EXHIBIT 12
THIS SECOND AMENDING AGREEMENT is dated 6 August 2003 but is made as of and
with effect from 8 May 2003
BETWEEN:
NORSKE ▇▇▇▇ CANADA LIMITED, NORSKE ▇▇▇▇ CANADA FINANCE LIMITED
AND THE OTHER RESTRICTED PARTIES FROM TIME TO TIME
- and -
THE LENDERS WHO ARE PARTIES
TO THE EXISTING CREDIT AGREEMENT
- and -
THE TORONTO-DOMINION BANK
in its capacity as Administration Agent
(the "AGENT")
RECITALS:
A. The parties to this agreement are parties to a credit agreement made as of 19
July 2002 (the "ORIGINAL CREDIT AGREEMENT").
B. The Original Credit Agreement was amended by the parties thereto pursuant to
an amending agreement (the "FIRST AMENDING AGREEMENT") made as of 8 May 2003
(the Original Credit Agreement as amended by the First Amending Agreement is
herein called the "EXISTING CREDIT AGREEMENT").
C. Capitalized terms used in this agreement and not otherwise defined have the
meanings defined in the Existing Credit Agreement.
D. The Agent and the Restricted Parties have agreed to amend Schedule L (Form of
Repricing Agreement) of the Existing Credit Agreement as of and with effect from
8 May 2003 for the sole purpose of curing defects in Section 5(d) thereof in
order to correctly reflect the intention and agreement of the Lenders and
Restricted Parties that the phrase "Unpaid Amounts" in the third and fourth
sentences of Section 5(d) should be "unpaid amounts".
E. The Agent and the Restricted Parties also have agreed to amend Section
7.7.2(e) of the Existing Credit Agreement for the sole purpose of curing a
defect and ambiguity therein.
F. This agreement is being signed by the Agent on behalf of the Lenders pursuant
to Section 9.7.4 of the Existing Credit Agreement.
THEREFORE, for value received, and intending to be legally bound by this
agreement, the parties agree as follows:
1. AMENDMENT TO SCHEDULE L OF EXISTING CREDIT AGREEMENT
Schedule L of the Existing Credit Agreement is deleted and replaced by
Schedule L attached to this agreement.
2. AMENDMENT TO SECTION 7.7.2(E)
Section 7.7.2(e) of the Existing Credit Agreement is deleted and replaced
by the following:
"the amount, as determined under the 1999 Indenture, the 2001
Indenture or any Similar Indenture, of any other obligations that have
been classified as being incurred under clauses (i) or (ix) of the
definitions of "Permitted Indebtedness" or "Permitted Debt" in those
indentures"
3. CONDITIONS PRECEDENT
The obligations of the Lenders under this agreement are subject to the
Agent receiving opinions of counsel to the Restricted Parties concerning the
authorization, execution and enforceability of this agreement, all in form and
substance satisfactory to the Agent.
4. 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.
5. 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 Security shall continue to
secure the Obligations and the Other Secured Obligations, including but not
limited to any arising as a result of this agreement.
6. 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 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.
[Signature pages follow]
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IN WITNESS OF WHICH, the parties have executed this agreement.
NORSKE ▇▇▇▇ CANADA LIMITED
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
By:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporate Secretary and
Legal Counsel
NORSKE ▇▇▇▇ CANADA FINANCE LIMITED
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
ELK FALLS PULP AND PAPER LIMITED
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
[signature page for Second Amending Agreement dated 6 August 2003 but made as of
and with effect from 8 May 2003 relating to Norske ▇▇▇▇ Canada Limited et al]
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NORSKE ▇▇▇▇ CANADA LIMITED
AS MANAGING PARTNER FOR AND ON BEHALF
OF NORSKECANADA
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
By:
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporate Secretary and
Legal Counsel
NORSKE ▇▇▇▇ CANADA PULP
OPERATIONS LIMITED
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
NORSKE ▇▇▇▇ CANADA SALES INC.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
NSCL HOLDINGS INC.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
NORSKE ▇▇▇▇ CANADA (USA) INC.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
[signature page for Second Amending Agreement dated 6 August 2003 but made as of
and with effect from 8 May 2003 relating to Norske ▇▇▇▇ Canada Limited et al]
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NORSKE ▇▇▇▇ CANADA (JAPAN) LTD.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Director
NORSKE ▇▇▇▇ CANADA PULP SALES INC.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
PACIFICA PAPERS SALES LTD.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
PACIFICA PAPERS SALES INC.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
PACIFICA POPLARS LTD.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
President
PACIFICA POPLARS INC.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
PACIFICA PAPERS US INC.
By:
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Treasurer
[signature page for Second Amending Agreement dated 6 August 2003 but made as of
and with effect from 8 May 2003 relating to Norske ▇▇▇▇ Canada Limited et al]
-▇-
▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ BANK, as Agent.
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President, Loan Syndications -
Agency
[signature page for Second Amending Agreement dated 6 August 2003 but made as of
and with effect from 8 May 2003 relating to Norske ▇▇▇▇ Canada Limited et al]
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SCHEDULE L
FORM OF REPRICING AGREEMENT
[Note: see attached]
AGGREGATE REPRICING AGREEMENT
This Agreement is made as of the [ ] day of May, 2003
BETWEEN NORSKE ▇▇▇▇ CANADA FINANCE LIMITED
("NSCFL")
AND [NOTE: IDENTIFY LENDERS / AFFILIATES AS PARTIES HERE AND ON SIGNATURE
PAGES AS REQUIRED]
AND ANY OTHER PARTY WHO HAS SIGNED AN AGREEMENT PURSUANT TO SECTION
10(C) HEREOF
AND ROYAL BANK OF CANADA
as "Group Valuation Agent"
WHEREAS NSCFL and the Hedging Parties or their affiliates are party to a credit
agreement dated as of July 19, 2002 (as amended, supplemented, restated or
replaced from time to time, the "Credit Agreement");
AND WHEREAS the terms and conditions of the Credit Agreement permit NSCFL to
enter into Hedging Transactions with one or more of the Hedging Parties;
AND WHEREAS the Credit Agreement requires that Hedging Parties be parties to
this Aggregate Repricing Agreement if they enter into Special Derivatives with
NSCFL and permits, but does not require, Hedging Parties to be parties if they
are only entering into Hedging Transactions that are not Special Derivatives;
AND WHEREAS NSCFL has agreed to the repricing arrangements as more fully
described herein;
AND WHEREAS the terms and conditions of each ISDA Agreement may permit NSCFL to
reprice, terminate or transfer Hedging Transactions in accordance with the
repricing arrangements set forth in such ISDA Agreement;
AND WHEREAS the parties hereto agree that the Group Valuation Agent will perform
certain calculations and reporting on behalf of the Hedging Parties;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual
representations, warranties and covenants contained herein and other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by each of the parties), the parties hereto agree as follows:
1. DEFINED TERMS AND INTERPRETATION
(a) Hedging Transactions and Hedging Parties. Unless otherwise expressly
indicated in this Aggregate Repricing Agreement, all references to Hedging
Transactions and Hedging Parties apply to all Hedging Transactions and Hedging
Parties, whether or not the relevant Hedging Parties are parties hereto. While
Hedging Parties who are not parties hereto may agree in the Credit Agreement to
specific terms of this Aggregate Repricing Agreement that are incorporated by
reference in the Credit Agreement, they are not bound by this Aggregate
Repricing Agreement.
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(b) Calculation. The purpose of this Aggregate Repricing Agreement is, in part,
to address amounts payable by NSCFL to Hedging Parties in respect of Hedging
Transactions, i.e. amounts by which NSCFL is "out of the money." Amounts payable
by NSCFL shall be expressed as positive numbers in this Aggregate Repricing
Agreement, while amounts payable by Hedging Parties to NSCFL (i.e. where NSCFL
is "in the money") shall be expressed as negative numbers. Negative numbers
shall be netted against positive numbers in determining aggregate amounts owing
by NSCFL to individual Hedging Parties in respect of multiple Hedging
Transactions (any aggregate amount being expressed as a negative number if NSCFL
is "in the money" on an aggregate basis with an individual Hedging Party) and in
determining aggregate amounts owing by NSCFL to all Hedging Parties. For
example, in calculating the Hedging Transaction Exposure for a Hedging Party, if
it was party to two Hedging Transactions and NSCFL owed CAD 5,100,000 in respect
of one Hedging Transaction and was owed CAD 2,700,000 in respect of the other,
the Hedging Transaction Exposure would be CAD 5,100,000 minus CAD 2,700,000 or
CAD 2,400,000. If another Hedging Party was a party to one Hedging Transaction
and owed NSCFL CAD 1,300,000 in respect of that Hedging Transaction, its Hedging
Transaction Exposure would be negative CAD 1,300,000. If there were only those
two Hedging Parties, the Aggregate Hedging Transaction Exposure would be CAD
2,400,000 minus CAD 1,300,000 or CAD 1,100,000 and the Aggregate Positive
Hedging Transaction Exposure would be CAD 2,400,000.
(c) Defined Terms. All capitalized terms used herein and not otherwise defined
shall have the meaning ascribed to them in the ISDA Agreement. In addition,
"Administration Agent" means the "Agent" under the Credit Agreement.
"Aggregate Hedging Transaction Exposure" means, as of any Valuation Date,
the net amount calculated in accordance with Section 1(b) above by
aggregating all Hedging Parties' Hedging Transaction Exposures.
"Aggregate Positive Hedging Transaction Exposure" means, as of any
Valuation Date, the sum of all Positive Hedging Transaction Exposures under
each ISDA Agreement.
"Aggregate Positive Special Derivative Exposure" means, as of any Valuation
Date, the sum of all Positive Special Derivative Exposures.
"Aggregate Special Derivative Exposure" means as of any Valuation Date, the
net amount calculated in accordance with Section 1(b) above by aggregating
all Hedging Parties' Special Derivative Exposures.
"Excess Credit Agreement Exposure Amount" means the amount, as determined
by the Administration Agent pursuant to Section 7.7.2 of the Credit
Agreement, by which the Aggregate Hedging Transaction Exposure needs to be
reduced in order to satisfy the requirements under Section 7.7.2 of the
Credit Agreement.
"Excess Hedging Transaction Exposure" means (subject to Section 5(e) below)
the Aggregate Hedging Transaction Exposure minus CAD 135,000,000.
"Excess Special Derivative Exposure" means the Aggregate Special Derivative
Exposure minus the Permitted Special Derivative Exposure plus CAD
15,000,000.
"Floating Rate Transaction" means any interest rate swap Hedging
Transaction under which the obligation of NSCFL is to pay a floating
interest rate.
"Hedging Party" means each person that enters into a Hedging Transaction
with NSCFL.
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"Hedging Transaction" means any transaction entered into by NSCFL that is
an "Other Secured Obligation" as defined in Section 1.1.79 of the Credit
Agreement, and, for greater certainty, includes without limitation all
Special Derivatives.
"Hedging Transaction Exposure" means, with respect to a Hedging Party on
any Valuation Date, the estimated net amount that would be payable to or by
that Hedging Party pursuant to Section 6(e)(ii)(2)(A) of an ISDA Agreement
to which it is a party as if such ISDA Agreement and all Hedging
Transactions thereunder were being terminated; provided that, in estimating
the amount that would be payable, the Group Valuation Agent shall use its
estimates at mid-market of the amounts that would be paid for Replacement
Transactions (as defined within the definition of "Market Quotation" in the
ISDA Agreement) in respect of all Hedging Transactions. In addition, if any
Hedging Transaction is terminated other than as required by this Aggregate
Repricing Agreement, it shall be considered not to have been terminated for
the purposes of calculating the Hedging Transaction Exposure until any
amount payable by NSCFL to the Hedging Party as a result of the termination
has been paid.
"ISDA Agreement" means the 1992 ISDA Master Agreement entered into between
the relevant Hedging Party and NSCFL in respect of one or more Hedging
Transactions, except that, for the purposes of this Aggregate Repricing
Agreement, any Hedging Transaction shall be deemed to be governed by the
1992 ISDA Master Agreement in the form attached hereto if the relevant
Hedging Party has not entered into a 1992 ISDA Master Agreement and to the
extent that there is a relevant difference between the 1992 ISDA Master
Agreement entered into and the form attached hereto.
"Oil and Gas Transaction" means any Hedging Transaction under which the
obligations of the parties are derived from the price of oil or natural
gas.
"Permitted Special Derivative Exposure" means (subject to Sections 5(e) and
6(b) below), as of any Valuation Date, an amount determined by the
following formula:
CAD 135,000,000 - (an aggregate amount determined by adding the
amounts calculated by multiplying the notional amount of each Special
Derivative outstanding on such Valuation Date, subject to the
adjustments referred to immediately below, by the volatility factor
for that type of Special Derivative established in accordance with the
attached Schedule A and Section 6(b) below)
For the purpose of the foregoing formula, the notional amount shall be the
notional amount specified in the terms of the relevant Special Derivative,
converted to Canadian dollars if necessary using the Group Valuation
Agent's mid rate (i.e. the average of the Group Valuation Agent's spot
buying and selling rates) at the relevant time. If the notional amount is
expressed in units of a commodity rather than in currency, the notional
amount shall be determined by multiplying the notional amount expressed in
units by the fixed price per unit to be paid to or received by NSCFL for
the commodity under the relevant Special Derivative. In addition, in
determining the notional amount of Special Derivatives for the purpose of
the foregoing formula:
(A) the Group Valuation Agent shall net commodity purchase Special
Derivatives entered into by NSCFL against commodity sale Special
Derivatives entered into by NSCFL (whether or not with the same
Hedging Party), where (a) the commodities that are the subject of
the relevant Special Derivatives are determined by the Group
Valuation Agent to be the same in all material respects and (b)
either (i) the settlement dates of both the commodity sale
Special Derivatives and the commodity purchase Special
Derivatives to
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be netted are at least 45 days after the Valuation Date or (ii)
the settlement dates of the commodity sale Special Derivatives
and the commodity purchase Special Derivatives to be netted are
within five Local Business Days of each other, and the Group
Valuation Agent shall apply the volatility factor to the net
notional amount and include only the resulting amount in the
foregoing formula; and
(B) if NSCFL has entered into other Special Derivatives that do not
fall within item (A) above, but relate to commodities of the same
type (each of Oil and Gas Transactions, Pulp and Paper
Transactions, and other types established under section 6(b)
below being deemed to be the same type), the Group Valuation
Agent shall add the notional amounts of those Special Derivatives
of each type in which NSCFL's role is seller and those in which
its role is buyer and shall not apply the volatility factor to,
or include in the foregoing formula, those Special Derivatives of
each type having the smaller sum of notional amounts. For
example, if the aggregate notional amount of Pulp and Paper
Transactions that do not fall within item (A) above where NSCFL
is seller is smaller than the aggregate notional amount of those
Pulp and Paper Transactions where NSCFL is buyer, and the
aggregate notional amount of Oil and Gas Transactions that do not
fall within item (A) above where NSCFL is buyer is smaller than
the aggregate notional amount of those Oil and Gas Transactions
where NSCFL is seller, the Group Valuation Agent shall not apply
the respective volatility factors to, or include in the foregoing
formula, the Pulp and Paper Transactions that do not fall within
item (A) above where NSCFL is seller or the Oil and Gas
Transactions that do not fall within item (A) above where NSCFL
is buyer.
"Positive Hedging Transaction Exposure" means, as of any Valuation Date,
the amount that would be payable, if any, to a Hedging Party (but not by a
Hedging Party) as a result of the calculation of the Hedging Transaction
Exposure of such Hedging Party.
"Positive Special Derivative Exposure" means, as of any Valuation Date, the
amount that would be payable, if any, to a Hedging Party (but not by a
Hedging Party) as a result of the calculation of the Special Derivative
Exposure of such Hedging Party.
"Pro Rata Excess Credit Agreement Exposure Amount" means, in respect of a
Hedging Party, the amount determined by the following formula, rounded up
to the nearest integral multiple of CAD 100,000:
Excess Credit Agreement Exposure Amount X (the Positive Hedging
Transaction Exposure applicable to such Hedging Party / the Aggregate
Positive Hedging Transaction Exposure)
"Pro Rata Hedging Transaction Exposure Reduction Amount" means, in respect
of a Hedging Party, the amount determined by the following formula, rounded
up to the nearest integral multiple of CAD 100,000:
Excess Hedging Transaction Exposure X (the Positive Hedging
Transaction Exposure applicable to such Hedging Party / the Aggregate
Positive Hedging Transaction Exposure)
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"Pro Rata Special Derivative Exposure Reduction Amount" means, in respect
of a Hedging Party the amount determined by the following formula, rounded
up to the nearest integral multiple of CAD 100,000:
Excess Special Derivative Exposure X (the Positive Special Derivative
Exposure applicable to such Hedging Party / the Aggregate Positive
Special Derivative Exposure)
"Pulp and Paper Transaction" means any Hedging Transaction under which the
obligations of the parties are derived from the price of pulp or paper.
"Special Derivative" means a Hedging Transaction described in Sections
1.1.79(c), 1.1.79(d) and 1.1.79(e) of the Credit Agreement and entered into
by NSCFL, and "Special Derivatives" means all such Hedging Transactions.
"Special Derivative Exposure" means, with respect to a Hedging Party on any
Valuation Date, the estimated net amount that would be payable to or by
that Hedging Party pursuant to Section 6(e)(ii)(2)(A) of the ISDA Agreement
as if such ISDA Agreement and all Special Derivatives thereunder (but no
other Hedging Transactions) were being terminated; provided that, in
estimating such amount that would be payable, the Group Valuation Agent
shall use its estimates at mid-market of the amounts that would be paid for
Replacement Transactions in respect of all Special Derivatives. In
addition, if any Special Derivative is terminated other than as required by
this Aggregate Repricing Agreement, it shall be considered not to have been
terminated for the purposes of calculating the Special Derivative Exposure
until any amount payable by NSCFL to the Hedging Party as a result of the
termination has been paid.
"Valuation Date" means daily beginning on * May 2003 except that, if the
then-current Aggregate Hedging Transaction Exposure and Aggregate Special
Derivative Exposure are low in comparison to the maximum amounts permitted
herein, the Group Valuation Agent may from time to time establish the
Valuation Date as occurring not less frequently than monthly.
(d) Interpretation. In the event of any inconsistency between the provisions of
this Aggregate Repricing Agreement and any ISDA Agreement the terms of this
Aggregate Repricing Agreement will prevail.
2. EXPOSURE REDUCTION PAYMENT AND AMENDMENTS
(a) Right to Demand Pro Rata Exposure Reduction Amount. The Group Valuation
Agent will, promptly following (A) a Valuation Date on which the Aggregate
Hedging Transaction Exposure is greater than or equal to CAD 150,000,000 or (B)
a Valuation Date on which the Aggregate Special Derivative Exposure is greater
than the Permitted Special Derivative Exposure or (C) its receipt of a notice
from the Administration Agent that there is an Excess Credit Agreement Exposure
Amount, notify NSCFL of the Pro Rata Hedging Transaction Exposure Reduction
Amount, the Pro Rata Special Derivative Exposure Reduction Amount, or the Pro
Rata Excess Credit Agreement Exposure Amount, in each case, as applicable to
each Hedging Party. The Group Valuation Agent agrees to promptly notify the
Hedging Parties of any such notification to NSCFL.
(b) Election. Within three (3) Local Business Days of receiving the notice
described in Section 2(a), NSCFL will consult with each Hedging Party having a
Pro Rata Hedging Transaction Exposure Reduction Amount, Pro Rata Special
Derivative Exposure Reduction Amount, or Pro Rata Excess Credit Agreement
Exposure Amount, as applicable (taking into account any reduction of up to CAD
1,000,000 referred to below), and determine whether it will (A) terminate
Hedging Transactions with the Hedging
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Party, (B) reprice certain Hedging Transactions with the Hedging Party on the
basis described in Section 2(d), and/or (C) transfer NSCFL's obligations in
respect of Hedging Transactions to a third party acceptable to the Hedging Party
in its sole discretion that will assume NSCFL's obligations. Such actions shall
be taken so that the Hedging Transaction Exposure or the Special Derivative
Exposure, as applicable, with respect to such Hedging Party is reduced by an
amount at least equal to the Pro Rata Hedging Transaction Exposure Reduction
Amount and the Pro Rata Special Derivative Exposure Reduction Amount,
respectively, applicable to such party or, if the notice under Section 2(a)
relates to an Excess Credit Agreement Exposure Amount, so that the Hedging
Transaction Exposure is reduced by an amount equal to or greater than the Pro
Rata Excess Credit Agreement Exposure Amount. However, the Hedging Transaction
Exposure or the Special Derivative Exposure, as applicable, with respect to any
particular Hedging Party may be reduced by up to CAD 1,000,000 less than the
amount required by the preceding sentence if the Excess Credit Agreement
Exposure Amount, the Excess Hedging Transaction Exposure or the Excess Special
Derivative Exposure, as applicable, is entirely eliminated as a result of
reductions with other Hedging Parties being greater than the required minimums.
If NSCFL chooses to terminate or transfer Hedging Transactions, it will, after
consultation with the applicable Hedging Party, provide the Hedging Party with a
list of those Hedging Transactions that will be terminated and/or transferred.
Any amounts payable as a result of the termination of Hedging Transactions will
be calculated in accordance with the Loss method of calculation and payments
shall be made in accordance with the Second Method. For that purpose, references
to the Defaulting Party and Non-Defaulting Party will be deemed to be references
to NSCFL and the applicable Hedging Party, respectively.
(c) Proposal. Within one (1) Local Business Day of finalizing NSCFL's election
under Section 2(b), if NSCFL has decided to reprice Hedging Transactions with a
Hedging Party, such Hedging Party will make a proposal to NSCFL (a "Proposal"),
with a copy to the Group Valuation Agent, outlining the amendments to an
existing Hedging Transaction or Hedging Transactions in accordance with Section
2(d) below, which Proposal shall be drafted based on the consultation with NSCFL
in Section 2(b) above.
(d) Content of Proposal. The Proposal will provide for the payment of the Pro
Rata Hedging Transaction Exposure Reduction Amount, the Pro Rata Special
Derivative Exposure Reduction Amount or the Pro Rata Excess Credit Agreement
Exposure Amount, as applicable, by NSCFL to that Hedging Party (less amounts
paid to that Hedging Party as a result of termination of Hedging Transactions,
less reductions resulting from the transfer of Hedging Transactions and subject
to the adjustments of up to CAD 1,000,000 permitted under Section 2(b) above)
and will identify the Hedging Transaction or Hedging Transactions to be amended
and the proposed amendments. Subject to amounts paid and reductions as a result
of termination or transfer of Hedging Transactions and subject to the
adjustments permitted under Section 2(b) above, any amendments (A) will be
variations of the applicable reference rates effective from the date that
payment of each Pro Rata Hedging Transaction Exposure Reduction Amount, each Pro
Rata Special Derivative Exposure Reduction Amount or each Pro Rata Excess Credit
Agreement Exposure Amount, as applicable, is received by that Hedging Party, (B)
are to reflect current market and banking practices, (C) if applicable, are to
create a portfolio of Hedging Transactions between NSCFL and such Hedging Party
that results in a Hedging Transaction Exposure that is equal to the Hedging
Transaction Exposure as it existed prior to the payment of the Pro Rata Hedging
Transaction Exposure Reduction Amount minus the Pro Rata Hedging Transaction
Exposure Reduction Amount, (D) if applicable, are to create a portfolio of
Special Derivatives between NSCFL and such Hedging Party that results in a
Special Derivative Exposure that is equal to the Special Derivative Exposure as
it existed prior to the payment of the Pro Rata Special Derivative Exposure
Reduction Amount minus the Pro Rata Special Derivative Exposure Reduction
Amount, (E) if applicable, are to create a portfolio of Hedging Transactions
between NSCFL and such Hedging Party that results in a Hedging Transaction
Exposure that is equal to the Hedging Transaction Exposure as it existed prior
to the payment of the Pro Rata Excess Credit Agreement Exposure Amount minus the
Pro Rata Excess Credit Agreement Exposure
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Amount and (F) will be calculated using the Hedging Party's estimates at
mid-market of the amounts that would be paid for Replacement Transactions (as
defined within the definition of "Market Quotation" in the ISDA Agreement) in
respect of the relevant Hedging Transactions. Any Proposal that is in accordance
with the foregoing requirements shall be implemented by NSCFL.
(e) Timing for Payment or Transfer. If NSCFL has chosen to transfer or
terminate any Hedging Transactions, such transfer or termination and any
termination payment will be made by the fifth (5th) Local Business Day following
the receipt by NSCFL of notice under Section 2(a). If NSCFL has chosen to
reprice certain Hedging Transactions and if the Proposal is received by NSCFL by
11:00 am, Toronto time, on a Local Business Day, then the relevant payments to
the Hedging Party will be made by the later of (A) close of business on the next
Local Business Day and (B) the fifth (5th) Local Business Day following the
receipt by NSCFL of notice under Section 2(a). If the Proposal is received by
NSCFL after 11:00 Toronto time on a Local Business Day, the relevant payments
will be made by the later of (X) the second (2nd) Local Business Day thereafter
and (Y) the fifth (5th) Local Business Day following the receipt by NSCFL of
notice under Section 2(a).
(f) Non-Signatory Hedging Parties. To the extent that NSCFL is unable or does
not wish to implement the provisions of Sections 2(b) to 2(e) inclusive with any
Hedging Party that is not a party hereto, NSCFL shall entirely eliminate the
Excess Credit Agreement Exposure Amount or the Excess Hedging Transaction
Exposure, as applicable, by reductions with other Hedging Parties in excess of
the minimums required by this Aggregate Repricing Agreement.
(g) Confirmations. Upon settlement of any amendments to Hedging Transactions in
accordance with the Proposals, NSCFL and each Hedging Party will promptly
execute a replacement Confirmation evidencing each such amended Hedging
Transaction.
(h) Calculations. Unless otherwise specified, all calculations of Hedging
Transaction Exposure, Special Derivative Exposure, Excess Hedging Transaction
Exposure and Excess Special Derivative Exposure will be made by the Group
Valuation Agent in accordance with current market and banking practices. When
those calculations are to be made as of a particular day, they may be made
either at or around noon, Toronto time on such Valuation Date or as of the close
of business in the city of the Group Valuation Agent on the immediately
preceding Local Business Day. For greater certainty, the Group Valuation Agent
shall not be responsible for calculating the Excess Credit Agreement Exposure
Amount, but shall be responsible for calculating each Hedging Party's Pro Rata
Excess Credit Agreement Exposure Amount.
3. REPORTING REQUIREMENTS
(a) On the next Local Business Day after NSCFL enters into a Hedging Transaction
with a Hedging Party, NSCFL shall notify and provide the particulars of such
Hedging Transaction to the Group Valuation Agent; provided that, if NSCFL enters
into a Hedging Transaction with a Hedging Party and NSCFL has actual notice that
it will be syndicated to some or all of the other Hedging Parties, NSCFL shall
notify the Group Valuation Agent of such Hedging Transaction on the next Local
Business Day after the relevant Hedging Parties have been notified of their
portion of the Hedging Transaction. NSCFL further agrees to deliver a copy of
the relevant trade confirmation(s) to the Group Valuation Agent promptly upon
request.
(b) NSCFL shall, on the next Local Business Day, notify the Group Valuation
Agent and provide the particulars of any amendment of a Hedging Transaction that
could reasonably be expected to affect the calculation of any Hedging
Transaction Exposure or Special Derivative Exposure.
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(c) Upon request by the Group Valuation Agent, each Hedging Party agrees to
promptly provide trade details of any Hedging Transaction that may be required
by the Group Valuation Agent to facilitate its calculations under this
Agreement. Each Hedging Party agrees to promptly notify the Group Valuation
Agent of any Event of Default or Potential Event of Default known to it under
that Hedging Party's ISDA Agreement.
(d) Where either NSCFL or any Hedging Party exercises an optional early
termination provision under any Hedging Transaction or otherwise terminates or
cancels any Hedging Transaction (including voluntary unwinding of any such
Hedging Transaction), NSCFL agrees to notify and provide the particulars of such
Hedging Transaction and the termination or unwinding thereof to the Group
Valuation Agent on the next Local Business Day after such termination,
cancellation or unwinding is effective.
(e) Upon request by NSCFL, any Hedging Party or the Administration Agent, on any
Local Business Day, the Group Valuation Agent agrees to provide a statement of
its calculations hereunder for the previous Valuation Date. The Group Valuation
Agent shall also confirm, on request, that any particular Hedging Transaction
has been reported to it by NSCFL. The Group Valuation Agent shall, at the
request of any Hedging Party, advise that Hedging Party of each valuation and
calculation by the Group Valuation Agent in respect of each Hedging Transaction
between that Hedging Party and NSCFL.
(f) If the then-current Aggregate Hedging Transaction Exposure and Aggregate
Special Derivative Exposure are low in comparison to the maximum amounts
permitted herein, the Group Valuation Agent may permit NSCFL to reduce its
reporting frequency to not less frequently than once each week (in respect of
Special Derivatives) or once each month (in respect of other Hedging
Transactions), but the Group Valuation Agent may revoke any such permission at
any time. In any event, NSCFL shall report to the Group Valuation Agent at least
weekly or monthly, respectively, including by "nil" report if applicable.
(g) Each Hedging Party shall provide NSCFL by the fourth (4th) Local Business
Day of each month with a listing of its Hedging Transactions as of the end of
the preceding month and NSCFL shall provide the Group Valuation Agent by the
fifth (5th) Local Business Day of each month with copies of those listings. The
Group Valuation Agent shall, by the eighth (8th) Local Business Day of each
month provide each Hedging Party with its calculations as of the end of the
preceding month in respect of each Hedging Transaction between that Hedging
Party and NSCFL. Each Hedging Party shall promptly compare the Group Valuation
Agent's calculations with similar calculations by the Hedging Party and, if
there is any material discrepancy, shall promptly contact the Group Valuation
Agent to reconcile the discrepancy.
4. ADDITIONAL HEDGING TRANSACTIONS
NSCFL agrees that, so long as the Credit Agreement remains in effect, it
will not enter into any transaction of the kind described in Section 1.1.79 of
the Credit Agreement with any entity other than a Hedging Party under which it
agrees to provide security over its property. NSCFL may provide letters of
credit issued under the Credit Agreement to entities other than Hedging Parties
with whom it enters into transactions of the kind described in Section 1.1.79 of
the Credit Agreement.
5. EVENT OF DEFAULT AND CLOSE-OUT OF HEDGING TRANSACTIONS
(a) Hedging Transaction Exposure Amount and Excess Credit Agreement Exposure
Amount. For purposes of the ISDA Agreement between NSCFL and each Hedging
Party, an Event of Default will exist with respect to NSCFL if NSCFL fails to
make, when due, any payment in respect of the Excess Hedging Transaction
Exposure or the Excess Credit Agreement Exposure Amount required to be made by
it or to
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otherwise comply with the provisions of Section 2(b) or 2(e) above in relation
to the Excess Hedging Transaction Exposure or the Excess Credit Agreement
Exposure Amount and such failure to pay or comply continues for one (1) Local
Business Day after notice of that failure is given to NSCFL by such Hedging
Party.
(b) Special Derivative Exposure Amount. The ISDA Agreement between NSCFL and
each Hedging Party is hereby amended to provide that (i) an Additional
Termination Event will exist with NSCFL as the Affected Party and the Affected
Transactions shall be deemed to be all Special Derivatives entered into between
NSCFL and each Hedging Party if NSCFL fails to make, when due, any payment in
respect of the Excess Special Derivative Exposure required to be made by it or
to otherwise comply with the provisions of Section 2(b) or 2(e) above in
relation to the Excess Special Derivative Exposure and (ii) an Event of Default
will exist with respect to NSCFL if NSCFL fails to make, when due, any payment
in respect of the Excess Special Derivative Exposure required to be made by it
or to otherwise comply with the provisions of Section 2(b) or 2(e) above in
relation to the Excess Special Derivative Exposure, and such failure to pay or
comply continues for one Local Business Day after notice of that failure is
given to NSCFL by such Hedging Party.
(c) Immediate Terminations of Special Derivatives. The Group Valuation Agent
shall immediately notify each Hedging Party as soon as the Aggregate Special
Derivative Exposure is equal to or exceeds CAD 135,000,000 (or any lower amount
established in accordance with Section 5(e) below). If the Aggregate Special
Derivative Exposure at any time is equal to or exceeds CAD 135,000,000 (or the
lower amount), notwithstanding any provision herein to the contrary, there shall
be an automatic termination (on the date that the Group Valuation Agent
determines the Aggregate Special Derivative Exposure is equal to or exceeds CAD
135,000,000 (or the lower amount)) of those Special Derivatives necessary to
equal or exceed the Excess Special Derivative Exposure, beginning with the
Special Derivatives (regardless of the respective Hedging Parties involved) that
have the largest individual Positive Special Derivative Exposures (i.e. the
Positive Special Derivative Exposure calculated as if each Special Derivative
was the only Special Derivative entered into by a particular Hedging Party). For
purposes of such termination, an Additional Termination Event shall be deemed to
have occurred with NSCFL as the Affected Party and the Hedging Party as the
Non-Affected Party, and the Special Derivatives that are designated as being
terminated by the preceding sentence shall be deemed to be Affected
Transactions. The Loss method of calculation shall be used in determining the
amount payable and the Second Method shall apply for the purposes of Section
6(e) of the ISDA Agreement. The Group Valuation Agent shall immediately confirm
to NSCFL, each Hedging Party and the Administration Agent the identity of the
Special Derivatives that have been automatically terminated. Each Hedging Party
shall immediately notify the Group Valuation Agent, NSCFL and the Administration
Agent of the amount payable by NSCFL in respect of the automatically terminated
Special Derivatives to which it is a party, the Administration Agent shall
immediately notify NSCFL, the Group Valuation Agent and each Hedging Party as to
whether or not an advance may be made under the Credit Agreement equal to those
amounts and NSCFL shall pay those amounts not later than the second (2nd) Local
Business Day after such notice is given by the Hedging Party. If NSCFL fails to
make any payment when due as required by this Section 5(c), or if the
Administration Agent has notified NSCFL, the Group Valuation Agent and the
Hedging Parties that an advance is not available under the Credit Agreement,
then without further notice there shall be an automatic termination of all
remaining Special Derivatives effective on the date that the Administration
Agent gives notice that an advance is not available, or on the second (2nd)
Local Business Day if payment is not made, whichever is earlier. For purposes of
such termination, an Event of Default shall be deemed to have occurred with
NSCFL as the Defaulting Party. The Loss method of calculation shall be used in
determining the amount payable and the Second Method shall apply for the
purposes of Section 6(e) of the ISDA Agreement. Each Hedging Party shall
immediately notify the Group Valuation Agent, NSCFL and the Administration Agent
of the amount payable by or to NSCFL in respect of any further
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automatically terminated Special Derivatives to which it is a party. The ISDA
Agreement between NSCFL and each Hedging Party is hereby amended to incorporate
this Section 5(c).
(d) Limit on Liability Under Special Derivatives. The ISDA Agreement between
NSCFL and each Hedging Party is hereby amended to incorporate this Section 5(d).
Notwithstanding any other terms of this Aggregate Repricing Agreement but in all
other respects subject to the terms hereof, for as long as the 1999 Notes, the
2001 Notes or any Similar Notes (each as defined in the Credit Agreement) are
outstanding and do not expressly permit the incurrence of Special Derivatives,
the liability of the Restricted Parties (as defined in the Credit Agreement) in
respect of all Special Derivatives outstanding at any time with all Hedging
Parties is limited to an aggregate amount of CAD 150,000,000. The foregoing
limitation shall not, however, in any way limit the liability of the Restricted
Parties in respect of Hedging Transactions other than Special Derivatives, nor
shall it prevent the Hedging Parties from recovering interest on unpaid amounts
owing by the Restricted Parties in respect of terminated Special Derivatives,
nor shall it apply to any derivative transaction that would have been a Special
Derivative but for it not being reported to the Group Valuation Agent as
required by this Aggregate Repricing Agreement. The aggregate liability of the
Restricted Parties for the purpose of this Section 5(d) shall be calculated at
any time using the methods described in Section 5(c) in respect of all Special
Derivatives that have then been terminated and in respect of which there are
unpaid amounts outstanding, by netting amounts payable by Hedging Parties to
NSCFL against amounts payable by NSCFL to Hedging Parties, in each case under
such terminated Special Derivatives. The agreement of the Hedging Parties to
limit the liability of NSCFL is conditional upon such netting occurring. In
order to effect the netting, any net amount payable by a Hedging Party to NSCFL
(taking into account all terminated Special Derivatives between that Hedging
Party and NSCFL) shall instead be paid to the Group Valuation Agent and
distributed by it to the Hedging Parties to whom net amounts are payable by
NSCFL in respect of Special Derivatives, pro rata in accordance with the
respective net amounts payable to them. If, following such netting, the
aggregate liability of the Restricted Parties in respect of Special Derivatives
would exceed CAD 150,000,000 but for the limitation established in this Section
5(d), the excess shall be borne by the Hedging Parties to whom amounts are
payable by NSCFL in respect of Special Derivatives, pro rata in accordance with
the respective net amounts that would have been payable to them but for the
limitation.
(e) Amendment to Limit on Liability Under Special Derivatives. NSCFL may from
time to time reduce the CAD 150,000,000 limit specified in Section 5(d), and
thereafter increase it, in accordance with the following: (A) the limit shall
never be less than CAD 25,000,000 or more than CAD 150,000,000, (B) the
references to CAD 135,000,000 in the definition of "Permitted Special Derivative
Exposure" and in Section 5(c) and the reference to CAD 15,000,000 in the
definition of "Excess Special Derivative Exposure" shall each be automatically
reduced or increased by the same percentage that the CAD 150,000,000 limit
specified in Section 5(d) is reduced or increased, (C) any change in the limit
must not result in there being a positive Excess Credit Agreement Exposure
Amount or Excess Special Derivative Exposure, taking into account the changes in
(B), (D) no amendment may be made within thirty (30) days of the preceding
amendment, and (E) NSCFL shall give the Group Valuation Agent at least ten (10)
Local Business Days' notice of the proposed amendment and the Group Valuation
Agent shall promptly notify each of the Hedging Parties of the amendment. For
greater certainty, references in this Section 5(e) to particular CAD amounts
specified in other sections or definitions are to the current amounts specified
in those sections or definitions and, following any amendment pursuant to this
section, references to those amounts shall be interpreted having regard to the
previous amendment(s).
6. RESTRICTED PAYMENTS/TRANSACTIONS
(a) Restricted Payments. Upon any Early Termination Date occurring with respect
to a Hedging Transaction or any Hedging Transactions being terminated prior to
the stated maturity, in each case, if the
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Hedging Party or Hedging Parties (for the purposes of this provision, the
"Payers") are required to make a payment to NSCFL in accordance with the
settlement obligations under such Hedging Transaction(s), such payment shall be
made to NSCFL provided that immediately after such payment and termination (i)
the Aggregate Hedging Transaction Exposure does not exceed CAD 150,000,000, (ii)
the Aggregate Special Derivative Exposure does not exceed the Permitted Special
Derivative Exposure and (iii) there is no Excess Credit Agreement Exposure
Amount. The Payers, NSCFL and the Administration Agent shall consult the Group
Valuation Agent to determine if the Aggregate Hedging Transaction Exposure will
exceed CAD 150,000,000 or if the Aggregate Special Derivative Exposure will
exceed the Permitted Special Derivative Exposure or if there will be any Excess
Credit Agreement Exposure Amount. In the event that the Aggregate Hedging
Transaction Exposure will exceed CAD 150,000,000 or in the event that the
Aggregate Special Derivative Exposure will exceed the Permitted Special
Derivative Exposure or in the event that there will be any Excess Credit
Agreement Amount, in each case, immediately after such payment and termination,
NSCFL agrees that the Payers may withhold the applicable payment, and such
failure to pay will not be a default under any ISDA Agreement, until the Excess
Hedging Transaction Exposure or the Excess Special Derivative Exposure or the
Excess Credit Agreement Amount, as applicable, that would have been created if
the withheld payment had been made is reduced in accordance with this Agreement
and any payments made by NSCFL hereunder to reduce the Excess Hedging
Transaction Exposure or the Excess Special Derivative Exposure or the Excess
Credit Agreement Exposure Amount, as applicable, may be set off against amounts
owed to NSCFL by the Payers.
(b) Restricted Transactions. Each of the parties hereto agrees that it shall
not enter into any Special Derivative other than a Floating Rate Transaction, an
Oil and Gas Transaction, a Pulp and Paper Transaction or a Special Derivative of
a type previously dealt with under this Section 6(b) without giving at least ten
(10) Local Business Days' notice to the Group Valuation Agent and without
receiving the subsequent notice from the Group Valuation Agent that is referred
to below. The parties agree that, upon any such notice being given to the Group
Valuation Agent, the Group Valuation Agent and the Administration Agent, after
consulting NSCFL, shall establish a volatility factor for the additional type of
Special Derivative. The Group Valuation Agent shall then notify all parties of
the volatility factor that has been established.
7. FURNISH SPECIFIED INFORMATION
Section 4(a)(ii) of each ISDA Agreement between NSCFL and a Hedging Party
that is a party hereto is deemed to be amended to read as follows:
"(ii) any other documents specified in the Schedule, any Confirmation
or the Aggregate Repricing Agreement dated as of * May 2003 as
amended, restated or replaced from time to time, entered into between,
among others, Party B and Party A as a Hedging Party thereto; and"
8. REPRESENTATIONS AND WARRANTIES
Each party hereto represents and warrants to the other parties as follows:
(a) it has full power and authority to execute and deliver this Aggregate
Repricing Agreement and to perform and observe the provisions hereof;
(b) the execution, delivery and performance of this Aggregate Repricing
Agreement either have been or will be duly authorized by all necessary
corporate action and do not and will not
-11-
contravene any requirement of law, its charter or by-laws or any
contractual restriction or agreement binding on or affecting such
party or its assets; and
(c) this Aggregate Repricing Agreement has been duly and properly executed
and delivered by such party and constitutes and will constitute the
legal, valid and binding obligation of such party enforceable in
accordance with its terms.
9. NOTICES
Unless otherwise specified, all notices and other communications to be
given to a party hereunder shall be given to the address, facsimile (confirmed
if requested) or telephone number and to the individual or department specified
by such party on Schedule B hereto or such other address, facsimile or telephone
number as such party may hereafter specify for the purpose by notice given in
accordance with this section. Unless otherwise specified, any notice,
instruction or other communication shall be effective upon receipt if given in
accordance with this section.
10. AMENDMENTS
(a) No amendment, modification, supplement or waiver in respect of this
Aggregate Repricing Agreement will be effective unless in writing and signed by
each of the parties intended to be bound thereby.
(b) If the Credit Agreement is amended in accordance with the terms thereof, the
parties shall in good faith negotiate and enter into any amendments hereof which
are reasonably required as a result of such amendment of the Credit Agreement.
(c) Any person that is not a party hereto and is otherwise entitled to be a
party to an Other Secured Obligation (as defined in the Credit Agreement) may
become a Hedging Party hereunder and agree to be bound hereby by executing such
instrument or agreement as the Group Valuation Agent may reasonably prescribe in
order to evidence its accession hereto. Any ISDA agreement entered into between
NSCFL and such person shall have substantially the same terms and conditions as
the ISDA Agreement. In particular, each ISDA agreement shall continue to be
based on the 1992 ISDA Master Agreement notwithstanding any subsequent form of
ISDA Master Agreement being issued.
11. GROUP VALUATION AGENT
(a) The Group Valuation Agent shall have no duties or obligations other than as
expressed herein, and without limitation, the Group Valuation Agent does not
undertake, and the Hedging Parties relieve the Group Valuation Agent from, any
implied duties (including fiduciary duties) and there shall not be construed
against the Group Valuation Agent any implied covenants or terms. The Group
Valuation Agent may execute or perform, and may delegate the execution and
performance of, any of its duties hereunder through or to any of its own
employees or to a recognized dealer designated by it. References herein or in
any of the other agreements to the Group Valuation Agent shall include
references to any such employees or recognized dealers to whom the Group
Valuation Agent shall have delegated any of its duties.
(b) The Group Valuation Agent shall not be obliged to incur or subject itself to
any cost or expenditure in connection herewith unless it is first indemnified or
furnished with security by the Hedging Parties on a rateable basis, in form and
substance satisfactory to it (which may include further agreements of indemnity
or the deposit of funds or security or other suitable measures).
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(c) Neither the Group Valuation Agent nor its directors, officers, agents or
employees shall be liable to NSCFL or any Hedging Party for any action taken or
omitted to be taken by it or them under or in connection with this Aggregate
Repricing Agreement except for its or their own gross negligence or wilful
misconduct. Without limiting the generality of the foregoing, the Group
Valuation Agent (i) makes no warranty or representation to NSCFL nor any Hedging
Party (except as set out in section 8 above) and shall not be responsible to
NSCFL or any Hedging Party for the form, substance, accuracy or completeness of
this Aggregate Repricing Agreement or any other documents, information or
financial data made available to the parties hereto, or for any statements,
warranties or representations made by others in or in connection with this
Aggregate Repricing Agreement; (ii) shall not have any duty to ascertain or to
inquire as to the existence of an Event of Default or Potential Event of Default
or the performance or observance of any of the terms or conditions of this
Aggregate Repricing Agreement on the part of NSCFL or any Hedging Party; (iii)
shall not be responsible to NSCFL nor any Hedging Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Aggregate Repricing Agreement other than the representations and warranties made
herein with respect to the Group Valuation Agent; and (iv) shall incur no
liability under or in respect of this Aggregate Repricing Agreement by acting
upon any notice, consent, certificate or other instrument or writing (which may
have been sent by facsimile transmission, by telex or by hand) believed by it in
good faith to be genuine and signed or sent by the proper party or parties.
(d) With respect to Hedging Transactions between Royal Bank of Canada ("RBC")
and NSCFL, RBC has the same rights and powers under this Aggregate Repricing
Agreement as any other Hedging Party hereunder and may exercise the same as
though it were not the Group Valuation Agent and the term "Hedging Party" or
"Hedging Parties" shall, unless otherwise expressly indicated, include it in its
individual capacity. RBC and its affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with NSCFL and its affiliates or any person who may do business with or
own securities of NSCFL, all as if it were not the Group Valuation Agent, and
without any duty to account therefor to the Hedging Parties.
12. REPLACEMENT OF GROUP VALUATION AGENT
In the event that: (A) the Group Valuation Agent resigns (which resignation
shall be given in writing to the parties hereto with at least five (5) Business
Days notice); (B) the Group Valuation Agent materially breaches its duties
hereunder; or (C) NSCFL or the other Hedging Parties notify the other parties to
this Aggregate Repricing Agreement on at least five (5) Business Days notice
that they wish to replace the Group Valuation Agent, NSCFL will appoint a
replacement Group Valuation Agent who is a Hedging Party with the consent of
such successor and the consent of the remaining Hedging Parties, which consent
shall not be unreasonably withheld. The successor Group Valuation Agent shall
succeed to and become vested with all the rights, powers and duties of the Group
Valuation Agent as described herein and the retiring Group Valuation Agent shall
be discharged from its duties and obligations in its capacity as Group Valuation
Agent.
13. GOVERNING LAW AND SEVERABILITY
This Aggregate Repricing Agreement shall be construed in accordance with
and governed by the laws of the Province of British Columbia without reference
to choice of law doctrine. Wherever possible each provision of this Aggregate
Repricing Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Aggregate Repricing
Agreement shall be prohibited by or be invalid or unenforceable under such law,
such provision shall be ineffective to the extent of such prohibition,
invalidity or unenforceability without otherwise affecting the validity or
enforceability of such provision or the remaining provisions of this Aggregate
Repricing Agreement.
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14. COUNTERPARTS
This Aggregate Repricing Agreement (and any amendment hereto) may be
executed and delivered in counterparts (including by facsimile transmission),
each of which will be deemed an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Aggregate Repricing
Agreement to be duly executed by their respective authorized officers as of the
date first above written.
NORSKE ▇▇▇▇ CANADA FINANCE LIMITED ROYAL BANK OF CANADA, as a Hedging
Party and Group Valuation Agent
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
By: By:
--------------------------------- ------------------------------------
Name: Name:
Title: Title:
[NOTE: ADD OTHER SIGNATURE BLOCKS AS REQUIRED]
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SCHEDULE A
VOLATILITY FACTORS
The volatility factors for the currently contemplated types of Special
Derivatives are as follows:
Floating Rate Transactions - nil
Oil and Gas Transactions - 0.25
Pulp and Paper Transactions - 0.10
SCHEDULE B
ADDRESSES FOR NOTICE
NORSKE ▇▇▇▇ CANADA FINANCE LIMITED ROYAL BANK OF CANADA
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ BANK PLAZA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇
ATTENTION: TREASURER ATTENTION: MANAGING DIRECTOR
GLOBAL MIDDLE OFFICE
FACSIMILE NO.: ▇▇▇-▇▇▇-▇▇▇▇
TELEPHONE NO.: ▇▇▇-▇▇▇-▇▇▇▇ FACSIMILE NO.: (▇▇▇) ▇▇▇-▇▇▇▇
TELEPHONE NO.: (▇▇▇) ▇▇▇-▇▇▇▇
[NOTE: ADD ADDITIONAL ADDRESSES;
MULTIPLE CONTACTS SHOULD BE
PROVIDED IF POSSIBLE]