accordingly, upon the Obligations becoming due and payable under Section 11.2,
each Credit B Lender shall (and hereby absolutely, unconditionally and
irrevocably agrees to) do all such things, including delivery of indemnity
agreements and
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assignments to other Credit B Lenders of Advances made by BoS under Credit B2 or
assignments to BoS of Advances made by other Credit B Lenders under Credit B1 as
shall be required to ensure that result. Any such action on the part of the
Credit B Lenders shall be binding on the European Borrowers and CHC.
If any Lender fails to take the actions required under this Section,
the Agent may, without prejudice to the other rights of the Lenders, make such
adjustments to the payments to the defaulting Lender under this Agreement as are
necessary to compensate the other Lenders for the defaulting Lender's failure.
8.2 Adjustment of Proportionate Shares for Specific Credits
[Note: Section amended by Fourth Amending Agreement]
While BNS is the sole Lender making Advances under Credit A2, its
participation in Advances and payments (including standby fees) under Credit A1
shall be reduced and shall be adjusted by the Agent from time to time, having
regard to the maximum principal amounts of Credits A1 and A2 and the overall
Commitment of BNS to Credit A, so that BNS's separate Proportionate Shares of
Credits A1 and A2 reflect its overall Proportionate Share of Credit A. The Agent
shall amend Schedule E to this Agreement and distribute it to all parties from
time to time to reflect such adjustments.
While BoS is the sole Lender making Advances under Credit B2, its
participation in Advances and payments (including standby fees) under Credit B1
shall be reduced and shall be adjusted by the Agent from time to time, having
regard to the maximum principal amounts of Credits B1 and B2 and the overall
Commitment of BoS to Credit B, so that BoS's separate Proportionate Shares of
Credits B1 and B2 reflect its overall Proportionate Share of Credit B. The Agent
shall amend Schedule E to this Agreement and distribute it to all parties from
time to time to reflect such adjustments.
8.3 Exceptions Regarding Particular Credits
[Note: Section amended by Fourth Amending Agreement]
Subject to the provisions of Section 8.1 regarding the assignment of
interests under Credit A2 in the event of acceleration of payment of the
Obligations, the provisions of this Agreement do not apply to Credit A2 to the
extent that the provisions contemplate the participation in Advances and
payments under Credit A2 by any Lender other than BNS. All Advances under Credit
A2 shall be made solely by BNS and records concerning Advances shall be
maintained solely by BNS. All payments of principal, interest, fees and other
amounts relating to Credit A2 shall be made solely to BNS. Any notices by CHC in
connection with Credit A2 shall be made to BNS. Notice and minimum amount
requirements for Advances shall not apply to Advances by way of overdraft under
Credit A2. In connection with Advances by way of overdraft, BNS shall ascertain
the positions or net positions of CHC's Canadian Dollar and US Dollar accounts
daily and, if the positions or net positions are debits in favour of BNS, the
debits will (if CHC is entitled to an Advance) be deemed to be Prime Rate
Advances (in the case of
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Canadian Dollars) or Base Rate (US) Advances (in the case of US Dollars) under
Credit A2 in the respective amounts of the debits. If the positions or net
positions are credits in favour of CHC, the credits will be deemed to be
repayments of Prime Rate Advances (in the case of Canadian Dollars) or Base Rate
(US) Advances (in the case of US Dollars) under Credit A2 in the respective
amounts of the credits.
Subject to the provisions of Section 8.1 regarding the assignment of
interests under Credit B2 in the event of acceleration of payment of the
Obligations, the provisions of this Agreement do not apply to Credit B2 to the
extent that the provisions contemplate the participation in Advances and
payments under Credit B2 by any Lender other than BoS. All Advances under Credit
B2 shall be made solely by BoS and records concerning Advances shall be
maintained solely by BoS. All payments of principal, interest, fees and other
amounts relating to Credit B2 shall be made solely to BoS. Any notices by the
European Borrowers in connection with Credit B2 shall be made to BoS. Notice and
minimum amount requirements for Advances shall not apply to Advances by way of
overdraft under Credit B2. In connection with Advances by way of overdraft, BoS
shall ascertain the positions or net positions of the respective European
Borrowers' British Pound accounts daily and, if the positions or net positions
are debits in favour of BoS, the debits will (if the European Borrowers are
entitled to an Advance) be deemed to be Base Rate (UK) Advances in the
respective amounts of the debits. If the positions or net positions are credits
in favour of the respective European Borrowers, the credits will be deemed to be
repayments of Base Rate (UK) Advances under Credit B2 in the respective amounts
of the credits.
Similarly, references in this Agreement to the Lenders generally
shall, in the context of a particular Credit, be interpreted as referring only
to the Lenders who have Commitments relating to that Credit. For example, no
Lender other than a Credit C Lender shall have any right to receive payments in
respect of Credit C or any obligation to make Advances under Credit C.
8.4 Evidence of Indebtedness
The Obligations resulting from Prime Rate Advances, Base Rate
Advances, and LIBOR Advances made by the Lenders shall be evidenced by records
maintained by the Agent, and by each Lender concerning those Advances it has
made. The Agent shall also maintain records of the Obligations resulting from
Advances by way of Bankers' Acceptances and L/Cs, and each Lender shall also
maintain records relating to Bankers' Acceptances that it has accepted and any
L/Cs that it has issued. The records maintained by the Agent shall constitute,
in the absence of manifest error, prima facie evidence of the Obligations and
all details relating thereto. The failure of the Agent or any Lender to
correctly record any such amount or date shall not, however, adversely affect
the obligation of the Borrowers to pay the Obligations in accordance with this
Agreement.
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8.5 Conversions
Subject to the other terms of this Agreement, the Borrowers may
from time to time convert all or any part of the outstanding amount of any
Advance into another form of Advance permitted by this Agreement. A conversion
does not, however, constitute a new advance of funds by any Lender, but only an
adjustment of the basis on which interest payable to the Lenders will be
calculated.
8.6 Notice of Advances and Payments
A Borrower shall give the Agent irrevocable written notice, in the
form attached as Schedule A to this Agreement, of any request for any Advance to
it under the Credits. A Borrower shall also give the Agent irrevocable written
notice in the same form of any payment (whether resulting from repayment or
prepayment), rollover or conversion by it of any Advance under the Credits.
Notice shall be given on the third Business Day prior to the date of
any Advance, payment, rollover or conversion, except that notice shall be given
in respect of an Advance by way of L/C at such earlier time as the Issuing Bank
may reasonably require so that it has sufficient time to review the proposed
form of L/C, and except that notice in respect of a Prime Rate Advance, Base
Rate (US) Advance or payment thereof may be given on the Business Day before any
such Advance or payment. Any permanent reduction of any Credit shall only be
effective on three Business Days' notice as required by Section 8.7.
Notices shall be given not later than 1:00 p.m. (local time in the
relevant office of the Agent) on the date for notice. Payments must be made
prior to 1:00 p.m. (local time in the relevant office of the Agent) on the date
for payment. If a notice or payment is not given or made by those times, it
shall be deemed to have been given or made on the next Business Day, unless all
Lenders affected by the late notice or payment agree, in their sole discretion,
to accept a notice or payment at a later time as being effective on the date it
is given or made.
8.7 Prepayments and Reductions
Subject to giving notice required by Section 8.6, the Borrowers may
from time to time repay Advances outstanding under any Credit without penalty,
except that (i) LIBOR Advances may not be paid prior to the end of the
applicable LIBOR Periods unless the relevant Borrower indemnifies the Lenders
for any loss or expense that the Lenders incur as a result, including any
breakage costs, and (ii) Bankers' Acceptances may not be paid prior to their
respective maturity dates.
CHC may from time to time, by giving not less than three Business
Days' express written notice to the Agent and paying all accrued and unpaid
standby fees to the effective date of cancellation or reduction, irrevocably
notify the Agent of the cancellation of any Credit or of the permanent reduction
of the committed amount of any Credit by an amount which shall be a minimum of
US $1,000,000 and a whole multiple
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of US $100,000. The Borrowers shall have no right to any increase in the
committed amount of that Credit thereafter.
8.8 Prime Rate, Base Rate and LIBOR Advances
Upon timely fulfilment of all applicable conditions as set forth in
this Agreement, the Agent, in accordance with the procedures set forth in
Section 8.11, will make the requested amount of a Prime Rate Advance, Base Rate
Advance or LIBOR Advance available to the relevant Borrower on the Drawdown Date
requested by the Borrower by crediting the Designated Account with such amount.
Each Prime Rate Advance or Base Rate (US) Advance shall be in an aggregate
minimum amount of $1,000,000 or US $1,000,000, respectively and in a whole
multiple of $100,000 or US $100,000, respectively or in a similar amount for
other Approved Currencies that is established by the Agent. Each LIBOR Advance
shall be in minimum amount of US $5,000,000 or (pound) 5,000,000 and a whole
multiple of US $1,000,000 or (pound) 1,000,000 or in a similar amount for other
Approved Currencies that is established by the Agent. Each Borrower shall pay
interest to the Agent for the account of the Lenders at the Branch of Account on
any such Advances outstanding to it from time to time hereunder at the
applicable rate of interest specified in Sections 2.5, 3.5, 4.6 and 5.5.
Interest on Prime Rate Advances and Base Rate Advances shall be
payable monthly on each Interest Payment Date. Interest on LIBOR Advances shall
be payable on the last day of the applicable LIBOR Period and, if the LIBOR
Period is longer than three months, every three months after the date of the
relevant LIBOR Advance. All interest shall accrue from day to day and shall be
payable in arrears for the actual number of days elapsed from and including the
date of Advance or the previous date on which interest was payable, as the case
may be, to but excluding the date on which interest is payable, both before and
after maturity, default and judgment, with interest on overdue interest at the
same rate payable on demand. Overdue interest with respect to a LIBOR Advance
shall, upon the expiry of the LIBOR Period applicable to such LIBOR Advance,
bear interest, payable on demand, calculated at the rates applicable to Base
Rate (US) Advances in the case of LIBOR Advances in US Dollars and Base Rate
(UK) Advances in the case of LIBOR Advances in British Pounds.
Interest calculated with reference to the Prime Rate shall be
calculated monthly on the basis of a calendar year. Interest on Base Rate
Advances shall be calculated monthly on the basis of a year of 360 days.
Interest calculated with reference to the LIBO Rate shall be calculated on the
basis of a year of 360 days for a term equal to the applicable LIBOR Period or,
if a LIBOR Period is longer than three months, every three months. Each rate of
interest which is calculated with reference to a period (the "deemed interest
period") that is less than the actual number of days in the calendar year of
calculation is, for the purposes of the Interest Act (Canada), equivalent to a
rate based on a calendar year calculated by multiplying such rate of interest by
the actual number of days in the calendar year of calculation and dividing by
the number of days in the deemed interest period.
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8.9 LIBOR Periods
The Borrowers may select, by irrevocable notice to the Agent, LIBOR
Periods of one, two, three or six months to apply to any particular LIBOR
Advance. LIBOR Periods of other lengths shall be permitted if the relevant
Lenders, acting reasonably, determine that deposits for such terms are readily
available. No LIBOR Period may end on a date which is not a Business Day, or
after the date on which the principal amount of any Credit is required to be
reduced (in whole or in part) if that would adversely affect the Borrowers'
ability to cause the reduction of the Credit in question. The Borrowers shall
from time to time select and give notice to the Agent of the LIBOR Period for a
LIBOR Advance which shall commence upon the making of the LIBOR Advance or at
the expiry of any outstanding LIBOR Period applicable to a LIBOR Advance that is
being rolled over. If a Borrower fails to select and give the Agent notice of a
LIBOR Period for a LIBOR Advance in accordance with Section 8.6, the LIBOR
Advance for which the LIBOR Period has ended shall be deemed to be converted to
a Base Rate (US) Advance, in the case of a LIBOR Advance in US Dollars, and a
Base Rate (UK) Advance in the case of a LIBOR Advance in British Pounds, and the
Borrower shall be deemed to have selected a LIBOR Period of one month in the
case of a LIBOR Advance in any other Approved Currency. A rollover of a LIBOR
Advance does not constitute a new advance of funds by the Lenders, but rather an
adjustment of the basis on which interest is charged. [Note: Section amended by
Third Amending Agreement]
8.10 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 Borrowers)
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 at least four Business Days' written notice by the Agent to CHC,
(d) the right of the Borrowers to request LIBOR Advances from that
Lender shall be and remain suspended until the Agent notifies
CHC that any condition causing such determination no longer
exists, and
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(e) if the Lender is prevented from maintaining a LIBOR Advance,
each 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, including
breakage costs.
8.11 Co-ordination of Prime Rate, Base Rate (US) and LIBOR Advances
Each Lender shall advance its Proportionate Share of each Prime Rate,
Base Rate (US) and LIBOR Advance under a Credit in accordance with the following
provisions:
(a) the Agent shall advise each Lender of its receipt of a notice
from a Borrower pursuant to Section 8.6 on the day such notice
is received and shall, as soon as possible, advise each Lender
of such Lender's 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. (local time in
the relevant office of the Agent) on the Drawdown Date;
(c) if the Agent determines that all the conditions precedent to an
Advance specified in this Agreement have been met, it shall
advance to the relevant Borrower the amount delivered by each
Lender by crediting the Designated Account prior to 3:00 p.m.
(local time in the relevant office of the Agent) on the
Drawdown Date, but if the conditions precedent to the Advance
are not met by 3:00 p.m. (local time in the relevant office of
the Agent) on the Drawdown Date, the Agent shall return the
funds to the Lenders or invest them in an overnight investment
as orally instructed by each Lender until such time as the
Advance is made; and
(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 (or a similar amount in other Approved Currencies that
is established by the Agent), as the case may be, the amount to
be advanced by that Lender may be increased or reduced by the
Agent in its sole discretion to the extent necessary to reflect
the requirements of this sub-clause.
8.12 Execution of Bankers' Acceptances
To facilitate the acceptance of Bankers' Acceptances hereunder, each
Borrower hereby appoints each Lender as its attorney to sign and endorse on its
behalf, as
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and when considered necessary by the Lender, an appropriate number of orders in
the form prescribed by that Lender.
Each Lender may, at its option, execute any order in handwriting or by
the facsimile or mechanical signature of any of its authorized officers, and the
Lenders are hereby authorized to accept or pay, as the case may be, any order of
a Borrower which purports to bear such a signature notwithstanding that any such
individual has ceased to be an authorized officer of the Lender. Any such order
or Bankers' Acceptance shall be as valid as if he or she were an authorized
officer at the date of issue of the order or Bankers' Acceptance.
Any order or Bankers' Acceptance signed by a Lender as attorney for a
Borrower, whether signed in handwriting or by the facsimile or mechanical
signature of an authorized officer of a Lender may be dealt with by the Agent or
any Lender to all intents and purposes and shall bind that Borrower as if duly
signed and issued by the Borrower.
The receipt by the Agent of a request for an Advance by way of
Bankers' Acceptances shall be each Lender's sufficient authority to execute, and
each Lender shall, subject to the terms and conditions of this Agreement,
execute orders in accordance with such request and the advice of the Agent given
pursuant to Section 8.16, and the orders so executed shall thereupon be deemed
to have been presented for acceptance.
8.13 Reference Lenders
If more than three Lenders are banks named on Schedule I of the Bank
Act (Canada), the Agent shall be a Schedule I Reference Lender and each of the
Agent and CHC shall designate a different Lender named on Schedule I to be a
Schedule I Reference Lender for the purpose of quoting rates to be used in
determining the Prime Rate, Base Rate (US), LIBOR Rate and BA Discount Rate. If
more than two Lenders are banks named on Schedule II of the Bank Act (Canada),
the Agent and CHC shall each designate a different Lender named on Schedule II
to be a Schedule II Reference Lender for the purpose of quoting rates to be used
in determining the BA Discount Rate.
If any Schedule I Reference Lender or Schedule II Reference Lender
ceases to be a Lender or ceases to accept Bankers' Acceptances, the person that
originally designated that Reference Lender shall have the right to designate in
a timely manner another Lender that is a bank chartered under and referred to in
Schedule I or Schedule II, as applicable, of the Bank Act (Canada) as a
replacement Reference Lender, failing which the applicable Prime Rate, Base Rate
(US), LIBOR Rate and BA Discount Rate hereunder shall be determined on the basis
of the rates provided by the notice from the relevant remaining Reference
Lender(s).
If three or fewer Lenders are banks named on Schedule I of the Bank
Act (Canada), all such Lenders shall be deemed to be the Schedule I Reference
Lender and any applicable Prime Rate, Base Rate (US), LIBOR Rate and BA Discount
Rate hereunder shall be determined on the basis of the discount rate provided by
those
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Lenders. If two or fewer Lenders are banks named on Schedule II of the Bank Act
(Canada), all such Lenders shall be deemed to be the Schedule II Reference
Lender and any applicable BA Discount Rate hereunder shall be determined on the
basis of the discount rate provided by those Lenders. If no Lender is a bank
named on Schedule I, or Schedule II as the case may be, of the Bank Act
(Canada), any applicable BA Discount Rate hereunder shall be determined on the
basis of the average rate for bankers acceptances of the relevant term that
appears on the Reuters Screen CDOR Page at 10:00 a.m. Toronto time on the
Drawdown Date plus 0.10% per annum.
8.14 Sale of Bankers' Acceptances
It shall be the responsibility of each Lender to arrange, in
accordance with normal market practice, for the sale on each Drawdown Date of
the Bankers' Acceptances issued by any Borrower and to be accepted by that
Lender, failing which the Lender shall purchase its Bankers' Acceptances.
In accordance with the procedures set forth in Section 8.16, the Agent
will make the net proceeds of the requested Advance by way of Bankers'
Acceptances received by it from the Lenders available to the relevant Borrower
on the Drawdown Date by crediting the Designated Account with such amount.
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 at least four days'
written notice by the Agent to CHC, the Borrowers' right to request Advances by
way of Bankers' Acceptances shall be and remain suspended until the Agent
notifies CHC that any condition causing such determination no longer exists.
8.15 Size and Maturity of Bankers' Acceptances and Rollovers
Each Advance of Bankers' Acceptances shall be in a minimum amount of
$5,000,000 and each Bankers' Acceptance shall be in the amount of $1,000 or
whole multiples thereof. Each Bankers' Acceptance shall have a term of 30 to 180
days after the date of acceptance of the order by a Lender, but no Bankers'
Acceptance may mature on a date which is not a Business Day or on a date which
is later than the date on which the principal amount of any Credit is required
to be reduced (in whole or in part) if that would adversely affect the
Borrowers' ability to cause the reduction of the Credit in question. The face
amount at maturity of a Bankers' Acceptance may be renewed as a Bankers'
Acceptance or converted into another form of Advance permitted by this
Agreement.
8.16 Co-ordination of BA Advances
Each Lender shall advance its Proportionate Share of each Advance
under a Credit by way of Bankers' Acceptances in accordance with the provisions
set forth below.
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8.16.1 The Agent, promptly following receipt of a notice from a Borrower
pursuant to Section 8.6 requesting an Advance by way of Bankers' Acceptances,
shall advise each Lender of the aggregate face amount and term(s) of the
Bankers' Acceptances to be accepted by it, which term(s) shall be identical for
all Lenders. The aggregate face amount of Bankers' Acceptances to be accepted by
a Lender shall be determined by the Agent by reference to the respective
Commitments of the Lenders, except that, if the face amount of a Bankers'
Acceptance would not be Cdn. $1,000 or a whole multiple thereof, the face amount
shall be increased or reduced by the Agent in its sole discretion to the nearest
whole multiple of Cdn. $1,000.
8.16.2 Each Lender shall transfer to the Agent at the Branch of Account for
value on each Drawdown Date immediately available Cdn. Dollars in an aggregate
amount equal to the BA Discount Proceeds of all Bankers' Acceptances accepted
and sold or purchased by the Lender on such Drawdown Date net of the applicable
Bankers' Acceptance Fee and net of the amount required to pay any of its
previously accepted Bankers' Acceptances that are maturing on the Drawdown Date
or any of its other Advances that are being converted to Bankers' Acceptances on
the Drawdown Date.
8.16.3 If the Agent determines that all the conditions precedent to an
Advance specified in this Agreement have been met, it shall advance to the
relevant Borrower the amount delivered by each Lender by crediting the
Designated Account prior to 3:00 p.m. (Toronto time) on the Drawdown Date, but
if the conditions precedent to the Advance are not met by 3:00 p.m. (Toronto
time) on the Drawdown Date, the Agent shall return the funds to the Lenders or
invest them in an overnight investment as orally instructed by each Lender until
such time as the Advance is made.
8.16.4 Notwithstanding any other provision hereof, for the purpose of
determining the amount to be transferred by a Lender to the Agent for the
account of the relevant Borrower in respect of the sale of any Bankers'
Acceptance issued by that Borrower and accepted by such Lender, the proceeds of
sale thereof shall be deemed to be an amount equal to the BA Discount Proceeds
calculated with respect thereto. Accordingly, in respect of any particular
Bankers' Acceptance accepted by it, a Lender in addition to its entitlement to
retain the applicable Bankers' Acceptance Fee for its own account (i) shall be
entitled to retain for its own account the amount, if any, by which the actual
proceeds of sale thereof exceed the BA Discount Proceeds calculated with respect
thereto, and (ii) shall be required to pay out of its own funds the amount, if
any, by which the actual proceeds of sale thereof are less than the BA Discount
Proceeds calculated with respect thereto.
8.16.5 Whenever a Borrower requests an Advance that includes Bankers'
Acceptances, each Lender that is not permitted by applicable law or by customary
market practice to accept a Bankers' Acceptance (a "Non BA Lender") shall, in
lieu of accepting its pro rata amount of such Bankers' Acceptances, make
available to that Borrower on the Drawdown Date a loan (a "BA Equivalent Loan")
in Canadian Dollars and in an amount equal to the BA Discount Proceeds of the
Bankers' Acceptances that the Non BA Lender would have been required to accept
on the Drawdown Date if it were able to accept Bankers' Acceptances. The BA
Discount Proceeds shall be calculated based on
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the BA Discount Rate provided by the Schedule II Reference Lenders. Each Non BA
Lender shall also be entitled to deduct from the BA Equivalent Loan an amount
equal to the Bankers Acceptance Fee that would have been applicable had it been
able to accept Bankers' Acceptances. The BA Equivalent Loan shall have a term
equal to the term of the Bankers' Acceptances that the Non BA Lender would
otherwise have accepted and the relevant Borrower shall, at the end of that
term, be obligated to pay the Non BA Lender an amount equal to the aggregate
face amount of the Bankers' Acceptances that it would otherwise have accepted.
All provisions of this Agreement applicable to Bankers' Acceptances and Lenders
that accept Bankers' Acceptances shall apply mutatis mutandis to BA Equivalent
Loans and Non BA Lenders and, without limiting the foregoing, Advances shall
include BA Equivalent Loans.
8.17 Payment of Bankers' Acceptances
Each Borrower shall provide for the payment to the Agent at the Branch
of Account for the account of the applicable Lenders of the full face amount of
each Bankers' Acceptance accepted for its account on the earlier of (i) the date
of maturity of a Bankers' Acceptance and (ii) the date on which any Obligations
become due and payable pursuant to Section 11.2. The Lenders shall be entitled
to recover interest from the relevant Borrower at a rate of interest per annum
equal to the rate applicable to Prime Rate Advances under the Credit under which
the Bankers' Acceptance was issued, compounded monthly, upon any amount payment
of which has not been provided for by that Borrower in accordance with this
Section. Interest shall be calculated from and including the date of maturity of
each Bankers' Acceptance up to but excluding the date such payment, and all
interest thereon, both before and after demand, default and judgment, is
provided for by the Borrower.
If a Borrower provides cash in response to any Obligations becoming
due and payable under Section 11.2, it shall be entitled to receive interest on
the cash provided in accordance with Section 14.15 as long as the cash is held
as Collateral.
8.18 Deemed Advance - Bankers' Acceptances
Except for amounts which are paid from the proceeds of a rollover of a
Bankers' Acceptance or for which payment has otherwise been funded by a
Borrower, any amount which a Lender pays to any third party on or after the date
of maturity of a Bankers' Acceptance in satisfaction thereof or which is owing
to the Lender in respect of such a Bankers' Acceptance on or after the date of
maturity of such a Bankers' Acceptance, shall be deemed to be a Prime Rate
Advance to that Borrower under this Agreement. Each Lender shall forthwith give
notice of the making of such a Prime Rate Advance to the relevant Borrower and
the Agent (which shall promptly give similar notice to the other Lenders).
Interest shall be payable on such Prime Rate Advances in accordance with the
terms applicable to Prime Rate Advances.
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8.19 Waiver
The Borrowers shall not claim from a Lender any days of grace for the
payment at maturity of any Bankers' Acceptances presented and accepted by the
Lender pursuant to this Agreement. Each Borrower waives any defence to payment
which might otherwise exist if for any reason a Bankers' Acceptance shall be
held by a Lender in its own right at the maturity thereof, and the doctrine of
merger shall not apply to any Bankers' Acceptance that is at any time held by a
Lender in its own right.
8.20 Degree of Care
Any executed orders to be used as Bankers' Acceptances shall be held
in safekeeping with the same degree of care as if they were the Lender's own
property, and shall be kept at the place at which such orders are ordinarily
held by such Lender.
8.21 Indemnity
Each 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, or any of them,
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.
8.22 Obligations Absolute
The obligations of each Borrower with respect to Bankers' Acceptances
under this Agreement shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, 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 a Borrower may have at any time against the
holder of a Bankers' Acceptance, a Lender or any other
person or entity, whether in connection with this
Agreement or otherwise.
8.23 Shortfall on Drawdowns, Rollovers and Conversions
Each 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;
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(b) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to pay a maturing Bankers'
Acceptance, if a Bankers' Acceptance is being rolled over; and
(c) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to repay any Advance which
is being converted to a Bankers' Acceptance;
shall be funded and paid by the Borrower from its own resources, by 11:00 a.m.
on the day of the Advance or may be advanced as a Prime Rate Advance under a
Credit if the Borrower is otherwise entitled to an Advance under the Credit.
8.24 Prohibited Use of Bankers' Acceptances and L/Cs
No Borrower shall enter into any agreement or arrangement of any kind
with any person to whom Bankers' Acceptances have been delivered whereby the
Borrower undertakes to replace such Bankers' Acceptances on a continuing basis
with other Bankers' Acceptances, nor shall any Borrower directly or indirectly
take, use or provide Bankers' Acceptances or L/Cs as security for loans or
advances from any other person except as expressly contemplated by this
Agreement.
8.25 Issuance and Maturity of L/Cs
A request for an Advance by way of L/C shall be made by a Borrower in
accordance with Section 8.6. The Agent shall promptly notify the Lenders of the
receipt of the request, but L/Cs shall only be issued by the Issuing Bank as
fronting bank for all Lenders. A request shall include the details of the L/C to
be issued. The Issuing Bank shall promptly notify the relevant Borrower of any
comment concerning the form of the L/C requested by the Borrower and shall, if
the Borrower is otherwise entitled to an Advance, issue the L/C to the Borrower
at the branch where its account is maintained on the Drawdown Date or as soon
thereafter as the Issuing Bank is satisfied with the form of L/C to be issued.
Each L/C issued under this Agreement shall have a term which is not
more than one year after its issuance date or renewal date unless the relevant
Borrower agrees to provide Collateral equal to the full face amount of any L/C
having a longer term. Collateral shall be provided for the benefit of the
Lenders promptly upon demand by the Agent. An L/C may be renewed by the relevant
Borrower subject to complying with the terms of this Agreement applicable to an
Advance by way of L/C.
8.26 Payment of L/C Fees
Payment of L/C fees shall be made to the Agent for the account of the
Lenders (other than the fronting fee under Credits A and B which shall be solely
for the Issuing Bank's account) at the Branch of Account, and shall be made at
the time of issuance or renewal of an L/C. L/C fees shall be calculated at the
rate specified in Sections 2.5 and 3.5 on the face amount of each L/C for the
duration of its term on the basis of the actual number of days to elapse from
and including the date of issuance or
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renewal by the Issuing Bank to but not including the expiry date of the L/C. L/C
fees shall be calculated on the basis of a 365 day year. The relevant Borrower
shall be entitled to a pro rata refund of fees paid in connection with any L/C
that is terminated as a result of payment or otherwise before its expiry date.
8.27 Payment of L/Cs
The Borrower for whose account an L/C was issued shall provide for the
payment to the Issuing Bank at the branch where the L/C was issued (for the
account of the Lenders) of the full face amount of each L/C (or the amount
actually paid in the case of a partial payment) on the earlier of (i) the date
on which the Issuing Bank makes a payment to the beneficiary of an L/C, and (ii)
the date on which any Obligations become due and payable pursuant to Section
11.2. The Lenders shall be entitled to recover interest from the relevant
Borrower at a rate of interest per annum equal to the rate applicable to Prime
Rate Advances (in the case of Canadian Dollar L/Cs), Base Rate (US) Advances (in
the case of US Dollar L/Cs) and Base Rate (UK) Advances (in the case of British
Pound 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 relevant Borrower to reimburse the Lenders for a
payment to a beneficiary of an L/C shall be absolute and unconditional, except
for matters arising from a Lender's wilful misconduct or gross negligence, and
shall not be reduced by any demand or other request for payment of an L/C (a
"Demand") paid or acted upon in good faith and in conformity with laws,
regulations or customs applicable thereto being invalid, insufficient,
fraudulent or forged, nor shall the Borrower's obligation be subject to any
defence or be affected by any right of set-off, counter-claim or recoupment
which the Borrower may now or hereafter have against the beneficiary, the Lender
or any other person for any reason whatsoever, including the fact that the
Issuing Bank paid a Demand or Demands (if applicable) aggregating up to the
amount of the L/C notwithstanding any contrary instructions from the Borrower to
the Issuing Bank or the occurrence of any event including, 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.
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If a Borrower provides cash in response to any Obligations becoming
due and payable under Section 11.2, it shall be entitled to receive interest on
the cash provided in accordance with Section 14.15 as long as the cash is held
as Collateral.
8.28 Deemed Advance - L/Cs
Except for amounts which have been funded by the relevant Borrower,
any amount which the Issuing Bank pays to any third party in respect of an L/C
in satisfaction or partial satisfaction hereof shall also be deemed to be a
Prime Rate Advance in the case of Canadian Dollar L/Cs, a Base Rate Advance in
the case of US Dollar L/Cs and a Base Rate (UK) Advance (in the case of British
Pound L/Cs), in each case under the Credit under which the L/C was issued. The
Issuing Bank shall forthwith give notice of the making of such an Advance to the
relevant Borrower and the Agent (which shall promptly give similar notice to the
other Lenders). Interest shall be payable on such Advances in accordance with
the terms applicable to such Advances.
8.29 Prohibited Rates of Interest
Notwithstanding any other provisions of this Agreement or any other
Credit Document, the Borrowers shall not be obliged to make any payment of
interest or other amounts payable to the Lenders or the Agent under this
Agreement or under any other Credit Document in an amount or at a rate that
would be prohibited by law or would result in the receipt by the Lenders or the
Agent of interest at a criminal rate, as the terms "interest" and "criminal
rate" are defined under the Criminal Code (Canada), or that would contravene any
local usury laws which may be applicable to any obligations of the Borrowers to
the Lenders or the Agent under or in connection with this Agreement. In any such
case, any payment, collection or demand for interest in excess of the maximum
permitted rate shall be deemed to have been made by mutual mistake of the
relevant Borrower, Agent and Lenders, any excess payment shall be refunded to
that Borrower and the amount or rate otherwise payable under the terms of any
Credit Document shall be reduced to the maximum amount or rate payable in
accordance with applicable law. For the purposes of this Agreement, the
effective annual rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles and in the event of any
dispute, a certificate of a Fellow of the Canadian Institute of Actuaries
appointed by the Agent shall be conclusive for the purpose of such
determination.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 Representations and Warranties
Each Restricted Party represents and warrants to the Lenders as
specified below.
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9.1.1 Corporate Matters
(a) It is a duly incorporated and validly existing corporation, is
in compliance with the requirements for carrying on business in
all jurisdictions in which it carries on business, and has the
power and authority, and all material Permits required as of
the date hereof, to enter into and perform its obligations
under any 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) 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, any Permit or any Contract to which it is a
party, and (iii) will not result in the creation of any
Encumbrance on any of its Property, other than the Security,
will not require it to create any Encumbrance on any of its
Property and will not result in the forfeiture of any of its
Property.
(c) Its Constating Documents do not restrict the power of its
directors to borrow money, to give financial assistance by way
of loan, guarantee or otherwise, or to encumber any or all of
its present and future Property to secure the Obligations,
except for restrictions under any Constating Document which
have been complied with in connection with the Credit Documents
and the Permitted Obligations.
(d) It is not in violation of any term of its Constating Documents
and is not in violation of any 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.
9.1.2 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
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) No Event of Default or Pending Event of Default has occurred
and is continuing.
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(c) From and after the date on which the relevant Security is
delivered and registered if required, the Lenders will have
legal, valid and enforceable security upon all of its present
and future Property which is or is intended to be Encumbered
thereby (as to which it has, or will when acquired have, a good
and marketable title as owner or lessee), subject only to
Permitted Encumbrances, the availability of equitable remedies,
and the effect of bankruptcy, insolvency and similar laws
affecting the rights of creditors generally.
9.1.3 Litigation, Financial Statements Etc.
(a) As of 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 materially and adversely affect its ability to
perform its obligations under the Credit Documents, except as
disclosed on Schedule H.
(b) All of the historical financial statements which have been
furnished to the Lenders, or any of them, in connection with
this Agreement are complete and, to its knowledge after
reasonable inquiry, fairly present its financial position as of
the dates referred to therein and have been prepared in
accordance with GAAP except, in the case of quarterly financial
statements, notes to the statements and audit adjustments
required by GAAP are not included.
(c) As of 13 February 2004, all projections, including forecasts,
budgets, pro formas and business plans provided to the Lenders,
or any of them, were prepared in good faith based on reasonable
assumptions which were adequately disclosed in the respective
documents and are reasonable estimates of the prospects of the
businesses referred to therein. [Note: Section amended by Tenth
Amending Agreement]
(d) As of 13 February 2004, it has no liabilities (contingent or
other) or other obligations of the type required to be
disclosed in accordance with GAAP which are not fully disclosed
on its audited financial statements provided to the Lenders for
its fiscal year ended 30 April 2003, or its interim financial
statements for its fiscal period ended 31 October 2003, other
than liabilities and obligations incurred thereafter in the
ordinary course of its business. [Note: Section amended by
Tenth Amending Agreement]
(e) It is not in default under any of the Permitted Encumbrances.
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(f) There is no fact that it has not disclosed to the Agent and the
Lenders in writing that materially adversely affects its
ability to perform its obligations under the Credit Documents
to which it is or will be a party.
(g) To the best of its knowledge, after all reasonable and prudent
testing, its Systems are Year 2000 Compliant.
9.1.4 Sub Debt
(a) This Agreement does not contravene or conflict with the Sub
Debt Indentures and the incurrence of the Obligations is in
compliance with the Sub Debt Indentures and will not contravene
or cause a default under any Sub Debt Indenture.
(b) All Obligations are "Senior Indebtedness" and "Designated
Senior Indebtedness" as defined in the Sub Debt Indentures
relating to the 2000 Notes and the 2004 Notes and are entitled
to the benefit of all subordination provisions of the Sub Debt
Indentures. [Note: Section amended by Twelfth Amending
Agreement]
(c) This Agreement constitutes the "Senior Credit Facility" as
defined in the Sub Debt Indentures relating to the 2000 Notes
and the 2004 Notes. [Note: Section amended by Twelfth Amending
Agreement]
(d) CHC has complied in all respects with the Sub Debt Indenture
relating to the 2000 Notes in connection with the Xxxxxxxxx
Acquisition, including but not limited to compliance concerning
the Debt incurred in connection with the Xxxxxxxxx Acquisition
and the Subsidiaries acquired through the Xxxxxxxxx
Acquisition. [Note: Section added by Tenth Amending Agreement]
9.1.5 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 location of its head office (and chief
executive office, if different), and the jurisdictions in which
its Property is located.
(b) As of the date of this Agreement, the Aircraft in which it has
any interest (including leased Aircraft) are located in the
respective jurisdictions specified on Schedule I.
(c) The Pledged Shares are validly issued as fully paid and
non-assessable Capital Stock of the respective Restricted
Parties.
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(d) The consents of the shareholders or directors of the respective
Restricted Parties that will be delivered at or prior to the
time that the Pledged Shares become part of the Security are
the only consents that are necessary or desirable in connection
with the pledges of the Pledged Shares as part of the Security
(including the enforcement of the pledges), except for consents
of regulatory authorities that may be required in connection
with transfers of Pledged Shares issued by Restricted Parties
that directly or indirectly hold Permits for operation of
aircraft. The consents of the shareholders or directors will be
kept in full force and effect as long as they remain necessary
or desirable.
(e) It owns or is licensed or otherwise has the right to use all
Intellectual Property that is necessary for the operation of
its business, without conflict with the rights of any other
person. All Intellectual Property in which it owns an interest
registered in a public office is listed on Schedule J.
9.1.6 Environmental Matters
(a) To its knowledge having made all due inquiry, (i) there are no
active or abandoned underground storage tanks located on any
land which it occupies or controls, except those that comply
with applicable Requirements of Law, (ii) there are no
Hazardous Materials located on, above or below the surface of
any land which it occupies or controls (except those being
stored in compliance with applicable Requirements of Law) or
contained in the soil or water constituting such land, (iii) no
release, spill, leak, emission, discharge, leaching, dumping or
disposal of Hazardous Materials has occurred on or from such
land and (iv) no land that it occupies or controls has been
used as a landfill or waste disposal site.
(b) Its business and Property have been and are being owned,
occupied and operated in substantial compliance with applicable
Requirements of Law intended to protect the environment
(including, without limitation, laws respecting the disposal or
emission of Hazardous Materials), to the best of its knowledge
after reasonable inquiry there are no breaches thereof and no
enforcement actions in respect thereof are threatened or
pending which, in any such case, could materially and adversely
affect its ability to perform its obligations under the Credit
Documents to which it is or will be a party.
9.1.7 Taxes and Withholdings
(a) It has (i) duly filed on a timely basis all material tax
returns, elections and reports required to be filed by it and
has paid,
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collected and remitted all material Taxes due and payable,
collectible or remittable by it, and (ii) made adequate
provision for material Taxes payable by it for the current
period and any previous period for which tax returns are not
yet required to be filed and, except as disclosed in writing to
the Agent from time to time, there are no actions, proceedings
or claims pending or, to its knowledge, threatened, against it
in respect of material Taxes (it being agreed that, for
purposes of this clause, the amount of a Tax is material if it
equals or exceeds Cdn. $500,000 or the equivalent thereof in
another currency).
(b) It has (i) withheld from each payment made to any of its past
or present employees, officers or directors, and to any
non-resident of the country in which it is resident, the amount
of all material Taxes and other deductions required to be
withheld therefrom and has paid the same to the proper tax or
other receiving officers within the time required under any
applicable legislation, and (ii) collected and remitted to the
appropriate tax authority when required by law to do so all
material amounts collectible and remittable in respect of goods
and services tax and similar provincial or state Taxes, and has
paid all such material amounts payable by it on account of
sales Taxes including goods and services and value-added taxes
(it being agreed that, for purposes of this clause, the amount
of a Tax is material if it equals or exceeds Cdn. $500,000 or
the equivalent thereof in another currency).
9.1.8 Pension Plans
(a) During the period of twelve consecutive months before the date
of the execution and delivery of this Agreement and before the
date of any Advance hereunder, (i) no steps have been taken to
terminate any Pension Plan (wholly or in part), which could
result in a Restricted Party be required to make an additional
contribution to the Pension Plan in excess of $100,000, (ii) no
contribution failure has occurred with respect to any Pension
Plan sufficient to give rise to a lien or charge under any
applicable pension benefits laws of any other jurisdiction,
(iii) no condition exists and no event or transaction has
occurred with respect to any Pension Plan which might result in
the incurrence by any Restricted Party of any liability, fine
or penalty in excess of $100,000, and (iv) except as disclosed
in the financial statements required to be provided pursuant to
this Agreement or as otherwise disclosed in writing from time
to time to the Agent, no Restricted Party has any contingent
liability with respect to any post-retirement benefit under a
Welfare Plan.
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(b) Each Pension Plan is in compliance in all material respects
with all applicable pension benefits and tax laws, (i) all
contributions (including employee contributions made by
authorized payroll deductions or other withholdings) required
to be made to the appropriate funding agency in accordance with
all applicable laws and the terms of each Pension Plan have
been made in accordance with all applicable laws and the terms
of each Pension Plan, (ii) all liabilities under each Pension
Plan are fully funded, on a going concern and solvency basis,
in accordance with the terms of the respective Pension Plans,
the requirements of applicable pension benefits laws and of
applicable regulatory authorities and the most recent actuarial
report filed with respect to the Pension Plan, and (iii) no
event has occurred and no conditions exist with respect to any
Pension Plan that has resulted or could reasonably be expected
to result in any Pension Plan having its registration revoked
or refused for the purposes of any applicable pension benefits
or tax laws or being placed under the administration of any
relevant pension benefits regulatory authority or being
required to pay any taxes or penalties under any applicable
pension benefits or tax laws, except for any exceptions to
clauses (ii) through (iv) above that, individually or in the
aggregate, could not reasonably be expected to have a material
adverse effect on any Restricted Party.
9.1.9 Survival of Representations and Warranties
Unless expressly stated to be made as of a specific date, the
representations and warranties made in this Agreement shall survive the
execution of this Agreement and all other Credit Documents, and shall be deemed
to be repeated as of the date of each Advance (including any deemed Advance) and
as of the date of delivery of each Reporting Certificate, subject to
modifications made by CHC to the Lenders in writing and accepted by the Majority
Lenders. The Lenders shall be deemed to have relied upon such representations
and warranties at each such time as a condition of making an Advance hereunder
or continuing to extend the Credits hereunder.
ARTICLE X
COVENANTS AND CONDITIONS
10.1 Intercompany Obligations
10.1.1 Each Restricted Party acknowledges that, under the terms of the
Security it has given, all Intercompany Obligations owing to it are assigned as
security to the Agent. The assignment as security shall not prevent a Restricted
Party from receiving payment of Intercompany Obligations unless an Event of
Default or Pending Event of Default has occurred and is continuing.
Notwithstanding the foregoing, (a) the principal amount of Intercompany Loan
Obligations owing by Vinland, HSG and HSAS shall not be repaid, converted,
forgiven or otherwise reduced or eliminated without the prior written consent of
the Majority Lenders and (b) the principal amount of Intercompany Loan
Obligations
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owing to Restricted Parties incorporated in Denmark or Norway by other
Restricted Parties shall not be repaid without the prior written consent of the
Majority Lenders, except to the extent that the principal amount is being
reduced pursuant to a scheduled reduction specified in the documentation
relating to the Intercompany Loan Obligation that has been provided to the
Agent.
10.1.2 Intercompany Obligations are assigned to the Agent under the Security,
and shall be paid free of any set-off, counterclaim, defence or other right that
the Restricted Parties, or any of them, owing Intercompany Obligations may have
against Restricted Parties, or any of them, to whom Intercompany Obligations are
owed.
10.2 Financial Covenants
[Note: In the Sixth Amending Agreement, the Lenders agreed that for the purposes
of determining the Total Debt Ratio, the Senior Debt Ratio and the Adjusted
Total Debt Ratio during the period from 30 April 2002 to 29 June 2002, Total
Debt may be calculated by deducting all cash, certificates of deposit or similar
securities issued by any of the Lenders, debt obligations of the federal
government of Canada, debt securities of publicly traded issuers that are rated
as investment grade by nationally recognized rating agencies and have a term to
maturity of not more than 40 days, or other securities acceptable to the
Majority Lenders as being equivalent to cash that are held by CHC on a
consolidated basis.]
10.2.1 During the term of this Agreement, CHC shall at all times maintain a
Total Debt Ratio of not greater than the following:
Period Ratio
------ -----
to 29 April 2001 5.40 to 1
30 April 2001 to 29 April 2002 4.75 to 1
30 April 2002 to 29 April 2003 4.00 to 1
Thereafter 3.50 to 1
10.2.2 During the term of this Agreement, CHC shall at all times maintain a
Senior Debt Ratio of not greater than the following:
Period Ratio
------ -----
to 29 April 2001 3.50 to 1
30 April 2001 to 29 April 2002 3.25 to 1
Thereafter 2.50 to 1
10.2.3 During the term of this Agreement, CHC shall at all times maintain an
Adjusted Total Debt Ratio of not greater than the following:
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Period Ratio
------ -----
to 29 April 2001 6.25 to 1
30 April 2001 to 29 April 2002 5.75 to 1
30 April 2002 to 29 April 2003 5.00 to 1
Thereafter 4.50 to 1
10.2.4 During the term of this Agreement, CHC shall at all times maintain an
Interest Coverage Ratio of not less than the following:
Period Ratio
------ -----
to 29 April 2001 1.75 to 1
30 April 2001 to 29 April 2002 2.00 to 1
30 April 2001 to 29 April 2003 2.25 to 1
Thereafter 2.50 to 1
10.2.5 During the term of this Agreement, CHC shall at all times maintain a
Fixed Charge Coverage Ratio of not less than the following:
Period Ratio
------ -----
to 29 April 2001 1.00 to 1
Thereafter 1.10 to 1
10.3 Positive Covenants
During the term of this Agreement, each Restricted Party shall perform
the covenants specified below.
10.3.1 Payment; Operation of Business
(a) It shall duly and punctually pay the Obligations, either as
Borrower or in accordance with any guarantee it has given, at
the times and places and in the manner required by the terms
thereof.
(b) It shall 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 obtain, as and when required, all Permits and
Contracts which may be material to permit it to acquire, own,
operate and maintain its business and Property and perform its
obligations
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under the Credit Documents to which it is or will be a party,
and preserve and maintain those Permits and Contracts and all
such Permits and Contracts now held by it in good standing.
10.3.2 Inspection
It shall at all reasonable times and from time to time upon reasonable
advance notice (unless an Event of Default or Pending Event of Default has
occurred and is continuing, in which case notice shall not be required), permit
representatives of the Lenders to inspect any of its Property and to examine and
take extracts from its financial books, accounts and records, including 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
CHC, provided that:
(a) the Lenders' exercise of their rights under this clause 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 CHC 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;
(d) unless an Event of Default or Pending Event of Default has
occurred and is continuing, CHC shall only be required to pay
the expense of one inspection in any fiscal year of CHC for any
particular Aircraft or premises;
(e) unless an Event of Default or Pending Event of Default has
occurred and is continuing, any inspection shall be undertaken
by qualified representatives of the Lenders (as determined by
the Agent) who are most closely located to the Aircraft or
premises to be inspected so as to minimize the expense to CHC.
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10.3.3 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 and against risks that are
reasonably required by the Lenders, and shall furnish to the
Agent, on written request, satisfactory evidence of the
insurance carried.
(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, all in a form
acceptable to the Lenders acting reasonably, and a provision
that such policies will not be amended in any manner which is
prejudicial to the Lenders or be cancelled without 30 days'
prior written notice being given to the Agent by the issuers
thereof. It shall also cause the Agent to be named as an
additional insured with respect to public liability and,
subject to Section 10.9, cause all of the proceeds of insurance
under such policies to be made payable and to be paid to the
Agent for and on behalf of the Lenders as their interests may
appear to the extent of the Obligations.
(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, but the
Lenders shall maintain the confidentiality of all information
they receive in accordance with usual requirements of banker /
customer confidentiality, and shall not disclose or use it
except for the purposes of this Agreement.
(d) It shall provide the Agent promptly with such other evidence of
the insurance as the Lenders may from time to time reasonably
require.
10.3.4 Taxes and Withholdings
(a) It shall pay all Taxes as they become due and payable unless
(i) they are being contested in good faith by appropriate
proceedings and it has made arrangements satisfactory to the
Majority Lenders acting reasonably in respect of payment of the
contested amount or (ii) the amount of unpaid Taxes cannot be
reliably determined and is less than an aggregate of $100,000
for all such Taxes that are outstanding at any time.
(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
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the country in which it is resident, the amount of all Taxes
and other deductions required to be withheld therefrom and pay
the same to the proper tax or other receiving officers within
the time required under any applicable 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.
10.3.5 Other Matters
(a) It shall, immediately upon receipt, deliver to the Agent on
behalf of the Lenders, 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 Security, together with executed
stock powers of attorney relating to those certificates (or if
certificates in respect of such Capital Stock are not
available, take such other steps to perfect the Security
relating to such Capital Stock as the Agent requires), and
shall also deliver to the Agent originals of all promissory
notes and similar instruments evidencing Intercompany Loan
Obligations, endorsed for payment to the Agent on behalf of the
Lenders.
(b) It shall provide such evidence of on-going compliance with
Requirements of Law relating to Hazardous Materials 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, having
conducted one or more environmental site assessment and/or
compliance audits (each consisting of a non-intrusive phase I
audit and recommendations with respect to the findings
described therein and such other audits or investigations
recommended in each such phase I audit, including, 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 10.4.2(c).
(c) To the extent it has any interest in Aircraft, it shall comply
with the requirements of Schedule M for owned and leased
Aircraft, as applicable.
(d) If requested by the Agent, it shall diligently pursue consents
in respect of the Security from landlords of leasehold real
property in which any Restricted Party carries on business and
an agreement of
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Vector Aerospace Corporation concerning continued supply of
management information services to the Restricted Parties.
(e) In the case of CHC, it shall diligently pursue the voluntary
dissolution or winding up, or sale to a third party on terms
approved by the Lenders, of each of Pacific Aerospace Services
Inc., Pacific Northwest Helicopters Inc., Okanagan Helicopters
Limited, Helimatic AS, Xxxxx Helicopters Ltd., Bond Rotary Wing
Limited, Bond Helicopters BV, Court Republic Helicopters
(Proprietary) Ltd., Cape Aero Services (Pty.) Ltd., Rotorwing
(Pty.) Ltd. and Marine Aviation Services (Africa) Ltd. in order
to complete the dissolution, winding up or sale as soon as
possible and in any event not later than 30 April 2001. In the
interim, it shall ensure that none of those corporations
carries on any business or owns any Property unless it has
first become a Restricted Party in accordance with Section 6.1.
(f) In the case of CHC, it shall enter into Swaps for the purpose
of fixing interest rates and hedging currency risk in amounts
and on terms satisfactory to the Agent not later than 30
September 2000, and shall maintain those Swaps thereafter.
(g) Within six months after request by the Majority Lenders, it
shall implement the proposal approved by the Lenders for steps
to be taken so that its Permits for the operation of Aircraft
in the United Kingdom, Norway, Denmark and other relevant
jurisdictions are not dependent on the citizenship of Xx. Xxxxx
X. Xxxxxx.
10.4 Reporting and Notice Requirements
During the term of this Agreement, CHC shall deliver or cause the
delivery of the periodic reports specified below and shall give notices in the
circumstances specified below, or cause notices to be given. All financial
statements and other reports shall be in a form satisfactory to the Lenders and
all financial statements shall be prepared in accordance with GAAP.
10.4.1 Periodic Reports
(a) CHC shall, as soon as practicable and in any event within 45
days of the end of each of its fiscal quarters, cause to be
prepared and delivered to the Lenders, a statement of its
inventory and an aged listing of its accounts receivable, each
on a consolidated basis and with such unconsolidated
information in respect of individual Restricted Parties as the
Lenders may specify. [Note: Section amended by Ninth Amending
Agreement]
(b) CHC shall, as soon as practicable and in any event within 45
days of the end of each of its fiscal quarters (including the
fourth
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quarter, except that 60 days shall be allowed for the fourth
quarter), cause to be prepared and delivered to the Lenders,
its interim unaudited consolidated financial statements as at
the end of such quarter and interim unaudited unconsolidated
financial statements of such Restricted Parties as the Lenders
may specify from time to time 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) CHC shall, as soon as practicable and in any event within 90
days after the end of each of its fiscal years, cause its
consolidated annual financial statements to be prepared and
delivered to the Lenders including, without limitation, balance
sheet, statement of income and retained earnings and statement
of changes in financial position for such fiscal year, which
shall be audited by an internationally recognized accounting
firm.
(d) CHC shall, concurrently with the delivery of its quarterly
financial statements, provide the Lenders with a Reporting
Certificate.
(e) CHC shall, as soon as practicable and in any event not later
than 45 days after the beginning of each of its fiscal years,
cause to be prepared and delivered to the Lenders, a budget
with projections for the current and the following four fiscal
years. The budget shall cover CHC on a consolidated basis and
other Restricted Parties designated by the Agent on an
unconsolidated 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, and a list of all Material Contracts expiring in all
relevant periods, all broken down quarterly for the current
fiscal year only and annually thereafter, and otherwise in
detail acceptable to the Agent and the Majority Lenders.
(f) CHC shall, as soon as practicable and in any event not later
than 45 days after the beginning of each of its fiscal years,
cause to be prepared and delivered to the Lenders, a current
appraisal by an independent appraiser satisfactory to the Agent
of all of the Aircraft owned by Restricted Parties. The
appraisal may be a "desk-top" appraisal based on information
provided to the appraiser concerning the specifications and
hours of service of the Aircraft rather than physical
inspection of the Aircraft.
(g) CHC shall promptly provide each of the Lenders with copies of
all information concerning its financial condition and Property
that is provided to the trustees or noteholders under the Sub
Debt
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Indentures and not otherwise provided to the Lenders, copies of
all notices received from the trustees or noteholders under the
Sub Debt Indentures, and all other information reasonably
requested by the Lenders from time to time concerning the
business, financial condition and Property of the Restricted
Parties.
(h) CHC shall, as soon as practicable and in any event within 25
days of the end of each month, cause to be prepared and
delivered to the Lenders, an unconsolidated statement of
accounts receivable of each Restricted Party incorporated under
the laws of the Netherlands which has given a pledge of its
accounts receivable as part of the Security in the form of
"borderel" attached to the relevant pledge. [Note: Section
added by Tenth Amending Agreement]
If there is any change in a subsequent period from the accounting
policies, practices and calculation methods used by CHC in preparing its
financial statements for its fiscal year ended 30 April 1999, or components
thereof, CHC shall provide the Lenders with all information that the Lenders
require to ensure that reports provided to the Lenders after any change are
comparable to previous reports. In addition, all calculations made for the
purposes of this Agreement shall continue to be made based on the accounting
policies, practices and calculation methods that were used in preparing CHC's
financial statements for its fiscal year ended 30 April 1999 if the changed
policies, practices and methods would materially affect the results of those
calculations.
10.4.2 Requirements for Notice
(a) CHC shall immediately notify the Lenders of any Event of
Default or Pending Event of Default, or of any material default
(either by a Restricted Party or by any other party) under any
Material Contract or Material Permit, or of any event which,
with or without the giving of notice, lapse of time or any
other condition subsequent, would be a material default or
would otherwise allow the termination of any Material Contract
or Material Permit or the imposition of any material sanction
on any party to a Material Contract or Material Permit, and
shall from time to time provide the Lenders with all
information reasonably requested by any of the Lenders
concerning the status thereof.
(b) CHC shall immediately notify the Lenders on becoming aware of
the occurrence of any litigation, dispute, arbitration,
proceeding, labour or industrial dispute or other circumstance
affecting it, the result of which if determined adversely would
have a material and adverse effect on the ability of any
Restricted Party to perform its obligations under this
Agreement, or the Credit Documents to which it is or will be a
party, and shall from time to time provide
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the Lenders with all reasonable information requested by any of
the Lenders concerning the status thereof.
(c) CHC shall immediately notify the Agent upon (i) learning of the
existence of Hazardous Materials located on, above or below the
surface of any land which any Restricted Party owns, leases,
occupies or controls (except those being stored, used or
otherwise handled in substantial compliance with applicable
Requirements of Law), or contained in the soil or water
constituting such land (in excess of levels prescribed under
applicable Requirements of Law, guidelines or policies of
applicable regulatory authorities or which would constitute an
actual or potential breach of or non-compliance with any
Requirements of Law) and (ii) the occurrence of any reportable
release, spill, leak, emission, discharge, leaching, dumping or
disposal of Hazardous Materials that has occurred on or from
such land which, as to either (i) or (ii), would materially and
adversely affect the ability of any Restricted Party to perform
its obligations under the Credit Documents to which it is or
will be a party, and shall provide the Agent with details
(including cost) of the work required to remove, clean up or
otherwise remedy the matters referred to in the notice.
(d) CHC shall provide notice to the Agent and copies of all
relevant documentation immediately upon becoming aware of (i)
the institution of any steps by any Restricted Party or any
applicable regulatory authority to terminate any Pension Plan
(wholly or in part) which could result in any Restricted Party
being required to make an additional contribution to the
Pension Plan in excess of $100,000, (ii) the failure to make a
required contribution to any Pension Plan if such failure is
sufficient to give rise to a lien or charge under any
applicable pension benefits laws of any other jurisdiction,
(iii) the taking of any action with respect to a Pension Plan
which could reasonably be expected to result in the requirement
that any Restricted Party furnish a bond or other security to
such Pension Plan or any applicable regulatory authority, or
(iv) the occurrence of any event with respect to any Pension
Plan which could reasonably be expected to result in the
incurrence by any Restricted Party of any material liability,
fine or penalty, or any increase in the contingent liability of
any Restricted Party in excess of $100,000 with respect to any
post-retirement Welfare Plan benefit.
(e) CHC shall immediately notify the Agent if either the Aircraft
model Sikorsky S61N, registration no. C-GSAB, serial no. 61823
or the Aircraft model Sikorsky S61N, registration no. C-GSBL,
serial no. 61754 is moved outside Nova Scotia.
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10.5 Ownership of the Restricted Parties
During the term of this Agreement, there shall not, without the prior
written consent of the Majority Lenders (which shall not be unreasonably
withheld), be any change in the ownership or control of the Restricted Parties
other than CHC from that described on Schedule F. In addition, there shall be no
change in the ownership of CHC that would result in Xx. X.X. Xxxxxx ceasing to
control CHC, except that his shares may be transferred within his immediate
family upon his death (as long as steps are immediately taken to preserve all
Permits for the operation of Aircraft by the Restricted Parties and no such
Permits are adversely affected) or for succession planning purposes (as long as
steps approved by the Majority Lenders are taken before any such transfer to
ensure that no such Permits are adversely affected).
10.6 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.
10.6.1 Financial Transactions and Encumbrances
No Restricted Party shall:
(a) create, incur, assume or permit any debts, liabilities or
obligations of any kind (including contingent liabilities and
Leases) to remain outstanding, other than Permitted
Obligations; [Note: Section amended by Eleventh Amending
Agreement]
(b) 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 payments under the 1987 Debentures and
payments required to redeem the 1987 Debentures in
their entirety, which CHC agrees to do on or before 30
June 2004 (in each case as long as no Event of Default
or Pending Event of Default has occurred and is
continuing or would result from payment being made);
[Note: Section amended by Twelfth Amending Agreement]
(iii) scheduled payments of interest under the 2004 Notes,
which may be made if no payment blockage period or
other suspension of the rights of the holders of 2004
Notes to receive payment contemplated in the
subordination provisions of the relevant Sub Debt
Indenture is in effect and no Event of Default or
Pending Event of Default has occurred and is continuing
or would occur as a result,
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payments necessary to purchase all 2000 Notes that are
tendered for purchase on or before 5 May 2004 in
response to CHC's tender offer at a price of up to
107.85% and payments necessary to redeem all 2000 Notes
that are not tendered for purchase, which CHC agrees to
do on 15 July 2004, in each case as long as no Event of
Default or Pending Event of Default has occurred and is
continuing or would result from payment being made;
[Note: Section Amended by Twelfth Amending Agreement.
In the Sixth Amending Agreement, the Lenders agreed
that notwithstanding Section 10.6.1(b), CHC may use a
portion of the proceeds of shares issued on 25 April
2002 to prepay up to 35% of the principal amount of the
2000 Notes at 111.75% of the principal amount thereof,
together with accrued and unpaid interest.]
(iv) payments in respect of the purchase money and other
obligations contemplated in item (k) of the definition
of "Permitted Encumbrances," and payments required to
discharge the Encumbrances on real estate in Norway
contemplated in item (o) of the definition of
"Permitted Encumbrances," which CHC agrees to make on
or before 30 June 2004; [Note: Section amended by
Twelfth Amending Agreement]
(v) payments in respect of Intercompany Loan Obligations
that are not prohibited by Section 10.1.1;
(vi) payments in respect of the Discovery Note as permitted
by Section 10.7;
(c) make loans to any other person, guarantee, endorse or otherwise
become liable for any debts, liabilities or obligations of any
other person, or give other financial assistance of any kind to
any other person, except for:
(i) the guarantees given as part of the Security or in
connection with the 2000 Notes and the 2004 Notes;
[Note: Section amended by Twelfth Amending Agreement]
(ii) loans and advances resulting in Intercompany Loan
Obligations, provided that it promptly complies with
Section 10.3.5(a) and promptly delivers any additional
documents reasonably required by the Agent to ensure
that the Intercompany Loan Obligation is secured,
guaranteed and assigned to the Agent for the benefit of
the Lenders in
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the same manner as similar Intercompany Loan
Obligations existing at the date of this Agreement;
(iii) guarantees that are Permitted Obligations or that are
in respect of debts, liabilities and obligations of
other Restricted Parties that are Permitted
Obligations;
(d) enter into any Swap except for (i) Swaps secured by the
Security as Other Secured Obligations and (ii) other Swaps that
are not entered into for speculative purposes, nor enter into
any Swap if the notional amount or the term of the proposed
transaction would adversely affect the Borrowers' ability to
make principal payments required under the terms of this
Agreement or, in the case of interest rate swaps and similar
transactions, the aggregate notional amount swapped by all
Restricted Parties at any time (net of offsetting transactions)
exceeds the outstanding amount of the Credits and the 2004
Notes at that time; [Note: Section amended by Twelfth Amending
Agreement]
(e) create, incur or assume or suffer to exist or cause or permit
any Encumbrance upon or in respect of any of its Property,
except for Permitted Encumbrances; or
(f) do or permit anything to adversely affect the ranking or
validity of the Security except by incurring a Permitted
Encumbrance.
10.6.2 Business and Property
No Restricted Party shall:
(a) effect any material change in its business as it exists at the
date of this Agreement;
(b) acquire any material Property of any person, except for:
(i) acquisitions of inventory and Parts in the ordinary
course of business for the purpose of carrying on its
business;
(ii) acquisitions of Capital Stock of operating companies
and acquisitions of Property in connection with the
acquisition of an operating business where the
aggregate cost of all such acquisitions for all
Restricted Parties does not exceed $35,000,000 or the
equivalent in other currencies in any fiscal year of
CHC [Note: Section amended by Seventh Amending
Agreement]
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(iii) acquisitions of Aircraft and other Property through
Capital Expenditures permitted by this Agreement or
otherwise consented to by the Majority Lenders;
[Note: In the Tenth Amending Agreement, notwithstanding Section
10.6.2(b), the Lenders consented to the Xxxxxxxxx Acquisition]
(c) incur Net Capital Expenditures in excess of an aggregate of
$15,000,000 for CHC on a consolidated basis in any fiscal year,
plus an amount equal to 50% of Excess Cash Flow in any fiscal
year, to the extent such Excess Cash Flow has not been used to
make Restricted Payments; the unused amount of Excess Cash Flow
may be carried forward from year to year and used to make Net
Capital Expenditures in a subsequent year in addition to funds
otherwise available for that purpose;
(d) have any Subsidiaries or hold or acquire Capital Stock or other
securities of, or make investments in, any other person except:
(i) other Restricted Parties as specified on Schedule F;
(ii) investments in other corporations as specified on
Schedule F;
(iii) others as permitted in item (b) above;
(e) permit any sale, lease or other disposition of the whole or any
material part of its Property, including any disposition as
part of which Lease obligations are assumed directly or by
guarantee by any Restricted Party, except for: [Note: Section
amended by Eleventh Amending Agreement]
(i) sales of inventory in the ordinary course of business
and sales of not greater than $2,000,000 each to
dispose of inventory in excess of that required for its
operating requirements, including its repair and
overhaul business;
(ii) (A) sales of Aircraft that are no longer required in
the Restricted Parties' fleet, in the normal course of
business for cash at fair market value, up to aggregate
proceeds of sale of $60,000,000 or the equivalent in
other currencies for all Restricted Parties in any
fiscal year of CHC and (B) sales or other dispositions
of Aircraft that are then Leased back, for cash at fair
market value, up to aggregate proceeds of sale of
$60,000,000 or the equivalent in other currencies for
all Restricted Parties in any fiscal year of CHC; the
dispositions and Lease backs of Super Puma L Aircraft
bearing serial numbers 2102 and 2106, AS365N2
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Aircraft bearing serial numbers 6392 and 6409, an
AS365N Aircraft bearing serial number 6088 and S76C
Aircraft bearing serial numbers 760408, 760415 and
760417 shall be included in calculating the limit for
CHC's fiscal year ending 30 April 2004; [Note: Section
amended by Eleventh Amending Agreement]
[Note: In the Eleventh Amending Agreement, the Lenders agreed
that the sale of the Super Puma L Aircraft bearing serial
number 2102 referred to above, together with the concurrent
amendment to Schedule K shall be considered as satisfying the
conditions regarding Heliworld Leasing Ltd. contained in
sections 2(e) and (f) of the Eighth Amending Agreement. The
Lenders also confirmed their consent, which was previously
communicated to CHC, to the dispositions and Lease backs of
Super Puma L Aircraft bearing serial numbers 2179, 2069, 2038
and 2075 that were completed on or about 30 April 2003 and
waived any conditions to that consent relating to the use of
the proceeds thereof, provided that CHC is in compliance with
Section 6.4.1.]
(iii) transactions that involve Aircraft that are
purchased and sold and leased back within 180
days after purchase under operating leases that
comply with Section 1.1.96(q)(iv);
(iv) dispositions (including leases) of Aircraft and
Parts that are permitted by Schedule M;
[Note: In the Eighth Amending Agreement, the Lenders
consented to the transfer by CHC Scotia Limited of its
overhaul services business and assets and its logistics
and base maintenance business and assets to Astec
Helicopter Service AS]
(f) enter into any transaction of any kind with any
affiliate or associate (as those terms are defined in
the Canada Business Corporations Act as of the date of
this Agreement), or person of which it is an associate
except on a commercially reasonable basis as if it were
dealing with such person on an arm's length basis, and
on other terms satisfactory to the Majority Lenders.
10.6.3 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;
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(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 Agent to
perfect the Security with respect to the change in name;
(c) permit its chief executive office to be located out of 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 Agent to perfect the Security with
respect to the change in location;
(d) change its fiscal year end (being 30 April for CHC), except
that HSG and its Subsidiaries may change their fiscal year end
to 30 April and Bond Helicopter Services Limited and its
Subsidiaries may change their fiscal year ends to either 30
April or 30 June;
(e) change its auditors;
(f) be a party to any amendment or waiver of the terms of the 1987
Debentures, the Discovery Note or any Intercompany Loan
Obligation;
(g) be a party to any amendment or waiver to the terms of the 2000
Notes or 2004 Notes or any documents relating to any of them,
other than amendments that do not in any way affect the
subordination provisions of the 2000 Notes or 2004 Notes and
that are for the sole purpose of curing any immaterial
ambiguity, defect or inconsistency in other provisions of the
2000 Notes or 2004 Notes, 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;
[Note: Section amended by Twelfth Amending Agreement]
(h) give any notice, make any statement or otherwise claim that a
"Payment Default" or "Non-Payment Default" (each as defined in
the Sub Debt Indentures) has been cured or waived or has ceased
to exist without the prior written consent of the Agent acting
on the instructions of the Lenders or Majority Lenders as
required by Sections 12.7.2 and 12.7.3.
[Note: In the Tenth Amending Agreement, notwithstanding Section 10.6, the
Lenders consented to the following arrangement with Fortis Bank to be
implemented after completion of the Xxxxxxxxx Acquisition, repayment of all
other obligations of Xxxxxxxxx and its Subsidiaries to Fortis Bank and release
of all other Encumbrances held by Fortis Bank:
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(A) Xxxxxxxxx Airways BV will continue to be liable to Fortis Bank
for reimbursement of any payments made by Fortis Bank under a
letter of credit in the amount of US $15,900,000 issued to Veba
Oil BV to secure prepayment of the purchase price of a
Bombardier Dash 8 Q-300 aircraft which has been purchased by
Xxxxxxxxx Airways BV and modified for resale to Veba Oil BV;
(B) Fortis Bank will hold a mortgage on that aircraft and CHC will
guarantee the reimbursement obligations of Xxxxxxxxx Airways
BV;
(C) the mortgage held by Fortis Bank and CHC's guarantee will be
released upon sale of the aircraft to Veba Oil BV, which is
expected to occur by 1 March 2004.]
10.7 Payments by CHC
CHC shall not make any Restricted Payment, except that, if no Event of
Default or Pending Event of Default has occurred or would result from payment:
(a) CHC may pay interest on the Discovery Note monthly at a rate of
12% per annum;
(b) after it has made all other payments required to be made to the
Lenders from Excess Cash Flow, CHC may pay dividends to its
shareholders which shall not in any fiscal year exceed 25% of
its Excess Cash Flow for the preceding fiscal year if the Total
Debt Ratio is less than 3.50 to 1 at the time of payment and
the lesser of 25% of its Excess Cash Flow for the preceding
fiscal year and $1,750,000 if the Total Debt Ratio is greater
than or equal to 3.50 to 1 at the time of payment;
(c) CHC may repurchase its Capital Stock in accordance with a
normal course issuer bid approved by the Toronto Stock Exchange
over the 12 month period ending 31 March 2004 for an aggregate
amount not in excess of $25,000,000. [Note: Section added by
Ninth Amending Agreement]
10.8 Limits on Certain Restricted Parties
Each Restricted Party listed on Schedule K shall comply with the
limits on its Property, business activities and other matters described on that
Schedule and each Restricted Party which owns Capital Stock of any other person
listed on Schedule K shall cause that person to comply with the limits on its
Property, business activities and other matters described on that Schedule.
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10.9 Use of Insurance Proceeds
10.9.1 Unless otherwise specified in this Section or Section 4.5, all
proceeds of insurance required to be maintained by the Restricted Parties under
the terms of this Agreement shall be paid to the Agent and be applied by it to
repay the Obligations and permanently reduce the amount of one or more Credits,
either directly or through repayment of Intercompany Loan Obligations.
10.9.2 Proceeds of liability insurance shall be paid to the person to whom
the affected Restricted Party is liable.
10.9.3 Proceeds of insurance covering loss of or damage to Property that is
the subject of a Permitted Encumbrance having priority over the Security may be
paid to the holder of the Permitted Encumbrance. Other proceeds of insurance
covering loss of or damage to Property and proceeds of business interruption
insurance in an amount of less than $2,500,000 per claim 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 Agent. Any such proceeds in an amount greater than
$2,500,000 per claim shall be paid by the insurer to the Agent. Proceeds of such
insurance (including those received by the Agent) shall, in any event, be used
in accordance with Section 4.5. Where proceeds are greater than $2,500,000 and
are used to repay Credits A and/or B, the Majority Lenders may impose conditions
on re-advancing those proceeds under Credits A and/or B with a view to ensuring
that proceeds relating to loss of or damage to Property are used to fully repair
or replace the Property in respect of which the insurance proceeds are payable
or, in the case of loss of Aircraft, to obtain alternate or additional Aircraft
selected by CHC or the affected Restricted Party in its best judgment, or to
repay the Obligations as they fall due from time to time (including as a result
of any demand for payment of the Obligations).
ARTICLE XI
DEFAULT
11.1 Events of Default
Each of the following events shall constitute an Event of Default
under this Agreement:
(a) a Borrower fails to pay any amount of principal or interest
(including any amount relating to a Bankers' Acceptance or L/C)
when due or, to pay fees or other Obligations (apart from
principal and interest) within three 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
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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, 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 Sub Debt or the
Discovery Note) or permits any other event to occur and to
continue after any applicable grace period specified in such
agreements or instruments, if the effect of one or more of such
events is to accelerate, or to permit (in accordance with any
applicable inter-creditor and subordination arrangements) the
acceleration of, the date on which Debt in an aggregate amount
of US $1,000,000 or more becomes due (whether or not
acceleration actually occurs); or
(e) a Restricted Party becomes a bankrupt (voluntarily or
involuntarily); or
(f) a Restricted Party becomes subject to any proceeding or other
action for liquidation, arrangement, winding up, relief of
creditors or the appointment of a receiver, trustee or
administrator over, or becomes subject to a judgment or order
which has or might have a material and adverse effect on, any
material part of its Property, and such proceeding, if
instituted against the Restricted Party, or such judgment or
order, is not contested diligently, in good faith and on a
timely basis and dismissed or stayed within 45 days of its
commencement or issuance; or
(g) a Restricted Party denies, to any material extent, its
obligations under the Credit Documents or claims any of the
Credit Documents to be invalid or withdrawn in whole or in part
(including but not limited to any purported termination of any
guarantee); or any of the Credit Documents is invalidated by
any act, regulation or governmental action or is determined to
be invalid by a court or other judicial entity and such
determination has not been stayed pending appeal; or
(h) a final judgment, writ of execution, garnishment or attachment
or similar process is issued or levied against any of the
Property of a Restricted Party and such judgment, writ,
execution, garnishment, attachment or similar process is not
released, bonded, satisfied, discharged, vacated or stayed
within 10 days after its entry, commencement or levy; or
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(i) 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
(j) there is a breach of Section 10.2 or 10.5, or CHC fails to make
an offer to repay Advances upon an event of failure as required
by Section 4.5.2; or
(k) there is a breach of any other provision of any of the Credit
Documents and such breach (if it is capable of being corrected
or otherwise satisfied) is not corrected or otherwise satisfied
within 30 days after the Agent, for and on behalf of the
Lenders, gives written notice thereof; or
(l) any Material Permit expires or is withdrawn, cancelled,
terminated, or modified to the material detriment of a
Restricted Party or its Property or business, and is not
reinstated or replaced within five days thereafter without
material impairment to its Property or business; or
(m) a default by a Restricted Party or any other party to any
Material Contract occurs, or any other event occurs under any
Material Contract, and continues without being waived after any
applicable grace period specified in the Material Contract, if
the effect of the default or other event (if not waived) is to
terminate the Material Contract or if the default or other
event results in a declaration of non-performance being issued
or similar step being taken with respect to a Restricted Party.
11.2 Acceleration and Termination of Rights
If any Event of Default occurs, no Lender shall be under any further
obligation to make Advances or to accept orders as Bankers' Acceptance and the
Majority Lenders may instruct the Agent to give notice to the Borrowers (i)
declaring the Lenders' obligations to make Advances to be terminated, whereupon
the same shall forthwith terminate, (ii) declaring the Obligations or any of
them to be forthwith due and payable, whereupon they shall become and be
forthwith due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the Borrowers, and/or
(iii) demanding that each Borrower deposit forthwith with the Agent for the
Lenders' benefit Collateral equal to the full principal amount at maturity of
all Bankers' Acceptances and L/Cs then outstanding for its account.
Notwithstanding the preceding clause, 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
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Agent or the Lenders, and without presentment, demand or protest, the Lenders'
obligation to make Advances shall immediately terminate, the Obligations shall
immediately become due and payable and each Borrower shall be obligated to
deposit forthwith with the Agent for the Lenders' benefit Collateral equal to
the full principal amount at maturity of all Bankers' Acceptances and L/Cs then
outstanding for its account.
11.3 Payment of Bankers' Acceptances and L/Cs
Immediately upon any Obligations becoming due and payable under
Section 11.2, each Borrower shall, without necessity of further act or evidence,
be and become thereby unconditionally obligated to deposit forthwith with the
Agent for the Lenders' benefit Collateral equal to the full principal amount at
maturity of all Bankers' Acceptances and L/Cs then outstanding for its account
and each Borrower hereby unconditionally promises and agrees to deposit with the
Agent immediately upon such demand Collateral in the amount so demanded. Each
Borrower authorizes the Lenders, or any of them, to debit its accounts with the
amount required to pay such L/Cs, and to pay such Bankers' Acceptances,
notwithstanding that such Bankers' Acceptances may be held by the Lenders, or
any of them, in their own right at maturity. Amounts paid to the Agent pursuant
to such a demand in respect of Bankers' Acceptances and L/Cs shall be applied
against, and shall reduce, pro rata among the Lenders, to the extent of the
amounts paid to the Agent in respect of Bankers' Acceptances and L/Cs,
respectively, the obligations of the relevant Borrower to pay amounts then or
thereafter payable under Bankers' Acceptances and L/Cs, respectively, at the
times amounts become payable thereunder.
A Borrower shall be entitled to receive interest on cash held as
Collateral in accordance with Section 14.15.
11.4 Remedies
Upon the occurrence of any event by which any of the Obligations
become due and payable under Section 11.2, the Security shall become immediately
enforceable and the Majority Lenders may instruct the Agent to take such action
or proceedings on behalf of the Lenders 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.
11.5 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
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foregoing, except that a Lender may be responsible or liable for any loss or
damage arising from the wilful misconduct or gross negligence of that Lender.
11.6 Perform Obligations
If an Event of Default has occurred and is continuing and if any
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.
11.7 Third Parties
No person dealing with the Lenders or any agent of the Lenders shall
be concerned to inquire whether the Security has become enforceable, or whether
the powers which the Lenders are purporting to exercise have become exercisable,
or whether any Obligations remain outstanding upon the security thereof, or as
to the necessity or expediency of the stipulations and conditions subject to
which any sale shall be made, or otherwise as to the propriety or regularity of
any sale or other disposition or any other dealing with the collateral charged
by such Security or any part thereof.
11.8 Power of Attorney
Effective upon occurrence of an Event of Default, each Restricted
Party hereby irrevocably constitutes and appoints any Managing Director,
Vice-President or more senior officer of the Agent its due and lawful attorney
with full power of substitution in its name and on its behalf, during the
continuance of an Event of Default, to enforce any right, title or interest of
the Lenders in, to or under the Security or any part thereof or any obligation
to that Restricted Party or remedy available to that Restricted Party. This
appointment is effective and irrevocable to the maximum extent permitted by
applicable law.
11.9 Remedies Cumulative
The rights and remedies of the Lenders under the 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.
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11.10 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 11.2, 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, 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 XII
THE AGENT AND THE LENDERS
12.1 Authorization of Agent and Relationship
Each Lender hereby appoints BNS as Agent and BNS hereby accepts its
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 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 are 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 it to personal liability or which is contrary to
this Agreement or applicable law.
Without limiting the foregoing, each of the Lenders hereby appoints
the Agent as security trustee for the purposes of Scottish and other relevant
law, and grants to the Agent a power of attorney, for the purposes of laws
applicable to the Security from time to time, to sign documents comprising the
Security from time to time (as the party accepting the grant of the security),
and also grants to the Agent the right to delegate its authority as attorney to
any other person, whether or not an officer or employee of the Agent.
12.2 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
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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 Lenders 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 their
Commitments, the Lender acting as Agent shall have the same rights and powers
hereunder as any other Lender, and may exercise the same as though they were not
performing the duties and functions delegated to it as Agent hereunder.
12.3 Failure of Lender to Fund
12.3.1 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 8.11 or 8.16, 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 relevant 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 a 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 relevant 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.
12.3.2 Notwithstanding the provisions of Section 12.3.1, 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 relevant Borrower
and the other Lenders. The Agent shall then forthwith give notice to the other
Lenders that any Lender may make available to the Agent all or any portion of
the Defaulting Lender's Proportionate Share
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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 relevant 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.
12.4 Payments by the Borrowers
All payments made by or on behalf of the Borrowers pursuant to this
Agreement shall be made to and received by the Agent and shall be distributed by
the Agent to the Lenders as soon as possible upon receipt by the Agent. Except
as required to make payments in respect of the Other Secured Obligations or as
otherwise provided in this Agreement (including but not limited to Sections 8.1
and 12.5), 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.
[Note: Section amended by Fourth Amending Agreement]
If the Agent does not distribute a Lender's share of a payment made by
a Borrower to that Lender for value on the day that payment is made or deemed to
have been made to the Agent, the Agent shall pay to the Lender on demand an
amount equal to
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the product of (i) the Interbank Reference Rate per annum multiplied by (ii) the
Lender's share of the amount received by the Agent from the Borrower and not so
distributed, multiplied by (iii) a fraction, the numerator of which is the
number of days that have elapsed from and including the date of receipt of the
payment by the Agent to but excluding the date on which the payment is made by
the Agent to such Lender and the denominator of which is 365. The Agent shall be
entitled to withhold any Tax applicable to any such payment as required by law.
12.5 Payments by Agent
12.5.1 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 relevant Borrower;
(b) if the Agent receives less than the full amount of any payment
of principal, interest, fees or other amount owing by a
Borrower under this Agreement, the Agent shall have no
obligation to remit to each Lender any amount other than such
Lender's 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 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 a 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.
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12.5.2 Unless the Agent has actual knowledge that a 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 the 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 relevant
Borrower under this Section shall be prima facie 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.
12.6 Direct Payments
The Lenders agree among themselves that, except as otherwise provided
for in this Agreement (including but not limited to Sections 14.13 and 14.14),
except as necessary to adjust for Advances that are not in each Lender's
Proportionate Share under any Credit, and except for receipts relating to the
Other Secured Obligations, all sums received by a Lender relating to this
Agreement after any Obligations become due and payable under Section 11.2 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 accordance with its Proportionate Share, taking into account all
Credits, and each Lender 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 as shall be
necessary to cause such purchasing Lender to share the excess amount rateably
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 12.5.
12.7 Administration of the Credits
12.7.1 Unless otherwise specified herein, the Agent shall perform the
following duties under this Agreement:
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(a) prior to an Advance, ensure that all conditions precedent have
been fulfilled in accordance with the terms of this Agreement,
subject to Section 12.8.2 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 8.11 and 8.16;
(c) use reasonable efforts to collect promptly all sums due and
payable by the Borrowers pursuant to this Agreement;
(d) make all payments to the Lenders in accordance with the
provisions hereof;
(e) hold the Security on behalf of the Lenders 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 Borrowers to
the Agent, all remittances and payments made by the Agent to
the Lenders and all fees or any other sums received by the
Agent and, except for accounts, records and documents relating
to the fees payable under the Fee Agreement, allow each Lender
and their respective advisors to examine such accounts, records
and documents at their own expense, and provide any Lender,
upon reasonable notice, with such copies thereof as such Lender
may reasonably require from time to time at the Lender's
expense;
(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 Borrowers),
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
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(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 have a material adverse effect on the
Restricted Parties' ability to comply with this Agreement or
the Security or of any material adverse information coming to
the attention of the Agent (using reasonable efforts) relative
to the Security or of the occurrence of any material adverse
change in the financial condition or property of the Restricted
Parties, 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.
12.7.2 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 12.7.3, 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 relevant 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 12.7.3;
(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 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
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(g) enter into or amend, modify or waive any term of any
Intercreditor Agreement.
12.7.3 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;
(c) amend the definition of "Majority Lenders" or this Section
12.7.3.
For greater certainty, no Lender's Commitment or Proportionate Share
may be amended without the consent of that Lender.
12.7.4 Notwithstanding Sections 12.7.2 and 12.7.3, 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 discharge any Security to the extent necessary to allow any
Restricted Party to complete any sale or other disposition of Property or other
action (such as the transfer of Aircraft from one jurisdiction to another) that
is permitted by this Agreement to be made without the consent of the Lenders or
Majority Lenders. [Note: Section amended by Fourth Amending Agreement]
12.7.5 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 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;
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(c) all payments which are delivered by the Borrowers to the Agent
in accordance with this Agreement shall be deemed to have been
duly delivered to each of the Lenders;
(d) unless an Event of Default or Pending Event of Default has
occurred and is continuing, CHC's consent to the appointment of
any Successor Agent must be obtained, but CHC's consent shall
not be unreasonably withheld.
12.8 Rights of Agent
12.8.1 In administering the Credits, the Agent may retain, at the expense of
the Lenders if such expenses are not recoverable from the Borrowers, 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.
12.8.2 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 a 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.
12.8.3 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.
12.8.4 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.
12.8.5 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 CHC
from time to time.
12.9 Acknowledgements, Representations and Covenants of Lenders
12.9.1 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
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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.
12.9.2 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.
12.9.3 Each Lender agrees to indemnify the Agent (to the extent not
reimbursed by the Borrowers), rateably according to its Proportionate Share,
taking into account all Credits, 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, taking into account all
Credits, 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 Borrowers. 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.
12.9.4 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.
12.9.5 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.
12.9.6 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.
12.10 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
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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.
12.11 Successor Agent
Subject to the appointment and acceptance of a Successor Agent as
provided in this Section, and subject to Section 12.7.5(d), the Agent may resign
at any time by giving 30 days' written notice thereof to the Lenders and CHC.
Upon receipt of notice by the Lenders of the resignation of 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 Halifax and
Toronto (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, 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.
12.12 Provisions Operative Between Lenders and Agent Only
Except for the provisions of Sections 12.7.5, 12.9.2, 12.9.5, 12.10,
12.11 and 12.12, the provisions of this Article relating to the rights and
obligations of the Lenders and the Agent inter se shall be operative as between
the Lenders and the Agent only, and the Restricted Parties shall not have any
rights or obligations under or be entitled to rely for any purpose upon such
provisions.
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ARTICLE XIII
ADDITIONAL LENDERS,
SUCCESSORS AND ASSIGNS
13.1 Successors and Assigns
13.1.1 The Credit Documents shall be binding upon and enure to the benefit of
the Agent, 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 13.2 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.
CHC shall assist the Agent with syndication of the Credits and the
Agent shall consult with CHC concerning the syndication of the Credits. CHC's
assistance shall include (i) provision of all information reasonably deemed
necessary by the Agent to successfully complete syndication efforts, including
but not limited to, information and projections prepared by CHC or its financial
advisors relating to the Restricted Parties, (ii) assistance upon the Agent's
request in the preparation of a syndication memorandum and all other marketing
materials to be used in connection with the syndication, (iii) ensuring that the
management of the Restricted Parties make themselves available to participate in
syndication presentations and meetings, and (iv) best efforts to use CHC's other
lending relationships to benefit syndication efforts.
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 $10,000,000.
Notwithstanding any other provisions of this Agreement, each Lender
agrees that it shall not offer to assign or assign or offer to sell or sell
participations in 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, which shall not be unreasonably withheld. The
Lenders agree that the Agent's consent shall not be considered to be
unreasonably withheld if the proposed assignment or participation would result
in any material additional cost being incurred by the Borrowers, including but
not limited to any gross-up for withholding tax under Section 14.13, but
excluding any increase in the discount rate applicable to Bankers' Acceptances
of the proposed assignee compared to the assignor, or if the creditworthiness of
a proposed assignee is materially lower than the assignor's.
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13.1.2 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 any Borrower. A payment (other than any premium or discount) made by
an assignee to an assigning Lender in order for the assignee to assume its
Proportionate Share of Advances made by the assigning Lender will reduce the
Advances owing by the Borrowers 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.
13.2 Assignments
13.2.1 Subject to Section 13.1 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 and recording in the Register
and, except in the case of an assignment by the Lenders collectively or an
assignment by a Lender to an affiliate of that Lender, shall pay a processing
and recording fee of $3000 to the Agent. 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 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.
13.2.2 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.
13.2.3 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 each
Credit 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 Borrowers, 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 CHC or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
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13.2.4 Upon its receipt of an Assignment Agreement executed by an assigning
Lender and an assignee and approved by the Agent, 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:
(a) record the information contained therein in the Register; and
(b) give prompt notice thereof to CHC and the other Lenders, and
provide them with an updated version of Schedule E.
13.3 Participations
Each Lender may (subject to the provisions of Section 11.1) 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 Commitments), but the participant
shall not become a Lender and:
(a) the Lender's obligations under this Agreement (including,
without limitation, its Commitments) shall remain unchanged;
(b) the Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations;
(c) the Borrowers, 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 14.14. 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
14.13 except to the extent that the Lender from whom it has obtained its
participation is itself entitled to compensation under that Section.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 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.
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14.2 Accounting Terms
Each accounting term used in this Agreement, unless otherwise defined
herein, has the meaning assigned to it under GAAP.
14.3 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.
14.4 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.
14.5 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.
14.6 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. 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.
14.7 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 governed by and construed in accordance with, the laws of
the Province of Ontario and the laws of Canada applicable in Ontario. Each party
to this Agreement
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hereby irrevocably and unconditionally attorns to the non-exclusive jurisdiction
of the courts of Ontario and all courts competent to hear appeals therefrom.
Each of the Restricted Parties hereby nominates, constitutes and
appoints Messrs. Xxxxxx Xxxxxxx of Xxxxx 0000, X.X. Xxx 000, Xxxxx Xxxxx Xxxxx,
Xxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0X0, as its agent for service, to
act as such and as such to xxx and be sued, plead and be impleaded in any court
in Ontario, and generally on its behalf to accept service of process and to
receive all notices and to do all acts and to execute all deeds and other
instruments relating to proceedings in any court in Ontario. This appointment
shall be irrevocable without the prior consent of the Majority Lenders upon the
appointment of a substitute agent acceptable to the Majority Lenders acting
reasonably and, until that time, service of process or of papers and notices
relating to proceedings in any court in Ontario upon Messrs. Xxxxxx Xxxxxxx
shall be sufficient service on the Restricted Parties.
14.8 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.
14.9 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.
14.10 Currency
All payments made hereunder shall be made in the currency in respect
of which the obligation requiring such payment arose. Unless the context
otherwise requires, all amounts expressed in this Agreement in terms of money
shall refer to Canadian Dollars.
Except as otherwise expressly provided in this Agreement, wherever
this Agreement contemplates or requires the calculation of the equivalent in one
Approved Currency of an amount expressed in another Approved Currency, the
calculation shall be made on the basis of the Exchange Rate at the effective
date of the calculation.
14.11 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 for which they have made Commitments.
-110-
14.12 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 Borrowers 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; and (iv) other matters
relating to the Credits, excluding any assignment or participation of an
interest in the Credits following the initial Advance under this Agreement. Such
costs and expenses shall be payable whether or not an Advance is made under this
Agreement.
The Borrowers shall indemnify the Lenders, the Agent, and each of
them, 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 any 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 a 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 a Borrower and communicated to the Agent,
(v) any breach by a Restricted Party of its representations and covenants in
this Agreement relating to Hazardous Materials and other environmental matters,
(vi) any other default by a Restricted Party hereunder, (vii) any liability
incurred as a result of being the pledgee of Pledged Shares, including but not
limited to Pledged Shares issued by Flight Handling Limited, and (viii)
generally, the Lenders and the Agent having entered into this Agreement and the
other Credit Documents and made Advances to the Borrowers. A certificate of a
Lender or the Agent as to the amount of any such loss or expense shall be prima
facie 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.
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The agreements in this Section shall survive the termination of this
Agreement and repayment of the Obligations.
14.13 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 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. If any
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 (other than an
Excluded Tax) in the jurisdiction in which the person making a payment under the
Credit Documents is located as a result of a payment being made without the
required Tax in that jurisdiction having been deducted or withheld, the payer
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 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.
14.14 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
-112-
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 prima facie 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.
14.15 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 a 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. The Lenders shall be entitled to
withhold any Tax applicable to any such payment as required by law.
14.16 Currency Indemnity
In the event of a judgment or order being rendered by any court or
tribunal for the payment of any amounts owing to the Lenders or any of them
under this Agreement or for the payment of damages in respect of any breach of
this Agreement or under or in respect of a judgment or order of another court or
tribunal for the payment of such amounts or damages, such judgment or order
being expressed in a currency ("the Judgment Currency") other than the currency
payable hereunder or thereunder ("the Agreed Currency"), the party against whom
the judgment or order is made shall indemnify and hold the Lenders harmless
against any deficiency in terms of the Agreed Currency in the amounts received
by the Lenders arising or resulting from any variation as between (i) the
Exchange Rate at which the Agreed Currency is converted into the Judgment
Currency for the purposes of such judgment or order, and (ii) the Exchange Rate
at which each Lender is able to purchase the Agreed Currency with the amount of
the Judgment Currency actually received by the Lender on the date of such
receipt. The indemnity in this Section shall constitute a separate and
independent obligation from the other obligations of the Restricted Parties
hereunder, shall apply irrespective of any indulgence granted by the Lenders,
and shall be secured by the Security.
-113-
14.17 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 CHC.
14.18 Time of the Essence
Time shall be of the essence in this Agreement.
14.19 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.
14.20 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.
14.21 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.
14.22 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.
-114-
14.23 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.
14.24 Entire Agreement
This Agreement and the Fee Agreement constitute the entire agreement
between the parties hereto concerning the matters addressed in this Agreement,
and cancel and supersede any prior agreements, undertakings, declarations or
representations, written or verbal, in respect thereof. Without limiting the
foregoing, the commitment letter and term sheet from BNS to CHC dated 29 June
2000 are cancelled and superseded, except to the extent that the letter
constitutes the Fee Agreement.
14.25 Date of Agreement
This Agreement may be referred to as being dated 5 July 2000 or as of
5 July 2000, notwithstanding the actual date of execution
[The balance of this page has been intentionally left blank]
-115-
IN WITNESS OF WHICH, the parties have executed this Agreement on
______________ July 2000.
Address For Notice
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
Bank Finance, Atlantic
4th Floor, 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxxxx
X0X 0X0
By:
Attention: Managing Director --------------------------
Fax No.: (000) 000-0000 X.X. Xxxxxxx
Managing Director
By:
--------------------------
X.X. Xxxxxx
Director
[signature page for Amended and Restated Credit Agreement dated as of 5 July
2000 relating to
CHC Helicopter Corporation et al]
-116-
Address For Notice
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
IBD Loan Administration as agent
and Agency Services
00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0 By:
--------------------------
Attention: Senior Manager Name:
Fax No.: (000) 000-0000 Title:
By:
--------------------------
Name:
Title:
[signature page for Amended and Restated Credit Agreement dated as of 5 July
2000 relating to
CHC Helicopter Corporation et al]
-117-
----------------------- ------------------------------
Sylvain Xxxxxx Xx Xxxx Zurel
each signing in his capacity as an authorized officer or director or holder of a
subsisting power of attorney of, or being otherwise authorized to sign on behalf
of, each of the Restricted Parties other than Canadian Helicopters (Barbados)
Limited, CHL Leasing (Barbados) Limited, Vinland Denmark A/S, Danish
International Helicopters ApS and Brintel ApS, and not in his personal capacity.
Address For Notice
CHC Helicopter Corporation
Xxxxxx Xx. 0
Xx. Xxxx'x Airport
X.X. Xxx 0000
Xx. Xxxx'x, Xxxxxxxxxxxx
X0X 0X0
[signature page for Amended and Restated Credit Agreement dated as of 5 July
2000 relating to CHC Helicopter Corporation et al]
-118-
VINLAND DENMARK A/S
By:
--------------------------
Name:
Title:
DANISH INTERNATIONAL
HELICOPTER ApS
By:
--------------------------
Name:
Title:
BRINTEL ApS
By:
--------------------------
Name:
Title:
[signature page for Amended and Restated Credit Agreement dated as of 5 July
2000 relating to CHC Helicopter Corporation et al]
-119-
CANADIAN HELICOPTERS
(BARBADOS) LIMITED
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
CHL LEASING
(BARBADOS) LIMITED
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
[signature page for Amended and Restated Credit Agreement dated as of 5 July
2000 relating to CHC Helicopter Corporation et al]
SCHEDULE A
NOTICE OF ADVANCE, PAYMENT, ROLLOVER OR CONVERSION
[Note: Schedule amended by Tenth Amending Agreement]
[see reference in Section 8.6]
TO: THE BANK OF NOVA SCOTIA
Wholesale Banking Operations
Loan Operations
000 Xxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Senior Manager
Fax No.: 000-000-0000
We refer to the amended and restated credit agreement dated as of 5
July 2000 between CHC Helicopter Corporation and others as Restricted Parties,
The Bank of Nova Scotia as Agent and the Lenders named therein, as amended,
supplemented, restated or replaced from time to time (the "Credit Agreement").
All capitalized terms used in this certificate and defined in the Credit
Agreement have the meanings defined in the Credit Agreement.
Request for Advance
Notice is hereby given pursuant to Section 8.6 of the Credit Agreement
that the undersigned hereby irrevocably requests as follows:
(A) that an Advance be made under the following Credit [check one]:
Credit A / /
Credit B / /
Credit C / /
Credit D / /
Credit E / /
(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____________________
-2-
(D) the Advance shall be in the form of [check one or more and
complete details]:
Prime Rate / /
Amount $_____________
Bankers' Acceptances / /
Face Amount: _____________
Term: _____________
Base Rate Advance / /
Amount: US$_____________
Amount: (pound)_____________
LIBOR Advance / /
Currency: _____________
Amount: _____________
End of LIBOR Period: _____________
L/C / /
Nominal Amount:____________
Expiry Date:_______________
[Note: attach proposed form or details]
(E) the proceeds of the Advance shall be deposited in [specify
Designated Account]
The undersigned hereby confirms as follows:
(a) the representations and warranties made in Section 9.1 of the Credit
Agreement, other than those expressly stated to be made as of a
specific date, are true on and as of the date hereof with the same
effect as if such representations and warranties had been made on and
as of the date hereof;
(b) no 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;
(c) after reasonable inquiry, the undersigned has no reason to believe
that CHC will not be in compliance with all covenants contained in
Section 10.2 of the Credit Agreement at the end of CHC's current
fiscal quarter and was not in compliance with those covenants at the
end of its immediately preceding fiscal quarter if it has not yet
delivered its Reporting Certificate for that quarter;
(d) the undersigned will immediately notify you if it becomes aware of the
occurrence of any event which would mean that the statements in the
immediately preceding clauses (a), (b) and (c) would not be true if
made on the Drawdown Date;
-3-
(e) all other conditions precedent set out in Section 7.2 [and Section 7.1
as applicable] of the Credit Agreement have been fulfilled. Without
limiting the foregoing, in the case of an Advance under Credit B to a
European Borrower, the amount of debt permitted to be incurred
pursuant to clause 1008(b)(i) of the Sub Debt Indentures for each of
the 2000 Notes (while they remain outstanding) and the 2004 Notes is
not less than US$o [Note: Section amended by Third and Twelfth
Amending Agreements]
Notice of Payment, Rollover or Conversion
Pursuant to Section 8.6 of the Credit Agreement, the undersigned
hereby irrevocably notifies you of the following:
(a) that a payment, rollover or conversion will be made under the
following Credit [check one]:
Credit A / /
Credit B / /
Credit C / /
Credit D / /
Credit E / /
(b) the payment, rollover or conversion represents the following
[check one or more]:
reduction in Advances under Credit / /
rollover of existing Advances as the same / /
type of Advance under Credit
(c) conversion of existing Advances to another / /
type of Advance under Credit
the payment, rollover or conversion date shall be
_____________________
(d) the Advance to be paid, rolled over or converted shall be in
the form of [check one or more and complete details]:
Prime Rate / /
Amount $______________
Bankers' Acceptances / /
Face Amount: ______________
Maturity Date: ____________
Base Rate Advance / /
Amount: US$____________
Amount: (pound)________
-4-
LIBOR Advance / /
Currency: ____________
Amount: ____________
Start of current LIBOR Period:____________
DATED
---------------------------
[BORROWER]
By:
--------------------------
Name:
Title:
cc. The Bank of Nova Scotia
Corporate Banking, Atlantic
4th Floor, 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxxxx
X0X 0X0
Attention: Managing Director
Fax No.: (000) 000-0000
The Bank of Nova Scotia
Corporate Banking, Loan Syndications
00 Xxxx Xxxxxx Xxxx
Xxxxxx Plaza, 62nd Floor
Toronto, Ontario
M5W 2X6
Attention: Managing Director
Fax No.: (000)000-0000
SCHEDULE B
AGREEMENT OF NEW RESTRICTED SUBSIDIARY
SUPPLEMENT TO CREDIT AGREEMENT
[see reference in Section 6.1.1]
THIS AGREEMENT supplements the amended and restated credit agreement
dated as of 5 July 2000 between CHC Helicopter Corporation and others as
Restricted Parties, The Bank of Nova Scotia as Agent and the Lenders named
therein, as amended, supplemented, restated or replaced from time to time (the
"Credit Agreement").
RECITALS
A. Capitalized terms used and not defined in this Agreement have the
meanings defined in the Credit Agreement.
B. The Credit Agreement contemplates that further Subsidiaries of CHC
shall become 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.
IN WITNESS OF WHICH, the undersigned have executed this Agreement as
of O.
THE BANK OF NOVA SCOTIA
By:
--------------------------
Name:
Title:
[New Subsidiary]
By:
--------------------------
Name:
Title:
[Note: Appendix A to be attached to list Security]
SCHEDULE C
REPORTING CERTIFICATE
[Note: Schedule C amended by Eleventh Amending Agreement]
[see reference in Section 1.1.105]
TO: THE LENDERS (as defined in the Credit Agreement referred to below)
AND TO: THE BANK OF NOVA SCOTIA, as Agent
-------------------------------------------------------------------------------
We refer to Section 10.4.1(d) of the amended and restated credit
agreement dated as of 5 July 2000 between CHC Helicopter Corporation and others
as Restricted Parties, The Bank of Nova Scotia as Agent and the Lenders named
therein, as amended, supplemented, restated or replaced from time to time (the
"Credit Agreement"). All capitalized terms used in this certificate and defined
in the Credit Agreement have the meanings defined in the Credit Agreement.
1. CHC hereby certifies that:
(a) the representations and warranties made in Section 9.1 of the
Credit Agreement, other than those expressly stated to be made
as of a specific date, are true on and as of the date hereof
with the same effect as if such representations and warranties
had been made on and as of the date hereof;
(b) no Pending Event of Default or Event of Default has occurred
and is continuing on the date hereof [or as the case may be].
2. CHC hereby certifies that, as of [specify fiscal quarter end that is subject
of certificate]:
(a) the Total Debt Ratio was __________________ to 1;
(b) the Senior Debt Ratio was __________________ to 1;
(c) the Adjusted Total Debt Ratio was _________________ to 1;
(d) the Interest Coverage Ratio was _________________ to 1;
(e) the Fixed Charge Coverage Ratio was ________________ to 1.
3. Appendix A attached is a report concerning the current location of all
Aircraft of the Restricted Parties. [Note: a report concerning the specific
location of each Aircraft (e.g. municipality) within a particular jurisdiction
(e.g. province or country) is only required annually, but the jurisdiction must
be reported quarterly. Identify each Aircraft that is considered eligible to be
included in the Borrowing Base]
-2-
4. Appendix B attached contains a report of the amount of all Intercompany
Obligations as of the end of CHC's most-recently completed fiscal quarter.
5. Appendix C attached contains details of all Other Secured Obligations as of
the end of CHC's most-recently completed fiscal quarter that have not previously
been listed on Schedule G to the Credit Agreement.
6. Appendix D attached is an up to date version of Schedule F to the Credit
Agreement. [or There has been no change to the information contained in the
version of Schedule F to the Credit Agreement dated O] [Note: a complete update
of Schedule F is only required annually; information on shareholders of and
shareholdings by each Restricted Party must be updated quarterly]
7. Appendix E attached sets out the calculations of the Total Debt Ratio, Senior
Debt Ratio, Adjusted Total Debt Ratio, Interest Coverage Ratio and Fixed Charge
Coverage Ratio referred to above.
8. Appendix F attached sets out details of the sales of Aircraft that have been
made pursuant to Section 10.6.2(e)(ii)(A) of the Credit Agreement during CHC's
fiscal year ending on [specify fiscal year of which quarter to which certificate
relates is part].
9. Appendix G attached sets out details of the sales and other dispositions with
Lease backs of Aircraft that have been made pursuant to Section 10.6.2(e)(ii)(B)
of the Credit Agreement during CHC's fiscal year ending on [specify fiscal year
of which quarter to which certificate relates is part].
10. Appendix H attached contains a calculation of the Borrowing Base as of
[specify fiscal quarter end that is subject of certificate].
DATED
----------------------
CHC HELICOPTER CORPORATION
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
-3-
APPENDIX H
BORROWING BASE CALCULATION
As of ________ [date]:
Accounts Receivable
1. the aggregate amount of the entries which would, in accordance with
GAAP, be classified on a consolidated balance sheet as trade accounts
receivable of CHC, is $________________;
2. the amount included in item 1 above that has been outstanding for over
90 days is $________________;
3. the amount included in item 1 above that is subject to any Encumbrance
other than a Permitted Encumbrance which does not rank prior to or
pari passu with the Security or is subject to garnishment, execution,
attachment or similar process is $________________;
4. the amount included in item 1 above that is subject to any reasonable
claim for credit, set-off, allowance, adjustment, counterclaim or
partial discharge (but only to the extent of the adverse claim thereon
known to the officers of CHC signing the Reporting Certificate, after
reasonable inquiry) is $________________;
5. the amount included in item 1 above that is not owed to a Restricted
Party and payable in a "Primary Operating Jurisdiction" as defined in
Schedule M of the Credit Agreement is $________________;
6. the amount of item 1 above less the aggregate (without duplication) of
the amounts for items 2 through 5 above is $________________.
Inventory
7. the aggregate amount of the entries which would, in accordance with
GAAP, be classified on a consolidated balance sheet as inventory of
CHC valued at the lower of cost or fair market value, is
$________________;
8. the amount included in item 7 above that represents obsolete inventory
is $________________;
9. the amount included in item 7 above that represents inventory located
outside of a "Primary Operating Jurisdiction" as defined in Schedule M
of the Credit Agreement is $________________;
10. the amount of item 7 above less the aggregate (without duplication) of
the amounts for items 8 and 9 above is $________________.
-4-
Aircraft
11. based on the most recent appraisal of the fair market value of the
Aircraft, the aggregate appraised value of the Aircraft owned by
Restricted Parties (as opposed to Aircraft under lease from persons
other than Restricted Parties) that are located in and operated from a
Primary Operating Jurisdiction and have registered first-ranking
mortgages in place as part of the Security in the Primary Operating
Jurisdiction in which they are located (all as described on Appendix A
attached to the Reporting Certificate) is $________________.
Cash Pledged
12. the amount of cash of Restricted Parties deposited with a Lender and
subject to an express first-ranking pledge in favour of the Agent as
part of the Security (as detailed on the attachment) is $__________.
Calculation of Borrowing Base and Compliance
13. The aggregate of (item 6 X 0.75) + (item 10 X 0.50) + (item 11 X 0.75)
+ (item 12) is $________________
14. The amount of item 13 attributable to Property of Restricted Parties
incorporated in Norway and Denmark is $________________
15. The principal balance of the Intercompany Loan Obligations identified
as items 7 and 8 on Schedule I to the Credit Agreement (disregarding
any updated schedule since 5 July 2000) is $________________
16. The amount, if any, by which item 14 exceeds item 15 is $___________
17. The amount of item 13 attributable to Property of Xxxxxxxxx and its
Subsidiaries is $________________
18. The aggregate of the principal amount of all Advances outstanding
(being $______________) and the aggregate Market Value of all Swaps
that are Other Secured Obligations and that have a negative Market
Value from the Restricted Parties' perspective after offsetting the
Market Value of Swaps with the same Lender that are Other Secured
Obligations and that have a positive Market Value (being
$______________) is $________________
19. The principal amount of Advances outstanding under Tranche 1 and
Tranche 2 is $________________
20. The amount, if any, by which item 17 exceeds the aggregate of item 18
minus item 19 is $________________
21. The aggregate of item 13 minus item 16 minus item 20 is $____________,
which is the "Borrowing Base"
-5-
22. The ratio of item 21 to item 18 is ______ to 1 [Note: covenant is at
least 1.20 to 1]
SCHEDULE D
ASSIGNMENT AGREEMENT
[see reference in Sections 1.1.7, 13.2.4(b)]
The undersigned refer to the amended and restated credit agreement
dated as of 5 July 2000 between CHC Helicopter Corporation and others as
Restricted Parties, The Bank of Nova Scotia as Agent and the Lenders named
therein, as amended, supplemented, restated or replaced from time to time (the
"Credit Agreement"). All capitalized terms used in this 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(s) 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; 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 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
-2-
of the Credit Agreement are required to be performed by it as a Lender and (g)
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 13.2.1 of the Credit Agreement if applicable,
for approval and recording by the Agent. 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. The Assignee shall become a Lender, and
shall be bound by the obligations and entitled to the benefits in the Credit
Agreement, the Security and the other Credit Documents, immediately upon this
Assignment Agreement being approved and recorded by the Agent (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 relevant
Credits that has not been advanced by the Lenders. The Assignee shall pay
further amounts to the Assignor as LIBOR Periods end and make further Advances
to the Borrowers as Advances by way of Bankers' Acceptances made by the Assignor
mature, beginning on the first Drawdown Date that is at least three Business
Days following the Effective Date, until the Assignee has made or acquired from
the Assignor Advances in an amount equal to its Proportionate Share of the
aggregate Advances made by all Lenders under the relevant Credits.
5. If Advances made by the Assignee to the Borrowers or acquired by the
Assignee from the Assignor are for any reason less than the Assignee's
Proportionate Share of the aggregate Advances made by all Lenders under the
relevant Credits, 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 a Borrower pays interest on
LIBOR Advances, in respect of LIBOR Advances.
6. This Assignment Agreement shall be governed by, and construed in
accordance with the laws of the Province of Ontario, Canada.
-3-
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.
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:
--------------------
-4-
Receipt of notice of
assignment acknowledged
Approved on for all Restricted Parties
--------------------------
THE BANK OF NOVA SCOTIA CHC HELICOPTER CORPORATION
as Agent
By: By:
------------------------------ --------------------------
Name: Name:
Title: Title:
Effective Date: Date:
---------------------- -------------------------
APPENDIX 1
TO
ASSIGNMENT AGREEMENT
Proportionate Share(s) assigned by Assignor:
[Note: specify Credits affected] ----------------------------
Proportionate Share retained by Assignor:
[Note: specify all Credits in which Assignor
retains an interest] ----------------------------
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
[Note: Proportionate Shares are nil unless otherwise noted]
THE BANK OF NOVA SCOTIA
Credit A1 (adjusted in accordance with Section 8.2) - 24.00000%
Credit A2 (adjusted in accordance with Section 8.2) - 100%
Credit A (overall) - 37.5%
Credit C - 71.0027%
Credit D - 0.8517%
Credit E - 100%
SCOTIABANK EUROPE PLC
Credit B1 (adjusted in accordance with Section 8.2) - 37.3547%
Credit B (overall) - 26.35%
NATIONAL BANK OF CANADA
Credit A1 (adjusted in accordance with Section 8.2) - 15.15152%
Credit A (overall) - 12.5%
Credit C - 28.9973%
BANK OF TOKYO-MITSUBISHI (CANADA)
Credit A1 (adjusted in accordance with Section 8.2) - 60.60606%
Credit A (overall) - 50%
BANK OF SCOTLAND
Credit B1 (adjusted in accordance with Section 8.2) - 62.6453%
Credit B2 (adjusted in accordance with Section 8.2) - 100%
Credit B (overall) - 73.65%
Credit D - 59.056%
CHRISTIANIA BANK OG KREDITKASSE ASA
Credit D - 40.0923%
[Note: Schedule amended by Fourth Amending Agreement]
SCHEDULE F
DETAILS OF CAPITAL STOCK, PROPERTY ETC.
[see reference in Sections 9.1.5(a), 10.5, 10.6.2(d)(i)]
[See attached]
DETAILS OF CAPITAL STOCK, PROPERTY ETC.
CHC HELICOPTER CORPORATION
Corporate History
Incorporated (by amalgamation) under the laws of Canada on 10 February
1987 under the name 154604 Canada Limited.
Articles of Amalgamation between CHC Helicopter Corporation and Xxxxxx
Management Services Limited on 5 August 1987. Certificate of Amendment
dated 7 August 1987 amending share provisions. Certificate of
Amendment dated 27 September 1991 to increase authorized capital.
Certificate of Amendment dated 23 February 1994 to change share
attributes. Articles of Amalgamation - Schedule I undated December
1996 to change share attributes. Articles of Amendment dated 9
December 1997 to increase authorized capital.
Shareholders
Publicly traded, controlled by Xxxxx X. Xxxxxx
Nature of Business
Holding company for operating subsidiaries
Head Office and Chief Executive Office
St. John's, Newfoundland
Capital Stock Owned
Owns all shares of CHC Helicopter Holdings Limited and Viking
Helicopters Limited and some shares of Canadian Helicopters Limited
Location of Property
Not applicable; holding company
CHC HELICOPTER HOLDINGS LIMITED
Corporate History
Incorporated under the laws of Ontario on 29 January 1958 under the
name Norcon Builders Limited and continued under the laws of Canada
effective 29 August 1989 under the name XXX Xxxxxxxxxx Xxxxxxxx
Xxxxxxx.
-0-
Xxxxxxxxxxxx
XXX - 3,019 Class A Shares and 230 common shares (pledged to secure
1987 Debentures)
Nature of Business
Holding company.
Head Office and Chief Executive Office
St. John's, Newfoundland
Capital Stock Owned
Owns all of the common shares of Canadian Helicopters Limited
Location of Property
Not applicable; holding company
VIKING HELICOPTERS LIMITED
Corporate History
Incorporated on 6 January 1969 under the laws of Canada as Viking
Helicopters Limited. By amendment effective on 1 February 1984, it
adopted the French equivalent name Helicopteres Viking Limitee.
Shareholders
CHC - 6,600,000 common shares
Nature of Business
Holding company.
Head Office and Chief Executive Office
St. John's, Newfoundland
Capital Stock Owned
Owns Class A shares of Canadian Helicopters Limited
Location of Property
Not applicable; holding company
-3-
CANADIAN HELICOPTERS LIMITED
Corporate History
Articles of Amalgamation dated 1 May 1996 between Canadian Helicopters
Limited, Helicopter Welders of Canada Ltd, Viking Helicopters
(Maritimes) Ltd./Helicopteres Viking (Maritimes) Ltee and Summerside
Aerospace Centre Limited.
Shareholders
CHC Helicopter Corporation - 5544 Class A, Series 2
CHC Helicopter Holdings Limited - 130 common shares
Viking Helicopters - 100 Class A, series 1; 22039 Class A, Series 2
Nature of Business
Canadian operating company, also international operating company
except North Sea. Eastern Division: onshore operations, air ambulance
and flight training schools.
Western Division: operates helicopters throughout Western and Northern
Canada and flight training school.
International Division: supplies helicopters for work in oil industry
around the world; participates in joint venture arrangements in
Thailand (Thai Aviation Services - CHL has a 30% interest); Peru;
Azerbaijan (East West Helicopters Limited - CHL has a 25% interest);
Saudi Arabia (CHL receives 90% of proceeds); Myanmar (CHL uses an
agent to whom an annual fee is paid); and Brunei (CHL uses an agent to
whom a 10% annual fee is paid).
Head Office and Chief Executive Office
St. John's, Newfoundland
Capital Stock Owned
Owns 100% of shares of ATI, Helicopter Services Inc., Pacific
Aerospace Services Inc., Canadian Helicopters (International) Limited,
297303 British Columbia Limited, Pacific Northwest Helicopters Inc.
and Okanagan Helicopters Limited
Owns interests in Newfoundland Bonding & Composites Ltd. (100% of
common shares), American Helicopters Inc. (25%), Slemon Park
Corporation (40%) and Whapchiwem Helicopters Limited (35%)
Location of Property
Throughout Canada. Other Aircraft located outside Canada in accordance
with Schedule I.
-4-
ATLANTIC TURBINES INC.
Corporate History
Incorporated under the laws of Canada (CBCA) on 5 July 1990.
Shareholders
Canadian Helicopters Limited - 130 common shares and 2,970 Class A
shares @ $1000
Nature of Business
Intended leasing company for Canadian Helicopters Limited
Holds all shares of Canadian Helicopters (Barbados) Limited, Integra
Leasing AS and Canadian Helicopters (UK) Limited and owns 40% of the
shares of Canadian Helicopters Philippines International Inc.,
formerly Xxxxx Helicopters Philippines Inc., and 30% of the shares of
Thai Aviation Services.
Head Office and Chief Executive Office
St. John's, Newfoundland
Capital Stock Owned
Holds all shares of Canadian Helicopters (Barbados) Limited, Integra
Leasing AS and Canadian Helicopters (UK) Limited and owns 40% of the
shares of Canadian Helicopters Philippines International Inc.,
formerly Xxxxx Helicopters Philippines Inc., and 30% of the shares of
Thai Aviation Services.
Location of Property
Canada
INTEGRA LEASING AS
Corporate History
Incorporated under the laws of Norway on 30 November 1992
Limited company
Organization number 966 705 175
Shareholders
ATI - 50 shares, each with nominal value of NOK 1000
-5-
Nature of Business
Used for international leasing of certain Aircraft owned by CHL or CHB
Head Office and Chief Executive Office
x/x Xxxxxxxxx Xxxxxxx & Xxxx
Xxxx, Xxxxxx
Capital Stock Owned
None
Location of Property
Not applicable; no tangible property
CANADIAN HELICOPTERS (BARBADOS) LIMITED
Corporate History
Incorporated under the laws of Barbados on 14 June 1995.
Company # 10852.
Barbados International Business Company.
Shareholders
Atlantic Turbines Inc. - 23,317 Class A redeemable preference shares,
20,000,000 common shares.
Nature of Business
Owns three S61 helicopters which are leased to CHL Leasing (Barbados)
Limited. Lender in various transactions with other Restricted Parties
Head Office and Chief Executive Office
Bridgetown, Barbados
Capital Stock Owned
Owns all of CHL Leasing (Barbados) Limited
Location of Property
2 Aircraft in Nova Scotia, 1 Aircraft in Thailand
-0-
XXX LEASING (BARBADOS) LIMITED
Corporate History
Incorporated under the laws of Barbados on 14 June 1995.
Company # 10851.
Barbados Domestic Company.
Shareholders
Canadian Helicopters (Barbados) Limited - 1 common share.
Nature of Business
Sub-leases aircraft to Canadian Helicopters Limited's non-Canadian
related operations such as Integra Leasing A.S., Thai Aviation
Services and Brintel.
Head Office and Chief Executive Office
Bridgetown, Barbados
Capital Stock Owned
None
Location of Property
Not applicable; no tangible property
CANADIAN HELICOPTERS (U.K.) LIMITED (Company Number 147943)
Corporate History
Incorporated under the laws of Scotland 8 December 1993 under the name
Ablefun Enterprises Limited
Changed name to Canadian Helicopters (U.K.) Limited on 21 December
1993
Shareholders
Atlantic Turbines Inc. - 36,537,458 ordinary, 5,259,000 "A"
Preference, 1,052,000 "B" Preference shares
Nature of Business
Holding company.
-7-
Head Office and Chief Executive Office (Registered Office)
Xxxxxx Xxxx, Xxxx, Xxxxxxxx, XX00 0XX, Xxxxxxxx
Capital Stock Owned
Owns all of Brintel Holdings Limited and Flight Handling Limited
Location of Property
Not applicable; holding company
BRINTEL HOLDINGS LIMITED (Company Number 136650)
Corporate History
Incorporated under the laws of Scotland 14 February 1992 under the
name Dreamexist Limited.
Changed name to Brintel Holdings Limited on 26 March 1993.
Shareholders
Canadian Helicopters (U.K.) Limited - 1,500,000 ordinary 20p shares,
1,000,000 "A" participating shares of 20p, 6,750,000 7.5% cumulative
redeemable "A" preference and 3,250,000 7.5% cumulative redeemable "B"
preference shares
Nature of Business
Holding company
Head Office and Chief Executive Office (Registered Office)
Xxxxxx Xxxx, Xxxx, Xxxxxxxx, XX00 0XX, Xxxxxxxx
Capital Stock Owned
Owns all of Brintel Helicopters Limited
Location of Property
Not applicable; holding company
FLIGHT HANDLING LIMITED (Company Number 164266)
Corporate History
Incorporated under the laws of Scotland 19 March 1996 under name
Firstmarch Limited.
Changed name to Flight Handling Limited on 30 April 1996.
-8-
Shareholders
Canadian Helicopters (U.K.) Limited - 2 Ordinary (pound)1 shares -
100% Ordinary shares
Nature of Business
Inactive. Holds mortgages of Aircraft registered in Denmark to secure
its indemnity in favour of the Lenders.
Head Office and Chief Executive Office (Registered Office)
Xxxxxx Xxxx, Xxxx, Xxxxxxxx, XX00 0XX, Xxxxxxxx
Capital Stock Owned
None
Location of Property
Not applicable; no tangible property
BRINTEL HELICOPTERS LIMITED (Company Number 137022)
Corporate History
Incorporated under the laws of Scotland 9 March 1992 under the name
Comlaw No. 287 Limited
Changed name to British International Helicopters (North Sea) Limited
on 9 April 1992
Changed name to Brintel Helicopters Limited on 29 October 1992
Shareholders
Brintel Holdings Limited - 2 Ordinary (pound)1 of (pound)1.00 each
shares
Nature of Business
Formerly UK operating company engaged mainly in offshore contracts.
Now principally a holding company but does still carry out maintenance
work for Bond and third party contractors.
Head Office and Chief Executive Office (Registered Office)
Xxxxxx Xxxx, Xxxx, Xxxxxxxx, XX00 0XX, Xxxxxxxx
-9-
Capital Stock Owned
Owns 100% of Vinland Denmark A/S and Bond Helicopter Services Limited
and will own 100% of Bond Helicopters Limited, an inactive company
utilized to protect the name "Bond Helicopters Limited" upon the
change of name of Bond to Scotia Helicopter Services Limited on 6 July
2000 Owns interests in Viscom (Aberdeen) Limited (25%)
Location of Property
Scotland
VINLAND DENMARK A/S
Corporate History
Incorporated under the laws of Denmark on 8 July 1998 as a public
limited company (aktieselskab).
Company # A/S 249 015.
Shareholders
Brintel Helicopters Ltd. - share capital of DKK 208,949,342
Nature of Business
Holding company
Head Office and Chief Executive Office
c/o Danish Air Transport, Postbox 00, Xxxxxxx Xxxxxxxx, XX-0000
Xxxxxxx, Xxxxxxx
Capital Stock Owned
Owns all of Vinland Helicopters AS, Danish International Helicopters
Aps and Brintel ApS
Location of Property
Not applicable; holding company
-10-
DANISH INTERNATIONAL HELICOPTERS ApS
Corporate History
Incorporated under the laws of Denmark on 1 October 1988 as a private
limited company (anpartsselskab).
Formerly Komplementarselskabet Danish Air Transport ApS.
Company # A/S 249 015.
Shareholders
Vinland Denmark A/S - 1000 shares @ DKK 125,000
In connection with the purchase of shares by Vinland Denmark A/S from
the former shareholders of the corporation, the parties agreed that
the former shareholders have a right to repurchase the shares of the
corporation with four months' notice and that Vinland Denmark A/S has
a right to sell the shares to the former shareholders.
Nature of Business
Subcontractor to Bond Helicopters Limited in servicing contract with
Maersk Oil
Head Office and Chief Executive Office
Xxxx Xxxxxxxxxx 00, XX-0000 Xxxxxxx 0, Xxxxxxx
Capital Stock Owned
None
Location of Property
Denmark
BRINTEL ApS
Corporate History
Incorporated under the laws of Denmark on 1 September 1998 as a
private limited company (anpartesselskab).
Shareholders
Vinland Denmark A/S - 1000 shares @ DKK 125,000
-11-
Nature of Business
Upon obtaining the necessary Permits, will become subcontractor to
Bond Helicopters Limited in servicing contract with Maersk Oil
Head Office and Chief Executive Office
c/o Reumert & Partners, Xxxxxxxx 00, XX-0000 Xxxxxxxxxx X, Xxxxxxx
Capital Stock Owned
None
Location of Property
Not applicable; no tangible property currently owned
VINLAND HELICOPTERS AS
Corporate History
Incorporated under the laws of Norway on 5 March 1999.
Limited Company.
Organization # 980 593 126.
Shareholders
Vinland Denmark A/S - 22,350,000 (expected to increase to 23,150,000)
shares with par value of NOK 10 per share
Nature of Business
Acquisition and holding company for Helicopter Services Group AS
Head Office and Chief Executive Office
x/x Xxxxxxxxx Xxxxxxx & Xxxx
Xxxx, Xxxxxx
Capital Stock Owned
Owns 100% of shares of Helicopter Services Group AS
Location of Property
Not applicable; holding company
-12-
HELICOPTER SERVICES GROUP AS
Corporate History
Established under the laws of Norway on 20 February 1956 under the
name "Helikopter Service AS." The name was changed to Helicopter
Services Group ASA on 19 February 1996 and to Helicopter Services
Group AS in November 1999. Its organisation number is 912 582 914.
Shareholders
Vinland Helicopters AS - 100%.
The share capital consists of NOK 236,927,427.50 divided into
20,602,385 ordinary shares of NOK 11.50.
Nature of Business
Holding company.
Head Office and Chief Executive Office
Stavanger, Lufthavn
Sola
4050 Sola
Norway
Capital Stock Owned
Xxxxx Helicopter Services Limited (100%)
Court Helicopter Services (Proprietary) Ltd.
(formerly Court Air Holdings (Proprietary) Ltd. (100%)
Helikopter Services AS (100%)
HSG Reinsurance S.A. 499,997 of 500,000 shares
Heliwest AS (100%)
Court Helicopters Ltd. (100%)
Wiking Helikopter Service GmbH (49%)
Location of Property
Norway
-13-
Real Property Owned or Leased
Real Estate Owned
-----------------
Place Title & Land Address Description
1. 1103 Stavanger 15 83 Maskinveien 22
2. 1103 Stavanger 15 689 Maskinveien 3
Real Estate Leased
------------------
Place Title & Land Address Description
3. Office facilities at Lease from Oslo Xxxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 0, AS, term: 10 January 1995 - 1
Oslo, approximately 680 February 2000
square metres on the
9th floor
4. 1124 Sola 16 91 Lease from Civil Aviation
Authority (CAA). Term 25
years from 1988
5. 1124 Sola 14 276 Lease from CAA. Term: 15
years from 1997
6. 1124 Sola 14 282 Lease from CAA. Term: 20
years from 1997
7. 1201 Bergen 109 203 Flyplassveien 471 Lease from the Ministry of
Defense. Term: 25 years from
1978
8. 1201 Bergen 109 271 Flyplassveien 519 Leased from the Ministry of
Aviation. Term: 20 years
from 1991.
9. 1804 Bodo 138 4370 Olav V's gate 40 Leased from CAA. Term: 20
years from 1996. Subleased to
Lufttransport.
XXXXX HELICOPTER SERVICES LIMITED (Company Number 181461)
Corporate History
Incorporated under the laws of Scotland on 12 December 1997.
-14-
Shareholders
Helicopter Services Group AS owns 100% of:
Issued share capital: $40,000,000
Nominal share capital: $40,000,000 divided into 30,000,000 Ordinary
Shares of Aus. $1 each and 10,000,000
Redeemable Ordinary shares of Aus. $1 each.
Nature of Business
Acts as the UK holding company for HSG's Australian operations. It
does not otherwise trade.
Head Office and Chief Executive Office (Registered Office)
Aberdeen Xxxx Xxxxxxx
Xxxx
Xxxxxxxx
Xxxxxxxx
XX00 0XX
Capital Stock Owned
Owns 100% of shares of Management Aviation Limited.
Location of Property
Not applicable; holding company
MANAGEMENT AVIATION LIMITED (Company Number 872372)
Corporate History
Incorporated under the laws of England and Wales on 25 February 1966.
Its previous name was Bond Helicopters Limited, which changed on 1
October 1984.
Shareholders
Xxxxx Helicopter Services Limited owns 100% of:
Issued share capital: 25,651,354 pounds
Nominal share capital: 25,651,354 pounds divided into 25,651,354
Ordinary shares of 1 pound each.
-15-
Nature of Business
Holding company. Its purpose is also to protect the name "Management
Aviation Limited".
Head Office and Chief Executive Office (Registered Office)
North Denes Airfield
Caister Road
Caister On Sea
Great Xxxxxxxx XX00 0XX
Xxxxxxx
Capital Stock Owned
Owns 100% of shares of Xxxxx Helicopter Services Pty Ltd.
Location of Property
Not applicable; holding company
XXXXX HELICOPTER SERVICES PTY LTD.
Corporate History
Incorporated on 10 December 1992. The company was originally called
Marcuto Pty Ltd. and changed its name on 12 July 1996 to its current
name.
Shareholders
Management Aviation Ltd. owns 100% of 54,800,000 ordinary fully paid
shares.
Nature of Business
Holding company for the Xxxxx Helicopter group
Head Office and Chief Executive Office
00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital Stock Owned
Owns 100% of shares of Xxxxx Xxxx Xxxxxx Helicopters Pty Ltd. and
Xxxxx Helicopters Pty Ltd., and 66-2/3 % of the shares of Xxxxx
Off-Shore Helicopters Pty. Ltd.
-16-
Location of Property
Real Property Owned
-------------------
Property Description
1. 00 Xxxxxxxxx Xxxx, Xxxxxxxx, The head office of the Xxxxx group
South Australia
Real Estate Leased
-------------------
Property Description
2. Part of Adelaide Airport, South Australia: Lease assigned from Xxx Xxxxx
hangar, maintenance area, passenger Holdings Pty Ltd for 20 year term
terminal and associated offices commencing 1 June 1983.
XXXXX XXXX XXXXXX HELICOPTERS PTY LTD.
Corporate History
Incorporated on 15 December 1981. The company was originally called
Bass Strait Helicopters Pty Ltd and changed its name on 8 January 1982
to its current name. The Memorandum and Articles of Association were
replaced and a new set of standard Memorandum and Articles of
Association adopted on 25 February 1998.
Shareholders
Xxxxx Helicopter Services Pty Ltd. - 2 ordinary fully paid shares.
The share capital of the company is $100,000 divided into 100,000
shares of $1.00 each.
Nature of Business
Carried on operations before 1993. Now holding company.
Head Office and Chief Executive Office
00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital Stock Owned
Owns 100% of shares of Xxxxx Helicopters International Pty Ltd., 100%
of the units of Australian Helicopters Trust and 33-1/3 % of Xxxxx
Off-Shore Helicopters Pty Ltd..
-17-
Location of Property
Not applicable; holding company
XXXXX HELICOPTERS INTERNATIONAL PTY LTD.
Corporate History
Incorporated on 26 March 1990. The company was originally called
Xxxxxxx Pty Ltd. and changed its name on 13 July 1990 to its current
name. The Memorandum and Articles of Association of the Company were
replaced and a new Constitution was adopted on 21 April 1999.
Shareholders
Xxxxx Xxxx Xxxxxx Helicopters Pty Ltd. - 2 ordinary fully paid shares.
The share capital of the company is $1,000,000 divided into 1,000,000
shares of $1.00 each.
Nature of Business
This company is used for international contracts. It is also the Xxxxx
party to the off-shore joint venture arrangements.
Head Office and Chief Executive Office
00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital Stock Owned
None
Location of Property
The company owns four helicopters which, in January 2000, were located
in Thailand; Moorabin, Victoria, Australia; Queensland; and Adelaide.
AUSTRALIAN HELICOPTERS TRUST
Corporate History
The Trust was established by an indenture dated 6 April 1993 between
Xxxxx Xxxxxx Xxxxx and Xxxxx Helicopters International Pty. Ltd. as
trustee
Unitholders
Xxxxx Xxxx Strait Helicopters Pty Ltd. owns 100% of its units.
-18-
Nature of Business
Manages helicopter overhaul and safety equipment facilities of the
Xxxxx Helicopter group
Head Office and Chief Executive Office
00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital Stock Owned
None
Location of Property
Not applicable
XXXXX HELICOPTERS PTY LTD.
Corporate History
Incorporated on 22 February 1980.
Shareholders
Xxxxx Helicopter Services Pty Ltd - 1,000 A Class shares.
Nature of Business
Corporate / management support company for the Xxxxx Helicopter group.
Costs are passed on to operating companies. The company is registered
as the employer for the purposes of payment of group employment and
payroll taxes
Head Office and Chief Executive Office
00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital Stock Owned
None
Location of Property
Real Property Leased
--------------------
Property Description
1. Lease of premises in Adelaide for Main Lessor: Zaka Pty Ltd. 5 year term
store commencing 4 December 1998.
-19-
2. 00 Xxxxxx Xxxxxx Xxxxxxxx Lessor: Rovine Pty Ltd. Term
commenced on 1 January 2000 and
expiring on 31 December 2000.
3. Xxxx 0/0 Xxxxx xxxxxx Xxxxxxxx Gardens, Lessor: Jadero Pty Ltd. Term: 10
South Australia July 1998 for 1 year with two rights
of renewal of 1 year each.
4. Onslow Hangar: part of the area known as Lessor: Shire of Ashburton, 5 year
Onslow airport in Western Australia term commencing on 1 October
1990, with a 5 year option to renew.
5. Land at Karratha Airport: Xxx 00 Xxxxxx: Xxxxx xx Xxxxxxxxx of
helicopter landing ground, office facilities Roebourne. Term: 1 July 1983 to 30
and facilities for repair June 2004.
6. Property at Darwin International Airport, Licensor: Darwin International
Marrara, Northern Territory check-in Airport Pty Ltd. Term: 1 April 2000
counter and 2 briefing rooms - 31 March 2002 with a five year option
7. License agreement at Renmark Lessor: District Council of Renmark
AirfieldLot 7: refuelling shed and store Paringa of Ral Ral Avenue, Renmark,
South Australia. Term: commences 1
September 1998 - 1 September 1999,
can be renewed if requested by
licensee. Now occupied on a monthly licence.
8. Canberra Airport: temporary site license Licensor: Canberra International
Airport Pty Ltd. Term: 1 October
1998 until completion of 6 months
from the commencement date or the
completion of permanent facilities for occupation.
9. Hangar Facilities, Old Mackay Lessor: Gular Pty Ltd and
AirportCasey Avenue, Queensland Damilsheen Pty Ltd. Term: 19 August
Agreement to lease. 1996 to 18 August 1997. Now
occupied as a periodic tenancy.
As of January 2000, the company owns three helicopters which are located in
Adelaide, Xxxx Xxxxx xxx Xxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx.
-20-
XXXXX OFF-SHORE HELICOPTERS PTY LTD.
Corporate History
Incorporated on 27 October 1981.
Shareholders
Xxxxx Xxxx Xxxxxx Helicopters Pty Ltd - one ordinary fully paid share
Xxxxx Helicopter Services Ltd. - two ordinary fully paid shares.
The share capital of the company is $100,000 divided into 100,000
shares of $1.00 each.
Nature of Business
This company is the contract holder / operator for all of the group's
Australian contracts and operations. It owns the majority of the
group's helicopters.
Head Office and Chief Executive Office
00 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxxx, 0000
Capital Stock Owned
None
Location of Property
Real Property Leased
--------------------
Property Description
1. Xxxxxx Xxxxxx and Maintenance Lessor: Hampden Pty Ltd. 6 year
Facilities term commencing 1 November 1997.
As of January 2000, the company owns 19 helicopters which are located in
Thailand (1) and in Xxx Xxxxx Xxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxx
Xxxxxxxxx and Australian Capital Territory.
BOND HELICOPTER SERVICES LIMITED (Company Number 178188)
Corporate History
Incorporated under the laws of Scotland, 26 August 1997. Its previous
name was Comlaw No 447 Limited, which changed to its current name on 6
January 1998.
-21-
Shareholders
Brintel Helicopters Limited owns 100% of:
Issued share capital: 47,238,994 pounds, divided into 47,238,994
Ordinary Shares of 1 pound each
15,746,331 pounds, divided into 15,746,331
Redeemable Ordinary Shares of 1 pound each
Nominal share capital: 64,000,000 pounds divided into 48,000,000
Ordinary shares of 1 pound each and
16,000,000 Redeemable Ordinary shares of 1
pound each.
Nature of Business
Holding company.
Head Office and Chief Executive Office (Registered Office)
Xxxxxxxx Xxxxxxx Xxxx
Xxxx
Xxxxxxxx
Xxxxxxxx
XX00 0XX
Capital Stock Owned
Owns 100% of shares of Bond Helicopters Limited and 100% of shares of
Bond Rotary Wing Limited
Location of Property
Not applicable; holding company
BOND HELICOPTERS LIMITED (Company Number 936569)
(to be changed to Scotia Helicopter Services Limited on 6 July 2000)
Corporate History
Incorporated under the laws of England and Wales on 2 August 1968. Its
previous names were: Jorob Limited, which changed on 22 August 1968;
and Management Aviation Limited, which changed on 1 October 1984.
-22-
Shareholders
Bond Helicopter Services Limited owns 4,929,780 Ordinary Shares of 1
pound.
Issued share capital: 4,929,780 Ordinary Shares of 1 pound each
Nominal share capital: 5,500,000 Ordinary Shares of 1 pound each
Nature of Business
The principal UK trading subsidiary carrying on the business of
providing offshore helicopter services in the UK.
Its principal operations include helicopter transportation service to
customers in the oil and gas production industry (operating primarily
in the UK continental shelf area).
Head Office and Chief Executive Office (Registered Office)
North Denes Airfield
Caister Road
Caister On Sea
Great Yarmouth NR30 5TF
Capital Stock Owned
Xxxxx Helicopters Ltd. (which is in liquidation) - 100%
Bond Helicopters (Ireland) Ltd. - 100%
North Denes Aerodrome Ltd. - 100%
Viscom (Aberdeen) Limited - 25%
Quillion Group Limited - 11%
Location of Property
Real Property Owned:
-------------------
Property Description
1. Workshop premises, Howemoss Drive Proprietor of 0.3483 hectares of land on
Kirkhill Industrial Estate, Aberdeen which office and workshop facilities are constructed.
2. 0 Xxxxxxx Xxx, Xxxxxxxx, Xxxxxxxx Formerly owned by Brintel Helicopters
Limited. Private residence leased
to private individual
3. Sumburgh Social Club, Shetland Formerly owned by Brintel Helicopters
Limited. Leased to charitable entity.
-23-
Real Property Leased
--------------------
Property Description
1. Xxxxxx 0 Xxxxxxxx Xxxxxxx Xxxx. Ground lease by The British Airports
Authority in favour of Peregrine Air
Services Limited. Term: 16 March
1981 - 15 March 2021.
2. Hanger 2 Aberdeen Airport East Short term sub-lease entered into
between Xxxxxxx and the company.
Term: 1 January 1998 - 31 December
2000 and thereafter on a year to year
basis subject to termination provisions in sub-lease.
3. Hanger 3 at Aberdeen Airport East Ground lease granted by the British
Airports Authority in favour of
Fairflight Charters Limited. Term: 1
November 1977 - 31 October 2017.
4. East Apron, Aberdeen Airport East Ground lease from Aberdeen Airport.
Term: 1 April 1993 until terminated by
six months written notice served by
either party, which notice is not to take
effect prior to 31 March 2013.
5. Airport Terminal, Aberdeen Airport East Ground lease from Aberdeen Airport.
Term: fifteen years from 1 July 1991
until terminated on giving 12 months
written notice on either party, which is
not to take effect before 30 June 2006.
6. Freight Shed, Aberdeen Airport East Informal occupation, on the strength of
(Cargo Building 9/B4) Correspondence between the company
and Aberdeen Airport Limited. It is to be
occupied until 27 June 2002, and to continue
thereafter until either party gives 3 months notice.
7. Longside Airfield, Peterhead Ground lease from Banff & Xxxxxxxx
District District Council to North
Scottish Helicopters Limited. Term: 15
October 1979 - 14 October 2078.
-24-
8. Sumburgh Airport Ground Lease between Islands Airports
Limited and the company. Term: 25
February 1980 - 24 February 2001.
9. Humberside Airport (England) The company leases a terminal and a hangar
facility (Plot 5C) under leases
which are set to expire in 2001. In addition,
it leases a lock-up garage known as Xxxx 0,
Xxxx Xxxx, by way of sub-lease which is
set to expire in 2003.
10. Liverpool Airport Previously leased an area of ground
upon which the Company constructed a terminal
and hangar facility. Since the Company no
longer operates from Liverpool Airport, an
agreement was reached where the existing
lease was surrendered in return for the grant
of a five year ground lease. The Company
subsequently leased back the terminal and
hangar facilities to Liverpool Airport Plc.
At the end of the five year period, (which
commenced 1 January 1999), the terminal and
hangar facilities will revert to Liverpool
Airport Plc.
11. Blackpool Airport Lease is in the name of Hydrocarbon
Resources Limited, an affiliate of British
Gas. Efforts are being made to have the lease
assigned. There is a hangar and terminal
there being occupied now by Bond but no
actual paperwork in place.
12. Xxxxxx Road, Aberdeen Airport Ground lease of subjects. Formerly held
by Brintel Helicopters Limited.
The company owns aircraft currently located in the UK, Norway, Denmark and
Ireland
NORTH DENES AERODOME LTD. (Company Number 555902)
Corporate History
Incorporated under the laws of England and Wales on 13 October 1955.
Its previous name was Anglian Air Charter Limited which changed on 7
January 1971.
-25-
Shareholders
Bond Helicopters Limited owns 100% of:
Issued share capital: 798 Ordinary Shares of 1 pound each
Nominal share capital: 1,000 pounds divided into 1,000 Ordinary Shares of
1 pound each.
Nature of Business
The Company owns and operates the airfield at North Denes, Great
Yarmouth. It also owns a number of aircraft that are operated by Bond
Helicopters Limited.
Head Office and Chief Executive Office (Registered Office)
North Denes Airfield
Caister Road
Caister On Sea
Great Yarmouth NR30 5TF
Capital Stock Owned
None
Location of Property
Real Property Owned
-------------------
Property Description
1. North Denes Airfield (England) Held on a freehold basis. Part of the Airfield
is leased to Xxxxxxx Helicopters Limited on a
lease for 25 years commencing 1 November
1989, terminable by either party on giving 2
years notice with effect from 31 October
1997.
Real Property Leased
--------------------
Property Description
1. Shed on the edge of North Denes Airfield Leased from Norfolk Greyhound Racing
Company Limited for a period of 9 years from
30 November 1994 until 29 November 2003.
The company owns aircraft currently located in the UK and Xxxxxxx
-00-
XXXX XXXXXXXXXXX (XXXXXXX) LIMITED (Registration Number 218246)
Corporate History
Incorporated under the laws of Ireland on 7 June 1994.
Shareholders
Bond Helicopters Limited owns 100% of:
Issued share capital: 80,0002 Ordinary Shares of 1 Irish pound each
Nominal share capital: 1,000,000 Ordinary Shares of 1 Irish pound each.
Nature of Business
The principal activity of the Company is aviation operations. Its
principal operations are based on contracts for helicopter support
from Cork Airport to Marathon's Kinsale Head gas field and search and
rescue cover for the Irish Department of the Marine from Xxxxxxx
Airport and Dublin Airport.
Head Office and Chief Executive Office (Registered Office)
Cork Airport
Cork
Ireland
Capital Stock Owned
None
Location of Property
Real Property Leased
--------------------
Property Description
1. Cork Airport, Kinsale Road, Cork, Offices rented at Leheraghmore. Hangar,
Ireland offices and land rented at Barrygarvan from
South AER Services Ltd.
2. Dublin Airport, Rickardstown, Swords, Xxxxxxxxx Xxxxx, Xxxxxxxxx. Xxxxxxxxxxx
Xxxxxx Xxxxxx, Xxxxxxx rented from Aer Rianta. Hangar space
rented from FLS Aerospace.
3. Xxxxxxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Hangar, offices and parking rented from
Aer Rianta.
-27-
COURT HELICOPTER SERVICES (PROPRIETARY) LTD., formerly Court Air Holdings
(Proprietary) Ltd.
Corporate History
Incorporated under the laws of South Africa on 17 August 1965 under
the name Court Air Holdings (Proprietary) Limited. Its registration
number is 65/7024/07.
Shareholders
Helicopter Services Group AS owns 100% of 1,000 shares of R1,00 each.
Nature of Business
Holding company
Head Office and Chief Executive Office
Cape Town International Airport, Cape Town, South Africa
Capital Stock Owned
Owns 100% of Court Air (Proprietary) Ltd.
Location of Property
Not applicable; holding company
COURT AIR (PROPRIETARY) LTD.
Corporate History
Incorporated under the laws of South Africa under the name Court Air
(Proprietary) Limited on July 20 1970. Its registration number is,
70/9448/07.
Shareholders
Court Helicopter Services (Proprietary) Ltd. owns 100 000 shares of
R1,00 each.
Nature of Business
Holding company.
Head Office and Chief Executive Xxxxxx
Xxxx Xxxx Xxxxxxxxxxxxx Xxxxxxx, Xxxx Xxxx, Xxxxx Xxxxxx
-28-
Capital Stock Owned
Court Helicopters (Proprietary) Ltd. (100%)
Court Flight Safety (Proprietary) Ltd. (100%)
Court Republic Helicopters (Proprietary) Ltd. (to be dissolved) (100%)
Cape Aero Services (Proprietary) Ltd. (to be dissolved) (100%)
Rotorwing (Proprietary) Ltd. (to be dissolved) (100%)
Helicopter Services (Proprietary) Ltd. (48%)
Location of Property
Not applicable; holding company
COURT HELICOPTERS (PROPRIETARY) LTD.
Corporate History
Incorporated under the laws of South Africa under the name Court
Helicopters (Proprietary) Limited on 13 June 1960. Its registration
number is 60/02212/07
Shareholders
Court Air (Proprietary) Ltd. owns 100% of 135 issued shares of R2.00
each.
Nature of Business
The Company is the Group's main operating company providing helicopter
support service. Its core business focus is that of helicopter service
to offshore oil, gas and diamond mining operations.
Head Office and Chief Executive Office
Cape Town International Airport, Cape Town, South Africa
Capital Stock Owned
Owns 60% of shares of Court Aircraft Sales (Proprietary) Ltd.
Location of Property
Real Property Leased
--------------------
Property Description (lease expires)
1. CTI Airport 30 April 2000
2. Cape Town Docks 31 January 2002
-29-
3. Durban 15 August 2007
4. Xxxxxx (Soeker) 31 December 1999
5. V & A Waterfront Month to month
6. Johannesburg Month to month
The company owns and leases aircraft which operate in South Africa, Namibia,
Nigeria and Brazil.
COURT FLIGHT SAFETY (PROPRIETARY) LIMITED
Corporate History
Incorporated under the laws of South Africa on 21 March 1972. Its
registration number is 720313307.
Shareholders
Court Air (Proprietary) Ltd. owns 100%
Nature of Business
Provides safety consulting services
Head Office and Chief Executive Office
Cape Town International Airport, Cape Town, South Africa
Capital Stock Owned
None
Location of Property
Cape Town, South Africa
COURT HELICOPTERS LIMITED
Corporate History
Incorporated under the laws of the British Virgin Islands on 14
September 1988, continued under the laws of the Republic of Mauritius
on 6 May 1998.
-30-
Shareholders
Authorized share capital is 50,000 ordinary shares of US $1.00 each.
Issued share capital is one ordinary share held by Helicopter Services
Group AS
Nature of Business
Leasing and subleasing of aircraft
Head Office and Chief Executive Office (Registered Office)
Les Jamalacs, Vieux Conseil Street, Port Louis, Mauritius
Capital Stock Owned
None
Location of Property
None
HELIKOPTER SERVICE AS
Corporate History
Established under the laws of Norway on 21 April 1995 under the name
Helikopter Service AS. Its organization number is 974 414 228.
Shareholders
Helicopter Services Group AS owns100% of NOK 410,000,000 divided into
4,100 ordinary shares each with a nominal value of NOK 100,000.
Nature of Business
The company's main objects include rental of transport activities with
helicopters and planes, transport generally, trade, financing and
insurance, industry, management of real estate and matters connected
with the above, together with participation as shareholder or
otherwise in other business.
HS provides flight, maintenance, training and leasing services to the
Norwegian offshore oil and gas industry.
Head Office and Chief Executive Office
Sola, Norway
-31-
Capital Stock Owned
Scancopter AS (100%)
Helimatic AS (inactive) (100%)
Location of Property
Real Property Leased
--------------------
Place Title & Land Address Description
1. 1503 Kristiansund 33 74 Flyplassveien 8 Leased from the State.
Term: 20 years from 1992.
2. 1201 Bergen 109 263 Flyplassveien 515 Leased from the Dept. of
Defence Term: 20 years
from 1989.
3. 1401 Xxxxx 00 000 Xxxxxxxxxxx 00 Leased from Xxxxx
Municipality.
Term: 30 years from 1996.
4. 1103 Stavanger 15 693 Maskinveien 23 Sold to and leased back (to
1.6.2001) from Stavanger
Investering AS.
SCANCOPTER AS
Corporate History
Established under the laws of Norway on 4 April 1994. Its organization
number is 970 923 829.
Shareholders
Helikopter Service AS owns 1000 shares of NOK 1000 each. Share capital
NOK 1,000,000.
Nature of Business
The objects of the Company are to carry on a trade and agency business
within aviation and other related industries, together with related
businesses, including participating in other enterprises with
equivalent activities.
The main operations of Scancopter are trade and agency activities
within aircraft and other related industries.
-32-
Head Office and Chief Executive Office
Baerum, Norway.
Capital Stock Owned
None
Location of Property
Real Property Leased
--------------------
The trading company leases premises at Fornebu (former Oslo airport). The Lessor
is Norr0nafly AS and the lease contract is dated 5 December 1998. It is three
years in duration and contains a "non-committing" option clause (depending on
agreement at the time).
HELIWEST AS
Corporate History
Established under the laws of Norway on 31 January 1970 under the name
Heliwest AS. Its organization number is 819 569 762. Its Articles of
Association were adopted at the extraordinary general meeting on 31
January 1970 with subsequent amendments at the latest at the ordinary
general meeting on 30 April 1997.
Shareholders
Helicopter Services Group AS owns 100% of NOK 1,500,000 divided into
1,500 ordinary shares of NOK 1,000 each.
Nature of Business
Owns or has other interests in aircraft that are operated by related
companies.
Head Office and Chief Executive Office
Sola, Norway.
Capital Stock Owned
HSG Reinsurance SA - 3 of 500,000 shares
-33-
Location of Property
Real Property Leased
--------------------
Place Title & Land Address Description
----------------------------------------------------------------------------------------
1235 Xxxx 00 0/0 Xxxxxxxxxxxxx 000 Sublease from Xxxx kommune.
Titleholder: Ministry of Defence.
Term: 30 years from 1973.
General business use (warehouse/
garage).
[Note: the following was added by the Tenth Amending Agreement to reflect the
matters described in Section 9.1.5(a) in respect of CHC Capital (Barbados)
Limited, CHC Sweden AB and CHC Netherlands BV.]
CHC CAPITAL (BARBADOS) LIMITED
Corporate History
Incorporated under the laws of Barbados on 24 October 2003. Formerly
CHC Asset Management Limited name change on 23 January 2004.
Company #.22938
Barbados International Business Company.
Shareholders
CHC Helicopters (Barbados) Limited - 11,729,201 common shares
(includes shares being issued in connection with funding of Xxxxxxxxx
Acquisition and represents 100%)
Nature of Business
Financing company.
Head Office and Chief Executive Office
Barbados, W.I.
Capital Stock Owned
None
Location of Property
Not applicable.
-34-
CHC SWEDEN AB
Corporate History
Incorporated under the laws of Sweden on 31 August 2002. Name changed
February 2004 (formerly Stiftaren 7747 AB). Company # 556634-3660.
Shareholders
CHC Helicopters International Inc. (100%). Authorized SEK 400,000
value per share SEK 100. Issued SEK 300,000 (includes shares being
issued in connection with funding of Xxxxxxxxx Acquisition).
Nature of Business
Holding company for operating subsidiaries
Head Office and Chief Executive Office
Stockholm, Sweden
Capital Stock Owned
100% of CHC Netherlands BV
Location of Property
Not applicable
CHC NETHERLANDS B.V.
Corporate History
Incorporated under the laws of The Netherlands on 13 January 2004.
Company # 1264281
Shareholders
CHC Sweden AB. (100%). Issued and paid up capital of EUR 18,100
divided into 181 shares of EUR 100 each.
Nature of Business
Holding company.
-35-
Head Office and Chief Executive Office
Sweden (head office), The Netherlands (chief executive office)
Capital Stock Owned
Will acquire 100% of Xxxxxxxxx
Location of Property
Not applicable
SCHEDULE G
OTHER SECURED OBLIGATIONS
[see reference in Section 6.2]
1. Debts, liabilities and obligations of CHL and/or CHC under or in
connection with mirror netting arrangements established by BNS pursuant to a
mirror netting agreement dated 25 March 1999, as amended, supplemented, restated
and replaced from time to time.
2. Reimbursement obligations of CHL in connection with a SAR 2,000,000
letter of credit issued by BNS in favour of Gulf Bank KSC, Kuwait in connection
with a contract to transport employees of the Arabian Oil Company Limited, as
amended, supplemented, restated and replaced from time to time.
By signing this Agreement, CHC agrees to unconditionally guarantee payment and
performance by CHL of all of its present and future debts, liabilities and
obligations described above.
SCHEDULE H
LITIGATION
[see reference in Section 9.1.3(a)]
There is no litigation within the description in Section 9.1.3(a).
SCHEDULE I
LOCATIONS OF AIRCRAFT
[see reference in Sections 10.6.3(c)]
[Note: list attached to credit agreement is now outdated and is therefore not
attached. Updated lists are circulated with CHC's quarterly reporting
certificates]
SCHEDULE J
INTELLECTUAL PROPERTY
[see reference in Section 9.1.5(e)]
Registered trademark for hummingbird symbol
Registered trademark for Helikopter Service AS logo, registered with Norwegian
registration no. 115907
SCHEDULE K
LIMITATIONS ON CERTAIN RESTRICTED PARTIES AND OTHERS
[see reference in Section 10.8]
1. Neither CHC Helicopter Holdings Limited nor Viking Helicopters Limited
shall have any material Property other than Capital Stock of CHL and
neither shall carry on any business other than owning that Capital
Stock.
2. None of Pacific Aerospace Services Inc., Pacific Northwest Helicopters
Inc., Okanagan Helicopters Limited, Helimatic AS, Xxxxx Helicopters
Ltd., Bond Rotary Wing Limited, Bond Helicopters BV, Court Republic
Helicopters (Proprietary) Ltd., Cape Aero Services (Pty.) Ltd.,
Rotorwing (Pty.) Ltd. and Marine Aviation Services (Africa) Ltd. shall
carry on any business or own any Property, and each shall be
dissolved, wound up or sold to a third party on terms approved by the
Lenders as soon as possible and in any event not later than 30 April
2001.
3. None of Canadian Helicopters (International) Limited, 297303 British
Columbia Limited and Helicopter Services Inc. shall have any material
Property (except for an existing account receivable from a related
party in the case of 297303 British Columbia Limited) or carry on any
business unless it becomes a Restricted Party and complies with all of
the requirements in Section 6.1.1 relating to newly owned, established
or acquired wholly owned Subsidiaries. Bond Helicopters Limited, a
corporation to be established to preserve that name following the
change of name of Bond to Scotia Helicopter Services Limited on 6 July
2000 shall not have any material Property or carry on any business
unless it becomes a Restricted Party and complies with all of the
requirements in Section 6.1.1 relating to newly owned, established or
acquired wholly owned Subsidiaries.
4. Flight Handling Limited shall have no material Property other than one
or more mortgages of helicopters in Denmark that it holds to secure
its indemnity in favour of the Agent, and shall not carry on any
business other than holding those mortgages.
5. Vinland Denmark A/S shall have no material Property other than Capital
Stock of Danish International Helicopters ApS, Vinland Helicopters AS
and Brintel ApS and shall not carry on any business other than owning
that Capital Stock.
6. Vinland Helicopters AS shall have no material Property other than
Capital Stock of Helicopter Services Group AS and shall not carry on
any business other than owning that Capital Stock.
7. Danish International Helicopters ApS shall not carry on any business
other than acting as the licensed operating company for Brintel in
Denmark and as a subcontractor to or agent for Brintel in the
performance of a contract with Maersk Oil until Brintel ApS is able to
acquire a Danish helicopter operating Permit in order to facilitate
the performance by Brintel of the contract with Maersk Oil by
-2-
becoming the subcontractor or agent of Brintel. Danish International
Helicopters ApS shall have no material Property other than helicopters
leased from other Restricted Parties.
8. Brintel ApS shall not carry on any business other than acting as a
subcontractor to or agent for Brintel in the performance of a contract
with Maersk Oil and shall have no material Property other than
helicopters leased from other Restricted Parties.
9. Integra Leasing AS and Heliwest AS shall not carry on any business
other than as lessees under leases of helicopters from which in turn
are sub-leased in compliance with Schedule M, and shall have no
material Property other than rights in connection with those leases.
10. Court Air Holdings (Proprietary) Ltd. shall have no material Property
other than Capital Stock of Court Air (Proprietary) Ltd. and shall not
carry on any business other than owning that Capital Stock.
11. Court Air (Proprietary) Ltd. shall have no material Property other
than Capital Stock of Court Helicopters (Proprietary) Ltd., Helicopter
Services (Pty) Ltd. and, until they are dissolved, Court Republic
Helicopters (Proprietary) Ltd. and Rotorwing (Pty) Ltd., and shall not
carry on any business other than owning that Capital Stock.
12. HSG Reinsurance S.A. shall have no material Property other than loans
owing by HSG in the amounts of NOK 15,750,000, NOK 6,000,000 and US
$1,000,000 and shall not carry on any business other than owing those
loans.
13. HSG and Scancopter AS shall not acquire material Property in excess of
that owned on 11 August 1999 without the prior consent of the Majority
Lenders.
14. None of Aero Contractor Services Philippines Inc., Aerocoop B.V.,
Airmars Trading Company Ltd., Helicopter Administration Services Ltd.,
Heliswift Services Ltd., Lesotho Air Transport Services (Proprietary)
Ltd., Xxxxxxxxx Aircraft Trading Company B.V., Xxxxxxxxx Airtax
Argentina SA, Xxxxxxxxx Airways (Cyprus) Ltd., Xxxxxxxxx Northsea
Helicopters UK Ltd., Servicio Aero Litoral Ltda, Nigeravia SA,
Aviation Trading and Constructing AG, Xxxxxxxxx Airways Panama SA,
Xxxxxxxxx Airways Panama Operating SA, Xxxxxxxxx Airways Belgium N.V.,
Eurodealers E.E.S.V. and Jayrow Helicopers (Offshore) Pty Ltd. shall
carry on any business or own any Property, and each shall be
dissolved, wound up or sold to a third party on terms approved by the
Majority Lenders as soon as possible and in any event not later than
30 April 2005. [Note: Section added by Tenth Amending Agreement to
reflect matters described in Section 10.8, taking into account
completion of the Xxxxxxxxx Acquisition]
15. CHC Capital (Barbados) Limited shall have no material Property other
than Intercompany Loan Obligations totalling (euro)71,000,000 owing by
CHC Netherlands B.V. and shall not carry on any business other than
holding those Intercompany
-3-
Loan Obligations. [Note: Section added by Tenth Amending Agreement to
reflect matters described in Section 10.8, taking into account
completion of the Xxxxxxxxx Acquisition]
16. After completion of the Xxxxxxxxx Acquisition, CHC Sweden AB shall
have no material Property other than Capital Stock in CHC Netherlands
B.V. and shall not carry on any business other than holding that
Capital Stock. [Note: Section added by Tenth Amending Agreement to
reflect matters described in Section 10.8, taking into account
completion of the Xxxxxxxxx Xxxxxxxxxxx]
00. XXX Xxxxxxxxxxx B.V. shall have no material Property other than
Capital Stock in Xxxxxxxxx and Intercompany Loan Obligations totalling
up to (euro)34,000,000 owing by Xxxxxxxxx and/or its Subsidiaries and
shall not carry on any business other than holding that Property.
[Note: Section added by Tenth Amending Agreement to reflect matters
described in Section 10.8, taking into account completion of the
Xxxxxxxxx Acquisition]
18. Unless it becomes a Restricted Party and delivers the Security
required by this Agreement, Heliworld Leasing Ltd. shall have no
material Property and shall not carry on any business. [Note: Section
added by Eleventh Amending Agreement]
Until they become Restricted Parties and deliver the Security required by this
Agreement, CHC shall ensure that Xxxxxxxxx Luchtvaart Groep B.V., APAC Personnel
Assurance Company Ltd., Aviation Personnel Recruitment and Management Ltd.,
Capital Aviation Services B.V., Handelsmaatschappij Xxxxxxxxx & Co B.V., Inter
Aviation Services Ltd., Luchtvaartmaatschappij Xxxxxxxxx Airways B.V.,
Planinvest Ltd., Xxxxxxxxx Air Target Services B.V., Xxxxxxxxx Aircraft
Maintenance B.V., Xxxxxxxxx Airways Cameroun SA, Xxxxxxxxx Tchad SA, Xxxxxxxxx
Northsea Helicopters B.V., Xxxxxxxxx Northsea Helicopters C.V., Xxxxxxxxx Canada
Ltd., Inter Aviation Support (IAS) Limited, APAC Limited and Xxxxxxxxx Onroerend
Goed B.V. comply with the covenants in Sections 10.3 (except 10.3.1(a),
10.3.3(b) and 10.3.5(a) and (g)) and 10.6 (except 10.6.2(d)) as if they were
Restricted Parties, shall ensure that there is no change in the ownership of any
of those persons from that existing immediately after completion of the
Xxxxxxxxx Acquisition and that those persons do not acquire or hold Capital
Stock in any person except that held at the time of completion of the Xxxxxxxxx
Acquisition. [Note: Section added by Tenth Amending Agreement to reflect matters
described in Section 10.8, taking into account completion of the Xxxxxxxxx
Acquisition]
SCHEDULE L
INTERCOMPANY LOAN OBLIGATIONS
[see reference in Section 1.1.70]
Lender Borrower Guarantor(s) and Comments Xxxxxx
0. XXX XXX $160,879,988
2. CHC ATI to be reduced to $109,749,483 upon $147,985,917
repayment of items 28 to 38 below
3. CHC ATI to be repaid in full upon repayment (pound)8,928,571.40
of items 28 to 38 below
4. CHC Brintel (pound)1,144,144
5. CHB Vinland Vinland Denmark A/S, Danish NOK 526,558,686
International Helicopters ApS,
Brintel ApS
6. CHC ATI $180,052,290
7. CHB HSG Vinland Denmark A/S, Vinland, HSAS, (pound)36,497,577
Lufttransport, Heliflyg, Heliwest,
Scancopter
8. CHB HSAS Vinland Denmark A/S, Vinland, HSG, NOK 446,092,590
Lufttransport, Heliflyg, Heliwest,
Scancopter
9. HSG Scancopter NOK 800,000
10. HSG Xxxxx AUD 7,505,029
Helicopters
Pty Ltd.
11. Heliwest HSG HSAS, Lufttransport, Heliflyg, NOK 110,786,000
Xxxxxxxxxx
00. XXX XXX Take-back notes on transfer of CHUKL $10,516,168
Helicopters shares $2,098,603
Holdings $2,000
13. CHC CHL Take-back notes on transfer of CHUKL $10,516,168
Helicopters shares $2,098,603
Holdings $2,000
14. CHL ATI Take-back notes on transfer of CHUKL $10,516,168
shares $2,098,603
$2,000
15. CHUKL Brintel Holdings Non-interest bearing (pound)36,536,458
16. Brintel Brintel Non-interest bearing (pound)36,536,458
Holdings
-2-
Lender Borrower Guarantor(s) and Comments Amount
17. HSG Brintel Holdings Take-back note on sale of Bond (pound)45,000,000
(scheduled principal
payments/interest bearing)
18. Brintel Holdings Brintel Take-back note on sale of Bond (pound)45,000,000
(scheduled principal
payments/interest bearing)
19. HSG Vinland (pound)9,638,409
20. HSAS HSG Sale of 4 aircraft by HSAS to Bond NOK 245,922,637
21. HSG Vinland Sale of 4 aircraft by HSAS to Bond NOK 245,922,637
22. HSAS HSG Proceeds on sale of Heliflyg US $4,036,760
23. HSG Vinland Proceeds on sale of Heliflyg US $4,036,760
24. HSAS HSG Proceeds on sale of Lufttransport NOK 70,000,000
25. HSg Vinland Proceeds on sale of Lufttransport NOK 70,000,000
26. HSAS HSG Proceeds on sale of Llama aircraft NOK 2,682,270
by Lufttransport
27. HSG Vinland Proceeds on sale of Llama aircraft NOK 2,682,270
by Lufttransport
28. CHB CHC Temporary loan pending reduction of (pound)2,260,495
capital held by ATI in CHB; to be
repaid in July 2000
29. CHB CHC as above US $5,926,167
30. CHB CHC as above US $1,301,768
31. CHB CHC as above US $679,000
32. CHB CHC as above US $650,000
33. CHB CHC as above US $14,165,000
34. CHB CHC as above US $890,000
35. CHB CHC as above US $1,740,000
36. CHB CHC as above US $2,290,000
37. CHB CHC as above US $28,119,000
38. CHB CHC as above US $680,000
39. CHC CHC [Note: added by Tenth Amending (euro)37,317,627.00
Capital Netherlands Agreement]
(Barbados) BV
Limited
-3-
Lender Borrower Guarantor(s) and Comments Xxxxxx
00. XXX XXX Xxxxxxxxxxx BV [Note: added by Tenth Amending (euro)33,682,373.00
Capital Agreement]
(Barbados)
Limited
SCHEDULE M
SPECIAL REQUIREMENTS REGARDING AIRCRAFT
[see reference in Section 10.3.5(c)]
To the extent it has any interest in Aircraft, each Restricted Party shall
comply with the following requirements:
1. General Limitation on Location of Aircraft
Except as permitted in clause M2 below, (a) it shall not operate any Aircraft
outside the jurisdiction listed with respect to that Aircraft on Schedule I as
of the date of this Agreement without first obtaining the express written
consent of the Agent and (b) if an Aircraft is moved to a different
jurisdiction, it shall without delay cause any document or agreement necessary
in connection with the Security required under this Agreement to be executed,
recorded, filed, re-executed, re-recorded and/or re-filed pursuant to any
Requirement of Law in the new jurisdiction as and to the extent necessary in
order to, and shall take such other actions as may from time to time be
reasonably requested by the Agent or be necessary or advisable to, establish,
perfect, protect and maintain the Security over the Aircraft and all related
Parts and technical documents free and clear of all Encumbrances other than
Permitted Encumbrances and establish rights and remedies created or intended to
be created under the Security and carry out more effectively the intent of the
Security.
Notwithstanding anything contained in this Agreement, unless the Majority
Lenders and CHC otherwise agree, CHC shall ensure that at all times (i) Aircraft
representing not less than 60% [Note: Amended by Seventh and Ninth Amending
Agreements] of the aggregate value of all Aircraft owned by Restricted Parties
(as opposed to Aircraft under lease from persons other than Restricted Parties)
in the total fleet of the Restricted Parties (based on the then most recent
appraisal of the fair market value of the Aircraft) are located in and operated
from one or more (but not necessarily all) of Canada, the United Kingdom,
Norway, Denmark (excluding Greenland), Australia, the United States of America,
South Africa, the Netherlands or Ireland (each, a "Primary Operating
Jurisdiction") [Note: Amended by Tenth and Eleventh Amending Agreements to
include the Netherlands and Ireland] and have registered first-ranking mortgages
in place as part of the Security in the Primary Operating Jurisdiction in which
they are located and (ii) up to but not more than 10% of the aggregate value of
all Aircraft owned by Restricted Parties in the total fleet of the Restricted
Parties are located in or operated from any single jurisdiction other than a
Primary Operating Jurisdiction.
2. Relocation of Aircraft
(a) If a Restricted Party decides to operate any Aircraft outside the
jurisdiction listed with respect to that Aircraft on Schedule I as of the date
of this Agreement for a period of longer than 90 days, CHC shall as soon as
reasonably possible following the decision to relocate an Aircraft to another
jurisdiction (the "New Jurisdiction") and, in any event, not later than 30 days
after the Aircraft has left its original jurisdiction, notify the Agent
-2-
in writing of the relocation and of (i) the intended duration and purpose of
such relocation, (ii) the existence of full war risk insurance on such aircraft
(unless it is a jurisdiction where war risk coverage has not been generally
applicable under CHC's insurance policies or such war risk coverage is otherwise
waived in writing by the Agent), (iii) details of any intention to lease or
sublease the Aircraft to any other person, including another Restricted Party,
and (iv) the fact that the continued operational control of the Aircraft
remains, directly or indirectly with a Restricted Party.
(b) If the New Jurisdiction is a Primary Operating Jurisdiction or another
jurisdiction in which Aircraft owned by Restricted Parties are located at the
date of this Agreement, the Restricted Party that is the owner of the Aircraft
that has been moved shall, as soon as possible and in any event not later than
60 days after the Aircraft has entered the New Jurisdiction, complete its
compliance with clause M1.(b) above, including delivery of a legal opinion
concerning the new Security, unless the Agent has previously excused such
compliance with respect to other Aircraft operating in the New Jurisdiction, in
which case the Restricted Party shall promptly take whatever steps, if any, have
previously been required by the Agent with respect to other Aircraft then or
previously operating in the New Jurisdiction. It is acknowledged that the Agent
has excused compliance with respect to Saudi Arabia, Equatorial Guinea, Ecuador,
Thailand, Azerbaijan, Myanmar, East Timor, Philippines, Mozambique, Brazil,
Nigeria, Namibia, Angola, Chad, Cameroon and Indonesia. [Note: Amended by Tenth
Amending Agreement]
(c) If the New Jurisdiction is a not Primary Operating Jurisdiction or
another jurisdiction in which Aircraft owned by Restricted Parties are located
at the date of this Agreement, the Restricted Party that is the owner of the
Aircraft that has been moved shall, as soon as possible and in any event not
later than 60 days after the Aircraft has entered the New Jurisdiction, either
complete its compliance with clause M1.(b) above, including delivery of a legal
opinion concerning the new Security, or provide the Agent with a legal opinion
from counsel acceptable to the Agent in the New Jurisdiction:
(i) specifying the Security instruments which ought to be duly
registered, filed or recorded in such New Jurisdiction so as to
perfect the security interest of the Lenders with respect to
the Aircraft being relocated into that New Jurisdiction, and
the time period within which such Security should be reasonably
capable of preparation and filing in such New Jurisdiction
(together with a written direction of CHC or the relevant
Restricted Party to such local counsel to do so as soon as
reasonably possible); or
(ii) stating that no registration of the Security over such Aircraft
is required or possible in that New Jurisdiction to perfect the
security interests of the Lenders with respect to the Aircraft
being relocated in that New Jurisdiction or, alternatively,
that it is not reasonably practicable to do so in the opinion
of such local counsel, acting reasonably and that such
registration, in any event, would not provide any substantive
improvement in the security position of the Lenders with
respect to the relocated Aircraft in that New Jurisdiction.
-3-
Unless the opinion of local counsel is not acceptable to the Agent acting
reasonably, in the case of alternative (i), the Restricted Party shall promptly
take the steps contemplated by the opinion of local counsel to provide Security,
including delivery of a legal opinion concerning the new Security, and, in the
case of alternative (ii), the Restricted Party shall take any steps in place of
giving Security that the Agent may reasonably require.
Notwithstanding the foregoing, legal opinions shall not be required as aforesaid
and Security instruments need not be registered, filed or recorded in Iran,
South America or Africa (other than the Republic of South Africa) unless the
Agent so requires when an Event of Default or Pending Event of Default has
occurred and is continuing.
3. Possession of Aircraft
Unless otherwise expressly permitted in this Schedule M, it shall not, without
the prior written consent of the Agent, lease, charter (except in circumstances
in which the Aircraft is at all relevant times operated by crew employed by, or
subject to the control of, the Restricted Party) or otherwise deliver, transfer
or relinquish possession, custody or control of an Aircraft to a third party,
except:
(a) an Aircraft may be delivered to a manufacturer or to any other person
for testing, overhaul, service, repair or maintenance work to be
carried out upon it or for modification, alterations or changes
permitted or required to be made by this Agreement to be carried out
thereon;
(b) an Aircraft may be leased or sub-leased to another Restricted Party or
to a Person that is partially owned by a Restricted Party or which has
entered into a joint venture agreement with a Restricted Party as long
as clause M4 below is complied with;
(c) an Aircraft that is leased by a Restricted Party from a person other
than a Restricted Party may be sub-leased with the consent of the
other person.
4. Permitted Transfers
So long as no Event of Default or Pending Event of Default is outstanding, a
Restricted Party may transfer possession of any of the Aircraft by way of sale
to another Restricted Party or by way of lease or sublease to another Restricted
Party or to any Person that is partially owned by a Restricted Party or which
has entered into a joint venture agreement with a Restricted Party, in each case
to perform a customer contract utilizing such Aircraft, and in each case on
terms customary in the industry in which it is engaged and in the ordinary and
usual course of the business of that Restricted Party consistent with its past
and continuing practice, provided that (unless modified with the written consent
of the Agent):
(a) a Restricted Party or an entity under its de facto control, shall
maintain direct or indirect operational control of the Aircraft,
whether by wet-lease of the Aircraft (with pilots and operational
support) or otherwise;
-4-
(b) no such agreement (other than a sale) shall be for a duration of more
than five years or the duration of the customer contract in question,
whichever is less, and for the purposes of this clause, an agreement
initially for less than five years, but where the lessee or sub-lessee
retains uninterrupted or substantially uninterrupted possession of
such leased Aircraft for a period in excess of five years after the
day such lessee first acquired possession of the Aircraft in question,
shall be an agreement for a duration of more than five years;
(c) the insurance required to be maintained hereunder shall continue to be
applicable to and in full force and effect as regards any such leased
Aircraft, with the Lenders and Agent as first loss payees in the same
manner and to the same extent as if there were no lease of the
Aircraft by the Restricted Party while in such jurisdiction;
(d) the Restricted Party shall comply with the requirements of this
Schedule M concerning location of Aircraft and Security to the same
extent as would have been required if the Aircraft remained in the
possession of the Restricted Party;
(e) the Restricted Party which is the lessor of the said Aircraft is
entitled by law to receive all of the proceeds arising from such lease
or sub-lease; and
(f) all of the other obligations of such lessor Restricted Party hereunder
in respect of the maintenance, use and operations of such Aircraft
shall continue to apply notwithstanding any such lease agreements or
transfer of possession of any of the Aircraft as aforesaid and such
lease or other agreement shall impose the same obligations on such
third party lessee or sub-lessee of the Aircraft.
5. Registration
(a) It shall at its own cost and expense cause each Aircraft to be duly
registered in the jurisdiction in which it is located under the applicable civil
aviation regulations and at all times to remain so duly registered in its name
and shall to the extent to which it is possible so to do cause the interest of
the Agent to be noted with the applicable civil aviation authority, except where
maintaining a pre-existing registration despite re-location to a new
jurisdiction is prudent according to industry practice and in compliance with
applicable Requirements of Law.
(b) It shall not register the Aircraft under the laws of any other country
except in compliance with clause M2 above.
(c) It shall promptly as and when reasonably requested by the Agent
provide the Agent with evidence of the currency of the applicable certificate of
registration and certificate of airworthiness issued pursuant to the applicable
civil aviation regulations in respect of the Aircraft.
(d) It shall maintain any other Permit which may from time to time be
required under any applicable Requirement of Law for the ownership or operation
of the Aircraft.
-5-
6. Maintenance
It shall at all times:
(a) maintain, inspect, service, repair, overhaul and test the Aircraft and
each Part thereof so as to keep it at all times in good operational
repair and condition in all respects and in compliance with applicable
Requirements of Law and all requirements and recommendations of any
manufacturer and/or supplier of the Aircraft and each Part thereof; in
each case, such things shall be done in a manner, to an extent and
with a standard of care not less than the standard of the industry for
prudent maintenance and safety of similar aircraft, and in such manner
and condition as will maintain all warranties and indemnities of
manufacturers and/or suppliers and as will fully satisfy any
applicable requirements of any insurer;
(b) maintain all records, logs and other similar material required by
applicable Requirements of Law or required by any manufacturer and/or
supplier in order to maintain any warranties given by such
manufacturer and/or supplier or required by any insurer;
(c) upon the request of the Agent, promptly furnish to the Agent such
information to which the Restricted Party has or should have access as
may be required to enable the Agent to file any notifications of
repairs required to be filed by the Agent with any applicable
governmental authority in respect of the Aircraft or the operation
thereof;
(d) comply with all Requirements of Law applicable to the Aircraft or the
operation thereof including without limitation all airworthiness
directives and ensure that at all times there is a current,
unconditional airworthiness certificate issued in respect of the
Aircraft under the applicable civil aviation regulations;
(e) ensure that any direction by the applicable civil aviation authority
in respect of a certificate of airworthiness or maintenance release or
any notification or suspension or cancellation of a maintenance
release or certificate of airworthiness is promptly brought to the
attention of any person who is likely to fly or likely to issue a
maintenance release in respect of the Aircraft;
(f) ensure that each Aircraft is, at all times when not being operated,
properly and safely hangared and sheltered where it is reasonably
possible and customary under industry practice to do so.
Where it does not employ qualified staff for the purpose referred to in this
clause, it shall at its own expense effect maintain and keep in force
maintenance contracts in respect of the Aircraft providing for regular
maintenance in accordance with the manufacturer's specification and in
particular such contracts as may be properly required by any insurer in
pursuance of the Restricted Party's obligations to effect insurance. Each such
contract shall be entered into with a reputable contractor engaged in the
business of maintenance and repair of such parts of the Aircraft. The Restricted
Party shall upon the request of the
-6-
Agent produce to the Agent copies of all such maintenance contracts together
with satisfactory evidence that the same are still in force.
In the event of the Restricted Party failing to comply with its obligations
under this clause, the Agent shall be entitled to give notice to the Restricted
Party to remedy such failure and in the event that such remedy is not effected
to the satisfaction of the Agent within a reasonable period, the Agent shall be
entitled, but not bound, to effect or cause to be effected, at the expense of
the Restricted Party, such repairs and the like works as are necessary to remedy
such failure.
7. Replacement, Interchange and Exchange of Parts
(a) It shall promptly replace (or cause to be replaced) all Parts which
are or may from time to time be incorporated or installed in or attached to an
Aircraft and which may from time to time become worn out, lost, stolen,
destroyed, seized, confiscated, damaged beyond repair or permanently rendered
unfit for use for any reason whatsoever, and may, in the ordinary course of
maintenance, service, overhaul, repair or testing of such Aircraft remove any
Parts provided that such Parts are replaced as promptly as practicable,
consistent with normal industry practice. All replacement Parts shall be free
and clear of any Encumbrances (except Permitted Encumbrances) and shall be in as
good operating condition as, and shall have a value and utility at least equal
to, the Parts being replaced.
(b) All Parts at any time so removed from any Aircraft shall remain the
property of such Restricted Party and subject to the Security, no matter where
located, until such time as such Parts shall be replaced by Parts which meet the
requirements for replacement Parts specified above and until title to such
replacement Parts has vested in the Restricted Party in accordance herewith, at
which time the removed Parts shall cease to be subject to the Security unless
and until they subsequently become replacement Parts. Immediately upon any
replacement Parts becoming incorporated or installed in or attached to any
Aircraft as hereinbefore provided, such replacement Parts shall be deemed a part
of such Aircraft and be subject to the Security.
(c) The Lenders acknowledge and consent to the necessity for a Restricted
Party which operates Aircraft to interchange Parts on an Aircraft which have
time life characteristics and are subject to repair and overhaul among the
similar type Aircraft in the Restricted Parties' fleet from time to time, and to
engage in interchanges and exchanges of such Parts either internally from its
pool of Parts or externally pursuant to power-by-the-hour arrangements with
manufacturers and possibly with other third parties in the ordinary course of
its business, consistent with industry practice.
(d) Unless an Event of Default or Pending Event of Default has occurred
and is continuing, a Restricted Party which operates any of the Aircraft shall
be entitled to directly or indirectly exchange, deal in and dispose of such
exchangeable Parts in the usual course of its business, consistent with industry
practice, when substituting the same for Parts of equal or greater value and
utility. Whether it occurs pursuant to a power-by-the-hour contract or
otherwise, any Part at any time removed from an Aircraft of the Restricted Party
shall remain subject to the Security until, but only until, such time
-7-
as a replacement Part of equal or greater value and utility to the Part so
removed is incorporated into or annexed to such Aircraft, and title to such
replacement Part has passed to the Restricted Party such that the same becomes
subject to the Security free and clear of all Encumbrances other than Permitted
Encumbrances. Thereafter the Part so removed may be delivered and transferred
free and clear of the Security to any third party which provided the replacement
Part if there is an obligation to do so.
(e) Upon substitution of an exchangeable Part into any Aircraft that is
not beneficially owned by a Restricted Party but is operated within its fleet,
any right, title or security interest of the Lenders therein shall thereupon be
and become subordinate to the security interest or rights of any third party
lender or lessor then holding a prior ranking Permitted Encumbrance over the
Aircraft into which the same has been incorporated, provided that a Part of
equal function and utility is removed from the Aircraft in exchange therefor and
concurrently becomes subject to the Security free and clear of the security
interest or rights of the third party lender or lessor.
8. Alterations, Modifications and Additions
(a) A Restricted Party may, at its own cost and expense, from time to time
make such alterations, modifications and additions to any such Aircraft as it
may deem desirable in the proper conduct of its business, provided that no such
alteration, modification or addition diminishes the value, utility, condition or
airworthiness of the Aircraft below the value, utility, condition and
airworthiness thereof immediately prior to such alteration, modification or
addition, and that such Aircraft then has the utility and airworthiness required
to be maintained by the terms of this Agreement.
(b) Each Restricted Party agrees to notify the Agent at least 14 days in
advance if it proposes to make any alteration, modification or addition to an
Aircraft which constitutes a material change to the configuration of the
Aircraft.
9. Insurance
It shall, at its own expense, take out and at all times maintain in full force
and effect insurance in such amounts and in form and through brokers, reasonably
satisfactory to the Agent in its name and in the name of the Agent as its
interest may appear against:
(a) loss, damage or destruction (whether total or partial) to the
Aircraft, Parts and technical documents relating thereto;
(b) any liability for:
(i) injury (including bodily injury and personal injury to
passengers, crew, employees and third parties);
(ii) damage (including property damage) to baggage, cargo, mail,
public and private property (whether owned by cargo consignors,
passengers, crew, employees or third parties);
-8-
(iii) any claims whatsoever (whether or not similar to the foregoing)
caused by or arising out of or in connection with the
operation, storage, maintenance or use of the Aircraft, Parts
and technical documents; and
(c) any other liability normally insured against by companies engaged in
the same or similar business or companies owning and operating similar
Aircraft; and
(d) such other risks as the Agent may reasonably specify from time to
time.
All insurance shall be:
(e) in amounts which are not less than the public liability and property
damage insurance applicable to similar aircraft which comprise its
fleet and on which it carries insurance;
(f) of the type usually carried out by companies engaged in the same or
similar business, owning and operating similar aircraft and which
covers risks of the kind customarily insured against by such
companies;
(g) maintained in effect with insurers of recognised standing in leading
insurance markets; and
(h) endorsed with a breach of warranties endorsement for the benefit of
the Agent in terms approved by the Agent.
During the term of this Agreement it shall:
(i) not without the prior consent of the Agent alter any of the insurance
in a manner which has a material adverse effect in relation to the
cover and/or risks provided by the insurance as at the date hereof nor
make, do, consent or agree to any act or omission which would or might
render any of the insurance invalid, void, voidable or unenforceable
or render any sum paid out under any of the insurance repayable in
whole or in part;
(j) not cause or permit the Aircraft to be operated in any way
inconsistent with the provisions of warranties of, or implied in,
outside the geographical limits of or otherwise outside the cover
provided by, any insurance or to be used or kept for any purpose or to
carry any cargo in any manner or in any place not permitted by any
insurance;
(k) renew all insurance at least 14 days before the relevant policies or
contracts expire and ensure that the approved brokers promptly confirm
in writing to the Agent as and when each such renewal is effected;
(l) comply with the terms of each insurance policy and duly pay all
premiums, calls, contributions or other sums of money from time to
time payable in respect of the insurance;
-9-
(m) not authorize or permit payment of any monies in respect of the
insurance other than to the Agent or as provided in Sections 4.5 and
10.9 of this Agreement;
(n) except as provided in Sections 4.5 and 10.9 of this Agreement, if it
receives payment of any moneys in respect of insurance, forthwith pay
over the same to the Agent and until paid over hold such moneys in
trust for the Agent;
(o) immediately notify the Agent in reasonable detail about any claims or
events giving rise to claims;
(p) comply with all Requirements of Law from time to time regarding
insurance in connection with the Aircraft imposed by the jurisdiction
of registration of the Aircraft and any state to, from or over which
it is flown.
The following additional provisions shall apply to insurance:
(q) each policy of insurance shall expressly provide that all of the
provisions thereof except the limits of liability shall operate in the
same manner as if it was a separate policy covering each insured;
(r) the geographical limits from time to time for the operation of each
policy of insurance with respect to the Aircraft shall include as the
minimum coverage all territories in or over which it will operate the
Aircraft;
(s) each policy of insurance shall also contain an agreement by the
insurer that notwithstanding the lapse of any such policy except by
reason of expiration in accordance with its terms, each such policy
shall continue in force for the benefit of the Agent for at least 30
days after written notice of such cancellation shall have been given
to the Agent;
(t) no reduction in limits or coverage of the insurance shall be made in
any such policy or any part thereof except with the prior written
approval of the Agent;
(u) each policy of insurance shall insure the Agent's interest up to the
limits of such policy regardless of any act or neglect of the
Restricted Party or any breach or violation by the Agent or the
Restricted Party of any warranties declarations or conditions
contained in such policies unless the Agent was aware of the same at
the date of entry into the policy, and the Restricted Party hereby
represents that no such breach or violation exists.
If the Restricted Party fails to effect any required insurance, the Agent will
be entitled (but not bound):
(v) to pay any premiums or to effect the insurance which the Restricted
Party has so failed to effect or otherwise to remedy such failure in
such manner as the Agent considers appropriate or to effect any
additional insurance which the Agent may in its reasonable opinion
consider necessary to protect its interests under the Security and in
the Aircraft and the other Property, and any amount expended by
-10-
the Agent in effecting such insurances or such additional insurances
will be repayable by the relevant Restricted Party to the Agent
together with interest thereon at the Prime Rate plus 3% from the date
of such expenditure by the Agent to the date of payment thereof by
Brintel (both before and after any relevant judgment); and
(w) to require such Aircraft as the Insurances relate to remain grounded
at any airport or (as the case may be) to proceed to and remain at any
airport designated by the Agent until such failure is remedied to the
satisfaction of the Agent.
10. Operation
During the term of this Agreement, it shall:
(a) not operate the Aircraft in any manner contrary to the Requirements of
Law in the territories in which the Aircraft may operate from time to
time;
(b) not use or operate the Aircraft for any purpose for which it is not
designed or suited or outside tolerances and limitations for which it
was designed or in any manner contrary to any airworthiness
certificate, licence or registration relating to the Aircraft issued
by the applicable civil aviation authority;
(c) not cause or permit the Aircraft to be employed for any illegal
purpose in any manner or to be located or operated in any country
which would imperil its safety or render it liable to confiscation,
forfeiture, seizure or destruction;
(d) take all necessary steps to maintain its air operators licence;
(e) not enter or trade to any zone which is declared a war zone by any
governmental authority or by the Aircraft's insurers unless the
Restricted Party shall have given notice to the Agent and effected at
its expense such special insurance cover as the Agent may reasonably
require and unless the Aircraft or other Aircraft are operating there
at the date of this Agreement or the Agent shall have first given its
consent thereto in writing;
(f) not do or omit to do anything which may prejudice any right which is
material to the Restricted Party and which the Restricted Party or the
Agent may have in respect of the Aircraft or any Part against the
manufacturer or supplier of the same;
(g) not at any time represent or hold out the Agent or any Lender as
carrying any goods or passengers in any Aircraft or as being in any
way connected or associated with any operation of any Aircraft or in
any other way having any interest in any of the Aircraft except as
holder of the Security;
(h) not pledge the credit of the Agent or any Lender for any maintenance,
service, repairs, overhauls of, or modifications to, or changes or
alterations in, the Aircraft
-11-
or any Part or in connection with the operation of the Aircraft or for
any other purpose whatsoever;
(i) promptly furnish to the Agent all such information as the Agent may
from time to time reasonably require regarding the Aircraft and their
usage and engagements and, if reasonably required, copies of all
charters and other contracts for their employment or otherwise, but
except in the case of the enforcement of the Security the Agent shall
treat all information furnished to it pursuant to this clause as a
matter of the strictest commercial confidence;
(j) maintain accurate complete and current records of all flights made by
the Aircraft and of all maintenance, modifications and repairs carried
out to the Aircraft and any Part, and will maintain all other records,
logs and documents which are required to be maintained in respect of
the Aircraft in accordance with the requirements of the applicable
civil aviation authority and will on the Agent's first demand deliver
to the Agent a full inventory of such documents.
11. Marking of Aircraft
If requested by the Agent in writing, it shall promptly affix and thereafter
maintain engraved metal nameplates approved by the Agent which shall identify
the Agent as the holder of Security and shall be placed in the cockpit of the
airframe of each Aircraft adjacent to the airworthiness certificate. Such
nameplates shall also state the type, manufacturer's serial number and current
registration data of the Aircraft or engine (as the case may be). Except as
provided in this clause, the Restricted Party shall not allow the name of any
person to be placed on any Airframe or engine as a designation that might be
interpreted as a claim of ownership or entitlement to an Encumbrance except that
the Restricted Party may place its colours and insignia on any Aircraft.
12. Prevention of Arrest and Discharge of Security Interests
(a) It shall not do, and will endeavour so far as reasonably within its
powers to prevent, any act which could reasonably be expected to
result in the Aircraft or any Part being arrested, confiscated,
seized, taken in execution, poinded, impounded, forfeited, subjected
to distress, detained in exercise or purported exercise of any
possessory lien or other claim or otherwise taken from the possession
of the Restricted Party.
(b) If any such arrest, confiscation, seizure, taking, poinding,
impounding, forfeiture, subjection, or detention occurs it shall give
the Agent notice within 24 hours thereof and will, at the Restricted
Party's expense, procure the release of the Aircraft or the Part
concerned within 7 days of receiving notice of the occurrence by
providing bail or otherwise as the circumstances may require, and it
shall be responsible for discharging each and every liability in
connection with any such process, claim or lien without regard to
whether or not it is in possession of the Aircraft or the Part
concerned.
-12-
13. Application to Leased Aircraft
Clauses 1, 2, 4, 7, 8, 9 and 11 do not apply to Aircraft that are leased by
Restricted Parties from third parties.
SCHEDULE N
RESTRICTED PARTIES
As of 31 March 2004, the Restricted Parties are CHC, CHC Helicopter Holdings
Limited, Viking Helicopters Limited, CHL, CHC Helicopters (Barbados) Limited
(formerly Canadian Helicopters (Barbados) Limited), CHC Leasing (Barbados)
Limited (formerly CHL Leasing (Barbados) Limited), Integra Leasing AS, Canadian
Helicopters (U.K.) Limited, Flight Handling Limited, Brintel Holdings Limited,
Brintel, Vinland Denmark A/S, Vinland, CHC Denmark ApS (formerly Brintel ApS),
HSG, Xxxxx Helicopter Services Limited, Management Aviation Limited, Xxxxx
Helicopter Services Pty Ltd., Xxxxx Helicopters Pty Ltd., Xxxxx Xxxx Strait
Helicopters Pty Ltd., Xxxxx Helicopters International Pty Ltd., Australian
Helicopters Trust, Xxxxx Off-Shore Helicopters Pty Ltd., Court Helicopter
Services (Proprietary) Ltd. (formerly Court Air Holdings (Proprietary) Ltd.),
Court Air (Proprietary) Ltd., CHC Helicopters (Africa) (Proprietary) Ltd.
(formerly Court Helicopters (Proprietary) Ltd.), Court Flight Safety
(Proprietary) Ltd., CHC Helicopters (Mauritius) Ltd. (formerly Court Helicopters
Ltd.), Bond Helicopter Services Limited, Bond, North Denes Aerodrome Ltd., CHC
Ireland Limited (formerly Bond Helicopters (Ireland) Ltd.), CHC Helikopter
Service AS (formerly Helikopter Service AS), Scancopter AS, Heliwest AS, Astec
Helicopter Services AS, CHC Capital (Barbados) Limited, CHC Sweden AB and CHC
Netherlands BV.
Xxxxxxxxx Luchtvaart Groep B.V., Capital Aviation Services B.V.,
Handelsmaatschappij Xxxxxxxxx & Co B.V., Luchtvaartmaatschappij Xxxxxxxxx
Airways B.V., Xxxxxxxxx Aircraft Maintenance B.V., Xxxxxxxxx Tchad SA, Xxxxxxxxx
Northsea Helicopters B.V., Xxxxxxxxx Northsea Helicopters C.V., Xxxxxxxxx Canada
Ltd., Xxxxxxxxx Onroerend Goed B.V., Aviation Personnel Recruitment and
Management (APRAM) Limited, 4083423 Canada Inc. and Whirly Bird Services Limited
have or will become Restricted Parties on or about the date of this agreement
[Note: 21 April 2004] by the delivery of a supplement in the form prescribed by
the Existing Credit Agreement.
Xxxxxxxxx Air Target Services B.V. will become a Restricted Party on or before
30 April 2004.
[Note: Amended by Tenth and Eleventh Amending Agreements. Danish International
Helicopters ApS was released as a Restricted Party by the Fourth Amending
Agreement]
SCHEDULE O
CERTAIN OPERATING LEASES
[see references in Sections 1.1.47(e), 1.1.96(q)(i), 1.1.96(q)(ii)]
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
HELICOPTER
DATE TYPE OF HELICOPTER DETAILS LENDER / OPERATOR TRANSACTION
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
1. April 97 AS332L2 LN-OHC msn 2393 Royal Bank of Scotland / HkS Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
2. 29 August 97 AS332L1 Super Puma LN-OPH msn 2347 GE Capital Services (EEF) Sale and Leaseback
Limited ("GECap") / HkS
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
3. 29 August 97 AS332L1 Super Puma LN-OBF msn 2381 Capital Bank plc / HkS Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
4. AS332L1 Super Puma LN-OBQ msn 2312 Nordbanken Finans AB (publ.) Sale and Leaseback
/ HkS
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
5. 26 May 98 AS332L2 Super Puma LN-OHE msn 2474 GECap/ HkS New delivery
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
6. 25 June 98 AS332L1 Super Puma VH-LHH msn 2407 Capital Bank plc / Xxxxx Purchase of used
Off-Shore equipment
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
7. 21 August 98 AS332L2 Super Puma G-PUMM msn 2477 GE Cap / Bond New delivery
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
8. 5 October 98 AS332L2 Super Puma G-XXXX msn 2467 GE Cap / Bond New delivery
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
9. 26 November 98 AS332L2 Super Puma G-PUMN msn 2484 Capital Bank / Bond New delivery *
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
10. 8 January 99 AS332L2 Super Puma LN-OHG msn 2493 De Nationale New delivery
Investeringsbank NV
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
11. August 99 AS332L2 Super Puma LN-OHA msn 2396 GE Cap Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
12. August 99 AS332L2 Super Puma LN-OHB ms 2398 GE Cap Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
13. November 97 AS332L1 LN-OMT ms 2468 FinansScandic AB (now SEB Sale and Leaseback
Finans)
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
14. April 97 AS332L2 LN-OHD ms 2395 FinansScandic AB (now SEB Sale and Leaseback
Finans)
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
15. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
16. S76A C-GFFJ ms 760138 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
17. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
18. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
HELICOPTER
DATE TYPE OF HELICOPTER DETAILS LENDER / OPERATOR TRANSACTION
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
19. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
20. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
21. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
22. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
23. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
24. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
25. S76A X-XXXX xx 000000 GE Capital Sale and Leaseback
-------- ---------------- ---------------------- ------------------ ------------------------------- ----------------------
