TABLE OF CONTENTS

 

ARTICLE 1 INTERPRETATION
1.1		Defined Terms.
1.2		Interpretation.
1.3		Other Credit Documents.
1.4		Severability.
1.5		Entire Agreement.
1.6		Waiver.
1.7		Governing Law.
1.8		Incorporation of Schedules.
1.9		Conflicts.
ARTICLE 2 CREDIT FACILITY
2.1		Credit Facility.
2.2		Available Accommodations.
2.3		Commitments and Facility Limits.
2.4		Use of Proceeds.
2.5		Repayment of Facilities.
2.6		Mandatory Repayments.
2.7		Cancellation of Undrawn Portion of Commitment.
2.8		Additional Commitment.
2.9		Standby Fee.
2.10		Agency Fee.
2.11		Evidence of Debt and Determination of Interest Rates and Fees.
2.12		Adjustment of Total Pro Rata Shares
ARTICLE 3 LOAN ADVANCES
3.1		The Advances.
3.2		Procedure for Borrowing.
3.3		Interest on Advances.
3.4		Conversions and Elections Regarding Types of Advances and Interest Rates.
3.5		Circumstances Requiring Floating Rate Pricing.
ARTICLE 4 BANKERS’ ACCEPTANCES
4.1		Acceptances and Drafts.
4.2		Procedure for BA Issuance.
4.3		Form of Drafts.

 

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4.4	Stamping of Drafts.
4.5	Purchase of Bankers’ Acceptances and BA Equivalent Notes.
4.6	Reimbursement at Contract Maturity Date.
4.7	Repayments.
4.8	Circumstances Making Bankers’ Acceptances Unavailable.
4.9	Presigned Draft Forms.
ARTICLE 5 LETTERS
5.1	Letter Commitment
5.2	Procedure for Issue.
5.3	Form of Letters.
5.4	Reimbursement of Amounts Drawn Under Letters of Credit.
5.5	Issue Fees.
5.6	Risk of Letters of Credit.
5.7	Repayments.
5.8	Indemnity
ARTICLE 6 CONDITIONS OF LENDING
6.1	Conditions Precedent to Effectiveness of this Agreement.
6.2	Conditions Precedent to initial Accommodations.
6.3	Conditions Precedent to all Accommodations.
6.4	Conditions Precedent to Initial Accommodations to Additional Borrowers.
ARTICLE 7 REPRESENTATIONS AND WARRANTIES
7.1	Representations and Warranties.
7.2	Survival of Representations and Warranties.
7.3	No Representations by Lenders.
ARTICLE 8 COVENANTS OF THE BORROWER
8.1	Affirmative Covenants.
8.2	Negative Covenants.
8.3	Financial Covenants.
ARTICLE 9 EVENTS OF DEFAULT
9.1	Events of Default.
9.2	Payment of Letters, Etc.
9.3	Expense of Lender.
9.4	Remedies Cumulative.
ARTICLE 10 PAYMENTS, COMPUTATIONS AND INDEMNITY
10.1	Timing of Payments under this Agreement, etc.
10.2	Payments on Non-Business Days.
10.3	Overdue Amounts.

 

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10.4	Application of Payments and Optional Prepayments.
10.5	Computations of Interest and Fees.
10.6	Judgment Currency.
10.7	Costs and Expenses.
10.8	Indemnity for Change in Circumstances.
10.9	Indemnity Relating to Accommodations.
10.10	Indemnity for Transactional and Environmental Liability.
10.11	Survival of Indemnities.
10.12	Taxation on Payments.
ARTICLE 11 MISCELLANEOUS
11.1	Notices, etc.
11.2	Public Announcements and Exchange of Information.
11.3	Time of the Essence.
11.4	Third Party Beneficiaries.
11.5	Enurement.
11.6	Counterparts.
11.7	Knowledge.
11.8	Assignment.
11.9	Non-Merger.
11.10	Right to Combine and Set-Off.
11.11	Certificates and Opinions.
11.12	Permitted Encumbrances.
ARTICLE 12 THE AGENT
12.1	Appointment and Authorization of Agent.
12.2	Interest Holders.
12.3	Consultation with Counsel.
12.4	Documents.
12.5	Agent as Lender.
12.6	Responsibility of Agent.
12.7	Action by Agent.
12.8	Notice of Events of Default.
12.9	Responsibility Disclaimed.
12.10	Indemnification.
12.11	Credit Decision.
12.12	Successor Agent.
12.13	Delegation by Agent.
12.14	Waivers and Amendments.
12.15	Determination by Agent Presumed to be Correct.
12.16	Remittance of Payments.
12.17	Redistribution of Payment.

 

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12.18

Distribution of Notices.

 

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REVOLVING CREDIT AGREEMENT

 

DATED as of the 19th day of November, 2004.

 

A M O N G:

 

	IPSCO INC. and IPSCO SASKATCHEWAN INC.
	(collectively, the “Canadian Borrowers”)
	- and -
	IPSCO STEEL INC., IPSCO ENTERPRISES INC., IPSCO ALABAMA LTD. and IPSCO STEEL (ALABAMA) INC.
	(collectively, the “U.S. Borrowers”)
	(the Canadian Borrowers and the U.S. Borrowers collectively, the “Borrowers”)
	- and -
	THE TORONTO-DOMINION BANK
	(as “Agent”)
	- and -
	JPMORGAN CHASE BANK, N.A.
	(as “Syndication Agent”)
	- and -
	THE TORONTO-DOMINION BANK, JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, ROYAL BANK OF CANADA, BANK OF AMERICA, N.A., BY ITS CANADA BRANCH, ABN AMRO BANK N.V., CANADA BRANCH, THE BANK OF NOVA SCOTIA, and BANK OF MONTREAL, as Canadian Lenders,
	(collectively, “Canadian Lenders”)
	- and -

 

 

	TORONTO DOMINION (TEXAS) LLC, JPMORGAN CHASE BANK, N.A., ROYAL BANK OF CANADA, ACTING THROUGH A NEW YORK BRANCH, BANK OF AMERICA, N.A., ABN AMRO BANK N.V., WELLS FARGO BANK, NATIONAL ASSOCIATION, THE BANK OF NOVA SCOTIA, BY ITS ATLANTA AGENCY, BANK OF MONTREAL, CHICAGO BRANCH and FIFTH THIRD BANK (CHICAGO)
	(collectively, “U.S. Lenders”)
	(the Canadian Lenders and the U.S. Lenders, collectively, the “Lenders”)

 

The parties agree as follows:

 

ARTICLE 1
INTERPRETATION

 

1.1                                Defined Terms.

 

In this Agreement, the following terms have the following meanings:

 

“ Accommodation ” means: (i) an Advance made by the Lenders or any one or more of them on the occasion of any Borrowing; (ii) a Bankers’ Acceptance stamped or a BA Equivalent Note purchased by the Canadian Lenders or any one or more of them on the occasion of any BA Issuance; and (iii) the issue of a Letter by the Lenders or any one or more of them on the occasion of any Issue.

 

“ Accommodation Notice ” means a Borrowing Notice, a BA Issuance Notice or an Issue Notice.

 

“ Advances ” means advances made by the Lenders or any one or more of them under this Agreement and “ Advance ” means any one of such advances.  Advances may be denominated in Canadian Dollars (a “ Canadian Dollar Advance ”) or in U.S. Dollars (a “ U.S. Dollar Advance ”).  A Canadian Dollar Advance may be designated a “ Floating Rate Advance ” and a U.S. Dollar Advance may be designated a “ LIBOR Advance ” or a “ U.S. Base Rate Advance ”.

 

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Each of a Floating Rate Advance, a LIBOR Advance, and a U.S. Base Rate Advance is a “ Type ” of Advance.

 

“ Affiliate ” of any Person means any other individual or entity who directly or indirectly controls, or is controlled by or is under common control with, such Person, and, for purposes of this definition only, “control”, “controlled by”, and “under common control with” mean possession, directly or indirectly, of power to direct or cause the direction of the management or policies (whether through ownership of voting securities, by contract or otherwise).

 

“ Agency Fee ” has the meaning specified in Section 2.10.

 

“ Agency Fee Agreement ” means the agreement dated as of November 19, 2004 between IPSCO and the Agent respecting the payment of the Agency Fee.

 

“ Agent ” means The Toronto-Dominion Bank in its capacity as agent for the Lenders, and its successors and assigns in such capacity, provided that, so long as The Toronto-Dominion Bank acts as agent for the Lenders, it shall act through Toronto Dominion (Texas) LLC for the purpose of making payments to, and receiving payments from, U.S. Borrowers.

 

“ Agreement ” means this revolving credit agreement and all schedules and instruments in amendment or confirmation of it; “ hereof ”, “ hereto ” and “ hereunder ” and similar expressions refer to this Agreement and not to any particular Article, Section, Subsection or other subdivision; “ Article ”, “ Section ”, “ Subsection ” or other subdivision of this Agreement followed by a number refers to the specified Article, Section, Subsection or other subdivision of this Agreement.

 

“ Agreement for Borrowed Money ” means, with respect to any Person, any bond, debenture, note, conditional sale agreement, lease, loan agreement, Hedging Agreement or other similar material document evidencing any Debt or Hedging Liabilities of such Person.

 

“ Ancillary Agreements ” means the Guarantees, the Assumption Agreements, all promissory notes delivered to evidence Accommodations and all other agreements delivered or given pursuant to this Agreement; and “ Ancillary Agreement ” means any one of such Guarantees, Assumption Agreements, promissory notes or agreements.

 

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“ Applicable Margin ” means at any time, subject to Sections 2.11(2) and 2.11(3),

 

(i)                        for purposes of the definition of the Standby Fee, the percentage per annum shown in Schedule F which corresponds to the utilization rate specified therein;

 

(ii)                     for purposes of the definition of BA Stamping Fee Rate or Issue Fee, the percentage per annum shown in column 3 of Schedule F which corresponds to the ratio of Consolidated Debt to Consolidated EBITDA set forth in the Compliance Certificate delivered to the Agent for the most recently completed Financial Quarter;

 

(iii)                  for purposes of the definitions of U.S. Base Rate and Floating Rate, the percentage per annum shown in column 2 of Schedule F which corresponds to the ratio of Consolidated Debt to Consolidated EBITDA set forth in the Compliance Certificate delivered to the Agent for the most recently completed Financial Quarter; and

 

(iv)                 for purposes of the definition of LIBOR Rate, the percentage per annum shown in column 3 of Schedule F under the column which corresponds to the ratio of Consolidated Debt to Consolidated EBITDA set forth in the Compliance Certificate delivered to the Agent for the most recently completed Financial Quarter,

 

in each case as may be applicable.

 

“ Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in Bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“ arm’s length ” has the meaning ascribed thereto for the purposes of the Income Tax Act (Canada), as in effect from time to time.

 

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“ Assets ” means, with respect to any Person, all property and assets of such Person, both real and personal, of every kind and wheresoever situate, whether now owned or hereafter acquired.

 

“ Assignee ” has the meaning specified in Section 11.8(2)(a).

 

“ Assignment Agreement ” means an agreement substantially in the form of Schedule R hereto.

 

“ Assumption Agreement ” means an agreement substantially in the form of Schedule A hereto.

 

“ Authorization ” means, with respect to any Person, any authorization, order, permit, approval, grant, licence, consent, right, franchise, privilege, certificate, judgment, writ, injunction, award, determination, direction, decree, by-law, rule or regulation of any Governmental Entity having jurisdiction over such Person, whether or not having the force of Law.

 

“ BA Equivalent Note ” means, at any time, a notional note issued by a Canadian Borrower in favour of any Non-BA Lender and evidenced by the account records maintained by the Agent.

 

“ BA Issuance ” means the creation of a Bankers’ Acceptance or the purchase of a BA Equivalent Note by a Canadian Lender.

 

“ BA Issuance Date ” means any Business Day fixed pursuant to Section 4.2(1) for a BA Issuance.

 

“ BA Issuance Notice ” has the meaning specified in Section 4.2(1).

 

“ BA Lender ” means each Canadian Lender which is not a Non-BA Lender.

 

“ BA Reference Discount Rate ” means (a) in respect of Bankers’ Acceptances or Drafts to be purchased by Canadian Lenders that are Schedule I banks under the Bank Act (Canada) pursuant to Article 4, the average rate for Canadian Dollar Bankers’ Acceptances quoted at

 

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approximately 10:00 a.m. (Toronto time) on the Reuters Screen CDOR Page “Canadian Interbank Bid BA Rates”, and (b) in respect of BA Equivalent Notes that are to be purchased by Non-BA Lenders and Bankers’ Acceptances or Drafts to be purchased pursuant to Article 4 by Canadian Lenders other than Schedule I banks under the Bank Act (Canada), the rate referred to above in this definition, plus .10%.

 

“ BA Stamping Fee ” means, with respect to each Draft or BA Equivalent Note drawn by a Canadian Borrower hereunder and, in the case of a Draft, stamped or, in the case of a BA Equivalent Note, purchased by a Canadian Lender on any BA Issuance Date, an amount equal to the BA Stamping Fee Rate multiplied by the aggregate Face Amount of such Draft or BA Equivalent Note, calculated daily on the basis of the term to maturity of such Draft or BA Equivalent Note and a year of 365 days or 366 days in the case of a leap year.

 

“ BA Stamping Fee Rate ” means the Applicable Margin.

 

“ Bank One Lease ” means the operating lease agreement dated October 31, 2000 between IPSCO Steel, as lessee, and the Owner Trustee, as lessor, pursuant to which IPSCO Steel leased from the Owner Trustee certain steel manufacturing equipment located at its steel mill in Montpelier, Iowa.

 

“ Bank One Lease Documentation ” means the Bank One Lease, the site lease made between IPSCO Steel, as site lessor, and the Owner Trustee, as site lessee, and such other documentation entered into in connection therewith.

 

“ Bank One Lease Obligation ” means the amount of the rental obligation related to the Bank One Lease, calculated at the date of determination thereof, as the unpaid amount of such obligation for the corresponding period specified in Schedule P hereto, or such greater or lesser unpaid amount (calculated on the same basis as the amounts on Schedule P have been calculated) as is certified to be the Bank One Lease Obligation in the most recent Compliance Certificate delivered by IPSCO.

 

“ Bankers’ Acceptance ” has the meaning specified in Section 4.1.

 

“ Beneficiary ” means, in respect of any Letter, the beneficiary named in such Letter.

 

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“ Borrowers ” means, collectively, (i) IPSCO, IPSCO Saskatchewan, IPSCO Steel, IPSCO Enterprises, IPSCO A.L. and IPSCO A.I., (ii) any one or more of IPSCO’s direct or indirect Wholly-Owned Subsidiaries which executes and delivers an Assumption Agreement in order to become a Borrower and which has not executed and delivered a Release Agreement, and (iii) in each case their respective successors and permitted assigns, whether or not there are any Outstandings hereunder at the time; and “ Borrower ” means any one of the Borrowers.

 

“ Borrower’s Canadian Dollar Account ” means, with respect to any Canadian Borrower, the Canadian Dollar account maintained by such Borrower at the Canadian Account Branch, the particulars of which shall have been notified by such Borrower to the Agent, and communicated by the Agent to the Canadian Lenders.

 

“ Borrower’s U.S. Dollar Account ” means, with respect to: (i) any Canadian Borrower, the U.S. Dollar account maintained by such Borrower at the Canadian Account Branch, the particulars of which shall have been notified by such Borrower to the Agent; and (ii) any U.S. Borrower, the U.S. Dollar account maintained by such Borrower at the U.S. Account Branch, the particulars of which shall have been notified by such Borrower to the Agent.

 

“ Borrowing ” means a borrowing consisting of one or more Advances.

 

“ Borrowing Notice ” has the meaning specified in Section 3.2.

 

“ Business Day ” means any day of the year on which banks are not required or authorized to close in Toronto, Ontario, provided that where used in the context of a U.S. Dollar Advance, such day is also a day on which banks are not required or authorized to close in New York City or Houston, Texas and, where used in the context of a LIBOR Advance, such day is also a day on which dealings are carried on in the London interbank market.

 

“ Canadian Account Branch ” means the branch of the Agent at which a Canadian Borrower maintains its Borrower’s Canadian Dollar Account and Borrower’s U.S. Dollar Account from time to time, and at which the Agent maintains its Payment Account for Canadian Borrowers from time to time, as the Agent from time to time notifies the Canadian Borrowers.

 

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“ Canadian Borrower ” means any Borrower formed under the laws of Canada, or any Province or Territory thereof.

 

“ Canadian Dollars ” and “ Cdn. $ ” each mean lawful money of Canada.

 

“ Canadian Lenders ” means the Lenders specified as Canadian Lenders in Schedule B and any Assignee of a Canadian Lender that has delivered an Assignment Agreement, and “ Canadian Lender ” means any one of the Canadian Lenders.

 

“Canadian Lender Groups” means, at any particular time, those Lender Groups that include a Canadian Lender.

 

“ Canadian Plan” means (a) a “pension plan” or “plan” which is a “registered pension plan” as defined in the Income Tax Act (Canada) or pension benefits standards legislation in any jurisdiction of Canada and is applicable to employees resident in Canada or to any Canadian Borrowers or Guarantors; and (b) any other defined benefit, supplemental pension benefit plan or similar arrangement applicable to any employee of any Canadian Borrower or Guarantor.

 

“ Canadian Welfare Plan ” means any life, medical, health, dental, hospitalization, disability, travel, accident, accidental health and dismemberment insurance or other employee benefit or welfare plan, agreement or arrangement, other than a Canadian Plan, applicable to any employee of any Canadian Borrower or Guarantor, whether or not insured and whether or not subject to any Law, but excludes any statutory plan by which any Canadian Borrower is required to comply, including the Canada Pension Plan or plans administered pursuant to applicable provincial health, workers’ compensation and employment insurance legislation.

 

“ Capitalized Lease ” means any lease under which the obligation to make rental payments constitutes a Capitalized Lease Obligation.

 

“ Capitalized Lease Obligation ” means any rental obligation relating to a lease which, under GAAP, would be required to be capitalized on the books of IPSCO and its Consolidated Subsidiaries, calculated at the date of determination thereof as the amount thereof accounted for as indebtedness in accordance with GAAP.

 

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“ Cash Equivalents ” means

 

(a)                                   marketable obligations with a maturity of 720 days or less issued or directly and fully guaranteed or issued by the government of the United States of America or Canada or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America or Canada is pledged in support thereof);

 

(b)                                  demand and time deposits and certificates of deposit or acceptances with a maturity of 360 days or less of any U.S. financial institution that is a member of the United States Federal Reserve System or any bank organized under the laws of Canada having combined capital and surplus and undivided profits of not less than $500,000,000 and, in the case of any such U.S. financial institution, is assigned at least a “B” rating by Thomson Financial Bank Watch;

 

(c)                                   commercial paper maturing no more than 360 days from the date of purchase thereof issued by a corporation that is not a Borrower or an affiliate of a Borrower, and is organized under the laws of any state of the United States of America or the District of Columbia or Canada or any province or territory thereof and rated at least A-2 by S&P, at least P-2 by Moody’s or R-1 (low) by DBRS;

 

(d)                                  repurchase obligations with term of not more than ten days for underlying securities of the types described in clause (a) above entered into with any commercial bank meeting the specifications in clause (b) above; and

 

(e)                                   investments in money market or other mutual funds substantially all of whose assets comprise securities of the types described in clauses (a) through (d) above.

 

“ Change of Control ” means, with respect to IPSCO, the acquisition by any person or group of Persons who are associates (as such term is defined in the Securities Act (Ontario)), or who act together in concert for such purpose of (i) shares or other voting securities of IPSCO to which are attached more than 30% of the votes that may be cast to elect directors or other Persons charged with the direction of the management of IPSCO and which, if exercised, are

 

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sufficient to elect a majority of such directors or other management Persons, or (ii) any other right to appoint a majority of such directors or other management Persons or with respect to any Person who from time to time has previously met the foregoing test the further acquisition by such Person or group of Persons who are associates (as such term is defined in the Securities Act (Ontario)) or who act together in concert for such purpose of any further units or other voting securities of IPSCO.

 

“ Claim ” means any claim of any nature whatsoever, including any demand, liability, obligation, debt, cause of action, suit, proceeding, judgment, award, assessment and reassessment.

 

“ Closing ” means the date of execution of this Agreement.

 

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

“ Code Affiliate ” means each Person which, together with IPSCO or any of its Subsidiaries, is treated as a “single employer” under Subsection (b), (c), (m) or (o) of Section 414 of the Code.

 

“ Commitment ” means U.S. $150,000,000, as the same may be reduced from time to time pursuant to Section 2.7, or increased pursuant to Section 2.8.

 

“ Compliance Certificate ” means a certificate in the form of Schedule L hereto.

 

“ Consolidated Assets ” means, at any time, the Assets of IPSCO Consolidated at such time.

 

“ Consolidated Current Assets ” means, at any time, all current assets of IPSCO Consolidated at such time.

 

“ Consolidated Current Liabilities ” means, at any time, all Current Liabilities of IPSCO Consolidated at such time.

 

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“ Consolidated Debt ” means, at any time, the sum of: (i) all Debt of IPSCO Consolidated at such time; and (ii) the Bank One Lease Obligation (to the extent not otherwise included as Debt of IPSCO Consolidated in accordance with GAAP).

 

“ Consolidated EBITDA ” means, at any time with respect to IPSCO Consolidated, Consolidated Net Income for IPSCO’s most recently completed four Financial Quarters, plus:

 

(a)                                   amounts deducted in calculating net income or net loss in respect of non-cash expenses, depreciation and amortization; and

 

(b)                                  amounts deducted in calculating such net income or net loss in respect of Consolidated Interest Expense, net of interest income added in calculating such net income or net loss;

 

(c)                                   amounts deducted in calculating such net income or net loss in respect of Income Tax Expense whether or not deferred;

 

and excluding for such period:

 

(d)                                  any gain or loss attributable to the sale, conversion or other Disposition of Assets out of the ordinary course of business; and

 

(e)                                   any gain resulting from the write-up of Assets or any loss resulting from the write-down of Assets; and

 

(f)                                     all non-cash gains, non-cash losses or other non-cash amounts that were included in such net income; and

 

(g)                                  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

 

(h)                                  any other extraordinary or non-recurring items;

 

all of which shall be calculated on a rolling four quarter basis.

 

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“ Consolidated Fixed Charges ” means, for any period for IPSCO Consolidated, without duplication, the aggregate of (a) Consolidated Interest Expense for such period, plus (b) proforma scheduled payments of principal for the 12 months immediately following such period, including pro forma scheduled payment of principal in respect of the 7.80% unsecured debentures of IPSCO maturing December 1, 2006, net (in the case of such 7.80% unsecured debentures only) of available cash on hand and Cash Equivalents during such period (for greater certainty, the inclusion of cash on hand will be applied, without duplication, to the 7.80% debentures and can in no event result in a calculation in respect of such 7.80% unsecured debentures rendering a number less than zero), plus (c) Income Tax Expense (excluding the deferred portion thereof) of IPSCO Consolidated with respect to such period, plus (d) common and preferred dividends paid with respect to such period, plus (e) Rental Expense, determined in each case for IPSCO Consolidated in accordance with GAAP.

 

“ Consolidated Free Cash Flow ” means, for any period for IPSCO Consolidated, the sum of (a) Consolidated EBITDA, plus (b) Rental Expense for such period, minus (c) Maintenance Capital Expenditures during such period, determined in each case for IPSCO Consolidated.

 

“ Consolidated Interest Expense ” means, for any period for IPSCO Consolidated, without duplication, the aggregate expense incurred by such Persons during such period for interest, capitalized interest and other financing charges in connection with indebtedness incurred by such Persons, determined in each case for IPSCO Consolidated.

 

“ Consolidated Net Income ” means, for any period, the net income (loss) after tax of IPSCO Consolidated for such period.

 

“ Consolidated Revenue ” means, for any period, the Revenue of IPSCO Consolidated for such period.

 

“ Consolidated Shareholders Equity ” means, at any time, in respect of IPSCO Consolidated, the sum of: (i) the stated capital of all of the outstanding Equity Interests of IPSCO Consolidated; (ii) the amount, without duplication, of any contributed surplus as set forth in the financial statements of IPSCO Consolidated; (iii) the accumulated retained earnings of IPSCO

 

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Consolidated; and (iv) accumulated exchange gains or losses arising from the translation of the financial statements of self-sustaining operations for IPSCO Consolidated at such time, in each case determined as at the end of its most recently completed Financial Quarter.

 

“ Consolidated Subsidiary ” means at any time, in respect of any Person, any other Person the accounts of which are or should, in accordance with GAAP, be consolidated with those of such first-mentioned Person in its consolidated financial statements at such time.

 

“ Consolidated Tangible Assets ” means, for any period, the Tangible Assets of IPSCO Consolidated for such period.

 

“ Consolidated Tangible Net Worth ” means, at any time, in respect of IPSCO Consolidated, Consolidated Shareholders Equity at such time, but excluding the net book value of all Assets which would be treated as intangible under GAAP at such time.

 

“ Consolidated Total Assets ” means, at any time, the sum of the Assets of IPSCO Consolidated at such time.

 

“ Consolidated Total Capitalization ” means, at any time, the sum of Consolidated Shareholders Equity and Consolidated Debt at such time.

 

“ Credit Documents ” means this Agreement, the Drafts, the Bankers’ Acceptances, the BA Equivalent Notes, the Letters, all Ancillary Agreements, and all other certificates and instruments delivered or given pursuant to this Agreement or any Ancillary Agreement; and “Credit Document” means any one of the Credit Documents.

 

“ Credit Facility ” means the revolving credit facility to be made available to the Borrowers hereunder for general corporate purposes, including working capital and capital expenditures, repayment of indebtedness, permitted acquisitions, permitted investments, and permitted construction and operation of additional manufacturing and processing facilities.

 

“ Credit Party ” means any Borrower or Guarantor.

 

“ Current Liabilities ” means, in respect of any Person, all current liabilities of such Person at such time.

 

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“ DBRS ” means Dominion Bond Rating Services, and includes any successor rating agency to DBRS, and where reference is made herein to a rating category of DBRS, such rating category shall include the equivalent corresponding rating category used by any such successor rating agency.

 

“ Debt ” means, in respect of any Person, without duplication and, except as provided in item (b) below, without regard to any uncapitalized interest component thereof (whether actual or imputed) that is not due and payable, the aggregate of the following amounts, unless the context otherwise requires:

 

(a)                                   indebtedness for borrowed money (including, without limitation, by way of overdraft) or obligations or indebtedness represented by bonds, debentures, notes payable, drafts accepted and similar instruments representing extensions of credit;

 

(b)                                  the face amount of all bankers’ acceptances and similar instruments;

 

(c)                                   all liabilities for credit extended to such Person upon which interest charges are customarily paid by that Person;

 

(d)                                  capital stock which, 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 Capitalized Lease Obligations and obligations in respect of the deferred purchase price of Assets or services (including obligations in respect of Purchase Money Mortgages);

 

(f)                                     the amount of all contingent liabilities in respect of any Letters and other outstanding letters of credit, letters of guarantee and similar instruments; and

 

(g)                                  the amount of the contingent liability under any guarantee (other than by endorsement of negotiable instruments for collection or deposit in the ordinary

 

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course of business) in any manner or any part or all of an obligation of another Person of the type described in items (a) – (f) above;

 

and, for greater certainty, includes Debt permitted to be incurred in accordance with the terms of this Agreement to the extent that such permitted Debt falls within any of the foregoing categories; provided that trade payables and Non-Capitalized Lease Obligations incurred or entered into in the ordinary course of business do not constitute Debt.

 

“ Default ” means an event which, with the giving of notice or passage of time, or both, would constitute an Event of Default.

 

“ Disposition ” means, with respect to any Asset of any Person, any direct or indirect sale, lease (where such Person is the lessor of such Asset), assignment, transfer (including any transfer of title or possession), exchange, conveyance, release or gift of such Asset, including by means of a Sale-Leaseback Transaction, a liquidation, dissolution or winding-up; and “Dispose” and “Disposed” have meanings correlative thereto.

 

“ Draft ” means, at any time, a blank bill of exchange within the meaning of the Bills of Exchange Act (Canada) in substantially the form set out in Schedule D hereto drawn by a Canadian Borrower on a BA Lender and bearing such distinguishing letters and numbers as such Lender may determine, but which at such time, except as otherwise provided herein, has not been completed or stamped by such Lender.

 

“ Election Notice ” has the meaning specified in Section 3.4(2).

 

“ Encumbrances ” means liens, charges, mortgages, pledges, security interests, adverse claims, defects of title, restrictions, voting trusts, any other rights of a similar nature of third parties relating to any Assets and any other encumbrances of any kind.

 

“ Environmental Laws ” means all applicable Laws relating to the environment, health and safety matters or conditions, Hazardous Substances, pollution or protection of the environment, including Laws relating to: (i) on-site or off-site contamination; (ii) occupational health and safety; (iii) chemical Substances or products; (iv) Releases of pollutants, contaminants, chemicals or other industrial, toxic or radioactive Substances or Hazardous

 

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Substances into the environment; and (v) the manufacture, processing, distribution, use, treatment, storage, transport or handling of Hazardous Substances.

 

“ Equity Interests ” means, as to any Person, all shares, interests, rights, participations or other equivalents of capital stock of (or other ownership or profit interests or units in) such Person and/or any warrants, options or other rights for purchase or acquisition from such Person of any of the foregoing.

 

“ Equity Issuance ” means any issuance by any Person to any other Person of any Equity Interests in such first mentioned Person.

 

“ Equivalent Cdn. $ Amount ” means, on any day with respect to any amount of U.S. Dollars, the equivalent amount of Canadian Dollars determined by using the quoted spot rate at which the Agent’s principal office in Toronto offers to provide Canadian Dollars in exchange for U.S. Dollars in Toronto at 12:00 noon (Toronto time) on such day.

 

“ Equivalent U.S. $ Amount ” means, on any day with respect to any amount of Canadian Dollars, the equivalent amount of U.S. Dollars determined by using the quoted spot rate at which the Agent’s principal office in Toronto offers to provide U.S. Dollars in exchange for Canadian Dollars in Toronto at 12:00 noon (Toronto time) on such day.

 

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974 , as amended.

 

“ ERISA Affiliate ” means, with respect to any Borrower, any corporation which is a member of the same controlled group of corporations as such Borrower or any trade or business which is under common control with such Borrower, within the meaning of Section 414 of the Code.

 

“ ERISA Companies ” means, with respect to any Borrower, such Borrower and its ERISA Affiliates; and “ERISA Company” means any one of such ERISA Companies.

 

“ Event of Default ” has the meaning specified in Section 9.1.

 

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“ Existing Revolving Agreement ” means the existing amended and restated revolving credit agreement dated as of October 13, 2000, as amended, among ( inter alia ) IPSCO, other borrowers, the Agent and various lenders.

 

“ Face Amount ” means, in respect of: (i) a Bankers’ Acceptance or BA Equivalent Note, the amount payable to the holder thereof on its maturity; and (ii) a Letter, the maximum amount payable to the Beneficiary thereunder.

 

“ Federal Funds Rate ” means, for any particular day, the variable rate of interest per annum equal to the weighted average 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 if such rate is not so published for any day which is a business day, the average of the quotations for such day on such transactions received by the Agent from three federal funds brokers of recognized standing selected by it.

 

“ Fees ” means any and all fees payable by a Borrower pursuant to this Agreement or any Ancillary Agreement, including the Standby Fee and the Agency Fee.

 

“ Financial Quarter ” means, in relation to a Borrower, each period of 3 consecutive months beginning on the first day of the first month of such Borrower’s Financial Year.

 

“ Financial Year ” means, in relation to a Borrower, its financial year.

 

“ Floating Rate ” means, for any particular day, the sum of (A) the Prime Rate and (B) the Applicable Margin.

 

“ Floating Rate Advance ” means an Advance denominated in Canadian Dollars which bears interest based on the Floating Rate.

 

“ GAAP ” means, at any time, generally accepted accounting principles which are in effect from time to time in Canada as established by the Canadian Institute of Chartered Accountants, or any successor Person, at such time.

 

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“ Governmental Entity ” means any: (i) multinational, federal, provincial, state, municipal, local or other government, governmental or public department, central bank, court, commission, board, bureau, agency or instrumentality, domestic or foreign; (ii) any subdivision, agent, commission, board, or authority of any of the foregoing; or (iii) any quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under or for the account of any of the foregoing.

 

“ Guarantees ” means the IPSCO Guarantee, the IPSCO Saskatchewan Guarantee, the IPSCO Steel Guarantee, the IPSCO Enterprises Guarantee, the IPSCO A.L. Guarantee and the IPSCO A.I. Guarantee and any other Subsidiary Guarantees; and “ Guarantee ” means any one of such Guarantees.

 

“ Guarantor ” means (i) each Person executing and delivering a Guarantee, (ii) each Wholly-Owned Material Subsidiary that is not a Borrower, and (iii) such other Persons as IPSCO may from time to time designate by notice in writing to the Agent and the Lenders.

 

“ Hazardous Substance ” means any Substance which is or is deemed to be, alone or in any combination, hazardous, hazardous waste, toxic, a pollutant, a deleterious substance, a contaminant or a source of pollution or contamination under any Environmental Law, whether or not such Substance is defined as hazardous under the Environmental Law.

 

“Hedging Transaction” means any interest rate swap, basis swap, forward rate transaction, currency hedging or swap transaction, cap transaction, floor transaction, collar transaction or other similar transaction, whether with respect to interest rates, currencies, commodities or otherwise, or any option with respect to such a transaction or combination of any such transactions.

 

“ Hedging Liabilities ” means any amounts, determined at a particular time, in relation to any Person, with respect to all Hedging Transactions entered into by such Person, equal to the net amount, if any, such Person would be required to pay as liquidation or termination payments under all such Hedging Transactions if all such Hedging Transactions were liquidated or terminated at such time, giving effect to the amounts payable or receivable under each such Hedging Transaction.

 

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“ Houston Lease Obligation ” means the obligations owing from time to time pursuant to the master lease agreement dated June 26, 2001 and related equipment schedules between IPSCO Texas Inc., as lessee, and LaSalle National Leasing Corporation, as lessor, pursuant to which IPSCO Texas Inc. leased from LaSalle National Leasing Corporation certain steel manufacturing equipment located at its coil processing facility in Houston, Texas.

 

“ Income Tax Expense ” means, on a consolidated basis, for any Person for any period, without duplication, the aggregate of all taxes paid or payable by such Person based on the income, capital or business of such Person for such period.

 

“ Interest Period ” means, for each LIBOR Advance, a period which commences: (i) in the case of the initial Interest Period, on the date such Advance is made or converted from another Type of Advance or Accommodation; and (ii) in the case of any subsequent Interest Period, on the last day of the immediately preceding Interest Period, and which ends, in either case, on the day selected by the Borrower in the applicable Borrowing Notice or Election Notice in accordance with this Agreement.  The duration of each Interest Period shall, subject to the Agent’s right to restrict such Interest Period, be 1, 2, 3, 6 or 12 months, unless the last day of an Interest Period would otherwise occur on a day other than a Business Day, in which case the last day of such Interest Period shall be extended to occur on the next Business Day or if such extension would cause the last day of such Interest Period to occur in the next calendar month, the last day of such Interest Period shall occur on the preceding Business Day.

 

“ Investment ” means any direct or indirect advance, loan or other extension of credit (other than in the ordinary course of business) or capital contribution to (by means of transfers of property to others, or payments for property for the account or use of others, or otherwise), or assumption of debt in connection with the acquisition of, or purchase or other acquisition of any shares, equity interests, indebtedness, bonds, notes or other securities of, or all or substantially all of the Assets and/or business of, any Person, including acquisitions by amalgamation or other forms of merger.  For greater certainty, “Investment” means and includes the portion of any Investment satisfied in whole or in part by assumption of debt or other liabilities.

 

“ IPSCO ” means IPSCO Inc.

 

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“ IPSCO A.I. ” means IPSCO Steel (Alabama) Inc., a corporation incorporated under the laws of the State of Alabama, a Wholly-Owned Subsidiary of IPSCO.

 

“ IPSCO A.L. ” means IPSCO Alabama Ltd. a limited partnership organized under the laws of the State of Alabama, a Wholly-Owned Subsidiary of IPSCO.

 

“ IPSCO A.I. Guarantee ” means the guarantee agreement, substantially in the form of Schedule C hereto, to be made by IPSCO A.I. in favour of the Agent, for the benefit of the Lenders, in respect of all present and future indebtedness of IPSCO to the Agent and the Lenders under the Credit Documents.

 

“ IPSCO A.L. Guarantee ” means the guarantee agreement, substantially in the form of Schedule C hereto, to be made by IPSCO A.L. in favour of the Agent, for the benefit of the Lenders, in respect of all present and future indebtedness of IPSCO to the Agent and the Lenders under the Credit Documents.

 

“IPSCO Consolidated” means, collectively and on a consolidated basis, IPSCO and each of its Consolidated Subsidiaries, and where the context requires, IPSCO and each of its Consolidated Subsidiaries on an individual basis.

 

“ IPSCO Enterprises ” means IPSCO Enterprises Inc., a corporation incorporated under the laws of the State of Delaware, a Wholly-Owned Subsidiary of IPSCO.

 

“ IPSCO Enterprises Guarantee ” means the guarantee agreement, substantially in the form of Schedule C hereto, to be made by IPSCO Enterprises in favour of the Agent, for the benefit of the Lenders, in respect of all present and future indebtedness of IPSCO to the Agent and the Lenders under the Credit Documents.

 

“ IPSCO Guarantee ” means the guarantee agreement, substantially in the form of Schedule C hereto, to be made by IPSCO in favour of the Agent, for the benefit of the Lenders, in respect of all present and future indebtedness to the Agent and the Lenders under the Credit Documents of each Wholly-Owned Subsidiary of IPSCO which (i) is a Borrower that is initially a party to this Agreement or (ii) which executes an Assumption Agreement in order to become a Borrower and which has not executed and delivered a Release Agreement.

 

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“ IPSCO Saskatchewan ” means IPSCO Saskatchewan Inc., a corporation incorporated under the laws of Canada, a Wholly-Owned Subsidiary of IPSCO.

 

“ IPSCO Saskatchewan Guarantee ” means the guarantee agreement, substantially in the form of Schedule C hereto, to be made by IPSCO Saskatchewan in favour of the Agent, for the benefit of the Lenders, in respect of all present and future indebtedness of IPSCO to the Agent and the Lenders under the Credit Documents.

 

“ IPSCO Steel ” means IPSCO Steel Inc., a corporation incorporated under the laws of the State of Delaware, a Wholly-Owned Subsidiary of IPSCO.

 

“ IPSCO Steel Guarantee ” means the guarantee agreement, substantially in the form of Schedule C hereto, to be made by IPSCO Steel in favour of the Agent, for the benefit of the Lenders, in respect of all present and future indebtedness of IPSCO to the Agent and the Lenders under the Credit Documents.

 

“ Issue ” means an issue of a Letter by a Lender pursuant to Article 5.

 

“ Issue Date ” has the meaning specified in Subsection 5.2(1).

 

“ Issue Fee ” means, with respect to each Letter issued hereunder, the amount equal to the Applicable Margin multiplied by the aggregate Face Amount of the Letter, calculated on the basis of the term of the Letter and a year of 365 days or 366 days in the case of a leap year.

 

“ Issue Notice ” has the meaning specified in Subsection 5.2(1).

 

“ Issuing Lender ” means (i) with respect to a Canadian Borrower, The Toronto-Dominion Bank, in its capacity as issuer of Letters hereunder, and (ii) with respect to a U.S. Borrower, Toronto Dominion (Texas) LLC, in its capacity as issuer of Letters hereunder.

 

“ Laws ” means all statutes, codes, ordinances, decrees, rules, regulations, municipal by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies or guidelines having the force of law, or any provisions of the foregoing, including general principles of common and civil law and equity,

 

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binding on or affecting the Person referred to in the context in which such word is used; and “ Law ” means any one of the foregoing.

 

“ Lenders ” means the Canadian Lenders and the U.S. Lenders, and “ Lender ” means any of the Lenders.

 

“ Lender Groups ” means:  (i) The Toronto-Dominion Bank and Toronto Dominion (Texas) LLC; (ii) JPMorgan Chase Bank, N.A., Toronto Branch and JPMorgan Chase Bank, N.A.; (iii) Royal Bank of Canada and Royal Bank of Canada, acting through a New York Branch; (iv) Bank of America N.A., by its Canada Branch and Bank of America, N.A.; (v) ABN AMRO Bank N.V., Canada Branch and ABN AMRO Bank N.V.; (vi) Wells Fargo Bank, National Association; (vii) The Bank of Nova Scotia and The Bank of Nova Scotia, by its Atlanta Agency; (viii) Bank of Montreal and Bank of Montreal, Chicago Branch; (ix) Fifth Third Bank (Chicago); and (x) any assignee of a Lender Group or any substitute Lender Group; in each case which has delivered an Assignment Agreement, and “ Lender Group ” means any one of the Lender Groups.

 

“ Lender Group Commitment ” means, at any particular time, with respect to a particular Lender Group, the amount set forth in Schedule B hereto as the Lender Group Commitment of such Lender Group under the Credit Facility, as the same may be reduced or increased from time to time pursuant to this Agreement.

 

“ Letter ” means a commercial letter of credit, a stand-by letter of credit or a letter of guarantee (each of which is a “ Type ” of Letter) issued or to be issued by a Lender for the account of the Borrower pursuant to Article 5 and in such form as such Lender may from time to time approve.

 

“ LIBOR ” means: (i) for each Interest Period for each LIBOR Advance made to a Canadian Borrower, the rate for deposits in U.S. $ for a period comparable to such Interest Period which is quoted on the Telerate screen (Page 3750) as of 11:00 a.m. (London time) two Business Days before the first day of such Interest Period, or if the Telerate screen (Page 3750) is not available, as quoted by such other official reporting service as reasonably determined by the Agent; and (ii) for each Interest Period for each LIBOR Advance made to a U.S. Borrower, the

 

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rate obtained by dividing (x) the rate for deposits in U.S. $ for a period comparable to such Interest Period which is quoted on the Telerate screen (page 3750) as of 11:00 a.m. (London time) two Business Days before the first day of such Interest Period, by (y) the remainder of 1.0 minus the Reserve Percentage.

 

“ LIBOR Advance ” means an Advance bearing interest as provided in Section 3.3(1)(d).

 

“ LIBOR Rate ” means the interest rate per annum equal to LIBOR, plus the Applicable Margin.

 

“ Loss ” means any loss whatsoever, whether direct or indirect, including expenses, costs, damages, judgments, penalties, fines, charges, claims, demands, liabilities, loss of profits, interest, and any and all legal fees and disbursements, on a solicitor and his own client basis.

 

“ Maintenance Capital Expenditures ” means, for any period for IPSCO Consolidated, the aggregate capital expenditures paid or payable by such Persons during such period for the maintenance of fixed assets with a useful life of one year or more.

 

“ Majority Lenders ” means, at any time, such group of Lender Groups whose Lender Group Commitments aggregate at least 66 ^2/3 % of the aggregate of the Lender Group Commitments of all the Lender Groups at such time.  If, at such time, the Commitment has been terminated, then Majority Lenders shall mean such group of Lender Groups whose Outstandings aggregate at least 66 ^2/3 % of the Total Outstandings of all the Lender Groups.

 

“ Material Adverse Effect ” means a material adverse effect (or a series of adverse effects, none of which is material in and of itself but which, cumulatively, result in a material adverse effect) on: (i) the business, operations, Assets or financial condition of IPSCO Consolidated, measured as a whole; or (ii) the ability of IPSCO, or the ability of any other Borrower with the assistance of IPSCO, to observe, perform or comply with any of its payment obligations under this Agreement or any other Credit Document to which such Borrower is a party; or (iii) the validity or enforceability of any of the Credit Documents or the rights and remedies of the Agent or any of the Lenders under any of the Credit Documents.

 

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“ Material Subsidiary ” means, at any time:  (i) any Consolidated Subsidiary of IPSCO having Tangible Assets in excess of 5% of Consolidated Tangible Assets or having Revenue in excess of 5% of Consolidated Revenue, determined at the end of the most recently completed Financial Quarter of IPSCO based on the financial statements of IPSCO Consolidated delivered pursuant to Sections 8.1(1)(a) and 8.1(1)(b) and reflected in the Compliance Certificate delivered pursuant to Section 8.1(1)(d) for the most recently completed Financial Quarter; and (ii) any Consolidated Subsidiary of IPSCO designated by notice in writing given by IPSCO to the Agent to be a “Material Subsidiary”; provided that, any such Consolidated Subsidiary so designated as a “Material Subsidiary” shall at all times thereafter remain a “Material Subsidiary” for the purposes of this Agreement unless otherwise agreed to by the Borrowers and the Majority Lenders.

 

“ Maturity Date ” means November 19, 2007.

 

“ Moody’s ” means Moody’s Investor Service, Inc. and includes any successor rating agency to Moody’s, and where reference is made herein to a rating category of Moody’s, such rating category shall include the equivalent corresponding rating category used by any such successor rating agency.

 

“ Multiemployer Plan ” shall mean any U.S. Plan which is a “Multiemployer Plan” (as such term is defined in Section 4001(a)(3) of ERISA).

 

“ Net Available Equity Issuance Proceeds ” means, with respect to any Equity Issuances to Persons other than (i) IPSCO, (ii) any of its Consolidated Subsidiaries, or (iii) directors, officers, employees or other independent contractors of any of IPSCO Consolidated under applicable director, executive or employee compensation plans of IPSCO Consolidated, whether private or public, the net amount equal to the aggregate amount received in cash (including any cash received by way of deferred advance or instalment but only as and when such cash is so received) in connection with such Equity Issuance, less the reasonable fees, commissions and other out-of-pocket expenses (as evidenced by supporting documentation provided to the Agent upon request therefore) incurred or paid for any Borrower or Subsidiary in connection with such Equity Issuance.

 

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“ Non-BA Lender ” means a Canadian Lender which is not permitted by applicable Law or customary market practices to create a Bankers’ Acceptance for the purposes of subsequent sale.

 

“ Non-Capitalized Lease ” means any lease of Assets employed or utilized in the businesses of IPSCO Consolidated and having an original term of one year or more (inclusive of all renewal terms), under which the obligation to make rental payments does not constitute a Capitalized Lease Obligation.

 

“ Non-Capitalized Lease Obligation ” means any rental obligation relating to a Non-Capitalized Lease.

 

“ Notice ” means any claim, citation, directive, request for information, statement of claim, notice of investigation or other similar communication from any Person.

 

“ Original Currency ” has the meaning specified in Section 10.6(1).

 

“ Other Currency ” has the meaning specified in Section 10.6(1).

 

“ Outstandings ” means, with respect to any Lender at any time, an amount calculated in U.S. Dollars at such time equal to the sum of: (i) the aggregate principal amount of all outstanding Advances by such Lender (in the case of Advances in currencies other than U.S. Dollars, the Equivalent U.S. $ Amount will apply for purposes of this calculation); (ii) the Equivalent U.S. $ Amount of the aggregate Face Amount of all outstanding Bankers’ Acceptances stamped or BA Equivalent Notes purchased by such Lender; and (iii) the aggregate Face Amount of all Letters issued by any Lender at such time.

 

“ Owner Trustee ” means the trustee under the trust agreement made in contemplation of the Bank One Lease between First Chicago Leasing Corporation, as settlor and beneficiary, and State Street Bank and Trust Company of Connecticut, National Association, as trustee, creating IPSCO Trust No. 2000-1.

 

“ Payment Account ” means such account or accounts maintained by the Agent at the Canadian Account Branch in respect of the Canadian Borrowers and at the U.S. Account Branch

 

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in respect of the U.S. Borrowers, as the Agent from time to time notifies the Lenders and the relevant Borrowers.

 

“ Permitted Encumbrances ” means, with respect to any Person, any one or more of the following:

 

(a)                                   any Encumbrance resulting from security given to a public utility or Governmental Entity when required by such utility or Governmental Entity in connection with the operation of the business of such Person;

 

(b)                                  any Encumbrance resulting from the deposit of cash or securities in connection with contracts (other than Agreements for Borrowed Money), tenders or expropriation proceedings, or to secure worker’s compensation, surety appeal bonds or costs of litigation when required by Law, and public and statutory obligations;

 

(c)                                   any Encumbrance, payment of which has been provided for by the depositing with the Agent of an amount in cash, or the obtaining of a surety bond satisfactory to the Agent in its absolute discretion, sufficient in either case to pay or discharge the same and which deposit or bond the Agent is authorized to use or draw upon for that purpose;

 

(d)                                  carriers’, warehousemen’s, mechanics’, material-men’s, repairmen’s or other similar Encumbrances arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested at the time by the Person in good faith by proper legal proceedings if: (i) adequate reserves with respect thereto are maintained on the books of such Person, if required in accordance with GAAP; and (ii)  to the extent that such Encumbrances relate to Assets that are material to the business of the Person, such Encumbrances do not materially interfere with the use of such Assets by the Person or involve any immediate danger of the sale, forfeiture or loss of such Assets;

 

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(e)                                   covenants restricting or prohibiting access to or from real property abutting on controlled access highways, which do not adversely impair in any material respect the use of the real property concerned in the operation of the business conducted on such real property;

 

(f)                                     Encumbrances affecting real property of the Person which are leasehold or license interests and relating to real property that is not otherwise required in the conduct of the business of such Person;

 

(g)                                  Encumbrances affecting real property of the Person which are: (i) title defects, encroachments or irregularities of a minor nature; or (ii) restrictions, easements, rights-of-way, servitudes or other similar rights in land (including, without restriction, rights of way and servitudes for railways, sewers, drains, gas and oil pipelines, gas and water mains, electric light and power and telephone or telegraph or cable television conduits, poles, wires and cables) granted to or reserved by other Persons, and in each case to the extent that such Encumbrances relate to real property that is material to the business of the Person, such Encumbrances do not materially interfere with the use of such real property by the Person;

 

(h)                                  Encumbrances existing on the date hereof and disclosed in Schedule E only to the extent such Encumbrances conform to their description in Schedule E, including the Encumbrances resulting from the Bank One Lease Documentation, the Houston Lease Obligation and the St. Paul Lease Obligation covering the real and personal property that is the subject thereof, as such property is more particularly described in Schedule E hereto;

 

(i)                                      Encumbrances for Debt or Hedging Liabilities, provided that the aggregate principal amount of the underlying Debt and Hedging Liabilities secured by all such Encumbrances, together with the aggregate principal amount of the underlying Debt secured by any and all Encumbrances of the type referred to in clause (l) of this definition, but not including any amount owing in respect of

 

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Encumbrances of the type referred to in clauses (c), (d), (h), (k), (p) or (q) of this definition, does not exceed U.S. $25,000,000 at any time;

 

(j)                                      Encumbrances for taxes, assessments or governmental charges or levies not at the time due and delinquent or the validity of which is being contested at the time by the Person in good faith by proper legal proceedings if: (i) adequate reserves with respect thereto are maintained on the books of such Person, if required in accordance with GAAP; and (ii) to the extent that such Encumbrances relate to Assets that are material to the business of the Person, such Encumbrances do not materially interfere with the use of such Assets by the Person or involve any immediate danger of the sale, forfeiture or loss of such Assets;

 

(k)                                   Encumbrances resulting from any judgment rendered or Claim filed against the Person which the Person shall be contesting in good faith by proper legal proceedings if: (i) adequate reserves with respect thereto are maintained on the books of such Person, if required in accordance with GAAP; and (ii) to the extent that such Encumbrances relate to Assets that are material to the business of the Person, such Encumbrances do not materially interfere with the use of such Assets by the Person or involve any immediate danger of the sale, forfeiture or loss of such Assets;

 

(l)                                      subject to the monetary limitation set out in clause (i) of this definition, Purchase Money Mortgages;

 

(m)                                the reservations, limitations, provisos and conditions, if any, expressed in any original grants of real property from the Crown;

 

(n)                                  the right reserved to or vested in any Governmental Entity by any statutory provision, or by the terms of any lease, licence, franchise, grant or permit of the Person, to terminate any such lease, license, franchise, grant or permit or to require annual or other payments as a condition to the continuance thereof;

 

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(o)                                  undetermined or inchoate Encumbrances arising in the ordinary course of business which have not at such time been filed pursuant to Law against the Person or which relate to obligations not due or delinquent;

 

(p)                                  Encumbrances in favour of any Credit Party permitted by this Agreement;

 

(q)                                  Encumbrances for Debt on Assets of any Person existing at the time such Person is acquired or merged with or into or consolidated with IPSCO or any of the other Credit Parties (and not created in anticipation or contemplation thereof) provided that the aggregate principal amount of the underlying Debt secured by all such Encumbrances does not exceed U.S.$100,000,000; and

 

(r)                                     zoning and building by-laws and ordinances, municipal by-laws, state or provincial laws, and regulations, which do not adversely affect in any material respect the use of real property concerned in the operation of the business conducted on such real property.

 

“ Permitted Investments ” means:

 

(a)                                   Cash Equivalents; or

 

(b)                                  demand deposits with the Agent or any Lender; or

 

(c)                                   investments in securities of trade debtors or customers received pursuant to any order made in connection with a plan of compromise, arrangement or reorganization or similar arrangement upon the bankruptcy or insolvency of such trade debtors or customers; or

 

(d)                                  stock, obligations or securities received by a Borrower or a Subsidiary in settlement of debts created in the ordinary course of business and owing to a Borrower or Subsidiary in satisfaction of judgements; or

 

(e)                                   redemptions or repurchases by IPSCO of common shares of IPSCO effected in accordance with applicable securities laws and stock exchange requirements, provided that the aggregate number of common shares so redeemed or

 

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repurchased in any 12 month period does not exceed 5% of the issued and outstanding common shares at the commencement of such period; or

 

(f)                                     such other investments approved in advance by the Agent, upon direction from Majority Lenders, in their sole discretion, acting reasonably.

 

“ Person ” means an individual, partnership, corporation, limited or unlimited liability company, trust, unincorporated association, joint venture or other entity or Governmental Entity, and pronouns have a similarly extended meaning.

 

“ Prime Rate ” means, for any day, the greater of: (i) the annual rate of interest expressed as a percentage per annum on the basis of a 365 or 366 day year, as the case may be, which the principal office of the Agent in Toronto, Ontario quotes, publishes and refers to as its “prime rate” and which is its reference rate of interest for commercial loans made by it in Canada in Canadian Dollars; and (ii) the rate for Canadian Dollar Bankers’ Acceptances having a term of one month that appears on the Reuters Screen CDOR Page at 10:00 a.m. (Toronto time), plus 0.75%, adjusted automatically with each quoted, published or displayed change in such rate, all without necessity of any notice to a Borrower or any other Person.

 

“ Pro Rata Share ” means, at any particular time: (i) with respect to a particular Lender, (A) when used with respect to an Accommodation to a Canadian Borrower, the ratio of the Lender Group Commitment of the Lender Group of such Lender at such time to the aggregate of the Lender Group Commitments of all the Canadian Lender Groups at such time and (B) when used with respect to an Accommodation to a U.S. Borrower, the ratio of the Lender Group Commitment of the Lender Group of such Lender at such time to the aggregate of the Lender Group Commitments of all the Lender Groups at such time; and (ii) when used with respect to a particular Lender Group, or in a context other than that referred to in clause (i)(A), the ratio of the Lender Group Commitment of a Lender Group at such time to the aggregate of the Lender Group Commitments of all the Lender Groups at such time.

 

“ Purchase Money Mortgage ” means, with respect to any Person, any Encumbrance (including any Encumbrances in respect of Capitalized Leases) charging tangible personal property acquired by such Person, which is granted or assumed by such Person or which arises

 

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by operation of Law substantially concurrently with and for the purpose of financing the acquisition of such property or to secure the unpaid purchase price thereof, in each case where: (i) the principal amount secured by such Encumbrance is not in excess of 75% of the cost to such Person of the Asset acquired; and (ii) such Encumbrance extends only to the tangible personal property acquired and the proceeds therefrom.

 

“ Release ” when used as a verb includes release, spill, leak, emit, deposit, discharge, leach, migrate or dispose into the environment and the term “Release” when used as a noun has a correlative meaning.

 

“ Release Agreement ” means an agreement in the form of Schedule M hereto which may be delivered by any Borrower that executes an Assumption Agreement to become a Borrower hereunder, but, for certainty, may not be delivered by any Borrower that is party to this Agreement at Closing. For greater certainty, if a Borrower executes a Release Agreement, and such Borrower is also a Material Subsidiary that, pursuant to Section 8.2(1) or other provisions of this Agreement, has been or would have been (but for the fact that such Material Subsidiary was a Borrower that had already executed a Subsidiary Guaranty) required to execute and deliver a Subsidiary Guarantee, then the execution and delivery of a Release Agreement by such Borrower shall release such Borrower only from its obligations under this Agreement, and its Subsidiary Guarantee shall remain in place and, in that regard, appropriate amendments shall be made to the form of agreement at Schedule M hereto to reflect the limited extent of any such release.

 

“ Rental Expense ” means, for any period, the aggregate amount of rental payments paid or payable by IPSCO Consolidated during such period in respect of the rental of real or personal property under any lease with an original term (including renewal terms) of one year or more. For greater certainty, “Rental Expense” is intended to include all such rental payments that are properly characterized as expenses on an income statement for leases which have an original term (including renewal terms) of one year or more in term.

 

“ Reserve Percentage ” means the percentage which is in effect from time to time under Regulation D of the Board of Governors of the Federal Reserve System, as such regulation may be amended from time to time, as the maximum reserve requirement applicable with respect to

 

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Eurocurrency liabilities (as that term is defined in Regulation D), whether or not any U.S. Lender has any such Eurocurrency liabilities subject to such reserve requirement at that time.

 

“ Revenue ” means, for any period and with respect to any Person, the revenue of such Person for such period, excluding any revenue derived from intercompany transactions with any other Person the accounts of which are or should, in accordance with GAAP, be consolidated with those of such first-mentioned Person in its consolidated financial statements for such period.

 

“ Sale-Leaseback Transaction ” means, with respect to any Person, any direct or indirect arrangement entered into pursuant to which such Person transfer or causes the transfer of any Asset to another Person and leases such Assets back from such Person.

 

“ St. Paul Lease Obligation ” means the obligations owing from time to time pursuant to the master lease agreement dated December 20, 2000 and related equipment schedules between IPSCO Minnesota Inc., as lessee and Bank One Leasing Corporation, as lessor, pursuant to which IPSCO Minnesota Inc. leased from the Bank One Leasing Corporation certain steel manufacturing equipment located at its coil processing mill in St. Paul, Minnesota.

 

“ S & P ” means Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies and includes any successor rating agency to S & P, and where reference is made herein to a rating category of S & P, such rating category shall include the equivalent corresponding rating category used by any such successor rating agency.

 

“ Standby Fee ” has the meaning specified in Section 2.9.

 

“ Subsidiary ” means, at any time, as to any Person, any corporation or other Person, if at such time the first mentioned Person owns, directly or indirectly, more than 50% of the Equity Interests in such other Person entitled ordinarily to vote in the election of the board of directors of, or Persons performing similar functions for, such other Person.

 

“ Subsidiary Guarantee ” means the guarantee agreement, substantially in the form of Schedule C hereto, to be made by each Wholly-Owned Subsidiary of IPSCO which (i) is a Borrower that is initially a party to this Agreement, (ii) executes an Assumption Agreement in order to become a Borrower and which has not executed and delivered a Release Agreement, or

 

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(iii) receives Assets from a Borrower and is required to execute and deliver a guarantee agreement pursuant to Section 8.2(2) of this Agreement, in each case in favour of the Agent, for the benefit of the Lenders, in respect of all present and future indebtedness of IPSCO to the Agent and the Lenders under the Credit Documents.

 

“ Substance ” means any substance, waste, liquid, gaseous or solid matter, fuel, micro-organism, sound, vibration, ray, heat, odour, radiation, energy vector, plasma and organic or inorganic matter.

 

“ Syndication Agent ” means JPMorgan Chase Bank, N.A., in its capacity as syndication agent, and its successors and assigns in such capacity.

 

“ Tangible Assets ” means, in respect of any Person, the gross book value as shown by the accounting books and records of such Person of all its Assets, less: (i) the net book value of all its licences, patents, patent applications, copyrights, trademarks, trade or brand names, goodwill, non-compete agreements or organizational expenses and other like intangibles; (ii) unamortized Debt discount and expense; (iii) all reserves for depreciation, obsolescence, depletion and amortization of its Assets excluding reserves for Assets in clause (i) above; and (iv) all other proper reserves for Assets which in accordance with GAAP should be provided in connection with the business conducted by such Person.

 

“ Taxes ” shall have the meaning specified in Section 10.12(a).

 

“ Total Outstandings ” means, at any time with respect to the Credit Facility, the aggregate amount in U.S. Dollars of all Outstandings under the Credit Facility at such time, calculated by reference to the Equivalent U.S. $ Amount in the case of Outstandings in currencies other than U.S. Dollars.

 

“ U.S. Account Branch ” means the branch of the Agent at which a U.S. Borrower maintains its U.S. Dollar account from time to time, and at which the Agent maintains its Payment Account for U.S. Borrowers from time to time, as the Agent from time to time notifies the U.S. Borrowers.

 

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“ U.S. Base Rate ” means, for any particular day: (i) in respect of a U.S. Base Rate Advance made in Canada to a Canadian Borrower, the sum of (A) the greater of: (x) the rate which the principal office of the Agent in Toronto, Ontario announces from time to time as its reference rate of interest for loans in U.S. Dollars to Canadian Borrowers; and (y) 0.75% above the Federal Funds Rate, in each case adjusted automatically with each change in such rate all without the necessity of any notice to a Borrower or any other Person, plus (B) the Applicable Margin; and (ii) in respect of a U.S. Base Rate Advance made in the United States to a U.S. Borrower, the variable rate of interest per annum equal to the U.S. Prime Rate for such day, plus the Applicable Margin.

 

“ U.S. Base Rate Advance ” means an Advance denominated in U.S. Dollars bearing interest based on the U.S. Base Rate.

 

“ U.S. Borrower ” means any Borrower formed under the laws of the United States of America, any State thereof or the District of Columbia.

 

“ U.S. Dollars ” and “ U.S. $ ” means lawful money of the United States of America.

 

“ U.S. Lender ” means the Lenders specified as U.S. Lenders in Schedule B and any Assignee of a U.S. Lender that has delivered an Assignment Agreement, and “ U.S. Lender ” means any one of the U.S. Lenders.

 

“ U.S. Lender Groups ” means, at any particular time, those Lender Groups that do not include a Canadian Lender.

 

“ U.S. Plan ” shall mean any “employee pension benefit plan” (as such term is defined in Section 3 of ERISA) which is or has been established or maintained, or to which contributions are or have been made, by IPSCO or any ERISA Affiliate.

 

“ U.S. Prime Rate ” means, for any particular day, the greater of: (i) the variable rate of interest per annum, calculated on the basis of a year of 365 days or 366 days in the case of a leap year, equal to the rate of interest per annum announced by the Agent in New York for such day as its prime rate for U.S. Dollar loans made by it in the United States to U.S. borrowers; and (ii)

 

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0.75% above the Federal Funds Rate, in each case adjusted automatically with each change in such rate all without the necessity of any notice to a Borrower or any other Person.

 

“ Voting Stock ” means, with respect to any Person, any securities or other ownership interests in such Person having ordinary voting power to elect a majority of the board of directors or persons performing similar functions for such Person (irrespective of whether at the time securities of any other class or classes shall have or might have voting power by reason of the happening of any contingency).

 

“ Wholly-Owned Material Subsidiary ” means, at any time and with respect to IPSCO or any Material Subsidiary, any Material Subsidiary 100% of all of the Equity Interests (including Voting Stock, but excluding only directors’ qualifying shares) of which is owned, directly or indirectly, by one or more of IPSCO or such first mentioned Material Subsidiary or by IPSCO’s or such first mentioned Material Subsidiary’s other Wholly-Owned Material Subsidiaries, at such time.

 

“ Wholly-Owned Subsidiary ” means, at any time and with respect to IPSCO or any Subsidiary, any Subsidiary 100% of all of the Equity Interests (including Voting Stock, but excluding only directors’ qualifying shares) of which is owned, directly or indirectly, by one or more of IPSCO or such first-mentioned Subsidiary or by IPSCO’s or such first-mentioned Subsidiary’s other Wholly-Owned Subsidiaries, at such time.

 

1.2                                Interpretation.

 

This Agreement shall be interpreted in accordance with the following:

 

(a)                                   words denoting the singular include the plural and vice versa and words denoting any gender include all genders;

 

(b)                                  headings shall not affect the interpretation of this Agreement;

 

(c)                                   references to dollars, unless otherwise specifically indicated, shall be references to Canadian Dollars;

 

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(d)                                  the word “including” shall mean “including without limitation” and “includes” shall mean “includes without limitation”;

 

(e)                                   the expressions “the aggregate”, “the total”, “the sum” and expressions of similar meaning shall mean “the aggregate (or total or sum) without duplication”;

 

(f)                                     in the computation of periods of time, unless otherwise expressly provided, the word “from” means “from and including” and the words “to” and “until” mean “to but excluding”; and

 

(g)                                  except to the extent otherwise defined or stipulated herein, all accounting terms and accounting calculations or determinations shall be construed or determined in accordance with GAAP and, where expressed in the context of IPSCO Consolidated, such calculations or determinations shall be made on a consolidated basis. To the extent that there are any changes in GAAP from time to time, the financial statements required to be delivered pursuant to this Agreement shall be prepared, and all calculations made for the purposes of this Agreement shall be made, by the application of GAAP, as changed from time to time. To the extent that GAAP does not change from time to time, GAAP may be applied on a basis that is not consistent with the application of GAAP for previous Financial Years of IPSCO Consolidated; provided that, without the prior written consent of the Majority Lenders, all calculations made for the purposes of determining compliance with the provisions of this Agreement shall be made by the application of GAAP applied on a basis consistent with the most recent audited financial statements of IPSCO Consolidated previously delivered to the Lenders.

 

1.3                                Other Credit Documents.

 

The provisions of Section 1.2 shall apply to the interpretation of all Credit Documents unless specifically otherwise indicated.

 

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1.4                                Severability.

 

If any provision of this Agreement or any other Credit Document is, or becomes, illegal, invalid or unenforceable, such provision shall be severed from this Agreement or such other Credit Document and be ineffective to the extent of such illegality, invalidity or unenforceability. The remaining provisions hereof or thereof shall be unaffected by such provision and shall continue to be valid and enforceable.

 

1.5                                Entire Agreement.

 

This Agreement supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties relating to the subject matter hereof and entered into prior to the date of this Agreement, other than the Agency Fee Agreement.

 

1.6                                Waiver.

 

No failure on the part of the Agent or any of the Lenders to exercise, and no delay in exercising, any right under this Agreement or any other Credit Document shall operate as a waiver of such right; nor shall any single or partial exercise of any right under this Agreement or any other Credit Document preclude any other or further exercise thereof or the exercise of any other right; nor shall any waiver of one provision be deemed to constitute a waiver of any other provision (whether or not similar). No waiver of any of the provisions of this Agreement or any other Credit Document shall be effective unless it is in writing duly executed by the waiving party.

 

1.7                                Governing Law.

 

(1)                                   This Agreement and all of the other Credit Documents shall be governed by and interpreted in accordance with the Laws of the Province of Ontario and the Laws of Canada applicable therein which apply to contracts made and to be performed entirely in Ontario; provided that the parties agree that the Subsidiary Guarantees may, in the sole discretion of the Agent, be stated to be governed by and interpreted in accordance with the laws of any other jurisdiction which would be a more appropriate jurisdiction in the circumstances.

 

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(2)                                   The parties hereby irrevocably attorn and submit to the non-exclusive jurisdiction of the courts of Ontario with respect to any matter arising under or related to the Agreement or any other Credit Document; provided that, with respect to the Subsidiary Guarantees which are stated to be governed by the laws of any other jurisdiction, the parties agree to attorn and submit to the non-exclusive jurisdiction of the courts of such other jurisdiction.

 

1.8                                Incorporation of Schedules.

 

The following schedules attached hereto shall, for all purposes hereof, be incorporated in and form an integral part of this Agreement:

 

Schedule A		Form of Assumption Agreement
Schedule B		Lender Groups and Commitments
Schedule C		Form of Guarantee
Schedule D		Form of Draft
Schedule E		Permitted Encumbrances
Schedule F		Applicable Margin
Schedule G		Form of Borrowing Notice
Schedule H		Form of Election Notice
Schedule I		Form of BA Issuance Notice
Schedule J		Form of Issue Notice
Schedule K		Addresses for Notice
Schedule L		Form of Compliance Certificate
Schedule M		Form of Release Agreement
Schedule N		Proceedings
Schedule O		Non-qualified Plans
Schedule P		Bank One Lease Obligation
Schedule Q		Restrictive Agreements

 

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Schedule R		Form of Assignment Agreement
Schedule S		Existing Letters of Credit/Letters of Guarantee

 

1.9                                Conflicts.

 

If a conflict or inconsistency exists between a provision of this Agreement and a provision of any of the other Credit Documents or any part thereof, then the provisions of this Agreement shall prevail.

 

ARTICLE 2
CREDIT FACILITY

 

2.1                                Credit Facility.

 

Each of the Lenders severally, but not jointly, agrees, on the terms and conditions of this Agreement, to make available to a Borrower that Lender’s Pro Rata Share of the Credit Facility by making such Accommodations to a Borrower as may be requested by a Borrower in accordance with this Agreement.

 

2.2                                Available Accommodations.

 

(1)                                   Each of the Lenders shall, on the terms and conditions of this Agreement, make its Pro Rata Share of the following Accommodations available under the Credit Facility as follows:

 

(a)                                   to a Canadian Borrower:  (i) Floating Rate Advances, U.S. Base Rate Advances and LIBOR Advances on the occasion of any Borrowing; (ii) in the case of a BA Lender, Bankers’ Acceptances or, in the case of a Non-BA Lender, BA Equivalent Notes, on the occasion of any BA Issuance; and (iii) Letters denominated in U.S. Dollars or Canadian Dollars on the occasion of any Issue;  and

 

(b)                                  to a U.S. Borrower; (i) U.S. Base Rate Advances and LIBOR Advances on the occasion of any Borrowing; and (ii) Letters denominated in U.S. Dollars on the occasion of any Issue.

 

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provided that for all purposes of this Agreement and notwithstanding any other provision hereof:  (i) (A) only the Canadian Lenders shall make their Pro Rata Share of the Accommodations contemplated in Section 2.2(1)(a) to the Canadian Borrowers, and (B) only the Canadian Borrowers shall repay the Outstandings in respect of the Accommodations made to them pursuant to Section 2.2(1)(a) and all accrued and unpaid interest thereon to the Canadian Lenders through remitting payments to the appropriate Payment Account, as communicated to the Canadian Borrowers by the Agent from time to time; and (ii) (A) only the U.S. Lenders shall, subject to Section 2.2(2), make their Pro Rata Share of the Accommodations contemplated in Section 2.2(1)(b) to the U.S. Borrowers, and (B) only the U.S. Borrowers shall repay the Outstandings in respect of the Accommodations made to them pursuant to Section 2.2(1)(b) and all accrued and unpaid interest thereon to the U.S. Lenders through remitting payments to the appropriate Payment Account, as communicated to the U.S. Borrowers by the Agent from time to time.

 

(2)                                   For certainty, no U.S. Lender Group shall make Accommodations to Canadian Borrowers. So long as any U.S. Lender Group or its Assignee consists only of a U.S. Lender, then with respect to any Accommodation to a U.S. Borrower, the Agent shall calculate each U.S. Lender’s Pro Rata Share of such Accommodation based on the relative Lender Group Commitments of all Lender Groups at the time of such Accommodation. If such calculation reveals that the Lender Groups other than the U.S. Lender Groups are not required to make available any part of such Accommodation because doing so would cause them to exceed their Lender Group Commitments, then the applicable U.S. Lender Groups shall, on the terms and conditions of this Agreement and so long as an appropriate portion of the Lender Group Commitment of such U.S. Lender Groups remains available, make the remaining portion of any such Accommodation to such U.S. Borrower, with the intent being that the Borrowers shall have the full amount of the Commitment available to them even though Accommodations made to U.S. Borrowers may, as a result of this Section 2.2(2), not be made by the U.S. Lenders in accordance with the Pro Rata Shares of their respective Lender Groups.

 

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2.3                                Commitments and Facility Limits.

 

(1)                                   The Borrowers shall at all times cause (i) the Total Outstandings of the Lenders under the Credit Facility to be no greater than the Commitment and (ii) the aggregate amount in U.S. Dollars of all Outstandings of a Lender Group under the Credit Facility calculated by reference to the Equivalent U.S. $ Amount in the case of Outstandings in currencies other than U.S. Dollars, to be no greater than the Lender Group Commitment of such Lender Group, it being acknowledged that the Borrowers shall not be in Default, or required to take any corrective action, under this Section 2.3(1) if this provision is violated solely by reason of a Lender being a Defaulting Lender under Section 3.1(2) and other Lenders being Contributing Lenders under Section 3.1(2).

 

(2)                                   Any portion of the Commitment which is not utilized by the Borrowers on Closing may be utilized from time to time thereafter on the terms and conditions of this Agreement.

 

(3)                                   All Advances, Bankers’ Acceptances, BA Equivalent Notes and Letters requested hereunder shall be made available to a Borrower in accordance with Article 3, 4 and 5, respectively.

 

2.4                                Use of Proceeds.

 

The Borrowers shall use the proceeds of the Accommodations under the Credit Facility for general corporate purposes, including in respect of working capital and for capital expenditures, acquisitions and investments permitted in accordance with the terms of this Agreement, and toward financing the construction and operation of additional manufacturing and processing facilities; provided, however, that a Borrower shall not be entitled to use the proceeds of the Accommodations under the Credit Facility for the purposes of a take-over bid by such Borrower or in which such Borrower is involved, in respect of which the board of directors or comparable body of the target Person has not recommended acceptance of such take-over bid to the shareholders or comparable owners of the target Person.

 

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2.5                                Repayment of Facilities.

 

Unless demand is earlier made pursuant to Section 9.1, the Borrowers shall repay, and there shall become due and payable on the Maturity Date, the Outstandings and all accrued and unpaid interest thereon.

 

2.6                                Mandatory Repayments.

 

(1)                                   If, on any day, the aggregate amount in U.S. Dollars of all Outstandings of a Lender Group under the Credit Facility, calculated by reference to the Equivalent U.S. $ Amount in the case of Outstandings in currencies other than U.S. Dollars, exceeds the Lender Group Commitment of such Lender Group for any reason other than a Lender being a Defaulting Lender under Section 3.1(2) and other Lenders being Contributing Lenders under Section 3.1(2), the Borrowers shall on that day:  (i) repay Borrowings; or (ii) make a payment to the Agent and irrevocably authorize and direct the Agent to apply such payment as a repayment of any LIBOR Advance to any Borrower on the last day of the Interest Period applicable thereto; or (iii) make a payment to the Agent and irrevocably authorize and direct the Agent to apply such payment as a repayment of the Borrowers’ reimbursement obligation in respect of any BA Issuance or Issue, on the next contract maturity date; or (iv) make a repayment referred to in clause (i), a payment referred to in (ii) and/or a payment referred to in clause (iii), in all cases so that the aggregate amount in U.S. $ of all Outstandings of a Lender Group under the Credit Facility, calculated by reference to the Equivalent U.S. $ Amount in the case of Outstandings in currencies other than U.S. Dollars, after the repayment referred to in clause (i), and less the amount of any payments held by the Agent pursuant to clauses (ii) and (iii), will not exceed the Lender Group Commitment of such Lender Group.

 

(2)                                   If, on any day, the Total Outstandings of the Borrowers to the Lenders under the Credit Facility exceed the Commitment, the Borrowers shall on that day: (i) repay Borrowings; or (ii) make a payment to the Agent and irrevocably authorize and direct the Agent to apply such payment as a repayment of any LIBOR Advance to any Borrower on the last day of the Interest Period applicable thereto; (iii) make a payment to the Agent and irrevocably authorize and direct the Agent to apply such payment as a prepayment of the

 

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Borrowers’ reimbursement obligation in respect of any BA Issuance, on the next contract maturity date; or (iv) make a repayment referred to in clause (i), a payment referred to in clause (ii) and/or a payment referred to in clause (iii), in all cases so that the Total Outstandings under the Credit Facility after the repayment referred to in clause (i), and less the amount of any payments held by the Agent pursuant to clauses (ii) and (iii), will not exceed the Commitment.

 

2.7                                Cancellation of Undrawn Portion of Commitment.

 

(1)                                   IPSCO may, subject to the provisions of this Agreement, reduce the amount of the Commitment under the Credit Facility, in whole or in part, without penalty or premium but subject, where applicable, to unwinding or redeployment costs to be charged to IPSCO, upon at least 30 days’ prior written notice to the Agent stating the proposed date of such permanent reduction, the aggregate principal amount of the reduction; and if such notice is given, the Borrowers shall, on the date specified in IPSCO’s notice, pay the Agent for the account of the relevant Lenders in accordance with such notice the amount, if any, by which the Outstandings under the Credit Facility exceed the proposed reduced amount of the Commitment and pay to the Agent for the account of the relevant Lenders all interest on the excess amount accrued to the date of such reduction. Each partial reduction of the Commitment shall be in a minimum aggregate principal amount of U.S. $5,000,000 and in an integral multiple of U.S. $100,000. Each partial reduction shall reduce the maximum Lender Group Commitment of each Lender Group pro rata based on the Lender Group Commitments of all the Lender Groups at such time.

 

(2)                                   A Borrower may not pursuant to this Section prepay: (i) a LIBOR Advance except on the last day of the Interest Period applicable thereto; or (ii) the amount of any BA Issuance, except on the contract maturity date for the relevant Bankers’ Acceptance or BA Equivalent Note.

 

(3)                                   The Credit Facility shall revolve and no payment under the Credit Facility shall, of itself, reduce the Commitment.

 

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2.8                                Additional Commitment.

 

(1)                                   At any time and from time to time following the Closing, IPSCO may, at its sole option, by notice in writing (the “Request Notice”) to the Agent, request that the Commitment be increased by an amount not to exceed U.S. $50,000,000 (the “ Commitment Increase Amount ”), provided that no Lender Group shall be under any obligation to increase the amount of its Lender Group Commitment or participate in any Commitment Increase Amount. Any Request Notice delivered pursuant to this Section 2.8(1) shall specify (a) the requested Commitment Increase Amount; and (b) the effective date for such Commitment Increase Amount, which date shall not be less than 21 nor more than 180 days following the date of receipt of such Request Notice by the Agent. A request that the Lender Groups increase their Lender Group Commitment shall be made on a pro rata basis to the respective Lender Groups based on the proportion that the Lender Group Commitment of each such Lender Group bears to the Lender Group Commitment of all Lender Groups at such time. Upon receipt of the aforesaid Request Notice by the Agent, the Agent shall, as soon as reasonably practicable, by written notice (the “ Lender Group Notice ”) to each Lender Group, notify them of the Request Notice, and advise each such Lender Group of its Pro Rata Share of the requested Commitment Increase Amount and of each such Lender Group’s right to elect to commit to more than its Pro Rata Share of such requested Commitment Increase Amount should it choose to do so.

 

(2)                                   Each Lender Group shall provide notice in writing (a “ Response Notice ”) to the Agent as to whether it wishes to participate and to increase its respective Pro Rata Share of the Commitment Increase Amount within 10 days of delivery by the Agent of the Lender Group Notice. If any Lender Group does not provide its Response Notice within such 10 day period, such Lender Group shall be deemed to have refused to participate in the Commitment Increase Amount. Not more than 2 Business Days following (a) the last day for receipt by the Agent of each such Response Notice; or (b) if all such relevant Lender Groups have provided such Response Notice, the day on which the last of such Response Notices shall have been received by the Agent, the Agent shall advise IPSCO and each such Lender Group whether each such Lender Group has consented to participate in the requested Commitment Increase Amount, or has refused or is deemed to

 

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have refused (by virtue of its failure to deliver the Response Notice as aforesaid) to participate in such requested Commitment Increase Amount, and the aggregate amount by which all such Lender Groups have agreed to increase their respective Lender Group Commitments in respect thereof.

 

(3)                                   Subject to, and as provided for in Section 2.8(5), in the event that:

 

(a)                                   the Commitment Increase Amount has been accepted by all of the Lender Groups in an amount not less than each applicable Lender Groups’ Pro Rata Share thereof, the Lender Group Commitment of each such Lender Group shall be increased by an amount equal to their respective Pro Rata Shares of such Commitment Increase Amount; or

 

(b)                                  the Commitment Increase Amount has been accepted by some, but not all, of the applicable Lender Groups, (i) with respect to each such consenting Lender Group, the relevant Lender Group Commitment of each such Lender Group shall be increased by an amount equal to the amount of such Commitment Increase Amount stipulated in the respective Response Notices delivered by such consenting Lender Groups as the amount of the Commitment Increase Amount which such applicable Lender Group has agreed to assume, provided that if the aggregate amount of such accepted Commitment Increase Amounts exceeds the requested Commitment Increase Amount, then each such consenting Lender Group shall have its respective Lender Group Commitment increased by an amount equal to that portion of the Commitment Increase Amount that the Lender Group Commitment of each such consenting Lender Group bears to the aggregate Lender Group Commitments of all such consenting Lender Groups but in no event in excess of the amount of the Commitment Increase Amount agreed to be assumed by the respective consenting Lender Group in its Response Notice; and (ii) with respect to all non-consenting Lender Groups, the relevant Lender Group Commitment of all such non-consenting Lender Groups shall not be increased.

 

(4)                                   If the full amount of the Commitment Increase Amount is not assumed by the consenting Lender Groups in accordance with Section 2.8(3), then IPSCO may seek and arrange for

 

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one or more other financial institutions to provide the balance of such Commitment Increase Amount, provided that the Agent (and for greater certainty, not any other existing Lenders or Lender Groups) shall have the right, acting reasonably, to approve of any one or more of such other financial institutions, and participation by any one or more of such other financial institutions shall be subject to the terms of Section 2.8(5).

 

(5)                                   Any increase in the Commitment is subject to the conditions precedent that (a) the Borrowers, the Guarantors, the Lenders and any lender that is not theretofore a Lender, shall have executed and delivered any documentation reasonably required to evidence such increase in the Commitment hereunder and, in the case of a lender not theretofore a Lender, the addition of such lender as a Lender and party to this Agreement, all in form and substance satisfactory to the Agent and acknowledged by the Agent and each Borrower and Guarantor; (b) all representations and warranties contained in Article 7 shall be true and correct in all material respects on the date that such Commitment Increase Amount is to take effect other than those representations and warranties which by their terms are stated to be made as of a specific date, which representations and warranties shall be true and correct as of such specific date; (c) the amount of any such Commitment Increase Amount shall be not less than U.S. $10,000,000 and shall not cause the aggregate Commitment to exceed U.S. $200,000,000; (d) IPSCO Consolidated shall be in compliance with all financial covenants set out in Section 8.3 hereof; and (e) no Default or Event of Default shall have occurred and be continuing as of the date that the Commitment Increase Amount is to take effect and the initial Accommodation in respect thereof.

 

(6)                                   Upon satisfaction of all of the terms and conditions of this Section 2.8, including Section 2.8(5), from and after the effective date for the Commitment Increase Amount, each existing Lender Group and any additional lender approved to act as a Lender shall have their Lender Group Commitments adjusted to reflect their respective shares of the Commitment Increase Amount, or such other lender shall become a Lender Group Commitment as provided for above and shall have all rights and obligations of the Lender with respect to its Lender Group Commitment.

 

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2.9                                Standby Fee.

 

IPSCO shall pay to the Agent for the benefit of the Lenders, a fee (the “Standby Fee”) equal to the Applicable Margin, calculated on the basis of a year of 365 days or 366 days in the case of a leap year, of the average daily difference between the Commitment and the Total Outstandings under the Credit Facility, calculated daily in U.S. Dollars and payable in U.S. Dollars quarterly in arrears on the third Business Day of the calendar quarter following the calendar quarter for which such Standby Fee is payable, and so long as such Commitment shall be undrawn.

 

2.10                         Agency Fee.

 

Upon the Closing and on each anniversary of such date thereafter so long as the Commitment shall be available to be drawn, IPSCO shall pay to the Agent, in advance, the agency fee (the “Agency Fee”) stipulated in the Agency Fee Agreement. Each such payment is non-refundable and fully earned when due.

 

2.11                         Evidence of Debt and Determination of Interest Rates and Fees.

 

(1)                                   The indebtedness of the Borrowers in respect of all Accommodations hereunder shall be, absent manifest error, rebuttably presumed to be correctly evidenced by the account records maintained by the Agent. The failure of the Agent to correctly record any amount or date shall not, however, affect the obligation of the Borrowers to pay amounts due hereunder to the Agent or any of the Lenders in accordance with this Agreement.

 

(2)                                   Wherever the determination of any interest rate or fee payable pursuant to this Agreement in respect of any Accommodation hereunder may by its terms be dependent upon the calculation of any financial ratio, the financial ratio shall be, absent manifest error, rebuttably presumed to be correctly evidenced by the amount of such financial ratio as stated in the Compliance Certificate delivered to the Agent for the most recently completed Financial Quarter. The application by the Agent of such stated financial ratio in the calculation of any such interest rate or fee shall not, however, affect the obligation of the Borrowers to pay amounts of interest or fees due hereunder to the Agent or any of the Lenders on the basis of the actual amount of any such financial ratio in accordance

 

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with the terms of this Agreement. Subject to Section 2.11(3), all changes of interest or fees based on changes to any financial ratio shall be effective on the first Business Day of the third calendar month following the most recently completed Financial Quarter.

 

(3)                                   If the Borrowers fail to deliver a Compliance Certificate to the Agent within the time period specified in Section 8.1(1)(d), then, whenever the determination of any interest rate or fee payable pursuant to this Agreement is dependent on the calculation of a financial ratio that would otherwise be the subject of Compliance Certificate, the financial ratio that will be determinative of such interest rate or fee will be deemed to be the financial ratio that results in the highest interest rate or fee payable pursuant to this Agreement, in all cases, until the Compliance Certificate is delivered to the Agent, following which the financial ratios prima facie evidenced thereby shall thereafter be determinative of interest rates or fees payable pursuant to this Agreement.

 

2.12                         Adjustment of Total Pro Rata Shares

 

It is the intention of the parties that the ultimate credit risk and exposure of any Lender Group in respect of the Credit Facility be in accordance with each Lender Group’s Pro Rata Share of the Commitment hereunder. Accordingly, upon the Total Outstandings becoming due and payable hereunder, the Agent shall allocate the Total Outstandings among the Lender Groups so that each Lender Group bears its respective Pro Rata Share of the Total Outstandings. Without limiting the generality of the foregoing, if at any time after the Credit Facility has been terminated, the Total Outstandings are not borne by the Lender Groups in accordance with their respective Pro Rata Shares, then each Lender Group that holds Outstandings in excess of its Pro Rata Share (the “Surplus Lender Group”) shall, as of the date of termination of the Credit Facility, sell to each Lender Group that has deficit Outstandings relative to its Pro Rata Share (the “Deficit Lender Group”), and the Deficit Lender Groups shall purchase from the Surplus Lender Groups for cash, at par, without representation or warranty from or recourse to the Surplus Lender Groups, an interest in such of the Outstandings from the Surplus Lender Groups so as to result in the percentage of the Total Outstandings from each Lender Group being equal to the correct Pro Rata Share of each such Lender Group, provided that (i) all interest and fees payable on Accommodations shall be for the account of the Surplus Lender Group (or the

 

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applicable member thereof) that originally extended such Accommodation or issued or participated in any related Letters, Bankers’ Acceptances or BA Equivalent Notes, as the case may be, until the date on which the amount of the Outstandings is purchased by the Deficit Lender Group, and (ii) if any purchase of Outstandings required to be made pursuant to this provision is not made on the date of termination of the Credit Facility, then at the time that such purchase is actually completed, the Deficit Lender Group shall be required to pay to the Surplus Lender Group, to the extent not paid to the Surplus Lender Group by the applicable Borrower in accordance with the terms of this Agreement, interest on the principal amount of the Outstandings required to be purchased for each day from and including the day upon which such purchase of the Outstandings was required to be completed to but excluding the date of actual payment by the Deficit Lender Group of such Outstandings, at the rate equal to the Floating Rate, calculated daily.

 

ARTICLE 3
LOAN ADVANCES

 

3.1                                The Advances.

 

(1)                                   Each of the Lenders severally, but not jointly, agrees, on the terms and conditions of this Agreement, to make Advances to a Borrower under the Credit Facility on the Closing or thereafter from time to time, on any Business Day prior to the Maturity Date. Each Lender shall, subject to Section 2.2(2), make available to the Agent its Pro Rata Share of the principal amount of each Advance in the appropriate currency, prior to 11:00 a.m. (Toronto time) on the date of the Advance. Unless the Agent has been notified by a Lender at least 2 Business Days prior to the date of an Advance that such Lender will not make available to the Agent its Pro Rata Share of such Advance (or, in the case of a U.S. Lender Group, its share of such Advance, if such share is other than its Pro Rata Share), the Agent may assume that such Lender has made such portion of the Advance available to the Agent on the date of the Advance in accordance with the provisions hereof and the Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Agent has made such assumption, to the extent such Lender shall not have so made its Pro Rata Share of the Advance (or, in the case of a U.S.

 

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Lender Group, its share of such Advance, if such share is other than its Pro Rata Share) available to the Agent, such Lender agrees to pay to the Agent, forthwith on demand, such Lender’s Pro Rata Share of the Advance (or, in the case of a U.S. Lender Group, its share of such Advance, if such share is other than its Pro Rata Share) and all reasonable costs and expenses incurred by the Agent in connection therewith, together with interest thereon at the rate payable hereunder by the Borrower in respect of such Advance for each day from the date such amount is made available to the Borrower until the date such amount is paid or repaid to the Agent; provided, however, that notwithstanding such obligation, if such Lender fails so to pay, the Borrower shall repay such amount to the Agent forthwith after demand therefor by the Agent, together with interest thereon at the rate payable hereunder by the Borrower in respect of such Advance for each day from the date such amount is made available to the Borrower until the date such amount is paid or repaid to the Agent. The amount payable by each Lender to the Agent pursuant to this Section 3.1(1) shall be set forth in a certificate delivered by the Agent to such Lender and the Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall constitute prima facie evidence of such amount payable. If such Lender makes the payment to the Agent required herein, the amount so paid shall constitute such Lender’s Pro Rata Share of the Advance (or, in the case of a U.S. Lender Group, its share of such Advance, if such share is other than its Pro Rata Share) for purposes of this Agreement and shall entitle such Lender to all rights and remedies against the Borrower in respect of such Advance. The failure of any Lender to make available to the Agent its Pro Rata Share of an Advance (or, in the case of a U.S. Lender Group, its share of such Advance, if such share is other than its Pro Rata Share) shall not relieve any other Lender of its obligation hereunder to make available to the Agent its Pro Rata Share of the Advance (or, in the case of a U.S. Lender Group, its share of such Advance, if such share is other than its Pro Rata Share) on the date thereof.

 

(2)                                   If any Lender fails to make available to the Agent its Pro Rata Share of any Advance (or, in the case of a U.S. Lender Group, its share of such Advance, if such share is other than its Pro Rata Share) as required (such Lender in this Section called the “Defaulting Lender”) and the Agent has not made the Advance to the Borrower pursuant to Section

 

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3.1(1), the Agent shall forthwith give notice of such failure by the Defaulting Lender to the relevant Borrower and the other Lenders and such notice shall state that any Lender may make available to the Agent all or any portion of the Defaulting Lender’s Pro Rata Share of such Advance (or, in the case of a U.S. Lender Group, its share of such Advance, if such share is other than its Pro Rata Share) (but in no event shall any other Lender or the Agent be obligated 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 (in this Section 3.1(2) 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 Pro Rata Share of such Advance based on the Contributing Lenders’ relative Lender Group Commitments 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 payable hereunder by the Borrower in respect of such Advance for each day 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. In addition to such interest, the Borrower shall pay all amounts owing by the Borrower to the Defaulting Lender hereunder to the Agent for the account of the Contributing Lenders until such time as the Defaulting Lender pays to the Agent for the account of the Contributing Lenders all amounts advanced by the Contributing Lenders on behalf of the Defaulting Lender.

 

(3)                                   Each Borrowing shall consist of one or more Types of Advances made to a Borrower on the same day and, in the case of LIBOR Advances, having the same Interest Period. Each Type of Advance shall be in the aggregate minimum amount and in an integral multiple of the amount set forth below:

 

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(a)                                   a Floating Rate Advance shall be in an aggregate amount not less than Cdn. $5,000,000 and in an integral multiple of Cdn. $100,000;

 

(b)                                  a U.S. Base Rate Advance shall be in an aggregate amount not less than U.S. $5,000,000 and in an integral multiple of U.S. $100,000; and

 

(c)                                   a LIBOR Advance shall be in an aggregate amount not less than U.S. $5,000,000 and in an integral multiple of U.S. $100,000, provided that a Borrower may not select a LIBOR Advance if the making of such LIBOR Advance would result in the Borrowers having in excess of ten LIBOR Advances outstanding at any one time.

 

(4)                                   Until repaid in full or converted in accordance with this Agreement, each Advance shall be (i) the Type of Advance specified in the applicable Borrowing Notice or Election Notice; or (ii) if no Borrowing Notice or Election Notice is applicable, the Type of Advance specified in Sections 3.3(1)(a) and 3.3(1)(b).

 

3.2                                Procedure for Borrowing.

 

Each Borrowing shall be made on notice (a “Borrowing Notice”) given by a Borrower to the Agent not later than 12:00 noon (Toronto time), in the case of: (i) a Floating Rate Advance or a U.S. Base Rate Advance, at least 2 Business Days prior to the date of the proposed Borrowing; and (ii) a LIBOR Advance, at least 3 Business Days prior to the date of the proposed Borrowing, which Borrowing Notice shall be irrevocable and binding on the Borrower delivering such Borrowing Notice. Each Borrowing Notice for Accommodations to be made to U.S. Borrowers must be issued concurrently to the Agent and to Toronto Dominion (Texas) LLC at the addresses set out in Schedule K hereto and, upon receipt of a Borrowing Notice, the Agent shall promptly forward a copy thereof to the relevant Lenders. Each Borrowing Notice shall be in substantially the form of Schedule G hereto (or shall be made by telephone confirmed promptly in writing, providing the same information as would be contained in Schedule G hereto) and shall specify: (i) the requested date of such Borrowing; (ii) the Type of Advances comprising such Borrowing; (iii) the aggregate amount of such Borrowing; and (iv) in the case of a LIBOR Advance, the initial Interest Period applicable to such Advance. Upon fulfilment of the applicable conditions

 

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set forth in Article 6: (i) the Agent will, in the case of a Canadian Borrower, make such funds available to the Canadian Borrower in immediately available funds by crediting or causing the crediting of its Borrower’s Canadian Dollar Account or Borrower’s U.S. Dollar Account, as applicable; or (ii) the Agent will, in the case of a U.S. Borrower, make such funds available to the Borrower in immediately available funds by crediting or causing the crediting of its Borrower’s U.S. Dollar Account. A Borrower shall not in any Borrowing Notice select an Interest Period which conflicts with the definition of Interest Period specified in Section 1.1 or with the repayments provided in Section 2.5.

 

3.3                                Interest on Advances.

 

(1)                                   Each Advance shall bear interest at the rate applicable to such Type of Advance determined in accordance with this Section: (i) in the case of a Floating Rate Advance or U.S. Base Rate Advance, from and including the date such Advance is made or converted from another Type of Advance or Accommodation, as applicable, to but excluding the date on which such Advance is repaid in full or is converted to another Type of Advance or Accommodation in accordance with this Agreement; and (ii) in the case of a LIBOR Advance, from and including the first day of the applicable Interest Period to but excluding the last day of such Interest Period. Subject to Section 3.3(2) and 10.2, each Advance shall bear interest, and such interest shall be calculated and payable, in the following manner:

 

(a)                                   Floating Rate Advances . A Floating Rate Advance shall bear interest at a rate per annum equal at all times to the Floating Rate in effect from time to time. Such interest shall be calculated (but not compounded) daily and payable monthly in arrears on the third Business Day of each month following the month for which such interest is payable and on the Maturity Date.

 

(b)                                  U.S. Base Rate Advances to Canadian Borrowers . A U.S. Base Rate Advance to a Canadian Borrower shall bear interest at a rate per annum equal at all times to the U.S. Base Rate in effect from time to time. Such interest shall be calculated (but not compounded) daily and payable monthly in arrears on the third Business

 

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Day of each month following the month for which such interest is payable and on the Maturity Date.

 

(c)                                   U.S. Base Rate Advances to U.S. Borrowers . A U.S. Base Rate Advance to a U.S. Borrower shall bear interest at a rate per annum equal at all times to the U.S. Base Rate in effect from time to time. Such interest shall be calculated (but not compounded) daily and payable monthly in arrears on the third Business Day of each month following the month for which such interest is payable and on the Maturity Date.

 

(d)                                  LIBOR Advances . A LIBOR Advance shall bear interest at a rate per annum equal at all times during each Interest Period for such LIBOR Advance to the LIBOR Rate for such Interest Period. Such interest shall be calculated (but not compounded) daily and payable: (i) on the last day of each three month period in each Interest Period and on the last day of each Interest Period; and (ii) on the date such LIBOR Advance becomes due and payable in full.

 

(2)                                   With each announced change in any of the variable rates of interest used as a component for determining any rate of interest payable under this Agreement, there shall be a corresponding change in the applicable rate of interest payable under this Agreement based on the change in such variable rate, all without necessity of prior notice thereof to any Borrower or to any other Person.

 

3.4                                Conversions and Elections Regarding Types of Advances and Interest Rates.

 

(1)                                   Advances may be converted from time to time from one Type to another, at the election of a Borrower or automatically in accordance with the provisions of this Section. A Borrower may from time to time elect (i) to convert any Advances to another Type or change the type of interest rate applicable thereto; (ii) to have any LIBOR Advance continued as such Type of Advance by electing an additional Interest Period; or (iii) in the case of a Canadian Borrower, to change the currency of any Advances or convert any Advances to Bankers’ Acceptances or BA Equivalent Notes, subject in each case to the provisions of Sections 3.1(3) and 3.5 and to the following provisions:

 

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(a)                                   Floating Rate Advances . A Canadian Borrower may elect to convert a Floating Rate Advance as of any Business Day to a LIBOR Advance or a U.S. Base Rate Advance or a Bankers’ Acceptance (or BA Equivalent Note).

 

(b)                                  U.S. Base Rate Advance . A Borrower may elect to convert a U.S. Base Rate Advance as of any Business Day to a LIBOR Advance or, in the case of a Canadian Borrower, to a Floating Rate Advance or a Bankers’ Acceptance (or BA Equivalent Note).

 

(c)                                   LIBOR Advance . A Borrower may elect, effective on the last day of the then current Interest Period applicable thereto: (i) to convert a LIBOR Advance to a U.S. Base Rate Advance or, in the case of a Canadian Borrower, to a Floating Rate Advance or a Bankers’ Acceptance (or BA Equivalent Note); or (ii) to have such LIBOR Advance continued as such Type of Advance for an additional Interest Period. If a Borrower has made no such election, on the expiry of the then current Interest Period, such LIBOR Advance shall be automatically converted to a U.S. Base Rate Advance, effective on the last day of such Interest Period.

 

(2)                                   Each such election shall be made on notice (an “Election Notice”) given by a Borrower to the Agent not later than 12:00 noon (Toronto time): (i) in the case of an election to convert an Advance to, or continue an Advance as, a LIBOR Advance at least 3 Business Days before the effective date of such election; and (ii) in the case of an election to convert an Advance to a Floating Rate Advance, a U.S. Base Rate Advance or a Bankers’ Acceptance (or BA Equivalent Note), at least 2 Business Days before the effective date of such election. Each Election Notice shall be substantially in the form of Schedule H hereto (or shall be made by telephone promptly confirmed in writing providing the same information as would be contained in Schedule H hereto) and shall specify, with respect to the outstanding Advances to which such Election Notice applies: (i) if the Type of such Advance is to be converted in whole or in part, the amount of such Advance to be converted, the new Type of Advance selected, the effective date of such conversion and, if the new Type of Advance selected is a LIBOR Advance, the duration of the initial

 

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Interest Period applicable thereto; or (ii) if such Advance is a LIBOR Advance which is to continue as such Type of Advance for an additional Interest Period in whole or in part, the amount of such Advance to be continued, the duration of the additional Interest Period and the date on which such Interest Period is to begin. A Borrower shall not in any Election Notice select an Interest Period which conflicts with the definition of Interest Period specified in Section 1.1 or with the repayments provided for in Section 2.5. In cases where a Canadian Borrower wishes to convert a Type of Advance to Bankers’ Acceptances or BA Equivalent Notes, the Election Notice shall be accompanied by a BA Issuance Notice issued in accordance with Section 4.2. If the amount of any Advance cannot be converted to an aggregate Face Amount of Bankers’ Acceptances and BA Equivalent Notes which may be drawn as Bankers’ Acceptances and BA Equivalent Notes under this Agreement, then the amount which cannot be so converted shall, subject to Section 3.1(3)(a), thereafter continue to be outstanding as a Floating Rate Advance.

 

(3)                                   Any conversion of an Advance under this Section shall not constitute a repayment under Section 2.5 or 2.6.

 

3.5          Circumstances Requiring Floating Rate Pricing.

 

If the Lenders or any one or more of them determine in good faith, and the Agent notifies the Borrowers that: (i) by reason of circumstances affecting financial markets inside or outside Canada, deposits of U.S. Dollars are unavailable to the Lenders or any one or more of them; (ii) adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided in the definition of LIBOR or U.S. Base Rate, as the case may be; (iii) the making or continuation of any U.S. Dollar Advances has been made impracticable (x) by the occurrence of a contingency (other than a mere increase in rates payable by the Lenders or any one or more of them to fund the Advances) which materially adversely affects the funding of the Credit Facility at any interest rate computed on the basis of the LIBOR or the U.S. Base Rate, as the case may be, or (y) by reason of a change since the date of this Agreement in any applicable Law or in the interpretation thereof by any Governmental Entity which affects the Lenders or any one or more of them or any relevant financial market and which results in the LIBOR or the U.S. Base Rate, as the case may be, no longer representing the effective cost to the Lenders or any one or more of

 

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them of deposits in such market for a relevant Interest Period or for Advances outstanding as U.S. Base Rate Advances; or (iv) any change since the date of this Agreement to any present Law, or any future Law, or any change since the date of this Agreement therein or in the interpretation or application thereof by any Governmental Entity, has made it unlawful for the Lenders or any one or more of them to make or maintain or to give effect to its obligation in respect of U.S. Dollar Advances as contemplated hereby, then,

 

(a)                                   the right of a Borrower to select any affected Type of U.S. Dollar Advance shall be suspended until the affected Lenders determine that the circumstances causing such suspension no longer exist and the Agent so notifies the Borrowers;

 

(b)                                  if any affected Type of U.S. Dollar Advance is not yet outstanding, any applicable Borrowing Notice shall be cancelled and the Advance requested shall not be made;

 

(c)                                   if any LIBOR Advance is already outstanding at any time when the rights of a Borrower to select LIBOR Advances is suspended, it and all other LIBOR Advances in the same Borrowing shall, if such Borrower has the right to select U.S. Base Rate Advances at such time, become U.S. Base Rate Advances on the last day of the then current Interest Period applicable thereto (or on such earlier date as may be required to comply with any applicable Law) or, if such Borrower does not have the right to select U.S. Base Rate Advances at such time and such Borrower is a Canadian Borrower, such LIBOR Advance shall become a Floating Rate Advance on the last day of the then current Interest Period applicable thereto (or on such earlier date as may be required to comply with any applicable Law) in a principal amount equal to the Equivalent Cdn. $ Amount of such LIBOR Advance determined on the date on which such Advance becomes denominated in Canadian Dollars; and

 

(d)                                  if any relevant U.S. Dollar Advance is already outstanding at any time when the right of a Canadian Borrower to select U.S. Dollar Advances is suspended, it and all other U.S. Dollar Advances included in the same Borrowing shall become a Floating Rate Advance: (i) in the case of a LIBOR Advance, on the last day of the

 

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then current Interest Period applicable thereto (or on such earlier date as may be required to comply with any applicable Law); and (ii) in the case of a U.S. Base Rate Advance, immediately, in a principal amount equal, in each case, to the Equivalent Cdn. $ Amount of the related U.S. Dollar Advance determined on the date on which such Advance becomes denominated in Canadian Dollars.

 

ARTICLE 4
BANKERS’ ACCEPTANCES

 

4.1          Acceptances and Drafts.

 

Each of the Canadian Lenders severally agrees on the terms and conditions of this Agreement:  (i) if such Canadian Lender is a BA Lender,  to create acceptances (“Bankers’ Acceptances”) by stamping Drafts of a Canadian Borrower under the Credit Facility; or (ii) if such Canadian Lender is a Non-BA Lender, to purchase BA Equivalent Notes of such Canadian Borrower under the Credit Facility, in each case on the Closing or thereafter from time to time on any Business Day at least one month prior to the Maturity Date, which Drafts have an aggregate Face Amount equal to such Canadian Lender’s Pro Rata Share of the total Accommodation being made by way of Bankers’ Acceptances or BA Equivalent Notes, except that, if the Face Amount of a Bankers’ Acceptance in the case of a BA Lender, or the Face Amount of a BA Equivalent Note, in the case of a Non-BA Lender, would not be an integral multiple of Cdn. $100,000, such Face Amount shall be increased or reduced by the Agent in its sole discretion and in accordance with normal market practices, to the nearest integral multiple of Cdn. $100,000. Bankers’ Acceptances shall be created through the stamping of Drafts by a BA Lender upon a Canadian Borrower paying the BA Stamping Fee, which shall be deducted by each BA Lender from the proceeds it receives from the sale of such Bankers’ Acceptances. BA Equivalent Notes shall be purchased by each Non-BA Lender upon a Canadian Borrower paying the BA Stamping Fee, which shall be deducted by each Non-BA Lender from the purchase price it pays for such BA Equivalent Notes. In each case, following deduction of the BA Stamping Fee, each BA Lender and Non-BA Lender will remit the net proceeds to the Agent and the Agent shall credit such net proceeds to the appropriate Borrower’s Canadian Dollar Account. The Total Outstandings after any BA Issuance shall not exceed the Commitment.

 

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4.2          Procedure for BA Issuance.

 

(1)                                   Each BA Issuance shall be made on notice (a “BA Issuance Notice”) given not later than 12:00 noon (Toronto time) at least 2 Business Days prior to the date of the proposed BA Issuance by a Canadian Borrower to the Agent. Each BA Issuance Notice shall be in substantially the form of Schedule I hereto (or shall be made by telephone confirmed promptly in writing, providing the same information as would be contained in Schedule I hereto) and shall specify: (i) the requested date for such BA Issuance (the “BA Issuance Date”); (ii) the aggregate Face Amount of Drafts to be stamped and BA Equivalent Notes to be purchased in Canadian Dollars; and (iii) the contract maturity date for such Drafts and BA Equivalent Notes.

 

(2)                                   Upon receipt of a BA Issuance Notice, the Agent shall be responsible for making all necessary arrangements with each of the Canadian Lenders with respect to the stamping of Bankers’ Acceptances and the purchasing of BA Equivalent Notes in the manner contemplated in this Article 4.

 

(3)                                   The BA Lenders shall purchase any of the Bankers’ Acceptances, and the Non-BA Lenders shall purchase any of the BA Equivalent Notes, pursuant to Section 4.5. The Agent shall as soon as practical deliver to a Canadian Borrower that requests a BA Issuance a notice confirming the sale of Bankers’ Acceptances and BA Equivalent Notes and specifying the net proceeds derived therefrom.

 

4.3          Form of Drafts.

 

(1)                                   Each Draft presented by a Canadian Borrower for stamping by a BA Lender and each BA Equivalent Note presented by a Canadian Borrower for purchase by a Non-BA Lender: (i) shall be in a Face Amount of not less than Cdn. $5,000,000 and in an integral multiple of Cdn. $100,000; (ii) shall be dated the date of BA Issuance; (iii) shall mature and be payable by such Canadian Borrower on a Business Day which occurs approximately one, two, three, six or nine months after the BA Issuance Date and on or prior to the Maturity Date; and (iv) in the case of a Draft, be substantially in the form of Schedule D hereto.

 

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(2)                                   Each Canadian Borrower hereby renounces, and shall not claim, any days of grace for the payment of any Bankers’ Acceptances or BA Equivalent Notes.

 

4.4                                Stamping of Drafts.

 

Not later than 12:00 noon (Toronto time) on the BA Issuance Date specified for a BA Issuance, each Canadian Lender that is a BA Lender: (i) shall complete one or more Drafts dated the date of such BA Issuance in an aggregate Face Amount equal to its Pro Rata Share of the amount of such BA Issuance and with the maturity date specified by the Canadian Borrower in its BA Issuance Notice; (ii) shall stamp the Drafts; and (iii) shall purchase the Bankers’ Acceptance(s) thereby created in the manner provided in Section 4.5.

 

4.5                                Purchase of Bankers’ Acceptances and BA Equivalent Notes.

 

(1)                                   The purchase price of any Bankers’ Acceptances and BA Equivalent Notes purchased by a Canadian Lender shall be calculated based on the BA Reference Discount Rate applicable to such Canadian Lenders on the BA Issuance Date for such Bankers’ Acceptances and BA Equivalent Notes. The purchase price for any Bankers’ Acceptances and BA Equivalent Notes purchased by a Canadian Lender shall be paid and satisfied by the Canadian Lender making payment to the Agent for the account of the appropriate Canadian Borrower of the net proceeds thereof, following the deduction of the BA Stamping Fee by such Canadian Lender, on the BA Issuance Date.

 

(2)                                   Bankers’ Acceptances purchased by a BA Lender hereunder may be held by it for its own account until maturity or sold by it at any time prior thereto in the relevant market therefor in Canada, in such BA Lender’s sole discretion.

 

4.6          Reimbursement at Contract Maturity Date.

 

(1)                                   A Canadian Borrower shall pay to the Agent for the account of each Canadian Lender in same day funds, and there shall become due and payable at 11:00 a.m. (Toronto time) on the contract maturity date for each Bankers’ Acceptance or BA Equivalent Note, an amount in Canadian Dollars equal to the Face Amount of such Bankers’ Acceptance stamped or BA Equivalent Note purchased by such Canadian Lender. A Canadian

 

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Borrower shall make each payment hereunder in respect of Bankers’ Acceptances or BA Equivalent Notes by deposit of the required funds to the Payment Account.

 

(2)                                   If any Canadian Borrower fails to pay the Canadian Lenders pursuant to Section 4.6(1), such Canadian Borrower shall be deemed to have issued a Borrowing Notice in respect of a Floating Rate Advance to be made on the contract maturity date, for an amount equivalent to the unpaid amount due and payable to the Canadian Lenders in respect of such Bankers’ Acceptance or BA Equivalent Note and the Floating Rate Advance shall bear interest: (i) for the first three days from the maturity date, or until such earlier date as a Borrowing Notice is given in accordance with Section 3.2 (including in accordance with the period for notice set forth in Section 3.2), at a per annum rate of interest equal to 115% of the Floating Rate; and (ii) thereafter at a per annum rate of interest equal to the Floating Rate, in each case until such amount is paid in full.

 

4.7          Repayments.

 

Except as required by Section 2.6 or 9.1, no repayment of Bankers’ Acceptances or BA Equivalent Notes shall be made by a Canadian Borrower to a Canadian Lender prior to the contract maturity date of such Bankers’ Acceptances as have been created or BA Equivalent Notes as have been purchased by such Canadian Lender. If a Canadian Borrower shall repay any Bankers’ Acceptances stamped or BA Equivalent Notes purchased by a Canadian Lender as required by Section 2.6 or 9.1, then (unless such repayment has been rescinded or otherwise is required to be returned by such Lender for any reason), as between that Canadian Borrower and such Canadian Lender, such Canadian Lender shall thereafter be solely responsible for the payment of the Face Amount of such Bankers’ Acceptances as have been stamped or BA Equivalent Notes as have been purchased by such Canadian Lender to the holder or holders thereof in accordance with the terms thereof.

 

4.8          Circumstances Making Bankers’ Acceptances Unavailable.

 

If the Canadian Lenders or any one or more of them (other than a Non-BA Lender) determine in good faith, and the Agent notifies the Canadian Borrowers, that by reason of circumstances affecting the money market there is no market for Bankers’ Acceptances, then the right of a Canadian Borrower to request a BA Issuance shall be suspended until the Canadian

 

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Lenders or any one or more of them determines that the circumstances causing such suspension no longer exist and the Agent so notifies the Canadian Borrowers. Any BA Issuance Notice which is outstanding at the time of such notice by the Canadian Lenders or any one or more of them (other than a Non-BA Lender) shall be deemed to be a Borrowing Notice requesting a Floating Rate Advance in a principal amount equal to the requested Face Amount in such BA Issuance Notice.

 

4.9          Presigned Draft Forms.

 

To enable a BA Lender to stamp Bankers’ Acceptances or complete Drafts in the manner specified in this Article 4, each Canadian Borrower hereby authorizes each BA Lender to complete, sign and endorse Drafts on its behalf in handwritten form or by facsimile or mechanical signature or otherwise and, once so completed, signed and endorsed, to accept them as a Bankers’ Acceptance under this Agreement in accordance with the provisions hereof. Drafts so completed, signed and endorsed and negotiated on behalf of a Canadian Borrower by any BA Lender shall bind such Borrower as fully and effectively as if so performed by an authorized officer of such Borrower. Each Draft of a Bankers’ Acceptance completed, signed or endorsed by a BA Lender shall mature on the last day of the period selected by such Borrower with respect thereto. A Canadian Borrower may also supply such BA Lender with such number of Drafts as such BA Lender may reasonably request, duly endorsed and executed on behalf of the applicable Canadian Borrower by any one or more of its officers in accordance with the applicable Canadian Borrower’s required signing authorities as evidenced by the then current borrowing by-law and resolution, certified copies of which have been delivered to the Agent and the BA Lender. Each BA Lender shall exercise such care in the custody and safekeeping of Drafts as it would exercise in the custody and safekeeping of similar property owned by it. The signatures of such officers may be mechanically reproduced in facsimile and Drafts and Bankers’ Acceptances bearing such facsimile signatures shall be binding upon the applicable Canadian Borrower as if they had been manually signed by such officers. Notwithstanding that any of the individuals whose manual or facsimile signature appears on any Draft or as one of such officers may no longer hold office at the date thereof or at the date of its acceptance by a BA Lender hereunder or at any time thereafter, any Draft or Bankers’ Acceptance so signed shall be valid and binding upon the applicable Canadian Borrower. A BA Lender shall not be liable for its

 

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failure to stamp a Bankers’ Acceptance as required hereunder if the cause of such failure is, in whole or in part, due to the failure of a Canadian Borrower to provide Drafts, duly endorsed and executed on behalf of such Canadian Borrower, on a timely basis.

 

ARTICLE 5
LETTERS

 

5.1          Letter Commitment

 

The Issuing Lender agrees on the terms and conditions of this Agreement to issue Letters denominated in Canadian Dollars or U.S. Dollars under the Credit Facility for the account of a Borrower on the date of Closing and thereafter from time to time, but not prior to the Closing, on any Business Day prior to the Maturity Date, which Letters shall be issued by the Issuing Lender in its name and on its own behalf in accordance with Section 5.2. The aggregate Face Amount of all Letters issued from time to time shall not exceed U.S. $60,000,000. Letters shall be issued by the Issuing Lender upon a Borrower paying the Issue Fee into the Payment Account. The Total Outstandings after any Issue shall not exceed the Commitment. Unless the Agent otherwise notifies the Borrowers in writing prior to the issue thereof, all Letters shall be subject to the Uniform Customs and Practice for Documentary Credits promulgated by the International Chamber of Commerce, being Publication No. 500, as amended or replaced from time to time.

 

5.2          Procedure for Issue.

 

(1)                                   Each Issue shall be made on notice (an “Issue Notice”) given by a Borrower to the Agent not later than 12:00 noon (local time at the place of Issue) at least 5 Business Days prior to the Issue Date. The Issue Notice shall be in substantially the form of Schedule J hereto (or shall be made by telephone promptly confirmed in writing, providing the same information as would be contained in Schedule J hereto), and shall specify: (i) the requested date of Issue (the “Issue Date”); (ii) the Type of Letter; (iii) the aggregate Face Amount and currency of the Letter; (iv) the expiration date of the Letter; (v) the name and address of the Beneficiary; and (vi) the purpose of the Letter. No Letter shall be issued in favour of a Beneficiary that is a bank, trust company or other financial

 

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institution without the consent of the Issuing Lender if the Letter is to be used for a purpose that is not otherwise permitted by the terms of this Agreement.

 

(2)                                   Upon receipt of an Issue Notice, the Agent shall forthwith notify the Issuing Lender of the proposed Issue Date and shall otherwise deal with such Issue Notice in the manner specified in this Article 5.

 

(3)                                   A Borrower shall not request in the Issue Notice a maturity date for a Letter which would: (i) be subsequent to the Maturity Date; or (ii) conflict, in the opinion of the Agent, with the repayments provided for in Sections 2.5 or 2.6.

 

5.3          Form of Letters.

 

(1)                                   Each Letter: (i) shall be for a Face Amount of not greater than the U.S. Dollar amount of the Commitment available for purposes of requesting the Issue of such Letter; (ii) shall be dated the Issue Date; (iii) shall have an expiration date on a Business Day, which expiration date shall be not more than 364 days after the Issue Date and, provided that if the expiration date of a Letter would exceed the Maturity Date, the applicable Borrower must post with the Issuing Lender cash collateral or letters of credit from financial institutions acceptable to the Agent equal to the full Face Amount of such Letter no later than one (1) Business Day prior to the Maturity Date; and (iv) shall comply with the definition of Letter.

 

(2)                                   No Letter shall require payment against a conforming draft to be made thereunder on the same Business Day upon which such draft is presented, if such presentation is made after 11:00 a.m. (Toronto time) on such Business Day.

 

(3)                                   Prior to the date of Issue, the Borrower shall specify a precise description of the documents and the verbatim text of any certificate to be presented by the Beneficiary which, if presented by the Beneficiary, would require the Issuing Lender to make payment under the Letter. The Issuing Lender may require changes in any such documents or certificate.

 

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5.4          Reimbursement of Amounts Drawn Under Letters of Credit.

 

(1)                                   The Borrower shall reimburse the Issuing Lender for, and there shall become due and payable at 11:00 a.m. (Toronto time) on the date specified by a Beneficiary as a drawing date under a Letter, an amount in same day funds equal to the amount to be drawn by such Beneficiary under such Letter in the currency in which such Letter is payable. The Borrower shall make such reimbursement payment by depositing the amount of such payment to the Payment Account of the Agent and the Agent shall forthwith pay such amount to the Issuing Lender.

 

(2)                                   If the Issuing Lender makes any payment under any Letter issued at the request of a Borrower and such Borrower shall not have reimbursed the Issuing Lender for such amount pursuant to Section 5.4(1): (i) the Issuing Lender shall thereafter notify the Agent of such failure and such notification shall be deemed to have been a request by the Borrower for the Agent to make a Floating Rate Advance or a U.S. Base Rate Advance, as the case may be, under the Credit Facility on the date of such request in an amount equal to the amount of such drawing; and (ii) each of the Lenders shall, on the date of such drawing, make its Pro Rata Share of such Advance under the Credit Facility and apply the proceeds thereof to the reimbursement of the Issuing Lender for the amount of such drawing.

 

(3)                                   The obligations of the Borrowers to the Issuing Lender in respect of all Letters shall rank pari passu with the obligations of the Borrowers for all other Accommodations.

 

5.5          Issue Fees.

 

(1)                                   A Borrower shall pay to the Issuing Lender: (i) a fee equal to 0.125% multiplied by the aggregate Face Amount of each Letter issued hereunder (the “LC Fronting Fee”), in payment of, inter alia its administrative charges for issuing and administering to the Letter, payable in arrears on the third Business Day of the calendar month following the month during which the applicable Letter was issued; and (ii) an Issue Fee for the period during which each Letter is outstanding. Such Issue Fees shall be payable in the currency in which such Letter is payable. Such Issue Fees shall be calculated on the basis of the Face Amount of the applicable Letter, calculated daily on the basis of a term to maturity

 

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of such Letter and a year of 365 days or 366 days in the case of a leap year, and shall be payable quarterly in arrears on the third Business Day following the end of the Financial Quarter during which the applicable Letter is issued and continuing quarterly thereafter on the same day of the month of each consecutive Financial Quarter for which such Issue Fee is payable. Upon receipt of any Issue Fee, the Issue Fee shall be paid by the Issuing Lender to the Agent and the Agent shall distribute such amount to all Lenders in accordance with their respective Pro Rata Shares. The Borrowers hereby acknowledge and agree that any Issue Fees paid by them with respect to any Letter shall not be refunded or rebated in whole or in part, whether or not any amount is drawn under any Letter and whether or not such Letter continues to be outstanding for its stated term.

 

5.6          Risk of Letters of Credit.

 

(1)                                   In determining whether to pay under a Letter, the Issuing Lender shall be responsible only to determine that the documents and certificates required to be delivered under such Letter have been delivered and that they comply on their face with the requirements of such Letter.

 

(2)                                   The obligation of the Borrower to reimburse the Issuing Lender for amounts paid by it under any Letter shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including:

 

(a)                                   any lack of validity or enforceability of any Letter;

 

(b)                                  the existence of any claim, set-off, defence or other right which such Borrower may have at any time against a Beneficiary or any transferee of any Letter (or any Persons for whom any such Beneficiary or transferee may be acting), the Agent, the Issuing Lender or any other Person, whether in connection with the Credit Documents, the transactions contemplated therein or any other transaction (including any underlying transaction between the Borrower and the Beneficiary under such Letter);

 

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(c)                                   any draft, demand, certificate or any other document presented under the Letter proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect;

 

(d)                                  payment by the Issuing Lender under the Letter against presentation of a demand, draft or certificate or other document which does not comply with the terms of the Letter, provided that such payment does not constitute gross negligence of or wilful misconduct by the Issuing Lender;

 

(e)                                   any other circumstance or happening whatsoever, which is similar to any of the foregoing; or

 

(f)                                     the fact that a Default or an Event of Default shall have occurred and be continuing.

 

As between the Borrower, the Agent and the Lenders, the Borrower assumes all risks of the acts and omissions of, or misuse of any Letter by the Beneficiary of such Letter. The Issuing Lender shall not have any responsibility for (i) the form, validity, accuracy, genuineness or legal effect of any document submitted by any Person in connection with the application for and issuance of any Letter, even if it should in fact prove to be in any or all respects invalid, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign such Letter or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they are in cipher; (iv) errors in interpretation of technical terms; (v) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter or of the proceeds thereof; (vi) the misapplication by the Beneficiary of any Letter or the proceeds of any drawing under any Letter; and (vii) any consequences arising from causes beyond the control of the Issuing Lender, including any actions by any Governmental Entity. None of clauses (i) through (vii) of this paragraph shall affect, impair, or prevent the vesting of any of the Issuing Lender’s rights or powers hereunder. Any action taken or omitted by the Issuing Lender under or in connection with any Letter or the related

 

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certificates, if taken or omitted in good faith, shall not put the Issuing Lender under any resulting liability to the Borrower provided that the Issuing Lender acts without gross negligence.

 

5.7          Repayments.

 

(1)                                   If a Borrower shall be required to repay the Accommodations pursuant to Sections 2.6 or 9.1, then the Borrower shall pay to the Issuing Lender, to the extent required pursuant thereto and in the amount provided therein, the Issuing Lender’s contingent liability in respect of the Letters outstanding hereunder on behalf of such Borrower. The Borrower shall also repay, to the extent required pursuant thereto and in the amount provided therein, the Issuing Lender’s contingent liability in respect of any Letter which is the subject matter of any order, judgment, injunction or other such determination (a “Judicial Order”) restricting payment by the Issuing Lender under and in accordance with such Letter or extending the Issuing Lender’s liability under such Letter beyond the expiration date stated therein. Payment in respect of any Letter shall be due in the currency in which such Letter is stated to be payable (the “Letter Currency”).

 

(2)                                   The Issuing Lender shall with respect to each Letter, upon the later of:

 

(a)                                   the date on which any final and non-appealable order, judgment or other such determination has been rendered or issued either terminating the applicable Judicial Order or permanently enjoining the Issuing Lender from paying under such Letter; and

 

(b)                                  the earlier of (i) the date on which either (y) the original counterpart of such Letter is returned to the Issuing Lender for cancellation or (z) the Issuing Lender is released by the Beneficiary from any further obligations in respect thereof; and (ii) the expiry (to the extent permitted by any applicable Law) of such Letter;

 

pay to the Borrower an amount in the applicable Letter Currency equal to the difference between the amount paid to the Issuing Lender pursuant to Subsection 5.7(1) and the amounts paid by the Issuing Lender under such Letter.

 

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5.8          Indemnity

 

Each Lender hereby agrees to indemnify the Issuing Lender, rateably according to its Pro Rata Share, from and against any and all Losses and Claims of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Issuing Lender in any way relating to or arising out of any Issue by the Issuing Lender, except where the Issuing Lender has acted with gross negligence or wilful misconduct.

 

5.9          Existing Letters.

 

As at the date of Closing, the Borrowers, the Agent and the Lenders acknowledge that the letters of credit and/or letters of guarantee set forth in Schedule S hereto are issued outstanding under and pursuant to the Existing Revolving Agreement, having been issued by The Toronto-Dominion Bank as issuing bank on behalf of the lenders thereunder. From and including the date of Closing, each such letter of credit or letter of guarantee shall be deemed for all purposes to have been issued as a Letter hereunder by the Issuing Lender in accordance with the provisions of this Article 5. The Canadian Borrowers and the U.S. Borrowers, as the case may be, shall pay the Issue Fees with respect to each such Letter deemed to have been issued hereunder, calculated on the basis of the letter of credit fees provided for in the Existing Revolving Agreement from and including the last date for which such letter of credit fees had been paid in respect of such letters of credit and/or letters of guarantee under the Existing Revolving Agreement to but not including the date of Closing, and calculated on the basis of the Issue Fee provided for in respect of Letters under this Agreement from and including the date of Closing and continuing thereafter. If necessary, appropriate adjustments shall be made between the Borrowers and the Lenders to ensure that the Borrowers are not required to make duplicate payments of issue fees in respect of such Letters under this Article 5 previously paid under the Existing Revolving Agreement in respect of the existing letters of credit and/or letters of guarantee set forth in Schedule S hereto.

 

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ARTICLE 6
CONDITIONS OF LENDING

 

6.1          Conditions Precedent to Effectiveness of this Agreement.

 

The effectiveness of this Agreement is subject to the following conditions to be fulfilled or performed at or prior to the Closing, which conditions are for the exclusive benefit of the Agent and the Lenders and may be waived in whole or in part by the Agent with the unanimous approval of the Lenders in their sole discretion:

 

(1)                                   Deliveries . The Agent shall have received on behalf of the Agent and all Lenders at or prior to the Closing the following, each dated such date (or another date satisfactory to the Agent), in form and substance satisfactory to the Agent and its counsel, each acting reasonably:

 

(a)                                   a copy of the audited consolidated financial statements of IPSCO Consolidated for their most recently completed Financial Year and the unaudited financial statements of IPSCO Consolidated for their most recently released Financial Quarter;

 

(b)                                  concurrently with the annual statements provided pursuant to Subsection 6.1(1)(a) above, a schedule detailing all Consolidated Subsidiaries of IPSCO which includes, without limitation, a breakdown of the ownership, the Revenue and Assets of each Consolidated Subsidiary, and the percentage that such Revenue and Assets bears to the Consolidated Revenue and Consolidated Assets of IPSCO Consolidated for their most recently completed Financial Year; and

 

(c)                                   a Compliance Certificate of the Chief Financial Officer of IPSCO based on the financial statements of IPSCO Consolidated for the Financial Quarter ending September 30, 2004.

 

(2)                                   Agency Fee Agreement . The Agent shall have received the Agency Fee Agreement executed by IPSCO.

 

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(3)                                   Payment of Fees and Expenses . The Agent shall have received payment of that portion of the Agency Fee due on Closing, and IPSCO shall have paid all expenses, including legal expenses, incurred by the Agent in connection with this Agreement and the other Credit Documents.

 

(4)                                   Compliance with Environmental Laws . The Agent shall have received evidence, satisfactory to it in its sole discretion, that IPSCO and its Subsidiaries are in compliance with all Environmental Laws, the non-compliance with which, singly or in the aggregate, would have a Material Adverse Effect.

 

(5)                                   Termination of Revolving Credit Agreement:  The Agent shall have received from the Borrowers party thereto an irrevocable notice and direction to terminate the Existing Revolving Agreement, and from any Borrower or Borrowers, a Borrowing Notice requesting an Advance to be paid directly to the Agent in its capacity as agent under such agreement in an amount sufficient to pay in full all amounts, if any, owing thereunder.

 

(6)                                   No Material Adverse Effect . The Agent shall have received a certificate from the Chief Financial Officer of IPSCO, satisfactory to the Agent in its sole discretion, that no event, condition or circumstance has arisen or is likely to arise which would have a Material Adverse Effect.

 

(7)                                   Confirmation of Debt Ratings . The Lenders shall have received confirmation of minimum senior debt ratings for IPSCO of BB (stable) from S&P and of Ba3 (stable) from Moody’s.

 

(8)                                   Due Diligence . The Agent and the Lenders shall have completed and be satisfied with their due diligence, in their sole discretion, including being satisfied with all environmental, legal, accounting and tax matters affecting the Borrowers and all Material Subsidiaries, a 3 year financial forecast for IPSCO Consolidated, and all matters disclosed by any information provided to the Agent or the Lenders in connection with any requests for information or documents made by the Agent or the Lenders.

 

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(9)                                   Representations and Warranties . The representations and warranties in Article 7 shall be true and correct other than those representations and warranties which by their terms are stated to be made as of a specific date, which representations and warranties shall be true and correct as of such specific date.

 

6.2          Conditions Precedent to initial Accommodations.

 

The obligation of the Lenders or any one or more of them to make its initial Accommodation to a Borrower that is a party to this Agreement on Closing, is subject to the following conditions being fulfilled or performed at or prior to the time of the initial Accommodation to that Borrower, which conditions are for the exclusive benefit of the Agent and the Lenders and may be waived in whole or in part by the Agent with the unanimous approval of the Lenders in their sole discretion:

 

(1)                                   Deliveries . The Agent shall have received on behalf of the Agent and all Lenders, at or prior to the time of the initial Accommodation to such Borrower the following, each dated such day (or another day satisfactory to the Agent), in form and substance satisfactory to the Agent and its counsel, each acting reasonably:

 

(a)                                   certified copies of: (i) the charter documents and the by-laws of such Borrower; (ii) the resolutions of the board of directors (or comparable body), or any duly authorized committee thereof, of such Borrower authorizing such Borrower to avail itself of the Accommodations and to enter into this Agreement and the other Credit Documents to which such Borrower is a party and the completion of all transactions contemplated hereunder and thereunder; and (iii) all other instruments evidencing necessary corporate action of such Borrower and of required Authorizations, if any, with respect to such matters;

 

(b)                                  certified copies of:  (i) the charter documents and the by-laws of each Wholly-Owned Material Subsidiary that is not a Borrower and which is providing a Subsidiary Guarantee; (ii) the resolutions of the board of directors (or comparable body), or any duly authorized committee thereof, of each such Wholly-Owned Material Subsidiary authorizing each such Wholly-Owned Material Subsidiary to

 

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enter into its respective Subsidiary Guarantee and the other Credit Documents, if any, to which such Wholly-Owned Material Subsidiary is or may be a party and the completion of all transactions contemplated hereunder and thereunder; and (iii) all other instruments evidencing necessary corporate action of such Wholly-Owned Material Subsidiary and of required Authorizations, if any, with respect to such matters;

 

(c)                                   certificates of the Secretary or an Assistant Secretary of such Borrower certifying the names and true signatures of its officers authorized to sign this Agreement and the other Credit Documents to which such Borrower is a party;

 

(d)                                  a certificate of status, compliance, good standing or like certificate with respect to such Borrower issued by appropriate government officials of its jurisdiction of formation;

 

(e)                                   a legal opinion of counsel to such Borrower, in form and substance satisfactory to the Lenders confirming the due authorization, execution, validity and enforceability of this Agreement, and the Ancillary Agreements to which such Borrower is a party, as well as such other matters as counsel to the Agent may reasonably request;

 

(f)                                     in the case of IPSCO, an IPSCO Guarantee in respect of each Borrower other than IPSCO;

 

(g)                                  in the case of each Borrower other than IPSCO and of each Wholly-Owned Material Subsidiary that is not a Borrower, a Subsidiary Guarantee from each such Borrower and each such Wholly-Owned Material Subsidiary, it being acknowledged by each such Borrower and each such Wholly-Owned Material Subsidiary delivering a Subsidiary Guarantee that:  (i) the Borrowers and such Wholly-Owned Material Subsidiaries are operated as part of one consolidated business entity and are directly dependent upon each other for and in connection with their respective business activities and their respective financial resources; and (ii) each such Borrower and each such Wholly-Owned Material Subsidiary

 

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has received and continues to receive direct and indirect economic and financial benefits from the provision of Accommodations to the Borrowers; and

 

(h)                                  if required by any Lender, a grid prom