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EXHIBIT 10.2
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CANADIAN CREDIT AGREEMENT
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NORTHSTAR ENERGY CORPORATION
and
DEVON ENERGY CANADA CORPORATION
as Canadian Borrowers
BANK OF AMERICA CANADA
as Administrative Agent
BANC OF AMERICA SECURITIES LLC
as Lead Arranger
BANC ONE CAPITAL MARKETS, INC.
as Syndication Agent
THE CHASE MANHATTAN BANK
as Documentation Agent
FIRST UNION NATIONAL BANK
as Documentation Agent
and CERTAIN FINANCIAL INSTITUTIONS
as Lenders
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US $275,000,000
August 29, 2000
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TABLE OF CONTENTS
Page
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CREDIT AGREEMENT ................................................................................................... 1
Section 1.1. Commitments to Make Advances; Canadian Notes ................................................ 1
Section 1.2. Requests for New Canadian Advances .......................................................... 2
Section 1.3. Continuations and Conversions of Existing Canadian Advances ................................. 4
Section 1.4. Repayments .................................................................................. 5
Section 1.5. Interest Rates and Fees. .................................................................... 7
Section 1.6. Extension of Conversion Date. ............................................................... 9
Section 1.7. Conversion to Canadian Term Loan ............................................................ 9
Section 1.8. Non-Accepting Lender ........................................................................ 10
Section 1.9. Competitive Bid Loans ....................................................................... 10
Section 1.10. Use of Proceeds ............................................................................. 13
Section 1.11. Refinancings of Canadian Swing Loans ........................................................ 14
Section 1.12. Re-allocation of Tranche B Maximum Credit Amount and Canadian Maximum Credit Amount ......... 15
ARTICLE II - Bankers' Acceptances and Letters of Credit ............................................................ 16
Section 2.1. Creation of Bankers' Acceptances ............................................................ 16
Section 2.2. Terms of Acceptance by the Canadian Resident Lenders ........................................ 17
Section 2.3. General Procedures for Bankers' Acceptances ................................................. 19
Section 2.4. Execution of Bankers' Acceptances ........................................................... 21
Section 2.5. Escrowed Funds .............................................................................. 21
Section 2.6. Letters of Credit ........................................................................... 21
Section 2.7. Requesting Letters of Credit ................................................................ 22
Section 2.8. Reimbursement and Participations ............................................................ 23
Section 2.9. Letter of Credit Fees ....................................................................... 23
Section 2.10. No Duty to Inquire .......................................................................... 23
Section 2.11. LC Collateral ............................................................................... 24
ARTICLE III - Payments to Lenders .................................................................................. 25
Section 3.1. General Procedures .......................................................................... 25
Section 3.2. Change in Law; Gross Up; Increased Cost and Reduced Return .................................. 27
Section 3.3. Limitation on Types of Canadian Loans ....................................................... 29
Section 3.4. Illegality .................................................................................. 29
Section 3.5. Treatment of Affected Loans ................................................................. 29
Section 3.6. Compensation ................................................................................ 30
Section 3.7. Change of Applicable Lending Office ......................................................... 31
Section 3.8. Replacement of Lenders ...................................................................... 31
Section 3.9. Other Taxes ................................................................................. 31
Section 3.10. Currency Conversion and Currency Indemnity .................................................. 32
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ARTICLE IV - Conditions Precedent to Advances ...................................................................... 33
Section 4.1. Documents to be Delivered ................................................................... 33
Section 4.2. Additional Conditions Precedent to First Canadian Loan or First Letter of Credit ............ 34
Section 4.3. Additional Conditions Precedent to all Canadian Loans and Letters of Credit ................. 35
ARTICLE V - Representations and Warranties ......................................................................... 35
Section 5.1. No Default .................................................................................. 35
Section 5.2. Organization and Good Standing .............................................................. 35
Section 5.3. Authorization ............................................................................... 36
Section 5.4. No Conflicts or Consents .................................................................... 36
Section 5.5. Enforceable Obligations ..................................................................... 36
Section 5.6. Full Disclosure ............................................................................. 36
Section 5.7. Litigation .................................................................................. 37
Section 5.8. Environmental and Other Laws ................................................................ 37
Section 5.9. Names and Places of Business ................................................................ 37
Section 5.10. Canadian Borrowers' Subsidiaries ............................................................ 37
Section 5.11. Title to Properties; Licenses ............................................................... 38
Section 5.12. Solvency .................................................................................... 38
ARTICLE VI - Affirmative Covenants of Canadian Borrowers ........................................................... 38
Section 6.1. Payment and Performance ..................................................................... 38
Section 6.2. Books, Financial Statements and Reports ..................................................... 39
Section 6.3. Other Information and Inspections ........................................................... 40
Section 6.4. Notice of Material Events and Change of Address ............................................. 40
Section 6.5. Maintenance of Properties ................................................................... 41
Section 6.6. Maintenance of Existence and Qualifications ................................................. 41
Section 6.7. Payment of Trade Liabilities, Taxes, etc .................................................... 41
Section 6.8. Insurance ................................................................................... 41
Section 6.9. Performance on Canadian Borrowers' Behalf ................................................... 41
Section 6.10. Interest .................................................................................... 42
Section 6.11. Compliance with Law ......................................................................... 42
Section 6.12. Environmental Matters ....................................................................... 42
Section 6.13. Bank Accounts; Offset ....................................................................... 42
ARTICLE VII - Negative Covenants of Canadian Borrowers ............................................................. 43
Section 7.1. Indebtedness ................................................................................ 43
Section 7.2. Limitation on Liens ......................................................................... 44
Section 7.3. Limitation on Mergers ....................................................................... 44
Section 7.4. Limitation on Issuance of Securities by Subsidiaries of US Borrower; Ownership of
certain Restricted Subsidiaries by US Borrower ............................................ 44
Section 7.5. Limitation on Restricted Payments ........................................................... 45
Section 7.6. Transactions with Affiliates ................................................................ 45
Section 7.7. Funded Debt to Total Capitalization ......................................................... 45
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ARTICLE VIII - Events of Default and Remedies ...................................................................... 45
Section 8.1. Events of Default ........................................................................... 45
Section 8.2. Remedies .................................................................................... 48
ARTICLE IX - Canadian Agent ........................................................................................ 48
Section 9.1. Appointment, Powers, and Immunities ......................................................... 48
Section 9.2. Reliance by Canadian Agent .................................................................. 49
Section 9.3. Defaults .................................................................................... 50
Section 9.4. Rights as Lender ............................................................................ 50
Section 9.5. Indemnification ............................................................................. 50
Section 9.6. Non-Reliance on Canadian Agent and Other Lenders ............................................ 51
Section 9.7. Administrative Agent in its Individual Capacity ............................................. 51
Section 9.8. Sharing of Set-Offs and Other Payments ...................................................... 51
Section 9.9. Investments ................................................................................. 52
Section 9.10. Benefit of Article IX ....................................................................... 52
Section 9.11. Resignation ................................................................................. 52
Section 9.12. Lenders to Remain Pro Rata .................................................................. 53
Section 9.13. Other Agents ................................................................................ 53
ARTICLE X - Miscellaneous .......................................................................................... 53
Section 10.1. Waivers and Amendments; Acknowledgments ..................................................... 53
Section 10.2. Survival of Agreements; Cumulative Nature ................................................... 55
Section 10.3. Notices ..................................................................................... 55
Section 10.4. Payment of Expenses; Indemnity .............................................................. 56
Section 10.5. Parties in Interest ......................................................................... 57
Section 10.6. Assignments and Participations .............................................................. 57
Section 10.7. Confidentiality ............................................................................. 60
Section 10.8. Governing Law; Submission to Process ........................................................ 61
Section 10.9. Waiver of Judgment Interest Act (Alberta .................................................... 61
Section 10.10. Deemed Reinvestment Not Applicable .......................................................... 61
Section 10.11. Limitation on Interest ...................................................................... 61
Section 10.12. Termination; Limited Survival ............................................................... 62
Section 10.13. Severability ................................................................................ 63
Section 10.14. Counterparts; Fax ........................................................................... 63
Section 10.15. Waiver of Jury Trial, Punitive Damages, etc ................................................. 63
Section 10.16. Defined Terms ............................................................................... 63
Section 10.17. Annex I, Exhibits and Schedules; Additional Definitions ..................................... 64
Section 10.18. Amendment of Defined Instruments ............................................................ 64
Section 10.19. References and Titles ....................................................................... 64
Section 10.20. Calculations and Determinations ............................................................. 64
Section 10.21. Construction of Indemnities and Releases .................................................... 64
Section 10.22. Separate Obligations ........................................................................ 65
Section 10.23. Termination of Existing Canadian Agreement .................................................. 65
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Schedules and Exhibits:
Annex I - Defined Terms
Annex II - Lenders Schedule
Schedule 1 - Disclosure Schedule
Schedule 2 - Surety Bonds & Letters of Credit
Exhibit A-1 - Promissory Note
Exhibit A-2 - Canadian Swing Promissory Note
Exhibit B - Borrowing Notice
Exhibit C - Continuation/Conversion Notice
Exhibit D - Certificate Accompanying Financial Statements
Exhibit E - Opinion of Counsel for Restricted Persons
Exhibit F - Assignment and Acceptance Agreement
Exhibit G - Re-allocation Notice
Exhibit H - [Reserved]
Exhibit I - Competitive Bid Request
Exhibit J - Invitation to Bid
Exhibit K - Competitive Bid
Exhibit L - Competitive Bid Accept/Reject Letter
Exhibit M - Competitive Bid Note
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of August 29, 2000, by and among
Northstar Energy Corporation, an Alberta corporation, and Devon Energy Canada
Corporation, an Alberta corporation (herein collectively, called "Canadian
Borrowers"), Bank of America Canada, individually and as administrative agent
(herein called "Canadian Agent") and the undersigned Lenders. In consideration
of the mutual covenants and agreements contained herein the parties hereto agree
as follows:
ARTICLE I - Canadian Advances
Section 1.1. Commitments to Make Advances; Canadian Notes.
(a) Canadian Loans. Subject to the terms and conditions hereof, each
Lender agrees to extend credit to each Canadian Borrower by advancing funds to
the applicable Canadian Borrower specified in a Borrowing Notice (herein called
such Lender's "Canadian Revolving Loans" and, with reference to Canadian
Resident Lenders only, accepting or purchasing drafts of Bankers' Acceptances
issued under this Agreement by the applicable Canadian Borrower specified in a
Borrowing Notice herein called such Lender's "Bankers' Acceptances"; each
Lender's Canadian Revolving Loans, Canadian Term Loans, and Bankers' Acceptances
are herein collectively called such Lender's "Canadian Advances") upon Canadian
Borrower's request from time to time during the Canadian Revolving Period,
provided that (i) subject to Sections 2.1, 2.2., 3.3, 3.4 and 3.5, all Lenders
are requested to make Canadian Advances of the same Type in accordance with
their respective Percentage Shares and as part of the same Borrowing and (ii)
such Lender's Percentage Share of the Canadian Facility Usage shall never exceed
such Lender's Percentage Share of the Canadian Maximum Credit Amount. The
aggregate amount of all Canadian Loans in any Borrowing must be an integral
multiple of $100,000 in the Applicable Currency which equals or exceeds
$1,000,000 in the Applicable Currency or must equal the unadvanced portion of
the Canadian Maximum Credit Amount. Each Canadian Borrower may have no more than
ten Borrowings of Eurodollar Loans outstanding at any time. The obligation of
each Canadian Borrower to repay to each Lender the aggregate amount of all
Canadian Loans (excluding Canadian Swing Loans) made by such Lender to such
Borrower, together with interest accruing in connection therewith, shall be
evidenced by a separate promissory note (herein called such Lender's "Canadian
Note") made, by each Canadian Borrower payable to the order of such Lender in
the form of Exhibit A-1 with appropriate insertions. The amount of principal
owing on any Lender's Canadian Note at any given time shall be the aggregate
amount of all Canadian Loans theretofore made by such Lender minus all payments
of principal theretofore received by such Lender on such Canadian Note. Interest
on each Canadian Note shall accrue and be due and payable as provided herein and
therein. Each Lender's Canadian Note shall be due and payable as provided herein
and therein and shall be due and payable in full on the Canadian Facility
Maturity Date.
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(b) Swing Loans. Subject to the terms and conditions hereof, Canadian
Swing Lender agrees to make loans to each Canadian Borrower (herein called
"Canadian Swing Loans") upon the applicable Canadian Borrower's request from
time to time during the Canadian Revolving Period, provided that (i) the
Canadian Facility Usage shall never exceed the Canadian Maximum Credit Amount,
and (ii) the aggregate amount of Canadian Swing Loans outstanding shall never
exceed the Canadian Swing Sublimit. The aggregate amount of all Canadian Swing
Loans in any Borrowing must be an integral multiple of C $100,000 which equals
or exceeds C $1,000,000 or must equal the unadvanced portion of the Canadian
Maximum Credit Amount. The obligation of each Canadian Borrower to repay to
Canadian Swing Lender the aggregate amount of all Canadian Swing Loans made by
Canadian Swing Lender, together with interest accruing in connection therewith,
shall be evidenced by a separate promissory note (herein called each Canadian
Borrower's "Canadian Swing Note") made by each Canadian Borrower payable to the
order of Canadian Swing Lender in the form of Exhibit A-2 with appropriate
insertions. The amount of principal owing on each Canadian Swing Note at any
given time shall be the aggregate amount of all Canadian Swing Loans theretofore
made by Canadian Swing Lender minus all payments of principal theretofore
received by Canadian Swing Lender on such Canadian Swing Note (including as a
result of any refinancing pursuant to Section 1.11). Interest on each Canadian
Swing Note shall accrue and be due and payable as provided herein and therein.
Each Canadian Swing Note shall be due and payable as provided herein and
therein, and shall be due and payable in full on the Conversion Date. Subject to
the terms and conditions hereof, each Canadian Borrower may borrow, repay, and
reborrow Canadian Swing Loans under the Canadian Agreement during the Canadian
Revolving Period.
Section 1.2. Requests for New Canadian Advances. The applicable Canadian
Borrower must give to Canadian Agent written notice (or telephonic notice
promptly confirmed in writing) of any requested Borrowing of new Canadian Loans
and any requested Borrowing by way of new Bankers' Acceptances. Each such notice
constitutes a "Borrowing Notice" hereunder and must:
(a) specify (i) the aggregate amount of any such Borrowing of new
Canadian Base Rate Loans and the date on which such Canadian Base Rate Loans are
to be advanced, (ii) the aggregate amount of any such Borrowing of Canadian
Prime Rate Loans and the date on which such Canadian Prime Rate Loans are to be
advanced, (iii) the aggregate amount of any such Borrowing of new US Dollar
Eurodollar Loans, the date on which such US Dollar Eurodollar Loans are to be
advanced (which shall be the first day of the Eurodollar Interest Period which
is to apply thereto), and the length of the applicable Eurodollar Interest
Period, (iv) the aggregate amount of any such Borrowing of new Canadian Dollar
Eurodollar Loans, the date on which such Canadian Dollar Eurodollar Loans are to
be advanced (which shall be the first day of the Eurodollar Interest Period
which is to apply thereto), and the length of the applicable Eurodollar Interest
Period, (v) the aggregate amount of any such Borrowing by way of Bankers'
Acceptances (subject to Section 2.2(f)), and the date on which such Bankers'
Acceptances are to be accepted and the maturity of such Bankers' Acceptances, or
(vi) the aggregate amount of any such Borrowing of new Canadian Swing Loans and
the date on which such Canadian Swing Loans are to be advanced; and
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(b) be received by Canadian Agent (i) in the case of Canadian Advances
other than Canadian Swing Loans, not later than 11:00 a.m., Toronto, Ontario
time, on (1) on the Business Day preceding the day on which any such Canadian
Base Rate Loans or Canadian Prime Rate Loans are to be made, (2) the third
Business Day preceding the day on which any such Eurodollar Loans are to be made
or (3) the third Business Day before such Bankers' Acceptances are to be issued
and (ii) in the case of Canadian Advances that are Canadian Swing Loans, not
later than 2:00 p.m., Toronto, Ontario time on the Business Day on which any
such Canadian Swing Loans are to be made.
Each such written request or confirmation must be made in the form and substance
of the "Borrowing Notice" attached hereto as Exhibit B, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by the applicable Canadian Borrower as to the
matters which are required to be set out in such written confirmation. Upon
receipt of any such Borrowing Notice, Canadian Agent shall give each Lender
prompt notice of the terms thereof (excluding Canadian Swing Loans) not later
than 5:00 p.m. Toronto, Ontario time on the day it receives such Borrowing
Notice from the applicable Canadian Borrower if it receives such Borrowing
Notice by 11:00 a.m., Toronto, Ontario time, otherwise on the next Business Day.
Each Borrowing Notice shall be irrevocable and binding on the applicable
Canadian Borrower. If all conditions precedent to such new Canadian Advances
have been met, (i) each Lender will on the date requested promptly remit to
Canadian Agent by 1:00 p.m. Toronto, Ontario time its Canadian Advances made in
Canadian Dollars to Canadian Agent's office in Toronto, Canada and its Canadian
Advances made in United States Dollars to the US Account in New York, New York)
in immediately available funds, and upon receipt of such funds, unless to its
actual knowledge any conditions precedent to such Canadian Advances have been
neither met nor waived as provided herein, Canadian Agent shall promptly make
such Canadian Advances available to the applicable Canadian Borrower or (ii)
each Canadian Resident Lender will accept drafts of Bankers' Acceptances on the
date requested in accordance with Sections 2.1 through 2.3. Unless Canadian
Agent shall have received prompt notice from a Lender that such Lender will not
make available to Canadian Agent such Lender's new Canadian Advance, Canadian
Agent may in its discretion assume that such Lender has made such Canadian
Advance available to Canadian Agent in accordance with this section and Canadian
Agent may if it chooses, in reliance upon such assumption, make such Canadian
Advance available to the applicable Canadian Borrower. If and to the extent such
Lender shall not so make its new Canadian Advance available to Canadian Agent,
such Lender and the applicable Canadian Borrower severally agree to pay or repay
to Canadian Agent within three days after demand the amount of such Canadian
Advance together with interest thereon, for each day from the date such amount
was made available to the applicable Canadian Borrower until the date such
amount is paid or repaid to Canadian Agent, with interest at (1) the Canadian
Prime Rate, if such Lender is making such payment and (2) the interest rate
applicable at the time to the other new Canadian Advances made on such date, if
a Canadian Borrower is making such repayment; provided that Canadian Agent gave
notice of the terms of the Borrowing Notice to such Lender in accordance with
the terms of this Section 1.2. If neither such Lender nor such Canadian Borrower
pays or repays to Canadian Agent such amount within such three-day period,
Canadian Agent shall in addition to such amount be entitled to recover from such
Lender and from the applicable Canadian Borrower, on demand, interest on such
Canadian Advance at the Default Rate
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applicable thereto, calculated from the date such amount was made available to
such Canadian Borrower. The failure of any Lender to make any new Canadian
Advance to be made by it hereunder shall not relieve any other Lender of its
obligation hereunder, if any, to make its new Canadian Advance, but no Lender
shall be responsible for the failure of any other Lender to make any new
Canadian Advance to be made by such other Lender.
Section 1.3. Continuations and Conversions of Existing Canadian Advances
. Subject to the terms of Section 2.3 with respect to Bankers' Acceptances, the
applicable Canadian Borrower may make the following elections with respect to
Canadian Advances and Canadian Swing Loans already outstanding under this
Agreement: (i) to convert any Type of Canadian Advance to any other Type of
Canadian Advance, provided that any such Conversion of any Eurodollar Loan must
be made on the last day of the Eurodollar Interest Period applicable thereto and
any such Conversion of a Bankers' Acceptance must be made on the date of
maturity thereof; (ii) to continue Eurodollar Loans beyond the expiration of
such Eurodollar Interest Period by designating a new Eurodollar Interest Period
to take effect at the time of such expiration, and to rollover any existing
Bankers' Acceptance by designating the new maturity date applicable thereto; and
(iii) to convert Canadian Swing Loans to any Type of Canadian Advances as a
refinancing of such Canadian Swing Loans pursuant to Section 1.11. In making
such elections, the applicable Canadian Borrower may combine existing Canadian
Advances made pursuant to separate Borrowings into one new Borrowing or divide
existing Canadian Advances made pursuant to one Borrowing into separate new
Borrowings, provided that Canadian Borrowers may have no more than ten
Borrowings of US Dollar Eurodollar Loans outstanding at any time and no more
than ten Borrowings of Canadian Dollar Eurodollar Loans outstanding at any time.
To make any such election, the applicable Canadian Borrower must give to
Canadian Agent written notice (or telephonic notice promptly confirmed in
writing) of any such Conversion or Continuation of existing Canadian Advances,
with a separate notice given for each new Borrowing. Each such notice
constitutes a "Continuation/Conversion Notice" hereunder and must:
(a) specify the existing Canadian Advances made under this Agreement
which are to be continued or converted;
(b) specify (i) the aggregate amount of any Borrowing of Canadian Base
Rate Loans or Canadian Prime Rate Loans into which such existing Canadian
Advances are to be continued or converted and the date on which such
Continuation or Conversion is to occur, or (ii) the aggregate amount of any
Borrowing of Eurodollar Loans into which such existing Canadian Advances are to
be continued or converted, the date on which such Continuation or Conversion is
to occur (which shall be the first day of the Eurodollar Interest Period which
is to apply to such Eurodollar Loans), and the length of the applicable
Eurodollar Interest Period, or (iii) the amount of any Borrowing of Bankers'
Acceptances into which such existing Canadian Advances are to be continued or
converted, the date on which such Continuation or Conversion is to occur, and
the maturity of such Bankers' Acceptances; and
(c) be received by Canadian Agent not later than 11:00 a.m., Toronto,
Ontario time, on (i) the first Business Day preceding the day on which any such
Continuation or Conversion to
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Canadian Base Rate Loans or Canadian Prime Rate Loans is to occur, or (ii) the
third Business Day preceding the day on which any such Continuation or
Conversion to Eurodollar Loans is to occur, or (iii) on the third Business Day
preceding the day on which any such Continuation or Conversion to Bankers'
Acceptances is to occur.
Each such written request or confirmation must be made in the form and substance
of the "Continuation/Conversion Notice" attached hereto as Exhibit C, duly
completed. Each such telephonic request shall be deemed a representation,
warranty, acknowledgment and agreement by the applicable Canadian Borrower as to
the matters which are required to be set out in such written confirmation. Upon
receipt of any such Continuation/Conversion Notice, Canadian Agent shall give
each Lender prompt notice of the terms thereof. Each Continuation/Conversion
Notice shall be irrevocable and binding on the applicable Canadian Borrower.
During the continuance of any Default, Canadian Borrowers may not make any
election to convert existing Canadian Advances or Canadian Swing Loans made
under this Agreement into Eurodollar Loans or Bankers' Acceptances or continue
existing Eurodollar Loans made under this Agreement as Eurodollar Loans or to
rollover existing Bankers' Acceptances into new Bankers' Acceptances. If (due to
the existence of a Default or for any other reason) the applicable Canadian
Borrower fails to timely and properly give or are prevented hereunder from
giving any Continuation/Conversion Notice with respect to a Borrowing of
existing Eurodollar Loans or Bankers' Acceptances at least three days prior to
the end of the Eurodollar Interest Period applicable thereto or maturity of the
Bankers' Acceptance, such Eurodollar Loans and Bankers' Acceptances shall
automatically be converted into Canadian Base Rate Loans (in the case of US
Dollar Eurodollar Loans) or Canadian Prime Rate Loans (in the case of Canadian
Dollar Eurodollar Loans and Bankers' Acceptances) at the end of such Eurodollar
Interest Period. No new funds shall be repaid by the applicable Canadian
Borrower or advanced by any Lender in connection with any Continuation or
Conversion of existing Canadian Advances pursuant to this section, and no such
Continuation or Conversion shall be deemed to be a new advance of funds for any
purpose; such Continuations and Conversions merely constitute a change in terms
of already outstanding Advances and the interest rate applicable thereto.
Section 1.4. Repayments .
(a) During Canadian Revolving Period . Subject to the terms and
conditions hereof, either Canadian Borrower may borrow, repay, and reborrow
hereunder during the Canadian Revolving Period, so long as (i) the applicable
Canadian Borrower gives notice to Canadian Agent by 2:00 p.m., Toronto, Ontario
time on the Business Day immediately preceding the date of prepayment (and
Canadian Agent shall give each Lender notice thereof by 4:30 p.m. Toronto,
Ontario time on the date such notice is received from the applicable Borrower if
it receives such Borrowing Notice by 11:00 a.m., Toronto, Ontario time,
otherwise on the next Business Day) all partial prepayments of principal
concurrently paid on the Canadian Loans are increments of $100,000 in the
Applicable Currency and in an aggregate amount greater than or equal to
$1,000,000 in the Applicable Currency and (ii) the applicable Canadian Borrower
pays all amounts owing in connection with the prepayment of any Eurodollar Loan
owing under Section 3.6.
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(b) During Canadian Term Period.
(i) Optional Prepayments. Either Canadian Borrower may, upon giving
notice to Canadian Agent by 2:00 p.m., Toronto, Ontario time on the Business Day
immediately preceding the date of prepayment (and Canadian Agent shall give each
Lender notice thereof by 5:00 p.m. Toronto, Ontario time on the date such notice
is received from the applicable Canadian Borrower if it receives such notice by
11:00 a.m., Toronto, Ontario time, otherwise on the next Business Day), from
time to time during the Term Period and without premium or penalty, prepay the
Canadian Loans including Competitive Bid Notes, in whole or in part, so long as
all partial prepayments of principal concurrently paid on the Canadian Loans are
in increments of $100,000 in the Applicable Currency and in an aggregate amount
greater than or equal to $1,000,000 in the Applicable Currency and so long as
Canadian Borrowers pay all amounts owing in connection with the prepayment of
any Eurodollar Loan owing under Section 3.6, and provided that no Bankers'
Acceptance may be prepaid prior to its stated maturity date except in accordance
with Section 2.5. Each prepayment of principal under this section shall be
accompanied by all interest then accrued and unpaid on the principal so prepaid,
shall be in addition to, and not in lieu of, all payments otherwise required to
be paid under the Canadian Loan Documents at the time of such prepayment, and
shall first reduce the semi-annual scheduled installments (other than the final
installment) during the Term Period in respect of Canadian Loans that are not
Competitive Bid Loans, then reduce the final installment in respect of Canadian
Loans that are not Competitive Bid Loans, and then, unless otherwise designated
by Canadian Borrowers, reduce the outstanding Competitive Bid Loans in order of
shortest maturity.
(ii) Scheduled Repayments of Principal. Subject to Section
1.4(b)(iii) during the Term Period, Borrower shall repay the principal of the
Canadian Loans that are not Competitive Bid Loans in equal semi-annual
installments, each in an amount equal to two and one-half percent (2.5%) of the
outstanding principal balance of the Canadian Advances on the Conversion Date.
Such installments shall be due and payable on each June 30 and December 31 each
year and in a final installment due and payable on the Canadian Facility
Maturity Date in an amount equal to the entire unpaid principal balance of such
Loans outstanding on the Canadian Facility Maturity Date.
(iii) Income Tax Act (Canada). Except as otherwise provided in
Section 8.1, in no event shall either Canadian Borrower be required to repay
more than 25% of the principal amount (as defined in the Income Tax Act
(Canada)) of the Canadian Advances made to it prior to five years and a day
after the Conversion Date, including, but not limited to payments under
Section 1.4(b)(ii), 1.4(c) and 1.4(d).
(c) Mandatory Prepayments. Except to the extent permitted by Section
1.4(d), and subject to Section 1.4(e), if the aggregate principal amount of the
outstanding Canadian Obligations ever exceeds the Canadian Maximum Credit
Amount, Canadian Borrowers shall immediately prepay the principal of the
Canadian Loans outstanding under the Canadian Agreement in an amount at least
equal to such excess. Each prepayment of principal under this
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section shall be accompanied by all interest then accrued and unpaid on the
principal so prepaid. Any principal or interest prepaid pursuant to this section
shall be in addition to, and not in lieu of, all payments otherwise required to
be paid under the Canadian Loan Documents at the time of such prepayment.
(d) Currency Fluctuations. Notwithstanding any other provision of this
Agreement, if any Canadian Loan outstanding is denominated in C$, Canadian Agent
shall have the right to calculate the outstanding Canadian Obligations for all
purposes including making a determination from time to time of the available
undrawn portion of the Canadian Maximum Credit Amount. If following such
calculation, Canadian Agent determines that the outstanding Canadian Obligations
are greater than 105% of the Canadian Advances permitted hereby to be
outstanding at such time, then Canadian Agent shall so advise Canadian Borrowers
and, subject to Section 1.4(e), Canadian Borrowers shall repay, on the later of
five Business Days after such advice and the next applicable Interest Payment
Date immediately following such date of calculation, an amount sufficient to
eliminate the excess over and above the aggregate amount of the Canadian Loans
permitted hereby to be outstanding at such time, together with all accrued
interest on the amount so paid.
(e) Application of Prepayment. Any mandatory prepayment of any principal
amount (for the purposes of this Section, as defined in the Income Tax Act
(Canada)) made by a Canadian Borrower pursuant to Sections 1.4(c) and 1.4(d) or
otherwise in respect of a particular loan, shall reduce the semi-annual
scheduled installments (other than the final installment) during the Term Period
in respect of that loan in inverse order of maturity. Such mandatory prepayments
shall be applied to the Canadian Loans (other than Bankers' Acceptances and
Competitive Bid Loans) pro rata based on outstanding principal; provided that if
such prepayment of Canadian Loans does not eliminate such mandatory prepayment
obligation, the further repayments shall apply first to Competitive Bid Loans in
order of shortest maturity, and second to an escrow fund maintained in
accordance with Section 2.5.
Section 1.5. Interest Rates and Fees.
(a) Interest Rates. The Canadian Loans shall bear interest payable by
the applicable Canadian Borrower as follows and all accrued and unpaid interest
on the Canadian Loans shall be due and payable on the applicable Interest
Payment Date at the place set forth in the Canadian Notes:
(i) Each Canadian Base Rate Loan shall bear interest on each day
outstanding at the Canadian US Dollar Base Rate in effect on such day.
(ii) Each Canadian Prime Rate Loan shall bear interest on each
day outstanding at the Canadian Prime Rate in effect on such day.
(iii) Each US Dollar Eurodollar Loan shall bear interest on each
day during the related Eurodollar Interest Period at the related
Adjusted US Dollar Eurodollar Rate in effect on such day.
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(iv) Each Canadian Dollar Eurodollar Loan shall bear interest on
each day during the related Eurodollar Interest Period at the related
Adjusted Canadian Dollar Eurodollar Rate in effect on such day.
(v) Each Canadian Swing Loan shall bear interest on each day
outstanding at the Canadian Swing Rate for such Canadian Swing Loan in
effect on such day.
(vi) Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing, each Canadian Loan shall bear interest on
each day outstanding at the applicable Default Rate. Past due payments
of principal and interest shall bear interest at the rates and in the
manner set forth in the Canadian Notes.
(b) Facility Fees. In consideration of each Lender's commitment to make
Canadian Advances under this Agreement, Canadian Borrowers will pay to Canadian
Agent for the account of each Lender a facility fee determined on a daily basis
by applying (i) the Facility Fee Rate to such Lender's Percentage Share of the
Canadian Maximum Credit Amount on each day during the Canadian Revolving Period
and (ii) the Facility Fee Rate to such Lender's Percentage Share of the Canadian
Facility Usage on each day from the Conversion Date until the Canadian Facility
Maturity Date. This facility fee shall be due and payable in arrears on the last
day of each Fiscal Quarter and on the Canadian Facility Maturity Date.
(c) Utilization Fees. In consideration of each Lender's commitment to
make Canadian Advances under this Agreement, Canadian Borrowers will pay to
Canadian Agent for the account of each Lender a utilization fee determined on a
daily basis by applying (i) a rate of 7.5 Basis Points per annum to such
Lender's Percentage Share of the Canadian Facility Usage on each day during the
term of this Agreement that the Canadian Facility Usage exceeds thirty-three
percent (33%) of the Canadian Maximum Credit Amount, and (ii) a rate of 15 Basis
Points per annum to such Lender's Percentage Share of the Canadian Facility
Usage on each day during the term of this Agreement that the Canadian Facility
Usage exceeds sixty-six percent (66%) of the Canadian Maximum Credit Amount.
This utilization fee shall be due and payable in arrears on each Interest
Payment Date for Canadian US Dollar Base Rate Loans and on the date all Canadian
Obligations are repaid in full.
(d) Stamping Fees. In consideration of each Canadian Resident Lender's
commitment to accept or participate in Bankers' Acceptances under this
Agreement, the applicable Canadian Borrower will pay to Canadian Agent for the
account of such Lender the Stamping Fee Rate multiplied by the face amount of
each Bankers' Acceptance accepted by such Lender under this Agreement calculated
for the number of days in the term of such Bankers' Acceptance. Such fee shall
be due and payable on the date on which such Bankers' Acceptances are accepted
and if such Canadian Resident Lender is purchasing such Bankers' Acceptance,
such fee shall be deducted from the Discount Proceeds paid to the applicable
Canadian Borrower.
(e) Canadian Agent's Fees. In addition to all other amounts due to
Canadian Agent under the Canadian Loan Documents, Canadian Borrowers will pay
fees to Canadian Agent as described in a letter agreement dated as of August 1,
2000 between US Agent and US Borrower.
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Section 1.6. Extension of Conversion Date.
(a) Canadian Borrowers may, at their option and from time to time during
the Canadian Revolving Period, request an offer to extend the Canadian Revolving
Period by delivering to Canadian Agent a Request for an Offer of Extension not
more than ninety days and not less than forty-five days prior to the then
current Conversion Date. Canadian Agent shall forthwith provide a copy of the
Request for an Offer of Extension to each of the Lenders. Upon receipt from
Canadian Agent of an executed Request for an Offer of Extension, each Lender
shall, within thirty days after the date of such Lender's receipt of such
request from Canadian Agent, either:
(i) notify Canadian Agent of its acceptance of the Request for
an Offer of Extension, and the terms and conditions, if any, upon which
such Lender is prepared to extend the Conversion Date; or
(ii) notify Canadian Agent that the Request for an Offer of
Extension has been denied, such notice to forthwith be forwarded by
Canadian Agent to Canadian Borrowers to allow Canadian Borrowers to seek
a replacement lender pursuant to Section 1.8 (any Lender giving notice
of such denial is herein called a "Non-Accepting Lender"). The failure
of a Lender to so notify Canadian Agent within such thirty day period
shall be deemed to be notification by such Lender to Canadian Agent that
such Lender has denied Canadian Borrowers' Request for an Offer of
Extension.
(b) Provided that all Lenders provide notice to Canadian Agent under
Section 1.6(a) that they accept the Request for an Offer of Extension, or if
there are Non-Accepting Lenders, such Lenders shall have been repaid pursuant to
Section 1.8 or replacement lenders shall have become parties hereto pursuant to
Section 1.8 and shall have accepted the Request for an Offer of Extension, such
acceptance having common terms and conditions, Canadian Agent shall deliver to
Canadian Borrowers an Offer of Extension incorporating the said terms and
conditions. Such offer shall be open for acceptance by Canadian Borrowers until
the fifth Business Day immediately preceding the then current Conversion Date.
Upon written notice by Canadian Borrowers to Canadian Agent accepting an
outstanding Offer of Extension and agreeing to the terms and conditions, if any,
specified therein (the date of such notice of acceptance in Section 1.6 and 1.8
being called the "Extension Date"), the Conversion Date shall be extended to the
date 364 days from the Extension Date and the terms and conditions specified in
such Offer of Extension shall be immediately effective.
(c) Canadian Borrowers understand that the consideration of any Request
for an Offer of Extension constitutes an independent credit decision which each
Lender retains the absolute and unfettered discretion to make and that no
commitment in this regard is hereby given by a Lender and that any offer to
extend the Conversion Date may be on such terms and conditions in addition to
those set out herein as the extending Lenders stipulate.
Section 1.7. Conversion to Canadian Term Loan. Unless there is an
extension of the Canadian Revolving Period in accordance with Section 1.6,
effective at 11:59 p.m. Toronto,
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Ontario time on the day immediately preceding the Conversion Date, and provided
that no Event of Default shall have occurred and be continuing, (i) each
Lender's obligation to make new Canadian Advances, Canadian Swing Lender's
obligation to make new Canadian Swing Loans, and Canadian LC Issuer's obligation
to issue Letters of Credit hereunder shall be canceled automatically, and (ii)
each Lender's Canadian Loans shall become term Canadian Loans ("Canadian Term
Loans") maturing on the Canadian Facility Maturity Date.
Section 1.8. Non-Accepting Lender. Provided that Lenders whose
Percentage Shares represent more than 50% but less than 100% of the Canadian
Maximum Credit Amount provide notice to Agent under Section 1.6(a) that they
accept the Request for an Offer of Extension, on notice of Canadian Borrowers to
Agent, Canadian Borrowers shall be entitled to choose any of the following in
respect of each Non-Accepting Lender prior to the expiration of the Canadian
Revolving Period, provided that if Canadian Borrowers do not make an election
prior to the expiration of the Canadian Revolving Period, Canadian Borrowers
shall be deemed to have irrevocably elected to exercise the provisions of
Section 1.8(b)(ii):
(a) (i) the Non-Accepting Lender's obligations to make Canadian Advances
shall be canceled as of the Extension Date, the Canadian Maximum Credit Amount
shall be reduced by the amount so canceled, and on or prior to the Extension
Date the Canadian Borrowers shall repay in full all Canadian Obligations then
outstanding to the Non-Accepting Lender (as defined in Section 1.6(a)(ii)), or
(ii) replace the Non-Accepting Lender by reaching satisfactory arrangements with
one or more existing Lenders or new Lenders, for the purchase, assignment and
assumption of all Canadian Obligations and US Obligations of the Non-Accepting
Lender, provided that any new Lender, with, if necessary, any Affiliate, shall
take a pro rata assignment of both Canadian Obligations and US Obligations, and
such Non-Accepting Lender shall be obligated to sell such Obligations in
accordance with such satisfactory arrangements; or
(b) Canadian Borrowers may elect to revoke and cancel the Request for an
Offer of Extension by giving notice of such revocation and cancellation to Agent
(which shall promptly notify the Lenders thereof), and concurrently therewith,
shall have the option to (i) cancel the obligations of Lenders under the
Canadian Agreement and, subject to the notice requirements set forth in Section
1.6(a) and to the provisions of Article III, repay in full all Canadian
Obligations, or (ii) have the outstanding Canadian Loans that are not
Competitive Bid Loans on the Conversion Date become term loans as provided in
Section 1.7.
In connection with any such replacement of a Lender Party pursuant to this
Section 1.8, the applicable Canadian Borrower shall pay all costs that would
have been due to such Lender Party pursuant to Section 3.6 if such Lender
Party's Canadian Advances had been prepaid at the time of such replacement.
Section 1.9. Competitive Bid Loans.
(a) Either Canadian Borrower may request that each Canadian Resident
Lender submit Competitive Bids (on a several basis) for requested maturities of
thirty days or more to the applicable Canadian Borrower on any Business Day
during the Canadian Revolving Period,
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provided that all Canadian Resident Lenders are requested to make a Competitive
Bid on the same basis at the same time. In order to request Competitive Bids,
the applicable Canadian Borrower shall deliver by hand or facsimile to Canadian
Agent a Competitive Bid Request, to be received by Canadian Agent not later than
9:00 a.m., Toronto, Ontario time one Business Day before the date specified for
a proposed Competitive Bid Loan. A Competitive Bid Request that does not conform
substantially to the format of Exhibit I may be rejected in Canadian Agent's
sole discretion, and Canadian Agent shall promptly notify the applicable
Canadian Borrower of such rejection by facsimile. After receiving an acceptable
Competitive Bid Request, Canadian Agent shall no later than 12:00 noon, Toronto,
Ontario time on the date such Competitive Bid Request is received by Canadian
Agent, by facsimile deliver to Canadian Resident Lenders an Invitation to Bid
substantially in the form of Exhibit J with respect thereto.
(b) Each Canadian Resident Lender may, in its sole discretion, make one
or more Competitive Bids to Canadian Agent responsive to each Competitive Bid
Request given by the applicable Canadian Borrower. Each Competitive Bid by a
Canadian Resident Lender must be received by Canadian Agent by facsimile not
later than 9:00 a.m., Toronto, Ontario time on the date specified for a proposed
Competitive Bid Loan. Multiple bids may be accepted by Canadian Agent.
Competitive Bids that do not conform substantially to the format of Exhibit K
may be rejected by Canadian Agent after conferring with, and upon the
instruction of, the applicable Canadian Borrower, and Canadian Agent shall
notify the bidding Canadian Resident Lender of such rejection as soon as
practicable. If any Canadian Resident Lender shall elect not to make a
Competitive Bid, such Canadian Resident Lender shall so notify Canadian Agent by
facsimile not later than 9:00 a.m., Toronto, Ontario time, on the date specified
for a Competitive Bid Loan; provided, however, that failure by any Canadian
Resident Lender to give such notice shall not cause such Canadian Resident
Lender to be obligated to make any Competitive Bid Loan and by such failure such
Lender shall be deemed to have rejected such Competitive Bid. A Competitive Bid
submitted by a Canadian Resident Lender shall be irrevocable.
(c) Promptly, and in no event later than 9:30 a.m., Toronto, Ontario
time, on the date specified for a proposed Competitive Bid Loan, Canadian Agent
shall notify the applicable Canadian Borrower by facsimile of all the
Competitive Bids made, the Competitive Bid Rate and the principal amount of each
Competitive Bid Loan in respect of which a Competitive Bid was made, and the
identity of each Canadian Resident Lender that made each Competitive Bid.
Canadian Agent shall send a copy of all Competitive Bids to the applicable
Canadian Borrower for its records as soon as practicable after completion of the
bidding process.
(d) The applicable Canadian Borrower may, subject only to the provisions
hereof, accept or reject any Competitive Bid. The applicable Canadian Borrower
shall notify Canadian Agent by facsimile pursuant to a Competitive Bid
Accept/Reject Letter whether and to what extent the applicable Canadian Borrower
has decided to accept or reject any or all of the Competitive Bids, not later
than 10:00 a.m., Toronto, Ontario time, on the date specified for a proposed
Competitive Bid Loan; provided, however, that:
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(i) the failure by the applicable Canadian Borrower to accept or
reject any Competitive Bid within the time period specified herein shall
be deemed to be a rejection of such Competitive Bid,
(ii) the aggregate amount of the Competitive Bids accepted by
the applicable Canadian Borrower shall not exceed the principal amount
specified in the Competitive Bid Request,
(iii) the aggregate amount of all outstanding Canadian Loans and
Canadian LC Obligations shall never exceed the Canadian Maximum Credit
Amount,
(iv) if the applicable Canadian Borrower shall accept a
Competitive Bid or Competitive Bids made at a particular Competitive Bid
Rate, but the amount of such Competitive Bid or Competitive Bids shall
cause the total amount of Competitive Bids to be accepted by the
applicable Canadian Borrower to exceed the amount specified in the
Competitive Bid Request, then the applicable Canadian Borrower shall
accept a portion of such Competitive Bid or Competitive Bids in an
amount equal to the amount specified in the Competitive Bid Request less
the amount of all other Competitive Bids accepted with respect to such
Competitive Bid Request, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid at such
Competitive Bid Rate, and
(v) no Competitive Bid shall be accepted for a Competitive Bid
Loan unless such Competitive Bid Loan is in a minimum principal amount
of C $ 5,000,000 or a higher integral multiple of C $1,000,000;
provided, however, that if a Competitive Bid Loan must be in an amount
less than C $5,000,000 because of the provisions of clause (iv) above,
such Competitive Bid Loan may be for a minimum of C $1,000,000 or any
higher integral multiple thereof, and in calculating the pro rata
allocation of acceptances or portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (iv), the amounts shall be
rounded to integral multiples of C $1,000,000 in a manner which shall be
in the sole and absolute discretion of the applicable Canadian Borrower.
(e) Promptly on each date the applicable Canadian Borrower accepts a
Competitive Bid, Canadian Agent shall notify each Canadian Resident Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by facsimile transmission sent by Canadian
Agent, and each successful bidder will thereupon become bound, subject to the
other applicable conditions hereof, to make the Competitive Bid Loan in respect
of which its Competitive Bid has been accepted. After completing the
notifications referred to in the immediately preceding sentence, Canadian Agent
shall notify each Canadian Resident Lender of the aggregate principal amount of
all Competitive Bids accepted. Each Canadian Resident Lender which is to make a
Competitive Bid Loan shall, before 11:00 a.m., Toronto, Ontario time, on the
borrowing date specified in the Competitive Bid Request applicable thereto, make
available to Canadian Agent in immediately available funds the amount of each
Competitive Bid Loan to be made by such Canadian Resident Lender, and Canadian
Agent shall promptly deposit such funds to an account designated by the
applicable Canadian Borrower. As soon as practicable thereafter,
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Canadian Agent shall notify each Canadian Resident Lender of the aggregate
amount of Competitive Bid Loans advanced, the respective Competitive Bid
Interest Periods thereof and Competitive Bid Rate applicable thereto.
(f) The obligation of the applicable Canadian Borrower to repay to each
Canadian Resident Lender the aggregate amount of all Competitive Bid Loans made
by such Canadian Resident Lender, together with interest accruing in connection
therewith, shall be evidenced by promissory notes (respectively, such Canadian
Resident Lender's "Competitive Bid Note") made by the applicable Canadian
Borrower payable to the order of such Canadian Resident Lender in the form of
Exhibit M, with appropriate insertions. The amount of principal owing on any
Canadian Resident Lender's Competitive Bid Note at any given time shall be the
aggregate amount of all Competitive Bid Loans theretofore made by such Canadian
Resident Lender thereunder minus all payments of principal theretofore received
by such Canadian Resident Lender thereon. Interest on each Competitive Bid Note
shall accrue and be due and payable as provided herein and therein. The
applicable Canadian Borrower shall repay on the final day of the Competitive Bid
Interest Period of each Competitive Bid Loan (such date being that specified by
the applicable Canadian Borrower for repayment of such Competitive Bid Loan in
the related Competitive Bid Request and such date being no later than six months
after the date of the Competitive Bid Loan) the then unpaid principal amount of
such Competitive Bid Loan. Subject to Section 1.4(b) and the payment of amounts
described in Section 3.6, the applicable Canadian Borrower shall have the right
to prepay any principal amount of any Competitive Bid Loan.
(g) No Competitive Bid Loan shall be made within five Business Days
after the date of any other Competitive Bid Loan, unless the applicable Canadian
Borrower and Canadian Agent shall mutually agree otherwise. If Canadian Agent
shall at any time elect to submit a Competitive Bid in its capacity as a
Canadian Resident Lender, it shall submit such bid directly to the applicable
Canadian Borrower requesting such Competitive Bid one quarter of an hour earlier
than the latest time at which the other Canadian Resident Lenders are required
to submit their bids to Canadian Agent.
Section 1.10. Use of Proceeds. Canadian Borrowers shall use all Canadian
Advances and Canadian Swing Loans to pay in full, contemporaneously with the
making of the first Canadian Loan or the issuance of the first Letter of Credit,
all indebtedness outstanding under the Existing Canadian Agreement and
thereafter (i) to finance capital expenditures, (ii) to refinance Matured
Canadian LC Obligations outstanding under this Agreement, and (iii) to provide
working capital for its operations and for other general business purposes.
Canadian Borrowers shall use all Letters of Credit for its general corporate
purposes. In no event shall the funds from any Canadian Loan or any Letter of
Credit be used directly or indirectly by any Person for personal, family,
household or agricultural purposes or for the purpose, whether immediate,
incidental or ultimate, of purchasing, acquiring or carrying any "margin stock"
(as such term is defined in Regulation U promulgated by the Board of Governors
of the Federal Reserve System) or to extend credit to others directly or
indirectly for the purpose of purchasing or carrying any such margin stock. Each
Canadian Borrower represents and warrants that such Canadian Borrower is not
engaged principally, or as one of such Canadian Borrower's important activities,
in the
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business of extending credit to others for the purpose of purchasing or carrying
such margin stock.
Section 1.11. Refinancings of Canadian Swing Loans. Canadian Agent, at
any time in its sole and absolute discretion may (and on the Conversion Date
Canadian Agent shall), upon notice given to each Lender by not later than 11:30
a.m., Toronto, Ontario time, on any Business Day, request that each Lender make
a Canadian Prime Rate Loan (or another Type of Canadian Advance if requested by
the applicable Canadian Borrower in accordance with Section 1.2) in an aggregate
amount equal to its Percentage Share of the aggregate unpaid principal amount of
any outstanding Canadian Swing Loans for the purpose of refinancing such
Canadian Swing Loans (in this section called a "Refinancing Advance"). In any
event, not later than 11:30 a.m., Toronto, Ontario time, on the penultimate
Business Day of each calendar month, Canadian Agent will notify each Lender of
the aggregate amount of Canadian Swing Loans which are then outstanding and the
amount of the Refinancing Advance required to be made by each Lender to
refinance such outstanding Canadian Swing Loans (the aggregate amount of such
Refinancing Advance to be made by each Lender shall equal such Lender's
Percentage Share of such outstanding Canadian Swing Loans). Upon the giving of
notices by Canadian Agent described above, each Lender shall promptly remit to
Canadian Agent such Refinancing Advance in the manner described above in Section
1.2, so long as (a) Canadian Agent believed in good faith that all conditions to
making the subject Canadian Swing Loan were satisfied at the time such Canadian
Swing Loan was made, or (b) if the conditions to such Canadian Swing Loan were
not satisfied, the satisfaction of such conditions have been waived in writing
by Canadian Required Lenders in accordance with the provisions of this Agreement
(collectively, the "Refinancing Conditions"). The proceeds of the Refinancing
Advances made pursuant to the preceding sentence shall be paid to Canadian Agent
(and not to either Canadian Borrower) and applied to the payment of principal of
the outstanding Canadian Swing Loans. If and to the extent any Lender shall not
so make its Refinancing Advance, such Lender and the applicable Canadian
Borrower severally agree to pay to Canadian Agent (for delivery to Canadian
Swing Lender) within three days after demand the amount of such Refinancing
Advance together with interest thereon, for each day from the date such
Refinancing Advance was required to be made until the date such amount is paid
to Canadian Agent, with interest at (1) the Canadian Prime Rate, if such Lender
is making such payment and (2) the interest rate applicable at the time to the
other new Refinancing Advances, if a Canadian Borrower is making such repayment;
provided that Canadian Agent gave notice of the terms of the refinancing to such
Lender in accordance with the terms of this Section 1.11. If neither such Lender
nor such Canadian Borrower pays to Canadian Agent (for delivery to Canadian
Swing Lender) such amount within such three-day period, Canadian Swing Lender
shall in addition to such amount be entitled to recover from such Lender and
from the applicable Canadian Borrower, on demand, interest on such Refinancing
Advance at the Default Rate applicable thereto, calculated from the date such
Refinancing Advance was required to be made. Each Lender's obligation to make
Refinancing Advances pursuant to this Section shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, (1) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against Canadian Agent, Canadian Borrowers or anyone
else for any reason whatsoever; (2) the occurrence or continuance of an Event of
Default or Default; (3) any adverse change in the condition (financial or
otherwise) of either Canadian Borrower; (4) any breach of this Agreement
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by either Canadian Borrower, Canadian Agent or any Lender, except with respect
to the Refinancing Conditions; or (5) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided , that in
no event shall a Lender be obligated to make a Refinancing Advance pursuant to
this Section if, after giving effect thereto, the outstanding principal balance
of such Lender's Canadian Advances would exceed its Percentage Share of the
Canadian Maximum Credit Amount.
Section 1.12. Re-allocation of Tranche B Maximum Credit Amount and
Canadian Maximum Credit Amount. Borrowers shall have the right (i) to
re-allocate up to US $100,000,000 of the unused Tranche B Maximum Credit Amount
to the Canadian Maximum Credit Amount (a "Tranche B Re-allocation") by reducing
the Tranche B Maximum Credit Amount and increasing the Canadian Maximum Credit
Amount by the same amount and (ii) to reallocate up to US $100,000,000 of the
unused Canadian Maximum Credit Amount to the Tranche B Maximum Credit Amount (a
"Canadian Re-allocation") by reducing the Canadian Maximum Credit Amount and
increasing the Tranche B Maximum Credit Amount by the same amount; provided that
the Tranche B Maximum Credit Amount shall never be greater than US $625,000,000,
the Canadian Maximum Credit Amount shall never be greater than US $375,000,000;
the aggregate amount of the Tranche B Maximum Credit Amount and the Canadian
Maximum Credit Amount shall never exceed US $800,000,000. A Re-allocation may be
made only on a Business Day which occurs during the Tranche B Revolving Period
and the Canadian Revolving Period, each Re-allocation shall remain in effect for
at least 90 days and thereafter until a subsequent Re-allocation is made in
accordance with the terms set forth in the Loan Documents, and no more than four
Re-allocations may be made during any Fiscal Year.
(a) To make any Tranche B Re-allocation, US Borrower must give to US
Agent written notice (or telephonic notice promptly confirmed in writing) of
such Tranche B Reallocation. Each such notice must:
(i) specify the amount by which the Tranche B Maximum Credit
Amount will be reduced, which amount must be equal to US $25,000,000 or
any higher integral multiple of US $1,000,000, and must also be equal to
or less than the amount by which the Tranche B Maximum Credit Amount
then in effect exceeds the Tranche B Facility Usage;
(ii) specify that the Canadian Maximum Credit Amount will be
increased by the same amount;
(iii) specify the effective date of such Tranche B Re-allocation
which must be at least 90 days after the effective date of the
immediately preceding Re-allocation (whether a Tranche B Re-allocation
or a Canadian Re-allocation); and
(iv) be received by US Agent not later than 10:00 a.m., Dallas,
Texas time, on or before the 10th Business Day preceding the day on
which such Tranche B Re-allocation is to occur.
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(b) To make any Canadian Re-allocation, Borrowers must give to US Agent
written notice (or telephonic notice promptly confirmed in writing) of such
Canadian Re-allocation. Each such notice must:
(i) specify the amount by which the Canadian Maximum Credit
Amount will be reduced, which amount must be equal to US $25,000,000 or
any higher integral multiple of US $1,000,000, and must also be equal to
or less than the amount by which the Canadian Maximum Credit Amount then
in effect exceeds the Canadian Facility Usage;
(ii) specify that the Tranche B Maximum Credit Amount will be
increased by the same amount;
(iii) specify the effective date of such Canadian Re-allocation
which must be at least 90 days after the effective date of the
immediately preceding Re-allocation (whether a Tranche B Re-allocation
or a Canadian Re-allocation); and
(iv) be received by US Agent not later than 10:00 a.m., Dallas,
Texas time, on or before the 10th Business Day preceding the day on
which such Canadian Re-allocation is to occur.
Each written request or confirmation described in this section
constitutes a "Re-allocation Notice" and must be made in the form and substance
of the "Re-allocation Notice" attached hereto as Exhibit G, duly completed. Each
such telephonic request shall be deemed a representation, warranty,
acknowledgment and agreement by Borrowers as to the matters which are required
to be set out in such written confirmation. Upon receipt of any such
Re-allocation Notice, US Agent shall give Canadian Agent, each Tranche B Lender
and each Canadian Lender prompt notice of the terms thereof. Each Re-allocation
Notice shall be irrevocable and binding on Borrowers.
ARTICLE II - Bankers' Acceptances and Letters of Credit
Section 2.1. Creation of Bankers' Acceptances. Upon receipt of a
Borrowing Notice and subject to the provisions of this Agreement, each Canadian
Resident Lender shall accept, in accordance with its Percentage Share of the
requested Borrowing from time to time such Bankers' Acceptances as Canadian
Borrowers shall request provided that:
(a) Bankers' Acceptances shall be issued on a Business Day;
(b) each Bankers' Acceptance shall have a term of 30, 60, 90 or 180 days
(excluding days of grace), as selected by Canadian Borrowers in the relevant
Borrowing Notice provided that each Bankers' Acceptance shall mature on a
Business Day;
(c) the face amount of each Bankers' Acceptance shall be not less than
C$100,000 and in multiples of C$100,000 for any amounts in excess thereof; and
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(d) each Bankers' Acceptance shall be in a form acceptable to the
Canadian Resident Lenders.
Section 2.2. Terms of Acceptance by the Canadian Resident Lenders.
(a) Delivery and Payment. Subject to Sections 2.3 and 2.4 and only if a
valid appointment pursuant to Section 2.2(e) is not in place, Canadian Borrowers
shall pre-sign and deliver to each Canadian Resident Lender bankers' acceptance
drafts in sufficient quantity to meet Canadian Borrowers' requirements for
anticipated Borrowings by way of Bankers' Acceptances. The applicable Canadian
Borrower shall, at its option, provide for payment to Canadian Agent for the
benefit of Canadian Resident Lenders of each Bankers' Acceptance on the date on
which a Bankers' Acceptance matures, either by payment of the full face amount
thereof or through utilization of a Conversion to another Type of Borrowing in
accordance with this Agreement, or through a combination thereof. Each Canadian
Borrower waives presentment for payment of Bankers' Acceptances by Canadian
Resident Lenders and shall not claim from Canadian Resident Lenders any days of
grace for the payment at maturity of Bankers' Acceptances. Any amount owing by
Canadian Borrowers in respect of any Bankers' Acceptance which is not paid in
accordance with the foregoing, shall, as and from the date on which such
Bankers' Acceptance matures, be deemed to be outstanding hereunder as a Canadian
Prime Rate Loan.
(b) No Liability. Canadian Agent and Canadian Resident Lenders shall not
be liable for any damage, loss or improper use of any bankers' acceptance draft
endorsed in blank except for any loss arising by reason of Canadian Agent or a
Canadian Resident Lender failing to use the same standard of care in the custody
of such bankers' acceptance drafts as Canadian Agent or such Canadian Resident
Lender use in the custody of their own property of a similar nature.
(c) Bankers' Acceptances Purchased by Canadian Resident Lenders. Where
the applicable Canadian Borrower so elects in the Borrowing Notice or
Continuation/Conversion Notice, a Canadian Resident Lender shall purchase
Bankers' Acceptances accepted by it for an amount equal to the Discount
Proceeds.
(d) Marketing. Where the applicable Canadian Borrower so elects in the
Borrowing Notice or Continuation/Conversion Notice, it shall be responsible for,
and shall make its own arrangements with respect to, the marketing of Bankers'
Acceptances.
(e) Power of Attorney. To facilitate the procedures contemplated in this
Agreement, each Canadian Borrower appoints each Canadian Resident Lender from
time to time as the attorney-in-fact of such Canadian Borrower to execute,
endorse and deliver on behalf of such Canadian Borrower drafts or depository
bills in the form or forms prescribed by such Canadian Resident Lender for
Bankers' Acceptances denominated in Canadian Dollars. Each Bankers' Acceptance
executed and delivered by a Canadian Resident Lender on behalf of a Canadian
Borrower shall be as binding upon such Canadian Borrower as if it had been
executed and delivered by a duly authorized officer of such Canadian Borrower.
The foregoing appointment shall cease to be effective, in respect of any
Canadian Resident Lender regarding a Canadian Borrower, three Business Days
following receipt by such Canadian Resident Lender of a written
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notice from such Canadian Borrower revoking such appointment (which notice shall
be copied to the Canadian Agent); provided that any such revocation shall not
affect Bankers' Acceptances previously executed and delivered by such Canadian
Resident Lender pursuant to such appointment.
(f) Non-resident Lenders Participation in Borrowing of Bankers'
Acceptances by Making Canadian Dollar Eurodollar Loans. As part of each
Borrowing by way of Bankers' Acceptances from Canadian Resident Lenders, each
Non-resident Lender shall, with respect to its obligations to fund such
Borrowing, make a Canadian Dollar Eurodollar Loan by advancing Canadian Dollars
in the amount of its Percentage Share of such Borrowing having a Eurodollar
Interest Period that is substantially the same as the period to maturity of the
Bankers' Acceptances that are accepted in such Borrowing by Canadian Resident
Lenders in order that all Borrowings other than Competitive Bid Loans shall
remain pro rata during the term of this Agreement. Such Canadian Dollar
Eurodollar Loan shall otherwise be made on the terms set forth in Article I with
respect to such Type of Loan.
(g) Canadian Dollars Unavailable to Non-resident Lenders. In the event
that (i) either Canadian Borrower has requested a Borrowing in Canadian Prime
Rate Loans or (ii) the Loans in any Borrowing are automatically converted to
Canadian Prime Rate Loans, and a Non-resident Lender is unable to obtain
Canadian Dollars with which to fund its Percentage Share of such Borrowing, such
Non-resident Lender may, with respect to its obligations to fund such Borrowing,
make a Canadian Base Rate Loan in an amount equal to the US Dollar Exchange
Equivalent of its Percentage Share of such Borrowing.
(h) Pro-Rata Treatment of Canadian Advances .
(i) Each Canadian Advance 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 Canadian Advances outstanding hereunder
to each Lender will, to the extent possible, thereafter be pro rata in
accordance with such Lender's Percentage Share. The Canadian Agent is
authorized by each Canadian Borrower and each Lender to determine, in
its sole and unfettered discretion, the portion of each Canadian Advance
and each Type of Canadian Advance to be made available by each Lender
and the application of repayments and reductions of Canadian Advances to
give effect to the provisions of this Section, provided that no Lender
shall, as a result of any such determination, have a Percentage Share of
the Canadian Advances which is in excess of its Percentage Share of the
Canadian Maximum Credit Amount.
(ii) In the event it is not practicable to allocate Bankers'
Acceptances to each Lender such that the aggregate amount of Bankers'
Acceptances required to be purchased by such Lender hereunder is in a
whole multiple of C $100,000, the Canadian Agent is authorized by each
Canadian Borrower and each Lender to make such allocation as the
Canadian Agent determines in its sole and unfettered discretion may be
equitable in the circumstances and, if the aggregate amount of such
Bankers' Acceptances is not a whole multiple of C $100,000, then the
Canadian Agent may allocate (on a basis considered by it
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to be equitable) the excess of such Canadian Advance over the next
lowest whole multiple of C $100,000 to one Lender, which shall purchase
a Bankers' Acceptance with a face amount equal to the excess and having
the same term as the corresponding Bankers' Acceptances. In no event
shall the portion of the outstanding Borrowings by way of Bankers'
Acceptances of a Lender exceed such Lenders' Percentage Share of the
Aggregate Borrowings by way of Bankers' Acceptances by more than C
$100,000 as a result of such exercise of discretion by the Canadian
Agent.
(iii) If during the term of any Bankers' Acceptance accepted by
a Lender hereunder the Applicable Margin changes or an Event of Default
occurs and is continuing, the fee paid to such Lender by the applicable
Borrower pursuant to Section 1.5(d) (in this paragraph called the
"Initial Fee") with respect to such Bankers' Acceptance shall be
recalculated based upon such change in the Applicable Margin or the
existence of such Event of Default for the number of days during the
term of such Bankers' Acceptance that such change is applicable or such
Event of Default exists. If such recalculated amount is in excess of the
Initial Fee then such Canadian Borrower shall pay to such Lender the
amount of such excess, and if such recalculated amount is less than the
Initial Fee, then the amount of such reduction shall be credited to
other amounts payable by such Canadian Borrower to such Lender.
Section 2.3. General Procedures for Bankers' Acceptances.
(a) Notice. Canadian Borrowers may in the Borrowing Notice or in a
Continuation/Conversion Notice request a Borrowing by way of Bankers'
Acceptances and, if the Canadian Borrower is responsible for marketing of such
Bankers' Acceptances under Section 2.2(d), by subsequent notice to Canadian
Agent provide Canadian Agent, which shall in turn notify each Canadian Resident
Lender, with information as to the discount proceeds payable by the purchasers
of the Bankers' Acceptances and the party to whom delivery of the Bankers'
Acceptances by each Canadian Resident Lender is to be made against delivery to
each Canadian Resident Lender of the applicable discount proceeds, but if it
does not do so, Canadian Borrowers shall initiate a telephone call to Canadian
Agent by 10:00 a.m. Toronto, Ontario time on the date of advance, or the date of
the Continuation or Conversion, as applicable, and provide such information to
Canadian Agent. Such discount proceeds less the fee calculated in accordance
with Section 1.5(d) shall promptly be delivered to the Canadian Agent. Any such
telephone advice shall be subject to Section 1.2 and shall be confirmed by a
written notice of Canadian Borrowers to Canadian Agent prior to 2:00 p.m.
Toronto, Ontario time on the same day.
(b) Continuations. In the case of a Continuation of maturing Bankers'
Acceptances, issued by a Canadian Resident Lender, such Canadian Resident
Lender, in order to satisfy the continuing liability of Canadian Borrowers to
the Canadian Resident Lender for the face amount of the maturing Bankers'
Acceptances, shall retain for its own account the Net Proceeds of each new
Bankers' Acceptance issued by it in connection with such Continuation; and
Canadian Borrowers shall, on the maturity date of the maturing Bankers'
Acceptances, pay to Canadian Agent for the benefit of Canadian Resident Lenders
an amount equal to the difference between the
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face amount of the maturing Bankers' Acceptances and the aggregate Net Proceeds
of the new Bankers' Acceptances.
(c) Conversion from Canadian Prime Rate Loans and Canadian Dollar
Eurodollar Loans. In the case of a Conversion from a Borrowing of Canadian Prime
Rate Loans or Canadian Dollar Eurodollar Loans into a Borrowing by way of
Bankers' Acceptances to be accepted by a Canadian Resident Lender pursuant to
Sections 2.1, 2.2 and 2.3, such Canadian Resident Lender, in order to satisfy
the continuing liability of Canadian Borrowers to it for the principal amount of
the Canadian Prime Rate Loans or Canadian Dollar Eurodollar Loans being
converted, shall retain for its own account the Discount Proceeds of each new
Bankers' Acceptance issued by it in connection with such Conversion; and
Canadian Borrowers shall, on the date of issuance of the Bankers' Acceptances,
pay to Canadian Agent for the benefit of Canadian Resident Lenders an amount
equal to the difference between the aggregate principal amount of the Canadian
Prime Rate Loans or Canadian Dollar Eurodollar Loans being converted owing to
the Canadian Resident Lenders and the aggregate Discount Proceeds of such
Bankers' Acceptances.
(d) Conversions to Canadian Loans in Canadian Dollars. In the case of a
Conversion of a Borrowing by way of Bankers' Acceptances into Canadian Loans,
each Canadian Resident Lender, in order to satisfy the liability of the
applicable Canadian Borrower to it for the face amount of the maturing Bankers'
Acceptances, shall record the obligation of the applicable Canadian Borrower to
it as a Canadian Prime Rate Loan, unless the applicable Canadian Borrower
provide for payment to Canadian Agent for the benefit of Canadian Resident
Lenders of the face amount of the maturing Bankers' Acceptance in some other
manner acceptable to Canadian Resident Lenders, including Conversion to another
Type of Canadian Loan pursuant to a Continuation/Conversion Notice.
(e) Conversion from or to Canadian Loans in U.S. Dollars. In the case of
a conversion of Bankers' Acceptances from or to a Canadian Base Rate Loans or US
Dollar Eurodollar Loans, the parties to which this Section applies shall follow
the notice procedures set out in Section 1.3 and the funding procedures set out
in Section 2.3 (c) and (d) without netting of funds.
(f) Authorization. Canadian Borrowers hereby authorize each Canadian
Resident Lender to complete, stamp, hold, sell, rediscount or otherwise dispose
of all Bankers' Acceptances accepted by it pursuant to this Section in
accordance with the instructions provided by Canadian Borrowers pursuant to
Section 1.3, as applicable.
(g) Depository Notes. The parties agree that in the administering of
Bankers' Acceptances, each Lender may avail itself of the debt clearing services
offered by a clearing house for depository notes pursuant to the Depository
Bills and Notes Act (Canada) and that the procedures set forth in Article II be
deemed amended to the extent necessary to comply with the requirements of such
debt clearing services.
Section 2.4. Execution of Bankers' Acceptances. The signatures of any
authorized signatory on Bankers' Acceptances may, at the option of Canadian
Borrowers, be reproduced in
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facsimile and such Bankers' Acceptances bearing such facsimile signatures shall
be binding on Canadian Borrowers as if they had been manually signed by such
authorized signatory. Notwithstanding that any person whose signature appears on
any Bankers' Acceptance as a signatory may no longer be an authorized signatory
of Canadian Borrowers at the date of issuance of a Bankers' Acceptance, and
notwithstanding that the signature affixed may be a reproduction only, such
signature shall nevertheless be valid and sufficient for all purposes as if such
authority had remained in force at the time of such issuance and as if such
signature had been manually applied, and any such Bankers' Acceptance so signed
shall be binding on Canadian Borrowers.
Section 2.5. Escrowed Funds. Upon the occurrence of an Event of Default
and an acceleration of the Canadian Obligations under Section 8.1 or upon a
prepayment permitted under Section 1.4, Canadian Borrowers shall forthwith pay
to Canadian Agent for deposit into an escrow account maintained by and in the
name of Canadian Agent for the benefit of Canadian Resident Lenders in
accordance with their Percentage Shares an amount equal to the Canadian Resident
Lenders' maximum potential liability (as determined by Canadian Agent) under
then outstanding Bankers' Acceptances (the "Escrow Funds"). The Escrow Funds
shall be held by Canadian Agent for set-off against future Canadian Obligations
of Canadian Borrowers and pending such application shall bear interest at the
rate declared by Canadian Agent from time to time as that payable by it in
respect of deposits for such amount and for such period relative to the maturity
date of the Bankers' Acceptances, as applicable. If such Event of Default is
either waived or cured in compliance with the terms of this Agreement, then the
Escrow Funds, together with any accrued interest to the date of release, shall
be forthwith released to Canadian Borrowers.
Section 2.6. Letters of Credit. Subject to the terms and conditions
hereof, any Canadian Borrower may during the Canadian Revolving Period request
Canadian LC Issuer to issue one or more Letters of Credit denominated in either
Canadian Dollars or US Dollars, provided that, after taking such Letter of
Credit into account:
(a) the Canadian Facility Usage does not exceed the Canadian Maximum
Credit Amount at such time;
(b) the aggregate amount of Canadian LC Obligations arising from Letters
of Credit issued under this Agreement at such time does not exceed the Canadian
LC Sublimit;
(c) the expiration date of such Letter of Credit is prior to the end of
the Canadian Revolving Period;
(d) such Letter of Credit is to be used for general corporate purposes
of such Canadian Borrower;
(e) such Letter of Credit is not directly or indirectly used to assure
payment of or otherwise support any Indebtedness of any Person other than
Indebtedness of any Restricted Person permitted by this Agreement;
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(f) the issuance of such Letter of Credit will be in compliance with all
applicable governmental restrictions, policies, and guidelines and will not
subject Canadian LC Issuer to any cost which is not reimbursable under Article
III;
(g) the form and terms of such Letter of Credit are acceptable to
Canadian LC Issuer in its reasonable discretion; and
(h) all other conditions in this Agreement to the issuance of such
Letter of Credit have been satisfied.
Subject to the terms and conditions set forth herein, Canadian LC Issuer
will, in reliance upon the agreements of the other Lenders set forth in Section
2.8(a), honor any such request if the foregoing conditions (a) through (h) (in
this Section 2.6 called the "LC Conditions ") have been met as of the date of
issuance of such Letter of Credit. Canadian LC Issuer may choose to honor any
such request for any other Letter of Credit but has no obligation to do so and
may refuse to issue any other requested Letter of Credit for any reason which
Canadian LC Issuer in its sole discretion deems relevant.
Section 2.7. Requesting Letters of Credit . The applicable Canadian
Borrower must make written application for any Letter of Credit at least three
Business Days before the date on which the applicable Canadian Borrower desires
for Canadian LC Issuer to issue such Letter of Credit. By making any such
written application the applicable Canadian Borrower shall be deemed to have
represented and warranted that the LC Conditions described in Section 2.6 will
be met as of the date of issuance of such Letter of Credit. Each such written
application for a Letter of Credit must be made in writing on Canadian LC
Issuer's standard form of Letter of Credit Application, the terms and provisions
of which are hereby incorporated herein by reference (or in such other form as
may mutually be agreed upon by Canadian LC Issuer and the applicable Canadian
Borrower). Three Business Days after the LC Conditions for a Letter of Credit
have been met as described in Section 2.6 (or if Canadian LC Issuer otherwise
desires to issue such Letter of Credit), Canadian LC Issuer will issue such
Letter of Credit at Canadian LC Issuer's office in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. If any
provisions of any LC Application conflict with any provisions of this Agreement,
the provisions of this Agreement shall govern and control.
Section 2.8. Reimbursement and Participations .
(a) Reimbursement by Canadian Borrowers. Each Matured Canadian LC
Obligation arising from a Letter of Credit issued under the Canadian Agreement
shall constitute Canadian Prime Rate Loans made by Canadian LC Issuer to the
applicable Canadian Borrower even if any condition precedent to the making of
such a Loan shall not have been satisfied. Each Lender shall (in all
circumstances and without set-off or counterclaim) purchase from Canadian LC
Issuer its Percentage Share of such Canadian Prime Rate Loans and pay to
Canadian LC Issuer on demand on the date on which such Matured LC Obligation
arises, in immediately available funds at Canadian LC Issuer's address for
notices hereunder, such Lender's Percentage Share of such Matured Canadian LC
Obligation. Each Lender's obligation to pay Canadian LC Issuer pursuant to the
terms of this subsection is irrevocable and unconditional. If any amount
required to be paid
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by any Lender to Canadian LC Issuer pursuant to this subsection is paid by such
Lender to Canadian LC Issuer within three Business Days after the date such
payment is due, Canadian LC Issuer shall in addition to such amount be entitled
to recover from such Lender, on demand, interest thereon calculated from such
due date at the Canadian Prime Rate. If any amount required to be paid by any
Lender to Canadian LC Issuer pursuant to this subsection is not paid by such
Lender to Canadian LC Issuer within three Business Days after the date such
payment is due, Canadian LC Issuer shall in addition to such amount be entitled
to recover from such Lender, on demand, interest thereon calculated from such
due date at the Default Rate.
(b) Calculations. A written advice setting forth in reasonable detail
the amounts owing under this section, submitted by Canadian LC Issuer to
Canadian Borrowers or any Lender from time to time, shall be conclusive, absent
manifest error, as to the amounts thereof.
Section 2.9. Letter of Credit Fees. In consideration of Canadian LC
Issuer's issuance of any Letter of Credit, the applicable Canadian Borrower
agrees to pay (a) to Canadian LC Issuer for its own account, a letter of credit
fronting fee at a rate equal to 12.5 Basis Points per annum multiplied by the
face amount of such Letter of Credit, payable on the date of issuance, and (b)
to Canadian Agent, for the account of all Lenders in accordance with their
respective Percentage Shares, a letter of credit issuance fee calculated by
applying the Applicable Margin to the face amount of all Letters of Credit
outstanding on each day, payable in arrears on the last day of each Fiscal
Quarter. In addition, the applicable Canadian Borrower will pay to LC Issuer its
standard drawing and other processing fees upon any drawing under a Letter of
Credit.
Section 2.10. No Duty to Inquire.
(a) Drafts and Demands. Canadian LC Issuer is authorized and instructed
to accept and pay drafts and demands for payment under any Letter of Credit
without requiring, and without responsibility for, any determination as to the
existence of any event giving rise to said draft, either at the time of
acceptance or payment or thereafter. Canadian LC Issuer is under no duty to
determine the proper identity of anyone presenting such a draft or making such a
demand (whether by tested telex or otherwise) as the officer, representative or
agent of any beneficiary under any Letter of Credit, and payment by Canadian LC
Issuer to any such beneficiary when requested by any such purported officer,
representative or agent is hereby authorized and approved. Canadian Borrowers
release each Lender Party from, and agree to hold each Lender Party harmless and
indemnified against, any liability or claim in connection with or arising out of
the subject matter of this section, WHICH INDEMNITY SHALL APPLY WHETHER OR NOT
ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT CAUSED, IN WHOLE OR
IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY LENDER PARTY,
provided only that no Lender Party shall be entitled to indemnification for that
portion, if any, of any liability or claim which is proximately caused by its
own individual gross negligence or willful misconduct, as determined in a final
judgment.
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(b) Extension of Maturity. If the maturity of any Letter of Credit is
extended by its terms or by Law or governmental action, if any extension of the
maturity or time for presentation of drafts or any other modification of the
terms of any Letter of Credit is made at the request of any Restricted Person,
or if the amount of any Letter of Credit is increased at the request of any
Restricted Person, this Agreement shall be binding upon all Restricted Persons
with respect to such Letter of Credit as so extended, increased or otherwise
modified, with respect to drafts and property covered thereby, and with respect
to any action taken by Canadian LC Issuer, Canadian LC Issuer's correspondents,
or any Lender Party in accordance with such extension, increase or other
modification.
(c) Transferees of Letters of Credit. If any Letter of Credit provides
that it is transferable, Canadian LC Issuer shall have no duty to determine the
proper identity of anyone appearing as transferee of such Letter of Credit, nor
shall Canadian LC Issuer be charged with responsibility of any nature or
character for the validity or correctness of any transfer or successive
transfers, and payment by Canadian LC Issuer to any purported transferee or
transferees as determined by Canadian LC Issuer is hereby authorized and
approved, and Canadian Borrowers release each Lender Party from, and agree to
hold each Lender Party harmless and indemnified against, any liability or claim
in connection with or arising out of the foregoing, WHICH INDEMNITY SHALL APPLY
WHETHER OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT
CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY ANY
LENDER PARTY, provided only that no Lender Party shall be entitled to
indemnification for that portion, if any, of any liability or claim which is
proximately caused by its own individual gross negligence or willful misconduct,
as determined in a final judgment.
Section 2.11. LC Collateral.
(a) Canadian LC Obligations in Excess of Canadian Maximum Credit Amount.
If, after the making of all mandatory prepayments required under Section 1.4(c),
the outstanding Canadian LC Obligations will exceed Canadian Maximum Credit
Amount, then in addition to prepayment of the entire principal balance of the
Canadian Loans, Canadian Borrowers will immediately pay to Canadian LC Issuer an
amount equal to such excess. Canadian LC Issuer will hold such amount to apply
against the remaining Canadian LC Obligations outstanding under the Canadian
Agreement (all such amounts held for Canadian LC Obligations being herein
collectively called "LC Collateral ") and the other Canadian Obligations, and
such collateral may be applied from time to time to any Matured Canadian LC
Obligations or other Canadian Obligations which are due and payable. Neither
this subsection nor the following subsection shall, however, limit or impair any
rights which Canadian LC Issuer may have under any other document or agreement
relating to any Letter of Credit, LC Collateral or Canadian LC Obligation,
including any LC Application, or any rights which any Lender Party may have to
otherwise apply any payments by Canadian Borrowers and any LC Collateral under
Section 3.1.
(b) Acceleration of Canadian LC Obligations. If the Canadian Obligations
or any part thereof become immediately due and payable pursuant to Section 8.1
then, unless Canadian
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Required Lenders otherwise specifically elect to the contrary (which election
may thereafter be retracted by Canadian Required Lenders at any time), all
Canadian LC Obligations shall become immediately due and payable without regard
to whether or not actual drawings or payments on the Letters of Credit have
occurred, and the applicable Canadian Borrower in respect of such Canadian LC
Obligations shall be obligated to pay to Canadian LC Issuer immediately an
amount equal to the aggregate Canadian LC Obligations which are then
outstanding.
(c) Investment of LC Collateral. Pending application thereof, all LC
Collateral shall be invested by Canadian LC Issuer in such Investments as
Canadian LC Issuer may choose in its sole discretion. All interest on (and other
proceeds of) such Investments shall be reinvested or applied to Matured Canadian
LC Obligations or other Canadian Obligations which are due and payable. When all
Canadian Obligations have been satisfied in full, including all Canadian LC
Obligations, all Letters of Credit have expired or been terminated, and all of
Canadian Borrowers's reimbursement obligations in connection therewith have been
satisfied in full, Canadian LC Issuer shall release any remaining LC Collateral.
Canadian Borrowers hereby assign and grant to Canadian LC Issuer a continuing
security interest in all LC Collateral paid by it to Canadian LC Issuer, all
Investments purchased with such LC Collateral, and all proceeds thereof to
secure its Matured Canadian LC Obligations and the other Canadian Obligations
hereunder, each Canadian Note, and the other US Loan Documents. Canadian
Borrowers further agree that Canadian LC Issuer shall have all of the rights and
remedies of a secured party under the Personal Property Security Act (Alberta)
with respect to such security interest and that an Event of Default under this
Agreement shall constitute a default for purposes of such security interest.
When Canadian Borrowers are required to provide LC Collateral for any reason and
fail to do so on the day when required, Canadian LC Issuer may without notice to
Canadian Borrowers or any other Restricted Person provide such LC Collateral
(whether by transfers from other accounts maintained with Canadian LC Issuer, or
otherwise) using any available funds of Canadian Borrowers or any other Person
also liable to make such payments.
ARTICLE III - Payments to Lenders
Section 3.1. General Procedures. Each Canadian Borrower will make each
payment which it owes under the Canadian Loan Documents to Canadian Agent in
Toronto, Canada, if such payment is being made in Canadian Dollars, or to the US
Account, if such payment is being made in US Dollars, in each case for the
account of the Lender Party to whom such payment is owed, without set-off,
deduction or counterclaim, and in immediately available funds, provided that any
such payment may be made net of any deduction or withholding for or on account
of any withholding tax which such Canadian Borrower is required at Law to
withhold or deduct except as otherwise provided in Section 3.2(d). Each such
payment must be received by Canadian Agent not later than 11:00 a.m., Toronto,
Ontario time, on the date such payment becomes due and payable. Any payment
received by Canadian Agent after such time will be deemed to have been made on
the next following Business Day. Should any such payment become due and payable
on a day other than a Business Day, the maturity of such payment shall be
extended to the next succeeding Business Day, and, in the case of a payment of
principal or past due interest, interest shall accrue and be payable thereon for
the period of such extension as provided in the Canadian
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Loan Document under which such payment is due. Each payment under a Canadian
Loan Document shall be due and payable at the place provided therein and, if no
specific place of payment is provided, shall be due and payable at the place of
payment of Canadian Agent's Canadian Note. When Canadian Agent collects or
receives money on account of the Canadian Obligations, Canadian Agent shall
distribute all money so collected or received by 2:00 p.m. Toronto, Ontario time
on the Business Day received, if received by 11:00 a.m. Toronto, Ontario time,
otherwise on the day of deemed receipt, and each Lender Party shall apply all
such money so distributed, as follows:
(a) first, for the payment of all Canadian Obligations which are then
due (and if such money is insufficient to pay all such Canadian Obligations,
first to any reimbursements due Canadian Agent under Section 6.9 or 10.4, then
to any reimbursement due any other Lender Party under Section 10.4, and then to
the partial payment of all other Canadian Obligations then due in proportion to
the amounts thereof, or as Lender Parties shall otherwise agree);
(b) then for the prepayment of amounts owing under the Canadian Loan
Documents (other than principal on the Canadian Notes) if so specified by
Canadian Borrowers;
(c) then for the prepayment of principal on the Canadian Notes that are
not Competitive Bid Notes, together with accrued and unpaid interest on the
principal so prepaid; and
(d) last, for the payment or prepayment of any other Canadian
Obligations.
All payments applied to principal or interest on any Canadian Note shall
be applied first to any interest then due and payable, then to principal then
due and payable, and last to any prepayment of principal and interest in
compliance with Sections 1.4 and 2.8. All distributions of amounts described in
any of subsections (b), (c) or (d) above shall be made by Canadian Agent pro
rata to each Lender Party then owed Canadian Obligations described in such
subsection in proportion to all amounts owed to all Lender Parties which are
described in such subsection; provided that if any Lender then owes payments to
Canadian LC Issuer for the purchase of a participation under Section 2.8(a) or
to Canadian Agent under Section 9.8, any amounts otherwise distributable under
this section to such Lender shall be deemed to belong to Canadian LC Issuer, or
Canadian Agent, respectively, to the extent of such unpaid payments, and
Canadian Agent shall apply such amounts to make such unpaid payments rather than
distribute such amounts to such Lender.
Section 3 .2. Change in Law; Gross Up; Increased Cost and Reduced Return
.
(a) If, after the date hereof, the adoption of any applicable Law, rule,
or regulation, or any change in any applicable Law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender Party (or its Applicable
Lending Office) with any request or directive (whether or not having the force
of Law) of any such Governmental Authority, central bank, or comparable agency
(the occurrence of any of the foregoing events being herein referred to as a
"Change in Law"):
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(i) shall subject such Lender Party (or its Applicable Lending
Office) to any tax, duty, deduction or any other charge (other than with
respect to Withholding Tax as defined in Section 3.2(d)) with respect to
any Eurodollar Loans, Bankers' Acceptances or Competitive Bid Loans, or
its obligation to make Eurodollar Loans, accept Bankers' Acceptances or
issue Letters of Credit, or change the basis of taxation of any amounts
payable to such Lender Party (or its Applicable Lending Office) under
this Agreement or its Canadian Note in respect of any Eurodollar Loans,
Bankers' Acceptances or Competitive Bid Loans other than taxes
(including franchise taxes) imposed on the overall net income or capital
of such Lender Party by the jurisdiction under the Laws of which such
Lender Party (or its Applicable Lending Office) is organized or is a
resident for tax purposes or any political subdivision thereof;
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted US
Dollar Eurodollar Rate and Adjusted Canadian Dollar Eurodollar Rate)
relating to any extensions of credit or other assets of, or any deposits
with or other liabilities or commitments of, such Lender Party (or its
Applicable Lending Office), including the commitment of such Lender
Party hereunder; or
(iii) shall impose on such Lender Party (or its Applicable
Lending Office) or the London interbank market any other condition
affecting this Agreement or its Canadian Notes or any of such extensions
of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender
Party (or its Applicable Lending Office) of making, converting into, continuing,
or maintaining any Eurodollar Loans, Bankers' Acceptances or Competitive Bid
Loans or to reduce any sum received or receivable by such Lender Party (or its
Applicable Lending Office) under this Agreement or its Canadian Notes with
respect to any Eurodollar Loans, Bankers' Acceptances or Competitive Bid Loans,
then the applicable Canadian Borrower shall pay to such Lender Party on demand
such amount or amounts as will compensate such Lender Party for such increased
cost or reduction. If any Lender Party requests compensation by Canadian
Borrowers under this Section 3.2(a), Canadian Borrowers may, by notice to such
Lender Party (with a copy to Canadian Agent), suspend the obligation of such
Lender Party to make or continue Canadian Advances of the Type with respect to
which such compensation is requested, or to convert Canadian Advances of any
other Type into Canadian Advances of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the provisions
of Section 3.5 shall be applicable); provided that such suspension shall not
affect the right of such Lender Party to receive the compensation so requested.
(b) If, after the date hereof, Canadian LC Issuer or any Lender Party
shall have determined that the adoption of any applicable Law, rule, or
regulation regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of Law) of any such Governmental Authority, central bank, or
comparable agency, has or would
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have the effect of reducing the rate of return on the capital of such Lender
Party or any corporation controlling such Lender Party as a consequence of the
obligations of such Lender Party hereunder to a level below that which such
Lender Party or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time upon demand the applicable
Canadian Borrower shall pay to such Lender Party such additional amount or
amounts as will compensate such Lender Party for such reduction, but only to the
extent that such Lender Party has not been compensated therefor by any increase
in the Adjusted US Dollar Eurodollar Rate or the Adjusted Canadian Dollar
Eurodollar Rate; provided that if such Lender Party fails to give notice to
Canadian Borrowers of any additional costs within ninety (90) days after it has
actual knowledge thereof, such Lender Party shall not be entitled to
compensation for such additional costs incurred more than ninety (90) days prior
to the date on which notice is given by such Lender Party.
(c) Each Lender Party shall promptly notify Canadian Borrowers and
Canadian Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender Party to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender Party, be otherwise disadvantageous
to it. Any Lender Party claiming compensation under this Section shall furnish
to Canadian Borrowers and Canadian Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender Party shall act in good faith and may use any reasonable averaging and
attribution methods.
(d) If by reason of a Change in Law, Canadian Borrowers shall be
required to withhold and remit withholding taxes in respect of any principal,
interest, or other amount paid or payable by it to or for the account of any
Lender Party hereunder or under any other Canadian Loan Document (a "Withholding
Tax"), (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 3.2) such Lender Party receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
applicable Canadian Borrower shall make such deductions, and (iii) the
applicable Canadian Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable Law.
(e) Except as provided in paragraph (d) of this Section 3.2, no Canadian
Borrower shall be required to compensate any Lender Party for any Withholding
Taxes which such Canadian Borrower is required to withhold and remit in respect
of any principal, interest, or other amount paid or payable by it to or for the
account of any Lender Party hereunder or under any other Canadian Loan Document.
Section 3.3. Limitation on Types of Canadian Loans . If on or prior to
the first day of any Eurodollar Interest Period for any Eurodollar Loan:
(a) Canadian Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not
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exist for ascertaining the US Dollar Eurodollar Rate or the Canadian Dollar
Eurodollar Rate, as applicable, for such Eurodollar Interest Period; or
(b) the Canadian Required Lenders determine (which determination shall
be conclusive) and notify Canadian Agent that the Adjusted US Dollar Eurodollar
Rate or the Adjusted Canadian Dollar Eurodollar Rate, as applicable, will not
adequately and fairly reflect the cost to the Lenders of funding Eurodollar
Loans or for such Eurodollar Interest Period;
then Canadian Agent shall give Canadian Borrowers prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, the Lender Parties shall be under no obligation to make
additional Canadian Loans, continue Eurodollar Loans or convert Canadian Base
Rate Loans or Canadian Dollar Prime Rate Loans into Eurodollar Loans, and
Canadian Borrowers shall, on the last day(s) of the then current Eurodollar
Interest Period(s) for the outstanding Eurodollar Loans, either prepay such
Canadian Loans or convert such Canadian Loans into Canadian Base Rate Loans,
Canadian Prime Rate Loans, or Bankers' Acceptances in accordance with the terms
of this Agreement.
Section 3.4. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender Party or its
Applicable Lending Office to make, maintain, or fund Eurodollar Loans hereunder,
then such Lender Party shall promptly notify Canadian Borrowers thereof and such
Lender Party's obligation to make or continue Eurodollar Loans and to convert
BA's, Canadian Base Rate Loans, Canadian Prime Rate Loans, or Bankers'
Acceptances into Eurodollar Loans shall be suspended until such time as such
Lender Party may again make, maintain, and fund Eurodollar Loans (in which case
the provisions of Section 3.5 shall be applicable).
Section 3.5. Treatment of Affected Loans. If the obligation of any
Lender Party to make a particular Type of Loan or to continue, or to convert
Canadian Loans of any other Type into, Canadian Loans of a particular Type shall
be suspended pursuant to Sections 3.2 and 3.4 hereof (Canadian Loans of such
Type being herein called "Affected Loans " and such Type being herein called the
"Affected Type"), such Lender Party's Affected Loans shall be automatically
converted into Canadian Base Rate Loans with respect to US $ Loans or to
Canadian Prime Rate Loans with respect to C $ Loans on the last day(s) of the
then current Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 3.4 hereof, on such earlier date as such Lender
Party may specify to Canadian Borrowers with a copy to Canadian Agent) and,
unless and until such Lender Party gives notice as provided below that the
circumstances specified in Sections 3.2 or 3.4 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender Party's Affected Loans have been so
converted, all payments and prepayments of principal that would otherwise be
applied to such Lender Party's Affected Loans shall be applied instead to its
Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable; and
(b) all Canadian Loans that would otherwise be made or continued by such
Lender Party as Canadian Loans of the Affected Type shall be made or continued
instead as Canadian
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Base Rate Loans or Canadian Prime Rate Loans, as applicable, and all Canadian
Loans of such Lender Party that would otherwise be converted into Canadian Loans
of the Affected Type shall be converted instead into (or shall remain as)
Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable.
If such Lender Party gives notice to Canadian Borrowers (with a copy to
Canadian Agent) that the circumstances specified in Section 3.2 or 3.4 hereof
that gave rise to the Conversion of such Lender Party's Affected Loans pursuant
to this Section no longer exist (which such Lender Party agrees to do promptly
upon such circumstances ceasing to exist) at a time when Canadian Loans of the
Affected Type made by other Lender Parties are outstanding, such Lender Party's
Canadian Base Rate Loans or Canadian Prime Rate Loans, as applicable, shall be
automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Canadian Loans of the Affected Type, to the
extent necessary so that, after giving effect thereto, all Canadian Loans held
by the Lender Parties holding Canadian Loans of the Affected Type and by such
Lender Party are held pro rata (as to principal amounts, Types, and Interest
Periods) in accordance with their Percentage Shares of the Canadian Maximum
Credit Amount.
Section 3.6. Compensation. Upon the request of any Lender Party,
Canadian Borrowers shall pay to such Lender Party such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender Party) to
compensate it for any loss, cost, or expense (including loss of anticipated
profits) incurred by it as a result of:
(i) any payment, prepayment, or Conversion of a Canadian Loan
(other than a Canadian Base Rate Loan or a Canadian Prime Rate Loan) for
any reason, whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise, on a date other than the last day of the
Interest Period for such Loan; or
(ii) any failure by Canadian Borrowers for any reason
(including, without limitation, the failure of any condition precedent
specified in Article IV to be satisfied) to borrow, convert, continue,
or prepay a Canadian Loan (other than a Canadian Base Rate Loan or a
Canadian Prime Rate Loan) on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this Agreement.
Section 3.7. Change of Applicable Lending Office. Each Lender Party
agrees that, upon the occurrence of any event giving rise to the operation of
Sections 3.2 through 3.5 with respect to such Lender Party, it will, if
requested by Canadian Borrowers, use reasonable efforts (subject to overall
policy considerations of such Lender Party) to designate another Applicable
Lending Office, provided that such designation is made on such terms that such
Lender Party and its Applicable Lending Office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such section. Nothing in this section
shall affect or postpone any of the obligations of Canadian Borrowers or the
rights of any Lender Party provided in Sections 3.2 through 3.5.
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Section 3.8. Replacement of Lenders. If any Lender Party seeks
reimbursement for increased costs under Sections 3.2 through 3.5, or if a
Canadian Borrower is required to increase any sum payable under Section 3.2(d),
then within ninety (90) days thereafter -- provided no Event of Default then
exists -- Canadian Borrowers shall have the right (unless such Lender Party
withdraws its request for additional compensation) to replace such Lender Party
by requiring such Lender Party to assign its Canadian Advances, Canadian Notes,
Canadian LC Obligations, US Loans, US Notes, US LC Obligations and its
commitments hereunder and under the US Agreement to an Eligible Transferee
reasonably acceptable to all Borrowers, provided that: all Obligations of
Borrowers owing to such Lender Party being replaced (including such increased
costs, but excluding principal and accrued interest on the Canadian Notes and
the US Notes being assigned) shall be paid in full to such Lender Party
concurrently with such assignment, and the replacement Eligible Transferee shall
purchase the foregoing by paying to such Lender Party a price equal to the
principal amount thereof plus accrued and unpaid interest thereon. In connection
with any such assignment Canadian Borrowers, Canadian Agent, US Borrower, US
Agent, such Lender Party and the replacement Eligible Transferee shall otherwise
comply with Section 10.6. Notwithstanding the foregoing rights of Canadian
Borrowers under this section, however, Canadian Borrowers may not replace any
Lender Party which seeks reimbursement for increased costs under Section 3.2
through 3.5, or to which Canadian Borrowers are required to increase any sums
payable under Section 3.2(d), unless Canadian Borrowers are at the same time
replacing all Lender Parties which are then seeking such compensation or to
which such sums payable must be increased. In connection with any such
replacement of a Lender Party, the applicable Canadian Borrower shall pay all
costs that would have been due to such Lender Party pursuant to Section 3.6 if
such Lender Party's Canadian Advances had been prepaid at the time of such
replacement.
Section 3.9. Other Taxes.
(a) Canadian Borrowers agree to pay any and all present or future stamp
or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Agreement or any
other Canadian Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Canadian Loan Document (hereinafter
referred to as "Other Taxes").
(b) Canadian Borrowers agree to indemnify each Lender Party for the full
amount of Other Taxes (including, without limitation, any Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this section) paid by such
Lender Party or Canadian Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect thereto.
(c) If Canadian Borrowers are required to pay additional amounts to or
for the account of any Lender Party pursuant to this Section 3.9, then such
Lender Party will agree to use reasonable efforts to change the jurisdiction of
its Applicable Lending Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the judgment of such
Lender Party, is not otherwise disadvantageous to such Lender Party.
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(d) If a Lender Party is reimbursed for an amount paid by Canadian
Borrowers pursuant to this Section 3.9, it shall promptly return such amount to
Canadian Borrowers.
(e) Within thirty (30) days after the date of any payment of Other
Taxes, Canadian Borrowers shall furnish to Canadian Agent the original or a
certified copy of a receipt evidencing such payment.
(f) Without prejudice to the survival of any other agreement of Canadian
Borrowers hereunder, the agreements and obligations of Canadian Borrowers
contained in this section shall survive the termination of this Agreement and
the payment in full of the Canadian Notes.
Section 3.10. Currency Conversion and Currency Indemnity.
(a) Canadian Borrowers and Canadian Guarantor (collectively, for
purposes of this Section 3.10 herein referred to as "Obligors") shall make
payment relative to any Obligation in the currency (the "Agreed Currency") in
which the Obligation was incurred. If any payment is received on account of any
Obligation in any currency (the "Other Currency") other than the Agreed Currency
(whether voluntarily, pursuant to any Conversion of a Canadian Advance or
pursuant to an order or judgment or the enforcement thereof or the realization
of any security or the liquidation of such Obligor or otherwise howsoever), such
payment shall constitute a discharge of the liability of an Obligor hereunder
and under the other Canadian Loan Documents in respect of such Obligation only
to the extent of the amount of the Agreed Currency which the relevant Lender
Parties are able to purchase with the amount of the Other Currency received by
it on the Business Day next following such receipt in accordance with its normal
procedures and after deducting any premium and costs of exchange.
(b) If, for the purpose of obtaining or enforcing judgment in any court
in any jurisdiction, it becomes necessary to convert into a particular currency
(the "Judgment Currency") any amount due in the Agreed Currency then the
conversion shall be made on the basis of the rate of exchange prevailing on the
next Business Day following the date such judgment is given and in any event
each Obligor shall be obligated to pay the Lender Parties any deficiency in
accordance with Section 3.10(c). For the foregoing purposes "rate of exchange"
means the rate at which the relevant Lender Parties, as applicable, in
accordance with their normal banking procedures are able on the relevant date to
purchase the Agreed Currency with the Judgment Currency after deducting any
premium and costs of exchange.
(c) If any Lender Party receives any payment or payments on account of
the liability of an Obligor hereunder pursuant to any judgment or order in any
Other Currency, and the amount of the Agreed Currency which the relevant Lender
Party is able to purchase on the Business Day next following such receipt with
the proceeds of such payment or payments in accordance with its normal
procedures and after deducting any premiums and costs of exchange is less than
the amount of the Agreed Currency due in respect of such Obligations immediately
prior to such judgment or order, then Canadian Borrowers on demand shall, and
Canadian Borrowers hereby agree to, indemnify and save such Lender Party
harmless from and against any loss, cost or expense arising out of or in
connection with such deficiency. The agreement of indemnity
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provided for in this Section 3.10(c) shall constitute an obligation separate and
independent from all other obligations contained in this Agreement, shall give
rise to a separate and independent cause of action, shall apply irrespective of
any indulgence granted by the Lender Parties or any of them from time to time,
and shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum in respect of an amount due hereunder or under any
judgment or order.
ARTICLE IV - Conditions Precedent to Advances
Section 4.1. Documents to be Delivered. No Lender has any obligation to
make its first Canadian Loan, and Canadian LC Issuer has no obligation to issue
the first Letter of Credit, unless Canadian Agent shall have received all of the
following, duly executed and delivered and in form, substance and date
satisfactory to Canadian Agent:
(a) This Agreement and any other documents that Lenders are to execute
in connection herewith.
(b) Each Canadian Note.
(c) The Guaranty of Canadian Guarantor.
(d) Certain certificates of Canadian Borrowers including:
(i) An "Omnibus Certificate" of the Secretary or Assistant
Secretary and of the Chairman of the Board, President, or Vice President
- Finance of each Canadian Borrower, which shall contain the names and
signatures of the officers of such Canadian Borrower authorized to
execute Canadian Loan Documents and which shall certify to the truth,
correctness and completeness of the following exhibits attached thereto:
(1) a copy of resolutions duly adopted by the Board of Directors of such
Canadian Borrower and in full force and effect at the time this
Agreement is entered into, authorizing the execution of this Agreement
and the other Canadian Loan Documents delivered or to be delivered in
connection herewith and the consummation of the transactions
contemplated herein and therein, (2) a copy of the charter documents of
such Canadian Borrower and all amendments thereto, certified by the
appropriate official of its jurisdiction of organization, and (3) a copy
of any bylaws of such Canadian Borrower; and
(ii) A "Compliance Certificate" of the Chairman of the Board or
President and of the Vice President - Finance of each Canadian Borrower,
of even date with such Canadian Loan or such Letter of Credit, in which
such officers certify to the satisfaction of the conditions set out in
subsections (a), (b) and (c) of Section 4.3.
(e) certificate (or certificates) of the due formation, valid existence
and good standing of each Canadian Borrower in its jurisdiction of organization,
issued by the appropriate official of such jurisdiction.
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(f) A favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for Restricted
Persons, substantially in the form set forth in Exhibit E and a favorable
opinion of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP covering the matters requested by
Canadian Agent.
(g) The Initial Financial Statements.
Section 4.2. Additional Conditions Precedent to First Canadian Loan or
First Letter of Credit. No Lender has any obligation to make its first Canadian
Loan, and Canadian LC Issuer has no obligation to issue the first Letter of
Credit, unless on the date thereof:
(a) All commitment, facility, agency, legal and other fees required to
be paid or reimbursed to any Lender pursuant to any Canadian Loan Documents or
any commitment agreement heretofore entered into shall have been paid.
(b) No event which would reasonably be expected to have a Material
Adverse Effect shall have occurred since June 30, 2000.
(c) US Borrower shall have certified to Canadian Agent and Lenders that
the Initial Financial Statements fairly present US Borrower's Consolidated
financial position at the respective dates thereof and the Consolidated results
of US Borrower's operations and US Borrower's Consolidated cash flows for the
respective periods thereof.
(d) US Borrower shall have certified to Canadian Agent and Lenders that
no Restricted Person has any outstanding Liabilities of any kind (including
contingent obligations, tax assessments, and unusual forward or long-term
commitments) which are, in the aggregate, material to US Borrower or material
with respect to US Borrower's Consolidated financial condition and not shown in
the Initial Financial Statements or disclosed in the Disclosure Schedule.
(e) Contemporaneously with the making of the first Canadian Loan or the
issuance of the first Letter of Credit, the Indebtedness outstanding under the
Existing US Agreement shall be refinanced under the US Agreement.
(f) All legal matters relating to the Canadian Loan Documents and the
consummation of the transactions contemplated thereby shall be satisfactory to
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., US counsel to Canadian Agent, and Blake, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, Canadian counsel to Canadian Agent.
Section 4.3. Additional Conditions Precedent to all Canadian Loans and
Letters of Credit. No Lender has any obligation to make any Canadian Loan
(including its first), and Canadian LC Issuer has no obligation to issue any
Letter of Credit (including its first), unless the following conditions
precedent have been satisfied:
(a) All representations and warranties made by any Restricted Person in
any Canadian Loan Document shall be true on and as of the date of such Canadian
Loan or the date of issuance
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of such Letter of Credit (except to the extent that the facts upon which such
representations are based have been changed by the extension of credit
hereunder) as if such representations and warranties had been made as of the
date of such Canadian Loan or the date of issuance of such Letter of Credit.
(b) No Default shall exist at the date of such Canadian Loan or the date
of issuance of such Letter of Credit.
(c) The making of such Canadian Loan or the issuance of such Letter of
Credit shall not be prohibited by any Law and shall not subject any Lender or
any LC Issuer to any material penalty under or pursuant to any such Law.
ARTICLE V - Representations and Warranties
To confirm each Lender's understanding concerning Restricted Persons and
Restricted Persons' businesses, properties and obligations and to induce each
Lender to enter into this Agreement and to extend credit hereunder, each
Canadian Borrower represents and warrants to each Lender that:
Section 5.1. No Default. No event has occurred and is continuing which
constitutes a Default.
Section 5.2. Organization and Good Standing. Each Canadian Borrower and
each Subsidiary of a Canadian Borrower that is a Restricted Person is duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, having all powers required to carry on its
business and enter into and carry out the transactions contemplated hereby. Each
Canadian Borrower and each Subsidiary of a Canadian Borrower that is a
Restricted Person is duly qualified, in good standing, and authorized to do
business in all other jurisdictions within Canada wherein the character of the
properties owned or held by it or the nature of the business transacted by it
makes such qualification necessary except where failure to so qualify would not
have a Material Adverse Effect. Each Canadian Borrower and each Subsidiary of a
Canadian Borrower that is a Restricted Person has taken all actions and
procedures customarily taken in order to enter, for the purpose of conducting
business or owning property, each jurisdiction outside Canada wherein the
character of the properties owned or held by it or the nature of the business
transacted by it makes such actions and procedures desirable except where
failure to so qualify would not have a Material Adverse Effect.
Section 5.3. Authorization. Each Canadian Borrower has duly taken all
action necessary to authorize the execution and delivery by it of the Canadian
Loan Documents to which it is a party and to authorize the consummation of the
transactions contemplated thereby and the performance of its obligations
thereunder. Each Canadian Borrower is duly authorized to borrow funds hereunder.
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Section 5.4. No Conflicts or Consents. The execution and delivery by
each Canadian Borrower and each Subsidiary of a Canadian Borrower that is a
Restricted Person of the Canadian Loan Documents to which each is a party, the
performance by each of its obligations under such Canadian Loan Documents, and
the consummation of the transactions contemplated by the various Canadian Loan
Documents, do not and will not (i) conflict with any provision of (A) any Law,
(B) the organizational documents or any unanimous shareholders agreement of any
Restricted Person, or (C) any agreement, judgment, license, order or permit
applicable to or binding upon any Restricted Person unless such conflict would
not reasonably be expected to have a Material Adverse Effect, or (ii) result in
the acceleration of any Indebtedness owed by any Restricted Person which would
reasonably be expected to have a Material Adverse Effect, or (iii) result in or
require the creation of any Lien upon any assets or properties of any Restricted
Person which would reasonably be expected to have a Material Adverse Effect,
except as expressly contemplated or permitted in the Canadian Loan Documents.
Except as expressly contemplated in the Canadian Loan Documents no consent,
approval, authorization or order of, and no notice to or filing with, any
Tribunal or third party is required in connection with the execution, delivery
or performance by any Restricted Person of any Canadian Loan Document or to
consummate any transactions contemplated by the Canadian Loan Documents, unless
failure to obtain such consent would not reasonably be expected to have a
Material Adverse Effect.
Section 5.5. Enforceable Obligations. This Agreement is, and the other
Canadian Loan Documents when duly executed and delivered will be, legal, valid
and binding obligations of each Restricted Person which is a party hereto or
thereto, enforceable in accordance with their terms except as such enforcement
may be limited by bankruptcy, insolvency or similar Laws of general application
relating to the enforcement of creditors' rights.
Section 5.6. Full Disclosure. No certificate, statement or other
information delivered herewith or heretofore by any Canadian Borrower or any
Subsidiary of a Canadian Borrower that is a Restricted Person to any Lender in
connection with the negotiation of this Agreement or in connection with any
transaction contemplated hereby contains any untrue statement of a material fact
or omits to state any material fact known to any such Person (other than
industry-wide risks normally associated with the types of businesses conducted
by Restricted Persons) necessary to make the statements contained herein or
therein not misleading as of the date made or deemed made. There is no fact
known to any such Person (other than industry-wide risks normally associated
with the types of businesses conducted by Restricted Persons) that has not been
disclosed to each Lender in writing which would reasonably be expected to have a
Material Adverse Effect.
Section 5.7. Litigation. Except as disclosed in the Initial Financial
Statements or in the Disclosure Schedule: (a) there are no actions, suits or
legal, equitable, arbitrative or administrative proceedings pending, or to the
knowledge of any Canadian Borrower threatened, against any Canadian Borrower or
any Subsidiary of a Canadian Borrower that is a Restricted Person before any
Tribunal which would reasonably be expected to have a Material Adverse Effect,
and (b) there are no outstanding judgments, injunctions, writs, rulings or
orders by any such Tribunal against any Canadian Borrower which would reasonably
be expected to have a Material Adverse Effect.
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Section 5.8. Environmental and Other Laws. Except as disclosed in the
Disclosure Schedule: (a) Canadian Borrowers and each Subsidiary of a Canadian
Borrower that is a Restricted Person are conducting their businesses in material
compliance with all applicable Laws, including Environmental Laws, and have and
are in compliance with all licenses and permits required under any such Laws,
unless failure to so comply would not reasonably be expected to have a Material
Adverse Effect; (b) none of the operations or properties of any Canadian
Borrowers and each Subsidiary of a Canadian Borrower that is a Restricted Person
is the subject of federal, provincial or local investigation evaluating whether
any material remedial action is needed to respond to a release of any Hazardous
Materials into the environment or to the improper storage or disposal (including
storage or disposal at offsite locations) of any Hazardous Materials, unless
such remedial action would not reasonably be expected to have a Material Adverse
Effect; and (c) neither any Canadian Borrower nor any Subsidiary of a Canadian
Borrower that is a Restricted Person (and to the best knowledge of Canadian
Borrowers, no other Person) has filed any notice under any Law indicating that
any such Person is responsible for the improper release into the environment, or
the improper storage or disposal, of any material amount of any Hazardous
Materials or that any Hazardous Materials have been improperly released, or are
improperly stored or disposed of, upon any property of any such Person, unless
such failure to so comply would not reasonably be expected to have a Material
Adverse Effect.
Section 5.9. Names and Places of Business. Neither Canadian Borrower
has, during the preceding five years, had, been known by, or used any other
trade or fictitious name, except as disclosed in the Disclosure Schedule. Except
as otherwise indicated in the Disclosure Schedule, the chief executive office
and principal place of business of each Canadian Borrower is (and for the
preceding five years have been) located at the address of such Canadian Borrower
set out on the signature pages hereto. Except as indicated in the Disclosure
Schedule, no Canadian Borrower or any Subsidiary of a Canadian Borrower that is
a Restricted Person has any other office or place of business.
Section 5.10. Canadian Borrowers' Subsidiaries. No Canadian Borrower
presently has any Subsidiary or owns any stock in any other corporation or
association except those listed in the Disclosure Schedule. Neither any Canadian
Borrower nor any of its Restricted Subsidiaries is a member of any general or
limited partnership, limited liability company, joint venture or association of
any type whatsoever except (a) those listed in the Disclosure Schedule, (b)
associations, joint ventures or other relationships (i) which are established
pursuant to a standard form operating agreement or similar agreement or which
are partnerships for purposes of federal income taxation only, (ii) which are
not corporations or partnerships (or subject to the Uniform Partnership Act)
under applicable state Law, and (iii) whose businesses are limited to the
exploration, development and operation of oil, gas or mineral properties,
pipelines or gathering systems, transportation and related facilities and
interests owned directly by the parties in such associations, joint ventures or
relationships, and (c) associations, joint ventures or other relationships (i)
which are not corporations or partnerships under applicable provincial Law, and
(ii) whose businesses are limited to the exploration, development and operation
of oil, gas or mineral properties, pipelines or gathering systems,
transportation and related facilities and interests owned directly by the
parties in such associations, joint ventures or relationships. Each
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Canadian Borrower owns, directly or indirectly, the equity interest in each of
its Subsidiaries which is indicated in the Disclosure Schedule.
Section 5.11. Title to Properties; Licenses. Each Canadian Borrower and
each Subsidiary of a Canadian Borrower that is a Restricted Person has good and
defensible title to all of its material properties and assets, free and clear of
all Liens other than Permitted Liens and of all impediments to the use of such
properties and assets in such Person's business except to the extent failure to
have such title would not have a Material Adverse Effect. Each Canadian Borrower
and each Subsidiary of a Canadian Borrower that is a Restricted Person possesses
all licenses, permits, franchises, patents, copyrights, trademarks and trade
names, and other intellectual property (or otherwise possesses the right to use
such intellectual property without violation of the rights of any other Person)
which are necessary to carry out its business as presently conducted and as
presently proposed to be conducted hereafter, and no such Person is in violation
in any material respect of the terms under which it possesses such intellectual
property or the right to use such intellectual property except to the extent
failure to possess such licenses, permits, franchises, and intellectual property
would not have a Material Adverse Effect.
Section 5.12. Solvency. Upon giving effect to the issuance of the
Canadian Notes, the execution of the Canadian Loan Documents by Canadian
Borrowers and the consummation of the transactions contemplated hereby, each
Canadian Borrower will be solvent (as such term is used in applicable
bankruptcy, liquidation, receivership, insolvency or similar Laws).
ARTICLE VI - Affirmative Covenants of Canadian Borrowers
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to each Canadian Borrower, and to induce each
Lender to enter into this Agreement and extend credit hereunder, each Canadian
Borrower warrants, covenants and agrees that until the full and final payment of
the Canadian Obligations and the termination of this Agreement, unless Canadian
Required Lenders have previously agreed otherwise:
Section 6.1. Payment and Performance. Each Canadian Borrower will pay
all amounts due by it under the Canadian Loan Documents in accordance with the
terms thereof and will observe, perform and comply with every covenant, term and
condition expressed or implied in the Canadian Loan Documents to be binding upon
it. Each Canadian Borrower will cause each of its Subsidiaries which is a
Restricted Person to observe, perform and comply with every such term, covenant
and condition in any Loan Document.
Section 6.2. Books, Financial Statements and Reports. Each Canadian
Borrower will at all times maintain full and accurate books of account and
records. Each Canadian Borrower will maintain and will cause its Subsidiaries to
maintain a standard system of accounting, will maintain its Fiscal Year, and
will furnish (or will cause to be furnished) the following statements and
reports to each Lender Party at Canadian Borrowers' expense:
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(a) As soon as available, and in any event within ninety (90) days after
the end of each Fiscal Year, complete Consolidated financial statements of US
Borrower together with all notes thereto, prepared in reasonable detail in
accordance with US GAAP, together with an unqualified opinion, based on an audit
using generally accepted auditing standards, by KPMG Peat Marwick L.L.P., or
other independent certified public accountants selected by US Borrower and
acceptable to US Agent, stating that such Consolidated financial statements have
been so prepared. These financial statements shall contain a Consolidated
balance sheet as of the end of such Fiscal Year and Consolidated statements of
earnings, of cash flows, and of changes in owners' equity for such Fiscal Year,
each setting forth in comparative form the corresponding figures for the
preceding Fiscal Year. In addition, within ninety (90) days after the end of
each Fiscal Year each Canadian Borrower will furnish to Canadian Agent and each
Lender a certificate in the form of Exhibit D signed by the President, Senior
Vice President - Finance, Treasurer or Vice President Accounting of US Borrower,
stating that such financial statements are accurate and complete, stating that
such Person has reviewed the Canadian Loan Documents, containing all
calculations required to be made to show compliance or non-compliance with the
provisions of Section 7.7, and further stating that there is no condition or
event at the end of such Fiscal Year or at the time of such certificate which
constitutes a Default and specifying the nature and period of existence of any
such condition or event.
(b) As soon as available, and in any event within forty-five (45) days
after the end of each Fiscal Quarter, US Borrower's Consolidated and
consolidating balance sheet and income statement as of the end of such Fiscal
Quarter and a Consolidated statement of cash flows for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, all
in reasonable detail and prepared in accordance with US GAAP, subject to changes
resulting from normal year-end adjustments. In addition each Canadian Borrower
will, together with each such set of financial statements, furnish a certificate
in the form of Exhibit D signed by the President, Senior Vice President -
Finance, Treasurer or Vice President - Accounting of such US Borrower stating
that such financial statements are accurate and complete (subject to normal
year-end adjustments), stating that such Person has reviewed the Canadian Loan
Documents, containing all calculations required to be made to show compliance or
non-compliance with the provisions of Section 7.7 and further stating that there
is no condition or event at the end of such Fiscal Quarter or at the time of
such certificate which constitutes a Default and specifying the nature and
period of existence of any such condition or event.
(c) Promptly upon their becoming available, copies of all financial
statements, reports, notices and proxy statements sent by US Borrower or any of
its Subsidiaries that is a Restricted Person to its shareholders and all
registration statements, prospectuses, periodic reports and other statements and
schedules filed by any such Person with any exchange, any securities commission
or any similar Governmental Authority, including any information or estimates
with respect to US Borrower's oil and gas business (including its exploration,
development and production activities) which are required to be furnished in
such Canadian Borrower's annual report pursuant to securities legislation or the
rules, policies and requirements of any Governmental Authority.
Section 6.3. Other Information and Inspections. Each Canadian Borrower
and each Subsidiary of a Canadian Borrower that is a Restricted Person will
furnish to each Lender any
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information which Canadian Agent may from time to time reasonably request
concerning any covenant, provision or condition of the Loan Documents or any
matter in connection with such Persons' businesses and operations. Each Canadian
Borrower and each Subsidiary of a Canadian Borrower that is a Restricted Person
will permit representatives appointed by Canadian Agent (including independent
accountants, auditors, agents, lawyers, appraisers and any other Persons) to
visit and inspect upon prior written notice during normal business hours any of
such Restricted Person's property, including its books of account, other books
and records, and any facilities or other business assets, and to make extra
copies therefrom and photocopies and photographs thereof, and to write down and
record any information such representatives obtain, and each Canadian Borrower
and each Subsidiary of a Canadian Borrower that is a Restricted Person shall
permit Canadian Agent or its representatives to investigate and verify the
accuracy of the information furnished to Canadian Agent or any Lender in
connection with the Loan Documents and to discuss all such matters with its
officers, employees and representatives.
Section 6.4. Notice of Material Events and Change of Address. Canadian
Borrowers will promptly notify each Lender in writing, stating that such notice
is being given pursuant to this Agreement, of:
(a) the occurrence of any event which would have a Material Adverse
Effect,
(b) the occurrence of any Default,
(c) the acceleration of the maturity of any Indebtedness owed by any of
Canadian Borrowers or any of their Subsidiaries that are Restricted Persons
having a principal balance of more than US $100,000,000, or of any default by
any such Person under any indenture, mortgage, agreement, contract or other
instrument to which any of them is a party or by which any of them or any of
their properties is bound, if such default would have a Material Adverse Effect,
(d) the occurrence of any Termination Event,
(e) any claim of US $100,000,000 or more, any notice of potential
liability under any Environmental Laws which might exceed such amount, or any
other material adverse claim asserted against any of Canadian Borrowers or any
of their Subsidiaries that are Restricted Persons or with respect to any such
Person's properties, and
(f) the filing of any suit or proceeding against any Canadian Borrowers
or any of their Subsidiaries that are Restricted Person in which an adverse
decision would reasonably be expected to have a Material Adverse Effect.
Canadian Borrowers will also notify Canadian Agent and Canadian Agent's counsel
in writing promptly in the event that any Canadian Borrower or any of their
Subsidiaries that is a Restricted Person changes its name or the location of its
chief executive office.
Section 6.5. Maintenance of Properties. Each Canadian Borrower and each
Subsidiary of a Canadian Borrower that is a Restricted Person will maintain,
preserve, protect, and keep all
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property used or useful in the conduct of its business in good condition, and
will from time to time make all repairs, renewals and replacements needed to
enable the business and operations carried on in connection therewith to be
promptly and advantageously conducted at all times except to the extent failure
to do so would not reasonably be expected to have a Material Adverse Effect.
Section 6.6. Maintenance of Existence and Qualifications. Each Canadian
Borrower and each Subsidiary of a Canadian Borrower that is a Restricted Person
will maintain and preserve its existence and its rights and franchises in full
force and effect and will qualify to do business in all states or jurisdictions
where required by applicable Law, except where the failure so to qualify will
not have a Material Adverse Effect.
Section 6.7. Payment of Trade Liabilities, Taxes, etc. Each Canadian
Borrower and each Subsidiary of a Canadian Borrower that is a Restricted Person
will (a) timely file all required tax returns; (b) timely pay all taxes,
assessments, and other governmental charges or levies imposed upon it or upon
its income, profits or property; and (c) maintain appropriate accruals and
reserves for all of the foregoing in accordance with US GAAP. Such Restricted
Person may, however, delay paying or discharging any of the foregoing so long as
it is in good faith contesting the validity thereof by appropriate proceedings
and has set aside on its books adequate reserves therefor.
Section 6.8. Insurance. Each Canadian Borrower and each Subsidiary of a
Canadian Borrower that is a Restricted Person will keep or cause to be kept
insured in accordance with industry standards by financially sound and reputable
insurers, its surface equipment and other property of a character usually
insured by similar Persons engaged in the same or similar businesses.
Section 6.9. Performance on Canadian Borrowers' Behalf. If either
Canadian Borrower or any Subsidiary of a Canadian Borrower that is a Restricted
Person fails to pay any taxes, insurance premiums, expenses, lawyers' fees or
other amounts it is required to pay under any Canadian Loan Document, Canadian
Agent may pay the same, and shall use its best efforts to give at least five (5)
Business Days notice to Canadian Borrowers prior to making any such payment;
provided, however, that any failure by Canadian Agent to so notify Canadian
Borrowers shall not limit or otherwise impair Canadian Agent's ability to make
any such payment. Northstar Energy shall immediately reimburse Canadian Agent
for any such payments and each amount paid by Canadian Agent shall constitute a
Canadian Obligation owed hereunder which is due and payable on the date such
amount is paid by Canadian Agent.
Section 6.10. Interest. Each Canadian Borrower hereby promises to each
Lender Party to pay interest at the Default Rate applicable to Canadian Base
Rate Loans on all Canadian Obligations (including Canadian Obligations to pay
fees or to reimburse or indemnify any Lender) which such Canadian Borrower has
in this Agreement promised to pay to such Lender Party and which are not paid
when due. Such interest shall accrue from the date such Canadian Obligations
become due until they are paid.
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Section 6.11. Compliance with Law. Each Canadian Borrower and each
Subsidiary of a Canadian Borrower that is a Restricted Person will conduct its
business and affairs in compliance with all Laws applicable thereto except to
the extent failure to do so would not reasonably be expected to have a Material
Adverse Effect.
Section 6.12. Environmental Matters.
(a) Each Canadian Borrower and each Subsidiary of a Canadian Borrower
that is a Restricted Person will comply in all material respects with all
Environmental Laws now or hereafter applicable to such Restricted Person, as
well as all contractual obligations and agreements with respect to environmental
remediation or other environmental matters, and shall obtain, at or prior to the
time required by applicable Environmental Laws, all environmental, health and
safety permits, licenses and other authorizations necessary for its operations
and will maintain such authorizations in full force and effect, unless such
failure to so comply would not reasonably be expected to have a Material Adverse
Effect.
(b) Each Canadian Borrower will promptly furnish to Canadian Agent all
written notices of violation, orders, claims, citations, complaints, penalty
assessments, suits or other proceedings received by such Canadian Borrower, or
of which it has notice, pending or threatened against such Canadian Borrower, by
any Governmental Authority with respect to any alleged violation of or
non-compliance with any Environmental Laws or any permits, licenses or
authorizations in connection with its ownership or use of its properties or the
operation of its business which involve a potential liability or claim in excess
of US $100,000,000.
Section 6.13. Bank Accounts; Offset. To secure the repayment of the
Obligations each Canadian Borrower hereby grants to each Lender a right of
offset, each of which shall be in addition to all other interests, liens, and
rights of any Lender at common Law, under the Loan Documents, or otherwise, and
each of which shall be upon and against (a) any and all moneys, securities or
other property (and the proceeds therefrom) of such Canadian Borrower now or
hereafter held or received by or in transit to any Lender from or for the
account of such Canadian Borrower, whether for safekeeping, custody, pledge,
transmission, collection or otherwise, (b) any and all deposits (general or
special, time or demand, provisional or final) of such Canadian Borrower with
any Lender, and (c) any other credits and claims of such Canadian Borrower at
any time existing against any Lender, including claims under certificates of
deposit. At any time and from time to time after the occurrence of any Default,
each Lender is hereby authorized to offset against the Obligations then due and
payable (in either case without notice to such Canadian Borrower), any and all
items hereinabove referred to. To the extent that such Canadian Borrower has
accounts designated as royalty or joint interest owner accounts, the foregoing
right of offset shall not extend to funds in such accounts which belong to, or
otherwise arise from payments to such Canadian Borrower for the account of,
third party royalty or joint interest owners.
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ARTICLE VII - Negative Covenants of Canadian Borrowers
To conform with the terms and conditions under which each Lender is
willing to have credit outstanding to each Canadian Borrower, and to induce each
Lender to enter into this Agreement and make the Canadian Loans, each Canadian
Borrower warrants, covenants and agrees that until the full and final payment of
the Canadian Obligations and the termination of this Agreement, unless Canadian
Required Lenders have previously agreed otherwise:
Section 7.1. Indebtedness. Neither any Canadian Borrower nor any
Subsidiary of a Canadian Borrower that is a Restricted Subsidiary will in any
manner owe or be liable for Indebtedness except:
(a) the Canadian Obligations.
(b) capital lease obligations (excluding oil, gas or mineral leases)
entered into in the ordinary course of such Restricted Person's business in
arm's length transactions at competitive market rates under competitive terms
and conditions in all respects, provided that such capital lease obligations
required to be paid in any Fiscal Year do not in the aggregate exceed US
$35,000,000 for all Restricted Subsidiaries, whether or not Subsidiaries of any
Canadian Borrower.
(c) unsecured Liabilities owed among Restricted Persons.
(d) guaranties by one Restricted Person of Liabilities owed by another
Restricted Person, if such Liabilities either (i) are not Indebtedness, or (ii)
are allowed under subsections (a), (b) or (c) of this Section 7.1.
(e) Indebtedness of the Restricted Persons for plugging and abandonment
bonds or for letters of credit issued by any Lender in place thereof which are
required by regulatory authorities in the area of operations, and Indebtedness
of the Restricted Persons for other bonds or letters of credit issued by any
Lender which are required by such regulatory authorities with respect to other
normal oil and gas operations.
(f) non-recourse Indebtedness as to which no Restricted Person (i)
provides any guaranty or credit support of any kind (including any undertaking,
guarantee, indemnity, agreement or instrument that would constitute
Indebtedness) or (ii) is directly or indirectly liable (as a guarantor or
otherwise); provided, that after giving effect to such Indebtedness outstanding
from time to time, US Borrower is not in violation of Section 7.7.
(g) Indebtedness that is subordinated to the US Obligations and the
Canadian Obligations on terms acceptable to Canadian Required Lenders.
(h) Indebtedness in the approximate amount of C $3,459,000 owed to
Indeck Gas Supply Corporation by Northstar Energy pursuant to a Gas Sales and
Purchase Agreement dated as of March 9, 1989, as heretofore or hereafter amended
from time to time.
(i) Acquired Debt.
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(j) Indebtedness under Hedging Contracts.
(k) Indebtedness relating to the surety bond and letter of credit
obligations listed on Schedule 2.
(l) miscellaneous items of Indebtedness of all Restricted Persons (other
than US Borrower) not described in subsections (a) through (m) which do not in
the aggregate exceed US $200,000,000 in principal amount at any one time
outstanding.
Section 7.2. Limitation on Liens. Except for Permitted Liens, neither
any Canadian Borrower nor any Subsidiary of a Canadian Borrower that is a
Restricted Person will create, assume or permit to exist any Lien upon any of
the properties or assets which it now owns or hereafter acquires. Neither any
Canadian Borrower nor any Subsidiary of a Canadian Borrower that is a Restricted
Person will allow the filing or continued existence of any financing statement
describing as collateral any assets or property of such Restricted Person, other
than financing statements which describe only collateral subject to a Lien
permitted under this section and which name as secured party or lessor only the
holder of such Lien.
Section 7.3. Limitation on Mergers. Neither any Canadian Borrower nor
any Subsidiary of a Canadian Borrower that is a Restricted Person will merge or
consolidate with or into any other Person except that any Subsidiary of US
Borrower may be merged into or consolidated with (a) another Subsidiary of US
Borrower, or (b) US Borrower, so long as US Borrower is the surviving business
entity.
Section 7.4. Limitation on Issuance of Securities by Subsidiaries of US
Borrower; Ownership of certain Restricted Subsidiaries by US Borrower.
(a) Neither any Canadian Borrower nor any Subsidiary of a Canadian
Borrower that is a Restricted Person will issue any additional shares of its
capital stock, additional partnership interests or other securities or any
options, warrants or other rights to acquire such additional shares, partnership
interests or other securities except to another Restricted Person which is a
wholly-owned direct or indirect Subsidiary of US Borrower unless (i) such
securities are being issued to acquire a business, directly or indirectly
through the use of the proceeds of such issuance, and (ii) such securities are
convertible into the common shares or similar securities of US Borrower and/or
can be redeemed in cash at the option of the Restricted Person that issued such
securities. In addition, (A) Northstar Energy may issue "Exchangeable Shares"
(as defined in the Restated Articles of Incorporation of Northstar Energy) upon
the terms specified in the Restated Articles of Incorporation of Northstar
Energy as in effect on the date hereof (in this section called "Exchangeable
Shares"), (B) Devon Canada may issue exchangeable shares upon substantially the
same terms as such Exchangeable Shares, and (C) Northstar Energy may issue stock
options to its employees from time to time to acquire such Exchangeable Shares,
provided that such options are granted under a stock option plan of either
Canadian Borrower and/or US Borrower.
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(b) US Borrower will at all times own, directly or indirectly, 100% of
the outstanding shares of common stock of Northstar Energy.
Section 7.5. Limitation on Restricted Payments. The aggregate amount of
Restricted Payments made by the Restricted Persons during any Fiscal Year shall
not exceed five percent (5%) of the book value of the Consolidated Assets of US
Borrower as of the end of the immediately preceding Fiscal year, as adjusted to
take into account any increase associate with an acquisition or merger.
Section 7.6. Transactions with Affiliates. Neither any Canadian
Borrower nor any Subsidiary of a Canadian Borrower that is a Restricted Person
will engage in any material transaction with any of its Affiliates on terms
which are less favorable in any material respect to it than those which would
have been obtainable at the time in arm's-length dealing with Persons other than
such Affiliates, provided that such restriction shall not apply to transactions
among such Restricted Persons that are wholly-owned, directly or indirectly, by
US Borrower.
Section 7.7. Funded Debt to Total Capitalization. At the end of each
Fiscal Quarter, the ratio of US Borrower's Consolidated Total Funded Debt to US
Borrower's Total Capitalization will never exceed sixty-five percent (65%).
ARTICLE VIII - Events of Default and Remedies
Section 8.1. Events of Default. Each of the following events constitutes
an Event of Default under this Agreement:
(a) Any Restricted Person fails to pay any principal component of any
Canadian Obligation when due and payable or fails to pay any other Canadian
Obligation within three (3) days after the date when due and payable, whether at
a date for the payment of a fixed installment or as a contingent or other
payment becomes due and payable or as a result of acceleration or otherwise;
(b) Any "default" or "event of default" occurs under any Canadian Loan
Document which defines either such term, and the same is not remedied within the
applicable period of grace (if any) provided in such Loan Document;
(c) Any Restricted Person fails (other than as referred to in
subsections (a) or (b) above) to (i) duly comply with Section 7.4(b) of the
Canadian Agreement or (ii) duly observe, perform or comply with any other
covenant, agreement, condition or provision of any Canadian Loan Document, and
such failure remains unremedied for a period of thirty (30) days after notice of
such failure is given by Canadian Agent to Canadian Borrower;
(d) Any representation or warranty previously, presently or hereafter
made in writing by or on behalf of any Restricted Person in connection with any
Canadian Loan Document shall prove to have been false or incorrect in any
material respect on any date on or as of which made;
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provided, that if such falsity or lack of correctness is capable of being
remedied or cured within a 30-day period, Canadian Borrowers shall (subject to
the other provisions of this Section 8.1) have a period of 30 days after written
notice thereof has been given to Canadian Borrowers by Canadian Agent within
which to remedy or cure such lack of correctness, or this Agreement, any
Canadian Note, or the Guaranty executed by Canadian Guarantor is asserted to be
or at any time ceases to be valid, binding and enforceable in any material
respect as warranted in Section 5.5 for any reason other than its release or
subordination by Canadian Agent;
(e) Any Restricted Person (i) fails to duly pay any Indebtedness in
excess of US $100,000,000 constituting principal or interest owed by it with
respect to borrowed money or money otherwise owed under any note, bond, or
similar instrument, or (ii) breaches or defaults in the performance of any
agreement or instrument by which any such Indebtedness is issued, evidenced,
governed, or secured, other than a breach or default described in clause (i)
above, and any such failure, breach or default results in the acceleration of
such Indebtedness;
(f) Any Change in Control occurs;
(g) Any "Event of Default" occurs under the US Agreement; and
(h) Any Canadian Borrower or any other Restricted Person having assets
with a book value of at least US $100,000,000:
(i) suffers the entry against it of a judgment, decree or order
for relief by a Tribunal of competent jurisdiction in an involuntary
proceeding commenced under any applicable bankruptcy, insolvency or
other similar Law of any jurisdiction now or hereafter in effect,
including the Bankruptcy and Insolvency Act (Canada) and the Companies'
Creditors Arrangement Act (Canada), as each are from time to time
amended, or has any such proceeding commenced against it which remains
undismissed for a period of thirty days; or
(ii) commences a voluntary case under any applicable bankruptcy,
insolvency or similar Law now or hereafter in effect, including the
Bankruptcy and Insolvency Act (Canada) and the Companies' Creditors
Arrangement Act (Canada), as each are from time to time amended; or
applies for or consents to the entry of an order for relief in an
involuntary case under any such Law; or makes a general assignment for
the benefit of creditors; or fails generally to pay (or admits in
writing its inability to pay) its debts as such debts become due; or
takes corporate or other action to authorize any of the foregoing; or
(iii) suffers the appointment of or taking possession by a
receiver, receiver- manager, liquidator, assignee, custodian, trustee,
sequestrator or similar official of all or a substantial part of its
property in a proceeding brought against or initiated by it, and such
appointment or taking possession is neither made ineffective nor
discharged within thirty days after the making thereof, or such
appointment or taking possession is at any time consented to, requested
by, or acquiesced to by it; or
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(iv) suffers the entry against it of a final judgment for the
payment of money in an amount that exceeds (x) the valid and collectible
insurance in respect thereof or (y) the amount of an indemnity with
respect thereto reasonably acceptable to the Required Lenders by US
$100,000,000 or more, unless the same is discharged within thirty days
after the date of entry thereof or an appeal or appropriate proceeding
for review thereof is taken within such period and a stay of execution
pending such appeal is obtained; or
(v) suffers a levy of distress or execution or possession, or a
writ or warrant of attachment or any similar process to be issued by any
Tribunal against all or any part of its property having a book value of
at least US $100,000,000, and such writ or warrant of attachment or any
similar process is not stayed or released within thirty days after the
entry or levy thereof or after any stay is vacated or set aside.
Upon the occurrence of an Event of Default described in subsection (h)(i),
(h)(ii) or (h)(iii) of this section with respect to Canadian Borrowers, all of
the Canadian Obligations shall thereupon be immediately due and payable, without
demand, presentment, notice of demand or of dishonor and nonpayment, protest,
notice of protest, notice of intention to accelerate, declaration or notice of
acceleration, or any other notice or declaration of any kind, all of which are
hereby expressly waived by Canadian Borrowers and each Restricted Person who at
any time ratifies or approves this Agreement. Upon any such acceleration, any
obligation of any Lender to make any further Canadian Advances, any obligation
of Canadian LC Issuer to issue Letters of Credit hereunder, and any obligation
of Canadian Swing Lender to make any further Canadian Swing Loans shall be
permanently terminated. During the continuance of any other Event of Default,
Canadian Agent at any time and from time to time may (and upon written
instructions from Canadian Required Lenders, Canadian Agent shall), without
notice to Canadian Borrowers or any other Restricted Person, do either or both
of the following: (1) terminate any obligation of Lenders to make Canadian
Advances hereunder, any obligation of Canadian LC Issuer to issue Letters of
Credit hereunder, and any obligation of Canadian Swing Lender to make Canadian
Swing Loans hereunder, and (2) declare any or all of the Canadian Obligations
immediately due and payable, and all such Canadian Obligations shall thereupon
be immediately due and payable, without demand, presentment, notice of demand or
of dishonor and nonpayment, protest, notice of protest, notice of intention to
accelerate, declaration or notice of acceleration, or any other notice or
declaration of any kind, all of which are hereby expressly waived by Canadian
Borrowers and each Restricted Person who at any time ratifies or approves this
Agreement.
Section 8.2. Remedies. If any Event of Default shall occur and be
continuing, each Lender Party may protect and enforce its rights under the
Canadian Loan Documents by any appropriate proceedings, including proceedings
for specific performance of any covenant or agreement contained in any Canadian
Loan Document, and each Lender Party may enforce the payment of any Canadian
Obligations due it or enforce any other legal or equitable right which it may
have. All rights, remedies and powers conferred upon Lender Parties under the
Canadian Loan Documents shall be deemed cumulative and not exclusive of any
other rights, remedies or powers available under the Canadian Loan Documents or
at Law or in equity.
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ARTICLE IX - Canadian Agent
Section 9.1. Appointment, Powers, and Immunities.
(a) Each Lender hereby irrevocably appoints and authorizes Canadian
Agent to act as its agent under this Agreement and the other Canadian Loan
Documents with such powers and discretion as are specifically delegated to
Canadian Agent by the terms of this Agreement and the other Canadian Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent-Related Persons: (i) shall not have any duties or responsibilities
except those expressly set forth in this Agreement and shall not be trustees or
fiduciaries for any Lender; (ii) shall not be responsible to the Lenders for any
recital, statement, representation, or warranty (whether written or oral) made
in or in connection with any Canadian Loan Document or any certificate or other
document referred to or provided for in, or received by any of them under, any
Canadian Loan Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Canadian Loan Document, or any other
document referred to or provided for therein or for any failure by any
Restricted Person or any other Person to perform any of its obligations
thereunder; (iii) shall not be responsible for or have any duty to ascertain,
inquire into, or verify the performance or observance of any covenants or
agreements by any Restricted Person or the satisfaction of any condition or to
inspect the property (including the books and records) of any Restricted Person
or any of its Subsidiaries or Affiliates or for the failure of any Restricted
Person or Lender Party to perform its obligations under any Loan Document; (iv)
shall not be required to initiate or conduct any litigation or collection
proceedings under any Loan Document; and (v) shall not be responsible for any
action taken or omitted to be taken by it under or in connection with any Loan
Document, except for its own gross negligence or willful misconduct; provided ,
however, that no action taken in accordance with the directions of the number of
Lenders herein specified with respect to a particular action shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Canadian Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Without limiting the
generality of the foregoing sentence, the use of the term "agent" herein and in
the other Loan Documents with reference to US Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
(b) US LC Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time (and except for so long) as the US Agent may agree at the request of the
Required Lenders to act for US LC Issuer with respect thereto; provided ,
however, that US LC Issuer shall have all of the benefits and immunities (i)
provided to the US Agent in this Article IX with respect to any acts taken or
omissions suffered by US LC Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the application and agreements for
letters of credit pertaining to the Letters of Credit as fully as if the term
"US Agent" as used in this Article IX included US LC Issuer with respect to such
acts or omissions, and (ii) as additionally provided herein with respect to US
LC Issuer.
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Section 9.2. Reliance by Canadian Agent.
(a) Canadian Agent shall be entitled to rely upon any certification,
notice, instrument, writing, or other communication (including, without
limitation, any thereof by telephone or telecopy) believed by it to be genuine
and correct and to have been signed, sent or made by or on behalf of the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel for any Restricted Person), independent accountants, and other experts
selected by Canadian Agent. Canadian Agent may deem and treat the payee of any
Canadian Note as the holder thereof for all purposes hereof unless and until
Canadian Agent receives and accepts an Assignment and Acceptance executed in
accordance with Section 10.6 hereof. Canadian Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Canadian
Required Lenders, Canadian Majority Lenders or all Lenders, if required
hereunder, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all Lenders and participants. Where this Agreement
expressly permits or prohibits an action unless the Canadian Required Lenders,
Canadian Majority Lenders or all Lenders otherwise determine, the Canadian Agent
shall, and in all other instances, the Canadian Agent may, but shall not be
required to, initiate any solicitation for the consent or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by Canadian Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender; provided, however,
that Canadian Agent shall not be required to take any action that exposes
Canadian Agent to personal liability or that is contrary to any Loan Document or
applicable Law or unless it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking any such action.
Section 9.3. Defaults. Canadian Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
Canadian Agent has received written notice from a Lender or Canadian Borrowers
specifying such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that Canadian Agent receives such a notice of
the occurrence of a Default or Event of Default, Canadian Agent shall give
prompt notice thereof to the Lenders. Canadian Agent shall (subject to Section
9.1 hereof) take such action with respect to such Default or Event of Default as
shall reasonably be directed by the Canadian Required Lenders. Notwithstanding
the foregoing, unless and until Canadian Agent shall have received such
directions, Canadian Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
Section 9.4. Rights as Lender. With respect to its Percentage Share of
the Canadian Maximum Credit Amount and the Canadian Loans made by it, Canadian
Agent (and any successor acting as Canadian Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not
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acting as Canadian Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include Canadian Agent in its individual capacity.
Canadian Agent (and any successor acting as Canadian Agent) and its Affiliates
may (without having to account therefor to any Lender) accept deposits from,
lend money to, make Investments in, provide services to, and generally engage in
any kind of lending, trust, or other business with any Restricted Person or any
of its Subsidiaries or Affiliates as if it were not acting as Canadian Agent,
and Canadian Agent (and any successor acting as Canadian Agent) and its
Affiliates may accept fees and other consideration from any Restricted Person or
any of its Subsidiaries or Affiliates for services in connection with this
Agreement or otherwise without having to account for the same to the Lenders.
Section 9.5. Indemnification. The Lenders agree to indemnify each
Agent-Related Person (to the extent not reimbursed under Section 10.4 hereof,
but without limiting the obligations of Canadian Borrowers under such section)
ratably in accordance with their respective Percentage Shares, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including legal fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against Canadian
Agent (including by any Lender) in any way relating to or arising out of any
Canadian Loan Document or the transactions contemplated thereby or any action
taken or omitted by Canadian Agent under any Canadian Loan Document (INCLUDING
ANY OF THE FOREGOING ARISING FROM THE NEGLIGENCE OF CANADIAN AGENT) ; provided
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be indemnified,
and provided further that no action taken in accordance with the directions of
the number of Lenders herein specified with respect to a particular action shall
be deemed to constitute gross negligence or willful misconduct for purposes of
this Section. Without limitation of the foregoing, each Lender agrees to
reimburse Canadian Agent promptly upon demand for its ratable share of any costs
or expenses payable by Canadian Borrower under Section 10.4, to the extent that
Canadian Agent is not promptly reimbursed for such costs and expenses by
Canadian Borrowers. The agreements contained in this section shall survive
payment in full of the Canadian Loans and all other amounts payable under this
Agreement.
Section 9.6. Non-Reliance on Canadian Agent and Other Lenders . Each
Lender agrees that it has, independently and without reliance on Canadian Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Canadian Borrowers and
their Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon Canadian Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under the Canadian Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lenders by
Canadian Agent hereunder, Canadian Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition, or business of any Restricted
Person or any of its Subsidiaries or Affiliates that may come into the
possession of Canadian Agent or any of its Affiliates.
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Section 9.7. Administrative Agent in its Individual Capacity. Bank of
America Canada and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with each of the Restricted Persons and their respective Affiliates as
though Bank of America Canada were not the Canadian Agent or the Canadian LC
Issuer hereunder and without notice to or consent of Lenders. Lenders
acknowledge that, pursuant to such activities, Bank of America Canada or its
Affiliates may receive information regarding any Restricted Person or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of such Restricted Person or such Affiliate) and
acknowledge that the Canadian Agent shall be under no obligation to provide such
information to them. With respect to its Canadian Loans, Bank of America Canada
shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Canadian Agent
or the Canadian LC Issuer, and the terms "Canadian Lender", "Canadian Lenders",
"Lender" and "Lenders" include Bank of America Canada in its individual
capacity.
Section 9.8. Sharing of Set-Offs and Other Payments. Each Lender Party
agrees that if it shall, whether through the exercise of rights under Canadian
Loan Documents or rights of banker's lien, set off, or counterclaim against
Canadian Borrowers or otherwise, obtain payment of a portion of the aggregate
Canadian Obligations owed to it which, taking into account all distributions
made by Canadian Agent under Section 3.1, causes such Lender Party to have
received more than it would have received had such payment been received by
Canadian Agent and distributed pursuant to Section 3.1, then (a) it shall be
deemed to have simultaneously purchased and shall be obligated to purchase
interests in the Canadian Obligations as necessary to cause all Lender Parties
to share all payments as provided for in Section 3.1, and (b) such other
adjustments shall be made from time to time as shall be equitable to ensure that
Canadian Agent and all Lender Parties share all payments of Canadian Obligations
as provided in Section 3.1; provided, however, that nothing herein contained
shall in any way affect the right of any Lender Party to obtain payment (whether
by exercise of rights of banker's lien, set-off or counterclaim or otherwise) of
indebtedness other than the Canadian Obligations. Canadian Borrowers expressly
consent to the foregoing arrangements and agree that any holder of any such
interest or other participation in the Canadian Obligations, whether or not
acquired pursuant to the foregoing arrangements, may to the fullest extent
permitted by Law exercise any and all rights of banker's lien, set-off, or
counterclaim as fully as if such holder were a holder of the Canadian
Obligations in the amount of such interest or other participation. If all or any
part of any funds transferred pursuant to this section is thereafter recovered
from the seller under this section which received the same, the purchase
provided for in this section shall be deemed to have been rescinded to the
extent of such recovery, together with interest, if any, if interest is required
pursuant to the order of a Tribunal order to be paid on account of the
possession of such funds prior to such recovery.
Section 9.9. Investments. Whenever Canadian Agent in good faith
determines that it is uncertain about how to distribute to Lender Parties any
funds which it has received, or whenever Canadian Agent in good faith determines
that there is any dispute among Lender Parties about how such funds should be
distributed, Canadian Agent may choose to defer distribution of the funds which
are the subject of such uncertainty or dispute. If Canadian Agent in good faith
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believes that the uncertainty or dispute will not be promptly resolved, or if
Canadian Agent is otherwise required to invest funds pending distribution to
Lender Parties, Canadian Agent shall invest such funds pending distribution; all
interest on any such Investment shall be distributed upon the distribution of
such Investment and in the same proportion and to the same Persons as such
Investment. All moneys received by Canadian Agent for distribution to Lender
Parties (other than to the Person who is Canadian Agent in its separate capacity
as a Lender Party) shall be held by Canadian Agent pending such distribution
solely as Canadian Agent for such Lender Parties, and Canadian Agent shall have
no equitable title to any portion thereof.
Section 9.10. Benefit of Article IX. The provisions of this Article
(other than the following Section 9.11) are intended solely for the benefit of
Lender Parties, and no Restricted Person shall be entitled to rely on any such
provision or assert any such provision in a claim or defense against any Lender.
Lender Parties may waive or amend such provisions as they desire without any
notice to or consent of Canadian Borrower or any Restricted Person.
Section 9.11. Resignation. Canadian Agent may resign at any time by
giving written notice thereof to Lenders and Canadian Borrowers. Each such
notice shall set forth the date of such resignation. Upon any such resignation,
Canadian Required Lenders shall have the right to appoint a successor Canadian
Agent and if no Default or Event of Default has occurred and is continuing,
Canadian Required Lenders shall obtain the consent of Canadian Borrowers. A
successor must be appointed for any retiring Canadian Agent, and such Canadian
Agent's resignation shall become effective when such successor accepts such
appointment. If, within thirty days after the date of the retiring Canadian
Agent's resignation, no successor Canadian Agent has been appointed and has
accepted such appointment, then the retiring Canadian Agent may appoint a
successor Canadian Agent, which shall be a commercial bank organized or licensed
to conduct a banking or trust business under the Laws of Canada or of any
province thereof and if no Default or Event of Default has occurred and is
continuing, retiring Canadian Agent shall obtain the consent of Canadian
Borrowers. Upon the acceptance of any appointment as Canadian Agent hereunder by
a successor Canadian Agent, the retiring Canadian Agent shall be discharged from
its duties and obligations under this Agreement and the other Canadian Loan
Documents. After any retiring Canadian Agent's resignation hereunder the
provisions of this Article IX shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Canadian Agent under the
Canadian Loan Documents.
Section 9.12. Lenders to Remain Pro Rata. It is the intent of all
parties hereto that the pro rata share of each Lender in the Tranche B Loans and
in the Canadian Obligations and the related rights and obligations of such
Lender under the Loan Documents shall be substantially the same at all times
during the term of this Agreement. Accordingly, the initial Tranche B Percentage
Share of each Tranche B Lender in the Tranche B Maximum Credit Amount will be
the same as the initial Percentage Share of such Lender in the Canadian Maximum
Credit Amount. All subsequent assignments and adjustments of the interests of
the Tranche B Lenders in the Tranche B Facility and the Canadian Obligations
will be made so as to maintain such a pro rata arrangement; provided that for
the purposes of determining these pro rata shares, any Percentage Share held by
any Lender's Affiliates shall be included in determining the interests of such
Lender.
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Section 9.13. Other Agents. None of the Lenders identified on the facing
page or signature pages of this Agreement as a "syndication agent" or
"documentation agent" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE X - Miscellaneous
Section 10.1. Waivers and Amendments; Acknowledgments.
(a) Waivers and Amendments. No failure or delay (whether by course of
conduct or otherwise) by any Lender Party in exercising any right, power or
remedy which such Lender Party may have under any of the Canadian Loan Documents
shall operate as a waiver thereof or of any other right, power or remedy, nor
shall any single or partial exercise by any Lender Party of any such right,
power or remedy preclude any other or further exercise thereof or of any other
right, power or remedy. No waiver of any provision of any Canadian Loan Document
and no consent to any departure therefrom shall ever be effective unless it is
in writing and signed as provided below in this section, and then such waiver or
consent shall be effective only in the specific instances and for the purposes
for which given and to the extent specified in such writing. No notice to or
demand on any Restricted Person shall in any case of itself entitle any
Restricted Person to any other or further notice or demand in similar or other
circumstances. This Agreement and the other Canadian Loan Documents set forth
the entire understanding between the parties hereto with respect to the
transactions contemplated herein and therein and supersede all prior discussions
and understandings with respect to the subject matter hereof and thereof, and no
waiver, consent, release, modification or amendment of or supplement to this
Agreement or the other Canadian Loan Documents shall be valid or effective
against any party hereto unless the same is in writing and signed by (i) if such
party is Canadian Borrowers, by Canadian Borrowers, (ii) if such party is
Canadian Agent or Canadian LC Issuer, by such party, and (iii) if such party is
a Lender, by such Lender or by Canadian Agent on behalf of Lenders with the
written consent of Canadian Required Lenders (which consent has already been
given as to the termination of the Canadian Loan Documents as provided in
Section 10.10). Notwithstanding the foregoing or anything to the contrary
herein, Canadian Agent shall not, without the prior consent of US Majority
Lenders and Canadian Majority Lenders, execute and deliver on behalf of such
Lender any waiver or amendment which would increase the Canadian Maximum Credit
Amount hereunder, except in connection with the Re-allocations described in
Section 1.12. Notwithstanding the foregoing or anything to the contrary herein,
Canadian Agent shall not, without the prior consent of each individual Canadian
Lender, execute and deliver on behalf of such Lender any waiver or amendment
which would: (1) waive any of the conditions specified in Article IV, (2)
increase the maximum amount which such Lender is committed hereunder to lend,
(3) reduce any fees payable to such Lender hereunder, or the principal of, or
interest on, such Lender's Note, (4) postpone any date fixed for any payment of
any such fees, principal or interest, (5) change the aggregate amount of
Percentage Shares which is required for Canadian Agent,
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Lenders or any of them to take any particular action under the Canadian Loan
Documents, (6) release Canadian Borrowers from their obligation to pay such
Lender's Note or Canadian Guarantor from its guaranty of such payment, or (7)
amend this Section 10.1(a), except in connection with the Re-allocations
described in Section 1.12.
(b) Acknowledgments and Admissions. Canadian Borrower hereby represents,
warrants, acknowledges and admits that (i) it has been advised by counsel in the
negotiation, execution and delivery of the Canadian Loan Documents to which it
is a party, (ii) it has made an independent decision to enter into this
Agreement and the other Canadian Loan Documents to which it is a party, without
reliance on any representation, warranty, covenant or undertaking by Canadian
Agent or any Lender, whether written, oral or implicit, other than as expressly
set out in this Agreement or in another Canadian Loan Document delivered on or
after the date hereof, (iii) there are no representations, warranties,
covenants, undertakings or agreements by any Lender as to the Canadian Loan
Documents except as expressly set out in this Agreement or in another Canadian
Loan Document delivered on or after the date hereof, (iv) no Lender has any
fiduciary obligation toward such Canadian Borrower with respect to any Canadian
Loan Document or the transactions contemplated thereby, (v) the relationship
pursuant to the Canadian Loan Documents between such Canadian Borrower and the
other Restricted Persons, on one hand, and each Lender, on the other hand, is
and shall be solely that of debtor and creditor, respectively, (vi) no
partnership or joint venture exists with respect to the Canadian Loan Documents
between any Restricted Person and any Lender, (vii) Canadian Agent is not such
Canadian Borrower's Canadian Agent, but Canadian Agent for Lenders, (viii)
without limiting any of the foregoing, Canadian Borrower is not relying upon any
representation or covenant by any Lender, or any representative thereof, and no
such representation or covenant has been made, that any Lender will, at the time
of an Event of Default or Default, or at any other time, waive, negotiate,
discuss, or take or refrain from taking any action permitted under the Canadian
Loan Documents with respect to any such Event of Default or Default or any other
provision of the Canadian Loan Documents, and (ix) all Lender Parties have
relied upon the truthfulness of the acknowledgments in this section in deciding
to execute and deliver this Agreement and to become obligated hereunder.
(c) Joint Acknowledgment. THIS WRITTEN AGREEMENT AND THE OTHER CANADIAN
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
(d) Annual Rates of Interest. For the purposes of the Interest Act
(Canada), whenever interest payable pursuant to this Agreement is calculated on
the basis of a period other than a calendar year (the "Interest Period"), each
rate of interest determined pursuant to such calculation expressed as an annual
rate is equivalent to such rate as so determined multiplied by the actual
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number of days in the calendar year in which the same is to be ascertained and
divided by the number of days in the Interest Period.
Section 10.2. Survival of Agreements; Cumulative Nature. All of
Restricted Persons' various representations, warranties, covenants and
agreements in the Canadian Loan Documents shall survive the execution and
delivery of this Agreement and the other Canadian Loan Documents and the
performance hereof and thereof, including the making or granting of the Canadian
Loans and the delivery of the Canadian Notes and the other Canadian Loan
Documents, and shall further survive until all of the Canadian Obligations are
paid in full to each Lender Party and all of Lender Parties' obligations to
Canadian Borrowers are terminated. All statements and agreements contained in
any certificate or other instrument delivered by any Restricted Person to any
Lender Party under any Canadian Loan Document shall be deemed representations
and warranties by each Canadian Borrower or agreements and covenants of Canadian
Borrower under this Agreement. The representations, warranties, indemnities, and
covenants made by Restricted Persons in the Canadian Loan Documents, and the
rights, powers, and privileges granted to Lender Parties in the Canadian Loan
Documents, are cumulative, and, except for expressly specified waivers and
consents, no Canadian Loan Document shall be construed in the context of another
to diminish, nullify, or otherwise reduce the benefit to any Lender Party of any
such representation, warranty, indemnity, covenant, right, power or privilege.
In particular and without limitation, no exception set out in this Agreement to
any representation, warranty, indemnity, or covenant herein contained shall
apply to any similar representation, warranty, indemnity, or covenant contained
in any other Canadian Loan Document, and each such similar representation,
warranty, indemnity, or covenant shall be subject only to those exceptions which
are expressly made applicable to it by the terms of the various Canadian Loan
Documents.
Section 10.3. Notices. All notices, requests, consents, demands and
other communications required or permitted under any Canadian Loan Document
shall be in writing, unless otherwise specifically provided in such Canadian
Loan Document (provided that Canadian Agent may give telephonic notices to the
other Lender Parties), and shall be deemed sufficiently given or furnished if
delivered by personal delivery, by facsimile or other electronic transmission,
by delivery service with proof of delivery, or by registered Canadian mail,
postage prepaid, to each Canadian Borrower and Restricted Persons at the address
of each Canadian Borrower specified on the signature pages hereto and to
Canadian Agent at its address specified on the signature pages hereto and to
each Lender Party at the address specified on Annex II (unless changed by
similar notice in writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be deemed to have been given
(a) in the case of personal delivery or delivery service, as of the date of
first attempted delivery during normal business hours at the address provided
herein, (b) in the case of facsimile or other electronic transmission, upon
receipt, or (c) in the case of registered Canadian mail, five Business Days
after deposit in the mail; provided, however, that no Borrowing Notice shall
become effective until actually received by Canadian Agent.
Section 10.4. Payment of Expenses; Indemnity.
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(a) Payment of Expenses. Whether or not the transactions contemplated by
this Agreement are consummated, Northstar Energy will promptly (and in any
event, within 30 days after any invoice or other statement or notice) pay: (i)
all reasonable costs and expenses incurred by or on behalf of Canadian Agent
(including without limitation, legal fees) in connection with (1) the
negotiation, preparation, execution and delivery of the Canadian Loan Documents,
and any and all consents, waivers or other documents or instruments relating
thereto, (2) the borrowings hereunder and other action reasonably required in
the course of administration hereof, (3) monitoring or confirming (or
preparation or negotiation of any document related to) Canadian Borrowers'
compliance with any covenants or conditions contained in this Agreement or in
any Canadian Loan Document, and (ii) all reasonable costs and expenses incurred
by or on behalf of any Lender Party (including without limitation, legal fees,
consultants' fees and accounting fees) in connection with the defense or
enforcement of any of the Canadian Loan Documents (including this section) or
the defense of any Lender Party's exercise of its rights thereunder.
(b) INDEMNITY. NORTHSTAR ENERGY AGREES TO INDEMNIFY EACH AGENT-RELATED
PERSON AND EACH LENDER PARTY, UPON DEMAND, FROM AND AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, CLAIMS, LOSSES, DAMAGES, PENALTIES, FINES, ACTIONS,
JUDGMENTS, SUITS, SETTLEMENTS, COSTS, EXPENSES OR DISBURSEMENTS, EXCLUDING
PRINCIPAL AND INTEREST OWING BY DEVON CANADA WITH RESPECT TO CANADIAN ADVANCES
MADE TO DEVON CANADA, BUT INCLUDING REASONABLE FEES OF LEGAL COUNSEL,
ACCOUNTANTS, EXPERTS AND ADVISORS) OF ANY KIND OR NATURE WHATSOEVER (IN THIS
SECTION COLLECTIVELY CALLED "LIABILITIES AND COSTS") WHICH TO ANY EXTENT (IN
WHOLE OR IN PART) MAY BE IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST SUCH
LENDER PARTY GROWING OUT OF, RESULTING FROM OR IN ANY OTHER WAY ASSOCIATED WITH
THE CANADIAN LOAN DOCUMENTS AND THE TRANSACTIONS AND EVENTS (INCLUDING THE
ENFORCEMENT OR DEFENSE THEREOF) AT ANY TIME ASSOCIATED THEREWITH OR CONTEMPLATED
THEREIN (WHETHER ARISING IN CONTRACT OR IN TORT OR OTHERWISE AND INCLUDING ANY
VIOLATION OR NONCOMPLIANCE WITH ANY ENVIRONMENTAL LAWS BY ANY AGENT-RELATED
PERSON OR ANY LENDER PARTY OR ANY OTHER PERSON OR ANY LIABILITIES OR DUTIES OF
ANY AGENT-RELATED PERSON OR ANY LENDER PARTY OR ANY OTHER PERSON WITH RESPECT TO
HAZARDOUS MATERIALS FOUND IN OR RELEASED INTO THE ENVIRONMENT).
THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND
COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM
OR THEORY OF STRICT LIABILITY OR CAUSED, IN WHOLE OR IN PART BY ANY NEGLIGENT
ACT OR OMISSION OF ANY KIND BY ANY AGENT-RELATED PERSON OR LENDER PARTY,
provided only that no Agent-Related Person or Lender Party shall be entitled
under this section to receive indemnification for that portion, if any, of any
liabilities and costs which is proximately caused by its own individual gross
negligence or willful misconduct, as determined in a final judgment. If any
Person (including Canadian Borrowers or any of their Affiliates) ever alleges
such gross negligence or willful misconduct by any Lender Party, the
indemnification provided for in this section shall nonetheless be paid upon
demand, subject to later adjustment or reimbursement, until such time as a court
of competent jurisdiction enters a final judgment as to
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the extent and effect of the alleged gross negligence or willful misconduct. As
used in this section the term "Lender Party" shall refer not only to each Person
designated as such in Section 1.1 but also to each director, officer, agent,
attorney, employee, representative, attorney-in-fact and Affiliate of such
Person.
Section 10.5. Parties in Interest. All grants, covenants and agreements
contained in the Canadian Loan Documents shall bind and inure to the benefit of
the parties thereto and their respective successors and assigns; provided,
however, that no Restricted Person may assign or transfer any of its rights or
delegate any of its duties or obligations under any Canadian Loan Document
without the prior consent of all Lenders (and any attempted assignment or
transfer by any Restricted Person without such consent shall be null and void).
No Canadian Borrower nor any Affiliates of any Canadian Borrower shall directly
or indirectly purchase or otherwise retire any Canadian Obligations owed to any
Lender nor will any Lender accept any offer to do so, unless each Lender shall
have received substantially the same offer with respect to the same Percentage
Share of the Canadian Obligations owed to it. If Canadian Borrower or any
Affiliate of any Canadian Borrower at any time purchases some but less than all
of the Canadian Obligations owed to all Lender Parties, such purchaser shall not
be entitled to any rights of any Lender under the Canadian Loan Documents unless
and until Canadian Borrowers or their Affiliates have purchased all of the
Canadian Obligations.
Section 10.6. Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Transferees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Canadian Loans, Canadian Note, and its
Percentage Share of the Canadian LC Obligations and the Canadian Maximum Credit
Amount); provided, however, that
(i) each such assignment shall be to an Eligible Transferee;
(ii) together with each such assignment of its rights and
obligations under this Agreement, such Lender shall assign the same
Percentage Share of its rights and obligations with respect to the
Tranche B Loans under the US Agreement to the same Eligible Transferee
or an Affiliate of such Eligible Transferee;
(iii) except in the case of such an assignment to another Lender
or an assignment of all of a Lender's rights and obligations under this
Agreement, any partial assignment of such Lender's rights and
obligations under this Agreement and under the US Agreement shall be in
a collective amount at least equal to US $20,000,000 or an integral
multiple of US $5,000,000 in excess thereof (in the case of the US
Agreement calculated with respect to the Maximum US Credit Amount during
the Tranche B Revolving Period and thereafter calculated with respect to
the aggregate amount of the Tranche B Facility Usage and the Tranche A
Maximum Credit Amount, and in the case of the Canadian Credit Agreement
calculated with respect to the Canadian Maximum Credit Amount during the
Canadian Revolving Period and thereafter calculated with respect to the
Canadian Facility Usage);
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(iv) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under
the Canadian Loan Documents, excluding, in the case of Bank of America
Canada, Canadian Swing Loans; and
(v) the parties to such assignment shall execute and deliver to
Canadian Agent for its acceptance an Assignment and Acceptance in the
form of Exhibit F hereto, together with any Canadian Note subject to
such assignment and a processing fee of US$3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this section, the assignor, Canadian
Agent and Canadian Borrowers shall make appropriate arrangements so that, if
required, new Canadian Notes are issued to the assignor and the assignee. If the
assignee is not incorporated under the Laws of Canada or a province thereof, it
shall deliver to Canadian Borrowers and Canadian Agent certification as to
exemption from deduction or withholding of Taxes in accordance with Section 3.9
of the US Agreement.
(b) Canadian Agent shall maintain at its address referred to in Section
10.3 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
their Percentage Share of the Canadian Maximum Credit Amount of, and principal
amount of the Canadian Loans owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and Canadian Borrowers, Canadian Agent and the
Lenders may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by Canadian Borrowers or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Canadian Note subject to such assignment and
payment of the processing fee, Canadian Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit F
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
(d) Each Lender may sell participations to one or more Persons that are
Eligible Transferees in all or a portion of its rights and obligations under
this Agreement (including all or a portion of the Canadian Maximum Credit Amount
and its Canadian Loans); provided, however, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the benefit of the yield
protection provisions contained in Article III (provided that a participant
shall not be entitled to receive any greater payment under Section 3.1 or 3.2
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such participant, unless the sale of the participation
to such participant is
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made with the Canadian Borrowers' prior written consent. A participant that
would have been subject to Section 3.9 if it were a Lender, shall not be
entitled to the benefits of Section 3.1 unless Canadian Borrowers have been
notified of the participation sold to such participant, and such participant
agrees, for the benefit of Canadian Borrowers, to comply with such Section as if
it were a Lender) and the right of offset contained in Section 6.13 (provided
that such participant agrees to be subject to Section 9.8 as if it were a
Lender), and (iv) Canadian Borrowers shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement, and such Lender shall retain the sole right to enforce the
obligations of Canadian Borrowers relating to its Canadian Loans and its
Canadian Note and to approve any amendment, modification, or waiver of any
provision of this Agreement (provided that such Lender may agree that it will
not approve amendments, modifications, or waivers decreasing the amount of
principal of or the rate at which interest is payable on such Canadian Loans or
Canadian Note, extending any scheduled principal payment date or date fixed for
the payment of interest on such Canadian Loans or Canadian Note, or extending
its Canadian Maximum Credit Amount without the prior consent of the
participant).
(e) If the consent of Canadian Borrowers to an assignment or to an
Eligible Assignee is required hereunder, Canadian Borrowers shall be deemed to
have given their consent ten (10) Business Days after the date notice thereof
has been delivered by the assigning Lender (through Canadian Agent) unless such
consent is expressly refused by Canadian Borrowers prior to such tenth Business
Day.
(f) Notwithstanding anything to the contrary contained herein, if at any
time Bank of America Canada assigns all of its Percentage Share in the Canadian
Obligations and its rights and obligations hereunder pursuant to subsection
10.6(a) above, Bank of America Canada may resign as Canadian LC Issuer and/or
terminate its commitment to make Canadian Swing Loans by giving written notice
thereof to Canadian Borrowers and Canadian Lenders. Each such notice shall set
forth the date of such resignation; provided that any such resignation or
termination shall not become effective until a successor has been appointed as
provided below and has accepted such appointment. In the event of any such
resignation by Bank of America Canada as Canadian LC Issuer or termination of
its commitment to make Canadian Swing Loans, Canadian Borrowers shall be
entitled to appoint from among the Canadian Lenders a successor Canadian LC
Issuer or Canadian Swing Lender hereunder. If, within sixty days after notice
has been given to Canadian Borrowers and Canadian Lenders of any such
resignation or termination, no successor Canadian LC Issuer or Canadian Swing
Lender, as the case may be, has been appointed and has accepted such
appointment, then Bank of America Canada may appoint such a successor, which
shall be a commercial bank organized or licensed to conduct a banking or trust
business under the Laws of Canada or of any province thereof. If Bank of America
Canada resigns as Canadian LC Issuer, it shall retain all the rights and
obligations of Canadian LC Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as Canadian LC
Issuer and all Canadian LC Obligations with respect thereto (including the right
to require Canadian Lenders to make Canadian Prime Rate Loans or fund
participations in unreimbursed amounts pursuant to Section 2.8. If Bank of
America Canada terminates its commitment to make Canadian Swing Loans, it shall
retain all the rights of Canadian Swing Lender provided for hereunder with
respect to Canadian Swing Loans made by it and outstanding as of the effective
date of such termination,
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including the right to require the Canadian Lenders to make Canadian Prime Rate
Loans (or other Advances if requested by a Canadian Borrower) or fund
participations in outstanding Canadian Swing Loans pursuant to Section 1.11.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender residing in the United States may at any time assign and pledge all or
any portion of its Canadian Advances and its Canadian Note to any Federal
Reserve Bank as collateral security pursuant to Regulation A and any Operating
Circular issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(h) Any Lender may furnish any information concerning Canadian Borrowers
or any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject, however, to the provisions of Section 10.7 hereof.
Section 10.7. Confidentiality. Canadian Agent and each Lender (in this
Section each is called a "Lending Party") agrees to keep confidential any
information furnished or made available to it by Canadian Borrowers pursuant to
this Agreement that is marked confidential; provided that nothing herein shall
prevent any Lending Party from disclosing such information (a) to any other
Lending Party or any Affiliate of any Lending Party, or any officer, director,
employee, agent, or advisor of any Lending Party or Affiliate of any Lending
Party, (b) to any other Person if reasonably incidental to the administration of
the credit facility provided herein, (c) as required by any Law, rule, or
regulation, (d) upon the order of any Tribunal, (e) upon the request or demand
of any regulatory agency or authority, (f) that is or becomes available to the
public or that is or becomes available to any Lending Party other than as a
result of a disclosure by any Lending Party prohibited by this Agreement, (g) in
connection with any litigation to which such Lending Party or any of its
Affiliates may be a party, (h) to the extent necessary in connection with the
exercise of any remedy under this Agreement or any other Canadian Loan Document,
and (i) subject to provisions substantially similar to those contained in this
section, to any actual or proposed participant or assignee.
Section 10.8. Governing Law; Submission to Process. EXCEPT TO THE EXTENT
THAT THE LAW OF ANOTHER JURISDICTION IS EXPRESSLY ELECTED IN A CANADIAN LOAN
DOCUMENT, THE CANADIAN LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS AND INSTRUMENTS
MADE UNDER THE LAWS OF THE PROVINCE OF ALBERTA AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE PROVINCE OF ALBERTA
AND THE LAWS OF CANADA APPLICABLE THERETO, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HEREBY AGREES THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST SUCH CANADIAN BORROWER WITH RESPECT TO THIS AGREEMENT, THE
CANADIAN NOTES OR ANY OF THE CANADIAN LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE PROVINCE OF ALBERTA AND EACH PARTY SUBMITS AND ATTORNS TO, THE
NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY WAIVES ANY RIGHT
TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING BROUGHT BEFORE SAID COURTS ON THE
BASIS OF FORUM NON CONVENIENS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER
PARTIES TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF LENDER PARTIES TO BRING PROCEEDINGS AGAINST CANADIAN BORROWERS IN THE
COURTS OF ANY OTHER JURISDICTION.
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Section 10.9. Waiver of Judgment Interest Act (Alberta). To the extent
permitted by Law, the provisions of the Judgment Interest Act (Alberta) shall
not apply to the Canadian Loan Documents and are hereby expressly waived by
Canadian Borrowers.
Section 10.10. Deemed Reinvestment Not Applicable. For the purposes of
the Interest Act (Canada), the principle of deemed reinvestment of interest
shall not apply to any interest calculation under the Canadian Loan Documents,
and the rates of interest stipulated in this Agreement are intended to be
nominal rates and not effective rates or yields.
Section 10.11. Limitation on Interest. Lender Parties, Restricted
Persons and any other parties to the Canadian Loan Documents intend to contract
in strict compliance with applicable usury Law from time to time in effect. In
furtherance thereof such Persons stipulate and agree that none of the terms and
provisions contained in the Canadian Loan Documents shall ever be construed to
create a contract to pay, for the use, forbearance or detention of money,
interest in excess of the maximum amount of interest permitted to be charged by
applicable Law from time to time in effect. Neither any Restricted Person nor
any present or future guarantors, endorsers, or other Persons hereafter becoming
liable for payment of any Obligation shall ever be liable for unearned interest
thereon or shall ever be required to pay interest thereon in excess of the
maximum amount that may be lawfully charged under applicable Law from time to
time in effect, and the provisions of this section shall control over all other
provisions of the Canadian Loan Documents which may be in conflict or apparent
conflict herewith. Lender Parties expressly disavow any intention to charge or
collect excessive unearned interest or finance charges in the event the maturity
of any Obligation is accelerated. If (a) the maturity of any Obligation is
accelerated for any reason, (b) any Obligation is prepaid and as a result any
amounts held to constitute interest are determined to be in excess of the legal
maximum, or (c) any Lender or any other holder of any or all of the Obligations
shall otherwise collect moneys which are determined to constitute interest which
would otherwise increase the interest on any or all of the Obligations to an
amount in excess of that permitted to be charged by applicable Law then in
effect, then all sums determined to constitute interest in excess of such legal
limit shall, without penalty, be promptly applied to reduce the then outstanding
principal of the related Obligations or, at such Lender's or holder's option,
promptly returned to Canadian Borrowers or the other payor thereof upon such
determination. In determining whether or not the interest paid or payable, under
any specific circumstance, exceeds the maximum amount permitted under applicable
Law, Lender Parties and Restricted Persons (and any other payors thereof) shall
to the greatest extent permitted under applicable Law, and in accordance with
generally accepted actuarial practices and principles, (i) characterize any
non-principal payment as an expense, fee or premium rather than as interest,
(ii) exclude voluntary prepayments and the effects thereof, and (iii) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the instruments evidencing the Obligations in accordance
with the amounts outstanding from time to time thereunder and the maximum legal
rate of interest from time to time in effect under applicable Law in order to
lawfully charge the maximum amount of interest permitted under applicable Law.
In no event shall the aggregate "interest" (as defined in section 347 of the
Criminal Code (Canada)) payable under the Canadian Loan Documents exceed the
maximum effective annual rate of interest on the "credit advanced" (as defined
in that section) permitted under that section and, if any payment, collection or
demand pursuant to this Agreement in
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respect of "interest" (as defined in that section) is determined to be contrary
to the provisions of that section, such payment, collection or demand shall be
deemed to have been made by mutual mistake of Canadian Borrowers, Canadian Agent
and Lenders and the amount of such excess payment or collection shall be
refunded to Canadian Borrowers. For purposes of the Canadian Loan Documents, the
effective annual rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles over the term applicable
to the Canadian Obligations on the basis of annual compounding of the lawfully
permitted rate of interest and, in the event of dispute, a certificate of a
Fellow of the Canadian Institute of Actuaries appointed by Canadian Agent shall
be prima facie evidence, for the purposes of such determination.
Section 10.12. Termination; Limited Survival. In their sole and absolute
discretion, Canadian Borrowers may at any time that no Canadian Obligations are
owing elect in a written notice delivered to Canadian Agent to terminate this
Agreement. Upon receipt by Canadian Agent of such a notice, if no Canadian
Obligations are then owing this Agreement and all other Canadian Loan Documents
shall thereupon be terminated and the parties thereto released from all
prospective obligations thereunder. Notwithstanding the foregoing or anything
herein to the contrary, any waivers or admissions made by any Restricted Person
in any Canadian Loan Document, any Obligations under Sections 3.2 through 3.6,
and any obligations which any Person may have to indemnify or compensate any
Lender Party shall survive any termination of this Agreement or any other
Canadian Loan Document. At the request and expense of Canadian Borrowers,
Canadian Agent shall prepare and execute all necessary instruments to reflect
and effect such termination of the Canadian Loan Documents. Canadian Agent is
hereby authorized to execute all such instruments on behalf of all Lenders,
without the joinder of or further action by any Lender.
Section 10.13. Severability. If any term or provision of any Canadian
Loan Document shall be determined to be illegal or unenforceable all other terms
and provisions of the Canadian Loan Documents shall nevertheless remain
effective and shall be enforced to the fullest extent permitted by applicable
Law.
Section 10.14. Counterparts; Fax. This Agreement may be separately
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to
constitute one and the same Agreement. This Agreement and the Canadian Loan
Documents may be validly executed and delivered by facsimile or other electronic
transmission.
Section 10.15. Waiver of Jury Trial, Punitive Damages, etc. EACH
CANADIAN BORROWER AND EACH LENDER PARTY HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY (A) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED
BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE CANADIAN LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED
THEREBY OR ASSOCIATED THEREWITH, BEFORE OR AFTER MATURITY, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND,
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ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY, (B) WAIVES,
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY "SPECIAL DAMAGES", AS DEFINED BELOW, (C)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR
ANY PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS, AND (D) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT, THE OTHER CANADIAN LOAN DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS SECTION. AS USED IN THIS SECTION, "SPECIAL DAMAGES" INCLUDES
ALL SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW
NAMED), BUT DOES NOT INCLUDE ANY PAYMENTS OR FUNDS WHICH ANY PARTY HERETO HAS
EXPRESSLY PROMISED TO PAY OR DELIVER TO ANY OTHER PARTY HERETO.
Section 10.16. Defined Terms. Capitalized terms and phrases used and not
otherwise defined herein shall for all purposes of this Agreement have the
meaning given to such terms and phrases in Annex I hereto.
Section 10.17. Annex I, Exhibits and Schedules; Additional Definitions.
Annex I, Annex II, and all Exhibits and Schedules attached to this Agreement are
a part hereof for all purposes.
Section 10.18. Amendment of Defined Instruments. Unless the context
otherwise requires or unless otherwise provided herein the terms defined in this
Agreement which refer to a particular agreement, instrument or document also
refer to and include all renewals, extensions, modifications, amendments and
restatements of such agreement, instrument or document, provided that nothing
contained in this section shall be construed to authorize any such renewal,
extension, modification, amendment or restatement.
Section 10.19. References and Titles. All references in this Agreement
to Exhibits, Schedules, articles, sections, subsections and other subdivisions
refer to the Exhibits, Schedules, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided otherwise. Titles
appearing at the beginning of any subdivisions are for convenience only and do
not constitute any part of such subdivisions and shall be disregarded in
construing the language contained in such subdivisions. The words "this
Agreement", "this instrument", "herein", "hereof", "hereby", "hereunder" and
words of similar import refer to this Agreement as a whole and not to any
particular subdivision unless expressly so limited. The phrases "this section"
and "this subsection" and similar phrases refer only to the sections or
subsections hereof in which such phrases occur. The word "or" is not exclusive,
and the word "including" (in its various forms) means "including without
limitation". Pronouns in masculine, feminine and neuter genders shall be
construed to include any other gender, and words in the singular form shall be
construed to include the plural and vice versa, unless the context otherwise
requires.
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Section 10.20. Calculations and Determinations. All calculations under
the Canadian Loan Documents of interest chargeable with respect to Eurodollar
Loans and of fees (excluding stamping fees on Bankers' Acceptances) shall be
made on the basis of actual days elapsed (including the first day but excluding
the last) and a year of 360 days. All calculations with respect to Bankers'
Acceptances shall be made on the basis of actual days elapsed (including the
first day but excluding the last) and a year of 365 days. All other calculations
of interest made under the Canadian Loan Documents shall be made on the basis of
actual days elapsed (including the first day but excluding the last) and a year
of 365 or 366 days, as appropriate. Each determination by a Lender Party of
amounts to be paid under Article III or any other matters which are to be
determined hereunder by a Lender Party (such as any US Dollar Eurodollar Rate,
Canadian Dollar Eurodollar Rate, Adjusted US Dollar Eurodollar Rate, Adjusted
Canadian Dollar Eurodollar Rate, Business Day, Interest Period, or Reserve
Requirement) shall, in the absence of manifest error, be conclusive and binding.
Unless otherwise expressly provided herein or unless Required Lenders otherwise
consent all financial statements and reports furnished to any Lender Party
hereunder shall be prepared and all financial computations and determinations
pursuant hereto shall be made in accordance with US GAAP.
Section 10.21. Construction of Indemnities and Releases. All
indemnification and release provisions of this Agreement shall be construed
broadly (and not narrowly) in favor of the Persons receiving indemnification
from or being released.
Section 10.22. Separate Obligations. All obligations of Northstar Energy
and Devon Canada under this Agreement and the other Canadian Loan Documents are
separate and individual obligations of Northstar Energy and Devon Canada,
respectively, and Northstar Energy shall not have any liabilities in respect of
Canadian Advances made by the Lenders to Devon Canada nor shall Devon Canada
have any liabilities in respect of Canadian Advances made to Northstar Energy.
Section 10.23. Termination of Existing Canadian Agreement. Upon the
payment in full of all outstanding indebtedness owing under the Existing
Canadian Agreement, the Existing Canadian Agreement and the other loan documents
executed pursuant thereto shall be terminated and the parties thereto shall have
no further obligations or liabilities, covenants, or representations thereunder;
provided, however, the indemnification obligations provided in the Existing
Canadian Agreement shall not be terminated and shall survive the termination of
the Existing Canadian Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement is executed as of the date first
written above.
NORTHSTAR ENERGY CORPORATION
Canadian Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President - Finance
Address:
▇▇▇▇, ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: Vice President - Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
DEVON ENERGY CANADA CORPORATION
Canadian Borrower
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President - Finance
Address:
▇▇▇▇, ▇▇▇-▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
Attention: Vice President - Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇
▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Administrative Agent,
Canadian LC Issuer and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
72
BANK ONE CANADA
Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: First Vice President
73
THE CHASE MANHATTAN BANK
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
74
UMB BANK
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Community Bank President
75
FIRST UNION NATIONAL BANK
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
76
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇
Title: Associate
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Lender
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Account Manager
79
SUNTRUST BANK, ATLANTA
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Banking Officer
80
▇.▇. ▇▇▇▇▇▇ CANADA
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title:
81
CITIBANK CANADA
Lender
By: /s/ K. ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: K. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
82
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
83
CANADIAN IMPERIAL BANK OF
COMMERCE
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
84
ABN AMRO BANK CANADA
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BRANCH
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
86
THE FUJI BANK, LIMITED
Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President & Manager
87
CREDIT LYONNAIS
Lender
By: /s/ PHILLIPPE SOUSTRA
--------------------------------------
Name: Phillippe Soustra
Title: Senior Vice President
88
BANK OF TOKYO - MITSUBISHI
(CANADA)
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
89
ANNEX I
DEFINED TERMS
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any assets acquired by such specified Person, and any refinancing of
the foregoing indebtedness on similar terms, taking into account current market
conditions.
"Adjusted Canadian Dollar Eurodollar Rate" means, for any Canadian Dollar
Eurodollar Loan for any Eurodollar Interest Period therefor, the per annum rate
equal to the sum of (a) the Applicable Margin plus (b) the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
Canadian Agent to be equal to the quotient obtained by dividing (i) the Canadian
Dollar Eurodollar Rate for such Canadian Dollar Eurodollar Loan for such
Eurodollar Interest Period by (ii) 1 minus the Reserve Requirement for such
Canadian Dollar Eurodollar Loan for such Interest Period. The Adjusted Canadian
Dollar Eurodollar Rate for any Canadian Dollar Eurodollar Loan shall change
whenever the Applicable Margin or the Reserve Requirement changes. No Adjusted
Canadian Dollar Eurodollar Rate charged by any Person shall ever exceed the
Highest Lawful Rate.
"Adjusted US Dollar Eurodollar Rate" means, for any US Dollar Eurodollar
Loan for any Eurodollar Interest Period therefor, the per annum rate equal to
the sum of (a) the Applicable Margin plus (b) the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined by US Agent to be
equal to the quotient obtained by dividing (i) the US Dollar Eurodollar Rate for
such US Dollar Eurodollar Loan for such Eurodollar Interest Period by (ii) 1
minus the Reserve Requirement for such US Dollar Eurodollar Loan for such
Interest Period. The Adjusted US Dollar Eurodollar Rate for any US Dollar
Eurodollar Loan shall change whenever the Applicable Margin or the Reserve
Requirement changes. No Adjusted US Dollar Eurodollar Rate charged by any Person
shall ever exceed the Highest Lawful Rate.
"Affiliate" means, as to any Person, each other Person that directly or
indirectly (through one or more intermediaries or otherwise) controls, is
controlled by, or is under common control with, such Person. A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 20% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing general
partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise.
90
"Agent-Related Persons" means the US Agent (including Bank of America in
its capacity as US LC Issuer and US Swing Lender) and its Affiliates, the
Canadian Agent (including Bank of America Canada in its capacity as Canadian LC
Issuer and Canadian Swing Lender) and its Affiliates, the Arranger, any
successors to US Agent or Canadian Agent appointed in accordance with the Loan
Documents, and the officers, directors, employees, agents and attorneys-in-fact
of such Persons.
"Applicable Currency" means (i) when used with respect to any US Loan or
US LC Obligations, US Dollars, and (ii) when used with respect to any Canadian
Prime Rate Loan, any Canadian Dollar Eurodollar Loan or any Bankers' Acceptance,
Canadian Dollars, and (iii) when used with respect to any Canadian Base Rate
Loan or an US Dollar Eurodollar Loan made under the Canadian Agreement, US
Dollars.
"Applicable Lending Office" means, for each Lender and for each Type of
Loan, the "Lending Office" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on Annex II hereof or such other office of such
Lender (or an Affiliate of such Lender) as such Lender may from time to time
specify to US Agent, Canadian Agent, and Borrowers by written notice in
accordance with the terms hereof as the office by which its Loans of such Type
are to be made and maintained.
"Applicable Margin" means
(a) when used in the Canadian Agreement on any date and when used in
the US Agreement, except with respect to any Tranche B Loan, on
any date, the number of Basis Points per annum set forth below
based on the Applicable Rating Level on such date:
=================================================================
Applicable Applicable
Rating Level Margin
-----------------------------------------------------------------
Level I 24.0
-----------------------------------------------------------------
Level II 35.0
-----------------------------------------------------------------
Level III 45.0
-----------------------------------------------------------------
Level IV 67.5
-----------------------------------------------------------------
Level V 75.0
=================================================================
(b) when used with respect to any Tranche B Loan on any date, the
number of Basis Points per annum set forth below based on the
Applicable Rating Level on such date:
2
91
=================================================================
Applicable Applicable
Rating Level Margin
-----------------------------------------------------------------
Level I 26.0
-----------------------------------------------------------------
Level II 37.5
-----------------------------------------------------------------
Level III 47.5
-----------------------------------------------------------------
Level IV 70.0
-----------------------------------------------------------------
Level V 77.5
=================================================================
Changes in the Applicable Margin will occur automatically without prior notice
as changes in the Applicable Rating Level occur. US Agent will give notice
promptly to Borrowers and the Lenders of changes in the Applicable Margin.
"Applicable Rating Level" means for any day, the highest Rating Level (as
such term is defined below in this paragraph) issued by S&P or ▇▇▇▇▇'▇
(collectively, in this definition called the "Designated Rating Agencies"). As
used in this definition, (i) the term "Rating Level" means for any day with
respect to any of the Designated Rating Agencies, the rating level described
below (or its then equivalent) applicable on such day, issued by such Designated
Rating Agency, from time to time, with respect to US Borrower's Long-Term Debt
or if such rating is unavailable, equivalents thereof, including counterparty
ratings, implied ratings and corporate ratings; (ii) "US Borrower's Long-Term
Debt" means senior, unsecured, non-credit enhanced long-term indebtedness for
borrowed money of US Borrower, and (iii) "$" means a rating equal to or more
favorable than and "<" means a rating less favorable than.
=================================================================
Rating Level S&P ▇▇▇▇▇'▇
-----------------------------------------------------------------
Level I $A- $A3
-----------------------------------------------------------------
Level II BBB+ Baa1
-----------------------------------------------------------------
Level III BBB Baa2
-----------------------------------------------------------------
Level IV BBB- Baa3
-----------------------------------------------------------------
Level V