EXHIBIT 4.5
FINAL VERSION
NORSKE ▇▇▇▇ CANADA LIMITED ET AL
AND
TD SECURITIES
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. AND
RBC DOMINION SECURITIES
AS ARRANGERS
AND
THE LENDERS FROM TIME TO TIME
PARTY TO THIS AGREEMENT
AND
THE TORONTO-DOMINION BANK
AS ADMINISTRATION AGENT
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. AND
RBC DOMINION SECURITIES
AS SYNDICATION AGENTS
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CDN. $700,000,000 CREDIT FACILITIES
CREDIT AGREEMENT
DATED AS OF 14 AUGUST 2001
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▇▇▇▇▇▇ ▇▇▇▇▇▇ GERVAIS LLP
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THIS CREDIT AGREEMENT is made as of 14 August ▇▇▇▇
▇ ▇ ▇ ▇ ▇ ▇ ▇:
NORSKE ▇▇▇▇ CANADA LIMITED, NORSKE ▇▇▇▇ CANADA FINANCE
LIMITED AND THE OTHER RESTRICTED PARTIES FROM TIME TO TIME
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TD SECURITIES
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. AND
RBC DOMINION SECURITIES
(collectively, the "Arrangers")
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THE LENDERS LISTED ON SCHEDULE E
TO THIS AGREEMENT
(the "Lenders")
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THE TORONTO-DOMINION BANK
in its capacity as Administration Agent
(the "Agent")
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▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. AND
RBC DOMINION SECURITIES
in their capacity as Syndication Agents
(the "Syndication Agents")
RECITALS:
A. Norske ▇▇▇▇ Canada Limited ("NSCL") has requested the Arrangers to arrange
senior secured credit facilities of up to a maximum aggregate amount of Cdn.
$700,000,000 to be used to (i) finance the general corporate purposes of the
Restricted Parties (ii) assist in financing the acquisition of Pacifica, (iii)
assist in refinancing the bank debt of Pacifica, (iv) assist in funding a
special distribution by NSCL of approximately $1,490,000,000 and (v) assist in
funding fees and expenses relating to the acquisition, refinancing and special
distribution.
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B. The Lenders have each agreed to provide their respective commitments
to NSCL, subject to the terms and conditions of this Agreement.
C. The parties are entering into this Agreement to provide for the
terms of the credits.
THEREFORE, for value received, and intending to be legally bound by
this Agreement, the parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 DEFINED TERMS
In this Agreement, unless something in the subject matter or context
is inconsistent therewith:
1.1.1 "ACCEPTING LENDER" has the meaning defined in Section 2.4.3.
1.1.2 "ACQUISITION" means the acquisition of all of the then issued and
outstanding Capital Stock of Pacifica by NSCL in accordance with the
Pacifica Arrangement.
1.1.3 "ADVANCE" means an availment of a Credit by the Borrower by way of
Prime Rate Advance, Base Rate Advance, US Prime Rate Advance,
acceptance of Bankers' Acceptances, L/C or LIBOR Advance, deemed
Advances and conversions, renewals and rollovers of existing
Advances, and any reference relating to the amount of Advances shall
mean the sum of all outstanding Prime Rate Advances, Base Rate
Advances, US Prime Rate Advances and LIBOR Advances, plus the face
amount of all outstanding Bankers' Acceptances and L/Cs.
1.1.4 "AFFILIATED FUND" means (a) with respect to any Lender, any person
that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a
Lender or an affiliate of that Lender, and (b) with respect to any
Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and
similar extensions of credit and is managed by the same investment
advisor as that Lender or by an affiliate of that investment
advisor.
1.1.5 "AGENT" means TD in its role as administration agent for the
Lenders, and any successor administration agent appointed in
accordance with this Agreement.
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1.1.6 "AGREEMENT", "HEREOF", "HEREIN", "HERETO", "HEREUNDER" or similar
expressions mean this Agreement and any Schedules hereto, as
amended, supplemented, restated and replaced from time to time.
1.1.7 "APPLICABLE FEE RATE" means, on any day, in respect of any Advance
by way of Bankers' Acceptance or L/C, as the case may be, the
applicable rate (expressed as a percentage per annum) set forth
below, and "APPLICABLE MARGIN" means, on any day, with respect to
any Prime Rate Advance, Base Rate Advance, US Prime Rate Advance or
LIBOR Advance, the applicable margin (expressed as a percentage per
annum) set forth below, in each case based upon the Reference Debt
Ratings on that day.
For the Operating Credit and Term Credit A:
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▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ 5 Level 6
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▇▇▇▇▇'▇ Baa1 or ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ < Ba2
above
S&P BBB+ or BBB BBB- BB+ BB < BB
above
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Margin for 0 0.125% 0.25% 1.25% 1.625% 2.25%
Prime Rate
Advances/ Base
Rate Advances
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Margin for 1.00% 1.125% 1.25% 2.25% 2.625% 3.25%
LIBO Rate
Advances
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Rate for 1.00% 1.125% 1.25% 2.25% 2.625% 3.25%
Bankers'
Acceptance Fee/
L/C Fee
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For Term Credit B:
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▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
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▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇ ▇▇▇ < Ba2
S&P >BB+ BB+ BB < BB
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Margin for US Prime 1.50% 1.75% 2.00% 2.25%
Rate Advances
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▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇
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Margin for 2.50% 2.75% 3.00% 3.25%
LIBO Rate Advances
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For the period from the date of the first Advance under this
Agreement to and including 28 February 2002, the Applicable Fee Rate
and Applicable Margin shall be based on ▇▇▇▇▇ ▇ for the Operating
Credit and Term Credit A and Level 2 for Term Credit B.
For purposes hereof, (i) if the ratings established (or deemed to
have been established, as provided in clause (ii) below) by ▇▇▇▇▇'▇
and S&P fall within different Levels as set out above, the
Applicable Fee Rate and Applicable Margin will be the higher of the
alternative Applicable Fee Rates and Applicable Margins, (ii) if at
any time there is only one of ▇▇▇▇▇'▇ and S& P which has in effect a
Reference Debt Rating (other than (a) because such ratings agency is
no longer in the business of rating corporate debt obligations, (b)
as a result of a change in the rating system of ▇▇▇▇▇'▇ or S&P or
(c) for any other reason reasonably determined by the Agent to be
outside of the control of and unrelated to NSCL), then the
Applicable Fee Rate and Applicable Margin shall be determined as if
each rating agency had established a Reference Debt Rating in Level
6 with respect to the Operating Credit and Term Credit A and Level 4
with respect to Term Credit B and (iii) if any rating established
(or deemed to have been established, as provided in clause (ii)
above) by ▇▇▇▇▇'▇ or S&P is changed (other than as a result of a
change in the rating system of ▇▇▇▇▇'▇ or S&P), the change shall be
effective as of the date on which it is first publicly announced by
the applicable rating agency. Each change in the Applicable Fee Rate
and Applicable Margin shall apply during the period commencing on
the effective date of such change and ending on the date immediately
preceding the effective date of the next such change, on which date
the Borrower shall pay any additional amount attributable to a
higher Applicable Fee Rate with respect to a Bankers' Acceptance or
an L/C outstanding on that date for the remaining term of the
Bankers' Acceptance or L/C, or the Lenders shall remit to the Agent,
who shall refund to the Borrower, any amount attributable to a lower
Applicable Fee Rate. If at any time only one of ▇▇▇▇▇'▇ and S&P has
in effect a Reference Debt Rating (x) because the rating system of
▇▇▇▇▇'▇ or S&P has changed, (y) because such rating agency has
ceased to be in the business of rating corporate debt obligations,
or (z) for any other reason reasonably determined by the Agent to be
outside of the control of and unrelated to NSCL, NSCL and the
Lenders (acting through the Agent) shall negotiate in good faith to
amend the references to specific ratings in this definition to
reflect such changed rating system or the non-availability of
ratings from such rating agency and, pending the
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effectiveness of any such amendment, the Applicable Fee Rate and
Applicable Margin shall be determined by reference to the Level most
recently in effect.
1.1.8 "ARRANGERS" means, collectively, TD Securities, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
and RBC Dominion Securities.
1.1.9 "ASSIGNMENT AGREEMENT" means an agreement in the form of Schedule D
to this Agreement.
1.1.10 "BA DISCOUNT PROCEEDS" means, in respect of any Bankers' Acceptance,
an amount calculated on the applicable Drawdown Date which is
(rounded to the nearest full cent, with one-half of one cent being
rounded up) equal to the face amount of such Bankers' Acceptance
multiplied by the price, where the price is calculated by dividing
one by the sum of one plus the product of (i) the BA Discount Rate
applicable thereto expressed as a decimal fraction multiplied by
(ii) a fraction, the numerator of which is the term of such Bankers'
Acceptance and the denominator of which is 365, which calculated
price will be rounded to the nearest multiple of 0.001%.
1.1.11 "BA DISCOUNT RATE" means, (a) with respect to any Bankers'
Acceptance accepted by a Lender named on Schedule I to the BANK ACT
(Canada), the average rate that appears on the Reuters Screen CDOR
Page at or about 10:00 a.m. (Toronto time) on the applicable
Drawdown Date, for bankers' acceptances having an identical maturity
date to the maturity date of such Bankers' Acceptance, and (b) with
respect to any Bankers' Acceptance accepted by any other Lender, the
rate determined established in accordance with (a) above plus 0.07%
per annum.
1.1.12 "BA EQUIVALENT LOAN" has the meaning defined in Section 8.15.5.
1.1.13 "BANKERS' ACCEPTANCE" means a depository ▇▇▇▇ as defined in the
DEPOSITORY BILLS AND NOTES ACT (Canada) in Canadian Dollars that is
in the form of an order signed by the Borrower and accepted by a
Lender pursuant to this Agreement or, for Lenders not participating
in clearing services contemplated in that Act, a draft or ▇▇▇▇ of
exchange in Canadian Dollars that is drawn by the Borrower and
accepted by a Lender pursuant to this Agreement. Orders that become
depository bills, drafts and bills of exchange are sometimes
collectively referred to in this Agreement as "orders." Any
depository ▇▇▇▇ may be made payable to "CDS & Co." and deposited
with the The Canadian Depository for Securities Limited.
1.1.14 "BANKERS' ACCEPTANCE FEE" means the amount calculated by multiplying
the face amount of each Bankers' Acceptance by the rate for the
Bankers' Acceptance Fee specified in Sections 2.5 and 3.5, and then
multiplying the result by a fraction, the
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numerator of which is the duration of its term on the basis of the
actual number of days to elapse from and including the date of
acceptance of a Bankers Acceptance by the Lender up to but excluding
the maturity date of the Bankers' Acceptance and the denominator of
which is 365.
1.1.15 "BASE RATE" means, on any day, the greater of:
(a) the annual rate of interest (expressed as a percentage per
annum on the basis of a 365 day year) announced by TD on that
day as its reference rate for commercial loans made in Canada
in US Dollars; and
(b) the Federal Funds Effective Rate plus 1% per annum.
1.1.16 "BASE RATE ADVANCE" means an Advance in US Dollars bearing interest
based on the Base Rate and includes deemed Base Rate Advances
provided for in this Agreement.
1.1.17 "BORROWER" means Norske ▇▇▇▇ Canada Finance Limited, a corporation
governed by the COMPANY ACT (British Columbia).
1.1.18 "BRANCH OF ACCOUNT" means the Agency Account, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or, for Term Credit B, the
agency account designated by the US Agent in Houston, Texas.
1.1.19 "BRIDGE LOAN" means a senior interim loan in the amount of up to US
$200,000,000 arranged for NSCL by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Canada Inc.,
RBC and TD under a letter agreement dated 23 July 2001, which will
be advanced if the NSCL Notes have not been issued at the date of
completion of the Acquisition or to the extent that the gross
proceeds of the NSCL Notes are less than US $200,000,000.
1.1.20 "BUSINESS DAY" means a day of the year, other than Saturday or
Sunday, on which (a) the Agent is open for business at its executive
offices in ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at its main branch in Vancouver,
British Columbia and at its principal offices in New York, New York
and Houston, Texas (or in other locations specified by any successor
to TD as Agent) and (b) in respect of notices, determinations,
payments or Advances relating to LIBOR Advances, the Agent is open
for business at its principal offices in London, England.
Notwithstanding the foregoing, if the Agent will be open in some
locations referred to above and closed in others on a particular
day, and the Agent in consultation with NSCL determines that the
closing on that day will not adversely affect completion of relevant
transactions in accordance with customary banking market and trading
practices,
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the Agent may, on reasonable notice to NSCL and the Lenders, specify
the particular day to be a Business Day.
1.1.21 "CANADIAN DOLLARS", "CDN. DOLLARS", "CDN. $" and "$" mean lawful
money of Canada.
1.1.22 "CAPITAL STOCK" means, with respect to any person, any and all
present and future shares, partnership or other interests,
participations or other equivalent rights in the person's capital,
however designated and whether voting or non-voting.
1.1.23 "COLLATERAL" means cash, a bank draft or a letter of credit issued
by a Canadian chartered bank, all in a form satisfactory to the
Lenders, acting reasonably.
1.1.24 "COMMITMENT" means in respect of each Lender from time to time, the
commitment to make Advances to the Borrower in the Lender's
Proportionate Share of the maximum amount of any Credit as set out
on Schedule E and, where the context requires, the maximum amount of
Advances which the Lender has made or committed to make.
1.1.25 "COMPLIANCE CERTIFICATE" means a certificate in the form of
Schedule C.
1.1.26 "CONSOLIDATED NET TANGIBLE ASSETS" means the sum of the net book
value of the assets of the Restricted Parties less, without
duplication, the sum of (a) the net book value of the Restricted
Parties' goodwill, trademarks, copyrights, patents, trade names,
organization expense, treasury stock, deferred charges, unamortized
debt discount expense and other similar intangible assets and (b)
the net book value of the Restricted Parties' liabilities (including
deferred taxes but excluding Funded Debt) and minority interests.
1.1.27 "CONSTATING DOCUMENTS" means, with respect to any Restricted Party,
its articles or certificate of incorporation, amendment,
amalgamation or continuance, memorandum of association, by-laws,
partnership agreement, limited liability company agreement or other
similar document, and all unanimous shareholder agreements, other
shareholder agreements, voting trust agreements and similar
arrangements applicable to the Restricted Party's Capital Stock, all
as amended from time to time.
1.1.28 "CONTRACTS" means agreements, franchises, leases, easements,
servitudes, privileges and other rights, other than Permits.
1.1.29 "CONTRIBUTING LENDER" shall have the meaning defined in Section
12.3.2.
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1.1.30 "CREDITS" means the Operating Credit, Term Credit A and Term Credit
B, and "CREDIT" means any of them.
1.1.31 "CREDIT DOCUMENTS" means this Agreement, the Security and all other
documents relating to the Credits, or any of them.
1.1.32 "DEBT" means, with respect to any person, without duplication and
without regard to any interest component thereof (whether actual or
imputed) that is not due and payable, the aggregate of the following
amounts, each calculated in accordance with GAAP unless the context
otherwise requires:
(a) all obligations (including, without limitation, by way of
overdraft and drafts or orders accepted representing
extensions of credit) that would be considered to be
indebtedness for borrowed money, and all obligations (whether
or not with respect to the borrowing of money) that are
evidenced by bonds, debentures, notes or other similar
instruments;
(b) the BA Discount Proceeds of all outstanding Bankers'
Acceptances, less the Bankers' Acceptance Fees in respect
thereof, and the equivalent amounts in respect of any similar
instruments not issued under this Agreement;
(c) all liabilities upon which interest charges are customarily
paid by that person;
(d) any Capital Stock of that person (or of any Subsidiary of that
person that is not held by that person or by a Subsidiary of
that person that is wholly owned, directly or indirectly)
which Capital Stock, by its terms (or by the terms of any
security into which it is convertible or for which it is
exchangeable at the option of the holder), or upon the
happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in
part, for cash or securities constituting Debt;
(e) all capital lease obligations, synthetic lease obligations,
obligations under sale and leaseback transactions and purchase
money obligations;
(f) all obligations for the deferred purchase price of Property or
services acquired by such person or any predecessor and all
obligations of such person under any conditional sale or other
title retention agreement with respect to any Property;
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(g) all obligations secured by any Encumbrance upon or in any
Property owned by such person whether or not such person has
assumed or become liable for the payment of such obligations;
(h) the Market Value of all Swaps in respect of which the Market
Value is negative from that person's perspective (that is, the
person is "out of the money") less, in the case of any such
Swaps entered into with a Lender, the Market Value of all
Swaps with the same Lender in respect of which the Market
Value is positive (up to the Market Value of the Swaps with a
negative Market Value);
(i) the amount of all contingent liabilities in respect of L/Cs
and other letters of credit and letters of guarantee;
(j) the amount of all contingent liabilities in respect of
performance bonds and surety bonds, and any other guarantee or
other contingent liability of any part or all of an obligation
of a person other than a Restricted Party, in each case only
to the extent that the guarantee or other contingent liability
is required by GAAP to be treated as a liability on a balance
sheet of the guarantor or person contingently liable; and
(k) the amount of the contingent liability under any guarantee
(other than by endorsement of negotiable instruments for
collection or deposit in the ordinary course of business) in
any manner of any part or all of an obligation of another
person of the type included in any of the other items in this
definition;
provided that trade payables and accrued liabilities that are
current liabilities incurred in the ordinary course of business do
not constitute Debt.
1.1.33 "DECLINING LENDER" has the meaning defined in Section 2.4.1.
1.1.34 "DEFAULTING LENDER" has the meaning defined in Section 12.3.2.
1.1.35 "DESIGNATED ACCOUNT" means, in respect of any Advance, the account
or accounts maintained by the Borrower at a branch of RBC in
Vancouver, British Columbia that the Borrower designates in its
notice requesting an Advance.
1.1.36 "DRAWDOWN DATE" means the date, which shall be a Business Day, of
any Advance.
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1.1.37 "EBITDA" means, for any relevant period, an amount equal to NSCL's
net income or net loss for the period, calculated on a consolidated
basis;
(a) plus, amounts deducted in calculating net income or net loss
in respect of depreciation and amortization;
(b) plus, Total Interest Expense;
(c) plus, upfront fees paid to the Agent, Arrangers or Lenders in
connection with this Agreement;
(d) plus, amounts deducted in calculating net income or net loss
in respect of income taxes (but not capital taxes except those
that are considered by GAAP to be income taxes), whether or
not deferred;
(e) minus, any non-cash items increasing consolidated net income
for such period;
(f) plus, any non-cash items decreasing consolidated net income
for such period;
(g) plus, unusual non-cash charges which require an accrual of, or
a reserve for, cash charges for any future period;
(h) minus, all cash payments during such period relating to
non-cash charges which were added back in determining EBITDA
in any prior period;
and excluding:
(i) any gain or loss attributable to the sale, conversion,
abandonment or other disposition of Property, other than sales
of inventory in the ordinary course of business; and
(j) gains resulting from the write-up of Property and losses
resulting from the write-down of Property (other than
allowances for doubtful accounts receivable and any inventory
adjustments); and
(k) any gain or loss on the repurchase or redemption of any
securities (including in connection with the early retirement
or defeasance of any Debt); and
(l) any foreign exchange gain or loss (other than foreign exchange
gains or losses in respect of accounts receivable and accounts
payable and ▇▇▇▇▇▇ or forward
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exchange contracts in respect of revenues, in each case that
are realized in the ordinary course of business); and
(m) any income or loss attributable to discontinued operations;
and
(n) any other extraordinary items; and
(o) net income or net loss and other amounts specified in the
other items of this definition that are attributable to
persons other than Restricted Parties or to minority interests
in Restricted Parties;
all of which shall be calculated in accordance with GAAP unless
otherwise expressly described. If NSCL has established a new
Restricted Party or has disposed of a Restricted Party or material
Property out of the ordinary course of business during the relevant
period, EBITDA shall be calculated in accordance with GAAP (or
otherwise on a basis satisfactory to the Agent, acting reasonably),
as if the new Restricted Party had been a Restricted Party during
the entire period or the disposition had occurred at the beginning
of the period.
1.1.38 "ENCUMBRANCE" means any mortgage, debenture, pledge, hypothec,
deposit, lien, charge, assignment by way of security, consignment,
capital lease, hypothecation, security interest or other security
agreement, trust or arrangement having the effect of security for
the payment of any debt, liability or obligation, or any other
adverse claim affecting Property, and "ENCUMBRANCES",
"ENCUMBRANCER", "ENCUMBER" and "ENCUMBERED" shall have corresponding
meanings.
1.1.39 "ENVIRONMENTAL LAWS" means all applicable Requirements of Law,
Permits and guidelines or requirements of any governmental body
(whether or not having the force of law, and including consent
decrees as to which any Restricted Party is a party or otherwise
subject, and administrative orders which may affect a Restricted
Party) relating to public health and safety, protection of the
environment, the release of Hazardous Materials or occupational
health and safety.
1.1.40 "EVENT OF DEFAULT" has the meaning defined in Section 11.1.
1.1.41 "EVENT OF FAILURE" has the meaning defined in Section 5.1.1.
1.1.42 "EXCHANGE RATE" means, on any day, for the purpose of calculations
under this Agreement, the amount of Canadian Dollars into which US
Dollars may be converted, or VICE VERSA, using the Agent's mid rate
(i.e. the average of the Agent's spot buying and selling rates) for
converting the first currency to the other currency at the relevant
time on that day. If the Exchange Rate is being determined at any
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time in respect of a previous day, the noon spot rate of the Bank of
Canada on that previous day shall be used instead of the Agent's mid
rate.
1.1.43 "EXCLUDED TAXES" means any Taxes now or hereafter imposed, levied,
collected, withheld or assessed on a Lender by Canada or any other
jurisdiction in which that Lender is subject to Tax as a result of
the Lender (i) carrying on a trade or business in such jurisdiction
or being deemed to do so, or having a permanent establishment in
such jurisdiction; (ii) being organized under the laws of such
jurisdiction; (iii) being resident or deemed to be resident in such
jurisdiction, (iv) not dealing at arm's length with the Restricted
Parties or any other Lender or (v) being connected with the
jurisdiction imposing such Taxes otherwise than by the mere
advancement of credit hereunder, the receipt of payments under the
Credit Documents or the enforcement of rights under the Credit
Documents; but does not include any sales, goods or services Tax
payable under the laws of any such jurisdiction with respect to any
goods or services made available by a Lender to the Borrower under
this Agreement or any withholding tax.
1.1.44 "EXISTING MAJOR SHAREHOLDER" means the largest shareholder of NSCL
as disclosed on page 27 of NSCL's notice of extraordinary general
meeting and management information circular dated 25 April 2001
relating to the meeting to approve the Special Distribution.
1.1.45 "FEDERAL FUNDS EFFECTIVE RATE" means for any period, a fluctuating
interest rate per annum equal, for each day during such period, to
the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
Federal Funds brokers as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, for any day on which that rate
is not published for that day by the Federal Reserve Bank of New
York, the average of the quotations for that day for such
transactions received by the Agent from three Federal Funds brokers
of recognized standing.
1.1.46 "FEE AGREEMENT" means the agency fee agreement between the Borrower
and the Agent dated as of 14 August 2001, as amended, supplemented,
restated and replaced from time to time.
1.1.47 "FUND" means any Person that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business.
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1.1.48 "FUNDED DEBT" means all Debt of NSCL on a consolidated basis other
than Debt referred to in item (d) of the definition of Debt and Debt
in respect of which no interest, fee or other compensation is
charged and no Encumbrance is held.
1.1.49 "FUNDED DEBT RATIO" means at any time, the ratio calculated by
dividing NSCL's (a) Funded Debt by (b) the aggregate of its Funded
Debt plus its shareholders equity determined in accordance with GAAP
on a consolidated basis.
1.1.50 "GAAP" means Canadian generally accepted accounting principles,
including such principles recommended by the Canadian Institute of
Chartered Accountants as contained in the "CICA Handbook" as
amended, replaced or restated from time to time and, in the absence
of a specific recommendation contained in the "CICA Handbook,"
accounting principles generally accepted in practice in Canada.
1.1.51 "HAZARDOUS MATERIALS" means:
(a) any oil, flammable substances, explosives, radioactive
materials, hazardous wastes or substances, toxic wastes or
substances or any other wastes, contaminates, materials or
pollutants which:
(i) pose a hazard to any real property, or to persons on
or about any real property; or
(ii) cause any real property to be in violation of any
Requirement of Law;
(b) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment
which contain dielectric fluid containing levels of
polychlorinated biphenyls in excess of limits prescribed by
Requirements of Law, or radon gas;
(c) any chemical, material or substance defined as or included in
the definition of "dangerous goods", "deleterious substance",
"hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted
hazardous waste", "toxic substances", "waste" or words of
similar import under any Law, including the Canadian
Environmental Protection Act (Canada), Fisheries Act (Canada),
Transportation of Dangerous Goods Act (Canada), Canada Water
Act (Canada) and any applicable provincial legislation; and
(d) any other chemical, material or substance, exposure to which
is prohibited, limited or regulated by any governmental body
or which may or could pose
- 14 -
a hazard to the occupants of any real property or any other
person coming upon any real property or adjacent or
surrounding property;
and references to a "release" of Hazardous Materials include
spilling, leaking, pumping, pouring, emitting emptying, discharging,
injecting, escaping, leaching, disposing, dumping or other form of
release, or permitting any of the foregoing to occur.
1.1.52 "INTELLECTUAL PROPERTY" means patents, trademarks, service marks,
trade names, copyrights, trade secrets, industrial designs and other
similar rights.
1.1.53 "INTERBANK REFERENCE RATE" means, in respect of any currency, the
interest rate expressed as a percentage per annum which is
customarily used by the Agent when calculating interest due by it or
owing to it arising from correction of errors in transactions in
that currency between it and other chartered banks.
1.1.54 "INTERCREDITOR AGREEMENTS" means any intercreditor agreements that
may be entered into from time to time to provide for the terms of
subordination of any Debt in favour of the Obligations, or other
relationship between the Lenders and the holders of other Debt,
including, without limitation, any intercreditor agreements entered
into with the holders of Pacifica Notes, Bridge Loan, NSCL Notes,
Permitted Senior Indebtedness and Permitted Subordinated
Indebtedness, each as amended, supplemented, restated and replaced
from time to time.
1.1.55 "INTEREST COVERAGE RATIO" means, at any time, the ratio calculated
by dividing (a) EBITDA for NSCL's four most recently completed
fiscal quarters by (b) Total Interest Expense for that period. For
the purpose of calculating the Interest Coverage Ratio, NSCL's
EBITDA and Total Interest Expense shall be calculated on a PRO FORMA
basis acceptable to the Lenders, acting reasonably for the period
beginning 1 October 2000 and ending 30 September 2001. The PRO FORMA
calculation shall take into account the Special Distribution, the
Acquisition if it is completed by 31 August 2001, and all Debt
incurred or assumed in connection therewith.
1.1.56 "INTEREST PAYMENT DATE" means (in connection with Prime Rate
Advances, Base Rate Advances and US Prime Rate Advances) the first
day of each calendar month or if that is not a Business Day, the
Business Day next following.
1.1.57 "ISSUING BANK" means, with respect to Operating Credit 1, each
Lender designated by the Agent after consultation with NSCL that
issues L/Cs for and on behalf of the Lenders under a Credit and, for
the time being, means RBC and, with
- 15 -
respect to Operating Credit 2, means the Lender making Advances
under Operating Credit 2, which is RBC unless changed in accordance
with Section 2.1.1.
1.1.58 "L/C" means a standby letter of credit, letter of guarantee or
commercial letter of credit in a form satisfactory to the Issuing
Bank issued by the Issuing Bank at the request of the Borrower in
favour of a third party to secure the payment or performance of an
obligation of a Restricted Party to the third party.
1.1.59 "L/C FEE" means the amount calculated by multiplying the face amount
of each L/C by the rate for the L/C Fee specified in Section 2.5,
and then multiplying the result by a fraction, the numerator of
which is the duration of its term on the basis of the actual number
of days to elapse from and including the date of issuance of an L/C
by the Issuing Bank up to but excluding the expiry date of the L/C
and the denominator of which is 365.
1.1.60 "LENDERS" means each of the persons listed on Schedule E and other
lenders that agree from time to time to become Lenders in accordance
with Article XIII of this Agreement, including the Operating Credit
Lenders, the Term Credit A Lenders and the Term Credit B Lenders,
and "LENDER" means any one of the Lenders.
1.1.61 "LIBO RATE" means, for any LIBOR Period and LIBOR Advance, either:
(a) the rate of interest (expressed as an annual rate on the basis
of a 360 day year) determined by the Agent to be the
arithmetic mean (rounded up to the nearest 0.01%) of the
offered rates for deposits in US Dollars for a period equal to
the particular LIBOR Period, which rates appear on (A) the
Reuters screen LIBO page, or (B) if the Reuters screen LIBO
page is not readily available to the Agent, Page 3750 of the
Telerate screen, in either case as of 11:00 a.m. (London time)
on the second Business Day before the first day of that LIBOR
Period, or,
(b) if neither the Reuters screen LIBO page nor Page 3750 of
Telerate is readily available to the Agent for any reason, the
rate of interest determined by the Agent which is equal to the
simple average of the rates of interest (expressed as a rate
per annum on the basis of a year of 360 days and rounded up to
the nearest 0.01%) at which three of the five largest (as to
total assets) banks listed on Schedule I to the BANK ACT
(Canada) as selected by the Agent would be prepared to offer
leading banks in the London interbank market a deposit in US
Dollars for a period equal to the LIBOR Period in an amount
approximately equal to the relevant LIBOR Advance at or about
10:00 a.m. (Toronto time) on the second Business Day before
the first day of such Interest Period.
- 16 -
The LIBO Rate calculated as above shall be adjusted from day to day
for any Lender to whom the Eurocurrency Reserve Percentage applies
in respect of its LIBOR Advances under this Agreement by dividing
the LIBO Rate by a percentage equal to 100% minus the Eurocurrency
Reserve Percentage on that day. The Eurocurrency Reserve Percentage
is the percentage prescribed by the Board of Governors of the
Federal Reserve System of the United States (or any successor to its
functions) for determining the maximum reserve requirement
(including but not limited to any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal
Reserve System in New York, New York with deposits exceeding US $5
billion in respect of Eurocurrency Liabilities (as defined in
Regulation D of the Board of Governors of the Federal Reserve
System) or in respect of any other category of liabilities which
includes deposits by reference to which the interest rate on LIBOR
Advances is determined or any category of extensions of credit or
assets which includes loans by a non-United States office of any
bank to United States residents.
1.1.62 "LIBOR ADVANCE" means an advance in US Dollars bearing interest
based on the LIBO Rate.
1.1.63 "LIBOR PERIOD" means the period selected by the Borrower for a LIBOR
Advance or the period applicable to the LIBOR Advance under the
terms of this Agreement.
1.1.64 "MAJORITY LENDERS" means Lenders holding, in the aggregate, a
minimum of 66 2/3% of the outstanding amount of the Commitments.
1.1.65 "MARKET VALUE" means the amount, if any, that a person would be
required to pay to its counterparty in any Swap in order to
terminate the Swap as a result of the person being "out of the
money" on a ▇▇▇▇ to market valuation of the Swap and, without
limiting the foregoing, for any Swap governed by an ISDA Master
Agreement, means, on any day, the amount (whether positive or
negative) expressed in Canadian Dollars that is determined by a
Lender in good faith in accordance with its customary practices as
of the close of business on that day as though that day was an
"Early Termination Date" and the "Transaction" was a "Terminated
Transaction" in accordance with the payment measure provided for in
section 6(e)(i)(3) of the 1992 ISDA Master Agreement (Multicurrency
- Cross Border). "Early Termination Date," "Transaction" and
"Terminated Transaction" have the meanings defined in that ISDA
Master Agreement.
1.1.66 "MATERIAL ADVERSE CHANGE" means any one or more transactions, events
or conditions which, when taken together, have a material adverse
effect on (a) the ability of the Restricted Parties as a whole to
perform and discharge their
- 17 -
obligations under this Agreement or any Material Contract which is
listed in Part A of Schedule G or the Material Contracts taken as a
whole, (b) the Agent's or the Lenders' ability to enforce their
rights or remedies under any of the Credit Documents, or (c) the
financial condition, business or prospects of NSCL and its
Subsidiaries, taken as a whole. Notwithstanding the foregoing, if
the context requires, "Material Adverse Change" shall be interpreted
having reference only to such persons (other than all of the
Restricted Parties) as the context requires.
1.1.67 "MATERIAL CONTRACT" means any Contract:
(a) which is listed on Schedule G;
(b) to which is attached obligations on the part of the Restricted
Parties or which has an economic value to the Restricted
Parties in excess of $25,000,000 per annum; or
(c) to which a Restricted Party is a party that, if terminated,
would materially impair the ability of the Restricted Parties
as a whole to carry on business in the ordinary course or
would cause a Material Adverse Change.
1.1.68 "MATERIAL PERMIT" means any Permit issued to a Restricted Party
that, if terminated, would materially impair the ability of the
Restricted Parties as a whole to carry on business in the ordinary
course or would cause a Material Adverse Change.
1.1.69 "MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
1.1.70 "NON BA LENDER" has the meaning defined in Section 8.15.5.
1.1.71 "NEW LENDER" has the meaning defined in Section 2.4.4.
1.1.72 "NOTEHOLDERS" means the holders from time to time of the Pacifica
Notes and the NSCL Notes.
1.1.73 "NSCL" means Norske ▇▇▇▇ Canada Limited, a corporation governed by
the COMPANY ACT (British Columbia), which is expected to be
continued under the CANADA BUSINESS CORPORATIONS ACT if the
Acquisition is completed, and also means the corporation resulting
from the amalgamation under the CANADA BUSINESS CORPORATIONS ACT of
NSCL and Pacifica which will occur if the Acquisition is completed.
- 18 -
1.1.74 "NSCL NOTES" means senior notes to be issued by NSCL after the date
of this Agreement (the proceeds of which will only be released from
escrow if the Acquisition is completed on or before 31 August 2001)
to finance the Acquisition and/or refinance the Bridge Loan, or
which are issued in exchange for the Bridge Loan, in each case as
long as such notes are, in the reasonable opinion of the Agent, on
terms that are no more onerous to NSCL than the Pacifica Indenture
and shall mature no earlier than the Pacifica Notes. For greater
certainty, NSCL Notes includes any replacement notes issued after
registration under the SECURITIES ACT OF 1933 (United States) in
accordance with the terms of the NSCL Notes.
1.1.75 "OBLIGATIONS" means all obligations of the Borrower to the Lenders
under or in connection with this Agreement, including but not
limited to all debts and liabilities, present or future, direct or
indirect, absolute or contingent, matured or not, at any time owing
by the Borrower to the Lenders in any currency or remaining unpaid
by the Borrower to the Lenders in any currency under or in
connection with this Agreement, whether arising from dealings
between the Lenders and the Borrower or from any other dealings or
proceedings by which the Lenders may be or become in any manner
whatever creditors of the Borrower under or in connection with this
Agreement, and wherever incurred, and whether incurred by the
Borrower alone or with another or others under or in connection with
this Agreement, and whether as principal or surety, and all
interest, fees, legal and other costs, charges and expenses. In this
definition, "the Lenders" shall be interpreted as "the Lenders, or
any of them".
1.1.76 "OPERATING CREDIT" means, collectively, the revolving credit of up
to $220,000,000 or the US Dollar equivalent thereof (designated as
"OPERATING CREDIT 1") and the revolving credit of up to $30,000,000
or the US Dollar equivalent thereof (designated as "OPERATING CREDIT
2") which are established in favour of the Borrower by this
Agreement to assist in financing the general corporate requirements
of the Restricted Parties.
1.1.77 "OPERATING CREDIT LENDERS" means the Lenders who have provided
Commitments relating to the Operating Credit as more particularly
described in Schedule E.
1.1.78 "OTHER SECURED OBLIGATIONS" means the present and future debts,
liabilities and obligations to any Lender under or in connection
with (a) Swaps to exchange one of Canadian Dollars, US Dollars or
Japanese yen to another of those currencies, provided that in the
case of such Swaps that relate to Debt, such Swaps do not increase
the principal amount of Debt outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of
fees, indemnities or compensation payable thereunder, and (b) Swaps
to provide for the exchange
- 19 -
of floating interest rate obligations for fixed interest rate
obligations in an aggregate amount (net of offsetting transactions)
that does not exceed 75% of NSCL's consolidated floating rate Debt
at the time any such Swap is entered into.
1.1.79 "PACIFICA" means Pacifica Papers Inc., a corporation governed by the
CANADA BUSINESS CORPORATIONS ACT.
1.1.80 "PACIFICA ARRANGEMENT" means an arrangement agreement made on 25
March 2001 between NSCL and Pacifica with respect to the Acquisition
and the plan of arrangement described in that agreement.
1.1.81 "PACIFICA BANK DEBT" means indebtedness arising under the
Multi-Option Credit Facility made among Pacifica, Pacifica Power Co.
Ltd. and Pacifica Papers Limited Partnership, as borrower, Canadian
Imperial Bank of Commerce, as arranger and administrative agent, The
Bank of Nova Scotia, as documentation agent and Canadian Imperial
Bank of Commerce and other lenders dated 12 March 1999, as amended
by Amending Agreement dated 21 February 2000, Consent to
Restrictions and Assumption Agreement dated 30 January 2001 and
Consent to Sale and Amendment Agreement dated 31 January 2001.
1.1.82 "PACIFICA INDENTURE" means the trust indenture dated as of 12 March
1999 between Pacifica, certain of its Subsidiaries as guarantors and
Norwest Bank Minnesota, National Association, as Trustee, as amended
and supplemented by agreements dated 12 March 1999, 30 December 1999
and 31 January 2001 and otherwise as permitted by this Agreement.
1.1.83 "PACIFICA NOTES" means the 10% senior notes due 2009 issued by
Pacifica under the Pacifica Indenture.
1.1.84 "PENDING EVENT OF DEFAULT" means an event which, with giving of
notice, lapse of time, or both, or subject to any other condition
subsequent to such event, would constitute an Event of Default.
1.1.85 "PENSION PLAN" means (a) a "registered pension plan" (as that term
is defined in the INCOME TAX ACT (Canada)) which is subject to the
funding requirements of applicable pension benefits legislation in
any jurisdiction of Canada and is applicable to employees resident
in Canada of any Restricted Party, or (b) any pension benefit plan,
other post-retirement benefit plan or other similar arrangement
applicable to employees of any Restricted Party.
1.1.86 "PERMITS" means governmental licenses, authorizations, consents,
registrations, exemptions, permits and other approvals required by
law.
- 20 -
1.1.87 "PERMITTED ENCUMBRANCES" means, with respect to any person, the
following:
(a) Encumbrances for taxes, rates, assessments or other
governmental charges or levies not yet due, or for which
instalments have been paid based on reasonable estimates
pending final assessments, or if due, the validity of which is
being contested diligently and in good faith by appropriate
proceed ings by that person and the payment of which has been
secured by such arrangements (including Collateral) as the
Lenders may require;
(b) undetermined or inchoate Encumbrances, rights of distress and
charges incidental to current operations which have not at
such time been filed or exercised and of which none of the
Lenders has been given notice, or which relate to obligations
not due or payable or if due, the validity of which is being
contested diligently and in good faith by appropriate
proceedings by that person and the payment of which has been
secured by such arrangements (including Collateral) as the
Lenders may require;
(c) reservations, limitations, provisos and conditions expressed
in any original grants from the Crown or other grants of real
or immovable property, or interests therein, which do not
materially affect the use of the affected land for the purpose
for which it is used by that person;
(d) zoning, land use and building restrictions, by-laws,
regulations and ordinances of federal, provincial, municipal
and other governmental authorities, licenses, easements,
rights-of-way and rights in the nature of easements
(including, without limiting the generality of the foregoing,
licenses, easements, rights-of-way and rights in the nature of
easements for sidewalks, public ways, sewers, drains, gas,
steam and water mains or electric light and power, or
telephone and telegraph conduits, poles, wires and cables),
none of which will materially impair the use of the affected
land for the purpose for which it is used by that person;
(e) title defects, encroachments or irregularities which are of a
minor nature and which in the aggregate will not materially
impair the use of the affected property for the purpose for
which it is used by that person;
(f) the right reserved to or vested in any municipality or
governmental or other public authority by the terms of any
lease, license, franchise, grant or permit acquired by that
person or by any statutory provision to terminate any such
lease, license, franchise, grant or permit, or to require
annual or other payments as a condition to the continuance
thereof;
- 21 -
(g) the Encumbrance resulting from the deposit of cash or
securities in connection with contracts (other than for the
payment of Debt), tenders or expropriation proceedings, or to
secure workers' compensation, unemployment insurance, surety
or appeal bonds, costs of litigation when required by law,
liens and claims incidental to current construction,
mechanics', warehousemen's, carriers' and other similar liens,
and public, statutory and other like obligations incurred in
the ordinary course of business, up to a maximum at any time
of $10,000,000 for all Restricted Parties;
(h) security given to a public utility or any municipality or
governmental authority when required by such utility or
authority in connection with the operations of that person in
the ordinary course of its business, up to a maximum at any
time of $10,000,000 for all Restricted Parties;
(i) the Trustee Security, to the extent that it secures debentures
that have been issued under the trust deeds forming part of
the Trustee Security and pledged to secure the debts,
liabilities and obligations described in Section 6.2, and the
pledges of those debentures;
(j) the Security other than the Trustee Security;
(k) the Encumbrance created by a judgment of a court of competent
jurisdiction, as long as the judgment is being contested
diligently and in good faith by appropriate proceedings and
payment has been secured by such arrangements (including
Collateral) as the Lenders may require or the judgment is
being satisfied by that person and has not caused an Event of
Default;
(l) Encumbrances on Property and the proceeds thereof created or
assumed to finance the acquisition or improvement or secure
the unpaid purchase price thereof (including the principal
amount of any capital lease or Purchase Money Mortgage),
provided that the aggregate principal amount (or fair market
value of the Property Encumbered if no principal amount is
designated) in respect of all such Encumbrances entered into
by all Restricted Parties does not exceed 4% of Consolidated
Net Tangible Assets at any time;
(m) a pledge of preferred shares of ▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Pulp
Operations Ltd.. by Norske ▇▇▇▇ Pulp Operations Ltd. to secure
obligations of Norske ▇▇▇▇ Pulp Operations Ltd. in the amount
of $16,200,000 to ▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Pulp Operations Ltd.
for which recourse is limited to the pledged shares and which
is terminated on or before 31 October 2001;
- 22 -
(n) escrow arrangements and related Encumbrances in respect of the
proceeds of the NSCL Notes if they are issued before the date
of completion of the Acquisition to secure redemption of the
NSCL Notes if the Acquisition is not completed; and
(o) other Encumbrances expressly agreed to in writing by the
Majority Lenders.
1.1.88 "PERMITTED OBLIGATIONS" means the following:
(a) the Obligations;
(b) the Other Secured Obligations;
(c) debts, liabilities and obligations of any Restricted Party to
another Restricted Party;
(d) if the Acquisition is completed on or before 31 August 2001,
the Pacifica Notes, the Bridge Loan and the NSCL Notes;
(e) Permitted Senior Indebtedness;
(f) Permitted Subordinated Indebtedness;
(g) unsecured debts, liabilities and obligations of NSCL in
connection with an existing letter of credit issued for the
account of NSCL by Bank of Tokyo- Mitsubishi (Canada) to The
Bank of Tokyo-Mitsubishi Ltd., Kyobashi Branch, Tokyo, Japan
in the amount of 30,000,000 Japanese yen;
(h) other debts, liabilities and obligations secured by Permitted
Encumbrances;
(i) current accounts payable, accrued expenses and other similar
debts, liabilities and obligations incurred in the ordinary
course of business which are not for borrowed money;
(j) deferred taxes;
(k) obligations and liabilities incurred in the ordinary course of
business which do not constitute Debt;
(l) actuarially determined obligations in respect of Pension Plans;
- 23 -
(m) obligations arising from guarantees by one Restricted Party of
debts, liabilities and obligations of another Restricted Party
that are themselves Permitted Obligations; and
(n) other debts, liabilities and obligations expressly permitted
under this Agreement or expressly consented to by the Majority
Lenders in writing.
1.1.89 "PERMITTED SENIOR INDEBTEDNESS" means Debt of NSCL for borrowed
money that:
(a) except for Special Permitted Senior Indebtedness, has a stated
maturity later than 14 August 2007 and is unsecured;
(b) is on terms and conditions that, in the reasonable opinion of
the Majority Lenders, are no more restrictive to the
Restricted Parties than the terms of the Obligations
including, without limitation except for Special Permitted
Senior Indebtedness, the scheduled amortization of the Debt;
(c) is not incurred at a time that an Event of Default or Pending
Event of Default has occurred and is continuing or would, in
the opinion of the Majority Lenders, acting reasonably, based
on their review of PRO FORMA budgets and other information
that the Lenders may require from NSCL (all of which must be
in form and substance satisfactory to the Lenders), result
from the incurrence of the Debt; and
(d) if required by the Majority Lenders, is subject to the terms
of an Intercreditor Agreement entered into with the Agent in
form and substance satisfactory to the Majority Lenders,
acting reasonably.
1.1.90 "PERMITTED SUBORDINATED INDEBTEDNESS" means unsecured Debt of NSCL
for borrowed money that:
(a) has a stated maturity later than 14 August 2007 and does not
require any principal payments before maturity, provided that
voluntary prepayments shall be permitted with the prior
written consent of the Majority Lenders;
(b) is on terms and conditions including, without limitation,
financial covenants that, in the reasonable opinion of the
Majority Lenders, are less restrictive to the Restricted
Parties than the terms of the Obligations;
(c) contains no financial covenants except those which apply only
at the time of incurrence of Debt;
- 24 -
(d) is not incurred at a time that an Event of Default or Pending
Event of Default has occurred and is continuing or would, in
the opinion of the Majority Lenders, acting reasonably, based
on their review of PRO FORMA budgets and other information
that the Lenders may require from NSCL (all of which must be
in form and substance satisfactory to the Lenders), result
from the incurrence of the Debt;
(e) provides for a standstill period in respect of enforcement by
holders of the Debt of not less than 180 days following
default, provides for acceleration with reference to other
Debt of NSCL and any Subsidiaries of NSCL that are guarantors
only upon acceleration of that Debt rather than default under
the terms of that Debt, and does not require repayments upon
any dispositions of Property of the Restricted Parties;
(f) if required by the Majority Lenders, is subject to the terms
of an Intercreditor Agreement entered into with the Agent in
form and substance satisfactory to the Majority Lenders,
acting reasonably.
1.1.91 "PERSON" or "PERSON" means any individual, corporation, company,
partnership, unincorporated association, trust, joint venture,
estate or other judicial entity or any governmental body.
1.1.92 "PLEDGED SHARES" means the Capital Stock of the Restricted Parties
and other persons that is pledged as part of the Trustee Security
from time to time.
1.1.93 "PRIME RATE" means, on any day, the greater of:
(a) the annual rate of interest expressed as a percentage
per annum in effect on that day as TD's reference
rate for commercial loans made by it in Canada in
Canadian Dollars; and
(b) the average rate for 30 day Canadian Dollar bankers'
acceptances that appears on the Reuters Screen CDOR
Page at 10:00 a.m. Toronto time on that day, plus 1%
per annum.
1.1.94 "PRIME RATE ADVANCE" means an Advance in Canadian Dollars bearing
interest based on the Prime Rate and includes deemed Prime Rate
Advances provided for in this Agreement.
1.1.95 "PROPERTY" means, with respect to any person, any or all of its
undertaking, property and assets.
- 25 -
1.1.96 "PROPORTIONATE SHARE" means the percentage of the maximum amount of
the Credits which a Lender has agreed to advance to the Borrower, as
set out on Schedule E, which shall be amended by the Agent from time
to time as other persons become Lenders or the Proportionate Shares
of Lenders otherwise change.
1.1.97 "PURCHASE MONEY MORTGAGE" means any Encumbrance, including a capital
lease, created, issued or assumed by any Restricted Party to secure
indebtedness assumed by that person as part of, or issued or
incurred to provide funds to pay, and not exceeding 100% of, the
unpaid purchase price (including installation cost) or construction
cost of any Property, if the Encumbrance is limited to the Property
acquired and is created, issued or assumed substantially
concurrently with the acquisition of the Property or in connection
with the refinancing of an existing Purchase Money Mortgage, if the
principal amount has not increased and the Encumbrance continues to
be limited to that Property. Purchase Money Mortgage also includes
any other fixed charge over specific limited Property securing term
debt of a person existing at the time the person is acquired by a
Restricted Party or assumed by a Restricted Party in connection with
the acquisition of Property from the person, but not incurred in
connection with or in anticipation of the acquisition of the person
or Property.
1.1.98 "RBC" means Royal Bank of Canada, a bank to which the BANK ACT
(Canada) applies.
1.1.99 "REFERENCE DEBT RATING" means the public rating of the indebtedness
and liability of the Borrower to the Lenders under the Credits or if
either ▇▇▇▇▇'▇ or S&P has not established a rating for indebtedness
and liability under the Credits, the corporate credit or issuer
ratings of NSCL established by ▇▇▇▇▇'▇ or S&P, as the case may be,
shall apply.
1.1.100 "REGISTER" has the meaning defined in Section 13.2.3.
1.1.101 "REPLACEMENT CONTRACT" means any one or more Contracts (a) entered
into by a Restricted Party to replace a Material Contract that has
been terminated or in respect of which a declaration of
non-performance has been issued or similar step has been taken, (b)
which provide the Restricted Party with rights, benefits and value
substantially similar to and on terms and conditions not materially
less favourable than those contained in the Material Contract being
replaced and (c) which are entered into concurrently with or before
a termination, declaration or similar step arising from a breach by
or other event relating to a Restricted Party or within 30 days of a
termination, declaration or similar step arising from a breach by or
other event relating to a Person other than a Restricted Party. A
Replacement Contract shall be deemed to be a Material Contract and
shall be deemed to be
- 26 -
listed in Part A of Schedule G if the Material Contract that it
replaces was listed in Part A, and the Material Contract that is
replaced shall cease to be a Material Contract.
1.1.102 "REQUIREMENT OF LAW" means, as to any person, any law, treaty,
regulation, ordinance, decree, judgment, order or similar
requirement made or issued under sovereign or statutory authority
and applicable to or binding upon that person, or to which that
person or any of its Property is subject.
1.1.103 "RESTRICTED PARTIES" means NSCL, the Borrower, Norske ▇▇▇▇ Canada
Pulp Operations Limited, Elk Falls Pulp and Paper Limited, Norske
▇▇▇▇ Canada Sales Inc., Norske ▇▇▇▇ Canada Pulp Sales Inc., Norske
▇▇▇▇ Pulp Sales (Japan) Ltd., Norske ▇▇▇▇ Canada (Japan) Ltd., NSCL
Holdings Inc. and Norske ▇▇▇▇ Paper Company, and such other
Subsidiaries of NSCL as may become Restricted Parties from time to
time.
1.1.104 "S&P" means Standard & Poor's Corporation.
1.1.105 "SCHEDULE" means the designated schedule of this Agreement.
1.1.106 "SECTION" means the designated section of this Agreement.
1.1.107 "SECURED DEBT RATIO" means, at any time, the ratio of (a) the amount
of Funded Debt that is secured by any Encumbrance to (b) the
aggregate of all Funded Debt plus NSCL's shareholders' equity
determined in accordance with GAAP on a consolidated basis.
1.1.108 "SECURITY" means the security held from time to time by or on behalf
of the Lenders (including but not limited to the Trustee Security),
securing or intended to secure repayment of the Obligations,
including without limitation the security described in Section 6.1.
1.1.109 "SPECIAL DISTRIBUTION" means a distribution by NSCL to its
shareholders of approximately $1,490,000,000 in accordance with the
plan of arrangement under section 252 of the COMPANY ACT (British
Columbia) which was approved by NSCL's shareholders on 31 May 2001
and by the British Columbia Supreme Court on 1 June 2001.
1.1.110 "SPECIAL PERMITTED SENIOR INDEBTEDNESS" means Debt in an aggregate
principal amount of up to $50,000,000 outstanding at any time that
is Permitted Senior Indebtedness but may be secured by the Trustee
Security and may be payable before 14 August 2007.
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1.1.111 "SUBSIDIARY" means, with respect to a Restricted Party, a subsidiary
as defined in the CANADA BUSINESS CORPORATIONS ACT as of the date of
this Agreement, and any partnership or other organization in which
the Restricted Party or any of its Subsidiaries has the right to
make or control management decisions.
1.1.112 "SUCCESSOR AGENT" has the meaning defined in Section 12.11.
1.1.113 "SWAP" means any interest rate swap, basis swap, forward rate
transaction, currency hedging or swap transaction, cap transaction,
floor transaction, collar transaction, futures contract, or other
similar transaction, or any option or derivative with respect to
such a transaction or combination of any such transactions, whether
relating to interest rates, foreign exchange, commodities or
otherwise.
1.1.114 "SYNDICATION AGENTS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and RBC Dominion
Securities in their role as syndication agents for the Lenders.
1.1.115 "TAXES" means all taxes, levies, imposts, stamp taxes, duties,
deductions, withholdings, rates, assessments, fees, dues and similar
governmental impositions payable, levied, collected, withheld,
imposed or assessed as of the date of this Agreement or at any time
in the future, and "TAX" shall have a corresponding meaning.
1.1.116 "TERM CREDIT A means the credit of up to $150,000,000 or the US
Dollar equivalent thereof in favour of the Borrower which is
established by this Agreement for the purposes specified in Section
3.3.
1.1.117 "TERM CREDIT A LENDERS" means the Lenders who have provided
Commitments relating to Term Credit A as more particularly described
in Schedule E.
1.1.118 "TERM CREDIT B" means the credit of up to US $200,000,000 in favour
of the Borrower which is established by this Agreement to assist in
funding the Special Distribution and related fees.
1.1.119 "TERM CREDIT B LENDERS" means the Lenders who have provided
Commitments relating to Term Credit B as more particularly described
in Schedule E.
1.1.120 "TD" means The Toronto-Dominion Bank, a bank to which the BANK ACT
(Canada) applies.
1.1.121 "THRESHOLD AMOUNT" means, while the Pacifica Notes are outstanding,
the aggregate of:
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(a) the greater of (i) $430,000,000 and (ii) the sum of 75% of the
net book value of the accounts receivable of NSCL and its
"Restricted Subsidiaries" as defined under the Pacifica
Indenture plus 50% of the net book value of inventory of NSCL
and its Restricted Subsidiaries plus $290,000,000;
(b) $40,000,000; and
(c) the amount of Advances outstanding under the Operating Credit
that are trade letters of credit and standby letters of credit
incurred in the ordinary course of business and the amount of
Bankers' Acceptances outstanding under the Credits that are
incurred in the ordinary course of business, up to an
aggregate principal amount of $5,000,000 outstanding at any
one time;
and, if the Pacifica Notes are no longer outstanding and the Bridge
Loan and/or the NSCL Notes are outstanding, means such higher amount
as the Agent determines is permitted based on the terms of the
Bridge Loan and/or the NSCL Notes that correspond with clauses (i),
(ix) and (xi) of the definition of "Permitted Indebtedness" in the
Pacifica Indenture.
1.1.122 "TOTAL INTEREST EXPENSE" means, for any particular period, without
duplication, the aggregate expense incurred by NSCL on a
consolidated basis (omitting amounts that are not attributable to
Restricted Parties) for interest and equivalent costs of borrowing
(taking into account the effect of any relevant Swaps), including
but not limited to (i) bankers' acceptance fees, (ii) discounts on
bankers' acceptances, (iii) the interest portion of any capital
lease, and (iv) all fees and other compensation paid to any person
that has extended credit to the Restricted Parties other than any
upfront, extension and similar non-recurring fees paid to the Agent
or Lenders, in each case whether or not actually paid (unless paid
by the issuance of securities constituting Debt), and calculated in
accordance with GAAP.
1.1.123 "TRUSTEE" means The Canada Trust Company in its capacity as trustee
under the Trustee Security from time to time, and any successor
trustee.
1.1.124 "TRUSTEE SECURITY" means the trust deeds granted by the Restricted
Parties to the Trustee and the pledges of Pledged Shares,
assignments of Material Contracts and other collateral security for
the trust deeds.
1.1.125 "US AGENT" means Toronto Dominion (Texas), Inc. or any successor
appointed in accordance with this Agreement.
1.1.126 "US DOLLARS" and "US $" mean lawful money of the United States of
America.
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1.1.127 "US PRIME RATE" means, on any day, the greater of:
(a) the annual rate of interest (expressed as a percentage per
annum on the basis of a calendar year) announced by TD's New
York branch on that day as its reference rate for commercial
loans made in the United States of America in US Dollars; and
(b) the Federal Funds Effective Rate plus 1% per annum.
1.1.128 "US PRIME RATE ADVANCE" means an Advance in US Dollars bearing
interest based on the US Prime Rate and includes deemed US Prime
Rate Advances provided for in this Agreement.
1.1.129 "WELFARE PLAN" means any medical, health, hospitalization, insurance
or other employee benefit or welfare plan, agreement or arrangement
applicable to employees of any Restricted Party.
ARTICLE II
OPERATING CREDIT
2.1 AMOUNT AND AVAILMENT OPTIONS
2.1.1 Upon and subject to the terms and conditions of this Agreement, the
Operating Credit Lenders agree to provide a credit for the use of the
Borrower in the amount of up to Cdn. $250,000,000 or the US Dollar equivalent
thereof, which is referred to collectively as the Operating Credit and is
comprised of a tranche of up to Cdn.$220,000,000 referred to as Operating
Credit 1 and a tranche of up to Cdn. $30,000,000 referred to as Operating
Credit 2. Subject to Section 8.1, Advances under Operating Credit 1 will be
made by the Operating Credit Lenders and Advances under Operating Credit 2
will be made by RBC. The Borrower may from time to time with the agreement of
RBC, the Agent and the proposed replacement, designate another Operating
Credit Lender to replace RBC in making Advances under Operating Credit 2. In
that case, references in this Agreement to RBC in respect of Operating Credit
2 shall be interpreted as referring to the replacement.
2.1.2 At the option of the Borrower, Operating Credit 1 may be used by
requesting Prime Rate Advances to be made by the Operating Credit Lenders, by
requesting Base Rate Advances to be made by the Operating Credit Lenders, by
presenting orders to the Operating Credit Lenders for acceptance as Bankers'
Acceptances, by requesting that LIBOR Advances be made by the Operating
Credit Lenders, or by requesting that L/Cs be issued by the Issuing Bank on
behalf of all Operating Credit Lenders. The aggregate face amount of L/Cs
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outstanding under Operating Credit 1 at any time shall not, however, exceed
$50,000,000 or the US Dollar equivalent thereof.
2.1.3 Operating Credit 2 may be used by the Borrower incurring overdrafts
in its accounts with RBC, which shall be deemed to be Prime Rate Advances in
the case of Canadian Dollar overdrafts and Base Rate Advances in the case of
US Dollar overdrafts, by presenting orders to RBC for acceptance as Bankers'
Acceptances, by requesting that LIBOR Advances be made by RBC or by
requesting that L/Cs be issued by RBC. The aggregate face amount of L/Cs
outstanding under Operating Credit 2 at any time shall not, however, exceed
$10,000,000 or the US Dollar equivalent thereof.
2.2 REVOLVING CREDIT
The Operating Credit is a revolving credit and the principal amount
of any Advance under the Operating Credit that is repaid may be reborrowed, if
the Borrower is otherwise entitled to an Advance under the Operating Credit.
2.3 USE OF OPERATING CREDIT
The Operating Credit shall be used to assist in financing the
general corporate requirements of the Restricted Parties, including to assist in
financing the Acquisition (including related expenses) and refinancing the
Pacifica Bank Debt.
2.4 TERM AND REPAYMENT
The Operating Credit shall be repaid in full and cancelled on or
before 30 June 2004. If no Event of Default or Pending Event of Default has
occurred and is continuing, the Borrower may request that the maturity date of
the Operating Credit be extended by successive one year periods in accordance
with the following procedures:
2.4.1 The Borrower shall, if it wishes to extend the maturity date, make such
request to each Operating Credit Lender by written notice given to the Agent not
earlier than 1 April nor later than 30 April in each year. Each Operating Credit
Lender shall provide a written response to such request to the Agent within 30
days after receiving the request. If any Operating Credit Lender fails to
respond, it shall be deemed to have declined to grant any extension (and shall
have no liability for failing to respond). Promptly thereafter, the Agent will
notify the Borrower of the response of the Operating Credit Lenders, which
notice shall include the names of all Operating Credit Lenders who declined or
were deemed to have declined to grant such extension (the "DECLINING LENDERS").
2.4.2 If all of the Lenders agree to extend the maturity date, the Conversion
Date shall be extended by one year from the then applicable maturity date.
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2.4.3 If the aggregate amount of the Commitments in respect of the Operating
Credit of all Lenders who agree to extend the maturity date (the "ACCEPTING
LENDERS") is less than or equal to two-thirds of the aggregate Commitments in
respect of the Operating Credit of all Lenders then in effect, the maturity date
shall not be extended.
2.4.4 If the aggregate amount of the Commitments of the Accepting Lenders
exceeds two-thirds of the aggregate Commitments of all Lenders in respect of the
Operating Credit then in effect, unless the Borrower elects not to extend the
maturity date by giving a further written notice to the Agent to that effect
before the then applicable maturity date, the maturity date shall be extended by
one year from the then applicable maturity date provided that the Borrower has,
before the then applicable maturity date, replaced or cancelled the Commitments
in respect of the Operating Credit of all Declining Lenders in the following
manner:
(a) the Operating Borrower may negotiate an agreement with:
(i) one or more of the Accepting Lenders, or
(ii) one or more other financial institutions ("NEW
LENDERS") which have been identified by the Borrower
(with the assistance of the Agent, if requested) and
which are acceptable to the Accepting Lenders, acting
reasonably,
to assume the Commitments of the Declining Lenders upon
payment to the Declining Lenders of all amounts owed to the
Declining Lenders under or in connection with the Operating
Credit, and in that event an assignment by the Declining
Lenders to the Accepting Lenders or the New Lenders will be
deemed to have occurred in accordance with the terms of the
form of Assignment Agreement; and
(b) to the extent the Commitments of the Declining Lenders have
not been fully assumed by the Accepting Lenders and the New
Lenders pursuant to paragraph (a) above, the Borrower shall
cancel the Commitments of the Declining Lenders and pay to the
Declining Lenders on the latest maturity date to which the
Declining Lenders have previously agreed, all amounts owed to
the Declining Lenders under or in connection with the
Operating Credit, without penalty but subject to payment of
any losses, costs and expenses payable to the Declining
Lenders pursuant to this Agreement.
2.5 INTEREST RATES AND FEES
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Interest rates on Prime Rate Advances, Base Rate Advances and LIBOR
Advances and the rates for calculation of Bankers' Acceptance Fees and L/C Fees
shall vary according to the Reference Debt Ratings. The rate for calculation of
Bankers' Acceptance Fees and L/C Fees shall be the Applicable Fee Rate per annum
from time to time in effect. Interest shall accrue and be payable on Prime Rate
Advances and Base Rate Advances at the Prime Rate and Base Rate, respectively,
per annum plus the Applicable Margin from time to time in effect. Interest shall
accrue and be payable on LIBOR Advances at the LIBO Rate per annum for the
applicable LIBOR Period plus the Applicable Margin from time to time in effect.
Any change in the Applicable Fee Rate or Applicable Margin shall take effect as
provided in the definitions of those terms.
Interest and fees for Operating Credit 1 shall be promptly
distributed by the Agent to the Operating Credit Lenders based on their
respective Proportionate Shares as adjusted in accordance with Section 8.2.
Subject to Section 8.1, interest for Operating Credit 2 shall be paid to RBC for
its own account. In addition, a fronting fee calculated in the same manner as
the L/C Fee but at a rate of 0.125% per annum on the amount of each L/C issued
under Operating Credit 1 will be payable to the Issuing Bank for its own
account.
2.6 COMMITMENT FEE
The Borrower shall pay commitment fees based on the daily undrawn
portion of Operating Credits 1 and 2, respectively, at the following rates,
which shall vary according to the percentage of the aggregate amount of the
Operating Credit which is drawn and the Applicable Fee Rate from time to time:
Applicable Commitment Fee
Percentage which is Drawn (% of Applicable Fee Rate)
LESS THAN OR EQUAL TO =33% 35%
GREATER THAN 33 LESS THAN OR EQUAL TO =67% 30%
GREATER THAN 67% 25%
The commitment fee shall be calculated daily beginning on 14 August
2001 and shall be payable quarterly in arrears on the third Business Day after
the end of each calendar quarter, with the first payment to be made on 3 October
2001. Commitment fees for Operating Credit 1 shall be promptly distributed by
the Agent to the Operating Credit Lenders based on their respective
Proportionate Shares as adjusted in accordance with Section 8.2. Subject to
Section 8.1, commitment fees for Operating Credit 2 shall be paid to RBC for its
own account.
2.7 OTHER FEES
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The Borrower shall also pay agency and other fees in respect of all
Credits to the Agent in accordance with the Fee Agreement and to TD, RBC and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Canada Inc. in accordance with the fee letter dated 15 May
2001 as amended by letter dated 25 July 2001 from those Lenders to NSCL.
2.8 EXISTING L/CS
The letters of credit listed on Schedule L, which were issued by RBC
pursuant to its credit arrangements with NSCL before the date of this Agreement,
shall be deemed to have been issued as L/Cs and to be Advances under Operating
Credit 1 in the case of the first letter of credit listed on Schedule L and
Operating Credit 2 in the case of the other letters of credit. The Borrower
hereby assumes all debts, liabilities and obligations of NSCL under or in
connection with the letters of credit listed on Schedule L. The Borrower shall,
concurrently with the first Advance under this Agreement, pay the Agent for the
accounts of the Operating Credit Lenders and the Issuing Bank L/C Fees and
fronting fees that would have been paid to them had those L/Cs been issued on
the date of the first Advance for terms from that date to the respective expiry
dates of the L/Cs.
ARTICLE III
TERM CREDIT A
3.1 AMOUNT AND AVAILMENT OPTIONS
Upon and subject to the terms and conditions of this Agreement, the
Term Credit A Lenders agree to provide a credit for the use of the Borrower in
the amount of up to Cdn. $150,000,000 or the US Dollar equivalent thereof. At
the option of the Borrower, Term Credit A may be used by requesting Prime Rate
Advances to be made by the Term Credit A Lenders, by requesting Base Rate
Advances to be made by the Term Credit A Lenders, by presenting orders to the
Term Credit A Lenders for acceptance as Bankers' Acceptances or by requesting
that LIBOR Advances be made by the Term Credit A Lenders.
Term Credit A may be drawn only in a single Advance, other than
Advances that are rollovers or conversions. No Advance under Term Credit A,
other than a rollover or conversion, will be available after 31 August 2001. Any
amount under Term Credit A which is not drawn at the time of the initial Advance
under Term Credit A or which is not drawn on or before 31 August 2001 will be
permanently cancelled. If NSCL issues the NSCL Notes on or before the date of
the initial Advance with gross proceeds greater than US $200,000,000, the
maximum amount available under Term Credit A will be reduced by the Canadian
Dollar equivalent of the amount by which the gross proceeds of the NSCL Notes
exceed US $200,000,000.
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3.2 NON-REVOLVING CREDIT
Term Credit A is a non-revolving credit and the principal amount of
any Advance under Term Credit A that is repaid may not be reborrowed.
3.3 USE OF TERM CREDIT A
Term Credit A shall be used to assist in funding the Special
Distribution and related expenses and shall be drawn only on the date the
Special Distribution is to be paid, which for greater certainty includes the
date on which NSCL determines to put its transfer agent in funds for the purpose
of paying the Special Distribution.
3.4 TERM AND REPAYMENT
Term Credit A shall be repaid and permanently reduced by quarterly
instalments on the last Business Days of each of March, June, September and
December of each year, beginning in December 2001, in the following percentages
of the principal amount of the Advances under Term Credit A as of 1 September
2001:
Dates Amount of Each Payment
----- ----------------------
December 2001 to June 2003 2.5%
September 2003 to June 2004 5.0%
September 2004 to June 2005 6.25%
September 2005 to June 2006 9.375%
In addition to the scheduled repayments and reductions, the
aggregate amount available under Term Credit A and Term Credit B shall be repaid
and permanently reduced in accordance with Section 5.1. Term Credit A shall, in
any event, be repaid in full and cancelled on or before 30 June 2006.
3.5 INTEREST RATES AND FEES
Interest and fees shall be payable on Advances under Term Credit A
at the same rates as specified in Section 2.5 in relation to Advances under the
Operating Credit.
Interest and fees shall be distributed by the Agent to the Term
Credit A Lenders based on their respective Proportionate Shares.
3.6 COMMITMENT FEE
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The Borrower shall pay a commitment fee based on the daily undrawn
portion of Term Credit A at a rate equal to 0.7875% per annum. The commitment
fee shall be calculated daily from and including 14 August 2001 to but excluding
the date of the initial Advance or cancellation of Term Credit A, and shall be
payable on 31 August 2001 or the date of the initial Advance, whichever is
earlier. The commitment fee shall be promptly distributed by the Agent to the
Term Credit A Lenders based on their respective Proportionate Shares.
ARTICLE IV
TERM CREDIT B
4.1 AMOUNT AND AVAILMENT OPTIONS
Upon and subject to the terms and conditions of this Agreement, the
Term Credit B Lenders agree to provide a credit for the use of the Borrower in
the amount of up to US $200,000,000. At the option of the Borrower, Term Credit
B may be used by requesting US Prime Rate Advances to be made by the Term Credit
B Lenders or by requesting that LIBOR Advances be made by the Term Credit B
Lenders.
Term Credit B may be drawn only in a single Advance at the time of
the initial Advance under this Agreement, other than Advances that are rollovers
or conversions. Any amount under Term Credit B which is not drawn at the time of
the initial Advance under this Agreement will be permanently cancelled.
4.2 NON-REVOLVING CREDIT
Term Credit B is a non-revolving credit and the principal amount of
any Advance under Term Credit B that is repaid may not be reborrowed.
4.3 USE OF TERM CREDIT B
Term Credit B shall be used to assist in funding the Special
Distribution and related expenses.
4.4 TERM AND REPAYMENT
Term Credit B shall be repaid and permanently reduced by instalments
that are each equal to 0.25% of the principal amount of the Advances under Term
Credit B as of 1 September 2001. Payments shall be made on the last Business
Days of each of March, June, September and December in each year, beginning on
28 September 2001. Term Credit B shall, in any event, be repaid in full and
cancelled on or before 14 August 2007. In addition
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to the scheduled repayments and reductions, the aggregate amount available under
Term Credit A and Term Credit B shall be repaid and permanently reduced in
accordance with Section 5.1.
4.5 INTEREST RATES
Interest rates on US Prime Rate Advances and LIBOR Advances shall
vary according to the Reference Debt Ratings. Interest shall accrue and be
payable on US Prime Rate Advances at the US Prime Rate per annum plus the
Applicable Margin from time to time in effect. Interest shall accrue and be
payable on LIBOR Advances at the LIBO Rate per annum for the applicable LIBOR
Period plus the Applicable Margin from time to time in effect. Any change in the
Applicable Margin shall take effect as provided in the definition of that term.
Interest and fees for Term Credit B shall be promptly distributed by
the Agent to the Term Credit B Lenders based on their respective Proportionate
Shares.
4.6 ESCROW FOR ADVANCE
The initial Advance under Term Credit B shall be made in US Dollars
upon satisfaction of all conditions precedents in Sections 7.1 and 7.3, but
shall not be released to the Borrower until the date for payment of the Special
Distribution upon the Agent being satisfied that the Special Distribution will
be paid on that date, including being satisfied that NSCL has established the
payment date for the Special Distribution and that NSCL has notified the Toronto
Stock Exchange of the payment date. Until then, the proceeds of the Advance
shall be deposited with and held by the Agent in escrow and, without limiting
the Lenders' other rights, may be set off against the Obligations relating to
the Advance (and returned to the respective Term Credit B Lenders) upon any
Event of Default occurring, or if the Special Distribution is not paid on the
date for payment established by NSCL's board of directors.
ARTICLE V
PREPAYMENTS OF CREDITS
5.1 PREPAYMENTS OF CREDITS
5.1.1 It shall be an Event of Failure under this Agreement (and is acknowledged
by the Lenders to be an event of failure within the meaning of subparagraph
212(1)(b)(vii) of the INCOME TAX ACT (Canada)) if:
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(a) a Restricted Party sells or otherwise disposes of any part of
its Property (including Capital Stock of any other person)
having a fair market value in excess of an aggregate for all
Restricted Parties during the term of this Agreement of 12.5%
of the Consolidated Net Tangible Assets valued immediately
before any disposition, other than dispositions to another
Restricted Party, sales of inventory in the ordinary course of
its business and the redemption of the shares of ▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Pulp Operations Ltd. referred to in Section
1.1.87(m), if the proceeds are used to repay the debt secured
by the pledge of those shares;
(b) any Property of a Restricted Party is expropriated, condemned,
destroyed, damaged or otherwise lost;
(c) the Acquisition is not completed on or before 31 August 2001;
or
(d) a Restricted Party incurs any Debt, other than the
Obligations, Debt contemplated in Section 1.1.87(l), the
Bridge Loan and the NSCL Notes, at a time when the Funded Debt
Ratio is greater than 50% after giving effect to any
additional Debt.
5.1.2 If an Event of Failure occurs, the Borrower shall offer to repay
Advances under Term Credits A and B equal to:
(a) in the case of an Event of Failure under Section 5.1.1(a),
100% of the proceeds of all sales and other dispositions of
Property in excess of the threshold specified in Section
5.1.1(a) above, net of all direct out of pocket costs of
disposition and net of an allowance determined by NSCL's
auditors and approved by the Agent for future income tax
payable by the Restricted Parties as a result of any capital
gain or income from the disposition, except to the extent such
net proceeds are paid on account of the obligations secured by
a Permitted Encumbrance having priority over the Security or
are used to acquire revenue producing Property within the core
business of the Restricted Parties within 12 months after the
receipt thereof;
(b) in the case of an Event of Failure under Section 5.1.1(b),
100% of the proceeds of all insurance (other than liability or
business interruption insurance) and other compensation for
the expropriation, condemnation, destruction, damage or other
loss of any Property of a Restricted Party, except to the
extent such proceeds are paid on account of the obligations
secured by a Permitted Encumbrance having priority over the
Security, are used to repair or replace the Property
expropriated, condemned, destroyed, damaged or otherwise lost,
or are used to acquire revenue producing Property within the
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core business of the Restricted Parties, in each case within
12 months (or such longer time as may be reasonably necessary
in the case of repair or replacement) after the receipt
thereof;
(c) in the case of an Event of Failure under Section 5.1.1(c),
$100,000,000 or the equivalent thereof in US Dollars
(representing a portion of the proceeds of the sale of the
Capital Stock of Norske ▇▇▇▇ Canada Mackenzie Pulp Limited
which were received on 15 June 2001 and retained by NSCL in
anticipation of funding the Acquisition) if the Acquisition
has not been completed on or before 31 August 2001;
(d) in the case of an Event of Failure under Section 5.1.1(d),
100% of the proceeds (net of all direct out of pocket costs of
issuance) from any issuance of Debt other than the
Obligations, Debt contemplated in Section 1.1.87(l), the
Bridge Loan and the NSCL Notes.
The offer to repay Advances shall be made by the Borrower to the Agent
immediately upon expiry of the respective periods mentioned in items (a), (b)
and (c) above or immediately upon receipt of proceeds in the case of item (d)
above, and payment shall be made not later than the fourth Business Day after
acceptance of the offer. The offer shall be deemed to be accepted by the Term
Credit A Lenders unless the Term Credit A Lenders unanimously agree otherwise.
The offer shall be deemed to be accepted by the Term Credit B Lenders unless
Term Credit B Lenders holding, in the aggregate, a minimum of 66 2/3% of the
outstanding amount of the Commitments for Term Credit B agree otherwise (without
prejudice to any right of the Term Credit B Lenders to decline payment as
specified in Section 5.1.7). If the offer is declined by the Term Credit A
Lenders or Term Credit B Lenders (other than as specified in Section 5.1.7), the
proceeds that would otherwise be paid to the Lenders which decline payment may
be retained by the relevant Restricted Party or shall be used in accordance with
any condition agreed upon by the Lenders and the Borrower as a basis of the
Lenders' agreement to decline repayment of Advances. The Majority Lenders may
require that proceeds referred to in item (b) above be immediately used to repay
Term Credits A and B if:
(e) an Event of Default or Pending Event of Default has occurred
and is continuing; or
(f) the Majority Lenders determine, acting reasonably, that the
proceeds of such insurance together with other resources
available and likely to become available to the Restricted
Parties (the use of which would not contravene this Agreement)
are not sufficient to fully repair or replace the Property in
respect of which the insurance proceeds are payable within the
remaining term of the then-outstanding Credits or within 365
days, whichever is less.
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5.1.3 The following amounts shall be used to repay the Operating Credit,
without prejudice to the Borrower's right to obtain further Advances under the
Operating Credit, unless otherwise specified in this Agreement:
(a) the proceeds referred to in Section 5.1.2(a), to the extent
that they are not immediately used to repay Term Credits A and
B, to repay obligations secured by a Permitted Encumbrance
having priority over the Security, or to acquire revenue
producing Property within the core business of the Restricted
Parties;
(b) the proceeds referred to in Section 5.1.2(b), to the extent
that they are not immediately used to repay Term Credits A and
B, to repay obligations secured by a Permitted Encumbrance
having priority over the Security, or to repair or replace the
Property expropriated, condemned, destroyed, damaged or
otherwise lost, and are not required to be paid to the Trustee
under Section 10.6;
(c) all proceeds of business interruption insurance held by a
Restricted Party.
If nothing is outstanding under the Operating Credit, any remaining amounts
shall be held by the Agent as part of the Security for the Obligations until
applied to payment of the Obligations or released to the affected Restricted
Party. The Agent shall place all such funds in an interest-bearing account with
the interest thereon to accrue to the benefit of the affected Restricted Party.
5.1.4 The proceeds of the NSCL Notes shall be used to repay the Bridge Loan
if it has been funded and otherwise shall be used to assist in financing the
Acquisition, refinancing the Pacifica Bank Debt and paying relating financing
and restructuring transaction costs. If the gross proceeds of the NSCL Notes are
greater than the outstanding unpaid principal of the Bridge Loan (including any
interest added to principal), Term Credit A shall be repaid and permanently
reduced by the Canadian Dollar equivalent of the amount by which the gross
proceeds of the NSCL Notes exceed the outstanding unpaid principal of the Bridge
Loan, and the repayment and reduction shall be applied against scheduled
repayments and reductions of Term Credit A in inverse order of due date.
5.1.5 In addition to other required repayments and reductions, and except for
proceeds that are used to repay the Bridge Loan, the aggregate amount available
under Term Credits A and B shall, if the Funded Debt Ratio is greater than 50%
after giving effect to any additional Debt, be repaid and permanently reduced by
100% of the proceeds (net of all direct out of pocket costs of issuance) from
any issuance of Capital Stock, any right to acquire Capital Stock or any
equity-equivalent security. Such payments shall be made on receipt of the
proceeds and shall be applied on a PRO RATA basis to Term Credit A and Term
Credit B and further on a PRO RATA basis against scheduled repayments and
reductions of the respective
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Credits, or as otherwise agreed to by the Term Credit A Lenders and the Term
Credit B Lenders.
5.1.6 Notwithstanding the principal payments contemplated in Sections 4.4 and
5.1.5, the aggregate amount of all mandatory principal payments under Term
Credit B within the first five years following the date of the initial Advance
of Term Credit B (which will occur on 14 August 2001 subject to satisfaction of
all conditions precedent) shall not exceed 25% of the principal amount of Term
Credit B, except for payments required as a result of an Event of Default or
Event of Failure. If the preceding sentence would prevent a mandatory payment in
respect of Term Credit B, the Borrower may make a voluntary payment in respect
of Term Credit B, failing which the principal payment that would have been paid
in respect of Term Credit B if not prevented by the preceding sentence shall
instead be paid in respect of Term Credit A as long as it remains outstanding
and thereafter shall be applied to repay and permanently reduce the Operating
Credit.
5.1.7 So long as any Advances or undrawn Commitments are outstanding under
Term Credit A, each Term Credit B Lender shall have the right to refuse all or
any portion of any voluntary or mandatory prepayments applicable to its Advances
under Term Credit B. Any amount that is refused by a Term Credit B Lender shall
be used to repay and permanently reduce Term Credit A.
5.1.8 Voluntary prepayments on Term Credit A and/or Term Credit B, other than
those contemplated in Section 5.1.6, shall be applied to Term Credit A and Term
Credit B on a PRO RATA basis, based on the outstanding principal amount at the
time of payment. Voluntary prepayments shall be applied to reduce the scheduled
instalments of Term Credit A and Term Credit B, including the payment due on
maturity, in inverse order of due date. Mandatory prepayments and proceeds of
offers to repay Advances upon an Event of Failure shall be applied to Term
Credit A and Term Credit B PRO RATA and shall be applied to reduce the scheduled
instalments of Term Credit A and Term Credit B, including the payment due on
maturity, PRO RATA within each Credit, or as otherwise agreed by the respective
Lenders. If any scheduled instalment of Term Credit B is prevented by reason of
Section 5.1.6, the reduction that would otherwise have been made to that
instalment shall instead be made to the corresponding scheduled instalment of
Term Credit A.
5.1.9 The provisions of this Section concerning use of proceeds shall not
affect any provision of this Agreement that requires the consent of the Lenders
or any of them to any disposition, incurrence of Debt or other matter
contemplated above.
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ARTICLE VI
SECURITY AND EXCHANGE RATE FLUCTUATIONS
6.1 SECURITY
6.1.1 The Security includes the following, all in form and substance
satisfactory to the Lenders and subject only to Permitted Encumbrances:
(a) a $5,000,000,000 trust deed granted by each Restricted Party
in favour of the Trustee, secured by a fixed charge over all
freehold and leasehold real property and all equipment and a
security interest and floating charge over all other Property,
together with such other documents as the Lenders may require
from time to time to charge Property located outside of
British Columbia;
(b) debentures issued under each trust deed and pledged in favour
of the Agent for the benefit of the Lenders;
(c) pledges in favour of the Trustee of all Capital Stock of the
Restricted Parties other than NSCL that are owned by the
Restricted Parties (including NSCL) from time to time;
(d) pledges in favour of the Trustee of all Capital Stock of
persons other than Restricted Parties (excluding ▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Pulp Operations Ltd. but including ▇▇▇▇ & Talbot,
Inc.) that are owned by the Restricted Parties from time to
time;
(e) specific assignments by way of security of such Material
Contracts as are designated by the Agent from time to time, by
the relevant Restricted Parties in favour of the Trustee;
(f) unconditional guarantees of the Obligations by each of the
Restricted Parties, excluding the Borrower, which shall be
unlimited except for limits imposed by applicable law.
Notwithstanding the foregoing, but subject to compliance with
Sections 10.5.3(d) and 10.5.3(e), the Restricted Parties shall not be required
to deliver Security documents in a form customarily used in jurisdictions
outside Canada, California and Delaware or arrange registrations of the Security
outside Canada, California and Delaware as a condition precedent to the initial
Advance under this Agreement, but shall cause such documents to be delivered
immediately upon request by the Agent, together with all opinions and supporting
documents that the Agent reasonably requires.
Notwithstanding Section 6.1.1(d), if NSCL notifies the Agent that it
wants to sell Capital Stock of ▇▇▇▇ & ▇▇▇▇▇▇, Inc., then provided an Event of
Default has not occurred and
- 42 -
is continuing the Agent shall promptly release such Capital Stock from the
Security if the sale price per share equals or exceeds US $10, but if the sale
price per share is less than US $10, then such release shall be in the
discretion of the Agent acting reasonably.
Except for the companies listed in Schedule I (other than any
Restricted Parties), if at any time NSCL owns, establishes or acquires a
Subsidiary that is wholly owned by NSCL, directly or indirectly (including but
not limited to those that are acquired through the Acquisition), NSCL shall
immediately cause that Subsidiary to become a Restricted Party, adopt this
Agreement by delivering an agreement in the form of Schedule B so as to be bound
by all of the terms applicable to Restricted Parties as if it had executed this
Agreement as a Restricted Party, and deliver a guarantee and other security
documents similar to those delivered by other Restricted Parties, which shall
become part of the Security. NSCL shall also deliver or cause the delivery of a
pledge of all of the Capital Stock of the new Subsidiary as part of the Trustee
Security and cause the delivery of such legal opinions and other supporting
documents as the Agent may reasonably require. In connection with the
Acquisition, NSCL shall deliver a pledge of all Capital Stock of Pacifica
concurrently with the completion of the Acquisition and shall cause all other
requirements of this paragraph to be complied with in respect of Pacifica and
its wholly-owned Subsidiaries (including but not limited to Pacifica Papers
Sales Ltd., Pacifica Poplars Ltd., Pacifica Papers Kabushiki Kaisha, Pacifica
Papers U.S. Inc., Pacifica Poplars Inc. and Pacifica Papers Sales Inc.) and
Pacifica Papers Co. LP concurrently with the completion of the amalgamation of
NSCL with Pacifica.
If at any time any Restricted Party owns or obtains an interest in a
person that is not a wholly owned Subsidiary, other than ▇▇▇▇▇▇ River Energy
Inc., NSCL shall cause that interest to immediately be pledged as part of the
Trustee Security and cause the delivery of such legal opinions and other
supporting documents as the Agent may reasonably require.
If at any time all of the Capital Stock of a Restricted Party other
than the Borrower or NSCL is sold in accordance with the terms of this
Agreement, other than to another Restricted Party, then if no Event of Default
or Pending Event of Default has occurred and is continuing, the Restricted Party
of which the Capital Stock has been sold and any wholly-owned Subsidiary thereof
that is a Restricted Party shall, on request by NSCL, cease to be a Restricted
Party and the Agent shall deliver or direct the Trustee to deliver such releases
of the Security, including guarantees, as may reasonably be required to release
the obligations of those Restricted Parties. The Agent shall also discharge any
Security (or direct the Trustee to do so) to the extent necessary to allow any
Restricted Party to complete any sale or other disposition of Property permitted
by this Agreement.
6.2 OBLIGATIONS SECURED BY THE TRUSTEE SECURITY
6.2.1 Debentures shall be issued by the Restricted Parties under their
respective trust deeds and pledged to the Agent to secure the Obligations up to
the Threshold Amount and
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the Other Secured Obligations (including guarantees by Restricted Parties of
Other Secured Obligations incurred by other Restricted Parties) equally and
ratably with each other but in priority to any other debts, liabilities and
obligations secured by the Trustee Security. Out of an abundance of caution
(recognizing that the Restricted Parties are not permitted to incur secured
Funded Debt in excess of the Threshold Amount if the Acquisition is completed),
further debentures shall be issued by the Restricted Parties under their
respective trust deeds and pledged to the Agent to secure the Obligations in
excess of the Threshold Amount, equally and ratably with the debts, liabilities
and obligations of the Restricted Parties under or in connection with the
Pacifica Notes, the Bridge Loan and/or the NSCL Notes if the Pacifica Notes, the
Bridge Loan and/or the NSCL Notes are required to be secured under their terms.
If the Acquisition is not completed, the limitations relating to the Threshold
Amount shall not apply and no debentures shall be issued or pledged to secure
the Pacifica Notes, the Bridge Loan or the NSCL Notes.
As between the Lenders, all Obligations shall rank equally and
ratably with each other notwithstanding that different Obligations may be
designated as having been incurred with reference to different provisions of the
Pacifica Indenture, the NSCL Notes and the Bridge Loan which might otherwise
imply that different Obligations have different rankings. Each Lender shall (and
hereby absolutely, unconditionally and irrevocably agrees to) do all such
things, including delivery of indemnity agreements and assignments to other
Lenders of Advances made by those Lenders as shall be required to ensure that
result. Any such action on the part of the Operating Credit Lenders shall be
binding on the Borrower. If any Lender fails to take the actions required under
this Section, the Agent may, without prejudice to the other rights of the
Lenders, make such adjustments to the payments to the defaulting Lender under
this Agreement as are necessary to compensate the other Lenders for the
defaulting Lender's failure.
Further debentures may be issued by a Restricted Party under its
trust deed and pledged to another Restricted Party to secure debts, liabilities
and other obligations to the other Restricted Party as long as the debentures
are subordinate to all debentures pledged to secure the Obligations and the
Other Secured Obligations and are assigned to the Agent as additional security
for the Obligations up to the Threshold Amount.
Subject to Section 10.1.2, further debentures may be issued by a
Restricted Party under its trust deed and pledged to secure Special Permitted
Senior Indebtedness. Any debentures issued and pledged for that purpose may rank
equally and ratably as to proceeds of enforcement of security with debentures
issued and pledged to secure the Obligations and the Other Secured Obligations,
but shall be designated as "Ratable Debentures" under the respective trust
deeds.
6.2.2 Out of an abundance of caution (recognizing that the Restricted Parties
are not permitted to incur secured Funded Debt in excess of the Threshold Amount
if the Acquisition
- 44 -
is completed), for the purposes of section 4.06 of the Pacifica Indenture (if
the Acquisition is completed), the Advances under Term Credit A and Term Credit
B are hereby classified by NSCL as being incurred under clause (i) of the
definition of "Permitted Indebtedness" in the Pacifica Indenture and the
Advances under the Operating Credit are hereby classified as being incurred
under clause (xi) of the definition of "Permitted Indebtedness" to the maximum
extent possible, thereafter under clause (i) of the definition of "Permitted
Indebtedness" to the maximum extent possible, and thereafter under clause (ix)
of the definition of "Permitted Indebtedness" to the maximum extent possible. If
the Bridge Loan and/or the NSCL Notes are issued, NSCL hereby makes the
corresponding classifications of Advances under the terms of the Bridge Loan
and/or the NSCL Notes, as the case may be. The classifications are irrevocable
without the consent of the Majority Lenders. To the extent that Advances under
the Operating Credit would exceed the Threshold Amount at the time they are
made, the Borrower shall only be entitled to obtain Advances if it is permitted
to do so under the Pacifica Indenture and the terms of the Bridge Loan and the
NSCL Notes.
If any Advance is within the Threshold Amount at the time it is made
and thereby entitled to be secured in priority to the Pacifica Notes, the Bridge
Loan and the NSCL Notes, it shall remain entitled to that priority
notwithstanding any subsequent diminution of the Threshold Amount. If any
repayment is made under the Operating Credit, it shall be deemed to have first
been made in respect of any Advance that was not within the Threshold Amount at
the time it was made, and shall only be made in respect of any Advance that was
within the Threshold Amount at the time it was made if no other Advances are
then outstanding under the Operating Credit.
For the purposes of section 4.06 of the Pacifica Indenture (if the
Acquisition is completed), the Other Secured Obligations are hereby classified
by NSCL as being incurred under clauses (v) and (vi) of the definition of
"Permitted Indebtedness" in the Pacifica Indenture. If the Bridge Loan and/or
the NSCL Notes are issued, NSCL hereby makes the corresponding classifications
of Advances under the terms of the Bridge Loan and/or the NSCL Notes, as the
case may be. The classifications are irrevocable without the consent of the
Majority Lenders.
6.2.3 As of the date of this Agreement, the Other Secured Obligations are
those listed in Schedule H. The Agent shall from time to time prepare and
provide the Lenders and NSCL with a revision of Schedule H to reflect changes in
the Other Secured Obligations, but the Agent's failure to do so shall not affect
the security for the Other Secured Obligations if it has been agreed in
accordance with this Section that they shall be secured by the Trustee Security.
Other Secured Obligations listed on Schedule H from time to time shall be
conclusively deemed to be secured by the Trustee Security (in the absence of
manifest error) and shall not cease to be secured without the prior written
consent of the respective Lenders to whom the Other Secured Obligations are
owed. If the Obligations have been indefeasibly paid in full, the Lenders will
release their interest in the Trustee Security upon receiving
- 45 -
Collateral to secure the Other Secured Obligations, in an amount satisfactory to
the Lenders to whom Other Secured Obligations are owed, acting reasonably.
Notwithstanding the rights of Lenders to benefit from the Trustee
Security in respect of the Other Secured Obligations, all decisions concerning
the Trustee Security and the enforcement thereof shall be made by the Lenders or
the Majority Lenders in accordance with this Agreement. No Lender holding Other
Secured Obligations from time to time shall have any additional right to
influence the Trustee Security or the enforcement thereof as a result of holding
Other Secured Obligations as long as this Agreement remains in force and the
Agent shall vote any debentures issued under the Trustee Security and pledged to
secure the Other Secured Obligations in the same manner as the debentures
pledged to secure the Obligations. However, the Other Secured Obligations shall
continue to be secured by the Trustee Security notwithstanding the termination
of this Agreement by reason of payment of the Credits, or for any other reason.
After the termination of this Agreement, decisions concerning the Trustee
Security shall be made by the holders of Other Secured Obligations as they may
determine among themselves.
6.3 CONSENT TO ASSIGNMENT OF CONTRACTS
Each Restricted Party that is a party to any Contract with, or that
has issued any instrument in favour of, any other Restricted Party or Restricted
Parties hereby acknowledges that the rights of the other Restricted Party or
Restricted Parties are charged by the Trustee Security, consents to the granting
of the Trustee Security and agrees that the Trustee shall be entitled to enforce
the Trustee Security in accordance with the terms thereof.
6.4 EXCHANGE RATE FLUCTUATIONS
If fluctuations in rates of exchange in effect between US Dollars
and Cdn. Dollars cause the amount of Advances (expressed in Cdn. Dollars) under
the Operating Credit or Term Credit A to exceed the maximum amount of that
Credit permitted herein by three percent or more at any time, the Borrower shall
pay the Lenders immediately on demand such amount as is necessary to repay the
excess. If the Borrower is unable to immediately pay that amount because LIBOR
Periods have not ended or Bankers' Acceptances have not matured, the Borrower
shall, immediately on demand, post Collateral with the Agent in the amount of
the excess, which shall form part of the Security for the Obligations and be
held until the amount of the excess is paid in full or is less than three
percent. If, on the date of any Advance under the Operating Credit or Term
Credit A (whether by rollover, conversion or otherwise), the amount of Advances
(expressed in Cdn. Dollars) under that Credit exceeds the maximum amount of that
Credit permitted herein because of fluctuations in rates of exchange, the
Borrower shall immediately pay the Lenders the excess and shall not be entitled
to any Advance that would result in the amount of that Credit being exceeded.
- 46 -
ARTICLE VII
DISBURSEMENT CONDITIONS
7.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE
The following conditions precedent must be satisfied at or before
the time of the first Advance under this Agreement, unless waived in accordance
with Section 12.7.2. Where delivery of documents is referred to, the documents
shall be delivered to the Agent, for and on behalf of the Lenders, and shall be
in full force and effect and in form and substance satisfactory to the Lenders.
7.1.1 SPECIAL DISTRIBUTION - The Agent shall have received:
(a) a certificate of NSCL with copies of all documents necessary
to fully and fairly disclose all material terms of the Special
Distribution;
(b) evidence that all Permits and other approvals required for
payment of the Special Distribution have been obtained and are
in full force and effect and that the Special Distribution is
permitted by applicable Requirements of Law.
7.1.2 OTHER DEBT AND ENCUMBRANCES - The Agent shall have received:
(a) evidence that all existing credit facilities and other Debt of
the Restricted Parties not forming part of Permitted
Obligations have been or will be paid and performed in full
and cancelled concurrently with the first Advance and that all
security held in connection therewith has been or will be
promptly released;
(b) releases, discharges and postponements (in registrable form
where appropriate) covering all Encumbrances affecting the
collateral Encumbered by the Security which are not Permitted
Encumbrances, and all statements and acknowledgments that are
reasonably required in respect of other security interests
affecting the Property of the Restricted Parties or other
parties delivering Security to confirm that the collateral
Encumbered by those Encumbrances does not include the
collateral Encumbered by the Security or is a Permitted
Encumbrance.
7.1.3 FINANCIAL INFORMATION - The Agent shall have received:
(a) a certificate of NSCL containing its audited consolidated
financial statements for its fiscal period ended 31 December
2000 and its unaudited consolidated
- 47 -
financial statements for its fiscal period ended 30 June 2001
(and the Lenders must be satisfied with the matters disclosed
by those statements);
(b) a Compliance Certificate from NSCL for the fiscal period ended
30 June 2001, with calculations based on both NCSL's actual
financial results and the PRO FORMA combined financial
statements of NCSL and Pacifica;
(c) PRO FORMA consolidated financial statements for NSCL as of 31
December 2000 (excluding PRO FORMA balance sheet) and 30 June
2001, giving effect to the Bridge Loan and/or NSCL Notes, the
Pacifica Notes, the Acquisition and the Advances contemplated
by this Agreement.
7.1.4 SECURITY AND OTHER DOCUMENTS - The Agent shall have received:
(a) duly executed copies of this Agreement and the Security, duly
registered as required;
(b) certificates representing the Pledged Shares, and executed
stock powers of attorney relating to those certificates;
(c) certificates of insurance or other evidence that the covenants
and conditions of the Credit Documents concerning insurance
coverage are being complied with;
(d) the Fee Agreement;
(e) agreements from other parties to Material Contracts that have
then been specifically assigned as part of the Trustee
Security, except to the extent that the Agent expressly
permits such agreements to be obtained after the date of the
initial Advance.
7.1.5 CORPORATE AND OTHER INFORMATION - The Agent shall have received:
(a) a certificate of each Restricted Party with copies of its
Constating Documents, a list of its officers and directors
with specimens of the signatures of those who are executing
Credit Documents on its behalf, and copies of the corporate
proceedings taken to authorize it to execute, deliver and
perform its obligations under the Credit Documents;
(b) evidence that the delivery of Credit Documents will not
contravene laws governing financial assistance or other
similar laws which affect the Credit Documents;
- 48 -
(c) evidence that the delivery of Credit Documents will not
contravene any material covenants or agreements to which any
Restricted Party is a party;
(d) consents that are required from the directors, shareholders or
partners of the Restricted Parties, either in connection with
the pledges of Pledged Shares or in connection with any
disposition of the Pledged Shares pursuant to the Trustee
Security.
7.1.6 OPINIONS - The Agent shall have received:
(a) the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the
Lenders, addressed to the Agent and the Lenders;
(b) the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Canadian counsel to the
Restricted Parties, addressed to the Agent, the Lenders and
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP;
(c) the opinion of Shearman & Sterling, US counsel to the
Restricted Parties, addressed to the Agent, the Lenders and
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP;
(d) the opinions of local counsel concerning the Security,
addressed to the Agent, the Lenders and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais
LLP.
7.1.7 OTHER MATTERS - The following conditions must also be satisfied:
(a) the Lenders must have received a certificate of NSCL, and
otherwise be satisfied, that no Material Adverse Change has
occurred since 30 June 2001;
(b) the Agent shall have received satisfactory evidence that NSCL
has obtained a Reference Debt Rating from each of Moody's and
S&P that expressly contemplates the completion of the Special
Distribution and the Acquisition on a basis consistent with
this Agreement and have received satisfactory written or
verbal confirmation from each of them that they do not intend
to amend their Reference Debt Ratings;
(c) the Agent shall have received payment of all fees owing to the
Agent, the Lenders, or any of them and reimbursement of all
expenses incurred, including but not limited to legal fees, in
each case up to the time of the initial Advance;
(d) the Agent shall have received such other documents as the
Lenders may reasonably require.
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7.1.8 DEADLINE FOR ADVANCE
The initial Advance under the Credits must be made on or before 31
August 2001, failing which the Credits may be terminated at the option of any of
the Lenders unless, before that date, other persons identified by the Borrower
and satisfactory to the remaining Lenders have agreed to become Lenders in place
of those Lenders who are unwilling to continue beyond that date.
7.2 CONDITIONS PRECEDENT TO ACQUISITION
The following conditions precedent must be satisfied at or before
the time of completion of the Acquisition, whether or not any Advance is made
for the purpose of funding the Acquisition, unless waived in accordance with
Section 12.7.2. Where delivery of documents is referred to, the documents shall
be delivered to the Agent, for and on behalf of the Lenders, and shall be in
full force and effect and in form and substance satisfactory to the Lenders.
7.2.1 ACQUISITION OF PACIFICA - The Agent shall have received:
(a) evidence that all Permits and other regulatory approvals
required in connection with the Acquisition have been obtained
and are in full force and effect, including but not limited to
evidence of compliance with the COMPETITION ACT (Canada) and
the INVESTMENT CANADA ACT;
(b) a certificate of NSCL with copies of all documents necessary
to fully and fairly disclose all material terms of the
Acquisition, including but not limited to the Pacifica
Arrangement, the terms of all of which must be satisfactory to
the Lenders;
(c) evidence that the Acquisition will be completed in accordance
with the terms of the Pacifica Arrangement and of any
applicable shareholders agreements, without waiver by NSCL of
any material condition therein;
(d) evidence that all Pacifica Bank Debt and other Debt of
Pacifica and its Subsidiaries not forming part of Permitted
Obligations has been or will be paid and performed in full and
cancelled concurrently with the Acquisition and that all
security held in connection therewith has been or will be
promptly released;
(e) a duly executed pledge of all Capital Stock of Pacifica,
certificates representing the Pledged Shares and executed
stock powers of attorney relating to those certificates;
- 50 -
(f) an updated version of Schedule F, to include all Subsidiaries
of Pacifica that will become Restricted Parties upon the
amalgamation of NSCL and Pacifica;
(g) a certificate of NSCL with copies of all documents necessary
to fully and fairly disclose all material terms of the
Pacifica Notes;
(h) evidence satisfactory to the Lenders that Pacifica is not
then, and will not reasonably be expected to be, required to
make an offer to purchase the Pacifica Notes as a consequence
of the Acquisition;
(i) evidence that gross proceeds of not less than US $200,000,000
have been received from the Bridge Loan and/or the NSCL Notes
and a certificate of NSCL with copies of all documents
necessary to fully and fairly disclose all material terms of
the Bridge Loan and/or the NSCL Notes, as applicable;
(j) evidence satisfactory to the Lenders that, as of the time of
completion of the Acquisition, neither the Bridge Loan nor the
NSCL Notes, as applicable, nor the Pacifica Notes are required
to be secured as a consequence of Advances under this
Agreement.
7.2.2 OTHER MATTERS - The following conditions must also be satisfied:
(a) the Lenders must be satisfied that no Material Adverse Change
has occurred with respect to either (i) NSCL and its
Subsidiaries taken as a whole, or (ii) Pacifica and its
Subsidiaries taken as a whole, in each case since 30 June
2001;
(b) the Agent shall have received payment of all fees owing to the
Agent, the Lenders, or any of them and reimbursement of all
expenses incurred, including but not limited to legal fees, in
each case up to the time of the Advance;
(c) the Agent shall have received such other documents as the
Lenders may reasonably require.
7.3 CONDITIONS PRECEDENT TO ALL ADVANCES
The obligation of the Lenders to make any Advance is subject to the
conditions precedent that:
(a) no Event of Default or (except in the case of a conversion of
a LIBOR Advance into a Base Rate Advance or US Prime Rate
Advance, the
- 51 -
conversion of a Bankers' Acceptance to a Prime Rate Advance or
an Advance for the purpose of paying a demand under an L/C)
Pending Event of Default has occurred and is continuing on the
Drawdown Date, or would result from making the Advance, and
without limiting the foregoing, all representations and
warranties of the Restricted Parties contained in this
Agreement, other than those expressly stated to be made as of
a specific date, are true on and as of the date of the
Advance;
(b) the Advance is in compliance with the terms of the Pacifica
Notes, Bridge Loan and/or NSCL Notes as applicable, Permitted
Senior Indebtedness and Permitted Subordinated Indebtedness,
to the extent they are outstanding (including but not limited
to any limitation on additional indebtedness contained in the
documentation relating to the Pacifica Notes, Bridge Loan,
NSCL Notes, Permitted Senior Indebtedness or Permitted
Subordinated Indebtedness ) and will not contravene or cause a
default under any of the terms of the Pacifica Notes, Bridge
Loan, NSCL Notes, Permitted Senior Indebtedness and Permitted
Subordinated Indebtedness;
(c) the Agent has received timely notice as required under Section
8.6;
(d) all other terms and conditions of this Agreement upon which an
Advance may be obtained are fulfilled.
ARTICLE VIII
ADVANCES
8.1 LENDERS' OBLIGATIONS RELATING TO L/CS AND OPERATING CREDITS 1 AND 2
Notwithstanding that L/Cs under Operating Credit 1 are issued by an
Issuing Bank, it is the intention of the parties that the credit risk and
exposure of any Lender be in accordance with its Proportionate Share of
Operating Credit 1 as adjusted in accordance with Section 8.2. Each Lender shall
(and hereby absolutely, unconditionally and irrevocably agrees to) indemnify the
Issuing Bank for that Lender's Proportionate Share under Operating Credit 1 of
any payment made by the Issuing Bank in respect of an L/C for which the Issuing
Bank is not immediately reimbursed by the Borrower, and shall do all such
things, including delivery of indemnity agreements and assignments to other
Lenders of Advances made by the Issuing Bank, as shall be required to ensure
that result. Any such action on the part of the Lenders shall be binding on the
Borrower. If the rating of the non-credit-enhanced senior debt of any Operating
Credit Lender by S&P or ▇▇▇▇▇'▇ is at any time less than "A" or "A2"
respectively, that Lender shall, if requested by an Issuing Bank, provide
Collateral (in a form
- 52 -
satisfactory to the Issuing Bank acting reasonably) to secure that Lender's
obligations under this clause.
In addition, notwithstanding that Advances under Operating Credit 2
are for the time being made by RBC and its participation in Advances under
Operating Credit 1 is reduced, and the participation of the other Operating
Credit Lenders is increased, in accordance with Section 8.2, it is the intention
of the parties that the ultimate credit risk and exposure of any Operating
Credit Lender in respect of the Operating Credit (including in respect of L/Cs
issued under either Operating Credit 1 or Operating Credit 2) be in accordance
with its Proportionate Share of the entire amount of the Operating Credit.
Accordingly, upon the Obligations becoming due and payable under Section 11.2,
each Operating Credit Lender shall (and hereby absolutely, unconditionally and
irrevocably agrees to) do all such things, including delivery of indemnity
agreements and assignments to other Operating Credit Lenders of Advances made by
RBC under Operating Credit 2 or assignments to RBC of Advances made by other
Operating Credit Lenders under Operating Credit 1 as shall be required to ensure
that result. Any such action on the part of the Operating Credit Lenders shall
be binding on the Borrower.
If any Lender fails to take the actions required under this Section,
the Agent may, without prejudice to the other rights of the Lenders, make such
adjustments to the payments to the defaulting Lender under this Agreement as are
necessary to compensate the other Lenders for the defaulting Lender's failure.
8.2 ADJUSTMENT OF PROPORTIONATE SHARES FOR SPECIFIC CREDITS
While RBC is the sole Lender making Advances under Operating Credit
2, its participation in Advances and payments (including commitment fees) under
Operating Credit 1 shall be reduced and shall be adjusted by the Agent from time
to time, having regard to the maximum principal amounts of Operating Credits 1
and 2 and the overall Commitment of RBC to Operating Credit, so that RBC's
separate Proportionate Shares of Operating Credits 1 and 2 reflect its overall
Proportionate Share of Operating Credit. The Agent shall amend Schedule E to
this Agreement from time to time to reflect such adjustments and notify NSCL and
all affected Lenders of the amendment.
8.3 EXCEPTIONS REGARDING PARTICULAR CREDITS
Subject to the provisions of Section 8.1 regarding the assignment of
interests under Operating Credit 2 in the event of acceleration of payment of
the Obligations, the provisions of this Agreement do not apply to Operating
Credit 2 to the extent that the provisions contemplate the participation in
Advances and payments under Operating Credit 2 by any Lender other than RBC. All
Advances under Operating Credit 2 shall be made solely by RBC and records
concerning Advances shall be maintained solely by RBC, but RBC shall
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provide information concerning such Advances to the Agent from time to time upon
request. All payments of principal, interest, fees and other amounts relating to
Operating Credit 2 shall be made solely to RBC. In addition, any notices by the
Borrower in connection with Operating Credit 2 shall be made to RBC, and notice
and minimum amount requirements for Advances shall not apply to Advances by way
of overdraft under Operating Credit 2.
In connection with Advances by way of overdraft, RBC shall ascertain
the positions or net positions of the Borrower's Canadian Dollar and US Dollar
accounts daily and, if the positions or net positions are debits in favour of
RBC, the debits will (if the Borrower is entitled to an Advance) be deemed to be
a Prime Rate Advance (in the case of Canadian Dollars) or a Base Rate Advance
(in the case of US Dollars) under Operating Credit 2 in the respective amounts
of the debits. If the positions or net positions are credits in favour of the
Borrower, the credits will be deemed to be repayments of Prime Rate Advances (in
the case of Canadian Dollars) or Base Rate Advances (in the case of US Dollars)
under Operating Credit 2 in the respective amounts of the credits.
Subject to further notice by the Agent, the functions of the Agent
that relate solely to Term Credit B are hereby delegated to the US Agent.
Without limiting the foregoing, Advances under Term Credit B shall be funded by
Term Credit B Lenders to the US Agent, payments of principal, interest, fees and
other amounts relating to Term Credit B shall be made to the US Agent, notices
by the Borrower in connection with Term Credit B shall be given to the US Agent
and matters relating to assignments by Term Credit B Lenders shall be
administered by the US Agent.
Similarly, references in this Agreement to the Lenders generally
shall, in the context of a particular Credit, be interpreted as referring only
to the Lenders who have Commitments relating to that Credit. For example, no
Lender other than a Term Credit A Lender shall have any right to receive
payments in respect of Term Credit A or any obligation to make Advances under
Term Credit A.
8.4 EVIDENCE OF INDEBTEDNESS
The Obligations resulting from Prime Rate Advances, Base Rate
Advances, US Prime Rate Advances and LIBOR Advances made by the Lenders shall be
evidenced by records maintained by the Agent, and by each Lender concerning
those Advances it has made. The Agent shall also maintain records of the
Obligations resulting from Advances by way of Bankers' Acceptances and L/Cs, and
each Lender shall also maintain records relating to Bankers' Acceptances that it
has accepted. The Issuing Bank shall also maintain records relating to L/Cs that
it has issued. The records maintained by the Agent, and by the Issuing Bank
relating to L/Cs, shall constitute, in the absence of manifest error, conclusive
evidence of the Obligations and all details relating thereto. The failure of the
Agent or any Lender to
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correctly record any such amount or date shall not, however, adversely affect
the obligation of the Borrower to pay the Obligations in accordance with this
Agreement.
8.5 CONVERSIONS
Subject to the other terms of this Agreement (including notice
requirements), the Borrower may from time to time convert all or any part of the
outstanding amount of any Advance into another form of Advance permitted by this
Agreement. A conversion does not, however, constitute a new advance of funds by
any Lender, but only an adjustment of the basis on which interest payable to the
Lenders will be calculated.
8.6 NOTICE OF ADVANCES AND PAYMENTS
The Borrower shall give the Agent irrevocable written notice, in the
form attached as Schedule A to this Agreement, of any request for any Advance to
it under the Credits. The Borrower shall also give the Agent irrevocable written
notice in the same form of any payment by it (whether resulting from repayment,
prepayment, rollover or conversion) of any Advance under the Credits, other than
a scheduled repayment under Term Credit A or Term Credit B.
Notice shall be given on or before the third Business Day (but not
earlier than the fifth Business Day) prior to the date of any Advance or
payment, except that notice shall be given in respect of an Advance by way of
L/C at such earlier time as the Issuing Bank may reasonably require so that it
has sufficient time to review the proposed form of L/C, and except that notice
in respect of a Prime Rate Advance, Base Rate Advance, US Prime Rate Advance or
payment thereof may be given on the Business Day before any such Advance or
payment. Any cancellation of part or all of any Credit shall only be effective
on three Business Days' notice as required by Section 8.7.
Notices shall be given not later than 1:00 p.m. (Toronto time) on
the date for notice. Payments (other than those being made solely from the
proceeds of rollovers and conversions) must be made prior to 1:00 p.m. (Toronto
time) on the date for payment. If a notice or payment is not given or made by
those times, it shall be deemed to have been given or made on the next Business
Day, unless all Lenders affected by the late notice or payment agree, in their
sole discretion, to accept a notice or payment at a later time as being
effective on the date it is given or made.
8.7 PREPAYMENTS AND REDUCTIONS
Subject to giving notice required by Section 8.6 and to the other
provisions of this Agreement, the Borrower may from time to time repay Advances
outstanding under any Credit without penalty, except that (i) LIBOR Advances may
not be paid prior to the end of
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the applicable LIBOR Periods unless the Borrower indemnifies the Lenders for any
loss or expense that the Lenders incur as a result, including any breakage costs
and (ii) Bankers' Acceptances may not be paid prior to their respective maturity
dates.
The Borrower may from time to time, by giving not less than three
Business Days' express written notice to the Agent and paying all accrued and
unpaid commitment fees to the effective date of cancellation, irrevocably notify
the Agent of the cancellation in whole or in part of the undrawn amount any
Credit by an amount which shall be a minimum of $1,000,000 and a whole multiple
of $100,000, or the equivalent thereof in US Dollars. The Borrower shall have no
right to any increase in the committed amount of that Credit thereafter.
8.8 PRIME RATE, BASE RATE, US PRIME RATE AND LIBOR ADVANCES
Upon timely fulfilment of all applicable conditions as set forth in
this Agreement, the Agent, in accordance with the procedures set forth in
Section 8.11, will make the requested amount of a Prime Rate Advance, Base Rate
Advance, US Prime Rate Advance or LIBOR Advance available to the Borrower on the
Drawdown Date requested by the Borrower by transferring such amount to the
Designated Account. Each Prime Rate Advance shall be in an aggregate minimum
amount of $1,000,000 and in a whole multiple of $100,000. Each Base Rate Advance
or US Prime Rate Advance shall be in an aggregate minimum amount of US
$1,000,000 and in a whole multiple of US $100,000. Each LIBOR Advance shall be
in minimum amount of US $5,000,000 and a whole multiple of US $500,000, except
for LIBOR Advances under Operating Credit 2, each of which shall be in minimum
amount of US $1,000,000 and a whole multiple of US $100,000. The Borrower shall
pay interest to the Agent for the account of the Lenders at the Branch of
Account on any such Advances outstanding to it from time to time hereunder at
the applicable rate of interest specified in Sections 2.5, 3.5 and 4.5.
Interest on Prime Rate Advances, Base Rate Advances and US Prime
Rate Advances shall be payable monthly on each Interest Payment Date. Interest
on LIBOR Advances shall be payable on the last day of the applicable LIBOR
Period and, if the LIBOR Period is longer than three months, every three months
after the date of the relevant LIBOR Advance. All interest shall accrue from day
to day and shall be payable in arrears for the actual number of days elapsed
from and including the date of Advance or the previous date on which interest
was payable, as the case may be, to but excluding the date on which interest is
payable, both before and after maturity, default and judgment, with interest on
overdue interest at the same rate payable on demand. Overdue interest with
respect to a LIBOR Advance shall, upon the expiry of the LIBOR Period applicable
to such LIBOR Advance, bear interest, payable on demand, calculated at the rates
applicable to Base Rate Advances.
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Interest calculated with reference to the Prime Rate and the US
Prime Rate shall be calculated monthly on the basis of a calendar year. Interest
calculated with reference to the Base Rate shall be calculated monthly on the
basis of a year of 365 days. Interest calculated with reference to the LIBO Rate
shall be calculated on the basis of a year of 360 days for a term equal to the
applicable LIBOR Period or, if a LIBOR Period is longer than three months, every
three months. Each rate of interest which is calculated with reference to a
period (the "DEEMED INTEREST PERIOD") that is less than the actual number of
days in the calendar year of calculation is, for the purposes of the INTEREST
ACT (Canada), equivalent to a rate based on a calendar year calculated by
multiplying such rate of interest by the actual number of days in the calendar
year of calculation and dividing by the number of days in the deemed interest
period.
8.9 LIBOR PERIODS
The Borrower may select, by irrevocable notice to the Agent, LIBOR
Periods of one, two, three or six months to apply to any particular LIBOR
Advance, provided that the Agent, in circumstances of market disruption or
illiquidity, shall have the discretion to restrict the LIBOR Period. LIBOR
Periods of other lengths shall also be available at the discretion of the
Lenders from time to time. No LIBOR Period may end on a date which is not a
Business Day or on a date which is later than the date on which the principal
amount of any Credit is required to be reduced (in whole or in part) if that
would adversely affect the Borrower's ability to cause the reduction of the
Credit in question. The Borrower shall from time to time select and give notice
to the Agent of the LIBOR Period for a LIBOR Advance which shall commence upon
the making of the LIBOR Advance or at the expiry of any outstanding LIBOR Period
applicable to a LIBOR Advance that is being rolled over. If the Borrower fails
to select and give the Agent notice of a LIBOR Period for a LIBOR Advance in
accordance with Section 8.6, the Lenders shall be deemed to have made a Base
Rate Advance to the Borrower to replace the maturing LIBO Rate Advance. A
rollover of a LIBOR Advance does not constitute a new advance of funds by the
Lenders, but rather an adjustment of the basis on which interest is charged.
8.10 TERMINATION OF LIBOR ADVANCES
If at any time a Lender determines in good faith and on reasonable
grounds (which determination shall be conclusive and binding on the Borrower)
that:
(a) adequate and reasonable means do not exist for ascertaining
the LIBO Rate applicable to a LIBOR Advance;
(b) the LIBO Rate does not adequately reflect the effective cost
to the Lender of making or maintaining a LIBOR Advance, except
as a result of the Lender
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failing to obtain a deposit in the amount and for the term of
the LIBOR Advance; or
(c) it cannot readily obtain or retain funds in the London
interbank market in order to fund or maintain any LIBOR
Advance or cannot otherwise perform its obligations hereunder
with respect to any LIBOR Advance,
then upon written notice by the Agent to the Borrower,
(d) the right of the Borrower to request LIBOR Advances from that
Lender shall be and remain suspended until the Agent notifies
the Borrower that any condition causing such determination no
longer exists, and
(e) if the Lender is prevented from maintaining a LIBOR Advance,
the Borrower shall, at its option, either repay the LIBOR
Advances owing by it to that Lender or convert the LIBOR
Advances into other forms of Advance which are permitted by
this Agreement, but the Borrower shall be responsible for any
loss or expense that the Lender incurs as a result, including
breakage costs if the Lender is prevented from maintaining a
LIBOR Advance for reasons beyond its control.
8.11 CO-ORDINATION OF PRIME RATE, BASE RATE, US PRIME RATE AND LIBOR
ADVANCES
Each Lender shall advance its Proportionate Share of each Prime Rate
Advance, Base Rate Advance, US Prime Rate Advance and LIBOR Advance in
accordance with the following provisions:
(a) the Agent shall advise each Lender of its receipt of a notice
from the Borrower pursuant to Section 8.6 on the day such
notice is received and shall, as soon as possible, advise each
Lender of such Lender's Proportionate Share of any Advance
requested by the notice;
(b) each Lender shall deliver its Proportionate Share of the
Advance to the Agent not later than 11:00 a.m. (Toronto time)
on the Drawdown Date;
(c) if the Agent determines that all the conditions precedent to
an Advance specified in this Agreement have been met, it shall
advance to the Borrower the amount delivered by each Lender by
transferring it to the Designated Account prior to 2:00 p.m.
(Toronto time) on the Drawdown Date, but if the conditions
precedent to the Advance are not met by 2:00 p.m. (Toronto
time) on the Drawdown Date, the Agent shall return the funds
to the Lenders or
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invest them in an overnight investment as orally instructed
by each Lender until such time as the Advance is made; and
(d) if the Agent determines that a Lender's Proportionate Share of
an Advance would not be a whole multiple of $100,000 or US
$100,000, as the case may be, the amount to be advanced by
that Lender may be increased or reduced by the Agent in its
sole discretion to the extent necessary to reflect the
requirements of this sub-paragraph.
8.12 EXECUTION OF BANKERS' ACCEPTANCES
To facilitate the acceptance of Bankers' Acceptances hereunder, the
Borrower hereby appoints each Lender as its attorney to sign and endorse on its
behalf, as and when considered necessary by the Lender, an appropriate number of
orders in the form prescribed by that Lender.
Each Lender may, at its option, execute any order in handwriting or
by the facsimile or mechanical signature of any of its authorized officers, and
the Lenders are hereby authorized to accept or pay, as the case may be, any
order of the Borrower which purports to bear such a signature notwithstanding
that any such individual has ceased to be an authorized officer of the Lender.
Any such order or Bankers' Acceptance shall be as valid as if he or she were an
authorized officer at the date of issue of the order or Bankers' Acceptance.
Any order or Bankers' Acceptance signed by a Lender as attorney for
the Borrower, whether signed in handwriting or by the facsimile or mechanical
signature of an authorized officer of a Lender may be dealt with by the Agent or
any Lender to all intents and purposes and shall bind the Borrower as if duly
signed and issued by the Borrower.
The receipt by the Agent of a request for an Advance by way of
Bankers' Acceptances shall be each Lender's sufficient authority to execute, and
each Lender shall, subject to the terms and conditions of this Agreement,
execute orders in accordance with such request and the advice of the Agent given
pursuant to Section 8.15, and the orders so executed shall thereupon be deemed
to have been presented for acceptance.
8.13 SALE OF BANKERS' ACCEPTANCES
It shall be the responsibility of each Lender to arrange, in
accordance with normal market practice, for the sale on each Drawdown Date of
the Bankers' Acceptances issued by the Borrower and to be accepted by that
Lender, failing which the Lender shall purchase its Bankers' Acceptances.
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In accordance with the procedures set forth in Section 8.15, the
Agent will make the net proceeds of the requested Advance by way of Bankers'
Acceptances received by it from the Lenders available to the Borrower on the
Drawdown Date by transferring such amount to the Designated Account.
Notwithstanding the foregoing, if in the determination of the
Majority Lenders acting reasonably a market for Bankers' Acceptances does not
exist at any time, or the Lenders cannot for other reasons, after reasonable
efforts, readily sell Bankers' Acceptances or perform their other obligations
under this Agreement with respect to Bankers' Acceptances, then upon written
notice by the Agent to the Borrower, the Borrower's right to request Advances by
way of Bankers' Acceptances shall be and remain suspended until the Agent
notifies the Borrower that any condition causing such determination no longer
exists.
8.14 SIZE AND MATURITY OF BANKERS' ACCEPTANCES AND ROLLOVERS
Each Advance of Bankers' Acceptances shall be in a minimum amount of
$5,000,000 and each Bankers' Acceptance shall be in the amount of $100,000 or
whole multiples thereof. Each Bankers' Acceptance shall have a term of one, two,
three or six months after the date of acceptance of the order by a Lender,
provided that the Agent, in circumstances of market disruption or illiquidity,
shall have the discretion to restrict the term or maturity dates of Bankers'
Acceptances. No Bankers' Acceptance may mature on a date which is not a Business
Day or on a date which is later than the date on which the principal amount of
any Credit is required to be reduced (in whole or in part) if that would
adversely affect the Borrower's ability to cause the reduction of the Credit in
question. The face amount at maturity of a Bankers' Acceptance may be renewed as
a Bankers' Acceptance or converted into another form of Advance permitted by
this Agreement.
8.15 CO-ORDINATION OF BA ADVANCES
Each Lender shall advance its Proportionate Share of each Advance by
way of Bankers' Acceptances in accordance with the provisions set forth below.
8.15.1 The Agent, promptly following receipt of a notice from the Borrower
pursuant to Section 8.6 requesting an Advance by way of Bankers' Acceptances,
shall advise each Lender of the aggregate face amount and term(s) of the
Bankers' Acceptances to be accepted by it, which term(s) shall be identical for
all Lenders. The aggregate face amount of Bankers' Acceptances to be accepted by
a Lender shall be determined by the Agent by reference to the respective
Commitments of the Lenders, except that, if the face amount of a Bankers'
Acceptance would not be Cdn. $100,000 or a whole multiple thereof, the face
amount shall be increased or reduced by the Agent in its sole discretion to the
nearest whole multiple of Cdn. $100,000.
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8.15.2 Each Lender shall transfer to the Agent at the Branch of Account for
value on each Drawdown Date immediately available Cdn. Dollars in an aggregate
amount equal to the BA Discount Proceeds of all Bankers' Acceptances accepted
and sold or purchased by the Lender on such Drawdown Date net of the applicable
Bankers' Acceptance Fee and net of the amount required to pay any of its
previously accepted Bankers' Acceptances that are maturing on the Drawdown Date
or any of its other Advances that are being converted to Bankers' Acceptances on
the Drawdown Date.
8.15.3 If the Agent determines that all the conditions precedent to
an Advance specified in this Agreement have been met, it shall advance to the
Borrower the amount delivered by each Lender by transferring it to the
Designated Account prior to 2:00 p.m. (Toronto time) on the Drawdown Date, but
if the conditions precedent to the Advance are not met by 2:00 p.m. (Toronto
time) on the Drawdown Date, the Agent shall return the funds to the Lenders or
invest them in an overnight investment as orally instructed by each Lender until
such time as the Advance is made.
8.15.4 Notwithstanding any other provision hereof, for the purpose of
determining the amount to be transferred by a Lender to the Agent for the
account of the Borrower in respect of the sale of any Bankers' Acceptance issued
by the Borrower and accepted by such Lender, the proceeds of sale thereof shall
be deemed to be an amount equal to the BA Discount Proceeds calculated with
respect thereto. Accordingly, in respect of any particular Bankers' Acceptance
accepted by it, a Lender in addition to its entitlement to retain the applicable
Bankers' Acceptance Fee for its own account (i) shall be entitled to retain for
its own account the amount, if any, by which the actual proceeds of sale thereof
exceed the BA Discount Proceeds calculated with respect thereto, and (ii) shall
be required to pay out of its own funds the amount, if any, by which the actual
proceeds of sale thereof are less than the BA Discount Proceeds calculated with
respect thereto.
8.15.5 Whenever the Borrower requests an Advance that includes Bankers'
Acceptances, each Lender that is not permitted by applicable law or by customary
market practice to accept a Bankers' Acceptance or any other Lender that in any
instance chooses not to accept a Bankers' Acceptance (each, a "NON BA LENDER")
shall, in lieu of accepting its PRO RATA amount of such Bankers' Acceptances,
make available to the Borrower on the Drawdown Date a loan (a "BA EQUIVALENT
LOAN") in Canadian Dollars and in an amount equal to the BA Discount Proceeds of
the Bankers' Acceptances that the Non BA Lender would have been required to
accept on the Drawdown Date if it were able to accept Bankers' Acceptances. Each
Non BA Lender shall also be entitled to deduct from the BA Equivalent Loan an
amount equal to the Bankers Acceptance Fee that would have been applicable had
it been able to accept Bankers' Acceptances. The BA Equivalent Loan shall have a
term equal to the term of the Bankers' Acceptances that the Non BA Lender would
otherwise have accepted and the Borrower shall, at the end of that term, be
obligated to pay the Non BA Lender an amount equal to the aggregate face amount
of the Bankers' Acceptances that it would
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otherwise have accepted. All provisions of this Agreement applicable to Bankers'
Acceptances and Lenders that accept Bankers' Acceptances shall apply MUTATIS
MUTANDIS to BA Equivalent Loans and Non BA Lenders and, without limiting the
foregoing, Advances shall include BA Equivalent Loans.
8.16 PAYMENT OF BANKERS' ACCEPTANCES
The Borrower shall provide for the payment to the Agent at the
Branch of Account for the account of the applicable Lenders of the full face
amount of each Bankers' Acceptance accepted for its account on the earlier of
(i) the date of maturity of a Bankers' Acceptance and (ii) the date on which any
Obligations become due and payable pursuant to Section 11.2. The Lenders shall
be entitled to recover interest from the Borrower at a rate of interest per
annum equal to the rate applicable to Prime Rate Advances under the Credit under
which the Bankers' Acceptance was issued, compounded monthly, upon any amount
payment of which has not been provided for by the Borrower in accordance with
this Section. Interest shall be calculated from and including the date of
maturity of each Bankers' Acceptance up to but excluding the date such payment,
and all interest thereon, both before and after demand, default and judgment, is
provided for by the Borrower.
If the Borrower provides cash in response to any Obligations
becoming due and payable under Section 11.2, it shall be entitled to receive
interest on the cash provided in accordance with Section 14.16 as long as the
cash is held as Collateral.
8.17 DEEMED ADVANCE - BANKERS' ACCEPTANCES
Except for amounts which are paid from the proceeds of a rollover of
a Bankers' Acceptance or for which payment has otherwise been funded by the
Borrower, any amount which a Lender pays to any third party on or after the date
of maturity of a Bankers' Acceptance in satisfaction thereof or which is owing
to the Lender in respect of such a Bankers' Acceptance on or after the date of
maturity of such a Bankers' Acceptance, shall be deemed to be a Prime Rate
Advance to the Borrower under this Agreement. Each Lender shall forthwith give
notice of the making of such a Prime Rate Advance to the Borrower and the Agent
(which shall promptly give similar notice to the other Lenders). Interest shall
be payable on such Prime Rate Advances in accordance with the terms applicable
to Prime Rate Advances.
8.18 WAIVER
The Borrower shall not claim from a Lender any days of grace for the
payment at maturity of any Bankers' Acceptances presented and accepted by the
Lender pursuant to this Agreement. The Borrower waives any defence to payment
which might otherwise exist if for any reason a Bankers' Acceptance shall be
held by a Lender in its own right at the maturity
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thereof, and the doctrine of merger shall not apply to any Bankers' Acceptance
that is at any time held by a Lender in its own right.
8.19 DEGREE OF CARE
Any executed orders to be used as Bankers' Acceptances shall be held
in safekeeping with the same degree of care as if they were the Lender's own
property, and shall be kept at the place at which such orders are ordinarily
held by such Lender.
8.20 INDEMNITY
The Borrower shall indemnify and hold the Lenders, and each of them,
harmless from any loss, cost, damage or expense with respect to any Bankers'
Acceptance dealt with by the Lenders for the Borrower's account, but shall not
be obliged to indemnify a Lender for any loss, cost, damage or expense caused by
the gross negligence or wilful misconduct of that Lender.
8.21 OBLIGATIONS ABSOLUTE
The obligations of the Borrower with respect to Bankers' Acceptances
under this Agreement shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any order accepted
by a Lender as a Bankers' Acceptance; or
(ii) the existence of any claim, set-off, defence or other right
which the Borrower may have at any time against the holder of
a Bankers' Acceptance, a Lender or any other person or entity,
whether in connection with this Agreement or otherwise.
8.22 SHORTFALL ON DRAWDOWNS, ROLLOVERS AND CONVERSIONS
The Borrower agrees that:
(a) the difference between the amount of an Advance requested by
the Borrower by way of Bankers' Acceptances and the actual
proceeds of the Bankers' Acceptances;
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(b) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to pay a maturing Bankers'
Acceptance, if a Bankers' Acceptance is being rolled over; and
(c) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to repay any Advance which
is being converted to a Bankers' Acceptance;
shall be funded and paid by the Borrower from its own resources, by 11:00 a.m.
on the day of the Advance or may be advanced as a Prime Rate Advance under a
Credit if the Borrower is otherwise entitled to an Advance under the Credit.
8.23 PROHIBITED USE OF L/CS AND BANKERS' ACCEPTANCES
The Borrower shall not enter into any agreement or arrangement of
any kind with any person to whom Bankers' Acceptances have been delivered
whereby the Borrower undertakes to replace such Bankers' Acceptances on a
continuing basis with other Bankers' Acceptances, nor shall the Borrower
directly or indirectly take, use or provide Bankers' Acceptances or L/Cs as
security for loans or advances from any other person.
8.24 ISSUANCE AND MATURITY OF L/CS
A request for an Advance by way of L/C shall be made by a Borrower
in accordance with Section 8.6, except that a copy of the request shall be sent
directly to the Issuing Bank. The Agent shall promptly notify the Lenders of the
receipt of a request relating to Operating Credit 1, but L/Cs under Operating
Credit 1 shall only be issued by the Issuing Bank as fronting bank for all
Operating Credit Lenders. A request shall include the details of the L/C to be
issued. The Issuing Bank shall promptly notify the Borrower of any comment
concerning the form of the L/C requested by the Borrower and shall, if the
Borrower is otherwise entitled to an Advance, issue the L/C to the Borrower at
the branch where its account is maintained on the Drawdown Date or as soon
thereafter as the Issuing Bank is satisfied with the form of L/C to be issued.
Each L/C issued under this Agreement shall have a term which is not
more than one year after its issuance date or renewal date and does not extend
beyond the then-current maturity date of the Operating Credit. Collateral shall
be provided for the benefit of the Lenders promptly upon demand by the Agent. An
L/C may be renewed by the Borrower subject to complying with the terms of this
Agreement applicable to an Advance by way of L/C.
8.25 PAYMENT OF L/C FEES
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Payment of L/C Fees and the fronting fee applicable to L/Cs shall be
made to the Agent at the Branch of Account for the account of the Lenders (other
than the fronting fee under Operating Credit 1, which shall be solely for the
Issuing Bank's account), and shall be made at the time of issuance or renewal of
an L/C.
8.26 PAYMENT OF L/Cs
The Borrower shall provide for the payment to the Issuing Bank at
the branch where the L/C was issued of the full face amount of each L/C (or the
amount actually paid in the case of a partial payment) on the earlier of (i) the
date on which the Issuing Bank makes a payment to the beneficiary of an L/C, and
(ii) the date on which any Obligations become due and payable pursuant to
Section 11.2. The Lenders shall be entitled to recover interest from the
Borrower at a rate of interest per annum equal to the rate applicable to Prime
Rate Advances (in the case of Canadian Dollar L/Cs) or Base Rate Advances (in
the case of US Dollar L/Cs), compounded monthly, upon any amount payment of
which has not been provided for by the Borrower in accordance with this Section.
Interest shall be calculated from and including the date on which the Issuing
Bank makes a payment to the beneficiary of an L/C, up to but excluding the date
such payment, and all interest thereon, both before and after demand, default
and judgment, is provided for by the Borrower.
The obligation of the Borrower to reimburse the Lenders for a
payment to a beneficiary of an L/C shall be absolute and unconditional, without
prejudice to the Borrower's right to subsequently claim damages for matters
arising from a Lender's wilful misconduct or gross negligence, and shall not be
reduced by any demand or other request for payment of an L/C (a "DEMAND") paid
or acted upon in good faith and in conformity with laws, regulations or customs
applicable thereto being invalid, insufficient, fraudulent or forged, nor shall
the Borrower's obligation be subject to any defence or be affected by any right
of set-off, counter-claim or recoupment which the Borrower may now or hereafter
have against the beneficiary, the Lender or any other person for any reason
whatsoever, including the fact that the Issuing Bank paid a Demand or Demands
(if applicable) aggregating up to the amount of the L/C notwithstanding any
contrary instructions from the Borrower to the Issuing Bank or the occurrence of
any event including, but not limited to, the commencement of legal proceedings
to prohibit payment by the Issuing Bank of a Demand. Any action, inaction or
omission taken or suffered by the Issuing Bank under or in connection with an
L/C or any Demand, if in good faith and in conformity with laws, regulations or
customs applicable thereto shall be binding on the Borrower and shall not place
any Lender under any resulting liability to the Borrower. Without limiting the
generality of the foregoing, the Issuing Bank may receive, accept, or pay as
complying with the terms of the L/C, any Demand otherwise in order which may be
signed by, or issued to, any administrator, executor, trustee in bankruptcy,
receiver or other person or entity acting as the representative or in place of,
the beneficiary.
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If the Borrower provides cash in response to any Obligations
becoming due and payable under Section 11.2, it shall be entitled to receive
interest on the cash provided in accordance with Section 14.16 as long as the
cash is held as Collateral.
8.27 DEEMED ADVANCE - L/Cs
Except for amounts which have been funded by the Borrower, any
amount which the Issuing Bank pays to any third party in respect of an L/C in
satisfaction or partial satisfaction hereof shall also be deemed to be a Prime
Rate Advance in the case of Canadian Dollar L/Cs or a Base Rate Advance in the
case of US Dollar L/Cs, in each case under the Credit under which the L/C was
issued. The Issuing Bank shall forthwith give notice of the making of such an
Advance to the Borrower and the Agent (which shall promptly give similar notice
to the other Lenders in the case of Operating Credit 1). Interest shall be
payable on such Advances in accordance with the terms applicable to such
Advances.
8.28 PROHIBITED RATES OF INTEREST
It is the intention of the parties to comply with applicable usury
laws now or hereafter enacted. Accordingly, notwithstanding any other provisions
of this Agreement or any other Credit Document, in no event shall any Credit
Document require the payment or permit the collection of interest or other
amounts in an amount or at a rate in excess of the amount or rate that is
permitted by law or in an amount or at a rate that would result in the receipt
by the Lenders or the Agent of interest at a criminal rate, as the terms
"interest" and "criminal rate" are defined under the CRIMINAL CODE (Canada).
Where more than one such law is applicable to any Restricted Party, that
Restricted Party shall not be obliged to make payment in an amount or at a rate
higher than the lowest amount or rate permitted by such laws. If from any
circumstances whatever, fulfilment of any provision of any Credit Document shall
involve transcending the limit of validity prescribed by applicable law for the
collection or charging of interest, the obligation to be fulfilled shall be
reduced to the limit of such validity, and if from any such circumstances the
Agent or the Lenders shall ever receive anything of value as interest or deemed
interest under any Credit Document in an amount that would exceed the highest
lawful rate of interest permitted by applicable law, such amount that would be
excessive interest shall be applied to the reduction of the principal amount of
the relevant Credit, and not to the payment of interest, or if such excessive
interest exceeds the unpaid principal balance of the relevant Credit, the amount
exceeding the unpaid balance shall be refunded to the Borrower. In determining
whether or not the interest paid or payable under any specified contingency
exceeds the highest lawful rate, the Restricted Parties, the Agent and the
Lenders shall, to the maximum extent permitted by applicable law, (a)
characterize any non-principal payment as an expense, fee or premium rather than
as interest, (b) exclude voluntary prepayments and the effects thereof, (c)
amortize, prorate, allocate and spread the total amount of interest throughout
the term of such indebtedness so that interest thereon does not exceed the
maximum amount permitted by applicable law,
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and/or (d) allocate interest between portions of such indebtedness to the end
that no such portion shall bear interest at a rate greater than that permitted
by applicable law. For the purposes of the application of the CRIMINAL CODE
(Canada), the effective annual rate of interest shall be determined in
accordance with generally accepted actuarial practices and principles and in the
event of any dispute, a certificate of a Fellow of the Canadian Institute of
Actuaries appointed by the Agent shall be conclusive for the purpose of such
determination.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS AND WARRANTIES
Each Restricted Party represents and warrants to the Lenders as
specified below.
9.1.1 CORPORATE MATTERS
(a) It is a duly incorporated or amalgamated and validly existing
corporation or a duly organized and validly existing
partnership, as the case may be, and has the power and
authority to enter into and perform its obligations under any
Credit Documents to which it is or will be a party, to own its
Property and to carry on the business in which it is engaged.
(b) It is in compliance with the requirements for carrying on
business in all jurisdictions in which it carries on business,
and has all Permits required as of the date hereof, to enter
into and perform its obligations under any Credit Documents to
which it is or will be a party, to own its Property and to
carry on the business in which it is engaged, except to the
extent that the non-compliance or absence of Permits would not
have a material adverse effect on the ability of the
Restricted Parties, taken as a whole, to do so.
(c) The entering into and the performance by it of the Credit
Documents to which it is or will be a party (i) have been duly
authorized by all necessary corporate action on its part, (ii)
do not and will not violate its Constating Documents, any
Requirement of Law, any Permit or any Contract to which it is
a party, and (iii) will not result in the creation of any
Encumbrance on any of its Property or require it to create any
Encumbrance on any of its Property other than Permitted
Encumbrances and will not result in the forfeiture of any of
its Property.
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(d) Its Constating Documents do not restrict the power of its
directors to borrow money, to give financial assistance by way
of loan, guarantee or otherwise, or to encumber any or all of
its present and future Property to secure the Obligations,
except for restrictions under any Constating Document which
have been complied with in connection with the Credit
Documents and the Permitted Obligations.
(e) It is not in violation of any term of its Constating Documents
and is not in violation of any Requirement of Law, Permit or
Contract, the violation of which would materially and
adversely affect its ability to own its Property and conduct
its business, nor will its execution, delivery and performance
of any Credit Documents to which it is a party result in any
such violation.
(f) It has good and marketable title to or the right to use or
good, valid and subsisting leases or licenses in respect of
all of the Property necessary for the operation of its
business, free and clear of any Encumbrances, other than
Permitted Encumbrances, and no person has any agreement or
right to acquire any of its Property out of the ordinary
course of business.
9.1.2 CREDIT DOCUMENTS
(a) The Credit Documents to which it is or will be a party have
been or will be duly executed and delivered by it and, when
executed and delivered, will constitute legal, valid and
binding obligations enforceable against it in accordance with
their respective terms, subject to the availability of
equitable remedies and the effect of bankruptcy, insolvency
and similar laws affecting the rights of creditors generally.
(b) As of the date of this Agreement, no Event of Default or
Pending Event of Default has occurred and is continuing.
(c) From and after the date on which the relevant Security is
delivered, the Lenders will have the benefit of legal, valid
and enforceable security upon all of its present and future
Property subject only to Permitted Encumbrances, the
availability of equitable remedies, and the effect of
bankruptcy, insolvency and similar laws affecting the rights
of creditors generally.
9.1.3 LITIGATION, FINANCIAL STATEMENTS ETC.
(a) As of the date of execution of this Agreement, there are no
litigation, arbitration or administrative proceedings or
industrial or labour disputes outstanding and, to its
knowledge after having made reasonable inquiry, there
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are no proceedings or disputes pending or threatened, against
it which, in either case, could constitute a Material Adverse
Change, except as disclosed on Schedule J.
(b) All of the historical financial statements which have been
furnished to the Lenders, or any of them, in connection with
this Agreement are complete and, to its knowledge after
reasonable inquiry, fairly present the financial position of
NSCL on a consolidated basis as of the dates referred to
therein and have been prepared in accordance with GAAP except,
in the case of quarterly financial statements, notes to the
statements and normal year-end audit adjustments required by
GAAP are not included.
(c) All projections, including forecasts, budgets, PRO FORMAS and
business plans provided to the Agent were prepared in good
faith based on assumptions which were believed to be
reasonable and were believed at the time of preparation to be
reasonable estimates of the prospects of the businesses
referred to therein, and all material changes in the estimates
of the prospects of those businesses occurring between the
time of preparation and the date of this Agreement have been
disclosed to the Lenders in writing.
(d) As of the date of execution of this Agreement, it has no
liabilities (contingent or other) or other obligations of the
type required to be included in the consolidated financial
statements of the Restricted Parties in accordance with GAAP
which are not fully included on NSCL's audited financial
statements provided to the Lenders for its fiscal year ended
31 December 2000 or NSCL's unaudited financial statements for
the fiscal period ended 30 June 2001, other than liabilities
and obligations incurred thereafter in the ordinary course of
its business and the Obligations, none of which constitutes a
Material Adverse Change.
(e) It is not in default under any of the Permitted Encumbrances
to an extent that would materially and adversely affect the
financial position of NSCL on a consolidated basis, or the
Restricted Party's ability to carry on its business or perform
its obligations under the Credit Documents to which it is or
will be a party.
(f) There is no fact that it has not disclosed to the Agent in
writing that materially and adversely affects its ability to
perform its obligations under the Credit Documents to which it
is or will be a party.
9.1.4 OTHER DEBT
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(a) This Agreement is in compliance with the terms of the Pacifica
Notes, Bridge Loan, NSCL Notes, Permitted Senior Indebtedness
and Permitted Subordinated Indebtedness to the extent they are
outstanding obligations of a Restricted Party (including but
not limited to any limitation on additional indebtedness
contained in the documentation relating to the Pacifica Notes,
Bridge Loan, NSCL Notes, Permitted Senior Indebtedness or
Permitted Subordinated Indebtedness) and will not contravene
or cause a default under any of the Pacifica Notes, Bridge
Loan, NSCL Notes, Permitted Senior Indebtedness and Permitted
Subordinated Indebtedness.
(b) All Obligations are "Permitted Indebtedness" under the terms
of the Pacifica Notes, Bridge Loan, NSCL Notes, Permitted
Senior Indebtedness and Permitted Subordinated Indebtedness to
the extent they are outstanding
obligations of a Restricted Party.
(c) All Obligations are "Senior Indebtedness" and "Designated
Senior Indebtedness" (or equivalent terms) under the terms of
any outstanding Permitted Subordinated Indebtedness and are
entitled to the benefit of all subordination provisions under
the terms of any outstanding Permitted Subordinated
Indebtedness.
(d) If the Acquisition is completed, the Credits will (when NSCL
is amalgamated with Pacifica) constitute "New Credit
Facilities" under the terms of the Pacifica Notes and the
Bridge Loan and/or the NSCL Notes as applicable, and the
Threshold Amount will be not less than $700,000,000 at the
time the Acquisition is completed.
9.1.5 PROPERTY AND CAPITAL STOCK
(a) Schedule F fully and fairly describes as of the date of this
Agreement, the ownership of all of its issued and outstanding
Capital Stock, the Capital Stock in Restricted Parties and
other persons that it owns, the nature of the business that it
carries on, the locations of its head office (and chief
executive office, if different) and its freehold (or fee as
the case may be) and leasehold real property, and the
jurisdictions in which its other Property (other than accounts
receivable) are located.
(b) The Pledged Shares are validly issued as fully paid and
non-assessable Capital Stock of the respective Restricted
Parties or other issuers.
(c) The consents of the shareholders or directors of the
respective Restricted Parties or other issuers and any other
consents that will be delivered at or
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prior to the time that the Pledged Shares become part of the
Trustee Security are the only consents that are necessary or
desirable in connection with the pledges of the Pledged Shares
as part of the Trustee Security (including the enforcement of
the pledges), and will be kept in full force and effect as
long as they remain necessary or desirable.
(d) It owns or is licensed or otherwise has the right to use all
Intellectual Property that is necessary for the operation of
its business, to its knowledge without conflict with the
rights of any other person, except as specified on Schedule K.
All Intellectual Property that it owns is listed on Schedule
K, subject to modifications made by NSCL to the Agent in
writing from time to time.
9.1.6 ENVIRONMENTAL MATTERS
(a) To its knowledge having made all due inquiry, (i) there are no
active or abandoned underground storage tanks located on any
land which it occupies or controls, except those that comply
with applicable Requirements of Law, (ii) there are no
Hazardous Materials located on, above or below the surface of
any land which it occupies or controls or contained in the
soil or water constituting such land (except those that are in
compliance with applicable Requirements of Law), (iii) no
release of Hazardous Materials has occurred on or from such
land (except those minor items that are in accordance with
Permits or otherwise do not violate applicable Requirements of
Law) and (iv) no land that it occupies or controls has been
used as a landfill or waste disposal site, except in each case
as disclosed on Schedule J or as would not reasonably be
expected to cause a Material Adverse Change.
(b) Its business and Property have been and are being owned,
occupied and operated in substantial compliance with
applicable Requirements of Law intended to protect the
environment (including, without limitation, laws respecting
the disposal or emission of Hazardous Materials), to the best
of its knowledge after reasonable inquiry there are no
breaches thereof and no enforcement actions in respect thereof
are threatened or pending which, in any such case, would
reasonably be expected to cause a Material Adverse Change.
9.1.7 TAXES AND WITHHOLDINGS
(a) It has (i) duly filed on a timely basis all material tax
returns, elections and reports required to be filed by it and
has paid, collected and remitted all material Taxes due and
payable, collectible or remittable by it, and (ii) made
adequate provision for material Taxes payable by it for the
current period and any previous period for which tax returns
are not yet required to be filed and,
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except as disclosed in writing to the Agent from time to time,
there are no actions, proceedings or claims pending or, to its
knowledge, threatened, against it in respect of material Taxes
(it being agreed that, for purposes of this paragraph, the
amount of a Tax is material if it equals or exceeds Cdn.
$1,000,000 or the equivalent thereof in another currency).
(b) It has (i) withheld from each payment made to any of its past
or present employees, officers or directors, and to any
non-resident of the country in which it is resident, the
amount of all material Taxes and other deductions required to
be withheld therefrom and has paid the same to the appropriate
tax authority within the time required under any applicable
legislation, and (ii) collected and remitted to the
appropriate tax authority when required by law to do so all
material amounts collectible and remittable in respect of
goods and services tax and similar provincial or state Taxes,
and has paid all such material amounts payable by it on
account of sales Taxes including goods and services and
value-added taxes (it being agreed that, for purposes of this
paragraph, the amount of a Tax is material if it equals or
exceeds Cdn. $1,000,000 or the equivalent thereof in another
currency).
9.1.8 PENSION PLANS
(a) During the twelve-consecutive-month period before the date of
the execution and delivery of this Agreement and before the
date of any Advance hereunder, (i) no steps have been taken to
terminate any Pension Plan (wholly or in part), which could
result in a Restricted Party being required by applicable
Requirements of Law to make an additional contribution to the
Pension Plan in excess of $1,000,000, (ii) no contribution
failure has occurred with respect to any Pension Plan
sufficient to give rise to a lien or charge under any
applicable pension benefits laws of any other jurisdiction
that, individually or in the aggregate could reasonably be
expected to cause a Material Adverse Change, (iii) no
condition exists and no event or transaction has occurred with
respect to any Pension Plan which might result in the
incurrence by any Restricted Party of any liability (other
than a liability to pay benefits in accordance with the
Pension Plan), fine or penalty in excess of $1,000,000, and
(iv) except as disclosed in the financial statements required
to be provided pursuant to this Agreement or as otherwise
disclosed in writing from time to time to the Agent, no
Restricted Party has any contingent liability with respect to
any post-retirement benefit under a Welfare Plan that,
individually or in the aggregate could reasonably be expected
to cause a Material Adverse Change.
(b) Each Pension Plan is in compliance in all material respects
with all applicable pension benefits and tax laws, (i) all
contributions (including employee
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contributions made by authorized payroll deductions or other
withholdings) required to be made to the appropriate funding
agency in accordance with all applicable laws and the terms of
each Pension Plan have been made in accordance with all
applicable laws and the terms of each Pension Plan, (ii) all
liabilities under each Pension Plan which are required by
applicable Requirements of Law to be funded are fully funded,
on a going concern and solvency basis, in accordance with the
terms of the respective Pension Plans, the requirements of
applicable pension benefits laws and of applicable regulatory
authorities and the most recent actuarial report filed with
respect to the Pension Plan, and (iii) no event has occurred
and no conditions exist with respect to any Pension Plan that
has resulted or could reasonably be expected to result in any
Pension Plan having its registration revoked or refused for
the purposes of any applicable pension benefits or tax laws or
being placed under the administration of any relevant pension
benefits regulatory authority or being required to pay any
taxes or penalties under any applicable pension benefits or
tax laws, except for any exceptions to clauses (i) through
(iii) above that, individually or in the aggregate, could not
reasonably be expected to cause a Material Adverse Change.
9.1.9 ABORIGINAL CLAIMS
(a) Except for matters which would not, in the aggregate,
reasonably be expected to cause a Material Adverse Change, no
Aboriginal group has asserted, by virtue of its Aboriginal
status:
(i) any claim against any Property of a Restricted Party;
(ii) any right, title, benefit or interest in any real
property of a Restricted Party;
(iii) any claim of jurisdiction over any real property of a
Restricted Party; or
(iv) any right to be consulted with respect to any change
in the use, development or improvement in any real
property of a Restricted Party.
(b) Except for matters which would not, in the aggregate,
reasonably be expected to cause a Material Adverse Change, it
is not aware of and has not received, in relation to any of
its real property, any notice of:
(i) the existence or potential existence of any
Aboriginal heritage sites;
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(ii) any actual or alleged interference with Aboriginal
rights; or
(iii) any specific or comprehensive claims.
(c) Except for matters which would not, in the aggregate,
reasonably be expected to cause a Material Adverse Change, it
has disclosed to the Lenders all written correspondence,
notices or minutes of meetings received from or involving any
Aboriginal group relating to any claim, conflict or
controversy.
9.1.10 OTHER MATTERS
(a) Neither it nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(b) None of the proceeds of any Advance shall be used to purchase
or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the
meaning of Regulations U and X of the Board of Governors of
the Federal Reserve System of the United States) or to extend
credit to others for the purpose of purchasing or carrying any
margin stock.
9.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Unless expressly stated to be made as of a specific date, the
representations and warranties made in this Agreement shall survive the
execution of this Agreement and all other Credit Documents, and shall be deemed
to be repeated as of the date of each Advance (including any deemed Advance),
subject to modifications made by NSCL to the Lenders in writing and accepted by
the Majority Lenders, acting reasonably. The Lenders shall be deemed to have
relied upon such representations and warranties at each such time as a condition
of making an Advance hereunder or continuing to extend the Credits hereunder.
ARTICLE X
COVENANTS AND CONDITIONS
10.1 FINANCIAL COVENANTS
10.1.1 During the term of this Agreement, NSCL shall at all times maintain an
Interest Coverage Ratio of not less than 2.75 to 1 except that, if the
Acquisition is completed by 31
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August 2001, during the period from completion of the Acquisition to 31 December
2002 NSCL need only maintain an Interest Coverage Ratio of not less than 2.50 to
1.
10.1.2 During the term of this Agreement, the Funded Debt Ratio shall not at any
time exceed the following:
Period Funded Debt Ratio
------ -----------------
to 31 December 2001 0.60 to 1
from 1 January 2002 to 29 June 2003 0.55 to 1
on and after 30 June 2003 0.50 to 1
Notwithstanding the foregoing, if the Acquisition is completed by 31 August
2001, then the Funded Debt Ratio shall not at any time exceed the following:
Period Funded Debt Ratio
to 31 December 2002 0.60 to 1
from 1 January 2003 to 31 December 2003 0.55 to 1
on and after 1 January 2004 0.50 to 1
10.1.3 During the term of this Agreement, NSCL shall at all times maintain a
consolidated shareholders' equity of not less than a minimum of $625,000,000.
That minimum shall increase to $750,000,000 on and after the date the
Acquisition is completed. Whichever of those minimums is applicable, depending
on whether the Acquisition is completed, shall then increase annually as of 31
December in each year, beginning in 2001, by an amount equal to 50% of NSCL's
consolidated net income for each year, excluding any year in which NSCL incurs a
consolidated net loss.
10.1.4 If the Acquisition is completed by 31 August 2001, the Secured Debt
Ratio shall not at any time exceed 0.40 to 1, and the aggregate amount of
Funded Debt that is secured by any Encumbrance shall not at any time exceed the
Threshold Amount.
10.2 POSITIVE COVENANTS
During the term of this Agreement, each Restricted Party shall
perform the covenants specified below.
10.2.1 AMALGAMATION FOLLOWING ACQUISITION
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In the case of the NSCL, it shall cause the amalgamation of NSCL and
Pacifica to be completed in accordance with the provisions of the CANADA
BUSINESS CORPORATIONS ACT within five Business Days following the completion of
the Acquisition.
10.2.2 PAYMENT; OPERATION OF BUSINESS
(a) It shall duly and punctually pay the Obligations, either as
Borrower or in accordance with its guarantee of the
Obligations, at the times and places and in the manner
required by the terms thereof.
(b) It shall keep proper books of account and record, maintain its
corporate status in all jurisdictions where it carries on
business, operate its business in accordance with sound
business practice and in compliance in all material respects
with all applicable Requirements of Law (including but not
limited to those regarding ownership of persons carrying on
the type of business that it carries on) and Material
Contracts and Material Permits.
(c) It shall maintain in good standing and shall obtain, as and
when required, all Permits and Contracts which may be material
to permit it to acquire, own, operate and maintain its
business and Property, lease any land forming part of its
Property, and perform its obligations under the Credit
Documents to which it is or will be a party.
(d) It shall not (i) amend any provision of any Material Contract
to which it is a party or give any consent, concession or
waiver with respect thereto which, in either case, would cause
a Material Adverse Change, or (ii) cancel, terminate or accept
the surrender of any Material Contract if the cancellation,
termination or surrender would cause a Material Adverse
Change, unless a Replacement Contract is entered into in
respect of the Material Contract in question.
10.2.3 INSPECTION
It shall at all reasonable times and from time to time upon
reasonable notice, permit representatives of the Lenders to inspect any of its
Property and to examine and take extracts from its financial books, accounts and
records, including but not limited to accounts and records stored in computer
data banks and computer software systems, and to discuss its financial condition
with its senior officers and (in the presence of such of its representatives as
it may designate) its auditors, the reasonable expense of all of which shall be
paid by the Borrower provided that:
(a) the Lenders' exercise of their rights under this paragraph
does not
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unreasonably interfere with the operations of the Restricted
Parties;
(b) the Lenders maintain the confidentiality of all information
they receive in accordance with usual requirements of banker /
customer confidentiality, and do not disclose or use it except
for the purposes of this Agreement;
(c) any representative of a Lender who is not an employee of that
Lender has executed and delivered an agreement in favour of
the Restricted Parties and the Lenders to use any information
obtained as a result of any inspection or examination on
behalf of a Lender only for the purposes of this Agreement,
and has established to the reasonable satisfaction of NSCL and
the Lenders that there is no inherent conflict of interest
between the business and clientele of the Restricted Parties
and the business and clientele (other than the Lenders) of
that representative.
10.2.4 INSURANCE
(a) It shall maintain insurance on all its Property with
financially sound and reputable insurance companies or
associations including all-risk property insurance,
comprehensive general liability insurance and business
interruption insurance, in amounts, with deductibles or
retentions, and against risks that would be maintained by a
prudent owner carrying on similar businesses in similar
locations, and shall furnish to the Agent, on written request,
satisfactory evidence of the insurance carried.
(b) It shall cause policies of insurance referred to above to
contain a standard mortgage clause and other customary
endorsements for the benefit of lenders (including
endorsements naming the Trustee as loss payee and additional
insured as required by the Agent), all in a form acceptable to
the Lenders acting reasonably, and a provision that such
policies will not be amended in any manner which is
prejudicial to the Lenders or be cancelled without 30 days'
prior written notice being given to the Trustee by the issuers
thereof. It shall also, subject to Section 10.6, cause all of
the proceeds of insurance under such policies to be made
payable and to be paid to the Trustee.
(c) Whenever reasonably requested in writing by the Agent, it
shall cause certified copies of the policies of insurance
carried pursuant to this Section to be delivered to the Agent.
(d) It shall provide the Agent promptly with such other evidence
of the insurance as the Lenders may from time to time
reasonably require.
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10.2.5 TAXES, ENCUMBRANCES AND WITHHOLDINGS
(a) It shall pay all Taxes and Encumbrances in respect of itself
or its Property as they become due and payable unless they are
being contested in good faith by appropriate proceedings and
it has made adequate provision for payment of the contested
amount.
(b) It shall withhold from each payment made to any of its past or
present employees, officers or directors, and to any
non-resident of the country in which it is resident, the
amount of all Taxes and other deductions required to be
withheld therefrom and pay the same to the appropriate tax
authority within the time required under any applicable
Requirement of Law.
(c) It shall collect from all Persons the amount of all Taxes
required to be collected from them and remit the same to the
proper tax or other receiving officers within the time
required under any applicable Requirement of Law.
10.2.6 OTHER MATTERS
(a) It shall, immediately upon receipt, deliver to the Trustee
certificates representing all Capital Stock of other
Restricted Parties or of other persons in which it owns
Capital Stock that it acquires after the date that Capital
Stock of the Restricted Parties or other persons is first
delivered as part of the Trustee Security, together with
executed stock powers of attorney relating to those
certificates (or if certificates in respect of such Capital
Stock are not available, take such other steps to perfect the
Trustee Security relating to such Capital Stock as the Agent
requires).
(b) It shall observe and comply in all material respects at all
times with the provisions of all Environmental Laws and shall
provide such evidence of on-going compliance with
Environmental Laws as the Majority Lenders may reasonably
require from time to time including, without limitation, if so
requested by the Majority Lenders, acting reasonably upon
reasonable cause, arranging for one or more environmental site
assessment and/or compliance audits (each consisting of a
non-intrusive phase I audit and recommendations with respect
to the findings described therein and such other audits or
investigations recommended in each such phase I audit,
including, without limitation, an intrusive phase II audit)
and reports thereon by an independent consultant engaged by
the Restricted Parties and acceptable to the Majority Lenders,
acting reasonably. It shall also remove, clean up or otherwise
remedy the matters referred to in Section 10.3.2(d).
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(c) If it is listed on Schedule I, it shall comply with the limits
on its Property, business activities and other matters
described on that Schedule and, if it owns Capital Stock of
any other person listed on Schedule I, it shall cause that
person to comply with the limits on its Property, business
activities and other matters described on that Schedule.
(d) It shall diligently and in good faith use all commercially
reasonable efforts to obtain agreements in form and substance
satisfactory to the Agent from other parties to Material
Contracts that have been specifically assigned as part of the
Trustee Security within 60 days following the initial Advance
to the extent that the Agent has permitted such agreements to
be obtained after the date of the initial Advance.
(e) It shall diligently and in good faith use all commercially
reasonable efforts to obtain consents in respect of the
Security in form and substance satisfactory to the Agent from
landlords of leasehold real property designated by the Agent
from time to time in which any Restricted Party carries on
business.
(f) In the case of NSCL, if it issues the NSCL Notes after
completion of the Acquisition, or if it issues Permitted
Senior Indebtedness or Permitted Subordinated Indebtedness, it
shall concurrently deliver a certificate with copies of all
documents necessary to fully and fairly disclose all material
terms thereof.
(g) In the case of the Borrower, if requested by a Term Credit B
Lender, it shall prepare, execute and deliver to such Lender a
promissory note payable to the order of such Lender in a form
approved by the Administration Agent to further evidence the
Advances made by such Lender.
(h) Without limiting its obligations under the Credit Documents,
if it is a party to any Material Contract, it shall comply
with all covenants contained in the assignments of Material
Contracts forming part of the Trustee Security to which it is
a party.
10.3 REPORTING AND NOTICE REQUIREMENTS
During the term of this Agreement, NSCL shall deliver or cause the
delivery of the periodic reports specified below and shall give notices in the
circumstances specified below, or cause notices to be given. All financial
statements and other reports shall be in a form satisfactory to the Lenders and
all financial statements shall be prepared in accordance with GAAP. NSCL shall,
as directed by the Agent from time to time, either distribute financial
statements and other reports directly to the Lenders or supply the Agent with
sufficient copies
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of financial statements and other reports to allow the Agent to distribute them
to the Lenders.
10.3.1 PERIODIC REPORTS
(a) NSCL shall, as soon as practicable and in any event within 45
days of the end of each of its fiscal quarters (including the
fourth quarter), prepare and deliver its interim unaudited
consolidated financial statements, modified to exclude persons
that are not Restricted Parties, and the interim unaudited
financial statements of the Borrower, as at the end of such
quarter, in each case including, without limitation, balance
sheet, statement of income and retained earnings and statement
of changes in financial position.
(b) NSCL shall, as soon as practicable and in any event within 90
days after the end of each of its fiscal years, prepare and
deliver its modified consolidated annual financial statements
(and the annual financial statements of the Borrower)
including, without limitation, balance sheet, statement of
income and retained earnings and statement of changes in
financial position for such fiscal year, which shall be
audited by an internationally recognized accounting firm.
(c) NSCL shall, concurrently with the delivery of each of its
quarterly and annual financial statements, prepare and deliver
a Compliance Certificate.
(d) NSCL shall, as soon as practicable and in any event not later
than 30 days before the beginning of each of its fiscal years,
prepare and deliver its financial forecast for the following
five fiscal years (or six years in the case of the forecast to
be delivered by 1 December 2001), which shall cover NSCL on a
consolidated basis and shall include, without limitation, a
projected income statement, a projected statement of changes
in funds, estimates of capital expenditures and tax losses and
deferrals.
(e) NSCL shall promptly deliver copies of all information
concerning its financial condition and Property that is
provided to the Noteholders and the holders of the Permitted
Senior Indebtedness and the Permitted Subordinated
Indebtedness and not otherwise provided to the Lenders, copies
of all notices received from the Noteholders and the holders
of the Permitted Senior Indebtedness and the Permitted
Subordinated Indebtedness, and all other information
reasonably requested by the Lenders from time to time
concerning the business, financial condition and Property of
the Restricted Parties.
If there is any change in a subsequent period from the
accounting policies, practices
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and calculation methods used by NSCL in preparing its financial statements for
its fiscal year ended 31 December 2000, or components thereof, NSCL shall
provide the Lenders with all information that the Lenders require to ensure that
reports provided to the Lenders after any change are comparable to previous
reports. In addition, all calculations made for the purposes of this Agreement
shall continue to be made based on the accounting policies, practices and
calculation methods that were used in preparing NSCL's financial statements for
its fiscal year ended 31 December 2000 if the changed policies, practices and
methods would materially affect the results of those calculations.
10.3.2 REQUIREMENTS FOR NOTICE
(a) NSCL shall promptly notify the Lenders of any Event of Default
or Pending Event of Default;
(b) NSCL shall promptly notify the Lenders of (i) any material
default (either by a Restricted Party or by any other party)
under any Material Contract or Material Permit, (ii) any event
which, with or without the giving of notice, lapse of time or
any other condition subsequent, would be a material default or
would otherwise allow the termination of any Material Contract
or Material Permit or the imposition of any material sanction
on any party to a Material Contract or Material Permit, (iii)
the occurrence of any "force majeure" event as described in
any Material Contract, (iv) any litigation or arbitration
proceedings concerning any Material Contract, and (v) any
matters requiring the consent of any other party to a Material
Contract, and shall from time to time provide the Lenders with
all information reasonably requested by any of the Lenders
concerning the status thereof.
(c) NSCL shall promptly notify the Lenders on becoming aware of
the occurrence of any litigation, dispute, arbitration,
proceeding, labour or industrial dispute or any other
circumstance affecting it, the result of which if determined
adversely would cause a Material Adverse Change, and shall
from time to time provide the Lenders with all reasonable
information requested by any of the Lenders concerning the
status thereof.
(d) NSCL shall promptly notify the Agent upon (i) learning of the
existence of Hazardous Materials located on, above or below
the surface of any land which any Restricted Party occupies or
controls, or contained in the soil or water constituting such
land, in each case except those being stored, used or
otherwise handled or existing in substantial compliance with
applicable Requirements of Law or that do not exceed levels
prescribed under applicable Requirements of Law, guidelines or
policies of applicable regulatory authorities or which would
not constitute a breach of or non-compliance with
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any Requirements of Law, (ii) the occurrence of any release of
Hazardous Materials that has occurred on or from such land and
is reportable under applicable Requirements of Law, and (iii)
any material enforcement actions, special investigations,
control orders, stop orders, injunctions, prosecutions or
civil proceedings under any Environmental Law or based on any
allegation of material environmental damage or material
release of Hazardous Materials, and shall provide the Agent
with details, including cost, of the work required to remove,
clean up or otherwise remedy the matters referred to in the
notice.
(e) NSCL shall provide notice to the Agent with copies of all
relevant documentation promptly upon becoming aware of (i) the
institution of any steps by any Restricted Party or any
applicable regulatory authority to terminate any Pension Plan
(wholly or in part) which could result in any Restricted Party
being required to make an additional contribution to the
Pension Plan in excess of $1,000,000, (ii) the failure to make
a required contribution to any Pension Plan if such failure is
sufficient to give rise to a lien or charge under any
applicable pension benefits laws of any other jurisdiction
that, individually or in the aggregate could reasonably be
expected to cause a Material Adverse Change, (iii) the taking
of any action with respect to a Pension Plan which could
reasonably be expected to result in the requirement that any
Restricted Party furnish a bond or other security to such
Pension Plan or any applicable regulatory authority that,
individually or in the aggregate could reasonably be expected
to cause a Material Adverse Change, (iv) the occurrence of any
event which could reasonably be expected to result in the
incurrence by any Restricted Party of any material liability,
fine or penalty with respect to any Pension Plan, other than
liabilities associated with benefit enhancements granted under
a Pension Plan in the ordinary course of the Restricted
Party's business, or (v) the occurrence of any event which
could reasonably be expected to result in any increase in
excess of $1,000,000 in the contingent liability of any
Restricted Party with respect to any post- retirement Welfare
Plan benefit.
(f) NSCL shall promptly notify the Agent if any change occurs in
the ratings used to determine the Applicable Fee Rate and the
Applicable Margin or if it learns that any change is being
considered by the relevant ratings agencies.
(g) NSCL shall promptly notify the Agent if the aggregate of the
Market Values of all Other Secured Obligations that are Swaps
to exchange one of Canadian Dollars, US Dollars and Japanese
yen to another of those currencies, or that are Swaps to
provide for the exchange of floating interest rate obligations
for fixed interest rate obligations, is at any time negative
from the Restricted Parties' perspective (that is, the
Restricted Parties are "out of the money") to
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the extent of $140,000,000, and promptly provide such further
reports concerning Market Value as the Agent may require while
the negative Market Value continues to exceed $140,000,000.
10.4 OWNERSHIP OF THE RESTRICTED PARTIES
During the term of this Agreement, there shall not, without the
prior written consent of the Majority Lenders (which shall not be unreasonably
withheld), be any change in the ownership or control of the Restricted Parties
other than NSCL from that described on Schedule F, except as otherwise expressly
permitted in this Agreement. In addition, there shall not be any change of
control of NSCL which results in the Reference Debt Rating by ▇▇▇▇▇'▇ or S&P
being lowered. For the purpose of this Agreement, a change in control of NSCL
shall be deemed to have occurred only in the following circumstances:
(a) if the Existing Major Shareholder then holds Capital Stock of
NSCL to which is attached 30% or more of the votes that may be
cast to elect directors of NSCL and 30% or more of the total
shareholders' equity of NSCL, a change of control shall be
deemed to have occurred if Capital Stock of NSCL is held by or
for the benefit of any person or group of persons acting
jointly or in concert, other than by way of security only, in
a quantity to which is attached more of the votes or more of
the shareholders' equity than are attached to the Capital
Stock of NSCL then held by the Existing Major Shareholder, or
(b) if the Existing Major Shareholder does not then hold Capital
Stock of NSCL to which is attached 30% or more of the votes
that may be cast to elect directors of NSCL and 30% or more of
the total shareholders' equity of NSCL, a change of control
shall be deemed to have occurred if Capital Stock of NSCL to
which is attached 30% or more of the votes that may be cast to
elect directors of NSCL or 30% or more of the total
shareholders' equity of NSCL is held by or for the benefit of
any person or group of persons acting jointly or in concert,
other than by way of security only.
10.5 NEGATIVE COVENANTS
During the term of this Agreement, the Restricted Parties shall not
do any of the things specified in this Section without the prior written consent
of the Agent, which shall only be given subject to and in accordance with
Sections 12.7.2, 12.7.3, 12.7.4 and 12.7.5 and which shall not be unreasonably
withheld.
10.5.1 FINANCIAL TRANSACTIONS AND ENCUMBRANCES
No Restricted Party shall:
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(a) create, incur or assume or suffer to exist or cause or permit
any Encumbrance upon or in respect of any of its Property,
except for Permitted Encumbrances;
(b) do or permit anything to adversely affect the ranking or
validity of the Security except by incurring a Permitted
Encumbrance;
(c) create, incur, assume or permit any debts, liabilities or
obligations of any kind (including contingent liabilities) to
remain outstanding, other than Permitted Obligations;
(d) prepay, redeem, defease, repurchase or make other payments in
respect of any of its Debt for borrowed money, other than:
(i) the Obligations;
(ii) scheduled interest payments under the Bridge Loan,
and repayment of the principal amount of the Bridge
Loan from the proceeds of the NSCL Notes;
(iii) scheduled interest and principal payments under the
Pacifica Notes, the NSCL Notes and any Permitted
Senior Indebtedness (including additional interest
that may be payable as a result of delays in
effecting registration of the NSCL Notes under the
SECURITIES ACT OF 1933 (United States) in accordance
with the terms of the NSCL Notes);
(iv) scheduled interest payments under any Permitted
Subordinated Indebtedness as long as no Event of
Default or Pending Event of Default has occurred and
is continuing or would result from payment being
made;
(v) the purchase money and other obligations contemplated
in Section 1.1.87(l);
(vi) Debts owing by any Restricted Party to another
Restricted Party;
(vii) payments made with the proceeds of any issuance of
Capital Stock, any right to acquire Capital Stock or
any equity-equivalent security, to the extent not
required by this Agreement to be paid on account of
the Obligations;
(e) make loans to any other person, guarantee, endorse or
otherwise become
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liable for any debts, liabilities or obligations of any other
person, or give other financial assistance of any kind to any
other person, except for:
(i) the guarantees given as part of the Security or in
connection with other debentures permitted to be
issued under the Trustee Security;
(ii) loans and advances to other Restricted Parties that
are incorporated in Canada;
(iii) guarantees of debts, liabilities and obligations of
other Restricted Parties that are Permitted
Obligations;
(iv) financial assistance in an aggregate amount of not
greater than $5,000,000 to persons other than another
Restricted Party that is incorporated in Canada;
(f) enter into any Swap except for Swaps secured by the Trustee
Security as Other Secured Obligations or other unsecured
Swaps, or enter into any Swap if the notional amount or the
term of the proposed transaction would adversely affect the
Borrower's ability to make principal payments required under
the terms of this Agreement or, in the case of interest rate
Swaps and similar transactions, the aggregate notional amount
swapped by all Restricted Parties at any time (net of
offsetting transactions) exceeds the outstanding amount of the
Credits at that time.
10.5.2 BUSINESS AND PROPERTY
No Restricted Party shall:
(a) effect any material change in the nature of its business,
being the manufacture and sale of paper, pulp and
containerboard, except that the Restricted Parties generally
may discontinue their containerboard business and any
Restricted Party may discontinue any aspect of its business
that is transferred to and continued by another Restricted
Party;
(b) have any Subsidiaries or hold or acquire Capital Stock or
other securities of, or make investments in, any other person,
or acquire any Property that is not wholly-owned (apart from
the interest of the lessor in Property leased by a Restricted
Party), except:
(i) other Restricted Parties as specified on Schedule F
and any other wholly owned Subsidiaries;
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(ii) investments in ▇▇▇▇▇▇ River Energy Inc. and other
joint ventures existing as of the date of this
Agreement, as specified on Schedule F;
(iii) other non-wholly-owned Property or persons, the value
of which does not at any time exceed 10% of the value
of Consolidated Net Tangible Assets;
(c) permit any sale, lease, sale and lease-back or other
disposition of any part of its Property (including Capital
Stock it holds) except for (i) sales of inventory and obsolete
or redundant equipment in the ordinary course of business,
(ii) redemption of the shares of ▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Pulp
Operations Ltd. referred to in Section 1.1.87(m), if the
proceeds are used to repay the debt secured by the pledge of
those shares, (iii) dispositions to another Restricted Party,
provided that Property owned by a Restricted Party
incorporated in Canada is not transferred to a Restricted
Party not incorporated in Canada and Property located in
Canada is not transferred outside Canada, (iv) dispositions in
connection with transactions permitted by Section 10.5.3(a),
(v) other dispositions of Property (including Capital Stock of
any other person) having a fair market value for all
Restricted Parties up to an aggregate for all Restricted
Parties during the term of this Agreement of 12.5% of the
Consolidated Net Tangible Assets valued immediately before any
disposition, (vi) dispositions from which the proceeds are
used to acquire other Property or offered for prepayment of
the Credits in accordance with Section 5.1;
(d) permit any single or related series of sales, leases, sale and
lease-backs or other dispositions of any part of its Property
(including Capital Stock it holds) having a value greater than
10% of the Consolidated Net Tangible Assets valued immediately
before any disposition, without the prior written consent of
the Majority Lenders;
(e) except for transactions between two or more Restricted Parties
each of which is incorporated in the same jurisdiction, enter
into any transaction of any kind with any affiliate or
associate (as those terms are defined in the CANADA BUSINESS
CORPORATIONS ACT), or person of which it is an associate
except on terms that are no more onerous to a Restricted Party
than if it were dealing with such person on an arm's length
basis.
10.5.3 CORPORATE MATTERS
No Restricted Party shall:
(a) consolidate, amalgamate or merge with any other person, enter
into any
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corporate reorganization or other transaction intended to
effect or otherwise permit a change in its existing Constating
Documents, liquidate, wind-up or dissolve itself, or permit
any liquidation, winding-up or dissolution, except for
transactions involving only one or more Restricted Parties
(including but not limited to the continuation of NSCL under
the CANADA BUSINESS CORPORATIONS ACT, the amalgamation of NSCL
with Pacifica, the amalgamation of Norske ▇▇▇▇ Canada Pulp
Operations Limited with Export Sales Company Limited, and the
reorganization of Pacifica Papers Co. LP into a general
partnership between NSCL and Norske ▇▇▇▇ Canada Pulp
Operations Limited, in each case if the Acquisition is
completed) if NSCL gives the Agent reasonable advance notice
of the transactions and immediately takes whatever steps and
delivers whatever documents (including opinions of counsel
satisfactory to the Lenders) are reasonably required to ensure
that the Lenders' rights are not adversely affected as a
result;
(b) change its name without providing the Lenders with prior
written notice thereof and promptly taking other steps, if
any, as the Lenders reasonably request to permit the Trustee
and/or Agent to perfect the Security with respect to the
change in name;
(c) change the location of its Property (except for goods in
transit) or the location of its chief executive office from
the respective jurisdictions specified on Schedule F without
providing the Agent with prior written notice thereof and
promptly taking other steps, if any, as the Lenders reasonably
request to permit the Trustee and/or Agent to perfect the
Security with respect to the change in location;
(d) allow inventory to be located in any jurisdiction where the
Trustee Security over inventory has not been registered in
accordance with local requirements unless (i) the amount of
all such inventory for all Restricted Parties in each such
jurisdiction is less than 15,000 tonnes and (ii) the net book
value of all such inventory for all Restricted Parties in all
such jurisdictions, measured on 30 June of each year with an
adjustment for any unusual movements of inventory on or before
that date, is less than 30% of then-existing consolidated net
book value of NSCL's inventory;
(e) allow Property other than inventory to be located in any
jurisdiction where the Trustee Security over that Property has
not been registered in accordance with local requirements
unless the net book value of all such Property for all
Restricted Parties in all such jurisdictions is less than 4%
of then-existing consolidated net book value of NSCL's fixed
assets; for greater certainty, accounts receivable of a
Restricted Party shall be considered for the purpose
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of this item to be located where the chief executive office
of the Restricted Party is located;
(f) in the case of NSCL and the Borrower, change its fiscal year
end, being 31 December;
(g) change its auditors, unless an internationally recognized
accounting firm is appointed;
(h) be a party to any amendment or waiver of the terms of the
Permitted Senior Indebtedness or the Permitted Subordinated
Indebtedness, unless expressly permitted by any applicable
Intercreditor Agreement;
(i) be a party to any amendment or waiver to the terms of the
Pacifica Notes, Bridge Loan or NSCL Notes or any documents
relating to any of them if the amendment would adversely
affect the rights of any Lender or make the terms thereof more
onerous to any Restricted Party (including but not limited to
any amendment that would shorten the maturity, require any
additional prepayment, increase the interest rate or other
compensation payable to Noteholders, impose additional
requirements for securing the Noteholders or further limit the
rights of the Restricted Parties to incur Debt or grant
Encumbrances), or be a party to any amendment of any kind
without immediately providing the Agent with copies of all
documents and other information relating to the amendment.
10.6 USE OF INSURANCE PROCEEDS
10.6.1 Unless otherwise specified in this Section 10.6, all proceeds of
insurance required to be maintained by the Restricted Parties under the terms of
this Agreement shall be paid to the Trustee.
10.6.2 Proceeds of liability insurance shall be paid to the person to whom
the affected Restricted Party is liable. Proceeds of insurance covering loss of
or damage to property in an amount of less than $25,000,000 per claim may be
paid by the insurer directly to the affected Restricted Party unless, if an
Event of Default or Pending Event of Default has occurred and is continuing,
the Agent requires that payment be made to the Trustee. Proceeds paid to the
Restricted Parties shall be used in accordance with Section 5.1.
10.6.3 Subject to the rights of any holder of a Permitted Encumbrance that
has priority over the Security, proceeds of insurance covering loss of or damage
to property in an amount of $25,000,000 per claim or more shall be paid to the
Trustee and the Agent shall direct the Trustee to disburse the proceeds to the
affected Restricted Party on conditions customary for
- 88 -
construction or equipment financing, to fund the repair or replacement of the
property in respect of which the insurance proceeds are payable, or to acquire
revenue producing Property within the core business of the Restricted Parties,
provided that:
(a) no Event of Default (including but not limited to one relating
to Material Adverse Change) or Pending Event of Default has
occurred and is continuing;
(b) the Majority Lenders are satisfied, acting reasonably, that,
if repair or replacement is contemplated, the proceeds of such
insurance together with other resources available to the
affected Restricted Party (the use of which would not
contravene this Agreement) are sufficient to fully repair or
replace the property in respect of which the insurance
proceeds are payable within the remaining term of the
then-outstanding Credits or within 365 days, whichever is
less.
10.6.4 The proceeds of business interruption insurance shall be used to
repay the Operating Credit, without prejudice to the Borrower's rights to
further Advances under that Credit. If the Operating Credit is repaid in full at
any time, the proceeds may be used to carry on the business of the Restricted
Parties as long as the Majority Lenders are satisfied, acting reasonably, that
adequate provision has been made for payment of the Obligations and any other
obligations secured by the Security (payment of which is permitted in accordance
with this Agreement).
10.7 MARKET VALUE OF SWAPS
If the aggregate of the Market Values of all Other Secured
Obligations that are Swaps to exchange one of Canadian Dollars, US Dollars and
Japanese yen to another of those currencies, or that are Swaps to provide for
the exchange of floating interest rate obligations for fixed interest rate
obligations, is at any time negative from the Restricted Parties' perspective
(that is, the Restricted Parties on an aggregate basis are "out of the money")
to the extent of $150,000,000 or more, the Restricted Parties shall, within five
Business Days of receiving notice from the Agent, terminate or re-price one or
more Swaps or take other action acceptable to the Agent acting reasonably so
that the Market Value of those Swaps is immediately reduced to a negative Market
Value of not more than $135,000,000. The definition of Market Value in this
Agreement shall not, however, be binding on the Restricted Parties or any Lender
for the purpose of determining the price or other basis on which any such action
is taken.
ARTICLE XI
DEFAULT
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11.1 EVENTS OF DEFAULT
Each of the following events shall constitute an Event of Default
under this Agreement:
(a) the Borrower fails to pay any amount of principal, interest,
fees or other Obligations (including any amount relating to a
Bankers' Acceptance or an L/C) within five Business Days of
when due; or
(b) a Restricted Party makes any representation or warranty under
any of the Credit Documents which is incorrect or incomplete
in any material respect when made or deemed to be made, it
being agreed that an incorrect representation that there is no
Pending Event of Default shall not result in the Restricted
Parties being disentitled to any cure period otherwise
associated with the Pending Event of Default; or
(c) a Restricted Party ceases or threatens to cease to carry on
its business, except as expressly permitted in this Agreement,
or admits its inability or fails to pay its debts generally;
or
(d) a Restricted Party permits any default under one or more
agreements or instruments relating to its Debt other than the
Obligations (including but not limited to the Debt under the
Pacifica Notes, Bridge Loan, NSCL Notes, the Permitted Senior
Indebtedness and the Permitted Subordinated Indebtedness to
the extent they are outstanding) or permits any other event to
occur and to continue without being waived or cured after any
applicable grace period specified in such agreements or
instruments, if the effect of one or more of such events is to
accelerate, or to permit (in accordance with any applicable
inter-creditor and subordination arrangements) the
acceleration of, the date on which Debt in an aggregate amount
of $25,000,000 or more becomes due (whether or not
acceleration actually occurs); or
(e) a Restricted Party becomes a bankrupt (voluntarily or
involuntarily); or becomes subject to any proceeding seeking
liquidation, arrangement, relief of creditors or the
appointment of a receiver or trustee over, or any judgment or
order which has or might have a material and adverse effect
on, any material part of its Property, and such proceeding, if
instituted against the Restricted Party, or such judgment or
order, is not contested diligently, in good faith and on a
timely basis and dismissed or stayed within 30 days of its
commencement or issuance; or
(f) a Restricted Party denies, to any material extent, its
obligations under the
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Credit Documents or claims any of the Credit Documents to be
invalid, with drawn or terminated in whole or in part; or any
of the Credit Documents is invalidated in any material respect
by any act, regulation or governmental action or is determined
to be invalid in any material respect by a court or other
judicial entity and such determination has not been stayed
pending appeal; or
(g) one or more final judgments, writs of execution, garnishments
or attachments or similar processes representing claims in an
aggregate of $25,000,000 or more for all Restricted Parties at
any time are issued or levied against any of their Property
and are not released, bonded, satisfied, discharged, vacated,
stayed or accepted for payment by an insurer within 30 days
after their entry, commencement or levy, unless such process
is contested diligently, in good faith and on a timely basis
and the applicable Restricted Party has made sufficient cash
offset or other arrangements satisfactory to the Lenders with
respect thereto; or
(h) an Encumbrancer takes possession of all or a substantial
portion of the Property of a Restricted Party by appointment
of a receiver, receiver and manager, or otherwise; or
(i) one or more transactions, events or conditions occur or exist
which, when taken together, have a material adverse effect on
the Agent's or the Lenders' ability to enforce their rights or
remedies under any of the Credit Documents, or the financial
condition, business or prospects of NSCL and its Subsidiaries,
taken as a whole, in each case as determined by the Majority
Lenders, acting in good faith and on commercially reasonable
grounds; or
(j) there is a breach of Section 10.1 and NSCL does not, within 30
days after it first identifies the breach, receive proceeds of
an equity investment in a form and an amount sufficient to
satisfy the Agent that the breach would not have occurred had
the equity investment been made at the beginning of the
relevant period for measurement of the provision of Section
10.1 that has been breached; or
(k) there is a breach of any other provision of any of the Credit
Documents and such breach is not corrected or otherwise
satisfied within 30 days after the Agent, for and on behalf of
the Lenders, gives written notice thereof; or
(l) there is a change in the ownership or control of a Restricted
Party which is not permitted by this Agreement; or
(m) any Material Permit expires or is withdrawn, cancelled,
terminated, or
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modified so as to cause a Material Adverse Change, and is not
reinstated or replaced within 30 days thereafter so as to
reverse the Material Adverse Change; or
(n) a default under any Material Contract by a Restricted Party or
any other party to a Material Contract occurs, or any other
event occurs under any Material Contract, and continues
without being waived after any applicable grace period
specified in the Material Contract, if the effect of the
default or other event (if not waived) is to terminate the
Material Contract or if the default or other event results in
a declaration of non-performance being issued or similar step
being taken with respect to a Restricted Party, and the
termination, declaration or similar step, if it arose from a
breach by or other event relating to a Restricted Party, would
cause a Material Adverse Change or, if it relates to a
Material Contract listed in Part A of Schedule G and arose
from a breach by or other event relating to a Person other
than a Restricted Party, would cause an Event of Default under
clause (i) above or would have a material adverse effect on
the ability of the Restricted Parties as a whole to perform
and discharge their obligations under this Agreement or the
Material Contracts taken as a whole, in each case unless a
Replacement Contract is entered into in respect of the
Material Contract in question.
11.2 ACCELERATION AND TERMINATION OF RIGHTS
If any Event of Default occurs, no Lender shall be under any further
obligation to make Advances and the Majority Lenders may instruct the Agent to
give notice to the Borrower (i) declaring the Lenders' obligations to make
Advances to be terminated, whereupon the same shall forthwith terminate, (ii)
declaring the Obligations or any of them to be forthwith due and payable,
whereupon they shall become and be forthwith due and payable without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower, and/or (iii) demanding that the
Borrower deposit forthwith with the Agent for the Lenders' benefit Collateral
equal to the full principal amount at maturity of all L/Cs and Bankers'
Acceptances then outstanding for its account.
Notwithstanding the preceding paragraph, if a Restricted Party
becomes a bankrupt (voluntarily or involuntarily), or institutes any proceeding
seeking liquidation, rearrangement, relief of debtors or creditor or the
appointment of a receiver or trustee over any material part of its Property,
then without prejudice to the other rights of the Lenders as a result of any
such event, without any notice or action of any kind by the Agent or the
Lenders, and without presentment, demand or protest, the Lenders' obligation to
make Advances shall immediately terminate, the Obligations shall immediately
become due and payable and the Borrower shall be obligated to deposit forthwith
with the Agent for the Lenders' benefit Collateral equal to the full principal
amount at maturity of all L/Cs and Bankers' Acceptances then outstanding
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for its account.
11.3 PAYMENT OF L/CS
Immediately upon any Obligations becoming due and payable under
Section 11.2, the Borrower shall, without necessity of further act or evidence,
be and become thereby unconditionally obligated to deposit forthwith with the
Agent for the Lenders' benefit Collateral equal to the full principal amount at
maturity of all L/Cs and Bankers' Acceptances then outstanding for its account
and the Borrower hereby unconditionally promises and agrees to deposit with the
Agent immediately upon such demand Collateral in the amount so demanded. The
Borrower authorizes the Lenders, or any of them, to debit its accounts with the
amount required to pay such L/Cs and to pay such Bankers' Acceptances,
notwithstanding that such Bankers' Acceptances may be held by the Lenders, or
any of them, in their own right at maturity. Amounts paid to the Agent pursuant
to such a demand in respect of Bankers' Acceptances and L/Cs shall be applied
against, and shall reduce, PRO RATA among the Lenders, to the extent of the
amounts paid to the Agent in respect of Bankers' Acceptances and L/Cs,
respectively, the obligations of the Borrower to pay amounts then or thereafter
payable under Bankers' Acceptances and L/Cs, respectively, at the times amounts
become payable thereunder.
The Borrower shall be entitled to receive interest on cash held as
Collateral in accordance with Section 14.16.
11.4 REMEDIES
Upon the occurrence of any event by which any of the Obligations
become due and payable under Section 11.2, the Security shall become immediately
enforceable and the Majority Lenders may instruct the Agent to take such action
or proceedings on behalf of the Lenders and in compliance with applicable
Requirements of Law as the Majority Lenders in their sole discretion deem
expedient to enforce the same, all without any additional notice, presentment,
demand, protest or other formality, all of which are hereby expressly waived by
the Restricted Parties.
11.5 SAVING
The Lenders shall not be under any obligation to the Restricted
Parties or any other person to realize any collateral or enforce the Security or
any part thereof or to allow any of the collateral to be sold, dealt with or
otherwise disposed of. The Lenders shall not be responsible or liable to the
Restricted Parties or any other person for any loss or damage upon the
realization or enforcement of, the failure to realize or enforce the collateral
or any part thereof or the failure to allow any of the collateral to be sold,
dealt with or otherwise disposed of or for any act or omission on their
respective parts or on the part of any director, officer,
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agent, servant or adviser in connection with any of the foregoing, except that a
Lender may be responsible or liable for any loss or damage arising from the
wilful misconduct or gross negligence of that Lender.
11.6 PERFORM OBLIGATIONS
If an Event of Default has occurred and is continuing and if any
Restricted Party has failed to perform any of its covenants or agreements in the
Credit Documents, the Majority Lenders, may, but shall be under no obligation
to, instruct the Agent on behalf of the Lenders to perform any such covenants or
agreements in any manner deemed fit by the Majority Lenders without thereby
waiving any rights to enforce the Credit Documents. The reasonable expenses
(including any legal costs) paid by the Agent and/or the Lenders in respect of
the foregoing shall be secured by the Security.
11.7 THIRD PARTIES
No person dealing with the Lenders or any agent of the Lenders shall
be concerned to inquire whether the Security has become enforceable, or whether
the powers which the Lenders are purporting to exercise have become exercisable,
or whether any Obligations remain outstanding upon the security thereof, or as
to the necessity or expediency of the stipu lations and conditions subject to
which any sale shall be made, or otherwise as to the propriety or regularity of
any sale or other disposition or any other dealing with the collateral charged
by such Security or any part thereof.
11.8 POWER OF ATTORNEY
Effective upon occurrence of an Event of Default, each Restricted
Party hereby irrevocably constitutes and appoints any Vice-President, Managing
Director or more senior officer of the Agent its due and lawful attorney with
full power of substitution in its name and on its behalf, during the continuance
of an Event of Default, to enforce any right, title or interest of the Lenders
in, to or under the Security or any part thereof or any obligation to that
Restricted Party or remedy available to that Restricted Party. This appointment
is irrevocable to the maximum extent permitted by applicable law.
11.9 REMEDIES CUMULATIVE
The rights and remedies of the Lenders under the Credit Documents
are cumulative and are in addition to and not in substitution for any rights or
remedies provided by law. Any single or partial exercise by the Lenders of any
right or remedy for a default or breach of any term, covenant, condition or
agreement herein contained shall not be deemed to be a waiver of or to alter,
affect, or prejudice any other right or remedy or other rights or remedies to
which the Lenders may be lawfully entitled for the same default or breach. Any
waiver by
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the Lenders of the strict observance, performance or compliance with any term,
covenant, condition or agreement herein contained, and any indulgence granted by
the Lenders shall be deemed not to be a waiver of any subsequent default.
11.10 SET-OFF OR COMPENSATION
In addition to and not in limitation of any rights now or hereafter
granted under applicable law, if the Obligations become due and payable pursuant
to Section 11.2, the Lenders, or any of them, may at any time and from time to
time without notice to the Restricted Parties or any other person, any notice
being expressly waived by the Restricted Parties, set-off and compensate and
apply any and all deposits, general or special, time or demand, provisional or
final, matured or unmatured, and any other indebtedness at any time owing by the
Lenders, or any of them, to or for the credit of or the account of any
Restricted Party against and on account of the Obligations notwithstanding that
any of them are contingent or unmatured.
ARTICLE XII
THE AGENT AND THE LENDERS
12.1 AUTHORIZATION OF AGENT AND RELATIONSHIP
Each Lender hereby appoints TD as Agent and TD hereby accepts such
appointment. The appointment may only be terminated as expressly provided in
this Agreement. Each Lender hereby authorizes the Agent to take all action on
its behalf and to exercise such powers and perform such duties under this
Agreement as are expressly delegated to the Agent by its terms, together with
all powers reasonably incidental thereto. The Agent shall have only those duties
and responsibilities which are of a solely mechanical and administrative nature
and which are expressly specified in this Agreement, and it may perform such
duties by or through its agents or employees, but shall not by reason of this
Agreement have a fiduciary duty in respect of any Lender. As to any matters not
expressly provided for by this Agreement, the Agent is not required to exercise
any discretion or to take any action, but is required to act or to refrain from
acting (and is fully protected in so acting or refraining from acting) upon the
instructions of the Lenders or the Majority Lenders, as the case may be. Those
instructions shall be binding upon all Lenders, but the Agent is not required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law.
Without limiting the foregoing, each of the Lenders hereby grants to
the Agent a power of attorney, for the purposes of laws applicable to the
Security from time to time, to sign documents comprising the Security from time
to time (as the party accepting the grant of the security), and also grants to
the Agent the right to delegate its authority as attorney to
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any other person, whether or not an officer or employee of the Agent. Each of
the Lenders also hereby grants to the Agent, while it is acting as collateral
agent or trustee in connection with the Security, a power of attorney, for the
purposes of Article 2692 of the Civil Code of Quebec and for the purposes of
other laws applicable to the Security from time to time, to sign documents
comprising the Security from time to time (as the party accepting the grant of
the security), and also grants to the Agent in that capacity the right to
delegate its authority as attorney to any other person, whether or not an
officer or employee of the Agent.
Without limiting the foregoing, the Agent may perform its duties
through one or more of its offices, may designate different offices for the
performance of different duties from time to time and may delegate its duties to
one or more of its affiliates from time to time, including but not limited to
the US Agent. The provisions of this Agreement regarding the Agent shall apply
MUTATIS MUTANDIS to the US Agent and other affiliates of the Agent to whom
duties may be delegated from time to time.
Neither the Arrangers nor the Syndication Agents have any
responsibility to the Borrower or the Lenders in that capacity.
12.2 DISCLAIMER OF AGENT
The Agent makes no representation or warranty, and assumes no
responsibility with respect to the due execution, legality, validity,
sufficiency, enforceability or collectability of this Agreement or any other
Credit Document. The Agent assumes no responsibility for the financial condition
of the Restricted Parties, or for the performance of the obligations of the
Restricted Parties under this Agreement or any other Credit Document. The Agent
assumes no responsibility with respect to the accuracy, authenticity, legality,
validity, sufficiency or enforceability of any documents, papers, materials or
other information furnished by the Restricted Parties to the Agent on behalf of
the Lenders. The Agent shall not be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or as to the use of the proceeds of the Credits
or (unless the officers or employees of the Lender acting as Agent active in
their capacity as officers or employees on the Restricted Parties' accounts have
actual knowledge thereof, or have been notified thereof in writing by a
Restricted Party or a Lender) of the existence or possible existence of any
Event of Default or Pending Event of Default. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them as Agent under or in connection with the
Agreement except for its or their own gross negligence or wilful misconduct.
With respect to its Commitment, the Lender acting as Agent shall have the same
rights and powers hereunder as any other Lender, and may exercise the same as
though it were not performing the duties and functions delegated to it as Agent
hereunder.
12.3 FAILURE OF LENDER TO FUND
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12.3.1 Unless the Agent has actual knowledge that a Lender has not made or
will not make available to the Agent for value on a Drawdown Date the applicable
amount required from such Lender pursuant to Sections 8.11 or 8.15, the Agent
shall be entitled to assume that such amount has been or will be received from
such Lender when so due and the Agent may (but shall not be obliged to), in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not in fact received by the Agent from such Lender on
such Drawdown Date and the Agent has made available a corresponding amount to
the Borrower on such Drawdown Date as aforesaid, such Lender shall pay to the
Agent on demand an amount equal to the product of (i) the Interbank Reference
Rate per annum multiplied by (ii) the amount that should have been paid to the
Agent by such Lender on such Drawdown Date and was not, multiplied by (iii) a
fraction, the numerator of which is the number of days that have elapsed from
and including such Drawdown Date to but excluding the date on which the amount
is received by the Agent from such Lender and the denominator of which is 365. A
certificate of the Agent containing details of the amount owing by a Lender
under this Section shall be binding and conclusive in the absence of manifest
error. If any such amount is not in fact received by the Agent from such Lender
on such Drawdown Date, the Agent shall be entitled to recover from the Borrower,
on demand, the related amount made available by the Agent to the Borrower as
aforesaid together with interest thereon at the applicable rate per annum
payable by the Borrower hereunder.
12.3.2 Notwithstanding the provisions of Section 12.3.1, if any Lender
fails to make available to the Agent its Proportionate Share of any Advance
(such Lender being herein called the "DEFAULTING LENDER"), the Agent shall
forthwith give notice of such failure by the Defaulting Lender to the Borrower
and the other Lenders. The Agent shall then forthwith give notice to the other
Lenders that any Lender may make available to the Agent all or any portion of
the Defaulting Lender's Proportionate Share of such Advance (but in no way shall
any other Lender or the Agent be obliged to do so) in the place of the
Defaulting Lender. If more than one Lender gives notice that it is prepared to
make funds available in the place of a Defaulting Lender in such circumstances
and the aggregate of the funds which such Lenders (herein collectively called
the "CONTRIBUTING LENDERS" and individually called the "CONTRIBUTING LENDER")
are prepared to make available exceeds the amount of the Advance which the
Defaulting Lender failed to make, then each Contributing Lender shall be deemed
to have given notice that it is prepared to make available its Proportionate
Share of such Advance based on the Contributing Lenders' relative commitments to
advance in such circumstances. If any Contributing Lender makes funds available
in the place of a Defaulting Lender in such circumstances, then the Defaulting
Lender shall pay to any Contributing Lender making the funds available in its
place, forthwith on demand, any amount advanced on its behalf together with
interest thereon at the rate applicable to such Advance from the date of advance
to the date of payment, against payment by the Contributing Lender making the
funds available of all interest received in respect of the Advance from the
Borrower. The failure of any Lender to make available to the Agent its
Proportionate Share of any Advance as required herein shall not relieve any
other Lender of its obligations to make available to
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the Agent its Proportionate Share of any Advance as required herein.
12.4 PAYMENTS BY THE BORROWER
All payments made by or on behalf of the Borrower pursuant to this
Agreement shall be made to and received by the Agent and shall be distributed by
the Agent to the Lenders as soon as possible upon receipt by the Agent. Except
as required to make payments in respect of the Other Secured Obligations or as
otherwise provided in this Agreement (including but not limited to Sections
5.1.7 and 12.5), the Agent shall distribute:
(a) payments of interest in accordance with each Lender's
Proportionate Share of the relevant Credit;
(b) repayments of principal in accordance with each Lender's
Proportionate Share of the relevant Credit; or
(c) all other payments received by the Agent including, without
limitation, amounts received upon the realization of Security,
in accordance with each Lender's Proportionate Share of the
relevant Credit provided, however, that with respect to
proceeds of realization, no Lender shall receive an amount in
excess of the amounts owing to it in respect of the
Obligations.
If the Agent does not distribute a Lender's share of a payment made
by the Borrower to that Lender for value on the day that payment is made or
deemed to have been made to the Agent, the Agent shall pay to the Lender on
demand an amount equal to the product of (i) the Interbank Reference Rate per
annum multiplied by (ii) the Lender's share of the amount received by the Agent
from the Borrower and not so distributed, multiplied by (iii) a fraction, the
numerator of which is the number of days that have elapsed from and including
the date of receipt of the payment by the Agent to but excluding the date on
which the payment is made by the Agent to such Lender and the denominator of
which is 365.
12.5 PAYMENTS BY AGENT
12.5.1 For greater certainty, the following provisions shall apply to any and
all payments made by the Agent to the Lenders hereunder:
(a) the Agent shall be under no obligation to make any payment
(whether in respect of principal, interest, fees or otherwise)
to any Lender until an amount in respect of such payment has
been received by the Agent from the Borrower;
(b) if the Agent receives less than the full amount of any payment
of principal,
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interest, fees or other amount owing by the Borrower under
this Agreement, the Agent shall have no obligation to remit to
each Lender any amount other than such Lender's Proportionate
Share of that amount which is the amount actually received by
the Agent;
(c) if any Lender advances more or less than its Proportionate
Share of a Credit, such Lender's entitlement to such payment
shall be increased or reduced, as the case may be, in
proportion to the amount actually advanced by such Lender;
(d) if a Lender's Proportionate Share of an Advance has been
advanced, or a Lender's Commitment has been outstanding, for
less than the full period to which any payment (other than a
payment of principal) by the Borrower relates, such Lender's
entitlement to such payment shall be reduced in proportion to
the length of time such Lender's Proportionate Share of the
relevant Credit or such Lender's Commitment, as the case may
be, has actually been outstanding;
(e) the Agent acting reasonably and in good faith shall, after
consultation with the Lenders in the case of any dispute,
determine in all cases the amount of all payments to which
each Lender is entitled and such determination shall, in the
absence of manifest error, be binding and conclusive; and
(f) upon request, the Agent shall deliver a statement detailing
any of the payments to the Lenders referred to herein.
12.5.2 Unless the Agent has actual knowledge that the Borrower has not made
or will not make a payment to the Agent for value on the date in respect of
which the Borrower has notified the Agent that the payment will be made, the
Agent shall be entitled to assume that such payment has been or will be received
from the Borrower when due and the Agent may (but shall not be obliged to), in
reliance upon such assumption, pay the Lenders corresponding amounts. If the
payment by such Borrower is in fact not received by the Agent on the required
date and the Agent has made available corresponding amounts to the Lenders, the
Borrower shall, without limiting its other obligations under this Agreement,
indemnify the Agent against any and all liabilities, obligations, losses,
damages, penalties, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on or incurred by the Agent as a result, except
for those arising from the Agent's gross negligence or wilful misconduct. A
certificate of the Agent with respect to any amount owing by the Borrower under
this Section shall be conclusive evidence of the amount owing in the absence of
manifest error. If the payment is not received by the Agent from the Borrower
within a reasonable time following the disbursement to the Lenders by the Agent,
the Lenders shall return the amounts received by them to the Agent with interest
at the Interbank Reference
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Rate.
12.6 DIRECT PAYMENTS
The Lenders agree among themselves that, except as otherwise
provided for in this Agreement (including but not limited to Sections 14.14 and
14.15), except as necessary to adjust for Advances that are not in each Lender's
Proportionate Share under the Credits, and except for receipts relating to the
Other Secured Obligations, all sums received by a Lender relating to this
Agreement or by virtue of the Security, whether received by voluntary payment,
by the exercise of the right of set-off or compensation or by counterclaim,
cross-action or as proceeds of realization of any Security or otherwise, shall
be shared by each Lender in its Proportionate Share under the Credits and each
Lender undertakes to do all such things as may be reasonably required to give
full effect to this Section, including without limitation, the purchase from
other Lenders of such notes or a portion thereof by the Lender who has received
an amount in excess of its Proportionate Share under the Credits as shall be
necessary to cause such purchasing Lender to share the excess amount rateably in
its Proportionate Share under the Credits with the other Lenders. If any sum
which is so shared is later recovered from the Lenders who originally received
it, the Lender shall restore its Proportionate Share under the Credits of such
sum to such Lenders, without interest. If any Lender shall obtain any payment of
moneys due under this Agreement as referred to above, it shall forthwith remit
such payment to the Agent and, upon receipt, the Agent shall distribute such
payment in accordance with the provisions of Section 12.5.
12.7 ADMINISTRATION OF THE CREDITS
12.7.1 Unless otherwise specified herein, the Agent shall perform the
following duties under this Agreement:
(a) prior to an Advance, ensure that all conditions precedent have
been fulfilled in accordance with the terms of this Agreement,
subject to Section 12.8.2 and any other applicable terms of
this Agreement;
(b) take delivery of each Lender's Proportionate Share of an
Advance and make all Advances hereunder in accordance with the
procedures set forth in Sections 8.11 and 8.15;
(c) use reasonable efforts to collect promptly all sums due and
payable by the Borrower pursuant to this Agreement;
(d) make all payments to the Lenders in accordance with the
provisions hereof;
(e) hold the Security other than the Trustee Security on behalf of
the Lenders and
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take all necessary steps to comply with registration
requirements so that the Security remains perfected under
applicable laws, but each Lender shall notify the Agent of any
circumstance that might affect the perfection of the Security
of which the Lender becomes aware;
(f) hold all legal documents relating to the Credits, maintain
complete and accurate records showing all Advances made by the
Lenders, all remittances and payments made by the Borrower to
the Agent, all remittances and payments made by the Agent to
the Lenders and all fees or any other sums received by the
Agent and, except for accounts, records and documents relating
to the fees payable under the Fee Agreement, allow each Lender
and their respective advisors to examine such accounts,
records and documents at their own expense, and provide any
Lender, upon reasonable notice, with such copies thereof as
such Lender may reasonably require from time to time at the
Lender's expense;
(g) except as otherwise specifically provided for in this
Agreement, promptly advise each Lender upon receipt of each
notice and deliver to each Lender, promptly upon receipt, all
other written communications furnished by the Restricted
Parties to the Agent on behalf of the Lenders pursuant to this
Agreement, including without limitation copies of financial
reports and certificates which are to be furnished to the
Agent;
(h) forward to each of the Lenders, upon request and at the
expense of the Lender so requesting (other than customary
record books which shall be provided at the expense of the
Borrower), copies of this Agreement, the Security and other
Credit Documents (other than the Fee Agreement);
(i) promptly forward to each Lender, upon request, an up-to-date
loan status report; and
(j) upon learning of same, promptly advise each Lender in writing
of the occurrence of an Event of Default or Pending Event of
Default or the occurrence of any event, condition or
circumstance which would cause a Material Adverse Change or of
any material adverse information coming to the attention of
the Agent (using reasonable efforts) relative to the Security,
provided that, except as aforesaid, the Agent shall be under
no duty or obligation whatsoever to provide any notice to the
Lenders and further provided that each Lender hereby agrees to
notify the Agent of any Event of Default or Pending Event of
Default of which it may reasonably become aware.
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12.7.2 The Agent may take the following actions only with the prior consent
of the Majority Lenders, unless otherwise specified in this Agreement:
(a) subject to Sections 12.7.4 and 12.7.3, exercise any and all
rights of approval conferred upon the Lenders by this
Agreement;
(b) give written notice to the Restricted Parties in respect of
any matter in respect of which notice may be required,
permitted, necessary or desirable in accordance with or
pursuant to this Agreement, promptly after receiving the
consent of the Majority Lenders, except that the Agent shall,
without direction from the Lenders, immediately give the
Borrower notice of any payment that is due or overdue under
the terms of this Agreement unless the Agent considers that it
should request the direction of the Majority Lenders, in which
case the Agent shall promptly request that direction;
(c) amend, modify or waive any of the terms of this Agreement,
including waiver of an Event of Default or Pending Event of
Default, if such action is not otherwise provided for in
Sections 12.7.4 or 12.7.3;
(d) declare an Event of Default or take action to enforce
performance of the Obligations and to realize upon the
Security including the appointment of a receiver, the exercise
of powers of distress, lease or sale given by the Security or
by law and take foreclosure proceedings and/or pursue any
other legal remedy necessary;
(e) decide to accelerate the amounts outstanding under the
Credits;
(f) pay insurance premiums, taxes and any other sums as may be
reasonably required to protect the interests of the Lenders;
and
(g) enter into or amend, modify or waive any term of any
Intercreditor Agreement.
12.7.3 Unless otherwise specified herein, the Agent may take the following
actions only on the following basis:
(a) amend, modify, discharge, terminate or waive any of the terms
of this Agreement in a manner that adversely affects the
rights in respect of payments due to the Operating Credit
Lenders, the Term Credit A Lenders or the Term Credit B
Lenders as classes in a way that is different from the way the
other classes of Lenders are affected (such as by changing the
way in which payments are shared among classes), except with
the prior consent of Lenders
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holding at least 66 2/3% of the outstanding Commitments in
each class of Lenders that is adversely affected;
(b) amend, modify, discharge, terminate or waive the right of the
Term Credit B Lenders to decline prepayment in accordance with
Section 5.1.7 except with the prior consent of Term Credit B
Lenders holding at least 66 2/3% of the outstanding
Commitments in respect of Term Credit B.
12.7.4 The Agent may take the following actions only if the prior unanimous
consent of the Lenders is obtained, unless otherwise specified herein:
(a) amend, modify, discharge, terminate or waive any of the terms
of the Security, other than the pledge of the Capital Stock of
▇▇▇▇ & ▇▇▇▇▇▇, Inc. required under Section 6.1.1(d), which may
be released by the Agent as set forth in Section 6.1;
(b) amend, modify, discharge, terminate or waive any of the terms
of this Agreement if such amendment, modification, discharge,
termination or waiver would increase the amount of any Credit,
amend the purpose of any Credit, reduce the interest rates and
similar charges applicable to any Credit, reduce the fees
payable with respect to any Credit, extend any date fixed for
payment of principal, interest or any other amount relating to
any Credit or extend the term of any Credit (for greater
certainty, any extension of the Operating Credit shall be made
in accordance with Section 2.4 and individual Term Credit B
Lenders are entitled to decline payments to the extent
permitted by Section 5.1.7); and
(c) amend the definition of "Majority Lenders" or this Section
12.7.4.
For greater certainty, no Lender's Commitment or Proportionate Share
may be amended without the consent of that Lender.
12.7.5 Notwithstanding Sections 12.7.2, 12.7.4 and 12.7.3, the Agent may,
without the consent of the Lenders, make amendments to the Credit Documents that
are for the sole purpose of curing any immaterial or administrative ambiguity,
defect or inconsistency, but shall immediately notify the Lenders of any such
action. The Agent may also consent to any change to the list of Material
Contracts contained in Schedule G and may discharge any Security (or direct the
Trustee to do so) to the extent necessary to allow any Restricted Party to
complete any sale or other disposition of Property permitted by this Agreement.
12.7.6 As between the Restricted Parties, on the one hand, and the Agent
and the Lenders, on the other hand:
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(a) all statements, certificates, consents and other documents
which the Agent purports to deliver on behalf of the Lenders
or the Majority Lenders shall be binding on each of the
Lenders, and the Restricted Parties shall not be required to
ascertain or confirm the authority of the Agent in delivering
such documents;
(b) all certificates, statements, notices and other documents
which are delivered by the Restricted Parties to the Agent in
accordance with this Agreement shall be deemed to have been
duly delivered to each of the Lenders;
(c) all payments which are delivered by the Borrower to the Agent
in accordance with this Agreement shall be deemed to have been
duly delivered to each of the Lenders;
(d) unless an Event of Default or Pending Event of Default has
occurred and is continuing, NSCL's consent to the appointment
of any Successor Agent must be obtained, but NSCL's consent
shall not be unreasonably withheld.
12.8 RIGHTS OF AGENT
12.8.1 In administering the Credits, the Agent may retain, at the expense of the
Lenders if such expenses are not recoverable from the Borrower, such solicitors,
counsel, auditors and other experts and agents as the Agent may select, in its
sole discretion, acting reasonably and in good faith after consultation with the
Lenders.
12.8.2 The Agent shall be entitled to rely on any communication, instrument
or document believed by it to be genuine and correct and to have been signed by
the proper individual or individuals, and shall be entitled to rely and shall be
protected in relying as to legal matters upon opinions of independent legal
advisors selected by it. The Agent may also assume that any representation made
by a Restricted Party is true and that no Event of Default or Pending Event of
Default has occurred unless the officers or employees of the Lender acting as
Agent, active in their capacity as officers or employees responsible for the
Restricted Parties' account have actual knowledge to the contrary or have
received notice to the contrary from any other party to this Agreement.
12.8.3 The Agent may, without any liability to account, accept deposits
from and lend money to and generally engage in any kind of banking, or other
business with the Restricted Parties, as if it were not the Agent.
12.8.4 Except in its own right as a Lender, the Agent shall not be required
to advance its own funds for any purpose, and in particular, shall not be
required to pay with its own funds insurance premiums, taxes or public utility
charges or the cost of repairs or maintenance with
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respect to the assets which are the subject matter of the Security, nor shall it
be required to pay with its own funds the fees of solicitors, counsel, auditors,
experts or agents engaged by it as permitted hereby.
12.8.5 The Agent shall be entitled to receive a fee for acting as Agent as
agreed in the Fee Agreement or as otherwise agreed between the Agent and NSCL
from time to time.
12.9 ACKNOWLEDGEMENTS, REPRESENTATIONS AND COVENANTS OF LENDERS
12.9.1 It is acknowledged and agreed by each Lender that it has itself
been, and will continue to be, solely responsible for making its own independent
appraisal of and investigations into the financial condition, creditworthiness,
property, affairs, status and nature of the Restricted Parties. Accordingly,
each Lender confirms to the Agent that it has not relied, and will not hereafter
rely, on the Agent (a) to check or inquire on its behalf into the adequacy or
completeness of any information provided by the Restricted Parties under or in
connection with this Agreement or the transactions herein contemplated (whether
or not such information has been or is hereafter distributed to such Lender by
the Agent) or (b) to assess or keep under review on its behalf the financial
condition, creditworthiness, property, affairs, status or nature of the
Restricted Parties.
12.9.2 Each Lender represents and warrants that it has the legal capacity
to enter into this Agreement pursuant to its charter and any applicable
legislation and has not violated its charter, constating documents or any
applicable legislation by so doing.
12.9.3 Each Lender agrees to indemnify the Agent (to the extent not
reimbursed by the Borrower), rateably according to its Proportionate Share from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by, or asserted against the
Agent in any way relating to or arising out of the Credit Documents or the
transactions therein contemplated, provided that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from the
Agent's gross negligence or wilful misconduct. Without limiting the generality
of the foregoing, each Lender agrees to reimburse the Agent for its
Proportionate Share of any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the preservation of any rights of the
Agent or the Lenders under, or the enforcement of, or legal advice in respect of
rights or responsibilities under this Agreement, to the extent that the Agent is
not reimbursed for such expenses by the Borrower. The obligation of the Lenders
to indemnify the Agent shall survive the termination of this Agreement and shall
be performed by the Lenders promptly upon demand by the Agent.
12.9.4 Each of the Lenders acknowledges and confirms that in the event that
the Agent
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does not receive payment in accordance with this Agreement, it shall not be the
obligation of the Agent to maintain the Credits in good standing nor shall any
Lender have recourse to the Agent in respect of any amounts owing to such Lender
under this Agreement.
12.9.5 Each Lender acknowledges and agrees that its obligation to advance
its Proportionate Share of Advances in accordance with the terms of this
Agreement is independent and in no way related to the obligation of any other
Lender hereunder.
12.9.6 Each Lender hereby acknowledges receipt of a copy of this Agreement
and the Security (to the extent that the Security has been delivered) and
acknowledges that it is satisfied with the form and content of such documents.
12.10 COLLECTIVE ACTION OF THE LENDERS
Each of the Lenders hereby acknowledges that to the extent permitted
by applicable law, the Security and the remedies provided under the Credit
Documents to the Lenders are for the benefit of the Lenders collectively and
acting together and not severally and further acknowledges that its rights
hereunder and under the Security are to be exercised not severally, but by the
Agent upon the decision of the Majority Lenders or Lenders as required by this
Agreement. Accordingly, notwithstanding any of the provisions contained herein
or in the Security each of the Lenders hereby covenants and agrees that it shall
not be entitled to take any action hereunder or thereunder including, without
limitation, any declaration of default hereunder or thereunder but that any such
action shall be taken only by the Agent with the prior written agreement of the
Majority Lenders. Each of the Lenders hereby further covenants and agrees that
upon any such written agreement being given by the Majority Lenders, it shall
co-operate fully with the Agent to the extent requested by the Agent.
Notwithstanding the foregoing, in the absence of instructions from the Lenders
and where in the sole opinion of the Agent, acting reasonably and in good faith,
the exigencies of the situation warrant such action, the Agent may without
notice to or consent of the Lenders take such action on behalf of the Lenders as
it deems appropriate or desirable in the interest of the Lenders.
12.11 SUCCESSOR AGENT
Subject to the appointment and acceptance of a Successor Agent as
provided in this Section, and subject to Section 12.7.6(d), the Agent may resign
at any time by giving 30 days' written notice thereof to the Lenders and NSCL,
and may be removed at any time by the Majority Lenders upon 30 days' written
notice. Upon receipt of notice by the Lenders of the resignation of the Agent,
or upon giving notice of termination to the Agent, the Majority Lenders may,
within 21 days, appoint a successor from among the Lenders or, if no Lender is
willing to accept such an appointment, from among other banks to which the BANK
ACT (Canada) applies, which each have combined capital and reserves in excess of
$250,000,000,
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and which have offices in Vancouver, Toronto and New York (the "SUCCESSOR
AGENT"). If no Successor Agent has been so appointed and has accepted such
appointment within 21 days after the retiring Agent's giving of notice of
resignation or receiving of notice of termination, then the retiring Agent may,
on behalf of the Lenders, appoint a Successor Agent. Upon the acceptance of any
appointment as Agent hereunder by a Successor Agent, the retiring Agent shall
pay the Successor Agent any unearned portion of any fee paid to the Agent for
acting as such, and the Successor Agent shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its further duties and obligations as
Agent under this Agreement and the other Credit Documents. After any retiring
Agent's resignation hereunder as Agent, the provisions of this Article shall
continue to enure to its benefit and be binding upon it as to any actions taken
or omitted to be taken by it while it was Agent hereunder.
12.12 PROVISIONS OPERATIVE BETWEEN LENDERS AND AGENT ONLY
Except for the provisions of Sections 12.7.6, 12.9.2, 12.9.5, 12.10,
12.11 and 12.12, the provisions of this Article relating to the rights and
obligations of the Lenders and the Agent INTER SE shall be operative as between
the Lenders and the Agent only, and the Restricted Parties shall not have any
rights or obligations under or be entitled to rely for any purpose upon such
provisions.
ARTICLE XIII
ADDITIONAL LENDERS,
SUCCESSORS AND ASSIGNS
13.1 SUCCESSORS AND ASSIGNS
13.1.1 The Credit Documents shall be binding upon and enure to the benefit
of the Agent, the Arrangers, each Lender, the Restricted Parties and their
respective successors and permitted assigns, except that the Restricted Parties
shall not assign any rights or obligations with respect to this Agreement or any
of the other Credit Documents without the prior written consent of each Lender.
The collective rights and obligations of the Lenders under this
greement are assignable in whole or in part (PRO RATA) and any Lender shall be
entitled to assign in whole or in part its individual rights and obligations
hereunder or to permit other financial institutions to participate in the
Credits, all in accordance with the provisions of Section 13.2 and the other
terms of this Agreement. The Restricted Parties hereby consent to the disclosure
of any information relating to the Restricted Parties to any potential Lender or
participant provided that the potential Lender or participant agrees in writing
to keep the information confidential.
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No assignment shall be made in respect of an aggregate Commitment of
less than $5,000,000 in respect of the Operating Credit and/or Term Credit A, or
less than US $1,000,000 in respect of Term Credit B. No assignment may result in
the Commitment of any Lender, determined as of the effective date of the
Assignment Agreement with respect to such assignment, being less than
$10,000,000, except that the Commitment of any Term Credit B Lender or the
aggregate of the Commitment of any Term Credit B Lender and its Affiliated Funds
may be not less than US $1,000,000 in respect of Term Credit B.
Notwithstanding any other provisions of this Agreement, each Lender
agrees that it shall not offer to assign or assign any portion of its rights and
obligations under this Agreement including, without limitation, any portion of
its Commitment, without the prior written consent of the Agent and NSCL, which
consent shall not be unreasonably withheld, except that (i) the consent of the
Agent and NSCL shall not be required for an assignment of its interest in Term
Credit B by a Lender to an Affiliated Fund of that Lender or to another Lender
and (ii) the consent of NSCL shall not be required if an Event of Default has
occurred and is continuing or in connection with an assignment by TD, RBC or
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Canada Inc. The Lenders agree that NSCL's consent shall
not be considered to be unreasonably withheld if the proposed assignment would
result in any material additional cost being incurred by the Borrower, including
but not limited to any gross-up for withholding tax under Section 14.14.
Notwithstanding the foregoing, the Borrower may not withhold its consent because
of any increase in the discount rate applicable to Bankers' Acceptances of the
proposed assignee compared to the assignor or any gross-up for withholding tax
that may be applicable as a result of an assignment by TD, RBC and/or ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital Canada Inc. in order to achieve their desired hold positions in
the syndication of the Credits.
13.1.2 Notwithstanding Section 13.1.1, any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including without limitation (i)
any pledge or assignment to secure obligations to a Federal Reserve Bank and
(ii) in the case of any Lender that is a Fund, any pledge or assignment to any
holders of obligations owed, or securities issued, by such Lender including to
any trustee for, or any other representative of, such holders; provided that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto; and provided that the Borrower and the Restricted
Parties shall not be liable for any increased costs as a result of such pledge
or assignment, including any payment required to be made to a Federal Reserve
Bank and any other such pledgee or assignee.
13.1.3 A participation by a Lender of its interest (or a part thereof)
hereunder or a payment by a participant to a Lender as a result of the
participation will not constitute a payment hereunder to the Lender or an
Advance to the Borrower. A payment (excluding the effect of any premium or
discount) made by an assignee to an assigning Lender in order for the assignee
to assume its Proportionate Share of Advances made by the assigning Lender will
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reduce the Advances owing by the Borrower to the assigning Lender by the amount
of the payment and will be result in Advances in the amount of the payment
becoming owed to the assignee by the Borrowers as of the date that the payment
is made. However, no such payment shall, as between the Borrowers and the
Lenders, be or be deemed to be a repayment by the Borrowers or a new Advance by
the Lenders.
13.2 ASSIGNMENTS
13.2.1 Subject to Section 13.1 and the other terms of this Agreement, the
Lenders collectively or individually may assign to one or more assignees all or
a portion of their respective rights and obligations under this Agreement
(including, without limitation, all or a portion of their respective
Commitments). The parties to each such assignment shall execute and deliver an
Assignment Agreement to the Agent, for its consent (if necessary) and recording
in the Register and, except in the case of the initial assignments of Term
Credit B by TD, RBC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Canada Inc. to persons who are not
Lenders at the date of this Agreement but who have at the date of this Agreement
provided commitments to become Lenders, and assignments by TD, RBC and ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital Canada Inc. to each other, shall pay a processing and recording
fee to the Agent in the amount of $3500 in the case of each assignment by an
Operating Credit Lender or Term Credit A Lender or US $3500 in the case of each
assignment by a Term Credit B Lender. After such execution, delivery, consent
and recording (i) the assignee thereunder shall be a party to this Agreement
and, to the extent that rights and obligations hereunder have been assigned to
it, have the rights and obligations of a Lender hereunder and (ii) the assigning
Lender thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment Agreement, relinquish its
rights, other than rights to expense reimbursement and indemnification to which
it is then entitled hereunder, and be released from its obligations under this
Agreement, other than obligations in respect of which it is then in default and
liabilities arising from its actions prior to the assignment. In the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto.
13.2.2 The agreements of an assignee contained in an Assignment Agreement
shall benefit the assigning Lender thereunder, the other Lenders and the Agent
in accordance with the terms of the Assignment Agreement.
13.2.3 The Agent shall maintain at its address referred to herein a copy
of each Assignment Agreement delivered to and acknowledged by it and a register
for recording the names and addresses of the Lenders and the Commitment under
the Credits of each Lender from time to time (the "REGISTER"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error. The Borrower, the Agent and each of the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement, and need not recognize any person as a Lender unless it
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is recorded in the Register as a Lender. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
13.2.4 Upon its receipt of an Assignment Agreement executed by an assigning
Lender and an assignee and approved by the Agent (as evidenced by its execution
thereof), the Agent shall, if the Assignment Agreement has been completed and is
in the required form with such immaterial changes as are acceptable to the
Agent, record the information contained therein in the Register and update
Schedule E. The Agent shall provide NSCL with an updated version of Schedule E
not less frequently than quarterly.
13.3 PARTICIPATIONS
Each Lender may (subject to the provisions of Section 13.1) sell
participations to one or more financial institutions or other persons in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment), but the participant
shall not become a Lender and:
(a) the Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(b) the Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Borrower, the Agent and the other Lenders shall continue
to deal solely and directly with the Lender in connection with
the Lender's rights and obligations under this Agreement;
(d) no participant shall have any right to approve any amendment
or waiver of any provision of this Agreement, or any consent
to any departure by any person therefrom.
Notwithstanding the foregoing, each participant shall have the same
benefit, as if it was a Lender, with respect to the rights provided to the
Lenders in Section 14.15. Each participant shall also have the right to be
provided by the Lender from whom it has obtained its participation with all
information relating to the Restricted Parties which is provided to any Lender.
Without limiting the foregoing, no participant shall have the benefit of Section
14.14 except to the extent that the Lender from whom it has obtained its
participation is itself entitled to compensation under that Section.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 HEADINGS AND TABLE OF CONTENTS
The headings of the Articles and Sections and the Table of Contents
are inserted for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
14.2 ACCOUNTING TERMS
Each accounting term used in this Agreement, unless otherwise
defined herein, has the meaning assigned to it under GAAP.
14.3 CAPITALIZED TERMS
All capitalized terms used in any of the Credit Documents (other
than this Agreement) which are defined in this Agreement shall have the meaning
defined herein unless otherwise defined in the other document.
14.4 SEVERABILITY
Any provision of this Agreement which is or becomes prohibited or
unenforceable in any relevant jurisdiction shall not invalidate or impair the
remaining provisions hereof which shall be deemed severable from such prohibited
or unenforceable provision and any such prohibition or unenforceability in any
such jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. Should this Agreement fail to provide for any relevant
matter, the validity, legality or enforceability of this Agreement shall not
thereby be affected.
14.5 NUMBER AND GENDER
Unless the context otherwise requires, words importing the singular
number shall include the plural and vice versa, words importing any gender
include all genders and references to agreements and other contractual
instruments shall be deemed to include all present or future amendments,
supplements, restatements or replacements thereof or thereto.
14.6 AMENDMENT, SUPPLEMENT OR WAIVER
No amendment, supplement or waiver of any provision of the Credit
Documents, nor any consent to any departure by a Restricted Party therefrom,
shall in any event be effective unless it is in writing, makes express reference
to the provision affected thereby and is signed by the Agent for and on behalf
of the Lenders or the Majority Lenders, as the case
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may be, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. In addition, any
amendment or supplement shall require the written consent of the other parties
to the Credit Document in question. No waiver or act or omission of the Agent,
the Lenders, or any of them, shall extend to or be taken in any manner
whatsoever to affect any subsequent Event of Default or breach by a Restricted
Party of any provision of the Credit Documents or the rights resulting
therefrom.
14.7 GOVERNING LAW
Each of the Credit Documents, except for those which expressly
provide otherwise, shall be conclusively deemed to be a contract made under, and
shall for all purposes be exclusively governed by and construed in accordance
with, the laws of the Province of British Columbia and the laws of Canada
applicable in British Columbia. Each party to this Agreement hereby irrevocably
and unconditionally attorns to the non-exclusive jurisdiction of the courts of
British Columbia and all courts competent to hear appeals therefrom.
14.8 THIS AGREEMENT TO GOVERN
In the event of any conflict between the terms of this Agreement and
the terms of any other Credit Document (other than the Fee Agreement and any
Intercreditor Agreement, which shall prevail as against this Agreement), the
provisions of this Agreement shall govern to the extent necessary to remove the
conflict.
14.9 PERMITTED ENCUMBRANCES
The designation of an Encumbrance as a Permitted Encumbrance is not,
and shall not be deemed to be, an acknowledgment by the Lenders that the
Encumbrance shall have priority over the Security.
14.10 CURRENCY
All payments made hereunder shall be made in the currency in respect
of which the obligation requiring such payment arose. Unless the context
otherwise requires, all amounts expressed in this Agreement in terms of money
shall refer to Canadian Dollars.
Except as otherwise expressly provided in this Agreement, wherever
this Agreement contemplates or requires the calculation of the equivalent in one
currency of an amount expressed in another currency, the calculation shall be
made on the basis of the Exchange Rate at the effective date of the calculation.
14.11 LIABILITY OF LENDERS
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The liability of the Lenders in respect of all matters relating to
this Agreement and the other Credit Documents is several and not joint or joint
and several. Without limiting that statement, the obligations of the Lenders to
make Advances is limited to their respective Proportionate Shares of any Advance
that is requested, and, in the aggregate, to their respective Proportionate
Shares of the total amounts of the Credits.
14.12 EXPENSES AND INDEMNITY
All statements, reports, certificates, opinions, appraisals and
other documents or information required to be furnished to the Lenders, the
Agent, or any of them, by the Restricted Parties under this Agreement shall be
supplied without cost to the Lenders, the Agent, or any of them. The Borrower
shall pay on demand all reasonable third party costs and expenses of the
Lenders, or any of them (including, without limitation, the reasonable fees and
expenses of counsel for the Lenders and the Agent collectively, but not
separately for individual Lenders and the Agent, on a solicitor and own client
basis), incurred in connection with (i) the preparation, execution, delivery,
administration, periodic review and enforcement of the Credit Documents; (ii)
obtaining advice as to their rights and responsibilities in connection with the
Credits and the Credit Documents; (iii) reviewing, inspecting and appraising the
collateral that is the subject of the Security at reasonable intervals; (iv) the
syndication of the Credits; (v) due diligence; and (vi) other matters relating
to the Credits. Such costs and expenses shall be payable whether or not an
Advance is made under this Agreement.
The Borrower shall indemnify the Lenders, the Agent, the Arrangers,
the Syndication Agents, and each of them, and their respective officers,
directors, trustees, employees and agents against any liability, obligation,
loss or expense which any of them may sustain or incur as a consequence of (i)
any representation or warranty made herein by a Restricted Party which was
incorrect at the time it was made or deemed to have been made, (ii) a default by
the Borrower in the payment of any sum due from it under or in connection with
the Credit Documents (irrespective of whether an Advance is deemed to be made to
pay the amount that has not been paid), including, but not limited to, all sums
(whether in respect of principal, interest or any other amount) paid or payable
to lenders of funds borrowed by the Lenders, the Agent, or any of them, in order
to fund the amount of any such unpaid amount to the extent the Lenders, the
Agent, or any of them, are not reimbursed pursuant to any other provisions of
this Agreement, (iii) the failure of the Borrower to complete any Advance or
make any payment after notice therefor has been given under this Agreement, (iv)
the failure of a purchaser of Bankers' Acceptances (other than one of the
Lenders) to pay for and take delivery of them in any arrangement for sale made
by the Borrower and communicated to the Agent, (v) any other default by a
Restricted Party hereunder, and (vi) generally, the Lenders and the Agent having
entered into this Agreement and the other Credit Documents and made Advances to
the Borrower. A certificate of a Lender or the Agent as to the amount of any
such loss or expense shall be conclusive evidence as to the amount
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thereof, in the absence of manifest error provided that the Lender determines
the amount owing to it in good faith using any reasonable method and provides a
detailed description of its calculation of the amount owing to it.
In no event shall any party to this Agreement be liable for
consequential damages suffered by any other party.
The agreements in this Section shall survive the termination of this
Agreement and repayment of the Obligations.
14.13 ENVIRONMENTAL INDEMNITY
The Borrower shall protect, indemnify and hold the Agent and the
Lenders and all directors, officers, employees and agents of the Agent or the
Lenders harmless from and against any and all actual or potential claims,
liabilities, damages, losses, fines, penalties, sanctions, judgments, awards,
costs and expenses whatsoever (including, without limitation, costs and expenses
of investigating, denying or defending any of the foregoing and costs and
expenses for preparing any necessary environmental assessment report or other
such reports) which arise out of or relate in any way to:
(a) the presence, use, handling, production, transportation,
storage, release, deposit, discharge or disposal of any
Hazardous Materials in, on or about any Property owned,
operated or occupied by the Restricted Parties and their
Subsidiaries, whether by the Restricted Parties or any other
person;
(b) any remedial action taken by the Agent or any Lender in
connection with any matter referred to in paragraph (a),
including without limitation any repair, clean-up, remediation
or detoxification of any of such Property and the preparation
of any closure or other required plans; and
(c) any breach by any Restricted Party of any Environmental Law.
Notwithstanding anything to the contrary contained in this
Agreement, (i) the indemnity provisions set forth above shall not apply with
respect to Hazardous Materials, contaminants, wastes or other substances which
the Borrower establishes were first placed on, in, under or about the property
in question after the Agent or a Lender or other indemnified party took actual
and exclusive possession of the property (either through foreclosure or
otherwise), and (ii) the indemnity provisions set forth above are not intended
to indemnify any indemnified party for its own gross negligence or wilful
misconduct.
If any Hazardous Materials are caused to be removed by any
Restricted Party, the Agent, a Lender or any other indemnified party, then such
Hazardous Materials will be and
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remain the property of the Restricted Party to which they belonged before
removal, and such Restricted Party will assume any and all liability for such
removed Hazardous Materials. The Borrower understands that its liability to the
indemnified parties under this Section will survive the termination of this
Agreement and repayment of the Obligations.
14.14 MANNER OF PAYMENT AND TAXES
All payments to be made by or on behalf of the Restricted Parties
(or in the case of upfront fees and indemnity fees, by the Agent or any Lender
to another Lender or to an assignee of an interest in the Credits) in connection
with the Credit Documents are to be made without set-off, compensation or
counterclaim, free and clear of and without deduction for or on account of any
Tax, including but not limited to withholding taxes, other than Excluded Taxes,
except if such deduction is required by law or the administration thereof. If
any Tax, other than Excluded Taxes, is deducted or withheld from any payments
under the Credit Documents (including the remittance provided for in this
Section), the Restricted Party making payment shall promptly remit to the Agent
for the Lenders' benefit in the currency in which such payment was made, the
equivalent of the amount of Tax so deducted or withheld together with the
relevant receipt issued by the taxing or other receiving authority. Subject to
Section 8.28, if the Borrower is prevented by operation of law or otherwise from
paying, causing to be paid or remitting such Tax, the interest or other amount
payable under the Credit Documents will be increased to such rates as are
necessary to yield and remit to the Lenders the principal sum advanced or made
available together with interest at the rates specified in the Credit Documents
after provision for payment of such Tax.
If any Lender or the Agent becomes liable for any Tax in the
jurisdiction in which the person making a payment under the Credit Documents is
located as a result of a payment being made without the required Tax in that
jurisdiction having been deducted or withheld, the payer shall indemnify the
Lender or the Agent, as the case may be, for such Tax and any interest and
penalties thereon, and the indemnity payment shall be increased as necessary so
that after the imposition of any Tax in that jurisdiction on the indemnity
payment (including Tax in respect of any such increase in the indemnity
payment), the Lender or the Agent shall receive the full amount of Taxes,
interest and penalties for which it is liable in that jurisdiction as a result
of the failure to deduct or withhold Tax.
14.15 INCREASED COSTS ETC.
If the introduction of or any change in or in the interpretation of,
or any change in the application to any Restricted Party or any Lender of, any
law or any regulation or guideline from any central bank or other governmental
authority that is binding on any Restricted Party or any Lender (whether or not
having the force of law), including but not limited to any reserve or special
deposit requirement or any Tax (other than Excluded Taxes) or any capital
requirement, has due to the Lenders' compliance therewith the effect, directly
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or indirectly, of (i) increasing the cost to the Lenders, or any of them, of
performing their respective obligations hereunder; (ii) reducing any amount
received or receivable by the Lenders, or any of them, hereunder or its
effective return hereunder or on its capital; or (iii) causing the Lenders, or
any of them, to make any payment or to forego any return based on any amount
received or receivable by the Lenders, or any of them, hereunder, then upon
demand from time to time the affected Restricted Party shall pay such amount as
shall compensate the Lenders for any such cost, reduction, payment or foregone
return that is not fully offset by an increase in the applicable interest rate
or rates or fees hereunder. Any certificate of a Lender in respect of the
foregoing will be conclusive evidence of the foregoing, except for manifest
error, provided that the Lender determines the amounts owing to it in good faith
using any reasonable averaging and attribution methods and provides a detailed
description of its calculation of the amounts owing to it.
14.16 INTEREST ON MISCELLANEOUS AMOUNTS
If a Restricted Party fails to pay any amount payable hereunder
(other than principal, interest thereon or interest upon interest which is
payable as otherwise provided in this Agreement) on the due date, that
Restricted Party shall, on demand, pay interest on such overdue amount to the
Agent from and including such due date up to but excluding the date of actual
payment, both before and after demand, default or judgment, at a rate of
interest per annum equal to the sum of the Prime Rate plus 3.0% per annum,
compounded monthly.
If the Borrower deposits cash as Collateral pursuant to a
requirement under this Agreement, the Lender or Lenders holding the cash shall
pay the Borrower interest on the cash while it continues to be held as
Collateral at the rate offered by the relevant Lenders from time to time for
deposits in the relevant currency of comparable size and term.
14.17 CURRENCY INDEMNITY
In the event of a judgment or order being rendered by any court or
tribunal for the payment of any amounts owing to the Lenders or any of them
under this Agreement or for the payment of damages in respect of any breach of
this Agreement or under or in respect of a judgment or order of another court or
tribunal for the payment of such amounts or damages, such judgment or order
being expressed in a currency (the "JUDGMENT CURRENCY") other than the currency
payable hereunder or thereunder ("the AGREED CURRENCY"), the party against whom
the judgment or order is made shall indemnify and hold the Lenders harmless
against any deficiency in terms of the Agreed Currency in the amounts received
by the Lenders arising or resulting from any variation as between (i) the
exchange rate at which the Agreed Currency is converted into the Judgment
Currency for the purposes of such judgment or order, and (ii) the exchange rate
at which each Lender is able to purchase the Agreed Currency with the amount of
the Judgment Currency actually received by the Lender on the date of such
receipt. The indemnity in this Section shall constitute a separate and
- 116 -
independent obligation from the other obligations of the Restricted Parties
hereunder, shall apply irrespective of any indulgence granted by the Lenders,
and shall be secured by the Security.
14.18 ADDRESS FOR NOTICE
Notice to be given under the Credit Documents shall, except as
otherwise specifically provided, be in writing addressed to the party for whom
it is intended and, unless the law or a specific provision in another Credit
Document deems a particular notice to be received earlier, a notice shall not be
deemed received until actual receipt thereof by the other party. The addresses
of the parties hereto for the purposes hereof shall be the addresses specified
beside their respective signatures to this Agreement or on any Assignment
Agreement, or such other mailing or telecopier addresses as each party from time
to time may notify the other as aforesaid. Notice to the other Restricted
Parties shall be sent in care of NSCL.
14.19 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
14.20 FURTHER ASSURANCES
The Restricted Parties shall, at the request of the Agent acting on
the instructions of the Majority Lenders, do all such further acts and execute
and deliver all such further documents as may, in the reasonable opinion of the
Majority Lenders, be necessary or desirable in order to fully perform and carry
out the purpose and intent of the Credit Documents.
14.21 TERM OF AGREEMENT
Except as otherwise provided herein, this Agreement shall remain in
full force and effect until the payment and performance in full of all of the
Obligations.
14.22 PAYMENTS ON BUSINESS DAY
Whenever any payment or performance under the Credit Documents would
otherwise be due on a day other than a Business Day, such payment shall be made
on the following Business Day, unless the following Business Day is in a
different calendar month, in which case the payment shall be made on the
preceding Business Day.
14.23 COUNTERPARTS AND FACSIMILE
- 117 -
This Agreement may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed to be an original, and such
counterparts together shall constitute one and the same agreement. For the
purposes of this Section, the delivery of a facsimile copy of an executed
counterpart of this Agreement shall be deemed to be valid execution and delivery
of this Agreement, but the party delivering a facsimile copy shall deliver an
original copy of this Agreement as soon as possible after delivering the
facsimile copy.
14.24 WAIVER OF JURY TRIAL, CONSEQUENTIAL DAMAGES ETC.
Each party hereto hereby waives, to the fullest extent permitted by
applicable law, any right it may have to a trial by jury in any legal proceeding
directly or indirectly arising out of or relating to this the Credit Documents,
the transactions contemplated thereby or any course of conduct, course of
dealing, statements (whether oral or written) or actions of any party (whether
based on contract, tort or any other theory).
No party shall assert, and each party hereby waives (to the fullest
extent permitted by applicable law), any claim against any other party on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, the Credit Documents, the transactions contemplated thereby or
any course of conduct, course of dealing, statements (whether oral or written)
or actions of any party (whether based on contract, tort or any other theory).
The Restricted Parties acknowledge and agree that none of the Agent
or the Lenders shall have any liability to them in relation to any due diligence
investigations conducted by any of them in connection with the transactions
contemplated hereby or be under any obligation whatsoever to disclose to them
any information received or facts disclosed by any such investigations. The
Restricted Parties further acknowledge and agree that they are not relying, will
not rely, and will not be deemed, in any respect whatsoever, to have relied upon
the facts received by and information disclosed to any of the Agent or the
Lenders under or in connection with such due diligence investigations.
Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing
provisions and (b) acknowledges that it and the other parties hereto have been
induced to enter into this Agreement by, among other things, the waivers,
acknowledgments and certifications in this Section.
- 118 -
14.25 ENTIRE AGREEMENT
Except as expressly provided in the commitment letter, summary of
terms and conditions and fee letter dated 25 July 2001 issued by TD, ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital Canada Inc. and RBC as underwriters to NSCL, this Agreement, the
Fee Agreement and the Intercreditor Agreements constitute the entire agreement
between the parties hereto concerning the matters addressed in this Agreement,
and cancel and supersede any prior agreements, undertakings, declarations or
representations, written or verbal, in respect thereof. Without limiting the
foregoing, the commitment letter, summary of terms and conditions and fee letter
referred to above are cancelled and superseded except as expressly provided
therein.
14.26 DATE OF AGREEMENT
This Agreement may be referred to as being dated 14 August 2001 or
as of 14 August 2001, notwithstanding the actual date of execution.
[NOTE: THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
- 119 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August 2001.
ADDRESS FOR NOTICE THE TORONTO-DOMINION
BANK, as Administration Agent
The Toronto-Dominion Bank
Corporate and Investment Banking By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West, 38th Floor ------------------------
Toronto-Dominion Bank Tower Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Toronto, Ontario Title: Vice ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇: Vice President, Loan By:
Syndications - Agency ------------------------
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 120 -
ADDRESS FOR NOTICE THE TORONTO-DOMINION
BANK, as Lender
The Toronto-Dominion Bank
TD Tower - Suite 660 By: /s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ -------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇ ▇▇▇▇▇
V7Y 1A2 Title: Vice President
Attention: Vice President, Corporate &
Investment Banking By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ ------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 121 -
ADDRESS FOR NOTICE THE TORONTO-DOMINION
BANK, Houston Agency
The Toronto-Dominion Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
77010 -----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Mgr., Syndications &
Attention: ▇▇▇▇ ▇▇▇▇▇ Credit Admin.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
By:
-----------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 122 -
ADDRESS FOR NOTICE ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Global Banking By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, -------------------------------
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. Managing Director, Global
V6C 3B1 Banking
Attention: Managing Director By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Associate
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 123 -
ADDRESS FOR NOTICE ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
CANADA INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Canada Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Toronto, Ontario -------------------------------
▇▇▇ ▇▇▇ Name: ▇▇▇▇▇▇ Maleckyi
Title:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, c/o ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 124 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE TORONTO DOMINION (TEXAS), INC.
Houston Agency
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Houston, TX -----------------------------
USA 77010 Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 125 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE TORONTO DOMINION (TEXAS), INC.
as U.S. Administrative Agent
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Houston, TX -----------------------------
USA 77010 Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 126 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 14
August, 2001.
ADDRESS FOR NOTICE THE BANK OF NOVA SCOTIA
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇
18th Floor ------------------------------
Vancouver, BC Name: ▇. ▇. ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ Title: Director
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Associate Director
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 127 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 14
August, 2001.
ADDRESS FOR NOTICE BANK OF MONTREAL
Bank of Montreal
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ---------------------------
▇▇▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
H3A 3M8 Title: Director
Asset Portfolio Management
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
By:
---------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 128 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE NATIONAL BANK OF CANADA
National Bank of Canada
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ----------------------------
▇▇▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
H3B 4S9 Title: Financial Analyst
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ Reseau Euevremont
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ ----------------------------
Name: Reseau Euevremont
Title: Assistant Vice President
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 129 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 13
August, 2001.
ADDRESS FOR NOTICE HSBC BANK CANADA
HSBC Bank Canada
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ --------------------------------
▇▇▇▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ Title: AVP, Commercial Banking
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ --------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇
Title: VP, Commercial Banking
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 130 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE CAISSE DE DEPOT ET PLACEMENT DU
QUEBEC
Caisse De Depot Et Placement Du Quebec
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ -----------------------------
▇▇▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ Title: Manager
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Manager
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 131 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 13
August, 2001.
ADDRESS FOR NOTICE LAURENTIAN BANK OF CANADA
Laurentian Bank of Canada By: /s/ W. A. ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ------------------------------
▇▇▇▇▇▇▇, ▇▇ Name: W. A. ▇▇▇▇▇▇▇▇▇
M5H 3P5 Title: Vice-President
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ ------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Senior Manager
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 132 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 13
August, 2001.
ADDRESS FOR NOTICE COMERICA BANK CANADA
Comerica Bank Canada
South Tower, Royal Bank Plaza By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
Suite 2210 ---------------------------
Toronto, ON Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
M5J 2J2 Title: Assistant Vice President
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 133 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 14
August, 2001.
ADDRESS FOR NOTICE CANADIAN WESTERN BANK
Canadian Western Bank
Park Place Branch By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ -------------------------------
Suite 100 Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Vancouver, BC Title: Assistant Vice President
V6C 2X8
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: 604-688-7117 -------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 134 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE THE TRAVELERS INSURANCE COMPANY
The Travelers Insurance Company
One Tower Square By: /s/ ▇▇▇▇▇ ▇. Cantreli
Securities Department, 9-PB --------------------------
Hartford, CT Name: ▇▇▇▇▇ ▇. Cantreli
USA 06183-2030 Title: Investment Officer
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 135 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE TRAVELERS CORPORATE LOAN
FUND, INC.
By Travelers Asset Management
Travelers Corporate Loan Fund, Inc. International Company LLC
One Tower Square
Securities Department, 9-PB
▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. Cantreli
------------------------------
Name: ▇▇▇▇▇ ▇. Cantreli
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Investment Officer
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 136 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORP.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corp.
4 World Financial Center, By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
7th Floor ------------------------------
New York, NY Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
USA 10080 Title: Vice President
Attention: ▇▇▇▇ ▇▇▇ By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ ------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 137 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE ▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING
RATE FUND
▇▇▇▇▇▇▇▇▇▇▇ Senior Floating Rate Fund
c/o OppenheimerFunds, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Englewood, CO -----------------------------
USA 80112-3924 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
AVP Department Manager
Attention: ▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇
Manager Banking Operations
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 138 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE KZH SHOSHONE LLC
KZH Shoshone LLC
c/o The Chase Manhattan Bank By: /s/ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ -----------------------------
▇▇▇ ▇▇▇▇, ▇▇ Name: ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ Title: Authorized Agent
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 139 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 14
August, 2001.
ADDRESS FOR NOTICE KZH ING-1 LLC
KZH ING-1 LLC
c/o The Chase Manhattan Bank By: /s/ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ -----------------------------
▇▇▇ ▇▇▇▇, ▇▇ Name: ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ Title: Authorized Agent
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 140 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE ▇▇▇▇▇▇▇ FLOATING RATE FUND
▇▇▇▇▇▇▇ Floating Rate Fund
c/o Zurich ▇▇▇▇▇▇▇ Investments, Inc. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Two International Place -----------------------------
Boston, MA Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
USA 02110-4103 Title: Managing Director
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇ ▇▇▇▇▇▇ By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 141 -
IN WITNESS OF WHICH, the parties have executed this Agreement on 14
August, 2001.
ADDRESS FOR NOTICE KZH RIVERSIDE LLC
KZH Riverside LLC
c/o The Chase Manhattan Bank By: /s/ ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ -----------------------------
▇▇▇ ▇▇▇▇, ▇▇ Name: ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ Title: Authorized Agent
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 142 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE PRINCIPAL LIFE INSURANCE COMPANY
Principal Life Insurance Company By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ------------------------------
Des Moines, IO Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
USA 50392 Title: Counsel
Attention: ▇▇▇ ▇. ▇▇▇▇▇, Esq. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ ------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Counsel
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 143 -
IN WITNESS OF WHICH, the parties have executed this Agreement on ___
August, 2001.
ADDRESS FOR NOTICE CARLYLE HIGH YIELD
PARTNERS II, LTD.
Carlyle High Yield Partners II, Ltd.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
USA 10022 ------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Attention: ▇▇▇▇▇ ▇▇▇▇ By:
Facsimile: 212-381-4950 ------------------------------
Name:
Title:
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 144 -
ADDRESS FOR NOTICE NORSKE ▇▇▇▇ CANADA LIMITED
Norske ▇▇▇▇ Canada Limited
9th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Vancouver, British Columbia ---------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Controller Treasurer
Attention: Chief Financial Officer By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ ---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President Finance, Chief
with a copy to: Financial Officer and Secretary
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Barristers and Solicitors NORSKE ▇▇▇▇ CANADA
Suite ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ FINANCE LIMITED
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Secretary
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
NORSKE ▇▇▇▇ CANADA PULP
OPERATIONS LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President Finance
ELK FALLS PULP AND PAPER
LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
- 145 -
NORSKE ▇▇▇▇ CANADA PULP
SALES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President Finance
NORSKE ▇▇▇▇ CANADA SALES
INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President Finance
NSCL HOLDINGS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President Finance
NORSKE ▇▇▇▇ PAPER COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President Finance
NORSKE ▇▇▇▇ CANADA (JAPAN) LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director
NORSKE ▇▇▇▇ PULP SALES
(JAPAN) LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Director
[SIGNATURE PAGE FOR CREDIT AGREEMENT DATED AS OF 14 AUGUST 2001 RELATING TO
NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
SCHEDULE A
NOTICE OF ADVANCE OR PAYMENT
[SEE REFERENCE IN SECTION 8.6]
TO: THE TORONTO-DOMINION BANK
Corporate and Investment Banking
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ West, 38th Floor
Toronto-Dominion Bank Tower
Toronto, Ontario
M5K 1A2
Attention: Vice President, Loan Syndications - Agency
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
We refer to the credit agreement dated as of 14 August 2001 between
Norske ▇▇▇▇ Canada Limited and others as Restricted Parties, The
Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents named therein, as amended, supplemented, restated or replaced
from time to time (the "Credit Agreement"). All capitalized terms used in this
certificate and defined in the Credit Agreement have the meanings defined in the
Credit Agreement.
REQUEST FOR ADVANCE
Notice is hereby given pursuant to Section 8.6 of the Credit Agreement
that the undersigned hereby irrevocably requests as follows:
(A) that an Advance be made under the following Credit [CHECK ONE]:
Operating Credit 1 ( )
Term Credit A ( )
Term Credit B ( )
(B) the requested Advance represents the following [CHECK ONE OR MORE]:
initial Advance under the Credit ( )
increase in Advances under the Credit ( )
rollover of existing Advances under the Credit ( )
conversion of existing Advances to another type of Advance ( )
(C) the Drawdown Date shall be
(D) the Advance shall be in the form of [CHECK ONE OR MORE AND COMPLETE
DETAILS]:
- 2 -
Prime Rate Advance ( )
Amount $
---------------
Bankers' Acceptances ( )
Face Amount:
---------------
Term:
Base Rate Advance ( )
Amount US$
--------------
US Prime Rate Advance ( )
Amount US$
-------------
LIBOR Advance ( )
Currency: -------------
Amount: -------------
End of LIBOR Period: -----------
L/C ( )
Nominal amount: ------------
Expiry date: ------------
[NOTE: ATTACH PROPOSED FORM OR DETAILS]
(E) the proceeds of the Advance shall be deposited in [SPECIFY
DESIGNATED ACCOUNT]
The undersigned hereby confirms as follows:
(a) the representations and warranties made in Section 9.1 of the
Credit Agreement, other than those expressly stated to be made
as of a specific date, are true on and as of the date hereof
with the same effect as if such representations and warranties
had been made on and as of the date hereof, subject to
modifications made by NSCL to the Lenders in writing and
accepted by the Majority Lenders;
(b) no Pending Event of Default or Event of Default has occurred
and is continuing on the date hereof or will result from the
Advance(s) requested herein [EXCEPT O];
(c) after reasonable inquiry, there is no reason to believe that
NSCL will not be in compliance with all covenants contained in
Section 10.1 of the Credit Agreement at the end of its current
fiscal quarter and was not in compliance with those covenants
at the end of its immediately preceding fiscal quarter if it
has not yet
- 3 -
delivered its Compliance Certificate for that quarter
[EXCEPT O];
(d) the undersigned will immediately notify you if it becomes
aware of the occurrence of any event which would mean that the
statements in the immediately preceding paragraphs (a), (b)
and (c) would not be true if made on the Drawdown Date;
(e) all other conditions precedent set out in Section 7.3 [AND
SECTION 7.1] of the Credit Agreement have been fulfilled.
Notice of Payment
Pursuant to Section 8.6 of the Credit Agreement, the undersigned hereby
irrevocably notifies you of the following:
(a) that a payment will be made under the following Credit [CHECK ONE]:
Operating Credit 1 ( )
Term Credit A ( )
Term Credit B ( )
(b) the payment represents the following [CHECK ONE OR MORE]:
reduction in Advances under the Credit ( )
payment of existing Advances which will be rolled over
as the same type of Advance under the Credit ( )
payment of existing Advances which will be converted to
another type of Advance under the Credit ( )
(c) the payment date shall be
------------------
(d) the Advance to be paid shall be in the form of [CHECK ONE OR
MORE AND COMPLETE DETAILS]:
Prime Rate Advance ( )
Amount $
------------
Bankers' Acceptances ( )
Face Amount: ------------
Maturity Date: ------------
- 4 -
Base Rate Advance ( )
Amount US$
-----------
US Prime Rate Advance ( )
Amount US$
-----------
LIBOR Advance ( )
Currency: -----------
Amount:
Start of current LIBOR Period: ---------
DATED
------------------------------
NORSKE ▇▇▇▇ CANADA FINANCE
LIMITED
By:
-------------------------
Name:
Title:
SCHEDULE B
AGREEMENT OF NEW RESTRICTED SUBSIDIARY
SUPPLEMENT TO CREDIT AGREEMENT
[SEE REFERENCE IN SECTION 6.1]
THIS AGREEMENT supplements the credit agreement dated as of 14 August
2001 between Norske ▇▇▇▇ Canada Limited and others as Restricted Parties, The
Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents named therein, as amended, supplemented, restated or replaced
from time to time (the "Credit Agreement").
RECITALS
A. Capitalized terms used and not defined in this Agreement have the meanings
defined in the Credit Agreement.
B. The Credit Agreement contemplates that Pacifica, each of its material
Subsidiaries and further Subsidiaries of NSCL shall become Restricted Parties in
certain circumstances.
C. o (the "New Subsidiary") is required by the Credit Agreement to become a
Restricted Party.
D. The New Subsidiary has delivered the documents listed on Appendix A to this
Agreement, which form part of the Security, an opinion of its counsel and other
resolutions and ancillary documents required by the Agent, and a pledge of all
shares of the New Subsidiary owned by the other Restricted Parties has also been
delivered as part of the Security.
THEREFORE, for value received, and intending to be legally bound by
this Agreement, the parties agree as follows:
1. The New Subsidiary hereby acknowledges and agrees to the terms of the Credit
Agreement and agrees to be bound by all obligations of a Restricted Party under
the Credit Agreement as if it had been an original signatory thereto.
2. The Agent, on behalf of the Lenders, acknowledges that the New Subsidiary
shall be a Restricted Party as of the date of this Agreement.
- 2 -
IN WITNESS OF WHICH, the undersigned have executed this Agreement as of
o.
THE TORONTO-DOMINION BANK as Agent
By:
-------------------------------
Name:
Title:
[NEW SUBSIDIARY]
By:
-------------------------------
Name:
Title:
[NOTE: APPENDIX A TO BE ATTACHED TO LIST SECURITY]
SCHEDULE C
COMPLIANCE CERTIFICATE
[SEE REFERENCE IN SECTION 1.1.25]
TO: THE LENDERS (as defined in the Credit Agreement referred to below)
AND TO: THE TORONTO-DOMINION BANK, as Agent
--------------------------------------------------------------------------------
We refer to Section 10.3.1(c) of the credit agreement dated as of 14
August 2001 between Norske ▇▇▇▇ Canada Limited and others as Restricted Parties,
The Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents named therein, as amended, supplemented, restated or replaced
from time to time (the "Credit Agreement"). All capitalized terms used in this
certificate and defined in the Credit Agreement have the meanings defined in the
Credit Agreement.
1. The undersigned hereby certifies that:
(a) the representations and warranties made in Section 9.1 of the
Credit Agreement, other than those expressly stated to be made
as of a specific date, are true on and as of the date hereof
with the same effect as if such representations and warranties
had been made on and as of the date hereof, subject to
modifications made by the undersigned to the Lenders in
writing and accepted by the Majority Lenders;
(b) no Pending Event of Default or Event of Default has occurred
and is continuing on the date hereof [OR AS THE CASE MAY BE].
2. The undersigned hereby certifies that, as of the end of its
most-recently completed fiscal quarter, which ended on ________,
(a) the Interest Coverage Ratio is _______: 1.
(b) the Funded Debt Ratio is ________ : 1.
(c) the Secured Debt Ratio is ________ : 1.
(d) the value of its Consolidated Net Tangible Assets is $_______.
(e) [OMIT IF ACQUISITION NOT COMPLETED] its "Consolidated Fixed
Charge Coverage Ratio" as defined under the Pacifica Indenture
is _______ :1.
(f) [OMIT IF ACQUISITION NOT COMPLETED] the Threshold Amount
is $ _________ .
- 2 -
(g) [INCLUDE FOR YEAR END ONLY] its shareholders equity is $_________.
3. Appendix A attached sets out the calculations of the amounts referred
to in paragraph 2 above.
4. Appendix B attached contains a list of all sales or other dispositions
of any Property of Restricted Parties (including Capital Stock of any
other person) during the term of this Agreement, other than
dispositions to another Restricted Party and sales of inventory in the
ordinary course of its business, and a list of all material Property of
a Restricted Party which has been expropriated, condemned, destroyed,
damaged or otherwise lost, with a description of the use of the
proceeds of disposition, insurance or other compensation.
5. Appendix C attached contains details of all Other Secured Obligations
as of the end of the undersigned's most-recently completed fiscal
quarter and the Market Value thereof.
6. Appendix D attached is an up to date version of Schedule F to the
Credit Agreement. [OR There has been no change to the information
contained in the version of Schedule F to the Credit Agreement dated o]
7. The undersigned hereby certifies that the current Reference Debt
Ratings established by ▇▇▇▇▇'▇ and S&P are o and o, respectively.
Accordingly, the Applicable Fee Rate is o% per annum and the Applicable
Margins are as follows:
For the Operating Credit and Term Credit A:
Margin for Prime Rate Advances/ Base Rate Advances - o%
Margin for LIBO Rate Advances - o%
For Term Credit B:
Margin for US Prime Rate Advances - o%
Margin for LIBO Rate Advances - o%
8. [INCLUDE WITH REPORT FOR QUARTER IN WHICH 30 JUNE FALLS] The
undersigned hereby certifies that the consolidated net book value of
its inventory as at 30 June [YEAR] is $o and the net book value of all
inventory located in any jurisdiction where the Security has not been
registered over inventory in accordance with local requirements is $o
as at that date.
9. The undersigned hereby certifies that there is no jurisdiction where
the Security has not been registered over inventory in accordance with
local requirements in which the amount of
- 3 -
inventory for all Restricted Parties is greater than 15,000 tonnes.
10. The undersigned hereby certifies that the current consolidated net book
value of its fixed assets is $o and the net book value of all Property
other than inventory located in any jurisdiction where the Security
over such Property has not been registered in accordance with local
requirements is $o.
11. Appendix E attached is an up to date version of Schedule G to the
Credit Agreement. [OR There has been no change to the information
contained in the version of Schedule G to the Credit Agreement dated o]
DATED
NORSKE ▇▇▇▇ CANADA LIMITED
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
SCHEDULE D
ASSIGNMENT AGREEMENT
[SEE REFERENCE IN SECTION 1.1.9]
The undersigned refer to the credit agreement dated as of 14 August
2001 between Norske ▇▇▇▇ Canada Limited and others as Restricted Parties, The
Toronto-Dominion Bank as Administration Agent and the Lenders, Arrangers and
Syndication Agents named therein as amended, supplemented, restated or replaced
from time to time (the "Credit Agreement"). All capitalized terms used in this
Assignment Agreement and defined in the Credit Agreement have the meanings
defined in the Credit Agreement.
For value received, the "Assignor" and the "Assignee" named below
hereby agree as follows:
1. The Assignor hereby sells and assigns, without recourse, to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, the Proportionate
Share specified on Appendix 1 in and to the Assignor's rights and obligations
under the Credit Agreement, the Security and all other Credit Documents.
2. The Assignor (a) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder, that such interest is free
and clear of any lien or security interest and that it is entitled to enter into
this Assignment Agreement; (b) makes no representation or warranty, other than
as provided in this Assignment Agreement and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or any
other Credit Document; and (c) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Restricted
Parties or any other guarantor or the performance or observance by the
Restricted Parties or any other guarantor of any of the obligations under the
Credit Agreement or any other Credit Document.
3. The Assignee, for the benefit of the Restricted Parties, the Agent and all
Lenders from time to time, including the Assignor, (a) acknowledges receipt of
any upfront fee payable by the Assignor, (b) confirms that it has received a
copy of the Credit Agreement, together with such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement; (c) agrees that it will, independently and
without reliance upon the Agent, the Assignor or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (d) appoints and authorizes the Agent to take such action
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (e) ratifies and
adopts the powers of attorney and related powers given to the Agent under the
Credit Agreement; (f)
- 2 -
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender, (g) agrees to be bound by the terms of all
Intercreditor Agreements, and (h) specifies as its address for notice and
payments its office at the address set forth on Appendix 1 hereto.
4. Following the execution of this Assignment Agreement, it shall immediately be
delivered to the Agent, together with the processing and recording fee specified
in Section 13.2.1 of the Credit Agreement if applicable, for approval and
recording by the Agent, and NSCL, if applicable. The Assignee's agreement to
become a Lender, as constituted by this Assignment Agreement, is irrevocable,
unless the Assignee is not approved by the Agent, and NSCL if applicable. The
Assignee shall become a Lender, and shall be bound by the obligations and
entitled to the benefits in the Credit Agreement, immediately upon this
Assignment Agreement being approved and recorded by the Agent and NSCL, if
applicable (the "Effective Date"). On the Effective Date, the Assignee (a) shall
pay the Assignor an amount equal to the Assignee's Proportionate Share of Prime
Rate Advances, Base Rate Advances and US Prime Rate Advances made by the
Assignor as of the Effective Date and (b) shall become entitled to receive
standby fees in accordance with the Credit Agreement in respect of its
Proportionate Share of the aggregate amount of the Credit that has not been
advanced by the Lenders. The Assignee shall make further Advances to the
Borrower beginning on the first Drawdown Date that is at least three Business
Days following the Effective Date, as LIBOR Advances and Advances by way of
Bankers' Acceptances made by the Assignor mature, until the Assignee has made
Advances in an amount equal to its Proportionate Share of the aggregate Advances
made by all Lenders under the Credit Agreement.
5. If Advances made by the Assignee to the Borrower are for any reason less than
the Assignee's Proportionate Share of the aggregate Advances made by all Lenders
under the Credit Agreement, the Assignee shall, on demand, indemnify the
Assignor in respect of the principal amount of the corresponding Advances made
by the Assignor in excess of the Assignor's Proportionate Share. The Advances by
the Assignor in respect of which the Assignee is bound to indemnify the Assignor
are set out on Appendix 2 to this Assignment Agreement. The Assignor shall pay
the Assignee indemnity fees during the period in which the Assignee is obliged
to indemnify the Assignor. The fee shall be in the amount specified on Appendix
2 and shall be payable on the Effective Date in respect of Advances by way of
Bankers' Acceptances, and on each date on which the Borrower pays interest on
LIBOR Advances, in respect of LIBOR Advances.
6. This Assignment Agreement shall be exclusively governed by, and construed in
accordance with the laws of the Province of British Columbia, Canada.
7. This Assignment Agreement may be executed in any number of counterparts and
by
- 3 -
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Assignment Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment Agreement to be executed by their duly authorized officers as of the
dates specified below.
Assignor:
-------------------------------
By:
-------------------------------
Name:
Title:
Dated:
-------------------------
Assignee:
-------------------------------
By:
-------------------------------
Name:
Title:
Dated:
-------------------------
- 4 -
Approved on [IF APPLICABLE] Approved on
THE TORONTO-DOMINION BANK, NORSKE ▇▇▇▇ CANADA LIMITED
as Agent
By: By:
------------------------------ --------------------------------
Name: Name:
Title: Title:
Effective Date: Date:
------------------ ---------------------
- 5 -
APPENDIX 1
TO
ASSIGNMENT AGREEMENT
Proportionate Share assigned by Assignor:
--------------------------------
Proportionate Share retained by Assignor:
--------------------------------
Payment Details, including address of Assignee for notices:
APPENDIX 2
TO
ASSIGNMENT AGREEMENT
Advances in respect of which the Assignee is to indemnify the Assignor, as of
the Effective Date:
TYPE OF ADVANCE MATURITY DATE OF ADVANCE PRINCIPAL AMOUNT OF ADVANCE
INDEMNITY FEE:
SCHEDULE E
PROPORTIONATE SHARES OF LENDERS
[SEE REFERENCES IN SECTIONS 1.1.60, 1.1.96, 1.1.77, 1.1.117, 1.1.119,
8.2, 13.2.4]
[NOTE: SEE ATTACHED]
SCHEDULE F
DETAILS OF CAPITAL STOCK, PROPERTY ETC.
[SEE REFERENCES IN SECTIONS 9.1.5(A), 10.4, 10.5.2(B)(I), 10.5.2(B)(II),
10.5.3(C)]
1. NORSKE ▇▇▇▇ CANADA LIMITED
Capital Stock: Public Company
Head Office: ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Street
P.O. Box ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Real Property:
Owned:
PID: LEGAL DESCRIPTION:
005 932 092 Those parts of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 925 RW
007 388 004 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ except parts in
Plans 11613, 13731 and 16471
▇▇▇ ▇▇▇ ▇▇▇ That part of Parcel C (DD 36578I) of Section 2 Range 7 Chemainus District
outlined in red on Plan 920 RW
005 419 239 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ in Plan
920 RW
009 024 174 That part of Parcel B (DD 99604I) of Section 5 Range 10 Chemainus
District outlined in red on Plan 925 RW
005 932 190 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ lying to
the south east of the south easterly boundary of Plan 925 RW
009 024 336 That part of Section 3 Range 8 Chemainus District outlined in red on Plan
920 RW
009 024 310 That part of Section 4 Range 9 Chemainus District outlined in red on Plan
925 RW
009 024 379 That part of Parcel E (DD 141335I) of ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ outlined in red on Plan 920 RW
009 024 417 That part of Parcel D (DD 65699I) of ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
outlined in red on Plan 920 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of Parcel D (DD 118337I) of Section 4 and 5 Range 8 Chemainus
District outlined in red on Plan 920 RW and lying wholly within Section 4
005 968 585 That portion of that part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ lying to the West of the Westerly boundary of Plan 645 RW shown
- 2 -
PID: LEGAL DESCRIPTION:
outlined in red on Plan 911 RW and containing 1.27 acres more or less
009 739 637 Section 8 Range 9 Chemainus District
009 739 611 Section 7 Range 9 Chemainus District
009 739 718 Those parts of Section 9 Range 8 Chemainus District lying East of the
Chemainus River, including all that part of a strip of land 33 feet wide as
shown coloured purple and green on Plan 16 BL known as Mainguy Road
009 739 688 Those parts of Section 8 Range 8 Chemainus District lying East of the
Chemainus River, including all that part of a strip of land 33 feet wide as
shown coloured purple and green on Plan 16 BL, known as Mainguy Road
009 739 653 Those parts of Section 7 Range 8 Chemainus District, lying East of the
Chemainus River including all that part of a strip of land 33 feet wide as
shown coloured purple and green on Plan 16 BL, known as Mainguy Road
009 739 785 ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ 2 Chemainus District
003 982 840 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
004 798 619 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
004 979 087 Lot 1 Sections 3 and 4 Ranges 9 and 10 Chemainus District Plan 12168
006 244 637 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 3198
009 956 069 Section 3 Range 9 Chemainus District except parts in Plans 920 RW and
921 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of Section 5 Renfrew District (situate in Cowichan Lake District)
as shown outlined in red on Plan 457 BL
006 912 524 ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (situate in Cowichan Lake District)
Plan 1750
006 912 516 ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (situate in Cowichan Lake District)
Plan 1750
008 768 820 District ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
006 912 567 ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (situate in Cowichan Lake District)
Plan 1750
006 912 494 ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (situate in Cowichan Lake District)
Plan 1750
006 912 451 ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (situate in Cowichan Lake District)
Plan 1750
007 655 517 Block ▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ except part in Plan 31221
005 145 473 ▇▇▇ ▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
007 663 544 That part of District ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ being that portion of
Fern Road dedicated by Plan 1231 and closed by
Order-In-Council No. 1754 dated 16th day of July, 1956 as
shown outlined in red on Plan 458 BL
018 195 326 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ VIP56262
005 338 859 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
- 3 -
PID: LEGAL DESCRIPTION:
in red on Plan 903 RW
009 662 481 That part of Parcel G (DD 36290I) of Sections 18 and 19 Range 4
Quamichan District shown outlined in red on Plan 903 RW and containing
0.08 acres and 0.30 acres more or less
009 662 278 That part of Parcel P (DD 76080I) of Sections 17, 18 and 19 Range 4
Quamichan District shown outlined in red on Plan 903 RW and lying
entirely in Section 18
006 360 564 That part of ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ shown in red on Plan 903 RW
006 738 567 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 903 RW
006 738 524 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 903 RW
006 738 354 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 903 RW
006 360 742 That part of ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown in red on Plan 903 RW
006 157 971 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
outlined red on Plan 903 RW
009 668 314 That part of Parcel D (DD 106367I) of Section 19 Range 4 Quamichan
District shown outlined in red on Plan 903 RW
006 068 065 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
in red on Plan 903 RW
004 680 499 Lot A Section 19 Range 4 Quamichan District Plan 12945
005 586 445 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 8636
005 586 437 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 8636
005 586 429 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 8636
006 442 382 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 910 RW
008 162 794 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plan 972 shown
outlined in red on Plan 903 RW
009 797 807 That part of Section 20 Range 7 Somenos District outlined in red on Plan
911 RW and containing 0.66 acres more or less
009 797 939 That part of Section 19 Range 7 Somenos District lying West of Parcel A
(DD 43540I) outlined in red on Plan 911 RW and containing 0.67 acres
more or less
009 744 495 That part of the East 70 acres of Section 17 Range 6 Somenos District
shown outlined in red on Plan 911 RW
006 406 891 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
- 4 -
PID: LEGAL DESCRIPTION:
006 405 754 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
005 557 755 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 9162
007 104 057 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 902 RW
008 162 760 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plan 972 shown
outlined in red on Plan 903 RW
005 934 389 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 911 RW
009 796 649 That part of Parcel A (DD 43540I) of Sections 19 and 20 Range 7 Somenos
District lying within Section 19 included in Plan 911 RW
009 772 995 That part of Parcel A (DD 42185I) of Section 12 Range 5 Somenos District
shown outlined in red on Plan 910 RW
009 773 398 That part of Section 13 Range 5 Somenos District outlined in red on Plan
910 RW
005 934 354 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 911 RW
008 162 824 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plan 972 shown
outlined in red on Plan 903 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 902 RW
009 773 185 That part of Section 12 Range 5 Somenos District lying to the south of
Parcel A (DD 42185I) shown outlined in red on Plan 910 RW
009 774 483 Those parts of Parcel A (DD 89348I) of Sections 14 and 15 Range 5
Somenos District outlined in red on Plans 910 RW and 911 RW except part
in Plan 15076
006 248 110 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 827R included within Plan 911 RW
006 441 980 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 910 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 911 RW except that part in Plan 15076
009 744 517 That part of the west 50 acres of Section 18 Range 7 Somenos District
shown outlined in red on Plan 911 RW
009 744 444 That part of Parcel B (DD 77714I) of ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shown
outlined in red on Plan 911 RW
009 744 509 That part of the West 50 acres of Section 17 Range 7 Somenos District
shown outlined in red on plan deposited under DD 23410 included in Plan
911 RW
009 744 487 Those parts of Parcel A (DD 77714I) of Section 16 Range 6 Somenos
- 5 -
District shown outlined in red on Plan 911 RW
006 582 311 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
006 568 556 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown in
red on Plan 902 RW
009 872 906 That part of the south 1/2 of Section 8 Range 4 Somenos District shown
outlined in red on Plan 902 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
006 609 007 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
006 246 851 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 911 RW except that part in Plan 15076
006 442 641 That part of ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 910 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 910 RW
005 576 695 That part of Section 11 Range 4 Somenos District shown outlined in red on
Plan 910 RW
009 759 492 That part of Section 4 Range 3 Somenos District shown outlined in red on
Plan 902 RW
006 407 234 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
009 774 939 That part of Parcel C (DD 174586I) of Section 14 Range 5 Somenos District
outlined in red on Plan 910 RW
006 581 684 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
009 764 151 That part of Section 5 Range 4 Somenos District shown outlined in red on
Plan 902 RW
005 576 571 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown in
red on Plan 903 RW
006 440 347 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 910 RW
007 104 375 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 902 RW
006 406 939 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
- 6 -
PID: LEGAL DESCRIPTION:
outlined in red on Plan 902 RW
007 104 936 That part of ▇▇▇ ▇ ▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
shown outlined in red on Plan 902 RW
▇▇▇ ▇▇▇ ▇▇▇ That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇ and 4 Somenos District Plan 2794
shown in red on Plan 902 RW
006 383 025 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 902 RW
005 576 539 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 8611
003 733 998 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
007 388 209 ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Except part in
Plan 11574
013 194 976 That part of Section 5 Ranges 8, 9 and 10 and Section 4 Range 8 Chemainus
District shown outlined in red in DD 27614
013 194 470 That part of Sections 4 and 5 Range 8 Chemainus District shown outlined
in red on plan attached to DD 24931
013 194 381 That part of Section 4 Range 8 Chemainus District shown outlined in red on
plan attached to DD 23242
013 143 123 That part of Sections 5 and 6 Range 10 and that part of the foreshore of
District ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shown coloured red on plan deposited
under DD 14529I
009 922 431 That part of Section 1 Range 11 Chemainus District lying to the North of the
Northerly boundary of ▇▇▇▇▇▇▇ Street as said street is shown on Plan 739 and
the production easterly of the said northerly boundary, except parts in Plans
4257 and 23431
009 920 145 That part of Section 5 Range 9 Chemainus District lying Northerly and
Westerly of Plan 5803, except parts in Plans 4302 and 9775
009 925 431 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
009 921 168 That part of Section 2 Ranges 10 and ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in Plan DD
8239I containing 31.7 acres more or less except part in Plan 856 BL
009 862 021 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
005 852 293 ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 6538
009 034 595 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ except part in Plan 6538
009 861 998 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
004 627 938 ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ 887 District ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ except that part included in the right of
way of the Esquimalt and Nanaimo Railway Company
006 116 981 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ shown
outlined in red on Plan 815 R
000 167 886 Lot A Section 4 Range 9 Chemainus District Plan 32612
004 169 948 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plan 15020
- 7 -
PID: LEGAL DESCRIPTION:
000 573 736 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ except part in Plan
15020 and 41332
006 116 965 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ lying
to the north of a boundary parallel to the northerly boundary of said lot and
extending from a point on the easterly boundary of said lot distant 1.515 chs.
from the north east corner of said lot
006 116 973 That part of ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ lying
south of a boundary parallel to the northern boundary of said lot and
extending from a point on the easterly boundary thereof distant 1.515 chs.
from the north east corner of said lot, except that part thereof shown outlined
in red on Plan 815R
006 066 551 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 4257
009 921 958 That part of Section 6 Range 10 Chemainus District lying to the north of the
right of way of the Esquimalt and Nanaimo Railway Company
009 920 196 Section 6 Range 9 Chemainus District except parts in Plans 4302 and 5803
009 920 803 Section 4 Range 9 Chemainus District except the west 30 chains and except
parts in Plans 925 RW, 13072, 22398 and 32612
009 920 064 That part of Section 5 Range 8 Chemainus District lying easterly of the
centre line of Tsussie Creek (which is the easterly bondary of Plan 4302) and
to the north of the northerly boundary of the right of way of the Esquimalt
and Nanaimo Railway Company shown on Plan DD 27614, except parts in
Plans 5803 and 9775
024 662 666 Lot 1 of Sections 4, 5 & 6 Range ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
024 662 674 ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇, ▇ & ▇ ▇▇▇▇▇▇ ▇▇ & 11 Chemainus District and of
Sections 5 & 6 Range 10 Chemainus District and of District
Lots 141 and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
024 663 018 ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇, ▇, & ▇ ▇▇▇▇▇▇ ▇▇ & 11 and District ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and of District Lots 141 and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
024 663 034 ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇, ▇ & ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
024 663 115 ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ and ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Leased:
REAL PROPERTY LEASES
PID: LEGAL DESCRIPTION:
▇▇▇-▇▇▇-▇▇▇ District ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇ (EP9962), Plan ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇, ▇ ▇▇ ▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (Originally 81760
Sq. Ft. Floors 7-11 amended numerous times) Head Lease Bos HQ FCCL
- 8 -
PID: LEGAL DESCRIPTION:
(also month to month lease of space on 19th Floor - Yr. 2001) (▇▇▇▇▇▇▇▇
Challenge Canada Limited)
▇▇▇-▇▇▇-▇▇▇ Sections 2 and 3, Chemainus ▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Trailer Site, ▇▇▇▇▇ Street, Crofton P&P (▇▇▇▇▇▇▇▇ Challenge Canada
Limited)
▇▇▇-▇▇▇-▇▇▇ Section 2, Chemainus Lot A Range 6 and 7, Plan 45436, Gas Monitoring
Trailer Site, ▇▇▇▇▇ Road, Crofton P&P (▇▇▇▇▇▇▇▇ Challenge Canada
Limited)
▇▇▇-▇▇▇-▇▇▇ Sections 12 and 13, ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Gas Monitoring
Trailer Site Located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇&▇ (▇▇▇▇▇▇▇▇
Challenge Canada Limited)
District ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇, ▇▇, ▇▇, ▇▇, ▇▇▇▇▇ 43, District
Plan 198, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (basement storage
space) Bos FCCL (also contains TWFL historical records)
(▇▇▇▇▇▇▇▇ Challenge Canada Limited)
N/A District ▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Proposed
Warehouse Distribution Centre (under negotiation by the Wesik
Group) Distribution Pulp FCCL (ownership not available at this
time)
PROVINCIAL WATER LOT LEASES
Crofton Facility:
W/Lot Lease #102130 - District Lot 107G; Blk D Chemainus (Prev. #13180)
Log Booming & Wharfage (Sublet 15 Dec 1993 Stuart Channel Wharves)
W/Lot Lease #102653 - District Lot 107G; Blk A & B Chemainus (Prev.
#13181) Warehouse & Dock #1 & #2 & Part Stuart Channel Wharves Dock #3
(.2274 AC. SCW) W/Lot Lease #101412 - Lot 161; Blk B Cowichan Log
Storage, Shipping & Industrial PT W/Lot Lease #106051 - DL 565, 676,
2008; Blk E Cowichan (Prev. #101709 & PT 103929) Log Dumping, Booming,
Storage, Scow & Chip Barge Moorage, Industrial Purposes
Elk Falls Facility:
W/Lot Lease #101447 - Blk A Lot 1504; Sayward (Prev. #29554) ▇▇▇▇▇▇ Bay
Fronting Pulp Mill Complex W/Lot Lease #100785 - ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇;
▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ next to Middle Point Barge Tie Up & Log
Storage (Upland DL 2,26)
FEDERAL WATER LOT LEASES
W/Lot Lease #05020, between the North Fraser Port Authority (landlord)
and Norske ▇▇▇▇
- 9 -
Canada Limited (tenant), for a Chip Loading Site Fronting Kent Avenue
(0.806 ha.)
Nature of Business: Paper Manufacturing
Jurisdictions in which its property other than accounts receivable is located:
British Columbia
Capital Stock Holdings:
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
BPC Holdings Ltd. 7-A 2,230 Class A Preference Shares
8-A 1,900 Class A Preference Shares
9-A 819 Class A Preference Shares
10-A 4,095 Class A Preference Shares
11-A 5,430 Class A Preference Shares
12-A 740 Class A Preference Shares
7 1 common share
8 80,000,000 common shares
9 2,417,782 common shares
10 11,100,689 common shares
Elk Falls Pulp and Paper
Limited 3 1 common share
Norske ▇▇▇▇ Canada
(Japan) Ltd. C No.002 1,000 shares
Norske ▇▇▇▇ Canada
Pulp Operations Limited 6 53,683,253 common shares
7 46,026,332 common shares
8 24,474,668 common shares
9 1 common share
Norske ▇▇▇▇ Canada
Sales Inc. 7 1,000 common shares
1076899 Holdings Ltd. 1-C 101 common shares
1203819 Ontario Limited C-1 1 common share
- 10 -
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
3264904 Canada Limited 3 1 common share
468327 B.C. Ltd. 1-C 2,000 common shares
566816 B.C. Ltd. 2 100 common shares
British Columbia Forest
Products Limited 2 1 common share
Catalyst Paper Corporation
(B.C.) 1 1 common share
Catalyst Paper Corporation
(Canada) 1 1 common share
Crofton Pulp and Paper
Limited 7 1 common share
8 1 common share
Echelon Paper Corporation
(B.C.) 1 1 common share
Echelon Paper Corporation
(Canada) 1 1 common share
NSC Holdings
(Barbados) Limited 100% of Capital
Stock (details
unknown)
NSC Holdings
(Philippines) Inc. (unknown) 79,475 common shares
NSCL Holdings Inc. 4 1,000 common stock
▇▇▇▇ & Talbot Inc. CS20955 1,750,000 common shares
2. NORSKE ▇▇▇▇ CANADA FINANCE LIMITED
Capital Stock: Authorized Capital: 10,000 Common Shares without par value
- 11 -
Issued and outstanding Shares: 10 Common Shares
Members: Norske ▇▇▇▇ Pulp Operations Limited
Head Office: ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Street
P.O. Box ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Real Property:
Owned: Nil
Leased: Nil
Nature of Business: To borrow funds and lend them on to the Norske Group of
Companies
Jurisdictions in which its property other than accounts receivable is located:
British Columbia
Capital Stock Holdings: Nil
3. NORSKE ▇▇▇▇ CANADA PULP OPERATIONS LIMITED
Capital Stock: Authorized capital: unlimited number of common shares
Issued and outstanding shares: 124,189,254 common shares
Members: Norske ▇▇▇▇ Canada Limited
Head Office: ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Street
P.O. Box ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Real Property:
Owned: Nil
Leased: Real Property Leases
FEDERAL WATER LOT LEASES
- 12 -
W/Lot Lease #E-04-06, between the Fraser River Port Authority
(landlord) and 3264912 Canada Limited (now Norske ▇▇▇▇ Canada Pulp
Operations Limited), for a Barge Tie-up & Fiber Supply Loading Area
near Port ▇▇▇▇ (2.248 ha.)
Nature of Business: Pulp Manufacturing
Jurisdictions in which its property other than accounts receivable is located:
British Columbia
Capital Stock Holdings:
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF
SECURITIES
Norske ▇▇▇▇ Canada Pulp
Sales Inc. 3 1 common share
Norske ▇▇▇▇ Pulp Sales
(Japan) Ltd. B No.001 600 shares
Norske ▇▇▇▇ Canada
Finance Limited 2 10 common shares
Allwin Technical Services Inc. 2 1 common share
4 1,349,999 common shares
4. ELK FALLS PULP AND PAPER LIMITED
Capital Stock: Authorized capital: 10,000,000 common shares without par value
Issued and outstanding shares: 1 common
Members: Norske ▇▇▇▇ Canada Limited
Head Office: ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Street
P.O. Box ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Real Property:
Owned:
PID: LEGAL DESCRIPTION:
000 849 731 District Lot 120 (DD 2157781) Sayward District Except Part in Plans 14946
and VIP57724
- 13 -
PID: LEGAL DESCRIPTION:
000 849 821 That part of District ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shown outlined in red on Plan
1374 RW
000 848 905 Lot A DL 68 Sayward District Plan 20538
▇▇▇ ▇▇▇ ▇▇▇ That part of DL 151 Sayward District shown outlined in red on Plan 1433R
▇▇▇ ▇▇▇ ▇▇▇ That Part of DL 163 Sayward District shown outlined in red on Plan 1431R
001 233 475 Block B of Lot 1504 Sayward District
001 233 467 Block C of Lot 1504 Sayward District
001 233 459 Block D of Lot 1504, Sayward District
000 848 913 ▇▇▇ ▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
000 849 855 That part of DL 52 Sayward District shown outlined in red on Plan 659 RW
000 849 847 That part of DL 67 Sayward District shown outlined in red on Plan 659 RW
000 849 910 District ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ except part in Plans 34604 and 42540
000 848 921 ▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 16956
000 849 430 District ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shown outlined in red on Plan 1431R
001 233 432 District Lot 109 Sayward District except Parcel A (DD 285472-I) and those
parts in Plans 1373-R, 16956, 19371, 50636 and VIP54479 and VIP64521
001 233 441 Lot 1599 Sayward District except that portion in Plan VIP 64521
000 846 287 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ except those parts in Plans 19371, 42540,
50636, VIP 64521 and VIP 64522
015 101 231 Amended Bl 24 (See 235568L) DL 313 Plan 827
▇▇▇ ▇▇▇ ▇▇▇ Lot A (See M51221L) Bl 23 DL 313 Plan 827
Note: Elk Falls Pulp and Paper Limited holds legal title only to the above
properties. Norske ▇▇▇▇ Canada Limited holds beneficial title.
Leased:
PID: LEGAL DESCRIPTION:
N/A Site Lease ▇▇▇ #▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇ Sections 1 and ▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Loading Site, 14021 Port ▇▇▇▇ Shore
District of Surrey, Fibre Supply EFFIL (Elk Falls Pulp and
Paper Limited)
Nature of Business: Bare Trust Company
Jurisdictions in which its property other than accounts receivable is located:
British Columbia
Capital Stock Holdings: Nil
- 14 -
5. NORSKE ▇▇▇▇ CANADA SALES INC.
Capital Stock: Authorized capital: 10,000 common shares without par value
Issued and outstanding shares: 1,000 common shares
Members: Norske ▇▇▇▇ Canada Limited
Head Office: ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Street
P.O. Box ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Real Property:
Owned: Nil
Leased: Nil
Nature of Business: Paper Sales
Jurisdictions in which its property other than accounts receivable is located:
British Columbia
Capital Stock Holdings: Nil
6. NORSKE ▇▇▇▇ CANADA PULP SALES INC.
Capital Stock: Authorized capital: 100,000,000 common shares without par value
Issued and outstanding shares: 1 common share
Members: Norske ▇▇▇▇ Canada Pulp Operations Limited
Head Office: ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Street
P.O. Box ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Real Property:
Owned: Nil
Leased: Nil
Nature of Business: Pulp Sales
- 15 -
Jurisdictions in which its property other than accounts receivable is located:
British Columbia, Ontario, New Jersey, New York, Wisconsin,
Michigan, Illinois, Washington, Australia, Belgium, Germany, United
Kingdom, Japan, Italy, France, Switzerland, Spain
Capital Stock Holdings: Nil
NORSKE ▇▇▇▇ PULP SALES (JAPAN) LTD.
Capital Stock: Authorized capital: 800 shares with a par value of(Y)50,000 each
Issued and outstanding shares: 600 shares
Members: Norske ▇▇▇▇ Canada Pulp Operations Limited
Head Office: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇-▇, ▇▇▇▇▇ ▇▇▇▇ ▇-▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇
Real Property:
Owned: Nil
Leased: Nil
Nature of Business: Pulp Sales
Jurisdictions in which its property other than accounts receivable is located:
Japan
Capital Stock Holdings: Nil
7. NORSKE ▇▇▇▇ CANADA (JAPAN) LTD.
(known as ▇▇▇▇▇▇▇▇ Challenge Paper Sales (Japan) Ltd. until 1 August 2001)
Capital Stock: Authorized capital: 4,000 shares with a par value of
(Y)50,000 each
Issued and outstanding shares: 1,000 shares (value of
(Y)50,000 each)
Members: Norske ▇▇▇▇ Canada Limited
Head Office: Ginza ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇-▇ ▇▇▇▇▇ 1-chome, Chuo-ku
Tokyo 104-0061, Japan
- 16 -
Real Property:
Owned: Nil
Leased: Nil
Nature of Business: Paper Sales
Jurisdictions in which its property other than accounts receivable is located:
Japan
Capital Stock Holdings: Nil
8. NSCL HOLDINGS INC.
Capital Stock: Authorized capital: 1,000,000 common stock with a par value
of US$1
Issued and outstanding shares: 1,000 common stock
Members: Norske ▇▇▇▇ Canada Limited
Head Office: The Corporation Trust Company
Corporation Trust Center
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Chief Executive Office: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Real Property:
Owned: Nil
Leased: Nil
Nature of Business: Holding Company
Jurisdictions in which its property other than accounts receivable is located:
not applicable (holding company)
Capital Stock Holdings:
- 17 -
CORPORATION CERTIFICATE NO. NUMBER AND CLASS OF SECURITIES
Norske ▇▇▇▇ Paper Company 4 1,000 common stock
Arizona Newsprint Industries
Corporation 2 1,000 common stock
NSC Fibre Inc. 2 1,000 common stock
9. NORSKE ▇▇▇▇ PAPER COMPANY
Capital Stock: Authorized capital: 1,000,000 common shares
Issued and outstanding shares: 1,000 common shares
Member: NSCL Holdings Inc.
Head Office: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Real Property:
Owned: Nil
Leased: Nil
Nature of Business: Paper Sales
Jurisdictions in which its property other than accounts receivable is located:
California, Colorado, Illinois, Washington, Oregon
Capital Stock Holdings: Nil
SCHEDULE G
MATERIAL CONTRACTS
[SEE REFERENCE IN SECTION 1.1.67(A)]
Norske ▇▇▇▇ Canada Limited
PART A
Fibre Supply Material Contracts:
1. Chip and sawlog supply agreement made the 8th day of September, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Forest Products Limited (which changed its name to ▇▇▇▇▇▇▇▇
Challenge Canada Limited, which changed its name to Norske ▇▇▇▇ Canada Limited)
and ▇▇▇▇▇ Industries Limited, as amended by a letter agreement dated May 26,
1995 from ▇▇▇▇▇▇▇▇ Challenge Canada to ▇▇▇▇▇ Forest Products Limited and by a
letter agreement dated July 14, 1998 from ▇▇▇▇▇▇▇▇ Challenge Canada Limited to
▇▇▇▇▇ Forest Products Limited
Current Parties: Norske ▇▇▇▇ Canada Limited and ▇▇▇▇▇ Industries Limited
2. Sawdust purchase agreement made as of the 1st day of January, 1987 between
▇▇▇▇▇ Forest Products Limited and Crown Forest Industries Limited, as amended by
a letter agreement dated May 26, 1995 from ▇▇▇▇▇▇▇▇ Challenge Canada to ▇▇▇▇▇
Forest Products Limited and by a letter agreement dated July 14, 1998 between
▇▇▇▇▇▇▇▇ Challenge Canada Limited to ▇▇▇▇▇ Forest Products Limited
Current Parties: Crown Forest Industries Limited and ▇▇▇▇▇ Forest Products
Limited
3. Chip and pulplog supply agreement dated December 30, 1991 among ▇▇▇▇▇▇▇▇
Challenge Canada Limited (which is now named Norske ▇▇▇▇ Canada Limited), Crown
Forest Industries Limited and International Forest Products Limited, as amended
by an amending agreement dated the 18th day of June, 1997 among International
Forest Products Limited, ▇▇▇▇▇▇▇▇ Challenge Canada Limited and Crown Forest
Industries Limited, as assigned by Crown Forest Industries Limited to Elk Falls
Forest Industries Limited pursuant to an assignment made the 25th day of
September, 2000 among Crown Forest Industries Limited, Elk Falls Forest
Industries Limited and International Forest Products Limited, and then assigned
by Elk Falls Forest Industries Limited to Norske ▇▇▇▇ Canada Limited pursuant to
an assumption and distribution agreement made the 1st day of January, 2001
between Elk Falls Forest Industries Limited and Norske ▇▇▇▇ Canada Limited in
connection with the wind-up of Elk Falls Forest Industries Limited
Current Parties: Norske ▇▇▇▇ Canada Limited and International Forest Products
Limited
4. Residual fibre supply agreement dated December 30, 1991 among ▇▇▇▇▇▇▇▇
Challenge
- 2 -
Canada Limited (which is now named Norske ▇▇▇▇ Canada Limited), Crown Forest
Industries Limited and International Forest Products Limited, as assigned by
Crown Forest Industries Limited to Elk Falls Forest Industries Limited pursuant
to an assignment made the 25th day of September, 2000 among Crown Forest
Industries Limited, Elk Falls Forest Industries Limited and International Forest
Products Limited, and then assigned by Elk Falls Forest Industries Limited to
Norske ▇▇▇▇ Canada Limited pursuant to an assumption and distribution agreement
made the 1st day of January, 2001 between Elk Falls Forest Industries Limited
and Norske ▇▇▇▇ Canada Limited in connection with the wind-up of Elk Falls
Forest Industries Limited
Current Parties: Norske ▇▇▇▇ Canada Limited and International Forest Products
Limited
5. Chip supply agreement dated November 19, 1992 between Crown Forest Industries
Limited and Riverside Forest Products Limited, as assigned by Crown Forest
Industries Limited to Elk Falls Forest Industries Limited pursuant to an
assignment made the 6th day of July, 2000 between Crown Forest Industries
Limited, Elk Falls Forest Industries Limited and Riverside Forest Products
Limited, and then assigned by Elk Falls Forest Industries Limited to Norske ▇▇▇▇
Canada Limited pursuant to an assignment and distribution agreement made the 1st
day of January, 2001 between Elk Falls Forest Industries Limited and Norske ▇▇▇▇
Canada Limited in connection with the wind-up of Elk Falls Forest Industries
Limited
Current Parties: Norske ▇▇▇▇ Canada Limited and Riverside Forest Products
Limited
6. Amended and restated chip and pulplog supply agreement made as of the 23rd
day of June, 1997 between 3264891 Canada Limited and 3264812 Canada Limited
(which subsequently amalgamated with 3264939 Canada Limited to form 3418146
Canada Limited, which changed its name to ▇▇▇▇▇▇▇▇ Challenge Canada Pulp
Operations Limited) and TimberWest Forest Limited (which changed its name to TFL
Forest Ltd.), as assigned in part by TimberWest Forest Limited to TimberWest
Forest Company, a partnership of TimberWest Forest Corp., TFL Forest Ltd. and
PFP Forest Ltd. pursuant to an unwritten assignment and amended by chip and
pulplog supply agreement amendment made as of the 1st day of January, 1999
between ▇▇▇▇▇▇▇▇ Challenge Canada Pulp Operations Limited (which changed its
name to Norske ▇▇▇▇ Canada Limited), TFL Forest Ltd. and TimberWest Forest
Company, a partnership of TimberWest Forest Corp., TFL Forest Ltd. and PFP
Forest Ltd.
Current Parties: Norske ▇▇▇▇ Canada Pulp Operations Limited and TFL Forest Ltd.
and TimberWest Forest Company, a partnership of TimberWest Forest Corp., TFL
Forest Ltd. and PFP Forest Ltd.
7. Amended and restated timber harvesting management agreement made as of the
1st day of January, 1999 between ▇▇▇▇▇▇▇▇ Challenge Canada Limited (which
changed its name to Norske
- 3 -
▇▇▇▇ Canada Limited), TimberWest Forest Corp. and TimberWest Forest Company, a
partnership of TimberWest Forest Corp., TFL Forest Ltd. and PFP Forest Ltd.
Current Parties: Norske ▇▇▇▇ Canada Limited and TimberWest Forest Corp. and
TimberWest Forest Company, a partnership of TimberWest Forest Corp., TFL Forest
Ltd. and PFP Forest Ltd.
Non-Fibre Supply Material Contracts:
8. Pulp Contract of Affreightment dated September 13, 2000 between Star Shipping
A/S and ▇▇▇▇▇▇▇▇ Challenge Canada Pulp Operations Limited for Star Shipping A/S
to ship wood pulp from Norske ▇▇▇▇ ▇▇▇▇▇ to North Europe, the Mediterranean,
Japan and Korea
Current Parties: Norske ▇▇▇▇ Canada Pulp Operations Limited and Star Shipping
A/S
9. Norsul Contract of Affreightment dated April 11, 2000 between Companhia de
Navegacao Norsul (Brasil) and Norske ▇▇▇▇ Canada Limited for Companhia de
Navegacao Norsul (Brasil) to ship newsprint from British Columbia to Central and
East Coast South America
Current Parties: Companhia de Navegacao Norsul (Brasil) and Norske ▇▇▇▇ Canada
Limited
10. Distribution Centre Services Agreement dated June 1, 1999 between Sylvan
Distribution Ltd. and ▇▇▇▇▇▇▇▇ Challenge Canada Limited for Sylvan Distribution
Ltd. to provide distribution centre services; including handling, storage and
cross docking, to Norske ▇▇▇▇ Canada Limited at its leased warehouse space in
Surrey
Current Parties: Sylvan Distribution Ltd. and Norske ▇▇▇▇ Canada Limited
11. Sublease of Upland Lease dated June 12, 1998 between Wesik Enterprises Ltd.
("Wesik"), as sublandlord, and ▇▇▇▇▇▇▇▇ Challenge Canada Limited, as subtenant
Current Parties: Wesik Enterprises Ltd. and Norske ▇▇▇▇ Canada Limited
12. Option to Renew Upland Lease dated June 12, 1998 between Wesik and ▇▇▇▇▇▇▇▇
Challenge Canada Limited
Current Parties: Wesik Enterprises Ltd. and Norske ▇▇▇▇ Canada Limited
13. Sublease of Waterlot Lease dated June 12, 1998 between Wesik, as
sublandlord, and ▇▇▇▇▇▇▇▇ Challenge Canada Limited, as subtenant
- 4 -
Current Parties: Wesik Enterprises Ltd. and Norske ▇▇▇▇ Canada Limited
14. Property Management Services Agreement dated March 1, 1999 between Wesik and
the Corporation for Wesik to provide property management services for the Upland
Lease, the Waterlot Lease and the improvements on the leased properties
Current Parties: Wesik Enterprises Ltd. and Norske ▇▇▇▇ Canada Limited
15. Rail Spur Sublicence dated June 18, 1998 between Wesik, as sublicensor, and
the ▇▇▇▇▇▇▇▇ Challenge Canada Limited, as sublicensee, permitting the
Corporation to use the rail spur on the leased properties
Current Parties: Wesik Enterprises Ltd. and Norske ▇▇▇▇ Canada Limited
16. Vancouver Island Gas Restated Joint Venture Agreement dated November 4, 1994
among Harmac Pacific Inc., ▇▇▇▇ Sound Pulp, MacMillan ▇▇▇▇▇▇▇ Limited, Western
Pulp Limited Partnership and the ▇▇▇▇▇▇▇▇ Challenge Canada Limited (known as
"Vancouver Island Gas Restated Joint Venture")
Current Parties: ▇▇▇▇ & Talbot Ltd., ▇▇▇▇ Sound Pulp and Paper Limited, Pacifica
Papers Inc., Western Pulp Limited Partnership and the Norske ▇▇▇▇ Canada Limited
17. Addendum to the Vancouver Island Gas Restated Joint Venture Agreement dated
July 4, 1995 among Harmac Pacific Inc., ▇▇▇▇ Sound Pulp, MacMillan ▇▇▇▇▇▇▇
Limited, Western Pulp Limited Partnership and the ▇▇▇▇▇▇▇▇ Challenge Canada
Limited (known as "Vancouver Island Gas Restated Joint Venture") wherein the
joint venturers agreed to enter into good faith negotiations to fix the tolls to
be charged for the transportation of gas on the Pacific Coast Energy Corporation
system
Current Parties: ▇▇▇▇ & Talbot Ltd., ▇▇▇▇ Sound Pulp and Paper Limited, Pacifica
Papers Inc., Western Pulp Limited Partnership and the Norske ▇▇▇▇ Canada Limited
18. Oxygen Supply Agreement dated September 1, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
("Praxair") and ▇▇▇▇▇▇▇▇ Challenge Canada Limited, as amended by Amending
Agreement to the Air Separation Services Amending Agreement dated September 1,
1993 and Amending Agreement to the Air Services Amending Agreement Dated
September 1, 1993 dated January 1, 1995, for the supply of oxygen and separation
services for the compressed air delivered to ▇▇▇▇▇▇▇▇ Challenge Canada Limited
at Praxair's Facility at the Crofton pulp mill
Current Parties: Praxair Canada Inc. and Norske ▇▇▇▇ Canada Limited
- 5 -
19. Air Separation Services Agreement dated October 1, 1993 between Praxair and
▇▇▇▇▇▇▇▇ Challenge Canada Limited, as amended by Amending Agreement to the Air
Separation Services Agreement Dated October 1, 1993 dated January 1, 1995, for
the supply of oxygen and separation services to ▇▇▇▇▇▇▇▇ Challenge Canada Pulp
Operations Limited at Praxair's Facility at the Elk Falls pulp mill
Current Parties: Praxair Canada Inc. and Norske ▇▇▇▇ Canada Limited
20. Oxygen Supply Agreement dated March 1, 1990 between Linde Canada Inc.
(formerly Linde Division, Union Carbide Canada Limited) and ▇▇▇▇▇▇▇▇ Challenge
Canada Limited for Linde Canada Inc. to construct a facility at the Crofton pulp
mill and to supply oxygen to ▇▇▇▇▇▇▇▇ Challenge Canada Limited
Current Parties: Praxair Canada Inc. and Norske ▇▇▇▇ Canada Limited
PART B
Fibre Supply Material Contracts:
21. Chip and pulplog supply agreement dated April 5, 1993 between ▇▇▇▇▇▇▇▇
Challenge Canada Limited (which is now named Norske ▇▇▇▇ Canada Limited) and
Columbia River Shake & Shingle Ltd., ▇.▇. ▇▇▇▇▇ Holdings Ltd., ▇.▇. ▇▇▇▇▇ Timber
Ltd., Teal Cedar Products (1977) Ltd. and Teal Cedar Products Ltd. (which are
now Columbia River Shake & Shingle Ltd. and Teal Cedar Products Ltd. as a result
of amalgamations)
Current Parties: Norske ▇▇▇▇ Canada Limited and Columbia River Shake & Shingle
Ltd. and Teal Cedar Products Ltd.
22. Stag/Pitt Lake fibre supply agreement dated April 5, 1993 between ▇▇▇▇▇▇▇▇
Challenge Canada Limited (which is now named Norske ▇▇▇▇ Canada Limited) and
Columbia River Shake & Shingle Ltd., ▇.▇. ▇▇▇▇ Holdings Ltd., ▇.▇. ▇▇▇▇▇ Timber
Ltd., Teal Cedar Products (1977) Ltd. and Teal Cedar Products Ltd. (which are
now Columbia River Shake & Shingle Ltd. and Teal Cedar Products Ltd. as a result
of amalgamations)
Current Parties: Norske ▇▇▇▇ Canada Limited and Columbia River Shake & Shingle
Ltd. and Teal Cedar Products Ltd.
23. Chip purchase agreement made as of January 16, 1995 between West Chilcotin
Forest Products Ltd. and ▇▇▇▇▇▇▇▇ Challenge Canada Limited (which changed its
name to Norske ▇▇▇▇ Canada Limited)
- 6 -
Current Parties: Norske ▇▇▇▇ Canada Limited and West Chilcotin Forest Products
Ltd.
24. Amended and restated woodchip purchase agreement made as of April 1, 1995
between Summit Timber Company and ▇▇▇▇▇▇▇▇ Challenge Canada Limited, as amended
by woodchip purchase agreement amendment made as of the 1st day of May, 1996
between Summit Timber Company and ▇▇▇▇▇▇▇▇ Challenge Canada Limited (which
changed its name to Norske ▇▇▇▇ Canada Limited)
Current Parties: Norske ▇▇▇▇ Canada Limited and Summit Timber Company
25. De-inked pulp sales agreement with an effective day of April 1, 1999 between
Newstech Recycling Inc. and ▇▇▇▇▇▇▇▇ Challenge Canada Limited (which changed its
name to Norske ▇▇▇▇ Canada Limited)
Current Parties: Norske ▇▇▇▇ Canada Limited and Newstech Recycling Inc.
26. Log supply agreement dated December 30, 1991 among ▇▇▇▇▇▇▇▇ Challenge Canada
Limited (which is now named Norske ▇▇▇▇ Canada Limited), Crown Forest Industries
Limited and International Forest Products Limited, as assigned by Crown Forest
Industries Limited to Elk Falls Forest Industries Limited pursuant to an
assignment made the 25th day of September, 2000 among Crown Forest Industries
Limited, Elk Falls Forest Industries Limited and International Forest Products
Limited, and then assigned by Elk Falls Forest Industries Limited to Norske ▇▇▇▇
Canada Limited pursuant to an assumption and distribution agreement made the 1st
day of January, 2001 between Elk Falls Forest Industries Limited and Norske ▇▇▇▇
Canada Limited in connection with the wind-up of Elk Falls Forest Industries
Limited
Current Parties: Norske Skog Canada Limited and International Forest Products
Limited
27. Fibre products rights agreement dated November 19, 1992 between Crown Forest
Industries Limited and Riverside Forest Products Limited, as assigned by Crown
Forest Industries Limited to Elk Falls Forest Industries Limited pursuant to an
assignment made the 6th day of July, 2000 between Crown Forest Industries
Limited, Elk Falls Forest Industries Limited and Riverside Forest Products
Limited, and then assigned by Elk Falls Forest Industries Limited to Norske Skog
Canada Limited pursuant to an assignment and distribution agreement made the 1st
day of January, 2001 between Elk Falls Forest Industries Limited and Norske Skog
Canada Limited in connection with the wind-up of Elk Falls Forest Industries
Limited
Current Parties: Norske Skog Canada Limited and Riverside Forest Products
Limited
Non-Fibre Supply Material Contracts:
- 7 -
28. Forest Terminals San Diego Clerking Services Agreement dated March 1, 1995
made between Fletcher Challenge Paper Company and NPSCL for NPSCL to perform the
clerking services for all inbound, water-borne goods at the Port of San Diego,
California
Current Parties: Norske Skog Paper Company and Norsk Pacific Steamship Company
Limited
29. Long Beach Terminal Services Agreement dated March 1, 1995 for NPSCL to
perform terminal services for inbound water-borne goods at the Port of Long
Beach, California, Pier D, Berth D50, D52, D53 and D54
Current Parties: Norske Skog Paper Company and Norsk Pacific Steamship Company
Limited
30. Contract of Affreightment dated January 3, 1981 between NPSCL and Crown
Zellerbach Corporation, as assigned to Fletcher Challenge Paper Company for
NPSCL to ship cargo from British Columbia to California, as amended by
Thorseggen Amending Agreement dated March 30, 1983, Addendum to Contract of
Affreightment dated August 14, 1989 and Second Amendment to Contract of
Affreightment dated April 1, 1995
Current Parties: Norske Skog Paper Company and Norsk Pacific Steamship Company
Limited
31. Full Service Agreement dated October 26, 1999 between 3538109 Canada Inc.
("3538109") and Fletcher Challenge Canada Pulp Operations Limited for 3538109 to
provide maintenance services to the pulp mills
Current Parties: Norske Skog Canada Pulp Operations Limited and Allwin Technical
Services Inc.
32. Licence Agreement dated October 26, 1999 among 3538109, Fletcher Challenge
Canada Pulp Operations Limited and ASEA Brown Boweri Inc. for 3538109 to manage
ASEA Brown Boweri Inc.'s proprietary assets
Current Parties: Norske Skog Canada Pulp Operations Limited and Allwin Technical
Services Inc. and ASEA Brown Boweri Inc.
33. Maintenance Area Use Agreement (Crofton) dated October 26, 1999 between
3538109 and Norske Skog Canada Pulp Operations Limited for Norske Skog Canada
Pulp Operations Limited to lease or licence certain portions of buildings within
the Crofton pulp mill
Current Parties: Norske Skog Canada Pulp Operations Limited and Allwin Technical
Services Inc.
- 8 -
34. Maintenance Area Use Agreement (Elk Falls) dated October 26, 1999 between
3538109 and Norske Skog Canada Pulp Operations Limited for Norske Skog Canada
Pulp Operations Limited to lease or licence certain portions of buildings within
the Elk Falls pulp mill
Current Parties: Norske Skog Canada Pulp Operations Limited and Allwin Technical
Services Inc.
35. PCC Supply Agreement dated October 14,1997 between Specialty Minerals Inc.
and Fletcher Challenge Canada Limited for the purchase of precipitated calcium
carbonate for paper filling and coating applications
Current Parties: Specialty Minerals Inc. and Norske Skog Canada Limited
36. Chip Barge Transportation Contract dated May 31, 1979, between Crown
Zellerbach Canada Limited, as assigned to Fletcher Challenge Canada Limited, and
Norsk Pacific Steamship Company Limited ("NPSCL") to supply tugs and barges to
provide transportation and to receive, carry and deliver wood chips, sawdust and
hog fuel from mills in British Columbia to consuming pulp mills as requested by
Crown, as amended by First Amendment to Chip Barge Transportation Contract dated
May 31, 1994
Current Parties: Norske Skog Canada Limited and Norsk Pacific Steamship Company
Limited
37. Switching and Delivery Agreement dated March 15, 2000 between Fletcher
Challenge Canada Limited and Canadian Pacific Railway Company and Soo Line
Railway Company (together, the "Railway") for the Railway to provide switching
and delivery services to Norske Skog Canada Limited
Current Parties: Norske Skog Canada Limited and Canadian Pacific Railway Company
and Soo Line Railway Company
38. Electricity Supply Agreement (Elk Falls) dated April 1, 2001 between British
Columbia Hydro and Power Authority and Norske Skog Canada Limited for the supply
of electricity to Norske Skog Canada Limited at point of delivery near Duncan
Bay, B.C. from April 1, 2001 for a period of one year.
Current Parties: British Columbia Hydro and Power Authority and Norske Skog
Canada Limited
39. Electricity Supply Agreement (Crofton) dated April 1, 2001 between British
Columbia Hydro and Power Authority and Norske Skog Canada Limited for the supply
of electricity to
- 9 -
Norske Skog Canada Limited at point of delivery at Crofton, B.C. from April 1,
2001 for a period of one year
Current Parties: British Columbia Hydro and Power Authority and Norske Skog
Canada Limited
40. Share Purchase Agreement and related agreements amongst BPC Holdings
Limited, Fletcher Challenge Canada Limited, Fletcher Challenge Limited and
Fletcher Challenge Industries Canada Inc. dated September 29, 1997.
41. Share Purchase Agreement amongst Fletcher Challenge Industries Canada Inc.,
Fletcher Challenge Canada Limited, Fletcher Challenge Limited, Elk Falls Forest
Industries Limited and Fletcher Challenge Limited dated June 27, 1997, amended
January 1, 2001 by Amended Share Purchase Agreement amongst 3848051 Canada Inc.,
Norske Skog Canada Limited, Elk Falls Forest Industries Limited and Norske Skog
Industrier ASA.
Pacifica Papers Inc.
PART A
Fibre Supply Material Contracts:
1. Chip and log supply agreement dated for reference the 8th day of June, 1998
between MacMillan Bloedel Limited (now Weyerhaeuser Company Limited) and MB
Paper Limited (now Pacifica Papers Inc.)
Current Parties: Weyerhaeuser Company Limited and Pacifica Papers Inc.
2. Hog fuel supply agreement made as of the 8th day of June, 1998 between
MacMillan Bloedel Limited (now Weyerhaeuser Company Limited) and MB Paper
Limited (now Pacifica Papers Inc.)
Current Parties: Weyerhaeuser Company Limited and Pacifica Papers Inc.
3. Letter agreement dated August 24, 1999 between Pacifica Papers Inc. and Gates
Construction Inc.
Current Parties: Gates Construction Inc. and Pacifica Papers Inc.
- 10 -
4. Newstech Asset Purchase Agreement dated June 15, 1990 among Newstech
Recycling Inc., MacMillan Bloedel Limited and Fletcher Challenge Canada Limited
to provide for the rights of the parties in certain circumstances arising under
the Deinked Pulp Sales Agreement.
Current Parties: Newstech Recycling Inc., MacMillan Bloedel Limited and Fletcher
Challenge Canada Limited
5. Deinked Pulp Sales Agreement dated April 1, 1999 between Newstech Recycling
Inc. and Pacifica Papers Inc. in which Newstech agrees to sell and deliver
deinked newsprint pulp from the Newstech Mill.
Current Parties: Newstech Recycling Inc. and Pacifica Papers Inc.
Non-Fibre Supply Material Contracts:
6. Transportation Service Agreement dated December 14, 1995 among Pacific Coast
Energy Corporation (now Centra Gas B.C. Inc.) and MacMillan Bloedel Limited,
Howe Sound Pulp and Paper Limited, Fletcher Challenge Canada Limited, Western
Pulp Limited Partnership and Harmac Pacific Inc. to provide MacMillan Bloedel
with transportation service in respect of gas.
Current Parties: Pacific Coast Energy Corporation (now Centra Gas B.C. Inc.) and
MacMillan Bloedel Limited, Howe Sound Pulp and Paper Limited, Fletcher Challenge
Canada Limited, Western Pulp Limited Partnership and Harmac Pacific Inc.
7. Transportation, Terminal and Warehouse Services Agreement dated December 22,
1997 between MB Paper Limited and Fraser River Terminal Inc. for the provision
of transportation, terminal and warehouse services to MB Paper.
Current Parties: MB Paper Limited and Fraser River Terminal Inc.
8. Transportation Services Contract dated October 23, 1997 between MB Paper
Limited, Kingcome Navigation Company and Seaspan International Ltd. for Kingcome
to provide a log barging, log towing and railcar barging and related
transportation services to MB Paper.
Current Parties: MB Paper Limited, Kingcome Navigation Company and Seaspan
International Ltd.
9. Interchange/Operating Agreement dated April 11, 2000 (date on letter attached
to Agreement) among E&N Railway Company (1998) Ltd. and Alberni Specialities
(Division of Pacifica Papers) and Alberni Pacific Railway for interchange on
railway lines.
- 11 -
Current Parties: E&N Railway Company (1998) Ltd. and Alberni Specialities
(Division of Pacifica Papers) and Alberni Pacific Railway
10. Barge Transportation Rate Agreement dated August 31, 2000 between Seaspan
International Ltd. and Pacifica Papers Inc. confirming the towing rates between
Powell River and various terminals on an "as required" basis.
Current Parties: Seaspan International Ltd. and Pacifica Papers Inc.
11. Canadian Pacific Railway Confidential Contract (CPRS 129829) dated September
1, 1998 between Canadian Pacific Railway and Pacifica Papers Co. Ltd.
Partnership for rail transportation service for shipments for Pacifica.
Current Parties: Canadian Pacific Railway and Pacifica Papers Co. Ltd.
Partnership
12. Confidential Contract CPRS 133433 dated July 15, 1999 between Canadian
Pacific Railway and Pacifica Papers Co. Ltd. Partnership for rail transportation
service.
Current Parties: Canadian Pacific Railway and Pacifica Papers Co. Ltd.
Partnership
13. Power Purchase Agreement between Pacifica Papers Inc. and Powell River
Energy Inc. dated January 31, 2001.
Current Parties: Pacifica Papers Inc. and Powell River Energy Inc.
14. Shared Facilities Agreement between Pacifica Pacifica Papers Inc. and Powell
River Energy Inc. dated January 30, 2001.
Current Parties: Pacifica Papers Inc. and Powell River Energy Inc.
PART B
Non-Fibre Supply Material Contracts:
15. Partnering Agreement dated September 1, 1995 between MacMillan Bloedel
Limited and Anglo-American Clays Corporation for the supply of clay products to
the Port Alberni and Powell River Mills.
Current Parties: MacMillan Bloedel Limited and Anglo-American Clays Corporation
- 12 -
16. Electricity Supply Agreement dated June 1, 1998 between British Columbia
Hydro and Power Authority and Pacific Papers Inc. for the supply of electricity
to the Port Alberni Mill.
Current Parties: British Columbia Hydro and Power Authority and Pacific Papers
Inc.
17. Electricity Supply Agreement dated June 1, 1998 between British Columbia
Hydro and Power Authority and Pacifica Papers Inc. for the supply of electricity
to the Powell River Mill.
Current Parties: British Columbia Hydro and Power Authority and Pacifica Papers
Inc.
18. Guaranty dated January 18, 2001 between Pacifica Papers Inc. and Enron North
America Corp. in the amount of $20 million in favour of Pacifica.
Current Parties: Pacifica Papers Inc. and Enron North America Corp.
SCHEDULE H
OTHER SECURED OBLIGATIONS
[SEE REFERENCE IN SECTION 6.2]
US Dollar to Canadian Dollar foreign exchange contracts between Norske Skog
Canada Sales Inc. and RBC existing as of the date of this Agreement in an
aggregate notional amount of US $155,000,000.
US Dollar to Japanese yen foreign exchange contracts between Norske Skog Canada
Sales Inc. and RBC existing as of the date of this Agreement in an aggregate
notional amount of 143,000,000 Japanese yen.
US Dollar collar option agreements between Norske Skog Canada Sales Inc. and RBC
existing as of the date of this Agreement in an aggregate notional amount of US
$45,000,000.
US Dollar to Canadian Dollar foreign exchange contracts between Norske Skog
Canada Sales Inc. and TD existing as of the date of this Agreement in an
aggregate notional amount of US $40,000,000.
US Dollar collar option agreements between Norske Skog Canada Limited and The
Bank of Nova Scotia existing as of the date of this Agreement in an aggregate
notional amount of US $12,000,000.
US Dollar to Canadian Dollar foreign exchange contracts between Norske Skog
Canada Sales Inc. and The Bank of Nova Scotia existing as of the date of this
Agreement in an aggregate notional amount of US $30,000,000.
SCHEDULE I
LIMITATIONS ON CERTAIN SUBSIDIARIES OF RESTRICTED PARTIES
[SEE REFERENCES IN SECTIONS 6.1, 10.2.6(c)]
None of 3264904 Canada Limited, Catalyst Paper Corporation (a British Columbia
company), Catalyst Paper Corporation (a CANADA BUSINESS CORPORATIONS ACT
company), Echelon Paper Corporation (a British Columbia company), Echelon Paper
Corporation (a CANADA BUSINESS CORPORATIONS ACT company), 566816 B.C. Ltd.,
1203819 Ontario Limited, Mackenzie Forest Products Limited, Crofton Pulp & Paper
Limited, Fletcher Resources Limited, 468327 B.C. Ltd., 1076899 Holdings Ltd.,
British Columbia Forest Products Limited, FCC Holdings (Philippines) Inc., NSC
Holdings (Barbados) Limited , NSC Fibre Inc., BPC Holdings Ltd. and Arizona
Newsprint Corporation shall at any time carry on any business or have any
material Property unless it first becomes a Restricted Party in accordance with
this Agreement.
SCHEDULE J
LITIGATION AND ENVIRONMENTAL MATTERS
[SEE REFERENCES IN SECTIONS 9.1.3(a), 9.1.6(a)]
A. LITIGATION
PLAINTIFF DEFENDANT NATURE STATUS
1. US Department Norske Skog Request for A subpoena has been
of Justice Canada Limited assistance with served on Norske
AntiTrust alleged anti- Skog demanding
Investigation competitive practice further
in the newsprint documentation.
industry Company believes
investigation is
complete. No
correspondence
since June 2000.
2. Avenor Inc. Norske Skog Claim for Unknown.
Canada Limited contribution or
indemnity in respect
of any judgment
International Forest
Products Limited
may obtain against
Avenor Inc. in
respect of
contaminants and
other hazardous or
toxic substances
3. International Crown Forest Contamination of Writ of Summons
Forest Products Industries Limited, Crown Forest issued and
Limited Fletcher Challenge Industries Limited Appearance entered.
Canada Limited, former Fraser Mill International Forest
Elk Falls Forest site Products Limited
Industries Limited has agreed to
and Elk Falls Pulp discontinue its
and Paper Limited action against Elk
Falls Forest
Industries Limited.
- 2 -
B. GRIEVANCES
None which meet the materiality threshold.
C. WASTE DISPOSAL AND LANDFILL
1. Refuse Permit: PR-00506 for Sec 2 & 3; Rge 10 & 11 Chemainus
Industrial Waste (Asbestos, Lime Mud, Black Liquor, Oxidation Tank
Cleanings, Electrostatic Precipitator Catch Dregs) Crofton P&P FCCL
2. Refuse Permit: PR-00507 Modified Sanitary Landfill within Millsite
Sec 5 & 6; PCL D 08-928 (Newsprint Wrapper, Newsprint Paper Cores,
Wood Plugs, Cinders, Flyash etc.) Crofton P&P FCCL *Cancelled 9 May
96*
3. Refuse Permit: PR-01602 Industrial Refuse to Landfill DL 2 & 26 (No
Original Permit & not all Amendments on File) Elk Falls P&P EFFIL
4. Refuse Permit: PR-06712 Landfill at Swallowfield Farm from Pulp/Paper
Mill Complex (Permit in Joint Name of FCCL/Denis & Joan St. Denis)
Crofton P&P FCCL **Abandoned Effective 16 Sep/96 Subject to MOE
Monitoring Requirements**
5. Refuse Permit: PR-07399 11 Hectare Landfill Secs 3 & 4 Rge
9 Chemainus Filter Plant Crofton P&P FCCL
SCHEDULE K
INTELLECTUAL PROPERTY
[SEE REFERENCE IN SECTION 9.1.5(d)]
TRADE-MARK REGISTRATIONS
NORSKE SKOG CANADA LIMITED
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
CANADIAN TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
EXPRESS Reg. Date: Reg. No.: paper o Registered
April 12, TMDA 04923
1894 o Expires April 12, 2004
(by E.B.
Eddy)
-----------------------------------------------------------------------------------------------------------------------------------
EXPRESS Reg. Date: Reg. No.: paper used for commercial o Registered
May 7, TMA511,604 printing
1999 o Expires May 7, 2014
the custom development and
manufacture of commercial
printing paper for others, and
advising others on the
selection and utilization of
commercial printing paper
-----------------------------------------------------------------------------------------------------------------------------------
ADVANCE Reg. Date: Reg. No.: paper used for commercial o Registered
April 26, TMA456,870 printing
1996 o Expires April 26, 2011
the custom development and
manufacture of commercial
printing paper for others, and
advising others on the
selection and utilization of
commercial printing paper
-----------------------------------------------------------------------------------------------------------------------------------
MARATHON October 19, 795,321 newsprint o Pursuant to agreement,
1995 mark transferred to Fort
technical consulting services James Operating Company
in the field of newsprint on November 17, 1999
-----------------------------------------------------------------------------------------------------------------------------------
- 2 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
MARATHON April 16, 1,012,300 consulting services in the o Response to Office Action
1999 field of printing and the use filed September 15, 2000
of newsprint in printing;
technical consultation
services to operators of
commercial newsprint printing
presses, namely, to minimize
press downtime, minimize
newsprint waste, and maximize
the speed of printing press
operations.
-----------------------------------------------------------------------------------------------------------------------------------
TRIAX Reg. Date: Reg. No.: pulp o Registered
Aug. 21, TMA481,248
1997 o Expires August 21, 2012
-----------------------------------------------------------------------------------------------------------------------------------
Tri-Delta Design Reg. Date: Reg. No.: pulp o Registered
Aug. 14, TMA480,569
1997 o Expires August 14, 2012
-----------------------------------------------------------------------------------------------------------------------------------
CATALYST Reg. Date: Reg. No.: paper for printing o Registered
Dec. 9, TMA436,998 directories
1994 o Expires Dec. 9, 2009
-----------------------------------------------------------------------------------------------------------------------------------
CATALYST & design Reg. Date: Reg. No.: paper for printing o Registered
Nov. 24, TMA450,829 directories
1995 o Expires Nov. 24, 2010
consulting services in the
field of directory paper
-----------------------------------------------------------------------------------------------------------------------------------
PROTOCOL V.S.O.P. Reg. Date: Reg. No.: wood pulp o Registered
Oct. 13, TMA448,912
1995 the operation of a business o Expires October 13, 2010
selling, transporting and
exporting wood pulp to others
-----------------------------------------------------------------------------------------------------------------------------------
CIRCLE & ARROW Reg. Date: Reg. No.: rough, dressed or otherwise o Registered
design June 4, TMA140,658 processed lumber, plywood,
1965 shingles, paper pulp and o Expires June 4, 2010
newsprint
-----------------------------------------------------------------------------------------------------------------------------------
- 3 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
Curved Sheets Design Reg. Date: Reg. No.: container board o Registered
December TMA452,217
22, 1995 technical consulting services o Expires December 22, 2010
in the field of container
board packaging
-----------------------------------------------------------------------------------------------------------------------------------
BRONZELINER Reg. Date: Reg. No.: container board o Registered
Jan. 5, 1996 TMA452,760
o Expires 5 January 2011
-----------------------------------------------------------------------------------------------------------------------------------
CHROMIUMLINER Reg. Date: Reg. No.: container board o Registered
Feb. 2, 1996 TMA453,483
o Expires 2 February 2011
-----------------------------------------------------------------------------------------------------------------------------------
PLATINUMLINER App Date: App. No.: container board o Filing Receipt issued
April 2, 1,098,182 April 20, 2001
2001 technical consulting services
in the field of container
board packaging
-----------------------------------------------------------------------------------------------------------------------------------
SILVERLINER Reg. Date: Reg. No.: container board o Registered
Jan. 23, TMA469,588
1997 technical consulting services o Expires Jan. 23, 2012
in the field of container
board packaging
-----------------------------------------------------------------------------------------------------------------------------------
TITANIUMLINER Reg. Date: Reg. No.: container board o Registered
Feb. 2, 1996 TMA453,484
o Expires February 2, 2011
-----------------------------------------------------------------------------------------------------------------------------------
MILLENNIA January 27, 867,651 Newsprint o Application abandoned per
1998 instructions of Marcia
Technical and consulting Mohs
services in the field of
newsprint and the use and
handling of newsprint in
printing operations
-----------------------------------------------------------------------------------------------------------------------------------
- 4 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
FC & Design Reg. Reg. No.: lumber, plywood, veneer, o Davis & Company entered
Aug. 17, TMA372,004 wood chips, particle board, as representative for
1990 wafer board, hog fuel, bark service January 17, 2001
mulch; pulp, newsprint,
kraft paper, newsprint sheets o Registration expires
... packaging equipment August 17, 2005
marine towing services,
logging services, road
maintenance services...
-----------------------------------------------------------------------------------------------------------------------------------
MARATHON & February 2, 1,003,936 Newsprint o Response to Office Action
Design 1999 filed February 8, 2000
Technical and consulting
services in the field of
newsprint
-----------------------------------------------------------------------------------------------------------------------------------
Stylized M Design March 13, TMA524,745 Newsprint o Registered
2000
Technical and consulting o Expires: March 13, 2015
services in the field of
newsprint
-----------------------------------------------------------------------------------------------------------------------------------
MILLENNIA Sept. 10, 1,028,562 Paper, paper used for o Abandoned December 11,
1999 commercial printing, paper 2000, per instructions of
for printing directories, Marcia Mohs
newsprint printing paper,
cardboard, gummed paper,
lightweight coated papers,
paper bags, kraft paper,
wrapping paper, waxed
paper, paper napkins, paper
freezer wrap, and stationery;
pulp; and container board
-----------------------------------------------------------------------------------------------------------------------------------
FORTIS Sept. 10, 1,028,561
1999
-----------------------------------------------------------------------------------------------------------------------------------
QUALIS Sept. 10, 1,028,558
1999
-----------------------------------------------------------------------------------------------------------------------------------
ACCELENT Sept. 10, 1,028,556
1999
-----------------------------------------------------------------------------------------------------------------------------------
APTIS Sept. 10, 1,028,554
1999
-----------------------------------------------------------------------------------------------------------------------------------
CENOVA Sept. 10, 1,028,553
1999
-----------------------------------------------------------------------------------------------------------------------------------
CRESSET Sept. 15, 1,029,016 advising others on the
1999 selection and utilization of
commercial printing paper;
-----------------------------------------------------------------------------------------------------------------------------------
- 5 -
----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
INTERLIANT Sept. 15, 1,029,015 technical and consulting
1999 services in the field of printing
and the use of newsprint in
printing; technical
consultation services to
operators of commercial
newsprint printing
presses, namely to minimize
newsprint waste, and maximize
the speed of printing press
operations; technical
consulting services in the field
of container board packaging;
and the operation of a
business selling, transporting,
and exporting wood pulp
to others.
-----------------------------------------------------------------------------------------------------------------------------------
U.S. TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
EXPRESS Nov. 28, 75/024863 Class 16: paper used for o registration pending
1995 commercial printing
Class 42: the custom
development and
manufacture of commercial
printing paper for others,
and advising others on the
selection and utilization
of commercial printing
paper.
-----------------------------------------------------------------------------------------------------------------------------------
- 6 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
ADVANCE Reg. Date: Reg. No.: Class 16: paper for o Registered
Dec. 17, 2,023,388 commercial printing
1996 o Affidavit of Use to be
Class 42: consulting filed between Dec. 17,
services, namely, custom 2001 and Dec. 17, 2002
developing and
manufacturing of o Expires Dec. 17, 2006
commercial printing paper
for others, and advising
others on the selection and
utilization of commercial
printing paper
-----------------------------------------------------------------------------------------------------------------------------------
MARATHON Reg. Date: 2,300,259 Class 42: technical o Registered
Dec. 14, consulting services relating
1999 to printing and the handling o Affidavit of Use to be
and distribution of printed filed between Dec. 14,
material 2004 and Dec. 14, 2005
-----------------------------------------------------------------------------------------------------------------------------------
TRIAX Reg. Date: Reg. No.: Class 1: pulp o Registered
June 9, 2,163,229
1998
------------------------------------------------------------------------------------------------------
Reg. Date: Reg. No.: Class 42: Technical o Registered
June 9, 2,163,231 consulting services in the
1998 field of pulp
-----------------------------------------------------------------------------------------------------------------------------------
Tri-Delta design Reg. Date: Reg. No.: Class 1: pulp o Registered
June 9, 2,163,230
1998
-----------------------------------------------------------------------------------------------------------------------------------
CATALYST Reg. Date: Reg. No.: Class 16: paper for printing o Registered
Sept. 12, 1,918,830 directories
1995 o Affidavit of Use to be
filed between Sept. 12,
2000 and Sept. 12, 2001
o Expires Sept. 12, 2005
-----------------------------------------------------------------------------------------------------------------------------------
- 7 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
CATALYST & design Reg. Date: Reg. No.: Class 16: paper for printing o Registered
April 8, 2,050,179 directories
1997 o Affidavit of Use to be
Class 42: consulting filed between April 8,
services in the field of 2002 and April 8, 2003
directory paper
o Expires April 8, 2007
-----------------------------------------------------------------------------------------------------------------------------------
PLATINUMLINER App. Date: App. No.: container board o PENDING
technical consulting services
in the field of container
board packaging
-----------------------------------------------------------------------------------------------------------------------------------
BRONZELINER Reg. Date: Reg. No.: Class 16: container board o Registered
June 25, 1,983,053
1996 o Affidavit of Use to be
filed between June 25,
2001 and June 25, 2002
o Expires June 25, 2006
-----------------------------------------------------------------------------------------------------------------------------------
CHROMIUMLIUM Reg. Date: Reg. No.: Class 16: container board o Registered
June 25, 1,983,054
1996 o Affidavit of Use to be
filed between June 25,
2001 and June 25, 2002
o Expires June 25, 2006
-----------------------------------------------------------------------------------------------------------------------------------
TITANIUMLINER Reg. Date: Reg. No.: Class 16: container board o Registered
May 21, 1,975,423
1996 o Affidavit of Use to be
filed between May 21, 2001
and May 21, 2002
o Expires May 21, 2006
-----------------------------------------------------------------------------------------------------------------------------------
- 8 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
Curved Sheets Design Reg. Date: Reg. No.: Class 16: container board o Registered
July 9, 1996 1,986,280
Class 42: technical o Affidavit of Use to be
consulting services in the filed between July 9, 2001
field of container board and July 9, 2002
packaging
o Expires July 9, 2006
-----------------------------------------------------------------------------------------------------------------------------------
SILVERLINER Reg. Date: Reg. No.: Class 16: container board o Registered (related
June 17, 2,071,194 application in Class 42
1997 abandoned)
o Affidavit of Use to be
filed between June 17,
2002 and June 17, 2003
o Expires June 17, 2007
-----------------------------------------------------------------------------------------------------------------------------------
FC & design Reg. Date: Reg. No.: Class 16: Newsprint paper, o Registered
Nov. 12, 1,664,078 vapour barrier plastic,
1991 plastic bags for packaging,
plastic film for wrapping,
paper bags, kraft paper,
wrapping paper, waxed
paper, paper napkins,
plastic and paper
freezer wrap, and
corrugated cardboard
containers
Class 19: plywood, veneer,
lumber
------------------------------------------------------------------------------------------------------
Reg. Date: Reg. No.: Class 1: wood pulp as a raw o Registered
Nov. 26, 1,665,579 material
1991
-----------------------------------------------------------------------------------------------------------------------------------
- 9 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
MILLENNIA February 3, 75/428,000 Class 16: newsprint o Application abandoned per
1998 instructions of Marcia
Class 42: technical and Mohs
consulting services in the
field of newsprint and the
use and handling of
newsprint in printing
operations
-----------------------------------------------------------------------------------------------------------------------------------
Stylized M Design February Reg. No.: Class 16: newsprint o Registered - Affidavit of
23, 1999 2,338,090 Use to be filed between
April 4, April 4, 2005 and April 4,
2000 2006
------------------------------------------------------------------------------------
Reg. No.: Class 42: technical and o Registered - Affidavit of
2,343,324 consulting services in the Use to be filed between
field of newsprint April 18, 2005 and
April 18, 2006
-----------------------------------------------------------------------------------------------------------------------------------
MARATHON & February 75/650,324 Class 42: technical and o Allowed - application
Design 26, 1999 consulting services in the suspended pending
field of newsprint issuance of Canadian
registration
-----------------------------------------------------------------------------------------------------------------------------------
JAPANESE TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
FC & design n/a Reg. No.: Class 09 o Davis & Company entered
2,434,235 as representative for
------------------------------------------------------ service with Japanese
Reg. No.: Class 25 Agents
2440179
------------------------------------------------------
Reg. No.: Class 34
2475146
------------------------------------------------------
Reg. No.: Class 18
2428094
------------------------------------------------------
Reg. No.: Class 07
2448312
----------------------------------------------------------------------------------------------------------------------------------
U.K. TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
- 10 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
lion head design Reg. Date: Reg. No.: Class 1: pulp o Renewed
(FC & design) August 12, 1373502
1988 o Expires August 12, 2005
------------------------------------------------------------------------------------
Reg. No.: Class 16: newsprint, plastic o Renewed
1373504 bags, plastic wrap, kraft
paper, wrapping paper, o Expires August 12, 2005
waxed paper, paper napkins,
freezer wrap, corrugated
cardboard containers,
packing tissue, paper towels,
gummed paper tapes, toilet
tissue
------------------------------------------------------------------------------------
Reg. No.: Class 19: plywood, veneer, o Renewed
1373505 lumber, particle board,
wafer board o Expires August 12, 2005
-----------------------------------------------------------------------------------------------------------------------------------
SINGAPOREAN TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
FC & design Feb. 24, 1569/94 Class 1: pulp (wood) o Registered as of filing
1994 date
o Expires Feb. 24, 2004
------------------------------------------------------------------------------------------------------
Feb. 24, 1570/94 Class 16: paper o Registered as of filing
1994 date
o Expires Feb. 24, 2004
-----------------------------------------------------------------------------------------------------------------------------------
SOUTH KOREAN TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
FC & design Reg. Date: Reg. No.: Class 24: ground wood o Registered
June 8, 315038 pulps, chemical pulps,
1995 refiner-ground pulps; o Expires June 8, 2005
phermo-mechanical
pulps, sulforous
acid pulps,kraft
pulps, isserving
pulps, synthetic
pulps, bast pulps
(sic)
-----------------------------------------------------------------------------------------------------------------------------------
- 11 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
Reg. Date: Reg. No.: Class 21: newsprint papers, o Registered
March 19, 335,485 printing papers, kraft paper,
1996 wrapping papers, coated o Expires March 19, 2006
papers, waxed papers, wet
towel of paper, napkin
papers, toilet waters, test
papers (sic)
-----------------------------------------------------------------------------------------------------------------------------------
TAIWANESE TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
FC & design Reg. Date: Reg. No.: Class 48: paper o Registered
April 16, 677903
1995 o Expires April 15, 2005
------------------------------------------------------------------------------------------------------
Reg. Date: Reg. No.: Class 61: pulp o Registered
Nov. 16, 661,697
1994 o Expires Nov. 15, 2004
-----------------------------------------------------------------------------------------------------------------------------------
MEXICAN TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
PLATINUMLINER App. Date: App. No.: Class 16: container board o examination pending
April 30, 483,023
2001 o certified copy of Canadian
application due July 15,
2001
------------------------------------------------------------------------------------------------------
App. Date: App. No.: Class 35: technical o examination pending
April 30, 483,024 consulting services in the
2001 field of container board o certified copy of Canadian
application due July 15,
2001
-----------------------------------------------------------------------------------------------------------------------------------
HONG KONG TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
FC & design Reg. Date: 432/96 Class 1: pulp o Registration expires
Feb. 24, February 24, 2015
1994
-----------------------------------------------------------------------------------------------------------------------------------
- 12 -
-----------------------------------------------------------------------------------------------------------------------------------
MARK APP. APP. NO. WARES/SERVICES STATUS
DATE
-----------------------------------------------------------------------------------------------------------------------------------
431/96 Class 16: paper, newsprint,
kraft paper, newsprint sheets,
coated papers, paper napkins,
freezer wrap, packing tissue,
paper bags, paper towels,
waxed specialty papers,
gummed tapes, toilet tissue,
corrugated papers
-----------------------------------------------------------------------------------------------------------------------------------
CHINESE TRADE-MARKS
-----------------------------------------------------------------------------------------------------------------------------------
FC & design Reg. Date: Reg. No.: Class 1: paper pulp o Registered
21 Oct. 784,240
1995 o Expires October 20, 2005
------------------------------------------------------------------------------------
Reg. No.: Class 16: paper o Registered
801,322
o Expires December 21, 2005
-----------------------------------------------------------------------------------------------------------------------------------
COPYRIGHT REGISTRATIONS
NORSKE ▇▇▇▇ CANADA LIMITED
-----------------------------------------------------------------------------------------------------------------------------------
CANADIAN COPYRIGHT REGISTRATIONS
-----------------------------------------------------------------------------------------------------------------------------------
TITLE OF WORK NATURE AUTHORS REG. REG. NO. STATUS
OF WORK DATE
-----------------------------------------------------------------------------------------------------------------------------------
CATALYST design Artistic ▇▇▇▇ ▇▇▇▇▇▇ June 444423 Copyright Registered
▇▇▇▇▇▇▇▇▇ 30/95
▇▇▇▇▇▇ ▇▇▇▇▇▇ ------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ 45666 Assignment to FCCL
▇▇▇▇▇ ▇▇▇▇▇ 30/95 Registered
▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
- 13 -
-----------------------------------------------------------------------------------------------------------------------------------
TITLE OF WORK NATURE AUTHORS REG. REG. NO. STATUS
OF WORK DATE
-----------------------------------------------------------------------------------------------------------------------------------
Curved Sheets Design Artistic ▇▇▇▇ ▇▇▇▇▇▇ July 444890 Registered
Belserene 21/95
▇▇▇▇▇▇ ▇▇▇▇▇▇ ------------------------------------------------------------------
▇▇▇▇▇▇▇▇ July 45696 Assignment to FCCL
▇▇▇▇▇ ▇▇▇▇▇ 21/95 Registered
▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------------------------
- 14 -
TRADE-▇▇▇▇ REGISTRATIONS
▇▇▇▇▇▇▇▇ CHALLENGE CANADA LIMITED
TRADE-▇▇▇▇: CATALYST
THIS SERIES OF MARKS WAS FOR CATALYST/ECHELON - PROJECT ZEN
--------------------------------------------------------------------------------------------------------
JURISDICTION APP. DATE APP. NO. STATUS
--------------------------------------------------------------------------------------------------------
Canada Sept. 10, 1999 1,028,555 o Advertised January 31, 2001
--------------------------------------------------------------------------------------------------------
Japan March 10, 023572/2000 o Application filed - examination pending
2000
Priority Date:
September 10,
1999
--------------------------------------------------------------------------------------------------------
Brazil March 10, 822528363 o Advertised for Opposition Purposes on
2000 (Class 42) July 24, 2000 - final approval not
Priority Date: --------------- expected until Summer 2002
September 10, 822528380
1999 (Class 16)
--------------------------------------------------------------------------------------------------------
Philippines March 8, 2000 4-2000-0001769 o Application filed - examination pending
Priority Date:
September 10,
1999
--------------------------------------------------------------------------------------------------------
Europe March 10, ▇▇▇▇▇▇▇▇▇▇ o Approved for publication
2000
Priority Date:
September 10,
1999
--------------------------------------------------------------------------------------------------------
- 15 -
--------------------------------------------------------------------------------------------------------
JURISDICTION APP. DATE APP. NO. STATUS
--------------------------------------------------------------------------------------------------------
Hong Kong March 7, 2000 2000/4658 o Registrations expire September 9, 2006
Priority Date: (Class 16)
September 10, Reg. 37/2001 o Certificates of Registration Received
1999 ----------------
2000/4659
(Class 42)
Reg. 38/2001
--------------------------------------------------------------------------------------------------------
China March 7, 2000 ▇▇▇▇▇▇▇▇▇▇ o Approved for registration (preliminary)
Priority Date: (Class 16) Opposition period ends July 7, 2001
September 10, ----------------
1999 2000025489
(Class 42)
--------------------------------------------------------------------------------------------------------
Malaysia March 9, 2000 2000-02696 o Filing Receipt issued March 9, 2000 -
Priority Date: (Class 16) examination pending (approx. 2-3
September 10, ---------------- years)
1999 2000-02695
(Class 42)
--------------------------------------------------------------------------------------------------------
New Zealand March 8, 2000 609778 (Class o Advertised March 30, 2001.
Priority Date: 16) Registration should issue by September
September 10, ---------------- 2001
1999 609779 (Class
35)
--------------------------------------------------------------------------------------------------------
Australia March 2, 2000 not yet available o Agent instructed on response to 2nd
Priority Date: Office Action April 3, 2001
September 10,
1999
--------------------------------------------------------------------------------------------------------
Singapore March 7, 2000 T00/04213A o Examination complete - advertised on
Priority Date: (Class 16) December 5, 2000
September 10, - registration should issue in August
1999 2001
----------------------------------------------------------------
T00/04214Z o Registered. Expires September 10,
(Class 42) 2009
--------------------------------------------------------------------------------------------------------
Netherlands Registered Reg. No.: o Registered. Expires March 9, 2010
Antilles March 9, 2000 22178
Priority Date:
September 10,
1999
--------------------------------------------------------------------------------------------------------
- 16 -
--------------------------------------------------------------------------------------------------------
JURISDICTION APP. DATE APP. NO. STATUS
--------------------------------------------------------------------------------------------------------
Chile March 10, 478,588 (Class o Application Approved - registration
2000 16) pending
Priority Date: ----------------
September 10, 478,586 (Class o Status inquiry made January 15, 2001
1999 42)
--------------------------------------------------------------------------------------------------------
Barbados March 10, P7675 (Class o advertisement pending
2000 16)
Priority Date: ---------------- o Status inquiry made January 15, 2001
September 10, P7679 (Class
1999 42)
--------------------------------------------------------------------------------------------------------
Br. Virgin May 2, 2000 Reg. 3496 o Registered June 13, 2000
Islands Registered:
June 13, ▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇
--------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ March 8, 2000 not yet available o Response to ,OA filed January 3, 2001
Priority Date:
September 10,
1999
--------------------------------------------------------------------------------------------------------
Mexico March 7, 2000 414,322 (Class o Registered (expires March 7, 2010)
Priority Date: 16)
September 10, Reg. 676,740 o Affidavit of Use due October 31, 2003
1999 ----------------
414,324 (Class
35)
--------------------------------------------------------------------------------------------------------
SCHEDULE L
EXISTING L/CS
[SEE REFERENCE IN SECTION 2.8]
BENEFICIARY REFERENCE ISSUE DATE EXPIRY AMOUNT
NUMBER DATE
The Canada Trust Co. (re 21522 27 Nov. '91 31 Mar. '02 $27,399,000.00
executive pension)
Foothill Capital 97417 12 Aug. '98 11 Aug. '01 US$1,500,000.00
Corporation California
(re Summit Timber fibre
supply contract)
Registrar Supreme Court 115993 15 May '01 14 May '02 $91,300.11
of BC (re Crofton lien
dispute)
Her Majesty the Queen in 24914 13 Apr. '92 12 Apr. '02 $100,000.00
Right of the Province of
BC (Minister of Lands &
Parks) (re waterlot leases)
▇▇▇▇▇ Fargo Bank 117340 14 Aug. '01 30 Sept. '01 US$1,692,027
Minnesota, National
Association (re bond yield
spread)
TABLE OF CONTENTS
ARTICLE I - INTERPRETATION
1.1 Defined Terms..................................................................................2
ARTICLE II - OPERATING CREDIT
2.1 Amount and Availment Options..................................................................28
2.2 Revolving Credit..............................................................................29
2.3 Use of Operating Credit.......................................................................29
2.4 Term and Repayment............................................................................29
2.5 Interest Rates and Fees.......................................................................30
2.6 Commitment Fee................................................................................31
2.8 Existing L/Cs.................................................................................31
ARTICLE III - TERM CREDIT A
3.1 Amount and Availment Options..................................................................32
3.2 Non-Revolving Credit..........................................................................32
3.3 Use of Term Credit A..........................................................................32
3.4 Term and Repayment............................................................................32
3.5 Interest Rates and Fees.......................................................................33
3.6 Commitment Fee................................................................................33
ARTICLE IV - TERM CREDIT B
4.1 Amount and Availment Options..................................................................33
4.2 Non-Revolving Credit..........................................................................34
4.3 Use of Term Credit B..........................................................................34
4.4 Term and Repayment............................................................................34
4.5 Interest Rates................................................................................34
4.6 Escrow for Advance............................................................................34
ARTICLE V - PREPAYMENTS OF CREDITS
5.1 Prepayments of Credits........................................................................35
ARTICLE VI - SECURITY AND EXCHANGE RATE FLUCTUATIONS
6.1 Security......................................................................................39
6.2 Obligations Secured by the Trustee Security...................................................41
6.3 Consent to Assignment of Contracts............................................................43
6.4 Exchange Rate Fluctuations....................................................................43
- 2 -
ARTICLE VII - DISBURSEMENT CONDITIONS
7.1 Conditions Precedent to Initial Advance.......................................................44
7.1.1 Special Distribution..........................................................................44
7.1.3 Financial Information.........................................................................44
7.1.4 Security and Other Documents..................................................................45
7.1.5 Corporate and Other Information...............................................................45
7.1.6 Opinions......................................................................................46
7.1.7 Other Matters.................................................................................46
7.1.8 Deadline for Advance..........................................................................47
7.2 Conditions Precedent to Acquisition...........................................................47
7.2.1 Acquisition of Pacifica.......................................................................47
7.2.2 Other Matters.................................................................................48
7.3 Conditions Precedent to all Advances..........................................................48
ARTICLE VIII - ADVANCES
8.1 Lenders' Obligations Relating to L/Cs and Operating Credits 1 and 2...........................49
8.2 Adjustment of Proportionate Shares for Specific Credits.......................................50
8.3 Exceptions Regarding Particular Credits.......................................................50
8.4 Evidence of Indebtedness......................................................................51
8.5 Conversions...................................................................................51
8.6 Notice of Advances and Payments...............................................................52
8.7 Prepayments and Reductions....................................................................52
8.8 Prime Rate, Base Rate, US Prime Rate and LIBOR Advances.......................................53
8.9 LIBOR Periods.................................................................................54
8.10 Termination of LIBOR Advances.................................................................54
8.11 Co-ordination of Prime Rate, Base Rate, US Prime Rate and LIBOR Advances......................55
8.12 Execution of Bankers' Acceptances.............................................................55
8.13 Sale of Bankers' Acceptances..................................................................56
8.14 Size and Maturity of Bankers' Acceptances and Rollovers.......................................56
8.15 Co-ordination of BA Advances..................................................................57
8.16 Payment of Bankers' Acceptances...............................................................58
8.17 Deemed Advance - Bankers' Acceptances.........................................................59
8.18 Waiver........................................................................................59
8.19 Degree of Care................................................................................59
8.20 Indemnity.....................................................................................59
8.21 Obligations Absolute..........................................................................59
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8.22 Shortfall on Drawdowns, Rollovers and Conversions.............................................60
8.23 Prohibited Use of L/Cs and Bankers' Acceptances...............................................60
8.24 Issuance and Maturity of L/Cs.................................................................60
8.25 Payment of L/C Fees...........................................................................61
8.26 Payment of L/Cs...............................................................................61
8.27 Deemed Advance - L/Cs.........................................................................62
8.28 Prohibited Rates of Interest..................................................................62
ARTICLE IX - REPRESENTATIONS AND WARRANTIES
9.1 Representations and Warranties................................................................63
9.1.1 Corporate Matters.............................................................................63
9.1.2 Credit Documents..............................................................................64
9.1.3 Litigation, Financial Statements Etc..........................................................65
9.1.4 Other Debt....................................................................................66
9.1.5 Property and Capital Stock....................................................................66
9.1.6 Environmental Matters.........................................................................67
9.1.7 Taxes and Withholdings........................................................................67
9.1.8 Pension Plans.................................................................................68
9.1.9 Aboriginal Claims.............................................................................69
9.1.10 Other Matters.................................................................................70
9.2 Survival of Representations and Warranties....................................................70
ARTICLE X - COVENANTS AND CONDITIONS
10.1 Financial Covenants...........................................................................70
10.2 Positive Covenants............................................................................71
10.2.1 Amalgamation Following Acquisition............................................................71
10.2.2 Payment; Operation of Business................................................................71
10.2.3 Inspection....................................................................................72
10.2.4 Insurance.....................................................................................73
10.2.5 Taxes, Encumbrances and Withholdings..........................................................73
10.2.6 Other Matters.................................................................................74
10.3 Reporting and Notice Requirements.............................................................75
10.3.1 Periodic Reports..............................................................................75
10.3.2 Requirements for Notice.......................................................................76
10.4 Ownership of the Restricted Parties...........................................................78
10.5 Negative Covenants............................................................................79
10.5.1 Financial Transactions and Encumbrances.......................................................79
10.5.2 Business and Property.........................................................................81
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10.5.3 Corporate Matters.............................................................................82
10.6 Use of Insurance Proceeds.....................................................................83
10.7 Market Value of Swaps.........................................................................84
ARTICLE XI - DEFAULT
11.1 Events of Default.............................................................................85
11.2 Acceleration and Termination of Rights........................................................87
11.3 Payment of L/Cs...............................................................................88
11.4 Remedies......................................................................................88
11.5 Saving........................................................................................88
11.6 Perform Obligations...........................................................................89
11.7 Third Parties.................................................................................89
11.8 Power of Attorney.............................................................................89
11.9 Remedies Cumulative...........................................................................89
11.10 Set-Off or Compensation.......................................................................90
ARTICLE XII - THE AGENT AND THE LENDERS
12.1 Authorization of Agent and Relationship.......................................................90
12.2 Disclaimer of Agent...........................................................................91
12.3 Failure of Lender to Fund.....................................................................91
12.4 Payments by the Borrower......................................................................93
12.5 Payments by Agent.............................................................................93
12.6 Direct Payments...............................................................................94
12.7 Administration of the Credits.................................................................95
12.8 Rights of Agent...............................................................................99
12.9 Acknowledgements, Representations and Covenants of Lenders....................................99
12.10 Collective Action of the Lenders.............................................................100
12.11 Successor Agent..............................................................................101
12.12 Provisions Operative Between Lenders and Agent Only..........................................101
ARTICLE XIII - ADDITIONAL LENDERS, SUCCESSORS AND ASSIGNS
13.1 Successors and Assigns.......................................................................102
13.2 Assignments..................................................................................103
13.3 Participations...............................................................................104
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ARTICLE XIV - MISCELLANEOUS PROVISIONS
14.1 Headings and Table of Contents...............................................................105
14.2 Accounting Terms.............................................................................105
14.3 Capitalized Terms............................................................................105
14.4 Severability.................................................................................105
14.5 Number and Gender............................................................................106
14.6 Amendment, Supplement or Waiver..............................................................106
14.7 Governing Law................................................................................106
14.8 This Agreement to Govern.....................................................................106
14.9 Permitted Encumbrances.......................................................................106
14.10 Currency.....................................................................................107
14.11 Liability of Lenders.........................................................................107
14.12 Expenses and Indemnity.......................................................................107
14.13 Environmental Indemnity......................................................................108
14.14 Manner of Payment and Taxes..................................................................109
14.15 Increased Costs etc..........................................................................110
14.16 Interest on Miscellaneous Amounts............................................................110
14.17 Currency Indemnity...........................................................................110
14.18 Address for Notice...........................................................................111
14.19 Time of the Essence..........................................................................111
14.20 Further Assurances...........................................................................111
14.21 Term of Agreement............................................................................111
14.22 Payments on Business Day.....................................................................111
14.23 Counterparts and Facsimile...................................................................112
14.24 Waiver of Jury Trial, Consequential Damages Etc..............................................112
14.25 Entire Agreement.............................................................................113
14.26 Date of Agreement............................................................................113
SCHEDULE A - NOTICE OF ADVANCE OR PAYMENT
SCHEDULE B - AGREEMENT OF NEW RESTRICTED SUBSIDIARY
SCHEDULE C - COMPLIANCE CERTIFICATE
SCHEDULE D - ASSIGNMENT AGREEMENT
SCHEDULE E - PROPORTIONATE SHARES OF LENDERS
SCHEDULE F - DETAILS OF CAPITAL STOCK, PROPERTY ETC.
SCHEDULE G - MATERIAL CONTRACTS
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SCHEDULE H - OTHER SECURED OBLIGATIONS
SCHEDULE I - LIMITATIONS ON CERTAIN SUBSIDIARIES OF RESTRICTED PARTIES
SCHEDULE J - LITIGATION AND ENVIRONMENTAL MATTERS
SCHEDULE K - INTELLECTUAL PROPERTY
SCHEDULE L - EXISTING L/Cs
THIS FIRST AMENDING AGREEMENT is made as of 30 January 2002
BETWEEN:
NORSKE ▇▇▇▇ CANADA LIMITED, NORSKE ▇▇▇▇ CANADA FINANCE LIMITED
AND THE OTHER RESTRICTED PARTIES FROM TIME TO TIME
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THE LENDERS WHO ARE PARTIES
TO THE EXISTING CREDIT AGREEMENT
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THE TORONTO-DOMINION BANK
in its capacity as Administration Agent
(the "Agent")
RECITALS:
A. The parties to this agreement are also parties to a credit agreement dated as
of 14 August 2001 (the "EXISTING CREDIT AGREEMENT").
B. Capitalized terms used in this agreement and not otherwise defined have the
meanings defined in the Existing Credit Agreement.
C. The parties have agreed to certain amendments to the Existing Credit
Agreement and are therefore entering into this agreement to amend the provisions
of the Existing Credit Agreement as agreed by the parties.
D. This agreement is being signed by the Agent on behalf of the Lenders pursuant
to the approval of the Majority Lenders.
THEREFORE, for value received, and intending to be legally bound by this
agreement, the parties agree as follows:
1. AMENDMENT TO SECTION 1.1 OF EXISTING CREDIT AGREEMENT
Section 1.1.122 of the Existing Credit Agreement is deleted and replaced by
the following:
"Total Interest Expense" means, for any particular period, without
duplication, the difference between (a) the aggregate expense incurred for
interest and equivalent costs of borrowing (taking into account the effect of
any relevant Swaps), including but not limited to (i) bankers' acceptance
fees, (ii) discounts on bankers' acceptances, (iii) the interest portion of
any capital lease, and (iv) all fees and other compensation paid to any
person that has extended credit to the Restricted Parties, but excluding any
upfront, extension and similar non-recurring fees paid to the Agent or
Lenders or paid in connection with the NSCL Notes or Pacifica Notes, in each
case whether or not actually paid (unless paid by the issuance of
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securities constituting Debt), and (b) the aggregate income earned from
interest, in the case of each of (a) and (b), calculated in accordance with
GAAP in respect of NSCL on a consolidated basis, omitting amounts that are
not attributable to Restricted Parties.
2. AMENDMENT TO SECTION 10.1.1 OF EXISTING CREDIT AGREEMENT
Section 10.1.1 of the Existing Credit Agreement is deleted and replaced by
the following:
"During the term of this Agreement, NSCL shall at all times maintain an
Interest Coverage Ratio of not less than the following:
PERIOD INTEREST COVERAGE RATIO
to 3l December 2001 2.50 to 1
from 1 January 2002 to 31 March 2002 1.50 to 1
from 1 April 2002 to 31 December 2002 1.10 to 1
from 1 January 2003 to 31 March 2003 1.75 to 1
from 1 April 2003 to 30 June 2003 2.00 to 1
from 1 July 2003 to 31 December 2003 2.50 to 1
on and after 1 January 2004 2.75 to 1"
3. AMENDMENT TO SECTION 10.1.2 OF EXISTING CREDIT AGREEMENT
Section 10.1.2 of the Existing Credit Agreement is deleted and replaced by
the following:
"During the term of this Agreement, the Funded Debt Ratio shall not at any
time exceed the following:
PERIOD FUNDED DEBT RATIO
to 31 December 2002 0.60 to 1
from 1 January 2003 to 30 June 2003 0.575 to 1
from 1 July 2003 to 31 December 2003 0.55 to 1
on and after 1 January 2004 0.50 to 1"
4. AMENDMENT TO SECTION 10.3 OF EXISTING CREDIT AGREEMENT
Section 10.3.1(d) of the Existing Credit Agreement is deleted and replaced by
the following:
"NSCL shall, as soon as practicable and in any event not later than 120 days
after the beginning of each of its fiscal years, prepare and deliver its
financial forecast for the current fiscal year and the following four fiscal
years (or five years in the case of the forecast to be delivered by 30 April
2002), which shall cover NSCL on a consolidated basis and shall include,
without limitation, a projected income statement, a projected statement of
changes in funds, estimates of capital expenditures and tax losses and
deferrals."
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5. AMENDMENT TO SECTION 13.1 OF EXISTING CREDIT AGREEMENT
The third paragraph of Section 13.1.1 of the Existing Credit Agreement is
deleted and replaced by the following:
"No assignment shall be made in respect of an aggregate Commitment of less
than $5,000,000 in respect of the Operating Credit and/or Term Credit A, or
less than US $1,000,000 in respect of Term Credit B. No assignment may result
in the Commitment of any Lender, determined as of the effective date of the
Assignment Agreement with respect to such assignment, being less than
$10,000,000, except that the Commitment of any Term Credit B Lender or the
aggregate of the Commitment of any Term Credit B Lender and its Affiliated
Funds may be not less than US $1,000,000 in respect of Term Credit B.
However, notwithstanding the other provisions in this paragraph, an affiliate
(as defined in the CANADA BUSINESS CORPORATIONS ACT) of a Lender which has
entered into or will promptly upon becoming a Lender enter into one or more
Swaps which will be Other Secured Obligations, may receive an assignment of a
Commitment of US $10,000 in respect of Term Credit B."
6. REPRESENTATIONS OF RESTRICTED PARTIES
The Restricted Parties acknowledge that this agreement is a Credit Document
and that all of their representations and warranties concerning Credit Documents
that are contained in the Existing Credit Agreement apply to this agreement and
are deemed to be repeated on their execution of this agreement as if set out in
full in this agreement. The Restricted Parties also represent that there are no
consents or other agreements required from third parties to avoid this agreement
causing a breach or default under any other agreement to which any Restricted
Party is a party.
7. WAIVER BY MAJORITY LENDERS
In connection with the change of name of Norske ▇▇▇▇ Paper Company to Norske
▇▇▇▇ Canada (USA) Inc. on 17 September 2001, the Majority Lenders hereby waive
the requirement for prior written notice in Section 10.5.3(b) of the Existing
Credit Agreement.
8. RATIFICATION AND CONFIRMATION
The Existing Credit Agreement, as amended by this agreement, remains in full
force and effect and is hereby ratified and confirmed. Without in any way
limiting the terms of the Existing Credit Agreement or the other Credit
Documents, the Restricted Parties confirm that the existing Security shall
continue to secure all of the Obligations, including but not limited to any
arising as a result of this agreement.
9. COUNTERPARTS AND FACSIMILE
This agreement may be executed in any number of counterparts, each of which
when executed and delivered shall be deemed to be an original, and such
counterparts together shall constitute one and the same agreement. The delivery
of a facsimile copy of an executed counterpart of this agreement shall be deemed
to be valid execution and delivery of this
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agreement, but the party delivering a facsimile copy shall deliver an original
copy of this agreement as soon as possible after delivering the facsimile copy.
[NOTE: SIGNATURE PAGES FOLLOW]
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IN WITNESS OF WHICH, the parties have executed this agreement.
NORSKE ▇▇▇▇ CANADA LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
By: /s/ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Finance
Chief Financial Officer and Secretary
NORSKE ▇▇▇▇ CANADA FINANCE LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Secretary
NORSKE ▇▇▇▇ CANADA PULP OPERATIONS
LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Finance
Chief Financial Officer and Secretary
ELK FALLS PULP AND PAPER LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 30 JANUARY 2002
RELATING TO NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
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NORSKE ▇▇▇▇ CANADA PULP SALES INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Finance
Chief Financial Officer and Secretary
NORSKE ▇▇▇▇ CANADA SALES INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Finance
Chief Financial Officer and Secretary
NSCL HOLDINGS INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Finance
Chief Financial Officer and Secretary
NORSKE ▇▇▇▇ CANADA (USA) INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice-President, Finance
Chief Financial Officer and Secretary
NORSKE ▇▇▇▇ CANADA (JAPAN) LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director and Auditor
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 30 JANUARY 2002
RELATING TO NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
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NORSKE ▇▇▇▇ PULP SALES (JAPAN) LTD.
By: /s/ ▇. ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Director
PACIFICA PAPERS SALES LTD.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Finance
Chief Financial Officer and Secretary
PACIFICA PAPERS SALES INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Secretary
PACIFICA PAPERS K.K.
By: /s/ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Representative Director
PACIFICA PAPERS U.S. INC.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Secretary
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 30 JANUARY 2002
RELATING TO NORSKE ▇▇▇▇ CANADA LIMITED ET AL]
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PACIFICA POPLARS LTD.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Finance
Chief Financial Officer and Secretary
PACIFICA POPLARS LTD.
By: /s/ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Secretary
NORSKECANADA, a partnership
By its Partners:
NORSKE ▇▇▇▇ CANADA LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice-President, Finance
Chief Financial Officer and
Secretary
NORSKE ▇▇▇▇ CANADA PULP
OPERATIONS LIMITED
By: /s/ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice-President, Finance
Chief Financial Officer and
Secretary
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 30 JANUARY 2002
RELATING TO NORSKE ▇▇▇▇ CANADA LIMITED ET ALL
-9-
THE TORONTO-DOMINION BANK, as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President, Loan
Syndications - Agency
[SIGNATURE PAGE FOR FIRST AMENDING AGREEMENT DATED AS OF 30 JANUARY 2002
RELATING TO NORSKE ▇▇▇▇ CANADA LIMITED ET AL]