UP TO CDN. $600,000,000 BRIDGE CREDIT FACILITY CREDIT AGREEMENT BETWEEN: PENGROWTH CORPORATION (AS BORROWER) - AND - THE FINANCIAL INSTITUTIONS NAMED HEREIN IN THEIR CAPACITIES AS LENDERS (AS LENDERS) - AND - ROYAL BANK OF CANADA (AS ADMINISTRATIVE...
BRIDGE CREDIT FACILITY
Xxxxxxx Xxxxx LLP
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ARTICLE 1 |
INTERPRETATION | 1 | ||
1.1 |
Definitions | 1 | ||
1.2 |
Headings and Table of Contents | 27 | ||
1.3 |
References | 27 | ||
1.4 |
Rules of Interpretation | 27 | ||
1.5 |
Generally Accepted Accounting Principles | 27 | ||
1.6 |
Time | 28 | ||
1.7 |
Payment for Value | 28 | ||
ARTICLE 2 |
REPRESENTATIONS AND WARRANTIES | 28 | ||
2.1 |
Representations and Warranties | 28 | ||
2.2 |
Deemed Representation and Warranty | 32 | ||
ARTICLE 3 |
THE CREDIT FACILITY | 32 | ||
3.1 |
Obligations of Each Lender | 32 | ||
3.2 |
Purpose | 33 | ||
3.3 |
Borrowings | 33 | ||
3.4 |
Selection of Libor Interest Periods | 34 | ||
3.5 |
Conditions Applicable to Bankers' Acceptances and BA Equivalent | 34 | ||
Advances | ||||
3.6 |
Agent's Duties re Bankers' Acceptances and BA Equivalent Advances | 38 | ||
3.7 |
Notice of Repayment | 39 | ||
3.8 |
Pro-Rata Treatment of Borrowings | 39 | ||
3.9 |
Conversion Option | 40 | ||
3.10 |
Rollovers | 40 | ||
3.11 |
Notices Irrevocable | 41 | ||
ARTICLE 4 |
REPAYMENT AND PREPAYMENT | 41 | ||
4.1 |
Repayment of Borrowings | 41 | ||
4.2 |
Mandatory Prepayments and Reductions in Total Commitment | 41 | ||
4.3 |
Repayment of Borrowings due to Exchange Rate Fluctuations | 42 | ||
4.4 |
Voluntary Prepayment | 42 | ||
4.5 |
Cancellation of a Lender's Commitment | 42 | ||
4.6 |
Early Repayment of Bankers' Acceptances and Libor Loans | 43 | ||
4.7 |
Evidence of Indebtedness | 43 | ||
ARTICLE 5 |
PAYMENT OF INTEREST AND FEES | 44 | ||
5.1 |
Interest on Cdn. Prime Loans | 44 | ||
5.2 |
Interest on U.S. Base Rate Loans | 44 | ||
5.3 |
Interest on Libor Loans | 44 | ||
5.4 |
Bankers' Acceptance Fees | 45 | ||
5.5 |
Interest on Overdue Amounts | 45 | ||
5.6 |
Agent's Fees | 45 | ||
5.7 |
Commitment Fees | 45 | ||
5.8 |
Maximum Rate Permitted by Law | 46 | ||
5.9 |
Waiver | 46 | ||
5.10 |
Interest Adjustment | 46 |
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5.11 |
Nominal Rates | 46 | ||
ARTICLE 6 |
PAYMENT AND TAXES | 47 | ||
6.1 |
Time, Place and Currency of Payment | 47 | ||
6.2 |
Application of Payments Prior to an Event of Default | 47 | ||
6.3 |
Taxes | 47 | ||
6.4 |
Account Debit Authorization | 48 | ||
ARTICLE 7 |
CONDITIONS PRECEDENT TO DISBURSEMENT OF THE BORROWINGS AND
UNDERTAKING TO DELIVER DOCUMENTS AFTER ACQUISITION |
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48 | ||||
7.1 |
Conditions Precedent | 48 | ||
7.2 |
Continuing Conditions Precedent | 50 | ||
7.3 |
Waiver of a Condition Precedent | 51 | ||
7.4 |
Undertaking to Deliver Documents after Acquisition | 51 | ||
ARTICLE 8 |
COVENANTS OF THE BORROWER | 51 | ||
8.1 |
Positive Covenants of the Borrower | 51 | ||
8.2 |
Negative Covenants of the Borrower | 57 | ||
8.3 |
Financial Covenants | 59 | ||
ARTICLE 9 |
EVENTS OF DEFAULT | 60 | ||
9.1 |
Events of Default | 60 | ||
9.2 |
Acceleration and Demand | 63 | ||
9.3 |
Waiver of Default | 63 | ||
9.4 |
Application of Payments Following Demand and Acceleration | 63 | ||
9.5 |
Remedies Cumulative | 64 | ||
9.6 |
Set-Off | 64 | ||
9.7 |
Cash Collateral Accounts | 65 | ||
9.8 |
Lenders May Perform Covenants | 65 | ||
ARTICLE 10 |
EXPENSES AND INDEMNITIES | 65 | ||
10.1 |
Reimbursement of Expenses and Indemnity | 65 | ||
10.2 |
Increased Cost | 65 | ||
10.3 |
Illegality | 66 | ||
10.4 |
Substitute Basis of Borrowing | 67 | ||
10.5 |
Funding Indemnity | 67 | ||
10.6 |
General Indemnity | 67 | ||
ARTICLE 11 |
THE AGENT AND THE LENDERS | 68 | ||
11.1 |
Authorization of Agent | 68 | ||
11.2 |
Responsibility of Agent | 68 | ||
11.3 |
Acknowledgment of Lenders | 68 | ||
11.4 |
Rights and Obligations of Each Lender | 69 | ||
11.5 |
Determinations by Lenders | 69 | ||
11.6 |
Notices between the Lenders, the Agent and the Borrower | 70 | ||
11.7 |
Agent's Duty to Deliver Documents Obtained from the Borrower | 70 | ||
11.8 |
Arrangements for Borrowings | 70 |
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11.9 |
Arrangements for Repayment of Borrowings | 70 | ||
11.10 |
Repayment by Lenders to Agent | 71 | ||
11.11 |
Adjustments Among Lenders | 72 | ||
11.12 |
Lenders' Consents to Waivers, Amendments, etc | 72 | ||
11.13 |
Reimbursement of Agent's Expenses | 73 | ||
11.14 |
Reliance by Agent and Lenders on Notices, etc | 73 | ||
11.15 |
Relations with Borrower | 74 | ||
11.16 |
Sharing of Information | 74 | ||
11.17 |
Successor Agent | 75 | ||
11.18 |
Amendment of this Article 11 | 75 | ||
11.19 |
Dealing with Agent | 75 | ||
11.20 |
Indemnity of Agent | 75 | ||
ARTICLE 12 |
SUCCESSORS AND ASSIGNS AND JUDGMENT CURRENCY | 76 | ||
12.1 |
Successors and Assigns | 76 | ||
12.2 |
Judgment Currency | 76 | ||
12.3 |
Exchange and Confidentiality of Information | 77 | ||
ARTICLE 13 |
MISCELLANEOUS | 78 | ||
13.1 |
Severability | 78 | ||
13.2 |
Survival of Undertakings | 78 | ||
13.3 |
Failure to Act | 78 | ||
13.4 |
Amendments | 78 | ||
13.5 |
Notice | 79 | ||
13.6 |
Further Assurances | 79 | ||
13.7 |
Governing Law | 79 | ||
13.8 |
Whole Agreement | 79 | ||
13.9 |
Term of Agreement | 79 | ||
13.10 |
Time of Essence | 79 | ||
13.11 |
Jurisdiction | 80 | ||
13.12 |
Counterpart Execution | 80 |
Schedule A |
Notice of Borrowing, Repayment or Prepayment | |
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 |
Power of Attorney Terms - Bankers' Acceptance | |
Schedule H |
Loan Party Guarantee | |
Schedule I |
Subordination Agreement |
(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; |
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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 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 |
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(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) | all indebtedness for borrowed money; | |
(b) | obligations 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 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 | ||
(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; |
(f) | actual amounts owed under Swap Agreements 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 from any accounts receivable securitization program; | |
(h) | indebtedness secured by any Security Interest existing on property owned, 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 (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; |
(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 Consolidated Senior 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; | |
(p) | deferred or future taxes of such person; | |
(q) | Consolidated Subordinated Debt; |
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(r) | Convertible Debt; and | |
(s) | 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; |
(a) | an initial final maturity or due date in respect of repayment of principal extending beyond the Maturity Date under this Agreement; | |
(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 Maturity Date under this Agreement; | |
(c) | upon and during the continuance of a Default, an Event of Default or acceleration of the time for repayment of any Bridge Indebtedness or Swap Indebtedness which has not been rescinded, (i) all |
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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 Bridge 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 liabilities of such person, or otherwise), all Bridge 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; and | |
(e) | the occurrence of a Default or Event of Default hereunder or the acceleration of the time for repayment of any Bridge Indebtedness or 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); |
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(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: |
(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; |
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(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 | |
(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; |
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(a) | debt issued by the Borrower to the Trust or to a direct or indirect wholly-owned Subsidiary, or issued by the Trust to the Borrower or to a direct or indirect wholly-owned Subsidiary, or issued by a direct or indirect wholly-owned Subsidiary to the Borrower, the Trust or another direct or indirect wholly-owned Subsidiary; | |
(b) | debt not exceeding Cdn. $950,000,000 issued by the Borrower pursuant to the credit facilities under the Term Credit Agreement or any extensions or replacements of such credit facilities; and | |
(c) | debt not exceeding Cdn. $35,000,000 issued by the Borrower pursuant to the credit facilities under the Operating Credit Agreement or any extensions or replacements of such credit facilities; |
(a) | any Permitted Disposition; and | |
(b) | any other sale or disposition by the Borrower, the Trust or any Subsidiary of assets or properties where the net proceeds of disposition of such assets or properties do not exceed Cdn. $20,000,000 and where the net proceeds of disposition of all assets or properties sold or otherwise disposed of pursuant to this subparagraph (b) since the closing of the Acquisition do not, in the aggregate, exceed Cdn. $20,000,000; |
(a) | any equity securities issued by the Borrower to the Trust or issued by a Subsidiary to the Borrower, the Trust or a direct or indirect wholly-owned Subsidiary; | |
(b) | the offering of Trust Units under the prospectus dated December 1, 2006; | |
(c) | any issuance of Trust Units under the Trust’s dividend reinvestment plan; and | |
(d) | any issuance of Trust Units to officers, directors and employees of any Loan Party under existing option plans and other securities — based compensation plans; |
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Consolidated Senior Debt to EBITDA Ratio | ||||||||||
>1.00:1.00 | >1.50:1.00 | >2.00:1.00 | ||||||||
Type of | and | and | and | |||||||
Borrowing | <1.00:1.00 | <1.50:1.00 | <2.00:1.00 | <2.50:01.00 | >2.50:1.00 | |||||
Cdn. Prime Loans |
||||||||||
and U.S. Base Rate |
[REDACTED] | [REDACTED] | [REDACTED] | [REDACTED] | [REDACTED] | |||||
Loans |
||||||||||
Libor Loans and |
||||||||||
Bankers’
|
[REDACTED] | [REDACTED] | [REDACTED] | [REDACTED] | [REDACTED] | |||||
Acceptances |
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(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; |
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(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 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 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 |
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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; |
(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) 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, any 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 |
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in the aggregate, materially impair its use in the conduct of the business of such person taken as a whole; | ||
(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; | |
(1) | 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; | |
(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 and any Miscellaneous Encumbrances, is not at any time in excess of an amount equal to Cdn. [REDACTED] 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 and the Royalty Indenture provided that they are at all times fully and effectively subordinated to the Bridge Indebtedness and the Swap Indebtedness in all events and circumstances in the manner and to the extent contemplated by the Subordination Agreement; | |
(s) | any Security Interest granted to the Agent on behalf of the Lenders in respect of any cash cover as contemplated by Section 9.7; | |
(t) | any Security Interest from time to time disclosed by such person to the Agent and which is consented to by the Majority Lenders; | |
(u) | Purchase-Money Security Interests, 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 subsection (p) of this definition, shall not at any time be greater than Cdn. [REDACTED] or the Equivalent Amount thereof in any other currency; and | |
(v) | Miscellaneous Encumbrances, provided that the aggregate amount outstanding thereunder and under any Purchase-Money Security Interests, 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 Cdn. [REDACTED] or the Equivalent Amount thereof in any other currency; |
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(a) | Financial Assistance provided to a Loan Party; and | |
(b) | Financial Assistance (other than to 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; | |
(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, |
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(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 | |
(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; |
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(a) | the maturity date thereof shall be later than the Maturity Date 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 the 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 Maturity Date; | |
(c) | if a default occurs in respect of such debt, the holders of such debt are subject to a standstill period ending at least six months after the Maturity Date; and | |
(d) | the holders of such debt (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; |
(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 (½%); |
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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 |
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business as presently conducted and, in the case of the Borrower and AcquisitionCo, to complete the Acquisition; | ||
(e) | Authority: the execution, delivery and performance by each Loan Party of each of the Loan Documents to which it is a party and, in the case of the Borrower and AcquisitionCo, of each of the Acquisition 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, except those in respect of the Acquisition which have already been made or obtained and which are in full force and effect; |
(f) | Execution and Delivery of Loan Documents: each Loan Document to which each Loan Party is a party, and, in the case of the Borrower and AcquisitionCo, each Acquisition Document to which it 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, and, in the case of the Borrower and AcquisitionCo, each Acquisition Document to which it 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 | ||
(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 |
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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) | Consolidated Financial Position of the Borrower: the annual audited consolidated financial statements of the Borrower for the Fiscal Year most recently required to be delivered hereunder: |
(i) | fairly present in all material respects the consolidated financial condition of the Borrower as at the date thereof and the results of its operations for the period covered thereby; and | ||
(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 Borrower from that set forth in such financial statements as at such date which would reasonably be expected to have a Material Adverse Effect; | ||
(j) | 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, or, to the knowledge of the Borrower, pending or threatened against or affecting any Conoco Entity, which would reasonably be expected to have a Material Adverse Effect, or which challenge or contest the consummation of the Acquisition or the closing of the Acquisition contemplated by the Conoco Purchase Agreement and would have a reasonable likelihood of success; | |
(k) | Compliance with Laws and Contracts: each Loan Party and, to the knowledge of the Borrower, each Conoco Entity, 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; | |
(1) | Environmental Matters: each Loan Party and each Subsidiary and, to the knowledge of the Borrower, each Conoco Entity, 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 and, to the knowledge of the Borrower, each Conoco Entity, 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; |
(m) | Environmental Condition of Property: the properties and assets of each Loan Party and each Subsidiary and, to the knowledge of the Borrower, each Conoco Entity: |
(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; |
(n) | Events of Default: no Default or Event of Default has occurred which is continuing; |
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(o) | Title to Assets: subject only to Permitted Title Defects, each Loan Party and, to the knowledge of the Borrower, each Conoco Entity, 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; | |
(p) | Taxes: each Loan Party and, to the knowledge of the Borrower, each Conoco Entity, 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; | |
(q) | 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 Borrower and the Designated Subsidiaries, and of the Conoco Entities, are accurate as at the date prepared and fairly reflect the matters described therein; | |
(r) | 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; | |
(s) | Designated Subsidiaries: prior to the completion of the Acquisition, the Subtrust, the Energy Partnership, the Heavy Oil Partnership, Stellar, the Crispin Partnership, the Xxxxxx Creek Entities, Esprit Exploration, Esprit Exchangeco and AcquisitionCo are the only Designated Subsidiaries, and immediately after the completion of the Acquisition, the Subtrust, the Energy Partnership, the Heavy Oil Partnership, Stellar, the Crispin Partnership, the Xxxxxx Creek Entities, Esprit Exploration, Esprit Exchangeco, AcquisitionCo and the Conoco Entities will be the only Designated Subsidiaries; | |
(t) | Designated Subsidiaries Asset Test: as at the Effective Date, and both before and after the completion of the Acquisition, 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; | |
(u) | Royalty Units: the Trustee holds in excess of 99.9% of the Royalty Units; | |
(v) | Shares of Borrower: the Trustee 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; | |
(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 AcquisitionCo; | ||
(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; | ||
(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; and | ||
(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; |
(y) | Securities of Conoco Entities: as at the Effective Date and immediately after the completion of the Acquisition, AcquisitionCo will be 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 will be the only partners in the Conoco Partnership. |
THE CREDIT FACILITY
(a) | 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 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; and | ||
(ii) | Bankers’ Acceptances: either: |
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(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) 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. |
(b) | 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 if, after giving effect thereto, Borrowings from such Lender would at any time exceed its Commitment. | ||
(c) | Nature of Credit Facility: The Credit Facility shall be available by way of a single drawdown on the Acquisition Closing Date, and after the drawdown thereof, the Borrower may effect Conversions and Rollovers in respect thereof, but may not obtain further advances or increases in Borrowings. Any amount repaid may not be reborrowed. Any portion of the Credit Facility not drawn down on the Acquisition Closing Date shall be automatically cancelled and shall not be available for drawdown thereafter. | |
(d) | Ranking: All Bridge Indebtedness and Swap Indebtedness shall rank in right of payment in priority to the Intercompany Subordinated Debt, the Convertible Debt and the Subordinated Debt, and shall rank pari passu in right of payment to the Term Indebtedness and the Operating Indebtedness. |
(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; |
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(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; and | |
(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; |
(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 3.3, 3.9 and 3.10. 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 3.5(h), to require the applicable Lenders referred to in Section 3.5(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 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: 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 9:00 a.m. (Calgary time) on the |
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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 the 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 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 |
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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 G, 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 3.5(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; |
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(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 G 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 3.3, the face amount of such Bankers’ Acceptance shall be converted on its maturity to a Cdn. Prime Loan pursuant to Section 3.9. | |
(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; |
(i) | BA Equivalent Advances: Notwithstanding the foregoing provisions of this Section 3.5, 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 3.5(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 |
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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 3.5(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 3.5(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 3.5(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 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’ |
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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 3.5(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 3.6(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 G 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 3.6(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 G and the particulars advised by the Agent. |
(a) | Pro-Rata Borrowings: Subject to Section 3.8(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 |
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effect to the provisions of this Section 3.8(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 3.8(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 3.8(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 3.8. |
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REPAYMENT AND PREPAYMENT
(a) | from the sale or issue by the Borrower, the Trust or any Subsidiary of the Trust of any trust unit, equity or equity-like securities (including for greater certainty, convertible debentures or subscription receipts) after November 28, 2006, other than Excluded Equity Issues; | |
(b) | from any public or private debt financing (including, to the extent not included in Section 4.2(a), under any convertible debentures) entered into, incurred or obtained by the Borrower, the Trust or any Subsidiary of the Trust after November 28, 2006, other than Excluded Debt Issues; | |
(c) | as a result of any adjustments to or recalculations of the purchase price for the Conoco Shares (or indirectly of the Conoco Partnership) under the Conoco Purchase Agreement which result in a reduction of the purchase price, whether such adjustments or recalculations occur before or after the closing of the Acquisition, but excluding reductions arising from a working capital adjustment up to a maximum of Cdn. $30,000,000; and | |
(d) | from the sale or other disposition by the Borrower, the Trust or any Subsidiary of the Trust of any assets or properties (including for greater certainty, shares or other securities) on or after the closing of the Acquisition, other than Excluded Dispositions. |
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(i) | any amounts received in Cdn. Dollars shall firstly be applied to repay amounts outstanding as Cdn. Prime Loans, and thereafter, with respect to amounts outstanding as Bankers’ Acceptances, shall be held as cash cover in the manner provided for in Section 9.7 (and for greater certainty, applied towards satisfying the obligations of the Borrower relating to such Bankers’ Acceptances as they mature); and | ||
(ii) | any amounts received in U.S. Dollars shall firstly be applied to repay amounts outstanding as U.S. Base Rate Loans, and thereafter, shall be applied, subject to Section 4.6, to repay amounts outstanding as Libor Loans. |
(a) | 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; | |
(b) | Additional Compensation is payable by the Borrower to a Lender (but not to all of the Lenders) pursuant to Section 10.2; or | |
(c) | a Lender is affected by the provisions of Section 10.3 and all of the other Lenders are not so affected; |
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(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) | 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; | |
(b) | secondly, in payment of any amounts due and payable as and by way of the Agent’s fees referred to in Section 5.6; | |
(c) | thirdly, 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, and interest on overdue amounts pursuant to Section 5.5; and | |
(d) | fourthly, 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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CONDITIONS PRECEDENT TO DISBURSEMENT OF THE BORROWINGS
AND UNDERTAKING TO DELIVER DOCUMENTS AFTER ACQUISITION
(a) | as of the Effective Date, there exists no “Default” or “Event of Default” (under and as defined in the Term Credit 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 the Loan Party Guarantee from the Trust, the Subtrust, the Energy Partnership, the Heavy Oil Partnership, Stellar, the Crispin Partnership, each of the Xxxxxx Creek Entities, Esprit Exploration, Esprit Exchangeco and AcquisitionCo, each on a joint and several basis; |
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(iii) | a duly executed copy of the Subordination Agreement; | ||
(iv) | 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; | ||
(v) | partnership searches in respect of each Designated Subsidiary which is a partnership issued under the laws of its governing jurisdiction; | ||
(vi) | 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; (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; | ||
(vii) | an officer’s certificate of the Borrower attaching thereto, inter alia, each Material Contract; | ||
(viii) | a duly executed proforma Compliance Certificate as at September 30, 2006, prepared on the assumption that the Acquisition, as well as other material acquisitions (including for greater certainty, of the Xxxxxx Creek Entities and of Esprit Energy Trust and its Subsidiaries) and divestitures completed on or prior to the Acquisition Closing Date had closed on September 30, 2005, that the Credit Facility had been drawn down in full on September 30, 2005, and that any equity issuances or other debt financings that were completed on or prior to the Acquisition Closing Date had occurred on September 30, 2005, and utilizing such financial information as is then available to the Borrower; | ||
(ix) | (A) a proforma consolidated balance sheet of the Trust as at September 30, 2006 and a proforma consolidated statement of earnings of the Trust for the 9 months ended September 30, 2006 prepared under the assumptions that the Acquisition and the acquisition of Esprit Energy Trust and its Subsidiaries had closed on December 31, 2005, that any divestitures completed on or prior to the Acquisition Closing Date had closed on December 31, 2005, that the Credit Facility had been drawn down in full on December 31, 2005, and that any equity issuances or other debt financings that were completed on or prior to the Acquisition Closing Date had occurred on December 31, 2005, all prepared in accordance with GAAP; (B) statements of earnings for the Trust, the Acquisition and Esprit Energy Trust and its Subsidiaries for the 3 month period ending December 31, 2005, all prepared in accordance with GAAP; and (C) a schedule of Consolidated EBITDA for the 12 months ended September 30, 2006 and in each case utilizing such financial information as is then available to the Borrower; | ||
(x) | a true copy of the Conoco Purchase Agreement and any other Acquisition Documents required by Agent’s counsel, acting reasonably, in form and substance satisfactory to the Agent; | ||
(xi) | evidence that all necessary corporate, government and third party approvals and waivers required for the proper consummation of the Acquisition have been obtained and are in place (other than for greater certainty any customary post-closing approvals and waivers), or that alternative arrangements acceptable to the Agent, acting reasonably, have been established; |
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(xii) | 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; | ||
(xiii) | 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 | ||
(xiv) | such other information as may be reasonably requested by the Agent; |
(d) | that the Agent is satisfied, acting reasonably, that the Acquisition will close substantially in accordance with the provisions of the Conoco Purchase Agreement without material amendment thereto and that all conditions precedent under the Conoco Purchase Agreement have been satisfied or waived and if waived by the Borrower and material, waived with the consent of the Agent, such consent not to be unreasonably withheld; | |
(e) | that the Agent is satisfied, acting reasonably, that the Acquisition is ready to proceed subject only to payment of the purchase price in respect thereof in accordance with the Conoco Purchase Agreement; | |
(f) | that the Agent is satisfied, acting reasonably, that the proceeds of all Accommodations provided by the Lenders to the Borrower on the Acquisition Closing Date will be used for the purposes set forth in Section 3.2, and that upon the payment of such proceeds (together with the balance of the purchase price, but subject to any post-closing adjustments), AcquisitionCo will have acquired the Conoco Shares and indirectly the Conoco Partnership and the Conoco Assets; | |
(g) | that the Agent is satisfied, acting reasonably, that no Default, Event of Default or Material Adverse Effect will occur as a result of the consummation by AcquisitionCo of the Acquisition; | |
(h) | 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 5.6 duly executed by the Borrower and the Agent; | |
(i) | 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 5.7 duly executed by the Borrower and the Agent; and | |
(j) | 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 the Drawdown Date and each Conversion Date and Rollover Date there exists no Default or Event of Default and that on the Drawdown Date the representations and warranties referred to |
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in Section 2.2 are true and correct on such Drawdown Date with the same effect as if made as of that Drawdown Date. |
(a) | a duly executed copy of an addition agreement whereby each of the Conoco Entities agrees to be bound by the Loan Party Guarantee; | |
(b) | a duly executed copy of an addition agreement whereby each of the Conoco Entities agrees to be bound by the Subordination Agreement; | |
(c) | a certificate of status in respect of each Conoco Corporate Entity and a partnership search in respect of the Conoco Partnership, in each case issued under the laws of the Province of Alberta; | |
(d) | an officer’s certificate of or relating to each Conoco Entity, attaching thereto, inter alia: (i) its articles of incorporation and by-laws, partnership agreement or other constating documents; (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; | |
(e) | an opinion of Xxxxxxx Xxxxx LLP addressed to the Agent and each Lender with respect to the Loan Documents to which each Conoco Entity is a party and confirming that AcquisitionCo has acquired the Conoco Shares; and | |
(f) | such other closing documents and documentation which the Agent may reasonably request. |
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; |
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(b) | Corporate Existence: the Borrower shall 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 cause each Designated Subsidiary which is a corporation to maintain its corporate existence and shall cause each Designated Subsidiary which is a partnership to maintain its partnership existence and shall 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; | |
(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: |
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(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; |
(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; | ||
(v) | provide prompt written notice to the Agent of any change of control of the Manager; and | ||
(vi) | provide prompt written notice to the Agent of the receipt by the Borrower, the Trust or any Subsidiary of the Trust of any cash proceeds which results in a reduction of the Total Commitment under Section 4.2; |
(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 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; |
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(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) | Year End Financial Statements of the Borrower: the Borrower shall, so long as the Borrower is a reporting issuer, 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 Borrower, a consolidated balance sheet of the Borrower as at the close of such Fiscal Year, a consolidated statement of income and retained earnings and a consolidated statement of cash flows of the Borrower 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 Borrower 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 |
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then ended in accordance with Generally Accepted Accounting Principles consistently applied; | ||
(o) | Quarterly Financial Statements of the Borrower: the Borrower shall, so long as the Borrower is a reporting issuer, 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 Borrower, a consolidated balance sheet of the Borrower as at the end of such Fiscal Quarter, a consolidated statement of income and retained earnings and a consolidated statement of cash flows of the Borrower for such period, prepared on an unaudited basis which is consistent with the corresponding period of the preceding Fiscal Year; | |
(p) | Compliance Certificate: the Borrower shall furnish to the Agent within sixty (60) days after the end of each Fiscal Quarter 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; | |
(q) | Other Reports: the Borrower shall furnish to the Agent: |
(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 any Material Contract permitted hereunder; |
(r) | 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 |
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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; | ||
(s) | 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; | |
(t) | 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, accurate and fairly reflect the interests of the Borrower and the Designated Subsidiaries therein and thereto net of all royalties and other burdens affecting same; | |
(u) | Engineering Reports: on or before March 31, 2007, the Borrower shall deliver to the Lenders an Engineering Report in respect of the Oil and Gas Properties. 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; | |
(v) | 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 (but without affecting the Borrower’s obligations pursuant to Section 7.4 hereof), 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; | |
(w) | Ownership: the Borrower shall ensure that at least 90.9% of its common shares are owned by the Trust, and 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 of such Designated Subsidiary, and all shareholders of such shareholders through to the Borrower or the Trust, shall constitute Designated Subsidiaries; and | |
(x) | Pari Passu Ranking: the Borrower shall ensure that its payment obligations hereunder rank at least pari passu in right of payment with the Term Indebtedness and the Operating Indebtedness and with all of its other existing and future senior unsecured indebtedness for borrowed money. |
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(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 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) | if the Transaction involves a person other than the Borrower or a Designated Subsidiary, 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 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 a corporation governed (as to corporate matters) by the federal laws of Canada or the laws in force in a province of Canada; | ||
(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; |
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(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; |
(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 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, and shall not and shall not permit any of the other Loan Parties to enter into any Swap with any person if, as a result thereof, the Loan Parties would then have: |
(i) | Interest Swaps in effect for an aggregate notional principal amount in excess of 70% of the Debt of the Trust determined on a consolidated basis in accordance with GAAP; | ||
(ii) | Currency Swaps in effect for an aggregate amount in excess of the present value of 67% of the projected cash flow from the Oil and Gas Properties of the Borrower and all of the Designated Subsidiaries over the hedged period determined by discounting at the current discount rate used by the Agent in accordance with its customary practices and standards for oil and gas loans; or | ||
(iii) | Commodity Swaps in effect for in excess of 67% of the projected net crude oil, natural gas or natural gas liquids production, as the case may be, of the Borrower and all of the Designated Subsidiaries from the Oil and Gas Properties over the hedged period; |
(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, interalia, 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 |
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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 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), and shall not and 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 amendments, replacements or waivers which 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; | |
(k) | Issuance: the Borrower shall not issue any further Royalty Units and shall not permit the Subtrust to issue any ownership interests in the Subtrust, including Subtrust Trust Units, to any person who has not agreed to subordinate, or has not otherwise effectively subordinated, his rights as holder of Royalty Units or holder of ownership interests in the Subtrust, as the case may be, to the Bridge Indebtedness and the Swap Indebtedness in all circumstances and in a manner and to the extent contemplated by the Subordination Agreement; | |
(l) | Issuance of Trust Units: the Borrower shall not permit the Trust to issue any further Trust Units to any person who has not agreed to subordinate, or has not otherwise effectively subordinated, his rights as holder of Trust Units to the Bridge Indebtedness and the Swap Indebtedness in all circumstances and in a manner and to the extent contemplated by the Subordination Agreement; and | |
(m) | 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 permit the Trust to make any payment or distribution to the Trust Unitholders. |
(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 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 |
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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%; and | |
(d) | Designated Subsidiaries Asset Test: subject to Section 8.1(v) , 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. |
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: |
(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; |
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(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; |
(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 (other than pursuant to this Agreement) 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 (other than pursuant to this Agreement) 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 as a consequence of any such default or condition such indebtedness 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 (other than pursuant to this Agreement) 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 (other than pursuant to this Agreement) or Swaps in an aggregate outstanding principal amount in excess of the Threshold Amount; |
(e) | Default under Term Loan Documents: if the Borrower is in default under any term or provision of the Term Loan Documents and as a result of such default the Term Lenders (or the Term Agent) shall have accelerated or shall have the right to accelerate the repayment of any of the Term Indebtedness; | |
(f) | 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; | |
(g) | 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; | |
(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 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 and such writ, 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 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; |
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(n) | Borrower Ownership: if the Trust ceases to own at least 90.1% of the shares and other equity interests of the Borrower or 100% of the Intercompany Subordinated Debt; or | |
(o) | 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) 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 and the Swap Lenders in respect of amounts due and payable to the Lenders and the Swap Lenders as and by way of recoverable expenses hereunder and under any Swap Agreement to which any Swap Lender is a party; | |
(c) | thirdly, rateably among the Lenders 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 and interest on overdue amounts pursuant to Section 5.5; | |
(d) | fourthly, rateably among the Lenders in respect of any other amount (other than Borrowings) not hereinbefore referred to in this Section 9.4 which is then due and payable by the Borrower hereunder; and | |
(e) | fifthly, rateably among the Lenders and Swap Lenders in or towards repayment to the Lenders and the Swap Lenders of the Borrowings then outstanding hereunder and the Swap Indebtedness then outstanding to any Swap Lender under any Swap Agreement, subject to any adjustments required to be made in accordance with the provisions of Section 11.11; and | |
(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
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(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 | |
(c) | imposes on a Lender any other condition with respect to this Agreement; |
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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); |
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(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. |
(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 |
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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. |
(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; and | |
(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). |
(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 |
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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 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 |
72
(ii) | without prejudice to the Borrower’s other rights against such Lender, Section 4.5(c)(i) or 4.5(c)(ii) shall, at the Borrower’s election, apply in regard to such Lender, mutatis mutandis, as if such Lender were an Affected Lender. |
(a) | Adjustments to Outstanding Borrowings: Each Lender agrees 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 purchase portions of the Borrowings made available by the other Lenders 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, as adjusted pursuant to this Section 11.11, will be in the same proportion as its Lender’s Proportion of the aggregate Borrowings under this Agreement 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 the amount of any proceeds from the exercise of any rights or remedies of the Agent and the Lenders under the 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 after giving effect to such application will be in the same proportion as its Lender’s Proportion of the aggregate Borrowings under this Agreement 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, 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 payment of any amounts payable to the Lenders under this Agreement including, without limitation, the provisions of Section 9.1(a); |
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(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(v), 11.12(a) or 11.12(b); or |
(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; |
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(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; |
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SUCCESSORS AND ASSIGNS AND JUDGMENT CURRENCY
(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 |
78
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
79
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(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. |
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COMMITMENTS AND |
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ADDRESS FOR NOTICES: |
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Borrower: | PENGROWTH CORPORATION | |||||
BP Centre |
||||||
2900, 240 – 0xx Xxxxxx X.X.
|
Per: | |||||
Calgary, Alberta
|
Name: | |||||
T2P 4H4
|
Title: | Chief Financial Officer | ||||
Attention: Chief Financial Officer |
||||||
Per: | ||||||
Telecopier: (000) 000-0000
|
Name: | Xxxxx Xxxxxx | ||||
Title: | Treasurer |
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Lender: | ROYAL BANK OF CANADA, as Lender | |||||
Suite 1100, 888 – 3rd Street S.W. |
||||||
Calgary, Alberta
|
Per: | |||||
X0X 0X0
|
Name: | |||||
Title: | Authorized Signatory | |||||
Attention: Senior Manager |
||||||
Telecopier: (000) 000-0000 |
||||||
Commitment: Cdn. [REDACTED] |
83
Lender: | THE BANK OF NOVA SCOTIA, as Lender | |||||
2000, 000 - 0xx Xxxxxx X.X. |
||||||
P.O. Box 2540
|
Per: | |||||
Xxxxxxx, Xxxxxxx, X0X 0X0
|
Name: | |||||
Title: | Associate Director | |||||
Attention: Managing Director |
||||||
Per: | ||||||
Telecopier: (000) 000-0000
|
Name: | |||||
Title: | ||||||
Commitment: Cdn. [REDACTED] |
84
Lender: | BANK OF MONTREAL, as Lender | |||||
2200, 000 - 0xx Xxxxxx X.X. |
||||||
Xxxxxxx, Xxxxxxx
|
Per: | |||||
X0X 0X0
|
Name: | |||||
Title: | Director | |||||
Attention: Vice-President |
||||||
Telecopier: (000) 000-0000 |
||||||
Commitment: Cdn. [REDACTED] |
85
Lender: | CANADIAN IMPERIAL BANK OF COMMERCE, as Lender |
|||||
Oil and Gas Group |
||||||
000 - 0xx Xx. X.X., 0xx floor |
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(East Tower, Bankers Hall)
|
Per: | |||||
Calgary, Alberta
|
Name: | |||||
X0X 0X0
|
Title: | |||||
Attention: Vice President |
||||||
Per: | ||||||
Telecopier: (000) 000-0000
|
Name: | |||||
Title: | ||||||
Commitment: Cdn. [REDACTED] |
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Lender: | HSBC BANK CANADA, as Lender | |||||
0xx Xxxxx, 000 – 0xx Xxxxxx, X.X. |
||||||
Xxxxxxx, Xxxxxxx, X0X 0X0
|
Per: | |||||
Name: | ||||||
Attention: Corporate & Institutional Banking
|
Title: | |||||
Telecopier: (000) 000-0000 |
||||||
Per: | ||||||
Commitment: Cdn. [REDACTED]
|
Name: | |||||
Title: |
87
Lender: | NATIONAL BANK OF CANADA, as Lender | |||||||
Corporate Banking | ||||||||
Suite 2802, 450 – 0xx Xxxxxx, X.X. | Per: | |||||||
Xxxxxxx, Xxxxxxx, X0X 0X0 | Name: | Xxxx Xxxxxxx | ||||||
Title: | Senior Manager | |||||||
Attention:
|
Senior Manager | |||||||
Telecopier: (000) 000-0000 | Per: | |||||||
Name: | Xxxx Xxxxxxx | |||||||
Commitment: Cdn. [REDACTED] | Title: | Manager |
88
Lender: | SOCIÉTÉ GÉNÉRALE (CANADA BRANCH), as Lender | |||||||
Suite 1800, 1501 XxXxxx Xxxxxxx Xxxxxx | ||||||||
Xxxxxxxx, Xxxxxx X0X 0X0 | ||||||||
Attention: Xxxxx Xxxxxxxx | Per: | |||||||
Name: | ||||||||
Telecopier: (000) 000-0000 | Title: | |||||||
Commitment: Cdn. [REDACTED] | ||||||||
Per: | ||||||||
Name: | ||||||||
Title: |
00
Xxxxxx: | XXXXX XXXX XX XXXXXXXXXX, X.X., XXXXXX BRANCH, as Lender | |||||||
Suite 730, 440 – 2nd Avenue, S.W. | ||||||||
Calgary, Alberta T2P 5E9 | ||||||||
Attention:
|
Vice President | Per: | ||||||
Name: | ||||||||
Telecopier: (000) 000-0000 | Title: | |||||||
Commitment: Cdn. [REDACTED] | ||||||||
Per: | ||||||||
Name: | ||||||||
Title: |
90
Lender: | THE TORONTO-DOMINION BANK, as Lender | |||||||
Corporate Banking | ||||||||
000, 000 - 0xx Xxxxxx X.X. | Xxx: | |||||||
Xxxxxxx, Xxxxxxx | Name: | Xxxxxxx Xxxxxxxx | ||||||
X0X 0X0 | Title: | Vice-President & Director | ||||||
Attention:
|
Vice President – Corporate | |||||||
Credit | Per: | |||||||
Name: | ||||||||
Telecopier: (000) 000-0000 | Title: | |||||||
Commitment: Cdn. [REDACTED] |
91
Lender: | ALBERTA TREASURY BRANCHES, as Lender | |||||||
000 – 0xx Xxxxxx, X.X. | ||||||||
Xxxxxxx, Xxxxxxx, X0X 0X0 | Per: | |||||||
Name: | Xxxxxx Xxxxxxxx | |||||||
Attention: Relationship Manager | Title: | Relationship Manager | ||||||
Telecopier: (000) 000-0000 | ||||||||
Per: | ||||||||
Commitment: Cdn. [REDACTED] | Name: | Xxxxxx Xxxxxxxx | ||||||
Title: | Account Manager |
Administrative Agent: | ROYAL BANK OF CANADA, as Administrative Agent |
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Agency Services Group |
||||||
00xx Xxxxx, Xxxxx Xxxxx |
||||||
Xxxxx Xxxx Xxxxx
|
per: | |||||
000 Xxx Xxxxxx
|
Name: | |||||
Xxxxxxx, Xxxxxxx, X0X 0X0
|
Title: | |||||
Attention: Manager, Agency |
||||||
Telecopier: (000) 000-0000 |
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 or prepayment]. | |
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)]. | |
4. | [If applicable]. The Libor Interest Period for the Libor Loan is months. | |
5. | [If applicable] We hereby request that the [Lenders/Schedule II Lenders] purchase Bankers’ Acceptances at the applicable Discount Rate. | |
6. | [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 . | |
7. | [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 term of each such Bankers’ Acceptance shall be for a period of ___days, maturing on . |
8. | 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: | ||||||
Union | ||||||||||||||||||||
The | Bank of | |||||||||||||||||||
Bank | Canadian | Société | California, | The | ||||||||||||||||
Royal | of | Imperial | HSBC | National | Générale | N.A., | Toronto- | Alberta | ||||||||||||
Name of | Bank of | Nova | Bank of | Bank of | Bank | Bank of | (Canada | Canada | Dominion | Treasury | ||||||||||
Lender | Canada | Scotia | Montreal | Commerce | Canada | Canada | Branch) | Branch | Bank | Branches | ||||||||||
Amount |
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Discount |
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Rate |
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Price |
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Discount |
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Proceeds |
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Acceptance |
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Fee |
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Net |
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Proceeds |
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Purchaser |
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Term |
Agency Services Group
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
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 credit agreement (the “Credit Agreement”) dated as of January 22, 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 Trust 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. | Except where the context otherwise requires, all capitalized terms used herein have the same meaning as in the Credit Agreement; and | |
9. | 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. |
PENGROWTH CORPORATION | ||||||
Per: | ||||||
Name: | ||||||
Title: | ||||||
TO:
|
Royal Bank of Canada, as Administrative Agent (the “Agent”) | |
AND TO:
|
Pengrowth Corporation (the “Borrower”) | |
RE:
|
Credit Agreement (“Credit Agreement”) made as of January 22, 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 by the Assignor remain outstanding on such date, such Bankers’ Acceptances 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 (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 (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 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 any representation or warranty whatsoever as to the due execution, legality, effectiveness, validity |
2
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: |
[l]
Telecopier: [l]
10. | This Lender Transfer Agreement shall be binding upon the Assignee and its successors and permitted assigns. |
3
[Name of Assignee] | ||||||
Per: | ||||||
[Name of Assignor] | ||||||
Per: | ||||||
ROYAL BANK OF CANADA, as agent | ||||||
Per: | ||||||
PENGROWTH CORPORATION | ||||||
Per: | ||||||
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; |
1. | 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; | |
2. | 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 | |
3. | 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. |
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This Guarantee made as of the 22nd day of January, 2007. | ||
To:
|
Royal Bank of Canada in its capacity as Agent for the Lenders (the “Agent”) | |
And To:
|
The Lenders | |
And To:
|
Swap Lenders |
(a) | guarantees payment of all debts and liabilities, present or future, direct or indirect, absolute or contingent, matured or not, at any time owing by PENGROWTH CORPORATION (the “Borrower”) and its successors, assigns and transferees to the Agent, the Lenders or the Swap Lenders (collectively, the “ Beneficiaries ”), pursuant to the Bridge Credit Agreement or a Lender Swap Agreement (collectively, such debts and liabilities being hereinafter called the “Obligations”); and | ||
(b) | indemnifies and saves harmless the Beneficiaries from and against any and all losses, damages, costs, expenses or liabilities suffered or incurred by any Beneficiary resulting or arising from or relating to any failure of the Borrower to pay in full or fully perform the Obligations as and when due, provided that the amount of such indemnification shall not exceed the amount of such Obligations together with any and all other amounts due and owing hereunder from time to time. | ||
And each Guarantor agrees with the Beneficiaries as follows: |
1. | Definitions: In this Guarantee the following terms shall have the following meanings: |
(a) | “Bridge Credit Agreement” means that certain Cdn. $600,000,000 bridge credit agreement dated as of January 22, 2007 among the Borrower, the Agent and the Lenders from time to time party thereto, together with the other Loan Documents entered into thereunder, as each may be amended, modified, supplemented, restated or replaced from time to time. | ||
(b) | “Lender Swap Agreement” means a Swap Agreement entered into with a Swap Lender. | ||
(c) | “Swap Lender” means a person which, at the time that it entered into a Swap Agreement, was a Lender or an Affiliate of a Lender. |
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Unless otherwise defined herein or there is something in the subject matter or context inconsistent therewith, capitalized terms used in this Guarantee shall have the same meanings given to such terms in the Bridge Credit Agreement. | ||
2. | Evidence of Accounts: Any account settled or stated between the Borrower and one or more of the Beneficiaries shall be accepted by the Guarantors as prima facie evidence that the amount thereby appearing due by the Borrower to the Beneficiaries or any of them is so due including, without limitation, the accounts maintained by the Agent pursuant to Section 4.7 of the Bridge Credit Agreement. | |
3. | Waiver of Defenses: The liability of the Guarantors under this Guarantee shall be irrevocable, unconditional and absolute, and without limiting the generality of the foregoing, the obligations of the Guarantors shall not be released, discharged, limited or otherwise affected by, and each Guarantor hereby waives as against each of the Beneficiaries to the fullest extent permitted by applicable law: |
(a) | any defence relating to any extension, other indulgence, renewal, settlement, discharge, compromise, waiver, subordination or release in respect of any Obligation or otherwise; | ||
(b) | any modification or amendment of or supplement to the Obligations, including any increase or decrease in the principal, the rates of interest or other amounts payable in respect thereof; | ||
(c) | any defence based upon any incapacity, disability or lack or limitation of status or power of the Borrower or of the directors, officers, employees, partners or agents thereof, or that the Borrower may not be a legal entity; | ||
(d) | any irregularity, defect or informality in the borrowing or obtaining of moneys or credits in respect of the Obligations; | ||
(e) | any change in the existence, structure, constitution, name, control or ownership of the Borrower or any other person, or any insolvency, bankruptcy, amalgamation, merger, reorganization or other similar proceeding affecting the Borrower or any other person or the assets of the Borrower or of such other person; | ||
(f) | the existence of any claim, set-off or other rights which any Guarantor may have at any time against the Borrower, any of the Beneficiaries, or any other person, whether in connection with the Obligations or any unrelated transactions; | ||
(g) | any release or non-perfection or any invalidity, illegality or unenforceability relating to or against the Borrower or any other person, whether relating to any instrument evidencing the Obligations or any other agreement or instrument relating thereto or any part thereof or any provision of applicable law or regulation purporting to prohibit the payment by the Borrower or any other person of any of the Obligations; | ||
(h) | any limitation, postponement, prohibition, subordination or other restriction on the rights of the Beneficiaries or any of them to payment of the Obligations or to take any steps in respect thereof; | ||
(i) | any release, substitution or addition of any co-signer, endorser, other guarantor or any other person in respect of the Obligations; |
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(j) | any defence arising by reason of any failure of any Beneficiary to make any presentment, demand for performance, notice of non-performance, protest, and any other notice, including notice of (i) acceptance of this Guarantee, (ii) partial payment or non-payment of all or any part of the Obligations and (iii) the existence, creation, or incurring of new or additional Obligations; | ||
(k) | any defence arising by reason of any failure of any Beneficiary to proceed against the Borrower or any other person, to proceed against, apply or exhaust any security held from the Borrower, any Guarantor or any other person for the Obligations, or to proceed against or to pursue any other remedy in the power of any Beneficiary whatsoever; | ||
(l) | the benefit of any law which provides that the obligation of a guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal obligation or which reduces a guarantor’s obligation in proportion to the principal obligations; | ||
(m) | any defence arising by reason of any incapacity, lack of authority or other defence of the Borrower, any Guarantor or any other person, or by reason of the cessation from any cause whatsoever of the liability of the Borrower, any Guarantor or any other person with respect to all or any part of the Obligations (other than the actual satisfaction thereof), or by reason of any act or omission of any Beneficiary or others which directly or indirectly results in the discharge or release of the Borrower, any Guarantor or all or any part of the Obligations or any security, or guarantee therefor, whether by operation of law or otherwise; | ||
(n) | any defence arising by reason of any failure by any Beneficiary to obtain, perfect or maintain a perfected (or any) security interest in or lien or encumbrance upon any property of the Borrower, any Guarantor or any other person or by reason of any interest of any Beneficiary in any property, whether as owner thereof or the holder of a security interest therein or lien or encumbrance thereon, being invalidated, voided, declared fraudulent or preferential or otherwise set aside, or by reason of any impairment by any Beneficiary of any right to recourse or collateral; | ||
(o) | any defence arising by reason of the failure of any Beneficiary to marshal any assets; | ||
(p) | any defence based upon any failure of any Beneficiary to give to the Borrower or any Guarantor notice of any sale or other disposition of any property securing any or all of the Obligations or any guarantee thereof, or any defect in any notice that may be given in connection with any sale or other disposition of any such property, or any failure of any Beneficiary to comply with any provision of applicable law in enforcing any security interest in or lien upon any such property, including any failure by any Beneficiary to dispose of any such property in a commercially reasonable manner; | ||
(q) | any dealing whatsoever with the Borrower, any Guarantor or any other person or any security, whether negligently or not, or any failure to do so; | ||
(r) | any defence based upon or arising out of any winding up, receivership, bankruptcy, insolvency, reorganization, moratorium, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against the Borrower, any Guarantor, or any other person, including any discharge of, or bar against collecting, any of the Obligations, in or as a result of any such proceeding; |
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(s) | any reorganization, moratorium, arrangement or compromise of any or all of the obligations of the Borrower or any Guarantor including, without limitation, the Obligations or any transaction including, without limitation, any consolidation, arrangement, transfer, sale, lease or other disposition, whereby all or any part of the undertaking, property and assets of the Borrower or any Guarantor become the property of any other person or persons; | ||
(t) | any extinguishment of all or any of the Obligations for any reason whatsoever (other than the actual satisfaction thereof); or | ||
(u) | any other circumstance which might otherwise constitute a defence available to, or a discharge of the Guarantors (or any of them), any other act or omission to act or delay of any kind by the Borrower, any Beneficiary, any Guarantor or any other person or any other circumstance whatsoever, whether similar or dissimilar to the foregoing, which might, but for the provisions of this Section 3, constitute a legal or equitable discharge, limitation or reduction of the obligations of any Guarantor hereunder (other than the payment or satisfaction in full of all of the Obligations). |
The foregoing provisions apply (and the foregoing waivers shall be effective) even if the effect is to destroy or diminish any Guarantor’s subrogation rights, any Guarantor’s right to proceed against the Borrower for reimbursement, any Guarantor’s right to recover contribution from any other Guarantor or any other right or remedy; provided, however, nothing in this Section 3 shall relieve the Beneficiaries from any obligation in law or equity to act in good faith. |
4. | No Waiver : No delay on the part of any Beneficiary, in exercising any of its options, powers or rights, or partial or single exercise thereof, shall constitute a waiver thereof. No amendment or waiver of any of the rights of any Beneficiary hereunder shall be deemed to be made by such Beneficiary, unless the same shall be in writing, duly signed on behalf of such Beneficiary and each such waiver, if any, shall apply only with respect to the specific instance involved and for the specific purpose for which given, and shall in no way impair the rights or liabilities of any Beneficiary, or the Guarantors (or any of them) hereunder in any other respect at any other time. | |
5. | Deemed Existence: If at any time, all or any part of any payment previously applied by any Beneficiary to any Obligation is or must be rescinded or returned by such Beneficiary for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Borrower), such Obligation shall, for the purpose of this Guarantee, to the extent that such payment is rescinded or returned, be deemed to have continued in existence, notwithstanding such application by such Beneficiary and this Guarantee shall continue to be effective or be reinstated, as the case may be, as to such Obligation, all as though such application by such Beneficiary had not been made. | |
6. | Other Securities : This Guarantee is in addition to and not in substitution for any other guarantee or any other securities by whomsoever given at any time held by any Beneficiary for any present or future Obligations and each Beneficiary shall at all times have the right to proceed against or realize upon all or any portion of any other guarantees or securities or any other money or assets to which it may become entitled or have a claim in such order and in such manner as it in its sole and unfettered discretion may deem fit. | |
7. | Continuing Guarantee: This Guarantee is a continuing guarantee and: (i) shall remain in full force and effect in accordance with its terms until payment in full of all amounts payable under |
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this Guarantee; and (ii) shall be binding upon the Guarantors, their successors and permitted assigns. | ||
8. | Enforcement of Guarantee: The obligations of the Guarantors under this Guarantee shall be enforceable by the Agent upon demand by the Agent for payment of the Obligations from the Borrower made when any of such Obligations are in default, without the necessity of any action or recourse whatsoever against the Borrower or any other guarantor. The remedies provided in this Guarantee are cumulative and not exclusive of any remedies provided by law, the Loan Documents, the Lender Swap Agreements or otherwise. | |
9. | Subrogation: This Guarantee shall not be considered as wholly or partially satisfied by the payment or liquidation at any time or times of any sum or sums of money for the time being due or remaining unpaid to any Beneficiary and all dividends, compensations, proceeds of security valued and payments received by any Beneficiary from the Borrower, any Guarantor or from others or from any estate shall be regarded for all purposes as payments in gross without right on the part of the Guarantors (or any of them) to claim in reduction of the liability under this Guarantee the benefit of any such dividends, compositions, proceeds or payments or any securities held by any Beneficiary or proceeds thereof, unless the effect of any such payment or liquidation received by such Beneficiary is to permanently reduce the amount of the Obligations and all Beneficiaries no longer have any obligation to extend credit or advance monies to or for the benefit of the Borrower. The Guarantors (or any of them) shall not have any right to be subrogated in any rights of any Beneficiary until all Beneficiaries shall have received full, final and indefeasible payment and have no further obligation to extend credit or advance monies to or for the benefit of the Borrower. | |
10. | Guarantee of Payment and Performance: This Guarantee is a guarantee of payment and performance and not of collection and is in addition and without prejudice to any securities of any kind now or hereafter held by any Beneficiary. | |
11. | Costs: The Guarantors shall reimburse each Beneficiary for all expenses (including the fees and disbursements of its counsel on a solicitor and his own client basis) incurred by such Beneficiary in collecting or compromising any of the Obligations and in enforcing this Guarantee or any other guarantee of the Obligations, and the term “Obligations” herein shall include all such expenses. | |
12. | Payment: All payments hereunder with respect to any Obligations shall be made to the Agent at its office at Agency Services Group, 00xx Xxxxx, Xxxxx Xxxxx, Xxxxx Bank Plaza, 000 Xxx Xxxxxx, Xxxxxxx, Xxxxxxx X0X 0X0, Attention: Manager, Agency or at such other branch or agency of the Agent as the Agent shall designate from time to time by notice in writing to the Guarantors. | |
13. | Payment on Stay : If: (i) the Borrower or any Guarantor is prevented from making payment of any of the Obligations when it would otherwise be required to do so; or (ii) the Agent is prevented from demanding payment of the Obligations because of a stay or other judicial proceeding or any other legal impediment, all Obligations or other amounts otherwise subject to demand, acceleration or payment shall be payable by the Guarantors as provided for hereunder. | |
14. | Waiver of Notice: Each Guarantor waives all notices which may be required by any statute, rule of law, contract or otherwise to preserve any rights of any Beneficiary against such Guarantor. | |
15. | Relationship to Borrower : The Guarantors have had full and complete access to the underlying documentation relating to the Obligations and all other documentation executed by any other person in connection with the Obligations. The Guarantors are fully informed of all circumstances |
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which bear upon the risks of executing this Guarantee which a diligent inquiry would reveal. The Guarantors have adequate means to obtain from the Borrower on a continuing basis information concerning the Borrower’s financial condition, and is not depending on any Beneficiary to provide such information, now or in the future. The Guarantors agree that the Beneficiaries shall not have any obligation to advise or notify the Guarantors (or any of them) or to provide the Guarantors (or any of them) with any data or information. | ||
16. | Covenants: Each Guarantor acknowledges receipt of a copy of the Bridge Credit Agreement and any Lender Swap Agreements currently in existence as well as any other Loan Documents, and understands the obligations of the Borrower thereunder. Each Guarantor consents to and agrees to be bound by any provision in the Bridge Credit Agreement, any Lender Swap Agreement (whether now or hereafter in existence) and any other Loan Document which relates to such Guarantor. Each Guarantor hereby covenants and agrees that it will not do anything which would result in the Borrower being in breach of the Bridge Credit Agreement or any Lender Swap Agreement (whether now or hereafter in existence) or any other Loan Document. | |
17. | Governing Law and Submission to Jurisdiction: This Guarantee shall be governed by and construed in accordance with the laws of the Province of Alberta. Each Guarantor irrevocably agrees that any legal proceedings in respect of this Guarantee may be brought in the courts of the Province of Alberta and the courts of appeal therefrom (the “Specified Courts ”). Each Guarantor hereby irrevocably submits to the non-exclusive jurisdiction of the Specified Courts. Each Guarantor hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the commencement of any suit, action or proceeding arising out of or relating to the Guarantee, any Loan Document or any Lender Swap Agreement in any Specified Court, and hereby further irrevocably waives any claims that any such suit, action or proceeding brought in any such Specified Court has been brought in an inconvenient forum. Each Guarantor further irrevocably consents to the service of process out of any of the Specified Courts in any such suit, action or proceeding by the mailing of copies thereof by registered mail, return receipt requested, postage prepaid, to such Guarantor at its address as provided in this Guarantee or as otherwise provided by applicable law. Nothing herein shall affect the right of any Beneficiary to commence legal proceedings or otherwise proceed against the Guarantors (or any of them) in any jurisdiction or to serve process in any manner permitted by applicable law. Each Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. | |
18. | Taxes: Any and all payments by the Guarantors hereunder shall be made without set-off or counter-claim, free and clear of, and without deduction for or on account of any Tax, except as contemplated in the next sentence. If any Tax is deducted or withheld from any payments, other than any Tax withheld by reason of a Beneficiary being a non-resident of Canada within the meaning of the Income Tax Act (Canada): |
(a) | the sum payable shall be increased as may be necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section) the Beneficiaries receive an amount equal to the sum they would have received had no such deductions or withholdings been made; and | ||
(b) | the Guarantors (or any of them) shall pay the full amount deducted or withheld to the relevant taxation authority or other authority in accordance with applicable law. |
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If following the making of any payment by the Guarantors (or any of them) under this Guarantee, any Beneficiary is granted or receives a credit, refund or remission in respect of the Tax for which the deduction or withholding was made, such Beneficiary shall (subject to the Guarantors having paid the relevant amount payable under this Section) to the extent that it is satisfied that it can do so without prejudice to the retention of the amount of such credit or refund, refund to the Guarantors such amount (if any) as such Beneficiary shall determine in good faith will leave such Beneficiary in no worse position than would have been the case if there had been no obligation to make such deduction or withholding in the first place. No Beneficiary shall be obligated to provide to the Guarantors (or any of them) copies of all or any part of its tax returns, financial statements or other corporate financial data by reason of any such matter. | ||
19. | Severability: If any provision of this Guarantee shall be invalid, illegal or unenforceable in any respect or in any jurisdiction, it shall not affect the validity, legality or enforceability of such provision in any other jurisdiction or the validity, legality or enforceability of any other provision of this Guarantee. | |
20. | Notices : Any demand, notice or communication to be made or given hereunder shall be in writing and may be made or given by personal delivery or by transmittal by facsimile or other electronic means of communication addressed to the respective parties as follows: |
(a) | the Guarantors | ||
c/o
Pengrowth Energy Trust 0000, 000 — 0xxXxxxxx X.X. Xxxxxxx, Xxxxxxx X0X 0X0 Attention: Chief Financial Officer |
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Fax: (000) 000-0000 |
(b) | the Agent and any other Beneficiary at: | ||
Royal Bank of Canada Xxxxx 0000, 000 — 0xx Xxxxxx X.X. Xxxxxxx, Xxxxxxx X0X 0X0 Attention: Senior Manager |
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Fax: (000) 000-0000 |
with a copy to: |
Royal Bank of Canada Agency Services Group 00xx Xxxxx, Xxxxx Xxxxx Xxxxx Xxxx Xxxxx 000 Xxx Xxxxxx Xxxxxxx, Xxxxxxx X0X 0X0 Attention: Manager, Agency |
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Fax: (000) 000-0000 |
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or to such other address or facsimile number as any party may from time to time notify the others in accordance with this Section. Any demand, notice or communication made or given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof, or, if made or given by facsimile or other electronic means of communication, on the first Business Day following the transmittal thereof. | ||
21. | Amendment: No amendment or any change to, or waiver of, any provision of this Guarantee shall be effective unless consented to in writing by the Agent. | |
22. | Judgment Currency: If for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Guarantee it becomes necessary to convert into the currency of such jurisdiction (herein called the “Judgment Currency”) any amount due hereunder in any currency other than the Judgment Currency, then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given. For this purpose “rate of exchange” means the spot rate at which the Agent will, on the relevant date at or about 12:00 noon (Toronto time) sell such currency in Toronto, Ontario against the Judgment Currency. In the event that there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given and the date of payment of the amount due, the Guarantors will, on the date of payment, pay such additional amounts (if any) as may be necessary to ensure that the amount paid on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of payment is the amount then due under this Guarantee in such other currency. Any additional amount due from the Guarantors under this section will be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of this Guarantee. | |
23. | Acknowledgement re: Pengrowth Energy Trust: The Agent on behalf of the Beneficiaries acknowledges that Computershare Trust Company of Canada is entering into this Guarantee solely in its capacity as trustee (in such capacity, the “Trustee”) on behalf of Pengrowth Energy Trust (the “Trust”) and the Trust Unitholders and that the obligations of the Trustee and the Trust shall not be personally binding upon the Trustee or any of the Trust Unitholders and that any recourse against the Trust, the Trustee or any of the Trust Unitholders in any manner in respect of any indebtedness, obligation or liability of the Trustee or the Trust arising hereunder or arising in connection herewith or from the matters to which this Guarantee relates, if any, including without limitation, claims based on negligence or other tortious behaviour, shall be limited to, and satisfied only out of, the Trust Fund (as defined in the Trust Indenture). | |
24. | Acknowledgement re: Pengrowth Holdings Trust: The Agent on behalf of the Beneficiaries acknowledges that, with respect to Pengrowth Holdings Trust (the “Subtrust ”), Pengrowth Corporation is entering into this Guarantee in its capacity as trustee (in such capacity, the “Subtrust Trustee”) on behalf of the Subtrust and that the obligations of the Subtrust Trustee and the Subtrust shall not be personally binding upon the Subtrust Trustee or any of the Unitholders (as defined in the Subtrust Trust Indenture) and that any recourse against the Subtrust, the Subtrust Trustee or any of the Unitholders in any manner in respect of any indebtedness, obligation or liability of the Subtrust Trustee or the Subtrust arising hereunder or arising in connection herewith or from the matters to which this Guarantee relates, if any, including without limitation, claims based on negligence or other tortious behaviour, shall be limited to, and satisfied only out of, the Trust Assets (as defined in the Subtrust Trust Indenture). | |
25. | Joint and Several Obligations: The obligations of the Guarantors hereunder are joint and several, and each Guarantor agrees that it is jointly and severally liable for the Obligations and all other payment and performance obligations hereunder. |
26. | New Subsidiary Guarantors : Any person that is not already a party to this Guarantee as Guarantor may be added to and become jointly and severally bound by this Guarantee as a Guarantor by executing a guarantor addition agreement (the “Addition Agreement”) substantially in the form attached as Schedule “A” hereto and delivering the same to the Agent. The Addition Agreement shall be effective to add such person as a Guarantor under this Guarantee for the benefit of all Beneficiaries upon receipt thereof by the Agent. |
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: |
||||||||
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 |
1275708 ALBERTA LTD. | ||||||||
Per: |
||||||||
Name:
|
||||||||
Title:
|
Vice President | |||||||
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 |
This Agreement made as of the l day of l , l . | ||
To: |
Royal Bank of Canada in its capacity as Agent for the Lenders (the “Agent”) | |
And To: |
The Lenders | |
And To: |
Swap Lenders |
1. | Reference to Loan Party Guarantee |
(a) | This Guarantor Addition Agreement relates to the Loan Party Guarantee dated as of January 22, 2007 with respect to the Obligations pursuant to the Bridge Credit Agreement and any Lender Swap Agreements, executed by the Guarantors listed therein in favour of the Beneficiaries, as amended, modified, supplemented, restated or replaced in accordance with the provisions thereof (the “Loan Party Guarantee”). | ||
(b) | Capitalized terms used herein and not otherwise defined herein shall have the same meanings as are ascribed thereto in the Loan Party Guarantee. |
2. | Addition | |
Effective as of the date hereof, the New Guarantor shall become a Guarantor for the purposes of the Loan Party Guarantee as fully as if it had been an original signatory thereunder, and shall have all of the obligations of a Guarantor, jointly and severally with all other Guarantors, under the Loan Party Guarantee. | ||
3. | Notice | |
Any notice or other communication to the New Guarantor in connection with this Guarantor Addition Agreement or the Loan Party Guarantee shall be deemed to be delivered if delivered in the manner set forth in Section 20 of the Loan Party Guarantee at the following address: |
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4. | Governing Law |
[NEW GUARANTOR] |
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By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||