UP TO CDN. $1,200,000,000 EXTENDIBLE REVOLVING TERM CREDIT FACILITY FIFTH AMENDED AND RESTATED CREDIT AGREEMENT BETWEEN: PENGROWTH CORPORATION (AS BORROWER) - AND - THE FINANCIAL INSTITUTIONS AND OTHER ENTITIES NAMED HEREIN IN THEIR CAPACITIES AS...
EXTENDIBLE REVOLVING TERM CREDIT FACILITY
CREDIT AGREEMENT
(AS BORROWER)
IN THEIR CAPACITIES AS LENDERS
(AS LENDERS)
(AS ADMINISTRATIVE AGENT)
(AS SYNDICATION AGENT)
CANADIAN IMPERIAL BANK OF COMMERCE
and HSBC BANK CANADA
(AS CO-DOCUMENTATION AGENTS)
Xxxxxxx Xxxxx LLP
Page | ||
ARTICLE 1 INTERPRETATION |
1 | |
1.1 Definitions |
1 | |
1.2 Headings and Table of Contents |
28 | |
1.3 References |
28 | |
1.4 Rules of Interpretation |
29 | |
1.5 Generally Accepted Accounting Principles |
29 | |
1.6 Time |
29 | |
1.7 Payment for Value |
29 | |
ARTICLE 2 REPRESENTATIONS AND WARRANTIES |
29 | |
2.1 Representations and Warranties |
29 | |
2.2 Deemed Representation and Warranty |
33 | |
ARTICLE 3 THE CREDIT FACILITY |
34 | |
3.1 Amendment and Restatement and Obligations of Each Lender |
34 | |
3.2 Purpose |
35 | |
3.3 Takeover |
36 | |
3.4 Borrowings |
37 | |
3.5 Selection of Libor Interest Periods |
37 | |
3.6 Conditions Applicable to Bankers’ Acceptances and BA Equivalent Advances |
38 | |
3.7 Agent’s Duties re Bankers’ Acceptances and BA Equivalent Advances |
41 | |
3.8 Letters of Credit Issued by Lenders |
43 | |
3.9 Letters of Credit Issued by Issuing Lender |
44 | |
3.10 Notice of Repayment |
48 | |
3.11 Pro-Rata Treatment of Borrowings |
48 | |
3.12 Conversion Option |
49 | |
3.13 Rollovers |
49 | |
3.14 Notices Irrevocable |
50 | |
3.15 Extension of Maturity Date |
50 | |
ARTICLE 4 REPAYMENT AND PREPAYMENT |
51 | |
4.1 Reduction of Commitment and Repayment of Borrowings |
51 | |
4.2 Repayment of Borrowings due to Exchange Rate Fluctuations |
51 | |
4.3 Cancellation of Commitment and Prepayment |
52 | |
4.4 Cancellation of a Lender’s Commitment |
52 | |
4.5 Early Repayment of Bankers’ Acceptances and Libor Loans |
53 | |
4.6 Evidence of Indebtedness |
53 | |
ARTICLE 5 PAYMENT OF INTEREST AND FEES |
53 | |
5.1 Interest on Cdn. Prime Loans |
53 | |
5.2 Interest on U.S. Base Rate Loans |
54 | |
5.3 Interest on Libor Loans |
54 | |
5.4 Bankers’ Acceptance Fees |
54 |
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Page | ||
5.5 Letter of Credit Fees |
55 | |
5.6 Interest on Overdue Amounts |
55 | |
5.7 Standby Fees |
56 | |
5.8 Agent’s Fees |
56 | |
5.9 Commitment Fees |
56 | |
5.10 Maximum Rate Permitted by Law |
57 | |
5.11 Waiver |
57 | |
5.12 Interest and Fee Adjustment |
57 | |
5.13 Nominal Rates |
57 | |
ARTICLE 6 PAYMENT AND TAXES |
57 | |
6.1 Time, Place and Currency of Payment |
57 | |
6.2 Application of Payments Prior to an Event of Default |
58 | |
6.3 Taxes |
58 | |
6.4 Account Debit Authorization |
59 | |
ARTICLE 7 CONDITIONS PRECEDENT TO DISBURSEMENT OF THE BORROWINGS |
59 | |
7.1 Conditions Precedent |
59 | |
7.2 Continuing Conditions Precedent |
60 | |
7.3 Waiver of a Condition Precedent |
61 | |
ARTICLE 8 COVENANTS OF THE BORROWER |
61 | |
8.1 Positive Covenants of the Borrower |
61 | |
8.2 Negative Covenants of the Borrower |
66 | |
8.3 Financial Covenants |
69 | |
ARTICLE 9 EVENTS OF DEFAULT |
70 | |
9.1 Events of Default |
70 | |
9.2 Acceleration and Demand |
73 | |
9.3 Waiver of Default |
73 | |
9.4 Application of Payments Following Demand and Acceleration |
73 | |
9.5 Remedies Cumulative |
74 | |
9.6 Set-Off |
74 | |
9.7 Cash Collateral Accounts |
75 | |
9.8 Lenders May Perform Covenants |
75 | |
ARTICLE 10 EXPENSES AND INDEMNITIES |
75 | |
10.1 Reimbursement of Expenses and Indemnity |
75 | |
10.2 Increased Cost |
75 | |
10.3 Illegality |
76 | |
10.4 Substitute Basis of Borrowing |
77 | |
10.5 Funding Indemnity |
77 | |
10.6 General Indemnity |
78 | |
ARTICLE 11 THE AGENT AND THE LENDERS |
78 |
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Page | ||
11.1 Authorization of Agent |
78 | |
11.2 Responsibility of Agent |
78 | |
11.3 Acknowledgment of Lenders |
79 | |
11.4 Rights and Obligations of Each Lender |
79 | |
11.5 Determinations by Lenders |
80 | |
11.6 Notices between the Lenders, the Agent and the Borrower |
80 | |
11.7 Agent’s Duty to Deliver Documents Obtained from the Borrower |
80 | |
11.8 Arrangements for Borrowings |
80 | |
11.9 Arrangements for Repayment of Borrowings |
81 | |
11.10 Repayment by Lenders to Agent |
81 | |
11.11 Adjustments Among Lenders |
82 | |
11.12 Lenders’ Consents to Waivers, Amendments, etc. |
83 | |
11.13 Reimbursement of Agent’s Expenses |
84 | |
11.14 Reliance by Agent and Lenders on Notices, etc. |
84 | |
11.15 Relations with Borrower |
85 | |
11.16 Sharing of Information |
85 | |
11.17 Successor Agent |
85 | |
11.18 Amendment of this Article 11 |
85 | |
11.19 Dealing with Agent |
86 | |
11.20 Indemnity of Agent |
86 | |
ARTICLE 12 SUCCESSORS AND ASSIGNS AND JUDGMENT CURRENCY |
86 | |
12.1 Successors and Assigns |
86 | |
12.2 Judgment Currency |
87 | |
12.3 Exchange and Confidentiality of Information |
87 | |
ARTICLE 13 MISCELLANEOUS |
88 | |
13.1 Severability |
89 | |
13.2 Survival of Undertakings |
89 | |
13.3 Failure to Act |
89 | |
13.4 Amendments |
89 | |
13.5 Notice |
90 | |
13.6 Further Assurances |
90 | |
13.7 Governing Law |
90 | |
13.8 Whole Agreement |
90 | |
13.9 Term of Agreement |
90 | |
13.10 Time of Essence |
90 | |
13.11 Jurisdiction |
90 | |
13.12 Counterpart Execution |
91 |
Schedule A
|
Notice of Borrowing, Repayment, Prepayment or Cancellation of Total Commitment | |
Schedule B
|
Notice of Borrowing by way of Bankers’ Acceptance | |
Schedule C
|
Notice of Conversion | |
Schedule D
|
Notice of Rollover | |
Schedule E
|
Compliance Certificate | |
Schedule F
|
Lender Transfer Agreement | |
Schedule G
|
Request for Extension |
iv
Schedule H
|
Power of Attorney Terms — Bankers’ Acceptance | |
Schedule I
|
Letter of Credit Application |
BETWEEN: |
||||
PENGROWTH CORPORATION, a corporation incorporated under the laws of the Province of Alberta, having an office in Calgary, Alberta | ||||
OF THE FIRST PART | ||||
AND |
||||
THE FINANCIAL INSTITUTIONS AND OTHER ENTITIES NAMED HEREIN or in Lender Transfer Agreements, in their capacities as Lenders | ||||
OF THE SECOND PART | ||||
AND |
||||
ROYAL BANK OF CANADA, a Canadian chartered bank having a branch in Toronto, Ontario, in its capacity as Administrative Agent | ||||
OF THE THIRD PART |
INTERPRETATION
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(a) | any person which, directly or indirectly, controls, is controlled by or is under common control with, such person; and for the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” or “under common control with”) means the power to direct or cause the direction of the management and policies of any person, whether through the ownership of voting shares or by contract or otherwise; | |
(b) | any person which beneficially owns or holds 10% or more of any class of shares (or in the case of a person that is not a corporation, 10% or more of the partnership or equity interest) of such person; or | |
(c) | any person of which 10% or more of any class of its shares (or in the case of a person that is not a corporation, 10% or more of the partnership or equity interest) is beneficially owned or held by such person or a subsidiary of such person; |
3
4
5
(a) | the annual rate of interest announced from time to time by the Agent as being its reference rate then in effect for determining interest rates on Canadian Dollar denominated commercial loans made by the Agent in Canada; and | |
(b) | a rate of interest per three hundred and sixty-five (365) day period equal to the One Month BA Rate plus one-half of one percent (1/2%); |
(a) | for Bankers’ Acceptances which have a Standard Term, the per annum rate of interest which is the rate determined as being the arithmetic average of the rates per annum (calculated on the basis of a year of three hundred and sixty-five (365) days) applicable to Canadian Dollar bankers’ acceptances having identical issue and comparable maturity dates as the Bankers’ Acceptances proposed to be issued by the Borrower displayed and identified as such on the display referred to as the “CDOR Page” (or any display substituted therefor) of Reuters Monitor Money Rates Service as at approximately 8:00 a.m. (Calgary time) on such day, or if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Agent in good faith after 8:00 a.m. (Calgary time) to reflect any error in a posted rate of interest or in the posted average annual rate of interest); and | |
(b) | for Bankers’ Acceptance which do not have a Standard Term or if the rate referred to in paragraph (a) of this definition does not appear on such CDOR Page, then the CDOR Rate, on any day, shall be the arithmetic average of the discount rate quoted by each Schedule I Reference Lender (determined by the Agent as of 8:00 a.m. (Calgary time) on such day) which would be applicable in respect of an issue of bankers’ acceptances in a comparable amount and with identical maturity dates to the Bankers’ Acceptances proposed to be issued by the Borrower on such day, or if such day is not a Business Day, then on the immediately preceding Business Day; |
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(a) | Consolidated Subordinated Debt; | |
(b) | Convertible Debt; and | |
(c) | Non-Recourse Debt of such person except to the extent the lender thereunder has made a claim against such person for a breach of any provision of the terms and conditions of the Non-Recourse Debt in respect of which the rights, remedies and recourse of the Non-Recourse Debt holder are not limited as provided for in the definition of Non-Recourse Debt; |
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(a) | an initial final maturity or due date in respect of repayment of principal extending beyond the latest Maturity Date of any Lender under this Agreement in effect at the time such debentures or notes are created, issued or assumed; | |
(b) | no scheduled or mandatory payment or repurchase of principal thereunder (other than acceleration following an event of default in regard thereto or payment which can be satisfied by the delivery of Trust Units as contemplated in paragraph (f) of this definition and other than on a change of control of the Trust where a Change of Control also occurs by reason of the definition thereof in this Agreement) prior to the latest Maturity Date of any Lender under this Agreement in effect at the time such debentures or notes are created, issued or assumed; | |
(c) | upon and during the continuance of a Default, an Event of Default or acceleration of the time for repayment of any Term Indebtedness, any Operating Indebtedness or any Swap Indebtedness which has not been rescinded, (i) all amounts payable in respect of principal, premium (if any) or interest under such debentures or notes are subordinate and junior in right of payment to all such Term Indebtedness, Operating Indebtedness and Swap Indebtedness and (ii) no enforcement steps or enforcement proceedings may be commenced in respect of such debentures or notes; | |
(d) | upon distribution of the assets of the Trust on any dissolution, winding up, total liquidation or reorganization of the Trust (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and |
8
liabilities of such person, or otherwise), all Term Indebtedness, Operating Indebtedness and Swap Indebtedness shall first be paid in full, or provisions made for such payment, before any payment is made on account of principal, premium (if any) or interest payable in regard to such debentures or notes; | ||
(e) | the occurrence of a Default or Event of Default hereunder or the acceleration of the time for repayment of any of the Term Indebtedness, any Operating Indebtedness or any Swap Indebtedness or enforcement of the rights and remedies of the Agent and the Lenders hereunder or under any other Loan Document shall not in and of themselves: |
(i) | cause a default or event of default (with the passage of time or otherwise) under such debentures or notes or the indenture governing the same; or | ||
(ii) | cause or permit the obligations under such debentures or notes to be due and payable prior to the stated maturity thereof; and |
(f) | payments of interest or principal due and payable under such debentures or notes can be satisfied, at the option of the Trust, by delivering units of the Trust in accordance with the indenture or agreement governing such debentures or notes (whether such units are received by the holders of such debentures or notes as payment or are sold by a trustee or representative under such indenture or agreement to provide cash for payment to holders of such debentures or notes); |
(a) | all indebtedness of such person for borrowed money; | |
(b) | obligations of such person pursuant to bankers’ acceptance facilities, note purchase facilities and commercial paper programs; | |
(c) | reimbursement obligations of such person in respect of letters of credit and letters of guarantee; | |
(d) | obligations of such person for the deferred purchase price of property or services which are to remain or do remain unpaid after the expiry of 120 days from the date of acquisition; | |
(e) | obligations of such person: |
(i) | to purchase indebtedness or to advance or supply funds for the payment or purchase of indebtedness of a person, including the purchase of debt securities or obligations; or |
9
(ii) | to make any payment, loan, advance, capital contribution or other investment in or to a person, or become or be bound by any agreement to do so, for the purpose of assuring a minimum equity, an asset base, a working capital or other balance sheet test or condition for any date or to provide funds for the payment of any debt liability, dividend or share liquidation payment, or otherwise to supply funds to or in any manner invest in such person; |
other than where any such obligations relate to payments made or to be made on behalf of any such person in the ordinary course of business in accordance with normal petroleum and natural gas industry practice pursuant to the provisions of operating agreements which require or permit joint operators under any such operating agreements to make such payments after such person has defaulted in the payment thereof; | ||
(f) | actual amounts owed under Swap Agreements of such person upon termination of such Swap Agreements, including early termination, including, without limitation, net settlement amounts payable upon maturity and termination payments payable upon termination; | |
(g) | net proceeds received by such person from any accounts receivable securitization program; | |
(h) | indebtedness of such person secured by any Security Interest existing on property owned by such person, whether or not the indebtedness secured thereby shall have been assumed; | |
(i) | obligations of such person with respect to Prepaid Obligations and deferred revenues relating to third party obligations; | |
(j) | Capitalized Lease Obligations and obligations relating to Sale-Leaseback transactions of such person; | |
(k) | all redemption obligations with respect to any shares or units issued by such person which are not held by the Trust, the Borrower or a Designated Subsidiary, and which are by their terms or pursuant to any contract, agreement or arrangement: |
(i) | redeemable, retractable, payable or required to be purchased or otherwise retired or extinguished, or convertible into debt of such person in any case, prior to the then latest Maturity Date of any Lender under this Agreement, (A) at a fixed or determinable date, (B) at the option of any holder thereof, or (C) upon the occurrence of a condition not solely within the control and discretion of such person; or | ||
(ii) | convertible into any other shares or units described in (i) above; |
but excluding any Trust Units that may be redeemed by way of a distribution in specie of Royalty Units or other assets (excluding facilities, pipelines or other assets associated with oil and natural gas production) so long as the recipient thereof is or would thereupon become bound by the obligations of the Trust under the Subordination Agreement; | ||
(l) | Guarantees of such person in respect of the indebtedness for borrowed money of any other person; provided that any such indebtedness for borrowed money shall include obligations of the kind described in paragraphs (a) through (k) inclusive of this definition of Debt; |
(m) | to the extent permitted by GAAP, any particular indebtedness of such person if, upon or prior to the maturity thereof, there shall have been irrevocably deposited with the proper depositary in trust the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such indebtedness, and thereafter such funds and evidences of indebtedness or other security so deposited are not included in any computation of the assets of such person; | |
(n) | contingent obligations of such person in respect of court actions, suits or other proceedings which have not come to a final and conclusive judgment before a court of competent jurisdiction or such other person as may have jurisdiction in the premises and such person reasonably expects to be successful in the defense of such action, suit or other proceeding; | |
(o) | any lease or other arrangement relating to real or personal property of such person which would, in accordance with GAAP, not be accounted for as a Capital Lease of such person or as a Sale-Leaseback; and | |
(p) | deferred or future taxes of such person; |
(a) | with respect to an issue of Bankers’ Acceptances issued by a Schedule I Lender, the CDOR Rate on such day; and | |
(b) | with respect to an issue of Bankers’ Acceptances issued by a Schedule II Lender: |
11
(i) | which the Borrower has requested the Schedule II Lenders to purchase (and concurrently therewith has requested the Schedule I Lenders to purchase the Bankers’ Acceptances to be accepted by them as part of such issue of Bankers’ Acceptances), the lesser of the rate set out in paragraph (a) of this definition plus seven (7) bps and the arithmetic average of the rates on such day, as determined by the Agent, at or about 8:00 a.m. (Calgary time) on such day as being the discount rate (expressed as a rate per annum based on a year of three hundred and sixty-five (365) days) at which each Schedule II Reference Lender is offering at such time on such day for the purchase of Bankers’ Acceptances denominated in Canadian Dollars having a comparable face value and identical issue and maturity dates to the face value and issue and maturity date of the Bankers’ Acceptances proposed to be issued by the Borrower and accepted by the Schedule II Lenders on such day; and | ||
(ii) | which the Borrower has requested the Schedule II Lenders to purchase but has determined to market the Bankers’ Acceptances of the Schedule I Lenders issued as a part of such issue of Bankers’ Acceptances on its own, the arithmetic average of the discount rates (expressed as a rate per annum on the basis of a year of three hundred and sixty-five (365) days) at which the Bankers’ Acceptances of the Schedule I Lenders issued as a part of such issue of Bankers’ Acceptances were sold (the “Schedule I Average Cdn. Rate”) plus the lesser of (A) the difference between the Schedule I Average Cdn. Rate and the arithmetic average of the rates on such day, as determined by the Agent, at or about 8:00 a.m. (Calgary time) on such day as being the discount rate (expressed as a rate per annum based on a year of three hundred and sixty-five (365) days) at which each Schedule II Reference Lender is offering at such time on such day for the purchase of Bankers’ Acceptances denominated in Canadian Dollars having a comparable face value and identical issue and maturity dates to the face value and issue and maturity date of the Bankers’ Acceptances proposed to be issued by the Borrower and accepted by the Schedule II Lenders on such day and (B) seven (7) bps; |
(a) | any payment of the Intercompany Subordinated Debt; | |
(b) | any payment or other distribution of any kind or nature, such as under a royalty or net profits interest, whereby any production or revenues derived from the assets of the Borrower or any Subsidiary are paid or distributed to a person; | |
(c) | any declaration, order or payment of dividends or other capital distributions directly or indirectly to any holder of any shares, trust units, partnership units or other form of equity interest (“Securities”); | |
(d) | any redemption, retraction, purchase or other acquisition of Securities of the Borrower or any Subsidiary; | |
(e) | any payment of principal or other amounts in respect of indebtedness or obligations owed to a shareholder of the Borrower or an Affiliate of such shareholder; | |
(f) | any transfer of property by the Borrower or any Subsidiary for a consideration less than fair market value to a shareholder of the Borrower or to an Affiliate of the Borrower or such shareholder; or |
12
(g) | any loan, advance or other payment of any kind by the Borrower or any Subsidiary to a holder of Securities in such person or an Affiliate of such holder; |
13
14
(a) | in respect of each Lender, the proportion that such Lender’s Commitment bears to the Total Commitment; and | |
(b) | for the purpose of Section 11.11, in respect of each Lender and the Operating Lender, the proportion that such Lender’s Commitment (together with, in the case of Royal as Operating Lender, the Operating Amount), bears to the sum of the Total Commitment plus the Operating Amount; |
15
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Consolidated Senior Debt to EBITDA Ratio | ||||||||||||
>1.00:1.00 | >1.50:1.00 | >2.00:1.00 | >2.50:1.00 | |||||||||
Type of | and | and | and | and | ||||||||
Borrowing or Fee | <1.00:1.00 | <1.50:1.00 | <2.00:1.00 | <2.50:1.00 | <3.00:1.00 | >3.00:1.00 | ||||||
Cdn. Prime Loans
and U.S. Base Rate
Loans
|
REDACTED | REDACTED | REDACTED | REDACTED | REDACTED | REDACTED | ||||||
Libor Loans,
Bankers’
Acceptances and
Letters of Credit
|
REDACTED | REDACTED | REDACTED | REDACTED | REDACTED | REDACTED | ||||||
Standby Fee
|
REDACTED | REDACTED | REDACTED | REDACTED | REDACTED | REDACTED |
(a) | which is completed in the immediately preceding twelve months; | |
(b) | the cost of each such acquisition is in excess of REDACTED% of the Consolidated Tangible Assets of the Trust as shown on the most current financial statements of the Trust at the time of any such acquisition; and | |
(c) | is in respect of Voting Shares or other equity interests in any person or of any properties that the Borrower, the Trust and/or a Subsidiary continue to own at such time, |
(a) | the business, financial condition, operations, assets or properties of the Loan Parties taken as a whole; | |
(b) | the ability of the Loan Parties taken as a whole to repay the Borrowings or any other amount outstanding hereunder or under any guarantee thereof; or | |
(c) | the validity or enforceability of any material term of this Agreement or any other Loan Document; |
17
(a) | the Royalty Indenture; | |
(b) | the NPI Agreement; and | |
(c) | the Esprit Note Indenture; |
18
(a) | a sale or disposition of petroleum and natural gas properties (and related tangibles) resulting from any pooling, unit or farmout agreement entered into in the ordinary course of business and in |
19
accordance with sound industry practice when, in the reasonable judgment of such person, it is necessary or of advantage to do so in order to facilitate the orderly exploration, development or operation of such petroleum and natural gas properties; | ||
(b) | a sale or disposition in the ordinary course of business and in accordance with sound industry practice in Alberta of tangible personal property that is obsolete, no longer useful for its intended purpose or being replaced in the ordinary course of business; | |
(c) | a sale or disposition of current, in transit or stored production from petroleum and natural gas properties made in the ordinary course of business; | |
(d) | the abandonment, surrender or termination of any petroleum and natural gas rights in respect thereto in the ordinary course of business and in accordance with sound industry practice; | |
(e) | a non-prepaid forward sale of production from petroleum and natural gas properties made in the ordinary course of business and not for speculative purposes in order to hedge against price fluctuations; | |
(f) | a sale or disposition of Non-Recourse Assets by such person which are subject to a Security Interest in respect of Non-Recourse Debt; | |
(g) | a sale or disposition of any assets or properties classified as property, plant and equipment on the balance sheet of such person including a Sale-Leaseback and any Prepaid Obligations, where the proceeds of disposition are used to repay Borrowings and permanently reduce the Total Commitment by the amount repaid; | |
(h) | a contribution of money or other assets to the Xxxx Creek Remediation Trust or the Sable Offshore Energy Project Environmental Restoration Fund where the aggregate amount contributed thereto in any Fiscal Year does not exceed Cdn. $5,000,000; | |
(i) | a sale or disposition of marketable securities of an entity other than a Subsidiary; and | |
(j) | a sale or disposition of any assets or properties from one Loan Party to another Loan Party; |
(a) | Security Interests for taxes, assessments or governmental charges which are not due or delinquent, or the validity of which such person shall be contesting in good faith if such contest will involve no risk of loss of any material part of the property of such person taken as a whole and such person shall have made adequate provision therefor in accordance with GAAP; | |
(b) | the Security Interests of any judgment rendered, or claim filed, against such person which such person shall be contesting in good faith if such contest will involve no risk of loss of any material part of the property of such person taken as a whole and such person shall have made adequate provision therefor in accordance with GAAP; | |
(c) | Security Interests imposed or permitted by law such as carriers’ liens, builders’ liens, materialmens’ liens and other liens, privileges or other charges of a similar nature which relate to obligations not due or delinquent or if due or delinquent, any lien, privilege or charge which such person shall be contesting in good faith if such contest will involve no risk of loss of any material part of the property of such person taken as a whole; |
20
(d) | Security Interests arising in the ordinary course of and incidental to construction or current operations which have not been filed pursuant to law against such person or in respect of which no steps or proceedings to enforce such lien have been initiated or which relate to obligations which are not due or delinquent or if due or delinquent, any lien which such person shall be contesting in good faith if such contest will involve no risk of loss of any material part of the property of such person taken as a whole and such person shall have made adequate provision therefor in accordance with GAAP; | |
(e) | Security Interests incurred or created in the ordinary course of business and in accordance with sound petroleum and natural gas industry practice in Alberta in respect of the joint operation of petroleum and natural gas properties or related production or processing facilities as security in favour of any other person conducting the development or operation of the property to which such Security Interests relate, for such person’s portion of the costs and expenses of such development or operation provided that such costs or expenses are not due or delinquent or, if due or delinquent, any Security Interests which such person shall be contesting in good faith if such contest will involve no risk of loss of any material part of the property of such person taken as a whole and such person shall have made adequate provision therefor in accordance with GAAP; | |
(f) | lessor royalties (including crown or freehold lessor royalties), overriding royalty interests, net profit interests, reversionary interests and carried interests or other similar burdens on production (but for greater certainty not including the Royalty or the NPI) in respect of such person’s petroleum and natural gas properties that are entered into with or granted to arm’s length third parties in the ordinary course of business and in accordance with sound petroleum and natural gas industry practice in Alberta provided such interests or burdens are reflected in the Engineering Reports, the Internal Engineering Reports and any other data provided with respect to the Petroleum and Natural Gas Rights of the Borrower and the Designated Subsidiaries; | |
(g) | Security Interests for penalties arising under non-participation provisions of operating agreements in respect of such person’s petroleum and natural gas properties if such Security Interests do not materially detract from the value of any material part of the property of such person taken as a whole; | |
(h) | easements, rights-of-way, servitudes, zoning or other similar rights or restrictions in respect of land held by such person (including, without limitation, rights-of-way and servitudes for railways, sewers, drains, pipe lines, gas and water mains, electric light and power and telephone or telegraph or cable television conduits, poles, wires and cables) which, either alone or in the aggregate, do not materially detract from the value of such land or materially impair its use in the operation of the business of such person taken as a whole; | |
(i) | any lien or trust arising in connection with workers’ compensation, unemployment insurance, pension and employment laws or regulations; | |
(j) | security given by such person to a public utility or any municipality or governmental or other public authority when required by such public utility or municipality or other governmental authority in the ordinary course of the business of such person in connection with operations of such person if such security is not of general application against the property of such person such as floating charges and general security agreements and if such security does not, either alone or in the aggregate, materially impair its use in the conduct of the business of such person taken as a whole; |
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(k) | the right reserved to or vested in any governmental body by the terms of any lease, license, grant or permit or by any statutory or regulatory provision to terminate any such lease, license, grant or permit or to require annual or other periodic payments as a condition of the continuance thereof; | |
(l) | all reservations in the original grant from the Crown of any lands and premises or any interests therein and all statutory exceptions, qualifications and reservations in respect of title; | |
(m) | any right of first refusal in favour of any person granted in the ordinary course of business with respect to all or any of the oil and gas properties of such person; | |
(n) | any Security Interest the satisfaction of which has been provided for by deposit with the Agent or a court of competent jurisdiction of cash or a surety bond or other security satisfactory to the Agent in an amount sufficient to pay the liability in respect of such Security Interest in full; | |
(o) | Security Interests in respect of Non-Recourse Debt on the Non-Recourse Assets constructed, developed or acquired with the proceeds of the Non-Recourse Debt; | |
(p) | liens on cash or marketable securities of such person granted in connection with Swaps provided that (i) such Swaps do not, as a result thereof, result in a breach of Section 8.2(e) hereof; (ii) the obligations secured by such liens are not due and delinquent; and (iii) the fair market value of all such cash and marketable securities, together with the aggregate amount outstanding under any Purchase-Money Security Interests, Capital Leases, Sale-Leasebacks and Miscellaneous Encumbrances, is not at any time in excess of an amount equal to REDACTED % of Consolidated Tangible Assets of the Trust as shown on the most recent consolidated financial statements of the Trust provided to the Lenders hereunder, or the Equivalent Amount thereof in any other currency; | |
(q) | any Security Interest created pursuant to Section 4.9 of the Remediation Trust Maintenance Agreement as such Security Interest is in existence on the date hereof; | |
(r) | the Royalty, the Royalty Units and the Royalty Indenture provided that the right to receive the Royalty is at all times held by any one or more of the Trust and the Designated Subsidiaries, and provided further that if any such right is held by the Trust, the Trust’s rights and interest in such Royalty, Royalty Units and the Royalty Indenture are and remain fully postponed and subordinated to the Term Indebtedness, the Operating Indebtedness and the Swap Indebtedness as provided for in the Subordination Agreement; | |
(s) | the NPI and the NPI Agreement provided that the right to receive the NPI is at all times held by any one or more of the Trust and the Designated Subsidiaries, and provided further that, if any portion of the NPI is held by the Trust, the Trust’s interest in such NPI and the NPI Agreement are and remain fully postponed and subordinated to the Term Indebtedness, the Operating Indebtedness and the Swap Indebtedness as provided for in the Subordination Agreement; | |
(t) | any Security Interest granted to the Agent on behalf of the Lenders in respect of any cash cover as contemplated by Section 9.7; | |
(u) | any Security Interest from time to time disclosed by such person to the Agent and which is consented to by the Majority Lenders and the Operating Lender; | |
(v) | Purchase-Money Security Interests, Capital Leases and Sale-Leasebacks, provided that the aggregate amount outstanding thereunder and under any Miscellaneous Encumbrances, together with the fair market value of any cash and marketable securities covered by a lien pursuant to |
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subsection (p) of this definition, shall not at any time be greater than REDACTED % of Consolidated Tangible Assets of the Trust as shown on the most recent consolidated financial statements of the Trust provided to the Lenders hereunder, or the Equivalent Amount thereof in any other currency; and | ||
(w) | Miscellaneous Encumbrances, provided that the aggregate amount outstanding thereunder and under any Purchase-Money Security Interests, Capital Leases and Sale-Leasebacks, together with the fair market value of any cash and marketable securities covered by a lien pursuant to subsection (p) of this definition, shall not at any time be greater than REDACTED % of Consolidated Tangible Assets of the Trust as shown on the most recent consolidated financial statements of the Trust provided to the Lenders hereunder, or the Equivalent Amount thereof in any other currency; |
(a) | Financial Assistance provided to, or for the benefit of, a Loan Party; and | |
(b) | Financial Assistance (other than to, or for the benefit of, a Loan Party) in an aggregate amount not exceeding Cdn. $ REDACTED; |
(a) | Permitted Encumbrances; | |
(b) | title defects or irregularities which are of a minor nature and in the aggregate will not materially impair the use of such asset for the purposes for which it is held, or impair its saleability, or cause a disruption or reduction in the production or cash flow (if any) associated therewith; and | |
(c) | title defects which are disclosed to and expressly consented to by the Majority Lenders as constituting Permitted Title Defects hereunder; |
(a) | rights to explore for, drill for, produce, take, save or market Petroleum Substances from or allocated to its lands or lands with which the same have been pooled or unitized; | |
(b) | rights to a share of the production of Petroleum Substances from or allocated to its lands or lands with which the same have been pooled or unitized; | |
(c) | rights to a share of the proceeds of, or to receive payments calculated by reference to the quantity or value of, the production of Petroleum Substances from or allocated to its lands or lands with which the same have been pooled or unitized; |
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(d) | rights in lands or documents of title related thereto, including leases, subleases, licenses, permits, reservations, rights and privileges; and | |
(e) | rights to acquire any of the above rights described in paragraphs (a) through (d) of this definition, |
(a) | the sale (including any forward sale) or other transfer of any Petroleum Substances, whether in place or when produced for a period of time until, or of an amount such that, the purchaser will realize therefrom a specified amount of money (however determined, including by reference to interest rates or other factors which may not be fixed) or a specified amount of such product; and | |
(b) | any other interest in property of the character commonly referred to as a “production payment”; |
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(a) | if there is only one Schedule II Lender, such Schedule II Lender; or |
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(b) | if there is more than one Schedule II Lender, such Schedule II Lenders as are agreed to from time to time by the Borrower and the Agent, each acting reasonably; provided that there shall be no more than two Schedule II Reference Lenders at any one time; |
(a) | the maturity date thereof shall be later than the latest Maturity Date in effect at the time such obligation, liability or indebtedness is incurred, provided, however, that if the Trust, the Borrower or a Subsidiary enters into a subordinated bridge facility in connection with a material acquisition, the maturity date thereof may be prior to such latest Maturity Date so long as such Subordinated Debt matures and is repaid within six months of its incurrence; | |
(b) | subject to the proviso in paragraph (a) of this definition, no scheduled principal payments thereon or mandatory principal reductions thereunder are required to be made (except upon acceleration after default but subject always to the subordination agreement referred to below) until after the latest Maturity Date in effect at the time such obligation, liability or indebtedness is incurred; | |
(c) | if a default occurs in respect of such obligation, liability or indebtedness, the holders thereof are subject to a standstill period ending at least six months after the latest Maturity Date; and | |
(d) | the holders of such obligation, liability or indebtedness (or if applicable, their agent or trustee on their behalf) shall have entered into a subordination agreement with the Agent on terms and conditions satisfactory to the Majority Lenders, acting reasonably; |
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(a) | any corporation of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors are directly or indirectly beneficially owned or controlled by such person alone or in conjunction with its other Subsidiaries; or | |
(b) | any partnership, trust or other person of which at least a majority of the outstanding income interests or capital, beneficial or ownership interests (however designated) are directly or indirectly owned or controlled by such person alone or in conjunction with its other Subsidiaries; |
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(a) | the annual rate of interest announced from time to time by the Agent as being its reference rate then in effect for determining interest rates on U.S. Dollar denominated commercial loans made by the Agent in Canada; and | |
(b) | a rate of interest per three hundred sixty-five (365) day period equal to the Fed Funds Rate (equated, for these purposes, to a rate based on a year of 365 days rather than 360 days) plus one-half of one percent (1/2%); |
(a) | share capital of any class of any corporation or securities of any other person which carry voting rights to elect the board of directors or other body exercising similar functions under any circumstances, but shares or other securities which carry the right to so vote conditionally upon the happening of an event shall not be considered Voting Shares until the occurrence of such event; and | |
(b) | an interest in a general partnership, limited partnership, trust or similar person which entitles the holder of such interest to receive a share of the profits, or on dissolution or partition, of the assets, of such person. |
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REPRESENTATIONS AND WARRANTIES
(a) | Corporate Existence of the Borrower: the Borrower is a corporation duly incorporated, validly subsisting and in good standing with respect to the filing of annual returns under the laws of the Province of Alberta and is duly registered and qualified to carry on business as a corporation under the laws of each jurisdiction in which the nature of any business conducted by it or the character of any properties and assets owned or leased by it requires such registration and qualification except to the extent failure to register or qualify would not reasonably be expected to have a Material Adverse Effect; | |
(b) | Existence of Corporate and Partnership Parties: each Designated Subsidiary which is a corporation is a corporation duly incorporated, validly subsisting and in good standing with respect to the filing of annual returns under the laws of its jurisdiction of incorporation, and each Designated Subsidiary which is a partnership is a partnership duly organized and subsisting under the laws of its jurisdiction of creation, and each is duly registered and qualified as an extra-provincial corporation or partnership, as applicable, under the laws of each jurisdiction in which the nature of any business transacted by it or the character of any properties and assets owned or leased by it requires such registration and qualification, except to the extent failure to register or qualify would not reasonably be expected to have a Material Adverse Effect; |
(c) | Existence of the Trusts: the Trust is a “mutual fund trust” (within the meaning of the Income Tax Act (Canada)) and each of the Trust and each Designated Subsidiary which is a trust is a trust validly created and subsisting under the laws of the Province of Alberta and is fully qualified to carry on business as a trust under the laws of each jurisdiction in which the nature of any business conducted by it or the character of any properties and assets owned or leased by it requires such qualification except to the extent failure to qualify would not reasonably be expected to have a Material Adverse Effect. As at the Effective Date, Computershare Trust Company of Canada has been duly appointed as, and is the trustee of the Trust; | |
(d) | Power to Carry on Business: each of the Loan Parties has full corporate, partnership or trust power and capacity, as applicable, to own and lease its properties and assets and conduct its business as presently conducted; | |
(e) | Authority: the execution, delivery and performance by each Loan Party of each of the Loan Documents to which it is a party: |
(i) | have been duly authorized by all necessary corporate, partnership or trust action, as applicable; | ||
(ii) | are within its corporate, partnership or trust power and capacity, as applicable; | ||
(iii) | do not violate any provision of any law or regulation binding upon it, or of its articles of incorporation or by-laws (in respect of the Borrower and any corporate Designated Subsidiaries), or of its partnership agreement (in respect of any partnership Designated Subsidiaries) or of its trust indenture (in respect of the Trust or any trust Designated Subsidiaries); | ||
(iv) | do not result in the breach of or constitute a default or require any consent under, or result in the creation of any Security Interest upon any of its property or assets pursuant to any indenture or other agreement or instrument to which it is a party or by which it or its property may be bound or affected including, without limitation, the Material Contracts; and | ||
(v) | do not require any license, consent or approval of or advance notice to or advance filing with any governmental agency or regulatory authority; |
(f) | Execution and Delivery of Loan Documents: each Loan Document to which each Loan Party is a party has been duly executed and delivered by each such Loan Party; | |
(g) | Enforceability: each Loan Document to which each Loan Party is a party is a legal, valid and binding obligation of each such party, enforceable against it in accordance with its terms except as enforceability may be limited by general principles of equity and bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by moratorium laws from time to time in effect; | |
(h) | Consolidated Financial Condition of the Trust: the annual audited consolidated financial statements of the Trust for the Fiscal Year most recently ended: |
(i) | fairly present in all material respects the consolidated financial condition of the Trust as at the date thereof and the results of its operations for the period covered thereby; and |
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(ii) | have been prepared in accordance with Generally Accepted Accounting Principles consistently applied; |
and since such date, except to the extent the Borrower has otherwise advised the Agent in writing, there has been no material adverse change in the consolidated financial condition, operations or business of the Trust from that set forth in such financial statements as at such date which would reasonably be expected to have a Material Adverse Effect; | ||
(i) | Litigation: there are no suits or proceedings (including proceedings by or before any arbitrator, government commission, board, bureau or other administrative agency) pending or, to the knowledge of the Borrower, threatened against or affecting any Loan Party which would reasonably be expected to have a Material Adverse Effect; | |
(j) | Compliance with Laws and Contracts: each Loan Party is in compliance with all federal, provincial, state and local laws, statutes and regulations and all contracts, agreements and employee benefit plans except to the extent failure to so comply would not reasonably be expected to have a Material Adverse Effect; | |
(k) | Environmental Matters: each Loan Party and each Subsidiary has obtained all permits, licenses and other authorizations which are required under all applicable Environmental Laws except to the extent failure to have any such permit, license or authorization would not reasonably be expected to have a Material Adverse Effect; and each Loan Party and each Subsidiary is in compliance with all Environmental Laws and all terms and conditions of all such permits, licenses and authorizations, except to the extent failure to comply would not reasonably be expected to have a Material Adverse Effect; | |
(l) | Environmental Condition of Property: the properties and assets of each Loan Party and each Subsidiary: |
(i) | are not the subject of any outstanding orders from a governmental agency or regulatory authority or otherwise alleging violation of any Environmental Laws; and | ||
(ii) | comply, with respect to their use and condition, with all Environmental Laws and all terms and conditions of all permits, licenses and other authorizations, which are required under all Environmental Laws, except to the extent failure to comply would not reasonably be expected to have a Material Adverse Effect; |
(m) | Events of Default: no Default or Event of Default has occurred which is continuing; | |
(n) | Title to Assets: subject only to Permitted Title Defects, each Loan Party has good, valid and marketable title to all of its assets and properties and, except for Permitted Encumbrances, such assets and properties are not subject to any Security Interests; | |
(o) | Taxes: each Loan Party has filed all income tax returns which were required to be filed by it and has paid or made provision for payment of all Taxes which are due and payable by it, except for Taxes the payment of which is being contested by it in good faith and for which provision has been made for adequate reserves; | |
(p) | Oil and Gas Information: to the best of the knowledge of the Borrower after due enquiry, all Engineering Reports and Internal Engineering Reports and other related data provided by the Borrower to the Agent or the Lenders with respect to the Petroleum and Natural Gas Rights of the |
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Borrower and the Designated Subsidiaries are accurate as at the date prepared and fairly reflect the matters described therein; | ||
(q) | Accuracy of Information: all information, materials and documents, including environmental reports and data, prepared by the Borrower and delivered to the Agent were true, complete and accurate in all material respects as at their respective dates, except to the extent that any inaccuracies would not have a Material Adverse Effect; | |
(r) | Designated Subsidiaries: as at the Effective Date, the Subtrust, the Energy Partnership, the Heavy Oil Partnership, Stellar, the Crispin Partnership, the Xxxxxx Creek Entities, Esprit Exploration, Esprit Exchangeco, 1275708 Alberta, the Conoco Entities, 702 Subco and 702 Partnership are the only Designated Subsidiaries; | |
(s) | Designated Subsidiaries Asset Test: as at the Effective Date, the Consolidated Tangible Assets of the Loan Parties (determined on an unconsolidated basis and excluding inter-company items) is not less than 85% of the Consolidated Tangible Assets of the Trust; | |
(t) | Material Contracts: as at the Effective Date, there are no contracts or agreements between the Trust and the other Loan Parties (or any one or more of the other Loan Parties) other than those evidencing existing Intercompany Subordinated Debt and certain Material Contracts, which provide for or create any obligation of such Loan Party to make payments to the Trust by way of cash, distributions or the transfer of any of such Loan Party’s Petroleum and Natural Gas Rights, including, without limitation, any payments on account of indebtedness for borrowed money owed to the Trust, or which provide for or create any receivables payable to the Trust. As of the Effective Date, neither the Borrower nor any Designated Subsidiary is in default of any Material Contract; | |
(u) | Intercompany Subordinated Debt, Royalty Units, NPI and Esprit Notes: as at the Effective Date: the Trustee holds 100% of the Royalty Units; the Trust holds 100% of the NPI and all of the other Intercompany Subordinated Debt; and there are no Esprit Notes issued and outstanding; | |
(v) | Shares of Borrower: as at the Effective Date, the Trust is the legal and beneficial owner of at least 90.9% of the common shares of the Borrower, and the Manager is the legal and beneficial owner of no more than 9.1% of the common shares of the Borrower; | |
(w) | Capital of Borrower: as at the Effective Date, the Borrower’s issued capital consists only of common shares; and | |
(x) | Shares of Subsidiaries: as at the Effective Date: |
(i) | the Borrower is the legal and beneficial owner of all of the issued and outstanding shares of Stellar, 1268071 Alberta and 1275708 Alberta; | ||
(ii) | the Trust is the legal and beneficial owner of all of the ownership interests of the Subtrust, including any Subtrust Trust Units, and of all of the issued and outstanding shares of Esprit Exchangeco; | ||
(iii) | the Trust and Esprit Exchangeco are the legal and beneficial owners of all of the issued and outstanding shares of Esprit Exploration; |
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(iv) | Stellar is the general partner of each of the Energy Partnership and the Heavy Oil Partnership and is the managing partner of the Crispin Partnership; | ||
(v) | the Borrower and Stellar are the only partners in each of the Energy Partnership, the Heavy Oil Partnership and the Crispin Partnership; | ||
(vi) | 1268071 Alberta is the legal and beneficial owner of all of the issued and outstanding shares of 3174792 Nova Scotia; | ||
(vii) | 3174792 Nova Scotia is the legal and beneficial owner of all of the issued and outstanding shares of 3174793 Nova Scotia; | ||
(viii) | 3174792 Nova Scotia and 3174793 Nova Scotia are the only partners in the Xxxxxx Creek Partnership, and 3174793 Nova Scotia is the managing partner of the Xxxxxx Creek Partnership; | ||
(ix) | 1275708 Alberta is the legal and beneficial owner of all of the issued and outstanding shares of each Conoco Corporate Entity, and 1265707 Alberta ULC and 1265706 Alberta ULC are the only partners in the Conoco Partnership; and | ||
(x) | 0000000 Alberta is the legal and beneficial owner of all of the issued and outstanding shares of 702 Subco; and | ||
(xi) | the Borrower, 1265702 Alberta, 702 Subco, Energy Partnership, Crispin Partnership, Esprit Exploration and the Conoco Partnership are the only partners in the 702 Partnership. |
THE CREDIT FACILITY
(i) | Relying on each of the representations and warranties set out in Article 2 and subject to the terms and conditions of this Agreement, the Lenders, the Agent and the Borrower agree that, effective on the Effective Date, the Prior Agreement shall be amended in its entirety on the terms and conditions of this Agreement and that all indebtedness and liability of the Borrower to the Lenders and the Agent under the Prior Agreement including, without limitation, “Borrowings” (as defined under the Prior Agreement) and |
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accrued and unpaid interest and fees thereon and standby fees accrued thereunder, shall be construed as indebtedness and liability of the Borrower to the Lenders and the Agent under this Agreement. | |||
(ii) | The Borrower, the Agent and the Lenders acknowledge and agree that on the Effective Date, the Borrowings may not be outstanding in accordance with the Lender’s Proportion of each Lender and, in order to ensure that such Borrowings will be outstanding in accordance with the Lender’s Proportion of each Lender as soon as possible, agree as follows: |
(A) | to make such adjustments to all Cdn. Prime Loans and U.S. Base Rate Loans so that such Loans are outstanding in accordance with the Lender’s Proportion of each Lender; | ||
(B) | to allocate all new Borrowings in such manner and for such period of time as is necessary to ensure that Borrowings outstanding with the Lenders are outstanding in accordance with the Lender’s Proportion of each Lender as soon as reasonably possible; and | ||
(C) | until such time as the Borrowings are outstanding in accordance with the Lender’s Proportion of each Lender, the definition of Majority Lenders shall be determined based on Borrowings outstanding rather than on the Total Commitment; |
(b) | Obligations of each Lender: Relying on each of the representations and warranties set out in Article 2 and subject to the terms and conditions of this Agreement, each Lender hereby severally agrees to make Accommodations available to the Borrower up to the amount of its Commitment for the purposes set forth in Section 3.2, provided that at no time shall the Equivalent Amount in Canadian Dollars of the Borrowings outstanding hereunder exceed the Total Commitment. Accommodations shall be available from each Lender from and after the Effective Date until the earlier of the Maturity Date of such Lender and the day on which an Event of Default occurs, and shall be available by way of: |
(i) | Loans: the advance of Loans by such Lender and the delivery of the proceeds of such advance for the account of the Borrower through the Agent at the Agent’s Account for Payments; | ||
(ii) | Bankers’ Acceptances: either: |
(A) | the acceptance of Bankers’ Acceptances (or the making of a BA Equivalent Advance) by such Lender and the delivery of the discounted proceeds of sale received by such Lender (or the amount of the BA Equivalent Advance) (less the applicable fees payable by the Borrower to such Lender pursuant to Section 5.4) |
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in respect thereof for the account of the Borrower through the Agent at the Agent’s Account for Payments; or | |||
(B) | the acceptance and purchase of Bankers’ Acceptances (or the making of a BA Equivalent Advance) by such Lender if it is a Purchasing Lender and the delivery of the Discount Proceeds in respect of such Bankers’ Acceptances (or BA Equivalent Advance) (less the applicable fees payable by the Borrower to such Lender pursuant to Section 5.4) for the account of the Borrower through the Agent at the Agent’s Account for Payments; and |
(iii) | Letters of Credit: the issuance of Letters of Credit in Canadian Dollars or U.S. Dollars by the Issuing Lender on behalf of the Lenders or by the Lenders; provided that the aggregate of the Equivalent Amount in Canadian Dollars of all Letters of Credit outstanding hereunder shall not at any time exceed Cdn. $50,000,000. |
(c) | Several Obligations: No Lender shall be responsible for the Commitment of any other Lender. The failure of a Lender to make available its share of any Accommodation in accordance with this Agreement shall not release any other Lender from its obligations hereunder. | |
For greater certainty, no Lender shall have any obligation to make any Loans, accept Bankers’ Acceptances or make BA Equivalent Advances or issue Letters of Credit if, after giving effect thereto, Borrowings from such Lender would at any time exceed its Commitment. | ||
(d) | Nature of Credit Facility: Prior to the Maturity Date of each Lender, the credit facility provided hereunder is a revolving credit facility and the Borrower may increase or decrease Borrowings from such Lender by obtaining Loans, Bankers’ Acceptances and BA Equivalent Advances or Letters of Credit and by making repayments in respect thereof. | |
(e) | Ranking: All Term Indebtedness, Operating Indebtedness and Swap Indebtedness shall rank in right of payment in priority to the Intercompany Subordinated Debt, the Convertible Debt and the Subordinated Debt. |
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(a) | Agreement of the Target: prior to or concurrently with delivery of any notice to the Agent pursuant to Section 3.4 requesting one or more Accommodations the proceeds of which are to be utilized to finance such Takeover, the Borrower shall provide to the Agent evidence satisfactory to the Agent (acting reasonably) that the board of directors or like body of the Target has approved or recommended to security holders acceptance of the Takeover; or | |
(b) | No Conflict by Lenders: the following steps shall be followed: |
(i) | at least seven (7) Business Days prior to the delivery of any notice to the Agent pursuant to Section 3.4 requesting Accommodations intended to be utilized for such Takeover, the President, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer or the Treasurer of the Borrower shall advise the Agent (who shall promptly advise an appropriate officer of each Lender) of the particulars of such Takeover in sufficient detail to enable such Lender to determine whether it has a conflict of interest if Accommodations from such Lender are utilized by the Borrower for such Takeover; | ||
(ii) | within five (5) Business Days of being so advised, each Lender shall notify the Agent of such Lender’s determination, acting reasonably, as to whether such a conflict of interest exists (such determination to be made by such Lender in the exercise of its sole discretion having regard to such considerations as it deems appropriate), provided that in the event such Lender does not so notify the Agent within such five (5) Business Day period, such Lender shall be deemed to have notified the Agent that it has such a conflict of interest; and | ||
(iii) | the Agent shall promptly notify the President, the Chief Executive Officer, the Chief Operating Officer, the Chief Financial Officer or the Treasurer of the Borrower of each Lender’s determination or deemed determination; |
and in the event that any Lender has, or is deemed to have, such a conflict of interest, then upon the Agent so notifying the Borrower, such Lender shall have no obligation to provide Accommodations for such Takeover notwithstanding any other provision of this Agreement to the contrary; provided, however, that each other Lender (a “Takeover Lender”) which has no such conflict of interest shall have an obligation, up to the amount of its Commitment, to provide Accommodations for such Takeover, and any such Accommodations provided for such Takeover shall be provided by each Takeover Lender in accordance with the ratio that its Lender’s Proportion bears to the aggregate of the Lender’s Proportions of all the Takeover Lenders; and | ||
(c) | Takeover Loans: if Accommodations are utilized for the purposes of a Takeover (a “Takeover Loan”) and there are Lenders other than Takeover Lenders (the “Non-Takeover Lenders”), the Lender’s Proportion of each Non-Takeover Lender shall be temporarily adjusted in accordance with Section 3.3(b) and, as applicable, subsequent Borrowings shall be funded firstly by Non-Takeover Lenders and subsequent repayments shall be applied firstly to Takeover Lenders, in each case until such time as the Lender’s Proportion of each Takeover Lender and Non-Takeover Lender is equal to such Lender’s Proportion in effect immediately prior to the advance of the Takeover Loan. |
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(a) | Cdn. Prime Loans: by way of Cdn. Prime Loans from the Lenders in minimum aggregate amounts of Cdn. $10,000,000 and in multiples of Cdn. $1,000,000 thereafter upon same day prior written notice for amounts less than or equal to Cdn. $20,000,000 and upon one (1) Business Day prior written notice for amounts greater than Cdn. $20,000,000; |
(b) | U.S. Base Rate Loans: by way of U.S. Base Rate Loans from the Lenders in minimum aggregate amounts of U.S. $10,000,000 and in multiples of U.S. $1,000,000 thereafter upon same day prior written notice for amounts less than or equal to U.S. $20,000,000 and upon one (1) Business Day prior written notice for amounts greater than U.S. $20,000,000; |
(c) | Libor Loans: by way of Libor Loans from the Lenders in minimum aggregate amounts of U.S. $10,000,000 and multiples of U.S. $1,000,000 thereafter upon at least three (3) Business Days prior written notice; |
(d) | Bankers’ Acceptances: by way of Bankers’ Acceptances accepted by the Lenders in minimum aggregate amounts of at least Cdn. $10,000,000 and multiples of Cdn. $1,000,000 thereafter upon one (1) Business Day prior written notice; and |
(e) | Letters of Credit: by the way of the issue of Letters of Credit in Canadian Dollars or U.S. Dollars upon at least three (3) Business Days prior written notice; |
(a) | Acceptance of Bankers’ Acceptances: Subject to the terms and conditions of this Agreement, each Lender hereby agrees to accept its Lender’s Proportion of Bankers’ Acceptances issued by the Borrower pursuant to Sections 3.4, 3.12 and 3.13. The Borrower shall market all Bankers’ Acceptances accepted by the Lenders on its own (except for Old System Issuers which shall in all instances purchase the Bankers’ Acceptances accepted by them) unless it elects, pursuant to Section 3.6(h), to require the applicable Lenders referred to in Section 3.6(h) to purchase such Bankers’ Acceptances at the applicable Discount Rate and provide to the Agent for the account of the Borrower the Discount Proceeds less the applicable fees payable to the Borrower to such Lender pursuant to Section 5.4. Notwithstanding that the Borrower has not elected to have the Lenders purchase Bankers’ Acceptances issued by it, the Borrower may request that any Lender |
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quote for the purchase of Bankers’ Acceptances accepted by any Lender and any such Lender may or may not so quote; provided that in such circumstances nothing herein shall obligate any such Lender to purchase Bankers’ Acceptances or require the Borrower to sell Bankers’ Acceptances to any such Lender. Any Lender may at any time and from time to time hold, sell, rediscount or otherwise dispose of any or all Bankers’ Acceptances purchased by it. | ||
(b) | Delivery of Notice where Borrower is marketing its own Bankers’ Acceptances: If the Borrower has not elected to have the Lenders purchase Bankers’ Acceptances to be issued by it, the Borrower shall, at or prior to 10:00 a.m. (Calgary time) on the Drawdown Date, Conversion Date or Rollover Date relating to any Bankers’ Acceptances to be issued hereunder, deliver to the Agent at the Agent’s Branch of Account written notice with respect to such Bankers’ Acceptances in the form of Schedule B hereto. | |
(c) | Payment to Borrower: On the Drawdown Date, Conversion Date or Rollover Date relating to any issue of Bankers’ Acceptances: |
(i) | on any Drawdown Date, each Lender shall: |
(A) | if such Lender is not a Purchasing Lender, deliver the discounted proceeds of the sale of such Bankers’ Acceptances received by it (less any fees payable to such Lender in respect thereof pursuant to Section 5.4), for the account of the Borrower through the Agent at the Agent’s Account for Payments; and | ||
(B) | if such Lender is a Purchasing Lender, deliver the Discount Proceeds of the Bankers’ Acceptances purchased by it (less any fees payable to such Lender in respect thereof pursuant to Section 5.4) for the account of the Borrower through the Agent at the Agent’s Account for Payments; |
(ii) | on any Rollover Date relating to any Rollover of Bankers’ Acceptances, the Borrower shall be liable to each Lender for the principal amount of maturing Bankers’ Acceptances accepted by such Lender; in order to satisfy the continuing liability of the Borrower to each such Lender for the principal amount of the maturing Bankers’ Acceptances, each such Lender shall receive and retain for its own account the discounted proceeds of sale of such new Bankers’ Acceptances or the Discount Proceeds from the purchase by such Lender of such Bankers’ Acceptances, as applicable, and the Borrower shall on the maturity date of the maturing Bankers’ Acceptances pay to each such Lender, through the Agent at the Agent’s Account for Payments, an amount equal to the difference between the principal amount of the maturing Bankers’ Acceptances and the discounted proceeds of sale or the Discount Proceeds, as applicable, from the new Bankers’ Acceptances together with the fee to which each such Lender is entitled pursuant to Section 5.4; and | ||
(iii) | on any Conversion Date relating to Bankers’ Acceptances: |
(A) | in the case of a Conversion from a Cdn. Prime Loan into Bankers’ Acceptances, in order to satisfy the continuing liability of the Borrower to each Lender for the amount of the converted Borrowing, each such Lender shall receive for its own account the discounted proceeds of sale of the Bankers’ Acceptances or the Discount Proceeds from the purchase by such Lender of such Bankers’ Acceptances, as applicable, and the Borrower shall on the Conversion Date pay to each such Lender, through the Agent at the Agent’s Account for Payments, the difference between the principal amount of the converted Borrowing and the |
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discounted proceeds of sale or the Discount Proceeds, as applicable, from such Bankers’ Acceptances together with the fee to which each such Lender is entitled pursuant to Section 5.4; | |||
(B) | in the case of a Conversion from a Libor Loan or U.S. Base Rate Loan into a Bankers’ Acceptance, the Borrower shall be responsible for the payment to each Lender of the Libor Loan or U.S. Base Rate Loan being converted and may use the discounted proceeds of sale of such Bankers’ Acceptances or the Discount Proceeds from the purchase by such Lender of such Bankers’ Acceptances, as applicable, less any fees to which such Lender is entitled, to purchase U.S. Dollars in order to make such payment; and | ||
(C) | in the case of a Conversion from Bankers’ Acceptances to another type of Accommodation, in order to satisfy the continuing liability of the Borrower to each Lender for an amount equal to the face amount of such Bankers’ Acceptances, the Agent and each such Lender shall record the obligation of the Borrower to each such Lender as a Borrowing of the type into which the maturing Bankers’ Acceptance has been converted; provided that in the case of a conversion into U.S. Dollars, the Borrower shall be responsible for payment to such Lender of an amount in Canadian Dollars equal to the principal amount of the Bankers’ Acceptance being converted. |
(d) | Waiver of Presentment and Other Conditions: The Borrower waives presentment for payment and, except to the extent of the gross negligence or willful misconduct of the Lenders referred to in the Power of Attorney Terms – Bankers’ Acceptances set out in Schedule H, any other defence to payment of any amounts due to any Lender in respect of a Bankers’ Acceptance accepted and, if applicable, purchased by it pursuant to this Agreement which might exist solely by reason of such Bankers’ Acceptance being held, at the maturity thereof, by such Lender in its own right and the Borrower agrees not to claim any days of grace if such Lender as holder sues the Borrower on the Bankers’ Acceptance for payment of the amount payable by the Borrower thereunder. On the specified maturity date of a Bankers’ Acceptance, or such earlier date as may be required or permitted pursuant to the provisions of this Agreement, the Borrower shall pay the Agent on behalf of the Lender that has accepted such Bankers’ Acceptance the full face amount of such Bankers’ Acceptance or, if applicable, shall effect a Conversion or Rollover of such Bankers’ Acceptances and make such additional payments, if any, as are required pursuant to Section 3.6(c). |
(e) | Terms of Each Bankers’ Acceptance: Each Bankers’ Acceptance shall: |
(i) | have a maturity date which shall be on a Business Day; | ||
(ii) | subject to availability, have a Standard Term (excluding days of grace) or, with the consent of the Agent, such consent not to be unreasonably withheld, and subject to availability, have a term which is not a Standard Term; | ||
(iii) | be denominated in the amount of Cdn. $100,000 and whole multiples thereof; and | ||
(iv) | be in the standard form of each Lender; |
under this Agreement shall be issued in the form of a “depository xxxx” (as defined in the DBNA), deposited with the Canadian Depository for Securities Ltd. (“CDS”) and will be made payable to CDS & Co. In order to give effect to the foregoing, the Agent for the Lenders (other than the Old System Issuers) shall, subject to the approval of the Borrower and the Lenders (other than the Old System Issuers), establish and notify the Borrower and the Lenders (other than the Old System Issuers) of any additional procedures, consistent with the terms of this Agreement, as are reasonably necessary to accomplish such intention, including, without limitation: |
(A) | any instrument held by the Agent for the purposes of Bankers’ Acceptances shall have marked prominently and legibly on its face and within its text, at or before the time of issue, the words “This is a depository xxxx subject to the Depository Bills and Notes Act (Canada)”; | ||
(B) | any reference to the authentication of the Bankers’ Acceptance will be removed; and | ||
(C) | any reference to “bearer” will be removed and such Bankers’ Acceptance shall not be marked with any words prohibiting negotiation, transfer or assignment of it or of an interest in it. |
(f) | Power of Attorney: As a condition precedent to each Lender’s obligation to accept and, if applicable, purchase Bankers’ Acceptances hereunder, the Borrower agrees to the Power of Attorney Terms — Bankers’ Acceptances set out in Schedule H hereto. | |
(g) | Failure to Give Notice of Repayment: If the Borrower fails to give notice to the Agent at the Agent’s Branch of Account of the method of repayment of a Bankers’ Acceptance prior to the date of maturity of such Bankers’ Acceptance in accordance with the same period of notice required for the original acceptance of such Bankers’ Acceptance as set forth in Section 3.4, the face amount of such Bankers’ Acceptance shall be converted on its maturity to a Cdn. Prime Loan pursuant to Section 3.12. | |
(h) | Lenders to Purchase: The Borrower shall be entitled to elect to have: |
(i) | each and every Lender purchase all, but not less than all, of any Bankers’ Acceptances issued by the Borrower and accepted by each such Lender and forming a part of the same issue of Bankers’ Acceptances; or | ||
(ii) | each and every Schedule II Lender purchase all, but not less than all, of any Bankers’ Acceptances issued by the Borrower and accepted by each such Lender and forming a part of the same issue of Bankers’ Acceptances; |
in each case on any Drawdown Date, Conversion Date or Rollover Date by advising the applicable Lenders of such election in any written notice of Borrowing by way of Bankers’ Acceptances in the form of Schedule A or notice of Conversion of a Borrowing to Bankers’ Acceptances in the form of Schedule C or any notice of Rollover of Bankers’ Acceptances in the form of Schedule D. If the Borrower fails to advise the applicable Lenders of any such election in any such written notice, it shall be deemed not to have elected to have any of such Lenders purchase such Bankers’ Acceptances except in the case of Old System Issuers which shall purchase all Bankers’ Acceptances accepted by them. |
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(i) | BA Equivalent Advances: Notwithstanding the foregoing provisions of this Section 3.6, a Non-Acceptance Lender shall, in lieu of accepting Bankers’ Acceptances, make a BA Equivalent Advance. The amount of each BA Equivalent Advance shall be equal to the Discount Proceeds which would be realized from a hypothetical sale of those Bankers’ Acceptances which, but for this Section 3.6(i), such Lender would otherwise be required to accept as part of such an Accommodation by way of Bankers’ Acceptances. To determine the amount of such Discount Proceeds, the hypothetical sale shall be deemed to take place at the Non-Acceptance Discount Rate. Any BA Equivalent Advance shall be made on the relevant Drawdown Date, Conversion Date or Rollover Date, as the case may be and shall remain outstanding for the term of the Bankers’ Acceptances issued concurrently therewith. Concurrently with the making of a BA Equivalent Advance, a Non-Acceptance Lender shall be entitled to deduct therefrom an amount equal to the acceptance fee which, but for this Section 3.6(i), such Lender would otherwise be entitled to receive as part of such issue of Bankers’ Acceptances. The BA Equivalent Advance shall accrue interest at a rate per annum equal to the Non-Acceptance Discount Rate for such Bankers’ Acceptance for the term of such BA Equivalent Advance. Upon the maturity date for such Bankers’ Acceptances, the Borrower shall pay to each Non-Acceptance Lender, in satisfaction of the BA Equivalent Advance and interest accrued thereon, an amount equal to the face amount of the Bankers’ Acceptance which, but for this Section 3.6(i), such Lender would otherwise have been required to accept as part of such Accommodation by way of Bankers’ Acceptance, failing which such amount shall be converted to a Cdn. Prime Loan. | |
All BA Equivalent Advances made by a Non-Acceptance Lender shall, if requested by such Lender, be evidenced by promissory notes of the Borrower in form and substance satisfactory to the Borrower and such Lender, each acting reasonably. | ||
All references herein to “Bankers’ Acceptances” shall, unless otherwise expressly provided herein or unless the context otherwise requires, be deemed to include BA Equivalent Advances made by a Non-Acceptance Lender as part of an Accommodation by way of Bankers’ Acceptances. |
(a) | Advice to the Lenders: The Agent, promptly following receipt of a notice of Borrowing by way of Bankers’ Acceptance in the form of Schedule A or a notice of Conversion of a Borrowing to a Bankers’ Acceptance in the form of Schedule C or a notice of a Rollover of a Bankers’ Acceptance in the form of Schedule D, shall: |
(i) | advise the Borrower of the allocation of Bankers’ Acceptances and, if applicable, BA Equivalent Advances to each Lender such that the aggregate amount of Bankers’ Acceptances required to be accepted or BA Equivalent Advances required to be made by such Lender hereunder is in a whole multiple of Cdn. $100,000; or | ||
(ii) | if the Borrower has elected to have the Purchasing Lenders purchase such Bankers’ Acceptances pursuant to Section 3.6(h), advise each Purchasing Lender of the face amount of each Bankers’ Acceptance to be purchased by it and the term thereof which term shall be identical for all Purchasing Lenders and for all Lenders who are not Purchasing Lenders. By no later than 8:30 a.m. (Calgary time), on each Drawdown Date, Conversion Date or Rollover Date on which the Purchasing Lenders are required to purchase Bankers’ Acceptances hereunder, the Borrower, each Schedule I Reference Lender (in the case of Bankers’ Acceptances which do not have a Standard Term) and each Schedule II Reference Lender, as applicable, shall notify the Agent of the applicable rate (as contemplated in the definition of Discount Rate) to be used by the Agent in the |
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calculation of the Discount Rate in respect of the issuance and purchase of such Bankers’ Acceptances by Schedule I Lenders and Schedule II Lenders, as applicable. |
(b) | Bankers’ Acceptances Not Being Purchased: If the Borrower has not elected to have the Lenders purchase Bankers’ Acceptances issued by it hereunder, the Agent, as soon as practicable following receipt of a notice of Borrowing by way of Bankers’ Acceptance in the form of Schedule B, shall provide either written or telephone advice to each applicable Lender on or before 10:00 a.m. (Calgary time) of the amount of each issue of Bankers’ Acceptances to be accepted by it or BA Equivalent Advance to be made by it, the face amount of each Bankers’ Acceptance, the discounted proceeds of sale deliverable in respect thereof or the amount of the BA Equivalent Advance, the person to whom the Bankers’ Acceptances have been sold and from whom the discounted proceeds of sale in respect thereof should be received, and the term thereof, which term shall be identical for all Lenders. Such advice, if provided by telephone, shall be confirmed in writing at or prior to 2:30 p.m. (Calgary time) on the applicable Drawdown Date, Conversion Date or Rollover Date by delivery to each applicable Lender of a written confirmation with respect to such Bankers’ Acceptances. | |
(c) | Bankers’ Acceptances Being Purchased: If the Borrower has elected to have the Purchasing Lenders purchase Bankers’ Acceptances issued by it pursuant to Section 3.6(h), then on or prior to 9:00 a.m. (Calgary time) on the Drawdown Date, Conversion Date or Rollover Date relating to all Bankers’ Acceptances to be purchased by the Purchasing Lenders on such date, the Agent shall provide either written or telephone advice to the Borrower and each Purchasing Lender confirming the particulars with respect to such Bankers’ Acceptances and related BA Equivalent Advances. Such advice, if provided by telephone, shall be confirmed in writing on or prior to 2:30 p.m. (Calgary time) on such Drawdown Date, Conversion Date or Rollover Date by delivery to the Borrower and each Purchasing Lender of a written confirmation with respect to such Bankers’ Acceptances. | |
(d) | Completion of Bankers’ Acceptance When Not Being Purchased: Upon receipt of the written or telephone advice pursuant to Section 3.7(b), each applicable Lender shall complete and sign Bankers’ Acceptances on behalf of the Borrower in accordance with the Power of Attorney Terms — Bankers’ Acceptances in the form of Schedule H and the particulars advised by the Agent. Such Lenders shall then deliver such Bankers’ Acceptances to the person designated to receive such Bankers’ Acceptances upon receipt by such Lender of the discounted proceeds of sale payable in respect thereof, in accordance with the particulars so advised by the Agent. | |
(e) | Completion of Bankers’ Acceptance When Being Purchased: Upon receipt of such written or telephone advice pursuant to Section 3.7(c), each Purchasing Lender shall complete and sign Bankers’ Acceptances on behalf of the Borrower in accordance with the Power of Attorney Terms — Bankers’ Acceptances in the form of Schedule H and the particulars advised by the Agent. |
(a) | Issuance: The Borrower may give the Agent a notice requesting that a Letter of Credit be issued by each Lender in accordance with Section 3.4(e). In the absence of an election to the contrary by the Borrower, all Letters of Credit shall be issued by the Issuing Lender pursuant to Section 3.9. If the Borrower elects to have a Letter of Credit issued on a pro-rata basis, each Lender shall be required to issue a Letter of Credit for their respective Lender’s Proportion of all such Letters of Credit to be issued on the same date in favour of the same beneficiary (each such issue of Letters of Credit being referred to in this Section 3.8 as an “Issuance”). In addition, it shall be a term of each Letter of Credit forming part of the same Issuance that: |
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(i) | any drawing under such Letter of Credit shall be made concurrently with drawings under all other Letters of Credit forming part of such Issuance; | ||
(ii) | each such drawing shall be made pro rata with drawings under such other Letters of Credit forming part of such Issuance, on the basis of the Lender’s Proportion of each Lender; and | ||
(iii) | each such drawing shall be conditional upon the beneficiary of such Letters of Credit providing a certificate as to the matters referred to in Section 3.8(a)(i) and 3.8(a)(ii). |
(b) | Documentation: Letters of Credit issued hereunder shall be in a form satisfactory to each Lender acting reasonably and in accordance with its usual and customary practices and shall, in all cases with respect to letters of credit, be issued subject to Uniform Customs & Practice for Documentary Credits, International Chamber of Commerce, Publication No. 500 (or any replacement thereof) and shall, in all cases with respect to letters of guarantee, be issued subject to Uniform Customs & Practice of Demand Guarantees, International Chamber of Commerce, Publication No. 458 (or any replacement thereof). No Lender shall have any obligation to issue a Letter of Credit as part of an Issuance until the Borrower has executed and delivered to the Agent a duly completed Letter of Credit application substantially in the form of Schedule I and has executed and delivered to each Lender such additional ancillary documents, including applications and indemnities, as such Lender generally requires for like transactions and which are consistent with the provisions hereof. | |
(c) | Expiry: Unless the Lenders otherwise agree, each Letter of Credit forming a part of the same Issuance shall expire not later than the earlier of one (1) year from the date of issue and the then earliest Maturity Date. | |
(d) | Payment: All payments made by the Lenders to any person pursuant to any Letters of Credit shall, unless the Borrower reimburses the Lenders through the Agent at the Agent’s Account for Payments for such payment on or before the date it is made, be deemed as and from the date of such payment to be an advance to the Borrower of a Cdn. Prime Loan (for any such payments made in Cdn. Dollars) or a U.S. Base Rate Loan (for any such payments made in U.S. Dollars), with the proceeds of such advance being applied against the Borrower’s obligations to reimburse the Lenders for payment made under the Letters of Credit, and the provisions hereof relating to such Cdn. Prime Loans or U.S. Base Rate Loans, as applicable (including interest to be calculated thereon) shall apply thereto. Each Lender shall forthwith advise the Agent of any demand by the beneficiary of a Letter of Credit for payment by such Lender under such Letter of Credit and of any payment made by it on such Letter of Credit to the beneficiary thereof. In determining whether to pay under a Letter of Credit, a Lender shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit. | |
(e) | Renewal: At or before 10:00 a.m. (Calgary time) at least three (3) Business Days prior to the date of expiry of the Letters of Credit forming part of the same Issuance, the Borrower may elect to renew such Letters of Credit by selecting a new expiry date for the Letters of Credit being renewed, which shall commence on the expiry date of the Letters of Credit being renewed. Renewals of any such Letters of Credit may only be effected by the Lenders extending the expiry date of the existing Letters of Credit and shall be done either by the issuance of a new Letter of Credit containing the new expiry date or by an amendment to the existing one, and, in either case, with or without a reduction in the face amount thereof. Any Issuance to a new beneficiary, any increase in the face amount of the Letters of Credit forming a part of the same Issuance or any |
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other change in the terms thereof shall be considered to be a new Borrowing and may only be effected by the Borrower delivering a drawdown notice pursuant to Section 3.4(e). Fees in respect of any renewed or extended Letters of Credit shall be payable pursuant to Section 5.5 and shall be computed for the period of renewal or extension. |
(a) | Issuance: If the Borrower does not elect to have Letters of Credit issued by the Lenders on a pro rata basis in accordance with Section 3.8, the Issuing Lender, on behalf of the Lenders, subject to the terms and conditions hereof and in reliance on the agreements of the Lenders set forth in Section 3.9(b), agrees to issue Letters of Credit for the account of the Borrower from time to time on any Business Day. No Letter of Credit shall have an expiry date other than as provided for in Section 3.8(c). Letters of Credit issued hereunder shall be in a form satisfactory to the Issuing Lender, acting reasonably and in accordance with its usual and customary practices and shall, in all cases with respect to letters of credit, be issued subject to Uniform Customs & Practice for Documentary Credits, International Chamber of Commerce, Publication No. 500 (or any replacement thereof) and shall, in all cases with respect to letters of guarantee, be issued subject to Uniform Customs & Practice of Demand Guarantees, International Chamber of Commerce, Publication No. 458 (or any replacement thereof). A Letter of Credit may not be issued by the Issuing Lender if the Issuing Lender is made aware that any Lender would be prohibited, if it were issuing such Letter of Credit, from issuing such Letter of Credit by any applicable law, regulation, treaty, official directive or regulatory requirement now or hereafter in effect (whether or not having the force of law). | |
(b) | Letter of Credit Participations: The Issuing Lender irrevocably grants, and, in order to induce the Issuing Lender to issue its Letters of Credit hereunder, each Lender irrevocably accepts and hereby purchases from the Issuing Lender on the terms and conditions hereinafter stated, for its own account and risk, an undivided interest (equal to the Lender’s Proportion of such Lender) in the Issuing Lender’s obligations and rights under each Letter of Credit issued by the Issuing Lender pursuant to this Section 3.9 and the amount of each draft paid by the Issuing Lender thereunder. Each Lender unconditionally and irrevocably agrees with the Issuing Lender that, on or before the close of business of the Issuing Lender on each day on which a draft is paid under a Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower in accordance with the terms of this Agreement, including, without limitation, pursuant to Section 3.9(h) (a “Participation Date”), such Lender will pay to the Agent for the account of the Issuing Lender at the Agent’s Branch of Account the Lender’s Proportion of such Lender of any such unpaid amount. The Issuing Lender shall notify the Agent who shall notify each Lender of the occurrence of a Participation Date and the amount payable by such Lender to the Agent based on the Lender’s Proportion of such Lender. Any such notice may be oral if promptly confirmed in writing (including telecopy or electronic mail). If any Lender fails to make any such payment on the day on which such Lender receives notice as provided above, then interest shall accrue on such Lender’s obligation to make such payment during the period from such day to the day such Lender makes such payment (or, if earlier, the date on which the Borrower reimburses the Issuing Lender as required pursuant to Section 3.9(h)), at a rate determined by the Agent (such rate to be conclusive and binding on such Lender or the Borrower as the case may be) in accordance with the Agent’s usual banking practice for similar advances to financial institutions of like standing to such Lender. | |
(c) | Repayment of Lenders: Upon and only upon receipt by the Issuing Lender of funds from the Borrower in full or partial reimbursement of any draft paid under a Letter of Credit with respect to which any Lender has theretofor paid the Agent for the account of the Issuing Lender in full for |
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such Lender’s participation pursuant to Section 3.9(b) and in full or partial payment of interest on such draft paid under a Letter of Credit, the Issuing Lender will pay to the Agent for the account of such Lender, in the same funds as those received by the Issuing Lender, or net against any then due obligation of such Lender under Section 3.9(b) to make any payment to the Issuing Lender, the Lender’s Proportion of such Lender of such funds. |
(d) | Role of the Issuing Lender: The Issuing Lender will exercise and give the same care and attention to each Letter of Credit issued by it pursuant to this Section 3.9 as it gives to its other letters of credit and similar obligations, and the Issuing Lender’s sole liability to the Lenders shall be to promptly return to the Agent for the account of each such Lender, such Lender’s Lender’s Proportion of any payments made to the Issuing Lender by the Borrower pursuant to Section 3.9(b) where the Borrower has made a payment to the Issuing Lender pursuant to Section 3.9(c). Each Lender agrees that, in paying any drawing under a Letter of Credit, the Issuing Lender shall not have any responsibility to obtain any document (other than as expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of any person delivering any such document. Neither the Issuing Lender nor any of its representatives, officers, employees or agents shall be liable to any Lender for: |
(i) | any action taken or omitted to be taken in connection herewith at the request or with the approval of the Majority Lenders; | ||
(ii) | any action taken or omitted to be taken in connection with any Letter of Credit in the absence of gross negligence or willful misconduct; or | ||
(iii) | the execution, effectiveness, genuineness, validity, or enforceability of any Letter of Credit, or any other document contemplated thereby. |
The Issuing Lender shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties. | ||
(e) | Each Lender’s Obligations Absolute: Each Lender acknowledges that its obligations to the Issuing Lender under this Section 3.9, including the obligation to purchase and fund a participation in the obligations and rights of the Issuing Lender under each Letter of Credit and any drafts paid by it for which it has not been fully reimbursed by the Borrower, are absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation: |
(i) | the occurrence and continuance of any Default or Event of Default; | ||
(ii) | any failure or inability of any other Lender to purchase or fund such a participation hereunder; or | ||
(iii) | any other failure by any other Lender to fulfill its obligations hereunder. |
Each payment by a Lender to the Issuing Lender shall be made, without any offset, compensation, abatement, withholding or reduction whatsoever. | ||
(f) | Reinstatement and Survival: Notwithstanding anything herein to the contrary, if the Issuing Lender is required at any time whether before or after any Maturity Date to make any payment |
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under a Letter of Credit, each Lender shall pay over to the Agent in accordance with the provisions of this Section 3.9 and for the account of the Issuing Lender, the amount of the Lender’s Proportion of such Lender of such amount. If the Issuing Lender is required at any time to return to the Borrower or to a trustee, receiver, liquidator, custodian or other similar official any portion of the payments made by or on behalf of the Borrower to the Issuing Lender in reimbursement of the Borrower’s obligations in respect of such Letter of Credit and interest thereon, each Lender shall, on demand of the Issuing Lender forthwith pay over to the Agent for the account of the Issuing Lender the Lender’s Proportion of such Lender of such amount, plus interest thereon from the day such demand is made to the day such amount is returned by such Lender to the Issuing Lender at a rate determined by the Agent (such rate to be conclusive and binding on such Lender or the Borrower as the case may be) in accordance with the Agent’s usual banking practice for similar advances to financial institutions of like standing to such Lender. |
(g) | Procedure for Issuance and Renewal of Letters of Credit: |
(i) | The Borrower may request that the Issuing Lender issue a Letter of Credit pursuant to Section 3.9 by delivering a notice to the Agent pursuant to Section 3.4(e) and by delivering to the Issuing Lender at the Issuing Lender’s Branch of Account a letter of credit application and indemnity in the Issuing Lender’s then customary form (as such form may be modified from time to time, the “Letter of Credit Application”), completed to the satisfaction of the Issuing Lender together with the proposed form of such Letter of Credit (which shall comply with the applicable requirements set forth herein) and such other certificates, documents and other papers and information as the Issuing Lender may reasonably request; provided that in the event of a conflict between this Agreement and the Letter of Credit Application, this Agreement shall govern with respect to such conflict. | ||
(ii) | Within three (3) Business Days following the date on which the Issuing Lender shall have received the notice pursuant to Section 3.4(e) and the Issuing Lender shall have received the Letter of Credit Application including the proposed form of the Letter of Credit and such additional certificates, documents and other papers and information as the Issuing Lender may have reasonably requested in satisfaction of all conditions to the issuance thereof, the Issuing Lender shall, provided all other conditions precedent contained in this Agreement have been complied with, issue such Letter of Credit. | ||
(iii) | The Borrower may request the extension or renewal of a Letter of Credit issued under this Section 3.9 by giving written notice to the Issuing Lender at least three (3) Business Days prior to the then current expiry date of such Letter of Credit (provided that the Issuing Lender may accommodate notices on shorter notice in its sole discretion). If all conditions precedent contained in this Agreement (including the payment of the necessary fees under Section 5.6) shall have been fulfilled as required thereby and subject to the other terms of this Agreement, the Issuing Lender shall promptly issue such extension or renewal. |
(h) | Reimbursement of the Agent: | |
In the event that any drawing shall be made under any Letter of Credit issued under this Section 3.9: |
(i) | the Issuing Lender shall promptly notify the Agent who shall promptly notify the Borrower of such payment and of the amount thereof; |
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(ii) | the Borrower shall pay to the Issuing Lender the amount of any such drawing on the date of such drawing, failing which the payment by the Issuing Lender of such drawing shall constitute the making of a Cdn. Prime Loan or U.S. Base Rate Loan, as applicable, to the Borrower by each Lender according to the Lender’s Proportion of such Lender (without limiting each Lender’s obligations to the Issuing Lender, including under Section 3.9(b)); | ||
(iii) | the Agent shall notify each Lender by telecopier or by telephone (confirmed by telecopier) of such drawing; and | ||
(iv) | immediately upon receipt of such notice, each Lender shall make such Lender’s Lender’s Proportion of such amount in Cdn. Dollars or U.S. Dollars, as applicable, available to the Agent for the account of the Issuing Lender by wire transfer of immediately available funds to the Agent’s Account for Payments for the account of the Issuing Lender. |
(i) | Designation and Termination of Issuing Lender: |
(i) | The Borrower shall be entitled from time to time to terminate an Issuing Lender as an Issuing Lender by providing a written notice of such termination to the Agent and the Issuing Lender and, concurrently with such termination or if an Issuing Lender provides a notice to the Borrower pursuant to Section 3.9(i)(iii), designate another Lender as an Issuing Lender by providing a written notice to the Agent designating such Lender to be the Issuing Lender and which notice shall include the consent to such designation of such Lender; provided that at any one time there shall be no more than one Issuing Lender which is eligible to issue Letters of Credit under this Section 3.9. | ||
(ii) | In the event that the Borrower exercises its right to terminate an Issuing Lender as an Issuing Lender pursuant to Section 3.9(i)(i) and there are Letters of Credit outstanding which were issued by such Issuing Lender, the Borrower shall use its reasonable commercial efforts to replace all such Letters of Credit with Letters of Credit issued by the new Issuing Lender and, upon such replacement, such Issuing Lender shall cease to be an Issuing Lender. | ||
(iii) | In the event that an Issuing Lender has notified the Borrower in writing that, pursuant to Section 10.3, it is no longer able to issue Letters of Credit on behalf of the Lenders, then such Issuing Lender shall not be required to issue additional Letters of Credit and, in any such case and if the Issuing Lender requests in writing, the Borrower shall use its reasonable commercial efforts to replace all Letters of Credit issued by such Issuing Lender as soon as practicable with Letters of Credit issued by the Issuing Lender designated by the Borrower to replace such Issuing Lender pursuant to Section 3.9(i)(i). | ||
(iv) | Where, pursuant to Section 3.9(i)(i) the Borrower terminates an Issuing Lender as an Issuing Lender or pursuant to Section 10.3 an Issuing Lender provides a notice to the Borrower that it is no longer able to issue Letters of Credit on behalf of the Lenders, such Issuing Lender shall remain an Issuing Lender under all Letters of Credit issued by it until all such Letters of Credit have been either replaced, expired or been presented for payment and all payments required to be made to such Issuing Lender by the Borrower and/or the other Lenders pursuant to this Section 3.9 as a result of any payment made under any Letter of Credit issued by such Issuing Lender have been made. |
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(a) | Pro-Rata Borrowings: Subject to Section 3.1, Section 3.3, Section 3.9 and Section 3.11(b), each Accommodation and each basis of Borrowing shall be made available by each Lender and all repayments and reductions in respect thereof shall be made and applied in a manner so that the proportion of Borrowings outstanding to such Lender will, to the extent possible, thereafter be in the same proportion as such Lender’s Proportion. The Agent is authorized by the Borrower and each Lender to determine, in its sole and unfettered discretion, the amount of Borrowings and each basis of Borrowing to be made available by each Lender and the application of repayments and reductions of Borrowings to give effect to the provisions of this Section 3.11(a), and Section 6.2; provided that no Lender shall, as a result of any such determination, have Borrowings outstanding in an amount which is in excess of the amount of its Commitment. | |
(b) | Agent’s Discretion on Allocation: In the event it is not practicable to: |
(i) | allocate each basis of Borrowing in accordance with Section 3.11(a) by reason of the occurrence of circumstances described in Section 10.2, Section 10.3 or Section 10.4; or | ||
(ii) | allocate Bankers’ Acceptances and BA Equivalent Advances to each Lender in accordance with Section 3.11(a) such that the aggregate amount of Bankers’ Acceptances required to be accepted or purchased or BA Equivalent Advances required to be made by such Lender hereunder is in a whole multiple of Cdn. $100,000; |
the Agent is authorized by the Borrower and each Lender to make such allocation as the Agent determines in its sole and unfettered discretion may be equitable in the circumstances but no Lender shall, as a result of any such allocation, have Borrowings outstanding in an amount which is in excess of the amount of its Commitment. | ||
(c) | Further Assurances by Borrower: To the extent reasonably possible, the Borrower and each Lender agrees to be bound by and to do all things necessary or appropriate to give effect to the provisions of this Section 3.11. |
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(a) | Request for Extension: The Borrower may, from time to time, request an extension of the Maturity Date of each Lender who has not yet refused to extend the Maturity Date (or been deemed to have refused to extend the Maturity Date) pursuant to any prior Request for Extension (each, a “Requested Lender”) by sending to the Agent the Request for Extension, not later than the sixtieth day and not earlier than the ninetieth day prior to any anniversary of the date hereof (each, an “Anniversary Date”) and the Agent shall forthwith, and in any event within four (4) Business Days, notify each Requested Lender of such request. In this Section 3.15, the Maturity Date of the Requested Lenders is referred to as the “Subject Maturity Date”. Each Requested Lender shall advise the Agent as to whether it agrees to extend the Subject Maturity Date in accordance with any such Request for Extension within thirty (30) days of the delivery by the Borrower to the Agent of a Request for Extension, provided that in the event such Requested Lender does not so advise the Agent within such thirty (30) day period, such Requested Lender shall be deemed to have advised the Agent that it is not prepared to extend the Subject Maturity Date. Within four (4) Business Days of the Agent receiving from each Requested Lender its |
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decision with respect to extending the Subject Maturity Date, the Agent shall, subject to Section 3.15(c), advise the Borrower of each Requested Lender’s decision. | ||
(b) | Repayment or Replacement by Borrower: Subject to Section 3.15(c), if a Requested Lender does not agree to extend the Subject Maturity Date applicable to it (such Lender being a “Non-Agreeing Lender” and any Requested Lender agreeing to extend the Subject Maturity Date applicable to it being an “Agreeing Lender”) the Borrower may, but is not obligated, to: |
(i) | so long as there exists no Event of Default and subject to Section 10.5, repay all Borrowings and other amounts owing hereunder to any Non-Agreeing Lender on or prior to the Subject Maturity Date and upon such payment any Non-Agreeing Lender shall cease to be a Lender hereunder and each such Non-Agreeing Lender’s Commitment shall be terminated and the Total Commitment reduced accordingly; or | ||
(ii) | arrange for replacement lender(s) (which may be one or more of the Lenders) to replace each Non-Agreeing Lender’s Borrowings and its Commitment; provided that any such replacement lender (if it is not a Lender) shall have been approved by the Agent (such approval not to be unreasonably withheld) and shall be novated into the Loan Documents in the place and stead of the Non-Agreeing Lender by execution of all necessary documentation on or prior to the Subject Maturity Date and in respect of which the Lenders shall do all things and make all such adjustments as are reasonably necessary to give effect to any such replacement. |
(c) | Non-Extension: The Subject Maturity Date shall not be extended in accordance with Section 3.15(a) if Requested Lenders holding less than sixty-six and two-thirds percent (66 2/3%) of the Commitments of all Requested Lenders agree to extend the Subject Maturity Date pursuant to any Request for Extension. In such case, the Subject Maturity Date for all Requested Lenders shall not be extended. | |
(d) | Extension for all Requested Lenders: If all Requested Lenders agree to extend the Subject Maturity Date pursuant to a Request for Extension, then the Subject Maturity Date shall be extended for the period requested by the Borrower, provided that following the granting of any such extension, the Maturity Date of the Agreeing Lenders shall not be more than three years from the applicable Anniversary Date. | |
(e) | Partial Extension: If, with respect to any Request for Extension, the provisions of Section 3.15(c) or 3.15(d) are not applicable and there are Non-Agreeing Lenders under Section 3.15(b), then: |
(i) | the Subject Maturity Date for those Requested Lenders agreeing to extend the Subject Maturity Date shall be extended for the period requested by the Borrower, provided that following the granting of any such extension, the Maturity Date of the Agreeing Lenders and any replacement lenders under Section 3.15(b)(ii) shall not be more than three years from the applicable Anniversary Date; and | ||
(ii) | for those Non-Agreeing Lenders, the Subject Maturity Date of all such Lenders shall not be extended. |
(f) | Maturity Date: Any Subject Maturity Date which shall be extended pursuant to Sections 3.15(d) or 3.15(e), shall constitute the Maturity Date for the applicable Agreeing Lender for all purposes of this Agreement after such extension. |
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(g) | Independent Decision: The Borrower understands that consideration of any Request for Extension constitutes an independent credit decision which each Lender retains the absolute and unfettered discretion to make and that no commitment in this regard is hereby given by any Lender. | |
(h) | Default or Event of Default: Notwithstanding the foregoing, the Borrower shall not be entitled to make a Request for Extension or accept any offer made by the Agent on behalf of the Agreeing Lenders to extend the Subject Maturity Date if a Default or Event of Default has occurred and is continuing or it is unable to make the representations and warranties as required pursuant to Section 2.2 at such time. |
REPAYMENT AND PREPAYMENT
(a) | prepaid or otherwise reduced the Borrowings outstanding to each Lender in an amount equal to the amount by which the Borrowings outstanding to such Lender would otherwise be in excess of such Lender’s Commitment immediately after the reduction of the Total Commitment provided for in such notice; and | |
(b) | paid all accrued interest and other charges and fees in respect of the Borrowings being repaid or reduced as aforesaid. |
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(a) | a Lender does not agree to make Borrowings available in respect of a Takeover; | |
(b) | any payment is required to be made by the Borrower to a Lender (but not to all of the Lenders) pursuant to Section 6.3; | |
(c) | Additional Compensation is payable by the Borrower to a Lender (but not to all of the Lenders) pursuant to Section 10.2; or | |
(d) | a Lender is affected by the provisions of Section 10.3 and all of the other Lenders are not so affected; |
(i) | upon at least five (5) Business Days prior written notice to the Agent, irrevocably cancel all but not part of the Affected Lender’s Commitment if on or prior to the last day of such notice period the Borrower has prepaid or otherwise reduced all Borrowings outstanding to such Lender, and paid all accrued interest and other charges and fees in respect of such Borrowings; or | ||
(ii) | with the consent of the Agent, such consent not to be unreasonably withheld, and within thirty (30) days of any such cancellation, arrange for a replacement lender (which may be one of the Lenders in which case no consent of the Agent shall be required) to replace the Affected Lender’s Commitment and any such replacement lender shall be novated into the Loan Documents in the place and stead of the Affected Lender. |
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PAYMENT OF INTEREST AND FEES
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(a) | Issue Fee: The Borrower shall pay to the Agent on behalf of each Lender at the Agent’s Account for Payments an issue fee in Cdn. Dollars or U.S. Dollars, as applicable, equal to the applicable Margin for each Letter of Credit issued hereunder on the date of payment of such issue fee; provided that if during the period for which any such issue fee has been paid a change in the Margin occurs, the issue fees paid by the Borrower in respect of such Letter of Credit shall be adjusted to reflect the Margin for the remaining term of the Letter of Credit and the Borrower, in the case of an increase in the Margin, shall forthwith after receipt of a notice from the Agent make such payments to the Agent at the Agent’s Account for Payments for the account of the Lenders as are necessary to reflect such change and the Lenders, in the case of a decrease in the Margin, shall credit any amount which would otherwise be refundable to the Borrower against amounts in respect of interest or fees accruing and next due hereunder. Such issue fee shall be payable by the Borrower quarterly in advance commencing on the date of issue (which shall |
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include any renewal) of such Letter of Credit and thereafter on the first day of each successive calendar quarter during the term of such Letter of Credit and shall be calculated based on the Lender’s Proportion of each Lender of such Letter of Credit, as applicable, of the face amount of each such Letter of Credit and on the basis of the number of days in such calendar quarter or portion thereof and a year of three hundred sixty-five (365) days. |
(b) | Fronting Fee: The Borrower shall pay to the Agent (solely for the account of the Issuing Lender) a fronting fee for each Letter of Credit issued by the Issuing Lender pursuant to Section 3.9, in an amount agreed to by the Borrower and the Issuing Lender in writing at or prior to issuing any Letter of Credit calculated and payable in the same manner as the fees under Section 5.5(a) except such fee shall be calculated on the face amount of such Letter of Credit. | |
(c) | Administration Fee: The Borrower shall pay to the Agent on behalf of each Lender at the Agent’s Account for Payments and at the time of the issuance, amendment or transfer of any Letter of Credit hereunder, each such Lender’s standard documentary and administrative charges for issuing, amending or transferring Letters of Credit of a similar amount, term and risk. | |
(d) | Credit on Account of Fees: If and to the extent that a Letter of Credit is drawn upon prior to the date of expiry thereof, or is terminated and returned to the Lenders or the Issuing Lender, as applicable, prior to such date of expiry, or the face amount thereof is reduced by the Lenders or the Issuing Lender, as applicable, prior to such date of expiry (other than through a drawing on such Letter of Credit) or any combination thereof, the Lenders and the Issuing Lenders, as applicable, shall forthwith after such event and through the Agent’s Account for Payments credit the Borrower with any fees which it has paid in respect of any such Letter of Credit pursuant to Section 5.5(a) or 5.5(b) based upon the amount of the Letter of Credit on its termination or the amount of the reduction and for the time remaining in the period for which such fees were originally paid. |
(a) | if the overdue payment is in respect of a Loan, the interest rate then applicable to such Loan plus, to the extent permitted by law, one percent (1%); | |
(b) | the Cdn. Prime Rate plus, to the extent permitted by law, one percent (1%) in respect of all amounts due (other than in respect of a Loan) in Canadian Dollars to the Agent or the Lenders; and | |
(c) | the U.S. Base Rate plus, to the extent permitted by law, one percent (1%) in respect of all amounts due (other than in respect of a Loan) in U.S. Dollars to the Agent or the Lenders. |
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PAYMENT AND TAXES
(a) | firstly, in payment of any amounts due and payable as and by way of recoverable expenses hereunder; |
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(b) | secondly, in payment of any amounts due and payable as and by way of the Agent’s fees referred to in Section 5.8; | |
(c) | thirdly, in payment of any amounts due and payable as and by way of the standby fees referred to in Section 5.7; | |
(d) | fourthly, in payment of any amounts due and payable as and by way of interest on Borrowings pursuant to Sections 5.1, 5.2 and 5.3, acceptance fees pursuant to Section 5.4, Letter of Credit fees pursuant to Section 5.5, and interest on overdue amounts pursuant to Section 5.6; and | |
(e) | fifthly, in payment of any amounts (other than Borrowings) then due and payable by the Borrower hereunder other than amounts hereinbefore referred to in this Section 6.2; |
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(a) | as of the Effective Date, there exists no “Default” or “Event of Default” (under and as defined in the Prior Agreement) and no Default or Event of Default hereunder and, if the Effective Date is other than the date of this Agreement, the Agent has received a certificate of the Borrower certifying the same; | |
(b) | the representations and warranties contained in Article 2 are true and correct as of the Effective Date and, if the Effective Date is other than the date of this Agreement, the Agent has received a certificate of the Borrower certifying the same; | |
(c) | the Agent has received, in sufficient numbers for distribution to each of the Lenders in form and substance satisfactory to the Agent and the Lenders, the following: |
(i) | a duly executed copy of this Agreement; | ||
(ii) | a duly executed copy of a subordination agreement confirming that any Convertible Debt now in existence is subordinate to the Term Indebtedness, the Operating Indebtedness, the Swap Indebtedness and the Bridge Indebtedness; | ||
(iii) | a duly executed copy of an addition agreement from each of 702 Subco and the 702 Partnership whereby each such party agrees to be bound by the Loan Party Guarantee; | ||
(iv) | a duly executed copy of an addition agreement from each of 702 Subco and the 702 Partnership whereby each such party agrees to be bound by the Subordination Agreement; | ||
(v) | a duly executed copy of the consent and acknowledgement of Guarantors attached to this Agreement from the Trust and each Designated Subsidiary currently in existence (other than 702 Subco and the 702 Partnership) consenting to the provisions hereof and confirming that the Loan Party Guarantee and the Subordination Agreement to which it is a party remains in full force and effect; | ||
(vi) | certificates of status or compliance in respect of the Borrower and each Designated Subsidiary which is a corporation issued under the laws of its governing jurisdiction; | ||
(vii) | partnership searches in respect of each Designated Subsidiary which is a partnership issued under the laws of its governing jurisdiction; | ||
(viii) | an officer’s certificate of or relating to each Loan Party, attaching thereto, inter alia: (i) its articles of incorporation and by-laws, partnership agreement or other constating documents, to the extent not previously provided to the Agent; (ii) specimen signatures of the individuals who will be executing the Loan Documents on its behalf; and (iii) a resolution of its board of directors or equivalent governing body (if required) relating to its authority to execute, deliver and perform its obligations under the Loan Documents to |
which it is a party and the manner in which and by whom the foregoing documents are to be executed and delivered; | |||
(ix) | an officer’s certificate of the Borrower attaching thereto any Material Contracts (or any amendments thereto) not previously provided to the Agent, if any; | ||
(x) | an opinion of Xxxxxxx Xxxxx LLP, counsel to the Loan Parties addressed to the Agent and each Lender with respect to the Loan Documents to which each Loan Party is a party, in form and substance satisfactory to the Lenders, acting reasonably; | ||
(xi) | an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, counsel to the Agent and the Lenders, addressed to the Agent and each Lender with respect to the transactions provided for herein, in form and substance satisfactory to the Lenders, acting reasonably; and | ||
(xii) | such other information as may be reasonably requested by the Agent; |
(d) | prior to or concurrently with the execution of this Agreement, the Agent has received, in form and substance satisfactory to the Agent, an agreement between the Borrower and the Agent with respect to the fees payable pursuant to Section 5.8 duly executed by the Borrower and the Agent; |
(e) | prior to or concurrently with the execution of this Agreement, the Agent has received, in form and substance satisfactory to the Lenders, an agreement between the Borrower and the Agent with respect to the fees payable pursuant to Section 5.9 duly executed by the Borrower and the Agent; and |
(f) | prior to or concurrently with the execution of this Agreement, the Borrower has paid all fees which are then due which have been agreed to be paid by it in connection herewith to the Agent and the Lenders. |
(a) | the satisfaction of the conditions set forth in Section 7.1; and |
(b) | that on each Drawdown Date, Conversion Date and Rollover Date there exists no Default or Event of Default and that on each Drawdown Date the representations and warranties referred to in Section 2.2 are true and correct in all material respects on each Drawdown Date with the same effect as if made as of that Drawdown Date. |
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COVENANTS OF THE BORROWER
(a) | Payment and Performance: the Borrower shall duly and punctually pay all sums of money due by it hereunder and perform all other obligations on its part to be performed under the terms of the Loan Documents at the times and places and in the manner provided for therein; |
(b) | Corporate Existence: the Borrower shall, subject to Section 8.2(b), maintain its corporate existence in good standing under the laws of the Province of Alberta and register and qualify and remain registered and qualified as a corporation authorized to carry on business under the laws of each jurisdiction in which the nature of any business conducted by it or the character of any properties and assets owned or leased by it requires such registration and qualification except to the extent failure to register or qualify would not reasonably be expected to have a Material Adverse Effect; |
(c) | Trust Existence: the Borrower shall cause the Trust to maintain its existence as a “mutual fund trust” (within the meaning of the Income Tax Act (Canada)) and as a trust validly subsisting under the laws of the Province of Alberta and to qualify and remain qualified as a trust authorized to carry on business under the laws of each jurisdiction in which the nature of any business conducted by it or the character of any properties and assets owned or leased by it requires such qualification except to the extent failure to qualify would not reasonably be expected to have a Material Adverse Effect; |
(d) | Existence of Designated Subsidiaries: the Borrower shall, subject to Section 8.2(b), cause each Designated Subsidiary which is a corporation to maintain its corporate existence and cause each Designated Subsidiary which is a partnership to maintain its partnership existence and cause each Designated Subsidiary which is a trust to maintain its existence as a trust, each in good standing under the laws of the jurisdiction of incorporation or creation, as the case may be, and shall cause each to register and qualify and remain registered and qualified as an extra provincial corporation, partnership or trust, as the case may be, authorized to carry on business under the laws of each jurisdiction in which the nature of any business transacted by it or the character of any properties and assets owned or leased by it requires such registration and qualification except to the extent failure to register or qualify would not reasonably be expected to have a Material Adverse Effect; |
(e) | Maintenance of Petroleum and Natural Gas Properties: the Borrower shall and shall cause each of the other Loan Parties to, subject to Permitted Dispositions, maintain and operate all of its properties and assets, including, without limitation, its petroleum and natural gas properties and related production facilities, in a good and workmanlike manner and in accordance with good oilfield practice except to the extent failure to do so would not reasonably be expected to have a Material Adverse Effect, and conduct its business in a proper and prudent manner and maintain and preserve its assets and properties so as not to materially and adversely impair its ability to perform its obligations under this Agreement, the other Loan Documents and the Material Contracts, and the Borrower shall and shall cause each of the other Loan Parties to comply with all of its obligations under all agreements and instruments to which it is a party or by which it is bound or affected, including, without limitation, the Material Contracts, other than non-compliance which does not have a Material Adverse Effect; |
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(f) | Insurance: the Borrower shall and shall cause each of the other Loan Parties to maintain or have maintained on its behalf in full force and effect such policies of insurance in such amounts (including deductibles, co-insurance and self insurance as is in accordance with prudent oil and gas industry practice) issued by insurers of recognized standing covering the properties and operations of the Loan Parties including, without limitation, their oil and gas properties and related production facilities, as is customarily maintained by persons engaged in the same or similar business in the localities where such properties and operations are located; |
(g) | Compliance With Laws and Regulations: the Borrower shall and shall cause each of the other Loan Parties and each Subsidiary to: |
(i) | comply in all respects with all applicable laws, rules, regulations and orders of governmental authorities, including, without limitation, Environmental Laws; | ||
(ii) | observe and conform in all respects to all valid requirements of any governmental or municipal authority relative to any of its assets and all covenants, terms and conditions of all agreements upon or under which any of its assets are held; and | ||
(iii) | comply in all respects with all permits, licences and authorizations which are required under Environmental Laws; |
except to the extent failure to so comply or failure to so observe and conform does not have and would not reasonably be expected to have a Material Adverse Effect; | ||
(h) | Notices: the Borrower shall: |
(i) | promptly upon acquiring knowledge thereof, provide the Agent with written notice of the discovery of any contaminant or of any spill, discharge, deposit, escape or release of a contaminant into the environment from or upon the land or property of any Loan Party or of any Subsidiary which has or would reasonably be expected to have a Material Adverse Effect; | ||
(ii) | provide prompt notice to the Agent of any matter of which it is aware that has or would reasonably be expected to have a Material Adverse Effect; | ||
(iii) | provide the Agent with prompt written notice of any action, suit, litigation or other proceeding which is commenced or threatened against any Loan Party or against any Subsidiary and which involves a claim against any of them which has or would reasonably be expected to have a Material Adverse Effect; | ||
(iv) | provide prompt notice to the Agent of any Default or Event of Default; and | ||
(v) | provide prompt written notice to the Agent of any change of control of the Manager or of any transfer of any issued and outstanding shares in the capital of the Borrower held by the Manager; |
(i) | Environmental Matters: the Borrower shall, upon the request of the Agent, acting reasonably, make available for discussion with the Agent and the Lenders at all reasonable times the senior officers of any Loan Party and any Subsidiary primarily responsible for the environmental activities and affairs of such Loan Party or such Subsidiary and shall provide to the Agent any report which any Loan Party or any Subsidiary provides to its directors with respect to the |
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environmental activities and policies of such Loan Party or such Subsidiary at the same time as it provides such report to its directors; |
(j) | Payment of Taxes and Government Levies: the Borrower shall and shall cause each of the other Loan Parties to pay or cause to be paid all rents, Taxes, rates, levies, royalties and assessments, ordinary or extraordinary, fees and dues, validly levied, assessed or imposed upon it, or upon its properties or any part thereof, by any government authority as and when the same become due and payable, except to the extent failure to do so would not reasonably be expected to have a Material Adverse Effect; |
(k) | Maintenance of Books and Records: the Borrower shall and shall cause each of the other Loan Parties to keep proper and adequate records and books of account in which true and complete entries will be made in a manner sufficient to enable the preparation of financial statements in accordance with Generally Accepted Accounting Principles and, upon the request of the Agent and subject to any applicable confidentiality provisions, make the same available for confidential inspection by the Agent and its employees at all reasonable times; |
(l) | Year End Financial Statements of the Trust: the Borrower shall furnish to the Agent as soon as available and in any event within one hundred twenty (120) days after the end of each Fiscal Year of the Trust, a consolidated balance sheet of the Trust as at the close of such Fiscal Year, a consolidated statement of income and accumulated earnings of the Trust, a consolidated statement of cash flows of the Trust and a consolidated statement of unitholders’ equity of the Trust for such Fiscal Year, setting forth in comparative form the corresponding figures of the preceding Fiscal Year together with an auditor’s report, containing: |
(i) | such auditor’s confirmation that their examinations of such consolidated financial statements were made in accordance with generally accepted auditing standards and accordingly included such tests and other procedures as they considered necessary in the circumstances; and | ||
(ii) | such auditor’s opinion that such consolidated financial statements present fairly the consolidated financial position of the Trust as of the close of such Fiscal Year and the results of its operations and the changes in its financial position for the Fiscal Year then ended in accordance with Generally Accepted Accounting Principles consistently applied; |
(m) | Quarterly Financial Statements of the Trust: the Borrower shall furnish to the Agent as soon as available and in any event within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Trust, a consolidated balance sheet of the Trust as at the end of such Fiscal Quarter, a consolidated statement of income and accumulated earnings of the Trust, a consolidated statement of cash flows of the Trust and a consolidated statement of unitholders’ equity of the Trust for such period, prepared on an unaudited basis which is consistent with the corresponding period of the preceding Fiscal Year; |
(n) | Compliance Certificate: the Borrower shall furnish to the Agent within sixty (60) days after the end of each of the first three Fiscal Quarters of each Fiscal Year of the Trust, and within ninety (90) days after the end of each Fiscal Year of the Trust, a duly executed and completed Compliance Certificate together with such back-up information as the Agent may reasonably require; |
(o) | Other Reports: the Borrower shall furnish to the Agent: |
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(i) | promptly upon transmission thereof, all financial statements, proxy statements, annual information forms, information circulars, notices and reports as the Trust shall send to the Trust Unitholders and to the Royalty Unitholders and copies of all prospectuses filed by the Trust with Canadian and United States securities regulatory authorities, registration statements and all material change reports which the Trust files with any Canadian or United States securities regulatory authorities; | ||
(ii) | promptly upon transmission thereof, all notices of meetings of Royalty Unitholders given pursuant to the Royalty Indenture and all notices of meetings of the Trust Unitholders given pursuant to the Trust Indenture; | ||
(iii) | promptly upon transmission thereof, any request of Trust Unitholders for the calling of a meeting of the Trust Unitholders or the Royalty Unitholders, respectively; | ||
(iv) | promptly upon receipt or delivery of the same, as applicable, all material reports which the Trust receives from or provides to the Borrower pursuant to any Material Contract; and | ||
(v) | promptly upon the same becoming effective, copies of any amendment to (including an assignment of) any Material Contract permitted hereunder; |
(p) | Additional Information: subject to any applicable confidentiality provisions, the Borrower shall and shall cause each of the other Loan Parties to furnish to the Agent any additional information regarding the business affairs, operations, properties and assets and financial condition of the Borrower or such Loan Party as the Agent may reasonably request from time to time and the Borrower shall and shall cause each of the other Loan Parties to permit any person designated in writing by the Agent, at the Lenders’ expense prior to a Default and at the Borrower’s reasonable expense after a Default which has occurred and is continuing but subject, in either case, to such reasonable access restrictions as may be imposed by the operator of the properties and assets in accordance with its ordinary business practices, to visit and inspect the Borrower’s or such Loan Party’s properties and assets, including, without limitation, their oil and gas properties and related production facilities and to carry out such environmental reviews as the Agent, in its sole discretion, acting reasonably, deems advisable, and to examine the books and financial records of the Borrower or such Loan Party and to discuss the affairs, finances and accounts, all at such reasonable times and as often as may be reasonably requested; provided, however, that such person or persons representing the Agent shall hold all information obtained as a result of such visit or visits in strict confidence for the use of the Agent and the Lenders in the conduct of their business related to the transactions contemplated by this Agreement; |
(q) | Comply with Permitted Encumbrances: the Borrower shall and shall cause each of the other Loan Parties to comply with all obligations under any Permitted Encumbrances, except to the extent failure to do so would not reasonably be expected to have a Material Adverse Effect; |
(r) | Accuracy of Oil and Gas Information: the Borrower shall ensure that each Engineering Report and Internal Engineering Report and all other related data and information provided by the Borrower to the Lenders with respect to the Oil and Gas Properties evaluated in any such Engineering Report or Internal Engineering Report or discussed in such related data and information, to the best of the knowledge and belief of the Borrower, after due inquiry, accurately and fairly reflect the interests of the Borrower and the Designated Subsidiaries therein and thereto net of all royalties and other burdens affecting same; |
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(s) | Engineering Reports: on or before the earlier of a Request for Extension pursuant to Section 3.15 and March 31 in each year during the term of this Agreement, the Borrower shall deliver to the Lenders an Engineering Report in respect of the Oil and Gas Properties. Each such Engineering Report shall be dated on or subsequent to December 31 of the year immediately preceding the year in which it is required to be delivered; |
(t) | Loan Party Guarantee and Subordination Agreement: within five (5) Business Days of a Subsidiary acquiring assets in an amount which would otherwise result in a violation of Section 8.3(d), or within five (5) Business Days of the Borrower or the Trust acquiring, directly or indirectly, a Subsidiary having assets in an amount which would otherwise result in a violation of Section 8.3(d), or within five (5) Business Days of a request being made by the Borrower to have a Subsidiary become a Designated Subsidiary, the Borrower shall cause such Subsidiary to provide to the Agent on behalf of the Agent and the Lenders an addition agreement (in the form attached as a schedule to the Loan Party Guarantee) whereby it agrees to be bound by the Loan Party Guarantee and an addition agreement (in the form attached as a schedule to the Subordination Agreement) whereby it agrees to be bound by the Subordination Agreement, and in addition thereto, shall provide, or cause to be provided, to the Agent a favourable opinion of counsel satisfactory to the Agent, acting reasonably, as to the legality, validity and enforceability of such addition agreements to the Loan Party Guarantee and the Subordination Agreement and as to such other matters as the Agent may reasonably require together with such other documents, such as certified resolutions and constating documents of the Designated Subsidiary, as the Agent may reasonably require; |
(u) | Ownership of Designated Subsidiaries: the Borrower shall ensure that each Designated Subsidiary will at all times be a direct or indirect wholly-owned Subsidiary of the Borrower or of the Trust, provided that a Designated Subsidiary may only be an indirect wholly-owned Subsidiary of the Borrower or of the Trust if all shareholders, partners and unitholders (as the case may be) of such Designated Subsidiary, and all shareholders, partners and unitholders (as the case may be) of such shareholders, partners and unitholders (as the case may be) through to the Borrower or the Trust, shall constitute Designated Subsidiaries; |
(v) | Comply with Material Contracts: the Borrower shall and shall cause each of the other Loan Parties to comply with the provisions of the Material Contracts to which it is a party (except to the extent any failure to comply would not reasonably be expected to have a Material Adverse Effect); |
(w) | Pari Passu Ranking: the Borrower shall ensure that its payment obligations hereunder rank at least pari passu in right of payment with all of its other existing and future senior unsecured indebtedness for borrowed money; |
(x) | Intercompany Subordinated Debt: the Borrower shall ensure that the Intercompany Subordinated Debt is at all times held by the Trust (provided that the Trust may sell, assign or transfer all or any portion of its interest in any Intercompany Subordinated Debt to one or more of the Designated Subsidiaries, whereupon such Intercompany Subordinated Debt so sold, assigned or transferred shall cease to constitute Intercompany Subordinated Debt hereunder and shall no longer be subject to the postponement and subordination provided for in the Subordination Agreement); |
(y) | Royalty: the Borrower shall ensure that the right to receive the Royalty and the Royalty Units are at all times held by any one or more of the Trust and the Designated Subsidiaries, provided that if any such right is held by the Trust, the Trust’s rights and interest in such Royalty, Royalty |
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Units and the Royalty Indenture must be and remain fully postponed and subordinated to the Term Indebtedness, the Operating Indebtedness and the Swap Indebtedness as provided for in the Subordination Agreement, and provided further that, if and during the time that the right to receive the Royalty and the Royalty Units are held only by one or more Designated Subsidiaries, the Royalty Indenture shall cease to constitute a Material Contract hereunder, and the Royalty, the Royalty Units and the Royalty Indenture shall no longer be subject to the postponement and subordination provided for in the Subordination Agreement; and |
(z) | NPI: the Borrower shall ensure that the NPI is at all times held by any one or more of the Trust and the Designated Subsidiaries, provided that if any portion of the NPI is held by the Trust, the Trust’s interest therein and in the NPI Agreement must be and remain fully postponed and subordinated to the Term Indebtedness, the Operating Indebtedness and the Swap Indebtedness as provided for in the Subordination Agreement, and provided further that, if and during the time that the NPI is held only by one or more Designated Subsidiaries, the NPI Agreement shall cease to constitute a Material Contract hereunder, and the NPI and the NPI Agreement shall no longer be subject to the postponement and subordination provided for in the Subordination Agreement. |
(a) | Negative Pledge: except for Permitted Encumbrances, the Borrower shall not and shall not permit any of the other Loan Parties to create, incur, assume or suffer to exist any Security Interest, upon or with respect to any of its undertaking, properties, rights or assets, whether now owned or hereafter acquired and including, without limitation, its Petroleum and Natural Gas Properties and related production facilities; |
(b) | Restriction on Amalgamation etc.: the Borrower shall not and shall not permit any of the other Loan Parties to enter into any transaction (other than a transaction involving only Loan Parties) whereby all or substantially all of its undertaking, property and assets would become the property of any other person (herein called a “Successor”) whether by way of reconstruction, reorganization, recapitalization, consolidation, amalgamation, merger, transfer, sale or otherwise (each a “Transaction”) unless: |
(i) | the Majority Lenders, acting reasonably, are satisfied with the resulting creditworthiness of the Successor after the Transaction; | ||
(ii) | prior to or contemporaneously with the consummation of such Transaction: |
(A) | the Successor is or will be (by operation of law or otherwise) bound by or have assumed all the covenants and obligations of the Borrower or such Loan Party under the Loan Documents and the Material Contracts to which it is a party; and | ||
(B) | the Loan Documents and the Material Contracts to which it is a party will be valid and binding obligations of the Successor, enforceable against the Successor and entitling the Agent and the Lenders, as against the Successor, to exercise all their rights under the Loan Documents to which it is a party; |
and provided that the Successor shall also execute and/or deliver to the Agent such documents (including assumption agreements and legal opinions of counsel to the |
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Successor), if any, as may, in the reasonable opinion of the Agent, be necessary to effect or establish (A) and (B) above; |
(iii) | the Successor is an entity governed by or created under the federal laws of Canada or the laws in force in a province of Canada, and in the case of the Borrower only, the Successor is a corporation; | ||
(iv) | such Transaction shall not have a Material Adverse Effect; | ||
(v) | such Transaction shall be on such terms and shall be carried out in such manner as to preserve and not to impair any of the rights and powers of the Agent and the Lenders hereunder and under any other Loan Documents and not to affect adversely the potential liability of the Agent and the Lenders for any present or future taxes, duties, assessments or charges of whatsoever nature imposed or levied by or on behalf of the Government of Canada or any province or political subdivision thereof or any authority or agency therein or thereof having power to impose or levy taxes, duties, assessments or charges; | ||
(vi) | such Transaction shall not result in the undertaking, property and assets of the Successor being subject to any Security Interests other than Permitted Encumbrances; and | ||
(vii) | no Event of Default or Default shall have occurred and be continuing immediately prior to such Transaction or will occur as a result of such Transaction; |
and provided further that, in the case of a transaction involving only Loan Parties that would otherwise constitute a Transaction, the Borrower shall not and shall not permit any of the Loan Parties to enter into such a transaction unless the conditions specified in subsections (ii)(A) and (B), (iii) and (vii) above are satisfied, and the Successor shall execute and/or deliver to the Agent such documents (including assumption agreements and legal opinions of counsel to the Successor), if any, as may, in the reasonable opinion of the Agent, be necessary to effect or establish the matters set forth in subsection (ii)(A) and (B) above; |
(c) | Change of Business: the Borrower shall not and shall not permit any of the other Loan Parties to change in any material respect the nature of its business or operations from the exploration for, and development, production, marketing, transportation and processing of, petroleum, natural gas and related products, nor engage directly or indirectly in any material business or activity not primarily related to the conduct of its business or operations as presently carried on; |
(d) | Restriction on Sale: the Borrower shall not and shall not permit any of the other Loan Parties to, directly or indirectly, make any sale, exchange, lease, transfer, contribution or other disposition (other than Permitted Dispositions) of any of its assets to any person if such disposition has or would reasonably be expected to have a Material Adverse Effect; |
(e) | Swap Amounts: the Borrower shall not and shall not permit any of the other Loan Parties to: |
(i) | enter into any Swap with any person unless such Swap complies with the then applicable hedging policies with respect to Swaps approved by the board of directors of the Borrower; or | ||
(ii) | enter into any Swap with any person unless such Swap is entered into for hedging purposes only in the ordinary course of business and not for speculative purposes; |
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(f) | Designated Subsidiary Swaps: the Borrower shall not permit any of the Designated Subsidiaries to enter into any Swap with one of the Lenders or any of their affiliates unless the Loan Parties shall have provided a guarantee of the Swap Indebtedness to be incurred thereunder in favour of such Lender (or its affiliate) or the Agent on behalf of, inter alia, such Lender (or its affiliate); |
(g) | Restriction on Financial Assistance: except for Permitted Financial Assistance, the Borrower shall not and shall not permit any of the other Loan Parties to provide any form of Financial Assistance to any person; |
(h) | Transactions With Affiliates: except to the extent permitted by Section 8.2(g) above and except for transactions between Loan Parties, the Borrower shall not and shall not permit any of the other Loan Parties to engage in any material transaction with the Manager or any Affiliate of the Borrower or of the Trust on terms which are materially less favourable to the Borrower or such Loan Party than would be obtainable at the time in a comparable transaction with any person which is at arms-length to the Borrower; |
(i) | Material Contracts: the Borrower shall not permit any of the other Loan Parties to amend, replace, waive strict and timely performance of, terminate or assign any Material Contract (other than any assignments, sales or transfers of any Material Contract or any interest in any Material Contract, including the NPI, the Royalty and the Royalty Units, completed in compliance with Sections 8.1(x), 8.1(y) and 8.1(z) hereof and other than any amendments, replacements, waivers or terminations of any Material Contract that would not reasonably be expected to have a Material Adverse Effect) without the prior written consent of the Lenders, such consent not to be unreasonably withheld; |
(j) | Shares of Borrower: the Borrower will not permit the issuance of any shares other than common shares in the issued capital of the Borrower without the prior written consent of the Lenders, such consent not to be unreasonably withheld; and |
(k) | Distributions: if a Default or an Event of Default has occurred and is continuing or would reasonably be expected to occur as a result thereof, |
(i) | the Borrower shall not and shall not permit any Designated Subsidiary to make any Distribution; and | ||
(ii) | the Borrower shall not, after the delivery of a written notice from the Agent to the Trustee as contemplated by the Subordination Agreement, permit the Trust to make any payment or distribution of any kind to any person other than the Borrower or a Designated Subsidiary. |
(a) | Consolidated Senior Debt to EBITDA Ratio: the Consolidated Senior Debt to EBITDA Ratio as at the end of any Fiscal Quarter shall not exceed 3:1, provided that if the Borrower, the Trust or a Designated Subsidiary completes a Material Acquisition (and provided that the Borrower would have continued to comply with this Section 8.3(a) if such Material Acquisition had not been made and provides a calculation evidencing such compliance in its Compliance Certificate |
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relating to such Fiscal Quarter), then during the period from the completion of such Material Acquisition to the end of the second complete Fiscal Quarter after completion of such Material Acquisition, the Borrower may permit the Consolidated Senior Debt to EBITDA Ratio to increase to a level not exceeding 3.5:1; |
(b) | Consolidated Total Debt to EBITDA Ratio: the Consolidated Total Debt to EBITDA Ratio as at the end of any Fiscal Quarter shall not exceed 3.5:1, provided that if the Borrower, the Trust or a Designated Subsidiary completes a Material Acquisition (and provided that the Borrower would have continued to comply with this Section 8.3(b) if such Material Acquisition had not been made and provides a calculation evidencing such compliance in its Compliance Certificate relating to such Fiscal Quarter), then during the period from the completion of such Material Acquisition to the end of the second complete Fiscal Quarter after completion of such Material Acquisition, the Borrower may permit the Consolidated Total Debt to EBITDA Ratio to increase to a level not exceeding 4.0:1; |
(c) | Consolidated Senior Debt to Capitalization Ratio: the Consolidated Senior Debt to Capitalization Ratio shall not at any time exceed 50%, provided that if the Borrower, the Trust or a Designated Subsidiary completes a Material Acquisition (and provided that the Borrower would have continued to comply with this Section 8.3(c) if such Material Acquisition had not been made and provides a calculation evidencing such compliance in its Compliance Certificate relating to such Fiscal Quarter), then during the period from the completion of such Material Acquisition to the end of the second complete Fiscal Quarter after completion of such Material Acquisition, the Borrower may permit the Consolidated Senior Debt to Capitalization Ratio to increase to a level not exceeding 55%; |
(d) | Designated Subsidiaries Asset Test: subject to Section 8.1(t), the Borrower shall ensure that the Consolidated Tangible Assets of the Loan Parties (determined on an unconsolidated basis and excluding inter-company items) shall not at any time be less than 85% of the Consolidated Tangible Assets of the Trust as shown on the most recent consolidated financial statements of the Trust provided to the Lenders hereunder; and |
(e) | Non-Recourse Debt: the Borrower shall ensure that the aggregate amount of outstanding Non-Recourse Debt of the Borrower and the other Loan Parties (determined on a consolidated basis) shall not exceed an amount equal to 2.5% of the Consolidated Tangible Assets of the Trust as shown on the most recent consolidated financial statements of the Trust provided to the Lenders hereunder. |
EVENTS OF DEFAULT
(a) | Repayment: the failure to repay or otherwise reduce the Borrowings or any portion thereof or any other amounts due hereunder when due for repayment, payment or other reduction hereunder, for a period of five (5) Business Days after written notice has been given to the Borrower from the Agent that any such amount is overdue; |
(b) | Voluntary Insolvency: if any Loan Party shall: |
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(i) | apply for or consent to the appointment of a receiver, trustee or liquidator of itself or of all or a substantial part of its assets; | ||
(ii) | be unable, or admit in writing its inability or failure, to pay its debts generally as they become due; | ||
(iii) | make a general assignment for the benefit of creditors; | ||
(iv) | commit an act of bankruptcy under the Bankruptcy and Insolvency Act (Canada); | ||
(v) | commence any cause, proceeding or other action under any existing or future law relating to bankruptcy, insolvency, reorganization of its indebtedness or relief of debtors seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement or adjustment of its indebtedness, winding up, liquidation, dissolution, composition or other relief with respect to it or its debts or an arrangement with creditors or taking advantage of any insolvency law or proceeding for the relief of debtors, or file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization of its indebtedness or insolvency proceeding; or | ||
(vi) | take corporate action for the purpose of effecting any of the foregoing; |
(c) | Involuntary Insolvency: if any cause, proceeding or other action shall be instituted in any court of competent jurisdiction, against any Loan Party, seeking in respect of such Loan Party an adjudication in bankruptcy, reorganization of its indebtedness, dissolution, winding up, liquidation, a composition or arrangement with creditors, a readjustment of debts, the appointment of a trustee, receiver, liquidator or the like of it or of all or any substantial part of its assets, or any other like relief in respect of such Loan Party under any bankruptcy or insolvency law and: |
(i) | such cause, proceeding or other action results in an entry of an order for relief or any such adjudication or appointment; or | ||
(ii) | if such cause, proceeding or other action is being contested by such Loan Party in good faith, the same shall continue undismissed, or unstayed and in effect, for any period of thirty (30) consecutive days; |
(d) | Cross Default: if, other than as provided for under Section 9.1(e), 9.1(f) or 9.1(g) hereof: |
(i) | any Loan Party is in default (as principal or as guarantor or other surety) in the payment of any principal of, or interest on, or any other amount in respect of any Debt that would be classified as debt on a consolidated balance sheet of the Trust (other than pursuant to this Agreement or Non-Recourse Debt) or Swap that is outstanding in an aggregate principal amount in excess of the Threshold Amount beyond any period of grace provided with respect thereto; | ||
(ii) | any Loan Party is in default in the performance of or compliance with any term of any evidence of any Debt that would be classified as debt on a consolidated balance sheet of the Trust (other than pursuant to this Agreement or Non-Recourse Debt) or Swap in an aggregate outstanding principal amount in excess of the Threshold Amount or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and |
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as a consequence of any such default or condition such Debt or Swap has become, or has been declared, due and payable before its stated maturity or before its regularly scheduled dates of payment; or | |||
(iii) | as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Debt to convert such indebtedness into equity interests): |
(A) | any Loan Party has become obligated to purchase or repay Debt that would be classified as debt on a consolidated balance sheet of the Trust (other than pursuant to this Agreement or Non-Recourse Debt) or Swaps before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount in excess of the Threshold Amount; or | ||
(B) | one or more persons have the right to require any Loan Party so to purchase or repay Debt that would be classified as debt on a consolidated balance sheet of the Trust (other than pursuant to this Agreement or Non-Recourse Debt) or Swaps in an aggregate outstanding principal amount in excess of the Threshold Amount; |
(e) | Default under Operating Loan Documents: if written demand is made for repayment of the Operating Borrowings and the Borrower defaults in repayment thereof for a period of fifteen (15) days after such demand is made; |
(f) | Lender Swap Agreements: if any Loan Party defaults under a Swap Agreement with any Lender or an affiliate thereof and such default is not remedied within fifteen (15) days after written notice of such default has been given to the Borrower by such Lender or affiliate; |
(g) | Default under Bridge Loan Documents: if the Borrower is in default under any term or provision of the Bridge Loan Documents and as a result of such default the Bridge Lenders (or the Bridge Agent) shall have accelerated or shall have the right to accelerate the repayment of any of the Bridge Indebtedness; |
(h) | Invalid Loan Documents: if for a period of twenty (20) days after written notice thereof to the Borrower, any material provision of any Loan Document continues to be invalid or unenforceable and not cured to the satisfaction of the Agent acting reasonably; |
(i) | Representations and Warranties: if any representation or warranty made or deemed to be made by any Loan Party in the Loan Documents shall prove to have been incorrect, when made or deemed to be made, in any material respect and shall continue to be incorrect for a period of twenty (20) days after written notice of such incorrect representation or warranty has been given to the Borrower by the Agent; |
(j) | Judgments: if final judgments for the payment of money aggregating in excess of the Threshold Amount shall be rendered against any Loan Party (other than in respect of Non-Recourse Debt) and the same shall remain undischarged for a period of twenty (20) days during which such judgments shall not be on appeal or execution thereof shall not be effectively stayed; |
(k) | Writs: if a writ, execution, attachment or similar process is issued or levied against all or a material portion of the property of any Loan Party in connection with any judgment or judgments against such Loan Party aggregating in excess of the Threshold Amount (other than against any Non-Recourse Asset in respect of the Non-Recourse Debt to which it relates) and such writ, |
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execution, attachment or similar process is not released, satisfied, discharged, vacated or stayed within twenty (20) days after its entry, commencement or levy; |
(l) | Encumbrancers: if an encumbrancer or lienor takes possession of any part of the property of any Loan Party (other than a holder of Non-Recourse Debt taking possession of the Non-Recourse Asset to which such debt relates) which property has a fair market value in excess of the Threshold Amount, or if execution or other similar process is enforced against such property and such taking of possession or enforcement is not being contested by such Loan Party in good faith and the encumbrancer or lienor remains in possession for any period of twenty (20) consecutive days; |
(m) | Change of Control: if a Change of Control has occurred without the consent of the Majority Lenders; |
(n) | Borrower Ownership: if (i) the Trust and the Designated Subsidiaries (or any one or more of them) cease to collectively own at least 90.1% of the shares and other equity interests of the Borrower, or (ii) any person (other than the Manager, the Trust or the Designated Subsidiaries) owns any shares or other equity interests in the Borrower; |
(o) | Ownership of Royalty Units, NPI or Intercompany Subordinated Debt: if (i) any person other than the Trust and the Designated Subsidiaries owns any Royalty Units; (ii) any person other than the Trust and the Designated Subsidiaries owns any of the NPI; or (iii) except as a result of any sales, assignments or transfers permitted by Section 8.1(x), 8.1(y) and 8.1(z), the Trust ceases to hold 100% of the Intercompany Subordinated Debt; or |
(p) | Breach of Other Covenants: if there is a breach or failure of due performance by a Loan Party of any covenant or provision of any of the Loan Documents (other than those heretofore dealt with in this Section 9.1) for a period of thirty (30) days after written notice of such breach or failure shall have been given by the Agent to the Borrower. |
(a) | declare the Total Commitment and each Lender’s Commitment and the right of the Borrower to apply for further Accommodations to be terminated; and |
(b) | declare all indebtedness and liabilities (whether matured or unmatured) of the Borrower outstanding to the Lenders hereunder (including the face amount of all Bankers’ Acceptances and the amount of all BA Equivalent Advances and the undrawn amount of all outstanding Letters of Credit) to be immediately due and payable (or to be due and payable at such later time as may be stated in such notice) without further demand, presentation, protest or other notice of any kind, all of which are expressly waived by the Borrower; |
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(a) | firstly, in or towards payment of any fees or expenses then due and payable to the Agent hereunder; |
(b) | secondly, rateably among the Lenders, the Operating Lender and the Swap Lenders in respect of amounts due and payable to the Lenders, the Operating Lender and the Swap Lenders as and by way of recoverable expenses hereunder, under the Operating Credit Agreement and under any Swap Agreement to which any Swap Lender is a party; |
(c) | thirdly, rateably among the Lenders and the Operating Lender in respect of amounts due and payable to the Lenders by way of interest pursuant to Sections 5.1, 5.2 and 5.3, acceptance fees pursuant to Section 5.4, Letter of Credit fees pursuant to Section 5.5, interest on overdue amounts pursuant to Section 5.6 and standby fees pursuant to Section 5.7 and similar amounts due and payable to the Operating Lender under the Operating Credit Agreement; |
(d) | fourthly, rateably among the Lenders and the Operating Lender in respect of any other amount (other than Borrowings and Operating Borrowings) not hereinbefore referred to in this Section 9.4 which are then due and payable by the Borrower hereunder or under the Operating Credit Agreement; and |
(e) | fifthly, rateably among the Lenders, the Operating Lender and the Swap Lenders in or towards repayment to the Lenders, the Operating Lender and the Swap Lenders of the Borrowings then outstanding, the Operating Borrowings then outstanding and the Swap Indebtedness then outstanding, subject to any adjustments required to be made in accordance with the provisions of Section 11.11; and |
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(f) | any balance remaining to the Borrower or as otherwise required by applicable law. |
(a) | the specific performance of any covenant or agreement contained in the Loan Documents; | |
(b) | enjoining a violation of any of the terms of the Loan Documents; | |
(c) | aiding in the exercise of any power granted by the Loan Documents or by law; or | |
(d) | obtaining and recovering judgment for any and all amounts due in respect of the Borrowings or amounts otherwise due hereunder or under the Loan Documents. |
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EXPENSES AND INDEMNITIES
(a) | subjects a Lender to any Tax, or changes the basis of taxation (through Taxes) of payments due to such Lender or increases any existing Tax, on payments of principal, interest or other amounts payable by the Borrower to such Lender under this Agreement; |
(b) | imposes, modifies or deems applicable any reserve, special deposit, capital adequacy, regulatory or similar requirement against assets or liabilities held by, or deposits in or for the account of, or loans to, or any other acquisition of funds for loans or commitments to fund loans or obligations in respect of bankers’ acceptances accepted by a Lender or letters of credit issued by a Lender; or |
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(a) | adequate and fair means do not exist for ascertaining the rate of interest on such Libor Loan; |
(b) | the cost to such Lender of making, funding or maintaining such Libor Loan does not accurately reflect the effective cost to such Lender thereof and the costs to such Lender are increased or the income receivable by such Lender is reduced in respect of such Libor Loan; |
(c) | the making or the continuation of such Libor Loan or a portion of such Libor Loan by such Lender has become impracticable by reason of circumstances which materially and adversely affect the London interbank market; or |
(d) | deposits in U.S. Dollars are not available to such Lender in the London interbank market in sufficient amounts in the ordinary course of business for the applicable Libor Interest Period to make, fund or maintain such Libor Loan during such Libor Interest Period; |
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THE AGENT AND THE LENDERS
(a) | Information: to check or inquire on its behalf into the adequacy, accuracy or completeness of any information provided by the Borrower or in connection with the Loan Documents (whether or not such information has been or is hereafter circulated to such Lender by the Agent); |
(b) | Performance: to inquire as to the performance by the Borrower or any other Loan Party of its obligations under the Loan Documents; or |
(c) | Credit Review: to assess or keep under review on its behalf the financial condition, creditworthiness, affairs, status or nature of the Borrower or any other Loan Party. |
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(a) | result in any other Lender incurring any liability whatsoever; nor |
(b) | relieve the Borrower or any other Lender from their respective obligations under any Loan Document. |
(a) | Lenders’ Determinations: Where the provisions of this Agreement provide that any waiver of or any amendment to any provision of the Loan Documents may be made or any action, consent or other determination in connection with the Loan Documents may be taken or given, with the consent or agreement of the Majority Lenders or “the Lenders” and not “all the Lenders”, then any such waiver, amendment, action, consent or determination so made, so taken or so given with the consent or agreement of the Majority Lenders shall be binding on all of the Lenders and all of the Lenders shall cooperate in all ways necessary or desirable to implement and effect such waiver, amendment, action, consent or determination. |
(b) | Deemed Non-Consent: If the Agent delivers a written notice to a Lender requesting advice from such Lender as to whether it consents or objects to any matter in connection with the Loan Documents, then, except as otherwise expressly provided herein, if such Lender does not deliver to the Agent its written consent or objection to such matter within fifteen (15) Business Days of the delivery of such written notice by the Agent to such Lender, such Lender shall be deemed not to have consented thereto upon the expiry of such fifteen (15) Business Day period. |
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(a) | Loan Participation: each Lender will make its share of Accommodations by way of Loans available to the Borrower at the Agent’s Account for Payments by forwarding to the Agent the amount of Loans required to be made available by such Lender; |
(b) | Bankers’ Acceptance Participation: each Lender will make available to the Borrower its share of Accommodations by way of Bankers’ Acceptances (or BA Equivalent Advances) by forwarding to the Agent at the Agent’s Account for Payments the amount of: |
(i) | if such Lender is not a Purchasing Lender, the discounted proceeds of sale of such Bankers’ Acceptances received by such Lender or the amount of any BA Equivalent Advance (less, in each case, the amount of applicable fees payable by the Borrower to such Lender pursuant to Section 5.4); or | ||
(ii) | if such Lender is a Purchasing Lender, the Discount Proceeds in respect of such Bankers’ Acceptances and BA Equivalent Advances (less, in each case, the amount of applicable fees payable by the Borrower to such Lender pursuant to Section 5.4); and |
(c) | Letter of Credit Participation: each Lender and the Issuing Lender, as applicable, will make available to the Borrower the Letter of Credit requested by the Borrower at its Branch of Account. |
(a) | Prior to Acceleration: Prior to the delivery of an Acceleration Notice or the occurrence of an Insolvency Event, upon receipt by the Agent of payments from the Borrower on account of principal, interest, fees or any other amount paid to the Agent on behalf of the Lenders, the Agent shall pay over to each Lender at its Branch of Account the amount to which it is entitled under this Agreement and shall use its best efforts to make such payment to such Lender on the same Business Day on which such payment is received by the Agent. If the Agent does not remit any |
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such payment to a Lender on the same Business Day as such payment is received by the Agent, the Agent shall pay interest thereon to such Lender until the date of payment at a rate determined by the Agent (such rate to be conclusive and binding on such Lender) in accordance with the Agent’s usual banking practice in respect of deposits of amounts comparable to the amount of such payment which are received by the Agent at a time similar to the time at which such payment is received by the Agent. |
(b) | Subsequent to Demand and Acceleration: Following the delivery of an Acceleration Notice or the occurrence of an Insolvency Event, the Lenders shall share any payments subsequently received in accordance with Section 9.4 of this Agreement. |
(a) | Where Borrower Fails to Pay: Unless the Agent has been notified in writing by the Borrower at least one (1) Business Day prior to the date on which any payment to be made by the Borrower hereunder is due that the Borrower does not intend to remit such payment, the Agent may, in its discretion, assume that the Borrower has remitted such payment when so due and the Agent may, in its discretion and in reliance upon such assumption, make available to each Lender on such payment date an amount equal to the amount of such payment which is due to such Lender pursuant to this Agreement. If the Borrower does not in fact remit such payment to the Agent, the Agent shall promptly notify each Lender and each such Lender shall forthwith on demand repay to the Agent the amount of such assumed payment made available to such Lender, together with interest thereon until the date of repayment thereof at a rate determined by the Agent (such rate to be conclusive and binding on such Lender) in accordance with the Agent’s usual banking practice for similar advances to financial institutions of like standing to such Lender. |
(b) | Where a Lender Fails to Pay: Unless the Agent has been notified in writing by a Lender at least one (1) Business Day prior to a Drawdown Date, Conversion Date or Rollover Date that such Lender does not intend to make available the amount required to be made available by such Lender pursuant to this Agreement on such Drawdown Date, Conversion Date or Rollover Date, the Agent may, in its discretion, assume that such Lender has remitted funds to the Agent in an amount equal to the amount required to be made available by such Lender pursuant to this Agreement and the Agent may, in its discretion and in reliance upon such assumption, make available to the Borrower on such Drawdown Date, Conversion Date or Rollover Date an amount equal to the amount required to be made available by such Lender pursuant to this Agreement. If such Lender does not in fact remit such funds to the Agent, the Agent shall promptly notify such Lender and such Lender shall forthwith remit such funds to the Agent, failing which: |
(i) | the Borrower shall on two (2) Business Days notice repay to the Agent (without prejudice to the Borrower’s rights against such Lender) the amount made available by the Agent on behalf of such Lender, in each case together with interest thereon until the date of repayment thereof at a rate determined by the Agent (such rate to be conclusive and binding on such Lender or the Borrower, as the case may be) in accordance with the Agent’s usual banking practice for similar advances to financial institutions of like standing to such Lender; and | ||
(ii) | without prejudice to the Borrower’s other rights against such Lender, Section 4.4(d)(i) or 4.4(d)(ii) shall, at the Borrower’s election, apply in regard to such Lender, mutatis mutandis, as if such Lender were an Affected Lender. |
82
(a) | Adjustments to Outstanding Borrowings: Each Lender agrees (and the Agent agrees for and on behalf of Royal in its capacity as Operating Lender) that, after the delivery of an Acceleration Notice or the occurrence of an Insolvency Event, it will at any time and from time to time upon the request of the Agent as required by any Lender or the Operating Lender purchase portions of the Borrowings made available by the other Lenders and the Operating Borrowings which, in any case, remain outstanding and make any other adjustments which may be necessary or appropriate, in order that the amount of Borrowings made available by each Lender which remain outstanding, and the Operating Borrowings which remain outstanding, as adjusted pursuant to this Section 11.11, will be in the same proportion as its Lender’s Proportion (calculated pursuant to item (b) of the definition thereof) of the sum of the aggregate Borrowings under this Agreement and the Operating Borrowings then outstanding. |
(b) | Application of Payments: The Lenders agree that, after the delivery of an Acceleration Notice or the occurrence of an Insolvency Event, the amount of any repayment made by the Borrower in respect of Borrowings under this Agreement, and under the Operating Credit Agreement, and the amount of any proceeds from the exercise of any rights or remedies of the Agent and the Lenders under the Loan Documents, or under the Operating Loan Documents, which are to be applied against amounts owing hereunder, will be so applied in a manner so that to the extent possible the amount of Borrowings made available by each Lender which remain outstanding and the Operating Borrowings which remain outstanding, after giving effect to such application will be in the same proportion as its Lender’s Proportion (calculated pursuant to item (b) of the definition thereof) of the sum of the aggregate Borrowings under this Agreement and the Operating Borrowings then outstanding. |
(c) | Receipt of Payments other than Borrowings: Notwithstanding anything contained in this Section 11.11, there shall not be taken into account for the purposes of computing any amount payable to any Lender pursuant to this Section 11.11, any amount which a Lender receives as a result of any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of any monies owing by the Borrower to such Lender other than on account of liabilities arising under the Loan Documents; provided that, if at any time a Lender receives any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on account of monies owing or payable to it by the Borrower in respect of liabilities of the Borrower arising under the Loan Documents, such Lender shall purchase portions of the Borrowings made available by the other Lenders which remain outstanding to the extent required pursuant to Section 11.11(a). |
(d) | Further Assurances: The Borrower agrees to be bound by and, at the request of the Agent, to do all things necessary or appropriate to give effect to any and all purchases and other adjustments made by and between the Lenders pursuant to this Section 11.11 but shall incur no increased liabilities, in aggregate, by reason thereof. |
(a) | Unanimous Consent: Any waiver of or any amendment to a provision of the Loan Documents which relates to: |
(i) | a change in the types of Borrowings or interest periods related thereto, interest rates, standby fees, the Margin, notice periods or the amount of any payments payable by the Borrower to the Lenders under this Agreement and including any waiver of the time of |
83
payment of any amounts payable to the Lenders under this Agreement including, without limitation, the provisions of Section 9.1(a); |
(ii) | an increase or decrease in the Commitment of any Lender other than as contemplated herein; | ||
(iii) | an assignment or transfer by the Borrower of any of its rights and obligations under this Agreement; | ||
(iv) | a change in the definition of Majority Lenders or Maturity Date or any other definition to the extent relevant to any of the provisions of this Section 11.12(a); | ||
(v) | any matter which, pursuant to the Loan Documents, specifically requires the consent or agreement of all of the Lenders; | ||
(vi) | the provisions of Section 8.1(t), 11.12(a) or 11.12(b); or | ||
(vii) | any release or material amendment to the Loan Party Guarantee or the Subordination Agreement; |
shall bind the Lenders only if such waiver or amendment is agreed to in writing by all of the Lenders. |
(b) | Majority Consent: Subject to Section 11.12(a) and except as otherwise provided in the Loan Documents, any waiver of or any amendment to any provision of the Loan Documents and any action, consent or other determination in connection with the Loan Documents shall bind all of the Lenders if such waiver, amendment, action, consent or other determination is agreed to in writing by the Majority Lenders. |
(c) | Agent’s Consent: Any waiver of or any amendment to any provision of the Loan Documents which relates to the rights or obligations of the Agent shall require the agreement of the Agent thereto. |
(a) | Agent’s Reliance: The Agent shall be entitled: |
(i) | Reliance on Written Documents: to rely upon any writing, letter, notice, certificate, telex, facsimile copy, cable, statement, order or other document believed by the Agent to be genuine and correct and to have been signed, sent or made by the proper person or persons; |
84
(ii) | Reliance on Legal Advice: with respect to legal matters, to act upon the advice of legal advisors selected by the Agent concerning all matters pertaining to the Loan Documents and the Agent’s duties thereunder; and | ||
(iii) | Reliance on Accounting Advice: with respect to accounting matters, to act upon the advice of independent public accountants selected by the Agent; |
(b) | Lender’s Reliance: Each Lender shall be entitled: |
(i) | Reliance on Written Documents: to rely upon any writing, letter, notice, certificate, telex, facsimile copy, cable, statement, order or other document believed by such Lender to be genuine and correct and to have been signed, sent or made by the proper person or persons; | ||
(ii) | Reliance on Legal Advice: with respect to legal matters, to act upon the advice of legal advisors selected by such Lender concerning all matters pertaining to the Loan Documents and such Lender’s duties thereunder; and | ||
(iii) | Reliance on Accounting Advice: with respect to accounting matters, to act upon the advice of independent public accountants selected by such Lender; |
85
86
SUCCESSORS AND ASSIGNS AND JUDGMENT CURRENCY
87
(a) | each of the Lenders and the Agent may disclose all or any part of the Information if, in its reasonable opinion, such disclosure is required by any applicable law or regulation, or by applicable order, policy or directive having the force of law, to the extent of such requirement, or is required in connection with any actual or threatened judicial, administrative or governmental proceeding, including, without limitation, proceedings initiated under or in respect of this Agreement, provided that in any such circumstance the Lenders and Agent, as soon as reasonably practicable, shall advise the Borrower of their obligation to disclose such Information in order to enable the Borrower, if it so chooses, to attempt to ensure that any such disclosure is made on a confidential basis; |
(b) | each of the Lenders and the Agent may disclose Information to each other and to any Permitted Assignees or participants and to their respective counsel, agents, employees and advisors; provided that in the case of a participant, the participant has provided the Agent or the applicable Lender with the written agreement referred to in Section 12.3(c) and, in the case of any such agents and advisors, the Agent or the applicable Lender shall advise such person of the confidential nature of the Information; |
(c) | each of the Lenders and the Agent may disclose and discuss the Information with credit officers of any potential Permitted Assignees for the purposes of assignment pursuant to Section 12.1 or any participant for the purposes of a participation; provided that such potential Permitted Assignee or participant shall have, for the benefit of the Borrower, previously provided to the Agent or such Lender, as the case may be, its written agreement to hold the Information under the same obligations of confidentiality as set forth in this Section 12.3 at all times prior to and, if applicable, after becoming a Permitted Assignee or participant; |
(d) | each of the Lenders and the Agent may disclose all or any part of the Information so as to enable such Lender or the Agent to initiate any lawsuit against the Borrower or any other Loan Party or to defend any lawsuit commenced by the Borrower or any other Loan Party with respect to or arising from the Loan Documents, the issues of which are directly or indirectly related to the |
88
Information, but only to the extent such disclosure is necessary or desirable to the initiation or defense of such lawsuit; and |
(e) | each of the Lenders and the Agent may disclose Information to any person with the prior written consent of the Borrower. |
(f) | which is or becomes readily available to the public (other than by a breach hereof or by a breach of an obligation of confidentiality imposed on a Permitted Assignee or participant or other person referred to in this Section 12.3) or which has been made readily available to the public by the Borrower or any other Loan Party; |
(g) | which the Agent or any Lender can show was, prior to receipt thereof from the Borrower, lawfully in the Agent’s or such Lender’s possession and not then subject to any obligation on its part to or for the benefit of the Borrower to maintain confidentiality; or |
(h) | which the Agent or any Lender received from a third party, prior to receipt thereof from the Borrower, which was not, to the knowledge of the Agent or such Lender after due enquiry, subject to a duty of confidentiality to or for the benefit of the Borrower at the time the Information was so received. |
MISCELLANEOUS
89
90
(a) | Submission: The Borrower, the Lenders and the Agent agree that the courts of the Province of Alberta have jurisdiction to settle any disputes in connection with the Loan Documents and accordingly each of them submits to the jurisdiction of the courts of the Province of Alberta. |
(b) | Forum Convenience and Enforcement Abroad: The Borrower, the Agent and each of the Lenders: |
(i) | waive objection to the courts of the Province of Alberta on grounds of inconvenient forum or otherwise as regards proceedings in connection with a Loan Document; and | ||
(ii) | agree that a judgment or order of a court of the Province of Alberta in connection with a Loan Document is conclusive and binding on it (subject to any rights of appeal in respect thereof) and may be enforced against it in the courts of any other jurisdiction. |
(c) | Non-exclusivity: Nothing in this Section 13.11 limits the right of the Borrower, a Lender or the Agent to bring proceedings against any party hereto in connection with any Loan Document: |
(i) | in any other court of competent jurisdiction; or | ||
(ii) | concurrently in more than one jurisdiction. |
91
COMMITMENTS AND |
||||||
ADDRESS FOR NOTICES: |
||||||
Borrower: | PENGROWTH CORPORATION | |||||
BP Centre |
||||||
2900, 240 – 0xx Xxxxxx X.X.
|
Per: | (Signed) “Xxxxxxxxxxx Xxxxxxx” | ||||
Calgary, Alberta | Name: Xxxxx Xxxxxxx | |||||
T2P 4H4 | Title: Chief Financial Officer | |||||
Attention: Chief Financial Officer |
||||||
Per: | (Signed) “Xxxxx Xxxxxx” | |||||
Telecopier: (000) 000-0000 | Name: Xxxxx Xxxxxx | |||||
Title: Treasurer |
92
PENGROWTH ENERGY TRUST, by its trustee, COMPUTERSHARE TRUST COMPANY OF CANADA | PENGROWTH HOLDINGS TRUST, by its trustee, PENGROWTH CORPORATION | |||||||
Per:
|
(Signed) “Xxxxx Xxxxxxx” | Per: | (Signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name:
|
Xxxxx Xxxxxxx
|
Name: | ||||||
Title:
|
Manager, Corporate Trust | Title: | Chief Financial Officer | |||||
Per: |
(Signed) “Xxxxx Xxxxx” | |||||||
Name:
|
Xxxxx Xxxxx
|
|||||||
Title: |
Professional, Corporate Trust | |||||||
STELLAR RESOURCES LIMITED | 1268071 ALBERTA LTD. | |||||||
Per:
|
(Signed) “Xxxxxxxxxxx Xxxxxxx” | Per: | (Signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name:
|
Name: | |||||||
Title:
|
Chief Financial Officer | Title: | Vice President | |||||
3174792 NOVA SCOTIA COMPANY | 3174793 NOVA SCOTIA COMPANY | |||||||
Per:
|
(Signed) “Xxxxxxxxxxx Xxxxxxx” | Per: | (Signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name:
|
Name: | |||||||
Title:
|
Vice President | Title: | Vice President |
93
ESPRIT EXCHANGECO LTD. | ESPRIT EXPLORATION LTD. | |||||||
Per:
|
(signed) “Xxxxxxxxxxx Xxxxxxx” | Per: | (signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name: |
Name: | |||||||
Title: |
Chief Financial Officer | Title: | Chief Financial Officer | |||||
PENGROWTH ENERGY PARTNERSHIP, by its general partner, STELLAR RESOURCES LIMITED | PENGROWTH HEAVY OIL PARTNERSHIP by its general partner, STELLAR RESOURCES LIMITED | |||||||
Per:
|
(signed) “Xxxxxxxxxxx Xxxxxxx” | Per: | (signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name: |
Name: | |||||||
Title: |
Chief Financial Officer | Title: | Chief Financial Officer | |||||
CRISPIN ENERGY PARTNERSHIP, by its managing partner, STELLAR RESOURCES LIMITED | XXXXXX CREEK OPERATING PARTNERSHIP, by its managing partner, 3174793 NOVA SCOTIA COMPANY | |||||||
Per: |
(signed) “Xxxxxxxxxxx Xxxxxxx” | Per: | (signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name: |
Name: | |||||||
Title: |
Chief Financial Officer | Title: | Vice President | |||||
1275708 ALBERTA LTD. | 1265707 ALBERTA ULC | |||||||
Per:
|
(signed) “Xxxxxxxxxxx Xxxxxxx” | Per: | (signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name: |
Name: | |||||||
Title: |
Vice President | Title: | Vice President | |||||
1265706 ALBERTA ULC | 1265702 ALBERTA ULC | |||||||
Per: |
(signed) “Xxxxxxxxxxx Xxxxxxx” | Per: | (signed) “Xxxxxxxxxxx Xxxxxxx” | |||||
Name: |
Name: | |||||||
Title: |
Vice President | Title: | Vice President |
94
706-707 PARTNERSHIP, by its managing partner, 1265706 ALBERTA ULC | ||||||||
Per: |
(Signed) “Xxxxxxxxxxx Xxxxxxx” | |||||||
Name:
|
||||||||
Title:
|
Vice President |
Lender: | ROYAL BANK OF CANADA, as Lender | |||||
Suite 1100, 888 – 0xx Xxxxxx X.X.
|
Per: | (Signed) “Xxxx Xxxx” | ||||
Calgary, Alberta
|
Name: | |||||
T2P 5C5
|
Title: | Authorized Signatory | ||||
Attention: Senior Manager |
||||||
Telecopier: (000) 000-0000 |
||||||
Commitment: Cdn. $ REDACTED |
96
Lender: | BANK OF MONTREAL, as Lender | |||||
2200, 000 — 0xx Xxxxxx X.X. |
||||||
Xxxxxxx, Xxxxxxx |
Per: | (signed) “Xxxx Xxxx” | ||||
X0X 0X0 |
Name: | Xxxx Xxxx | ||||
Title: | Director | |||||
Attention: Vice-President |
||||||
Telecopier: (000) 000-0000 |
||||||
Commitment: Cdn. $ REDACTED |
97
Lender: | THE BANK OF NOVA SCOTIA, as Lender | |||||
2000, 000 - 0xx Xxxxxx X.X. |
||||||
P.O. Box 2540 |
Per: | (signed) “Xxxx Xxxxxx” | ||||
Xxxxxxx, Xxxxxxx, X0X 0X0 |
Name: | |||||
Title: | Associate Director | |||||
Attention: Managing Director |
||||||
Per: | (signed) “Xxxxxx Strike” | |||||
Telecopier: (000) 000-0000 |
Name: | Xxxxxx Strike | ||||
Title: | Director | |||||
Commitment: Cdn. $ REDACTED |
98
Lender: | CANADIAN IMPERIAL BANK OF COMMERCE, as Lender | |||||
Oil and Gas Group |
||||||
000 - 0xx Xx. X.X., 0xx floor |
||||||
(East Tower, Bankers Hall) |
Per: | (signed) “Xxxxx Xxxxx” | ||||
Calgary, Alberta |
Name: | |||||
T2P 2P2 |
Title: | Executive Director | ||||
Attention: Vice President |
||||||
Per: | (signed) “Xxxxx Xxxxx” | |||||
Telecopier: (000) 000-0000 |
Name: | |||||
Title: | Managing Director | |||||
Commitment: Cdn. $ REDACTED |
99
Lender: | HSBC BANK CANADA, as Lender | |||||
0xx Xxxxx, 000 – 0xx Xxxxxx, X.X. |
||||||
Xxxxxxx, Xxxxxxx, X0X 0X0 |
Per: | (signed) “Xxxx Xxxxxxx” | ||||
Name: | ||||||
Attention: Corporate & Institutional Banking |
Title: | Director | ||||
Telecopier: (000) 000-0000 |
||||||
Per: | (signed) “Xxxxx Xxxxx” | |||||
Commitment: Cdn. $ REDACTED |
Name: | |||||
Title: | Relationship Manager |
100
Lender: | THE TORONTO-DOMINION BANK, as Lender | |||||
Corporate Banking |
||||||
800, 000 - 0xx Xxxxxx X.X.
|
Per: | (signed) “Xxxxxxx Xxxxxxxx” | ||||
Calgary, Alberta
|
Name: | |||||
X0X 0X0
|
Title: | Vice-President & Director | ||||
Attention: Vice President – Corporate Credit
|
Per: | |||||
Name: | ||||||
Telecopier: (000) 000-0000
|
Title: | |||||
Commitment: Cdn. $ REDACTED |
000
Xxxxxx: | XXXXXXXX XXXX XX XXXXXX, as Lender | |||||
Corporate Banking |
||||||
Suite 2802, 450 — 0xx Xxxxxx, X.X.
|
Per: | (signed) “Xxxx Xxxxxxx” | ||||
Xxxxxxx, Xxxxxxx, X0X 0X0
|
Name: | |||||
Title: | Senior Manager | |||||
Attention: Senior Manager |
||||||
Telecopier: (000) 000-0000
|
Per: | (signed) “Xxxx Xxxxxxx” | ||||
Name: | ||||||
Commitment: Cdn. $ REDACTED
|
Title: | Manager |
102
Lender: | ALBERTA TREASURY BRANCHES, as Lender | |||||
000 – 0xx Xxxxxx, X.X. |
||||||
Xxxxxxx, Xxxxxxx, X0X 0X0
|
Per: | (signed) “Xxxxxx Xxxxxxxx” | ||||
Name: | ||||||
Attention: Relationship Manager
|
Title: | Director | ||||
Telecopier: (000) 000-0000 |
||||||
Per: | (signed) “Xxxxx XxXxxxxx” | |||||
Commitment: Cdn. $ REDACTED
|
Name: | |||||
Title: | Account Manager |
103
Lender: | SOCIÉTÉ GÉNÉRALE (CANADA BRANCH), as Lender |
|||||
Suite 1800, 1501 XxXxxx Xxxxxxx Xxxxxx |
||||||
Xxxxxxxx, Xxxxxx X0X 0X0 |
||||||
Per: | (signed) “Xxxxxx Xxxxxxxxx” | |||||
Attention: Xxxxx Xxxxxxxx
|
Name: | Xxxxxx Xxxxxxxxx |
||||
Title: | Managing Director | |||||
Telecopier: (000) 000-0000 |
||||||
Per: | (signed) “Xxxx Xxxxxxxxx” | |||||
Commitment: Cdn. $ REDACTED |
Name: | Xxxx Xxxxxxxxx |
||||
Title: | Vice President |
000
Xxxxxx: | XXXXX XXXX XX XXXXXXXXXX,
X.X., XXXXXX BRANCH, as Lender |
|||||||
Xxxxx 000, 000 — 0xx Xxxxxx, X.X.
|
||||||||
Xxxxxxx, Xxxxxxx X0X 0X0 |
||||||||
Per: | (signed) “Xxxx Xxxxxx” | |||||||
Attention: Vice President
|
Name: | Xxxx
Xxxxxx
|
||||||
Title: | Senior Vice President | |||||||
Telecopier: (000) 000-0000 |
||||||||
Commitment: Cdn. $ REDACTED
|
||||||||
105
Lender: | FORTIS CAPITAL (CANADA) INC., as Lender | |||||
Calgary Xxxxx 0, Xxxxx 0000 |
||||||
000 — 0xx Xxxxxx, X.X.
|
Per: | (signed) “Xxxx Xxxxxx” | ||||
Xxxxxxx, Xxxxxxx X0X 0X0
|
Name: | Xxxx
Xxxxxx
|
||||
Title: | Director | |||||
Attention: |
||||||
Per: | (signed) “Xxxx Xxxxx” | |||||
Telecopier: (000) 000-0000
|
Name: | Xxxx
Xxxxx
|
||||
Title: | Assistant Vice President | |||||
Commitment: Cdn. $ REDACTED |
Administrative Agent: | ROYAL BANK OF CANADA, as Administrative Agent | |||||
Agency Services Group |
||||||
00xx Xxxxx, Xxxxx Xxxxx |
||||||
Xxxxx Xxxx Xxxxx |
Per: | (signed) “Xxx Xxxxxx” | ||||
000 Xxx Xxxxxx |
Name: | Xxx Xxxxxx |
||||
Xxxxxxx, Xxxxxxx, X0X 0X0 |
Title: | Manager, Agency | ||||
Attention: Manager, Agency |
||||||
Telecopier: (000) 000-0000 |
CANCELLATION OF TOTAL COMMITMENT
Agency Services Group
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
1. | Amount of [Accommodation, prepayment or repayment] [Cdn. $ or U.S. $]. | |
2. | Date of [Accommodation, repayment, prepayment and/or cancellation of Total Commitment]. | |
3. | [If applicable]. Nature of [Accommodation, repayment or prepayment] is by way of a [Cdn. Prime Loan, U.S. Base Rate Loan, Libor Loan, Bankers’ Acceptance and, if applicable, BA Equivalent Advance or Letter of Credit)]. | |
4. | [If applicable]. The amount of the Total Commitment to be cancelled is $ . | |
5. | [If applicable]. The Libor Interest Period for the Libor Loan is months. | |
6. | [If applicable] We hereby request that the [Lenders/Schedule II Lenders] purchase Bankers’ Acceptances at the applicable Discount Rate. | |
7. | [If applicable — when Lenders not purchasing Bankers’ Acceptances]. We will forward a Notice of Borrowing by way of Bankers’ Acceptance in the form of Schedule B to the Credit Agreement on [the Drawdown Date]. The term of each such Bankers’ Acceptance shall be for a period of days, maturing on . | |
8. | [If applicable — when Purchasing Lenders are purchasing Bankers’ Acceptance]. Please forward the funding particulars with respect to the Bankers’ Acceptance on [the Drawdown Date]. The |
2
term of each such Bankers’ Acceptance shall be for a period of days, maturing on . |
9. | [If applicable] Enclosed is a [Letter of Credit Application in the form of Schedule I to the Credit Agreement — in the case of a Letter of Credit issued under Section 3.8/Letter of Credit application and indemnity in the Issuing Lender’s customary form — in the case of a Letter of Credit issued under Section 3.9.] |
10. | We hereby confirm that each condition precedent referred to in Section 7.2 of the Credit Agreement in regard to a Drawdown Date is satisfied on the date hereof and will be satisfied on the Drawdown Date. |
Yours truly, | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Name: | ||||||
Title: | ||||||
Agency Services Group
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Bank Plaza, 000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Yours truly, | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Name: | ||||||
Title: | ||||||
2
Union | |||||||||||||||||||||||||||||||||||
The | Bank of | ||||||||||||||||||||||||||||||||||
Royal | The | Canadian | Bank | Société | California, | Fortis | |||||||||||||||||||||||||||||
Bank | Toronto- | National | Alberta | Imperial | HSBC | of | Générale | N.A., | Capital | ||||||||||||||||||||||||||
Name of | of | Bank of | Dominion | Bank of | Treasury | Bank of | Bank | Nova | (Canada | Canada | (Canada) | ||||||||||||||||||||||||
Lender | Canada | Montreal | Bank | Canada | Branches | Commerce | Canada | Scotia | Branch) | Branch | Inc. | ||||||||||||||||||||||||
Amount |
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Discount Rate |
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Price |
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Discount Proceeds |
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Acceptance Fee |
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Net Proceeds |
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Purchaser |
|||||||||||||||||||||||||||||||||||
Term |
|||||||||||||||||||||||||||||||||||
Agency Services Group
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
2
Yours truly, | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Name: | ||||||
Title: | ||||||
Agency Services Group
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Yours truly, | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Name: | ||||||
Title: | ||||||
1. | I am the [President, Chief Executive Officer, Chief Operating Officer, Chief Financial Officer or Treasurer] of Pengrowth Corporation (the “Borrower”); | |
2. | This Certificate applies to the Fiscal [Quarter/Year] ending , ___; |
3. | I am familiar with and have examined the provisions of the fifth amended and restated credit agreement (the “Credit Agreement”) dated as of June 15, 2007 between the Borrower and a syndicate of Lenders and Royal Bank of Canada as Administrative Agent and I have made such reasonable investigations of corporate records and inquiries of other officers and senior personnel of the Borrower and the other Loan Parties as I have deemed necessary for purposes of this Certificate; |
4. | No Default or Event of Default has occurred and is continuing [other than ]; |
5. | The Consolidated Senior Debt to EBITDA Ratio as of the end of this Fiscal [Quarter/Year] is to 1.0 and the details of the calculation thereof are attached hereto as Exhibit 1; |
6. | The Consolidated Total Debt to EBITDA Ratio as of the end of this Fiscal [Quarter/Year] is ___to 1.0 and the details of the calculation thereof are attached hereto as Exhibit 2. |
7. | The Consolidated Senior Debt to Capitalization Ratio as of the end of this Fiscal [Quarter/Year] is ___to 1.0 and the details of the calculation thereof are attached hereto as Exhibit 3. |
8. | The aggregate amount of outstanding Non-Recourse Debt of the Borrower and the other Loan Parties as of the end of this Fiscal [Quarter/Year] is Cdn. $ . |
9. | The Consolidated Tangible Assets of the Trust as shown on the most recent financial statements of the Trust is Cdn. $ . |
10. | Except where the context otherwise requires, all capitalized terms used herein have the same meaning as in the Credit Agreement; and |
11. | This Certificate is given by the undersigned officer in his capacity as an officer of the Borrower without any personal liability on the part of such officer. |
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PENGROWTH CORPORATION | ||||||
Per: | ||||||
Name: | ||||||
Title: | ||||||
TO:
|
Royal Bank of Canada, as Administrative Agent (the “Agent”) | |
AND TO:
|
Pengrowth Corporation (the “Borrower”) | |
RE:
|
Fifth Amended and Restated Credit Agreement (“Credit Agreement”) made as of June 15, 2007 between the Borrower, the Agent and a syndicate of Lenders |
1. | [name of new lender] (the “Assignee”) acknowledges that its proper officers have received and reviewed a copy of the Loan Documents and further acknowledges the provisions of the Loan Documents. |
2. | The Assignee desires to become a Lender under the Credit Agreement; [name of selling Lender] (the “Assignor”) has agreed to and does hereby sell, assign and transfer to the Assignee Cdn. $ of the Commitment of the Assignor such that the Commitment of the Assignee shall be Cdn. $ and of the Assignor shall be Cdn. $ ; and, accordingly, the Assignee has agreed to execute this Lender Transfer Agreement. |
3. | The Assignee, by its execution and delivery of this Lender Transfer Agreement, agrees that from and after the date hereof it shall be a Lender under the Credit Agreement and agrees to be bound by and to perform all of the terms, conditions and covenants of the Credit Agreement applicable to a Lender but its liability to make Borrowings shall be limited to its Commitment identified in paragraph 2 of this Lender Transfer Agreement. |
4. | The Assignee agrees to assume, without recourse to the Assignor, all liabilities and obligations of the Assignor as Lender under the Credit Agreement arising after the date hereof to the extent of the Assignee’s Commitment as provided for herein and the Assignor is hereby released and discharged from such obligations and liabilities to the same extent; provided that if any Bankers’ Acceptances accepted or Letters of Credit issued by the Assignor remain outstanding on such date, such Bankers’ Acceptances and Letters of Credit shall remain the liability and obligation of the Assignor and the Assignor shall be entitled to all of the rights, titles and benefits arising out of the Credit Agreement and the other Loan Documents with respect to such Bankers’ Acceptances and Letters of Credit (including reimbursement rights); provided, however, that the Assignee shall indemnify the Assignor and hold the Assignor harmless from and against any losses or costs paid or incurred by the Assignor in connection with such Bankers’ Acceptances and Letters of Credit (other than losses or costs which arise out of the gross negligence or willful misconduct of the Assignor) and shall be entitled to a proportionate amount of the fees paid in respect of such Bankers’ Acceptances and Letters of Credit as agreed between the Assignor and the Assignee. |
5. | The Assignee acknowledges and confirms that it has not relied upon and that none of the Assignor, the Agent or any of their respective directors, officers, employees or agents have made |
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any representation or warranty whatsoever as to the due execution, legality, effectiveness, validity or enforceability of any of the Loan Documents or any other documentation or information delivered by the Assignor or the Agent to the Assignee in connection therewith or for the performance thereof by any party thereto or of the financial condition of the Borrower or any other Loan Party. All representations, warranties and conditions express or implied by law or otherwise are hereby excluded. |
6. | The Assignee represents and warrants that it [is/is not] a non-resident within the meaning of the Income Tax Act (Canada) and that it has itself been, and will continue to be, solely responsible for making its own independent appraisal of and investigation into the financial condition, creditworthiness, affairs, status and nature of the Borrower and the other Loan Parties and has not relied and will not hereafter rely on the Assignor or the Agent or any of their respective directors, officers, employees or agents to appraise or keep under review on its behalf the financial condition, creditworthiness, affairs, status or nature of the Borrower or the other Loan Parties. |
7. | Each of the Assignor and the Assignee represents and warrants to the other, and to the Agent and the Lenders that it has the capacity and power to enter into this Lender Transfer Agreement in accordance with the terms hereof and to perform its obligations arising therefrom, and all actions required to authorize the execution and delivery hereof and the performance of such obligations have been duly taken. |
8. | This Lender Transfer Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada. |
9. | Notices shall be given to the Assignee in the manner provided for in the Credit Agreement as follows: |
[ ]
Telecopier: [ ]
10. | This Lender Transfer Agreement shall be binding upon the Assignee and its successors and permitted assigns. |
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[Name of Assignee] | ||||||
Per: | ||||||
[Name of Assignor] | ||||||
Per: | ||||||
ROYAL BANK OF CANADA, as agent | ||||||
Per: | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Agency Services Group
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
1. | except as disclosed to the Agent in writing, the representations and warranties contained in Article 2 of the Credit Agreement are true and correct on the date hereof and will be true and correct on the date of extension, as applicable, with the same effect as if such representations and warranties were made on such dates; and |
2. | neither the Borrower nor the Trust nor any Designated Subsidiary is in breach of any provision of the Loan Documents and no Default or Event of Default has occurred and is continuing. |
Yours truly, | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Name: | ||||||
Title: | ||||||
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PENGROWTH ENERGY TRUST, by its trustee, COMPUTERSHARE TRUST COMPANY OF CANADA | PENGROWTH HOLDINGS TRUST, by its trustee, PENGROWTH CORPORATION | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | Chief Financial Officer | ||||||
Per: |
||||||||
Name:
|
||||||||
Title: |
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STELLAR RESOURCES LIMITED | 1268071 ALBERTA LTD. | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Chief Financial Officer | Title: | Vice President | |||||
3174792 NOVA SCOTIA COMPANY | 3174793 NOVA SCOTIA COMPANY | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Vice President | Title: | Vice President | |||||
ESPRIT EXCHANGECO LTD. | ESPRIT EXPLORATION LTD. | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Chief Financial Officer | Title: | Chief Financial Officer |
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PENGROWTH ENERGY PARTNERSHIP, by its general partner, STELLAR RESOURCES LIMITED | PENGROWTH HEAVY OIL PARTNERSHIP by its general partner, STELLAR RESOURCES LIMITED | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Chief Financial Officer | Title: | Chief Financial Officer | |||||
CRISPIN ENERGY PARTNERSHIP, by its
managing partner, STELLAR RESOURCES LIMITED |
XXXXXX CREEK OPERATING PARTNERSHIP, by its managing partner, 3174793 NOVA SCOTIA COMPANY | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Chief Financial Officer | Title: | Vice President | |||||
1275708 ALBERTA LTD. | 1265707 ALBERTA ULC | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Vice President | Title: | Vice President | |||||
1265706 ALBERTA ULC | 1265702 ALBERTA ULC | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Vice President | Title: | Vice President | |||||
706-707 PARTNERSHIP, by its managing partner, 1265706 ALBERTA ULC |
1301253 ALBERTA LTD. | |||||||
Per:
|
Per: | |||||||
Name:
|
Name: | |||||||
Title:
|
Vice President | Title: | Vice President |
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702 PARTNERSHIP, by its managing partner, 1301253 ALBERTA LTD. | ||||||||
Per: |
||||||||
Name:
|
||||||||
Title:
|
Vice President | |||||||
[Revise list of Guarantors if necessary] |
1. | to sign for and on behalf and in the name of the Borrower as drawer, drafts in the Bank’s standard form (“Drafts”) which may be “depository bills” under and as defined in the Depository Bills and Notes Act (the “DBNA”) drawn on the Bank payable to the order of the Borrower or to the order of the Bank or to a “clearing house” under the DBNA or its nominee for deposit by the Bank with the “clearing house” after acceptance thereof by the Bank; |
2. | to sign for and on behalf and in the name of the Borrower as drawer, promissory notes in the Bank’s standard form for advances in the nature of BA Equivalent Advances (the “Notes”) payable to the Bank or its order evidencing BA Equivalent Advances made by the Bank to the Borrower pursuant to the Credit Agreement; and |
3. | to fill in the amount, date and maturity date of such Drafts or Notes; |
4. | a Canadian Dollar amount, which shall be the aggregate face amount of the Drafts to be accepted or BA Equivalent Advances to be made by the Bank in respect of a particular drawdown, Conversion or Rollover; |
5. | a specified period of time, as provided in the Credit Agreement, which shall be the number of days after the date of such Drafts or Notes that such Drafts or Notes are to be payable, and the dates of issue and maturity of such Drafts or Notes; and |
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6. | payment instructions specifying the account number of the Borrower and the financial institution at which the proceeds from the sale of such Drafts or the proceeds of such BA Equivalent Advances are to be credited. |
Agency Services Group
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
APPLICANT: | Pengrowth Corporation | |||||
2900, 000 – 0xx Xxxxxx X.X. | ||||||
Xxxxxxx, Xxxxxxx X0X 0X0 | ||||||
BENEFICIARY:
|
Name: | |||||
Address: | ||||||
Phone No.: | ||||||
AMOUNT:
|
Cdn. or U.S. $ | |||||
EXPIRY DATE: |
||||||
PURPOSE: |
||||||
(a) | [to be completed] |
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(b) | Certificate of the beneficiary confirming that drawings under the following [letters of credit or letters of guarantee] (which includes this [letter of credit or letter of guarantee]) are being made concurrently: |
[Letter of Credit or | ||||
Letter of Guarantee] | ||||
Issuing Lenders | Number | |||
Royal Bank of Canada |
||||
Bank of Montreal |
||||
The Toronto-Dominion Bank |
||||
National Bank of Canada |
||||
Alberta Treasury Branches |
||||
Canadian Imperial Bank of Commerce |
||||
HSBC Bank Canada |
||||
The Bank of Nova Scotia |
||||
Société Générale (Canada Branch) |
||||
Union Bank of California, N.A., Canada Branch |
||||
Fortis Capital (Canada) Inc. |
||||
[other Lenders] |
||||
(c) | if any drawing under this [letter of credit or letter of guarantee] is a partial drawing, a certificate of the beneficiary confirming that the amount of the partial drawing under this [letter of credit or letter of guarantee] is ___% of the total amount of drawings then being made under all of the foregoing [letters of credit or letters of guarantee]. |
Yours truly, | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Title: | ||||||