EXHIBIT 4.3
FIRST AMENDING AGREEMENT
THIS AGREEMENT made as of the 4th day of October, 2002.
BETWEEN:
LUSCAR COAL LTD., a corporation incorporated under the laws of the
Province of Alberta
(herein called the "Borrower")
-and-
THE BANK OF NOVA SCOTIA, BNP PARIBAS (CANADA) AND BANK OF MONTREAL
(herein collectively called the "Lenders")
-and-
THE BANK OF NOVA SCOTIA, a Canadian chartered bank, in its capacity as
administrative agent of the Lenders under the Credit Agreement
(herein called the "Administrative Agent")
WHEREAS the Borrower, the Lenders and the Administrative Agent entered
into a revolving credit agreement made as of October 5, 2001, pursuant to which
the Lenders established a revolving credit facility in favour of the Borrower
(the "Credit Agreement");
AND WHEREAS the parties hereto wish to amend certain provisions of the
Credit Agreement;
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the
mutual covenants and agreements contained herein, the parties covenant and agree
as follows:
ARTICLE 1
DEFINED TERMS
1.1 CAPITALIZED TERMS. All Capitalized terms which are used
herein without being specifically defined herein shall have the meaning
ascribed thereto in the Credit Agreement as amended hereby.
ARTICLE 2
AMENDMENTS
2.1 GENERAL RULE. Subject to the terms and conditions herein
contained, the Credit Agreement is hereby amended to the extent necessary to
give effect to the provisions of this agreement and to incorporate the
provisions of this agreement into the Credit Agreement.
2.2 DEFINED TERMS. Section 1.01 of the Credit Agreement is
hereby amended by deleting the reference to "October 4, 2002" in the definition
of "Bullet Maturity Date" and replacing it with "October 3, 2003".
2.3 RESTRICTIVE COVENANTS. Section 11.03(d) of the Credit
Agreement is hereby amended by deleting the reference to "$10,000,000 and" in
the nineteenth line thereof and replacing it with "$10,000,000 or".
2.4 AFFIRMATIVE COVENANTS. Section 11.01(b)(vi) of the Credit
Agreement is hereby amended by deleting the reference to "October 31st" and
replacing it with "August 31st".
ARTICLE 3
MISCELLANEOUS
3.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. This agreement
shall not be effective unless the following conditions have been satisfied:
(a) each of the Guarantors shall have signed the Consent and
Confirmation forming part hereof; and
(b) no Default shall have occurred and be continuing or
would arise upon this agreement becoming effective.
3.2 FUTURE REFERENCES TO THE CREDIT AGREEMENT. On and after the
date of this agreement, each reference in the Credit Agreement to "this
agreement", "hereunder", "hereof", or words of like import referring to the
Credit Agreement, and each reference in any related document to the "Credit
Agreement", "thereunder", "thereof", or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby. The Credit Agreement, as amended hereby, is and shall continue
to be in full force and effect and is hereby in all respects ratified and
confirmed.
3.3 GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario.
3.4 ENUREMENT. This agreement shall enure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
permitted assigns.
3.5 CONFLICT. If any provision of this agreement is inconsistent
or conflicts with any provision of the Credit Agreement, the relevant provision
of this agreement shall prevail and be paramount.
3.6 COUNTERPARTS. This agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute one and the same instrument.
Executed counterparts shall be delivered to the Administrative Agent or
transmitted to the Administrative Agent by telefacsimile and the parties adopt
signatures so transmitted to the Administrative Agent as original signatures;
provided, however, that any party transmitting its signature to the
Administrative Agent by telefacsimile shall promptly deliver to the
Administrative Agent an original of the executed counterpart of this agreement
which was so transmitted.
IN WITNESS WHEREOF the parties hereto have executed and
delivered this agreement on the date first above written.
LUSCAR COAL LTD.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
By: /s/ X. Xxxxx Maydonik, Q.C.
--------------------------------
Name: X. Xxxxx Maydonik, Q.C.
Title: General Counsel & Corporate
Secretary
THE BANK OF NOVA SCOTIA, as Agent
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Ram Xxxxxxxxxx
--------------------------------
Name: Ram Xxxxxxxxxx
Title: Associate - Director
THE BANK OF NOVA SCOTIA, as Lender
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Ram Xxxxxxxxxx
--------------------------------
Name: Ram Xxxxxxxxxx
Title: Associate - Director
BNP PARIBAS (CANADA)
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Energy & Project Finance
By: /s/ Xxxxxxx Gosseil
--------------------------------
Name: Xxxxxxx Gosseil
Title: Director
Energy & Project Finance
BANK OF MONTREAL
By: /s/ X. Xxxxxx
--------------------------------
Name: X. Xxxxxx
Title: Vice-President
CONSENT AND CONFIRMATION
Each of the undersigned (the "Guarantors") hereby consents to the
above-noted amendment to the Credit Agreement and hereby confirms its
obligations under its respective guarantee each dated as of October 10, 2001 in
favour of the Administrative Agent and the Lenders in connection with the
obligations of the Borrower to the Administrative Agent and the Lenders under
the Credit Agreement, as amended as aforesaid.
DATED as of the 4th day of October, 2002.
LUSCAR LTD.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President, Finance
By: /s/ X. Xxxxx Maydonik, Q.C.
--------------------------------
Name: X. Xxxxx Maydonik, Q.C.
Title: General Counsel & Corporate
Secretary
3718492 CANADA INC.
By: /s/ X. Xxxxx Maydonik, Q.C.
--------------------------------
Name: X. Xxxxx Maydonik, Q.C.
Title: General Counsel & Corporate
Secretary
LUSCAR ENERGY PARTNERSHIP
By: /s/ Jowdat Waheed
-----------------------------------
Name: Jowdat Waheed
Title: Senior Vice President and Chief
Financial Officer
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, General
Counsel and Corporate Secretary
LUSCAR COAL INCOME FUND
By: /s/ Jowdat Waheed
----------------------------------
Name: Jowdat Waheed
Title: Trustee
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Trustee, Secretary
